OPTION AGREEMENT
----------------
between
XXXXXX X. XXXXXXX, XX.,
("Seller")
and
CHIRON CORPORATION
("Buyer")
OPTION AGREEMENT
----------------
THIS OPTION AGREEMENT ("Agreement") is entered as of January 1, 1995
("Effective Date") by and between XXXXXX X. XXXXXXX, XX., an individual
("Seller"), and CHIRON CORPORATION, a Delaware corporation ("Buyer").
THE PARTIES ENTER THIS AGREEMENT on the basis of the following facts,
understandings and intentions of the parties:
A. Seller is owner of the real property more particularly described on
EXHIBIT A, attached hereto, together with all improvements thereon, including
the buildings known as Buildings "M" and "G", and all appurtenances thereto
(collectively, the "Property"). The Property is more particularly described
in the Lease (as defined in Recital B).
B. Buyer (as successor to Cetus Corporation) currently leases the
Property from Seller pursuant to a lease agreement ("Original Lease") dated
as of July 1, 1983, as amended by (i) the Amendment to Lease ("First
Amendment to Lease") dated as of March 20, 1990, and (ii) the Second
Amendment to Lease dated as of January 1, 1995. The Original Lease, as
amended by the First Amendment to Lease and the Second Amendment to Lease, is
hereinafter referred to as the "Lease". A copy of the Lease is attached
hereto as EXHIBIT B.
C. Buyer desires to obtain an option ("Option") to purchase the
Property from Seller, and Seller is willing to grant to Buyer an Option to
purchase the Property, upon all of the terms, covenants and conditions of
this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and promises of
the parties, the parties hereto agree as follows:
1. GRANT OF OPTION. Seller grants to Buyer the Option to purchase
the Property on the terms of this Agreement.
2. OPTION TERM. The term of the Option ("Option Term") shall be five
(5) years, commencing as of the Effective Date. There shall be no
extension of the Option Term except by a written executed agreement by
Seller and Buyer.
3. CONSIDERATION.
a. OPTION PAYMENT; SECOND AMENDMENT TO LEASE.
As consideration for the Option, Buyer shall pay Seven Hundred Fifty
Thousand Dollars ($750,000.00) ("Option Payment") to Seller.
1.
b. TIME OF PAYMENT. The Option Payment shall be made within five
(5) days after (i) execution of the Second Amendment to Lease (to the extent
not previously executed); (ii) execution of this Agreement by Seller and
Buyer; and (iii) recordation of the Memorandum of Option (as provided in
Section 18.a), which shall be recorded by Buyer within five (5) days after
the last execution of the documents referred to in Sections (i) and (ii) of
this Section 3.b.
c. OPTION PAYMENT EARNED. The Option Payment shall be deemed
earned in full upon (i) execution of this Agreement, (ii) execution of all
documents required to be executed concurrently with execution of this
Agreement, and (iii) completion of all of the items listed in Section 3.b.
d. RETENTION OF OPTION CONSIDERATION. If Buyer fails to exercise
the Option, Seller shall retain the Option Payment.
e. APPLICATION OF OPTION PAYMENT. If the Option is exercised, the
Option Payment shall be applied as a credit against the Purchase Price.
4. EXERCISE.
a. EXERCISE NOTICE. If not then in breach of this Agreement, Buyer
shall have the right to exercise the Option prior to the expiration of the
Option Term by delivering a written notice ("Exercise Notice") to Seller by
registered mail or personal delivery stating that Buyer desires to close
Escrow (as hereinafter defined). The date of the closing of Escrow shall be
determined by Seller in accordance with the terms of Section 11.a.
b. AGREEMENT FOR PURCHASE AND SALE. Upon the exercise of the
Option, this Agreement shall become a contract for the purchase and sale of
the Property, and Buyer shall thereupon agree to buy and Seller shall
thereupon agree to sell the Property, upon all of the terms, covenants and
conditions set forth in this Agreement.
c. EXTENSION OF LEASE. If Buyer delivers the Exercise Notice and
the close of Escrow is to occur after the date the Lease would have expired
if there were no further extension, Optionee shall be deemed to have
exercised the right to extend the Lease for a period of two (2) years (I.E.,
from July l, 2000 to June 31, 2002). Extension of the Lease pursuant to this
Section 4.c shall not be affected if close of Escrow does not occur.
2.
5. PURCHASE PRICE.
a. AMOUNT. If the Option is exercised, Buyer shall deliver to
Chicago Title Insurance Company ("Escrow Agent") prior to the close of Escrow
("Close of Escrow") cash or other readily available funds in the amount of
Ten Million Five Hundred Thousand Dollars ($10,500,000.00) ("Purchase
Price"), subject to any adjustment pursuant to Section 5.c, reduced by
credits for (i) the amount of the Option Payment; and (ii) amounts necessary
to remove any liens against the Property, other than the Permitted Exceptions
(as hereinafter defined), which are caused by Seller.
b. CPI. For purposes of this Section 5, the "CPI" shall mean the
Consumer Price Index (CPI) for All Urban Consumers, All Items, for the Xxx
Xxxxxxxxx-Xxxxxxx Xxxxxxxxxxxx Xxxx (0000-00 = 100), as published by the
Bureau of Labor Statistics of the United States Department of Labor
("Bureau"). If the Bureau discontinues publication of the CPI, publishes the
CPI less frequently, or alters the CPI in any manner, Buyer shall adopt a
substitute CPI procedure which Buyer and Seller feel reasonably reflects and
monitors the consumer prices.
c. CPI ADJUSTMENT. The Purchase Price shall increase by the
percentage increase in the CPI in excess of five percent (5%) per annum from
the date of this Agreement to the date of the Exercise Notice. For example,
(i) if the period between the date of this Agreement and the date of the
Exercise Notice is four (4) years, and (ii) the CPI increases by twenty-three
percent (23%) during the four (4) year period, then the Purchase Price shall
increase by three percent (3%) to Ten Million Eight Hundred Fifteen Thousand
Dollars ($10,815,000.00).
6. REPRESENTATIONS OF SELLER. Seller hereby makes the following
representations and warranties for the benefit of Buyer (which
representations are made by Seller as of both the date of this Agreement and
as of the Closing Date):
a. NO ADDITIONAL LEASES. Except for the Lease, (i) there are no
leases of all or any portion of the Property, and (ii) Seller has not
entered, nor is Seller aware that any other person or entity other than Buyer
has entered, any other agreements affecting the occupancy of the Property.
b. NO LITIGATION. Except as described in Exhibit C, attached
hereto, there are no civil, governmental, quasi-governmental or
administrative investigations, actions, suits, proceedings or claims pending
or, to the best of Seller's knowledge, threatened against or affecting Seller
or the Property (including the use, occupancy, operation or value of the
3.
Property). Seller does not know of any basis for any such investigations,
actions, suits, proceedings or claims.
c. OWNERSHIP OF PROPERTY. Seller is the owner of the Property and
has the authority, acting alone, to enter this Agreement and to convey title
to the Property in accordance with this Agreement.
d. NO ADDITIONAL REPRESENTATIONS. Seller makes no warranties
whatsoever except those specifically set forth in this Agreement.
7. INSPECTIONS.
a. INSPECTION RIGHTS. During the Option Period, Buyer shall have
the right to conduct any and all studies, tests (including environmental
tests) and inspections that Buyer deems appropriate to determine the
condition and status of the Property.
b. WAIVER BY BUYER. Purchase of the Property pursuant to
exercise of the Option by Buyer shall constitute a waiver by Buyer of any
defects in either the title or the physical condition of the Property
(including the improvements comprising part of the Property). Purchase of
the Property pursuant to exercise of the Option constitutes acceptance by
Buyer of the Property in an "as is" condition.
8. COOPERATION OF SELLER.
a. RIGHT OF BUYER. During the Option Term, Buyer shall have the
right to apply for and obtain all Approvals (as defined below) relating to
the Property which Buyer desires from governmental agencies,
quasi-governmental agencies, and other entities and persons having authority
over the Property. The Approvals may relate to Buyer's plans to develop the
Property, together with other property located near the Property, with a new
life science facility. To the extent requested by Buyer, Seller shall assist
Buyer in obtaining the Approvals.
b. SCOPE OF ASSISTANCE. Seller's assistance shall include
execution of all applications for Approvals which Buyer requests Seller to
execute and, when required by the City of Emeryville ("City"), recordation
against the Property of any Approvals obtained by Buyer for development of
the Project.
c. APPROVALS. The Approvals may include (i) a development
agreement; (ii) a participation agreement under redevelopment law; (iii) a
vesting tentative map and any final subdivision maps pursuant to the vesting
tentative map; (iv) a
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planned unit development and other zoning approvals; and (v) a General Plan
amendment.
d. REIMBURSEMENT OF SELLER. For time spent at Buyer's request, in
activities necessary for Buyer to obtain the Approvals, Seller shall be
entitled to (i) Two Hundred Dollars ($200.00) per hour and (ii) reimbursement
for reasonable out-of-pocket costs and expenses incurred by Seller. Buyer
shall notify Seller before Buyer commences activities for which Seller will
seek payment or reimbursement totalling more than Two Thousand Dollars
($2,000.00).
e. OBLIGATION OF BUYER. Buyer shall indemnify Seller against any
net reduction in the value of the Property, or net increase in the costs paid
by Seller, resulting from the conditions imposed against the Property
pursuant to the Approvals if (i) the Approvals reduce the value of the
Property and (ii) for any reason other than default by Seller, Buyer does not
exercise the Option and purchase the Property.
9. TITLE ISSUES.
a. PERMITTED EXCEPTIONS. For purposes of this Agreement, the
term "Permitted Exceptions" shall mean (i) the exceptions to title recorded
against the Property as of January 12, 1995, as shown in the Preliminary
Report (Order No. 105494), dated as of January 12, 1995 and issued by Chicago
Title Company of Alameda County, a copy of which is attached hereto as
EXHIBIT D, exclusive of the deed of trust ("Home Savings Deed of Trust") for
the benefit of Home Savings of America, F.A. ("Home Savings"), and (ii) any
exceptions created by Buyer after the Effective Date.
b. DEED. Seller shall convey title to the Property to Buyer by a
standard grant deed ("Deed").
c. TITLE POLICY. At the Close of Escrow, Title Company shall
issue to Buyer, upon payment of Title Company's regularly scheduled premium,
an ALTA owner's extended coverage policy of title insurance ("Title Policy"),
in the amount of the Purchase Price, showing title vested in Buyer, subject
only to the Permitted Exceptions and the standard printed exceptions in the
Title Policy. The Title Policy shall contain such endorsements as Buyer
desires.
10. ESCROW. Buyer shall establish the escrow ("Escrow") for the close
of this transaction at the office of Title Company after Buyer delivers the
Exercise Notice. Prior to the Close of Escrow, the parties shall deposit the
following funds and documents into Escrow, and Title Company shall close
Escrow as provided below.
5.
a. SELLER. Seller shall deposit into Escrow the following:
(i) DEED. The duly executed and acknowledged Deed;
(ii) NON-FOREIGN CERTIFICATE. A duly executed certificate
("Non-Foreign Certificate") from Seller certifying that Seller is not a
"foreign person" within the meaning of Section 1445(f)(3) of the Internal
Revenue Code ("Code"), to the extent Seller is so qualified;
(iii) SELLER'S CERTIFICATE. A duly executed certificate from
Seller stating that the warranties and representations of Seller which are
made under this Agreement are valid as of the Closing Date;
(iv) RECONVEYANCE DOCUMENTS. All documents necessary to
reconvey any mortgages and deeds of trust that are then of record against the
Property ("Deeds of Trust"); and
(v) FUNDS. All funds necessary to reconvey the Deeds of
Trust to the extent (A) the proceeds due to Seller upon the sale are
insufficient to pay off all of the obligations secured by the Deeds of Trust
and (B) the Deeds of Trust are secured by Seller's (and not Buyer's) interest
in the Property.
b. BUYER: Buyer shall deposit into Escrow the following:
(i) PURCHASE PRICE. The Purchase Price, subject to the
adjustments described in Section 5 (and possible credits under Sections 12
and 13); and
(ii) ADDITIONAL CASH. Additional cash in the amount necessary
to pay all Escrow costs and prorations, as hereinafter set forth.
