EXHIBIT 10.11
STANDARD INDUSTRIAL/COMMERCIAL SINGLE TENANT LEASE
1. BASIC PROVISIONS ("BASIC PROVISIONS")
1.1 PARTIES: This Lease ("Lease"), dated for reference purposes only
July 31, 1998, is made by and between Xxxxx X. Xxxxxx and Xxxxxx Xxxxxx Family
Trust ("Lessor") and IntraBiotics Pharmaceuticals, Inc, a Delaware Corporation
("Lessee"), (collectively the "Parties," or individually a "Party").
1.2 PREMISES: That certain real property, including all improvements
therein or to be provided by Lessor under the terms of this Lease, as such
improvements to be provided by Lessor are set forth in Paragraph 7.1(a) hereof
and Section 8 of Exhibit B hereto, and commonly known as 0000 Xxxxx Xxxxx
Xxxxxx, Xxxxxxxx View located in the County of Santa Xxxxx, State of California,
and generally described as an approximately 18,000 square foot R&D/Office
Building ("Premises"). (See also Paragraph 2.)
1.3 TERM: Five (5) years and ten and one-half (10.5) months ("Original
Term") commencing September 1, 1998 ("Commencement Date") and ending July 14,
2004 ("Expiration Date"). (See also Paragraph 3.)
1.4 EARLY POSSESSION: N/A ("Early Possession Date"). (See also
Paragraphs 3.2 and 3.3).
1.5 BASE RENT: $35,100.00 per month ("Base Rent"), payable on the first
(lst) day of each month commencing September 1, 1998. (See also Section 1 of the
Addendum hereto).
/X/ If this box is checked, there are provisions in this Lease for the Base
Rent to be adjusted.
1.6 BASE RENT PAID UPON EXECUTION: $35,100.00 as Base Rent for the
period September 1, 1998 - August 31, 1999.
1.7 SECURITY DEPOSIT: $41,040.00 in cash plus an additional $175,500
which shall be either in cash or an irrevocable letter of credit in the form of
Exhibit E attached hereto, at Lessee's sole option (collectively, "Security
Deposit"). (See also Paragraph 5.)
1.8 AGREED USE: General office and R&D use and light manufacturing
subject to the limitations set forth in Paragraph No. 6. (See also Paragraph 6.)
1.9 INSURING PARTY: Lessor is the "Insuring Party" unless otherwise
stated herein. (See also Paragraph 8.)
1.10 REAL ESTATE BROKER: (See also Paragraph 15.)
(a) REPRESENTATION: The following real estate brokers
(collectively, the "Brokers") and brokerage relationships exist in this
transaction (check applicable boxes):
/X/ Colliers Xxxxxxx International, Inc. represents Lessor exclusively
("LESSOR'S BROKER");
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/X/ BT Commercial and Vertex Real Estate Group represent Lessee exclusively
("LESSEE'S BROKER"); or
/ / _______________________________ represents both Lessor and Lessee ("DUAL
AGENCY").
(b) PAYMENT TO BROKERS: Upon execution and delivery of this Lease
by both Parties, Lessor shall pay to the Broker the fee agreed to in their
separate written agreement.
1.11 ADDENDA AND EXHIBITS: Attached hereto is an Addendum or Addenda
consisting of Sections 1 through 8 Exhibits A (Site Plan); B (Interior
Improvements); C (Lessor's Remedies),-D (Final Plans and Specifications) and E
(Letter of Credit), all of which constitute a part of this Lease.
2. PREMISES.
2.1 LETTING. Lessor hereby leases to Lessee, and Lessee hereby leases
from Lessor, the Premises, for the term, at the rental, and upon all of the
terms, covenants and conditions set forth in this Lease. Unless otherwise
provided herein, any statement of size set forth in this Lease, or that may have
been used in calculating rental, is an approximation which the Parties agree is
reasonable and the rental based thereon is not subject to revision whether or
not the actual size is more or less.
2.2 CONDITION. Lessor shall deliver the Premises to Lessee broom clean
and free of debris on the Commencement Date or the Early Possession Date,
whichever first occurs ("Start Date"), and, so long as the required service
contracts described in Paragraph 7.1(b) below are obtained by Lessee within
thirty (30) days following the Start Date, represents to Lessee, to the best of
its knowledge, that the existing electrical, plumbing, fire sprinkler, lighting,
heating, ventilating and air conditioning systems ("HVAC"), loading doors,
windows and doors, if any, and all other such elements in the Premises, other
than those constructed by Lessee, shall be in good operating condition on said
date and that the structural elements of the roof and the roof membrane, bearing
walls and foundation of any buildings on the Premises (the "Building") shall be
free of material defects and in good condition and repair. If a non-compliance
with said representation exists as of the Start Date, Lessor shall, as Lessor's
sole obligation with respect to such matter, except as otherwise provided in
this Lease, promptly after receipt of written notice from Lessee setting forth
with specificity the nature and extent of such non-compliance, rectify same at
Lessor's expense. If, after Start Date, Lessee does not give Lessor written
notice of any non-compliance with this warranty within: a. one year as to the
surface of the roof and the structural portions of the roof, foundations and
bearing walls, b. six (6) months as to the HVAC systems, c. sixty (60) days as
to the remaining systems and other elements of the Building, correction of such
non-compliance shall be the obligation of Lessee at Lessee's sole cost and
expense.
2.3 COMPLIANCE. Lessor represents that, to the best of its knowledge,
the improvements on the Premises comply with all applicable laws, covenants or
restrictions of record, building codes, regulations and ordinances ("Applicable
Requirements") in effect on the Start Date. If and to the extent the
improvements on the Premises are not in such compliance and
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Lessee so notifies Lessor prior to Lessee's taking occupancy of the Premises,
Lessor shall render them compliant at Lessor's sole cost and expense upon
completion of the initial tenant improvements. Said representation does not
apply to the use to which Lessee will put the Premises or to any Alterations or
Utility Installations (as defined in Paragraph 7.3(a)) made or to be made by
Lessee. If the Applicable Requirements are hereafter changed (as opposed to
being in existence at the Start Date, which is addressed in Paragraph 6.2(e)
below) so as to require during the teem of this Lease the construction of an
addition to or an alteration of the Building, the remediation of any Hazardous
Substance, or the reinforcement or other physical modification of the Building
("Capital Expenditure"), Lessor and Lessee shall allocate the costs of such work
as follows:
(a) Subject to Paragraph 2.3(c) below, if such Capital
Expenditures are required as a result of the specific and unique use of the
Premises by Lessee as compared with uses by tenants in general, Lessee shall be
fully responsible for the cost thereof, provided, however that if such Capital
Expenditure is required during the last year of this Lease and the cost thereof
exceeds six (6) months' Base Rent, Lessee may instead terminate this Lease. If
Lessee elects termination, Lessee shall immediately cease the use of the
Premises which requires such Capital Expenditure and deliver to Lessor written
notice specifying a termination date at least ninety (90) days thereafter. Such
termination date shall, however, in no event be earlier than the last day that
Lessee could legally utilize the Premises without commencing such Capital
Expenditure.
(b) If such Capital Expenditure is not the result of the specific
and unique use of the Premises by Lessee (such as, governmentally mandated
seismic modifications), then Lessor and Lessee shall allocate the obligation to
pay `for such costs pursuant to the provisions of Paragraph 7.1(c); provided,
however, that if such Capital Expenditure is required during the last year of
this Lease or if Lessor reasonably determines that it is not economically
feasible to pay its share thereof, Lessor shall have the option to terminate
this Lease upon one hundred twenty (120) days prior written notice to Lessee
unless Lessee notifies Lessor, in writing, within ten (10) days after receipt of
Lessor's termination notice that Lessee will pay for such Capital Expenditure.
If Lessor does not elect to terminate, and fails to tender its share of any such
Capital Expenditure, Lessee may advance such funds and deduct same, with
interest, from Rent until Lessor's share of such costs have been fully paid. If
Lessee is unable to finance Lessor's share, or if the balance of the Rent due
and payable for the remainder of this Lease is not sufficient to fully reimburse
Lessee on an offset basis, Lessee shall have the right to terminate this Lease
upon thirty (30) days written notice to Lessor.
(c) Notwithstanding the above, the provisions concerning Capital
Expenditures are intended to apply only to non-voluntary, unexpected, and new
Applicable Requirements. If the Capital Expenditures are instead triggered by
Lessee as a result of an actual or proposed change in use, change in intensity
of use, or modification to the Premises then, and in that event, Lessee shall be
fully responsible for the cost thereof, and Lessee shall not have any right to
terminate this Lease.
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2.4 ACKNOWLEDGEMENTS. Lessee acknowledges that:
(a) it has been advised by Lessor and/or Brokers to satisfy itself
with respect to the condition of the Premises (including but not limited to the
electrical, HVAC and the fire sprinkler systems, security, environmental
aspects, and compliance with Applicable Requirements), and their suitability for
Lessee's intended use, (b) Lessee has made such investigation as it deems
necessary with reference to such matters and assumes all responsibility therefor
as the same relate to its occupancy of the Premises, and (c) neither Lessor,
Lessor's agents, nor any Broker has made any oral or written representations or
warranties with respect to said matters other than as set forth in this Lease.
In addition, Lessor acknowledges that: (a) Broker has made no representations,
promises or warranties concerning Lessee's ability to honor the Lease or
suitability to occupy the Premises, and (b) it is Lessor's sole responsibility
to investigate the financial capability and/or suitability of all proposed
tenants.
2.5 LESSEE AS PRIOR OWNER/OCCUPANT. Intentionally deleted.
3. TERM.
3.1 TERM. The Commencement Date, Expiration Date and Original Term of
this Lease are as specified in Paragraph 1.3.
3.2 EARLY POSSESSION. If Lessee totally or partially occupies the
Premises prior to the Commencement Date, the obligation to pay Base Rent shall
be abated for the period of such early possession. All other terms of this Lease
(including but not limited to the obligation to pay Real Property Taxes and
insurance premiums and to maintain the Premises) shall, however, be in effect
during such period. Any such early possession shall not affect the Expiration
Date.
3.3 DELAY IN POSSESSION. Lessor agrees to use its best commercially
reasonable efforts to deliver possession of the Premises to Lessee by the
Commencement Date. As used herein, the phrase "deliver possession" shall mean
and refer to the delivery of the building shell of the Premises as it exists as
of the date of execution hereof. If, despite said efforts, Lessor is unable to
deliver possession as agreed, Lessor shall not be subject to any liability
therefor, nor shall such failure affect the validity of this Lease. Lessee shall
not, however, be obligated to pay Rent or perform its other obligations until it
receives possession of the Premises. If possession is not delivered within
thirty (30) days after the Commencement Date, Lessee may, at its option, by
notice in writing within ten (10) days after the end of such thirty (30) day
period, cancel this Lease, in which event the Parties shall be discharged from
all further obligations hereunder, and Lessor shall refund Lessee's deposits
hereunder. If such written notice is not received by Lessor within said ten (10)
day period. Lessee's right to cancel shall terminate. Except as otherwise
provided, if possession is not tendered to Lessee by the Start Date and Lessee
does not terminate this Lease, as aforesaid, any period of rent abatement that
Lessee would otherwise have enjoyed shall run from the date of delivery of
possession and continue for a period equal to what Lessee would otherwise have
enjoyed under the terms hereof, but minus any days of delay caused by the acts
or omissions of Lessee. If possession of the Premises is not delivered within
four (4) months after the Commencement Date, this Lease shall terminate unless
other agreements are reached between Lessor and Lessee, in writing.
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3.4 LESSEE COMPLIANCE. Lessor shall not be required to tender possession
of the Premises to Lessee until Lessee complies with its obligation to provide
evidence of insurance (Paragraph 8.5). Pending delivery of such evidence, Lessee
shall be required to perform all of its obligations under this Lessee, from and
after the Start Date, including the payment of Rent, notwithstanding Lessor's
election to withhold possession pending receipt of such evidence of insurance.
4. RENT.
4.1 RENT DEFINED. All monetary obligations of Lessee payable to Lessor
under the terms of this Lease (except for the Security Deposit) are deemed to be
rent ("Rent").
4.2 PAYMENT. Lessee shall cause payment of Rent to be received by Lessor
in lawful money of the United States, without offset or deduction (except as
specifically permitted in this Lease), on or before the day on which it is due.
Rent for any period during the term hereof which is for less than one (1) full
calendar month shall be prorated based upon the actual number of days of said
month. Payment of Rent shall be made to Lessor at its address stated herein or
to such other persons or place as Lessor may from time to time designate in
writing. Acceptance of a payment which is less than the amount then due shall
not be a waiver of Lessor's rights to the balance of such Rent, regardless of
Lessor's endorsement of any check so stating.
5. SECURITY DEPOSIT. Lessee shall deposit with Lessor upon execution hereof
the Security Deposit as security for Lessee's faithful performance of its
obligations under this Lease. If lessee fails to pay Rent, or otherwise Defaults
under this Lease, Lessor may use, apply or retain that portion of said Security
Deposit necessary for the payment of any amount due Lessor or to reimburse or
compensate Lessor for any liability, expense, loss or damage which Lessor may
suffer or incur by reason thereof. If Lessor uses or applies all or any portion
of said Security Deposit, Lessee shall within ten (10) days after written
request therefor deposit monies with Lessor sufficient to restore said Security
Deposit to the full amount required by this Lease. Should the Agreed Use be
amended to accommodate a material change in the business of Lessee or to
accommodate a sublessee or assignee, Lessor shall have the right to increase the
Security Deposit to the extent necessary, in Lessor's reasonable judgment, to
account for any increased wear and tear that the Premises may suffer as a result
thereof. If a change in control of Lessee occurs during this Lease and following
such change the financial condition of Lessee is, in Lessor's reasonable
judgment, significantly reduced, Lessee shall deposit such additional monies
with Lessor as shall be sufficient to cause the Security Deposit to be at a
commercially reasonable level based on said change in financial condition.
Lessor shall not be required to keep the Security Deposit separate from its
general accounts. Within fourteen (14) days after the expiration or termination
of this Lease, if Lessor elects to apply the Security Deposit only to unpaid
Rent, and otherwise within thirty (30) days after the Premises have been vacated
pursuant to Paragraph 7.4(c) below, Lessor shall return that portion of the
Security Deposit not used or applied by Lessor. No part of the Security Deposit
shall be considered to be held in trust, to bear interest or to be prepayment
for any monies to be paid by Lessee under this Lease.
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6. USE.
6.1 USE. Lessee shall use and occupy the Premises only for the Agreed
Use, or any other legal use which is reasonably comparable thereto, and for no
other purpose. Lessee shall not use or permit the use of the Premises in a
manner that is unlawful, creates damage, waste, or a nuisance, or that disturbs
owners and/or occupants of, or causes damage to neighboring properties. Lessor
shall not unreasonably withhold or delay its consent to any written request for
a modification of the Agreed Use, so long as the same will not impair the
structural integrity of the improvements on the Premises or the mechanical or
electrical systems therein, is not significantly more burdensome to the
Premises. If Lessor elects to withhold consent, Lessor shall within five (5)
business days after such request give written notification of same, which notice
shall include an explanation of Lessor's objections to the change in use.
6.2 HAZARDOUS SUBSTANCES. Intentionally omitted.
7. MAINTENANCE; REPAIRS, UTILITY INSTALLATIONS; TRADE FIXTURES AND
ALTERATIONS.
