sgmo-20211231xex1045_ame






                                  AMENDED AND RESTATED  OFFICE/LABORATORY LEASE    BETWEEN    POINT RICHMOND R&D ASSOCIATES II, LLC (LANDLORD)  AND  SANGAMO THERAPEUTICS, INC. (TENANT)    501 Canal Boulevard  Point Richmond, California                                                          TABLE OF CONTENTS    Page    ARTICLE 1 BASIC LEASE PROVISIONS ...................................................................... 1  1.1 BASIC LEASE PROVISIONS ....................................................................1  1.2 ENUMERATION OF EXHIBITS AND RIDER(S) ................................... 4  1.3 DEFINITIONS ............................................................................................ 4  ARTICLE 2 PREMISES, EXISTING LEASE, TERM, AND PARKING ........................ 9  2.1 LEASE OF PREMISES; EXISTING LEASE ............................................ 9  2.2 TERM ........................................................................................................10  2.3 FAILURE TO DELIVER POSSESSION OF SUITE D .......................... 12  2.4 CONDITION OF PREMISES .................................................................. 12  2.5 PARKING ................................................................................................. 13  ARTICLE 3 RENT ........................................................................................................... 13  ARTICLE 4 RENT ADJUSTMENTS AND PAYMENTS .............................................. 13  4.1 RENT ADJUSTMENTS ........................................................................... 13  4.2 STATEMENT OF LANDLORD .............................................................. 14  4.3 BOOKS AND RECORDS .........................................................................15  4.4 TENANT OR LEASE SPECIFIC TAXES ................................................16  ARTICLE 5 SECURITY .................................................................................................. 16  ARTICLE 6 SERVICES ................................................................................................... 18  6.1 LANDLORD’S GENERAL SERVICES ................................................. 18  6.2 UTILITIES AND JANITORIAL SERVICES .......................................... 19  6.3 ADDITIONAL AND AFTER HOURS SERVICES ................................ 19  6.4 TELEPHONE SERVICES. ....................................................................... 19  6.5 DELAYS IN FURNISHING SERVICES ................................................ 20  6.6 CHOICE OF SERVICE PROVIDER ....................................................... 21  6.7 SIGNAGE ................................................................................................. 21  ARTICLE 7 USE OF PREMISES; LANDLORD’S ACCESS RIGHTS ......................... 23  7.1 USE OF PREMISES ................................................................................. 23  7.2 LANDLORD ACCESS TO PREMISES; APPROVALS ......................... 33  7.3 QUIET ENJOYMENT .............................................................................. 35  7.4 TRANSPORTATION DEMAND MANAGEMENT PROGRAM .......... 35   -i-    TABLE OF CONTENTS  (continued)  Page    ARTICLE 8 MAINTENANCE ........................................................................................ 35  8.1 LANDLORD’S MAINTENANCE ............................................................35  8.2 TENANT’S MAINTENANCE ..................................................................36  8.3 SUDDEN WATER INTRUSION. .............................................................36  ARTICLE 9 ALTERATIONS AND IMPROVEMENTS ................................................ 37  9.1 TENANT ALTERATIONS ...................................................................... 37  9.2 LIENS ........................................................................................................38  9.3 EMERGENCY GENERATORS ...............................................................39  ARTICLE 10 ASSIGNMENT AND SUBLETTING ....................................................... 41  10.1 ASSIGNMENT AND SUBLETTING ..................................................... 41  10.2 RECAPTURE ........................................................................................... 44  10.3 EXCESS RENT .........................................................................................44  10.4 TENANT LIABILITY ...............................................................................44  10.5 ASSUMPTION AND ATTORNMENT ................................................... 44  10.6 PROCESSING EXPENSES ......................................................................45  10.7 EFFECT OF IMPERMISSIBLE TRANSFER ......................................... 45  ARTICLE 11 DEFAULT AND REMEDIES ................................................................... 45  11.1 DEFAULT ................................................................................................ 45  11.2 LANDLORD’S REMEDIES .....................................................................46  11.3 ATTORNEY’S FEES ............................................................................... 48  11.4 BANKRUPTCY ....................................................................................... 49  11.5 LANDLORD’S DEFAULT .......................................................................49  11.6 TENANT’S SELF HELP RIGHT .............................................................49  11.7 NO WAIVER .............................................................................................50  ARTICLE 12 SURRENDER OF PREMISES .................................................................. 50  12.1 IN GENERAL ........................................................................................... 50  12.2 LANDLORD’S RIGHTS. ..........................................................................51  ARTICLE 13 HOLDING OVER ...................................................................................... 51  ARTICLE 14 DAMAGE BY FIRE OR OTHER CASUALTY ....................................... 51  14.1 SUBSTANTIAL UNTENANTABILITY ................................................ 51   -ii-   -iii-      TABLE OF CONTENTS  (continued)  Page    14.2 INSUBSTANTIAL UNTENANTABILITY ............................................ 52  14.3 RENT ABATEMENT .............................................................................. 53  14.4 WAIVER OF STATUTORY REMEDIES ................................................53  ARTICLE 15 EMINENT DOMAIN ................................................................................ 53  15.1 TAKING OF WHOLE OR SUBSTANTIAL PART. ................................53  15.2 TAKING OF PART ...................................................................................53  15.3 COMPENSATION ................................................................................... 54  ARTICLE 16 INSURANCE ............................................................................................. 54  16.1 TENANT’S INSURANCE ........................................................................54  16.2 FORM OF POLICIES ............................................................................... 54  16.3 LANDLORD’S INSURANCE ..................................................................55  16.4 WAIVER OF SUBROGATION ................................................................55  16.5 NOTICE OF CASUALTY ....................................................................... 56  ARTICLE 17 WAIVER OF CLAIMS AND INDEMNITY ............................................ 56  17.1 WAIVER OF CLAIMS .............................................................................56  17.2 INDEMNITY ............................................................................................ 56  17.3 WAIVER OF CONSEQUENTIAL DAMAGES ..................................... 57  ARTICLE 18 RULES AND REGULATIONS ................................................................ 58  18.1 RULES ...................................................................................................... 58  18.2 ENFORCEMENT ......................................................................................58  ARTICLE 19 LANDLORD’S RESERVED RIGHTS ......................................................58  ARTICLE 20 ESTOPPEL CERTIFICATE ...................................................................... 59  20.1 IN GENERAL ........................................................................................... 59  20.2 ENFORCEMENT ......................................................................................59  ARTICLE 21 RELOCATION OF TENANT ................................................................... 59  ARTICLE 22 REAL ESTATE BROKERS ...................................................................... 59  ARTICLE 23 MORTGAGEE PROTECTION ................................................................. 60  23.1 SUBORDINATION AND ATTORNMENT ........................................... 60  23.2 MORTGAGEE PROTECTION .................................................................61  ARTICLE 24 NOTICES ................................................................................................... 61  





 






 -iv-      TABLE OF CONTENTS  (continued)  Page    ARTICLE 25 MISCELLANEOUS .................................................................................. 61  25.1 LATE CHARGES ......................................................................................61  25.2 ARBITRATION ....................................................................................... 62  25.3 NO DISCRIMINATION ...........................................................................63  25.4 FINANCIAL STATEMENTS .................................................................. 63  25.5 OPTION .................................................................................................... 63  25.6 AUTHORITY ........................................................................................... 63  25.7 ENTIRE AGREEMENT ........................................................................... 64  25.8 RESERVED .............................................................................................. 64  25.9 EXCULPATION ........................................................................................64  25.10 ACCORD AND SATISFACTION ........................................................... 64  25.11 LANDLORD’S OBLIGATIONS ON SALE OF BUILDING ................. 64  25.12 BINDING EFFECT ...................................................................................64  25.13 CAPTIONS ................................................................................................65  25.14 TIME; APPLICABLE LAW; CONSTRUCTION.................................... 65  25.15 ABANDONMENT ................................................................................... 65  25.16 LANDLORD’S RIGHT TO PERFORM TENANT’S DUTIES ...............65  25.17 SECURITY SYSTEM .............................................................................. 65  25.18 NO LIGHT, AIR OR VIEW EASEMENTS ............................................ 66  25.19 RECORDATION .......................................................................................66  25.20 SURVIVAL .............................................................................................. 66  25.21 OFAC ........................................................................................................ 66  25.22 INSPECTION BY A CASP IN ACCORDANCE WITH CIVIL CODE  SECTION 1938. ........................................................................................ 67  25.23 COUNTERPARTS ....................................................................................67  25.24 EXHIBITS AND RIDERS ........................................................................68  1    OFFICE/LABORATORY LEASE      ARTICLE 1  BASIC LEASE PROVISIONS    1.1 BASIC LEASE PROVISIONS    In the event of any conflict between these Basic Lease Provisions and any other Lease  provision, such other Lease provision shall control.  (1) BUILDING AND ADDRESS:  501 Canal Boulevard  Point Richmond, California 94804    (2) LANDLORD AND ADDRESS:    Point Richmond R&D Associates II, LLC  1120 Nye Street, Suite 400  San Rafael, California 94901    Notices to Landlord shall be addressed:    Point Richmond R&D Associates II, LLC  c/o Wareham Property Group  1120 Nye Street, Suite 400  San Rafael, California 94901    With a copy to:    Stewart Ward & Josephson LLP  1601 Response Road, Suite 360  Sacramento, California 95815  Attention: Winnifred C. Ward, Esq.    And to:    Shartsis Friese LLP  One Maritime Plaza, 18th Floor  San Francisco, California 94901  Attention: Senior Real Estate Partner  And with regard to notices to Mortgagee in Section 11.6(a) only:  Unum Life Insurance Company of America  2211 Congress Street, B268  Portland, ME 04122  2      (3) TENANT AND NOTICE ADDRESS:    (a) Name and Entity:    SANGAMO THERAPEUTICS, INC., a Delaware corporation    (b) Federal Tax Identification Number: 68-0359556    Tenant shall promptly notify Landlord of any change in the foregoing items.    (c) Notices to Tenant shall be addressed:    Sangamo Therapeutics, Inc.  7000 Marina Boulevard  Brisbane, CA 94005  Attn: Facilities/Chris Holman/Katie Cary  With a copy to:  Sangamo Therapeutics, Inc.  7000 Marina Boulevard  Brisbane, CA 94005  Attn: Legal    And to:    Farella Braun + Martel  235 Montgomery Street  17th Floor  San Francisco, California 94104  Attention: Gregory B. Shean    (4) DATE OF LEASE: as of October 18, 2021    (5) TERM: October 1, 2021 (the “Commencement Date”), through August 31,  2031 (the “Expiration Date”).    (6) SUITE D TERM: November 1, 2021 (the “Suite D Commencement Date”)  through the Expiration Date.    (7) MONTHLY BASE RENT:      PERIOD  SUITE A SUITE C-2 SUITE F SUITES G,  H & J  SUITE K SUITE D TOTAL  10/01/21 – 10/31/21 $67,145.00 $10,324.00 $13,106.00 $21,886.31 $12,813.00 $0.00 $125,274.31  3      PERIOD  SUITE A SUITE C-2 SUITE F SUITES G,  H & J  SUITE K SUITE D TOTAL  11/01/21 – 11/30/21 $67,145.00 $10,324.00 $13,106.00 $21,886.31 $12,813.00 $20,472.32 $145,746.63  12/01/21 – 07/31/22 $67,145.00 $10,582.00 $13,106.00 $21,886.31 $12,813.00 $20,472.32 $146,004.63  08/01/22 – 08/31/22 $67,145.00 $10,582.00 $13,434.00 $21,886.31 $12,813.00 $20,472.32 $146,332.63  09/01/22 – 11/30/22 $68,824.00 $10,582.00 $13,434.00 $22,433.47 $13,133.00 $20,984.12 $149,390.59  12/01/22 – 07/31/23 $68,824.00 $10,846.00 $13,434.00 $22,433.47 $13,133.00 $20,984.12 $149,654.59  08/01/23 – 08/31/23 $68,824.00 $10,846.00 $13,769.00 $22,433.47 $13,133.00 $20,984.12 $149,989.59  09/01/23 – 11/30/23 $70,545.00 $10,846.00 $13,769.00 $22,994.31 $13,461.00 $21,508.73 $153,124.04  12/01/23 – 07/31/24 $70,545.00 $11,117.00 $13,769.00 $22,994.31 $13,461.00 $21,508.73 $153,395.04  08/01/24 – 08/31/24 $70,545.00 $11,117.00 $14,114.00 $22,994.31 $13,461.00 $21,508.73 $153,740.04  09/01/24 – 11/30/24 $72,308.00 $11,117.00 $14,114.00 $23,569.17 $13,798.00 $22,046.45 $156,952.62  12/01/24 – 07/31/25 $72,308.00 $11,395.00 $14,114.00 $23,569.17 $13,798.00 $22,046.45 $157,230.62  08/01/25 – 08/31/25 $72,308.00 $11,395.00 $14,466.00 $23,569.17 $13,798.00 $22,046.45 $157,582.62  09/01/25 – 11/30/25 $74,116.00 $11,395.00 $14,466.00 $24,158.40 $14,143.00 $22,597.61 $160,876.01  12/01/25 – 07/31/26 $74,116.00 $11,680.00 $14,466.00 $24,158.40 $14,143.00 $22,597.61 $161,161.01  08/01/26 – 08/31/26 $74,116.00 $11,680.00 $14,828.00 $24,158.40 $14,143.00 $22,597.61 $161,523.01   COMBINED PREMISES  09/01/26 – 08/31/27 $166,270.89  09/01/27 – 08/31/28 $171,359.76  09/01/28 – 08/31/29 $176,500.55  09/01/29 – 08/31/30 $181,795.57  09/01/30 – 08/31/31 $187,249.44      (8) PREMISES: The leasable areas within the Building, as outlined on Exhibit A  hereto, containing a total Rentable Area of 59,485 square feet and comprised of:    (a) Suite A*: 26,629 square feet    (b) Suite C-2: 5,165 square feet    (c) Suite F: 6,153 square feet    (d) Suites G, H, and J: 8,541 square feet    (e) Suite K: 5,000 square feet    (f) Suite D: 7,997 square feet    *Previously identified as Suites A, B and C-1 in the Existing Lease.  





 






4    (9) SECURITY DEPOSIT: One Hundred Sixty-six Thousand Two Hundred  Seventy and 89/100 Dollars ($166,270.89) (i.e., Fifty-three Thousand Seven Hundred Nineteen  and 50/100 Dollars ($53,719.50) held under the Existing Lease, plus the additional sum of One  Hundred Twelve Thousand Five Hundred Fifty-one and 39/100 Dollars ($112,551.39); the  “Additional Security Deposit”).    (10) TENANT’S USE OF PREMISES: Research and development laboratory use,  manufacturing, and related office use.    (11) PARKING:    (a) From the Commencement Date through the day before the Suite D  Commencement Date: Up to 151 unreserved parking spaces on surface lot(s) serving the Building.    (b) As of the Suite D Commencement Date through the balance of the Term:  Up to 175 unreserved parking spaces on surface lot(s) serving the Building.    (12) BROKERS: None    (13) TENANT IMPROVEMENT ALLOWANCES:    (a) Existing Lease Remaining Tenant Improvement Allowance:  $1,650,000.00, including $150,000.00 designated as the Suite K Tenant Improvement Allowance  in the Existing Lease.    (b) Extension Tenant Improvement Allowance: $750,000.00    (c) Suite D Tenant Improvement Allowance: $240,000.00    1.2 ENUMERATION OF EXHIBITS AND RIDER(S)    The Exhibits and Rider set forth below and attached to this Lease are incorporated in this  Lease by this reference:    EXHIBIT A Outline of Premises  EXHIBIT A-1 Emergency Generator Site  EXHIBIT B Work Letter Agreement  EXHIBIT C-1 Laboratory Rules and Regulations  EXHIBIT C-2 Rules and Regulations  EXHIBIT D Form of SNDA    1.3 DEFINITIONS    For purposes hereof, in addition to terms defined elsewhere in this Lease, the following  terms shall have the following meanings:    ADDITIONAL SECURITY DEPOSIT: The amount specified in Section 1.1.  5    AFFILIATE: Any corporation or other business entity that is currently owned or controlled  by, owns or controls, or is under common ownership or control with Tenant or Landlord, as the  case may be.    BANKRUPTCY CODE: As defined in Section 11.3.    BUILDING: The building located at the address specified in Section 1.1. The Building  includes office, laboratory and other uses.    CABLE: As defined in Section 8.2.  CITY: The City of Richmond, California.  COMMENCEMENT DATE: The date determined pursuant to Article 2, which date is  anticipated to be the Projected Commencement Date specified in Section 1.1.    COMMON AREAS: All areas of the Project made available by Landlord from time to  time for the general common use or benefit of the tenants of the Building, and their employees and  invitees, or the public, as such areas currently exist and as they may be changed from time to time.    CONFIDENTIALITY AGREEMENT: As defined in Section 7.2(f).  DEFAULT: As defined in Section 11.1.  DEFAULT RATE: Two (2) percentage points above the rate then most recently announced  by Bank of America N.A. at its San Francisco main office as its base lending reference rate, from  time to time announced, but in no event higher than the maximum rate permitted by Law.    EXISTING LEASE: As defined in Section 2.1.    EXISTING LEASE REMAINING TENANT IMPROVEMENT ALLOWANCE: As  defined in Section 1.1.    EXPIRATION DATE: The date specified in Section 1.1.    EXTENSION TENANT IMPROVEMENT ALLOWANCE: As defined in Section 1.1.    FORCE MAJEURE: Any accident, casualty, act of God, war or civil commotion, strike  or labor troubles, or any cause whatsoever beyond the reasonable control of the party obligated to  perform under this Lease, including pandemics or other widespread health emergencies, water  shortages, energy shortages or governmental preemption in connection with an act of God, a  national emergency, or by reason of Law, or by reason of the conditions of supply and demand  which have been or are affected by act of God, war or other emergency; provided, however, in no  event shall any Force Majeure event excuse or delay Tenant's obligation to timely pay all Monthly  Base Rent, additional Rent and other sums owing under this Lease.    HAZARDOUS MATERIALS: As defined in Section 7.1(f).  HAZARDOUS MATERIALS LAWS: As defined in Section 7.1(f).  6    INDEMNITEES: Collectively, Landlord, any Mortgagee or ground lessor of the Property,  the property manager and the leasing manager for the Property, and their respective partners,  members, directors, officers, agents and employees.  LAND: The parcel(s) of real estate on which the Building and Project are located.  LAWS OR LAW: All laws, ordinances, rules, regulations, other requirements, orders,  rulings or decisions adopted or made by any governmental body, agency, department or judicial  authority having jurisdiction over the Property, the Premises or Tenant’s activities at the Premises  and any covenants, conditions or restrictions of record which affect the Property.    LEASE: This instrument and all exhibits and riders attached hereto, as may be amended  from time to time.    MONTHLY BASE RENT: The monthly base rent specified in Section 1.1.    MORTGAGEE: Any holder of a mortgage, deed of trust or other security instrument  encumbering the Property.    NAMED TENANT: As defined in Section 2.2(b)(6).    NATIONAL HOLIDAYS: New Year’s Day, Memorial Day, Independence Day, Labor  Day, Thanksgiving Day and Christmas Day and other holidays recognized by Landlord and the  janitorial and other unions servicing the Building in accordance with their contracts.    OPERATING EXPENSES: All costs, expenses and disbursements of every kind and  nature which Landlord shall pay or become obligated to pay in connection with the ownership,  management, operation, maintenance, replacement and repair of the Building and the Property,  including, without limitation, property management fees not to exceed five percent (5%) of  Landlord’s rent received from Building tenants; costs and expenses of any capital improvement  that is Landlord’s responsibility under this Lease and that (X) is intended to reduce Operating  Expenses, or (Y) is required by Laws first enacted after the Commencement Date, and if Landlord  elects to amortize such costs and expenses, then such costs and expenses shall be amortized over  the useful life of the improvement as reasonably determined by Landlord, together with interest  thereon at 7%; an equitable allocation of management office expenses (including, without  limitation, market rate office rent, supplies, equipment, salaries, wages, bonuses and other  compensation relating to employees of Landlord or its agents engaged in the management,  operation, repair, or maintenance of the Building); and, if applicable, the cost of operating a fitness  center and/or any conference centers that are available for use by Tenant (which cost will be  equitably allocated between tenants of the Building to whom such facilities are available for use),  as reasonably determined by Landlord. Landlord shall not collect or be entitled to collect more  than one hundred percent (100%) of the Operating Charges actually paid by Landlord in  connection with the Project in any calendar year. If any Operating Expense, though paid in one  year, relates to more than one calendar year, such expense shall be proportionately allocated among  such related calendar years. Operating Expenses for the Property that are not, in Landlord’s  reasonable discretion, allocable solely to either the office, laboratory or retail portion of the  Building shall be equitably allocated by Landlord between/amongst such uses. The above  enumeration of services and facilities shall not be deemed to impose an obligation on Landlord to  7    make available or provide such services or facilities except to the extent if any that Landlord has  specifically agreed elsewhere in this Lease to make the same available or provide the same.    PERMITTED TRANSFEREE: As defined in Section 10.1(e).    PREMISES: The space located in the Building at the Suite Numbers listed in Section 1.1  and depicted on Exhibit A attached hereto. Prior to the Suite D Commencement Date, the Premises  shall mean all of the suites listed in Section 1.1, other than Suite D. As of the Suite D  Commencement Date, the Premises shall mean all of the suites listed in Section 1.1, including  Suite D.    PROJECT or PROPERTY: The Project consists of the office and laboratory/research  building located at the street address specified in Section 1.1, and associated surface parking as  designated by Landlord from time to time, landscaping and improvements, together with the Land,  any associated interests in real property, and the personal property, fixtures, machinery, equipment,  systems and apparatus located in or used in conjunction with any of the foregoing. The Project  may also be referred to as the Property.    PROJECT’S SUSTAINABILITY PRACTICES: The operations and maintenance  practices for the Building, whether incorporated into the Building’s Rules and Regulations,  construction rules and regulations or separate written sustainability policies of Landlord with  respect to the Building or the Project, as the same may be created and revised from time to time  (upon not less than thirty days’ prior written notice to Tenant), so long as such operations and  maintenance practices and any revisions thereto, do not materially and negatively impact Tenant’s  use of the Premises or materially increase Tenant’s costs, addressing, among other things: energy  efficiency; energy measurement and reporting; water usage; recycling, composting, and waste  management; indoor air quality; and chemical use.    PROJECTED COMMENCEMENT DATE: The date specified in Section 1.1.  REAL PROPERTY: The Property excluding any personal property.  RENT: Collectively, Monthly Base Rent, Rent Adjustments and Rent Adjustment  Deposits, and all other charges, payments, late fees or other amounts required to be paid by Tenant  under this Lease.    RENT ADJUSTMENT: Any amounts owed by Tenant for payment of Operating Expenses  and/or Taxes. The Rent Adjustments shall be determined and paid as provided in Article 4.    RENT ADJUSTMENT DEPOSIT: An amount equal to Landlord’s reasonable estimate of  the Rent Adjustment attributable to each month of the applicable calendar year (or partial calendar  year) during the Term, as provided in Article 4.    RENTABLE AREA OF THE PREMISES: The amount of square footage set forth in  Section 1.1, which amount may change from time to time due to Landlord’s remeasurement of the  Premises or the Building, provided such change does not result in any increase to the Monthly  Base Rent set forth in Section 1.1 above or to Tenant’s Share.  





 






8    SECURITY DEPOSIT: The funds specified in Section 1.1, if any, deposited by Tenant  with Landlord as security for Tenant’s performance of its obligations under this Lease.    STANDARD OPERATING HOURS: Monday through Friday from 6:00 A.M. to  6:00 P.M., excluding National Holidays.    SUITE D: The portion of the Premises identified as “Suite D” in Section 1.1.  SUITE D COMMENCEMENT DATE: The date set forth in Section 1.1.  SUITE D TENANT IMPROVEMENT ALLOWANCE: As defined in Section 1.1.    SUITE D TENANT WORK: As defined in the Work Letter.    SUITE D TERM: The term as to Suite D only, commencing on the Suite D  Commencement Date and expiring on the Expiration Date.    TAXES: All federal, state and local governmental taxes, assessments, license fees and  charges of every kind or nature, whether general, special, ordinary or extraordinary, which  Landlord shall pay or become obligated to pay because of or in connection with the ownership,  leasing, management, control, sale, transfer, or operation of the Property or any of its components  (including any personal property used in connection therewith) or Landlord’s business of owning  and operating the Property, which may also include any rental, revenue, general gross receipts or  similar taxes levied in lieu of or in addition to general real and/or personal property taxes. For  purposes hereof, Taxes for any year shall be Taxes which are assessed for any period of such year,  whether or not such Taxes are billed and payable in a subsequent calendar year. There shall be  included in Taxes for any year the amount of all fees, costs and expenses (including reasonable  attorneys’ fees) paid by Landlord during such year in seeking or obtaining any refund or reduction  of Taxes. Taxes for any year shall be reduced by the net amount of any tax refund received by  Landlord attributable to such year. If a special assessment payable in installments is levied against  any part of the Property, Taxes for any year shall include only the installment of such assessment  and any interest payable or paid during such year. Notwithstanding the foregoing, Taxes shall not  include any transfer taxes, interest charges or penalties incurred as a result of Landlord’s failure to  timely pay Taxes or federal or state inheritance, general income, gift or estate taxes, except that if  a change occurs in the method of taxation resulting in whole or in part in the substitution of any  such taxes, or any other assessment, for any Taxes as above defined, such substituted taxes or  assessments shall be included in the Taxes. Tenant and Landlord acknowledge that Proposition  13 was adopted by the voters of the State of California in the June, 1978 election and that  assessments, taxes, fees, levies and charges may be imposed by governmental agencies for such  purposes as fire protection, street, sidewalk, road, utility construction and maintenance, refuse  removal and for other governmental services which may formerly have been provided without  charge to property owners or occupants. It is the intention of the parties that all new and increased  assessments, taxes, fees, levies and charges due to any cause whatsoever are to be included within  the definition of Taxes for purposes of this Lease.    TENANT ADDITIONS: Collectively, the Tenant Work and Tenant Alterations.  9    TENANT ALTERATIONS: Any alterations, improvements, additions, installations or  construction in or to the Premises or any Building systems serving the Premises (excluding Tenant  Work); and any supplementary air-conditioning systems installed by Landlord or by Tenant at  Landlord’s request pursuant to Section 6.1(b).    TENANT IMPROVEMENT ALLOWANCES: As defined in Section 1.1.  TENANT INDEMNITEE:  As defined in Section 17.2(b).  TENANT PARTY OR TENANT PARTIES: As defined in Section 7.1(f)(1)(xii).    TENANT WORK: All work installed or furnished to the Premises by Tenant, if any,  pursuant to the Work Letter.    TENANT’S SHARE: The percentage that represents the ratio of the Rentable Area of the  Premises to the Rentable Area of the Building. As of the date of this Lease, Tenant’s Share is  63.33%; as of the date that Suite D is added to the Premises, Tenant’s Share will be 73.16%.  Tenant acknowledges that the Rentable Area of the Premises or Building may change from  remeasurement or otherwise during the Term or as a result of Tenant leasing additional space  within the Building.    TERM: The term of this Lease commencing on the Commencement Date and expiring on  the Expiration Date, and extension of the term, if any.    TERMINATION DATE: The Expiration Date or such earlier date as this Lease terminates  or Tenant’s right to possession of the Premises terminates.    WORK LETTER: The Agreement regarding the manner of completion of the Tenant Work  set forth on Exhibit B attached hereto.    ARTICLE 2  PREMISES, EXISTING LEASE, TERM, AND PARKING    2.1 LEASE OF PREMISES; EXISTING LEASE    (a) Landlord hereby leases to Tenant and Tenant hereby leases from Landlord  the Premises for the Term and upon the terms, covenants and conditions provided in this Lease.  The parties acknowledge and agree that the Rentable Area set forth in this Lease has been  conclusively determined and is deemed final for the purposes of this Lease.    (b) Existing Lease. Tenant currently leases the Premises (other than Suite D)  pursuant to the terms of that certain Triple Net Laboratory Lease dated as of May 23, 1997,  together with an Addendum thereto dated May 28, 1997, as amended by those certain letter  agreements dated June 15, 1999, April 21, 2000 and November 3, 2000, that certain First  Amendment to Lease dated March 12, 2004, that certain Lease Addendum dated December 12,  2006, that certain Second Amendment to Lease dated March 15, 2007, that certain Lease  Addendum III dated April 2, 2012, that certain Third Amendment to Lease dated August 1, 2013,  that certain Lease Addendum dated December 1, 2013, that certain Fourth Amendment to Lease  10    dated June 10, 2016, that certain Fifth Amendment to Lease dated July 10, 2017, that certain Sixth  Amendment to Lease dated May 11, 2018, that certain Seventh Amendment to Lease dated May  20, 2020, that certain Eighth Amendment to Lease dated May 29, 2020, and that certain Ninth  Amendment to Lease dated January 4, 2021 (collectively, the “Existing Lease”), the term of which  lease expires as of August 31, 2026. Through this Lease, the parties agree that Tenant has  exercised its final remaining option to extend the term of the Existing Lease, and that no further  options to extend remain under the Existing Lease or this Lease. It is the intent of the parties that  this Lease shall amend, restate, supersede and replace in its entirety the Existing Lease as of the  Commencement Date. Landlord hereby leases to Tenant and Tenant hereby leases from Landlord  the Premises for the Term and upon the terms, covenants and conditions provided in this Lease.    2.2 TERM    (a) Initial Term. The initial Term of this Lease shall be as set forth in Section  1.1(5); provided, however, the Suite D Term shall commence as of the Suite D Commencement  Date, as set forth in Section 1.1(6).    (b) Option to Extend. Provided that (i) Tenant has not sublet over thirty percent  (30%) of the Premises (other than to Permitted Transferees), and (ii) at the time of exercise and at  all times prior to the commencement of the Extended Term, there is not an uncured Default under  this Lease, the Term of this Lease shall be subject to one (1) extension option for an additional  period of 60 months (the “Extension Option”), commencing as of the expiration of the Initial Term,  and expiring on the date that is 60 full calendar months thereafter (the “Extended Term”),  exercisable as follows:    (1) The Extension Option shall be upon the same material terms and  conditions contained in this Lease, except that (i) the initial Monthly Base Rent for the Premises  shall be equal to the greater of (A) the Fair Market Rent (as defined in Section 2.2(b)(2) below)  for the Premises as of the first month of the Extension Option determined in the manner set forth  in Section 2.2(b)(3) below, or (B) the Monthly Base Rent in effect as of the expiration of the Initial  Term; and (ii) Tenant shall accept the Premises in an “as is” condition without any obligation of  Landlord to repaint, remodel, repair, improve or alter the Premises.    (2) Tenant’s election to exercise the Extension Option must be given to  Landlord in writing no less than 270 days and no more than 365 days prior to the expiration of the  initial Term (the “Extension Notice”). Within thirty (30) days of Landlord’s receipt of the  Extension Notice, Landlord shall send Tenant written notice of Landlord’s determination of the  Fair Market Rent for the Premises (the “Fair Market Rent Notice”). For purposes of this Section,  the term “Fair Market Rent” shall mean the base rental rate, periodic rental rate adjustment and  other charges and increases, if any, for space comparable in size, location and quality to the  Premises under a primary lease (and not sublease) to new or renewing tenants, for a comparable  term, if applicable and taking into consideration such amenities as existing improvements, view,  floor on which the Premises are situated and the like, situated in buildings in Richmond, California;  provided, however, that the Monthly Base Rent shall be increased by three percent (3%) each year  during the Extension Option. Notwithstanding anything to the contrary contained herein, the  Extension Option shall automatically terminate and be of no further force or effect, whether or not  Tenant has timely exercised the Extension Option, if a Default exists at the time of exercise of the  11    Extension Option or at the time of commencement of the Extended Term.    (3) If Tenant properly exercises the Extension Option, the Monthly  Base Rent during the Extended Term shall be determined in the following manner. The Monthly  Base Rent as of the commencement of the Extended Term shall be adjusted to an amount equal to  the Fair Market Rent for the Premises as specified in the Fair Market Rent Notice, subject to  Tenant’s right of arbitration as set forth below. If Tenant believes that the Fair Market Rent  specified in the Fair Market Rent Notice exceeds the actual Fair Market Rent for the Premises as  of the date of such notice, then Tenant shall so notify Landlord within thirty (30) days of Tenant’s  receipt of the Fair Market Rent Notice. If Tenant fails to so notify Landlord within such 30-day  period, Landlord’s determination of the Fair Market Rent shall be final and binding upon the  parties. If the parties are unable to agree upon the Fair Market Rent within ten (10) days after  Landlord’s receipt of Tenant’s objection to the Fair Market Rent Notice, the amount of Monthly  Base Rent as of the commencement of the Extended Term shall be determined as follows:    (i) Within 30 days after the 10-day period has expired and the  parties have failed to agree on the Fair Market Rent, Tenant, at its sole expense, shall obtain and  deliver in writing to Landlord a determination of the Fair Market Rent for the Premises for a term  equal to the Extended Term from a broker (“Tenant’s Broker”) licensed in the State of California  and engaged in the office and life sciences brokerage business in Richmond, California, for at least  the immediately preceding five (5) years. If Landlord accepts such determination, the Monthly  Base Rent for the Extended Term shall be adjusted to an amount equal to the amount determined  by Tenant’s Broker.    (ii) If Landlord does not accept such determination, within 15  days after receipt of the determination of Tenant’s broker, Landlord shall designate a broker  (“Landlord’s Broker”) licensed in the State of California and engaged in the office and life sciences  brokerage business in Richmond, California, for at least the immediately preceding five (5) years.  Landlord’s Broker and Tenant’s Broker shall name a third broker, similarly qualified, within five  (5) days after appointment of Landlord’s Broker. Landlord’s Broker and Tenant’s Broker shall  each determine the Fair Market Rent for the Premises as of the commencement of the Extended  Term for a term equal to the Extended Term within 15 days after the appointment of the third  broker. The Monthly Base Rent payable by Tenant effective as of the commencement of the  Extended Term shall be adjusted to an amount equal to the determination of Fair Market Rent  made by either Landlord’s Broker or Tenant’s Broker that the third broker finds to be closer to the  Fair Market Rent.    (iii) Landlord shall pay the costs and fees of Landlord’s Broker  in connection with any determination hereunder, and Tenant shall pay the costs and fees of  Tenant’s Broker in connection with such determination. The costs and fees of any third broker  shall be paid one-half by Landlord and one-half by Tenant.    (4) If the amount of the Fair Market Rent is not known as of the  commencement of the Extended Term, then Tenant shall continue to pay the Monthly Base Rent  for the Premises in effect at the expiration of the Extended Term until the amount of the Fair  Market Rent is determined. When such determination is made, Tenant shall pay any deficiency to  Landlord upon demand. Notwithstanding any provision of this Section 2.2(b) to the contrary, in  





