EXHIBIT 10.22
SUBLEASE
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THIS SUBLEASE made as of this 24th day of June, 1998 between Bio-Medical
Applications of California, Inc., d/b/a Bio-Medical Applications of Los Angeles,
a Delaware corporation, hereinafter called "Sublandlord", and Bio Marin
Pharmaceutical, Inc., a California corporation, hereinafter called "Subtenant".
WHEREAS, by a lease dated July 20, 1992 by and between Sublandlord as lessee and
Commercial Building Company, A Partnership, hereinafter called "Landlord", said
lease referred to hereinafter as the "Main Lease", a copy of which is attached
hereto as Exhibit A with the rental amounts deleted, Landlord leased to
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Sublandlord approximately 8,000 square feet of space in the building located at
0000 Xxxx Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000 (the "Main Premises") upon
the terms, covenants and conditions therein contained; and
WHEREAS, Sublandlord has agreed to sublease to Subtenant the entire Main
Premises, hereinafter referred to as the "Subleased Premises", on the terms
stated herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereto agree as follows.
1. Sublandlord hereby leases to Subtenant, and Subtenant hereby takes and
leases from Sublandlord, the Subleased Premises; TO HAVE AND TO HOLD the
Subleased Premises for a term which commences on July 1, 1998 (the "Commencement
Date") and ends on June 30, 2001 (the "Expiration Date").
2. The Subleased Premises shall be delivered to Subtenant in their "as is"
condition on the Commencement Date. Subtenant shall have the same rights to make
initial improvements to the Subleased Premises as set forth in Section 9 of the
Main Lease, except that Sublandlord shall have the same rights to review and
approve such work as the rights granted to Landlord under Section 9 of the Main
Lease, and that such fights of the Sublandlord shall be in addition to the
rights of the Landlord under Section 9 of the Main Lease.
3.1 Subtenant hereby expressly agrees and covenants to Landlord and to
Sublandlord, that Subtenant assumes, is bound by and shall faithfully perform,
all of the obligations of Sublandlord as tenant under the Main Lease with
respect to the Subleased Premises, except as otherwise expressly provided for
herein. It is further agreed that the relationship between, and the rights of,
Subtenant and Sublandlord shall, except as expressly provided for herein, be
governed by the Main Lease as if they were tenant and landlord, respectively,
under the Main Lease, and that Sublandlord specifically shall have all rights
granted to Landlord under the Main Lease with respect to enforcement of the
provisions of this Sublease and the termination hereof; provided, however, that
Sublandlord shall not be deemed to guarantee performance by Landlord of its
obligations under the Main Lease, and Sublandlord shall have no liability to
Subtenant for any default in this Sublease caused by the default or any other
act of Landlord under the Main Lease. It is further agreed that performance by
Sublandlord shall be
conditional upon the performance by Landlord of its obligations under the Main
Lease. Sublandlord shall be entitled to exercise any of the remedies set forth
in the Main Lease upon the occurrence of any of the defaults set forth therein.
3.2 The following provisions of the Main Lease are excluded from the terms
hereof, and Subtenant shall have no fights thereunder: Section 11 (Assignment)
except as permitted as described in Section 8, below.
3.3 The following references to numbers of days in the Main Lease are changed
as follows with respect to the relationship between Sublandlord and Subtenant:
Section 5 (Condition of Premises, Repairs and Maintenance): the ten (10) day
notice provision in the final subparagraph shall be changed in this Sublease to
five (5) days; Section 7(c)(Damage by Fire or Other Casualty): the thirty (30)
days notice shall be changed to twenty (20) days; and Section 15 (Default by
Tenant): the time periods provided to Tenant under the Main Lease to cure
defaults after receipt of notice from Landlord shall be reduced to five (5) days
for monetary defaults and twenty (20) days for non-monetary defaults.
3.4 Subtenant's parking fights shall be comprised of Sublandlord's allocable
share of vehicular parking spaces in the Parking Lot and the Parking Garage, if
any, as set forth in the Main Lease. Subtenant shall not be entitled to any
credit against the Rent due under this Sublease notwithstanding any provision of
the Main Lease.
4. Subtenant covenants and agrees with Sublandlord to pay to Sublandlord as
rent during the term hereof as follows:
4.1 Base Rent shall be paid in advance on the first day of each month of the
term of this Sublease at the monthly rate of: Six Thousand and 00/100 Dollars
($6,000.00) per month.
4.2 All costs for (i) electrical power and utilities allocable to the Subleased
Premises, (iv) cleaning and janitorial expenses allocable to the Subleased
Premises and (iii) associated with increases in insurance expense allocable to
the Subleased Premises shall be paid by Subtenant directly to Sublandlord for
the term of this Sublease. All payments under this Paragraph 4 shall be made by
Subtenant without any setoff or deduction whatsoever, in lawful money of the
United States. Such payments shall be paid to Sublandlord at Sublandlord's
office hereinabove set forth or at such other place or to such other party or
parties as Sublandlord may from time to time designate by notice to Subtenant.
Subtenant shall pay Sublandlord interest at the default rate set forth in the
Main Lease on any payments required by this Paragraph 4 which are not made by
Subtenant when due.
5. Subtenant covenants and agrees to use the Subleased Premises for the use
described in Section 11 of Addendum No. 1 to this Sublease and for no other
purpose.
