EXHIBIT 10.5.2
ADDENDUM ("ADDENDUM")
TO THAT REAL PROPERTY LEASE
DATED JANUARY 25, 1997,
BY AND BETWEEN XXXXXX X. XXXX, XXXXX XXXXXXX,
XXXXXX X. XXXXX, AND XXXXXXXXX X. XXXXX ("LESSOR")
AND
DELTAGEN, A DELAWARE CORPORATION ("LESSEE")
PARAGRAPH 1.2 CONTINUED:
The Premises are more fully described by way of a legal
description contained in Exhibit A, attached hereto.
PARAGRAPH 1.4 CONTINUED. EARLY POSSESSION.
Upon execution of this Lease, Lessee shall have the right to occupy
the Premises for the purpose of constructing its improvements therein. Lessee
agrees not to interfere with the work of Lessor. In the event Lessee's work
interferes with Lessor's ability to complete its work and to commence
the term of this Lease, then the Lease term shall commence on the date
Lessor would have had the Premises available for occupancy but for the delay
caused by Lessee.
PARAGRAPH 1.5 CONTINUED:
Rent is payable on the first day of each month, commencing on March
1, 1997. However, should Lessor complete those items it has agreed to do
under Paragraph 50 of the Addendum prior to March 1, 1997, then the Lease
Commencement Date shall be the date that Lessor completed its work, and
Lessee shall pay a pro rated Base Rent for the partial month. In the event
Lessor fails to complete its work, under the terms of the Lease, and the work
is completed after March 1, 1997, then the Lease Commencement Date shall
be the latter date and the Base Rent shall be pro rated.
PARAGRAPH 2.2. CONTINUED:
Lessor agrees to transfer to Lessee, as of the Lease Commencement
Date, any warranties Lessor has for work performed by Lessor or its
contractors or agents within the Premises.
PARAGRAPH 6.2(a). CONTINUED:
Lessor acknowledges and consents to Lessee's use of the
"Hazardous Substances" disclosed in Lessee's Application for
Conditional use Permit submitted to and approved by the City of San Xxxxxx.
PARAGRAPH 6.2(d). CONTINUED:
A new Paragraph, 6.2(d) is included in the Lease as follows:
Lessor shall indemnify, protect, defend and hold Lessee,
its shareholders, officers, directors, employees and agents harmless
from and against any and all losses and/or damages, liabilities,
judgements, costs, claims, liens, expenses, penalties, permits and
attorney's fees and consulting fees arising out of or involving any
Hazardous Substance in or below the Premises which existed prior to the
commencement date of this Lease, or which entered upon or under the
Premises, after the Lease Commencement Date, resulting from the actions of
others than Lessee, its employees, contractors, invitees, agents or others
within the control of Lessee. Lessor's obligations under this Paragraph 6
shall include, but not be limited to the effects of any
contamination or injury to person, property, or the environment created
or suffered by Lessee or others, and the cost of the investigation
(including consultants and attorneys' fees and testing, removal,
remediation, restoration and/or abatement thereof) or any contamination
therein involved, and shall survive the expiration or early termination
of this Lease. No termination, cancellation or release agreement entered
into by Lessee shall release Lessor from its obligations under this Lease
with respect to Hazardous Substances or storage tanks, unless specifically
agreed to by Lessee in writing at the time of such agreement.
Lessee shall notify Lessor in writing immediately upon discovery of
any facts on which Lessee may base a claim for indemnification under this
Paragraph.
PARAGRAPH 6.3 CONTINUED:
Lessee shall, at Lessee's sole cost and expense, fully, diligently,
and in a timely manner, comply with all "Applicable Law" relating to
Lessee's specific occupancy of the Premises. Lessee shall, within five days
after receipt of Lessor's written request, provide Lessor with copies of
all documents and information, including, but not limited to, permits,
registrations, manifests, applications, reports and certificates,
evidencing Lessor's compliance with any Applicable Law, and shall
immediately, upon receipt, notify Lessor, in writing, of any threatened or
actual claim, notice, citation, warning, complaint or report pertaining
to or involving failure by Lessee to comply with any Applicable Law.
"Applicable Law" for purposes of this Agreement, shall mean all federal,
state and local law, ordinances, regulations and permits required.
PARAGRAPH 7.1 CONTINUED:
Notwithstanding anything else contained in the Lease to the
contrary, Landlord shall be responsible for all structural repairs and
Paragraph 7.1 is subject to the terms and conditions contained in Paragraph
50 of the Addendum.
