Exhibit 10.23
SECOND AMENDMENT TO LEASE
THIS SECOND AMENDMENT TO LEASE ("Amendment") dated this 31 day of April,
1996, is entered into by and between XXXXXXXXXXXXX PROPERTIES, INC. XVII, a
Delaware corporation ("Landlord") and PATHOGENESIS CORPORATION, a Delaware
corporation ("Tenant").
WITNESSETH:
WHEREAS, Landlord is successor in interest to The Equitable Life Assurance
Society of the United States ("Original Landlord");
WHEREAS, Old Orchard Office Venture, the predecessor to Original Landlord
and Tenant entered into that certain Lease dated October ____, 1992 (the
"Original Lease") for Suite 910 (the "Original Premises") in that certain
building located at 0000 Xxx Xxxxxxx Xxxx, Xxxxxx, Xxxxxxxx (the "Building");
and
WHEREAS, Original Landlord and Tenant entered into that certain First
Amendment to Lease, dated March, 1995 (the "First Amendment," the Original Lease
as amended by the First Amendment is hereinafter referred to as the "Amended
Lease");
WHEREAS, Landlord and Tenant now desire to add approximately 1,786 square
feet of net rentable area, as shown on Exhibit A attached hereto and hereby made
a part hereof (the "New Premises") to the Original Premises and to amend certain
other provisions of the Amended Lease;
NOW, THEREFORE, for and in consideration of the mutual covenants and
conditions contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Landlord and Tenant
hereby agree as follows:
1. From the date hereof and until July 1, 1996 (such date being the
"Effective Date"), the terms and provisions of the Amended Lease shall remain in
full force and effect and shall not be deemed to be amended by this Amendment.
From and after the Effective Date, the Amended Lease shall be deemed amended by
this Amendment (the Amended Lease, as amended by this Amendment being
hereinafter referred to as the "Lease").
2. Effective from and after the Effective Date, Landlord leases to
Tenant, and Tenant accepts and leases from Landlord, in accordance with the
provisions, terms and conditions of the Amended Lease as amended by this
Amendment, the New Premises, which New Premises contains approximately 1,786
square feet of net rentable area. From and after the Effective Date, the term
"Leased Premises" in the Lease shall mean the Original Premises as expanded by
the New Premises. Subject to the conditions of this paragraph, Landlord hereby
demises and leases the New Premises on an "as-is" "where-is" basis. The parties
hereto acknowledge and agree that the taking of possession by Tenant shall be
conclusive evidence that the New Premises are in good order and repair and are
in satisfactory condition as of the date of the taking of possession; provided,
however, that Tenant's acceptance of the New Premises is subject to Tenant's
right to prepare and submit a punch list of incomplete or incorrect items within
30 days of taking possession of the New Premises. Landlord shall repair all
items on the punch list within 30 days of receiving the punch list from Tenant.
Landlord and Landlord's agents have made no representations, warranties or
promises, express or implied with respect to
the condition of the Building, the New Premises, the existing fixtures or the
building Systems serving the New Premises or as to any other thing or fact
related thereto, and no rights, easements or licenses are acquired by Tenant by
implication or otherwise except as expressly set forth herein. Notwithstanding
the foregoing, Landlord shall perform the work described in Exhibit B attached
hereto prior to the Effective Date.
3. From and after the Effective Date, the Schedule set forth on
pages 1 and 2 of the Lease shall be deleted in its entirety and replaced with
the following:
"SCHEDULE
A. Description of Leased Premises: Suite 910, located on the ninth (9th)
floor of the Building, consisting of 4,304 square feet of net rentable
area, more or less.
B. Tenant's type of business: sales and administrative office for
pharmaceutical company.
C. Base Rent: Monthly RSF
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From the Effective Date through 12/31/96: $ 4,168.59 $ 11.62
From 1/1/97 through 6/30/97: 4,237.83 11.82
From 7/1/97 through 12/31/97: 4,312.24 12.02
From 1/1/98 through 6/30/98: 4,383.59 12.22
From 7/1/98 through 12/31/98: 4,458.01 12.43
Notwithstanding anything contained in the Lease to the contrary, Base Rent
shall be determined on a monthly basis as Set forth in this Schedule.
D. Tenant's Share: 2.05% (the percentage of the number of square feet of
net rentable area in the Leased Premises to 209,616, the number of
square feet of net rentable area in the Building).
E. Term: A term commencing on the date specified in Paragraph 2A
(hereinafter referred to as the "Commencement Date") and ending on
December 31, 1998 (hereinafter referred to as the "Termination Date")
unless otherwise terminated as provided in this Lease.
F. Security Deposit: $ -0-
G. Broker: CB Commercial
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H. Addresses for Notices:
If to Landlord:
Xxxxxxxxxxxxx Properties, Inc. XVII
c/o X'Xxxxxx Realty Advisors Incorporated
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Asset Manager
with a copy to:
Xxxxx Interests Limited Partnership
0000 Xxx Xxxxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
Attn: Property Manager
If to Tenant:
Pathogenesis Corporation
Xxxxx 000
0000 Xxx Xxxxxxx
Xxxxxx, Xxxxxxxx 00000
This Lease is subject to the Terms and Conditions and the provisions
of any riders attached hereto, which Terms and Conditions and riders
are hereby made a part of this Lease."
