UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
Form 10-Q
[ X ] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended June 30, 1998
Commission File Number 0-22314
PENEDERM INCORPORATED
(Exact name of registrant as specified in its charter)
DELAWARE 77-0146116
(State of other jurisdiction of I.R.S Employer Identification Number
incorporation or organization)
320 LAKESIDE DRIVE FOSTER CITY, CALIFORNIA 94404
(Address of principal executive offices) (Zip Code)
(650) 358-0100
(Registrant's telephone number, including area code)
Indicate by check whether the registrant (1) has filed all
reports required to be filed by section 13 or 15(d) of the
Securities Exchange Act of 1934 during the preceding 12 month (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
Indicate number of shares outstanding of each of the issuer's
classes of common stock, at the latest practicable date:
Class Outstanding as of:JUNE 30, 1998
Common Stock 8,644,400
<PAGE>
PENEDERM INCORPORATED
TABLE OF CONTENTS
FORM 10-Q
Page
Number
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
Condensed Consolidated Balance Sheets-
June 30, 1998 and December 31, 1997 3
Condensed Consolidated Statements of Operations-
Three months ended June 30, 1998 and 1997 and
six months ended June 30, 1998 and 1997 4
Condensed Consolidated Statements of Cash Flows-
Three months ended June 30, 1998 and 1997 5
Notes to Condensed Consolidated Financial Statements 6
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations 8
PART II. OTHER INFORMATION
Item 2. Sale of Unregistered Securities 15
Item 4. Submission of Matters to a Vote of 16
Security Holders
Item 6. Exhibits and Reports on Form 8-K 16
Signature Page 17
<PAGE>
PENEDERM INCORPORATED
CONDENSED CONSOLIDATED BALANCE SHEETS
June 30, 1998 and December 31, 1997
(in thousands)
June 30, December 31,
1998 1997
----------- -----------
(unaudited) (Note)
ASSETS
Current assets:
Cash and cash equivalents $ 1,732 $ 1,519
Short-term marketable securities 1,000 3,102
Accounts receivable 7,280 1,013
Inventory 2,385 1,501
Prepaid expenses and other current assets 382 466
-------- --------
Total current assets 12,779 7,601
Marketable securities - 1,000
Property and equipment, at cost,less
accumulated depreciation and amortization 270 267
Intangible and other assets 1,720 1,363
-------- --------
Total assets $ 14,769 $ 10,231
======== ========
LIABILITIES
Current liabilities:
Accounts payable $ 1,039 $ 1,264
Accrued liabilities 6,208 3,763
-------- --------
Total current liabilities 7,247 5,027
Long-term obligations 5 10
-------- --------
Total liabilities 7,252 5,037
STOCKHOLDERS' EQUITY
Common stock, $.01 par value 86 82
Additional paid-in capital 61,111 56,222
Accumulated deficit (53,680) (51,110)
-------- --------
Total stockholders' equity 7,517 5,194
-------- --------
Total liabilities and stockholders' equity $ 14,769 $ 10,231
======== ========
See accompanying notes.
Note: The condensed consolidated balance sheet at December 31, 1997
has been derived from audited financial statements as of that date.
<PAGE>
PENEDERM INCORPORATED
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(in thousands except per share data)
(unaudited)
Three Months Ended Six Months Ended
June 30, June 30,
------------------- -------------------
1998 1997 1998 1997
---- ---- ---- ----
Revenues:
Product sales $ 4,388 $ 1,643 $ 7,118 $ 4,244
Royalties 1,236 - 1,236 -
Licensing revenues 700 360 1,971 660
--------- --------- --------- ---------
Total revenues 6,324 2,003 10,325 4,904
--------- --------- --------- ---------
Costs and expenses:
Cost of product sales 1,147 845 1,873 1,608
Research and development 1,134 1,259 2,963 2,482
Sales and marketing 3,736 1,769 6,128 3,932
General and administrative 594 603 1,102 931
Merger expenses 900 - 900 -
--------- --------- --------- ---------
Total costs and expenses 7,511 4,476 12,966 8,953
--------- --------- --------- ---------
Loss from operations (1,187) (2,473) (2,641) (4,049)
Interest income, net 27 151 71 210
--------- --------- --------- ---------
Net loss $ (1,160) $ (2,322) $ (2,570) $ (3,839)
========= ========= ========= =========
Basic and diluted net loss
per share $ (0.14) $ (0.29) $ (0.31) $ (0.49)
========= ========= ========= =========
Number of shares used in
computing basic and diluted
net loss per share 8,511 8,112 8,351 7,848
========= ========= ========= =========
See accompanying notes.
<PAGE>
PENEDERM INCORPORATED
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(in thousands)
(unaudited)
Six Months Ended
June 30,
--------------------
1998 1997
---- ----
Increase (decrease) in cash and cash
equivalents
Cash flows from operating activities:
Net loss $ (2,570) $ (3,839)
Adjustments to reconcile net loss to net
cash used in operating activities:
Depreciation and amortization 188 159
Increase in accounts receivable (6,267) (1,403)
Increase in inventory (884) (240)
Decrease (increase) in prepaid expenses
and other current assets 84 (75)
Increase (decrease) in accounts payable
and accrued liabilities 2,224 (118)
Increase in other assets (58) (2)
--------- ---------
Net cash used in operating activities (7,283) (5,518)
--------- ---------
Cash flows from investing activities:
Purchases of available-for-sale securities - (7,032)
Maturities of available-for-sale securities 2,102 266
Sales of available-for-sale securities 1,000 500
Acquisition of intangible assets (400) -
Acquisition of fixed assets (90) (54)
--------- ---------
Net cash provided by (used in) investing
activities 2,612 (6,320)
--------- ---------
Cash flows from financing activities:
Issuance of common stock in private placement - 8,975
Issuance of common stock under equity line
of credit 4,741 -
Proceeds from issuance of common stock 152 196
Repayment of long-term obligations (9) (8)
--------- ---------
Net cash provided by financing activities 4,884 9,163
--------- ---------
Net increase (decrease) in cash and cash
equivalents 213 (2,675)
Cash and cash equivalents at beginning of
period 1,519 3,062
--------- ---------
Cash and cash equivalents at end of period $ 1,732 $ 387
========= =========
See accompanying notes.
<PAGE>
PENEDERM INCORPORATED
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(unaudited)
1. Interim Unaudited Financial Information
The accompanying interim unaudited condensed
consolidated financial statements of Penederm
Incorporated (the Company or Penederm) for the three
and six month periods ended June 30, 1998 and 1997,
have been prepared in accordance with generally
accepted accounting principles for interim financial
statements and include all adjustments (consisting of
normal and recurring adjustments) that the Company
considers necessary for a fair presentation of the
operating results and cash flows for these periods. The
results of operations for the interim periods are not
necessarily indicative of the results to be expected
for an entire year. These financial statements should
be read in conjunction with the audited financial
statements and notes included as part of the Company's
Form 10-K for the year ended December 31, 1997.
2. Inventory
Inventories are stated at the lower of cost (first-in,
first-out) or market and consisted of the following:
June 30, December 31,
(In thousands) 1998 1997
------------ ------------
Raw materials $ 204 $ 572
Finished goods 2,181 929
------------ ------------
$ 2,385 $ 1,501
============ ============
3. Merger Expenses
The Company's expenses for the quarter ended June 30,
1998 include $900,000 of investment banking, legal and
accounting expenses related to its pending acquisition
by Mylan Laboratories Inc. announced on June 24, 1998.
4. Net Loss Per Share
Net loss per share is computed using the weighted
average number of common shares outstanding during the
period. Common stock equivalents relating to stock
options are excluded from the computation as their
effect is anti-dilutive.
<PAGE>
5. Comprehensive Income
As of January 1, 1998, the Company adopted Statement of
Financial Accounting Standard (SFAS) No. 130, Reporting
Comprehensive Income. SFAS 130 establishes new rules
for the reporting and presentation of comprehensive
income and its components; however, the adoption of
this statement had no impact on the Company's net loss
or stockholders' equity.
<PAGE>
Part I Item 2. Management's Discussion and Analysis of
Financial Condition and Results of Operations
Forward Looking Statements
The statements in "Management's Discussion and Analysis
of Financial Condition and Results of Operations" that
relate to future plans, events or performance,
including statements relating to future revenue and
expense levels, are forward-looking statements which
involve risks and uncertainties including, but not
limited to, product development and market acceptance
risks, product manufacturing risks, risks associated
with the establishment and management of a sales force,
the development of competitive therapies, the pricing
of competitive therapies, the results of current and
future licensing and other collaborative relationships,
the results of financing efforts, developments
regarding intellectual property rights and litigation,
risks of product nonapproval or delays or post-approval
reviews by the FDA or foreign regulatory authorities,
and other risks identified in the Company's most recent
Form 10-K and other Securities and Exchange Commission
filings. Actual results, events or performance may
differ materially. The Company undertakes no obligation
to update these forward-looking statements to reflect
events or circumstances after the date hereof or to
reflect the occurrence of unanticipated events.
Recent Events
On June 24, 1998, Mylan Laboratories Inc. (Mylan) and
the Company announced that they had entered into a
definitive agreement whereby Mylan will acquire
Penederm in a tax-free reorganization by exchanging
0.68 shares of Mylan common stock for each share of
Penederm common stock. The Boards of Directors of both
companies have unanimously approved the agreement. The
consumation of the transaction is subject to the
approval of the Company's stockholders and other
customary closing conditions.
On June 30 and July 2, 1998, the Company and Schering-
Plough HealthCare Products Inc. (Schering Plough)
entered into additional letter amendments to their 1994
agreement. Under these amendments, Schering Plough
agreed to a milestone obligation as of June 30, 1998
and to make certain additional milestone payments over
the remainder of 1998 and exclusively sublicensed to
the Company certain rights to market the topical
prescription nail antifungal product to certain
categories of physicians that it obtained under the
original agreement in 1994. In exchange, Penederm will
pay Schering royalties on sales of the product to this
category of physicians. Schering Plough retains its
OTC rights to the product and rights to improvements to
the topical nail product.
<PAGE>
Part I Item 2. Management's Discussion and Analysis of
Financial Condition and Results of Operations
(continued)
Effective July 1, 1998, the Company's Senior Vice
President of Research and Development, John W. Quigley
Jr., Ph.D. assumed a new position of Senior Science
Advisor in which he continues to report to the
President and CEO. In conjunction with the change in
Dr. Quigley's status, Bhaskar Chaudhuri, Ph.D., Vice
President, Pharmaceutical Sciences and Mary Treuhaft,
Vice President of Regulatory and Clinical Affairs, will
now report directly to the President and CEO.
On July 10, 1998, the Company and Mylan announced that
Bertek Pharmaceutical Inc., a subsidiary of Mylan, had
entered into an agreement effective June 30, 1998 to co-
promote Avita, Penederm's topical retinoic acid
product, to primary care physicians in the United
States. The agreement provides for a license fee and
an advance against Penederm's share of the profits
under the agreement. The license fee was recorded as
licensing revenue in the quarter ended June 30, 1998
and the advance was recorded as deferred revenues. The
advance will be recognized as income as the Company
recognizes profits under the agreement. Both the
license fee and the advance are included in accounts
receivable at June 30, 1998.
On July 21, 1998, the Company announced it had entered
into a co-promotion agreement with Pedinol Pharmacal
Inc. (Pedinol), a privately held specialty
pharmaceutical company, under which Pedinol will
promote Mentax, Penederm's topical prescription
antifungal product to podiatrists in the United States.
Overview
Penederm is a pharmaceutical company that specializes
in developing and marketing dermatology products.
Penederm now offers four prescription topical drug
treatments to dermatologists:
Mentax, a prescription topical cream treatment
for three skin fungal conditions: tinea pedis
(athlete's foot), tinea corporis (ringworm) and
tinea cruris (groin fungus)
Avitacream and gel, prescription topical
treatments for acne, and
Acticin, a prescription topical cream treatment
for scabies infection.
<PAGE>
Part I Item 2. Management's Discussion and Analysis of
Financial Condition and Results of Operations
(continued)
Penederm has several other pharmaceutical products for
fungal inflammatory conditions, psoriasis, nail fungus
and Mentax skin treatment line extensions in human
clinical trials. The Company also sells its patented
TopiCare Delivery Compounds for use in cosmetics and
personal care products, and markets its own over-the-
counter (OTC) skin care products. Penederm has
established collaborative relationships with other
pharmaceutical companies as follows:
COMPANY PRODUCT AREA TERRITORY
In-License and Co-
Development
Agreements:
- ------------------
Kaken Penederm in-licensed United States, Canada,
Pharmaceutical butenafine, the Mexico and Latin
Company Ltd. active ingredient America for skin
(Kaken) incorporated in antifungal; U.S.,
Mentax Canada, Europe, Mexico,
Latin America,
Australia and New
Zealand for nail
antifungal
SmithKline Beecham Undisclosed OTC SmithKline option to
plc (SmithKline) product market worldwide
Alpharma, Inc. Acticin for scabies United States
(Alpharma)
Out-License
Agreements:
- ------------------
Schering-Plough Prescription and OTC United States and
HealthCare skin antifungal and Canada
Products, Inc. nail antifungal
(Schering-Plough)
UCB Group of Prescription Europe, Africa and
Belgium (UCB) antifungal products Middle East
Warner Wellcome OTC dry skin Canada
Consumer Health
Products (Warner)
SmithKline OTC consumer Europe and Eastern
products Europe
Pierre Fabre Inc. DuraScreen sunscreen United States
(Pierre Fabre)
Allergan, Inc. Butenafine topical Central and South
(Allergan) antifungal and America
retinoic acid cream
and gel
Mylan Co-promote Mentax United States
Laboratories, Inc. and Avita to
(Mylan) selected physician
groups
Pedinol Pharmacal Co-promote Mentax to United States
Inc. (Pedinol) podiatrists
<PAGE>
Part I Item 2. Management's Discussion and Analysis of
Financial Condition and Results of Operations
(continued)
The Company has been unprofitable since inception. For
the period from inception through June 30, 1998, the
Company incurred a cumulative net loss of $53,680,000.
Penederm's sources of working capital have been equity
financings, product sales, corporate licensing payments
and interest earned on investments.
Results of Operations
Three Months Ended June 30, 1998 and 1997
Total revenues for the three months ended June 30,
1998 of $6,324,000 increased 216% from $2,003,000 in
the same period of 1997. Product revenues for the
second quarter of 1998 of $4,388,000 reflect ongoing
sales of Mentax and Avita cream, which were launched in
1997, and Avita gel and Acticin, which were launched in
the first quarter of 1998. Revenues in the second
quarter also include royalties related to the Company's
tretinoin distribution relationship with an undisclosed
manufacturer. Licensing revenues were $700,000 in the
second quarter of 1998, compared to $360,000 in the
same quarter of the prior year, as a result of new
corporate partnering arrangements in the period.
The Company's cost of sales increased to
$1,147,000 in the three months ended June 30, 1998 from
$845,000 in the same period of 1997 primarily due to
the increase in product revenues; however gross margins
improved between the two periods due to a change in mix
toward higher margin products.
The Company's research and development expenses
decreased 10% to $1,134,000 in the three months ended
June 30, 1998 from $1,259,000 in the same period of
1997 due to completion of the 501 cream combination
product human clinical trials in the first quarter of
1998. Sales and marketing expenses increased 111% to
$3,736,000 in the three months ended June 30, 1998 from
$1,769,000 for the same period of 1997. The current
year period reflects the cost of the Company's direct
sales force which was established in the first quarter
of 1998 and increased expenses under its product co-
promotion agreements. In the prior year, the Company
utilized a contract sales force. General and
administrative expenses decreased modestly from the
prior year quarter.
<PAGE>
Part I Item 2. Management's Discussion and Analysis of
Financial Condition and Results of Operations
(continued)
The Company's expenses for the second quarter of 1998
include $900,000 of investment banking, legal and
accounting expenses related to its pending acquisition
by Mylan announced on June 24, 1998.
Net interest income was $27,000 in the three months
ended June 30, 1998 and $151,000 in the same period of
1997. Net interest income decreased primarily due to
lower amounts of cash and investments in the second
quarter of 1998 compared to the same period of the
prior year.
