Exhibit 10.9
MARINA VILLAGE
FULL SERVICE OFFICE LEASE
BASIC LEASE INFORMATION
Date: DECEMBER 1, 1998
Landlord: ALAMEDA REAL ESTATE INVESTMENTS,
a California limited partnership
Tenant: BIOMEDICINES, INC.
a Delaware corporation
LEASE REFERENCE
Premises and Building: Approximately 5,531 rentable square feet ("rsf") in 1301 Marina Paragraph 0
Xxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, XX 00000
Term Commencement: March 1, 1999 Paragraph 2
Term Expiration: February 28, 2004 Paragraph 2
Term: 5 years Paragraph 2
Base Rent: March 1, 1999 - February 28, 2000 $10,509/month
March 1, 2000 - February 28, 2001 $10,785/month
March 1, 2001 - February 28, 2002 $11,062/month
March 1, 2002 - February 28, 2003 $11,339/month
March 1, 2003 - February 28, 2004 $11,615/month
Tenant's Percentage Share: 5,531 rsf DIVIDED BY 84,384 rsf = 6.55% Paragraph 4(a)
Base year: 1999 Paragraph 4(a)
Use: General Office Paragraph 6
Security Deposit: $11,062 Paragraph 15
Xxxxxx's Address for Notices: UNTIL OCCUPANCY THEREAFTER Paragraph 19
000 Xxxxxx Xxxxxxx Xxxxxxx 0000 Xxxxxx
Xx. 000 Xxxxxxx Xxxxxxx
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Landlord's Address for Notices:
Alameda Real Estate Investments WITH A COPY TO:
c/o Vintage Properties Marina Village
000 Xxxxxx Xxxxxx, Xxxxx 000 0000 Xxxxxx Xxxxxxx Xxxx., Xxxxx 000
Xxxx Xxxx, XX 00000 Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx Attn: Property Manager
1
LEASE REFERENCE
Exhibit(s) and Addendum(s): Paragraph 22
Exhibit A: Diagram of leased Premises
Exhibit B: Initial Improvement of the Premises
Exhibit C: Space Plan and Outline Specifications
Addendum to Office Lease
The provisions of the Lease identified above in the margin are those provisions
where references to particular Basic Lease Information appear. Each such
reference shall incorporate the applicable Basic Lease Information. In the event
of any conflict between any Basic Lease Information and the Lease, the latter
shall control.
TENANT: LANDLORD:
BIOMEDICINES, INC. ALAMEDA REAL ESTATE INVESTMENTS,
a Delaware Corporation a California limited partnership
By: Vintage Alameda Investments, LP
a California limited partnership,
operating general partner
By: Vintage Properties - Alameda Commercial,
a California corporation,
Managing general partner
By: By:
------------------------------- ---------------------------------
Title: Title:
---------------------------- ------------------------------
2
MARINA VILLAGE
FULL SERVICE
OFFICE LEASE
THIS LEASE, dated as of DECEMBER 1, 1998, for purposes of reference only, is
made and entered into by and between ALAMEDA REAL ESTATE INVESTMENTS, a
California limited partnership ("Landlord"), and BIOMEDICINES, INC., a Delaware
corporation ("Tenant").
WITNESSETH
(SEE ADDENDUM TO LEASE)
1. PREMISES. Landlord hereby leases to Tenant, and Tenant hereby leases
from Landlord for the term of this Lease and at the rental and upon the
conditions set forth below, the premises described in the Basic Lease
Information and identified on the diagram attached hereto as Exhibit A.
Landlord and Tenant agree that the amount of rentable square feet as
set forth in the Basic Lease Information or, if such amount is an
approximation, the final rentable square feet as determined upon
completion of working drawings, shall be binding and conclusive for all
purposes of this Lease. Subject to any obligations of Landlord as set
forth in an exhibit to this Lease relating to initial improvement of
the premises, Tenant shall accept the premises in its "as-is" condition
at the commencement of the term. The premises are located within the
building (the "Building") commonly known as described in the Basic
Lease Information.
2. TERM.
a. The term of this Lease shall commence and, unless sooner terminated
as hereinafter provided, shall end on the dates respectively specified
in the Basic Lease Information. If Landlord, for any reason whatsoever,
cannot deliver possession of the premises to Tenant at the commencement
of the term, this Lease shall not be void or voidable, nor shall
Landlord be liable to Tenant for any loss or damage resulting
therefrom, but in that event, subject to any contrary provisions in any
agreement with Landlord related to the initial improvement of the
premises, rental shall be waived for the period between commencement of
the term and the time when Landlord can deliver possession. If, for any
reason beyond Landlord's reasonable control, Landlord is unable to
obtain necessary governmental approvals to complete and deliver
possession of the premises to Tenant, then Landlord may, upon notice to
Tenant, terminate this Lease and both parties shall be relieved of any
and all obligations hereunder.
(SEE ADDENDUM TO LEASE)
b. Prior to the commencement of the term, Landlord shall complete the
Tenant Improvements to be constructed or installed in the premises
pursuant to Exhibit B attached hereto. The Tenant Improvements shall be
deemed completed and possession of the premises delivered when Landlord
has substantially completed the Tenant Improvements, subject only to
the completion of minor items which do not materially impair the
usability of
1.
the Tenant Improvements by Tenant, and Tenant shall accept the premises
upon notice from Landlord that the Tenant Improvements have been so
completed.
3. RENT.
(SEE ADDENDUM TO LEASE)
a. Tenant shall pay to Landlord as rental the amount specified in the
Basic Lease Information as the Base Rent, payable in advance on the
commencement of the term and on or before the first day of each and
every successive calendar month during the term. If the term commences
on other than the first day of a calendar month, the first payment of
rent shall be appropriately prorated on the basis of a 30-day month.
The anniversary date for rental increases as set forth in the Basic
Lease Information shall be the first calendar day of the month in which
the Lease term commenced. If the last day of the term falls on a date
other than the last day of the month, then the term shall be extended
so that the last day of the term shall be the last calendar day of the
month in which the term would otherwise end.
b. Tenant shall pay, as additional rent, all amounts of money required
to be paid to Landlord by Tenant under this Lease in addition to
monthly rent, whether or not the same be designated "additional rent."
If such amounts are not paid at the time provided ill this Lease, they
shall nevertheless be a collectable as additional rent with the next
installment of monthly rent thereafter failing due, but nothing herein
contained shall be deemed to suspend or delay the payment of any amount
of money at the time the same becomes due and payable hereunder, or
limit any other remedy of Landlord.
c. Tenant hereby acknowledges that late payment by the Tenant to
Landlord of rent and other amounts due hereunder will cause Landlord to
incur costs not contemplated by this Lease, the exact amount of which
will be extremely difficult to ascertain. Such costs include, but are
not limited to, processing and accounting charges, and late charges
which may be imposed on Landlord by the terms of any trust deed
covering the premises. Accordingly, if any installments of rent or any
other sums due from Tenant shall not be received by Landlord when due,
then Tenant shall pay to Landlord a late charge equal to six percent
(6%) of such overdue amount. The parties hereby agree that such late
charges represent a fair and reasonable estimate of the costs Landlord
will incur by reason of late payment by Xxxxxx. Acceptance of such
late charge by Landlord shall in no event constitute a waiver of
Tenant's default with respect to such overdue amount, nor prevent
Landlord from exercising any of the other rights and remedies granted
hereunder.
d. Any amount due to Landlord, if not paid when due, shall bear
interest from the date due until the date paid at the rate of ten
percent (10%) per annum or, if a higher rate is legally permissible, at
the highest rate legally permitted, provided that interest shall not be
payable on late charges incurred by Tenant nor on any amounts upon
which late charges are paid by Tenant to the extent such interest would
cause the total interest to be in excess of that legally permitted.
Payment of interest shall not excuse or cure any default hereunder by
Xxxxxx.
e. All payments due from Tenant to Landlord hereunder shall be made to
Landlord without deduction or offset ill lawful money of the United
States of America at Landlord's
2.
address for notices hereunder, or to such other person or at such other
place as Landlord may from time to time designate in writing to Tenant.
4. TAXES AND OPERATING EXPENSES.
(SEE ADDENDUM TO LEASE)
a. For each calendar year during the term after the year specified in
the Basic Lease Information as the Base Year, Tenant shall pay its
percentage share, as specified in the Basic Lease Information, of the
increase in Property Taxes over Base Property Taxes and its percentage
share of the increase in Operating Expenses for such calendar year over
Base Operating Expenses. For the purposes hereof, "Property Taxes"
shall mean all real property taxes and assessments or governmentally
imposed fees or charges (and any tax levied wholly or partly in lieu
thereof) levied, assessed, confirmed, imposed or which have become a
lien against the Building (which for the purposes of defining "Property
Taxes" shall include the land underlying the Building), and "Operating
Expenses" shall mean: (1) all costs of management, operation,
maintenance, and repair of the Building, (2) the cost of all insurance
maintained by Landlord with respect to the Building and (3) the share
allocable to the Building of dues and assessments payable under any
reciprocal easement or common area maintenance agreements or
declaration or by any owners' associations affecting the Building.
