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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark One)
[X] Quarterly Report Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
FOR THE QUARTERLY PERIOD ENDED SEPTEMBER 30, 1996
or
[ ] Transition Report Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
For the Transition Period From _____ to _____
COMMISSION FILE NUMBER
0-19986
CELL GENESYS, INC.
(Exact name of Registrant as specified in its charter)
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Delaware 94-3061375
(State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification Number)
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322 Lakeside Drive, Foster City, California 94404
(Address of principal executive offices and zip code)
(415) 358-9600
(Registrant's telephone number, including area code)
Indicate by check mark 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 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes X No
--- ---
As of October 31, 1996, the number of outstanding shares of the
registrant's Common Stock , $.001 par value, was 16,464,894.
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CELL GENESYS, INC.
TABLE OF CONTENTS
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Item Page
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PART I. FINANCIAL INFORMATION
1. Financial Statements:
a. Consolidated Balance Sheets -- September 30, 1996 and
December 31, 1995 3
b. Consolidated Statements of Operations -- Three and Nine
Months Ended September 30, 1996 and 1995 4
c. Consolidated Statements of Cash Flows -- Nine Months Ended
September 30, 1996 and 1995 5
d. Note to Consolidated Financial Statements 6
2. Management's Discussion and Analysis of Financial Condition and Results
of Operations 7-10
PART II. OTHER INFORMATION
1. Legal Proceedings 10
6. Exhibits and Reports on Form 8-K 11
SIGNATURE 12
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PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
CELL GENESYS, INC.
CONSOLIDATED BALANCE SHEETS
(In thousands)
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SEPTEMBER 30, DECEMBER 31,
1996 1995
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ASSETS (Unaudited)
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Current assets:
Cash and cash equivalents $ 9,585 $ 8,190
Short-term investments 68,345 73,739
Prepaid expenses and other current assets 922 1,176
----------------------------
Total current assets 78,852 83,105
Property and equipment at cost, net 8,662 10,032
Deposits and other assets 617 983
----------------------------
$ 88,131 $ 94,120
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LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 984 $ 357
Accrued compensation and benefits 1,068 1,165
Deferred revenue from related parties 2,374 2,104
Other accrued liabilities 1,989 975
Current portion of property and equipment
financing 2,723 2,406
----------------------------
Total current liabilities 9,138 7,007
Non-current portion of property and
equipment financing 6,479 7,720
Stockholders' equity:
Common stock 16 16
Additional paid-in capital 127,091 125,836
Accumulated deficit (54,593) (46,459)
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Total stockholders' equity 72,514 79,393
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$ 88,131 $ 94,120
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See accompanying note.
3
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CELL GENESYS, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
(Unaudited)
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THREE MONTHS NINE MONTHS
ENDED SEPTEMBER 30, ENDED SEPTEMBER 30,
1996 1995 1996 1995
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(In thousands except per share data)
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Revenue under collaborative agreements with
related parties $ 4,500 $ 4,095 $ 15,101 $ 7,200
Operating expenses:
Research and development 7,012 6,700 20,000 19,442
General and administrative 1,613 1,335 5,085 4,240
--------------------------------------------------------
Total operating expenses 8,625 8,035 25,085 23,682
Interest income 1,091 914 3,386 2,815
Interest expense (282) (304) (874) (782)
--------------------------------------------------------
Net loss $ (3,316) $ (3,330) $ (7,472) $(14,449)
========================================================
Net loss per share $ (0.20) $ (0.24) $ (0.46) $ (1.05)
========================================================
Weighted average shares outstanding 16,437 13,863 16,337 13,810
========================================================
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See accompanying note.
4
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CELL GENESYS, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
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NINE MONTHS ENDED SEPTEMBER 30,
1996 1995
------------------------
(In thousands)
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CASH FLOWS FROM OPERATING ACTIVITIES
Net loss $ (7,472) $(14,449)
Adjustments to reconcile net loss to net cash used by
operating activities:
Depreciation and amortization 2,750 2,588
Changes in certain assets and liabilities:
Prepaid expenses and other current assets 254 (1,613)
Deposits and other assets 366 90
Accounts payable 627 585
Accrued compensation and benefits (97) (187)
Deferred revenue from related parties 270 819
Other accrued liabilities 715 376
------------------------
Net cash used by operating activities (2,587) (11,791)
CASH FLOWS FROM INVESTING ACTIVITIES
Purchase of short-term investments (58,796) (42,823)
Maturities of short-term investments 19,782 18,000
Sales of short-term investments 43,746 19,646
Capital expenditures (167) (1,156)
------------------------
Net cash provided (used) by investing
activities 4,565 (6,333)
CASH FLOWS FROM FINANCING ACTIVITIES
Proceeds from issuance of long-term debt - 3,000
Payments under property and equipment financing
obligations (1,838) (1,214)
Proceeds from issuance of common stock 1,255 580
------------------------
Net cash provided (used) by financing
activities (583) 2,366
------------------------
Net increase (decrease) in cash and cash equivalents 1,395 (15,758)
Cash and cash equivalents at beginning of period 8,190 23,112
------------------------
Cash and cash equivalents at end of period $ 9,585 $ 7,354
========================
</TABLE>
See accompanying note.
5
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CELL GENESYS, INC.
NOTE TO CONSOLIDATED FINANCIAL STATEMENTS
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
BASIS OF PRESENTATION
The accompanying consolidated financial statements at September 30,
1996 and for the three and nine months ended September 30, 1996 and 1995 include
the accounts of Cell Genesys, Inc., including its wholly-owned subsidiary,
Abgenix, Inc. (collectively, the "Company"). These statements are unaudited, but
include all of the adjustments, consisting only of normal recurring adjustments,
which the management of the Company considers necessary for a fair presentation
of the Company's financial position at such dates and the operating results and
cash flows of those periods. The results of the interim period are not
necessarily indicative of the results for the entire year.
The consolidated financial statements should be read in conjunction
with the audited financial statements and notes thereto included in the
Company's Annual Report for the year ended December 31, 1995.
2. LITIGATION
In February 1994, the Company filed a complaint against GenPharm
International, Inc. ("GenPharm") alleging that GenPharm and its agents
misappropriated Cell Genesys' proprietary technology used to develop strains of
mice which produce human antibodies and that GenPharm unlawfully filed patent
applications covering this technology. The lawsuit has been set for trial in
late January 1997. In October 1996, GenPharm dismissed its cross complaint that
had been filed in March 1994.
In February 1996, GenPharm filed another suit against the Company in an
antitrust claim. In April 1996, GenPharm's antitrust claim was dismissed with
leave to amend. Subsequently, GenPharm filed an amended antitrust complaint.
Cell Genesys moved to dismiss the amended complaint and the court will hear the
motion in December 1996. In October 1996, GenPharm filed a patent infringement
suit against Abgenix Inc., the Company's wholly-owned subsidiary. The patent
suit alleges infringement under patents covering specific methods of producing
human monoclonal antibodies issued to GenPharm. The Company is vigorously
defending its positions in both of these actions. The ultimate outcome of these
actions cannot presently be predicted and no provision for liability has been
made in the accompanying consolidated financial statements.
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ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS
Outlook
Cell Genesys (the "Company") is focused on the development and
commercialization of gene therapies to treat major, life-threatening diseases,
including AIDS and cancer. The Company's objective is to commercialize both ex
vivo gene therapy with genetically engineered human immune cells and in vivo
gene therapies. Since its inception in 1988, the Company has funded its research
and development activities primarily through the sale of equity, corporate
partnerships and leaseline financings. The Company has been unprofitable since
its inception and has incurred a cumulative net loss of $54.6 million. In June
1996, Cell Genesys announced the establishment of Abgenix, Inc. ("Abgenix"), a
wholly-owned subsidiary which will focus exclusively on the development and
commercialization of the Company's human monoclonal antibodies for
pharmaceutical applications, including inflammation, autoimmune disorders, and
cancer. All partnership interests and intellectual property relating to the
Company's antibody business have been transferred to Abgenix as part of its
initial formation. The following discussion constitutes forward looking
statements insofar as it relates to progress in the Company's research and
development programs and clinical trials, product expectations, in-licensing
plans, expected cash expenditures and expense levels, and the adequacy of the
Company's available resources. Actual results could differ materially from the
statements made due to a number of factors, including those set forth in "Risk
Factors" below.
In the Company's lead gene therapy program, safety results for the
Company's Phase I clinical trial testing AIDS gene therapy indicated no
significant treatment-related safety problems. The Phase II portion of this
trial is under way to evaluate safety and efficacy of repeated treatments over
an extended period. During June 1996, the Company initiated patient enrollment
in a second Phase II clinical trial to evaluate patient-specific AIDS gene
therapy. In connection with this initial patient enrollment, the Company
received a $2 million milestone payment under its collaboration with Hoechst
Marion Roussel, Inc. ("HMR"). During 1997 the Company expects to complete
certain pilot studies of its AIDS gene therapy with the objective of observing
antiviral activity and optimizing the treatment regimen. The Company expects to
generate preliminary efficacy data from these trials during the next six months
and to report these findings starting in early 1997. In 1995, the Company
initiated preclinical research to develop gene therapies for specific cancers,
such as breast, colon and lung. In June 1996, the Company initiated product
development of its lead cancer gene therapy product candidate for colon and
other specific cancers. Based on successful preclinical studies, the Company
could initiate human clinical testing for its initial cancer gene therapy
product candidate by mid-1997. The Company also has ongoing research programs in
stem cell gene therapy, universal donor cells and other gene delivery
technologies. The Company believes that such programs may provide opportunities
for collaborative arrangements with third parties that could also provide
additional funding to the Company.
In the Company's human monoclonal antibody program (now being pursued
through Abgenix), the Company has developed transgenic technology to create
strains of mice capable of producing fully human monoclonal antibodies. The
Company has created strains of mice which now contain the majority of human
antibody genes and could produce multiple product candidates. The Company
believes that fully human antibodies should avoid the allergic reactions seen
with antibodies containing mouse proteins, which should make them better suited
to long-term therapy and could provide a marketing advantage. In 1995, the
Company initiated preclinical studies of a human antibody to Interleukin-8
(IL-8), which potentially could be used as a treatment to inhibit excess
inflammation in certain diseases such as psoriasis, adult respiratory disease
syndrome (ARDS), rheumatoid arthritis and reperfusion injury associated with
heart attack or stroke. Based on progress of preclinical studies, Abgenix could
initiate human clinical trials for this antibody product candidate during the
second half of 1997.
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The Company's net cash expenditures for 1996 are not expected to exceed
approximately $10 million and the Company intends to manage toward this net cash
expenditure target. The Company may from time to time evaluate opportunities to
acquire or in-license other potential products and technologies. Expenses
associated with in-licensing such products may constitute unbudgeted expenses.
Results of Operations
Revenue increased from $4.1 million and $7.2 million for the three and
nine months ended September 30, 1995 to $4.5 million and $15.1 million for the
three and nine months ended September 30, 1996, respectively. The increase
reflects revenues from the collaboration with HMR which was entered into in
October 1995 for the Company's AIDS gene therapy program, including a $2.0
million milestone payment earned during the second quarter. Under the
collaboration, HMR is committed to fund research and development for the
Company's AIDS gene therapy program initially for two years. Other revenues
resulted from the Company's joint venture ("Xenotech") with JT Immunotech USA
Inc. ("JT Immunotech") in its human monoclonal antibody program.
Research and development expenses increased from $6.7 million and $19.4
million for the three and nine months ended September 30, 1995 to $7.0 million
and $20.0 million for the three and nine months ended September 30, 1996,
respectively. The increase was due to costs incurred in the Company's second
Phase II clinical trial to evaluate patient-specific AIDS gene therapy.
Enrollment for this trial began in June 1996. The Company expects its research
and development expenditures, including expansion of facilities, to continue to
increase in future periods to support additional product development activities.
The rate of increase depends on a number of factors including progress in
research and development, especially clinical trials. Research and development
expenses represented approximately 80% of total expenses for each of the three
and nine month periods.
General and administrative expenses increased from $1.3 million and
$4.2 million for the three and nine months ended September 30, 1995 to $1.6
million and $5.1 million for the three and nine months ended September 30, 1996,
respectively. The increase reflects additional administrative staff and outside
services required to support expanded research and development programs. The
Company expects these expenses to continue to increase as the research and
development programs expand.
Interest income increased from $914,000 and $2.8 million for the three
and nine months ended September 30, 1995 to $1.1 million and $3.4 million for
the three and nine months ended September 30, 1996, respectively. The increase
was due to $20.0 million received by Cell Genesys during the fourth quarter of
1995 in connection with the equity investment made by HMR, partially offset by a
decline in average interest rates obtained on investments. Interest expense was
largely unchanged for the three and nine month periods ended September 30, 1995
and 1996.
The Company's net loss decreased from $14.4 million to $7.5 million for
the nine months ended September 30, 1995 and 1996, respectively. The increase in
revenues as a result of the Company's collaboration with HMR for AIDS gene
therapy exceeded the increase in operating expenses in the first nine months of
1996 as compared to 1995. Losses are expected to continue and are likely to
increase as operating expenses rise, particularly as the Company incurs expenses
related to expanded manufacturing and human testing of its potential products.
At December 31, 1995, the Company had available net operating loss and
research credit carryforwards for federal income tax purposes of approximately
$36.1 million and $2.0 million, respectively, which expire in the years 2003
through 2010.
Liquidity and Capital Resources
The Company has financed its operations primarily through the sale of
equity securities, funding under collaborative arrangements and equipment
financing. From inception through September 30, 1996, the Company
8
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has received $124.9 million in net proceeds from equity financing and $58.2
million under collaborative agreements, and utilized $15.7 million in property
and equipment financing.
At September 30, 1996, the Company's cash, cash equivalents and
short-term investments totaled $77.9 million, compared to $81.9 million at
December 31, 1995. The decrease was primarily due to cash used in operating
activities and payments of property and equipment financing obligations.
The Company expects its cash requirements to increase significantly in
the future. The Company's capital requirements depend on numerous factors,
including the progress of its research and development programs; preclinical and
clinical trials; clinical and commercial scale manufacturing requirements; the
attraction and maintenance of collaborative partners; the acquisition of new
products or technologies; and the cost of litigation, patent interference
proceedings or other legal proceedings or their resolution. The Company is
currently a party to litigation in the human monoclonal antibody area, as
described in Item 1 "Legal Proceedings".
Under its current collaborations, the Company is responsible for
funding a portion of its research and development efforts. Substantial capital
may be required to carry out additional product development and to commercialize
products under the current collaborations and the Company's self-funded efforts.
The Company believes that its available cash, cash equivalents and
short-term investments at September 30, 1996, together with payments to be
received under the Company's collaborative arrangements with HMR and Xenotech,
and $2.5 million in equipment financing available for capital equipment
purchases will be sufficient to meet the Company's operating expenses and
capital requirements at least through 1998. Thereafter, the Company will require
substantial additional funds. Because of the Company's significant long-term
cash requirements, it will seek to raise additional capital if conditions in the
Company and the public equity markets are favorable, even if the Company does
not have an immediate need for additional cash at that time.