Six Months Ended June 30, 1998 and 1997
Total revenues for the six months ended June 30, 1998
of $10,325,000 increased 111% from $4,904,000 in the
same period of 1997. Product revenues for the second
quarter of 1998 of $7,118,000 reflect ongoing sales of
Mentax and Avita cream, which were launched in 1997,
and Avita gel and Acticin, which were launched in the
first quarter of 1998. Revenues in the six months
ended June 30, 1998 also include royalties related to
the Company's tretinoin distribution relationship with
an undisclosed manufacturer. Licensing revenues were
$1,971,000 in the first six months of 1998, compared to
$360,000 in the same period of the prior year, as a
result of new corporate partnering arrangements and
increased achievement of milestones in the 1998 period.
The Company's cost of sales increased to $1,873,000 in
the six months ended June 30, 1998 from $1,608,000 in
the same period of 1997 primarily due to the increase
in product revenues; however gross margins improved
between the two periods due to a change in mix toward
higher margin products.
<PAGE>
Part I Item 2. Management's Discussion and Analysis of
Financial Condition and Results of Operations
(continued)
The Company's research and development expenses
increased 19% to $2,963,000 in the six months ended
June 30, 1998 from $2,482,000 in the same period of
1997 due to the timing and size of human clinical
trials. The Company completed recording expenses
related to two pivotal phase III human clinical studies
(involving over 32 clinical sites and approximately
1,600 patients) of its 501 cream combination product in
the first quarter of 1998. Sales and marketing
expenses increased 56% to $6,128,000 in the six months
ended June 30, 1998 from $3,932,000 for the same period
of 1997. The current year period reflects the cost of
the Company's direct sales force which was established
in the first quarter of 1998 and increased expenses
under its product co-promotion agreements. In the
prior year, the Company utilized a contract sales
force. General and administrative expenses increased
18% to $1,102,000 in the six months ended June 30, 1998
from $931,000. General and administrative expenses in
the first six months of 1997 reflect the recovery of
legal fees related to prior patent litigation. There
was no such recovery in 1998.
Net interest income was $71,000 in the six months ended
June 30, 1998 and $210,000 in the same period of 1997.
Net interest income decreased primarily due to lower
amounts of cash and investments in the six months ended
June 30, 1998 compared to the same period of the prior
year.
The Company expects that annual revenues, and costs and
expenses will continue to increase in the future, due
principally to further commercialization of its
pharmaceutical products. Sales and marketing expenses
are expected to increase significantly from the prior
year reflecting the increased costs associated with its
sales force. The Company also expects some expansion
of research and development programs, increased patent
and regulatory costs, expansion of regulatory, clinical
and quality assurance capabilities, and increased
administrative support costs.
In addition, sales of a product upon initial market
introduction generally include a significant amount of
initial orders for inventory by wholesalers and
distributors and are not necessarily indicative of
actual demand for that product by patients and
physicians. There can be no assurance that
distributors and wholesalers will be able to forecast
demand for product accurately. Fluctuations in
operating results will occur to the extent that sell
through of products does not meet distributors' or
wholesalers' expectations. The Company also expects
that future operating results may be subject to
quarterly variations that may impact cash flow from
operations. Operating results for the six months ended
June 30, 1998 are not necessarily indicative of future
operating results.
<PAGE>
Part I Item 2. Management's Discussion and Analysis of
Financial Condition and Results of Operations
(continued)
Liquidity and Capital Resources
The Company's principal sources of capital to date
have been the proceeds from public and private
offerings of its equity securities. In January 1998,
the Company entered into an equity line of credit
agreement with an investment group which allows the
Company to access up to $10 million through sales of
its common stock over a period ending in April 2000, of
which $5 million remains available as of June 30, 1998.
The Company issued common stock in exchange for
$4,741,000, net of related financing costs, under the
equity line for the six month period ended June 30,
1998. At June 30, 1998, the Company had cash, cash
equivalents and investments totaling $2,732,000.
Cash expenditures related to operating activities, the
acquisition of fixed assets and repayment of long-term
obligations totaled $7,382,000 in the six months ended
June 30, 1998 and $5,580,000 for the same period in
1997. Operating activities were comprised of research
and development, clinical trials, product sales,
promotion and general administration activities. The
Company also made milestone payments of $400,000
related to the in-licensing of drug compounds in the
six months ended June 30, 1998. No similar milestone
payments were made in the first six months of 1997.
The Company expects that amounts expended historically
are not indicative of future expenditures by the
Company, which the Company believes will increase. The
Company expects to continue to incur substantial
expenditures related to the further research and
development of its technologies, development of its
products, acquisition of additional products and rights
to drug compounds and sales and marketing.
<PAGE>
Part I Item 2. Management's Discussion and Analysis of
Financial Condition and Results of Operations
(continued)
The Company believes that its capital resources,
including anticipated revenues (consisting of product
sales, license fees and royalties), proceeds from sales
of common stock under the equity line of credit, and
interest income earned on its invested cash balances,
will satisfy the Company's working capital and
identified capital expenditure requirements at least
through June 30, 1999. The Company's future capital
requirements will depend on many factors, including the
commercial success of the Company's products, progress
of the Company's collaborative and independent research
and development programs, payments received under
collaborative agreements with other companies, if any,
the results and costs of preclinical and clinical
testing for the Company's products, the costs
associated with and the timing of regulatory approvals,
technological advances, the status of competitive
products, and the commercial success of Penederm's
strategic relationships. There can be no assurance
that additional funds will be available to the Company
on favorable terms, if at all, to permit the Company to
continue with its current plan for operations.
Part II Item 2. Sales of Unregistered Securities
The Company issued an aggregate of 376,499 shares of
its Common Stock (the "Shares") for an aggregate
consideration of $4,011,500 in an unregistered
transaction in the fiscal quarter ended June 30, 1998.
The Shares were issued pursuant to the Common Stock
Investment Agreement dated as of January 21, 1998
between the Company and Promethean Investment Group,
L.L.C. (the "Investor"). Based on representations made
by the Investor in the Agreement, the Company issued
the Shares pursuant to the exemption provided by
Section 4(2) of the Securities Act of 1933, as amended.
<PAGE>
Part II Item 4. Submission of Matters to a Vote of Security
Holders
The Company held its annual meeting of stockholders on
June 24, 1998. At the meeting, the shareholders
considered the items described below:
Each of the nominees for director, David E. Collins,
Lloyd H. Malchow, Robert F. Allnutt, William I.
Bergman, Mark J. Gabrielson, Harvey S. Sadow, Ph.D.,
Joseph E. Smith and Gerald D. Weinstein, M.D., was
elected by the affirmative vote of at least 5,739,488
shares (out of 5,766,484 shares represented at the
meeting).
The stockholders voted to approve an amendment to the
Penederm Incorporated 1994 Nonemployee Director Stock
Option Plan to increase by 150,000 the number of shares
reserved for issuance under the plan. The amendment
was approved by a vote of 3,878,291 shares for,
1,875,146 shares against and 13,042 shares abstaining.
Part II Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits
10.8D Amendment No. 6 entered into April 30, 1998 to
Vintage Park Net Lease, between the Company and
Spieker Properties, L.P.
27 Financial Data Schedule
(b) Reports on Form 8-K
On June 30, 1998, the Company filed a Form 8-K
disclosing the Company's June 24, 1998 Agreement and
Plan of Merger with Mylan Laboratories Inc.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities and Exchange Act
of 1934, the registrant has duly caused this report to be signed
on its behalf by the undersigned, thereunto duly authorized.
PENEDERM INCORPORATED
July 31, 1998 /s/ Lloyd H. Malchow
------------- --------------------------------
Date Lloyd H. Malchow, President
and Chief Executive Officer
July 31, 1998 /s/ Michael A. Bates
------------- --------------------------------
Date Michael A. Bates, Vice President
Finance and Administration and
Chief Financial Officer
<PAGE>
INDEX TO EXHIBITS
Exhibit
No. Description
------- ------------------------------------------------
10.8D Amendment No. 6 entered into April 30, 1998 to
Vintage Park Net Lease, between the Company and
Spieker Properties, L.P.
27 Financial Data Schedule
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-START> JAN-01-1998
<PERIOD-END> JUN-30-1998
<CASH> 1,732
<SECURITIES> 1,000
<RECEIVABLES> 7,280
<ALLOWANCES> 0
<INVENTORY> 2,385
<CURRENT-ASSETS> 12,779
<PP&E> 1,688
<DEPRECIATION> 1,418
<TOTAL-ASSETS> 14,769
<CURRENT-LIABILITIES> 7,247
<BONDS> 0
0
0
<COMMON> 61,197
<OTHER-SE> (53,680)
<TOTAL-LIABILITY-AND-EQUITY> 14,769
<SALES> 7,118
<TOTAL-REVENUES> 10,325
<CGS> 1,873
<TOTAL-COSTS> 1,873
<OTHER-EXPENSES> 2,963
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 2
<INCOME-PRETAX> (2,570)
<INCOME-TAX> 0
<INCOME-CONTINUING> (2,570)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (2,570)
<EPS-PRIMARY> (0.31)
<EPS-DILUTED> (0.31)
</TABLE>
SIXTH AMENDMENT TO LEASE
THIS SIXTH AMENDMENT TO LEASE ("Amendment") is made and entered
into as of April 30, 1998, and amends that certain Vintage Park
Net Lease, dated December 14, 1988, and amended by Amendment No.
1, dated July 10, 1990, Amendment No. 2, dated January 23, 1991,
Amendment No. 3, dated February 17, 1994, Amendment No. 4, dated
September 30, 1994, and Amendment No. 5, dated April 15, 1996
(collectively the "Lease"), by and between SPIEKER PROPERTIES,
L.P., a California limited partnership, ("Landlord") as successor
in interest to WCB SEVENTEEN LIMITED PARTNERSHIP, a Delaware
limited partnership as successor in interest to Vintage Park
Associates, a partnership, and PENEDERM, INC., a California
Corporation ("Tenant"), for certain portions of those properties
known as 355 Lakeside Drive, Suite 210, approximately 4,353
rentable square feet in Foster City, California.
Landlord and Tenant, by executing this Lease Amendment as
provided do hereby amend the Original Lease referred to above as
follows:
1. EXTENSION OF TERM:
Four (4) months commencing May 1, 1998, terminating August 31, 1998.
2. MONTHLY NNN RENTAL RATE (05/01/98 - 08/31/98):
Base Rent $7,182.45
Monthly Est. Op. Ex. `98 $100.00
TOTAL ESTIMATED RENT $7,282.45
Except as amended herein, all of the terms, covenants,
provisions, and agreements of the original Lease, and its First,
Second, Third, Fourth, and Fifth Amendments, shall remain in full
force and effect. In the event of any conflict between the
original Lease and its Amendments, herein above mentioned, and
this Sixth Amendment, this Sixth Amendment shall prevail.
In witness hereof, the parties hereto have signed and sealed this
extension agreement this 30th day of April, 1998.
LANDLORD: TENANT:
SPIEKER PROPERTIES, L.P. PENEDERM, INC.
a California limited a California Corporation
partnership
By: Spieker Properties, Inc.
a Maryland corporation
By: /s/ Peter H. Schnugg By: /s/ Terry Gutshall
-------------------- -------------------
Peter H. Schnugg Terry Gutshall
Its: Regional Vice President Its: Vice President, Operations
Date: 5/7/98 Date: 5/6/98
<PAGE>
BASIC LEASE INFORMATION
INDUSTRIAL NET
LEASE DATE: December 22, 1997
TENANT: Penederm, Inc., a Delaware
Corporation
TENANT'S NOTICE ADDRESS: 320 Lakeside Drive, Suite A,
Foster City, California 94404
TENANT'S BILLING ADDRESS: 320 Lakeside Drive, Suite A,
Foster City, California 94404
TENANT CONTACT: Terry Gutshall PHONE NUMBER: (650) 358-0100
LANDLORD: Spieker Properties, L.P., a
California limited partnership
LANDLORD'S NOTICE ADDRESS: 393 Vintage Park Drive, Suite
220, Foster City, CA 94404
LANDLORD'S REMITTANCE ADDRESS: P. O. Box 46687, Dept. 12091,
San Francisco, CA 94145-0587
Project Description: 19 R&D buildings and 3 office
buildings located on 60 acres
Building Description: One story, R & D, concrete tilt
up building
Premises: Approximately 11,740 rentable
square feet located at
373 Vintage Park Drive, Suite D,
Foster City, CA 94404
Permitted Use: General Office
Parking Density: 3/1,000
Scheduled Term Commencement September 1, 1998
Date:
Length of Term: Five Years
Rent:
Base Rent: $26,415 per month
(subject to adjustment as
provided in Paragraph 38.A.
hereof)
Estimated First Year $5,564.76 per month
Operating Expenses:
Security Deposit: $26,415
Tenant's Proportionate Share:
of Building: 47.3% based on 24,814
of Project: 2.26% based on 519,507
The forgoing Basic Lease Information is incorporated into and
made a part of this Lease. Each reference in this Lease to any
of the Basic Lease Information shall mean the respective
information above and shall be construed to incorporate all of
the terms provided under the particular Lease paragraph
pertaining to such information. In the event of any conflict
between the Basic Lease Information and the Lease, the latter
shall control.
<PAGE>
BASIC LEASE INFORMATION
INDUSTRIAL NET
LEASE DATE: December 22, 1997
TENANT: Penederm, Inc., a Delaware
Corporation
TENANT'S NOTICE ADDRESS: 320 Lakeside Drive, Suite A,
Foster City, California 94404
TENANT'S BILLING ADDRESS: 320 Lakeside Drive, Suite A,
Foster City, California 94404
TENANT CONTACT: Terry Gutshall PHONE NUMBER: (650) 358-0100
LANDLORD: Spieker Properties, L.P., a
California limited partnership
LANDLORD'S NOTICE ADDRESS: 393 Vintage Park Drive, Suite
220, Foster City, CA 94404
LANDLORD'S REMITTANCE ADDRESS: P. O. Box 46687, Dept. 12091,
San Francisco, CA 94145-0587
Project Description: 19 R&D buildings and 3 office
buildings located on 60 acres
Building Description: One story, R & D, concrete tilt
up building
Premises: Approximately 11,740 rentable
square feet located at
373 Vintage Park Drive, Suite D,
Foster City, CA 94404
Permitted Use: General Office
Parking Density: 3/1,000
Scheduled Term Commencement 8/1/98
Date:
Length of Term: Five Years
Rent:
Base Rent: $26,415 per month
(subject to adjustment as
provided in Paragraph 38.A
hereof.)
Estimated First Year $5,564.76 per month
Operating Expenses:
Security Deposit: $26,415
Tenant's Proportionate Share:
of Building: 47.3% based on 24,814
of Project: 2.26% based on 519,507
The forgoing Basic Lease Information is incorporated into and
made a part of this Lease. Each reference in this Lease to any
of the Basic Lease Information shall mean the respective
information above and shall be construed to incorporate all of
the terms provided under the particular Lease paragraph
pertaining to such information. In the event of any conflict
between the Basic Lease Information and the Lease, the latter
shall control.
<PAGE>
LEASE
THIS LEASE is made as of the 20th day of February, 1998, by and
between Spieker Properties, L.P., a California limited
partnership (hereinafter called "Landlord"), and Penederm, Inc.
(hereinafter called "Tenant"), a Delaware corporation.
1. PREMISES
Landlord leases to Tenant and Tenant leases from Landlord.
upon the terms and conditions hereinafter set forth, those
Premises (the "Premises") outlined in red on Exhibit A and
described in the Basic Lease Information. The Premises shall be
all or part of a building (the "Building") and of a project (the
"Project") which may consist of more than one building, as
described in the Basic Lease Information. The Building and
Project are outlined in blue and green respectively on Exhibit A
and Exhibit B. Additionally, the number of buildings which
constitute the Project may change from time to time. Tenant
accepts the area of the Premises as specified in this Lease as
the approximate area of the Premises, and acknowledges and agrees
that Tenant shall in no event be entitled to a recalculation of
the square footage of the Premises and that no such recalculation
shall reduce Tenant's obligations under this Lease in any manner,
including without limitation the amount of Base Rent payable by
Tenant or Tenant's Proportionate Share of the Building and of the
Project.