"Base Property Taxes" shall mean those Property Taxes payable during
the fiscal year ending in June of the Base Year and "Base Operating
Expenses" shall mean Operating Expenses incurred by Landlord during the
Base Year. Operating Expenses for both the Base Year and each
subsequent calendar year shall be adjusted to equal Landlord's
reasonable estimate of Operating Expenses had the total rentable area
of the Building been 95% occupied.
b. In the event the Building is not separately assessed for tax
purposes, then the Property Taxes to be paid by Tenant shall be
Tenant's percentage share of the product obtained by multiplying the
total of the real property taxes and assessments levied against the tax
parcel of which the Building is a part by a fraction, the numerator of
which is the rentable area of the Building and the denominator of
which is total rentable area of all improvements located within the tax
parcel of which the Building is a part.
c. Tenant shall pay to Landlord each month at the same time and in the
same manner as monthly rent 1/12th of Landlord's reasonable estimate of
the increase in Properly Taxes and Operating Expenses from Base
Property Taxes and Base Operating Expenses from the then current
calendar year. Within 90 days after the close of each calendar year, or
as soon after such 90-day period as practicable, Landlord shall deliver
to Tenant a statement of actual Property Taxes and Operating Expenses
for such calendar year. Promptly following Xxxxxx's request, but not
more frequently than once each calendar year, Landlord shall provide
back-up documentation to Tenant supporting Landlord's calculation of
actual Property Taxes and Operating Expenses. If on the basis of such
statement Tenant owes an amount that is less than the estimated
payments for such calendar year previously made by Tenant, Landlord
shall refund such excess to Tenant. If on the basis of such statement
Tenant owes an amount that is more than the estimated payments for such
calendar year previously made by Tenant, Tenant shall pay the
deficiency to Landlord within 30 days after delivery of the statement
together with interest as provided in Section 3(d). The obligations
3.
of Landlord and Tenant under this subparagraph with respect to the
reconciliation between estimated payments and actual Property Taxes and
Operating Expenses for the last year of the term shall survive the
termination of the Lease.
5. OTHER TAXES. Tenant shall pay or reimburse Landlord for any taxes
upon, measured by or reasonably attributable to the cost or value
of Tenant's equipment, furniture, fixtures, and other personal
property located in the premises or leasehold improvements made in
or to the premises at Tenant's expense; for any taxes, if any,
measured by or reasonably attributable to Tenant Improvements paid
for by Landlord or Tenant in excess of $30.00 per square foot; for
any taxes, assessments, fees, or charges imposed by any public
authority or private community maintenance association upon or by
reason of the development, possession, use or occupancy of the
premises or the parking facilities used by Tenant in connection with
the premises; and for any gross receipts tax imposed with respect to
the rental payable hereunder.
(SEE ADDENDUM TO LEASE)
6. USE.
a. The premises shall be used and occupied by Tenant solely for the use
set forth in the Basic Lease Information. Tenant shall, at Tenant's
expense, comply promptly with all applicable statutes, ordinances,
rules, regulations, orders, and requirements in effect during the term
regulating Tenant's activities or the use by Tenant of the premises.
Tenant shall not use or permit the use of the premises in any manner
that will tend to create waste or a nuisance, or which shall tend
unreasonably to disturb other tenants of the Building or adjacent
buildings, nor shall Tenant place or maintain any signs on or visible
from the exterior of the premises without Landlord's written consent,
or use any corridors, sidewalks, or other areas outside of the premises
for storage or any purpose other than access to the premises. Except as
provided in paragraph 6(b) below, Tenant shall not use, keep, or permit
to be used or kept on the premises any foul or noxious gas or
substance, nor shall Tenant do or permit to be done anything in and
about the premises, either in connection with activities hereunder
expressly permitted or otherwise, which would cause a cancellation of
any policy of insurance (including fire insurance) maintained by
Landlord in connection with the premises or the Building or which would
violate the terms of any covenants, conditions, or restrictions
affecting the Building or the land on which it is located.
(SEE ADDENDUM TO LEASE)
b. Tenant shall strictly comply with I statutes, laws. ordinances,
rules, regulations, and precautions now or hereafter mandated or
advised by any federal, state, local or other governmental agency with
respect to the use, generation, storage, or disposal of hazardous,
toxic, or radioactive materials (collectively, "Hazardous Materials").
As herein used, Hazardous Materials shall include, but not be limited
to, those materials identified in Sections 66680 through 66685 of Title
22 of the California Code of Regulations, Division 4, Chapter 30, as
amended from time to time, and those substances defined as "hazardous
substances," "hazardous materials," "hazardous wastes," "chemicals
known to cause cancer or reproductive toxicity," "radioactive
materials," or other similar designations in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as
4.
amended, 42 U.S.C. Section 9601 et seq., the Resource Conservation and
Recovery Act, 42 U.S.C. Section 6901 et seq., the Hazardous Materials
Transportation Act, 49 U.S.C. Section 1801 et seq., 33 U.S.C. Section
1251 et seq., 42 U.S.C. Section 300(f) et seq., 42 U.S.C. 7401 et seq.,
California Health and Safety code Section 25249.5 et seq., California
Water Code Section 13000 et seq., California Health and Safety Code
Section 39000 et seq. and any other governmental statutes, ordinances,
rules, regulations, and precautions adopted pursuant to the preceding
laws or other similar laws, regulations and guidelines now or hereafter
in effect. Tenant shall not cause, or allow its employees, agents or
invitees to cause, any Hazardous Materials to be used, generated,
stored, or disposed of on or about the premises or the Building other
than reasonable quantities of office and cleaning supplies in their
retail containers. Tenant shall defend (with counsel approved by
Landlord), indemnify and hold Landlord, its trustees, employees and
agents, any entity having a security interest in the premises or the
Building, and its and their employees and agents (collectively,
"Indemnities") harmless from and against, and reimburse the Indemnities
for, all liabilities, claims, costs, damages, and depreciation of
property value, including all foreseeable and unforeseeable
consequential damages, directly or indirectly arising out of the use,
generation, storage, or disposal of Hazardous Materials by Tenant or
any person claiming under Tenant, including, without limitation, the
cost of any required or necessary investigation, monitoring, repair,
cleanup, or detoxification and the preparation of any closure or other
required plans, whether such action is required or necessary prior to
or following the termination of this Lease, as well as penalties, fines
and claims for contribution to the full extent that such action is
attributable, directly or indirectly, to the use, generation, storage,
or disposal of Hazardous Materials by Tenant or any person claiming
under Tenant. Neither the consent by Landlord to the use, generation,
storage, or disposal of Hazardous Materials nor the strict compliance
by Tenant with all statutes, laws, ordinances, rules, regulations, and
precautions pertaining to Hazardous Materials shall excuse Tenant from
Tenant's obligation of indemnification set forth above. Tenant's
obligations under this paragraph 6 shall survive the expiration or
termination of this Lease.
7. SERVICES.
Landlord shall furnish the premises with electricity for lighting and
the operation of office machines, heat, ventilating and air
conditioning, elevator service, lighting replacement for building
standard fixtures, restroom supplies, window washing with reasonable
frequency, and daily janitorial service on normal business days. Normal
Business days for the Building shall include Monday through Friday
excluding the following holidays: New Years Day, Presidents Day,
Memorial Day, Independence Day, Labor Day, Thanksgiving and Christmas.
Landlord shall not be in default hereunder or be liable for any damages
directly or indirectly resulting from, nor shall the rental herein
reserved be abated by reason of (i) the installation, use or
interruption of use of any equipment in connection with the furnishing
of any of the foregoing services, (ii) failure to furnish or delay in
furnishing any such services, or (iii) the limitation, curtailment,
rationing or restrictions on use of water, electricity, gas or any
other form of energy serving the premises. Tenant shall reimburse
Landlord for the cost of providing heat, air conditioning and utility
services in excess of that required for normal office use or during
other than usual business hours for the Building of 8:00 a.m. to 6:00
p.m. as well as the cost of providing power for other than normal
desk-top office equipment.
5.
