EXHIBIT 10.62
FIRST AMENDMENT TO LEASE AND
ASSIGNMENT AND ASSUMPTION OF LEASE
THIS FIRST AMENDMENT TO LEASE AND ASSIGNMENT AND ASSUMPTION OF LEASE
(this "Agreement") is made and entered into this 7th day of December 2001, by
and among XXXXXXXX DEVELOPMENT COMPANY, a California corporation ("Xxxxxxxx"),
IPRINT TECHNOLOGIES, INC. ("iPrint") and GERON CORPORATION ("Geron)
(collectively, the "Parties").
RECITALS
X. Xxxxxxxx, as the landlord, and iPrint (previously known as
xXxxxx.xxx, inc.), as the tenant, are parties to that certain lease dated March
7, 2000 (the "Lease"), for premises located at 000 Xxxxxxxxxxxx Xxxxx, Xxxxx
Xxxx, Xxxxxxxxxx (the "Premises).
B. iPrint desires to assign and delegate all of its rights and
obligations under the Lease to Geron, and Geron desires to accept such
assignment and to assume iPrint's obligations under the Lease.
C. In connection with such assignment and assumption, Xxxxxxxx and Xxxxx
desire to amend the Lease in certain respects, on the terms and conditions
hereinafter set forth.
D. This Agreement is intended to be a contemporaneous exchange for new
value.
NOW THEREFORE, in consideration of the mutual promises contained herein,
the Parties agree as hereinafter set forth.
AGREEMENT
1. Effective Date. This Agreement shall become effective on December 7,
2001 (the "Effective Date").
2. Assignment, Assumption and Consent. Subject to the terms and
conditions herein, from and after the Effective Date, iPrint hereby assigns and
transfers to Geron all of iPrint's right, title, and interest in, to and under
the Lease. Subject to the terms and conditions herein, Geron hereby assumes all
of the obligations of iPrint under the Lease to be performed by the Tenant under
the Lease and agrees to be bound by all of the terms, covenants, conditions, and
provisions of the Lease, as amended pursuant to this Agreement. Xxxxxxxx hereby
consents to the foregoing assignment and assumption of Lease and agrees that
from and after the Effective Date, except as set forth in Sections 3, 4 and 14
below, iPrint shall be released and discharged from all liability under the
Lease. Notwithstanding the foregoing or anything else to the contrary in this
Agreement, the Parties acknowledge and agree that Geron shall pay the entire
amount of December Base Rent, without proration, as set forth in Section 8 of
this Agreement, and iPrint shall have no obligations or responsibilities
therefor.
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3. Lease Discharge Payment. As consideration for Xxxxxxxx'x execution
and delivery of this Agreement, iPrint shall make the following payments in the
aggregate amount of Four Hundred Eighty Thousand Dollars ($480,000) (the "Lease
Discharge Payment") to be delivered in two (2) installments, the first of which
in the amount of Two Hundred Eighty Thousand Dollars ($280,000) shall be paid to
Xxxxxxxx on or before December 7, 2001, and the second of which in the amount of
Two Hundred Thousand Dollars ($200,000) shall be due and payable to Xxxxxxxx on
January 2, 2002. In addition, iPrint shall deliver to Xxxxxxxx, at no cost to
Xxxxxxxx, sixty thousand (60,000) shares of the common stock of iPrint (the
"Stock") as soon as reasonably possible, but in no event later than
January 11, 2002. Geron shall have no obligation whatsoever with respect to the
Lease Discharge Payment or with respect to any other obligation of iPrint under
this Agreement.
4. Security for Consideration. The Parties acknowledge that iPrint
previously provided Xxxxxxxx with a standby letter of credit in the amount of
Two Hundred Fifty Thousand Dollars ($250,000) issued by Imperial Bank (the
"Letter of Credit"), which was delivered to Xxxxxxxx by iPrint in accordance
with Section 2.4 of the Lease. The Parties acknowledge and agree that after the
Effective Date the Letter of Credit shall secure only the obligations of iPrint
set forth in Section 3 above and not the obligations of Geron as the successor
Tenant under the Lease.