 






12    no event shall the Monthly Base Rent for the Premises payable during the Extended Term be less  than such Monthly Base Rent in effect prior to the commencement of the Extended Term.    (5) In connection with the extension of the Term pursuant to Tenant’s  exercise of the Extension Option, the parties acknowledge and agree that Landlord shall not be  responsible for the payment to any real estate broker, salesperson or finder claiming to have  represented Tenant of any commission, finder’s fee or other compensation in connection with or  as a consequence of Tenant’s exercise of the Extension Option.    (6) Notwithstanding anything to the contrary contained herein, Tenant’s  rights under this Section 2.2(b) are personal to the original Tenant executing this Lease and any  Permitted Transferee to which this Lease is assigned (“Named Tenant”) and shall not be assigned  or assignable, in whole or in part, to any third party other than a Permitted Transferee. Any  assignment or other transfer of such rights by Named Tenant in contravention of this paragraph  shall be void and of no force or effect. Without limiting the generality of the foregoing, no  sublessee of the Premises shall be permitted to exercise the rights granted to Tenant under this  Section 2.2(b).    2.3 FAILURE TO DELIVER POSSESSION OF SUITE D    If Suite D is not delivered to Tenant by the Suite D Commencement Date for any reason,  Landlord shall not be liable for any claims, damages or liabilities by reason thereof, nor affect the  validity of this Lease or the obligations of Tenant hereunder; provided, however, the Suite D  Commencement Date shall be adjusted to reflect the actual delivery date, and Landlord and Tenant  shall enter into a commercially reasonable form of memorandum to memorialize the Suite D  Commencement Date, and the Commencement Date as to the balance of the Premises shall remain  as set forth in the Basic Lease Information. Notwithstanding the foregoing, if Landlord fails to  deliver Suite D to Tenant by the date (the “Outside Date”) that is sixty (60) days after the Suite D  Commencement Date (which Outside Date shall be subject to extension day-for-day for Force  Majeure events), Landlord will credit against the first installments of Monthly Base Rent and Rent  Adjustments Deposits first becoming due under this Lease for Suite D an amount equal to one (1)  day of Monthly Base Rent and Rent Adjustments Deposits for Suite D for each day that delivery  is delayed beyond the Outside Date. The remedy set forth above shall be Tenant’s sole remedy in  the event of a delay in delivering possession of Suite D to Tenant. In no event shall Landlord be  liable for special or consequential damages as a result of any such delay.    2.4 CONDITION OF PREMISES    Tenant shall notify Landlord in writing within ninety (90) days (or six (6) months, as to  issues with Suite D’s HVAC, as defined in Section 6.1(a)(1) below, only) after the Suite D  Commencement Date of any defects in Suite D claimed by Tenant (the “Suite D Defect Notice”).  As specified in Section 2.1 above, Tenant currently leases the Premises (other than Suite D)  pursuant to the terms of the Existing Lease. Therefore, except for defects stated in the Suite D  Defect Notice, Tenant shall be conclusively deemed to have (a) accepted the Premises “AS IS” in  the condition existing on (i) the date of this Lease, as to all of the Premises other than Suite D, and  (ii) as of the date Tenant first takes possession of Suite D, as to Suite D, and (b) waived all claims  relating to the current condition of the Premises, and relating to the condition of Suite D as of the  13    date Tenant takes possession thereof. Landlord shall proceed diligently to correct the defects stated  in the Suite D Defect Notice unless Landlord disputes the existence of any such defects. No  agreement of Landlord to alter, remodel, decorate, clean or improve the Premises or the Real  Property and no representation regarding the condition of the Premises or the Real Property has  been made by or on behalf of Landlord to Tenant, except as may be specifically stated in this Lease  or in the Work Letter.    2.5 PARKING    During the Term, Tenant may use the number of spaces specified in Section 1.1 at no  additional cost to Tenant. Tenant acknowledges and agrees that the parking spaces serving the  Project may include a mixture of spaces for compact vehicles as well as full-size passenger  automobiles, and that Tenant shall not use parking spaces for vehicles larger than the striped size  of the parking spaces. Tenant shall comply with any and all reasonable parking rules and  regulations from time to time established by Landlord, including a requirement that Tenant pay to  Landlord for any and all loss or other damage caused by persons or vehicles related to use by  Tenant of Tenant’s parking spaces. Tenant shall not allow any vehicles using Tenant’s parking  spaces to be parked, loaded or unloaded except in accordance with this Section, including in the  areas and in the manner reasonably designated by Landlord or its parking operator for such  activities.    ARTICLE 3  RENT    From and after the Commencement Date, Tenant shall pay to Landlord at the address  specified in Section 1.1, or to such other persons, or at such other places designated by Landlord,  without any prior demand therefor in immediately available funds and without any deduction or  offset whatsoever, Rent, including Monthly Base Rent and Rent Adjustments in accordance with  Article 4, during the Term. Monthly Base Rent shall be paid monthly in advance on or prior to the  first day of each month of the Term. Monthly Base Rent shall be prorated for partial months within  the Term. Tenant’s covenant to pay Rent shall be independent of every other covenant in this  Lease.    ARTICLE 4  RENT ADJUSTMENTS AND PAYMENTS    4.1 RENT ADJUSTMENTS    (a) From and after the Commencement Date, Tenant shall pay to Landlord Rent  Adjustments with respect to each calendar year (or partial calendar year in the case of the year in  which the Commencement Date and the Termination Date occur) as follows:    (1) The Rent Adjustment Deposit representing Tenant’s Share of  Operating Expenses for the applicable calendar year (or partial calendar year), monthly during the  Term with the payment of Monthly Base Rent;    (2) The Rent Adjustment Deposit representing Tenant’s Share of Taxes  for the applicable calendar year (or partial calendar year), monthly during the Term with the  14    payment of Monthly Base Rent; and    (3) Any Rent Adjustments due in excess of the Rent Adjustment  Deposits in accordance with Section 4.2. Rent Adjustments due from Tenant to Landlord for any  calendar year (or partial calendar year) shall be Tenant’s Share of Operating Expenses for such  calendar year (or partial calendar year) and Tenant’s Share of Taxes for such calendar year (or  partial calendar year).    (b) On or before the beginning of each calendar year or with Landlord’s  Statement (as defined in Section 4.2 below), Landlord may estimate and notify Tenant in writing  of its reasonable estimate of the amount of Operating Expenses and Taxes payable by Tenant for  such calendar year. Prior to the first determination by Landlord of the amount of Operating  Expenses and Taxes for the first calendar year, Landlord may reasonably estimate such amounts  in the foregoing calculation. Landlord shall have the right from time to time during any calendar  year to provide a new or revised estimate of Operating Expenses and/or Taxes and to notify Tenant  in writing thereof, of corresponding adjustments in Tenant’s Rent Adjustment Deposit payable  over the remainder of such year; provided, however, that such new Rent Adjustment Deposit shall  not be effective until thirty (30) days after Landlord’s notice. The last estimate by Landlord shall  remain in effect as the applicable Rent Adjustment Deposit unless and until Landlord notifies  Tenant in writing of a change, which notice may be given by Landlord from time to time during  any calendar year throughout the Term.    (c) Landlord shall have the right, at its sole discretion, from time to time, to  equitably allocate certain Operating Expenses among only certain tenants of the Project as to any  expense or cost that relates to a repair, replacement or service that benefits only those tenants, and  the Rent Adjustments shall reflect any such allocations.    (d) Notwithstanding anything in this Article 4 to the contrary, Tenant’s Share  of Operating Expenses shall not increase by more than 5% per calendar year on a compounding  and cumulative basis (e.g. Tenant’s Share of Operating Expenses for calendar year 2021 shall not  exceed 105% of Tenant’s Share of Operating Expenses for calendar year 2020; Tenant’s Share of  Operating Expenses for calendar year 2022 shall not exceed 105% of the maximum allowable  amount of Tenant’s Share of Operating Expenses permitted for calendar year 2021, etc.). By way  of illustration, if Tenant’s Share of Operating Expenses were to be $1.00 per rentable square foot  per month for calendar year 2020, then Tenant’s Share of Operating Expenses for calendar year  2021 would not exceed $1.05 per rentable square foot per month, and Tenant’s Share of Operating  Expenses for calendar year 2022 would not exceed $1.1025 per rentable square foot per month.  The foregoing notwithstanding, nothing in this paragraph shall entitle Tenant to any refund, credit  or offset in the event that the actual Operating Expenses for any calendar year during the Term is  less than or equal to the Operating Expenses for any prior calendar year during the Term.  Notwithstanding any contrary provision of this Lease, the terms of this paragraph shall not apply  (i) to any space into which Tenant may expand, or (ii) during any period of time following the  current Term. For the avoidance of doubt, in no event shall the provisions of this paragraph apply  to Tenant’s Share of Taxes, which shall not be subject to any limitations or caps.    4.2 STATEMENT OF LANDLORD  15    As soon as practical after the expiration of each calendar year (but in no event more than  one hundred fifty (150) days after the expiration of each calendar year), Landlord will furnish  Tenant with a statement respecting the prior calendar year (“Landlord’s Statement”) showing the  following:    (a) Operating Expenses and Taxes for such calendar year;    (b) The amount of Rent Adjustments due Landlord for the last calendar year,  less credit for Rent Adjustment Deposits paid, if any; and    (c) Any change in the Rent Adjustment Deposit due monthly in the current  calendar year, including the amount or revised amount due for months preceding any such change  pursuant to Landlord’s Statement.    Tenant shall pay to Landlord within thirty (30) days after receipt of such statement any  amounts for Rent Adjustments then due in accordance with Landlord’s Statement. Any amounts  due from Landlord to Tenant pursuant to this Section shall be credited to the Rent Adjustment  Deposit next coming due, or refunded to Tenant within forty-five (45) days after delivery of such  statement if the Term has already expired or otherwise terminated, provided Tenant is not in default  hereunder. No interest or penalties shall accrue on any amounts that Landlord is obligated to credit  or refund to Tenant by reason of this Section 4.2. Landlord’s failure to deliver Landlord’s  Statement or to compute the amount of the Rent Adjustments shall not constitute a waiver by  Landlord of its right to deliver such items nor constitute a waiver or release of Tenant’s obligations  to pay such amounts. The Rent Adjustment Deposit shall be credited against Rent Adjustments  due for the applicable calendar year (or partial calendar year). During the last complete calendar  year or during any partial calendar year in which this Lease terminates, Landlord may include in  the Rent Adjustment Deposit its estimate of Rent Adjustments which might not be finally  determined until after the termination of this Lease. Tenant’s obligation to pay Rent Adjustments,  and Landlord’s obligation to refund Rent Adjustments, survive the expiration or termination of  this Lease.    4.3 BOOKS AND RECORDS    Landlord shall maintain books and records showing Operating Expenses and Taxes in  accordance with sound accounting and management practices, consistently applied. Tenant or its  representative (which representative shall be a certified public accountant licensed to do business  in the state in which the Property is located and whose primary business is certified public  accounting and who shall not be paid on a contingency basis) shall have the right, for a period of  one hundred twenty (120) days following the date upon which Landlord’s Statement is delivered  to Tenant, to examine Landlord’s books and records (which shall be made available by Landlord  at an office in the San Francisco Bay area) with respect to the items in the foregoing statement of  Operating Expenses and Taxes during normal business hours, upon written notice, delivered at  least five (5) business days in advance. Tenant shall pay for all costs of such examination. If  Tenant performs such examination, but does not object in writing to Landlord’s Statement within  one hundred eighty (180) days after Tenant’s receipt thereof, specifying the nature of the item in  dispute and the reasons therefor, then Landlord’s Statement shall be considered final and accepted  by Tenant and Tenant shall be deemed to have waived its right to dispute Landlord’s Statement.  





 






16    If Tenant does dispute any Landlord’s Statement, Tenant shall deliver a copy of any such audit to  Landlord at the time of notification of the dispute. If Tenant does not provide such notice of  dispute and a copy of such audit to Landlord within such one hundred eighty (180) day period, it  shall be deemed to have waived such right to dispute Landlord’s Statement. Any amount due to  Landlord as shown on Landlord’s Statement, whether or not disputed by Tenant as provided herein  shall be paid by Tenant when due as provided above, without prejudice to any such written  exception. In no event shall Tenant be permitted to examine Landlord’s records or to dispute any  statement of Operating Expenses and Taxes unless Tenant has paid and continues to pay all Rent  when due (after any applicable notice and cure periods). Upon resolution of any dispute with  respect to Operating Expenses and Taxes, Tenant shall either pay Landlord any shortfall or  Landlord shall credit Tenant against the next Rent coming due (until such credit is exhausted) or,  if the Term has ended, pay to Tenant within sixty (60) days, any overages due to Tenant. The  records obtained by Tenant shall be treated as confidential and neither Tenant nor any of its  representatives or agents shall disclose or discuss the information set forth in the audit to or with  any other person or entity; provided, however, such duty of confidentiality shall not apply to  information which (a) is lawfully known by or in the possession of Tenant prior to disclosure of  such information by Landlord; or (b) is or becomes publicly available through no fault on the part  of Tenant; or (c) is required to be disclosed by law, court order, subpoena or other legal  compulsion; or (d) is received from third parties who have not been instructed by Landlord or  otherwise agreed to maintain the subject information confidential (the “Confidentiality  Requirement”). Tenant shall indemnify and hold Landlord harmless for any losses or damages  arising out of the breach of the Confidentiality Requirement.    4.4 TENANT OR LEASE SPECIFIC TAXES    In addition to Monthly Base Rent, Rent Adjustments, Rent Adjustment Deposits and other  charges to be paid by Tenant, Tenant shall pay to Landlord, upon demand, any and all taxes payable  by Landlord (other than federal or state inheritance, general income, gift or estate taxes) whether  or not now customary or within the contemplation of the parties hereto: (a) upon, allocable to, or  measured by the Rent payable hereunder, including any gross receipts tax or excise tax levied by  any governmental or taxing body with respect to the receipt of such Rent; or (b) upon or with  respect to the possession, leasing, operation, management, maintenance, alteration, repair, use or  occupancy by Tenant of the Premises or any portion thereof; or (c) upon the measured value of  Tenant’s personal property located in the Premises or in any storeroom or any other place in the  Premises or the Property, or the areas used in connection with the operation of the Property, it  being the intention of Landlord and Tenant that, to the extent possible, such personal property  taxes shall be billed to and paid directly by Tenant; (d) resulting from any Tenant Work or Tenant  Alterations, whether title thereto is in Landlord or Tenant; or (e) upon this transaction. Taxes or  supplemental taxes paid by Tenant pursuant to this Section 4.4 shall not be included in any  computation of Taxes payable pursuant to Sections 4.1 and 4.2, but standard property management  fees shall apply to any such payments.    ARTICLE 5  SECURITY    (a) Simultaneously with Tenant’s execution and delivery of this Lease to  Landlord, Tenant shall pay Landlord in immediately available funds the cash amount of the  17    Additional Security Deposit set forth in Section 1.1 of this Lease, which Additional Security  Deposit, plus the amount held under the Existing Lease (as set forth in Section 1.1), Landlord shall  hold under this Lease for the full and faithful performance by Tenant of each and every term,  provision, covenant, and condition of this Lease. If Tenant fails timely to perform any of the terms,  provisions, covenants and conditions of this Lease, which failure results in a Default under this  Lease, then Landlord may use, apply, or retain the whole or any part of the Security Deposit for  the payment of any Rent not paid when due, for the cost of repairing any damage, for the cost of  cleaning the Premises, for the payment of any other sum which Landlord may expend or may be  required to expend by reason of Tenant’s failure to perform, and otherwise for compensation of  Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to perform,  including, but not limited to, any loss of future Rent and any damage or deficiency in the reletting  of the Premises (whether such loss, damages or deficiency accrue before or after summary  proceedings or other reentry by Landlord) and the amount of the unpaid past Rent, future Rent  loss, and all other losses, costs and damages, that Landlord would be entitled to recover if Landlord  were to pursue recovery under Section 11.2(b) or (c) of this Lease or California Civil Code Section  1951.2 or 1951.4 (and any supplements, amendments, replacements and substitutions thereof and  therefor from time to time). If Landlord so uses, applies or retains all or part of the Security  Deposit, Tenant shall within ten (10) business days after demand pay or deliver to Landlord in  immediately available funds the sum necessary to replace the amount used, applied or retained. If  there is no Default on the part of Tenant, the Security Deposit (except any amount retained for  application by Landlord as provided herein) shall be returned to Tenant with thirty (30) days after  the latest of: (i) the Expiration Date or earlier termination of the Lease; (ii) the removal of Tenant  from the Premises; or (iii) the surrender of the Premises by Tenant to Landlord in accordance with  this Lease; provided, however, in no event shall any such return be construed as an admission by  Landlord that Tenant has performed all of its obligations hereunder.    (b) The Security Deposit shall not be deemed an advance rent deposit or an  advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure  to perform, nor shall any action or inaction of Landlord with respect to it or its use or application  be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord  shall not be required to keep the Security Deposit separate from its general funds and shall not  have any fiduciary duties or other duties (except as set forth in this Section) concerning the Security  Deposit. Tenant shall not be entitled to any interest on the Security Deposit. In the event of any  sale, lease or transfer of Landlord’s interest in the Building, Landlord shall have the right to transfer  the Security Deposit, or balance thereof, to the transferee and any such transfer shall release  Landlord from all liability for the return of the Security Deposit. Tenant thereafter shall look solely  to such transferee for the return or payment of the Security Deposit. Tenant shall not assign or  encumber or attempt to assign or encumber the Security Deposit; provided, however, that if Tenant  assigns its interest in this Lease as permitted herein, Landlord shall return the Security Deposit to  such assignee pursuant to the terms of this Lease governing the return of the Security Deposit.  Tenant hereby waives any and all rights of Tenant under the provisions of Section 1950.7 of the  California Civil Code, and any and all rights of Tenant under all provisions of Law, now or  hereafter enacted, regarding security deposits.  18    ARTICLE 6  SERVICES    6.1 LANDLORD’S GENERAL SERVICES    (a) Landlord shall furnish the following services the cost of which services shall  be included in Operating Expenses or paid directly by Tenant to the utility or service provider:    (1) heat, ventilation and air-conditioning (“HVAC”) in the Premises at  all times, as necessary for the comfortable occupancy of the Premises and sufficient for Tenant’s  office and laboratory operations, subject to reasonable limitations of the HVAC equipment and  compliance with all applicable mandatory regulations and Laws;    (2) tempered and cold water for normal and customary use in the  Premises and in lavatories in common with other tenants from the regular supply of the Building;    (3) customary cleaning and janitorial services in the Common Areas  five (5) days per week, excluding National Holidays; and    (4) washing of the outside windows in the Premises weather permitting  at intervals determined by Landlord.    (b) Landlord shall provide a security program for the Building (but not  individually for Tenant or the Premises), the cost of which program shall be an Operating Expense.  Landlord shall not be liable in any manner to Tenant or any other Tenant Parties for any acts  (including criminal acts) of others, or for any direct, indirect, or consequential damages, or any  injury or damage to, or interference with, Tenant’s business, including, but not limited to, loss of  profits, loss of rents or other revenues, loss of business opportunity, loss of goodwill or loss of use,  or other loss or damage, bodily injury or death, related to any malfunction, circumvention or other  failure of any security program, or for the failure of any security program to prevent bodily injury,  death, or property damage, or loss, or to apprehend any person suspected of causing such injury,  death, damage or loss.    (c) Landlord shall furnish to the Premises replacement lamps, bulbs, ballasts  and starters used in any normal Building lighting installed in the Premises, except that if the  replacement or repair of such items is a result of negligence of Tenant, its employees, agents,  servants, licensees, subtenants, contractors or invitees, such cost shall be paid by Tenant within  ten (10) days after notice from Landlord and shall not be included as part of Operating Expenses.    (d) If Tenant uses heat generating machines or equipment in the Premises to an  extent which materially and adversely affects the temperature otherwise maintained by the air-  cooling system or whenever the occupancy or electrical load materially and adversely affects the  temperature otherwise maintained by the air-cooling system, Landlord reserves the right to install  or to require Tenant to install reasonably required supplementary air-conditioning units in the  Premises. Tenant shall bear all reasonable costs and expenses related to the installation,  maintenance and operation of such units.    (e) Tenant shall pay Landlord at rates reasonably fixed by Landlord for all  19    tenants in the Building, charges for all water furnished to the Premises beyond that described in  Section 6.1(a)(2), including the expenses of installation of a water line, meter and fixtures.    6.2 UTILITIES AND JANITORIAL SERVICES    Except as otherwise provided in the definition of Operating Expenses, all utility services  not directly contracted for and paid by Tenant to the utility provider, and used in the production of  heating and cooling and air supply and exhaust from the central HVAC systems serving the  Building and Premises, including, without limitation, electricity and gas, as well as water and  sewer services, shall constitute Operating Expenses. All utility services used by Tenant within the  Premises, including, without limitation, electricity and gas, shall be paid for by Tenant either  through a separate charge or as part of Operating Expenses. Such charges shall be based upon  Tenant’s usage, which usage: (a) as to electricity, other than overhead lighting, shall be measured  by a separate meter or sub-meter that is already installed in the Premises, and paid by Tenant within  30 days after billing as additional Rent under this Lease; and (b) as to all other utilities, shall either  be reasonably estimated by Landlord and paid by Tenant within 30 days after billing as additional  Rent under this Lease or included in Operating Expenses. In addition, Tenant shall provide its  own janitorial services to the Premises, using a janitorial service reasonably acceptable to Landlord  or shall make arrangements with Landlord for Landlord, through Landlord’s vendors, to perform  such Premises cleaning services, and shall pay the costs thereof directly to Landlord.  Notwithstanding any provision of this Lease to the contrary, Tenant shall not make any alterations  or additions to the electric equipment or systems, in each instance, without the prior written  approval of Landlord, which approval shall not be unreasonably withheld, conditioned or delayed  so long as such alterations or additions (i) do not exceed the capacity of the wiring, feeders and  risers and (ii) are in compliance with the City’s building code. Tenant’s use of electric current  shall at no time exceed the capacity of the wiring, feeders and risers providing electric current to  the Premises or the Building. The consent of Landlord to the installation of electric equipment  shall not relieve Tenant from the obligation to limit usage of electricity to no more than such  capacity.    6.3 ADDITIONAL AND AFTER HOURS SERVICES    At Tenant’s written request (which request may be made by email), Landlord shall furnish  additional quantities of any of the services or utilities specified in Section 6.1, if Landlord can  reasonably do so, on the terms set forth herein. To the extent not paid directly by Tenant to the  utility provider, for services or utilities requested by Tenant and furnished by Landlord, Tenant  shall pay to Landlord as a charge therefor Landlord’s prevailing rates charged from time to time  for such services and utilities, as additional Rent under this Lease. Without limiting the generality  of the foregoing, for HVAC service in the office areas of the Premises that is outside of Standard  Operating Hours, Landlord’s prevailing rate as of the date of this Lease includes a one (1) hour  minimum per activation. If Tenant shall fail to make any such payment, Landlord may, upon  notice to Tenant and in addition to Landlord’s other remedies under this Lease, discontinue any or  all of such additional services.    6.4 TELEPHONE SERVICES  





 






