<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
QUARTERLY REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT
OF 1934
For quarter ended March 31, 2000 Commission File No. 0-19312
-------------- -------
MEDAREX, INC.
-------------
(Exact name of registrant as specified in its charter.)
New Jersey 22-2822175
- ---------- ----------
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
707 State Road #206, Princeton, New Jersey 08540
- ------------------------------------------ -----
(Address or principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (609) 430-2880
--------------
Indicate by check mark whether 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
--- ___
The number of shares of common stock, $.01 par value, outstanding as of May 1,
2000 was 35,155,185 shares.
Page 1 of 12
<PAGE>
MEDAREX, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(In thousands, except share data)
<TABLE>
<CAPTION>
December 31, March 31,
------------ ---------
1999 2000
(Unaudited)
<S> <C> <C>
ASSETS
- ------
Current assets:
Cash and cash equivalents $ 14,366 $ 403,552
Marketable securities 15,781 12,458
Prepaid expenses and
other current assets 4,395 3,308
----------- ----------
Total current assets 34,542 419,318
Property and equipment:
Machinery and equipment 5,061 5,199
Furniture and fixtures 366 351
Leasehold improvements 2,310 2,374
----------- ----------
7,707 7,924
Less accumulated depreciation and amortization (4,633) (4,994)
----------- ----------
3,074 2,930
Investments in, and advances to affiliates 499 498
Segregated cash 1,300 1,300
Patent rights and other assets 1,067 906
----------- ----------
Total assets $ 40,482 $ 424,952
=========== ==========
LIABILITIES AND SHAREHOLDERS' EQUITY
- ------------------------------------
Current liabilities:
Trade accounts payable $ 620 $ 501
Accrued liabilities 5,133 2,396
Deferred contract revenue - current 6,407 6,650
----------- ----------
Total current liabilities 12,160 9,547
Deferred contract revenue - long-term 6,000 5,083
Other long-term obligations 23 16
Commitments - -
Shareholders' equity
Preferred stock, $1.00 par value, 2,000,000 shares authorized;
none issued and outstanding - -
Common stock, $.01 par value; 40,000,000 shares authorized;
32,714,942 shares issued and 32,112,442 outstanding
December 31, 1999 and 35,754,335 issued and 35,151,835
outstanding on March 31, 2000 327 358
Capital in excess of par value 149,032 541,272
Treasury stock, at cost 602,500 shares (3,031) (3,031)
Deferred compensation 2,970 2,970
Accumulated other comprehensive loss (563) (502)
Accumulated deficit (126,436) (130,761)
----------- ----------
Total shareholders' equity 22,299 410,306
----------- ----------
Total liabilities and shareholders' equity $ 40,482 $ 424,952
=========== ==========
</TABLE>
See notes to those unaudited consolidated financial statements.
Page 2 of 12
<PAGE>
MEDAREX, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
(Unaudited)
(In thousands, except share data)
<TABLE>
<CAPTION>
Three Months Ended
March 31, March 31,
1999 2000
----------- -----------
<S> <C> <C>
Sales $ 44 $ 55
Grants, contract and license revenues 5,550 2,078
----------- -----------
Total revenues 5,594 2,133
Costs and expenses:
Cost of sales 28 27
Research and development 5,479 5,359
General and administrative 1,282 2,887
----------- -----------
Operating loss (1,195) (6,140)
Interest and dividend income 267 1,966
Interest expense (2) (1)
----------- -----------
Loss before Provision for Income Taxes (930) (4,175)
Provision for income taxes - (150)
----------- -----------
Net loss $ (930) $ (4,325)
=========== ===========
Basic and diluted net loss per share ($0.03) ($0.13)
=========== ===========
Weighed-average number of common
shares outstanding during the period
- basic and diluted 31,507,186 33,895,001
</TABLE>
See notes to these unaudited consolidated financial statements.
Page 3 of 12
<PAGE>
MEDAREX, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
(In thousands)
<TABLE>
<CAPTION>
For the Three Months Ended
March 31,
---------
1999 2000
---- ----
<S> <C> <C>
Operating activities:
Net loss $ (930) $ (4,325)
Adjustments to reconcile net loss to net cash
used in operating activities:
Depreciation 191 191
Amortization 105 180
Value of stock options to employees - 111
Value of stock options and warrants to non-employees - 818
Changes in operating assets and liabilities, net of acquisition:
Prepaid expenses and other current assets (428) 1,268
Trade accounts payable 688 (119)
Accrued liabilities (2,617) (2,734)
Deferred contract revenue (425) (674)
---------- ----------
Net cash used in operating activities (3,416) (5,284)
Investing activities:
Purchase of property and equipment (174) (217)
Decrease in other assets - 151
Decrease in advances to affiliate - 1
Purchase of marketable securities (4,000) -
Sale of marketable securities 10,505 3,384
---------- ----------
Net cash provided by investing activities 6,331 3,319
Financing activities:
Cash received from sales of securities, net - 391,161
Principal payments under debt obligations (28) (10)
---------- ----------
Net cash provided (used) by financing activities (28) 391,151
---------- ----------
Net increase in cash and cash equivalents 2,887 389,186
Cash and cash equivalents at beginning of period 4,411 14,366
---------- ----------
Cash and cash equivalents at end of period $ 7,298 $ 403,352
========== ==========
Supplemental disclosures of cash flow information
Cash paid during period for:
Income taxes $ - $ -
========== ==========
Interest $ 2 $ 1
========== ==========
</TABLE>
See notes to these unaudited consolidated financial statements.
Page 4 of 12
<PAGE>
MEDAREX, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
(Dollars in thousands)
1. Organization and Basis of Presentation
The unaudited consolidated financial statements have been prepared from the
books and records of Medarex, Inc. and Subsidiaries (the "Company") in
accordance with the instruction to Form 10-Q and, accordingly, do not include
all of the information and footnotes required by generally accepted accounting
principles for complete financial statements. In the opinion of management, all
adjustments (consisting of normal recurring accruals) considered necessary for a
fair presentation have been included. Interim results are not necessarily
indicative of the results that may be expected for the year. For further
information, refer to the financial statements and footnotes thereto included in
the Company's annual report on Form 10-K for the year ended December 31, 1999.
2. Net Loss per Share
Basic and diluted loss per share is calculated in accordance with the
Financial Accounting Standards Board ("FASB") SFAS No. 128, Earnings per Share.
Potentially dilutive securities have been excluded from the computation, as
their effect is antidilutive.
3. Marketable Securities
Marketable securities consist of fixed income investments with a maturity
of greater than three months and other highly liquid investments that can be
readily purchased or sold using established markets. Such securities, which are
classified as available-for-sale, are carried at market with unrealized gains
and losses reported as a separate component of shareholders' equity.
4. Contingencies
The Company has a contingent commitment to pay $1,000 to Essex Chemical
Corporation ("Essex") without interest in installments equal to 20% of net after
tax earnings of the Company in future years. The Company's contingent
commitment, as amended, to pay up to $1,000 out of future earnings may be
satisfied, at the Company's option, through the payment of cash or shares of the
Company's Common Stock having a fair market value equal to the amount owed,
provided that such shares are registered with the Securities and Exchange
Commission.
In the ordinary course of our business, the Company is at times subject to
various legal proceedings. The Company does not believe that any of our current
legal proceedings, individually or in the aggregate, will have a material
adverse effect on its operations or financial condition.
Page 5 of 12
<PAGE>
MEDAREX, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
(Dollars in thousands)
5. Follow-On Public Offering
On March 3, 2000 the Company announced the completion of a follow-on public
offering of 2,086,265 shares of Common Stock at a price of $172.00 per share and
on March 7, 2000 the Company announced the exercise by its underwriters of an
over-allotment option to purchase 312,939 shares. Including the underwriters
over-allotment, the follow-on public offering totaled 2,399,204 shares of Common
Stock at $172.00 per share, with net proceeds to the Company of approximately
$388,000.
The Company intends to use the net proceeds of the offering to fund the
in-licensing of potential therapeutic targets and the development of fully human
antibody-based products utilizing these targets; to fund the expansion of its
human antibody partnering business; to fund expansion of existing operations and
facilities; and for general corporate purposes, including research and
development expenses and other working capital requirements. Management will
have broad discretion to allocate proceeds from the offering to uses that it
believes are appropriate. Pending such uses, the net proceeds of the offering
will be invested in short-term, investment grade, interest-bearing securities.
The Company recently entered into a binding letter of intent with Eos
Biotechnology, Inc. to develop and commercialize genomics-derived antibody-based
therapeutic products. Pursuant to the letter of intent, on or before May 15,
2000 the Company is required to pay $5,000 to Eos Biotechnology and to
deposit an additional $20,000 in a third party escrow account to be
released over time to Eos Biotechnology upon the achievement of certain
milestones.
On March 31, 2000 the Company entered into a technology access agreement
with IDM, S.A., relating to the development of certain of Medarex's non-HuMAb-
Mouse antibody-based products. Under the terms of the technology access
agreement, the Company is required to pay IDM $2,000 upon the effective date of
a definitive unit purchase agreement which the Company anticipates will occur
during the second quarter of 2000. In addition, the Company is required to
purchase additional equity in IDM, or a comparable interest in a new jointly
owned entity, to fund up to an additional $5,000 in the event IDM does not
complete a public or private financing of at least $7,000 on or before December
31, 2000. Such an event could cause the Company to incur losses to the extent of
our investment in IDM. The Company has no other present commitments or
agreements with respect to any acquisitions of, or investment in, any new
technologies.
6. Contract and License Agreements
In March 2000, the Company entered into a strategic alliance with Regeneron
Pharmaceuticals, Inc., to combine Medarex's HuMAb-Mouse technology with
Regeneron's target identification expertise, including its Targeted
Genomics(TM), Functionomics(TM), and Designer Protein Therapeutics(TM)
platforms. The two companies plan to discover, develop and commercialize human
antibodies as therapeutics. The companies have selected more than twenty initial
targets, including growth factors, cytokines, and receptors, and anticipate
adding additional targets in the future.
Medarex and Regeneron have agreed to share preclinical and clinical
responsibilities, and the two companies have the right to jointly market any
drugs that result from this collaboration.
Also in March 2000, the Company announced the formation of a collaboration
with Raven Biotechnologies, Inc., aimed at identifying therapeutic antibodies
with the potential to treat a variety of diseases including cancer. Raven will
use Medarex's HuMAb-Mouse technology to develop fully human antibodies against
novel antigens discovered by Raven using their integrated platform of
comprehensive cell surface mapping. The agreement allows Raven to access the
HuMAb-Mouse technology for multiple targets. Under the terms of the agreement,
Medarex could receive research payments, license fees and milestone payments as
well as royalties on therapeutic product sales.
7. Comprehensive Income
On January 1, 1998, the Company adopted Statement of Financial Accounting
Standards No. 130, "Reporting Comprehensive Income" (SFAS 130). SFAS 130
establishes new rules for the reporting and display of comprehensive income and
its components. The adoption of SFAS 130 had no impact on the Company's results
of operations or shareholders' equity. SFAS 130 requires unrealized gains or
losses on the Company's available-for-sale securities, which prior to adoption
were reported separately in shareholders' equity to be included in other
comprehensive income. The components of comprehensive loss for the three months
ended March 31, are as follows:
<TABLE>
<CAPTION>
Three months ended March 31,
1999 2000
---- ----
<S> <C> <C>
Net loss $(930) $(4,325)
Unrealized gain on securities 58 61
----- -------
Total comprehensive loss $(872) $(4,264)
</TABLE>
Page 6 of 12
<PAGE>
MEDAREX, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
(Dollars in thousands)
8. Segment Information
The Company is an integrated monoclonal antibody-based company with
antibody discovery, development and manufacturing capabilities. The operations
of the Company and its wholly-owned subsidiaries constitute one business
segment.
Revenue from customers representing 10% or more of total revenues for the
three months ended March 31, 1999 and 2000 is as follows:
<TABLE>
<CAPTION>
Three Months Ended
March 31,
Customer 1999 2000
-------- ---- ----
<S> <C> <C>
Kirin Brewery Co., Ltd. 0% 70%
Centocor, Inc. 72% 0%
Merck KGaA 19% 0%
</TABLE>
No other single customer accounted for more than 10% of the Company's total
revenues for the three months ended March 31, 1999 and 2000, respectively.
9. Subsequent Events
In April 2000 the Company announced a collaboration with Coulter
Pharmaceuticals, Inc. through which Coulter will obtain access to Medarex's
HuMAb-Mouse technology to generate fully human monoclonal antibodies against a
number of specific target antigens.
Under the terms of the agreement, Coulter will have the option to obtain
exclusive commercial rights to these antibodies. In return, Medarex could
receive research and development payments, license fees and milestone payments,
as well as royalties on commercial sales of the fully human antibodies
developed by Coulter.
In May 2000 the Company entered into a broad antibody development agreement
with Centocor, Inc., a wholly owned subsidiary of Johnson & Johnson. This
agreement allows Centocor and other affiliates of Johnson & Johnson to access
the HuMAb-Mouse technology for an unlimited number of targets. Under the terms
of the agreement, Medarex will receive technology access fees, and could also
receive license fees, milestone fees and royalties on product sales.
Centocor has developed a high-affinity human antibody from the HuMAb-Mouse,
which is in pre-clinical development, and has other product candidates as well.
Page 7 of 12
<PAGE>
MEDAREX, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
(Dollars in thousands)
Item 2. Management's Discussion and Analysis of Financial Condition and Results
of Operations.
This Quarterly Report on Form 10-Q contains "forward-looking statements"
within the meaning of Section 27A of the Securities Act of 1933, as amended, and
Section 21E of the Securities Exchange Act of 1934, as amended, which represent
the Company's projections, estimates, expectations or beliefs concerning among
other things, financial items that relate to management's future plans or
objectives or to the Company's future economic and financial performance.
Forward-looking statements involve known and unknown risks and uncertainties and
are indicated by words such as "anticipates", "expects", "believes", "plans",
"could" and similar words and phrases. These risks and uncertainties include,
but are not limited to, the Company's early stage of product development,
history of operating losses and accumulated deficit, additional financing
requirements and access to capital funding, dependence on strategic alliances,
government regulation of the biopharmaceutical industry and other risks that may
be detailed from time to time in our periodic reports and registration
statements filed with the Securities and Exchange Commission.
Liquidity and Capital Resources
- -------------------------------
We have approximately $416,000 in cash, cash equivalents and marketable
securities and approximately $1,300 in a segregated cash account as of March 31,
2000. Operating activities consumed $5,284 of cash for the three-month period
ended March 31, 2000.
On March 3, 2000 we announced the completion of a follow-on public offering
of 2,086,265 shares of Common Stock at a price of $172.00 per share and on March
7, 2000 we announced the exercise by our underwriters of an over-allotment
option to purchase 312,939 shares. Including the over-allotment, the follow-on
public offering totaled 2,399,204 shares of commone stock at $172.00 per share,
with net proceeds to us of approximately $388,000. Management will have broad
discretion to allocate proceeds from the offering to uses that it believes are
appropriate. Pending such uses, the net proceeds of the offering will be
invested in short-term, investment grade, interest-bearing securities.
We recently entered into a binding letter of intent with Eos Biotechnology,
Inc. to develop and commercialize genomics-derived antibody-based therapeutic
products. Pursuant to the letter of intent, on or before May 15, 2000 we are
required to pay $5,000 to Eos Biotechnology and to deposit an additional $20,000
in a third party escrow account to be released over time to Eos Biotechnology
upon the achievement of certain milestones.
On March 31, 2000, we entered into a technology access agreement with IDM,
S.A., relating to the development of certain of our non-HuMAb-Mouse antibody-
based products. Under the terms of the technology access agreement, we are
required to pay IDM $2,000 upon the effective date of a definitive unit purchase
agreement which we anticipate will occur during the second quarter of 2000. In
addition, we are required to purchase additional equity in IDM, or a comparable
interest in a new jointly owned entity to fund up to an additional $5,000 in the
event IDM does not complete a public or private financing of at least $7,000 on
or before December 31, 2000. Such an event could cause us to incur losses to the
extent of our investment in IDM. We have no other present commitments or
agreements with respect to any acquisitions of, or investment in, any new
technologies.