5. Default by iPrint. In the event that iPrint fails to deliver (a) any
installment of the Lease Discharge Payment or (b) the entire amount of Stock as
set forth in Section 3 above, and if such failure continues for three (3)
business days after written notice is given by Xxxxxxxx to iPrint specifying
such failure, then such failure shall be deemed a default ("Default"); provided,
however, that a Default shall be deemed a default only by iPrint (and not by
Geron), and Xxxxxxxx shall have no right to terminate the Lease or otherwise
take any action against Geron with respect to such Default by iPrint. In the
event that the Default results from the failure of iPrint to deliver any portion
of the Lease Discharge Payment (a "Payment Default"), Xxxxxxxx shall thereafter
be permitted to draw on the Letter of Credit in an amount equal to the
installment of the Lease Discharge Payment that has not been timely paid. In the
event that the Default results from the failure of iPrint to deliver the Stock
(a "Stock Delivery Default"), Xxxxxxxx shall thereafter be permitted to draw on
the Letter of Credit in the amount of Fifty Thousand Dollars ($50,000) (the
"Deemed Value of the Stock"), which amount iPrint and Xxxxxxxx acknowledge and
agree to be a reasonable estimate of damages related to such Default as actual
damages cannot be ascertained with certainty. If Xxxxxxxx draws on (and receives
payment under) the Letter of Credit as a result of a Payment Default or a Stock
Delivery Default, and if the amount received under the Letter of Credit is
sufficient to cure the Default, then payment of such amount shall constitute
Xxxxxxxx'x sole and exclusive remedy for such defaults; provided, however, if a
petition seeking relief under the United States Bankruptcy Code is filed by or
against iPrint within ninety (90) days after the later of the date by which
iPrint delivers the Stock or makes the final Lease Discharge Payment, then
Xxxxxxxx shall have the right to draw on the Letter of Credit in the full amount
thereof. In such event, Xxxxxxxx shall be required to return to iPrint (or the
bankruptcy estate of iPrint, as the case may be) any proceeds of the Letter of
Credit to the extent such proceeds exceed the amounts, if any, of the Lease
Discharge Payment or the Deemed Value of the Stock that have been set aside
under applicable bankruptcy law. In no event shall Xxxxxxxx be entitled to draw
on the Letter of Credit as the result of any default by
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Geron under the Lease, it being agreed that the sole basis for Xxxxxxxx to draw
upon the Letter of Credit shall be a Default as set forth herein.
Notwithstanding the foregoing, if Xxxxxxxx attempts to draw on the Letter of
Credit in an amount necessary to cure the Default, and if the Letter of Credit
is dishonored by the issuing bank or if the amount available to Xxxxxxxx by
drawing on the Letter of Credit is insufficient to cure the Default, then iPrint
shall pay Xxxxxxxx on the first day of each month during the remaining term of
the Lease an amount (the "Shortfall Base Rent Payments") equal to (a) the
monthly Base Rent, as set forth in the Original Lease, MINUS (b) the monthly
Base Rent required to be paid by Geron, as set forth in this Agreement, in each
case for the period starting on the date of such default and continuing through
the term of the Lease; provided, however, that iPrint shall receive a credit
against the Shortfall Base Rent Payment for any Lease Discharge Payment that has
been made prior to such default. Upon payment to Xxxxxxxx of the entire Lease
Discharge Payment and delivery of the entire amount of Stock as set forth above,
Xxxxxxxx shall have no further rights to draws under the Letter of Credit for
any purposes whatsoever, and the original Letter of Credit shall be returned to
iPrint, within one hundred ten (110) days after the last payment of any portion
of the Lease Discharge Payment, upon iPrint's request.
6. Release of Claims. Xxxxxxxx and iPrint acknowledge Paragraphs 1 and 2
of the Letter of Credit, setting forth documents to be delivered to the issuing
bank prior to a draw on the Letter of Credit, provide as follows:
"1. THE ORIGINAL OF THIS STANDBY LETTER OF CREDIT AND AMENDMENT (S) IF
ANY.