11. CLOSE OF ESCROW.
a. CLOSING DATE. Close of Escrow ("Close of Escrow") shall occur
on the date ("Closing Date") determined by Seller; provided that (i) the
Closing Date shall be within one (1) year after the date of the Exercise
Notice, (ii) the Closing Date shall not be less than six (6) months after the
date of the Exercise Notice and (iii) Seller shall give Buyer not less than
forty-five (45) days' prior written notice of the Closing Date. When Title
Company is in a position to issue the Title Policy and all documents and
funds have been deposited with Title Company, Title Company shall close
Escrow as provided below. The failure
6.
of Seller or Buyer to be in a position to close Escrow by the Closing Date
shall be a default under this Agreement.
b. PROCEDURE. Title Company shall close Escrow as follows:
(i) RECORD DEED. Record the Deed and deliver the Deed to
Buyer;
(ii) DELIVER PURCHASE PRICE. Deliver the Purchase Price to
Seller by federal wire transfer or cashier's check, or as instructed by
Seller, reduced by the credits to Buyer described in Section 5 (and possible
credits under Sections 12 and 13) and Seller's share of costs and prorations
as provided below; and
(iii) DELIVER TITLE POLICY. Deliver the Title Policy to Buyer.
c. COSTS AND PRORATIONS.
(i) CLOSING COSTS. Buyer and Seller each shall pay its own
attorneys' fees. Buyer shall pay all Escrow fees, recording costs, title
insurance premiums and documentary transfer taxes.
(ii) PRORATIONS. Real estate taxes and assessments (both
principal and interest) shall be the obligation of Chiron.
d. INCORPORATION. The parties shall execute for the benefit of
Title Company such additional Escrow instructions as Title Company shall
require, provided that the additional Escrow instructions do not modify or
alter the terms of this Agreement.
12. EMINENT DOMAIN.
a. CREDIT OR ASSIGNMENT OF PROCEEDS. If there is an exercise of
the power of eminent domain by a governmental agency in regard to all or any
portion of the Property, all the proceeds from the eminent domain action
(with interest at the rate of five percent (5%) per annum from the date the
proceeds are received by Seller to the Closing Date) shall be credited
against the Purchase Price (subject to the limitation in Section 12.b). If
the proceeds from the eminent domain action have not been paid to Seller as
of the Closing Date, Seller shall assign to Buyer all rights to the proceeds
(subject to the limitation in Section 12.b), including the sole right to
settle or approve the settlement of any eminent domain action.
7.
b. LIMITATION ON CREDIT OR ASSIGNMENT. The maximum amount of the
proceeds credited to the Purchase Price or assigned by Seller to Buyer under
Section 12.a shall be the Purchase Price, with Seller to retain the right to
receive the balance of the proceeds, unless Buyer delivers the Exercise
Notice to Seller prior to expiration of the Option Term.
13. DAMAGE AND DESTRUCTION.
a. CREDIT OR ASSIGNMENT OF INSURANCE PROCEEDS. If there is damage
or destruction of all or any portion of the Property, all of the insurance
proceeds paid to Seller in connection with the restoration of the Property
(with interest at the rate of five percent (5%) per annum from the date the
insurance proceeds are received by Seller to the Closing Date) shall be
credited against the Purchase Price (subject to the limitation in Section
13.b). If the insurance proceeds have not been paid as of the Closing Date,
Seller shall assign to Buyer all the rights to the insurance proceeds
(subject to the limitation in Section 13.b), including the sole right to
settle or approve the settlement of any action against the insurer.
b. LIMITATION ON CREDIT OR ASSIGNMENT. The maximum amount of the
insurance proceeds credited to the Purchase Price or assigned by Seller to
Buyer under Section 13.a shall be the Purchase Price, with Seller to retain
the right to receive the balance of the insurance proceeds, unless Buyer
delivers the Exercise Notice to Seller prior to expiration of the Option Term.
14. TAX DEFERRED EXCHANGE.
a. COOPERATION; INDEMNITY. To the extent requested by Seller,
Buyer shall cooperate with Seller in effecting the transfer of the Property
as an exchange in accordance with Section 1031 of the Code. Seller shall
indemnify, defend, protect and hold harmless Buyer for all costs, expenses,
liabilities and claims arising out of the exchange. Any such exchange shall
not delay the Close of Escrow, require Buyer to incur any additional costs or
expenses (except as provided in Section 14.b), or require Buyer to take title
to any replacement property for the benefit of Seller.
b. REIMBURSEMENT BY SELLER. Seller shall reimburse Buyer for all
additional costs and expenses resulting from Seller effecting the transfer
of the Property as an exchange under Section 1031 of the Code (I.E., costs
and expenses in addition to the costs and expenses Buyer would have incurred
if the transfer were a sale). Buyer shall not incur in excess of Five
Thousand Dollars ($5,000.00) of additional costs and expenses for which Buyer
will seek reimbursement from Seller without Seller's prior consent.
8.
15. BROKERAGE COMMISSION. Buyer and Seller each warrants for the
benefit of the other that no brokerage commission or finder's fee shall be
due with respect to the sale of the Property by Seller to Buyer other than
the fees due from Buyer to AMB Corporate Real Estate Advisors, Inc. ("AMB")
under a separate agreement for services performed by AMB on Buyer's behalf.
Buyer and Seller each shall indemnify, defend and hold the other harmless
from and against any loss, cost or expense, including attorneys' fees and
court costs, resulting from any claim for a commission or fee by any broker
or finder, resulting from activities of the indemnifying party in connection
with the execution of this Agreement or Buyer's purchase of the Property.
16. SUCCESSORS AND ASSIGNS.
a. GENERAL PROVISION. The terms, covenants and conditions herein
contained shall be binding upon and inure to the benefit of the successors
and assigns of the parties hereto.
b. ASSIGNMENT BY BUYER. Buyer shall have the right to assign its
rights and obligations under this Agreement without the consent of Seller,
except that Seller shall have the right to either consent to or reject an
assignee that, in Seller's reasonable opinion, is not sufficiently
financially capable to carry out the obligations of Buyer under this
Agreement.
c. ASSIGNMENT BY SELLER. Seller shall have the right, without
Buyer's consent, to assign all his right, title and interest in the Property
to a living trust which is under the sole control of Seller.
17. SURVIVAL. The terms, covenants and conditions herein contained
required to be operative after delivery of the Deed or after termination or
expiration of the Option, in order to be fully effective, shall be operative
and shall not be deemed to have merged in the Deed or to terminate upon
termination of this Agreement or the Option.
18. MEMORANDUM OF OPTION AGREEMENT.
a. RECORDATION. Prior to delivery of the Option Payment, the
parties shall cause to be recorded in the Official Records of Alameda County
the Memorandum of Option Agreement, attached hereto as EXHIBIT E.
b. QUITCLAIM. Buyer shall deliver to Title company a quitclaim
deed concurrently with execution of this Agreement. The quitclaim deed,
which shall remove the Memorandum of Option Agreement from title to the
Property, shall be held by
9.
Title Company for recordation if, for any reason, the option is not
exercised within the Option Term.
19. SPECIFIC PERFORMANCE. The parties hereby acknowledge that, in the
event of a breach or a threatened breach of any of the provisions of this
Agreement by a party, damages are an inadequate remedy. Accordingly, without
limiting any other remedies of either party, the obligations of the parties
under this Agreement may be enforced by specific performance.
20. ENTIRE AGREEMENT. This Agreement contains all of the covenants,
conditions and agreements between the parties regarding the Option and shall
supersede all prior correspondence, agreements and understandings, both
verbal and written, between the parties regarding the Option. No addition or
modification of any term or provision shall be effective unless set forth in
writing and signed by both Seller and Buyer.
21. ASSURANCES FROM EXISTING LENDER.
a. NO RECOGNITION AGREEMENT INITIALLY. Prior to execution of
this Agreement, it was not practical to obtain a recognition agreement for
this Agreement from Home Savings in connection with the Home Savings Deed
of Trust. As a result, Seller and Buyer agree as follows:
(i) RIGHT TO CURE. If Seller is in default of its
obligations under the Home Savings Deed of Trust, Buyer shall have the right,
but not the obligation, to cure the default and credit against the rent due
under the Lease any amounts expanded by Buyer in connection with the cure
(with any balance credited to the Purchase Price); and
(ii) PURCHASE AT FORECLOSURE. If Home Savings (or its
successor) begins a foreclosure action in connection with the Property, Buyer
shall have the right to purchase the Property at the foreclosure sale so long
as the foreclosure did not result either directly or indirectly from any
act(s) of Buyer or its agents, assign(s), representative(s), related
entity(ies), or those acting in concert with Buyer, whether by breach of any
agreements between Buyer and Seller or otherwise, and otherwise subject to
Seller's rights as set forth in Section 2l.b below.
b. RIGHT TO SEEK RECOGNITION AGREEMENT. After this Agreement is
executed by Buyer and Seller, Buyer shall have the right to seek a
recognition agreement for this Agreement from Home Savings in connection with
the Home Savings Deed of Trust. Actions by Buyer in seeking the recognition
agreement shall not adversely impact Seller. Buyer assumes and shall
compensate Seller for any adverse impact on Seller as a result of Buyer
10.
seeking a recognition agreement. For purposes of this section 21.b,
adverse impacts include, but are not limited, to any charges imposed on
Seller which are over and above Seller's obligation to Home Savings, either
financially or temporally, or which result in a reduction in any manner of
Seller's interest in the Property, including, but not limited to,
foreclosure of Seller's interest in the Property, whether the Property is
purchased at any foreclosure by Buyer or others.
22. NO FURTHER ENCUMBRANCES. Seller shall not subject all or any
portion of the Property to any lien or encumbrance or otherwise revise the
status of the title to the Property after the date of this Agreement;
provided, however, that Seller may subject the Property to liens for monetary
obligations to the extent that the credits to which Buyer is entitled (under
Section 5(ii)) do not exceed eighty percent (80%) of the Purchase Price.
23. ATTORNEYS' FEES. In the event of any litigation regarding the
rights and obligations of the parties under this Agreement, the prevailing
party shall be entitled to reasonable attorneys' fees and court costs.
24. NOTICES. All notices or other communications required or permitted
hereunder shall be in writing and delivered either by hand or deposited in
the United States mail first-class, postage prepaid, and addressed to Buyer
at Buyer's Address (as shown on Page i) or to Seller at Seller's Address (as
shown on Page i), as applicable. The foregoing addresses may be changed by
written notice to the other party as provided in this Section.
25. LEASE. Except as provided in this Agreement, the Lease shall
remain in full force and effect and unamended. In the event of conflict
between the terms of this Agreement and the terms of the Lease, the terms of
the Lease shall control.
26. EXHIBITS. Exhibits A, B, C, D and E are attached hereto and
incorporated herein by reference thereto.
27. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
28. CONFIDENTIALITY. Seller and Buyer agree to keep confidential, and
not publicly disclose, the terms of this Agreement and the transaction
contemplated hereby. However, both Buyer and Seller may disclose the terms
of this Agreement to: (i) their respective lenders, consultants, agents,
architects, independent contractors, attorneys or surveyors associated with
the purchase and sale of the Property; (ii) any governmental
11.
authority to which such disclosure is required by law; or (iii) any third
party to whom the non-disclosing party to this Agreement has given its
prior written consent for such a disclosure.
29. TIME. Time is of the essence of every provision herein contained.
IN WITNESS WHEREOF, the parties hereto have executed one (1) or more
copies of this Agreement, on the date(s) set forth below, as of the day and
year first above written.
"Seller"
/s/ X.X. Xxxxxxx Xx.
------------------------------
XXXXXX X. XXXXXXX, XX.
an individual
Date: June 7, 1995
------------------------
"Buyer"
CHIRON CORPORATION,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxx
-------------------------
Its: Vice President
-------------------------
Date: June 7, 1995
-------------------------
12.
EXHIBIT A
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PROPERTY DESCRIPTION
CITY OF EMERYVILLE
PARCEL "B", PARCEL MAP NO. 2108, FILED JUNE 17, 1977, IN MAP BOOK
97, PAGE 40, ALAMEDA COUNTY RECORDS.
ASSESSOR'S PARCEL NO. 000-0000-000
EXHIBIT B
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LEASE
THIS LEASE AGREEMENT is made as of this 1st day of July, 1983, between
X. X. XXXXXXX, XX. ("Xxxxxxx"), an individual, and CETUS CORPORATION, a
Delaware corporation ("Cetus").
