(II) TENANT'S USE OF THE PREMISES FOR THE PERMITTED USE; OR (III)
INCORPORATE THE BUILDING COMMONLY KNOWN AS 4757 NEXUS CENTRE DRIVE, SAN DIEGO,
CALIFORNIA ("BUILDING 4757") OR ANY PORTION THEREOF, OR ANY PORTION OF ANY OTHER
BUILDING OR PARCEL ADJACENT TO THE PREMISES INTO THE COMMON AREAS OF THE
PREMISES. NOTWITHSTANDING THE FOREGOING, LANDLORD SHALL NOT MODIFY (OTHER THAN
REQUIRED REPAIRS) THE TRELLIS (AS DEFINED IN SECTION 3(K) OF THE WORK LETTER) OR
THE SCREENING SOLUTION (AS DEFINED IN SECTION 3(H) OF THE WORK LETTER) WITHOUT
THE CONSENT OF TENANT, SUCH CONSENT NOT TO BE UNREASONABLY WITHHELD, CONDITIONED
OR DELAYED. THROUGHOUT THE TERM, BUT SUBJECT TO THE LIMITATIONS SET FORTH IN
SECTION 10 BELOW, TENANT SHALL HAVE THE RIGHT TO ACCESS THE PREMISES ACROSS
CERTAIN OF THE PARKING AREAS AND DRIVEWAYS LOCATED ON THE REAL PROPERTY ON WHICH
BUILDING 4757 IS LOCATED; PROVIDED THAT, NEITHER TENANT NOR ITS AGENTS,
SERVANTS, EMPLOYEES, INVITEES, ASSIGNS, SUBTENANTS AND CONTRACTORS (EACH A
"TENANT PARTY" AND COLLECTIVELY, "TENANT PARTIES") SHALL HAVE ANY RIGHT TO PARK
ANY OF THEIR VEHICLES WITHIN THE PARKING AREAS LOCATED ON THE BUILDING 4757
PARCEL. AS A MATERIAL INDUCEMENT TO TENANT TO ENTER INTO THIS LEASE, LANDLORD
MADE AND ENTERED INTO THAT CERTAIN ROAD CONSTRUCTION AND DEDICATION AGREEMENT
DATED DECEMBER 22, 2005 (THE "ROAD AGREEMENT"), WITH NEXUS SCIENCE CENTER
UNIVERSITY CITY, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY ("NEXUS"), AND
LANDLORD HEREBY COVENANTS TO PERFORM LANDLORD'S OBLIGATIONS UNDER THE ROAD
AGREEMENT, AND TO COOPERATE WITH TENANT, AT NO ADDITIONAL EXPENSE TO LANDLORD,
IN THE EVENT TENANT EXERCISES ANY OF ITS RIGHTS AS THIRD PARTY BENEFICIARY OF
SUCH ROAD AGREEMENT. IN SUCH EVENT, TENANT SHALL BE SOLELY RESPONSIBLE FOR COSTS
AND EXPENSES THAT TENANT ELECTS TO INCUR (AND WITHOUT OBLIGATION TO DO SO) IN
ENFORCING ITS RIGHTS THEREUNDER. LANDLORD COVENANTS THAT LANDLORD SHALL NOT
MODIFY, AMEND OR TERMINATE THE ROAD AGREEMENT IN ANY MANNER WHICH ADVERSELY
AFFECTS TENANT, NOR WAIVE ANY OBLIGATION OF NEXUS UNDER THE ROAD AGREEMENT IN
ANY MANNER WHICH ADVERSELY AFFECTS TENANT, WITHOUT THE PRIOR WRITTEN APPROVAL OF
TENANT, WHICH SHALL NOT BE UNREASONABLY WITHHELD, CONDITIONED OR DELAYED BY
TENANT.
(B)
LANDLORD SHALL CAUSE THE PREMISES TO BE
MEASURED BY LANDLORD'S ARCHITECT PROMPTLY AFTER THE TENANT'S WORK (AS DEFINED IN
THE WORK LETTER) IS SUBSTANTIALLY COMPLETED (BUT NOT LATER THAN THE RENT
COMMENCEMENT DATE) AND SHALL SUBMIT LANDLORD'S ARCHITECT'S DETERMINATION OF THE
RENTABLE AREA OF THE PREMISES (THE "PROPOSED DETERMINATION") TO TENANT FOR ITS
REVIEW (AT TENANT'S SOLE EXPENSE) AND APPROVAL, WHICH SHALL NOT BE UNREASONABLY
WITHHELD, CONDITIONED OR DELAYED. IF TENANT OBJECTS TO THE PROPOSED
DETERMINATION, TENANT MAY PROVIDE WRITTEN NOTICE TO LANDLORD OF TENANT'S
OBJECTION TO THE PROPOSED DETERMINATION WITHIN 10 BUSINESS DAYS OF THE RECEIPT
OF THE PROPOSED DETERMINATION AND IN SUCH EVENT THE RENTABLE AREA OF THE
PREMISES WILL BE DECIDED PURSUANT TO THE ARBITRATION MECHANISM DESCRIBED IN
SECTION 1(C) (WITH THE TENANT-APPROVED PROPOSED DETERMINATION, OR THE RENTABLE
AREA OF THE PREMISES DETERMINED BY ARBITRATION, HEREINAFTER REFERENCED TO AS THE
"DETERMINATION"). IF TENANT DOES NOT