2. BENEFICIARY'S STATEMENT DATED AND SIGNED BY AN AUTHORIZED OFFICER
CERTIFYING THAT (1) XXXXXX.XXX, INC IS IN DEFAULT UNDER ONE OR MORE TERMS OF
THAT CERTAIN LEASE AGREEMENT DATED MARCH 7, 2000 THAT EXISTS BETWEEN XXXXXX.XXX,
INC. AND BENEFICIARY, (2) BENEFICIARY HAS PROVIDED TO XXXXXX.XXX, INC.ALL
NOTICES REQUIRED UNDER THE LEASE, AND (3) ANY APPLICABLE CURE PERIOD HAS LAPSED
WITHOUT REMEDY, AND (4) THE BENEFICIARY IS AUTHORIZED TO DRAW DOWN ON THE LETTER
OF CREDIT."
Xxxxxxxx and iPrint further acknowledge that although Paragraphs 1 and 2
refer to a default or event of default under the Lease, the Parties have agreed
under Section 4 of this Agreement that, from and after the Effective Date, the
Letter of Credit shall be held solely as security for iPrint's obligation to
deliver the Lease Discharge Payment and the Stock. Notwithstanding the terms of
the Letter of Credit to the contrary, in the event of a Default under this
Agreement, iPrint authorizes Xxxxxxxx to submit all documents to the issuing
bank in accordance with Paragraphs 1 and 2 of the Letter of Credit (and to make
all statements referred to in Paragraph 2 of the Letter of Credit) as though a
default had occurred under the Lease. Provided Xxxxxxxx makes a request for
payment under the Letter of Credit in accordance with this Agreement, iPrint
shall have no claims or actions against Xxxxxxxx and shall hold Xxxxxxxx
harmless for the submission of documents to the issuing bank in accordance with
Sections 4, 5 and 6 of this Agreement.
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7. Term. The Parties hereby confirm that the expiration date of the
Lease is April 30, 2005.
8. Base Rent. Notwithstanding Section 2.1.A. or any other provision in
the Lease to the contrary, the monthly Base Rent shall be as set forth below:
TOTAL BASE RENT
PERIOD (PER MONTH)
------------------ ---------------
December 1, 2001 - $ 16,570.80
April 30, 2002
May 1, 2002 - $ 22,324.80
July 30, 2002
August 1, 2002 - $ 28,080.00
April 30, 2003
May 1, 2003 - $ 29,250.00
April 30, 2004
May 1, 2004 - $ 30,420.00
April 30, 2005
9. Increase of Base Rent. Notwithstanding Section 2.1.B or any other
provision in the Lease to the contrary, if at any time during the remaining term
of the Lease the Tenant (as that term is defined in the Lease) occupies and/or
uses the mezzanine for any purpose, then the monthly Base Rent shall be
increased by the sum of Fifty One-Hundredths Dollars ($.50) multiplied by the by
the square footage of the mezzanine occupied and/or used.
10. Other Amendments. Effective upon execution of this Agreement, the
Lease is amended in the following additional respects:
10.1. Article 1 of the Lease is amended to add the following new
Section 1.3:
Section 1.3. Provided that Tenant is not at the time
that Landlord receives Tenant's written notice to exercise the
option described in this Section 1.3, and has not been, in
default under any of the terms and conditions hereof, which
default has not been cured within the applicable cure periods
set forth in Article 13 below, Tenant shall have the option to
extend the demised term of this Lease for one (1) additional
period of twenty-one (21) months (to January 31, 2007) (the
"First Extension Term") upon the terms and conditions set forth
herein:
A. Tenant shall exercise such option by written notice
to Landlord given at least two hundred seventy (270) days prior
to the expiration of the original demised term; provided that,
if during the last two (2) years of the initial demised term,
Landlord should receive a bona fide offer to lease the demised
premises at the end of the initial demised term from another
tenant, which offer Landlord is prepared to accept, then Tenant
shall have ten (10) business days from receipt of notice from
Landlord that Landlord has received such an offer (together with
a copy of such bona fide offer) to exercise its option upon the
terms and conditions
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of this Section 1.3. Should Tenant fail to exercise its option
to extend the lease within ten (10) business days, then said
option shall be null and void.