In consideration of their mutual promises herein, the parties agree as
follows;
LEASED PREMISES
1.1 DEFINITION OF PREMISES. Xxxxxxx hereby leases to Cetus, and
Cetus hereby hires from Xxxxxxx, for the term and subject to the provisions
of this Agreement that certain real property (the "Premises") commonly
known as 1400 and 0000 00xx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxx and more
particularly described by metes and bounds on Exhibit A hereto and depicted
on the size plan attached as Exhibit A-1 hereto. The Premises include the
land described on Exhibit A, all appurtenances thereto and all improvements
thereon, including without limitation two buildings (the "Buildings")
described as Building M and Building G on Exhibit A-1, a parking lot, a
loading dock, driveway access to the loading dock, driveway access to the
parking lot, a bridgeway connection between the Buildings and the property
owned by Cetus at 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxx, exterior
walkways, stairways and other facilities exterior to the Buildings. Cetus
acknowledges and agrees that it receives the Premises in "as is" physical
condition.
1.2 LESSOR'S TITLE. Xxxxxxx warrants that he has fee simple title to
the real property described on Exhibit A and Exhibit A-1, the improvements
thereon and the appurtenances thereto. Xxxxxxx shall vacate Area 1 of
Building G, as marked in blue on Exhibit A-1, by August 1, 1983. Xxxxxxx
shall vacate Area 2 of Building G, as marked in red on Exhibit A-1, by
September 1, 1983. Xxxxxxx shall vacate Area 3 of Building G, as marked in
yellow on Exhibit A-1, and shall cause the existing tenant of Area 3 to
vacate the Premises, by October 1, 1983. Xxxxxxx shall secure to Cetus the
quiet, peaceful and undisturbed possession of the Premises during the term
of this Lease against any persons who claim any title to or interest in the
Premises; provided, however, that Cetus acknowledges the rights of the
existing tenants of Building M and the existing tenant of Area 3 of
Building G pursuant to the leases (the "Prior Leases") described on Exhibit
B hereto; provided further however that as of the date hereof Xxxxxxx
hereby (a) represents and warrants that no default exists under any of the
Prior Leases, (b) assigns to Cetus all of his right, title and interest
pursuant to the Prior Leases including all right to modify or extend the
Prior Leases, (c) delivers to Cetus subordination and attornment agreements
in favor of Cetus from each of the tenants ("Prior Tenants") under the
Prior Leases, and (d) confirms that upon expiration or earlier termination
of
-2-
any Prior Lease, Cetus shall have without exception the quiet, peaceful,
undisturbed possession of that portion of the Premises covered by the Prior
Lease.
1.3 XXXXXX STREET. The term "Xxxxxx Street" refers to the paved
automobile access route (I.E., paved road) on the immediate west side of
Building G. So long as Cetus retains control of Xxxxxx Street it agrees to
maintain it at its own expense.
TERM
2.1 TERM AND OPTIONS TO RENEW.
The term of this Lease shall be 7 years from July 1, 1983 (the
"Commencement Date"). Cetus shall, however, have the option to extend this
Lease and all of its other provisions for 7 additional 2-year terms. The
exercise of each of these 2 year options shall be automatic unless Cetus
gives at least 60 days notice of its intent not to exercise each such
option. However, if not more than 70 days prior to the expiration of the
then current term Xxxxxxx delivers to Cetus written notice that Xxxxxxx
seeks notification as to whether Cetus is exercising its option to extend,
then Cetus must deliver to Xxxxxxx within 10 days after Cetus receives such
notice from Xxxxxxx Cetus' written notification as to whether Cetus is
exercising its option to extend. If Cetus does not deliver the notices
required of it pursuant to this Section 2.1, then Xxxxxxx shall be under no
obligation to further extend the Lease.
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RENT
3.1 RENT. Rent for the premises shall be $57,362.50 per month.
3.2 PERIODIC PAYMENTS OF RENT. The rent shall be paid in equal
monthly installments due on the first day of each month; except, however,
that on or before July 1, 1983 Cetus shall pay Xxxxxxx the monthly rent for
the month of July 1983 and for the month of June 1984. Cetus' prepayment
of the rent for the month of June 1984 shall be the only advance rental
payment required under this Lease. If this Lease terminates on a day other
than the last day of a calendar month, the monthly rental for the last
fractional month shall be prorated.
3.3 MANNER OF PAYMENT. Rental shall be paid to Xxxxxxx in lawful
money of the United States of America at the address set forth herein for
delivery of notices to Xxxxxxx or to such other person or at such other
place as Xxxxxxx may from time to time designate in writing.
3.4 PRIOR LEASES. The parties acknowledge that pursuant to the Prior
Leases portions of the Premises are currently rented out to various other
tenants. Cetus acknowledges and agrees that in leasing the Premises from
Xxxxxxx it takes "subject to" the Prior Leases. Cetus understands and
accepts that Xxxxxxx makes no guarantees as to the validity or terms of the
Prior Leases. However, along with the right to occupy the Premises, Cetus
by execution of this Lease gains the right to sublease space in the
Premises to new
-4-
tenants and collect rents from existing tenants and to negotiate new rental
terms with Cetus' subtenants or the said existing tenants. By executing
this Lease Cetus also agrees that it relieves Xxxxxxx of the responsibility
of removing existing tenants for violation of provisions of their rental
agreements occurring from and after the Commencement Date and agrees to
waive any claims against Xxxxxxx for any breaches of the Prior Leases
occurring after the Commencement Date. Cetus also agrees that it waives
any claims against Xxxxxxx for any damage Cetus may have sustained or may
in the future sustain as a result of Xxxxxxx'x failure to evict Xxxxx
Xxxxxxx.
TAXES
4.1 TAXES. The parties agree that the real property tax obligation
on the Premises which accrues during the term of this Lease shall be paid
by Cetus.
UTILITIES
5.1 UTILITIES. Immediately upon the Commencement Date Cetus shall
become solely responsible for payment of all utilities supplied to the
Premises including, but not limited to, gas, electricity and water and
shall immediately notify said utility suppliers. Cetus may thereafter
charge each other tenant on the Premises its prorated share of the cost of
each said utility.
5.2 METERING. Cetus may at its own expense install any utility
metering system it desires.
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USE
6.1 PERMITTED USE. Cetus may use the Premises for all purposes
consistent with the current zoning laws to which the Premises are subject.
6.2 SAFETY. Should Cetus cease its use of the Premises while Xxxxxxx
remains owner of the Premises, Cetus agrees to leave the Premises in a
condition which is safe and nonhazardous to human and other forms of life.
Cetus agrees that if after it has so left the Premises an unsafe condition
caused and left by Cetus is responsible for injury to any individual, Cetus
will hold Xxxxxxx harmless and indemnify him for any and all costs or
compensation reasonably paid by Xxxxxxx as a result of such injury. Cetus
also agrees to fully reimburse Xxxxxxx for any expenditures reasonably made
by Xxxxxxx for the purpose of making the Premises safe after Cetus has left
the Premises. The covenants contained in this Section 6.2 are personal to
Xxxxxxx and are not transferable to his successors and assigns and further
shall expire on the second anniversary of the date Cetus ceases to use the
Premises.
BUILDING SERVICES
7.1 PROVISIONS BY CETUS. Cetus, at Cetus' expense, shall furnish the
Premises with such (i) elevator service, (ii) lighting replacement (for
building standard lights) in common areas, (iii) restroom supplies in
common areas, and (iv) janitor service in common areas as Cetus may require
or as is required pursuant to the Prior Leases.
-6-
SECURITY
7.2 SECURITY. Throughout the term hereof Cetus shall provide for
the security of the Premises, including the breezeway, as it sees fit, and
may, at Cetus' expense, implement an increased security system.
7.3 LOADING DOCK-BREEZEWAY DOOR. Cetus shall be responsible for the
security of the door between the loading dock and the breezeway, which is
located at the north end of the breezeway.
MAINTENANCE; REPAIRS
8.1 CETUS' OBLIGATIONS. Cetus, at Cetus' expense, shall at all times
during the term hereof maintain all public and common areas (including
lobbies, stairs, elevators, corridors and restrooms), windows, doors, the
breezeway, the mechanical, plumbing and electrical equipment, the parking
area, and foundations, exterior walls and roof, of the Premises all as
Cetus may require or as may be required of the landlord pursuant to terms
of the Prior Leases.
8.2 CETUS' GENERAL OBLIGATIONS. Cetus shall, at all times during the
terms hereof and at Cetus' sole cost and expense, keep the Premises in good
order, condition and repair, excepting only that portion of the Premises
for which tenants under Prior Leases are responsible and ordinary wear and
tear and damage to the Premises by fire, earthquake, the elements or other
causes beyond Cetus' reasonable control.
-7-
8.3 CETUS' RIGHTS WITH RESPECT TO HVAC. Cetus shall maintain (at
Cetus' expense) the heating, ventilating and air conditioning systems in
the Buildings as Cetus may require or as may be required of the landlord
pursuant to the terms of the Prior Leases. Cetus may, at Cetus' expense,
put into working order, operate and maintain exhaust fans and exhaust
systems on the Premises.
8.4 HEAT. Cetus shall be responsible for providing an operating
boiler system at the Commencement Date for Cetus' and other tenants' use.
Cetus, at Cetus' expense, shall maintain the boiler system during the term
of this Lease and furnish the fuel therefor.
ALTERATIONS
9.1 ALTERATIONS. Cetus may, at Cetus' expense, make any structural
or nonstructural alterations, additions or improvements in, on or to any
space in the Premises as Cetus desires as long as the present value of the
Premises is not diminished and all such changes conform to the requirements
of and receive the approval of all relevant government agencies including
those of the City of Emeryville, County of Alameda, State of California,
and the United States of America. If and only if Cetus intends to make
alterations which materially affect the structure or exterior face of the
Buildings, Cetus shall within 10 days prior to actually commencing work on
said alterations provide to Xxxxxxx copies of all plans, prints,
blueprints, details, working drawings and all other relevant
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construction documents and shall also provide an adequate work space on the
Premises for Xxxxxxx to review the said documents. Cetus shall not have
the right to actually commence physical work on alterations which
materially affect the structure or exterior face of the Buildings without
the prior written approval of Xxxxxxx; provided however that Xxxxxxx shall
not unreasonably withhold prior written approval, and if Xxxxxxx has not
approved or disapproved of the alterations within 10 days of submission of
the material plans and specifications therefor, he shall be deemed to have
granted prior written approval.
9.2 MECHANICS' LIENS. Cetus shall keep the Premises free from any
liens arising out of any work which it causes to be performed for materials
furnished to or obligations incurred by Cetus. Each party shall have the
right to post and keep posted on the Premises any notices that may be
provided by law or which either party may deem to be proper for the
protection of the Premises against such liens. If within 10 days following
the imposition of any lien the obligated party has not caused the lien to
be released of record by payment or by posting of a proper bond, the other
party, in addition to all other remedies provided in this Lease and by law,
shall have the right, but shall not be obligated, to cause the lien to be
released by such means as it deems proper, including payment of the claim
giving rise to the lien. All payments made and expenses incurred by that
party in connection with the lien shall be reimbursed to that party.
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INSURANCE
10.1 PROPERTY INSURANCE. Cetus at its own expense shall carry
throughout the term hereof property insurance on the Premises in the amount
of the fair market value of the Buildings and improvements
("Improvements"). The fair market value of the Improvements shall be
redetermined at least once every two years in a manner reasonably
acceptable to both parties and to Cetus' insurance carrier by an
independent appraiser. Such appraisal shall delineate the amount of
coverage for (a) the exterior walls and the roof of each of the two
Buildings, the on-site improvements and other improvements made to the
Premises by Xxxxxxx or his predecessors in interest at his or their
expense, and (b) the leasehold improvements previously or hereafter made to
the Premises by Cetus at its expense and Cetus' fixtures and personality.
The insurance shall name X. X. Xxxxxxx, Xx. as an additional insured. Such
insurance shall contain coverage against loss or damage by fire and such
other risks as are now or hereafter included under "All Risks" coverage in
common use for commercial structures in the vicinity of the Premises. Said
coverage may provide for a deductible amount of up to $15,000; Cetus shall
not accept a greater deductible amount without first obtaining Xxxxxxx'x
prior written consent, which Xxxxxxx shall not unreasonably withhold, and
Xxxxxxx'x consent shall be presumed if Xxxxxxx does not object to a
proposed greater deductible within 20 days after notice thereof from Cetus.