20    All telephone and communication connections which Tenant may desire shall be subject  to Landlord’s prior written approval, in Landlord’s reasonable discretion, and the location of all  Cables and the work in connection therewith shall be performed by contractors approved by  Landlord, which approval shall not unreasonably be withheld and shall be deemed given if not  denied by notice with the reasons for such denial, given to Tenant within five (5) days following  Tenant’s second request for approval, and shall be subject to the reasonable direction of Landlord  and in compliance with Landlord’s then current Building standards for Cable installation. Tenant  shall be responsible for and shall pay for all costs incurred in connection with the installation of  Cables in the Premises, including any hook up, access and maintenance fees related to the  installation of such Cables in the Premises and the commencement of service therein, and the  maintenance thereafter of such Cables, and there shall be included in Operating Expenses for the  Building all installation, removal, hook-up or maintenance costs incurred by Landlord in  connection with Cables serving the Building which are not allocable to any individual users of  such service but are allocable to the Building generally. If Tenant fails to maintain all Cables in  the Premises and such failure adversely affects or interferes with the operation or maintenance of  any other Cables serving the Building, and Tenant fails to remedy such failure within five (5)  Business Days after receipt of written notice from Landlord, Landlord or any vendor hired by  Landlord may enter into and upon the Premises forthwith and perform such repairs, restorations  or alterations as Landlord deems reasonably necessary in order to eliminate any such interference  (and Landlord may recover from Tenant all of Landlord’s costs in connection therewith). If  required by Landlord, no later than the Termination Date Tenant shall remove all Cables installed  by Tenant for and during Tenant’s occupancy and surrender the installation in a condition  previously approved by Landlord. Tenant agrees that neither Landlord nor any of its agents or  employees shall be liable to Tenant, or any of Tenant’s employees, agents, customers or invitees  or anyone claiming through, by or under Tenant, for any damages, injuries, losses, expenses,  claims or causes of action because of any interruption, diminution, delay or discontinuance at any  time for any reason in the furnishing of any telephone or other communication service to the  Premises and the Building.    6.5 DELAYS IN FURNISHING SERVICES    Tenant agrees that Landlord shall not be in breach of this Lease nor be liable to Tenant for  damages or otherwise, for any failure to furnish, or a delay in furnishing, or a change in the quantity  or character of any service when such failure, delay or change is occasioned, in whole or in part,  by repairs, improvements or mechanical breakdowns, by the act or default of Tenant or other  parties or by an event of Force Majeure. No such failure, delay or change shall be deemed to be  an eviction or disturbance of Tenant’s use and possession of the Premises, or relieve Tenant from  paying Rent or from performing any other obligations of Tenant under this Lease, without any  deduction or offset. Failure to any extent to make available, or any slowdown, stoppage, or  interruption of, the specified utility services resulting from any cause, including changes in service  provider or Landlord’s compliance with any voluntary or similar governmental or business  guidelines now or hereafter published or any requirements now or hereafter established by any  governmental agency, board, or bureau having jurisdiction over the operation of the Property, shall  not render Landlord liable in any respect for damages to either persons, property, or business, nor  be construed as an eviction of Tenant or work an abatement of Rent, nor relieve Tenant of Tenant’s  obligations for fulfillment of any covenant or agreement hereof. Should any equipment or  machinery furnished by Landlord break down or for any cause cease to function properly, Landlord  21    shall use reasonable diligence to repair same promptly, but Tenant shall have no claim for  abatement of Rent or damages on account of any interruption of service occasioned thereby or  resulting therefrom. Tenant hereby waives any benefits of any applicable existing or future Law,  including the provisions of California Civil Code section 1932(1), permitting the termination of  this Lease due to such interruption, failure or inability. Notwithstanding anything to the contrary  in the foregoing, if Tenant is unable to use the Premises as a result of an interruption in service,  and if any such interruption (i) continues for five (5) consecutive business days following Tenant’s  delivery to Landlord of notice of such interruption, (ii) is caused by the negligence of Landlord  and the cure of same is within the reasonable control of Landlord (and is not attributable to any  acts or omissions of Tenant), (iii) materially and adversely affects Tenant’s ability to conduct  business in the Premises, or any material portion thereof, and (iv) on account of such interruption  Tenant ceases doing business in the Premises, Rent shall thereafter abate to the extent the Premises  are materially and adversely affected, commencing on the sixth (6th) business day following  Tenant’s notice hereunder and continuing for the remainder of the interruption.    6.6 CHOICE OF SERVICE PROVIDER    Tenant acknowledges that Landlord may, at Landlord’s sole option, to the extent permitted  by applicable law, elect to change, from time to time, the company or companies which provide  services (including electrical service, gas service, water, telephone and technical services) to the  Building, the Premises and/or its occupants. Notwithstanding anything to the contrary set forth in  this Lease, Tenant acknowledges that Landlord has not and does not make any representations or  warranties concerning the identity or identities of the company or companies which provide  services to the Building and the Premises or its occupants, and Tenant acknowledges that the  choice of service providers and matters concerning the engagement and termination thereof shall  be solely that of Landlord in its reasonably discretion. Landlord shall not engage a vendor to be  the exclusive provider of utility services to the Premises which is not a regulated public utility or  which pays any compensation to Landlord or its Affiliates for the right to provide services to the  Building. The foregoing provision is not intended to modify, amend, change or otherwise derogate  any provision of this Lease concerning the nature or type of service to be provided or any specific  information concerning the amount thereof to be provided. Tenant agrees to reasonably cooperate  with Landlord and each of its service providers in connection with any change in service or  provider.    6.7 SIGNAGE    (a) Named Tenant shall, in accordance with Building standard signage  programs, continue to have the right (as it has under the Existing Lease) to maintain one (1) exterior  non-illuminated sign displaying Tenant’s trade name on the exterior of the Building (“Tenant’s  Exterior Sign”).    (b) Notwithstanding anything to the contrary contained in this Lease and in  addition to the maintenance and repair obligations of Tenant set forth in Section 8.2 below, any  and all maintenance and repair relating to Tenant’s Exterior Sign shall be the sole responsibility  of Tenant including, without limitation: (i) ensuring all penetrations of the exterior of the Project  related to Tenant’s Exterior Sign remain “watertight/waterproof” meaning that no portions of  Tenant’s Exterior Sign cause or permit any water to penetrate or damage any portion of the Project,  22    (ii) cleaning Tenant’s Exterior Sign whenever necessary in order to ensure that its appearance  complies with the “Class-A” nature of the Project (as determined by Landlord in its reasonable  discretion), (iii) promptly repairing any cracks in or other damage to the exterior façade of the  Project caused by Tenant’s Exterior Sign (as determined by Landlord in its reasonable discretion),  (iv) taking any necessary measures to prevent or abate the presence of birds which may congregate  on or around Tenant’s Exterior Sign (as determined in Landlord’s reasonable discretion), and (v)  making any other repair or maintenance to Project that Landlord reasonably determines necessary  due to the installation, existence, or removal of Tenant’s Exterior Sign. Tenant shall promptly  perform such maintenance and repair obligations in a good and workmanlike manner, such that  Tenant’s Exterior Sign appears and operates at all times in the manner intended at the time it was  designed and installed.    (c) Notwithstanding anything to the contrary contained in this Lease, Tenant  shall, prior to the expiration or earlier termination of this Lease, and at Tenant’s sole cost and  expense, remove Tenant’s Exterior Sign and restore any portion(s) of the Building or Project  impacted by Tenant’s Exterior Sign (as determined by Landlord in its reasonable discretion) to the  condition of such portion(s) of the Building or Project which existed prior to the installation of  Tenant’s Exterior Sign. If any patching of holes or other cosmetic blemishes relating to Tenant’s  Exterior Sign are visible in the reasonable opinion of Landlord (including, without limitation,  discoloration of the exterior façade materials of the Building) following such removal by Tenant,  Landlord may require that the underlying façade materials be replaced with new materials  consistent in color, appearance and texture to the original façade materials, at Tenant’s sole cost  and expense.    (d) All costs pertaining to the maintenance, repair and removal of Tenant’s  Exterior Sign or any part thereof shall be paid by Tenant when due. The provisions of this Lease  pertaining to mechanic’s liens shall apply to Tenant’s Exterior Sign. Tenant shall insure Tenant’s  Exterior Sign pursuant to the provisions of Section 16.1 below in the same manner and to the same  extent as the Tenant Additions.    (e) Notwithstanding anything to the contrary contained in this Lease, Landlord  shall have the right, but not the obligation, to perform any of the obligations of Tenant set forth in  this Section 6.7 on Tenant’s behalf, if, after ten (10) days following the delivery of written notice  to Tenant of the necessity of any work or obligation set forth herein, Tenant has not caused the  commencement of such work or fulfillment of such obligation (or if the completion of such work  or fulfillment of such obligation has commenced but ceases to be diligently pursued by Tenant).  Tenant shall promptly pay all of Landlord’s costs and expenses related to any such work plus an  administration fee of fifteen percent (15%) of such costs and expenses for Landlord’s supervision  and coordination of such work. Tenant shall pay such costs and expenses to Landlord within  fifteen (15) days after the receipt of reasonably detailed invoice therefor from Landlord, together  with reasonable evidence of the amounts incurred and paid by Landlord for such purposes. Such  costs and fee shall constitute a part of the Rent due under this Lease and shall be in addition to all  other Rent, and Landlord shall have the same rights and remedies with respect to any failure to  pay them as herein required which Landlord would have with respect to any other failure to pay  Rent when due.    (f) Notwithstanding anything to the contrary contained herein, Named  23    Tenant’s rights under this Section 6.7 are personal to Named Tenant and shall not be assigned or  assignable, in whole or in part, to any third party. Any assignment or other transfer of such rights  by Named Tenant shall be void and of no force or effect. Without limiting the generality of the  foregoing, no sublessee of the Premises shall be permitted to exercise the rights granted to Named  Tenant under this Section 6.7.    ARTICLE 7  USE OF PREMISES; LANDLORD’S ACCESS RIGHTS    7.1 USE OF PREMISES    (a) Tenant shall occupy and use the Premises only for the uses specified in  Section 1.1 to conduct Tenant’s business. Tenant shall not occupy or use the Premises (or permit  the use or occupancy of the Premises) for any purpose or in any manner which: (1) is unlawful or  in violation of any Law or Hazardous Materials Law; (2) may be unreasonably dangerous to  persons or property; (3) is contrary to or prohibited by the terms and conditions of this Lease or  the rules of the Building set forth in Article 18; or (4) creates or continues a nuisance.  Notwithstanding the foregoing, in no event will Tenant be prohibited from using the Premises for  research and development laboratory use, manufacturing use, and related office use.    (b) Landlord shall provide Tenant with access to the Premises 24 hours per day,  7 days per week and 365/366 days per year, subject to closure due to Force Majeure events when  required by governmental authorities with jurisdiction over the Premises, or in the event of an  imminent threat to safety or the Building.    (c) Landlord and Tenant acknowledge that the Americans With Disabilities Act  of 1990 (42 U.S.C. §12101 et seq.) and regulations and guidelines promulgated thereunder, as all  of the same may be amended and supplemented from time to time (collectively referred to herein  as the “ADA”) establish requirements for business operations, accessibility and barrier removal,  and that such requirements may or may not apply to the Premises, the Building and the Project  depending on, among other things: (1) whether Tenant’s business is deemed a “public  accommodation” or “commercial facility”, (2) whether such requirements are “readily  achievable”, and (3) whether a given alteration affects a “primary function area” or triggers “path  of travel” requirements. The parties hereby agree that: (a) Landlord shall be responsible for ADA  Title III compliance in the Common Areas, except as provided below, (b) Tenant shall be  responsible for ADA Title III compliance in the Premises, including any Tenant Additions or other  work to be performed in the Premises by Tenant under or in connection with this Lease,  (c) Landlord may perform, or require that Tenant perform, and Tenant shall be responsible for the  cost of, ADA Title III “path of travel” requirements triggered by Tenant Additions in the Premises,  and (d) Landlord may perform, or require Tenant to perform, and Tenant shall be responsible for  the cost of, ADA Title III compliance in the Common Areas necessitated by the Building being  deemed to be a “public accommodation” instead of a “commercial facility” as a result of Tenant’s  use of the Premises for other than research and development laboratory use, and related office use.  Tenant shall be solely responsible for requirements under Title I of the ADA relating to Tenant’s  employees.    (d) Landlord and Tenant agree to cooperate and use commercially reasonable  





 






24    efforts to participate in traffic management programs generally applicable to businesses located in  or about the area and Tenant shall encourage and support van, shuttle service, and carpooling by,  and staggered and flexible working hours for, its office workers and service employees to the  extent reasonably permitted by the requirements of Tenant’s business. Neither this Section or any  other provision of this Lease is intended to or shall create any rights or benefits in any other person,  firm, company, governmental entity or the public.    (e) Tenant agrees to reasonably cooperate with Landlord and to comply with  any and all guidelines or controls concerning energy management and usage disclosure imposed  upon Landlord by federal or state governmental organizations or by any energy conservation  association to which Landlord is a party or which is applicable to the Building, including, without  limitation, the requirements of California’s Nonresidential Building Energy Use Disclosure  Program, as more particularly specified in California Public Resources Code Sections 25402.10 et  seq. and regulations adopted pursuant thereto. Further, Tenant hereby authorizes (and agrees that  Landlord shall have the authority to authorize) any electric or gas utility company providing  service to the Building to disclose from time to time so much of the data collected and maintained  by it regarding Tenant’s energy consumption data as may be necessary to cause the Building to  participate in the ENERGY STAR® Portfolio Manager system and similar programs; and Tenant  further authorizes Landlord to disclose information concerning energy use by Tenant, either  individually or in combination with the energy use of other tenants, as applicable as Landlord  determines to be reasonably necessary to comply with applicable Laws pertaining to the Building  or Landlord’s ownership thereof.    (f) Hazardous Materials.    (1) Definitions. The following terms shall have the following meanings  for purposes of this Lease:    (i) “Biohazardous Materials” means any and all substances and  materials defined or referred to as “medical waste,” “biological waste,” “biohazardous waste,”  “biohazardous material” or any other term of similar import under any Hazardous Materials Laws,  including (but not limited to) California Health & Safety Code Sections 25105 et seq., and any  regulations promulgated thereunder, as amended from time to time.    (ii) “Chemical Control Area Plan” means that certain plan for  the use and storage of Hazardous Materials in the Building created by Landlord and approved by  the City, if any, which plan shall not materially increase Tenant’s expenses nor materially impact  Tenant’s use of the Premises, and a copy of which plan shall be provided to Tenant no later than  thirty (30) days prior to such plan’s implementation.    (iii) “Environmental Condition” means the Release of any  Hazardous Materials in, over, on, under, through, from or about the Project (including, but not  limited to, the Premises).    (iv) “Environmental Damages” means all claims, suits,  judgments, damages, losses, penalties, fines, liabilities, encumbrances, liens, costs and expenses  of whatever kind or nature, contingent or otherwise, matured or unmatured, foreseeable or  25    unforeseeable, arising out of or in connection with any Environmental Condition, including, to the  extent arising out of an Environmental Condition, without limitation: (A) damages for personal  injury, or for injury or damage to the Project or natural resources occurring on or off the Project,  including without limitation (1) any claims brought by or on behalf of any person, (2) any loss of,  lost use of, damage to or diminution in value of any Project or natural resource, and (3) costs of  any investigation, remediation, removal, abatement, containment, closure, restoration or  monitoring work required by any federal, state or local governmental agency or political  subdivision, or otherwise reasonably necessary to protect the public health or safety, whether on  or off the Project; (B) reasonable fees incurred for the services of attorneys, consultants,  contractors, experts and laboratories in connection with the preparation of any feasibility studies,  investigations or reports or the performance of any work described above; (C) any liability to any  third person or governmental agency to indemnify such person or agency for costs expended or  liabilities incurred in connection with any items described in clause (A) or (B) above; (D) any fair  market or fair market rental value of the Project; and (E) the amount of any penalties, damages or  costs a party is required to pay or incur in excess of that which the party otherwise would  reasonably have expected to pay or incur absent the existence of the applicable Environmental  Condition.    (v) “Handling” or “Handles”, when used with reference to any  substance or material, includes (but is not limited to) any receipt, storage, use, generation, Release,  transportation, treatment or disposal of such substance or material.    (vi) “Hazardous Materials” means any and all chemical,  explosive, biohazardous, radioactive or otherwise toxic or hazardous materials or hazardous  wastes, including without limitation any asbestos-containing materials, PCB’s, CFCs, petroleum  and derivatives thereof, Radioactive Materials, Biohazardous Materials, Hazardous Wastes, any  other substances defined or listed as or meeting the characteristics of a hazardous substance,  hazardous material, Hazardous Waste, toxic substance, toxic waste, biohazardous material,  biohazardous waste, biological waste, medical waste, radiation, radioactive substance, radioactive  waste, or other similar term, as applicable, under any law, statute, ordinance, code, rule, regulation,  directive, order, condition or other written requirement enacted, promulgated or issued by any  public officer or governmental or quasi-governmental authority, whether now in force or hereafter  in force at any time or from time to time to protect the environment or human health, and/or any  mixed materials, substances or wastes containing more than one of the foregoing categories of  materials, substances or wastes.    (vii) “Hazardous Materials Laws” means, collectively, (A) the  Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C.  Sections 9601-9657, (B) the Hazardous Materials Transportation Act of 1975, 49 U.S.C.  Sections 1801-1812, (C) the Resource Conservation and Recovery Act of 1976, 42 U.S.C.  Sections 6901-6987 (together with any amendments thereto, any regulations thereunder and any  amendments to any such regulations as in effect from time to time, “RCRA”), (D) the California  Carpenter-Presley-Tanner Hazardous Substance Account Act, California Health & Safety Code  Sections 25300 et seq., (E) the Hazardous Materials Release Response Plans and Inventory Act,  California Health & Safety Code Sections 25500 et seq., (F) the California Hazardous Waste  Control Law, California Health & Safety Code Sections 25100 et seq. (together with any  amendments thereto, any regulations thereunder and any amendments to any such regulations as  26    in effect from time to time, the “CHWCL”), (G) California Health & Safety Code Sections 25015-  25027.8, (H) any amendments to or successor statutes to any of the foregoing, as adopted or  enacted from time to time, (I) any regulations or amendments thereto promulgated pursuant to any  of the foregoing from time to time, (J) any Laws relating to Biohazardous Materials, including (but  not limited to) any regulations or requirements with respect to the shipping, use, decontamination  and disposal thereof, and (K) any other Law now or at any time hereafter in effect regulating,  relating to or imposing liability or standards of conduct concerning any Hazardous Materials,  including (but not limited to) any requirements or conditions imposed pursuant to the terms of any  orders, permits, licenses, registrations or operating plans issued or approved by any governmental  or quasi-governmental authority from time to time either on a Project-wide basis or in connection  with any Handling of Hazardous Materials in, on or about the Premises or the Project.    (viii) “Hazardous Wastes” means (A) any waste listed as or  meeting the identified characteristics of a “hazardous waste” or terms of similar import under  RCRA, (B) any waste meeting the identified characteristics of a “hazardous waste”, “extremely  hazardous waste” or “restricted hazardous waste” under the CHWCL, and/or (C) any and all other  substances and materials defined or referred to as a “hazardous waste” or other term of similar  import under any Hazardous Materials Laws.    (ix) “Landlord’s Contamination” means any Hazardous  Materials which exist in, on, under or in the vicinity of the Project as of the date of this Lease or  which migrate onto or beneath the Project after termination of this Lease. Tenant shall not be  required to pay any costs with respect to the remediation or abatement of Landlord’s  Contamination.    (x) “Radioactive Materials” means (A) any and all substances  and materials the Handling of which requires an approval, consent, permit or license from the  Nuclear Regulatory Commission, (B) any and all substances and materials the Handling of which  requires a Radioactive Material License or other similar approval, consent, permit or license from  the State of California, and (C) any and all other substances and materials defined or referred to as  “radiation,” a “radioactive material” or “radioactive waste,” or any other term of similar import  under any Hazardous Materials Laws, including (but not limited to) Title 26, California Code of  Regulations Section 17-30100, and any statutes, regulations or other laws administered, enforced  or promulgated by the Nuclear Regulatory Commission.    (xi) “Release” means any accidental or intentional spilling,  leaking, pumping, pouring, emitting, discharging, injecting, escaping, leaching, migrating,  dumping or disposing into the air, land, surface water, groundwater or the environment (including  without limitation the abandonment or discarding of receptacles containing any Hazardous  Materials).    (xii) “Tenant’s Contamination” means any Hazardous Material  Release on or about the Property by Tenant and/or any agents, employees, contractors, vendors,  suppliers, licensees, subtenants, and invitees of Tenant (individually, a “Tenant Party” and  collectively, “Tenant Parties”).    (2) Handling of Hazardous Materials. The parties acknowledge that  27    Tenant wishes and intends to use all or a portion of the Premises as a bio-pharmaceutical research  and development facility in conformance with the conduct by Tenant of its business in accordance  with the use specified in Section 1.1, that such use, as conducted or proposed to be conducted by  Tenant, would customarily include the Handling of Hazardous Materials, and that Tenant shall  therefore be permitted to engage in the Handling in the Premises of necessary and reasonable  quantities of Hazardous Materials customarily used in or incidental to the operation of a bio-  pharmaceutical research, manufacturing, development preparation and/or dispensing facility in  conformance with business operations of Tenant in the manner conducted or proposed to be  conducted by Tenant hereunder (“Permitted Hazardous Materials”), provided that the Handling of  such Permitted Hazardous Materials by all Tenant Parties shall at all times comply with and be  subject to all provisions of this Lease and all Laws, including all Hazardous Materials Laws, and  with Landlord’s Chemical Control Area Plan for the Building. Without limiting the generality of  the foregoing, Tenant shall comply at all times with all Hazardous Materials Laws applicable to  any aspect of Tenant’s use of the Premises and the Project and of Tenant’s operations and activities  in, on and about the Premises and the Project, and shall ensure at all times that Tenant’s Handling  of Hazardous Materials in, on and about the Premises does not violate (x) the terms of any  governmental licenses or permits applicable to the Building (including, but not limited to, the  Building Discharge Permit as defined below) or Premises or to Tenant’s Handling of any  Hazardous Materials therein, or (y) any applicable requirements or restrictions relating to the  occupancy classification of the Building and the Premises.    (3) Disposition or Emission of Hazardous Materials. Tenant shall not  Release or dispose of any Hazardous Materials, except to the extent authorized by permit, at the  Premises or on the Project, but instead shall arrange for off-site disposal, under Tenant’s own name  and EPA waste generator number (or other similar identifying information issued or prescribed by  any other governmental authority with respect to Radioactive Materials, Biohazardous Materials  or any other Hazardous Materials) and at Tenant’s sole expense, in compliance with all applicable  Hazardous Materials Laws, with the Laboratory Rules and Regulations (defined below) and with  all other applicable Laws and regulatory requirements.    (4) Information Regarding Hazardous Materials. Tenant shall maintain  and make available to Landlord the following information and/or documentation within thirty (30)  days after written demand:    (i) An inventory of all Hazardous Materials that Tenant  receives, uses, handles, generates, transports, stores, treats or disposes of from time to time, or at  the time of preparation of such inventory proposes or expects to use, handle, generate, transport,  store, treat or dispose of from time to time, in connection with its operations at the Premises. Such  inventory shall include, but shall separately identify, any Hazardous Wastes, Biohazardous  Materials and Radioactive Materials covered by the foregoing description. If such inventory  includes any Biohazardous Materials, Tenant shall also disclose in writing to Landlord the  Biosafety Level designation associated with the use of such materials.    (ii) Copies of all then existing permits, licenses, registrations  and other similar documents issued by any governmental or quasi-governmental authority that  authorize any Handling of Hazardous Materials in, on or about the Premises or the Project by any  Tenant Party.  





 






28    (iii) All Material Safety Data Sheets (“MSDSs”), if any, required  to be completed with respect to operations of Tenant at the Premises from time to time in  accordance with Title 26, California Code of Regulations Section 8-5194 or 42 U.S.C.  Section 11021, or any amendments thereto, and any Hazardous Materials Inventory Sheets that  detail the MSDSs.    (iv) All hazardous waste manifests (as defined in Title 26,  California Code of Regulations Section 22-66481), if any, that Tenant is required to complete from  time to time in connection with its operations at the Premises.    (v) A copy of any “Hazardous Materials Business Plan”  required from time to time with respect to Tenant’s operations at the Premises pursuant to  California Health & Safety Code Sections 25500 et seq., and any regulations promulgated  thereunder, as amended from time to time, or in connection with Tenant’s application for a  business license from the City. If applicable law does not require Tenant to prepare a Hazardous  Materials Business Plan, Tenant shall furnish to Landlord at the times and in the manner set forth  above the information that would customarily be contained in a Hazardous Materials Business  Plan, including (but not limited to) information regarding Tenant’s Hazardous Materials  inventories. The parties acknowledge that a Hazardous Materials Business Plan would ordinarily  include an emergency response plan, and that regardless of whether applicable Law requires  Tenant or other tenants in the Building to prepare Hazardous Materials Business Plans, Landlord  in its discretion may elect to prepare a coordinated emergency response plan for the entire Building  and/or for multiple Buildings on the Project (if and to the extent applicable).    (vi) Any “Contingency Plans and Emergency Procedures”  required of Tenant from time to time, in connection with its operations at the Premises, pursuant  to applicable Law, Title 26, California Code of Regulations Sections 22-67140 et seq., and any  amendments thereto, and any “Training Programs and Records” required under Title 26, California  Code of Regulations Section 22-66493, and any amendments thereto from time to time. Landlord  in its discretion may elect to prepare a Contingency Plan and Emergency Procedures for the entire  Building and/or for multiple buildings on the Project, in which event, if applicable law does not  require Tenant to prepare a Contingency Plan and Emergency Procedures for its operations at the  Premises, Tenant shall furnish to Landlord at the times and in the manner set forth above the  information that would customarily be contained in a Contingency Plan and Emergency  Procedures.    (vii) Copies of any biennial or other periodic reports furnished or  required to be furnished to the California Department of Health Services from time to time, under  applicable law, pursuant to Title 26, California Code of Regulations Section 22-66493 and any  amendments thereto, relating to any Hazardous Materials.    (viii) Copies of any industrial wastewater discharge permits issued  to or held by Tenant from time to time in connection with its operations at the Premises (the parties  presently anticipate, however, that because of the existence of the Building Discharge Permit in  Landlord’s name as described above. Tenant will not be required to maintain a separate, individual  discharge permit).  29    (ix) Copies of any other lists, reports, studies, or inventories of  Hazardous Materials or of any subcategories of materials included in Hazardous Materials that  Tenant is otherwise required to prepare and file from time to time with any governmental or quasi-  governmental authority in connection with Tenant’s operations at the Premises, including (but not  limited to) reports filed by Tenant with the federal Food & Drug Administration or any other  regulatory authorities primarily in connection with the presence (or lack thereof) of any “select  agents” or other Biohazardous Materials on the Premises, together with proof of filing thereof.    (x) Any other information reasonably requested by Landlord in  writing from time to time in connection with (A) Landlord’s monitoring (in Landlord’s reasonable  discretion) and enforcement of Tenant’s obligations under this Section and of compliance with  applicable Laws in connection with any Handling or Release of Hazardous Materials in the  Premises or Building or on or about the Project by any Tenant Party, (B) any inspections or  enforcement actions by any governmental authority pursuant to any Hazardous Materials Laws or  any other Laws relating to the presence or Handling of Hazardous Materials in the Premises or  Building or on or about the Project by any Tenant Party, and/or (C) Landlord’s preparation (in  Landlord’s reasonable discretion) and enforcement of any reasonable rules and procedures relating  to the presence or Handling by Tenant or any Tenant Party of Hazardous Materials in the Premises  or Building or on or about the Project, including (but not limited to) any contingency plans or  emergency response plans as described above. Except as otherwise required by Law, Landlord  shall keep confidential any information supplied to Landlord by Tenant pursuant to the foregoing,  provided, however, that the foregoing shall not apply to any publicly available information filed  with any governmental authority or available to the public at large. Landlord may provide such  information to its lenders, consultants or investors provided such entities agree to keep such  information confidential.    (5) Indemnification; Notice of Release. Tenant shall be responsible for  and shall indemnify, defend and hold Landlord harmless from and against all Environmental  Damages to the extent arising out of or otherwise relating to, (i) any Handling of Hazardous  Materials by any Tenant Party in, on or about the Premises or the Project in violation of this  Section, (ii) any breach of Tenant’s obligations under this Section or of any Hazardous Materials  Laws by any Tenant Party, or (iii) the existence of any Tenant’s Contamination in, on or about the  Premises or the Project to the extent caused by any Tenant Party, including without limitation any  removal, cleanup or restoration work and materials necessary to return the Project or any  improvements of whatever nature located on the Project to the condition existing prior to the  Handling of Hazardous Materials in, on or about the Premises or the Project by any Tenant Party.  In the event of any Tenant’s Contamination in, on or about the Premises or any other portion of  the Project or any adjacent lands, Tenant shall promptly remedy the problem in accordance with  all applicable Hazardous Materials Laws, shall give Landlord oral notice of any such non-standard  or non-customary Release promptly after Tenant becomes aware of such Release, followed by  written notice to Landlord within ten (10) business days after Tenant becomes aware of such  Release, and shall furnish Landlord with concurrent copies of any and all notices, reports and other  written materials filed by any Tenant Party with any governmental authority in connection with  such Release. Tenant shall have no obligation to indemnify, defend and hold Landlord harmless  from and against or remedy any Hazardous Materials contamination which was not caused or  released by a Tenant Party.  30    (6) Governmental Notices. Tenant shall promptly provide Landlord  with copies of all notices received by Tenant relating to any actual or alleged presence or Handling  by any Tenant Party of Hazardous Materials in, on or about the Premises or any other portion of  the Project, including, without limitation, any notice of violation, notice of responsibility or  demand for action from any federal, state or local governmental authority or official in connection  with any actual or alleged presence or Handling by any Tenant Party of Hazardous Materials in or  about the Premises or any other portion of the Project.    (7) Inspection by Landlord. In addition to, and not in limitation of,  Landlord’s rights under this Lease, upon reasonable prior request by Landlord, Tenant shall grant  Landlord and its consultants, as well as any governmental authorities having jurisdiction over the  Premises or over any aspect of Tenant’s use thereof, reasonable access to the Premises at  reasonable times to inspect Tenant’s Handling of Hazardous Materials in, on and about the  Premises, and Landlord shall not thereby incur any liability to Tenant or be deemed guilty of any  disturbance of Tenant’s use or possession of the Premises by reason of such entry; provided,  however, that Landlord shall use reasonable efforts to minimize interference with Tenant’s use of  the Premises caused by such entry, and Landlord shall comply with any security and confidentiality  requirements reasonably imposed by Tenant during any entry onto the Premises and shall minimize  to the extent reasonably possible any interference with Tenant’s use of the Premises caused by  such entry. Notwithstanding Landlord’s rights of inspection and review of documents, materials  and physical conditions under this Section with respect to Tenant’s Handling of Hazardous  Materials, Landlord shall have no duty or obligation to perform any such inspection or review or  to monitor in any way any documents, materials, physical conditions or compliance with Laws in  connection with Tenant’s Handling of Hazardous Materials, and no third Party shall be entitled to  rely on Landlord to conduct any such inspection, review or monitoring by reason of the provisions  of this Section.    (8) Monitoring by Landlord. Subject to subsection (7) immediately  above, Landlord reserves the right to monitor, in Landlord’s reasonable discretion and at  Landlord’s cost, the reasonable cost of which shall be recoverable as an Operating Expense  (except in the case of a breach of any of Tenant’s obligations under this Section, in which event  such reasonable monitoring costs may be charged back entirely to Tenant and shall be reimbursed  by Tenant to Landlord within fifteen (15) business days after written demand by Landlord from  time to time, accompanied by supporting documentation reasonably evidencing the costs for which  such reimbursement is claimed), at such times and from time to time as Landlord in its reasonable  discretion may determine, through consultants engaged by Landlord or otherwise as Landlord in  its reasonable discretion may determine: (x) all aqueous and atmospheric discharges and emissions  from the Premises during the Term by a Tenant Party, (y) Tenant’s compliance and the collective  compliance of all tenants in the Building with requirements and restrictions relating to the  occupancy classification of the Building (including, but not limited to, Hazardous Materials  inventory levels of Tenant and all other tenants in the Building), and (z) Tenant’s compliance with  all other requirements of this Section.    (9) Discovery of Discharge. If Landlord, Tenant or any governmental  or quasi-governmental authority discovers any Release from the Premises during the Term by a  Tenant Party in violation of this Section that, in Landlord’s reasonable determination, jeopardizes  the ability of the Building or the Project to meet applicable Laws or otherwise materially and  31    adversely affects the Building’s or the Project’s compliance with applicable discharge or emission  standards, or if Landlord discovers any other material breach of Tenant’s obligations under this  Section, then upon receipt of written notice from Landlord or at such earlier time as Tenant obtains  actual knowledge of the applicable discharge, emission or breach, Tenant at its sole expense shall  within a reasonable time (x) in the case of a Release in violation of this Lease, cease the applicable  discharge or emission and remediate any continuing effects of the discharge or emission until such  time, if any, as Tenant demonstrates to Landlord’s reasonable satisfaction that the applicable  discharge or emission is in compliance with all applicable Laws and any other applicable  regulatory commitments and obligations to the satisfaction of the appropriate governmental agency  with jurisdiction over the Release, and (y) in the case of any other breach of Tenant’s obligations  under this Section, take such corrective measures as Landlord may reasonably request in writing  in order to cure or eliminate the breach as promptly as practicable and to remediate any continuing  effects of the breach.    (10) Post-Occupancy Study. No later than fifteen (15) days following the  Termination Date, Tenant, at its sole cost and expense, shall obtain and deliver to Landlord a  decommissioning study that is performed (A) in accordance with then-current market standards in  the San Francisco Bay Area for like-kind laboratory space, and (B) by an expert reasonably  satisfactory to Landlord, evaluating the presence or absence of any Tenant’s Contamination in, on  and about the Premises and the Project. Landlord acknowledges that the following are acceptable  experts for the performance of such study as of the date of this Lease: Burke-Herring, Nanoclean  or Ingenium. Such study shall be based on a reasonable and prudent level of tests and  investigations of the Premises and surrounding portions of the Project (if appropriate) which tests  shall be conducted no earlier than fifteen (15) days prior to the Termination Date. Liability for  any remedial actions required or recommended on the basis of such study shall be allocated in  accordance with the applicable provisions of this Lease. To the extent any such remedial actions  are the responsibility of Tenant, Tenant at its sole expense shall promptly commence and diligently  pursue to completion the required remedial actions.    (11) Emergency Response Plans. If Landlord in its reasonable discretion  adopts any emergency response plan and/or any Contingency Plan and Emergency Procedures for  the Building (or for multiple buildings on the Project if and to the extent applicable) as  contemplated above, Landlord shall provide copies of any such plans and procedures to Tenant  and, so long as such plans and procedures are reasonable and do not impose material additional  costs or expenses on Tenant, Tenant shall comply with all of the requirements of such plans and  procedures to the extent applicable to Tenant and/or the Premises. If Landlord elects to adopt or  materially modify any such plans or procedures that apply to the Building during the Term,  Landlord shall consult with Tenant and Tenant shall reasonably cooperate, at no material cost to  Tenant, in the preparation of such plans, procedures or modifications in efforts to accurately reflect  and maintain consistency with Tenant’s operations in the Premises, but Landlord alone shall  determine, in its good faith reasonable discretion, the appropriate scope of such consultation and  nothing in this Section shall be construed to give Tenant any right of approval or disapproval over  Landlord’s adoption or modification of any such plans or procedures.    (12) Radioactive Materials. Without limiting any other applicable  provisions of this Section, if Tenant Handles or proposes to Handle any Radioactive Materials in  or about the Premises, Tenant shall provide Landlord with copies of Tenant’s licenses or permits  





