Exhibit 10.29
FIRST AMENDMENT TO TEN-YEAR INDUSTRIAL NET LEASE AGREEMENT
(Building No. 2)
This First Amendment to Office Lease ("Amendment") is entered into,
and dated for reference purposes, as of June 9, 1998 by and between
METROPOLITAN LIFE INSURANCE COMPANY, a New York corporation (herein referred
to as "Metropolitan" or "Landlord"), as Landlord, and CYGNUS, INC., a
Delaware corporation (herein referred to as "Cygnus" or "Tenant"), with
reference to the following facts:
RECITALS
A. Metropolitan's predecessor in interest as Landlord (Seaport
Centre Venture Phase I, a California general partnership, herein, the
"Venture") and Tenant's predecessor in interest as Tenant (Cygnus Research
Corporation, a California corporation) entered into that certain written
Lease dated September 27, 1988 (the "Lease"), for certain premises of
approximately 37,856 square feet of space in Building 2 of Phase I ("Building
2 Space"), whose current street address remains 000 Xxxxxxxxx Xxxxx, Xxxxxxx
Xxxx, Xxxxxxxxxx, all as more particularly described in the Lease, which
Lease included Rider No. 1 To Seaport Centre Standard Lease and Exhibits A,
A-1& B, but did not include any Exhibit C which was inapplicable and was
mistakenly listed as an attachment.
B. Met acquired and holds the interest of Landlord under the
Lease.
C. Landlord and Tenant now desire to provide for extension of the
term of the Lease of the entire Premises and other amendments of the Lease,
all as more particularly provided herein.
NOW, THEREFORE, in consideration of the foregoing, and of the mutual
covenants set forth herein and of other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1. DEFINED TERMS; PREMISES. All capitalized terms not
otherwise defined in this Amendment have the meanings set forth in the Lease
unless the context clearly requires otherwise. The term "Landlord" as used
herein shall have the same meaning as and may be used interchangeably with
the term "Lessor" in the Lease, and the term "Tenant" as used herein shall
have the same meaning as and may be used interchangeably with the term
"Lessee" in the Lease. As used herein, the term "Premises" shall mean the
Building 2 Space.
SECTION 2. TENANT'S INTEREST UNDER THE LEASE. Tenant represents
and warrants and agrees that: (i) Tenant occupies the Premises and is the
Tenant under the Lease; (ii) Tenant is the successor in interest to Cygnus
Research Corporation, a California corporation, and as such is the assignee
of the interest of Tenant under the Lease, has assumed, or hereby assumes,
the obligations of Tenant under the Lease, and holds all right, title and
interest of Tenant under the Lease; (iii) has not entered into any assignment
of the Lease, and no sublease or other agreement for use or occupancy of the
Premises or any part thereof is in effect. Tenant's obligations with respect
to the representations, warranties and agreements under this Section survive
the expiration or sooner termination of the Term of the Lease and of this
Lease.
SECTION 3. EXTENSION OF TERM. Landlord and Tenant acknowledge and
agree that notwithstanding any provision of the Lease to the contrary, the
Term of this Lease expires on December 10, 1998, and that the Term is hereby
extended for the "Extended Term" commencing on December 11, 1998 (the
"Extended Term Commencement Date") and expiring on December 10, 2003, unless
sooner terminated pursuant to the terms of the Lease. This extension is with
respect to the entire Premises. This extension is further upon and subject
to the same conditions, terms, covenants and agreements contained in the
Lease except as otherwise provided in this Amendment. Landlord and Tenant
acknowledge and agree that this Amendment provides all rights and obligations
of the parties with respect to extension of the Term, whether or not in
accordance with any other provisions, if any, of the Lease regarding renewal
or extension, and
without limiting the generality of the foregoing, Tenant and Landlord
acknowledge and agree that the Option to Renew Lease Term set forth in
Paragraph 2(b) of the Lease is null, void and of no force or effect, and that
any extension beyond the Extended Term is governed by the Option to Extend
set forth in Section 13 below.