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10.2 LIABILITY INSURANCE. Cetus, at its own expense, shall carry
throughout the term hereof comprehensive general liability insurance to
protect against liability to the public incident to or resulting from any
accident on the Premises. The coverage of such insurance shall be not less
than $1,000,000 for any one person injured, $3,000,000 for any one accident
and $1,000,000 for property damage. By endorsement Cetus shall include
contractual obligation protection under said liability coverage. In any
policy of liability insurance purchased by either party to this Lease the
other party shall be named as a co-insured.
10.3. XXXXXXX'X SEPARATE COVERAGE. Xxxxxxx, at his expense, may
also place any other or additional insurance coverage he desires, which
shall be in Xxxxxxx'x name and in which Cetus shall have no interest.
10.4 BOILER AND MACHINERY INSURANCE. Cetus at its cost shall maintain
boiler and machinery insurance on all boilers, heating and air conditioning
equipment and other standard equipment in, on or about the Buildings
routinely covered by such insurance, if any of these items and the damage
that may be caused by them are not covered by the "All Risk" insurance
referred to in Section 10.1. The boiler and machinery insurance shall have
limits of not less than $100,000 per occurrence.
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10.5 SUBROGATION. Each party shall cause each insurance policy obtained
by it and relating to the Premises to provide that the insurance company
waives all right of recovery by way of subrogation against the other in
connection with any damage covered by any policy.
10.6 FORM OF POLICIES. The policies evidencing the coverage carried by a
party under this Article 10 shall be issued by insurance companies licensed
to do business in the State of California and provide that (a) the coverage
is primary and noncontributing to any insurance that may be carried by the
other party; (b) the coverage cannot be cancelled, modified, reduced or
otherwise materially changed except after 30 days prior written notice to the
other party; and (c) the other party shall be included as an additional
insured.
10.7 PROCEDURES AND REMEDIES. The party hereto responsible for carrying
insurance under this Article 10 shall deliver to the other party, in the
manner required for notices, (a) certificates or binders evidencing all
insurance policies and endorsements this Lease requires the party to carry,
and (b) proof satisfactory to the other party that the premiums for the
procurement and maintenance of such coverage are fully paid, all within the
following time limits:
(i) for insurance required at the commencement of the term of this
Lease within 60 days from the Commencement Date; and
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(ii) for any renewal or replacement of a policy already in
existence, at least 30 days before expiration or other termination of the
existing policy.
If a party fails or refuses to procure or to maintain the insurance
coverage required hereunder or fails or refuses to furnish the other party
with proof that said coverage has been procured and is in force and paid
for, the other party shall have the right, without notice, but without any
obligation so to do, to procure and maintain such coverage. The defaulting
party shall reimburse the curing party on demand for any premiums the
latter so pays.
COMPLIANCE WITH LAW
11.1 COMPLIANCE WITH LAW. Cetus shall at its sole cost and expense
promptly comply with all laws, statutes, ordinances and governmental rules,
regulations or requirements now in force or which may hereafter be in force,
with the requirements of any board of fire underwriters or other similar body
now or hereafter constituted, with any direction or occupancy certificate
issued pursuant to any law by any public officer or officers, as well as the
provisions of all recorded documents affecting the Premises, insofar as they
relate to the condition, use or occupancy of the Premises, excluding
requirements of code compliance and or structural changes not related to
Cetus' acts.
-13-
ASSIGNMENT AND SUBLETTING
12.1 USE CONSISTENT WITH ZONING. While Cetus may assign or sublease its
interest under the Lease, any such assignment or sublease shall be invalid
and shall constitute a breach of the Lease if the assignee or sublessee
uses the assigned or subleased premises in a manner which is inconsistent
with the then current zoning laws to which the Premises are subject. Any
transfer of this Lease by operation of law, whether resulting from death,
merger, consolidation or liquidation, shall constitute an assignment for
purposes of this Section.
12.2 SUBLETTING: NOTICE TO XXXXXXX. If at any time or from time to time
during the term of this Lease Cetus desires to sublet all or any part of the
Premises, Cetus shall give notice to Xxxxxxx setting forth the terms of the
proposed subletting and the space so proposed to be sublet. No sublease
shall be valid and no sublessee shall take possession of the Premises
subleased until an executed counterpart of such sublease has been delivered to
Xxxxxxx.
12.3 XXXXXXX'X RIGHT TO ENCUMBER. At any time during the term of this
Lease, Xxxxxxx, with Cetus' prior written consent and subject to Cetus'
rights under this Lease, may encumber the Premises with a deed of trust or
mortgage to secure a loan to Xxxxxxx. If Xxxxxxx exercises his right to
encumber the Premises in accordance with this Section 12.3, Cetus agrees to
subordinate to second position the Xxxxxxx Note (as defined
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below) and the deed of trust securing the Xxxxxxx Note to the new
encumbrance, pursuant to such subordination documentation as may be
reasonably acceptable to Cetus; provided, however, that if the prior
encumbrance is foreclosed or enforced, this Lease shall not be terminated
nor any of Cetus' rights hereunder disturbed, including without limitation
Cetus' rights to offset its payment obligations hereunder by the amount of
any delinquent payments under the Xxxxxxx Note.
ENTRY BY XXXXXXX
13.1 ENTRY BY XXXXXXX. Xxxxxxx may upon 48 hours prior written notice
enter the Premises at reasonable hours to (a) inspect the same, (b) exhibit
the same to prospective lenders, (c) determine whether Cetus is complying
with all its obligations hereunder, and (d) post notices of
nonresponsibility. Xxxxxxx shall further have the right, without notice to
Cetus, of ingress and egress over the easement (the "Dock Easement") depicted
in green and labeled Dock Easement on Exhibit A-1 hereto; provided, however,
that Xxxxxxx shall exercise such easement rights in a manner as will not
interfere with Cetus' use of the Dock Easement or the remainder of the
Premises.
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DEFAULT
14.1 XXXXXXX'X NOTE. Attached hereto as Exhibit C is a copy of Xxxxxxx'x
promissory note ("Xxxxxxx'x Note") dated December 5, 1980 in favor of Cetus
in the principal amount of $500,000.00. As of the Commencement Date
Xxxxxxx'x Note has an outstanding principal balance of $447,788; interest
resuming on July 1, 1983. Cetus' payment obligations hereunder are
conditioned upon the payment by Xxxxxxx to Cetus of each installment under
the Xxxxxxx Note on or before its due date, and Cetus shall have the right
to offset against payments otherwise due hereunder the amount of any
delinquent payment of principal and/or interest under the Xxxxxxx Note.
14.2 EVENTS OF DEFAULT. The occurrence of any one or more of the following
events ("events of default") shall constitute a substantial breach of this
Lease by Cetus:
a. FAILURE TO PAY RENT. Cetus fails to pay any rental in full
when the same becomes due, if such failure is not due to Cetus' exercise of
its offset rights pursuant to Section 14.1 above and if such failure
continues for more than 10 days after Cetus' receipt from Xxxxxxx of notice
of the amount due; or
b. FAILURE TO PAY OTHER SUM. Cetus fails to pay any other sum
when the same becomes due, if such failure is not due to Cetus' exercise of
its offset rights pursuant to
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Section 14.1 above and if such failure continues for more than 10 days
after Cetus' receipt from Xxxxxxx of notice of the amount due; or
c. FAILURE TO PERFORM. Cetus fails to perform or observe any of
Cetus' other obligations under this Lease, if such failure continues for more
than 30 days after notice from Xxxxxxx or from any governmental body with
jurisdiction over the Premises describing the delinquent obligation;
provided, however, that if by its nature the breach cannot be cured within 30
days but Cetus nevertheless has the capacity to cure the breach, Cetus may
have such longer period as is necessary upon the condition that Cetus
promptly commences the curing of the breach within the 30-day period and
thereafter diligently pursues the cure to completion; or
d. BANKRUPTCY. Cetus makes a general assignment for the benefit
of creditors, or admits in writing its inability to pay its debts as they
become due or files a petition in bankruptcy, or is adjudicated as bankrupt
or insolvent or files a petition in any proceeding seeking any
reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any present or future statute, law or
regulation, or files an answer admitting, or fails timely to contest, the
material allegations of a petition filed against it in any such proceeding,
or seeks or
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consents to or acquiesces in the appointment of any trustee, receiver or
liquidator of Cetus or any material part of its properties; or
e. REORGANIZATION. Any proceeding against Cetus seeking any
reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any present or future statute, law or
regulation is not dismissed within 90 days after the commencement thereof, an
appointment is made without the consent or acquiescence of Cetus of a
trustee, receiver or liquidator of Cetus or of any material part of its
properties which is not vacated within 90 days thereafter; or
x. XXXX. This Lease or any estate of Cetus hereunder is levied
upon under any attachment or execution and such attachment on execution is
not vacated within 30 days thereafter.
14.2 XXXXXXX'X REMEDIES UPON AN EVENT OF DEFAULT
a. TERMINATION. If an event of default occurs, Xxxxxxx may give
a written termination notice to Cetus, and on the date specified in the
notice (which shall not be less than three days after the giving of such
notice) this Lease shall terminate, unless on or before such date all arrears
of rental and all other sums payable by Cetus under this Lease and all costs
and expenses incurred by or on behalf of Xxxxxxx have been paid by Cetus at
the time existing have been fully remedied to the reasonable satisfaction of
Xxxxxxx.
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b. CONTINUATION OF LEASE, Even though Cetus has breached this
Lease or abandoned the Premises, this Lease shall continue in effect for so
long as Xxxxxxx does not terminate this Lease, and Xxxxxxx may enforce all
rights and remedies including the right to recover the rental as it becomes
due. Acts of maintenance or preservation of or efforts to relet the Premises
or the appointment of a receiver upon initiative of Xxxxxxx to protect
Xxxxxxx'x interest under this Lease shall not constitute a termination of
this Lease.
c. OTHER RELIEF. The remedies provided for in this Lease are in
addition to any other remedies available to Xxxxxxx at law or in equity by
statute.
ATTORNEYS' FEES
15.1 ATTORNEYS' FEES in the event of any action or proceeding brought by
either party against the other under this Lease, the prevailing party shall
be entitled to recover reasonable attorneys' fees.
DAMAGE OR DESTRUCTION
16.1 CETUS' OBLIGATION TO RESTORE. If there is damage to the Premises
caused by fire or any casualty which is covered by the policy of fire and All
Risks coverage insurance described in Section 10.1 above, and if the proceeds
to Cetus therefrom are sufficient to cover the full cost of the restoration,
Cetus shall forthwith repair the damage, subject to the provisions of
Sections 16.3 and 16.4 below, and this Lease shall remain in
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full force and effect. Rental hereunder shall xxxxx while the repair work is
underway in proportion to the degree to which the Premises are rendered
unusable.
16.2 CETUS' OPTION TO RESTORE. If the damage results from a casualty
not covered by fire or All Risks coverage insurance or if the proceeds to
Cetus from such insurance are insufficient to cover the full cost of the
restoration, then Cetus may, at its option, upon written notice to Xxxxxxx,
within 30 days after the date of such fire or other casualty, restore the
damage, and this Lease shall remain in full force and effect, subject to the
abatement provision set forth in Section 16.1 above.
16.3 OPTION TO TERMINATE. If (a) Cetus does not elect to make repairs
pursuant to Section 16.2 above, or (b) either 20% of the floor area of the
Buildings or 20% of the parking lot area or such portion of the Premises as
otherwise interferes with Cetus' operations on the premises are damaged or
destroyed, or (c) the damage occurs during the last 9 months of the term of
this Lease, then Cetus may by written notice to Xxxxxxx, given within 30 days
after the date of the fire or other casualty, terminate this Lease as of the
date of the fire or other casualty; provided, however, that if Xxxxxxx
promptly makes available to Cetus alternate parking facilities which are
reasonably acceptable to Cetus with respect to quality, area and location,
then Cetus shall not terminate this Lease if the sole grounds for termination
would have been the destruction of 20%
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or more of the parking lot area. If Cetus elects to terminate under this
paragraph, then Xxxxxxx shall be entitled to receive a portion of the
insurance proceeds proportional to the fair market value of the Buildings as
set forth in the fair market value appraisal of the Improvements (Section
10.1).