8. MAINTENANCE, REPAIRS AND ALTERATIONS.
a. Subject to the provisions of paragraph 10 below, and except for
damages caused by Tenant, its agents or invitees, Landlord shall keep
in good condition and repair the foundations and exterior walls and
roof (structural and membrane) of the Building, rough plumbing and
electrical utilities, and all common areas within the Building not
leased to tenants. Tenant expressly waives the benefits of any statute
which would otherwise afford Tenant the right to make repairs at
Landlord's expense or to terminate this Lease because of Landlord's
failure to keep the premises or the Building in good order, condition,
and repair.
b. Tenant shall, at Tenant's expense, maintain the interior portion of
the premises (including, but not limited to, finished plumbing and
electrical and lightbulbs) in good condition and repair. If Tenant
fails to do so, Landlord may, but shall not be required to, enter the
premises and put them in the same condition as upon the commencement of
the Lease term, and Landlord's out-of-pocket costs thereof shall
automatically become due and payable as additional rent. At the
expiration of the term Tenant shall deliver up possession of the
premises in the same condition received, only ordinary wear and tear
and casualty and condemnation excepted.
c. Tenant shall not, without Xxxxxxxx's prior consent, make any
alterations, improvements, or additions in or about the premises. In
requesting Xxxxxxxx's consent, Tenant shall submit to Landlord complete
drawings and specifications describing such work and the identity of
the proposed contractor. As a condition to giving such consent,
Landlord may, among other things, require that Tenant remove any such
alterations, improvements or additions at the expiration of the term,
and restore the premises to their prior condition. Before commencing
any work relating to alterations, additions, or improvements affecting
the premises, Tenant shall notify Landlord of the expected date of
commencement thereof and of the anticipated cost thereof, and shall
furnish such information as shall reasonably be requested by Landlord
substantiating Tenant's ability to pay for such work. Landlord shall
then have the right at any time and from time to time to post and
maintain on the premises such notices as Landlord reasonably deems
necessary to protect the premises and Landlord from mechanics' liens or
any other liens. Tenant shall not permit any mechanics' liens to be
levied against the premises for any labor or materials furnished to
Tenant or claimed to have been furnished to Tenant or to Tenant's
agents or contractors in connection with work of any character
performed or claimed to have been performed on the premises by or at
the direction of Tenant. All alterations, improvements, or additions in
or about the premises performed by or on behalf of Tenant shall be done
in a first-class, workmanlike manner, shall not unreasonably lessen the
value of the leasehold improvements in the premises, and shall be
completed in compliance with all applicable laws, ordinances,
regulations, and orders of any governmental authority having
jurisdiction there over, as well as the requirements of insurers of the
premises and the Building. Upon Landlord's request, Tenant shall remove
any contractor, subcontractor, or material supplier (who is present at
the request of Tenant) from the premises and the Building if the work-
or presence of such person or entity results in labor disputes in or
about the Building or the Marina Village Project, or damage to the
premises, Building or Project. Unless Landlord requires their removal
as set forth above, all alterations, improvements or additions which
may be made on the premises shall become the property of Landlord and
remain upon and be surrendered with the premises at the expiration
6.
of the term; provided, however, that Tenant's machinery, equipment and
trade fixtures, other than any which may be affixed to the premises so
that they cannot be removed without material damage to the premises,
shall remain the property of Tenant and may be removed by Tenant
provided further Tenant shall be responsible for repairing all damage
to the premises caused by such removal.
9. INSURANCE AND INDEMNITY.
a. Tenant shall obtain and maintain during the term of this Lease
commercial general liability insurance with combined single limit for
personal injury and property damage in a form and with carriers
acceptable to Landlord in an amount not less than $1,000,000, and
employees liability and workers' compensation insurance as required by
law. Tenant's commercial general liability insurance policy shall be
endorsed to provide that (i) it may not be canceled or altered in such
a manner as adversely to affect the coverage afforded thereby without
30 days' prior written notice to Landlord, (ii) Landlord is named as
additional insured, (iii) the insurer acknowledges acceptance of the
mutual waiver of claims by Landlord and Tenant pursuant to subparagraph
(b) below, and (iv) such insurance is primary with respect to Landlord
and that any other insurance maintained by Landlord is excess and
noncontributing with such insurance. If, in the opinion of Xxxxxxxx's
insurance adviser, based on a substantial increase in recovered
liability claims generally, the specified amounts of coverage are no
longer adequate, such coverage shall be appropriately increased. Prior
to the commencement of the term, Tenant shall deliver to Landlord a
duplicate of such policy or a certificate thereof to Landlord for
retention by it, with endorsements, and at least 30 days prior to the
expiration of such policy or any renewal thereof, Tenant shall deliver
to Landlord a replacement or renewal binder, followed by duplicate
policy or certificate within a reasonable time thereafter. If Tenant
fails to obtain such insurance or to furnish Landlord any such
duplicate policy or certificate as herein required, Landlord may, at
its election, without notice to Tenant and without any obligation to do
so, procure and maintain such coverage and Tenant shall reimburse
Landlord on demand as additional rent for any premium so paid by
Landlord.
b. Landlord hereby waives all claims against Tenant, and Xxxxxx's
officers, directors, partners, employees, agents and representatives
for loss or damage to the extent that such loss or damage is insured
against under any valid and collectible insurance policy insuring
Landlord or would have been insured against but for any deductible
amount under any such policy, and Tenant waives all claims against
Landlord including Landlord's officers, directors, partners, employees,
agents, and representatives for loss or damage to the extent such loss
or damage is insured against under any valid and collectible insurance
policy insuring Tenant or required to be maintained by Tenant under
this Lease, or would have been insured against but for any deductible
amount under any such policy.
c. As this Lease does not involve the public interest and insurance is
available to Tenant which will protect it against such claims, damage,
injury or death, Tenant hereby waives all claims against Landlord for
damage to any property or injury to or death of any person in, upon or
about the premises or the Building arising at any time and from any
cause. Tenant shall hold Landlord harmless from and defend Landlord
against all claims (except such as arises from the sole negligence or
willful misconduct of Landlord, its agents, employees or
7.
contractors) (i) for damage to any property or injury to or death of
any person arising from the use of the premises by Xxxxxx, or (ii)
arising from the negligence or willful misconduct of Tenant, its
employees, agents, or contractors in, upon or about those portions of
the Building other than the premises. The foregoing indemnity
obligation of Tenant shall include reasonable attorneys' fees,
investigation costs, and all other reasonable costs and expenses
incurred by Landlord from the first notice that any claim or demand is
to be made or may be made. The provisions of this paragraph 9 shall
survive the termination of this Lease with respect to any damage,
injury, or death occurring prior to such termination.
10. DAMAGE OR DESTRUCTION.
(SEE ADDENDUM TO LEASE)
a. If during the term the premises are totally or partially destroyed,
or any other portion of the Building is damaged in such a way that
Tenant's use of the premises is materially interfered with, from a risk
which is wholly covered by insurance, then subject to the availability
of insurance proceeds Landlord shall proceed with reasonable diligence
to repair the damage or destruction and this Lease shall not be
terminated; provided, however, that if in the opinion of Xxxxxxxx's
architect the work of repair cannot be completed in 90 days Landlord
may at its election terminate the Lease by notice given to Tenant.
b. If during the term the premises are totally or partially destroyed,
or any other portion of the Building is damaged in such a way that
Tenant's use of the premises is materially interfered with, from a risk
which is not wholly covered by insurance, Landlord may at its election
by notice given to Tenant restore the premises or terminate this Lease.
c. In case of destruction or damage which materially interferes with
Xxxxxx's use of the premises, if this Lease is not terminated as above
provided, rent shall be abated during the period required for the work
of repair based upon the degree of interference with Xxxxxx's use of
the premises. Except for abatement of rent, Tenant shall have no claim
against Landlord for any loss suffered by Tenant due to damage or
destruction of the premises or any work of repair undertaken as herein
provided. Tenant expressly waives the provisions of Sections 1932 and
1933(4) of the California Civil Code.
(SEE ADDENDUM TO LEASE)
11. EMINENT DOMAIN. If all or any part of the premises shall be taken as a
result of the exercise of power of eminent domain, this Lease shall
terminate as to the part so taken as of the date of taking, and in the
case of a partial taking, either Landlord or Tenant shall have the
right to terminate this Lease as to the balance of the premises by
notice to the other within thirty (30) days after such date if the
portion of the premises taken shall be of such extent and nature as
substantially to handicap, impede or impair Tenant's use of the balance
of the premises for Tenant's purposes. In the event of any taking,
Landlord shall be entitled to any and all compensation, damages,
income, rent, awards, or any interest therein whatsoever which may be
paid or made in connection therewith, and Tenant shall have no claim
against Landlord for the value of any unexpired term of this Lease or
otherwise. In the event of a partial taking of
8.
the premises which does not result in a termination of this Lease, the
monthly rental thereafter to be paid shall be equitably reduced on a
square footage basis.