2. POSSESSION AND LEASE COMMENCEMENT
A. Existing Improvements. In the event that this Lease
pertains to a Premises in which the interior improvements have
already been constructed ("Existing Improvements"), the
provisions of this Paragraph 2.A. shall apply and the term
Commencement date ("Term Commencement Date") shall be the earlier
of the date on which: (1) Tenant takes possession of some or all
of the Premises; or (2) Landlord notifies Tenant that Tenant may
occupy the Premises. If for any reason Landlord cannot deliver
possession of the Premises to Tenant on the scheduled Term
Commencement Date, Landlord shall not be subject to any liability
therefor, nor shall Landlord be in default hereunder nor shall
such failure affect the validity of this Lease, and Tenant agrees
to accept possession of the Premises at such time as Landlord is
able to deliver the same, which date shall then be deemed the
Term Commencement Date. Tenant shall not be liable for any Rent
(defined below) for any period prior to the Term Commencement
Date. Tenant acknowledges that Tenant has inspected and accepts
the Premises in their present condition, broom clean, "as is,"
and as suitable for the purpose for which the Premises are leased
and for Tenant's intended use of the Premises. Tenant agrees
that the Premises and other improvements are in good and
satisfactory condition as of when possession was taken. Tenant
further acknowledges that no representations as to the condition
or repair of the Premises nor promises to alter, remodel or
improve the Premises have been made by Landlord or any agents of
Landlord unless such are expressly set forth in this Lease. Upon
Landlord's request, Tenant shall execute and return to Landlord a
"Start-Up Letter" in which Tenant shall agree, among other
things, to acceptance of the Premises and to the determination of
the Term Commencement Date, in accordance with the terms of this
Lease.
B. Construction of Improvements. In the event that this Lease
pertains to a Building to be constructed or improvements to be
constructed within a Building, the provisions of this Paragraph
2.B. shall apply in lieu of the provisions of Paragraph 2.A.
above and the term commencement date ("Term Commencement Date")
shall be the earlier of the date on which: (1) Tenant takes
possession of some or all of the Premises.
3. TERM
The term of this Lease (the "Term") shall commence on the
Term Commencement Date and continue in full force and effect for
the number of months specified as the Length of Term in the Basic
Lease Information or until this Lease is terminated as otherwise
provided herein. If the Term Commencement Date is a date other
than the first day of the calendar month, the Term shall be the
number of months of the Length of Term in addition to the
remainder of the calendar month following the Term Commencement
Date.
4. USE
A. General. Tenant shall use the Premises for the permitted
use specified in the Basic Lease Information ("Permitted Use")
and for no other use or purpose. Tenant shall control Tenant's
employees, agents, customers, visitors, invitees, licensees,
contractors, assignees and subtenants (collectively, "Tenant's
Parties") in such a manner that Tenant and Tenant's Parties
cumulatively do not exceed the parking density specified in the
Basic Lease Information (the "Parking Density") at any time.
Tenant and Tenant's Parties shall have the nonexclusive right to
use, in common with other parties occupying the Building or
Project, the parking areas, driveways and other common areas of
the Building and Project, subject to such rules and regulations
as Landlord may from time to time prescribe.
B. Limitations. Tenant shall not permit any odors, smoke,
dust, gas, substances, noise or vibrations to emanate from the
Premises or from any portion of the common areas as a result of
Tenant's or any Tenant's Party's use thereof, nor take any action
which would constitute a nuisance or would disturb, obstruct or
endanger any other tenants or occupants of the Building or
Project or interfere with their use of their respective premises
or common areas. Storage outside the Premises of materials,
vehicles or any other items is prohibited. Tenant shall not use
or allow the Premises to be used for any immoral, improper or
unlawful purpose, nor shall Tenant cause or maintain or permit
any nuisance in, on or about the Premises. Tenant shall not
commit or suffer the commission of any waste in, on or about the
Premises. Tenant shall not allow any sale by auction upon the
Premises, or place any loads upon the floors, walls or ceilings
which endanger the structure, or place any harmful substances in
the drainage system of the Building or Project. No waste,
materials or refuse shall be dumped upon or permitted to remain
outside the Premises except in trash containers placed inside
exterior enclosures designated for that purpose by Landlord.
Landlord shall not be responsible to Tenant for the non-
compliance by any other tenant or occupant of the Building or
Project with any of the above-referenced rules or any other terms
or provisions of such tenant's or occupant's lease or other
contract.
C. Compliance with Regulations. By entering the Premises,
Tenant accepts the Premises in the condition existing as of the
date of such entry. Tenant shall at its sole cost and expense
strictly comply with all existing or future applicable municipal,
state and federal and other governmental statutes, rules,
requirements, regulations, laws and ordinances, including zoning
ordinances and regulations, and covenants, easements and
restrictions of record governing and relating to the use,
occupancy or possession of the Premises, to Tenant's use of the
common areas, or to the use, storage, generation or disposal of
Hazardous Materials (hereinafter defined) (collectively
"Regulations"). Tenant shall at its sole cost and expense obtain
any and all licenses or permits necessary for Tenant's use of the
Premises. Tenant shall at its sole cost and expense promptly
comply with the requirements of any board of fire underwriters or
other similar body now or hereafter constituted. Tenant shall
not do or permit anything to be done in, on, under or about the
Project or bring or keep anything which will in any way increase
the rate of any insurance upon the Premises, Building or Project
or upon any contents therein or cause a cancellation of said
insurance or otherwise affect said insurance in any manner.
Tenant shall indemnify, defend, protect and hold Landlord
harmless from and against any loss, cost,
<PAGE>
expense, damage, attorneys' fees or liability arising out of the failure of
Tenant to comply with any Regulation. Tenant's obligations pursuant to
the foregoing indemnity shall survive the expiration or earlier
termination of this Lease.
D. Hazardous Materials. As used in this Lease, "Hazardous
Materials" shall include, but not be limited to, hazardous, toxic
and radioactive materials and those substances defined as
"hazardous substances," "hazardous materials," "hazardous
wastes," "toxic substances," or other similar designations in any
Regulation. Tenant shall not cause, or allow any of Tenant's
Parties to cause, any Hazardous Materials to be used, generated,
stored or disposed of on or about the Premises, the Building or
the Project or surrounding land or environment in violation of
any Regulations. Tenant must obtain Landlord's written consent
prior to the introduction of any Hazardous Materials onto the
Project. Notwithstanding the foregoing, Tenant may handle,
store, use and dispose of products containing small quantities of
Hazardous Materials for "general office purposes" (such as toner
for copiers) to the extent customary and necessary for the
Permitted Use of the Premises; provided that Tenant shall always
handle, store, use, and dispose of any such Hazardous Materials
in a safe and lawful manner and never allow such Hazardous
Materials to contaminate the Premises, Building, or Project or
surrounding land or environment. Tenant shall immediately notify
Landlord of any Hazardous Materials' contamination of any portion
of the Project of which Tenant becomes aware, whether or not
caused by Tenant. Landlord shall have the right at all
reasonable times to inspect the Premises and to conduct tests and
investigations to determine whether Tenant is in compliance with
the foregoing provisions, the costs of all such inspections,
tests and investigations to be borne by Tenant. Tenant shall
indemnify, defend, protect and hold Landlord harmless from and
against all liabilities, losses, costs and expenses (including
attorneys' and consultants' fees), demands, causes of action,
claims or judgments directly or indirectly arising out of the
use, generation, storage, release, or disposal of Hazardous
Materials by Tenant or any of Tenant's Parties in, on or about
the Premises, the Building or the Project or surrounding land or
environment, excluding, however, any Hazardous Materials whose
presence was caused by a prior tenant. The foregoing indemnity
shall include, without limitation, damages for personal or bodily
injury, property damage, damage to the environment or natural
resources occurring on or off the Premises. losses attributable
to diminution in value or adverse effects on marketability, the
cost of any investigation, monitoring, government oversight,
repair, removal, remediation, restoration, abatement, and
disposal, and the preparation of any closure or other required
plans, whether such action is required or necessary prior to or
following the expiration or earlier termination of this Lease.
Neither the consent by Landlord to the use, generation, storage,
release or disposal of Hazardous Materials nor the strict
compliance by Tenant with all laws pertaining to Hazardous
Materials shall excuse Tenant from Tenant's obligation of
indemnification pursuant to this Paragraph 4.D. Tenant's
obligations pursuant to the foregoing indemnity shall survive the
expiration or earlier termination of this Lease.
5. RULES AND REGULATIONS
Tenant shall faithfully observe and comply with any rules
and regulations and any modifications or additions thereto which
Landlord may from time to time prescribe in writing for the
purpose of maintaining the proper care, cleanliness, safety,
traffic flow and general order of the Premises or the Building or
Project. Tenant shall cause Tenant's Parties to comply with such
rules and regulations. Landlord shall not be responsible to
Tenant for the non-compliance by any other tenant or occupant of
the Building or Project with any of such rules and regulations,
any other tenant's or occupant's lease or any Regulations.
<PAGE>
6. RENT
A. Base Rent. Tenant shall pay to Landlord and Landlord shall
receive, without notice or demand throughout the Term, Base Rent
as specified in the Basic Lease Information, payable in monthly
installments in advance on or before the first day of each
calendar month, in lawful money of the United States, without
deduction or offset whatsoever, at the Remittance Address
specified in the Basic Lease Information or to such other place
as Landlord may from time to time designate in writing. Base
Rent for the first full month of the Term shall be paid by Tenant
upon Tenant's execution of this Lease. If the obligation for
payment of Base Rent commences on other than the first day of a
month, then Base Rent shall be prorated and the prorated
installment shall be paid on the first day of the calendar month
next succeeding the Term Commencement Date. The Base Rent
payable by Tenant hereunder is subject to adjustment as provided
in addenda appended to this Lease (if referred to in Paragraph
38.A.). As used herein, the term "Base Rent" shall mean the Base
Rent specified in the Basic Lease Information as it may be so
adjusted from time to time.
B. Additional Rent. All monies other than Base Rent required
to be paid by Tenant hereunder, including, but not limited to,
Tenant's Proportionate Share of Operating Expenses, as specified
in Paragraph 7 of this Lease, the interest and late charge
described in Paragraphs 26.C. and D., and any monies spent by
Landlord pursuant to Paragraph 30, shall be considered additional
rent ("Additional Rent"). "Rent" shall mean Base Rent and
Additional Rent.
7. OPERATING EXPENSES
A. Operating Expenses. In addition to the Base Rent required
to be paid hereunder, Tenant shall pay as Additional Rent,
Tenant's Proportionate Share, as defined in the Basic Lease
Information, of Operating Expenses (defined below) in the manner
set forth below. Tenant shall pay the applicable Tenant's
Proportionate Share of each such Operating Expenses. Landlord
and Tenant acknowledge that if the number of buildings which
constitute the Project increases or decreases, Landlord shall
reasonably adjust Tenant's Proportionate Share of the Project to
reflect the change. Landlord's determination of Tenant's
Proportionate Share of the Building and of the Project shall be
conclusive so long as it is reasonably and consistently applied.
"Operating Expenses" shall mean all expenses and costs of every
kind and nature which Landlord shall pay or become obligated to
pay, because of or in connection with the ownership, management,
maintenance, repair, preservation, replacement and operation of
the Building or Project and its supporting facilities (as
determined in a reasonable manner) other than those expenses and
costs which are specifically attributable to Tenant or which are
expressly made the financial responsibility of Landlord pursuant
to this Lease. Operating Expenses shall include, but are not
limited to, the following:
(1) Taxes. All real property taxes and assessments, possessory
interest taxes, sales taxes, personal property taxes, business or
license taxes or fees, gross receipts taxes, service payments in
lieu of such taxes or fees, annual or periodic license or use
fees, excises, transit charges, and other impositions, general
and special, ordinary and extraordinary, unforeseen as well as
foreseen of any kind (including fees "in-lieu" of any such tax or
assessment) which are now or hereafter assessed, levied, charged,
confirmed, or imposed by any public authority upon the Building
or Project, its operations or the Rent (or any portion or
component thereof), or any tax, assessment or fee imposed in
substitutions, partially or totally, of any of the above.
Operating Expenses shall also include any taxes, assessments, or
other fees or impositions with respect to the development,
leasing, management, maintenance, alteration, repair, use or
occupancy by Tenant of the Premises or any portion thereof, or
upon this transaction or any document creating or transferring an
interest in the Premises. In the event that it shall not be
lawful for Tenant to reimburse Landlord for all or any part of
such taxes, the monthly rental payable to Landlord
<PAGE>
under this Lease shall be revised to net Landlord the same net rental
after imposition of any such taxes by Landlord as would have been
payable to Landlord prior to the payment of any such taxes.
(2) Insurance. All insurance premiums and costs, including, but
not limited to, any deductible amounts, premiums and other costs
of insurance incurred by Landlord, including for the insurance
coverage set forth in Paragraph 8.A. herein.
(3) Common Area Maintenance
(a) Repairs, replacements, and general maintenance of and for
the Building and Project and public and common areas of the
Building and Project, including, but not limited to, the roof,
pest extermination, landscaped areas, parking and service areas,
driveways, truck staging areas, rail spur areas, fire sprinkler
systems, sanitary and storm sewer lines, utility services,
electric and telephone equipment and wiring servicing, exterior
lighting, and any other items or areas which affect the operation
or exterior appearance of the Building or Project, which
determination shall be at Landlord's discretion, except for:
those items expressly made the financial responsibility of
Landlord pursuant to Paragraph 10 hereof, those items to the
extent paid for by the proceeds of insurance; and those items
attributable solely or jointly to specific tenants of the
Building or Project.
(b) Repairs, replacements, and general maintenance shall include
the cost of any capital improvements made to or capital assets
acquired for the Project or Building that in Landlord's
discretion may reduce any other Operating Expenses, including
present or future repair work, are reasonably necessary for the
health and safety of the occupants of the Building or Project, or
are required under any governmental law or regulation, such costs
or allocable portions thereof to be amortized over such
reasonable period as Landlord shall determine, together with
interest on the unamortized balance at the "prime rate" charged
by Wells Fargo Bank, N.A. (San Francisco) or its successor at the
time such improvements or capital assets are constructed or
acquired, plus two (2) percentage points, but in no event more
than the maximum rate permitted by law.
(c) Payment under or for any easement, license, permit,
operating agreement, declaration, restrictive covenant or
instrument relating to the Building or Project.
(d) All expenses related to services and costs of supplies and
equipment used in maintaining the Premises, Building and Project
the equipment therein and the adjacent sidewalks, driveways,
parking and service areas, including, without limitation,
expenses related to service agreements regarding security and
fire and other alarm systems, janitorial services to the extent
not addressed in Paragraph 11 hereof, window cleaning, elevator
maintenance, Building exterior maintenance, landscaping and
expenses related to the administration, management and operation
of the Project, including without limitation salaries, wages and
benefits.
(4) Utilities. The cost of supplying any utilities which
benefit all or a portion of the Premises, Building or Project to
the extent not addressed in Paragraph 15 hereof.
(5) Management Fee. A management and accounting cost recovery
fee equal to three percent (3%) of the sum of Base Rent and
Tenant's Proportionate Share of Operating Expenses.
In the event that the Building and/or Project is not fully
occupied during any fiscal year of the Term as determined by
Landlord, an adjustment shall be made in computing the Operating
Expenses for such year so that Tenant pays an equitable portion
of all variable items (i.e. component expenses that are affected
by variations in occupancy levels) of Operating Expenses, as
reasonably determined by
<PAGE>
Landlord; provided, however, that in no
event shall Landlord be entitled to collect in excess of one
hundred percent (100%) of the total Operating Expenses from all
of the tenants in the Building or Project as the case may be.
Operating Expenses shall not include specific costs incurred
for the account of, separately billed to and paid by specific
tenants. Notwithstanding anything herein to the contrary, in any
instance wherein Landlord, in Landlord's sole discretion, deems
Tenant to be responsible for any amounts greater than Tenant's
Proportionate Share, Landlord shall have the right to allocate
costs in any manner Landlord deems appropriate.
