ASSIGNMENT AND ASSUMPTION AGREEMENT

Exhibit 10.2

 

ASSIGNMENT AND ASSUMPTION AGREEMENT

 

THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (the “ Assignment Agreement ”) is made as of the          day of March, 2005, by and between ARE-108 ALEXANDER ROAD, LLC (formerly known as ARE-104 ALEXANDER ROAD, LLC), a Delaware limited liability company (“ Landlord ”), ICORIA, INC. (formerly known as Paradigm Genetics, Inc.), a Delaware corporation (“ Tenant ”), and MONSANTO COMPANY, a Delaware corporation (“ New Tenant ”).

 

WITNESSETH:

 

WHEREAS, Landlord and Tenant entered into that certain Lease Agreement [Phase 1B: Greenhouse], dated April 3, 2000 (the “ Lease ”), a true, accurate and complete copy of which is attached hereto as Exhibit A and incorporated herein by reference, for a greenhouse located at 104T Alexander Avenue in the County of Durham, State of North Carolina (the “ Premises ,” as defined in the Lease); and

 

WHEREAS, New Tenant has agreed to assume, effective as of the Assignment Date (as hereinafter defined), the obligations of Tenant thereafter accruing under the Lease subject to the assignment by Tenant of all of its right, title and interest in and under the Lease to New Tenant, upon the execution by Landlord and New Tenant of the First Amendment to Lease attached hereto as Exhibit B and incorporated herein by reference (the “ First Amendment ”) and subject to the other terms and conditions set forth herein; and

 

WHEREAS, Landlord has agreed to consent to said assignment and to enter into the First Amendment, subject to the terms and conditions set forth herein; and

 

WHEREAS, Tenant also leases an office and lab facility (the “ Office/Lab ”) within the Project pursuant to the Amended and Restated Lease Agreement [Phase 1A: Office/Laboratory], dated on or about the date of the Lease (the “ Office/Lab Lease ”), which Tenant is not assigning to New Tenant; and

 

WHEREAS, words and phrases having defined meanings in the Lease shall have the same respective meanings when used herein, unless otherwise expressly defined herein;

 

NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

 

1. Assignment and Delivery of Premises . Tenant hereby assigns, transfers and conveys unto New Tenant, effective as of May 9, 2005 (the “ Assignment Date ”), all right, title and interest of Tenant in and to the Lease. Tenant shall deliver exclusive possession of the Premises to New Tenant on the Assignment Date. New Tenant will accept possession of the Premises on the Assignment Date in its “AS-IS” physical condition, subject to the representations and warranties of Tenant set forth in Section 8 below and the agreements set forth herein, as well any other written representations, warranties and agreements between Tenant and New Tenant made as part of its contemplated business transaction.

 

2. Assumption . New Tenant hereby assumes and agrees to perform when due each and every obligation of the “Tenant” under the Lease, as amended by the First Amendment, accruing from and after the Assignment Date.

 

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3. Assignment Indemnification .

 

(a) Tenant agrees to defend promptly, indemnify and hold New Tenant harmless with respect to any claims, demands, obligations, damages, costs, payments and expenses (including reasonable attorneys’ fees and costs), arising or resulting from any breach, violation or failure to perform any obligations of tenant under the Lease which arise and relate to the period before the Assignment Date and/or arising or resulting from any breach by Tenant of its obligations under Section 6 hereof or from any work or activities of Tenant thereunder (collectively, “ Tenant Liabilitie s ”), any such defense to be with counsel reasonably satisfactory to New Tenant. The indemnification obligations set forth herein shall survive any termination of the Lease.

 

(b) New Tenant agrees to defend promptly, indemnify and hold Tenant harmless with respect to any claims, demands, obligations, damages, costs, payments and expenses (including reasonable attorneys’ fees and costs), arising or resulting from any breach, violation or failure to perform any obligations of tenant under the Lease, as amended by the First Amendment, which arise and relate to the period on and after the Assignment Date (“ New Tenant Liabilitie s ”), any such defense to be with counsel reasonably satisfactory to New Tenant. The indemnification obligations set forth herein shall survive any termination of the Lease.

 

4. Landlord’s Consent to Assignment and Release .

 

(a) Landlord hereby consents to the foregoing assignment and assumption of the Lease and agrees that the same is an “Approved Transfer” for all purposes under the Lease. Landlord hereby agrees to recognize the right of New Tenant to exercise all rights and to enjoy all interests and privileges of the “Tenant” under the Lease from and after the Assignment Date. Notwithstanding anything to the contrary in the Lease, in the event of any default by Tenant of its obligations under the Lease occurring prior to the Assignment Date (including, without limitation, in the event that any insolvency event described in Section 20(f) of the Lease occurs), Landlord agrees that Landlord shall not have the right to terminate the Lease, take possession of the Premises or otherwise pursue any remedy for the default of Tenant that would impair or otherwise adversely affect New Tenant’s use and enjoyment of the Premises and its rights and privileges under the Lease. In addition, in the event Tenant rejects the Lease in bankruptcy proceedings prior to the Assignment Date, Landlord and New Tenant agree that such rejection shall not affect the enforceability of this Assignment Agreement as between Landlord and New Tenant, and this Assignment Agreement, together with the Lease, as amended by the First Amendment, shall continue in full force and effect as between Landlord and New Tenant (in which event, after the date hereof, the Assignment Date shall be accelerated and shall coincide with the date of said rejection).

 

(b) Notwithstanding the provisions of Section 22 of the Lease, Landlord hereby releases Tenant from the performance of any and all obligations arising or accruing under the Lease on or after the Assignment Date, other than any and all obligations of Tenant under Section 30 (Environmental Requirements) of the Lease. Tenant shall remain responsible for the performance of Section 30, in its current form as of the date hereof, for the remainder of the Term of the Lease and such responsibilities and obligations thereunder shall be included as “Tenant Liabilities” for all purposes hereunder. Notwithstanding anything to the contrary in the Lease, Landlord further agrees that New Tenant shall have no liability to Landlord with respect to any Tenant Liabilities.

 

(c) Within ten (10) days following the date hereof, Landlord agrees to request from the landlord under the Ground Lease the recognition of the assignment to New Tenant of the Lease, as amended by the First Amendment, in accordance with Section 12(d) of the Ground Lease and to cooperate, as reasonably necessary, with New Tenant’s efforts to have the parties execute mutually

 

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satisfactory documentation confirming any recognition agreement upon the part of the landlord under the Ground Lease, as contemplated by said Section 12(d).

 

(d) Landlord, Tenant and New Tenant shall provide one another with copies of all correspondence, reports, notices, tests and other written documents received from or sent to any Governmental Authority or the Ground Lessor relating to the handling, storage, disposal or omissions of Hazardous Materials at, on, under or about the Premises and/or the Project, promptly following said receipt of submission of the same. Each party is not required, however, to provide the others with any portion(s) of the same containing information of a proprietary nature that, in and of themselves, do not contain material information with regard to any Hazardous Materials or hazardous activities, it being understood and agreed that it is not the intent of this Section to provide the other parties with information that could be detrimental to such party’s business should such information become possessed by such party’s competitors or other third parties. Accordingly, each party, except as may be provided otherwise herein or required by law, shall (i) keep confidential the information contained in the same, and (ii) disclose such information only to such party’s officers, directors, employees, or consultants with a need to know in connection with such party’s management of, or operations at, the Project or, with regard to Landlord, in connection with Landlord’s ordinary course of ownership of the Project or in connection with Landlord’s sale or financing of the Project, provided that such party shall inform all non-affiliated recipients of such information of the confidentiality requirement and (to the extent within such party’s control) cause such confidence to be maintained; provided, however, that disclosure of such information by such party shall not be prohibited if that disclosure is of information that is a matter of public record or public knowledge or was obtained by such party from sources other than the disclosing party. This provision shall the expiration or earlier termination of the Lease and the Office/Lab Lease.

 

5. Deposits and Adjustments .

 

(a) Landlord agrees to release the Security Deposit and the Demolition Deposit to Tenant within fifteen (15) business days following the Assignment Date, and to refund any sums, and release any letters of credit, to Tenant to the extent held by Landlord in connection therewith.

 

(b) In addition, Tenant and New Tenant agree, as between themselves, to the following provisions concerning adjustments of amounts due under the Lease and other matters related to the assignment contemplated herein:

 

(i) Tenant acknowledges its obligation under the Lease to pay all Rent (including, without limitation, Base Rent, Tenant’s Share of Operating Expenses, Improvement Rent, Taxes, Utilities, insurance premiums and all other charges and amounts that Tenant is obligated to pay under the Lease) accruing or otherwise attributable to periods prior to the Assignment Date, and Tenant agrees and covenants to timely honor said obligation. The parties agree that installments of Rent shall be pro-rated on a per diem basis, as between Tenant and New Tenant, such that promptly upon detailed written demand therefor made on or after the Assignment Date, New Tenant shall reimburse Tenant for any amounts of Rent theretofore paid by Tenant which are for periods of time occurring on or after the Assignment Date; provided, however, Tenant and New Tenant agree to prorate and each pay to Landlord on May 1, 2005, their respective shares of the monthly installments for May of Base Rent, Improvement Rent and Tenant’s Share of estimated Operating Expenses. If any Rent or related charges covering the period up to the Assignment Date are not known or cannot be ascertained by the Assignment Date, then as soon as such costs and charges are known or ascertainable, they shall be prorated as of the Assignment Date and paid by Tenant or New Tenant, as the case may be, according to the number of days in the period covered by the charge through the day immediately preceding the Assignment Date (payable by Tenant) and on or after the Assignment Date (payable by New Tenant). There shall be a

 

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readjustment based on the final charges when available, and Tenant or New Tenant, as appropriate, shall pay to the other party on demand the difference between the original adjustment and the readjustment.

 

(ii) If New Tenant receives a refund with respect to Tenant’s Share of the Operating Expenses for the calendar year of 2004 under Section 5 of the Lease, then New Tenant agrees to promptly pay Tenant said refund. If New Tenant receives a refund with respect to Tenant’s Share of the Operating Expenses for the calendar year of 2005 under Section 5 of the Lease, then New Tenant agrees to promptly pay Tenant its prorata share of said refund, allocable to the period from January 1, 2005 through the day immediately preceding the Assignment Date. Alternatively, if the Annual Statement for the calendar year of 2004 or any prior year shows an amount owing to Landlord, then Tenant shall pay to New Tenant, promptly on demand, said amount, or, if the Annual Statement for the calendar year of 2005 shows an amount owing to Landlord, then Tenant shall pay to New Tenant, promptly on demand, Tenant’s prorata share of said amount, allocable to the period from January 1, 2005 through the day immediately preceding the Assignment Date.

 

(iii) On or before the Assignment Date, Tenant shall transfer to New Tenant all unexpired warranties, if any, covering the Premises (including, without limitation, its facilities and operating systems) or any part thereof. On or before the date hereof, Tenant shall turn over to New Tenant true, accurate and complete copies of such warranties, the final Greenhouse Design Development Plans and any as-built plans or surveys and the like of the Premises or any part thereof, together with all operating manuals, instructions, diagrams, and parts lists with regard to the Premises (including, without limitation, its facilities and operating systems) or any part thereof, if and to the extent in Tenant’s possession or control.

 

6. Separation of the Premises and the Office/Lab .

 

(a) Tenant and New Tenant agree, as between themselves, to the following provisions concerning the separation of the Premises and the Office/Lab:

 

(i) Prior to the Assignment Date, Tenant at its expense shall install and calibrate utility revenue grade metering or sub-metering so that the utilities servicing the Premises are separately metered from the utility meters otherwise measuring utility consumption at the Project (including, without limitation, at the Office/Lab). The work and specifications for, as well as the location within the Premises of, such meters/sub-meters shall be acceptable to New Tenant, on a commercially reasonable basis (provided, however, such reasonableness standard shall include an equitable balancing of the relative costs and benefits of any condition or change that New Tenant may raise in connection with is review and it shall not be reasonable for New Tenant to insist upon changes which impose additional expense upon Tenant and which are purely a result of New Tenant’s corporate policies or matters of taste or aesthetics). No new chillers will be installed at the Premises; rather, New Tenant will have the right to services from the existing chillers per the terms and provisions of a separate agreement between Tenant and New Tenant to be entered into prior to the Assignment Date. In the event such metering cannot be accomplished prior to the Assignment Date or thereafter for reasons beyond the control of Tenant, Tenant and New Tenant shall work together in good faith to agree upon the allocation of such costs as between Tenant and the Premises, on the one hand, and New Tenant and the Office/Lab, on the other hand; provided, however, in the event Tenant and New Tenant are unable to agree, they shall hire a consultant, who is reasonably acceptable to Tenant and New Tenant, to analyze and better apportion such expenses. Tenant and New Tenant shall accept the consultant’s method for apportioning such costs, absent manifest error. Tenant and New Tenant shall each pay half of the fees of such consultant.

 

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(ii) Following the date hereof, with all due diligence, Tenant shall demise and separate any connected portions of the Premises and the Office/Lab by closing common hallways and access with fireproof partitions and finishes comparable to adjacent areas. All such work shall be carried out by Tenant in accordance with the terms and conditions of Section 12 of the Lease hereof and the plans and specifications for which shall be subject to the prior review and approval of New Tenant, which approval New Tenant shall not withhold, condition or delay other than on a commercially reasonable basis (provided, however, such reasonableness standard shall include an equitable balancing of the relative costs and benefits of any condition or change that New Tenant may raise in connection with is review and it shall not be reasonable for New Tenant to insist upon changes which impose additional expense upon Tenant and which are purely a result of New Tenant’s corporate policies or matters of taste or aesthetics). In addition, all such demising and separation work shall be performed by Tenant on a lien-free basis, in a good and workmanlike manner, in accordance with all applicable Legal Requirements and, if and to the extent such work is not completed prior to the Assignment Date, without any unreasonable interference with New Tenant’s business operations and its use and enjoyment of the Premises. In addition, on or prior to the Assignment Date, Tenant shall cause an occupancy permit or its equivalent to be issued in favor of New Tenant permitting its occupancy of the Premises if and to the extent required under applicable Legal Requirements.