Risk Factors
There are significant risks associated with the Company's plans and
goals, including but not limited to the success of the Company's research and
development programs; the lengthy, expensive and uncertain regulatory approval
process; uncertainties and costs associated with obtaining third party licenses,
obtaining patent protection, protecting trade secrets, enforcing intellectual
property rights important to the Company's business and avoiding infringement of
others' intellectual property; competitive products; and the availability of
capital to fund the Company's operations and capital requirements. Litigation,
which could result in substantial cost to the Company, may also be necessary to
enforce any patents issued to the Company or to determine the scope and validity
of other parties' proprietary rights. The Company is currently involved in such
litigation with GenPharm International, Inc. ("GenPharm"), as described in Item
1 "Legal Proceedings". Some or all of these factors may affect the Company's
goals to file INDs, advance product candidates through the clinical trial
process and to commercialize products. Even if the Company's goals are fully
achieved, the Company does not anticipate commercialization of any product for
several years.
Because of the novelty of the Company's gene therapy technology,
clinical trials are more difficult than for products based on more traditional
technologies. In addition, a variety of factors could hinder or delay progress
in clinical trials of the Company's products or require their discontinuance,
including results of ongoing preclinical studies by the Company or others,
technical or manufacturing difficulties, clinical trial results for the
Company's or competing products, intellectual property disputes with third
parties, and/or delays relating to the review process by the FDA. Although
preliminary results of the Company's Phase I clinical testing of AIDS gene
therapy reported to date have shown no significant treatment-related safety
problems, there can be no assurance that this therapy will be tolerated over an
extended period of time or that the clinical efficacy of this therapy will be
demonstrated.
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The Company believes that a human antibody product such as that being
developed through its subsidiary, Abgenix, could be clinically superior to
products containing mouse protein, and that it could have marketing advantages
over such other products. However, until human testing has taken place, it is
not certain that human antibody products will demonstrate these advantages.
Countervailing marketing factors, such as relative price, undesirable side
effects, and/or relative marketing expertise, may serve to offset or outweigh
these advantages. In addition, as previously disclosed, the Company is involved
in litigation with GenPharm related to intellectual property rights and patents
issued to GenPharm involving transgenic technology used to produce human
monoclonal antibodies. Litigation can be unpredictable and costly. An adverse
outcome of this or any other litigation could have a material adverse impact on
the Company's business. The complaints are disclosed in more detail in the
Company's Annual Report on Form 10-K and in Item 1 "Legal Proceedings" below.
There is no assurance that opportunities for in-licensing products or
for third party collaborations will be available to the Company on acceptable
terms. Finding such opportunities, as well as a variety of other factors, such
as progress in the Company's research and development programs (including
clinical trials), receipt of anticipated contract revenues (some of which are
dependent on milestones), competitive factors, and the costs associated with
prosecuting and defending the Company's intellectual property rights, may affect
the Company's ability to manage to its targeted net cash expenditures in 1996,
and also may affect the adequacy of the Company's resources to fund operations
and capital requirements at least through 1998.
Failure to achieve the Company's goals could have a material adverse
impact on the Company's results of operations and financial condition and its
ability to raise additional capital. Stockholders and potential investors should
carefully consider the risks associated with the Company and should be aware
that these risks may negatively impact the Company's stock price.
PART II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
In February 1996, GenPharm International, Inc. ("GenPharm") filed an
antitrust claim against the Company in the United States District Court,
Northern District of California, alleging that the Company violated the Sherman
Antitrust Act when it filed its trade secret misappropriation action against
GenPharm in February 1994. In April 1996, GenPharm's antitrust claim against the
Company was dismissed with leave to amend. In August 1996, GenPharm filed an
amended antitrust complaint against the Company in the United States District
Court, Northern District Court of California. In October 1996, Cell Genesys
filed a motion to dismiss the antitrust case. Also in October 1996, GenPharm
dismissed its March 1994 cross complaint against Cell Genesys alleging abuse of
process, unfair competition and interference with prospective advantage.
In a related development in October 1996, GenPharm filed a patent
infringement suit against Abgenix, Inc., the Company's subsidiary. The patent
suit alleges infringement under patents covering specific methods of producing
human monoclonal antibodies issued to GenPharm. The complaint was filed in the
United States District Court for the Northern District of California.
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ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
a) Exhibits
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10.40 Amendment No. 1 dated June 7, 1996 to Vintage Park Research and Development
Lease
10.41 Lease Agreement dated July 31, 1996 between Abgenix, Inc. and John Arrillaga
and Richard T. Peery
27.1 Financial Data Schedule
99 Consolidating Financial Statements
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b) Reports on Form 8-K
There were no reports on Form 8-K filed for the
quarter ended September 30, 1996.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
Date: November 14, 1996 CELL GENESYS, INC.
/s/ KATHLEEN SEREDA GLAUB
-------------------------------------------------
Kathleen Sereda Glaub
Senior Vice President and Chief Financial Officer
(On behalf of the Registrant and as Registrant's
Principal Financial Officer)
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EXHIBIT INDEX
10.40 Amendment No. 1 dated June 7, 1996 to Vintage Park Research and
Development Lease
10.41 Lease Agreement dated July 31, 1996 between Abgenix, Inc. and John
Arrillaga and Richard T. Peery
27.1 Financial Data Schedule
99 Consolidating Financial Statements
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AMENDMENT NO. 1 TO
VINTAGE PARK RESEARCH AND DEVELOPMENT LEASE
THIS AMENDMENT NO. 1 TO VINTAGE PARK RESEARCH AND DEVELOPMENT LEASE is
made and entered into as of June 7, 1996 by and between WCB SIXTEEN LIMITED
PARTNERSHIP, a Delaware limited partnership ("Landlord"), and CELL GENESYS,
INC., a Delaware corporation ("Tenant").
Landlord's predecessor-in-interest, Vintage Park Associates, and Tenant
entered into that certain Vintage Park Research and Development Lease ("Lease")
dated November 1, 1994. Landlord and Tenant now desire to amend the Lease to
expand the Premises and therefore do hereby agree as follows:
1. Amendment of Basic Lease Information. The items below from the
Basic Lease Information of the Lease are hereby amended to read as follows:
Premises and Building: 342 Lakeside Drive, approximately 32,494 sq. ft. as
depicted on Exhibit A to Amendment No. 1
322 Lakeside Drive, approximately 23,280 sq. ft.,
depicted on Exhibit A-2
324 Lakeside Drive, approximately 22,479 sq. ft.,
depicted on Exhibit A-3
366 Lakeside Drive, approximately 6,337 sq. ft.,
depicted on Exhibit A-4
TOTAL: Approximately 84,590 sq. ft.
Term Commencement: February 1, 1995, except April 1, 1995 for 366 "A"
Lakeside Drive and July 1, 1996 for remainder of
342 Lakeside Drive
Base Rent:
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February 1, 1996 through
June 30, 1996: $64,693.25
July 1, 1996 through
January 31, 1997: $93,028.25
February 1, 1997 through
January 31, 1998: $95,841.00
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First Option Period:
February 1, 1998 through
January 31, 2000: $105,737.50
February 1, 2000 through
January 31, 2002: $109,967.00
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Tenant's Percentage Share:
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342 Lakeside Drive Through June 30, 1996:
12.79%; from July 1, 1996:
100%
322 Lakeside Drive: 55.15%
324 Lakeside Drive: 100.00%
366 Lakeside Drive: 46.50%
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Landlord's Address for Notices:
WCB Sixteen Limited Partnership
c/o WCB Properties
393 Vintage Park Drive, Suite 200
Foster City, CA 94404
2. Expansion of Premises. Commencing July 1, 1996, the
remaining space in the building commonly known as 342 Lakeside Drive,
consisting of approximately 28,335 rentable square feet, shall be added to and
become part of the premises in its then "as is" condition; provided, however,
that the then-existing improvements in the Premises shall comply with local and
state building standards regulations and with Americans with Disabilities Act
requirements and provided that all HVAC, electrical and plumbing systems within
and serving the Premises, together with a roof, shall be in good condition and
repair.
3. Termination of Right of First Offer. Tenant's right of
first offer as set forth in paragraph 23 of the Addendum to the Lease is hereby
terminated with respect to the 333 Lakeside Drive Building.
4. Ratification. Landlord and Tenant hereby ratify and
confirm the terms of the Lease as amended in paragraphs 1 through 3 above.
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Amendment as
of the date first above written.
TENANT: LANDLORD:
CELL GENESYS, INC., WCB SIXTEEN LIMITED PARTNERSHIP
a Delaware corporation a Delaware limited partnership
By: WCB SIXTEEN, INC., a
By: /s/ Kathleen Sereda Glaub Delaware corporation,
------------------------------- general partner
Its: SVP & CFO
--------------------------
By: /s/ Wallace G. Muspit
-------------------------------
Its: V.P.
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BLDG: Ardenwood I
OWNER: 500
PROP: 141
UNIT: 1
TENANT: 14101
LEASE AGREEMENT
THIS LEASE, made this 31st day of July, 1996 between JOHN ARRILLAGA,
Trustee, or his Successor Trustee, UTA dated 7/20/77 (ARRILLAGA FAMILY TRUST)
as amended, and RICHARD T. PEERY, Trustee, or his Successor Trustee, UTA dated
7/20/77 (RICHARD T. PEERY SEPARATE PROPERTY TRUST) as amended, ______________
______________________________________________________________________________
______________________________________________________, hereinafter called
Landlord and ABGENIX, INC., a Delaware corporation, __________________________
_____________________________________________________ hereinafter called Tenant.
WITNESSETH:
LANDLORD HEREBY LEASES TO TENANT AND TENANT HEREBY HIRES AND TAKES FROM
LANDLORD THOSE CERTAIN PREMISES (THE "PREMISES") OUTLINED IN RED ON EXHIBIT
"A", ATTACHED HERETO AND INCORPORATED HEREIN BY THIS REFERENCE THERETO MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
All of that certain 52,416 (plus or minus sign) square foot, one-story building
located at 7601 Dumbarton Circle, Fremont, California 94555. Said Premises is
more particularly shown within the area outlined in Red on Exhibit A attached
hereto. The Premises shall include the entire parcel, of which the Building is a
part, including exclusive parking appurtenant thereto, is shown within the area
outlined in Green on Exhibit A attached. The interior of the building leased
hereunder shall be constructed by Tenant as set forth in the Construction Letter
of even date herewith. The improved interior configuration is shown in Red on
Exhibit B to be attached hereto.
*The word "Premises" as used throughout this lease is hereby defined to
include the nonexclusive use of landscaped areas, sidewalks and driveways in
front of or adjacent to the Premises, and the nonexclusive use of the area
directly underneath or over such sidewalks and driveways. The gross leasable
area of the building shall be measured from outside of exterior walls to
outside of exterior walls, and shall include any atriums, covered entrances or
egresses and covered loading areas.
Said letting and hiring is upon and subject to the terms, covenants and
conditions hereinafter set forth and Tenant covenants as a material part of the
consideration for this Lease to perform and observe each and all of said terms,
covenants and conditions. This Lease is made upon the conditions of such
performance and observance.
1. USE Tenant shall use the Premises only in conformance with applicable
governmental laws, regulations, rules and ordinances for the purpose of general
office, light manufacturing, research and development, (including
biotechnological research and associated animal research) and storage and other
uses as may be necessary or appropriate for Tenant to conduct Tenant's
business, provided that such uses shall be in accordance with all applicable
governmental laws and ordinances, and for no other purpose without Landlord's
prior written consent. Tenant shall not do or permit to be done in or about the
Premises nor bring or keep or permit to be brought or kept in or about the
Premises anything which is prohibited by or will in any way increase the
existing rate of (or otherwise affect) fire or any insurance covering the
Premises or any part thereof, or any of its contents, or will cause a
cancellation of any insurance covering the Premises or any part thereof, or any
of its contents. Tenant shall not do or permit to be done anything in, on or
about the Premises which will in any way obstruct or interfere with the rights
of other tenants or occupants of the Premises or neighboring premises or injure
or annoy them, or use or allow the Premises to be used for any improper,
immoral, unlawful or objectionable purpose, nor shall Tenant cause, maintain or
permit any nuisance in, on or about the Premises. No sale by auction shall be
permitted on the Premises. Tenant shall not place any loads upon the floors,
walls, or ceiling which endanger the structure, or place any harmful fluids or
other materials in the drainage system of the building, or overload existing
electrical or other mechanical systems. No waste materials or refuse shall be
dumped upon or permitted to remain upon any part of the Premises or outside of
the building in which the Premises are a part, except in trash containers
placed inside exterior enclosures designated by Landlord for that purpose or
inside of the building proper where designated by Landlord. No materials,
supplies, equipment, finished products or semi-finished products, raw materials
or articles of any nature shall be stored upon or permitted to remain outside
the Premises. Tenant shall not place anything or allow anything to be placed
near the glass of any window, door partition or wall which may appear unsightly
from outside the Premises. No loudspeaker or other device, system or apparatus
which can be heard outside the Premises shall be used in or at the Premises
without the prior written consent of Landlord. Tenant shall not commit or
suffer to be committed any waste in or upon the Premises. Tenant shall
indemnify, defend and hold Landlord harmless against any loss, expense, damage,
reasonable attorneys' fees, or liability arising out of failure of Tenant to
comply with any applicable law relating to Tenant's use of the Premises or for
which Tenant is otherwise obligated to comply under the terms of this Lease.
Tenant shall comply with any covenant, condition, or restriction ("CC&R's")
affecting the Premises. The provisions of this paragraph are for the benefit of
Landlord only and shall not be construed to be for the benefit of any tenant or
occupant of the Premises.
2. TERM*
A. The term of this Lease shall be for a period of TEN (10) years (unless
sooner terminated as hereinafter provided) and, subject to Paragraphs 2B and 3,
shall commence on the 1st day of February, 1997 and end on the 31st day of
January, 2007.
B. Possession of the Premises shall be deemed tendered and the term of the
Lease shall commence on the earlier of February 1, 1997, or
(b) Upon the occupancy of the Premises by any of Tenant's operating
personnel.
*It is agreed in the event said Lease commences on a date other than the first
day of the month the term of the Lease will be extended to account for the
number of days in the partial month. The Basic Rent during the resulting
partial month will be pro-rated (for the number of days in the partial month)
at the Basic Rent rate scheduled for the projected commencement date as shown
in Paragraph 39.
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4. RENT
A. Basic Rent. Tenant agrees to pay to Landlord at such place as Landlord
may designate without deduction, offset, prior notice, or demand, and Landlord
agrees to accept as Basic Rent for the leased Premises the total sum of NINE
MILLION SIX HUNDRED TWENTY THREE THOUSAND FIVE HUNDRED SEVENTY SEVEN AND 60/100
Dollars ($9,623,577.60) in lawful money of the United States of America, payable
as follows:
See Paragraph 39 for Basic Rent Schedule
B. Time for Payment. Full monthly rent is due in advance on the first
day of each calendar month. In the event that the term of this Lease commences
on a date other than the first day of a calendar month, on the date of
commencement of the term hereof Tenant shall pay to Landlord as rent for the
period from such date of commencement to the first day of the next succeeding
calendar month that proportion of the monthly rent hereunder which the number
of days between such date of commencement and the first day of the next
succeeding calendar month bears to thirty (30). In the event that the term of
this Lease for any reason ends on a date other than the last day of a calendar
month, on the first day of the last calendar month of the term hereof Tenant
shall pay to Landlord as rent for the period from said first day of said last
calendar month to and including the last day of the term hereof that proportion
of the monthly rent hereunder which the number of days between said first day of
said last calendar month and the last day of the term hereof bears to thirty
(30).