 






32    for such Radioactive Materials and with copies of all radiation protection programs and procedures  required under applicable Laws or otherwise adopted by Tenant from time to time in connection  with Tenant’s Handling of such Radioactive Materials. In addition, Tenant shall comply with any  and all rules and procedures issued by Landlord in its good faith discretion from time to time with  respect to the Handling of Radioactive Materials on the Project (such as, by way of example but  not limitation, rules implementing a label defacement program for decayed waste destined for  common trash and/or rules relating to transportation and storage of Radioactive Materials on the  Project), provided that such rules and procedures shall be reasonable and not in conflict with any  applicable Laws.    (13) Deemed   Holdover   Occupancy. Notwithstanding any other  provisions of this Lease, Landlord and Tenant expressly agrees as follows:    (i) If Tenant Handles any Radioactive Materials in or about  the Premises or the Project during the Term, then for so long as any license or permit relating to  such Radioactive Materials remains open or valid following the Termination Date, and another  entity handling Radioactive Materials which is a prospective tenant of Landlord is legally  prohibited from occupying a portion of the Premises for a use similar to Tenant’s use, then  Tenant shall be deemed to be occupying that portion of the Premises on a holdover basis without  Landlord’s consent (notwithstanding such otherwise applicable termination or expiration of the  Term) and shall be required to continue to pay Rent and other charges in accordance with Article  13 solely for that portion of the Premises effected by the radioactive materials license, until such  time as all such Radioactive Materials licenses and permits have been fully closed out in  accordance with the requirements of this Lease and with all applicable Hazardous Materials Laws  and other Laws.    (ii) If Tenant Handles any Hazardous Materials in or about the  Premises or the Project during the Term and, on or before the Termination Date, has failed to  remove from the Premises or the Project all known Hazardous Materials Handled by a Tenant  Party or has failed to complete any remediation or removal of Tenant’s Contamination and/or to  have fully remediated in compliance with the requirements of this Lease and with all applicable  Hazardous Materials Laws and any other applicable Laws, the Tenant’s Handling and/or Release  (if applicable) of any such Hazardous Materials during the Term, then for so long as such  circumstances continue to exist, Tenant shall be deemed to be occupying the Premises on a  holdover basis without Landlord’s consent (notwithstanding such otherwise applicable termination  or expiration of the Term) and shall be required to continue to pay Rent and other charges in  accordance with Article 13 until such time as all such circumstances have been fully resolved in  accordance with the requirements of this Lease and with all applicable Hazardous Materials Laws  and other Laws.    (iii) As to the Named Tenant, the “deemed occupancy” set forth  in subsections (i) and (ii) above shall apply only if Tenant’s failure to comply with such subsections  continues for period of thirty (30) days following the Termination Date, with the holdover penalties  commencing as of the thirty-first (31st) day following the Termination Date, but only as to the  portion of the Premises that has not been decommissioned to Landlord’s reasonable satisfaction  (i.e., in accordance with decommissioning standards then in effect for similar laboratory space in  the San Francisco Bay Area).  33    (14) Survival of Obligations. Each party’s obligations under this Section  shall survive the Termination Date and shall survive any conveyance by Landlord of its interest in  the Premises. The provisions of this Section and any exercise by either party of any of the rights  and remedies contained herein shall be without prejudice to any other rights and remedies that  such party may have under this Lease or under applicable Law with respect to any Environmental  Conditions and/or any Hazardous Materials. Either party’s exercise or failure to exercise, at any  time or from time to time, any or all of the rights granted in this Section shall not in any way  impose any liability on such party or shift from the other party to such party any responsibility or  obligation imposed upon the other party under this Lease or under Hazardous Materials Laws,  Environmental Conditions and/or compliance with Laws.    (15) Laboratory Rules and Regulations. Tenant agrees for itself and for  its subtenants, employees, agents, and invitees to comply with the laboratory rules and regulations  (“Laboratory Rules and Regulations”) attached to this Lease as Exhibit C-1 and with all reasonable  modifications and additions thereto which Landlord may make from time to time that do not  impose material additional costs or expenses on Tenant.    (16) Landlord’s Obligations.    (i) If Landlord and/or its authorized agents Handle Hazardous  Materials in, on or about the Project, such Hazardous Materials shall be Handled in compliance  with applicable Hazardous Materials Laws.    (ii) If, as a result of Landlord and/or its authorized agents  Handling Hazardous Materials in, on or about the Project, such Hazardous Materials must be  remediated under Hazardous Materials Laws, Landlord shall promptly take all necessary actions  in order to address such remediation.    (iii) If Hazardous Materials on the Project, resulting from  Landlord’s acts, contaminate the Project, or if the Project was contaminated prior to Tenant’s  occupancy under the Existing Lease, Landlord shall indemnify and hold Tenant and its agents  harmless from any and all claims, damages, penalties, fines, costs, liabilities and losses, damages,  attorneys’ fees, consultants’ fees and experts’ fees resulting from such contamination.    7.2 LANDLORD ACCESS TO PREMISES; APPROVALS    (a) Tenant shall permit Landlord to erect, use and maintain pipes, ducts, wiring  and conduits in and through the Premises, so long as Tenant’s use, layout or design of the Premises  is not materially affected or altered. Landlord or Landlord’s agents shall have the right to enter  upon the Premises in the event of an emergency, or to inspect the Premises, to perform any services  required hereunder, to conduct safety and other testing in the Premises and to make such repairs,  alterations, improvements or additions to the Premises or the Building or other parts of the Property  as Landlord may deem necessary or desirable (including all alterations, improvements and  additions in connection with a change in service provider or providers). Any entry or work by  Landlord may be during Standard Operating Hours and Landlord shall use reasonable efforts to  ensure that any entry or work shall not materially interfere with Tenant’s occupancy of the  Premises.  34    (b) Advance notice shall not be required for entry in the event of an emergency  or urgent situation, as reasonably determined by Landlord, but any other entry or work by Landlord  shall be (i) at a time mutually agreed upon between Landlord and Tenant, (ii) during Standard  Operating Hours, (iii) upon at least two (2) business day’s prior written notice to Tenant, which  notice may be delivered orally or by e-mail to Tenant’s on-site manager at the Premises, and (iv)  conducted with a representative of Tenant present.    (c) Subject to the provisions of this Section 7.2, Landlord may enter the  Premises for the purpose of conducting such inspections, tests and studies as Landlord may deem  desirable or necessary to confirm Tenant’s compliance with all Laws and Hazardous Materials  Laws or for other purposes necessary in Landlord’s reasonable judgment to ensure the sound  condition of the Property and the systems serving the Property. If Landlord discovers any unsafe  or hazardous conditions during any such inspection, Landlord shall promptly notify Tenant of such  conditions. Landlord’s rights under this Section 7.2(c) are for Landlord’s own protection only, and  Landlord has not, and shall not be deemed to have assumed, any responsibility to Tenant or any  other party as a result of the exercise or non-exercise of such rights, for compliance with Laws or  Hazardous Materials Laws or for the accuracy or sufficiency of any item or the quality or suitability  of any item for its intended use.    (d) Landlord may do any of the foregoing, or undertake any of the inspection  or work described in the preceding paragraphs without such action constituting an actual or  constructive eviction of Tenant, in whole or in part, or giving rise to an abatement of Rent by  reason of loss or interruption of business of Tenant, or otherwise.    (e) The review, approval or consent of Landlord with respect to any item  required or permitted under this Lease is for Landlord’s own protection only, and Landlord has  not, and shall not be deemed to have assumed any responsibility to Tenant or any other party, as a  result of the exercise or non-exercise of such rights, for compliance with Laws or Hazardous  Materials Laws or for the accuracy or sufficiency of any item or the quality or suitability of any  item for its intended use.    (f) Landlord shall make commercially reasonable efforts to advise its  employees, agents, contractors, invited guests, and assigns that they will not be permitted to enter  the Premises without executing a commercially reasonable form of confidentiality agreement  provided by Tenant (the “Confidentiality Agreement”), which Confidentiality Agreement shall  prohibit the disclosure, dissemination or distribution of any information that any such parties may  learn of, discover, or see within the Premises (whether during an inspection or otherwise),  regardless of the nature, source, or storage medium of said confidential information. In the event  that Landlord’s employees enter the Premises, Landlord covenants, warrants, and agrees that its  employees shall execute the Confidentiality Agreement prior to entering the Premises, and at all  times shall maintain the confidentiality of any and all such information. Landlord shall make  commercially reasonable efforts to advise any and all persons entering the Premises at its request  or acquiescence, by its authority, or on its behalf that such persons will be required to execute the  Confidentiality Agreement, but Landlord shall not be liable for such persons failure to do so, nor  for Tenant’s failure to require such execution as a condition to entering the Premises. Landlord  agrees to immediately notify Tenant of any violation of this section by Landlord’s employees.  35    7.3 QUIET ENJOYMENT    Landlord covenants that so long as Tenant is not in Default under this Lease, Tenant shall  have the right to quiet enjoyment of the Premises without hindrance or interference from Landlord  or those claiming through Landlord, and subject to the covenants and conditions set forth in this  Lease and to the rights of any Mortgagee.    7.4 TRANSPORTATION DEMAND MANAGEMENT PROGRAM    (a) Landlord may elect or may be required to develop and implement a  Transportation Demand Management (“TDM”) program for the Building in order to reduce the  traffic-related impacts resulting from development of the Property. One element of any such TDM  program will require tenants of the Building to adopt programs and offer incentives to their  employees to reduce auto use and support the increase of alternative modes of transit. The  following are examples of such programs and incentives:    (1) Alternative commute subsidies and/or parking cash-out, where  employees are provided with a subsidy if they use transit or commute by alternative modes;    (2) Opportunities to purchase commuter checks which allow employees  to purchase transit tickets at discounted rates from their before-tax income; and    (3) Compressed work weeks and flex time where employees adjust their  work schedules to reduce peak hour trips to/from the Building.    (b) In order to support any such TDM program for the Building, Tenant agrees  that it shall make commercially reasonable efforts, taking into consideration the location of the  Premises, to adopt programs and offer incentives to its employees in order to reduce auto use and  support the increase of alternative modes of transit. The specifics of Tenant’s programs and  incentives shall be tailored to the needs of Tenant’s workforce and shall be determined by Tenant  in its good faith efforts to meet the goals of the TDM program. Upon request by Landlord from  time to time, but not more often than once per calendar year, Tenant shall provide to Landlord a  written report summarizing the programs and incentives being offered by Tenant to achieve the  goals of the TDM program.    ARTICLE 8  MAINTENANCE    8.1 LANDLORD’S MAINTENANCE    Subject to the provisions of Articles 4 and 14 and the definition of “Operating Expenses”,  Landlord shall, as an Operating Expense, maintain and make necessary repairs to the foundations,  roofs, roof membrane, exterior walls, and the structural elements of the Building, the electrical,  plumbing, heating, ventilating, air-conditioning, mechanical, communication, security and the fire  and life safety systems of the Building and those corridors, washrooms and lobbies which are  Common Areas of the Building, except that: (a) Landlord shall not be responsible for the  maintenance or repair of any floor or wall coverings in the Premises or any of such systems which  are located within the Premises and are supplemental or special to the Building’s standard systems;  





 






36    and (b) the cost of performing any of said maintenance or repairs whether to the Premises or to the  Building caused by the negligence of Tenant, its employees, agents, servants, licensees,  subtenants, contractors or invitees, shall be paid by Tenant, subject to the waivers set forth in  Section 16.4.    8.2 TENANT’S MAINTENANCE    Tenant shall, at its sole cost and expense, perform all maintenance, repair and replacement  of the Premises that are not Landlord’s express responsibility under this Lease, and keep the  Premises in good condition and repair, reasonable wear and tear excepted. Tenant’s maintenance,  repair and replacement obligations include, without limitation, maintenance, repairs and  replacements of: (a) floor covering; (b) interior partitions; (c) doors; (d) the interior side of  demising walls; (e) electronic, phone and data cabling, wiring and related equipment that is  installed by or for the exclusive benefit of Tenant (collectively, “Cable”); (f) supplemental air  conditioning units, kitchens, including hot water heaters, plumbing, and similar facilities  exclusively serving Tenant; and (g) Tenant Alterations. Landlord shall allocate one hundred  percent (100%) of the cost (plus any applicable administration fees) of Landlord’s maintenance,  repair or replacement of any Tenant Alterations, or repairs or replacements required to areas  outside of the Premises due to same, to Tenant as additional Rent under this Lease. Subject to the  waiver of subrogation provisions set forth in Section 16.4 below, Tenant shall reimburse Landlord  for the cost of repairing damage to the Building caused by the acts of Tenant, Tenant Parties and  their respective contractors and vendors. All maintenance, repairs and replacements upon notice  to Tenant, including, but not limited to, janitorial and cleaning services, pest control and waste  management and recycling performed by or on behalf of Landlord or Tenant must comply with  the Project’s Sustainability Practices. If Tenant fails to make any repairs or replacements of the  Premises for more than fifteen (15) days after notice from Landlord (although notice shall not be  required in an emergency), Landlord may make the repairs or replacements, and Tenant shall pay,  as additional Rent under this Lease, the reasonable cost of the repairs or replacements, together  with an administrative charge in an amount equal to ten percent (10%) of the cost of the repairs or  replacements. Tenant hereby waives all right to make repairs or replacements at the expense of  Landlord or in lieu thereof to vacate the Premises and its other similar rights as provided in  California Civil Code Sections 1932(1), 1941 and 1942 or any other Laws (whether now or  hereafter in effect). In addition to the foregoing, Tenant shall be responsible for all costs in  connection with maintaining, repairing and replacing all special tenant fixtures and improvements,  including garbage disposals, showers, plumbing, water filtration systems and appliances. If Tenant  requests that Landlord maintain, repair and/or replace any such fixtures and improvements, Tenant  shall reimburse Landlord for the cost of all such maintenance, repair and replacement work, plus  an administrative fee equal to ten percent (10%) of such cost, as additional Rent under this Lease,  and Landlord’s liability for such maintenance, repair and replacement work shall be subject to and  limited by the provisions of Article 17 below.    8.3 SUDDEN WATER INTRUSION.    Notwithstanding anything in this Lease to the contrary, in the event of sudden water  intrusion into the Premises, due to a leaking or bursting pipe or other water source, Landlord will  have the right, but not the obligation, to undertake immediate mitigation and repairs measures (the  “Water Damage Work”) of such nature as would normally be Tenant’s responsibility under Section  37    8.2 above and to notify Tenant promptly after the repairs have been undertaken (including notice  by telephone, to the extent reasonably practicable). Landlord shall determine, in its sole and  absolute discretion, the contractors to be used for the Water Damage Work, and Tenant will  reimburse Landlord for the reasonable cost of the Water Damage Work, as additional Rent under  this Lease, within 30 days following Tenant’s receipt of written demand from Landlord therefor.    ARTICLE 9  ALTERATIONS AND IMPROVEMENTS    9.1 TENANT ALTERATIONS    (a) The following provisions shall apply to the completion of any Tenant  Alterations:    (1) Tenant shall not, except as provided herein, without the prior written  consent of Landlord, which consent shall not be unreasonably withheld, conditioned or delayed,  make or cause to be made any Tenant Alterations in or to the Premises or any Property systems  serving the Premises. In the event Landlord does not respond to such request within ten (10) days  after written request by Tenant, and such failure continues following a second, 5-business-day  written notice to Landlord, Landlord shall be deemed to have approved of such Tenant Alteration.  Prior to making any Tenant Alterations, Tenant shall give Landlord ten (10) days prior written  notice (or such earlier notice as would be necessary pursuant to applicable Law) to permit Landlord  sufficient time to post appropriate notices of non-responsibility. Tenant shall furnish Landlord with  the names and addresses of all contractors and subcontractors and copies of all contracts. All  Tenant Alterations shall be completed only by contractors or mechanics approved by Landlord,  which approval shall not be unreasonably withheld, conditioned or delayed; provided, however,  that Landlord may, in its sole discretion, specify the engineers and contractors to perform all work  relating to the Building’s systems (including the mechanical, heating, plumbing, security,  ventilating, air-conditioning, electrical, communication and the fire and life safety systems in the  Building). In the event Landlord does not respond to such request for approval within ten (10) days  after written request by Tenant, and such failure continues following a second, 5-business-day  written notice to Landlord, Landlord shall be deemed to have approved of such contractor(s) or  mechanic(s). The contractors, mechanics and engineers who may be used are further limited to  those whose work will not cause or threaten to cause labor disharmony or interference with  Landlord or other tenants in the Building and their respective agents and contractors performing  work in or about the Building. Landlord may further condition its consent upon Tenant furnishing  to Landlord and Landlord approving prior to the commencement of any work or delivery of  materials to the Premises related to the Tenant Alterations such of the following as specified by  Landlord: architectural plans and specifications, opinions from Landlord’s engineers stating that  the Tenant Alterations will not in any way adversely affect the Building’s systems, necessary  permits and licenses, certificates of insurance, and such other documents in such form reasonably  requested by Landlord. Upon completion of Tenant Alterations requiring a building permit, Tenant  shall deliver to Landlord, if available, an as-built digitized set of plans and specifications for the  Tenant Alterations in both protected document (“.pdf”) and computer-aided design (“CAD”)  formats. Notwithstanding the foregoing, Tenant may make Tenant Alterations without Landlord’s  consent, but upon not less than ten (10) days prior written notice to Landlord, so long as they (i)  do not require a building permit, (ii) do not involve any of the structural elements of the Building,  38    (iii) do not adversely affect any of the Building’s systems, (iv) are not visible from the exterior of  the Building, and (v) cost less than $75,000.00 per Tenant Alteration (and not as a cumulative cap).    (2) Tenant shall pay the cost of all Tenant Alterations and the cost of  decorating the Premises and any work to the Property required due to such Tenant Alterations.  Upon completion of Tenant Alterations, Tenant shall furnish Landlord with full and final waivers  of lien and receipted bills covering all labor and materials expended and used in connection  therewith.    (3) Tenant agrees to complete all Tenant Alterations (i) in accordance  with all Laws, Hazardous Materials Laws, all requirements of applicable insurance companies and  in accordance with Landlord’s standard construction rules and regulations, (ii) in a good and  workmanlike manner with the use of good grades of materials, and (iii) in accordance with the  requirements of the Project’s Sustainability Practices. Tenant shall notify Landlord immediately if  Tenant receives any notice of violation of any Law in connection with completion of any Tenant  Alterations and, unless Tenant is contesting such violation, shall immediately take such steps as  are necessary to remedy such violation. In no event shall such supervision or right to supervise by  Landlord nor shall any approvals given by Landlord under this Lease constitute any warranty by  Landlord to Tenant of the adequacy of the design, workmanship or quality of such work or  materials for Tenant’s intended use or of compliance with the requirements of Section 9.1(a)(3)(i)  and (ii) above or impose any liability upon Landlord in connection with the performance of such  work.    (b) For any Tenant Alterations which Tenant requests Landlord to install, the  forgoing provisions of this Section 9.1 shall apply; provided, however, in addition to paying the  cost of the Tenant Alterations, Tenant also shall pay an administrative fee equal to ten percent  (10%) of such cost to Landlord, as additional Rent under this Lease, and Landlord’s liability for  such Tenant Alterations work shall be subject to and limited by the provisions of Article 17 below.  All Tenant Additions, whether installed by Landlord or Tenant, shall without compensation or  credit to Tenant, become part of the Premises and the property of Landlord at the time of their  installation and shall remain in the Premises, unless pursuant to Article 12, Tenant may remove  them or is required to remove them at Landlord’s request; provided, however, at the time Tenant  requests Landlord's consent to a proposed Tenant Alteration, or before the commencement of any  Tenant Alterations for which Landlord’s consent is not required, Tenant may ask Landlord in  writing whether Landlord will require that the Tenant Alterations be removed on expiration or  earlier termination of the Term.    9.2 LIENS    Tenant shall not permit any lien or claim for lien of any mechanic, laborer or supplier or  any other lien to be filed against the Building, the Land, the Premises, or any other part of the  Property arising out of work performed, or alleged to have been performed by, or at the direction  of, or on behalf of Tenant. If any such lien or claim for lien is filed, Tenant shall within thirty (30)  days after receiving notice of such lien or claim (a) have such lien or claim for lien released of  record or (b) deliver to Landlord a bond in form, content, amount, and issued by surety, reasonably  satisfactory to Landlord, indemnifying, protecting, defending and holding harmless the  Indemnitees against all costs and liabilities resulting from such lien or claim for lien and the  39    foreclosure or attempted foreclosure thereof. If Tenant fails to take any of the above actions,  Landlord, in addition to its rights and remedies under Article 11, without investigating the validity  of such lien or claim for lien, may pay or discharge the same and Tenant shall, as payment of  additional Rent hereunder, reimburse Landlord upon demand for the amount so paid by Landlord,  including Landlord’s expenses and attorneys’ fees.    9.3 EMERGENCY GENERATORS    (a) Emergency Generators. Landlord hereby agrees that, subject to the terms  and provisions of this Section 9.3, Tenant’s compliance with all applicable Laws and all recorded  covenants, conditions and restrictions affecting the Project, and subject to the approval of all  applicable governmental authorities, Tenant shall continue to have the right at Tenant’s sole cost  and expense, to operate two (2) back-up emergency generators (collectively, the “Emergency  Generators”) within the location specified on Exhibit A-1 hereto (the “Emergency Generator  Site”). The Emergency Generators shall be of such size and specifications, and shall include such  platforms, enclosures and other related materials and equipment, as shall be approved by Landlord,  which approval shall not be unreasonably withheld, conditioned or delayed. In addition, Tenant  shall have the right, subject to available capacity of the Building, to continue to maintain and/or to  install such connection equipment, such as conduits, cables, risers, feeders and materials  (collectively, the “Emergency Generator Connecting Equipment”; and collectively with the  Emergency Generators, the “Emergency Generator Equipment”) in the shafts, ducts, conduits,  chases, utility closets and other facilities of the Building as is reasonably necessary to connect the  Emergency Generators to Tenant’s other machinery and equipment in the Premises, subject,  however, to the following provisions of this Section 9.3. Notwithstanding the foregoing, the size,  location, and specifications of the Emergency Generator Equipment as of the date of this Lease  are hereby approved by Landlord.    (b) Alteration. The alteration, modification, and/or replacement of either of the  Emergency Generators and/or any other Emergency Generator Connecting Equipment shall  constitute an Alteration and shall be performed in accordance with and subject to the provisions  of Section 9.1 of this Lease, including, without limitation, Tenant’s obligation to obtain Landlord’s  prior consent to the size and other specifications of the Emergency Generators (and any related  Emergency Generator Connecting Equipment therefor), the methods and locations of all  connections to the Emergency Generator Equipment through the Building’s existing conduits,  cables, risers and feeders, and any such alterations, modifications and/or replacements of or to the  Emergency Generator Equipment, which consent shall not be unreasonably withheld, conditioned,  or delayed. The Emergency Generator Equipment shall be treated for all purposes of this Lease  as if the Emergency Generator Equipment were Tenant’s personal property. In no event shall  Tenant be permitted to void any warranties pertaining to the Building or Project in connection with  the use, operation, alteration, modification, and/or replacement of the Emergency Generator  Equipment. Tenant, at Tenant’s sole cost and expense, shall install such noise reduction and other  protective equipment on or about the Emergency Generator Equipment as Landlord may  reasonably determine.    (c) Tenant’s Covenants; Maintenance and Repair. Tenant shall use, operate,  modify and/or replace the Emergency Generator Equipment in compliance with all applicable  Laws and all recorded covenants, conditions and restrictions affecting the Project and in such a  





 