16.4 TOTAL DESTRUCTION. A total destruction of the Premises shall
automatically terminate this Lease.
EMINENT DOMAIN
17.1 CONDEMNATION. If all or any part of the Premises are taken by
eminent domain, this Lease shall terminate as to the part so taken as of the
date of the taking. In the case of partial taking which exceeds 20% of the
floor area of the Buildings or 20% of the parking lot area or otherwise
materially interferes with Cetus' operations on the Premises, Cetus shall
have the right to terminate this Lease; provided, however, that if Xxxxxxx
promptly makes available to Cetus alternate parking facilities which are
reasonably acceptable to Cetus with respect to quality, area and location,
then Cetus shall not terminate this Lease if the sole grounds for termination
would have been the taking of 20% or more of the parking lot area.
17.2 AWARD TO CETUS. If all or any part of the Premises is taken by
eminent domain Cetus shall be entitled to any and all compensation, damages,
income, rents, awards, on any interest whatsoever which may be paid or made
in connection with the value of Cetus' leasehold or purchase interest, its
lease-
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hold improvements and fixtures, or with loss of or damage to Cetus' personal
property on the Premises or with moving expenses and other severance damages.
17.2 REDUCTION OF RENTAL. In the event of a partial taking of the
Premises which does not result in a termination of this Lease, the monthly
rental thereafter to be paid shall be reduced in proportion to the value of
the Premises taken.
SURRENDER
18.1 SURRENDER OF LEASE NOT MERGER. The voluntary or other surrender of
this Lease by Cetus, or a mutual cancellation thereof, shall not work a
merger, and shall at the option of Xxxxxxx, terminate all or any existing
subleases or subtenancies, or may, at the option of Xxxxxxx, operate as an
assignment to Xxxxxxx of any or all such subleases or subtenancies.
18.2 REDELIVERY OF PREMISES TO LESSOR. Upon termination of this Lease
for any reason other than acquisition of title to the Premises by Cetus,
Cetus shall surrender the Premises to Xxxxxxx in good order, condition and
repair, excepting only ordinary wear and tear, damage occasioned by the act
or omission of Xxxxxxx and damage thereto by fire, earthquake, the elements
or causes beyond Cetus' reasonable control.
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HOLDING OVER
19.1 HOLDING OVER. If, without objection by Xxxxxxx, Cetus holds
possession of the Premises after expiration of the term of this Lease, Cetus
shall become a tenant from month to month upon the same terms herein
specified. Each party shall give the other written notice at least one month
prior to the date of termination of such monthly tenancy of its intention to
terminate such tenancy.
SIGNS
20.1 SIGNS. Xxxxxxx shall permit Cetus to have sign identification on
and within the Buildings which is compatible with the aesthetics thereof.
BROKERS AND FINDERS
21. BROKERS AND FINDERS. Each party represents that it has not had
dealings with any real estate broker, finder, or other person with respect to
this Lease. Each party shall hold harmless the other party from all damages
resulting from any claims that may be asserted against the other party by any
broker, finder or other person, with whom the party has or had purportedly
dealt.
MISCELLANEOUS
22.1 WAIVER. The waiver by a party of any agreement, condition or
provision herein contained shall not be deemed to be a waiver of any
subsequent breach of the same or any other agreement, condition or provision,
nor shall any custom or practice which may grow up between the parties in the
-23-
administration of the terms hereof be construed to waive or to lessen the
rights of a party to insist upon the performance by the other party in strict
accordance with the terms of this Lease.
22.2 NOTICES. All notices and demands which may or are required to be
given by either party to the other hereunder shall be in writing and shall be
deemed to have been fully given when personally served (but upon an officer
of Cetus in the case of Cetus) or when deposited in the United States mail,
certified or registered, postage prepaid, and addressed as follows:
To Xxxxxxx at 0000 - 00xx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxx 00000
To Cetus at 0000 00xx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxx 00000
or such other place as a party may designate by notice to the other.
22.3 COMPLETE AGREEMENT. There are no oral agreements between Xxxxxxx
and Cetus affecting this Lease, and this Lease supersedes and cancels any and
all previous negotiations, arrangements, agreements and understandings, if
any, between Xxxxxxx and Cetus pertaining to the subject matter of this Lease
or the Buildings; provided, however, that until such time as Xxxxxxx'x
covenants pursuant to Section 1.2 hereof are satisfied, then Cetus' rights
pursuant to that certain Optional Exchange Agreement, between Cetus and
Xxxxxxx, dated January 1,
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1982, shall survive. There are no representations, warranties or
inducements, express or implied, between Xxxxxxx and Cetus, except as stated
in this Lease.
22.4 CORPORATE AUTHORITY. If Cetus signs as a corporation, each of the
persons executing this Lease on behalf of Cetus does hereby covenant and
warrant that Cetus is a duly authorized and existing corporation, that Cetus
does and is qualified to do business in California, that the corporation has
full right and authority to enter into this Lease, and that each of the
persons signing on behalf of the corporation is authorized to do so.
22.5 TIME IS OF THE ESSENCE. Time is of the essence of this Lease and
each and all of its provisions.
22.6 HEIRS, ETC., BOUND BY AGREEMENT. Except as provided in Section 6.2
above, the agreements, conditions and provisions herein contained shall,
subject to the provisions as to assignment, apply to and bind the heirs,
executors, administrators, successors and assigns of the parties hereto.
22.7 SEVERABILITY. If any provision of this Lease in determined to be
illegal or unenforceable, such determination shall not affect any other
provision of this Lease and all such other provisions shall remain in full
force and effect.
22.8 GOVERNING LAW. This Lease shall be governed by and construed
pursuant to the laws of the State of California.
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22.9 CAPTIONS. The captions in this Lease are for convenience only, are
not a part of this Lease and do not in any way limit or amplify the
provisions hereof.
22.10 MEMORANDUM. Upon the request of a party, Xxxxxxx and Cetus
shall execute in recordable form a Memorandum of this Lease, which the
requesting party may record.
22.11 FURTHER INSTRUMENTS. From time to time prior to and after the
execution of this Lease, each party shall execute and deliver such
instruments and other documents as may be reasonably requested by the other
party or necessary to carry out the purposes and intent of this Lease.
EXHIBITS, ADDENDA
23.1 EXHIBITS, ADDENDA. The exhibits hereto and addenda, if any, are
made a part of this Lease.
Dated: June 23, 1983 \s\ Xxxxxx X. Xxxxxxx, Xx.
------------------------------
XXXXXX X. XXXXXXX, XX.
Dated: June 23, 1983 CETUS CORPORATION
By: /s/ Signature Unreadable
-------------------------
Title: Vice President and
General Counsel
----------------------
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EXHIBIT A
BASIS OF BEARINGS
The northerly line of 00xx Xx. xx Xxxxxx Xx. Taken as S72 degrees 28'W.
LEGAL DESCRIPTION
That parcel of land in the city of Emeryville, County of Alameda, State of
California, described as follows:
Parcel "B" of Parcel map No. 2108, filed June 17, 1977, map book 97, pages
40 and 41, Alameda County records, more particularly described as follows:
Beginning at the intersection of the north line of 53rd St. and the east
line of Xxxxxx Street thence following said east line of Xxxxxx Street
north 17 degrees 32' west 299.19 feet; thence leaving said east line of
Xxxxxx Street north 72 degrees 28' east 100.17 feet; thence north 17
degrees 32' west 43.00 feet; thence north 72 degrees 28' east 42.83 feet;
thence north 17 degrees 32' west 43.00 feet; thence north 72 degrees 28'
east 131.59 feet; thence south 17 degrees 32' east 385.19 feet to said
north line of 00xx Xxxxxx; thence following said line south 72 degrees 18'
west 274.59 feet to the point of beginning.
AMENDMENT TO LEASE
This AMENDMENT TO LEASE (the "Amendment") is made as of this 20th day of
March 1990, between Xxxxxx X. Xxxxxxx, Xx., an unmarried man ("Xxxxxxx"),
and Cetus Corporation, a Delaware corporation ("Cetus") (collectively the
"parties").
RECITALS
X. Xxxxxxx is the lessor and Cetus is the lessee under that
certain Lease, dated July 1, 1983 (the "Lease"), between Cetus and Xxxxxxx
concerning the premises commonly known as M&G Buildings, located at 1400
and 0000 00xx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxx. Terms defined in the Lease
shall have the same meaning when used in this Amendment.
B. Pursuant to that certain Settlement Agreement and Release, of even
date herewith, the parties agree to amend the Lease as provided herein.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and other valuable
consideration, the receipt and adequacy of which are hereby acknowledged,
the parties hereby agree as follows:
1. Paragraph 2.1 of the Lease entitled "TERM AND OPTIONS TO RENEW" is
amended in its entirety to read as follows:
2.1 TERM AND OPTIONS TO RENEW. The term of this lease shall be 7
years from July l, 1983 (the "Commencement Date"). Cetus shall,
however, have the option to extend this lease and all of its other
provisions for nine
additional 2-year terms. The exercise of each of these 2-year options
shall be automatic unless Cetus gives at least 60 days notice of its
intent not to exercise each such option. However, if not more than
70 days prior to the expiration of the then current term Xxxxxxx
delivers to Cetus written notice that Xxxxxxx seeks notification as to
whether Cetus is exercising its option to extend, then Cetus must
deliver to Xxxxxxx within 10 days after Cetus receives such notice
from Xxxxxxx, Cetus' written notification as to whether Cetus
is exercising its option to extend. If Cetus does not deliver the
notices required of it pursuant to the preceding sentence, then
Xxxxxxx shall be under no obligation to further extend the lease.
2. Paragraph 3.1 of the Lease entitled "RENT" is amended in its
entirety to read as follows:
3.1 RENT. Rent for the premises shall be $57,362.50 per month.
Effective July 1, 1990, and each July 1st thereafter during the term
of the Lease, up to and including July 2003, the monthly rent for that
July and the succeeding 11 months for the premises as set forth in the
first sentence of this paragraph shall be two
-2-
and one-half percent (2-1/2%) greater than the monthly rent payable
for the preceding 12 months. Effective July 1 of each lease year
beginning July 1, 2004 and each July 1st thereafter, the monthly rent
for that July and the succeeding 11 months shall increase from the
rent payable for the preceding 12 months by a percentage equal to the
net percentage of any increase by which the Consumer Price Index For
All Urban Consumers (1982-84 = 100) of the San Francisco-Oakland
Metropolitan Area, All Items,published by the Bureau of Labor
Statistics of the United States Department of Labor (the "Index"), as
of September of the prior year, has increased over the Index for the
September of the second prior year. If the Index is not published at
any time pertinent to this provision, the index used shall be based
upon the most closely comparable statistics on the purchasing power of
the consumer dollar as published by a governmental department or
agency.
-3-
3. This Amendment is binding upon and shall inure to the benefit of the
parties hereto and their respective heirs, executors, administrators,
successors in interest, and assigns. Except as expressly amended hereby,
the Lease shall remain unmodified and in full force and effect.
-4-
In witness whereof, the parties hereto have executed this
Amendment as of the date first above written.
XXXXXX X. XXXXXXX, XX.
/s/ X.X. Xxxxxxx, Xx.
----------------------------------
CETUS CORPORATION
By: /s/ Signature Unreadable
-------------------------------
Its: Sr. VP
-------------------------------
-5-
SECOND AMENDMENT TO LEASE
THIS SECOND AMENDMENT TO LEASE ("Second Amendment") is made as of the
1st day of January, 1995, between XXXXXX X. XXXXXXX, XX., an individual
("Xxxxxxx"), and CHIRON CORPORATION, a Delaware corporation ("Chiron").
THIS SECOND AMENDMENT IS ENTERED on the basis of the following facts,
intentions and understandings of the parties:
X. Xxxxxxx, as the lessor, and Cetus Corporation ("Cetus"), as the
lessee, entered a Lease ("Original Lease") dated as of July 1, 1983.
Chiron is the successor to Cetus.
B. The Original Lease relates to premises ("Premises") commonly
known as Building M and Building G located at 1400 and 0000 00xx Xxxxxx in
Emeryville, California. The Premises are more particularly described in the
Original Lease.
