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EXHIBIT
10.8
LEASE
AGREEMENT
OFFICE
LEASE TABLE OF CONTENTS
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Page
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LEASE AGREEMENT
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2
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RENT
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3
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PREMISES
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7
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CONDITION OF PREMISES
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7
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PROJECT SERVICES
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8
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ALTERATIONS AND REPAIRS
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9
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USE OF PREMISES
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12
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INTRABUILDING NETWORK CABLES
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13
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GOVERNMENTAL REQUIREMENTS AND BUILDING RULES
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14
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WAIVER OF CLAIMS; INDEMNIFICATION; INSURANCE
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15
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FIRE AND OTHER CASUALTY
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17
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EMINENT DOMAIN
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18
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RIGHTS RESERVED TO LANDLORD
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18
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TENANT'S DEFAULT
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20
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LANDLORD REMEDIES
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21
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SURRENDER
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23
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HOLDOVER
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24
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SUBORDINATION TO GROUND LEASES AND MORTGAGES
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24
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ASSIGNMENT AND SUBLEASE
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25
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CONVEYANCE BY LANDLORD
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27
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ESTOPPEL CERTIFICATE
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27
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LEASE DEPOSIT
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28
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FORCE MAJEURE
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28
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TENANT'S PERSONAL PROPERTY AND FIXTURES
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28
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NOTICES
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29
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QUIET POSSESSION
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30
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REAL ESTATE BROKER
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30
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MISCELLANEOUS
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30
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UNRELATED BUSINESS INCOME
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33
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HAZARDOUS SUBSTANCES
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33
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LANDLORD'S LEASE UNDERTAKINGS
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33
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OFFER TO LEASE
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34
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RESERVATION OF RIGHTS
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34
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MODIFICATION AND FINANCING CONDITIONS
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35
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OFFICE LEASE
THIS
OFFICE LEASE (the "Lease") is made as of the 21st day of
March, 2007 (dated for reference purposes only) between
SEAGATE TELEGRAPH ASSOCIATES, LLC, a California limited liability
corporation (the
"Landlord"), and
NILE THERAPEUTICS, a
Delaware corporation as
named in the Schedule below. The term "Project" means the six story
office building and other improvements commonly known as 2850
Telegraph Avenue located in the City of Berkeley ("City"), County
of Alameda ("County"), California, as more particularly described
in
EXHIBIT A .
The "Premises" means that portion of the Building described in
the
SCHEDULE .
The Building in which the Premises are located shall be
collectively referred to herein as the "Building." The following
schedule (the "Schedule") is an integral part of this Lease. Terms
defined in this Schedule shall have the same meaning throughout the
Lease.
SCHEDULE
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1.
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Tenant :
NILE THERAPEUTICS, a Delaware corporation
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Address:
689 Fifth Avenue, 14th Floor, New York, NY, 10022 (until lease
commencement date, and thereafter, the Premises).
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2.
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Premises: Approximately
2,332 rentable square feet on the Third Floor of the Building
located at 2850 Telegraph Avenue, designated as Suite 310,
Berkeley, CA 94704.
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3.
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Permitted Use: Administrative
and general office use, as a therapeutical sales
office.
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4.
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Term: Three
(3) years.
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5.
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Commencement Date: May
1, 2007, or substantial completion of Tenant Improvement Work,
which ever occurs first. Rental Commencement shall be
May 1,2007.
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6.
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Expiration Date: April
30,2010
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7.
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Rent and Other Charges Payable by Tenant:
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a.
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Base Rent: Initially
2,332sf multiplied by $2.61psf, which equals Six Thousand
Eighty-Seven and 00/100 ($6,087.00) Dollars per month for the first
month, which shall be paid upon Lease execution, and thereafter,
payable monthly as set forth in the schedule below:
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FOR
THE PERIOD
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MONTHLY
BASE RENT
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ANNUAL
BASE RENT
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May
1,2007 through April 30, 2008
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$
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6,087
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$
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73,044
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May
1,2008 through April 30, 2009
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$
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6,320
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$
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75,840
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May
1,2009 through April 30, 2010
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$
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6,553
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$
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78,636
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b.
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Other Periodic Payments: Tenant
shall be responsible for payment of Tenant's Proportionate Share of
certain charges such as operating costs and taxes in excess of the
Base Year and Additional Rent.
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8.
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Tenant's Proportionate Share: 3.39%
of Building (based on 68,857 rentable square feet in the
Building)
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9.
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Prepaid Rent: $6,087.00,
representing the first month Base Rent, payable upon Tenant's
execution of Lease.
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10.
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Security Deposit: Fourteen
Thousand and NO/100 ($14,000.00) Dollars, payable upon Tenant's
execution of Lease, together with the Prepaid Rent will make a
total amount due along with presentation of the signed lease, in an
amount equal to Twenty Thousand Eighty-Seven and NO/00 ($20,087.00)
Dollars.
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11.
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Parking Spaces: Four
(4) spaces in common with all other tenants in the Property,
available on an unreserved basis; and charged at prevailing rates,
which may be adjusted by Landlord in its sole discretion, from time
to time
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13.
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Tenant's Real Estate Broker for this Lease:
Nick
Polsky of CB Richard Ellis
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14.
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Landlord's Real Estate Broker for this Lease:
Ann
Lovi of Collier's International
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15.
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Tenant Improvement Allowance: (Intentionally
Deleted)
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EXHIBIT A:
SITE PLAN OF PREMISES
EXHIBIT B:
RULES AND REGULATIONS
EXHIBIT C:
TENANT IMPROVEMENT AGREEMENT AND WORK LETTER
LEASE AGREEMENT
On
the terms stated in this Lease, Landlord leases the Premises
to Tenant, and Tenant leases the Premises from Landlord, for
the Term beginning on the Commencement Date and ending on the
Expiration Date unless extended or sooner terminated pursuant
to this Lease.
The
commencement date (the
"Commencement Date" )
for this Lease is the date set forth in the Schedule. Tenant agrees
and acknowledges that the Commencement Date shall not be delayed as
a result of any delays which may occur in the completion of the
"Tenant Improvements," as described in Section 4 and the Tenant
Improvement Agreement and Work Letter, attached hereto as
EXHIBIT C .
