ASSIGNMENT OF LEASE
This ASSIGNMENT OF LEASE (hereinafter "Assignment") is made on March 22,
1995, between ALPHA 1 BIOMEDICALS, INC. (hereinafter "Assignor"), whose address
is Two Democracy Center, 6903 Rockledge Drive, Suite 1200, Bethesda, Maryland
20817, and SCIOS NOVA INC. (hereinafter "Assignee"), whose address is 2450
Bayshore Parkway, Mountain View, California 94043, who agree as follows:
1. RECITALS. This Assignment is made with reference to the following
facts and objectives:
1.1 Assignor, as Tenant, entered into a written lease dated
January 22, 1993, and subsequent Amendment Nos. 1, 2 and 3 (collectively the
"Master Lease," attached hereto as Exhibit A), in which Landlord (John
Arrillaga, Trustee, or his Successor Trustee, UTA dated 7/20/77 [John Arrillaga
Separate Property Trust] as amended, and Richard T. Peery, Trustee, or his
Successor Trustee, UTA dated 7/20/77 [Richard T. Peery Separate Property Trust]
as amended, collectively the "Landlord") leased to Assignor and Assignor leased
from Landlord premises located in the City of Sunnyvale, County of Santa Clara,
State of California ("Premises"), described as follows:
a portion of that certain 51,680 square foot, one-story building located at
820 West Maude Avenue, Suite 101, Sunnyvale, California 94086, consisting
of approximately 26,920 square feet of space;
1.2 Assignor desires to assign all its right, title, and interest
in the Master Lease to Assignee.
2. EFFECTIVE DATE OF ASSIGNMENT. This Assignment shall take effect
on March 22, 1995, and Assignor shall give possession of the Premises to
Assignee on that date.
3. ASSIGNMENT AND ASSUMPTION. Subject to the terms hereof and to
obtaining the consent of Landlord to this Assignment in the form attached as
Exhibit B, (the "Landlord's Consent"), Assignor assigns and transfers to
Assignee all its right, title, and interest in the Master Lease, and Assignee
accepts the assignment and assumes and agrees to perform, from the date this
Assignment becomes effective, as a direct obligation to Landlord, all the
provisions of the Master Lease as modified by the Landlord's Consent or this
Assignment.
4. HAZARDOUS MATERIALS. Assignor represents and warrants that, to
the best of its knowledge and during the term of its occupancy: (i) no hazardous
waste or substance was stored, treated or disposed of on the Premises, and that
no underground tanks were placed on the Premises; (ii) the Premises is in
complete compliance with all applicable statutes and regulations, including
environmental, health and safety requirements, (iii) Assignor's business on the
Premises disposed of its waste in accordance with all applicable statutes,
ordinances and regulations; (iv)
Assignor has had no notice of any pending or threatened action or proceeding
arising out of the condition of the Premises or alleged violation of
environmental, health or safety statutes, ordinances or regulations; (v) no
condition exists which might threaten the ability of Assignee to acquire all
governmental permits required to operate a business similar to the business of
Assignor on the Premises. Assignor and Assignee agree that in terms of
allocating their responsibility for Hazardous Materials under the Master Lease
(including Section 48), Assignor shall remain responsible for all Hazardous
Materials conditions relating to the Premises existing as of the Effective Date,
and that Assignee shall be responsible only for changes in the hazardous
materials condition of the Premises which result from the operations of Assignee
after the Effective Date of this Assignment.
5. TENANT IMPROVEMENTS; FURNITURE, FIXTURES AND EQUIPMENT. In
exchange for $100,000.00 consideration to be paid to Assignor by Assignee upon
commencement of and as a precondition to the assignment term, Assignor assigns
and transfers to Assignee all its right, title and interest in all existing
tenant improvements in the Premises, in their as-is condition, plus the list of
existing furniture, fixtures and equipment listed on attached Exhibit C.
6. ASSIGNEE TO HOLD ASSIGNOR HARMLESS. Subject to Sections 3 and 4,
if Assignee defaults in its obligations under the Master Lease as modified by
this Assignment or the Landlord's Consent and Assignor in its sole discretion
pays rent to Landlord or fulfills any of Assignee's other obligations in order
to prevent Assignee from being in default, Assignee immediately shall reimburse
Assignor for the amount of rent or costs incurred by Assignor in fulfilling
Assignee's obligations under this Assignment, together with interest on those
sums at the rate of 10% per annum. Assignor and Assignee shall each indemnify
and hold harmless the other and its employees, representatives, directors,
officers and agents (collectively "Agents"), against and from any and all
losses, claims, liabilities, judgments, costs, demands, causes of action, and
expenses (including, without limitation, reasonable attorneys' fees and
consultants' fees) (collectively "Claims") arising from or related to the
following: (a) each such party's use of the Premises or from any activity done,
permitted or suffered by such party in, on or about the Premises, the Building,
or the Property; (b) any act or omission by such party and/or their respective
Agents in connection with or related to this Assignment, the Building, or the
Property; (c) any breach or default of such party in the terms of this
Assignment; and (d) any action or proceeding brought by Landlord pursuant to the
parties' joint and several indemnification of Landlord pursuant to Section 5 of
the Landlord's Consent arising as a result of the foregoing. If any action or
proceeding is brought against a party for which it is entitled to be indemnified
hereunder, (the "Indemnified Party"), upon notice from the other party (the
"Indemnifying Party"), the Indemnifying Party shall defend the same at such
party's expense with counsel reasonably satisfactory to the Indemnified Party.
The obligations of Assignor and Assignee under this Section 6 shall survive any
termination of the Assignment or the Master Lease.
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7. DEFAULT OF LEASE; NOTICE TO ASSIGNOR
7.1 NOTICE TO ASSIGNOR. If Assignee or Assignor receives a
notice of default from Landlord, each shall promptly send a copy to the other.
7.2 ASSIGNOR'S REMEDIES AGAINST ASSIGNEE. If Assignee defaults
under the Master Lease as modified by this Assignment or the Landlord's Consent,
Assignor shall have the rights against Assignee that are available by law and
those contained in the Master Lease, including, without limitation, Assignor's
right to reenter and retake possession of the Premises from Assignee.
8. PREPAID RENT; SECURITY DEPOSIT; BROKERS; PRORATIONS; REMOVAL.
8.1 PREPAID RENT; SECURITY DEPOSIT. The parties acknowledge
that Landlord now holds the sum of $67,300.00 as a Security Deposit, to be
applied subject to the provisions of the Master Lease. Upon commencement of and
as a precondition to the assignment term, Assignee shall reimburse Assignor in
said amount of $67,300.00 for the existing Security Deposit paid under the terms
of the Master Lease. Assignor releases all claims to that sum currently held by
Landlord, and the sum shall be held by Landlord for the benefit of Assignee,
subject to the provisions of the Master Lease.
8.2 BROKERS. Assignor shall be responsible for all compensation
of all brokers relating to this Assignment transaction, specifically including
Cornish & Carey, Catalyst Group and Northbridge Group.
8.3 PRORATIONS. Property taxes, property insurance and any
other expenses billed by Landlord under the Master Lease shall be prorated
between Assignor and Assignee as of the Effective Date.
8.4 REMOVAL OF PROPERTY. Not later than March 21, 1995,
Assignor shall remove from the Premises the items of personal property listed on
Exhibit D.
9. INSURANCE. Assignee shall carry insurance per the Master Lease
and name Assignor as an additional insured. Assignee shall, within 10 days of
the execution hereof, provide Landlord with a certificate of insurance from its
insurer which confirms that the insurance coverage required to be carried by
Tenant under the Master Lease is in full force and effect.
10. MISCELLANEOUS.
10.1 ATTORNEYS' FEES. If either party commences an action
against the other party arising out of or in connection with this Assignment,
the prevailing party shall be entitled to recover from the losing party
reasonable attorneys' fees and costs of suit.
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10.2 NOTICE. Any notice, demand, request, consent, approval, or
communication that either party desires or is required to give to the other
party shall be in writing and either be served personally or sent by registered
or certified prepaid, first-class mail. Any notice, demand, request, consent,
approval, or communication that either party desires or is required to give to
the other party shall be addressed to the other party at the address set forth
in the introductory paragraph of this Agreement. Either party may change its
address by notifying the other party of the change of address. Notice shall be
deemed communicated upon receipt if mailed as provided in this paragraph.
10.3 SUCCESSORS. This Assignment shall be binding on and inure
to the benefit of the parties and their successors.
10.4 GOVERNING LAWS. This Assignment shall be interpreted and
governed by the laws of the state of California as applied to contracts between
residents of California that is to be performed in California.
IN WITNESS WHEREOF, Assignor and Assignee have executed this Agreement as
of the day and year first hereinabove set forth.
ASSIGNOR: ASSIGNEE:
ALPHA 1 BIOMEDICALS, INC., SCIOS NOVA INC.,
a Delaware corporation a Delaware corporation
By/S/ROBERT J. LANHAM By /S/RICHARD L. CASEY
------------------------- -------------------------
Robert J. Lanham Richard L. Casey
Vice President Chairman, President &
Finance & Administration Chief Executive Officer
Exhibits:
A: Master Lease
B: Landlord's Consent to Assignment
C: Personal Property Sold to Assignee
D: Personal Property to be Removed
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EXHIBIT A
PROP #090
UNIT #2
TENANT #9002
LEASE AGREEMENT
THIS LEASE, made this 22nd day of January, 1993 between JOHN ARRILLAGA, Trustee,
or his Successor Trustee, UTA dated 7/20/77 (JOHN ARRILLAGA SEPARATE PROPERTY
TRUST) as amended, and RICHARD T. PEERY, Trustee, or his Successor Trustee, UTA
dated 7/20/77 (RICHARD T. PEERY, SEPARATE PROPERTY TRUST) as amended,
hereinafter called Landlord and ALPHA 1 BIOMEDICALS, INC., a Delaware
corporation, hereinafter called Tenant.
WITNESSETH:
Landlord hereby leases to Tenant and Tenant hereby hires and takes from
Landlord those certain premises (the "Premises") outlined in red on Exhibit "A",
attached hereto and incorporated herein by this reference thereto more
particularly described as follows:
A portion of that certain 51,680+ square foot, one-story building
located at 810 W. Maude Ave., Ste. 101, Sunnyvale, California,
consisting of approximately 15,018+ square feet of space. Said
Premises is more particularly shown within the area outlined in Red on
EXHIBIT A. The entire parcel, of which the Premises is a part, is
shown within the area outlined in Green on EXHIBIT A attached hereto.
The Premises is leased on an "as-is" basis, in its present condition,
and in the configuration as shown in Red on EXHIBIT B attached hereto.
The word "Premises" as used throughout this lease is hereby defined to
include the nonexclusive use of sidewalks and driveways in front of or adjacent
to the Premises, and the nonexclusive use of the area directly underneath or
over such sidewalks and driveways. The leased area of the Premises shall be
measured from outside of exterior walls to outside of exterior walls, and shall
include any atriums, covered entrances or egresses and covered loading areas.
Said letting and hiring is upon and subject to the terms, covenants and
conditions hereinafter set forth and Tenant covenants as a material part of the
consideration for this Lease to perform and observe each and all said terms,
covenants and conditions. This Lease is made upon the conditions of such
performance and observance.
1. USE Tenant shall use the Premises only in conformance with applicable
governmental laws, regulations, rules and ordinances for the purpose of general
office, light manufacturing, research and development, and storage and other
uses necessary for Tenant to conduct Tenant's business in accordance with all
applicable governmental laws and ordinances and for no other purpose. Tenant
shall not do or permit to be done in or about the Premises nor bring or keep or
permit to be brought or kept in or about the Premises anything which is
prohibited by or will in any way increase the existing rate of (or otherwise
effect) fire or any insurance covering the Premises or any part thereof, or any
of its contents, or will cause a cancellation of any insurance covering the
Premises or any part thereof, or any of its contents. Tenant shall not do or
permit to be done anything in, on or about the Premises which will in any way
obstruct or interfere with the rights of other tenants or occupants of the
Premises or neighboring premises or injure or annoy them, or use or allow the
Premises to be used for any improper, immoral, unlawful or objectionable
purpose, nor shall Tenant cause, maintain or permit any nuisance in, on or about
the Premises. No sale by auction shall be permitted on the Premises. Tenant
shall not place any loads upon the floors, walls, or ceiling which endanger the
structure, or place any harmful fluids or other material in the drainage system
of the building,
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or overload existing electrical or other mechanical systems. No waste materials
or refuse shall be dumped upon or permitted to remain upon any part of the
Premises or outside of the building in which the Premises are a part, except in
trash containers placed inside exterior enclosures designated by Landlord for
that purpose or inside of the building proper where designated by Landlord. No
materials, supplies, equipment, finished products or semi-finished products, raw
materials or articles of any nature shall be stored upon or permitted to remain
outside the Premises. Tenant shall not place anything or allow anything to be
placed near the glass of any window, door partition or wall which may appear
unsightly from outside the Premises. No loudspeaker or other device, system or
apparatus which can be heard outside the Premises shall be used in or at the
Premises without the prior written consent of Landlord. Tenant shall not commit
or suffer to be committed any waste in or upon the Premises. Tenant shall
indemnify, defend and hold Landlord harmless against any loss, expense, damage,
reasonable attorneys' fees, or liability arising out of failure of Tenant to
comply with any applicable law. Tenant shall comply with any covenant,
condition, or restriction ("CC&R's") affecting the Premises. The provisions of
this paragraph are for the benefit of Landlord only and shall not be construed
to be for the benefit of any tenant or occupant of the Premises.
2. TERM
A. The term of this lease shall be for a period of FIVE YEARS SIX MONTHS
(5Y 6M) years (unless sooner terminated as hereinafter provided) and, subject to
Paragraphs 2B and 3, shall commence on the 1st day of March, 1993 and end on the
31st day of August, 1998.
B. Possession of the Premises shall be deemed tendered and the term of
the Lease shall commence on March 1, 1993.
3. RENT
A. BASIC RENT. Tenant agrees to pay Landlord at such place as Landlord
may designate without deduction, offset, prior notice, or demand, and Landlord
agrees to accept as Basis Rent for the leased Premises the total sum of EIGHT
HUNDRED FIFTY SIX THOUSAND TWENTY SIX AND NO/100 Dollars ($856,026.00) in lawful
money of the United States of America, payable as follows:
SEE PARAGRAPH 39 FOR BASIS RENT SCHEDULE.
B. TIME FOR PAYMENT. Full monthly rent is due in advance on the first
day of each calendar month. In the event that the term of this Lease commences
on a date other than the first day of the calendar month, on the date of
commencement of the term hereof Tenant shall pay to Landlord as rent for the
period from such date of commencement to the first day of the next succeeding
calendar month that proportion of the monthly rent hereunder which the number of
days between such date of commencement and the first day of the next succeeding
calendar month bears to thirty (30). In the event that the term of this Lease
for any reason ends on a date than the last day of a calendar month, on the
first day of the last calendar month term hereof Tenant shall pay to Landlord as
rent for the period from said first day of said last calendar month to and
including the last day of the term hereof that proportion of the monthly rent
hereunder which the number of days between said first day of said last calendar
month and the last day of the term hereof bears to thirty (30).
C. LATE CHARGE. Notwithstanding any other provision of this Lease, if
Tenant is in default in the payment of rental as set forth in this Paragraph 4
when due, or any part thereof, Tenant agrees to pay Landlord, in addition to the
delinquent rental due, a late charge for each rental payment in default ten (10)
days. Said late charge shall equal ten (10%) of each rental payment so in
default.