6. Sublandlord warrants and represents that it has no knowledge of any default
by itself or by landlord under the Main Lease; that the Main Lease is in full
force and effect and that Sublandlord has a good right to sublease its interest
in the same provided Sublandlord obtains
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the consent of Landlord in accordance with Section 11 of the Main Lease and
obtains the consent of any of Landlord's lender or lenders who may have approval
rights in connection with this Sublease; and that Sublandlord has done nothing
to defeat or impair this Sublease. Sublandlord further warrants and covenants
that Subtenant, upon performance of Subtenant obligations hereunder and subject
to the provisions hereof, shall for the term hereof, succeed to all rights of
Sublandlord under the Main Lease with respect to the Subleased Premises and will
have quiet possession of the Subleased Premises unless the Main Lease be
terminated for any reason; provided, however, that this Sublease shall be in all
respects subject to the Main Lease and if the Main Lease shall terminate during
the term hereof for any reason, this Sublease shall terminate upon such
termination with the same force and effect as if such termination date had been
named herein as the termination date hereof; and if any provisions of this
Sublease shall be in violation of the provisions of the Main Lease, the
provisions of the Main Lease shall be deemed to limit the provisions hereof. It
is expressly understood and agreed, however, that nothing stated in this
Paragraph 6 shall be deemed to confer upon Subtenant any greater rights than are
set forth herein nor limit any of the Subtenant's obligations hereunder.
7. Subtenant agrees to do nothing which will subject the Main Lease to
termination by Landlord under the provisions of the Main Lease, and it is
further agreed that if Subtenant is in default of the provisions of the Main
Lease, Sublandlord may, after five (5) days written notice to Subtenant or
immediately in the event of an emergency, but need not cure said default
specifically on behalf of and for the account of Subtenant, in which case all
costs, damages, and expenses incurred by Sublandlord in connection therewith
shall be paid to Sublandlord immediately upon its demand as additional rent
hereunder. By curing Subtenant's default on its behalf and account, as
aforesaid, Sublandlord shall not be deemed to have waived any of its rights nor
to have released Subtenant from any of its obligations under this Sublease. It
is agreed, however, that Sublandlord may cure said default on its own account to
preserve its interest in the Main Lease, and may terminate this Sublease
pursuant to the terms hereof by reason of said default by Subtenant, if
Subtenant does not pay as additional rent to Sublandlord all costs, damages and
expenses incurred by Sublandlord in connection with such cure within the
applicable grace period provided for in the Main Lease, as mended by Paragraph 3
above. In the event of such termination, Sublandlord shall be entitled to all
remedies and damages provided for Landlord in the Main Lease, or as otherwise
provided by law. In the event that the Main Lease is terminated by Landlord by
reason of Subtenant's default, Subtenant shall indemnify and hold Sublandlord
harmless from such damages as Sublandlord may become liable to pay under the
Main Lease resulting from such default, plus all other expenses and costs
related thereto, including without limitation attorneys' fees.
8. Subtenant shall not have the right to sublet the Subleased Premises, or any
portion thereof, nor to assign or in any way transfer its interest in the same,
nor to suffer or permit others to occupy the same, nor to suffer or permit the
same to be assigned or transferred by operation of law or otherwise without the
express written consent of Sublandlord and Landlord in their sole and absolute
discretion. Notwithstanding anything to the contrary contained herein or in the
Main Lease, Subtenant agrees that it shall remain primarily liable under this
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Sublease regardless of any assignment of this Sublease by Subtenant, any
subletting of the Subleased Premises by Subtenant or any transfer by Subtenant
of its interest hereunder.
9. Subtenant shall maintain with respect to the Subleased Premises the
insurance required by the Main Lease to be taken our by the tenant thereunder,
which insurance shall name Landlord and Sublandlord as additional insured, all
in accordance with said sections of the Main Lease.
10. At the expiration or earlier termination of this Lease, Subtenant shall
surrender and yield up the Subleased Premises in the condition required under
Section 9 of the Main Lease, and shall remove all equipment and trade fixtures
of Subtenant therefrom, if Subtenant shall remain in possession of the Subleased
Premises after the expiration or earlier termination of this Sublease without
any express agreement as to such holding over, Subtenant shall be liable to
Sublandlord in accordance with the Main Lease.
11. Subtenant further agrees to indemnify and hold Sublandlord harmless from
any claim of Landlord under the Main Lease, and against any claim for injury to
persons, including death, and for property damages arising out of the occupancy
and use of the Subleased Premises by Subtenant, its officers, agents, employees
or invitees. Sublandlord agrees to indemnify and hold Subtenant harmless from
any claim for injury to persons, including death, and for property damages
arising out of the negligence or intentional misconduct of Sublandlord and
Landlord agrees to indemnify and hold Subtenant harmless from any claim for
injury to persons, including death, and for property damages arising out of the
negligence or intentional misconduct of Landlord.
12. Subtenant shall deposit with Sublandlord upon Subtenant's execution hereof
a security deposit in an amount equal to one month's Base Rent hereunder (the
"Security Deposit") as security for Subtenant's faithful performance of
Subtenants obligations under this Sublease. If Subtenant fails to pay Base Rent
or other rent or charges due hereunder, or otherwise defaults under this
Sublease, Sublandlord may use, apply or retain all or any portion of said
Security Deposit for the payment of any amount due Sublandlord or to reimburse
or compensate Sublandlord for any liability, cost, expense, loss or damage
(including attorneys' fees) which Sublandlord may suffer or incur by reason
thereof. If Sublandlord uses or applies all or any portion of said Security
Deposit, Subtenant shall within ten (10) days after written request therefore
deposit monies with Sublandlord sufficient to restore said Security Deposit to
the full mount required by this Sublease. Sublandlord shall not be required to
keep all or any part of the Security Deposit separate from its general accounts.
Sublandlord shall, at the expiration or earlier termination for the term hereof
and after Subtenant has vacated the Premises, return to Subtenant (or, at
Sublandlord's option, to the last assignee, if any, of Subtenant's interest
herem), that portion of the Security Deposit not used or applied by Sublandlord.
