EXHIBIT 10.1
AMENDMENT OF TERMINATION AGREEMENT AND TERMINATION OF
OPTION AGREEMENT
THIS SECOND AMENDMENT OF TERMINATION AGREEMENT AND TERMINATION OF
OPTION AGREEMENT (this "Amendment") is entered into as of May 9, 2003, by and
among AMB PROPERTY, L.P., a Delaware limited partnership ("AMB"), NUVELO, INC.,
a Nevada corporation, successor by merger to Hyseq, Inc., a Nevada corporation
("Nuvelo"), and XXXXXX XXXXXXXX, an individual ("Guarantor"). AMB, Nuvelo and
Guarantor are sometimes referred to individually herein as a "Party" and
collectively as the "Parties."
RECITALS
A. AMB, Nuvelo and Guarantor are parties to that certain
Conditional Lease Termination Agreement dated as of October 1, 2002 (the
"Termination Agreement") pursuant to which the lease between AMB and Nuvelo
dated as of June 23, 2000, as amended by that certain First Amendment to Lease
Agreement dated December 14, 2000 (as so amended, the "Lease"), relating to, and
Nuvelo's right to possession of, the approximately 59,300 rentable square feet
located at 225, 249 and 000 Xxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxx (the
"Property"), was terminated, all as more particularly described in the
Termination Agreement.
B. In connection with the Termination Agreement, AMB and Nuvelo
also entered into that certain Real Property Option and Sale Agreement and Joint
Escrow Instructions dated as of October 1, 2002 (the "Option Agreement")
pursuant to which AMB granted to Nuvelo an option to purchase the Property on
the terms and conditions contained in the Option Agreement (the "Option"). As
partial consideration for the Option, Nuvelo also executed a Promissory Note
dated November 1, 2002 (the "Original Note") in the principal amount of
$2,600,000 in favor of AMB, and issued to AMB a Warrant to Purchase Shares of
Common Stock dated November 1, 2002 for up to 195,130 shares of common stock of
Nuvelo (the "Original Warrants"). A Memorandum of Option dated November 18, 2002
executed by AMB and Nuvelo was recorded on November 18, 2002 in the Official
Records of the County of Santa Xxxxx, State of California (the "Official
Records") as Instrument No 16622221.
C. Guarantor executed a guaranty (the "Original Guaranty") of
Nuvelo's obligations under the Original Note. Under the Original Guaranty,
Guarantor also guaranteed and promised to pay any avoidance by Nuvelo, Nuvelo's
successors or Nuvelo's creditors of all or any part of the sum of $3,100,00,
which amount represents a portion of the termination fee paid to AMB pursuant to
the Termination Agreement, or the recovery of any portion of such termination
fee directly or indirectly from AMB as a preference, fraudulent transfer or
otherwise under the Bankruptcy Code or other similar laws, which guarantee and
promise terminated on February 3, 2003.
D. The Parties acknowledge that AMB is holding an irrevocable
letter of credit number 306S234524 dated November 13, 2002 in the amount of
$250,000 (the "Repair Letter of Credit") issued by Union Bank of California (the
"Issuing Bank") in favor of AMB, as Beneficiary, for the account of Nuvelo, as
Applicant, which letter of credit secures the obligations of Nuvelo to repair
the Property set forth in the Termination Agreement and certain side letters
executed by the Parties in connection therewith (the "Original Repair
Obligations"). The Parties also acknowledge that in accordance with the
Termination Agreement, the Existing Letter of Credit (as defined in the
Termination Agreement) in the amount of $3,000,000 was previously returned by
AMB to the Issuing Bank and has been cancelled.
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E. The Termination Agreement, the Option Agreement, the Original
Note, the Warrants, the Original Guaranty, the Repair Letter of Credit and the
other instruments and documents executed by or entered into among the Parties in
connection therewith, are referred to herein sometimes collectively as the
"Original Transaction Documents." Capitalized terms used but not otherwise
defined herein shall have the same meanings as in the Original Transaction
Documents.
F. The Parties desire to terminate the Option and the Option
Agreement as provided herein and in the other Modification Documents (defined
below), all on and subject to the terms and conditions provided herein and in
the other Modification Documents.
G. Pursuant to the Option Agreement and the Original Note, the
principal amount of the Original Note becomes due and payable upon a termination
of the Option Agreement. Nuvelo desires to revise the terms of payment and
extend the maturity date of the Original Note, and AMB is willing to agree to
such revisions notwithstanding the termination of the Option Agreement, all on
and subject to the terms and conditions provided herein and in the other
Modification Documents.
H. The Parties have entered into that certain Pre-Negotiation and
Extension Agreement dated as of April 29, 2003, as amended by the letter
agreement dated May 7, 2003, providing for, among other things, the extension of
the Option Period (as defined in the Option Agreement) until 5:00 p.m. (Pacific
Standard Time) on May 9, 2003 (as amended, the "Pre-Negotiation Agreement").
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained and intending to be legally bound hereby, the Parties covenant
and agree as follows:
AGREEMENT
1. Reaffirmation of Termination of Lease and Termination Fee.
Notwithstanding anything to the contrary contained in this Agreement or the
other Modification Documents, the Parties acknowledge and reaffirm (a) the
termination of the Lease and of Nuvelo's right to possession of the Property
under the Lease as of October 1, 2002 pursuant to the Termination Agreement, as
revised hereby, and (b) the right of AMB to retain the Termination Fee in the
total amount of $5,400,000 paid to AMB under the Termination Agreement
(including, without limitation, the cash payment in the amount of $2,300,000
which amount the Parties acknowledge was previously paid by the Guarantor).
Nothing contained in this Agreement or the other Modification Documents shall
affect or be deemed to affect such prior termination of the Lease or AMB's right
to retain the Termination Fee in its entirety, which Termination Fee the Parties
acknowledge and agree has been fully earned.
2. Termination of Option and Option Agreement; Reaffirmation of
Option Consideration.
(a) Nuvelo and Guarantor acknowledge and agree that
Nuvelo has elected not to and will not exercise the Option to purchase the
Property under the Option Agreement if the transactions contemplated by this
Agreement are consummated. Subject to the provisions of Paragraph 11, the
Parties agree that from and as of the Effective Date (defined below), the Option
Agreement is hereby terminated in its entirety, including without limitation,
the Option contained therein, and the Parties have no further rights or
obligations thereunder, except those obligations which expressly survive a
termination of the Option Agreement or as otherwise expressly provided herein or
in the other Modification Documents. Without limitation, subject to the
provisions of Paragraph 11, from and as of the Effective Date, the Parties
acknowledge and agree that Nuvelo has no further right to exercise the Option
and no further rights or interests with respect to the Property (other than the
right of Nuvelo specifically contained in this Agreement to access the Property
in order to complete its repair obligations in accordance with Paragraph 6 of
this Agreement), and that the Loan Documents (as defined in the Option
Agreement) will not be
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executed or delivered under the Option Agreement (other than the Amended and
Restated Note (as defined in Paragraph 3) and the Amended and Restated Guaranty
(as defined in Paragraph 4) if the transactions contemplated hereby are
consummated). Nuvelo hereby waives, releases and relinquishes all right, title
and interest in and to the Property, including without limitation, pursuant to
the Option and the Option Agreement (other than such access rights in accordance
with Paragraph 6 of this Agreement and subject to the provisions of Paragraph
11). Concurrently with the execution of this Agreement, Nuvelo agrees to deliver
to Escrow Agent (defined below) as provided in Paragraph 11(b), two (2)
originals of a Quitclaim Deed and Termination of Option in the form of EXHIBIT A
attached hereto and incorporated herein by this reference (the "Quitclaim Deed")
duly executed and acknowledged by Nuvelo. Nuvelo further agrees to return to AMB
promptly following the Effective Date all due diligence materials and reports in
Nuvelo's possession relating to the Property (other than items which are subject
to contractual limitations with third parties against disclosure by Nuvelo,
documents which are privileged or constitute Nuvelo's internal analysis or
appraisal of the Property).
(b) Notwithstanding the termination of the Option and the
Option Agreement, and notwithstanding anything to the contrary contained in this
Agreement or the other Modification Documents, the Parties acknowledge and
reaffirm the right of AMB to retain the Initial Option Consideration and the
Additional Option Consideration previously paid to AMB pursuant to the Option
Agreement (in the total amount of $2,340,000, including, without limitation, the
cash payment in the amount of $1,700,000 which amount the Parties acknowledge
was previously paid by the Guarantor), as well as the option payments evidenced
by and due under the Amended and Restated Note (defined below). Nothing
contained in this Agreement or the other Modification Documents shall affect or
be deemed to affect AMB's right to such option consideration in its entirety,
which option consideration the Parties acknowledge and agree has been fully
earned.
3. Amended and Restated Note. The Parties acknowledge and agree
that the Original Note shall be amended and restated in its entirety pursuant to
the Amended and Restated Promissory Note in the amount of $2,600,000 in the form
attached hereto as EXHIBIT B and incorporated herein by this reference (the
"Amended and Restated Note"), effective as of the Effective Date and subject to
satisfaction of all of the Conditions Precedent set forth in Paragraph 11 of
this Agreement.
4. Amended and Restated Guaranty. Concurrently herewith, the
Guarantor agrees to execute and deliver (and to cause Xxx. Xxxxxxxx to execute
and deliver) to AMB, as provided in Paragraph 11(c), the Amended and Restated
Guaranty in the form of EXHIBIT C attached hereto and incorporated herein by
this reference (the "Amended and Restated Guaranty"), which shall amend and
restate the Original Guaranty in its entirety effective as of the Effective Date
and subject to satisfaction of all of the Conditions Precedent set forth in
Paragraph 11 of this Agreement.
5. Additional Warrants. In consideration for AMB entering into
the Modification Documents, concurrently herewith, Nuvelo agrees to execute and
deliver to AMB, as provided in Paragraph 11(a), a Stock Purchase Warrant to
Purchase Shares of Common Stock for 200,000 shares of common stock of Nuvelo (in
addition to the Original Warrants) in the form attached hereto as EXHIBIT D and
incorporated herein by this reference (the "Additional Warrants"). Nuvelo hereby
reaffirms all of its obligations, as successor by merger to Hyseq, Inc., under
the Original Warrants, and represents and warrants to AMB that the Original
Warrants are in full force and effect as of the date hereof and as of the
Effective Date.
6. Repair Obligations; Access Rights.
(a) The Original Repair Obligations set forth in
Paragraph 5 of the Termination Agreement and the side letters executed by the
Parties in connection therewith are hereby amended and
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restated in their entirety as set forth in this Paragraph 6. Nuvelo agrees to
perform, at its sole cost and expense, the repair and restoration obligations
described in this Paragraph 6, and as further described in EXHIBIT E and
SCHEDULE 1 attached hereto and incorporated herein by this reference
(collectively, the "Repair Obligations" or the "Work"), on or before the date
that is 90 days after the Effective Date (the "Repair Deadline"). As part of the
Repair Obligations, Nuvelo shall, without limitation: (1) remove and restore the
items listed on EXHIBIT E and SCHEDULE 1, (2) leave the Premises in a
broom-clean condition, free of all materials, supplies, equipment and personal
property, (3) repair any damage to the Premises caused by any such removal or
restoration, (4) obtain unconditional lien releases in form satisfactory to AMB
from all contractors and subcontractors performing any portion of the Work, in
each case prior to the Repair Deadline, and (5) otherwise comply with the
provisions of this Paragraph 6 and EXHIBIT E.
(b) Upon completion of the Work, Nuvelo shall contact
AMB's property manager, Xxx Xxxxxx or Xxxx Xxxxx of Legacy Partners (at [***]),
to inspect the Premises to determine on behalf of AMB if the Repair Obligations
have been fully satisfied as provided in this Paragraph 6. Nuvelo shall have the
right to have a representative of Nuvelo conduct such inspection with AMB. If
Nuvelo fails to fulfill any Repair Obligations on or prior to the Repair
Deadline to AMB's reasonable satisfaction, then AMB shall notify Nuvelo in
writing which of such obligations are not so satisfied. Nuvelo shall then have
10 days to complete the remaining Repair Obligations to AMB's reasonable
satisfaction. If Nuvelo does not so satisfy such remaining Repair Obligations
within such 10 day period, then AMB shall have the right (but not the
obligation) to perform such obligations on behalf of Nuvelo and to draw on the
Repair Letter of Credit and apply the proceeds thereof toward the costs incurred
by AMB in connection therewith. AMB shall be entitled to retain the Repair
Letter of Credit as security for the lien-free completion of the Repair
Obligations as provided in and subject to the provisions of this Paragraph 6.
Nuvelo shall give AMB 10 days' prior written notice before commencing the Work
to enable AMB to record and post a notice of non-responsibility.
(c) Upon completion of the Work, Nuvelo shall also
complete and record a Notice of Completion in the Official Records in accordance
with California Civil Code Section 3093 or any succeeding law, statute or
ordinance now or hereafter in effect. If the Repair Obligations have been
completed as provided in this Paragraph 6, then AMB agrees to return the Repair
Letter of Credit (or the proceeds thereof, if any, remaining after reimbursing
AMB in full for all reasonable costs and expenses incurred by AMB in performing
any portion of the Work that is not completed by Nuvelo as provided in
subparagraph (b) above, plus any amounts owing to AMB or any AMB Party under
Paragraph 9 hereof including, without limitation, reasonable attorneys' fees) to
Nuvelo on or before the date which is 90 days after the recordation of such
Notice of Completion.
(d) Subject to the indemnification provisions of
Paragraph 9 of this Agreement, and subject to receipt and approval by AMB of
evidence of insurance satisfactory to AMB (including without limitation general
liability insurance in the amount of at least $2,000,0000) covering Nuvelo and
all contractors and subcontractors performing the Work (which insurance shall
name AMB, AMB Property Corporation and AMB Property Capital Partners as
additional insureds), Nuvelo and its representatives shall be entitled to access
to the Premises upon reasonable advance notice to AMB's property manager, during
normal business hours, from the date hereof through the Repair Deadline to
perform the Repair Obligations, subject to such rules and regulations as AMB may
reasonably impose. At AMB's discretion, a representative of AMB's property
manager may accompany Nuvelo and its representatives and contractors. Subject to
the indemnification provisions of Xxxxxxxxx 0, XXX shall provide reasonable
access to Nuvelo and its employees, contractors and subcontractors to perform
preliminary inspections and bids prior to commencing the Work and delivering the
insurance documentation required hereunder.