SECTION 4. PREMISES LEASED "AS-IS"; CONSTRUCTION
(a) AS-IS. Notwithstanding any provision of the
Lease to the contrary, Tenant acknowledges and agrees that (i) Tenant
occupies the Premises and has investigated their condition to the extent
Tenant desires to do so; (ii) Tenant hereby agrees that this Lease is of the
Premises in its "AS IS" condition; (iii) no representation regarding the
condition of the Premises or Building 2 has been made by or on behalf of
Landlord; and (iv) Landlord has no obligation to remodel or to make any
repairs (except as otherwise provided for in the Lease), alterations or
improvements to the Premises or the building in connection with this
Amendment or provide Tenant any allowance for any work by Tenant except to
the extent of Landlord's Maximum Contribution, as provided below.
(b) TENANT WORK GENERALLY. Landlord and Tenant
acknowledge and agree that notwithstanding any provisions of the Lease to the
contrary: (i) Tenant may desire to do certain repainting, recarpeting,
remodeling, repair, improvement or alteration in connection with this
Amendment, which for purposes of this Lease is referred to as the Tenant
Work; (ii) all Tenant Work, if any, shall be done as alterations, additions
or improvements of the Premises or any part thereof within the meaning of
Paragraph 11 of the Lease ("Tenant Alterations"), subject to and in
compliance with all conditions and provisions of the Lease applicable to
Tenant Alterations, except as otherwise expressly provided herein; (iii) if
the aggregate cost of the Tenant Work does not exceed the amount of
Landlord's Maximum Contribution (defined below), Tenant shall not be required
to obtain a completion and lien indemnity bond for it; and (iv) such work,
including all design, plan review, obtaining all approvals and permits, and
construction shall be at Tenant's sole cost and expense, except to the extent
reimbursable out of Landlord's Maximum Contribution as provided below.
(c) LANDLORD'S MAXIMUM CONTRIBUTION. Landlord's
Maximum Contribution shall mean an amount up to a maximum of One Hundred and
Thirteen Thousand Five Hundred and Sixty-eight Dollars ($113,568.00) to
reimburse Tenant for the actual costs of design, plan review, obtaining all
approvals and permits, and construction of such Alterations (i) for the
Premises, and/or (ii) for Alterations to Tenant's "Building 8 Space", at 000
Xxxxxxxxx Xxxxxx, Xxxxxxx Xxxx, Xxxxxxxxxx, or "Building 3 Space" at 000
Xxxxxxxxxx Xxxxxx, Xxxxxxx Xxxx, Xxxxxxxxxx as both are defined and provided
for in that certain third amendment of that certain Related Lease (as defined
in the Lease) being executed concurrently herewith ("Related Amendment"),
except for the additional amount of Landlord's Maximum Contribution provided
in the Related Amendment. In no event shall the Landlord's Maximum
Contribution be used to reimburse any costs of designing, procuring or
installing in the Premises any trade fixtures, movable equipment, furniture,
furnishings, telephone equipment, cabling for any of the foregoing, or other
personal property (collectively "Personal Property" for purposes of this
Rider) to be used in the Premises by Tenant, and the cost of such Personal
Property shall be paid by Tenant. Landlord's Maximum Contribution pursuant to
this Amendment and that payable under the Related Amendment shall together be
payable by Landlord to Tenant no more often than three times and no more
often than one application every thirty (30) days, and otherwise follows:
(a) for costs based upon the percentage of work completed prior to the date
of application; and (b) in each case, any amount so payable shall be paid
within 30 days after Landlord's receipt of Tenant's complete application for
payment, which application shall include reasonable substantiation of costs
incurred by Tenant, conditional lien releases to the extent of work
completed, and full, final and unconditional lien releases upon completion of
all Alterations (or, if the work is done under separate contracts or in
smaller separate identifiable segments or phases, then upon completion of and
with respect to each separate contract or phase). Tenant shall keep full and
correct accounts and shall exercise such control as may be necessary or
appropriate for the proper financial management of the construction of the
Alterations separately identified as to each of the Premises, the Building 8
Space and the Building 3 Space and, if the work is done under separate
contracts or in smaller separate identifiable segments or phases, then with
respect to each separate contract or phase. Provided further, Tenant must
prior to October 1, 1999 submit
all written applications with the items required above for disbursement or
reimbursement for any reimbursable costsout of the Landlord's Maximum
Contribution, and to the extent of any funds for which application has not
been made prior to that date or if and to the extent that the reimbursable
costs of the Tenant Work are less than the amount of Landlord's Maximum
Contribution, then Landlord shall retain the unapplied or unused balance of
the Landlord's Maximum Contribution and shall have no obligation or liability
to Tenant with respect to such excess.