Unless otherwise expressly agreed in writing by Sublandlord, no part of the
Security Deposit shall be considered to be held in trust, to bear interest or
other increment for its use, or to be prepayment for any monies to be paid by
Subtenant under this Sublease.
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13. All notices required to be given under this Sublease shall be sent by
prepaid registered or certified mail, return receipt requested, to Sublandlord,
at Fresenius Dialysis Services West, 0000 Xxxxxx Xxxxxx, Xxx Xxxxx, Xxxxxxxxxx
00000, Attention: Xxxx X. Xxxx, with a copy to Fresenius Medical Care North
America, Two Ledgemont Center, 95 Hayden Argue, Xxxxxxxxx, Xxxxxxxxxxxxx 00000,
Attention: Corporate Legal Department, and to Subtenant, at the Subleased
Premises, unless in either case a different address is specified by either party
to the other in writing by prepaid registered or certified mail, return receipt
requested. Any such notices shall be deemed to have been given when deposited
with the U.S. Mail.
14. Sublandlord hereby reserves the fight to enter onto the Subleased Premises
from time to rime after reasonable prior notice to Subtenant to ascertain
whether Subtenant is in compliance with the provisions of this Sublease.
15. If any provision of this Sublease, or the particular application thereof,
shall to any extent be held invalid or unenforceable by a court of competent
jurisdiction, the invalidity of such provision shall not be deemed to affect the
validity of any other provision of this Sublease. Such invalid provisions shall
be deemed to be stricken from this Sublease, which shall otherwise continue in
full force and effect in all respects.
16. This Sublease shall be binding upon and inure to the benefit of the parties
hereto and their respective permitted successors, assigns, heirs and legal
representatives.
17. This Sublease shall be governed by and construed in accordance with the
laws of the state of California.
18. Sublandlord and Subtenant each warrant to the other that it has had no
dealings with any broker or agent in connection with this Sublease except for
Xxx & Associates, South Bay who shall be paid by Sublandlord pursuant to
Addendum No. 1 attached hereto. Sublandlord and Subtenant covenant to hold
harmless and indemnify the other party from and against any and all costs
(including, without limitation, attorney's fees for defense of an action),
expenses or 1iability for any compensation, commissions and charges which result
from the breach of this warranty.
19. Addendum No. 1 to this Sublease is attached hereto and incorporated herein
as Exhibit C.
20. Notwithstanding anything to the contrary contained herein, this Sublease
shall not become or be deemed to have become effective until mutually executed
and delivered by Subtenant and Sublandlord and consented to by Landlord in
writing.
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EXECUTED under seal as of the day and year first above written.
SUBLANDLORD: BIO-MEDICAL APPLICATIONS OF CALIFORNIA, INC.
By: _______________________________________________
Its: _______________________________________________
hereunto duly authorized
SUBTENANT: BIO MARIN PHARMACEUTICAL, INC.
By: Xxxx X. Xxxxx
Its: President
hereunto duly authorized
LANDLORD: COMMERCIAL BUILDING COMPANY, A PARTNERSHIP
By: ________________________________________________
Its: ________________________________________________
hereunto duly authorized
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EXHIBIT A
Copy of Main Lease.
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EXHIBIT B
Legal Description of the property on which the Subleased Premises is located.
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EXHIBIT C
Addendum No. 1 to Sublease.
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ADDENDUM NO.1
This Addendum No. 1 to the Sublease (The "Addendum") is dated as of June
9/th/, 1998, and is entered into by and between Bio Medical Applications of Los
Angeles, Inc. "Sublandlord" and Bio Marin Pharmaceutical, Inc., "Subtenant."
RECITALS
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A. Sublandlord and Subtenant entered into that certain Sublease, dated June 8,
1998, as amended by that certain Addendum No. 1 of Sublease, dated June 9,
1998 (collectively, the "Sublease"), for the Premises located at 0000 X.
Xxxxxx Xxxxxx, Xxxxxxxx Xxxxxxxxxx ("The Building").
In consideration of the foregoing recitals, the mutual covenants contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Sublandlord and Subtenant
hereby agree as follows:
AGREEMENT
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1. DEFINITIONS
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All capitalized terms used in the Addendum No.1 which are not defined
herein shall have the same meanings as set forth in the Sublease. Unless
expressly stated otherwise herein, the term "Sublease" shall mean the
Sublease as amended hereby.
2. GOVERNING LAW
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This Addendum No. 1 shall be construed in accordance with and governed by
the Laws of the State of California.
3. ENTIRE AGREEMENT
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The Sublease and this Addendum No. 1 constitutes the entire agreement of
Sublandlord and Subtenant with respect to the specific subject matter
hereof.
4. OPTION TO EXTEND
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Provided Subtenant is not in default under the terms and conditions of the
Sublease. Sublandlord hereby grants to Subtenant the option to extend the
term of this Sublease for the balance of the original Lease or for one (1)
additional two (2) year period(s) whichever is less, commencing upon the
expiration of the prior term, upon each and all of the following terms and
conditions:
A. Subtenant gives to Sublandlord and Sublandlord actually receives on a
date which is prior to the date that the Option Period would commence
(if exercised) by at least four (4) months and not more than six (6)
months a written notice of the exercise of the Option to Extend this
Sublease for said additional term, time being of the essence. The
rental rate for the Option Period shall be six thousand ($6,000/mo.)
per month.
5. TENANT IMPROVEMENTS
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Subtenant shall occupy the Premises in its present condition, ("As Is"),
and Sublandlord shall deliver the heating, ventilation, air conditioning,
and plumbing in good working condition. Subtenant at Subtenant's sole
expense shall have the fight to modify the interior of the building (non-
structural) per Subtenant's specification, and plans approved by the city,
provided that Subtenant shall submit all Subtenant's Tenant Improvement
plans, and working drawings to Sublandlord for Sublandlord's prior'
approval (and which shall be subject to Landlord's' review and approval).
Such approvals shall not be unreasonably withheld. Sublandlord shall
contribute Twenty Thousand and 00/100 Dollars ($20,000.00) to Subtenants
Tenant Improvements. Said amount shall be paid to Subtenant upon completion
of the Tenant Improvements and receipt of all documentation demonstrating
that Subtenant has spent the referenced mount or more in the premises along
with a copy of release of all waivers from contractors and subcontractors.
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ADDENDUM NO. 1 (continued)
6. FIRST (1/st/) MONTH'S RENT AND SECURITY DEPOSIT
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Subtenant shall pay Sublandlord a first month's rent of $6,000.00 along
with $6,000.00 as a Security Deposit upon execution of the Lease by
Subtenant. Said rent shall applied to the first month's rent of the
Sublease term (July 1998).
7. EARLY POSSESSION
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Subtenant shall be permitted to occupy the Premises upon full execution of
the Sublease by Sublandlord and Subtenant and the Landlord. If Subtenant
occupies the Premises prior to the commencement date (such Commencement
Date being July 1, 1998) referenced in the Sublease, such occupancy shall
be subject to all provisions of this Sublease. Such occupancy shall not
change the termination date, but Subtenant shall not pay any Rent for the
period prior to July 1, 1998.
8. COMMENCEMENT DATE
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This Sublease Agreement shall commence on July 1, 1998 and rent shall
commence on July 1, 1998.
9. UTILITIES AND JANITORIAL SERVICES
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Subtenant shall pay and be responsible for all utilities and janitorial
services for the premises during the term of Sublease and Option thereof.
10. HEALTH CODE AND MATERIALS
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The building shall be in compliance with all governmental and city codes as
of the commencement date of this Sublease.
11. USE
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Subtenant shall use the Premises for development of Enzyme for treatment
and other related medical use.
12. BROKER'S COMMISSION
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Sublandlord and Subtenant hereby being disclosed by Xxx & Associates~South
Bay that Xxx & Associates-South Bay is acting in this Sublease transaction
as the agent of both Sublandlord and Subtenant. Sublandlord and Subtenant
each consent to such representation by Xxx & Associates-South Bay.
Sublandlord shall pay Xxx & Associates-South Bay a broker's commission of
six percent (6%) of the total base rent pursuant to this Sublease upon
execution of the Sublease Agreement by Sublandlord, Subtenant and Landlord.
In addition, should Subtenant exercise its option to renew the Sublease
Agreement, then Sublandlord shall pay a broker's commission to Xxx &
Associates-South Bay of two and one half percent (2 1/2%) of total base
rent of the renewal term when Subtenant renews the Sublease, and exercises
Subtenant's option.
13. APPROVAL OF LANDLORD
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This Sublease Agreement, Addendum No. 1 and all other related documents and
plans shall be subject to approval by the Landlord, which shall not be
unreasonably withheld. If Landlord does not approve of the plans within 30
days of execution of Sublease, Subtenant may terminate the Sublease.
14. COMMON AREA MAINTENANCE, INSURANCE AND PROPERTY TAXES (TRIPLE NET)
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Sublandlord shall pay all charges for the Common Area Maintenance, Common
Area Building Insurance, and Property Taxes during the Term of the Sublease
and Option Period. In addition to all other charges required to be paid by
Subtenant pursuant to this Sublease. Subtenant shall pay for any increases
in the Common Area Insurance (building insurance) that may result from the
Subtenant's use and Tenant Improvements.
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ADDENDUM NO.1 (continued)
15. PARKING
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Subtenant shall have the right to occupy 17 parking spaces in front of the
building free of charge during the Term of Sublease and Option thereof.
16. SUBLEASE AND ADDENDUM #1 PREPARATION CLAUSE
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This Addendum No. 1 has been prepared by Xxx & Associates at the request of
Sublandlord and Subtenant. This Sublandlord and Subtenant agree to
indemnify and hold harmless Xxx & Associate, its respective Agents and
Employees, for any Liability of Loss, including without limitation,
reasonable Attorney fees and costs that may be occasioned as a result of
completing this Addendum No. 1. Subtenant and Sublandlord acknowledge being
advised by Xxx & Associates to have this Sublease (prepared by Sublandlord)
and Addendum No 1. and the master Lease reviewed by their respective
Attorneys, Accountants, or Insurance Agents for professional advice. The
Sublease document was prepared by Sublandlord.
In witness whereof, Sublandlord, Landlord, and Subtenant have executed this
Sublease and Addendum No. 1 as of the day and year first written above.
"SUBLANDLORD" "SUBTENANT'
BioMedical Applications of Los Angeles, Inc. BioMarin Pharmaceutical, Inc.
By: __________________________________ By: /s/ Xxxx X Xxxxx
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Its. _________________________________ Its: President
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Date: ________________________________ Date: 7-9-98
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LANDLORD:
By: __________________________________
Its: _________________________________
Date: ________________________________
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L E A S E
- - - - -
THIS LEASE, made and entered into as of the July 20, 1992 by and
between COMMERCIAL BUILDING COMPANY, A PARTNERSHIP (LANDLORD, and BIO MEDICAL
APPLICATIONS OF LOS ANGELES, INC. a Delaware corporation(TENANT).
W I T N E S S E T H
1. PREMISES: Landlord hereby leases to Tenant and Tenant hires from
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Landlord for the term and according to the covenants and conditions contained
herein the total space of approximately 8,000 square feet in the building
located at 0000 Xxxx Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000, together with
all the improvements, easements and appurtenances related hereto, including an
access to an auxiliary electrical generator and all the parking spaces
pertaining to the building, all of the foregoing hereinafter referred to as
"PREMISES".
2. TERM: The term of this lease shall be for a period of TEN (10) years,
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beginning May 1, 1993 and ending April 30, 2003.
3. RENT: Tenant agrees to pay during the Ten (10) year period, a minimum
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rental of Six thousand Dollars ($ 6,000.00) per month inclusive parking and
window cleaning for the 1st TWO (2) years, to increase by THREE (3)% per cent
per year thereafter payable monthly, Rental shall be payable in lawful money of
the United States of America at such places as Landlord may direct by Notice in
writing by Tenant. Tenant has a Security Deposit with Landlord in the amount of
SIX THOUSAND FIVE HUNDRED TWENTY FIVE ($ 6,525.00) DOLLARS. Landlord upon
written Notice to Tenant may elect to use such portion of said Security Deposit
as may be reasonably necessary to remedy any default by Tenant. Upon termination
of this Lease, so long as Tenant is not in default, Landlord shall refund to
TENANT the Security Deposit or the remaining portion of thereof.
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4. TAXES AND ASSESSMENTS: During the term of this lease Landlord shall pay
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and Tenant shall reimburse Landlord promptly upon receipt of bills accompanied
by evidence of payment by Landlord for;
(a) Twenty five percent (25%) of all-real property taxes imposed upon
the entire land and Ninety per cent (90%) on the building, in which the premises
are located.
(b) During any tax year in which Tenant is in possession for less
than the entire year, the taxes to be paid by Tenant shall be prorated.
(c) All improvements made by Tenant prior of this Lease or after,
shall be billed and paid by Tenant in reference to Property taxes directly.
5. CONDITIONS of PREMISES, REPAIRS and MAINTENANCE: Tenant knows the
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conditions of premises and agrees that no statements or representations as to
the condition or repair of the premises have been made by Landlord or its agents
and tenant accepts the Premises in its present condition, except that Landlord
shall pay to Tenant upon signing this Lease Agreement up front EIGHTY
THOUSAND ($ 80,000.00) Dollars for Tenant repairs. Tenant agrees that during
said term it will at its own expense keep all and every part of the premises and
appurtenances thereto, including all glass contained in or upon said premises,
in at least as good order and repair and in as clean and wholesome condition as
the premises were to Tenant and in compliance with all applicable ordinances and
will not commit or allow any waste or misuse of the premises, and that at the
expiration of the term, Tenant will yield up and deliver said premises to
Landlord in at least as good order and condition as the premises were delivered
to Tenant, damage by element, fire or other casualty, and ordinary wear
excepted.
Landlord shall not be called upon to make any alterations, improvements
or repairs whatsoever on the premises or any part thereof, or the appurtenances
thereto (except in case of fire or the elements as herein provided).
Notwithstanding the foregoing provisions hereof, Landlord agrees to keep and
maintain the exterior structural walls (not included windows, door glass or
plate glass) and roof in good order and state of repair throughout the term,
Tenant agrees to provide routine maintenance for the elevator, but the
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expense of any extraordinary repair shall be shared equally by Landlord and
Tenant. Further Landlord shall at its sole cost and expense maintain areas of
the building of which the premises are part, such as entryways sidewalks,
parking areas and landscaped areas.
All work done on the building and improvements by landlord or Tenant
shall be done in first class and good and workmanlike manners and in compliance
with all applicable statutes and ordinances and lawful regulations
thereunder.
If either party shall be in default in performing the covenants or
conditions, relating to maintenance, repair or construction obligations, then
the other party hereto after ten (10) days of written notice of such default,
may make any and all necessary repairs, and, the defaulting party shall and
agrees to pay the reasonable expense thereof, plus interest at ten (10%) per
annum until paid.
6. UTILITIES RATES & CHARGES. Tenant agrees to pay before delinquency
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and in addition to any other sums required to be paid hereunder all utilities
rates and charges for the services of utilities to the Premises.
7. DAMAGE BY FIRE OR UTHER CASUALTY. If the building or improvements
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upon the premises at any time should be damaged or destroyed, in whole or in
part, by reason of fire or other casualty covered by the fire insurance policy
with extended coverage or by earthquake then the parties agree;
(a) If such casualty results in only partial damage or destruction, the
Landlord agrees to repair and reconstruct the same to a condition at least equal
to its condition immediately preceding the casualty, using due diligence to
complete said reconstruction as soon as reasonably possible, and the Lease shall
continue in full force and effect except as herein otherwise provided, however
if the damage occurs in the final year of the term or extended term of this
lease, Landlord shall have the option to terminate this lease. Such option to be
exercised within thirty (30) days from the date of the happening of the
casualty; or
(b) If such casualty results in total destruction and would require more
than one hundred twenty (120) working days to complete the work of repair or
restoration of the building, than Landlord may, at its option, repair and
restore or may terminate the lease. Such option to be exercised by written
notice to Tenant within thirty (30) days from the date of the
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the building, the Lease shall continue in full force and effect and Landlord
shall use due diligence to repair nor reconstruct the building within said one
hundred twenty (120) day period; or
(c) Notwithstanding anything to the contrary contained herein, in the
event any such casualty occurs and damage or destruction of the building be so
extensive that it would require one hundred twenty (120) working days or more to
complete such repair then Tenant may, at its option, terminate this lease by
written notice to Landlord given within thirty (30) days from the day of the
happening of the casualty and Tenant thereafter shall be released of any further
liability hereunder except for items therefore accrued and unpaid and any
Security Deposit or prepaid rent shall be refunded to Tenant: or
(d) If neither party elects to terminate this Lease as aforementioned then
Landlord shall repair or restore the building and tenant shall be responsible to
repair or restore the Tenants improvements at the Premises.
