Exhibit
10.1


EXECUTION VERSION


LEASE


by and between


BMR-3200 Walnut Street LLC,


a Delaware limited liability company]


and


Array BioPharma Inc.,


a Delaware corporation















 


LEASE


 


THIS LEASE (this “Lease”) is entered into as of this         day
of             , 2006,
by and between BMR-3200 Walnut Street LLC, a Delaware limited liability company
(“Landlord”), and Array BioPharma Inc., a Delaware corporation (“Tenant”).


RECITALS 


WHEREAS, Landlord owns certain real property (the “Property”)
and the building improvements thereon located at 1885 33rd Street, 1825 33rd Street, 1865
33rd Street and 3200 Walnut Street, Boulder
Colorado, including the buildings located thereon (the “Building”) in
which the Premises (as defined below) are located; and


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


AGREEMENT 


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


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


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


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


2.2.          Rentable
Area of the Premises:  149,984 sq. ft.,
subject to adjustment pursuant to the terms hereof


2.3.          Initial
Monthly Rental Installments of Basic Annual Rent:  149,984 s.f. x $30.00 per s.f. / 12 =
$374,960, subject to adjustment pursuant to the terms hereof


2.4.          Initial
Basic Annual Rent: 149,984 s.f. x $30.00 per s.f. = $4,499,520, subject to
adjustment pursuant to the terms hereof


2.5.          Term
Commencement Date:                                ,
2006


2.6.          Term
Expiration Date:                                         ,
2016


2.7.          Security
Deposit: $4,499,520


2.8.          Permitted
Use:  General office and laboratory use
in conformity with Applicable Laws (as defined below)


2.9.          Address
for Rent Payment: BMR-3200 Walnut Street LLC, c/o BioMed Realty, L.P., 17190
Bernardo Center Drive, Suite 222, San Diego, California 92128, Attn:  Karen Sztraicher.


2.10.        Address for
Notices to Landlord: BMR-3200 Walnut Street LLC, c/o BioMed Realty, L.P., 17190
Bernardo Center Drive, Suite 222, San Diego, California 92128, Attn: General
Counsel



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2.11.        Address for
Notices to Tenant: Array BioPharma Inc., 3200 Walnut Street, Boulder Colorado
80301, Attn: John Moore


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


	
   

  	
  Exhibit A

  	
  Premises

  
	
   

  	
  Exhibit B

  	
  Acknowledgement
  of Term Commencement Date and Term Expiration Date

  
	
   

  	
  Exhibit C

  	
  Tenant’s
  Personal Property

  
	
   

  	
  Exhibit D

  	
  Rules and
  Regulations

  
	
   

  	
  Exhibit E

  	
  Form of Estoppel
  Certificate

  
	
   

  	
  Exhibit F

  	
  Nonfunctional
  Equipment

  



 


3.             Term.


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


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


4.             Tenant
Improvements.


4.1           Prior
to entering upon the Premises, Tenant shall furnish to Landlord evidence
satisfactory to Landlord that insurance coverages required of Tenant under the
provisions of Section 20 are in effect, and such entry shall be subject
to all the terms and conditions of this Lease other than the payment of Basic
Annual Rent or Additional Rent (as defined below).


4.2           Tenant
hereby acknowledges that Tenant knows the condition of the Premises and agrees
to accept the same in “as is” condition. 
It is understood and agreed that Landlord is not obligated to install
any equipment, or make any repairs, improvements or alterations to the
Premises.  Tenant shall have the right to
make appropriate repairs and improvements to the Premises in accordance with
the terms and conditions of Section 17 hereof (“Tenant Improvements”).
Tenant shall be responsible for performing and completing the Tenant
Improvements.  Upon the Term Commencement
Date, Landlord shall pay to Tenant a tenant improvement allowance (“Tenant
Improvement Allowance”) in the amount of $1,700,000.00 to cover the
reasonable cost of constructing Tenant’s Tenant Improvements to the Premises
and related fees and expenses, including, but not limited to, labor, materials,
space planning, construction documents, permits, fees, construction management,
etc, as such costs may be demonstrated by Tenant to the reasonable satisfaction
of Landlord.  All improvements shall be
subject to the requirements of the Lease with respect to alternations and to
building standards for finishes and materials. 
Any direct or indirect Tenant Improvement costs that exceed the Tenant
Improvement Allowance shall be paid by Tenant. 
Tenant shall pay to Landlord as Additional Rent the Tenant Improvement
Allowance, together with interest thereon at the rate of ten and one-half
percent (10.5%) per annum, which amount shall be amortized over the original
Term of the Lease and shall be due and payable in equal monthly installments of
Twenty-Two Thousand Seven Hundred Thirty-Nine and 97/100 Dollars ($22,739.97)
per month when Basic Monthly Rent is due and payable under the Lease


4.3           Landlord
and Tenant shall mutually agree upon the selection of the architect, engineer,
general contractor and major subcontractors, and Landlord and Tenant shall each
participate in the review of the competitive bid process.


5.             Rent.


5.1.          Tenant
shall pay to Landlord as Basic Annual Rent for the Premises, commencing on the
Term Commencement Date, the sum set forth in Section 2.4, subject to the
rental adjustments provided in Section 6 hereof. Basic Annual
Rent shall be paid in equal monthly installments as set forth in Section 2.3
(“Basic Monthly Rent”), subject to the rental adjustments provided in Section 6
hereof, each in advance on the first day of each and every calendar month
during the Term.



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


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


6.             Rent
Adjustments. The Basic Annual Rent
shall be subject to an annual upward adjustment of two percent (2%) of the
then-current Basic Annual Rent.  The
first such adjustment shall become effective commencing July 1, 2007, and
subsequent adjustments shall become effective on every successive July 1 for so
long as this Lease continues in effect.


7.             Taxes.


7.1.          Commencing with
the Term Commencement Date and continuing for each calendar year or, at
Landlord’s option, tax year (each such “tax year” being a period of twelve (12)
consecutive calendar months for which the applicable taxing authority levies or
assesses Taxes), for the balance of the Term, Tenant shall pay to Landlord the
amount of all Taxes levied and assessed for any such year upon the Premises
during the Term.  “Taxes” shall
mean all government impositions including, without limitation, property tax
costs consisting of real and personal property taxes and assessments (including
amounts due under any improvement bond upon the Premises or any portion
thereof, including the parcel or parcels of real property upon which the
Building is located or assessments levied in lieu thereof) imposed by any
federal, state, regional, local or municipal governmental authority, agency or
subdivision (each, a “Governmental Authority”) on the Premises or
improvements thereon, any tax on or measured by gross rentals received from the
rental of space in the Building, or tax based on the square footage of the
Premises or the Building as well as any parking charges, utilities surcharges,
or any other costs levied, assessed or imposed by, or at the direction of, or
resulting from statutes or regulations, or interpretations thereof, promulgated
by any Governmental Authority in connection with the use or occupancy of the
Premises or the parking facilities serving the Premises; any tax on this
transaction or this Lease; provided, however, that “Taxes” shall
in no event include any franchise or income tax or any tax based on net rentals
received from the rental of space in the Building. Any amount paid by Tenant
for any partial year of the Term shall be prorated on the basis of the number
of days of such partial year.  Payment
shall be made in the following manner: 
Tenant shall pay to Landlord the amounts owed under this Section 7
within thirty (30) days after Landlord gives notice to Tenant of the amount of
such Taxes payable by Tenant (or not less than twenty (20) days prior to
delinquency, whichever is later). Landlord also shall provide Tenant with a
copy of the applicable tax bill or tax statement from the relevant taxing
authority.  Notwithstanding the
foregoing, if Applicable Laws allow any such Taxes to be paid in installments,
then Tenant may make such payments to Landlord in installments, provided
that each such installment shall be payable to Landlord not less than twenty
(20) days prior to the date upon which payment of the applicable installment to
the taxing authority becomes delinquent. 
In addition to any other amounts due from Tenant to Landlord, if Tenant
fails to pay Taxes to Landlord as herein required, Tenant shall pay to Landlord
the amount of any interest, penalties or late charges imposed for late
payment.  “Applicable Laws” means
all laws, codes, ordinances, rules and regulations of Governmental Authorities
having jurisdiction over the Premises or any portion thereof, or over Landlord
or Tenant.


(a)           If
the Premises are separately assessed, Tenant shall have the right, by appropriate
proceedings, to protest or contest in good faith any assessment or reassessment
of Taxes, any special assessment, or the validity of any Taxes or of any change
in assessment or tax rate; provided, however, that prior to any such
challenge Tenant must either (a) pay the Taxes alleged to be due in their
entirety and seek a refund from the appropriate authority or (b) post a



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bond in an amount sufficient to ensure full payment of the
Taxes, including any potential interest, late charges and penalties. Upon a
final determination with respect to any such contest or protest, Tenant shall
promptly pay to the appropriate Governmental Authority all sums found to be due
with respect thereto. In any such protest or contest, Tenant may act in its own
name, and at the request of Tenant, Landlord shall cooperate with Tenant in any
way Tenant may reasonably require in connection with such contest or protest,
including signing such documents as Tenant reasonably shall request, provided
that such cooperation shall be at no expense to Landlord and shall not require
Landlord to attend any appeal or other hearing. 
Any such contest or protest shall be at Tenant’s sole expense, and if
any penalties, interest or late charges become payable with respect to the
Taxes as a result of such contest or protest, Tenant shall pay the same.


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


7.2.          Tenant shall be solely
responsible for the payment of any and all taxes levied upon personal property
and trade fixtures located upon the Premises, and shall pay the same at least ten
(10) days prior to delinquency.


7.3.          If,
at any time during the Term under the laws of any Governmental Authority, a tax
or excise on rent or any other tax howsoever described is levied or assessed by
any such political body against Landlord on account of rentals payable to
Landlord hereunder, such tax or excise shall be considered “Taxes” for
the purposes of this Section 7, although any amount assessed against
Landlord as state or federal income tax shall not be deemed “Taxes.”


7.4.          To
the extent Landlord is required by a lender, Tenant shall timely pay all tax
and insurance impound payments due on the Premises.


8.             Rentable
Area.


8.1.          The
term “Rentable Area” as set forth in Section 2, and as may
otherwise be referenced within this Lease.


8.2.          The
“Rentable Area” of the Building is generally determined by making
separate calculations of Rentable Area applicable to each floor within the
Building and totaling the Rentable Area of all floors within the Building. The
Rentable Area of a floor is computed by measuring to the outside finished
surface of the permanent outer Building walls. 
The full area calculated as previously set forth is included as Rentable
Area, without deduction for columns and projections or vertical penetrations,
including stairs, elevator shafts, flues, pipe shafts, vertical ducts and the
like, as well as such items’ enclosing walls.


