<PAGE>
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-QSB
(Mark One)
[X] QUARTERLY REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT
OF 1934
For the quarterly period ended March 31, 1998
[ ] TRANSITION REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the transition period from ____________to ____________
Commission file number 0-19724
PROTEIN POLYMER TECHNOLOGIES, INC.
(Exact name of small business issuer as specified in its charter)
Delaware 33-0311631
(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
10655 Sorrento Valley Road, San Diego, CA 92121
(Address of principal executive offices)
(619) 558-6064
(Issuer's telephone number)
Check whether the issuer (1) filed all reports required to be filed by Section
13 or 15(d) of the Exchange Act during the past 12 months (or for such shorter
period that the registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days. Yes X No
--- ---
State the number of shares outstanding of each of the issuer's classes of common
equity, as of the latest practicable date: As of May 14, 1998, 10,473,873
shares of common stock were outstanding.
Transitional Small Business Disclosure Format (check one): Yes No X
--- ---
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1
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PROTEIN POLYMER TECHNOLOGIES, INC.
FORM 10-QSB
INDEX
<TABLE>
<CAPTION>
Page No.
--------
<S> <C>
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements (Unaudited)
Condensed Balance Sheets -
March 31, 1998 and December 31, 1997................................. 3
Condensed Statements of Operations -
For the Three Months ended March 31, 1998 and 1997
and the period July 6, 1988 (inception) to March 31, 1998........... 4
Condensed Statements of Cash Flows -
For the Three Months ended March 31, 1998 and 1997
and the period July 6, 1988 (inception) to March 31, 1998........... 5
Notes to Condensed Financial Statements............................... 7
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of Operations..................... 9
PART II. OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K................................... 12
Signature.......................................................... 13
</TABLE>
2
<PAGE>
PROTEIN POLYMER TECHNOLOGIES, INC.
(A Development Stage Company)
Condensed Balance Sheets
<TABLE>
<CAPTION>
MARCH 31, DECEMBER 31,
1998 1997
-----------------------------------
(UNAUDITED)
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $ 267,992 $ 325,021
Short-term investments - 974,817
Other current assets 37,718 88,868
-----------------------------------
Total current assets 305,710 1,388,706
Deposits 36,177 36,617
Notes receivable from officers 150,000 153,000
Deferred offering costs 7,102 -
Equipment and leasehold improvements, net 701,948 769,564
-----------------------------------
$ 1,200,937 $ 2,347,887
===================================
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 545,609 $ 423,594
Accrued employee benefits 184,850 151,831
Other accrued expenses 22,796 41,151
Current portion capital lease obligations 77,358 75,110
-----------------------------------
Total current liabilities 830,613 691,686
Long-term portion capital lease obligations 169,863 190,068
Stockholders' equity:
Series D convertible preferred stock, $.01 par value, 71,600
shares authorized, 28,214 shares issued and outstanding at
March 31, 1998 and December 31, 1997, respectively;
liquidation preference $2,821,400 2,667,403 2,667,403
Common stock, $.01 par value, 25,000,000 shares authorized,
10,429,094 and 10,420,722 shares issued and outstanding at
March 31, 1998 and December 31, 1997, respectively 104,292 104,208
Additional paid-in capital 22,789,514 22,778,033
Deficit accumulated during development stage (25,360,748) (24,083,511)
-----------------------------------
Total stockholders' equity 200,461 1,466,133
-----------------------------------
$ 1,200,937 $ 2,347,887
===================================
</TABLE>
See accompanying notes.
3
<PAGE>
PROTEIN POLYMER TECHNOLOGIES, INC.
(A Development Stage Company)
Condensed Statements of Operations
(unaudited)
<TABLE>
<CAPTION>
FOR THE PERIOD
JULY 6, 1988
THREE MONTHS ENDED (INCEPTION) TO
MARCH 31, MARCH 31,
1998 1997 1998
-------------------------------------------------
<S> <C> <C> <C>
Revenues:
Contract revenue $ 53,750 $ 137,250 $ 4,358,715
Interest income 8,656 62,445 954,607
Product and other income 25,039 18,604 584,207
-------------------------------------------------
Total revenues 87,445 218,299 5,897,529
Expenses:
Cost of sales 3,160 11,888 278,681
Research and development 853,224 638,929 18,100,492
Selling, general and administrative 502,048 428,588 11,931,467
Royalties 6,250 16,250 271,421
------------------------------------------------
Total expenses 1,364,682 1,095,655 30,582,061
------------------------------------------------
Net loss (1,277,237) (877,356) (24,684,532)
Undeclared dividends on preferred stock 69,567 121,282 1,487,259
------------------------------------------------
Net loss applicable to common shareholders $ (1,346,804) $ (998,638) $ (26,171,791)
================================================
Net loss per common share - basic and
diluted $(0.13) $ (0.11)
============================
Shares used in computing net loss per
common share - basic and diluted 10,429,094 9,035,106
============================
</TABLE>
See accompanying notes.
4
<PAGE>
PROTEIN POLYMER TECHNOLOGIES, INC.
(A Development Stage Company)
Condensed Statements of Cash Flows
(unaudited)
<TABLE>
<CAPTION>
FOR THE PERIOD
JULY 6, 1988
THREE MONTHS ENDED (INCEPTION) TO
MARCH 31, MARCH 31,
1998 1997 1998
----------------------------------------------
<S> <C> <C> <C>
OPERATING ACTIVITIES
Net loss $ (1,277,237) $ (877,356) $(24,684,532)
Adjustments to reconcile net loss to net cash
used for operating activities:
Stock issued for compensation and interest - - 24,895
Depreciation and amortization 88,842 36,289 1,348,561
Write-off of purchased technology - - 503,500
Changes in assets and liabilities:
Deferred offering costs (7,102) 17,356 (7,102)
Deposits 440 (8,222) (36,177)
Notes receivable from officers 3,000 - (150,000)
Other current assets 51,150 (48,496) (37,718)
Accounts payable 122,015 (80,099) 545,609
Accrued employee benefits 33,019 16,466 184,850
Other accrued expenses (18,355) 46,648 22,796
Deferred revenue - 20,750 -
----------------------------------------------
Net cash used for operating activities (1,004,228) (876,664) (22,285,318)
INVESTING ACTIVITIES
Purchase of technology - - (570,000)
Purchase of equipment and improvements (21,226) (15,207) (1,608,480)
Purchases of short-term investments - (3,978,384) (16,161,667)
Sales of short-term investments 974,817 642,313 16,161,667
----------------------------------------------
Net cash provided by (used for) investing
activities $ 953,591 $(3,351,278) $ (2,178,480)
</TABLE>
5
<PAGE>
PROTEIN POLYMER TECHNOLOGIES, INC.
(A Development Stage Company)
Condensed Statements of Cash Flows, continued
(unaudited)
<TABLE>
<CAPTION>
FOR THE PERIOD
JULY 6, 1988
THREE MONTHS ENDED (INCEPTION) TO
MARCH 31, MARCH 31,
1998 1997 1998
------------------------------------------
<S> <C> <C> <C>
FINANCING ACTIVITIES
Net proceeds from exercise of options and
warrants, and sale of common stock $ 11,565 $ 4,624,702 $ 16,525,559
Net proceeds from issuance and conversion
of preferred stock - - 6,937,752
Net proceeds from convertible notes and
detachable warrants - - 1,068,457
Payment on capital lease obligations (17,957) (2,178) (41,551)
Payment on note payable - - (92,750)
Proceeds from note payable - - 334,323
------------------------------------------
Net cash provided by (used for) financing
activities (6,392) 4,622,524 24,731,790
------------------------------------------
Net increase (decrease) in cash and cash equivalents (57,029) 394,582 267,992
Cash and cash equivalents at beginning of
period 325,021 267,357 -
------------------------------------------
Cash and cash equivalents at end of period $ 267,992 $ 661,939 $ 267,992
==========================================
SUPPLEMENTAL DISCLOSURES OF CASH FLOW
INFORMATION
Equipment purchased by capital leases $ - $ 38,595 $ 288,772
Interest paid 7,495 472 78,731
Conversion of Series D preferred stock to
common stock - - 2,097,342
Series D stock issued for Series C stock - - 2,073,925
Series C dividends paid with Series D stock - - 253,875
Series D dividends paid with common stock $ - $ 38,595 $ 422,341
</TABLE>
See accompanying notes.
6
<PAGE>
PROTEIN POLYMER TECHNOLOGIES, INC.
(A Development Stage Company)
Notes to Condensed Financial Statements
(unaudited)
March 31, 1998
1. BASIS OF PRESENTATION
The condensed financial statements of Protein Polymer Technologies, Inc. (the
"Company") for the three months ended March 31, 1998 and 1997 are unaudited.
These financial statements reflect all adjustments, consisting of only normal
recurring adjustments which, in the opinion of management, are necessary to
state fairly the financial position at March 31, 1998 and the results of
operations for the three months ended March 31, 1998 and 1997. The results of
operations for the three months ended March 31, 1998 are not necessarily
indicative of the results to be expected for the year ended December 31, 1998.
For more complete financial information, these financial statements and the
notes thereto should be read in conjunction with the audited financial
statements included in the Company's Annual Report and Form 10-KSB for the
year ended December 31, 1997, filed with the Securities and Exchange
Commission.
2. NET LOSS PER SHARE
Net loss per share is computed using the weighted average number of common
shares outstanding during the period. The net loss figures used for this
calculation recognize accumulated dividends on the Company's Series D
Preferred Stock. Such dividends are payable when declared by the Board of
Directors in cash or common stock.
3. ACCOUNTING STANDARDS ON EARNINGS PER SHARE
As required, the Company adopted Financial Accounting Standards Board
Statement No. 128, "Earnings Per Share," ("FAS No. 128") for the year ended
December 31, 1997. FAS No. 128 changes the method used to calculate earnings
per share and requires the restatement of all prior periods reported. Under
FAS No. 128, the Company is required to present basic and diluted earnings per
share if applicable. Basic and diluted earnings per share are determined based
on the weighted average number of shares outstanding during the period.
Diluted earnings per share also includes potentially dilutive securities such
as options and warrants outstanding and securities convertible into common
stock.
Both the basic and diluted loss per share for the three months ended March 31,
1998 and 1997 are based on the weighted average number of shares of common
stock outstanding during the periods. Since potentially dilutive securities
have not been included in the calculation of the diluted loss per share for
both periods as their affect is antidilutive, there is no difference between
the basic and diluted loss per share calculations.
4. NOTE RECEIVABLE WITH OFFICER
A loan for $140,000, secured by a pledge of stock, was made to an officer of
the Company on April 16, 1997, solely to meet tax obligations arising from the
exercise of a stock option. Interest accrues at the annual rate of 8% on the
unpaid principal balance. In February 1998 the loan term was extended one
year. All remaining principal and accrued interest thereon is to be paid to
the Company in full by February 1999.
5. SUBSEQUENT EVENTS
Private Placement:
On April 24, 1998, the Company closed on a private placement with a small
group of institutional and accredited investors of initially 39,312.50 shares
of the Company's Series E Convertible Preferred Stock ("Series E Stock") and
warrants to purchase an aggregate of 2,358,750 shares of common stock. The
Series E Stock was priced at $100 per share, and the Company received
approximately $3.93 million, less approximately $191,000 in estimated
expenses. In addition, the Company expects to receive approximately $1.51
million, less expenses, from a subsequent closing on or about May 15, 1998.
7
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Each share of Series E Stock is convertible at any time at the election of the
holder into 80 shares of common stock at a conversion price of $1.25 per
share, subject to certain antidilution adjustments. No underwriters were
engaged by the Company in connection with such issuance and, accordingly, no
underwriting discounts were paid. The offering is exempt from registration
under Section 4(2) of the Securities Act of 1933, as amended (the "Securities
Act"), and met the requirements of Rule 506 of Regulation D promulgated under
the Securities Act. The Company has agreed to register the shares of common
stock underlying the Series E Stock and the warrants with the Securities and
Exchange Commission within 90 to 120 days after the closing. The Company has
agreed to use its best efforts to nominate for election a person selected by
the holders of the Series E Stock to its Board of Directors.
Each share of Series E Stock also received two common stock warrants. One
warrant is exercisable at any time for 40 shares of common stock at an
exercise price of $2.50 per share, and expires approximately 18 months after
the close of the offering; the other warrant is exercisable at any time for 20
shares of common stock at an exercise price of $5.00 per share, and expires
approximately 36 months after the close of the offering. In addition, an 18
month warrant to acquire 200,000 common shares exercisable at $2.50 per share
and a 36 month warrant to acquire 100,000 common shares exercisable at $5.00
per share has been issued as a finder and document review fee paid to a lead
investor.
In connection with the above private placement, the Company issued 26,420
shares of its Series F Convertible Preferred Stock in exchange for the same
number of shares of outstanding Series D Convertible Preferred Stock. The
Company's Series F Convertible Preferred Stock is equivalent to the Company's
Series E Stock with regard to liquidation preferences. All other terms of the
Company's Series F Convertible Preferred Stock remain the same as the
Company's Series D Convertible Preferred Stock.
Facilities Lease:
On April 24, 1998, the Company executed a new lease on its existing
facilities, which includes the Company's administrative offices and its
laboratory facilities. The lease commences May 1, 1998 and expires in seven
years. The current annual rent is approximately $412,000. The Company also
agreed to lease expansion space of approximately 6,000 square feet starting
September 1, 1999.
6. LIQUIDITY
The accompanying financial statements have been prepared assuming that the
Company will continue as a going concern. The Company believes its existing
available cash and cash equivalents as of March 31, 1998, plus amounts
received as of April 24, 1998 from the initial private placement of the
Company's Series E Convertible Preferred Stock (see "Subsequent Events",
above), is sufficient to meet its anticipated capital requirements until
January 1999. Substantial additional capital resources will be required to
fund continuing expenditures related to the Company's research, development
and product marketing activities. If adequate funds are not available, the
Company may be required to significantly curtail its operating plans and
relinquish rights to significant portions of the Company's technology or
potential products.
8
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
CERTAIN STATEMENTS CONTAINED OR INCORPORATED BY REFERENCE IN THIS QUARTERLY
REPORT ON FORM 10-QSB CONSTITUTE "FORWARD-LOOKING STATEMENTS" WITHIN THE
MEANING OF THE PRIVATE SECURITIES LITIGATION REFORM ACT OF 1995. SUCH FORWARD-
LOOKING STATEMENTS INVOLVE KNOWN AND UNKNOWN RISKS, UNCERTAINTIES AND OTHER
FACTORS, SUCH AS HISTORY OF OPERATING LOSSES, RAISING ADEQUATE CAPITAL FOR
CONTINUING OPERATIONS, EARLY STAGE OF PRODUCT DEVELOPMENT, COMPLIANCE WITH
NASDAQ LISTING REQUIREMENTS, SCIENTIFIC AND TECHNICAL UNCERTAINTIES,
COMPETITIVE PRODUCTS AND APPROACHES, RELIANCE UPON COLLABORATIVE PARTNERSHIP
AGREEMENTS AND FUNDING, REGULATORY TESTING AND APPROVALS, PATENT PROTECTION
UNCERTAINTIES AND MANUFACTURING SCALE-UP AND REQUIRED QUALIFICATIONS. WHILE
THESE STATEMENTS REPRESENT MANAGEMENT'S CURRENT JUDGMENT AND EXPECTATIONS FOR
THE COMPANY, SUCH RISKS AND UNCERTAINTIES COULD CAUSE ACTUAL RESULTS TO DIFFER
MATERIALLY FROM ANY FUTURE RESULTS SUGGESTED HEREIN. THE COMPANY UNDERTAKES
NO OBLIGATION TO RELEASE PUBLICLY THE RESULTS OF ANY REVISIONS TO THESE
FORWARD-LOOKING STATEMENTS TO REFLECT EVENTS OR CIRCUMSTANCES ARISING AFTER
THE DATE HEREOF. THE READER IS ENCOURAGED TO REFER TO THE COMPANY'S 1997
ANNUAL REPORT AND 10-KSB AND OTHER RECENT FILINGS WITH THE SECURITIES AND
EXCHANGE COMMISSION, COPIES OF WHICH ARE AVAILABLE FROM THE COMPANY, TO
FURTHER ASCERTAIN THE RISKS ASSOCIATED WITH THESE STATEMENTS.
GENERAL OVERVIEW
Protein Polymer Technologies, Inc. is a development-stage biotechnology
company dedicated to the research, development and production of proprietary
protein-based materials. Since 1992 the Company has focused on medical uses
for its materials, primarily for the surgical repair markets: surgical
adhesives and sealants, soft tissue augmentation, wound healing and tissue
engineering, surgical adhesion barriers and drug delivery devices. The Company
has also developed technology that can efficiently modify and improve the
surface properties of more traditional implantable materials used in a variety
of applications, including cardiovascular products and contact lenses. The
Company has been unprofitable to date, and has an accumulated deficit of
$25,361,000.
In September 1995 the Company entered into collaborative agreements with
Ethicon, Inc., a subsidiary of the Johnson & Johnson Company, regarding its
surgical adhesives and sealants program. Ethicon terminated the relationship
in December 1997, which adversely affected the Company. The Company's strategy
with most of its programs is to enter into collaborative development
agreements with major medical product marketing and distribution companies.
Although these relationships, to the extent any are consummated, may provide
significant near-term revenues through up front licensing fees, research and
development reimbursements and milestone payments, the Company expects to
continue incurring operating losses for several more years.
In early January 1997 the Company received $4.76 million, less expenses of
approximately $140,000, from a private placement of the Company's common stock
with a number of institutional and qualified individual investors, consisting
of 1,904,000 shares at $2.50 per share. The Company registered the shares with
the Securities and Exchange Commission promptly after the closing; the
registration was declared effective on January 24, 1997.
The Company's cash balance as of March 31, 1998 was $268,000. The Company
plans to raise additional funds for continuing operations through private or
public offerings and collaborative agreements. On April 24, 1998 the Company
received approximately $3.93 million, less expenses of approximately $191,000,
from the initial placement of its Series E Convertible
9
<PAGE>
Preferred Stock and warrants with a small number of institutional and
accredited investors. On a pro forma basis, the cash balance including the net
amount raised with existing cash would be $4,008,000. At planned spending
levels this amount is expected to meet the Company's anticipated capital
requirements until January 1999.
RESULTS OF OPERATIONS
Contract research revenue for the three months ended March 31, 1998 totaled
$54,000, compared to $137,000 in revenue for the same period in 1997. The
lower revenue represents reduced research and development reimbursements from
various operating entities of the Johnson & Johnson Company, including
Ethicon, Inc. No additional contract revenues will be generated from the
Ethicon agreements.
