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EXHIBIT 10.8C
VINTAGE PARK
Foster City, California
RESEARCH AND DEVELOPMENT LEASE
BASIC LEASE INFORMATION
DATE: May 21, 1997 LEASE REFERENCE
LANDLORD: WCB SIXTEEN LIMITED
PARTNERSHIP
TENANT: Penederm, Inc., a
California corporation
PREMISES AND BUILDING: 000 Xxxxxxxx Xx., Xxxxx X XXXXXXXXX X
Xxxxxx Xxxx, XX 00000
SQUARE FEET: Approximately 14,842 sq. ft.
TERM COMMENCEMENT: May 1, 1998 PARAGRAPH 2
TERM EXPIRATION: April 30, 2003 PARAGRAPH 2
BASE RENT: PARAGRAPH 3(a)
05/01/98 - 04/30/99 $29,684.00 per mo. $2.00/Sq.Ft.
05/01/99 - 04/30/00 $30,426.10 per mo. $2.05/Sq.Ft.
05/01/00 - 04/30/01 $31,168.20 per mo. $2.10/Sq.Ft.
05/01/01 - 04/30/02 $31,910.30 per mo. $2.15/Sq.Ft.
05/01/02 - 04/30/03 $32,652.40 per mo. $2.20/Sq.Ft.
TENANT'S PERCENTAGE SHARE: 57.69% PARAGRAPH 4(a)
INITIAL ESTIMATED MONTHLY OPERATING
EXPENSES AND PROPERTY TAXES: Not available at this time PARAGRAPH 4(c)
USE: Tenant shall use the Premises for laboratory research PARAGRAPH 6
and development, general office, storage and all other
legally related uses.
SECURITY DEPOSIT: $32,652.40 PARAGRAPH 15
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XXXXXX'S ADDRESS FOR NOTICES: PARAGRAPH 19
Penederm, Inc.
000 Xxxxxxxx Xxxxx, Xxxxx X
Xxxxxx Xxxx, Xxxxxxxxxx 00000
XXXXXXXX'S ADDRESS FOR NOTICES:
WCB Sixteen Limited Partnership PARAGRAPH 19
c/o Northwest Asset Management Company, Inc.
000 Xxxxxxx Xxxx Xxxxx, Xxxxx 000
Xxxxxx Xxxx, XX 00000
EXHIBIT(S) AND ADDENDUM: PARAGRAPH 21
Exhibit A: Diagram of Premises
TENANT IMPROVEMENT ALLOWANCE: $50,000.00 PARAGRAPH 2
DATE FOR DELIVERY OF INSTRUCTIONS
The provisions of the Lease identified above in the margin are those provisions
where references to particular Basic Lease Information appear. Each such
reference shall incorporate the applicable Basic Lease Information. In the event
of any conflict between any Basic Lease Information and the Lease, the latter
shall control.
TENANT LANDLORD
Penederm, Inc., WCB SIXTEEN LIMITED PARTNERSHIP,
a Delaware corporation a Delaware corporation
By: WCB SIXTEEN, INC.,
a Delaware corporation
General Partner
By: /s/ Xxxxxxx X. Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxxx
----------------------------- -------------------------
Its: Vice President, Operations Its: Vice President
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RESEARCH AND DEVELOPMENT
NET LEASE
---------------------
THIS LEASE, dated May 21, 1997 for purposes of reference only, is made and
entered into by and between WCB SIXTEEN LIMITED PARTNERSHIP, a Delaware limited
partnership ("Landlord") and Penederm, Inc., a California corporation
("Tenant").
WITNESSETH
1. PREMISES. Landlord hereby leases to Tenant, and Tenant hereby leases from
Landlord for the term of this Lease and at the rental and upon the conditions
set forth below, the premises described in the Basic Lease information and
identified on the floor plan attached hereto as Exhibit A. Subject to any
obligations of Landlord as set forth in an exhibit to this Lease relating to
initial improvement of the premises. Tenant shall accept the premises in its
"as-is" condition at the commencement of the term. The premises are located
within the building (the "Building") commonly known as described in the Basic
Lease Information.
2. TERM. The term of this Lease shall commence and, unless sooner terminated as
hereinafter provided, shall and on the dates respectively specified in the Basic
Lease Information. If Landlord, for any reason whatsoever, cannot deliver
possession of the premises to Tenant at the commencement of the term, this Lease
shall not be void or voidable, nor shall Landlord be liable to Tenant for any
loss or damage resulting therefrom, but in that event, subject to any contrary
provisions in any agreement with Landlord related to the initial improvement of
the premises, rental shall be waived for the period between commencement of the
term and the time when Landlord can deliver possession. No delay in delivery of
possession shall operate to extend the term.
3. RENT.
(a) Tenant shall pay to Landlord as rental the amount specified in the
Basic Lease Information as the Base Rent, payable in advance on the
commencement of the term and on or before the first day of each and
every successive calendar month during the term. If the term
commences on other than the first day of a calendar month, the first
payment of rent shall be appropriately prorated on the basis of a
30-day month.
(b) Tenant shall pay, as additional rent, all amounts of money required
to be paid to Landlord by Tenant hereunder in addition to monthly
rent, whether or not the same be designated "additional rent." If
such amounts are not paid at the time provided in this Lease, they
shall nevertheless be a collectable as additional rent with the next
installment of monthly rent thereafter falling due, but nothing
herein contained shall be deemed to suspend or delay the payment of
any amount of money at the time the same becomes due and payable
hereunder, or limit any other remedy of Landlord.
