<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the quarterly period ended September 30, 1997
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
Commission file number: 0-27972
TREGA BIOSCIENCES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 51-0336233
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
3550 GENERAL ATOMICS COURT, SAN DIEGO, CA 92121
(619) 455-3814
(Address, including zip code, and telephone, including area code,
of registrant's principal executive offices)
(Former name, former address and former
fiscal year, if changed since last report)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes X No __
APPLICABLE ONLY TO CORPORATE ISSUERS:
Indicate the number of shares outstanding of each of the issuer's classes
of common stock, as of the latest practicable date.
<TABLE>
<CAPTION>
CLASS OUTSTANDING AT OCTOBER 31, 1997
-------------------------------- -------------------------------
<S> <C>
Common stock, $0.001 par value 13,831,717
</TABLE>
<PAGE> 2
TREGA BIOSCIENCES, INC.
INDEX TO FORM 10-Q
PART I. FINANCIAL INFORMATION
Item 1. Consolidated Financial Statements (Unaudited):
Consolidated Balance Sheets at September 30, 1997 and
December 31, 1996................................................. 3
Consolidated Statements of Operations for the three and nine
months ended September 30, 1997 and 1996.......................... 4
Consolidated Statements of Cash Flows for the nine months
ended September 30, 1997 and 1996................................. 5
Notes to Consolidated Financial Statements........................ 6
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations............................................. 10
PART II. OTHER INFORMATION
Item 1. Legal Proceedings................................................. 18
Item 2. Changes in Securities and Use of Proceeds......................... 18
Item 6. Exhibits.......................................................... 19
SIGNATURE................................................................. 20
2
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PART I. FINANCIAL INFORMATION
Item 1. Consolidated Financial Statements
TREGA BIOSCIENCES, INC.
CONSOLIDATED BALANCE SHEETS
(in thousands, except share data)
<TABLE>
<CAPTION>
SEPTEMBER 30, DECEMBER 31,
1997 1996
------------- ------------
(Unaudited) (Note)
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $ 6,580 $ 13,615
Short-term investments 15,894 13,828
Accounts receivable -- 481
Notes receivable 528 --
Other current assets 717 282
------------- ------------
Total current assets 23,719 28,206
Property and equipment, net 2,595 1,745
Notes receivable-long-term 561 --
Other assets 1,869 562
------------- ------------
$ 28,744 $ 30,513
============= ============
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 581 $ 810
Accrued compensation 509 769
Other accrued liabilities 1,368 1,951
Current portion of debt obligations 690 433
Deferred revenue 4,384 1,761
------------- ------------
Total current liabilities 7,532 5,724
Obligations under capital leases 385 633
Long-term equipment notes payable 979 --
Long-term notes payable 1,523 --
Stockholders' equity Common stock, $.001 par value:
Authorized shares - 40,000,000
Issued and outstanding shares - 13,823,028 and 13,368,772 at
September 30, 1997 and December 31, 1996, respectively 14 13
Additional paid-in capital 72,918 71,050
Common stock issuable 107 1,281
Deferred compensation, net (1,436) (1,931)
Accumulated deficit (53,278) (46,257)
------------- ------------
Total stockholders' equity 18,325 24,156
------------- ------------
$ 28,744 $ 30,513
============= ============
</TABLE>
Note: The balance sheet at December 31, 1996, has been derived from the audited
financial statements at that date but does not include all of the information
and footnotes required by generally accepted accounting principles for complete
financial statements.
See accompanying notes.
3
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TREGA BIOSCIENCES, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
(in thousands, except share data)
<TABLE>
<CAPTION>
THREE MONTHS ENDED NINE MONTHS ENDED
SEPTEMBER 30, SEPTEMBER 30,
------------------------------ ------------------------------
1997 1996 1997 1996
------------ ------------ ------------ ------------
(Unaudited) (Unaudited)
<S> <C> <C> <C> <C>
Revenues:
Net sales $ -- $ 609 $ 430 $ 1,723
Contract research and licenses fees 1,437 3,960 4,951 5,301
------------ ------------ ------------ ------------
1,437 4,569 5,381 7,024
Costs and expenses:
Cost of revenues -- 479 341 1,429
Research and development 3,860 3,241 10,088 8,410
Acquired in-process research and development -- 1,303 4 1,303
Selling, general and administrative 1,341 994 4,253 2,654
------------ ------------ ------------ ------------
5,201 6,017 14,686 13,796
------------ ------------ ------------ ------------
Loss from operations (3,764) (1,448) (9,305) (6,772)
Other income (expense):
Other income -- -- 67 --
Interest income 369 408 1,100 917
Interest expense (57) (26) (138) (69)
Gain on sale of MPS -- -- 1,255 --
------------ ------------ ------------ ------------
Net loss $ (3,452) $ (1,066) $ (7,021) $ (5,924)
============ ============ ============ ============
Net loss per share $ (0.25) $ (0.08) $ (0.52) $ (0.49)
============ ============ ============ ============
Shares used in computing
net loss per share 13,685,308 13,274,475 13,522,226 11,995,761
============ ============ ============ ============
</TABLE>
See accompanying notes.
4
<PAGE> 5
TREGA BIOSCIENCES, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(in thousands)
<TABLE>
<CAPTION>
NINE MONTHS ENDED
SEPTEMBER 30,
----------------------
1997 1996
-------- --------
(Unaudited)
<S> <C> <C>
OPERATING ACTIVITIES
Net loss $ (7,021) $ (5,924)
Adjustments to reconcile net loss to net cash flows
used for operating activities:
Depreciation and amortization 570 436
Realized loss on sale of investment 88 --
Amortization of deferred compensation 495 341
Gain on sale of MPS (1,255) --
Changes in operating assets and liabilities:
Accounts receivable (59) (122)
Other current assets (539) (537)
Accounts payable (10) 238
Other accrued liabilities (618) 911
Deferred revenue 2,626 229
-------- --------
Net cash flows used for operating activities (5,723) (4,428)
INVESTING ACTIVITIES
Short-term investments (2,154) (21,738)
Additions to property and equipment, net (1,423) (374)
Proceeds from sale of MPS 503 --
Purchase of ChromaXome Corp., net of cash acquired -- 6
Other assets (1,520) (306)
-------- --------
Net cash flows used for investing activities (4,594) (22,412)
FINANCING ACTIVITIES
Principal payments under capital lease obligations (332) (295)
Proceeds from equipment financing agreement 1,290 --
Issuance of notes payable 1,687 62
Principal payments of notes payable (58) --
Redemption of preferred stock -- (2,819)
Issuance of common and preferred stock 695 38,572
-------- --------
Net cash flows provided by financing activities 3,282 35,520
-------- --------
Net (decrease) increase in cash and cash equivalents (7,035) 8,680
Cash and cash equivalents at beginning of period 13,615 1,161
======== ========
Cash and cash equivalents at end of period $ 6,580 $ 9,841
======== ========
SUPPLEMENTAL DISCLOSURES OF CASH FLOW INFORMATION
Cash paid during the year for interest $ 76 $ 69
======== ========
SUPPLEMENTAL DISCLOSURES OF NONCASH INVESTING AND
FINANCING ACTIVITIES
Property and equipment acquired under capital lease obligations $ -- $ 268
======== ========
Unrealized loss on investment available for sale $ -- $ 138
======== ========
Deferred compensation related to stock options $ -- $ 1,847
======== ========
Note receivable from the sale of MPS $ 1,089 $ --
======== ========
</TABLE>
See accompanying notes.
5
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TREGA BIOSCIENCES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
SEPTEMBER 30, 1997
(UNAUDITED)
1. BASIS OF PRESENTATION
The accompanying unaudited consolidated financial statements of Trega
Biosciences, Inc. (the "Company"), formerly Houghten Pharmaceuticals, Inc., have
been prepared in accordance with generally accepted accounting principles for
interim financial information and with the instructions to Form 10-Q and Article
10 of Regulation S-X. Accordingly, they 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. Operating results for the three and nine month periods ended
September 30, 1997, are not necessarily indicative of the results that may be
expected for the year ended December 31, 1997. For more complete information,
these financial statements should be read in conjunction with the audited
consolidated financial statements and footnotes thereto for the year ended
December 31, 1996, included in the Company's 1996 Annual Report on Form 10-K
filed with the Securities and Exchange Commission.
2. SIGNIFICANT ACCOUNTING POLICIES
Use of Estimates
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the amounts reported in the consolidated financial
statements and disclosures made in the accompanying notes to the consolidated
financial statements. Actual results could differ from those estimates.
Accounting Standard on Earnings per Share
In February 1997, the Financial Accounting Standards Board issued Statement
No. 128, "Earnings per Share," which is required to be adopted on December 31,
1997. At that time, the Company will be required to change the method currently
used to compute earnings per share and to restate all prior periods. The new
requirement for calculating primary earnings per share excludes the dilutive
effect of stock options. The adoption of this statement is not expected to have
a material impact on the Company as it is currently in a net loss position.
Therefore, stock options and warrants are not included in the computation of
earnings per share because their effect is anti-dilutive.
3. NET LOSS PER SHARE
Net loss per share is computed using the weighted average number of common
shares outstanding during the periods, as adjusted for the effects of certain
rules of the Securities and Exchange Commission for the period prior to the
Company's initial public offering which ended April 3, 1996. The number of
shares used in computing net loss per share also includes the preferred stock
which converted into common stock upon the closing of the Company's initial
public offering, effective April 3, 1996, as if they were converted into common
stock on their original dates of issuance.
4. COLLABORATIVE ARRANGEMENTS
On June 18, 1997, the Company entered into a Research and Development
Agreement with Ono Pharmaceutical Co., Ltd. ("Ono") whereby the Company received
$2,000,000 as a license fee in connection with the screening by the Company of
certain of its combinatorial libraries against certain of its biological
screens. The Company also received $2,000,000 in July 1997, for work to be done
during the first 12 months under the agreement and, subject to Ono's right of
early termination, will receive an additional $2,000,000 in July 1998 for
further research during an additional 12-month period. The research related
payments are treated as deferred revenue and recognized as revenues as related
work is performed under the contract. The Company will also receive milestone
and royalty payments on products it discovers which are subsequently developed
and marketed by Ono, if any. Under the arrangement, the Company is responsible
for screening its small-molecule combinatorial libraries and Ono's compound
files for active compounds at the melanocortin 1 receptor. Rights to
commercialize products resulting from the arrangement, if any, will
6
<PAGE> 7
TREGA BIOSCIENCES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
SEPTEMBER 30, 1997
(UNAUDITED)
4. COLLABORATIVE ARRANGEMENTS (Continued)
belong to Ono in China, Japan, South Korea and Taiwan and to Ono and the Company
in Europe, with the Company holding such rights with respect to North America
and the rest of the world.
On June 16, 1997, the Company entered into an arrangement with Northwest
Neurologic, Inc. ("NNL") whereby the Company received a non-exclusive license to
patents covering certain melanocortin receptors. In return, NNL received
non-exclusive access to a limited number of Trega's combinatorial libraries and
a $300,000 license fee of which $175,000 was paid in June 1997 with the
remaining $125,000 due to NNL in May 1998. Each company will be obligated to pay
to the other milestone and royalty payments on compounds developed and
commercialized using licensed technology, if any.
Effective April 15, 1997, the Company entered into a Restated and Third
Amended Research and Option Agreement (the "Restated Agreement") with the Torrey
Pines Institute for Molecular Studies ("TPIMS"). The Restated Agreement
provides, among other things, for (i) the assignment of patent rights to the
Company for certain technology previously invented at TPIMS, and the elimination
of royalties related thereto, (ii) an extension, through July 14, 1998, of the
existing funded research relationship between the parties, with a further
extension through April 14, 2000, upon agreement on a work plan pertaining to
such extension period, and (iii) scientific support from TPIMS for the benefit
of the Company in connection with the Company's collaborations with
biotechnology and pharmaceutical companies.
Under the terms of the Restated Agreement, the Company will pay $1,300,000
to TPIMS, plus accrued interest, in connection with the assignment of patent
rights to certain technology to the Company and the elimination of the related
royalties discussed in (i) above. The payment date will be no later than April
14, 2000, but should the Company not to extend the research relationship
described above, then the payment date will be April 14, 1998.