C. Late Charge. Notwithstanding any other provision of this Lease, if
Tenant is in default in the payment of rental as set forth in this Paragraph 4
when due, or any part thereof, Tenant agrees to pay Landlord, in addition to
the delinquent rental due, a late charge for each rental payment in default ten
(10) days. Said late charge shall equal ten percent (10%) of each rental
payment so in default.
D. Additional Rent. Beginning with the commencement date of the term of
this Lease, Tenant shall pay to Landlord or to Landlord's designated agent in
addition to the Basic Rent and as Additional Rent the following:
(a) All Taxes relating to the Premises as set forth in
Paragraph 9, and
(b) All insurance premiums relating to the Premises, as set forth in
Paragraph 12, and
(c) All charges, costs and expenses, which Tenant is required to pay
hereunder, together with all interest and penalties, costs and expenses
including reasonable attorneys' fees and legal expenses, that may accrue
thereto in the event of Tenant's failure to pay such amounts, and all damages,
reasonable costs and expenses which Landlord may incur by reason of default of
Tenant or failure on Tenant's part to comply with the terms of this Lease. In
the event of nonpayment by Tenant of Additional Rent, Landlord shall have all
the rights and remedies with respect thereto as Landlord has for nonpayment of
rent and
(d) All prorated costs and expenses related to the Ardenwood Property
Owner's Association as set forth in Paragraph 45.
The Additional Rent due hereunder shall be paid to Landlord or Landlord's
agent (i) within five business days for taxes and insurance and within thirty
(30) days for all other Additional Rent items after presentation of invoice from
Landlord or Landlord's agent setting forth such Additional Rent and/or (ii) at
the option of Landlord, Tenant shall pay to Landlord monthly, in advance,
Tenant's prorata share of an amount estimated by Landlord to be Landlord's
approximate average monthly expenditure for such Additional Rent items, which
estimated amount shall be reconciled within 120 days of the end of each calendar
year or more frequently if Landlord elects to do so at Landlord's sole and
absolute discretion as compared to Landlord's actual expenditure for said
Additional Rent items, with Tenant paying to Landlord, upon demand, any amount
of actual expenses expended by Landlord in excess of said estimated amount, or
Landlord refunding to Tenant (providing Tenant is not in default in the
performance of any of the terms, covenants and conditions of this Lease) any
amount of estimated payments made by Tenant in excess of Landlord's actual
expenditures for said Additional Rent Items. Within thirty (30) days after
receipt of Landlord's reconciliation, Tenant shall have the right, at Tenant's
sole expense, to audit, at a mutually convenient time at Landlord's office,
Landlord's records relating to the foregoing expenses. Such audit must be
conducted by Tenant or an independent nationally recognized accounting firm that
is not being compensated by Tenant or other third party on a contingency fee
basis. If such audit reveals that Landlord has overcharged Tenant, the amount
overcharged shall be credited to Tenant's account within thirty (30) days after
the audit is concluded.
E. Fixed Management Fee. Beginning with the Commencement Date of the
Term of this Lease, Tenant shall pay to Landlord, in addition to the Basic Rent
and Additional Rent, a fixed monthly management fee ("Management Fee") equal to
1-1/2% of the Basic Rent due for each month during the Lease Term.
The respective obligations of Landlord and Tenant under this paragraph
shall survive the expiration or other termination of the term of this Lease,
and if the term hereof shall expire or shall otherwise terminate on a day other
than the last day of a calendar year, the actual Additional Rent incurred for
the calendar year in which the term hereof expires or otherwise terminates
shall be determined and settled on the basis of the statement of actual
Additional Rent for such calendar year and shall be prorated in the proportion
which the number of days in such calendar year preceding such expiration or
termination bears to 365.
F. Place of Payment of Rent and Additional Rent. All Basic Rent
hereunder and all payments hereunder for Additional Rent shall be paid to
Landlord at the office of Landlord at Peery/Arrillaga, File 1504, Box 60000, San
Francisco, CA 94160 or to such other person or to such other place as Landlord
may from time to time designate in writing.
G. Security Deposit. Concurrently with Tenant's execution of this Lease,
Tenant shall deposit with Landlord the sum of ONE HUNDRED EIGHTY THREE THOUSAND
FOUR HUNDRED FIFTY SIX AND NO/100 Dollars ($183,456.00). Said sum shall be held
by Landlord as a Security Deposit for the faithful performance by Tenant of all
of the terms, covenants, and conditions of this Lease to be kept and performed
by Tenant during the term hereof. If Tenant defaults with respect to any
provision of this Lease, including, but not limited to, the provisions relating
to the payment of rent and any of the monetary sums due herewith, Landlord may
(but shall not be required to) use, apply or retain all or any part of this
Security Deposit for the payment of any other amount which Landlord may spend
by reason of Tenant's default or to compensate Landlord for
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any other loss or damage which Landlord may suffer by reason of Tenant's
default. If any portion of said Deposit is so used or applied, Tenant shall,
within ten (10) days after written demand therefor, deposit cash with Landlord
in the amount sufficient to restore the Security Deposit to its original
amount. Tenant's failure to do so shall be a material breach of this Lease.
Landlord shall not be required to keep this Security Deposit separate from its
general funds, and Tenant shall not be entitled to interest on such Deposit. If
Tenant fully and faithfully performs every provision of this Lease to be
performed by it, the Security Deposit or any balance thereof shall be returned
to Tenant (or at Landlord's option, to the last assignee of Tenant's interest
hereunder) at the expiration of the Lease term and after Tenant has vacated the
Premises. In the event of termination of Landlord's interest in this Lease,
Landlord shall transfer said Deposit to Landlord's successor in interest
whereupon Tenant agrees to release Landlord from liability for the return of
such Deposit or the accounting therefor.
5. ACCEPTANCE AND SURRENDER OF PREMISES By entry hereunder, Tenant accepts the
Premises as being in good and sanitary order, condition and repair and accepts
the building and improvements included in the Premises in their present
condition and without representation or warranty by Landlord as to the
condition of such building or as to the use or occupancy which may be made
thereof. Any exceptions to the foregoing must be by written agreement executed
by Landlord and Tenant. Tenant agrees on the last day of the Lease term, or on
the sooner termination of this Lease, to surrender the Premises promptly and
peaceably to Landlord in good condition and repair (damage by Acts of God,
fire, and other causes for which Tenant does not have the obligation to repair
under the other provisions of this Lease, and normal wear and tear excepted),
with all interior walls painted, or cleaned so that they appear freshly
painted, and repaired or replaced, if damaged; all floors cleaned and waxed;
all carpets cleaned and shampooed; all broken, marred or nonconforming
acoustical ceiling tiles replaced; all windows washed; the air conditioning
and heating systems serviced by a reputable and licensed service firm and in
good operating condition and repair; the plumbing and electrical systems and
lighting in good order and repair, including replacement of any burned out or
broken light bulbs or ballasts; the lawn and shrubs in good condition including
the replacement of any dead or damaged plantings; the sidewalk, driveways and
parking areas in good order, condition and repair; together with all
alterations, additions, and improvements which may have been made in, to, or on
the Premises (except moveable trade fixtures installed at the expense of
Tenant) except that Tenant shall ascertain from Landlord within thirty (30)
days before the end of the term of this Lease whether Landlord desires to have
the Premises or any part or parts thereof restored to their condition and
configuration as when the Premises were delivered to Tenant and if Landlord
shall so desire, then Tenant shall restore said Premises or such part or parts
thereof before the end of this Lease at Tenant's sole cost and expense.
Notwithstanding the above, Tenant shall not be required to remove such interior
improvements initially installed by Tenant and shown on Exhibit B to this
Lease. Tenant, on or before the end of the term or sooner termination of this
Lease, shall remove all of Tenant's personal property and trade fixtures from
the Premises, and all property not so removed on or before the end of the term
or sooner termination of this lease shall be deemed abandoned by Tenant and
title to same shall thereupon pass to Landlord without compensation to Tenant.
Landlord may, upon termination of this Lease, remove all moveable furniture and
equipment so abandoned by Tenant, at Tenant's sole cost, and repair any damage
caused by such removal at Tenant's sole cost. If the Premises be not
surrendered at the end of the term or sooner termination of this Lease, Tenant
shall indemnify Landlord against loss or liability resulting from the delay by
Tenant in so surrendering the Premises including, without limitation, any
claims made by any succeeding tenant founded on such delay. Nothing contained
herein shall be construed as an extension of the term hereof or as a consent of
Landlord to any holding over by Tenant. The voluntary or other surrender of
this lease or the Premises by Tenant or a mutual cancellation of this Lease
shall not work as a merger and, at the option of Landlord, shall either
terminate all or any existing subleases or subtenancies or operate as an
assignment to Landlord of all or any such subleases or subtenancies.
6. ALTERATIONS AND ADDITIONS Tenant shall not make, or suffer to be made, any
alteration or addition to the Premises, or any part thereof, without the
written consent of Landlord first had and obtained by Tenant (such consent not
to be unreasonably withheld), but at the cost of Tenant, and any addition to,
or alteration of, the Premises, except moveable furniture and trade fixtures,
shall at once become a part of the Premises and upon termination of this Lease,
belong to Landlord. Landlord reserves the right to approve all contractors and
mechanics proposed by Tenant to make such alterations and additions which
approval shall not be unreasonably withheld. Tenant shall retain title to all
moveable furniture and trade fixtures placed in the Premises. All heating,
lighting, electrical, airconditioning, floor to ceiling partitioning, drapery,
carpeting, and floor installations made by Tenant, together with all property
that has become an integral part of the Premises, shall not be deemed trade
fixtures. Tenant agrees that it will not proceed to make such alteration or
additions, without having obtained consent from Landlord to do so, and until
five (5) days from the receipt of such consent. In order that Landlord may post
appropriate notices to avoid any liability to contractors or material suppliers
for payment for Tenant's improvements. Tenant will at all times permit such
notices to be posted and to remain posted until the completion of work. Tenant
shall, if required by Landlord, secure at Tenant's own cost and expense, a
completion and lien indemnity bond, satisfactory to Landlord, for such work.
Tenant further covenants and agrees that any mechanic's lien filed against the
Premises for work claimed to have been done for, or materials claimed to have
been furnished to Tenant, will be discharged by Tenant, by bond or otherwise,
within ten (10) days after the notice of filing thereof, at the cost and
expense of Tenant. Any exceptions to the foregoing must be made in writing and
executed by both Landlord and Tenant.
7. TENANT MAINTENANCE Tenant shall, at its sole cost and expense, keep and
maintain the Premises (including appurtenances) and every part thereof in a
high standard of maintenance and repair or replacement, and in good and
sanitary condition. Tenant's maintenance and repair responsibilities herein
referred to include, but are not limited to, janitorization, all windows
(interior and exterior), window frames, plate glass and glazing (destroyed by
accident or act of third parties), truck doors, plumbing systems (such as water
and drain lines, sinks, toilets, faucets, drains, showers and water fountains),
electrical systems (such as panels, conduits, outlets, lighting fixtures,
lamps, bulbs, tubes and ballasts), heating and airconditioning systems (such as
compressors, fans, air handlers, ducts, mixing boxes, thermostats, time clocks,
boilers, heaters, supply and return grills), structural elements and exterior
surfaces of the building, store fronts, roofs, downspouts, all interior
improvements within the premises including but not limited to wall coverings,
window coverings, carpet, floor coverings, partitioning, ceilings, doors (both
interior and exterior), including closing mechanisms, latches, locks, skylights
(if any), automatic fire extinguishing systems, and elevators and all other
interior improvements of any nature whatsoever, and all exterior improvements
including but not limited to landscaping, sidewalks, driveways, parking lots
including striping and sealing, sprinkler systems, lighting, ponds, fountains,
waterways, and drains. Tenant agrees to provide carpet shields under all
rolling chairs or to otherwise be responsible for wear and tear of the carpet
caused by such rolling chairs if such wear and tear exceeds that caused by
normal foot traffic in surrounding areas. Areas of excessive wear shall be
replaced at Tenant's sole expense upon Lease termination. Tenant hereby waives
all rights under, and benefits of, Subsection 1 of Section 1932 and Section
1941 and 1942 of the California Civil Code and under any similar law, statute
or ordinance now or hereafter in effect. In the event any of the above
maintenance responsibilities apply to any other tenant(s) of Landlord where
there is common usage with other tenant(s), such maintenance responsibilities
and charges shall be allocated to the leased Premises by square footage or
other equitable basis as calculated and determined by Landlord.
8. UTILITIES Tenant shall pay promptly, as the same become due, all charges for
water, gas, electricity, telephone, telex and other electronic communication
service, sewer service, waste pick-up and any other utilities, materials or
services furnished directly to or used by Tenant on or about the Premises
during the term of this Lease, including, without limitation, any temporary or
permanent utility surcharge or other exactions whether or not hereinafter
imposed. In the event the above charges apply to any other tenant(s) of
Landlord where there is common usage with other tenant(s), such charges shall
be allocated to the leased Premises by square footage or other equitable basis
as calculated and determined by Landlord.
Landlord shall not be liable for and Tenant shall not be entitled to any
abatement or reduction of rent by reason of any interruption of failure of
utility services to the Premises when such interruption or failure is caused by
accident, breakage, repair, strikes, lockouts, or other labor disturbances or
labor disputes of any nature, or by any other cause, similar or dissimilar,
beyond the reasonable control of Landlord.
9. TAXES
A. As Additional Rent and in accordance with Paragraph 4D of this Lease,
Tenant shall pay to Landlord, or if Landlord so directs, directly to the Tax
Collector, all Real Property Taxes relating to the Premises accruing with
respect to the Premises during the Term of this Lease and the Extended Term (if
any). In the event the Premises leased hereunder consist of only a portion of
the entire tax parcel, Tenant shall pay to Landlord as they become due Tenant's
proportionate share of such real estate taxes allocated to the leased Premises
by square footage or other reasonable basis as calculated and determined by
Landlord. If the tax billing pertains 100% to the leased Premises, and Landlord
chooses to have Tenant pay said real estate taxes directly to the Tax
Collector, then in such event it shall be the responsibility of Tenant to
obtain the tax and assessment bills and pay, prior to delinquency, the
applicable real property taxes and assessments pertaining to the leased
Premises, and failure to receive a bill for taxes and/or assessments shall not
provide a basis for cancellation or nonresponsibility for payment of penalties
for nonpayment or late payment by Tenant. The term "Real Property Taxes", as
used herein, shall mean (1) all taxes, assessments, levies and other charges of
any kind or nature whatsoever, general and special, foreseen and unforeseen
(including all installments of principal and interest required to pay any
general or special assessments for public improvements and any increases
resulting from reassessments caused by any change in ownership of the Premises)
now or hereafter imposed by any governmental or quasi-governmental authority or
special district having the direct or indirect power to tax or levy
assessments, which are levied or assessed against, or with respect to the
value, occupancy or use of, all or any portion of the Premises (as now
constructed or as may at any time hereafter be constructed, altered, or
otherwise changed) or Landlord's interest therein; any improvements located
within the Premises (regardless of ownership); the fixtures, equipment and
other property of Landlord, real or personal, that are an integral part of and
located in the Premises; or parking areas, public utilities, or energy within
the Premises; (ii) all charges, levies or fees imposed by reason of
environmental regulation or other governmental control of the Premises,
excluding any taxes related to on-sire Hazardous Material contamination which
Tenant did not cause or contribute to and (iii) all costs and fees (including
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reasonable attorneys' fees) incurred by Landlord in reasonably contesting any
Real Property Tax and in negotiating with public authorities as to any Real
Property Tax. If at any time during the term of this Lease the taxation or
assessment of the Premises prevailing as of the commencement date of this Lease
shall be altered so that in lieu of or in addition to any Real Property Tax
described above there shall be levied, assessed or imposed (whether by reason
of a change in the method of taxation or assessment, creation of a new tax or
charge, or any other cause) an alternate or additional tax or charge (i) on the
value, use or occupancy of the Premises or Landlord's interest therein or (ii)
on or measured by the gross receipts, income or rentals from the Premises, on
Landlord's business of leasing the Premises, or computed in any manner with
respect to the operation of the Premises, then any such tax or charge, however
designated, shall be included within the meaning of the term "Real Property
Taxes" for purposes of this Lease. If any Real Property Tax is based upon
property or rents unrelated to the Premises, then only that part of such Real
Property Tax that is fairly allocable to the Premises shall be included within
the meaning of the term "Real Property Taxes". Notwithstanding the foregoing,
the term "Real Property Taxes" shall not include estate, inheritance, gift or
franchise taxes of Landlord or the federal or state net income tax imposed on
Landlord's income from all sources or other personal taxes measured by the net
income (as distinguished from gross income) of Landlord from the leasing of the
Premises either separately or together with other property. See Paragraph 50.
B. Taxes on Tenant's Property. Tenant shall be liable for and shall
pay ten days before delinquency, taxes levied against any personal property or
trade fixtures placed by Tenant in or about the Premises. If any such taxes on
Tenant's personal property or trade fixtures are levied against Landlord or
Landlord's property or if the assessed value of the Premises is increased by
the inclusion therein of a value placed upon such personal property or trade
fixtures of Tenant and if Landlord, after written notice to Tenant, pays the
taxes based on such increased assessment, which Landlord shall have the right
to do regardless of the validity thereof, but only under proper protest if
requested by Tenant, Tenant shall within ten (10) days after demand, as the
case may be, repay to Landlord the taxes so levied against Landlord, or the
proportion of such taxes resulting from such increase in the assessment;
provided that in any such event Tenant shall have the right, in the name of
Landlord and with Landlord's full cooperation, to bring suit in any court of
competent jurisdiction to recover the amount of such taxes so paid under
protest, and any amount so recovered shall belong to Tenant.
10. LIABILITY INSURANCE Tenant, at Tenant's expense, agrees to keep in force
during the term of this Lease a policy of commercial general liability
insurance with combined single limit coverage of not less than Two Million
Dollars ($2,000,000) for bodily injury and property damage occurring in, on or
about the Premises, including parking and landscaped areas. Such insurance
shall be primary and noncontributory as respects any insurance carried by
Landlord. The policy or policies effecting such insurance shall name Landlord
as additional insureds, and shall insure any liability of Landlord, contingent
or otherwise, as respects acts or omissions of Tenant, its agents, employees
or invitees or otherwise by any conduct or transactions of any of said persons
in or about or concerning the Premises, including any failure of Tenant to
observe or perform any of its obligations hereunder; shall be issued by an
insurance company admitted to transact business in the State of California; and
shall provide that the insurance effected thereby shall not be canceled, except
upon thirty (30) days' prior written notice to Landlord. A certificate of
insurance of said policy shall be delivered to Landlord. If, during the term of
this Lease, in the considered opinion of Landlord's Lender, insurance advisor,
or counsel, the amount of insurance described in this Paragraph 10 is not
adequate, Tenant agrees to increase said coverage to such reasonable amount as
Landlord's Lender, insurance advisor, or counsel shall deem adequate.
11. TENANT'S PERSONAL PROPERTY INSURANCE AND WORKMAN'S COMPENSATION INSURANCE
Tenant shall maintain a policy or policies of fire and property damage
insurance in "all risk" form with a sprinkler leakage endorsement insuring the
personal property, inventory, trade fixtures, and leasehold improvements within
the leased Premises for the full replacement value thereof. The proceeds from
any of such policies shall be used for the repair or replacement of such items
so insured.
Tenant shall also maintain a policy or policies of workman's compensation
insurance and any other employee benefit insurance sufficient to comply with
all laws.
12. PROPERTY INSURANCE Landlord shall purchase and keep in force, and as
Additional Rent and in accordance with Paragraph 4D of this Lease, Tenant shall
pay to Landlord (or Landlord's agent if so directed by Landlord) Tenant's
proportionate share (allocated to the leased Premises by square footage or
other equitable basis as calculated and determined by Landlord) of the
deductibles on insurance claims and the cost of, policy or policies of
insurance covering loss or damage to the Premises (excluding routine
maintenance and repairs and incidental damage or destruction caused by
accidents or vandalism for which Tenant is responsible under Paragraph 7) in
the amount of the full replacement value thereof, providing protection against
those perils included within the classification of "all risks" insurance and
flood and/or earthquake insurance, if available, plus a policy of rental income
insurance in the amount of one hundred (100%) percent of twelve (12) months
Basic Rent, plus sums paid as Additional Rent. If such insurance cost is
increased due to Tenant's use of the Premises, Tenant agrees to pay to Landlord
the full cost of such increase. Tenant shall have no interest in nor any right
to the proceeds of any insurance procured by Landlord for the Premises.
Landlord and Tenant do each hereby respectively release the other, to the
extent of insurance coverage of the releasing party, from any liability for
loss or damage caused by fire or any of the extended coverage casualties
included in the releasing party's insurance policies, irrespective of the cause
of such fire or casualty; provided, however, that if the insurance policy of
either releasing party prohibits such waiver, then this waiver shall not take
effect until consent to such waiver is obtained. If such waiver is so
prohibited, the insured party affected shall promptly notify the other party
thereof.
13. INDEMNIFICATION Landlord shall not be liable to Tenant and Tenant hereby
waives all claims against Landlord for any injury to or death of any person or
damage to or destruction of property in or about the Premises by or from any
cause whatsoever, including, without limitation, gas, fire, oil, electricity or
leakage of any character from the roof, walls, basement or other portion of the
Premises but excluding, however, the willful misconduct or negligence of
Landlord, its agents, servants, employees, invitees, or contractors of which
negligence Landlord has knowledge and reasonable time to correct. Except as to
injury to persons or damage to property to the extent arising from the willful
misconduct or the negligence of Landlord, its agents, servants, employees,
invitees, or contractors, Tenant shall hold Landlord harmless from and defend
Landlord against any and all expenses, including reasonable attorneys' fees, in
connection therewith, arising out of any injury to or death of any person or
damage to or destruction of property occurring in, on or about the Premises,
or any part thereof, from any cause whatsoever occurring during the Term of
this Lease.
14. COMPLIANCE Tenant, at its sole cost and expense, shall promptly comply
with all laws, statutes, ordinances and governmental rules, regulations or
requirements now or hereafter in effect; with the requirements of any board of
fire underwriters or other similar body now or hereafter constituted; and with
any direction or occupancy certificate issued pursuant to law by any public
officer; provided, however, that no such failure shall be deemed a breach of
the provisions if Tenant, immediately upon notification, commences to remedy or
rectify said failure. The judgment of any court of competent jurisdiction or
the admission of Tenant in any action against Tenant, whether Landlord be a
party thereto or not, that Tenant has violated any such law, statute, ordinance
or governmental rule, regulation, requirement, direction or provision, shall be
conclusive of that fact as between Landlord and Tenant. Tenant shall, at its
sole cost and expense, comply with any and all requirements pertaining to said
Premises, of any insurance organization or company, necessary for the
maintenance of reasonable fire and public liability insurance covering
requirements pertaining to said Premises, of any insurance organization or
company, necessary for the maintenance of reasonable fire and public liability
insurance covering the Premises.
15. LIENS Tenant shall keep the Premises free from any liens arising out of
any work performed, materials furnished or obligation incurred by Tenant. In
the event that Tenant shall not, within ten (10) days following notice of the
imposition of such lien, cause the same to be released of record. Landlord
shall have, in addition to all other remedies provided herein and by law, the
right (after two days written notice), but no obligation, to cause the same to
be released by such means as it shall deem proper, including payment of the
claim giving rise to such lien. All sums paid by Landlord for such purpose, and
all expenses incurred by it in connection therewith, shall be payable to
Landlord by Tenant on demand with interest at the prime rate of interest as
quoted by the Bank of America.
16. ASSIGNMENT AND SUBLETTING Tenant shall not assign, transfer, or
hypothecate the leasehold estate under this Lease, or any interest therein, and
shall not sublet the Premises, or any part thereof, or any right or privilege
appurtenant thereto, or suffer any other person or entity to occupy or use the
Premises, or any portion thereof, without, in each case, the prior written
consent of Landlord which consent will not be unreasonably withheld. As a
condition for granting this consent to any assignment, transfer, or subletting,
Landlord may require that Tenant agrees to pay to Landlord, as additional rent,
twenty-five percent (25%) of all rents or additional consideration received by
Tenant from its assignees, transferees, or subtenants in excess of the rent
payable by Tenant to Landlord hereunder, provided, however, that before sharing
such excess rent, Tenant shall first be entitled to recover from such excess
rent (i) the amount of any reasonable leasing commissions paid by Tenant to
third parties not affiliated with Tenant and (ii) Tenant's unamortized costs,
excluding costs of interest (if any), to construct interior improvements in the
area being sublet for said subtenant(s). Tenant shall, by thirty (30) days
written notice, advise Landlord of its intent to assign or transfer Tenant's
interest in the Lease or sublet the Premises or any portion thereof for any
part of the term hereof. Within thirty (30) days after receipt of said written
notice, Landlord may, in its sole discretion, elect to terminate this Lease as
to the portion of the Premises described in Tenant's notice on the date
specified in Tenant's notice by giving written notice of such election to
terminate (provided Tenant intends to sublet 50% or more of the Premises). If no
such notice to terminate is given to Tenant within said thirty (30) day period,
Tenant may proceed to locate an acceptable sublessee, assignee, or other
transferee for presentment to Landlord for Landlord's approval, all in
accordance with the terms, covenants, and conditions of this paragraph 16. If
Tenant intends to sublet fifty percent or more of the Premises and Landlord
elects to terminate this Lease, this Lease shall be terminated on the date
specified in Tenant's notice. If, however, this Lease shall terminate pursuant
to the foregoing with respect to less than all the Premises, the rent, as
defined and reserved hereinabove shall be adjusted on a pro rata basis to the
number of square feet retained by Tenant, and this Lease as so amended shall
continue in full force and effect. In the event Tenant is allowed to assign,
transfer or sublet the whole or any part of the Premises, with the prior
written
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consent of Landlord, no assignee, transferee or subtenant shall assign or
transfer this Lease, either in whole or in part, or sublet the whole or any part
of the Premises, without also having obtained the prior written consent of
Landlord which consent shall not be unreasonably withheld. A consent of Landlord
to one assignment, transfer, hypothecation, subletting, occupation or use by any
other person shall not release Tenant from any of Tenant's obligations hereunder
or be deemed to be a consent to any subsequent similar or dissimilar assignment,
transfer, hypothecation, subletting, occupation or use by any other person. Any
such assignment, transfer, hypothecation, subletting, occupation or use without
such consent shall be void and shall constitute a breach of this Lease by Tenant
and shall, at the option of Landlord exercised by written notice to Tenant,
terminate this Lease. The leasehold estate under this Lease shall not, nor shall
any interest therein, be assignable for any purpose by operation of law without
the written consent of Landlord which consent shall not be unreasonably
withheld. As a condition to its consent, Landlord may require Tenant to pay all
expenses in connection with the assignment, and Landlord may require Tenant's
assignee or transferee (or other assignees or transferees) to assume in writing
all of the obligations under this Lease and for Tenant to remain liable to
Landlord under the Lease. See Paragraph 42
17. SUBORDINATION AND MORTGAGES In the event Landlord's title or leasehold
interest is now or hereafter encumbered by a deed of trust, upon the interest
of Landlord in the land and buildings in which the demised Premises are
located, to secure a loan from a lender (hereinafter referred to as "Lender") to
Landlord, Tenant shall, at the request of Landlord or Lender, execute in
writing an agreement (in form reasonably acceptable to Tenant) subordinating
its rights under this Lease to the lien of such deed of trust, or, if so
requested, agreeing that the lien of Lender's deed of trust shall be or remain
subject and subordinate to the rights of Tenant under this Lease.
Notwithstanding any such subordination, Tenant's possession under this Lease
shall not be disturbed if Tenant is not in default and so long as Tenant shall
pay all rent and observe and perform all of the provisions set forth in this
Lease and any subordination agreement shall reflect the agreement of the Lender
to the same. See Paragraph 51
18. ENTRY BY LANDLORD Landlord reserves, and shall at all reasonable times
after at least 24 hours notice (except in emergencies) have, the right to
enter the Premises to inspect them; to perform any services to be provided by
Landlord hereunder; to make repairs or provide any services to a contiguous
tenant(s); to submit the Premises to prospective purchasers, mortgagers or
tenants; to post notices of nonresponsibility; and to alter, improve or repair
the Premises or other parts of the building, all without abatement of rent, and
may erect scaffolding and other necessary structures in or through the Premises
where reasonably required by the character of the work to be performed;
provided, however that the business of Tenant shall be interfered with to the
least extent that is reasonably practical. Any entry to the Premises by
Landlord for the purposes provided for herein shall not under any circumstances
be construed or deemed to be a forcible or unlawful entry into or a detainer of
the Premises or an eviction, actual or constructive, of Tenant from the
Premises or any portion thereof.
19. BANKRUPTCY AND DEFAULT The commencement of a bankruptcy action or
liquidation action or reorganization action or insolvency action or an
assignment of or by Tenant for the benefit of creditors, or any similar action
undertaken by Tenant, or the insolvency of Tenant, shall, at Landlord's option,
constitute a breach of this Lease by Tenant. If the trustee or receiver
appointed to serve during a bankruptcy, liquidation, reorganization, insolvency
or similar action elects to reject Tenant's unexpired Lease, the trustee or
receiver shall notify Landlord in writing of its election within thirty (30)
days after an order for relief in a liquidation action or within thirty (30)
days after the commencement of any action.
Within thirty (30) days after court approval of the assumption of this
Lease, the trustee or receiver shall cure (or provide adequate assurance to the
reasonable satisfaction of Landlord that the trustee or receiver shall cure)
any and all previous defaults under the unexpired Lease and shall compensate
Landlord for all actual pecuniary loss and shall provide adequate assurance of
future performance under said Lease to the reasonable satisfaction of Landlord.
Adequate assurance of future performance, as used herein, includes, but shall
not be limited to: (i) assurance of source and payment of rent, and other
consideration due under this Lease; (ii) assurance that the assumption or
assignment of this Lease will not breach substantially any provision, such as
radius, location, use, or exclusivity provision, in any agreement relating to
the above described Premises.
Nothing contained in this section shall affect the existing right of
Landlord to refuse to accept an assignment upon commencement of or in
connection with a bankruptcy, liquidation, reorganization or insolvency action
or an assignment of Tenant for the benefit of creditors or other similar act.
Nothing contained in this Lease shall be construed as giving or granting or
creating an equity in the demised Premises to Tenant. In no event shall the
leasehold estate under this Lease, or any interest therein, be assigned by
voluntary or involuntary bankruptcy proceeding without the prior written
consent of Landlord. In no event shall this Lease or any rights or privileges
hereunder be an asset of Tenant under any bankruptcy, insolvency or
reorganization proceedings.
The failure to perform or honor any covenant, condition or
representation made under this Lease shall constitute a default hereunder by
Tenant upon expiration of the appropriate grace period hereinafter provided.
Tenant shall have a period of five (5) business days from the date of written
notice from Landlord within which to cure any default in the payment of rental
or adjustment thereto. Tenant shall have a period of thirty (30) days from the
date of written notice from Landlord within which to cure any other default
under this Lease; provided, however, that if the nature of Tenant's failure is
such that more than thirty (30) days is reasonably required to cure the same,
Tenant shall not be in default so long as Tenant commences performance within
such thirty (30) day period and thereafter prosecutes the same to completion.
Upon an uncured default of this Lease by Tenant, Landlord shall have the
following rights and remedies in addition to any other rights or remedies
available to Landlord at law or in equity;
(a) The rights and remedies provided for by California Civil Code
Section 1951.2, including but not limited to, recovery of the worth at the time
of award of the amount by which the unpaid rent for the balance of the term
after the time of award exceeds the amount of rental loss for the same period
that Tenant proves could be reasonably avoided, as computed pursuant to
subsection (b) of said Section 1951.2. Any proof by Tenant under subparagraphs
(2) and (3) of Section 1951.2 of the California Civil Code of the amount of
rental loss that could be reasonably avoided shall be made in the following
manner: Landlord and Tenant shall each select a licensed real estate broker in
the business of renting property of the same type and use as the Premises and
in the same geographic vicinity. Such two real estate brokers shall select a
third licensed real estate broker, and the three licensed real estate brokers
so selected shall determine the amount of the rental loss that could be
reasonably avoided from the balance of the term of this Lease after the time of
award. The decision of the majority of said licensed real estate brokers shall
be final and binding upon the parties hereto.
(b) The rights and remedies provided by California Civil Code
Section which allows Landlord to continue the Lease in effect and to enforce
all of its rights and remedies under this Lease, including the right to recover
rent as it becomes due, for so long as Landlord does not terminate Tenant's
right to possession; acts of maintenance or preservation, efforts to relet the
Premises, or the appointment of a receiver upon Landlord's initiative to
protect its interest under this Lease shall not constitute a termination of
Tenant's right to possession.
(c) The right to terminate this Lease by giving notice to Tenant in
accordance with applicable law.
(d) To the extent permitted by law, the right and power to enter
the Premises and remove therefrom all persons and property, to store such
property in a public warehouse or elsewhere at the cost of and for the account
of Tenant, and to sell such property and apply such proceeds therefrom pursuant
to applicable California law. Landlord may from time to time sublet the
Premises or any part thereof for such term or terms (which may extend beyond
the term of this Lease) and at such rent and such other terms as Landlord in
its reasonable sole discretion may deem advisable, with the right to make
alterations and repairs to the Premises. Upon each subletting, (i) Tenant shall
be immediately liable to pay Landlord, in addition to indebtedness other than
rent due hereunder, the reasonable cost of such subletting, including, but not
limited to, reasonable attorneys' fees, and any real estate commissions
actually paid, and the cost of such reasonable alterations and repairs incurred
by Landlord and the amount, if any, by which the rent hereunder for the period
of such subletting (to the extent such period does not exceed the term hereof)
exceeds the amount to be paid as rent for the Premises for such period or (ii)
at the option of Landlord, rents received from such subletting shall be applied
first to payment of indebtedness other than rent due hereunder from Tenant to
Landlord; second, to the payment of any costs of such subletting and of such
alterations and repairs; third to payment of rent due and unpaid hereunder; and
the residue, if any, shall be held by Landlord and applied in payment of future
rent as the same becomes due hereunder. If Tenant has been credited with any
rent to be received by such subletting under option (i) and such rent shall not
be promptly paid to Landlord by the subtenant(s), or if such rentals received
from such subletting under option (ii) during any month be less than that to be
paid during that month by Tenant hereunder, Tenant shall pay any such
deficiency to Landlord. Such deficiency shall be calculated and paid monthly.
No taking possession of the Premises by Landlord shall be construed as an
election on its part to terminate this Lease unless a written notice of such
intention be given to Tenant. Notwithstanding any such subletting without
termination, Landlord may at any time hereafter elect to terminate this Lease
for such previous breach.
(e) The right to have a receiver appointed for Tenant upon
application by Landlord, to take possession of the Premises and to apply any
rental collected from the Premises and to exercise all other rights and
remedies granted to Landlord pursuant to subparagraph d above.
20. ABANDONMENT Tenant shall not vacate or abandon the Premises at any time
during the term of this Lease (except that Tenant may vacate so long as it pays
rent, provides a security service to check the Premises during normal business
hours form Monday to Friday, and otherwise performs its obligations hereunder)
and if Tenant shall abandon, vacate or surrender said Premises, or be
dispossessed by the process of law, or otherwise, any personal property
belonging to Tenant and left on the Premises shall be deemed to be abandoned, at
the option of Landlord, except such property as may be mortgaged to Landlord.
21. DESTRUCTION In the event the Premises are destroyed in whole or in part
from any cause, except for routine maintenance and repairs and incidental
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damage and destruction caused from vandalism and accidents for which Tenant is
responsible under Paragraph 7. Landlord may, at its option:
(a) Rebuild or restore the Premises to their condition prior to the
damage or destruction, or
(b) Terminate this Lease (providing that the Premises is damaged
to the extent of 33 1/3% of the replacement cost).
If Landlord does not give Tenant notice in writing within thirty (30)
days from the destruction of the Premises of its election to either rebuild and
restore them, or to terminate this Lease, Landlord shall be deemed to have
elected to rebuild or restore them, in which event Landlord agrees, at its
expense, promptly to rebuild or restore the Premises to their condition prior to
the damage or destruction. Tenant shall be entitled to a reduction in rent
while such repair is being made in the proportion that the area of the Premises
rendered untenantable by such damage bears to the total area of the Premises.
If it is reasonably estimated by Landlord that the rebuilding or restoration
will exceed 180 days or if Landlord does not complete the rebuilding or
restoration within one hundred eighty (180) days following the date of
destruction (such period of time to be extended for delays caused by the fault
or neglect of Tenant or because of subsequent Acts of God, acts of public
agencies, labor disputes, strikes, fires, freight embargoes, rainy or stormy
weather, inability to obtain materials, supplies or fuels, acts of contractors
or subcontractors, or delay of the contractors or subcontractors due to such
causes or other contingencies beyond the control of Landlord), then Tenant
shall have the right to terminate this Lease by giving fifteen (15) days prior
written notice to Landlord. Notwithstanding anything herein to the contrary,
Landlord's obligation to rebuild or restore shall be limited to the building
and interior improvements constructed by Landlord as they existed as of the
commencement date of the Lease and shall not include restoration of Tenant's
trade fixtures, equipment, merchandise, or any improvements, alterations or
additions made by Tenant to the Premises, which Tenant shall forthwith replace
or fully repair at Tenant's sole cost and expense provided this Lease is not
cancelled according to the provisions above.
Unless this Lease is terminated pursuant to the foregoing provisions,
this Lease shall remain in full force and effect. Tenant hereby expressly
waives the provisions of Section 1932, Subdivision 2, in Section 1933,
Subdivision 4 of the California Civil Code.
In the event that the building in which the Premises are situated is
damaged or destroyed to the extent of not less than 33 1/3% of the replacement
cost thereof, Landlord may elect to terminate this Lease, whether the Premises
be injured or not.
22. EMINENT DOMAIN If all or any part of the Premises shall be taken by any
public or quasi-public authority under the power of eminent domain or
conveyance in lieu thereof, this Lease shall terminate as to any portion of the
Premises so taken or conveyed on the date when title vests in the condemnor, and
Landlord shall be entitled to any and all payment, income, rent, award, or any
interest therein whatsoever which may be paid or made in connection with such
taking or conveyance, and Tenant shall have no claim against Landlord or
otherwise for the value of any unexpired term of this Lease. Notwithstanding
the foregoing paragraph, any compensation specifically awarded Tenant for loss
of business, Tenant's personal property, moving cost or loss of goodwill, shall
be and remain the property of Tenant.
If any action or proceeding is commenced for such taking of the
Premises or any material part thereof, then Landlord shall have the right to
terminate this Lease by giving Tenant written notice thereof within sixty (60)
days of the date of receipt of said written advice, or commencement of said
action or proceeding, or taking conveyance, which termination shall take place
as of the first to occur of the last day of the calendar month next following
the month in which such notice is given or the date on which title to the
Premises shall vest in the condemnor.
In the event of such a partial taking or conveyance of the Premises, if
the portion of the Premises taken or conveyed is so substantial that the Tenant
can no longer reasonably conduct its business, Tenant shall have the privilege
of terminating this Lease within sixty (60) days from the date of such taking
or conveyance, upon written notice to Landlord of its intention so to do, and
upon giving of such notice this Lease shall terminate on the last day of the
calendar month next following the month in which such notice is given, upon
payment by Tenant of the rent from the date of such taking or conveyance to the
date of termination.
If a portion of the Premises be taken by condemnation or conveyance in
lieu thereof and neither Landlord nor Tenant shall terminate this Lease as
provided herein, this Lease shall continue in full force and effect as to the
part of the Premises not so taken or conveyed, and the rent herein shall be
apportioned as of the date of such taking or conveyance so that thereafter the
rent to be paid by Tenant shall be in the ratio that the area of the portion of
the Premises not so taken or conveyed bears to the total area of the Premises
prior to such taking.
23. SALE OR CONVEYANCE BY LANDLORD In the event of a sale or conveyance of the
Premises or any interest therein, by any owner of the reversion then
constituting Landlord, the transferor shall thereby be released as to such
interest transferred from any further liability upon any of the terms, covenants
or conditions (express or implied) herein contained in favor of Tenant, and in
such event, insofar as such transfer is concerned, Tenant agrees to look solely
to the responsibility of the successor in interest of such transferor in and to
the Premises and this Lease. This Lease shall not be affected by any such sale
or conveyance, and Tenant agrees to attorn to the successor in interest of such
transferor.
24. ATTORNMENT TO LENDER OR THIRD PARTY In the event the interest of Landlord
in the land and buildings in which the leased Premises are located (whether
such interest of Landlord is a fee title interest or a leasehold interest) is
encumbered by deed of trust, and such interest is acquired by the lender or any
third party through judicial foreclosure or by exercise of a power of sale at
private trustee's foreclosure sale, Tenant hereby agrees to attorn to the
purchaser at any such foreclosure sale and to recognize such purchaser as the
Landlord under this Lease. In the event the lien of the deed of trust securing
the loan from a Lender to Landlord is prior and paramount to the Lease, this
Lease shall nonetheless continue in full force and effect for the remainder of
the unexpired term hereof, at the same rental herein reserved and upon all the
other terms, conditions and covenants herein contained.
25. HOLDING OVER Any holding over by Tenant after expiration or other
termination of the term of this Lease with the written consent of Landlord
delivered to Tenant shall not constitute a renewal or extension of the Lease or
give Tenant any rights in or to the leased Premises except as expressly
provided in this Lease. Any holding over after the expiration or other
termination of the term of this Lease, with the consent of Landlord, shall be
construed to be a tenancy from month to month, on the same terms and conditions
herein specified insofar as applicable except that the monthly Basic Rent shall
be increased to an amount equal to one hundred fifty (150%) percent of the
monthly Basic Rent required during the last month of the Lease term.
26. CERTIFICATE OF ESTOPPEL Tenant shall at any time upon not less than ten
(10) days prior written notice from Landlord execute, acknowledge and deliver
to Landlord a statement in writing (i) certifying that this Lease is unmodified
and in full force and effect (or, if modified, stating the nature of such
modification and certifying that this Lease, as so modified, is in full force
and effect) and the date to which the rent and other charges are paid in
advance, if any, and (ii) acknowledging that there are not, to Tenant's
knowledge, any uncured defaults on the part of Landlord hereunder, or
specifying such defaults, if any, are claimed. Any such statement may be
conclusively relied upon by any prospective purchaser or encumbrancer of the
Premises. Tenant's failure to deliver such statement within such time shall be
conclusive upon Tenant that this Lease is in full force and effect, without
modification except as may be represented by Landlord; that there are no
uncured defaults in Landlord's performance, and that not more than one month's
rent has been paid in advance.
27. CONSTRUCTION CHANGES It is understood that the description of the Premises
and the location of ductwork, plumbing and other facilities therein are subject
to such minor changes as Landlord or Landlord's architect determines to be
desirable in the course of construction of the Premises, and no such changes
shall affect this Lease or entitle Tenant to any reduction of rent hereunder
or result in any liability of Landlord to Tenant. Landlord does not guarantee
the accuracy of any drawings supplied to Tenant and verification of the
accuracy of such drawings rests with Tenant.
28. RIGHT OF LANDLORD TO PERFORM All terms, covenants and conditions of this
Lease to be performed or observed by Tenant shall be performed or observed by
Tenant at Tenant's sole cost and expense and without any reduction of rent. If
Tenant shall fail to pay any sum of money, or other rent, required to be paid
by it hereunder or shall fail to perform any other term or covenant hereunder
on its part to be performed, and such failure shall continue for five (5) days
after written notice thereof by Landlord, Landlord, without waiving or releasing
Tenant from any obligation of Tenant hereunder, may, but shall not be obliged
to, make any such payment or perform any such other term or covenant on
Tenant's part to be performed. All sums so paid by Landlord and all necessary
costs of such performance by Landlord together with interest thereon at the rate
of the prime rate of interest per annum as quoted by the Bank of America from
the date of such payment or performance by Landlord, shall be paid (and Tenant
covenants to make such payment) to Landlord within five (5) business days after
demand by Landlord, and Landlord shall have (in addition to any other right or
remedy of Landlord) the same rights and remedies in the event of nonpayment by
Tenant as in the case of failure by Tenant in the payment of rent hereunder.