Interest income was $9,000 for the three months ended March 31, 1998, versus
$62,000 for the same period in 1997. The decrease resulted from reduced cash
available for investing.
For the three months ended March 31, 1998 and 1997, sales and license fees
from the Company's ProNectin(R) F product line were $25,000 and $19,000,
respectively. The increase was due to reorders into the distributor pipeline.
Cost of sales was $3,000 for the three months ended March 31, 1998, compared
to $12,000 for the same period in 1997. The decrease in costs related
primarily to the sale of higher margin products. Royalty expenses was $6,000
for the three month period ended March 31, 1998, compared to $16,000 for the
same period in 1997. The reduction in expense was due to the expiration of
patents and royalty requirements paid to Stanford University. The remaining
royalty expense of $6,000 is paid to Telios Pharmaceuticals, Inc.
Research and development expenses for the three months ended March 31, 1998
were $853,000, compared to $639,000 for the same period in 1997, a 34%
increase. The increase was primarily attributable to expanded efforts related
to the Company's soft tissue augmentation program, including expanded
preclinical testing in preparation for submittal to the Food and Drug
Administration ("FDA") to begin human clinical testing, and implementation of
Good Laboratory Practices ("GLP") materials manufacturing capabilities. The
Company expects that its research and development expenses will continue to
increase over time to the extent its projects are successfully progressing and
additional capital is obtained.
Selling, general and administrative expenses for the three months ended March
31, 1998 were $502,000, as compared to $429,000 for the same period in 1997, a
17% increase. This increase was due to additional legal expenses primarily
related to Securities and Exchange Commission filings, additional staff and
increased investor relations expenses. The Company expects its selling,
general and administrative expenses to continue to increase as support for its
research and development efforts require and to the extent additional capital
is obtained.
For the three months ended March 31, 1998, the Company recorded a net loss
applicable to common shareholders of $1,347,000, or $.13 per share compared to
a loss of $999,000, or $.11 per share for the same period in 1997, a 35%
increase. Also included in each of the three month periods of 1998 and 1997
was $70,000 and $121,000, respectively, for undeclared dividends related to
the Company's preferred stock.
The Company expects to incur similar or increasing operating losses for the
immediate future (to the extent additional capital is obtained), due primarily
to increases in the Company's soft tissue augmentation program's development,
manufacturing and business development activities. The Company's results
depend on its ability to establish strategic alliances and generate contract
revenues, increased research, development and manufacturing efforts,
preclinical and clinical product testing and commercialization expenditures,
expenses incurred for regulatory compliance
10
<PAGE>
and patent prosecution, and other factors. The Company's results will also
fluctuate from period to period due to timing differences.
To date the Company believes that inflation and changing prices have not had a
material effect on its continuing operations.
LIQUIDITY AND CAPITAL RESOURCES
As of March 31, 1998, the Company had cash, cash equivalents and short-term
investments of $268,000 as compared to $1,300,000 at December 31, 1997. As of
March 31, 1998, the Company had working capital of ($525,000) as compared to
$697,000 at December 31, 1997. In April 1998 the Company received $3.93
million, less expenses of approximately $191,000, from an initial private
placement of the Company's Series E Convertible Preferred Stock with a small
number of institutional and qualified individual investors.
The Company had long-term debt obligations as of March 31, 1998 of $170,000 in
the form of capital lease obligations, versus $190,000 as of December 31,
1997. For the three months ending March 31, 1998, the Company's expenditures
for capital equipment and leasehold improvements totaled $21,000, compared
with $15,000 for the same period last year. The Company is expecting to
increase its capital expenditures in the next few quarters (to the extent
additional capital is obtained), as the Company improves existing space to
expand capacity to meet materials manufacturing requirements for preclinical
and clinical testing. The Company may enter into additional capital lease
arrangements if available at appropriate rates and terms.
The Company believes its existing available cash and short-term investments,
including the proceeds from the initial private placement of Series E
Convertible Preferred Stock, will be sufficient to meet its anticipated
capital requirements until January 1999. Substantial additional capital
resources will be required to fund continuing expenditures related to the
Company's research, development, manufacturing and business development
activities. The Company believes there may be a number of alternatives to
meeting the continuing capital requirements of its operations, including
additional collaborative agreements and public or private financings. For
example, additional placements of the Company's Series E Convertible Preferred
Stock may occur until May 15, 1998. Also, later in 1998 and during 1999 the
possible exercise of existing public and private warrants could result in
substantial funds for continuing operations. Further, the Company is currently
in preliminary discussions with a number of potential collaborative partners
that, based on the results of various materials evaluations, could result in
generating revenues in the form of license fees, milestone payments or
research and development reimbursements. However, there can be no assurance
that any of these fundings will be consummated in the necessary time frames
needed for continuing operations or on terms favorable to the Company. If
adequate funds are not available, the Company will be required to
significantly curtail its operating plans and may have to sell or license out
significant portions of the Company's technology or potential products.
11
<PAGE>
PART II. OTHER INFORMATION
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
a. Exhibits:
Exhibit
Number Description
------ -----------
10.33 Lease, with rider and exhibits, dated April 13, 1998, between the
Company and Sycamore/San Diego Investors.
27 Financial Data Schedule.
b. Reports on Form 8-K
None.
12
<PAGE>
SIGNATURE
In accordance with the requirements of the Exchange Act, the registrant caused
this report to be signed on its behalf by the undersigned, thereunto duly
authorized.
PROTEIN POLYMER TECHNOLOGIES, INC.
Date May 14, 1998 By /s/ J. Thomas Parmeter
------------ -------------------------------
J. Thomas Parmeter
Chairman of the Board, Chief
Executive Officer, President
Date May 14, 1998 By /s/ Aron P. Stern
------------ ------------------
Aron P. Stern
Vice President, Finance and Administration
and Chief Financial Officer
13
<PAGE>
EXHIBIT INDEX
Exhibit Sequentially
Number Description Numbered Page
------ ----------- -------------
10.33 Lease, with rider and exhibits, dated April 13,
1998, between the Company and Sycamore/San
Diego Investors.
27 Financial Data Schedule.
14
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EXHIBIT 10.33
OFFICE R & D LEASE
San Diego, California
Between
Sycamore/San Diego Investors,
an Illinois limited partnership
(Landlord)
and
Protein Polymer Technologies, Inc.
A Delaware corporation
(Tenant)
Printed: April 24, 1998
Lease No. 2.
<PAGE>
TABLE OF CONTENTS
MULTI-TENANT OFFICE R & D BUILDING LEASE - MODIFIED GROSS
Article 1 LEASE OF PREMISES ............................................... 1
Article 2 DEFINITIONS ..................................................... 1
Article 3 EXHIBITS AND RIDERS ............................................. 2
Article 4 DELIVERY OF POSSESSION .......................................... 3
Article 5 RENT ............................................................ 3
Article 6 INTEREST AND LATE CHARGES ....................................... 6
Article 7 SECURITY DEPOSIT ................................................ 7
Article 8 TENANT'S USE OF THE PREMISES .................................... 7
Article 9 SERVICE AND UTILITIES ........................................... 7
Article 10 CONDITION OF THE PREMISES ....................................... 8
Article 11 CONSTRUCTION, REPAIRS AND MAINTENANCE ........................... 8
Article 12 ALTERATIONS AND ADDITIONS ....................................... 9
Article 13 LEASEHOLD IMPROVEMENTS; TENANT'S PROPERTY ....................... 10
Article 14 RULES AND REGULATIONS ........................................... 10
Article 15 CERTAIN RIGHTS RESERVED BY LANDLORD ............................. 10
Article 16 ASSIGNMENT AND SUBLETTING ....................................... 11
Article 17 HOLDING OVER .................................................... 12
Article 18 SURRENDER OF PREMISES ........................................... 12
Article 19 DESTRUCTION OR DAMAGE ........................................... 12
Article 20 EMINENT DOMAIN .................................................. 13
Article 21 INDEMNIFICATION ................................................. 14
Article 22 TENANT'S INSURANCE .............................................. 14
Article 23 WAIVER OF SUBROGATION ........................................... 15
Article 24 SUBORDINATION AND ATTORNMENT .................................... 15
Article 25 TENANT ESTOPPEL CERTIFICATES .................................... 15
Article 26 TRANSFER OF LANDLORD'S INTEREST ................................. 16
Article 27 DEFAULT ......................................................... 16
Article 28 BROKERAGE FEES .................................................. 18
Article 29 NOTICES ......................................................... 18
Article 30 GOVERNMENT ENERGY OR UTILITY CONTROLS ........................... 18
Article 31 QUIET ENJOYMENT ................................................. 18
Article 32 FORCE MAJEURE ................................................... 18
Article 33 CURING TENANT'S DEFAULTS ........................................ 18
Article 34 SIGN CONTROL .................................................... 19
Article 35 MISCELLANEOUS ................................................... 19
<PAGE>
MULTI-TENANT OFFICE R & D BUILDING LEASE -
MODIFIED GROSS
This Lease between SYCAMORE SAN DIEGO INVESTORS, an Illinois Limited Partnership
("Landlord"), and Protein Polymer Technologies, Inc. a Delaware corporation
("Tenant"), is dated April 13,1998.
1. LEASE OF PREMISES.
Landlord leases to Tenant and Tenant leases from Landlord the Premises
shown by diagonal lines on the floor plan attached hereto as Exhibit A,
and further described at Article 2.L. The Premises are located within
the Building and Project described in Article 2.M. Tenant shall have
the nonexclusive right (unless otherwise provided herein) in common
with Landlord, other tenants, subtenants and invitees, to use of the
Common Areas (as defined in Article 2.E).
2. DEFINITIONS.
As used in this Lease, the following terms shall have the following
meanings:
A. Base Rent: $34,349.00 per month.
B. Base Year: The Calendar year of 1998.
C. Broker: Thomas M. Crowley.
D. Commencement Date: May 1, 1998.
E. Common Areas: the building lobbies, common corridors and hallways,
restrooms, garage and parking areas, stairways, elevators and
other generally understood public or common areas within the
boundaries of the Project. Landlord shall have the right to
regulate or restrict the use of the Common Areas.
F. Expense Stop: $ N/A.
G. Expiration Date: April 30, 2005, unless otherwise sooner
terminated in accordance with the provisions of this Lease.
H. Index (Article 5.2): United States Department of Labor, Bureau of
Labor Statistics Consumer Price Index for All Urban Consumers,
subgroup "All Items" Los Angeles, Anaheim, Riverside, (Base Year
1982-84 = 100).
I. Landlord's Mailing Address: 10675 Sorrento Valley Road,
Suite 201,
San Diego, CA 92121
619/558-1300
J. Tenants's Mailing Address: 10655 Sorrento Valley Road, Suite 100
San Diego, CA 92121
K. Parking: Tenant and it's employees and guests shall be permitted
to park cars based on 3.26 per 1,000 square feet of Premises, on a
non-exclusive basis in the designated parking areas of the
Project. Tenant shall abide by any and all parking regulations and
rules established from time to time by Landlord or Landlord's
parking operator. Tenant shall be liable to Landlord for any cost
reasonably incurred by Landlord if Landlord is obligated to
enforce Tenant's compliance with the rules and regulations.
L. Premises: that portion of the Building containing approximately
21,073 square feet of Rentable Area, shown by diagonal lines on
Exhibit A located on the 1st & 2nd floors of Building 1, combined
Premises known as Suite 100, 10655 Sorrento Valley Road, San
Diego, 92121.
M. Project: the building of which the Premises are a part (the
"Building") and any other buildings or improvements on the real
property (the "Property") located at 10655-10675 Sorrento Valley
Road, San Diego, California and further described at Exhibit A.
The Project is known as Sycamore Creek Office Park and is shown on
a site plan of the Project which is attached hereto as Exhibit A.
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N. Rentable Area: as to both the Premises and the Project, the
respective measurements of floor area as may from time to time
be subject to lease by Tenant and all tenants of the Project,
respectively, as determined by Landlord and applied on a
consistent basis throughout the Project consistent and in
accordance with BOMA Standards: provided the Rentable Area
shall be adjusted for increases or decreases in the Premises
or the Project as determined by Landlord.
O. Security Deposit (Article 7): $29,678.00.
P. State: the State of California.
Q. Tenant's First Adjustment Date (Article 5.2): the first day of
the calendar month following the Commencement Date plus 12
months.
R. Tenant's Proportionate Share: 26.8%. Such share is a fraction,
the numerator of which is the Rentable Area of the Premises,
and the denominator of which is the Rentable Area of the
Project, as determined by Landlord from time to time. The
Project currently consists of 3 building(s) containing a total
Rentable Area of 78,756 square feet.
S. Tenant's Use Clause (Article 8): Biomaterial, biomedical
research and development laboratory and related office uses.
T. Term: the period commencing on the Commencement Date and
expiring at midnight on the Expiration Date.
3. EXHIBITS AND RIDERS
The exhibits and riders listed below (unless lined out) are
incorporated by reference in this Lease.
Exhibit A - Floor Plan showing the Premises and Project
site plan
Exhibit B - Floor Plan showing Expansion Premises
Exhibit C - None
Exhibit D - Rules and Regulations
Exhibit E - None
Exhibit F - Hazardous Substances
Exhibit G - Sample Insurance Certificate
Rider: - Attached hereto and made a part hereof.
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4. DELIVERY OF POSSESSION
The Premises shall be deemed to be suitable for possession and delivery to
Tenant and Tenant shall accept delivery on the date Landlord completes
Landlord's portion of any improvements to the Premises. Landlord shall not be
liable to Tenant if Landlord is unable for any reason to deliver possession of
the Premises to Tenant on the Commencement Date set forth in Article 2 hereof.
Landlord's failure to deliver of the Premises to Tenant on that Date shall not
impair the validity of this Lease, but the Commencement Date of the Lease and
Tenant's obligation to pay rent or other sums thereunder shall be delayed until
possession of the Premises is delivered to Tenant. However, if Landlord does not
deliver possession of the Premises to Tenant within ninety (90) days after the
Commencement Date set forth in Article 2, and if the delay is attributable to
Landlord's actions which are not beyond its control, Tenant may elect to cancel
this Lease by giving written notice to Landlord at any time between the end of
said ninety (90) day period and the date that Landlord is able to deliver
possession of the Premises to Tenant, which notice shall specify the reasons
Tenant believes Landlord is in default with respect to the delay. If Tenant
gives such notice to Landlord, this Lease shall be canceled, any refundable
deposits shall be returned to Tenant, and Landlord and Tenant shall have no
further obligations under this Lease or to each other. If Tenant does not give
such notice to Landlord, then Tenant's right to cancel this Lease shall expire
and the Lease Term shall commence upon Landlord's delivery of possession of
Premises to Tenant. If delivery of Possession of the Premises to Tenant shall
occur on a date other than the Commencement Date set forth in said Article 2,
then the date of such delivery of possession of the Premises to Tenant shall
become the Commencement Date of this Lease and Landlord and Tenant shall within
ten (10) days of such date execute a Lease Amendment to amend said Article 2
accordingly.
5. RENT
5.1 Payment of Base Rent. Tenant agrees to pay the monthly
installments of Base Rent for the Premises, in advance on the
first day of each calendar month of the Term. If the Term begins
(or ends) on other than the first (or last) day of a calendar
month, the Base Rent for the partial month shall be prorated on a
per diem basis. Tenant shall pay Landlord the first Monthly
Installment of Base Rent when Tenant executes the Lease.
5.2 Adjustment to Base Rent. Base Rent shall be adjusted upward on
each Anniversary Date of this Lease (each such date being an
"Adjustment Date") for the purpose of reflecting the increase, if
any, of the cost of living, in the following manner:
5.2.1 The base for computing the increase in monthly rent shall
be the "Index" which is published and in effect for the
ninetieth (90) day preceding the Commencement Date
("Beginning Index"). The Index published and in effect for
the ninetieth (90) day preceding the each Adjustment Date
("Comparison Index") shall be used in computing the amount
of increase. On each Adjustment Date, the Base Rent then in
effect shall be increased to equal the product achieved by
multiplying the initial Base Rent specified in Article 2A
by a fraction, the numerator of which is the Comparison
Index and the denominator of which is the Beginning Index.
If the Comparison Index declines, the monthly rent due
during the twelve (12) month period following the
Adjustment Date in question shall be the same amount as the
Monthly rent due immediately before the Adjustment Date in
question. No adjustment of Base Rent shall be less than
three percent (3%) and no more than seven percent (7%) of
the Base Rent payable on the Adjustment Date.
5.2.2 As soon as the Base Rent for the next succeeding twelve
(12) months is set, Landlord shall give Tenant notice of
the amount of Base Rent for that succeeding twelve (12)
months indicating how the new Base Rent was computed. Upon
the adjustment of the Base Rent, Tenant shall, upon the
request of the Landlord, promptly execute an amendment to
this Lease setting forth the adjusted Base Rent. In no
event shall Base Rent be reduced below the Base Rent in
effect immediately preceding any such Adjustment Date.
5.2.3 The delay or failure of Landlord to demand any adjustment
to Base Rent shall not constitute a waiver of Landlord's
right to adjust and collect the Base Rent in accordance
with the provisions of this Article 5.2 as to future
adjustments to Base Rent or for prior periods for which
Landlord is entitled to increase Base Rent under this
Article 5.2. If the new Base Rent cannot be determined on
the Adjustment Date in question, Tenant shall continue
paying the Base Rent payable immediately preceding the
Adjustment Date in question, until such time as the new
Base Rent is determined. When the new Base Rent is
determined, Tenant shall pay the new Base Rent retroactive
to the applicable adjustment date.
5.3 Project Operating Costs.
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A. So that the Rent payable during the Term reflects any increase in
Project Operating Costs, Tenant agrees to pay to Landlord as Rent,
Tenant's Proportionate Share of all increases in costs, expenses
and obligations attributable to the Project and its operation, all
as provided below.
B. If, during any calendar year during the Term, Project Operating
Costs exceed the Project Operating Costs for the Base Year, Tenant
shall pay to Landlord, in addition to the Base Rent and all other
payments due under this Lease, an amount equal to Tenant's
Proportionate Share of such excess Project Operating Costs in
accordance with the provisions of this Article 5.3.B.
(1) The term "Project Operating Costs" shall include all those
items described in the following subparagraphs (a) and (b).