12. ASSIGNMENT AND SUBLETTING.
(SEE ADDENDUM TO LEASE)
a. Tenant shall not assign this Lease or any interest herein or sublet
the premises or any part thereof without the prior consent of Landlord,
which consent shall not be unreasonably withheld; Tenant shall not
hypothecate this Lease or any interest herein or permit the use of the
premises by any party other than Tenant without the prior consent of
Landlord, which consent may be withheld by Landlord in its absolute
discretion. This Lease shall not, nor shall any interest herein, be
assignable as to the interest of Tenant by operation of law without the
consent of Landlord. Any of the foregoing acts without such consent
shall be void and shall, at the option of Landlord, terminate this
Lease. In connection with each consent requested by Xxxxxx, Xxxxxx
shall submit to Landlord the terms of the proposed transaction, the
identity of the parties to the transaction, the proposed documentation
for the transaction, current financial statements of any proposed
assignee or sublessee and all other information reasonably requested by
Xxxxxxxx concerning the proposed transaction and the parties involved
therein.
b. Without limiting the other instances in which it may be reasonable
for Landlord to withhold its consent to an assignment or subletting,
Landlord and Tenant acknowledge that it shall be reasonable for
Landlord to withhold its consent in the following instances:
1. if the proposed assignee or sublessee is a governmental
agency;
2. if, in Landlord's reasonable judgment, the use of the
premises by the proposed assignee or sublessee would entail
any alterations which would lessen the value of the leasehold
improvements in the premises, or would require increased
services by Landlord;
3. if, in Landlord's reasonable judgment, the financial worth
of the proposed assignee or sublessee does not meet the credit
standards applied by Landlord for other tenants under leases
with comparable terms, or the character, reputation or
business of the proposed assignee or sublessee is not
consistent with the quality of the other tenancies in the
Building;
4. in the case of a subletting of less than the entire
premises, if the subletting would result in the division of
the premises into more than two subparcels, would create a
subparcel of a configuration that is not suitable for normal
leasing purposes, or would require access to be provided
through space leased or held for lease to another tenant or
improvements to be made outside of the premises; or
5. if, at the time consent is requested or at any time prior
to the granting of consent, Tenant is in default under the
Lease or would be in default under the Lease but for the
pendency of any grace or cure period under paragraph 13 below.
9.
c. If at any time or from time to time during the term of this Lease
Tenant desires to sublet all or any part of the premises, Tenant shall
give notice to Landlord setting forth the terms of the proposed
subletting and the space so proposed to be sublet. Landlord shall have
the option, exercisable by notice given to Tenant within 20 days after
Xxxxxx's notice is given, either to sublet from Tenant such space at
the rental and other terms set forth in Tenant's notice, or, if the
proposed subletting is for the entire premises for a sublet term ending
within the last year of the term of this Lease, to terminate this
Lease. If Landlord does not exercise such option, Tenant shall be free
to sublet such space to any third party on the same terms set forth in
the notice given to Landlord, subject to obtaining Landlord's prior
consent as herein above provided.
d. As used in this paragraph 12, the term "assign" or "assignment"
shall include, without limitation, any sale, transfer, or other
disposition of all or any position of Tenant's estate under this Lease,
whether voluntary or involuntary, and whether by operation of law or
otherwise including any of the following:
1. If Tenant is a corporation: (i) any dissolution, merger,
consolidation, or other reorganization of Tenant or (ii) a
sale of more than 50% of the value of the assets of Tenant or
(iii) if Tenant is a corporation with fewer than 500
shareholders, sale or other transfer of a controlling
percentage of the capital stock of Tenant. The phrase
"controlling percentage" means the ownership of, and the right
to vote, stocks possessing at least 50% of the total combined
voting power of all classes of Tenant's stock issues,
outstanding and permitted to vote for the election of
directors;
2. If Tenant is a trust the transfer of more than 50% of the
beneficial interest of Tenant, or the dissolution of the
trust;
3. If Tenant is a partnership or joint venture, the
withdrawal, or the transfer of the interest of any general
partner or joint venturer or the dissolution of the
partnership or joint venture;
4. If Tenant is composed of tenants-in-common, the transfer of
interest of any co-tenants or the partition or dissolution of
the cotenancy.
e. No sublessee (other than Landlord if it exercises its option
pursuant to subparagraph (c) above) shall have a right further to
sublet, and any assignment by a sublessee of its sublease shall be
subject to Landlord's prior consent in the same manner as if Tenant
were entering into a new sublease.
f. In the case of an assignment, one half of all sums or other economic
consideration received by Xxxxxx as a result of such assignment shall
be paid to Landlord. In the event such consideration is received by
Tenant in installments, the portion of each installment to be paid to
Landlord shall be determined by multiplying the installment by a
fraction, the numerator of which is the total amount of the foregoing
permitted deductions and the denominator of which is the total
consideration receivable by Tenant as a result of such assignment.
10.
g. In the case of a subletting, one half of all sums or economic
consideration received by Tenant as a result of such subletting shall
be paid to Landlord after first deducting (i) the rental due hereunder,
prorated to reflect only rental allocable to the sublet portion of the
premises, (ii) the cost of leasehold improvements made to the sublet
portion of the premises at Tenant's cost, amortized over the term of
this Lease except for leasehold improvements made for the specific
benefit of the sublessee, which shall be amortized over the term of the
sublease, and (iii) the cost of any real estate commissions incurred in
connection with such subletting, amortized over the term of the
sublease.
h. Regardless of Landlord's consent, no subletting or assignment shall
release Tenant of Tenant's obligation or alter the primary liability of
Tenant to pay the rental and to perform all other obligations to be
performed by Tenant hereunder. The acceptance of rental by Landlord
from any other person shall not be deemed to be a waiver by Landlord of
any provision hereof. Consent to one assignment or subletting shall not
be deemed consent to any subsequent assignment or subletting. In the
event of default by any assignee of Tenant or any successor or Tenant
in the performance of any of the terms hereof, Landlord may proceed
directly against Tenant without the necessity of exhausting remedies
against such assignee or successor. Landlord may consent to subsequent
assignments or subletting of this Lease or amendments or modifications
to this Lease with assignees of Tenant, without notifying Tenant, or
any successor of Tenant, and without obtaining its or their consent
thereto and such action shall not relieve Tenant of liability under
this Lease.
i. In the event Tenant shall assign or sublet the premises or request
the consent of Landlord to any assignment or subletting or if Tenant
shall request the consent of Landlord for any act that Tenant proposes
to do, then Tenant shall pay Landlord's reasonable attorneys' fees
incurred in connection therewith.
13. DEFAULT BY TENANT.
a. The following events shall constitute events of default under this
Lease:
1. a default by Xxxxxx in the payment of any rent or other sum
payable hereunder for a period of 3 business days after notice
of delinquency;
2. a default by Tenant in the performance of any of the other
terms, covenants, agreements, or conditions contained herein
and, if the default is curable, the continuation of such
default for a period of 10 days after notice by Landlord or
beyond the time reasonably necessary for cure if the default
is of the nature to require more than 10 days to remedy,
provided that if Tenant has previously defaulted in the
performance of the same obligation one or more times in any
twelve-month period and notice of such default has been given
by Landlord in each instance, no cure period shall thereafter
be applicable hereunder;
3. the bankruptcy or insolvency of Tenant, any transfer by
Xxxxxx in fraud of creditors, assignment by Tenant for the
benefit of creditors, or the commencement of any proceedings
of any kind by or against Tenant under any provision of the
Federal Bankruptcy Act or under any other insolvency,
bankruptcy or reorganization act
11.
unless, in the event any such proceedings are involuntary,
Xxxxxx is discharged from the same within 60 days thereafter;
the appointment of a receiver for a substantial part of the
assets of Tenant; or the levy upon this Lease or any estate of
Tenant hereunder by any attachment or execution; and
4. the abandonment of the premises.
b. Upon the occurrence of any event of default by Tenant hereunder,
Landlord may, at its option and without any further notice or demand,
in addition to any other rights and remedies given hereunder or by law,
do any of the following:
1. Landlord shall have the right, so long as such default
continues, to give notice of termination to Tenant, and on the
date specified in such notice this Lease shall terminate.
2. In the event of any such termination of this Lease,
Landlord may then or at any time thereafter, reenter the
premises and remove therefrom all persons and property and
again repossess and enjoy the premises, without prejudice to
any other remedies that Landlord may have by reason of
Tenant's default or of such termination.
3. In the event of any such termination of this Lease, and in
addition to any other rights and remedies Landlord may have,
Landlord shall have all of the rights and remedies of a
landlord provided by Section 1951.2 of the California Civil
Code. The amount of damages which Landlord may recover in
event of such termination shall include, without limitation,
(i) the worth at the time of award (computed by discounting
such amount at the discount rate of the Federal Reserve Bank
of San Francisco at the time of award plus one percent) of the
amount by which the unpaid rent for balance of the term after
the time of award exceeds the amount of rental loss that
Tenant proves could be reasonably avoided, (ii) all reasonable
legal expenses and other related costs incurred by Landlord
following Tenant's default, (iii) all out-of-pocket costs
incurred by Landlord in restoring the premises to the same
condition as existed on the Commencement Date, or in
remodeling, renovating or otherwise preparing the premises for
reletting, and (iv) all costs (including, without limitation,
any standard brokerage commissions) incurred by Landlord in
reletting the premises.
4. For the purpose of determining the unpaid rent in the event
of a termination of this Lease, or the rent due hereunder in
the event of a reletting of the premises, the monthly rent
reserved in this Lease shall be deemed to be the sum of the
rental due under paragraph 3 above and the amounts last
payable by Tenant pursuant to paragraph 4 above.