If Landlord does not deliver possession of the Premises by the
Commencement Date, for any reason whatsoever, then this Lease shall
not be void or voidable, and Landlord shall not be liable to Tenant
for any loss or damage resulting therefrom. Furthermore, no delay
in delivery of possession shall in any way operate to extend the
Expiration Date or any other obligation of Landlord or Tenant
hereunder, provided, however, the Monthly Base Rent shall be waived
for the period between the Commencement Date and the date when
Landlord delivers possession of the Premises to Tenant. In the
event Landlord is unable to deliver possession of the Premises
within ninety days after the Commencement Date, either party may
elect to cancel this Lease by giving the other party written notice
of its election to cancel and the Lease shall be canceled as of the
date of the Notice. If the delay in Commencement is in no way
related to Tenant's actions or inactions, Landlord shall return any
prepaid rent and Security Deposit and neither party shall have any
further liability under this Lease.
The
expiration date (the "Expiration Date") of this Lease is the
date set forth in the Schedule.
During
the period commencing on the date the original of this fully
executed Lease is delivered to Tenant and ending on the
Commencement Date (the
"Early Occupancy Period" ),
Tenant shall be permitted to enter the Premises for the purposes of
installing certain trade fixtures and the Tenant Improvements,
provided that Tenant's occupancy of the Premises during the Early
Occupancy Period shall be subject to all of the terms, covenants
and conditions of this Lease, including, without limitation,
Tenant's obligations under the Tenant Improvement Agreement,
Section 9 (regarding Tenant's compliance with applicable laws and
building rules obligation), and Section 10 (regarding Tenant's
indemnity and insurance obligations), except Tenant's obligation to
pay Base Rent shall not commence until the earlier of the
Commencement Date or the date Tenant commences to do business in
the Premises. Notwithstanding the foregoing, Tenant shall pay for
all utility costs incurred by Landlord to the extent they relate to
Tenant's work in the Premises during the Early Occupancy Period. In
addition, if Tenant occupies any part of the Premises during the
Early Occupancy Period for purposes of doing business, then Tenant
shall pay all Base Rent, Operating Cost Share Rent and Tax Share
Rent at the rate for the first Lease Year as set forth in the
Schedule prorated for any partial month.
RENT
Tenant
shall pay the following Rent in the form of a check to
Landlord at the following address (or in such other manner as
Landlord may notify Tenant):
SEAGATE
TELEGRAPH ASSOCIATES, LLC.
c/o
SEAGATE PROPERTIES, INC.
980
Fifth Avenue
San
Rafael, CA 94901
(1)
Base Rent payable
in monthly installments in advance, without prior notice or demand,
the first monthly installment payable concurrently with the
execution of this Lease and thereafter on or before the first day
of each month of the Term in the amount set forth on the
Schedule.
(2)
Operating Cost Share Rent in
an amount equal to the Tenant's Proportionate Share of the
Operating Costs for the applicable fiscal year of the Lease, in
excess of the Base Year, paid monthly in advance in an estimated
amount. Definitions of Operating Costs and Tenant's Proportionate
Share, and the method for billing and payment of Operating Cost
Share Rent are set forth in Section 2.B.
(3)
Tax Share Rent in
an amount equal to the Tenant's Proportionate Share of the Taxes
for the applicable fiscal year of this Lease, in excess of the Base
Year, paid monthly in advance in an estimated amount. A definition
of Taxes and the method for billing and payment of Tax Share Rent
are set forth in Sections 2.B and 2.C.
(4)
Additional Rent in
the amount of all costs, expenses, liabilities, and amounts which
Tenant is required to pay under this Lease, excluding Base Rent,
Operating Cost Share Rent, and Tax Share Rent, but including any
late charge and any interest for late payment of any item of
rent.
(5)
Rent as
used in this Lease means Base Rent, Operating Cost Share Rent, Tax
Share Rent and Additional Rent. Tenant's agreement to pay Rent is
an independent covenant. All payments due from Tenant to Landlord
hereunder shall be paid to Landlord, without notice, demand,
deduction, recoupment, offset or counterclaim, and without relief
from any valuation or appraisement laws, and in lawful money of the
United States of America in the manner specified in Section
2.
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E.
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PAYMENT OF OPERATING COST SHARE RENT AND TAX SHARE
RENT.
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(1)
Payment of Estimated Operating Cost Share Rent and Tax Share
Rent Landlord
shall estimate the Operating Costs and Taxes of the Project by
March 1 of each fiscal year, or as soon as reasonably possible
thereafter. Landlord may revise these estimates whenever it obtains
more accurate information, such as the final real estate tax
assessment or tax rate for the Project. Within ten (10) days after
receiving the original or revised estimate from Landlord, Tenant
shall pay Landlord one-twelfth (l/12th) of Tenant's Proportionate
Share, in excess of the Base Year, of this estimate, multiplied by
the number of months that have elapsed in the applicable Lease Year
(as defined in Section 2.C.(4) hereof) to the date of such payment
including the current month, minus payments previously made by
Tenant for the months elapsed. On the first day of each month
thereafter, Tenant shall pay Landlord one-twelfth (l/12th) of
Tenant's Proportionate Share of this estimate, until a new estimate
becomes applicable.
(2)
Correction of Operating Cost Share Rent
Landlord shall deliver to Tenant a report for the previous fiscal
year (the "Operating Cost Report") by May 1st of each Lease Year,
or as soon as reasonably possible thereafter, setting forth (a) the
actual Operating Costs Incurred, (b) the amount of Operating Cost
Share Rent due from Tenant, and (c) the amount of Operating Cost
Share Rent paid by Tenant. Within thirty (30) days after such
delivery, Tenant shall pay to Landlord the amount due minus the
amount paid. If the amount paid exceeds the amount due, Landlord
shall apply the excess to Tenant's payments of Operating Cost Share
Rent next coming due or if the Lease has expired, Landlord shall
promptly pay any such excess to Tenant and Tenant shall promptly
pay any amounts then due.