(a) All taxes, assessments, water and sewer charges and other
similar governmental charges levied on or attributable to the
Building or Project or their operation, including without
limitation, (i) real property taxes or assessments levied or
assessed against the Building or Project, (ii) assessments or
charges levied or assessed against the Building or Project by
any redevelopment agency, and (iii) any tax measured by gross
rentals received from the leasing of the Premises, Building
or Project, excluding any net income, franchise, capital
stock, estate or inheritance taxes imposed by the State of
Federal government or their agencies, branches or
departments; provided that if at any time during the Term any
governmental entity levies, assesses or imposes on Landlord
any (1) general or special, ad valorem or specific, excise,
capital levy or other tax, assessment, levy or charge
directly on the Rent received under this Lease or on the rent
received under any other leases of space in the Building or
Project, or (2) any license fee, excise or franchise tax,
assessment, levy, or charge measured by or based, in whole or
in part, upon such rent, or (3) any transfer, transaction, or
similar tax, assessment, levy or charge based directly or
indirectly upon the transaction represented by this Lease or
such other leases, or (4) any occupancy, use per capita or
other tax, assessment, levy or charge based directly or
indirectly upon the use or occupancy of the Premises or other
premises within the Building or Project, then any such taxes,
assessments, levies and charges shall be deemed to be
included in the term Project Operating Costs.
(b) Operating costs incurred by Landlord in maintaining,
repairing, replacing and operating the Building and Project,
including without limitation the following: (1) utilities,
including all utilities and services described in Article 9
below; (2) supplies; (3) insurance (including public
liability, properly damage, earthquake, and fire and extended
coverage insurance for the full replacement cost of the
Building and Project as required by Landlord or its lenders;
(4) services of independent contractors; (5) compensation
(including employment taxes and fringe benefits) of all
persons who perform duties connected with the operation,
maintenance, repair or overhaul of the Building or Project,
and equipment, improvements and facilities located within the
Project, including without limitation engineers, janitors,
painters, floor waxers, window washers, security and parking
personnel and gardeners (but excluding persons performing
services not uniformly available to or performed for
substantially all Building or Project tenants); (6) operation
and maintenance of a room for delivery and distribution of
mail to tenants of the Building or Project as required by the
U.S. Postal Service (including, without limitation, an amount
equal to the fair market rental value of the mail room
premises); (7) management of the Building or Project, whether
managed by Landlord or an independent contractor (including,
without limitation, an amount equal to the fair market value
of any on-site manager's office); (8) rental expenses for (or
a reasonable depreciation allowance on) personal property
used in the maintenance, operation or repair of the Building
or Project; (9) costs, expenditures or charges (whether
capitalized or not) required by any governmental or
quasi-governmental authority; (10) amortization of capital
expenses (including financing costs) (i) required by a
governmental entity for energy conservation or life safety
purposes, or (ii) made by Landlord to reduce Project
Operating Costs; and (11) any other costs or expenses
incurred by Landlord under this Lease which are customarily
treated as
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operating expenses at comparable office buildings in the
area. For the purposes of Article 5.3, for any period during
the term in which the Project is not fully occupied, Landlord
may adjust the "occupancy costs component" of Project
Operating Costs (i.e. those costs of operations which vary
directly with the occupancy level of the Project including,
but not limited to, janitorial expenses) to reasonably
approximate the occupancy costs which would have been
incurred had the Project been fully occupancy.
(2) Tenant's Proportionate Share of Project Operating Costs shall be
payable by Tenant to Landlord as follows:
(a) Beginning with the calendar year following the Base Year
and for each calendar year thereafter ("Comparison Year"),
Tenant shall pay Landlord an amount equal to Tenant's
Proportionate Share of the Project Operating Costs incurred
by Landlord in the Comparison Year which, after applying the
same adjustment in the index to the increase in Project
Operating Costs as is applied to Base Rent in the Comparison
Year, exceeds the total amount of Project Operating Costs
payable by Landlord for the Base Year. This excess is
referred to as the "Excess Expenses". For example, assume
that (i) the Project Operating Costs in the Base Year are
$1.00 per square foot and in the Comparison Year they are
$1.05 per square foot, (ii) the Index has increased 3% in the
Comparison Year over the prior year, and therefore (iii) the
Base Rent has increased by 3% over the prior year. Tenant's
Proportionate Share of the Project Operating Costs for the
Comparison Year will be $.02 per square foot [Comparison Year
expenses ($1.05) minus (Base Year expenses ($1.00) times
Index (3%) = $1.03) = $1.05 minus $1.03) = $.02].
(b) To provide for current payments of Excess Expenses,
Tenant shall, at Landlord's request, pay as additional rent
during each Comparison Year, an amount equal to Tenant's
Proportionate Share of the Excess Expenses, payable during
such Comparison Year, as estimated by Landlord from time to
time. Such payments shall be made in monthly installments,
commencing on the first day of the month following the month
in which Landlord notifies Tenant of the amount it is to pay
hereunder and continuing until the first day of the month
following the month in which Landlord gives Tenant a new
notice of estimated Excess Expenses.-Landlord will estimate
from time to time the amount of the Excess Expenses for each
Comparison Year and Tenant's Proportionate Share thereof, and
then will make an adjustment in the following year based on
the actual Excess Expenses incurred for the Comparison Year.
(c) On or before April 1 of each Comparison Year after the
first Comparison Year (or as soon thereafter as is
practical), Landlord shall deliver to Tenant a statement
setting forth Tenant's Proportionate Share of the Excess
Expenses for the preceding Comparison Year. If Tenant's
Proportionate Share of the actual Excess Expenses for the
previous Comparison Year exceed the total of the estimated
monthly payments made by Tenant for such year, Tenant shall
pay Landlord the amount of the deficiency within ten (10)
days for the receipt of the statement. If such total exceeds
Tenant's Proportionate Share of the actual Excess Expenses
for such Comparison Year, then Landlord shall credit against
Tenant's next ensuing monthly installment(s) of additional
rent an amount equal to the difference until the credit is
exhausted. If a credit is due from Landlord on the Expiration
Date, Landlord shall pay Tenant the amount of the credit. The
obligations of Tenant and Landlord to make payments required
under this Article 5.3 shall survive the Expiration Date.
(d) Tenant's Proportionate Share of Excess Expenses in any
Comparison Year having less than 365 days shall be
appropriately prorated.
(e) If any dispute arises as to the amount of any additional
rent due hereunder, Tenant shall have the right after
reasonable notice and at reasonable times to inspect
Landlord's accounting records at Landlord's accounting office
and, if after such inspection Tenant still disputes the
amount of additional rent owed, a certification as to the
proper amount shall be made by Landlord's certified public
accountant, which certification shall
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be final and conclusive. Tenant agrees to pay the cost of
such certification unless it is determined that Landlord's
original statement overstated Project Operating Costs by more
than five percent (5%).
(f) If this Lease sets forth an Expense Stop at Article 2.F.,
then during the Term Tenant shall be liable for Tenant's
Proportionate Share of any actual Project Operating Costs per
rentable square foot which exceed the amount of the Expense
Stop per rentable square foot rather than the Base Year.
Tenant shall make current payments of such excess costs
during the Term in the same manner as is provided for payment
of Excess Expenses under the applicable provisions of Article
5.3, B(2)(b) and (c) above.
5.4 Definition of Rent. All costs and expenses which Tenant assumes or
agrees to pay to Landlord under this Lease shall be deemed
additional rent (which, together with the Base Rent is sometimes
referred to as the "Rent"). The Rent shall be paid to the Building
manager (or other person) and at such place, as Landlord may from
time to time designate in writing, without any prior demand
therefore and without deduction or offset, in lawful money of the
United States of America.
5.5 Rent Control. If the amount of Rent or any other payment due under
this Lease violates the terms of any governmental restrictions on
such Rent or payment, then the Rent or payment due during the
period of such restrictions shall be the maximum amount allowable
under those restrictions. Upon termination of the restrictions,
Landlord shall, to the extent it is legally permitted, recover
from Tenant the difference between the amounts received during the
period of the restrictions and the amounts Landlord would have
received had there been no restrictions.
5.6 Taxes Payable by Tenant. In addition to the Rent and any other
charges to be paid by Tenant hereunder, Tenant shall reimburse
Landlord upon demand for any and all taxes payable by Landlord
(other than net income taxes) which are not otherwise reimbursable
under this Lease, whether or not now customary or within the
contemplation of the parties, where such taxes are upon, measured
by or reasonably attributable to (a) the cost or value of Tenant's
equipment, furniture, fixtures and other personal property located
in the Premises, or the cost or value of any leasehold
improvements made in or to the Premises by or for Tenant, other
than Building Standard Work made by Landlord, regardless of
whether title to such improvements is held by Tenant or Landlord;
(b) the gross or net Rent payable under this Lease, including,
without limitation, any rental or gross receipts tax levied by any
taxing authority with respect to the receipt of the Rent
hereunder; (c) the possession, leasing, operation, management,
maintenance, alteration, repair, use or occupancy by Tenant of the
Premises or any portion thereof; or (d) this transaction or any
document to which Tenant is a party creating or transfering an
interest or an estate in the Premises. If it becomes unlawful for
Tenant to reimburse Landlord for any costs as required under this
Lease, the Base Rent shall be revised to give to Landlord the same
net Rent after imposition of any tax or other charge upon Landlord
as would have been payable to Landlord but for the reimbursement
being unlawful.
6. INTEREST AND LATE CHARGES
If Tenant fails to pay when due any Rent or other amounts or charges
which Tenant is obligated to pay under the terms of this Lease, the
unpaid amounts shall bear interest at the maximum rate then allowed by
law. Tenant acknowledges that the late payment of any monthly
installment of Rent will cause Landlord to lose the use of that money
and incur costs and expenses not contemplated under this Lease,
including without limitation, administrative and collection costs and
processing and accounting expenses, the exact amount of which is
extremely difficult to ascertain. Therefore, in addition to interest
calculated from the due date, if any such installment is not received
by Landlord within ten (10) days from the date it is due, Tenant shall
pay Landlord a late charge equal to ten percent (10%) of such
installment. Landlord and Tenant agree that this late charge represents
a reasonable estimate of such costs and expenses and is fair
compensation to Landlord for the loss suffered from such nonpayment by
Tenant. Acceptance of any interest or late charge shall not constitute
a waiver of Tenant's default with respect to such nonpayment by Tenant
nor prevent Landlord from exercising any other rights or remedies
available to Landlord under this Lease.
7. SECURITY DEPOSIT
Tenant agrees to deposit with Landlord the Security Deposit set forth
in Article 2.O upon execution of this Lease, as security for Tenant's
faithful performance of its obligations under this Lease. Landlord and
Tenant agree that the Security Deposit may be commingled with funds of
Landlord and
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Landlord shall have no obligation or liability for payment of interest
on such deposit. Tenant shall not mortgage, assign, transfer or
encumber the Security Deposit without the prior written consent of
Landlord and any attempt by Tenant to do so shall be void, without
force or effect and shall not be binding upon Landlord.
If Tenant fails to pay any Rent or other amount when due and payable
under this Lease, or fails to perform any of the terms hereof, Landlord
may appropriate and apply or use all or any portion of the Security
Deposit for Rent payments or any other amount then due and unpaid, for
payment of any amount for which Landlord has become obligated as a
result of Tenant's default or breach, and for any loss or damage
sustained by Landlord as a result of Tenant's default or breach, and
Landlord may so apply or use this deposit without prejudice to any
other remedy Landlord may have be reason of Tenant's default or breach.
If Landlord so uses any of the Security Deposit, Tenant shall, within
ten (10) days after written demand therefore, restore the Security
Deposit to the full amount originally deposited; Tenant's failure to do
so shall constitute an act of default hereunder and Landlord shall have
the right to exercise any remedy provided for in Article 27 hereof.
Within fifteen (15) days after the Term (or any extension thereof) has
expired or Tenant has vacated the Premises, whichever shall last occur,
and provided Tenant is not then in default on any of its obligations
hereunder, Landlord shall return the Security Deposit to Tenant, or, if
Tenant has assigned its interest under this Lease, to the last assignee
of Tenant. If Landlord sells its interest in the Premises, Landlord may
deliver this deposit to the purchaser of Landlord's interest and
thereupon be relieved of any further liability or obligation with
respect to the Security Deposit.
8. TENANT'S USE OF THE PREMISES
Tenant shall use the Premises solely for the purposes set forth in
Tenant's Use Clause and in compliance with Article 1l.C. and Exhibit
F.
9. SERVICES AND UTILITIES
Landlord shall provide and install a separate electric meter for the
Premises and shall distribute sufficient electric capacity to the
Premises for normal office equipment, lighting, and HVAC (heating,
ventilating and air-conditioning) as required in Landlord's judgement
for the intended use and occupancy of the Premises and as customarily
furnished at comparable office buildings in the area. Any increase of
electric service over that provided by Landlord shall require
Landlord's advance written permission and the costs of any such
increase of electric service shall be the responsibility of Tenant.
Tenant shall not connect any apparatus employing electric current
except through existing outlets and receptacles within the Premises.
Landlord shall furnish, to the Premises, water, sewer and elevator ser-
vice, and janitorial service, exterior window-washing, HVAC equipment &
filter maintenance services as required in Landlord's judgement and as
customarily furnished at comparable office R & D buildings in the area.
Tenant shall not consume any of the above services or utilities in
excess of that usually furnished and supplied for use of the Premises
as general office R & D space (as determined by Landlord) without
Landlord's advance written permission (which may be denied) and
Landlord may under such circumstances establish a monthly charge for
Tenant's excess use or consumption of such services and utilities.
Landlord shall maintain and keep lighted the common areas of the
Project, including parking areas, building entries, lobbies, corridors,
staircases, and restrooms, and Landlord shall furnish restroom supplies
and lightbulb replacement for Building Standard (i.e. Landlord
installed) light fixtures within the Premises.
Landlord shall not be in default hereunder or be liable for any
damages directly or indirectly resulting from, nor shall rent be abated
by reason of (i) the installation, use or interruption of use of any
equipment in connection with the furnishing of any of the foregoing
services or utilities, (ii) failure to furnish or delay in furnishing
any such services or utilities where such failure or delay is caused by
accident or making of necessary repairs or improvements to the
Premises, Building or Project, or (iii) the limitation, curtailment or
rationing of, or restrictions on, use of water, electricity, gas or any
other form of energy serving the Premises, Building or Project.
Landlord shall not be liable under any circumstances, unless directly
attributable to Landlord's wrongful or negligent acts, for the loss or
damage to Tenant's property or business, through or in connection with
or incidental to failure to furnish or delay in the furnishing of any
of the foregoing services or utilities.
Tenant shall arrange for the initiation of service for any separately
metered utilities to the Premises, including telephone service,
directly with the appropriate utility vendor or supplier, and all
billing invoices, security deposits, and any other charges relating to
the initiation and continued provision of such separately metered
utilities and telephone service shall be the responsibility of and in
the name of Tenant.
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10. CONDITION OF THE PREMISES
Tenant's taking possession of the Premises shall be deemed conclusive
evidence that as of the date of taking possession the Premises are in
good order and satisfactory condition, except for such matters as to
which Tenant gave Landlord notice on or before the Commencement Date.
No promise of Landlord to alter, remodel, repair or improve the
Premises, the Building or the Project and no representation, express or
implied, respecting any matter or thing relating to the Premises,
Building, Project or this Lease (including, without limitation, the
condition of the Premises, the Building or the Project) have been made
to Tenant by Landlord or its Broker or Sales Agent, other than as may
be contained herein or in a separate exhibit or Rider signed by
Landlord and Tenant.
11. CONSTRUCTION, REPAIRS AND MAINTENANCE
A. Landlord's Obligations. Landlord shall perform Landlord's Work to
the Premises as described in Exhibit C. Landlord shall maintain in
good order, condition and repair the Building and all other
portions of the Premises not the obligation of Tenant or of any
other tenant in the Building.
B. Tenant's Obligations.
(1) Tenant shall perform Tenant's Work to the Premises as
described in Exhibit C.
(2) Tenant at Tenant's sole expense shall, except for services
furnished by Landlord pursuant to Article 9 hereof, maintain the
Premises in good order, condition and repair, including the
interior surfaces of the ceilings, walls and floors, all doors,
all interior windows, all plumbing, pipes and fixtures, electrical
wiring, switches and fixtures, Building Standard furnishings and
special items and equipment installed by or at the expense of
Tenant.
(3) Tenant shall be responsible for all repairs and alterations in
and to the Premises, Building and Project and the facilities and
systems thereof, the need for which arises out of (i) Tenant's use
or occupancy of the Premises, (ii) the installation, removal, use
or operation of Tenant's Property (as defined in Article 13) in
the Premises, (iii) the moving of Tenant's Property into or out of
the Building, or (iv) the act, omission, misuse or negligence of
Tenant, its agents, contractors, employees or invitees.
(4) If Tenant fails to maintain the Premises in good order,
condition and repair, Landlord shall give Tenant notice to do such
acts as are reasonably required to so maintain the Premises. If
Tenant fails to promptly commence such work and diligently
prosecute it to completion, then Landlord shall have the right to
do such acts and expend such funds at the expense of Tenant as are
reasonably required to perform such work. Any amount so expended
by Landlord shall be paid by Tenant promptly after demand with
interest at the prime commercial rate then being charged by Bank
of America NT & SA plus four percent (4%) per annum, from the date
of such work, but not to exceed the maximum rate then allowed by
law. Landlord shall have no liability to Tenant for any damage,
inconvenience, or interference with the use of the Premises by
Tenant as a result of performing any such work.
C. Compliance with Law. Tenant shall not use or occupy the Premises
in violation of law or any covenant, condition or restriction
affecting the Building or Project or the certificate of occupancy
issued for the Building or Project, and shall, upon notice from
Landlord, immediately discontinue any use of the Premises which is
declared by any governmental authority having jurisdiction to be a
violation of law or the certificate of occupancy. Tenant, at
Tenant's own cost and expense, shall comply with all laws,
ordinances, regulations, rules and/or any directions of any
governmental agencies or authorities having jurisdiction which
shall, by reason of the nature of Tenant's use or occupancy of the
Premises, impose any duty upon Tenant or Landlord with respect to
the Premises or its use or occupation. A judgment of any court of
competent jurisdiction or the admission by Tenant in any action or
proceeding against Tenant that Tenant has violated any such laws,
ordinances, regulations, rules and/or directions in the use of the
Premises shall be deemed to be a conclusive determination of that
fact as between Landlord and Tenant. Tenant shall not do or permit
to be done anything which will invalidate or increase the cost of
any fire, extended coverage or other insurance policy covering the
Building or Project and/or property located therein, and shall
comply with all rules, orders, regulations, requirements and
recommendations of the Insurance Services Office or any other
organization performing a similar function. Tenant shall promptly
upon demand reimburse Landlord for any additional premium charged
for such policy by reason of Tenant's failure to comply with the
provisions of this Article. Tenant shall not do or permit anything
to be done in or about the Premises which will in any way obstruct
or interfere with the rights of other tenants or occupants of the
Building or Project, or injure or
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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. Tenant shall not commit or suffer to be
committed any waste in or upon the Premises.