To date, our sources of cash have been the proceeds from the sale of our
securities through public and private placements, sales of our products for
research purposes and technology transfer and license fees.
Our current sources of liquidity are our cash, cash equivalents and
marketable securities, interest and dividends earned on such cash, cash
equivalents and marketable securities, sales of our products for research and
contract and licensing revenues. We believe that under existing operating plans
our current sources of liquidity will be sufficient to meet anticipated cash
requirements for the foreseeable future.
We lease approximately 43,000 square feet of laboratory, clinical trial
production and office space in a modern facility on a research campus in
Annandale, New Jersey, that was developed by Exxon Research and Engineering
Company as its corporate research headquarters. The term of the lease expires on
September 30, 2003, subject to renewal for an additional five years. We believe
that this facility is well
Page 8 of 12
<PAGE>
MEDAREX, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
(Dollars in thousands)
Liquidity and Capital Resources (cont'd)
- ----------------------------------------
suited for clinical-grade production of monoclonal antibodies, since we have in
place most utilities required for clinical-grade production of such antibodies,
including a production unit designed to meet cGMP standards. By leasing this
facility and spending modestly to adapt it, we believe that we have preserved a
considerable amount of capital that might otherwise have been used to build a
biopharmaceutical production facility. This facility has a capacity of 10
kilograms of monoclonal antibody production per year. We believe that our
existing facilities are adequate for the production of materials for clinical
trials of our products and for providing the services we offer to our corporate
partners in connection with our human antibody technology. However, we do not
currently have the capability to manufacture our products under development in
large commercial quantities and have no experience in commercial-scale
manufacturing.
In April 2000, we signed a new lease for approximately 57,000 square feet
of laboratory and office space in San Jose, California. This property, leased
for approximately 10 years, will be used by our expanding GenPharm subsidiary.
At March 31, 2000 the aggregate future minimum lease commitments over the
remainder of the lease terms are approximately $6,200. As of March 31, 2000, we
have commitments for approximately $483 of capital expenditures.
Upon exhaustion of our current cash reserves, our continued operations will
depend on our ability to raise additional funds through equity or debt financing
and/or enter into licensing or joint development agreements, including
collaborative research and development arrangements with large pharmaceutical
companies pursuant to which certain costs associated with the regulatory
approval process for certain of our products would be borne by the licensees or
joint developers. There can be no assurance that these sales or financing
activities will be successful.
Page 9 of 12
<PAGE>
MEDAREX, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
(Dollars in thousands)
Results of Operations
- ---------------------
Three months ended March 31, 1999 and 2000
- ------------------------------------------
Revenue for the three-month period ended March 31, 2000 decreased by
$3,461, a 62% decrease from the three-month period ended March 31, 1999. The
decrease relates principally to a $4,000 milestone payment from Centocor, Inc.
received in January 1999, partially offset by $1,500 of contract and license
revenues from Kirin Brewery Co., Ltd. in the first quarter of 2000.
Cost of sales increased by $1 during the first quarter of 2000, a 4%
increase as compared to the quarter ended March 31, 1999.
Research and development expenses decreased $120 during the quarter ended
March 31, 2000, a 2% decrease as compared to the same period in 1999. The
decrease is principally due to lower clinical trial expenses reflecting the
transfer of certain projects to Scil Biomedicals GmbH and IDM, S.A.
General and administrative expenses increased by $1,605 for the three-month
period ending March 31, 2000, a 125% increase from the same period in 1999. The
increase is primarily attributable to increased business development costs and
shareholder relation expenses. Included in shareholders relation expenses are
non-cash charges for warrants issued to a consulting firm of $691.
Interest and dividend income increased by $1,699 for the three-months
ending March 31, 2000, a 636% increase as compared to the quarter ended March
31, 1999. The increase reflects interest earned on the proceeds received from
the March 3, 2000 follow-on public offering of our Common Stock. We sold
2,399,204 shares of Common Stock and received net proceeds of approximately
$388,000.
Interest expense decreased by $1 for the three-months ending March 31,
2000, as compared to the same quarter in 1999.
We have incurred and will continue to incur significant costs in the area
of research and development, including pre-clinical and clinical trials as our
products develop. Administrative costs are also expected to increase with the
increase of administrative activities and the creation of a marketing
organization.
Page 10 of 12
<PAGE>
Part II - Other Information
Item 6. Exhibits and reports on Form 8-K (need info from Dwight)
(a) Reports on Form 8-K:
Form 8-K filed on January 26, 2000 re: filing of certain material
contracts.
Form 8-K filed on January 18, 2000 re: filing of Registration Statement for
public offering of common stock.
Form 8-K filed on February 14, 2000 re: filing of a material contract.
Form 8-K filed on March 1, 2000 re: re-filing of certain material contract.
Form 8-K filed on March 3, 2000 re: completion of public offering of common
stock.
Form 8-K filed on March 7, 2000 re: exercise of over-allotment option by
Registrant's underwriters in connection with public offering of common
stock.
(b) Exhibits
10.103 Agreement of lease dated April 21, 2000 between Liman Realty Corp.
and the Registrant.
27.1 Financial Data Schedule
Page 11 of 12
<PAGE>
Signatures
----------
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.
MEDAREX, INC.
-------------
(Registrant)
/s/ Michael A. Appelbaum
Date: May 12, 2000 By ________________________________
Michael A. Appelbaum
Executive Vice President
Finance and Administration
(Principal Financial and
Accounting Officer)
Page 12 of 12
<PAGE>
521 Cottonwood Drive, Milpitas, California
STANDARD SINGLE TENANT NNN LEASE
W I T N E S S E T H
-------------------
This lease ("Lease") is entered into by and between Limar Realty Corp. #22, a
California corporation ("Landlord") and Medarex, Inc., a New Jersey corporation
("Tenant"). For and in consideration of the payment of rents and the
performance of the covenants herein set forth by Tenant, Landlord does lease to
Tenant and Tenant accepts the Premises described below subject to the agreements
herein contained.
<TABLE>
<CAPTION>
1. BASIC LEASE TERMS
<S> <C> <C>
a. DATE OF LEASE: March 14, 2000
b. TENANT: Medarex, Inc.
Address (of the Premises): 521Cottonwood Drive, Milpitas, California
Address (for Notices): (Please provide if other than Premises.)
c. LANDLORD: Limar Realty Corp. #22
Address (for Notices): 1730 S. El Camino Real
Suite 400
San Mateo, California 94402
Attn: Thomas A. Numainville
d. TENANT'S USE OF PREMISES: General office and laboratory, biotechnology/pharmaceutical research and
development, manufacturing and warehousing
e. PREMISES AREA: 57,206 Rentable Square Feet
f. INSURING PARTY: Landlord is the "Insuring Party" unless otherwise stated herein.
g. TERM (inclusive): Commencement Date: See (P)30. ("Commencement Date")
Expiration Date: July 31, 2010 ("Expiration Date")
Number of Months: Approximately 116
h. INITIAL BASE RENT: One Hundred Twelve Thousand Five Hundred Twenty and
95/100 Dollars ($112,520.95) per month
i. BASE RENT ADJUSTMENT:
Step Increase. The step adjustment provisions apply for the periods shown below:
Monthly Base Rent
Periods (inclusive) Amount
8/1/2001 - 7/31/2002 $115,192.47
8/1/2002 - 7/31/2003 $117,926.91
8/1/2003 - 7/31/2004 $120,730.01
8/1/2004 - 7/31/2005 $123,607.47
8/1/2005 - 7/31/2006 $126,553.58
8/1/2006 - 7/31/2007 $129,574.06
8/1/2007 - 7/31/2008 $132,668.90
8/1/2008 - 7/31/2009 $135,838.11
8/1/2009 - 7/31/2010 $139,093.14
j. TOTAL TERM BASE RENT (assuming an exact 116 month Lease Term): $14,594,383.40
k. PREPAID BASE RENT: $112,520.95
</TABLE>
-1-
<PAGE>
<TABLE>
<CAPTION>
1. BASIC LEASE TERMS
<S> <C> <C>
l. SECURITY DEPOSIT: $450,083.80
m. BROKER(S): Technology Commercial, Inc. and BT commercial Real Estate (Tenant)
n. GUARANTOR(S): None
o. EXHIBITS: Exhibits lettered "A" through "C" are attached hereto and made a part hereof.
</TABLE>
2. PREMISES
a. Premises. Landlord leases to Tenant the premises described in
(P)1. and in Exhibit A (the "Premises"). The term "Premises"
---------
includes all the land and improvements (including buildings,
landscaping, parking lot, etc.) as described on Exhibit A.
---------
Subject to any additional work Landlord has agreed herein to do,
Tenant hereby accepts the Premises in their condition existing
as of the date of the execution hereof, subject to all
applicable zoning, municipal, county and state laws, ordinances
and regulations governing and regulating the use of the
Premises, and accepts this Lease subject thereto and to all
matters disclosed thereby and by any exhibits attached hereto.
Tenant acknowledges that neither Landlord nor Landlord's Broker
has made any representation or warranty as to the suitability of
the Premises for the conduct of Tenant's business. Tenant agrees
with the square footage specified for the Premises in (P)1. and
will not hereafter challenge such determination and agreement.
The rental payable by Tenant pursuant to this Lease is not
subject to revision in the event of any discrepancy in the
rentable square footage for the Premises.
b. Acceptance; Quiet Enjoyment. Landlord represents that it is the
fee simple owner of the Premises and has full right and
authority to make this Lease. Landlord hereby leases the
Premises to Tenant and Tenant hereby accepts the same from
Landlord, in accordance with the provisions of this Lease.
Landlord covenants that Tenant shall have peaceful and quiet
enjoyment of the Premises during the Term (as defined below) of
this Lease.
3. Term. The term ("Term") of this Lease is for the period that commences
at 12:01 a.m. on the Commencement Date and expires at 11:59 p.m. on the
Expiration Date. Landlord shall use commercially reasonable efforts to
deliver the Premises to Tenant on or about July 1, 2000. Provided
Landlord uses commercially reasonable efforts as set forth above, then
if Landlord, for any reason, cannot deliver possession of the Premises
to Tenant on or before the Commencement Date, this Lease shall not be
void or voidable, nor shall Landlord be liable to Tenant for any loss or
damage resulting from such delay. In that event, however, there shall be
an abatement of Rent (as defined below) covering the period between the
Commencement Date and the date when Landlord delivers possession to
Tenant, and all other terms and conditions of this Lease shall remain in
full force and effect. If a delay in possession is caused by Tenant's
failure to perform any obligation in accordance with this Lease, the
Term shall commence as of the Commencement Date, and there shall be no
reduction of Rent between the Commencement Date and the time Tenant
takes possession.
4. RENT
a. Base Rent. Tenant shall pay Landlord in lawful money of the
United States, without notice, demand, offset or deduction, rent
in the amount(s) set forth in (P)1. which shall be payable in
advance on the first day of each and every calendar month ("Base
Rent") provided, however, the first month's Base Rent is due and
payable upon execution of this Lease. Unless otherwise specified
in writing by Landlord, all installments of Base Rent shall be
payable at Limar Realty Corp. #22, Department #44294, P.O. Box
44000, San Francisco, CA 94144-4294. Base Rent for any partial
month at the beginning or end of this Lease will be prorated in
accordance with the number of days in the subject month.
For purposes of Section 467 of the Internal Revenue Code, the
parties to this Lease hereby agree to allocate the stated Base
Rent provided herein to the periods which correspond to the
actual Base Rent payments as provided under the terms and
conditions of this Agreement.
b. Step Increase. The Base Rent shall be increased periodically to
the amounts and at the times set forth in (P)1.i.
c. Rent Without Offset and Late Charge. All Rent shall be paid
without prior demand or notice and without any deduction or
offset whatsoever. All Rent shall be paid in lawful currency of
the United States of America. Tenant acknowledges that late
payment by Tenant to Landlord of any Rent will cause Landlord to
incur costs not contemplated by this Lease, the exact amount of
such cost being extremely difficult and impracticable to
ascertain. Such costs include, without limitation, processing
and accounting charges and late charges that may be imposed on
Landlord by the terms of any encumbrance or note secured by the
Premises. Therefor, if any Rent is not received by Landlord
within five (5) days of its due date, Tenant shall pay to
Landlord a late charge equal to six percent (6%) of such overdue
payment. Landlord and Tenant hereby agree that such late charge
represents a fair and reasonable estimate of the costs that
Landlord will incur by reason of any such late payment and that
the late charge is in addition to any and all remedies available
to the Landlord and that the assessment and/or collection of the
late charge shall not be deemed a waiver of any other default.
Additionally, all such delinquent Rent or other sums, plus this
late charge, shall bear
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interest from the due date thereof at the lesser of ten percent
(10%) per annum or the maximum legal interest rate permitted by
law. Any payments of any kind returned for insufficient funds
will be subject to an additional handling charge of $25.00, and
thereafter, Landlord may require Tenant to pay all future
payments of Rent or other sums due by cashier's check.
d. Prepaid Base Rent. Upon the execution of this Lease, Tenant
shall pay to Landlord the Prepaid Base Rent set forth in 1., and
such Prepaid Base Rent shall be applied toward the Base Rent due
for the first month of the Term for which Rent is due. Landlord
shall be entitled to immediately endorse and cash Tenant's
Prepaid Base Rent.
e. Rent. The term "Rent" as used in this Lease shall refer to Base
Rent, Prepaid Base Rent, Real Property Taxes, Operating
Expenses, Insurance Costs, repairs and maintenance costs,
utilities, late charges and other similar charges payable by
Tenant pursuant to this Lease either directly to Landlord or
otherwise.
5. OPERATING EXPENSES
a. Payment by Tenant. During the Term of this Lease Tenant shall
pay to Landlord, as additional Rent, on a monthly basis one
hundred percent (100%) of the Operating Expenses.
b. Operating Expenses. The term "Operating Expenses" shall mean all
expenses, costs and disbursements (not specifically excluded
from the definition of Operating Expenses below) of every kind
and nature which Landlord shall pay or become obligated to pay
because of or in connection with the ownership, maintenance,
repair and operation of the Premises. Operating Expenses shall
include, but not be limited to, the following:
1) Wages and salaries of all employees engaged in the
operation, maintenance and security of the Premises,
including taxes, insurance and benefits relating
thereto; and the rental cost and overhead of any office
and storage space used to provide such services.
2) All supplies and materials used in the operation, repair
or maintenance of the Premises.
3) Cost of all utilities, including surcharges, for the
Premises, including the cost of water, power and
lighting which are not separately billed to and paid for
by Tenant.
4) Cost of all maintenance and service agreements for the
Premises and the equipment thereon, including but not
limited to, security services, exterior window cleaning,
janitorial service, engineers, gardeners and trash
removal services.
5) All Insurance Costs, as such term is defined in (P)16.
6) Cost of all repairs and general maintenance (excluding
repairs and general maintenance paid by proceeds of
insurance or by Tenant or other third parties.
7) A reasonable management fee for the property management
of the Premises not to exceed three percent (3%) of
Rent.
8) The costs of any additional services not provided to the
Premises at the Commencement Date but thereafter
provided by Landlord in its management of the Premises.
9) The cost of any capital improvements made to the
Premises after the date of this Lease, with such cost
thereof to be amortized over the useful life of the
improvements as reasonably determined by Landlord.
10) Real Property Taxes as that term is defined in (P)11.c.
11) Assessments, dues and other amounts payable pursuant to
the CC&R's described in (P)7.c.
c. Operating Expenses shall not include:
1) Costs paid for directly by Tenant or other tenants;
2) Costs incurred in connection with the financing, sale or
acquisition of the Premises or any portion thereof;
3) Costs incurred in leasing or procuring tenants
(including without limitation, lease commissions,
advertising expenses, attorneys' fees and expenses of
renovating space for tenants);
4) Executive salaries of off-site personnel employed by
Landlord except for the charge (or pro rata share) of
the property manager of the Premises;
5) Subject to the provisions of (P)5.b.9) above,
depreciation on the Building or other improvements on
the Premises;
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6) Legal expenses for disputes with Tenant and any other
professional fees of attorneys, auditors or consultants
not incurred in connection with the normal maintenance
and operation of the Premises;
7) Costs incurred that are reimbursed by Tenant, or third
parties, including insurers;
8) Expenses for repair or replacement covered by
warranties, and any costs due to casualty (except for
the insurance deductible) or condemnation;
9) Rentals and other payments by Landlord under any ground
lease or other lease underlying the Lease, and interest,
principal, points and other fees on debt or amortization
of any debt secured in whole or part by all or any
portion of the Premises;
10) Repairs or replacements caused by Landlord's gross
negligence or the gross negligence of Landlord's
employees or agents;
11) Net income, franchise, capital stock, estate or
inheritance taxes or taxes which are the personal
obligation of Landlord;
12) Landlord's charitable or political contributions;
13) Payments to subsidiaries and affiliates of Landlord for
services to the Premises for supplies or other materials
to the extent that the cost of such services, supplies
or materials exceed the cost which would have been paid
had the services, supplies or materials been provided by
unaffiliated parties on a competitive basis (provided,
however, any fee for management services paid to an
affiliate of Landlord shall be in the amount set forth
in (P)5.b.7);
14) Any obligation to perform or to pay for costs incurred
in connection with the presence of any Hazardous
Material in, on, under or about the Premises except to
the extent caused by the release or emission of the
Hazardous Material in question by Tenant; or
15) Costs of insurance covering Tenant's personal property.
d. Extraordinary Services. Tenant shall pay within ten (10) days of
receipt of an invoice from Landlord the cost of additional or
extraordinary services provided to Tenant at Tenant's request
and not paid or payable by Tenant pursuant to other provisions
of this Lease.
e. Impound. Landlord reserves the right, at Landlord's option, to
estimate the annual cost of Operating Expenses performed by
Landlord ("Projected Operating Expenses") and to require same to
be paid in advance. Tenant shall pay to Landlord, monthly in
advance as additional Rent, one-twelfth (1/12) of the Projected
Operating Expenses.
f. Adjustment.
1) Accounting. Within ninety (90) days (or as soon
thereafter as possible) after the close of each calendar
year or portion thereof of occupancy, Landlord shall
provide Tenant a statement of such year's actual
Operating Expenses showing the actual Operating Expenses
compared to the Projected Operating Expenses. If the
actual Operating Expenses are more than the Projected
Operating Expenses then Tenant shall pay Landlord,
within thirty (30) days of receipt of a bill therefor,
the difference. If the actual Operating Expenses are
less than the Projected Operating Expenses, then Tenant
shall receive a credit against future Operating Expenses
payments equal to the difference; provided, that in the
case of an overpayment for the final lease year of the
Term, Landlord shall credit the difference against any
sums due from Tenant to Landlord in accordance with the
terms of this Lease; and if no sums are due and unpaid,
shall promptly refund the amount to Tenant.
2) Tenant's Right to Audit. Within sixty (60) days after
receipt of Landlord's statement setting forth actual
Operating Expenses (the "Statement"), Tenant shall have
the right to audit at Landlord's local offices, at
Tenant's expense, Landlord's accounts and records
relating to Operating Expenses. Such audit shall be
conducted by a certified public accountant approved by
Landlord, which approval shall not be unreasonably
withheld. If such audit reveals that Landlord has
overcharged Tenant, the amount overcharged shall be paid
to Tenant within thirty (30) days after the audit is
concluded. If such audit reveals that Landlord has
undercharged Tenant, the amount of undercharge shall be
paid by Tenant to Landlord within 30 days after the
audit is conducted. In addition, if the Statement
exceeds the actual Operating Expenses which should have
been charged to Tenant by more than six percent (6%),
the cost of the audit shall be paid by Landlord.
3) Proration. Tenant's liability to pay Operating Expenses
shall be prorated on the basis of a 365 (or 366, as the
case may be) day year to account for any fractional
portion of a year included at the commencement or
expiration of the Term of this Lease.
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4) Survival. Landlord and Tenant's obligations to pay for
or credit any increase or decrease in payments pursuant
to this (P)5. shall survive this Lease.
g. Failure to Pay. Failure of Tenant to pay any of the charges
required to be paid under this (P)5. beyond applicable notice
and cure periods shall constitute a material default and breach
of this Lease and Landlord's remedies shall be as specified in
(P)21.
6. SECURITY DEPOSIT. Upon execution of this Lease, Tenant shall deposit a
security deposit ("Security Deposit") in the amount set forth in (P)1.
with Landlord. If Tenant is in default beyond applicable notice and cure
periods, Landlord can (but without any requirement to do so) use the
Security Deposit or any portion of it to cure the default or to
compensate Landlord for any damages sustained by Landlord resulting from
Tenant's default. Upon demand, Tenant shall immediately pay to Landlord
a sum equal to the portion of the Security Deposit expended or applied
by Landlord to restore the Security Deposit to its full amount. In no
event will Tenant have the right to apply any part of the Security
Deposit to any Rent due under this Lease. Landlord's obligations with
respect to the Security Deposit are those of a debtor and not a trustee,
and Landlord can commingle the Security Deposit with Landlord's general
funds. Landlord shall not be required to pay Tenant interest on the
Security Deposit. Each time the Base Rent is increased, Tenant shall
deposit additional funds with Landlord sufficient to increase the
Security Deposit to an amount which bears the same relationship to the
Base Rent as the initial Security Deposit bore to the initial Base Rent.
If Tenant is not in default at the expiration or termination of this
Lease and has fully complied with the provisions of (P)9. and
(P)13.d.6), Landlord shall return the Security Deposit to Tenant.
7. USE OF PREMISES
a. Tenant's Use. Tenant shall use the Premises solely for the
purposes stated in (P)1. and for no other purposes without
obtaining the prior written consent of Landlord. Tenant
acknowledges that neither Landlord nor any agent of Landlord has
made any representation or warranty with respect to the Premises
or with respect to the suitability of the Premises to the
conduct of Tenant's business, nor has Landlord agreed to
undertake any modification, alteration or improvement to the
Premises, except as provided in writing in this Lease. Tenant
acknowledges that Landlord may from time to time, at its sole
discretion, make such modifications, alterations, deletions or
improvements to the Premises as Landlord may reasonably deem
necessary or desirable, without compensation or notice to
Tenant. Landlord, however, shall not make any modifications,
alterations, deletions or improvements to the Premises that
unreasonably interfere with Tenant's use of the Premises or
unreasonably decrease Tenant's rights or unreasonably increase
Tenant's obligations under the Lease. Tenant shall promptly
comply with all laws, statutes, ordinances, orders and
governmental regulations now or hereafter existing affecting the
Premises. Tenant shall not do or permit anything to be done in
or about the Premises or bring or keep anything in the Premises
that will in any way increase the premiums paid by Landlord on
its insurance related to the Premises. Tenant will not perform
any act or carry on any practices that may injure the Premises.
Tenant shall not use the Premises for sleeping, washing clothes,
cooking or the preparation, manufacture or mixing of anything
that emits any objectionable odor, noises, vibrations or lights
onto such other tenants. If sound insulation is required to
muffle noise produced by Tenant on the Premises, Tenant at its
own cost shall provide all necessary insulation. Tenant shall
not do anything on the Premises which will overload any existing
parking or service to the Premises. Pets and/or animals of any
type (other than seeing eye dogs and laboratory animals) shall
not be kept on the Premises. Tenant covenants that it will not
interfere with other tenants' quiet enjoyment of their premises.
b. Rules and Regulations. Tenant shall comply with and use the
Premises in accordance with the Rules and Regulations attached
hereto as Exhibit B and to any reasonable modifications to such
---------
Rules and Regulations as Landlord may adopt from time to time,
provided however that if any rule or regulation is in conflict
with any term, covenant or condition of this Lease, this Lease
shall prevail. In addition, no such rule or regulation, or any
subsequent amendment thereto adopted by Landlord, shall in any
material way alter, reduce or adversely affect any of Tenant's
rights or materially enlarge Tenant's obligations under this
Lease.
c. CC&R's. Tenant agrees that this Lease is subject and subordinate
to the Covenants, Conditions and Restrictions, a copy of which
is attached hereto as Exhibit C, as they may be amended from
time to time ("CC&R's"), and further agrees that the CC&R's are
an integral part of this Lease. Throughout the Term or any
extension thereof, notwithstanding any other provision hereof,
Tenant shall faithfully and timely assume and perform all
obligations of Landlord and/or Tenant under the CC&R's and any
modifications or amendments thereto, including the payment of
any periodic or special dues or assessments against the
Premises. Such dues and assessments shall be included within the
definition of Operating Expenses pursuant to (P)5.b.11), and
Tenant shall pay such amounts as further set forth in (P)5.
Tenant shall hold Landlord, its subsidiaries, shareholders,
directors, officers, agents and employees harmless and indemnify
Landlord, its subsidiaries, shareholders, directors, officers,
agents and employees against any loss, expense and damage,
including attorneys' fees and costs, arising out of the failure
of Tenant to perform or comply with the CC&R's.
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8. EMISSIONS; STORAGE, USE AND DISPOSAL OF WASTE
a. Emissions. Tenant shall not:
1) Permit any vehicle on the Premises to emit exhaust which
is in violation of any governmental law, rule,
regulation or requirement;
2) Except as permitted by law, discharge, emit or permit to
be discharged or emitted, any liquid, solid or gaseous
matter, or any combination thereof, into the atmosphere
or on, into or under the Premises, any building or other
improvements of which the Premises are a part, or the
ground or any body of water which matter, as reasonably
determined by Landlord or any governmental entity, does
or may pollute or contaminate the same, or is, or may
become, radioactive or does, or may, adversely affect
the (a) health or safety of persons, wherever located,
whether on the Premises or anywhere else, (b) condition,
use or enjoyment of the Premises or any other real or
personal property, whether on the Premises or anywhere
else, or (c) Premises or any of the improvements thereto
including buildings, foundations, pipes, utility lines,
landscaping or parking areas;
3) Produce, or permit to be produced, any intense glare,
light or heat;
4) Create, or permit to be created, any sound pressure
level which will interfere with the quiet enjoyment of
any real property outside the Premises, or which will
create a nuisance or violate any governmental law, rule,
regulation or requirement;
5) Create, or permit to be created, any vibration that is
discernible outside the Premises; or
6) Transmit, receive or permit to be transmitted or
received, any electromagnetic, microwave or other
radiation which is or may be harmful or hazardous to any
person or property in, or about the Premises, or
anywhere else.
b. Storage and Use.
1) Storage. Subject to the uses permitted and prohibited to
Tenant under this Lease, Tenant shall store in
appropriate leak proof containers all solid, liquid or
gaseous matter, or any combination thereof, which
matter, if discharged or emitted into the atmosphere,
the ground or any body of water, does or may (a) pollute
or contaminate the same, or (b) adversely affect the (i)
health or safety of persons, whether on the Premises or
anywhere else, (ii) condition, use or enjoyment of the
Premises or any real or personal property, whether on
the Premises or anywhere else, or (iii) Premises.
2) Use. In addition, without Landlord's prior written
consent, Tenant shall not use, store or permit to remain
on the Premises any solid, liquid or gaseous matter
which is, or may become radioactive. If Landlord does
give its consent, Tenant shall store the materials in
such a manner that no radioactivity will be detectable
outside a designated storage area and Tenant shall use
the materials in such a manner that (a) no real or
personal property outside the designated storage area
shall become contaminated thereby and (b) there are and
shall be no adverse effects on the (i) health or safety
of persons, whether on the Premises or anywhere else,
(ii) condition, use or enjoyment of the Premises or any
real or personal property thereon or therein, or (iii)
Premises or any of the improvements thereto or thereon
provided, however, Tenant shall have the right to use
those Hazardous Materials used by Tenant in the ordinary
course of its business operations provided such use
shall be in compliance with all environmental laws.
3) Hazardous Materials. Subject to the uses permitted and
prohibited to Tenant under this Lease, Tenant shall
store, use, employ, transport and otherwise deal with
all Hazardous Materials (as defined below) employed on
or about the Premises in accordance with all federal,
state, or local law, ordinances, rules or regulations
applicable to Hazardous Materials in connection with or
respect to the Premises.
c. Disposal of Waste.
1) Refuse Disposal. Tenant shall not keep any trash,
garbage, waste or other refuse on the Premises except in
sanitary containers and shall regularly and frequently
remove same from the Premises. Tenant shall keep all
incinerators, containers or other equipment used for
storage or disposal of such materials in a clean and
sanitary condition.
2) Sewage Disposal. Tenant shall properly dispose of all
sanitary sewage and shall not use the sewage disposal
system (a) for the disposal of anything except sanitary
sewage or (b) amounts in excess of the lesser of: (i)
that reasonably contemplated by the uses permitted under
this Lease or (ii) that permitted by any governmental
entity. Tenant shall keep the sewage disposal system
free of all obstructions and in good operating
condition.
3) Disposal of Other Waste. Tenant shall properly dispose
of all other waste or other matter delivered to, stored
upon, located upon or within, used on, or removed from,
the Premises
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in such a manner that it does not, and will not,
adversely affect the (a) health or safety of persons,
wherever located, whether on the Premises or elsewhere,
(b) condition, use or enjoyment of the Premises or any
other real or personal property, wherever located,
whether on the Premises or anywhere else, or (c)
Premises or any of the improvements thereto or thereon
including buildings, foundations, pipes, utility lines,
landscaping or parking areas.
d. Information. Tenant shall make available at the Premises for
review by Landlord during ordinary business hours, and upon
request provide Landlord with copies of, any and all information
regarding Hazardous Materials in the Premises, including copies
of all filings and reports to governmental entities at the time
they are originated, and any other information requested by
Landlord. In the event of any accident, spill or other incident
involving Hazardous Materials which is required to be reported
to a governmental authority under law, Tenant shall immediately
report the same to Landlord and supply Landlord with all
information and reports with respect to the same. All
information described herein shall be provided to Landlord
regardless of any claim by Tenant that it is confidential or
privileged.
e. Compliance with Law. Notwithstanding any other provision in this
Lease to the contrary, Tenant shall comply with all laws,
statutes, ordinances, regulations, rules and other governmental
requirements now or hereafter existing in complying with its
obligations under this Lease, and in particular, relating to
Tenant's or its agents' storage, use and disposal of Hazardous
Materials, provided, however, Tenant shall not be required to
comply with or cause the Premises to comply with any laws, rules
or regulations requiring alterations or improvements unless the
compliance with any of the foregoing is necessitated solely due
to Tenant's particular use of the Premises.
f. Indemnity. Tenant hereby agrees to indemnify, defend and hold
Landlord, its agents, employees, lenders, shareholders,
directors, representatives, successors and assigns harmless from
and against any and all actions, causes of action, losses,
damages, costs, claims, expenses, penalties, obligations or
liabilities of any kind whatsoever (including but not limited to
reasonable attorneys' fees) arising out of or relating to any
Hazardous Materials employed, used, transported across, or
otherwise dealt with by Tenant (or invitees, or persons or
entities under the control of Tenant) in connection with or with
respect to the Premises. Notwithstanding any of the provisions
of this Lease, the indemnity obligation of Tenant pursuant to
this (P)8.f. shall survive the termination of this Lease and
shall relate to any occurrence as described in this (P)8.f.
occurring in connection with this Lease. Landlord hereby agrees
to indemnify, defend and hold Tenant harmless from and against
any and all actions, causes of action, losses, damages, costs,
claims, expenses, penalties, obligations or liabilities of any
kind whatsoever (including reasonable attorneys' fees) arising
out of or relating to (i) Hazardous Materials employed, used,
transported to the Premises, for which the Premises are a part
thereof, by Landlord, its agents or employees or (ii) Hazardous
Materials existing on, in or under the Premises as of the date
of this Lease. For purposes of this Lease the term "Hazardous
Materials" shall mean any hazardous, toxic or dangerous waste,
substance or material, pollutant or contaminant, as defined for
purposes of the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 (42 U.S.C. Sections 9601
et seq.), as amended, or the Resource Conservation and Recovery
Act (42 U.S.C. Sections 6901 et seq.), as amended, or any other
federal, state, or local law, ordinance, rule or regulation
applicable to the Premises, or any substance which is toxic,
explosive, corrosive, flammable, infectious, radioactive,
carcinogenic, mutagenic, or otherwise hazardous, or any
substance which contains gasoline, diesel fuel or other
petroleum hydrocarbons, polychlorinated biphenyls (PCB's), or
radon gas, urea formaldehyde, asbestos or lead. Tenant shall not
be liable for any losses, costs, claims, liabilities and damages
(including attorneys' and consultants' fees) of every type and
nature, directly or indirectly arising out of or in connection
with any Hazardous Material present at any time on or about the
Premises, or the soil, air, improvements, groundwater or surface
water thereof, or the violation of any laws, orders or
regulations, relating to any such Hazardous Material, except to
the extent that any of the foregoing actually results from the
release or emission of Hazardous Material by Tenant or its
agents or employees in violation of applicable environmental
laws.
9. SIGNS AND COMMUNICATIONS ANTENNAE. Tenant shall not place any sign or
communications antennae upon or adjacent to the Premises, except that
Tenant may, with Landlord's prior written consent, which consent shall
not be unreasonably withheld, install (but not on the roof) such signs
as are reasonably required to indicate Tenant's company name or logo
provided such signs are in compliance with Landlord's standard sign
criteria or install communications antennae used exclusively by Tenant
provided such signs and/or communications antennae are in compliance
with all applicable governmental requirements and the CC&R's. Tenant
shall have the right to install signage on the existing monument sign
and on the exterior of the building subject to the approval of Landlord
and the City of Milpitas. The installation of any sign or communications
antennae on or adjacent to the Premises by or for Tenant shall be
subject to the provisions of (P)13. (Repairs and Maintenance). Tenant
shall remove any sign or communications antennae placed on or adjacent
to the Premises by Tenant upon the expiration of the Term or sooner
termination of this Lease, and Tenant shall repair any damage or injury
to the Premises caused thereby, all at Tenant's expense. If any signs or
communications antennae are not removed, or necessary repairs not made,
Landlord shall have the right to remove the signs or communications
antennae and repair any damage or injury to the Premises at Tenant's
sole cost and expense. Notwithstanding any other provision of this Lease
to the contrary, Landlord reserves all rights to the use of the roof and
the right to install and receive all revenues from the installation of
such other signs or communications antennae on the Premises, including
the roof, as do not unreasonably interfere with the conduct of Tenant's
business within the Premises.
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10. PERSONAL PROPERTY TAXES. Tenant shall pay at least ten (10) days prior
to delinquency all taxes assessed against and levied upon Tenant owned
leasehold improvements, trade fixtures, furnishings, equipment and all
personal property of Tenant contained in the Premises or elsewhere. When
possible, Tenant shall cause its leasehold improvements, trade fixtures,
furnishings, equipment and all other personal property to be assessed
and billed separately from the real property of Landlord. If any of
Tenant's said personal property shall be assessed with Landlord's real
property, Tenant shall pay Landlord the taxes attributable to Tenant
within ten (10) days after receipt of a written statement setting forth
the taxes applicable to Tenant's property.
11. REAL PROPERTY TAXES
a. Payment of Taxes. Landlord shall pay the Real Property Taxes, as
defined in (P)11.c., during the Term of this Lease. Subject to
(P)11.b., Tenant shall promptly reimburse Landlord according to
(P)5. for such Real Property Taxes paid by Landlord.
b. Advance Payment. In order to ensure payment when due and before
delinquency of any or all Real Property Taxes, Landlord shall
estimate the current Real Property Taxes applicable to the
Premises, and require Tenant to pay monthly in advance with the
payment of the Base Rent an amount which, over the number of
months remaining before the month in which the applicable tax
installment would become delinquent, would provide a fund large
enough to fully discharge before delinquency the estimated
installment of Real Property Taxes to be paid. When the actual
amount of the applicable tax bill is known, Landlord may, but is
not required to, adjust the amount of such equal monthly advance
payment so as to provide the funds needed to pay the applicable
Real Property Taxes before delinquency. If the amounts paid to
Landlord by Tenant under the provisions of this (P)11. are
insufficient to discharge the obligations of Tenant to pay such
Real Property Taxes as the same become due, Tenant shall pay to
Landlord, upon Landlord's demand, such additional sums as are
necessary to pay such obligations. All moneys paid to Landlord
under this (P)11. may be intermingled with other moneys of
Landlord and shall not bear interest.
c. Definition of "Real Property Taxes". As used herein, the term
"Real Property Taxes" shall include any form of real estate tax
or assessment, general, special, ordinary or extraordinary, and
any license fee, commercial rental tax, improvement bond or
bonds, levy or tax or other fee, charge, or excise which may be
imposed as a substitute for any of the foregoing (other than
inheritance, personal income or estate taxes) imposed upon the
Premises by any authority having the direct or indirect power to
tax, including any city, county, state or federal government, or
any school, agricultural, sanitary, fire, street, drainage or
other improvement district thereof, levied against any legal or
equitable interest of Landlord in the Premises, Landlord's right
to rent or other income therefrom, and/or Landlord's business of
leasing the Premises. The term "Real Property Taxes" shall also
include any tax, fee, levy, assessment or charge, or any
increase therein, imposed by reason of events occurring, or
changes in applicable law taking effect, during the Term of this
Lease, including but not limited to a change in the ownership of
the Premises or in the improvements thereon, the execution of
this Lease, or any modification, amendment or transfer thereof,
and whether or not contemplated by the parties hereto. Real
Property Taxes shall not include and Tenant shall not be
required to pay any portion of any tax or assessment expense or
any increase therein in excess of the amount which would be
payable if such tax or assessment expense were paid in
installments over the longest possible term. Tenant may, at
Tenant's sole cost and expense, in Tenant's own name and on
Tenant's own behalf, or in the name and on behalf of Landlord,
in good faith, contest any Real Property Taxes, and Landlord
shall cooperate fully with Tenant in any such contest.
12. UTILITIES. Tenant shall pay for all water, gas, heat, light, power,
telephone, trash disposal and other utilities and services supplied to
the Premises, together with any taxes thereon. If any such services are
not separately metered to Tenant, Tenant shall pay a reasonable
proportion, to be determined by Landlord, of all charges jointly metered
with other premises.
13. REPAIRS AND MAINTENANCE
a. Tenant's Obligations.
1) General. Tenant shall, at Tenant's sole cost and expense
and at all times, contract for janitorial services and
supplies and keep the Premises and every part thereof in
good order, condition and repair, structural and non-
structural (whether or not such portion of the Premises
requiring repairs, or the means of repairing same, are
reasonably or readily accessible to Tenant, and whether
or not the need for such repairs occurs as a result of
Tenant's use, any prior use, the elements or the age of
such portion of the Premises), including, without
limiting the generality of the foregoing, all equipment
or facilities serving the Premises, such as plumbing,
heating, air conditioning, ventilating, electrical,
lighting facilities, boilers, fired or unfired pressure
vessels, fire sprinkler and/or standpipe and hose or
other automatic fire extinguishing system, including
fire alarm and/or smoke detection systems and equipment,
fire hydrants, fixtures, walls (interior and exterior),
foundations, ceilings, roofs, floors, windows, doors,
plate glass, skylights, landscaping, driveways, parking
lots, fences, retaining walls, signs, sidewalks and
parkways located in, on, about or adjacent to the
Premises. Tenant shall not cause or permit any Hazardous
Material to be
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spilled or released in, on, under or about the Premises
(including through the plumbing or sanitary sewer
system) and shall promptly, at Tenant's expense, take
all investigatory and/or remedial action reasonably
recommended, whether or not formally ordered or
required, for the cleanup of any contamination of, and
for the maintenance, security and/or monitoring of the
Premises, the elements surrounding same, or neighboring
properties, that was caused or materially contributed to
by Tenant, or pertaining to or involving any Hazardous
Materials and/or storage tank brought onto the Premises
by or for Tenant or under its control. Tenant, in
keeping the Premises in good order, condition and
repair, shall exercise and perform good maintenance
practices. Tenant's obligations shall include
restorations, replacements or renewals when necessary to
keep the Premises and all improvements thereon or a part
thereof in good order, condition and state of repair.
If, inclusive of Tenant's occupancy pursuant to earlier
lease agreement(s) and amendments thereto, Tenant has
occupied the Premises for seven (7) years or more,
Landlord may require Tenant to repaint the exterior of
the buildings on the Premises as reasonably required,
but not more frequently than once every seven (7) years.
Notwithstanding the foregoing, to the extent that
capital expenditures must be made to properly repair,
maintain, or replace any portion of the Premises,
Landlord shall cause such work to be completed and such
capital expenditure shall become an Operating Expense,
and Tenant shall pay the amortized portions of such
Operating Expense as provided in (P)5.b.9) of the Lease.
2) Contracts. Tenant shall, at Tenant's sole cost and
expense, procure and maintain contracts, with copies to
Landlord, in customary form and substance for, and with
contractors specializing and experienced in, the
inspection, maintenance and service of the following
equipment and improvements, if any, located on the
Premises: (i) heating, air conditioning and ventilation
equipment, (ii) boiler, fired or unfired pressure
vessels, (iii) fire sprinkler and/or standpipe and hose
or other automatic fire extinguishing systems, including
fire alarm and/or smoke detection, (iv) landscaping and
irrigation systems, (v) roof covering and drain
maintenance and (vi) asphalt and parking lot
maintenance. Tenant shall keep a detailed preventative
maintenance schedule and log showing the frequency of
maintenance on all HVAC, mechanical, electrical and
other systems of the Premises and provide Landlord with
a copy of same quarterly.
3) As-ls Condition. The parties affirm that Landlord, its
subsidiaries, officers, shareholders, directors, agents
and/or employees have made no representations to Tenant
respecting the condition of the Premises except as
specifically stated herein.
4) Americans with Disabilities Act. Tenant acknowledges
that as of the Commencement Date, the Premises may not
comply with the Americans with Disabilities Act of 1990
("ADA"), and that Landlord shall have no obligation with
respect to any such failure of the Premises to so
comply. Tenant shall, at its cost, at any time during
the Term as required by any applicable governmental
agency having jurisdiction over the Premises, make such
modifications and alterations to the Premises as may be
required in order to fully comply with the provisions of
the ADA, as from time to time amended, and any and all
regulations issued pursuant to or in connection with the
ADA in such a manner as to satisfy the applicable
governmental agency or agencies requiring remediation.
Tenant shall at least ten (10) days prior to the
commencement of any construction in connection with
satisfaction of the ADA, give written notice to Landlord
of its intended commencement of construction together
with sufficient details so as to reasonably disclose to
Landlord the nature of the proposed construction, copies
of any notices received by Tenant from applicable
governmental agencies in connection with the ADA and
such other documents or information as Landlord may
reasonably request. In any event, notwithstanding
anything to the contrary contained in this Lease, prior
to the termination of the Term, Tenant shall, at its
cost, make such modifications and alterations to the
Premises as may be required to comply fully with the ADA
as from time to time amended and any and all regulations
issued thereunder. Tenant shall give the Landlord thirty
(30) days prior written notice as described above in
connection with any such construction. Any and all
construction required to so comply with the ADA shall be
completed by Tenant prior to the expiration of the Term.
b. Landlord's Obligations.
Landlord shall have no obligation, in any manner whatsoever, to
repair and maintain the Premises, or the equipment therein,
whether structural or non structural, all of which obligations
are intended to be that of the Tenant under (P)13.a. hereof.
c. Compliance with Governmental Regulations. Tenant shall, at its
own cost and expense, promptly and properly observe and comply
with all present and future orders, regulations, directions,
rules, laws, ordinances, and requirements of all governmental
authorities (including but not limited to state, municipal,
county and federal governments and their departments, bureaus,
boards and officials) arising from the use or occupancy of, or
applicable to, the Premises or privileges appurtenant to or in
connection with the enjoyment of the Premises. Tenant shall also
comply with all such rules, laws, ordinances and requirements at
the time Tenant makes any alteration, addition or change to the
Premises.
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d. Miscellaneous.
1) Landlord and Tenant shall each do all acts required to
comply with all applicable laws, ordinances and rules of
any public authority relating to their respective
maintenance obligations as set forth herein.
2) Tenant expressly waives the benefits of any statute now
or hereafter in effect which would otherwise afford the
Tenant the right to make repairs at Landlord's expense
or to terminate this Lease because of Landlord's failure
to keep the Premises in good order, condition and
repair. Specifically, Tenant waives the provisions of
California Civil Code Sections 1941 and 1942 with
respect to Landlord's obligations for Tenant
tenantability of the Premises and Tenant's right to make
repairs and deduct the expenses of such repairs from
Rent.
3) Tenant shall not place a load upon any floor of the
Premises which exceeds the load per square foot which
such floor was designed to carry, as determined by
Landlord or Landlord's structural engineer. The cost of
any such determination made by Landlord's structural
engineer shall be paid for by Tenant upon demand.
4) Except as otherwise expressly provided in this Lease,
Landlord shall have no liability to Tenant nor shall
Tenant's obligations under this Lease be reduced or
abated in any manner whatsoever by reason of any
inconvenience, annoyance, interruption or injury to
business arising from Landlord making any repairs or
changes which Landlord is required to make or is
permitted to make by this Lease or by any tenant's lease
or is required by law to make in or to any portion of
the Premises. Landlord shall nevertheless use reasonable
efforts to minimize any interference with Tenant's
business in the Premises.
5) Tenant shall give Landlord prompt notice of any damage
to or defective condition in any part or appurtenance of
the Premises' mechanical, electrical, plumbing, HVAC or
other systems serving, located in or passing through the
Premises. Upon request by Landlord, Tenant shall provide
Landlord with evidence reasonably acceptable to Landlord
of service contracts on such systems.
6) Upon the expiration or early termination of this Lease,
Tenant shall return the Premises to Landlord clean and
in the same condition as on the date Tenant took
possession, except for normal wear and tear and damage
from casualty and condemnation. Any damage to the
Premises, including any structural damage, resulting
from Tenant's use or from the removal of Tenant's
fixtures, furnishings and equipment shall be repaired by
Tenant at Tenant's expense.
7) Landlord may, at Landlord's option, choose to perform
any of the Tenant's obligations in this (P)13.
("Tenant's Obligations") in the event Landlord
reasonably determines that Tenant has failed to properly
perform such obligations. The cost of any such Tenant's
Obligations so performed by Landlord shall be at
Tenant's sole cost and expense. Tenant shall reimburse
Landlord for any such costs incurred by Landlord in the
performance of Tenant's Obligations within ten (10) days
of receipt of a billing from Landlord.
14. ALTERATIONS. Tenant shall not make any alterations to the Premises
without Landlord's prior written consent, which consent shall not be
unreasonably withheld. Tenant may make non-structural alterations
costing less than $25,000 per event without Landlord's consent.
Regardless of whether Landlord's consent for alteration is required,
Tenant must provide Landlord at least fifteen (15) business days prior
to the commencement of any alteration with a complete description of
each such alteration including any building permit drawing(s) and
specifications. Landlord may post notices regarding non-responsibility
in accordance with the laws of the state in which the Premises are
located. All alterations made by Tenant, whether or not subject to the
approval of Landlord, shall be performed by Tenant and its contractors
in a first class workmanlike manner and permits and inspections shall be
obtained from all required governmental entities. Any alterations made
shall remain on and be surrendered with the Premises upon expiration or
termination of this Lease, except that Landlord may elect to require
Tenant to remove some or all of the alterations which Tenant may have
made to the Premises upon the expiration or earlier termination of the
Term by giving Tenant written notice of such election at the time
Landlord consented to such alterations. If Landlord so elects, Tenant
shall at its own cost restore the Premises to the condition designated
by Landlord in its election, before the last day of the Term. Should
Landlord consent in writing to Tenant's alteration of the Premises,
Tenant shall contract with a contractor reasonably approved by Landlord
for the construction of such alterations, shall secure all appropriate
governmental approvals and permits, and shall complete such alterations
with due diligence in compliance with plans and specifications approved
by Landlord. Tenant shall pay all costs for such construction and shall
keep the Premises free and clear of all mechanics' liens which may
result from construction by Tenant.