(3)
Correction of Tax Share Rent Landlord
shall deliver to Tenant a report for the previous Lease Year (the
"Tax Report") by May 1SI of each Lease Year, or as soon as
reasonably possible thereafter, setting forth (a) the actual Taxes,
(b) the amount of Tax Share Rent due from Tenant, and (c) the
amount of Tax Share Rent paid by Tenant. Within thirty (30) days
after such delivery, Tenant shall pay to Landlord the amount due
from Tenant minus the amount paid by Tenant. If the amount paid
exceeds the amount due, Landlord shall apply any excess as a credit
against Tenant's payments of Tax Share Rent next coming due or if
the Lease has expired, Landlord shall promptly pay any such excess
to Tenant and Tenant shall promptly pay any amounts then
due.
(1)
Included Operating Costs "Operating Costs"
means
any expenses, costs and disbursements of any kind other than Taxes,
paid or incurred by Landlord in connection with the management,
maintenance, operation, insurance (including the related
deductibles), repair and other related activities in connection
with any part of the Project and of the personal property,
fixtures, machinery, equipment, systems and apparatus used in
connection therewith, including the cost of providing those
services required to be furnished by Landlord under this Lease and
a management fee equal to five (5%) percent of all Gross Rental
derived from the Building ("Gross Rental" shall mean Base Rent and
any Additional Rent payable by tenants). Operating Costs shall also
include the costs of any capital improvements which are intended to
reduce Operating Costs or improve safety, and those made to keep
the Project in compliance with governmental requirements applicable
from time to time or to replace existing capital improvements,
facilities and equipment within the Building or the common areas of
the Project, such as the roof membrane, the roof, structural
elements of the Building, and resurfacing of the parking areas
(collectively,
"Included Capital Items" );
provided, that the costs of any Included Capital Item shall be
amortized by Landlord, together with an amount equal to interest at
ten (10%) percent per annum, over the estimated useful life of such
item and such amortized costs are only included in Operating Costs
for that portion of the useful life of the Included Capital Item
which falls within the Term, unless the cost of the Included
Capital Item is less than Ten Thousand ($10,000) Dollars in which
case it shall be expensed in the year in which it was incurred.
Operating Costs shall not include Property Taxes, depreciation on
the Building other than depreciation on exterior window coverings
provided by Landlord and carpeting in public corridors and common
areas and the personal property referred to above; costs of
tenants' improvements in excess of tenant standard; real estate
brokers' commissions, attorneys' fees and expenses incurred in
connection with negotiations or disputes with Building tenants or
prospective Building tenants and any expense to the extent Landlord
receives direct reimbursement by tenants, insurers or other third
parties. Notwithstanding anything to the contrary contained in this
Section 2.C.(1), Operating Costs shall only include (i) Operating
Costs fairly allocable to the Building, and (ii) a proportionate
share (based on the gross rentable area of the Building as a
percentage of the gross rentable area of all of the buildings in
the Project) of all Operating Costs which relate to the Project in
general and are not fairly allocable to any one building in the
Project. If the Project is not fully occupied during any portion of
any Lease Year, Landlord may adjust Operating Costs to equal what
would have been incurred by Landlord had the Project been fully
occupied. Landlord may incorporate such adjustments in its
estimates of Operating Costs.
(2)
Taxes "Taxes" means
any and all taxes, assessments and charges of any kind, general or
special, ordinary or extraordinary, levied against the Project,
which Landlord shall pay or become obligated to pay in connection
with the ownership, leasing, renting, management, use, occupancy,
control or operation of the Project or of the personal property,
fixtures, machinery, equipment, systems and apparatus used in
connection therewith. Taxes shall include real estate taxes,
personal property taxes, sewer rents, water rents, special or
general assessments, transit taxes, ad valorem taxes, and any tax
levied by any state, county, municipality or other governmental
authority on the rents hereunder or the interest of Landlord under
this Lease (the "Rent Tax"). Taxes shall also include all fees and
other costs and expenses paid by Landlord in reviewing any tax and
in seeking a refund or reduction of any Taxes, whether or not the
Landlord is ultimately successful. Taxes shall also include any
assessments or fees paid to any business park owners association,
or similar entity, which are imposed against the Project pursuant
to any Covenants, Conditions and Restrictions ("CC&R's")
recorded against the Project and any installments of principal and
interest required to pay any existing or future general or special
assessments for public improvements, services or benefits, and any
increases resulting from reassessments imposed in connection with
any change in ownership or new construction. Notwithstanding
anything to the contrary contained in this Section 2.C.(2), Taxes
shall include only those Taxes (i) fairly allocable to the
Building, and (ii) a proportionate share (based on the gross
rentable area of the Building as a percentage of the gross rentable
area of all of the buildings in the Project) of all Taxes which
relate to the Project in general and are not fairly allocable to
any one building in the Project. For any year, the amount to be
included in Taxes (a) from taxes or assessments payable in
installments, shall be the amount of the installments (with any
interest) due and payable during such year, and (b) from all other
Taxes, shall at Landlord's election be the amount accrued,
assessed, or otherwise imposed for such year or the amount due and
payable in such year. Any refund or other adjustment to any Taxes
by the taxing authority, shall apply during the year in which the
adjustment is made. Taxes shall not include any net income (except
Rent Tax), capital, stock, succession, transfer, franchise, gift,
estate or inheritance tax, except to the extent that such tax shall
be imposed in lieu of any portion of Taxes.
(3)
Base Year The
term "Base Year" shall mean the Operating Costs and Taxes incurred
by Landlord during the calendar year as set forth under Section 12
in the Schedule hereinabove.
(4)
Lease Year "Lease Year" shall
mean each twelve month period during the term hereof ending on
December 31; provided that the first Lease Year shall commence upon
the commencement of the term hereof and shall end on the next
succeeding December 31, and the last Lease Year shall end upon the
expiration of the term hereof.
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G.
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COMPUTATION OF BASE RENT AND RENT
ADJUSTMENTS.