D. Waiver by Tenant. Tenant expressly waives the benefits of any
statute now or hereafter in effect which would otherwise
afford the Tenant the right to make repairs at Landlord's
expense or to terminate this Lease because of Landlord's
failure to keep the Premises in good order, condition and
repair.
E. Load and Equipment Limits. Tenant shall not place a load upon
any floor of the Premises which exceeds the load per square
foot which such floor was designed to carry, as determined by
Landlord or Landlord's structural engineer. The cost of any
such determination required to be made by Landlord's
structural engineer because of Tenant's load requirements
shall be paid for by Tenant upon demand. Tenant shall not
install business machines or mechanical equipment which cause
noise or vibration to such a degree as to be objectionable to
Landlord or other Building tenants.
F. Limit of Landlord's Liability. Except as otherwise expressly
provided in this Lease, Landlord shall have no liability to
Tenant nor shall Tenant's obligations under this Lease be
reduced or abated in any manner whatsoever by reason of any
inconvenience, annoyance, interruption or injury to business
arising from any repairs or changes which Landlord is required
or permitted to make in or to any portion of the Project,
Building or the Premises. Landlord shall nevertheless use
reasonable efforts to minimize any interference with Tenant's
business in the Premises.
G. Tenant Notice. Tenant shall give Landlord prompt notice of any
damage to or defective condition in any part or appurtenance
of the Building's mechanical, electrical, plumbing, HVAC or
other systems serving, located in, or passing through the
Premises.
H. Condition at Termination. Upon the expiration or earlier
termination of this Lease, Tenant shall return the Premises to
Landlord clean and in the same condition as on the date Tenant
took possession, except for normal wear and tear. Any damage
to the Premises, including any structural damage, resulting
from Tenant's use or from the removal of Tenant's fixtures,
furnishings, and equipment pursuant to Article 13.B. shall be
repaired by Tenant at Tenant's expense.
12. ALTERATIONS AND ADDITIONS
A. Tenant shall not make any additions, alterations, or
improvements to the Premises without obtaining the prior
written consent of Landlord. Landlord's consent may be
conditioned on Tenant's removing any such additions,
alterations or improvements upon the expiration of the Term
and restoring the Premises to the same condition as on the
date Tenant took possession. All work with respect to any
addition, alteration or improvement shall be done in a good
and workmanlike manner by properly qualified and licensed
personnel approved by Landlord, and such work shall be
diligently prosecuted to completion. Landlord may, at
Landlord's option, require that Landlord's contractor or
Architect supervise and/or perform that portion of any such
alternation or additions involving the Building's roof,
exterior metal siding and/or stucco surfaces, windows and/or
window frames, waterproofing any underground work,
landscaping, building entry doors and/or building security
systems, common area equipment or improvements, and/or any
item or element with the Premises, Building or Project
subject to a warranty to Landlord.
B. Tenant shall pay the costs of any work done on the Premises
pursuant to Article 12.A., and shall keep the Premises,
Building and Project free and clear of liens of any kind.
Tenant shall indemnify, defend against and keep Landlord free
and harmless from all liability, loss, damage, costs,
attorneys' fees and any other expense incurred on account of
claims by any person performing work or furnishing materials
or supplies for Tenant or any person claiming under Tenant.
Tenant shall keep Tenant's leasehold interest, and any
additions or improvements which are or become the property of
Landlord under this Lease, free and clear of all attachment or
judgment liens. Before the actual commencement of any work for
which a claim or lien may be filed, Tenant shall give Landlord
notice of the intended commencement date a sufficient time
before that date to enable Landlord to post notices of
non-responsibility or any other notices which Landlord deems
necessary for the proper protection of Landlord's interest in
the Premises, Building or the Project, and Landlord shall have
the right to enter the Premises
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and post such notices at any reasonable time.
C. Landlord may require, at Landlord's sole option, that Tenant
provide to Landlord, at Tenant's expense, a lien and
completion bond in an amount equal to at least one and
one-half (1-1/2) times the total estimated cost of any
additions, alterations or improvements to be made in or to the
Premises, to protect Landlord against any liability for
mechanic's and materialmen's liens and to insure timely
completion of the work. Nothing contained in this Article
12.C. shall relieve Tenant of its obligation under Article
12.B. to keep the Premises, Building and Project free of all
liens.
D. Unless removal is required by Landlord as provided in Article
12.A., all additions, alterations and improvements made to the
Premises shall become the property of Landlord and be
surrendered with the Premises upon the expiration of the Term;
provided, however, Tenant's equipment, machinery and trade
fixtures which can be removed without damage to the Premises
shall remain the property of Tenant and may be removed,
subject to the provisions of Article 13.B.
13. LEASEHOLD IMPROVEMENTS; TENANT'S PROPERTY
A. All fixtures, equipment, improvements and appurtenances
attached to or built into the Premises at the commencement of
or during the Term, whether or not by or at the expense of
Tenant ("Leasehold Improvements"), shall be and remain a part
of the Premises, shall be the property of Landlord and shall
not be removed by Tenant, except as expressly provided in
Article 13.B.
B. All moveable partitions, business and trade fixtures,
machinery and equipment, communications equipment and office
equipment located in the Premises and acquired by or for the
account of Tenant, without expense to Landlord, which can be
removed without structural damage to the Building, and all
furniture, furnishings and other articles of movable personal
property owned by Tenant and located in the Premises
(collectively "Tenant's Property") shall be and shall remain
the property of Tenant and may be removed by Tenant at any
time during the Term; provided that if any of Tenant's
Property is removed, Tenant shall promptly repair any damage
to the Premises or to the Building resulting from such
removal.
14. RULES AND REGULATIONS
Tenant agrees to comply with (and cause its agents, contractors,
employees and invitees to comply with) the rules and regulations
attached hereto as Exhibit D and with such reasonable modifications
thereof and additions thereto as Landlord may from time to time make.
Landlord shall not be responsible for any violation of said rules and
regulations by other tenants or occupants of the Building or Project.
15. CERTAIN RIGHTS RESERVED BY LANDLORD
Landlord reserves the following rights, exercisable without liability
to Tenant for (a) damage or injury to property, person or business, (b)
causing an actual or constructive eviction from the Premises, or (c)
disturbing Tenant's use or possession of the Premises.
A. To name the Building and Project and to change the name or
street address of the Building or Project;
B. To install and maintain all signs on the exterior and interior
of the Building and Project;
C. To have pass keys and security access to the Premises and all
doors within the Premises, excluding Tenant's vaults and
safes;
D. At any time during the Term, and on reasonable prior notice to
Tenant, to inspect the Premises, and to show the Premises to
any prospective purchaser or mortgagee of the Project, or to
any assignee of any mortgage on the Project, or to others
having an interest in the Project or Landlord, and during the
last six months of the Term, to show the Premises to
prospective tenants thereof; and
E. To enter the Premises for the purpose of making inspections,
repairs, alterations, additions or improvements to the
Premises or the Building (including, without limitation,
checking, calibrating, adjusting or balancing controls and
other parts of the HVAC system), and to take all steps as may
be necessary or desirable for the safety, protection,
maintenance or
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preservation of the Premises or the Building or Landlord's interest
therein, or as may be necessary or desirable for the operation or
improvement of the Building or in order to comply with laws, orders or
requirements of governmental or other authority. Landlord agrees to use
its best efforts (except in an emergency) to minimize interference with
Tenant's business in the Premises in the course of any such entry.
16. ASSIGNMENT AND SUBLETTING
No assignment of this Lease or sublease of all or any part of the Premises
shall be permitted, except as provided in this Article 16.
A. Tenant shall not, without the prior written consent of Landlord,
assign, transfer, encumber or hypothecate this Lease or any interest
herein or sublet the Premises or any part thereof, or permit the use of
the premises by any party other than Tenant. Any of the foregoing acts
without such consent shall be void and shall, at the option of
Landlord, terminate this Lease. This Lease shall not, nor shall any
interest of Tenant herein, be assignable by operation of law without
the written consent of Landlord. "Transfer" within the meaning of this
Article 16 shall include the transfer or transfers aggregating: (a) if
Tenant is a corporation, more than 25% of the voting stock of Tenant;
or (b) if Tenant is a partnership, more than 25% of the profit and loss
participation in such partnership.
B. If at any time or from time to time during the Term, Tenant desires to
assign this Lease or sublet all or any part of the Premises, Tenant
shall give notice to Landlord setting forth the terms and provisions of
the proposed assignment or sublease, and the identity of the proposed
assignee or subtenant. Tenant shall promptly supply Landlord with such
information concerning the business background and financial condition
of such proposed assignee or subtenant as Landlord may reasonably
request. Landlord shall have the option, exercisable by notice given to
Tenant within twenty (20) days after Tenant's notice is given, either
to sublet such space from Tenant at the rental and on the other terms
set forth in this Lease for the term set forth in Tenant's notice, or,
in the case of an assignment, to terminate this Lease. If Landlord does
not exercise such option, Tenant may assign the Lease or sublet such
space to such proposed assignee or subtenant on the following further
conditions:
(1) Landlord shall have the right to approve such proposed assignee or
subtenant, which approval shall not be unreasonably withheld;
(2) The assignment or sublease shall be on the same terms set forth in
the notice given to Landlord;
(3) No assignment or sublease shall be valid and no assignee or
sublessee shall take possession of the Premises until an executed
counterpart of such assignment or sublease has been delivered to
Landlord;
(4) No assignee or sublessee shall have a further right to assign or
sublet except on the terms herein contained; and
(5) Any sums or other economic consideration received by Tenant as a
result of such assignment or subletting, however denominated under the
assignment or sublease, which exceed, in the aggregate, (i) the total
sums which Tenant is obligated to pay Landlord under this Lease
(prorated to reflect obligations allocable to any portion of the
Premises subleased), plus (ii) any real estate brokerage commissions or
fees payable in connection with such assignment or subletting, shall be
paid to Landlord as additional rent under this Lease without affecting
or reducing any other obligations of Tenant hereunder.
(6) If Tenant's obligation under this Lease have been guaranteed by
third parties, then an assignment or sublease, and Landlord's consent
thereto, shall not be effective unless said guarantors give their
written consent to each assignment or sublease and the terms thereof.
C. Notwithstanding the provisions of paragraphs A. and B. above, Tenant
may assign this Lease or sublet the Premises or any portion thereof,
without Landlord's consent and without extending any recapture or
termination option to Landlord, to any corporation which controls, is
controlled by or is under common control with Tenant, or to any
corporation resulting from a merger or consolidation with Tenant, or to
any person or entity which acquires all the assets of Tenant's business
as a going concern, provided that (i) the assignee or sublessee
assumes, in full, the obligations of Tenant under this Lease, (ii)
Tenant remains fully liable under this Lease, and (iii) the use of the
Premises under Article 8 remains unchanged.
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D. No subletting or assignment shall release Tenant of Tenant's
obligations under this Lease or alter the primary liability of Tenant
to pay the Rent and to perform all other obligations to be performed by
Tenant hereunder. The acceptance of Rent by Landlord from any other
person shall not be deemed to be a waiver by Landlord of any provision
hereof. Consent to one assignment or subletting shall not be deemed
consent to any subsequent assignment or subletting. In the event of
default by an assignee or subtenant of Tenant or any successor of
Tenant in the performance of any of the terms hereof, Landlord may
proceed directly against Tenant without the necessity of exhausting
remedies against such assignee, subtenant or successor. Landlord may
consent to subsequent assignments of the Lease or sublettings or
amendments or modifications to the Lease with assignees of Tenant,
without notifying Tenant, or any successor of Tenant, and without
obtaining its or their consent thereto and any such actions shall not
relieve Tenant of liability under this Lease.
E. If Tenant assigns the Lease or sublets the Premises or requests the
consent of Landlord to any assignment or subletting or if Tenant
requests the consent of Landlord for any act that Tenant proposes to
do, then Tenant shall, upon demand, pay Landlord an administrative fee
of One Hundred Fifty and No/100ths Dollars ($150.00) plus any
attorneys' fees reasonably incurred by Landlord in connection with such
act or request.
17. HOLDING OVER
If after expiration of the Term, Tenant remains in possession of the
Premises with Landlord's permission (express or implied), Tenant shall
become a tenant from month to month only, upon all the provisions of
this Lease (except as to term and Base Rent), but the monthly
installments of Base Rent payable by Tenant shall be increased to one
hundred fifty percent (150%) of the Monthly Installments of Base Rent
payable by Tenant at the expiration of the Term. Such monthly rent
shall be payable in advance on or before the first day of each month.
If either party desires to terminate such month to month tenancy, it
shall give the other party not less than thirty (30) days advance
written notice of the date of termination.
18. SURRENDER OF PREMISES
A. Tenant shall peaceably surrender the Premises to Landlord on the
Expiration Date, in broomclean condition and in as good
condition as when Tenant took possession, except for (i)
reasonable wear and tear, (ii) loss by fire or other casualty
and (iii) loss by condemnation. Tenant shall, on Landlord's
request, remove Tenant's Property on or before the Expiration
Date and promptly repair all damage to the Premises or Building
caused by such removal.
B. If Tenant abandons or surrenders the Premises, or is
dispossessed by process of law or otherwise, any of Tenant's
Properly left on the Premises shall be deemed to be abandoned,
and, at Landlord's option, title shall pass to Landlord under
this Lease as by a bill of sale. If Landlord elects to remove
all or any part of such Tenant's Property, the cost of removal,
including repairing any damage to the Premises or Building
caused by such removal, shall be paid by Tenant. On the
Expiration Date, Tenant shall surrender all keys to the
Premises.
19. DESTRUCTION OR DAMAGE
A. If the Premises or the portion of the Building necessary for
Tenant's occupancy is damaged by fire, earthquake, act of God,
the elements or other casualty, Landlord shall, subject to the
provisions of this Article, promptly repair the damage, if such
repairs can, in Landlord's opinion, be completed within ninety
(90) days and if sufficient insurance proceeds are available to
landlord to complete the repair. If Landlord determines that
repairs can be completed within ninety (90) days, this Lease
shall remain in full force and effect, except that if such
damage is not the result of the negligence or willful misconduct
of Tenant or Tenant's agents, employees, contractors, licensees
or invitees, the Base Rent shall be abated to the extent
Tenant's use of the Premises is impaired, commencing with the
date of damage and continuing until completion of the repairs
required by Landlord under Article 19.D.
B. If in Landlord's opinion, such repairs to the Premises or
portion of the Building necessary for Tenant's occupancy cannot
be completed within ninety (90) days, Landlord may elect, upon
notice to Tenant given within thirty (30) days after the date of
such fire or other casualty, to repair such damage, in which
event this Lease shall continue in full force and effect, but
the Base Rent shall be partially abated as provided in Article
19.A. If Landlord does not so elect to make such repairs, this
Lease shall terminate as of the date of such fire or other
casualty.
C. If any other portion of the Building or Project is totally
destroyed or damaged to the extent that in Landlord's opinion
repair thereof cannot be completed within ninety (90) days, or
if
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sufficient insurance proceeds are not available to Landlord to complete
the repair. Landlord may elect upon notice to Tenant given within
thirty (30) days after the date of such fire or other casualty, to
repair such damage, in which event this Lease shall continue in full
force and effect, but the Base Rent shall be partially abated as
provided in Article 19.A. If Landlord does not elect to make such
repairs, this Lease shall terminate as of the date of such tire or
other casualty.
D. If the Premises are to be repaired under this Article, Landlord shall
repair at its cost any injury or damage to the Building and Building
Standard Work in the Premises. Tenant shall be responsible at its sole
cost and expense for the repair, restoration and replacement of any
other Leasehold Improvements and Tenant's Property. Landlord shall not
be liable for any loss of business, inconvenience or annoyance arising
from any repair or restoration of any portion of the Premises, Building
or Project as a result of any damage from fire or other casualty.
E. This Lease shall be considered an express agreement governing any case
of damage to or destruction of the Premises, Building or Project by
fire or other casualty, and any present or future law which purports to
govern the rights of Landlord and Tenant in such circumstances in the
absence of express agreement, shall have no application.
20. EMINENT DOMAIN
A. If the whole of the Building or Premises is law-fully taken by
condemnation or in any other manner for any public or quasi-public
purpose, this Lease shall terminate as of the date of such taking, and
Rent shall be prorated to such date. If less than the whole of the
Building or Premises is so taken, this Lease shall be unaffected by
such taking, provided that (i) Tenant shall have the right to terminate
this Lease by notice to Landlord given within ninety (90) days after
the date of such taking if twenty percent (20%) or more of the Premises
is taken and the remaining area of the Premises is not reasonably
sufficient for Tenant to continue operation of its business, and (ii)
Landlord shall have the right to terminate this Lease by notice to
Tenant given within ninety (90) days after the date of such taking. If
either Landlord or Tenant so elects to terminate this Lease, the Lease
shall terminate on the thirtieth (30th) day after either such notice.
The Rent shall be prorated to the date of termination. If this Lease
continues in force upon such partial taking, the Base Rent and Tenant's
Proportionate Share shall be equitably adjusted according to the
remaining Rentable Area of the Premises and Project.
B. In the event of any taking, partial or whole, all of the proceeds of
any award, judgment or settlement payable by the condemning authority
shall be the exclusive property of Landlord, and Tenant hereby assigns
to Landlord al1 of its right, title and interest in any award, judgment
or settlement from the condemning authority. Tenant, however, shall be
entitled to any separate award for loss of or damage to Tenant's trade
fixtures, removable personal property and unamortized Tenant
improvements that have been paid for by Tenant. For that purpose, the
cost of such improvements shall be amortized over the original term of
the Lease, excluding any options.
C. In the event of a partial taking of the Premises which does not result
in a termination of this Lease, Landlord shall restore the remaining
portion of the Premises as nearly as practicable to its condition prior
to the condemnation or taking, but only to the extent of Building
Standard Work. Tenant shall be responsible at its sole cost and--
expense for the repair, restoration and replacement of any other
Leasehold Improvements and Tenant's Property.