X. Xxxxxxx and Cetus entered an Amendment to Lease ("First
Amendment") dated as of March 20, 1990. The Original Lease as amended by
the First Amendment is hereinafter referred to as the "Lease." Terms which
are capitalized in this Second Amendment and not defined herein shall have
the meanings set forth in the Lease.
X. Xxxxxxx and Chiron now desire to amend the Lease as provided in
this Second Amendment.
E. Also as of the date of this Second Amendment, Xxxxxxx and Chiron
are entering an Option Agreement pursuant to which Xxxxxxx is granting to
Chiron an option to purchase the Premises. The Option Agreement is not to
alter the Lease (as amended by this Second Amendment) in any way.
F. The Term of the Lease is seven (7) years, commencing on July 1,
1983. The Lease provides that Chiron has the option to extend the Lease
for nine (9) additional terms of two (2) years each. Chiron has already
exercised three (3) of the two (2) year extensions, with the Term of the
Lease, as extended prior to this Second Amendment, to expire on July 1,
1996.
G. Chiron desires by this Second Amendment to extend the Term of the
Lease by two (2) additional terms of two (2) years, such that (i) the Term
of the Lease after the extensions pursuant to this Second Amendment shall
expire on June 30, 2000, and (ii) Chiron will have the right, in accordance
with the terms of the Lease (as amended by this Second Amendment), to
extend the
1.
Term of the Lease after June 30, 2000 by four (4) additional terms of two
(2) years each.
NOW THEREFORE, IN CONSIDERATION of the mutual covenants and promises
the parties, the parties agree as follows:
l. EXERCISE OF OPTIONS. By this Second Amendment, Chiron hereby
exercises two (2) options, to extend the Term of the Lease for two (2) years
each. The extensions pursuant to this exercise shall commence on July 1, 1996,
and extend through June 30, 2000.
2. REVISED SECTION 10.1. The first sentence of Section 10.1 shall
state in its entirety as follows: "Cetus at its own expense shall carry
throughout the term hereof property insurance on the Premises to replace the
Building in compliance with current building codes."
3. NO MODIFICATION OF LEASE. No terms of the Option Agreement shall
alter or modify in any way the terms of the Lease (as amended). For example,
the failure of Chiron to exercise the option, granted in the Option Agreement,
to purchase the Premises shall not affect Chiron's rights under the Lease
(as amended).
4. SUCCESSORS AND ASSIGNS. This Second Amendment shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
heirs, executors, administrators, successors in interest and assigns.
5. REMAINDER OF LEASE UNAFFECTED. Except as expressly amended by
this Second Amendment, the Lease shall remain in full force and effect and
unamended.
IN WITNESS WHEREOF, the parties hereto have executed this Second
Amendment, on the date(s) set forth below, as of the day and year first
above written.
"Xxxxxxx"
_____________________________
Xxxxxx X. Xxxxxxx, Xx., an
individual
2
"Chiron"
Chiron Corporation, a Delaware
corporation
By___________________________
Its__________________________
Date_________________________
3.
EXHIBIT C
POTENTIAL CLAIMS BY
GOVERNMENTAL AGENCIES
Possible complaint by the County of Alameda which relates to
underground storage tanks on the Property (at the northeast corner of
"Building M").
EXHIBIT C
EXHIBIT D
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TITLE EXCEPTIONS
[LOGO] CHICAGO TITLE COMPANY OF ALAMEDA COUNTY
-------------------------------------------------------------------------------
Issuing Office: Escrow Location:
00000 Xxxxxxxx Xxxxxxxxx Xxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000 Xxxxxxx, Xxxxxxxxxx 00000
Phone:(000)000-0000 Phone: (000) 000-0000
Fax: (000)000-0000 Fax: (000) 000-0000
Escrow No: 105494 KIO
Escrow Officer: Xxxx X. Xxxxx
RE: CHIRON CORPORATION
Order No. 000105494 MEW
Reference:
Regarding: 0000 - 00xx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxx
--------------------------------------------------------------------------------
FIRST AMENDED
Dated as of January 12, 1995 at 5:00 P.M.
In response to the above referenced application for a policy of title
insurance,
CHICAGO TITLE COMPANY OF ALAMEDA COUNTY
hereby reports that it is prepared to issue, or cause to be issued, as of
the date hereof, a Policy or Policies of Title Insurance describing the
land and the estate or interest therein hereinafter set forth, insuring
against loss which may be sustained by reason of any defect, lien or
encumbrance not shown or referred to as an Exception in Schedule B or not
excluded from coverage pursuant to the printed Schedules, Conditions and
Stipulations of said Policy forms.
The printed Exceptions and Exclusions from the coverage of said Policy or
Policies are set forth in the attached list. Copies of the Policy forms
should be read. They are available from the office which issued the
report.
Please read the exceptions shown or referred to in Schedule B and the
exceptions and exclusions set forth in the attached list of this report
carefully. The exceptions and exclusions are meant to provide you with
notice of matters which are not covered under the terms of the title
insurance policy and should be carefully considered. It is important to
note that this preliminary report is not a written representation as to the
condition of title and may not list all liens, defects, and encumbrances
affecting title to the land.
THIS REPORT (AND ANY SUPPLEMENTS OR AMENDMENTS HERETO) IS ISSUED SOLELY FOR
THE PURPOSE OF FACILITATING THE ISSUANCE OF A POLICY OF TITLE INSURANCE AND
NO LIABILITY IS ASSUMED HEREBY. IF IT IS DESIRED THAT LIABILITY BE ASSUMED
PRIOR TO THE ISSUANCE OF A POLICY OF TITLE INSURANCE, A BINDER OR
COMMITMENT SHOULD BE REQUESTED.
The form of policy of title insurance contemplated by this report is:
California Land Title Association Standard Coverage Policy
/s/ Xxxxx Xxxxxxxx
------------------------
Miles X. Xxxxxxxx
--------------------------------------------------------------------------------
SCHEDULE A
Order No. 105494 MEW Your Ref:
--------------------------------------------------------------------------------
1. The estate or interest in the land hereinafter described or referred to
covered by this report is:
A FEE
2. Title to said estate or interest at the date hereof is vested in:
XXXXXX X. XXXXXXX, XX., WHO ACQUIRED TITLE AS AN UNMARRIED MAN
3. The land referred to in this report is situated in the State of
California, County of Alameda and is described as follows:
CITY OF EMERYVILLE
PARCEL "B", PARCEL MAP NO. 2108, FILED JUNE 17, 1977, IN MAP BOOK 97, PAGE
40, ALAMEDA COUNTY RECORDS.
ASSESSOR'S PARCEL NO. 000-0000-000
--------------------------------------------------------------------------------
SCHEDULE B
Page 1
Order No: 105494 MEW Your Ref:
--------------------------------------------------------------------------------
At the date hereof exceptions to coverage in addition to the printed
Exceptions and Exclusions in the policy form designated on the face page
of this Report would be as follows:
B 1. The Lien of Supplemental Taxes, if any, assessed pursuant to the
provisions of Chapter 3.5, Revenue and Taxation Code, Sections 75 et
seq.
Y 2. County and City taxes for the Fiscal Year 1994 - 1995
1st Installment : $14,502.81 PAID
2nd Installment : $14,502.81 NOT DUE
Land : $366,429.00
Improvements : $2,228,455.00
Personal Ppty. : NONE
Exemption : NONE
A.P. No. : 000-0000-000
Code Area : 14-003
C 3. The herein described property lies within the boundaries of
a proposed assessment for BAY ST./SHELLMOUND ST. EXTENSION A.D.
under Act of 1911 or 1915 or 1919, proposed Assessment No.
(PENDING), in the tentative amount of (AMOUNT PENDING).
K NOTICE OF ASSESSMENT, BAY STREET-SHELLMOUND STREET EXTENSION
ASSESSMENT DISTRICT, BY THE CITY OF EMERYVILLE, IN THE AMOUNT OF
$20,427.00, RECORDED JANUARY 7, 1994, SERIES NO. 94-008822,
OFFICIAL RECORDS.
D 4. NON-BUILDABLE AREA OVER THE NORTHWESTERLY 50 FEET OF THE
NORTHEASTERLY 131.59 FEET OF SAID LAND, AS SET FORTH ON THE
RECORDED PARCEL MAP.
E 5. EASEMENT FOR INGRESS, EGRESS AND PUBLIC UTILITY PURPOSES
OVER THE NORTHWESTERLY PORTION OF SAID LAND, AS SHOWN UPON THE
RECORDED PARCEL MAP AND AS CONVEYED TO EMERYVILLE ECONOMIC
DEVELOPMENT FUND, A NON-PROFIT CORPORATION, BY DEED RECORDED
AUGUST 25, 1977, REEL 5019, IMAGE 505, OFFICIAL RECORDS.
F 6. Easement, upon the terms, covenants and conditions thereof,
for the purposes stated herein and incidental purposes created in
that certain instrument
Recorded : DECEMBER 22, 1986, SERIES NO. 86-322148, OFFICIAL
RECORDS
Granted to : CETUS CORPORATION, A DELAWARE CORPORATION
Purpose : ACCESS, INGRESS AND EGRESS PURPOSES
Affects : A PORTION OF SAID PREMISES
G 7. Unrecorded lease upon the terms and conditions contained therein
Lessor : XXXXXX X. XXXXXXX, XX.
Lessee : CETUS CORPORATION
--------------------------------------------------------------------------------
SCHEDULE B
Page 2 (continued)
Order No: 105494 MEW Your Ref:
--------------------------------------------------------------------------------
Disclosed by : MEMORANDUM OF LEASE
Recorded : DECEMBER 1, 1987, SERIES NO. 87-320030, OFFICIAL
RECORDS
H Said Lease contains provisions for renewals.
I The present ownership of said leasehold and other matters affecting the
interest of the lessee are not shown herein.
J 8. A Deed of Trust to secure an indebtedness in the original amount shown
below
Amount : $3,000,000.00
Dated : JANUARY 19, 1988
Trustor : XXXXXX X. XXXXXXX, XX., AN UNMARRIED MAN
Trustee : XXXXXXX RECONVEYANCE COMPANY, A CALIFORNIA
CORPORATION
Beneficiary : HOME SAVINGS OF AMERICA, F.A., A FEDERALLY
CHARTERED SAVINGS AND LOAN ASSOCIATION
Address : X.X. XXX 0000
XXXXXXXX, XXXXXXXXXX 00000-0000
Loan No. : 849904-8
Recorded : FEBRUARY 8, 1988, SERIES NO. 88-033494, OFFICIAL
RECORDS
L 9. Financing Statement to secure an indebtedness of
Amount : NOT SHOWN
Debtor : CETUS CORPORATION
Secured Party : SECURITY PACIFIC EQUIPMENT LEASING, INC.
Dated : NOVEMBER 10, l988
Recorded : JANUARY 18, 1989, SERIES NO. 89-014007, OFFICIAL
RECORDS
(AFFECTS THE LEASEHOLD ESTATE)
M An amendment thereto was recorded OCTOBER 22, 1993, Series
No. 93-376002, Official Records, as to A CONTINUATION STATEMENT.
N 10. Unrecorded lease upon the terms and conditions contained therein
Lessor : XXXXXX X. XXXXXXX, XX.
Lessee : CHIRON CORPORATION
Disclosed by : NOTICE OF NONRESPONSIBILITY BY OWNER
Recorded : DECEMBER 4, 1992, SERIES NO. 92-394886,
OFFICIAL RECORDS
O 11. Any and all unrecorded leases.
-------------------------------------------------------------------------------
SCHEDULE B
Page 3 (continued)
Order No: 105494 MEW Your Ref:
P 12. The possible community interest of the spouse of VESTEE, if
such person is married.
Q 13. If extended coverage title insurance will be requested, or
if this report has been issued to facilitate a request for
extended coverage title insurance, then the following would also
be exceptions to coverage:
R Any facts, rights, interests or claims which are not disclosed
by the public records but which could by ascertained by making
inquiry of the parties or persons in possession of the herein
described land.
S Any easements, liens (including but not limited to any Statutory
Liens for labor or materials arising from any on-going or
recently completed works of improvement), encumbrances, facts,
rights, interest or claims which are not shown by the public
records but which could be ascertained by an inspection of the
herein described land.