40    manner so as not to damage or interfere with the operation of the Project or the Building or any  portion thereof, including, without limitation, the systems and equipment of the Building and  Project, and any other generators or power sources or similar equipment located in, at or on the  Building or Project. Tenant’s use, maintenance or repair of the Emergency Generator Equipment  shall not cause unreasonably noise, vibration or odor. Tenant shall, at its sole cost and expense,  (i) be solely responsible for any damage caused as a result of the Emergency Generator Equipment,  and (ii) promptly pay any tax, license or permit fees charged pursuant to any requirements in  connection with the maintenance or use of the Emergency Generator Equipment and comply with  all precautions and safeguards recommended by all governmental authorities. Landlord shall enter  into a contract or contracts (and maintain in effect during the entire Term) for the maintenance,  repair and testing of the Emergency Generator Equipment, and Tenant shall reimburse Landlord  for all costs related thereto as additional Rent under this Lease.    (d) Landlord’s Obligations. Notwithstanding anything contained in this  Section 9.3 to the contrary, it shall be Landlord’s responsibility to maintain and test the Emergency  Generator Equipment. Except as otherwise specifically set forth in Section 9.3(c) above, Landlord  shall not be responsible for any damage that may be caused to the Emergency Generator  Equipment. Landlord makes no representation that the Emergency Generator Equipment will be  able to supply sufficient power to the Premises, and Tenant agrees that Landlord shall not be liable  to Tenant therefor.    (e) Hazardous Materials. Tenant shall not use any Hazardous Materials in  connection with the Emergency Generator Equipment, except that Tenant may use diesel fuel (or  an alternative fuel or power source that does not pose a greater environmental risk or has a higher  combustibility than diesel fuel) stored in a double walled steel tank (each, a “Fuel Tank”) contained  within each of the Emergency Generator (the exact location and size of such Fuel Tank shall be  reasonably approved by Landlord, provided however that the location of any Fuel Tanks as of the  date of this Lease are hereby approved by Landlord), as long as such fuel and such Fuel Tank are  kept, maintained and used in accordance with all applicable Hazardous Materials Laws and  reasonable safety standards for such use, and so long as such fuel is always stored within each such  Fuel Tank and is not used or stored in any area outside of the Fuel Tank. Landlord shall have the  right, but not the obligation, to provide such fuel, and if Landlord so elects, Tenant shall pay the  actual cost thereof incurred by Landlord as additional Rent under this Lease.    (f) Security. Physical security of the Emergency Generator Equipment is the  sole responsibility of Tenant, who shall bear the sole cost, expense and liability of any security  services, emergency alarm monitoring and other similar services in connection therewith.  Landlord shall not be liable to Tenant for any direct, indirect, consequential or other damages  arising out of or in connection with the physical security, or lack thereof, of the Emergency  Generator Site and/or Emergency Generator Equipment.    (g) Default. If Tenant fails to perform any of its obligations under this Section  9.3 and does not correct such noncompliance within ten (10) business days after receipt of notice  thereof from Landlord or such longer period as may be reasonably necessary to correct such  noncompliance, so long as Tenant commences to correct such noncompliance within such ten (10)-  business day period and thereafter proceeds with due diligence to correct such noncompliance,  then a Default shall be deemed to have occurred under Section 11.1 of this Lease (notwithstanding  41    any additional notice or cure periods set forth in Section 11.1 of this Lease), and in addition to all  other remedies Landlord may have under this Lease, Tenant shall, upon notice from Landlord,  immediately discontinue its use of that portion of the Emergency Generator Equipment to which  such noncompliance relates, and make such repairs and restoration as required under Section 9.3(i)  below with respect thereto.    (h) Removal at End of Term. Upon the expiration of the Term and Landlord’s  written request, Tenant shall, subject to the control of and direction from Landlord, and at Tenant’s  sole cost and expense, remove the Emergency Generator Equipment (including, without limitation  all electrical switch gear, underground conduit and feeders, architectural enclosure and/or  modifications to the Emergency Generator Site), repair any damage caused thereby, and restore  the Emergency Generator Site and other facilities of the Building and the Project to their condition  existing prior to the installation of the Emergency Generator Equipment. All such removal, repair  and restoration work shall be performed by certified and licensed contractors previously approved  in writing by Landlord (which approval shall not be unreasonably withheld, conditioned or  delayed), in accordance with a previously approved removal, repair and restoration plan, in a  workmanlike manner, in compliance with all applicable Laws, and without any interference,  damage or destruction to any other equipment, structures or operations at the Building or the  Project and/or any equipment of other licensees or tenants. If Tenant fails to timely perform such  removal, repair and/or restoration work, then Landlord may perform such work at Tenant’s cost,  which cost shall be due and payable to Landlord within ten (10) days after Tenant’s receipt of  invoice therefor from Landlord.    ARTICLE 10  ASSIGNMENT AND SUBLETTING    10.1 ASSIGNMENT AND SUBLETTING    (a) Without the prior written consent of Landlord, which consent of Landlord  shall not be unreasonably withheld, conditioned or delayed, Tenant may not sublease, assign,  mortgage, pledge, hypothecate or otherwise transfer or permit the transfer of this Lease or the  encumbering of Tenant’s interest therein in whole or in part, by operation of Law or otherwise or  permit the use or occupancy of the Premises, or any part thereof, by anyone other than Tenant.  Tenant agrees that the provisions governing sublease and assignment set forth in this Article 10  shall be deemed to be reasonable. If Tenant desires to enter into any sublease of the Premises or  assignment of this Lease, Tenant shall deliver written notice thereof to Landlord (“Tenant’s  Notice”), together with the identity of the proposed subtenant or assignee and the proposed  principal terms thereof and financial and other information reasonably sufficient for Landlord to  make an informed judgment with respect to such proposed subtenant or assignee at least thirty (30)  days prior to the commencement date of the term of the proposed sublease or assignment. If Tenant  proposes to sublease less than all of the Rentable Area of the Premises, the space proposed to be  sublet and the space retained by Tenant must each be a marketable unit as reasonably determined  by Landlord and otherwise in compliance with all Laws. Landlord shall notify Tenant in writing  of its approval or disapproval (with the reason for such disapproval) of the proposed sublease or  assignment or its decision to exercise its rights under Section 10.2 within ten (10) business days  after receipt of Tenant’s Notice (and all required information).  42    (b) With respect to Landlord’s consent to an assignment or sublease, Landlord  may take into consideration any factors that Landlord may reasonably deem relevant, and the  reasons for which Landlord’s denial shall be deemed to be reasonable shall include, without  limitation, the following:    (i) the business reputation or creditworthiness of any proposed  subtenant or assignee is not reasonably acceptable to Landlord; or    (ii) in Landlord’s reasonable judgment the proposed assignee or  sublessee would diminish the value or reputation of the Project or Landlord, or would materially  increase Landlord’s expenses associated with operating, maintaining and repairing the Project; or    (iii) any proposed assignee’s or sublessee’s use of the Premises  would violate Section 7.1 of this Lease or would violate the provisions of any other leases of  tenants in the Project; or    (iv) the portion of the Premises retained by Tenant after a  proposed sublease would not constitute a “marketable unit”, meaning that such space would be:  (A) deprived of ready access to the then-current corridor and elevator lobby without extension or  reconfiguration of the corridor or creation of a connecting corridor; or (B) rendered in violation of  any building code requirements; or    (v) the proposed sublessee or assignee is a current occupant of  the Project or is a bona fide prospective tenant of Landlord in the Project (as demonstrated by a  written proposal from such prospective tenant to Landlord dated within six (6) months prior to the  date of Tenant’s request), and Landlord has vacancy in the Project of a similar size and finish as  the space subject to such proposed sublease or assignment; or    (vi) Tenant is in Default under this Lease and such Default is not  cured on or before the effective date of the proposed sublease or assignment.    (c) Any sublease or assignment shall be expressly subject to the terms and  conditions of this Lease. Any assignee shall execute such documents as Landlord may reasonably  require to evidence such assignee’s assumption of the obligations and liabilities of Tenant under  this Lease. Tenant shall deliver to Landlord a copy of all agreements executed by Tenant and the  proposed subtenant and assignee with respect to the Premises. Landlord’s approval of a sublease,  assignment, hypothecation, transfer or third party use or occupancy shall not constitute a waiver  of Tenant’s obligation to obtain Landlord’s consent to further assignments or subleases,  hypothecations, transfers or third party use or occupancy.    (d) For purposes of this Article 10, an assignment shall be deemed to include a  change in the majority control of Tenant, resulting from any transfer, sale or assignment of shares  of stock of Tenant occurring by operation of Law or otherwise if Tenant is a corporation whose  shares of stock are not traded publicly. If Tenant is a partnership, any change in the partners of  Tenant shall be deemed to be an assignment.    (e) For purposes of this Lease, a “Permitted Transferee” shall mean any Person  which: (i) is an Affiliate; or (ii) is the corporation or other entity (the “Successor”) resulting from  43    a merger, consolidation or non-bankruptcy reorganization with Tenant; or (iii) is otherwise a  deemed assignee due to a change of control under Section 10.1(d) above; or (iv) purchases  substantially all the assets of Tenant as a going concern (the “Purchaser”). Notwithstanding  anything to the contrary in Sections 10.1(a),(b) and (f), 10.2 and 10.3, provided there is no uncured  Default under this Lease, Tenant shall have the right, without the prior written consent of Landlord,  to assign this Lease to a Permitted Transferee or to sublease the Premises or any part thereof to a  Permitted Transferee provided that: (1) Landlord receives fifteen (15) days’ prior written notice  of an assignment or sublease (including a proposed transaction described in subparts (i), (ii), (iii)  or (iv) of this Section 10.1(e)), unless Tenant is subject to a confidentiality obligation with respect  to the proposed transaction giving rise to the subject assignment or sublease, in which case Tenant  shall give Landlord such notice promptly after the effective date of such assignment or sublease;  (2) the Permitted Transferee’s net worth is not less than $150 million (however, if Named Tenant  or an Affiliate of Named Tenant is then the Tenant under this Lease, then Landlord shall require  only that the Permitted Transferee’s liquidity is not less than the then-applicable Base Rent rate  multiplied by forty-eight (48) months, and no net worth standard shall apply); (3) the Permitted  Transferee expressly assumes (except a Permitted Transferee which is a sublessee in the event of  a sublease under this Section 10.1(e)) in writing reasonably satisfactory to Landlord all of the  obligations of Tenant under this Lease and delivers such assumption to Landlord no later than ten  (10) days prior to the effective date of the assignment, unless Tenant is subject to a confidentiality  obligation with respect to the proposed transaction giving rise to the subject assignment, in which  case Tenant shall give Landlord such documentation promptly after the effective date of such  assignment; (5) Landlord receives no later than ten (10) days before the effective date a fully  executed copy of the applicable assignment or sublease agreement between Tenant and the  Permitted Transferee, unless Tenant is subject to a confidentiality obligation with respect to the  proposed transaction giving rise to the subject assignment or sublease, in which case Tenant shall  give Landlord such documentation promptly after the effective date of such assignment or  sublease; (6) promptly after Landlord’s written request, Tenant and the Permitted Transferee  provide such reasonable documents and information which Landlord reasonably requests for the  purpose of substantiating whether or not the assignment or sublease is to a Permitted Transferee;  and (7) such transfer is not being entered into for the purpose of avoiding the requirement for  Landlord’s prior consent or the provisions of Sections 10.2 or 10.3. All determinations of net  worth and liquidity for purposes of this Subsection shall mean “tangible” net worth (i.e., the excess  of total assets over total liabilities, as determined in accordance with generally accepted accounting  principles consistently applied).    (f) With respect to any sublease hereunder, Tenant hereby irrevocably assigns  to Landlord, effective upon any such sublease, all rent and other payments due from subtenant  under the sublease, provided however, that Tenant shall have a license to collect such rent and  other payments until the occurrence of a Default by Tenant under any of the provisions of this  Lease. At any time after such Default, at Landlord’s option, Landlord shall have the right to give  notice to the subtenant of such assignment. Landlord shall credit Tenant with any rent received  by Landlord under such assignment but the acceptance of any payment on account of rent from  the subtenant as the result of any such default shall in no manner whatsoever serve to release  Tenant from any liability under the terms, covenants, conditions, provisions or agreement under  this Lease. No such payment of rent or any other payment by the subtenant directly to Landlord  and/or acceptance of such payment(s) by Landlord, regardless of the circumstances or reasons  therefor, shall in any manner whatsoever be deemed an attornment by the subtenant to Landlord  





 






44    in the absence of a specific written agreement signed by Landlord to such an effect.    10.2 RECAPTURE    [Intentionally omitted.]    10.3 EXCESS RENT    Tenant shall pay Landlord on the first day of each month during the term of any sublease  (but not with respect to any assignment), as additional Rent under this Lease, fifty percent (50%)  of the amount by which the sum of all rent due from the subtenant for such month exceeds: (i) that  portion of the Monthly Base Rent and Rent Adjustments due under this Lease for said month which  is allocable to the space sublet; and (ii) the following costs and expenses for the subletting of such  space: (1) brokerage commissions and attorneys’ fees and expenses, (2) the actual costs paid in  making any improvements or substitutions in the Premises required by any sublease; and (3)  moving costs and other amounts actually paid with respect of such subtenant’s other leases or  occupancy arrangements.    10.4 TENANT LIABILITY    In the event of any sublease or assignment, whether or not with Landlord’s consent, Tenant  shall not be released or discharged from any liability, whether past, present or future, under this  Lease; provided that as to any sublease or assignment to which Landlord has provided its written  consent, Tenant shall be released and discharged from any liability under this Lease arising from  the exercise of any renewal or expansion option, to the extent such exercise is expressly permitted  by Landlord. Tenant’s liability shall remain primary, and in the event of default by any subtenant,  assignee or successor of Tenant in performance or observance of any of the covenants or conditions  of this Lease, Landlord may proceed directly against Tenant without the necessity of exhausting  remedies against said subtenant, assignee or successor. After any assignment, Landlord may  consent to subsequent assignments or subletting of this Lease, or amendments or modifications of  this Lease with assignees of Tenant, without notifying Tenant, or any successor of Tenant, and  without obtaining its or their consent thereto, and such action shall not relieve Tenant or any  successor of Tenant of liability under this Lease; provided, that Tenant shall not be bound by any  amendments or modifications that increase the obligations of Tenant under this Lease. In addition,  if Tenant has any options to extend the Term or to add other space to the Premises, such options  shall not be available to any subtenant or assignee (other than a Permitted Transferee), directly or  indirectly without Landlord’s express written consent, which may be withheld in Landlord’s sole  discretion.    10.5 ASSUMPTION AND ATTORNMENT    If Tenant shall assign this Lease as permitted herein, the assignee shall expressly assume  all of the obligations of Tenant hereunder in a written instrument satisfactory to Landlord and,  upon request from Landlord, furnished (with redactions deemed reasonably necessary to Tenant)  to Landlord not later than fifteen (15) days prior to the effective date of the assignment; provided,  however, Tenant’s obligation to provide such written instrument with respect to an assignment to  a Permitted Transferee shall be governed by Section 10.1(e). Each sublease by Tenant hereunder  shall be subject and subordinate to this Lease and to the matters to which this Lease is or shall be  45    subordinate, and each subtenant by entering into a sublease is deemed to have agreed that in the  event of termination, re-entry or dispossession by Landlord under this Lease, Landlord may, at its  option, either terminate the sublease or take over all of the right, title and interest of Tenant, as  sublandlord, under such sublease, and such subtenant shall, at Landlord’s option, attorn to  Landlord pursuant to the then executory provisions of such sublease, except that Landlord shall  not be: (1) liable for any previous act or omission of Tenant under such sublease (except for any  default that continues after the date of such sublease or assignment); (2) subject to any  counterclaim, offset or defense that such subtenant might have against Tenant; (3) bound by any  previous modification of such sublease or by any rent or additional rent or advance rent which  such subtenant might have paid for more than the current month to Tenant, and all such rent shall  remain due and owing, notwithstanding such advance payment; (4) bound by any security or  advance rental deposit made by such subtenant which is not delivered or paid over to Landlord  and with respect to which such subtenant shall look solely to Tenant for refund or reimbursement;  or (5) obligated to perform any work in the subleased space or to prepare it for occupancy, and in  connection with such attornment, the subtenant shall execute and deliver to Landlord any  instruments Landlord may reasonably request to evidence and confirm such attornment. Each  subtenant or licensee of Tenant shall be deemed, automatically upon and as a condition of its  occupying or using the Premises or any part thereof, to have agreed to be bound by the terms and  conditions set forth in this Section 10.5. The provisions of this Section 10.5 shall be self-operative,  and no further instrument shall be required to give effect to this provision.    10.6 PROCESSING EXPENSES    Tenant shall pay to Landlord, as Landlord’s cost of processing each proposed assignment  or subletting (whether or not the same is ultimately approved by Landlord or consummated by  Tenant), an amount equal to Landlord’s reasonable out-of-pocket attorneys’ and other professional  fees.    10.7 EFFECT OF IMPERMISSIBLE TRANSFER    Any assignment or sublease effected without Landlord’s consent in violation of this Article  10 shall, at Landlord’s option, be a noncurable Default under Section 11.1 without the necessity  of any notice and grace period.          11.1 DEFAULT  ARTICLE 11  DEFAULT AND REMEDIES    The occurrence or existence of any one or more of the following shall constitute a “Default”  by Tenant under this Lease:    (a) Tenant fails to pay any installment or other payment of Rent including Rent  Adjustment Deposits or Rent Adjustments within five (5) business days after written notice to  Tenant that the same is past due;    (b) [Reserved];  46    (c) Tenant violates the restrictions on assignments and subleases set forth in  Article 10 – Assignment and Subletting;    (d) Tenant fails to maintain any insurance policy required hereunder, and fails  to cure such default within ten (10) business days after written notice thereof to Tenant;    (e) Tenant fails to observe or perform any of the other covenants, conditions or  provisions of this Lease and fails to cure such default within thirty (30) days after written notice  thereof to Tenant, unless the failure to perform is a Default for which this Lease specifies there is  no cure or grace period; provided, however, that with respect to any failure that cannot reasonably  be cured by Tenant within thirty (30) days, Tenant shall not be deemed to be in Default during the  prosecution of such cure if Tenant promptly commences to cure within thirty (30) days from the  date of Landlord’s notice, diligently and continuously prosecutes the curing of such failure to  completion and actually cures such failure;    (f) the interest of Tenant in this Lease is levied upon under execution or other  legal process;    (g) a petition is filed by or against Tenant to declare Tenant bankrupt or seeking  a plan of reorganization or arrangement under any Chapter of the Bankruptcy Code, or any  amendment, replacement or substitution therefor, or to delay payment of, reduce or modify  Tenant’s debts, which in the case of an involuntary action is not discharged within sixty (60) days;    (h) Tenant is declared insolvent by Law or any assignment of Tenant’s property  is made for the benefit of creditors;    (i) a receiver is appointed for Tenant or Tenant’s property, which appointment  is not discharged within sixty (60) days; or    (j) upon the dissolution of Tenant.    11.2 LANDLORD’S REMEDIES    (a) A Default shall constitute a breach of this Lease for which Landlord shall  have the rights and remedies set forth in this Section 11.2 and all other rights and remedies set  forth in this Lease or now or hereafter allowed by Law, whether legal or equitable, and all rights  and remedies of Landlord shall be cumulative and none shall exclude any other right or remedy  now or hereafter allowed by applicable Law.    (b) With respect to a Default, at any time Landlord may terminate Tenant’s  right to possession by written notice to Tenant stating such election. Any written notice required  pursuant to Section 11.1 shall constitute notice of unlawful detainer pursuant to California Code  of Civil Procedure Section 1161 if, at Landlord’s sole discretion, it states Landlord’s election that  Tenant’s right to possession is terminated after expiration of any period required by Law or any  longer period required by Section 11.1. Upon the expiration of the period stated in Landlord’s  written notice of termination (and unless such notice provides an option to cure within such period  and Tenant cures the Default within such period), Tenant’s right to possession shall terminate and  this Lease shall terminate, and Tenant shall remain liable as hereinafter provided. Upon such  47    termination in writing of Tenant’s right to possession, Landlord shall have the right, subject to  applicable Law, to re-enter the Premises and dispossess Tenant and the legal representatives of  Tenant and all other occupants of the Premises by unlawful detainer or other summary  proceedings, or as otherwise permitted by Law, regain possession of the Premises and remove their  property (including their trade fixtures, personal property and Required Removables pursuant to  Article 12), but Landlord shall not be obligated to effect such removal, and such property may, at  Landlord’s option, be stored elsewhere, sold or otherwise dealt with as permitted by Law, at the  risk of, expense of and for the account of Tenant, and the proceeds of any sale shall be applied  pursuant to Law. Landlord shall in no event be responsible for the value, preservation or  safekeeping of any such property. Tenant hereby waives all claims for damages that may be caused  by Landlord’s removing or storing Tenant’s personal property pursuant to this Section or Section  12.1. Upon such written termination of Tenant’s right to possession and this Lease, Landlord shall  have the right to recover damages for Tenant’s Default as provided herein or by Law, including  the following damages provided by California Civil Code Section 1951.2:    (1) the worth at the time of award of the unpaid Rent which had been  earned at the time of termination;    (2) 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 Rent loss that Tenant proves could reasonably have been avoided;    (3) the worth at the time of award of the amount by which the unpaid  Rent for the balance of the term of this Lease after the time of award exceeds the amount of such  Rent loss that Tenant proves could be reasonably avoided;    (4) 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, including, without  limitation, Landlord’s unamortized costs of tenant improvements, leasing commissions and legal  fees incurred in connection with entering into this Lease; and    (5) any other amounts, in addition to or in lieu of those listed above, that  may be permitted by applicable Law.    The word “rent” as used in this Section 11.2 shall have the same meaning as the  defined term Rent in this Lease. The “worth at the time of award” of the amount referred to in  clauses (1) and (2) above is computed by allowing interest at the Default Rate. The worth at the  time of award of the amount referred to in clause (3) above is computed by discounting such  amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus  one percent (1%). For the purpose of determining unpaid Rent under clause (3) above, the monthly  Rent reserved in this Lease shall be deemed to be the sum of the Monthly Base Rent, monthly  storage space rent, if any, the amounts last payable by Tenant as Rent Adjustments for the calendar  year in which Landlord terminated this Lease as provided hereinabove, and any additional Rent  under this Lease.    (c) Even if Tenant is in Default and/or has abandoned the Premises, this Lease  





 






48    shall continue in effect for so long as Landlord does not terminate Tenant’s right to possession by  written notice as provided in Section 11.2(b) above, and Landlord may enforce all its rights and  remedies under this Lease, including the right to recover Rent as it becomes due under this Lease.  In such event, Landlord shall have all of the rights and remedies of a landlord under 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), or any successor statute. During such time as Tenant is in Default,  if Landlord has not terminated this Lease by written notice and if Tenant requests Landlord’s  consent to an assignment of this Lease or a sublease of the Premises, such consent shall be  governed by the terms and conditions of Article 10 above. Tenant acknowledges and agrees that  the provisions of Article 10 shall be deemed to constitute reasonable limitations of Tenant’s right  to assign or sublet. Tenant acknowledges and agrees that in the absence of written notice pursuant  to Section 11.2(b) above terminating Tenant’s right to possession, no other act of Landlord shall  constitute a termination of Tenant’s right to possession or an acceptance of Tenant’s surrender of  the Premises, including acts of maintenance or preservation or efforts to relet the Premises or the  appointment of a receiver upon initiative of Landlord to protect Landlord’s interest under this  Lease or the withholding of consent to a subletting or assignment, or terminating a subletting or  assignment, if in accordance with other provisions of this Lease.    (d) Reserved.    (e) Tenant hereby waives any and all rights to relief from forfeiture, redemption  or reinstatement granted by Law (including California Civil Code of Procedure Sections 1174 and  1179) in the event of Tenant being evicted or dispossessed for any cause or in the event of Landlord  obtaining possession of the Premises by reason of Tenant’s Default or otherwise in accordance  with this Lease.    (f) Notwithstanding any other provision of this Lease, a notice to Tenant given  under this Article and Article 24 of this Lease or given pursuant to California Code of Civil  Procedure Section 1161, and any notice served by mail, shall be deemed served, and the requisite  waiting period deemed to begin under said Code of Civil Procedure Section upon mailing (except  as may be required under Code of Civil Procedure Section 1161 et seq.), without any additional  waiting requirement under Code of Civil Procedure Section 1011 et seq. or by other Law. For  purposes of Code of Civil Procedure Section 1162, Tenant’s “place of residence”, “usual place of  business”, “the property” and “the place where the property is situated” shall mean and be the  Premises, whether or not Tenant has vacated same at the time of service.    (g) The voluntary or other surrender or termination of this Lease, or a mutual  termination or cancellation thereof, shall not work a merger and shall terminate all or any existing  assignments, subleases, subtenancies or occupancies permitted by Tenant, except if and as  otherwise specified in writing by Landlord.    11.3 ATTORNEY’S FEES    In the event any party brings any suit or other proceeding with respect to the subject matter  or enforcement of this Lease, the Prevailing Party (defined below) shall, in addition to such other  relief as may be awarded, be entitled to recover attorneys’ fees, expenses and costs of investigation  49    as actually incurred, including court costs, expert witness fees, costs and expenses of investigation,  and all attorneys’ fees, costs and expenses in any such suit or proceeding (including in any action  or participation in or in connection with any case or proceeding under the Bankruptcy Code, 11  United States Code Sections 101 et seq. (the “Bankruptcy Code”), or any successor statutes, in  establishing or enforcing the right to indemnification, in appellate proceedings, or in connection  with the enforcement or collection of any judgment obtained in any such suit or proceeding). For  purposes of this Section 11.3, “Prevailing Party” shall mean the party receiving substantially the  relief desired, whether by settlement, dismissal, summary judgment, judgment, or otherwise.    11.4 BANKRUPTCY    [Intentionally omitted.]    11.5 LANDLORD’S DEFAULT    Landlord shall be in default hereunder if Landlord fails to observe or perform any of the  covenants, conditions or provisions of this Lease and fails to cure such default within thirty (30)  days after Tenant’s written notice thereof to Landlord; provided, however, that with respect to any  failure that cannot reasonably be cured by Landlord within thirty (30) days, Landlord shall not be  deemed to be in default during the prosecution of such cure if Landlord promptly commences to  cure within thirty (30) days from the date of Tenant’s notice, diligently and continuously  prosecutes the curing of such failure to completion and actually cures such failure. In no event  shall Tenant have the right to terminate or rescind this Lease as a result of Landlord’s default as to  any covenant or agreement contained in this Lease. Tenant hereby waives such remedies of  termination and rescission and hereby agrees that, except as otherwise specifically set forth in this  Lease, Tenant’s remedies for default hereunder and for breach of any promise or inducement shall  be limited to a suit for damages and/or injunction and Tenant’s remedies in Section 11.6. In  addition, Tenant hereby covenants that, prior to the exercise of any such remedies, it will give any  Mortgagee notice of such default by Landlord (as specified in Section 23.2 below).    11.6 TENANT’S SELF HELP RIGHT    Landlord shall have thirty (30) days after notice from Tenant to perform (or commence to  perform, if the nature of the performance is such that more than thirty (30) days is reasonably  required), its repair and maintenance obligations under this Lease. If Landlord fails to provide  repairs or maintenance as required under this Lease, and such failure materially interferes with  Tenant’s use of the Premises, and Tenant has notified Landlord of the necessity of such repairs or  maintenance in writing, then Tenant may perform such repairs or maintenance at Landlord’s cost  by taking whatever action is reasonably necessary to do so, and at a commercially reasonable cost,  provided:    (a) Tenant gives Landlord (and any Mortgagee whose address has been  provided to Tenant, the current address of which is set forth in Section 1.1 of this Lease) notice of  Tenant’s intent to take such action at least ten (10) business days prior to taking any such action,  and Landlord further fails or refuses to commence repairs within said ten (10)-business day period;    (b) Tenant uses commercially reasonable efforts to minimize interference with  the rights of other tenants to use their respective premises in the Building;  50    (c) If such repairs or maintenance will affect the Building’s electrical,  mechanical, or HVAC systems, or the structural integrity of the Building, Tenant shall use only  those contractors used by Landlord in the Building that work on the Building’s systems, equipment  or structure (unless such contractors are unwilling or unable to perform such work, in which event  Tenant may utilize the services of any other qualified contractor approved by Landlord, which  approval shall not be unreasonably withheld, conditioned or delayed); and    (d) Landlord shall, within thirty (30) days after receipt of Tenant’s written  demand for payment of Tenant’s reasonable costs incurred in taking such action on Landlord’s  behalf (including a reasonably particularized statement), pay the invoice or deliver to Tenant a  detailed written objection to it. In no event, however, shall Tenant have the right to withhold rent  in the event that Landlord fails to timely pay such costs, and Tenant’s sole remedy shall be to  institute legal proceedings against Landlord to collect the amount set forth in Tenant’s invoice.    11.7 NO WAIVER    No delay or omission in the exercise of any right or remedy of either party upon any default  by the other party, and no exercise by Landlord of its rights pursuant to Section 25.16 to perform  any duty which Tenant fails timely to perform, shall impair any right or remedy or be construed  as a waiver. Except as otherwise expressly set forth in this Lease, no provision of this Lease shall  be deemed waived by either party unless such waiver is in writing signed by the waiving party.  The waiver by either party of any breach of any provision of this Lease shall not be deemed a  waiver of any subsequent breach of the same or any other provision of this Lease.    ARTICLE 12  SURRENDER OF PREMISES    12.1 IN GENERAL    Upon the Termination Date, Tenant shall surrender and vacate the Premises immediately  and deliver possession thereof to Landlord in a clean and reasonable condition, ordinary wear and  tear excepted, except that any damage from casualty and condemnation, any maintenance or  repairs that are Landlord’s obligation hereunder, and damage caused by Landlord, shall be  governed by the provisions of this Lease dealing specifically therewith. Tenant shall deliver to  Landlord all keys to the Premises. All improvements in and to the Premises, including any Tenant  Additions, but excluding Tenant’s trade fixtures and other fixtures, furnishings, and equipment  shall remain upon the Premises at the end of the Term without compensation to Tenant. Landlord,  however, by written notice to Tenant at the time it approves of any Tenant Alterations, may require  Tenant, at its expense, to remove (a) any Cable, and (b) any Tenant Additions that, in Landlord’s  reasonable judgment, are of a nature that would require removal and repair costs that are materially  in excess of the removal and repair costs associated with standard laboratory and office  improvements (collectively referred to as “Required Removables”). Required Removables may  include, without limitation, internal stairways, raised floors, personal baths and showers, vaults,  rolling file systems and structural alterations and modifications. The designated Required  Removables shall be removed by Tenant before the Termination Date. Tenant’s removal and  disposal of items pursuant to this Section 12.1 must comply with the Project’s Sustainability  Practices. Tenant shall repair damage caused by the installation or removal of Required  51    Removables. If Tenant fails to perform its obligations in a timely manner, Landlord may perform  such work at Tenant’s expense. In the event possession of the Premises is not delivered to Landlord  when required hereunder, or if Tenant shall fail to remove those items described above, Landlord  may (but shall not be obligated to), at Tenant’s expense, remove any of such property and store,  sell or otherwise deal with such property, and undertake, at Tenant’s expense, such restoration  work as Landlord deems necessary or advisable. Notwithstanding anything in this Section 12.1 to  the contrary, failure by Tenant to materially comply with the provisions of this Section 12.1 with  respect to any Required Removables that are required to be removed from the Premises by Tenant  hereunder shall constitute a failure of Tenant to validly surrender the Premises.    12.2 LANDLORD’S RIGHTS    All property which may be removed from the Premises by Landlord shall be conclusively  presumed to have been abandoned by Tenant and Landlord may deal with such property as  provided in Section 11.2(b), including the waiver and indemnity obligations provided in that  Section. Tenant shall also reimburse Landlord for all reasonable costs and expenses incurred by  Landlord in removing any Tenant Additions and in restoring the Premises to the condition required  by this Lease.    ARTICLE 13  HOLDING OVER    In the event that Tenant holds over in possession of the Premises after the Termination  Date, for each month or partial month Tenant holds over possession of the Premises, Tenant shall  pay Landlord (a) for the first two (2) months of such holding over, 125% of the monthly Rent  payable for the month immediately preceding the holding over (including 100% of any applicable  Rent Adjustments or increases to Rent Adjustments which Landlord may reasonably estimate),  and (b) thereafter, 150% of the monthly Rent payable for the month immediately preceding the  holding over (including 100% of any applicable Rent Adjustments or increases to Rent  Adjustments which Landlord may reasonably estimate). Tenant shall also pay all damages,  including consequential damages, sustained by Landlord by reason of such holding over, provided  that Tenant receives written notice that there is a new tenant for the Premises, which notice  Landlord shall deliver the earlier of: (i) ten (10) days after full execution of such new tenant’s  lease, or (ii) fifteen (15) days prior to the date Tenant must vacate the Premises in order to  accommodate such new tenant. The provisions of this Article shall not constitute a waiver by  Landlord of any re-entry rights of Landlord, and Tenant’s continued occupancy of the Premises  shall be as a tenancy in sufferance.    ARTICLE 14  DAMAGE BY FIRE OR OTHER CASUALTY    14.1 SUBSTANTIAL UNTENANTABILITY    (a) If any fire or other casualty (whether insured or uninsured) renders all or a  substantial portion of the Premises or the Building untenantable, Landlord shall, with reasonable  promptness (but in all cases within forty-five (45) days) after the occurrence of such damage,  estimate the length of time that will be required to substantially complete the repair and restoration  





