FIRST ADDENDUM TO LEASE DATED 2/15/88
By and Between
MIC FOUR POINTS, A CALIFORNIA, LIMITED PARTNERSHIP
and
XXXXXX BIOMEDICAL, INC.
This Addendum amends the above-described Lease as follows:
1. RENTABLE AREA OF PREMISES: The building equals 26,950 gross square
feet. However, the rent schedule in Paragraph 2 below shall apply to a
total square feet as detailed in the following:
Months Square Feet
------ -----------
(for rental rate to be applied to)
1-24 $23,950.00
25-120 $26,950.00
The schedule above details the square footage to be used in calculating
rent regardless of actual square footage occupied by Tenant. These
square footages are to be adjusted after final space plan is completed.
Square footage to be calculated based on BOMA methods for entire
building users. For months 1-24, square footage shall be 3,000 square
feet less than the adjusted final square footage.
2. RENT: The basic rent as defined in Section 3.1 of the Basic Lease
Information and Paragraph 3 of the lease shall be as follows (subject
to adjustment of final square footage):
Months Rate/Sq. Ft. Monthly Rent
------ ------------ ------------
1-6 $ .30 $ 7,185.00
7-24 $1.00 $23,950.00
25-60 $1.00 $26,950.00
61-96 $1.17 $31,531.50
97-120 $1.29 $34,765.50
The Rent for months 7-12 shall accrue and not be due and payable until
the 60th month of the Lease term except as otherwise provided as
follows: on the first day of the 60th month Landlord will waive the
accrued rent referred to above provided that there has been no prior
termination of this Lease and the Tenant is not then in default
hereunder.
The parties intend for the Term of this Lease to expire on the last day
of a full calendar month. Accordingly, if the Commencement Date is
other than on the first day of a full calendar month, thereby causing
Paragraph 2.1 to indicate an expiration date other than the last day of
a full calendar month, then the Term of this Lease shall be extended
until the last day of the full calendar month within which the
expiration date otherwise indicated by Paragraph 2.1 falls, and the
actual expiration date of the Term of this lease (the "Expiration
Date") shall be the last day of such full calendar month.
* For the purposes of the above detail, month number 1 shall be
defined as the first full calendar month during the Term of the Lease.
Any rent payable for a partial month before the first full calendar
month will be determined on a pro rate basis at the rate of $.83 per
square foot.
3. TERM: The Lease shall commence on August 1, 1988, except where Landlord
is responsible for delay of completion. A delay of completion by
Landlord shall be deemed to have occurred for every day greater than 98
days that elapses between the date permit is issued and the date
Certificate of Occupancy is received. Should such delay of completion
occur, the Lease Commencement Date shall be extended from August 1,
1988 by the number of days of said delay of completion.
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FIRST ADDENDUM TO LEASE
PAGE TWO
4. TENANT IMPROVEMENT ALLOWANCE: The Landlord shall enter into a
guaranteed maximum price contract with Xxxxxx Xxxxxxxx to construct the
tenant improvements per the plan specifications and working drawings
that will be mutually approved by Landlord and Tenant. Landlord shall
contribute up to, but not to exceed, $18.00 a square foot (per BOMA)
towards tenant improvement work. All costs associated with the tenant
improvements in excess of this sum shall be amortized and paid to
Landlord by Tenant at an interest rate of 12% per annum. The first two
dollars ($2.00) of tenant improvement work in excess of $18.00 per
square foot shall be amortized over the 120 months of the Lease Term.
All tenant improvement work in excess of $20 per square foot shall be
amortized over the first 60 months of the Lease Term. Such amortization
shall be added to the monthly rent and be due and payable under the
same schedule and penalties as those which apply to rent.
Should the tenant improvement work cost less than $18.00 per square
foot, Landlord shall pay to Tenant a share of the savings equal to
one-half of all savings. Landlord shall pay 50% of this share before
September 1, 1988 and the remainder before November 1, 1988.