5. After terminating this Lease, Landlord may remove any and
all personal property located in the premises and place such
property in a public or private warehouse or elsewhere at the
sole cost and expense of Tenant.
c. Even though Xxxxxx has breached this Lease and abandoned the
premises, this Lease shall continue in effect for so long as Landlord
does not terminate Tenant's right to possession, and Landlord may
enforce all its rights and remedies under this Lease, including
12.
the right to recover rental as it becomes due under this Lease. Acts
of maintenance or preservation, efforts to relet the premises, or the
appointment of a receiver upon initiative of Landlord to protect
Xxxxxxxx's interest under this Lease, shall not constitute a
termination of Tenant's right to possession.
d. The remedies provided for in this Lease are in addition to any other
remedies available to Landlord at law or in equity, by statute or
otherwise.
14. DEFAULT BY LANDLORD. Landlord shall not be in default unless Landlord
fails to perform obligations required of Landlord hereunder within a
reasonable time, but in no event later than 30 days after notice by
Tenant to Landlord specifying wherein Landlord has failed to perform
such obligation; provided, however, that if the nature of Landlord's
obligation is such that more than 30 days are required for performance,
then Landlord shall not be in default if Landlord commences performance
within such 30 day period and thereafter diligently prosecutes the same
to completion.
(SEE ADDENDUM TO LEASE)
15. SECURITY DEPOSIT. On execution of this Lease Tenant shall deposit with
Landlord the sum specified in the Basic Lease Information (the
"Deposit"). The Deposit, together with any increases required as set
forth in the Addendum, shall be held by Landlord is security for the
performance by Tenant of all of the provisions of this Lease. If Tenant
fails to pay rent or other charges due hereunder, or otherwise defaults
with respect to any provisions of this Lease, Landlord may use, apply,
or retain all or any portion of the Deposit for the payment of any rent
or other charge in default, or the payment of any other sum to which
Landlord may become obligated by reason of Tenant's default or to
compensate Landlord for any loss or damage which Landlord may suffer
thereby. If Landlord so uses or applies all or any portion of the
Deposit, then within 10 days after demand therefor Tenant shall Deposit
cash with Landlord in an amount sufficient to restore the Deposit to
the full amount thereof, and Xxxxxx's failure to do so shall be a
material breach of this Lease. Landlord shall not be required to keep
the Deposit separate from its general accounts. If Xxxxxx performs all
of Tenant's obligations hereunder, the Deposit, or so much thereof as
has not theretofore been applied by Landlord, shall be returned,
without payment of interest for its use, to Tenant (or, at Landlord's
option, to the last assignee, if any, of Xxxxxx's interest hereunder)
at the expiration of the term hereof, and after Xxxxxx has vacated the
premises. No trust relationship is created herein between Landlord and
Tenant with respect to the Deposit.
16. ESTOPPEL CERTIFICATE.
a. Tenant shall at any time upon not more than 10 days' prior notice
from Landlord execute, acknowledge and deliver to Landlord a statement
certifying (i) that this Lease is unmodified and in full force and
effect (or, if modified, stating the nature of such modification and
certifying that this Lease, as so modified, is in full force and
effect) (ii) the date to which the rent, security deposit, and other
sums payable hereunder have been paid, (iii) acknowledging that there
are not, to Xxxxxx's knowledge, any uncured defaults on the part of
Landlord hereunder, or specifying such defaults, if any, which are
claimed, and (iv)
13.
such other matters as may reasonably be requested by Landlord. Any such
statement may be conclusively relied upon by any prospective purchaser
or encumbrancer of the Building.
b. Tenant's failure to deliver such statement within such time shall be
conclusive upon Tenant, (i) that this Lease is in full force and
effect, without modification except as may be represented by Landlord,
(ii) that there are no uncured defaults in Landlord's performance, and
(iii) that not more than one month's rent has been paid in advance.
c. If the Landlord desires to finance or refinance the Building, Xxxxxx
agrees to deliver to any lender designated by Landlord such financial
statements of Tenant as may be reasonably required by such lender. All
such financial statements shall be received by Landlord and its lender
in confidence and shall be used for the purposes herein set forth.
Tenant's obligations under this paragraph shall be limited to
delivering financial statements existing as of the date of the request.
17. SUBORDINATION. This Lease, at Xxxxxxxx's option, shall subordinate to
any ground lease, first mortgage, deed of trust, or any other
hypothecation for security now or hereafter placed upon the Building
and to any and all advances made on the security thereof and to all
renewals, modifications, consolidations, replacements and extensions
thereof. Notwithstanding such subordination, Xxxxxx's right to quiet
possession of the premises shall not be disturbed if Tenant is not in
default and so long as Tenant shall pay the rent and observe and
perform all of the provisions of this Lease, unless this Lease is
otherwise terminated pursuant to its terms. If any first mortgagee,
trustee, or ground lessor shall elect to have this Lease prior to the
lien of its first mortgage, deed of trust or ground lease, and shall
give notice thereof to Tenant, this Lease shall be deemed prior to such
first mortgage, deed of trust, or ground lease, whether this Lease is
dated prior to or subsequent to the date of said first mortgage, deed
of trust or ground lease or the date of recording thereof. If any first
mortgage or deed of trust to which this Lease is subordinate is
foreclosed or a deed in lieu of foreclosure is given to the first
mortgagee or beneficiary, Tenant shall attorn to the purchaser at the
foreclosure sale or to the grantee under the deed in lieu of
foreclosure; if any ground lease to which this Lease is subordinate is
terminated, Tenant shall attorn to the ground lessor. Xxxxxx agrees to
execute any documents required to effectuate such subordination or to
make this Lease prior to the lien of any first mortgage, deed of trust
or ground lease, as the case may be, or to evidence such attornment.
Tenant shall give any holder of a first mortgage or deed of trust
placed upon the Building ("Holder"), in compliance with the notice
provisions of this Lease, a copy of any notice of default served upon
Landlord, provided that prior to such-notice, Tenant has been notified
in writing (by way of notice of assignment of rents and leases, or
otherwise) of the address of such Holder. If Landlord shall have failed
to cure such default w or such longer period of time as Landlord shall
have the right to cure the default under the Lease, holder shall have
the right, but not the duty, to cure such default within an additional
thirty (30) day period or if such default cannot be cured within that
time, then such additional time as may be necessary to cure such
default, including the time necessary to foreclose or otherwise
terminate its first mortgage or deed of trust if necessary to
effectuate such cure.
(SEE ADDENDUM TO LEASE)
14.
18. ATTORNEYS' FEES. If, as a result of any breach or default in the
performance of any of the provisions of this Lease, Landlord uses the
services of any attorney in order to secure compliance with such
provisions or recovered damages therefor, or to terminate this Lease or
evict Tenant, Tenant shall reimburse Landlord for any and all
attorneys' fees and expenses in such amount as the court may adjudge
reasonable, provided that if Tenant shall be the prevailing party in
any legal action brought by Landlord against Tenant, Tenant will be
entitled to recover any and all attorneys' fees and expenses in such
amount as the court may adjudge reasonable.
19. NON-DISCRIMINATION. Tenant covenants for itself, its heirs, executors,
administrators, and assigns, and all persons claiming under or through
it, and this Lease is made and accepted upon it subject to the
condition that there shall be no discrimination against or segregation
of any person or group of persons, on account of race, color, creed,
religion, sex, marital status, national origin, or ancestry in the
leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment
of the premises herein leased nor shall the Tenant itself, or any
person claiming under or through it, establish or permit any such
practice or practices of discrimination or segregation with reference
to the selection, location, number, use, or occupancy of tenants,
subtenants, or vendees in the premises.
20. NOTICES. All notices, consents, demands, and other communications from
one party to the other given pursuant to the terms of this Lease shall
be in writing and shall be deemed to have been fully given when
deposited in the United States mail, certified or registered, postage
prepaid, and addressed as follows: to Tenant at the address specified
in the Basic Lease Information or to such other place as Tenant may
from time to time designate in a notice to Landlord, or, to Landlord at
the address specified in the Basic Lease Information, or to such other
place and with such other copies as Landlord may from time to time
designate in a notice to Tenant.
21. GENERAL PROVISIONS.
a. This Lease shall be governed by and construed in accordance with the
laws of the state of California.
b. The invalidity of any provision of this Lease, as determined by a
court of competent jurisdiction, shall in no way affect the validity of
any other provision hereof.
c. This Lease contains all agreements of the parties with respect to
any matter mentioned herein and only may be modified in writing, signed
by the parties.
d. No waiver by Landlord of any provision hereof shall be deemed a
waiver of any other provision or of any subsequent breach by Tenant of
the same or any other provision. Xxxxxxxx's consent to or approval of
any act shall not be deemed to render unnecessary the obtaining of
Landlord's consent to or approval of any subsequent act by Xxxxxx. The
acceptance of rent hereunder by Landlord shall not be a waiver of any
preceding breach by Tenant of any provision hereof, other than the
failure of Tenant to pay the particular rent accepted, regardless of
Landlord's knowledge of such preceding breach at the time of acceptance
of such rent.