29. ATTORNEYS' FEES
A. In the event that either Landlord or Tenant should bring suit for
the possession of the Premises, for the recovery of any sum due under this
Lease, or because of the breach of any provision of this Lease, or for any other
relief against the other party hereunder, then all costs and expenses, including
reasonable attorneys' fees
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incurred by the prevailing party therein shall be paid by the other party,
which obligation on the part of the other party shall be deemed to have accrued
on the date of the commencement of such action and shall be enforceable whether
or not the action is prosecuted to judgment.
B. Should Landlord be named as a defendant in any suit brought
against Tenant in connection with or arising out of Tenant's occupancy
hereunder, Tenant shall pay to Landlord its costs and expenses incurred in such
suit, including a reasonable attorney's fee.
30. WAIVER The waiver by either party of the other party's failure to
perform or observe any term, covenant or condition herein contained to be
performed or observed by such waiving party shall not be deemed to be a waiver
of such term, covenant or condition or of any subsequent failure of the party
failing to perform or observe the same or any other such term, covenant or
condition therein contained, and no custom or practice which may develop
between the parties hereto during the term hereof shall be deemed a waiver of,
or in any way affect, the right of either party to insist upon performance and
observance by the other party in strict accordance with the terms hereof.
31. NOTICES All notices, demands, requests, advices or designations which
may be or are required to be given by either party to the other hereunder shall
be in writing. All notices, demands, requests, advices or designations by
Landlord to Tenant shall be sufficiently given, made or delivered if personally
served on Tenant by United States certified or registered mail, postage prepaid
or by a reputable same day or overnight courier service, addressed to Tenant at
the Premises Attn: President. All notices, demands, requests, advices or
designations by Tenant to Landlord shall be sent by United States certified or
registered mail, postage prepaid, addressed to Landlord at its offices at
Peery/Arrillaga, 2560 Mission College Blvd., Suite 101, Santa Clara, CA 95054.
Each notice, request, demand, advice or designation referred to in this
paragraph shall be deemed received on the date of receipt or refusal to accept
receipt of the mailing thereof in the manner herein provided, as the case may
be. Either party shall have the right, upon ten (10) days written notice to the
other, to change the address as noted herein.
32. EXAMINATION OF LEASE Submission of this instrument for examination or
signature by Tenant does not constitute a reservation of or option for a lease,
and this instrument is not effective as a lease or otherwise until its
execution and delivery by both Landlord and Tenant.
33. DEFAULT BY LANDLORD Landlord shall not be in default unless Landlord
fails to perform obligations required of Landlord within a reasonable time, but
in no event earlier than (30) days after written notice by Tenant to Landlord
and to the holder of any first mortgage or deed of trust covering the Premises
whose name and address shall have heretofore been furnished to Tenant in
writing, specifying wherein Landlord has failed to perform such obligations;
provided, however, that if the nature of Landlord's obligations is such that
more than thirty (30) days are required for performance, then Landlord shall
not be in default if Landlord commences performance within such thirty (30)
day period and thereafter diligently prosecutes the same to completion.
34. CORPORATE AUTHORITY If Tenant is a corporation (or a partnership),
each individual executing this Lease on behalf of said corporation (or
partnership) represents and warrants that he is duly authorized to execute and
deliver this Lease on behalf of said corporation (or partnership) in accordance
with the by-laws of said corporation (or partnership in accordance with the
partnership agreement) and that this Lease is binding upon said corporation (or
partnership) in accordance with its terms. If Tenant is a corporation, Tenant
shall, within thirty (30) days after execution of this Lease, deliver to
Landlord a certified copy of the resolution of the Board of Directors of said
corporation authorizing or ratifying the execution of this Lease.
35.
36. LIMITATION OF LIABILITY In consideration of the benefits accruing
hereunder, Tenant and all successors and assigns covenant and agree that, in
the event of any actual or alleged failure, breach or default hereunder by
Landlord:
(a) the sole and exclusive remedy shall be against
Landlord's interest in the Premises leased herein;
(b) no partner of Landlord shall be sued or named as a
party in any suit or action (except as may be necessary to secure jurisdiction
of the partnership);
(c) no service of process shall be made against any partner
of Landlord (except as may be necessary to secure jurisdiction of the
partnership);
(d) no partner of Landlord shall be required to answer or
otherwise plead to any service of process;
(e) no judgment will be taken against any partner of
Landlord;
(f) any judgment taken against any partner of Landlord may
be vacated and set aside at any time without hearing;
(g) no writ of execution will ever be levied against the
assets of any partner of Landlord;
(h) these covenants and agreements are enforceable both by
Landlord and also by any partner of Landlord.
Tenant agrees that each of the foregoing covenants and agreements shall
be applicable to any covenant or agreement either expressly contained in this
Lease or imposed by statute or at common law.
37. SIGNS No sign, placard, picture, advertisement, name or notice shall
be inscribed, displayed or printed or affixed on or to any part of the outside
of the Premises or any exterior windows of the Premises without the written
consent of Landlord first had and obtained and Landlord shall have the right to
remove any such sign, placard, picture, advertisement, name or notice without
notice to and at the expense of Tenant. If Tenant is allowed to print or affix
or in any way place a sign in, on, or about the Premises, upon expiration or
other sooner termination of this Lease, Tenant at Tenant's sole cost and
expense shall both remove such sign and repair all damage in such a manner as
to restore all aspects of the appearance of the Premises to the condition prior
to the placement of said sign.
All approved signs or lettering on outside doors shall be printed,
painted, affixed or inscribed at the expense of Tenant by a person approved of
by Landlord.
Tenant shall not place anything or allow anything to be placed near
the glass of any window, door partition or wall which may appear unsightly from
outside the Premises.
38. MISCELLANEOUS AND GENERAL PROVISIONS
A. Use of Building Name. Tenant shall not, without the written
consent of Landlord, use the name of the building for any purpose other than as
the address of the business conducted by Tenant in the Premises.
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<PAGE> 8
B. Choice of Law; Severability. This Lease shall in all respects be
governed by and construed in accordance with the laws of the State of
California. If any provision of this Lease shall be invalid, unenforceable or
ineffective for any reason whatsoever, all other provisions hereof shall be and
remain in full force and effect.
C. Definition of Terms. The term "Premises" includes the space leased
hereby and any improvements now or hereafter installed therein or attached
thereto. The term "Landlord" or any pronoun used in place thereof includes the
plural as well as the singular and the successors and assigns of Landlord. The
term "Tenant" or any pronoun used in place thereof includes the plural as well
as the singular and individuals, firms, associations, partnerships and
corporations, and their and each of their respective heirs, executors,
administrators, successors and permitted assigns, according to the context
hereof, and the provisions of this Lease shall inure to the benefit of and bind
such heirs, executors, administrators, successors and permitted assigns.
The term "person" includes the plural as well as the singular and
individuals, firms, associations, partnerships and corporations. Words used in
any gender include other genders. If there be more than one Tenant the
obligations of Tenant hereunder are joint and several. The paragraph headings
of this Lease are for convenience of reference only and shall have no effect
upon the construction or interpretation of any provision hereof.
D. Time of Essence. Time is of the essence of this Lease and of each and
all of its provisions.
E. Quitclaim. At the expiration or earlier termination of this Lease,
Tenant shall execute, acknowledge and deliver to Landlord, within ten (10) days
after written demand from Landlord to Tenant, any quitclaim deed or other
document required by any reputable title company, licensed to operate in the
State of California, to remove the cloud or encumbrance created by this Lease
from the real property of which Tenant's Premises are a part.
F. Incorporation of Prior Agreements; Amendments. This instrument along
with any exhibits and attachments hereto constitutes the entire agreement
between Landlord and Tenant relative to the Premises and this agreement and the
exhibits and attachments may be altered, amended or revoked only by an
instrument in writing signed by both Landlord and Tenant. Landlord and Tenant
agree hereby that all prior or contemporaneous oral agreements between and
among themselves and their agents or representatives relative to the leasing of
the Premises are merged in or revoked by this agreement.
G. Recording. Neither Landlord nor Tenant shall record this Lease or a
short form memorandum hereof without the consent of the other.
H. Amendments for Financing. Tenant further agrees to execute any
reasonable amendments required by a lender to enable Landlord to obtain
financing, so long as Tenant's rights hereunder are not substantially affected.
I. Additional Paragraphs. Paragraphs 39 through 53 are added hereto and are
included as a part of this lease.
J. Clauses, Plats and Riders. Clauses, plats and riders, if any, signed by
Landlord and Tenant and endorsed on or affixed to this Lease are a part hereof.
K. Diminution of Light, Air or View. Tenant covenants and agrees that no
diminution or shutting off of light, air or view by any structure which may be
hereafter erected (whether or not by Landlord) shall in any way affect his
Lease, entitle Tenant to any reduction of rent hereunder or result in any
liability of Landlord to Tenant.
IN WITNESS WHEREOF, Landlord and Tenant have executed and delivered this
Lease as of the day and year last written below.
LANDLORD: TENANT:
ARRILLAGA FAMILY TRUST ABGENIX, INC.,
a Delaware corporation
By /s/ John Arrillaga By /s/ R. Scott Greer
----------------------------- -----------------------------
John Arrillaga, Trustee
Date: 10/3/96 Title: President and CEO
--------------------------- -------------------------
RICHARD T. PEERY SEPARATE PROPERTY TRUST
Type or Print Name R. Scott Greer
---------------
By /s/ Richard T. Peery Date: 9/26/96
-------------------------------- -----------------------------
Richard T. Peery, Trustee
Date: 10/3/96
-----------------------------
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<PAGE> 9
Paragraphs 39 through 53 to Lease Agreement Dated July 31, 1996, By and Between
the Arrillaga Family Trust and the Richard T. Peery Separate Property Trust, as
Landlord, and Abgenix, Inc., a Delaware corporation, as Tenant for 52,416 (plus
or minus) Square Feet of Space Located at 7601 Dumbarton Circle, Fremont,
California.
39. BASIC RENT: Subject to Paragraphs 2A and 2B, and in accordance with
Paragraph 4A herein, the total aggregate sum of NINE MILLION SIX HUNDRED TWENTY
THREE THOUSAND FIVE HUNDRED SEVENTY SEVEN AND 60/100 DOLLARS ($9,623,577.60),
shall be payable as follows:
On February 1, 1997, the sum of SEVENTY THOUSAND SEVEN HUNDRED SIXTY
ONE AND 60/100 DOLLARS ($70,761.60) shall be due, and a like sum due on the
first day of each month thereafter, through and including January 1, 1999.
On February 1, 1999, the sum of SEVENTY THREE THOUSAND THREE HUNDRED
EIGHTY TWO AND 40/100 DOLLARS ($73,382.40) shall be due, and a like sum due on
the first day of each month thereafter, through and including January 1, 2000.
On February 1, 2000, the sum of SEVENTY SIX THOUSAND THREE AND 20/100
DOLLARS ($76,003.20) shall be due, and a like sum due on the first day of each
month thereafter, through and including January 1, 2001.
On February 1, 2001, the sum of SEVENTY EIGHT THOUSAND SIX HUNDRED
TWENTY FOUR AND NO/100 DOLLARS ($78,624.00) shall be due, and a like sum due on
the first day of each month thereafter, through and including January 1, 2002.
On February 1, 2002, the sum of EIGHTY ONE THOUSAND TWO HUNDRED FORTY
FOUR AND 80/100 DOLLARS ($81,244.80) shall be due, and a like sum due on the
first day of each month thereafter, through and including January 1, 2003.
On February 1, 2003, the sum of EIGHTY THREE THOUSAND EIGHT HUNDRED
SIXTY FIVE AND 60/100 DOLLARS ($83,865.60) shall be due, and a like sum due on
the first day of each month thereafter, through and including January 1, 2004.
On February 1, 2004, the sum of EIGHTY SIX THOUSAND FOUR HUNDRED
EIGHTY SIX AND 40/100 DOLLARS ($86,486.00) shall be due, and a like sum due on
the first day of each month thereafter, through and including January 1, 2005.
On February 1, 2005, the sum of EIGHTY NINE THOUSAND ONE HUNDRED SEVEN
AND 20/100 DOLLARS ($89,107.20) shall be due, and a like sum due on the first
day of each month thereafter, through and including January 1, 2006.
On February 1, 2006, the sum of NINETY ONE THOUSAND SEVEN HUNDRED
TWENTY EIGHT AND NO/100 DOLLARS ($91,728.00) shall be due, and a like sum due on
the first day of each month thereafter, through and including January 1, 2007;
or until the entire aggregate sum of NINE MILLION SIX HUNDRED TWENTY THREE
THOUSAND FIVE HUNDRED SEVENTY SEVEN AND 60/100 DOLLARS ($9,623,577.60) has been
paid, subject to an adjustment as may be required by any provisions providing
for abatement of Rent or adjustment of the Term of this Lease.
40. CONSENT: Whenever the consent or approval of one party to the other is
required by the terms of this Lease, such consent or approval shall not be
unreasonably withheld.
41. ASSESSMENT CREDITS: The demised property herein may be subject to a
special assessment levied by the City of Fremont as part of an Improvement
District. As a part of said special assessment proceedings (if any), additional
bonds were or may be sold and assessments were or may be levied to provide for
construction contingencies and reserve funds. Interest shall be earned on such
funds created for contingencies and on reserve funds which will be credited for
the benefit of said assessment district. To the extent surpluses are created
in said district through unused contingency funds, interest earnings or reserve
funds, such surpluses shall be deemed the property of Landlord. Notwithstanding
that such surpluses may be credited on assessments otherwise due against the
Leased Premises, Tenant shall pay to Landlord, as additional rent if, and at
the time of any such credit of surpluses, an amount equal to all such surpluses
so credited. For example: if (i) the property is subject to an annual
assessment of $1,000,000, and (ii) a surplus
Initials: RSG
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<PAGE> 10
of $200.00 is credited towards the current year's assessment which reduces the
assessment amount shown on the property tax bill from $1,000.00 to $800.00,
Tenant shall, upon receipt of notice from Landlord, pay to Landlord said
$200.00 credit as Additional Rent.
42. ASSIGNMENT AND SUBLETTING (CONTINUED):
A. ASSIGNMENT AND SUBLETTING CONTINUED: In addition to and
notwithstanding anything to the contrary in Paragraph 16 of this Lease,
Landlord hereby agrees to consent to Tenant's assigning or subletting said
Lease to: (i) any parent or subsidiary corporation, affiliate, or corporation
with which Tenant merges or consolidates, and provided that, with respect to
any such assignment, said parent or subsidiary corporation, affiliate, or said
corporation has a net worth equal to or greater than the net worth of
Tenant at the time of such assignment, merger, or consolidation; or (ii) any
third party or entity to whom Tenant sells all or substantially all of its
assets; provided, that the new worth of the resulting or acquiring corporation
has a net worth after the merger, consolidation or acquisition equal to or
greater than the net worth of Tenant at the time of such merger, consolidation
or acquisition. No such assignment or subletting will release the Tenant from
its liability and responsibility under this Lease to the extent Tenant
continues in existence following such transaction. Notwithstanding the above,
Tenant shall be required to (a) give Landlord written notice prior to such
assignment or subletting to any party as described in (i) and (ii) above, and
(b) execute Landlord's consent document prepared by Landlord reflecting the
assignment or subletting.