In addition, the Company is committed to provide research funding to TPIMS
of $1,631,000, as described in (ii) above, for the twelve-month period
commencing April 15, 1997. The Company, upon agreement on a work plan, will
extend the research relationship with TPIMS for an additional two years beyond
April 15, 1998, for total additional funding of $2,850,000. In the event the
Company does not extend the research period, the Company is committed to spend
an additional $463,000 for research at TPIMS for the period from April 15, 1998
through July 14, 1998.
Effective December 31, 1996, the Company entered into a drug discovery,
collaboration, and licensing arrangement with Chugai Biopharmaceuticals, Inc.
("Chugai"). Under the terms of this arrangement, the Company received, as an
advance towards future library access charges, a payment in January 1997 of
$1,250,000, and the Company will receive an additional payment of $1,000,000 in
December 1997. This arrangement includes both collaborative and independent
research and development activities by the parties utilizing therapeutic targets
provided by Chugai and small-molecule combinatorial libraries provided by the
Company. Collaborative activities, if successful, will result in the joint
ownership by Chugai and the Company of new compounds directed at certain
specified therapeutic targets. Other therapeutic targets are the subject of
separate research and development work by each of the parties independent of the
other. This work, if successful, will result in the ownership by Chugai and the
Company of their own compounds directed at certain identified therapeutic
targets which do not conflict with their collaborative activities.
On February 13, 1996, the Company entered into a collaborative arrangement
with Novo Nordisk A/S whereby the Company received $2,000,000 for library access
charges and received an additional $2,000,000 in February 1997. Payments have
been treated as deferred revenue and are recognized as revenue as libraries are
shipped. The Company will also receive milestone and royalty payments on
products discovered and subsequently developed and marketed by Novo Nordisk A/S,
if any.
In a Research and Supply Agreement entered into between the Company and The
Procter & Gamble Company ("P&G") on January 23, 1995, P&G obtained rights to
screen the Company's combinatorial libraries in certain therapeutic areas on an
exclusive basis for a 36-month period through January 23, 1998, with an option
to extend these rights for another year. This option has expired.
7
<PAGE> 8
TREGA BIOSCIENCES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
SEPTEMBER 30, 1997
(UNAUDITED)
Accordingly, after January 23, 1998, the Company will be entitled to allow other
parties the opportunity to screen in the therapeutic areas previously reserved
for P&G.
5. SALE OF MULTIPLE PEPTIDE SYSTEMS, INC.
On February 28, 1997, the Company sold all of the issued and outstanding
shares of the capital stock of Multiple Peptide Systems, Inc. ("MPS") to RAH
Acquisition Corp. ("Newco"), an entity formed by Richard A. Houghten, Ph.D.
("Dr. Houghten"). Dr. Houghten is the sole stockholder of Newco and is also a
founder of the Company. Prior to the sale of the MPS shares, Dr. Houghten also
was the Chief Technical Officer of the Company. In connection with such sale,
however, Dr. Houghten resigned as an officer of the Company. Dr. Houghten had
also been a Director of the Company, but did not stand for re-election at the
Annual Meeting of Stockholder's held on June 11, 1997. In addition to his prior
affiliation with the Company, Dr. Houghten is the founder of MPS and has been an
executive officer and Director of that entity. Dr. Houghten also is the founder,
an executive officer and a Director of TPIMS, a not-for-profit biomedical
research institution which performs contract research services for the Company.
Newco purchased the MPS shares for a purchase price of at least $2.25
million plus interest. Of that amount, $500,000 and $512,421 were received in
March and June 1997, respectively. An additional $500,000, plus applicable
interest, will be due in December 1997 with further payments due on the third,
fourth, and fifth anniversaries of the sale in an aggregate amount of not less
than $750,000. As part of the arrangements made in connection with the sale, the
Company has agreed, for a period of seven years, not to (i) engage in certain
activities which would be competitive with the business of MPS or (ii) license
certain technologies (which are presently licensed from the Company to MPS) to
entities which are engaged primarily in a business similar to the business of
MPS.
Prior to the Company's sale of the MPS shares, the business of MPS was
comprised of manufacturing and marketing certain peptides and other compounds to
government entities, universities, research institutions and private companies.
6. LEASES
On July 31, 1997, the Company was notified of approval for a $3,000,000
equipment financing line with Lease Management Services, Inc. for the financing
of the majority of its equipment needs. The Company intends to use this
financing source through mid-1998. The terms of the Company's loan agreement,
which became effective as of September 19, 1997, call for amounts drawn down
under the loan to be repaid monthly over a four-year term. As of September 30,
1997, the company received cash proceeds of $1,289,520 against this equipment
financing line.
On September 24, 1997, the Company entered into a lease covering a facility
located at 9880 Campus Point Drive, San Diego, California, not far from its
existing headquarters. The lease term extends for ten years from a defined
possession and commencement date. Management expects to relocate its entire
headquarters and all operations by the end of first quarter 1998. This building,
constructed in 1980, is 71,625 square feet, approximately 40,000 square feet
larger than the Company's existing occupied space. While the Company anticipates
occupying most of this space, a portion may be offered for subleasing. The
landlord has agreed to fund up to a specified amount of tenant improvements for
construction, project management, space planning, architect and engineering fees
and other related costs on behalf of the Company. The Company believes that the
amount of tenant improvements absorbed by the landlord is adequate to complete
necessary modifications to the building. Future minimum payments under this
operating lease are as follows (assuming a commencement date of March 24, 1998):
YEARS ENDED DECEMBER 31, OPERATING LEASE
------------------------ ---------------
1998 $ 1,487,000
1999 1,985,000
2000 2,054,000
2001 2,126,000
2002 2,200,000
---------------
$ 9,852,000
===============
8
<PAGE> 9
TREGA BIOSCIENCES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
SEPTEMBER 30, 1997
(UNAUDITED)
7. LOANS TO OFFICERS
In the third quarter of 1997, the Company loaned an aggregate of $175,000
to two of its officers who are also directors. Both loans bear interest at the
prime rate plus one percent. One of these loans, in the principal amount of
$75,000, has been repaid in full. The principal amount of the other loan will be
forgiven in equal quarterly installments (of $6,250) through June 11, 2001, and
becomes due and payable in the event of the recipient's termination of
employment with the Company.
8. ISSUANCE OF COMMON STOCK
On August 23, 1997, the Company issued 233,068 shares of common stock
previously reserved for issuance to the former stockholders of ChromaXome
Corporation ("CXC"), the Company's wholly-owned subsidiary, in connection with
the acquisition of CXC. Such issuance occurred as a result of certain milestones
being deemed met by the Company. An additional amount of 8,395 shares, currently
reflected as common stock issuable, is expected to be issued to certain former
stockholders of CXC pending completion of transfer agent documentation.
9
<PAGE> 10
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
Except for the historical information contained herein, the matters
discussed in this Quarterly Report on Form 10-Q are forward-looking statements
that involve risks and uncertainties (such forward-looking statements include,
without limitation, statements using words such as "may," "potential,"
"expects," "believes," "estimates," "plans," "intends," "anticipates" and
similar expressions). These forward-looking statements are subject to risks and
uncertainties, including those set forth below and under the caption "Risk
Factors," that could cause actual results to vary materially from those
projected. These forward-looking statements speak only as of the date hereof.
The Company expressly disclaims any obligation or undertaking to release
publicly any updates or revisions to any forward-looking statement contained
herein to reflect any change in the Company's expectations with regard thereto
or any change in events, conditions or circumstances on which any such statement
is based.
OVERVIEW
Trega Biosciences, Inc. (the "Company"), formerly Houghten Pharmaceuticals,
Inc., is a drug discovery company utilizing combinatorial chemistry,
combinatorial biology and other technologies to pursue the discovery of novel,
small-molecule drug therapies. The Company has devoted substantially all of its
resources since its founding to developing methods to synthesize and screen
large libraries of chemicals for new drug discovery and optimization, to
developing a select number of chemical compounds as potential pharmaceutical
products, and to acquiring or developing technologies with the potential to
expand the methods available to generate drug candidates.
The Company leverages its technology platform by entering into
pharmaceutical alliances, enabling partners to access the Company's technologies
in exchange for licensing fees and potential milestone payments and royalties,
or by establishing joint-discovery alliances with biotechnology and
pharmaceutical companies. The timing and amounts of revenues from such
alliances, if any, are subject to significant fluctuations and therefore the
Company's results of operations for any period may not be comparable to the
results of operations for any other period. The Company will be required to
conduct significant research, development and production activities during the
next several years to fulfill its obligations to corporate partners and for the
development of its own compounds. The Company has been unprofitable since its
inception and does not anticipate having net income in the next several years.
As of September 30, 1997, the Company's accumulated deficit was approximately
$53,278,000.
Effective February 28, 1997, the Company sold all of the issued and
outstanding shares of the capital stock of its former subsidiary, Multiple
Peptide Systems, Inc. ("MPS"), to a company formed by Richard A. Houghten, Ph.D.
Dr. Houghten is the scientific founder of the Company. Newco purchased the MPS
shares for a purchase price of at least $2.25 million plus interest. Of that
amount, $500,000 and $512,421 were received in March and June 1997,
respectively. An additional $500,000, plus applicable interest, will be due in
December 1997 with further payments due on each of February 28, 2000, 2001 and
2002. (See Note 5 of Notes to the Company's Consolidated Financial Statements.)
The Company and its predecessors have been parties to a Research and Option
Agreement, as amended, since July 1, 1992, with the Torrey Pines Institute for
Molecular Studies ("TPIMS"). A primary purpose of the Company's relationship
with TPIMS has been to give the Company access to support services provided by
TPIMS scientific personnel and to give the Company a source of combinatorial
libraries and other discoveries to license and exploit in the conduct of its
business. As of April 15, 1997, in substitution from the prior research and
option agreement as amended, the Company entered into a Restated and Third
Amended Research and Option Agreement with TPIMS (the "Restated Agreement"). The
Restated Agreement provides, among other things, for (i) the acquisition by the
Company of certain technology previously invented at TPIMS, and the elimination
of royalties related thereto, (ii) an extension through July 14, 1998, of the
existing funded research relationship between the parties, with a further
extension through April 14, 2000, upon agreement on a work plan pertaining to
such extension period, and (iii) scientific support from TPIMS for the benefit
of the Company in connection with the Company's collaborations with
biotechnology and pharmaceutical companies. (See Note 4 of Notes to the
Company's Consolidated Financial Statements included elsewhere herein.)
RESULTS OF OPERATIONS
The Company recorded revenues of approximately $1,437,000 for the third
quarter and $5,381,000 for the nine-month period ended September 30, 1997,
compared with $4,569,000 and $7,024,000 for the same periods in 1996. The third
quarter revenues for 1997 were derived entirely from the shipment of
combinatorial libraries or individual compounds under collaborative research
agreements. Third quarter revenues for 1996 included $591,000 generated from the
shipment of combinatorial libraries or individual compounds under collaborative
agreements, $609,000 derived from the sale of custom peptides by the Company's
former subsidiary,
10
<PAGE> 11
MPS, and $3,369,000 resulting from the receipt, by MPS, of 275,000 shares of
Magainin Pharmaceuticals, Inc. common stock in exchange for a royalty interest
in Magainin's lead compound, MSI-78. Revenues from collaborative research
arrangements for the nine months ended September 30, 1997 and 1996 were
approximately $4,863,000 and $1,932,000, respectively. The increased revenues
result from upfront license fees and a higher number of shipments of
combinatorial libraries. An additional $88,000 in contract research revenues for
the nine months ended September 30, 1997 were derived from grant revenues.
Revenues recorded for the year-to-date ended September 30, 1997 include
$2,000,000 as a license fee pertaining to an agreement with Ono Pharmaceutical
Co., Ltd. (See Note 4 of Notes to the Company's Consolidated Financial
Statements.) The sale of custom peptides and combinatorial peptide libraries by
the Company's former subsidiary, MPS, accounted for revenues of approximately
$430,000 and $1,723,000 for the first nine months of 1997 and 1996,
respectively. All MPS activity for 1997 is confined to the first two months,
after which MPS was sold.