The above enumeration of services and facilities shall not
be deemed to impose an obligation on Landlord to make available
or provide such services or facilities except to the extent
Landlord has specifically agreed elsewhere in this Lease to make
the same available or provide the same. Without limiting the
generality of the foregoing, Tenant acknowledges and agrees that
it shall be responsible for providing adequate security for its
use of the Premises and Project and that Landlord shall have no
obligation or liability with respect thereto, except to the
extent Landlord has specifically agreed elsewhere in this Lease
to provide the same.
B. Payment of Estimated Operating Expenses. "Estimated
Operating Expenses" for any particular year shall mean Landlord's
estimate of the Operating Expenses for such fiscal year made with
respect to such fiscal year as hereinafter provided. Landlord
shall have the right from time to time to revise its fiscal year
and interim accounting periods so long as the periods as so
revised are reconciled with prior periods in a reasonable manner.
During the last month of each fiscal year during the Term, or as
soon thereafter as practicable. Landlord shall give Tenant
written notice of the Estimated Operating Expenses for the
ensuing fiscal year. Tenant shall pay Tenant's Proportionate
Share of the Estimated Operating Expenses with installments of
Base Rent for the fiscal year to which the Estimated Operating
Expenses applies in monthly installments on the first day of each
calendar month during such year, in advance. If at any time
during the course of the fiscal year, Landlord determines that
Operating Expenses are projected to vary from the then Estimated
Operating Expenses by more than ten percent (10%), Landlord may,
by written notice to Tenant, revise the Estimated Operating
Expenses for the balance of such fiscal year, and Tenant's
monthly installments for the remainder of such year shall be
adjusted so that by the end of such fiscal year Tenant has paid
to Landlord Tenant's Proportionate Share of the revised Estimated
Operating Expenses for such year.
C. Computation of Operating Expense Adjustment. "Operating
Expense Adjustment" shall mean the difference between Estimated
Operating Expenses and actual Operating Expenses for any fiscal
year determined as hereinafter provided. Within one hundred
twenty (120) days after the end of each fiscal year, as
determined by Landlord, or as soon thereafter as practicable,
Landlord shall deliver to Tenant a statement of actual Operating
Expenses for the fiscal year just ended, accompanied by a
computation of Operating Expenses Adjustment. If such statement
shows that Tenant's payment based upon Estimated Operating
Expenses is less than Tenant's Proportionate Share of Operating
Expenses, then Tenant shall pay to Landlord the difference within
twenty (20) days after receipt of such statement. If such
statement shows that Tenant's payments of Estimated Operating
Expenses exceed Tenant's Proportionate Share of Operating
Expenses, then (provided that Tenant is not in default under this
Lease) Landlord shall pay to Tenant the difference within twenty
(20) days after delivery of such statement to Tenant. If this
Lease has been terminated or the Term hereof has expired prior to
the date of such statement, then the Operating Expense Adjustment
shall be paid by the appropriate party within twenty (20) days
after the date of delivery of the statement. Should this Lease
commence or terminate at any time other than the first day of the
fiscal year, Tenant's Proportionate
<PAGE>
Share of the Operating Expense Adjustment shall be prorated by reference
to the exact number of calendar days during such fiscal year that this
Lease is in effect.
D. Net Lease. This shall be a triple net Lease and Base Rent
shall be paid to Landlord absolutely net of all costs and
expenses, except as specifically provided to the contrary in this
Lease. The provisions for payment of Operating Expenses and the
Operating Expense Adjustment are intended to pass on to Tenant
and reimburse Landlord for all costs and expenses of the nature
described in Paragraph 7.A. incurred in connection with the
ownership, management, maintenance, repair, preservation,
replacement and operation of the Building and/or Project and such
additional facilities now and in subsequent years as may be
determined by Landlord to be necessary to the Building and/or
Project.
E. Tenant Audit. In the event that Tenant shall dispute the
amount set forth in any statement provided by Landlord under
Paragraph 7.B. or 7.C. above, Tenant shall have the right, not
later than twenty (20) days following receipt of such statement
and upon the condition that Tenant shall first deposit with
Landlord the full amount in dispute, to cause Landlord's books
and records with respect to Operating Expenses for such fiscal
year to be audited by certified public accountants selected by
Tenant and subject to Landlord's reasonable right of approval.
The Operating Expense Adjustment shall be appropriately adjusted
on the basis of such audit. If such audit discloses a liability
for a refund in excess of ten percent (10%) of Tenant's
Proportionate Share of the Operating Expense Adjustment
previously reported, the cost of such audit shall be borne by
Landlord; otherwise the cost of such audit shall be paid by
Tenant. If Tenant shall not request an audit in accordance with
the provisions of this Paragraph 7.E. within twenty (20) days
after receipt of Landlord's statement provided pursuant to
Paragraph 7.B. or 7.C., such statement shall be final and binding
for all purposes hereof
8. INSURANCE AND INDEMNIFICATION
A. Landlord's Insurance. All insurance maintained by Landlord
shall be for the sole benefit of Landlord and under Landlord's
sole control.
(1) Property Insurance. Landlord agrees to maintain property
insurance insuring the Building against damage or destruction due
to risks including fire, vandalism, and malicious mischief in an
amount not less than the replacement cost thereof, in the form
and with deductibles and endorsements as selected by Landlord.
At its election, Landlord may instead obtain "All Risk" coverage,
and may also obtain earthquake, pollution, and/or flood insurance
in amounts selected by Landlord.
(2) Optional Insurance. Landlord, at Landlord's option, may
also carry insurance against loss of rent, in an amount equal to
the amount of Base Rent and Additional Rent that Landlord could
be required to abate to all Building tenants in the event of
condemnation or casualty damage for a period of twelve (12)
months. Landlord may also carry such other insurance as Landlord
may deem prudent or advisable, including, without limitation,
liability insurance in such amounts and on such terms as Landlord
shall determine. Landlord shall not be obligated to insure any
furniture, machinery, goods, inventory or supplies, or other
personal property or fixtures which Tenant may keep or maintain
in the Premises, or any leasehold improvements, additions or
alterations within the Premises.
B. Tenant's Insurance.
(1) Property Insurance. Tenant shall procure at Tenant's sole
cost and expense and keep in effect from the date of this Lease
and at all times until the end of the Term, insurance on all
personal property and fixtures of Tenant and all improvements,
additions or alterations
<PAGE>
made by or for Tenant to the Premises on
an "All Risk" basis, insuring such property for the full
replacement value of such property.
(2) Liability Insurance. Tenant shall procure at Tenant's sole
cost and expense and keep in effect from the date of this Lease
and at all times until the end of the Term Commercial General
Liability insurance applying to the use and occupancy of the
Premises and the Project, and any part of either, and any areas
adjacent thereto, and the business operated by Tenant or by any
other occupant of the Premises. Such insurance shall include
Broad Form Contractual Liability insurance coverage insuring all
of Tenant's indemnity obligations under this Lease. Such
coverage shall have a minimum combined single limit of liability
of at least Two Million Dollars ($2,000,000.00), and a minimum
general aggregate limit of Three Million Dollars ($3,000,000.00),
with an "Additional Insured - Managers or Lessors of Premises
Endorsement" and the "Amendment of the Pollution Exclusion
Endorsement." All such policies shall be written to apply to all
bodily injury, property damage or loss, personal injury and other
covered loss, however occasioned, occurring during the policy
term, shall be endorsed to add Landlord and any party holding an
interest to which this Lease may be subordinated as an additional
insured, and shall provide that such coverage shall be "primary"
and non-contributing with any insurance maintained by Landlord,
which shall be excess insurance only. Such coverage shall also
contain endorsements: (i) deleting any employee exclusion on
personal injury coverage; (ii) including employees as additional
insureds; and (iii) providing for coverage of employer's
automobile non-ownership liability. All such insurance shall
provide for the severability of interests of insureds; and shall
be written on an "occurrence" basis, which shall afford coverage
for all claims based on acts, omissions, injury and damage, which
occurred or arose (or the onset of which occurred or arose) in
whole or in part during the policy period. Tenant shall also
procure at Tenant's sole cost and expense and keep in effect
during the Term of this Lease, Legal Liability Insurance covering
direct physical damage and loss of use of the Building for which
Tenant is legally obligated in an amount of the full replacement
value of the Building.
(3) Workers' Compensation and Employers' Liability Insurance.
Tenant shall carry Workers' Compensation Insurance as required by
any Regulation, throughout the Term at Tenant's sole cost and
expense. Tenant shall also carry Employers' Liability Insurance
in amounts not less than One Million Dollars ($1,000,000) each
accident for bodily injury by accident; One Million Dollars
($1,000,000) policy limit for bodily injury by disease; and One
Million Dollars ($1,000,000) each employee for bodily injury by
disease, throughout the Term at Tenant's sole cost and expense.
(4) Commercial Auto Liability Insurance. Tenant shall procure
at Tenant's sole cost and expense and keep in effect from the
date of this Lease and at all times until the end of the Term
commercial auto liability insurance with a combined limit of not
less than One Million Dollars ($1,000,000) for bodily injury and
property damage for each accident. Such insurance shall cover
liability relating to any auto (including owned, hired and non-
owned autos).
(5) General Insurance Requirements. All coverages described in
this Paragraph 8.B. shall be endorsed to (i) provide Landlord
with thirty (30) days' notice of cancellation or change in terms;
and (ii) waive all rights of subrogation by the insurance carrier
against Landlord. If at any time during the Term the amount or
coverage of insurance which Tenant is required to carry under
this Paragraph 8.B. is, in Landlord's reasonable judgment,
materially less than the amount or type of insurance coverage
typically carried by owners or tenants of properties located in
the general area in which the Premises are located which are
similar to and operated for similar purposes as the Premises or
if Tenant's use of the Premises should change with or without
Landlord's consent, Landlord shall have the right to require
Tenant to increase the amount or change the types of insurance
coverage required under this Paragraph 8.B. All insurance
policies required to be carried under this Lease shall be written
<PAGE>
by companies rated A VIII or better in "Best's Insurance Guide"
and authorized to do business in the State of California. In any
event deductible amounts shall not exceed Five Thousand Dollars
($5,000.00). Tenant shall deliver to Landlord on or before the
Term Commencement Date, and thereafter at least thirty (30) days
before the expiration dates of the expired Policies, certified
copies of Tenant's insurance policies, or a certificate
evidencing the same issued by the insurer thereunder; and, in the
event Tenant shall fail to procure such insurance, or to deliver
such policies or certificates, Landlord may, at Landlord's option
and in addition to Landlord's other remedies in the event of a
default by Tenant hereunder, procure the same for the account of
Tenant, and the cost thereof shall be paid to Landlord as
Additional Rent.
(6) Indemnification. Landlord shall indemnify, defend by
counsel reasonably acceptable to Tenant, protect and hold Tenant
harmless from and against any and all claims, liabilities,
losses, costs, damages, injuries or expenses, including
reasonable attorneys' fees and court costs, arising out of or
related to the sole negligence or willful misconduct of Landlord.
Notwithstanding the foregoing or anything to the contrary
contained in this Lease, Landlord shall in no event be liable and
Tenant hereby waives all claims against Landlord for any loss,
damage, injury or death to or of any person or property
(including without limitation personal property) caused by theft,
fire, rain or water leakage, or from the breakage, leakage,
obstruction or other defects of pipes, fire sprinklers, wires,
appliances, plumbing, HVAC or lighting fixtures, electrical or
other systems, or by acts of God (including without limitation
flood or earthquake), acts of a public enemy, riot, strike,
insurrection, war, court order. requisition or order of
governmental body or authority or for any damage or inconvenience
which may arise through repair, except as expressly otherwise
provided in Paragraph 10, regardless of Landlord's negligence or
misconduct. In addition, Landlord shall in no event be liable
for injury to Tenant's business or any loss of income or profit
therefrom or for consequential damages, regardless of Landlord's
negligence or misconduct. Tenant shall indemnify, defend by
counsel reasonably acceptable to Landlord, protect and hold
Landlord harmless from and against any and all claims,
liabilities, losses, costs, loss of rents, liens, damages,
injuries or expenses, including reasonable attorneys' fees and
court costs, arising out of or related to: (1) claims of injury
to or death of persons or damage to property occurring or
resulting directly or indirectly from the use or occupancy of the
premises by Tenant or Tenant's Parties, or from activities of
Tenant or Tenant's Parties; (2) claims arising from work or labor
performed, or for materials or supplies furnished to or at the
request of Tenant in connection with performance of any work done
for the account of Tenant within the Premises or Project; (3)
claims arising from any breach or default on the part of Tenant
in the performance of any covenant contained in this Lease; and
(4) claims arising from the negligence or intentional acts or
omissions of Tenant or Tenant's Parties. The foregoing indemnity
by Tenant shall not be applicable to claims to the extent arising
from the sole negligence or willful misconduct of Landlord. The
provisions of this Paragraph shall survive the expiration or
earlier termination of this Lease.
9. WAIVER OF SUBROGATION
To the extent permitted by law and without affecting the
coverage provided by insurance to be maintained hereunder or any
other rights or remedies, Landlord and Tenant each waive any
right to recover against the other for: (a) damages for injury to
or death of persons; (b) damages to property, including personal
property; (c) damages to the Premises or any part thereof; and
(d) claims arising by reason of the foregoing due to hazards
covered by insurance to the extent of proceeds recovered
therefrom. This provision is intended to waive fully, any rights
and/or claims arising by reason of the foregoing, but only to the
extent that any of the foregoing damages and/or claims referred
to above are covered, and only to the extent of such coverage, by
insurance actually carried by either Landlord or Tenant. This
provision is also intended to waive fully, and for the benefit of
each party, any rights and/or claims which might give rise to a
right of subrogation on any insurance carrier. Subject to all
<PAGE>
qualifications of this Paragraph 9, Landlord waives its rights as
specified in this Paragraph 9 with respect to any subtenant that
it has approved pursuant to Paragraph 21 but only in exchange for
the written waiver of such rights to be given by such subtenant
to Landlord. Each party shall cause each insurance policy
obtained by it to provide that the insurance company waives all
right of recovery by way of subrogation against either party in
connection with any damage covered by any policy.
10. LANDLORD'S REPAIRS AND MAINTENANCE
Landlord shall at Landlord's expense maintain in good
repair, reasonable wear and tear excepted, the structural
soundness of the roof, foundations, and exterior walls of the
Building. The term "exterior walls" as used herein shall not
include windows, glass or plate glass, doors, dock bumpers or
dock plates, special store fronts or office entries. Any damage
caused by or repairs necessitated by any act of Tenant or
Tenant's Parties may be repaired by Landlord at Landlord's option
and Tenant's expense. Tenant shall immediately give Landlord
written notice of any defect or need of repairs in such
components of the Building after which Landlord shall have a
reasonable opportunity and the right to enter the Premises at all
reasonable times to repair same. Landlord's liability with
respect to any defects, repairs, or maintenance for which
Landlord is responsible under any of the provisions of this Lease
shall be limited to the cost of such repairs or maintenance, and
there shall be no abatement of rent and no liability of Landlord
by reason of any injury to or interference with Tenant's business
arising from the making of repairs, alterations or improvements
in or to any portion of the Premises or Project or to fixtures,
appurtenances or equipment in the Building, except as provided in
Paragraph 24. By taking possession of the Premises, Tenant
accepts them as being in good order, condition and repair and the
condition in which Landlord is obligated to deliver them.
11. TENANT'S REPAIRS AND MAINTENANCE
Tenant shall at all times during the Term at Tenant's
expense maintain all parts of the Premises in a first-class,
good, clean and secure condition and promptly make all necessary
repairs and replacements, as determined by Landlord, including
but not limited to, all windows, glass, doors, walls, including
demising walls, and wall finishes, floors and floor covering,
heating, ventilating and air conditioning systems, ceiling
insulation, truck doors, hardware, dock bumpers, dock plates and
revelers, plumbing work and fixtures, downspouts, entries,
skylights, smoke hatches, roof vents, electrical and lighting
systems, and fire sprinklers, with materials and workmanship of
the same character, kind and quality as the original. Tenant
shall at Tenant's expense also perform regular removal of trash
and debris. If Tenant uses rail and if required by the railroad
company, Tenant agrees to sign a joint maintenance agreement
governing the use of the rail spur, if any. Tenant shall, at
Tenant's own expense, enter into a regularly scheduled
preventative maintenance/service contract with a maintenance
contractor for servicing all hot water, heating and air
conditioning systems and equipment within or serving the
Premises. The maintenance contractor and the contract must be
approved by Landlord. The service contract must include all
services suggested by the equipment within or serving the
Premises. The maintenance contractor and the contract must be
approved by Landlord. The service contract must include all
services suggested by the equipment manufacturer within the
operation/maintenance manual and must become effective and a copy
thereof delivered to Landlord within thirty (30) days after the
Term Commencement Date. Landlord may, upon notice to Tenant,
enter into such a service contract on behalf of Tenant or perform
the work and in either case charge Tenant the cost thereof along
with a reasonable amount for Landlord's overhead.
Notwithstanding anything to the contrary contained herein, Tenant
shall, at its expense, promptly repair any damage to the Premises
or the Building or Project resulting from or caused by any act of
Tenant or Tenant's Parties.
<PAGE>
12. ALTERATIONS
A. Tenant shall not make, or allow to be made, any alterations,
physical additions, improvements or partitions, including without
limitation the attachment of any fixtures or equipment, in, about
or to the Premises ("Alterations") without obtaining the prior
written consent of Landlord, which consent shall not be
unreasonably withheld with respect to proposed Alterations which:
(a) comply with all applicable Regulations; (b) are, in
Landlord's opinion, compatible with the Project and its
mechanical, plumbing, electrical heating/ventilation/air
conditioning systems; and (c) will not interfere with the use and
occupancy of any other portion of the Building or Project by any
other tenant or its invitees. Specifically, but without limiting
the generality of the foregoing, Landlord shall have the right of
written consent for all plans and specifications for the proposed
Alterations, construction means and methods, all appropriate
permits and licenses, any contractor or subcontractor to be
employed on the work of Alterations, and the time for performance
of such work, and may impose rules and regulations for
contractors and subcontractors performing such work. Tenant
shall also supply to Landlord any documents and information
reasonably requested by Landlord in connection with Landlord's
consideration of a request for approval hereunder. Tenant shall
cause all Alterations to be accomplished in a first-class, good
and workmanlike manner, and to comply with all applicable
Regulations. Tenant shall at Tenant's sole expense, perform any
additional work required under applicable Regulations due to the
Alterations hereunder. No consent by Landlord to any proposed
Alteration or additional work shall constitute a waiver of
Tenant's obligations under this Paragraph 12. Tenant shall
reimburse Landlord for all costs which Landlord may incur in
connection with granting approval to Tenant for any such
Alterations, including any costs or expenses which Landlord may
incur in electing to have outside architects and engineers review
said plans and specifications. All such Alterations shall remain
the property of Tenant until the expiration or earlier
termination of this Lease, at which time they shall be and become
the property of Landlord if Landlord so elects; provided,
however, that Landlord may, at Landlord's option, require that
Tenant, at Tenant's expense, remove any or all Alterations made
by Tenant and restore the Premises by the expiration or earlier
termination of this Lease, to their condition existing prior to
the construction of any such Alterations. All such removals and
restoration shall be accomplished in a good and workmanlike
manner so as not to cause any damage to the Premises or Project
whatsoever. If Tenant fails to remove such Alterations or
Tenant's trade fixtures or furniture, Landlord may keep and use
them or remove any of them and cause them to be stored or sold in
accordance with applicable law, at Tenant's sole expense. In
addition to and wholly apart from Tenant's obligation to pay
Tenant's Proportionate Share of Operating Expenses, Tenant shall
be responsible for and shall pay prior to delinquency any taxes
or governmental service fees, possessory interest taxes, fees or
charges in lieu of any such taxes, capital levies, or other
charges imposed upon, levied with respect to or assessed against
its personal property, on the value of Alterations within the
Premises, and on Tenant's interest pursuant to this Lease, or any
increase in any of the foregoing based on such Alterations. To
the extent that any such taxes are not separately assessed or
billed to Tenant, Tenant shall pay the amount thereof as invoiced
to Tenant by Landlord.
B. In compliance with Paragraph 27 hereof, at least ten (10)
business days before beginning construction of any Alteration,
Tenant shall give Landlord written notice of the expected
commencement date of that construction to permit Landlord to post
and record a notice of non-responsibility. Upon substantial
completion of construction, Tenant shall cause a timely notice of
completion to be recorded in the office of the recorder of the
county in which the Building is located.
13. SIGNS
All signs, notices and graphics of every kind or character,
visible in or from public view or corridors, the common areas or
the exterior of the Premises, shall be subject to Landlord's
prior written
<PAGE>
approval, which Landlord shall have the right to
withhold in its absolute and sole discretion. Tenant shall not
place or maintain any banners whatsoever or any window decor in
or on any exterior window or window fronting upon any common
areas or service area or upon any truck doors or man doors
without Landlord's prior written approval which Landlord shall
have the right to withhold in its absolute and sole discretion.
Any installation of signs or graphics on or about the Premises or
Project shall be subject to any Regulations and to any other
requirements imposed by Landlord. Tenant shall remove all such
signs or graphics by the termination of this Lease. Such
installations and removals shall be made in such manner as to
avoid injury to or defacement of the Premises, Building or
Project and any other improvements contained therein, and Tenant
shall repair any injury or defacement including without
limitation discoloration caused by such installation or removal.
14. INSPECTION/POSTING NOTICES
After reasonable notice, except in emergencies where no such
notice shall be required, Landlord and Landlord's agents and
representatives, shall have the right to enter the Premises to
inspect the same, to clean, to perform such work as may be
permitted or required hereunder, to make repairs or alterations
to the Premises or Project or to other tenant spaces therein, to
deal with emergencies, to post such notices as may be permitted
or required by law to prevent the perfection of liens against
Landlord's interest in the Project or to exhibit the Premises to
prospective tenants, purchasers, encumbrances or to others, or
for any other purpose as Landlord may be necessary or desirable;
provided, however, that Landlord shall use reasonable efforts not
to unreasonably interfere with Tenant's business operations.
Tenant shall not be entitled to any abatement of Rent by reason
of the exercise of any such right of entry. At any time within
six (6) months prior to the expiration of the Term or following
any earlier termination of this Lease or agreement to terminate
this Lease, Landlord shall have the right to erect on the
Premises and/or Project a suitable sign indicating that the
Premises are available for lease.
15. UTILITIES
Tenant shall pay directly for all water, gas, heat, air
conditioning, light, power, telephone, sewer, sprinkler charges
and other utilities and services used on or from the Premises,
together with any taxes, penalties, surcharges or the like
pertaining thereto, and maintenance charges for utilities and
shall furnish all electric light bulbs, ballasts and tubes. If
any such services are not separately metered to Tenant, Tenant
shall pay a proportion, as determined by Landlord, of all charges
jointly serving other promises. Landlord shall not be liable for
any damages directly or indirectly resulting from nor shall the
Rent or any monies owed Landlord under this Lease herein reserved
be abated by reason of: (a) the installation, use or interruption
of use of any equipment used in connection with the furnishing of
any such utilities or services; (b) the failure to furnish or
delay in furnishing any such utilities or services when such
failure or delay is caused by acts of God or the elements, labor
disturbances of any character, or any other accidents or other
conditions beyond the reasonable control of Landlord; or (c) the
limitation, curtailment, rationing or restriction on use of
water, electricity, gas or any other form of energy or any other
service or utility whatsoever serving the Premises or Project.
Landlord shall be entitled to cooperate voluntarily and in a
reasonable manner with the efforts of national, state or local
governmental agencies or utility suppliers in reducing energy or
other resource consumption. The obligation to make services
available hereunder shall be subject to the limitations of any
such voluntary, reasonable program.
16. SUBORDINATION
Without the necessity of any additional document being
executed by Tenant for the purpose of effecting a subordination,
the Lease shall be subject and subordinate at all times to: (a)
all ground leases
<PAGE>
or underlying leases which may now exist or
hereafter be executed affecting the Premises and/or the land upon
which the Premises and Project are situated, or both; and (b) any
mortgage or deed of trust which may now exist or be placed upon
the Building, the Project and/or the land upon which the Premises
or the Project are situated, or said ground leases or underlying
leases, or Landlord's interest or estate in any of said items
which is specified as security. Notwithstanding the foregoing,
Landlord shall have the right to subordinate or cause to be
subordinated any such ground leases or underlying leases or any
such liens to this Lease. In the event that any ground lease or
underlying lease terminates for any reason or any mortgage or
deed of trust is foreclosed or a conveyance in lieu of
foreclosure is made for any reason, Tenant shall, notwithstanding
any subordination, attorn to and become the Tenant of the
successor in interest to Landlord and Tenant shall not be
disturbed in its possession under this Lease by such successor in
interest so long as Tenant is not in default under this Lease.
Within ten (10) days after request by Landlord, Tenant shall
execute and deliver any additional documents evidencing Tenant's
attornment or the subordination of this Lease with respect to any
such ground leases or underlying leases or any such mortgage or
deed of trust, in the form requested by Landlord or by any ground
landlord, mortgagee, or beneficiary under a deed of trust subject
to such nondisturbance requirement.
17. FINANCIAL STATEMENTS
At the request of Landlord from time to time, Tenant shall
provide to Landlord Tenant's and any guarantor's current
financial statements or other information discussing financial
worth of Tenant and any guarantor, which Landlord shall use
solely for purposes of this Lease and in connection with the
ownership, management financing and disposition of the Project.
18. ESTOPPEL CERTIFICATE
Tenant agrees from time to time, within ten (10) days after
request of Landlord, to deliver to Landlord, or Landlord's
designee, an estoppel certificate stating that this Lease is in
full force and effect, that this Lease has not been modified (or
stating all modifications, written or oral, to this Lease), the
date to which Rent has been paid, the unexpired portion of this
Lease, that there are no current defaults by Landlord or Tenant
under this Lease (or specifying any such defaults), and such
other matters pertaining to this Lease as may be reasonably
requested by Landlord. Failure by Tenant to execute and deliver
such certificate shall constitute an acceptance of the Premises
and acknowledgment by Tenant that the statements included are
true and correct without exception. Tenant agrees that if Tenant
fails to execute and deliver such certificate within such ten
(10) day period, Landlord may execute and deliver such
certificate on Tenant's behalf and that such certificate shall be
binding on Tenant. Landlord and Tenant intend that any statement
delivered pursuant to this Paragraph may be relied upon by any
mortgagee, beneficiary, purchaser or prospective purchaser of the
Project or any interest therein. The parties agree that Tenant's
obligation to furnish such estoppel certificates in a timely
fashion is a material inducement for Landlord's execution of the
Lease, and shall be an event of default if Tenant fails to fully
comply or makes any material misstatement in any such
certificate.
19. SECURITY DEPOSIT
Tenant agrees to deposit with Landlord upon execution of
this Lease, a Security Deposit as stated in the Basic Lease
Information, which sum shall be held by Landlord, without
obligation to pay interest as security for the performance of
Tenant's covenants and obligations under this Lease. The
Security Deposit is not an advance rental deposit or a measure of
damages incurred by Landlord in case of Tenant's default. Upon
the occurrence of any event of default by Tenant Landlord may
from time to time, without prejudice to any other remedy provided
herein or provided by law, use such fund to the extent necessary
to make good any arrears of Rent or other payments due to
Landlord hereunder, and any
<PAGE>
other damage, injury, expense or
liability caused by such event of default, and Tenant shall pay
to Landlord, on demand, the amount so applied in order to restore
the Security Deposit to its original amount. Although the
Security Deposit shall be deemed the property of Landlord, any
remaining balance of such deposit shall be returned by Landlord
to Tenant at such time after termination of this Lease that all
of Tenant's obligations under this Lease have been fulfilled.
Landlord may use and commingle the Security Deposit with other
funds of Landlord.
20. TENANT'S REMEDIES
The obligations and liability of Landlord to Tenant for any
default by Landlord under the terms of this Lease are not
personal obligations of Landlord or of the individual or other
partners of Landlord or its or their partners, directors,
officers, or shareholders, and Tenant agrees to look solely to
Landlord's interest in the Project for the recovery of any amount
from Landlord, and shall not look to other assets of Landlord nor
seek recourse against the assets of the individual or other
partners of Landlord or its or their partners, directors,
officers or shareholders. Any lien obtained to enforce any such
judgment and any levy of execution thereon shall be subject and
subordinate to any lien, mortgage or deed of trust on the
Project.
21. ASSIGNMENT AND SUBLETTING
A. (1) General. Tenant shall not assign or pledge this Lease
or sublet the Premises or any part thereof, whether voluntarily
or by operation of law, or permit the use or occupancy of the
Premises or any part thereof by anyone other than Tenant, or
suffer or permit any such assignment, pledge, subleasing or
occupancy, without Landlord's prior written consent except as
provided herein. If Tenant desires to assign this Lease or
sublet any or all of the Premises, Tenant shall give Landlord
written notice (the "Transfer Notice") at least thirty (30) days
prior to the anticipated effective date of the proposed
assignment or sublease, which shall contain all of the
information reasonably requested by Landlord to address
Landlord's decision criteria specified hereinafter. Landlord
shall then have a period of thirty (30) days following receipt of
the Transfer Notice to notify Tenant in writing that Landlord
elects either: (1) to terminate this Lease as to the space so
affected as of the date so requested by Tenant; or (2) to consent
to the proposed assignment or sublease, subject, however, to
Landlord's prior written consent of the proposed assignee or
subtenant and of any related documents or agreements associated
with the assignment or sublease. If Landlord should fail to
notify Tenant in writing of such election within said period,
Landlord shall be deemed to have waived option (1) above, but
written consent by Landlord of the proposed assignee or subtenant
shall be required. If Landlord does not exercise option (1)
above, Landlord's consent to a proposed assignment or sublet
shall not be unreasonably withheld.
(2) Conditions of Landlord's Consent. Without limiting the
other instances in which it may be reasonable for Landlord to
withhold Landlord's consent to an assignment or subletting,
Landlord and Tenant acknowledge that it shall be reasonable for
Landlord to withhold Landlord's consent in the following
instances: the use of the Premises by such proposed assignee or
subtenant would not be a Permitted Use or would violate any
exclusivity arrangement which Landlord has with any other tenant
or occupant or would increase the Parking Density of the Building
or Project; the proposed assignee or subtenant is not of sound
financial condition as determined by Landlord in Landlord's sole
discretion; the proposed assignee or subtenant is a governmental
agency; the proposed assignee or subtenant does not have a good
reputation as a tenant of property; the proposed assignee or
subtenant is a person with whom Landlord is negotiating to lease
space in the Project or is a present tenant of the Project; the
assignment or subletting would entail any Alterations which would
lessen the value of the leasehold improvements in the Premises,
or Tenant is in default of any obligation of Tenant under this
Lease, or Tenant has defaulted under this Lease on three (3) or
more occasions during any twelve (12) months preceding the
<PAGE>
date that Tenant shall request consent. Failure by Landlord to
consent to a proposed assignee or subtenant shall not cause a
termination of this Lease. Upon a termination under Paragraph
21.A. (1), Landlord may lease the Premises to any party,
including parties with whom Tenant has negotiated an assignment
or sublease, without incurring any liability to Tenant. At the
option of Landlord, a surrender and termination of this Lease
shall operate as an assignment to Landlord of some or all
subleases or subtenancies. Landlord shall exercise this option
by giving notice of that assignment to such subtenants on or
before the effective date of the surrender and termination.
B. Bonus Rent. Any Rent or other consideration realized by
Tenant under any such sublease or assignment in excess of the
Rent payable hereunder, after amortization of a reasonable
brokerage commission incurred by Tenant and leasehold
improvements not to exceed $3.00/rentable square foot, shall be
divided and paid, ten percent (10%) to Tenant, ninety percent
(90%) to Landlord. In any subletting or assignment undertaken by
Tenant, Tenant shall diligently seek to obtain the maximum rental
amount available in the marketplace for comparable space
available for primary leasing.