 

(iii) Tenant and New Tenant acknowledge and agree that New Tenant will have some access rights to the Office/Lab after the Assignment Date pursuant to the terms of a separate agreement to be entered into between Tenant and New Tenant prior to the Assignment Date, and in connection with that separate agreement that New Tenant shall not be deemed to have accepted any responsibilities or liabilities under the Office/Lab Lease by virtue of such access. New Tenant shall repair and restore promptly, at its own expense, any damage to the Premises or the Office/Lab caused by New Tenant during such access (which damage New Tenant shall use reasonable efforts to avoid causing) and that the conduct of New Tenant during such access shall be in accordance with all applicable Legal Requirements.

 

(b) Landlord agrees that to the extent its approval is required for the plans and specifications of the alterations contemplated in the foregoing subsection (a), under Section 12 of the Lease or under the Office/Lab Lease, Landlord shall not unreasonably withhold, condition or delay such approval. Tenant and New Tenant acknowledge and agree that Landlord has no obligation to make or perform any such alterations in furtherance of the separation of the Office/Lab and Premises, the agreements in the foregoing subsection (a) being agreements between Tenant and New Tenant.

 

7. Lease Amendment . Landlord and New Tenant agree that on or before the Assignment Date, Landlord and New Tenant shall execute and enter into the First Amendment, effective as of the Assignment Date. Prior to the Assignment Date, (a) New Tenant shall prepare and provide Attachment C to the First Amendment, (b) Landlord shall provide New Tenant with copies of all environmental test, reports, inspections, surveys, samples, studies and other analyses of the Project, the Additional Site, any adjacent property and/or any part thereof, which are not included as part of the Environmental Information listed in Exhibit L to the Lease, to the extent the same are in Landlord’s reasonable possession or control and such materials will be listed on Attachment B to the First Amendment, and (c) New Tenant shall have a Phase I environmental site assessment prepared by ARCADIS G&M, INC., at New Tenant’s expenses, a copy of which New Tenant shall provide to Landlord prior to the Assignment Date and which shall be listed in said Attachment B.

 

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8. Tenant’s Estoppel . Tenant hereby certifies, represents and warrants to New Tenant and Landlord that:

 

(a) Tenant is the tenant under the Lease, which Lease is in full force and effect and has not been amended or modified prior to the Effective Date, and the copy of the Lease attached hereto as Exhibit A is a true, correct and complete copy of the Lease. There are no agreements, other than the Lease, between Landlord and Tenant with respect to the Lease, the Premises, the Project or the real estate of which the same forms a part.

 

(b) Prior to the date hereof, Tenant has delivered to New Tenant true, accurate and complete copies of any and all subordination, non-disturbance and attornment agreements with regard to the Premises. The consent of the holder(s) of any mortgages and the like referenced therein to this Assignment Agreement and/or the First Amendment is not required expressly therein, nor will the absence of any such consent result in any rights or privileges of Tenant from failing to transfer fully to the New Tenant as contemplated herein, including, without limitation, any right to enforce non-disturbance and attornment agreements running in favor of Tenant thereunder with regard to the Lease, as amended by the First Amendment.

 

(c) For all purposes related to the Lease, the “Commencement Date” under the Lease is November 1, 2000 and the initial “Term” shall expire on October 31, 2010.

 

(d) For all purposes related to the Lease, the aggregate “Construction Costs” shall be $5,748,614.29, the aggregate “Disbursed Construction Allowance” shall be $3,000,000, the aggregate “Excess Disbursed Construction Allowance” shall be $1,000,000, and the initial equal monthly installments of “Improvement Rent” shall be $14,347.09. As of April 1, 2005, the principal of the Excess Disbursed Construction Allowance remaining unpaid is $698,109.13. Attached hereto as Exhibit C and incorporated herein by reference is an amortization schedule of all remaining installments of Improvement Rent due and payable under the Lease after the date hereof.

 

(e) The Base Rent was last paid for the month during which the date hereof occurred. The rate of Base Rent currently in effect is $30,708.79 per month. No payment of the Base Rent is currently past due and owing under the Lease.

 

(f) Tenant’s Share is 36.85%. Tenant’s Share of Operating Expenses for the calendar year 2005 is $74,564.64, and one-twelfth of said sum, which is $6,213.72, was last paid for the month during which the date hereof occurred. The rate of the Improvement Rent currently in effect is $15,669.07 per month. The Improvement Rent was last paid for the month during which the date hereof occurred. The Rent Commencement Date under the Development Rights Agreement is November 1, 2000 and the current rate of the annual Development Rights Rent thereunder, a portion of which is passed through to Tenant under Section 38 of the Lease, is $23,487.60 per annum and Tenant’s Share thereof is $8,655.18. Tenant is not responsible to pay any of the annual rent provided for in the Ground Lease, per Section 38(b) of the Lease. No payment of any Additional Rent is currently past due and owing under the Lease.

 

(g) Prior to the date hereof, Tenant has delivered to New Tenant true, accurate and complete copies of all environmental test, reports, inspections, surveys, samples, studies and other analyses of the Project and/or the Additional Site and/or any part thereof that are in Tenant’s possession or control.

 

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(h) Any improvements, alterations, installations and the like required by the terms of the Lease to be made by Tenant or Landlord have been completed in compliance with the terms thereof. Any Construction Defects have been remedied fully prior to the date hereof.

 

(i) There are no events or conditions existing, which, with notice or the lapse of time or both, could constitute a monetary or other default of the “Tenant” or, to the knowledge of Tenant, the “Landlord” under the Lease.

 

(j) Neither the Project nor the Premises is subject to any lease, tenancy, easement, covenant, restriction, mortgage, lien or other encumbrances to which Tenant is a party or which results from Tenant’s activities at the Project (e.g., a mechanics’ lien) or, to Tenant’s knowledge, to which Tenant is not a party, that would materially interfere with New Tenant’s use and enjoyment of the Premises for purposes of a plant analysis and growth room facility, commercial greenhouse and headhouse. In addition, use of the Premises a plant analysis and growth room facility, commercial greenhouse and headhouse is permissible under all applicable Legal Requirements with regard to zoning and related matters.

 

(k) Tenant has not received any notice of, and has no knowledge of, any violation of any Legal Requirements relating to the use or condition of the Premises (including, without limitation, the buildings, structures, improvements, fixtures and facilities located therein or thereon), the Project, the Additional Site or the real estate of which the Premises forms a part.

 

(l) Tenant has no knowledge of any Hazardous Materials that are presently upon or beneath the Project, except as may be disclosed in the documents delivered by Tenant under Section 8(h) hereof and by Landlord under Section 9(d) hereof. In addition, Tenant has no knowledge of the existence of any Previously Unknown Contamination.

 

(m) Permanent certificates of occupancy or their equivalent required from all governmental authorities have been issued and are in effect for the Premises (including, without limitation, for the operation of the Premises as a plant analysis and growth room facility, commercial greenhouse and headhouse) and have been paid for in full and are fully transferable (without penalty, cost, premium or the consent of any third parties) to New Tenant. Tenant has received no written notice and, to Tenant’s knowledge, is not otherwise aware that it has failed to obtain or renew any licenses, permits, authorizations and approvals required from any governmental agencies for its current business operation at the Premises.

 

(n) To Tenant’s knowledge, the Premises are served by all utilities necessary for electricity, natural gas, water, telephone, sanitary sewers and storm sewers, and all other utility service necessary or required for the present use and operation of the Premises and for use of the Premises as a plant analysis and growth room facility, commercial greenhouse and headhouse, through adjacent public roads and dedicated private and permanent public easements and rights of way and any and all “tap fees” or other connection fees for the use of such utilities have been paid for.

 

(o) There is no claim, suit, litigation, proceeding or action pending or, to Tenant’s knowledge, threatened against Tenant that relates to the Project, the Lease and/or the use or ownership thereof, and Tenant has no knowledge of any basis for any such claim, suit, litigation, proceeding or action.

 

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9. Landlord’s Estoppel . Landlord hereby certifies, represents and warrants to New Tenant that:

 

(a) Landlord is the landlord under the Lease, which Lease is in full force and effect and has not been amended or modified prior to the Assignment Date, and the copy of the Lease attached hereto as Exhibit A is a true, correct and complete copy of the Lease. There are no agreements, other than the Lease, between Landlord and Tenant with respect to the Lease, the Premises, the Project or the real estate of which the same forms a part, that would be binding on New Tenant or New Tenant’s rights and privileges under the Lease after the Assignment Date.

 

(b) Prior to the date hereof, Landlord has delivered to New Tenant true, accurate and complete copies of the Ground Lease and the Development Rights Agreement which are in full force and effect and have not been amended or modified prior to the Assignment Date. As of the date hereof, Landlord has not been able to locate a copy of the Cost Sharing Agreement, but will provide a copy to Tenant if and when it is able to locate the same.

 

(c) Landlord is the ground lessee of the Project under the Ground Lease and its leasehold interest is not currently subject to any mortgages or similar security instruments. To Landlord’s knowledge it has satisfied its construction obligations under Section 5 (Construction of the Initial Improvements) under the Ground Lease and no Event of Default (as defined under the Ground Lease) by Landlord exists as of the date hereof or will exist as of the Assignment Date.

 

(d) There are no events or conditions existing, which, with notice or the lapse of time or both, could constitute a monetary or other material default of the “Landlord” or, to the knowledge of Landlord, the “Tenant” under the Lease.

 

(e) There is no claim, suit, litigation, proceeding or action filed against Landlord or, to Landlord’s knowledge, threatened in a writing received by Landlord that relates to the Project, the Lease and/or the use or ownership thereof.

 

(f) To Landlord’s knowledge, the representations of Tenant in Section 8(c), (d), (e) or (f) above are true, complete or not misleading in any way.

 

10. Brokers . Landlord, Tenant and New Tenant each represents and warrants that neither it nor any of its representatives, employees or agents has dealt or consulted with any real estate broker or agent in connection with the transaction contemplated by this Assignment Agreement or the First Amendment, except for Tenant’s broker, The Staubach Company, for whose commissions Tenant is solely responsible. Each party (the “ Indemnitor ”) hereby agrees to indemnify, defend (by counsel reasonably acceptable to the indemnified party) and hold the other parties harmless against any claim or demand made by any real estate broker or agent claiming to be the procuring cause of this transaction by reason of words or actions of the Indemnitor or Indemnitor’s representative, employee or agent.

 

11. Notices . All notices, demands, requests, consents or approvals which may or are required to be given by either party to the other shall be in writing and shall be deemed given as of the date of personal delivery (including, without limitation, via Federal Express or another reputable overnight delivery service) or as of three (3) days following deposit in the United States Certified or Registered Mail, postage prepaid, to Landlord and Tenant at their respective addresses set forth in the Basic Lease Provisions of the Lease and to New Tenant at the address set forth in paragraph 10 of the First Amendment, or to such other address as either party may designate in writing from time to time.

 

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12. Miscellaneous . The recitals to this Assignment Agreement are incorporated herein by reference. This Assignment Agreement shall be binding on and shall inure to the benefit of the parties named herein and to their respective successors and assigns. Section 6 hereof shall also be binding upon any tenant and its assignees and subtenants under the Office/Lab Lease, and Tenant shall be responsible for insuring that the appropriate agreements are put in place to insure such binding effect. This Assignment Agreement embodies the entire agreement between the parties with respect to the subject of this Assignment Agreement and it supersedes any prior agreements, whether written or oral, with respect to the same. No amendment or modification of this Assignment Agreement shall be binding or effective unless in writing and signed by the parties hereto. The failure of any party to insist upon prompt and strict performance of any of the terms, conditions or undertakings of this Assignment Agreement, or to exercise any right herein conferred, in any one or more instances, shall not be construed as a waiver of the same or any other term, condition, undertaking or right. This Assignment Agreement shall be construed and interpreted according to the laws of the State of North Carolina. The parties each warrant and represent that said party is duly authorized to execute, deliver and perform this Assignment Agreement and all documents and instruments and transactions contemplated hereby and incidental hereto. This Assignment Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all such counterparts, taken together, shall constitute but one and the same instrument.

 

[The remainder of this page is intentionally blank.]

 

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

 

 

 

SCHEDULE OF EXHIBITS

 

 

 

EXHIBIT A

 

THE LEASE

 

[Attach the Lease]

 

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LEASE AGREEMENT

[Phase 1B: Greenhouse]

 

This LEASE AGREEMENT (this “ Lease ”), dated April 3, 2000 (the “ Effective Date ”), is made between ARE-104 ALEXANDER ROAD, LLC, a Delaware limited liability company (“ Landlord ”), and PARADIGM GENETICS, INC., a Delaware corporation (“ Tenant ”).

 

RECITALS

 

A. Landlord has entered into a Ground Lease Agreement dated as of July 27, 1999 (the “ Original Ground Lease ”), with Triangle Service Center, Inc., a North Carolina corporation (“ Ground Lessor ”), pursuant to which Landlord has ground leased approximately 6.084 acres of land within the Triangle Park Research Center (which is located within Research Triangle Park (“ RTP ”), Durham County, North Carolina), as more fully described in Exhibit A-1 (the “ Site ”). The Original Ground Lease is evidenced of record by a certain Memorandum of Ground Lease dated as of July 27, 1999, and recorded July 27, 1999, in Book 2684, Page 795 of the Official Records of Durham County, North Carolina (the “ Official Records ”). In addition, Ground Lessor and Landlord have entered into or, concurrently with the execution of this Lease, are entering into, (i) a certain Agreement Regarding Allocation of Development Rights (the “ Development Rights Agreement ”) (which will be evidenced of record by a certain Memorandum of Agreement Regarding Allocation of Development Rights to be recorded in the Official Records), and (ii) a certain First Amendment to Ground Lease Agreement (the “ Ground Lease Amendment ”). The Original Ground Lease, the Ground Lease Amendment, and any other subsequent amendments or modifications thereto shall be referred to collectively as the “ Ground Lease ”.