D. ADDITIONAL RENT. Beginning with commencement date of the term of
this Lease, Tenant shall pay to the Landlord or to Landlord's designated agent
in addition to the Basic Rent and as Additional Rent the following:
(a) All Taxes relating to the Premises as set forth in Paragraph 9, and
(b) All insurance premiums relating to the Premises, as set forth in
Paragraph 12, and
(c) All charges, costs and expenses, which Tenant is required to pay
hereunder, together with all interest and penalties, costs and expenses
including reasonable attorneys' fees and legal expenses, that may accrue thereto
in the event of Tenant's failure to pay such amounts, and all damages,
reasonable costs and expenses which Landlord may incur by reason of default of
Tenant or failure on Tenant's part to comply with the terms of this Lease. In
the event of nonpayment by Tenant of Additional Rent, Landlord shall have all
the rights and remedies with respect thereto as Landlord has for nonpayment of
rent.
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The Additional Rent due hereunder shall be paid to Landlord or Landlord's
agent (i) within ten days after presentation of invoice from Landlord or
Landlord's agent setting forth such Additional Rent and/or (ii) at the option of
Landlord, Tenant shall pay to Landlord monthly, in advance, Tenant's prorata
share of an amount estimated by Landlord to be Landlord's approximate average
monthly expenditure for such Additional Rent items, which estimated amount shall
be reconciled at the end of each calendar year as compared to Landlord's actual
expenditure for said Additional Rent items, with Tenant paying to Landlord, upon
demand, any amount of actual expenses by Landlord in excess of said estimated
amount, or Landlord refunding to Tenant (providing Tenant is not in default in
the performance of any of the terms, covenants and conditions of this Lease) any
amount of estimated payments made by Tenant in excess of Landlord's actual
expenditures for said Additional Rent items.
The respective obligations of Landlord and Tenant under this paragraph
shall survive the expiration or other termination of the term of this Lease, and
if the term hereof shall expire or shall otherwise terminate on a day other than
the last day of a calendar year, the actual Additional Rent incurred for the
calendar year in which the term hereof expires or otherwise terminates shall be
determined and settled on the basis of the statement of actual Additional Rent
for such calendar year and shall be prorated in the proportion which the number
of days in such calendar year preceding such expiration or termination bears to
365.
E. PLACE OF PAYMENT OF RENT AND ADDITIONAL RENT. All Basic Rent
hereunder and all payments hereunder for Additional Rent shall be paid to
Landlord at the office of Landlord at PEERY/ARRILLAGA, P.O. BOX 60000, FILE
1504, SAN FRANCISCO, CALIFORNIA 94160 or to such other person or to such other
place as Landlord may from time to time designate in writing.
F. SECURITY DEPOSIT. Concurrently with Tenant's execution of this
Lease, Tenant shall deposit with Landlord the sum of THIRTY ONE THOUSAND FIVE
HUNDRED THIRTY SEVEN AND 80/100 Dollars ($31,537.80). Said sum shall be held by
Landlord as a Security Deposit for the faithful performance by Tenant of all
terms, covenants, and conditions of this Lease to be kept and performed by
Tenant during the term hereof. If Tenant defaults with respect to any provision
of this Lease, including, but not limited to, the provisions relating to the
payment of rent and any of the monetary sums due herewith, Landlord may (but
shall not be required to) use, apply or retain all or any part of this Security
Deposit for the payment of any other amount which Landlord may spend by reason
of Tenant's default or to compensate Landlord for any other loss or damage which
Landlord may suffer by reason of Tenant's default. If any portion of said
Deposit is so used or applied, Tenant shall, within ten (10) days after written
demand therefor, deposit cash with Landlord in the amount sufficient to restore
the Security Deposit to its original amount. Tenant's failure to do so shall be
a material breach of this Lease. Landlord shall not be required to keep this
Security Deposit separate from its general funds, and Tenant shall not be
entitled to interest on such Deposit. If Tenant fully and faithfully performs
every provision of this Lease to be performed by it, the Security Deposit or any
balance thereof shall be returned to Tenant (or at Landlord's option, the last
assignee of Tenant's interest hereunder) at the expiration of the Lease term and
after Tenant has vacated the Premises. In the event of termination of
Landlord's interest in this Lease, Landlord shall transfer said Deposit to
Landlord's successor in interest whereupon Tenant agrees to release Landlord
from liability for the return of such Deposit or the accounting therefor.
4. ACCEPTANCE AND SURRENDER OF PREMISES By entry hereunder, Tenant accepts
the Premises as being in good and sanitary order, condition and repair and
accepts the building and improvements included in the Premises in their present
condition and without representation or warranty by Landlord as to the condition
of such building or as to the use or occupancy which may be made thereof. Any
exceptions to the foregoing must be by written agreement executed by Landlord
and Tenant. Tenant agrees on the last day of the Lease term, or on the sooner
termination of this Lease, to surrender the Premises promptly and peaceably to
Landlord in good condition and repair (damage by Acts of God, fire, normal wear
and tear excepted), with all interior walls painted, or cleaned so that they
appear freshly painted, and repaired and replaced, if damaged; all floors
cleaned and waxed; all carpets cleaned and shampooed; all broken, marred or
nonconforming acoustical ceiling tiles replaced; all windows washed; the air
conditioning and heating systems serviced by a reputable and licensed service
firm and in good operating condition and repair; the plumbing and electrical
systems and lighting in good order and repair, including replacement of any
burned out or broken light bulbs or ballasts; the lawn and shrubs in good
condition including the replacement of any dead or damaged plantings; the
sidewalk, driveways and parking areas in good order, condition and repair;
together with all alterations, additions, and improvements which may have been
made in, to, or on the Premises (except moveable trade fixtures installed at the
expense of Tenant) except that Tenant shall ascertain from Landlord within
thirty (30) days before the end of the term of this Lease whether Landlord
desires to have the Premises or any part or parts thereof restored to their
condition and configuration as when the Premises were delivered to Tenant
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and if Landlord shall so desire, then Tenant shall restore said Premises or such
part or parts thereof before the end of this Lease at Tenant's sole cost and
expense. Tenant, on or before the end of the term or sooner termination of this
Lease, shall remove all of Tenant's personal property and trade fixtures from
the Premises, and all property not so removed on or before the end of the term
or sooner termination of this Lease shall be deemed abandoned by Tenant and
title to same shall thereupon pass to Landlord without compensation to Tenant.
Landlord may, upon termination of this Lease, remove all moveable furniture and
equipment so abandoned by Tenant, at Tenant's sole cost, and repair any damage
caused by such removal at Tenant's sole cost. If the Premises be not
surrendered at the end of the term or sooner termination of this Lease, Tenant
shall indemnify Landlord against loss or liability resulting from the delay by
Tenant in so surrendering the Premises including, without limitation, any claims
made by any succeeding tenant founded on such delay. Nothing contained herein
shall be construed as an extension of the term hereof or as a consent of
Landlord to any holding over by Tenant. The voluntary or other surrender of
this Lease or the Premises by Tenant or a mutual cancellation of this Lease
shall not work as a merger and, at the option of Landlord, shall either
terminate all or any existing subleases or subtenancies or operate as an
assignment to Landlord of all or any such subleases or subtenancies.
5. ALTERATIONS AND ADDITIONS Tenant shall not make, or suffer to be made,
any alteration or addition to the Premises, or any part thereof, without the
written consent of Landlord first had and obtained by Tenant (such consent not
to be unreasonably withheld), but at the cost of Tenant, and any addition to, or
alteration of, the Premises, except moveable furniture and trade fixtures, shall
at once become a part of the Premises and belong to Landlord. Landlord reserves
the right to approve all contractors and mechanics proposed by Tenant to make
such alterations and additions. Tenant shall retain title to all moveable
furniture and trade fixtures placed in the Premises. All heating, lighting,
electrical, air conditioning, floor to ceiling partitioning, drapery, carpeting,
and floor installations made by Tenant, together with all property that has
become an integral part of the Premises, shall not be deemed trade fixtures.
Tenant agrees that it will not proceed to make such alteration or additions,
without having obtained consent from Landlord to do so, and until five (5) days
from the receipt of such consent, in order that Landlord may post appropriate
notices to avoid any liability to contractors or material suppliers for payment
for Tenant's improvements. Tenant will at all times permit such notices to be
posted and to remain posted until the completion of work. Tenant shall, if
required by Landlord, secure at Tenant's own cost and expense, a completion and
lien indemnity bond, satisfactory to Landlord, for such work. Tenant further
covenants and agrees that any mechanic's lien filed against the Premises for
work claimed to have been done for, or materials claimed to have been furnished
to Tenant, will be discharged by Tenant, by bond or otherwise, within ten (10)
days after the filing thereof, at the cost and expense of Tenant. Any
exceptions to the foregoing must be made in writing and executed by both
Landlord and Tenant.
6. TENANT MAINTENANCE Tenant shall, at its sole cost and expense, keep and
maintain the Premises (including appurtenances) and every part thereof in a high
standard of maintenance and repair, and in good sanitary condition. Tenant's
maintenance and repair responsibilities herein referred to include, but are not
limited to, janitorization, plumbing systems within the Premises (such as water
and drain lines, sinks), electrical systems within the Premises (such as
outlets, lighting fixtures, lamps, bulbs, tubes, ballasts), heating and
airconditioning controls within in the Premises (such as mixing boxes,
thermostats, time clocks, supply and return grills), all interior improvements
within the premises including but not limited to: wall coverings, window
coverings, acoustical ceilings, vinyl tile, carpeting, partitioning, doors,
(both interior and exterior, including closing mechanisms, latches, locks), and
all other interior improvements of any nature whatsoever. Tenant agrees to
provide carpet shields under all rolling chairs or to otherwise be responsible
for wear and tear of the carpet caused by such rolling chairs if such wear and
tear exceeds that caused by normal foot traffic in surrounding areas. Areas of
excessive wear shall be replaced at Tenant's sole expense upon Lease
termination.
SEE PARAGRAPH 45.
7. TAXES
A. As Additional Rent and in accordance with Paragraph 4D of this Lease,
Tenant shall pay to Landlord, or if Landlord so directs, directly to the Tax
Collector, all Real Property relating to the Premises. In the event the
Premises leased hereunder consist of only a portion of the entire tax parcel,
Tenant shall pay to Landlord Tenant's proportionate share of such real estate
taxes allocated to the leased Premises by square footage or other reasonable
basis as calculated and determined by Landlord. If the tax billing pertains
100% to the leased Premises, and Landlord chooses to have Tenant pay said real
estate taxes directly to the Tax Collector, then in such event it shall be the
responsibility of Tenant to obtain the tax and assessment bills and pay, prior
to delinquency, the applicable
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real property taxes and assessments pertaining to the leased Premises, and
failure to receive a bill for taxes and/or assessments shall not provide a basis
for cancellation of or nonresponsibility for payment of penalties for nonpayment
or late payment by Tenant. The term "Real Property Taxes", as used herein,
shall mean (i) all taxes, assessments, levies and other charges of any kind or
nature whatsoever, general and special, foreseen and unforeseen (including all
installments of principal and interest required to pay any general or special
assessments for public improvements and any increases resulting from
reassessments caused by any change in ownership of the Premises) now or
hereafter imposed by any governmental or quasi-governmental authority or special
district having the direct or indirect power to tax or levy assessments, which
are levied or assessed against, or with respect to the value, occupancy or use
of, all or any portion of the Premises (as now constructed or as may at any time
hereinafter be constructed, altered, or otherwise changed) or Landlord's
interest therein; any improvements located within the Premises (regardless of
ownership); the fixtures, equipment and other property of Landlord, real or
personal, that are an integral part of and located in the Premises; or parking
areas, public utilities, or energy within the Premises; (ii) all charges, levies
or fees imposed by reason of environmental regulation or other governmental
control of the Premises; and (iii) all costs and fees (including reasonable
attorneys' fees) incurred by Landlord in reasonably contesting any Real Property
Tax and in negotiating with public authorities as to any Real Property Tax. If
at any time during the term of this Lease the taxation or assessment of the
Premises prevailing as of the commencement date of this Lease shall be altered
so that in lieu of or in addition to any Real Property Tax described above there
shall be levied, assessed or imposed (whether by reason of a change in the
method of taxation or assessment, creation of a new tax or charge, or any other
cause) an alternate or additional tax or charge (i) on the value, use or
occupancy of the Premises or Landlord's interest therein or (ii) on or measured
by the gross receipts, income or rentals from the Premises, on Landlord's
business of leasing the Premises, or computed in any manner with respect to the
operation of the Premises, then any such tax or charge, however designated,shall
be included within the meaning of the term "Real Property Taxes" for purposes of
this Lease. If any Real Property Tax is based upon property or rents unrelated
to the Premises, then only that part of such Real Property Tax that is fairly
allocable to the Premises shall be included within the meaning of the term "Real
Property Taxes". Notwithstanding the foregoing, the term "Real Property Taxes"
shall not include estate, inheritance, gift or franchise taxes of Landlord or
the federal or state net income tax imposed on Landlord's income from all
sources.
B. TAXES ON TENANT'S PROPERTY Tenant shall be liable for and shall pay
ten days before delinquency, taxes levied against any personal property or trade
fixtures placed by Tenant in or about the Premises. If any such taxes on
Tenant's personal property or trade fixtures are levied against Landlord or
Landlord's property or if the assessed value of the Premises is increased by the
inclusion therein of a value placed upon such personal property or trade
fixtures of Tenant and if Landlord, after written notice to Tenant, pays the
taxes based on such increased assessment, which Landlord shall have the right to
do regardless of the validity thereof, but only under proper protest if
requested by Tenant, Tenant shall upon demand, as the case may be, repay to
Landlord the taxes so levied against Landlord, or the proportion of such taxes
resulting from such increase in the assessment; provided that in any such event
Tenant shall have the right, in the name of Landlord and with Landlord's full
cooperation, to bring suit in any court of competent jurisdiction to recover the
amount of such taxes so paid under protest, and any amount so recovered shall
belong to Tenant.
8. LIABILITY INSURANCE Tenant, at Tenant's expense, agrees to keep in force
during the term of this Lease a policy of comprehensive general liability
insurance for bodily injury and property damage occurring in, on or about the
Premises, including parking and landscaped areas, in the amount of $2,000,000
combined single limit. Such insurance shall be primary and noncontributory as
respects any insurance carried by Landlord. The policy or policies effecting
such insurance shall name Landlord as additional insureds, and shall insure any
liability of Landlord, contingent or otherwise, as respects acts or omissions of
Tenant, its agents, employees or invitees or otherwise by any conduct or
transactions of any said persons in or about concerning the Premises, including
any failure of Tenant to observe or perform any of its obligations hereunder;
shall be issued by an insurance company admitted to transact business in the
State of California; and shall provide that the insurance effected shall not be
canceled, except upon thirty (30) days' prior written notice to Landlord. A
certificate of insurance of said policy shall be delivered to Landlord. If,
during the term of this Lease, in the considered opinion of Landlord's Lender,
insurance advisor, or counsel, the amount of insurance described in this
Paragraph 8 is not adequate, Tenant agrees to increase said coverage to such
reasonable amount as Landlord's Lender, insurance advisor, or counsel shall deem
adequate.
9. TENANT'S PERSONAL PROPERTY INSURANCE AND WORKMAN'S COMPENSATION INSURANCE
Tenant shall maintain a policy or policies of fire and property damage insurance
in "all risk" form with a sprinkler leakage endorsement insuring the personal
property, inventory, trade fixtures, and leasehold
9
improvements within the leased Premises for the full replacement value thereof.
The proceeds from any such policies shall be used for the repair or replacement
of such items so insured.
Tenant shall also maintain a policy or policies of workman's compensation
insurance and any other employee benefit insurance sufficient to comply with all
laws.
10. PROPERTY INSURANCE Landlord shall purchase and keep in force, and as
Additional Rent and in accordance with Paragraph 4D of this Lease, Tenant shall
pay to Landlord Tenant's proportionate share (allocated to the leased Premises
by square footage or other equitable basis as calculated and determined by
Landlord) of the cost of, policy or policies of insurance covering loss or
damage to the Premises (excluding routine maintenance and repairs and incidental
damage or destruction caused by accidents or vandalism for which Tenant is
responsible under Paragraph 7) in the amount of the full replacement value
thereof, providing protection against those perils included within the
classification of "all risks" insurance and flood and/or earthquake insurance,
if available, plus a policy of rental income insurance in the amount of one
hundred (100%) percent of twelve (12) months Basic Rent, plus sums paid as
Additional Rent. If such insurance cost is increased due to Tenant's use of the
Premises, Tenant agrees to pay to Landlord the full cost of such increase.