15. RELEASE AND INDEMNITY. As material consideration to Landlord, Tenant
agrees that Landlord shall not be liable to Tenant for any damage to
Tenant or Tenant's property from any cause, except for damages resulting
from Landlord's or its agents' or contractors' gross negligence or
willful misconduct, and Tenant waives all claims against Landlord for
damage to persons or property arising for any reason, except for damage
resulting directly from Landlord's or its agents' or contractors' gross
negligence or willful misconduct. Except to the extent of the gross
negligence or willful misconduct of Landlord or its agents or
contractors, Tenant shall indemnify and hold Landlord, its subsidiaries,
officers, shareholders, directors,
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agents and employees harmless from all damages including attorneys' fees
and costs arising out of any damage to any person or property occurring
in, on or about the Premises or Tenant's use of the Premises or Tenant's
breach of any term of this Lease.
16. INSURANCE
a. Payment For Insurance. Regardless of whether the Landlord or
Tenant is the Insuring Party, Tenant shall pay for all insurance
for the Premises required under this (P)16. ("Insurance Costs")
either directly or by reimbursement to Landlord as set forth in
this (P)16. Premiums for policy periods commencing prior to or
extending beyond the Lease Term shall be prorated to correspond
to the Lease Term. Payment shall be made by Tenant to Landlord
within thirty (30) days following receipt of an invoice for any
amount due.
b. Liability Insurance.
1) Carried by Tenant. Whether or not Tenant is the Insuring
Party, Tenant shall obtain and keep in force during the
Term of this Lease a commercial general liability policy
of insurance protecting Tenant and Landlord (as an
additional insured) against claims for bodily injury,
personal injury and property damage based upon,
involving or arising out of the ownership, use,
occupancy or maintenance of the Premises and all areas
appurtenant thereto. Such insurance shall be on an
occurrence basis providing single limit coverage in an
amount not less than $5,000,000 per occurrence with an
"Additional Insured-Managers or Landlords of Premises"
endorsement and contain an "Amendment of the Pollution
Exclusion" for damage caused by heat, smoke or fumes
from a hostile fire. The policy shall not contain any
intra-insured exclusions as between insured persons or
organizations, but shall include coverage for liability
assumed under this Lease as an "insured contract" for
the performance of Tenant's indemnity obligations under
this Lease. The limits of said insurance required by
this Lease or as carried by Tenant shall not, however,
limit the liability of Tenant nor relieve Tenant of any
obligation hereunder. All insurance to be carried by
Tenant shall be primary to and not contributory with any
similar insurance carried by Landlord, whose insurance
shall be considered excess insurance only. All insurance
coverage required pursuant to this (P)16. which is to
name Landlord as a named insured shall also name
Landlord's subsidiaries, directors, agents, officers and
employees as named insureds.
2) Carried by Landlord. In the event Landlord is the
Insuring Party, Landlord shall also maintain liability
insurance as described in (P)16.b.1), in addition to,
and not in lieu of the insurance required to be
maintained by Tenant. In the event Tenant is the
Insuring Party, Landlord shall in addition carry
Lessor's Risk Coverage and insure the Premises on
Landlord's umbrella policy. Tenant shall not be named as
an additional insured therein under any insurance
obtained by Landlord in accordance with this (P)16.b.2).
c. Property Insurance - Building, Improvements and Rental Value.
1) Building and Improvements. The Insuring Party shall
obtain and keep in force during the Term of this Lease a
policy or policies in the name of Landlord, with loss
payable to Landlord and to the holders of any mortgages,
deeds of trust or ground leases on the Premises
("Lender(s)"), insuring loss or damage to the Premises.
The amount of such insurance shall be equal to the full
replacement cost of the Premises, as the same shall
exist from time to time, or the amount required by
Lender(s) if more, but in no event more than the
commercially reasonable and available insurable value
thereof if, by reason of the unique nature or age of the
improvements involved, such latter amount is less than
full replacement cost. If the coverage is available at a
commercially reasonable cost, such policy or policies
shall insure against all risks of direct physical loss
or damage (including Boiler and Machinery coverage and
the perils of flood and earthquake if commercially
reasonable), including coverage for any additional costs
resulting from debris removal and reasonable amounts of
coverage for the enforcement of any ordinance or law
regulating the reconstruction or replacement of any
undamaged sections of the Premises required to be
demolished shall also contain an agreed valuation
provision in lieu of any coinsurance clause, waiver of
subrogation and inflation guard protection causing an
increase in the annual property insurance coverage
amount by a factor of not less than the adjusted U.S.
Department of Labor Consumer Price Index for All Urban
Consumers for the city nearest to where the Premises are
located. If such insurance coverage has a deductible
clause, then Tenant shall be liable for such deductible
amount (not to exceed $10,000). Even if Landlord is the
Insuring Party, Tenant's personal property shall be
insured by Tenant under (P)16.d. rather than by
Landlord.
2) Rental Value. The Insuring Party shall, in addition,
obtain and keep in force during the term of this Lease a
policy or policies in the name of Landlord, with loss
payable to Landlord and Lender(s), insuring the loss of
the full rental and other charges payable by Tenant to
Landlord under this Lease for one (1) year (including
all Real Property Taxes, Insurance Costs and any
scheduled Rent increases). Said insurance shall provide
that in the event the Lease is terminated by reason of
an insured loss, the period of indemnity for such
coverage shall be extended beyond the date of the
completion of repairs or
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replacement of the Premises, to provide for one full
year's loss of Rent from the date of any such loss. Said
insurance shall contain an agreed valuation provision in
lieu of any coinsurance clause, and the amount of
coverage shall be adjusted annually to reflect the
projected Rent, Real Property Taxes, Insurance Costs and
other expenses, if any, otherwise payable by Tenant, for
the next twelve (12) month period. Tenant shall be
liable for any deductible amount in the event of such
loss.
3) Adjacent Premises. If the Premises are part of a larger
building, or if the Premises are part of a group of
buildings owned by Landlord which are adjacent to the
Premises, the Tenant shall pay for any increase in the
premiums for the property insurance of such building or
buildings if said increase is caused by Tenant's acts,
omissions, use or occupancy of the Premises.
4) Tenant's Improvements. If the Landlord is the Insuring
Party, the Landlord shall not be required to insure
Tenant's personal property and leasehold improvements
unless the item in question has become the property of
Landlord under the terms of this Lease. If Tenant is the
Insuring Party, the policy carried by Tenant under this
(P)16.c. shall insure Tenant's personal property and
leasehold improvements.
d. Tenant's Property Insurance. Subject to the requirements of
(P)16.e., Tenant at its cost shall either by separate policy, or
by endorsement to a policy already carried, maintain insurance
coverage on all of Tenant's personal property and Tenant's
leasehold improvements in, on or about the Premises similar in
coverage to that carried by the Insuring Party under (P)16.c.
Such insurance shall be full replacement cost coverage with a
deductible of not to exceed $10,000 per occurrence. The proceeds
from any such insurance shall be used by Tenant for the
replacement of personal property or the restoration of Tenant
owned leasehold improvements as required to maintain business
operations in the Premises. Tenant shall be the Insuring Party
with respect to the insurance required by this (P)16.d. and
shall provide Landlord with written evidence that such insurance
is in force.
e. Insurance Policies. If Tenant is the Insuring Party, Insurance
required per this (P)16. shall be with companies duly licensed
to transact business in the state where the Premises are
located, and maintaining during the policy term a "General
Policyholders Rating" of at least A- X, or such other minimal
rating as may be required by Lender(s) as set forth in the most
current issue of "Best's Insurance Guide". Tenant shall not do
or permit to be done anything which shall invalidate the
insurance policies referred to in this (P)16. If Tenant is the
Insuring Party, Tenant shall cause to be delivered to Landlord
certified copies of policies of such insurance or certificates
evidencing the existence and amounts of such insurance with the
insureds and loss payable clauses as required by this Lease. No
such policy shall be cancelable or subject to modification
except after thirty (30) days prior written notice to Landlord.
Tenant shall at least thirty (30) days prior to the expiration
of such policies, furnish Landlord with evidence of renewals or
"insurance binders" evidencing renewal thereof, or Landlord may
order such insurance and charge the cost thereof to Tenant,
which amount shall be payable by Tenant to Landlord upon demand.
If either party shall fail to procure and maintain the insurance
required to be carried by such party under this (P)16., the
other party may, but shall not be required to, procure and
maintain the same, but at Tenant's expense.
f. Mutual Waiver. Notwithstanding anything to the contrary
contained in this Lease, to the extent that this release and
waiver does not invalidate or impair their respective insurance
policies, the parties hereto release each other and their
respective agents, employees, officers, directors, shareholders,
successors, assignees and subtenants from all liability for
injury to any person or damage to any property that is caused by
or results from a risk which is actually insured against or
required to be insured against pursuant to the provisions of
this Lease without regard to the negligence or willful
misconduct of the parties so released. Each party shall use its
best efforts to cause each insurance policy it obtains to
provide that the insurer thereunder waives all right of recovery
by way of subrogation as required herein in connection with any
injury or damage covered by the policy. If such insurance policy
cannot be obtained with such waiver of subrogation, or if such
waiver of subrogation is only available at additional cost and
the party for whose benefit the waiver is not obtained does not
pay such additional costs after reasonable notice, then the
party obtaining such insurance shall promptly notify the other
party of the inability to obtain insurance coverage with the
waiver of subrogation.
17. DAMAGE AND DESTRUCTION
a. Damage - Restoration Required. In the event that the Premises is
damaged by fire or other casualty which is covered under
insurance pursuant to the provisions of (P)16. above, Landlord
shall restore such damage provided that: (i) the destruction of
the Premises does not exceed sixty percent (60%) of the then
replacement value of the Premises; (ii) the insurance proceeds
are available (inclusive of any deductible amounts) to pay one
hundred percent (100%) of the cost of restoration; and (iii) in
the reasonable judgment of Landlord, the restoration can be
completed within two hundred and seventy (270) days after the
date of the damage or casualty under the laws and regulations of
the state, federal, county and municipal authorities having
jurisdiction. The deductible amount of any insurance coverage
shall be paid by Tenant except in the case of flood or
earthquake and in such case the deductible amount in excess of
$10,000 per occurrence shall be paid by Landlord. If such
conditions apply so as to require Landlord to restore such
damage
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pursuant to this (P)17.a., this Lease shall continue in
full force and effect, unless otherwise agreed to in writing by
Landlord and Tenant. Tenant shall be entitled to a proportionate
reduction of Rent while such restoration takes place, such
proportionate reduction to be based on the extent to which the
damage and restoration efforts interfere with Tenant's business
in the Premises. Tenant's right to a reduction of Rent hereunder
shall be Tenant's sole and exclusive remedy in connection with
any such damage.
b. Damage - Restoration Not Required. In the event that the
Premises is damaged by a fire or other casualty and Landlord is
not required to restore such damage in accordance with the
provisions of (P)17.a. immediately above, Landlord shall have
the option to either (i) repair or restore such damage, with the
Lease continuing in full force and effect, but Rent to be
proportionately abated as provided in (P)17.a. above; or (ii)
give notice to Tenant at any time within thirty (30) days after
the occurrence of such damage terminating this Lease as of a
date to be specified in such notice which date shall not be less
than thirty (30) nor more than sixty (60) days after the date on
which such notice of termination is given. In the event of the
giving of such notice of termination, this Lease shall expire
and all interest of Tenant in the Premises shall terminate on
the date so specified in such notice and the Rent, reduced by
any proportionate reduction in Rent as provided for in (P)17.a.
above, shall be paid to the date of such termination.
Notwithstanding the foregoing, if Tenant delivers to Landlord
the funds necessary to make up the shortage (or absence) in
insurance proceeds and the restoration can be completed in a two
hundred seventy (270) day period, as reasonably determined by
Landlord, and the destruction of the Premises does not exceed
sixty percent (60%) of the then replacement value, Landlord
shall restore the Premises as provided in (P)17.a. above.
c. End of Term Casualty. Notwithstanding the provisions of (P)17.a.
and (P)17.b. above, Landlord may terminate this Lease if the
Premises is damaged by fire or other casualty (and Landlord's
reasonably estimated cost of restoration of the Premises exceeds
ten percent (10%) of the then replacement value of the Premises)
and such damage or casualty occurs during the last twelve (12)
months of the Term of this Lease (or the Term of any renewal
option, if applicable) by giving the other notice thereof at any
time within thirty (30) days following the occurrence of such
damage or casualty. Such notice shall specify the date of such
termination which date shall not be less than thirty (30) nor
more than sixty (60) days following the date on which such
notice of termination is given. In the event of the giving of
such notice of termination, this Lease shall expire and all
interest of Tenant in the Premises shall terminate on the date
so specified in such notice and the Rent shall be paid to the
date of such termination.
d. Termination by Tenant. In the event that the destruction to the
Premises cannot reasonably be restored as required herein under
applicable laws and regulations within two hundred seventy (270)
days of the damage or casualty, notwithstanding the availability
of insurance proceeds, Tenant shall have the right to terminate
this Lease by giving the Landlord notice thereof within thirty
(30) days of date of the occurrence of such casualty specifying
the date of termination which shall not be less than thirty (30)
days nor more than sixty (60) days following the date on which
such notice of termination is given. In the event of the giving
of such notice of termination, this Lease shall expire and all
interest of Tenant in the Premises shall terminate on the date
so specified in such notice and the Rent, reduced by any
proportionate reduction in Rent as provided for in (P)17.a.
above, shall be paid to the date of such termination. Landlord
shall not have the right to terminate the Lease if the damage to
the Premises is relatively minor (e.g., repair or restoration
would cost less than ten percent (10%) of the replacement cost
of the Premises).
e. Restoration. Landlord agrees that, in any case in which Landlord
is required to, or otherwise agrees to restore the Premises,
that Landlord shall proceed with due diligence to make all
appropriate claims and applications for the proceeds of
insurance and to apply for and obtain all permits necessary for
the restoration of the Premises. Landlord shall use reasonable
efforts to enforce any and all provisions in any mortgage, deed
of trust or other encumbrance on the Premises requiring Landlord
and Lender to permit insurance proceeds to be used for
restoration. Landlord shall restore the Premises to the
condition existing prior to the date of the damage if permitted
by applicable law. Landlord shall not be required to restore
alterations made by Tenant, Tenant's improvements, Tenant's
trade fixtures and Tenant's personal property, such excluded
items being the sole responsibility of Tenant to restore as
required to maintain business operations in the Premises
provided, however, that Landlord shall, to the extent of
available insurance proceeds, restore Tenant Improvements to the
Premises made by Tenant such as interior offices, lab and
production improvements and other like improvements.
f. Waiver. Tenant waives the provisions of Civil Code (S)1932(2)
and Civil Code (S)1933(4) with respect to any destruction of the
Premises.
18. CONDEMNATION
a. Definitions. The following definitions shall apply: (1 )
"Condemnation" means (a) the exercise of any governmental power
of eminent domain, whether by legal proceedings or otherwise by
condemnor, or (b) the voluntary sale or transfer by Landlord to
any condemnor either under threat of condemnation or while legal
proceedings for condemnation are proceeding; (2) "Date of
Taking" means the date the condemnor has right to possession of
the property being condemned; (3) "Award" means all
compensation, sums or anything of value awarded, paid or
received on a total or
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partial condemnation; and (4) "Condemnor" means any public or
quasi-public authority, or private corporation or individual.
having power of condemnation.
b. Obligations to be Governed by Lease. If during the Term of the
Lease there is any taking of all or any part of the Premises,
the rights and obligations of the parties shall be determined
strictly pursuant to this Lease. Each party waives the
provisions of Code of Civil Procedure (S)1265.130 allowing
either party to petition the Superior Court to terminate this
Lease in the event of a partial condemnation of the Premises.
c. Total or Partial Taking. If the Premises are totally taken by
Condemnation, this Lease shall terminate on the Date of Taking.