 

B. Landlord desires to lease to Tenant, and Tenant desires to lease from Landlord, certain improvements that Landlord is hereby agreeing to cause to be constructed, or to permit to be constructed, on the Site, including, but not limited to, a plant analysis and growth room facility, a commercial greenhouse, and a headhouse (collectively, the “Greenhouse” ).

 

C. Landlord and Tenant have entered into a separate Amended and Restated Lease Agreement (the “ Office / Lab Lease ”) for the lease of certain other improvements that Landlord is agreeing to cause to be constructed, or to permit to be constructed, on other parts of the Site, including, but not limited to, a first-class scientific research and development building (the “ Office / Lab ”).

 

BASIC LEASE PROVISIONS

 

 

 

 

 

 

Tenant’s Notice Address:

 

104 Alexander Dr., Building 2

RTP, North Carolina 27709

Attention: Mr. Ian Howes

                 Chief Financial Officer

 

The following Exhibits are or will be attached hereto and are incorporated herein by this reference:

 

 

AGREEMENT

 

NOW, THEREFORE, in consideration of the mutual covenants and agreements contained in this Lease, the receipt and legal sufficiency of which are hereby acknowledged by the parties hereto, Landlord and Tenant hereby agree as follows:

 

1. Lease of Premises. Landlord hereby leases the Premises to Tenant and Tenant hereby leases the Premises from Landlord, effective as of the “ Commencement Date ” (as defined below) for the Term set forth in the Basic Lease Provisions, upon and subject to all of the terms and conditions of the Ground Lease. The Site and all improvements thereon and appurtenances thereto are collectively referred to herein as the “ Project ”, and the portions of the Project that are for the non-exclusive use of Tenant and the guests, invitees, licensees, and other authorized users of the Project (including, without limitation, Ground Lessor and any approved subtenants) are collectively referred to herein as the “ Common Areas ” (all as more fully described in Exhibit B ). Landlord reserves the right to modify the Common Areas, provided that such modifications do not materially adversely affect Tenant’s use of the Premises for the Permitted Use.

 

2. Delivery; Commencement Date; Acceptance of Premises .

 

(a) Landlord shall use commercially reasonable efforts to deliver the Premises to Tenant (“ Deliver ” or “ Delivery ”) on or before the Target Commencement Date,

 

 

with “ Landlord’s Work ” (as defined in the Work Letter attached as Exhibit C (the “ Work Letter ”)) “ Substantially Completed ” (as defined in the Work Letter). If Landlord Delivers the Premises Substantially Completed before the Target Commencement Date, Tenant shall pay to Landlord, in addition to any “ Rent ” (as defined in Section 3(c) below) then due under this Lease, a sum equal to 1/2 day of Rent for each day that such Delivery precedes the Target Commencement Date. If Landlord fails to timely Deliver the Premises Substantially Completed, Landlord shall not be liable to Tenant for any loss or damage resulting therefrom, and this Lease shall not be void or voidable, except as may be expressly provided otherwise herein.

 

(i) Notwithstanding the foregoing, if Landlord does not Deliver the Premises Substantially Completed by the Target Commencement Date and the aggregate delay that is due solely to “ Landlord Caused Delays ” (as defined below) exceeds 150 days, this Lease shall be voidable by Tenant by giving Landlord “ Notice ” (as defined in Section 44(a) below) of Tenant’s election to void this Lease within 5 business days after such 120 ^th day, and if voided: (A) the Security Deposit (if paid) and the Demolition Deposit (if paid) shall be returned to Tenant and (B) neither Landlord nor Tenant shall have any further rights, duties, or obligations under this Lease, except with respect to provisions that expressly survive termination of this Lease (as provided in Section 28 below). Except as may be expressly provided otherwise herein, Tenants right to void this Lease shall be Tenants sole and exclusive remedy at law, in equity, or otherwise for Landlord’s failure to timely Deliver the Premises Substantially Completed. If Tenant does not give Landlord Notice of Tenant’s election within the required 5 business days, Tenant’s right to void this Lease shall terminate and this Lease shall continue in full force and effect. If Landlord Delivers the Premises Substantially Completed after the Target Commencement Date but the aggregate delay that is due solely to Landlord Caused Delays does not exceed 150 days, or the aggregate delay that is due solely to Landlord Caused Delays exceeds 150 days but Tenant does not timely elect to void this Lease, Tenant shall be entitled to an abatement of Rent equal to 1 day of Rent for each day of the delay that is due solely to Landlord Caused Delays. As used herein, the term “ Landlord Caused Delay ” shall mean any delay for a reason other than a “ Tenant Caused Delay ” (as defined in the Work Letter) or a “ Force Majeure Delay ” (as defined in the Work Letter).

 

(ii) Notwithstanding the foregoing, (A) if Landlord Delivers the Premises Substantially Completed after the Target Commencement Date and the aggregate delay that is due solely to Force Majeure Delays does not exceed 120 days, Tenant shall not be entitled to any abatement of Rent for the delay that is due solely to Force Majeure Delays, (B) if Landlord Delivers the Premises Substantially Completed after the Target Commencement Date and the aggregate delay that is due solely to Force Majeure Delays exceeds 120 days but does not exceed 240 days, Tenant shall be entitled to an abatement of Rent equal to 1/2 day of Rent for each day of Force Majeure Delays in excess of 120 days, and (C) if Landlord Delivers the Premises Substantially Completed after the Target Commencement Date and the aggregate delay that is due solely to Force Majeure Delays exceeds 240 days, Tenant shall be entitled to an abatement of Rent equal to 1 day of Rent for each day of Force Majeure Delays in excess of 240 days; provided , however , that, for purposes of this Section 2(a)(ii) , Force Majeure Delays shall not include any delays resulting from a “ Force Majeure ” (as defined in Section 34 below) that is solely attributable to “ Pre-Existing Contamination ” (as defined in Section 19.a.xii. of the Ground Lease).

 

(b) The “ Commencement Date ” shall be earliest of: (i) the date Landlord Delivers the Premises Substantially Completed; (ii) the date Landlord could have Delivered the Premises Substantially Completed but for Tenant Caused Delays or Force Majeure Delays; and (iii) the date Tenant conducts any business in any part of the Premises; provided , however , that

 

 

for purposes of this Section 2(b) , Force Majeure Delays shall not include any delays resulting from a Force Majeure that is solely attributable to Pre-Existing Contamination. Upon either party’s request, the other party shall execute and deliver a written acknowledgment of the Commencement Date and the expiration date of the Term, when the same have been established, and shall attach the acknowledgment to this Lease as Exhibit D ; provided , however , either party’s failure to execute and deliver such acknowledgment shall not affect the other party’s rights hereunder.

 

(c) Except as may be expressly provided otherwise in the Work Letter, Tenant shall accept the Premises in their condition as of the Commencement Date, subject to all applicable laws, ordinances, regulations, covenants, and restrictions. Neither Landlord nor any agent of Landlord has made or will make any representation or warranty with respect to the condition of any or all of the Premises or the Project and/or the suitability of the Premises for the conduct of Tenant’s business, and Tenant waives any implied warranty that the Premises are suitable for Tenant’s intended purposes. Except as may be expressly provided otherwise in the Work Letter: (i) Landlord has no obligation for any defects in the Premises; and (ii) Tenant’s taking possession of the Premises shall be conclusive evidence that Tenant accepts the Premises and that the Premises were in good condition at the time possession was taken. Any occupancy of the Premises by Tenant before the Commencement Date shall be subject to all of the terms and conditions of this Lease, including the obligation to pay Rent.

 

3. Rent .

 

(a) Base Rent . Tenant shall pay to Landlord equal monthly installments of annual base rent, which annual base rent initially shall be equal to $315,000.00 and which equal monthly installments of annual base rent initially shall be equal to $26,250.00 (“ Base Rent ”).

 

(b) Additional Rent . In addition to Base Rent, Tenant shall pay to Landlord all of the following as additional rent (“ Additional Rent ”):

 

(i) Tenants Share (as set forth in the Basic Lease Provisions) of “ Operating Expenses ” (as defined in Section 5 below). Tenant’s Share shall be reasonably adjusted by Landlord following a measurement of the rentable square footage of the Premises and the Project to be done by Landlord within 60 days of the Commencement Date, or as soon as reasonably possible thereafter, and shall be subject to further adjustment for changes in the physical size of the Premises or the Project occurring thereafter (any measurement required under this Lease shall be performed in accordance with the 1996 Standard Method of Measuring Floor Area in Office Buildings as adopted by the Building Owners and Managers Association (ANSI/BOMA Z65.1-1996)).

 

(ii) “ Improvement Rent ” (as defined below). As more fully described in the Work Letter, Landlord is making available to Tenant an allowance (the “ Construction Allowance ”) to be used by Tenant solely for the costs of designing, permitting, and constructing the Greenhouse, which costs shall include, but not be limited to, payments to surveyors, engineers, architects, consultants, contractors, sub-contractors, and all other persons and laborers of every class providing services, performing labor, or furnishing skill or other necessary services used in or contributing to such construction, the cost of materials or equipment used or consumed in such construction, the cost (including legal and engineering fees and disbursements) of obtaining, maintaining, renewing, or revising permits, licenses, approvals, certificates, or other entitlements, premiums and fees for all insurance maintained by Landlord in connection with the construction, initial financing and debt service (including

 

 

principal), all “ Administrative Rent ” (as defined in Section 6.1 of the Work Letter), and all “ Taxes ” (as defined in Section 9 below) that become due and payable while construction is being performed (collectively, the “ Construction Costs ”). The maximum amount of the Construction Allowance shall be $3,000,000.00 (adjusted for any amounts actually received by Landlord as reimbursement under Sections 19.b. or 19.d. of the Ground Lease and retained by Landlord pursuant to the terms and conditions of a certain Cost Sharing Agreement dated July 27,1999, between Landlord and Tenant (the “ Cost Sharing Agreement ”)); Tenant hereby acknowledges and agrees that the aggregate Construction Costs may exceed the Construction Allowance (as adjusted and actually disbursed to or for the benefit of Tenant, the “ Disbursed Construction Allowance ”)), and that Tenant may be responsible for any such excess, as provided in the Work Letter (including, but not limited to, Sections 6.2 and 6.4 thereof). Tenant shall pay to Landlord equal monthly installments of improvement rent (“ Improvement Rent ”), which installments of Improvement Rent are intended generally to constitute repayment of any portion of the Disbursed Construction Allowance that exceeds $2,000,000.00 (the “ Excess Disbursed Construction Allowance ”) and shall be equal to the equal monthly payments that would be necessary to amortize fully the Excess Disbursed Construction Allowance over a period of 120 months at an annual interest rate of 12.00%. For illustration purposes only, if the Excess Disbursed Construction Allowance is $1,000,000.00, the equal monthly installments of Improvement Rent will be $14,347.09. Upon either party’s request, the other party shall execute and deliver a written acknowledgment of the aggregate Construction Costs, the Disbursed Construction Allowance, the Excess Disbursed Construction Allowance, and the initial equal monthly installments of Improvement Rent computed on such Excess Disbursed Construction Allowance, when the same have been established, and shall attach the acknowledgment to this Lease as Exhibit E ; provided , however , either party’s failure to execute and deliver such acknowledgment shall not affect the other party’s rights hereunder.

 

Notwithstanding the foregoing, Tenant, at any time after the 36th month of the Term, shall have the right to prepay, without penalty or premium, all of the Improvement Rent that will be due for the remainder of the Term, which prepayment (the “ Improvement Rent Prepayment ”) shall be equal to the balance of the Excess Disbursed Construction Allowance that has not been amortized through monthly installments of Improvement Rent as of the end of the calendar month in which such full payment is actually made to Landlord by Tenant (the “ Prepayment Month ”). Under no circumstances will Tenant have the right to make a partial prepayment of Improvement Rent. Rent adjustments (pursuant to Section 4 below) shall not be considered when calculating the balance of the Excess Disbursed Construction Allowance that has not been amortized. Tenant may exercise this prepayment right only by giving Notice to Landlord of Tenant’s election to exercise such right at least 12 months prior to the expiration of the Prepayment Month. For illustration purposes only, if the Excess Disbursed Construction Allowance is $1,000,000.00 and the Prepayment Month is the 36th month of the Term, the Improvement Rent Prepayment will be $812,740.72. Tenant shall have no obligation to make any monthly payments of Improvement Rent after Tenant makes the Improvement Rent Prepayment. The Improvement Rent Prepayment shall be deemed fully earned by Landlord and non-refundable to Tenant.

 

(iii) Any and all other amounts Tenant assumes or agrees to pay under the provisions of this Lease, including, without limitation, any and all other sums that may become due by reason of any “ Default ” (as defined in Section 20 below) or other failure to comply with the agreements, terms, covenants and conditions of this Lease to be performed by Tenant, after any applicable notice and cure period.

 

 

(c) Rent. Base Rent and Additional Rent shall together be denominated “ Rent ”. All monthly installments of Rent shall be paid in advance on or before the 1 ^st day of each calendar month during the Term and during any Term Extension. Payments of Rent for any fractional calendar month shall be prorated and paid on the basis of a 30-day month. Tenant’s obligation to pay Rent and other sums to Landlord under this Lease and Landlord’s obligations under this Lease shall be separate and independent obligations. Except to the extent, and only to the extent, expressly provided otherwise in Sections 2(a)(i) and (ii) above, all Rent shall be paid to Landlord without demand, abatement, reduction, deduction, or set-off, in lawful money of the United States of America at the office of Landlord for payment of Rent set forth in the Basic Lease Provisions, or to such other person or at such other place as Landlord may from time to time designate in writing.