SECTION 5. MONTHLY BASE RENT FOR EXTENDED TERM COMMENCING UPON
EXTENDED TERM COMMENCEMENT DATE. Notwithstanding any provision of the Lease
to the contrary, the amount of monthly base rent due and payable by Tenant
for the Premises, accruing on and after the Extended Term Commencement Date
and monthly thereafter for the Extended Term shall be as follows:
Period from/through Monthly Total Monthly Rate/Square Foot
12/11/1998 - 12/10/1999 $83,283.20 $2.20
12/11/1999 - 12/10/2000 $85,933.12 $2.27
12/11/2000 - 12/10/2001 $88,204.48 $2.33
12/11/2001 - 12/10/2002 $90,854.40 $2.40
12/11/2002 - 12/10/2003 $93,882.88 $2.48
SECTION 6. TENANT'S SHARE OF OPERATING EXPENSES. Landlord and
Tenant desire to set forth with greater particularity the components of
operating expenses pursuant to Paragraph 7 of the Lease, and Tenant's
proportionate share of such operating expenses allocated to Building 2, to
Phase I and to the Project (defined below). Notwithstanding any provision of
the Lease to the contrary, during the Extended Term in addition to the base
rent payable by Tenant, Tenant shall pay Tenant's proportionate share of all
operating expenses as set forth below. Operating expenses and exclusions
therefrom are as defined in the Lease, except as otherwise provided below.
Operating Expenses are not limited by references to the building in Paragraph
7 of the Lease, but are determined with respect to and as allocable to the
building in which the Premises is located, to Phase I and to the Project, and
Tenant shall pay its proportionate share of such operating expenses, as
follows:
(i) Tenant's proportionate share of Building Operating
Expenses (defined below) of and attributable to Building 2 as of the
date hereof equals one hundred percent (100%);
(ii) Tenant's proportionate share of Project Operating
Expenses (defined below) is the percentage obtained by dividing the
aggregate rentable square footage of the Premises located in the Project
(defined below) by the total rentable square footage of the Project, and
as of the date hereof equals seven and 44/1000 percent (7.044%);
(iii) Tenant's proportionate share of Phase Operating Expenses
(defined below) of and attributable to Phase I, in which Building 2 is
located, is the percentage obtained by dividing the aggregate rentable
square footage of the Premises located in Phase I by the total rentable
square footage of Phase I, and as of the date hereof equals twelve and
542/1000 percent (12.542%);
(iv) operating expenses of and attributable to each building
in which the Premises or part thereof is located includes all operating
expenses that are directly and separately identifiable to the operation,
maintenance or repair of such building and may also be referred to as
"Building Operating Expenses" for each such building. Tenant's
proportionate share of Building Operating Expenses is the percentage
obtained by dividing the rentable square footage of the Premises located
in each building by the total rentable square footage of such building;
(v) operating expenses of and attributable to the Project
("Project Operating Expenses") includes all operating expenses with
respect to the Project (defined below) that are not included as Phase
Operating Expenses (defined below) and that are not either Building
Operating
Expenses or operating expenses directly and separately identifiable to
the operation, maintenance or repair of any other leasable building
located in the Project, but Project Operating Expenses includes
operating expenses allocable to any areas of a building during such
time as such areas are made available by Landlord for the general
common use or benefit of the tenants of the Project, and their
employees and invitees, or the public, as such areas currently exist
and as they may be changed from time to time. As of the date hereof,
"Project" means and consists of Phase I and Phase II of the
development commonly known as Seaport Centre in Redwood City,
California, and any expenses allocable to either pursuant to any
covenants, conditions and restrictions, or any reciprocal easements,
or any owner's association now or hereafter affecting them. In the
event any building is added to or deleted from Tenant's Phase or any
Phase is added to or deleted from the Project which affects tenant's
proportionate share of either or both, Landlord shall recalculate
tenant's proportionate share as applicable;
(vi) operating expenses of a Phase ("Phase Operating
Expenses") may include operating expenses that are directly and
separately identifiable to the operation, maintenance or repair of each
leasable building located in that Phase (including but not limited to
Building Operating Expenses) and may include Project Operating Expenses
that are separately identifiable to a Phase; and
(vii) Landlord shall have the right to allocate a particular
operating expense as Building Operating Expenses, Project Operating
Expenses or Phase Operating Expenses; however, in no event shall any
portion of Building Operating Expenses, Project Operating Expenses or
Phase Operating Expenses be assessed or counted against Tenant more than
once.
