EXHIBIT 10.5
------------
W I T N E S S E T H:
THAT WHEREAS, Owner, as Landlord, did execute a Lease dated September 2, 1992
with Lessee, as Tenant, covering a portion of that certain real property
described in Exhibit "A" attached hereto and by this reference incorporated
herein; and
WHEREAS, Owner has previously executed, a deed of trust and note in the sum of
$7,225,000.00 dated October 4, 1988, in favor of UNION BANK (hereinafter
referred to as "Lender"), payable with interest and upon the terms and
conditions described therein, which deed of trust was recorded October 6, 1988,
as instrument No. 88135299 in the official Records of San Mateo County,
California;
WHEREAS, it is to the mutual benefit of the parties hereto that Lender has made
such loan to Owner;
NOW, THEREFORE, in consideration of the mutual benefits accruing to the parties
hereto and other valuable consideration, the receipt and sufficiency of which
consideration are hereby acknowledged, it is hereby declared, understood and
agreed as follows:
1. That Lender would not have made the loan described above without the
right to have Lessee enter into this Agreement.
2. That this Agreement shall be the whole and only agreement between the
parties hereto and shall supersede and cancel any prior agreements as
to those provisions contained in the Lease above mentioned, which may
or do provide for the subordination of the Lease and leasehold
interest of Lessee to the deed or deeds of trust or a mortgage or
mortgages to be thereafter executed.
3. Lessee and Owner hereby agree and the recordation of this Agreement by
or on behalf of Lender shall constitute Lender's agreement as follows:
(a) In the event of foreclosure of said deed of trust, Lender will
not join Lessee in any summary proceedings so long as Lessee is
not in default under any of the terms, covenants or conditions of
the Lease.
(b) It is the express intent of the parties hereto that a foreclosure
of said deed of trust, the exercise of the power of sale, or the
exercise of any other remedies provided therein, or provided in
any other instruments securing the indebtedness
secured by said deed of trust, or the delivery of a deed to the
subject premises in lieu of foreclosure, shall not, of itself,
result in the termination of or otherwise affect the Lease, but
Lender and any purchaser or other grantee upon foreclosure of
said deed of trust or conveyance in lieu of foreclosure shall
thereby automatically succeed to the position of Owner under the
Lease.
(c) If, by dispossession, foreclosure, exercise of the power of sale,
or otherwise, Lender, its successors or assigns, or any purchaser
at the foreclosure sale, or otherwise, shall come into possession
of or become the owner of the premises demised by the Lease, such
person shall succeed to the interest of Owner under the Lease,
and, if no default then exists under the terms, conditions and
provisions of the Lease, the Lease shall remain in effect as a
lease of said demised premises, together with all of the rights
and privileges therein contained, between such person and Lessee
for the balance of the term of the Lease between Owner and
Lessee.
Lessee agrees to attorn to accept such person as Lessor under the
Lease and to be bound by and to perform all of the obligations
imposed by the Lease upon the Lessee therein, and Lender, its
successors or assigns, or any purchaser at a foreclosure or
trustee's sale, or otherwise, will not disturb the possession of
Lessee and will be bound by all of the obligations imposed by the
Lease upon the Lessor therein; provided, however, that Lender, or
any purchaser at a foreclosure or trustee's sale or otherwise
shall not be
(i) liable for any act or omission of a prior lessor
(including Owner); or
(ii) subject to any offsets or defenses which Lessee might
have against any prior lessor (including Owner); or
(iii) bound by any rent or additional rent which Lessee might
have paid in advance to any prior lessor (including
Owner) for any period beyond the month in which the
foreclosure, sale termination or conveyance occurs; or
(iv) bound by any agreement or modification of the Lease
made without the consent of Lender.
-2-
(d) Upon the written request of either Lessee or Lender given to the
other at the time of a foreclosure of said deed of trust or sale
under power of sale therein contained or conveyance in lieu of
foreclosure, and if no default then exists under the terms,
conditions and provisions of the Lease, Lessee and Lender agree
to execute a lease of the premises demised by the Lease upon the
same terms and conditions as the Lease between Owner and Lessee,
which lease shall cover any unexpired terms of the Lease existing
prior to such foreclosure, trustee's sale or conveyance in lieu
of foreclosure.
4. This Agreement shall be binding upon and inure to the benefit of
Lender and the parties hereto and their respective successors and
assigns upon recordation by or on behalf of Lender.