 

4. Rent Adjustments. Base Rent and Improvement Rent shall be increased on the 1 ^st annual anniversary of the 1 ^st day of the 1 ^st full month during the Term, and on each annual anniversary of such date thereafter during the remainder of the Term, by (i) multiplying the Base Rent payable immediately before such adjustment by the Rent Adjustment Percentage applicable to Base Rent and adding the resulting amounts to the Base Rent payable immediately before such adjustment and (ii) multiplying the Improvement Rent payable immediately before such adjustment by the Rent Adjustment Percentage applicable to Improvement Rent and adding the resulting amounts to the Improvement Rent payable immediately before such adjustment. Base Rent and Improvement Rent, as so adjusted, shall thereafter be due as provided herein. Rent adjustments for any fractional calendar month shall be prorated.

 

5. Operating Expense Payments. No later than 10 business days prior to the 1 ^st day of the 1 ^st full month during the Term and no later, than 30 days prior to the 1 ^st day of each calendar year during the Term and any Term Extension, Landlord shall deliver to Tenant a written estimate of Operating Expenses for the remainder of the calendar year or for the following calendar year, as the case may be (the “ Annual Estimate ”), which may be revised by Landlord from time to time during the relevant calendar year. During each month of the Term and any Term Extension, Tenant shall pay Landlord an amount equal to 1/12th of the annual cost, as reasonably estimated by Landlord from time to time, of Tenant’s Share of Operating Expenses for the Project. The term “ Operating Expenses ” means all reasonable costs and expenses of any kind or description whatsoever incurred or accrued by Landlord with respect to the Project (including, without limitation, the rent (as the same may be adjusted from time to time) and all expenses to be paid or reimbursed by Landlord under the Development Rights Agreement, maintenance and repair costs, insurance premiums (for the insurance described in Section 17 below), Taxes, “ Utilities ” (as defined in Section 11 below), costs of capital repairs and improvements (amortized over the useful life of the improvement, not to exceed 7 years), reasonable reserves consistent with good business practice for future repairs and replacements, and administrative rent for management services in the amount of 2.50% of the then applicable Base Rent), excluding only:

 

(a) the original construction costs of the Project (including Construction Costs);

 

(b) capital expenditures for expansion of the Project or for the remodeling or refurbishment of the Project to a materially higher standard than existed on the Commencement Date;

 

 

(c) costs directly and solely attributable to correcting a “ Construction Defect ” (as defined in the Work Letter);

 

(d) interest and amortization of funds borrowed by Landlord, whether secured or unsecured;

 

(e) depreciation of the Project (except for capital improvements the cost of which are specifically includable in Operating Expenses);

 

(f) salaries, wages, or other compensation paid to officers and employees of Landlord who are not assigned to the operation, management, maintenance, or repair of the Project;

 

(g) any expenses otherwise includable within Operating Expenses to the extent actually reimbursed by persons other than Tenant;

 

(h) legal expenses incurred in the negotiation of this Lease;

 

(i) costs relating to maintaining Landlord’s existence, either as a corporation, partnership, or other entity;

 

(j) costs (including “ Legal Fees ” (as defined in Section 44(k) below)) arising from the enforcement of this Lease or claims, disputes, or potential disputes pertaining to Landlord and/or the Project;

 

(k) costs incurred by Landlord due to the violation by Landlord of the terms and conditions of this Lease;

 

(l) costs incurred by Landlord due to the violation by Landlord of any “ Legal Requirements ” (as defined in Section 7 below);

 

(m) tax penalties incurred as a result of Landlord’s negligence, inability, or unwillingness to make payment and/or to file any tax or informational returns when due;

 

(n) overhead or profit increment paid to Landlord or to subsidiaries or affiliates of Landlord for the provision of goods and/or services in or to the Project, but only to the extent the same exceeds the overhead or profit increment that would be paid to unaffiliated third parties on a competitive basis for providing the same goods and/or services;

 

(o) costs arising from Landlord’s charitable or political contributions;

 

(p) costs incurred in the sale or refinancing of the Project;

 

(q) net income, franchise, capital stock, estate, or inheritance taxes; and

 

(r) any costs of constructing, repairing, or maintaining any new improvement within the Project, or of providing any new and recurring service, where the new improvement or the new service is not requested or approved by Tenant, and (i) there is or will be no material benefit to Tenant from the new improvement or the new service, or (ii) regardless of the benefit to Tenant, construction of the new improvement commences or the new service is first provided

 

 

in the final 12 months of the Term or the first Term Extension and Tenant has elected not to exercise its then applicable Extension Right.

 

Within 120 days after the end of each calendar year, Landlord shall furnish to Tenant a statement (an “ Annual Statement ”) showing in reasonable detail: (i) the total and Tenant’s Share of actual Operating Expenses for the previous calendar year, and (ii) the total of Tenant’s payments in respect of Operating Expenses for such year. If Tenants Share of actual Operating Expenses for such year exceeds Tenants payments of Operating Expenses for such year, the excess shall be immediately due and payable by Tenant as Rent. If Tenants payments of Operating Expenses for such year exceed Tenant’s Share of actual Operating Expenses for such year, Landlord shall, in its sole and absolute discretion, either (x) credit the excess amount to the next succeeding installments of estimated Operating Expenses due hereunder, or (y) pay the excess to Tenant within 30 days after delivery of such Annual Statement.

 

The Annual Statement shall be final and binding upon Tenant unless Tenant, within 30 days after Tenants receipt thereof, shall contest any item therein by giving Notice to Landlord, specifying each item contested and the reason therefor. If, during such 30-day period, Tenant reasonably and in good faith questions or contests the correctness of Landlord’s statement of Tenants Share of Operating Expenses, Landlord will provide Tenant access to Landlord’s books and records and such information as Landlord reasonably determines to be responsive to Tenant’s questions. If, after Tenants review of such information, Landlord and Tenant cannot agree upon the amount of Tenant’s Share of Operating Expenses, then Tenant shall have the right to have an independent public accounting firm selected from among the 6 largest in the United States, hired by Tenant (at Tenant’s sole cost and expense) and approved by Landlord (which approval shall not be unreasonably withheld or delayed), audit and/or review such Landlord’s books and records for the year in question (the “ Independent Review ”). The results of any such Independent Review shall be binding on Landlord and Tenant If the Independent Review shows that Tenant’s pro rata share of the Operating Expenses actually paid by Tenant for the calendar year in question exceeded Tenant’s obligations for such calendar year, Landlord shall at Landlord’s option either (i) credit the excess amount to the next succeeding installments of estimated Operating Expenses due hereunder, or (ii) pay the excess to Tenant within 30 days after delivery of the results of such Independent Review, except that after expiration or termination of the Term or any Term Extension, Landlord shall pay the excess to Tenant after deducting all other amounts due Landlord. If the Independent Review shows that Tenant’s payments of Tenants Share of Operating Expenses for such calendar year were less than Tenant’s obligation for the calendar year, Tenant shall pay the deficiency to Landlord within 30 days after delivery of the results of such Independent Review. If the Independent Review shows that Tenant has overpaid Tenant’s pro rata share of Operating Expenses by more than 5.00%, then Landlord shall reimburse Tenant for all costs incurred by Tenant for the Independent Review. Operating Expenses for the calendar years in which Tenant’s obligation to share therein begins and ends shall be prorated.

 

6. Security Deposit.

 

(a) Tenant shall deposit with Landlord on the Commencement Date security for the performance of all of Tenant’s obligations hereunder (the “ Security Deposit ”) in an amount equal to 6 initial monthly payments of Base Rent plus 6 initial monthly payments of Improvement Rent (the “ Original Security Amount ”). Upon either party’s request, the other party shall execute and deliver a written acknowledgment of the Original Security Amount when the same has been established, and shall attach the acknowledgment to this Lease as

 

 

Exhibit F ; provided , however , either party’s failure to execute and deliver such acknowledgment shall not affect the other party’s rights hereunder. At least one-sixth of the Security Deposit shall be in cash and up to five-sixths of the Security Deposit may be in the form of an unconditional and irrevocable letter of credit (a “ Letter of Credit ”); provided , however , that the entire Security Deposit may be in the form of a Letter of Credit at any time after Tenant completes an initial public offering of Tenant’s capital shares. Landlord shall hold the cash portion of the Security Deposit in an interest bearing account (which may contain Landlord’s own funds), with any interest accruing on such cash portion being for Tenant’s benefit. Any Letter of Credit that constitutes a portion of the Security Deposit: (i) shall be in form and substance satisfactory to Landlord, in Landlord’s sole and absolute discretion; (ii) shall name Landlord as sole beneficiary; (iii) shall not refer to this Lease, the Project, or the Premises or any circumstances, factors, or rights that might be related thereto, but shall expressly allow Landlord to draw upon the Letter of Credit in any amount, and at any time and from time to time, simply by delivering to the issuer a clean sight draft on the Letter of Credit, without any other demand, statement, or other representation regarding Landlord’s rights under this Lease or with respect to the Letter of Credit; (iv) shall be drawable on an FDIC-insured financial institution satisfactory to Landlord, in Landlord’s reasonable discretion, with any draws to be payable from such financial institution’s own immediately available funds; (v) shall be drawable at the branch or office of the issuer that Landlord may choose, in Landlord’s sole and absolute discretion; and (vi) shall expressly allow Landlord to draw the full amount of the Letter of Credit if Tenant does not provide Landlord with a substitute Letter of Credit complying with all of the requirements hereof at least 10 days before the stated expiration date of such Letter of Credit.

 

(b) If, at any time during the Term or any Term Extension, Tenant satisfies both the “ Net Worth Test ” (as defined below) and the “ Profitability Test ” (as defined below) (each, a “ Reduction Requirement ” and collectively, the “ Reduction Requirements ”), then the amount of the Security Deposit shall be reduced to an amount equal to one-half of the amount of the Security Deposit then held by Landlord. For purposes of this provision, the “ Net Worth Test ” shall be deemed satisfied at any time that (i) Tenant’s stock is listed on either the New York Stock Exchange or the NASDAQ stock market, and (ii) Tenant has maintained a net worth of at least $100,000,000.00, using a market capitalization analysis based on the daily closing trading price of Tenants common stock, for the immediately preceding consecutive 90 business days. For purposes of this provision, the “ Profitability Test ” shall be deemed satisfied at any time that (x) Tenant’s net revenues after taxes for the immediately preceding fiscal year exceed $1,000,000.00, and (y) the aggregate amount of Tenant’s “ Liquid Assets ” (as defined below), as certified by a nationally recognized, independent public accounting firm or as demonstrated in annual audited financial statements, equals or exceeds Tenants anticipated expenses for the shorter of (1) 30 months and (2) the remainder of the Term. For purposes of the Profitability Test, (A) “ Liquid Assets ” shall mean all cash, cash equivalents, liquid short term investments, and short term accounts receivables from unrelated third parties, and (B) the phrase “ remainder of the Term ” shall include any period for which Tenant has an “ Extension Right ” (as defined in Section 41(a) below), regardless of whether any such Extension Right has been exercised, unless such Extension Right has been waived or otherwise is no longer exercisable (provided , however , that under no circumstances shall the “ remainder of the Term ” be fewer than 12 months, unless there are fewer than 3 months actually remaining in the Term and any Term Extension that may be available to Tenant, in which case the “ remainder of the Term ” shall be deemed to be 6 months). Within 60 days after Tenant provides Landlord with written evidence reasonably satisfactory to Landlord demonstrating that Tenant then satisfies both of the Reduction Requirements, Landlord shall pay to Tenant (or, at Landlord’s option, to the last assignee of Tenant’s interest hereunder) one-half of the amount of the Security Deposit then held by Landlord, including one-half of the interest that has accrued on the Security Deposit, if

 

 

any (provided , however , that if any portion of the Security Deposit is then in the form of a Letter of Credit, Landlord will return such Letter of Credit to Tenant upon Tenants delivery to Landlord of cash (if then required hereunder) plus a substitute Letter of Credit complying with all of the requirements hereof in an aggregate amount equal to one-half of the amount of the Security Deposit held by Landlord immediately prior to Landlord’s return of the Letter of Credit). This reduced amount shall be deemed to be the amount of the “Security Deposit” for all purposes related to this Lease from and after the date that Landlord returns to Tenant any portion of the Security Deposit then held by Landlord in accordance with this provision. Notwithstanding the foregoing, the Security Deposit shall be increased to an amount equal to twice the amount of the Security Deposit then held by Landlord if there is a Default or if Tenant fails to continue to satisfy both of the Reduction Requirements. Landlord shall have the right (not to be exercised more than twice each calendar year) to request written evidence from Tenant demonstrating that Tenant continues to meet both of the Reduction Requirements. Tenant shall pay to Landlord the amount of the required increase in the Security Deposit within 15 days after Landlord gives Tenant written demand to do so (provided , however , that if any portion of the Security Deposit is then in the form of a Letter of Credit, Landlord will return such Letter of Credit to Tenant upon Tenant’s delivery to Landlord of cash (if then required hereunder) plus a substitute Letter of Credit complying with all of the requirements hereof in an aggregate amount equal to twice the amount of the Security Deposit held by Landlord immediately prior to Landlord’s return of the Letter of Credit). This increased amount shall be deemed to be the amount of the “Security Deposit’ for all purposes related to this Lease from and after the date that Landlord gives Tenant written demand to increase the amount of the Security Deposit in accordance with this provision.

 

(c) If, at any time during the Term, Tenant makes the improvement Rent Prepayment, then the amount of the Security Deposit shall be reduced by an amount equal to (i) 6 initial monthly payments of Improvement Rent if, at that time, the Security Deposit has not been reduced in accordance with Section 6(b) above, and (ii) 3 initial monthly payments of Improvement Rent if, at that time, the Security Deposit has been reduced in accordance with Section 6(b) above. Within 30 days after Tenant makes the Improvement Rent Prepayment, Landlord shall pay to Tenant (or, at Landlord’s option, to the last assignee of Tenant’s interest hereunder) an amount equal to the required reduction in the amount of the Security Deposit, including the interest that has accrued on such amount, if any (provided , however , that if any portion of the Security Deposit is then in the form of a Letter of Credit, Landlord will return such Letter of Credit to Tenant upon Tenant’s delivery to Landlord of cash (if then required hereunder) plus a substitute Letter of Credit complying with all of the requirements hereof in an aggregate amount equal to the amount of the Security Deposit held by Landlord immediately prior to Landlord’s return of the Letter of Credit less the required reduction in such amount). This reduced amount shall be deemed to be the amount of the “ Security Deposit ” for all purposes related to this Lease from and after the date that Landlord returns to Tenant any portion of the Security Deposit in accordance with this provision.