Tenant shall have no interest in nor any right to the proceeds of any insurance
procured by Landlord for the Premises.
Landlord and Tenant do each hereby respectively release the other, to the
extent in insurance coverage of the releasing party, from any liability for loss
or damage caused by fire or any of the extended casualties included in the
releasing party's insurance policies, irrespective of the cause of such fire or
casualty; provided, however, that if the insurance policy of either releasing
party prohibits such waiver, then this waiver shall not take effect until
consent to such waiver os obtained. If such waiver is prohibited, the insured
party affected shall promptly notify the other party thereof.
11. INDEMNIFICATION Landlord shall not be liable to Tenant and Tenant hereby
waives all claims against Landlord for any injury to or death of any person or
damage to or destruction of property in or about the Premises by or from any
cause whatsoever, including, without limitation, gas, fire, oil, electricity or
leakage of any character from the roof, walls, basement or other portion of the
Premises but excluding, however, the negligence of Landlord, its agents,
servants, employees, invitees, or contractors of which negligence Landlord has
knowledge and reasonable time to correct. Except as to injury to persons or
damage to property the principal cause of which is the negligence of Landlord,
Tenant shall hold Landlord harmless from and defend Landlord against any and all
expenses, including reasonable attorneys' fees, in connection therewith, arising
out of any injury to or death of any person or damage to or destruction of
property occurring in, on or about the Premises, or any part thereof, from any
cause whatsoever.
12. COMPLIANCE Tenant, at its sole cost and expense, shall promptly with all
laws, statutes, ordinances and governmental rules, regulations or requirements
now or hereafter in effect; with the requirements of any board of fire
underwriters or other similar body now or hereafter constituted; and with any
direction or occupancy certificate issued pursuant to law by any public officer;
provided, however, that no such failure shall be deemed a breach of the
provisions if Tenant, immediately upon notification, commences to remedy or
rectify said failure. The judgement of any court of competent jurisdiction or
the admission of Tenant in any action against Tenant, whether Landlord be a
party thereto or not, that Tenant has violated any such law, statute, ordinance
or governmental rule, regulation, requirement, direction or provision, shall be
conclusive of that fact as between Landlord and Tenant. Tenant shall, at its
sole cost and expense, comply with any and all requirements pertaining to said
Premises, of any insurance organization or company, necessary for the
maintenance of reasonable fire and public liability insurance covering
requirements pertaining to said Premises, of any insurance organization or
company, necessary for the maintenance of reasonable fire and public liability
insurance covering the Premises.
13. LIENS Tenant shall keep the Premises free from any liens arising out of
any work performed, materials furnished or obligation incurred by Tenant. In
the event that Tenant shall not, within ten (10) days following the imposition
of such lien, cause the same to be released of record, Landlord shall have, in
addition to all other remedies provided herein and by law, the right, but no
obligation, to cause the same to be released by such means as it shall deem
proper, including payment of the claim giving rise to such lien. All sums paid
by Landlord for such purpose, and all expenses incurred by it in connection
therewith, shall be payable to Landlord by Tenant on demand with interest at the
prime rate of interest as quoted by the Bank of America.
14. ASSIGNMENT AND SUBLETTING Tenant shall not assign, transfer, or
hypothecate the leasehold estate under this Lease, or any interest therein, and
shall not sublet the Premises, or any part thereof, or any right or privilege
appurtenant thereto, or suffer any other person or entity to occupy or use the
Premises, or any portion
10
thereof, without, in each case, the prior written consent of Landlord which
consent will not be unreasonably withheld. As a condition for granting this
consent to any assignment, transfer, or subletting, Landlord may require that
Tenant agrees to pay Landlord, as additional rent, all rents or additional
consideration received by Tenant from its assignees, transferees, or subtenants
in excess of the rent payable by Tenant to Landlord hereunder. Tenant shall, by
thirty (30) days written notice, advise Landlord of its intent to assign or
transfer Tenant's interest in the Lease or sublet the Premises or any portion
thereof for any part of the term hereof. Within thirty (30) days after receipt
of said written notice, Landlord may, in its sole discretion, elect to terminate
this Lease as to the portion of the Premises described in Tenant's notice on the
date specified in Tenant's notice by giving written notice of such election to
terminate. If no such notice to terminate is given to Tenant within said thirty
(30) day period, Tenant may proceed to locate an acceptable sublessee, assignee,
or other transferee for presentment to Landlord for Landlord's approval, all in
accordance with the terms, covenants, and conditions of this paragraph 14. If
Tenant intends to sublet the entire Premises and Landlord elects to terminate
this Lease, this Lease shall be terminated on the date specified in Tenant's
notice. If, however, this Lease shall terminate pursuant to the foregoing with
respect to less than all the Premises, the rent, as defined and reserved
hereinabove shall be adjusted on a pro rata basis to the number of square feet
retained by Tenant, and this Lease as so amended shall continue in full force
and effect. In the event Tenant is allowed to assign, transfer or sublet the
whole or any part of the Premises, with the prior written consent of Landlord,
no assignee, transferee or subtenant shall assign or transfer this Lease, either
in whole or in part, or sublet the whole or any part of the Premises, without
also having obtained the prior written consent of Landlord. A consent of
Landlord to one assignment, transfer, hypothecation, subletting, occupation or
use by any other person shall not release Tenant from any of Tenant's
obligations hereunder or be deemed to be a consent to any subsequent similar or
dissimilar assignment, transfer, hypothecation, subletting, occupation or use by
any other person. Any such assignment, transfer, hypothecation, subletting,
occupation or use without such consent shall be void and shall constitute a
breach of this Lease by Tenant and shall, at the option of Landlord exercised by
written notice to Tenant, terminate this Lease. The leasehold estate under this
Lease shall not, nor shall any interest therein, be assignable for any purpose
by operation of law without the written consent of Landlord. As a condition to
its content, Landlord may require Tenant to pay all expenses in connection with
the assignment, and Landlord may require Tenant's assignee or transferee (or
other assignees or transferees) to assume in writing all of the obligations
under this Lease and for Tenant to remain liable to Landlord under the Lease.
15. SUBORDINATION AND MORTGAGES In the event Landlord's title or leasehold
interest is now or hereafter encumbered by a deed of trust, upon the interest of
Landlord in the land and buildings in which the demised Premises are located, to
secure a loan from a lender (hereinafter referred to as "Lender") to Landlord,
Tenant shall, at the request of Landlord or Lender, execute in writing an
agreement subordinating its rights under this Lease to the lien of such deed of
trust, or, if so requested, agreeing that the lien of Lender's deed of trust
shall be or remain subject and subordinate to the rights of Tenant under this
Lease. Notwithstanding any such subordination, Tenant's possession under this
Lease shall not be disturbed if Tenant is not in default and so long as Tenant
shall pay all rent and observe and perform all of the provisions set forth in
this Lease.
16. ENTRY BY LANDLORD Landlord reserves, and shall at all reasonable
times after at least 24 hours notice (except in emergencies) have, the right to
enter the Premises to inspect then; to perform any services to be provided by
Landlord hereunder, to make repairs or provide any services to a contiguous
tenant(s); to submit the Premises to prospective purchasers, mortgagors or
tenants; to post notices of nonresponsibility; and to alter, improve or repair
the Premises or other parts of the building, all without abatement of rent, and
may erect scaffolding and other necessary structures in or through the Premises
where reasonably required by the character of the work to be performed;
provided, however that the business of Tenant shall be interfered with to the
least extent that is reasonably practical. Any entry to the Premises by
Landlord for the purposes provided for herein shall not under any circumstances
be construed or deemed to be a forcible or unlawful entry into or a detainer of
the Premises or an eviction, actual or constructive, of Tenant from the Premises
or any portion thereof.
17. BANKRUPTCY AND DEFAULT The commencement of a bankruptcy action or
liquidation action or reorganization action or insolvency action or an
assignment of or by Tenant for the benefit of creditors, or any similar action
taken by Tenant, or the insolvency of Tenant, shall, at Landlord's option,
constitute a breach of this Lease by Tenant. If the trustee or receiver
appointed to serve during a bankruptcy, liquidation, reorganization, insolvency
or similar action elects to reject the Tenant's unexpired Lease, the trustee or
receiver shall notify Landlord in writing of its election within thirty (30)
days after an order for relief in a liquidation action or within thirty (30 days
after the commencement of any action.
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Within thirty (30) days after court approval of the assumption of this
Lease, the trustee or receiver shall cure (or provide adequate assurance to the
reasonable satisfaction of Landlord that the trustee or receiver shall cure) any
and all previous defaults under the unexpired Lease and shall compensate
Landlord for all actual pecuniary loss and shall provide adequate assurance of
future performance under said Lease to the reasonable satisfaction of Landlord.
Adequate assurance of future performance, as used herein, includes, but shall
not be limited to: (i) assurance of source and payment of rent, and other
consideration due under this Lease; (ii) assurance that the assumption or
assignment of this Lease will not breach substantially any provision, such as
radius, location, use, or exclusivity provision, in any agreement relating to
the above described Premises.
Nothing contained in this section shall affect the existing right of the
Landlord to refuse to accept an assignment upon commencement of or in connection
with a bankruptcy, liquidation, reorganization or insolvency action or an
assignment of Tenant for the benefit of creditors or other similar act. Nothing
contained in this Lease shall be construed as giving or granting or creating an
equity in the demised Premises to Tenant. In no event shall the leasehold
estate under this Lease, or any interest therein, be assigned by voluntary or
involuntary bankruptcy proceeding without the prior written consent of Landlord.
In no event shall this Lease or any rights or privileges hereunder be an asset
of Tenant under any bankruptcy, insolvency or reorganization proceedings.
The failure to perform or honor any covenant, condition or representation
made under this Lease shall constitute a default hereunder by Tenant upon
expiration of the appropriate grace period hereinafter provided. Tenant shall
have a period of five (5) days from the date of written notice from Landlord
within which to cure any default in the payment of rental or adjustment thereto.
Tenant shall have a period of thirty (30) days from the date of written notice
from Landlord within which to cure any other default under this Lease; provided,
however, that if the nature of Tenant's failure is such that more than thirty
(30) days is reasonably required to cure the same, Tenant shall not be in
default so long as Tenant commences performance with in such thirty (30) day
period and thereafter prosecutes the same to completion. Upon an uncured
default of this Lease by Tenant, Landlord shall have the following rights and
remedies in addition to any other rights or remedies available to Landlord at
law or in equity:
(a) The rights and remedies provided for by California Civil Code Section
1951.2, including but not limited to, recovery of the worth at the time of award
of the amount by which the unpaid rent for the balance of the term after the
time of award exceeds the amount of rental loss for the same period that Tenant
proves could be reasonably avoided, as computed pursuant to subsection (b) of
said Section 1951.2. Any proof by Tenant under subparagraphs (2) and (3) of
Section 1951.2 of the California Civil Code of the amount of rental loss that
could reasonably avoided shall be made in the following manner: Landlord and
Tenant shall each select a licensed real estate broker in the business of
renting property of the same type and use as the Premises and in the same
geographic vicinity. Such two real estate brokers shall select a third licensed
real estate broker, and the three licensed real estate brokers so selected shall
determine the amount of rental loss that could be reasonably avoided from the
balance of the term of this Lease after the time of award. The decision of the
majority of said licensed real estate brokers shall be final and binding upon
the parties hereto.
(b) The rights and remedies provided by California Civil Code Section
which allows Landlord to continue the Lease in effect and to enforce all of its
rights and remedies under the Lease, including the right to recover rent as it
becomes due, for so long as Landlord does not terminate Tenant's right to
possession; acts of maintenance or preservation, efforts to relet the Premises,
or the appointment of a receiver upon Landlord's initiative to protect its
interest under this Lease shall not constitute a termination of Tenant's right
to possession.
(c) The right to terminate this Lease by giving notice to Tenant in
accordance with applicable law.
(d) To the extent permitted by law the right and power, to enter the
Premises and remove therefrom all persons and property, to store such property
in a public warehouse or elsewhere at the cost of and for the account of Tenant,
and to sell such property and apply such proceeds therefrom pursuant to
applicable California law. Landlord, may from time to time sublet the Premises
or any part thereof for such term or terms (which may extend beyond the term of
this Lease) and at such rent and such other terms as Landlord in its reasonable
sole discretion may deem advisable, with the right to make alterations and
repairs to the Premises. Upon each subletting, (i) Tenant shall be immediately
liable to pay Landlord, in addition to indebtedness other than rent due
hereunder, the reasonable cost of such subletting, including, but not limited
to, reasonable attorneys' fees, and any real estate commissions actually paid,
and the cost of such reasonable alterations and repairs incurred by Landlord and
the amount, if any, by which the rent hereunder for the period of such
subletting (to the extent such period does not exceed the term hereof) exceeds
the amount to be paid as rent for the Premises for such period or (ii) at the
option of Landlord, rents received from subletting shall be applied first to
payment of indebtedness other than rent due hereunder from Tenant to Landlord;
second, to the payment of any costs of such subletting and of such alterations
and repairs; third to payment of rent due and unpaid hereunder; and the residue,
if any, shall be held by Landlord and applied in payment of future rent as the
same becomes due hereunder. If Tenant has been credited with any rent to be
received by such subletting under option (i) and such rent shall not be promptly
paid to Landlord by the subtenant(s), or if such rentals
12
received from such subletting under option (ii) during any month be less than
that to be paid during that month by Tenant hereunder, Tenant shall pay any such
deficiency to Landlord. Such deficiency shall be calculated and paid monthly.
No taking possession of the Premises by Landlord, shall be construed as an
election on its part to terminate this Lease unless a written notice of such
intention be given to Tenant. Notwithstanding any such subletting without
termination, Landlord at any time hereafter elect to terminate this Lease for
such previous breach.
(e) The right to have receiver appointed for Tenant upon application by
Landlord, to take possession of the Premises and to apply any rental collected
from the Premises and to exercise all other rights and remedies granted to
Landlord pursuant to subparagraph d above.
18. ABANDONMENT Tenant shall not vacate or abandon the Premises at any time
during the term of this Lease (except that Tenant may vacate so long as it pays
rent, provides an on-site security guard during normal business hours from
Monday through Friday, and otherwise performs its obligations hereunder) and if
Tenant shall abandon, vacate or surrender said Premises, or be dispossessed by
the process of law, or otherwise, any personal property belonging to Tenant and
left on the Premises shall be deemed to be abandoned, at the option of Landlord,
except such property as may be mortgaged to Landlord.
19. DESTRUCTION In the event the Premises are destroyed in whole or in part
from any cause, except for routine maintenance and repairs and incidental damage
and destruction caused from vandalism and accidents for which Tenant is
responsible under Paragraph 6, Landlord may, at its option:
(a) Rebuild or restore the Premises to their condition prior to the damage
or destruction, or
(b) Terminate this Lease. (providing that the Premises is damaged to the
extent of 33 1/3% of the replacement cost).
If Landlord does not give Tenant notice in writing within thirty (30) days
from the destruction of the Premises of its election to either rebuild and
restore them, or to terminate this Lease, Landlord shall be deemed to have
elected to rebuild or restore them, in which event Landlord agrees, at its
expense, promptly to rebuild or restore the Premises to their condition prior to
the damage or destruction. Tenant shall be entitled to a reduction in rent
while such repair is being made in the proportion that the area of the Premises
rendered untenantable by such damage bears to the total area of the Premises.