C. Corporation. If Tenant is a corporation, a transfer of
corporate shares by sale, assignment, bequest, inheritance,
operation of law or other disposition (including such a transfer
to or by a receiver or trustee in federal or state bankruptcy,
insolvency or other proceedings) resulting in a change in the
present control of such corporation or any of its parent
corporations by the person or persons owning a majority of said
corporate shares, shall constitute an assignment for purposes of
this Lease.
D. Unincorporated Entity. If Tenant is a partnership, joint
venture, unincorporated limited liability company or other
unincorporated business form, a transfer of the interest of
persons, firms or entities responsible for managerial control of
Tenant by sale, assignment, bequest, inheritance, operation of
law or other disposition, so as to result in a change in the
present control of said entity and/or a change in the identity of
the persons responsible for the general credit obligations of
said entity shall constitute an assignment for all purposes of
this Lease.
E. Liability. No assignment or subletting by Tenant, permitted
or otherwise, shall relieve Tenant of any obligation under this
Lease or alter the primary liability of the Tenant named herein
for the payment of Rent or for the performance of any other
obligations to be performed by Tenant, including obligations
contained in Paragraph 25 with respect to any assignee or
subtenant. Any assignment or subletting which conflicts with the
provisions hereof shall be void.
22. AUTHORITY
Landlord represents and warrants that it has full right and
authority to enter into this Lease and to perform all of
Landlord's obligations hereunder and that all persons signing
this Lease on its behalf are authorized to do. Tenant represents
and warrants that it has full right and authority to enter into
this Lease and to perform all of Tenant's obligations hereunder
and that all persons signing this Lease on its behalf are
authorized to do.
23. CONDEMNATION
A. Condemnation Resulting in Termination. If the whole or any
substantial part of the Project of which the Premises are a part
should be taken or condemned for any public use under
governmental law, ordinance or regulation, or by right of eminent
domain, or by private purchase in lieu thereof, and the taking
would prevent or materially interfere with the Permitted Use of
the Premises, this Lease shall terminate and the Rent shall be
abated during the unexpired portion of this Lease, effective when
the physical taking of said Premises shall have occurred.
<PAGE>
B. Condemnation Not Resulting in Termination. If a portion of
the Project of which the Premises are a part should be taken or
condemned for any public use under governmental law, ordinance or
regulation, or by right of eminent domain, or by private purchase
in lieu thereof, and the taking materially interferes with the
Permitted Use of the Premises, and this Lease is not terminated
as provided in Paragraph 23.A. above, the Rent payable hereunder
during the unexpired portion of the Lease shall be reduced,
beginning on the date when the physical taking shall have
occurred, to such amount as may be fair and reasonable under all
of the circumstances.
C. Award. Landlord shall be entitled to any and all payment
income, rent, award or any interest therein whatsoever which may
be paid or made in connection with such taking or conveyance and
Tenant shall have no claim against Landlord or otherwise for the
value of any unexpired portion of this Lease. Notwithstanding
the foregoing, any compensation specifically and separately
awarded Tenant for Tenant's personal property and moving costs,
shall be and remain the property of Tenant.
D. Waiver of CCP1265.130. Each party waives the provisions
of California Civil Code Procedure Section 1265.130 allowing
either party to petition the superior court to terminate this
Lease as a result of a partial taking.
24. CASUALTY DAMAGE
A. General. If the Premises or Building should be damaged or
destroyed by fire, tornado, or other casualty (collectively,
"Casualty"), Tenant shall give immediate written notice thereof
to Landlord. Within thirty (30) days after Landlord's receipt of
such notice, Landlord shall notify Tenant whether in Landlord's
estimation material restoration of the Premises can reasonably be
made either. (1) within ninety (90) days; (2) in more than ninety
(90) days but within one hundred eighty (180) days; or (3) in
more than one hundred eighty (180) days from the date of such
notice and receipt of required permits for such restoration.
Landlord's determination shall be binding on Tenant.
B. Within 90 Days. If the Premises or Building should be
damaged by Casualty to such extent that material restoration can
in Landlord's estimation be reasonably completed within ninety
(90) days after the date of such damage and receipt of required
permits for such restoration, this Lease shall not terminate.
Provided that insurance proceeds are received by Landlord to
fully repair the damage, Landlord shall proceed to rebuild and
repair the Premises in the manner determined by Landlord, except
that Landlord shall not be required to rebuild, repair or replace
any part of the Alterations which may have been placed on or
about the Premises by Tenant. If the Premises are untenantable
in whole or in part following such damage, the Rent payable
hereunder during the period in which they are untenantable shall
be abated proportionately, but only to the extent of rental
abatement insurance proceeds received by Landlord during the time
and to the extent the Premises are unfit for occupancy.
C. Greater than 90 Days. If the Premises or Building should be
damaged by Casualty to such extent that rebuilding or repairs can
in Landlord's estimation be reasonably completed in more than
ninety (90) days but within one hundred eighty (180) days after
the date of such damage and receipt of required permits for such
rebuilding or repair, then Landlord shall have the option of
either: (1) terminating this Lease effective upon the date of the
occurrence of such damage, in which event the Rent shall be
abated during the unexpired portion of this Lease; or (2)
electing to rebuild or repair the Premises in the manner
determined by Landlord. Notwithstanding the above, Landlord
shall not be required to rebuild, repair or replace any part of
the Alterations which may have been placed, on or about the
Premises by Tenant. If the Premises are untenantable in whole or
in part following such damage, the Rent payable hereunder during
the period in which they are untenantable shall be abated
proportionately,
<PAGE>
but only to the extent of rental abatement
insurance proceeds received by Landlord during the time and to
the extent the Premises are unfit for occupancy. In the event
that Landlord should fail to complete such repairs and rebuilding
within one hundred eighty (180) days after the date upon which
Landlord is notified by Tenant of such damage and receipt of
required permits, such period of time to be extended for delays
caused by the fault or neglect of Tenant or otherwise by Tenant
or because of acts of God, acts of public agencies, labor
disputes, strikes, fires, freight embargoes, rainy or stormy
weather, inability to obtain materials, supplies or fuels, or
delays of the contractors or subcontractors or any other causes
or contingencies beyond the reasonable control of Landlord,
Tenant may at Tenant's option within ten (10) days after the
expiration of such one hundred eighty (180) day period (as such
may be extended), terminate this Lease by delivering written
notice of termination to Landlord as Tenant's exclusive remedy,
whereupon all rights hereunder shall cease and terminate thirty
(30) days after Landlord's receipt of such termination notice.
D. Greater than 180 Days. If the Premises or Building should
be so damaged by Casualty that rebuilding or repairs cannot in
Landlord's estimation be completed one hundred eighty (180) days
after such damage and receipt of required permits for such
rebuilding or repair, this Lease shall terminate and the Rent
shall be abated during the unexpired portion of this Lease,
effective upon the date of the occurrence of such damage.
E. Tenant's Fault. Notwithstanding anything herein to the
contrary, if the Premises or any other portion of the Building
are damaged by Casualty resulting from the fault, negligence, or
breach of this Lease by Tenant or any of Tenant's Parties, Base
Rent and Additional Rent shall not be diminished during the
repair of such damage and Tenant shall be liable to Landlord for
the cost and expense of the repair and restoration of the
Building caused thereby to the extent such cost and expense is
not covered by insurance proceeds.
F. Insurance Proceeds. Notwithstanding anything herein to the
contrary, in the event that the Premises or Building are damaged
or destroyed and are not fully covered by the insurance proceeds
received by Landlord or in the event that the holder of any
indebtedness secured by a mortgage or deed of trust covering the
Premises requires that the insurance proceeds be applied to such
indebtedness, then in either case Landlord shall have the right
to terminate this Lease by delivering written notice of
termination to Tenant within thirty (30) days after the date of
notice to Landlord that said damage or destruction is not fully
covered by insurance or such requirement is made by any such
holder, as the case may be, whereupon all rights and obligations
hereunder shall cease and terminate.
G. Waiver. This Paragraph 24 shall be Tenant's sole and
exclusive remedy in the event of damage or destruction to the
Premises or the Building. As a material inducement to Landlord
entering into this Lease, Tenant hereby waives any rights it may
have under Sections 1932, 1933(4), 1941 or 1942 of the Civil Code
of California with respect to any destruction of the Premises,
Landlord's obligation for tenantability of the Premises and
Tenant's right to make repairs and deduct the expenses of such
repairs, or under any similar law, statute or ordinance now or
hereafter in effect.
H. Tenant's Personal Property. In the event of any damage or
destruction of the Premises or the Building, under no
circumstances shall Landlord be required to repair any injury or
damage to, or make any repairs to or replacements of, Tenant's
personal property.
25. HOLDING OVER
Unless Landlord expressly consents in writing to Tenant's
holding over, Tenant shall be only a Tenant at sufferance,
whether or not Landlord accepts any Rent from Tenant or any other
person while Tenant is holding over without Landlord's written
consent If Tenant shall retain possession of the Premises or any
portion thereof without Landlord's consent following the
expiration of this Lease or sooner termination for any reason,
then Tenant shall pay to Landlord for each day of such retention
double the amount of daily rental as of the last month prior to
the date or expiration or earlier termination. Tenant shall also
indemnify, defend, protect and hold Landlord harmless from any
loss, liability or cost, including reasonable attorneys' fees,
resulting from delay by Tenant in surrendering the Premises,
including, without limitation, any claims made by the succeeding
tenant founded on such delay. Acceptance of Rent by Landlord
following expiration or earlier termination shall not constitute
a renewal of this Lease, and nothing contained in this Paragraph
25 shall waive Landlord's right of reentry or any other right.
Additionally, in the event that upon expiration or earlier
termination of this Lease, Tenant has not fulfilled its
obligation with respect to repairs and cleanup of the Premises or
any other Tenant obligations as set forth in this Lease, then
Landlord shall have the right to perform any such obligations as
it deems necessary at Tenant's sole cost and expense and any time
required by Landlord to complete such obligations shall be
considered a period of holding over and the terms of this
Paragraph 25 shall apply. The provisions of this paragraph 25
shall survive any expiration or earlier termination of this
Lease.
26. DEFAULT
A. Events of Default. The occurrence of any of the following
shall constitute an event of default on the part of Tenant:
(1) Abandonment. Abandonment or vacation of the Premises for a
continuous period in excess of five (5) days. Tenant waives any
right to notice Tenant may have under Section 1951.3 of the Civil
Code of the State of California, the terms of this Paragraph
26.A. being deemed such notice to Tenant as required by said
Section 1951.3.
(2) Nonpayment of Rent. Failure to pay any installment of Rent
or any other amount due and payable hereunder upon the date when
said payment is due.
(3) Other Obligations. Failure to perform any obligation,
agreement or covenant under this Lease other than those matters
specified in subparagraphs (1) and (2) of this Paragraph 26.A.,
such failure continuing for fifteen (15) days after written
notice of such failure.
(4) General Assignment. A general assignment by Tenant for the
benefit of creditors.
(5) Bankruptcy. The filing of any voluntary petition in
bankruptcy by Tenant, or the filing of an involuntary petition by
Tenant's creditors, which involuntary petition remains
undischarged for a period of thirty (30) days. In the event that
under applicable law, the trustee in bankruptcy or Tenant has the
right to affirm this Lease and continue to perform the
obligations of Tenant hereunder, such trustee or Tenant shall, in
such time period as may be permitted by the bankruptcy court
having jurisdiction, cure all defaults of Tenant hereunder
outstanding as of the date of the affirmance of this Lease and
provide to Landlord such adequate assurances as may be necessary
to ensure Landlord of the continued performance of Tenant's
obligations under this Lease.
(6) Receivership. The employment of a receiver to take
possession of substantially all of Tenant's assets or the
Premises. if such appointment remains undismissed or undischarged
for a period of ten (10) days after the order therefor.
<PAGE>
(7) Attachment. The attachment, execution or other judicial
seizure of all or substantially all of Tenant's assets or the
Premises, if such attachment or other seizure remains undismissed
or undischarged for a period of ten (10) days after the levy
thereof.
B. Remedies Upon Default.
(1) Termination. In the event of the occurrence of any event of
default, Landlord shall have the right to give a written
termination notice to Tenant, and on the date specified in such
notice, Tenant's right to possession shall terminate, and this
Lease shall terminate unless on or before such date all Rent in
arrears and all costs and expenses incurred by or on behalf of
Landlord hereunder shall have been paid by Tenant and all other
events of default of this Lease by Tenant at the time existing
shall have been fully remedied to the satisfaction of Landlord.
At any time after such termination, Landlord may recover
possession of the Premises or any part thereof and expel and
remove therefrom Tenant and any other person occupying the same,
by any lawful means, and again repossess and enjoy the Premises
without prejudice to any of the remedies that Landlord may have
under this Lease, or at law or equity by any reason of Tenant's
default or of such termination. Landlord hereby reserves the
right to recognize the continued possession of any subtenant.
(2) Continuation After Default. Even though an event of default
may have occurred, this Lease shall continue in effect for so
long as Landlord does not terminate Tenant's right to possession
under Paragraph 26.B.(I) hereof, and Landlord may enforce all of
Landlord's rights and remedies under this Lease and at law or in
equity, including without limitation, the right to recover Rent
as it becomes due, and Landlord, without terminating this Lease,
may exercise all of the rights and remedies of a landlord under
Section 1951.4 of the Civil Code of the State of California or
any successor code section. Acts of maintenance, preservation or
efforts to lease the Premises or the appointment of a receiver
under application of Landlord to protect Landlord's interest
under this Lease or other entry by Landlord upon the Premises
shall not constitute an election to terminate Tenant's right to
possession.
(3) Increased Security Deposit. If Tenant is in default under
Paragraph 26.A.(2) hereof and such default remains uncured for
ten (10) days after such occurrence or such default occurs more
than three times in any twelve (12) month period, Landlord may
require that Tenant increase the Security Deposit to the amount
of three times the current month's Rent at the time of the most
recent default.
C. Damages After Default. Should Landlord terminate this Lease
pursuant to the provisions of Paragraph 26.B.(I) hereof, Landlord
shall have the rights and remedies of a Landlord provided by
Section 1951.2 of the Civil Code of the State of California. or
any successor code sections. Upon such termination, in addition
to any other rights and remedies to which Landlord may be
entitled under applicable law or at equity, Landlord shall be
entitled to recover from Tenant: (1) the worth at the time of
award of the unpaid Rent and other amounts which had been earned
at the time of termination, (2) the worth at the time of award of
the amount by which the unpaid Rent that would have been earned
after the date of termination until the time of award exceeds the
amount of such Rent loss that Tenant proves could have been
reasonably avoided; (3) the worth at the time of award of the
amount by which the unpaid Rent for the balance of the Term after
the time of the award exceeds the amount of such Rent loss that
the Tenant proves could be reasonably avoided; and (4) any other
amount and court costs necessary to compensate Landlord for all
detriment proximately caused by Tenant's failure to perform
Tenant's obligations under this Lease or which, in the ordinary
course of things, would be likely to result therefrom. The
"worth at the time of award" as used in (1) and (2) above shall
be computed at the lesser of the "prime rate," as announced from
time to time by Wells Fargo Bank, N.A. (San Francisco) or its
successor, plus five (5) percentage points, or the maximum
interest rate allowed by law ("Applicable
<PAGE>
Interest Rate"). The
"worth at the time of award" as used in (3) above shall be
computed by discounting such amount at the Federal Discount Rate
of the Federal Reserve Bank of San Francisco at the time of the
award plus one percent (l%). If this Lease provides for any
periods during the Term during which Tenant is not required to
pay Base Rent or if Tenant otherwise receives a Rent concession,
then upon the occurrence of an event of default, Tenant shall owe
to Landlord the full amount of such Base Rent or value of such
Rent concession, plus interest at the Applicable Interest Rate,
calculated from the date that such Base Rent or Rent concession
would have been payable.
D. Late Charge. In addition to its other remedies, Landlord
shall have the right without notice or demand to add to the
amount of any payment required to be made by Tenant hereunder,
and which is not paid and received by Landlord on or before the
first day of each calendar month, an amount equal to ten percent
(10%) of the delinquency for each month or portion thereof that
the delinquency remains outstanding to compensate Landlord for
the loss of the use of the amount not paid and the administrative
costs caused by the delinquency, the parties agreeing that
Landlord's damage by virtue of such delinquencies would be
extremely difficult and impracticable to compute and the amount
stated herein represents a reasonable estimate thereof. Any
waiver by Landlord of any late charges shall not constitute a
waiver of other late charges or any other remedies available to
Landlord.