(e) As a Condition Precedent pursuant to Paragraph 11,
Nuvelo shall deliver to AMB on or prior to the Effective Date, an amendment to
the Repair Letter of Credit, which amendment shall
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revise the statement to be delivered by the Beneficiary in connection with a
draw under the Repair Letter of Credit to read as provided in the following
paragraph, in form and content satisfactory to AMB in its sole discretion (the
"Repair Letter of Credit Amendment"):
"The undersigned being an authorized representative
or officer of [Name of Beneficiary] (the
"Beneficiary") hereby certifies that it is entitled
to draw on Union Bank of California, N.A. Letter of
Credit No. 306S234524 pursuant to the Conditional
Lease Termination Agreement dated October 1, 2002, as
amended by the Amendment of Termination Agreement and
Termination of Option Agreement, between AMB
Property, L.P., a Delaware limited partnership,
Nuvelo, Inc., a Nevada corporation, successor by
merger to Hyseq, Inc., and Xxxxxx Xxxxxxxx, and as
the same may be further amended or assigned, or any
documents related thereto."
(f) All contractors and subcontractors performing any
portion of the Work on behalf of Nuvelo shall be duly licensed in the State of
California and shall, together with any contracts entered into for any portion
of the Work, be subject to the prior written approval of AMB, which approval
shall not be unreasonably withheld, conditioned or delayed. Prior to
commencement of the Work, Nuvelo shall provide AMB with plans and specifications
for the Work for AMB's prior written approval, which approval shall not be
unreasonably withheld, and shall obtain and provide to AMB all required permits
for the Work. Nuvelo shall and shall cause its contractors to perform the Work
in accordance with all applicable laws, rules, ordinances and regulations,
including without limitation, local building codes, free of defects and liens,
and otherwise in accordance with the provisions of EXHIBIT E. Any delay in the
commencement of Work caused by AMB's unreasonable denial of reasonably proposed
licensed contractors and subcontractors or plans and specifications or
unreasonable delay in the approval of the matters required under this paragraph
shall extend the Repair Deadline by the amount of such delay caused by AMB.
7. Representations and Warranties of Nuvelo. Nuvelo represents
and warrants that (a) Nuvelo is the successor by merger to, and has succeeded to
all of the obligations, debts and liabilities of, Hyseq, Inc., a Nevada
corporation, including without limitation the obligations of Hyseq, Inc. under
the Original Transaction Documents; (b) Nuvelo has not made (i) any direct or
indirect (whether by operation of law or otherwise) disposition, assignment,
sublease, conveyance or other transfer of its obligations under the Original
Transaction Documents or (ii) any assignment or encumbrance of any of the
Original Transaction Documents; (c) Nuvelo has no knowledge of any fact or
circumstance which would give rise to any claim, demand, obligation, liability,
action or cause of action arising out of or in connection with Nuvelo's
occupancy of the Premises; (d) no other person or entity claiming by, through or
under Nuvelo has an interest in the Premises, collateral or otherwise; (e) there
are no outstanding contracts for the supply of labor or material and no work has
been done or is being done in, to or about the Premises which has not been fully
paid for and for which appropriate waivers of mechanic's liens have not been
obtained; (f) the person or entity executing this Agreement and the other
Modification Documents on behalf of Nuvelo has the full right, power and
authority to execute this Agreement and the other Modification Documents and to
bind Nuvelo without the consent or approval of any other person or entity or all
such consents or approvals have been duly obtained; (g) Nuvelo and Guarantor
each has the full power, capacity, authority and legal right to execute and
deliver this Agreement and the other Modification Documents to which it or he is
a party; (h) to the best of Nuvelo's knowledge, this Agreement and the other
Modification Documents are legal, valid and binding upon Nuvelo and Guarantor
(as applicable), and are enforceable in accordance with their terms; (i) there
are no uncured defaults on the part of AMB and neither Nuvelo nor Guarantor has
any claim, cause of action, offset, set-off, deduction, counterclaim or other
similar
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right against AMB, including, without limitation, for a refund of any Operating
Expenses or Property Taxes under the Lease; (j) Guarantor will benefit from the
transactions contemplated hereunder and under the other Modification Documents;
(k) neither Nuvelo nor Guarantor has taken or is contemplating taking any of the
following actions: (1) made a general assignment for the benefit of creditors;
(2) filed any voluntary petition in bankruptcy or suffered the filing of an
involuntary petition by its creditors; (3) suffered the appointment of a
receiver to take possession of all, or substantially, all of its assets; (4)
suffered the attachment or other judicial seizure of all, or substantially all,
of its assets; (5) admitted in writing to its inability to pay its debts as they
become due; or (6) made an offer of settlement, extension or composition to its
creditors generally and (l) Nuvelo has received no notice of any material
proceeding or investigation by any regulatory agency pending or threatened
against Nuvelo. The foregoing representations and warranties shall be deemed to
be remade in full as of the Effective Date, and shall survive the termination of
the Option Agreement hereunder.
8. Representations and Warranties of AMB. AMB represents and
warrants that (a) AMB is the rightful owner of the Property; (b) AMB has not
made any direct or indirect (whether by operation of law or otherwise)
disposition, assignment, sublease, conveyance or other transfer of the Property
or any interest therein or any assignment or encumbrance of any of the Original
Transaction Documents; (c) AMB has no knowledge of any fact or circumstance
which would give rise to any claim, demand, obligation, liability, action or
cause of action arising out of or in connection with the Lease; (d) the person
or entity executing this Agreement and the other Modification Documents to which
AMB is a party on behalf of AMB has the full right, power and authority to
execute this Agreement and such other Modification Documents and to bind AMB,
without the consent or approval of any other person or entity; (e) AMB has the
full power, capacity, authority and legal right to execute and deliver this
Agreement and the other Modification Documents to which AMB is a party; (f) this
Agreement and the other Modification Documents to which AMB is a party are
legal, valid and binding upon AMB, and this Agreement and the other Modification
Documents are enforceable in accordance with their terms; (g) to the best of
AMB's knowledge, there are no uncured defaults on the part of Nuvelo or
Guarantor and AMB has no claim, cause of action, offset, set-off, deduction,
counterclaim or other similar right against Nuvelo or Guarantor except as
expressly provided in this Agreement and the other Modification Documents; and
(h) AMB has not done and is not contemplating taking any of the following
actions: (1) made a general assignment for the benefit of creditors; (2) filed
any voluntary petition in bankruptcy or suffered the filing of an involuntary
petition by its creditors; (3) suffered the appointment of a receiver to take
possession of all, or substantially, all of its assets; (4) suffered the
attachment or other judicial seizure of all, or substantially all, of its
assets; (5) admitted in writing to its inability to pay its debts as they become
due; or (6) made an offer of settlement, extension or composition to its
creditors generally. The foregoing representations and warranties shall be
deemed to be remade by AMB in full as of the Effective Date, and shall survive
the termination of the Option Agreement hereunder. The truth and accuracy of the
foregoing representations and warranties as of the date hereof and as of the
Effective Date shall be a Condition Precedent hereunder.
9. Indemnity; Release.
(a) Nuvelo shall protect, indemnify, defend (with counsel
reasonably acceptable to AMB) and hold AMB and the other AMB Parties (defined
below) harmless from and against any and all asserted, threatened or actual
claims (including third party claims), judgments, damages, penalties, fines,
liabilities, losses, liens, suits, administrative proceedings and costs
(including, but not limited to, reasonable attorneys', experts' and consultants'
fees and court costs), of any nature whatsoever (collectively, the "Claims"),
directly or indirectly relating to or arising from (a) any Work performed by or
on behalf of Nuvelo at the Premises, including, without limitation, any liens
filed in connection therewith or any violations of law or breach of the Repair
Obligations, (b) any access or entry on the Property or Premises by Nuvelo or
its contractors or representatives, and (c) any brokerage commission, finder's
fees or other amount due in connection with this Agreement or the other
Modification Documents
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to any person or entity claiming by, through or under Nuvelo or Guarantor,
including without limitation Xxxxx Xxxxx of BC Struxture ("Broker"). This
indemnity shall survive any termination of this Agreement and the termination of
the Option Agreement hereunder and shall continue in effect for as long as AMB
and the other AMB Parties may be subject to any of the Claims described above.
"AMB Parties" means AMB and AMB, AMB Property Corporation and AMB Property
Capital Partners and their respective partners, members, shareholders, officers,
directors, employees, property managers, representatives, agents, successors and
assigns.
(b) AMB shall protect, indemnify, defend (with counsel
reasonably acceptable to Nuvelo) and hold Nuvelo harmless from and against any
and all Claims directly or indirectly relating to or arising from any brokerage
commission, finder's fees or other amount due in connection with this Agreement
or the other Modification Documents to any person or entity claiming by, through
or under AMB, provided that AMB shall have no obligation to pay any commission
to Broker and such indemnity shall specifically excludes any Claim relating to
Broker. This indemnity shall survive any termination of this Agreement and the
termination of the Option Agreement hereunder and shall continue in effect for
as long as Nuvelo may be subject to any of the Claims described above.
(c) Nuvelo and Guarantor hereby reaffirm and restate the
releases and waivers contained in Paragraphs 2 and 4 of the Termination
Agreement, and each hereby further releases, discharges and waives any claims,
demands or causes of action whatsoever, including, without limitation, any and
all rights, obligations, liabilities, indebtedness, breaches of contract,
breaches of duty or any relationship, acts, omissions, misfeasance, malfeasance,
debts, defenses, sums of money, accounts, compensations, contracts,
controversies, promises, damages, costs, losses and expenses of every type,
kind, nature, description or character, and irrespective of how, why, or by
reason of what facts, whether heretofore or now existing, or that could, might,
or may be claimed to exist, of whatever kind or name, whether known or unknown,
suspected or unsuspected, liquidated or unliquidated, claimed or unclaimed,
whether based on contract, tort, breach of any duty, or other legal or equitable
theory of recovery, each as though fully set forth herein at length, arising or
accruing out of or in connection with the Original Transaction Documents as
amended by the Modification Documents or the Pre-Negotiation Agreement that
Nuvelo and/or Guarantor may have against AMB or any AMB Parties as of the
Effective Date. Notwithstanding the foregoing, nothing contained herein or in
the Original Transaction Documents as amended hereby and by the other
Modification Documents shall release the Parties from their respective
obligations under this Agreement or the Original Transaction Documents as
amended hereby and by the other Modification Documents and the Pre-Negotiation
Agreement, except as expressly provided herein and therein.
(d) AMB hereby reaffirms and restates the releases and
waivers contained in Paragraphs 3 and 4 of the Termination Agreement, and hereby
further releases, discharges and waives any claims, demands or causes of action
whatsoever, including, without limitation, any and all rights, obligations,
liabilities, indebtedness, breaches of contract, breaches of duty or any
relationship, acts, omissions, misfeasance, malfeasance, debts, defenses, sums
of money, accounts, compensations, contracts, controversies, promises, damages,
costs, losses and expenses of every type, kind, nature, description or
character, and irrespective of how, why, or by reason of what facts, whether
heretofore or now existing, or that could, might, or may be claimed to exist, of
whatever kind or name, whether known or unknown, suspected or unsuspected,
liquidated or unliquidated, claimed or unclaimed, whether based on contract,
tort, breach of any duty, or other legal or equitable theory of recovery, each
as though fully set forth herein at length, arising or accruing out of or in
connection with the Original Transaction Documents as amended by the
Modification Documents or the Pre-Negotiation Agreement that AMB may have
against Nuvelo as of the Effective Date.
(e) Notwithstanding the foregoing, nothing contained
herein or in the Original Transaction Documents as amended hereby and by the
other Modification Documents shall release the
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Parties from their respective obligations under this Agreement or the Original
Transaction Documents as amended hereby and by the other Modification Documents
and the Pre-Negotiation Agreement, except as expressly provided herein and
therein.
10. Re-Leasing of Premises. Nuvelo acknowledges and agrees that
AMB shall have full access to the Premises at all times in order to show the
Premises to prospective tenants. Nuvelo agrees that AMB may enter into a new
lease for the Premises with any third party and that Nuvelo shall have no right
to any amounts received by AMB in connection therewith. AMB's access to the
Premises and activities performed in accordance with this Paragraph 10 shall be
exercised so as not to unreasonably interfere with the completion of the Repair
Obligations prior to the Repair Deadline.
11. Conditions Precedent. All of the following conditions set
forth in subparagraphs (a) through (i) of this Paragraph 11 shall constitute
conditions precedent to the obligations of AMB under this Agreement and the
other Modification Documents (collectively, the "Conditions Precedent"):
(a) Nuvelo shall have duly executed and delivered to AMB
(care of Steppe, Stone & Xxxxx LLP, 000 Xxxxx Xxx, Xxxxx 000, Xxx Xxxxx, XX
00000, Attention: Xxxx X. Xxxxxx), three (3) originals of this Agreement, the
original Amended and Restated Note, and three (3) originals of the Additional
Warrants;
(b) Nuvelo shall have duly executed, acknowledged and
delivered to each of First American Title Company, at 0000 Xxxxx Xxxxx Xxxxxx,
Xxxxx 000, Xxx Xxxx, XX, Attention: Xxxx Xxxxx ("Escrow Agent"), and AMB (care
of Steppe, Stone & Xxxxx LLP, 000 Xxxxx Xxx, Xxxxx 000, Xxx Xxxxx, XX 00000,
Attention: Xxxx X. Xxxxxx) two (2) originals of the Quitclaim Deed, together
with recording instructions consistent with this Agreement authorizing Escrow
Agent to record the Quitclaim Deed in the Official Records;
(c) Guarantor and Xxx. Xxxxxxxx shall have duly executed,
acknowledged (where required) and delivered to AMB (care of Steppe, Stone and
Xxxxx at the address set forth above) three (3) originals of each of this
Agreement and the Amended and Restated Guaranty;
(d) AMB shall have received (care of Steppe, Stone and
Xxxxx at the address set forth above) and approved the original Repair Letter of
Credit Amendment which shall have been duly issued by the Issuing Bank as of the
Effective Date;
(e) AMB shall have received (care of Steppe, Stone and
Xxxxx at the address set forth above) and approved an original legal opinion of
Nuvelo's counsel, in form and substance satisfactory to AMB in its sole
discretion, opining to AMB that (i) Nuvelo is duly formed, validly existing and
in good standing in the state of its formation and is the successor by merger to
Hyseq, Inc., a Nevada corporation, (ii) Nuvelo is qualified to do business and
is in good standing in the State of California, (iii) Nuvelo has all requisite
power and authority to enter into this Agreement, the Amended and Restated Note,
the Additional Warrants, the Quitclaim Deed and the other Modification Documents
to which Nuvelo is a party, (iv) this Agreement, the Amended and Restated Note,
the Additional Warrants, the Quitclaim Deed and the other Modification Documents
to which Nuvelo is a party have each been duly authorized, executed and
delivered by Nuvelo, (v) the interest rate terms in the Amended and Restated
Note do not violate any applicable usury laws, (vi) this Agreement, the Amended
and Restated Note, the Additional Warrants, the Quitclaim Deed and the other
Modification Documents to which Nuvelo is a party, when executed, are the legal,
valid and binding obligations of Nuvelo and are enforceable against Nuvelo in
accordance with their terms, this Agreement, and (vi) Nuvelo has received no
notice of any material proceeding or investigation by any regulatory agency
pending or threatened against Nuvelo, which legal opinion shall be dated as of
the Effective Date;
[***] INDICATES THAT CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMMITTED AND
FILED SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 24B-2. CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMMITTED PORTIONS.