If Landlord initially estimates that the rebuilding or restoration will exceed
180 days or if Landlord does not complete the rebuilding or restoration within
one hundred eighty (180) days following the date of destruction (such period of
time to be extended for delays caused by the fault or neglect of Tenant or
because of Acts of God, acts of public agencies, labor disputes, strikes, fires,
freight embargos, rainy or stormy weather, inability to obtain materials,
supplies or fuels, acts of contractors or subcontractors, or delay of the
contractors or subcontractors due to such causes or other contingencies beyond
the control of Landlord), then Tenant shall have the right to terminate this
Lease by giving fifteen (15) days prior written notice to Landlord.
Notwithstanding anything herein to the contrary, Landlord's obligation to
rebuild or restore shall be limited to the building and interior improvements
constructed by Landlord as they existed as of the commencement date of the Lease
and shall not include restoration of Tenant's trade fixtures, equipment,
merchandise, or any improvements, alterations or additions made by Tenant to the
Premises, which Tenant shall forthwith replace or fully repair at Tenant's sole
cost and expense provided this Lease is not canceled according to the
provisions above.
Unless this Lease is terminated pursuant to the foregoing provisions, this
Lease shall remain in full force and effect. Tenant hereby expressly waives the
provisions of Section 1932, Subdivision 2, in Section 1933, Subdivision 4 of the
California Civil Code.
In the event that the building in which the Premises are situated is
damaged or destroyed to the extent of not less than 33% of the replacement cost
thereof, Landlord may elect to terminate this Lease, whether the Premises be
injured or not. In the event the destruction of the Premises is caused by
Tenant, Tenant shall pay deductible portion of Landlord's insurance proceeds.
20. EMINENT DOMAIN If all or any part of the Premises shall be taken by any
public or quasi-public authority under the power of eminent domain or conveyance
in lieu thereof, this Lease shall terminate as to any portion of the Premises so
taken or conveyed on the date when title vests in the condemnor, and Landlord
shall be entitled to any and all payment, income, rent, award, or any interest
therein whatsoever which may be paid or made on connection with such taking or
conveyance, and Tenant shall have no claim against Landlord or otherwise for the
value of any unexpired term of this Lease. Notwithstanding the foregoing
paragraph, any compensation specifically awarded Tenant for loss of business,
Tenant's personal property, moving cost or loss of goodwill, shall be and remain
the property of Tenant.
If any action or proceeding is commenced for such taking of the Premises
or any part thereof, or if Landlord is advised in writing by an entity or body
having the right or power of condemnation of its intention to condemn
13
the premises or any portion thereof, then Landlord shall have the right to
terminate this Lease by giving Tenant written notice thereof within sixty (60)
days of the date of receipt of said written advice, or commencement of said
action or proceeding, or taking conveyance, which termination shall take place
as of the first to occur of the last day of the calendar month next following
the month in which such notice is given or the date on which title to the
Premises shall vest in the condemnor.
In the event of such a partial taking or conveyance of the Premises, if
the portion of the Premises taken or conveyed is so substantial that the Tenant
can no longer reasonably conduct its business, Tenant shall have the privilege
of terminating this Lease within sixty (60) days from the date of such taking or
conveyance, upon written notice to Landlord of its intention so to do, and upon
such notice of this Lease shall terminate on the last day of the calendar month
next following the month in which such notice is given, upon payment by Tenant
of the rent from the date of such taking or conveyance to the date of
termination.
If a portion of the Premises be taken by condemnation or conveyance in
lieu thereof and neither Landlord nor Tenant shall terminate this Lease as
provided herein, this Lease shall continue in full force and effect as to the
part of the Premises not so taken or conveyed, and the rent herein shall be
apportioned as of the date of such taking or conveyance so that thereafter the
rent to be paid by Tenant shall be in the ratio that the area of the portion of
the Premises not so taken or conveyed to the total area of the Premises prior to
such taking.
21. SALE OR CONVEYANCE BY LANDLORD In the event of a sale or conveyance of
the Premises or any interest therein, by any owner of the reversion then
consulting Landlord, the transferor shall thereby be released from any further
liability upon any of the terms, covenants or conditions (express or implied)
herein contained in favor of Tenant, and in such event, insofar as such transfer
is concerned, Tenant agrees to look solely to the responsibility of the
successor in interest of such a transferor in and to the Premises and this
Lease. This Lease shall not be affected by any such sale or conveyance, and
Tenant agrees to attorn to the successor in interest of such transferor.
22. ATTORNMENT TO LENDER OR THIRD PARTY In the event the interest of
Landlord in the land and buildings in which the leased Premises are located
(whether such interest of Landlord is a fee title interest or a leasehold
interest) is encumbered by deed of trust, and such interest is acquired by the
lender or any third party through judicial foreclosure or by exercise of a power
of sale at private trustee's foreclosure sale, Tenant hereby agrees to attorn to
the purchaser at any such foreclosure sale and to recognize such purchaser as
the Landlord under this Lease. In the event the lien of the deed of trust
securing the loan from a lender to Landlord is prior and paramount to the Lease,
this Lease shall nonetheless continue in full force and effect for the remainder
of the unexpired term hereof, at the same rental herein reserved and upon all
the other terms, conditions and covenants herein contained.
23. HOLDING OVER Any holding over by Tenant after expiration or other
termination of the term of this Lease with the written consent of Landlord
delivered to Tenant shall not constitute a renewal or extension of the Lease or
give Tenant any rights in or to the leased Premises except as expressly provided
in this Lease. Any holding over after the expiration or other termination of
the term of this Lease, with consent of Landlord, shall be construed to be a
tenancy from month to month, on the same terms and conditions herein specified
insofar as applicable except that the monthly Basic Rent shall be increased to
an amount equal to one hundred fifty (150%) percent of the monthly Basic Rent
required during the last month of the Lease term.
24. CERTIFICATE OF ESTOPPEL Tenant shall at any time upon not less than ten
(10) days prior written notice to Landlord execute, acknowledge and deliver to
Landlord a statement in writing (i) certifying 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) and the date to which the rent and other charges are paid in
advance, if any, and (ii) acknowledging that there are not, to Tenant's
knowledge, any uncured defaults on the part of Landlord hereunder, or specifying
such defaults, if any, are claimed. Any such statement may be conclusively
relied upon by any prospective purchaser or encumbrancer of the Premises.
Tenant's failure to deliver such statement within such time shall be conclusive
upon Tenant that this Lease is in full force and effect, without modification
except as may be represented by Landlord; that there are no uncured defaults in
Landlord's performance, and that not more than one month's rent has been paid in
advance.
25. CONSTRUCTION CHANGES It is understood that the description of the
Premises and the location of ductwork, plumbing and other facilities therein are
subject to such minor changes as Landlord or Landlord's architect determines to
be desirable in the course of construction of the Premises, and no such changes
shall affect this Lease
14
or entitle Tenant to any reduction of rent hereunder or result in any liability
of Landlord to Tenant. Landlord does not guarantee the accuracy of any drawings
supplied to Tenant and verification of the accuracy of such drawings rests with
Tenant.
26. RIGHT OF LANDLORD TO PERFORM All terms, covenants and conditions of this
Lease to be performed or observed by Tenant shall be performed or observed by
Tenant at Tenant's sole cost and expense and without any reduction of rent. If
Tenant shall fail to pay any sum of money, or other rent, required to be paid
by it hereunder or shall fail to perform any other term or covenant hereunder on
its part to be performed, and such failure shall continue for five (5) days
after written notice thereof by Landlord, Landlord, without waiving or releasing
Tenant from any obligation of Tenant hereunder, may, but shall not be obligated
to, make any such payment or perform other any other term or covenant on
Tenant's part to be performed. All sums so paid by Landlord and all necessary
costs of such performance by Landlord together with interest thereon at the rate
of the prime rate of interest per annum as quoted by the Bank of America from
the date of such payment on performance by Landlord, shall be paid (and Tenant
covenants to make such payment) to Landlord on demand by Landlord, and Landlord
shall have (in addition to any other right or remedy of Landlord) the same
rights and remedies in the event of nonpayment by Tenant as in the case of
failure by Tenant in the payment of rent hereunder.
27. ATTORNEYS' FEES
A. In the event that either Landlord or Tenant should bring suit for the
possession of the Premises, for the recovery of any sum due under this Lease, or
because of the breach of any provision of this Lease, or for any other relief
against the other party hereunder, then all costs and expenses, including
reasonable attorneys' fees, incurred by the prevailing party therein shall be
paid by the other party, which obligation on the part of the other party shall
be deemed to have accrued on the date of the commencement of such action and
shall be enforceable whether or not the action is prosecuted to judgement.
B. Should Landlord be named as a defendant in any suit against Tenant in
connection with or arising out of Tenant's occupancy hereunder, Tenant shall pay
to Landlord its costs and expenses incurred in such suit, including a reasonable
attorneys' fee.
28. WAIVER The waiver by either party of the other party's failure to
perform or observe any term, covenant or condition herein contained to be
performed or observed by such waiving party shall not be deemed to be a waiver
of such term, covenant or condition or condition or of any subsequent failure of
the party failing to perform or observe the same or any other such term,
covenant or condition therein contained, and no custom or practice which may
develop between the parties hereto during the term hereof shall be deemed a
waiver of, or in any way affect, the right of either party to insist upon
performance and observance by the other party in strict accordance with the
terms hereof.
29. NOTICES All notices, demands, requests, advises or designations which
may be or are required to be given by either party to the other hereunder shall
be in writing. All notices, demands, requests, advises or designations by
Landlord to Tenant shall be sufficiently given, made or delivered if personally
served on Tenant by leaving the same at the Premises of if sent by United States
certified or registered mail, postage prepaid, addressed to Tenant. All
notices, demands, requests, advices or designations by Tenant to Landlord shall
be sent by United States certified or registered mail, postage prepaid,
addressed to Landlord at its offices at PEERY/ARRILLAGA, 2560 COLLEGE BOULEVARD,
#101, SANTA CLARA, CA 95054. Each notice, request, demand, advice or
designation referred to in this paragraph shall be deemed received on the date
of the personal service or mailing thereof in the manner herein provided, as the
case may be.
30. EXAMINATION OF LEASE Submission of this instrument for examination or
signature by Tenant does not constitute a reservation of or option for a lease,
and this instrument is not effective as a lease or until its execution and
delivery by both Landlord and Tenant.
31. DEFAULT BY LANDLORD Landlord shall not be in default unless Landlord
fails to perform obligations required of Landlord within a reasonable time, but
in no event earlier than thirty (30 days after written notice by Tenant to
Landlord and to the holder of any first mortgage or deed of trust covering the
Premises whose name and address shall have heretofore been furnished to Tenant
in writing, specifying wherein Landlord has failed to perform such obligations;
provided, however, that if the nature of Landlord's obligations is such that
more than thirty (30) days are required for performance, then Landlord shall not
be in default if Landlord commences performance within such thirty (30) day
period and thereafter diligently prosecuted the same to completion.
15
32. CORPORATE AUTHORITY If Tenant is a corporation (or a partnership), each
individual executing this Lease on behalf of said corporation (or partnership)
represents and warrants that he is duly authorized to execute and deliver this
Lease on behalf of said corporation (or partnership) in accordance with the
by-laws of said corporation (or partnership in accordance with the partnership
agreement) and that this Lease is binding upon said corporation (or partnership)
in accordance with its terms. If Tenant is a corporation, Tenant shall, within
thirty (30) days after execution of this Lease, deliver to Landlord a certified
copy of the resolution of the Board of Directors of said corporation authorizing
or ratifying the execution of this Lease.
33. LIMITATION OF LIABILITY In consideration of the benefits accruing
hereunder, Tenant and all successors and assigns covenant and agree that, in
the event of any actual or alleged failure, breach or default hereunder by
Landlord:
(a) the sole and exclusive remedy shall be against Landlord and Landlord's
assets;
(b) no partner of Landlord shall be sued or named as a party in any suit
or action (except as may be necessary to secure jurisdiction of the
partnership);
(c) no service of process shall be made against any partner of Landlord
(except as may be necessary to secure jurisdiction of the partnership);
(d) no partner of Landlord shall be required to answer or otherwise plead
to any service of process;
(e) no judgement will be taken against any partner of Landlord;
(f) any judgement taken against any partner of Landlord may be vacated and
set aside at any time without hearing;
(g) no writ of execution will ever be levied against the assets of any
partner of Landlord;
(h) these covenants and agreements are enforceable both by Landlord and
also by any partner of Landlord.
Tenant agrees that each of the foregoing covenants and agreements shall be
applicable to any covenant or agreement either expressly contained in this
Lease or imposed by statute or at common law.
34. SIGNS No sign, placard, picture, advertisement, name or notice shall be
inscribed, displayed or printed or affixed on to or to any part of the outside
of the Premises or any exterior windows of the Premises without written consent
of Landlord first had and obtained and Landlord shall have the right to remove
any such sign, placard, picture, advertisement, name or notice without notice to
and at the expense of Tenant. If Tenant is allowed to print or affix or in any
way place a sign in, on, or about the Premises, upon expiration or sooner
termination of this Lease, Tenant at Tenant's sole cost and expense shall both
remove such sign and repair all damage in such a manner as to restore all
aspects of the appearance of the Premises to the condition prior to the
placement of said sign.
All approved signs or lettering on outside doors shall be printed, affixed
or inscribed at the expense of Tenant by a person approved of by Landlord.
Tenant shall not place anything or allow anything to be placed near the
glass of any window, door partition or wall which may appear unsightly from
outside the Premises. Tenant shall have the right to place Tenant's business
name, building number and street address on the exterior windows of the
Premises. In addition, Tenant shall have the right to use twenty five percent
(25%) of the building monument sign. Tenant shall comply with any government
rules and regulations regarding signage. Tenant's sign shall be provided for by
Tenant at Tenant's sole cost and expense.
35. MISCELLANEOUS AND GENERAL PROVISION
A. USE OF BUILDING NAME. Tenant shall not, without the written consent
of Landlord, use the name of the building for any purpose other than as the
address of the business conducted by Tenant in the Premises.
B. CHOICE OF LAW; SEVERABILITY. This Lease shall in all respects be
governed by and construed in accordance with the laws of State of California.
If any provision of this Lease shall be invalid, unenforceable or in effective
for any reason whatsoever, all other provisions hereof shall be and remain in
full force and effect.
C. DEFINITION OF TERMS. The term "Premises" includes the space leased
hereby and any improvements now or hereafter installed therein or attached
thereto. The term "Landlord" or any pronoun used in place thereof includes the
plural as well as the singular and the successors and assigns of Landlord. The
term "Tenant" or any pronoun used in place thereof includes the plural as well
as the singular and individuals, firms, associations, partnerships and
corporation, and their and each of their respective heirs, executors,
administrators, successors and permitted assigns, according to the context
hereof, and the provisions of this Lease shall inure to the benefit of and bind
such heirs, executors, administrators, successors and permitted assigns.
16
The term "person" includes the plural as well as the singular and
individuals, firms, associations, partnerships and corporations. Words used in
any gender include other genders. If there be more than one Tenant the
obligations of Tenant hereunder are joint and several. The paragraph headings
of this Lease are for convenience of reference only and shall have no effect
upon the construction or interpretation of any provision hereof.
D. TIME OF ESSENCE. Time is of the essence of this Lease and of each
and all of its provisions.
E. QUITCLAIM. At the expiration or earlier termination of this Lease,
Tenant shall execute, acknowledge and deliver to Landlord, within ten (10) days
after written demand from Landlord to Tenant, any quitclaim deed or other
document required by any reputable title company, licensed to operate in the
State of California, to remove the cloud or encumbrance created by this Lease
from the real estate property of which Tenant's Premises are a part.
F. INCORPORATION OF PRIOR AGREEMENTS; AMENDMENTS. This instrument along
with any exhibits and attachments hereto constitutes the entire agreement
between Landlord and Tenant relative to the Premises and this agreement and the
exhibits and attachments may be altered, amended or revoked only by an
instrument in writing signed by both Landlord and Tenant. Landlord and Tenant
agree hereby that all prior or contemporaneous oral agreements between and among
themselves and their agents or representatives relative to the leasing of the
Premises are merged in or revoked by this agreement.