 

(d) Landlord shall hold the Security Deposit as security for the performance of Tenant’s obligations under this Lease. The Security Deposit is not an advance rental deposit or a measure of Landlord’s damages in case of a Default. At any time that Landlord reasonably believes that a Default has occurred and remains uncured, Landlord may use all or any part of the Security Deposit (including accrued interest, if any) to pay or perform any obligation of Tenant under this Lease or to compensate Landlord for any loss or damage resulting from any Default, without prejudice to any other remedy provided herein or provided by law. Upon any such use of all or any portion of the Security Deposit, Tenant shall deposit with Landlord, within 5 days after Landlord gives Tenant a written demand therefor, cash (or, if appropriate, a

 

 

substitute Letter of Credit complying with all of the requirements hereof) in the amount that will restore the Security Deposit to its required amount. Upon 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 periods prior to the filing of such proceedings. Tenant hereby waives the provisions of any law, now or hereafter in force, that provide that Landlord may claim from a security deposit only those sums reasonably necessary to remedy defaults in the payment of rent, to repair damage caused by Tenant, or to clean the leased premises, it being agreed that Landlord may claim, in addition, those sums reasonably necessary to compensate Landlord for any other loss or damage, foreseeable or unforeseeable, caused by the act or omission of Tenant or any officer, employee, agent or invitee of Tenant

 

(e) If Landlord transfers its interest in the Project or this Lease, Landlord shall either (i) transfer any balance of the Security Deposit then held by Landlord (including accrued interest, if any) to a person or entity assuming Landlord’s obligations under this Section, or (ii) pay to Tenant any balance of the Security Deposit then held by Landlord (including accrued interest, if any). Upon the transfer to such transferee or the payment to Tenant, Landlord shall have no further obligation with respect to the Security Deposit, and Tenant’s right to the Security Deposit shall apply solely against Landlord’s transferee.

 

(f) Landlord’s obligation with respect to the Security Deposit is that of a debtor, not a trustee. The Security Deposit shall be the property of Landlord, but shall be paid to Tenant when Tenant’s obligations under this Lease have been completely fulfilled. If Tenant and all assignees of Tenant’s interest hereunder fully perform every provision of this Lease to be performed by Tenant and return the Premises to Landlord upon the expiration or earlier termination of this Lease, Landlord shall pay to Tenant (or, at Landlord’s option, to the last assignee of Tenant’s interest hereunder) any balance of the Security Deposit then held by Landlord (including accrued interest, if any) within 60 days after the expiration or earlier termination of this Lease.

 

7. Use. The Premises shall be used solely for the Permitted Use set forth in the Basic Lease Provisions and for lawful purposes incidental thereto, all in compliance with all laws, orders, judgments, ordinances, regulations, codes, directives, permits, licenses, covenants and restrictions now or hereafter applicable to the Premises, and the use and occupancy thereof (collectively, “ Legal Requirements ”). Tenant, within 5 days’ after Notice from Landlord, shall cause to be discontinued any use of the Premises that is declared by any governmental authority haying jurisdiction to be a violation of any Legal Requirement. Provided that Tenant has prior knowledge of the then current terms of Landlord’s insurance coverage with respect to the Project, (i) Tenant will not use or permit the Premises to be used for any purpose or in any manner that would void Tenant’s or Landlord’s insurance, increase the insurance risk, or cause the disallowance of any sprinkler or other credits, and Tenant, within 5 days’ after Notice from Landlord, shall cause to be discontinued any such use, and (ii) Tenant shall reimburse Landlord promptly upon demand for any additional premium charged for any insurance policy maintained by Landlord as a result of Tenant’s failure to comply with the provisions of this Section. Tenant will use the Premises in a careful, safe and proper manner and will not commit waste, overload the floor or structure of the Premises, subject the Premises to uses that would damage the Premises or obstruct or interfere with the rights of Landlord or other guests, invitees, licensees, or other authorized users of the Project, including conducting or giving notice of any auction, liquidation, or going out of business sale on the Premises, or using or allowing the Premises to be used for any unlawful purpose. Tenant shall cause any office equipment or machinery to be installed in the Premises so as to reasonably prevent sounds or vibrations therefrom from extending into Common Areas or other space in the

 

 

Project Tenant shall not place any equipment weighing 500 pounds or more in or upon the Premises or transport or move such items through the Common Areas of the Project or in the Project elevators without the prior written consent of Landlord. Except as may be provided under the Work Letter, Tenant, without the prior written consent of Landlord, shall not use the Premises in any manner that will require ventilation, air exchange, heating, gas, steam, electricity or water beyond the existing capacity of the Project as proportionately allocated to the Premises and as usually furnished for the Permitted Use.

 

Tenant, at its sole expense, shall make any alterations or modifications, to the interior or the exterior of the Premises or the Project, that are required by Legal Requirements (including, without limitation, compliance of the Premises with the Americans With Disabilities Act, 42 U.S.C. § 12101, et seq . (together with regulations promulgated pursuant thereto, “ADA” )) related to Tenants use or occupancy of the Premises, provided that the foregoing obligation shall not apply to the extent any non-compliance with Legal Requirements is due to a Construction Defect. Notwithstanding any other provision herein to the contrary, Tenant shall be responsible for any and all demands, claims, liabilities, losses, costs, expenses, actions, causes of action, damages or judgments, and all reasonable expenses incurred in investigating or resisting the same (including, without limitation, Legal Fees) (collectively, “Claims” ) arising out of or in connection with Legal Requirements and Tenant shall indemnify, defend, hold and save Landlord harmless from and against any and all Claims arising out of or in connection with any failure of the Premises to comply with any Legal Requirement, except to the extent and only to the extent, a Claim is attributable to a Construction Defect or to the gross negligence or willful misconduct of Landlord.

 

8. Holding Over. If, with Landlord’s express written consent, Tenant retains possession of the Premises after the expiration or earlier termination of this Lease, such possession, unless otherwise agreed in writing, shall be subject to immediate termination by Landlord at any time, and all of the other terms and provisions of this Lease (including, without limitation, the adjustment of Rent pursuant to Section 4 hereof but excluding any expansion or renewal option or other similar right or option) shall remain in full force and effect during such holdover period, and in such case Tenant shall continue to pay Rent in the amount payable upon the date of the expiration or earlier termination of this Lease or such other amount as Landlord may indicate, in Landlord’s sole and absolute discretion, in such written consent. All other payments shall continue under the terms of this Lease. If Tenant remains in possession of the Premises after the expiration or earlier termination of this Lease without the express written consent of Landlord, Tenant shall become a tenant at sufferance upon the terms of this Lease except that the monthly rental shall be equal to 150.00% of the Rent in effect during the last 30 days prior to the expiration or earlier termination of this Lease. In addition, Tenant shall be responsible for all damages suffered by Landlord resulting from or occasioned by Tenants holding over. No holding over by Tenant, whether with or without consent of Landlord, shall operate to extend this Lease except as otherwise expressly provided, and this Section shall not be construed as consent for Tenant to retain possession of the Premises. Acceptance by Landlord of Rent after the expiration or earlier termination of this Lease shall not result in a renewal or reinstatement of this Lease.

 

9. Taxes. Tenant shall pay all taxes, levies, assessments and governmental charges of any kind (collectively referred to as “ Taxes ”) imposed by any federal, state, regional, municipal, local, or other governmental authority or agency, including, without limitation, quasi- public agencies (collectively, “ Governmental Authority ”) in connection with the Project and accruing during the Term and any Term Extension, including, without limitation, all Taxes: (i) imposed on or measured by or based, in whole or in part, on rent payable to Landlord under

 

 

this Lease and/or from the rental by Landlord of the Project, (ii) based on the square footage, assessed value or other measure or evaluation of any kind of the Premises or the Project, (iii) assessed or imposed by or on the operation or maintenance of the Premises or the Project (including parking), (iv) assessed or imposed by, or at the direction of, or resulting from statutes or regulations, or interpretations thereof, promulgated by, any Governmental Authority, (v) assessed or imposed by reason of the subsequent occurrence of certain specified events (including, but not limited to, the construction of additional improvements within the Project), or (vi) imposed as a license or other fee on Landlord’s business of leasing space in the Project. Landlord shall cause all Taxes to be billed directly to Tenant by the Governmental Authority, and Landlord shall promptly forward to Tenant any bills for Taxes that Landlord nevertheless may receive. All payments of Taxes shall be made at least 10 business days prior to delinquency, and Tenant shall promptly furnish Landlord with satisfactory evidence that all Taxes have been so paid; provided , however , that Tenant shall not be responsible for evidence of timely payment or for any penalties, surcharges, or similar charges imposed upon delinquency if the delinquency is due solely to any failure by Landlord to forward promptly to Tenant any bills for Taxes that Landlord may receive. If any Taxes cover any period of time beginning before the Commencement Date or ending after the expiration or earlier termination of this Lease, Tenant’s responsibility for such Taxes shall be prorated to cover only that portion of such Taxes applicable to the period that the Lease is in effect, and Landlord shall promptly reimburse Tenant for any overpayment (provided that all Taxes that become due and payable while construction is being performed shall still be included in and a part of Base Construction Costs). Tenant may contest by appropriate legal proceedings the amount, validity, or application of any Taxes or liens securing Taxes. Taxes shall not include any of the following (except to the extent any of the following are in substitution for any Taxes payable hereunder): (x) any net income taxes that may be imposed on Landlord, or (y) any revenue taxes that may be imposed on any sale of Landlord’s interest in the Project. Tenant also shall pay, prior to delinquency, any and all Taxes levied or assessed against any personal property or trade fixtures placed by Tenant in the Premises, whether levied or assessed against Landlord or Tenant If Tenant fails to pay any Taxes, Landlord shall have the right (but not the obligation) to pay the same, and any amount actually so paid by Landlord shall be payable to Landlord on demand as Additional Rent or includable by Landlord as an Operating Expense.

 

10. Parking. At no additional cost to Tenant, Tenant shall have a license to use at least 33 parking spaces at the Site. Such license shall be effective during the Term and any Term Extension, shall be revocable by Landlord upon the expiration or earlier termination of this Lease, and shall be limited by and subject to any changes mandated by Legal Requirements (including zoning restrictions) that may be enacted or first effective after the Effective Date and to any changes in the design of the Premises requested or approved by Tenant and made after the Effective Date.

 

11. Utilities; Services. Subject to the terms of this Section, Landlord shall cause to be provided to the Project and the Premises, water, electricity, gas, light, power, telephone, sewer, and other utilities (including fire sprinklers) (collectively, “ Utilities ”). Tenant shall arrange for refuse and trash collection and janitorial services provided to the Premises. Landlord shall cause all Utilities to be charged directly to Tenant by the provider. Tenant shall pay directly to the Utility provider, prior to delinquency, all charges for Utilities used on the Premises during the Term and any Term Extension, all maintenance charges for Utilities, and any storm sewer charges or other similar charges for Utilities imposed by any Governmental Authority or Utility provider, and any taxes, penalties, surcharges, or similar charges thereon. If Tenant fails to pay any Utilities in the manner required hereunder, Landlord shall have the right (but not the obligation) to pay the same, and the amount thereof shall be payable to Landlord on

 

 

demand as Additional Rent or includable by Landlord as an Operating Expense. No interruption or failure of Utilities, from any cause whatsoever other than Landlord’s willful misconduct, shall result in eviction or constructive eviction of Tenant, termination of this Lease or the abatement of Rent.

 

12. Alterations and Trade Fixtures. Any alterations, additions, or improvements made to the Premises (“ Alterations ”) by or on behalf of Tenant, including additional locks or bolts of any kind or nature upon any doors or windows in the Premises, but excluding installation, removal, or realignment of furniture systems (other than removal of furniture systems owned or paid for by Landlord) not involving any modifications to the structure or connections (other then by ordinary plugs or jacks) to “ Building Systems ” (as defined in Section 13 below) shall be subject to Landlord’s prior written consent, which consent (i) will not be unreasonably withheld or delayed with respect to non-structural Alterations to the interior of the Premises that do not involve any Building Systems or puncturing, relocating, or removing the roof or any existing load-bearing walls (“ Non-Structural Alterations ”), and (ii) may be withheld, in Landlord’s sole and absolute discretion, with respect to all other Alterations. Notwithstanding the foregoing, Landlord’s prior consent will not be required with respect to Non-Structural Alterations if the cost of each such Non-Structural Alteration does not exceed $5,000.00 (“ Permitted Non-Structural Alterations ”), the aggregate cost of all such Permitted Non-Structural Alterations does not exceed $25,000.00 in any consecutive 12 month period, and Tenant provides Landlord with Notice of each such Permitted Non-Structural Alteration, accompanied by any plans, specifications, bid proposals, work contracts, or other information concerning the nature and cost of each such Permitted Non-Structural Alteration that Tenant may have in its possession or control, including the identities and mailing addresses of all persons performing work or supplying materials (collectively, “ Alterations Information ”). If Landlord approves any Alterations, Landlord may impose such conditions on tenant in connection with the commencement, performance, and completion of such Alterations as Landlord may deem appropriate (in Landlord’s reasonable discretion, with respect to Non-Structural Alterations, and in Landlord’s sole and absolute discretion, with respect to all other Alterations). Any request for approval shall be in writing, delivered not less than 15 business days in advance of any proposed construction, and accompanied by such Alterations Information as may be reasonably requested by Landlord. Landlord’s right to review plans and specifications and to monitor construction shall be solely for its own benefit, and Landlord shall have no duty to see that such plans and specifications or construction comply with applicable Legal Requirements. Tenant, at its sole cost and expense, shall cause all Alterations to comply; with insurance requirements known to Tenant and Legal Requirements and shall implement any alteration or modification required by Legal Requirements as a result of any Alterations. Except as to Permitted Non-Structural Alterations, Tenant shall pay to Landlord, on demand as Additional Rent, an amount equal to 5.00% of all charges incurred by Tenant or its contractors or agents in connection with any Alterations to cover Landlord’s overhead and expenses for plan review, coordination, scheduling, and supervision. Tenant will give Landlord Notice at least 5 days (or any longer period that may be required under the Ground Lease) before beginning any Alterations so that Landlord may post on and about the Premises notices of non-responsibility pursuant to applicable law. Tenant, at its sole cost and expense, shall correct any faulty work or inadequate cleanup done by Tenant or its contractors within 5 business days after Notice of the same from Landlord. Tenant shall reimburse Landlord for, and indemnify and hold Landlord harmless from, any reasonable and necessary expenses incurred by Landlord by reason of such faulty work or inadequate cleanup or by reason of delays caused by the same.