As of September 30, 1997, the Company's financial statements reflect a
liability for deferred revenue in the amount of approximately $4,384,000. This
represents the excess of payments received from research collaborators over the
revenue recognized from libraries shipped or work performed. These payments are
generally not refundable.
Cost of revenues decreased to approximately $0 and $341,000 in the three
and nine months ended September 30, 1997 from approximately $479,000 and
$1,429,000 for the respective periods in 1996. The decrease in cost of revenues
from 1996 to 1997 is due to the sale of MPS on February 28, 1997.
The Company incurred research and development expenses totaling
approximately $3,860,000 for the three months ended September 30, 1997 and
$10,088,000 for the nine months ended September 30, 1997, as compared to
$3,241,000 and $8,410,000, respectively, for the same periods in 1996. Increased
spending in research and development during the third quarter and nine months of
1997 compared to the same periods in 1996 resulted primarily from increased
funding for (i) the Company's combinatorial chemistry program, largely
reflecting the commencement of an internal combinatorial chemistry program
(initiated in February 1996), (ii) the Company's automation and robotics
synthesis program and (iii) the Company's combinatorial biology technology
program (conducted through its subsidiary, ChromaXome Corporation
("ChromaXome"), acquired in August 1996). The increased spending for the
internal combinatorial chemistry program was partially offset by reduced
spending under arrangements with TPIMS (including the Restated Agreement).
Funding to TPIMS was $401,000 for the three months and $1,365,000 for the nine
months ended September 30, 1997, as compared to $622,000 and $1,944,000,
respectively, for the same periods ended September 30, 1996. Research and
development expenses for the three and nine months ended September 30, 1997
include $500,000 and $939,000, respectively, compared to $500,000 and $1,285,000
for the same periods in 1996, respectively, for the Company's collaboration with
Dura Pharmaceuticals, Inc. ("Dura") to evaluate delivery of the Company's lead
compound, HP 228, in Dura's dry powder inhalation system. This collaboration was
initiated in February 1996 and is a related party transaction. The Company
expects to incur continued and substantial increases in research and development
expenses relating to its combinatorial chemistry program, product development
and clinical trials, development of combinatorial biology technologies (through
ChromaXome) and development of other drug discovery technologies.
The Company's selling, general and administrative expenses total
approximately $1,341,000 and $4,253,000 for the three and nine months ended
September 30, 1997 as compared to $994,000 and $2,654,000, respectively, for the
same periods in 1996. These expenses include administrative salaries and legal,
finance, investor relations and corporate development activities. Increases in
selling, general and administrative expenses for the three and nine month
periods ending September 30, 1997 compared to the same periods in 1996 are
primarily attributable to higher legal costs incurred for patents, litigation
and corporate development activities and costs associated with being a public
company. Selling, general and administrative expenses are expected to increase
as the Company's research and corporate development activities increase.
The Company's interest income decreased to approximately $369,000 for the
third quarter ended September 30, 1997 compared to $408,000 for the same period
in 1996 as a result of decreasing cash balances. However, the interest income
for the nine months ending September 30, 1997 increased overall to $1,100,000
from $917,000 in the same period in 1996 as a result of lower cash balances in
first quarter 1996, as the proceeds from the initial public offering were not
received until the second quarter of 1996.
In the first quarter of 1997, the Company recorded a gain of $1,259,000 in
connection with the sale of MPS on February 28, 1997. An adjustment of $4,000 to
this amount was made in the second quarter 1997, resulting in a final gain of
$1,255,000. (See Note 5 of Notes to the Company's Consolidated Financial
Statements.)
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<PAGE> 12
LIQUIDITY AND CAPITAL RESOURCES
As of September 30, 1997, the Company had cash, cash equivalents and
short-term investments totaling approximately $22,474,000 compared with
$27,443,000 at December 31, 1996.
On September 24, 1997, the Company entered into a lease covering a facility
located at 9880 Campus Point Drive, San Diego, California, not far from its
existing headquarters. The lease term extends for ten years from a defined
possession and commencement date. Management expects to relocate its entire
headquarters and all operations by the end of first quarter 1998. This building,
constructed in 1980, is 71,625 square feet, approximately 40,000 square feet
larger than the Company's existing occupied space. While the Company anticipates
occupying most of this space, a portion may be offered for subleasing. The
landlord has agreed to fund up to a specified amount of tenant improvements for
construction, project management, space planning, architect and engineering fees
and other related costs on behalf of the Company. The Company believes that the
amount of tenant improvements absorbed by the landlord is adequate to complete
necessary modifications to the building. (See Note 6 of Notes to the Company's
Consolidated Financial Statements.)
On July 31, 1997, the Company was notified of approval for a $3,000,000
equipment financing line with Lease Management Services, Inc. for the financing
of the majority of its equipment needs. The Company intends to use this
financing source through mid-1998. The terms of the Company's loan agreement,
which became effective September 19, 1997, call for amounts drawn down under the
loan to be repaid monthly over a four-year term. As of September 30, 1997, the
company received cash proceeds of $1,289,520 against this equipment financing
line. (See Note 6 of Notes to the Company's Consolidated Financial Statements.)
On June 18, 1997, the Company entered into a Research and Development
Agreement with Ono Pharmaceutical Co., Ltd. ("Ono") whereby the Company received
$2,000,000 as a license fee in connection with the screening by the Company of
certain of its combinatorial libraries against certain of its biological
screens. The Company also received $2,000,000 in July 1997, for work to be done
during the first 12 months under the agreement and, subject to Ono's right of
early termination, will receive an additional $2,000,000 in July 1998. The
research related payments are treated as deferred revenue and recognized as
revenues as related work is performed under the contract. The Company will also
receive milestone and royalty payments on products it discovers which are
subsequently developed and marketed by Ono, if any. (See Note 4 of Notes to the
Company's Consolidated Financial Statements.)
On June 16, 1997, the Company entered into an arrangement with Northwest
Neurologic, Inc. ("NNL") whereby the Company received a non-exclusive license to
patents covering certain melanocortin receptors. In return, NNL received
non-exclusive access to a limited number of Trega's combinatorial libraries and
a $300,000 license fee of which $175,000 was paid in June 1997 with the
remaining $125,000 due to NNL in May 1998. Each company will be obligated to pay
to the other milestone and royalty payments on compounds developed and
commercialized using licensed technology, if any. (See Note 4 of Notes to the
Company's Consolidated Financial Statements.)
Pursuant to the Restated Agreement, entered into with TPIMS on April 15,
1997, the Company is committed to spend $1,631,000, due in quarterly
installments, for the twelve-month period commencing April 15, 1997, of which
$859,000 has been paid through September 30, 1997. The Company has also agreed
to pay TPIMS the amount of $1,300,000 under the terms of the Restated Agreement,
plus accrued interest, in connection with the acquisition of certain technology
and the elimination of related royalties. The payment date will be no later than
April 14, 2000; however, if the Company does not extend research under the
Restated Agreement beyond July 14, 1998, then the payment date for such
$1,300,000 will be April 14, 1998. (See Note 4 of Notes to the Company's
Consolidated Financial Statements.)
In connection with the Company's research agreement with Dura, the Company
is committed to fund $6,000,000 over four years in a drug discovery and
development collaboration using Dura's proprietary drug delivery technology and
the Company's Cytokine Regulating Agents (such as HP228). As of September 30,
1997, $2,854,000 had been funded under the Dura agreement.
Pursuant to a drug discovery collaboration with Novo Nordisk A/S, the
Company received $2,000,000 in February 1996 as an advance payment of library
access fees and received an additional $2,000,000 in February 1997. Payments
have been treated as deferred revenue and are recognized as revenue as libraries
are shipped.
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<PAGE> 13
Effective December 31, 1996, the Company entered into a drug discovery
collaboration and license agreement with Chugai Biopharmaceuticals, Inc.
("Chugai"). Under the terms of the agreement, the Company received, as an
advance towards future library access charges, an upfront payment in January
1997 of $1,250,000 and will receive an additional payment of $1,000,000 in
December 1997.
The Company's future cash requirements will depend on many factors,
including continued scientific progress in its research and development
programs, the acquisition or initiation of new research and development
programs, the costs involved in filing, prosecuting and enforcing patents,
competing technological and market developments, the scope and results of
clinical trials, the time and costs involved in obtaining regulatory approvals
and the cost of product commercialization. It is probable, however, that for the
foreseeable future, the Company's cash requirements will exceed its revenues.
The Company intends to seek additional funding through research and development
agreements with suitable corporate collaborators and through public or private
financings if available and consistent with the Company's business objectives.
The Company expects that its primary potential revenue source for the
foreseeable future will be additional collaborative agreements. There can be no
assurances, however, that such collaboration arrangements, or any public or
private financings, will be available on acceptable terms, if at all. If
adequate funds are not available, the Company may be required to delay, reduce
the scope of, or eliminate one or more of its research or development programs
or take other measures to cut costs, which could have a material adverse effect
on the Company.
The Company estimates that its existing capital resources, together with
equipment financing, will be sufficient to fund its current and planned
operations through 1998. There can be no assurances, however, that changes in
the Company's research and development plans or other changes affecting the
Company's operating expenses will not result in the expenditure of such
resources before such time. In any event, the Company will need to raise
substantial additional capital to fund its operations in future periods.
RISK FACTORS
The Company wishes to caution readers that the following important factors,
among others detailed from time to time in the Company's filings with the
Securities and Exchange Commission (such as the Company's Annual Report on Form
10-K for 1996), in some cases have affected, and in the future could affect, the
Company's actual results and could cause the Company's actual consolidated
results for future periods to differ materially from those expressed in any
forward-looking statements made by, or on behalf of, the Company.
NEW AND UNCERTAIN TECHNOLOGIES AND BUSINESS
Drug discovery methods based upon combinatorial chemistry technology are
relatively new compared to traditional methods of drug discovery and there can
be no assurance that these methods will lead to the discovery or development of
commercial pharmaceutical products or that the Company will be able to employ
these or other methods of drug discovery successfully. The Company's
combinatorial biology technology program (conducted through its subsidiary,
ChromaXome) is at an early stage of development, and there can be no assurance
that such technology will be developed or employed successfully. Moreover, the
Company's efforts to synthesize compounds through automation are at an early
state of development, and there can be no assurance that such automation will
work efficiently, be employed successfully or otherwise enhance the Company's
ability to engage effectively in drug discovery.
The types of combinatorial libraries the Company is capable of offering and
the nature of the compounds the Company is able to synthesize or have
synthesized will, in large part, determine the demand for the Company's drug
discovery capabilities. An inability to offer competitive libraries or an
inability to synthesize or have synthesized compounds that have actual or
potential utility would have a material adverse effect on the Company. Failures
in the field of drug discovery, including combinatorial chemistry, could have a
material adverse effect on the Company.
DEPENDENCE ON COLLABORATORS
The Company's strategy for the utilization of its drug discovery
technologies and for the development, clinical testing, manufacturing and
commercialization of any compounds depends upon the formation of collaborations
and arrangements with corporate collaborators, licensers, licensees and others.
There may only be a limited number of pharmaceutical and biotechnology companies
that would potentially collaborate with the Company. Historically,
pharmaceutical and biotechnology companies have conducted lead compound
identification and optimization within their own research departments, due to
the highly proprietary nature of the activities being conducted, the central
importance of these activities to their drug discovery and development efforts,
and the
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<PAGE> 14
desire to obtain maximum patent and other proprietary protection on the results
of their internal programs. Pharmaceutical and biotechnology companies must be
convinced that the Company's drug discovery technologies and expertise justify
outsourcing these programs to the Company. The amount and timing of resources
that current and future collaborators, if any, devote to collaborations with the
Company are not within the control of the Company. There can be no assurance
that such collaborators will perform their obligations as expected or that the
Company will derive any additional revenue from such arrangements. Because the
Company's arrangements with its collaborators may entail the provision of
identical or similar libraries or compounds to multiple parties, there can be no
assurance that conflicts will not arise between collaborators as to proprietary
rights to particular libraries or as to particular compounds in the Company's
libraries. Moreover, the Company's collaborations may be terminated under
certain circumstances by its collaborators, which terminations could result in
the Company relinquishing rights to products developed jointly with its
collaborators. Any such termination could have a material and adverse effect on
the Company.
There can be no assurance that (i) the Company's present or any future
collaborators will not pursue their existing or alternative technologies in
preference to those of the Company, (ii) any product will be developed and
marketed as a result of such collaborations, (iii) the Company will be able to
negotiate additional collaborative arrangements in the future (or expand or
extend existing arrangements) on acceptable terms, if at all, or (iv) that such
current or future collaborative arrangements will be successful. To the extent
that the Company chooses not to or is unable to establish such arrangements, it
will require substantially greater capital to undertake the research,
development and marketing of products at its own expense. In addition, the
Company may encounter significant delays in developing compounds or find that
the development, manufacture or sale of its proposed products is materially and
adversely affected by the absence of such collaborative agreements.
EARLY STAGE OF PRODUCT DEVELOPMENT
To date, the Company has itself developed only one drug candidate (HP 228)
that has entered the early stages of human clinical testing. Even though HP 228
has demonstrated indications of efficacy in preclinical models and the results
of certain Phase I and II studies have shown no significant safety concerns,
there can be no assurance that HP 228 will be demonstrated to be effective in
treating human diseases or safe in further trials. Lack of progress, adverse
results or discontinuation of the HP 228 clinical programs could have a material
adverse effect on the Company. HP 228 or other compounds, if any, resulting from
the Company's research and development programs are not expected to be
commercially available for a number of years even if they are successfully
developed and proven to be safe and effective. There can be no assurance that
any of the Company's product development efforts will be successfully completed,
that a development arrangement with a pharmaceutical partner will be
established, that regulatory approvals will be obtained or will be as broad as
sought, that any candidate products will be capable of being produced in
commercial quantities at reasonable cost or that any products, if introduced,
will achieve market acceptance or profitability.
FUTURE CAPITAL NEEDS; UNCERTAINTY OF ADDITIONAL FUNDING
The continued development of the Company's technologies and compounds will
require the commitment of substantial additional funds to continue to maintain
the competitiveness of its drug discovery technologies and to conduct the costly
and time consuming research and preclinical and clinical testing necessary to
bring products to market. The Company's future capital requirements will depend
on many factors, including, among others, (i) continued scientific progress in
its research and development programs, (ii) the ability of the Company to
establish and maintain collaborative arrangements with respect to the Company's
drug discovery technologies and the clinical testing of candidate products,
(iii) progress with preclinical and clinical trials, (iv) the costs involved in
developing internal combinatorial chemistry capabilities, (v) the costs involved
in developing additional drug discovery technologies, including combinatorial
biology and the synthesis of compounds through automation, (vi) the costs
involved in preparing, filing, prosecuting, maintaining and enforcing patent
claims, (vii) competing technological and market developments, (viii) changes in
its existing research relationships, (ix) the exercise of the Company's option
to extend the term of the Company's present agreement with TPIMS and (x)
effective commercialization activities and arrangements. Although the Company
estimates that its existing capital resources will be sufficient to fund its
current and planned operations through 1998, there can be no assurance that
changes will not occur that would consume available capital resources before
such time.
The Company anticipates that it will be required to raise additional
capital over a period of several years in order to conduct its operations. Such
capital may be raised through research and development agreements with suitable
corporate collaborators and public or private financings. There can be no
assurance that additional financing will be available on acceptable terms, if at
all. If adequate funds are not available, the Company may be required to delay,
reduce the scope of or eliminate one or more of its research or development
programs or take other measures to cut costs, which could have a material
adverse effect on the Company.
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<PAGE> 15
COMPETITION
The Company is engaged in a highly competitive and rapidly changing
industry. The Company competes not only with other combinatorial chemistry
companies, but also with companies utilizing other technologies (such as
combinatorial biology) for the same objectives. Competition from fully
integrated pharmaceutical companies and biotechnology companies and other drug
discovery companies is intense and is expected to increase. Many pharmaceutical
and biotechnology companies, which represent the largest potential market for
the Company's combinatorial chemistry and other drug discovery technologies,
have developed or are developing internal combinatorial chemistry and other drug
discovery technology programs or have entered into collaborations with companies
conducting such programs. Many of these pharmaceutical companies, as compared
with the Company, have significantly greater financial resources and expertise
in research and development, manufacturing, preclinical and clinical testing,
obtaining regulatory approvals and marketing. Smaller companies may also prove
to be significant competitors, particularly through collaborative arrangements
with large pharmaceutical and established biotechnology companies. Academic
institutions, governmental agencies and other public and private research
organizations also conduct research, seek patent protection and establish
collaborative arrangements for products and clinical development and marketing
which may be competitive with the Company's efforts. These companies and
institutions compete with the Company in recruiting and retaining highly
qualified scientific and management personnel. There is also competition for
access to novel pharmacophores and desirable assays to use for screening of
libraries, and any inability of the Company to develop novel pharmacophores or
maintain access to a sufficiently broad range of assays for screening potential
drugs would have a material adverse effect on the Company. There can be no
assurance that the Company's competitors will not develop more effective or more
affordable technologies or products, or achieve earlier product development and
commercialization than the Company, thus rendering the Company's technologies
and/or products obsolete, uncompetitive or uneconomical. In combinatorial
chemistry and other drug discovery technologies, the Company faces competition
based on a number of factors, including size and diversity of libraries, ease of
use of libraries, speed and costs of identifying and optimizing potential lead
compounds and patent position.
In addition, products and therapies that will compete directly with any
compounds that the Company seeks to develop (such as HP 228) currently exist or
are being developed. In product development and marketing, the Company will face
competition based on product efficacy and safety, the timing and scope of
regulatory approvals, availability of supply, marketing and sales capability,
reimbursement coverage, price and patent position.
PATENTS AND PROPRIETARY TECHNOLOGY
The Company's success will depend in large part on its ability to obtain
patents for its methodologies and the compounds and other products, if any,
resulting from the application of such methodologies, as well as defend patents
once obtained, maintain trade secrets and operate without infringing upon the
proprietary rights of others, both in the U.S. and in foreign countries. The
patent positions of pharmaceutical and biotechnology companies, and companies
utilizing drug discovery technologies such as combinatorial chemistry and
combinatorial biology, including the Company, are uncertain and involve complex
legal and factual questions for which important legal principles are largely
unresolved. There can be no assurance that the Company or TPIMS will develop or
obtain the rights to products or processes that are patentable, that patents
will issue from any of the pending applications or that claims allowed will be
sufficient to protect the Company's technologies or products. Pending patent
applications for which rights are uncertain include applications being
prosecuted by the Company on behalf of TPIMS for certain aspects of library
generation technology (libraries-from-libraries) and the Company with respect to
its combinatorial chemistry libraries and certain uses for HP 228, as well as
patent applications filed by the Company (through ChromaXome) with respect to
certain aspects of the combinatorial biology technologies being developed by the
Company (through ChromaXome). There can be no assurance that the patents of, or
with respect to which rights have been licensed to, the Company or TPIMS will
not be challenged, invalidated or circumvented, or that the rights granted or
licensed to the Company or TPIMS will provide proprietary protection or
competitive advantages to the Company. Such patents include a U.S. patent for
the Tea Bag technology, which is licensed to the Company, the Company's U.S.
patent for the composition of matter of HP 228 and certain uses of HP 228, a
U.S. patent of TPIMS for certain aspects of the positional scanning technology
and a further U.S. patent with respect to which rights have been licensed to
TPIMS (on a non-exclusive basis) for other aspects of the positional scanning
technology. The U.S. patent on the Tea Bag technology, that the Company believes
is important to the Company's business, expires in 2003. Competitors (some of
which have, or are affiliated with companies having, substantially greater
resources than the Company) may have filed applications, may have been issued
patents or may obtain additional patents and proprietary rights to or for the
use of certain methodologies relating to products or processes competitive with
those of the Company or which could block the Company's efforts to obtain
patents or conduct its business.
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<PAGE> 16
A number of pharmaceutical companies, biotechnology companies, universities
and research institutions have filed patent applications or received patents in
the fields of combinatorial chemistry, combinatorial biology and other drug
discovery technologies and with respect to products and therapies that may have
potential uses which are similar to the Company's current research and
development areas. The commercial success of the Company will depend in part on
the Company's not infringing patents or rights of third parties, and not
breaching the patent and know-how licenses upon which any of the Company's
technologies or compounds are based or having such licenses breached or
terminated by others. Certain patent applications or patents may conflict with
the Company's patent applications and patents, or rights under patent
applications and patents of third parties which are licensed to the Company
(such as from TPIMS), either by claiming the same methods or compounds or by
claiming methods or compounds which would dominate those of or licensed to the
Company. A U.S. patent application is maintained under conditions of
confidentiality while the application is pending in the U.S. Patent and
Trademark Office ("PTO") so that the Company cannot determine the inventions
being claimed in pending patent applications filed by its competitors in the
PTO. Any such conflicts could result in a significant reduction of the coverage
of the Company's issued or licensed patents, or rights under patent applications
and patents of third parties which are licensed to the Company (such as from
TPIMS), and materially and adversely affect the Company's ability to benefit
from the issuance of significant patent protection from the Company's
applications or the applications of third parties (such as TPIMS) licensing
rights to the Company. In addition, if patents are issued to other companies
which contain competitive or conflicting claims, the Company may be required to
obtain licenses to these patents or to develop or obtain alternative technology.
If any license is required, there can be no assurance that the Company will be
able to obtain any such license on commercially favorable terms, if at all. If
such licenses are not obtained, the Company could be prevented from pursuing the
development or commercialization of its technologies or potential products. The
Company's breach of an existing license or failure to obtain a license to any
technology that it may require to commercialize its technologies or its
potential products may have a material adverse impact on the Company.
Litigation, which could result in substantial costs to the Company, may
also be necessary to enforce any patents issued or licensed to the Company or to
determine the scope and validity of third party proprietary rights. There can be
no assurance that the Company's issued or licensed patents would be held valid
by a court of competent jurisdiction or that an alleged infringer would be found
to be infringing. Further, with respect to certain technology in-licensed by the
Company, the Company does not have the right to control any litigation with
respect to such technology. An adverse outcome could subject the Company to
significant liabilities to third parties, require disputed rights to be licensed
from third parties or require the Company to cease using such technology, any of
which could have a material adverse effect on the Company. Moreover, merely the
uncertainties resulting from institution and continuation of any
technology-related litigation could have a material adverse effect on the
Company's ability to compete in the marketplace pending resolution of the
disputed matters. If competitors of the Company prepare and file patent
applications in the U.S. that claim technology also claimed by the Company, the
Company may have to participate in interference proceedings declared by the PTO
to determine the priority of the invention, which could result in substantial
cost to the Company, even if the outcome is favorable to the Company. An adverse
outcome could subject the Company to significant liabilities to third parties
and require the Company to license disputed rights from third parties or
discontinue using the technology.
The Company also relies on trade secrets to protect technology, especially
where patent protection is not believed to be appropriate or obtainable. The
Company attempts to protect its proprietary technology and processes in part
through confidentiality agreements with its employees, consultants and certain
contractors. There can be no assurance, however, that these agreements will not
be breached or terminated, that the Company would have adequate remedies for any
breach, or that the Company's trade secrets will not otherwise become known or
be independently discovered by competitors. The Company, as well as its
consultants and research collaborators in their work for the Company, use
intellectual property owned by others. Disputes may arise as to the rights in
technology resulting from these collaborations and in the related know-how and
inventions. The Company relies on certain technologies to which it does not have
exclusive rights or which may not be patentable or proprietary and thus may be
available to competitors.
RELIANCE ON OUTSIDE CONTRACTOR FOR COMBINATORIAL CHEMISTRY
The Company presently has a relationship with an independent contractor,
TPIMS, to conduct a material portion of its combinatorial chemistry technology
program and synthesis of iterations of libraries previously developed by TPIMS.