G. RECORDING. Neither Landlord nor Tenant shall record this Lease or a
short form memorandum hereof without the consent of the other.
H. AMENDMENTS FOR FINANCING. Tenant further agrees to execute any
amendments required by a lender to enable Landlord to obtain financing, so long
as Tenant's rights hereunder are not substantially affected.
I. ADDITIONAL PARAGRAPHS. Paragraphs 39 through 49 are added hereto and
are included as a part of this Lease.
J. CLAUSES, PLATS AND RIDERS. Clauses, plats and riders, if any, signed
by Landlord and Tenant and endorsed on or affixed to this Lease are a part
hereof.
K. DIMINUTION OF LIGHT, AIR OR VIEW. Tenant covenants and agrees that
no diminution or shutting off of light, air or view by any structure which may
be hereafter erected (whether or not by Landlord) shall in any way affect this
Lease, entitle Tenant to any reduction of rent hereunder or result in any
liability of Landlord to Tenant.
IN WITNESS WHEREOF, Landlord and Tenant have executed and delivered this
Lease as of the day and year first above written.
LANDLORD: TENANT:
JOHN ARRILLAGA SEPARATE PROPERTY TRUST ALPHA 1 BIOMEDICALS, INC.,
a Delaware corporation
By /S/JOHN ARRILLAGA By /S/R.J. LANHAM
------------------------- ------------------------
John Arrillaga, Trustee
Title: Vice President, Finance
RICHARD T. PEERY SEPARATE PROPERTY TRUST Type or Print Name R.J. LANHAM
By /S/RICHARD T. PEERY
--------------------------------
Richard T. Peery, Trustee
17
Paragraphs 36 through 46 to Lease Agreement Dated January 22, 1993, By and
Between John Arrillaga and Richard T. Peery Separate Property Trusts, as
Landlord, and Alpha 1 Biomedicals, a California corporation, as Tenant for
15,018+- Square Feet of Space Located at 810 W. Maude, Ste. 101, Sunnyvale,
California.
36. BASIC RENT In accordance with Paragraph 4(a) herein, the total aggregate
sum of EIGHT HUNDRED FIFTY SIX THOUSAND TWENTY SIX AND NO/100 DOLLARS
($856,026.00), shall be payable as follows:
For the period March 1, 1993 through August 31, 1993 No Basic Rent will
be due; however, Tenant will be responsible for all additional rent expenses as
outlined in Paragraph 4(d).
On September 1, 1993, the sum of TWELVE THOUSAND SEVEN HUNDRED SIXTY
FIVE AND 30/100 DOLLARS ($12,765.30) shall be due, and a like sum due on the
first day of each month thereafter, through and including August 1, 1994.
On September 1, 1994, the sum of THIRTEEN THOUSAND FIVE HUNDRED SIXTEEN
AND 20/100 DOLLARS ($13,516.20) shall be due, and a like sum due on the first
day of each month thereafter, through and including August 1, 1995.
On September 1, 1995, the sum of FOURTEEN THOUSAND TWO HUNDRED SIXTY
SEVEN AND 10/100 DOLLARS ($14,267.10) shall be due, and a like sum due on the
first day of each month thereafter, through and including August 1, 1996.
On September 1, 1996, the sum of FIFTEEN THOUSAND EIGHTEEN AND NO/100
DOLLARS ($15,018.00) shall be due, and a like sum due on the first day of each
month thereafter, through and including August 1, 1997.
On September 1, 1997, the sum of FIFTEEN THOUSAND SEVEN HUNDRED SIXTY
EIGHT AND 90/100 DOLLARS ($15,768.90) shall be due, and a like sum due on the
first day of each month thereafter, through and including August 1, 1998; or
until the entire aggregate sum of EIGHT HUNDRED FIFTY SIX THOUSAND TWENTY SIX
AND NO/100 DOLLARS ($856,026.00) has been paid.
37. "AS-IS" BASIS It is hereby agreed that the Premises leased hereunder is
leased strictly on an "as-is" basis and in its present condition, and in the
configuration as shown on Exhibit B attached hereto, and by reference made a
part hereof. Landlord shall not be required to make, nor be responsible for any
cost, in connection with any repair, restoration, and/or improvement to the
Premises in order for this Lease to commence. Landlord makes no warranty or
representation of any kind or nature whatsoever as to the condition or repair of
the Premises, nor as to the use or occupancy which may be made thereof.
38. CONSENT Whenever the consent of one party to the other is required
hereunder, such consent shall not be unreasonably withheld.
39. RULES AND REGULATIONS AND COMMON AREA Subject to the terms and
conditions of this Lease and such Rules and Regulations as Landlord may from
time to time Prescribe, Tenant and Tenant s employees, invitees and customers
shall in common with other occupants of the Parcel/Building in which the
premises are located, and their respective employees, invitees and customers,
and others entitled to the use thereof, have the non-exclusive right to use the
access roads, parking areas, and facilities provided and designated by Landlord
for the general use and convenience of the occupants of the Parcel/Building in
which the Premises are located, which areas and facilities are referred to
herein as "Common Area". This right shall terminate upon the termination of
this Lease. Landlord reserves the right from time to time to make changes in
the shape, size, location, amount and extent of Common Area. Landlord further
reserves the right to promulgate such reasonable rules and regulations relating
to the use of the Common Area, and any part or parts thereof, as Landlord may
deem appropriate for the best interests of the occupants of the Parcel/Building.
Such Rules and Regulations may be amended by Landlord from time to time, with or
without advance notice, and all amendments shall be effective upon delivery of a
copy to Tenant. Landlord shall not be responsible to Tenant for the
non-performance by any other tenant or occupant of the Parcel/Building of any of
said Rules and Regulations.
18
Landlord shall operate, manage and maintain the Common Area. The manner in
which the Common Area shall be maintained and the expenditures for such
maintenance shall be at the discretion of Landlord.
40. EXPENSES OF OPERATION, MANAGEMENT, AND MAINTENANCE OF THE COMMON
AREAS OF THE PARCEL AND BUILDING IN WHICH THE PREMISES ARE LOCATED As
Additional Rent and in accordance with Paragraph 4D of this Lease, Tenant shall
pay to Landlord Tenant's proportionate share (calculated on a square footage or
other equitable basis as calculated by Landlord) of all expenses of operation,
management, maintenance and repair of the Common Areas of the Parcel/Building,
which Landlord shall undertake, including, but not limited to, license, permit,
and inspection fees; security; utility charges associated with exterior
landscaping and lighting (including water and sewer charges); all charges
incurred in the maintenance of landscaped areas, lakes, parking lots, sidewalks,
driveways, maintenance, repair and replacement of all fixtures and electrical,
mechanical and plumbing systems; structural elements and exterior surfaces of
the buildings; salaries and employee benefits of personnel and payroll taxes
applicable thereto; supplies, materials, equipment and tools; the cost of
capital expenditures which have the effect of reducing operating expenses,
provided, however, that in the event Landlord makes such capital improvements,
Landlord may amortize its investment in said improvements (together with
interest at the rate of fifteen (15%) percent per annum on the unamortized
balance) as an operating expense in accordance with standard accounting
practices, provided, that such amortization is not at a rate greater than the
anticipated savings in the operating expenses.
Notwithstanding anything to the contrary in Paragraph 7 or 43, in the event the
entire roof membrane over the Premises leased by Tenant is replaced, at Tenant's
sole cost and expense, the following provisions (i) through (iii) shall apply
from the date immediately following said replacement: (i) Tenant shall be
responsible for paying 100% of any and all costs of maintenance, repairs and
replacement of said roof membrane; (ii) Tenant shall pay its pro rata share of
any such expense for the roof membrane covering the common area (if any) of the
building and (iii) Tenant shall not be responsible for paying for any such
expense for the maintenance, repair and or replacement of the roof covering the
portion of the building not leased by Tenant or which area is not part of the
common area of the building, provided, however, if Tenant causes damage to the
roof membrane covering the building or the common area, Tenant shall pay 100% of
the cost to repair or replace the roof membrane.
"Additional Rent" as used herein shall not include Landlord's debt repayments;
interest on charges, expenses directly or indirectly incurred by Landlord for
the benefit of any other tenant; cost for the installation of partitioning or
any other tenant improvements; cost of attracting tenants; depreciation;
interest; or executive salaries.
As Additional Rent and in accordance with Paragraph 4D of this Lease, Tenant
shall pay its proportionate share (calculated on a square footage or other
equitable basis as calculated by Landlord) of the cost of operation (including
common utilities), management, maintenance, and repair of the building
(including common areas such as lobbies, restrooms, janitor's closets, hallways,
elevators, mechanical and telephone rooms, stairwells, entrances, spaces above
the ceilings and janitorization of said common areas) in which the Premises are
located. The maintenance items herein referred to include, but are not limited
to, all windows, window frames, plate glass, glazing, truck doors, main plumbing
systems of the building (such as water drain lines, sinks, toilets, faucets,
drains, showers and water fountains), main electrical systems (such as panels
and conduits), heating and airconditioning systems (such as compressors, fans,
air handlers, ducts, boilers, heaters), store fronts, roofs, downspouts,
building common area interiors (such as wall coverings, window coverings, floor
coverings and partitioning), ceilings, building exterior doors, skylights (if
any), automatic fire extinguishing systems, and elevators (if any); license,
permit and inspection fees; security, salaries and employee benefits of
personnel and payroll taxes applicable thereto; supplies, materials, equipment
and tools; the cost of capital expenditures which have the effect of reducing
operating expenses, provided, however, that in the event Landlord makes such
capital improvements, Landlord may amortize its investment in said improvements
(together with interest at the rate of fifteen (15%) percent per annum on the
unamortized balance) as an operating expense in accordance with standard
accounting practices, provided, that such amortization is not at a rate greater
than the anticipated savings in the operating expenses. Tenant hereby waives
all rights hereunder, and benefits of, subsection 1 of Section 1932 and Sections
1941 and 1942 of the California Civil Code and under any similar law, statute or
ordinance now or hereafter in effect.
Notwithstanding anything to the contrary in the Lease, in no event shall Tenant
have any obligation to incur, pay directly, or reimburse Landlord for, all or
any portion of the claims, costs, losses, fees, charges, maintenance costs,
repair costs, and expenses (collectively "Costs") for which Landlord has billed
and or has the right to bill another Tenant.
19
41. UTILITIES OF THE BUILDING IN WHICH THE PREMISES ARE LOCATED As
Additional Rent and in accordance with Paragraph 4D of this Lease Tenant shall
pay its proportionate share (calculated on a square footage or other equitable
basis as calculated by Landlord) of the cost of all utility charges such as
water, gas, electricity, telephone, telex and other electronic communications
service, sewer service, waste pick-up and any other utilities, materials or
services furnished directly to the building in which the Premises are located,
including without limitation, any temporary or permanent utility surcharge or
other exactions whether or not hereinafter imposed.
Landlord shall not be liable for and Tenant shall not be entitled to any
abatement or reduction of rent by reason of any interruption or failure of
utility services to the Premises when such interruption or failure is caused by
accident, breakage, repair, strikes, lockouts, or other labor disturbances or
labor disputes of any nature, or by any other cause, similar or dissimilar,
beyond the reasonable control of Landlord.
Provided that Tenant is not in default in the performance or observance of any
of the terms, covenants or conditions of this Lease to be performed or observed
by it. Landlord shall furnish to the Premises between the hours of 8:00 am and
6:00 pm, Mondays through Fridays (holidays excepted) and subject to the rules
and regulations of the Complex hereinbefore referred to, reasonable quantities
of water, gas and electricity suitable for the intended use of the Premises and
heat and airconditioning required in Landlord's judgment for the comfortable use
and occupation of the Premises for such purposes. Tenant agrees that at all
times it will cooperate fully with Landlord and abide by all regulations and
requirements that Landlord may prescribe for the proper functioning and
protection of the building heating, ventilating and airconditioning systems.
Whenever heat generating machines, equipment, or any other devices (including
exhaust fans) are used in the Premises by Tenant which affect the temperature or
otherwise maintained by the airconditioning system, Landlord shall have the
right to install supplementary airconditioning units in the Premises and the
cost thereof, including the cost of installation and the cost of operation and
maintenance thereof, shall be paid by Tenant to Landlord upon demand by
Landlord. Tenant will not, without the written consent of Landlord, use any
apparatus or device in the Premises (including, without limitation), electronic
data processing machines or machines using current in excess of 110 Volts which
will in any way increase the amount of electricity, gas, water or
airconditioning usually furnished or supplied to premises being used as general
office space, or connect with electric current (except through existing
electrical outlets in the Premises), or with gas or water pipes any apparatus or
device for the purposes of using electric current, gas, or water. If Tenant
shall require water, gas, or electric current in excess of that usually
furnished or supplied to premises being used as general office space, Tenant
shall first obtain the written consent of Landlord, which consent shall not be
unreasonably withheld and Landlord may cause an electric current, gas or water
meter to be installed in the Premises in order to measure the amount of electric
current, gas or water consumed for any such excess use. The cost of any such
meter and of the installation, maintenance and repair thereof, all charges for
such excess water, gas and electric current consumed (as shown by such meters
and at the rates then charged by the furnishing public utility); and any
additional expense incurred by Landlord in keeping account of electric current,
gas, or water so consumed shall be paid by Tenant, and Tenant agrees to pay
Landlord therefor promptly upon demand by Landlord.
42. PARKING Tenant shall have the right to the nonexclusive use of sixty
four (64) parking spaces in the common parking area of the building. Tenant
agrees that Tenant, Tenant's employees, agents, representatives, and/or invitees
shall not use parking spaces in excess of said 64 parking spaces allocated to
Tenant hereunder. Landlord shall have the right, at Landlord's sole discretion,
to specifically designate the location of Tenant's parking spaces within the
common parking area of the building in the event of a dispute among the tenants
occupying the building referred to herein, in which event Tenant agrees that
Tenant, Tenant's employees, agents, representatives and/or invitees shall not
use any parking spaces other than those parking spaces specifically designated
by Landlord for Tenant's use. Said parking spaces, if specifically designated
by Landlord to Tenant, may be relocated by Landlord at any time, and from time
to time. Landlord reserves the right, at Landlord's sole discretion, to rescind
any specific designation of parking spaces, thereby returning Tenant's parking
spaces to the common parking area. Landlord shall give Tenant written notice of
any change in Tenant's parking spaces. Tenant shall not, at any time, park, or
permit to be parked, any trucks or vehicles adjacent to the loading area so as
to interfere in any way with the use of such areas, nor shall Tenant, at any
time, park or permit the parking of Tenant's trucks and other vehicles or the
trucks and vehicles of Tenant's suppliers or others, in any portion of the
common areas not designated by Landlord for such use by Tenant. Tenant shall
not park nor permit to be parked, any inoperative vehicles or equipment on any
portion of the common parking area or other common areas of the building.
Tenant agrees to assume responsibility for compliance by its employees with the
parking provision contained herein. If Tenant or its employees park in other
than designated parking areas, then Landlord may charge Tenant, as an additional
charge, and Tenant agrees to pay Ten Dollars ($10.00) per day for each day or
partial day each such vehicle is parking in any area other than that
20
designated. Tenant hereby authorizes Landlord, at Tenant's sole expense, to tow
away from the building any vehicle belonging to Tenant or Tenant's employees
parked in violation of these provisions, or to attach violation stickers or
notices to such vehicles. Tenant shall use the parking area for vehicle parking
only and shall not use the parking areas for storage.
43. FIRST OPTION TO EXTEND LEASE FOR FIVE (5) YEARS Provided Tenant is not
in default of any of the terms, covenants, and conditions of this Lease
Agreement, Landlord hereby grants to Tenant an Option to Extend this Lease
Agreement for an additional five (5) year period upon the following terms and
conditions:
A. Tenant shall give Landlord written notice of Tenant's exercise of this
Option to Extend not later than February 28, 1998, in which event the Lease
shall be considered extended for an additional five (5) years upon the same
terms and conditions, absent this Paragraph 46, and subject to the rental set
forth below. In the event that Tenant fails to timely exercise Tenant's option
as set forth herein in writing, Tenant shall have no further Option to Extend
this Lease, and this Lease shall continue in full force and effect for the full
remaining term hereof, absent of this Paragraph 46.