B. Base rent for the First Extension Term shall be
$40,950.00 per month for the period from May 1, 2005 through
April 30, 2006, and $42,383.00 per month for the period from May
1, 2006 through January 31, 2007.
C. There shall be no further options to extend.
D. All other terms and conditions shall be as set forth
in the Lease, and all references to the demised term shall mean
the term as extended by the First Extension Term.
E. The option to extend may only be exercised by Geron
Corporation provided that Geron may exercise the option on its
behalf if Geron has subleased any or all of the demised premises
and Landlord has consented to such sublease. The option cannot
be transferred nor can it be exercised by Geron if Geron has
assigned its rights under this Lease to a third party.
10.2. Section 7.2 of the Lease is amended to add the following
language at the end:
Notwithstanding the foregoing, Tenant may, subject to Section
12.2 below, construct and/or install outside of the demised
premises a hazardous materials storage shed, an equipment pad,
HVAC equipment, and other equipment or facilities similar to
those constructed and/or installed by Tenant at its premises at
000 Xxxxxxxxxxxx Xxxxx and 000 Xxxxxxxxxxxx Xxxxx.
10.3. Section 8.1 of the Lease is amended to read as follows:
Section 8.1. Tenant shall use the demised premises
solely for general office and biomedical research, development
and manufacturing, and for no other purposes without Landlord's
prior written consent.
10.4. Section 10.1 of the Lease is amended by adding the
following language before the second-to-last sentence of the
section:
Landlord may carry any deductible under said insurance
Landlord elects; provided that Landlord's obligation to
repair will include the amount of said deductible and
Tenant agrees to reimburse Landlord for any such
deductible used for repair up to the amount of
$10,000.00.
10.5. Section 10.4 of the Lease is deleted in its entirety.
10.6. Section 11.1 of the Lease is amended to add the following
language at the end:
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Landlord shall also, at Landlord's expense, repair
damage to the building and demised premises caused by
the negligence or willful misconduct of Landlord, its
employees, agents, invitees, or contractors to the
extent not covered by insurance (exclusive of any
deductibles referenced in Section 10.1) carried, or
required to be carried, by Landlord or Tenant hereunder.
10.7. Section 12.2 of the Lease is amended to add the following
language:
Landlord acknowledges that Tenant may elect, subject to
this Section 12.2, to make leasehold improvements to
build biotechnology research and development
laboratories and facilities ("Laboratory Improvements"),
and/or to make underground data and telecommunication
connections between the demised premises and Tenant's
premises at 000 Xxxxxxxxxxxx Xxxxx, and/or to make
external improvements including addition of hazardous
materials storage shed, equipment pad, emergency
generator, and HVAC systems, or similar items.
10.8. Section 18.1 of the Lease is amended to modify the first
sentence of the section to read as follows:
Landlord grants to Tenant during the demised term the
exclusive (subject to Landlord's rights and obligations
hereunder) right to use the parking facilities and other
areas provided and designated as "Parking and
Accommodation Areas" on Exhibit "B" hereto for the
accommodation and parking of such automobiles of the
Tenant, its officers, agents, employees and its
customers while working or visiting Tenant; provided
that Landlord shall have no obligation to police said
Parking Areas or enforce Tenant's right to exclusive use
thereof.
10.9. Section 19.1 of the Lease is amended to read as follows:
Section 19.1. Landlord and its designee shall have the
right, upon 24 hours notice and during reasonable business hours
(except for emergencies when no notice or time restriction shall
apply), to enter the demised premises (except restricted areas
as established under Federal or state law) (i) to inspect the
same, (ii) for any purpose connected with Landlord's rights or
obligations under this Lease and, (iii) for all other lawful
purposes. All non-escorted visitors and those who will be
entering restricted areas must be trained in Tenant's then
current laboratory safety procedures.