(c) Tenant hereby acknowledges that late payment by Xxxxxx to Landlord of
rent and other amounts due hereunder after the expiration of any
applicable grace period will cause Landlord to incur costs not
contemplated by this Lease, the exact amount of which will be
extremely difficult to ascertain. Such costs include, but are not
limited to, processing and accounting charges, and late charges which
may be imposed on Landlord by the terms of any trust deed covering
the premises. Accordingly, if any installment of rent or any other
sums due from Tenant shall not be received by Landlord when due,
Tenant shall pay to Landlord a late charge equal to 6% of such
overdue amount. The parties hereby agree that such late charge
represents a fair and reasonable estimate of the costs Landlord will
incur by
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reason of late payment by Xxxxxx. Acceptance of such late charge by
Landlord shall in no event constitute a waiver of Tenant's
default with respect to such overdue amount, nor prevent Landlord
from exercising any of the other rights and remedies granted
hereunder.
(d) Any amount due to Landlord, if not paid when due, shall bear
interest from the date due until paid at the rate of 10% per
annum or, if a higher rate is legally permissible, at the highest
rate legally permitted, provided that interest shall not be
payable on late charges incurred by Tenant nor on any amounts
upon which late charges are paid by Tenant to the extent such
interest would cause the total interest to be in excess of that
legally permitted. Payment of interest shall not excuse or cure
any default hereunder by Xxxxxx.
(c) All payments due from Tenant to Landlord hereunder shall be made
to Landlord without deduction or offset in lawful money of the
United States of America at Landlord's address for notices
hereunder, or to such other person or at such other place as
Landlord may from time to time designate in writing to Tenant.
4. TAXES AND OPERATING EXPENSES.
(a) This Lease is a net lease and Base Rent and additional rent shall be
paid to and received by Landlord net of all costs and expenses to
Landlord other than taxes upon the income of Landlord from all
sources. Tenant shall pay its percentage share, as specified in the
Basic Lease Information, of all Property Taxes assessed in respect of
the Building during the term, and its percentage share of all
Operating Expenses paid or incurred by Landlord during the term. For
the purposes hereof, "Property Taxes" shall mean all real property
taxes and assessments or governmentally imposed fees or charges (and
any tax or fee levied wholly or partly in lieu thereof) levied,
assessed, confirmed, imposed, or which have become a lien against the
Building (which for the purposes of defining "Property Taxes" shall
include the land underlying the Building) or payable during the term.
For the purposes hereof, "Operating Expenses" shall mean all expenses
and costs of every kind and nature which Landlord shall pay or become
obligated to pay because of or in connection with the ownership and
operation of the Building and surrounding property and supporting
facilities, including, without limitation: (1) all costs of
operation, maintenance and repair of the Building, (2) the cost of
all Insurance maintained by Landlord with respect to the Building,
and (3) the share allocable to the Building of dues and assessments
payable under any reciprocal easement or common area maintenance
agreements or declarations or to any owners' associations affecting
the Building. Landlord shall not collect in excess of one hundred
percent (100%) of all of Landlord's Operating Expenses and Landlord
shall not recover, through Operating Expenses, any item of costs more
than once. Operating Expenses for each calendar year shall be
adjusted to equal Landlord's reasonable estimate of Operating
Expenses had the total rentable area of the Building been occupied.
(b) In the event the Building is not separately assessed for tax
purposes, then the Property Taxes to be paid by Tenant shall be
Tenant's percentage share of the product obtained by multiplying the
total of the real property taxes and assessments levied against the
tax parcel of which the Building is a part by a fraction the
numerator of which is the rentable area of the Building and the
denominator of which is total rentable area of all improvements
located within the tax parcel of which the Building is a part.
(c) Tenant shall pay to Landlord each month at the same time and in the
same manner as monthly rent Tenant's percentage share of 1/12th of
Landlord's estimate of Property Taxes and Operating Expenses for the
then current calendar year, which for the calendar year for term
commencement as set forth in the Basic Lease Information shall be the
monthly amount specified therein. Within 90 days after the
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close of each calendar year, or as soon after such 90-day period as
practicable, Landlord shall deliver to Tenant a statement of actual
Property Taxes and Operating Expenses for such calendar year. If on
the basis of such statement Tenant owes an amount that is less than
the estimated payments for such calendar year previously made by
Tenant, Landlord shall refund such excess to Tenant. If on the basis
of such statement Tenant owes an amount that is more than the
estimated payments for such calendar year previously made by Tenant,
Tenant shall pay the deficiency to Landlord within 30 days after
delivery of the statement. The obligations of Landlord and Tenant
under this subparagraph with respect to the reconciliation between
estimated payments and actual Property Taxes and Operating Expenses
for the last year of the term shall survive the termination of the
Lease.
5. OTHER TAXES. Tenant shall pay or reimburse Landlord for (i) any taxes upon,
measured by or reasonably attributable to the cost or value of Tenant's
equipment, furniture, fixtures, and other personal property located in the
premises or leasehold improvements made in or to the premises at Tenants
expense, (ii) any taxes, assessments, fees, or charges imposed by any public
authority or private community maintenance association upon or by reason of the
development possession, use or occupancy of the premises or the parking
facilities used by Tenant in connection with the premises, and (iii) any gross
receipts tax imposed with respect to the rental payable hereunder.
6. USE.
(a) The premises shall be used and occupied by Tenant solely for the use
set forth in the Basic Lease Information. Tenant shall, at Tenant's
expense, comply promptly with all applicable statutes, ordinances,
rules, regulations, orders, and requirements in effect during the
term regulating Tenant's activities or the use by Tenant of the
premises. Tenant shall not use or permit the use of the premises in
any manner that will tend to create waste or a nuisance, which shall
tend unreasonably to disturb other tenants of the Building, or which
shall violate the terms of any recorded restrictions affecting the
Building, nor shall Tenant place or maintain any signs on or visible
from the exterior of the premises without Landlord's written consent,
or use any corridors, sidewalks, or other areas outside of the
premises for storage or any purpose other than access to the
premises. Notwithstanding any other provision of this Lease, Tenant
shall not use, keep, or permit to be used or kept on the premises any
foul or noxious gas or substance or any hazardous or toxic material,
nor shall Tenant do or permit to be done anything in and about the
premises, either in connection with activities hereunder expressly
permitted or otherwise, which would cause a cancellation of any
policy of insurance maintained by Landlord in connection with the
premises or the Building or which would violate the terms of any
covenants, conditions, or restrictions affecting the Building or the
land on which it is located.
(b) Tenant shall not cause, or allow anyone else to cause, any hazardous,
toxic, or radioactive materials (collectively "Hazardous Materials")
to be used, generated, stored, or disposed of on or about the
premises or the Building without the prior written consent of
Landlord, which consent may be withheld in the sole discretion of
Landlord, and which consent may be revoked at any time. Tenant shall
strictly comply with all statutes, laws, ordinances, rules,
regulations, and precautions now or hereafter mandated or advised by
any federal, state, local or other governmental agency with respect
to the use, generation, storage, or disposal of Hazardous Materials.
As herein used, Hazardous Materials shall include, but not be limited
to, those materials identified in Sections 66680 through 66685 of
Title 22 of the California Administrative Code, Division 4, Chapter
30, as amended from time to time, and those substances defined as
"hazardous substances," "hazardous materials," "hazardous wastes," or
other similar designations in the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, 42
U.S.C. Section 9601 et seq., the Resource Conservation and Recovery
Act, 42 U.S.C. Section 6901 et seq., the Hazardous Materials
Transportation Act, 49 U.S.C. Section 1801 et seq. and any other
governmental statutes, laws, ordinances, rules, regulations, and
precautions.
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7. UTILITIES.
(a) Tenant shall pay for all water, sewer, gas, electricity, heat,
cooling energy, telephone, refuse collection, and other utility-type
services furnished to Tenant or the premises, together with all
related installation or connection charges or deposits. Wherever it
is practical to do so such services shall be separately metered or
charged to Tenant by the provider thereof and paid for directly by
Xxxxxx. To the extent any of the foregoing services are provided by
Landlord, Tenant shall reimburse Landlord for all costs incurred by
Landlord in connection with the provision of such services based on
Landlord's reasonable estimate of the level of Tenant's use or
consumption of such services. Landlord shall bill Tenant on a monthly
or other periodic basis for such services and payment shall be made
by Tenant within 10 days after submittal of Landlord's statement.
(b) Landlord shall not be in default hereunder or be liable for any
damages directly or indirectly resulting therefrom, and there
shall not be any rent abatement, by reason of any interruption or
curtailment whatsoever in utility services.
8. MAINTENANCE, REPAIRS AND ALTERATIONS.
(a) Subject to the provisions of paragraph 10 below, and except for
damages caused by Tenant, its agents or invitees, Landlord shall keep
in good condition and repair the foundations and exterior walls and
roof of the Building and all common areas within the Building not
leased to tenants. Tenant expressly waives the benefits of any
statute now or hereafter in effect which would otherwise afford
Tenant the right to make repairs at Landlord's expense or to
terminate this Lease because of Landlord's failure to keep the
premises or the Building in good order, condition, and repair.
(b) Tenant shall, at Tenant's expense, maintain the interior portion of
the premises (including, but not limited to, all plumbing and
electrical connections, outlets and lightbulbs) and any exterior
glass or skylights in good condition and repair. If Tenant fails to
do so Landlord may, but shall not be required to, enter the premises
and put them in good condition, and Landlord's costs thereof shall
automatically become due and payable as additional rent Tenant shall
be responsible for the provision, at its own expense, of appropriate
janitorial service for the premises. Tenant shall also cause to be
maintained, at its expense and in good operating condition and
repair, all heat, ventilating, and air conditioning equipment
installed in the premises. If Landlord so elects, Tenant shall retain
the services of Landlord or a maintenance company retained by it to
perform maintenance of Tenant's heating, ventilating and air
conditioning equipment and shall reimburse Landlord for the cost
thereof upon demand. At the expiration of the term Tenant shall
deliver up possession of the premises in good condition and repair,
only ordinary wear and tear excepted.
(c) Tenant shall not, without Landlord's prior consent, make any
alterations, improvements, or additions in or about the premises. In
requesting Xxxxxxxx's consent, Tenant shall submit to Landlord
complete drawings and specifications describing such work and the
identity of the proposed contractor. As a condition to giving such
consent, Landlord may, among other things, require that Tenant remove
any such alterations, improvements or additions at the expiration of
the term, and to restore the premises to their prior condition.
Before commencing any work relating to alterations, additions, or
improvements affecting the premises, Tenant shall notify Landlord of
the expected date of commencement thereof and of the anticipated cost
thereof, and shall furnish such information as shall reasonably be
requested by Landlord substantiating Tenant's ability to pay for such
work. Landlord shall then have the right at any time and from time to
time to post and maintain on the premises such notices as Landlord
reasonably deems necessary to protect the premises and Landlord from
mechanics' liens or any other liens. In any
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event, tenant shall pay when due all claims for labor or materials
furnished to or for Tenant at or for use in the premises. Tenant
shall not permit any mechanics' liens to be levied against the
premises for any labor or materials furnished to Tenant or claimed to
have been furnished to Tenant or to Tenant's agents or contractors in
connection with work of any character performed or claimed to have
been performed on the premises by or at the direction of Tenant. All
alterations, improvements, or additions in or about the premises
performed by or on behalf of Tenant shall be done in a first-class,
workmanlike manner and in compliance with all applicable laws,
ordinances, regulations, and orders of any governmental authority
having jurisdiction therefor, as well as the requirements of insurers
of the premises and the Building. Upon Landlord's request, Tenant
shall remove any contractor, subcontractor, or material supplier from
the premises and the Building if the work or presence of such person
or entity results in labor disputes in or about the Building, or
damage to the premises or Building. Unless Landlord requires their
removal, as set forth above, all alterations, improvements, or
additions which may be made on the premises shall become the property
of Landlord and remain upon and be surrendered with the premises at
the expiration of the term; provided, however, that Tenant's
machinery, equipment, and trade mixtures, other than any which may be
affixed to the premises so that they cannot be removed without
material damage to the premises, shall remain the property of Tenant
and may be removed by Tenant.
9. INSURANCE AND INDEMNITY.
(a) Tenant shall obtain and maintain during the term of this Lease
general liability insurance on an occurrence basis with a combined
single limit for personal injury and property damage in a form and
with carriers acceptable to Landlord and an amount not less than
$1,000,000, and employer's liability and workers' compensation
insurance as required by law. Tenant's comprehensive general
liability insurance policy shall be endorsed to provide that (i) it
may not be canceled or altered in such a manner as adversely to
affect the coverage afforded thereby without 30 days' prior written
notice to Landlord, (ii) Landlord is named as additional insured,
(iii) the insurer acknowledges acceptance of the mutual waiver of
claims by Landlord and Tenant pursuant to subparagraph (b) below, and
(iv) such insurance is primary with respect to Landlord and that any
other insurance maintained by Landlord is excess and noncontributing
with such insurance. If, in the opinion of landlord's insurance
adviser, based on a substantial increase in recovered liability
claims generally, the specified amounts of coverage are no longer
adequate, such coverage shall be appropriately increased. Prior to
the commencement of the term, Tenant shall deliver to Landlord a
duplicate of such policy or a certificate thereof to Landlord for
retention by it, with endorsements, and at least 30 days prior to the
expiration of such policy or any renewal thereof, Tenant shall
deliver to Landlord a replacement or renewal binder, followed by a
duplicate policy or certificate within a reasonable time thereafter.
If Tenant fails to obtain such insurance or to furnish Landlord any
such duplicate policy or certificate as herein required, Landlord
may, at its election, without notice to Tenant and without any
obligation to do so, procure and maintain such coverage and Tenant
shall reimburse Landlord on demand as additional rent for any premium
so paid by Landlord.
(b) Landlord hereby waives all claims against Tenant, and Xxxxxx's
officers, directors, partners, employees, agents and representatives
for loss or damage to the extent that such loss or damage is insured
against under any valid and collectable insurance policy insuring
Landlord or would have been insured against but for any deductible
amount under any such policy, and Tenant waives all claims against
Landlord including Landlord's officers, directors, partners,
employees, agents, and representatives for loss or damage to the
extent such loss or damage is insured against under any valid and
collectable insurance policy insuring Tenant or required to be
maintained by Tenant under this Lease, or would have been insured
against but for any deductible amount under any such policy.
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(c) As this Lease does not involve the public interest and insurance is
available to Tenant which will protect it against such claims,
damage, injury or death, Tenant hereby waives all claims against
Landlord for damage to any property or injury to or death of any
person in, upon or about the premises or the Building arising at any
time and from any cause. Tenant shall hold Landlord harmless from and
defend Landlord against all claims (except those arising from the
solo negligence or willful misconduct of Landlord, its agents,
employees or contractors) (i) for damage to any property or injury to
or death of any person arising from the use of the premises by
Xxxxxx, or (ii) arising from the negligence or willful misconduct of
Tenant, its employees, agents, or contractors in, upon or about those
portions of the Building other than the premises, or (iii) any breach
or default by Tenant under this Lease. The foregoing indemnity
obligation of Tenant shall include reasonable attorneys' fees,
investigation costs, and all other reasonable costs and expenses
incurred by Landlord from the first notice that any claim or demand
is to be made or may be made. The provisions of this paragraph 9
shall survive the termination of this Lease with respect to any
damage, injury, or death occurring prior to such termination.
10. DAMAGE OR DESTRUCTION.
(a) If during the term the premises are totally or partially destroyed,
or any other portion of the Building is damaged in such a way that
Tenant's use of the premises is materially interfered with, from a
risk which is wholly covered by insurance the proceeds of which are
made available to Landlord, Landlord shall proceed with reasonable
diligence to repair the damage or destruction and this Lease shall
not be terminated; provided, however, that if in the opinion of
Landlord's architect the work of repair cannot be completed in 90
days Landlord may at its election terminate the Lease by notice given
to Tenant.
(b) If during the term the premises are totally or partially destroyed,
or any other portion of the Building is damaged in such a way that
Tenant's use of the premises is materially interfered with, from a
risk which is not wholly covered by insurance, Landlord may at its
election restore the premises or terminate this Lease.
(c) In case of destruction or damage which materially interferes with
Xxxxxx's use of the premises, if this Lease is not terminated as
above provided, rent shall be abated during the period required for
the work of repair based upon the degree of interference with
Xxxxxx's use of the premises. Except for abatement of rent, Tenant
shall have no claim against Landlord for any loss suffered by Tenant
due to damage or destruction of the premises or any work of repair
undertaken as herein provided. The provisions of this paragraph 10
shall supersede any provisions of Section 1932 and Section 1933(4) of
the California Civil Code (which might permit Tenant to terminate the
Lease or withhold rent) to the contrary.
11. EMINENT DOMAIN. If all or any part of the premises shall be taken as a
result of the exercise of the power of eminent domain or sold by Landlord under
threat of the exercise of such power, this Lease shall terminate as to the part
so taken as of the date of taking or sale, and, in the case of a partial taking,
either Landlord or Tenant shall have the right to terminate this Lease as to the
balance of the premises by notice to the other within 30 days after such date if
the portion of the premises taken shall be of such extent and nature as
substantially to handicap, impede or impair Xxxxxx's use of the balance of the
premises for Tenant's purposes. In the event of any taking or such sale,
Landlord shall be entitled to any and all compensation, damages, income, rent,
awards, or any interest therein whatsoever which may be paid or made in
connection therewith, and tenant shall have no claim against Landlord for the
value of any unexpired term of this Lease or otherwise. In the event of a
partial taking or sale of the premises which does not result in a termination of
this Lease, the monthly rental thereafter to be paid shall be equitably reduced
on a square footage basis.
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12. ASSIGNMENT AND SUBLETTING.
(a) Tenant shall not assign this Lease or any interest herein or sublet
the premises or any part thereof without the prior consent of
Landlord, which consent shall not be unreasonably withheld; Tenant
shall not hypothecate this Lease or any interest herein or permit the
use of the premises by any party other than Tenant without the prior
consent of Landlord, which consent may be withheld by Landlord in its
absolute discretion. This Lease shall not, nor shall any interest
herein, be assignable as to the interest of Tenant by operation of
law without the consent of Landlord. Any of the foregoing acts
without such consent shall be void and shall, at the option of
Landlord, terminate this Lease. In connection with each consent
requested by Xxxxxx, Xxxxxx shall submit to Landlord the terms of the
proposed transaction, the identity of the parties to the transaction,
the proposed documentation for the transaction, current financial
statements of any proposed assignee or sublessee and all other
information reasonably requested by Xxxxxxxx concerning the proposed
transaction and the parties involved therein.
(b) Without limiting the other instances in which it may be reasonable
for Landlord to withhold its consent to an assignment or subletting,
Landlord and Tenant acknowledge that it shall be reasonable for
Landlord to withhold its consent in the following instances:
(1) if the proposed assignee or sublessee is a governmental
agency;
(2) if, in Landlord's reasonable judgment, the use of the premises
by the proposed assignee or sublessee would entail any
alterations which would lessen the value of the leasehold
improvements in the premises, or would require increased
services by Landlord;
(3) if, in Landlord's reasonable judgment, the financial worth of
the proposed assignee or sublessee does not meet the credit
standards applied by Landlord for other tenants under leases
with comparable terms, or the character, reputation or
business of the proposed assignee or sublessee is not
consistent with the quality of the other tenancies in the
Building;
(4) in the case of a subletting of less than the entire premises,
if the subletting would result in the division of the premises
into more than two subparcels, would create a subparcel of a
configuration that is not suitable for normal leasing
purposes, or would require access to be provided through space
leased or held for lease to another tenant or improvements to
be made outside of the premises; or
(5) if at the time consent is requested or at any time prior to
the granting of consent, Tenant is in default under the Lease
or would be in default under the Lease but for the pendency of
any grace or cure period under paragraph 13 below.
(c) If at any time or from time to time during the term of this Lease
Tenant desires to sublet all or any part of the premises, Tenant
shall give notice to Landlord setting forth the terms of the proposed
subletting and the space so proposed to be sublet. Landlord shall
have the option, exercisable by notice given to Tenant within 20 days
after Xxxxxx's notice is given, either to sublet from Tenant such
space at the rental and other terms set forth in Tenant's notice, or,
if the proposed subletting is for the entire premises for a sublet
term ending within the last year of the term of this Lease, to
terminate this Lease. If Landlord does not exercise such option,
Tenant shall be free to sublet such space to any third party on the
same terms set forth in the notice given to Landlord, subject to
obtaining Landlord's prior consent as hereinabove provided.
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(d) As used in this paragraph 12, the term "assign" or "assignment" shall
include, without limitation, any sale, transfer, or other disposition
of all or any portion of Tenant's estate under this Lease, whether
voluntary or involuntary, and whether by operation of law or
otherwise including any of the following:
(1) If Tenant is a corporation: (i) any dissolution, merger,
consolidation, or other reorganization of Tenant or (ii) a
sale of more than 50% of the value of the assets of Tenant or
(iii) if Tenant is a corporation with fewer than 500
shareholders, sale or other transfer of a controlling
percentage of the capital stock of Tenant. The phrase
"controlling percentage" means the ownership of, and the right
to vote, stocks possessing at least 50% of the total combined
voting power of all classes of Tenant's stock issues,
outstanding and permitted to vote for the election of
directors;
(2) If Tenant is a trust the transfer of more than 50% of the
beneficial interest of Xxxxxx, or the dissolution of the
trust;
(3) If Tenant is a partnership or joint venture, the withdrawal,
or the transfer of the interest of any general partner or
joint venturer or the dissolution of the partnership or joint
venture;
(4) If Tenant is composed of tenants-in-common, the transfer of
interest of any co-tenants or the partition or dissolution of
the co-tenancy.
(e) No sublessee (other than Landlord if it exercises its option pursuant
to subparagraph(c) above) shall have a right further to sublet, and
any assignment by a sublessee of its sublease shall be subject to
Landlord's prior consent in the same manner as if Tenant were
entering into a new sublease.
(f) In the case of an assignment, all sums or other economic
consideration received by Xxxxxx as a result of such assignment shall
be paid to Landlord after first deducting the unamortized cost of
leasehold improvements paid for by Tenant, and the cost of any real
estate commissions incurred in connection with such assignment in the
event such consideration is received by Tenant in installments, the
portion of each installment to be paid to Landlord shall be
determined by multiplying the installment by a fraction, the
numerator of which is the total amount of the foregoing permitted
deductions and the denominator of which is the total consideration
receivable by Tenant as a result of such assignment.
(g) In the case of a subletting, all sums or economic consideration
received by Tenant as a result of such subletting shall be paid to
Landlord after first deducting (i) the rental due hereunder, prorated
to reflect only rental allocable to the sublet portion of the
premises, (ii) the cost of leasehold improvements made to the sublet
portion of the premises at Tenant's cost, amortized over the term of
this Lease except for leasehold improvements made for the specific
benefit of the sublessee, which shall be amortized over the term of
the sublease, and (iii) the cost of any real estate commissions
incurred in connection with such subletting, amortized over the term
of the sublease.
(h) Regardless of Xxxxxxxx's consent, no subletting or assignment shall
release Tenant of Tenant's obligation or alter the primary liability
of Tenant to pay the rental and to perform all other obligations to
be performed by Tenant hereunder. The acceptance of rental by
Landlord from any other person shall not be deemed to be a waiver by
Landlord of any provision hereof. Consent to one assignment or
subletting shall not be deemed consent to any subsequent assignment
or subletting. In the event of default by any assignee of Tenant or
any successor of Xxxxxx in the performance of any of the terms
hereof, Landlord may proceed directly against Tenant without the
necessity of exhausting remedies against such assignee or successor.
Landlord may consent to subsequent assignments or subletting of this
Lease or amendments or modifications to this Lease with assignees of
Tenant, without notifying
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Tenant, or any successor of Tenant, and without obtaining its or
their consent thereto and such action shall not relieve Tenant of
liability under this Lease.
(i) In the event Tenant shall assign or sublet the premises or request
the consent of Landlord to any assignment or subletting or if Tenant
shall request the consent of Landlord for any act that Tenant
proposes to do, then Tenant shall pay Landlord's reasonable
attorneys' fees incurred in connection therewith.
13. DEFAULT BY TENANT.
(a) The following events shall constitute events of default under this
Lease:
(1) a default by Xxxxxx in the payment of any rent or other sum
payable hereunder for a period of 10 days after the same is
due, provided that if Tenant has failed one or more times in
any twelve-month period to pay any rent or other sum within 10
days after the due date, no grace period shall thereafter be
applicable hereunder;
(2) a default by Tenant in the performance of any of the other
terms, covenants, agreements, or conditions contained herein
and, if the default is curable, the continuation of such
default for a period of 10 days after notice by Landlord or
beyond the time reasonably necessary for cure if the default
is of the nature to require more than 10 days to remedy,
provided that if Tenant has defaulted in the performance of
the some obligation one or more times in any twelve-month
period and notice of such default has been given by Landlord
in each instance, no cure period shall thereafter be
applicable hereunder:
(3) the bankruptcy or insolvency of Tenant, any transfer by Xxxxxx
in fraud of creditors, assignment by Tenant for the benefit of
creditors, or the commencement of any proceedings of any kind
by or against Tenant under any provision of the Federal
Bankruptcy Act or under any other insolvency, bankruptcy or
reorganization act unless, in the event any such proceedings
are involuntary, Tenant is discharged from the same within 60
days thereafter; the appointment of a receiver for a
substantial part of the assets of Tenant; or the levy upon
this Lease or any estate of Tenant hereunder by any attachment
or execution; or
(4) the abandonment of the premises.
(b) Upon the occurrence of any event of default by Tenant hereunder,
Landlord may, at its option and without any further notice or demand,
in addition to any other rights and remedies given hereunder or by
law, do any of the following:
(1) Landlord shall have the right, so long as such default
continues, to give notice of termination to Tenant, and on the
date specified in such notice this Lease shall terminate.
(2) In the event of any such termination of this Lease, Landlord
may then or at any time thereafter, re-enter the premises and
remove therefrom all persons and property and again repossess
and enjoy the premises, without prejudice to any other
remedies that Landlord may have by reason of Tenant's default
or of such termination.
(3) In the event of any such termination of this Lease, and in
addition to any other rights and remedies Landlord may have,
Landlord shall have all of the rights and remedies of a
landlord
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provided by Section 1951.2 of the California Civil Code. The
amount of damages which Landlord may recover in event of such
termination shall include, without limitation, (i) the worth
at the time of award (computed by discounting such amount at
the discount rate of the Federal Reserve Bank of San Francisco
at the time of award plus one percent) of the amount by which
the unpaid rent for balance of the term after the time of
award exceeds the amount of rental loss that Tenant proves
could be reasonably avoided, (ii) all legal expenses and other
related costs incurred by Landlord following Tenant's default,
(iii) all costs incurred by Landlord in restoring the premises
to good order and condition, or in remodeling, renovating or
otherwise preparing the premises for reletting, and (iv) all
costs (including, without limitation, any brokerage
commissions) incurred by Landlord in reletting the premises.
(4) For the purpose of determining the unpaid rent in the event of
a termination of this Lease, or the rent due hereunder in the
event of a reletting of the premises, the monthly rent
reserved in this Lease shall be deemed to be the sum of the
rental due under paragraph 3 above and the amounts last
payable by Tenant pursuant to paragraph 4 above.
(5) After terminating this Lease, Landlord may remove any and
all personal property located in the premises and place such
property in a public or private warehouse or elsewhere at the
sole cost and expense of Tenant.