E. Remedies Cumulative. All rights, privileges and elections
or remedies of the parties are cumulative and not alternative, to
the extent permitted by law and except as otherwise provided
herein.
27. LIENS
Tenant shall at all times keep the Premises and the Project
free from liens arising out of or related to work or services
performed, materials or supplies furnished or obligations
incurred by Tenant or in connection with work made, suffered or
done by or on behalf of Tenant in or on the Premises or Project.
In the event that Tenant shall not, within ten (10) days
following the imposition of any such lien, cause the same to be
released of record by payment or posting of a proper bond,
Landlord shall have, in addition to all other remedies provided
herein and by law, the right, but not the obligation, to cause
the same to be released by such means as Landlord shall deem
proper, including payment of the claim giving rise to such lien.
All sums paid by Landlord on behalf of Tenant and all expenses
incurred by Landlord in connection therefor shall be payable to
Landlord by Tenant on demand with interest at the Applicable
Interest Rate. Landlord shall have the right at all times to
post and keep posted on the Premises any notices permitted or
required by law, or which Landlord shall deem proper, for the
protection of Landlord, the Premises, the Project and any other
party having an interest therein, from mechanics' and
materialmen's liens, and Tenant shall give Landlord not less than
ten (10) business days prior written notice of the commencement
of any work in the Premises or Project which could lawfully give
rise to a claim for mechanics' or materialmen's liens to permit
Landlord to post and record a timely notice of non-
responsibility.
28. SUBSTITUTION
A. At any time after execution of this Lease, Landlord may
substitute for the Premises other premises in the Project or
owned by Landlord in the vicinity of the Project (the "New
Premises") upon not less than sixty (60) days prior written
notice, in which event the New Premises shall be deemed to be the
Premises for all purposes hereunder and this Lease shall be
deemed modified accordingly to reflect the new location and shall
remain in full force and effect as so modified, provided that:
<PAGE>
(1) The New Premises shall be similar in area and in function
for Tenant's purposes;
(2) Any such substitution is effected for the purpose of
accommodating a tenant who will occupy all or a substantial
portion of the Building or the Project area; and
(3) If Tenant is occupying the Premises at the time of such
substitution, Landlord shall pay the expense of physically moving
Tenant, Tenant's property and equipment to the New Premises and
shall, at Landlord's sole cost, improve the New Premises with
improvements substantially similar to those the Landlord has
committed to provide or has provided in the Premises.
29. TRANSFERS BY LANDLORD
In the event of a sale or conveyance by Landlord of the
Building or a foreclosure by any creditor of Landlord, the same
shall operate to release Landlord from any liability upon any of
the covenants or conditions, express or implied, herein contained
in favor of Tenant, to the extent required to be performed after
the passing of title to Landlord's successor-in-interest. In
such event, Tenant agrees to look solely to the responsibility of
the successor-in-interest of Landlord under this Lease with
respect to the performance of the covenants and duties of
"Landlord" to be performed after the passing of title to
Landlord's successor-in-interest. This Lease shall not be
affected by any such sale and Tenant agrees to attorn to the
purchaser or assignee. Landlord's successor(s)-in-interest shall
not have liability to Tenant with respect to the failure to
perform any of the obligations of "Landlord," to the extent
required to be performed prior to the date such successor(s)-in-
interest became the owner of the Building.
30. RIGHT OF LANDLORD TO PERFORM TENANT'S COVENANTS
All covenants and agreements to be performed by Tenant under
any of the terms of this Lease shall be performed by Tenant at
Tenant's sole cost and expense and without any abatement of Rent.
If Tenant shall fail to pay any sum of money, other than Base
Rent, required to be paid by Tenant hereunder or shall fail to
perform any other act on Tenant's part to be performed hereunder,
including Tenant's obligations under Paragraph 11 hereof, and
such failure shall continue for fifteen (15) days after notice
thereof by Landlord, in addition to the other rights and remedies
of Landlord, Landlord may make any such payment and perform any
such act on Tenant's part. In the case of an emergency, no prior
notification by Landlord shall be required. Landlord may take
such actions without any obligation and without releasing Tenant
from any of Tenant's obligations. All sums so paid by Landlord
and all incidental costs incurred by Landlord and interest
thereon at the Applicable Interest Rate, from the date of payment
by Landlord, shall be paid to Landlord on demand as Additional
Rent.
31. WAIVER
If either Landlord or Tenant waives the performance of any
term, covenant or condition contained in this Lease, such waiver
shall not be deemed to be a waiver of any subsequent breach of
the same or any other term, covenant or condition contained
herein. The acceptance of Rent by Landlord shall not constitute
a waiver of any preceding breach by Tenant of any term, covenant
or condition of this Lease, regardless of Landlord's knowledge of
such preceding breach at the time Landlord accepted such Rent.
Failure by Landlord to enforce any of the terms, covenants or
conditions of this Lease for any length of time shall not be
deemed to waive or decrease the right of Landlord to insist
thereafter upon strict performance by Tenant. Waiver by Landlord
of any term, covenant or condition contained in this Lease may
only be made by a written document signed by Landlord.
<PAGE>
32. NOTICES
Each provision of this Lease or of any applicable
governmental laws, ordinances, regulations and other requirements
with reference to sending, mailing, or delivery of any notice or
the making of any payment by Landlord or Tenant to the other
shall be deemed to be complied with when and if the following
steps are taken:
A. Rent. All Rent and other payments required to be made by
Tenant to Landlord hereunder shall be payable to Landlord at
Landlord's Remittance Address set forth in the Basic Lease
Information, or at such other address as Landlord may specify
from time to time by written notice delivered in accordance
herewith. Tenant's obligation to pay Rent and any other amounts
to Landlord under the terms of this Lease shall not be deemed
satisfied until such Rent and other amounts have been actually
received by Landlord.
B. Other. All notices, demands, consents and approvals which
may or are required to be given by either party to the other
hereunder shall be in writing and either personally delivered,
sent by commercial overnight courier, or mailed, certified or
registered, postage prepaid, and addressed to the party to be
notified at the Notice Address for such party as specified in the
Basic Lease Information or to such other place as the party to be
notified may from time to time designate by at least fifteen (15)
days notice to the notifying party. Notices shall be deemed
served upon receipt or refusal to accept delivery. Tenant
appoints as its agent to receive the service of all default
notices and notice of commencement of unlawful detainer
proceedings the person in charge of or apparently in charge of
occupying the Premises at the time, and, if there is no such
person, then such service may be made by attaching the same on
the main entrance of the Premises.
33. ATTORNEYS' FEES
In the event that Landlord places the enforcement of this
Lease, or any part thereof, or the collection of any Rent due, or
to become due hereunder, or recovery of possession of the
Premises in the hands of an attorney, Tenant shall pay to
Landlord, upon demand, Landlord's reasonable attorneys' fees and
court costs, whether incurred at trial, appeal or review. In any
action which Landlord or Tenant brings to enforce its respective
rights hereunder, the unsuccessful party shall pay all costs
incurred by the prevailing party including reasonable attorneys'
fees, to be fixed by the court, and said costs and attorneys'
fees shall be a part of the judgment in said action.
34. SUCCESSORS AND ASSIGNS
This Lease shall be binding upon and inure to the benefit of
Landlord, its successors and assigns, and shall be binding upon
and inure to the benefit of tenant, its successors, and to the
extent assignment is approved by Landlord as provided hereunder,
Tenant's assigns.
35. FORCE MAJEURE
If performance by a party of any portion of this Lease is
made impossible by any prevention, delay, or stoppage caused by
strikes, lockouts, labor disputes, acts of God, inability to
obtain services, labor, or materials or reasonable substitutes
for those items, government actions, civil commotions, fire or
other casualty, or other causes beyond the reasonable control of
the party obligated to Perform, performance by that party for a
period equal to the period of that prevention, delay, or stoppage
is excused. Tenant's obligation to pay Rent, however, is not
excused by this Paragraph 35.
<PAGE>
36. SURRENDER OF PREMISES
Tenant shall, upon expiration or sooner termination of this
Lease, surrender the Premises to Landlord in the same condition
as existed on the date Tenant originally took possession thereof,
including, but not limited to, all interior walls cleaned, all
interior painted surfaces repainted in the original color, all
holes in walls repaired, all carpets shampooed and cleaned, all
HVAC equipment in operating order and in good repair, and all
floors cleaned, waxed, and free of any Tenant-introduced marking
or painting, all to the reasonable satisfaction of Landlord.
Tenant shall remove all of its debris from the Project. At or
before the time of surrender, Tenant shall comply with the terms
of Paragraph 12.A. hereof with respect to Alterations to the
Premises and all other matters addressed in such Paragraph. If
the Premises are not so surrendered at the expiration or sooner
termination of this Lease, the provisions of Paragraph 25 hereof
shall apply. All keys to the Premises or any part thereof shall
be surrendered to Landlord upon expiration or sooner termination
of the Term. Tenant shall give written notice to Landlord at
least thirty (30) days prior to vacating the Premises and shall
meet with Landlord for a joint inspection of the Premises at the
time of vacating. In the event of Tenant's failure to give such
notice or participate in such joint inspection, Landlord's
inspection at or after Tenant's vacating the Premises shall
conclusively be deemed correct for purposes of determining
Tenant's responsibility for repairs and restoration.
37. MISCELLANEOUS
A. General. The term "Tenant' or any pronoun used in place
thereof shall indicate and include the masculine or feminine, the
singular or plural number, individuals, firms or corporations,
and their respective successors, executors, administrators and
permitted assigns, according to the context hereof.
B. Time. Time is of the essence regarding this Lease and all
of its provisions.
C. Choice of Law. This Lease shall in all respects be governed
by the laws of the State of California.
D. Entire Agreement. This Lease, together with its Exhibits,
contains all the agreements of the parties hereto and supersedes
any previous negotiations. There have been no representations
made by the Landlord or its agents or understandings made between
the parties other than those set forth in this Lease and its
Exhibits.
E. Modification. This Lease may not be modified except by a
written instrument signed by the parties hereto.
F. Severability. If, for any reason whatsoever, any of the
provisions hereof shall be unenforceable or ineffective, all of
the other provisions shall be and remain in full force and
effect.
G. Recordation. Tenant shall not record this Lease or a short
form memorandum hereof.
H. Examination of Lease. Submission of this Lease to Tenant
does not constitute an option or offer to lease and this Lease is
not effective otherwise until execution and delivery by both
Landlord and Tenant.
<PAGE>
I. Accord and Satisfaction. No payment by Tenant of a lesser
amount than the total Rent due nor any endorsement on any check
or letter accompanying any check or payment of Rent shall be
deemed an accord and satisfaction of full payment of Rent, and
Landlord may accept such payment without prejudice to Landlord's
right to recover the balance of such Rent or to pursue other
remedies.
J. Easements. Landlord may grant easements on the Project and
dedicate for public use portions of the Project without Tenant's
consent; provided that no such grant or dedication shall
materially interfere with Tenant's Permitted Use of the Premises.
Upon Landlord's request, Tenant shall execute, acknowledge and
deliver to Landlord documents, instruments, maps and plats
necessary to effectuate Tenant's covenants hereunder.
K. Drafting and Determination Presumption. The parties
acknowledge that this Lease has been agreed to by both the
parties, that both Landlord and Tenant have consulted with
attorneys with respect to the terms of this Lease and that no
presumption shall be created against Landlord because Landlord
drafted this Lease. Except as otherwise specifically set forth
in this Lease, with respect to any consent, determination or
estimation of Landlord required or allowed in this Lease or
requested of Landlord, Landlord's consent, determination or
estimation shall be given or made solely by Landlord in
Landlord's good faith opinion, whether or not objectively
reasonable.
L. Exhibits. The Exhibits attached hereto are hereby
incorporated herein by this reference.
M. No Light, Air or View Easement. Any diminution or shutting
off of light, air or view by any structure which may be erected
on lands adjacent to or in the vicinity of the Building shall in
no way affect this Lease or impose any liability on Landlord.
N. No Third Party Benefit. This Lease is a contract between
Landlord and Tenant and nothing herein is intended to create any
third party benefit.
O. Quiet Enjoyment. Upon payment by Tenant of the Rent, and
upon the observance and performance of all of the other
covenants, terms and conditions on Tenant's part to be observed
and performed, Tenant shall peaceably and quietly hold and enjoy
the Premises for the term hereby demised without hindrance or
interruption by Landlord or any other person or persons lawfully
or equitably claiming by, through or under Landlord, subject,
nevertheless, to all of the other terms and conditions of this
Lease. Landlord shall not be liable for any hindrance,
interruption, interference or disturbance by other tenants or
third persons, nor shall Tenant be released from any obligations
under this Lease because of such hindrance, interruption,
interference or disturbance.
P. Counterparts. This Lease may be executed in any number of
Counterparts, each of which shall be deemed an original.
Q. Multiple Parties. If more than one person or entity is
named herein as Tenant, such multiple parties shall have joint
and several responsibility to comply with the terms of this
Lease.
38. ADDITIONAL PROVISIONS
A. Addenda: Exhibits___ through ___ and Addenda___ through ___
attached hereto are hereby incorporated into and made a part of
this Lease as though fully set forth herein.
<PAGE>
EXHIBIT C
Rules and Regulations
1. Sidewalks, halls, passages, exits, entrances, elevators,
escalators and stairways shall not be obstructed by tenants or
used by tenants for any purpose other than for ingress to and
egress from their respective premises. The halls, passages,
exits, entrances, elevators and stairways are not for the use of
the general public and Landlord shall in all cases retain the
right to control and prevent access thereto by all persons whose
presence, in the judgment of Landlord, shall be prejudicial to
the safety, character, reputation and interests of the Building,
the Project and its tenants, provided that nothing herein
contained shall be construed to prevent such access to persons
with whom any tenant normally deals in the ordinary course of
such tenant's business unless such persons are engaged in illegal
activities. No tenant, and no employees or invitees of any
tenant, shall go upon the roof of any Building, except as
authorized by Landlord. No tenant, and no employees or invitees
of any tenant shall move any common area furniture without
Landlord's consent.
2. No sign, placard, banner, picture, name, advertisement or
notice, visible from the exterior of the Premises or the Building
or the common areas of the Building shall be inscribed, painted,
affixed, installed or otherwise displayed by Tenant either on its
Premises or any part of the Building or Project without the prior
written consent of Landlord in Landlord's sole and absolute
discretion. Landlord shall have the right to remove any such
sign, placard, banner, picture, name, advertisement or notice
without notice to and at the expense of the Tenant, which were
installed or displayed in violation of this rule. If Landlord
shall have given such consent to Tenant at anytime, whether
before or after the execution of Tenant's Lease, such consent
shall in no way operate as a waiver or release of any of the
provisions hereof or of the Lease, and shall be deemed to relate
only to the particular sign, placard, banner, picture, name,
advertisement or notice so consented to by Landlord and shall not
be construed as dispensing with the necessity of obtaining the
specific written consent of Landlord with respect to any other
such sign, placard, banner, picture, name, advertisement or
notice.
All approved signs or lettering on doors and walls shall be
printed, painted, affixed or inscribed at the expense of Tenant
by a person or vendor approved by Landlord and shall be removed
by Tenant at the time of vacancy at Tenant's expense.
3. The directory of the Building will be provided exclusively
for the display of the name and location of tenants only and
Landlord reserves the right to charge for the use thereof and to
exclude any other names therefrom.
4. No curtains, draperies, blinds, shutters, shades, screens or
other coverings, awnings, hangings or decorations shall be
attached to, hung or placed in, or used in connection with, any
window or door on the Premises without the prior written consent
of Landlord. In any event with the prior written consent of
Landlord, all such items shall be installed inboard of Landlord's
standard window covering and shall in no way be visible from the
exterior of the Building. All electrical ceiling fixtures hung
in offices or spaces along the perimeter of the Building must be
fluorescent or of a quality, type, design, and bulb color
approved by Landlord. No articles shall be placed or kept on the
window sills so as to be visible from the exterior of the
Building. No articles shall be placed against glass partitions
or doors which Landlord considers unsightly from outside Tenant's
Premises.