11. Acknowledgement of Terms of Lease; No Defaults. Xxxxxxxx and iPrint
each acknowledge that the Lease is in full force and effect and is valid,
binding and enforceable against the other party. Xxxxxxxx and iPrint represent
and acknowledge that no defaults or breaches on the part of Xxxxxxxx or iPrint
are continuing under the Lease and that the Lease has not been amended, modified
or assigned except as set forth in this Agreement.
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12. "As-is" Condition. iPrint shall deliver the Premises and
improvements included in the Premises "As-is" on the Effective Date. iPrint
makes no representation or warranty as to the use or occupancy which may be made
of the Premises. Xxxxxxxx and Geron will document the condition of the Premises
and improvements as of the Effective Date, and such condition will be the
baseline for any later restoration or repair obligation imposed on Geron under
the Lease.
13. Geron Security Deposit. Upon execution of this Agreement, Geron
shall deposit with Xxxxxxxx an additional cash deposit in a sum equal to Thirty
Thousand Four Hundred Twenty Dollars ($30,420) (the "Geron Security Deposit").
The Geron Security Deposit shall be governed by the terms and conditions of
Section 19.9 of the Lease related to the Security Deposit.
14. Indemnification. This Agreement shall not release iPrint from
liability or obligation under its indemnity contained in Section 9.1 of the
Lease resulting from any acts, omissions or events happening prior to the
Effective Date, or thereafter to the extent iPrint has agreed to indemnify
Xxxxxxxx under the terms of such Section 9.1, and iPrint specifically confirms
and agrees that its indemnities under the Lease will remain fully in force with
respect to any such acts, omissions or events. Geron does not assume, and shall
have no obligations with respect to, iPrint's indemnities under Section 9.1 of
the Lease, and Xxxxxxxx shall have no remedies against Geron, under the Lease or
otherwise, for any failure by iPrint to perform under such indemnities.
15. Binding Effect. This Agreement amends the Lease and, except as
specifically set forth herein, in the event of any inconsistency between this
Agreement and the Lease, the terms of this Agreement shall be controlling.
Unless otherwise defined, all terms used in this Agreement shall have the same
meanings as given them in the Lease.
16. Captions. The title of the various articles of this Agreement are
used for convenience of reference only and are not intended to and shall not in
any way enlarge or diminish the rights or obligations of the Parties or affect
the meaning or construction of this document.
17. Counterparts. This Agreement may be executed in counterparts, and
transmitted by facsimile by and to each of the Parties, and each such
counterpart shall be deemed an original, and all of them together shall
constitute a single instrument.
18. Entire Agreement. This Agreement constitutes the entire agreement
between the Parties with respect to the subject matter hereof and supersedes all
prior negotiations and agreements, whether written or oral. This Agreement may
not be altered or amended except by an instrument in writing executed by all of
the Parties hereto. Each party executing this Agreement on behalf of any entity
warrants thereby that he has the full right, power and authority to bind said
entity. The Lease, as amended by this Agreement, will continue in full force and
effect in accordance with its terms.
19. Brokerage Fees. iPrint shall pay brokerage commission in accordance
with that separate Commission Schedule Agreement by and between iPrint and
Xxxxxxxx & Associates.
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Except for the commissions payable by iPrint to Xxxxxxxx & Associates, each
Party acknowledges that it has retained no other broker or finder entitled to a
commission with respect to the transactions contemplated by this Agreement.
20. Effectiveness of Agreement. The provisions of this Agreement shall
have no effect and shall create no rights or obligations unless and until this
Agreement is executed by all of the Parties.
IN WITNESS WHEREOF, the Parties hereto have executed this First
Amendment to Lease; Assignment and Assumption of Lease; and Consent by Xxxxxxxx
as of the day and year first written above.
"XXXXXXXX"
XXXXXXXX DEVELOPMENT COMPANY
By:
Title:
"IPRINT"
IPRINT TECHNOLOGIES, INC.
By:
Title:
"GERON"
GERON CORPORATION
By:
Title:
