THIRD AMENDMENT TO LEASE
This Third Amendment to Sublease and Lease Agreement is dated, for
reference purposes only, as of April 16, 1997, and is entered into by and
between TMT Associates, LLC ("Landlord") and Inhale Therapeutics Systems,
Inc. ("Tenant"), for the purpose of amending that certain Sublease and Lease
Agreement dated as of October 2, 1996, as previously amended by the First
Amendment to Sublease and Lease Agreement dated as of October 30, 1996, and
by the letter amendment dated April 9, 1997 (collectively the "Lease") by and
between Landlord and Tenant concerning the lease of the property located at
0000 Xxxxxxxxxx Xxx, Xxxxxxx, Xxxxxxxxxx, as more specifically described in
the Lease (the "Premises").
For valuable consideration, the receipt and sufficiency of which are hereby
acknowledged (including, without limitation, the making of a $5,000,000 loan
by Tenant to Landlord the ("$5,000,000 Loan"), the parties agree as follows:
1. CONDITIONS TO EFFECTIVENESS: The effectiveness of this Third Amendment
is hereby conditional upon the closing of the $5,000,000 Loan and
acquisition of fee simple title to the Premises by Landlord by April
30, 1997 (collectively the "Closing"). Unless and until such
transactions shall have been consummated, this Third Amendment shall be
of no force or effect.
2. DEFINITIONS: All capitalized terms used but not defined herein
shall have the meanings assigned to them in the Lease.
3. TENANT IMPROVEMENT LOAN; PARAGRAPH 3.1(b) OF LEASE. Landlord and
Tenant acknowledge and agree that Paragraph 3.1(b) of the Lease
provides that Tenant shall pay an interest rate under the Tenant
Improvement Loan which is equal to the rate payable by Landlord
thereunder, plus two percent (2%). Landlord and Tenant further
acknowledge and agree that such two percent (2%) increase in the
interest rate payable by Tenant under the Tenant Improvement Loan is for
the purpose of mitigating the tax impacts on Landlord of providing the
Tenant Improvement Loan to Tenant, due to the fact that all rent payable
to Landlord under the Lease must be recognized as income, but that the
principal amount of the Tenant Improvement Loan repaid by Landlord cannot
be deducted. Landlord and Tenant shall use due diligence and
reasonable efforts to investigate alternate means by which the tax impacts
on Landlord in connection with the Tenant Improvement Loan can be
eliminated in a manner other than the payment by Tenant of the additional
two percent (2%) to be included in the interest rate payable by Tenant
under the Tenant Improvement Loan. In the event an alternative method can
be determined which is approved by both Landlord and Tenant, such
approval not to be unreasonably withheld, then the additional two percent
(2%) to be included in the interest rate payable by the Tenant under
the Tenant Improvement Loan shall be deleted from Paragraph 3.1(b)
of the Lease at such time as both Landlord and Tenant have reasonably
approved such alternative, which may include, by way of example,
and not by way of
limitation, allocation to Landlord of the right to an increased amount
of depreciation on the tenant improvements.
4. RENT COMMENCEMENT DATE: The parties agree that Tenant's obligation
to pay Base Rent under the Lease shall commence upon July 1, 1997.
5. RETENTION OF BROKERS: Landlord and Tenant shall mutually agree upon
the broker to be retained in connection with pursuing any Tenant
Improvement Loan, other than a loan from SunAmerica Life Insurance Company.
6. COUNTERPARTS: This Third Amendment may be executed in any number of
counterparts, each of which shall be deemed an original and all of
which shall be deemed one and the same agreement.
7. NO FURTHER MODIFICATION: Except as modified by this Third
Amendment, the Lease remains unchanged and in full force and effect.
In Witness Whereof, the undersigned have entered into this Third Amendment,
to be effective as of the Closing:
Inhale Therapeutic Systems, Inc.
BY: ____________________________________________
NAME: ____________________________________________
TITLE: ____________________________________________
TMT ASSOCIATES LLC,
a California limited liability company
BY: /s/ Xxxx Xxxxxx
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NAME: Xxxx Xxxxxx
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TITLE: Member
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AND BY: /s/ Xxxxxx Xxxxxxx
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NAME: Xxxxxx Xxxxxxx
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TITLE: Member
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