7.1 LESSEE'S OBLIGATIONS.
(a) IN GENERAL. Subject to the provisions of Paragraph 2.2
(Condition), 2.3 (Compliance), 6.3 (Lessor's Compliance with Applicable
Requirements), 7.2 (Lessor's Obligations), 9 (Damage or Destruction), and 14
(Condemnation), Lessee shall, at Lessee's sole expense, keep the Premises,
Utility Installations, and Alterations in good order, condition and repair
excluding ordinary wear and tear (whether or not the portion of the Premises
requiring repairs, or the means of repairing the same, are reasonably or readily
accessible to Lessee, and whether or not the need for such repairs occurs as a
result of Lessee's use, any prior use, the elements or the age of such portion
of the Premises), including, but not limited to, all equipment or facilities,
such as plumbing, heating, ventilating, air-conditioning, electrical, lighting
facilities, boilers, pressure vessels, fire protection system, fixtures, walls
(interior and exterior), foundations, ceilings, roofs, floors, windows, doors,
plate glass, skylights, landscaping, driveways, parking lots, fences, retaining
walls, signs, sidewalks and parkways located in, on, or adjacent to the
Premises. Lessee, in keeping the Premises in good order, condition and repair,
shall exercise and perform good maintenance practices, specifically including
the procurement and maintenance of the service contracts required by Paragraph
7.1(b) below. Subject to the provisions of Paragraph 7.1(c), Lessee's
obligations shall include restorations, replacements or renewals when necessary
to keep the Premises and all improvements thereon or a part thereof in good
order, condition and state of repair. Lessee shall, during the term of this
Lease, keep the exterior appearance of the Building in a good condition
consistent with the exterior appearance of other similar facilities of
comparable age and size in the vicinity, including, when necessary the exterior
repairing of the Building. Notwithstanding the foregoing, Lessor shall, prior to
the Start Date, install a new roofing structure and membrane, and Lessor shall
be responsible for prompt and diligent enforcement of any warranty in connection
therewith, which warranty will cover the period stipulated by the roofing vendor
but in no event less than one (1) year. Notwithstanding any contrary provision
of this Lease, Lessee shall not be responsible for the performance or cost of
repair (i) to the extent Lessor has a right of reimbursement from others
(including insurers as provided for in Lessor's property insurance policies),
(ii) of damage caused by the gross negligence or intentional misconduct of
Lessor or Lessor's agents,
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employees, officers, directors or stockholders, or (iii) of the structural
portions of the Premises, which shall be limited to the foundation, floor slabs,
exterior walls (excluding glass, for which Lessee shall be responsible), and
roof structure (unless caused by acts or omissions of Lessee or its agents,
employees or contractors).
(b) SERVICE CONTRACTS. Lessee shall, at Lessee's sole expense,
procure and maintain contracts, with copies to Lessor, in customary form and
substance for, and with contractors specializing and experienced in the
maintenance of the following equipment and improvements, if any, if and when
installed on the Premises: (i) HVAC equipment, (ii) fire extinguishing systems,
including fire alarm and/or smoke detection, (iii) landscaping and irrigation
systems, (iv) roof covering and drains, and (v) driveways and parking lots.
(c) REPLACEMENT. Subject to Lessee's indemnification of Lessor as
set forth in Paragraph 8.7 below, and without relieving Lessee of liability
resulting from Lessee's failure to exercise and perform good maintenance
practices, if any improvements or equipment, the cost of which to make or
replace would constitute a capital cost under generally accepted accounting
principles (a "Capital Item") cannot be repaired other than at a cost which is
in excess of fifty percent (50%) of the cost of replacing such Capital Items,
then such Capital Items shall be replaced by Lessor, and the cost thereof shall
be prorated between the Parties and Lessee shall only be obligated to pay, each
month during the remainder of the term of this Lease, on the date on which Base
Rent is due, an amount equal to the product of multiplying the cost of such
replacement by a fraction, the numerator of which is one, and the denominator of
which is the number of months of the useful life of such replacement as such
useful life is specified pursuant to Federal Income tax regulations or
guidelines for depreciation thereof (including, interest on the unamortized
balance as is then. commercially reasonable in the judgment of Lessor's
accountants), with Lessee reserving the right to prepay its obligation at any
time.
7.2 LESSOR'S OBLIGATIONS. Subject to the provisions of Paragraphs 2.2
(Condition), 2.3 (Compliance), 7.1(a) (Lessor's Obligations in General), 9
(Damage or Destruction) and 14 (Condemnation), it is intended by the Parties
hereto that Lessor have no obligation, in any manner whatsoever, to repair and
maintain the Premises, or the equipment therein, all of which obligations are
intended to be that of the Lessee except as expressly set forth herein. It is
the intention of the Parties that the terms of this Lease govern the respective
obligations of the Parties as to maintenance and repair of the Premises, and
they expressly waive the benefit of any statute now or hereafter in effect to
the extent it is inconsistent with the terms of this lease.
7.3 UTILITY INSTALLATIONS; TRADE FIXTURES; ALTERATIONS.
(a) DEFINITIONS; CONSENT REQUIRED. The term "Utility
Installations" refers to all floor and window coverings, air lines, power
panels, electrical distribution, fire protection systems, communication cabling,
lighting fixtures, HVAC equipment, plumbing, and fencing in or on the Premises.
The term "Trade Fixtures" shall mean Lessee's machinery and equipment that can
be removed, without doing material damage to the Premises. The term
"Alterations" shall mean any modification of the improvements, other than
Utility Installations or Trade Fixtures, whether by addition or deletion.
"Lessee Owned Alterations and/or Utility Installations" are defined as
Alterations and/or Utility Installations made by Lessee that are not yet owned
by Lessor pursuant to Paragraph 7.4(a). Lessee shall not make any Alterations or
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Utility Installations in, on or about the Premises without Lessor's prior
written consent. Lessee may, however, make non-structural Utility Installations
to the interior of the Premises (excluding the roof) without such consent but
upon notice to Lessor, as long as they are not visible from the outside, do not
involve puncturing, relocating or removing the roof or any existing structural
walls, and the cumulative cost thereof during this Lease as extended does not
exceed Twenty-Six Thousand Dollars ($26,000) for any one project.
(b) CONSENT. Any Alterations or Utility Installations that Lessee
shall desire to make and which require the consent of the Lessor shall be
presented to Lessor in written form with detailed plans. Consent shall be deemed
conditioned upon Lessee's: (i) acquiring all applicable governmental permits,
(ii) furnishing Lessor with copies of both the permits and the plans and
specifications prior to commencement of the work and (iii) compliance with all
conditions of said permits and other Applicable Requirements in a prompt and
expeditious manner. Any Alterations or Utility Installations shall be performed
in a workmanlike manner with good and sufficient materials. Lessee shall
promptly upon completion furnish Lessor with as-built plans and specifications
if such have been prepared in connection with the Alteration or Utility
Installation. For work which costs an amount equal to more than $50,000.00,
Lessor may condition its consent upon Lessee providing a lien and completion
bond in an amount equal to one and one-half times the estimated cost of such
Alteration or Utility Installation. Lessee shall pay, when due, all claims for
labor or materials furnished or alleged to have been furnished to or for Lessee
at or for use in, on or about the Premises, which claims are or may be secured
by any mechanics' or materialmens' liens against the Premises or any interest
therein. If a mechanics' or materialmen's lien is filed against the Premises,
Lessee shall be required immediately to remove the lien from title. Failure so
to do shall be a material default under this Lease.
(c) INDEMNIFICATION. Lessee shall pay, when due, all claims for
labor or materials furnished or alleged to have been furnished to or for Lessee
at or for use on the Premises, which claims are or may be secured by any
mechanic's or materialmen's lien against the Premises or any interest therein.
Lessee shall give Lessor not less than ten (10) days' notice prior to the
commencement of any material work in, on or about the Premises, and Lessor shall
have the right to post notices of non-responsibility. As used herein, the
reference to ,,material work" shall mean and refer to work that costs more than
Ten Thousand Dollars ($10,000.00). If Lessee shall contest the validity of any
such lien, claim or demand, then Lessee shall, at its sole expense defend and
protect itself, Lessor and the Premises against the same and shall pay and
satisfy any such adverse judgment that may be rendered thereon before the
enforcement thereof. If Lessor shall require, Lessee shall furnish a surety bond
in an amount equal to one and one-half times the amount of such contested lien,
claim or demand, indemnifying Lessor against liability for the same. If Lessor
elects to participate in any such action, Lessee shall pay Lessor's attorneys'
fees and costs.
7.4 OWNERSHIP; REMOVAL; SURRENDER; AND RESTORATION.
(a) Lessee shall not, without Lessor's prior written consent, make
any roof penetrations. Lessor shall have the right and sole discretion to
approve the location and form of any roof penetrations. Lessor may require at
the time Lessor consents to the installation of an Alteration of Utility
Installation (if consent is required) or upon expiration or earlier termination
of this Lease (if consent is not required) that Lessee remove any or all of said
Alterations or
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Utility Installations (but not the Interior Improvements constructed in
accordance with Exhibit B) at the expiration of the Term, and restore the
Premises to their prior condition. Should Lessee make any Alterations or Utility
Installations without the prior written approval of Lessor, Lessor may required
that Lessee immediately remove all or any of the same and restore the Premises
to their prior condition. The immediately preceding two sentences shall survive
the expiration or earlier termination of this Lease.
(b) Intentionally Omitted.
(c) Intentionally Omitted.
(d) Unless Lessor requires their removal, as set forth in
Paragraph 7.3(a), all Alterations and Utility Installations (whether or not such
Utility Installations constitute trade fixtures of Lessee) that may be made or
placed on the Premises shall become the property of Lessor upon termination of
this Lease and remain upon and be surrendered with the Premises at the
expiration of the Term. Notwithstanding the provisions of this Paragraph 7.4(d),
Lessee's machinery and equipment, other than that which is affixed to the
Premises so that it cannot be removed without material damage to the Premises,
shall remain the property of Lessee and may be removed by Lessee subject to the
provisions of Paragraph 7.4(e).
(e) SURRENDER/RESTORATION. Lessee shall surrender the Premises by
the Expiration Date or any earlier termination date, with all of the
improvements, parts and surfaces thereof broom clean and free of debris, and in
good operating order, condition and state of repair, ordinary wear and tear
excepted. "Ordinary wear and tear" shall not include any damage or deterioration
that would have been prevented by good maintenance practice. Lessee shall repair
any damage occasioned by the installation, maintenance or removal of Trade
Fixtures, Lessee Owned Alterations and/or Utility Installations, furnishings,
and equipment as well as the removal of any storage tank installed by or for
Lessee, and the removal, replacement, or remediation of any soil, material or
groundwater contaminated by Lessee. Trade Fixtures shall remain the property of
Lessee and shall be removed by Lessee. The failure by Lessee to timely vacate
the Premises pursuant to this Paragraph 7.4(c) without the express written
consent of Lessor shall constitute a holdover under the provisions of Paragraph
26 below.
8. INSURANCE; INDEMNITY.
8.1 PAYMENT FOR INSURANCE. Lessee shall pay for all insurance required
under Paragraphs 8.2(a) and 8.2(b) except to the extent of the cost attributable
to liability insurance carried by Lessor under Paragraph 8.2(b) in excess of
$2,000,000 per occurrence. Premiums for policy periods commencing prior to or
extending beyond the Lease term shall be prorated to correspond to the Lease
term. Payment shall be made by Lessee to Lessor within ten (10) days following
receipt of an invoice.
8.2 LIABILITY INSURANCE.
(a) CARRIED BY LESSEE. Lessee shall obtain and keep in force a
Commercial General Liability Policy of Insurance protecting Lessee and Lessor
against claims for bodily injury, personal injury and property damage based upon
or arising out of the ownership, use, occupancy or maintenance of the Premises
and all areas appurtenant thereto. Such insurance
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shall be on an claims made basis providing single limited coverage in an amount
not less than $2,000,000 per occurrence with an "Additional Insured-Managers or
Lessors of Premises Endorsement" and contain the "Amendment of the Pollution
Exclusion Endorsement" for damage caused by heat, smoke or fumes from a hostile
fire. The Policy shall not contain any intra-insured exclusions as between
insured persons or organizations, but shall include coverage for liability
assumed under this Lease as an "insured contract" for the performance of
Lessee's indemnity obligations under this Lease. The limits of said insurance
shall not, however, limit the liability of Lessee nor relieve Lessee of any
obligation hereunder. All insurance carried by Lessee shall be primary to and
not contributory with any similar insurance carried by Lessor, whose insurance
shall be considered excess insurance only.
(b) CARRIED BY LESSOR. Lessor shall maintain liability insurance
as described in Paragraph 8.2(a), in addition to, and not in lieu of, the
insurance required to be maintained by Lessee. Lessee shall not be named as an
additional insured therein.
8.3 PROPERTY INSURANCE - BUILDING, IMPROVEMENTS AND RENTAL VALUE.
(a) BUILDING AND IMPROVEMENTS. The Insuring Party shall obtain and
keep in force a policy or policies in the name of Lessor, with loss payable to
Lessor, any ground lessor, and to any Lender(s) insuring loss or damage to the
Premises. The amount of such insurance shall be equal to the full replacement
cost of the Premises, as the same shall exist from time to time, or the amount
required by any Lenders, but in no event more than the commercially reasonable
and available insurable value thereof. If Lessor is the Insuring Party, however,
Lessee Owned Alterations and Utility Installations, Trade Fixtures, and Lessee's
personal property shall be insured by Lessee under Paragraph 8.4 rather than by
Lessor. If the coverage is available and commercially appropriate, such policy
or policies shall insure against all risks of direct physical loss or damage
(except the perils of flood and/or earthquake unless ), including coverage for
debris removal and the enforcement of any Applicable Requirements requiring the
upgrading, demolition, reconstruction or replacement of any portion of the
Premises as the result of a covered loss. Said policy or policies shall also
contain an agreed valuation provision in lieu of an coinsurance clause, waiver
of subrogation, and inflation guard protection causing an increase in the annual
property insurance coverage amount by a factor of not less than the adjusted
U.S. Department of Labor Consumer Price Index for All Urban Consumers for the
city nearest to where the Premises are located. If such insurance coverage has a
deductible clause, the deductible amount shall not exceed $1,000 per occurrence,
and Lessee shall be liable for such deductible amount in the event of an Insured
Loss. At Lessor's election, such insurance shall include earthquake insurance.
Any deductible payable in connection with any earthquake insurance shall be paid
for by Lessee.
(b) RENTAL VALUE. Intentionally omitted.
(c) ADJACENT PREMISES. Intentionally omitted.
8.4 LESSEE'S PROPERTY/BUSINESS INTERRUPTION INSURANCE.
(a) PROPERTY DAMAGE. Lessee shall obtain and maintain insurance
coverage on all of Lessee's personal property, Trade Fixtures, and Lessee Owned
Alterations and Utility
PAGE 10.
Installations in the Premises. Such insurance shall be full replacement cost
coverage with a deductible of not to exceed Ten Thousand Dollars ($10,000.00)
per occurrence. The proceeds from any such insurance shall be used by Lessee for
the replacement of personal property, Trade Fixtures and Lessee Owned
Alterations and Utility Installations. Lessee shall provide Lessor with written
evidence that such insurance is in force.
(b) BUSINESS INTERRUPTION. Lessee shall obtain and maintain loss
of income and extra expense insurance in amounts as will reimburse Lessee for
direct or indirect loss of earnings attributable to all perils commonly insured
against by prudent lessees in the business of Lessee or attributable to
prevention of access to the Premises as a result of such perils.
(c) NO REPRESENTATION OF ADEQUATE COVERAGE. Lessor makes no
representation that the limits or forms of coverage of insurance specified
herein are adequate to cover Lessee's property, business operations or
obligations under this Lease.
8.5 INSURANCE POLICIES. Insurance required herein shall be by companies
duly licensed or admitted to transact business in the state where the Premises
are located, and maintaining during the policy term a "General Policyholders
Rating" of at least B+, V, as set forth in the most current issue of "Best's
Insurance Guide," or such other rating as may be or as otherwise approved by
Lessor in the exercise of its reasonable discretion. Lessee shall not do or
permit to be done anything which invalidates the required insurance policies.
