Exhibit 10.17
TORREY PLAZA
LEASE
PACIFIC PLAZA OWNER, L.L.C.,
a Delaware limited liability company,
as Landlord,
and
JANUX THERAPEUTICS, INC.,
a Delaware corporation,
as Tenant
|
|
|
SUMMARY OF BASIC LEASE INFORMATION
This Summary of Basic Lease Information ("Summary") is hereby incorporated into and made a part of the attached Lease. Each reference in the Lease to any term of this Summary shall have the meaning as set forth in this Summary for such term. In the event of a conflict between the terms of this Summary and the Lease, the terms of the Lease shall prevail. Any capitalized terms used herein and not otherwise defined herein shall have the meaning as set forth in the Lease.
TERMS OF LEASE | DESCRIPTION |
1. Date: | October 1, 2021 (the "Effective Date") |
2. Landlord: | PACIFIC PLAZA OWNER, L.L.C., |
| -i- |
|
3. Address of Landlord (Section 24.19): | For notices to Landlord: c/o Breakthrough Properties 10945 Vista Sorrento Parkway, Suite 150 San Diego, California 92130 Attention: Head of Operations Email: and to: c/o Breakthrough Properties 1230 Ave of the Americas, 16th Floor New York, New York 10020 Attention: Legal Email: with copies to: Allen Matkins Leck Gamble Mallory & Natsis LLP and to: c/o Tishman Speyer 45 Rockefeller Plaza New York, New York 10111 Attention: Chief Financial Officer cc: General Counsel Email: and to: c/o Bellco Capital 2049 Century Park East, Suite 1940 Los Angeles, California 90067 Attention: Josh Bradley, Chief Investment Officer Email: and to (Construction-related notices only): c/o Breakthrough Properties 10945 Vista Sorrento Parkway, Suite 150 San Diego, CA 92130 Attention: Development and Project Management Attention: Jonathan Parot |
| -ii- |
|
| For payment of Rent only: If by USPS: Pacific Plaza Owner, L.L.C. PO Box 847889 Los Angeles, California 90084-7889 If by Overnight Delivery: Lockbox Services 847889 Attention: Pacific Plaza Owner, L.L.C. 3440 Flair Drive El Monte, California 91731 If by Wire or ACH: Wells Fargo Bank, N.A. San Francisco, CA ABA # 121 000 248 Acct # 4943893479 Acct Name: PACIFIC PLAZA OWNER, LLC (DACA) |
4. Tenant: | JANUX THERAPEUTICS, INC., |
5. Address of Tenant (Section 24.19): | Janux Therapeutics, Inc. 10590 West Ocean Air Drive San Diego, California 92130 Attention: James Pennington (Prior to Lease Commencement Date) |
| and 10955 Vista Sorrento Parkway, Suite 300 San Diego, CA 92130 Attention: James Pennington
With copy to Cooley LLP 4401 Eastgate Mall San Diego, CA 92121 Attention: David L. Crawford (After Lease Commencement Date) |
6. Premises, Building and Project (Article 1): |
|
| -iii- |
|
6.1 Premises: | 47,296 rentable square feet of space located in the entirety of the second (2nd) floor of the Building (as defined below) and commonly known as Suite 200 and the third (3rd) floor of the Building and commonly known as Suite 300, as depicted on Exhibit A attached hereto. | ||
6.2 Building: | The Premises are located in the building whose address is 10955 Vista Sorrento Parkway, San Diego, California (the "Building"), as depicted on the site plan attached hereto as Exhibit A‑1. | ||
6.3 Project: | The Project is defined in Section 1.1.2. | ||
7. Term (Article 2): |
| ||
7.1 Lease Term: | One hundred twenty-six (126) months. | ||
7.2 Lease Commencement Date: | The earlier of (i) the date Tenant commences business operations in the Premises, or (ii) the date the Premises are Ready for Occupancy (as defined in the Tenant Work Letter attached hereto as Exhibit B). The anticipated Lease Commencement Date is July 1, 2022 ("Anticipated Lease Commencement Date"). | ||
7.3 Lease Expiration Date: | The last day of the month in which the one hundred twenty-sixth (126th) monthly anniversary of the Lease Commencement Date occurs. | ||
8. Base Rent (Article 3): |
| ||
Lease Period | Annual | Monthly Installment | Monthly Rental Rate |
1 – 12*** | $3,263,424.00 | $271,952.00 | $5.75 |
13 – 24 | $3,361,326.72 | $280,110.56 | $5.92 |
25 – 36 | $3,462,166.56 | $288,513.88 | $6.10 |
37 – 48 | $3,566,031.60 | $297,169.30 | $6.28 |
49 – 60 | $3,673,012.56 | $306,084.38 | $6.47 |
61 – 72 | $3,783,202.92 | $315,266.91 | $6.67 |
73 – 84 | $3,896,699.04 | $324,724.92 | $6.87 |
85 – 96 | $4,013,600.04 | $334,466.67 | $7.07 |
97 – 108 | $4,134,008.04 | $344,500.67 | $7.28 |
109 – 120 | $4,258,028.28 | $354,835.69 | $7.50 |
121 – 126 | $4,385,769.12 | $365,480.76 | $7.73 |
| -iv- |
|
*The initial monthly installment of Base Rent amount was calculated by multiplying the initial monthly Base Rent per rentable square foot amount by the number of rentable square feet of space in the Premises, and the Annual Base Rent amount was calculated by multiplying the initial monthly installment of Base Rent amount by twelve (12). In all subsequent Base Rent payment periods during the Lease Term commencing on the first (1st) anniversary of the Lease Commencement Date, the calculation of each monthly installment of Base Rent amount reflects an annual increase of three percent (3.0%) and each Annual Base Rent amount was calculated by multiplying the corresponding monthly installment of Base Rent amount by twelve (12). **The amounts identified in the column entitled "Monthly Rental Rate per Rentable Square Foot" are rounded amounts provided for information purposes only. ***Subject to abatement as provided in Article 3 below. | |
9. Tenant's Share of Operating Expenses, Taxes and Utilities Costs (Section 4.2.4): | 69.90% (47,296 rentable square feet within the Premises/67,672 rentable square feet within the Building). |
10. Letter of Credit (Article 20): | $815,856.00, subject to reduction in accordance with Article 20 below. |
11. Brokers (Section 24.25): | Cushman & Wakefield representing Landlord, and Hughes Marino representing Tenant. |
12. Parking (Article 23): | Total of one hundred twenty (120) unreserved parking spaces. |
13. Landlord's Agent: | Breakthrough Spaces, L.L.C. and Breakthrough Development, L.L.C. (collectively, "Landlord's Agent"). |
14. Permitted Use: | Research and development, laboratory, vivarium, office and legal ancillary uses consistent with the character of the Project as a first-class biotechnology project. |
| -v- |
|
TABLE OF CONTENTS
Page
ARTICLE 1 | PROJECT, BUILDING, PREMISES AND RIGHT OF FIRST OFFER | 1 |
|
|
|
ARTICLE 2 | LEASE TERM | 5 |
|
|
|
ARTICLE 3 | BASE RENT | 5 |
|
|
|
ARTICLE 4 | ADDITIONAL RENT | 6 |
|
|
|
ARTICLE 5 | USE OF PREMISES; HAZARDOUS MATERIALS; ODORS AND EXHAUST | 13 |
|
|
|
ARTICLE 6 | SERVICES; UTILITIES; AND COMMON AREAS | 19 |
|
|
|
ARTICLE 7 | REPAIRS | 22 |
|
|
|
ARTICLE 8 | ADDITIONS AND ALTERATIONS | 23 |
|
|
|
ARTICLE 9 | COVENANT AGAINST LIENS | 25 |
|
|
|
ARTICLE 10 | INDEMNIFICATION AND INSURANCE | 26 |
|
|
|
ARTICLE 11 | DAMAGE AND DESTRUCTION | 28 |
|
|
|
ARTICLE 12 | CONDEMNATION | 30 |
|
|
|
ARTICLE 13 | COVENANT OF QUIET ENJOYMENT | 31 |
|
|
|
ARTICLE 14 | ASSIGNMENT AND SUBLETTING | 31 |
|
|
|
ARTICLE 15 | SURRENDER; OWNERSHIP AND REMOVAL OF PERSONAL PROPERTY | 35 |
|
|
|
ARTICLE 16 | HOLDING OVER | 37 |
|
|
|
ARTICLE 17 | ESTOPPEL CERTIFICATES | 37 |
|
|
|
ARTICLE 18 | SUBORDINATION | 38 |
|
|
|
ARTICLE 19 | TENANT'S DEFAULTS; LANDLORD'S REMEDIES | 39 |
|
|
|
ARTICLE 20 | LETTER OF CREDIT | 44 |
|
|
|
ARTICLE 21 | COMPLIANCE WITH LAW | 46 |
|
|
|
ARTICLE 22 | ENTRY BY LANDLORD | 46 |
|
|
|
ARTICLE 23 | PARKING | 47 |
|
|
|
ARTICLE 24 | MISCELLANEOUS PROVISIONS | 47 |
| (i) |
|
EXHIBITS:
Exhibit A | Outline of Floor Plan of Premises |
Exhibit A‑1 | Site Plan of Project |
Exhibit A‑2 | Plans Showing Office Areas and Lab Areas |
Exhibit B | Tenant Work Letter |
Exhibit C | Base Building Work Matrix |
Exhibit D | Confirmation of Lease Terms/Amendment to Lease |
Exhibit E | Rules and Regulations |
Exhibit F | Schedule of Tenant's Hazardous Materials |
Exhibit G | Form of Environmental Questionnaire |
Exhibit H | Form of Letter of Credit |
Exhibit I | Tenant's Building-Top Signage Location |
Exhibit J | Form of Subordination, Non-Disturbance and Attornment Agreement |
Rider | Extension Option Rider |
| (ii) |
|
INDEX
Page(s)
Abated Rent | 6 |
Accountant | 13 |
Additional Allowance | Exhibit B |
Additional Rent | 6 |
Adverse Event | 55 |
Affected Areas | 15 |
Allowances | Exhibit B |
Alterations | 23 |
Amenities Facilities | 21 |
Amenities Facilities Operating Expenses | 21 |
Amortization Period | Exhibit B |
Amortization Rent | Exhibit B |
Anticipated Lease Commencement Date | Summary |
Approved Working Drawings | Exhibit B |
Architect | Exhibit B |
Assessed Valuation | 6 |
Bank | 44 |
Bankruptcy Code | 40 |
Base Building Work | 3, Exhibit B |
Base Rent | 5 |
Brokers | 52 |
Building | Summary |
Calendar Year | 6 |
CASp Reports | 3 |
CC&Rs | 14 |
Comparable Buildings | 19 |
Confirmation/Amendment | Exhibit D |
Conservation Costs | 7 |
Construction | 53 |
Construction Drawings | Exhibit B |
Construction Hours | Exhibit B |
Contractor | Exhibit B |
Corrective Action | 16 |
Cost Pools | 7 |
CRO | 35 |
Cutoff Date | 10 |
Decommissioning Closure Report | 36 |
Documents | 15 |
Effective Date | Summary |
Eligibility Period | 21 |
Engineers | Exhibit B |
Environmental Law | 14 |
Environmental Permits | 14 |
Environmental Questionnaire | 15 |
Estimate | 10 |
Estimate Statement | 10 |
Estimated Expenses | 10 |
Estimated Repair Completion Date | 29 |
Event of Default | 39 |
Excluded Changes | 46 |
| (iii) |
|
Page(s)
Exercise Notice | Rider |
Expense Year | 6 |
Extension Option | Rider |
Extension Rider | Rider |
Fair Market Rental Rate | Rider |
Final Space Plan | Exhibit B |
Final Working Drawings | Exhibit B |
First Offer Economic Terms | 4 |
First Offer Notice | 4 |
First Offer Space | 3 |
Fitness Center | 21 |
Force Majeure | 51 |
Free Rent Day | 5 |
Generator | 22 |
GMAX Approval Date | Exhibit B |
Governmental Approvals | 49 |
Hazardous Materials | 14 |
Hazardous Materials List | 15 |
HVAC | 19 |
Hygienist | 36 |
Insured Parties | 26 |
Interest Rate | 12 |
Lab Allocation | 14 |
Lab Areas | 13 |
Labor Disruption | Exhibit E |
Landlord | 1 |
Landlord Parties | 50 |
Landlord Remediation Actions | 37 |