PARAGRAPH 7.4. CONTINUED:
Notwithstanding anything else in the Lease to the contrary,
Lessee's "trade fixtures" will remain the property of Lessee, and Lessee
shall have the right to remove all of its trade fixtures at the termination
of this Lease.
PARAGRAPH 8.7 CONTINUED:
Except for Lessee's negligence and/or breach of express
warranties, Lessor shall indemnify, protect, defend and hold harmless the
Premises, Lessee and its agents, shareholders and lenders from and against
any and all claims, loss of rents and/or damages, costs, liens,
-2-
judgements, penalties, permits, attorney's and consultant's fees, expenses
and/or liabilities arising out of, involving or in dealing with Lessor's
ownership of the Premises, any act, omission or neglect of Lessor, its
agents, contractors, employees or invitees, and out of any default or breach
by Lessor in the performance in a timely manner of any obligation of Lessor's
part to be performed under this Lease. The foregoing shall include, but not
be limited to, the defense or pursuit of any claim or any action or
proceeding involved therein, and whether or not (in the case of claims made
against Lessee) litigated and/or reduced to judgment, and whether well
founded or not. In case any action or proceeding by brought against Lessee by
reason of any of the foregoing matters, Lessor, upon notice from Lessee,
shall defend the same at Lessor's expense by counsel reasonably satisfactory
to Lessee and Lessee shall cooperate with Lessor in such defense. Lessee need
not have first paid any such claim in order to be so indemnified.
Lessor shall notify Lessor in writing immediately upon discovering
any facts upon which Lessee may base a claim for indemnification
under this Paragraph.
PARAGRAPH 16.2 CONTINUED:
Notwithstanding anything else contained to the contrary in this
Lease, Lessee's obligation to provide financial statements shall be
specifically limited to the prior year's financial statements and its most
current financial statement. Lessee shall not be required to provide this
financial information more than twice during the term of the Lease.
PARAGRAPH 39.2 CONTINUED:
Notwithstanding anything else to the contrary contained herein,
Lessee shall have the right to assign this Lease to any affiliated company or
successor entity, and said affiliated company or successor entity shall have
the right to exercise any options granted under the terms of this Lease.
PARAGRAPH 49.
Lessor estimates that Lessee's expenses, reimbursable to Lessor,
are approximately $2,000.00 per month.
PARAGRAPH 50.
Lessor agrees to pay for, construct, install, repair or perform
the following, prior to the Lease Commencement Date:
a. All general building systems, such as the heating,
ventilating and air conditioning (HVAC),
electrical-systems, plumbing systems, hardware, locking
mechanisms, roll up doors, light bulbs, tubes and ballasts
and the like shall be repaired and in good working order
and capable of functioning in the manner for which they
were intended. Lessor shall not be responsible for
repairing any specialty equipment installed by Lessee.
Lessor, at Lessor's sole cost and expense, shall install a
standard phone line to the building.
-3-
b. The building shall be repaired and restored in a matter
that will enable it to be free from water intrusion from
leaks in the walls, roof, windows, floors and doors.
Existing water damage shall be repaired and replaced by
the Lessor. Lessee shall have no liability for repair
or replacement of any flooring within the Premises, which
flooring is damaged due to water intrusion into the
Premises, the cause of which was not Lessee's.
c With regard to the presence of Hazardous Substances or the
presence of toxics within the Building, Lessor agrees to:
(1) Remove all existing Hazardous Substances and toxics.
(2) All of the hoods, vents, ducting and piping
associated with the lab areas shall be removed,
with all penetrations properly repaired and patched.
(3) With regard to the "sump room" Lessor shall obtain a
closure report for that room. All equipment, drains,
and the like shall be removed and concrete shall be
poured over the opening in the floor so that the
floor is made level with the adjoining rooms. The
discharge drainage line in this room shall be
pressure tested to ensure that it did not leak.
Lessee shall have the right, at Lessee's cost, to
take core samples of the soil underneath this room
and have those soil samples tested to ensure that no
Hazardous Materials or toxic waste is found therein.
Lessor shall comply with all other requirements of
the County of San Mateo to obtain an appropriate
closure report.