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(f) AMB shall have received (at its address set forth in
Paragraph 13 hereof) and approved the most recent financial statements or
balance sheet of the Guarantor, certified by the Guarantor to AMB as being true
and correct in all material respects and fairly representing the financial
condition of the Guarantor;
(g) Nuevo and/or Guarantor shall have reimbursed AMB for
all legal fees and expenses incurred by AMB in connection with the preparation,
negotiation and execution of this Agreement, the other Modification Documents
and the Pre-Negotiation Agreement and the transactions contemplated hereby and
thereby and the Negotiations (as defined in the Pre-Negotiation Agreement) in an
aggregate amount not to exceed $15,000;
(h) All of the representations and warranties of the
Parties contained in this Agreement and in any of the other Modification
Documents shall be true and correct in all material respects as of the date
hereof and as of the Effective Date; and
(i) All of the foregoing documents and instruments to be
executed and delivered as provided in this Paragraph 11 (collectively, the
"Modification Documents") shall be in full force and effect as of the Effective
Date.
Nuvelo and Guarantor acknowledge that the Conditions Precedent are a material
inducement to AMB to enter into this Agreement and the other Modification
Documents. The date on which the Conditions Precedent are satisfied as required
herein shall be referred to herein as the "Effective Date." If any of the
Conditions Precedent is not satisfied as required herein and the Effective Date
does not occur on or before 5:00 p.m. (Pacific Standard Time) on May 14, 2003
(the "Modification Termination Date"), then, unless AMB elects in writing to
waive the same and to continue this Agreement and the other Modification
Documents in effect, (1) this Agreement and the other Modification Documents
shall terminate and shall be null and void and of no force or effect (other than
the provisions contained in Paragraphs 1, 2 and 10 and the provisions of this
Paragraph 11 and except those provisions of this Agreement and the other
Modification Documents which expressly state that they survive a termination
hereof or thereof), (2) the Termination Agreement and the other Original
Transaction Documents, including without limitation the Option Agreement, the
Original Note and the Original Guaranty, shall be deemed reinstated and
reaffirmed as if this Agreement and the other Modification Documents had not
been executed, without any further action by the Parties, (3) without
limitation, the entire principal amount of the Original Note shall be due and
owing as of, and the Option Period shall expire at 5:00 p.m. (Pacific Standard
Time) on, the Modification Termination Date, and the provisions of Section 2.4
of the Option Agreement shall otherwise apply, unless Nuvelo duly exercises the
Option prior to such expiration of the Option Period and in accordance with all
of the provisions of the Option Agreement and (4) the Parties agree that
notwithstanding anything to the contrary contained in the Original Transaction
Documents, AMB shall have the right (but not the obligation) immediately to
perform the Original Repair Obligations under the Termination Agreement itself
and the right to draw on the Repair Letter of Credit and apply the proceeds
thereof toward the costs and expenses incurred by AMB in performing the Original
Repair Obligations. The Conditions Precedent are intended to be solely for the
benefit of AMB and thus the Conditions Precedent may only be waived in writing
or considered satisfied by AMB (which AMB shall have the right but not the
obligation to do in its sole discretion). Upon notice from AMB to Escrow Agent
that all of the Conditions Precedent have been satisfied as provided herein, the
Parties hereby instruct the Escrow Agent to, and the Escrow Agent by its
signature below hereby agrees to, immediately record the Quitclaim Deed in the
Official Records without any further notice or actions by the Parties, and
despite any contrary instructions from any other party. Notwithstanding the
foregoing or anything to the contrary contained herein, the Parties acknowledge
and agree that AMB may elect instead to record the original Quitclaim Deed
delivered directly to AMB itself,
[***] INDICATES THAT CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMMITTED AND
FILED SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 24B-2. CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMMITTED PORTIONS.
9
and not have it recorded by the Escrow Agent, in accordance with the foregoing
sentence without any further notice or actions by the Parties, and despite any
contrary instructions from any other party.
12. Confidentiality. Neither Nuvelo nor Guarantor nor any of their
respective agents or any other parties acting on their behalf shall disclose any
matters set forth in the Termination Agreement as amended hereby or the Original
Transaction Documents as amended by the other Modification Documents, or
disseminate or distribute any information concerning the terms, details or
conditions hereof or thereof to any person, firm or entity without obtaining the
express prior written consent of AMB; provided, however, that the foregoing
prohibition shall not apply to (a) disclosures to attorneys, accountants,
lenders, investors and insurers, provided that such parties are informed of the
confidential nature of the terms and conditions thereof and, provided further,
that such parties are directed to treat such terms and conditions as
confidential, or (b) disclosures required by any applicable law or regulation
and, in such event, the disclosing party shall disclose only the specific
matters as are required by law to be disclosed. The provisions of this Paragraph
12 shall survive any termination of this Agreement, and the termination of the
Option Agreement and the consummation of the other transactions contemplated
hereby and by the other Modification Documents.
13. Notices. Any notice, election, communication, request,
approval or other document or demand required or permitted under this Agreement
shall be in writing to the respective addresses of the Parties set forth below
and may be delivered by personal delivery, facsimile transmission during the
normal business hours of the recipient with written acknowledgment of receipt,
an overnight delivery service, or U.S. mail sent certified with return receipt
requested. Notices are effective on the earlier of the date received, the date
of the delivery receipt (including in the case of notice by facsimile), or the
third day after postmark, as applicable.
To AMB: AMB Property, L.P.
Xxxx 0, Xxx 0
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn.: Xxxx X. Xxxxx
Tel: [***]
Fax: [***]
With a copy to:
Steppe, Stone & Xxxxx LLP
000 Xxxxx Xxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Tel: [***]
Fax: [***]
To Nuvelo: Nuvelo, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attn.: Xxxxx X. Xxxxxx
Tel: [***]
Fax: [***]
With a copy to:
Xxxxx Xxxxxxxxxx LLP
000 X. Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
[***] INDICATES THAT CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMMITTED AND
FILED SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 24B-2. CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMMITTED PORTIONS.
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Attn: Xxxxx Xxxxxx
Tel: [***]
Fax: [***]
To Guarantor: Xxxxxx Xxxxxxxx
c/o Nuvelo, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Tel: [***]
Fax: [***]
With a copy to:
Xxxxxxx Coie LLP
0000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxxxx, 00000
Attn: Xxxx X. Xxxxx
Tel: [***]
Fax: [***]
14. Miscellaneous.
(a) Voluntary Agreement. The Parties have read this
Agreement and the other Modification Documents to which they are a party and the
releases contained in herein and therein, and on advice of counsel they have
freely and voluntarily entered into this Agreement and the other Modification
Documents to which they are a party.
(b) Attorneys' Fees. Nuvelo shall reimburse AMB for all
legal fees and expenses incurred by AMB in connection with the preparation,
negotiation and execution of this Agreement and the other Modification Documents
and the Pre-Negotiation Agreement, whether or not the transactions contemplated
hereby are consummated, in an aggregate amount of $15,000. If any Party
commences an action against another Party arising out of or in connection with
this Agreement or the other Modification Documents or the Pre-Negotiation
Agreement, the prevailing party shall be entitled to recover from the losing
party reasonable attorneys' fees and costs of suit. The provisions of this
subparagraph (b) shall survive any termination of this Agreement and the
termination of the Option Agreement.
(c) Successors. This Agreement shall be binding upon and
inure to the benefit of AMB and Nuvelo and their respective successors, assigns
and related entities.
(d) Counterparts; Facsimile Signatures. This Agreement
may be executed in two or more counterparts, each of which shall be deemed to be
a duplicate original, but all of which together shall constitute one and the
same instrument. The Parties hereby agree that the facsimile signatures shall be
binding upon the parties to this Agreement.
(e) Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of California.
(f) Additional Documents. Each of the Parties hereto
specifically agrees to execute such other and further instruments and documents,
as may be reasonably required to effectuate the terms, conditions and objectives
of this Agreement.
[***] INDICATES THAT CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMMITTED AND
FILED SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 24B-2. CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMMITTED PORTIONS.
11
(g) Entire Agreement. This Agreement and the other
Modification Documents together with the Pre-Negotiation Agreement constitute
the entire understanding of the Parties and supersedes all prior agreements,
understandings, discussions, statements and negotiations of the Parties relating
to the subject matter herein contained.
(h) Authority. Each person signing this Agreement and the
other Modification Documents on behalf of the respective Parties represents and
warrants that she, he or it has the capacity and is authorized to execute and
deliver this Agreement and the other Modification Documents to which such Party
is a party, and that this Agreement and the other Modification Documents to
which such Party is a party will thereby become binding on such Party.
(i) Headings and Titles. The headings and titles to the
Paragraphs of this Agreement are for convenience only and shall have no effect
on the interpretation of any part of this Agreement.
(j) Deadline for Execution. Submission of this Agreement
and the other Modification Documents by AMB is not an offer to enter into this
Agreement and the other Modification Documents. AMB shall not be bound by this
Agreement and the other Modification Documents until the other Parties thereto
have duly executed, acknowledged (where required) and delivered the same and the
Conditions Precedent have been satisfied as required under this Agreement. This
Agreement shall be null and void and of no force or effect if not fully executed
by Nuvelo and Guarantor and delivered to AMB (care of Steppe, Stone and Xxxxx at
the address set forth in Paragraph 11(a))prior to 5:00 p.m. (Pacific Standard
Time) on May 9, 2003. The provisions of this subparagraph (j) shall survive any
termination of this Agreement.
(k) WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY TO THIS
AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION (a) ARISING UNDER THE TERMINATION AGREEMENT AS
AMENDED HEREBY OR THE OTHER ORIGINAL TRANSACTION DOCUMENTS AS AMENDED BY THE
OTHER MODIFICATION DOCUMENTS, INCLUDING, WITHOUT LIMITATION, ANY PRESENT OR
FUTURE MODIFICATION HEREOF OR (b) IN ANY WAY CONNECTED WITH OR RELATED OR
INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO
THE TERMINATION AGREEMENT AS AMENDED BY THIS AGREEMENT OR THE OTHER ORIGINAL
TRANSACTION DOCUMENTS AS AMENDED BY THE OTHER MODIFICATION DOCUMENTS (AS NOW OR
HEREAFTER MODIFIED) OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR
DELIVERED IN CONNECTION HEREWITH OR THEREWITH, OR THE TRANSACTIONS RELATED
HERETO OR THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND
WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES
AND CONSENTS THAT ANY PARTY MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS
SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO
TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY. EACH PARTY CONSENTS TO THE
JURISDICTION OF ANY FEDERAL OR STATE COURT WITHIN THE STATE OF CALIFORNIA HAVING
VENUE IN SAN FRANCISCO, CALIFORNIA. THE PROVISIONS OF THIS SUBPARAGRAPH SHALL
SURVIVE ANY TERMINATION OF THIS AGREEMENT, AND THE TERMINATION OF THE OPTION
AGREEMENT.
(l) ADVICE OF COUNSEL. THE PARTIES REPRESENT AND DECLARE
TO EACH OTHER THAT THEY HAVE CAREFULLY READ THIS AGREEMENT AND THE OTHER
MODIFICATION DOCUMENTS AND KNOW THE CONTENTS HEREOF AND THEREOF, AND THAT THEY
SIGN THE SAME FREELY AND VOLUNTARILY. EACH OF THE SIGNATORIES HERETO WARRANTS
AND REPRESENTS THAT THEY ARE EFFECTING THIS SETTLEMENT AND EXECUTING THIS
AGREEMENT AND THE OTHER MODIFICATION DOCUMENTS AFTER
[***] INDICATES THAT CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMMITTED AND
FILED SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 24B-2. CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMMITTED PORTIONS.
12
HAVING RECEIVED FULL LEGAL ADVICE AS TO THEIR RESPECTIVE RIGHTS FROM THEIR
COUNSEL. THIS AGREEMENT AND THE OTHER MODIFICATION DOCUMENTS ARE THE PRODUCT OF
NEGOTIATIONS AND PREPARATION BY AND AMONG EACH PARTY HERETO AND HIS, HER OR ITS
RESPECTIVE COUNSEL. THEREFORE, THE PARTIES HERETO ACKNOWLEDGE AND AGREE THAT
THIS AGREEMENT AND THE OTHER MODIFICATION DOCUMENTS SHALL NOT BE DEEMED PREPARED
OR DRAFTED BY ONE PARTY OR ANOTHER AND SHALL BE CONSTRUED ACCORDINGLY. EACH
PARTY TO THIS AGREEMENT HEREBY CONFIRMS AND ADMITS THAT SHE, HE OR IT HAS READ
AND UNDERSTANDS THIS AGREEMENT AND THE OTHER MODIFICATION DOCUMENTS AND THAT
SHE, HE OR IT HAS BEEN FULLY ADVISED AND REPRESENTED BY COUNSEL WITH RESPECT TO
THIS AGREEMENT AND THE OTHER MODIFICATION DOCUMENTS AND ALL NEGOTIATIONS GIVING
RISE TO IT, AND THAT SHE, HE OR IT HAS FULLY DISCUSSED THIS AGREEMENT AND THE
OTHER MODIFICATION DOCUMENTS AND THEIR TERMS, CONSEQUENCES AND RAMIFICATIONS
WITH HER, HIS OR ITS RESPECTIVE COUNSEL. THE PROVISIONS OF THIS SUBPARAGRAPH
SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT, AND THE TERMINATION OF THE
OPTION AGREEMENT.
(m) Limitation of AMB's Liability. Notwithstanding
anything to the contrary contained in the Termination Agreement as amended by
this Agreement or in the other Original Transaction Documents as amended by the
other Modification Documents, Nuvelo and Guarantor hereby agree that recovery
against AMB or any AMB Parties for any breach or other action arising out of the
Termination Agreement as amended by this Agreement or the Original Transaction
Documents as amended by the other Modification Documents shall be limited to
AMB's interest in the Property. The provisions of this subparagraph (m) shall
survive any termination of this Agreement, and the termination of the Option
Agreement.