SECTION 7. UTILITIES. Landlord and Tenant desire to set forth
with greater particularity the allocation of utilities expenses pursuant to
Paragraph 8 of the Lease, and Tenant's proportionate share of such operating
expenses allocated to the building in which the Premises is located, to Phase
I and to the Project. Notwithstanding any provision of the Lease to the
contrary, excluding all utilities separately billed or metered to Tenant
which shall be paid for solely and separately by Tenant, during the Extended
Term in addition to the base rent and operating expenses payable by Tenant,
Tenant shall pay Tenant's proportionate share of all utilities expenses as
allocated and paid in the same proportionate share as set forth in Section 6
of this Amendment regarding operating expenses.
SECTION 8. SECURITY DEPOSIT. Notwithstanding any provision of
Paragraph 6 of the Lease to the contrary, Landlord and Tenant acknowledge and
agree that: (a) as of the date hereof the only Security Deposit under the
Lease held by Landlord is the security deposit of Thirty Thousand Five
Hundred and Sixty-two Dollars ($30,562.00) held under the Related Lease, as
amended, and that such amount is substituted for the reference to "Twenty
Thousand Five Hundred Sixty-two Dollars ($20,562)" in Paragraph 6 of the
Lease; and (b) except as modified above, the provisions of such Paragraph 6
shall continue to apply.
SECTION 9. PARKING. Landlord and Tenant acknowledge and agree
that during the Extended Term the aggregate number of parking spaces provided
for Tenant's use pursuant to Paragraph 30 of the Lease shall be one hundred
and twenty-five (125) undesignated parking spaces.
SECTION 10. REMOVAL OF TENANT ALTERATIONS. Upon the expiration or
earlier termination of the Term of the Lease, including the Extended Term
provided for in this Amendment, Tenant shall not be required to remove any of
the alterations, additions or improvements to or of the Premises or any part
thereof by Tenant for Tenant's initial occupancy under the Lease or made
thereafter and still existing as of the date of this Amendment, provided that
such alterations, additions or improvements were made in accordance with the
applicable provisions of the Lease, as amended. Landlord and Tenant
acknowledge and agree that hereafter, all alterations, additions or
improvements of the Premises or any part thereof within the meaning of
Paragraph 11 of the Lease ("Tenant Alterations", as used in Section 4(b) of
this Amendment), including Tenant Work, if any, as used in Section 4(b) of
this Amendment, shall be subject to and in compliance with all conditions and
provisions of the Lease applicable to Tenant Alterations, including the
procedure set forth
in the third paragraph of Paragraph 11 of the Lease to identify those Tenant
Alterations which Tenant desires to remove at the end of the Lease term and
those which Landlord will require Tenant to remove.
SECTION 11. BOOKS AND RECORDS. Supplementing the second sentence
of the third paragraph of Paragraph 7 of the Lease, as amended, the Tenant or
its representative (which representative shall be a certified public
accountant licensed to do business in the state in which the Property is
located and whose primary business is certified public accounting) shall have
the right, for a period of ninety (90) days following the date upon which
Landlord furnishes Tenant with Landlord's statement accounting for actual
costs of operating expenses (herein, "Landlord's Statement") is delivered to
Tenant, to examine the Landlord's books and records with respect to the items
in the foregoing statement of Operating Expenses during normal business
hours, upon written notice, delivered at least three (3) business days in
advance. If Tenant does not object in writing to Landlord's Statement within
one hundred and twenty (120) days of Tenant's receipt thereof, specifying the
nature of the item in dispute and the reasons therefor, then Landlord's
Statement shall be considered final and accepted by Tenant. Any amount due
to the Landlord as shown on Landlord's Statement, whether or not disputed by
Tenant as provided herein, shall be paid by Tenant when due within thirty
(30) days after delivery of Landlord's Statement, as provided in Paragraph 7
of the Lease, but such payment is without prejudice to any written exception
Tenant may make pursuant to this Section.
SECTION 12. PARAGRAPH 38 OF THE LEASE. Notwithstanding any
provision of the Lease to the contrary, Paragraph 38 of the Lease is of no
force or effect and is hereby deleted from the Lease.