(c) Even though Xxxxxx has breached this Lease and abandoned the
premises, this Lease shall continue in effect for so long as Landlord
does not terminate Tenant's right to possession, and Landlord may
enforce all its rights and remedies under this Lease, including the
right to recover rental as it becomes due under this Lease. Acts of
maintenance or preservation, efforts to relet the premises, or the
appointment of a receiver upon initiative of Landlord to protect
Xxxxxxxx's interest under this Lease, shall not constitute a
termination of Tenant's right to possession.
(d) The remedies provided for in this Lease are in addition to any other
remedies available to Landlord at law or in equity, by statute or
otherwise.
14. DEFAULT BY LANDLORD. Landlord shall not be in default unless Landlord fails
to perform obligations required of Landlord hereunder within a reasonable time,
but in no event later than 30 days after notice by Tenant to Landlord specifying
wherein Landlord has failed to perform such obligation; provided, however, that
if the nature of Landord's obligation is such that more than 30 days are
required for performance, then Landlord shall not be in default if Landlord
commences performance within such 30 day period and thereafter diligently
prosecutes the same to completion.
15. SECURITY DEPOSIT. On execution of this Lease Tenant shall deposit with
Landlord the sum specified in the Basic Lease Information (the "deposit"). The
deposit shall be held by Landlord as security for the performance by Tenant of
all of the provisions of this Lease. If Tenant fails to pay rent or other
charges due hereunder, or otherwise defaults with respect to any provision of
this Lease, Landlord may use, apply, or retain all or any portion of the deposit
for the payment of any rent or other charge in default, or the payment of any
other sum to which Landlord may become obligated by reason of Tenant's default,
or to compensate Landlord for any loss or damage which Landlord may suffer
thereby. If Landlord so uses or applies all or any portion of the deposit, then
within 10 days after demand therefor Tenant shall deposit cash with Landlord in
an amount sufficient to restore the deposit to the full amount thereof, and
Tenant's failure to do so shall be a material breach of this Lease. Landlord
shall not be required to keep the deposit separate from its general accounts. If
Xxxxxx performs all of Tenant's obligations hereunder, the deposit, or so much
thereof as has not theretofore been applied by Landlord, shall be returned,
without payment of interest for its use, to Tenant (or, at Xxxxxxxx's option, to
the last assignee, if any, of Xxxxxx's interest hereunder) at the expiration of
the
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term hereof, and after Tenant has vacated the premises. No trust relationship is
created herein between Landlord and Tenant with respect to the deposit.
16. ESTOPPEL CERTIFICATE.
(a) Tenant shall at any time upon not more than 10 days' prior notice
from Landlord execute, acknowledge and deliver to Landlord a
statement certifying (i) that this Lease is unmodified and in full
force and effect (or, if modified, stating the nature of such
modification and certifying that this Lease, as so modified, is in
full force and effect) (ii) the date to which the rent, security
deposit, and other sums payable hereunder have been paid, (iii)
acknowledging that there are not, to Xxxxxx's knowledge, any uncured
defaults on the part of Landlord hereunder, or specifying such
defaults, if any, which are claimed, and (iv) such other matters as
may reasonably be requested by Landlord. Any such statement may be
conclusively relied upon by any prospective purchaser or encumbrancer
of the Building.
(b) Tenant's failure to deliver such statement within such time shall
be conclusive upon Tenant, (i) that this Lease is in full force
and effect, without modification except as may be represented by
Landlord, (ii) that there are no uncured defaults in Landlord's
performance, and (iii) that not more than one month's rent has
been paid in advance.
(c) If Landlord desires to finance or refinance the Building, Xxxxxx
agrees to deliver to any lender designated by Landlord such
financial statements of Tenant as may be reasonably required by
such lender. All such financial statements shall be received by
Landlord in confidence and shall be used only for the purposes
herein set forth.
17. SUBORDINATION. This Lease, at Landlord's option, shall subordinate to any
ground lease, mortgage, deed of trust, or any other hypothecation for security
now or hereafter placed upon the Building and to any and all advances made on
the security thereof and to all renewals, modifications, consolidations,
replacements and extensions thereof. Notwithstanding such subordination,
Xxxxxx's right to quiet possession of the premises shall not be disturbed if
Tenant is not in default and so long as Tenant shall pay the rent and observe
and perform all of the provisions of this Lease, unless this Lease is otherwise
terminated pursuant to its terms. If any mortgagee, trustee, or ground lessor
shall elect to have this Lease prior to the lien of its mortgage, deed of trust
or ground lease, and shall give notice thereof to Tenant, this Lease shall be
deemed prior to such mortgage, deed of trust, or ground lease, whether this
Lease is dated prior to or subsequent to the date of said mortgage, deed of
trust or ground lease or the date of recording thereof. If any mortgage or deed
of trust to which this Lease is subordinate is foreclosed or a deed in lieu of
foreclosure is given to the mortgagee or beneficiary. Tenant shall attorn to the
purchaser at the foreclosure sale or to the grantee under the deed in lieu of
foreclosure; if any ground lease to which this Lease is subordinate is
terminated. Tenant shall attorn to the ground lessor. Xxxxxx agrees to execute
any documents required to effectuate such subordination or to make this Lease
prior to the lien of any mortgage, deed of trust or ground lease, as the case
may be, or to evidence such attornment.
18. ATTORNEYS' FEES. If as a result of any breach or default in the performance
of any of the provisions of this Lease, Landlord uses the services of an
attorney in order to secure compliance with such provisions or recover damages
therefor, or to terminate this Lease or evict Tenant, Tenant shall reimburse
Landlord upon demand for any and all attorneys' fees and expenses so incurred by
Landlord, provided that if Tenant shall be the prevailing party in any legal
action brought by Landlord against Tenant, Tenant shall be entitled to recover
for the fees of its attorneys in such amount as the court may adjudge
reasonable.