LESSEE OWNER
DepoMed Systems, Inc., 0000 Xxxxx Xxxxx Limited
a California Corporation Partnership,
a Texas Limited Partnership
BY:/s/ Xxxx X. Xxxxx BY:
-------------------------- ------------------------
X. XxXxxxxx Xxxxxxxx,
General Partner
BY: Xxxxxxxx Xxxx Foundation,
Ltd., a Texas Limited
Partnership,
General Partner
UNION BANK BY: TCF, Inc., a Texas
Corporation, General Partner
BY_________________________ BY:___________________
Xxxxxx X. Xxxxxxxxx, Xxxxxxxx Xxxx,
Assistant Vice President President
BY_________________________
Xxxxxxxx X. Xxxxxxx,
Vice President & Manager
-3-
This page intentionally left blank.
-4-
EXHIBIT A
Attached to and made a part of Non-Disturbance and Attornment Agreement
All that property situated in the State of California, County of San Mateo,
City of Xxxxxx City described as follows:
PARCEL I
--------
Lots 23, 24 and a portion of Lot 29, as designated on the map entitled "Tract
Xx. 000 Xxxxxx Xxxx- Xxxxxxxxxx Xxxx Xx. 0 in unincorporated territory San
Mateo County, California", which map was filed in the office of the recorder
of the County of San Mateo, State of California on January 15, 1964 in Book 59
of Maps at Pages 35, 36 and 37, said portion of Lot 29 being are particularly
described as follows:
Beginning at the most Southerly Corner of said Lot 29; thence from said point
of beginning along the Southwesterly Line of said Xxx 00, Xxxxx 00 degrees 48'
14" West 218.63 feet; thence North 3 degrees 33' 57" West 134.12 feet; thence
along the Northerly line of said Xxx 00 Xxxxx 00 degrees 26' 03" East 33.97
feet; thence crossing Xxx 00, Xxxxx 00 degrees 47' 43" East 297.54 feet to a
point on the Northwesterly line of Chess Drive as shown on said Map; thence
along said Northwesterly line South 42 degrees 11' 46" West 56.00 feet to the
point of beginning.
This deed is made and accepted upon the covenants and restrictions set forth
in that Declaration of Restrictions recorded January 15, 1964 in Book 4628 of
Official Records, San Mateo County at Page 1, and the amendment thereto
recorded March 18, 1966 in Book 5130 of Official Records, San Mateo County at
Page 138, all of which are incorporated herein by reference to said
Declaration with the xxx effect as though fully set forth herein.
PARCEL 2
--------
Parcel A as said Parcel is shown on the certain map entitled "Parcel Map 8-73
in the incorporated territory of the City of Xxxxxx City, County of San Mateo,
State of California, being a resubdivision of Parcels A & B of parcel map
recorded in Book 12 of parcel maps at Page 21, and also being a resubdivision
of Xxxx 00 xxx 00 Xxxxx Xx. 000, Xxxxxx Xxxx, Xxxxxxxxxx Xxxx Unit No. 1,
recorded in Book 59 of Maps at Pages 35 to 37 inclusive, San Mateo County
Records", which map was filed in the office of the Recorder of the County of
San Mateo, State of California on July 6, 1973 in Book 21 of Parcel Maps, Page
19.
PARCEL 3
--------
Parcel "B" as said parcel is shown on that certain nor entitled "Parcel Map 8-
73 in the incorporated territory of the City of
-5-
Xxxxxx City, County of San Mateo, State of California being a resubdivision of
Parcel A & B of parcel map recorded in Book 12 of parcel maps at Page 21 and
also being a resubdivision of Xxxx 00 & 00 Xxxxx Xx. 000, Xxxxxx Xxxx-
Xxxxxxxxxx Xxxx Unit No. 1 recorded in Volume 59 of Maps at Page 35 to 37
inclusive, San Mateo County Records", which map was filed in the Office of the
Recorder of the County of San Mateo, State of California on July 6, 1973 in
Volume 21 of parcel maps at Page 19.
PARCEL 4
--------
Together with a non-exclusive easement for ingress and egress over and across
the South 10 feet of the West 62 feet of Parcel "C" as said Parcel is shown on
that certain map entitled "Parcel Map 8-73 in the incorporated territory of
the City of Xxxxxx Xxxx, Xxxxxx xx Xxx Xxxxx, Xxxxx xx Xxxxxxxxxx being a
resubdivision of Parcels A & B of parcel map recorded in Book 12 of parcel
maps at Page 21 and also being a resubdivision of Lots 25 and 26 Tract Xx.