9.             Security
Deposit.


9.1.          Tenant
has deposited with Landlord the sum set forth in Section 2.7 (payable in
cash or, in the form of a letter of credit reasonably acceptable to Landlord)
(the “Security Deposit”), which Security Deposit shall be held by
Landlord as security for the faithful performance by Tenant of all of the
terms, covenants and conditions of this Lease to be kept and performed by
Tenant during the period commencing on the Commencement Date and ending upon
the expiration or termination of this Lease. 
If Tenant defaults with respect to any provision of this Lease,
including, but not limited to, any provision relating to the payment of Rent,
then Landlord may (but shall not be required to) use, apply or retain all or
any part of the Security Deposit for the payment of any Rent or any other sum
in default, or to compensate Landlord for any other loss or damage that
Landlord may suffer by reason of Tenant’s default.  If any portion of the Security Deposit is so
used or applied, then Tenant shall, within ten (10) days following demand
therefor, deposit cash with Landlord in an amount sufficient to restore the
Security Deposit to its original amount, or replenish the letter of credit to
the amount required hereunder, and Tenant’s failure to do so shall be a
material breach of this Lease.  Landlord
shall not be required to keep this Security Deposit separate from its general
fund, and Tenant shall not be entitled to interest on the Security Deposit.


9.2.          In
lieu of depositing cash as the Security Deposit, Tenant shall have the right to
deliver to Landlord an unconditional, irrevocable, standby letter of credit in
the amount of the cash Security Deposit otherwise required hereunder, which
letter of credit shall (i) be in a form



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reasonably
acceptable to Landlord, (ii) be issued by a financial institution selected by
Tenant and reasonably acceptable to Landlord, (iii) be for the benefit of
Landlord, but shall be transferable at Tenant’s sole cost and expense by
Landlord to any subsequent purchaser or encumbrancer of the Building, and (iv)
be payable by draft sight in a location reasonably acceptable to Landlord upon
presentation of a certification signed by an officer of Landlord which states
that an event of Default has occurred under this Lease, and (v) be payable in
the event such letter of credit is not renewed on or before the date which is
thirty (30) days prior to its expiration. 
Any amounts of cash drawn on a letter of credit Security Deposit will
thereafter be treated as a cash Security Deposit hereunder; provided
that Tenant shall be permitted to restore the original balance of the letter of
credit and have the corresponding cash Security Deposit returned to Tenant.


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


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


9.5.          If
Tenant shall fully and faithfully perform every provision of this Lease to be
performed by it, then the Security Deposit, or any balance thereof, shall be
returned to Tenant (or, at Landlord’s option, to the last assignee of Tenant’s
interest hereunder) within thirty (30) days after the expiration or earlier
termination of this Lease.


10.           Use.


10.1.        Tenant
shall use the Premises for the purpose set forth in Section 2.8, and
shall not use the Premises, or permit or suffer the Premises to be used, for
any other purpose without Landlord’s prior written consent, which consent
Landlord may withhold in its sole and absolute discretion.


10.2.        Tenant
shall not use or occupy the Premises in violation of Applicable Laws; zoning
ordinances; or the certificate of occupancy issued for the Building, and shall,
upon five (5) days’ written notice from Landlord, discontinue any use of the
Premises that is declared or claimed by any Governmental Authority having
jurisdiction to be a violation of any of the above, or that in Landlord’s
reasonable opinion violates any of the above. 
Tenant shall comply with any direction of any Governmental Authority
having jurisdiction that shall, by reason of the nature of Tenant’s use or
occupancy of the Premises, impose any duty upon Tenant or Landlord with respect
to the Premises or with respect to the use or occupation thereof.


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


10.4.        No awnings
or other projections shall be attached to any outside wall of the Building.


10.5.        No
additional sign, advertisement or notice shall be exhibited, painted or affixed
by Tenant on any part of the exterior of the Building or on the Property
without Landlord’s prior written consent, which will not be unreasonably
withheld.  By executing this Lease,
Landlord hereby approves the signage currently existing on the Premises.


10.6.        Tenant
shall not use or allow the Premises to be used for unlawful purposes, nor shall
Tenant knowingly cause, maintain or permit any nuisance or waste in, on or
about the Premises.


10.7.        Notwithstanding
any other provision herein to the contrary, Tenant shall be responsible for all
liabilities, costs and expenses arising out of or in connection with the
compliance of the Premises with the Americans with Disabilities Act, 42 U.S.C.
§ 12101, et seq.



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(together with regulations promulgated pursuant thereto, the “ADA”),
and Tenant shall indemnify, defend and hold harmless Landlord from and against
any loss, cost, liability or expense (including reasonable attorneys’ fees and
disbursements) arising out of any failure of the Premises to comply with the
ADA.  The provisions of this Section
10.7 shall survive the expiration or earlier termination of this Lease.


11.           Brokers.


11.1.        Tenant
represents and warrants that it has had no dealings with any real estate broker
or agent in connection with the negotiation of this Lease and that it knows of
no real estate broker or agent that is or might be entitled to a commission in
connection with this Lease.


11.2.        Tenant
represents and warrants that no broker or agent has made any representation or
warranty relied upon by Tenant in Tenant’s decision to enter into this Lease,
other than as contained in this Lease.


11.3.        Tenant
acknowledges and agrees that the employment of brokers by Landlord is for the
purpose of solicitation of offers of leases from prospective tenants and that
no authority is granted to any broker to furnish any representation (written or
oral) or warranty from Landlord unless expressly contained within this
Lease.  Landlord is executing this Lease
in reliance upon Tenant’s representations and warranties contained within Sections
11.1 and 11.2.


12.           Holding
Over.


12.1.        If, with
Landlord’s prior written consent, Tenant holds possession of all or any part of
the Premises after the Term, Tenant shall become a tenant from month to month
after the expiration or earlier termination of the Term, and in such case
Tenant shall continue to pay (a) the Basic Annual Rent in accordance with Section
5, as adjusted in accordance with Section 6, and (b) any amounts for
which Tenant would otherwise be liable under this Lease if the Lease were still
in effect, including, without limitation, payments for Taxes and insurance. Any
such month-to-month tenancy shall be subject to every other term, covenant and
agreement contained herein.


12.2.        Notwithstanding
the foregoing, if Tenant remains in possession of the Premises after the
expiration or earlier termination of the Term without Landlord’s prior written
consent, Tenant shall become a tenant at sufferance subject to the terms and conditions
of this Lease, except that the Basic Monthly Rent shall be equal to one hundred
fifty percent (150%) of the Rent in effect during the last thirty (30) days of
the Term.


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


12.4.        The
foregoing provisions of this Section 12 are in addition to and do not
affect Landlord’s right of reentry or any other rights of Landlord hereunder or
as otherwise provided by Applicable Laws.


13.           Property
Management Fee. Tenant
shall pay to Landlord on the first day of each calendar month of the Term, as
Additional Rent, the “Property Management Fee,” which shall equal
$2,645.00 per month.


14.           Condition
of Premises. Tenant acknowledges that
neither Landlord nor any agent of Landlord has made any representation or
warranty with respect to the condition of the Premises, or with respect to the
suitability of the Premises for the conduct of Tenant’s business.  Tenant’s taking of possession of the Premises
shall, except as otherwise agreed to in writing by Landlord and Tenant,
conclusively establish that Tenant accepts the Premises “as is.”


15.           Utilities
and Services.


15.1.        Tenant
shall, at its sole cost and expense, promptly and properly observe and comply
with (including in the making by Tenant of any alterations to the Premises) all
present and future orders, regulations, directions, rules, laws, ordinances,
and requirements of all Governmental Authorities arising from the use or
occupancy of, or applicable to, the Premises or any portion thereof.



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15.2.        Within
sixty (60) days after the Term Commencement Date, and within sixty (60) days
after the beginning of each calendar year during the Term, Landlord shall give
Tenant a written estimate for such calendar year of insurance provided by
Landlord (“Insurance Costs”). Tenant shall pay such estimated amount to
Landlord in advance in equal monthly installments. Within ninety (90) days
after the end of each calendar year, Landlord shall furnish to Tenant a
statement showing in reasonable detail the costs incurred by Landlord for the
operation and maintenance of the Premises during such year (the “Annual
Statement”), and Tenant shall pay to Landlord the costs incurred in excess
of the payments previously made by Tenant within ten (10) days of receipt of
the Annual Statement.  In the event that
the payments previously made by Tenant for the operation and maintenance of the
Premises exceed Tenant’s obligation, such excess amount shall be credited by
Landlord to the Rent or other charges next due and owing, provided that,
if the Term has expired, Landlord shall remit such excess amount to Tenant.


15.3.        Tenant
shall make all arrangements for and pay for all water, sewer, gas, heat, light,
power, telephone service and any other service or utility Tenant required at
the Premises. Landlord shall not be liable for, nor shall any eviction of
Tenant result from, the failure to furnish any utility or service, whether or
not such failure is caused by accident; breakage; repair; strike, lockout or
other labor disturbance or labor dispute of any character; governmental
regulation, moratorium or other governmental action (collectively, “Force
Majeure”). In the event of such failure, Tenant shall not be entitled to
termination of this Lease, any abatement or reduction of Rent, or relief from
the operation of any covenant or agreement of this Lease.  Tenant shall pay for, prior to delinquency of
payment therefor, any utilities and services that may be furnished to the
Premises during or, if Tenant occupies the Premises after the expiration or
earlier termination of the Term, after the Term.


16.           Alterations.


16.1.        Tenant
shall make no alterations, additions or improvements in or to the Premises that
cost in excess of $100,000 without Landlord’s prior written approval, which
approval Landlord shall not unreasonably withhold; provided, however,
that in the event any proposed alteration, addition or improvement affects (a)
any structural portions of the Building, including exterior walls, roof,
foundation or core of the Building, (b) the exterior of the Building or (c) any
Building systems, including elevator, plumbing, air conditioning, heating,
electrical, security, life safety and power, then Landlord may withhold its
approval with respect thereto in its sole and absolute discretion. In seeking
Landlord’s approval, Tenant shall provide Landlord, at least fourteen (14) days
in advance of any proposed construction, with plans, specifications, bid proposals,
work contracts, requests for laydown areas and such other information
concerning the nature and cost of the alterations as Landlord may reasonably
request.


16.2.        Tenant
shall not construct or permit to be constructed partitions or other obstructions
that might interfere with free access to mechanical installation or service
facilities of the Building, or interfere with the moving of Landlord’s
equipment to or from the enclosures containing such installations or
facilities.