Lessee shall, prior to the Start Date, deliver to Lessor certified copies of
policies of such insurance or certificates evidencing the existence and amounts
of the required insurance. No such policy shall be cancellable except after
thirty (30) days prior written notice to Lessor. Lessee shall, at least thirty
(30) days prior to the expiration of such policies, furnish Lessor with evidence
of renewals or "insurance binders" evidencing renewal thereof, or Lessor may
order such insurance and charge the cost thereof to Lessee, which amount shall
be payable by Lessee to Lessor upon demand. Such policies shall be for a term of
at least one year, or the length of the remaining term of this Lease, whichever
is less. If either Party shall fail to procure and maintain the insurance
required to be carried by it, the other Party may, but shall not be required to,
procure and maintain the same.
8.6 WAIVER OF SUBROGATION. Without affecting any other rights or
remedies, Lessee and Lessor each hereby release and relieve the other, and waive
their entire right to recover damages against the other, for loss of or damage
to its property arising out of or incident to the perils required to be insured
against herein. The effect of such releases and waivers is not limited by the
amount of insurance carried or required, or by any deductibles applicable
hereto. The Parties agree to have their respective property damage insurance
carriers waive any right to subrogation that such companies may have against
Lessor or Lessee, as the case may be, so long as the insurance is not
invalidated thereby.
8.7 INDEMNITY. Intentionally omitted.
8.8 EXEMPTION OF LESSOR FROM LIABILITY. Lessor shall not be liable for
injury or damage to the person or goods, wares, merchandise or other property of
Lessee, Lessee's employees, contractors, invitees, customers, or any other
person in or about the Premises, whether such damage or injury is caused by or
results from fire, steam, electricity, gas, water or
PAGE 11.
rain, or from the breakage, leakage, obstruction or other defects or pipes, fire
sprinklers, wires, appliances, plumbing, HVAC or lighting fixtures, or from any
other cause, whether the said injury or damage results from conditions arising
upon the Premises or upon other portions of the Building of which the Premises
arc a part, or from other sources or places; provided, however, that this
provision shall in no event exempt Lessor from liability for its own gross
negligence, intentional misconduct or breach of this Lease. Lessor shall not be
liable for any damages arising from any act or neglect of any other tenant of
Lessor. Notwithstanding Lessor's negligence or breach of this Lease, Lessor
shall under no circumstances be liable for injury to Lessee's business or for
any loss of income or profit therefrom.
9. DAMAGE OR DESTRUCTION.
9.1 DEFINITIONS.
(a) "PREMISES PARTIAL DAMAGE" shall mean damage or destruction to
the improvements on the Premises, other than Lessee Owned Alterations and
Utility Installations, which can reasonably be repaired in six (6) months or
less from the date of the damage or destruction. Lessor shall notify Lessee in
writing within thirty (30) days from the date of the damage or destruction as to
whether or not the damage is Partial or Total.
(b) "PREMISES TOTAL DESTRUCTION" shall mean damage or destruction
to the Premises, other than Lessee Owned Alterations and Utility installations
and Trade Fixtures, which cannot reasonably be repaired in six (6} months or
less from the date of the damage or destruction. Lessor shall notify Lessee in
writing within thirty {30) days from the date of the damage or destruction as to
whether or not the damage is Partial or Total.
(c) "INSURED LOSS" shall mean damage or destruction to
improvements on the Premises, other than Lessee Owned Alterations and Utility
Installations and Trade Fixtures, which was caused by an event required to be
covered by the insurance described in Paragraph 8.3(a), irrespective of any
deductible amounts or coverage limits involved.
(d) "REPLACEMENT COST" shall mean the cost to repair or rebuild
the improvements owned by Lessor at the time of the occurrence to their
condition existing immediately prior thereto, including demolition, debris
removal and upgrading required by the operation of Applicable Requirements, and
without deduction for depreciation.
(e) Intentionally omitted.
9.2 PARTIAL DAMAGE - INSURED LOSS. If a Premises Partial Damage that is
an insured Loss occurs, then Lessor shall, at Lessor's expense, repair such
damage (but not Lessee's Trade Fixtures or Lessee Owned Alterations and Utility
Installations) as soon as reasonably possible and this Lease shall continue in
full force and effect; provided, however, that Lessee shall, at Lessor's
election, make the repair of any damage or destruction the total cost to repair
of which is $10,000 or less, and, in such event, Lessor shall make any
applicable Insurance proceeds available to Lessee on a reasonable basis for that
purpose. Notwithstanding the foregoing, if the required insurance was not in
force or the insurance proceeds are not sufficient to effect such repair, the
insuring Party shall promptly contribute the shortage in proceeds (except as to
the deductible which is Lessee's responsibility) as and when required to
complete said repairs. In the
PAGE 12.
event, however, such shortage was due to the fact that, by reason of the unique
nature of the improvements, full replacement cost insurance coverage was not
commercially reasonable and available, Lessor shall have no obligation to pay
for the shortage in insurance proceeds or to fully restore the unique aspects of
the Premises unless Lessee provides Lessor with the funds to cover same, or
adequate assurance thereof, within ten (10) days following receipt of written
notice of such shortage and request therefor. If Lessor receives said funds or
adequate assurance thereof within said ten (10) day period, the party
responsible for making the repairs shall complete them as soon as reasonably
possible and this Lease shall remain in full force and effect. If such funds or
assurance are not received, Lessor may nevertheless elect by written notice to
Lessee within ten (10) days thereafter to: a. make such restoration and repair
as is commercially reasonable with Lessor paying any shortage in proceeds, in
which case this Lease shall remain in full force and effect; or b. have this
Lease terminate thirty (30) days thereafter. Lessee shall not be entitled to
reimbursement of any funds contributed by Lessee to repair any such damage or
destruction. Premises Partial Damage due to flood or earthquake shall be subject
to Paragraph 9.3, notwithstanding that there may be some Insurance coverage, but
the net proceeds of any such Insurance shall be made available for the repairs
if made by either Party.
9.3 PARTIAL DAMAGE - UNINSURED LOSS. If a Premises Partial Damage that
is not an Insured Loss occurs, unless caused by a negligent or willful act of
Lessee (in which event Lessee shall make the repairs at Lessee's expense),
Lessor may either: a. repair such damage as soon as reasonably possible at
Lessor's expense, in which event this Lease shall continue in full force and
effect, or b. terminate this Lease by giving written notice to Lessee within
thirty (30) days after receipt by Lessor of knowledge of the occurrence of such
damage. Such termination shall be effective sixty (60) days following the date
of such notice. In the event Lessor elects to terminate this Lease, Lessee shall
have the right within ten (10) days after receipt of the termination notice to
give written notice to Lessor of Lessee's commitment to pay for the repair of
such damage without reimbursement from Lessor. Lessee shall provide Lessor with
said funds or satisfactory assurance thereof within thirty (30) days after
making such commitment. In such event this Lease shall continue in full force
and effect, and Lessor shall proceed to make such repairs as soon as reasonably
possible after the required funds are available. If Lessee does not make the
required commitment, this Lease shall terminate as of the date specified in the
termination notice.
9.4 TOTAL DESTRUCTION. Notwithstanding any other provision hereof, if a
Premises Total Destruction occurs, this Lease shall terminate sixty (60) days
following such Destruction during which time rent shall be abated. If the damage
or destruction was caused by the gross negligence or willful misconduct of
Lessee, Lessor shall have the right to recover Lessor's damages from Lessee,
except as provided in Paragraph 8.6.
9.5 DAMAGE NEAR END OF TERM. If any time during the last six (6) months
of this Lease there is damage for which the cost to repair exceeds one (1)
month's Base Rent, whether or not an Insured Loss, Lessor and Lessee may
terminate this Lease effective sixty (60) days following the date of occurrence
of such damage by giving a written termination notice to Lessee or Lessor within
thirty (30) days after the date of occurrence of such damage. Notwithstanding
the foregoing, if Lessee at that time has an exercisable option to extend this
Lease or to purchase the Premises, then Lessee may preserve this Lease by (a)
exercising such option and (b) providing Lessor with any shortage in insurance
proceeds (or adequate assurance thereof) needed
PAGE 13.
to make the repairs on or before the earlier of a. the date which is ten (10)
days after Lessee's receipt of Lessor's written notice purporting to terminate
this Lease, or b. the day prior to the date upon which such option expires. If
Lessee duly exercises such option during such period and provides Lessor with
funds (or adequate assurance thereof) to cover any shortage in insurance
proceeds, Lessor shall, at Lessor's commercially reasonable expense, repair such
damage as soon as reasonably possible and this Lease shall continue in full
force and effect. If Lessee fails to exercise such option and provide such funds
or assurance during such period, then this Lease shall terminate on the date
specified in the termination notice and Lessee's option shall be extinguished.
9.6 ABATEMENT OF RENT; LESSEE'S REMEDIES.
(a) ABATEMENT. In the event of Premises Partial Damage or Premises
Total Destruction or a Hazardous Substance Condition for which Lessee is not
responsible under this Lease, the Rent payable by Lessee for the period required
for the repair, remediation or restoration of such damage shall be abated in
proportion to the degree to which Lessee's use of the Premises is impaired, but
not to exceed the proceeds received from the Rental Value Insurance. Lessor
shall have no liability for any such damage, destruction, remediation, repair or
restoration except as provided herein. If Lessor, solely through its gross
negligence or intentional misconduct, fails to repair or restore the Premises in
accordance with the terms of this Lease and such failure materially impairs
Lessee's use of the Premises, Lessee shall be entitled to rent abatement until
such repairs are made.
(b) REMEDIES. If Lessor shall be obligated to repair or restore
the Premises and does not commence, in a substantial and meaningful way, such
repair or restoration in a diligent good faith manner but in no event later than
ninety (90) days after such obligation shall accrue, Lessee may, at any time
prior to the commencement of such repair or restoration, give written notice to
Lessor and to any Lenders of which Lessee has actual notice, of Lessee's
election to terminate this Lease on a date not less than thirty (30) days
following the giving of such notice. If Lessee gives such notice and such repair
or restoration is not commenced within thirty (30) days thereafter, this Lease
shall terminate as of the date specified in said notice. If the repair or
restoration is commenced within said thirty (30) days, this Lease shall continue
in full force and effect. Additionally, either party shall have the right to
terminate this Lease by providing sixty (60) days written notice to the other
party following the date of such damage to the Premises if the repairs to the
Premises cannot be reasonably completed within one hundred twenty (120) days
after the date of such damage. "Commence" shall mean either the unconditional
authorization of the preparation of the required plans, or the beginning of the
actual work on the Premises, whichever first occurs.
9.7 TERMINATION-ADVANCE PAYMENTS. Upon termination of this Lease
pursuant to Paragraph 6.2(g) or Paragraph 9, an equitable adjustment shall be
made concerning advance Base Rent and any other advance payments made by Lessee
to Lessor. Lessor shall, in addition, return to Lessee so much of Lessee's
Security Deposit as has not been, or is not then required to be, used by Lessor.
9.8 WAIVE STATUTES. Lessor and Lessee agree that the terms of this Lease
shall govern the effect of any damage to or destruction of the Premises with
respect to the termination of this
PAGE 14.
Lease and hereby waive the provisions of any present or future statute to the
extent inconsistent herewith.
10. REAL PROPERTY TAXES.
10.1 DEFINITION OF "REAL PROPERTY TAXES." As used herein, the term "Real
Property Taxes" shall include any form of assessment; real estate, general,
special, ordinary or extraordinary, or rental levy or tax (other than
inheritance, personal income or estate taxes); improvement bond; and/or license
fee imposed upon or levied against any legal or equitable interest of Lessor in
the Premises, Lessor's right to other income therefrom, and/or Lessor's business
of leasing, by any authority having the direct or indirect power to tax and
where the funds are generated with reference to the Building address and where
the proceeds so generated are to be applied by the city, county or other local
taxing authority of a jurisdiction within which the Premises are located. The
term "Real Property Taxes" shall also include any tax, fee, levy, assessment or
charge, or any increase therein, imposed by reason of events occurring during
the term of this Lease, including but not limited to, a change in the ownership
of the Premises. Notwithstanding the foregoing, "Reel Property Taxes" shall not
include any corporate, franchise or estate taxes or taxes on Lessor's income
from all sources.
10.2
(a) PAYMENT OF TAXES. Lessee shall pay the Real Property Taxes
applicable to the Premises during the term of this Lease. Subject to Paragraph
10.2(b), all such payments shall be made at least ten (10) days prior to any
delinquency date. Lessee shall promptly furnish Lessor with satisfactory
evidence that such taxes have been paid. If any such taxes shall cover any
period of time prior to or after the expiration or termination of this Lease,
Lessee's share of such taxes shall be prorated to cover only that portion of the
tax xxxx applicable to the period that this Lease is in effect, and Lessor shall
reimburse Lessee for any overpayment or, alternatively, at the option of Lessee,
Lessee may deduct the amount of any such overpayment from the next installment
of Rent falling due. If Lessee shall fail to pay any required Real Property
Taxes, Lessor shall have the right to pay the same, and Lessee shall reimburse
Lessor therefor upon demand.
(b) ADVANCE PAYMENT. In the event Lessee incurs more than two (2)
late charges on Rent payments in any Lease year, Lessor may, at Lessor's option,
estimate the current Real Property Taxes, and require that such taxes be paid in
advance to Lessor by Lessee, either: a. in a lump sum amount equal to the
installment due, at least twenty (20) days prior to the applicable delinquency
date, or b. monthly in advance with the payment of the Base Rent. If Lessor
elects to require payment monthly in advance, the monthly payment shall be an
amount equal to the amount of the estimated installment of taxes divided by the
number of months remaining before the month in which said installment becomes
delinquent. When the actual amount of the applicable tax xxxx is known, the
amount of such equal monthly advance payments shall be adjusted as required to
provide the funds needed to pay the applicable taxes. If the amount collected by
Lessor is insufficient to pay such Real Property Taxes when due, Lessee shall
pay Lessor, upon demand, such additional sums as are necessary to pay such
obligations. All moneys paid to Lessor under this Paragraph may be intermingled
with other moneys of Lessor and shall not bear interest. In the event of a
Breach by Lessee in the performance of its
PAGE 15.
obligations under this Lease, then any balance of funds paid to Lessor under the
provisions of this Paragraph may at the option of Lessor, be treated as an
additional Security Deposit.
(c) JOINT ASSESSMENT. If the Premises are not separately assessed,
Lessee's liability shall be an equitable proportion of the Real Property Taxes
for all of the land and improvements included within the tax parcel assessed,
such proportion to be conclusively determined by Lessor from the respective
valuations assigned in the assessor's work sheets or such other information as
may be reasonably available.
10.3 PERSONAL PROPERTY TAXES. Lessee shall pay, prior to delinquency, all
taxes assessed against and levied upon Lessee Owned Alterations, Utility
Installations, Trade Fixtures, furnishings, equipment and all personal property
of Lessee. When possible, Lessee shall cause such property to be assessed and
billed separately from the real property of Lessor. If any of Lessee's said
personal property shall be assessed with Lessor's real property, Lessee shall
pay Lessor the taxes attributable to Lessee's property at the time it pays Real
Property Taxes.
11. UTILITIES. Lessee shall pay for all water, gas, heat, light, power,
telephone, trash disposal and other utilities and services supplied during the
Term to the Premises, together with any taxes thereon. If any such services are
not separately metered to Lessee, Lessee shall pay a reasonable proportion, to
be determined by Lessor, of all charges jointed metered.
12. ASSIGNMENT AND SUBLETTING.
13. DEFAULT; BREACH; REMEDIES.
13.1 DEFAULT; BREACH. A "Default" is defined as a failure by the Lessee
to comply with or perform any of the terms, covenants, conditions or rules under
this Lease. A "Breach" is defined as the occurrence of one or more of the
following Defaults, and the failure of Lessee to cure such Default within any
applicable grace period:
(a) The abandonment of the Premises, or the vacating of the
Premises without providing a commercially reasonable level of security, or where
the coverage of the property insurance described in Paragraph 8.3 is jeopardized
as a result thereof, or without providing reasonable assurances to minimize
potential vandalism.