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(1)
Prorations If
this Lease begins on a day other than the first day of a month, the
Base Rent, Operating Cost Share Rent and Tax Share Rent shall be
prorated for such partial month based on the actual number of days
in such month. If this Lease begins on a day other than the first
day, or ends on a day other than the last day of the Lease Year,
Operating Cost Share Rent and Tax Share Rent shall be prorated for
the applicable Lease Year.
(2)
Default Interest Any
sum due from Tenant to Landlord not paid when due shall bear
interest from the date due until paid at the lesser of eighteen
(18%) percent per annum or the maximum rate permitted by
law.
(3)
Books and Records Landlord
shall maintain books and records reflecting the Operating Costs and
Taxes in accordance with its standard operating procedures and
practice and generally accepted accounting principles. Provided
Tenant is not otherwise in default under this Lease, Tenant and its
certified public accountant shall have the right to inspect
Landlord's records at Landlord's applicable local office or other
location designated by Landlord upon at least seventy-two (72)
hours prior written notice during normal business hours during the
ninety (90) days following the respective delivery of the Operating
Cost Report or the Tax Report. The results of any such inspection
shall be kept strictly confidential by Tenant and its agents, and
Tenant and its certified public accountant must agree, in their
contract for such services, to such confidentiality restrictions
and shall specifically agree that the results shall not be made
available to any other tenant of the Project. Unless Tenant sends
to Landlord any written exception to either such report within said
ninety-day (90) period, such report shall be deemed final and
accepted by Tenant. Tenant shall pay the amount shown on both
reports in the manner prescribed in this Lease, whether or not
Tenant takes any such written exception, without any prejudice to
such exception. If Tenant makes a timely exception, Landlord shall
cause its independent certified public accountant to issue a final
and conclusive resolution of Tenant's exception. Tenant shall pay
the cost of such certification unless Landlord's original
determination of annual Operating Costs and Taxes in the aggregate
overstated the amounts thereof by more than five (5%)
percent.
(4)
Miscellaneous So
long as Tenant is in default of any obligation under this Lease,
Tenant shall not be entitled to any refund of any amount from
Landlord. If this Lease is terminated for any reason prior to the
annual determination of Operating Cost Share Rent or Tax Share
Rent, either party shall pay the full amount due to the other
within fifteen (15) days after Landlord's notice to Tenant of the
amount when it is determined. Landlord may commingle any payments
made with respect to Operating Cost Share Rent or Tax Share Rent,
without payment of interest.
PREMISES
The
exact boundaries of the Premises shall extend to the
unfinished interior surface of all perimeter walls, except
glazing, which shall be included within the Premises, the
unfinished surface of all floors, and the underside of the
floor above the Premises that forms the ceiling of the
Premises. Notwithstanding the foregoing, the Premises shall
not be deemed to include the roof, the exterior surface of the
walls of the Premises, any structural portions of the Building
or any utility installations serving other portions of the
Building. Landlord reserves to itself the use of the roof,
exterior walls and the area beneath the Premises, together
with the right to install, maintain, use, repair and replace
plumbing, telephone facilities, equipment, machinery,
connections, pipes, ducts, conduits and wires leading through
the Premises and serving other parts of the Building. The
square footage of the Premises shall be determined in
accordance with the BOMA Standards. Not later than 15 days
before the Commencement Date, Tenant shall have the right to
measure the Premises and determine the rentable square footage
thereof. If the rentable square footage contained in the
Premises is more or less than the square footage identified in
the Schedule, then the Rent and Tenant's Proportionate Share
shall be adjusted to reflect the actual rentable square
footage contained within the Premises.
CONDITION OF PREMISES
Tenant
represents, warrants and covenants to Landlord that, as of the
date of this Lease, Tenant has conducted its own investigation
of the Premises and the physical condition thereof, including,
without limitation, the accessibility and location of
utilities, the improvements, the presence of Hazardous
Substances (defined hereinafter), and any other matters which
in Tenant's judgment might affect or influence Tenant's use of
the Premises or Tenant's willingness to enter into this Lease.
Tenant recognizes that Landlord would not lease the Premises
except on an "as is" basis and acknowledges that, except as
set forth in this Lease, Landlord has made no representation
of any kind in connection with the improvements to, or the
physical conditions on, or bearing on the use of, the
Premises. Tenant shall rely solely on Tenant's own inspection
and examination of such items and not on any representations
of Landlord, express or implied. Landlord shall deliver the
Premises to Tenant in the same arrangement and condition as
the Premises now are, reasonable wear and tear excepted, and
that Landlord, except as may be expressly agreed by Landlord
in writing as set forth in the Tenant Improvement Agreement
and Work Letter (the "Work"), set forth herein as Exhibit C
attached and made a part hereof, has no obligation to alter,
repair, renovate, or render fit for Tenant's occupancy, any
part of the Premises. Upon execution of this Lease, Tenant
shall be deemed fully satisfied with the results of Tenant's
inspection and examination of all such items. Landlord shall
be solely responsible for constructing those certain interior
tenant improvements ("Tenant Improvements") within the
Premises in accordance with the terms and conditions set forth
in the Tenant Improvement Agreement and Work Letter attached
hereto as EXHIBIT C. Tenant agrees and acknowledges that
Landlord shall have no liability or responsibility whatsoever
for the construction of the Tenant Improvements, except that
Landlord agrees to provide as set forth in the Tenant
Improvement Agreement and Work Letter.
PROJECT SERVICES
Landlord
shall furnish services as follows:
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H.
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HEATING AND AIR CONDITIONING.
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During
the normal business hours of 8:00 a.m. to 6:00 p.m., Monday
through Friday, Landlord shall furnish heating and air
conditioning to provide a comfortable temperature, in
Landlord's reasonable judgment, for normal business
operations, except to the extent Tenant fails to take
reasonable steps to ensure the efficient heating and cooling
of the Premises (e.g., keeping all exterior doors, windows and
blinds closed) or installs equipment which adversely affects
the temperature maintained by the air conditioning system;
provided if the outside temperature exceeds 95° degrees F
dry bulb, then Tenant acknowledges that the temperatures
within the Premises may be slightly higher than usual. If
Tenant installs such equipment, Landlord may reasonably
require that Tenant install supplementary air conditioning
units in the Premises and pay the cost of installation,
operation and maintenance thereof. Landlord shall furnish
heating and air conditioning after business hours if Tenant
provides Landlord reasonable prior notice, and pays Landlord
all the then current charges for such additional heating or
air conditioning. The current hourly charge for after-hours
HVAC use is $35.00 per hour, provided that Landlord reserves
the right to change this rate at any time during the Term
without notice to Tenant.