16.3.        Tenant
shall accomplish any work performed on the Premises in such a manner as to
permit any fire sprinkler system and fire water supply lines to remain fully
operable at all times.


16.4.        Tenant
covenants and agrees that all work done by Tenant or Tenant’s contractors shall
be performed in full compliance with Applicable Laws.  Tenant shall provide Landlord with complete “as-built”
drawing print sets and electronic CADD files on disc showing any changes in the
Premises for which Landlord’s approval is required pursuant to Section 16.1.


16.5.        Before
commencing any work for which Landlord’s approval is required pursuant to Section
16.1, Tenant shall give Landlord at least fourteen (14) days’ prior written
notice of the proposed commencement of such work and shall, if required by Landlord,
secure, at Tenant’s own cost and expense, a completion and lien indemnity bond
satisfactory to Landlord for said work.


16.6.        All
alterations, attached equipment, fixtures, additions and improvements, subject
to Section 17.6, attached to or built into the Premises, made by either
of the Parties, including, without limitation, all flooring and wall coverings,
built-in cabinet work and paneling, sinks and related plumbing fixtures,
exterior venting fume hoods and walk-in freezers and refrigerators, ductwork,
conduits, electrical panels and circuits, shall, unless, prior to such
construction or installation, Landlord elects otherwise, become the property of
Landlord upon the expiration or



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earlier termination of the Term, and shall remain upon and be surrendered
with the Premises as a part thereof.


 


16.7.        Tenant
shall repair any damage to the Premises caused by Tenant’s removal of any
property from the Premises.  During any
such restoration period, Tenant shall pay Rent to Landlord as provided herein
as if said space were otherwise occupied by Tenant.


16.8.        Except as to those items
listed on Exhibit C attached hereto, all fixtures (except for Tenant’s
trade fixtures), built-in furniture and cabinets installed in and upon the
Premises shall be and remain the property of Landlord and shall not be moved by
Tenant at any time during the Term. If Tenant shall fail to remove any of its
effects from the Premises prior to termination of this Lease, then Landlord
may, at its option, remove the same in any manner that Landlord shall choose
and store said effects without liability to Tenant for loss thereof or damage
thereto, and Tenant shall pay Landlord, upon demand, any costs and expenses
incurred due to such removal and storage or Landlord may, at its sole option
and without notice to Tenant, sell such property or any portion thereof at
private sale and without legal process for such price as Landlord may obtain
and apply the proceeds of such sale against any (a) amounts due by Tenant to
Landlord under this Lease and (b) any expenses incident to the removal, storage
and sale of said personal property.


16.9.        Notwithstanding
any other provision of this Section 16 to the contrary, in no event
shall Tenant remove any improvement from the Premises as to which Landlord contributed
payment without Landlord’s prior written consent, which consent Landlord may
withhold in its sole and absolute discretion.


16.10.      Tenant
shall reimburse Landlord for any extra expenses incurred by Landlord by reason
of faulty work done by Tenant or its contractors, or by reason of delays caused
by such work, or by reason of inadequate clean-up.


16.11.      After final
completion of the Tenant Improvements (or any other alterations, improvement or
additions performed by Tenant with respect to the Premises) for which Landlord
approval is required pursuant to Section 16.1, Tenant shall submit to
Landlord documentation showing the amounts expended by Tenant with respect to
such Tenant Improvements (or any other alterations, improvement or additions
performed by Tenant with respect to the Premises).


17.           Repairs
and Maintenance.


17.1.        Tenant, at
its sole cost and expense, shall maintain and keep the Premises, all
improvements thereon, and all appurtenances thereto, including but not limited
to sidewalks, parking areas, curbs, roads, driveways, lighting standards,
landscaping, sewers, water, gas and electrical distribution systems and
facilities, drainage facilities, and all signs, both illuminated and
non-illuminated that are now or hereafter on the Premises, in good condition
and in a manner consistent with the Permitted Use. Tenant shall make all
repairs, replacements and improvements, including, without limitation, all
structural, roof, HVAC, plumbing and electrical repairs, replacements and
improvements required, and shall keep the same free and clear from all rubbish
and debris. All repairs made by Tenant shall be at least equal in quality to
the original work, and shall be made only by a licensed bondable
contractor.  Tenant shall not take or
omit to take any action, the taking or omission of which shall cause waste,
damage or injury to the Premises. Tenant shall indemnify, defend (by legal
counsel acceptable to Landlord) and hold harmless Landlord from and against any
and all Claims (as defined below) arising out of the failure of Tenant or
Tenant’s Agents to perform the covenants contained in this paragraph.  “Tenant’s Agents” shall be defined to
include Tenant’s officers, employees, agents, contractors, invitees, customers
and subcontractors.


17.2.        Tenant
shall maintain the lines designating the parking spaces in good condition and
paint the same as often as may be necessary, so that they are easily
discernable at all times; resurface the parking areas as necessary to maintain
them in good condition; paint any exterior portions of the Building as
necessary to maintain them in good condition; maintain the roof and landscaping
in good condition; maintain sightly screens, barricades or enclosures around
any waste or storage areas; and take all reasonable precautions to insure that
the drainage facilities of the roof are not clogged and are in good and
operable condition at all times.


17.3.        There shall
be no abatement of Rent and no liability of Landlord by reason of any injury to
or interference with Tenant’s business arising from the making of any repairs,
alterations



 8
 






 



or improvements in or to any portion of the Premises, or in or to
improvements, fixtures, equipment and personal property therein; provided that
Landlord shall not unreasonably interfere with Tenant’s use or quiet enjoyment
of the Premises.


 


17.4.        Except as
provided in Section 21 (Damage or Destruction), during the Term,
Landlord shall not be required to maintain or make any repairs or replacements
of any nature or description whatsoever to the Premises.  Tenant hereby expressly waives the right to
make repairs at the expense of Landlord as provided for in any Applicable Laws
in effect at the time of execution of this Lease, or in any other Applicable
Laws that may hereafter be enacted, and waives its rights under Applicable Laws
relating to a landlord’s duty to maintain its premises in a tenantable
condition. Notwithstanding the foregoing, if Tenant shall fail, after
reasonable notice, to maintain or to commence and thereafter to proceed with
diligence to make any repair required of it pursuant to the terms of this
Lease, Landlord, without being under any obligation to do so and without
thereby waiving such default by Tenant, may so maintain or make such repair and
may charge Tenant for the costs thereof. Any expense reasonably incurred by
Landlord in connection with the making of such repairs may be billed by
Landlord to Tenant monthly or, at Landlord’s option, immediately, and shall be
due and payable within ten (10) days after such billing or, at Landlord’s
option, may be deducted from the Security Deposit.


17.5.        Landlord
and Landlord’s agents shall have the right to enter upon the Premises or any
portion thereof for the purposes of performing any repairs or maintenance
Landlord is permitted to make pursuant to this Lease, and of ascertaining the
condition of the Premises or whether Tenant is observing and performing Tenant’s
obligations hereunder, all without unreasonable interference from Tenant or
Tenant’s Agents.  Except for emergency
maintenance or repairs, the right of entry contained in this paragraph shall be
exercisable at reasonable times, at reasonable hours and on reasonable notice.


17.6.        Tenant
shall, upon the expiration or sooner termination of the Term, surrender the
Premises to Landlord in as good of a condition as when received, ordinary wear
and tear excepted. The parties acknowledge the nonfunctional status of certain
equipment listed on Exhibit F attached hereto (the “Nonfunctional
Equipment”). Landlord shall have no obligation to alter, remodel, improve,
repair, decorate or paint the Premises or any part thereof.


17.7.        This Section
17 relates to repairs and maintenance arising in the ordinary course of
operation of the Premises and any related facilities.  In the event of fire, earthquake, flood,
vandalism, war or similar cause of damage or destruction, Section 21
shall apply in lieu of this Section 17.


18.           Liens.


18.1.        Subject to
the immediately succeeding sentence, Tenant shall keep the Premises free from
any liens arising out of work performed, materials furnished or obligations
incurred by Tenant. Tenant further covenants and agrees that any mechanic’s
lien filed against the Premises for work claimed to have been done for Tenant,
or materials claimed to have been furnished to Tenant, shall be discharged or
bonded by Tenant within ten (10) days after Tenant is given notice thereof, at
Tenant’s sole cost and expense.


18.2.        Should
Tenant fail to discharge or bond against any lien of the nature described in Section
18.1, Landlord may, at Landlord’s election, pay such claim or post a bond
or otherwise provide security to eliminate the lien as a claim against title,
and Tenant shall immediately reimburse Landlord for the costs thereof as
Additional Rent.


18.3.        In the
event that Tenant leases or finances the acquisition of office equipment,
furnishings or other personal property of a removable nature utilized by Tenant
in the operation of Tenant’s business, Tenant warrants that any Uniform
Commercial Code financing statement executed by Tenant shall, upon its face or
by exhibit thereto, indicate that such financing statement is applicable only
to removable personal property of Tenant located within the Premises.  In no event shall the address of the Premises
be furnished on a financing statement without qualifying language as to
applicability of the lien only to removable personal property located in an
identified suite leased by Tenant. Should any holder of a financing statement
executed by Tenant record or place of record a financing statement that appears
to constitute a lien against any interest of Landlord or against equipment that
may be located other than within an identified suite leased by Tenant, Tenant
shall, within ten (10) days after filing such financing statement, cause (a) a
copy of



 9
 






 



the lender security agreement or other documents to which the
financing statement pertains to be furnished to Landlord to facilitate Landlord’s
ability to demonstrate that the lien of such financing statement is not
applicable to Landlord’s interest and (b) Tenant’s lender to amend such
financing statement and any other documents of record to clarify that any liens
imposed thereby are not applicable to any interest of Landlord in the Premises.


19.           Indemnification
and Exculpation.


19.1.        Tenant
agrees to indemnify, defend and save Landlord harmless from and against any and
all demands, claims, liabilities, losses, costs, expenses, actions, causes of
action, damages or judgments, and all reasonable expenses (including, without
limitation, reasonable attorneys’ fees, charges and disbursements) incurred in
investigating or resisting the same (collectively, “Claims”) arising
from injury or death to any person or injury to any property occurring within
or about the Premises arising directly or indirectly out of Tenant’s or Tenant’s
employees’, agents’ or guests’ use or occupancy of the Premises or a breach or
default by Tenant in the performance of any of its obligations hereunder,
except to the extent caused by Landlord’s willful misconduct or gross negligence.