5. Intentionally Omitted
6. OPTION TO PURCHASE: So long as Tenant is not in default hereunder,
Tenant is granted an Option to Purchase 0000 Xxxxxxxxxx Xxxxx and the
associated parcel upon which it is located at the time of such purchase
subject to completed and recorded parcelization of the property as
presented on page 6 of this First Addendum to Lease. The agreed upon
price for the building and property is $145 per gross square foot of
building, payable on close of the escrow provided herein. Tenant shall
notify Landlord of such exercise on or before, May 1, 1990 (the
"Notice"). Within three (3) business days after the giving of said
Notice, an escrow shall be opened at Chicago Title Company in San
Diego, California, or such other title insurance company as may then be
designated by Landlord and reasonably acceptable to Tenant. Escrow
shall be deemed open when the title company holds executed escrow
instructions, from both Landlord and Tenant. Concurrent with the
opening of escrow, Tenant shall deposit $55,000.00 cash or an
irrevocable letter of credit in form and from a financial institution
reasonably acceptable to Lessor in escrow to be applied to the purchase
price, said amount shall be deposited in an interest bearing account,
by the title company and all interest, earned thereon shall be held in
escrow and credited to Tenant.
Escrow shall close on a date to be specified by Landlord within one of
the following periods: (a) on or after May 15, 1991, but prior to
September 15, 1991; or (b) on or after September 15, 1991 but prior to
September 15, 1992. Such notice of the closing date shall be given to
Tenant and the title company by December 15, 1990.
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FIRST ADDENDUM TO LEASE
PAGE THREE
Landlord shall convey the premises to Tenant free and clear of all
monetary encumbrances other than those placed on the premises by Tenant
and current taxes and assessments. Landlord shall provide Tenant with a
CLTA policy of title insurance upon close of escrow. Escrow expenses
shall be allocated among Landlord and Tenant in accordance with the
chosen title company's standard procedures for similar type
transactions in San Diego County, California. Total price of property
shall be paid to Landlord in cash. Close of escrow shall be deemed to
occur on the date the grant deed from Landlord to Tenant is recorded in
the office of the San Diego County Recorder.
If Tenant fails to complete the purchase of the premises after giving
the Notice the Parties agree that Seller (Landlord) shall be entitled
to the sum of $50,000.00 as liquidated damages, which sum the parties
agree is a reasonable sum considering all of the circumstances existing
on the date of the Lease, including the relationship of the sum to the
range of harm to Seller that reasonably could be anticipated and the
anticipation that proof of actual damages would be costly or
inconvenient. In placing their initials at the places provided, each
party specifically confirms the accuracy of the statements made above
and the fact that each party was represented by counsel who explained
the consequences of this liquidated damages provision at the time this
Lease was made.
Landlord Tenant
Initials here: DRB Initial here: CT
Should Landlord wish to arrange for the sale of the premises by means
of a tax-deferred exchange with one or more third parties, Tenant
agrees to cooperate in completing said exchange provided that it incurs
no expense or liability in addition to that it would have incurred had
the transaction been completed as an outright sale to Tenant.
In addition, Tenant acknowledged Landlord's right to set up CC&R's and
appropriate easements which would govern over the entire Project, this
building inclusive.
If escrow fails to close due to Lessor's fault, Tenant shall have all
deposits made by it into escrow, and all interest earned thereon,
returned to it in full.
7. SALE OF PROPERTY OR TRANSFER OF TITLE: Notwithstanding any provisions
of Article 4 of the Lease to the contrary, the term "Taxes" shall not
include any increase in real property taxes attributable solely to a
transfer in title to the Building during the term of the Lease to a
party other than the Tenant (a "Non-Tenant Transfer"). The foregoing
shall not be construed so as to exclude from the definition of "Taxes"
any increases in real property taxes allocable to the Building as a
result of a reappraisal for any reason other than a Non-Tenant
Transfer.