(b) The failure of Lessee to make any payment of Rent or any
Security Deposit required to be made by Lessee hereunder, whether to Lessor or
to a third party, when due, to provide reasonable evidence of insurance or
surety bond, or to fulfill any obligation under this Lease which endangers or
threatens life or property, where such failure continues for a period of three
(3) business days following written notice to Lessee.
(c) The failure by Lessee to provide (i) reasonable written
evidence of compliance with Applicable Requirements, (ii) the service contracts,
(iii) the rescission of an unauthorized assignment or subletting, (iv) an
Estoppel Certificate, (v) a requested subordination, (vi) evidence concerning
any guaranty and/or Guarantor, (vii) any document requested under Paragraph 42
(easements), or (viii) any other documentation or information which Lessor may
reasonably require of Lessee under the terms of this Lease, where any such
failure continues for a period of fifteen (15) days following written notice to
Lessee.
PAGE 16.
(d) A Default by Lessee as to the terms, covenants, conditions or
provisions of this Lease, or of the rules adopted under Paragraph 40 hereof,
other than those described in subparagraphs 13.1(a), (b) or (c), above, where
such Default continues for a period of thirty (30) days after written notice;
provided, however, that if the nature of Lessee's Default is such that more than
thirty (30) days are reasonably required for its cure, then it shall not be
deemed to be a Breach if Lessee commences such cure within said thirty (30) day
period and thereafter diligently prosecutes such cure to completion.
(e) The occurrence of any of the following events: (i) the making
of any general arrangement or assignment for the benefit of creditors; (ii)
becoming a "debtor" as defined in 11 U.S.C. ss. 101 or any successor statute
thereto (unless, in the case of a petition filed against Lessee, the same is
dismissed within sixty (60) days); (iii) the appointment of a trustee or
receiver to take possession of substantially all of Lessee's assets located at
the Premises or of Lessee's interest in this Lease, where possession is not
restored to Lessee within thirty (30) days; or (iv) the attachment, execution or
other judicial seizure of substantially all of Lessee's assets located at the
Premises or of Lessee's interest in this Lease, where such seizure is not
discharged within thirty (30) days; provided, however, in the event that any
provision of this subparagraph (e) is contrary to any applicable law, such
provision shall be of no force or effect, and not affect the validity of the
remaining provisions.
(f) The discovery that any financial statement of Lessee or of any
Guarantor given to Lessor was materially false.
13.2 REMEDIES. Intentionally omitted.
13.3 INDUCEMENT RECAPTURE. Intentionally omitted.
13.4 LATE CHARGES. Lessee hereby acknowledges that late payment by
Lessee of Rent will cause Lessor to incur costs not contemplated by this Lease,
the exact amount of which will be extremely difficult to ascertain. Such costs
include, but are not limited to, processing and accounting charges, and late
charges which may be imposed upon Lessor by any Lender. Accordingly, if any Rent
shall not be received by Lessor within five (5) days after such amount shall be
due, then, upon notice to Lessee, Lessee shall pay to Lessor a one-time late
charge equal to six percent (6%) of each such overdue amount. The parties hereby
agree that such late charge represents a fair and reasonable estimate of the
costs Lessor will incur by reason of such late payment. Acceptance of such late
charge by Lessor shall in no event constitute a waiver of Lessee's Default or
Breach with respect to such overdue amount, nor prevent the exercise of any of
the other rights and remedies granted hereunder. In the event that a late charge
is payable hereunder, whether or not collected, for three (3) consecutive
installments of Base Rent, then notwithstanding any provision of this Lease to
the contrary, Base Rent shall, at Lessor's option, become due and payable
quarterly in advance.
13.5 INTEREST. Any monetary payment due Lessor hereunder, other than
late charges, not received by Lessor, when due as to scheduled payments (such as
Base Rent) or within thirty (30) days following the date on which it was due for
non-scheduled payment, shall bear interest from the date when due, as to
scheduled payments, or the thirty-first (31st) day after it was due as to
non-scheduled payments. The interest ("Interest") charged shall be equal to the
prime rate
PAGE 17.
reported in the Wall Street Journal as published closest prior to the date when
due plus four percent (4%) but shall not exceed the maximum rate allowed by law.
Interest is payable in addition to the potential late charge provided for in
Paragraph 13.4
13.6 BREACH BY LESSOR.
(a) NOTICE OF BREACH. Lessor shall not be deemed in breach of this
Lease unless Lessor fails within a reasonable time to perform an obligation
required to be performed by Lessor. For purposes of this Paragraph, a reasonable
time shall be thirty (30) days after receipt by Lessor, and any Lender whose
name and address shall have been furnished Lessee in writing for such purpose,
of written notice specifying wherein such obligation of Lessor has not been
performed; provided, however, that if the nature of Lessor's obligation is such
that more than thirty (30) days are reasonably required for its performance,
then Lessor shall not be in breach if performance is commenced within such
thirty (30) day period and thereafter diligently pursued to completion and
provided further, that if the nature of Lessor's obligation is such that more
immediate action is needed to avoid injury or expense to Lessee, then a
"reasonable period" for purposes of this paragraph shall be less than thirty
(30) days.
(b) Performance by Lessee on Behalf of Lessor. In the event that
neither Lessor nor Lender cures said breach within thirty (30) days after
receipt of said notice, or if having commenced said cure they do not diligently
pursue it to completion, then Lessee may elect to cure said breach at Lessee's
expense and offset from Rent an amount equal to such expense, so long as the
amount of such expense is commercially reasonable. Lessee shall document the
cost of said cure and supply said documentation to Lessor.
14. CONDEMNATION. If the Premises or any portion thereof are taken under the
power of eminent domain or sold under the threat of the exercise of said power
(collectively "Condemnation"), this Lease shall terminate as to the part taken
as of the date the condemning authority takes title or possession,-whichever
first occurs. If more than ten percent (10%) of any building portion of the
premises, or more than twenty-five percent (25%) of the land area portion of the
premises not occupied by any building, is taken by Condemnation, Lessee may, at
Lessee's option, to be exercised in writing within ten (10) days after Lessor
shall have given Lessee written notice of such taking (or in the absence of such
notice, within ten (10) days after the condemning authority shall have taken
possession) terminate this Lease as of the date the condemning authority takes
such possession. If Lessee does not terminate this Lease in accordance with the
foregoing, this Lease shall remain in full force and effect as to the portion of
the Premises remaining, except that the Base Rent shall be reduced in proportion
to the reduction in utility of the Premises caused by such Condemnation.
Condemnation awards and/or payments shall be the property of Lessor, whether
such award shall be made as compensation for diminution in value of the
leasehold, the value of the part taken, or for severance damages; provided,
however, that Lessee shall be entitled to any compensation for Lessee's
relocation expenses, loss of business goodwill and/or Trade Fixtures, without
regard to whether or not this Lease is terminated pursuant to the provisions of
this Paragraph. All Alterations and Utility Installations made to the Premises
by Lessee, for purposes of Condemnation only, shall be considered the property
of the Lessee and Lessee shall be entitled to any and all compensation which is
payable therefor. In the event that this Lease is not terminated by reason of
the Condemnation, Lessor shall repair any damage to the Premises caused by such
Condemnation.
PAGE 18.
15. BROKER'S FEE. Intentionally omitted.
16. ESTOPPEL CERTIFICATES.
(a) Each Party (as "Responding Party") shall within ten'(10)
business days after written notice from the other Party (the "Requesting Party")
execute, acknowledge and deliver to the Requesting Party a statement in writing
in form similar to the then most current "Estoppel Certificate" form published
by the American Industrial Real Estate Association, plus such additional
information, confirmation and/or statements as may be reasonably requested by
the Requesting Party.
(b) If the Responding Party shall fail to execute or deliver the
Estoppel Certificate within such ten (10) day period, the Requesting Party may
execute an Estoppel Certificate stating that: (i) the Lease is in full force and
effect without modification except as may be represented by the Requesting
Party, (ii) there are no uncured defaults in the Requesting Party's performance,
and (iii) if Lessor is the Requesting Party, not more than one (1) month's rent
has been paid in advance. Prospective purchasers and encumbrancers may rely upon
the Requesting Party's Estoppel Certificate, and the Responding Party shall be
estopped from denying the truth of the facts contained in said Certificate.
(c) If Lessor desires to finance, refinance, or sell the Premises,
or any part thereof, Lessee and all Guarantors shall deliver to any potential
lender or purchaser designated by Lessor such then currently existing financial
statements as may be reasonably required by such lender or purchaser, including
but not limited to Lessee's audited financial statements for the past three (3)
years. All such financial statements shall be received by Lessor and such lender
or purchaser in confidence and shall be used only for the purposes herein set
forth.
17. DEFINITION OF LESSOR. The term "Lessor" as used herein shall mean the
owner or owners at the time in question of the fee title to the Premises, or, if
this is a sublease, of the Lessee's interest in the prior lease. In the event of
a transfer of Lessor's title or interest in the Premises or this Lease, Lessor
shall deliver to the transferee or assignee (in cash or by credit) any unused
Security Deposit held by Lessor. Except as provided in Paragraph 15, upon such
transfer or assignment and delivery of the Security Deposit, as aforesaid, the
prior Lessor shall be relieved of all liability with respect to the obligations
and/or covenants under this Lease thereafter to be performed by the Lessor.
Subject to the foregoing, the obligations and/or covenants in this Lease to be
performed by the Lessor shall be binding only upon the Lessor as hereinabove
defined. Notwithstanding the above, and subject to the provisions of Paragraph
20 below, the original Lessor under this Lease, and all subsequent holders of
the Lessor's interest in this Lease shall remain liable and responsible with
regard to the potential duties and liabilities of Lessor pertaining to Hazardous
Substances as outlined in Paragraph 5.3 or the Addendum hereto.
18. SEVERABILITY. The invalidity of any provision of this Lease, as
determined by a court of competent jurisdiction, shall in no way affect the
validity of any other provision hereof.
19. DAYS. Unless otherwise specifically indicated to the contrary, the word
"Days" as used in this Lease shall mean and refer to calendar days.
PAGE 19.
20. LIMITATION ON LIABILITY. Subject to the provisions of Paragraph 17 above,
the obligations of Lessor under this Lease shall not constitute personal
obligations of Lessor, the individual partners of Lessor or its or their
individual partners, directors, officers or shareholders, and Lessee shall look
to the Premises, and to no other assets of Lessor, for the satisfaction of any
liability of Lessor with respect to this Lease, and shall not seek recourse
against the individual partners of Lessor, or its or their individual partners,
directors, officers or shareholders, or any of their personal assists for such
satisfaction.
21. TIME OF ESSENCE. Time is of the essence with respect to the performance of
all obligations to be performed or observed by the Parties under this Lease.
22. NO PRIOR OR OTHER AGREEMENTS; BROKER DISCLAIMER. This Lease contains all
agreements between the Parties with respect to any matter mentioned herein, and
no other prior or contemporaneous agreement or understanding shall be effective.
Lessor and Lessee each represents and warrants to the Brokers that it has made,
and is relying solely upon its own investigation as to the nature, quality,
character and financial responsibility of the other Party to this Lease and as
to the nature, quality and character of the Premises. Brokers have no
responsibility with respect thereto or with respect to any default or breach
hereof by either Party. The liability (including court costs and Attorneys'
fees), of any Broker with respect to negotiation, execution, delivery or
performance by either Lessor or Lessee under this Lease or any amendment or
modification hereto shall be limited to an amount up to the fee received by such
Broker pursuant to this Lease; provided, however, that the foregoing limitation
on each Broker's liability shall not be applicable to any gross negligence or
willful misconduct of such Broker.
23. NOTICES.
23.1 NOTICE REQUIREMENTS. All notices required or permitted by this Lease
shall be in writing and may be delivered in person (by hand or by courier) or
may be sent by regular, certified or registered mail or U.S. Postal Service
Express Mail, with postage prepaid, or by facsimile transmission, and shall be
deemed sufficiently given if served in a manner specified in this Paragraph 23.
The addresses noted adjacent to a Party's signature on this Lease shall be that
Party's address for delivery or mailing of notices. Either Party may be written
notice to the other specify a different address for notice. A copy of all
notices to Lessor shall be concurrently transmitted to such party or parties at
such addresses as Lessor may from time to time hereafter designate in writing
and to Lessee's general counsel.
23.2 DATE OF NOTICE. Any notice sent by registered or certified mail,
return receipt requested, shall be deemed given on the date of delivery shown on
the receipt card, or if no delivery date is shown, the postmark thereon. If sent
by regular mail the notice shall be deemed given forty-eight (48) hours after
the same is addressed as required herein and mailed with postage prepaid.
Notices delivered by United States Express Mail or overnight courier that
guarantee next day delivery shall be deemed given twenty-four (24) hours after
delivery of the same to the Postal Service or courier. Notices transmitted by
facsimile transmission or similar means shall be deemed delivered upon telephone
confirmation of receipt, provided a copy is also delivered via delivery or mail.
If notice is received on a Saturday, Sunday or legal holiday, it shall be deemed
received on the next business day.
PAGE 20.
24. WAIVERS. No waiver by Lessor of the Default or Breach of any term,
covenant or condition hereof by Lessee, shall be deemed a waiver of any other
term, covenant or condition hereof, or of any subsequent Default or Breach by
Lessee of the same or of any other term, covenant or condition hereof. Lessor's
consent to, or approval of, any act shall not be deemed to render unnecessary
the obtaining of Lessor's consent to, or approval of, any subsequent or similar
act by Lessee, or be construed as the basis of an estoppel to enforce the
provision or provisions of this Lease requiring such consent. The acceptance of
Rent by Lessor shall not be a waiver of any Default or Breach by Lessee. Any
payment by Lessee may be accepted by Lessor on account of moneys or damages due
Lessor, notwithstanding any qualifying statements or conditions made by Lessee
in connection therewith, which such statements and/or conditions shall be of no
force or effect whatsoever unless specifically agreed to in writing by Lessor at
or before the time of deposit of such payment.
25. RECORDING. Either Lessor or Lessee shall, upon request of the other,
execute, acknowledge and deliver to the other a short form memorandum of this
Lease for recording purposes. The Party requesting recordation shall be
responsible for payment of any fees applicable thereto.
26. NO RIGHT TO HOLDOVER. Lessee has no right to retain possession of the
Premises or any part thereof beyond the expiration or termination of this Lease.
In the event that Lessee holds over, then the Base Rent shall be increased to
one hundred fifty percent (150%) of the Base Rent applicable during the month
immediately preceding the expiration or termination. Nothing contained herein
shall be construed as consent by Lessor to any holding over by Lessee.
27. CUMULATIVE REMEDIES. No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other remedies at
law or in equity.
28. COVENANTS AND CONDITIONS; CONSTRUCTION OF AGREEMENT. All provisions of
this Lease to be observed or performed by Lessee and Lessor are both covenants
and conditions. In construing this Lease, all headings and titles are for the
convenience of the parties only and shall not be considered a part of this
Lease. Whenever required by the context, the singular shall include the plural
and vice versa. This Lease shall not be construed as if prepared by one of the
parties, but rather according to its fair meaning as a whole, as if both parties
had prepared it.
29. BINDING EFFECT/CHOICE OF LAW. This Lease shall be binding upon the
parties, their personal representatives, successors and assigns and be governed
by the laws of the State in which the Premises are located. Any litigation
between the Parties hereto concerning this Lease shall be initiated in the
county in which the Premises are located.