(n) No Third Party Beneficiaries. All of the
understandings, covenants, and agreements contained herein are solely for the
benefit of AMB and Nuvelo and their respective successors and permitted assigns,
and no other person or party is intended to be benefited, in any way, by this
Agreement or the other Modification Documents. The provisions of this
subparagraph (n) shall survive any termination of this Agreement, and the
termination of the Option Agreement.
(o) Guarantor Consent. This Agreement and the other
Modification Documents shall be of no force or effect unless and until accepted
by the Guarantor and his spouse, who each by their signatures below consent to
the transactions contemplated by this Agreement and the other Modification
Documents, including without limitation, the termination of Nuvelo's Option to
purchase the Property and of the Option Agreement pursuant hereto, the extension
of the maturity date of the indebtedness evidenced by the Original Note and
revised payment terms and other revisions to the Original Note all as set forth
in the Amended and Restated Note, and the elimination of the letter of credit
and other security as security for the indebtedness evidenced thereby as
originally contemplated by the Option Agreement. However, in the event the
Effective Date never occurs hereunder or this Agreement is of no force or
effect, the Guarantor and his spouse, by their signatures below, each understand
that the Amended and Restated Note and the Amended and Restated Guaranty shall
be of no force or effect and the Original Note and the Original Guaranty shall
remain in full force and effect and in such event, they hereby reaffirm their
obligations under the Original Guaranty as if this Agreement and the other
Modification Documents had never been executed. The provisions of this
subparagraph (o) shall survive any termination of this Agreement and the
termination of the Option Agreement, and the consummation of the other
transactions contemplated hereby and by the other Modification Documents.
(p) No Other Modifications. Except as expressly modified
or amended by this Agreement or the other Modification Documents, the
provisions, conditions and terms of the Termination
[***] INDICATES THAT CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMMITTED AND
FILED SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 24B-2. CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMMITTED PORTIONS.
13
Agreement shall remain unchanged and in full force and effect. In the case of
any inconsistency between the provisions, conditions and terms of the
Termination Agreement on the one hand, and this Agreement and the other
Modification Documents on the other hand, the provisions of this Agreement and
the other Modification Documents shall govern.
(q) Time is of the Essence. TIME IS OF THE ESSENCE with
respect to all of the obligations and agreements under this Agreement and the
other Modification Documents.
[SIGNATURE PAGE FOLLOWS]
[***] INDICATES THAT CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMMITTED AND
FILED SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 24B-2. CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMMITTED PORTIONS.
14
IN WITNESS WHEREOF, the parties have executed this Amendment of
Termination Agreement and Termination of Option Agreement on the day and year
first above written.
AMB:
AMB PROPERTY, L.P., A DELAWARE LIMITED PARTNERSHIP
By: AMB PROPERTY CORPORATION, a Maryland
corporation, its general partner
By: ______________________________
Xxxx X. Xxxxx
Its: Vice President
NUVELO:
NUVELO, INC., A NEVADA CORPORATION, SUCCESSOR BY
MERGER TO HYSEQ, INC., A NEVADA CORPORATION
By: _____________________________
Name: Xxx X. Love, M.D.
Title: President and CEO
By: _____________________________
Name: Xxxxx Xxxxxx
Title: SVP and CFO
[SIGNATURES CONTINUE ON NEXT PAGE]
[***] INDICATES THAT CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMMITTED AND
FILED SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 24B-2. CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMMITTED PORTIONS.
15
GUARANTOR:
________________________________
XXXXXX XXXXXXXX
SSN #: [***]
The undersigned, the wife of Xxxxxx
Xxxxxxxx, hereby consents to the
foregoing Agreement and
acknowledges that such agreement
and the other documents entered
into by Xxxxxx Xxxxxxxx in
connection therewith creates
binding obligations of Xxxxxx
Xxxxxxxx and the undersigned, and
their individual, joint and
community assets.
SPOUSE OF GUARANTOR:
________________________________
XXXXXXX XXX XXXXXXXX
SSN #: [***]
[***] INDICATES THAT CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMMITTED AND
FILED SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 24B-2. CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMMITTED PORTIONS.
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EXHIBIT A
FORM OF QUITCLAIM DEED
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Steppe, Stone & Xxxxx LLP
000 Xxxxx Xxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Attn: Xxxx X. Xxxxxx
_______________________________________________________________________________
Space Above This Line For Recorder's Use
QUITCLAIM DEED AND TERMINATION OF OPTION
For good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, NUVELO, INC., a Nevada corporation, successor by merger
to Hyseq, Inc., a Nevada corporation ("Transferor"), hereby does remise,
release, and forever quitclaim to AMB PROPERTY, L.P., a Delaware limited
partnership ("Transferee"), all right, title and interest Transferor has in that
certain real property located in the City of Sunnyvale, County of Santa Xxxxx,
State of California, described in attached Exhibit A and incorporated herein by
reference (the "Property").
This Quitclaim Deed and Termination of Option (this "Quitclaim Deed")
is made with reference to the following facts:
A. Transferee and Transferor executed that certain Real Property
Option and Sale Agreement and Joint Escrow Instructions dated as of October 1,
2002 by and between Transferor and Transferee (the "Option Agreement"), whereby
Transferee granted Transferor an option to purchase the Property (the "Option").
The Option was evidenced of record by that certain Memorandum of Option,
executed by Transferee and Transferor, and recorded on title to the Property in
the Official Records of the County of Santa Xxxxx (the "Official Records") on
November 18, 2002 as Document No.16622221 (the "Memorandum of Option").
B. Transferor is the successor by merger to, and has succeeded to
all of the obligations, debts and liabilities of, Hyseq, Inc., a Nevada
corporation, including without limitation the rights and obligations of Hyseq,
Inc. under the Option Agreement.
C. Transferor has elected not to exercise the Option and not to
purchase the Property under the Option Agreement. Accordingly, the Option has
been terminated. The purpose of this Quitclaim Deed is to provide record notice
of the termination of the Option.
[***] INDICATES THAT CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMMITTED AND
FILED SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 24B-2. CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMMITTED PORTIONS.
1
NOW, THEREFORE, in consideration of the foregoing, Transferee and
Transferor hereby agree as follows:
1. Termination of Option. The Option and Option Agreement are
hereby terminated and of no further force and effect. As a result of such
termination of the Option Agreement, Transferor agrees that the Memorandum of
Option is of no further force and effect, that the Memorandum of Option shall be
deemed removed from record title to the Property and that Transferor no longer
has any claim nor holds any right, title or interest in the Property pursuant to
the Option Agreement or the Memorandum of Option.
2. Purpose of Quitclaim Deed. This Quitclaim Deed is prepared
solely for the purpose of providing record notice of the termination of the
Option. This Quitclaim Deed is intended to be fully consistent with the Option
Agreement and shall not be deemed to modify in any way the provisions of the
Option Agreement. Transferor is executing this Quitclaim Deed and authorizes
Transferee to record this Quitclaim Deed in the Official Records as evidence
that Transferor's right to purchase the Property pursuant to the Option
Agreement is terminated, which recordation may be accomplished without any
notice to Transferor or any action on the part of Transferor.
IN WITNESS WHEREOF, Transferor has executed this instrument as of May
___, 2003.
TRANSFEROR:
NUVELO, INC., successor by merger to Hyseq,
Inc., a Nevada corporation
By: ___________________________________
Name: _________________________________
Title: ________________________________
By: ___________________________________
Name: _________________________________
Title: ________________________________
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FILED SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 24B-2. CONFIDENTIAL
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2
STATE OF CALIFORNIA
COUNTY OF____________________________ss.
On this ___ day of ________________ , 20__ , before me, ______________________,
a Notary Public in and for the State of California, personally appeared
_____________________ personally known to me (or proved 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: _________________________________________________________
My commission expires on _____________________________________.
STATE OF CALIFORNIA
COUNTY OF______________________________________ss.
On this ___ day of ________________ , 20__ , before me, ______________________,
a Notary Public in and for the State of California, personally appeared
_____________________ personally known to me (or proved 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: ___________________________________
My commission expires on _____________________________________.
3
EXHIBIT A TO QUITCLAIM DEED
DESCRIPTION OF PROPERTY
Real property in the City of Sunnyvale, County of Santa Xxxxx, State of
California, described as follows:
Parcel 6, as shown on that certain Parcel Map filed in the office of the
Recorder of the County of Santa Xxxxx, State of California on November 9, 1976,
in Book 383 of Maps, page 19.
APN: 000-00-000
ARB: 110-03-062.04
A-1
EXHIBIT B
FORM OF AMENDED AND RESTATED PROMISSORY NOTE
AMENDED AND RESTATED PROMISSORY NOTE
$2,600,000 San Francisco, California
May 9, 2003
The undersigned, NUVELO, INC., a Nevada corporation, successor by
merger to Hyseq, Inc., a Nevada corporation ("Maker"), FOR VALUE RECEIVED,
promises unconditionally to pay AMB PROPERTY, L.P., a Delaware limited
partnership, or its successors or assigns ("Lender"), or to their order, the
principal sum of TWO MILLION SIX HUNDRED THOUSAND DOLLARS ($2,600,000) (the
"Loan") in lawful money of the United States of America, due and payable as
further provided herein. This Amended and Restated Promissory Note (this
"Note"), amends and restates in its entirety that certain Promissory Note dated
November 1, 2002 and made by Maker, as successor in interest to Hyseq, Inc., a
Nevada corporation, in favor of Lender in the original principal amount of
$2,600,000 (the "Original Note"). The entire outstanding principal balance
under, and all accrued and unpaid interest at the rate specified in, the
Original Note shall, from and after the date of this Note, be deemed outstanding
and owing by Maker to Lender under this Note.
(a) SECTION 1 PAYMENTS
1.1 Maturity. The then outstanding principal balance hereunder and
all charges, costs and expenses due hereunder shall be due and payable in full
on May 1, 2005 (such date, subject to acceleration as provided herein, is
referred to herein as the "Maturity Date").
1.2 Interest. Interest shall be charged on the outstanding
principal balance of this Note until all principal, interest and any other
amounts due hereunder have been paid in full, at the fixed interest rate of
eight percent (8.0%) per annum (the "Interest Rate"). Interest shall be
calculated on the basis of twelve (12) thirty (30) day months, except that
interest shall be calculated on the basis of the actual number of days elapsed
over a 360 day year.
1.3 Interest Payments. On the first day of each calendar month
during the term of this Note, commencing as of the first calendar month
following the date of this Note, Maker shall make monthly interest payments in
the amount of $17,333.33 per month. The outstanding principal balance of this
Note, together with all accrued and unpaid interest, shall be due and payable in
full on the Maturity Date.
1.4 Form of Payments. Payments hereunder shall be made in lawful
money of the United States of America by wire transfer of immediately available
funds, payable to the order of Lender, or to such agent for Lender, as Lender
may from time to time direct.
1.5 Application of Payments. Except as otherwise specified herein,
each payment or prepayment, if any, made under this Note shall be applied to pay
late charges, accrued and unpaid interest, principal, and any other fees, costs
and expenses which Maker is obligated to pay under this Note, in such order as
Lender may elect from time to time in its sole discretion.
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1.6 Tender of Payments. All payments on this Note are payable on
or before 2:00 p.m. on the due date thereof, at the office of Lender, as set
forth in Section 7 or by wire transfer of immediately available funds in
accordance with the wiring instructions attached hereto as Exhibit A, or in
accordance with such other instructions as may be provided by Lender from time
to time in writing to Maker, and shall be credited on the date the funds become
available lawful money of the United States of America. All sums payable to
Lender which are due on a day which is not a Business Day (defined below) shall
be paid on the next succeeding Business Day and such extended time shall be
included in the computation of interest.
1.7 Late Charge. In the event that any installment of interest
required to be made by Maker under this Note shall not be received by Lender
within five (5) days after its due date, Maker shall pay to Lender, on demand, a
late charge of the lesser of (a) five percent (5%) of such delinquent payment
and (b) the maximum amount permitted by law. The foregoing right is in addition
to, and not in limitation of, any other rights which Lender may have upon
Maker's failure to make timely payment of any amount due hereunder.
1.8 No Deductions from Payments of Principal and Interest. All
payments of principal and interest under this Note shall be made without
deduction from or in respect of any present or future taxes, levies, imposts,
deductions, charges or withholdings, which amounts shall be paid by Maker (other
than taxation of the overall net income of Lender). Maker will pay the amounts
necessary such that the gross amount of the principal and interest received by
Lender is not less than that required by this Note. If Maker shall be required
by law to deduct any such amounts (other than taxation of the overall net income
of Lender) from or in respect of any principal or interest payment under this
Note, then (a) the sum payable to Lender shall be increased as may be necessary
so that after making all required deductions (including deductions applicable to
additional sums payable under this provision) Lender receives an amount equal to
the sum it would have received had no deductions been made, (b) Maker shall make
such deductions, and (c) Maker shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with applicable
law. All stamp and documentary taxes shall be paid by Maker. If, notwithstanding
the foregoing, Lender pays such taxes, Maker shall immediately reimburse Lender
for the amount paid.
SECTION 2 DEFAULT
2.2 Event of Default. An "Event of Default" shall occur hereunder
in the event that:
2.1.1 Maker shall fail to make the full and punctual
payment of any monthly amount due under Section 1 of this Note, which failure is
not cured within five (5) days after the date due hereunder; or
2.1.2 Maker shall fail to pay the entire outstanding
principal balance hereunder on the date when due, whether on the Maturity Date,
upon acceleration or otherwise; or
2.1.3 Maker shall fail to make the full and punctual
payment of any costs and expenses due hereunder or any other sum of money
required to be paid hereunder (other than any payment described in Section 2.1.1
or 2.2.2), which failure is not cured on or before the tenth (10th) day after
written notice from Lender to Maker; or
2.1.4 Maker shall (i) become insolvent, (ii) make a
transfer in fraud of creditors, (iii) make an assignment for the benefit of its
creditors, or (iv) admit in writing its inability to pay its debts as they
become due; or
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2.1.5 any bankruptcy, reorganization, arrangement,
insolvency, or liquidation proceeding, or any other proceedings for the relief
of debtors, is instituted by or against Maker, and, if instituted against Maker,
is allowed, consented to, or not dismissed within the earlier to occur of (i)
ninety (90) days after such institution or (ii) the filing of an order for
relief; or
2.1.6 Maker shall cause or permit any default to occur
under the Conditional Lease Termination Agreement dated as of October 1, 2002 by
and among Maker, Lender and Xxxxxx Xxxxxxxx, an individual, as amended by the
Amendment of Termination Agreement and Termination of Option Agreement dated on
or about the date hereof (the "Amendment") (as so amended, the "Termination
Agreement") or any other Modification Documents (as defined in the Amendment);
or
2.1.7 any default, repudiation or attempted repudiation by
Xxxxxx Xxxxxxxx, an individual ("Guarantor"), under that certain Amended and
Restated Guaranty dated on or about the date hereof and made by Guarantor in
favor of Lender; or
2.1.8 the occurrence of any of the events specified in
Section 2.1.4 or 2.1.5 as to Guarantor.