21. INDEMNIFICATION
A. Unless caused by the negligence or willful misconduct of Landlord,
Tenant shall indemnify and hold Landlord harmless against and from any
and all liability and claims of any kind for loss or damage to property
of Tenant or any other person, or for any injury to or death of any
person, arising out of: (1) Tenant's use and occupancy of the Premises,
or any work, activity or other things done in, on or about the Premises
or elsewhere; (2) any breach or default by Tenant of any of Tenant's
obligations under this Lease; or (3) any act or omission of Tenant, its
agents, employees, invitees or contractors. Tenant shall, at Tenant's
expense, and by counsel satisfactory to Landlord, defend Landlord in
any action or proceeding arising from any such claim and shall
indemnify Landlord against all costs, attorneys' fees, expert witness
fees and any other expenses incurred in such action or proceeding. As a
material part of the consideration for Landlord's execution of this
Lease, Tenant hereby assumes all risk of damage or injury to any person
or property in, on or about the Premises or Project from any
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cause.
B. Unless caused by the negligence or willful misconduct of Landlord,
Landlord shall not be liable for injury or damage to Tenant's business
or any loss of income therefrom or for loss of or damage to the goods,
wares, merchandise or property of Tenant, its employees, invitees or
customers, or any other person in or about the Premises nor shall
Landlord be liable for injury to the person of Tenant, Tenant's
employees, agents, invitees, or contractors whether such damage or
injury is, caused by or resulting from theft, fire, steam, electricity,
gas, water or rain which may leak or flow from or into any part of the
Premises or Project, or from the breakage, leakage, obstruction or
other defects of pipes, sprinklers, wires, appliances, plumbing, air
conditioning or lighting fixtures, or from any other cause, whether
such damage or injury results from conditions arising upon the Premises
or upon other portions of the Building or Project or from other
sources. Landlord shall not be liable for any damages arising from any
act or omission of any other tenant or occupants of the Building or
Project.
22. TENANT'S INSURANCE
A. All insurance required to be carried by Tenant hereunder shall be
issued by responsible insurance companies acceptable to Landlord and
Landlord's lender and qualified to do business in the State and rated
in "Best's Key Rating Guide" at A:IX or better. Each policy shall name
Landlord, and at Landlord's request any mortgagee of Landlord, as an
additional insured, as their respective interests may appear. Each
policy shall contain (i) a cross-liability endorsement, (ii) a
provision that such policy and the coverage evidenced thereby shall be
primary and non-contributing with respect to any policies carried by
Landlord and that any coverage carried by Landlord shall be excess
insurance, and (iii) a waiver by the insurer of any right of
subrogation against Landlord, its agents, employees and
representatives, which arises or might arise by reason of any payment
under such policy or by reason of any act or omission of Landlord, its
agents, employees or representatives. A certificate (in form of Exhibit
G) of the insurer evidencing the existence and amount of each insurance
policy required hereunder shall be delivered to Landlord before the
date Tenant is first given the right of possession of the
Premises. Landlord may, at any time and from time to time, inspect
and/or copy any insurance policies required to be maintained by Tenant
hereunder. The certificate shall state that no such policy shall be
cancelable except after thirty (30) days written notice to Landlord and
Landlords lender. Tenant shall furnish Landlord with renewals
certificates for any such policy at least thirty (30) days prior to the
expiration thereof. Tenant agrees that if Tenant does not take out and
maintain such insurance, Landlord may (but shall not be required to)
procure said insurance on Tenant's behalf and charge the Tenant the
premiums together with a handling charge of twenty-five percent (25%)
of the premium , payable upon demand. Tenant shall have the right to
provide such insurance coverage pursuant to blanket policies obtained
by the Tenant, provided such blanket policies expressly afford coverage
to the Premises, Landlord, Landlord's mortgagee and Tenant as required
by this Lease.
B. Beginning on the date Tenant is given access to the Premises for any
purpose and continuing until expiration of the Term, Tenant shall
procure, pay for and maintain in effect policies of casualty insurance
covering (i) all Leasehold Improvements (including any alterations,
additions or improvements as may be made by Tenant pursuant to the
provisions of Article 12 hereof), and (ii) trade fixtures, merchandise
and other personal property from time to time in, on or about the
Premises, in an amount not less than one hundred percent (100%) of
their actual replacement cost from time to time, providing protection
against any peril included with the classification "Fire and Extended
Coverage" together with insurance against sprinkler damage, vandalism
and malicious mischief. The proceeds of such insurance shall be used
for the repair or replacement of the property so insured. Upon
termination of this Lease following a casualty as set forth herein, the
proceeds under (i) shall be paid to Landlord, and the proceeds under
(ii) above shall be paid to Tenant.
C. Beginning on the date Tenant is given access to the Premises for any
purpose and continuing until expiration of the Term, Tenant shall
procure, pay for and maintain in effect workers' compensation insurance
as required by law and Comprehensive Public Liability Insurance
utilizing an Insurance Services Office Standard form with Broad Form
General Liability Endorsement (GL0404) or equivalent and property
damage insurance with respect to the construction of improvements on
the Premises, the use, operation, maintenance and or condition of the
Premises and the operations of Tenant in, on or about the Premises,
providing personal injury and broad form property damage coverage for
not less than Two Million Dollars ($2,000,000) combined single limit
for bodily injury, death and property damage liability.
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D. Not less than every three (3) years during the Term, Landlord and
Tenant shall mutually agree to increases in all of Tenant's insurance
policy limits for all insurance to be carried by Tenant as set forth in
this Article. In the event Landlord and Tenant cannot mutually agree
upon the amounts of said increases, then Tenant agrees that all
insurance policy limits as set forth in this Article shall be adjusted
for increases in the cost of living in the same manner as is set forth
in Article 5.2 hereof for the adjustment of the Base Rent.
23. WAIVER OF SUBROGATION
Landlord and Tenant each hereby waive all rights of recovery against the
other and against the officers, employees, agents and representatives of the
other, on account of loss by or damage to the waiving party or its property
or the property of others under its control, to the extent that such loss or
damage is insured against under any fire and extended coverage insurance
policy which either may have in force at the time of the loss or damage.
Tenant shall, upon obtaining the policies of insurance required under this
Lease, give notice to its insurance carrier or carriers that the foregoing
mutual waiver of subrogation is contained in this Lease.
24. SUBORDINATION AND ATTORNMENT
Upon written request of Landlord, or any mortgage or deed of trust
beneficiary of Landlord, or ground lessor of Landlord, Tenant shall, in
writing, subordinate its rights under this Lease to the lien of any mortgage
or deed of trust, or to the interest of any lease in which Landlord is
lessee ("Security Device"), and to all advances made or hereafter to be made
thereunder. However, before signing any subordination agreement, Tenant
shall have the right to obtain from any lender or lessor of Landlord
requesting such subordination, an agreement in writing providing that, as
long as Tenant is not in default hereunder, this Lease shall remain in
effect for the full Term. The holder of any Security Device may, upon
written notice to Tenant, elect to have this Lease prior to its Security
Device regardless of the time of the granting or recording of such Security
Device.
In the event of any foreclosure sale, transfer in lieu of foreclosure or
termination of the lease in which Landlord is lessee, Tenant shall attorn to
the purchaser, transferee or lessor as the case may be, and recognize that
party as Landlord under this Lease, provided such party acquires and accepts
the Premises subject to this Lease.
25. TENANT ESTOPPEL CERTIFICATES
Within ten (10) days after written request from Landlord, Tenant shall
execute and deliver to Landlord or Landlord's designee, a written statement
certifying (a) that this Lease is unmodified and in full force and effect,
or is in full force and effect as modified and stating the modifications;
(b) the amount of Base Rent and the date to which Base Rent and additional
rent have been paid in advance; (c) the amount of any security deposited
with Landlord; (d) that Landlord is not in default hereunder or, if Landlord
is claimed to be in default, stating the nature of any claimed default. Any
such statement may be relied upon by a purchaser, assignee or lender and
other matters reasonably requested by Landlord. Tenant's failure to execute
and deliver such statement within the time required shall at Landlord's
election be in default under this Lease and shall also be conclusive upon
Tenant that: (1) this Lease is in full force and effect and has not been
modified except as represented by Landlord; (2) there are no uncured
defaults in Landlord's performance and that Tenant has no right of offset,
counter-claim or deduction against Rent; and (3) not more than one month's
Rent has been paid in advance.
26. TRANSFER OF LANDLORD'S INTEREST
In the event of any sale or transfer by Landlord of the Premises, Building
or Project, and assignment of this Lease by Landlord, Landlord shall be and
is hereby entirely freed and relieved of any and all liability and
obligations contained in or derived from this Lease arising out of any act,
occurrence or omission relating to the Premises, Building, Project or Lease
occurring after the consummation of such sale or transfer, providing the
purchaser shall expressly assume all of the covenants and obligations of
Landlord under this Lease. If any security deposit or prepaid Rent has been
paid by Tenant, Landlord may transfer the security deposit or prepaid Rent
to Landlord's successor and upon such transfer, Landlord shall be relieved
of any and all further liability with respect thereto.
27. DEFAULT
27. I Tenant's Default. The occurrence of any one or more of the following
events shall constitute a default and breach of this Lease by Tenant:
A. If Tenant abandons or vacates the Premises; or
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15
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B. If Tenant fails to pay any Rent or any other charges required to be
paid by Tenant under this Lease and such failure continues for five (5)
days after such payment is due and payable; or
C. If Tenant fails to promptly and fully perform any other covenant,
condition or agreement contained in this Lease and such failure
continues for thirty (30) days after written notice thereof from
Landlord to Tenant; or
D. If a writ of attachment or execution is levied on this Lease or on any
of Tenant's Property; or
E. If Tenant makes a general assignment for the benefit of creditors, or
provides for an arrangement, composition, extension or adjustment with
its creditors; or
F. If Tenant files a voluntary petition for relief or if a petition
against Tenant in a proceeding under the federal bankruptcy laws or
other insolvency laws is filed and not withdrawn or dismissed within
forty-five (45) days thereafter, or if under the provisions of any law
providing for reorganization or winding up of corporations, any court
of competent jurisdiction assumes jurisdiction, custody or control of
Tenant or any substantial part of its property and such jurisdiction,
custody or control remains in force unrelinquished, unstayed or
unterminated for a period of forty-five (45) days; or
G. If in any proceeding or action in which Tenant is a party, a trustee,
receiver, agent or custodian is appointed to take charge of the
Premises or Tenant's Property (or has the authority to do so) for the
purpose of enforcing a lien against the Premises or Tenant's Property;
or
H. If Tenant is a partnership or consists of more than one (1) person or
entity, if any partner of the partnership or other person or entity is
involved in any of the acts or events described in subparagraphs D.
through G. above.
27.2 Remedies. In the event of Tenant's default hereunder, then in addition to
any other rights or remedies Landlord may have under any law, Landlord shall
have the right, at Landlord's option, without further notice or demand of
any kind to do the following:
A. Terminate this Lease and Tenant's right to possession of the Premises
and reenter the Premises and take possession thereof, and Tenant shall
have no further claim to the Premises or under this Lease; or
B. Continue this Lease in effect, reenter and occupy the Premises for the
account of Tenant, and collect any unpaid Rent or other charges which
have or thereafter become due and payable; or
C. Reenter the Premises under the provisions of subparagraph B, and
thereafter elect to terminate this Lease and Tenant's right to
possession of the Premises.
If Landlord reenters the Premises under the provisions of subparagraphs B or
C above, Landlord shall not be deemed to have terminated this Lease or the
obligation of Tenant to pay any Rent or other charges thereafter accruing,
unless Landlord notifies Tenant in writing of Landlord's election to
terminate this Lease. In the event of any reentry or retaking of possession
by Landlord, Landlord shall have the right, but not the obligation, to
remove all or any part of Tenant's Property in the Premises and to place
such property in storage at a public warehouse at the expense and risk of
Tenant. If Landlord elects to relete the Premises for the account of Tenant,
the rent received by Landlord from such reletting shall be applied as
follows: first, to the payment of any indebtedness other than Rent due
hereunder from Tenant to Landlord; second, to the payment of any costs of
such reletting including but not limited to leasing brokerage fees; third,
to the payment of the cost of any alterations or repairs to the Premises;
fourth to the payment of Rent due and unpaid hereunder; and the balance, if
any, shall be held by Landlord and applied in payment of future Rent as it
becomes due. If that portion of rent received from the reletting which is
applied against the Rent due hereunder is less than the amount of the Rent
due, Tenant shall pay the deficiency to Landlord promptly upon demand by
Landlord. Such deficiency shall be calculated and paid monthly. Tenant shall
also pay to Landlord, as soon as determined, any costs and expenses incurred
by Landlord in connection with such reletting or in making alterations and
repairs to the Premises, which are not covered by the rent received from the
reletting.
TENANT'S INITIALS:______ LANDLORD'S INITIALS:_______
16
<PAGE>
Should Landlord elect to terminate this Lease under the provisions of
subparagraph A or C above, Landlord may recover as damages from Tenant
the following:
1. Past Rent. The worth at the time of the award of any unpaid Rent
which had been earned at the time of termination; plus
2. Rent Prior to Award. The worth at the time of the award of the
amount by which the unpaid Rent which would have been earned after
termination until the time of award exceeds the amount of such
rental loss that Tenant proves could have been reasonably avoided;
plus
3. Rent After Award. The worth at the time of the award of the amount
by which the unpaid Rent for the balance of the Term after the time
of award exceeds the amount of the rental loss that Tenant proves
could be reasonably avoided; plus
4. Proximately Caused Damages. Any other amount necessary to compensate
Landlord for all detriment proximately caused by Tenant's failure to
perform its obligations under this Lease or which in the ordinary
course of things would be likely to result therefrom, including, but
not limited to, any costs or expenses (including attorneys' fees),
incurred by Landlord in (a) retaking possession of the Premises, (b)
maintaining the Premises after Tenant's default, (c) preparing the
Premises for reletting to a new tenant, including any repairs or
alterations, and (d) reletting the Premises, including brokers'
commissions.
"The worth at the time of the award" as used in subparagraphs 1 and 2
above, is to be computed by allowing interest at the rate of the
percent (10%) per annum. "The worth at the time of the award" as used
in subparagraph 3 above, is to be computed by discounting the amount at
the discount rate of the Federal Reserve Bank situated nearest to the
Premises at the time of the award plus one percent (1%).
The waiver by Landlord of any breach of any term, covenant or condition
of this Lease shall not be deemed a waiver of such term, covenant or
condition or of any subsequent breach of the same or any other term,
covenant or condition. Acceptance of Rent by Landlord subsequent to any
breach hereof shall not be deemed a waiver of any preceding breach
other than the failure to pay the particular Rent so accepted,
regardless of Landlord's knowledge of any breach at the time of such
acceptance of Rent. Landlord shall not be deemed to have waived any
term, covenant or condition unless Landlord gives Tenant written notice
of such waiver.
27.3 Landlord's Default. Notwithstanding anything contained herein to the
contrary, the obligations of Landlord (including any actual or alleged
breach or default by Landlord) do not constitute personal obligations
of the individual partners, directors, officers or shareholders of
Landlord or Landlord's partners, and Tenant shall not seek recourse
against the individual partners, directors officers or shareholders of
Landlord or Landlord's partners, or any of their personal assets for
satisfaction of any liability with respect to this Lease other than
their interest in and to the project. If Landlord fails to perform any
covenant, condition or agreement contained in this Lease within thirty
(30) days after receipt of written notice from Tenant specifying such
default, or if such default cannot reasonably be cured within thirty
(30) days, if Landlord fails to commence to cure within that thirty
(30) day period, then Landlord shall be liable to Tenant for any
damages sustained by Tenant as a result of Landlord's breach; provided,
however, it is expressly understood and agreed that if Tenant obtains a
money judgment against Landlord resulting from any default or other
claim arising under this Lease, that judgment shall be satisfied only
out of the rents, issues, profits, and other income actually received
on account of Landlord's right, title and interest in the Premises,
Building or Project, and no other real, personal or mixed property of
Landlord (or of any of the partners which comprise Landlord, if any)
wherever situated, shall be subject to levy to satisfy such judgment.
If, after notice to Landlord of default, Landlord (or any mortgagee or
deed of trust beneficiary of Landlord) fails to cure the default as
provided herein, then Tenant shall have the right to cure that default
at Landlord's expense. Tenant shall not have the right to terminate
this Lease or to withhold, reduce or offset any amount against any
payments of Rent or any other charges due and payable under this Lease.
28. BROKERAGE FEES
Tenant warrants and represents that it has not dealt with any real estate
broker or agent in connection with this Lease or its negotiation except
Broker and Sales Agent as set forth in Article 2.C. Tenant shall indemnify
and hold Landlord harmless from any cost, expense or liability (including
costs of
TENANT'S INITIALS:______ LANDLORD'S INITIALS:_______
17
<PAGE>
suit and reasonable attorneys' fees) for any compensation, commission or
fees claimed by any other real estate broker or agent in connection with
this Lease or its negotiation by reason of any act of Tenant.
29. NOTICES
All notices, approvals and demands permitted or required to be given under
this Lease shall be in writing and deemed duly served or given if personally
delivered or sent by certified or registered U.S. mail, postage prepaid, and
addressed as follows: (a) if to Landlord, to Landlord's Mailing Address and
to the Building manager, and (b) if to Tenant, to Tenant's Mailing Address;
provided, however, notices to Tenant shall be deemed duly served or given if
delivered or mailed to Tenant at the Premises. Landlord and Tenant may from
time to time, by notice to the other, designate another place for receipt of
future notices.
30. GOVERNMENT ENERGY OR UTILITY CONTROLS
In the event of imposition of federal, state or local government controls,
rules, regulations, or restrictions on the use or consumption of energy or
other utilities during the Term, both Landlord and Tenant shall be bound
thereby. In the event of a difference in interpretation by Landlord and
Tenant of any such controls, the interpretation of Landlord shall prevail,
and Landlord shall have the right to enforce compliance therewith, including
the right of entry into the Premises to effect compliance.
31. QUIET ENJOYMENT
Tenant, upon paying the Rent and performing all of its obligations under
this Lease, shall peaceably and quietly enjoy the Premises, subject to the
terms of this Lease and to any mortgage, lease, or other agreement to which
this Lease may be subordinate.