30. SUBORDINATION; ATTORNMENT; NON-DISTURBANCE.
30.1 SUBORDINATION. This Lease and any Option granted hereby shall be
subject and subordinate to any ground lease, mortgage, deed of trust, or other
hypothecation or security device (collectively, "Security Device"), now or
hereafter placed upon the Premises, to any and a11 advances made on the security
thereof, and to all renewals, modifications, and extensions thereof. Lessee
agrees that the holders of any such Security Devices (in this Lease together
referred to as "Lender") shall have no liability or obligation to perform any of
the obligations of
PAGE 21.
Lessor under this Lease. Any Lender may elect to have this Lease and/or any
Option granted hereby superior to the lien of its Security Device by giving
written notice thereof to Lessee, whereupon this Lease and such Options shall be
deemed prior to such Security Device, notwithstanding the relative dates of the
documentation or recordation thereof.
30.2 ATTORNMENT. Subject to the non-disturbance provisions of Paragraph
30.3, Lessee agrees to attorn to a Lender or any other party who acquires
ownership of the Premises by reason of a foreclosure of a Security Device, and
that in the event of such foreclosure, such new owner shall not: (i) be liable
for any act or omission of any prior lessor or with respect to events occurring
prior to acquisition of ownership; (ii) be subject to any offsets or defenses
which Lessee might have against any prior lessor, or (iii) be bound by
prepayment of more than one (1) month's rent.
30.3 NON-DISTURBANCE. With respect to Security Devices entered into by
Lessor after the execution of this Lease, Lessee's subordination of this Lease
shall be subject to receiving a commercially reasonable non-disturbance
agreement (a "Non-Disturbance Agreement") from the Lender which Non-Disturbance
Agreement provides that Lessee's possession of the Premises, and this Lease,
including any options to extend the term hereof, will not be disturbed so long
as Lessee is not in Breach hereof and attorns to the record owner of the
Premises. Further, within sixty (60) days after the execution of this Lease,
Lessor shall use its commercially reasonable efforts to obtain a Non-Disturbance
Agreement from the holder of any pre-existing Security Device which is secured
by the Premises. In the event that Lessor is unable to provide the
Non-Disturbance Agreement within said sixty (60) days, then Lessee may, at
Lessee's option, directly contact Lessor's lender and attempt to negotiate for
the execution and delivery of a Non-Disturbance Agreement.
30.4 SELF-EXECUTING. The agreements contained in this Paragraph 30 shall
be effective without the execution of any further documents; provided, however,
that, upon written request from Lessor or a Lender in connection with a sale,
financing or refinancing of the Premises, Lessee and Lessor shall execute such
further writings as may be reasonably required to separately document any
subordination, attornment and/or Non-Disturbance' Agreement provided for herein.
31. ATTORNEYS' FEES. If any Party or Broker brings an action or proceeding
involving the Premises to enforce the terms hereof or to declare rights
hereunder, the Prevailing Party (as hereafter defined) in any such proceeding,
action, or appeal thereon, shall be entitled to reasonable attorneys' fees. Such
fees may be awarded in the same suit or recovered in a separate suit, whether or
not such action or proceeding is pursued to decision or judgment. The term,
"Prevailing Party" shall include, without limitation, a Party or Broker who
substantially obtains or defeats the relief sought, as the case may be, whether
by compromise, settlement, judgment, or the abandonment by the other Party or
Broker of its claim or defense. The attorneys'-fees award shall not be computed
in accordance with any court fee schedule, but shall be such as to fully
reimburse all attorneys' fees reasonably incurred. In addition, Lessor shall be
entitled to attorneys' fees, costs and expenses incurred in the preparation and
service of notices of Default and consultations in connection therewith, whether
or not a legal action is subsequently commenced in connection with such Default
or resulting Breach.
PAGE 22.
32. LESSOR'S ACCESS; SHOWING PREMISES; REPAIRS. Lessor and Lessor's agents
shall have the right to enter the Premises at any time, in the case of an
emergency, and otherwise upon twenty-four (24) hours' notice for the purpose of
showing the same to prospective purchasers, lenders, or lessees, and making such
alterations, repairs, improvements or additions to the Premises as Lessor may
deem necessary, subject to Lessee's reasonable security requirements. All such
activities shall be without abatement of rent or liability to Lessee. Lessor may
at any time place on the Premises any ordinary "For Sale" signs and Lessor may
during the last six (6) months of the term hereof place on the Premises an
ordinary "For Lease" signs. Lessee may at any time place on or about the
Premises any ordinary "For Sublease" sign. Lessor shall perform all such
inspections, improvements, alterations and repairs in a manner reasonably
intended to cause minimal disruption to Lessee's business activities in and use
of the Premises.
33. AUCTIONS. Lessee shall not conduct, nor permit to be conducted, any
auction upon the Premises without Lessor's prior written consent. Lessor shall
not be obligated to exercise any standard of reasonableness in determining
whether to permit an auction.
34. SIGNS. Except for ordinary "For Sublease" signs, Lessee shall not place
any sign upon the Premises without Lessor's prior written consent. Lessor shall
give such consent so long as the signs are in compliance with applicable city
ordinances and standards. All signs must comply with all Applicable
Requirements.
35. TERMINATION; MERGER. Unless specifically stated otherwise in writing by
Lessor, the voluntary or other surrender of this Lease by Lessee, the mutual
termination or cancellation hereof, or a termination hereof by Lessor for Breach
by Lessee, shall automatically terminate any sublease or lesser estate in the
Premises; provided, however, that Lessor may elect to continue any one or all
existing subtenancies. Lessor's failure within ten (10) days following any such
event to elect to the contrary by written notice to the holder of any such
lesser interest, shall constitute Lessor's election to have such event
constitute the termination of such interest.
36. CONSENTS. Except as otherwise provided herein, wherever in this Lease the
consent of a Party is required to an act by or for the other Party, such consent
shall not be unreasonably withheld or delayed. Lessor's actual reasonable costs
and expenses (including but not limited to architects', attorneys', engineers'
and other consultants' fees) incurred in the consideration of, or response to, a
request by Lessee for any Lessor consent, including but not limited to consents
to an assignment, a subletting or the presence or use of a Hazardous Substance,
shall be paid by Lessee upon receipt of an invoice and supporting documentation
therefor. Lessor's consent to any act, assignment or subletting shall not
constitute an acknowledgment that no Default or Breach by Lessee of this Lease
exists, nor shall such consent bye deemed a waiver of any then existing Default
or Breach, except as may be otherwise specifically stated in writing by Lessor
at the time of such consent. The failure to specify herein any particular
condition to Lessor's consent shall not preclude the imposition by Lessor at the
time of consent of such further or other conditions as are then reasonable with
reference to the particular matter for which consent is being given. In the
event that either party disagrees-with any determination made by the other
hereunder and reasonably requests the reasons for such determination, the
determining party shall furnish its reasons in writing and in reasonable detail
within ten (10) business days following such request.
PAGE 23.
37. OPTIONS.
37.1 DEFINITION. "Option" shall mean: (a) the right to extend the term of
or renew this Lease or to extend or renew any lease that Lessee has on other
property of Lessor; (b) the right of first refusal or first offer to lease
either the Premises or other property of Lessor; (c) the right to purchase or
the right of first refusal to purchase the Premises or other property of Lessor.
37.2 Multiple Options. In the event that Lessee has any multiple Options
to extend or renew this Lease, a later Option cannot be exercised unless the
Prior Options have been validly exercised.
37.3 Effect of Default on Options.
(a) Lessee shall have no right to exercise an Option: (i) during
the period commencing with the giving of any notice of Default and continuing
until said Default is cured, (ii) during the period of time any Rent is overdue
and unpaid (without regard to whether notice thereof is given Lessee), (iii)
during the time Lessee is in Breach of this Lease, or (iv) in the event that
Lessee has been given in good faith three (3) or more notices of separate
monetary Default, whether or not the Defaults are cured, during the twelve (12)
month period immediately preceding the exercise of the Option.
(b) The period of time within which an Option may be exercised
shall not be extended or enlarged by reason of Lessee's inability to exercise an
Option because of the provisions of Paragraph 39.4(a).
(c) An Option shall terminate and be of no further force or
effect, notwithstanding Lessee's due and timely exercise of the Option, if,
after such exercise and prior to the commencement of the extended term, (i)
Lessee fails to pay Rent for a period of thirty (30) days after such Rent
becomes due (without any necessity of Lessor to give notice thereof), (ii)
Lessor in good faith gives to Lessee three (3) or more notices of separate
monetary Default during any twelve (12) month period, whether or not the
Defaults are cured, or (iii) if Lessee commits a Breach of this Lease.
38. MULTIPLE BUILDINGS. If the Premises are a part of a group of buildings
controlled by Lessor, Lessee agrees that it will observe all reasonable rules
and regulations which Lessor may make from time to time for the management,
safety, and care of said properties; including the care and cleanliness of the
grounds and including the parking, loading and unloading of vehicles, and that
Lessee will pay its fair share of common expenses incurred in connection
therewith.
39. Security Measures. Lessee hereby acknowledges that the rental payable to
Lessor hereunder does not include the cost of guard service or other security
measures, and that Lessor shall have no obligation whatsoever to provide same.
Lessee assumes all responsibility for the protection of the Premises, Lessee,
its agents and invitees and their property from the acts of third parties.
40. Reservations. Lessor reserves to itself the right, from time to time, to
grant, without the consent or joinder of Lessee, such assessments, rights and
dedications that Lessor deems necessary, and to cause the recordation of parcel
maps and restrictions, so long as such
PAGE 24.
easements, rights, dedications, maps and restrictions do not unreasonably
interfere with the use of the Premises by Lessee. Lessee agrees to sign any
documents reasonably requested by Lessor to effectuate any such easement rights,
dedication, map or restrictions.
41. PERFORM-RICE UNDER PROTEST. If at any time a dispute shall arise as to any
amount or sum of money to be paid by one Party to the other under the provisions
hereof, the Party against whom the obligation to pay the money is asserted shall
have the right to make payment "under protest" and such payment shall not be
regarded as a voluntary payment and there shall survive the right on the part of
said Party to institute suit for recovery of such sum. If it shall be adjudged
that there was no legal obligation on the part of said Party to pay such sum or
any part thereof, said Party shall be entitled o recover such sum or so much
thereof as it was not legally required to pay.
42. AUTHORITY. If either Party hereto is a corporation, trust, limited
liability company, partnership, or similar entity, each individual executing
this Lease on behalf of such entity represents and warrants that he or she is
duly authorized to execute and deliver this Lease on its behalf. Each party
shall, within thirty (30) days after request, deliver to the other party
satisfactory evidence of such authority.
43. CONFLICT. Any conflict between the printed provisions of this Lease and
the typewritten or handwritten provisions shall be controlled by the typewritten
or handwritten provisions.
44. OFFER. Preparation of this Lease by either Party or their agent and
submission of same to the other Party shall not be deemed an offer to lease to
the other Party. This Lease is not intended to be binding until executed and
delivered by all Parties hereto.
45. AMENDMENTS. This Lease may be modified only in writing, signed by the
Parties in interest at the time of the modification. As long as they do not
materially change Lessee's obligations hereunder, Lessee agrees to make such
reasonable non-monetary modifications to this Lease as may be reasonably in
connection with the obtaining of normal financing or refinancing of the
Premises.
46. MULTIPLE PARTIES. If more that one person or entity is named herein as
either Lessor or Lessee, such multiple Parties shall have joint and several
responsibility to comply with the terms of this Lease.
47. MEDIATION AND ARBITRATION OF DISPUTES. An Addendum requiring the Mediation
and/or the Arbitration of all disputes between the Parties and/or Brokers
arising out of this Lease is (x) is not attached to this Lease.
LESSOR AND LESSEE HAVE CAREFULLY READ AND REVIEWED THIS LEASE AND EACH
TERM AND PROVISION CONTAINED HEREIN, AND BY THE EXECUTION OF THIS LEASE SHOW
THEIR INFORMED AND VOLUNTARY CONSENT THERETO. THE PARTIES HEREBY AGREE THAT, AT
THE TIME THIS LEASE IS EXECUTED, THE TERMS OF THIS LEASE ARE COMMERCIALLY
REASONABLE AND EFFECTUATE THE INTENT AND PURPOSE OF LESSOR AND LESSEE WITH
RESPECT TO THE PREMISES.
PAGE 25.
ATTENTION: NO REPRESENTATION OR RECOMMENDATION IS MADE BY THE BY ANY BROKER AS
TO THE LEGAL SUFFICIENCY, LEGAL EFFECT, OR TAX CONSEQUENCES OF THIS LEASE OR THE
TRANSACTION TO WHICH IT RELATES. THE PARTIES ARE URGED TO.
1. SEEK ADVICE OF COUNSEL AS TO THE LEGAL AND TAX CONSEQUENCES OF THIS LEASE.
2. RETAIN APPROPRIATE CONSULTANTS TO REVIEW AND INVESTIGATE THE CONDITION OF
THE PREMISES. SAID INVESTIGATION SHOULD INCLUDE BUT NOT BE LIMITED TO. THE
POSSIBLE PRESENCE OF HAZARDOUS SUBSTANCES, THE ZONING OF THE PREMISES, THE
STRUCTURAL INTEGRITY, THE CONDITION OF THE ROOF AND OPERATING SYSTEMS, AND THE
SUITABILITY OF THE PREMISES FOR LESSEE'S INTENDED USE.
The parties hereto have executed this Lease at the place and on the dates
specified above their respective signatures.
Executed at: Menlo Park, CA Executed at: Mountain View, CA
-------------------------- -------------------------
On: July 31, 1998 On: July 27, 1998
----------------------------------- ----------------------------------
By LESSOR: By LESSEE:
Xxxxx X. Xxxxxxx Intrabiotics Pharmaceuticals, Inc.
-------------------------------------- -------------------------------------
Xxxxxx Family Trust
-------------------------------------- -------------------------------------
By: /s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------- -------------------------------------
Name Printed: Xxxxx X. Xxxxxxx Name Printed: Xxxxxxx X. Xxxxxx
------------------------- ------------------------
Title: Trustee Title: President and CEO
-------------------------------- -------------------------------
By: /s/ Xxxxxx Xxxxxxx By: /s/ Xxxxx X. Xxxxxxxx
----------------------------------- ----------------------------------
Name Printed: Xxxxxx Xxxxxxx Name Printed: Xxxxx X. Xxxxxxxx
------------------------- ------------------------
Title: Trustee Title: Vice President & CFO
-------------------------------- -------------------------------
Address: 0000 Xxxxxxxxxx Xxxxx Address: 0000 Xxxxx Xxxxx Xxx.
------------------------------ -----------------------------
Xxxxx Xxxx, XX 00000 Mountain View CA
-------------------------------------- -------------------------------------
Telephone: (000) 000-0000 Telephone: (000) 000-0000
---------------------------- ---------------------------
Facsimile: Facsimile: (000) 000-0000
---------------------------- ---------------------------
Federal ID No: ###-##-#### Federal ID No: 00-0000000
------------------------ -----------------------
PAGE 26.
ADDENDUM TO
STANDARD INDUSTRIAL/COMMERCIAL
SINGLE-TENANT LEASE -- NET
Addendum to the Standard Industrial Commercial Single-Lessee Lease dated
_________________, 1998, by and between Xxxxx X. Xxxxxx and Xxxxxx Xxxxxx Family
Trust, as Lessor, and IntraBiotics Pharmaceuticals, Inc., a Delaware
corporation, as Lessee.
1. BASS RENT SCHEDULE: The following, monthly Base Rent Schedule shall
apply during the term of the Lease:
Months 01-12: $35,100.00
Months 13-24: $35,540.00
Months 25-36: $37,980.00
Months 37-48: $39,420.00
Months 49-60: $41,040.00
Months 60-end of term: $37,346.40
2. TENANT IMPROVEMENT ALLOWANCE: Included in the Base Rent, Lessor
shall provide to Lessee an Initial Interior Improvement Allowance of $270,000.00
in accordance with Interior Improvement Agreement (Exhibit "B"). Lessee shall
install and construct the "Tenant Improvements" (as defined in Exhibit "B"
hereto) according to the terms, conditions, criteria and provisions set forth in
said Exhibit "B"." Lessor and Lessee hereby agree to and shall be bound by the
terms, conditions and provisions of Exhibit "B".