If any portion of the Premises is taken by Condemnation, this
Lease shall remain in effect, except that Tenant can elect to
terminate this Lease if the remaining portion of the Premises is
rendered unsuitable for Tenant's continued use of the Premises.
If Tenant elects to terminate this Lease, Tenant must exercise
its right to terminate by giving notice to Landlord within
thirty (30) days after the nature and extent of the Condemnation
have been finally determined. If Tenant elects to terminate this
Lease, Tenant shall also notify Landlord of the date of
termination, which date shall not be earlier than thirty (30)
days nor later than ninety (90) days after Tenant has notified
Landlord of its election to terminate; except that this Lease
shall terminate on the Date of Taking if the Date of Taking
falls on a date before the date of termination as designated by
Tenant. If any portion of the Premises is taken by Condemnation
and this Lease remains in full force and effect, on the Date of
Taking the Base Rent shall be reduced by an amount in the same
ratio as the total number of square feet in the building(s)
which are a part of the Premises taken bears to the total number
of square feet in the building(s) which are a part of the
Premises immediately before the Date of Taking. Any Award for
the taking of all or any part of the Premises under the power of
eminent domain or any payment made under threat of the exercise
of such power shall be the property of Landlord, whether such
Award shall be made as compensation for diminution in value of
the leasehold or for the taking of the fee, or as severance
damages; provided, however, that Tenant shall be entitled to any
compensation separately awarded to Tenant for Tenant's
relocation expenses and/or loss of Tenant's trade fixtures.
19. ASSIGNMENT OR SUBLEASE
a. Tenant shall not assign or encumber its interest in this Lease
or the Premises or sublease all or any part of the Premises or
allow any other person or entity (except Tenant's authorized
representatives, employees, invitees or guests) to occupy or use
all or any part of the Premises without first obtaining
Landlord's consent, which consent shall not be unreasonably
withheld. Any assignment, encumbrance or sublease without
Landlord's prior written consent shall be voidable and at
Landlord's election, shall constitute a default. If Tenant is a
partnership, a withdrawal or change, voluntary, involuntary or
by operation of law of any partner, or the dissolution of the
partnership, shall be deemed a voluntary assignment. If Tenant
consists of more than one person, a purported assignment,
voluntary or involuntary or by operation of law from one person
to the other shall be deemed a voluntary assignment. If Tenant
is a corporation, any dissolution, merger, consolidation or
other reorganization of Tenant, or sale or other transfer of a
controlling percentage of the capital stock of Tenant, or the
sale of at least fifty percent (50%) of the value of the assets
of Tenant shall be deemed a voluntary assignment.
Notwithstanding the sentence immediately above, if the Tenant is
a corporation, the Tenant shall be entitled to assign this Lease
without Landlord's prior written consent to: (i) a successor
corporation related to Tenant by merger, consolidation or non-
bankruptcy reorganization, provided that the surviving
corporation in connection with any such assignment shall have a
minimum net worth as of the date of the assignment at least
equal to that of Tenant immediately prior to completion of the
subject merger, consolidation or reorganization, (ii) a
purchaser of at least fifty percent (50%) of Tenant's capital
stock or substantially all of Tenant's assets, provided that
immediately following such purchase, such purchaser shall have a
net worth at least equal to that of Tenant immediately prior to
the completion of the subject purchase, or (iii) a
reorganization of Tenant through the sale of all or a portion of
Tenant's capital stock by Initial Public Offering (an event
described in (i), (ii), or (iii) above shall be referred to as a
transfer to a "Permitted Transferee"). Further, Landlord shall
not have consent rights if there is public trading of Tenant's
capital stock which aggregates to more than 50% of the common
stock of Tenant where such trading is unrelated to any
acquisition offer to purchase at least 50% of the company (also
a "Permitted Transferee"). In connection with any assignment as
described in the two sentences immediately above, Landlord shall
be entitled to require an increase in the Security Deposit to
the extent that such increase should be commercially reasonable
in Landlord's discretion given the financial condition of Tenant
and the assignee following such event. Tenant shall give
Landlord at least thirty (30) days prior written notice of any
intended transfer to a Permitted Transferee and in connection
with such transfer shall provide to Landlord copies of any
documents or other information as Landlord may reasonably
request. Unless otherwise expressly agreed in writing by
Landlord, no assignment shall relieve Tenant of any of its
obligations pursuant to this Lease. All Rent received by Tenant
from its subtenants in excess of the Rent payable by Tenant to
Landlord under this Lease applicable to the portion of the
Premises subleased, after deducting therefrom the commercially
reasonable brokerage commissions, moving allowance to
subtenants, tenant improvements made at the request of
subtenants and attorneys' fees incurred by Tenant in negotiating
and documenting the sublease, shall be deemed "Bonus Rent" and
Seventy-five percent (75%) of the Bonus Rent shall be promptly
paid to Landlord, or, as the case may be, Seventy-five percent
(75%) of all sums (determined in the same manner as Bonus Rent)
to be paid by an assignee to Tenant in consideration of the
assignment of this Lease shall be promptly paid to
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Landlord. If Tenant requests Landlord to consent to a proposed
assignment or subletting, Tenant shall pay to Landlord, whether
or not consent is ultimately given, an amount equal to
Landlord's reasonable attorneys' fees and costs incurred in
connection with such request. Each request for consent to an
assignment or subletting shall be in writing, and shall be
accompanied by information as may be relevant to Landlord's
determination as to the financial and operational responsibility
and stability of the proposed assignee or sublessee and the
appropriateness of the proposed use by such assignee or
sublessee. Such information shall include a summary of the
proposed use of, and any proposed modifications to, the
Premises. Tenant shall provide Landlord with such other or
additional information and/or documentation as may reasonably be
requested by Landlord. Tenant shall, upon completion of any
assignment or subletting of all or any portion of the Premises,
immediately and irrevocably assign to Landlord as security for
Tenant's obligations under the Lease, all Rent from any such
subletting or assignment. Landlord, as assignee and attorney in
fact for Tenant, shall have the right to collect all rent and
other revenues collectable pursuant to any such sublet or
assignment and apply such rent and other revenues towards
Tenant's obligations under the Lease. Tenant may, without
Landlord's prior written consent, sublet the Premises to a
subsidiary, affiliate, division or corporation controlled by
Tenant (an "Affiliate"). In no event shall an assignment or
proposed assignment to a Permitted Transferee or a sublease to
an Affiliate be subject to any recapture or termination rights
or bonus rent provisions under this (P)19. of the Lease.
b. No interest of Tenant in this Lease shall be assignable by
involuntary assignment through operation of law (including
without limitation the transfer of this Lease by testacy or
intestacy). Each of the following acts shall be considered an
involuntary assignment: (a) if Tenant is or becomes bankrupt or
insolvent, makes an assignment for the benefit of creditors, or
institutes proceedings under the Bankruptcy Act in which Tenant
is the bankrupt; or if Tenant is a partnership or consists of
more than one person or entity, if any partner of the
partnership or other person or entity is or becomes bankrupt or
insolvent, or makes an assignment for the benefit of creditors;
or (b) if a writ of attachment or execution is levied on this
Lease; or (c) if in any proceeding or action to which Tenant is
a party, a receiver is appointed with authority to take
possession of the Premises. An involuntary assignment shall
constitute a default by Tenant and Landlord shall have the right
to elect to terminate this Lease, in which case this Lease shall
not be treated as an asset of Tenant.
c. Notwithstanding any provision in this Lease to the contrary, in
any event where Landlord's consent is required for assignment or
sublease, Landlord may, at its option, elect to terminate the
Lease as to the portion of the Premises being subleased instead
of approving the requested assignment or sublease unless, in the
event of a requested sublease, (i) the rentable area of the
requested sublease when combined with the rentable area of any
existing sublease(s) is less than fifty percent (50%) of the
rentable area of the Premises, or (ii) the term of the requested
--
sublease (including the period(s) of any renewal options for the
requested sublease) is for less than fifty percent (50%) of the
remaining Term of this Lease. Should Landlord so elect to
terminate this Lease, all of the obligations of the parties
thereunder shall terminate on the later of sixty (60) days
following Landlord's notice to Tenant of its election hereunder,
or the effective date of the proposed assignment or subletting
sought by the Tenant, but in no event later than one hundred
twenty (120) days following the date of Landlord's election
under this (P)19.c. At the time of termination, all obligations
of both parties hereunder shall terminate as to obligations
thereafter accruing except as otherwise expressly provided in
this Lease.
20. DEFAULT. The occurrence of any of the following shall constitute a
default by Tenant: (a) a failure of Tenant to pay Rent within five (5)
days of its due date; (b) abandonment of the Premises; or (c) failure to
timely perform any other provision of this Lease. Tenant shall give
written notice to Landlord of any default by Landlord of its obligations
pursuant to this Lease asserted by Tenant (with a copy of such notice to
any lender ("Lender") against the Premises). Landlord and Landlord's
Lender shall be afforded a reasonable opportunity to cure any claimed
default by Landlord and Landlord shall not be considered in default so
long as Landlord (or Landlord's Lender) commences such cure within a
reasonable period of time and thereafter, diligently continues to
prosecute such cure to completion. Landlord, from time to time, shall
provide Tenant with the name and address of its Lender.
21. LANDLORD'S REMEDIES. Landlord shall have the following remedies if
Tenant is in default (These remedies are not exclusive; they are
cumulative and in addition to any remedies now or later allowed by law):
a. Landlord may continue this Lease in full force and effect, and
this Lease will continue in effect so long as Landlord does not
terminate Tenant's right to possession, and Landlord shall have
the right to collect Rent when due. During the period Tenant is
in default, Landlord can enter the Premises and relet the
Premises, or any part of the Premises, to third parties for
Tenant's account. Tenant shall be liable immediately to Landlord
for all costs Landlord incurs in reletting the Premises,
including without limitation, brokers' commissions, expenses of
remodeling the Premises required by the reletting, and like
costs. Reletting can be for a period shorter or longer than the
remaining Term of this Lease. Tenant shall pay to Landlord the
Rent due under this Lease on the dates the Rent is due, less the
Rent Landlord receives from any reletting. No act by Landlord
allowed by this (P)21.a. shall terminate this Lease unless
Landlord notifies Tenant in writing that Landlord elects to
terminate this Lease. After Tenant's default and for so long as
Landlord does not terminate Tenant's right to possession of the
Premises, if Tenant obtains Landlord's consent, Tenant shall
have the right to assign or sublet its interest in this Lease,
but Tenant shall not be released from liability. Landlord's
consent to such a proposed assignment or subletting shall not be
unreasonably
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withheld. If Landlord elects to relet the Premises as provided
in this (P)21.a., Rent that Landlord receives from reletting
shall be applied to the payment of: first, any indebtedness from
Tenant to Landlord other than Rent due from Tenant; second, all
costs, including for maintenance incurred by Landlord in
reletting; and third, Rent due and unpaid under this Lease.
After deducting the payments referred to in this (P)21.a., any
sum remaining from the Rent Landlord receives from reletting
shall be held by Landlord and applied in payment of future Rent
as Rent becomes due under this Lease. In no event shall Tenant
be entitled to any excess Rent received by Landlord. If, on the
date Rent is due under this Lease, the Rent received from the
reletting is less than the Rent due on that date, Tenant shall
pay to Landlord, in addition to the remaining Rent due, all
costs including for maintenance Landlord incurred in reletting
that remain after applying the Rent received from the reletting
as provided in this (P)21.a.; and
b. Landlord may terminate Tenant's right to possession of the
Premises at any time. No act by Landlord other than giving
express written notice thereof to Tenant shall terminate this
Lease. Acts of maintenance, efforts to relet the Premises, or
the appointment of a receiver on Landlord's initiative to
protect Landlord's interest under this Lease shall not
constitute a termination of Tenant's right to possession. Upon
termination of Tenant's right to possession, Landlord has the
right to recover from Tenant: (1) the Worth of the unpaid Rent
that had been earned at the time of termination of Tenant's
right to possession; (2) the Worth of the amount by which the
unpaid Rent that would have been earned after the date of
termination until the time of award exceeds the amount of the
loss of Rent that Tenant proves could have been reasonably
avoided; (3) the Worth of the amount of the unpaid Rent that
would have been earned after the award throughout the remaining
Term of the Lease to the extent such unpaid Rent exceeds the
amount of the loss of Rent that Tenant proves could have been
reasonably avoided; and (4) any other amount, including but not
limited to, expenses incurred to relet the Premises, court
costs, attorneys' fees and collection costs necessary to
compensate Landlord for all detriment caused by Tenant's
default. The "Worth", as used above in (1) and (2) in this
(P)21.b. is to be computed by allowing interest at the lesser of
eighteen percent (18%) per annum or the maximum legal interest
rate permitted by law. The "Worth", as used above in (3) in this
(P)21.b. is to be computed by discounting the amount at the
discount rate of the Federal Reserve Bank of San Francisco at
the time of the award, plus one percent (1%).
22. ENTRY OF PREMISES. Landlord and/or its authorized representatives shall
have the right after at least twenty-four hours' prior notice except for
emergencies to enter the Premises at all reasonable times for any of the
following purposes: (a) to determine whether the Premises are in good
condition and whether Tenant is complying with its obligations under
this Lease; (b) to do any necessary maintenance and to make any
restoration to the Premises that Landlord has the right or obligation to
perform; (c) to post "for sale" signs at any time during the Term, or to
post "for rent" or "for lease" signs during the last one hundred eighty
(180) days of the Term or during any period while Tenant is in default;
(d) to show the Premises to prospective brokers, lenders, agents,
buyers, tenants or persons interested in leasing or purchasing the
Premises, at any time during the Term; or (e) to repair, maintain or
improve the Premises and to erect scaffolding and protective barricades
around and about the Premises but not so as to prevent entry to the
Premises and to do any other act or thing necessary for the safety or
preservation of the Premises provided, however, Landlord shall comply
with all reasonable security measures of Tenant and shall be accompanied
by an employee of Tenant at all times. Landlord shall not be liable in
any manner for any inconvenience, disturbance, loss of business,
nuisance or other damage arising out of Landlord's entry onto the
Premises as provided in this (P)22. Tenant shall not be entitled to an
abatement or reduction of Rent if Landlord exercises any rights reserved
in this (P)22. Landlord shall conduct its activities on the Premises as
provided herein in a commercially reasonable manner that will lessen the
inconvenience, annoyance or disturbance to Tenant.
23. SUBORDINATION.
a. Automatic Subordination. Without the necessity of any additional
document being executed by Tenant for the purpose of effecting a
subordination, and at the election of Landlord or Landlord's
Lender, this Lease shall be subject and subordinate at all times
to (i) all ground leases or underlying leases which may now
exist or hereafter be executed affecting the Premises, (ii) the
lien of any mortgage or deed of trust which may now exist or
hereafter be executed affecting the Premises, and (iii) the lien
of any mortgage or deed of trust which may hereafter be executed
in any amount for which the Premises, ground leases or
underlying leases, or Landlord's interest or estate in any of
said items is specified as security. In the event that any
ground lease or underlying lease terminates for any reason or
any mortgage or deed of trust is foreclosed or a conveyance in
lieu of foreclosure is made for any reason, Tenant shall,
notwithstanding any subordination, attorn to and become the
Tenant of the successor in interest (including without
limitation to Lender) to Landlord ("Successor"). In connection
with any such termination of a ground lease or underlying lease
or any foreclosure or conveyance in lieu of foreclosure made in
connection with any mortgage or deed of trust, then so long as
Tenant is not in default after all applicable notice and cure
periods pursuant to this Lease, Tenant shall not be disturbed in
its possession of the Premises or in the enjoyment of its rights
pursuant to this Lease during the Term of this Lease or any
extension or renewal thereof. Notwithstanding any subordination
of this Lease to the lien of any mortgage or deed of trust, the
Lender, at any time, shall be entitled to subordinate the lien
of its mortgage or deed of trust to this Lease by filing a
notice of subordination in the County in which the Premises are
located, and Lender shall agree in connection with any such
filing, that Tenant shall not be disturbed in its possession of
the Premises so long as Tenant is not in default pursuant to
this Lease. In
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connection with any such filing, Tenant shall be obligated to
attorn to and to become a Tenant of any Successor. Upon written
request from Tenant, Landlord shall use its reasonable best
efforts to obtain from any existing or future mortgagees,
lenders, ground lessors and other parties holding a security
interest affecting the Premises a Subordination, Non-Disturbance
and Attornment Agreement.
b. Additional Subordination. From time to time at the request of
Landlord, Tenant covenants and agrees to execute and deliver
within ten (10) business days following the date of written
request from Landlord, documents evidencing the priority or
subordination of this Lease with respect to any ground lease or
underlying lease or the lien of any mortgage or deed of trust in
connection with the Premises. Any and all such documents shall
be in such form as is reasonably acceptable to the Lender(s).