32. FORCE MAJEURE
Any prevention, delay or stoppage of work to be performed by Landlord or
Tenant which is due to strikes, labor disputes, inability to obtain labor,
materials, equipment or reasonable substitutes therefore, acts of God,
governmental restrictions or regulations or controls, judicial orders, enemy
or hostile government actions, civil commotion, fire or other casualty, or
other causes beyond the reasonable control of the party obligated to perform
hereunder, shall excuse performance of the work by that party for a period
equal to the duration of that prevention, delay or stoppage. Nothing in this
Article 34 shall excuse or delay Tenant's obligation to pay Rent or other
charges under this Lease.
33. CURING TENANT'S DEFAULTS
If Tenant defaults in the performance of any of its obligations under this
Lease, Landlord may (but shall not be obligated to) without waiving such
default, perform the same for the account and at the expense of Tenant.
Tenant shall pay Landlord all costs, plus a 10% fee on all such costs, of
such performance promptly upon receipt of a bill therefore.
34. SIGN CONTROL
Tenant shall not affix, paint, erect or inscribe any sign, projection,
awning, signal or advertisement of any kind to any part of the Premises,
Building or Project, including without limitation, the inside or outside of
windows or doors, without the written consent of Landlord. Landlord shall
have the right to remove any signs or other matter, installed without
Landlord's written permission, without being liable to Tenant by reason of
such removal, and to charge the cost of removal to Tenant as additional rent
hereunder, payable within ten (10) days of written demand by Landlord.
35. MISCELLANEOUS
A. Accord and Satisfaction; Allocation of Payments. No payment by Tenant
or receipt by Landlord of a lesser amount than the Rent provided for in
this Lease shall be deemed to be other than on account of the earliest
due Rent, nor shall any endorsement or statement on any check or
letter accompanying any check or payment as Rent be deemed an accord
and satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance of the Rent or
pursue any other remedy provided for in this Lease. In connection with
the foregoing, Landlord shall have the absolute right in its sole
discretion to apply any payment received from Tenant to any account or
other payment of Tenant then not current and due or delinquent.
B. Riders. If any provision contained in a rider to this Lease is
inconsistent with any other
TENANT'S INITIALS:___ LANDLORD'S INITIALS:___
18
<PAGE>
provision herein, the provision contained in the rider shall control,
unless otherwise provided in the rider.
C. Attorneys' Fees. If any action or proceeding is brought by either party
against the other pertaining to or arising out of this Lease, the finally
prevailing party shall be entitled to recover all costs and expenses,
including reasonable attorneys' fees, incurred on account of such action
or proceeding.
D. Captions, Articles and Section Numbers. The captions appearing within the
body of this Lease have been inserted as a matter of convenience and for
reference only and in no way define, limit or enlarge the scope or
meaning of this Lease. All references to Article and Section numbers
refer to Articles and Sections in this Lease.
E. Changes Requested by Lender. Tenant shall not unreasonably withhold its
consent to changes or amendments to this Lease requested by Landlord's
lender, so long as these changes do not alter the basic business terms of
this Lease or otherwise materially diminish any rights or materially
increase any obligations of the Tenant.
F. Choice of Law. This Lease shall be construed and enforced in accordance
with the laws of the State.
G. Consent. Notwithstanding anything contained in this Lease to the
contrary, Tenant shall have no claim, and hereby waives the right to any
claim against Landlord for money damages by reason of any refusal,
withholding or delaying by Landlord of any consent, approval or statement
of satisfaction, and in such event, Tenant's only remedies therefore
shall be an action for specific performance, injunction or declaratory
judgment to enforce any right to such consent, etc.
H. Corporate Authority. If Tenant is a corporation, each individual signing
this Lease on behalf of Tenant represents and warrants that he is duly
authorized to execute and deliver this Lease on behalf of the
corporation, and that this Lease is binding on Tenant in accordance with
its terms. Tenant shall, at Landlord's request, deliver a certified copy
of a resolution of its board of directors authorizing such execution.
I. Counterparts. This Lease may be executed in multiple counterparts, all of
which shall constitute one and the same Lease.
J. Execution of Lease; No Option. The submission of this Lease to Tenant
shall be for examination purposes only, and does not and shall not
constitute a reservation of or option for Tenant to lease, or otherwise
create any interest of Tenant in the Premises or any other premises
within the Building or Project. Execution of this Lease by Tenant and its
return to Landlord shall not be binding on Landlord notwithstanding any
time interval, pending Landlord's Lender's approval of this Lease and
that Landlord has executed and delivered this Lease to Tenant.
K. Furnishing of Financial Statements; Tenant's Representations. To induce
Landlord to enter into this Lease or any extension thereof, Tenant agrees
that it shall promptly furnish Landlord, for Landlord's review and
approval, upon Landlord's written request, with financial statements
reflecting Tenant's current financial condition. Tenant represents and
warrants that all financial statements, records and information furnished
by Tenant to Landlord in connection with this Lease are true, correct and
complete in all respects.
L. Further Assurances. The parties agree to promptly sign all documents
reasonably requested to give effect to the provisions of this Lease.
M. Mortgagee Protection. Tenant agrees to send by certified or registered
mail to any mortgagee or deed of trust beneficiary of Landlord whose
address has been furnished to Tenant, a copy of any notice of default
served by Tenant on Landlord. If Landlord fails to cure such default
within the time provided for in this Lease, such mortgagee or beneficiary
shall have an additional thirty (30) days to cure such default; provided
that if such default cannot reasonably be cured within that thirty (30)
day period, then such mortgagee or beneficiary shall have such additional
time to cure the default as is reasonably necessary under the
circumstances.
N. Prior Agreements; Amendments. This Lease contains all of the agreements
of the parties with respect to any matter covered or mentioned in this
Lease, and no prior agreement or understanding pertaining to any such
matter shall be effective for any purpose. No provisions
TENANT'S INITIALS: __ LANDLORD'S INITIALS: __
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<PAGE>
of this Lease may be amended or modified except by an agreement in writing
signed by the parties or their respective successors in interest.
O. Severability. A final determination by a court of competent jurisdiction
that any provision of this Lease is invalid shall not affect the
validity of any other provision, and any provision so determined to be
invalid shall, to the extent possible, be construed to accomplish its
intended effect.
P. Successors and Assigns. This Lease shall apply to and bind the heirs,
personal representatives, and permitted successors and assigns of the
parties.
Q. Time of the Essence. Time is of the essence of this Lease.
R. Waiver. No delay or failure to exercise any right or remedy of Landlord
upon any default by Tenant shall impair such right or remedy or be
construed as a waiver of such default.
No act or conduct of Landlord, including, without limitation, the
acceptance of keys to the Premises, shall constitute an acceptance of the
surrender of the Premises by Tenant before the expiration of the Term.
Only a written notice from Landlord to Tenant shall constitute acceptance
of the surrender of the Premises and accomplish a termination of the
Lease.
Landlord's consent to or approval of any act by Tenant requiring
Landlord's consent or approval shall not be deemed to waive or render
unnecessary Landlord's consent to or approval of any subsequent act by
Tenant.
The parties hereto have executed this Lease as of the date set forth on page 1.
LANDLORD:
Sycamore San Diego Investors
By: Shell Properties Corporation, Agent
By: /s/ Jeffrey P. Server
-------------------------------------
Jeffrey P. Server, President
TENANT:
Protein Polymer Technologies, Inc.
By: /s/ J. Thomas Parmeter
--------------------------------------
J. Thomas Parmeter, President
TENANT'S INITIALS: __ LANDLORD'S INITIALS: __
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RIDER TO LEASE DATED April 13, 1998,
BY AND BETWEEN
Sycamore/San Diego Investors
an Illinois Limited Partnership, as Landlord
AND
Protein Polymer Technologies, Inc.
A Delaware corporation, as Tenant
Landlord and Tenant hereby agree that notwithstanding anything contained
in the Lease to the contrary, the provisions set forth below will be deemed to
be a part of the Lease and shall supersede, to the extent appropriate, any
contrary provision in the Lease. All references in the Lease and in this Rider
to "Lease" shall be construed to mean the Lease, as amended and supplemented by
this Rider. All terms used in this Rider, unless specifically defined in this
Rider, shall have the same meaning as the terms used in the Lease.
1. TENANT IMPROVEMENTS
-------------------
Within 180 days of the commencement date, Landlord shall re-carpet the
Premises at a total cost not to exceed $25,000.00 and replace all existing roof
mounted package and split system HVAC equipment with like-kind or better
equipment at a total cost not to exceed $75,000.00. Landlord and Tenant agree
that in the event there are excess funds remaining from the recarpeting and
installation of the HVAC system all such remaining funds shall be held in escrow
for the benefit of Tenant to make any other necessary improvements as Tenant
deems `reasonably necessary to the Premises. Tenant shall maintain all
bookkeeping records of such remaining excess funds and Landlord shall have the
right to review such account.
2. RENT ABATEMENT
--------------
For and in consideration of Tenant's execution of this Lease, Landlord
hereby grants to Tenant the full abatement of the Base Rent due under this Lease
for the month of May, 1998.
3. EXPANSION PREMISES
-------------------
Commencing September 1, 1999, that portion of the second floor at 10655
Sorrento Valley Road, commonly known as Suite 200, containing approximately
6.183 rentable square feet and shown by diagonal lines on the floor plan
appearing as Exhibit B hereto shall be incorporated within the Premises and
become subject to the same prevailing Lease terms and conditions for the initial
Premises including but not limited to the payment of rent at the same adjusted
rate per square foot at the time (and with the anniversary date adjustments
thereafter per Article 5.2) and the obligation to share, if any, pro rata excess
operating expenses (prorated for any partial year) but excluding tenant
improvements, if any, the cost of which shall be borne solely by the Tenant.
4. LANDLORD'S REPRESENTATION
-------------------------
Landlord hereby represents and warrants that to the best of Landlord's
knowledge, the use by Tenant of the Premises for the purposes set forth in the
Tenant Use Clause is not, as of
-1-
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the date of this Lease, in violation of any law or covenant, condition or
restriction affecting the Building or Project or the certificate of occupancy
issued for the Building or Project. Landlord further represents and warrants
that to the best of Landlord's knowledge, Tenant's use of the Premises for the
purposes set forth in the Tenant Use Clause will not, as of the date of this
Lease, invalidate any fire, extended coverage or other insurance policy covering
the Building or Project and/or property located therein, and to the best of
Landlord's knowledge complies with all rules, orders, regulations, requirements
and recommendations of the Insurance Services Office or any other organization
performing a similar function.
5. PROJECT OPERATING COSTS EXCLUSIONS
----------------------------------
Article 5.3 B(1)(b)(10)(1) is amended by deleting the words "or life
safety purposes."
Notwithstanding anything to the contrary set forth in Article 5 of the
Lease, Project Operating Costs shall not include the following:
(i) Any ground lease rental;
(ii) Any principal, interest, points or other fees on debts or
amortization on any mortgage or mortgages or any other debt instrument with
regard to the Project;
(iii) That portion of any costs of capital repairs, replacements,
improvements or equipment, including interest thereon, if any, which would
result in Tenant's pro rata share (for such capital items) exceeding the hereby
agreed upon amount of $3,200.00 per month during the Lease Term where such items
are described as those having a useful life in excess of one (1) year and where
the cost of such items are amortized over their reasonably anticipated lives
pursuant to generally accepted accounting principles consistently applied;
(iv) Rentals for items not directly required or involved in Landlord's
performance of its obligations pursuant to this Lease;
(v) Costs incurred by Landlord for the repair of damage to the Project
to the extent that Landlord is reimbursed by insurance proceeds;
(vi) Costs incurred by Landlord with respect to the negotiation or
installation of past, present, future or prospective tenants or occupants within
the Project including tenant improvement and refurbishment costs, space
planning, leasing commissions and other marketing costs, attorney costs and
other fees, and any other costs and expenses connected therewith;
(vii) Expenses for items and services not offered to Tenant, or for
which Tenant or any other tenant or occupant directly reimburses Landlord (other
than through Tenant's Proportionate Share of Project Operating Cost Increases);
(viii) Costs incurred by Landlord due to the violation by Landlord and/or
any other tenant or occupant of the terms and conditions of any other lease
agreement;
-2-
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<PAGE>
(ix) Overhead and profit increments paid to Landlord or to subsidiaries
or affiliates of Landlord for goods and/or services in the Project to the extent
the same exceeds the costs of such goods and/or services rendered by
unaffiliated third parties on a competitive basis;
(x) Landlord's general corporate overhead and administrative expenses;
(xi) Electric or gas power costs for which any tenant or occupant
directly contracts with the local public service company or private energy
company;
(xii) Governmental fines and/or tax penalties incurred as a result of
Landlord's negligence, inability or unwillingness to make payments when due;
(xiii) Landlord's charitable or political contributions;
(xiv) Costs, attorney's fees, judgments and payments arising from
claims, disputes, arbitration, litigation or the threat of litigation pertaining
to the Landlord and/or the Building and/or the Project or any other tenant or
occupant therein except where the tenants of the project would receive benefits
if Landlord prevails;
(xv) Costs incurred by Landlord which are not customarily treated as
"operating expenses" or "operating costs" at comparable research and development
office buildings;
(xvi) Costs, including permit, license and inspection costs, incurred
with respect to the installation of tenant improvements made for tenants in the
Building or incurred in renovating or otherwise improving, decorating, painting
or redecorating vacant space for tenants or other occupants of the Building; and
(xvii) Advertising and promotional expenditures.
6. ABATEMENT OF RENT WHEN TENANT IS PREVENTED FROM USING PREMISES
--------------------------------------------------------------
Notwithstanding anything to the contrary contained in the Lease, in the
event that Tenant is prevented from using, and does not use, the Premises or any
portion of the Premises greater than five percent (5%) of the Rentable Area of
the Premises for ten (10) consecutive days (the "Eligibility Period") as a
result of any damage or destruction to the Premises, or the taking of all or any
part of the Premises by eminent domain, or any failure on the part of Landlord
or Landlord's agents, employees, contractors or representatives, to provide
services or access to the Premises, except for those provided by public
utilities or other public entities over which Landlord has no control, then
Tenant's obligation to pay Rent shall be abated or reduced, as the case may be,
after expiration of the Eligibility Period, for such time that Tenant continues
to be so prevented from using, and does not use, the Premises or a portion
thereof, in the proportion that the Rentable Area of the portion of the Premises
that Tenant is prevented from using, and does not use, bears to the total
Rentable Area of the Premises. If Tenant's right to abatement occurs because of
an eminent domain taking and/or because of damage or destruction to the Premises
or Tenant's personal property, Tenant's abatement period shall commence
immediately and shall continue until Tenant has been given sufficient time (as
reasonably determined by
-3-
TENANT'S INITIALS: __ LANDLORD'S INITIALS: __
<PAGE>
Landlord and Tenant), and sufficient access to the Premises (as reasonably
determined by Landlord and Tenant), to rebuild the portion of the Premises it is
required to rebuild, to install its property, furniture, fixtures, and
equipment, and to move in over a weekend.
7. LIMITATION ON TENANT'S INDEMNITY
--------------------------------
Notwithstanding anything to the contrary contained in the Lease, Tenant
shall not be required to indemnify and hold harmless from any loss, cost,
liability, damage and expense, including, but not limited to, penalties, fines
and actual attorneys' fees and costs, (collectively "Claims"), to any person,
property, or entity resulting from any breach of the Lease by Landlord or any
default by Landlord thereunder or from the negligence or the willful misconduct
of Landlord or its agents, employees, in connection with Landlord's activities
in the Project and/or the Building (except for damage to the Tenant improvements
and Tenant's personal property, fixtures, furniture and equipment in the
Premises as to which Tenant is required to obtain the requisite insurance
coverage) and Landlord hereby so indemnifies and saves Tenant harmless from any
such Claims. However, Tenant's agreement to indemnify and hold harmless pursuant
to Article 21 of the Lease, and the agreement by Landlord to indemnify and hold
Tenant harmless set forth above are not intended to, and shall not relieve any
insurance carrier of its obligations under policies required to be carried by
Landlord or Tenant, respectively, pursuant to the provisions of the Lease to the
extent that such policies cover the results of such acts or conduct. The parties
hereby agree that if either party breaches this Rider provision by its failure
to carry required insurance, such failure shall automatically be deemed to be
the covenant and agreement by such party to self-insure said required coverage,
with full waiver of subrogation in favor of the other party. The parties further
agree that to the extent any damage or repair obligation of Tenant is covered by
insurance obtained by Landlord or would have been covered by insurance had
Landlord maintained the insurance required to be maintained by Landlord under
the Lease as part of the Project Operating Costs, but is not covered by
insurance obtained by Tenant, then Tenant shall be relieved of its indemnity
obligation up to the amount of the insurance proceeds which the Landlord
actually receives (or would have received had Landlord maintained insurance as
aforesaid).
8. RECIPROCAL INDEMNITY
--------------------
Notwithstanding anything contained in this Lease to the contrary, Landlord
hereby indemnifies and holds Tenant harmless from any loss, cost, liability,
damage or expense (including, but not limited to, penalties, fines, and
reasonable actual attorneys' fees and costs) to any person or property outside
of the Premises or unrelated to the Premises, (except if resulting from the sole
or joint and several negligent acts or omissions of Tenant or those of its
employees, licensees or agents) to the extent such loss, costs, liability,
damage or expenses are covered by the insurance obtained by Landlord. In the
event the Premises, the Building or the Project are damaged or destroyed and
such damage or destruction is covered by insurance' obtained by Landlord but not
covered by insurance obtained by Tenant, and further, that Tenant is not in
default hereunder and Tenant has fully complied with all insurance required to
be carried by Tenant hereunder, Landlord shall use the proceeds of its insurance
to repair the damage or destruction to the Premises, the Building and/or the
Project, subject to any rights either Landlord or Tenant may have to terminate
this Lease in the event such damage or destruction occurs.
-4-
TENANT'S INITIALS: __ LANDLORD'S INITIALS: __
<PAGE>
9. RULES AND REGULATIONS
---------------------
Landlord agrees that the Rules and Regulations of the Project, attached to
and made a part of this Lease as Exhibit "D" shall not be changed or revised at
Landlord's will in a manner which materially interferes with the purposes
permitted under Tenant's Use Clause and Landlord agrees to give Tenant thirty
(30) days prior written notice of any changes to the Rules and Regulations.