If
the Building is equipped with one or more elevators, Landlord
shall provide passenger elevator service during normal
business hours to Tenant in common with Landlord and all other
tenants. Landlord shall provide limited passenger service at
other times, except in case of an emergency. If the Building
is equipped with a freight elevator, Landlord shall provide
freight elevator service at reasonable hours at Tenant's
request, subject to scheduling by the Landlord and payment for
the service by Tenant.
Landlord
shall provide sufficient electricity to operate normal office
equipment. Tenant shall not install or operate in the Premises
any electrically operated equipment or other machinery, other
than business machines and equipment normally employed for
general office use which do not require high electricity
consumption for operation, without obtaining the prior written
consent of Landlord. If any or all of Tenant's equipment
requires electricity consumption in excess of that which is
necessary to operate normal office equipment, such consumption
(including consumption for computer or telephone rooms and
special HVAC equipment) shall be submetered by Landlord at
Tenant's expense, and Tenant shall reimburse Landlord as
Additional Rent for the cost of its sub-metered consumption
based upon Landlord's average cost of electricity. Such
Additional Rent shall be in addition to Tenant's obligations
pursuant to Section 2.A (4) to pay its Proportionate Share of
Operating Costs.
Landlord
shall furnish hot and cold tap water for drinking and toilet
purposes. Tenant shall pay Landlord for water furnished for
any other purpose as Additional Rent at rates fixed by
Landlord. Such Additional Rent shall be in addition to
Tenant's obligations pursuant to Section 2.A (4) to pay its
Proportionate Share of Operating Costs. Tenant shall take
reasonable actions so as to avoid allowing water to be
wasted.
Landlord
shall furnish janitorial service Monday through Friday as
generally provided to other tenants in the Project and
consistent with specifications for other Class A office
buildings for the City of Berkeley, California. With
reasonable prior notice from Tenant, Landlord shall also
provide additional janitorial service on weekends or holidays
at Tenant's expense, and Tenant shall reimburse Landlord as
Additional Rent for the cost of such additional janitorial
services. Such Additional Rent shall be in addition to
Tenant's obligations pursuant to Section 2.A (4) to pay its
Proportionate Share of Operating Costs.
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M.
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INTERRUPTION OF SERVICES.
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Landlord
shall not be liable for any failure to furnish, stoppage of,
or interruption in furnishing any of the services or
utilities, when such failure is caused by accident, breakage,
repairs, strikes, lockouts, labor disputes, labor
disturbances, governmental regulation, civil disturbances,
acts of war, moratorium or other governmental action, or any
other cause beyond Landlord's reasonable control, and, in such
event, Tenant shall not be entitled to any damages nor shall
any failure or interruption abate or suspend Tenant's
obligation to pay Rent required under this Lease or constitute
or be construed as a constructive or other eviction of Tenant
or relieve Tenant from fulfillment of any covenant or
agreement hereof. Further, in the event any governmental
authority or public utility promulgates or revises any law,
ordinance, rule or regulation, or issues mandatory controls or
voluntary controls relating to the use or conservation of
energy, water, gas, light or electricity, the reduction of
automobile or other emissions, or the provision of any other
utility or service, Landlord may take any reasonably
appropriate action to comply with such law, ordinance, rule,
regulation, mandatory control or voluntary guideline and
Tenant's obligations hereunder shall not be affected by any
such action of Landlord. The parties acknowledge that safety
and security devices, services and programs provided by
Landlord, if any, while intended to deter crime and ensure
safety, may not in given instances prevent theft or other
criminal acts, or ensure safety of persons or property. The
risk that any safety or security device, service or program
may not be effective, or may malfunction, or be circumvented
by a criminal, is assumed by Tenant with respect to Tenant's
property and interests, and Tenant shall obtain insurance
coverage to the extent Tenant desires protection against such
criminal acts and other losses, as further described in this
Lease. Tenant agrees to cooperate in any reasonable safety or
security program developed by Landlord or required by
law.
ALTERATIONS AND REPAIRS
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N.
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LANDLORD'S CONSENT AND CONDITIONS.
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Tenant
shall not make any improvements or alterations to the Premises
(the "Work") without in each instance submitting plans and
specifications for the Work to Landlord and obtaining
Landlord's prior written consent, which consent may be
withheld in Landlord's sole discretion. Landlord will be
deemed to be acting reasonably in withholding its consent for
any Work which (a) impacts the base structural components or
systems of the Building, (b) impacts any other tenant's
premises, or (c) is visible from outside the Premises. Tenant
shall pay for the cost of all Work, including the cost of any
and all approvals, permits, fees and other charges which may
be required as a condition of performing such Work. The
following requirements shall apply to all Work:
(1)
Prior to commencement ,
Tenant shall furnish to Landlord building permits, and certificates
of insurance reasonably satisfactory to Landlord.
(2)
Tenant shall perform all
Work so as to maintain peace and harmony among other contractors
serving the Project and shall avoid interference with other work to
be performed or services to be rendered in the
Project.
(3)
The Work shall
be performed in a good and workmanlike manner, meeting the standard
for construction and quality of materials in the Building, and
shall comply with all insurance requirements and all applicable
governmental laws, ordinances and regulations ("Governmental
Requirements").
(4)
Tenant shall perform all
Work so as to minimize or prevent disruption to other tenants, and
Tenant shall comply with all reasonable requests of Landlord in
response to complaints from other tenants.
(5)
Tenant shall perform all
Work in compliance with any "Policies, Rules and Procedures for
Construction Projects" which may be in effect at the time the Work
is performed. As of the date of this Lease, there are no Policies,
Rules and Procedures for Construction Projects which have been
established for this Project.