SECTION 13. OPTION TO EXTEND.
(a) Landlord hereby grants Tenant a single option to extend the
Extended Term of the Lease for an additional period of five (5) years (such
period may be referred to as the "Option Term"), as to the entire Premises as
it may then exist, upon and subject to the terms and conditions of this
Section (the "Option To Extend"), and provided that at the time of exercise
of such right: (i) Tenant must be in occupancy of the entire Premises; and
(ii) there has been no material adverse change in Tenant's financial position
from such position as of the date of execution of the Lease, as certified by
Tenant's independent certified public accountants, and as supported by
Tenant's certified financial statements, copies of which shall be delivered
to Landlord with Tenant's written notice exercising its right hereunder.
(b) Tenant's election (the "Election Notice") to exercise the
Option To Extend must be given to Landlord in writing no earlier than the
date which is two hundred and seventy (270) days before the Expiration Date
and no later than the date which is two hundred and forty (240) days prior to
the Expiration Date. If Tenant either fails or elects not to exercise its
Option to Extend by not timely giving its Election Notice, then the Option to
Extend shall be null and void.
(c) The Option Term shall commence immediately after the
expiration of the Extended Term of the Lease. Tenant's leasing of the
Premises during the Option Term shall be upon and subject to the same terms
and conditions contained in the Lease except that (i) the monthly base rent,
plus payment of Tenant's proportionate share of Operating Expenses and
Utilities charges pursuant to the Lease (in addition to all expenses paid
directly by Tenant to the utility or service provider, which direct payments
shall continue to be Tenant's obligation) shall be amended to equal the
"Option Term Rent", defined and determined in the manner set forth in the
immediately following Subsection; (ii) the Security Deposit provisions shall
remain as provided in the Lease; (iii) Tenant shall accept the Premises in
its "AS-IS" condition without any obligation of Landlord to repaint, remodel,
repair (except as otherwise provided for in the Lease), improve or alter the
Premises or to provide Tenant any allowance therefor; and (iv) there shall be
no further option or right to extend the term of the Lease. If Tenant timely
and properly exercises the Option To Extend, references in the Lease to the
Term shall be deemed to mean the Extended Term as extended by the Option Term
unless the context clearly requires otherwise.
(d) The Option Term Rent shall mean the greater of (i) the monthly
base rent payable by Tenant under this Lease calculated at the rate applicable
for the last full month of the Extended Term,
plus payment of Tenant's proportionate share of Operating Expenses and
Utilities charges pursuant to the Lease (in addition to all expenses paid
directly by Tenant to the utility or service provider, which direct payments
shall continue to be Tenant's obligation) (collectively, "Preceding Rent") or
(ii) the "Prevailing Market Rent". As used herein Prevailing Market Rent
shall mean the rent and all other monetary payments, escalations and triple
net payables by Tenant, including consumer price increases, that Landlord
could obtain from a third party desiring to lease the Premises for a term
equal to the Option Term and commencing when the Option Term is to commence
under market leasing conditions, and taking into account the following: the
size, location and floor levels of the Premises; the type and quality of
tenant improvements; age and location of the Project; quality of construction
of the Project; services to be provided by Landlord or by tenant; the rent,
all other monetary payments and escalations obtainable for new leases of
space comparable to the Premises in the Project and in comparable buildings
in the mid-Peninsula area, and other factors that would be relevant to such a
third party in determining what such party would be willing to pay therefor.
The determination of Prevailing Market Rent based upon the foregoing criteria
shall be made by Landlord, in the good faith exercise of Landlord's business
judgment. Within thirty (30) days after Tenant's exercise of the Option To
Extend, Landlord shall notify Tenant of Landlord's determination of Option
Term Rent for the Premises. If Landlord's determination of Prevailing Market
Rent is greater than the Preceding Rent, and if Tenant, in Tenant's sole
discretion, disagrees with the amount of Prevailing Market Rent determined by
Landlord, Tenant may elect to revoke and rescind the exercise of the option
by giving written notice thereof to Landlord within forty-five (45) days
after notice of Landlord's determination of Prevailing Market Rent.