Tenant shall be entitled to receive from insurance proceeds the replacement
value of the contents and Landlord shall be entitled to receive from insurance
proceeds the replacement value of the building.
If, during any of the periods of repair and restoration provided Tenant
is unable to use all or a portion of said building there shall be an abatement
in minimum rentals from the date of destruction to the date of completion of
reconstruction in proportion to the loss of use of the Premises to
Tenant, however rental shall not be abated, beyond thirty (30) days after the
completion of reconstruction of the building by Landlord.
8. USE OF PREMISES AND INDEMNITY. Tenant agrees to use the premises for
-----------------------------
the purpose of conducting thereon the business of a hemodialysis medical clinic
and for incidental purposes related hereto, or for any other legally permissible
business or commercial venture, provided however, that Tenant shall not use the
Premises in such manner as to violate any applicable law, rule, ordinance or
regulation of any governmental body.
Effective when Tenant takes possession of the Premises, Tenant covenants to
indemnify Landlord against and to keep and save Landlord free and harmless from
loss, damages and penalties, fines, charges, costs and expenses including
attorneys fees, suffered by or charged or imposed against Landlord on account of
any violation or charge of violation of any law, ordinance or regulation
thereunder in the operation, care or use of the Premises, or in the conduct
of any business thereon, or on account of any damage or injury, to persons or
property on the premises or resulting directly or indirectly from the
occupancy, use, misuse or neglect of the premises, or from the construction
-4-
or repair work on the Premises done by Tenant, except for Landlord negligence or
wilful misconduct.
9. ALTERATION AND IMPROVEMENTS. Tenant may, provided the value of the
---------------------------
premises is not thereby impaired at its option, make improvements to the
Premises or may install replace equipment, lighting, partitioning, ceilings,
wall coverings, floor coverings, sprinkler systems or other portions of the
premises ats its sole cost and expense as may be required by the business
conducted therein, upon approval of Plans and Specifications by Landlord, which
such improvements, installations, furniture and fixtures made by Tenant, may not
be removed by Tenant without prior written consent by Landlord and shall become
property of landlord upon Tenants surrender of the Premises. Tenant agrees that
any and all such alterations or additions shall be made in compliance with the
building code and ordinances laws and regulations applicable to the Premises.
Landlord agrees to execute all documents required to obtain necessary building
permits.
10. INSURANCES. Tenant agrees to carry and maintain at its expense during
----------
the term hereof, plate glass insurance to the full insurable value thereof on
all glass and plate glass in the Premises and Public Liability insurance in a
sum no less then $ 1,000,000.00 for each occurrence, damage to property not less
than $ 50,000.00. Said policies shall be issued for the benefit of Landlord and
Tenant and tenant shall furnish Landlord with written certificate issued by such
carrier (insurance) or with duplicate policies thereof.
Tenant will, during the term hereof, at Tenants cost and expense, carry and
maintain fire insurance with extended coverage endorsement for the benefit of
Landlord on the premises in an amount equal to at least one hundred percent
(100%) of the full insurable value thereof, excluding foundation and excavation
costs, but including the value of all improvements constructed at the Premises
by Tenant. The Policy covers flood and earthquake also.
Tenant may at its option, bring its obligation to insure under this section
within the coverage of any so called blanket policy or policies insurance which
tenant may now or hereinafter carry, by appropriate amended, rider endorsement
or otherwise, provided, however, that the interest of Landlord shall thereby be
as fully protected as there would be otherwise if this option to Tenant to use
blanket policies were not permitted. Copies of such policies shall be delivered
to Landlord within 30 days after procurement thereof. All such policies shall
contain a clause or endorsement to the effect that it may not be terminated or
materially amended except
-5-
after ten (10) days written notice thereof to Landlord.
Landlord and Tenant hereby expressly waive any and all claims against each
other for loss and/or damage arising or resulting from the occupancy of the
Premises and/or from any operation conducted therein or thereabouts caused by
fire and/or other perils insured under standard form Fire Insurance Policies
with extended coverage endorsement regardless of the cause of such damage
including damage resulting from the negligence of Tenant or its agents,
servants, employees, or invitees.
11. ASSIGNMENT. Tenant way not assign this Lease in whole or in part
----------
without first obtaining the prior written consent of Landlord, which consent
shall not be unreasonably withheld or delayed; provided, however, that Tenant
may, without such consent, assign this Lease in whole or in part as security
or otherwise to any corporation controlled by controlling or under common
control with Tenant (it being understood that Tenant shall remain liable
hereunder) or to any surviving corporation resulting from a merger or
consolidation of the Tenant with any other corporation or to any corporation
wich purchases or otherwise acquires all or substantially all of the assets of
Tenant. Any consent to any assignment, shall not be deemed to be a consent to
any subsequent assignment by Tenant other than in accordance herewith shall be
voidable by Landlord for a period of sixty (60) days after acquiring knowledge
of such assignment.
Tenant or its Assignee shall and its hereby given, the unqualified right
and privilege at its option of subletting the Premises, in whole or in part,
subject to all of the rents, terms and condition of this Lease. It is
specifically understood by and between Landlord and Tenant that any subletting
which Tenants or its Assignees make, as permitted herein, shall in no event
relieve Tenant of its obligation or Tenant hereunder, and that the right of
subletting shall be that of Tenant or its Assignees only, and shall not extend
to any subtenant.