 

Tenant shall furnish security or make other arrangements satisfactory to Landlord to assure payment for the completion of all work free and clear of “ Liens ” (as defined in Section 15

 

 

below), and shall provide certificates of insurance for workers compensation and other coverage in amounts and from an insurance company satisfactory to Landlord protecting Landlord against liability for personal injury or property damage during construction (copies of such certificates will suffice, so long as the original certificates are forwarded to Landlord within 2 business days thereafter). Upon completion of any Alterations, Tenant shall deliver to Landlord: (i) sworn statements setting forth the names of all contractors and subcontractors who did the work and final lien waivers from all such contractors and subcontractors; and (ii) as-built plans for any such Alteration.

 

Other than the items, if any, listed on Exhibit H and any items agreed by Landlord in writing to be included on Exhibit H in the future (“ Tenant’s Property ”), all Alterations, all “ Tenant Improvements ” (as defined in the Work Letter), and all other equipment, fixtures, trade fixtures, machinery, built-in furniture and cabinets, and other additions and improvements attached to or built into the Premises, including, without limitation, fume hoods that penetrate the roof or plenum area, built-in cold rooms, built-in warm rooms, walk-in cold rooms, walk-in warm rooms, deionized water systems, glass washing equipment, autoclaves, chillers, built-in plumbing, electrical and mechanical equipment and systems, and any power generator and transfer switch (collectively, “ Installations ”), shall be and shall remain the property of Landlord during the Term and any Term Extension and following the expiration or earlier termination of this Lease, shall not be removed by Tenant at any time during the Term or any Term Extension, and, subject to the provisions of Section 42 below, shall remain upon and be surrendered with the Premises as a part thereof following the expiration or earlier termination of this Lease; provided , however , that Landlord, at the time its approval of any Installation is requested, may elect to cause Tenant to remove such Installation upon the expiration or earlier termination of this Lease. If Landlord so elects, Tenant shall remove such Installation upon the expiration or earlier termination of this Lease and restore any damage caused by or occasioned as a result of such removal. During any such restoration period, Tenant shall pay Rent to Landlord as provided herein as if Tenant otherwise occupied said space. Landlord and Tenant hereby acknowledge and agree that the list of Tenant’s Property attached hereto as Exhibit H is intentionally over-inclusive and includes items that will be used, located, placed, and/or stored in the Office / Lab. Tenant shall be solely responsible for keeping records regarding the actual location of each particular item of Tenant’s Property. For purposes of this Lease, if, at any time, any particular item of Tenant’s Property is not within the Premises, such item shall be presumed to be within the Office / Lab.

 

13. Tenant’s Repairs. During the Term and any Term Extension, Tenant shall keep all components of the Premises and the Project in good order, condition, and repair (to the extent the need for such repairs occurs as a result of Tenants use of the portion of the Premises or Project requiring repairs), reasonable wear and tear and Construction Defects excluded, including, but not limited to, all equipment or facilities, such as plumbing, heating, ventilation, and air-conditioning (“ HVAC ”), electrical and lighting facilities, boilers, pressure vessels, fire protection systems, fixtures, exterior and interior walls, foundations, ceilings, roofs, floors, windows, doors, plate glass, landscaping and irrigation systems, driveways and parking areas, fences, retaining walls, signs, and sidewalks (“ Building Systems ”). Tenant’s obligations shall include restorations, replacements, or renewals when necessary. During the Term and any Term Extension, Tenant also shall keep the exterior appearance of the Greenhouse in a condition consistent with the exterior appearance of other substantially similar facilities of comparable age and size (“ Similar Facilities ”) located within the area commonly known as the “1-40/RTP sub-market’ (the “ Sub-Market ”), including, when necessary, the exterior sealing, resealing, or repainting of the Greenhouse. Tenant, in keeping the Premises and the Project in good order, condition, and repair, shall exercise and perform good maintenance practices,

 

 

specifically including the procurement and maintenance of service contracts, with copies to Landlord, in customary form and substance for, and with contractors specializing and experienced in the maintenance of, the following Building Systems (the “ Service Contracts ”): (i) HVAC, (ii) boilers and pressure vessels, (iii) fire protection systems, (iv) landscaping and irrigation systems, (v) roof covering and drains, (vi) driveways and parking areas, (vii) basic Utilities feeds to the perimeter of the Greenhouse, and (viii) any other Building Systems reasonably required by Landlord. Tenant’s obligations under this Section shall be at Tenant’s sole cost and expense. If Tenant fails to repair or maintain any portion of the Premises or the Project as required under this Section within 15 days after Landlord gives Tenant written demand to so repair or maintain, Landlord may perform such work and the reasonable and necessary cost thereof shall be payable to Landlord on demand as Additional Rent or includable by Landlord as an Operating Expense.

 

Notwithstanding the foregoing, if any “ Major Repair ” (as hereinafter defined) is required, Landlord shall be responsible for completing a “ Restoration ” (as hereinafter defined). As used herein, the term “ Major Repair ” shall mean the following: (a) during the final 12 months of the Term or any Term Extension (provided that Tenant has elected not to exercise any then available Extension Right or no Extension Right is then available) (the “ Final 12 Months ”), any repair to any Building System other than a “ Tenant Specific Building System ” (as hereinafter defined) that will cost more than 60.00% of the cost of replacing such Building System; and (b) at all other times, any repair to any Building System that will cost more than 50.00% of the cost of replacing such Building System. As used herein, the term “ Tenant Specific Building System ” shall mean any Building System that is necessary only because of Tenant’s specific use of the Premises or the conduct of Tenant’s specific business operations on the Premises. As used herein, the term “ Restoration ” shall mean the following: (x) during the Final 12 Months, repairing or replacing the Building System in question, at Landlord’s sole option; and (y) at all other times, replacing the Building System in question. The cost of any Restoration shall be includable by Landlord as an Operating Expense, provided that the cost of any Restoration that involves replacing the Building System in question shall be deemed a capital improvement and amortized over the useful life of the improvement (not to exceed 7 years). Under all circumstances, Landlord shall have no obligation with respect to any Building System to the extent any repair of such Building System becomes necessary because of Tenant’s failure to exercise and perform adequate maintenance as required hereunder.

 

Notwithstanding the foregoing, substantial repairs to the Premises or the Project required as the result of fire, earthquake, flood, vandalism, war, or similar cause of damage or destruction shall be controlled by Section 18 .

 

14. Landlord’s Repairs . It is intended by Landlord and Tenant that Landlord shall have no obligation, in any manner whatsoever, to repair or maintain the Premises or the Project (including, without limitation, the Building Systems), except to the extent, and only to the extent, of any repairs that are necessary solely because of Construction Defects, Landlord’s gross negligence or willful misconduct, the elements, or the age of the Premises or the Project. It is also intended by Landlord and Tenant that the terms of this Lease shall govern their respective obligations regarding repair and maintenance of the Premises and the Project and Tenant expressly waives the benefit of any state or local law now or hereafter in effect to the extent any such law is inconsistent with the terms of this Lease. Notwithstanding the foregoing, Landlord shall not be in default in its obligations under this Section if:

 

(a) with respect to Construction Defects that Landlord reasonably determines, in good faith, involve or may involve structural components of the Premises or pose

 

 

or may pose a significant risk of personal injury or substantial property damage (“ Serious Construction Defects ”), the applicable contractor, despite Landlord’s reasonable efforts, fails to remedy such Construction Defect within 30 days after Tenant gives Landlord Notice of such Construction Defect, but Landlord, within 30 days thereafter, commences and diligently and continuously prosecutes such remedial action to completion, at Landlord’s sole cost and expense;

 

(b) with respect to Construction Defects that Landlord reasonably determines, in good faith, are not Serious Construction Defects or involve Tenant’s Property, the applicable contractor, despite Landlord’s reasonable efforts, fails to remedy such Construction Defect within 30 days after Tenant gives Landlord Notice of such Construction Defect, in which case Landlord shall have no further obligation with respect to such Construction Defect other than to cooperate, at no cost to Landlord, with Tenant should Tenant elect to pursue a claim against such contractor, provided that Tenant indemnifies and holds Landlord harmless from and against any liability, loss, cost, damage, or expense that may arise because Tenant’s claim is denied or is determined to be baseless, erroneous, faulty, groundless, improper, inappropriate, unfounded, or otherwise unjustified or unwarranted; or

 

(c) with respect to any part of the Premises or the Project, any action by Tenant has directly resulted in the invalidation of any otherwise enforceable warranty or bond that would cover the cost of remedying such Construction Defect

 

Any determination made by Landlord pursuant to paragraph (a) or (b) above shall be deemed reasonable and in good faith if based on advice received by Landlord from an independent and duly licensed design or construction consultant (a “ Defect Consultant ”). Tenant may ask a Defect Consultant to provide written confirmation of the advice given Landlord in connection with a determination by Landlord that a specific Construction Defect is not a Serious Construction Defect if, and only if, (i) Tenant gives Landlord Notice of such desire within 3 business days after receiving Notice of Landlord’s determination, and (ii) Tenant is solely responsible for any fee, cost, charge, or other assessment imposed by the Defect Consultant for providing such written confirmation; provided , however , that Tenant understands and agrees that Landlord’s waiver of the potential conflict of interest facing the Defect Consultant shall be strictly limited to the advice, and only the advice, given Landlord in the specific instance in question and shall not apply, under any circumstances, to any other advice or matters that may be the subject of the services provided to Landlord by the Defect Consultant

 

15. Liens . Tenant, at Tenant’s sole cost and expense, shall pay for all work performed for, materials furnished to, or obligations incurred by Tenant in connection with the Premises or the Project, and shall keep the Premises and the Project free from, and shall discharge, by bond or otherwise, any mechanic’s or materialmen’s lien or claim of lien filed against the Premises or the Project for work claimed to have been done for, materials claimed to have been furnished to, or obligations claimed to have been incurred by, Tenant in connection with the Premises or the Project (generally, “ Liens ”). Tenant shall discharge any such Lien within 10 days after Tenant receives notice of such Lien. With respect to any Alterations for which the estimated cost exceeds $15,000.00, Landlord may require Tenant, at Tenant’s sole cost and expense, to provide a lien and completion bond in an amount equal to 150.00% of such estimated cost, insuring Landlord against any liability for any Liens that may arise from such Alterations. Should Tenant fail to discharge any Lien in the manner and at the time provided herein, Landlord shall have the right, but not the obligation, to pay such claim or post a bond or otherwise provide security to eliminate the Lien as a claim against title to the Project and the cost thereof shall be immediately due from Tenant as Additional Rent. If Tenant

 

 

shall lease or finance the acquisition of office equipment, furnishings, or other personal property of a removable nature used by Tenant in the operation of Tenant’s business, Tenant warrants that any Uniform Commercial Code Financing Statement executed by Tenant will on 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 Project be furnished on the statement without qualifying language as to applicability of the lien only to removable personal property, located in an identified suite held by Tenant.

 

16. Indemnification .

 

(a) Tenant hereby indemnifies and agrees to defend, save, and hold Landlord harmless from and against any and all Claims for injury or death to persons or damage to property occurring within or about the Premises or the Project, arising directly or indirectly out of Tenant’s use or occupancy of the Premises or the Project or a breach or default by Tenant in the performance of any of its obligations hereunder, except to the extent caused by the gross negligence or willful misconduct of Landlord.

 

(b) Landlord hereby indemnifies and agrees to defend, save, and hold Tenant harmless from and against any and all Claims for injury or death to persons or damage to property occurring within or about the Premises or the Project, to the extent, and only to the extent, caused by the gross negligence or willful misconduct of Landlord. Under no circumstances, however, shall Landlord be liable to Tenant for, and Tenant assumes all risk of, damage to personal property (including, without limitation, loss of records kept within the Premises). Further, Tenant waives any and all Claims for injury to Tenant’s business or loss of income relating to any such damage or destruction of personal property (including, without limitation, any loss of records). Finally, Landlord shall not be liable for any damages arising from any act, omission, or neglect of any guests, invitees, licensees, and other authorized users of the Project or of any other third party.

 

17. Insurance . Landlord shall maintain all insurance against any peril generally included within the classification “ Fire and Extended Coverage ”, sprinkler damage (if applicable), vandalism and malicious mischief covering the full replacement cost of the Project, as the same shall exist from time to time, or the amount required by Ground Lessor or any lender of Landlord holding a security interest in Landlord’s interest in the Project, but in no event more than the commercially reasonable and available insurable value thereof. Landlord also may maintain, but is not obligated to maintain, such other insurance and additional coverages as Landlord may deem necessary, including, but not limited to, comprehensive public liability, flood, environmental hazard, earthquake, loss or failure of building equipment, and rental loss during periods of repair or rebuilding. The Project may be included in a blanket policy (in which case the cost of such insurance allocable to the Project will be determined by Landlord based upon the insurer’s cost calculations). Tenant hereby acknowledges that Tenant has been provided with a written summary of the insurance coverage that Landlord will be maintaining with respect to the Project as of the Commencement Date; Landlord will be responsible for notifying Tenant of any material changes in such insurance coverage made after the Commencement Date.