5. Landlord reserves the right to exclude from the Building and
the Project between the hours of 6 p.m. and 8 am. and at all
hours on Saturdays, Sundays and legal holidays, all persons who
are not tenants or
<PAGE>
their accompanied guests in the Building. Each tenant shall be
responsible for all persons for whom it allows to enter the Building
or the Project and shall be liable to Landlord for all acts of such persons.
Landlord and its agents shall not be liable for damages for any
error concerning the admission to, or exclusion from, the
Building or the Project of any person.
During the continuance of any invasion, mob, riot, public
excitement or other circumstance rendering such action advisable
in Landlord's opinion, Landlord reserves the right (but shall not
be obligated) to prevent access to the Building and the Project
during the continuance of that event by any means it considers
appropriate for the safety of tenants and protection of the
Building, property in the Building and the Project.
6. All cleaning and janitorial services for the Building and the
Premises shall be provided exclusively through 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 Tenant's carelessness or
indifference in the preservation of good order and cleanliness of
its Premises. Landlord shall in no way be responsible to Tenant
for any loss of property on the Premises, however occurring, or
for any damage done to Tenant's property by the janitor or any
other employee or any other person.
7. Tenant shall see that all doors of its Premises are closed
and securely locked and must observe strict care and caution that
all water faucets or water apparatus, coffee pots or other heat-
generating devices are entirely shut off before Tenant or its
employees leave the Premises, and that all utilities shall
likewise be carefully shut off, so as to prevent waste or damage.
Tenant shall be responsible for any damage or injuries sustained
by other tenants or occupants of the Building or Project or by
Landlord for noncompliance with this rule. On multiple-tenancy
floors, all tenants shall keep the door or doors to the Building
corridors closed at all times except for ingress and egress.
8. Tenant shall not use any method of heating or air-
conditioning other than that supplied by Landlord. As more
specifically provided in the Tenant's lease of the Premises,
Tenant shall not waste electricity, water or air-conditioning and
agrees to cooperate fully with Landlord to assure the most
effective operation of the Building's heating and air-
conditioning, and shall refrain from attempting to adjust any
controls other than room thermostats installed for Tenant's use.
9. Landlord will furnish Tenant free of charge with two keys to
each door in the Premises. Landlord may make a reasonable charge
for any additional keys, and Tenant shall not make or have made
additional keys. Tenant shall not alter any lock or access
device or install a new or additional lock or access device or
bolt on any door of its Premises, without the prior written
consent of Landlord. If Landlord shall give its consent, Tenant
shall in each case furnish Landlord with a key for any such lock.
Tenant, upon the termination of its tenancy, shall deliver to
Landlord the keys for all doors which have been furnished to
Tenant, and in the event of loss of any keys so furnished, shall
pay Landlord therefor.
10. The restrooms, toilets, urinals, wash bowls and other
apparatus shall not be used for any purpose other than that for
which they were constructed and no foreign substance of any kind
whatsoever shall be thrown into them. The expense of any
breakage, stoppage, or damage resulting from violation of this
rule shall be bone by the tenant who, or whose employees or
invitees, shall have caused the breakage, stoppage, or damage.
11. Tenant shall not use or keep in or on the Premises, the
Building or the Project any kerosene, gasoline, or inflammable or
combustible fluid or material.
<PAGE>
12. Tenant shall not use, keep or permit to be used or kept in
its Premises any foul or noxious gas or substance. Tenant shall
not allow 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,
nor shall any animals or birds be brought or kept in or about the
Premises, the Building, or the Project.
13. No cooking shall be done or permitted by any tenant on the
Premises, except that use by the tenant of Underwriters'
Laboratory (UL) approved equipment, refrigerators and microwave
ovens may be used in the Premises for the preparation of coffee,
tea, hot chocolate and similar beverages, storing and heating
food for tenants and their employees shall be permitted. All
uses must be in accordance with all applicable federal, state and
city laws, codes, ordinances, rules and regulations and the
Lease.
14. Except with the prior written consent of Landlord, Tenant
shall not sell, or permit the sale, at retail, of newspapers,
magazines, periodicals, theater tickets or any other goods or
merchandise in or on the Premises, nor shall Tenant carry on, or
permit or allow any employee or other person to carry on, the
business of stenography, typewriting or any similar business in
or from the Premises for the service or accommodation of
occupants of any other portion of the Building, nor shall the
Premises be used for the storage of merchandise or for
manufacturing of any kind, or the business of a public barber
shop, beauty parlor, nor shall the Premises be used for any
illegal, improper, immoral or objectionable purpose, or any
business or activity other than that specifically provided for in
such Tenant's Lease. Tenant shall not accept hairstyling,
barbering, shoeshine, nail, massage or similar services in the
Premises or common areas except as authorized by Landlord.
15. If Tenant requires telegraphic, telephonic,
telecommunications, data processing, burglar alarm or similar
services, it shall first obtain, and comply with, Landlord's
instructions in their installation.
16. Landlord will direct electricians as to where and how
telephone, telegraph and electrical wires arc to be introduced or
installed. No boring or cutting for wires will be allowed
without the prior consent of Landlord. The location of burglar
alarms, telephones, call boxes and other office equipment affixed
to the Premises shall be subject to the written approval of
Landlord.
17. Tenant shall not install any radio or television antenna,
satellite dish, loudspeaker or any other device on the exterior
walls or the roof of the Building, without Landlord's consent.
Tenant shall not interfere with radio or television broadcasting
or reception from or in the Building, the Project or elsewhere.
18. Tenant shall not mark, or drive nails, screws or drill into
the partitions, woodwork or drywall or in any way deface the
premises or any part thereof without Landlord's consent. Tenant
may install nails and screws in areas of the Premises that have
been identified for those purposes to Landlord by Tenant at the
time those walls or partitions were installed in the Premises.
Tenant shall not lay linoleum, tile, carpet or any other floor
covering so that the same shall be affixed to the floor of its
Premises in any manner except as approved in writing by Landlord.
The expense of repairing any damage resulting from a violation of
this rule or the removal of any floor covering shall be borne by
the tenant by whom, or by whose contractors, employees or
invitees, the damage shall have been caused.
19. No furniture, freight, equipment, materials, supplies,
packages, merchandise or other property will be received in the
Building or carried up or down the elevators except between such
hours and in such elevators as shall be designated by Landlord.
<PAGE>
Tenant shall not place a load upon any floor of its Premises
which exceeds the load per square foot which such floor was
designed to carry or which is allowed by law. Landlord shall
have the right to prescribe the weight, size and position of all
safes, furniture or other heavy equipment brought into the
Building. Safes or other heavy objects shall, if considered
necessary by Landlord, stand on wood strips of such thickness as
determined by Landlord to be necessary to properly distribute the
weight thereof. Landlord will not be responsible for loss of or
damage to any such safe, equipment or property from any cause,
and all damage done to the Building by moving or maintaining any
such safe, equipment or other property shall be repaired at the
expense of Tenant.
Business machines and mechanical equipment belonging to Tenant
which cause noise or vibration that may be transmitted to the
structure of the Building or to any space therein to such a
degree as to be objectionable to Landlord or to any tenants in
the Building shall be placed and maintained by Tenant, at
Tenant's expense, on vibration eliminators or other devices
sufficient to eliminate noise or vibration. The persons employed
to move such equipment in or out of the Building must be
acceptable to Landlord.
20. Tenant shall not install, maintain or operate upon its
Premises any vending machine without the written consent of
Landlord.
21. There shall not be used in any space, or in the public areas
of the Project either by Tenant or others, any hand trucks except
those equipped with rubber tires and side guards or such other
material handling equipment as Landlord may approve. Tenants
using hand trucks shall be required to use the freight elevator,
or such elevator as Landlord shall designate. No other vehicles
of any kind shall be brought by Tenant into or kept in or about
its Premises.
22. Each tenant shall store all its trash and garbage within the
interior of the Premises. Tenant shall not place in the trash
boxes or receptacles, any personal trash or any material that may
not or cannot be disposed of in the ordinary and customary manner
of removing and disposing of trash and garbage in the city,
without violation of any law or ordinance governing such
disposal. All trash, garbage and refuse disposal shall be made
only through entry-ways and elevators provided for such purposes
and at such times as Landlord shall designate. If the Building
has implemented a building-wide recycling program for tenants,
Tenant shall use good faith efforts to participate in said
program.
23. Canvassing, soliciting, distribution of handbills or any
other written material and peddling in the Building and the
Project are prohibited and each tenant shall cooperate to prevent
the same. No tenant shall make room-to-room solicitation of
business from other tenants in the Building or the Project,
without the consent of Landlord.
24. Landlord shall have the right exercisable without notice and
without liability to any tenant, to change the name and address
of the Building and the Project.
25. Landlord reserves the right to exclude or expel from the
Project any person who, in Landlord's Judgment is under the
influence of alcohol or drugs or who commits any act in violation
of any of these Rules and Regulations.
26. Without the prior written consent of Landlord, Tenant shall
not use the name of the Building or the Project or any photograph
or other likeness of the Building or the Project in connection
with, or in promoting or advertising, Tenant's business except
that Tenant may include the Building's or Project's name in
Tenant's address.
<PAGE>
27. Tenant shall comply with all safety, fire protection and
evacuation procedures and regulations established by Landlord or
any governmental agency.
28. Tenant assumes any and all responsibility for protecting its
Premises from theft, robbery and pilferage, which includes
keeping doors locked and other means of entry to the Premises
closed.
29. The requirements of Tenant will be attended to only upon
appropriate application at the office of the Building by an
authorized individual. Employees of Landlord shall not perform
any work or do anything outside of their regular duties unless
under special instructions from Landlord, and no employees of
Landlord will admit any person (tenant or otherwise) to any
office without specific instructions from Landlord.
30. Landlord reserves the right to designate the use of the
parking spaces on the Project. Tenant or Tenant's guests shall
park between designated parking lines only, and shall not occupy
two parking spaces with one car. Parking spaces shall be for
passenger vehicles only; no boats, trucks, trailers, recreational
vehicles or other types of vehicles may be parked in the parking
areas (except that trucks may be loaded and unloaded in
designated loading areas). Vehicles in violation of the above
shall be subject to tow-away, at vehicle owner's expense.
Vehicles parked on the Project overnight without prior written
consent of the Landlord shall be deemed abandoned and shall be
subject to tow-away at vehicle owner's expense. No tenant of the
Building shall park in visitor or reserved parking areas. Any
tenant found parking in such designated visitor or reserved
parking areas shall be subject to tow-away at vehicle owner's
expense. The parking areas shall not be used to provide car
wash, oil changes, detailing, automotive repair or other services
unless otherwise approved or furnished by Landlord.
31. No smoking of any kind shall be permitted anywhere within
the Building, including, without limitation, the Premises and
those areas immediately adjacent to the entrances and exits to
the Building, or any other area as Landlord elects. Smoking in
the Project is only permitted in smoking areas identified by
Landlord, which may be relocated from time to time.
32. If the Building furnishes common area conferences rooms for
tenant usage, Landlord shall have the right to control each
tenant's usage of the conference rooms, including limiting tenant
usage so that the rooms are equally available to all tenants in
the Building. Any common area amenities or facilities shall be
provided from time to time at Landlord's discretion.
33. Tenant shall not swap or exchange building keys or cardkeys
with other employees or tenants in the Building or the Project.
34. Tenant shall be responsible for the observance of all of the
foregoing Rules and Regulations by Tenant's employees, agents,
clients, customers, invitees and guests.
35. These Rules and Regulations are in addition to, and shall
not be construed to in any way modify, alter or amend, in whole
or in part, the terms, covenants, agreements and conditions of
any lease of any premises in the Project.
36. Landlord may waive any one or more of these Rules and
Regulations for the benefit of any particular tenant or tenants,
but no such waiver by Landlord shall be construed as a waiver of
such Rules and Regulations in favor of any other tenant or
tenants, nor prevent Landlord from thereafter enforcing any such
Rules and Regulations against any or all tenants of the Building.
<PAGE>
37. Landlord reserves the right to make such other and
reasonable rules and regulations as in its judgment may from time
to time be needed for safety and security, for care and
cleanliness of the Building and the Project and for the
preservation of good order therein. Tenant agrees to abide by
all such Rules and Regulations herein stated and any additional
rules and regulations which are adopted.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Lease
as of the day and the year first above written.
LANDLORD
Spieker Properties, L.P.,
a California limited partnership
By: Spieker Properties, Inc.,
a Maryland corporation,
its general partner
By: /s/ Peter H. Schnugg
--------------------
Its: Regional Vice President
Date: 5/7/98
TENANT
Penederm Incorporated
A Delaware Company
By: /s/ Terry Gutshall
------------------
Its: Vice President, Operations
<PAGE>
LEASE DATE: February 20, 1998
LANDLORD: Spieker Properties
a California Limited Partnership
TENANT: Penederm, Inc.
a Delaware Corporation
ADDENDUM #1 RENT:
Months 1-12 Base Rent $26,415/month
Months 13-60 The rent shall be increased annually on each
anniversary of the Commencement Date of this Lease to
an amount equal to $26,415.00 multiplied by a fraction,
the numerator of which is the Consumer Price Index, All
Urban Consumers, San Francisco, Oakland, and San Jose,
published by the United States Department of Labor,
Bureau of Labor Statistics (1982-84=100) as of the
month immediately preceding the current Adjustment
Date, and the denominator of which is the index as of
the month immediately preceding the Commencement Date.
There will be a minimum annual increase of 3% and a
maximum annual increase of 6%. Adjustment date is
defined as the anniversary date of the Commencement
Date.
ADDENDUM #2 TENANT IMPROVEMENTS:
Landlord, at its sole cost, shall provide the following tenant
improvements:
1. Furnish and install new building standard carpet over
pad to be selected by Tenant.
2. Furnish and install new carpet base, color to be
selected by Tenant.
3. New paint throughout the entire premises, color to be
selected by Tenant.
<PAGE>
TABLE OF CONTENTS
Page
Basic Lease Information
1. PREMISES 1
2. POSSESSION AND LEASE COMMENCEMENT 1
3. TERM 2
4. USE 2
5. RULES AND REGULATIONS 3
6. RENT 4
7. OPERATING EXPENSES 4
8. INSURANCE AND INDEMNIFICATION 7
9. WAIVER OF RIGHTS 9
10. LANDLORD'S REPAIRS AND MAINTENANCE 10
11. TENANT'S REPAIRS AND MAINTENANCE 10
12. ALTERATIONS 11
13. SIGNS 11
14. INSPECTION/POSTING NOTICES 12
15. UTILITIES 12
16. SUBORDINATION 12
17. FINANCIAL STATEMENTS 13
18. ESTOPPEL CERTIFICATE 13
19. SECURITY DEPOSIT 13
20. TENANT'S REMEDIES 14
21. ASSIGNMENT AND SUBLETTING 14
22. AUTHORITY OF TENANT 15
23. CONDEMNATION 15
24. CASUALTY DAMAGE 16
25. HOLDING OVER 18
26. DEFAULT 18
27. LIENS 20
28. SUBSTITUTION 20
29. TRANSFERS BY LANDLORD 21
30. RIGHT OF LANDLORD TO PERFORM TENANT'S COVENANTS 21
31. WAIVER 21
32. NOTICES 22
33. ATTORNEYS' FEES 22
34. SUCCESSORS AND ASSIGNS 22
35. FORCE MAJEURE 22
36. SURRENDER OF PREMISES 23
37. MISCELLANEOUS 23
38. ADDITIONAL PROVISIONS 25
SIGNATURES.......................................................
EXHIBITS:
EXHIBIT A PROPERTY DESCRIPTION
EXHIBIT B SITE PLAN
ADDENDUM 1 & 2
<PAGE>
EXHIBIT A
[FLOOR PLAN OF 373 VINTAGE PARK DRIVE]
<PAGE>
EXHIBIT B
[MAP OF AREA SURROUNDING 373 VINTAGE PARK]
91613.01.PA (1Y_T01!.DOC)
07/24/98 4:58 PM0