Landlord Supervision Fee | Exhibit B |
Landlord's Agent | Summary |
LC Expiration Date | 44 |
L-C Reduction Amendment | 46 |
L-C Reduction Amount | 46 |
L-C Reduction Condition | 46 |
Lease | 1 |
Lease Commencement Date | 5 |
Lease Documents | 50 |
Lease Expiration Date | 5 |
Lease Term | 5 |
Lease Year | 5 |
Letter of Credit | 44 |
Letter of Credit Amount | 44 |
Market Area | Rider |
Mortgagees | 38 |
Mortgages | 38 |
Notices | 51 |
Objectionable Name | 49 |
OFAC | 51 |
Office Allocation | 14 |
Office Areas | 13 |
Operating Expenses | 6 |
Option Rent | Rider |
Option Rent Notice | Rider |
Option Term | Rider |
Original Tenant | 4 |
| (iv) |
|
Page(s)
Other Buildings | 10 |
Other Existing Buildings | 1 |
Outside Agreement Date | Rider |
Outside Date | 5 |
Over-Allowance Amount | Exhibit B |
Ownership Interests | 34 |
Parking Facility | 1 |
Parking Operator | 47 |
Permits | Exhibit B |
Permitted Alterations | 23 |
Permitted Animals | 21 |
Permitted Transfer | 35 |
Permitted Transferee | 35 |
Preliminary GMAX | 4 |
Premises | 1 |
Premises Systems | 22 |
Prohibited Alterations | 23 |
Prohibited Person | 52 |
Project | 1 |
Proposition 13 | 9 |
Ready for Occupancy | Exhibit B |
Real Property | 8 |
Reduction Date | 46 |
Reimbursable Capital Expenditures | 7 |
Related Entity | 35 |
Release | 15 |
Rent | 6 |
Requirements | 14 |
Restoration Clearances | 29 |
Revenue Code | 32 |
Review Period | 12 |
ROFO Exercise Notice | 4 |
ROFO Superior Leases | 3 |
ROFO Superior Rights | 3 |
Rooftop Equipment | 56 |
Security Deposit Laws | 46 |
Sensor Areas | 57 |
Soft Costs | Exhibit B |
Specially Designated National and Blocked Person | 52 |
Specialty Alterations | 24 |
Specifications | Exhibit B |
Statement | 10 |
Subject Space | 31 |
Subleasing Costs | 33 |
Substantial Completion | Exhibit B |
Successor Landlord | 38 |
Summary | Summary |
Superior Leases | 38 |
Superior Lessors | 38 |
Surrender Plan | 36 |
Systems and Equipment | 8 |
Taking | 30 |
Tax Estimate | 11 |
Taxes | 8 |
Tenant | 1 |
| (v) |
|
Page(s)
Tenant Delays | Exhibit B |
Tenant Improvement Allowance | Exhibit B |
Tenant Improvement Allowance Items | Exhibit B |
Tenant Improvements | Exhibit B |
Tenant Parties | 18 |
Tenant Work Letter | Exhibit B |
Tenant’s Property | 27 |
Tenant-Insured Improvements | 27 |
Tenant's Parties | 15 |
Tenant's Share | 9 |
Tenant's Signage | 49 |
Tenant's Tax Payment | 11 |
Threshold Amount | 17 |
Transfer Notice | 31 |
Transfer Premium | 33 |
Transferee | 31 |
Transfers | 31 |
Trash | 54 |
Unavoidable Delays | 55 |
Utilities Costs | 9 |
Vivarium | 21 |
Void Transfer | 32 |
Water Sensors | 57 |
Wi-Fi Network | 25 |
Working Drawing Design Problem | Exhibit B |
| (vi) |
|
LEASE
This Lease, which includes the preceding Summary and the exhibits attached hereto and incorporated herein by this reference (the Lease, the Summary and the exhibits to be known sometimes collectively hereafter as the "Lease"), dated as of the Effective Date, is made by and between PACIFIC PLAZA OWNER, L.L.C., a Delaware limited liability company "Landlord"), and JANUX THERAPEUTICS, INC., a Delaware corporation ("Tenant").
PROJECT, BUILDING, PREMISES AND RIGHT OF FIRST OFFER
"A Certified Access Specialist (CASp) can inspect the subject premises and determine whether the subject premises comply with all of the applicable construction-related accessibility standards under state law. Although state law does not require a CASp inspection of the subject premises, the commercial property owner or lessor may not prohibit the lessee or tenant from obtaining a CASp inspection of the subject premises for the occupancy or potential occupancy of the lessee or tenant, if requested by the lessee or tenant. The parties shall
| -2- |
|
mutually agree on the arrangements for the time and manner of the CASp inspection, the payment of the fee for the CASp inspection, and the cost of making any repairs necessary to correct violations of construction-related accessibility standards within the premises."
In furtherance of and in connection with such notice: (i) Tenant, having read such notice and understanding Tenant's right to request and obtain a CASp inspection and with advice of counsel, hereby elects not to obtain such CASp inspection and waives its rights to obtain a CASp inspection with respect to the Premises, Building and/or Project to the extent permitted by any Requirements now or hereafter in effect; and (ii) if the waiver set forth in clause (i) hereinabove is not enforceable pursuant to any Requirements, then Landlord and Tenant hereby agree as follows (which constitute the mutual agreement of the parties as to the matters described in the last sentence of the foregoing notice): (A) Tenant shall have the one-time right to request for and obtain a CASp inspection, which request must be made, if at all, in a written notice delivered by Tenant to Landlord on or before that date which is ten (10) days after the Effective Date; (B) any CASp inspection timely requested by Tenant shall be conducted (1) between the hours of 9:00 a.m. and 5:00 p.m. on any business day, (2) only after ten (10) days' prior written notice to Landlord of the date of such CASp inspection, (3) in a professional manner by a CASp designated by Landlord and without any testing that would damage the Premises, Building or Project in any way, and (4) at Tenant's sole cost and expense, including, without limitation, Tenant's payment of the fee for such CASp inspection, the fee for any reports prepared by the CASp in connection with such CASp inspection (collectively, the "CASp Reports") and all other costs and expenses in connection therewith; (C) Tenant shall deliver a copy of any CASp Reports to Landlord within three (3) business days after Tenant's receipt thereof; (D) Tenant, at its sole cost and expense, shall be responsible for making any improvements, alterations, modifications and/or repairs to or within the Premises to correct violations of construction-related accessibility standards including, without limitation, any violations disclosed by such CASp inspection; and (E) if such CASp inspection identifies any improvements, alterations, modifications and/or repairs necessary to correct violations of construction-related accessibility standards relating to those items of the Building and Project located outside the Premises that are Landlord's obligation to repair under the Lease (as amended hereby), then Landlord shall perform such improvements, alterations, modifications and/or repairs as and to the extent required by any Requirements to correct such violations, and Tenant shall reimburse Landlord for the cost of such improvements, alterations, modifications and/or repairs within ten (10) business days after Tenant's receipt of an invoice therefor from Landlord.
| -3- |
|
| -4- |
|
LEASE TERM
The terms and provisions of this Lease shall be effective as of the Effective Date and shall be fully binding on Landlord and Tenant. The term of this Lease (the "Lease Term") shall be as set forth in Section 7.1 of the Summary and shall commence on the date (the "Lease Commencement Date") set forth in Section 7.2 of the Summary (subject, however, to the terms of the Tenant Work Letter), and shall terminate on the date (the "Lease Expiration Date") set forth in Section 7.3 of the Summary, unless this Lease is sooner terminated or extended as hereinafter provided. For purposes of this Lease, the term "Lease Year" shall mean each consecutive twelve (12) month period during the Lease Term, provided that the last Lease Year shall end on the Lease Expiration Date. If Landlord does not deliver possession of the Premises to Tenant Ready for Occupancy on or before the Anticipated Lease Commencement Date (as set forth in Section 7.2 of the Summary) in the condition required in Exhibit B attached hereto, Landlord shall not be subject to any liability nor shall the validity of this Lease nor the obligations of Tenant hereunder be affected but, subject to Tenant Delays, no Rent shall be due hereunder until Landlord's delivers possession of the Premises to Tenant Ready for Occupancy (subject, however, to acceleration of the Lease Commencement Date due to Tenant Delays as provided in Exhibit B); provided, however, if Landlord does not make possession of the Premises available to Tenant Ready for Occupancy on or before that date which is sixty (60) days after the Anticipated Lease Commencement Date ("Outside Date"), subject to deferral for Tenant Delays (as defined in Section 5.2 of Exhibit B) and Force Majeure delays (as defined in Section 24.17 below), then Tenant shall receive one (1) Free Rent Day (as hereinafter defined) for each day that elapses from and after the Outside Date until and including the date on which Landlord makes possession of the Premises available to Tenant Ready for Occupancy. A "Free Rent Day" means a day for which Tenant has no obligation to pay Base Rent and all Free Rent Days shall be applied as soon as possible following the Lease Commencement Date and any periods of Abated Rent. If the Lease Commencement Date is a date which is other than the date set forth in Section 7.2(ii) of the Summary, then, following the Lease Commencement Date, Landlord shall deliver to Tenant an amendment in the form as set forth in Exhibit D, attached hereto, setting forth, among other things, the Lease Commencement Date and the Lease Expiration Date, which amendment Tenant shall execute and return (or provide factual corrections to) to Landlord within five (5) business days after Tenant's receipt thereof. If Tenant fails to execute and return the amendment within such 5-business day period, Tenant shall be deemed to have approved and confirmed the dates set forth therein, provided that such deemed approval shall not relieve Tenant of its obligation to execute and return (or provide factual corrections to) the amendment (and such failure shall constitute a default by Tenant hereunder). If Landlord does not deliver such amendment to Tenant, the Lease Commencement Date shall be deemed to be the date set forth in Section 7.2(ii) of the Summary.