2.2 Acceleration. Lender may, at its option exercisable in its
sole and absolute discretion by notice to Maker at any time following the
occurrence of an Event of Default, declare immediately due and payable the
entire principal amount outstanding hereunder together with all interest and
other amounts due hereunder.
2.3 Remedies. The remedies of Lender as provided herein and in the
other Modification Documents, or at law or in equity, shall be cumulative and
concurrent, and may be pursued singly, successively, or together at the sole
discretion of Lender, and may be exercised as often as occasion therefor shall
occur. The failure at any time to exercise any right or remedy shall not
constitute a waiver of the right to exercise the right or remedy at any other
time.
SECTION 3 DEFAULT RATE
From and after the occurrence of an Event of Default hereunder, overdue
payments of principal, interest and charges, costs and expenses hereunder shall
bear interest, from the date the same became due and payable, at a rate (the
"Default Rate") equal to the lesser of (a) the maximum rate allowed by the law
or (b) five percent (5%) plus the greater of (i) the Interest Rate or (ii) the
prime rate (for corporate loans at large United States money center commercial
banks) published in the Wall Street Journal on the first Business Day of the
month in which the Event of Default occurs or continues and on the first
Business Day of every month thereafter. The foregoing right is in addition to,
and not in limitation of, any other rights which Lender may have upon Maker's
failure to make timely payment of any amount due hereunder. The term "Business
Day" shall mean any day which is not a Saturday, Sunday, or federal legal
holiday, or a day on which commercial banks are not authorized or required by
law to close in the State of California.
SECTION 4 PREPAYMENT
Maker may make any prepayment of the outstanding principal balance of
this Note, in whole or in part, before the Maturity Date without premium penalty
or fee.
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SECTION 5 WAIVER
Maker shall pay to Lender all sums owing under this Note without
deduction, offset or counterclaim of any kind. Maker waives presentment; demand;
notice of dishonor; notice of default or delinquency; notice of acceleration;
notice of protest and nonpayment; notice of costs, expenses or losses and
interest thereon; and diligence on taking any action to collect any sums owing
under this Note. Presentation for payment, demand, notice of dishonor, protest,
and notice of protest, stay of execution and all other suretyship defenses to
payment generally are hereby waived by Maker. No extension or indulgence or
release of collateral granted from time to time shall be construed as a novation
of this Note or as a reinstatement of the indebtedness evidenced hereby or as a
waiver of the rights of Lender herein. Maker acknowledges that the provisions of
California Civil Code Section 2924(i) are not applicable to this Note and
expressly waives any rights thereunder.
SECTION 6 GOVERNING LAW; USURY SAVINGS CLAUSE
3. THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE SUBSTANTIVE LAWS OF THE STATE OF CALIFORNIA WITHOUT REGARD TO THE
APPLICATION OF CHOICE OF LAW PRINCIPLES, AND MAKER HEREBY CONSENTS TO THE
PERSONAL JURISDICTION OF ANY STATE COURTS OF THE STATE OF CALIFORNIA AND OF THE
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA HAVING
VENUE IN SAN FRANCISCO, CALIFORNIA, AND ALSO TO SERVICE OF PROCESS BY ANY MEANS
AUTHORIZED BY CALIFORNIA OR FEDERAL LAW, IN ANY ACTION THAT MAY BE COMMENCED BY
LENDER TO ENFORCE ITS RIGHTS HEREUNDER. IF ANY PROVISION OF THIS NOTE IS HELD TO
BE INVALID OR UNENFORCEABLE BY A COURT OF COMPETENT JURISDICTION, THE OTHER
PROVISIONS OF THIS NOTE SHALL REMAIN IN FULL FORCE AND EFFECT. SUBJECT TO THE
PRECEDING TWO SENTENCES, IT IS THE EXPRESS INTENTION OF MAKER AND LENDER TO
CONFORM STRICTLY TO ANY APPLICABLE USURY LAWS. ACCORDINGLY, ALL AGREEMENTS
BETWEEN MAKER AND LENDER, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER
WRITTEN OR ORAL, ARE HEREBY EXPRESSLY LIMITED SO THAT IN NO CONTINGENCY OR EVENT
WHATSOEVER, WHETHER BY REASON OF ACCELERATION OF THE MATURITY OF THIS NOTE OR
OTHERWISE, SHALL THE AMOUNT PAID OR AGREED TO BE PAID TO LENDER OR THE HOLDER OF
THIS NOTE FOR THE USE, FORBEARANCE OR DETENTION OF THE MONEY LOANED PURSUANT
HERETO OR OTHERWISE, OR FOR THE PAYMENT OR PERFORMANCE OF ANY COVENANT OR
OBLIGATION CONTAINED HEREIN OR IN ANY OTHER DOCUMENT EXECUTED IN CONNECTION
HEREWITH, EXCEED THE MAXIMUM AMOUNT PERMISSIBLE UNDER APPLICABLE LAW. IF, FROM
ANY CIRCUMSTANCE OR CONTINGENCY WHATSOEVER, FULFILLMENT OF ANY PROVISION HEREOF
OR OF ANY OTHER DOCUMENT EXECUTED IN CONNECTION HEREWITH, AT THE TIME
PERFORMANCE OF SUCH PROVISION SHALL BE DUE, SHALL INVOLVE TRANSCENDING THE LIMIT
OF VALIDITY PRESCRIBED BY LAW, THEN, IPSO FACTO, THE OBLIGATION TO BE FULFILLED
SHALL BE REDUCED TO THE LIMIT OF SUCH VALIDITY, AND IF FROM ANY SUCH
CIRCUMSTANCE OR CONTINGENCY LENDER SHALL EVER RECEIVE AS INTEREST OR OTHERWISE
AN AMOUNT WHICH WOULD EXCEED THE MAXIMUM RATE OF INTEREST PERMITTED BY
APPLICABLE LAW, THE AMOUNT OF SUCH EXCESS SHALL BE APPLIED TO A REDUCTION OF THE
INDEBTEDNESS EVIDENCED BY THIS NOTE, AND NOT TO THE PAYMENT OF INTEREST, AND IF
SUCH EXCESSIVE INTEREST EXCEEDS SUCH INDEBTEDNESS, THE AMOUNT OF SUCH EXCESSIVE
INTEREST SHALL BE REFUNDED TO MAKER. IF AT ANY TIME THIS NOTE PRESCRIBES A RATE
OF INTEREST IN EXCESS OF THE MAXIMUM RATE PERMITTED BY LAW, ALL SUMS PAID OR
AGREED TO BE PAID TO
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LENDER FOR THE USE, FORBEARANCE OR DETENTION OF THE MONEY LOANED PURSUANT TO
THIS NOTE SHALL BE AMORTIZED, PRORATED, ALLOCATED AND SPREAD THROUGHOUT THE FULL
TERM OF SUCH INDEBTEDNESS UNTIL PAYMENT IN FULL, SO THAT THE ACTUAL RATE OF
INTEREST ON ACCOUNT OF SUCH INDEBTEDNESS IS UNIFORM THROUGHOUT THE TERM HEREOF.
ANY PREPAYMENT OF THE OUTSTANDING PRINCIPAL BALANCE OF THE LOAN MADE PURSUANT TO
THE FOREGOING PROVISIONS SHALL BE WITHOUT ANY PREPAYMENT PENALTY OR PREMIUM.
SECTION 7 NOTICES
Any notice, election, communication, request, approval or other
document or demand required or permitted under this Note shall be in writing to
the respective addresses set forth below and may be delivered by personal
delivery, facsimile transmission during the normal business hours of the
recipient, an overnight delivery service, or U.S. mail sent certified with
return receipt requested. Notices are effective on the earlier of the date
received, the date of the delivery receipt (including the case of notice by
facsimile), or the third day after postmark, as applicable.
(a) To Maker, as follows: Nuvelo, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attn.: Xxxxx X. Xxxxxx
Tel: [***]
Fax: [***]
(b) To Lender, as follows: AMB Property, L.P.
Xxxx 0, Xxx 0
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn.: Xxxx X. Xxxxx
Tel: [***]
Fax: [***]
Either party may, from time to time, change the address at which such
written notices or elections, communications, requests or other documents or
demands are to be mailed, by giving the other party written notice of such
change, addressed in the manner hereinabove provided.
SECTION 8 MISCELLANEOUS
8.1 Costs of Collection; Attorneys' and Consultants' Fees. If this
Note is referred to an attorney for the collection of any sum payable hereunder,
or to defend or enforce any of Lender's rights hereunder, or as a consequence of
any Event of Default, with or without the filing of any legal action or
proceeding, Maker agrees to pay to Lender immediately upon demand, all costs and
expenses incurred by Lender in connection therewith (including reasonable
attorneys' fees and costs, and costs of any experts or other consultants' fees),
and in addition to all such costs and expenses, interest thereon from the date
of such demand until paid at the Default Rate.
8.2 Modification. Neither this Note nor any of the terms hereof
may be terminated, amended, supplemented, waived or modified orally, but only by
an instrument in writing executed by the party against which enforcement of the
termination, amendment, supplement, waiver or modification is sought.
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8.3 Successors. As used herein, the terms "Maker" and "Lender"
shall be deemed to include their respective successors and assigns whether by
voluntary action of the parties or by operation of law. All of the rights,
privileges and obligations hereof shall inure to the benefit of and bind any
such successors and assigns. Notwithstanding the foregoing, Maker's obligations
and liability under this Note may not be assigned or transferred in whole or in
part without the prior written consent of Lender, which consent may be withheld
in Lender's sole discretion.
8.4 No Waiver. No previous waiver and no failure or delay by
Lender in acting with respect to the terms of this Note shall constitute a
waiver of any breach, Event of Default or failure of condition under this Note.
A waiver of any term of this Note must be made in writing and shall be limited
to the express written terms of such waiver. In the event of any inconsistencies
between the terms of this Note and the terms of any other document related to
the loan evidenced by this Note, the terms of this Note shall prevail.
8.5 TRIAL BY JURY WAIVER. TO THE EXTENT PERMITTED BY LAW, EACH OF
MAKER AND (BY LENDER'S ACCEPTANCE HEREOF) LENDER HEREBY EXPRESSLY WAIVES ANY
RIGHT TO TRIAL BY JURY OF ANY ACTION, CAUSE OF ACTION, CLAIM, DEMAND OR
PROCEEDING ARISING UNDER OR WITH RESPECT TO THIS NOTE, OR IN ANY WAY CONNECTED
WITH, RELATED TO, OR INCIDENTAL TO THE DEALINGS OF MAKER AND LENDER WITH RESPECT
TO THIS NOTE OR THE TRANSACTIONS RELATED HERETO, IN EACH CASE, WHETHER NOW
EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT, TORT, OR
OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EACH OF MAKER AND LENDER
HEREBY AGREES THAT ANY SUCH ACTION, CAUSE OF ACTION, CLAIM, DEMAND, OR
PROCEEDING SHALL BE DECIDED BY A COURT TRIAL WITHOUT A JURY AND THAT EITHER
PARTY MAY FILE AN ORIGINAL COUNTERPART OF THIS SECTION WITH ANY COURT OR OTHER
TRIBUNAL AS WRITTEN EVIDENCE OF THE CONSENT OF MAKER TO THE WAIVER OF ITS RIGHT
TO TRIAL BY JURY.
(a) 8.6 Severability. Every provision of this Note is intended to
be severable. If any term or provision hereof is declared by a court of
competent jurisdiction to be illegal, invalid or unenforceable for any reason
whatsoever, such provision shall be adjusted, rather than voided, if possible,
to achieve the intent of the parties to the maximum extent possible; provided
that such illegality, invalidity or unenforceability shall not affect the
balance of the terms and provisions hereof, which terms and provisions shall
remain in full force and effect and shall be liberally construed in favor of
Lender.
(b) 8.7 Replacement Note. Upon receipt by Maker of written notice
from Lender of the loss, theft, destruction or mutilation of this Note, Maker
will execute and deliver to Lender, in lieu thereof, a replacement note in
identical form to this Note and dated as of the date of this Note; provided that
Lender shall indemnify Maker from and against any loss Maker may incur as a
result of Lender's having endorsed the original note to a third party (but not
to exceed the total monetary payments received by Lender with respect to the
Loan from and after the delivery of the replacement note) pursuant to a written
indemnification agreement acceptable to Lender and Maker. Upon delivery to
Lender of such replacement note, all references to this Note in the Guaranty and
any of the other Modification Documents shall be deemed to be references to such
replacement note.
(c) 8.8 Time of Essence. TIME IS OF THE ESSENCE with respect to
all of the obligations and agreements under this Note.
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(d) 8.9 Maker's Representations and Warranties. Maker hereby
represents and warrants to Lender as follows:
8.9.1 Maker is duly formed, validly existing and in good
standing under the laws of the State of Nevada and is qualified to do business
in and in good standing under the laws of the State of California.
8.9.2 Maker (a) is the successor by merger to, and has
succeeded to all of the obligations, debts and liabilities of, Hyseq, Inc., a
Nevada corporation, including without limitation the obligations of Hyseq, Inc.
under the Original Note; and (b) has not made any direct or indirect (whether by
operation of law or otherwise) disposition, assignment, sublease, conveyance or
other transfer of the its obligations under the Original Transaction Documents
(as defined in the Termination Agreement), as amended by the Modification
Documents.
8.9.3 Maker has the power and authority to enter into this
Note. Maker's representatives are duly authorized to execute and deliver this
Note on behalf of Maker and to generally perform Maker's obligations hereunder.
This Note does not violate any provision of any agreement or judicial order to
which Maker is a party or to which maker is subject.