TPIMS utilizes technology which is potentially important to the Company, some of
which is licensed to TPIMS from a third party. TPIMS is an independent entity
and the Company believes TPIMS is not within the control of the Company. The
contract between the Company and TPIMS permits TPIMS complete freedom to select
the methods to be used in pursuing its research on behalf of the Company. A
discontinuation of work by TPIMS for the Company could have a material adverse
effect on the Company.
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HISTORY OF OPERATING LOSSES; UNCERTAINTY OF FUTURE PROFITABILITY
The Company has experienced significant operating losses since inception.
For the years ended December 31, 1996, 1995 and 1994, the Company had net losses
of approximately $11,688,000, $9,490,000 and $9,052,000, respectively. For the
nine months ended September 30, 1997, the Company recorded a net loss of
$7,021,000 and had an accumulated deficit at September 30, 1997 of approximately
$53,278,000. The Company expects to incur additional operating losses over the
next several years and expects cumulative losses to increase substantially as
the Company's research and development efforts and preclinical and clinical
testing are expanded. The Company expects that its ability to achieve
profitability will be largely dependent upon the ability of the Company to enter
into and achieve success under additional collaborative arrangements. There can
be no assurance that the Company will be successful in entering into additional
collaboration arrangements that will result in revenues or that the Company will
receive additional revenues under existing collaboration arrangements. Any
revenues from the achievement of milestones, royalties or license fees from the
discovery, development or sale of a commercial drug by a collaborator are not
expected to be material to the Company's financial position for several years,
if at all. The Company is unable to predict when, if ever, it will become
profitable.
POSSIBLE VOLATILITY OF STOCK PRICE
The market prices for securities of life sciences companies have been
highly volatile and the market has experienced significant price and volume
fluctuations, some of which are unrelated to the operating performance of
particular companies. Announcements of technological innovations or new
commercial products or failures of potential products by the Company or its
competitors, developments in the Company's relationships with current or future
collaborative partners, developments concerning proprietary rights, including
patents and litigation matters, publicity regarding actual or potential results
with respect to compounds under development by the Company (such as HP 228),
regulatory developments in both the U.S. and foreign countries, public concern
as to the efficacy of combinatorial chemistry or other new drug discovery
technologies, changes in reimbursement policies, general market conditions, as
well as quarterly fluctuations in the Company's revenues and financial results
and other factors, may have a significant impact on the market price of the
Company's Common Stock. In particular, the realization of any of the risks
described in these "Risk Factors" may have a material adverse impact on such
market price.
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PART II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
On August 21, 1997, the Company announced the settlement of an action filed
on October 7, 1996 in San Diego Superior Court against the Company, ChromaXome
and certain present and former officers and directors of the Company by Michael
Dickman and Katie Thompson, the founders of ChromaXome. Promptly following such
settlement, the action was dismissed. Disclosure with respect to such action has
been included in the Company's Annual Report on Form 10-K for 1996 and the
Company's Quarterly Reports on Form 10-Q during 1997.
ITEM 2. CHANGES IN SECURITIES AND USE OF PROCEEDS
(c) On August 25, 1997, the Company sold 12,121 shares of its Common Stock
to one entity in exchange for contract rights worth $50,000 under a
professional services agreement. The price per share was determined
based upon the closing price for shares of the Company's common stock
on the Nasdaq National Market on August 25, 1997. The acquiring entity
is an "accredited investor," as that term is defined in Rule 501 under
the Securities Act of 1933, as amended (the "1933 Act"), and the
shares are restricted for purposes of Rule 144 under the 1933 Act
(and appropriate legends will be affixed to certificates representing
such shares). The Company relied upon the exemption from registration
set forth in Section 4 (2) of the 1933 Act with respect to such
transaction.
(d) Pursuant to Registration Statements on Form S-1 which became effective
on March 29, 1996 (SEC File Nos. 333-1376 and 333-2982), the Company
registered an offering of 3,795,000 shares of its common stock at
$8.00 per share for an aggregate price of $30,360,000. Pursuant to the
closing of the Company's initial public offering of common stock on
April 3, 1996 and the exercise by the underwriters of a related
over-allotment option on April 8, 1996, 3,300,000 shares and 495,000
shares were sold, respectively, at $8.00 per share. The managing
underwriters of the offering were Dillon, Read & Co. Inc., Hambrecht &
Quist and Salomon Brothers Inc. Net proceeds, after deducting
underwriting commissions and discounts of $2,125,200 and other
offering costs of $893,000, were $27,341,800. Use of proceeds through
September 30, 1997, was as follows:
Acquisition of Other Businesses $ 228,397
Commercial Paper $ 497,895
Redemption of Series One Preferred Stock $ 2,818,820
HP228 Clinical Trials $ 1,539,482
CRA Development $ 8,053,995
Combinatorial Chemistry $ 8,357,528
General & Corporate $ 5,845,683
The use of proceeds described above do not represent a material change
in the use of proceeds described in the prospectus, except that less
has been spent to date on HP228 clinical trials and a correspondingly
greater amount has been spent on the Company's combinatorial chemistry
program. None of the proceeds used (including underwriting commissions
and discounts and other offering costs) were paid to persons or
entities that were, at the time, affiliates, directors or officers of
the Company, associates of officers or directors, or persons owning
10% or more of any class of equity security of the Company.
The use of proceeds described above represents disclosure of the
application of all offering proceeds.
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ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K.
(a) Exhibits
EXHIBIT NO. DESCRIPTION
----------- -----------
10.1 Lease between the Company and Aid Association for
Lutherans, dated September 24, 1997, for premises at
9880 Campus Point Drive.
10.2 Equipment Financing Line between the Company and Lease
Management Services, Inc. dated September 19, 1997.
10.3 Note for $100,000 from Robert S. Whitehead dated June
12, 1997.
10.4 Note for $ 75,000 from Lawrence D. Muschek dated
September 18, 1997.
27 Financial Data Schedule
(b) Reports on Form 8-K.
None.
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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.
Trega Biosciences, Inc.
Date: 11/14/97 /s/ ROBERT S. WHITEHEAD
-----------------------------------
Robert S. Whitehead
President and Chief Executive Officer
(Principal Executive Officer)
Date: 11/14/97 /s/ FARIBA F. GHODSIAN, Ph.D.
-----------------------------------
Fariba F. Ghodsian, Ph.D.
Strategic and Financial Advisor and
Acting Chief Financial Officer
(Principal Financial and Accounting
Officer)
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<PAGE> 1
LEASE
By and Between
Aid Association for Lutherans,
a Wisconsin Corporation
and
Trega Biosciences, Inc.,
a Delaware Corporation
<PAGE> 2
LEASE
THIS LEASE is made as of September 24, 1997 (the "Effective Date"), by
and between Aid Association for Lutherans, a Wisconsin corporation ("Landlord")
and Trega Biosciences, Inc., a Delaware corporation ("Tenant").
1. Lease of Premises
1.1 Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord upon the terms and conditions hereof those certain premises (the
"Demised Premises") within the building (the "Building") on the land described
on Exhibit "A-1" attached hereto, and to have the mailing address set forth in
Section 2.1.1. The Demised Premises are shown on the plans attached hereto as
Exhibit "A-2" and are situated on the such floors and /or suites in the Building
as set forth in Section 2.1.2. The land upon which the Building is located, the
Building located thereon and all landscaping , parking facilities and other
improvements and appurtenances related thereto, including, without limitation,
driveways, sidewalks, parking areas, and landscaped areas, shall be a part of
the development known as the 9880 Campus Point Drive Building and are
hereinafter collectively referred to as the "Project", the legal description and
site plan for which is attached hereto as Exhibit "A". All portions of the
Building which are for the non-exclusive use of the Tenant are hereinafter
referred to as "Building Common Areas". All portions of the Project which are
for the non-exclusive use of the Tenant at the Project, exclusive of the
Building Common Areas, hereinafter referred to as "Project Common Areas".
Building Common Areas and Project Common Areas may hereinafter be collectively
referred to as "Common Areas."
2. Basic Lease Provisions
2.1 For convenience of the parties, certain basic provisions of this
Lease are set forth herein. The provisions set forth herein are subject to the
remaining terms and conditions of this Lease and are to be interpreted in light
of such remaining terms and conditions.
2.1.1 Address of the Building
9880 Campus Point Drive
San Diego, California 92121
2.1.2 Designation of Tenant's Building: 1
Designation of Tenant's Suite: 100
2.1.3 Initial Area of Demised Premises, Building and Project all
as subject to adjustment in accordance with Section 8
hereof.
(a) Initial Area of the Demised premises:
Initial Rentable Area: 71,625 sq. ft.
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(b) Initial Area of the Building:
Initial Rentable Area: 71,625
(c) Initial Area of the Project:
Initial Rental Area: 71,625
2.1.4 Initial Basic Annual Rent:
(71,625 sq. ft.) x ($2.25 per sq. ft.) x (12) =
$1,933,875.00
2.1.5 Initial Monthly Rental Installments:
(71,625 sq. ft.) x ($2.25 per sq. ft. ) = $161,156.25
2.1.6 Initial Tenant's Pro Rata Share of Building:
100%
2.1.7 Initial Tenant's Pro Rata Share of Project:
100%
2.1.8 Term of Lease:
(a) Term Commencement Date: As defined in Section 4.2
hereof.
(b) Term Expiration Date: Ten (10) years from the Term
Commencement Date, subject to extension or earlier
termination as provided herein.
2.1.9 Security Deposit: $161,156.25, subject to increase in
accordance with Sections 10.2 and 10.3 hereof.
2.1.10 Permitted Use:
Administrative and research facility and related offices
consistent with Sections 10.2 and 10.3 hereof
2.1.11 Address for Rent Payment:
610 West Ash Street
San Diego, California 92101-3351
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Address for Notices to Landlord:
4321 North Ballard Road
Appleton, Wisconsin 54919-0001
Address for Notices to Tenant:
9880 Campus Point Drive
San Diego, California 92121
Attention: Susan Hanan
with a copy of Notices for Tenant to:
Pillsbury Madison & Sutro LLP
725 South Figueroa Street
Suite 1200
Los Angles, CA 90017
Attention: Jackie Park, Esq.
2.1.12 Tenant's Improvement Plan Approval Date: [Defined in Work
Letter to be attached]
2.1.13 Space Plan Approval Date: [Defined in Work Letter to be
attached]
2.1.14 The following Exhibits are attached hereto and incorporated
herein: "A", "A-1", "A-2", "B", "C", "D", "E", and "F".
[Form of Exhibits to be attached].
3. Term
3.1 This Lease shall take effect upon the Effective Date, and, except
as specifically otherwise provided within this Lease, each of the provisions
hereof shall be binding upon and inure to the benefit of Landlord and Tenant,
and each of their respective successors and permitted assigns, from the
Effective Date.
3.2 The term of this Lease (the "Term") shall be that period from the
Term Commencement Date as defined in Section 4.2 below through the Term
Expiration Date, as such may be terminated or extended as provided herein.
4. Possession and Commencement Date
4.1 Landlord shall endeavor to tender possession of the Demised
Premises to Tenant on or before one hundred eighty (180) days from the date this
Lease is executed by both parties (the "Target Term Commencement Date"), with
Landlord's Work (as defined in Exhibit "B" attached hereto (the "Work Letter")),
and Tenant's Improvement Work (as defined in the Work Letter) Substantially
Completed (as such in the Work Letter). Tenant agrees that, in the event
Landlord fails to tender possession of the Demised Premises with Landlord's Work
and Tenant's Improvement Work Substantially Completed on or before the
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Target Term Commencement Date, Landlord shall not be liable to Tenant for any
loss or damage resulting therefrom, and this Lease shall not be void or voidable
except as provided below this Section 4.1. In such event, however, Tenant shall
not be liable for any Basic Annual Rent or Operating Expenses (as defined below)
until the Term Commencement Date set forth in Section 4.2 below. In the event
Landlord has not tendered possession of the Demised Premises to Tenant with
Landlord's Work and Tenant Improvement Work Substantially Completed on or before
the date which is six (6) months after the Target Term Commencement Date (as
extended for Tenant-Caused Delays and Force-Majeure Delays), then either
Landlord or Tenant may, by written notice to the other delivered within ten (10)
days thereafter, elect to terminate this Lease. In the event this Lease is
terminated pursuant to this Section 4.1, the Security Deposit shall be returned
to Tenant and Landlord shall pay to Tenant, the Tenant's out-of-pocket costs
incurred in connection with entering into this Lease and designing and
constructing the Tenant Improvements. Landlord shall make such payment within
thirty (30) days following receipt by Landlord of Tenant's notice of Tenant's
election to terminate this Lease. Upon such payment, neither Landlord nor Tenant
shall have any further duties or obligation under this Lease, except with
respect to provisions which, by their terms, survive a termination of the Lease.