B. Any and all sublease agreement(s) between Tenant and any and all
subtenant(s) (which agreements must be consented to by Landlord, pursuant to
the requirements of this Lease) shall contain the following language:
"If Landlord and Tenant jointly and voluntarily elect, for any
reason whatsoever, to terminate the Master Lease prior to the scheduled
Master Lease termination date, then this Sublease (if then still in
effect) shall terminate concurrently with the termination of the Master
Lease. Subtenant expressly acknowledges and agrees that (1) the
voluntary termination of the Master Lease by Landlord and Tenant and the
resulting termination of this Sublease shall not give Subtenant any
right or power to make any legal or equitable claim against Landlord,
including without limitation any claim for interference with contract or
interference with prospective economic advantage, and (2) Subtenant
hereby waives any and all rights it may have under law or at equity
against Landlord to challenge such an early termination of the Sublease,
and unconditionally releases and relieves Landlord, and its officers,
directors, employees and agents, from any and all claims, demands,
and/or causes of action whatsoever (collectively, "Claims"), whether
such matters are known or unknown, latent or apparent, suspected or
unsuspected, foreseeable or unforeseeable, which Subtenant may have
arising out of or in connection with any such early termination of this
Sublease. Subtenant knowingly and intentionally waives any and all
protection which is or may be given by Section 1542 of the California
Civil Code which provides as follows: "A general release does not extend
to claims which the creditor does not know or suspect to exist in his
favor at the time of executing the release, which if known by him must
have materially affected his settlement with debtor.
The term of this Sublease is therefore subject to early
termination. Subtenant's initials here below evidence (a) Subtenant's
consideration of and agreement to this early termination provision, (b)
Subtenant's acknowledgment that, in determining the net benefits to be
derived by Subtenant under the terms of this Sublease, Subtenant has
anticipated the potential for early termination, and (c) Subtenant's
agreement to the general waiver and release of Claims above.
Initials:_______________ Initials:_______________"
Subtenant Tenant
43. HAZARDOUS MATERIALS: Landlord and Tenant agree as follows with respect
to the existence or use of "Hazardous Materials" (as defined herein) on, in,
under or about the Premises and real property located beneath said Premises
(hereinafter collectively referred to as the "Property"):
As used herein, the term "Hazardous Materials" shall mean any hazardous or
toxic substance, material or waste which is or becomes subject to or regulated
by any local governmental authority, the State of California, or the United
States Government. The term "Hazardous Materials" includes, without limitation
Page 10 Initial: RSG JA
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<PAGE> 11
any material or hazardous substance which is (i) listed under Article 9 or
defined as "hazardous" or "extremely hazardous" pursuant to Article 11 of Title
22 of the California Administrative Code, Division 4, Chapter 30, (ii) listed
or defined as a "hazardous waste" pursuant to the Federal Resource Conservation
and Recovery Act, Section 42 U.S.C. Section 6901 et. seq., (iii) listed or
defined as a "hazardous substance" pursuant to the Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S.C. Section 9601 et. seq. (42
U.S.C. Section 9601), (iv) petroleum or any derivative of petroleum, or (v)
asbestos.
Tenant shall have no obligation to "clean up", reimburse, release, indemnify,
or defend Landlord with respect to any Hazardous Materials or wastes which
Tenant (prior to and during the Term of the Lease) or other parties on the
Property, as described below, (during the Term of this Lease) did not store,
dispose, or transport in, use, or cause to be on the Property or which Tenant,
its agents, employees, contractors, vendors, invitees, visitors or its future
subtenants and/or assignees (if any) (during the Term of this Lease), did not
store, dispose, or transport in, use or cause to be on the Property in
violation of applicable law.
Tenant shall be 100 percent liable and responsible for: (i) any and all
"investigation and cleanup" of any Hazardous Materials contamination resulting
from any Hazardous Materials which Tenant, its agents, employees, contractors,
vendors, invitees, visitors or its future subtenants and/or assignees (if any),
or other parties on the Property, does store, dispose, or transport in, use or
cause to be on the Property, and (ii) any claims, including third party claims,
resulting from such Hazardous Materials contamination. Tenant shall indemnify
Landlord and hold Landlord harmless from any liabilities, demands, costs,
expenses and damages, including, without limitation, attorney fees incurred as
a result of any claims resulting from any such Hazardous Materials
contamination.
Tenant also agrees not to use or dispose of any Hazardous Materials on the
Property without first obtaining Landlord's written consent; provided, however,
that Landlord's consent shall not be required for normal use of customary
household and office supplies, such as cleaners, lubricants, solvents, copier
toner, etc. Tenant agrees to complete compliance with governmental regulations
regarding the use or removal or remediation of all Hazardous Materials used,
stored, disposed of, transported or caused to be on the Property as stated
above, and prior to the termination of said Lease Tenant agrees to follow the
proper closure procedures and will obtain a clearance from the local fire
department and/or the appropriate governing agency. If Tenant uses any
Hazardous Materials, Tenant also agrees to install at Tenant's expense, such
Hazardous Materials monitoring devices as Landlord deems reasonably necessary.
It is agreed that the Tenant's responsibilities related to Hazardous Materials
will survive the termination date of the Lease and that Landlord may obtain
specific performance of Tenant's responsibilities under this Paragraph 43.
Subject to the terms and conditions of this Lease, Landlord hereby acknowledges
its consent to Tenant's storage and use on the Property of those Hazardous
Materials listed on Exhibit C attached hereto. At Tenant's sole cost and
expense, each year upon the anniversary of the Commencement Date of the Lease
Term ("Anniversary Date"), Tenant shall hire a qualified environmental
consultant, acceptable to Landlord, to evaluate whether Tenant is in compliance
with all applicable Governmental Regulations pertaining to Hazardous Materials.
Tenant shall submit to Landlord a report from such environmental consultant
which discusses the environmental consultant's findings within two (2) months
of each Anniversary Date. Tenant shall promptly take all steps necessary to
correct any and all problems identified by the environmental consultant and
provide Landlord with documentation of all such corrections.
44. THREE (3)-THREE (3) YEAR OPTIONS TO EXTEND: Landlord hereby grants to
Tenant, subject to the provisions below, three (3)-three (3)-year Options to
Extend this Lease Agreement as follows:
A. FIRST THREE (3)-YEAR OPTION PERIOD: Provided Tenant, at the time
Tenant gives Landlord notice of Tenant's exercise of its Option to Extend, is
not in default (pursuant to Paragraph 19 of the Lease, i.e., Tenant has
received notice and any applicable cure period has expired without cure) in any
of the terms, covenants, and conditions of this Lease Agreement, Landlord
hereby grants to Tenant an Option to Extend this Lease Agreement for an
additional three (3)-year period ("Extended Term") upon the following terms and
conditions:
1. Tenant shall give Landlord written notice of Tenant's
exercise of this Option to Extend not later than twelve (12) months prior to
the scheduled Lease Termination Date, which Termination Date is currently
projected to be January 31, 1997, in which event the Lease shall be considered
extended for an additional three (3) years subject to the Basic Rental set
forth below and with: (i) the terms and conditions subject to amendment by
Landlord (Landlord, in its sole and absolute discretion, may, but is not
required to, incorporate its current Lease provisions that are standard in
Landlord's leases as of the date of Tenant's exercise of its Option to Extend);
and (ii) this Paragraph 44A deleted. In the event that Tenant fails to timely
exercise Tenant's option as set forth herein in writing, Tenant shall have no
further Option to Extend this Lease, and this Lease shall continue in full
force and effect for the full remaining term hereof, absent this Paragraph
44A, Paragraph 44B, and Paragraph 44C.
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<PAGE> 12
2. The following summarizes the Monthly Basic Rental and
the related per square foot charge by period under the Lease Agreement that
would be applied to the Extended Term:
<TABLE>
<CAPTION>
Monthly
Period PSF Rate Basic Rental
------ -------- ------------
<S> <C> <C>
02/01/07-01/31/08 $1.80 $94,348.80
02/01/08-01/31/09 $1.85 $96,969.60
02/01/09-01/31/10 $1.90 $99,590.40
</TABLE>
3. It is agreed that if Tenant is at any time prior to
exercising its Option to Extend in default of this Lease and has failed to cure
the default in the time period allowed, this Paragraph 44 will be null and void
and Tenant will have no further rights under this Paragraph. It is further
agreed that if Tenant has exercised its Option to Extend and is subsequently in
default and fails to cure said default in the time period allowed prior to, or
at any time the lease commences on the Extended Term, Landlord may at its sole
and absolute discretion, cancel Tenant's Option to Extend, and this Lease will
continue in full force and effect for the full remaining term hereof, absent of
this Paragraph 44.
4. The option rights of Tenant under this Paragraph 44,
and the Extended Term thereunder, are granted for Tenant's personal benefit and
may not be assigned or transferred by Tenant (except to a parent or subsidiary
corporation or successor by merger as provided for in Paragraph 42A), either
voluntarily or by operation of law, in any manner whatsoever. In the event that
Landlord consents to a sublease or assignment under Paragraph 16 and said
sublease and/or assignment represents twenty five percent (25%) or more of the
Premises, the option granted herein and the first Extended Term thereunder
shall be void and of no force and effect, whether or not Tenant shall have
purported to exercise such option prior to such assignment or sublease.
5. INCREASED SECURITY DEPOSIT: In the event the term of
Tenant's Lease is extended pursuant to this Paragraph 44A, Tenant's Security
Deposit shall be increased to equal twice the Basic Rental due for the last
month of the Extended Term (i.e. $99,590.40 per month X 2 = $199,180.80).
B. SECOND THREE (3)-YEAR OPTION PERIOD: Provided Tenant, at the
time Tenant gives Landlord notice of Tenant's exercise of its Option to Extend,
is not in default (pursuant to Paragraph 19 of the Lease, i.e., Tenant has
received notice and any applicable cure period has expired without cure) in any
of the terms, covenants, and conditions of this Lease Agreement and has
extended the Lease for an additional three (3) year period as set forth in
Paragraph 44A above, Landlord hereby grants to Tenant an Option to Extend this
Lease Agreement for an additional three (3) years ("Second Extended Term") upon
the following terms and conditions:
1. Tenant shall give Landlord written notice of Tenant's
exercise of this Option to Extend at least twelve (12) months prior to the
expiration of the Extended Term pursuant to Paragraph 44A hereof (not later
than January 31, 2009), in which event the Lease shall be considered extended
for an additional three (3) years subject to the Basic Rental set forth below
and with: (i) the terms and conditions subject to amendment by Landlord
(Landlord, in its sole and absolute discretion, may, but is not required to,
incorporate its current Lease provisions that are standard in Landlord's leases
as of the date of Tenant's exercise of its Option to Extend); and (ii) this
Paragraph 44B deleted. In the event that Tenant fails to timely exercise
Tenant's option as set forth herein in writing, Tenant shall have no further
Option to Extend this Lease, and this Lease shall continue in full force and
effect of the full remaining term hereof, absent this Paragraph 44B and
Paragraph 44C.
2. The following summarizes the Monthly Basic Rental and
the related per square foot charge by period under the Lease Agreement that
would be applied to the Second Extended Term:
<TABLE>
<CAPTION>
Monthly
Period PSF Rate Basic Rental
------ -------- ------------
<S> <C> <C>
02/01/10-01/31/11 $1.95 $102,211.20
02/01/11-01/31/12 $2.00 $104,832.00
02/01/12-01/31/13 $2.05 $107,452.80
Initial: RSG JA
-------------
</TABLE>
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3. It is agreed that if Tenant is at any time prior to exercising its
Option to Extend in default of this Lease and has failed to cure the default in
the time period allowed, this Paragraph 44 will be null and void and Tenant
will have no further rights under this paragraph. It is further agreed that if
Tenant has exercised its Option to Extend and is subsequently in default and
fails to cure said default in the time period allowed prior to, or at any time
the lease commences on the Second Extended Term, Landlord may at its sole and
absolute discretion, cancel Tenant's Option to Extend, and this Lease will
continue in full force and effect for the full remaining term hereof, absent of
this Paragraph 44.
4. The option rights of Tenant under this Paragraph 44B, and the Second
Extended Term thereunder, are granted for Tenant's personal benefit and may not
be assigned or transferred by Tenant (except to a parent or subsidiary
corporation or successor by merger as provided for in Paragraph 42A), either
voluntarily or by operation of law, in any manner whatsoever. In the event
that Landlord consents to a sublease or assignment under Paragraph 16 and said
sublease and/or assignment represents twenty five percent (25%) or more of the
Premises, the option granted herein and the Second Extended Term thereunder
shall be void and of no force and effect, whether or not Tenant shall have
purported to exercise such option prior to such assignment or sublease.
5. INCREASED SECURITY DEPOSIT: In the event of the term of Tenant's
Lease is extended pursuant to this Paragraph 44B, Tenant's Security Deposit
shall be increased to equal twice the Basic Rental due for the last month of
the Second Extended Term (i.e. $107,452.80 per month X 2 = $214,905.60).
C. THIRD THREE (3)-YEAR OPTION PERIOD: Provided Tenant, at the time
Tenant gives Landlord notice of Tenant's exercise of its Option to Extend, is
not in default (pursuant to Paragraph 19 of the Lease, i.e., Tenant has
received notice and any applicable cure period has expired without cure) in any
of the terms, covenants, and conditions of this Lease Agreement and has
extended the Lease for two (2) additional three (3) year periods as set forth
in Paragraphs 44A and 44B above, Landlord hereby grants to Tenant an Option to
Extend this Lease Agreement upon the following terms and conditions:
1. Tenant shall give Landlord written notice of Tenant's
exercise of this Option to Extend at least twelve (12) months prior to the
expiration of the Second Extended Term pursuant to Paragraph 44B hereof (not
later than January 31, 2012), in which event the Lease shall be considered
extended for an additional three (3) years ("Third Extended Term") subject to
the Basic Rental set forth below and with: (i) the terms and conditions subject
to amendment by Landlord (Landlord, in its sole and absolute discretion, may,
but is not required to, incorporate its current Lease provisions that are
standard in Landlord's leases as of the date of Tenant's exercise of its Option
to Extend); and (ii) this Paragraph 44C deleted. In the event that Tenant fails
to timely exercise Tenant's option as set forth herein in writing, Tenant shall
have no further Option to Extend this Lease, and this Lease shall continue in
full force and effect for the full remaining term hereof, absent this Paragraph
44C.
2. The following summarizes the Monthly Basic Rental and the
related per square foot charge by period under the Lease Agreement that would be
applied to the Third Extended Term:
<TABLE>
<CAPTION>
Monthly
Period PSF Rate Basic Rental
- ------ -------- ------------
<S> <C> <C>
02/01/13-01/31/14 $2.10 $110,073.60
02/01/14-01/31/15 $2.15 $112,694.40
02/01/15-01/31/16 $2.20 $115,315.20
</TABLE>
3. It is agreed that if Tenant is at any time prior to
exercising its Option to Extend in default of this Lease and has failed to cure
the default in the time period allowed, this Paragraph 44 will be null and void
and Tenant will have no further rights under this paragraph. It is further
agreed that if Tenant has exercised its Option to Extend and is subsequently in
default and fails to cure said default in the time period allowed prior to, or
at any time the lease commences on the Second Extended Term, Landlord may at
its sole and absolute discretion, cancel Tenant's Option to Extend, and this
Lease will continue in full force and effect for the full remaining term
hereof, absent of this Paragraph 44.