8.9.4 Maker has not (a) made a general assignment for the
benefit of creditors, (b) filed any voluntary petition in bankruptcy or suffered
the filing of any involuntary petition by Maker's creditors, (c) suffered the
appointment of a receiver to take possession of all, or substantially all, of
Maker's assets, (d) suffered the attachment or other judicial seizure of all, or
substantially all, of Maker's assets, (e) admitted in writing its inability to
pay its debts as they come due, or (f) made an offer of settlement, extension or
composition to its creditors generally.
SECTION 9: SALE; ASSIGNMENT
Maker acknowledges that Lender shall have the right in its sole and
absolute discretion during the term of the Loan (i) to sell and assign all or
any portion of the Loan or participation interests in the Loan or (ii) to effect
a so-called securitization of the Loan, in each instance in such manner and on
such terms and conditions as Lender shall deem to be appropriate. Maker shall
cooperate, and shall cause each guarantor, indemnitor and other person
associated or connected with the Loan or the security therefor to cooperate, in
all reasonable respects with Lender, at Lender's expense, in connection with
such sale, assignment, participation or securitization, and shall, in connection
therewith, execute and deliver such estoppel certificates, instruments,
documents and opinions of counsel as may be reasonably requested by Lender;
provided that in no event shall any such certificates, instruments and documents
materially modify any of the terms or provisions of this Note or otherwise
increase Maker's obligations or liability hereunder other than in an immaterial,
non-economic manner which is reasonably necessary to effect the sale, assignment
or securitization. Maker grants to Lender, and shall cause each guarantor,
indemnitor and other person associated or connected with the Loan or the
security therefor to grant to Lender, the right to distribute on a confidential
basis financial and other information concerning Maker, each such guarantor,
indemnitor and other person and other pertinent information with respect to the
Loan, to any person who has indicated to Lender an interest in entering into
such sale, assignment or securitization of the Loan and to any rating agency or
consultant engaged in connection therewith. If Maker shall default in the
performance of its obligations under this Section 9, and if such default shall
not be remedied by Maker within ten (10) days after notice by Lender, Lender
shall have the right in its discretion, without further notice or demand, to
declare the Loan immediately due and payable.
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[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the undersigned has caused this Note to be duly
executed and delivered as of the date first set forth above.
MAKER:
NUVELO, INC., a Nevada corporation,
successor by merger to Hyseq, Inc.
By:_________________________________
Name: ______________________________
Title:______________________________
By:_________________________________
Name:_______________________________
Title:______________________________
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EXHIBIT A
WIRING INSTRUCTIONS
[***]
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A-1
EXHIBIT C
FORM OF AMENDED AND RESTATED GUARANTY
AMENDED AND RESTATED GUARANTY
THIS AMENDED AND RESTATED GUARANTY ("Guaranty") is made as of May 9,
2003 by XXXXXX XXXXXXXX, an individual ("Guarantor"), in favor of AMB PROPERTY,
L.P., a Delaware limited partnership ("Lender").
R E C I T A L S
A. Lender, as landlord, and Nuvelo, Inc., a Nevada corporation,
successor in interest to Hyseq, Inc., a Nevada corporation ("Borrower"), as
tenant, were parties to that certain lease dated as of June 23, 2000 (the
"Original Lease"), which Original Lease has been previously amended by that
certain First Amendment to Lease Agreement dated December 14, 2000
(collectively, the "Lease") relating to certain real property and improvements
located at 225, 249 and 000 Xxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxx (the
"Property"), all as more particularly described in the Lease.
B. Pursuant to that certain Termination Agreement dated as of
October 1, 2002 by and among Borrower, Lender and Guarantor (the "Termination
Agreement"), Lender and Borrower terminated the Lease.
C. In connection with the Termination Agreement, Lender and
Borrower also entered into that certain Real Property Option and Sale Agreement
and Joint Escrow Instructions dated as of October 1, 2002 (the "Option
Agreement") pursuant to which Lender granted to Borrower an option to purchase
the Property on the terms and conditions contained in the Option Agreement (the
"Option"). Borrower also executed, among other things, a Promissory Note dated
November 1, 2002 (the "Original Note") in the principal amount of $2,600,000 in
favor of Lender. Guarantor also executed a guaranty ("Original Guaranty") of
Borrower's obligations under the Original Note.
D. Borrower has elected not to exercise the Option, and Lender,
Borrower and Guarantor have entered into that certain Amendment of Termination
Agreement and Termination of Option Agreement dated on or about the date hereof
(the "Amendment to Termination Agreement"), whereby the parties have agreed,
among other things, to terminate the Option and the Option Agreement, and to
amend and restate the Original Note in its entirety in order to extend the
maturity date of the Original Note and to amend the payment terms required
thereunder.
E. Pursuant to the Amendment to Termination Agreement, Borrower
has executed or will execute in favor of Lender an Amended and Restated
Promissory Note dated on or about the date hereof (the "Note") in the original
principal amount of Two Million Six Hundred Thousand Dollars ($2,600,000). The
Note amends and restates in its entirety the Original Note. The Note, the
Termination Agreement, as amended by the Amendment to Termination Agreement, and
the other Modification Documents (as defined in the Amendment to Termination
Agreement) are collectively referred to herein as the "Transaction Documents".
F. This Guaranty amends and restates in its entirety the Original
Guaranty.
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THEREFORE, to induce Lender to enter into the Transaction Documents,
and in consideration thereof, the Original Guaranty is hereby amended and
restated in its entirety by this Guaranty and Guarantor unconditionally
guarantees and agrees as follows:
1. GUARANTY. Guarantor hereby guarantees and promises to pay to Lender
or order, on demand, in lawful money of the United States, in immediately
available funds, the principal amount of the Note, together with all accrued
interest, fees and charges on the entire principal amount of the Note. The
obligations of Borrower to Lender described in this Section 1 are sometimes
referred to herein as the "Obligations."
2. REMEDIES. If Guarantor fails to promptly perform its obligations
under this Guaranty, Lender may from time to time, and without first requiring
performance by Borrower, bring any action at law or in equity or both to compel
Guarantor to perform its obligations hereunder, and to collect in any such
action compensation for all loss, cost, damage, injury and expense sustained or
incurred by Lender as a direct or indirect consequence of the failure of
Guarantor to perform its obligations together with interest thereon at the
default rate of interest applicable to the principal balance of the Note, as
specified therein.
3. RIGHTS OF LENDER. Guarantor authorizes Lender, without giving notice
to Guarantor or obtaining Guarantor's consent and without affecting the
liability of Guarantor, from time to time to: (a) declare all sums owing to
Lender under the Note due and payable upon the occurrence of an Event of Default
(as defined in the Note); (b) take and hold security for the performance of
Borrower's obligations under the Note or the other Transaction Documents and
exchange, enforce, waive and release any such security; (c) make extensions in
the dates specified for payments of any sums payable in periodic installments
under the Note or any other Transaction Document; (d) apply such security and
direct the order or manner of sale thereof as Lender in its discretion may
determine; (e) release, substitute or add any one or more endorsers of the Note
or guarantors of Borrower's obligations under the Note or the other Transaction
Documents; (f) except as expressly directed by Borrower in writing to Lender
with respect to particular payments, apply payments received by Lender from
Borrower to any obligations of Borrower to Lender, in such order as Lender shall
determine in its sole discretion, whether or not any such obligations are
covered by this Guaranty; (g) assign this Guaranty in whole or in part; and (h)
assign, transfer or negotiate all or any part of the indebtedness guaranteed by
this Guaranty.
4. GUARANTOR'S WAIVERS. Guarantor waives: (a) any defense based upon
the death, incapacity, lack of authority or termination of existence of, or
revocation hereof by, any person or entity, or the substitution of any party
hereto, or any legal disability or other defense of Borrower, any other
guarantor or other person, or by reason of the cessation or limitation of the
liability of Borrower from any cause other than full payment of all sums payable
under the Note or any of the other Transaction Documents; (b) any defense based
upon any lack of authority of the officers, directors, shareholders or agents
acting or purporting to act on behalf of Borrower or any principal of Borrower
or any defect in the formation of Borrower or any principal of Borrower; (c) any
and all rights and defenses arising out of an election of remedies by Lender;
(d) any defense based upon Lender's or Borrower's failure to disclose to
Guarantor any information concerning Borrower's financial condition or any other
circumstances bearing on Borrower's ability to pay all sums payable under the
Note or any of the other Transaction Documents; (e) any defense based upon any
statute or rule of law which provides that the obligation of a surety must be
neither larger in amount nor in any other respects more burdensome than that of
a principal; (f) any defense based upon Lender's election, in any proceeding
instituted under the Federal Bankruptcy Code, of the application of Section
1111(b)(2) of the Federal Bankruptcy Code or any successor statute; (g) any
defense based upon any borrowing or any grant of a security interest under
Section 364 of the Federal Bankruptcy Code; (h) any right to enforce any remedy
which Lender may have against Borrower and any right to participate in, or
benefit from, any security for the Note or the other Transaction Documents now
[***] INDICATES THAT CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMMITTED AND
FILED SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 24B-2. CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMMITTED PORTIONS.
2
or hereafter held by Lender; (i) presentment, demand, protest and notice of any
kind; and (j) the benefit of any statute of limitations affecting the liability
of Guarantor hereunder or the enforcement hereof. Without limiting the
generality of the foregoing or any other provision hereof, Guarantor further
expressly waives for the period in which any of the Obligations remain
outstanding any and all rights and defenses which might otherwise be available
to Guarantor under California Civil Code Sections 2787 to 2855, inclusive, 2899
and 3433, or any of such sections. Finally, Guarantor agrees that the
performance of any act or any payment which tolls any statute of limitations
applicable to the Note or any of the Transaction Documents shall similarly
operate to toll the statute of limitations applicable to Guarantor's liability
hereunder.
5. GUARANTOR'S WARRANTIES. Guarantor warrants and acknowledges that:
(a) Lender would not enter into the Transaction Documents but for this Guaranty;
(b) there are no conditions precedent to the effectiveness of this Guaranty; (c)
Guarantor has established adequate means of obtaining from sources other than
Lender, on a continuing basis, financial and other information pertaining to
Borrower's financial condition and the status of Borrower's performance of
obligations under the Transaction Documents, and Guarantor agrees to keep
adequately informed from such means of any facts, events or circumstances which
might in any way affect Guarantor's risks hereunder and Lender has made no
representation to Guarantor as to any such matters; (d) the most recent
financial statements of Guarantor previously delivered to Lender are true and
correct in all material respects, and fairly present the financial condition of
Guarantor as of the respective dates thereof, and no material adverse change has
occurred in the financial condition of Guarantor since the respective dates
thereof; (e) Guarantor has not and will not, without the prior written consent
of Lender, sell, lease, assign, encumber, hypothecate, transfer or otherwise
dispose of all or substantially all of Guarantor's assets; (f) Guarantor has the
capacity and is legally competent to enter into this Guaranty and the other
Transaction Documents to which Guarantor is a party; (g) Borrower is the
successor by merger to, and has succeeded to all of the obligations, debts and
liabilities of, Hyseq, Inc., a Nevada corporation, including without limitation
the obligations of Hyseq, Inc. under the Original Transaction Documents (as
defined in the Amendment to Termination Agreement); (h) Guarantor has not made
any direct or indirect (whether by operation of law or otherwise) disposition,
assignment, sublease, conveyance or other transfer of its obligations under the
Original Transaction Documents; (i) this Guaranty and the other Transaction
Documents to which Guarantor is a party are legal, valid and binding upon
Guarantor, and are enforceable in accordance with their terms; (j) Guarantor
will benefit from the transactions contemplated hereunder and under the other
Transaction Documents; and (k) Guarantor has not done and is not contemplating
taking any of the following actions: (i) making a general assignment for the
benefit of creditors; (ii) filing any voluntary petition in bankruptcy or
suffered the filing of an involuntary petition by its creditors; (iii) suffering
the appointment of a receiver to take possession of all, or substantially, all
of its assets; (iv) suffering the attachment or other judicial seizure of all,
or substantially all, of its assets; (v) admitting in writing to its inability
to pay its debts as they become due; or (vi) making an offer of settlement,
extension or composition to its creditors generally.
6. SUBORDINATION. Guarantor subordinates all present and future
indebtedness owing by Borrower to Guarantor to the Obligations. Upon the
occurrence of an Event of Default (as defined in the Note), Guarantor agrees to
make no claim for such indebtedness until all Obligations have been fully
satisfied. Guarantor further agrees not to assign all or any part of such
indebtedness unless Lender is given prior notice and the assignee acknowledges
to Lender in writing that such indebtedness is subordinated to the Obligations
to the same extent as provided under the terms of this Guaranty. Upon the
occurrence of an Event of Default, any payment received by Guarantor on account
of such indebtedness shall be held in trust by Guarantor for Lender, and
forthwith paid over to Lender, until such time as the Obligations have been
satisfied in full.
[***] INDICATES THAT CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMMITTED AND
FILED SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 24B-2. CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMMITTED PORTIONS.
3
7. BANKRUPTCY OF BORROWER. In any bankruptcy or other proceeding
occurring during the period in which any of the Obligations remain outstanding
in which the filing of claims is required by law, Guarantor shall file all
claims which Guarantor may have against Borrower relating to any indebtedness of
Borrower to Guarantor and shall assign to Lender all rights of Guarantor
thereunder. If Guarantor does not file any such claim, Lender, as
attorney-in-fact for Guarantor, is hereby authorized to do so in the name of
Guarantor or, in Lender's discretion, to assign the claim to a nominee and to
cause proof of claim to be filed in the name of Lender's nominee. The foregoing
power of attorney is coupled with an interest and cannot be revoked. Lender or
its nominee shall have the right, in its reasonable discretion, to accept or
reject any plan proposed in such proceeding and to take any other action which a
party filing a claim is entitled to do. In all such cases, whether in
administration, bankruptcy or otherwise, the person or persons authorized to pay
such claim shall pay to Lender the amount payable on such claim unless and until
the Obligations have been satisfied in full and, to the full extent necessary
for that purpose, Guarantor hereby assigns to Lender all of Guarantor's rights
to any such payments or distributions; provided, however, Guarantor's
obligations hereunder shall not be satisfied except to the extent that Lender
receives cash by reason of any such payment or distribution. If Lender receives
anything hereunder other than cash, the same shall be held as collateral for
amounts due under this Guaranty. If all or any portion of the obligations
guaranteed hereunder are paid or performed, the obligations of Guarantor
hereunder shall continue and shall remain in full force and effect in the event
that all or any part of such payment or performance is avoided or recovered
directly or indirectly from Lender as a preference, fraudulent transfer or
otherwise under the Bankruptcy Code or other similar laws, irrespective of (a)
any notice of revocation given by Guarantor prior to such avoidance or recovery,
(b) full payment and performance of all of the indebtedness and obligations
evidenced by the Transaction Documents, or (c) Lender's surrender or
cancellation or exoneration of this Guaranty.