T Discrepancies, conflicts in boundary lines, shortages in area,
encroachments or any other facts which a correct survey of the
herein described land would disclose which are not shown by the
public records and the requirement that said survey meets with
the minimum standards for ALTA/ACSM land title surveys.
U INFORMATIONAL NOTE:
EFFECTIVE JULY 1, 1994, ALL DOCUMENTS TO BE RECORDED IN
CALIFORNIA MUST CONFORM TO THE FOLLOWING:
(A) A PAGE FOR THE PURPOSE OF RECORDING SHALL BE ONE
PRINTED SIDE OF A SINGLE PIECE OF PAPER WHICH IS 8-1/2
INCHES BY 11 INCHES.
(B) A SHEET SHALL BE ONE PRINTED SIDE OF A SINGLE PIECE OF
PAPER WHICH IS NOT EXACTLY 8-1/2 INCHES BY 11 INCHES
BUT NOT GREATER THAN 8-1/2 INCHES BY 14 INCHES.
(C) IF A PAGE OR SHEET DOES NOT CONFORM TO THE DIMENSIONS
OF 8-1/2 INCHES BY 11 INCHES, THE RECORDER SHALL CHARGE
$3.00 EXTRA PER PAGE OR SHEET OF THE DOCUMENT.
THESE CHANGES ARE PURSUANT TO GOVERNMENT CODE SECTIONS
27201, 27361 AND 27361.5 WHICH WERE ENACTED IN THE 1992
LEGISLATIVE SESSION, TO BE EFFECTIVE JULY 1, 1994.
(D) THE ALAMEDA COUNTY RECORDER INTERPRETS THE ABOVE
STATUTES TO EXCLUDE FROM RECORDING, AND THEREFORE WILL
NOT ACCEPT, ANY DOCUMENT CONTAINING ONE OR MORE SHEETS
OR PAGES GREATER THAN 8-1/2 INCHES BY 14 INCHES.
SCHEDULE B
Page 4 (continued)
Order No: 105494 MEW Your Ref:
W NOTE:
According to the Public Records, no Deed conveying the property
described in this Report has been recorded within a period of two
years prior to the date of this Report, except as shown herein:
None
X MEW/lt
1/20/95
NOTICE
SECTION 12413.1 OF THE CALIFORNIA INSURANCE CODE, EFFECTIVE JANUARY 1, 1990,
REQUIRES THAT ANY TITLE INSURANCE COMPANY, UNDERWRITTEN TITLE COMPANY, OR
CONTROLLED ESCROW COMPANY HANDLING FUNDS IN AN ESCROW OR SUB-ESCROW CAPACITY,
WAIT A SPECIFIED NUMBER OF DAYS AFTER DEPOSITING FUNDS, BEFORE RECORDING ANY
DOCUMENTS IN CONNECTION WITH THE TRANSACTION OR DISBURSING FUNDS. THIS
STATUTE ALLOWS FOR FUNDS DEPOSITED BY WIRE TRANSFER TO BE DISBURSED THE SAME
DAY AS DEPOSIT. IN THE CASE OF CASHIER'S CHECKS OR CERTIFIED CHECKS, FUNDS
MAY BE DISBURSED THE NEXT DAY AFTER DEPOSIT. IN ORDER TO AVOID UNNECESSARY
DELAYS OF THREE TO SEVEN DAYS, OR MORE, PLEASE USE WIRE TRANSFER, CASHIER'S
CHECKS, OR CERTIFIED CHECKS WHENEVER POSSIBLE.
IF YOU HAVE ANY QUESTIONS ABOUT THE EFFECT OF THIS NEW LAW, PLEASE CONTACT
YOUR LOCAL CHICAGO TITLE OFFICE FOR MORE DETAILS.
Chicago Title [LOGO]
LIST OF PRINTED EXCEPTIONS AND EXCLUSIONS
CALIFORNIA LAND TITLE ASSOCIATION STANDARD COVERAGE POLICY - 1990
EXCLUSIONS FROM COVERAGE
The following matters are expressly excluded from the coverage of this
policy and the Company will not pay loss or damage, costs, attorneys' fees
or expenses which arise by reason of:
1. (a) Any law, ordinance or governmental regulation (including but
not limited to building and zoning laws, ordinances, or
regulations) restricting, regulating, prohibiting or relating to
(i) the occupancy, use, or enjoyment of the land; (ii) the
character, dimensions or location of any improvement now or
hereafter erected on the land; (iii) a separation in ownership or
a change in the dimensions or area of the land or any parcel of
which the land is or was a part; or (iv) environmental
protection, or the effect of any violation of these laws,
ordinances or governmental regulations, except to the extent that
a notice of the enforcement thereof or a notice of a defect, lien
or encumbrance resulting from a violation or alleged violation
affecting the land has been recorded in the public records at
Date of Policy.
(b) Any governmental police power not excluded by (a) above,
except to the extent that a notice of the exercise thereof or a
notice of a defect, lien or encumbrance resulting from a
violation or alleged violation affecting the land has been
recorded in the public records at Date of Policy.
2. Rights of eminent domain unless notice of the exercise
thereof has been recorded in the public records at Date of
Policy, but not excluding from coverage any taking which has
occurred prior to Date of Policy which would be binding on the
rights of a purchaser for value without knowledge.
3. Defects, liens, encumbrances, adverse claims or other matters:
(a) whether or not recorded in the public records at Date of
Policy, but created, suffered, assumed or agreed to by the
insured claimant;
(b) not known to the Company, not recorded in the public records
at Date of Policy, but known to the insured claimant and not
disclosed in writing to the Company by the insured claimant prior
to the date the insured claimant became an insured under this
policy;
(c) resulting in no loss or damage to the insured claimant;
(d) attaching or created subsequent to Date of Policy; or
(e) resulting in loss or damage which would not have been
sustained if the insured claimant had paid value for the insured
mortgage or the estate or interest insured by this policy.
4. Unenforceability of the lien of the insured mortgage because
of the inability or failure of the insured at Date of Policy, or
the inability or failure of any subsequent owner of the
indebtedness, to comply with applicable doing business laws of
the state in which the land is situated.
5. Invalidity or unenforceability of the lien of the insured
mortgage, or claim thereof, which arises out of the transaction
evidenced by the insured mortgage and is based upon usury or any
consumer credit protection or truth-in-lending law.
6. Any claim which arises out of the transaction vesting in the
insured the estate or interest insured by this policy or the
transaction creating the interest of the insured lender, by reason
of the operation of federal bankruptcy, state insolvency or
similar creditors' rights laws.
EXCEPTIONS FROM COVERAGE
This policy does not insure against loss or damage (and the Company will
not pay costs, attorneys' fees or expenses) which arise by reason of:
1. Taxes or assessments which are not shown as existing liens by the
records of any taxing authority that levies taxes or assessments on
real property or by the public records.
Proceedings by a public agency which may result in taxes or
assessments, or notices of such proceedings, whether or not shown by
the records of such agency or by the public records.
2. Any facts, rights, interests or claims which are not shown by the
public records but which could be ascertained by an inspection of the
land or which may be asserted by persons in possession thereof.
3. Easements, liens or encumbrances, or claims thereof, which are not
shown by the public records.
4. Discrepancies, conflicts in boundary lines, shortage in area,
encroachments, or any other facts which a correct survey would
disclose, and which are not shown by the public records.
5. (a) Unpatented mining claims; (b) reservations or exceptions in
patents or in Acts authorizing the issuance thereof; (c) water rights,
claims or title to water, whether or not the matters excepted under
(a), (b) or (c) are shown by the public records.
AMERICAN LAND TITLE ASSOCIATION RESIDENTIAL TITLE INSURANCE POLICY (6-1-87)
EXCLUSIONS
In addition to the exceptions in Schedule B, you are not insured against
loss, costs, attorney's fees and expenses resulting from:
1. Governmental policy power, and the existence or violation of any
law or government regulation. This includes building and zoning
ordinances and also laws and regulations concerning:
- land use - land division
- improvements on the land - environmental protection
This exclusion does not apply to the violations or the enforcement of
these matters which appear in the public records at Policy Date. This
exclusion does not limit the zoning coverage described in Items 12 and 13
of Covered Title Risks.
2. The right to take the land by condemning it, unless:
- a notice of exercising the right appears in the public records
on the Policy Date
- the taking happened prior to the Policy Date and is binding on
you if you bought the land without knowing of the taking.
3. Title Risks:
- that are created, allowed, or agreed to by you
- that are known to you, but not to us, on the Policy Date - unless
they appeared in the public records
- that result in no loss to you
- that first affect your title after the Policy Date - this does not
limit the labor and material lien coverage in Item 8 of Covered
Title Risks
4. Failure to pay value for your title.
5. Lack of a right:
- to any land outside the area specifically described and referred
to in Item 3 of Schedule A, or
- in streets, alleys, or waterways that touch your land
This exclusion does not limit the access coverage in Item 5 of
Covered Title Risks.
EXCEPTIONS FROM COVERAGE
In addition to the Exclusions, you are not insured against loss, costs,
attorneys' fees and expenses resulting from:
1. Someone claiming an interest in your land by reason of:
A. Easements not shown in the public records
B. Boundary disputes not shown in the public records
C. Improvements owned by your neighbor placed on your land
2. If, in addition to a single family residence, your existing
structure consists of one or more Additional Dwelling Units, Item 12 of
Covered Title Risks does not insure you against loss, costs, attorneys'
fees, and expenses resulting from:
A. The forced removal of any Additional Dwelling Unit, or,
B. The forced conversion of any Additional Dwelling Unit back
to its original use.
If said Additional Dwelling Unit was either constructed or
converted to use as a dwelling unit in violation of any law or
government regulation.
AMERICAN LAND TITLE ASSOCIATION LOAN POLICY (10-17-92)
WITH ALTA ENDORSEMENT - FORM 1 COVERAGE
and
AMERICAN LAND TITLE ASSOCIATION LEASEHOLD LOAN POLICY (10-17-92)
WITH ALTA ENDORSEMENT - FORM 1 COVERAGE
EXCLUSIONS FROM COVERAGE
The following matters are expressly excluded from the coverage of this
policy and the Company will not pay loss or damage, costs, attorneys' fees
or expenses which arise by reason of:
1. (a) Any law, ordinance or governmental regulation (including but not
limited to building and zoning laws, ordinances, or regulations)
restricting, regulating, prohibiting or relating to (i) the occupancy,
use, or enjoyment of the land; (ii) the character, dimensions or
location of any improvement now or hereafter erected on the land;
(iii) a separation in ownership or a change in the dimensions or area
of the land or any parcel of which the land is or was a part; or (iv)
environmental protection, or the effect of any violation of these laws,
ordinances or governmental regulations, except to the extent that a
notice of the enforcement thereof or a notice of a defect, lien or
encumbrance resulting from a violation or alleged violation affecting
the land has been recorded in the public records at Date of Policy.
(b) Any governmental police power not excluded by (a) above, except
to the extent that a notice of the exercise thereof or a notice of a
defect, lien or encumbrance resulting from a violation or alleged
violation affecting the land has been recorded in the public records
at Date of Policy.
2. Rights of eminent domain unless notice of the exercise thereof
has been recorded in the public records at Date of Policy, but not
excluding from coverage any taking which has occurred prior to Date of
Policy which would be binding on the rights of a purchaser for value
without knowledge.
3. Defects, liens, encumbrances, adverse claims or other matters:
(a) created, suffered, assumed or agreed to by the insured claimant;
(b) not known to the Company, not recorded in the public records
at Date of Policy, but known to the insured claimant and not
disclosed in writing to the Company by the insured claimant prior
to the date the insured claimant became an insured under this
policy;
(c) resulting in no loss or damage to the insured claimant;
(d) attaching or created subsequent to Date of Policy (except to
the extent that this policy insures the priority of the lien of
the insured mortgage over any statutory lien for services, labor
or material or to the extent insurance is afforded herein as to
assessments for street improvements under construction or
completed at Date of Policy); or
(e) resulting in loss or damage which would not have been
sustained if the insured claimant had paid value for the insured
mortgage.
4. Unenforceability of the lien of the insured mortgage because
of the inability or failure of the insured at Date of Policy, or
the inability or failure of any subsequent owner of the
indebtedness, to comply with applicable doing business laws of
the state in which the land is situated.