10. NON-DISTURBANCE AGREEMENTS
--------------------------
Landlord also agrees (a) to provide Tenant with commercially reasonable
Non-Disturbance Agreements in favor of Tenant from any ground lessors, mortgage
holders or lien holders of Landlord in existence as of the date of this Lease on
or before ninety (90) days after Commencement Date, and (b) to provide Tenant
with commercially reasonable Non-Disturbance Agreements in favor of Tenant from
any ground lessors, mortgage holders or lien holders of Landlord who later come
into existence at any time during the term of the Lease in consideration of, and
as a condition precedent to, Tenant's agreement to be bound by Article 24 of the
Lease. Such Non-Disturbance Agreement(s) shall provide that such Holders shall
be responsible for fulfilling all of Landlord's obligations pursuant to the
Lease.
11. LANDLORD'S ESTOPPEL CERTIFICATES
--------------------------------
Provided that Tenant is not at the time in default hereunder, then
Landlord within ten (10) days after written request from Tenant, Landlord shall
execute and deliver to Tenant or Tenant's designee, a written statement
certifying (a) this Lease is unmodified and in full force and effect, or in full
force and effect as modified in stating the modifications; (b) the amount of
Base Rent and date to which Base Rent and additional rent have been paid in
advance; (c) the amount of any security deposit held by Landlord; and (d) that
Tenant is not in default hereunder or, if Tenant is claimed in default, stating
the nature of any claim default. Any such statement may be relied upon by any
assignee, sublessee or lender. Landlord's failure to execute and deliver such
statement within the time required shall at Tenant's election be a default under
this Lease and shall be conclusive upon Landlord that: (1) this Lease is in full
force and effect and has not been modified except as represented by Tenant; and
(2) there are no uncured defaults in Tenant's performance.
12. ALTERATIONS AND ADDITIONS
---------------------------
Notwithstanding any limitations set forth in Article 12 of the Lease,
Tenant shall have the right to make minor, non-structural interior alterations,
improvements and additions to the Premises which are not visible from the
exterior of the Building, except for any life safety systems, without obtaining
Landlord's prior written consent where the cost of each such alteration,
improvement and addition does not exceed $2,500.00 so long as Tenant meets all
of the other requirements of said Article 12.
-5-
TENANT'S INITIALS: __ LANDLORD'S INITIALS: __
<PAGE>
13. DAMAGE AND DESTRUCTION
----------------------
Notwithstanding any language to the contrary in Article 19 of the Lease,
if the Premises or the portion of the Building or parking areas necessary for
Tenant's occupancy is damaged by fire, earthquake, act of God, the elements, or
other casualty, Landlord shall notify Tenant within thirty (30) days of said
casualty if Landlord, in its reasonable judgment, believes that the repairs will
take longer than sixty (60) days to complete, which notice shall include
Landlord's best estimate of the total time that said repairs will take to
complete (the "Estimate"). If the Estimate exceeds ninety (90) days, then Tenant
shall have the right to terminate the Lease by providing Landlord written notice
of Tenant's election to terminate within thirty (30) days of Tenant's receipt of
the Estimate, in which case the Lease shall terminate as of the date of the
casualty.
14. CONSENTS
--------
Except as provided to the contrary in this Lease, all consents to be given
by either party shall be reasonably and timely given.
15. SERVICES AND UTILITIES
----------------------
Landlord shall furnish to the Premises, subject to the provisions of
paragraph 5.3 of the Lease, utilities as specified in Article 9. All utilities,
including, without limitation, water, electricity, gas and sewer, shall be
available to the Premises 24 hours per day, every day throughout the term, in
quantities sufficient for Tenant's normal business operations. Landlord shall
also provide to Tenant access to the Premises 24 hours per day, every day
throughout the term. In the event that Tenant consumes services or utilities in
excess of that usually supplied to the Premises for use of the Premises as
general office space, as reasonably determined by Landlord, and such services or
utilities are not separately metered or otherwise directly paid for by Tenant,
then Landlord may under such circumstances establish a monthly pro rata charge
for Tenant's excess use or consumption of such services and utilities.
Notwithstanding any provisions of Article 9 of the Lease to the contrary,
Landlord shall provide natural gas and electricity, including steam generator,
vacuum, reverse osmosis/deionized water treatment system, uninterrupted power
supply, and emergency generator to the Premises. Landlord, Tenant and Tenant's
second floor co-tenant, shall cooperate to establish fair and equitable methods
for the proration of second floor costs of the natural gas and electricity
supplied by Landlord. Such agreed upon methods shall be in writing and
incorporated within the Lease. If no such methods can be agreed upon, the costs
of such utilities shall be prorated by Landlord on a straight square-footage
basis; provided, however, in the event that said formula does not lead to a fair
and equitable proration because the second floor tenants do not use electricity
or other utilities in proportionally equal amounts, Landlord shall adjust said
formula as necessary to lead to such fair and equitable proration. Any such
proration shall be reviewed from time to time so that it accomplishes the
purposes intended hereby. In either case, the prorated costs of such utilities
shall be additional rent due under the Lease.
-6-
TENANT'S INITIALS: __ LANDLORD'S INITIALS: __
<PAGE>
16. INSURANCE
---------
Beginning on the Commencement Date, and continuing until expiration of the
Term, Landlord shall procure, maintain in effect, pay for and be reimbursed as a
part of Project Operating Costs Commercial General Comprehensive Public
Liability Insurance or equivalent and property damage insurance with respect to
the use, operation, maintenance and condition of the Building and the Property
and the operations of Landlord in or about the Property and the Building
providing personal injury and broad form property damage coverage for not less
than Two Million Dollars ($2,000,000) combined single limit for bodily injury,
death and property damage liability.
17. ADDITIONAL MODIFICATIONS TO LEASE
---------------------------------
(i) Interest and Late Charges. The third sentence of Article 6 is
amended by deleting the words "ten percent (10%)" and inserting in lieu thereof
the words "five percent (5%)".
(ii) Services and Utilities. Article 9 is amended by adding the
following at the end thereof: "Tenant may supply its own janitorial service
provided the identity of the janitorial company and the specifications of its
work are approved in writing in advance by Landlord and, provided, in all events
the level of janitorial service provided by such company will be at least equal
to the level of the janitorial service provided to the balance of the Project,
in which event the standard janitorial charge shall not be included in Tenant's
Project Operating Costs."
(iii) Construction, Repairs and Maintenance. Article 11.A. is amended by
deleting at the first sentence the words "Exhibit C" and inserting in lieu
thereof "paragraph 1 of this Rider". Article 11.C. is amended at the first
sentence by deleting the words "or any covenant, condition or restriction".
(iv) Assignment and Subletting. Article 16.A, is amended by deleting at
the second from the last line where it first appears "twenty-five percent
(25%)" and inserting in lieu thereof "a controlling interest". The following is
added at the end of Article 16.A.: "Controlling interest means the ownership of
and the right to vote stock possessing at least fifty-one percent (51%) of the
total combined voting power of all classes of Tenant's capital stock issued,
outstanding and entitled to vote for the election of directors. "Article 16.B.
(5) is amended as follows: At the sixth line after the words "shall be paid to"
insert the words "one-half (1/2) to". The following is added at the end of
Article 16.B.(5): "Notwithstanding the foregoing, Landlord shall retain all of
such additional rent if Landlord releases Tenant from liability under this Lease
in connection with an assignment of the Lease provided Landlord may withhold
consent to release of Tenant from liability under this Lease for any reason or
for no reason whatsoever in Landlord's sole and absolute discretion."
(v) Destruction or Damage. Article 19.D. is amended by adding the
following at the end thereof: "... except where such damages are the result of
the gross negligence or willful misconduct of Landlord or Landlord's agents and
employees or is covered by Landlord's insurance.
-7-
TENANT'S INITIALS: __ LANDLORD'S INITIALS: __
<PAGE>
(vi) Indemnification. Article 21.A. is amended by adding the following
at the end thereof: "... for which Tenant is liable or which is covered by the
insurance which Tenant is required to provide pursuant to the terms of this
Lease.
(vii) Tenant's Insurance. Article 22.A. is amended by deleting at the
fifth line from the bottom of this section the following words "together with a
handling charge of twenty-five percent (25%) of the premium."
(viii) Default. Article 27.1.B. is amended by deleting the words "five
(5)" and inserting in lieu thereof the words "ten (10)".
The last sentence of Article 27.3 is deleted and the following sentence is
inserted in lieu thereof: "Tenant shall not have the right to terminate this
Lease but may withhold, reduce or offset the amount of any money judgment amount
against any payments of Rent or any other charges due and payable under this
Lease. "
(ix) Sign Control. Article 34 is amended by inserting at the third line
after the words "without the" the word "prior".
(x) Miscellaneous. Article 35.R. is amended by deleting at the first
line the word "Landlord" and inserting the words "a party" in lieu thereof and
by deleting at the second line the word "Tenant" and inserting in lieu thereof
the words "the other party".
(xi) Exhibit F is amended by adding at the end of section 3.B. the
following: "to the extent possible and only with regard to the observation of
the effluent.
The parties hereto have executed this Rider as of the date set forth
hereinabove.
LANDLORD:
SYCAMORE SAN DIEGO INVESTORS
By: Shell Properties Corporation, Agent
By: /s/ Jeffrey P. Server
-----------------------------------
Jeffrey P. Server
TENANT:
PROTEIN POLYMER TECHNOLOGIES, INC.
By: /s/ J. Thomas Parmeter
-----------------------------------
J. Thomas Parmeter, President
-8-
<PAGE>
EXHIBIT "A"
-----------
First Floor
10655 Sorrento Valley Road
[FIRST FLOOR PLAN APPEARS HERE]
<PAGE>
EXHIBIT "A"
-----------
Second Floor
10655 Sorrento Valley Road
[SECOND FLOOR PLAN APPEARS HERE]
<PAGE>
EXHIBIT "A"
-----------
SYCAMORE CREEK OFFICE R&D PARK
10655 10665 10675 Sorrento Valley Rd.
San Diego, CA
[PROPERTY GRAPHIC APPEARS HERE]
-3-
<PAGE>
EXHIBIT "B"
Expansion Premises
Suite 201
10655 Sorrento Valley Road
[GRAPHIC APPEARS HERE]
EXHIBIT B
<PAGE>
"EXHIBIT D"
RULES & REGULATIONS
-------------------
1. No sign, placard, picture, advertisement, name or notice shall be
inscribed, displayed or printed or affixed on or to any part of the outside
or inside of the Building or the Premises, other than the building standard
sign installed by Landlord at the time tenant occupies the Premises,
without the 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 erected without written permission of
Landlord without notice to and at the expense of Tenant. All approved signs
or lettering on doors shall be printed, painted, affixed or inscribed at
the expense of Tenant by a person approved by Landlord. The bulletin board
or directory of the Building will be provided exclusively for the display
of the name and location of Tenants of the Building and only Landlord
reserves the right to exclude any other names therefrom. Landlord 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 awnings or other projection shall be attached to the outside
walls of the Building without the prior written consent of the Landlord. No
curtains, blinds, shades or screens shall be attached to or hung in, or
used in connection with, any window or door of the Premises visible from
the exterior of the building without the prior consent of the Landlord.
2. The sidewalks, halls, passages, exits, entrances, elevators, and stairways
shall not be obstructed by any of the tenants or used by them for any
purpose other than for ingress to and egress from their respective
Premises. The halls, passages, exits, entrances,elevators, stairways,
terraces, wharf and roof are not for the use of the general public, and the
Landlord shall in all cases retain the right to control and prevent access
thereto by all persons whose presence in the judgment of the Landlord shall
be prejudicial to the safety, character, reputation and interest of the
Building and its tenants, provided that nothing herein contained shall be
construed to prevent such access to persons with whom Tenant normally deals
in the ordinary course of business unless such persons are engaged in
illegal activities. No Tenant and no employee or invitees of any Tenant
shall go upon the roof of the Building.
3. No additional locks or bolts of any kind except for a Tenant-provided
security system shall be placed upon any of the doors or windows by Tenant,
nor shall any changes be made in existing locks or the mechanism thereof.
Landlord will furnish two keys to the Premises without charge to Tenant.
Landlord will make a reasonable charge for additional keys requested by
Tenant. Tenant shall, upon the termination of this tenancy, restore to
Landlord all keys of stores, offices, and toilet rooms, either furnished to
or otherwise procured by such Tenant, and in the event of the loss of any
keys so furnished, Tenant shall pay Landlord the cost of replacing the same
or of changing the lock or locks opened by such lost key if Landlord shall
deem it necessary to make such change.
4. The toilets and wash basins and other plumbing fixtures shall not be used
for any purpose other than those for which they were constructed, and no
sweepings, rubbish, rags or other foreign substances shall be thrown
therein. All damage resulting from any misuse of the fixtures shall be
borne by Tenant who, or whose employees, agents, visitors or licensees,
shall have caused the same.
5. No Tenant shall lay linoleum, tile, carpet or other similar floor covering
so that the same shall be affixed to the floor of the Premises in any
manner except by paste, or other material, which may easily be removed with
water; the use of cement or other similar adhesive materials being
expressly prohibited. The method of affixing any such linoleum, tile,
carpet, or other similar floor covering shall be subject to the approval of
Landlord. The expense of repairing any damage resulting from a violation of
this rule shall be borne by any Tenant by whom, or by whose contractors,
employees, or invitees, the damage shall have been caused.
No painting shall be done, nor shall any alterations be done to any part of
the Building or Premises by butting up or changing any partition or
partitions, door or doors, window or windows, nor shall there be any
nailing, boring or screwing into the walls, woodwork or plastering without
the consent of Landlord or its agent. Landlord shall not permit any
contractor or other person making any alterations, additions or
installations within the Premises to use the hallways, lobby, or corridors
as storage or work areas without the prior written consent of Landlord.
Tenant shall be liable for and shall pay the expense of any additional
cleaning or other maintenance required to be performed by Landlord as a
result of the transportation or storage of materials or work performed
within the Building by or for Tenant.
6. Landlord shall have the right to prescribe the weight, size and position of
all safes and other heavy equipment brought into the Building and also the
times and manner of moving the same in and out of the Building. Safes or
other heavy objects shall be placed as directed by Landlord to properly
distribute the weight. Landlord will not be responsible for loss of or
damage to any such safe or property from any cause, and all damage done to
the Building by moving or maintaining any such
TENANT'S INITIALS:___ LANDLORD'S INITIALS:___
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<PAGE>
safe or other property shall be repaired at the expense of Tenant. There
shall not be used in any space, or in the public halls of the Building,
either by Tenant or others, any hand trucks except those equipped with
rubber tires and side guards.
7. Tenant shall not employ any person or persons other than the janitor of
Landlord for the purpose of cleaning the Premises unless otherwise agreed
to by Landlord. Except with the written consent of Landlord, no person or
persons other than those approved by Landlord shall be permitted to enter
the Building for the purpose of cleaning the same. Tenant shall not cause
any unnecessary labor by reason of its carelessness or indifference in the
preservation of good order and cleanliness. Landlord shall in no way be
responsible to any Tenant for any loss of property on the Premises, however
occurring, or for any damage done to the effects of any Tenant by the
janitor or any other employee or any other person. Janitor service shall
include ordinary dusting and cleaning by the janitor assigned to do such
work and shall not include cleaning of carpets or rugs, except normal
vacuuming, or moving of furniture and other special services.
8. Tenant shall not permit or suffer the Premises to be occupied or used in a
manner offensive or objectionable to Landlord or other occupants of the
Building by reason of noise, odors and/or vibrations, or interfere in any
way with other tenants or those having business therein. No Tenant shall
make or permit to be made any unseemly or disturbing noises or disturb or
interfere with occupants of this or neighboring Buildings or Premises of
those having business with them whether by the use of any musical
instrument, radio, phonograph, unusual noise, or in any other way.
9. Landlord reserves the right to exclude or expel from the Building any
person who, in the judgment of Landlord, is intoxicated or under the
influence of liquor or drugs, or who shall in any manner do any act in
violation of any of the rules and regulations of the Building.
10. The requirements of Tenant will be attended to only upon application at the
Office of the Building. Employees of Landlord shall not perform any work or
do anything outside of their regular duties unless under special
instructions from Landlord, and no employee will admit any person (Tenant
or otherwise) to any office without specific instructions from Landlord.
11. Tenant agrees that it shall comply with all fire and security regulations
issued by responsible governmental agency and also shall provide Landlord
with the name of a designated responsible employee to represent Tenant in
all matters pertaining to such fire or security regulations.
12. Landlord reserves the right by written notice to Tenant, to rescind, alter
or waive any rule or regulation at any time prescribed for the Building
when, in Landlord's judgment, it is necessary, desirable or proper for the
best interest of the Building, unless it constitutes a material
interference with Tenant's business.
13. Tenant shall not disturb, distribute, solicit, or canvass any occupant of
the Building and shall cooperate to prevent same.
14. No Tenant shall permit or suffer any window to be opened in Tenant's
Premises while the airconditioning is in operation except at the Direction
of Landlord.
TENANT'S INITIALS:___ LANDLORD'S INITIALS:___
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<PAGE>
EXHIBIT F
HAZARDOUS SUBSTANCES
--------------------
1. HAZARDOUS SUBSTANCES
A. Reportable Uses Require Consent. The term "Hazardous Substance" as used
in this Lease shall mean any product, substance, chemical, material or
waste whose presence, nature, quantity and/or intensity of existence,
use manufacture, disposal, transportation, spill, release or effect,
either by itself or in combination with other substances expected to be
on the Premises, is either: (i) potentially injurious to the public
health, safety or welfare, the environment, or the Premises; (ii)
regulated or monitored by any governmental authority; or (iii) a basis
for potential liability of Landlord to any governmental agency or third
party under any applicable statute or common law theory. Hazardous
Substance shall include, but not be limited to, hydrocarbons, petroleum,
gasoline, crude oil or any products or by-products thereof. Tenant shall
not engage in any activity in or about the Premises which constitutes a
Reportable Use (as hereinafter defined) of Hazardous Substances without
the express prior written consent of Landlord (which consent shall not
be unreasonably delayed or withheld) and compliance in a timely manner
(at Tenant's sole cost and expense) with all Applicable Requirements as
defined in Paragraph D hereunder. "Reportable Use" shall mean (i) the
installation or use of any above or below ground storage tanks, (ii) the
generation, possession, storage, use, transportation, or disposal of a
Hazardous Substance that requires a permit from, or with respect to
which a report, notice, registration or business plan is required to be
filed with, any governmental authority, and (iii) the presence in, on or
about the Premises of a Hazardous Substance with respect to which any
Applicable Laws require that a notice be given to persons entering or
occupying the Premises or neighboring properties. Notwithstanding the
foregoing, Tenant may, without Landlord's prior consent, but upon notice
to Landlord and in compliance with all Applicable Requirements, use any
ordinary and customary material reasonably required to be used by Tenant
in the normal course of the Permitted Use, so long as such use is not a
Reportable Use and does not expose the Premises or neighboring
properties to any meaningful risk of contamination or damage or expose
Landlord to any liability therefore. In addition, Landlord may (but
without any obligation to do so) condition its consent to any reportable
Use of any Hazardous Substance by Tenant upon Tenant's giving Landlord
such additional assurances as Landlord, in its reasonable discretion,
deems necessary to protect itself, the public, the Premises, this
Project and the environment against damage, contamination or injury
and/or liability therefore, including but not limited to the
installation (and, at Landlord's option, removal on or before Lease
expiration or earlier termination) of reasonably necessary protective
modification to the Premises (such as concrete encasements) and/or the
deposit of an additional Security Deposit under Article 7 of the Lease.