 






52    (if applicable) and shall, by notice advise Tenant of such estimate (“Landlord’s Notice”). If  Landlord estimates that the amount of time required to substantially complete such repair and  restoration will exceed three hundred sixty-five (365) days from the date such damage occurred,  then Landlord, or Tenant shall have the right to terminate this Lease as of the date of such damage  by delivering written notice to the other party at any time within twenty (20) days after delivery of  Landlord’s Notice, provided that if Landlord so chooses, Landlord’s Notice may also constitute  such notice of termination.    (b) Unless this Lease is terminated as provided in the preceding subparagraph,  Landlord shall proceed with reasonable promptness to repair and restore the Premises to its  condition as existed prior to such casualty, subject to reasonable delays for insurance adjustments  and Force Majeure delays, and also subject to zoning Laws and building codes then in effect.  Landlord shall have no liability to Tenant, and Tenant shall not be entitled to terminate this Lease  if such repairs and restoration are not in fact completed within the time period estimated by  Landlord so long as Landlord shall proceed with reasonable diligence to complete such repairs and  restoration.    (c) Tenant acknowledges that Landlord shall be entitled to the full proceeds of  any property insurance coverage, whether carried by Landlord or Tenant, for damages to the  Premises, except for those proceeds of Tenant’s insurance for its own personal property and  equipment which would be removable by Tenant at the Termination Date. All such insurance  proceeds shall be payable to Landlord whether or not the Premises are to be repaired and restored;  provided, however, if this Lease is not terminated and the parties proceed to repair and restore  Tenant Additions at Tenant’s cost, to the extent Landlord received proceeds of Tenant’s insurance  covering Tenant Additions, such proceeds shall be applied to reimburse Tenant for its cost of  repairing and restoring Tenant Additions.    (d) Notwithstanding anything to the contrary herein set forth, Landlord shall  have no duty pursuant to this Section to repair or restore any portion of any Tenant Additions,  except to the extent the costs of such repair or restoration are covered by Landlord’s insurance  (including the applicable deductible amount) or would have been covered had Landlord  maintained the insurance required under this Lease, or to expend for any repair or restoration of  the Premises or Building in amounts in excess of insurance proceeds paid to Landlord and available  for repair or restoration (unless Tenant elects to make up any shortfall). Tenant acknowledges and  agrees that (i) Tenant’s insurance is primary as to any Tenant Additions, and (ii) Landlord has no  express obligation to insure any Tenant Additions pursuant to Article 16 below. Whether or not  this Lease is terminated pursuant to this Article 14, in no event shall Tenant be entitled to any  compensation or damages for loss of the use of the whole or any part of the Premises or for any  inconvenience or annoyance occasioned by any such damage, destruction, rebuilding or restoration  of the Premises or the Building or access thereto.    (e) Any repair or restoration of the Premises performed by Tenant shall be in  accordance with the provisions of Article 9 hereof.    14.2 INSUBSTANTIAL UNTENANTABILITY  53    If the Premises or the Building is damaged by a casualty but neither is rendered  substantially untenantable and Landlord reasonably estimates that the time to substantially  complete the repair or restoration will not exceed three hundred sixty-five (365) days from the date  such damage occurred, then Landlord shall proceed to repair and restore the Building or the  Premises other than Tenant Additions, with reasonable promptness, unless such damage is to the  Premises and occurs during the last six (6) months of the Term, in which event either Tenant or  Landlord shall have the right to terminate this Lease as of the date of such casualty by giving  written notice thereof to the other within twenty (20) days after the date of such casualty.  Notwithstanding the aforesaid, Landlord’s obligation to repair shall be limited in accordance with  the provisions of Section 14.1 above.    14.3 RENT ABATEMENT    If all or any part of the Premises are rendered untenantable by fire or other casualty and  this Lease is not terminated, Monthly Base Rent and Rent Adjustments shall abate for that part of  the Premises which is untenantable on a per diem basis from the date of the casualty until Landlord  has substantially completed the repair and restoration work in the Premises which it is required to  perform, provided, that as a result of such casualty, Tenant does not occupy the portion of the  Premises which is untenantable during such period.    14.4 WAIVER OF STATUTORY REMEDIES    The provisions of this Lease, including this Article 14, constitute an express agreement  between Landlord and Tenant with respect to any and all damage to, or destruction of, the Premises  or the Property or any part of either, and any Law, including Sections 1932(2), 1933(4), 1941 and  1942 of the California Civil Code, with respect to any rights or obligations concerning damage or  destruction shall have no application to this Lease or to any damage to or destruction of all or any  part of the Premises or the Property or any part of either, and are hereby waived.    ARTICLE 15  EMINENT DOMAIN    15.1 TAKING OF WHOLE OR SUBSTANTIAL PART    In the event the whole or any substantial part of the Building or of the Premises is taken or  condemned by any competent authority for any public use or purpose (including a deed given in  lieu of condemnation) and is thereby rendered untenantable, this Lease shall terminate as of the  date title vests in such authority, and Monthly Base Rent and Rent Adjustments shall be  apportioned as of the Termination Date. Notwithstanding anything to the contrary herein set forth,  in the event the taking is temporary (for less than the remaining Term of this Lease), Tenant may  elect either (i) to terminate this Lease or (ii) receive the entire award attributable to the Premises  in which case Tenant shall continue to pay Rent and this Lease shall not terminate.    15.2 TAKING OF PART    In the event a part of the Building or the Premises is taken or condemned by any competent  authority (or a deed is delivered in lieu of condemnation) and this Lease is not terminated, this  Lease shall be amended to reduce (or, with respect to Tenant’s Share, increase) the Monthly Base  54    Rent and Tenant’s Share to reflect the Rentable Area of the Premises or Building, as the case may  be, remaining after any such taking or condemnation. Landlord, upon receipt and to the extent of  the award in condemnation (or proceeds of sale) shall make necessary repairs and restorations to  the Premises (exclusive of Tenant Additions) and to the Building to the extent necessary to  constitute the portion of the Building not so taken or condemned as a complete architectural and  economically efficient unit. Notwithstanding the foregoing, if as a result of any taking, or a  governmental order that the grade of any street or alley adjacent to the Building is to be changed  and such taking or change of grade makes it necessary to substantially remodel or restore the  Building or prevents the economical operation of the Building, Landlord shall have the right to  terminate this Lease upon ninety (90) days prior written notice to Tenant.    15.3 COMPENSATION    Landlord shall be entitled to receive the entire award (or sale proceeds) from any such  taking, condemnation or sale without any payment to Tenant, and Tenant hereby assigns to  Landlord, Tenant’s interest, if any, in such award; provided, however, Tenant shall have the right  separately to pursue against the condemning authority a separate award in respect to (i) the loss, if  any, to Tenant Additions paid for by Tenant without any credit or allowance from Landlord so  long as there is no diminution of Landlord’s award as a result, (ii) Tenant’s relocation expenses,  (iii) the taking of personal property and fixtures belonging to Tenant and (iv) the interruption of  or damage to Tenant’s business.          16.1 TENANT’S INSURANCE  ARTICLE 16  INSURANCE    Tenant, at Tenant’s expense, agrees to maintain in force, with a reputable company or  companies having an A.M. Best Rating of not less than A-VIII, during the Term: (a) Commercial  General Liability Insurance on a primary basis and without any right of contribution from any  insurance carried by Landlord covering the Premises on an occurrence basis against all claims for  personal injury, bodily injury, death and property damage, including contractual liability covering  the indemnification provisions in this Lease, and such insurance shall be for not less than a  combined single limit (each occurrence and in the aggregate) of Five Million and No/100 Dollars  ($5,000,000.00) (which limit may be achieved through use of umbrella coverage); (b) Workers’  Compensation and Employers’ Liability Insurance to the extent required by and in accordance  with the Laws of the State of California; (c) “All Risks” property insurance in an amount adequate  to cover the full replacement cost of all Tenant Additions, equipment, installations, fixtures and  contents of the Premises in the event of loss from water damage, earthquake sprinkler leakage, and  such other risks as Landlord may designate from time to time; and (d) in the event a motor vehicle  is to be used by Tenant in connection with its business operation from the Premises,  Comprehensive Automobile Liability Insurance coverage with limits of not less than One Million  and No/100 Dollars ($1,000,000.00) combined single limit coverage against bodily injury liability  and property damage liability arising out of the use by or on behalf of Tenant, its agents and  employees in connection with this Lease, of any owned, non-owned or hired motor vehicles.    16.2 FORM OF POLICIES  55    Each policy referred to in Section 16.1 shall satisfy the following requirements. Each  policy shall (i) name Landlord and the Indemnitees as additional insureds (except Workers’  Compensation and Employers’ Liability Insurance), (ii) be issued by one or more responsible  insurance companies licensed to do business in the State of California, (iii) where applicable,  provide for deductible amounts not to exceed $25,000.00 without Landlord’s consent (not to be  unreasonably withheld or delayed), and (iv) each policy of “All-Risks” property insurance shall  provide that the policy shall not be invalidated should the insured waive in writing prior to a loss,  any or all rights of recovery against any other party for losses covered by such policies. Tenant  shall deliver to Landlord, certificates of insurance prior to the expiration date of each policy.  Additionally, Tenant shall provide Landlord written notice of any cancellation or amendment of  any such insurance within two (2) business days following Tenant’s knowledge of the same. If  Tenant fails to carry the insurance required under this Article 16 or fails to provide certificates of  renewal as and when required hereunder, and does not cure such failure within the time periods  set forth in Section 11.1(d), Landlord may, but shall not be obligated to acquire such insurance on  Tenant’s behalf or Tenant’s sole cost and expense.    16.3 LANDLORD’S INSURANCE    Landlord agrees to purchase and keep in full force and effect during the Term hereof,  including any extensions or renewals thereof, “All Risks” property insurance under policies issued  by insurers of recognized responsibility, qualified to do business in the State of California on the  Building in amounts sufficient to cover 100% of the replacement cost thereof, insuring against fire  and such other risks as may be included in standard forms of “All Risks” coverage insurance  reasonably available from time to time (which requirement may be achieved through use of a single  insurance policy covering multiple buildings owned by Landlord and affiliates of Landlord).  Landlord agrees to maintain in force during the Term, Commercial General Liability Insurance  covering the Building on an occurrence basis against all claims for personal injury, bodily injury,  death, and property damage. Such insurance shall be for a combined single limit (each occurrence  and in the aggregate) of not less than Five Million and No/100 Dollars ($5,000,000.00) (which  limit may be achieved through use of umbrella coverage). Neither Landlord’s obligation to carry  such insurance nor the carrying of such insurance shall be deemed to be an indemnity by Landlord  with respect to any claim, liability, loss, cost or expense due, in whole or in part, to Tenant’s  negligent acts or omissions or willful misconduct. Landlord agrees to maintain in force during the  Term, Rental Loss Insurance in an amount not less than one (1) year’s rent for the Building.  Without obligation to do so, Landlord may, in its sole discretion from time to time, carry insurance  in amounts greater and/or for coverage additional to the coverage and amounts set forth above.    16.4 WAIVER OF SUBROGATION    Landlord hereby waives any and all right of recovery which it might otherwise have against  Tenant, its servants, agents and employees, for loss or damage occurring to the Real Property and  the fixtures, appurtenances and equipment therein, to the extent the same is covered by Landlord’s  insurance or would have been covered by Landlord’s insurance had Landlord maintained the  insurance it is required to maintain under this Lease, in each case including deductibles,  notwithstanding that such loss or damage may result from the negligence or fault of Tenant, its  servants, agents or employees. Tenant hereby waives any and all right of recovery which it might  otherwise have against Landlord, its servants, and employees and against every other tenant of the  





 






56    Real Property who shall have executed a similar waiver as set forth in this Section 16.4(c) for loss  or damage to Tenant Additions, whether or not removable, and to Tenant’s furniture, furnishings,  fixtures and other property removable by Tenant under the provisions hereof to the extent the same  is coverable by Tenant’s insurance required under this Lease, notwithstanding that such loss or  damage may result from the negligence or fault of Landlord, its servants, agents or employees, or  such other tenant and the servants, agents or employees thereof. Each party shall cause each  insurance policy obtained by it to provide that the insurance company waives all right of recovery  by way of subrogation in connection with any damage covered by such policy.    16.5 NOTICE OF CASUALTY    Tenant shall give Landlord notice in case of a fire or accident in the Premises promptly  after Tenant is aware of such event.    ARTICLE 17  WAIVER OF CLAIMS AND INDEMNITY    17.1 WAIVER OF CLAIMS    To the extent permitted by Law, Tenant hereby releases the Indemnitees from, and waives  all claims for, damage to person or property sustained by Tenant or any occupant of the Premises  or the Property resulting directly or indirectly from any existing or future condition, defect, matter  or thing in and about the Premises or the Property or any part of either or any equipment or  appurtenance therein, or resulting from any accident in or about the Premises or the Property, or  resulting directly or indirectly from any act or neglect of any tenant or occupant of the Property or  of any other person, including Landlord’s agents and servants, except to the extent caused by the  gross negligence or willful and wrongful act of any of the Indemnitees or their agents, employees,  or representatives, or the breach of this Lease by Landlord. To the extent permitted by Law, Tenant  hereby waives any consequential damages, compensation or claims for inconvenience or loss of  business, rents, or profits as a result of such injury or damage. If any such damage, whether to the  Premises or the Property or any part of either, or whether to Landlord or to other tenants in the  Property, results from any act or neglect of Tenant, its employees, servants, agents, contractors,  invitees or customers, Tenant shall be liable therefor and Landlord may, at Landlord’s option,  repair such damage and Tenant shall, upon demand by Landlord, as payment of additional Rent  hereunder, reimburse Landlord within ten (10) days after demand for the total cost of such repairs,  in excess of amounts, if any, paid to Landlord under insurance covering such damages. Tenant  shall not be liable for any such damage caused by its acts or neglect if Landlord or a tenant has  recovered the full amount of the damage from proceeds of insurance policies and the insurance  company has waived its right of subrogation against Tenant.    17.2 INDEMNITY    (a) To the extent permitted by Law, Tenant hereby indemnifies, and agrees to  protect, defend and hold the Indemnitees harmless, against any and all actions, claims, demands,  liability, costs and expenses, including attorneys’ fees and expenses for the defense thereof, arising  from Tenant’s occupancy of the Premises, from the undertaking of any Tenant Additions or repairs  to the Premises, from the conduct of Tenant’s business on the Premises, or from any breach or  57    default on the part of Tenant in the performance of any covenant or agreement on the part of Tenant  to be performed pursuant to the terms of this Lease, or from any willful act or negligence of Tenant,  its agents, contractors, servants, employees, customers or invitees, in or about the Premises or the  Property or any part of either. In case of any action or proceeding brought against the Indemnitees  by reason of any such claim, upon notice from Landlord, Tenant covenants to defend such action  or proceeding by counsel reasonably selected by Tenant. The foregoing indemnity shall not  operate to relieve Indemnitees of liability to the extent such liability is caused by the gross  negligence or willful and wrongful act of Indemnitees. Further, the foregoing indemnity is subject  to and shall not diminish any waivers in effect in accordance with Section 16.4 by Landlord or its  insurers to the extent of amounts, if any, paid to Landlord under its “All Risks” property insurance  or that would have been paid to Landlord had Landlord maintained the insurance it was required  to maintain under this Lease, plus deductibles paid by Landlord under such policies. This  Article 17 shall survive the expiration or earlier termination of this Lease.    (b) Subject to the provisions of Sections 17.1 and 17.2(a) above, Landlord shall  indemnify, defend and protect Tenant (and its partners, officers, shareholders, directors, members,  managers, trustees, beneficiaries, employees, transferees, principals, contractors, servants, agents  and representatives (Tenant and such other parties being referred to herein each as a “Tenant  Indemnitee”), and hold Tenant Indemnitees harmless of and from any and all claims, proceedings,  loss, cost, damage, causes of action, liabilities, injury or expense arising out of or related to claims  of injury to or death of persons, damage to property occurring or resulting directly or indirectly  from (i) the condition or design of the Common Areas (only to the extent that such indemnity  obligations of Landlord hereunder would be covered by the proceeds of liability insurance  maintained by Landlord), or (ii) the active negligence or willful misconduct of Landlord or its  authorized agents, such indemnity to include, but without limitation, the obligation to provide all  costs of defense against any such claims; provided, however, that the foregoing indemnity shall  not be applicable to claims to the extent arising by reason of the active negligence or willful  misconduct of Tenant or any Tenant Indemnitees. The foregoing notwithstanding, Landlord shall  not be required to indemnify or defend Tenant Indemnitees from any claims, proceedings, loss,  cost, damage, causes of action, liabilities, injury or expense arising out of or related to theft, fire,  vandalism, assault, battery, act of God, breaches of security, acts of the public enemy, acts of  terrorists or criminals, riot, strike, insurrection, war, court order, requisition or order of  governmental body or authority, whether or not the negligence of Landlord or its agents or  employees was a cause of, or in any way contributed to, such loss, damage, death or injury. This  Section 17.2(b) shall survive the expiration or earlier termination of this Lease.    17.3 WAIVER OF CONSEQUENTIAL DAMAGES    Subject to Tenant’s obligations under Section 7.1(f)(5) and Article 13, and except as  otherwise provided in Section 11.2(b), to the extent permitted by law, each party hereby waives  and releases the other party from any consequential damages, compensation or claims for  inconvenience or loss of business, rents or profits as a result of any injury or damage, whether or  not caused by the willful and wrongful act of such party.  58          18.1 RULES  ARTICLE 18  RULES AND REGULATIONS    Tenant agrees for itself and for its subtenants, employees, agents, and invitees to comply  with the rules and regulations listed on Exhibit C-2 attached hereto and with all reasonable  modifications and additions thereto which Landlord may make from time to time, provided that  Landlord gives Tenant reasonable advance notice of such modifications and additions.    18.2 ENFORCEMENT    Landlord shall use reasonable efforts to enforce the rules and regulations of the Project in  a uniform and non-discriminatory manner.    ARTICLE 19  LANDLORD’S RESERVED RIGHTS    Landlord shall have the following rights exercisable without notice to Tenant and without  liability to Tenant for damage or injury to persons, property or business and without being deemed  an eviction or disturbance of Tenant’s use or possession of the Premises or giving rise to any claim  for offset or abatement of Rent: (1) to change the Building’s name or street address upon thirty  (30) days’ prior written notice to Tenant (provided, that if Landlord changes the Building’s name  or street address, Landlord shall reimburse Tenant for Tenant’s actual costs of obtaining new  stationary, letterhead, and similar materials that identified the Building’s name or street address);  (2) to install, affix and maintain all signs on the exterior and/or interior of the Building, provided  that it does not materially and adversely impact Tenant’s use of Premises or the Building; (3) to  designate and/or approve prior to installation, all types of signs, window shades, blinds, drapes,  awnings or other similar items, and all internal lighting that may be visible from the exterior of the  Premises; (4) upon reasonable notice to Tenant, to display the Premises to prospective purchasers  and lenders during Standard Operating Hours at any time during the Term and to prospective  tenants at Standard Operating Hours during the last nine (9) months of the Term and subject to  execution of the Confidentiality Agreement; (5) to grant to any party the exclusive right to conduct  any business or render any service in or to the Building, provided such exclusive right shall not  operate to prohibit Tenant from or interfere with Tenant using the Premises for the purpose  permitted hereunder; (6) to change the arrangement and/or location of entrances or passageways,  doors and doorways, corridors, elevators, stairs, washrooms or public portions of the Building, and  to close entrances, doors, corridors, elevators or other facilities, provided that such action shall not  materially and adversely interfere with Tenant’s access to the Premises or the Building; (7) to have  access for Landlord and other tenants of the Building to any mail chutes and boxes located in or  on the Premises as required by any applicable rules of the United States Post Office; and (8) to  close the Building after Standard Operating Hours, except that Tenant and its employees and  invitees shall be entitled to admission at all times, under such reasonable regulations as Landlord  prescribes for security purposes.  59          20.1 IN GENERAL  ARTICLE 20  ESTOPPEL CERTIFICATE    Within ten (10) business days after written request therefor by either party (the “Requesting  Party”), the other party (the “Certifying Party”) agrees as directed in such request to execute the  proposed form of estoppel certificate (an “Estoppel Certificate”) (which may require that such  instrument be notarized), binding upon the Certifying Party, certifying (i) that this Lease is  unmodified and in full force and effect (or if there have been modifications, a description of such  modifications and that this Lease as modified is in full force and effect); (ii) the dates to which  Rent has been paid; (iii) if Tenant is the Certifying Party, that Tenant is in the possession of the  Premises if that is the case; (iv) that, to the Certifying Party’s knowledge, the Requesting Party is  not in default under this Lease, or, if the Certifying Party believes the Requesting Party is in  default, the nature thereof in detail; (v) that the Certifying Party has no offsets or defenses to the  performance of its obligations under this Lease (or if the Certifying Party believes there are any  offsets or defenses, a full and complete explanation thereof); (vi) that, if Tenant is the Certifying  Party, the Premises have been completed in accordance with the terms and provisions hereof or  the Work Letter, that Tenant has accepted the Premises and the condition thereof and of all  improvements thereto and has no claims against Landlord or any other party with respect thereto,  if that is the case; (vii) if Tenant is the Certifying Party, that if an assignment of rents or leases has  been served upon Tenant by a Mortgagee, Tenant will acknowledge receipt thereof and agree to  be bound by the provisions thereof; (viii) if Tenant is the Certifying Party that Tenant will give to  the Mortgagee copies of all notices required or permitted to be given by Tenant to Landlord; and  (ix) to any other information reasonably requested.    20.2 ENFORCEMENT    In the event that Tenant fails to timely deliver an Estoppel Certificate within five (5)  business days after receiving a second written request (which second written request may not be  delivered by Landlord until ten (10) business days after the first written request), then such failure  shall be a Default for which there shall be no cure or grace period. In addition to any other remedy  available to Landlord, Landlord may impose a charge equal to $500.00 for each day that Tenant  fails to deliver an Estoppel Certificate; and (i) Tenant shall be bound to, and deemed to have  irrevocably agreed to, the accuracy and truthfulness of the Estoppel Certificate delivered to Tenant,  and (ii) Landlord, and any third party receiving such form of Estoppel Certificate, including a  Mortgagee or purchaser, may rely upon the accuracy and truthfulness thereof.    ARTICLE 21  RELOCATION OF TENANT    [Intentionally omitted.]    ARTICLE 22  REAL ESTATE BROKERS    Tenant represents that, except for the broker(s) listed in Section 1.1, Tenant has not dealt  with any real estate broker, salesperson, or finder in connection with this Lease, and no such person  





 






60    initiated or participated in the negotiation of this Lease, or showed the Premises to Tenant. Tenant  hereby agrees to indemnify, protect, defend and hold Landlord and the Indemnitees, harmless from  and against any and all liabilities and claims for commissions and fees arising out of a breach of  the foregoing representation, as well as from any claim or claims for any commission or fee by  any broker or other party claiming to represent Tenant in connection with any future extensions or  renewals of the Term. Landlord agrees to pay any commission to which the brokers listed in  Section 1.1 are entitled in connection with this Lease pursuant to Landlord’s written agreement  with such broker.    ARTICLE 23  MORTGAGEE PROTECTION    23.1 SUBORDINATION AND ATTORNMENT    (a) Subject to Tenant’s rights under Section 23.1(b) below regarding the SNDA  (as defined in Section 23.1(b) below), this Lease is and shall be expressly subject and subordinate  at all times to (i) any ground or underlying lease of the Real Property, now or hereafter existing,  and all amendments, extensions, renewals and modifications to any such lease, and (ii) the lien of  any mortgage or trust deed now or hereafter encumbering fee title to the Real Property and/or the  leasehold estate under any such lease, and all amendments, extensions, renewals, replacements and  modifications of such mortgage or trust deed and/or the obligation secured thereby, unless such  ground lease or ground lessor, or mortgage, trust deed or Mortgagee, expressly provides or elects  that this Lease shall be superior to such lease or mortgage or trust deed . If any such mortgage or  trust deed is foreclosed (including any sale of the Real Property pursuant to a power of sale), or if  any such lease is terminated, upon request of the Mortgagee or ground lessor, as the case may be,  Tenant shall attorn to the purchaser at the foreclosure sale or to the ground lessor under such lease,  as the case may be, provided, however, that except as set forth in the applicable subordination,  non-disturbance and attornment agreement, such purchaser or ground lessor shall not be (i) bound  by any payment of Rent for more than one month in advance except payments in the nature of  security for the performance by Tenant of its obligations under this Lease; (ii) subject to any offset,  defense or damages arising out of a default of any obligations of any preceding Landlord, except  to the extent such default constitutes a continuing default by Landlord; or (iii) liable for any  security deposits not actually received in cash by such purchaser or ground lessor. The terms of  this paragraph shall survive any termination of this Lease by reason of foreclosure.    (b) Tenant’s obligation to subordinate to any Mortgagee shall be conditioned  on Landlord causing such Mortgagee to sign and deliver to Tenant a non-disturbance agreement  in substantially the form attached as Exhibit D hereto (the “SNDA”); provided, however, that (i)  delivery of the SNDA in a form appropriate for recordation, executed by such Mortgagee shall be  deemed satisfaction of the condition set forth in this Section 23.1(b), and (ii) Tenant shall be  responsible for any fees charged by Mortgagee, and its own attorney’s fees, in connection with the  SNDA. Landlord shall make best efforts to deliver a fully-executed and acknowledged SNDA to  Tenant within ninety (90) days after the date of full execution and delivery of this Lease; provided,  however, Landlord’s failure to do so shall in no event modify any of Tenant’s obligations under  this Lease. Notwithstanding the foregoing to the contrary, if Landlord fails to deliver a fully-  executed and acknowledged SNDA to Tenant within ninety (90) days after the date of full  execution and delivery of this Lease, then as Tenant’s sole remedy, commencing as of the 91st day  61    after such date, Tenant may defer payment of one-half (1⁄2) of the Monthly Base Rent otherwise  due under this Lease, with such deferment continuing until the date of such delivery (the “Deferred  Monthly Base Rent”). Upon such delivery, the Deferred Monthly Base Rent shall be immediately  due and payable. In no event shall Landlord be liable for special or consequential damages as a  result of any such delay in delivering the SNDA.    23.2 MORTGAGEE PROTECTION  [Intentionally omitted.]  ARTICLE 24  NOTICES    (a) All notices, demands or requests provided for or permitted to be given  pursuant to this Lease must be in writing and shall be personally delivered, sent by Federal Express  or other reputable overnight courier service, or mailed by first class, registered or certified United  States mail, return receipt requested, postage prepaid.    (b) All notices, demands or requests to be sent pursuant to this Lease shall be  deemed to have been properly given or served by delivering or sending the same in accordance  with this Section, addressed to the parties hereto at their respective addresses listed in Section 1.1.    (c) Notices, demands or requests sent by mail or overnight courier service as  described above shall be effective upon delivery or, if delivery is refused, upon the first attempted  delivery. However, except with respect to a notice given under Code of Civil Procedure Section  1161 et seq., the time period in which a response to any such notice, demand or request must be  given shall commence to run from (i) in the case of delivery by mail, the date of receipt on the  return receipt of the notice, demand or request by the addressee thereof, or (ii) in the case of  delivery by Federal Express or other overnight courier service, the date of acceptance of delivery  by an employee, officer, director or partner of Landlord or Tenant. Rejection or other refusal to  accept or the inability to deliver because of changed address of which no notice was given, as  indicated by advice from Federal Express or other overnight courier service or by mail return  receipt, shall be deemed to be receipt of notice, demand or request sent. Notices may also be  served by personal service upon any officer, director or partner of Landlord or Tenant, and shall  be effective upon such service.    (d) By giving to the other party at least thirty (30) days written notice thereof,  either party shall have the right from time to time during the term of this Lease to change their  respective addresses for notices, statements, demands and requests, provided such new address  shall be within the United States of America.    ARTICLE 25  MISCELLANEOUS    25.1 LATE CHARGES    (a) All payments required hereunder (other than the Monthly Base Rent, Rent  Adjustments, and Rent Adjustment Deposits, which shall be due as hereinbefore provided) to  62    Landlord shall be paid within fifteen (15) business days after Landlord’s demand therefor. All  such amounts (including Monthly Base Rent, Rent Adjustments, and Rent Adjustment Deposits)  not paid when due shall bear interest from the date due until the date paid at the Default Rate in  effect on the date such payment was due.    (b) In the event Tenant is more than five (5) days late in paying any installment  of Rent due under this Lease, Tenant shall pay Landlord a late charge equal to five percent (5%)  of the delinquent installment of Rent. The parties agree that (i) such delinquency will cause  Landlord to incur costs and expenses not contemplated herein, the exact amount of which will be  difficult to calculate, including the cost and expense that will be incurred by Landlord in processing  each delinquent payment of rent by Tenant, (ii) the amount of such late charge represents a  reasonable estimate of such costs and expenses and that such late charge shall be paid to Landlord  for each delinquent payment in addition to all Rent otherwise due hereunder. The parties further  agree that the payment of late charges and the payment of interest provided for in subparagraph  (a) above are distinct and separate from one another in that the payment of interest is to compensate  Landlord for its inability to use the money improperly withheld by Tenant, while the payment of  late charges is to compensate Landlord for its additional administrative expenses in handling and  processing delinquent payments.    (c)     Payment of interest at the Default Rate and/or of late charges shall not  excuse or cure any default by Tenant under this Lease, nor shall the foregoing provisions of this  Article or any such payments prevent Landlord from exercising any right or remedy available to  Landlord upon Tenant’s failure to pay Rent when due, including the right to terminate this Lease.    25.2 ARBITRATION    Except as otherwise set forth below, any dispute between Landlord and Tenant arising  under or relating to the Lease, shall be resolved through arbitration in accordance with the  Comprehensive Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services  (“JAMS”), as amended from time to time. The arbitration shall take place in San Francisco,  California. Notwithstanding any JAMS rules to the contrary, the arbitration shall be conducted by  a single arbitrator. The arbitrator shall not have the power, jurisdiction, or authority to commit  errors of law. The arbitrator’s decision will be final and binding, will not be subject to appeal, and  may be entered as a final judgment in any court of competent jurisdiction; provided, however, that  the decision may be vacated or corrected pursuant to California Code of Civil Procedure Sections  1286.2 or 1286.6, including without limitation, on the grounds that the arbitrator exceeded his or  her authority by committing an error of law. All arbitration proceedings shall be confidential, and  neither the parties nor the arbitrator may disclose the content or results of any arbitration hereunder  without the written consent of all parties to the dispute, except as necessary to confirm or vacate  the arbitrator's award. Notwithstanding anything contained in this Article 34, either Landlord or  Tenant shall be entitled to (A) commence legal proceedings seeking any injunctive or other  provisional relief as may be necessary to define or protect the rights and enforce the obligations  contained in the Lease pending the resolution of a dispute in accordance with the arbitration  procedures set forth in this Section 25.2, (B) join any arbitration proceeding arising out of this  Lease with any other arbitration proceeding arising out of this Lease, or (C) for Landlord,  commence an action in Superior Court to recover possession of the Premises.  63      WE HAVE READ AND UNDERSTAND THE FOREGOING SECTION AND AGREE TO  SUBMIT THE DISPUTES DESCRIBED ABOVE TO ARBITRATION UNDER THE  DESCRIBED PROCEDURES.      Landlord Tenant    25.3 NO DISCRIMINATION    Tenant agrees for Tenant and Tenant’s heirs, executors, administrators, successors and  assigns and all persons claiming under or through Tenant, and this Lease is made and accepted  upon and subject to the following conditions: that there shall be no discrimination against or  segregation of any person or group of persons on account of race, color, creed, religion, sex, marital  status, national origin or ancestry (whether in the leasing, subleasing, transferring, use, occupancy,  tenure or enjoyment of the Premises or otherwise) nor shall Tenant or any person claiming under  or through Tenant establish or permit any such practice or practices of discrimination or  segregation with reference to the use or occupancy of the Premises by Tenant or any person  claiming through or under Tenant.    25.4 FINANCIAL STATEMENTS    Within ten (10) business days after written request from Landlord (which request Landlord  shall make not more often than once per calendar year and then only in connection with a sale or  refinance of the Project), Tenant shall provide Landlord with current financial statements setting  forth Tenant’s financial condition and net worth for the most recent quarter, including balance  sheets and statements of profits and losses, to the extent such statements are prepared in accordance  with Tenant’s ordinary business practices. Landlord shall keep such financial information  confidential and shall only disclose such information to Landlord’s lenders, consultants,  purchasers or investors, or other agents (who shall be subject to the same confidentiality  obligations) on a need to know basis in connection with the administration of this Lease. Tenant  need not provide the financial statements required under this Section 25.4 so long as same are  publicly available free of charge.    25.5 OPTION    This Lease shall not become effective as a lease or otherwise until executed and delivered  by both Landlord and Tenant. The submission of this Lease to Tenant does not constitute a  reservation of or option for the Premises, but when executed by Tenant and delivered to Landlord,  this Lease shall constitute an irrevocable offer by Tenant in effect for five (5) days to lease the  Premises on the terms and conditions herein contained.    25.6 AUTHORITY    Tenant represents and warrants to Landlord that it has full authority and power to enter into  and perform its obligations under this Lease, that the person executing this Lease is fully  empowered to do so, and that no consent or authorization is necessary from any third party.  