B. The following summarizes the per square foot charge by period under
the Lease Agreement that would be applied to the Option to Extend:
Period PSF Rate
09/01/98-08/31/99 $1.10
09/01/99-08/31/00 $1.15
09/01/00-08/31/01 $1.20
09/01/01-08/31/02 $1.25
09/01/02-08/31/03 $1.30
C. The option rights of Tenant under this and the extended term
thereunder, are granted for Tenant's personal benefit and may not be assigned
or transferred by Tenant, except to a parent corporation, subsidiary
corporation, or corporation with which Tenant merges or consolidates or to whom
Tenant sells all or substantially all of its assets as provided for in
Paragraph 16, either voluntarily or by operation of law, in any manner
whatsoever. In the event that Landlord consents to a sublease or assignment
under Paragraph 16, the option granted herein and any extended term thereunder
shall be void and of no force and effect, whether or not Tenant shall have
purported to exercise such option prior to such assignment or sublease, except
an assignment or sublease to a parent corporation, subsidiary corporation, or
corporation with which Tenant merges or consolidates or to whom Tenant sells
all or substantially all of its assets.
D. INCREASED SECURITY DEPOSIT In the event the term of Tenant's Lease is
extended pursuant to this Paragraph 46, Tenant's security deposit shall be
increased to equal twice the Basic Rental due for the last month of the extended
term (i.e. $19,523.40 per month X 2 = $39,046.80).
44. SECOND OPTION TO EXTEND LEASE FOR FIVE (5) YEARS Provided Tenant is
not in default of any of the terms, covenants, and conditions of this Lease
Agreement and Tenant exercised it's First Option to Renew as set forth in
Paragraph 46 above, Landlord hereby grants to Tenant a Second Option to Extend
this Lease Agreement for an additional five (5) year period upon the following
terms and conditions:
A. Tenant shall give Landlord written notice of Tenant's exercise of
this Option to Extend not later than February 28, 2003, in which event the Lease
shall be considered extended for an additional five (5) years upon the same
terms and conditions, absent this Paragraph 47, and subject to the rental set
forth below. In the event that Tenant fails to timely exercise Tenant's option
as set forth herein in writing, Tenant shall have no further Option to Extend
this Lease, and this Lease shall continue in full force and effect for the full
remaining term hereof, absent of this Paragraph 47.
B. The following summarizes the per square foot charge by period under
the Lease Agreement that would be applied to the Option to Extend:
Period PSF Rate
21
09/01/03-08/31/04 $1.35
09/01/04-08/31/05 $1.40
09/01/05-08/31/06 $1.45
09/01/06-08/31/07 $1.50
09/01/07-08/31/08 $1.55
C. The option rights of Tenant under this paragraph, and the extended
term thereunder, are granted for Tenant's personal benefit and may not be
assigned or transferred by Tenant, except to a parent corporation, subsidiary
corporation, or corporation with which Tenant merges or consolidates or to whom
Tenant sells all or substantially all of its assets as provided for in Paragraph
16, either voluntarily or by operation of law, in any manner whatsoever. In the
event that Landlord consents to a sublease or assignment under Paragraph 16, the
option granted herein and any extended term thereunder shall be void and of no
force and effect, whether or not Tenant shall have purported to exercise such
option prior to such assignment or sublease, except an assignment or a parent
corporation, subsidiary corporation, or corporation with which Tenant merges or
consolidates or to whom Tenant sells all or substantially all of its assets.
D. INCREASED SECURITY DEPOSIT In the event the term of Tenant's Lease
is extended pursuant to this Paragraph 47, Tenant's security deposit shall be
increased to equal twice the Basic Rental due for the last month of the extended
term (i.e. $23,277.90 per month X 2 = $46,555.80).
45. HAZARDOUS MATERIALS Landlord and Tenant agree as follows with respect to
the existence or use of "Hazardous Materials" (as defined herein) on the
Premises and real property located beneath said Premises (hereinafter
collectively referred to as the "Property"):
As used herein, the term "Hazardous Materials" shall mean any hazardous or toxic
substance, material or waste which is or becomes subject to or regulated by any
local governmental authority, the State of California, or the United States
Government. The term "Hazardous Materials" includes, without limitation any
material or hazardous substance which is (i) listed under Article 9 or defined
as "hazardous" or "extremely hazardous" pursuant to Article 11 of Title 22 of
the California Administrative Code, Division 4, Chapter 30, (ii) listed or
defined as a "hazardous waste" pursuant to the Federal Resource Conservation and
Recovery Act, Section 42 U.S.C. Section 6901 et. seq., (iii) listed or defined
as a "hazardous substance" pursuant to the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. Section 9601 et. seq. (42 U.S.C.
Section 9601), (iv) petroleum or any derivative of petroleum, or (v) asbestos.
Tenant shall have no obligation to "clean up", to comply with any law regarding,
or to reimburse, release, indemnify, or defend Landlord with respect to any
hazardous materials or wastes which Tenant (prior to and during the term of the
Lease) or other parties on the Premises did not store, dispose, or transport in,
use, or cause to be on the Premises in violation of applicable law, provided,
Tenant obtains a statement from a professional, licensed environmental engineer,
(which engineer is preapproved by Landlord prior to any such report or analysis
being made by said engineer; Landlord will not be unreasonable in granting its
approval) stating that the toxic waste problem was not caused by or contributed
to by Tenant, its subtenants, or affiliates. Tenant will be responsible for
paying any and all related costs associated with the required analysis to allow
the approved engineer to make its determination.
Tenant will be 100 percent liable and responsible for any and all "cleanup" of
said toxic waste and/or hazardous materials contamination which Tenant, its
agents, or its future subtenants and/or assignees, if any, does store, dispose,
or transport in, use or cause to be on the Premises (reference to "on the
Premises" as used herein, includes on, under or about the Property and
Improvements), ( or which originate on Premises during the term of this Lease
from any source whatsoever, including third party dumping). Tenant shall
indemnify Landlord and hold Landlord harmless from any liabilities, demands,
costs, expenses and damages, including, without limitation, attorney fees
incurred as a result of any claims resulting from such contamination.
Tenant also agrees not to use or dispose of any toxic waste or hazardous
materials on the Premises without first obtaining Landlord's written consent. In
the event consent is granted by Landlord, Tenant agrees to complete complete
with governmental regulations, and prior to the termination of said Lease Tenant
22
agrees to follow the proper closure procedures and will obtain a clearance from
the local fire department and/or the appropriate city agency. If Tenant uses
hazardous materials, Tenant also agrees to install, at Tenant's expense, such
toxic waste and/or hazardous materials monitoring devices as Landlord deems
necessary. It is agreed that the Tenant's responsibilities related to toxic
waste and hazardous materials will survive the termination date of the Lease and
that Landlord may obtain specific performance of Tenant's responsibilities under
this Paragraph 48.
46. TENANT IMPROVEMENTS TO BE INSTALLED AND PAID FOR BY TENANT Subject to
the indemnification provided to Landlord by Tenant as stated in Paragraph 48
above, Landlord agrees that Tenant, at its sole cost and expense, may install a
tank farm on the Leased Premises, provided Tenant obtains all the required and
necessary governing agency(ies) permits and approval(s) and further provided
Tenant complies with all governing agency(ies) regulations related to: (i) the
installation, maintenance and removal of said tank farm and (ii) the related
Hazardous materials used therein. Tenant agrees that prior to the installation
of the tank farm Tenant must obtain from landlord written approval regarding the
location of said tank farm and must provide Landlord with a copy of all the
required permits and approvals as noted herein. Tenant shall determine from
Landlord, within 30 days prior to Lease termination, if Landlord wants Tenant to
remove said tank farm. In the event Landlord wants the tank farm to remain, it
shall remain and Tenant's interest, but not liabilities, shall transfer to
Landlord, In the event Landlord wants said tank farm removed, Tenant shall
remove the tank farm, at its sole cost and expense, prior to or by the
termination date of said Lease.
23
AMENDMENT NO. 1
TO LEASE
THIS AMENDMENT NO. 1 is made and entered into this 1st day of September
1993, by and between JOHN ARRILLAGA, Trustee, or his Successor Trustee UTA dated
7/20/77 (JOHN ARRILLAGA SEPARATE PROPERTY TRUST) as amended, and RICHARD T.
PEERY, Trustee, or his Successor Trustee UTA dated 7/20/77 (RICHARD T. PEERY
SEPARATE PROPERTY TRUST) as amended, collectively as LANDLORD, and ALPHA 1
BIOMEDICALS, INC., a Delaware corporation, as TENANT.
RECITALS
A. WHEREAS, by Lease Agreement dated January 22, 1993 Landlord leased to
Tenant approximately 15,018+/- square feet of that certain 51,680+/- square foot
building located at 810 W. Maude Ave., Sunnyvale, California, the details of
which are more particularly set forth in said January 22, 1993 Lease Agreement,
and
B. WHEREAS, it is now the desire of the parties hereto to amend the Lease
by changing the classification of parking spaces as set forth in Paragraph 42 of
said Lease Agreement from sixty-four (64) nonexclusive parking spaces to eight
(8) exclusive parking spaces and fifty-six (56) nonexclusive parking spaces as
hereinafter set forth.
AGREEMENT
NOW THEREFORE, for valuable consideration, receipt of which is hereby
acknowledged, and in consideration of the hereinafter mutual promises, the
parties hereto do agree as follows:
1. AMENDMENT TO PARAGRAPH 40 "PARKING": It is agreed between the Parties
that the first sentence of said Paragraph 42 shall be deleted and replaced with
the following: "Tenant shall have the right to the exclusive use of eight (8)
parking spaces to be labeled by Tenant, at Tenant's sole cost and expense, as
"Alpha 1 Visitor" and Tenant shall have the right to the nonexclusive use of one
fifty-six (56) non-exclusive parking spaces in the common parking area of the
Leased Premises." Said exclusive parking spaces are more particularly shown
within the area outlined in Red on EXHIBIT A. It is agreed that Landlord shall
not be responsible nor liable, in any manner whatsoever, for the enforcement of
the reserved use of the exclusive parking spaces. Prior to Lease termination
Tenant shall, at its sole cost and expense, remove the "Alpha 1 Visitor"
labeling from the reserve parking spaces and return the entire parking area in
the condition required under Lease Paragraph 4 "Acceptance and Surrender of
Premises." With the exception of the aforementioned changes to said Paragraph
42 the remainder of said Paragraph remains in full force and effect.
EXCEPT AS MODIFIED HEREIN, all other terms, covenants, and conditions of
said January 22, 1993 Lease Agreement shall remain in full force and effect.
24
IN WITNESS WHEREOF, Landlord and Tenant have executed this Amendment No. 1
to Lease as of the day and year first hereinabove set forth.
LANDLORD: TENANT:
JOHN ARRILLAGA SEPARATE ALPHA 1 BIOMEDICALS, INC.
PROPERTY TRUST a Delaware corporation
By_________________________________
By___________________________________
John Arrillaga, Trustee
___________________________________
Print or Type Name
RICHARD T. PEERY SEPARATE Title:_____________________________
PROPERTY TRUST
By___________________________________
Dated:_______________________________
Richard T. Peery, Trustee
25
AMENDMENT NO 2.
TO LEASE
THIS AMENDMENT NO.1 is made and entered into this 27th day of December, 1993, by
and between JOHN ARRILLAGA, Trustee, or his Successor Trustee UTA dated 7/20/77
(JOHN ARRILLAGA SEPARATE PROPERTY TRUST) as amended, and RICHARD T. PEERY,
Trustee, or his Successor Trustee UTA dated 7/20/77 (RICHARD T. PEERY SEPARATE
PROPERTY TRUST) as amended, collectively as LANDLORD, and ALPHA 1 BIOMEDICALS,
INC., a Delaware corporation, as TENANT.
RECITALS
A. WHEREAS, by Lease agreement dated January 22, 1993 Landlord leased to
Tenant approximately 15,018+/- square feet of that certain 51,680+/- square foot
building located at 810 W. Maude Ave., Sunnyvale, California, the details of
which are more particularly set forth in said January 22, 1993 Lease Agreement,
and
B. WHEREAS, the Lease was amended by changing the classification of
parking spaces as set forth in Paragraph 42 of said Lease Agreement from sixty-
four (64) nonexclusive parking spaces to eight (8) exclusive parking spaces and
fifty-six (56) nonexclusive parking spaces, and
C. WHEREAS, it is now the desire of both parties hereto to amend the
Lease by: (i) changing the street address of Tenant's Leased Premises, (ii)
increasing the total square footage leased by 11,902+/-, or from 15,018+/- to
26,920+/- square feet, (iii) extending the Lease Term three (3) years five (5)
months commencing on September 1, 1998 and ending on January 31, 2002, (iv)
amending the Basic Rent schedule to reflect the increases in square footage and
Term, (v) deleting Paragraph 43 ("FIRST OPTION TO EXTEND LEASE FOR FIVE (5)
YEARS") in its entirety, and (vi) replacing Paragraph 44 ("SECOND OPTION TO
EXTEND LEASE FOR FIVE (5) YEARS") as hereinafter set forth.
AGREEMENT
NOW THEREFORE, for valuable consideration, receipt of which is hereby
acknowledged, and in consideration of the hereinafter mutual promises, the
parties hereto do agree as follows:
1. CHANGE IN STREET ADDRESS OF LEASED PREMISES: By direction of the City
of Sunnyvale Building Inspection Superintendent, the street address for Tenant's
Leased Premises is changed from 810 West Maude to 820 West Maude Avenue,
Sunnyvale, California, 94086.
2. INCREASED PREMISES: Effective February 1, 1994, the size of the Leased
Premises shall be increased by 11,902+/- square feet, or from 15,018+/- square
feet to 26,920+/- square feet of space. The additional 11,902+/- square feet of
space is leased on an "as-is" basis, in its present condition and configuration,
as set forth in Blue on EXHIBIT B attached hereto, with the entire interior
Leased Premises shown in Red on EXHIBIT B. Total said Premises of 26,920+/-
square feet are more particularly shown within the area outlined in Red on
EXHIBIT A. The entire Parcel, of which the Leased Premises is a part, is shown
within the area outlined in Green on EXHIBIT A.
3. EXTENDED TERM: Paragraph 2 ("TERM") shall be amended to extend the
Term of this Lease three years and five months commencing September 1, 1998 and
terminating January 31, 2002.
4. BASIC RENT SCHEDULE: The Basic Rent schedule, as shown in Paragraph
3(A) of the Lease Agreement, shall be amended as follows:
On February 1, 1994, the sum of TWENTY-TWO THOUSAND EIGHT HUNDRED EIGHTY-
TWO DOLLARS ($22,882.00) shall be due, and a like sum due on the first day of
each month thereafter, through and including August 1, 1994.
26
On September 1, 1994, the sum of TWENTY-FOUR THOUSAND TWO HUNDRED TWENTY-
EIGHT DOLLARS ($24,228.00) shall be due, and a like sum due on the first day of
each month thereafter, through and including August 1, 1995.
On September 1, 1995, the sum of TWENTY-FIVE THOUSAND FIVE HUNDRED SEVENTY-
FOUR DOLLARS ($25,574.00) shall be due, and a like sum due on the first day of
each month thereafter, through and including August 1, 1996.
On September 1, 1996, the sum of TWENTY-SIX THOUSAND NINE HUNDRED TWENTY
DOLLARS ($26,920.00) shall be due, and a like sum due on the first day of each
month thereafter, through and including August 1, 1997.
On September 1, 1997, the sum of TWENTY-EIGHT THOUSAND TWO HUNDRED SIXTY-
SIX DOLLARS ($28,266.00) shall be due, and a like sum due on the first day of
each month thereafter, through and including August 1, 1998.