B. Duty to Inform Landlord. If Tenant knows or he has the reasonably cause
to believe, that a Hazardous Substances has come to be located in, on,
under or about the Premises or the Building other than as previously
consent to by Landlord, which consent shall not be unreasonably delayed
or withheld, Tenant shall immediately give Landlord written notice
thereof, together with a copy of any statement, report, notice,
registration, application, permit, business plan, license, claim,
action, or proceeding given to, or received from, any governmental
authority or private party concerning the presence, spill, release,
discharge of, or exposure to, such Hazardous Substance including but not
limited to all such documents as may be involved in any Reportable Use
involving the Premises. Tenant shall not cause or permit any Hazardous
Substance to be spilled or released in, on, under or about the Premises
(including, without limitation, through the plumbing or sanitary sewer
system).
C. Indemnification. Tenant shall indemnify, protect, defend and hold
Landlord, its agents, employees, lenders and ground lessor, if any, and
the Premises, harmless from and against any and all damages,
liabilities, judgements, costs, claims, liens, expenses, penalties, loss
of permits and reasonable attorneys' and consultants' fee arising out of
or involving any Hazardous Substance brought onto the Building and
Project by or for Tenant or by anyone under Tenant's control. Tenant's
obligations under this Paragraph 1.C. shall include, but not be limited
to, the effects of any contamination or injury to person, property or
the environment created or suffered by Tenant, and the cost of
investigation (including reasonable consultants' and attorneys' fees and
testing), removal, Remedial Work, restoration and/or abatement thereof,
or of any contamination therein involved, and shall survive the
expiration or earlier termination of this Lease. No termination,
cancellation or release agreement entered into by Landlord and Tenant
shall release Tenant from its obligations under this Lease with respect
to Hazardous Substances, unless specifically so agreed by Landlord in
writing at the time of such agreement. Neither the consent by Landlord
to the use, generation, storage, release, disposal or transportation of
Hazardous Substances nor the strict compliance with all Applicable
Requirements shall excuse Tenant from Tenant's
TENANT'S INITIALS:___ LANDLORD'S INITIALS:___
-1-
<PAGE>
indemnification obligations. Landlord shall indemnify, protect, defend
and hold Tenant, its agents and employees harmless from and against any
and all damages, liabilities, judgements, costs, claims, liens,
expenses, penalties, loss of permits and reasonable attorneys' and
consultants' fees arising out of or involving any Hazardous Substance
brought on the Building and Project by or for Landlord or by anyone
under Landlord's control. Landlord's obligations under this Paragraph
1.C. shall include, but not be limited to, the effects of any
contamination or injury to person, property or the environment created
or suffered by Landlord, and the cost of investigation (including
reasonable consultants' and attorneys' fees and testing), removal,
remediation, restoration and/or abatement thereof, or of any
contamination therein involved, and shall survive the expiration or
earlier termination of this Lease. No termination, cancellation or
release agreement entered into by Landlord and Tenant shall release
Landlord from its obligations under this Lease with respect to Hazardous
Substances, unless specifically so agreed by Tenant in writing at the
time of such agreement.
D. Tenant's Compliance with Requirements. Tenant shall, at Tenant's sole
cost and expense, fully, diligently and in a timely manner, comply with
all "Applicable Requirements", which term is used in this Lease to mean
all laws, rules, regulations, ordinances, directives, covenants,
easements and restrictions of record, permits, the requirements of any
applicable fire insurance underwriter or rating bureau, and the
reasonable recommendations of Landlord's engineers and/or consultants,
relating in any manner to the Premises, Building or Project or the
activities of Tenant or anyone under Tenant's control in the Premises,
Building and Project (including, but not limited to matters pertaining
to (i) industrial hygiene, (ii) environmental conditions on, in, under
or about the Premises, including soil and groundwater conditions, and
(iii) the use, generation, manufacture, production, installation,
maintenance, removal, transportation, storage, spill, or release of any
Hazardous Substance), now in effect or which may hereafter come into
effect. Tenant shall, within five (5) days after receipt of Landlord's
written request, provide Landlord with copies of all documents and
information, including but not limited to permits, registrations,
manifests, applications, reports and certificates, evidencing Tenant's
compliance with any Applicable Requirements specified by Landlord, and
shall immediately upon receipt, notify Landlord in writing (with copies
of any documents involved) of any threatened or actual claim, notice,
citation, warning, complaint or report pertaining to or involving
failure by Tenant or the Premises to comply with any Applicable
Requirements.
E. Inspection; Compliance with Law. Landlord, Landlord's agents, employees,
contractors and designated representatives, and the holders of any
Security Device ("Lenders") shall have the right to enter the Premises
at any time in the case of an emergency (provided that Landlord shall be
given Tenant notice of Landlord's entry into the Premises promptly after
such entry), and otherwise at reasonable times and upon reasonable
advance notice, for the purpose of inspecting the condition of the
Premises and for verifying compliance by Tenant with this Lease and all
Applicable Requirements, and Landlord shall be entitled to employ
experts and/or consultants in connection therewith to advise Landlord
with respect to Tenant's activities relating to Tenant's installation,
operation, use, monitoring, maintenance, or removal of any Hazardous
Substance on or from the Premises. Except the case of any emergency,
Tenant shall be permitted to have a representative of Tenant accompany
such inspections, provided that the non-availability of a Tenant
representative shall not delay or prevent Landlord from performing such
an inspection. The costs and expenses of any such inspections shall be
paid by the party requesting the same, unless a default or breach of
this Lease by Tenant or a violation of Applicable Requirements or
contamination, caused or materially contributed to by Tenant, is found
to exist or to be imminent, or unless the inspection is required or
ordered by a governmental authority as the result of any such existing
or imminent violation or contamination, In such case, Tenant shall upon
request reimburse Landlord or Landlord's Lender, as the case may be, for
Landlord's actual costs and expenses of such inspections reasonably
incurred by Landlord.
F. Environmental Assessment. Prior to the Commencement date, Landlord shall
have conducted (or received from the immediately preceding tenant of the
Premises) and "Entrance Assessment", consisting of an updated Phase 1
Environmental Assessment and such other tests as listed in the
"Assessment Criteria" set forth in Paragraph 3 below, by an
environmental consultant reasonably acceptable to Landlord. A copy of
such Entrance Assessment shall be delivered to Tenant as soon as
available and said Assessment shall be deemed to be the baseline
environmental condition of the Premises upon Tenant's occupancy. To the
extent such Entrance Assessment indicates the existence of any Hazardous
Substances in the Premises in violation of Applicable Requirements,
remediation of such Hazardous Substance condition shall be performed at
Landlord's cost and shall be remediated as soon as possible after the
date Landlord receives notice of such Hazardous substance condition. The
cost of the Entrance Assessment shall be paid by Landlord. Prior to
Tenant's surrender of the Premises, Tenant shall conduct an "Exit
Assessment", consisting of an updated Phase 1 Environmental Assessment
and such other tests as listed in the Assessment Criteria, by an
TENANT'S INITIALS:___ LANDLORD'S INITIALS:___
-2-
<PAGE>
environmental consultant selected by Tenant and reasonably acceptable to
Landlord and shall include Tenant's Storage Units, if any. Landlord
shall receive a copy of the report(s) of the Exit Assessment, and said
report(s) shall be deemed the environmental condition of the Premises
upon Tenant's surrender of the Premises. The cost of the Exit Assessment
shall be paid by Tenant. The Entrance and Exit Assessments shall be
performed by an independent environmental consultant with expertise in
performing environmental analyses of biotechnology laboratory and
manufacturing facilities.
G. Remedial Work. Tenant shall perform any monitoring, testing,
investigation, clean up, removal, detoxification, preparation of closure
or other required plans and any other remedial work required by any
governmental agency or reasonably recommended by Landlord or the
environmental consultants performing the Exit Assessment, as a result of
any release or discharge or potential release or discharge of Hazardous
Substances and resulting in contamination or any violation or potential
violation of Applicable Requirements by Tenant or any successor or
subtenant of Tenant or their respective agents, contractors, employees,
licensees or invitees (collectively "Remedial Work"). Landlord shall
have the right to intervene in any governmental action or proceeding
involving any Remedial work and to approve performance of the work
(which approval shall not be unreasonably delayed or withheld), to
reasonably protect Landlord's interests. Tenant shall not enter into any
settlement agreement, consent decree or other compromise with respect to
any claims relating to Hazardous Substances without notifying Landlord
and providing ample opportunity for Landlord to intervene.
H. Compliance with Insurance Requirements. Tenant shall comply with the
requirements of Landlord's and Tenant's Insurers regarding Hazardous
Substances and with such insurers' recommendations based upon prudent
industry practices regarding management of Hazardous Substances.
I. Default. The release or discharge of any Hazardous Substance in
violation of Applicable Requirements or the violation of any Applicable
Requirements by Tenant or any successor or subtenant of Tenant shall be
a Default by Tenant under this Lease. In addition to or in Lieu of the
remedies available under the Lease as a result of such Default (after
the applicable notice and cure periods, if any), Landlord shall have the
right, without terminating the Lease, to require Tenant to suspend its
operations and activities on the Premises to the extent reasonably
necessary to protect Landlord's interest in the Building and Project and
until Landlord is satisfied that appropriate Remedial Work has been or
is being adequately performed; Landlord's election of this remedy shall
not constitute a waiver of Landlord's right thereafter to declare a
Default and pursue other remedies set forth in the Lease.
2. HAZARDOUS SUBSTANCES STORAGE
A. Storage Units
In addition to its Lease of the Premises and nonexclusive rights to the
common areas, Tenant shall have the exclusive right to use, in
accordance with all Applicable Requirements, an area designated by
Landlord in the common area in which Tenant may place a Hazardous
Substance Storage Unit ("Storage Unit"), for the temporary storage of
Hazardous Substances. The specific location shall be mutually agreed
upon by Landlord and Tenant; provided that Landlord shall have the right
to relocate any Storage Units within the Project from time to time, as
Landlord may reasonably determine is necessary for safe and efficient
operation of the Project. Tenant shall, at its sole cost and expense
(including, without limitation, licensing and permitting fees), keep the
Storage Units in good order, condition and repair (including, without
limitation, repairing and maintaining all safety and security systems
associated with such Storage Units) in accordance with all Applicable
Requirements.
B. Surrender
At the earlier of the termination of the Lease or Tenant's termination
of its use of any of the Storage Units, Tenant will retain a qualified
environmental consultant, at its sole cost, who is acceptable to
Landlord to perform an Exit Assessment of the Storage Units and those
portions of the common areas; (a) where the Storage Units were located
prior to its removal or lease termination, and (b) over which the path
of access between the Premises and the Storage Units was located. Such
Exit Assessment shall consist of, at a minimum, Paragraph A and D of the
Assessment Criteria in Paragraph 3 below, and all additional sampling
and surveys necessary to assure that all Hazardous Substances, including
but not limited to any radioactive materials, have been removed from the
Storage Units and Project. Tenant shall be required to perform at its
sole cost and expense all Remedial Work in connection
TENANT'S INITIALS:___ LANDLORD'S INITIALS:___
-3-
<PAGE>
therewith. Landlord shall be provided with a copy of the such Exit
Assessment as prepared by Tenant's consultant.
3. ENTRANCE/EXIT ASSESSMENT CRITERIA
For purposes of compliance with requirements of this Exhibit F, the term
"Assessment Criteria" with respect to the Premises shall refer to, and
include, the following studies and assessments:
A. Interior Site Assessment consisting of a visual inspection of all
surfaces (floors, walls, ceiling tiles, benches, interior of cabinets
and fume hoods) for signs of contamination and deterioration. Visual
inspection of all bench and hood sinks and readily accessible drain
lines for signs of deterioration, loss of integrity and leakage. The
Interior Site Assessment shall include detailed written documentation of
all observations and dated photos to document the existing condition
thereof.
B. Wastewater Collection System Assessment consisting of a flush and clean-
out of all discharge piping and traps with observation of effluent
during the clean-out.
C. To verify that there is no contamination of the laboratory hoods and
exhaust system, an inspection shall be made consisting of an inspection
of the laboratory hoods and exhaust system with detailed documentation
of all observances, including without limitation, observed solids,
liquids, odors or Hazardous Substances entrapment. Such inspect shall
include inspection of the roof area to determine the existence of any
deterioration from condensation of hazardous materials in the exhaust
system.
D. The Assessment Criteria shall also include such sampling and testing as
the consultant reasonably recommends based upon his/her observations.
TENANT'S INITIALS:___ LANDLORD'S INITIALS:___
-4-
<PAGE>
EXHIBIT "G"
-----------
- --------------------------------------------------------------------------------
CERTIFICATE OF INSURANCE ISSUE DATE (MM/DD/YY)
[_] 4/30/97
- --------------------------------------------------------------------------------
PRODUCER
E X H I B I T G
- --------------------------------------------------------------------------------
INSURED
- --------------------------------------------------------------------------------
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS
UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER
THE COVERAGE AFFORDED BY THE POLICIES BELOW
- --------------------------------------------------------------------------------
COMPANIES AFFORDING COVERAGE
- --------------------------------------------------------------------------------
COMPANY
LETTER A
- --------------------------------------------------------------------------------
COMPANY
LETTER B
- --------------------------------------------------------------------------------
COMPANY
LETTER C
- --------------------------------------------------------------------------------
COMPANY
LETTER D
- --------------------------------------------------------------------------------
COMPANY
LETTER E
- --------------------------------------------------------------------------------
COVERAGES
- --------------------------------------------------------------------------------
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED
TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY
REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO
WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY
THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND
CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
CO TYPE OF INSURANCE POLICY NUMBER POLICY EFF. POLICY EXP. LIMITS
TR DATE (MM/DD/YY) DATE (MM/DD/YY)
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C>
A GENERAL LIABILITY GENERAL AGGREGATE 2000000
------------------------------------
[X] COMM. GENERAL LIABILITY PROD-COMP/OP ACC. XCLUDED
------------------------------------
[_] CLAIMS MADE [X] OCC. PERS. & ADV. INJURY XCLUDED
------------------------------------
[_] OWNERS & CONTRACTS PROT EACH OCCURRENCE 1000000
------------------------------------
[_] _______________________ FIRE DAMAGE (One Fire) 50000
------------------------------------
MED. EXP. (One Per) 1000
- ------------------------------------------------------------------------------------------------------------------------------------
AUTOMOBILE LIABILITY COMBINED SINGLE
[_] ANY AUTO LIMIT
------------------------------------
[_] ALL OWNED AUTOS BODILY INJURY
(Per person)
[_] SCHEDULED AUTOS ------------------------------------
BODILY INJURY
[_] xxxx AUTOS (Per accident)
[_] NON-OWNED AUTOS
[_] GARAGE LIABILITY ------------------------------------
[_] PROPERTY DAMAGE
- ------------------------------------------------------------------------------------------------------------------------------------
EXCESS LIABILITY EACH OCCURRENCE
------------------------------------
[_] UMBRELLA FORM AGGREGATE
------------------------------------
[_] OTHER THAN UMBRELLA FORM
- ------------------------------------------------------------------------------------------------------------------------------------
STATUTORY LIMITS
WORKERS' COMPENSATION ------------------------------------
EACH ACCIDENT
AND ------------------------------------
DISEASE-POLICY LIMIT
EMPLOYER'S LIABILITY ------------------------------------
DISEASE-EACH EMP.
- ------------------------------------------------------------------------------------------------------------------------------------
OTHER
- ------------------------------------------------------------------------------------------------------------------------------------
DESCRIPTION OF OPERATIONS/LOCATIONS/XXXXXXXXX/SPECIAL ITEMS
CERTIFICATE HOLDER NAMED AS ADDITIONAL INSURED AS INTEREST MAY APPEAR
IN LOCATION AT 10655 SORRENTO VALLEY ROAD, SUITE #200, SAN DIEGO, CA.
10 DAY CANCELLATION NOTICE FOR NON-PAYMENT OF THE PREMIUM.
- ------------------------------------------------------------------------------------------------------------------------------------
CERTIFICATE HOLDER CANCELLATION
- ------------------------------------------------------------------------------------------------------------------------------------
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE
SYCAMORE/SAN DIEGO INVESTORS EXPIRATION DATE THEREOF, THE ISSUING COMPANY WILL
C/O SHELL PROPERTIES CORP. MAIL 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT.
SUITE #101
10665 SORRENTO VALLEY ROAD
SAN DIEGO, CA 92121 ------------------------------------------------------------------------------
AUTHORIZED REPRESENTATIVE
/s/ [SIGNATURE APPEARS HERE]
- ------------------------------------------------------------------------------------------------------------------------------------
ACORD 25-S (7/90)
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
EXHIBIT "G"
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-START> JAN-01-1998
<PERIOD-END> MAR-31-1998
<CASH> 267,992
<SECURITIES> 0
<RECEIVABLES> 4,356
<ALLOWANCES> (435)
<INVENTORY> 0
<CURRENT-ASSETS> 305,710
<PP&E> 1,897,252
<DEPRECIATION> (1,195,304)
<TOTAL-ASSETS> 1,200,937
<CURRENT-LIABILITIES> 830,613
<BONDS> 0
0
2,667,403
<COMMON> 22,893,806
<OTHER-SE> (25,360,748)
<TOTAL-LIABILITY-AND-EQUITY> 1,200,937
<SALES> 25,039
<TOTAL-REVENUES> 87,445
<CGS> 3,160
<TOTAL-COSTS> 9,410
<OTHER-EXPENSES> 1,355,272
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 7,495
<INCOME-PRETAX> (1,346,804)
<INCOME-TAX> 0
<INCOME-CONTINUING> (1,346,804)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (1,346,804)
<EPS-PRIMARY> (0.13)
<EPS-DILUTED> (0.13)
</TABLE>