5. Invalidity or unenforceability of the lien of the insured
mortgage, or claim thereof, which arises out of the transaction
evidenced by the insured mortgage and is based upon usury or any
consumer credit protection or truth in lending law.
6. Any statutory lien for services, labor or materials (or the
claim or priority of any statutory lien for services, labor or
materials over the lien of the insured mortgage) arising from an
improvement or work related to the land which is contracted for
and commenced subsequent to Date of Policy and is not financed in
whole or in part by proceeds of the indebtedness secured by the
insured mortgage which at Date of Policy the insured has advanced
or is obligated to advance.
7. Any claim, which arises out of the transaction creating the
interest of the mortgagee insured by this policy, by reason of
the operation of federal bankruptcy, state insolvency, or similar
creditors' rights laws, that is based on:
(i) the transaction creating the interest of the insured
mortgagee being deemed a fraudulent conveyance or fraudulent
transfer; or
(ii) the subordination of the interest of the insured mortgagee
as a result of the application of the doctrine of equitable
subordination; or
(iii) the transaction creating the interest of the insured
mortgagee being deemed a preferential transfer except where the
preferential transfer results from the failure:
(a) to timely record the instrument of transfer; or
(b) of such recordation to impart notice to purchaser for
value or a judgment or lien creditor.
The above policy forms may be issued to afford either Standard Coverage or
Extended Coverage. In addition to the above Exclusions from Coverage, the
Exceptions from Coverage in a Standard Coverage policy will also include
the following General Exceptions:
EXCEPTIONS FROM COVERAGE
The policy does not insure against loss or damage (and the Company will not
pay costs, attorneys' fees or expenses) which arise by reason of:
1. Taxes or assessments which are not shown as existing liens by the
records of any taxing authority that levies taxes or assessments on real
property or by the public records.
Proceedings by a public agency which may result in taxes or
assessments, or notices of such proceedings, whether or not shown by the
records of such agency or by the public records.
2. Any facts, rights, interests or claims which are not shown by the
public records but which could be ascertained by an inspection of the land
or by making inquiry of persons in possession thereof.
3. Easements, liens or encumbrances, or claims thereof, which are not
shown by the public records.
4. Discrepancies, conflicts in boundary lines, shortage in area,
encroachments, or any other facts which a correct survey would disclose,
and which are not shown by the public records.
5. (a) Unpatented mining claims; (b) reservations or exceptions in
patents or in Acts authorizing the issuance thereof; (c) water rights,
claims or title to water, whether or not the matters excepted under (a),
(b) or (c) are shown by the public records.
AMERICAN LAND TITLE ASSOCIATION OWNER'S POLICY (10-17-92)
and
AMERICAN LAND TITLE ASSOCIATION LEASEHOLD OWNER'S POLICY (10-17-92)
EXCLUSIONS FROM COVERAGE
The following matters are expressly excluded from the coverage of this
policy and the Company will not pay loss or damage, costs, attorneys' fees
or expenses which arise by reason of:
1. (a) Any law, ordinance or governmental regulation (including
but not limited to building and zoning laws, ordinances, or
regulations) restricting, regulating, prohibiting or relating to
(i) the occupancy, use, or enjoyment of the land; (ii) the
character, dimensions or location of any improvement now or
hereafter erected on the land; (iii) a separation in ownership or a
change in the dimensions or area of the land or any parcel of which
the land is or was a part; or (iv) environmental protection, or the
effect of any violation of these laws, ordinances or governmental
regulations, except to the extent that a notice of the enforcement
thereof or a notice of a defect, lien or encumbrance resulting from
a violation or alleged violation affecting the land has been
recorded in the public records at Date of Policy.
(b) Any governmental police power not excluded by (a) above, except to
the extent that a notice of the exercise thereof or a notice of a
defect, lien or encumbrance resulting from a violation or alleged
violation affecting the land has been recorded in the public records
at Date of Policy.
2. Rights of eminent domain unless notice of the exercise thereof has
been recorded in the public records at Date of Policy, but not
excluding from coverage any taking which has occurred prior to Date
of Policy which would be binding on the rights of a purchaser for
value without knowledge.
3. Defects, liens, encumbrances, adverse claims or other matters:
(a) created, suffered, assumed or agreed to by the insured claimant;
(b) not known to the Company, not recorded in the public records at Date
of Policy, but known to the insured claimant and not disclosed in
writing to the Company by the insured claimant prior to the date the
insured claimant became an insured under this policy;
(c) resulting in no loss or damage to the insured claimant;
(d) attaching or created subsequent to Date of Policy; or
(e) resulting in loss or damage which would not have been sustained if
the insured claimant had paid value for the estate or interest insured
by this policy.
4. Any claim, which arises out of the transaction vesting in the insured
the estate or interest insured by this policy, by reason of the
operation of federal bankruptcy, state insolvency, or similar
creditors' rights laws, that is based on:
(i) the transaction creating the estate or interest insured by this
policy being deemed a fraudulent conveyance or fraudulent
transfer; or
(ii) the transaction creating the estate or interest insured by this
policy being deemed a preferential transfer except where the
preferential transfer results from the failure.
(a) to timely record the instrument of transfer; or
(b) of such recordation to impart notice to a purchaser for
value or a judgment or lien creditor.
The above policy forms may be issued to afford either Standard Coverage or
Extended Coverage. In addition to the above Exclusions from Coverage, the
Exceptions from Coverage in a Standard Coverage policy will also include
the following General Exceptions:
EXCEPTIONS FROM COVERAGE
This policy does not insure against loss or damage (and the Company will
not pay costs, attorneys' fees or expenses) which arise by reason of:
1. Taxes or assessments which are not shown as existing liens by the
records of any taxing authority that levies taxes or assessments on real
property or by the public records.
Proceedings by a public agency which may result in taxes or
assessments, or notices of such proceedings, whether or not shown by the
records of such agency or by the public records.
2. Any facts, rights, interests or claims which are not shown by the
public records but which could be ascertained by an inspection of the land
or by making inquiry of persons in possession thereof.
3. Easements, liens or encumbrances, or claims thereof, which are not
shown by the public records.
4. Discrepancies, conflicts in boundary lines, shortage in area,
encroachments, or any other facts which a correct survey would disclose,
and which are not shown by the public records.
5. (a) Unpatented mining claims; (b) reservations or exceptions in
patents or in Acts authorizing the issuance thereof; (c) water rights,
claims or title to water, whether or not the matters excepted under (a),
(b) or (c) are shown by the public records.
EXHIBIT E
-----------
MEMORANDUM OF OPTION AGREEMENT
--------------------------------
RECORDING REQUESTED BY |
AND WHEN RECORDED MAIL TO: |
|
Xxxxxxx, Xxxxxxx & Xxxxxxxx |
One Market |
Xxxxx Xxxxxx Xxxxx, 00xx Xxxxx |
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 |
Attn: A. Xxxxx Xxxxxxx, Esq. |
|
|THE AREA ABOVE IS RESERVED FOR RECORDER'S USE
--------------------------------------------------------------------------------
MEMORANDUM OF OPTION AGREEMENT
--------------------------------------------------------------------------------
THIS MEMORANDUM OF OPTION AGREEMENT ("Memorandum") is entered as of the
____ day of June, 1995, by and between XXXXXX X. XXXXXXX, XX., an individual
("Xxxxxxx"), and CHIRON CORPORATION, a Delaware corporation ("Chiron").
THIS MEMORANDUM is entered on the basis of the following facts,
intentions and understandings of the parties:
X. Xxxxxxx is the owner of the real property described in EXHIBIT 1,
attached hereto.
X. Xxxxxxx, as optionor, and Chiron, as optionee, have entered an
Option Agreement dated as of January 1, 1995. Pursuant to the Option
Agreement, Chiron has the option ("Option") to purchase the Property from
Xxxxxxx.
X. Xxxxxxx and Chiron desire to execute and record this Memorandum to
give notice of the Option.
NOW, THEREFORE, in consideration of the mutual covenants and promises of
the parties, the parties agree as follows:
x. XXXXX OF OPTION. Xxxxxxx hereby grants Chiron the Option to
purchase the Property, subject to and in accordance with the terms set forth
in the Option Agreement.
2. TERM. The term of the Option commenced as of January 1, 1995. If
not previously terminated, the term shall expire on December 31, 1999.
EXHIBIT E
---------
1.
3. CONFLICT. In the event of any conflict between the terms of this
Memorandum and the terms of the Option Agreement, the terms of the Option
Agreement shall control.
4. NOTICE. The purpose of this Memorandum is to give notice of the
Option.
IN WITNESS WHEREOF, the parties have executed this Memorandum, on the
date(s) set forth below, as of the day and year first above written.
"Xxxxxxx"
-------------------------------------
Xxxxxx X. Xxxxxxx, Xx., an individual
Date:
-------------------------------
"Chiron"
CHIRON CORPORATION, a Delaware
corporation
By:
---------------------------------
Name:
----------------------------
Its:
-----------------------------
Date:
-------------------------------
EXHIBIT E
---------
2.
EXHIBIT 1
PROPERTY DESCRIPTION
CITY OF EMERYVILLE
PARCEL "B", PARCEL MAP NO. 2108, FILED JUNE 17, 1977, IN MAP BOOK 97, PAGE
40, ALAMEDA COUNTY RECORDS.
ASSESSOR'S PARCEL NO. 000-0000-000
[CHIRON LETTERHEAD]
February 28, 1996
[GRAPHIC]
VIA HAND DELIVERY
AND U.S. MAIL
Xxxxxx X. Xxxxxxx, Xx.
0000 Xxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Re: Option Agreement for Real Property and Improvements
(Including Buildings "M" and "G") in Emeryville, California
-----------------------------------------------------------
Dear Xx. Xxxxxxx:
Chiron Corporation, as Buyer, and you, as Seller, entered into an Option
Agreement dated as of January 1, 1995. The Option Agreement relates to real
property ("Property") in Emeryville, California, which includes Buildings "M"
and "G." The Property is more particularly described in the Option Agreement.
The Option Agreement provides that Chiron has the option ("Option") to
purchase the Property by exercising the Option prior to January 1, 2000 by
delivering a written notice ("Exercise Notice") to you by registered mail or
personal delivery stating that Chiron desires to close escrow. This
letter constitutes the Exercise Notice under the Option Agreement.
Section 11.a of the Option Agreement provides that close of escrow
("Close of Escrow") is to occur on the date ("Closing Date") determined by
you; provided that (i) the Closing Date shall be not later than February 27,
1997 (one (1) year after the date of this Exercise Notice), (ii) the Closing
Date shall not be earlier than August 27, 1996 (six (6) months after the date
of this Exercise Notice) and (iii) you will give Chiron not less than
forty-five (45) days' prior written notice of the Closing Date.
You are not required to notify Chiron of the Closing Date at this time.
However, Chiron would appreciate your notifying me as soon as possible of the
date you desire to be the Closing Date.
CHIRON CORPORATION - 0000 Xxxxxx Xxxxxx - Xxxxxxxxxx, XX - 00000-0000 -
000-000-0000 LAW DEPARTMENT - General Fax: 000-000-0000 - Intellectual
Property Fax: 000-000-0000
Xxxxxx X. Xxxxxxx, Xx. February 28, 1996
Page 2
It is my understanding that the Option Agreement provides for
flexibility in establishing the Closing Date in order to allow you to effect
the transfer of the Property as an exchange in accordance with Section 1031
of the Internal Revenue Code. Under Section 1031, you may be entitled to
defer the taxes otherwise due upon the transfer of the Property, even if you
acquire "replacement property" after you transfer the Property to Chiron. It
is Chiron's hope that, based on the flexibility provided for transfers
pursuant to Section 1031 you will elect to have the Closing Date as soon as
possible after August 27, 1996.
I am also sending a copy of this letter to Xxxxxx Xxxxxxxxx, your
counsel. If Xx. Xxxxxxxxx or you have any questions regarding this letter,
please contact Xxxxx Xxxxxxx (000) 000-0000.
Thank you for your assistance in this matter. I look forward to working
with you as we conclude the transfer of the Property.
Very truly yours,
/s/ Xx Xxxxxx
Xx Xxxxxx
Director, Facilities Planning
cc: Mr. Xxxxxx Xxxxxxxx
A. Xxxxx Xxxxxxx, Esq. (via Facsimile)
Xxxxxx Xxxxxxxxx, Esq. (via U.S. Mail)