19.2.        Notwithstanding
any provision of Section 19.1 to the contrary, Landlord shall not be
liable to Tenant for, and Tenant assumes all risk of, damage to personal
property or scientific research, including, without limitation, loss of records
kept by Tenant within the Premises and damage or losses caused by fire,
electrical malfunction, gas explosion or water damage of any type (including,
without limitation, broken water lines, malfunctioning fire sprinkler systems,
roof leaks or stoppages of lines), unless any such loss is due to Landlord’s
willful disregard of written notice by Tenant of need for a repair that
Landlord is responsible to make for an unreasonable period of time, or Landlord’s
willful misconduct or gross negligence. 
Tenant further waives any claim for injury to Tenant’s business or loss
of income relating to any such damage or destruction of personal property as
described in this Section 19.2.


19.3.        Landlord
shall not be liable for any damages arising from any act, omission or neglect of
any third party in connection with the Premises.


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


19.5.        The
provisions of this Section 19 shall survive the expiration or earlier
termination of this Lease.


20.           Insurance;
Waiver of Subrogation.


20.1.        Landlord
shall maintain insurance for the Property and the Building in amounts equal to
full replacement cost (exclusive of the costs of excavation, foundations and
footings, and without reference to depreciation taken by Landlord upon its
books or tax returns).  Landlord, subject
to availability thereof, shall further insure, if Landlord deems it
appropriate, coverage against flood, environmental hazard, earthquake, loss or
failure of building equipment, rental loss during the period of repairs or
rebuilding, workmen’s compensation insurance and fidelity bonds for employees
employed to perform services. 
Notwithstanding the foregoing, Landlord may, but shall not be deemed
required to, provide insurance for any improvements installed by Tenant or that
are in addition to the standard improvements customarily furnished by Landlord,
but only to the extent such are made a part of or are affixed to the Building.


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


20.3.        Tenant
shall, at its own cost and expense, procure and maintain in effect, beginning
on the Term Commencement Date or the date of occupancy, whichever occurs first,
and continuing throughout the Term (and occupancy by Tenant, if any, after
termination of this Lease) comprehensive public liability insurance with limits
of not less than Two Million Dollars



 10
 






 



($2,000,000) per occurrence for death or bodily injury and not less than
One Million Dollars ($1,000,000) for property damage with respect to the
Premises.


 


20.4.        The
insurance required to be purchased and maintained by Tenant pursuant to this
Lease shall name Landlord, BioMed Realty, L.P., BioMed Realty Trust, Inc., and
their respective officers, employees, agents, general partners, members and
Lenders (“Landlord Parties”) as additional insureds. Said insurance
shall be with companies having a rating of not less than policyholder rating of
A and financial category rating of at least Class XII in “Best’s Insurance
Guide.” Tenant shall obtain for Landlord from the insurance companies or cause
the insurance companies to furnish certificates of coverage to Landlord.  No such policy shall be cancelable or subject
to reduction of coverage or other modification or cancellation except after
thirty (30) days’ prior written notice to Landlord from the insurer.  All such policies shall be written as primary
policies, not contributing with and not in excess of the coverage that Landlord
may carry.  Tenant’s policy may be a “blanket
policy” that specifically provides that the amount of insurance shall not be
prejudiced by other losses covered by the policy.  Tenant shall, at least twenty (20) days prior
to the expiration of such policies, furnish Landlord with renewals or
binders.  Tenant agrees that if Tenant
does not take out and maintain such insurance, Landlord may (but shall not be
required to) procure said insurance on Tenant’s behalf and at its cost to be
paid by Tenant as Additional Rent.


20.5.        Tenant
assumes the risk of damage to any fixtures, goods, inventory, merchandise,
equipment and leasehold improvements, and Landlord shall not be liable for
injury to Tenant’s business or any loss of income therefrom, relative to such
damage, except to the extent caused by Landlord’s gross negligence or
intentional misconduct.  Tenant shall, at
Tenant’s sole cost and expense, carry such insurance as Tenant desires for
Tenant’s protection with respect to personal property of Tenant or business interruption.


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


20.7.        Landlord
and Tenant each hereby waive any and all rights of recovery against the other
or against the officers, directors, employees, agents and representatives of
the other on account of loss or damage occasioned by such waiving party or its
property or the property of others under such waiving party’s control, in each
case to the extent that such loss or damage is insured against under any fire
and extended coverage insurance policy that either Landlord or Tenant may have
in force at the time of such loss or damage. 
Such waivers shall continue so long as their respective insurers so
permit.  Any termination of such a waiver
shall be by written notice to the other party, containing a description of the
circumstances hereinafter set forth in this Section 20.7. Landlord and
Tenant, upon obtaining the policies of insurance required or permitted under
this Lease, shall give notice to the insurance carrier or carriers that the
foregoing mutual waiver of subrogation is contained in this Lease.  If such policies shall not be obtainable with
such waiver or shall be so obtainable only at a premium over that chargeable
without such waiver, then the party seeking such policy shall notify the other
of such conditions, and the party so notified shall have ten (10) days
thereafter to either (a) procure such insurance with companies reasonably
satisfactory to the other party or (b) agree to pay such additional
premium.  If the parties do not
accomplish either (a) or (b), then this Section 20.7 shall have no
effect during such time as such policies shall not be obtainable or the party
in whose favor a waiver of subrogation is desired refuses to pay the additional
premium.  If such policies shall at any
time be unobtainable, but shall be subsequently obtainable, then neither party
shall be subsequently liable for a failure to obtain such insurance until a
reasonable time after notification thereof by the other party.  If the release of either Landlord or Tenant,
as set forth in the first sentence of this Section 20.7, shall
contravene Applicable Laws, then the liability of the party in question shall
be deemed not released but shall be secondary to the other party’s insurer.


20.8.        Any costs
incurred by Landlord pursuant to this Section 20 shall be included as
Insurance Costs payable by Tenant pursuant to this Lease.



 11
 






 



21.           Damage
or Destruction.


21.1.        In the
event of a partial destruction of the Premises by fire or other perils covered
by extended coverage insurance not exceeding 50% of the full insurable value
thereof, and provided that the damage thereto is such that the Premises
may be repaired, reconstructed or restored within a period of 12 months from
the date of the happening of such casualty. 
Landlord shall commence and proceed diligently with the work of repair,
reconstruction and restoration of the Premises, and this Lease shall continue
in full force and effect.


21.2.        In the
event of any damage to or destruction of the Premises other than as described
in Section 21.1, Landlord may elect to repair, reconstruct and restore
the Premises, in which case this Lease shall continue in full force and
effect.  If Landlord elects not to repair
the Premises, then this Lease shall terminate as of the date of such damage or
destruction.


21.3.        Landlord
shall give written notice to Tenant of its election not to repair, reconstruct
or restore the Premises within sixty (60) days following the date of damage or
destruction.


21.4.        Upon any
termination of this Lease under any of the provisions of this Section 21,
the parties shall be released thereby without further obligation to the other
from the date possession of the Premises is surrendered to the Landlord, except
with regard to (a) items occurring prior to the damage or destruction and (b)
provisions of this Lease that, by their express terms, survive the expiration
or earlier termination hereof.


21.5.        In the
event of repair, reconstruction and restoration as provided in this Section
21, all Rent to be paid by Tenant under this Lease shall be abated
proportionately based on the extent to which Tenant’s use of the Premises is
impaired during the period of such repair, reconstruction or restoration,
unless Landlord provides Tenant with other space during the period of repair
that, in Tenant’s reasonable opinion, is suitable for the temporary conduct of
Tenant’s business.


21.6.        Notwithstanding
anything to the contrary contained in this Section 21, should Landlord
be delayed or prevented from completing the repair, reconstruction or
restoration of the damage or destruction to the Premises after the occurrence
of such damage or destruction by Force Majeure, then the time for Landlord to
commence or complete repairs shall be extended on a day-for-day basis; provided,
however, that, if such Force Majeure event continues for more than 120
days, Tenant shall have the right to terminate this Lease.  Tenant shall be released from any obligations
under this Lease (except with regard to those provisions that, by their express
terms, survive the expiration or earlier termination hereof) if, on the date
that is 12 months after the date of damage or destruction, the repair,
reconstruction or restoration required to be performed by Landlord to provide
Tenant use of the Premises is not then Substantially Completed.


21.7.        If Landlord
is obligated to or elects to repair, reconstruct or restore as herein provided,
then Landlord shall be obligated to make such repair, reconstruction or
restoration only with regard to those portions of the Premises that were
originally provided at Landlord’s expense. The repair, reconstruction or
restoration of improvements not originally provided by Landlord or at Landlord’s
expense shall be the obligation of Tenant. 
In the event Tenant has elected to upgrade certain improvements from the
Building Standard, Landlord shall, upon the need for replacement due to an
insured loss, provide only the Building Standard, unless Tenant again elects to
upgrade such improvements and pay any incremental costs related thereto, except
to the extent that excess insurance proceeds, if received, are adequate to
provide such upgrades, in addition to providing for basic repair,
reconstruction and restoration of the Premises.


21.8.        Notwithstanding anything
to the contrary contained in this Section 21, Landlord shall not have
any obligation whatsoever to repair, reconstruct or restore the Premises if the
damage resulting from any casualty covered under this Section 21 occurs
during the last eighteen (18) months of the Term or any extension hereof, or to
the extent that insurance proceeds are not available therefore, unless such
lack of availability is due to Landlord’s failure to maintain insurance in
accordance with this Lease.


21.9.        Landlord’s
obligation, should it elect or be obligated to repair or rebuild, shall be
limited to the Premises; provided that Tenant shall, at its expense,
replace or fully repair all of Tenant’s personal property.  If the Premises are to be repaired in
accordance with the foregoing, Landlord shall make available to Tenant any
portion of insurance proceeds it receives that are



 12














 


allocable to the alterations constructed by Tenant pursuant
to this Lease, provided Tenant is not then in default under this Lease.


22.           Eminent
Domain.


22.1.        In the
event the whole of the Premises, or such part thereof as shall substantially
interfere with the Tenant’s use and occupancy thereof, shall be taken for any
public or quasi-public purpose by any lawful power or authority by exercise of
the right of appropriation, condemnation or eminent domain, or sold to prevent
such taking, Tenant or Landlord may terminate this Lease effective as of the
date possession is required to be surrendered to said authority.


22.2.        In the
event of a partial taking of the Premises, or of drives, walkways or parking
areas serving the Premises for any public or quasi-public purpose by any lawful
power or authority by exercise of right of appropriation, condemnation, or
eminent domain, or sold to prevent such taking, then, without regard to whether
any portion of the Premises occupied by Tenant was so taken, Landlord may elect
to terminate this Lease as of such taking if such taking is, in Landlord’s
reasonable opinion, of a material nature such as to make it uneconomical to
continue use of the unappropriated portion for purposes of renting office or
laboratory space.