 






64    Landlord may request that Tenant provide Landlord evidence of Tenant’s authority. Landlord  represents and warrants to Tenant that it has full authority and power to enter into and perform its  obligations under this Lease, that the person executing this Lease is fully empowered to do so, and  that no consent or authorization is necessary from any third party. Tenant may request that  Landlord provide Tenant evidence of Landlord’s authority.    25.7 ENTIRE AGREEMENT    This Lease, the Exhibits, and Riders attached hereto contain the entire agreement between  Landlord and Tenant concerning the Premises and there are no other agreements, either oral or  written, and no other representations or statements, either oral or written, on which Tenant has  relied. This Lease shall not be modified except by a writing executed by Landlord and Tenant.    25.8 RESERVED    25.9 EXCULPATION    Tenant agrees, on its behalf and on behalf of its successors and assigns, that any liability  or obligation under this Lease shall only be enforced against Landlord’s equity interest in the  Property and/or interest in the proceeds from the Property (including a sale or financing thereof),  and in no event against any other assets of Landlord, or Landlord’s members, officers, directors or  partners, and that any liability of Landlord with respect to this Lease shall be so limited and Tenant  shall not be entitled to any judgment in excess of such amount.    25.10 ACCORD AND SATISFACTION    No payment by Tenant or receipt by Landlord of a lesser amount than any installment or  payment of Rent due shall be deemed to be other than on account of the amount due, and no  endorsement or statement on any check or any letter accompanying any check or payment of Rent  shall be deemed an accord and satisfaction, and Landlord may accept such check or payment  without prejudice to Landlord’s right to recover the balance of such installment or payment of Rent  or pursue any other remedies available to Landlord. No receipt of money by Landlord from Tenant  after the termination of this Lease or Tenant’s right of possession of the Premises shall reinstate,  continue or extend the Term. Receipt or acceptance of payment from anyone other than Tenant,  including an assignee of Tenant, is not a waiver of any breach of Article 10, and Landlord may  accept such payment on account of the amount due without prejudice to Landlord’s right to pursue  any remedies available to Landlord.    25.11 LANDLORD’S OBLIGATIONS ON SALE OF BUILDING    In the event of any sale or other transfer of the Building, Landlord shall be entirely freed  and relieved of all agreements and obligations of Landlord hereunder accruing or to be performed  after the date of such sale or transfer, and any remaining liability of Landlord with respect to this  Lease shall be limited to the dollar amount specified in Section 25.9 and Tenant shall not be entitled  to any judgment in excess of such amount.    25.12 BINDING EFFECT  65    Subject to the provisions of Article 10, this Lease shall be binding upon and inure to the  benefit of Landlord and Tenant and their respective heirs, legal representatives, successors and  permitted assigns.    25.13 CAPTIONS    The Article and Section captions in this Lease are inserted only as a matter of convenience  and in no way define, limit, construe, or describe the scope or intent of such Articles and Sections.    25.14 TIME; APPLICABLE LAW; CONSTRUCTION    Time is of the essence of this Lease and each and all of its provisions. This Lease shall be  construed in accordance with the Laws of the State of California. If more than one person signs  this Lease as Tenant, the obligations hereunder imposed shall be joint and several. If any term,  covenant or condition of this Lease or the application thereof to any person or circumstance shall,  to any extent, be invalid or unenforceable, the remainder of this Lease, or the application of such  term, covenant or condition to persons or circumstances other than those as to which it is held  invalid or unenforceable, shall not be affected thereby and each item, covenant or condition of this  Lease shall be valid and be enforced to the fullest extent permitted by Law. Wherever the term  “including” or “includes” is used in this Lease, it shall have the same meaning as if followed by  the phrase “but not limited to”. The language in all parts of this Lease shall be construed according  to its normal and usual meaning and not strictly for or against either Landlord or Tenant.    25.15 ABANDONMENT    In the event Tenant vacates or abandons the Premises but is otherwise in compliance with  all the terms, covenants and conditions of this Lease, Landlord shall (i) have the right to enter into  the Premises in order to show the space to prospective tenants, and (ii) have the right to reduce the  services provided to Tenant pursuant to the terms of this Lease to such levels as Landlord  reasonably determines to be adequate services for an unoccupied premises. Tenant expressly  acknowledges that in the absence of written notice pursuant to Section 11.2(b) or pursuant to  California Civil Code Section 1951.3 terminating Tenant’s right to possession, none of the  foregoing acts of Landlord or any other act of Landlord shall constitute a termination of Tenant’s  right to possession or an acceptance of Tenant’s surrender of the Premises, and this Lease shall  continue in effect.    25.16 LANDLORD’S RIGHT TO PERFORM TENANT’S DUTIES    If Tenant fails timely to perform any of its duties under this Lease beyond any applicable  notice and cure periods, Landlord shall have the right (but not the obligation), to perform such  duty on behalf and at the expense of Tenant without prior notice to Tenant, and all sums expended,  or expenses incurred by Landlord in performing such duty shall be deemed to be additional Rent  under this Lease and shall be due and payable upon demand by Landlord.    25.17 SECURITY SYSTEM    Landlord shall continue to operate and maintain, throughout the term of this Lease, the  security systems, monitoring, programs, and patrol that it operates and maintains as of the date of  66    this Lease, subject to such changes as may be necessary due to changes in technology or standard  industry practices. Landlord shall not be responsible for the quality of any such patrol or system  which may be provided hereunder or for damage or injury to Tenant, its employees, invitees or  others due to the failure, action or inaction of such patrol or system.    25.18 NO LIGHT, AIR OR VIEW EASEMENTS    Any diminution or shutting off of light, air or view by any structure which may be erected  on lands of or adjacent to the Project shall in no way affect this Lease or impose any liability on  Landlord.    25.19 RECORDATION    Neither this Lease, nor any notice nor memorandum regarding the terms hereof, shall be  recorded by Tenant. Any such unauthorized recording shall be a Default for which there shall be  no cure or grace period. Tenant agrees to execute and acknowledge, at the request of Landlord, a  memorandum of this Lease, in recordable form.    25.20 SURVIVAL    The waivers of the right of jury trial, the other waivers of claims or rights, the releases and  the obligations of each party under this Lease to indemnify, protect, defend and hold harmless the  other party shall survive the expiration or termination of this Lease, and so shall all other  obligations or agreements which by their terms survive expiration or termination of this Lease.    25.21 OFAC    (a) Tenant hereby represents, warrants and covenants to Landlord, either that  (i) Tenant is regulated by the SEC, FINRA or the Federal Reserve (a “Regulated Entity”) or (ii)  neither Tenant nor, to Tenant’s knowledge, any person or entity that directly or indirectly (A)  controls Tenant or (B) has an ownership interest in Tenant of twenty-five percent (25%) or more,  appears on the list of Specially Designated Nationals and Blocked Persons (“OFAC List”)  published by the Office of Foreign Assets Control (“OFAC”) of the U.S. Department of the  Treasury.    (b) If, in connection with this Lease, there is one or more Guarantors of  Tenant’s obligations under this Lease, then Tenant further represents, warrants and covenants  either that (i) any such Guarantor is a Regulated Entity or (ii) neither Guarantor nor, to Tenant’s  knowledge, any person or entity that directly or indirectly (A) controls such Guarantor or (B) has  an ownership interest in such Guarantor of twenty-five percent (25%) or more, appears on the  OFAC List.    (c) Landlord advises Tenant hereby that the purpose of this Section is to  provide to Landlord information and assurances to enable Landlord to comply with the Laws  relating to OFAC.    (d) Tenant acknowledges that the breach of any of the representations,  warranties and/or covenants by Tenant under this Section 25.21 shall be an immediate Default  67    under this Lease.    (e) Landlord represents, warrants, and covenants to Tenant that either (i)  Landlord is a Regulated Entity or (ii) neither Landlord nor any person or entity that directly or  indirectly (A) controls Landlord or (B) has a twenty-five percent (25%) or greater ownership  interest in  Landlord, appears on the OFAC List.    25.22 INSPECTION BY A CASP IN ACCORDANCE WITH CIVIL CODE SECTION 1938.    Landlord discloses that to Landlord’s knowledge, neither the Building nor the Premises  have undergone inspection by a Certified Access Specialist. Furthermore, pursuant to Section  1938 of the California Civil Code, Landlord notifies Tenant of the following: “A Certified Access  Specialist (CASp) can inspect the subject premises and determine whether the subject premises  comply with all of the applicable construction-related accessibility standards under state law.  Although California state law does not require a CASp inspection of the subject premises, the  commercial property owner or lessor may not prohibit the lessee or tenant from obtaining a CASp  inspection of the subject premises for the occupancy or potential occupancy of the lessee or tenant,  if requested by the lessee or tenant. The parties shall mutually agree on the arrangements for the  time and manner of any such CASp inspection, the payment of the costs and fees for the CASp  inspection and the cost of making any repairs necessary to correct violations of construction-  related accessibility standards within the Premises.” Tenant agrees that (a) Tenant may, at its  option and at its sole cost, cause a CASp to inspect the Premises and determine whether the  Premises complies with all of the applicable construction-related accessibility standards under  California law, (b) the parties shall mutually coordinate and reasonably approve of the timing of  any such CASp inspection so that Landlord may, at its option, have a representative present during  such inspection, and (c) Tenant shall be solely responsible for the cost of any repairs necessary to  correct violations of construction-related accessibility standards within the Premises and Building  identified by any such CASp inspection, any and all such alterations and repairs within the  Premises to be performed by Tenant shall be subject to Landlord’s consent and in accordance with  this Lease. Landlord and Tenant hereby agree that if Tenant elects to perform a CASp inspection  of the Premises, Tenant will provide written notice to Landlord, and Landlord may elect, in  Landlord’s sole discretion, to retain a CASp to perform the inspection. If Landlord does not so  elect, the time and manner of the CASp inspection is subject to the prior written approval of  Landlord. In either event, the payment of the fee for the CASp inspection shall be borne by Tenant.    25.23 COUNTERPARTS    This Lease may be executed in any number of counterparts, each of which shall be deemed  an original, but all of which, together, shall constitute one and the same instrument. Telecopied  signatures or signatures transmitted by electronic mail in so-called “pdf” format or via DocuSign  or similar electronic means, may be used in place of original signatures on this Lease. Landlord  and Tenant intend to be bound by the signatures on the telecopied or e-mailed document, are aware  that the other party will rely on the telecopied or e-mailed signatures, and hereby waive any  defenses to the enforcement of the terms of this Lease based on such telecopied or e-mailed  signatures. Promptly following request by either party, the other party shall provide the requesting  party with original signatures on this Lease.  





 






68    25.24 EXHIBITS AND RIDERS    All exhibits, riders and/or addenda referred to in this Lease as an exhibit, rider, or addenda  hereto, or attached hereto, are hereby incorporated into and made a part of this Lease.    [Signatures on Following Page]  69    IN WITNESS WHEREOF, this Lease has been executed as of the date set forth in Section  1.1 hereof.      LANDLORD: POINT RICHMOND R&D ASSOCIATES II, LLC,  a California limited liability company    By: Wareham-NZL, LLC, its Manager      By:    Richard K. Robbins  Its Manager    TENANT: SANGAMO THERAPEUTICS, INC.,  a Delaware corporation    By:   Name:   Title:       EXHIBIT A  OUTLINE OF PREMISES      00056744.17 A-1    EXHIBIT A-1  EMERGENCY GENERATOR SITE            00056744.17 A-1-1  





 






B-1    EXHIBIT B    WORK LETTER AGREEMENT  (Tenant Build / Allowance)    THIS WORK LETTER AGREEMENT (this “Work Agreement”) is attached to and made  a part of that certain Lease (the “Lease”) between POINT RICHMOND R&D ASSOCIATES II,  LLC (“Landlord”) and SANGAMO THERAPEUTICS, INC. (“Tenant”). All capitalized terms  used but not defined herein shall have the respective meanings given such terms in the Lease. This  Work Agreement sets forth the terms and conditions relating to the construction of Tenant Work  (defined below) in the Premises.    1. Allowance; Tenant Work.    (a) Allowance. Tenant shall be entitled to the Tenant Improvement Allowances set  forth in Section 1.1 of the Lease for the costs relating to the design, permitting and construction of  any of Tenant’s improvements to the Premises (collectively, the “Tenant Work”); provided,  however, notwithstanding anything in this Work Letter or the Lease to the contrary, the Suite D  Tenant Improvement Allowance may only be used for the costs associated with the Tenant Work  for Suite D (the “Suite D Tenant Work”).    In no event will Landlord be obligated to make disbursements pursuant to this Work  Agreement in a total amount which exceeds the Tenant Improvement Allowances. Tenant must  complete all Tenant Work and have submitted all Payment Request Supporting Documentation  (defined below) for such work no later than June 30, 2023, which date shall not be extended, even  if a portion of the Tenant Work is delayed because of a Force Majeure event.    (b) Tenant Improvement Allowance Items; Disbursement of Tenant Improvement  Allowances.    (i) Tenant Improvement Allowance Items. Except as otherwise set forth in this  Work Agreement, the Tenant Improvement Allowances shall be disbursed by Landlord only for  the following items and costs (collectively the “Tenant Improvement Allowance Items”):    (A) Payment of the fees of the Architect and the Building Consultants  (as those terms are defined below) and payment of fees and costs reasonably incurred by Landlord  for the review of the Construction Drawings (defined below) by Landlord or by Landlord’s third  party consultants;      Tenant Work;  (B) The payment of plan check, permit and license fees relating to the    (C) The cost of construction of the Tenant Work, including, without  limitation, after hours charges, testing and inspection costs, freight elevator usage, trash removal  costs, and contractors’ fees and general conditions;    (D) The cost of any changes to the Building when such changes are  required by the Construction Drawings, such cost to include all direct architectural and/or  engineering fees and expenses incurred in connection therewith;  B-2    (E) The cost of any changes to the Construction Drawings (defined  below) or Tenant Work required by applicable building codes (collectively, “Code”); and    (F) The Coordination Fee (defined below).    (ii) Disbursement of Tenant Improvement Allowances. During the design and  construction of the Tenant Work, Landlord shall make periodic disbursements of the Tenant  Improvement Allowances to reimburse Tenant for Tenant Improvement Allowance Items, as  follows:    (A) From time to time at the discretion of Tenant, Tenant shall deliver  to Landlord: (i) a request for payment from Tenant’s Contractor (defined below) approved by  Tenant, in a commercially reasonable form, including a schedule of values and showing the  percentage of completion, by trade, of the applicable Tenant Work; (ii) invoices from all of  Tenant’s Agents (defined below) for labor rendered and materials delivered to the Premises with  respect to the subject request for payment; and (iii) executed conditional mechanic’s lien releases  from the Contractor and subcontractors who have established the right to lien with respect to the  subject request for payment (along with unconditional mechanics’ lien releases with respect to  payments made pursuant to submissions made by Tenant hereunder more than sixty (60) days prior  to the subject request for payment) in compliance with all applicable laws (collectively, the  “Payment Request Supporting Documentation”). All Payment Request Supporting Documentation  shall clearly delineate which Tenant Improvement Allowance each payment request relates to.    (B) Within thirty (30) days after Tenant’s delivery to Landlord of  Payment Request Supporting Documentation, Landlord shall deliver to Tenant payment in an  amount equal to the lesser of: (x) the amount so requested by Tenant, as set forth above, less a ten  percent (10%) retention on amounts payable to the Contractor and subcontractors (the aggregate  amount of such retentions to be known as the “Final Retention”), and (y) the balance of any  remaining available portion of the applicable Tenant Improvement Allowances (not including the  Final Retention), provided that if Landlord, in good faith, disputes any item in a request for  payment based on non-compliance of any work with the Approved Working Drawings (defined  below) or due to any substandard work and delivers a written objection to such item setting forth  with reasonable particularity Landlord’s reasons for its dispute (a “Draw Dispute Notice”) within  ten (10) days following Tenant’s submission of its Payment Request Supporting Documentation,  Landlord may deduct the amount of such disputed item from the payment. Landlord and Tenant  shall, in good faith, endeavor to diligently resolve any such dispute. Landlord’s payment of such  amounts shall not be deemed Landlord’s approval or acceptance of the work furnished or materials  supplied as set forth in Tenant’s payment request.    (C) Subject to the provisions of this Work Agreement, following the  final completion of construction of the Tenant Work, Landlord shall deliver to Tenant a check  made payable to Tenant, or a check or checks made payable to another party or parties as  reasonably requested by Tenant, in the amount of the Final Retention, provided that (A) Tenant  delivers to Landlord properly executed unconditional mechanics’ lien releases from all of Tenant’s  Agents in compliance with all applicable laws, as reasonably determined by Landlord;  (B) Landlord has determined in good faith that no substandard work exists which adversely affects  the mechanical, electrical, plumbing, heating, ventilating and air conditioning, life-safety or other  systems of the Building, the curtain wall of the Building, the structure or exterior appearance of  the Building; (C) Architect delivers to Landlord a certificate, in a form reasonably acceptable to  B-3    Landlord, certifying that the construction of the Tenant Work has been finally completed;  (D) Tenant supplies Landlord with evidence that all governmental approvals required for an  occupant to legally occupy the Premises has been obtained; and (E) Tenant has complied with  Landlord’s standard “close-out” requirements regarding city approvals, closeout tasks, closeout  documentation regarding the general contractor, financial close-out matters, and Tenant’s vendors.    2. Construction Drawings    (a) Selection of Architect; Construction Drawings.    (i) Tenant shall retain an architect approved in writing, in advance by Landlord,  such approval not to be unreasonably withheld (the “Architect”) to prepare the Construction  Drawings. It is agreed that Dan McCauley of High Tech Construction Management and Design is  so approved. Tenant shall retain engineering consultants approved in writing, in advance by  Landlord, such approval not to be unreasonably withheld (the “Building Consultants”) to prepare  all plans and engineering working drawings and perform all work relating to mechanical, electrical  and plumbing (“MEP”), HVAC/Air Balancing, life-safety, structural, sprinkler and riser work.    (ii) The plans and drawings to be prepared by Architect and the Building  Consultants hereunder (i.e., both the Space Plan and the Working Drawings, as each term is  defined below) shall be known collectively as the “Construction Drawings.” All Construction  Drawings shall comply with the drawing format and specifications determined or approved by  Landlord and shall be subject to Landlord’s prior written approval, not to be unreasonably  withheld, conditioned or delayed. All MEP drawings must be fully engineered or prepared on a  “design-build-assist” basis with a Landlord-approved MEP basis of design (“BOD”), as prepared  by an approved MEP engineer consultant. The MEP drawings cannot be prepared on a strictly  “design-build” basis. Landlord’s review of the Construction Drawings shall be for its sole purpose  and shall not obligate Landlord to review the same, for quality, design, Code compliance or other  like matters. Accordingly, notwithstanding that any Construction Drawings are reviewed by  Landlord or its space planner, architect, engineers and consultants, and notwithstanding any advice  or assistance which may be rendered to Tenant by Landlord or Landlord’s space planner, architect,  engineers, and consultants, Landlord shall have no liability whatsoever in connection therewith  and shall not be responsible for any omissions or errors contained in the Construction Drawings.    (b) Space Plan. Tenant shall supply Landlord for Landlord’s review and approval with  four (4) copies signed by Tenant of its space plan for the Premises (“Space Plan”) before any  architectural working drawings or engineering drawings have been commenced. The Space Plan  shall include a layout and designation of all laboratory facilities, offices, rooms and other  partitioning, their intended use, and equipment to be contained therein. Landlord may request  clarification or more specific drawings for special use items not included in the Space Plan.  Landlord shall advise Tenant within ten (10) days after Landlord’s receipt of the Space Plan (or,  if applicable, such additional information requested by Landlord pursuant to the provisions of the  immediately preceding sentence) if the same is approved or is unsatisfactory or incomplete in any  respect. If Landlord disapproves the Space Plan, Landlord’s disapproval shall set forth with  reasonable particularity Landlord’s reasonable basis for such disapproval. If Landlord fails to so  respond to any request for approval of the Space Plan within such ten (10) day period, and such  failure continues for five (5) days following a second written notice to Landlord, then Landlord  shall be deemed to have approved the Space Plan. Upon any disapproval by Landlord, Tenant shall  promptly cause the Space Plan to be revised to correct any deficiencies identified in Landlord’s  B-4    disapproval and resubmit the revised Space Plan to Landlord. Landlord shall review the revised  Space Plan pursuant to the procedure set forth above; provided, however, Landlord shall only be  permitted to disapprove the revised Space Plan if it fails to address the basis for Landlord’s  disapproval of the previous Space Plan.    (c) Working Drawings. After the Space Plan has been approved by Landlord, Tenant  shall supply the Architect and the Building Consultants with a complete listing of standard and  non-standard equipment and specifications, including, without limitation, B.T.U. calculations,  electrical requirements and special electrical receptacle requirements, to enable the Architect and  the Building Consultants to complete the Working Drawings and shall cause the Architect and the  Engineers to promptly complete the architectural and engineering drawings, and Architect shall  compile a fully coordinated set of drawings, including but not limited to architectural, structural,  mechanical, electrical, plumbing, fire sprinkler and life safety in a form which is complete to allow  subcontractors to bid on the work and to obtain all applicable permits (collectively, the “Working  Drawings”) and shall submit the same to Landlord for Landlord’s review and approval. Tenant  shall supply Landlord with four (4) copies signed by Tenant of the Working Drawings. Landlord  shall advise Tenant within ten (10) business days after Landlord’s receipt of the Working Drawings  if Landlord, in good faith, determines that the same are approved or are unsatisfactory or  incomplete. If Landlord disapproves the Working Drawings, Landlord’s disapproval shall set forth  with reasonable particularity Landlord’s reasonable basis for such disapproval. If Landlord fails  to so respond to any request for approval of the Working Drawings within such ten (10) business  day period, and such failure continues for five (5) business days following a second written notice  to Landlord, then Landlord shall be deemed to have approved the Working Drawings. Upon any  disapproval by Landlord, Tenant shall promptly cause the Working Drawings to be revised to  correct any deficiencies identified in Landlord’s disapproval and resubmit the revised Working  Drawings to Landlord. Landlord shall review the revised Working Drawings pursuant to the  procedure set forth above. Landlord shall only be permitted to disapprove the revised Working  Drawing if they fail to address the basis for Landlord’s disapproval of the previous Working  Drawings or the revised Working Drawings contain a material error or omission.    (d) Landlord’s Approval. Tenant acknowledges that it shall be deemed reasonable for  Landlord to disapprove the Space Plan and any subsequent Working Drawings unless, at a  minimum, the same are prepared on the basis that the sprinkler systems shall be designed in  compliance with the specifications provided by FM Global. Additionally, Landlord’s approval of  any matter under this Work Agreement may be withheld if Landlord reasonably determines that  the same would violate any provision of the Lease or this Work Agreement or would adversely  affect the mechanical, electrical, plumbing, heating, ventilating and air conditioning, life-safety or  other systems of the Building, the curtain wall of the Building, the structure or exterior appearance  of the Building. The final Working Drawings, as approved by Landlord, are referred to herein as  the “Approved Working Drawings”.    3. Construction of the Tenant Work    (a) Tenant’s Selection of Contractors.    (i) The Contractor. Tenant shall retain a general contractor approved in  writing, in advance by Landlord, such approval not to be unreasonably withheld, to construct the  Tenant Work (“Contractor”). It is agreed by Landlord that Dome Construction is so approved.  