(e) This Option to Extend is personal to Cygnus and to any
assignee of the Lease which is an Affiliate (defined below) and may not be
used by, and shall not be transferable or assignable (voluntarily or
involuntarily) to any other person or entity. For purposes of this Section,
"Affiliate" means (i) any subsidiary, affiliate or division controlled by
Tenant; (ii) a successor corporation related to Tenant through merger,
consolidation or non-bankruptcy reorganization; or (iii) a purchaser of
substantially all of Tenant's assets, in each case of (i), (ii) and (iii)
which also must satisfy the requirements described in the paragraph
immediately following Paragraph 15(d) of the Lease.
(f) Upon the occurrence of any of the following events, Landlord
shall have the option, exercisable at any time prior to commencement of the
Option Term, to terminate all of the provisions of this Section with respect
to the Option to Extend, with the effect of canceling and voiding any prior
or subsequent exercise so this Option to Extend is of no force or effect:
(i) Tenant's failure to timely exercise the Option to Extend in
accordance with the provisions of this Section.
(ii) The existence at the time Tenant exercises the Option to
Extend or at the commencement of the Option Term of any default beyond any
applicable notice and grace period.
(g) Without limiting the generality of any provision of the Lease,
time shall be of the essence with respect to all of the provisions of this
Section.
SECTION 14. NOTICES & ADDRESSES. The Lease is hereby amended to
provide that all bills, statements, consents, notices, requests, demands or
communications which either party may desire or be required to give to the
other shall be in writing and delivered to the other party personally or sent
by registered or certified or express United States mail, return receipt
requested, postage prepaid, or by reputable overnight delivery service
addressed to Landlord or Tenant, as applicable, at the addresses set forth at
the end of this Section. Any item sent by registered or certified or express
mail or by such delivery service shall be effective, respectively, upon being
deposited in the United States mail or when deposited with such delivery
service, as shown by the records of the mail or such service. However, the
time period in which a response to any such item must be given shall commence
to run from (a) in the case of mail, the date of receipt of the item by the
addressee thereof shown on the return receipt, or (b) in the case of such
overnight delivery service, the date of acceptance of delivery of the item by
an employee, officer, director or
partner of the recipient party. Rejection or other refusal to accept or the
inability to deliver because of changed address of which no notice was given,
as indicated by mail return receipt or advice from such courier service,
shall be deemed to be receipt of the item sent. Notices may also be served
by personal service upon any officer, director or partner of Landlord or
Tenant, and shall be effective upon such service. If Tenant is notified of
the identity and address of any Mortgage and/or Trust Deed Holder (as used in
Paragraph 29(b) of the Lease), Tenant shall give, by one of the methods
described above, such party any Notice of Default (as used in Paragraph 29(b)
of the Lease) which Tenant gives to Landlord under the Lease. Any party
hereto, or any Mortgage and/or Trust Deed Holder described in the preceding
sentence, may by notice given by one of the methods described above designate
new addreses for notices to it. Counsel for either party may deliver notices
on behalf of its client. The current addresses for notices to be sent to
Landlord and Tenant respectively pursuant to this Section are as follows:
Notices to Landlord shall be addressed:
Metropolitan Life Insurance Company
c/o Seaport Centre Project Manager
000 Xxxxxxxxxx Xxxxx
Xxxxxxx Xxxx, XX 00000
with copies to the following:
Metropolitan Life Insurance Company
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxx Xxxx, XX 00000
Attention: Assistant Vice President
Notices to Tenant shall be addressed as follows:
Cygnus, Inc.
000 Xxxxxxxxx Xxxxx
Xxxxxxx Xxxx, XX 00000
Attention: Mr. Xxxxx Xxxxx, Senior Vice President, Human
Resources and Administration
SECTION 15. TIME OF ESSENCE. Without limiting the generality of any
other provision of the Lease, time is of the essence to each and every term
and condition of this Amendment.