8. FIRST RIGHT TO PURCHASE: Effective May 1, 1990, during the Term of the
Lease, Tenant has a one time Right of First Refusal to purchase the
building. If there shall be an immediate prospect to purchase the
building, Landlord shall give Tenant written notice thereof specifying
the terms of such a sale. On receipt of such notice, and provided
Tenant has not committed an act of default under this lease, Tenant
shall have the option of purchasing the building at the terms offered
by the Prospect. Tenant's Right of First Refusal shall be exercised by
written notice from Tenant to Landlord, given within five (5) business
days after receipt of notice from the Landlord. The failure of the
Tenant to exercise this option in the time period specified shall be
conclusively deemed a Waiver of Tenants's First Right to Purchase for
the remainder of the Lease Term.
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FIRST ADDENDUM TO LEASE
PAGE FOUR
9. ASSIGNMENTS: Not withstanding the provisions of Section 12.3 of the
Lease, Landlord hereby grants to Tenant the right to assign this Lease
or to subject the Premises in whole or in part to any entity controlled
by; controlling or under common ownership with Tenant so long as: (i)
Tenant provides Landlord with prior written notice of the identity and
notice address of such assignee or subtenant and, (ii) such assignee or
subtenant complies with the use provisions set forth in Section 6 of
this Lease.
10. DESTRUCTION: In the event that the damage as referred to in Section 16
of the Lease renders the building untenantable, Landlord shall inform
Tenant within 60 days of Landlord's intent to repair the damage or not.
If that repair or reconstruction is not concluded within a period of
one hundred eighty (180) days from date of damage, the Lease may be
terminated by Tenant without penalty.
11. SECURITY DEPOSIT: Landlord shall refund to Tenant any balance of the
security deposit in excess of twenty thousand dollars ($20,000) at the
conclusion of the third year of the Lease, provided the Tenant is not
currently and never has previously been in default of the Lease.
12. FIRST RIGHT OF REFUSAL: Landlord grants solely to Xxxxxx Biomedical,
Inc., while it is the Tenant, the Right of First Refusal on any vacant,
second generation space in the adjacent building, 0000 Xxxxxxxxxx
Xxxxx, during the Term of the Lease. Xxxxxx Biomedical, Inc. shall
respond in writing to Landlord within five (5) business days after
receipt of a written proposal from the Landlord offering the vacant
second generation space.
13. SIGNAGE: Landlord shall provide Tenant with exclusive signage rights on
the Building commonly known as 0000 Xxxxxxxxxx Xxxxx. The
specifications of such signage shall include: a) letters shall be no
more than two (2) feet in height, b) the signage will incorporate the
company name logo including the underline characteristic, c) the
signage will conform to the Xxxxxx Biomedical, Inc. corporate blue
color, d) signage shall be permitted on the north and east sides of the
building, e) illumination of the sign shall be permitted, and the
consideration of back lighting shall not be excluded, and f) signage
shall be located on the Building at the location to be specified by
Tenant. In addition, Landlord shall provide Tenant with shared rights
on the monument sign in front of 0000 Xxxxxxxxxx Xxxxx. The name Xxxxxx
Biomedical, Inc. and the name Xxxxx Laboratories, Inc. Shall receive
preferential display at the top of any listing placed upon the monument
sign. Said monument signage shall be located at a location to be
designated and mutually agreed to by Landlord and Tenant and all Tenant
signage shall be constructed and installed at Tenant's expense in
accordance with plans and specifications to be approved by Landlord.
14. MISCELLANEOUS: Except as expressly provided hereinabove, all other
terms and conditions of the Lease shall apply herein and remain in full
force and effect. In the event of any conflict between the terms of
this Addendum and those of the Lease, the terms of this Addendum will
be deemed to have superseded those of the Lease and exclusively will
govern the matter in question.
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FIRST ADDENDUM TO LEASE
PAGE FIVE
IN WITNESS WHEREOF, this Addendum to Lease is duly executed as of the day and
year first hereinabove written.
LANDLORD TENANT
MIC FOUR POINTS, XXXXXX BIOMEDICAL, INC.
a California limited partnership
By: /s/ D. Xxx Xxxx By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------- --------------------------
By its Managing General Partner President
March 31, 1988 March 25, 1988
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Date Date
[PARCEL DIAGRAM]