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


22.4.        If, upon
any taking of the nature described in this Section 22, this Lease
continues in effect, then Landlord shall promptly proceed to restore the
Premises to substantially their same condition prior to such partial
taking.  To the extent such restoration
is feasible, as determined by Landlord in its reasonable discretion, the Rent
shall be decreased by a number, the numerator of which is the rental value of
the Premises prior to such taking, and the denominator of which is the value of
the Premises after such taking.


23.           Defaults
and Remedies.


23.1.        Late
payment by Tenant to Landlord of Rent and other sums due shall cause Landlord
to incur costs not contemplated by this Lease, the exact amount of which shall
be extremely difficult and impracticable to ascertain.  Such costs include, but are not limited to,
processing and accounting charges and late charges that may be imposed on
Landlord by the terms of any mortgage or trust deed covering the Premises.  Therefore, if any installment of Rent due
from Tenant is not received by Landlord within five (5) days after the date
such payment is due, Tenant shall pay to Landlord an additional sum of five
percent (5%) of the overdue Rent as a late charge. The parties agree that this
late charge represents a fair and reasonable estimate of the costs that
Landlord shall incur by reason of late payment by Tenant.  In addition to the late charge, Rent not paid
when due shall bear interest from the fifth (5th) day after the date due until paid at the lesser of (a)
twelve percent (12%) per annum or (b) the maximum rate permitted by Applicable
Laws.


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


23.3.        If Tenant
fails to pay any sum of money (other than Basic Annual Rent or Rental
Adjustments) required to be paid by it hereunder, or shall fail to perform any
other act on its part to be performed hereunder, Landlord may, without waiving
or releasing Tenant from any obligations of Tenant, but shall not be obligated
to, make such payment or perform such act; provided that such failure by
Tenant continues for 5 days after Landlord delivers notice to Tenant demanding
performance by Tenant; or that such failure by Tenant unreasonably interfered
with the efficient



 13
 






 



operation
of the Premises, or resulted or could have resulted in a violation of
Applicable Laws or the cancellation of an insurance policy maintained by
Landlord.  Tenant shall pay to Landlord
as Additional Rent all sums so paid or incurred by Landlord, together with
interest thereon, from the date such sums were paid or incurred, at the annual
rate equal to twelve percent (12%) per annum or highest rate permitted by
Applicable Laws, whichever is less.


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


(a)           The abandonment
or vacation of the Premises by Tenant;


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


(c)           The failure by
Tenant to observe or perform any obligation or covenant contained herein (other
than described in Subsections 23.4(a) and 23.4(b)) to be
performed by Tenant, where such failure shall continue for a period of 30 days
after written notice thereof from Landlord to Tenant; provided that, if
the nature of Tenant’s default is such that it reasonably requires more than 30
days to cure, Tenant shall not be deemed to be in default if Tenant shall
commence such cure within said 30-day period and thereafter diligently
prosecute the same to completion;


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


(e)           A receiver,
trustee or custodian is appointed to or does take title, possession or control
of all or substantially all of Tenant’s assets;


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


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


(h)           Failure to
deliver an estoppel certificate within 5 days of the time period required in
accordance with Section 28; or


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


(j)            Notices given
under this Section 23.4 shall specify the alleged default and shall
demand that Tenant perform the provisions of this Lease or pay the Rent that is
in arrears, as the case may be, within the applicable period of time, or quit
the Premises.  No such notice shall be
deemed a forfeiture or a termination of this Lease unless Landlord elects
otherwise in such notice.


(k)           Notwithstanding
any other provision in this Section 23.4, in the event the occurrence of
any of the events specified in subparagraphs (a) through (j) above cause a
condition that poses an imminent threat to the public health, safety or
welfare, the applicable cure periods set forth in such subparagraph shall not
apply, and the occurrence of such event shall immediately constitute a material
“Default” hereunder.


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



 14
 






 



Tenant all damages incurred by Landlord by reason of Tenant’s default,
including, without limitation:


 


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


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


(c)           The
worth at the time of award of the amount by which the unpaid Rent for the
balance of the Term after the time of award exceeds that portion of the loss of
Landlord’s rental income from the Premises that Tenant proves to Landlord’s reasonable satisfaction could have been
reasonably avoided; plus


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


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


As
used in Subsections 23.5(a) and 23.5(b), “worth at the time of
award” shall be computed by allowing interest at the rate specified in Section
23.1. As used in Subsection 23.5(c) above, the “worth at the time of
the award” shall be computed by taking the present value of such amount, using
the discount rate of the Federal Reserve Bank of San Francisco at the time of
the award plus one (1) percentage points.


23.6.        If Landlord
does not elect to terminate this Lease as provided in Section 23.5, then
Landlord may, from time to time, recover all Rent as it becomes due under this
Lease.  At any time thereafter, Landlord
may elect to terminate this Lease and to recover damages to which Landlord is
entitled.


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


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


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


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


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


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



 15
 






 



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


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


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


23.12.      In the
event of any default by Landlord, Tenant shall give notice by registered or
certified mail to any (a) beneficiary of a deed of trust or (b) mortgagee under
a mortgage covering the Premises or any portion thereof and to any landlord of
any lease of land upon or within which the Premises are located, and shall
offer such beneficiary, mortgagee or landlord a reasonable opportunity to cure
the default, including time to obtain possession of the Premises by power of
sale or a judicial action if such should prove necessary to effect a cure; provided
that Landlord shall promptly furnish to Tenant in writing, upon written request
by Tenant, the names and addresses of all such persons who are to receive such
notices.


24.           Assignment
or Subletting.


24.1.        Except as
hereinafter provided, Tenant shall not, either voluntarily or by operation of
Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge,
encumber or otherwise transfer this Lease, or sublet the Premises or any part
hereof (each, a “Transfer”), without Landlord’s prior written consent,
which consent Landlord may not unreasonably withhold or delay; provided that,
without the consent of Landlord, Tenant may assign this Lease to a party that
acquires substantially all the assets of or equity in Tenant.


24.2.        In the
event Tenant desires to effect a Transfer, then, at least forty-five (45) but
not more than ninety (90) days prior to the date when Tenant desires the
assignment or sublease to be effective (the “Assignment Date”), Tenant
shall provide written notice to Landlord (the “Assignment Notice”)
containing information (including references) concerning the character of the
proposed transferee, assignee or sublessee; the Assignment Date; any ownership
or commercial relationship between Tenant and the proposed transferee, assignee
or sublessee; and the consideration and all other material terms and conditions
of the proposed Transfer, all in such detail as Landlord shall reasonably
require. Tenant shall also tender to Landlord reasonable attorneys’ fees and
other costs or overhead expenses incurred by Landlord in reviewing Tenant’s
request for such Transfer; provided that such costs and expenses shall not
exceed $2,000.00.


24.3.        Landlord,
in determining whether consent should be given to a proposed Transfer, may give
consideration to the financial strength of such transferee, assignee or
sublessee (notwithstanding Tenant remaining liable for Tenant’s performance),
any change in use that such transferee, assignee or sublessee proposes to make
in the use of the Premises.  In no event
shall Landlord be deemed to be unreasonable for declining to consent to a
Transfer to a transferee, assignee or sublessee of poor reputation, lacking
financial qualifications, seeking a material change in the Permitted Use, or
jeopardizing directly or indirectly the status of Landlord or any of Landlord’s
affiliates as a Real Estate Investment Trust under the Code.


24.4.        As
conditions precedent to Tenant subleasing or transferring any rights to the
Premises, Landlord may require any or all of the following:


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



 16
 






 



(b)           Tenant
shall provide Landlord with evidence reasonably satisfactory to Landlord
respecting the relevant business experience and financial responsibility and
status of the proposed transferee, assignee or sublessee;


(c)           Tenant
shall reimburse Landlord for Landlord’s actual costs and expenses, including,
without limitation, reasonable attorneys’ fees, charges and disbursements
incurred in connection with the review, processing and documentation of such
request; provided that such costs and expenses shall not exceed $2,000.00.


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


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


(f)            Any
such Transfer shall be effected on Landlord’s forms;


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


(h)           Landlord
shall not be bound by any provision of any agreement pertaining to the
Transfer, without Landlord’s written agreement to the same;


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


(j)            A
list of Hazardous Materials (as defined in Section 38.7 below),
certified by the proposed transferee, assignee or sublessee to be true and
correct, that the proposed transferee, assignee or sublessee intends to use or
store in the Premises.  Additionally,
Tenant shall deliver to Landlord, on or before the date any proposed
transferee, assignee or sublessee takes occupancy of the Premises, all of the
items relating to Hazardous Materials of such proposed transferee, assignee or
sublessee as described in Section 38.2.


24.5.        Any
Transfer that is not in compliance with the provisions of this Section 24
shall be void and shall, at the option of Landlord, terminate this Lease.


24.6.        The consent
by Landlord to a Transfer shall not relieve Tenant or proposed transferee,
assignee or sublessee from obtaining Landlord’s consent to any further
Transfer, nor shall it release Tenant or any proposed transferee, assignee or
sublessee of Tenant from full and primary liability under this Lease unless
otherwise agreed in writing by Landlord.


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



 17
 






 



24.8.        If Tenant
delivers to Landlord an Assignment Notice indicating a desire to transfer this
Lease to a proposed transferee, assignee or sublessee other than as provided
within Section 24.4, then Landlord shall have the option, exercisable by
giving notice to Tenant at any time within ten (10) days after Landlord’s
receipt of such Assignment Notice, to terminate this Lease as of the date
specified in the Assignment Notice as the Assignment Date, except for those
provisions that, by their express terms, survive the expiration or earlier
termination hereof.  If Landlord
exercises such option, then Tenant shall have the right to withdraw such
Assignment Notice by delivering to Landlord written notice of such election
within five (5) days after Landlord’s delivery of notice electing to exercise
Landlord’s option to terminate this Lease. 
In the event Tenant withdraws the Assignment Notice as provided in this Section
24.8, this Lease shall continue in full force and effect. No failure of
Landlord to exercise its option to terminate this Lease shall be deemed to be
Landlord’s consent to a proposed Transfer.


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


25.           Attorneys’
Fees. If either party commences an
action against the other party arising out of or in connection with this Lease,
then the prevailing party shall be entitled to have and recover from the
non-prevailing party reasonable attorneys’ fees, charges and disbursements and
costs of suit.