4.2 The "Term Commencement Date" shall be the earlier of (i) the date
Landlord tenders possession of the Demised Premises to Tenant with Landlord's
Work and Tenant's Improvement Work Substantially Completed; (ii) the date Tenant
opens for business in the Demised Premises or an part thereof; (iii) the date of
issuance of a certificate of occupancy (either permanent or temporary) for the
Demised Premises by the [City of San Diego Building Department or such other
municipal agency having jurisdiction over the Demised Premises]; (iv) the date
Landlord would have tendered possession of the Demised Premises to Tenant with
Landlord's Work and Tenant's Improvement Work Substantially Completed, but for
any Tenant-Caused Delays; or (v) such earlier date as is provided in the Work
Letter. In no such event however, shall the Term Commencement Date occur later
than two hundred twenty five (225) days from the date this Lease is executed by
both parties (as extended for Landlord-Caused Delays and Force-Majeure Delays).
Landlord and Tenant shall each execute and deliver to the other written
acknowledgment of the Term Commencement Date and the Term Expiration Date when
such is established and shall attach the acknowledgment to this Lease as part of
Exhibit "E"; however, failure to execute and deliver such acknowledgment shall
not affect Landlord's or Tenant's rights or liabilities hereunder.
4.3 Landlord shall allow Tenant to enter upon the Demised Premises
prior to the Term Commencement Date for the purpose of performing Tenant's Work
(as defined in the Work Letter) provided such entry does not unreasonably
interfere with the performance by Landlord of Landlord's Work or Tenant's
Improvement Work. Such entry shall not advance the Term Commencement Date but
shall be subject to all the terms and conditions of this Lease other than the
payment of Basic Annual Rent or Operating Expense.
4.4 Access to and possession of areas necessary for utilities,
services, safety and operation of the Building and the Project is reserved to
Landlord.
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4.5 Landlord shall cause to be constructed the tenant improvements in
the Demised Premises ("Tenant Improvements") pursuant to the Work Letter
attached hereto as Exhibit "B" at a cost to the Landlord not to exceed Forty
Dollars ($40.00) per rentable square foot of the Demised Premises ("Tenant
Improvement Allowance") which shall include the cost of construction, project
management by Landlord (the "Coordination Fee", as defined in the Work Letter
attached hereto), cost of space planning, architect, engineering and other
related services, building permits and other planning and inspection fees
incurred by Landlord on behalf of and pursuant to the consent thereto by Tenant.
If Landlord reasonably determines at any time that the total cost of the Tenant
Improvements will exceed the Tenant Improvement Allowance, then Tenant shall
immediately, and as a condition to Landlord's obligation to expend or disburse
any portion of the Tenant Improvement Allowance, deposit with Landlord an amount
sufficient to pay such excess. Tenant shall have three hundred sixty (360) days
from the date this Lease is executed by both parties to expend the unused
portion Tenant Improvement Allowance, after which date Landlord's obligation to
fund such costs shall expire.
5. Rent
5.1 Tenant agrees, commencing on the Term Commencement Date, to pay
Landlord as Basic Annual Rent for the Demised Premises the sum set forth in
Section 2.1.4 subject to the rental adjustments provided in Article 6 hereof.
Basic Annual Rent shall be paid in the equal monthly installments set forth in
Section 2.1.5, subject to the rental adjustments provided in Article 6 hereof,
each in advance on the first day of each and every calendar month during the
Term. Notwithstanding anything to the contrary set forth herein, Tenant shall
have no obligation to pay Basic Annual Rent for any periods prior to the Term
Commencement Date.
5.2 In addition to Basic Annual Rent, Tenant agrees to pay to Landlord
as additional rent ("Additional Rent") at times hereinafter specified in this
Lease (i) Tenant's pro rata share which is set forth in Section 2.1.6 and 2.1.7
("Tenant's Pro Rata Share") of Operating Expenses for the Building and the
Project as provided in Article 7 and (ii) any other amounts that Tenant assumes
or agrees to pay under the provisions of this Lease that are owed to Landlord,
including, without limitation, any and all other sums that may become due by
reason of any default of Tenant or failure on Tenant's part to comply with the
agreements, terms, covenants and conditions of this Lease to be performed by
Tenant, after notice and lapse of applicable cure period. The pro rata share of
Tenant's portion of Building Operating Expenses which is set forth in Section
2.1.6 ("Tenant's Pro Rate Share of Building") and of Tenant's portion of Project
Operating Expenses which is set forth in Section 2.1.7 ("Tenant's Pro Rata Share
of Project") shall be determined on or before the execution of this Lease when
the actual Rentable Square Footage of the Building, the Demised Premises and the
Project are established pursuant to Section 8 hereof, and Landlord and Tenant
shall attach an acknowledgment of such actual Tenant's Pro Rate Share of
Building and Tenant's Pro Rata Share of Project to this Lease as part of Exhibit
"E", however, failure to execute and deliver such acknowledgment shall not
affect Landlord's or Tenant's rights or liabilities hereunder.
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5.3 Basic Annual Rent and Additional Rent shall together be
denominated "Rent". Rent shall be paid to Landlord, without abatement,
deduction, or offset, in lawful money of the United States of America, at the
office of Landlord as set forth in Section 2.1.10 or to such other person or at
such other place as Landlord may from time designate in writing. In the event of
Term commences or ends on a day other than the first days of a calendar month,
then the Rent for such fraction of a month shall be prorated for such period on
the basis of a thirty (30) day month and shall be paid at the then current rate
for such fractional month.
6. Rent Adjustments
The Basic Annual Rent shall be adjustment upward in the amount of
three and one-half percent (3.5%) of the prior year's Basic Annual Rent,
beginning on the first anniversary of the Term Commencement Date and every (12)
months thereafter throughout the Term.
7. Operating Expenses
7.1 As used herein, the term "Operating Expenses", with respect to the
Building or the Project, as applicable, shall include:
7.1.1 Government impositions including, without limitations,
property tax costs consisting of real and personal property taxes and
assessments (including amounts due under any improvement bond upon the Building
or the project, including the parcel or parcels of real property upon which the
Building or Project, and areas serving the Building or Project, are located or
assessments levied in lieu thereof) imposed by any governmental authority or
agency; any tax on or measured by gross rentals received from the rental of
space in the Building or the Project, or tax based on the square footage of the
Demised Premise, the Building or the Project as well as any parking charges,
utilities surcharges, or any other costs levied, assessed or imposed by, or at
the direction of, or resulting from statutes or regulations, or interpretations
thereof, promulgated by any federal, state, regional, municipal or local
government authority in connection with the use or occupancy of the Building or
the Project or the parking facilities serving the Building or the Project; any
tax on this transaction or any document to which Tenant is a party creating or
transferring an interest in the Building or the Project; any fee for a business
license to operate an office building; and any expenses, including the
reasonable cost of attorneys or experts, reasonably incurred by Landlord in
seeking reduction by the taxing authority of the applicable taxes, less tax
refunds obtained as a result of an application for review thereof. Operating
Expenses shall not include any net income franchise, capital stock, estate or
inheritance taxes or taxes which are the personal obligation of Tenant or of
another tenant of the Project.
7.1.2 All other costs of any kind paid or incurred by
Landlord in connection with the operation and maintenance of the Building or the
Project including, by way of examples and not as a limitation upon the
generality of the foregoing, costs of repairs and replacements to the Building
or improvements within the Project as appropriate to maintain the Building or
the Project as required hereunder, including cost of funding such reasonable
reserves as Landlord, consistent with good business practice, may establish to
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provide for future repairs and replacements; costs of utilities furnished to the
Building or Project Common Areas; sewer fees; cable T.V., when applicable; trash
collection; cleaning, including windows; heating, ventilation and
air-conditioning; maintenance of landscape and grounds; maintenance of drives
and parking areas; security services and devices; building supplies; maintenance
and replacement to equipment utilized for operation and maintenance of the
Building or the Project; license, permit and inspection fees; sales, use and
excise taxes on goods and services purchased by Landlord in connection with the
operation, maintenance or repair of the Project or the Building systems and
equipment; telephone, postage, stationary supplies and other expenses incurred
in connection with the operation, maintenance or repair of the Project; license,
permit inspection fees; sales, use and excise taxes on goods and services
purchased by Landlord in connection with the operation, maintenance or repair of
the Building or the Project; accounting, legal and other professional fees and
expenses incurred in connection with the Building or the Project; the cost of
furniture, draperies, carpeting, landscaping and other customary and ordinary
items of personal property provided by Landlord for use in the Building or
Project Common Areas or in the management office of the Building or Project so
long as such office shall be strictly used by Landlord in connection with the
managing the Building and shall not be used by Landlord in connection with any
leasing activities or any other purpose for any other entity; capital
expenditures; costs of complying with any applicable laws; hazardous waste
remediation; rules or regulations; insurance premiums, including premiums for
public liability, property casualty, earthquake and environmental coverages;
portions of insured losses paid by Landlord as part of the deductible portion of
such loss by reason of insurance policy terms; service contracts; costs of
services of independent contractors retained to do work of the nature or type
referenced herein; and costs of compensation (including employment taxes and
fringe benefits) of all persons at the level of Building Manager and below who
perform regular and recurring duties connected with the day-to-day operation and
maintenance of the Building, the Project, their respective equipment, the
adjacent walks, landscaped areas, drives, and parking areas, including without
limitation, janitors, floor waxers, window-washers, watchmen, gardeners,
sweepers, and handymen and costs of management services, which costs of
management services shall not exceed two percent (2%) of the annual Rent due
from Tenant.
7.1.3 Notwithstanding the foregoing, Operating Expenses
shall not include any: (i) ground lease rentals; (ii) costs of items for capital
repairs, replacements, improvements and equipment ("Capital Items"), (iii)
marketing costs including, without limitation, leasing commissions, attorney's
fees in connection with the negotiation and preparation of letters, deal memos,
letters of intent, leases, and space planning costs; (iv) costs arising from
Landlord's charitable or political contributions; (v) costs associated with the
operation of the business of the partnership or entity which constitutes
Landlord as the same are distinguished from the costs of the operation of the
Project, including partnership accounting and legal matters, costs of defending
any lawsuits with any mortgagee (except as the actions of Tenant may be in
issue), costs of selling, syndicating, financing, mortgaging or hypothecating
any of Landlord's interest in the Project, costs of any disputes between
Landlord and its employees (if any) not engaged in Project operation, or
disputes of Landlord with Building management: (vi) costs of any flowers, gifts,
balloons, etc., provided to any entity whatsoever, to include, but not limited
to Tenant, employees, vendors, and contractors; (vii) any "finders fees",
brokerage commissions, job placement costs or job advertising cost,
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other than with respect to a receptionist or secretary in the Building office,
once per year; (viii) costs of any magazine, newspaper, trade or other
subscriptions; (ix) costs for any "tenant relations" parties, events or
promotion not consented to by an authorized representative of Tenant in writing;
(x) costs for any leasing commissions; (xi) costs for any expenses which related
to preparation of rental space for a tenant; (xii) costs relating to the initial
development and construction of the Building or the Tenant Improvements,
including but not limited to, grading, paving, landscaping, and decorating (as
distinguished from maintenance repair and replacement of the foregoing); (xiii)
legal expenses relating to other tenants; (xiv) costs of repair to the extent
reimbursed by payment received by Landlord of insurance proceed; (xv) interest
upon loans to Landlord or secured by mortgage or deed of trust covering the
Building or the Project or a portion thereof (provided interest upon a
government assessment or improvement bond payable in installments is an
Operating Expense under subparagraph 7.1.1 above); (xvi) salaries of executive
officers of Landlord; (xvii) depreciation claimed by Landlord for tax purposes
(provided this exclusion of "depreciation" is not intended to delete from
Operating Expenses actual costs of repairs and replacements and reasonable
reserves in regard thereto which are provided for in subparagraph 7.1.2 above);
and (xviii) taxes of the types set forth within the last sentence of
subparagraph 7.1.1) above.