BASE RENT
Tenant shall pay, without notice or demand, to Landlord at the address set forth in Section 3 of the Summary, or at such other place as Landlord may from time to time designate in writing, in lawful money of the United States of America by ACH (Automated Clearing House) payment or wire transfer of funds or by check, base rent ("Base Rent") as set forth in Section 8 of the Summary, payable in equal monthly installments as set forth in Section 8 of the Summary in advance on or before the first day of each and every month during the Lease Term, without any setoff or deduction whatsoever, except as expressly provided in this Lease. Concurrently with Tenant's execution of this Lease, Tenant shall deliver to Landlord an amount equal to the Base Rent payable by Tenant for the Premises for the seventh (7th) full month of the Lease Term (i.e., $271,952.00). If any rental payment date (including the Lease Commencement Date) falls on a day of the month other than the first day of such month or if any rental payment is for a period which is shorter than one month, then the rental for any such fractional month shall be a proportionate amount of a full calendar month's rental based on the proportion that the number of days in such fractional month bears to the number of days in the calendar month during which such fractional month occurs. If the Lease Commencement Date falls on the first day of a month, the Base Rent delivered on the Effective Date shall be credited towards the first month's Base Rent (as defined in Article 4 below) payments. If the Lease Commencement Date is not on the first day of a month, then, on the Lease Commencement Date, Tenant shall pay Base Rent for the period from the Lease Commencement Date through the last day of the month, and the Base Rent paid in advance on the Effective Date shall be credited towards Base Rent for the succeeding calendar month. All other payments or adjustments required to be made under the terms of this Lease that require proration on a time basis shall be prorated on the same basis.
| -5- |
|
Notwithstanding anything to the contrary contained herein and so long as no Event of Default exists under this Lease (beyond the expiration of all applicable notice and cure periods), Landlord hereby agrees to abate Tenant's obligation to pay one hundred percent (100%) of Tenant's monthly Base Rent during the period which is the first (1st), second (2nd), third (3rd), fourth (4th), fifth (5th) and sixth (6th) full calendar months following the Lease Commencement Date (collectively the "Abated Rent"). During such abatement period, Tenant shall still be responsible for the payment of all of its other monetary obligations under this Lease. In the event of a default by Tenant under the terms of this Lease that results in early termination pursuant to the provisions of Article 19 of this Lease, then as part of the recovery set forth in Article 19 of this Lease, Landlord shall be entitled to the recovery of the unamortized amount of monthly Base Rent that was abated under the provisions of this Article 3.
ADDITIONAL RENT
| -6- |
|
Subject to the provisions of Section 4.3.4 below, Landlord shall have the right, from time to time, to equitably allocate some or all of the Operating Expenses (and/or Taxes and Utilities Costs) between the Building and the Other Existing Buildings and/or among different tenants of the Project and/or among the Other Existing Buildings, if any, as and when such different buildings are constructed and added to (and/or excluded from) the Project or otherwise (the "Cost Pools"). Such Cost Pools may also include an allocation of certain Operating Expenses (and/or Taxes and Utilities Costs) within or under covenants, conditions and restrictions affecting the Project. In addition, Landlord shall have the right from time to time, in its reasonable discretion, to include or exclude existing or future buildings in the Project for purposes of determining Operating Expenses, Taxes and Utilities Costs and/or the provision of various services and amenities thereto, including allocation of Operating Expenses, Taxes and Utilities Costs in any such Cost Pools.
| -7- |
|
Notwithstanding the foregoing, Operating Expenses shall not, however, include: (A) costs of leasing commissions, attorneys' fees and other costs and expenses incurred in connection with negotiations or disputes with present or prospective tenants or other occupants of the Project; (B) costs (including permit, license and inspection costs) incurred in renovating or otherwise improving, decorating or redecorating rentable space for other tenants or vacant rentable space; (C) costs incurred due to the violation by Landlord of the terms and conditions of any lease of space in the Project; (D) costs of overhead or profit increment paid to Landlord or to subsidiaries or affiliates of Landlord for services in or in connection with the Project to the extent the same exceeds the costs of overhead and profit increment included in the costs of such services which could be obtained from third parties on a competitive basis; (D) except as otherwise specifically provided in this Section 4.2.4, costs of interest on debt or amortization on any mortgages, and rent payable under any ground lease of the Project; (F) costs for which the Landlord is reimbursed by any tenant or occupant of the Project or by insurance by its carrier or any tenant's carrier or by anyone else; (G) any bad debt loss, rent loss, or reserves for bad debts or rent loss; (H) costs associated with the operation of the business of the partnership or entity which constitutes the Landlord, as the same are distinguished from the costs of operation of the Project; (I) the wages and benefits of any employee who does not devote substantially all of his or her employed time to the Project unless such wages and benefits are prorated to reflect time spent on operating and managing the Project vis-a-vis time spent on matters unrelated to operating and managing the Project, provided, that in no event shall Operating Expenses for purposes of this Lease include wages and/or benefits attributable to personnel above the level of asset manager; (J) costs resulting from the gross negligence or willful misconduct of Landlord or its agents, employees, vendors, contractors, or providers of materials or services; (K) costs incurred to comply with laws relating to the removal of Hazardous Materials (as defined under Environmental Laws) which was in existence in the Building or on the Project prior to the Lease Commencement Date, and was of such a nature that a federal, state or municipal governmental authority, if it had then had knowledge of the presence of such Hazardous Materials, in the state, and under the conditions that it then existed in the Building or on the Project, would have then required the removal of such Hazardous Materials or other remedial or containment action with respect thereto; and costs incurred to remove, remedy, contain, or treat Hazardous Materials, which Hazardous Materials are brought into the Building or onto the Project after the date hereof by Landlord or any other tenant of the Project and is of such a nature, at that time, that a federal, state or municipal governmental authority, if it had then had knowledge of the presence of such Hazardous Materials, in the state, and under the conditions, that it then exists in the Building or on the Project, would have then required the removal of such Hazardous Materials or other remedial or containment action with respect thereto; (L) any transactional costs incurred in connection with a sale or financing of the Building or Project or of Landlord's interest therein; (M) interest, fines or penalties for late payments by Landlord of costs or expenses that Landlord includes in Operating Expenses; (N) Utilities Costs; (O) Taxes; and (P) any profit related to the excess collection of Operating Expenses or collection of Operating Expenses in excess of 100% of the actual Operating Expenses.
| -8- |
|
| -9- |
|
| -10- |
|
| -11- |
|
| -12- |
|
USE OF PREMISES; HAZARDOUS MATERIALS; ODORS AND EXHAUST
| -13- |
|
As used in this Lease, "Requirements" shall mean present and future laws, rules, orders, ordinances, regulations, statutes, requirements, codes and executive orders, extraordinary and ordinary of (i) all Governmental Authorities, including, without limitation, (A) the Americans With Disabilities Act, 42 U.S.C. §12101 (et seq.), and any law of like import, and all rules, regulations and government orders with respect thereto, and (B) any Environmental Laws and Environmental Permits (as defined in Section 5.2.1 below), environmental matters, public health and safety matters and landmarks protection, (ii) any applicable fire rating bureau or other body exercising similar functions, affecting the Real Property or the maintenance, use or occupation thereof, or any street, avenue or sidewalk comprising a part of or in front thereof or any vault in or under the same, (iii) all requirements of all insurance bodies affecting the Premises, (iv) utility service providers, and (v) Mortgagees or lessors. "Requirements" shall also include the terms and conditions of any certificate of occupancy issued for the Premises or the Building, and any CC&Rs (as defined below) affecting the Building and/or the Real Property from time to time. Tenant shall comply with the Rules and Regulations and all recorded covenants, conditions, and restrictions, and the provisions of all ground or underlying leases (collectively, the "CC&Rs"), as the same may be amended, amended and restated, supplemented or otherwise modified from time to time; provided that any such amendments, restatements, supplements or modifications (a) do not materially modify Tenant's rights or obligations hereunder, and (b) are provided to Tenant in writing no less than three (3) days prior to enforcement.
| -14- |
|
| -15- |
|
| -16- |
|
| -17- |
|
| -18- |
|
SERVICES; UTILITIES; AND COMMON AREAS
| -19- |
|
| -20- |
|
| -21- |
|
REPAIRS
| -22- |
|
ADDITIONS AND ALTERATIONS
| -23- |
|
| -24- |
|
COVENANT AGAINST LIENS
Tenant has no authority or power to cause or permit any lien or encumbrance of any kind whatsoever, whether created by act of Tenant, operation of law or otherwise, to attach to or be placed upon the Project, Building or Premises, and any and all liens and encumbrances created by Tenant shall attach to Tenant's interest only. Landlord shall have the right at all times to post and keep posted on the Premises any notice which it deems necessary for protection from such liens. Tenant shall not cause or permit any lien of mechanics or materialmen or others to be placed against the Project, the Building or the Premises with respect to work or services claimed to have been performed for or materials claimed to have been furnished to Tenant or the Premises, and, in case of any such lien attaching or notice of any lien, Tenant shall cause it to be immediately released and removed of record. If any such lien is not released and removed within ten (10) business days after notice of such lien is delivered by Landlord to Tenant, then Landlord may, at its option, take all action necessary to release and remove such lien, without any duty to investigate the validity thereof, and all sums, costs and expenses, including reasonable attorneys' fees and costs, incurred by Landlord in connection with such lien shall be deemed Additional Rent under this Lease and shall be due and payable by Tenant within thirty (30) days after written demand. In the event that Tenant leases or finances the acquisition of equipment, furnishings or other personal property of a removable nature utilized by Tenant in the operation of Tenant's business, Tenant warrants that any Uniform Commercial Code financing statement shall, upon its face or by exhibit thereto, indicate that such financing statement is applicable only to removable personal property of Tenant located within the Premises. In no event shall the address of the Premises be furnished on a financing statement without qualifying language as to applicability of the lien only to removable personal property located in an identified suite leased by Tenant. Should any holder of a Uniform Commercial Code financing statement record or place of record a financing statement that
| -25- |
|
appears to constitute a lien against any interest of Landlord or against equipment that may be located other than within an identified suite leased by Tenant, Tenant shall, within ten (10) business days after filing such financing statement, cause (a) a copy of the Lender security agreement or other documents to which the financing statement pertains to be furnished to Landlord to facilitate Landlord's ability to demonstrate that the lien of such financing statement is not applicable to Landlord's interest and (b) Tenant's lender to amend such financing statement and any other documents of record to clarify that any liens imposed thereby are not applicable to any interest of Landlord in the Premises.
INDEMNIFICATION AND INSURANCE
| -26- |
|
| -27- |
|
DAMAGE AND DESTRUCTION
| -28- |
|
| -29- |
|
CONDEMNATION
| -30- |
|
COVENANT OF QUIET ENJOYMENT
Landlord covenants that, so long as no Event of Default by Tenant has occurred hereunder, Tenant, on paying the Rent, charges for services and other payments herein reserved and on keeping, observing and performing all the other terms, covenants, conditions, and agreements herein contained on the part of Tenant to be kept, observed and performed, shall, during the Lease Term, peaceably and quietly have, hold and enjoy the Premises subject to the terms, covenants, conditions, and agreements hereof without interference by any persons lawfully claiming by or through Landlord. The foregoing covenant is in lieu of any other covenant express or implied.
ASSIGNMENT AND SUBLETTING
| -31- |
|
If Landlord consents to any Transfer pursuant to the terms of this Section 14.2 (and does not exercise any recapture rights Landlord may have under Section 14.4 below), Tenant may within six (6) months after Landlord's consent, enter into such Transfer of the Premises or portion thereof, upon substantially the same terms and conditions as are set forth in the Transfer Notice furnished by Tenant to Landlord pursuant to Section 14.1 above, provided that
| -32- |
|
if there are any changes in the terms and conditions from those specified in the Transfer Notice (i) such that Landlord would initially have been entitled to refuse its consent to such Transfer under this Section 14.2, or (ii) which would cause the proposed Transfer to be more favorable to the Transferee than the terms set forth in Tenant's original Transfer Notice, Tenant shall again submit the Transfer to Landlord for its approval and other action under this Article 14 (including Landlord's right of recapture, if any, under Section 14.4 of this Lease).
| -33- |
|
| -34- |
|
SURRENDER; OWNERSHIP AND REMOVAL OF PERSONAL PROPERTY
| -35- |
|
| -36- |
|
HOLDING OVER
If Tenant holds over after the expiration of the Lease Term hereof, with or without the express or implied consent of Landlord, such tenancy shall be from month-to-month only, and shall not constitute a renewal hereof or an extension for any further term, and in such case Base Rent shall be payable at a monthly rate (a) for the first (1st) month of any holding over, equal to one hundred twenty-five percent (125%), and (b) thereafter, equal to one hundred fifty percent (150%), of the Base Rent applicable during the last rental period of the Lease Term under this Lease. Such month-to-month tenancy shall be subject to every other term, covenant and agreement contained herein. Landlord hereby expressly reserves the right to require Tenant to surrender possession of the Premises to Landlord as provided in this Lease upon the expiration or other termination of this Lease. The provisions of this Article 16 shall not be deemed to limit or constitute a waiver of any other rights or remedies of Landlord provided herein or at law. If Tenant fails to surrender the Premises upon the termination or expiration of this Lease, in addition to any other liabilities to Landlord accruing therefrom, Tenant shall protect, defend, indemnify and hold Landlord harmless from all loss, costs (including reasonable attorneys' fees) and liability of Landlord to any successor tenant resulting from such failure, including, without limiting the generality of the foregoing, any claims made by any succeeding tenant founded upon such failure to surrender, and any lost profits to Landlord resulting therefrom for any holding over lasting longer than thirty (30) days.
ESTOPPEL CERTIFICATES
Within ten (10) business days following a request in writing by Landlord, Tenant shall execute and deliver to Landlord an estoppel certificate, which, as submitted by Landlord, shall be in the form as may be required by any prospective mortgagee or purchaser of the Project (or any portion thereof), indicating therein any exceptions thereto that may exist at that time, and shall also contain any other information reasonably requested by Landlord or Landlord's mortgagee or Landlord's prospective mortgagees. Tenant shall execute and deliver whatever other instruments may be reasonably required for such purposes. Failure of Tenant to timely execute and deliver such estoppel certificate or other instruments shall constitute an acceptance of the Premises and an acknowledgment by Tenant that statements included in the estoppel certificate are true and correct, without exception. Failure by Tenant to so deliver such estoppel certificate shall be a material default of the provisions of this Lease. In addition, Tenant shall be liable to Landlord, and shall indemnify Landlord from and against any loss, cost, damage or expense, incidental, consequential, or otherwise, including attorneys' fees, arising or accruing directly or indirectly, from any failure of Tenant to execute or deliver to Landlord any such estoppel certificate. Upon request from time to time, Tenant agrees to provide to Landlord, within ten (10) business days after Landlord's delivery of written request therefor, the most recent financial
| -37- |
|
statements for Tenant, dated no earlier than one (1) year prior to such written request, certified as accurate by Tenant or, if available, audited financial statements prepared by an independent certified public accountant with copies of the auditor's statement; provided, however, that such financial statement requirement shall not apply if and for so long as Tenant is a publicly traded company.
SUBORDINATION
| -38- |
|
Tenant shall, within ten (10) business days of request from Landlord, execute and deliver any commercially reasonable documents or instruments that may be reasonably required by any Mortgagee or lessor to confirm any subordination (or, if requested by any Mortgagee or Superior Lessor, priority).
TENANT'S DEFAULTS; LANDLORD'S REMEDIES
| -39- |
|
| -40- |
|
The term "rent" as used in this Section 19.2 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 19.2.1(i) and (ii), above, the "worth at the time of award" shall be computed by allowing interest at the Interest Rate set forth in Section 4.6 above. As used in Section 19.2.1(iii) 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 one percent (1%).
| -41- |
|
Should the rentals received from such reletting, when applied in the manner and order indicated above, at any time be less than the total amount owing from Tenant pursuant to this Lease, then Tenant shall pay such deficiency to Landlord, and if Tenant does not pay such deficiency within five (5) days of delivery of notice thereof to Tenant, Landlord may bring an action against Tenant for recovery of such deficiency or pursue its other remedies hereunder or under California Civil Code Section 1951.8, California Code of Civil Procedure Section 1161 et seq., or any similar, successor or related Requirements.
| -42- |
|
LETTER OF CREDIT
| -43- |
|
| -44- |
|
| -45- |
|
COMPLIANCE WITH LAW
Tenant shall not do anything or suffer anything to be done in or about the Premises which will in any way conflict with any law, statute, ordinance or other governmental rule, regulation or requirement now in force or which may hereafter be enacted or promulgated. At its sole cost and expense, Tenant shall promptly comply with all such governmental measures, other than (i) correcting violations existing as of the Lease Commencement Date, (ii) making of structural changes or changes to the Building's systems or Common Areas (collectively the "Excluded Changes"); provided, however, to the extent such Excluded Changes are required due to or triggered by Tenant's improvements or alterations to (other than the Tenant Improvements) and/or specific manner of use of the Premises following Substantial Completion of the Tenant Improvements, Tenant shall perform such work, at Tenant's cost and expense. Landlord will use commercially reasonable efforts to minimize unreasonable interference with Tenant's use of the Premises in connection with any such work performed by Landlord. In addition, Tenant shall fully comply with all present or future programs intended to manage parking, transportation or traffic in and around the Project, and in connection therewith, Tenant shall take responsible action for the transportation planning and management of all employees located at the Premises by working directly with Landlord, any governmental transportation management organization or any other transportation-related committees or entities. The judgment of any court of competent jurisdiction or the admission of Tenant in any judicial action, regardless of whether Landlord is a party thereto, that Tenant has violated any of said governmental measures, shall be conclusive of that fact as between Landlord and Tenant.
ENTRY BY LANDLORD
Landlord reserves the right at all reasonable times and upon reasonable notice (of not less than one (1) business day, except in case of an emergency where no notice shall be required) to Tenant to enter the Premises to: (i) inspect them; (ii) show the Premises to prospective purchasers, mortgagees, ground lessors or, during the last nine (9) months of the Term, to tenants; (iii) to post notices of nonresponsibility; or (iv) alter, improve or repair the Premises or the Building if necessary to comply with current building codes or other applicable Requirements, or for structural alterations, repairs or improvements to the Building, or as Landlord may otherwise reasonably desire or deem necessary. Notwithstanding anything to the contrary contained in this Article 22, Landlord may enter the Premises at any time, without notice to Tenant, in emergency situations and/or to perform janitorial or other services required of Landlord pursuant to this Lease. Any such entries shall be without the abatement of Rent and shall include the right to take such reasonable steps as required to accomplish the stated purposes. In exercising its rights under this Article, Landlord will use commercially reasonable efforts to minimize unreasonable interference with Tenant's use of the Premises. Tenant hereby waives any claims for damages or for any injuries or inconvenience to or interference with Tenant's business, lost profits, any loss of occupancy or quiet enjoyment of the Premises, and any other loss occasioned thereby. For each of the above purposes, Landlord shall at all times have a key with which to unlock all the doors in the Premises, excluding Tenant's vaults, safes and special security areas designated in advance by Tenant. In an emergency, Landlord shall have the right to enter without notice and use any means that Landlord may deem proper to open the doors in and to the Premises. Any entry into the Premises in the manner hereinbefore described shall not be deemed to be a forcible or unlawful entry into, or a detainer of, the Premises, or an actual or constructive eviction of Tenant from any portion of the Premises.
| -46- |
|
PARKING
Throughout the Lease Term, Tenant shall have the right to use, on a "first-come, first-serve" basis, in common with other tenants of the Building and free of parking charges, the number of reserved and unreserved parking spaces set forth in Section 12 of the Summary. Tenant's unreserved parking spaces shall be located in the Parking Facility servicing the Building as shall be designated by Landlord from time to time for unreserved parking for the tenants of the Building. Tenant's continued right to use the parking spaces is conditioned upon (i) Tenant abiding by (A) the Parking Rules and Regulations which are in effect on the Effective Date, as set forth in the attached Exhibit E and all reasonable modifications and additions thereto which are prescribed from time to time for the orderly operation and use of the Parking Facility by Landlord, and/or Landlord's Parking Operator (as defined below), and (B) all recorded covenants, conditions and restrictions affecting the Building, and (ii) upon Tenant's cooperation in seeing that Tenant's employees and visitors also comply with the Parking Rules and Regulations (and all such reasonable modifications and additions thereto, as the case may be), any such other rules and regulations and covenants, conditions and restrictions. Tenant's right to use parking spaces shall not be permanently reduced below the parking allocation set forth in Section 12 of the Summary, Landlord (and/or any other owners of the Project) specifically reserve the right to change the size, configuration, design, layout, location and all other aspects of the Parking Facility (including without limitation, implementing paid visitor parking and a valet system), and Tenant acknowledges and agrees that Landlord may, without incurring any liability to Tenant and without any abatement of Rent under this Lease, from time to time temporarily close-off or restrict access to the Parking Facility, for repair work or alterations and improvements. Landlord may delegate its responsibilities hereunder to a parking operator (the "Parking Operator") in which case the Parking Operator shall have all the rights of control attributed hereby to Landlord. Any parking tax or other charges imposed by governmental authorities in connection with the use of such parking shall be paid directly by Tenant or the parking users, or, if directly imposed against Landlord, Tenant shall reimburse Landlord for all such taxes and/or charges within thirty (30) days after Landlord's written demand therefor. As of the date hereof, there are no parking taxes imposed by any governmental authorities pertaining to the Project. The parking rights provided to Tenant pursuant to this Article 23 are provided solely for use by Tenant's personnel and visitors (and the users described in Section 14.9 above) and such rights may not be transferred, assigned, subleased or otherwise alienated by Tenant without Landlord's prior approval, except in connection with an assignment of this Lease or sublease of the Premises made in accordance with Article 14 above. All visitor parking by Tenant's visitors shall be subject to availability, as reasonably determined by Landlord (and/or the Parking Operator, as the case may be), parking in such visitor parking areas as may be designated by Landlord (and/or the Parking Operator from time to time. Tenant shall also have the right, in common with other tenants of the Project, to use the five (5) visitor parking spaces in front of the Building for parking by Tenant's visitors to the Premises.
MISCELLANEOUS PROVISIONS
| -47- |
|
| -48- |
|
| -49- |
|
| -50- |
|
| -51- |
|
| -52- |
|
| -53- |
|
| -54- |
|
| -55- |
|
| -56- |
|
[Remainder of Page Intentionally Left Blank; Signatures on Next Page]
| -57- |
|
IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be executed the day and date first above written.
"Landlord":
PACIFIC PLAZA OWNER, L.L.C.,
a Delaware limited liability company
By: /s/ Daniel D’Orazi
Name: Daniel D’Orazi
Its: Executive Vice President, Head of Acquisitions
"Tenant":
JANUX THERAPEUTICS, INC.,
a Delaware corporation
By: /s/ David Campbell
Name: David Campbell
Its: President and Chief Executive Officer
| -58- |
|
EXHIBIT A
OUTLINE OF FLOOR PLAN OF PREMISES
[Floorplan]
| -1- |
|
EXHIBIT A-1
SITE PLAN OF PROJECT
[Image]
| -1- |
|
EXHIBIT A-2
PLANS SHOWING OFFICE AREAS AND LAB AREAS
[Floorplan]
| -1- |
|
EXHIBIT B
TENANT WORK LETTER
This Tenant Work Letter ("Tenant Work Letter") sets forth the terms and conditions relating to the construction of improvements for the Premises. All references in this Tenant Work Letter to the "Lease" shall mean the relevant portions of the Lease to which this Tenant Work Letter is attached as Exhibit B.
BASE BUILDING WORK
Landlord has previously commenced construction of the base, shell and core (i) of the Premises and (ii) of the floor(s) of the Building on which the Premises are located (collectively, the "Base Building Work") in substantial accordance with the Base Building Work Matrix (attached to the Lease as Exhibit C), and Tenant shall, except as otherwise provided in the Lease, accept the Base Building Work in its current "As-Is" condition existing as of the date of the Lease and the Lease Commencement Date. Except for the Allowances set forth below, Landlord shall not be obligated to make or pay for any alterations or improvements to the Premises, the Building or the Project; provided, however, that Landlord, at Landlord's sole cost, shall pay for the cost of the initial test-fit plan for the Premises (but not any revisions hereto).
TENANT IMPROVEMENTS
| -1- |
|
CONSTRUCTION DRAWINGS
| -2- |
|
| -3- |
|
CONSTRUCTION OF THE TENANT IMPROVEMENTS
| -4- |
|
SUBSTANTIAL COMPLETION; LEASE COMMENCEMENT DATE
then, notwithstanding anything to the contrary set forth in the Lease and regardless of the actual date of the Substantial Completion of the Premises, the Lease Commencement Date (as set forth in Section 7.2 of the Summary) shall be deemed to be the date the Lease Commencement Date would have occurred if no Tenant Delay or Delays, as set forth above, had occurred.
MISCELLANEOUS
| -5- |
|
| -6- |
|
| -7- |
|
SCHEDULE 1
FINAL SPACE PLAN
[Floorplan]
| -1- |
|
EXHIBIT C
BASE BUILDING WORK MATRIX
| -1- |
|
| -2- |
|
| -3- |
|
| -4- |
|
| -5- |
|
| -6- |
|
| -7- |
|
EXHIBIT D
CONFIRMATION OF LEASE TERMS/AMENDMENT TO LEASE
This CONFIRMATION OF LEASE TERMS/AMENDMENT TO LEASE ("Confirmation/Amendment") is made and entered into effective as of _________________, 20__, by and between ____________________________, a _____________________ ("Landlord") and _______________, a ____________ ("Tenant").
R E C I T A L S:
A. Landlord and Tenant entered into that certain Lease dated as of _____________________ (the "Lease") pursuant to which Landlord leased to Tenant and Tenant leased from Landlord certain "Premises", as described in the Lease, in that certain building located at ________________, ____________, ______.
B. Except as otherwise set forth herein, all capitalized terms used in this Amendment shall have the same meaning as such terms have in the Lease.
C. Landlord and Tenant desire to amend the Lease to confirm the commencement and expiration dates of the term, as hereinafter provided.
NOW, THEREFORE, in consideration of the foregoing Recitals and the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. Confirmation of Dates. The parties hereby confirm that (a) the Premises are Ready for Occupancy, and (b) the term of the Lease commenced as of ____________________ for a term of _________________________ ending on _______________________ (unless sooner terminated as provided in the Lease). Tenant shall commence to pay rent on _______________, 20__.
2. No Further Modification. Except as set forth in this Amendment, all of the terms and provisions of the Lease shall remain unmodified and in full force and effect.
IN WITNESS WHEREOF, this Amendment has been executed as of the day and year first above written.
"Landlord":
________________________, a ______________________
By:
Name:
Its:
"Tenant":
,
a
By:
Name:
Its:
By:
Name:
Its:
| -1- |
|
EXHIBIT E
RULES AND REGULATIONS
Tenant shall faithfully observe and comply with the following Rules and Regulations and the Parking Rules and Regulations. Landlord shall not be responsible to Tenant for the nonperformance of any of said Rules and Regulations and/or the Parking Rules and Regulations by or otherwise with respect to the acts or omissions of any other tenants or occupants of the Building and/or the Project.
| -1- |
|
| -2- |
|
| -3- |
|
| -4- |
|
PARKING RULES AND REGULATIONS
| -5- |
|
(a) areas not striped for parking;
(b) aisles;
(c) where "no parking" signs are posted;
(d) ramps; and
(e) loading zones.
| -6- |
|
COMMON AREA AMENITIES
| -7- |
|
| -8- |
|
EXHIBIT F
SCHEDULE OF TENANT'S HAZARDOUS MATERIALS
Hazardous Material | Quantity | Required Government Approval/Permit |
1. _____________ | ______________ | ______________ |
2.______________ 3.______________ | ______________ ______________ | ______________ ______________ |
4.______________ | ______________ | ______________ |
5.______________ | ______________ | ______________ |
6.______________ | ______________ | ______________ |
7.______________ | ______________ | ______________ |
8.______________ | ______________ | ______________ |
9.______________ | ______________ | ______________ |
10._____________ | _____________ | _____________ |
| -1- |
|
EXHIBIT G
FORM OF ENVIRONMENTAL QUESTIONNAIRE
Property Address:
Instructions: The following questionnaire is to be completed by the Tenant representative with knowledge of the planned operations for the specified building/location. Please print clearly and attach additional sheets as necessary.
1.0 PROCESS INFORMATION
Describe planned use, and include brief description of manufacturing processes employed.
Are hazardous materials used or stored? If so, continue with the next question. If not, go to Section 3.0.
2-1. Are any of the following materials handled on the Property? Yes No
(A material is handled if it is used, generated, processed, produced, packaged, treated, stored, emitted, discharged, or disposed.) If so, complete this section. If this question is not applicable, skip this section and go on to Section 5.0.
Explosives | Fuels | Oils |
Solvents | Oxidizers | Organics/Inorganics |
Acids | Bases | Pesticides |
Gases | PCBs | Radioactive Materials |
Other (please specify) |
|
|
2-2. If any of the groups of materials checked in Section 2-1, please list the specific material(s), use(s), and quantity of each chemical used or stored on the site in the Table below. If convenient, you may substitute a chemical inventory and list the uses of each of the chemicals in each category separately.
Material | Physical State (Solid, Liquid, or Gas) | Usage | Container Size | Number of Containers | Total Quantity |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Material | Physical State (Solid, Liquid, or Gas) | Usage | Container Size | Number of Containers | Total Quantity |
|
|
|
|
|
|
|
|
|
|
|
|
| -1- |
|
2-3. Describe the planned storage area location(s) for these materials. Please include site maps and drawings as appropriate.
Are hazardous wastes generated? Yes No
If yes, continue with the next question. If not, skip this section and go to Section 4.0.
3-1. Are any of the following wastes generated, handled, or disposed of (where applicable) on the Property?
Hazardous wastes Industrial Wastewater Waste oils PCBs
Air emissions Sludges
Regulated Wastes Other (please specify)
3-2. List and quantify the materials identified in Question 3-1 of this section.
Waste Generated | RCRA Listed Waste? | Source | Approximate Monthly Quantity | Waste Characterization |
Disposition |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3-3. Please include name, location, and permit number (e.g. EPA ID No.) for transporter and disposal facility, if applicable). Attach separate pages as necessary.
Transporter/Disposal Facility Name | Facility Location | Transporter (T) or Disposal (D) Facility | Permit Number |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3-4. Are pollution controls or monitoring employed in the process to prevent or minimize the release of wastes into the environment? Yes No
3-5. If so, please describe.
| -2- |
|
4-1. Are underground storage tanks (USTs), aboveground storage tanks (ASTs), or associated pipelines used for the storage of petroleum products, chemicals, or liquid wastes present on site (lease renewals) or required for planned operations (new tenants)? Yes No
If not, continue with section 5.0. If yes, please describe capacity, contents, age, type of the USTs or ASTs, as well any associated leak detection/spill prevention measures.
Please attach additional pages if necessary.
Capacity |
Contents | Year Installed | Type (Steel, Fiberglass, etc) | Associated Leak Detection / Spill Prevention Measures* |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
*Note: The following are examples of leak detection / spill prevention measures:
Integrity testing Inventory reconciliation Leak detection system Overfill Spill Protection
Secondary containment Cathodic protection
4-2. Please provide copies of written tank integrity test results and/or monitoring documentation, if available.
4-3. Is the UST/AST registered and permitted with the appropriate regulatory agencies? Yes No
If so, please attach a copy of the required permits.
4-4. If this Questionnaire is being completed for a lease renewal, and if any of the USTs/ASTs have leaked, please state the substance released, the media(s) impacted (e.g., soil, water, asphalt, etc.), the actions taken, and all remedial responses to the incident.
4-5. If this Questionnaire is being completed for a lease renewal, have USTs/ASTs been removed from the Property? Yes No
If yes, please provide any official closure letters or reports and supporting documentation (e.g., analytical test results, remediation report results, etc.).
4-6. For Lease renewals, are there any above or below ground pipelines on site used to transfer chemicals or wastes?
Yes No
For new tenants, are installations of this type required for the planned operations?
Yes No
If yes to either question, please describe.
| -3- |
|
5.0 ASBESTOS CONTAINING BUILDING MATERIALS
Please be advised that an asbestos survey may have been performed at the Property. If provided, please review the information that identifies the locations of known asbestos containing material or presumed asbestos containing material. All personnel and appropriate subcontractors should be notified of the presence of these materials, and informed not to disturb these materials. Any activity that involves the disturbance or removal of these materials must be done by an appropriately trained individual/contractor.
6.0 REGULATORY
6-1. Does the operation have or require a National Pollutant Discharge Elimination System (NPDES) or equivalent permit? Yes No
If so, please attach a copy of this permit.
6-2. Has a Hazardous Materials Business Plan been developed for the site? Yes No
If so, please attach a copy.
CERTIFICATION
I am familiar with the real property described in this questionnaire. By signing below, I represent and warrant that the answers to the above questions are complete and accurate to the best of my knowledge. I also understand that Landlord will rely on the completeness and accuracy of my answers in assessing any environmental liability risks associated with the property.
Signature:
Name:
Title:
Date:
Telephone:
| -4- |
|
EXHIBIT H
FORM OF LETTER OF CREDIT
RREVOCABLE STANDBY LETTER OF CREDIT NUMBER _____________
ISSUE DATE: ______________
ISSUING BANK:
SILICON VALLEY BANK
3003 TASMAN DRIVE
2ND FLOOR, MAIL SORT HF210
SANTA CLARA, CALIFORNIA 95054
BENEFICIARY:
PACIFIC PLAZA OWNER, L.L.C.
C/O BREAKTHROUGH PROPERTIES
1230 AVE OF THE AMERICAS, 16TH FLOOR
NEW YORK, NEW YORK 10020
ATTENTION: LEGAL
APPLICANT:
__________________________
__________________________
__________________________
__________________________
AMOUNT: US$815,856.00 (____________ AND XX/100 U.S. DOLLARS)
EXPIRATION DATE: SVB WILL PUT A SPECIFIC DATE HERE THAT’S 1 YEAR ISSUANCE HERE
PLACE OF EXPIRATION: ISSUING BANK’S COUNTERS AT ITS ABOVE ADDRESS
DEAR SIR/MADAM:
WE HEREBY ESTABLISH OUR IRREVOCABLE STANDBY LETTER OF CREDIT NO. SVBSF______ IN YOUR FAVOR WHICH IS AVAILABLE FOR PAYMENT BY PRESENTATION TO US OF BENEFICIARY’S DRAFT AT SIGHT IN THE FORM OF EXHIBIT “B” ATTACHED:
PARTIAL DRAWS AND MULTIPLE PRESENTATIONS ARE ALLOWED.
THIS LETTER OF CREDIT SHALL BE AUTOMATICALLY EXTENDED FOR ADDITIONAL PERIODS OF ONE YEAR, WITHOUT AMENDMENT, FROM THE PRESENT OR EACH FUTURE EXPIRATION DATE UNLESS AT LEAST SIXTY (60) DAYS PRIOR TO THE THEN CURRENT
| -1- |
|
EXPIRATION DATE WE SEND TO YOU A NOTICE BY REGISTERED OR CERTIFIED MAIL OR OVERNIGHT COURIER SERVICE AT THE ABOVE ADDRESS THAT THIS LETTER OF CREDIT WILL NOT BE EXTENDED BEYOND THE THEN CURRENT EXPIRATION DATE. IN NO EVENT SHALL THIS LETTER OF CREDIT BE AUTOMATICALLY EXTENDED BEYOND APRIL 30, 2036. IN THE EVENT WE SEND SUCH NOTICE OF NON-EXTENSION, YOU MAY DRAW HEREUNDER BY YOUR PRESENTATION TO US OF YOUR SIGNED AND DATED STATEMENT STATING THAT YOU HAVE RECEIVED A NON-EXTENSION NOTICE FROM SILICON VALLEY BANK IN RESPECT OF LETTER OF CREDIT NO. SVBSF _____________, YOU ARE DRAWING ON SUCH LETTER OF CREDIT FOR US$_____________, AND YOU HAVE NOT RECEIVED A REPLACEMENT LETTER OF CREDIT ACCEPTABLE TO YOU.
ALL DEMANDS FOR PAYMENT SHALL BE MADE BY PRESENTATION OF THE REQUIRED DOCUMENTS ON A BUSINESS DAY AT OUR OFFICE (THE “BANK’S OFFICE”) AT: SILICON VALLEY BANK, 3003 TASMAN DRIVE, MAIL SORT HF 210, SANTA CLARA, CA 95054, ATTENTION: GLOBAL TRADE FINANCE. AS USED IN THIS LETTER OF CREDIT, “BUSINESS DAY” SHALL MEAN ANY DAY OTHER THAN A SATURDAY, SUNDAY OR A DAY ON WHICH BANKING INSTITUTIONS IN THE STATE OF CALIFORNIA ARE AUTHORIZED OR REQUIRED BY LAW TO CLOSE.
facsimile presentations are ALSO permitted. each facsimile transmission shall be MADE AT: (408) 496-2418 OR (408) 969-6510; AND UNDER CONTEMPORANEOUS TELEPHONE ADVICE TO: (408) 450-5001 OR (408) 654-7176, ATTENTION: GLOBAL TRADE FINANCE. ABSENCE OF THE AFORESAID TELEPHONE ADVICE SHALL NOT AFFECT OUR OBLIGATION TO HONOR ANY DRAW REQUEST.
THIS LETTER OF CREDIT IS TRANSFERABLE IN WHOLE BUT NOT IN PART ONE OR MORE TIMES, BUT IN EACH INSTANCE ONLY TO A SINGLE BENEFICIARY AS TRANSFEREE AND for THE THEN AVAILABLE AMOUNT, ASSUMING SUCH TRANSFER TO SUCH TRANSFEREE WOULD BE IN COMPLIANCE WITH THEN APPLICABLE LAW AND REGULATION, INCLUDING BUT NOT LIMITED TO THE REGULATIONS OF THE U.S. DEPARTMENT OF TREASURY AND U.S. DEPARTMENT OF COMMERCE. AT THE TIME OF TRANSFER, THE ORIGINAL LETTER OF CREDIT AND ORIGINALS OR COPIES OF ALL AMENDMENTS, IF ANY, TO THIS LETTER OF CREDIT MUST BE SURRENDERED TO US AT OUR ADDRESS INDICATED IN THIS LETTER OF CREDIT TOGETHER WITH OUR TRANSFER FORM ATTACHED HERETO AS EXHIBIT A DULY EXECUTED. APPLICANT SHALL PAY OUR TRANSFER FEE OF ¼ OF 1% OF THE TRANSFER AMOUNT (MINIMUM US$250.00) UNDER THIS LETTER OF CREDIT. EACH TRANSFER SHALL BE EVIDENCED BY EITHER (1) OUR ENDORSEMENT ON THE REVERSE OF THE LETTER OF CREDIT AND WE SHALL FORWARD THE ORIGINAL OF THE LETTER OF CREDIT SO ENDORSED TO THE TRANSFEREE OR (2) OUR ISSUING A REPLACEMENT LETTER OF CREDIT TO THE TRANSFEREE ON SUBSTANTIALLY THE SAME TERMS AND CONDITIONS AS THE TRANSFERRED LETTER OF CREDIT (IN WHICH EVENT THE TRANSFERRED LETTER OF CREDIT SHALL HAVE NO FURTHER EFFECT).
IF ANY INSTRUCTIONS ACCOMPANYING A DRAWING UNDER THIS LETTER OF CREDIT REQUEST THAT PAYMENT IS TO BE MADE BY TRANSFER TO YOUR ACCOUNT WITH ANOTHER BANK, WE WILL ONLY EFFECT SUCH PAYMENT BY FED WIRE TO A U.S. REGULATED BANK, AND WE AND/OR SUCH OTHER BANK MAY RELY ON AN ACCOUNT NUMBER SPECIFIED IN SUCH INSTRUCTIONS EVEN IF THE NUMBER IDENTIFIES A PERSON OR ENTITY DIFFERENT FROM THE INTENDED PAYEE.
| -2- |
|
THIS LETTER OF CREDIT IS SUBJECT TO THE INTERNATIONAL STANDBY PRACTICES (ISP98), INTERNATIONAL CHAMBER OF COMMERCE, PUBLICATION NO. 590.
___________________________ ___________________________
AUTHORIZED SIGNATURE AUTHORIZED SIGNATURE
IRREVOCABLE STANDBY LETTER OF CREDIT NUMBER __________________
| -3- |
|
EXHIBIT A
FORM OF TRANSFER FORM
DATE: ____________________
TO: SILICON VALLEY BANK
3003 TASMAN DRIVE RE: IRREVOCABLE STANDBY LETTER OF CREDIT
SANTA CLARA, CA 95054 NO. _____________ ISSUED BY
ATTN: GLOBAL TRADE FINANCE SILICON VALLEY BANK, SANTA CLARA
STANDBY LETTERS OF CREDIT L/C AMOUNT: ___________________
GENTLEMEN:
FOR VALUE RECEIVED, THE UNDERSIGNED BENEFICIARY HEREBY IRREVOCABLY TRANSFERS TO:
_________________________________________________________________________________________
(NAME OF TRANSFEREE)
_________________________________________________________________________________________
(ADDRESS)
ALL RIGHTS OF THE UNDERSIGNED BENEFICIARY TO DRAW UNDER THE ABOVE LETTER OF CREDIT UP TO ITS AVAILABLE AMOUNT AS SHOWN ABOVE AS OF THE DATE OF THIS TRANSFER.
BY THIS TRANSFER, ALL RIGHTS OF THE UNDERSIGNED BENEFICIARY IN SUCH LETTER OF CREDIT ARE TRANSFERRED TO THE TRANSFEREE. TRANSFEREE SHALL HAVE THE SOLE RIGHTS AS BENEFICIARY THEREOF, INCLUDING SOLE RIGHTS RELATING TO ANY AMENDMENTS, WHETHER INCREASES OR EXTENSIONS OR OTHER AMENDMENTS, AND WHETHER NOW EXISTING OR HEREAFTER MADE. ALL AMENDMENTS ARE TO BE ADVISED DIRECTLY TO THE TRANSFEREE WITHOUT NECESSITY OF ANY CONSENT OF OR NOTICE TO THE UNDERSIGNED BENEFICIARY.
THE ORIGINAL OF SUCH LETTER OF CREDIT IS RETURNED HEREWITH, AND WE ASK YOU TO EITHER (1) ENDORSE THE TRANSFER ON THE REVERSE THEREOF, AND FORWARD IT DIRECTLY TO THE TRANSFEREE WITH YOUR CUSTOMARY NOTICE OF TRANSFER, OR (2) ISSUE A REPLACEMENT LETTER OF CREDIT TO THE TRANSFEREE ON SUBSTANTIALLY
| -1- |
|
THE SAME TERMS AND CONDITIONS AS THE TRANSFERRED LETTER OF CREDIT (IN WHICH EVENT THE TRANSFERRED LETTER OF CREDIT SHALL HAVE NO FURTHER EFFECT).
SIGNATURE AUTHENTICATED
The name(s), title(s), and signature(s) conform to that/those on file with us for the company and the signature(s) is/are authorized to execute this instrument.
__________________________________________________
(Name of Bank)
_________________________________________________
(Address of Bank)
_________________________________________________
(City, State, ZIP Code)
_________________________________________________
(Authorized Name and Title)
_________________________________________________
(Authorized Signature)
_________________________________________________
(Telephone number)
SINCERELY,
_____________________________
(BENEFICIARY’S NAME)
_____________________________
(SIGNATURE OF BENEFICIARY)
_____________________________
(NAME AND TITLE)
| -2- |
|
EXHIBIT B
FORM OF DRAW REQUEST
DATE:____________ REF. NO._______________
AT SIGHT OF THIS DRAFT
PAY TO THE ORDER OF ________________________________US$_____________
US DOLLARS___________________________________________________________
_______________________________________________________________________
DRAWN UNDER SILICON VALLEY BANK, SANTA CLARA, CALIFORNIA, STANDBY LETTER OF CREDIT NUMBER ____________DATED ______________
TO: SILICON VALLEY BANK
3003 TASMAN DRIVE
SANTA CLARA, CA 95054 _____________________________
(BENEFICIARY’S NAME)
___________________________
Authorized Signature
| -1- |
|
EXHIBIT I
TENANT'S BUILDING-TOP SIGNAGE LOCATION
[Image]
| -1- |
|
EXHIBIT J
FORM OF SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
[Space Above Is For Recorder’s Use Only]
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Jones Day
901 Lakeside Avenue
Cleveland, Ohio 44114
Attn: Mark Biggar
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
THIS AGREEMENT (this “Agreement”), made and entered into as of the [_____] day of [_____________], 2018, by and among PACIFIC PLAZA OWNER, L.L.C., a Delaware limited liability company (“Lessor”), [____________________________________________] (“Lessee”), and RBC REAL ESTATE CAPITAL CORP. (together with its successors, transferees and assigns, “RECC”; RECC and such other co-lenders as may exist from time to time, together with such other co-lenders’ successors and/or assigns, individually and/or collectively, as the context may require, “Lender”).
WITNESSETH:
WHEREAS, By Lease by and between Lessor and Lessee, or their respective predecessors in interest, dated as of [_______________, _______] [list any amendments, etc.] (the “Lease”), Lessee leased from Lessor space in the [____________________________] (the “Premises”), located upon the land situated in the City of San Diego, County of San Diego and State of California, more particularly described on Exhibit A attached hereto and hereby made a part hereof; and
WHEREAS, Lender, as a condition to making a loan to Lessor (the “Loan”) in the original principal amount of up to $[122,100,000.00] pursuant to that certain Loan Agreement dated as of [______], 2021 (the “Loan Agreement”), which is to be secured by, among other things, that certain Deed of Trust and Security Agreement, dated as of [____], 2021, executed by Lessor to and in favor of Lender (the “Security Instrument”), to be recorded against the Premises and other property as security for the Loan and constituting a first lien upon and encumbering the Premises and other property, has required the execution of this Agreement; and
WHEREAS, Lender, Lessor and Lessee have agreed to the following, with respect to their mutual rights and obligations pursuant to and under the Lease and the Security Instrument.
NOW, THEREFORE, for and in consideration of the mutual covenants and agreements herein contained, the making of the Loan by Lender to Lessor and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto do hereby covenant and agree as follows:
1. Lessee’s interest in the Lease, and all rights of Lessee thereunder, including but not limited to any option in favor of Lessee to renew the Lease and/or to purchase the Premises set forth in the Lease, shall be and hereby are declared to be subject and subordinate to the Security Instrument in all respects. The term “Security Instrument”, as used herein, shall include the Security Instrument and any and all amendments, supplements, modifications, renewals, extensions or replacements thereto, thereof or therefor.
| -1- |
|
2. Lender does hereby agree that the rights of Lessee under the Lease shall remain in full force and effect, and its possession of the Premises thereunder shall remain undisturbed by Lender during the term of the Lease, and during any renewal or extension thereof in accordance with its terms; provided Lessee shall have performed and shall continue to perform all of the covenants and conditions of the Lease to be performed by Lessee and shall not be in default thereunder.
3. After the receipt by Lessee of notice from Lender of completion of a foreclosure under the Security Instrument or that Lender has received a conveyance of the Premises in lieu of foreclosure, Lessee will attorn to and recognize Lender, its successors and assigns, or any purchaser at the foreclosure sale, as its substitute lessor under the Lease, and, having thus attorned, Lessee’s possession shall not thereafter be disturbed by Lender during the term of the Lease, and during any renewal or extension thereof in accordance with its terms; providing, and as long as, Lessee shall continue to pay the rental provided under the Lease in the manner provided therein and otherwise to observe and perform the covenants, terms and conditions of the Lease to be observed and performed by Lessee thereunder. The parties shall execute and deliver, upon request, appropriate agreements of attornment and recognition, but this Agreement shall be deemed to be self–operative, and no such separate agreements shall be required to effectuate the foregoing attornment and recognition. Any such attornment and recognition of a substitute lessor shall be upon all of the terms, covenants, conditions and agreements as are set forth in the Lease, except as amended hereby.
4. In the event that Lender or any other person, party or entity becomes the owner of the Premises (“New Owner”) as a result of a foreclosure sale under the Security Instrument or a conveyance in lieu of foreclosure, Lessee shall have no claim against the New Owner resulting from, and the New Owner shall not be liable for, any act, omission and/or breach of the Lease by any prior or subsequent landlord under the Lease, including but not limited to Lessor; and the rights of the New Owner in and to the Premises and in, to and under the Lease shall not be subject to any right of set–off or defense which Lessee may have against any prior landlord under the Lease, including but not limited to Lessor. In addition, the New Owner shall not be (a) bound by any rent or additional rent that Lessee might have paid for more than one (1) month in advance to any prior lessor (including Lessor); (b) bound by any amendment or modification of the Lease made after the date of this Agreement without Lender’s prior written consent; (c) liable for the return of any security deposit to the extent not received by New Owner; or (d) obligated or liable with respect to the construction and completion of any improvements for Lessee’s use and occupancy. Upon any sale or other transfer by a New Owner of its interest in the Premises after acquiring title to the same, said New Owner shall thereupon automatically be released and discharged from all liability thereafter accruing under the Lease.
5. Notwithstanding anything to the contrary herein set forth, in the event a New Owner becomes the owner of the Premises as a result of a foreclosure sale under the Security Instrument or a conveyance in lieu of foreclosure, the New Owner shall not be bound by any provision of the Lease relating to (a) the application of insurance or condemnation proceeds or the restoration of the Premises by the landlord in the event of a casualty loss thereto or a taking thereof, or (b) restrictions on the use of other properties owned by Lessor or the New Owner for purposes which compete with Lessee. The New Owner shall have the option either to use any such insurance or condemnation proceeds to restore the Premises in accordance with the Lease or with the provisions of the Security Instrument or to terminate the Lease and retain all such proceeds as its own.
6. Lessee shall not prepay any of the rents or income due from the Premises for more than one (l) month in advance, except with the written consent of Lender.
7. The Lease may be amended, altered or consensually terminated only with the written consent of Lender.
8. Lessee agrees not to terminate the Lease by reason of any default of Lessor without prior written notice thereof to Lender and the lapse thereafter of such time as under the Lease was granted to Lessor in which to remedy the default, and the lapse of thirty (30) days after the expiration of such time as Lessor was permitted to cure such default; provided, however, that with respect to any default of Lessor under the Lease which cannot be remedied by Lender within such time, if Lender commences to cure such default (including via commencement of a foreclosure action if possession of the Property is required to cure such default) within such time and thereafter diligently proceeds with such efforts, Lender shall have such time as is reasonably necessary to complete curing such default (including such time as is reasonably necessary to complete the foreclosure proceedings, if applicable).
.
| -2- |
|
9. After notice is given to Lessee, pursuant to the Security Instrument, that the rentals under the Lease should be paid to Lender, Lessee shall pay to Lender all rentals and other monies due and to become due to Lessor under the Lease, and Lessor hereby expressly authorizes Lessee to make such payments to Lender and hereby releases and discharges Lessee of and from any liability to Lessor on account of such payments.
10. In the event that Lender shall acquire title to the Premises, Lender shall have no obligation, nor incur any liability, beyond Lender’s then interest, if any, in the Premises, and Lessee shall look exclusively to such interest of Lender, if any, in the Premises for the payment and discharge or any obligations or liability imposed upon Lender hereunder, or under the Lease.
11. Neither Lessor nor Lessee shall permit the Lease to become subordinate to the lien of any deed of trust or security instrument, other than the Security Instrument.
12. Each party hereto shall be entitled to specific performance of the covenants, agreements and rights contained in this Agreement. It is the express intent of all parties hereto that all remedies provided at law or in equity, including the right to specific performance as herein provided, shall be cumulative.
13. This Agreement may not be amended or modified in any manner other than by an agreement in writing signed by all of the parties hereto.
14. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, executors, administrators, personal representatives, successors and assigns, including any purchaser of the Premises at a foreclosure sale.
15. All notices, demands or documents which are required or permitted to be given or served hereunder shall be in writing, and shall be deemed given or served when sent by registered or certified mail, return receipt requested, postage prepaid, addressed as follows:
If to Lender: | RBC Real Estate Capital Corp. 200 Crescent Court Suite 1525 Dallas, TX 75201 Attention: Richard Farris and Ross Ruschhaupt Facsimile No.: (214) 775-7710 |
If to Lessor: | Pacific Plaza Owner, L.L.C. Email:
|
with a copy to: | [BOR TO CONFIRM] |
If to Lessee: | [_______________________] [_______________________] [_______________________]
|
with a copy to: | [_______________________] [_______________________] [_______________________]
|
| -3- |
|
Each party hereto may change its above–stated address from time to time by serving written notice of the change upon the other parties hereto as above provided at least ten (10) days prior to the effective date of said change.
16. This Agreement and the Lease shall be governed by and construed and interpreted in accordance with the laws of the State of California.
17. Lessee has executed this Agreement for the purpose of inducing Lender to make the Loan and realizes that Lender will rely upon this Agreement in making the Loan.
| -4- |
|
IN WITNESS WHEREOF, this Agreement has been duly executed as of the day and year first above written.
| “LENDER”
RBC REAL ESTATE CAPITAL CORP., a Delaware corporation
By: Name: Its:
|
CALIFORNIA NOTARY ACKNOWLEDGEMENT
A Notary Public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA )
)
COUNTY OF ___________________ )
On ______________________, before me, __________________________, a Notary Public, personally appeared ______________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature ________________________________
Signature of Notary Public
| -5- |
|
| “LESSOR” PACIFIC PLAZA OWNER, L.L.C., By:___________________________ Name: ________________________
|
CALIFORNIA NOTARY ACKNOWLEDGEMENT
A Notary Public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA )
)
COUNTY OF ___________________ )
On ______________________, before me, __________________________, a Notary Public, personally appeared ______________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature ________________________________
Signature of Notary Public
| -6- |
|
| “LESSEE” [_____________________] By:___________________________ Name: ________________________
|
CALIFORNIA NOTARY ACKNOWLEDGEMENT
A Notary Public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA )
)
COUNTY OF ___________________ )
On ______________________, before me, __________________________, a Notary Public, personally appeared ______________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature ________________________________
Signature of Notary Public
| -7- |
|
EXHIBIT A
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF SAN DIEGO, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
ALL THAT CERTAIN REAL PROPERTY SITUATED IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:
PARCEL A: APN 307-451-59-00
PARCEL 1 OF PARCEL MAP NO. 18581 IN THE CITY OF SAN DIEGO, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF FILED IN THE OFFICE OF THE COUNTY RECORDER OF THE COUNTY OF SAN DIEGO NOVEMBER 16, 2000.
EXCEPTING THEREFROM SAID LAND SUCH MINERALS, MINERAL RIGHTS AND RELATED RIGHTS AS RESERVED AND DESCRIBED IN DEED RECORDED JUNE 10, 1914 IN BOOK 650, PAGE 197 OF DEEDS AND JULY 10, 1973 AS FILE NO. 1973-190126 OF OFFICIAL RECORDS.
PARCEL A1:
THOSE CERTAIN EASEMENTS AS GRANTED IN A DOCUMENT ENTITLED “DECLARATION OF EASEMENTS AND DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS RECORDED SEPTEMBER 10, 2001 AS FILE NO. 2001-0648099 OF OFFICIAL RECORDS.
EXCEPTING THEREFROM THOSE PORTIONS LYING WITHIN PARCEL “A” HERE AND ABOVE DESCRIBED.
PARCEL B APN 307-451-60-00 AND APN 307-452-39-00
PARCELS 2 AND 3 OF PARCEL MAP NO. 18581 IN THE CITY OF SAN DIEGO, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF FILED IN THE OFFICE OF THE COUNTY RECORDER OF THE COUNTY OF SAN DIEGO NOVEMBER 16, 2000 AS FILE NO. 2000-0624882 OF OFFICIAL RECORDS.
EXCEPTING THEREFROM SAID LAND SUCH MINERALS, MINERAL RIGHTS AND RELATED RIGHTS AS RESERVED AND DESCRIBED IN DEED RECORDED JUNE 10, 1914 IN BOOK 650, PAGE 197 OF DEEDS AND JULY 10, 1973 AS FILE NO. 1973-190126 OF OFFICIAL RECORDS.
PARCEL B1:
AN ACCESS EASEMENT OVER ALL THAT PORTION OF PARCELS 1 AND 2 OF PARCEL MAP NO. 18581, IN THE CITY OF SAN DIEGO, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO PARCEL MAP FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT THE MOST WESTERLY CORNER OF SAID PARCEL 2, SAID WESTERLY CORNER BEING ON THE ARC OF A CURVE, CONCAVE EASTERLY, HAVING A RADIUS OF 1241.00 FEET, A RADIAL TO SAID WESTERLY CORNER BEARS SOUTH 70 45’13” WEST; THENCE SOUTHERLY ALONG THE WESTERLY LINE OF SAID PARCEL 2, AND SAID CURVE, 26.55 FEET THROUGH A CENTRAL ANGLE OF 01 13’32” TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE NORTHERLY, HAVING A RADIUS OF 30.00 FEET, A RADIAL TO SAID POINT BEARS SOUTH 09 05’36” WEST; THENCE EASTERLY ALONG SAID CURVE 14.74 FEET THROUGH A CENTRAL ANGLE OF 28 09’28”; THENCE NORTH 70 56’08” EAST 181.25 FEET; THENCE NORTH 65 12’53” EAST 36.75 FEET TO THE BEGINNING OF A CURVE, CONCAVE WESTERLY, HAVING A RADIUS OF 30.00 FEET; THENCE EASTERLY, SOUTHEASTERLY, SOUTHERLY, SOUTHWESTERLY, AND WESTERLY ALONG SAID CURVE 99.11 FEET THROUGH A
| -8- |
|
CENTRAL ANGLE OF 189 17’23”; THENCE SOUTH 74 30’16” WEST 38.90 FEET; THENCE SOUTH 70 54’25” WEST 173.95 FEET TO THE BEGINNING OF CURVE, CONCAVE SOUTHERLY, HAVING A RADIUS OF 30.00 FEET; THENCE ALONG SAID CURVE 18.29 FEET THROUGH A CENTRAL ANGLE OF 34 56’27” TO THE WESTERLY LINE OF SAID PARCEL 2, SAID WESTERLY LINE BEING ON THE ARC OF A CURVE, CONCAVE NORTHEASTERLY, HAVING A RADIUS OF 1,241.00 FEET, A RADIAL TO SAID POINT BEARS SOUTH 66 37’34” WEST; THENCE NORTHERLY ALONG SAID WESTERLY LINE OF SAID PARCEL 2, AND SAID CURVE, 62.84 FEET THROUGH A CENTRAL ANGLE OF 02 54’05” TO THE TRUE POINT OF BEGINNING.
EXCEPTING THEREFROM THAT PORTION LYING WITHIN PARCEL A HEREINABOVE DESCRIBED.
PARCEL B2:
THOSE CERTAIN EASEMENTS AS GRANTED IN A DOCUMENT ENTITLED “DECLARATION OF EASEMENTS AND DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS RECORDED SEPTEMBER 10, 2001 AS FILE NO. 2001-0648099 OF OFFICIAL RECORDS.
EXCEPTING THEREFROM THOSE PORTIONS LYING WITHIN PARCEL “A” HERE AND ABOVE DESCRIBED.
| -9- |
|
RIDER
EXTENSION OPTION RIDER
This Extension Option Rider ("Extension Rider") is attached to and made a part of the Lease by and between Landlord and Tenant. The agreements set forth in this Extension Rider shall have the same force and effect as if set forth in the Lease. To the extent the terms of this Extension Rider are inconsistent with the terms of the Lease, the terms of this Extension Rider shall control.
| -1- |
|
| -2- |
|