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


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


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


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


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


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


28.           Estoppel
Certificate. Tenant shall, within ten
(10) days of receipt of written notice from Landlord, execute, acknowledge and
deliver a statement in writing substantially in the form attached to this Lease
as Exhibit E, or on any other form reasonably requested by a proposed



 18
 






 



Lender or purchaser, (a) certifying that this Lease is
unmodified and in full force and effect (or, if modified, stating the nature of
such modification and certifying that this Lease as so modified is in full
force and effect) and the dates to which rental and other charges are paid in
advance, if any, (b) acknowledging that there are not, to Tenant’s knowledge,
any uncured defaults on the part of Landlord hereunder, or specifying such
defaults if any are claimed, and (c) setting forth such further information
with respect to this Lease or the Premises as may be requested thereon.  Any such statement may be relied upon by any
prospective purchaser or encumbrancer of all or any portion of the real property
of which the Premises are a part.  Tenant’s
failure to deliver such statement within 5 days of the prescribed time shall,
at Landlord’s option, constitute a Default under this Lease, and, in any event,
shall be binding upon Tenant that the Lease is in full force and effect and
without modification except as may be represented by Landlord in any
certificate prepared by Landlord and delivered to Tenant for execution.


29.           Joint
and Several Obligations. If more
than one person or entity executes this Lease as Tenant, then:


29.1.        Each of
them is jointly and severally liable for the keeping, observing and performing
of all of the terms, covenants, conditions, provisions and agreements of this
Lease to be kept, observed or performed by Tenant; and


29.2.        The term “Tenant”
as used in this Lease shall mean and include each of them, jointly and
severally. The act of, notice from, notice to, refund to, or signature of any
one or more of them with respect to the tenancy under this Lease, including,
without limitation, any renewal, extension, expiration, termination or
modification of this Lease, shall be binding upon each and all of the persons
executing this Lease as Tenant with the same force and effect as if each and
all of them had so acted, so given or received such notice or refund, or so
signed.


30.           Limitation
of Landlord’s Liability.


30.1.        If Landlord
is in default under this Lease and, as a consequence, Tenant recovers a
monetary judgment against Landlord, the judgment shall be satisfied only out of
(a) the proceeds of sale received on execution of the judgment and levy against
the right, title and interest of Landlord in the Premises, (b) rent or other
income from such real property receivable by Landlord or (c) the consideration
received by Landlord from the sale, financing, refinancing or other disposition
of all or any part of Landlord’s right, title or interest in the Premises.


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


30.3.        Each of the
covenants and agreements of this Section 30 shall be applicable to any
covenant or agreement either expressly contained in this Lease or imposed by
Applicable Laws and shall survive the expiration or earlier termination of this
Lease.


31.           Premises
Control by Landlord.


31.1.        Landlord
reserves full control over the Premises to the extent not inconsistent with
Tenant’s enjoyment of the same as provided by this Lease.  This reservation includes, without
limitation, Landlord’s right to subdivide the Property, convert the Building to
condominium units,



 19
 






 



grant easements and licenses to third parties, and maintain or
establish ownership of the Building separate from fee title to the Property.


 


31.2.        Tenant
shall, at Landlord’s request, promptly execute such further documents as may be
reasonably appropriate to assist Landlord in the performance of its obligations
hereunder; provided that Tenant need not execute any document that
creates additional liability for Tenant or that deprives Tenant of the quiet
enjoyment and use of the Premises as provided by this Lease.


31.3.        Landlord
may, at any and all reasonable times during non-business hours (or during
business hours if Tenant so requests), and upon twenty-four (24) hours’ prior
notice (provided that no time restrictions shall apply or advance notice
be required if an emergency necessitates immediate entry), enter the Premises
to (a) inspect the same and to determine whether Tenant is in compliance with
its obligations hereunder, (b) supply any service Landlord is required to
provide hereunder, (c) show the Premises to prospective purchasers or tenants
during the final year of the Term, (d) post notices of nonresponsibility and
(e) access the telephone equipment, electrical substation and fire risers. In
connection with any such alteration, improvement or repair as described in Section
17.4 above, Landlord may erect in the Premises scaffolding and other
structures reasonably required for the alteration, improvement or repair work
to be performed.  In no event shall
Tenant’s Rent abate as a result of Landlord’s activities pursuant to this Section
31.3; provided, however, that all such activities shall be
conducted in such a manner so as to cause as little interference to Tenant as
is reasonably possible, and such activities shall not materially interfere with
Tenant’s use and quiet enjoyment of the Premises.  Landlord shall at all times retain a key with
which to unlock all of the doors in the Premises.  If an emergency necessitates immediate access
to the Premises, Landlord may use whatever force is necessary to enter the
Premises, and any such entry to the Premises shall not constitute a forcible or
unlawful entry to the Premises, a detainer of the Premises, or an eviction of
Tenant from the Premises or any portion thereof.


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


33.           Subordination
and Attornment.


33.1.        This Lease
shall be subject and subordinate to the lien of any mortgage, deed of trust, or
lease in which Landlord is tenant now or hereafter in force against the
Premises or any portion thereof and to all advances made or hereafter to be
made upon the security thereof without the necessity of the execution and
delivery of any further instruments on the part of Tenant to effectuate such
subordination.


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


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


33.4.        Notwithstanding
anything to the contrary contained herein, so long as Tenant is not in default
under this Lease, its peaceful use and occupancy of the Premises under this
Lease shall not be impaired, restricted or terminated by any mortgagee, grand
lessor, beneficiary, or secured party.



 20
 






 



34.           Surrender.


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


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


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


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


36.           Waiver
of Jury Trial and Counterclaims. The
parties waive trial by jury in any action, proceeding or counterclaim brought
by the other party hereto related to matters arising out of or in any way
connected with this Lease; the relationship between Landlord and Tenant; Tenant’s
use or occupancy of the Premises; or any claim of injury or damage related to
this Lease or the Premises.


37.           [Intentionally
omitted]


38.           Hazardous
Materials.


38.1.        Tenant
shall not cause or permit any Hazardous Materials (as hereinafter defined) to
be brought upon, kept or used in or about the Premises in violation of
Applicable Laws by Tenant, its agents, employees, contractors or invitees.  If Tenant breaches such obligation, or if the
presence of Hazardous Materials as a result of such a breach results in
contamination of the Premises or any adjacent property, or if contamination of
the Premises or any adjacent property by Hazardous Materials is caused by
Tenant or its agents, contractors, invitees or employees during the term of
this Lease or any extension or renewal hereof or holding over hereunder, then
Tenant shall indemnify, save, defend and hold Landlord, its agents and
contractors harmless from and against any and all claims, judgments, damages,
penalties, fines, costs, liabilities and losses (including, without limitation,
diminution in value of the Premises or any portion thereof; damages for the
loss or restriction on use of rentable or usable space or of any amenity of the
Premises; damages arising from any adverse impact on marketing of space in the
Premises; and sums paid in settlement of claims, attorneys’ fees, consultants’
fees and experts’ fees) that arise during or after the Term as a result of such
breach or contamination.  This
indemnification of Landlord by Tenant includes, without limitation, costs
incurred in connection with any investigation of site conditions or any
cleanup, remedial, removal or restoration work required by any Governmental
Authority because of Hazardous Materials present in the air, soil or
groundwater above, on or under the Premises. 
Without limiting the foregoing, if the presence of any Hazardous
Materials in, on, under or about the Premises or any adjacent property caused
or permitted by Tenant results in any contamination of the Premises or any
adjacent property, then Tenant shall promptly take all actions at its sole cost
and expense as are necessary to return the Premises and any adjacent property
to their respective condition existing prior to the time of such contamination;
provided that Landlord’s written approval of such action shall first be
obtained, which approval Landlord shall not unreasonably withhold or delay; and
provided, further, that it shall be reasonable for Landlord to withhold
its consent if such actions could have a material adverse long-term or
short-term effect on the Premises.


38.2.        Landlord
acknowledges that it is not the intent of this Section 38 to prohibit
Tenant from operating its business as described in Section 2.8 above.
Tenant may operate its business according to the custom of Tenant’s industry so
long as the use or presence of Hazardous Materials is strictly and properly
monitored according to Applicable Laws. 
As a material inducement to



 21
 






 



Landlord
to allow Tenant to use Hazardous Materials in connection with its business,
Tenant has delivered to Landlord prior to the Term Commencement Date a list
identifying each type of Hazardous Material to be present on the Premises and
setting forth any and all governmental approvals or permits required in
connection with the presence of such Hazardous Material on the Premises (the “Hazardous
Materials List”). Tenant shall deliver to Landlord an updated Hazardous
Materials List: (a) upon any contamination of the Premises; or (b) upon the
request of Landlord, which Landlord shall not request more than once per
year.  Tenant shall deliver to Landlord
true and correct copies of the following documents (hereinafter referred to as
the “Documents”) relating to the handling, storage, disposal and
emission of Hazardous Materials prior to the Term Commencement Date or, if
unavailable at that time, concurrent with the receipt from or submission to any
Governmental Authority:  permits;
approvals; reports and correspondence; storage and management plans; notices of
violations of Applicable Laws; plans relating to the installation of any
storage tanks to be installed in or under the Premises (provided that
installation of below-ground storage tanks shall only be permitted after
Landlord has given Tenant its written consent to do so, which consent Landlord
may withhold in its sole and absolute discretion); and all closure plans or any
other documents required by any and all Governmental Authorities for any
storage tanks installed in, on or under the Premises for the closure of any
such storage tanks. Tenant shall not be required, however, to provide Landlord
with any portion of the Documents containing information of a proprietary
nature that, in and of themselves, do not contain a reference to any Hazardous
Materials or activities related to Hazardous Materials.


38.3.        Notwithstanding
the provisions of Section 38.1 above, if (a) any proposed transferee,
assignee or sublessee of Tenant has been required by any prior landlord, Lender
or Governmental Authority to take remedial action in connection with Hazardous
Materials contaminating a property if the contamination resulted from such
party’s action or omission or use of the property in question or (ii) any
proposed transferee, assignee or sublessee is subject to an enforcement order
issued by any Governmental Authority in connection with the use, disposal or
storage of Hazardous Materials, then it shall not be unreasonable for Landlord
to withhold its consent to any proposed transfer, assignment or subletting
(with respect to any such matter involving a proposed transferee, assignee or
sublessee).


38.4.        At any
time, and from time to time,  prior to
the expiration of the Term, Landlord shall have the right to conduct
appropriate tests of the Premises to demonstrate that Hazardous Materials are
present or that contamination has occurred due to Tenant or Tenant’s agents,
employees or invitees.  Tenant shall pay
all reasonable costs of such tests of the Premises.