15.
e. If Tenant remains in possession of the premises or any part thereof
after the expiration of the term with the consent of Landlord, such
occupancy shall be a tenancy from month to month at a rental in the
amount of one hundred fifty percent (150%) of the last month's rental
during the term, plus all other charges payable hereunder, and upon all
of the terms hereof.
f. Subject to the provisions of this Lease restricting assignment or
subletting by Tenant this Lease shall bind the parties. their personal
representatives, successors, and assigns.
(SEE ADDENDUM TO LEASE)
g. Landlord and Landlord's agents shall have the right to enter the
premises at reasonable times for the purpose of inspecting the same,
showing the same to prospective purchasers, tenants, lenders and other
interested parties, and making such alterations, repairs, improvements,
or additions to the premises or to the Building as Landlord may deem
necessary or desirable. Landlord may at any time during the last 120
days of the term place on or about the premises any ordinary "For
Lease" sign.
h. Tenant shall not conduct any auction at the premises without
Landlord's prior consent.
i. The voluntary or other surrender of this Lease by Xxxxxx, the mutual
cancellation thereof or the termination of this Lease by Landlord as a
result of Tenant's default shall, at the option of Landlord, terminate
all or any existing subtenancies or may, at the option of Landlord,
operate as an assignment to Landlord of any or all of such
subtenancies.
j. If Tenant is a corporation, each individual executing this Lease on
behalf of Tenant represents and warrants that he is duly, authorized to
execute and deliver this Lease on behalf of the corporation in
accordance with a duly adopted resolution of the Board of Directors.
k. The term "Landlord" as used herein means the then owner of the
Building and in the event of a sale of the Building the selling owner
shall be automatically relieved of all obligations of Landlord
hereunder, except for acts or omissions of Landlord theretofore
occurring.
l. The term "day" as used herein means a calendar day.
m. The obligations of Landlord under this Lease do not constitute
personal obligations of the partners, directors, officers,
shareholders, or trustees of Landlord, Tenant shall look solely to
Landlord and its assets for the realization of any claims against
Landlord and not to the assets of any of the partners of Landlord, and
Tenant expressly waives any and all right to proceed against any of its
partners or the officers, directors, trustees, shareholders, agents, or
employees of any of such partners, except to the extent of their
interest in Landlord.
n. On request by Xxxxxxxx, Tenant shall furnish Landlord with
satisfactory evidence of payment of Xxxxxx's business personal property
taxes pertaining to the premises and deliver copies of such business
personal property tax bills to Landlord.
16.
22. EXHIBITS. The exhibits and addendum, if any, specified in the Basic
Lease Information are attached to this Lease and by this reference made
a part hereof.
IN WITNESS WHEREOF, the parties have executed this Lease on the respective dates
indicated below.
TENANT: LANDLORD:
BIOMEDICINES, INC., ALAMEDA REAL ESTATE INVESTMENTS,
a Delaware corporation, a California limited partnership
By: Vintage Alameda Investments, LP
a California limited partnership,
operating general partner
By: Vintage Properties-Alameda Commercial,
a California corporation,
managing general partner
By: By:
Title: CEO Title: President
----------------------------------- -------------------------------------------
Date or Execution Date of Execution
By Tenant: 8 Jan 99 By Landlord: January 11, 1999
------------------------------- -------------------------------------
17.
[GRAPHIC]
[OUTLINE OF LEASED PREMISES BIOMEDICINES, INC.]
1.
EXHIBIT B
INITIAL IMPROVEMENT OF THE PREMISES
MARINA VILLAGE
1. TENANT IMPROVEMENT. Landlord, through its general contractor, shall
furnish and install within the premises substantially in accordance
with the space plan and outline specifications set forth in Exhibit C,
partitions, doors, lighting fixtures, acoustical ceilings, window
coverings, electrical outlets, telephone outlets, heating, ventilating
and air conditioning, fire sprinklers and other items of general
construction (the "Tenant Improvements"). In addition, at its expense,
Landlord shall cause to be performed any construction or modifications
which may be required to bring the public restrooms and path of travel
serving the Building into compliance with the Americans with
Disabilities Act. Landlord and Tenant acknowledge that they have
approved the space plan and outline specifications identified in
Exhibit C. The quantities, character and manner of installation of all
of the Tenant Improvements shall be subject to the limitations imposed
by any applicable governmental regulations.
2. ALLOCATION OF COST. Except as otherwise expressly set forth herein,
Tenant shall bear the entire cost of the Tenant Improvements, permits,
and all architectural and engineering services.
3. PAYMENT OF TENANT'S COST. Tenant shall pay to Landlord all amounts due
under the terms of this Exhibit B within ten days after billing by
Landlord. Bills may be rendered during the progress of the plans and
specifications and the Tenant Improvements so as to enable Landlord to
pay permit and processing fees and its architects, engineers and
general contractor without advancing Landlord's funds. Landlord shall
not be obligated to continue installation of the Tenant Improvements if
Tenant does not pay the cost of the Tenant Improvements to Landlord
when due. If Tenant does not make timely payment to Landlord, Landlord
may, but shall not be obligated to, advance Landlord's funds to pay
Tenant's share of the cost of the Tenant Improvements and any funds so
advanced shall be payable to Landlord upon demand as additional rent
and shall bear interest as provided in paragraph 3(d) of the Lease.
4. PLANS AND SPECIFICATIONS.
a. Landlord, through its architects and engineers, shall prepare
construction drawings for the pricing and construction of the Tenant
Improvements. At its own expense, Tenant shall provide Landlord's
architects and engineers with sufficient instructions, as described
below, to enable Xxxxxxxx's architects and engineers to prepare
complete plans and specifications for the Tenant Improvements.
b. Tenant's instructions to Xxxxxxxx's architects and engineers shall
include all relevant information, including, without limitation,
Tenant's budget, special floor loadings, floor openings, air
conditioning, plumbing and electrical loads, location and size of
telephone equipment, location and size of all of the functional
requirements and the nature of desired finishes, casework, millwork,
lighting and any special acoustic treatments. Tenant and Landlord shall
diligently pursue preparation of all such plans and specifications
which shall
1.
be subject to approval by Xxxxxxxx. If information submitted by Tenant
is not sufficient for Landlord's purposes, Landlord shall so notify
Tenant within fifteen days after receipt of such information specifying
the required additional information. Within five business days
thereafter, Tenant shall provide the additional information to Landlord
in a form sufficient to permit Landlord, its architects and engineers,
and general contractor to proceed with the construction of the Tenant
Improvements. In the course of the preparation of the construction
drawings, Tenant and Landlord's architects and engineers shall consult
with each other to facilitate Xxxxxx's approval thereof when completed.
Tenant shall approve or reasonably disapprove of the construction
drawings within 5 days.
c. Upon completion and approval of the construction drawings by
Xxxxxxxx and Tenant, Landlord shall obtain and submit to Tenant a bid
for the cost of the Tenant Improvements from Landlord's contractor.
Tenant shall approve or disapprove such bid within the time provided in
paragraph 7 below. If disapproved, then within seven days following
such disapproval Tenant shall provide Landlord with additional
information adequate to permit the revision of the plans and
specifications and re-pricing of the Tenant Improvements and the plans
and specifications as so revised shall be deemed approved.
5. CHANGES. Tenant shall bear the cost of any changes in the Tenant
Improvements requested by Tenant after final approval of the bid plans
and specifications by Xxxxxx, together with a fee for Landlord's
construction administration in an amount not to exceed 15% of the cost
of such changes. In the event Landlord or its general contractor is
instructed by Tenant to proceed with such changes without approval of
such increases by Tenant, the amount thereof shall be as determined by
Landlord upon completion of the Tenant Improvements, subject only to
Landlord's furnishing to Tenant of appropriate back-up information from
Xxxxxxxx's general contractor concerning increased costs and
construction delays.
6. TENANT VENDORS.
a. Any items or work beyond the scope of normal construction trades for
which Tenant contracts separately (hereinafter "Tenant Vendor's Work"),
shall be subject to Landlord's reasonable policies and schedules and
shall be conducted in such a way as not to unreasonably hinder, cause
any disharmony with or delay work of improvements in the Building. To
this end, Tenant shall conform with a schedule determined by Xxxxxxxx's
contractor and no work shall be done by Tenant which would cause
Landlord's contractor to be dependent upon such work for completion of
Landlord's contractor's work. If necessary in order to avoid
interference with Xxxxxxxx's contractor's work, all of Tenant Vendor's
Work shall be done with labor in accordance with the Northern
California Master Labor Agreement. In no event shall work involving the
sprinkler, plumbing, mechanical, electrical power, lighting or fire
safety systems of the Building be performed by any contractor or
subcontractor other than Landlord's approved subcontractors and all
telecommunications and other special electrical equipment shall be
installed under the supervision of Xxxxxxxx's electrical subcontractor.
b. Not less than five days prior to the date Tenant desires to commence
Tenant Vendor's Work, it shall submit a written request to Landlord
setting forth or accompanied by all of the following:
2.