 

Tenant, at its sole expense, shall maintain during the Term and any Term Extension: all risk property insurance covering tine full replacement cost of all property and improvements installed or placed in the Premises by Tenant; worker’s compensation insurance with no less than the minimum limits required by law; employees liability insurance with such limits as required by law; and comprehensive public liability insurance, with a minimum limit of not less

 

 

than $2,000,000 per occurrence for death or bodily injury and not less than $1,000,000 for property damage with respect to the Premises. Landlord may from time to time require reasonable increases in any such limits. The comprehensive public liability insurance policies shall name Landlord, its officers, directors, employees, managers, agents, invitees and contractors (collectively, “ Related Parties ”), as additional insureds; insure on an occurrence and not a claims-made basis; be issued by insurance companies that have a rating of not less than policyholder rating of A and financial category rating of at least Class XII in “Best’s Insurance Guide”; shall not be cancelable unless 30 days prior written notice shall have been given to Landlord from the insurer, contain a hostile fire endorsement and a contractual liability endorsement; and provide primary coverage to Landlord (any policy issued to Landlord providing duplicate or similar coverage shall be deemed excess over Tenant’s policies). Such policies or certificates thereof shall be delivered to Landlord by Tenant upon commencement of the Term and upon each renewal of said insurance (upon renewal, copies of such policies or certificates will suffice, so long as the original policies or certificates are forwarded to Landlord within 2 business days thereafter). Tenant’s policy may be a “blanket policy” which specifically provides that the amount of insurance shall not be prejudiced by other losses covered by the policy. Tenant shall, at least 20 days prior to the expiration of such policies, furnish Landlord with renewals or binders. Tenant agrees that if Tenant does not maintain such insurance, Landlord shall have the right (but not the obligation) to procure said insurance on Tenant’s behalf.

 

In each instance where insurance is to name Landlord as an additional insured, Tenant, upon Landlord’s written request, shall furnish certificates so evidencing Landlord as additional insured to: (i) Ground Lessor, (ii) any lender of Landlord holding a security interest in any portion of the Project, and/or (iii) any management company retained by Landlord to manage the Project. Further, Tenant agrees that Landlord may require insurance policy limits to be raised to conform to the requirements of Ground Lessor and/or Landlord’s lender.

 

The property insurance obtained by Landlord and Tenant shall include a waiver of subrogation by the insurers and all rights based upon an assignment from its insured, against Landlord or Tenant, and their respective Related Parties, in connection with any toss or damage thereby insured against. Neither party nor its respective Related Parties shall be liable to the other for loss or damage caused by any risk insured against under property insurance required to be maintained hereunder, and each party waives any claims against the other party, and its respective Related Parties for such loss or damage. The failure of a party to insure its property shall not void this waiver. Landlord and its respective Related Parties shall not be liable for, and Tenant hereby waives all claims against such parties for, business interruption and losses occasioned thereby sustained by Tenant or any person claiming through Tenant resulting from any accident or occurrence in or upon the Premises or the Project from any cause whatsoever. If the foregoing waivers shall contravene any law with respect to exculpatory agreements, the liability of Landlord or Tenant shall be deemed not released but shall be secondary to the others insurer.

 

The cost of any insurance procured and/or maintained by Landlord pursuant to this Section shall be included as an Operating Expense.

 

Notwithstanding any provision of this Section, Landlord shall insure, and shall bear all risk of loss with respect to, the Premises and the Project at all times prior to the Commencement Date, with the exception of any acts or omissions by Tenant or its agents or contractors.

 

 

18. Restoration. If at any time during the Term or any Term Extension the Project or the Premises are damaged by a fire or other insured casualty, Landlord shall notify Tenant within 45 days after discovery of such damage as to the amount of time Landlord reasonably estimates it will take to restore the Project or the Premises, as applicable. If the restoration time is estimated to exceed 6 months, either party, by giving Notice to the other party, may elect to terminate this Lease as of the date that is 75 days after the date of discovery of such damage. Unless either party elects to terminate this Lease, Landlord, subject to receipt of sufficient insurance proceeds, shall promptly restore the Premises (excluding any Alterations installed by Tenant and any other improvements installed by Landlord and paid for by Tenant after Substantial Completion of the original Premises), subject to delays arising from the collection of insurance proceeds, from Force Majeure events, or as needed to obtain any license, clearance, or other authorization of any kind required to enter into and restore the Premises issued by any Governmental Authority having jurisdiction over the use, storage, release or removal of Hazardous Materials in, on, or about the Premises (collectively referred to herein as “ Hazardous Materials Clearances ”); provided , however , that if such repair or restoration of the Premises is not Substantially Complete within 9 months after the date of discovery of the damage (to be extended by 1 day for each day that the restoration time is estimated to exceed 6 months, provided that neither party elected to terminate this Lease based on such estimate), either party, by giving Notice to the other party, may elect not to proceed with such repair and restoration, in which event Landlord shall be relieved of its obligations to make such repairs or restoration and this Lease shall terminate effective as of the date of such election.

 

Tenant, at its expense, shall promptly perform, subject to delays arising from the collection of insurance proceeds, from Force Majeure events or to obtain Hazardous Material Clearances, all repairs or restoration not required to be done by Landlord and, as soon as reasonably practicable, shall re-enter the Premises and commence doing business in accordance with this Lease. Notwithstanding the foregoing, Landlord may terminate this Lease if the Premises are damaged during the last 18 months of the Term or of any Term Extension and Landlord reasonably estimates that it will take more than 60 days to repair such damage, or if insurance proceeds are not available for such restoration. Rent shall be abated from the date all required Hazardous Material Clearances are obtained until the Premises are repaired and restored, in the proportion that the area of the Premises that is not usable by Tenant, if any, bears to the total area of the Premises, unless Landlord provides Tenant with other space during the period of repair that is suitable, in Tenant’s reasonable discretion, for the temporary conduct of Tenant’s business. Such abatement shall be Tenant’s sole and exclusive remedy at law, in equity, or otherwise, and except as provided herein, Tenant waives any right to terminate the Lease by reason of damage or casualty loss.

 

The provisions of this Lease, including this Section, constitute an express agreement between Landlord and Tenant with respect to any and all damage to, or destruction of, all or any part of the Premises, or any other portion of the Project, and any statute or regulation that is now or may hereafter be in effect, shall have no application to this Lease or any damage or destruction to all or any part of the Premises or any other portion of the Project, the parties hereto expressly agreeing this Section sets forth their entire understanding and agreement with respect to such matters.

 

19. Condemnation. If any part of the Premises or the Project is taken for any public or quasi-public use under any governmental law, ordinance, or regulation, or by right of eminent domain, or by private purchase in lieu thereof (a “ Taking ” or “ Taken ”), and the Taking would, in Tenant’s judgment prevent or materially interfere with Tenant’s use of the Premises for the Permitted Use or, in Landlord’s judgment, materially interfere with or impair Landlord’s

 

 

ownership or operation of the Project, then upon Notice by either party to the other party this Lease shall terminate and Rent shall be apportioned as of said date. If part of the Premises shall be Taken, and this Lease is not terminated as provided above, Landlord shall promptly restore the Premises and the Project as nearly as is commercially reasonable under the circumstances to their condition prior to such partial taking and the Rent payable hereunder during the unexpired portion of the Term or any Term Extension shall be reduced to such extent as may be fair and reasonable under the circumstances. Upon any such Taking, Landlord shall be entitled to receive the entire price or award from any such Taking without any payment to Tenant and Tenant hereby assigns to Landlord Tenant’s interest, if any, in such award. Tenant shall have the right, to the extent that same shall not diminish Landlord’s award, to make a separate claim against the condemning authority (but not Landlord) for such compensation as may be separately awarded or recoverable by Tenant for moving expenses and damage to Tenant’s Trade Fixtures, if a separate award for such items is made to Tenant. Tenant hereby waives any and all rights it might otherwise have pursuant to any provision of state law to terminate this Lease upon a partial Taking of the Premises or the Project

 

20. Events of Default. Each of the following events shall be a default (“ Default ”) by Tenant under this Lease:

 

(a) Payment Defaults. Tenant shall fail to pay any installment of Rent or any other payment hereunder when due; provided , however , that Landlord will give Tenant Notice and an opportunity to cure any failure to pay Rent within 3 days of any such Notice not more than once in any 12 month period and Tenant agrees that such Notice shall be in lieu of and not in addition to any notice required by law.

 

(b) Insurance. (i) Any insurance required to be maintained by Tenant pursuant to this Lease shall be canceled or terminated or shall expire or shall be reduced or materially changed, or Landlord shall receive a notice of nonrenewal of any such insurance and (ii) Tenant shall fail to obtain replacement insurance at least 20 days before the expiration of the current coverage.

 

(c) Abandonment. Tenant shall abandon the Premises.

 

(d) Improper Transfer. Tenant shall assign, sublease or otherwise transfer or attempt to transfer all or any portion of Tenant’s interest in this Lease or the Premises except as expressly permitted herein, or Tenant’s interest in this Lease shall be attached, executed upon, or otherwise judicially seized and such action is not released within 90 days of the action.

 

(e) Liens. Tenant shall fail to satisfy its obligations under Section 15 .

 

(f) Insolvency Events. Tenant or any guarantor or surety of Tenant’s obligations hereunder shall: (i) make a general assignment for the benefit of creditors; (ii) commence any case, proceeding or other action seeking to have an order for relief entered on its behalf as a debtor or to adjudicate it bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, liquidation, dissolution or composition of it or its debts or seeking appointment of a receiver, trustee, custodian or other similar official for it or for all or of any substantial part of its property (collectively a “ Proceeding for Relief ”); (iii) become the subject of any Proceeding for Relief that is not dismissed within 90 days of its filing or entry; or (iv) die or suffer a legal disability (if Tenant guarantor, or surety is an individual) or be dissolved or otherwise fail to maintain its legal existence (if Tenant, guarantor or surety is a corporation, partnership or other entity).

 

 

(g) Estoppel Certificate or Subordination Agreement. Tenant fails to execute any document required from Tenant under Sections 23 , 27 , or 38 within 10 days after a second Notice requesting such document.

 

(h) Office / Lab Lease. Tenant is in breach of, in default under, or otherwise has failed to comply with the agreements, terms, covenants and conditions to be performed by Tenant in connection with the Office / Lab Lease, after any applicable notice and cure periods.

 

(i) [Intentionally Omitted]

 

(j) Other Defaults. Tenant shall fail to comply with any provision of this Lease other than those specifically referred to in this Section, and except as otherwise expressly provided herein, such failure shall continue for a period of 30 days after Notice thereof from Landlord to Tenant.

 

Any Notice given under Section 20(g) or ( j ) hereof, shall: (i) specify the alleged default, (ii) demand that Tenant cure such default, (iii) be in lieu of, and not in addition to, or be deemed to be, any notice required under any provision of applicable law, and (iv) not be deemed a forfeiture or a termination of this Lease unless Landlord elects otherwise in such Notice; provided , however , that if the nature of Tenant’s default is such that it cannot be cured by the payment of money and reasonably requires more than 30 days to cure, then Tenant shall not be deemed to be in default if Tenant commences such cure within said 30-day period and thereafter diligently prosecutes the same to completion; provided further , however , that such cure shall be completed no later than 60 days from the date of Landlord’s Notice.

 

21. Landlord’s Remedies.

 

(a) Payment By Landlord; Interest. Upon a Default by Tenant hereunder, Landlord, without waiving or releasing any obligation of Tenant hereunder, may make such payment or perform such act. 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 12.00% per annum or the highest rate permitted by law, whichever is less (the “ Default Rate ”), shall be payable to Landlord on demand as Additional Rent. Nothing herein shall be construed to create or impose a duty on Landlord to mitigate any damages resulting from Tenant’s Default hereunder.

 

(b) Late Payment Rent. Late payment by Tenant to Landlord of Rent and other sums due under this Lease will cause Landlord to incur costs not contemplated by this Lease, the exact amount of which will 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 under any “ Mortgage ” (as defined in Section 27 below) covering the Premises. Therefore, if Landlord does not receive any installment of Rent due from Tenant within 5 days after the date such payment is due, Tenant shall pay to Landlord an additional sum of 6.00% of the overdue Rent as a late charge. In addition to the late charge, Rent not paid when due shall bear interest at the Default Rate from the 5 ^th day after the date due until paid. Provided there is no other Default by Tenant hereunder, the foregoing late charge and interest at the Default Rate will not be payable until the 2 ^nd late payment of Rent in any 12 month period. Tenant agrees that the foregoing late charge and interest at the Default Rate represent a fair and reasonable estimate of the costs Landlord will incur by reason of late payment by Tenant. Tenant also acknowledges that Landlord is entitled to use reasonable methods to deter delinquent payments by Tenant and agrees that, under the circumstances in existence as of the

 

 

date of this Lease, the foregoing late charge and interest at the Default Rate are reasonable, as evidenced by the fact that, among other things, (i) Landlord and Tenant have comparatively equal bargaining power, (ii) this Lease is not a pre-printed form document, and (iii) Tenant’s principals are well experienced in leasing properties, were represented by counsel in the negotiation and documentation of this Lease, and bargained at arms length and without duress for all of the terms and conditions of this Lease, including this provision.

 

(c) Remedies. Upon the occurrence of a Default, Landlord, at its option, without further Notice to or demand on Tenant, shall have the option, in addition to all other rights and remedies provided in this Lease, at law or in equity, to pursue any one or more of the following remedies, each and all of which shall be cumulative and nonexclusive, without any Notice or demand whatsoever.

