DETERMINATIONS MADE BY THE FIRST TWO APPRAISERS.
THE THIRD
APPRAISER'S CHOICE SHALL BE SUBMITTED TO THE PARTIES WITHIN FIFTEEN (15)
BUSINESS DAYS AFTER HIS OR HER SELECTION.
SUCH DETERMINATION SHALL BIND BOTH OF
THE PARTIES AND SHALL ESTABLISH THE FAIR MARKET RENTAL VALUE OF THE PREMISES.
EACH PARTY SHALL PAY EQUAL SHARES OF THE FEES AND EXPENSES OF THE THIRD
APPRAISER.
FAIR MARKET RENT FOR THE PURPOSES OF THIS LEASE SHALL MEAN THE THEN
PREVAILING RENT FOR BUILDINGS IN THE CARLSBAD, CALIFORNIA LIFE SCIENCE MARKET,
OF COMPARABLE SIZE, QUALITY AND LOCATION TO THE DEMISED PREMISES, AND LEASED ON
TERMS COMPARABLE TO THE TERMS CONTAINED IN THIS LEASE."
5.
MEMORANDUM OF LEASE.
CONCURRENTLY HEREWITH, THE PARTIES SHALL
PROMPTLY EXECUTE, ACKNOWLEDGE, AND DELIVER DUPLICATE ORIGINALS OF A MEMORANDUM
OF LEASE IN FORM ATTACHED HERETO AS EXHIBIT 'B' (THE "MEMORANDUM OF LEASE").
EITHER PARTY MAY RECORD SUCH MEMORANDUM OF LEASE.
ANY TAXES IMPOSED UPON SUCH
RECORDING SHALL BE PAID BY TENANT.
IF THE PARTIES AMEND THE LEASE, THEN THE
PARTIES SHALL HAVE THE SAME RIGHTS AND OBLIGATIONS REGARDING A MEMORANDUM OF
SUCH AMENDMENT AS THEY DO FOR THE MEMORANDUM OF LEASE.
EXCEPT AS PROVIDED IN
THIS SECTION 5, TENANT SHALL NOT FILE OR RECORD ANY OTHER DOCUMENTS WITH RESPECT
TO THE PREMISES.
6.
EXHIBITS. THE PROVISIONS OF EXHIBITS "A" AND "B" ATTACHED HERETO
ARE HEREBY INCORPORATED INTO AND MADE A PART OF THE LEASE AS EXHIBITS "E" AND
"F" THERETO, RESPECTIVELY.
7.
BROKER. LANDLORD AND TENANT EACH REPRESENTS TO THE OTHER THAT IT
HAS HAD NO DEALINGS WITH ANY REAL ESTATE BROKER OR AGENT IN CONNECTION WITH THE
NEGOTIATION AND/OR EXECUTION OF THIS LEASE OTHER THAN CRESAPARTNERS ("BROKER"),
AND THAT THEY KNOW OF NO OTHER REAL ESTATE BROKER OR AGENT THAT IS OR MIGHT BE
ENTITLED TO A COMMISSION IN CONNECTION WITH THIS LEASE.
LANDLORD SHALL
COMPENSATE BROKER IN RELATION TO THIS LEASE PURSUANT TO A SEPARATE AGREEMENT
BETWEEN LANDLORD AND BROKER.
8.
NO DEFAULT.
TENANT REPRESENTS, WARRANTS AND COVENANTS THAT, TO
THE BEST OF TENANT'S KNOWLEDGE, LANDLORD AND TENANT ARE NOT IN DEFAULT OF ANY OF
THEIR RESPECTIVE OBLIGATIONS UNDER THE LEASE AND NO EVENT HAS OCCURRED THAT,
WITH THE PASSAGE OF TIME OR THE GIVING OF NOTICE (OR BOTH) WOULD CONSTITUTE A
DEFAULT BY EITHER LANDLORD OR TENANT THEREUNDER.
9.
EFFECT OF AMENDMENT.
EXCEPT AS MODIFIED BY THIS AMENDMENT, THE
LEASE AND ALL THE COVENANTS, AGREEMENTS, TERMS, PROVISIONS AND CONDITIONS
THEREOF SHALL REMAIN IN FULL FORCE AND EFFECT AND ARE HEREBY RATIFIED AND
AFFIRMED. THE COVENANTS, AGREEMENTS, TERMS, PROVISIONS AND CONDITIONS CONTAINED
IN THIS AMENDMENT SHALL BIND AND INURE TO THE BENEFIT OF THE PARTIES HERETO AND
THEIR RESPECTIVE SUCCESSORS AND, EXCEPT AS OTHERWISE PROVIDED IN THE LEASE,
THEIR RESPECTIVE ASSIGNS. IN THE EVENT OF ANY CONFLICT BETWEEN THE TERMS
CONTAINED IN THIS AMENDMENT AND THE LEASE, THE TERMS HEREIN CONTAINED SHALL
SUPERSEDE AND CONTROL THE OBLIGATIONS AND LIABILITIES OF THE PARTIES. FROM AND
AFTER THE DATE HEREOF, THE TERM "LEASE" AS USED IN THE LEASE SHALL MEAN THE
LEASE,