(4) Lessor shall have obtained a final closure report
from the County of San Mateo, for the Premises.
x. Xxxxxx and Lessee agree that Lessee's maintenance
obligations with regard to the HVAC units, shall be
restricted to $4,800.00 per year. The cost of
maintaining or operating the HVAC units over and above
this amount shall be paid for by Lessor.
e. At the rear of the building there is a "chiller". The
chiller, all piping and equipment associated with it,
shall be removed and all holes patched and repaired by
Lessor.
x. Xxxxxx agrees to patch and repair all roof leaks prior to
the Lease Commencement Date, and to guarantee to repair
any roof leaks which manifests themselves during the
first six months of the Lease term.
x. Xxxxxx agrees to employ a structural engineer to review
the structural integrity of the roof system. The engineer
shall specifically investigate the condition of the hangars
used to support the roof framing members, many of which
are corroded and rusted. The integrity of the roof shall
be investigated, and repaired at the cost of Lessor. At
the time of this repair, the foil paper installed in the
ceiling shall be removed. Lessor agrees to install
insulation above the drop ceiling throughout the
-4-
Premises. Lessee shall have no liability for the repair or
replacement of any portion of the Premises as a result of
condensation damage to the building.
h. The soffit at the front of the building is not secure.
Lessor agrees to, secure the wooden members so that they
may not be removed to allow entry into the Premises.
i. At the back of the building, above the roll up door, is a fan.
Lessor shall remove the fan and patch and repair the hole.
x. Xxxxxx shall repair the exposed electrical wire to the
landscaping timer.
k. The fire sprinkler riser, at the front of the Building, is
set on an angle. Lessee shall have no liability
whatsoever for correcting this deficiency or for any
damage caused by its current condition.
x. Xxxxxx and Lessee acknowledge that the back parking lot
is prone to flooding. Currently, the parking lot is not
in good physical condition, due to recent and past
floods. Lessor agrees to repair this parking lot and
Lessee shall have no liability for its maintenance
throughout the term of this Lease except as to damage
specifically caused by Lessees.
m. At the front left corner of the building, there is a
downspout located near the electrical box for the
adjoining building. Lessee shall have no liability to
Lessor or to any other third parties as a result of this
configuration.
n. All cracks in the cinder block building material for
the exterior of the building, shall be repaired so that
they are water tight.
o. Currently, there is a sink located in one of the
janitor closets which is located next to an electric
water heater. Lessor agrees to relocate the electric water
heater to a safer location.
p. As of the Lease Commencement Date all fire sprinkler lines
and systems shall have been inspected and the five
year test performed. Any fire sprinkler lines which are
not properly supported by brackets, shall be supported in
accordance with applicable building codes.
q. At the front of the building, there is a disconnected
ground wire. This shall be used or removed as necessary by
Lessor.
r. Lessee shall have no liability for the repair of the glue xxx
beams in the building throughout the term of the Lease.
s. Notwithstanding anything else contained in this Lease to
the contrary, Lessee shall have no liability to
Lessor for upgrading the building for seismic safety
purposes, unless the seismic upgrade was required as a
result of the specific equipment installed within the
Premises by Lessee.
-5-
PARAGRAPH 51. OPTION TO RENEW.
Provided Tenant is not in material default under any of the
terms, covenants or condition of this Lease, and subject to the terms and
conditions set forth herein, Tenant is hereby granted the option to extend
this Lease for a period of three years:
(a) Tenant shall notify landlord in writing of Tenant's
exercise of this Option to extend this Lease on or before
November 1, 1999.
(b) The extended term of this Lease shall commence on March 1,
2000 and shall end on February 28, 2003 ("Extended Term").
(c) The monthly Basic Rent during the Extended Term
shall increase, annually, in accordance with the CPI
formula included herein. Nevertheless, the annual minimum
increase in Base Rent will be 2% and the maximum will
be 4%. The CPI formula will be as follows:
Consumer Price Index ("CPI") for all urban Consumers,
subgroup "All Items", San Francisco-Oakland, California
Xxxxxxxxxxxx Xxxx (0000-00 = 100) published by the
Bureau of Labor Statistics, U.S. Department of Labor
(the "Index") published nearest the first day of the month
twelve (12) months prior to the beginning date of the
Extended Term (the Beginning Index) and the Index which
is published nearest but prior to the first day of the
first Extended Term, and each and every anniversary
date of the Extended Term (the "Adjustment Index").
The "CPI" adjusted Basic Rent shall be calculated by
multiplying the Basic Rent by a fraction, the numerator
of which is the Adjustment Index and the denominator of
which is the Beginning Index. In no event, however,
shall the "CPI" adjusted Basic Rent decrease below the
Basic Rent of the Lease or any subsequent adjustment
thereof. If the Index is changed so that the Base Year of
the Index differs from that used as of the month
immediately preceding the month in which the term commences
the Index shall be convened in accordance with the
conversion factor published by the United States Department
of Labor, Bureau of Labor Statistics. If the
Index is discontinued or revised during the term, such
other government index or other computation with which it
is replaced shall be used in order to obtain substantially
the same result as would be obtained if the Index had not
been discontinued or revised.