(6)
Tenant shall reimburse Landlord
any and all costs and expenses incurred by Landlord in connection
with the construction of the Work, including, without limitation,
utilities, trash removal, and temporary barricades, and the review
of any plans and specifications. Tenant shall permit Landlord to
supervise all Work. Landlord may charge a supervisory fee not to
exceed fifteen percent (15%) of labor, materials, and all other
costs of the Work whether or not Landlord's employees or
contractors perform the Work.
(7)
Upon completion, Tenant
shall furnish Landlord with full and final statutory waivers of
liens, as-built plans and specifications, and receipted bills
covering all labor and materials, and all other close-out
documentation relating to the Work, including any other information
required under any "Policies, Rules and Procedures for Construction
Projects" which may be in effect at such time.
(8)
Notwithstanding anything to
the contrary contained in this Lease, Landlord's approval of any
contractors, subcontractors, engineers, architects, suppliers,
plans or specifications submitted pursuant hereto shall not be
deemed a warranty as to the adequacy of the design, workmanship,
quality of materials or compliance with any applicable
laws.
(9)
Landlord may require Tenant
to provide Landlord at Tenant's sole cost and expense a completion
and performance bond in an amount equal to the estimated cost of
the Work to insure Landlord against any liability for mechanic's or
materialmens' liens and to insure the completion of the
Work.
If
any part of the mechanical, electrical or other systems in the
Premises (e.g., HVAC, life safety or automatic fire
extinguisher/sprinkler system) shall be damaged, Tenant shall
promptly notify Landlord, and Landlord shall repair such
damage. Landlord may also at any reasonable time make any
repairs or alterations which Landlord deems necessary for the
safety or protection of the Project, or which Landlord is
required to make by any court or pursuant to any Governmental
Requirement. Tenant shall at its expense make all other
repairs necessary to keep the Premises, and Tenant's fixtures
and personal property, in good order, condition and repair in
compliance with all applicable Governmental Requirements; to
the extent Tenant fails to do so, Landlord may make such
repairs itself. The cost of any repairs made by Landlord on
account of Tenant's default, or on account of the misuse or
neglect by Tenant or its invitees, contractors or agents
anywhere in the Project, shall become Additional Rent payable
by Tenant on demand. It is a condition precedent to all
Landlord's obligations to repair and maintain that Tenant
shall have notified Landlord of the need of such repairs or
maintenance. Tenant waives the provisions of Sections 1941 and
1942 of the California Civil Code and any similar or successor
law regarding Tenant's right to make repairs and deduct the
cost of such repairs from the Rent due under this
Lease.
Tenant
has no authority to cause or permit any lien or encumbrance of
any kind to affect Landlord's interest in the Project; any
such lien or encumbrance shall attach to Tenant's interest
only. If any mechanic's lien shall be filed or claim of lien
made for work or materials furnished to Tenant, then Tenant
shall at its expense within ten (10) days thereafter either
discharge or contest the lien or claim. If Tenant contests the
lien or claim, then Tenant shall (i) within such ten (10) day
period, provide Landlord adequate security for the lien or
claim, (ii) contest the lien or claim in good faith by
appropriate proceedings that operate to stay its enforcement,
and (iii) pay promptly any final adverse judgment entered in
any such proceeding. If Tenant does not comply with these
requirements, Landlord may discharge the lien or claim, and
the amount paid, as well as attorney's fees and other expenses
incurred by Landlord, shall become Additional Rent payable by
Tenant on demand.
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Q.
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OWNERSHIP OF IMPROVEMENTS.
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All
Work as defined in this Section 6, partitions, hardware, and
all other improvements and all fixtures except trade fixtures,
constructed in the Premises by either Landlord or Tenant, (i)
shall become Landlord's property upon termination without
compensation to Tenant, or (ii) shall at Landlord's option be
removed in accordance with Section 6.E below.
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R.
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REMOVAL UPON TERMINATION.
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Upon
the termination of this Lease or Tenant's right of possession
Tenant shall remove from the Premises and Project its trade
fixtures, furniture, moveable equipment and other personal
property, any improvements which Landlord elects pursuant to
Section 6.E shall be removed by Tenant, and any improvements
to any portion of the Project other than the Premises. If
Tenant does not timely remove such property, then Tenant shall
be conclusively presumed to have, at Landlord's election (i)
conveyed such property to Landlord without compensation or
(ii) abandoned such property, and Landlord may dispose of or
store any part thereof in any manner at Tenant's sole cost,
without waiving Landlord's right to claim from Tenant all
expenses arising out of Tenant's failure to remove the
property, and without liability to Tenant or any other person.
Landlord shall have no duty to be a bailee of any such
personal property. If Landlord elects abandonment, Tenant
shall pay to Landlord, upon demand, any expenses incurred for
disposition.
USE OF PREMISES
Tenant
shall use the Premises only for the Permitted Use stated in
the Schedule. Any material change in the character of Tenant's
business or use shall constitute a default under this Lease.
Nothing contained in this Lease shall grant to Tenant the
exclusive right to conduct within the Building the business to
be conducted by Tenant within the Premises or otherwise limit
the right of Landlord to lease space in the Building to any
other tenants as it deems proper. Tenant shall not conduct or
permit to be conducted in the Premises any sale by auction, or
any fire, distress or bankruptcy sale, or use or allow the
Premises to be used for any improper, immoral, unlawful or
objectionable purpose, or cause, maintain or permit any
nuisance in, or about the Premises or commit or suffer to be
committed any waste in or upon the Premises. Tenant shall not
allow any use of the Premises which will negatively affect the
cost of coverage of Landlord's insurance on the Project.