Any subordination agreement so requested by Landlord shall
provide for Tenant to attorn to the Successor and shall further
provide that Tenant shall not be disturbed in its possession of
the Premises or in the enjoyment of its rights pursuant to this
Lease so long as Tenant is not in default after all applicable
notice and cure periods with respect to its obligations pursuant
to the Lease. Any such Subordination, Non-disturbance and
Attornment Agreement shall be recorded in the official records
of the office of the County Recorder in the County in which the
Premises is located.
c. Notice from Lender. Tenant shall be entitled to rely upon any
notice given by a Lender in connection with the Premises
requesting that Tenant make all future Rent payments to such
Lender, and Tenant shall not be liable to Landlord for any
payment made to such Lender in accordance with such notice.
Notwithstanding any provision to the contrary of this Lease, a
Successor shall not be (i) obligated to recognize the payment of
Rent for a period of more than one month in advance; (ii)
responsible for liabilities accrued pursuant to this Lease prior
to the date ("Succession Date") upon which the Successor becomes
the "Landlord" hereunder; (iii) responsible to cure defaults of
the Landlord pursuant to this Lease existing as of the
Succession Date, except for defaults of a continuing nature of
which Successor received notice (as provided in Paragraph 20)
and in respect of which Tenant afforded Successor a reasonable
cure period following such notice; (iv) responsible for any
Security Deposit delivered by Tenant pursuant to this Lease not
actually received by the Successor; or (v) bound by any
execution, modification, termination or extension of this Lease
or any grant of a purchase option or right of first refusal or
any other action taken by the Landlord pursuant to this Lease,
except in accordance with the provisions of an assignment of
Leases executed by Landlord in favor of a Lender.
24. ESTOPPEL CERTIFICATE; TENANT FINANCIAL STATEMENTS. Tenant, at any time
and from time to time, upon not less than ten (10) business days written
notice from Landlord, will execute, acknowledge and deliver to Landlord
and, at Landlord's request, to any existing or prospective purchaser,
ground lessor or mortgagee of any part of the Premises, a certificate of
Tenant stating: (a) that Tenant has accepted the Premises (or, if Tenant
has not done so, Tenant has not accepted the Premises and specifying the
reasons therefor); (b) the Commencement and Expiration Dates of this
Lease; (c) that this Lease is unmodified and in full force and effect
(or, if there have been modifications, that same is in full force and
effect as modified and stating the modifications); (d) whether or not to
the best of Tenant's knowledge there are then existing any defenses
against the enforcement of any of the obligations of Tenant under this
Lease (and, if so, specifying same); (e) whether or not to the best of
Tenant's knowledge there are then existing any defaults by Landlord in
the performance of its obligations under this Lease (and, if so,
specifying same); (f) the dates, if any, to which the Rent and other
charges under this Lease have been paid; (g) whether or not there are
Rent increases during the Lease Term and if so the amount of same; (h)
whether or not the Lease contains any options or rights of first offer
or first refusal; (i) the amount of any Security Deposit or other sums
due Tenant; (j) the current notice address for Tenant; and (k) any other
information that may reasonably be required by any of such persons. It
is intended that any such certificate of Tenant delivered pursuant to
this (P)24. may be relied upon by Landlord and any existing or
prospective purchaser, ground lessor or mortgagee of the Premises.
Tenant agrees, at any time upon request by Landlord, to deliver to
Landlord the current financial statements of Tenant with an opinion of a
certified public accountant, if available, including a balance sheet and
profit and loss statement for the most recent prior three years all
prepared in accordance with generally accepted accounting principles
consistently applied.
25. WAIVER. No delay or omission in the exercise of any right or remedy by
either party shall impair such right or remedy or be construed as a
waiver. No act or conduct of Landlord, including without limitation,
acceptance of the keys to the Premises, shall constitute an acceptance
of the surrender of the Premises by Tenant before the expiration of the
Term. Only written notice from Landlord to Tenant shall constitute
acceptance of the surrender of the Premises and accomplish termination
of the Lease. Landlord's consent to or approval of any act by Tenant
requiring Landlord's consent or approval shall not be deemed to waive or
render unnecessary Landlord's consent to or approval of any subsequent
act by Tenant. Any waiver by Landlord of any Default must be in writing
and shall not be a waiver of any other Default concerning the same or
any other provision of the Lease.
26. SURRENDER OF PREMISES. Upon expiration of the Term, Tenant shall
surrender to Landlord the Premises and all tenant improvements and
alterations in the same condition as existed at the Commencement Date,
except for ordinary wear and tear, damage from casualty and condemnation
and alterations which Tenant has the right or is obligated to remove
under the provisions of (P)14. herein. Tenant's trade fixtures,
furniture, equipment and other personal property ("Tenant's Property")
shall at all times be and remain Tenant's property. Tenant may at any
time remove Tenant's Property from the Premises, provided that Tenant
repairs all damage caused by such removal. Tenant shall remove all
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personal property including, without limitation, all wallpaper, paneling
and other decorative improvements or fixtures and shall perform all
restoration made necessary by the removal of any alterations or Tenant's
personal property before the expiration of the Term, including, for
example, restoring all wall surfaces to their condition as of the
Commencement Date. Landlord can elect to retain or dispose of in any
manner Tenant's personal property not removed from the Premises by
Tenant prior to the expiration of the Term. Tenant waives all claims
against Landlord for any damage to Tenant resulting from Landlord's
retention or disposition of Tenant's personal property. Tenant shall be
liable to Landlord for Landlord's cost for storage, removal and disposal
of Tenant's personal property.
27. HOLDOVER. If Tenant with Landlord's consent remains in possession of the
Premises after expiration of the Term or after the date in any notice
given by Landlord to Tenant terminating this Lease, such possession by
Tenant shall be deemed to be a month to month tenancy cancelable by
either party on thirty (30) days written notice given at any time by
either party and all provisions of this Lease, except those pertaining
to Term, renewal options and Base Rent, shall apply and Tenant shall
thereafter pay monthly Base Rent computed on a per month basis, for each
month or part thereof (without reduction for any partial month) that
Tenant remains in possession, in an amount equal to one hundred fifty
percent (150%) of the Base Rent that was in effect for the last full
calendar month immediately preceding expiration of the Term.
If Tenant holds over after the expiration or earlier termination of the
Term hereof, without the consent of Landlord, Tenant shall become a
Tenant at sufferance only with a continuing obligation to pay Rent
provided that the Base Rent shall be one hundred fifty percent (150%) of
the Base Rent that was in effect for the last full calendar month
immediately preceding expiration of the Term for the first thirty (30)
days of such holdover, and two hundred percent (200%) of such Base Rent
thereafter during the pendency of such holdover. Acceptance by Landlord
of Rent after expiration or earlier termination of the Term shall not
constitute a consent to a holdover hereunder or result in a renewal. The
foregoing provisions of this (P)27. are in addition to and do not affect
Landlord's right of re-entry or any rights of Landlord hereunder or as
otherwise provided by law. If Tenant fails to surrender the Premises
upon the expiration of this Lease despite demand to do so by Landlord,
Tenant shall indemnify and hold Landlord harmless from all loss or
liability arising out of such failure, including without limitation, any
claim made by any succeeding tenant founded on or resulting from such
failure to surrender. No provision of this (P)27. shall be construed as
implied consent by Landlord to any holding over by Tenant. Landlord
expressly reserves the right to require Tenant to surrender possession
of the Premises to Landlord as provided in this Lease upon expiration or
other termination of this Lease. The provisions of this (P)27. shall not
be considered to limit or constitute a waiver of any other rights or
remedies of Landlord provided in this Lease or at law.
28. NOTICES. All notices, demands, or other communications required or
contemplated under this Lease, including any notice delivered to Tenant
by the Lender, shall be in writing and shall be deemed to have been duly
given three (3) business days from the time of mailing if mailed by
registered or certified mail, return receipt requested, postage prepaid,
or one (1) business day from the time of shipping by overnight carrier,
or the actual time of delivery if delivered by personal service to the
parties at the addresses specified in (P)1. Either Tenant or Landlord
may change the address to which notices are to be given to such party
hereunder by giving written notice of such change of address to the
other in accordance with the notice provisions hereof.
29. TENANT IMPROVEMENTS. Landlord shall deliver the Premises to Tenant in
its "as is" condition with the roof water tight and the existing
electrical, lighting, HVAC and plumbing systems in good working order.
Landlord hereby grants Tenant a one-time construction allowance of up to
One Hundred Seventy One Thousand Six Hundred Eighteen Dollars
($171,618.00) ("Tenant's Construction Allowance") for the cost of the
initial tenant improvements to be installed in the Premises by Tenant
including all associated architectural, engineering and professional
fees and costs (exclusive of any overhead costs of Landlord). Tenant
shall submit its plans for the tenant improvements for Landlord's
written approval (the "Approved Work"), which approval shall not be
unreasonably withheld, prior to Tenant's commencement of construction of
the Approved Work, and Landlord shall respond within five (5) business
days of the date Tenant provides Landlord any specific set of complete
preliminary or complete final plans required for Landlord's approval.
All work performed by Tenant shall be performed in strict compliance
with the plans submitted for the Approved Work and no modification shall
be made in such plans without the prior written approval of Landlord,
which approval shall not be unreasonably withheld. Landlord shall pay
Tenant's outside vendors or contractors for materials and services
constituting the Approved Work, up to the maximum Tenant's Construction
Allowance set forth in this (P)29, within thirty (30) days following
Landlord's receipt of Tenant's submittal to Landlord of approved
invoices and conditional lien releases for payment. Tenant shall also be
reimbursed from Tenant's Construction Allowance for the reasonable cost
of all preliminary and final plans and specifications and all permits
relating to the installation of the Approved Work. All of the work to be
done by Tenant under this (P)29. shall be done in accordance with the
provisions of (P)14. hereof, and Tenant shall be required to follow
Landlord's reasonable rules and regulations relating to contractors
working in the Project. Landlord shall have the right to reasonably
approve all of Tenant's proposed contractors and subcontractors related
to the installation of the Approved Work. Landlord shall not charge an
administrative fee relating to the installation of the Approved Work.
Tenant shall have the right to access the Premises upon substantial
vacation of the Premises by the present tenant for the purpose of
installing the Approved Work (the "Construction Period"), provided,
however, Tenant shall be bound by the terms and conditions of the Lease
during the Construction Period except for Tenant's obligation to pay
Base Rent or Operating Expenses.
30. COMMENCEMENT DATE. The term of the Lease shall commence on the earliest
to occur of (i) commencement of occupancy of the Premises by Tenant's
personnel; (ii) substantial completion of the
-18-
<PAGE>
Approved Work (as defined above) as determined by the building
architect; or (iii) one hundred fifty (150) days after the date of the
Premises are delivered by Landlord to Tenant, provided, however if the
Premises are not delivered to Tenant on or before November 30, 2000 for
any reason whatsoever, then, in addition to Tenant's other rights or
remedies, Tenant may between the period of December 1, 2000 and December
10, 2000 (inclusive), provided that the Premises have not been delivered
to Tenant prior to Tenant's notice to Landlord, terminate the Lease by
written notice to Landlord, whereupon any monies previously paid by
Tenant to Landlord shall be reimbursed to Tenant.
31. OPTION(S) TO RENEW.
a. Grant of Option(s). Tenant shall have the right, at its option,
to extend the Lease for two (2) period(s) of five (5) years each
("Extended Term(s)") on an "as is" basis commencing at the
expiration of the previous Term, provided that at the time of
exercise and at the time of commencement of each Extended Term,
Tenant is not in default beyond any applicable cure period under
this Lease.
b. Exercise of Option(s). If Tenant decides to extend the Lease for
an Extended Term, Tenant shall give written notice to Landlord
of its election to extend not less than ten (10) months prior to
the expiration of the previous Term. Tenant's failure to give
timely notice to Landlord of Tenant's election to extend shall
be deemed a waiver of Tenant's right to extend. The terms and
conditions applicable to each Extended Term shall be the same
terms and conditions contained in this Lease except that Tenant
shall not be entitled to any further option to extend beyond the
second Extended Term. The Base Rent for each Extended Term shall
be as determined in accordance with (P)31.c.
c. Determination of Base Rent During the Extended Term(s).
1) Agreement on Initial Base Rent. Landlord shall not be
obligated to provide Tenant with the proposed fair
market rental value until six (6) months prior to the
expiration of the previous Term. Landlord and Tenant
shall have thirty (30) days after Landlord provides the
proposed fair market rental value in which to agree on
the Base Rent during each Extended Term, which shall be
the fair market rental value of the Premises during said
Extended Term. The fair market rental value of the
Premises during said Extended Term shall be based on the
uses of the Premises permitted under this Lease, the
quality, size, design and location of the Premises, and
the rental value for lease renewals or extensions of
comparable size, quality and location and shall include
annual CPI or similar periodic adjustments. If Landlord
and Tenant agree on the Base Rent for each Extended Term
during the thirty (30) day period, they shall
immediately execute an amendment to this Lease stating
the new Base Rent.
2) Selection of Appraisers. If Landlord and Tenant are
unable to agree on the Base Rent (including any periodic
adjustments) for the subject Extended Term within the
thirty (30) day period, then within ten (10) days after
the expiration of the thirty (30) day period and
provided that Tenant has timely exercised the subject
renewal option in accordance with (P)31.b., Landlord and
Tenant each at its own cost and by giving notice to the
other party, shall appoint a competent and disinterested
real estate appraiser with at least five (5) years full-
time commercial appraisal experience in the Silicon
Valley market area to appraise the fair market rental
value of the Premises and set the Base Rent (including
periodic adjustments) during said Extended Term. If
either Landlord or Tenant does not appoint an appraiser
within said ten (10) days, the single appraiser
appointed shall be the sole appraiser and shall set the
Base Rent (including periodic adjustments) during said
Extended Term. If two (2) appraisers are appointed by
Landlord and Tenant as stated herein, they shall meet
promptly and attempt to set the Base Rent for said
Extended Term. If the two (2) appraisers are unable to
agree within thirty (30) days after the second appraiser
has been appointed, they shall attempt to select a third
appraiser meeting the same qualifications within ten
(10) days after the last day the two (2) appraisers are
given to set the Base Rent (including periodic
adjustments). If they are unable to agree on the third
appraiser, either Landlord or Tenant, by giving ten (10)
days' notice to the other party, can apply to the then
President of the Real Estate Board or to the Presiding
Judge of the Superior Court of the County in which the
Premises are located, for the selection of a third
appraiser who meets the qualifications stated herein.
Landlord and Tenant each shall bear one-half ( 1/2) of
the cost of appointing the third appraiser and of paying
the third appraiser's fee. The third appraiser, however
selected, shall be a person who has not previously acted
in any capacity for either Landlord or Tenant, or their
affiliates.
3) Value Determined by Three (3) Appraisers. Within thirty
(30) days after the selection of the third appraiser, a
majority of the appraisers shall set the Base Rent
(including periodic adjustments) for each Extended Term.