PARAGRAPH 52. OPTION TO PURCHASE.
To and including Xxxxx 0, 0000, Xxxxxx shall have the option
to purchase all of the Lessor's rights, title and interest in and to the
Premises, on the following terms and conditions ("Option").
a. Lessor hereby grants Lessee the Option to purchase
the Premises as set forth herein. Attached hereto as
Exhibit B is a true and correct copy of a
Preliminary Title Report regarding the Premises issued by
First American Title Company. Lessee has approved title
exceptions ____________ of the Preliminary Title Report
and has rejected title exceptions _________. Lessee
agrees, should it
-6-
exercise the Option granted herein, to take title subject
to the approved title exceptions. The disapproved title
exceptions shall be eliminated prior to Lessee taking title
to the Property.
b. Lessee may exercise this Option only within the time
period set forth above. This right to purchase the
Premises may be exercised by Lessee, or any subsidiary or
entity controlled by Lessee.
c. If Lessee has not notified Lessor, in writing, of
Lessee's intent to exercise this Option to Purchase, on or
before March 1, 1999, then this Option shall
automatically terminate without any action on the part of
any party.
d. Lessee may exercise this Option, by notifying Lessor
of Lessee's intent, and by depositing a $10,000 check
into Escrow, with the Escrow Holder. The $10,000
shall be the "Initial Deposit" into Escrow, and shall
be applied to the Purchase Price. The Initial Deposit
shall be held in an interest bearing account, for the
benefit of Lessee.
e. The Escrow Holder shall be First American Title Company.
f. Each party to the Escrow shall be pay its normal and customary
fees as is customary in San Mateo County.
x. Xxxxxx shall convey the Premises to Lessee, free of any
liens or encumbrances, except for those approved conditions
of title as set forth in Paragraph 52.A. above, Lessor
shall convey the Premises to Lessee in an "as is" condition.
h. The term of the Escrow shall be for 120 days. During the
120 days, each party shall submit, to the Escrow
Holder, such documents and funds as is necessary to
transfer title to the property to Lessee. Lessee shall
deposit sufficient funds to pay for the Purchase Price and
its share of the Closing Costs. If requested by Lessor,
Lessee shall cooperate with a 1031 Tax Deferred Exchange,
or its equivalent, without increasing the period of the
time of escrow, increasing the liability of any kind to
Lessee, or increasing any cost to Lessee for having
agreed to do so.
i. Lessee shall have the right to purchase the Premises, for
the sum of $1,225,000 ("Purchase Price"). x. Xxxxxx and
Lessee each agree to sign any and all documents, as may be
reasonably required in order to bring to pass the
contemplated sales transaction. Each party agrees to act
in good faith and each party shall have all remedies
available to it, at law or equity, in the event of a
breach of this Agreement.
j. In the event Lessee fails to exercise this Option,
if specifically requested by Lessor, Lessee shall
execute, acknowledge and deliver to Lessor, a quit claim
deed or other reasonable document acknowledging that
this Option has terminated.
-7-
PARAGRAPH 53.
As additional security, for the payment of rent due under this
Lease, Lessee agrees to tender to Lessor, a standby letter of credit in the
face amount of Seventy Nine Thousand Five Hundred Sixty and No/100
Dollars . The term of this letter of credit shall be for one year. In the
event Lessee defaults in the payment of rent for more than 30 days, then
Lessor shall have the right to receive payment of the delinquent rent
from the letter of credit. The form of the letter of credit shall be
approved by Lessor and Lessee. A letter of credit shall be issued by a bank
reasonably acceptable to Lessor. The rights stated herein are in addition
to, and cumulative, with all of the rights and remedies that Lessor may
have under law or in equity, and/or under the terms of the Lease,
including without limitation the rights and remedies set out in Paragraph 13
of this Lease.
LESSORS: LESSEE:
DELTAGEN,
a Delaware Corporation
/s/ Xxxxxx X. Xxxx By /s/ Xxxxxxx Xxxxxxxx
----------------------------------- -----------------------------------
Xxxxxx X. Xxxx Its President
/s/ Xxxxx Xxxxxxx
-----------------------------------
Xxxxx Xxxxxxx
/s/ Xxxxxx X. Xxxxx
-----------------------------------
Xxxxxx X. Xxxxx
/s/ Xxxxxxxxx X. Xxxxx
-----------------------------------
Xxxxxxxxx X. Xxxxx
-8-