Tenant shall not allow any inflammable or explosive liquids or
materials to be kept on the Premises. Tenant shall not allow
any use of the Premises which would cause the value or utility
of any part of the Premises to diminish or would interfere
with any other tenant or with the operation of the Project by
Landlord. Tenant shall not permit any nuisance or waste upon
the Project, or allow any offensive noise or odor in or around
the Project. At the end of each business day, or more
frequently if necessary, Tenant shall deposit all garbage and
other trash (excluding any inflammable, explosive and/or
hazardous materials) in trash bins or containers approved by
Landlord in locations designated by Landlord from time to
time. If any governmental authority shall deem the Premises to
be a "place of public accommodation" under the Americans with
Disabilities Act or any other comparable law as a result of
Tenant's use, Tenant shall either modify its use to cause
authority to rescind its designation or to be responsible for
any alterations, structural or otherwise, required to be made
to the Building or the Premises under such laws.
Tenant
shall not place on any portion of the Premises any sign,
placard, lettering, banner, displays or other advertising or
communicative material which is visible from the exterior of
the Building without the prior written approval of Landlord.
Any approved signs shall strictly conform to all Governmental
Restrictions, any CC&R's recorded against the Project, and
any sign criteria which may be established by Landlord and in
effect at the time, and shall be installed (and removed upon
the Expiration Date) at Tenant's expense. Tenant, at its sole
cost and expense, shall maintain such signs in good condition
and repair, (including the repair of any damage caused to the
Building and/or Project upon the removal of such signs).
Landlord current Signage Standards are on file and available
upon request from the Landlord's corporate office, and are
subject to change from time to time. Notwithstanding the
foregoing, Landlord, at its cost, shall include Tenant's name
in the lobby directory for the Building.
Landlord
shall provide Tenant up to the number of parking stalls
specified in the Schedule on an unreserved basis in Landlord's
parking facilities (the "Parking Facilities"). The parking
stalls are charged to Tenant at the prevailing rates which may
be adjusted from time to time by Landlord in its sole
discretion. The use of the Parking Facilities shall be in
common with other tenants of the Project upon a first-come,
first-served basis and on other reasonable, nondiscriminatory
terms and conditions, as may from time to time be established
by Landlord. Tenant agrees to cooperate with Landlord and
other tenants in the Project in the use of the Parking
Facilities. Access to the surface parking lot and underground
parking garage shall be subject to control by Landlord.
Landlord reserves the right in its sole discretion to alter,
change or improve the Parking Facilities. Landlord shall not
be liable to Tenant, nor shall this Lease be affected, if any
parking is impaired by moratorium, initiative, referendum,
law, ordinance, regulation or order passed, issued or made by
any governmental or quasi-governmental body. Landlord assumes
no liability for damage or injuries, theft, collision, fire or
damage of Tenant, its employees, customers and invitees and/or
their vehicles and Landlord shall not be responsible for
articles left in vehicles or for damages for loss of use of
any vehicle. Tenant waives any and all claims against Landlord
for any injury to or death of any person or damage to or
destruction of property in or about the Parking Facilities,
including, without limitation, loss of use of any one or all
of the Parking Facilities.
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V.
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PROHIBITION AGAINST USE OF ROOF AND STRUCTURE OF
BUILDING.
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Tenant
shall be prohibited from using any all or any portion of the
roof of the Building or any portion of the structure of the
Building during the Tenancy of this Lease (or any extensions
thereof) for any purposes.
INTRABUILDING NETWORK CABLES
Notwithstanding
anything contained in this Lease to the contrary, Landlord and
Tenant agree as follows:
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W.
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TENANT'S RESPONSIBILITY.
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At
its sole cost and expense, Tenant agrees to install, maintain,
and repair all telecommunication cabling, wiring, and risers
in the Premises or through the Building to Tenant's telephone
panel as may be required to for Tenant's use of the Premises.
Any costs incurred by Landlord caused by such installation or
to comply with governmental laws, rules, and regulations in
connection with such installation, will be for the account of
Tenant, and within ten (10) days Tenant will pay all invoices
for those costs as Additional Rent. Tenant shall also be
responsible, at Tenant's sole cost and expense, for any of
Tenant's telephones, telecopiers, computers, routers,
telephone switching, telephone panels and related
equipment.
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X.
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LANDLORD'S RIGHT OF ENTRY.
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In
addition to Landlord's other rights of entry under this Lease,
Landlord has the right to enter the Premises to install,
maintain, and repair telecommunications cabling, wiring, and
risers for the benefit of other tenants of the
Building.
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Y.
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ALTERATIONS BY TENANT.
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Regardless
of Tenant's other rights under the Lease to make alterations
to the Premises, Tenant may not alter or modify the
telecommunication cabling, wiring, and risers located in the
Premises or throughout the Building or otherwise without
Landlord's prior written consent, which consent may be
withheld in Landlord's sole discretion.
Tenant
agrees that the installation, maintenance, and repair of
Tenant's telecommunications cabling, wiring and risers in the
Premises or through the Building will be done by Landlord's
approved service provider or any other independent contractor
that Landlord may approve in writing in advance, which
approval shall not be unreasonably withheld.
Tenant
agrees to indemnify, release, defend, and hold Landlord
harmless against any damages, claims, or other liability
resulting from the installation, repair, or maintenance, of
Tenant's telecommunications calling, wiring and risers in the
Premises or through the Building including, but not limited
to, the costs of repair, the costs of handling complaints from
other tenants in the Building, and any damages resulting from
the interruption in service to other tenants in the Building.
Tenant releases Landlord from any losses, claims, injuries,
damages, or other liability, including, but not limited to,
consequential damages, whether to persons or property and no
matter how caused, in any way connected with the interruption
of telecommunications services to the Premises due to the
failure of any telecommunications cabling, wiring, or risers.
Tenant expressly waives any right to claim that the
interruption of such services constitutes grounds for a claim
of abatement of rent, of constructive eviction, or for
termination of this Lease.