On September 1, 1998, the sum of TWENTY-NINE THOUSAND SIX HUNDRED TWELVE
DOLLARS ($29,612.00) shall be due, and a like sum due on the first day of each
month thereafter, through and including August 1, 1999.
On September 1, 1999, the sum of THIRTY THOUSAND NINE HUNDRED FIFTY-EIGHT
DOLLARS ($30,958.00) shall be due, and a like sum due on the first day of each
month thereafter, through and including August 1, 2000.
On September 1, 2000, the sum of THIRTY-TWO THOUSAND THREE HUNDRED FOUR
DOLLARS ($32,304.00) shall be due, and a like sum due on the first day of each
month thereafter, through and including August 1, 2001.
On September 1, 2001, the sum of THIRTY-THREE THOUSAND SIX HUNDRED FIFTY
DOLLARS ($33,650.00) shall be due, and a like sum due on the first day of each
month thereafter, through and including August 1, 2002.
As a result of the increase in square feet leased, the Aggregate Rental
shall be increased by $1,908,568.50, or from $858,026.00 to $2,766,594.50.
5. INCREASED PARKING: Tenant's nonexclusive parking spaces shall be
increased by forty-two (42) spaces or form sixty-four (64) spaces to one hundred
six (106) spaces; Tenant's exclusive parking space shall remain at eight (8)
spaces for total of one hundred fourteen (114) parking spaces.
6. SECURITY DEPOSIT: Tenant's security deposit shall be increased by
$35,762.20, or from $31,537.80 to $67,300.00, payable February 1, 1994.
7. DELETE PARAGRAPH 43 ("FIRST OPTION TO EXTEND LEASE FOE FIVE (5)
YEARS"): Lease Paragraph 43 ("First Option to Extend Lease for Five (5) Years")
of Lease Agreement dated January 22, 1993 shall be deleted in its entirety
effective December 27, 1993.
8. REPLACEMENT OF LEASE PARAGRAPH 44 ("OPTION TO EXTEND LEASE FOR FIVE
(5) YEARS"): Lease Paragraph 44 ("OPTION TO EXTEND LEASE FOR FIVE (5) YEARS")
shall be considered null void and shall be replaced with the following:
"44. SECOND OPTION TO EXTEND LEASE FOR SIX (6) YEARS SEVEN (7) MONTHS": Provided
Tenant is not in default of any of the terms, covenants, and conditions of this
Lease Agreement, Landlord hereby grants to Tenant a Second Option to Extend this
Lease Agreement for an additional six (6) years seven (7) months upon the
following terms and conditions:
27
A. Tenant shall give the Landlord written notice of Tenant's exercise of
this Option to Extend not later than August 31, 2001, in which event the Lease
shall be considered extended for an additional six (6) years seven (7) months
upon the same terms and conditions, absent this Paragraph 44, and subject to the
rental set forth below. In the event that Tenant fails to timely exercise
Tenant's option as set forth herein in writing, Tenant shall have no further
Option to Extend this Lease, and this Lease shall continue in full force and
effect for the full remaining term hereof, absent of this Paragraph 44.
B. The following summarizes the per foot charge by period under the Lease
Agreement that would be applied to the Option to Extend:
PERIOD PSF RATE
2/01/02-08/31/02 $1.25
09/01/02-08/31/03 $1.30
09/01/03-08/31/04 $1.35
09/01/04-08/31/05 $1.40
09/01/05-08/31/06 $1.45
09/01/06-08/31/07 $1.50
09/01/07-08/31/08 $1.55
C. The option rights of Tenant under this paragraph, and the extended term
thereunder, are granted for Tenant's personal benefit and may not be assigned or
transferred by Tenant, except to a parent corporation, or corporation with which
Tenant merges or consolidates or to whom Tenant sells all or substantially all
of its assets as provided for in Paragraph 14, either voluntarily or by
operation of law, in any manner whatsoever. In the event that Landlord consents
to a sublease or assignment under Paragraph 14, the option granted herein and
any extended term thereunder shall be void and of no force and effect, whether
or not Tenant shall have purported to exercise such option prior to such
assignment or sublease. except as assignment or sublease to a parent
corporation, subsidiary corporation, or corporation with which Tenant merges or
consolidates or to whom Tenant sells all or substantially all of its assets.
D. INCREASED SECURITY DEPOSIT: In the event the term of Tenant's Lease is
extended pursuant to this Paragraph 44, Tenant's security deposit shall be
increased to equal twice the Basic Rental due for the last month of the extended
term (i.e. $23,277.90 per month X 2 = $46,555.80)."
EXCEPT AS MODIFIED HEREIN, all other terms, covenants, and conditions of
said January 22, 1993 Lease Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Amendment No. 2
to Lease as of the day and year first hereinabove set forth.
LANDLORD: TENANT:
JOHN ARRILLAGA SEPARATE ALPHA 1 BIOMEDICALS, INC.
PROPERTY TRUST A DELAWARE CORPORATION
By /S/JOHN ARRILLAGA By /S/R.J. LANHAM
--------------------------------- ---------------------------------
John Arrillaga, Trustee R.J. LANHAM
Vice President Finance & Administration
RICHARD T. PEERY SEPARATE
PROPERTY TRUST
By /S/RICHARD T. PEERY
---------------------------------
Richard T. Peery, Trustee Dated: 1/11/94
---------------------
28
AMENDMENT NO. 3
TO LEASE
THIS AMENDMENT NO. 3 is made and entered into this 1st day of March 1994,
by and between JOHN ARRILLAGA, Trustee, or his Successor Trustee UTA dated
7/20/77 (JOHN ARRILLAGA SEPARATE PROPERTY TRUST) as amended, and RICHARD T.
PEERY, Trustee, or his Successor Trustee UTA dated 7/20/77 (RICHARD T. PEERY
SEPARATE PROPERTY TRUST) as amended, collectively as LANDLORD, and ALPHA 1
BIOMEDICALS, INC., a Delaware corporation, as TENANT.
RECITALS
A. WHEREAS, by Lease Agreement dated January 22, 1993 Landlord leased to
Tenant approximately 15,018+/- square feet of that certain 51,680+/- square foot
building located at 810 W. Maude Ave., Sunnyvale, California, the details of
which are more particularly set forth in said January 22, 1993 Lease Agreement,
and
B. WHEREAS, the Lease was amended by Amendment No. 1 dated September 1,
1993 by changing the classification of parking spaces as set forth in Paragraph
42 of said Lease Agreement from sixty-four (64) nonexclusive parking spaces to
eight (8) exclusive parking spaces and fifty-six (56) nonexclusive parking
spaces, and
C. WHEREAS, the Lease was amended by Amendment No. 2 dated December 27,
1993 by: (i) changing the street address of Tenant's Lease Premises, (ii)
increasing the total square footage leased by 11,902+/-, or from 15,018+/- to
26,920+/- square feet, (iii) extending the Lease Term three (3) years five (5)
months commencing on September 1, 1998 and ending on January 31, 2002, (iv)
amending the Basic Rent schedule to reflect the increases in square footage and
Term, (v) deleting Paragraph 43 ("FIRST OPTION TO EXTEND LEASE FOR FIVE (5)
YEARS") in its entirety, and (vi) replacing Paragraph 44 ("SECOND OPTION TO
EXTEND LEASE FOR FIVE (5) YEARS"), and
D. WHEREAS, it is now the desire of both parties hereto to amend the
Lease by changing the increased square footage commencement date pursuant to
Amendment No. 2 from February 1, 1994 to March 1, 1994 and amending the Basic
Rent schedule and Aggregate Rent to reflect said change in date as hereinafter
set forth.
AGREEMENT
NOW THEREFORE, for valuable consideration, receipt of which is hereby
acknowledged, and in consideration of the hereinafter mutual promises, the
parties hereto do agree as follows:
1. COMMENCEMENT DATE OF INCREASED PREMISES PURSUANT TO AMENDMENT NO. 2:
Pursuant to Amendment No. 2, said Lease Agreement was amended to increase the
square footage from 15,018+/- to 26,920+/- square feet of space effective
February 1, 1994. The commencement date of said increase is hereby amended to
commence effective March 1, 1994.
29
2. BASIC RENT SCHEDULE. The monthly Basic Rent schedule shall be amended
as follows:
On March 1, 1994, the sum of TWENTY-TWO THOUSAND EIGHT HUNDRED EIGHTY-TWO
DOLLARS ($22,882.00) shall be due, and a like sum due on the first day of each
month thereafter, through and including August 1, 1994.
On September 1, 1994, the sum of TWENTY-FOUR THOUSAND TWO HUNDRED TWENTY-
EIGHT DOLLARS ($24,228.00) shall be due, and a like sum due on the fist day of
each month thereafter, through and including August 1, 1995.
On September 1, 1995, the sum of TWENTY-FIVE THOUSAND FIVE HUNDRED SEVENTY-
FOUR DOLLARS ($25,574.00) shall be due, and a like sum due on the first day of
each month thereafter, through and including August 1, 1996.
On September 1, 1996, the sum of TWENTY-SIX THOUSAND NINE HUNDRED TWENTY
DOLLARS ($26,920.00) shall be due, and a like sum due on the first day of each
month thereafter, through and including August 1, 1997.
On September 1, 1997, the sum of TWENTY-EIGHT THOUSAND TWO HUNDRED SIXTY-
SIX DOLLARS ($28,266.00) shall be due, and a like sum due on the first day of
each month thereafter, through and including August 1, 1998.
On September 1, 1998, the sum of TWENTY-NINE THOUSAND SIX HUNDRED TWELVE
DOLLARS ($29,612.00) shall be due, and a like sum due on the first day of each
month thereafter, through and including August 1, 1999.
On September 1, 1999, the sum of THIRTY THOUSAND NINE HUNDRED FIFTY-EIGHT
DOLLARS ($30,958.00) shall be due, and a like sum due on the first day of each
month thereafter, through and including August 1, 2000.
On September 1, 2000, the sum of THIRTY-TWO THOUSAND THREE HUNDRED FOUR
DOLLARS ($32,304.00) shall be due, and a like sum due on the first day of each
month thereafter, through and including August 1, 2001.
On September 1, 2001, the sum of THIRTY-THREE THOUSAND SIX HUNDRED FIFTY
DOLLARS ($33,650.00) shall be due, and a like sum due on the first day of each
month thereafter, through and including August 1, 2002.
As a result of the adjustment of the commencement date of the increase in
square feet leased, the Aggregate Rental shall be decreased by $10,116.70, or
from $2,766,594.50 to $2,756,477.80.
EXCEPT AS MODIFIED HEREIN, all other terms, covenants, and conditions
of said January 22, 1993 Lease Agreement shall remain in full force and effect.
30
Initial:_________
IN WITNESS WHEREOF, Landlord and Tenant have executed this Amendment No. 3
to Lease as of the day and year first hereinabove set forth.
LANDLORD: TENANT:
JOHN ARRILLAGA SEPARATE ALPHA 1 BIOMEDICALS, INC.
PROPERTY TRUST a Delaware corporation
By_____________________________ By_____________________________
John Arrillaga, Trustee
_______________________________
Print or Type Name
RICHARD T. PEERY SEPARATE Title:_________________________
PROPERTY TRUST
By_____________________________ Dated:_________________________
31
Initial:___________________
EXHIBIT B
CONSENT TO ASSIGNMENT
This Consent to Assignment, dated March 20, 1995, (this "Consent") by and
between John Arrillaga, as Trustee, or his Successor Trustee, UTA dated 7/20/77
(John Arrillaga Separate Property Trust), as amended, and Richard T. Peery, as
Trustee, or his Successor Trustee, UTA dated 7/20/77 (Richard T. Peery Separate
Property Trust), as amended (collectively as "Landlord"), Alpha 1 Biomedicals,
Inc., a Delaware corporation ("Tenant"), and Scios Nova, Inc., a Delaware
corporation ("Assignee"), with reference to the following facts:
A. Landlord and Tenant entered into that certain Lease Agreement dated
January 22, 1993 and subsequent Amendment Nos. 1, 2 and 3 thereto (collectively
the "Master Lease"), relating to those certain premises consisting of
approximately 26,920+- square feet of space located at 820 W. Maude Avenue,
Sunnyvale, California ("Premises").
B. Tenant and Assignee intend to enter or have entered into an
assignment agreement in the form of and on terms set forth in that certain
agreement attached hereto as EXHIBIT A ("Assignment"). Subject to the terms
of the Assignment and this Consent, Assignee will assume all obligations under
the Master Lease as of the Effective Date (as defined within the Assignment).
C. Tenant has requested that Landlord consent to the Assignment, and
Landlord agrees to consent to the Assignment subject to the terms and conditions
set forth below; however, Landlord shall not be a party to or in any manner
whatsoever be responsible or liable to Tenant or Assignee for the terms and
conditions of said Assignment.
NOW, THEREFORE, in consideration of the foregoing, and in consideration of
the mutual agreements and covenants hereinafter set forth, Landlord, Tenant and
Assignee agree as follows:
1. DEFINITIONS. Unless otherwise defined in this Consent, all
defined terms used in this Consent shall have the same meaning and definition
given them in the Master Lease.
2. MASTER LEASE. The Assignment is and shall be at all times subject
and subordinate to the Master Lease. Assignee acknowledges and agrees that the
term of the Assignment shall automatically terminate upon the termination of the
Master Lease for any reason whatsoever. To the best of Landlord's knowledge,
Tenant is not in default of the Master Lease as of March 20, 1995.
3. CONSENT OF LANDLORD. Landlord hereby consents to the assignment
of the Master Lease to Assignee pursuant to the terms of this Consent.
Landlord's consent shall not release Tenant from any of its obligations under
the Master Lease or release or alter the liability of Tenant to pay rent and all
other sums due under the Master Lease and to perform and comply with all other
obligations of Tenant under the Master Lease. As between Landlord and Tenant,
the Assignment shall not alter, amend or otherwise modify any provisions of the
Master Lease. Landlord shall have no obligation to any party in connection with
the Premises other than those obligations set forth in the Master Lease and this
Consent.
32
4. ASSIGNMENT OF RENT.
4.1 Subject to the terms of Section 4.2, Tenant hereby irrevocably
assigns and transfers to Landlord Tenant's rights under the Assignment to all
rentals and other sums due Tenant from Assignee under the Assignment.
4.2 Landlord and Tenant agree that Tenant may receive, collect and
enjoy the rentals and other sums due under the Master Lease from Assignee.
However, if Tenant shall default in the performance of its obligations under the
Master Lease, then Landlord may, at its sole option, receive and collect,
directly from Assignee, all rentals and other sums due or to be due Tenant under
the Assignment. Landlord shall not by reason of the assignment of all rentals
and other sums due Tenant under the Assignment nor by reason of the collection
of said rentals or other sums from the Assignee, (a) be bound by or become a
party to the Assignment, (b) be deemed to have accepted the attornment of
Assignee, or (c) be deemed liable to Assignee for any failure of the Tenant to
perform and comply with Tenant's obligations under the Assignment. Tenant
hereby irrevocably authorizes and directs Assignee, upon receipt of any written
notice from Landlord stating that a default exists in the performance of
Tenant's obligations under the Master Lease, to pay to Landlord the rents and
other income due and to become due under the Assignment. Tenant agrees that
Assignee shall have the right to rely solely upon such notice from Landlord, and
upon receipt of such notice Assignee agrees to pay directly to Landlord the rent
and other income due and to become due under the Assignment. Notwithstanding
the foregoing, even if Tenant shall not be in default in performance of its
obligations under the Master Lease, Landlord at Tenant's election may receive
and collect directly from Assignee, all rentals and other sums due or to be due
Tenant under the Assignment without Landlord assuming any obligation or
liability to Tenant of any type whatsoever.