8. ADDITIONAL, INDEPENDENT AND UNSECURED OBLIGATIONS. This Guaranty is
a continuing guaranty of payment and not of collection and cannot be revoked by
Guarantor and shall continue to be effective with respect to any indebtedness
referenced in Section 1 hereof arising or created after any attempted revocation
hereof or after the death of Guarantor, in which event this Guaranty shall be
binding upon Guarantor's estate and Guarantor's legal representatives and heirs.
The obligations of Guarantor hereunder shall be in addition to and shall not
limit or in any way affect the obligations of Guarantor under any other existing
or future guaranties unless said other guaranties are expressly modified or
revoked in writing. This Guaranty is independent of the obligations of Borrower
under the Note and the other Transaction Documents. Lender may bring a separate
action to enforce the provisions hereof against Guarantor without taking action
against Borrower or any other party or joining Borrower or any other party as a
party to such action. This Guaranty is not secured and shall not be deemed to be
secured by any security instrument unless such security instrument expressly
recites that it secures this Guaranty.
9. ATTORNEYS' FEES; ENFORCEMENT. If any attorney is engaged by Lender
to enforce or defend any provision of this Guaranty or the Note, or as a
consequence of any default under the Note or this Guaranty with or without the
filing of any legal action or proceeding, Guarantor shall pay to Lender,
immediately upon demand all reasonable attorneys' fees and costs incurred by
Lender in connection therewith, together with interest thereon from the date of
such demand until paid at the default rate of interest applicable to the
principal balance of the Note as specified therein.
10. RULES OF CONSTRUCTION. The word "Borrower" as used herein shall
include both the named Borrower and any other person at any time assuming or
otherwise becoming primarily liable for all or any part of the obligation of the
named Borrower under the Note and the other Transaction Documents. The term
"person" as used herein shall include any individual, company, trust or other
legal entity of any kind whatsoever. If this Guaranty is executed by more than
one person, the term "Guarantor" shall include all such persons. When the
context and construction so require, all words used
[***] INDICATES THAT CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMMITTED AND
FILED SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 24B-2. CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMMITTED PORTIONS.
4
in the singular herein shall be deemed to have been used in the plural and vice
versa. All headings appearing in this Guaranty are for convenience only and
shall be disregarded in construing this Guaranty.
11. CREDIT REPORTS. Each legal entity and individual obligated under
and executing this Guaranty hereby authorizes Lender to order and obtain from
time to time, from a credit reporting agency of Lender's choice, a third party
credit report on such legal entity and individual.
12. GOVERNING LAW. This Guaranty shall be governed by, and construed
and enforced in accordance with, the laws of the State of California, except to
the extent preempted by federal laws. Guarantor and all persons and entities in
any manner obligated to Lender under this Guaranty consent to the jurisdiction
of any federal or state court within the State of California having venue in San
Francisco, California, and also consent to service of process by any means
authorized by California or federal law.
13. MISCELLANEOUS. The provisions of this Guaranty will bind and
benefit the estate heirs, executors, administrators, legal representatives,
nominees, successors and assigns of Guarantor and Lender. The liability of all
persons and entities who are in any manner obligated hereunder shall be joint
and several. If any provision of this Guaranty shall be determined by a court of
competent jurisdiction to be invalid, illegal or unenforceable, that portion
shall be deemed severed from this Guaranty and the remaining parts shall remain
in full force as though the invalid, illegal or unenforceable portion had never
been part of this Guaranty.
14. ENFORCEABILITY. Guarantor hereby acknowledges that: (a) the
obligations undertaken by Guarantor in this Guaranty are complex in nature, and
(b) numerous possible defenses to the enforceability of these obligations may
presently exist and/or may arise hereafter, and (c) as part of Lender's
consideration for entering into the transactions contemplated by the Transaction
Documents, Lender has specifically bargained for the waiver and relinquishment
by Guarantor of all such defenses, and (d) Guarantor has sought and received
legal advice from skilled legal counsel in the area of financial transactions of
the type contemplated herein. Given all of the above, Guarantor does hereby
represent and confirm to Lender that Guarantor is fully informed regarding, and
that Guarantor does thoroughly understand: (i) the nature of all such possible
defenses, and (ii) the circumstances under which such defenses may arise, and
(iii) the benefits which such defenses might confer upon Guarantor, and (iv) the
legal consequences to Guarantor of waiving such defenses. Guarantor acknowledges
that Guarantor makes this Guaranty with the intent that this Guaranty and all of
the informed waivers herein shall each and all be fully enforceable by Lender,
and that Lender is induced to enter into this transaction and the Transaction
Documents in material reliance upon the presumed full enforceability hereof and
thereof.
15. WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY TO THIS GUARANTY, AND
BY ITS ACCEPTANCE HEREOF, LENDER, HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY
JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (A) ARISING UNDER THIS
GUARANTY OR THE OTHER TRANSACTION DOCUMENTS, INCLUDING, WITHOUT LIMITATION, ANY
PRESENT OR FUTURE MODIFICATION HEREOF OR THEREOF OR (B) IN ANY WAY CONNECTED
WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF
THEM WITH RESPECT TO THIS GUARANTY OR THE OTHER TRANSACTION DOCUMENTS (AS NOW OR
HEREAFTER MODIFIED) OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR
DELIVERED IN CONNECTION HEREWITH OR THEREWITH, OR THE TRANSACTIONS RELATED
HERETO OR THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND
WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY AND LENDER
HEREBY AGREES AND CONSENTS THAT ANY PARTY TO THIS GUARANTY AND LENDER MAY FILE
AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH
[***] INDICATES THAT CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMMITTED AND
FILED SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 24B-2. CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMMITTED PORTIONS.
5
ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO AND LENDER TO
THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY. EACH PARTY HERETO AND LENDER
CONSENTS TO THE JURISDICTION OF ANY FEDERAL OR STATE COURT WITHIN THE STATE OF
CALIFORNIA HAVING VENUE IN SAN FRANCISCO, CALIFORNIA.
[SIGNATURE PAGE FOLLOWS]
[***] INDICATES THAT CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMMITTED AND
FILED SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 24B-2. CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMMITTED PORTIONS.
6
IN WITNESS WHEREOF, Guarantor has executed this Guaranty as of the date
appearing on the first page of this Guaranty.
GUARANTOR:
By: _________________________________
Xxxxxx Xxxxxxxx, an individual
SSN: ________________________________
c/o Nuvelo, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Tel: [***]
Fax: [***]
APPROVED AS TO FORM:
__________________________________________
Xxxx X. Xxxxx, Attorney for Guarantor
Xxxxxxx Coie LLP
0000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxxxx, 00000
Tel: [***]
Fax: [***]
CONSENT OF SPOUSE:
The undersigned, the wife of Xxxxxx Xxxxxxxx, hereby consents to the
foregoing Guaranty and acknowledges that such Guaranty creates binding
obligations on Xxxxxx Xxxxxxxx and the undersigned, and of their individual,
joint and community assets.
By: _______________________________
Xxxxxxx Xxx Xxxxxxxx
SSN: ______________________________
c/o Nuvelo, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Tel: [***]
Fax: [***]
[***] INDICATES THAT CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMMITTED AND
FILED SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 24B-2. CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMMITTED PORTIONS.
7
EXHIBIT D
ATTACH FORM OF ADDITIONAL WARRANTS
D-1
EXHIBIT E
REPAIR OBLIGATIONS
Nuvelo shall perform the following Work in the Premises in accordance with this
Exhibit E and Paragraph 6 of the attached Agreement.
1. Fill in holes and penetrations in concrete flooring which shall be doweled
to prevent ripping and shall be adequately tied into the existing
structural components of the building.
2. Rebuild and replace all bathroom cores.
3. Restore lighting distribution system and replace lighting fixtures,
sufficient to create a minimally acceptable illuminating level compatible
with the square footage of the Premises.
4. See additional highlighted items on SCHEDULE 1 attached hereto.
The Work shall be performed in a good and workmanlike manner, in
accordance with industry standards, by reputable contractors and subcontractors
reasonably acceptable to AMB who are licensed in California and who are bonded
pursuant to a surety bond in form and issued by a surety acceptable to AMB, in
an amount equal to not less than 150% of the total estimated cost of the work,
and in a manner so as not to unreasonably interfere with other tenants in the
building (if any) and otherwise reasonably acceptable to AMB.
All contractors performing any portion of the Work shall maintain
Commercial General Liability insurance covering bodily injury and property
damage liability occurring in or about the Premises and arising out of
performance of the Work. Such insurance shall have a minimum combined single
limit of liability of at least Three Million Dollars ($3,000,000) and shall name
AMB and AMB Property Corporation and AMB Property Capital Partners as an
additional insured.
AMB shall provide Nuvelo and Nuvelo's contractors reasonable access to
the Premises to perform the Work during the applicable time period for
performing the Work specified in Paragraph 6 of this Agreement. Such access
shall be during hours reasonably determined by AMB and in accordance with rules
and regulations as may be reasonably established by AMB and modified by AMB from
time to time.
Nuvelo hereby acknowledges that the use of the Premises by Nuvelo and
Nuvelo's employees, agents and contractors who perform the Work shall be at
their own risk and Nuvelo shall indemnify, defend by counsel reasonably
acceptable to AMB, protect and hold AMB and all other AMB Parties (as defined in
the Agreement) harmless from and against any and all claims, liabilities,
losses, costs, loss of rents, liens, damages, injuries or expenses, including,
without limitation, reasonable attorneys' fees and other professional fees,
which may be imposed upon, incurred by, or asserted against AMB or any AMB
Parties and arising out of or in connection with any damage or injury occurring
in connection with the Work.
Nuvelo agrees to provide 10 days' written notice to AMB prior to
commencement of any portion of the Work to enable AMB to file a Notice of
Non-Responsibility with respect to the Work.
[***] INDICATES THAT CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMMITTED AND
FILED SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 24B-2. CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMMITTED PORTIONS.
E-1
SCHEDULE 1 TO EXHIBIT E
ADDITIONAL REPAIR AND RESTORATION ITEMS
SEE HIGHLIGHTED ITEMS
SUITE AREA: 34,160
BUILDING AREA:
11,060 & 23,100
----------------------------------------------------------------------------------------------------------------------------
ACTIVITY QUANTITY UNIT UNIT PRICE COST BUDGET BUYOUT SUBCONTRACTOR'
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
DEMOLITION $12,500.00 $0.00
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
INCLUDING HVAC UNTIS, PIPING,
CONCRETE, ETC.