GOVERNMENTAL REQUIREMENTS AND BUILDING RULES
Tenant
shall comply with all Governmental Requirements applying to
its use, repair and maintenance of the Premises. Landlord and
Tenant acknowledge and agree that Tenant's obligation to
comply with the legal requirements as provided herein is a
material part of the bargained for consideration under this
Lease. Tenant's obligation hereunder shall include, without
limitation, the responsibility of Tenant to make substantial
repairs and alterations to the Premises (including any
Improvements), regardless of, among other factors, the
relationship of the cost of curative action to the rental
under this Lease, the length of the then remaining term of
this Lease, the relative benefit of the repairs to Tenant, the
degree in which the curative action may interfere with
Tenant's use or enjoyment of the Premises, the likelihood that
Landlord or Tenant contemplated the particular Governmental
Requirements involved, and whether the Governmental
Requirements involved are related to Tenant's particular use
of the Premises. No occurrence or situation arising during the
term hereof, nor any present or future Governmental
Requirements, whether foreseen or unforeseen, and however
extraordinary, shall relieve Tenant from its obligations
hereunder, or shall give Tenant any right to terminate this
Lease in whole or in part or to otherwise seek redress against
Landlord. Tenant waives any rights now or hereafter conferred
upon it by any existing or future law to terminate this Lease,
to receive any abatement, diminution, reduction or suspension
of payment of rent, or to compel Landlord to make any repairs
to comply with any such Governmental Requirements, on account
of any such occurrence or situation. Tenant shall also comply
with all reasonable rules for the Project which may be
established and amended from time to time by Landlord. The
present rules and regulations are contained in EXHIBIT B.
Failure by another tenant to comply with the rules or failure
by Landlord to enforce them shall not relieve Tenant of its
obligation to comply with the rules or make Landlord
responsible to Tenant in any way. Landlord shall use
reasonable efforts to apply the rules and regulations
uniformly with respect to Tenant and any other tenants in the
Project under leases containing rules and regulations similar
to this Lease. All Work, alterations, repairs or improvements
performed by Tenant shall comply with the provisions of
Section 6 of this Lease and any applicable "Policies, Rules
and Regulations for Construction Projects" which may be
reasonably established by Landlord and in effect at the time.
Notwithstanding the foregoing, Landlord shall be responsible
for all ADA compliance costs required to be incurred in
connection with the common areas of the Project, except that
Tenant shall be solely responsible for all ADA compliance
costs which are required to be incurred in connection with the
common areas of the Project as a result of Tenant's particular
use or activities (e.g., alterations or repairs). Tenant shall
be solely responsible for all ADA compliance costs which are
required to be incurred within the Premises during the Term.
Landlord makes no representations or warranties regarding the
Project's or the Premises' compliance with the
ADA.
WAIVER OF CLAIMS; INDEMNIFICATION; INSURANCE
To
the extent permitted by law, Tenant waives any claims it may
have against Landlord or its officers, directors, employees or
agents for business interruption or damage to property
sustained by Tenant as the result of any act or omission of
Landlord, its agents or employees. To the extent permitted by
law, Landlord waives any claims it may have against Tenant or
its officers, directors, employees or agents for loss of rents
or damage to property sustained by Landlord as the result of
any act or omission of Tenant, its agents or
employees.
Except
for Landlord's or its agent's, employees or contractors
willful misconduct or active negligence, Tenant shall
indemnify, defend, and hold Landlord harmless from any and all
claims, liability, damage or loss, and from and against any
and all costs and expenses, including reasonable attorneys'
fees, arising out of: (a) any injury to or death of any person
or damage to or destruction of any property, from any cause
whatsoever occurring in or about the Premises or the Building
or the Project, and, if occurring in or about any portion of
the common areas or elsewhere in or about the Building or the
Project, when such injury or damage shall be caused in whole
or in part by the act, neglect, default or omission of any
duty by Tenant, its agents, employees or invitees or otherwise
by any conduct, or (b) transactions of any of said persons in
or about or concerning the Premises, including any failure of
Tenant to observe or perform any of its obligations. The
provisions of this Section 10.B shall survive the termination
of this Lease.
Except
for Tenant's or its employees, agents, contractors or invitees
willful misconduct or active negligence, Landlord shall
indemnify, defend, and hold Tenant harmless from any and all
claims, liability, damage or loss, and from and against any
and all costs and expenses, including reasonable attorneys'
fees, arising out of: any injury to or death of any person or
damage to or destruction of any property, occurring in or
about the Building or the Project, when such injury or damage
shall be caused in whole or in part by the willful misconduct
or active negligence of Landlord, its agents, employees or
contractors.
Tenant
shall maintain insurance as follows:
(1)
Commercial General Liability Insurance ,
with (a) contractual liability including the indemnification
provisions contained in this Lease, (b) a severability of interest
endorsement, (c) limits of not less than One Million Dollars
($1,000,000) combined single limit per occurrence and not less than
Two Million Dollars ($2,000,000) in the aggregate for bodily
injury, sickness or death, and property damage, and umbrella
coverage of not less than Three Million Dollars
($3,000,000).
(2)
Property Insurance against "All
Risks" of physical loss covering the replacement cost of all
Improvements. Tenant waives all rights of subrogation, and Tenant's
property insurance shall include a waiver of subrogation in favor
of Landlord.
(3)
Workers' Compensation or
similar insurance in form and amounts required by law, and
Employer's Liability with not less than the following
limits:
Each
Accident $500,000
Disease
- Policy Limit $500,000
Disease
- Each Employee $500,000
(4)
Such insurance which
Tenant is required to maintain shall contain a waiver of
subrogation provision in favor of Landlord and its agent. If in the
opinion of Landlord's insurance advisor, based on a substantial
increase in recovered liability claims, the aforesaid amounts of
coverage are no longer adequate, then such coverage shall be
proportionately increased. Tenant's insurance shall be primary and
not contributory to that carried by Landlord, its agents, or
mortgagee. Landlord, and if any, Landlord's building manager or
agent, mortgagee and ground lessor shall be named as additional
insureds. The company or companies writing any insurance which
Tenant is required to maintain under this Lease, as well as the
form of such insurance, shall at all times be subject to Landlord's
approval, and any such company shall be licensed to do business in
the State of California. Such insurance companies shall have a A.M.
Best rating of A VI or better. Should this Lease be canceled due to
damage or destruction to or condemnation of the Premises and Tenant
is thus relieved of its obligation to restore or rebuild the
improvements on the Premises, any insurance proceeds for damage to
the Premises, including all fixtures and leasehold improvements
thereon, shall belong to
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