3. COMPLIANCE WITH AMERICANS WITH DISABILITIES ACT: Lessor hereby
represents that the rest rooms that are part of the building shell as of the
date hereof are in compliance with the Americans with Disabilities Act. Lessor,
at Lessor's sole cost and expense, shall be responsible for compliance with ADA
regulations regarding the path of travel from parking area to the main entrance
of the Premises upon execution of the Lease. Except as aforesaid, Lessee, at
Lessee's sole cost and expense, shall be responsible for compliance with all ADA
regulations regarding the interior of the Premises occupied by Lessee.
4. ASSIGNMENT OR SUBLEASE:
A. Lessor's Consent Required: Lessee shall not voluntarily or by
operation of law assign, mortgage, sublet, or otherwise transfer or encumber all
or any part of Lessee's interest in this Lease or in the Premises without
Lessor's prior written consent. Lessor shall not unreasonably withhold its
consent to an assignment or sublet, provided the proposed assignee or sublessee
is reasonably satisfactory to Lessor as to credit and will occupy and use the
Premises for the same purposes specified in Paragraph 1. Any attempted
assignment, transfer, mortgage, encumbrance or subletting without such consent
shall constitute a Default of this Lease and be voidable at Lessor's election.
Lessee shall pay to Lessor Five Hundred Dollars ($500) as compensation for
expenses in connection with any request by Lessee for Lessor's consent, but only
if Lessee proposes an assignment or sublease of the entire Premises.
Additionally, Lessee
PAGE 1.
shall have the right to withdraw its proposed assignment or' sublease if Lessor
notifies Less of its desire to recapture the Premises.
Whether or not Lessor consents to any assignment or subletting, no such
assignment or subletting shall (1) be effective without the express written
assumption by such assignee or sublessee of the obligations of Lessee under this
Lease, (2) release Lessee of any obligations hereunder, or (3) alter the primary
liability of Lessee for the payment of Rent and for the performance of any other
obligations to be performed by Lessee.
Lessor may accept Rent or performance of Lessee's obligations from any
person other than Lessee pending approval or disapproval of such an assignment
or sublease. Neither a delay in the approval or disapproval of such assignment
or subleasin9 nor the acceptance of Rent or performance shall constitute a
waiver or estoppel of Lessor's right to exercise its remedies for Lessee's
default or breach.
Lessor's consent to any assignment or subletting shall not constitute a
consent to any subsequent assignment or subletting.
In the event of any default or breach by Lessee, any sublessee or any
assignee, Lessor may proceed directly against Lessee, any such sublessee or
assignee or anyone else responsible for the performance of Lessee's obligations
under this Lease without first exhaustin9 Lessor's remedy against any other
person or entity responsible therefor to Lessor, or any security held by Lessor.
Any assignee of or sublessee under this Lease shall by reason of
accepting such assignment or entering into such sublease be deemed to have
assumed and agreed to conform and comply with each and every term, covenant and
condition and obligation herein to be observed or performed by Lessee during the
term of said assignment or sublease, other than such obligations as are contrary
to or inconsistent with the provisions of an assignment or sublease to which
Lessor has specifically consented in writin9.
Notwithstanding the foregoing and subject to any proposed assignee's
demonstrating to Lessor's reasonable satisfaction either that (1) that said
proposed assignee's net worth at the time of such assignment is equal to or
greater than Lessee's then net worth or (2) in each of the three (3) years prior
to said proposed assignment, said proposed assignee's fund balance or retained
earnings were equal to or greater than three (31 times the then-current Rent
hereunder, Lessee may assign this Lease or sublease the Premises without
Lessor's consent, and the provisions of this Section 4 of this Addendum shall
not apply to any transfer or assignment of this Lease, the Premises or any part
thereof (i) to any parent or subsidiary of Lessee, to any parent or subsidiary
of a parent or subsidiary of Lessee or to any other affiliate of Lessee, (ii) to
any entity which merges or consolidates with or acquires Lessee, or (iii) to any
entity which acquires all or substantially all of the assets of Lessee. As used
herein, the term "affiliate of Lessee" shall mean and refer to any entity that
controls, is controlled by or is under common control with Lessee.
B. NO RELEASE OF LESSEE: Regardless of Lessor's consent, no
subletting or assignment shall release Lessee of Lessee's obligation, or alter
the primary liability of Lessee to pay the Rent and to perform all other
obligations to be performed by Lessee hereunder. The
PAGE 2.
acceptance of Rent by Lessor from any other person shall not be deemed to be a
waiver by Lessor of any provision hereof. Consent to one assignment or
subletting shall not be deemed consent to any subsequent assignment or
subletting.
C. RECAPTURE OF PREMISES: In connection with any proposed
assignment or sublease, Lessee shall submit to Lessor in writing (i) the name of
the proposed assignee or sublessee, (ii) such information as to its financial
responsibility and standing as Lessor may reasonably require, and (iii) all of
the terms and conditions upon which the proposed assignment or subletting is to
be made. Lessor shall have an option to cancel and terminate this Lease with
respect to such portion of the Premises that is to be assigned or sublet. Lessor
may exercise said option in writing within twenty (20) days after its receipt
from Lessee of such request to assign or sublease the Premises. If Lessor shall
exercise its option, Lessee shall surrender possession of the entire Premises,
or the portion thereof which is the subject of the option. If this Lease is
cancelled as to a portion of the Premises only, the Rent after the date of
cancellation shall be reduced in the proportion that the floor area of the
cancelled portion bears to the total floor area of the Premises.
D. EXCESS SUBLEASE RENTAL: If, on account of or in connection
with any assignment or sublease, Lessee receives rent or other consideration in
excess of the Rent called for hereunder, or in the case of the sublease of a
portion of the Premises, in excess of the pro rata Rent based on the floor area
of such portion, after appropriate adjustments to assure all other payments
called for hereunder are appropriately taken into account, Lessee shall pay to
Lessor, after first deducting all costs associated with the Subleasing of the
Premises including but not limited to legal fees, leasing commissions, Lessee
improvements, etc., fifty percent (50%) of the excess of such payment of rent or
other consideration received by Lessee promptly after its receipt.
5. HAZARDOUS MATERIALS:
A. NO HAZARDOUS MATERIALS ON LEASED PREMISES: In absence of prior
written consent therefor by Lessor, Lessee shall not use, generate, store or
dispose of, or allow others to use, generate, store or dispose of, on or about
the Premises any substance, material or waste that is or becomes designated,
classified or regulated as "toxic" or "hazardous" or a "pollutant" (including,
but not limited to, asbestos, lead-based paint, petroleum or petroleum products)
or that is or becomes similarly designated, classified or regulated under any
Hazardous Materials law. Notwithstanding the foregoing, however, Lessee shall be
entitled to store and use on or about the Premises reasonable quantities of
materials commonly used for cleaning purposes in business offices so long as
such use and storage complies with all Hazardous Materials Laws. For purposes of
this Lease, "Hazardous Materials Laws" means any law, statute, ordinance or
regulation pertaining to health, industrial hygiene or the environment
including, but not limited to, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 ("CERCLA"), Resources Conservation and
Recovery Act of 1976 ("RCRA"), or any other federal, state, county or municipal
law, ordinance or regulation. Lessee shall, at its sole cost and expense, comply
with all Hazardous Materials Laws during the term hereof. Notwithstanding the
foregoing, Lessee shall have no obligations with respect to Hazardous Materials
or other materials on, in or under the Premises (including the parking and
landscaped areas) as of the Commencement date ("Pre-existing Hazardous
Materials") except to the extent the acts or
PAGE 3.
omissions of Lessee, Lessee's employees, officers, directors, agents and
contractors exacerbate the nature or extent of such Pre-existing Hazardous
Materials. Except to the extent of such exacerbation, Pre-existing Hazardous
Materials shall be entirely the responsibility of Lessor and no costs or
expenses incurred in connection therewith shall be Rent or otherwise
reimbursable by Lessee.
B. LESSEE'S COMPLIANCE: In the event of any release by Lessee, or
Lessee's employees, officers, directors or agents, on or into the Premises or
into the soil or groundwater under the Premises. of any Hazardous Materials
during the term, Lessee agrees to comply, at its sole cost and expense, with all
laws, regulations, ordinances and orders of any federal, state or local agency
relating to the monitoring or remediation of such Hazardous Materials.
C. LESSEE LIABILITY FOR HAZARDOUS MATERIALS: Lessee shall be
liable to Lessor for any and all damages caused by Lessee's breach of the
foregoing covenants. Except as provided in Subsection 7.G, below, Lessor shall
not be liable for any claims, damages or losses due to the effects of Hazardous
Materials on the Premises. This provision shall survive the expiration or
earlier termination of the Lease.
D. NOTIFICATION OF COMMUNICATIONS: Lessor and Lessee each agree
promptly to notify the other party of, and provide copies of, any communication
received from any governmental entity concerning Hazardous Materials or the
violation or alleged violation of Hazardous Materials Laws that relate to the
Premises.
E. TESTING: If Lessor requires testing to ascertain whether there
has been any violation of Hazardous Materials Laws on the Premises, then, upon
prior written Notice to Lessee, Lessor may require any such testing that is then
customarily used for that purpose. Such testing shall be performed at Lessor's
expense if Lessee is not in violation of any Hazardous Materials Laws or in
breach of this Section 5 of this Addendum.
F. LESSEE INDEMNIFICATION OF LESSOR FOR HAZARDOUS MATERIALS:
Except as provided in Subsection 7.G, below, Lessee shall forever indemnify,
defend, hold and save Lessor free and harmless of, from and against any and all
liabilities, remediation costs, investigation costs, claims, damages, injuries,
losses, costs, fines, judgments, causes of action and expenses whatsoever
incurred in connection with or arising in any way out of the release, treatment,
storage, use or disposal of Hazardous Materials on the Premises (except
Pre-existing Hazardous Materials) by Lessee or Lessee's employees, officers,
directors and agents, except those arising solely by reason of the active
negligence or willful misconduct of Lessor, its agents or employees.
X. XXXXXX'X INDEMNIFICATION OF LESSEE FOR PRE-EXISTING HAZARDOUS
MATERIALS: Except as provided in Subsection 7.F, above, Lessor shall forever
indemnify, defend, and hold Lessee harmless from and against any and all
liabilities, remediation costs, investigation costs, claims, damages, injuries,
losses, costs, fines, judgments, causes of action and expenses whatsoever
incurred in connection with or arising in any way out of the release, treatment,
storage, use or disposal of Pre-existing Hazardous Materials by Lessor, its
agents, employees, invitees or contractors. Except as specifically set forth
herein, Lessor does not indemnify Lessee in connection with Hazardous Materials
on or about the Premises or off-site.
PAGE 4.
H. NO RELEASE OF THIRD PARTIES: Nothing contained herein shall be
deemed to expand, limit, or otherwise modify or affect Lessee's or Lessor's
right to pursue any other person or entity for any claim or for any cause that
Lessee may have against any other person or entity, or under Hazardous Materials
Laws.
6. INDEMNITY: As a material part of the consideration to be rendered to
Lessor, Lessee hereby waives all claims against Lessor for damages to foods,
wares and merchandise, and all other personal property in, upon or about said
Premises and for injuries to persons in or about said Premises, from any cause
arising at any time and to the fullest extent permitted by law. Provided Lessee
is timely notified of same, Lessee shall indemnify, protect, defend and hold
Lessor and Lessor's agents, partners and lenders, if any, exempt and harmless
from and against any and all claims, loss of rents and/or damages, liens,
judgments, penalties, attorneys' and consultants' fees, expenses and/or
liabilities or injury to any person, or to the goods, waters and merchandise and
all other personal property of any person, arising from, involving or in
connection with the use and/or occupancy of the Premises, Building, and/or
Project by Lessee, its employees, contractors, agents and invitees, except to
the extent the same are caused by the gross negligence or intentional misconduct
of Lessor or Lessor's agents, employees or contractors, or Lessor's breach of
this Lease. If any action or proceeding is brought against Lessor by reason of
any of the foregoing matters, Lessee shall upon notice defend the same at
Lessee's sole cost and expense by counsel reasonably satisfactory to Lessor, and
Lessor shall cooperate with Lessee in such defense. Lessor need not have first
paid any such claim in order to be so defended or indemnified.
7. OPTION TO EXTEND THE LEASE TERM:
X. XXXXX AND EXERCISE OF OPTION: Lessor grants to Lessee, upon and
subject to the terms and conditions set forth in this paragraph, one (1) option
(the "Option") to extend the Lease Term for an additional term (the "Option
Term"). The Option Term shall be for a period of three (3) years. Said Option
shall be exercised, if at all, by written notice to Lessor no earlier than the
date that is twelve (12) months prior to the Expiration Date but no later than
the date that is seven (7) months prior to the Expiration Date. If Lessee
exercises the Option, each of the terms, covenants and conditions of this Lease
except this paragraph shall apply during the Option Term as though the
expiration date of the Option Term was the date originally set forth herein as
the expiration date of the Option Term was the date originally set forth herein
as the Expiration Date, provided that the Base Monthly Rent to be paid by Lessee
during the Option Term shall be the greater of (i) the Base Monthly Rent
applicable to the period immediately prior to the commencement of the Option
Term or (ii) the Fair Market Rental, as hereinafter defined, for the Premises
for the Option Term. Anything contained herein to the contrary notwithstanding,
if Lessee is in monetary or material non-monetary default under any of the
terms, covenants or conditions of this Lease either at the time Lessee exercises
the Option or any time thereafter prior to the commencement date of the Option
Term, Lessor shall have, in addition to all of Lessor's other rights and
remedies provided in this Lease, the right to terminate the Option upon notice
to Lessee, in which event the expiration date of this Lease shall be and remain
the Expiration Date. As used herein, the term "Fair Market Rental" for the
Premises shall mean the rental and all other monetary payments, including any
escalations and adjustments thereto (including, without limitation, Consumer
Price Index) then being obtained for new leases of space comparable in age and
quality to the Premises in the locality of the Building that Lessor could obtain
during the
PAGE 5.
Option Term from a third party desiring to lease the Premises for the Option
Term based upon the current use and other potential uses of the Premises. Fair
Market Rental shall take into account that (A) that Lessee in occupancy of the
Premises and making functional use of the space in its then-existing condition,
and (B) that no brokerage commission is payable. Fair Market Rental shall not
include any value attributable to the Lessee Improvements in the Premises paid
for by Lessee.
B. DETERMINATION OF FAIR MARKET RENTAL: If Lessee exercises the
Option, Lessor shall send to Lessee a notice setting forth Lessor's good faith
determination of Fair Market Rental for the Premises for the Option Term, on or
before the date that is twelve (12) months prior to the Expiration Date. If
Lessee disputes Lessor's determination of the Fair Market Rental for the Option
Term, Lessee shall, within thirty (30) days after the date of Lessor's notice
setting forth the Fair Market Rental for the Option Term, send to Lessor a
notice stating that Lessee either (i) elects to terminate its exercise of the
Option, in which even the Option shall lapse and this Lease shall terminate oh
the Expiration Date, or (ii) disagrees with Lessor's determination of Fair
Market Rental for the Option Term and elects to resolve the disagreement as
provided in Subsection 7.C, below. If Lessee does not send to Lessor a notice as
provided in the previous sentence, Lessor's determination of the Fair Market
Rental shall be the basis for determining the Base Monthly Rent to be paid by
Lessee hereunder during the Option Term. If Lessee elects to resolve the
disagreement as provided in Subsection 7.C, below, and such procedures shall not
have been concluded prior to the commencement date of the Option Term, Lessee
shall pay as Base Monthly Rent to Lessor the Fair Market Rental as determined by
Lessor in the manner provided above. If the amount of Fair Market Rental as
finally determined pursuant to Subsection 7.C, below, is greater than Lessor's
determination, Lessee shall pay to Lessor the difference between the amount paid
by Lessee and the Fair Market Rental as so determined in Subsection 7.C, below,
within thirty (30) days after the determination. If the Fair Market Rental as
finally determined in Subsection 7.C, below, is less than Lessor's
determination, the difference between the amount paid by Lessee and the Fair
Market Rental as so determined in Subsection 7.C, below, shall be credited
against the next installments of rent due from Lessee to Lessor hereunder.