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


38.6.        Tenant’s
obligations under this Section 38 shall survive the expiration or
earlier termination of the Lease.  During
any period of time needed by Tenant or Landlord after the termination of this
Lease to complete the removal from the Premises of any such Hazardous
Materials, Tenant shall continue to pay Rent in accordance with this Lease,
which Rent shall be prorated daily, but only to the extent that the Premises
are rendered untenantable by such activity.


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


39.           [Intentionally
omitted]


40.           Miscellaneous.


40.1.        This Lease shall be deemed and construed to be an “absolute
net lease” and, except as herein expressly provided, Landlord shall receive all
payments required to be made by Tenant free from all charges, assessments, impositions,
expenses and deductions of any and every kind or nature whatsoever. Landlord
shall not be required to furnish any services or facilities or to make any
repairs, replacements or alterations of any kind in or on the Premises except
as specifically provided herein. Tenant shall receive all invoices and bills
relative to the Premises and, except as otherwise provided herein, shall pay
for all expenses directly to the person or company submitting a bill without
first having to forward payment for the expenses to Landlord.  Tenant shall at 



 22
 






 



Tenant’s sole cost and expense be responsible for the management of the
Premises, shall maintain the landscaping and parking lot, and shall make those
additional repairs and alterations required of Tenant hereunder to maintain the
Premises in good order, condition and repair subject to the conditions of the
Premises as of the Term Commencement Date.


 


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


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


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


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


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


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


40.8.        Any
provision of this Lease that shall prove to be invalid, void or illegal shall
in no way affect, impair or invalidate any other provision hereof, and all
other provisions of this Lease shall remain in full force and effect and shall
be interpreted as if the invalid, void or illegal provision did not exist.


40.9.        Landlord
may, but shall not be obligated to, record this Lease or a short form
memorandum hereof without Tenant’s consent. 
Neither party shall record this Lease. 
Tenant shall be responsible for the cost of recording any memorandum of
this Lease, including any transfer or other taxes incurred in connection with
said recordation.


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


40.11.      Each of the
covenants, conditions and agreements herein contained shall inure to the
benefit of and shall apply to and be binding upon the parties hereto and their
respective heirs; legatees; devisees; executors; administrators; and permitted
successors, assigns, sublessees. Nothing in this Section 40.11 shall in
any way alter the provisions of this Lease restricting assignment or
subletting.


40.12.      Any notice,
consent, demand, bill, statement or other communication required or permitted
to be given hereunder shall be in writing and shall be given by personal
delivery, overnight delivery with a reputable nationwide overnight delivery
service, or certified mail (return receipt requested), and if given by personal
delivery, shall be deemed delivered upon receipt; if given by overnight
delivery, shall be deemed delivered one (1) day after deposit with a reputable
nationwide overnight delivery service; and, if given by certified mail (return
receipt requested), shall be deemed delivered two (2) days after the time the
notifying party deposits the notice with the United States Postal Service.  Any notices given pursuant to this Lease shall
be addressed to Tenant at the Premises, or to Landlord or Tenant at the
addresses shown in Sections 2.10 and 2.11, respectively. Either
party may, by notice to the other given pursuant to this Section, specify
additional or different addresses for notice purposes.


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



 23
 






 



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


40.15.      If not
publicly available, Tenant agrees that it shall promptly furnish to Landlord,
from time to time, upon Landlord’s written request, the most recent audited
year-end financial statements reflecting Tenant’s current financial
condition.  Tenant represents and
warrants that all financial statements, records and information furnished by
Tenant to Landlord in connection with this Lease are true, correct and complete
in all respects.


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


41.           Option
to Extend Term. Tenant
shall have the option (“Option”) to extend the Term of this Lease upon
the following terms and conditions:


41.1.        Tenant
shall have two (2) consecutive options to extend the Term of this Lease by five
(5) years each (each, an “Extended Term”) on the same terms
and conditions as this Lease, except that the Monthly Base Rent payable under
this Lease shall be 95% of the Fair Market Rental Value.  “Fair
Market Rental Value” shall mean the fair market value of
laboratory/office space of similar age and finish in the Boulder, Colorado
market taking into account all relevant factors, including without limitation,
improvement allowances or rent concessions granted in connection with such
other leases, provided, however, that in no event shall any leasehold
improvement made by Tenant following the Commencement Date ever be considered
in any valuation of the fair market value of the space.  The Basic Annual Rent of each Extended Term
shall be subject to an annual upward adjustment of two percent (2%) of the
then-current Basic Annual Rent.


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


41.3.        The Option
is conditional upon Tenant giving Landlord written notice of its election to
exercise the Option at least twelve (12) months prior to the (i) expiration of
the initial Term in the case of the first Extended Term, or (ii) expiration of
the first Extended Term in the case of the second Extended Term.  If said notice is not delivered within said
time period(s), the Option shall terminate.


41.4.        Within
thirty (30) days after receiving Tenant’s notice extending the Term of this
Lease pursuant to Section 41.3 above, Landlord shall provide Tenant with
Landlord’s good faith estimate of 95% of the Fair Market Rental Value of the
Premises for the Extended Term.  If
Tenant is unwilling to accept Landlord’s estimate of the Fair Market Rental
Value as set forth in Landlord’s notice referred to above, and the parties are
unable to reach agreement thereon within thirty (30) days after the delivery of
such notice by Landlord, then either party may obtain and deliver to the other
party an independent appraisal of the Fair Market Rental Value of the Premises
within ten (10) days after the expiration of such thirty (30) day period.  Within fifteen (15) days after receiving such
party’s appraisal, the responding party may elect to obtain at its own expense
and deliver to the initiating party a second independent appraisal of the Fair
Market Rental Value of the Premises.  If
the second appraiser shall not have been so appointed within such fifteen (15)
day period, the Fair Market Rental Value of the Premises shall be determined by
the initiating party’s appraisal. If the second appraiser shall have been so
appointed, the two appraisers thus appointed shall, within fifteen (15) days
after the responding party’s notice of appointment of the second appraiser,
appoint a third appraiser.  If the two
initial appraisers are unable timely to agree on the third appraiser, then
either may, on behalf of both, request such appraiser by the Denver office of
JAMS Inc., or its successor, or, on its failure, refusal or inability to act,
by a court of competent jurisdiction. 
Within fifteen (15) days after the appointment of the third appraiser,
the Fair Market Rental Value of the Premises shall be the arithmetical average
of the two appraisals closest in their determination of fair market rental
value which amount shall be binding upon the parties. All appraisers shall be
qualified MAI appraisers who are independent from the parties and have had at
least ten (10) years commercial real estate experience in the greater Denver
area and significant experience dealing with the laboratory space
sub-market.  Each party shall pay the
fees of its own appraiser, and the fees of the third appraiser shall be shared
equally by the parties.



 24
 






 



41.5.        Notwithstanding
anything contained in this Section 41, Tenant shall not have the right
to exercise the Option:


(a)           During
the time commencing from the date Landlord delivers to Tenant a written notice
that Tenant is in default under any provisions of this Lease and continuing
until Tenant has cured the specified default to Landlord’s reasonable
satisfaction; or


(b)           At
any time after an event of Default as described in Section 23.4 of the
Lease (provided, however, that, for purposes of this Subsection 41.5(b),
Landlord shall not be required to provide Tenant with notice of such Default)
and continuing until Tenant cures any such Default, if such Default is
susceptible to being cured; or


(c)           In
the event that Tenant has defaulted in the performance of its obligations under
this Lease three (3) or more times and a service or late charge has become
payable under Section 23.1 for each of such defaults during the twelve
(12)-month period immediately prior to the date that Tenant intends to exercise
the Option, whether or not Tenant has cured such defaults.


41.6.        The period
of time within which Tenant may exercise the Option shall not be extended or
enlarged by reason of Tenant’s inability to exercise the Option because of the
provisions of Section 41.4.


41.7.        All of Tenant’s
rights under the provisions of the Option shall terminate and be of no further
force or effect even after Tenant’s due and timely exercise of an Option if,
after such exercise, but prior to the commencement date of the new term, (a)
Tenant fails to pay to Landlord a monetary obligation of Tenant for a period of
twenty (20) days after written notice from Landlord to Tenant,
(b) Tenant fails to commence to cure a default (other than a monetary default)
within thirty (30) days after the date Landlord gives notice to Tenant of such
default or (c) Tenant has defaulted under this Lease three (3) or more times
and a service or late charge under Section 23.1 has become payable for
any such default during the immediately preceding 24-month period, whether or not
Tenant has cured such defaults.


42.           Equal
Termination Date Extension Option. In
addition to the Option described in Section 41, Tenant shall also have an
option to extend the Term of this lease, as the same may otherwise be extended
pursuant to the terms hereof, so that the Lease Term shall expire upon the
expiration of the term of the Longmont Lease (as defined below), as the term of
the Longmont Lease may be extended from time to time (the “Equal Termination
Date Extension Option”).


The “Longmont Lease” shall have the meaning as defined in that certain
Assignment Agreement dated June 21, 2006, between Tenant and BioMed Realty,
L.P.  The Equal Termination Date
Extension Option is conditioned upon Tenant giving Landlord written notice of
its election to exercise such Option at least 12 months prior to the expiration
of the initial Term.


[REMAINDER OF THIS PAGE INTENTIONALLY LEFT
BLANK]



 25
 






 



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


	
  LANDLORD:

  
	
   

  
	
   

  
	
  BMR-3200 Walnut Street LLC,

  
	
  a Delaware limited liability company

  
	
   

  
	
  By:

  	
  BioMed Realty, L.P.,

  
	
   

  	
  a Maryland limited partnership,

  
	
   

  	
  its Member

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


	
  TENANT:

  
	
   

  
	
  Array BioPharma Inc.,

  
	
  a Delaware corporation

  
	
   

  
	
  By:

  
	
   

  
	
  Name: Mike Carruthers

  
	
  Title: CFO

  



 



 26














 


EXHIBIT
A


PREMISES


Premises: Lot 1, Synergen Subdivision Filing No. 3, County
of Boulder, State of Colorado, the Plat of which was recorded November 7, 1996
on Film 2168 as Reception No. 1656392 in Plan File P-32, F-3, No. 25.









 



EXHIBIT
B


ACKNOWLEDGEMENT OF TERM COMMENCEMENT DATE

AND TERM EXPIRATION DATE 


THIS ACKNOWLEDGEMENT OF TERM COMMENCEMENT DATE AND TERM EXPIRATION DATE
is entered into as of
                           
, 2006, with reference to that certain Lease (the “Lease”) dated as of                            ,
2006 by Array BioPharma Inc., a Delaware corporation (“Tenant”), in
favor of BMR-3200 Walnut Street LLC, a Delaware limited liability company (“Landlord”).  All capitalized terms used herein without
definition shall have the meanings ascribed to them in the Lease.