19. NOTICES. All notices, consents, demands, and other communications from one
party to the other given pursuant to the terms of this Lease shall be in writing
and shall be deemed to have been fully given when deposited in the United States
mail, certified or registered, postage prepaid, and addressed as follows: to
Tenant at the address specified in the
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Basic Lease Information or to such other place as Tenant may from time to time
designate in a notice to Landlord; to Landlord at the address specified in the
Basic Lease Information, or to such other place and with such other copies as
Landlord may from time to time designate in a notice to Tenant; or, in the case
of Tenant, delivered to Tenant at the premises.
20. GENERAL PROVISIONS.
(a) This Lease shall be governed by and construed in accordance with
the laws of the state of California.
(b) The invalidity of any provision of this Lease, as determined by a
court of competent jurisdiction, shall in no way affect the
validity of any other provision hereof.
(c) This Lease contains all agreements of the parties with respect to
any matter mentioned herein and only may be modified in a writing
executed by the parties.
(d) No waiver by Landlord of any provision hereof shall be deemed a
waiver of any other provision or of any subsequent breach by Tenant
of the same or any other provision. Xxxxxxxx's consent to or approval
of any act shall not be deemed to render unnecessary the obtaining of
Landlord's consent to or approval of any subsequent act by Xxxxxx.
The acceptance of rent hereunder by Landlord shall not be a waiver of
any preceding breach by Tenant of any provision hereof, other than
the failure of Tenant to pay the particular rent accepted, regardless
of Landlord's knowledge of such preceding breach at the time of
acceptance of such rent.
(e) If Tenant remains in possession of the premises or any part thereof
after the expiration of the term with the consent of Landlord, such
occupancy shall be a tenancy from month to month at a rental in the
amount of twice the last month's rental during the term plus all
other charges payable hereunder, and upon all of the terms hereof.
(f) Subject to the provisions of this Lease restricting assignment or
subletting by Xxxxxx, this Lease shall bind the parties, their
personal representatives, successors, and assigns.
(g) Landlord and Xxxxxxxx's agents shall have the right to enter the
premises at reasonable times for the purpose of inspecting the same,
showing the same to prospective purchasers or lenders, and making
such alterations, repairs, improvements, or additions to the premises
or to the Building as Landlord may deem necessary or desirable.
Landlord may at any time during the last 120 days of the term place
on or about the premises any ordinary "For Lease" sign.
(h) The voluntary or other surrender of this Lease by Xxxxxx, the mutual
cancellation thereof or the termination of this Lease by Landlord as
a result of Tenant's default shall, at the option of Landlord,
terminate all or any existing subtenancies or may, at the option of
Landlord, operate as an assignment to Landlord of any or all of such
subtenancies.
(i) If Tenant is a corporation, each individual executing this Lease on
behalf of Tenant represents and warrants that he is duly authorized
to execute and deliver this Lease on behalf of the corporation in
accordance with a duly adopted resolution of the Board of Directors
and that this Lease is binding upon the corporation in accordance
with its terms.
(j) The term "Landlord" as used herein means the then owner of the
Building and in the event of a sale of the Building the selling owner
shall be automatically relieved of all obligations of Landlord
hereunder, except for acts or omissions of Landlord theretofore
occurring.
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(k) Tenant covenants for itself, its heirs, executors, administrators.
and assigns, and all persons claiming under or through it, and this
Lease is made and accepted upon it subject to the condition that
there shall be no discrimination against or segregation of any person
or group of persons, on account of race, color, creed, religion, sex,
marital status, national origin, or ancestry in the leasing,
subleasing, transferring, use, occupancy, tenure, or enjoyment of the
premises herein leased nor shall the Tenant itself, or any person
claiming under or through it, establish or permit any such practice
or practices of discrimination or segregation with reference to the
selection, location, number, use, or occupancy of tenants,
subtenants, or vendees in the premises.
(l) The term "day" as used herein means a calendar day.
(m) The obligations of Landlord under this Lease do not constitute
personal obligations of the partners, directors, officers,
shareholders, or trustees of Landlord, and Tenant shall look solely
to the Building and to no other assets of the Landlord or any of its
trustees, partners, officers, directors, employees, or consultants
for satisfaction of any liability in respect of this Lease and Tenant
will not seek recourse against the individual partners, directors,
officers, shareholders, or trustees of Landlord or any of their
personal assets for such satisfaction.
(n) Within 10 days of Xxxxxxxx's request therefor, Tenant shall execute
and deliver such amendments of this Lease as shall have been required
by Xxxxxxxx's lender in connection with the making of a loan to be
secured by the premises or the Building, provided such amendment does
not increase the obligations of Tenant under this Lease or materially
adversely affect Tenant's leasehold interest. Such amendment shall
include, without limitation, one requiring Tenant to provide any such
lender with notices hereunder or a copy of notices sent to Landlord
hereunder, or granting any such lender reasonable opportunities to
cure any default by Landlord under this Lease.
21. EXHIBITS. The exhibits and addendum, if any, specified in the Basic Lease
Information are attached to this Lease and by this reference made a part hereof.
IN WITNESS WHEREOF, the parties have executed this Lease on the
respective dates indicated below.
TENANT LANDLORD
Penederm, Inc. WCB SIXTEEN LIMITED PARTNERSHIP,
a California corporation a Delaware limited partnership
By: WCB SIXTEEN, INC.
a Delaware corporation
General Partner
By: /s/ Xxxxxxx X. Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxxx
------------------------------ -------------------------------
Its: Vice President, Operations Its: Vice President
By: ___________________________
Its: __________________________
Date of Execution Date of Execution
by Tenant: 6/18/97 by Landlord: 6/19/97
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