C. RESOLUTION OF A DISAGREEMENT OVER THE FAIR MARKET RENTAL: Any
disagreement regarding the Fair Market Rental shall be resolved as follows:
(i) Within thirty (30) days after Lessee's response to
Lessor's notice to Lessee of the Fair Market Rental, Lessor and Lessee shall
meet no less than two (2) times, at mutually agreeable time and place, to
attempt to resolve any such disagreement.
(ii) If within the thirty (30) day period referred to
Subsection 7.C.(i), above, Lessor and Lessee cannot reach agreement as to the
Fair Market Rental, they shall each select one appraiser to determine the Fair
Market Rental. Each such appraiser shall arrive at a determination of the Fair
Market Rental and submit their conclusions to Lessor and Lessee within thirty
(30) days after the expiration of the thirty (30) day consultation period
described Subsection 7.C.(i), above.
(iii) If only one appraisal is submitted within the
requisite time period, it shall be deemed to be the Fair Market Rental. If both
appraisals are submitted within such time
PAGE 6.
period, and if the two appraisals so submitted differ by less than ten percent
(10%) of the higher of the two, the average of the two shall be the Fair Market
Rental. If the two appraisals differ by more than ten percent (10%) of the
higher of the two, then the two appraisers shall immediately select a third
appraiser who shall within thirty (30) days after his or her selection make a
determination of the Fair Market Rental and submit such determination to Lessor
and Lessee. This third appraisal will then be averaged with the closer of the
two previous appraisals and the result shall be the Fair Market Rental.
(iv) All appraisers specified pursuant to this paragraph
shall be members of the American Institute of Real Estate Appraisers with not
less than ten (10) years experience appraising office and industrial properties
in the Santa Xxxxx Valley. Each party shall pay the cost of the appraiser
selected by such party and one-half of the cost of the third appraiser.
8. SERVICE CONTRACT: In addition to Section 7.1 of the Lease, Lessee
shall also be responsible, at its sole cost and expense, for the preventative
maintenance of the membrane of the roof, which responsibility shall be deemed
properly discharged if (a) Lessee contracts with a licensed roof contractor who
is reasonably satisfactory to both Lessee and Lessor, at Lessor's sole cost, to
inspect the roof membrane at least every six (6) months, with the first
inspection due the sixty (6th) month after the Commencement Date, and (b) Lessee
performs, at Lessee's sole cost, all preventive maintenance recommendations made
by such contractor with in a reasonable time after such recommendations are
made. Such preventive maintenance might include acts such as clearing storm
gutters and drains, removing debris from the roof membrane, trimming trees
overhanging the roof membrane, applying coating materials to seal roof
penetrations, repairing blisters, and other routine measures. Lessee shall
provide to Lessor a copy of such preventive maintenance contract and paid
invoices for the recommended work. Lessee agrees, at its expense, to water,
preventive maintenance contract and paid invoices for the recommended work.
Lessee agrees, at its expense, to water, maintain and replace, when necessary,
any shrubbery and landscaping.
ACKNOWLEDGED AND APPROVED: ACKNOWLEDGED AND APPROVED:
By Lessor: By Lessee:
Xxxxx X. Xxxxxx and Xxxxxx IntraBiotics Pharmaceuticals,
Xxxxxx Family Trust Inc., a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------- -----------------------------------
Name: Name:
Printed: Xxxxx X. Xxxxxxx Printed: Xxxxxxx X. Xxxxxx
------------------------------ ------------------------------
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------
Name:
Printed: Xxxxx X. Xxxxxxxx
------------------------------
PAGE 7.
EXHIBIT B
INTERIOR IMPROVEMENT AGREEMENT
THIS IMPROVEMENT AGREEMENT is made part of that Lease dated March 26,
1998, (the "Lease") by and between Xxxxx X. Xxxxxx and Xxxxxx Xxxxxx Family
Trust, ("Lessor"), and IntraBiotics Pharmaceuticals, Inc. ("Lessee"). Lessor and
Lessee
agree that the following terms are part of the Lease:
1. PURPOSE OF IMPROVEMENT AGREEMENT: The purpose of this Improvement
Agreement is to set forth the rights and obligations of Lessor and Lessee
with respect to the construction of Interior Improvements within the
Premises.
2. DEFINITIONS: As used in this Interior Improvement Agreement, the following
terms shall have the following meanings, and terms which are not defined
below, but which are defined in the Lease and which are used in its
Interior Improvement Agreement, shall have the meanings ascribed to them
by the Lease:
A. APPROVED SPECIFICATIONS: The term "Approved Specifications" shall
mean those specifications for the Interior Improvements to be
constructed by Lessor which are described by Exhibit "D" to the
Lease.
B. INTERIOR IMPROVEMENTS: The term "Interior Improvements" shall mean
all interior improvements to be constructed by Lessor in accordance
with the Approved Specifications (e.g., HVAC equipment and
distribution, transformer and power distribution, partitions, floor,
wall, and window covering, lighting fixtures).
C. INTERIOR IMPROVEMENT COSTS: The term "Interior Improvement Costs"
shall mean the following: (i) the total amount due pursuant to the
general construction contract entered into by Lessor to construct
the Interior Improvements, including costs for any and all building
code compliance; (ii) the cost of all governmental approvals
required as a condition to the construction of the Interior
Improvements (including all construction taxes imposed by the City
of Mountain View ) in connection with issuance of a building permit
for the Interior Improvements; (iii) all utility connection or use
fees; (iv) fees or architects or engineers for services rendered in
connection with the design and construction of the Interior
Improvements; and (v) the cost of payment and performance bonds
obtained by Lessor or Prime Contractor or assure completion of the
Interior Improvement.
D. SUBSTANTIAL COMPLETION AND SUBSTANTIALLY COMPLETE: The terms
"Substantial Completion" and "Substantially Complete" shall each
mean the date when all of the following have occurred with respect
to Interior Improvements in question: (i) the construction of the
Interior Improvements in question has been substantially completed
in accordance with the requirements of this Lease; (ii) the
architect responsible for preparing the plans shall have executed a
certificate or statement representing that the Interior Improvements
in question have been substantially completed in accordance with the
plans and specifications therefor;, and (iii) the Building
Department of the City of Mountain View has completed its final
PAGE 1.
inspection of such Improvements and has "signed off" the building
inspection. card approving such work as complete.
3. SCHEDULE OF PERFORMANCE: Set forth in this paragraph is a schedule of
certain critical dates relating to Lessor's and Lessee's respective
obligations regarding the construction of the Interior Improvements (the
"Schedule of Performance"). Lessor and Lessee shall each be obligated to
use reasonable efforts to perform their respective obligations within the
time periods set forth in the Schedule of Performance and elsewhere in
this Interior Improvement Agreement. The Schedule of Performance is as
follows:
--------------------------------------------------------------------------------------------------
ACTION ITEMS DUE DATE RESPONSIBLE PARTY
--------------------------------------------------------------------------------------------------
A. Delivery to Lessor of Lessee
Lessee's Interior
Requirements
--------------------------------------------------------------------------------------------------
B. Delivery to Lessee of Lessor
Preliminary Interior
Improvement Plans
--------------------------------------------------------------------------------------------------
C. Approval by Lessee of Within two (2) business days Lessee
Preliminary Interior Plans after Lessee receives
Preliminary Interior Plans.
--------------------------------------------------------------------------------------------------
D. Delivery to Lessee of final Within three (3) weeks after Lessor
Interior Plans approval of the Preliminary
Interior Plans
--------------------------------------------------------------------------------------------------
E. Approval by Lessee of Within two (2) business days Lessee
Final Interior Plans after Lessee receives Final
Interior Plans
--------------------------------------------------------------------------------------------------
F. Commencement of Within five (5) days after Lessor
construction of Interior issuance of all necessary
Improvement governmental approvals
--------------------------------------------------------------------------------------------------
G. Substantial Completion of Within six (6) weeks after Lessor
Interior Improvements issuance of building permit
for the Interior Improvements
--------------------------------------------------------------------------------------------------
A. Lessee shall either approve such plans or notify Lessor in writing
of its specific objections to the Preliminary Interior Plans. If
Lessee so objects, Lessor shall revise the Preliminary Interior
Plans to address such objections in a manner consistent with the
parameters for the Interior Improvements set forth in its
Improvement Agreement and the Approved Specifications and shall
resubmit such revised preliminary Interior Plans as soon as
reasonably practicable to Lessee for its approval. When such revised
Preliminary Interior Plans are resubmitted to Lessee, it shall
either approve such plans or notify Lessor of any further objections
in writing within two (2) business days after receipt thereof. If
Lessee has further objections to the revised preliminary Interior
Plans, the parties shall meet and confer to develop Preliminary
Interior Plans that are acceptable to both Lessor and Lessee within
five (5) business days after Lessee has notified Lessor of its
second set of objections. In the event Lessee and Lessor d9 not
PAGE 2.
resolve all of Lessee's objections within such five (5) business
day period, Lessor and Lessee shall immediately cause Lessor's
architect to meet and confer with Lessee's architect or construction
consultant, who shall apply the standards set forth in this
Improvement Agreement to resolve Lessee's objections and'
incorporate such resolution into the Preliminary Interior Plans,
which process Lessor and Lessee shall cause to be completed within
five (5) business days after the conclusion of the five (5) business
day period referred to in the immediately preceding sentence.
B. DEVELOPMENT AND APPROVAL OF FINAL INTERIOR PLANS: Once the
Preliminary Interior Plans have been approved by Lessor and Lessee
(including all changes made to resolve Lessee's objections approved
by Lessor's architect and Lessee's architect or construction
consultant pursuant to subparagraph 4A), Lessor shall complete and
submit to Lessee for its approval final working drawings for the
Interior Improvements by the due date specified in the Schedule of
Performance. Lessee shall approve the final plans for the Interior
Improvements or notify Lessor in writing of its specific objections
by the due date specified in the Schedule of Performance. If Lessee
so objects, the parties shall confer and reach agreement upon final
working drawings for the Interior Improvements within five (5)
business days after Lessee has notified Lessor of its objections. In
the event Lessee and Lessor do not resolve all of Lessee's
objections within such five (5) business day period, Lessor and
Lessee shall immediately cause Lessor's architect to meet and confer
with Lessee's architect or construction consultant, who shall apply
the standards set forth in the Improvement Agreement to resolve
Lessee's objections and incorporate such resolution into the Final
Interior Plans, which process Lessor and Lessee shall cause to be
completed within five (5) business days after the conclusion of the
five (5) business day period referred to in the immediately
preceding sentence. The final working drawings so approved by Lessor
and Lessee (including all changes made to resolve Lessee's
objections approved by Lessor's architect and Lessee's architect or
construction consultant) are referred to herein as the "Final
Interior Plans".
C. BUILDING PERMIT: As soon as the Final Interior Plans have been
approved by "Lessor and Lessee, Lessor shall apply for a building
permit for the Interior Improvements, and shall diligently prosecute
to completion such approval process.
D. CONSTRUCTION CONTRACT: Lessor and Lessee shall cooperate to cause
the Interior Improvements to be constructed by a general contractor
who is engaged by Lessor in accordance with the procedures et forth
in subparagraph 4D (1) hereof.
1) The job constructing the Interior Improvements shall be
offered for "competitive bid", on a fixed price basis, to two
(2) general contractors selected by Lessor and approved by
Tenant. The construction contact shall be awarded to the
bidder submitting the lowest bid for the job. Lessor shall
submit to Lessee a list of general contractors acceptable to
Lessor to whom the job may be bid, and Lessee shall notify
Lessor within three (3)
PAGE 3.
business days after receipt of such list of its objection to
any proposed contractor. Lessee's failure to object within
such period of time shall be deemed to be its approval of all
bidders on the list so submitted by Lessor. If the lowest bid
resulting from such competitive bidding process indicates that
the Interior Improvement Costs will exceed Two Hundred Seventy
Thousand Dollars and 00/100tbs ($270,000.00), Lessor shall
promptly notify Lessee, in writing, to that effect, and Lessee
shall have the right to propose modifications to the Final
Interior Plans within five (5) business days after Lessee's
receipt of Lessor's notice, subject to Lessors approval of
such changes, for the purpose of reducing the Interior
Improvement costs. Such revision of the final Interior Plans
shall be completed as expeditiously as possible; provided,
however, that the job shall nonetheless be awarded to the low
bidder whose price shall be adjusted based' upon the changes
requested by Lessee and approved by Lessor made to the Final
Interior Plans.
2) Lessor and Lessee shall use their best efforts to approve the
general contractor and all subcontractors so that the
construction contract may be executed as soon as possible.
E. COMMENCEMENT OF INTERIOR IMPROVEMENTS: On or before the due date
specified in the Schedule of Performance, Lessor shall commence
construction for the Inter/or Improvements and shall diligently
prosecute such construction to completion, using all reasonable
efforts to achieve Substantial Completion of the Interior
Improvements by the due date specified in the Schedule of
Performance.
4. PAYMENT OF INTERIOR IMPROVEMENT COSTS: Lessor and Lessee shall have the
following obligations with respect to the payment of Interior Improvement
Costs:
A. Lessor shall be obligated to pay an amount equal to the Lessee
Improvement Allowance as provided for in Paragraph 50 of the First
Addendum to Lease for the Payment of Interior Improvement Costs. If
the total of Interior Improvement Costs exceeds the amount of
Lessor's required contribution, Lessee shall be obligated to pay the
entire amount of such excess. If Lessee becomes obligated to
contribute toward paying Interior Improvement Costs pursuant to this
subparagraph 5A, then Lessor shall estimate the amount of such
excess prior to commencing construction of the Interior Improvements
and Lessee shall pay to Lessor, or at Lessor's option to the general
contractor, a proportionate share of each progress payment due to
the general contractor which bears the same relationship to the
total amount of the progress payment in question as the amount
Lessee is obligated to contribute to the payment of Interior
Improvement Costs bears to the total estimated Interior Improvement
Costs. Lessee shall pay Lessee's share of any progress payment to
Lessor within five (5) business days after receipt of a statement
therefor from Lessor. At the time the final accounting is rendered
by Lessor pursuant to subparagraph 5C hereof, there shall be an
adjustment between Lessor and Lessee such that each shall only be
required to contribute to the payment of Interior Improvement Costs
in accordance with the obligations set
PAGE 4.
forth in this subparagraph 5A, which adjustment shall be made within
five (5) days after Lessor notifies Lessee of the required
adjustment. If Lessee is required to make a payment to Lessor,
Lessee shall make such payment even if Lessee elects to audit the
statement submitted by Lessor pursuant to subparagraph 5C. In the
event Lessee's audit discloses that an overpayment or underpayment
was made by Lessee, there shall be an adjustment between Lessor and
Lessee as soon as reasonably practicable such that each shall only
be required to contribute to the payment of costs in accordance with
the obligations set forth in this subparagraph 5A.