Tenant hereby confirms the following:


1.             Tenant
accepted possession of the Premises as-is on
                           ,
2006.


2.             The
Premises are in good order, condition and repair except as described on Exhibit
     of the Lease.


3.             The
Tenant Improvements required to be constructed by Landlord under the Lease have
been substantially completed.


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


5.             The Term
Commencement Date is           ,
2006, and, unless the Lease is terminated prior to the Term Expiration Date
pursuant to its terms, the Lease Expiration Date shall be              ,
2016.


6.             Tenant
commenced occupancy of the Premises under this Lease for the Permitted Use on                  ,
2006.


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


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


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


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


[REMAINDER OF THIS PAGE INTENTIONALLY LEFT
BLANK]









 



IN WITNESS WHEREOF, the
parties hereto have executed this Acknowledgment of Term Commencement Date and
Term Expiration Date as of
[              ],
2016.


 


	
  TENANT:

  
	
   

  
	
  ARRAY BIOPHARMA INC.,

  
	
  a Delaware corporation

  
	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  



 









 



EXHIBIT C


 


TENANT’S PERSONAL PROPERTY 


Tenant’s Personal Property
includes all non-attached furniture, fixtures and equipment.  In addition, for purposes of this Lease, “Tenant Personal Property” shall also include attached trade
fixtures, equipment and improvements installed by Tenant prior to the Effective
Date (the “Additional Tenant
Property”). The Additional Tenant
Property shall be transferred to and owned by Landlord at the end of the Lease
Term.









 



EXHIBIT D


 


RULES AND REGULATIONS 


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


1.             Except as
specifically provided in the Lease to which these Rules and Regulations are
attached, no sign, placard, picture, advertisement, name or notice shall be
installed or displayed on any part of the outside of the Premises or the
Building without Landlord’s prior written consent. Landlord shall have the
right to remove, at Tenant’s sole cost and expense and without notice, any sign
installed or displayed in violation of this rule.


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


3.             No
deliveries shall be made that impede or interfere with operation of the
Premises.


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


5.             Tenant
shall not install any radio, television or other antenna, cell or other
communications equipment, or any other devices on the roof or exterior walls of
the Premises except to the extent shown on approved Tenant Improvements
plans.  Tenant shall not interfere with
radio, television or other communications from or in the Premises or elsewhere.


6.             Canvassing,
peddling, soliciting and distributing handbills or any other written material
within, on or around the Premises are prohibited, and Tenant shall cooperate to
prevent such activities.


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


8.             The
Premises shall not be used for any improper or illegal purpose.


9.             Tenant
shall not, without Landlord’s prior written consent, use the name of the
Premises, if any, in connection with or in promoting or advertising Tenant’s
business except as Tenant’s address.


10.           Tenant
shall comply with all safety, fire protection and evacuation procedures and
regulations established by Landlord or any Governmental Authority.


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


12.           Landlord
may waive any one or more of these Rules and Regulations for the benefit of
Tenant, but no such waiver by Landlord shall prevent Landlord from thereafter
enforcing any such Rules and Regulations against Tenant.


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


14.           Landlord
reserves the right to make such other and reasonable rules and regulations as,
in its judgment, may from time to time be needed for safety and security, the
care and cleanliness of the Premises, or the preservation of good order
therein; provided, however, that Landlord shall provide written
notice to Tenant of such rules and regulations prior to them taking effect and
these Rules and Regulations shall not materially interfere with Tenant’s use
and quiet enjoyment of the









 



Premises. Tenant agrees to abide by these Rules and Regulations and any
additional rules and regulations issued or adopted by Landlord.


 


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









 



EXHIBIT E


 


FORM OF ESTOPPEL CERTIFICATE 


	
  To:

  	
  BMR-3200 Walnut Street LLC

  
	
   

  	
  17140 Bernardo Center Drive, Suite 222

  
	
   

  	
  San Diego, CA 92128

  
	
   

  	
  Attention: General Counsel

  
	
   

  	
   

  
	
   

  	
  BioMed Realty, L.P.

  
	
   

  	
  c/o BioMed Realty Trust, Inc.

  
	
   

  	
  17140 Bernardo Center Drive, Suite 222

  
	
   

  	
  San Diego, CA 92128

  



 


Re:                               1885
33rd Street, 1825 33rd Street, 1865 33rd Street and 3200 Walnut Street (the “Premises”)
in Boulder, Colorado (the “Property”)


 


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


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


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


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


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


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


6.             All work
to be performed for Tenant under the Lease has been performed as required under
the Lease and has been accepted by Tenant[, except [              ]],
and all allowances to be paid to Tenant, including allowances for tenant
improvements, moving expenses or other items, have been paid.


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


8.             [Tenant
has the following expansion rights or options for the Property: [              ].][Tenant
has no rights or options to purchase the Property.]


9.             To Tenant’s
knowledge, no hazardous wastes have been generated, treated, stored or disposed
of by or on behalf of the Tenant in, on or around the Premises in violation of
any environmental laws.


10.           The
undersigned has executed this Estoppel Certificate with the knowledge and
understanding that BMR-3200 Walnut Street LLC or its assignee is acquiring the
Property in reliance on this certificate and that the undersigned shall be
bound by this certificate.  The
statements contained herein may be relied upon by BMR-3200 Walnut Street LLC,
BioMed









 



Realty, L.P., BioMed Realty Trust, Inc., and any mortgagee of the
Property and their respective successors and assigns.


 


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


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


[              ],



a [              ]


	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  
						



 









 



EXHIBIT F


 


NONFUNCTIONAL EQUIPMENT


 


BUILDING ONE 


	
  #

  	
   

  	
  UNIT ID

  	
   

  	
  STATUS

  
	
  1.

  	
   

  	
  HOUSE VACUUM SYSTEM

  	
   

  	
  NON-FUNCTIONING

  
	
  2.

  	
   

  	
  VFD FOR EF 10

  	
   

  	
  NON-FUNCTIONING

  



 


BUILDING TWO 


	
  #

  	
   

  	
  UNIT ID

  	
   

  	
  STATUS

  
	
  1.

  	
   

  	
  STERLING MUA’S 1-12

  	
   

  	
  NON-FUNCTIONING

  
	
  2.

  	
   

  	
  AHU 2

  	
   

  	
  NON-FUNCTIONING

  
	
  3.

  	
   

  	
  STEAM BOILER

  	
   

  	
  NON-FUNCTIONING

  
	
  4.

  	
   

  	
  HALL-FAN POWERED BOXES (21)

  	
   

  	
  NON-FUNCTIONING

  
	
  5.

  	
   

  	
  50 HP AIR COMPRESSOR

  	
   

  	
  NON-FUNCTIONING

  
	
  6.

  	
   

  	
  SEVERAL EXHAUST FANS (13)

  	
   

  	
  NON-FUNCTIONING

  
	
  7.

  	
   

  	
  CLEAN STEAM BOILER

  	
   

  	
  NON-FUNCTIONING

  
	
  8.

  	
   

  	
  AUTO CLAVES

  	
   

  	
  NON-FUNCTIONING

  
	
  9.

  	
   

  	
  SEVERAL SINKS (3)

  	
   

  	
  NON-FUNCTIONING

  
	
  10.

  	
   

  	
  COOLER ROOM 34

  	
   

  	
  NON-FUNCTIONING

  
	
  11.

  	
   

  	
  COOLER ROOM 238

  	
   

  	
  NON-FUNCTIONING

  
	
  12.

  	
   

  	
  COOLER ROOM 40

  	
   

  	
  NON-FUNCTIONING

  
	
  13.

  	
   

  	
  SEVERAL STEAM POWERED PUMPS (5)

  	
   

  	
  NON-FUNCTIONING

  
	
  14.

  	
   

  	
  DI WATER SYSTEM

  	
   

  	
  NON-FUNCTIONING

  
	
  15.

  	
   

  	
  CHILLER ON ROOF

  	
   

  	
  NON-FUNCTIONING

  
	
  16.

  	
   

  	
  MEULLER PYROPURE

  	
   

  	
  NON-FUNCTIONING

  
	
  17.

  	
   

  	
  DI WATER TANK 1

  	
   

  	
  NON-FUNCTIONING

  
	
  18.

  	
   

  	
  DI WATER TANK 2

  	
   

  	
  NON-FUNCTIONING

  
	
  19.

  	
   

  	
  ANSCO 3043

  	
   

  	
  NON-FUNCTIONING

  
	
  20.

  	
   

  	
  ANSCO 3023

  	
   

  	
  NON-FUNCTIONING

  
	
  21.

  	
   

  	
  VWR 1690 GLASS WASH DRYER

  	
   

  	
  NON-FUNCTIONING

  
	
  22.

  	
   

  	
  STERIS RELIANSCE 500 WASHER

  	
   

  	
  NON-FUNCTIONING

  
	
  23.

  	
   

  	
  HOUSE VACUUM SYSTEM

  	
   

  	
  NON-FUNCTIONING

  



 


BUILDING THREE


	
  #

  	
   

  	
  UNIT ID

  	
   

  	
  STATUS

  
	
  1.

  	
   

  	
  SMALL CLEAVER BROOKS BOILER

  	
   

  	
  NON-FUNCTIONING

  
	
  2.

  	
   

  	
  EXHAUST FAN 21

  	
   

  	
  NON-FUNCTIONING

  
	
  3.

  	
   

  	
  VACUUM PUMP

  	
   

  	
  NON-FUNCTIONING

  
	
  4.

  	
   

  	
  CLEAN STEAM BOILER

  	
   

  	
  NON-FUNCTIONING

  
	
  5.

  	
   

  	
  DI WATER SYSTEM

  	
   

  	
  NON-FUNCTIONING

  
	
  6.

  	
   

  	
  DI-R07

  	
   

  	
  NON-FUNCTIONING

  
	
  7.

  	
   

  	
  WALK IN COOLER #47160

  	
   

  	
  NON-FUNCTIONING

  
	
  8.

  	
   

  	
  HEINIOKE WASHING MACHINE

  	
   

  	
  NON-FUNCTIONING

  
	
  9.

  	
   

  	
  AMSCO 3024 AUTO CLAVE

  	
   

  	
  NON-FUNCTIONING

  



 









 



 


BUILDING FOUR


 


	
  #

  	
   

  	
  UNIT ID

  	
   

  	
  STATUS

  
	
  1.

  	
   

  	
  LIQUID NITROGEN TANK

  	
   

  	
  NON-FUNCTIONING

  
	
  2.

  	
   

  	
  EF 3

  	
   

  	
  WORKS, NON-FUNCTIONING