SECTION 16. BROKERS. Tenant represents that in connection with this
Amendment it is represented by Staubach Company ("Tenant's Broker") and,
except for Tenant's Broker and Landlord's Broker (defined below), Tenant has
not dealt with any real estate broker, sales person, or finder in connection
with this Lease, and no such person initiated or participated in the
negotiation of this Lease, or showed the Premises to Tenant. Tenant hereby
agrees to pay any commission to which Tenant's Broker is entitled in
connection with this Lease and agrees that Landlord is not obligated to pay
or fund any commission payable to Tenant's Broker. Tenant hereby agrees to
indemnify, protect, defend and hold Landlord harmless from and against any
and all liabilities and claims for commissions and fees arising out of a
breach of the foregoing representation or agreement. Landlord represents
that in connection with this Lease it is represented by Cornish and Xxxxx
("Landlord's Broker") and, except for Landlord's Broker and Tenant's Broker,
Landlord has not dealt with any real estate broker, sales person, or finder
in connection with this Lease, and no such person initiated or participated
in the negotiation of this Lease. Landlord hereby agrees to pay any
commission to which Landlord's Broker is entitled in connection with this
Lease pursuant to Landlord's written agreement with Landlord's Broker and
agrees that Tenant is not obligated to pay or fund any commission payable to
Landlord's Broker. Landlord hereby agrees to indemnify, protect, defend and
hold Tenant harmless from and against any and all liabilities and claims for
commissions and fees arising out of a breach of the foregoing representation
or agreement.
SECTION 17. ATTORNEYS' FEES. Each party to this Amendment shall bear
its own attorneys' fees and costs incurred in connection with the discussions
preceding, negotiations for and documentation of this Amendment. In the
event any party brings any suit or other proceeding with respect to the
subject matter or enforcement of this Amendment or the Lease, as amended, the
prevailing party (as determined by the court, agency or other authority
before which such suit or proceeding is commenced) shall, in addition to such
other relief as may be awarded, be entitled to recover attorneys' fees,
expenses and costs of investigation as actually incurred, including court
costs, expert witness fees, costs and expenses of investigation, and all
attorneys' fees, costs and expenses in any such suit or proceeding (including
in any action or participation in or in connection with any case or
proceeding under the Bankruptcy Code, 11 United States Code Sections 101 ET
SEQ., or any successor statutes, in establishing or enforcing the right to
indemnification, in appellate proceedings, or in connection with the
enforcement or collection of any judgment obtained in any such suit or
proceeding).
SECTION 18. EFFECT OF HEADINGS; RECITALS: EXHIBITS. The titles or
headings of the various parts or sections hereof are intended solely for
convenience and are not intended and shall not be deemed to or in any way be
used to modify, explain or place any construction upon any of the provisions
of this Amendment. Any and all Recitals set forth at the beginning of this
Amendment are true and correct and constitute a part of this Amendment as if
they had been set forth as covenants herein. Exhibits, schedules, plats and
riders hereto which are referred to herein are a part of this Amendment.
SECTION 19. FORCE AND EFFECT. Except as modified by this Amendment,
the terms and provisions of the Lease are hereby ratified and confirmed and
shall remain in full force and effect. Should any inconsistency arise
between this Amendment and the Lease as to the specific matters which are the
subject of this Amendment, the terms and conditions of this Amendment shall
control. This Amendment shall be construed to be a part of the Lease and
shall be deemed incorporated in the Lease by this reference.
SECTION 20. ENTIRE AGREEMENT; AMENDMENT. The Lease as amended by
this Amendment constitutes the full and complete agreement and understanding
between the parties hereto and shall supersede all prior communications,
representations, understandings or agreements, if any, whether oral or
written, concerning the subject matter contained in the Lease as so amended,
and no provision of the Lease as so amended may be modified, amended, waived
or discharged, in whole or in part, except by a written instrument executed
by all of the parties hereto.
SECTION 21. AUTHORITY. Each party represents and warrants to the
other that it has full authority and power to enter into and perform its
obligations under this Amendment, that the person executing this Amendment is
fully empowered to do so, and that no consent or authorization is necessary
from any third party. Landlord may request that Tenant provide Landlord
evidence of Tenant's authority.
SECTION 22. COUNTERPARTS. This Amendment may be executed in
duplicates or counterparts, or both, and such duplicates or counterparts
together shall constitute but one original of the Amendment. Each duplicate
and counterpart shall be equally admissible in evidence, and each original
shall fully bind each party who has executed it.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first set forth above.
TENANT: CYGNUS, INC
a Delaware corporation
By: /s/ Xxxxx X. Xxxxx, Xx.
---------------------------------------------
Xxxxx Xxxxx,
Senior Vice President, Human Resources and
Administration
Date: June 9, 1998
LANDLORD: METROPOLITAN LIFE INSURANCE COMPANY,
a New York corporation
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------------
Xxxxxx X. Xxxxx
Assistant Vice President
Date: June 9, 1998