 

(i) Terminate this Lease, or at Landlord’s option, Tenant’s right to possession only, in which event Tenant shall immediately surrender the Premises to Landlord, and if Tenant fails to do so, Landlord may, in accordance with applicable law and without prejudice to any other remedy that it may have for possession or arrearages in rent, enter upon and take possession of the Premises and expel or remove Tenant and any other person who may be occupying the Premises or any part thereof, without being liable for prosecution or any claim or damages therefor;

 

(ii) Upon any termination of this Lease, whether pursuant to the foregoing Section 21(c)(i) or otherwise, Landlord may recover from Tenant the following:

 

(A) The worth at the time of award of any unpaid rent which has been earned 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 been earned after termination until the time of award exceeds the amount of such rental loss that Tenant proves 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 or Term Extension (as the case may be) after the time of award exceeds the amount of such rental loss that Tenant proves 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 which in the ordinary course of things would be likely to result therefrom, specifically including, but not limited to, brokerage commissions and advertising expenses incurred and the expenses of remodeling the Premises or any portion thereof for a new tenant, whether for the same or a different use, and any special concessions made to obtain a new tenant; and

 

(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 law.

 

The term “ rent ” as used in this Section shall be deemed to be and to mean all sums of every nature required to be paid by Tenant pursuant to the terms of this Lease, whether to Landlord or to others. As used in Sections 21(c)(ii)(A) and (B) , above, the “ worth at the time of award ” shall be computed by allowing interest at the Default Rate. As used in Section 21(c)(ii)(C)

 

 

above, the “ worth at the time of award ” shall be computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus 1.00%.

 

(iii) Landlord may continue this Lease in effect after Tenant’s Default and recover rent as it becomes due. Accordingly, if Landlord does not elect to terminate this Lease following a Default by Tenant, Landlord may, from time to time, without terminating this Lease, enforce all of its rights and remedies hereunder, including the right to recover all Rent as it becomes due.

 

(iv) Whether or not Landlord elects to terminate this Lease following a Default by Tenant, Landlord shall have the right to terminate any and all subleases, licenses, concessions or other consensual arrangements for possession entered into by Tenant and affecting the Premises or may, in Landlord’s sole and absolute discretion, succeed to Tenant’s interest in such subleases, licenses, concessions or arrangements. Upon Landlord’s election to succeed to Tenant’s interest in any such subleases, licenses, concessions or arrangements, Tenant shall, as of the date of Notice by Landlord of such election, have no further right to or interest in the rent or other consideration receivable thereunder.

 

(d) Effect of Exercise. Exercise by Landlord of any remedies hereunder or otherwise available shall not be deemed to be an acceptance of surrender of the Premises and/or a termination of this Lease by Landlord, it being understood that such surrender and/or termination can be effected only by the express written agreement of Landlord and Tenant. Any law, usage, or custom to the contrary notwithstanding, Landlord shall have the right at all times to enforce the provisions of this Lease in strict accordance with the terms hereof; and the failure of Landlord at any time to enforce its rights under this Lease strictly in accordance with same shall not be construed as having created a custom in any way or manner contrary to the specific terms, provisions, and covenants of this Lease or as having modified the same and shall not be deemed a waiver of Landlord’s right to enforce one or more of its rights in connection with any subsequent default. A receipt by Landlord of Rent or other payment with knowledge of the breach of any covenant hereof shall not be deemed a waiver of such breach, and no waiver by Landlord of any provision of this Lease shall be deemed to have been made unless expressed in writing and signed by Landlord. To the greatest extent permitted by law, Tenant waives the service of notice of Landlord’s intention to re-enter, re-take or otherwise obtain possession of the premises as provided in any statute, or to institute legal proceedings to that end, and also waives all right of redemption in case Tenant shall be dispossessed by a judgment or by warrant of any court or judge. Any reletting of the Premises or any portion thereof shall be on such terms and conditions as Landlord in its sole and absolute discretion may determine. Landlord shall not be liable, nor shall Tenant’s obligations hereunder be diminished because of, Landlord’s failure to relet the Premises or collect rent due in respect of such reletting or otherwise to mitigate any damages arising by reason of Tenant’s Default.

 

22. Assignment and Subletting.

 

(a) General Prohibition. Without Landlord’s prior written consent, Tenant shall not, directly or indirectly, voluntarily or by operation of law, assign this Lease or sublease the Premises or any part thereof or mortgage, pledge, or hypothecate its leasehold interest or grant any concession or license within the Premises and any attempt to do any of the foregoing shall be void and of no effect. For purposes of this Section, a transfer of ownership interests controlling Tenant shall be deemed an assignment of this Lease unless such ownership interests are publicly traded.

 

 

(b) Permitted Transfers. If Tenant desires to assign, sublease, hypothecate or otherwise transfer this Lease or sublet the Premises (generally, a “ Transfer ”), then at least 15 business days, but not more than 30 business days, before the date Tenant desires the Transfer to be effective (the “ Assignment Date ”), Tenant shall give Landlord a Notice (the “ Assignment Notice ”) containing such information about the proposed transferee, including the proposed use of the Premises and any Hazardous Materials proposed to be used or stored in the Premises, the Assignment Date, any relationship between Tenant and the proposed transferee, and all material terms and conditions of the proposed Transfer, and such other information as Landlord may deem reasonably necessary or appropriate to its consideration whether to grant its consent. Landlord may, by giving Notice to Tenant within 15 business days after receipt of the Assignment Notice: (i) grant or refuse such consent, in its sole and absolute discretion, with respect to any Transfer other than a straightforward sublease of not more than 3,000 square feet of the Premises (a “ Minor Sublease ”), or grant or refuse such consent, in its reasonable discretion, with respect to such a Minor Sublease, or (ii) terminate this Lease with respect to the space described in the Assignment Notice, as of the Assignment Date (an “ Assignment Termination ”). If Landlord elects an Assignment Termination, Tenant shall have the right to withdraw its Assignment Notice by Notice to Landlord of such election within 5 days after Landlord’s Notice electing to exercise the Assignment Termination. If Tenant withdraws such Assignment Notice, this Lease shall continue in full force and effect. If Tenant does not withdraw such Assignment Notice, this Lease, and the term and estate herein granted, shall terminate as of the Assignment Date with respect to the space described in such Assignment Notice. No failure of Landlord to exercise any such option to terminate this Lease shall be deemed to be Landlord’s consent to the proposed Transfer. Tenant shall reimburse Landlord for all reasonable out-of-pocket expenses, up to a maximum of $1,000.00, incurred by Landlord in connection with its consideration of any Assignment Notice.

 

(c) Additional Conditions. As a condition to any such Transfer, Landlord may require:

 

(i) that any transferee agree, in writing at the time of such Transfer, that if Landlord gives such third party notice that Tenant is in default under this Lease, such third party shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments will be received by Landlord without any liability except to credit such payment against those due under this Lease, and any such third party shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided , however , in no event shall Landlord or its successors or assigns be obligated to accept such attomment; and

 

(ii) A list of Hazardous Materials, certified by the proposed transferee to be true and correct, which the proposed transferee intends to use or store in the Premises together with the “ Documents ” (as defined in Section 30(b) below) with respect to such proposed transferee.

 

(d) No Release of Tenant. Notwithstanding any Transfer, Tenant and any guarantor or surety of Tenant’s obligations under this Lease shall at all times remain fully and primarily responsible and liable for the payment of Rent and for compliance with all of Tenant’s other obligations under this Lease. If the Rent due and payable by a transferee (or a combination of the rental payable under such Transfer plus any bonus or other consideration therefor or incident thereto) exceeds the rental payable under this Lease, then Tenant shall be bound and obligated to pay Landlord as Additional Rent hereunder all such excess rental and other excess consideration within 10 days following receipt thereof by Tenant. If Tenant shall

 

 

sublet the Premises or any part 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 Landlord, as assignee, or a receiver for Tenant appointed on Landlord’s application, may collect such rent and apply it toward Tenant’s obligations under this Lease; except that, until the occurrence of a Default, Tenant shall have the right to collect such rent.

 

(e) No Waiver. The consent by Landlord to a Transfer shall not relieve Tenant or any transferee from obtaining the consent of Landlord to any further Transfer nor shall it release Tenant or any transferee from full and primary liability under the Lease. The acceptance of Rent hereunder, or the acceptance of performance of any other term, covenant, or condition thereof, from any other person or entity shall not be deemed to be a waiver of any of the provisions of this Lease or a consent to any Transfer.

 

23. Estoppel Certificate. Tenant shall within 15 business days of Notice from Landlord, execute, acknowledge and deliver a statement in writing substantially in the form attached to this Lease as Exhibit I with the blanks filled in, and on any other form reasonably requested by a proposed lender or purchaser, (i) 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 the rental and other charges are paid in advance, if any, (ii) 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 (iii) setting forth such further information with respect to the status of this Lease or the Premises as may be reasonably 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 such time shall, at the option of Landlord, constitute a Default under this Lease, and, in any event, shall be conclusive 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.

 

24. Quiet Enjoyment. If Tenant shall perform all of the covenants and agreements herein required to be performed by Tenant, Tenant shall, at all times during the Term and any Term Extension, have peaceful and quiet enjoyment of the Premises and the Project against any person claiming by, through, or under Landlord.

 

25. Prorations. All prorations required or permitted to be made hereunder shall be made on the basis of a 360-day year and 30-day months.

 

26. Rules and Regulations. Tenant shall, at all times during the Term and any Term Extension, comply with all reasonable rules and regulations at any time or from time to time established by Landlord covering the use of the Premises and the Project and delivered to Tenant at least 30 days prior to their effective date. The current rules and regulations are attached hereto as Exhibit G . If there is any conflict between said rules and regulations and other provisions of this Lease, the terms and provisions of this Lease shall control. Landlord shall not have any obligation to enforce any rules or regulations against, and shall have no liability for the breach of any rules or regulations by, other tenants in the Project. If Landlord chooses to enforce any rules or regulations against other tenants in the Project, Landlord shall do so in a non-discriminatory manner.

 

27. Subordination. This Lease and Tenant’s interest and rights hereunder are and shall be subject and subordinate at all times to the lien of any first mortgage, now existing or

 

 

hereafter created on or against the Project or the Premises, and all amendments, restatements, renewals, modifications, consolidations, refinancings, assignments and extensions thereof (collectively, a “ Mortgage ”), without the necessity of any further instrument or act on the part of Tenant; provided , however , that so long as there is no Default hereunder, Tenants receipt of a fully executed instrument containing appropriate non-disturbance provisions assuring Tenants quiet enjoyment of the Premises as set forth in Section 24 hereof shall be a condition precedent to the subordination of Tenant’s interest and rights hereunder and Tenant’s right to possession of the Premises shall not be disturbed by the holder of any such Mortgage (a “ Holder ”). Tenant agrees, at the electron of any Holder, to attorn to any such Holder. Tenant agrees, upon demand, to execute, acknowledge and deliver a Subordination, Non-Disturbance and Attomment Agreement substantially in the form attached hereto as Exhibit J (the “ Loan Subordination Agreement ”) or such other instruments, confirming such subordination and such instruments of attomment as shall be reasonably requested by any Holder, provided any such instruments contain the appropriate non-disturbance provisions described above. Notwithstanding the foregoing, any Holder may at any time subordinate its Mortgage to this Lease, without Tenant’s consent, by written notice to Tenant and thereupon this Lease shall be deemed prior to such Mortgage without regard to their respective dates of execution, delivery, or recording and in that event such Holder shall have the same rights with respect to this Lease as though this Lease had been executed prior to the execution, delivery, and recording of such Mortgage and had been assigned to such Holder. Landlord shall use commercially reasonable efforts to obtain an express agreement from the Holder of any Mortgage that the lien of such Mortgage does not apply or attach to any property that, by operation of the terms of this Lease, is deemed to be Tenant’s separate property, whether or not such property is, has been, or will become affixed to the Premises. The term “ Mortgage ” whenever used in this Lease shall be deemed to include deeds of trust, security assignments and any other encumbrances given for value, and any reference to the “ Holder ” of a mortgage shall be deemed to include the beneficiary under a deed of trust.

 

28. Surrender. Upon expiration or earlier termination of Tenant’s right of possession, Tenant, subject to the provisions of Section 42 below and to the exercise of any remedies by Landlord, may remove Tenant’s Property and shall surrender the Premises to Landlord in substantially the same condition as received, broom clean, ordinary wear and tear, approved Alterations, and casualty loss and condemnation covered by Sections 18 and 19 excepted, and shall return to Landlord all keys to offices and restrooms furnished to, or otherwise procured by, Tenant. If any such key is lost Tenant shall pay to Landlord, at Landlord’s election, either the cost of replacing such lost key or the cost of changing the lock or locks opened by such lost key. Any Trade Fixtures, Alterations, and property not so removed by Tenant as permitted or required herein shall be deemed abandoned and may be stored, removed, and disposed of by Landlord at Tenant’s expense, and Tenant waives all claims against Landlord for any damages resulting from Landlord’s retention and/or disposition of such property. All obligations of either party that have arisen and/or become binding hereunder but have not been fully satisfied as of the expiration or earlier termination of this Lease shall survive such expiration or earlier termination, including without limitation, indemnity obligations, payment obligations (including Rent), obligations concerning the condition and repair of the Premises, and the obligation to obtain all required Hazardous Materials Clearances. Without limiting the generality of the foregoing, the following provisions shall survive the expiration or earlier termination of this Lease: (a) the indemnity obligations contained in Sections 7 , 12 , 14(b) , 16(a) , 16(b) , 30(a) , 30(d) , 35 , and 38(b) ; (b) the payment obligations contained in Sections 3 , 5 , 6 , 8 , 9 , 11 , 15 , 21(a) , 21b) , 22(d) , and 42 ; (c) the maintenance, repair, restoration, and/or demolition obligations contained in Sections 12 , 13 , 18 , and 42 ; (d) the obligation to obtain

 

 

Hazardous Materials Clearances contained in Sections 18 and 42 ; and (e) the agreements contained in Sections 29 , 36 , and 44 .

 

29. Waiver of Jury Trial . TENANT AND LANDLORD EACH AGREE NOT TO ELECT A TRIAL BY JURY, AND WAIVE ANY RIGHT TO A TRIAL BY JURY OR TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE, BETWEEN LANDLORD AND TENANT ARISING OUT OF THIS LEASE OR ANY OTHER INSTRUMENT, DOCUMENT, OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION