EXHIBIT 10(C)
RIDER TO SUBLEASE AGREEMENT
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Rider to SUBLEASE AGREEMENT (the "Lease") dated February 19, 1999 by
and between CAL-CHIP ELECTRONICS, INC., a Pennsylvania corporation ("Landlord")
and OXIS INSTRUMENTS, INC., a Pennsylvania corporation ("Tenant").
In the event of a conflict between the terms of this Rider and the
Lease, this Rider shall govern. The Lease is amended as follows:
1. Paragraph 2 is deleted and the following is substituted: Landlord
leases to Tenant and Tenant rents from Landlord the premises ("the
demised premises") being the interior only of the space designated
on the plan attached hereto as Exhibit "A" containing
approximately fourteen thousand seven hundred fifty-six (14,756)
rentable square feet in the building (hereinafter called the
"Entire Premises") located at 00 Xxxxx Xxxxxxx Xxxxx, Xxxxxxx,
Xxxxxxxxxxxx. As an appurtenance to the demised premises, Landlord
grants to Tenant the nonexclusive license to use, in common with
others entitled thereto, all portions of Entire Premises
designated by Landlord from time to time as common facilities.
2. The following is added at the end of Paragraph 4:
The first rental payment shall be pro-rated for the partial month
of occupancy.
3. The following is added at the end of Paragraph 5:
If the time for giving possession is extended beyond March 19,
1999, Tenant shall have the right to terminate this Lease by
notice in writing to Landlord and Landlord shall pay to Tenant all
sums of money paid by Tenant to Landlord pursuant to this Lease.
4. Paragraphs 6(C)(D) and (E) are deleted and the following is
substituted:
Tenant shall pay to Landlord within fifteen (15) days following
receipt of any xxxx in connection therewith, Tenant's
proportionate share of costs of operation of the Entire Premises.
For the purposes of this Lease, the costs of operation of the
Entire Premises shall include, without limitation, all reasonable
and necessary expenses, costs and charges incurred in the
operation and maintenance of the Entire Premises and all other
reasonable and necessary costs, expenses or charges which Landlord
shall pay or become obligated to pay because of or in connection
with the ownership and operation of the Entire Premises, including
the following :
(1) all supplies and materials used in the normal and ordinary
operation and maintenance of the Entire Premises;
(2) all utilities (excluding tenant electric and billable
overtime) used in the operation of the Entire Premises
excluding only utilities separately billed to individual
tenants;
(3) the cost of energy used in heating, ventilating and air
conditioning the Entire Premises and the cost of
maintenance, repair and operation of all equipment and
systems installed or owned by Landlord to provide such
services;
(4) the cost of all maintenance and service agreements;
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(5) the cost of all insurance applicable to Entire Premises,
including without limitation, all risk coverage, rent
insurance, workmen's compensation, etc.; and
(6) cost of repairs, replacements and general maintenance and
building services except for capital improvements.
Notwithstanding the foregoing the following shall not be included in the
computation of the costs of operation of the Entire Premises:
(1) amounts charged for services rendered solely for the
benefit of Landlord or any other tenant;
(2) any charge for Landlord's overhead or service charge of any
nature by Landlord;
(3) legal fees incurred by Landlord; and
(4) broker's fees or leasing commissions in connection with the
leasing of portions of the Entire Premises.
5. Paragraph 8(H) is deleted.
6. The following is added at the end of Paragraph 9(B):
Notwithstanding anything contained herein to the contrary,
Landlord's consent hereafter shall not be required in the event
Tenant assigns or sublease this Lease to an assignee or subtenant
that is as creditworthy as Tenant, as determined solely by
Landlord in its reasonable judgement and notwithstanding the
provisions of this Lease to the contrary, in the event of any
assignment or sublease by Tenant, Landlord agrees to extend the
term of this Lease such that the term under such assignment or
sublease shall be no less than one (1) year.
7. Notwithstanding the provisions of paragraphs 9(C) through (G) to
the contrary, Tenant may make all interior, non-structural alterations and
improvements necessary to permit Tenant to operate its business within the
demised premises, and Tenant may erect such lawful signs upon the exterior of
the demised premises as Tenant deems reasonably necessary for the operation of
its business, subject to compliance by Tenant with all applicable ordinances and
regulations of Northampton Township. If Tenant desires to make structural
additions, alterations or improvements to the demised premises, Tenant shall
first deliver detailed plans therefor to Landlord and shall obtain Landlord's
prior written consent as otherwise provided for under the terms of this Lease.
Notwithstanding the provisions contained in this paragraph to the contrary, in
the event Northampton Township provides that only one sign shall be permitted on
the building front of the Entire Premises, Landlord and Tenant agree to equally
divide the area permitted for such sign.
8. The following is added to the end of Paragraph 9(D):
Notwithstanding any provision of this Lease to be contrary,
Landlord and Tenant acknowledge and agree that all trade fixtures,
equipment, machinery and appliances shall be the property of
Tenant and shall remain the property of Tenant upon termination or
expiration of this Lease, and any security interests, lien or
other rights in favor of Landlord therein shall be subject to
prior prime security interests granted in favor of lenders, or
equipment vendors of Tenant. Landlord agrees to execute and
deliver a Landlord's waiver with respect to such fixtures,
equipment, appliances and other items of Tenant's property, in
form and content reasonably acceptable to Landlord.
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9. Paragraph 9(H) is deleted.
10. Paragraph 10(A) is deleted and the following substituted: Landlord
shall have the right at all reasonable times itself or by its duly
authorized agents to go upon and inspect the demised premises and
every part thereof, and at all reasonable times at its option to
make repairs, alterations and additions to the demised premises or
the building of which the demised premises is a part. In
connection with such entry, Landlord shall respect the security of
Tenant's operations and shall not interrupt, disturb or interfere
with Tenant's operations, provided, however, that rent shall xxxxx
hereunder during such period Tenant is denied use of the demised
premises by the making of any such repairs, alterations or
additions unless they have been made necessary by the fault or
negligence of Tenant, its agents or employees.
11. Paragraph 10(D) is deleted.
12. Paragraph 11(A) and (B) are deleted and the following is
substituted: 11(A) Landlord shall defend, indemnify and
save harmless Tenant and its agents and employees
against all costs, damages or claims, whether for
personal injury or property damage, (i) occurring on the
Entire Premises during the term hereof if caused by any
act or omission by Landlord or its agents, contractors
or employees; or (ii) occurring in the common areas of
the Entire Premises (except if caused by act or omission
of Tenant, its agents, contractors or employees in such
common areas). Landlord shall, at its own expense,
defend all actions brought against Tenant, its agents or
employees for which Landlord is responsible for
indemnification hereunder, and if Landlord fails to do
so, Tenant (at its option, but without being obligated
to do so) may, at the cost and expense of Landlord and
upon notice to Landlord, defend such actions, and
Landlord shall pay and discharge any and all judgments
that arise therefrom. 11(B) Tenant shall defend,
indemnify and save harmless Landlord and its agents and
employees against all costs, damages or claims, whether
for personal injury or property damage occurring on the
demised premises during the term hereof (except if
caused by any act or omissions of Landlord, its agents,
contractors, invitees or employees). Tenant shall, at
its own expense, defend all actions brought against
Landlord, its agents or employees for which Tenant is
responsible for indemnification hereunder, and if Tenant
fails to do so, Landlord (at its option, but without
being obligated to do so) may, at the cost and expense
of Tenant and upon notice to Tenant, defend such
actions, and Tenant shall pay and discharge any and all
judgments that arise therefrom.
13. Paragraphs 12(A), (B), and (C) are deleted and the following
substituted:
(A) Landlord shall keep all buildings and improvements
erected on the demised premises insured against loss or
damage by fire and
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other perils from time to time, hereafter commonly
insured against and now referred to as extended coverage
perils (including without limitation, vandalism and
malicious mischief, if such coverage is then generally
available) in the minimum amount required by any
mortgagee of the demised premises or in the minimum
amount necessary to avoid the effect of co-insurance,
contribution or similar provisions of the applicable
policies. All proceeds of such insurance shall be
payable to Landlord or any mortgagee of the demised
premises as their interests may appear.
(B) If the demised premises are at any time during the term
of this Lease partially or totally destroyed or damaged
by fire, flood or other casualty, Tenant shall give
prompt notice thereof to Landlord, which shall at
Landlord's sole expense, repair and restore the demised
premises to their original condition. Landlord will
within ten (10) days after the occurrence of such damage
commence and thereafter with all due diligence to
proceed with the making of such repairs. In no event
shall Landlord be obligated to expend more than the
proceeds of insurance maintained by Landlord on the
demised premises in restoration thereof, and in no event
shall Tenant charge Landlord for any amount in excess of
such proceeds. If such damage is so extensive that such
repairs cannot, with due diligence, be completed within
one hundred twenty (120) days, then either party may
terminate this Lease on written notice delivered to the
other within ten (10) days after the occurrence of such
damage. Tenant shall be entitled to an abatement of rent
for the period during which the demised premises are
rendered untenantable or incapable of use during the
period of such condition.
14. The following is added at the end of the last sentence of
Paragraph 12(D): by reason of insured casualty; provided, however,
that if any such repair or interruption prevents Tenant's use of
the demised premises for its intended purpose, then all rent
hereunder shall xxxxx during the period of such prevention and if
Tenant is prevented from using the demised premises for its
intended purpose for more than thirty (30) days, Tenant shall have
the right to terminate this Lease.
15. Paragraph 13(B) is deleted and the following is substituted:
Landlord and Tenant represent and warrant each to the other that
each has not dealt with any real estate agent or broker in
connection with this transaction and agree to indemnify and save
each other harmless from and against all loss, cost and expense
incurred by reason of any claim of any real estate agent or broker
claiming by, through or under the indemnifying party, regardless
of whether such claim is meritorious.
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16. Paragraph 13(D) is deleted.
17. Paragraph 14(C) is deleted.
18. Paragraphs 15, 16, and 20 are deleted.
19. The following is added as Paragraph 15:
Anything contained in this Lease to the contrary notwithstanding,
any thing or act which would otherwise be a default hereunder by
Tenant or would entitle Landlord to the remedies set forth in this
Lease or at law, shall not be a default and Landlord shall not be
entitled to such remedies unless, if it is one that can be cured
by the payment of money, Tenant fails to cure the default within
ten (10) days after notice thereof given by Landlord to Tenant,
or, if the default cannot be cured by the payment of money,
Landlord has given Tenant notice of such default and Tenant fails
to cure the default within thirty (30) days thereafter or, if it
cannot with due diligence be cured within thirty (30) days, Tenant
fails to commence curing such default within such thirty (30) day
period and to proceed with due diligence and in good faith to
complete the curing thereof.
20. Paragraph 22 is deleted and the following substituted: If the
entire demised premises is taken by or pursuant to governmental
authority or by the exercise of the right of eminent domain, (a)
Tenant shall have no obligations under this Lease subsequent to
such taking and Tenant shall surrender possession of the demised
premises to Landlord as of the date of such taking, or (b) at
Tenant's option if permitted by applicable law, this Lease shall
continue until Tenant by reason of an official order or direction
of the condemning authority vacates the demised premises. In the
event of any taking, whether total or partial and whether or not
this Lease continues, Tenant shall be entitled to claim against
the condemnor any special damages. If this Lease continues after a
partial taking, there shall be an abatement of rent proportionate
to any portion of the space taken and rendered untenantable or
incapable of use during the period of such condition and, after
the remainder of the demised premises are repaired and restored,
proportionate to the portion of space taken. Landlord, if
necessary, shall promptly after such partial taking, repair and
restore the remainder of the demised premises to a finished
condition satisfactory for the use made by Tenant hereunder.
21. That portion of Paragraph 23 beginning with the word "and"
following the semicolon in the sixth line thereof is deleted and the following
substituted:
The subordination of this Lease as provided in this Paragraph 23
is subject to the reservation that so long as Tenant has not
defaulted in the performance of this Lease beyond the applicable
grace period following notice of default, Tenant shall not be
evicted from the demised premises nor shall Tenant's leasehold
estate and other rights under this Lease be terminated or
disturbed.