If a majority of the appraisers are unable to set the
Base Rent (including periodic adjustments) within the
stipulated period of time, Landlord's appraiser shall
arrange for simultaneous exchange of written appraisals
from each of the appraisers and the three (3) appraisals
shall be added together and their total divided by three
(3); the resulting quotient shall be the Base Rent
(including periodic adjustments) for the Premises during
each Extended Term. If, however, the low appraisal
and/or the high appraisal are/is more than fifteen
percent (15%) lower and/or higher than the middle
appraisal, such low appraisal and/or high appraisal
shall be disregarded. If only one (1)
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<PAGE>
appraisal is disregarded, the remaining two (2)
appraisals shall be added together and their total
divided by two (2); the resulting quotient shall be the
Base Rent for the Premises (including periodic
adjustments) during each Extended Term. If both the low
appraisal and the high appraisal are disregarded as
stated in this (P)31.c.3), the middle appraisal shall be
the Base Rent (including periodic adjustments) for the
Premises during each Extended Term.
4) Minimum Base Rent Level. Notwithstanding any other
provision of this Lease, in no event shall the initial
Base Rent for the subject Extended Term be less than the
Base Rent prevailing immediately prior to the expiration
of the previous Term.
32. MISCELLANEOUS PROVISIONS.
a. Time of Essence. Time is of the essence of each provision of
this Lease.
b. Successor. This Lease shall be binding on and inure to the
benefit of the parties and their successors, except as provided
in (P)19.
c. Landlord's Consent. Any consent required by Landlord under this
Lease must be granted in writing and may be withheld or
conditioned by Landlord in its sole and absolute discretion
unless otherwise provided.
d. Personal Rights. Notwithstanding any other provision(s) of this
Lease to the contrary, any provisions of this Lease providing
for the renewal, extension or early termination of the Lease
and/or for the expansion of the Premises (to include without
limitation rights to negotiate, rights of first refusal, etc.)
shall be (i) personal to the original Tenant and shall not be
assignable or otherwise transferable other than to a Permitted
Transferee (either voluntarily or involuntarily) to any third
party for any reason whatsoever, and (ii) conditioned upon
Tenant not then being in default under this Lease.
e. Year 2000. Notwithstanding any covenant or provision contained
in this Lease to the contrary, Landlord shall have no liability
or responsibility whatsoever to Tenant for (i) any disruption or
interruption in Tenant's business, (ii) any disruption or
interruption in Tenant's use or possession of the Premises, or
(iii) any other damage or consequence suffered or experienced by
Tenant, arising from or relating in any way to the malfunction,
shut down or other abnormal behavior of any computer or computer
controlled system which provides utilities or services to the
Premises, or controls any systems serving the Premises (whether
such computer is within the control of Landlord or otherwise)
resulting from the inability or failure of any such computer or
computer controlled system to recognize the year 2000, and
distinguish said year from the year 1900 (sometimes referred to
as the "Y2K problem", or the "failure to be year 2000
compliant").
f. Commissions. Each party represents that it has not had dealings
with any real estate broker, finder or other person with respect
to this Lease in any manner, except for the Broker(s) identified
in (P)1., who shall be compensated by Landlord in accordance
with the separate agreement between Landlord and the Broker(s).
g. Other Charges; Legal Fees. Except to the extent of the gross
negligence or willful misconduct of Landlord or its agents or
contractors or a breach of Landlord's obligations under the
Lease, if Landlord becomes a party to any litigation concerning
this Lease or the Premises by reason of any act or omission of
Tenant or Tenant's authorized representatives, Tenant shall be
liable to Landlord for reasonable attorneys' fees and court
costs incurred by Landlord in the litigation. Should the court
render a decision which is thereafter appealed by any party
thereto, Tenant shall be liable to Landlord for reasonable
attorneys' fees and court costs incurred by Landlord in
connection with such appeal.
If either party commences any litigation against the other party
or files an appeal of a decision arising out of or in connection
with the Lease, the prevailing party shall be entitled to
recover from the other party reasonable attorneys' fees and
costs of suit. If Landlord employs a collection agency to
recover delinquent charges, Tenant agrees to pay all collection
agency and attorneys' fees charged to Landlord in addition to
Rent, late charges, interest and other sums payable under this
Lease.
h. Landlord's Successors. In the event of a sale or conveyance by
Landlord of the Premises, the same shall operate to release
Landlord from any liability under this Lease accruing thereafter
to the extent Landlord's successor-in-interest assumes such
liability in writing, including as to any Security Deposit to
the extent transferred to Landlord's successor-in-interest, and
in such event Landlord's successor in interest shall be solely
responsible for all obligations of Landlord under this Lease .
i. Interpretation. This Lease shall be construed and interpreted in
accordance with the laws of the state in which the Premises are
located. This Lease constitutes the entire agreement between the
parties with respect to the Premises, except for such guarantees
or modifications as may be executed in writing by the parties
from time to time. When required by the context of this Lease,
the singular shall include the plural, and the masculine shall
include the feminine and/or neuter. "Party" shall mean Landlord
or Tenant. If more than one person or entity constitutes
Landlord or Tenant,
-20-
<PAGE>
the obligations imposed upon that party shall be joint and
several. The enforceability, invalidity or illegality of any
provision shall not render the other provisions unenforceable,
invalid or illegal.
j. Auctions. Tenant shall not conduct, nor permit to be conducted,
either voluntarily or involuntarily, any auction upon the
Premises without first having obtained Landlord's prior written
consent. Notwithstanding anything to the contrary in this Lease,
Landlord shall not be obligated to exercise any standard of
reasonableness in determining whether to grant such consent.
k. Quiet Possession. Upon payment by Tenant of the Rent for the
Premises and the observance and performance of all of the
covenants, conditions and provisions on Tenant's part to be
observed and performed under this Lease, Tenant shall have quiet
possession of the Premises for the entire Term hereof subject to
all of the provisions of this Lease.
l. Conflict. Any conflict between the printed provisions of this
Lease and the typewritten or handwritten provisions shall be
controlled by the typewritten or handwritten provisions.
m. Offer. Preparation of this Lease by Landlord or Landlord's agent
and submission of same to Tenant shall not be deemed an offer to
lease to Tenant. This Lease is not intended to be binding until
executed by all Parties hereto.
n. Amendments. This Lease may be modified only in writing, signed
by the Parties in interest at the time of the modification. The
parties shall amend this Lease from time to time to reflect any
adjustments that are made to the Base Rent or other Rent payable
under this Lease. As long as they do not materially change
Tenant's obligations hereunder, Tenant agrees to make reasonable
non-monetary modifications to this Lease as may be reasonably
required by Lender(s) in connection with the obtaining of normal
financing or refinancing of the property of which the Premises
are a part.
o. Construction. The Landlord and Tenant acknowledge that each has
had its counsel review this Lease, and hereby agree that the
normal rule of construction to the effect that any ambiguities
are to be resolved against the drafting party shall not be
employed in the interpretation of this Lease or in any
amendments or exhibits hereto.
p. Captions. Article, section and paragraph captions are not a part
hereof.
q. Exhibits. For reference purposes the Exhibits are listed below:
Exhibit A: The Premises
Exhibit B: Rules and Regulations
Exhibit C: Covenants, Conditions And Restrictions
<TABLE>
<CAPTION>
LANDLORD: TENANT:
<S> <C>
LIMAR REALTY CORP. #22, a California corporation MEDAREX, INC., a New Jersey corporation
/s/ Thomas A. Numainville /s/ Nils Lonberg
By: ____________________________________ By: ______________________________________
Nils Lonberg
Name: Thomas A. Numainville Name: ______________________________________
V.P. Scientific Director
Title: Sr. Vice President Title: ______________________________________
4-21-00 4-14-00
Date: ____________________________________ Date: ______________________________________
/s/ Thomas A. Numainville /s/ Michael Appelbaum
By: ____________________________________ By: ______________________________________
Michael Appelbaum
Name: Thomas A. Numainville Name: ______________________________________
Executive V.P.
Title: Assistant Secretary Title: ______________________________________
4/21/00 4/18/00
Date: ____________________________________ Date: ______________________________________
</TABLE>
-21-
<PAGE>
EXHIBIT A
The Premises
------------
This Exhibit A is attached to and made a part of that certain Lease (the
"Lease") dated March 14, 2000 by and between Limar Realty Corp. #22 as Landlord
and Medarex, Inc. as Tenant.
<PAGE>
EXHIBIT B
Rules & Regulations
-------------------
This Exhibit B is attached to and made a part of that certain Lease dated March
14, 2000 by and between Limar Realty Corp. #22 as Landlord and Medarex, Inc. as
Tenant.
For the purpose of these Rules & Regulations the word Premises shall refer to
the Premises Tenant is leasing as described in the Lease.
1. No sign, placard, picture, advertisement, name or notice (collectively,
"Signs") shall be installed or displayed on any part of the Premises
without the prior written consent of Landlord, except that Tenant may post
Signs inside the Building which are not visible from the exterior of the
Building. Landlord shall have the right to remove, at Tenant's expense and
without notice, any sign installed or displayed in violation of this rule.
All approved signs or lettering on doors and walls shall be printed,
painted, affixed or inscribed at the expense of Tenant.
2. Except as consented to in writing by Landlord, no draperies, curtains,
blinds, shades, screens or other devices shall be hung at or used in
connection with any window or exterior door or doors of the Premises and no
awning shall be permitted on any part of the Premises. Tenant shall not
place anything against or near glass partitions or doors or windows which
may appear unsightly from outside the Premises.
3. Neither Tenant nor any employee or invitee of Tenant, shall make any
structural roof or terrace penetrations except as reasonably approved by
Landlord.
4. Tenant shall not cause any unnecessary labor by carelessness or
indifference to the good order and cleanliness of the Premises. Landlord
shall not in any way be responsible to any Tenant for any loss of property
on the Premises, or for any damage to any Tenant's property.
5. Landlord will furnish Tenant, free of charge, with six (6) keys to the
Premises.
6. Tenant shall not place a load upon any floor of the Premises which exceeds
the load per square foot which such floor was designed to carry and which
is allowed by law. Landlord shall have the reasonable right to prescribe
the weight, size and position of all equipment, materials, furniture or
other property brought into the Premises. Heavy objects shall, if
considered necessary by Landlord, stand on such platforms as determined by
Landlord to be necessary to properly distribute the weight. Business
machines and mechanical equipment belonging to Tenant, which cause noise or
vibration that may be transmitted to the structure of the Premises to such
a degree as to be objectionable to Landlord, shall be placed and maintained
by Tenant, at Tenant's expense, on vibration eliminators or other devices
sufficient to eliminate noise or vibrations. Landlord will not be
responsible for loss of, or damage to, any such equipment or other property
from any cause, and all damage done to the Premises by maintaining or
moving such equipment or other property shall be repaired at the expense of
Tenant.
7. Tenant shall not waste electricity, water or air-conditioning and agrees to
cooperate fully with Landlord to comply with any governmental energy-saving
rules, laws or regulations of which Tenant has actual notice.
8. Landlord reserves the right, exercisable with one hundred twenty (120) days
prior written notice but without liability to Tenant, to change the name
and street address of the Premises.
9. Tenant shall close and lock the doors of its Premises and entirely shut off
all water faucets or other water apparatus, and other equipment which is
not required to be continuously run.
10. The toilet rooms, toilets, urinals, wash bowls and other apparatus shall
not be used for any purpose other than that for which they were constructed
and no foreign substance of any kind whatsoever shall be thrown therein.
The expense of any breakage, stoppage or damage resulting for the violation
of this rule shall be borne by the Tenant who, or whose employees or
invitees, shall have caused it.
11. Tenant shall not sell, or permit the retail sale of newspapers, magazines,
periodicals, theater tickets or any other goods or merchandise to the
general public in or on the Premises. Tenant shall not use the Premises
for any business or activity other than that specifically provided for in
Tenants Lease. Notwithstanding the above, Tenant shall have the right to
install vending machines for use by Tenant, its employees and invitees.
12. Tenant shall not interfere with radio or television broadcasting or
reception from or in neighboring areas.
13 Canvassing, soliciting and distribution of handbills or any other written
materials, and peddling in the Property are prohibited, and Tenant shall
cooperate to prevent same.
14. Landlord reserves the right to exclude or expel from the Premises any
person who, in Landlord's judgment, is intoxicated or under the influence
of liquor or drugs or who is in violation of any of the Rules and
Regulations of the Premises or in violation of the CC&R's.
<PAGE>
EXHIBIT B
Rules & Regulations
-------------------
(continued)
15. Tenant shall store all its trash and garbage within its Premises or in
reasonable locations specifically identified by Landlord for such purposes.
Tenant shall not place in any trash box or receptacle any material which
cannot be disposed of in the ordinary and customary manner of trash and
garbage disposal. All garbage and refuse disposal shall be made in
accordance with reasonable directions issued from time to time by Landlord.
16. The Premises shall not be used for the storage of merchandise held for sale
to the general public, or for lodging nor shall the Premises by used for
any improper, immoral or objectionable purpose. No cooking shall be done
or permitted by any tenant on the Premises, except that use by Tenant in
its kitchen, if any, located in the Premises and Underwriters Laboratory's
approved equipment for brewing coffee, tea, hot chocolate and similar
beverages and microwaving food shall be permitted, provided that such
kitchen, equipment and use is in accordance with all applicable federal,
state, county and city laws, codes, ordinances, rules and regulations.
17. Tenant shall not use in any part of the Premises any hand truck except
those equipped with rubber tires and side guards or such other reasonable
material-handling equipment as Landlord may approve.
18. Without the written consent of Landlord, Tenant shall not use the name of
the Premises in connection with or in promoting or advertising the business
of Tenant except as Tenant's address.
19. Tenant shall comply with all safety, fire protection and evacuation
procedures and regulations established by Landlord or any governmental
agency.
20. Tenant assumes any and all responsibility for protecting its Premises from
theft, robbery and pilferage, which includes locking doors and securing
other means of entry to the Premises closed.
21. The requirements of Tenant will be attended to only upon appropriate
application to the office of Landlord by an authorized individual.
Employees of Landlord shall not perform any work or do anything outside of
their regular duties unless under special instructions from Landlord.
22. Tenant shall not park its vehicles in any parking areas outside the
Premises. Tenant shall not store or abandon vehicles in the Premises
parking areas nor park any vehicles in the Premises parking areas other
than automobiles, motorcycles, motor driven or non-motor driven bicycles,
four-wheeled trucks, or other equipment used in the operation of Tenant's
business. Tenant, its agents, employees and invitees shall not park any
one (1) vehicle in more than one (1) parking space.
23. Landlord reserves the right to make such other reasonable Rules and
Regulations as, in its judgment, may from time to time be appropriate for
safety and security, for care and cleanliness of the Premises and for the
preservation of good order therein. Tenant agrees to abide for all such
Rules and Regulations hereinabove stated and any additional Rules and
Regulations which are adopted.
24. Tenant shall be responsible for the observance of all of the foregoing
Rules and Regulations by Tenant's employees, agents, clients, customers,
invitees and guests.
<PAGE>
EXHIBIT C
Covenants, Conditions and Restrictions
--------------------------------------
This Exhibit C is attached to and made a part of that certain Lease dated March
14, 2000 by and between Limar Realty Corp. #22 as Landlord and Medarex, Inc. as
Tenant.
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
FINANCIAL STATEMENTS FOR THE THREE MONTHS ENDED MARCH 31, 2000 AND IS QUALIFIED
IN ITS ENTIRETY BY REFERENCE IN SUCH STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-2000
<PERIOD-END> MAR-31-2000
<CASH> 403,552
<SECURITIES> 12,458
<RECEIVABLES> 0
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 419,318
<PP&E> 7,924
<DEPRECIATION> (4,994)
<TOTAL-ASSETS> 424,952
<CURRENT-LIABILITIES> 9,547
<BONDS> 0
0
0
<COMMON> 358
<OTHER-SE> 409,948
<TOTAL-LIABILITY-AND-EQUITY> 424,952
<SALES> 55
<TOTAL-REVENUES> 2,133
<CGS> 27
<TOTAL-COSTS> 8,273
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 1
<INCOME-PRETAX> (4,175)
<INCOME-TAX> (150)
<INCOME-CONTINUING> (4,325)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (4,325)
<EPS-BASIC> (0.13)
<EPS-DILUTED> 0
</TABLE>