7.1.4 Notwithstanding the foregoing, if during the Term of
this Lease, Landlord installs or replaces any Capital Items for items Landlord
is responsible for under Section 17.1 herein, Lessor may include in Operating
Expenses, charges for depreciation on the same so as to amortize the cost of
such Capital Item over a commercially reasonably warranty period for such
Capital Items on a straight line basis.
7.2 Tenant shall pay to Landlord on the first day of each calendar
month of the Term, as Additional Rent, Landlord's estimate of Tenant's Pro Rata
Share of Building Operating Expenses and Tenant's Pro Rata Share of Project
Operating Expenses for such month.
7.2.1 Within ninety (90) days after the conclusion of each
calendar year, (or such longer period as may be reasonably required but in no
event in excess of 180 days) Landlord shall furnish to Tenant a statement
showing on a line item by line item basis the actual Operating Expenses and
Tenant's Pro Rata Share of Building and Project Operating Expenses for the
previous two calendar years. Any additional sum due from Tenant to Landlord
shall be immediately due and payable within thirty (30) days of receipt by
Tenant of an invoice therefor from Landlord. If the amounts paid by Tenant
pursuant to Section 7.2 exceeds Tenant's Pro Rata Share of Building or Project
Operating Expenses for the previous calendar year, Landlord shall at Landlord's
option either (1) credit the excess to the next succeeding installments of
estimated Additional Rent or (2) pay the excess to Tenant within thirty (30)
days after delivery of such statement.
7.2.2 Any amount due under Section 7.2 for any period which
is less than a full month shall be prorated (based on a thirty (30) day month)
for such fractional month.
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7.3 Landlord's annual statement shall be final and binding upon Tenant
unless Tenant, within one hundred eighty (180) days after Tenant's receipt
thereof, shall contest in good faith any item therein by giving written notice
to Landlord, specifying each item contested and the reason therefor. If during
such one hundred eighty (180) day period, Tenant contests the correctness of
Landlords' statement of Tenant's Pro Rata Share of Building or Project Operating
Expanses, Landlord will provide Tenant with access to Landlord's books and
records and such information as Landlord reasonably determines to be responsive
to Tenant' questions. In the event that after Tenant's review of such
information, Landlord and Tenant cannot agree upon the amount of Tenant's Pro
Rata Share of Building or Project Operating Expenses, then Tenant shall have the
right to have an independent public accounting form selected from among the ten
(10) largest in the United States hired by Tenant (at Tenant's sole cost and
expense, provided that if such audit and/or review reveals that Landlord's
determination of Tenant's Pro-Rata Share of Building and Project Operating
Expenses as set forth for the year in question was in error in Landlord's favor
by more than two percent (2%), Landlord shall pay the cost of such audit and/or
review) and approved by Landlord (which approval shall not be unreasonably
withheld or delayed) audit and/or review such Landlord's books and records for
the year in question (the "Independent Review"). The results of any such
Independent Review shall be binding on Landlord and Tenant. If the Independent
Review shows that Tenant's Pro Rata Share of Building or Project Operating
Expenses actually paid for the calendar year in question exceeded Tenant's
obligations for such calendar year, Landlord shall at Landlord's option either
(1) credit the excess to the next succeeding installments of estimated
Additional Rent or (2) pay the excess to tenant within thirty (30) days after
delivery of such statement. If the Independent Review shows that Tenant's
payments of Tenant's Pro Rata Share of Building or Project Operating Expenses
for such calendar year were less than Tenant's obligation for the calendar year,
Tenant shall pay the deficiency to the Landlord together with a fee of One
Thousand Dollars ($1,000) to reimburse Landlord for Landlord's cost in
connection with such audit and/or review within thirty (30) days after delivery
of such statement
7.4 Tenant shall not be responsible for Building or Project Operating
Expenses attributable to the time period prior to the Term Commencement Date.
The responsibility of Tenant for Tenant's Pro Rata Share of Building and Project
Operating Expenses shall continue to the latest of (i) the date of termination
of the Lease, (ii) the date of Tenant has fully vacated the Demised Premises
(including, without limitation, the removal of all items required hereby to be
removed and the completion of all procedures necessary to fully release and
terminate any permits or licenses restricting the use of the Demised Premises in
any manner), or (iii) if termination of the Lease is due to the default of
Tenant, the date of rental commencement of a replacement tenant.
7.5 Building and Project Operating Expenses for the calendar year in
which Tenant obligation to share therein commences and in the calendar year in
which such obligation ceases, shall be prorated on a basis reasonably determined
by Landlord. Expenses such as taxes, assessments and insurance premiums which
are incurred for an extended time period shall be prorated based upon time
periods to which applicable so that the amount attributed to the Demised
Premises relate in a reasonable manner to the time period wherein Tenant has an
obligation to share in Building and Project Operating Expenses.
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8. Rentable Area
8.1 Landlord and Tenant have agreed that on or before the execution of
this Lease, Chapo & Hall Architects, (the "Architect") shall determine the
actual Rentable Areas of the Demised Premises, the Building, and the Project
(the "Rentable Area") and Landlord and Tenant shall attach an acknowledgment of
such actual Rentable Areas of the Demised Premises, the Building, and the
Project to this Lease as part of Exhibit "E"; however, failure to execute and
deliver such acknowledgment shall not affect Landlord's or Tenant's rights or
liabilities hereunder.
8.2 Review of allocations of Rentable Areas as between tenants of the
Building and/or the Project may be made as frequently as in Landlord's opinion
appears appropriate in order to facilitate an equitable apportionment of any
Operating Expenses which are incurred on a Building or Project basis, as
applicable. Such review shall be performed by the Architect or by another
licensed architect selected by Landlord, and, after consultation with Tenant and
certification as correct by such licensed architect, the parties shall be bound
by such certifications.
9. Security Deposit
9.1 Tenant shall deposit with Landlord on the date of mutual execution
of this Lease the sum set forth in Section 2.1.9 (the "Security Deposit"), which
Security Deposit shall be held by Landlord as security for the performance by
Tenant of all of the terms, covenants and conditions of this Lease to be kept
and performed by tenant during the Term hereof. If Tenant defaults with respect
to any provision of this Lease and any applicable cure periods provided for
under Section 23.4 hereof have expired, including but not limited to any
provision relating to the payment of Rent, Landlord may (but shall not be
required to) use, apply or retain all or any part of the Security Deposit for
the payment of any Rent or any other sum in default, or to compensate Landlord
for any other loss or damage which Landlord may suffer by reason of Tenant
default. If any portion of the Security Deposit is so used or applied, Tenant
shall, within thirty (30) days of receipt of demand therefor, deposit cash with
Landlord in an amount sufficient to restore the Security Deposit to its original
amount and Tenant's failure to do so shall be a material breach of this Lease.
Landlord shall not be required to keep the Security Deposit separate from its
general fund. Tenant shall not be entitled to any interest on the Security
Deposit.
9.2 In the event of bankruptcy or other debtor-creditor proceedings
against the Tenant, the Security Deposit shall be deemed to be applied first to
the payment of Rent and other charges due Landlord for all periods prior to the
filing of such proceedings.
9.3 Landlord shall deliver the Security Deposit by Tenant to any
purchaser of Landlord's interest in the Demised Premises and thereupon Landlord
shall be discharged from any further liability with respect to such Security
Deposit. This provision shall also apply to any subsequent transfers.
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9.4 If Tenant shall fully and faithfully perform every provision of
this Lease to be performed by it, the Security Deposit, or any balance thereof,
shall be returned to Tenant (or, at Landlord's option, to the last assignee of
Tenant's interest hereunder) within thirty (30) days after the expiration or
earlier termination of this Lease.
9.5 Tenant agrees to provide Landlord with a Hazardous Materials List
(as defined in Section 38.1.1 hereof) prior to the Term Commencement Date for
review and approval by an environmental consulting firm licensed by the State of
California (the "Environmental Consultant") selected by Landlord. At any time
thereafter during the Term of this Lease, Tenant agrees upon written notice from
Landlord, to provide Landlord and the Environmental Consultant with an updated
Hazardous Materials List for Landlord's review. In the event that upon the
Environmental Consultant's review of the Hazardous Materials List, the
Environmental Consultant reasonably determines that Tenant's Hazardous Materials
categories used at the Demised Premises, the Building or the Project have
changed to a more toxic category, then upon Tenant's receipt of written notice
of such determination from the Landlord, Tenant shall deposit an additional
$322,312.50 with the Landlord, which amount shall be added to and treated as a
part of the Security Deposit.
10. Use
10.1 Tenant shall use the Demised Premises for the purpose set forth
in Section 2.1.10 and shall not use the Demised Premises, or permit or suffer
the Demised Premises to be used, for any other purpose without the prior written
consent of Landlord which may be withheld in Landlord's sole discretion.
10.2 Tenant shall not use or occupy the Demised Premises in violation
of any federal, state and local laws and regulations, zoning ordinances, or of
the certificate of occupancy issued for the Building, and shall, upon five (5)
days written notice from Landlord, discontinue any use of the Demised Premises
which is declared or claimed by any governmental authority having jurisdiction
to be a violation of law, regulation or zoning ordinance or of said certificate
of occupancy, or which in the reasonable opinion of Landlord violates law,
regulation or zoning ordinance or the certificate of occupancy; provided,
however, that Tenant shall have the right, in good faith, to contest such
alleged violation. Tenant shall comply with any direction of any governmental
authority having jurisdiction which shall, by reason of the nature of Tenant's
use or occupancy of the Demised Premises, impose any duty upon Tenant or
Landlord with respect to the Demised Premises or with respect to the use or
occupation thereof.
10.3 Tenant shall not do or permit to be done anything which will
invalidate or increase the cost of any fire, environmental, extended coverage or
any other insurance policy covering the Building and Project and shall comply
with all rules, orders, regulations, and requirements of the insurers of the
Building and Project and Tenant shall promptly within thirty (30) days of
receipt of demand reimburse Landlord for any additional premium charged for such
policy by reason of Tenant's failure to comply with the provisions of this
section.
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10.4 Tenant shall keep all doors opening onto public corridors closed,
except when in used for ingress and egress.
10.5 No additional locks or bolts of any kind shall be placed upon any
of the doors or windows by Tenant nor shall any changes be made in existing
locks or the mechanism thereof without the prior written consent of Landlord
which consent shall not be unreasonably withheld. Tenant must, upon termination
of this Lease return to Landlord all keys to offices and restrooms, either
furnished to, or otherwise procured by Tenant. In the event any key so furnished
is lost, Tenant shall pay to Landlord the cost of replacing the same or of
changing the lock or locks opened by such lost key if Landlord shall deem it
necessary to make such change.
10.6 No awnings or other projection shall be attached to any outside
wall of the Building. No curtains, blinds, shades or screens shall be attached
to or hung in, or used in connection with, any window or door of the Demised
Premises other than Landlord's standard window coverings. Neither the interior
nor exterior of any windows shall be coated or otherwise sunscreened without the
express written consent of Landlord, nor shall any bottles, parcels, or other
articles be placed on the windowsills. No equipment, furniture or other items of
personal property shall be placed on any exterior balcony without the express
written consent of Landlord.
10.7 Tenant will have the exclusive right to display it's signs on the
Building subject to Landlord's prior written approval, (which approval shall not
be unreasonably withheld or delayed), and subject to all restrictions and
requirements of applicable law and of any covenants, conditions and restrictions
or other written agreements now or hereinafter applicable to the Project. No
other sign, advertisement, or notice shall be exhibited, painted or affixed by
Tenant on any part of the Demised Premises or the Building without the prior
written consent of Landlord.
10.8 No equipment weighing five hundred (500) pounds, or greater,
shall be placed upon the Demised Premises without advance notice to and approval
by Landlord and placement, if approved by Landlord, shall be at a location
designed to carry the weight of such equipment.