12. BANKRUPTCY OR INSOLVENCY. In the event that Tenant is adjudged
------------------------
bankrupt or makes any assignment for the benefit of creditors, or in the event
that this Lease is levied on and put up for sale on execution foreclosure,
trustee's sale or judicial proceedings on account of debts of Tenant, or in
liquidation proceedings, or in the event a receiver or Trustee for Tenant or a
Subtenant or for this Lease or a sublease is appointed in
-6-
foreclosure proceedings, receivership proceedings under the Bankruptcy Act or
other judicial proceedings, this Lease or a sublease or any interest in the
leased property shall not thereby or by any such proceedings pass or be assigned
to any purchaser, assignee, receiver or trustee, but landlord, at its option,
and in the event any such proceedings be not dismissed within thirty (30) days
after the institution thereof may terminate this Lease and all of the rights of
the Tenant and any such succeding party in or to the premises or in or to this
Lease shall terminate, and Landlord may thereupon into possession thereof and
remove all persons therefrom.
13. FIXTURES and EQUIPMENT. Except the following equipment which may be
----------------------
removed upon Tenant's surrender of premises, such as;
1.) Central Delivery Machine
2.) Stainless Steel Hot Water heater
3.) Water Purification Equipment
4.) Dialysis Storage System
5.) Emergency Generator and Transfer Switch all improvement,
installations, affixed furniture and fixtures made by Tenant shall become
property of Landlord upon Tenants surrender of the Premises.
During the term hereof or any extended term, Tenant shall at all times pay
and discharge all taxes levied upon its personal propertry and fixtures promptly
and before delinquency and will not cause or permit any such taxed assessed upon
or against the premises.
14. CONDEMNATION. In the event that, during the term hereof or any
------------
extended term, a non material part of the Premises shall be appropriated or
taken under the power of eminent domain which partial taking does not render the
Premises unsuitable for Tenant's use, then such partial condemnation shall not
terminate this Lease and Landlord shall receive the entire award pertaining to
the building and shall use the funds derived therefrom as shall be required to
restore the building to a completed whole and Landlord shall so reconstruct the
building at its expense and Tenant shall be entitled to any award pertaining to
a loss of fixtures improvements and equipment installed by Tenant. During any
such repairs or reconstruction, Tenant shall be entitled to an abatement in
minimum rent in reasonable proportion to the loss of use of the Premises during
such period of repair and reconstruction. Upon completion of such restoration
rent payable hereunder shall be adjusted so that Tenant shall be required to pay
that portion of the rent as the value of the part of the Premises remaining
after condemnation bears to the value
-7-
of the entire Premises at the date of the condemnation.
In the event of total condemnation,this Lease shall terminate as of the
date of taking and Landlord shall be entitled to the entire award of land and
building and Tenant shall be entitled to any award of its fixtures and
equipment and improvements. Upon such termination of the Lease each party shall
be released of any further liability hereunder except for items theretofore
accrued and unpaid and items prepaid by Tenant and which shall be refunded to
Tenant.
15. DEFAULT by TENANT. Tenant covenants and agrees that, if the rental
-----------------
reserved by this Lease, or other charges to be paid hereunder by Tenant, or any
part thereof, shall be unpaid when due, or Tenant shall fail to perform any of
the other covenants, conditions or agreements herein contained, or if the
Premises should be abandoned by Tenant, Landlord may at its option, recover and
resume possession of the Premises by process of law; provided however, that if
the default be made in the payment of rentals or other charges to be paid by
Tenant, then the said Landlord shall first give Tenant ten (10) days notice in
writing to cure said default, which notice shall specify the nature and
character of said default of defaults, and if the default shall consist in
Tenants failure to perform any of the other covenants, conditions and agreements
herein contained then Landlord shall first give Tenant Thirty (30) days' notice
in writing to cure said default or defaults, and upon the failure of Tenant to
cure said defaults within the time specified in the applicable notice, Landlord
may exercise the rights herein granted; provided however, that if such defaults
is by its nature impossible to cure within said thirty (30) days and thereafter
diligently pursues the cure of said default, to completion as soon as reasonably
possible, then Tenant shall not be in default. In the event of such resumption
of possession under this Lease, or by summary proceedings, or by any other
means, Landlord may remove all persons and property from the Premises and may
relet the same as agent for Tenant. Landlord shall be entitled to hold Tenant
liable for the difference between the rent herein provided to be paid and other
charges payable by Tenant hereunder, during the residue of the original term of
this Lease had it continued in force, and the net rent for the residue of the
term realized by Landlord by means of reletting the premises to other parties.
Tenant agrees that such net rent shall be determined by deducting from the
entire rent received by reason of such reletting the expense incurred by
Landlord for necessary repairs to the premises or by reason of any breach of the
terms, covenants, and conditions of this Lease, and all and any necessary
expense
-8-
incurred in recovering the possession of the premises, and the cost and expenses
of such reletting, including the reasonable cost of removing Tenants temporary
improvements, but not including any expenses in connection with remodeling for a
new Tenant agrees that said reletting may be for the whole or the residue of the
demised term or for portions thereof from time to time as opportunity may offer
and as Landlord may deem expedient, and in such case Tenant shall be liable for
such difference from time to time as the rent would have fallen due if this
lease have continued, deducting from the payments so to be made by Tenant from a
given period as provided, herein, the net realized during the same period by
reletting as aforesaid. Landlord may, at its option, terminate this Lease, and
landlord, shall be entitled to recover from Tenant as damages the difference, if
any, between the then reasonable rental value of the Premises, for the balance
of term reserved in this Lease, and the amount of rental and other charges
payable by Tenant for the balance of the term of this Lease together with the
Rent then unpaid, including all reasonable attorney's fees, to be fixed by the
court, which may be incurred in recovering the possession of said Premises or
which may be incurred in collecting such damaged or such rents. It is further
understood and agreed, that in the event Landlord shall elect to terminate this
Lease as provided in this paragraph, Landlord shall give written notice to
Tenant to that effect and may, at its option, immediately institute legal
proceedings to collect all of said rental or damages, if any due Landlord by
Tenant.