000, Xxxxxx Xxxx-Xxxxxxxxxx Xxxx Xxxx Xx. 0 recorded in Volume 59 of Maps at
Pages 35 to 37 inclusive, San Mateo County Records", which map was filed in
the Office of the Recorder of the County of San Mateo, State of California on
July 6, 1973 in Volume 21 of parcel maps at Page 19.
-6-
State of California )
County of California )
On February 2, 1993 before me, Xxxxxx X. Xxxxxxx, personally appeared XXXX X.
XXXXX, President of DepoMed Systems, Inc. personally known to me (or proved to
me on the basis of satisfactory evidence) to be the person whose name is
subscribed to the within instrument and acknowledged to me that he executed the
same in his authorized capacity, and that by his signature on the instrument the
person, or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal.
Signature: /s/ Xxxxxx X. Xxxxxxx
------------------------
[OFFICIAL STAMP]
State of California )
County of ___________________)
On _________ __ ____, before me, _____________________, personally appeared
__________ personally known to me (or proved to me on the basis of satisfactory
evidence) to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s)
on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature:
--------------------
State of California )
County of ______________________)
On _________ __ ____, before me, _____________________, personally appeared
________________ personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to
the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon behalf of which
the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature:
----------------------
-7-
EXHIBIT B
TENANT ESTOPPEL CERTIFICATE
Tenant: Depomed Systems, Inc.
---------------------
THIS IS TO CERTIFY:
1. That the undersigned is the Tenant under that certain Lease dated
September 15, 1992, by and between 0000 Xxxxx Xxxxx Limited Partnership
------------------ ------------------------------------
("Landlord") and the undersigned ("Tenant") covering those certain premises as
more particularly described in the Lease (the "Premises").
2. A true and correct copy of the Lease and all amendments thereto is
attached hereto as Exhibit A. The Lease is in full force and effect and is the
---------
only lease or agreement between the Tenant and the Landlord affecting the
Premises.
3. To the best of Tenant's knowledge, the information set forth below is
true and correct:
(a) Square footage of the premises: 3,300
-------
(b) Annual rent as of the commencement
of Lease: 31,680
------
(c) Current annual rent (if different
than at commencement):
(d) Lease term commenced: 9/15/92
-------
(e) Lease termination date: 3/31/95
-------
(f) Rent is paid to and
including: 4/30/93
-------
(g) Security Deposit: 3,389
-------
(h) Prepaid rent for and in 0
amount of: -------
(i) Current charges outstanding
as of 4/8/93
------
DATE AMOUNT DESCRIPTION
---- ------ -----------
3/26/93 $455.89 Electric billback (2/2-3/4)
------- ------- ---------------------------
3/26/93 $122.93 Gas billback (2/2-3/4)
------- ------- ---------------------------
4. The Tenant, unless otherwise stated on Exhibit B, now occupies the
Premises, accepts the Premises in their current condition, and is not aware of
any defect in the Premises. No rent has been collected in the current month
other than disclosed in Paragraph 3 above. No free rent or other concessions
benefits, or inducements other than as specified in the lease have been granted
to Tenant or undertaken by Landlord.
5. The Tenant has not been granted any renewal, expansion or purchase
options and has not been granted any rights of first refusal except as disclosed
in writing in the Lease.
-1-
6. Neither Tenant nor Landlord is in default under the Lease and there
has not occurred any event, which by notice or lapse of time or both or
otherwise, will result in any default.
7. As of the date hereof and except as set forth in the Lease, the
undersigned is entitled to no credit, offset, or deduction in rent. Tenant
knows of no liabilities or obligations of Landlord which have accrued but are
unsatisfied under the Lease as of the date of this Certificate.
8. To the best of Tenant's knowledge, there are no actions, whether
voluntary or otherwise, pending against the undersigned under the Bankruptcy
laws or other laws for the relief of debtors of the United States or any state
thereof.
DATED this 21st day of April, 1993.
---- -----
Tenant
Depomed Systems Inc.
-------------------------
-------------------------
a California corporation
By: /s/ Xxxx X. Xxxxx
----------------------
Its: President & CEO
---------------------