 






B-5    (ii) Tenant’s Agents. All subcontractors, laborers, materialmen, and suppliers  used by Tenant, along with the Contractor, shall be known collectively as “Tenant’s Agents”. All  of Tenant’s Agents shall be licensed in the State of California and capable of being bonded.  Notwithstanding anything herein to the contrary, in connection with Tenant’s construction of the  Tenant Work, any of Tenant’s Agents that are (A) to be reimbursed to Tenant through the Tenant  Improvement Allowances, and/or (B) involved in principal construction trades, shall be union-  affiliated and in compliance with all then existing master labor agreements.    (b) Construction of Tenant Work by Tenant’s Agents.    (i) Construction Contract. Within five (5) business days after Tenant’s  execution of the construction contract and general conditions with Contractor (the “Contract”),  Tenant shall provide a copy of the Contract to Landlord. Notwithstanding anything set forth herein  to the contrary, construction of the Tenant Work shall not commence until Tenant has procured  and delivered to Landlord a copy of all Permits for the applicable Tenant Work.    (ii) Construction Requirements.    (A) Landlord’s General Conditions for Tenant’s Agents and Tenant  Improvement Work. The Tenant Work shall be constructed in material accordance with the  Approved Working Drawings and Landlord’s construction guidelines, which are attached as  Schedule 1 to this Work Agreement (in the event of a conflict between the construction guidelines  and this Work Agreement, this Work Agreement shall control); and (2) Tenant shall abide by all  reasonable rules made by Landlord and provided to Tenant in writing, including with respect to  the use of contractor parking, materials delivery, freight and loading dock, any required shutdown  of utilities (including life-safety systems), storage of materials, coordination of work with the  contractors of Landlord, and any other matter in connection with this Work Agreement, including,  without limitation, the construction of the Tenant Work, provided that such rules do not materially  adversely affect construction of the Tenant Work. Tenant shall pay an oversight and supervisory  fee (the “Coordination Fee”) to Landlord in an amount equal to the following percentages based  upon the “hard costs” of the Tenant Work: (i) costs up to $1.5 million: 3%; (ii) portion of costs  over $1.5 million up to $2.5 million: 2%; and (iii) portion of costs over $2.5 million: 1.5%.    (B) Indemnity. Tenant’s indemnity of Landlord as set forth in the Lease  shall also apply with respect to any and all costs, losses, damages, injuries and liabilities related in  any way to any act or omission of Tenant or Tenant’s Agents, or anyone directly or indirectly  employed by any of them, or in connection with Tenant’s non-payment of any amount arising out  of the Tenant Work and/or Tenant’s disapproval of all or any portion of any request for payment.  Such indemnity by Tenant, as set forth in the Lease, shall also apply with respect to any and all  costs, losses, damages, injuries and liabilities related in any way to Landlord’s performance of any  ministerial acts reasonably necessary (1) to permit Tenant to complete the Tenant Work, and (2)  to enable Tenant to obtain any related building permit or certificate of occupancy.    (C) Requirements of Tenant’s Agents. The Contract shall include a  warranty to Tenant and for the benefit of Landlord that the portion of the Tenant Work covered by  the Contract shall be free from any defects in workmanship and materials for a period of not less  than one (1) year from the date of completion thereof. The Contractor shall be responsible for the  replacement or repair, without additional charge, of all work done or furnished in accordance with  its contract that shall become defective within one (1) year after the completion of the work  B-6    performed by such contractor or subcontractor. The correction of such work shall include, without  additional charge, all additional expenses and damages incurred in connection with the removal or  replacement of all or any part of the Tenant Work, and/or the Building and/or common areas that  are damaged or disturbed thereby. All such warranties or guarantees as to materials or  workmanship of or with respect to the Tenant Work shall be contained in the Contract and shall  be written such that such guarantees or warranties shall inure to the benefit of both Landlord and  Tenant, as their respective interests may appear, and can be directly enforced by either. Tenant  covenants to give to Landlord any assignment or other assurances as may be necessary to effect  such right of direct enforcement.    (iii) Insurance Requirements.    (A) General Coverages. The Contractor shall carry employer’s liability  and worker’s compensation insurance covering all of their respective employees, and shall also  carry commercial general liability insurance, including personal and bodily injury, property  damage and completed operations liability, all with limits, in form and with companies as are  required to be carried by Tenant as set forth in the Lease. All of Tenant’s Agents (other than  Contractor) shall carry employer’s liability of $1 million per occurrence; worker’s compensation  insurance covering all of their respective employees, up to the required statutory amount;  commercial general liability insurance, including personal and bodily injury, property damage and  completed operations liability, with limits of $1,000,000 per occurrence and $2,000,000 aggregate;  and umbrella/excess liability of $5,000,000 per occurrence and $5,000,000 aggregate.    (B) Special Coverages. Tenant or Contractor shall carry “Builder’s All  Risk” insurance in an amount approved by Landlord covering the construction of the Tenant Work,  it being understood and agreed that the Tenant Work shall be insured by Tenant pursuant to the  Lease immediately upon completion thereof. Such insurance shall be in amounts and shall include  such extended coverage endorsements as may be reasonably required by Landlord, and shall be in  form and with companies as are required to be carried by Tenant as set forth in the Lease.    (C) General Terms. Certificates for all of the foregoing insurance  coverage shall be delivered to Landlord before the commencement of construction of the Tenant  Work and before the Contractor’s equipment is moved onto the site. In the event that the Tenant  Work are damaged by any cause during the course of the construction thereof, Tenant shall  immediately repair the same at Tenant’s sole cost and expense. Tenant’s Agents shall maintain all  of the foregoing insurance coverage in force until the Tenant Work is fully completed and accepted  by Landlord, except for any Products and Completed Operations Coverage insurance required by  Landlord, which is to be maintained for one (1) year following completion of the work and  acceptance by Landlord and Tenant. All policies carried hereunder shall insure Landlord,  Wareham Property Group as Landlord’s manager, and Tenant, as their interests may appear, as  well as Tenant’s Agents. All insurance, except Workers’ Compensation, maintained by Tenant’s  Agents shall preclude subrogation claims by the insurer against anyone insured thereunder. Such  insurance shall provide that it is primary insurance as respects Landlord and Tenant and that any  other insurance maintained by Landlord or Tenant is excess and noncontributing with the insurance  required hereunder. The requirements for the foregoing insurance shall not derogate from the  provisions for indemnification of Landlord by Tenant under the Lease and/or this Work  Agreement.    (iv) Governmental Compliance. The Tenant Work shall comply in all respects  B-7    with the following: (A) the Code and other federal, state, city and/or quasi-governmental laws,  codes, ordinances and regulations, as each may apply according to the rulings of the controlling  public official, agent or other person or entity; (B) applicable standards of the American Insurance  Association (formerly, the National Board of Fire Underwriters) and the National Electrical Code;  and (C) building material manufacturer’s specifications.    (v) Inspection by Landlord. Prior to the completion of the Tenant Work,  Landlord shall have the right to inspect the same in accordance with the terms of the Lease,  provided however, that Landlord’s failure to inspect the Tenant Work shall in no event constitute  a waiver of any of Landlord’s rights hereunder nor shall Landlord’s inspection of the Tenant Work  constitute Landlord’s approval of the same. Should Landlord reasonably disapprove any portion  of the Tenant Work, Landlord shall notify Tenant in writing of such disapproval and shall specify  the items disapproved and the basis for such disapproval. Landlord may only disapprove any  portion of the Tenant Work if it fails to comply with the Approved Working Drawings or the terms  of this Work Letter. In the event Landlord determines that a defect or deviation exists or  disapproves of any matter in connection with any portion of the Tenant Work in accordance with  this Section and such defect, deviation or matter is reasonably likely to adversely affect the  mechanical, electrical, plumbing, heating, ventilating and air conditioning or life-safety systems  of the Building, the structure or exterior appearance of the Building or any other tenant’s use of  such other tenant’s leased premises, Landlord may take such action as Landlord deems necessary,  at Tenant’s expense and without incurring any liability on Landlord’s part, to correct any such  defect, deviation and/or matter, including, without limitation, causing the cessation of performance  of the construction of the Tenant Work until such time as the defect, deviation and/or matter is  corrected to Landlord’s satisfaction.    (vi) Meetings. Tenant shall hold periodic meetings at a reasonable time with the  Architect and the Contractor regarding the progress of the preparation of the Construction  Drawings and the construction of the Tenant Work, which meetings shall be held at a location  reasonably approved by Landlord, and Landlord and/or its agents shall receive prior written notice  of, and shall have the right to attend, all such meetings. Upon Landlord’s request, Tenant shall  use reasonable efforts to cause certain of Tenant’s Agents shall attend such meetings. In addition,  minutes shall be taken at all such meetings, and Landlord will be included in the distribution list  for such minutes. One such meeting each month shall include the review of Contractor’s current  request for payment.    (c) Notice of Completion; Copy of Record Set of Plans. Within thirty (30) days after  completion of construction of the Tenant Work, Tenant shall cause a Notice of Completion to be  recorded in the office of the Recorder of Contra Costa County and shall furnish a copy thereof to  Landlord upon such recordation, and shall timely give all notices required pursuant to the  California Civil Code. If Tenant fails to do so, Landlord may execute and file such Notice of  Completion and give such notices on behalf of Tenant as Tenant’s agent for such purpose, at  Tenant’s sole cost and expense. Within thirty (30) days following the completion of construction,  (i) Tenant shall cause the Architect or Contractor (A) to update the Approved Working Drawings  as necessary to reflect all changes made to the Approved Working Drawings during the course of  construction, and (B) to deliver to Landlord such updated drawings in accordance with Landlord’s  then-current CAD requirements, and (ii) Tenant shall deliver to Landlord a copy of all warranties,  guaranties, and operating manuals and information relating to the improvements, equipment, and  systems in the Premises. Tenant’s obligations set forth in this Section are collectively referred to  as the “Completion Obligations.”  B-8    4. Miscellaneous.    (a) Tenant’s Representative. Tenant has designated Katie Cary as its sole  representative with respect to the matters set forth in this Work Agreement, until further notice to  Landlord, who shall have full authority and responsibility to act on behalf of Tenant as required in  this Work Agreement.    (b) Landlord’s Representative. Landlord has designated Lisa Vogel as its sole  representative with respect to the matters set forth in this Work Agreement, who, until further  notice to Tenant, shall have full authority and responsibility to act on behalf of Landlord as  required in this Work Agreement.    (c) Tenant’s Default. Notwithstanding any provision to the contrary contained in the  Lease, if a Default by Tenant under the Lease (including, without limitation, this Work Agreement)  has occurred at any time on or before the substantial completion of the Tenant Work, then (i) in  addition to all other rights and remedies granted to Landlord pursuant to the Lease, Landlord shall  have the right to withhold payment of all or any portion of the Tenant Improvement Allowances,  and (ii) all other obligations of Landlord under the terms of this Work Agreement shall be forgiven  until such time as such default is cured pursuant to the terms of the Lease.  





 






B-9    Schedule 1 to Exhibit B  Construction Guidelines      B-10      B-11      B-12        





 






B-13        B-14        B-15        B-16        





 






B-17        B-18      B-19                                   00056744.17 B-20  





 






   EXHIBIT C-1  LABORATORY RULES AND REGULATIONS  1. Any laboratory equipment (glass and cage washers, sterilizers, centrifuges, etc.)  being used during Standard Operating Hours must be properly insulated for noise to prevent  interruption of other tenants’ business. Should other tenants complain of noise, the laboratory  tenant will be responsible for abating any commercially unreasonable noise issues, at the  laboratory tenant’s sole cost.    2. Any damages to property due to leaks from laboratory equipment will be the sole  responsibility of the laboratory tenant. Should damage occur in other tenant spaces, any and all  damages and clean-up will be the responsibility of the laboratory tenant.    3. Animal activities are a recognized and necessary process in the biotech industry.  Such activities may only be conducted by laboratory tenants pursuant to all the requirements of  their respective lease (including any “Use” clause) and require specific, written approval by  Landlord in advance. Any animal activities shall be conducted pursuant to all regulations,  standards and best industry practices relating to them.    4. The Project is a mixed-use facility, and laboratory tenants share space with office  tenants. To reduce the potential interaction with office tenants and their employees and visitors  with any biotech animal operations, any animal testing performed, any deliveries of animals and  any equipment, foods, cleaners, etc. associated with animal activities, must be coordinated through  the loading dock after hours and with the cooperation of the building management and security  personnel. The laboratory tenant should make every effort to handle any deliveries relating to  animal activities outside of Standard Operating Hours. No cartons, containers or cardboard boxes  bearing the nature of contents may be stored or left in common area spaces, including any  garage/freight areas. Feed bags, animal carriers, and any and all other related containers must be  disposed of properly and with discretion.    5. All exterior signage relating to laboratory operations (i.e., visible to common areas,  including corridors) must be kept to the minimum required by Laws. All signs must have  Landlord’s approval prior to installation.                                       C-1-1  C-2-1    EXHIBIT C-2    RULES AND REGULATIONS    1. No sidewalks, entrance, passages, courts, elevators, vestibules, stairways, corridors  or halls shall be obstructed or encumbered by Tenant or used for any purpose other than ingress  and egress to and from the Premises and if the Premises are situated on the ground floor of the  Project, Tenant shall further, at Tenant’s own expense, keep the sidewalks and curb directly in  front of the Premises clean and free from rubbish.    2. No new awning or other projection shall be attached to the outside walls or  windows of the Project without the prior written consent of Landlord. Such awnings, projections,  curtains, blinds, shades, drapes, screens and other fixtures must be of a quality, type, design, color,  material and general appearance approved by Landlord, and shall be attached in the manner  approved by Landlord.    3. No new sign, advertisement, notice, lettering, decoration or other thing shall be  exhibited, inscribed, painted or affixed by Tenant on any part of the outside of the Premises or of  the Project, without the prior written consent of Landlord, which consent shall not be unreasonable  withheld, conditioned, or delayed. All signage of Tenant existing as of the date of the Lease is  hereby approved by Landlord. In the event of the violation of the foregoing by Tenant, Landlord  may remove same without any liability, and may charge the expense incurred by such removal to  Tenant.    4. The sashes, sash doors, skylights, windows and doors that reflect or admit light or  air into the halls, passageways or other public places in the Project shall not be covered or  materially obstructed by Tenant.    5. No showcases or other articles shall be put in front of or affixed to any part of the  exterior of the Project, nor placed in public portions thereof without the prior written consent of  Landlord.    6. The water and wash closets and other plumbing fixtures shall not be used for any  purposes other than those for which they were constructed, and no sweepings, rubbish, rags or  other substances shall be thrown therein. All damages resulting from any misuse of the fixtures  shall be borne by Tenant to the extent that Tenant or Tenant’s agents, servants, employees,  contractors, visitors or licensees shall have caused the same.    7. Tenant shall not mark, paint, drill into or in any way deface any part of the Premises  or the Project. No boring, cutting or stringing of wires shall be permitted, except with the prior  written consent of Landlord, and as Landlord may direct.    8. No animal or bird of any kind shall be brought into or kept in or about the Premises  or the Project, except dogs that qualify as “service animals” under the ADA.    9. Tenant shall cooperate with Landlord’s efforts to implement the Project’s  Sustainability Practices, including, but not limited to, complying with Landlord’s then-current  C-2-2    energy saving efforts and participating in any recycling programs and occupant satisfaction and  transportation surveys.    10. (Reserved)    11. Tenant shall regularly conduct cleaning and janitorial activities, especially in  bathrooms, kitchens and janitorial spaces, to remove mildew and prevent moist conditions and  shall comply with the Project’s Sustainability Practices, if any.    12. Tenant shall not make, or permit to be made, any unseemly or disturbing noises or  disturb or interfere with occupants of the Project, or neighboring buildings or premises, or those  having business with them. Tenant shall not throw anything out of the doors, windows or skylights  or down the passageways.    13. Except in the ordinary course of Tenant’s business as a laboratory, neither Tenant  nor any of Tenant’s agents, servants, employees, contractors, visitors or licensees shall at any time  bring or keep upon the Premises any flammable, combustible or explosive fluid, chemical or  substance.    14. No additional locks, bolts or mail slots of any kind shall be placed upon any of the  doors or windows by Tenant, nor shall any change be made in existing locks or the mechanism  thereof without Landlord’s prior written consent. Tenant must, upon the termination of the  tenancy, restore to Landlord all keys of stores, offices and toilet rooms, either furnished to, or  otherwise procured by Tenant, and in the event of the loss of any keys so furnished, Tenant shall  pay to Landlord the cost thereof.    15. All removals, or the carrying in or out of any safes, freight, furniture, construction  material, bulky matter or heavy equipment of any description must take place during the hours  which Landlord or its agent may determine from time to time. Landlord reserves the right to  prescribe the weight and position of all safes, which must be placed upon two-inch thick plank  strips to distribute the weight. The moving of safes, freight, furniture, fixtures, bulky matter or  heavy equipment of any kind must be made upon previous notice to the Building Manager and in  a manner and at times prescribed by the Building Manager, and the persons employed by Tenant  for such work are subject to Landlord’s prior approval. Landlord reserves the right to inspect all  safes, freight or other bulky articles to be brought into the Project and to exclude from the Project  all safes, freight or other bulky articles which exceed the load bearing capacity of the floors of the  Building or which violate any of these Rules and Regulations or the Lease of which these Rules  and Regulations are a part.    16. Tenant shall not purchase janitorial or maintenance or other like service from any  company or persons not approved by Landlord. Landlord shall approve a sufficient number of  sources of such services to provide Tenant with a reasonable selection, but only in such instances  and to such extent as Landlord in its judgment shall consider consistent with security and proper  operation of the Project. Notwithstanding the foregoing, Landlord hereby approves all janitorial  and maintenance service providers which Tenant contracts with as of the date of this Lease.    17. Landlord shall have the right to prohibit any advertising or business conducted by  Tenant referring to the Project which, in Landlord’s reasonable opinion, tends to impair the  C-2-3    reputation of the Project or its desirability for offices and/or commercial services and upon notice  from Landlord, Tenant shall refrain from or discontinue such advertising.    18. Landlord reserves the right to exclude from the Project between the hours of  6:00 p.m. and 8:00 a.m. Monday through Friday, after 1:00 p.m. on Saturdays and at all hours  Sundays and legal holidays, all persons who do not present a pass to the Project issued by Landlord.  Landlord may furnish passes to Tenant so that Tenant may validate and issue same. Tenant shall  safeguard said passes and shall be responsible for all acts of persons in or about the Project who  possess a pass issued to Tenant.    19. Except with regard to Tenant’s Agents (as defined in the Work Letter), Tenant’s  vendors and contractors shall, while in the Premises or elsewhere in the Project, be subject to and  under the control and direction of the Building Manager (but not as agent or servant of said  Building Manager or of Landlord) and, prior to commencing any work, shall be required to  maintain and provide copies of such insurance coverage as is required of Tenant’s Agents under  the Work Letter.    20. If the Premises is or becomes infested with vermin as a result of the use or any  misuse or neglect of the Premises by Tenant, its agents, servants, employees, contractors, visitors  or licensees, Tenant shall forthwith at Tenant’s expense cause the same to be exterminated from  time to time to the satisfaction of Landlord and shall employ such licensed exterminators as shall  be approved in writing in advance by Landlord.    21. The requirements of Tenant will be attended to only upon application at the office  of the Project. Project personnel shall not perform any work or do anything outside of their regular  duties unless under special instructions from the office of Landlord.    22. Canvassing, soliciting and peddling in the Project are prohibited and Tenant shall  cooperate to prevent the same.    23. No water cooler, air conditioning unit or system or other apparatus shall be installed  or used by Tenant without the written consent of Landlord.    24. There shall not be used in any premises, or in the public halls, plaza areas, lobbies,  or elsewhere in the Project, either by Tenant, Tenant’s contractors or others, in the delivery or  receipt of merchandise, any hand trucks or dollies, except those equipped with rubber tires and  sideguards.    25. Tenant, Tenant’s agents, servants, employees, contractors, licensees, or visitors  shall not park any vehicles in any driveways, service entrances, or areas posted “No Parking” and  shall comply with any other parking restrictions imposed by Landlord from time to time.    26. Tenant shall install and maintain, at Tenant’s sole cost and expense, an adequate  visibly marked (at all times properly operational) fire extinguisher next to any duplicating or  photocopying machine or similar heat producing equipment, which may or may not contain  combustible material, in the Premises.    27. (Reserved)  





 






C-2-4    28. Tenant shall not use the name of the Project for any purpose other than as the  address of the business to be conducted by Tenant in the Premises, nor shall Tenant use any picture  of the Project in its advertising, stationery or in any other manner without the prior written  permission of Landlord. Landlord expressly reserves the right at any time to change said name  without in any manner being liable to Tenant therefor.    29. Tenant shall not prepare any food nor do any cooking, operate or conduct any  restaurant, luncheonette or cafeteria for the sale of food or beverages to its employees or to others,  except that food and beverage preparation by Tenant’s employees using microwave ovens or  coffee makers shall be permitted provided no odors of cooking or other processes emanate from  the Premises.    30. The Premises shall not be used as an employment agency, a public stenographer or  typist, a labor union office, a physician’s or dentist’s office, a dance or music studio, a school, a  beauty salon, or barber shop, the business of photographic reproductions or offset printing, a  restaurant or bar, an establishment for the sale of confectionery, soda, beverages, sandwiches, ice  cream or baked goods, an establishment for preparing, dispensing or consumption of food or  beverages of any kind in any manner whatsoever, or news or cigar stand, or a radio, television or  recording studio, theatre or exhibition hall, or manufacturing, or the storage or sale of merchandise,  goods, services or property of any kind at wholesale, retail or auction, or for lodging, sleeping or  for any immoral purposes.    31. Business machines and mechanical equipment shall be placed and maintained by  Tenant at Tenant’s expense in settings sufficient in Landlord’s reasonable judgment to absorb and  prevent vibration, noise and annoyance. Tenant shall not install any machine or equipment which  causes noise, heat, cold or vibration to be transmitted to the structure of the building in which the  Premises are located without Landlord’s prior written consent, which consent may be conditioned  on such terms as Landlord may reasonably require. Tenant shall not place a load upon any floor  of the Premises exceeding the floor load per square foot that such floor was designed to carry and  which is allowed by Law.    32. Tenant shall not bring any Hazardous Materials onto the Premises except for those  that (i) are in general commercial use and are incidental to Tenant’s business office operations and  only in quantities suitable for immediate use, or (ii) are required in connection with Tenant’s  laboratory use of the Premises.    33. Tenant shall not store any vehicle within the parking area. Tenant’s parking rights  are limited to the use of parking spaces for short-term parking, of up to twenty-four (24) hours, of  vehicles utilized in the normal and regular daily travel to and from the Project. Tenants who wish  to park a vehicle for longer than a 24-hour period shall notify the Building Manager for the Project  and consent to such long-term parking may be granted for periods up to two (2) weeks. Any motor  vehicles parked without the prior written consent of the Building Manager for the Project for longer  than a 24-hour period shall be deemed stored in violation of this rule and regulation and shall be  towed away and stored at the owner’s expense or disposed of as provided by Law.    34. Smoking is prohibited in the Premises, the Building and all enclosed Common  Areas of the Project, including all lobbies, all hallways, all elevators and all lavatories. “Smoking”,      as used herein, shall be deemed to include the use of e-cigarettes, smokeless cigarettes and other  similar products. All rules and regulations set forth in this Exhibit C applicable to smoking also  apply to the use of e-cigarettes, smokeless cigarettes and other similar products.    35. Tenant shall not store any items within 18 inches of a sprinkler head.    36. Building ladders including fixed ladders are not to be used by Tenant, Tenant’s  agents, servants, employees, contractors, licensees or visitors.    37. Electrical power strips (other than those used with standard office desktop computer  equipment) and portable “space heaters” are not permitted.    38. Tenants are not permitted to open an electrical panel. Tenants are required to  contact Landlord to reset a circuit breaker.    39. Tenant shall reimburse Landlord for the cost (plus an administrative charge at  Landlord’s then prevailing rate) of Landlord providing any special services or work requested by  Tenant to the extent such services or work are not specifically set forth as a Landlord obligation in  the Lease.                                                                           C-2-5  D-1             After recording, please return to:  Wendy Harlan, Esq.  EXHIBIT D  FORM OF SNDA  Investments, Mortgages and Real Estate Division  Unum Life Insurance Company of America  2211 Congress Street, B268  Portland, Maine 04122-0590  Loan No. 100013262    SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT  THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT  AGREEMENT (this “Agreement”) is made as of the day of , 2021, by and  among POINT RICHMOND R&D ASSOCIATES II, LLC, a California limited liability company  with a mailing address of      (“Landlord”), SANGAMO  THERAPEUTICS, INC., a Delaware corporation, with a mailing address of 7000 Marina Blvd.,  Brisbane, CA 94005 (“Tenant”), and Unum Life Insurance Company of America, a Maine  corporation, with a mailing address of 2211 Congress Street, B268, Portland, ME 04122  (“Lender”).    RECITALS:    WHEREAS, Landlord is the owner and holder of fee simple title in and to the real property  (the “Property”) situated in Richmond, California and described in Exhibit A attached hereto and  by this reference made a part hereof; and    WHEREAS, Landlord and Tenant have entered into that certain Amended and Restated  Office/Laboratory Lease dated (the “Lease”) whereby Tenant is  leasing from Landlord a part of the Property (the “Leased Premises”); and    WHEREAS, Lender made a loan to Landlord, in the principal amount of $14,000,000.00  secured by a Deed of Trust, Security Agreement and Fixture Filing dated as of December 15, 2016  and recorded as Document No. 2016-0272513-00 in the real estate records for Contra Costa  County, California. (as amended, replaced, extended, renewed, restated, or otherwise modified in  writing from time to time, the “Security Instrument”), placing a first lien on the Property (the  “Loan”); and    WHEREAS, the Lease is assigned by Landlord to Lender by an Assignment of Rents,  Leases and Other Benefits dated as of December 15, 2016, from the Borrower to the Lender,  recorded as Document No. 2016-0272514-00 in the real estate records for Contra Costa County,  California (as amended, replaced, extended, renewed, restated, or otherwise modified in writing  from time to time, the “Assignment”); and  D-2       WHEREAS, Tenant has requested Lender and Landlord to enter into this Agreement.    NOW, THEREFORE, in consideration of the mutual promises herein contained and other  good and valuable consideration, the receipt and sufficiency whereof are hereby acknowledged,  Tenant, Landlord, and Lender, intending to be legally bound, covenant and agree as follows:    1. Subject to the terms of this Agreement, the Lease and Tenant’s leasehold estate  created thereby, including all rights and options to purchase the Leased Premises, if any, shall be  and are subject and subordinate to the lien of the Security Instrument and to all the terms,  conditions and provisions thereof, to all advances made or to be made thereunder, and to any  renewals, extensions, modifications or replacements thereof, provided, however, that at any time  hereafter, at the election of the Lender, Lender shall have the right to declare the Lease superior to  the lien, provisions, operation and effect of the Security Instrument.    2. Subject to the terms of this Agreement, if Lender or any person or entity obtains  title to the Leased Premises through foreclosure or deed in lieu of foreclosure under the Security  Instrument (each a “Successor Landlord”), Tenant shall recognize and attorn to the Successor  Landlord, its successors and assigns, to the same extent and with the same force as if Successor  Landlord were the Landlord under the Lease. So long as Tenant is not in default under any  provision to the Lease beyond any applicable notice or cure period, such that Landlord would be  entitled to terminate the Lease, then (a) the right of possession of Tenant to the Leased Premises  shall not be affected or disturbed, and (b) the Lease shall remain in full force and effect according  to its terms. Tenant shall be bound to Successor Landlord and Successor Landlord shall be bound  to Tenant under the terms of the Lease, and any extensions and renewals thereof, with the same  force and effect as if Successor Landlord was the original landlord under the Lease.    3. By virtue of the Assignment, Lender shall be entitled, but not obligated, to exercise  the claims, rights, powers, privileges, options and remedies of the Landlord under the Lease and  shall be further entitled to the benefits of, and to receive and enforce performance of, all of the  covenants to be performed by Tenant under the Lease as though Lender were named therein as the  Landlord.    4. Lender shall not, by virtue of the Assignment or this Agreement, be or become  subject to any liability or obligation to Tenant under the Lease or otherwise, until Lender shall  have obtained title to the Leased Premises, by foreclosure or otherwise. Notwithstanding anything  to the contrary in the Lease, the Successor Landlord shall not be liable for or bound by any of the  following matters if Successor Landlord succeeds to the interest of Landlord under the Lease:    (i) any default or breach of the Lease by Landlord or any prior lessor except to  the extent a non-monetary default or breach is continuing after the date Successor Landlord  succeeds to the interest of Landlord under the Lease, provided that Lender received written notice  of such default or breach prior to commencing the action to obtain title to the Property; or    (ii) any offsets or defenses which Tenant might have against Landlord or any  prior lessor arising from a default or breach of the Lease by Landlord or any prior lessor (except  those expressly permitted by the Lease, including abatement rights); or  





 






D-3         (iii) any representations, warranties or indemnities made by Landlord or any  prior lessor under the Lease to the extent the same relate to actions or events occurring prior to the  date Successor Landlord succeeded to the interest of Landlord under the Lease; or    (iv) any amount in excess of the value of Lender’s interest in the Property and/or  interest in the proceeds from the Property (including a sale or financing thereof); or    (v) Security deposits or other refundable fees, unless paid over to Lender.    5. In the event of a default by Landlord under the Lease, Lender shall have the right  (but not the obligation) to cure Landlord’s defaults within the longer of (i) the time required for  Landlord to cure the default under the Lease (if any), or (ii) thirty (30) days after receipt of written  notice from Tenant of the default; provided, however, that the thirty (30) day period shall be  extended by up to an additional sixty (60) days if the nature of such default is such that the default  cannot be cured within the initial thirty (30) days, so long as within the initial thirty (30) day period  Lender has commenced and is diligently pursuing the remedies necessary to cure such default.    6. Tenant shall not pay an installment of rent or any part thereof more than one month  prior to the due date of such installment, and Lender shall be entitled to recover from Tenant as  rent under the Lease any payment of rent or additional rent made by Tenant to Landlord for more  than one month in advance. Lender shall not be bound or affected by any amendment or  modification or assignment or sublease of the Lease that reduces the rent or shorten the term, or to  adversely affects in any other respect to any material extent the rights of Landlord, nor shall this  the Lease be canceled or surrendered (except as expressly permitted by the Lease), without the  prior written consent, in each instance, of Lender. In the event consent to cancelation or surrender  is given, Tenant shall deliver the buyout monies, if any, in full to Lender.    7. Reserved.    8. To the extent permitted by law, Tenant and Landlord agree that Lender shall be  entitled to all payments made by Tenant under the federal Bankruptcy Code (and/or similar state  creditor’s rights law) as the result of Tenant rejecting the Lease. Such lease rejection payments  shall be made by Tenant directly to Lender, which shall deposit the payments into an escrow  account to be used for the operation and benefit of the Property.    9. After notice is given to Tenant by Lender, pursuant to the Assignment, that the  rentals under the Lease should be paid to Lender, Tenant shall pay to Lender, or to its agent in  accordance with the directions of Lender, all rentals and other monies due and to become due to  the Landlord under the Lease, and Landlord hereby irrevocably authorizes Tenant to make such  payment to Lender, or to its agent in accordance with the directions of Lender, and hereby releases  and discharges Tenant of, and from any liability to Landlord on account of any such payments.    10. Each notice, demand, election or request provided for or permitted to be given  pursuant to this Agreement must be in writing and shall be deemed to have been properly given or  served by personal delivery or by sending the same by overnight courier or by depositing the same  D-4       in the United States Mail, postpaid and certified, return receipt requested, to the address set forth  in the preamble of this Agreement for the party to whom such notice, demand, election or request  is intended.    11. This Agreement shall inure to the benefit of and shall be binding upon Tenant,  Landlord and Lender, and their respective heirs, personal representatives, successors and assigns.  In the event any one or more of the provisions contained in this Agreement shall for any reason be  held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or  unenforceability shall, at the option of Lender, not affect any other provisions of this Agreement,  but this Agreement shall be construed as if such invalid, illegal or unenforceable provision had  never been contained herein. This Agreement shall be governed by and construed according to the  laws of the State of California. Lender, Landlord and Tenant irrevocably, as an independent  covenant, waive the right to jury trial in any action or proceeding in connection with this  Agreement.    12. This Agreement may be executed in two or more counterparts, each of which  (including those signed electronically) shall be deemed an original, but all of which together shall  constitute one and the same instrument.      REMAINDER OF PAGE INTENTIONALLY BLANK  SIGNATURE PAGES FOLLOW  D-5       IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly  executed the day and year first above written.      WITNESS: TENANT:    SANGAMO THERAPEUTICS, INC.      By:     Name: Name:     Title:           STATE OF     COUNTY OF , ss   , 20      Then personally appeared the above-named and acknowledged the  foregoing instrument to be his/her free act and deed, in his/her said capacity, and the free act and  deed of said .        Notary Public  D-6       WITNESS: LANDLORD:    POINT RICHMOND R&D ASSOCIATES  II, LLC    By:     Name: Name:     Title:             STATE OF     COUNTY OF , ss   , 20      Then personally appeared the above-named and acknowledged the  foregoing instrument to be his/her free act and deed, in his/her said capacity, and the free act and  deed of said .        Notary Public  





 






D-7       WITNESS: LENDER:    UNUM LIFE INSURANCE COMPANY OF  AMERICA    By:     Name: Name:     Title:             STATE OF MAINE  COUNTY OF CUMBERLAND, ss   , 20      Then personally appeared the above-named and  acknowledged the foregoing instrument to be his/her free act and deed, in his/her said capacity,  and the free act and deed of said corporation.        Notary Public  D-8       EXHIBIT A    Legal Description of Property