4. From and after the Effective Date, Paragraphs 2B, 31, 32 and 33
of the Amended Lease shall be deleted in their entirety.
5. From and after the Effective Date, Paragraph 4E of the Amended
Lease shall be deleted and replaced with the following:
"E. EXAMINATION OF BOOKS AND RECORDS. Tenant or its
representative, at the sole cost of Tenant, shall have the right to
examine Landlord's books and records with respect to the items set
forth in Landlord's statements regarding actual Operating Expenses and
actual Taxes, upon reasonable prior notice and during normal business
hours at any time within thirty (30) days following delivery to Tenant
of such statements (such period being the "Review Period"). Upon
Tenant's timely request to examine Landlord's books and records,
Landlord shall, in Landlord's sole discretion, elect to either (a)
allow Tenant to conduct such examination by engaging Tenant's choice
of either Xxxxxx Xxxxxxxx, Price Xxxxxxxxxx, Xxxxx and Young, Deloitte
& Touche or Coopers & Xxxxxxx to perform such examination or (b)
directly engage one of the above accounting firms to perform such
examination Tenants behalf, the cost and expense of
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which, in either case, shall be payable by Tenant. Unless Tenant shall
take written exception to any item prior to the date that is thirty
(30) days following expiration of the Review Period, Landlord's
statements regarding actual Operating Expenses and Taxes, as the case
may be, shall be considered final and accepted by Tenant. Any amount
due to Landlord as shown on relevant statements, regardless of whether
written exception is taken, shall be paid by Tenant when due without
prejudice to any such written exception. If, after such written
exception is taken, Landlord and Tenant are unable to reach agreement
as to the resolution of such item within sixty (60) days following
Landlord's receipt of the written exception, then either Landlord or
Tenant may refer the decision of said issue to an expert employed by
one of the accounting firms set forth above, having not less than ten
(10) years' experience in commercial real estate management (the
"Auditor"), said Auditor to be reasonably acceptable to both Landlord
and Tenant. The decision of the Auditor shall be final. The parties
shall divide equally all fees and expenses of the Auditor; provided,
however, that if the Auditor determines that Landlord has made errors
adverse to Tenant in excess of seven percent (7%) of the aggregate
amount of the Operating Expenses or Taxes shown on the applicable
statements, then the Auditor's fees and expenses shall be paid
entirely by Landlord."
6. It is expressly understood and agreed that this Amendment is
intended to modify and amend the Amended Lease only to the extent set forth
herein and that all other provisions, terms and conditions of said Amended Lease
(including all riders, exhibits and other attachments thereto), as hereby
modified and amended, shall remain in full force and effect and are hereby
ratified and confirmed.
7. It is expressly understood and agreed that none of Landlord's
covenants, undertakings or agreements made in this Amendment or the Amended
Lease are made or intended as personal covenants, undertakings or agreements by
Landlord, and any liability of Landlord for damages for breach or nonperformance
by Landlord or otherwise arising under or in connection with this Amendment or
the Amended Lease or the relationship of Landlord and Tenant hereunder, shall be
collectible only out of Landlord's interest in the Land and Building, in each
case as the same may then be encumbered, and no personal liability is assumed
by, nor at any time may be asserted against, Landlord, or its shareholders,
officers, directors, employees, agents, legal representatives, successors or
assigns, all such liability, if any, being expressly waived and released by
Tenant.
8. All capitalized terms used herein shall have the same meanings as
in the Amended Lease, unless otherwise defined herein. In the event of any
conflict between the terms and provisions of this Amendment and the terms and
provisions of the Amended Lease, the terms and provisions of this Amendment
shall control.
9. This Amendment may be executed in counterparts.
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EXHIBIT A
[GRAPHIC OMITTED] - FLOOR PLAN
EXHIBIT B
Landlord's Work
Landlord shall improve the Lease Premises as detailed below and illustrated in
the attached Exhibit B2:
A. Remove portion of wall, create doorway and patch carpet
B. Remove door and frame
C. Remove partial wall
D. Add full-height wall and door and frame
E. Remove wall and patch carpet
F. Remove door and frame
G. Remove glass door. Install standard wood door and frame
EXHIBIT B2
[GRAPHIC OMITTED] - FLOOR PLAN
IN WITNESS WHEREOF, the parties have set their hands hereto as of the day
and year first above written.
LANDLORD:
XXXXXXXXXXXXX PROPERTIES, INC. XVII, a
Delaware corporation
By: /s/ [SIGNATURE ILLEGIBLE]
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Its: V.P.
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TENANT:
PATHOGENESIS CORPORATION, a Delaware
corporation
By: /s/ [SIGNATURE ILLEGIBLE]
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Its: Sr. VP & CFO
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