(b) No waiver of landlord of its right to enforce any provision hereof
after any default on the Part of Tenant shall be deemed a waiver of his rights
to enforce each and all of the provisions hereof upon any further or other
default of Tenant. No reentry of the said Premises by Landlord, as herein
provided, shall be construed as an election of his part to terminate this Lease
notice to that effect is delivered to Tenant or mailed to Tenant at its last
known address and all remedies herein expressly given to Landlord shall be
cumulative to each other and to any other legal or equitable remedy which
Landlord might otherwise have in the event of a breach by Tenant, unless written
and the exercise of one right or remedy by Landlord shall not in anywise impair
the right to any other remedy until all obligations herein imposed on Tenant
have been fully performed.
16. NOTICES. Whenever any notice is required to be given or delivered
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personally or by registered mail or certified mail addressed as follows:
To Tenant:
-9-
To Tenant: Bio-Medical Applications of Los Angeles, Inc.
c/o National Medical Care, Inc,
0000 Xxxxxxx Xxxx
Xxxxxxx, XX 00000
ATTN- DSD Legal Department
To Landlord:
000 X. Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xx. 00000
Any notice mailed as above provided, shall be deemed to have given or delivered
at the time of mailing. Either party hereto may, by written notice served upon
the other, change its mailing address from time to time during the Term hereof.
17. MISCELLANEOUS.
-------------
(a) If the Premises are subject to the lien or encumbrance of a mortgage or
deed of trust, Landlord shall provide Tenant with a letter of nondisturbance, in
form and substance satisfactory to Tenant, wherein the holder of such lien or
encumbrance covenants that in case of any foreclosure or forfeiture of
landlord's interest in the Premises, Tenant's leasehold estate shall not be
disturbed so long as Tenant is not in default under this lease.
(b) The language in all parts of this Lease shall in all cases be
construed simply according to its fair meaning and not strictly for or against
either Landlord or Tenant. In any action or proceeding by one of the parties
hereto against the other with respect to enforcement of this Lease, its
interpretation or any dispute arising with respect to the said Lease, it is
anticipated, that the cost and reasonable attorney's fees incurred by the
prevailing party in such action, shall be recovered against the other party as a
part of the judgment rendered in such action or proceeding.
(c) Any waiver by either of the parties to this Lease, of any of the
terms, covenants or agreements of this lease, at any time, shall not be taken or
understood as a waiver at any time thereafter of the same terms, covenants or
conditions herein contained.
(d) This lease contains all of the covenants, conditions, stipulations,
agreements and provisions agreed upon between the parties hereto in relation to,
the Premises, and this Lease supersedes and cancels each and every other
agreement, promise and/or negotiation between the parties with reference to the
Premises; and no employee, agent or representative of Landlord or Tenant has the
authority to change, modify or alter the terms hereof, and neither party is nor
shall be bound by any inducement, statement, representation, promise or
agreement not in conformity herewith.
-10-
18. Covenants Against Liens; Inspection. Tenant shall indemnify and save
-----------------------------------
Landlord harmless from and against any lien or claim of lien attached to or upon
the Premises or any part thereof by reason of any act or omission on the part of
Tenant. Landlord, or landlord's agents shall at all reasonable times have the
right to enter upon the Premises for the purpose of inspecting the same, and for
the purpose of posting or keeping posted notices of non-responsibility or any or
all forms of notice reasonably necessary or proper to protect Landlord or the
Premises against mechanic's or materialmen's liens, or charges, or other liens
or charges, which might or could arise out of the use of the Premises by Tenant,
or the construction of the improvements or the making of alterations or repairs
to the Premises.
19. Covenant of Quiet Enjoyment. Landlords covenants and agrees to and
---------------------------
with Tenant that at all times when Tenant is not in default under this Lease
and during the term of this Lease, Tenant's quiet and peaceable enjoyment of the
Premises shall not be disturbed or interfered with by Landlord or any person
claiming by, through or under Landlord.
20. Signs. Tenant may affix, erect and maintain on the Premises such
-----
signs, as Tenant shall deem reasonably necessary to the conduct of its business
with written approval from Landlord of plans and specifications for such signs,
which approval will not be unreasonably withheld or delayed; provided however,
that the cost of erection and maintenance of any such sign shall be the
responsibility of Tenant.
21. Successors. Each and all of the Terms and Agreements herein contained
----------
shall be binding upon and inure to the benefit of the parties hereto their
heirs, personal and legal representatives, successors and assigns.
21. Surrender. Upon the last day of the term of this Lease, or any
---------
extended term, or upon any sooner termination hereof under any of the provisions
for the termination, Tenant shall quietly and peaceably surrender the possession
of the Premises thereon to landlord in at least as good order, condition and
repair as at the commencement of the term reasonable tear and wear, acts of God
and landlord responsibilities to repair excepted. In the event, that Tenant
shall hold over after the expiration of said term, or extended term such holding
over shall be from month to month only and Tenant shall pay to Landlord each
month in advance a monthly rental which shall be equivalent to the average of
monthly rentals (including minimum rental and property taxes) paid
-11-
by Tenant during the immediately preceding twelve (12) months period and during
such holding over, Tenant shall, be subject to each and all of the
terms, covenants and conditions of this Lease.
DULY EXECUTED by the parties hereto as of the day and year first
written above.
COMMERCIAL BUILDING COMPANY
By: /s/ [SIGNATURE]
--------------------------------------------
LANDLORD
BIO MEDICAL APPLICATIONS OF LOS ANGELES, INC.
By: /s/ [SIGNATURE]
--------------------------------------------
By: __________________________________________
TENANT