B. If Lessee falls to pay any amount when due pursuant to this
paragraph 5, then (i) Lessor may (but without the obligation to do
so) advance such funds on Lessee's behalf, and Lessee .shall be
obligated to reimburse Lessor for the amount of funds so advanced on
its behalf, and (ii) Lessee shall be liable for the payment of a
late charge and interest in the same manner as if Lessee had failed
to pay Base Monthly Rent when due as described in paragraph 3.4 of
the Lease. Any amounts paid to Lessor by Lessee pursuant to this
subparagraph shall be held by Lessor as Lessee's agent, for
disbursal to the general contractor in payment for work costing in
excess of Lessor's required contribution.
C. When the Interior Improvements are Substantially Completed, Lessor
shall submit to Lessee a final and detailed accounting of all
Interior Improvement Costs paid by Lessor, certified as true and
correct by Lessor's financial officers. Lessee shall have the right
to audit the books, records, and supporting documents of Lessor to
the extent necessary to determine the accuracy of such accounting
during normal business hours after giving Lessor at least two (2)
days prior written notice. Lessee shall bear the cost of such audit,
unless such audit discloses that Lessor has overstated the total of
such costs by more than two percent .(2%) of the actual amount of
such costs, in which event Lessor shall pay the cost of Lessee's
audit. Any such audit must be conducted, if at all, within ninety
(90) days after Lessor delivers such accounting to Lessee.
5. CHARGES TO APPROVED PLANS: Once the Final Interior Plans have been
approved by Lessor and Lessee, neither shall have the right to order extra
work or change orders with respect to the construction of the Interior
Improvements without the prior written consent of the other. All extra
work or change orders requested by either Lessor or Lessee shall he made
in writing, shall specify any added or reduced cost and/or construction
time resulting therefrom, and shall become effective and a part of the
Final Interior Plans once approved in writing by both parties. If a change
order requested by Lessee results in an increase in the cost of
constructing the Interior Improvements, Lessee shall pay the amount of
such increase caused by the change order requested by Lessee at the time
the change order is approved by both Lessor and Lessee if and to the
extent such change order causes the Interior Improvement Costs to exceed
Lessor's required contribution thereto described in subparagraph SA.
6. DELIVERY OF PUNCH LIST: As soon as the Interior Improvements are
Substantially Completed, Lessor and Lessee shall together walk through the
Premises and inspect all
PAGE 5.
Interior Improvements so completed, using reasonable efforts to discover
all uncompleted or defective construction in the Interior Improvements.
After such inspection has been completed, each party shall sign a Punch
List, which shall include a list of all "punch list" items which the
parties agree are to be corrected by Lessor. Lessor shall use reasonable
efforts to complete and/or repair such "punch list" items within thirty
(30) days after executing the punch list. Lessee's taking possession of
any part of the Premises shall be deemed to be an acceptance by Lessee of
Lessor's work improvement in such part as complete and in accordance with
the terms of the Lease except for the punch list items noted and latent
defects that could not reasonably have been discovered by Lessee during
its inspection of the Interior Improvements prior to completion of the
punch list. Notwithstanding anything contained herein, Lessee's obligation
to pay the Base Monthly Rent and Additional Rent shall commence as
provided in the Lease, regardless of whether Lessee completes such
inspection or executes such punch list.
7. STANDARD OF CONSTRUCTION AND WARRANTY: Lessor hereby warrants that the
Interior Improvements shall be constructed substantially in accordance
with the Final Interior Plans (as modified by .change orders approved by
Lessor and Lessee), All Private Restrictions and all Laws, in a good and
workmanlike manner, and all materials and equipment furnished shall
conform to such final plans and shall be new and otherwise of good
quality. The foregoing warranty shall be subject to, and limited by the
following:
A. Once Lessor is notified in writing of any breach of the
above-described warranty, Lessor shall promptly commence the cure of
such breach and complete such cure with diligence at Lessor's sole
cost and expense.
X. Xxxxxx'x liability pursuant to such warranty shall be limited to the
cost of' correcting the defect or other matter in question. In no
event shall Lessor be liable to Lessee for any damages or liability
incurred by Lessee as a result of such defect or other matter
including without limitation damages resulting form any loss of
business by Lessee or other consequential damages.
C. Notwithstanding anything contained herein, Lessor shall not be
liable for any defect in design, construction, or equipment
furnished which is discovered and of which Lessor receives written
notice from Lessee after the first (0.xx) anniversary of the
recordation of a notice of completion for the work of improvement
affected by the defect.
D. With respect to defects for which Lessor is not responsible pursuant
to xxxxxxxxxxxx 0X, Xxxxxx shall have the benefit of any
construction or equipment warranties existing in favor of Lessor
that would assist Lessee in correcting such defect and in
discharging its obligations regarding the repair and maintenance of
the Premises. Upon request by Lessee, Lessor shall inform Lessee of
all written construction and equipment warranties existing in favor
of Lessor which affect the Interior Improvements. Lessor shall
cooperate with Lessee in enforcing such warranties and in bringing
any suit that may be necessary to enforce liability with regard to
any defect for which Lessor is not responsible pursuant to this
paragraph so long as Lessee pays all costs reasonably incurred by
Lessor in so acting.
PAGE 6.
X. Xxxxxx makes no other express or implied warranty with respect to
the design, construction or operation of the Interior Improvement
except as set forth in this paragraph.
8. EFFECT OF AGREEMENT: In the event of any inconsistency between this
Improvement Agreement and the Lease, the terms of this Improvement
Agreement shall prevail.
LESSOR: LESSEE:
Xxxxx X. Xxxxxx and Xxxxxx Xxxxxx IntraBiotics Pharmaceuticals, Inc.
Family Trust A Delaware corporation
By: /s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------- ----------------------------------
By: /s/ Xxxxxx Xxxxxxx Title: President and CEO
----------------------------------- -------------------------------
Date: July 31, 1998 Date: July 29, 1998
--------------------------------- --------------------------------
By:
----------------------------------
Title:
-------------------------------
Date:
--------------------------------
PAGE 7.
EXHIBIT C
LESSOR'S REMEDIES IN EVENT OF LESSEE DEFAULT
(STATE OF CALIFORNIA)
(a) TERMINATION. In the event of any Default by Lessee, then in addition
to any other remedies available to Lessor at law or in equity and under this
Lease, Lessor shall have the immediate option to terminate this Lease and all
fights of Lessee hereunder by giving written notice of such intention to
terminate. In the event that Lessor shall elect to so terminate this Lease then
Lessor may recover from Lessee:
(1) the worth at the time of award of any unpaid Rent and any
other sums due and payable which have been earned at the time of such
termination; plus
(2) the worth at the time of award of the amount by which the
unpaid Rent and any other sums due and payable which would have been earned
after termination until the time of award exceeds the amount of such rental loss
Lessee proves could have been reasonably avoided; plus
(3) the worth at the time of award of the amount by which the
unpaid Rent and any other sums due and payable for the balance of the term of
this Lease after the time of award exceeds the amount of such rental loss that
Lessee proves could be reasonably avoided; plus
(4) any other amount necessary to compensate Lessor for all
the detriment proximately caused by Lessee's failure to perform its obligations
under this Lease or which in the ordinary course would be likely to result
therefrom, including, without limitation, any costs or expenses incurred by
Lessor (i) in retaking possession of the Premises; (ii) in maintaining,
repairing, preserving, restoring, replacing, cleaning, altering or
rehabilitating the Premises or any portion thereof, including such acts for
reletting to a new lessee or lessees; (iii) for leasing commissions; or (iv) for
any other costs necessary or appropriate to relet the Premises; plus
(5) such reasonable attorneys' fees incurred by Lessor as a
result of a Default, and costs in the event suit is filed by Lessor to enforce
such remedy; and plus
(6) at Lessor's election, such other amounts in addition to or
in lieu of the foregoing as may be permitted from time to time by applicable
law.
As used in subparagraphs (1) and (2) above, the "worth at the time of
award" is computed by allowing interest at an annual rate equal to twelve
percent (12%) per annum or the maximum rate permitted by law, whichever is less.
As used in subparagraph (3) above, the "worth at the time of award" is 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%). Lessee waives
redemption or relief from forfeiture under California Code of Civil Procedure
Sections 1174 and 1179, or under any other present or future law, in the event
Lessee is evicted or Lessor takes possession of the Premises by reason of any
Default of Lessee hereunder.
(b) CONTINUATION OF LEASE. In the event of any Default by Lessee, then
in addition to any other remedies available to Lessor at law or in equity and
under this Lease, Lessor shall have
PAGE 1.
the remedy described in California Civil Code Section 1951.4 (Lessor may
continue this Lease in effect after Lessee's Default and abandonment and
recover Rent as it becomes due, provided Lessee has the right to sublet or
assign, subject only to reasonable limitations).
(c) RE-ENTRY. In the event of any Default by Lessee, Lessor shall also
have the right, with or without terminating this Lease, in compliance with
applicable law, to re-enter the Premises and remove all persons and property
from the Premises; such property may be removed and stored in a public warehouse
or elsewhere at the cost of and for the account of Lessee.
(d) RELETTING. In the event of the abandonment of the Premises by Lessee
or in the event that Lessor shall elect to re-enter or shall take possession of
the Premises pursuant to legal proceeding or pursuant to any notice provided by
law, then if Lessor does not elect to terminate this Lease as provided in
Paragraph a, Lessor may from time to time, without terminating this Lease, relet
the Premises or any port thereof for such term or terms and at such rental or
rentals and upon such other terms and conditions as Lessor in its sole
discretion may deem advisable with the fight to make alterations and repairs to
the Premises. In the event that Lessor shall elect to so relet, then rentals
received by Lessor from such reletting shall be applied in the following order:
(1) to reasonable attorneys' fees incurred by Lessor as a result of a Default
and costs in the event suit is filed by Lessor to enforce such remedies; (2) to
the payment of any indebtedness other than Rent due hereunder from Lessee to
Lessor; (3) to the payment of any costs of such reletting; (4) to the payment of
the costs of any alterations and repairs to the Premises; (5) to the payment of
Rent due and unpaid hereunder; and (6) the residue, if any, shall be held by
Lessor and applied in payment of future Rent and other sums payable by Lessee
hereunder as the same may become due and payable hereunder. Should that portion
of such rentals received from such reletting during any month, which is applied
to the payment of Rent hereunder, be less than the Rent payable during the month
by Lessee hereunder, then Lessee shall pay such deficiency to Lessor. Such
deficiency shall be calculated and paid monthly. Lessee shall also pay to
Lessor, as soon as ascertained, any costs and expenses incurred by Lessor in
such reletting or in making, such alterations and repairs not covered by the
rentals received from such reletting.
(e) Termination. No re-entry or taking of possession of the Premises by
LESSOR pursuant to this Addendum shall be construed as an election to terminate
this Lease unless a written notice of such intention is given to Lessee or
unless the termination thereof is decreed by a court of competent jurisdiction.
Notwithstanding any reletting without termination by Lessor because of any
Default by Lessee, Lessor may at any time after such reletting elect to
terminate this Lease for any such Default.
(f) Cumulative Remedies. The remedies herein provided are not exclusive
and Lessor shall have any and all other remedies provided herein or by law or in
equity.
(g) No Surrender. No act or conduct of Lessor, whether consisting of the
acceptance of the keys to the Premises, or otherwise, shall be deemed to be or
constitute an acceptance of the surrender of the Premises by Lessee prior to the
expiration of the Term, and such acceptance by Lessor of surrender by Lessee
shall only flow from and must be evidenced by a written acknowledgment of
acceptance of surrender signed by Lessor. The surrender of this Lease by Lessee,
voluntarily or otherwise, shall not work a merger unless Lessor elects in
writing that such merger take place, but shall operate as an assignment to
Lessor of any and all existing
PAGE 2.
subleases, or Lessor may, at its option, elect in writing to treat such
surrender as a merger terminating Lessee's estate under this Lease, and
thereupon Lessor may terminate any or all such subleases by notifying the
sublessee of its election so to do within five (5) days after such surrender.
(h) NOTICE PROVISIONS. Lessee agrees that any notice given by Lessor
pursuant to Paragraph 13.1 of the Lease shall satisfy the requirements for
notice under California Code of Civil Procedure Section 1161, and Lessor shall
not be required to give any additional notice in order to be entitled to
commence an unlawful detainer proceeding.
Lessee Initials Lessor Initials
---------------- ----------------
PAGE 3.
EXHIBIT D
FINAL PLANS AND SPECIFICATIONS
(TO BE ATTACHED)
PAGE 4.
FIRST AMENDMENT TO
STANDARD INDUSTRIAL/COMMERCIAL SINGLE TENANT LEASE
Dated August 3, 1998
Xxxxx X. Xxxxxx and Xxxxxx Xxxxxx Family Trust/IntraBiotics
Pharmaceuticals, Inc.
THIS FIRST AMENDMENT to Standard Industrial/Commercial Single Tenant
Lease is made effective as of August 2, 1998 to amend that certain Standard
Industrial/Commercial Single Tenant Lease dated for reference purposes only
July___, 1998 between Xxxxx X. Xxxxxx and Xxxxxx Xxxxxx Family Trust, as
Lessor, and IntraBiotics Pharmaceuticals, Inc., as Lessee (the "Lease") as
follows:
1. The reference to an Exhibit E in Paragraph 1.7 is hereby deleted.
The Lease will have no Exhibit E.
2. Paragraph 5 is hereby renumbered and designated as "5.1 SECURITY
DEPOSIT" and the following is added as Paragraph 5.2:
"5.2 LETTER OF CREDIT.The non-cash portion of the Security
Deposit shall consist of an irrevocable standby letter of credit (the
"Letter of Credit") in the face amount specified in Paragraph 1.7
above. Lessee shall obtain and maintain the Letter of Credit throughout
the term of this Lease and any extension thereof, subject to the terms
of this Paragraph 5.2. The Letter of Credit shall be issued by a major
commercial bank reasonably acceptable to Landlord, with a San Xxxxxxxxx
xxxxxx servicing as a service and claim point for the Letter of Credit;
have a term of no less than one (1) year and be automatically renewable
for an additional one (1) year period unless notice of non-renewal is
given by the issuer to Landlord not later than sixty (60) days prior to
the expiration thereof; provide for payment to Landlord upon the
issuer's receipt of a sight draft from Landlord together with
Landlord's certificate certifying that the requested sum is due and
payable from Tenant and Landlord is entitled to draw on the Letter of
Credit in accordance with this Paragraph 5, and with no other
conditions; and otherwise be in form and content reasonably
satisfactory to Landlord. If Landlord draws on the Letter of Credit
pursuant to the terms hereof, Tenant shall immediately replenish the
Letter of Credit or provide Landlord with an additional letter of
credit conforming to the requirements of this Paragraph so that the
amount available to Landlord from the Letter of Credit(s) provided
hereunder is the amount specified herein. Tenant's failure to deliver
any replacement, additional or extension of the Letter of Credit, or
evidence of renewal of the Letter of Credit, within the time specified
herein shall constitute a Default under this Lease and shall entitle
Landlord to draw the full amount of the Letter of Credit then in
effect. The provisions of Paragraph 31 (Attorneys Fees) shall apply to
any action by Landlord to enforce or exercise its rights under this
Paragraph 5."
3. Except as so amended, the Lease shall remain unmodified and in full
force and effect.
1.
In witness whereof the parties have executed this First
Amendment to be effective as of the date written above.
Dated: August 3, 1998 Dated: August 3, 1998
----------------------------- -----------------------------
LESSOR LESSEE
Xxxxx X. Xxxxxx and Xxxxxx Xxxxxx IntraBiotics Pharmaceuticals, Inc.
Family Trust
By /s/Xxxxx X. Xxxxxx By /s/Xxxxxxx X. Xxxxxx
---------------------------------- ---------------------------------
Title Trustee Title President & CEO
------------------------------- ------------------------------
By /s/Xxxxxx Xxxxxx By /s/Xxxxx Xxxxxx
---------------------------------- ---------------------------------
Title Title Vice President & CFO
------------------------------- ------------------------------
2.