22. Paragraph 24 is deleted.
23. Paragraph 25 is deleted and the following substituted:
All notices, demands, requests, consents and any other
communication hereunder from either party to the other shall be
sufficient only if conveyed
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in writing by United States registered or certified mail, return
receipt requested, or by nationally recognized over night delivery
service, and, in either case, postage prepaid, addressed to the
recipient at the address set forth in the heading of this Lease or
to such other address or addresses as the party to receive the
notice, demand, request, consent or communication may hereafter
designate by due notice to the other.
24. The following is added as Paragraph 30:
As to any loss or damage that may occur upon the property of a
party hereto, such party hereby releases the other, to the extent
of such damaged party's insurance indemnities, from any and all
liability for such loss or damage even if such loss or damage is
caused by the fault or negligence of such other party, or the
agents or employees of such other party; provided, however, that
this release shall be effective only with respect to loss or
damage occurring during such time as the applicable policies of
insurance shall contain a clause to the effect that this release
shall not affect said policies or the right of the insured to
recover thereunder. If any policy does not contain such a clause,
the insured party shall, at the request of the other party to this
lease, have such a clause added to said policy if an endorsement
so providing is obtainable. If an additional premium is charged
for such endorsement, the party requesting it shall pay to the
insured party the amount of such additional premium promptly upon
being billed therefor.
25. The following is added as Paragraph 31:
Wherever the consent or approval of Landlord is required
hereunder, such consent or approval shall not be unreasonably
withheld. Wherever, any matter is to be determined "in the
Landlord's opinion" such matter shall be determined reasonably by
Landlord.
26. The following is added as Paragraph 32:
Landlord shall maintain, repair and replace the exterior walls,
structure and roof of demised premises.
27. The following is added as Paragraph 33:
(A) Landlord grants to Tenant two (2) option(s) to renew and
extend this Lease for two (2) separate, successive renewal
periods of one (1) year each. Such options may be exercised
only by written notice delivered to Landlord a minimum of
sixty (60) days prior to the expiration of the original
term hereof or renewal period then in effect. The exercise
of such options shall be effective only if Tenant (i) has
exercised all prior options, and (ii) is not in default
under this Lease on the date of exercise of such option and
on the date of expiration of the original term hereof or of
the renewal period then in effect. If such options are
exercised, this Lease shall continue during such renewal
period upon all the terms, covenants and conditions herein
set forth except as set forth in Paragraph 30(B) below.
(B) The minimum annual rent set forth in Paragraph 4 of this
Lease shall be subject to adjustment (but not below the
amount set forth
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in Paragraph 4) for any net decline of the purchasing power
of the dollar as reflected in the Cost of Living Index as
hereafter defined. For the purposes hereof the Cost of
Living Index shall be the "Consumer Price Index for All
Urban Consumers, (CPI-U) (1982-84 = 000), Xxxxxxxxxxxx
Xxxxxx," published by the United States Department of
Labor, Bureau of Labor Statistics. Such adjustment shall be
based on the Cost of Living Index as published for the
month of February, 2000 ("Base Index"), and shall be made
by multiplying the minimum rent set forth in Paragraph 4 by
a fraction, the numerator of which shall be the Cost of
Living Index for the month of February of each respective
calendar year of the term of this Lease or any renewal
thereof (commencing February, 2000) and the denominator of
which shall be the Base Index. If the Cost of Living Index
or successor or substitute index is not available, the
parties shall use any reliable governmental or other
impartial index or publication reasonably designated by
Landlord which reasonably reflects the change in cost of
living between the periods otherwise above set forth for
determination of the cost of living adjustment.
IN WITNESS WHEREOF, and with the intention to be legally bound hereby, the
parties have executed this Rider this 19/th/ day of February, 1999.
LANDLORD:
CAL-CHIP ELECTRONICS, INC.
By: /s/ Xxxxxx Xxxxxxxx
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Xxxxxx Xxxxxxxx
President
TENANT:
OXIS INSTRUMENTS, INC.
By: /s/ Xxx X. Xxxxxxx
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Xxx X. Xxxxxxx
Secretary
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