4. The option rights of Tenant under this Paragraph 44C, and
the Third Extended Term thereunder, are granted for Tenant's personal benefit
and may not be assigned or transferred by Tenant (except to a parent or
subsidiary corporation or successor by merger as provided for in paragraph
42A), either voluntarily or by operation of law, in any manner whatsoever. In
the event that Landlord consents to a sublease or assignment under Paragraph 16
and said sublease and/or assignment represents twenty five percent (25%) or
more of the Premises, the option granted herein and the Third Extended Term
thereunder
Initial: RSG JA
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<PAGE> 14
shall be void and of no force and effect, whether or not Tenant shall have
purported to exercise such option prior to such assignment or sublease.
5. INCREASED SECURITY DEPOSIT: In the event the term of Tenant's Lease
is extended pursuant to this Paragraph 44C, Tenant's Security Deposit shall be
increased to equal twice the Basic Rental due for the last month of the Third
Extended Term (i.e. $115,315.20 per month X 2 = $230,630.40).
D. ADJUSTMENTS TO THE AFOREMENTIONED OPTION PERIODS: In the event the
initial Lease Term is extended pursuant to Paragraph 48 ("Tenant's Option to
Lease an Additional Building from Landlord") to coincide with the initial
termination date of the Building Two Lease, the following amendments shall be
made to Tenant's Option to Extend as described in Paragraphs 44A, B and C:
1. The First Three (3) Year Option Period shall be reduced by the
number of months this Lease is extended pursuant to Paragraph 48; and
2. The per square foot Monthly Basic Rental ("MBR") shall be increased
at the rate of $.05 per square foot on each anniversary date of the Lease
Commencement Date during (i) the Extended Term and (ii) each of the Option
Periods. The required Security Deposit and Aggregate Basic Rent shall be
increased accordingly.
For Example: If Tenant exercises its option for Building Two (as
provided in the Option Agreement and referenced in Paragraph 48 herein) and the
Building Two Lease commences on February 1, 1998, (a) the initial Term of this
Lease shall be extended for one (1) year (to January 31, 2008); (b) the MBR
during the one year Extension Term shall be $1.80 and the Security Deposit
shall be increased to $188,679.60; (c) the First Three Year Option Period would
be reduced to a Two Year Option Period; (d) the MBR during the first twelve
months of the Two Year Option Period would be $1.85 and would increase at $.05
on the anniversary date of the Lease Commencement Date each year thereafter
during the Two Year Option Period and during the Second and Third Three Year
Option Periods; and (e) the Security Deposit for each Option Period would be
adjusted accordingly.
45. ASSOCIATION DUES: The Premises leased hereunder is part of the Ardenwood
Property Owner's Association (the "Association"), and is subject to Association
Dues to fund the cost of the Association's obligations and expenses as
authorized under said Agreement. As of the date of this Lease, Tenant's current
prorata share of the Association Dues is currently estimated at $2,236.00 per
year and is subject to adjustment as provided for by said Association. Said
Association Dues are payable by Tenant to Landlord as Additional Rent on a
monthly basis throughout the Term of this Lease. Tenant understands that it
will not be a direct member of the Association.
46. SUBDIVISION: Landlord and Tenant agree that the Premises and the Parcel
outlined in Green on Exhibit A attached hereto are subject to non-material
change and/or modification once the parcel lot lines are adjusted and said
revised parcel dimensions are recorded. The parties agree that in the event
the parcel lot lines are adjusted, Exhibit A shall be replaced with a revised
and corrected Exhibit A-1, indicating any revisions to the site plan, including
specific parking stall locations and/or lot line adjustments.
47. ADDRESS FOR LEASED PREMISES: It is understood that (i) the current address
for the building in which the Premises are located is 7601 Dumbarton Circle,
Fremont, California, and that (ii) the address for the Premises will be
assigned by the City of Fremont (the "City") upon issuance of a building permit
for the Interior Improvements as defined herein. In the event the address
assigned to the Premises is changed by the City, said Lease shall thereafter be
amended to reflect the assigned address for the Premises leased hereunder.
48. TENANT'S OPTION TO LEASE AN ADDITIONAL BUILDING FROM LANDLORD: Pursuant to
that certain Option Agreement of even date herewith, Landlord has granted
Tenant an option to lease from Landlord an additional building (the "Building
Two Lease") to be constructed on property adjacent to the building leased
hereunder. Pursuant to the terms and conditions of the Option Agreement, if
Tenant exercises its option as described within said Option Agreement, Landlord
and Tenant shall execute an amendment prepared by Landlord providing for: (i)
the extension of the initial ten year Lease Term hereunder to be co-terminus
with the Building Two initial Term Lease Termination Date; and (ii) the
inclusion of the cross-default paragraph and co-terminus paragraph referenced
below.
"LEASE TERMS CO-TERMINUS: It is acknowledged that (i)
concurrently with the execution of this Amendment No. ___, Landlord and Tenant
are also executing a Lease Agreement dated ________________________,
(hereinafter referred to as the "Building Two Lease") affecting adjacent
property and (ii) it
Page 14 Initial: RSG JA
----------
<PAGE> 15
is the intention of the parties that the initial Term of this Lease be
co-terminous with the initial term of the Building Two Lease such that the terms
of both leases expire on the same date; provided, however, the termination of
this Lease resulting from the terms and conditions stated under Paragraph 19
"Bankruptcy and Default" (subject to Landlord's option as stated in the
respective leases' "Cross Default" Paragraph) shall not result in a termination
of the Building Two Lease, unless Landlord elects, at its sole and absolute
discretion, to terminate either or both of the leases.
CROSS DEFAULT: As a material part of the consideration for the
execution of the Building Two Lease by Landlord, it is agreed between Landlord
and Tenant that a default under this Lease, or a default under said Building
Two Lease may, at the option of Landlord, be considered a default under both
leases, in which event Landlord shall be entitled (but in no event required) to
apply all rights and remedies of Landlord under the terms of one lease to both
leases including, but not limited to, the right to terminate one or both of
said leases by reason of a default under said Building Two Lease or hereunder."
49. AUTHORITY TO EXECUTE. The parties executing this Agreement hereby warrant
and represent that they are properly authorized to execute this Agreement and
bind the parties on behalf of whom they execute this agreement and to all of
the terms, covenants and conditions of this Agreement as they relate to the
respective parties hereto.
50. TAXES CONTINUED:
A. Notwithstanding anything within Paragraph 9, it is agreed that if
any special assessments for capital improvements are assessed, and if Landlord
has the option to either pay the entire assessment in cash or go to bond, and
if Landlord elects to pay the entire assessment in cash in lieu of going to
bond, the entire portion of the assessment assigned to Tenant's Leased Premises
will be prorated over the same period that the assessment would have been
prorated had the assessment gone to bond.
B. Notwithstanding anything within Paragraph 9, in the event prior to
the Commencement Date there is an interim or supplemental reassessment of the
Premises based upon the added value of the Improvements, then when Tenant
accepts occupancy of the Premises Tenant shall pay any interim or supplemental
taxes (but no penalties or interest in connection therewith) that have been
levied against the Premises and are attributable to the added value of the
Improvements (as defined in the Construction Letter of even date herewith)
during the period prior to Tenant's occupancy of the Premises.
51. SUBORDINATION AND MORTGAGES CONTINUED: Landlord represents to Tenant that
the Premises are not presently encumbered by a deed of trust or other security
device in favor of any Lender.
52. EARLY ENTRY: Pursuant to the terms and conditions of this Lease and the
related Construction Letter, Tenant and its agents and contractors shall be
permitted to enter the Premises after the execution of this Lease and the
Construction Letter by the parties hereto for the purpose of (i) constructing
Interior Improvements as provided for in the related Construction Letter and as
approved by Landlord and as shown on Exhibit B and (ii) installing, at Tenant's
sole cost and expense, Tenant's trade fixtures and equipment, telephone
equipment, security systems and cabling for computers. Such entry shall be
subject to all of the terms and conditions of this Lease, except that Tenant
shall not be required to pay any Basic Rent or Additional Rent on account
thereof; except however, Tenant shall be responsible for paying (i)
supplemental taxes as stated in Paragraph 50B above, and (ii) all utilities for
the Premises from the date on which Tenant commences said Interior
Improvements, and as such, Tenant shall contact the related utility providers
and transfer the billing for said utilities into Tenant's name. Any entry or
installation work by Tenant and its agents in the Premises pursuant to this
Paragraph 52 shall (i) be undertaken at Tenant's sole risk, and (ii) not be
deemed occupancy or possession of the Premises for purposes of the Lease.
Tenant shall indemnify, defend, and hold Landlord harmless from any and all
loss, damage, liability, expense (including reasonable attorney's fees), claim
or demand of whatsoever character, direct or consequential, including, but
without limiting thereby the generality of the foregoing, injury to or death of
persons and damage to or loss of property arising out of the exercise by Tenant
of any early entry right granted hereunder.
53. ALTERATIONS AND ADDITIONS CONTINUED: Notwithstanding anything to the
contrary in Paragraph 6 ("Alterations and Additions"), during the Lease Term,
Tenant shall retain ownership of the Interior Improvements installed and paid
for by Tenant; however, except for the trade fixtures listed on the attached
Exhibit D (the "Trade Fixtures") (to be installed and paid for by Tenant), said
Interior
Initial: RSG JA
----------------
Page 15
<PAGE> 16
Improvements shall become the property of Landlord upon Lease termination. It
is agreed by the parties hereto that in the event Tenant installs said Trade
Fixtures listed on Exhibit D, Tenant shall have the right to remove said Trade
Fixtures prior to the Lease Termination Date. Subject to the terms of this
Paragraph 53, Tenant shall be responsible and liable for (i) complying with all
permit and other governmental regulations related to the installation and/or
removal of said Trade Fixtures, and (ii) immediately restoring any and all
damage to the Premises resulting from the installation and/or removal of said
Trade Fixtures. In the event Tenant elects to remove any of said Trade Fixtures
prior to the Lease Termination Date, Tenant shall be responsible and liable for
removing all the lab walls shown in Green on Exhibit B, creating an "open
office" area (in the former lab location) and paying to Landlord an amount
equal to (a) the cost of Landlord's standard grade carpet and base board (as
used in the carpeted areas of the Premises) and (b) the cost of installation of
said carpet and base board. Notwithstanding the above, in the event Tenant
elects not to remove said Trade Fixtures at the end of the Lease Term, Tenant
shall not be required to (i) remove the lab walls as shown in Green on Exhibit
B or (ii) pay to Landlord the cost of materials and installation of carpet and
base board in the former lab location.
In addition, prior to the Lease Termination Date, Tenant shall be responsible
for removing the animal containment area as shown in Orange on Exhibit B,
complying with all permit and other governmental regulations related to the
installation and removal of said animal containment area, and restoring said
area to its original shell condition.
Page 16 Initial: RSG JA
---------
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from balance
sheet as of September 30, 1996 and income statement for the nine months ended
September 30, 1996 and is qualified in its entirety by reference to such Form
10-Q filed for the quarterly period ended September 30, 1996.
</LEGEND>
<MULTIPLIER> 1,000
<CURRENCY> U.S. DOLLARS
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-START> JAN-01-1996
<PERIOD-END> SEP-30-1996
<EXCHANGE-RATE> 1
<CASH> 9,585
<SECURITIES> 68,345
<RECEIVABLES> 0
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 78,852
<PP&E> 19,968
<DEPRECIATION> 11,306
<TOTAL-ASSETS> 88,131
<CURRENT-LIABILITIES> 9,138
<BONDS> 6,479
0
0
<COMMON> 127,107
<OTHER-SE> 0
<TOTAL-LIABILITY-AND-EQUITY> 88,131
<SALES> 0
<TOTAL-REVENUES> 15,101
<CGS> 0
<TOTAL-COSTS> 25,085
<OTHER-EXPENSES> 874
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 874
<INCOME-PRETAX> (7,472)
<INCOME-TAX> 0
<INCOME-CONTINUING> (7,472)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (7,472)
<EPS-PRIMARY> (0.46)
<EPS-DILUTED> 0
</TABLE>
<PAGE> 1
Exhibit 99
Cell Genesys, Inc.
Consolidating Balance Sheet
September 30, 1996
(In thousands)
<TABLE>
<CAPTION>
GENE THERAPY ABGENIX,
BUSINESS INC. ELIMINATIONS CONSOLIDATED
-------------------------------------------------------------
<S> <C> <C> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $ 2,630 $ 6,955 $ - $ 9,585
Short-term investments 65,404 2,941 - 68,345
Prepaid expenses and other current assets
1,036 - (114) 922
-------------------------------------------------------------
Total current assets 69,070 9,896 (114) 78,852
Property and equipment at cost, net 8,648 14 - 8,662
Investment in Abgenix, Inc. 10,194 - (10,194) -
Long-term inter-company note
receivable 825 - (825) -
Deposits and other assets 152 421 44 617
-------------------------------------------------------------
$ 88,889 $ 10,331 $ (11,089) $ 88,131
=============================================================
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 984 $ 114 $ (114) $ 984
Accrued compensation and benefits 837 231 - 1,068
Deferred revenue from related parties 2,389 (15) - 2,374
Other accrued liabilities 1,989 - - 1,989
Current portion of property and
equipment financing 2,723 - - 2,723
-------------------------------------------------------------
Total current liabilities 8,922 330 (114) 9,138
Long-term inter-company note payable - 825 (825) -
Non-current portion of property and
equipment financing 6,479 - - 6,479
Stockholders' equity:
Common stock 16 - - 16
Additional paid-in capital 127,091 - - 127,091
Preferred stock - Abgenix - 10,150 (10,150) -
Accumulated deficit (53,619) (974) - (54,593)
-------------------------------------------------------------
Total stockholders' equity 73,488 9,176 (10,150) 72,514
-------------------------------------------------------------
$ 88,889 $ 10,331 $ (11,089) $ 88,131
=============================================================
</TABLE>
13
<PAGE> 2
Cell Genesys, Inc.
Consolidating Statement of Operations
Quarter ended September 30, 1996
(In thousands)
<TABLE>
<CAPTION>
GENE THERAPY ABGENIX,
BUSINESS INC. ELIMINATIONS CONSOLIDATED
------------------------------------------------------
<S> <C> <C> <C> <C>
Revenue under collaborative
agreements with related parties $ 3,743 $ 803 $ (46) $ 4,500
Operating expenses:
Research and development 5,581 1,477 (46) 7,012
General and administrative 1,223 390 - 1,613
------------------------------------------------------
Total operating expenses 6,804 1,867 (46) 8,625
Interest income 1,001 90 - 1,091
Interest expense (282) - - (282)
------------------------------------------------------
Net loss $(2,342) $ (974) - $(3,316)
======================================================
</TABLE>
Note to Consolidating Financial Statements
Abgenix, Inc. was formed June 24, 1996 and commenced operations July 15, 1996.
Amounts shown are from July 15, 1996 through September 30, 1996.
14