1. A description and schedule for the work to be performed;
2. The names and addresses of all contractors, subcontractors and
material suppliers who will perform the Tenant Vendor's Work;
3. The approximate number of individuals, itemized by trade, who
will be present in the premises;
4. Copies of all plans and specifications pertaining to the Tenant
Vendor's Work;
5. Copies of all licenses and permits which may be required in
connection with the performance of Tenant Vendor's Work;
6. Certificates of insurance indicating compliance with the
insurance requirements set forth in the Lease;
7. Performance and labor and materials bonds in an amount not less
than Landlord's reasonable estimate of the total cost of such
Tenant Vendor's Work and, at Xxxxxxxx's request, evidence of the
availability of funds sufficient to pay for all such Tenant
Vendor's Work.
All of the foregoing shall be subject to Landlord's approval, which
approval shall not be unreasonably withheld.
c. Tenant shall be responsible for any out-of-pocket expenses incurred
by Landlord due to inadequate cleanup by those performing Tenant
Vendor's Work.
d. If, in Landlord's reasonable opinion, any supplier, contractor or
xxxxxxx performing Tenant Vendor's Work hinders or delays, directly or
indirectly, any other work of improvement in the Building or performs
any work which may or does impair the quality, integrity or performance
of any portion of the Building, Landlord shall give notice to Tenant
and immediately thereafter, Tenant shall cause such supplier,
contractor or xxxxxxx immediately to remove all of its tools, equipment
and materials and to cease working in the Building. As additional rent
under the Lease, Tenant shall reimburse Landlord for any reasonable
repairs or corrections of the improvements or of any portion of the
Building or the reasonable cost of any delays caused by or resulting
from the actions or omissions of anyone performing Tenant Vendor's
Work.
7. COMPLETION AND RENTAL COMMENCEMENT DATE. Notwithstanding anything to
the contrary contained in the Lease, Xxxxxx's obligation for the
payment of rental under the Lease shall not commence until Landlord has
substantially completed the Tenant Improvements, subject only to the
completion of punch list items. Substantial completion shall be as
determined by issuance of a Temporary Certificate of Occupancy issued
by the City of Alameda. If Landlord shall be delayed in substantially
completing the Tenant Improvements as a result of:
a. Tenant's changes to plans and specifications after approval thereof
pursuant to Paragraph 4(c) above;
3.
b. Tenant's request for materials, finishes, or installations other
than tenant standard improvements;
c. Xxxxxx's request for changes in the Tenant Improvements after
commencement of construction;
d. Hindrance or disruption of the work of Xxxxxxxx's contractor
resulting from Tenant Vendor's Work or any other reason under Xxxxxx's
control; or
e. Cessation or termination of work in the premises due to Tenant's
failure to pay when due all amounts payable by Tenant pursuant to this
Exhibit B;
then the commencement date of Tenant's obligation for payment of rental
shall be advanced by the number of days of such delay. All time periods
referred to in this Exhibit B shall be computed on a calendar basis
with no allowance for holidays or weekends.
IN WITNESS WHEREOF, the parties have executed this Exhibit B on the respective
dates they executed the Lease.
TENANT: LANDLORD:
BIOMEDICINES, INC., ALAMEDA REAL ESTATE INVESTMENTS,
a Delaware corporation a California limited partnership
By: Vintage Alameda Investments, LP
a California limited partnership,
operating general partner
By: Vintage Properties-Alameda Commercial,
California corporation,
managing general partner
By: By:
---------------------------------- ---------------------------------------------
Its: CEO Its: President
--------------------------------- --------------------------------------------
4.
[GRAPHIC]
[OUTLINE OF LEASED PREMISES BIOMEDICINES, INC.]
1.
ADDENDUM TO
MARINA VILLAGE
FULL SERVICE OFFICE LEASE
THIS ADDENDUM TO MARINA VILLAGE FULL SERVICE OFFICE LEASE shall constitute part
of that certain Marina Village Full Service Office Lease dated as of December 1,
1998 (the "Lease"), by and between ALAMEDA REAL ESTATE INVESTMENTS, a California
limited partnership ("Landlord"), and BIOMEDICINES, INC., a Delaware
corporation.
1. AMENDMENT OF PARAGRAPH 1. The following language is hereby added to the
end of Paragraph 1:
"Landlord shall deliver the Premises to Tenant with HVAC and electrical
in good working order. To the best of Xxxxxxxx's actual knowledge,
without having conducted any investigation, neither the Building nor
the Premises contain any Hazardous Materials."
2. AMENDMENT OF PARAGRAPH 2(b). The following language is hereby added to
the end of Paragraph 2(b):
"Notwithstanding anything to the contrary herein, if Landlord has not
delivered the Premises substantially completed to Tenant on or before
May 1, 1999, Tenant shall have the right thereafter to terminate the
lease upon written notice given to Landlord at anytime prior to the
date Landlord makes the Premises available to Tenant for occupancy.
Upon such termination, Landlord shall return all sums previously
deposited by Tenant with Landlord, and neither party shall have any
further liability to the other."
3. AMENDMENT OF PARAGRAPH 3. The following language is hereby added to the
end of Paragraph 3:
"At such time as (i) Tenant's uncommitted cash on-hand ("Cash
Reserve"), and (ii) the excess of Tenant's assets over its liabilities
("Net Worth") each exceeds $4,000,000, as evidenced by audited
financial statements delivered to Landlord, Tenant shall receive a rent
credit equal to the lesser of (y) the costs incurred by Tenant to
complete the initial tenant improvements pursuant to Exhibit B, or (z)
$82,965.00. The rent credit shall be applied in twelve (12) equal
monthly installments against the amounts of Base Rent next becoming
due, beginning with the month immediately following the month in which
Xxxxxx delivers such evidence to Landlord."
4. AMENDMENT OF PARAGRAPH 4(a). The following language is hereby added to
the end of Paragraph 4(a):
"Notwithstanding the foregoing, Operating Expenses should not include
any of the following, not necessitated as a result of Tenant, its
employees, its agents or invitees actions: (1) initial costs of
equipment properly chargeable to the capital account consisting of
items of real estate in nature and the original costs of constructing
in the Common Areas; (2) the cost of any capital addition to the
Building or the land on which the Building is located, including
1.
the cost to prepare space for occupancy by a new tenant; (3) costs
incurred to benefit (or as a result of) a specific tenant; (4) salaries
of service personnel to the extent that such service personnel perform
services other than in connection with the management, operation,
repair or maintenance of the Building or Common Areas; (5) overhead and
profit increment paid to Landlord or to subsidiaries or affiliates of
Landlord for goods and/or services in or to the Project to the extent
the same exceeds the cost of such goods and/or services rendered by
unaffiliated third parties on a competitive basis; (6) fines or
penalties which Landlord incurs by reason of its failure to comply with
applicable laws; (7) cost of improving or renovating space for a tenant
or space vacated by a tenant or items and services selectively supplied
to any other tenant; (8) any amounts expended by Landlord as
environmental response costs for removal, enclosure, encapsulation,
clean-up, remediation or other activities regarding Landlords'
compliance with federal, state, municipal or local hazardous waste and
environmental laws, regulations or ordinances unless caused by Tenant
or its invitees; (9) costs to correct original defects in the Building;
(10) expenses paid directly by any tenant (including Tenant) for any
reason (such as excessive utility use);(11) the cost of any repair,
rebuilding or other work necessitated by condemnation, fire, windstorm
or other insured casualty or hazard in excess of the deductible amount
under initial deductible caps in Landlord`s casualty insurance; (12)
the salaries and benefits of any officers above the level of building
managers of Landlord, if any; (13) attorney's fees, accounting fees and
expenditures incurred in connection with negotiations, disputes and
claims of other tenants or occupants of the Building or Marina Village
Project with other third parties except as specifically provided in the
Lease; (14) Landlord's administration fees and overhead, other than the
management fee provided in the Lease; (15) debt or amortization
payments on any mortgage or mortgages encumbering the Building or
rental payments under any ground or underlying lease; (16) capital
improvement reserves; (17) advertising and promotional expenditures;
and (18) the cost of purchasing sculptures and/or paintings. Further,
in the case of any Operating Expense that is a capital expenditure in
accordance with generally accepted accounting principles, the amount
payable by Tenant under this Lease in respect of such expenditure shall
be determined by amortizing the expenditure over a useful life
determined by Landlord in accordance with such accounting principles,
and Landlord may include a provision for interest on the remaining
unamortized balance."
5. AMENDMENT OF PARAGRAPH 6(a). The following language is hereby added to
the end of Paragraph 6(a):
"Notwithstanding anything herein to the contrary, Tenant shall not be
required to make any capital alterations or capital additions to the
Premises in order to comply with any governmental requirements unless
the same are made necessary by reason of Tenant's particular use of the
Premises, Xxxxxx's construction or alteration thereof, or Tenant's
breach of the Lease."