4.3 SECURITY DEPOSIT. Tenant and Assignee agree that upon the
Effective Date, Assignee shall pay to Tenant an amount equal to Tenant's
Security Deposit required under the Master Lease, and pursuant to Paragraph 4F
of the Master Lease, Landlord shall, at the termination of the Master Lease,
return the Security Deposit or any balance thereof to Assignee.
5. INDEMNIFICATION. Tenant and Assignee shall jointly and severally
indemnify and hold harmless Landlord and its employees representatives,
directors, officers and agents (collectively "Agents"), against and from any and
all losses, claims liabilities, judgments, costs, demands, causes of action, and
expenses (including, without limitation, reasonable attorneys' fees and
consultants' fees) (collectively "Claims") arising from or related to the
following: (a) Assignee's use of the Premises or from any activity done,
permitted or suffered by Assignee in, on or about the Premises, the Building, or
the Property; (b) any act or omission by Tenant, Assignee and/or their
respective Agents in connection with or related to the Assignment of the Master
Lease, the Building, or the Property; (c) any breach or default in the terms of
the Assignment; and (d) any action or proceeding brought on account of any
matter referred to in items (a), (b), (c) and/or (d). If any action or
proceeding is brought against Landlord by reason of any such Claims, upon notice
from Landlord, Tenant and/or
Initial: _______
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Assignee, jointly and severally, shall defend the same at Tenant's and/or
Assignee's expense with counsel reasonably satisfactory to Landlord. The
obligations of Tenant and Assignee under this Section 5 shall survive any
termination of the Assignment or the Master Lease.
6. INSURANCE. Notwithstanding any provision to the contrary in the
Assignment, Tenant shall, within ten (10) days of its execution hereof, provide
Landlord with a certificate of insurance from Tenant's insurer which confirms
that the insurance coverage required to be carried by Tenant under the Master
Lease remains in full force and effect, and is not diminished or reduced by the
assignment of the Master Lease to Assignee and which names Landlord as
additional insured.
7. EXPENSE UNDER THE ASSIGNMENT. This Consent is conditional upon
Landlord's receipt of Landlord's reasonable costs and attorney's fees, to which
Landlord is entitled under Paragraph 16 of the Master Lease. Tenant shall
immediately reimburse Master Lessor for such fees and costs upon receipt of
Master Lessor's statement.
8. NO AMENDMENT. Except as specifically provided for within this
Section 8 and Section 9, in no event shall Landlord's consent to this Assignment
be, or be construed as, a modification in and to the terms of the Master Lease,
and in the event of any inconsistency between the terms of the approved
Assignment and the terms of the Master Lease, the terms of the Master Lease
shall prevail.
8.1 USE. The permitted Use of the Premises, as provided for in
Paragraph 1 of the Master Lease, shall be deemed to include the following and
Landlord consents to Assignee's use of the Premises in the following ways:
8.1.1 Pharmaceutical research, development and manufacturing,
including but not limited to, molecular biology, cell biology, tissue culture,
organic and peptide chemistry, recombinant expression, fermentation and
purification, and analytical support activities as allowed by the governing
agency; and
8.1.2 Subject to governmental regulation, Assignee shall have
the right to use the existing external storage area of the Premises for the
storage of materials used by Assignee in the above research, development and
manufacturing.
8.2 SECOND OPTION TO EXTEND LEASE FOR SIX (6) YEARS SEVEN (7)
MONTHS. Provided Tenant and/or Assignee are not in default of any of the
terms, covenants, and conditions of said Master lease, the rights extended to
Tenant relating to the provisions of Master Lease Paragraph 47, "Second Option
to Extend Lease for Six (6) Years Seven (7) Months", as amended, shall be
extended to Assignee.
8.3 FURNITURE, FIXTURES AND EQUIPMENT. Pursuant to the
Assignment, Assignee is acquiring Tenant's interest in certain movable and
attached furniture, fixtures and equipment (the "Equipment") as listed on
EXHIBIT B attached hereto. As consideration for Landlord extending the Option
to Extend to Assignee as provided for in Section 8.2 above,
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Assignee has agreed that, subject to the terms of this Section 8.3, the
ownership of said Equipment shall revert to Landlord if Assignee fails to
exercise its Option to Extend within eighteen (18) months of the Effective Date
of the Assignment; however, Assignee shall have the right of use of said
furniture, fixtures and equipment throughout the remaining Term of the Master
Lease and any extension thereof. Provided Assignee exercises its Option to
Extend within said eighteen (18) month period, Assignee shall retain ownership
of said Equipment, and shall have the right, subject to the terms of Master
Lease Paragraph 5, "Acceptance and Surrender of Premises", to remove said
Equipment at the termination of said Master Lease. Notwithstanding anything to
the contrary above, in the event Assignee elects not to remove said Equipment
upon Lease Termination, Landlord shall retain its rights as stated in Master
Lease Paragraph 5 to require Tenant and/or Assignee to remove the Equipment.
8.4 REMOVAL OF FERMENTATION TANKS AND RELATED ATTACHABLE
MANUFACTURING EQUIPMENT. Notwithstanding anything to the contrary in the
Master Lease, Assignee may remove, at any time prior to Lease termination, any
and all fermentation tanks and related attachable manufacturing equipment it
installs in the Leased Premises; provided, however, Assignee and Tenant shall
jointly and severally remain responsible and liable to Landlord for any and all
damage caused to the Premises by the installation and/or removal of said tanks
and related attachable manufacturing equipment; furthermore, Landlord retains
the right, as described in Lease Paragraphs 5 and 49, to require the removal of
said tanks and related attachable manufacturing equipment by Tenant and/or
Assignee in the event Assignee elects not to remove the same.
8.5 DEFAULT OF LEASE. Landlord agrees that Assignee shall have
the right to cure any default of Tenant under the Master Lease. In the event
Tenant is liquidated or files for protection under bankruptcy laws, Landlord
shall also send notices of Tenant's default(s) to Assignee.
9. HAZARDOUS MATERIALS. The parties agree as follows with respect to
the existence or use of Hazardous Materials on the Premises, the Building, or
the Property:
9.1 Commencing with the Assignment of said Lease, Assignee, at its
sole cost, shall comply with all laws relating to the storage, use, and disposal
of Hazardous Materials that Assignee, its agents, employees, contractors,
invitees or other parties bring or permit to be brought onto the Premises, the
Building, or the Property. If Assignee intends to store, use, or dispose of any
Hazardous Materials, Assignee shall first notify Landlord in writing. Such
Hazardous Materials shall not be stored, used, or disposed of on the Premises
without Landlord's advance written approval. Notwithstanding anything to the
contrary in the Master Lease, Assignee and Assignor shall be subject to the
following provisions:
9.2 Any handling, transportation, storage, treatment, disposal or
use of Hazardous Materials by Assignee shall strictly comply with all applicable
Hazardous Materials Laws. Assignee and Assignor shall indemnify, defend upon
demand with counsel reasonably acceptable to, and hold harmless Landlord from
and against any liabilities, losses,
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claims, damages, lost profits, consequential damages, interest, penalties,
fines, monetary sanctions, attorneys' fees, experts' fees, court costs,
remediation costs, investigation costs, and other expenses which result from or
arise in any manner whatsoever out of the use, storage, treatment,
transportation, release, or disposal of Hazardous Materials on or about the
Premises or Property by Assignee after the date of Assignment.
9.3 If the presence of Hazardous Materials on the Premises, the
Building or the Property caused or permitted by Assignee after the date of the
Assignment results in contamination or deterioration of water or soil resulting
in a level of contamination greater than the levels established as acceptable by
any governmental agency having jurisdiction over such contamination, Assignee
shall promptly take any and all action necessary to investigate and remediate
such contamination if required by Law or as a condition to the issuance or
continuing effectiveness of any governmental approval which relates to the use
of the Premises, the Building or the Property or any part thereof. Assignee and
Assignor shall further be jointly and severally responsible for, and shall
defend, indemnify and hold Landlord and its agents harmless from and against all
claims, costs and liabilities, including attorneys' fees and costs, arising out
of or in connection with any investigation and remediation required hereunder to
return the Premises, the Building or the Property to its condition existing
prior to the appearance of such Hazardous Materials. Notwithstanding anything
to the contrary above, Assignee, shall not be responsible or liable to remediate
or restore the Premises, Building, or the Property, or to indemnify Landlord and
its agents under any provision of this Consent or of the Master Lease for any
Hazardous Materials contamination caused by Tenant or which occurred prior to
the Assignment of said Lease or for any off-site migration of Hazardous
Materials onto the Property which was not caused by or contributed to by
Assignee.
9.4 Assignee shall give written notice to Landlord as soon as
reasonably practicable of (i) any communication received from any governmental
authority concerning Hazardous Materials which relates to the Premises, the
Building or the Property, and (ii) any contamination thereof by Hazardous
Materials which constitutes a violation of any Hazardous Materials Law.
Assignee may use small quantities of household chemicals such as adhesives,
lubricants, and cleaning fluids in order to conduct its business at the Premises
and such other Hazardous Materials as are necessary for the operation of
Assignee's business of which Landlord receives notice prior to such Hazardous
Materials being brought onto the Premises and which Landlord consents in writing
may be brought onto the Premises. At any time during the Lease Term, Assignee
shall, within five (5) days after written request therefor received from
Landlord, disclose in writing all Hazardous Materials that are being used by
Assignee on the Premises, the nature of such use, and the manner of storage and
disposal.
9.5 Landlord may cause testing wells to be installed on the
Premises or Property, and may cause the ground water to be tested to detect the
presence of Hazardous Material by the use of such tests as are then customarily
used for such purposes. If Assignee so requests, Landlord shall supply Assignee
with copies of such test results. The cost of such tests and of the
installation, maintenance, repair and replacement of such wells shall be paid
36
by Assignee if such tests disclose the existence of facts which give rise to
liability of Assignee pursuant to its indemnity as described under Section 9.
9.6 As used herein, the term "Hazardous Material, means any
hazardous or toxic substance, material or waste which is or becomes regulated by
any local governmental authority, the State of California or the United States
Government.
The term "Hazardous Material, includes, without limitation,
petroleum products, asbestos, PCB'S, and any material or substance which is (i)
listed under Article 9 or defined as hazardous or extremely hazardous pursuant
to Article 11 of Title 22 of the California Administrative Code, Division 4,
Chapter 20; (ii) defined as a "hazardous waste" pursuant to Section 1004 of the
Federal Resource Conservation and Recovery Act, 42 U.S.C. 6901 et seq. (42
U.S.C. 6903); or (iii) defined as a "hazardous substance" pursuant to Section
101 of the Comprehensive Environmental Response, Compensation and Liability Act,
42 U.S.C. 6901 et seq. (42 U.S.C. 9601). As used herein, the term "Hazardous
Material Law" shall mean any statute, law, ordinance, or regulation of any
government body or agency (including the U.S. Environmental Protection Agency,
the California Regional Water Quality Control Board, and the California
Department of Health Services) which regulates the use, storage, release or
disposal of any Hazardous Material.
9.7 The obligations of Assignor and Assignee under this Section 9
on Hazardous Materials shall survive the expiration or earlier termination of
the Assignment or the Lease Term. In the event of any inconsistency between any
part of this Consent, the Master Lease and this Section 9, the terms of this
Section 9 shall control. Pursuant to Section 9, Assignor and Assignee shall
jointly and severally be responsible for and shall defend, indemnify, and hold
Landlord and its agents harmless from and against all claims, costs and
liabilities, including attorney's fees and costs, arising out of or in
connection with the storage, use, or disposal of Hazardous Materials in or about
the Premises by Assignee, its agents, employees, contractors, or invitees which
occur after the date of the Assignment. Assignee's responsibility and duty as
set forth in this Section 9 shall not relieve Tenant of its responsibilities and
duties pursuant to Paragraph 48 of the Master Lease.
10. MISCELLANEOUS PROVISIONS.
10.1 Tenant and Assignee agree not to amend, modify, supplement, or
otherwise change in any respect the Assignment except with the prior written
consent of Landlord.
10.2 This Consent, together with the provisions of the Master
Lease, contains the entire agreement between the parties hereto regarding the
matters which are the subject of this Consent.
10.3 No assignment of this Consent shall be permitted, except with
the prior written consent of all parties hereto. Subject to the foregoing, the
terms, covenants and
37
conditions of this Consent shall apply to and bind the heirs, successors, the
executors and administrators of all the parties hereto.
10.4 The parties hereto acknowledge and agree that no rule or
construction to the effect that any ambiguities are to be resolved against the
drafting party, shall be employed in the interpretation of this Consent.
10.5 If any provision of this Consent is determined to be illegal
or unenforceable, such determination shall not affect any other provisions of
this Consent and all such other provisions shall remain in full force and
effect.
10.7 In the event of any legal action or proceeding, including,
without limitation, arbitration and declaratory relief, is commenced for the
purpose of enforcing any rights or remedies pursuant to this Consent, the
prevailing party or parties shall be entitled to recover from the non-prevailing
party or parties reasonable attorneys' fees, as well as cost of suit, in such
action or proceeding, whether or not such action is prosecuted by judgement.
10.8 This Consent shall be governed by California Law as applied to
contracts between parties resident in California and to be performed entirely in
California.
11. REPLACE EXHIBIT B TO THE MASTER LEASE. The parties hereto agree
that the attached EXHIBIT I reflecting the current interior configuration of
the Leased Premises shall replace the existing EXHIBIT B to the Master Lease.
The interior configuration and improvements reflected on said EXHIBIT I shall
be the configuration that Assignee and /or Tenant shall be responsible for
returning the interior of the Premises to upon Lease termination and the
improvements reflected thereon (specifically the Lab areas) shall remain in
place upon Lease termination. The foregoing shall not relieve Assignee or
Tenant from their obligations under Paragraph 5 ("ACCEPTANCE AND SURRENDER OF
PREMISES") of the Master Lease. Tenant or Assignee shall deliver to Landlord a
1/8 inch scale sepia of EXHIBIT I to Landlord by April 15, 1995.
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IN WITNESS WHEREOF, Landlord, Tenant and Assignee have executed this Consent as
of the date and year first hereinabove written.
LANDLORD:
JOHN ARRILLAGA SEPARATE
PROPERTY TRUST
By: /S/JOHN ARRILLAGA
--------------------------------
John Arrillaga, Trustee
RICHARD T. PEERY SEPARATE
PROPERTY TRUST
By: /S/RICHARD T. PEERY
--------------------------------
Richard T. Peery, Trustee
TENANT:
ALPHA 1 BIOMEDICALS, INC.,
a Delaware corporation
By: /S/ROBERT J. LANHAM
--------------------------------------
Robert J. Lanham, Vice President, Finance
and Administration
ASSIGNEE:
SCIOS NOVA, INC.,
a Delaware corporation
By: /S/RICHARD L. CASEY
--------------------
Its:CHAIRMAN AND CEO
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EXHIBIT C
to Assignment of Lease Agreement dated March 22, 1995, by and between Alpha 1
Biomedicals, Inc., Assignor, and Scios Nova Inc., Assignee, relating to 26,920
square feet of space located at 820 West Maude Avenue, Sunnyvale, California.
Existing furniture, fixture and equipment identified in Paragraph 5 of the above
Assignment of Lease:
1. Existing lunch room furniture, open office systems furniture, and
reception work station;
2. 4,000 pound lift truck and pallet Jack;
3. Merlin phone system with voicemail, paging, conference call, etc.,
installed throughout the Premises;
4. Existing dual chamber walk-in cold box (8 and 12 foot chambers);
5. Blue print cabinet.
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EXHIBIT D
ASSIGNOR'S PROPERTY TO BE REMOVED
Alpha 1 Logo Oil Painting
Copy machine Xerox model 5322
Air compressor on outside pad
Exterior cyclone fencing at side of building
55 gallon drums of diesel fuel (2)
Dryers (2)
Carboys (4)
Empty 55 gallon drums (2)
Gangbox marked Al Smith Inc.
All chemicals and solvents
Blue drums labeled "PCBs" and "Alpha 1" (2)
Dumpsters
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