----------------------------------------------------------------------------------------------------------------------------
1 L/S 12500 12,500
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
RELOCATION $ 0.00 $0.00
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
RELOCATED DOORS/FRAMES 0 L/S 250 0
----------------------------------------------------------------------------------------------------------------------------
RELOCATE LIGHT FIXTURES 0 L/S 85 0
----------------------------------------------------------------------------------------------------------------------------
RELOCATE CABINETS 0 L/S 0 0
----------------------------------------------------------------------------------------------------------------------------
RELOCATE ELECT. PANELS 0 L/S 0 0
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----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
FRAMING/SKYLIGHT $79,550.00 $0.00
----------------------------------------------------------------------------------------------------------------------------
FRAMING FOR BI-FOLD DOOR 0 L/S 750 0
----------------------------------------------------------------------------------------------------------------------------
SEISMIC WORK TO BE FINISHED 1 ALLOW 25000 25,000
----------------------------------------------------------------------------------------------------------------------------
FRAMING & SHEATHING (STUCCO) 0 L/S 3500 0
----------------------------------------------------------------------------------------------------------------------------
ROOF REPAIRS @ OLD HVAC UNITS 1 L/S 9800 9,800
----------------------------------------------------------------------------------------------------------------------------
ROOF FRAMING @ OLD HVAC 1 L/S 8750 8,750
----------------------------------------------------------------------------------------------------------------------------
ROOF REPAIRS @ HVAC UNIT 10 EA. 900 9,000
----------------------------------------------------------------------------------------------------------------------------
SKYLIGHTS (4' X 6') 0 EA. 820 0
----------------------------------------------------------------------------------------------------------------------------
HVAC ROOF FRAMING (NEW) 10 EA. 2700 27,000
----------------------------------------------------------------------------------------------------------------------------
WALLS $17,750.00 $0.00
----------------------------------------------------------------------------------------------------------------------------
SHEET ROCK PERIMETER WALLS 0 L.F. 15 0
----------------------------------------------------------------------------------------------------------------------------
UNDER GRID WALLS TO 10' HIGH 0 L.F. 50 0
----------------------------------------------------------------------------------------------------------------------------
FULL HEIGHT WALLS 10' HIGH 210 L.F. 65 13,650
----------------------------------------------------------------------------------------------------------------------------
PLUMBING WALL 30 L.F. 45 1,350
----------------------------------------------------------------------------------------------------------------------------
CORRIDOR WALLS 0 L.F. 50 0
----------------------------------------------------------------------------------------------------------------------------
INSULATION (R 11) 2500 SF 0.5 1,250
----------------------------------------------------------------------------------------------------------------------------
REPAIR'S AT DEMOLITION 10 EA. 150 1,500
----------------------------------------------------------------------------------------------------------------------------
PROJ. SCREEN WALL 0 L.F. 45 0
----------------------------------------------------------------------------------------------------------------------------
RELOCATE PHONE BOARD 0 LOT 85 0
----------------------------------------------------------------------------------------------------------------------------
GLASS WALLS (SPECIAL) 0 SF 0 0
----------------------------------------------------------------------------------------------------------------------------
PROJECTION SCREEN SUPPORTS 0 E.A. 150 0
----------------------------------------------------------------------------------------------------------------------------
0 E.A. 0 0
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
DOORS AND HARDWARE $ 6,800.00 $0.00
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
INTERIOR DOOR'S (3'-0' X 7'0') 8 EA. 675 5,400
----------------------------------------------------------------------------------------------------------------------------
E-2
INTERIOR DOOR'S (6'0 X 7'0") 0 EA. 1100 0
---------------------------------------------------------------------------------------------------------------------
STD. CORRIDOR (FIRE RATED) 0 EA 650 0
---------------------------------------------------------------------------------------------------------------------
SLIDING POCKET DOOR 0 ALLOW 2750 0
---------------------------------------------------------------------------------------------------------------------
NEW DOCK DOORS 10' X 10' 0 XXX 000 0
---------------------------------------------------------------------------------------------------------------------
XXX XXXXX DOORS 12' X 15' 0 PR. 2010 0
---------------------------------------------------------------------------------------------------------------------
BY-FOLD DOORS 0 EA. 1100 0
---------------------------------------------------------------------------------------------------------------------
CLOSERS 8 EA. 175 1,400
---------------------------------------------------------------------------------------------------------------------
NEW GLASS ENTRY DOORS
(3' x 7') 0 EA. 1500 0
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
GLASS AND GLAZING $ 0.00 $0.00
---------------------------------------------------------------------------------------------------------------------
FIXED GLASS (6'-0" X 4'-0") 0 S.F. 18 0
---------------------------------------------------------------------------------------------------------------------
STORE FRONT GLASS 0 S.F. 18 0
---------------------------------------------------------------------------------------------------------------------
PASS THRU WINDOWS 0 EA. 400 0
---------------------------------------------------------------------------------------------------------------------
INTERIOR SIDE LIGHTS 0 S.F. 22 0
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
ELECTRICAL $59,895.00 $0.00
---------------------------------------------------------------------------------------------------------------------
STD FIXTURES (2' X 4') 0 EA. 235 0
---------------------------------------------------------------------------------------------------------------------
DUPLEX OUTLETS (120 VOLT) 16 EA. 95 1,520
---------------------------------------------------------------------------------------------------------------------
PHONE OUTLETS (PULL STRING) 0 EA. 30 0
---------------------------------------------------------------------------------------------------------------------
SINGLE SWITCHES 4 EA. 90 360
---------------------------------------------------------------------------------------------------------------------
EXIT LIGHTS 9 EA. 200 1,800
---------------------------------------------------------------------------------------------------------------------
SEPARATE CKTS. (120 VOLT) 7 EA. 225 1,575
---------------------------------------------------------------------------------------------------------------------
SEPARATE CKTS. (220 VOLT) 2 EA. 275 550
---------------------------------------------------------------------------------------------------------------------
SUBFEED PANEL (120/208) 2 EA. 750 1,500
---------------------------------------------------------------------------------------------------------------------
HVAC HOOK UPS 10 EA. 390 3,900
---------------------------------------------------------------------------------------------------------------------
EXHAUST FAN HOOK UPS 4 EA. 200 800
---------------------------------------------------------------------------------------------------------------------
WATER HEATER CONNECTIONS
2 EA. 120 240
---------------------------------------------------------------------------------------------------------------------
INCANDESCENT LIGHT FIXTURES
4 EA. 175 700
---------------------------------------------------------------------------------------------------------------------
400 AMP FEEDER'S (480 L.F.) 2 EA. 17800 35,600
---------------------------------------------------------------------------------------------------------------------
SUBFEED PANEL (277/480) 2 EA. 1400 2,800
---------------------------------------------------------------------------------------------------------------------
TRANSFORMERS 2 EA. 2250 4,500
---------------------------------------------------------------------------------------------------------------------
MOTION SENSOR 0 EA. 225 0
---------------------------------------------------------------------------------------------------------------------
WAREHOUSE LIGHTING (H-BAY) 9 EA. 450 4,050
---------------------------------------------------------------------------------------------------------------------
CEILING $22,722.40 $0.00
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
ACCOUSTICAL (2' X 4') T-BAR 0 SF. 2.65 0
---------------------------------------------------------------------------------------------------------------------
DRYWALL CEILING 480 SF. 5.35 2,568
---------------------------------------------------------------------------------------------------------------------
INSULATION (R-19) (XXX XXXXX) 00000 SF. 0.59 20154.4
---------------------------------------------------------------------------------------------------------------------
ACCOUSTICAL (2' X 2') 0 SF. 2.6 0
---------------------------------------------------------------------------------------------------------------------
VAULTED CEILING 0 SF. 3.75 0
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
PLUMBING $64,550.00 $0.00
---------------------------------------------------------------------------------------------------------------------
TOILET PARTITIONS 4 RMS. 450 1,800
---------------------------------------------------------------------------------------------------------------------
ROUGH-INS 19 EA. 1450 27,550
---------------------------------------------------------------------------------------------------------------------
SINKS/LAVS (KITCHEN/TOILET RM) 12 EA. 375 4500
---------------------------------------------------------------------------------------------------------------------
URINALS 2 EA. 175 350
---------------------------------------------------------------------------------------------------------------------
WATER CLOSETS 8 EA. 225 1,800
---------------------------------------------------------------------------------------------------------------------
HOT WATER HEATER 2 EA. 575 1,150
---------------------------------------------------------------------------------------------------------------------
FLOOR DRAINS 5 EA. 1120 5,600
---------------------------------------------------------------------------------------------------------------------
TOILET ACCESSORIES 4 RM. 725 2,900
---------------------------------------------------------------------------------------------------------------------
ADA SHOWER PER PLAN 1 EA. 5500 5,500
---------------------------------------------------------------------------------------------------------------------
MOP SINKS 2 EA. 1150 2,300
---------------------------------------------------------------------------------------------------------------------
WATER LINE EXTENTION 220 LF. 30 6,600
---------------------------------------------------------------------------------------------------------------------
E-3
REMOVE EXISTING PIPING - REPAIR 1 EA. 4500 4,500
---------------------------------------------------------------------------------------------------------------------
SPRINKLERS $ 7,105.00 $0.00
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
REWORK EXISTING SYSTEM 1 LOT 4580 4,580
---------------------------------------------------------------------------------------------------------------------
ADD NEW SPRINKLERS 9 EA. 225 2,025
---------------------------------------------------------------------------------------------------------------------
SYSTEM SHUTDOWN & PERMITS 1 L/S 500 500
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
CABINETS $ 0.00 $0.00
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
CONFERENCE ROOM CABINETS 0 LF. 0 0
---------------------------------------------------------------------------------------------------------------------
COUNTER TOP WORK W/SUPPORTS 0 LF. 125 0
---------------------------------------------------------------------------------------------------------------------
UPPER CABINETS 0 LF. 200 0
---------------------------------------------------------------------------------------------------------------------
LOWER CABINETS 0 LF. 225 0
---------------------------------------------------------------------------------------------------------------------
PASS THRU WINDOW SHELF 0 LF. 375 0
---------------------------------------------------------------------------------------------------------------------
WOOD PARTITION CAPS 0 LF. 20 0
---------------------------------------------------------------------------------------------------------------------
STORAGE SHELVING 0 LF. 12 0
---------------------------------------------------------------------------------------------------------------------
0 LF. 0 0
---------------------------------------------------------------------------------------------------------------------
0 LF. 0 0
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
WALL FINISH $ 6800.80 $0.00
---------------------------------------------------------------------------------------------------------------------
PAINT OFFICE WALLS 2500 SF. 0.4 1,000
---------------------------------------------------------------------------------------------------------------------
WALL COVERINGS 0 SF. 3265 0
---------------------------------------------------------------------------------------------------------------------
PAINT BATHROOMS 0 SF. 1 0
---------------------------------------------------------------------------------------------------------------------
PAINT GYPBOARD CEILINGS 0 SF. 0.5 0
---------------------------------------------------------------------------------------------------------------------
FRP PANELS 0 RMS. 450 0
---------------------------------------------------------------------------------------------------------------------
CERAMIC TILE 0 SF. 21 0
---------------------------------------------------------------------------------------------------------------------
PAINT PERIMETER WALLS 12288 SF. 0.35 4,301
---------------------------------------------------------------------------------------------------------------------
PAINT COLUMNS 20 EA. 75 1,500
---------------------------------------------------------------------------------------------------------------------
CONCRETE/ASPHALT $ 28,500.00 $0.00
---------------------------------------------------------------------------------------------------------------------
BACK-FILL TRENCHES 1 LOT 5500 5,500
---------------------------------------------------------------------------------------------------------------------
POUR BACK CONCRETE SLAB 1 LOT 23000 23,000
---------------------------------------------------------------------------------------------------------------------
SAW CUT OPENINGS 0 EA. 500 0
---------------------------------------------------------------------------------------------------------------------
PATIO SLAB (NATURAL) 0 SF. 4 0
---------------------------------------------------------------------------------------------------------------------
CONCRETE COLUMNS & PIERS 0 EA. 800 0
---------------------------------------------------------------------------------------------------------------------
STRUCTURAL STEEL 0 EA. 2200 0
---------------------------------------------------------------------------------------------------------------------
FLOOR COVERING $ 62,427.50 $0.00
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
BLD.STD.CARPET 0 SQYD 25 0
---------------------------------------------------------------------------------------------------------------------
UP-GRADE CARPET 0 SQYD 40 0
---------------------------------------------------------------------------------------------------------------------
VINYL COMP. TILE 0 SF. 1.25 0
---------------------------------------------------------------------------------------------------------------------
SHEET VINYL (TOILETS) 480 SF. 4.5 2160
---------------------------------------------------------------------------------------------------------------------
CARPET TILE 0 SF. 1755 0
---------------------------------------------------------------------------------------------------------------------
RUBBER BASE 250 LF. 1.95 487.5
---------------------------------------------------------------------------------------------------------------------
PARQUET WOOD FLOORING 0 SF. 9427 0
---------------------------------------------------------------------------------------------------------------------
CERAMIC TILE 0 SF. 21 0
---------------------------------------------------------------------------------------------------------------------
SCRUB & SEAL FLOOR (BEADED) 34160 SF. 1.75 59,780
---------------------------------------------------------------------------------------------------------------------
WINDOW COVERING $ 4,500.00 $0.00
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
DRAPES 0 LF. 0 0
---------------------------------------------------------------------------------------------------------------------
MINI BLINDS 1000 SF. 4.5 4,500
---------------------------------------------------------------------------------------------------------------------
MYLAR COATING 0 SF. 0 0
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
HV/AC $180,000.00 $0.00
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
MODIFY (E) DUCTWORK 0 LOT 1000 0
---------------------------------------------------------------------------------------------------------------------
NEW HVAC (PACKAGE UNITS) 90 TON 2000 180,000
---------------------------------------------------------------------------------------------------------------------
X-0
XXX XXX XXXXXX 0 XXX 0000 0
------------------------------------------------------------------------------------------------------------------------------------
FIRE/SMOKE DAMPERS 0 EA. 1500 0
------------------------------------------------------------------------------------------------------------------------------------
STATS.
------------------------------------------------------------------------------------------------------------------------------------
MISC. & SPECIAL EQUIP $ 9,150.00 $ 0.00
------------------------------------------------------------------------------------------------------------------------------------
REINSTALL (E) WORK SURFACES 0 LOT 680 0
------------------------------------------------------------------------------------------------------------------------------------
RE-ROOF/ROOF REPAIRS 0 SF. 1.6 0
------------------------------------------------------------------------------------------------------------------------------------
HIGH BAY W/H LIGHTING 0 EA. 750 0
------------------------------------------------------------------------------------------------------------------------------------
EXTERIOR WALL PACK LIGHTING 0 EA. 895 0
------------------------------------------------------------------------------------------------------------------------------------
CONCRETE WALKWAYS 0 SF. 5 0
------------------------------------------------------------------------------------------------------------------------------------
MICROWAVE OVENS & PLUGS 0 EA. 500 0
------------------------------------------------------------------------------------------------------------------------------------
FIRE EXTINGUISHERS 10 EA. 100 1,000
------------------------------------------------------------------------------------------------------------------------------------
REFRIGIRATOR AND PLUG 0 EA. 900 0
------------------------------------------------------------------------------------------------------------------------------------
ROLL-UP DOOR SERVICES 1 LOT 5000 5,000
------------------------------------------------------------------------------------------------------------------------------------
METAL CANOPY'S 0 SF. 35 0
------------------------------------------------------------------------------------------------------------------------------------
BALLARDS 6 EA. 400 2,400
------------------------------------------------------------------------------------------------------------------------------------
WROUGHT IRON FENCE 0 LF. 40 0
------------------------------------------------------------------------------------------------------------------------------------
WROUGHT IRON GATE W/ELECT. 0 EA. 4600 0
------------------------------------------------------------------------------------------------------------------------------------
JANITORIAL AND CLEAN-UP 1 L/S 750 750
------------------------------------------------------------------------------------------------------------------------------------
CHAIN LINK FENCE 0 L/S 21 0
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
SUBTOTALS $562,250.70 $ 0.00
------------------------------------------------------------------------------------------------------------------------------------
A & E FEES $ 0.00 BY OWNER
------------------------------------------------------------------------------------------------------------------------------------
GENERAL CONDITIONS 10 WKS $ 48,000.00 $ 0.00 V & M CONSTRUCTION
------------------------------------------------------------------------------------------------------------------------------------
PERMITS & FEES N/C $ 0.00 BY OWNER
------------------------------------------------------------------------------------------------------------------------------------
OVERHEAD AND PROFIT 5% $ 30,512.54 $ 0.00 V & M CONSTRUCTION
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
TOTAL COST TO AMB $640,763.24 $ 0.00
------------------------------------------------------------------------------------------------------------------------------------
$236,465.50
------------------------------------------------------------------------------------------------------------------------------------
TOTAL COST TO NUVELO REVISED TOTAL OF LIGHTING, SLAB REPAIR
$264.841.36 AND RR CORES
------------------------------------------------------------------------------------------------------------------------------------
EXCLUSIONS
------------------------------------------------------------------------------------------------------------------------------------
(1) RACK SPRINKLERS
------------------------------------------------------------------------------------------------------------------------------------
(2) FURNITURE & FURNISHINGS
------------------------------------------------------------------------------------------------------------------------------------
(3) SPECIAL EQUIPMENT
------------------------------------------------------------------------------------------------------------------------------------
(4) ANY SPECIAL CITY
REQUIREMENTS
------------------------------------------------------------------------------------------------------------------------------------
(5) COAX CABLE/CRT'S AND COMP.
------------------------------------------------------------------------------------------------------------------------------------
(6) ADA UP-GRADES NOT LISTED
------------------------------------------------------------------------------------------------------------------------------------
(7) TOXIC MATERIAL REMOVAL
------------------------------------------------------------------------------------------------------------------------------------
(8) ANY SECURITY SYSTEMS WORK
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
NOTES
------------------------------------------------------------------------------------------------------------------------------------
1) EXISTING CONCRETE SLAB TO BE
BEAD BLASTED AND ACRYLIC FLOOR
FINISH
------------------------------------------------------------------------------------------------------------------------------------
2) ALLOW 4 WEEKS FOR CITY PLAN
CHECK COMMENTS
------------------------------------------------------------------------------------------------------------------------------------
3) REUSE EXISTING SEISMIC
MATERIAL ON SITE
------------------------------------------------------------------------------------------------------------------------------------
E-5