6. AMENDMENT OF PARAGRAPH 6(b). The following language is hereby added to
the end of Paragraph 6(b):
"Landlord shall defend, indemnify and hold Tenant harmless from and
against any liability for and claims for bodily injury, death or damage
to tangible property resulting from the discharge, release or disposal
of Hazardous Materials in the common areas of the Building,
2.
which discharge, release or disposal is caused by Landlord's sole
negligence or willful misconduct."
7. AMENDMENT OF PARAGRAPH 10(a). Paragraph 10(a) is hereby amended to read
as follows:
"10(a). If during the term the Premises are totally or partially
destroyed, or any other portion of the Building is damaged in such a
way that Tenant's use of the Premises is materially interfered with,
from a risk which is wholly covered by insurance, then subject to the
availability of insurance proceeds Landlord shall proceed with
reasonable diligence to repair the damage or destruction and this Lease
shall not be terminated; provided, however, that if in the opinion of
Landlord's architect the work of repair cannot be completed in 120 days
of the date of casualty. Landlord or Tenant may at their election
terminate the Lease by notice given to the other party within 30 days
following Xxxxxxxx's delivery of the architect's opinion to Tenant."
8. AMENDMENT OF PARAGRAPH 11. The following language is hereby added to
the end of Paragraph 11:
"Nothing contained herein shall be deemed to prevent Xxxxxx from
interposing and prosecuting in any condemnation proceeding, a claim
against the condemning authority for the value of any fixtures or
improvements installed in or made to the Premises by Xxxxxx, or for its
costs of moving or loss of business by reason of such condemnation."
9. AMENDMENT OF PARAGRAPH 12: ASSIGNMENT AND SUBLETTING.
The following language is hereby added to the end of paragraph 12(a):
"Notwithstanding any other provisions contained in the Lease to the
contrary, Tenant may, upon prior notice to Landlord accompanied by an
explicit assumption of the Tenant's obligations under this Lease for
the benefit of Landlord, but without Landlord's prior consent, sublet
the Premises or assign its interest in this Lease to (i) a subsidiary
affiliate, division, or corporation controlling, controlled by or under
common control with Tenant, (ii) a successor corporation related to
Tenant by merger, consolidation, non-bankruptcy reorganization or
government action, or (iii) a purchaser of substantially all of
Tenant's assets as a going concern. A sale or transfer of Tenant's
capital stock shall not be deemed an assignment, subletting or any
other transfer of its interest in the Lease or in the Premises;
provided, however, that in the case of such purchase of Tenant's
assets, the assignee has a tangible net worth at least equal to that of
Tenant as of the commencement of the term. Xxxxxxxx's right to
recapture the Premises and terminate the Lease as set forth in this
Paragraph 12 shall not apply in the case of a sublet or assignment by
Tenant pursuant to clauses (i) through (iii) above."
10. AMENDMENT OF PARAGRAPH 15. The following language is hereby added to
the end of Paragraph 15:
"At such time as Tenant establishes a Cash Reserve of $4,000,000,
Tenant shall deposit an additional $45,354.20 with Landlord as an
increase in the Deposit. At such time as Tenant's Cash Reserve and
Tenant's Net Worth each exceeds $6,000,000, as evidenced by audited
3.
financial statements delivered to Landlord, the Deposit shall be
reduced to $37,610.80 and Landlord shall return any excess portion of
the Deposit to Tenant within thirty (30) days following the date Tenant
delivers its audited financial statements to Landlord."
11. AMENDMENT OF PARAGRAPH 18. Paragraph 18 is hereby amended to read as
follows:
"ATTORNEYS' FEES. If as a result of any breach or default in the
performance of any of the provisions of this Lease, Landlord or Tenant
brings any legal action in order to secure compliance with such
provisions or recover damages therefor, or to terminate this Lease or
evict Tenant, the losing party shall reimburse the prevailing party
upon demand for any and all attorneys' fees and expenses so incurred by
the prevailing party."
12. AMENDMENT OF PARAGRAPH 21(g). The following language is hereby added
to the end of Paragraph 21(g):
"Landlord shall provide Tenant with 48 hours prior notice (except in an
emergency in which case Landlord shall use reasonable efforts to
provide Tenant with prior telephone notice) before entering the
Premises; provided, however, during the last 6 months of the lease
term, Landlord shall provide Tenant with 24 hours prior notice of any
non-emergency entry onto the Premises. In the event of any entry by
Landlord onto the Premises, Landlord shall use reasonable efforts not
to interfere with the conduct of Xxxxxx's business."
13. PARAGRAPH 23. The following new Paragraph 23 is hereby added to the
Lease:
"23. EXPANSION/RELOCATION OF PREMISES. If, Xxxxxx notifies Landlord
that it desires to lease additional Qualifying Office Space (defined
below), Landlord shall notify Tenant whether any Qualifying Office
Space contiguous with the Premises is available for lease. If there is
no contiguous Qualifying Office Space available for lease, Landlord
shall notify Tenant whether any non-contiguous Qualifying Office Space
located on the second floor of the Building is available for lease, and
if none is available, whether any Qualifying Office Space located on
other floors of the Building is available for lease. If there is no
Qualifying Office Space within the Building available for lease, and
provided (i) Tenant desires to lease an aggregate of at least 9,000
rentable square feet of office space, and (ii) the commencement date
for the lease of additional office space will be on or after January 1,
2001, then Landlord shall notify Tenant whether there is any office
space ("Relocation Space") located in other buildings within the Marina
Village project then owned by Landlord which meets Xxxxxx's criteria.
If such Relocation Space is available for lease, Landlord and Tenant
shall negotiate in good faith, but for not more than fifteen days,
regarding Tenant's relocation from the Premises to the Relocation
Premises; provided, however, Landlord shall not be required to incur
any expenses in connection with said relocation. If Landlord and Tenant
reach agreement on Tenant's relocation, Tenant shall execute, at
Landlord's option, an amendment to this Lease or a new lease setting
forth the terms of Tenant's lease of the Relocation Premises and the
termination of this Lease with respect to the Premises. If Landlord and
Tenant are unable to reach agreement on Tenant's relocation, this Lease
shall continue in full force and effect and Landlord shall have no
obligation to relocate Tenant's business or to make any additional
off-ice space available for lease by Tenant. For purposes of this
4.
Paragraph 23, "Qualifying Office Space" shall mean office space
consisting of at least 1,500 rentable square feet."
14. PARAGRAPH 24. The following new Paragraph 24 is hereby added to the
Lease:
"24. TENANT'S OPTION TO TERMINATE. Tenant shall have the option to
terminate this Lease effective February 28, 2002 upon the following
terms and conditions:
a. At the time Tenant's option is exercised, the Lease shall be in full
force and effect, Tenant shall not be in default thereunder;
b. Tenant's option to terminate shall be exercised, if at all, by
notice to Landlord given on or before August 31, 2001, and
c. Concurrently with its notice of exercise, Tenant shall pay to
Landlord an amount equal to the product obtained by multiplying 40% by
the sum of (i) the rent credit received by Tenant pursuant to Paragraph
1 above, and (ii) the reasonable costs ("Landlord Costs") incurred by
Landlord in connection with the Lease, including tenant improvement
costs, if any, reasonable attorney's fees, architectural/mechanical
construction drawings costs and brokerage commissions. By way of
example, if the rent credit received by Tenant totals $82,965 and
Landlord's Costs were $5,000, then the termination payment payable by
Tenant to Landlord would be $35,186 (i.e., 40 x [$82,965 + $5,000])."
15. PARAGRAPH 25. The following new Paragraph 25 is hereby added to the
Lease:
"25. PARKING. Tenant shall be entitled to the non-exclusive use of
parking, on a non-designated basis and without charge unless required
by law, at the rate of 3.4 spaces per 1,000 rentable square feet of
the Premises. Tenant's employees and invitees shall comply with
Landlord's reasonable rules and regulations regarding the use of
project parking facilities."
16. PARAGRAPH 26. The following new Paragraph 26 is hereby added to the
Lease:
"26. SIGNAGE. Landlord shall provide standard signage for Tenant on the
directories located in tile Building lobby and on the second floor.
Tenant shall be allowed to place, at its expense, in accordance with
Building signage criteria, a sign on the second floor corridor wall
directing visitors to Tenant's Premises and a sign at its entry to the
Premises."
5.
IN WITNESS WHEREOF, Landlord and Xxxxxx have executed this Addendum to the Lease
as of the date first set forth above.
TENANT: LANDLORD:
BIOMEDICINES, INC., ALAMEDA REAL ESTATE INVESTMENTS,
a Delaware corporation a California limited partnership
By: Vintage Alameda Investments, L.P,
a California limited partnership,
operating general partner
By: Vintage Properties - Alameda Commercial,
a California corporation,
managing general partner
By: By:
------------------------------------- --------------------------------------------
Title: CEO Title: President
---------------------------------- -----------------------------------------
6.