10.9 Tenant shall not do or permit anything to be done in or about the
Demised Premises, Building or Project which use shall in any way be for an
immoral, unlawful or objectionable purpose, nor shall Tenant knowingly cause,
maintain or permit any nuisance or waste in, on, or about the Demised Premises,
Building or Project.
10.10 Notwithstanding any other provision herein to the contrary,
Tenant shall be responsible for all liabilities, costs and expense arising out
of or in connection with the compliance of the Demised Premises, Building or
Project with the Americans With Disabilities Act, 42 U.S.C. Sec. 12101, et seq.
(together with regulations promulgated pursuant thereto, "ADA") and Tenant shall
indemnify, defend and hold harmless from and against any loss, cost, liability
or expense (including reasonable attorneys fees and
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disbursements) arising out of any failure of the Demised Premises, Building or
Project to comply with the ADA.
11. Brokers
11.1 Tenant and Landlord represent and warrant to each other that it
has had no dealings with any real estate broker or agent in connection with the
negotiation of this Lease other than John Burnham & Company and The Sande
Company (collectively, the "Brokers"), as has been disclosed in writing to each
party and that it knows of no other real estate broker or agent who is or might
be entitled to a commission with this Lease. Landlord shall pay the Brokers a
leasing commission pursuant to a separate agreement.
11.2 Tenant agrees to indemnify, defend, hold and save Landlord
harmless from and against any and all claims for any commission for fees in
connection with this Lease made by any broker or finder having worked, or
claiming to have worked, on behalf of Tenant, other than Brokers.
11.3 Tenant represents and warrants that no broker or agent has made
any representation or warranty relied upon by Tenant in Tenant's decision to
enter into this Lease other than as contained in this Lease.
11.4 Tenant acknowledges and agrees that the employment of brokers by
Landlord is for the purpose of solicitation of offers of lease from prospective
tenants and no authority is granted to any broker to furnish any representation
(written or oral) or warranty from Landlord unless expressly contained within
this Lease. Landlord in executing this Lease does so in reliance upon Tenant's
representations and warranties contained within Sections 11.1 and 11.3 herein.
12. Holding Over
12.1 If, with Landlord's express written consent, Tenant holds
possession of all or any part of the Demised Premises, Building or Project after
the expiration or earlier termination of the Term, Tenant shall become a tenant
from month-to-month upon the date of such expiration or earlier termination, and
in such case Tenant shall continue to pay Basic Annual Rent in the amount
payable upon the date of the expiration or earlier termination of this Lease,
and all other provisions, representations, covenants and agreements contained
herein, other than with respect to the Term and any extension thereof, but
specifically including, without limitation, the adjustment of Basic Annual Rent
pursuant to Section 6 hereof, shall remain in full force and effect.
12.2 Notwithstanding the foregoing, if Tenant remains in possession of
the Demised Premises, Building or Project after the expiration or earlier
termination of the Term without the express written consent of Landlord, Tenant
shall become a tenant at sufferance upon the terms of this Lease except that the
monthly rental shall be equal to the greater of (i) one hundred fifty percent
(150%) of the Rent (Basic Annual Rent and Additional Rent) in
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effect during the last thirty (30) days of the Term or (ii) the prevailing
market rate as established by an M.A.I. appraiser selected by Landlord.
12.3 Acceptance by Landlord of Rent after such expiration or earlier
termination of the Term shall not result in a renewal or reinstatement of this
Lease.
12.4 The foregoing provisions of this Article 12 are in addition to
and do not affect Landlord's right to re-entry or any other rights of Landlord
hereunder or as otherwise provided by law.
13. Taxes on Tenant's Property
13.1 Tenant shall pay, prior to delinquency any and all, taxes levied
against any personal property or trade fixtures placed by tenant in or about the
Demised Premises, Building or Project; provided, however that Tenant shall have
the right, in good faith, to contest such taxes.
13.2 If any such taxes on Tenant's personal property or trade fixtures
are levied against Landlord or Landlord's property or, if the assessed valuation
of the Building or Project is increased by the inclusion therein of a value
attributable to Tenant's personal property or trade fixtures, and if Landlord,
after written notice to Tenant pays the taxes based upon such increase in the
assessed valued, then Tenant shall within thirty (30) days of receipt of demand
to repay to Landlord the taxes so levied against Landlord.
14. Common Areas, Parking Facilities
14.1 Tenant shall have the exclusive right to use the Common Areas,
subject to the rules and regulations adopted by Landlord and attached hereto as
Exhibit "C" together with such other reasonable and nondiscriminatory rules and
regulations as are hereafter promulgated by Landlord in its discretion (the
"Rules and Regulations").
14.2 As an appurtenance to the Demised Premises, Tenant shall have a
exclusive revocable license to use the entire parking facilities within the
Project during the entire Lease Term and any extensions thereto at no additional
charge to Tenant.
14.3 Landlord reserves the right to modify the Common Areas (including
the right to add or remove exterior landscaping).
15. Utilities and Services
15.1 Tenant shall pay for all water, (including the cost to service,
repair and replace reverse osmosis, deionized and other treated water) gas,
heat, light, power, telephone and other utilities supplied to the Demised
Premises, Building or Project together with any fees, surcharges and taxes
thereon.
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15.2 Landlord shall not be liable for nor shall any eviction of Tenant
result from the failure to furnish any such utility or service whether or not
such failure is caused by accident, breakage, repairs, strikes, lockouts or
other labor disturbances or labor disputes of any character, governmental
regulation, moratorium or other governmental action, inability despite the
exercise of reasonable diligence or by any other cause. In the event of such
failure, Tenant shall not be entitled to any abatement or reduction of Rent, nor
be relieved from the operation of any covenant or agreement of this Lease.
15.3 Tenant shall pay directly to the applicable utility or service
provider, prior to delinquency, for any separately metered utilities and
services which may be furnished to Tenant or the Demised Premises, Building or
Project during the Term.
15.4 Tenant shall not, without the prior written consent of Landlord,
use any device in the Demised Premises, including, but without limitation, data
processing machines, which will in any way increase the amount of ventilation,
air exchange, gas, steam, electricity or water beyond the existing capacity of
the Building Systems.
15.5 Landlord shall provide water in Common Areas for drinking and
lavatory purposes only, but if Tenant requires, uses or consumes water for any
purpose in addition to ordinary drinking and lavatory purposes Landlord may
install a water meter and thereby measure Tenant's water consumption for all
purposes. Tenant shall pay Landlord for Landlord's actual cost of the meter and
the cost of the installation thereof and throughout the duration of Tenant's
occupancy, thereof and through the duration of Tenant's occupancy, Tenant shall
keep said meter and installation equipment in good working order and repair at
Tenant's own cost and expense, the default of which Landlord may cause such
meter and equipment to be replaced or repaired and collect the cost thereof from
Tenant. Tenant agrees to pay for water consumed, as shown on said meter, as and
when bills are rendered, and on default in making such payment, Landlord may pay
such charges and collect the same from Tenant. Any such costs or expenses
incurred, or payments made by Landlord for any of the reasons or purposes
hereinabove stated shall be deemed to be Additional Rent payment by Tenant and
collectible by Landlord as such.
15.6 Landlord reserves the right to stop service of the elevator,
plumbing, ventilation, air conditioning and electric systems, when necessary, by
reason of accident or emergency or for repairs, alterations or improvements, in
the judgment of Landlord desirable or necessary to be made, until said repairs,
alterations or improvements shall have been completed, and Landlord shall
further have no responsibility or liability for failure to supply elevator
facilities, plumbing, ventilation, air conditioning or electric service, when
prevented from doing so by strike or accident, or by laws, rules, order,
ordinances, directions, regulations or requirements of any federal, state,
country or municipal authority or failure to deliver gas, oil or other suitable
fuel supply or inability by exercise of reasonable diligence to obtain gas, oil
or other suitable fuel. It is expressly understood and agreed that any covenants
on Landlord's part to furnish any service pursuant to any of the terms,
covenants, conditions, provisions or agreements of this Lease, or to perform any
act or thing for the benefit of Tenant, shall not be deemed breached if Landlord
is unable to furnish or perform the same by virtue of a strike or labor trouble
or any other cause whatsoever.
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16. Alterations
16.1 Other than Tenant's Work, Tenant shall make no alterations,
additions or improvements in or to the Demised Premises, Building or Project
without Landlord's prior written consent, which approval shall not be
unreasonably withheld (provided, however that in the event any proposed
alteration, addition or improvement affects (i) any structural portions of the
Building including exterior walls, roof, foundation and core of the Building,
(ii) the exterior of the Building or (iii) any Building systems, including
elevator, plumbing, air conditioning, heating electrical, security, life safety
and power, then Landlord may withhold its consent with respect thereto in its
sole and absolute discretion), and then only by architects, contractors,
suppliers or mechanics approved by Landlord in Landlord's reasonable discretion.
In seeking Landlord's approval, Tenant shall provide Landlord, at least fourteen
(14) days in advance of any proposed construction, with plans, specifications,
bid proposals, work contracts and such other information concerning the nature
and cost of the alterations as may be reasonably requested by Landlord.
16.2 Tenant agrees that there shall be no construction of partitions
or other obstructions which might interfere with free access to mechanical
installation or service facilities of the Building or interfere with the moving
of Landlord's equipment to or from the enclosures containing said installations
or facilities.
16.3 Tenant agrees that any work by Tenant shall be accomplished in
such a manner as to permit any fire sprinkler system and fire water supply lines
to remain fully operable at all times.
16.4 All alterations by Tenant shall be done at such times and in such
manner as Landlord may from time to time reasonably designate. Tenant covenants
and agrees that all work done by Tenant shall be performed in full compliance
with all laws, rules, orders, ordinances, directions, regulations, and
requirements of all governmental agencies, offices, departments, bureaus and
boards having jurisdiction, and in full compliance with the rules, orders,
directions, regulations, and requirements of any applicable fire rating bureau.
Tenant shall provide Landlord with "as-built" plans showing any change in the
Demised Premises.
16.5 Before commencing any work, Tenant shall give Landlord at least
fourteen (14) days prior written notice of the proposed commencement of such
work.
16.6 All alterations, attached equipment, decorations, fixtures, trade
fixtures, additions and improvements, subject to Section 16.8, attached to or
built into the Demised Premise, made by either Landlord or Tenant, including
(without limiting the generality of the foregoing) all floor and wallcovering,
built-in cabinet work and paneling, sinks and related plumbing fixtures,
exterior venting fume hoods and walk-in freezers and refrigerators, clean rooms,
climatized rooms, ductwork, conduits, electrical panels and circuits, shall
become the property of Landlord upon the expiration or earlier termination of
the term of this Lease, and shall remain upon and be surrendered with the
Demised Premises as a part thereof; provided, however, that Landlord may at any
time elect to cause Tenant to remove any such items from the Demised Premises
upon the expiration or earlier termination of this Lease and, if
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Landlord so elect, Tenant shall remove such remove such alterations attached
equipment, decorations, fixtures, trade fixtures, additions and improvements
upon the expiration or earlier termination of this Lease and restore any damage
caused by or occasioned as a result of such removal.
16.7 Tenant shall repair any damage to the Demised Premises caused by
Tenant's removal of any property from the Demised Premises. During any such
restoration period, Tenant shall pay Rent to Landlord as provided herein as if
said space were otherwise occupied by Tenant.
16.8 Except as to those items listed on Exhibit "F" attached hereto
and incorporated herein, all business and trade fixtures, machinery and
equipment, built-in furniture and cabinets, together with all additions and
accessories thereto, installed in and upon the Demised Premises shall be and
remain the property of Landlord and shall not be moved by Tenant at any time
during the Term. If Tenant shall fail to remove all of its effects from the
Demised Premises prior to termination of this Lease, then Landlord may, at its
option, remove the same in any manner that Landlord shall choose, and store said
effects without liability to Tenant for loss thereof or damage thereto, and
Tenant agrees to pay Landlord upon demand any expenses incurred to such removal
and storage or Landlord may, at its option, without notice, sell said property
or any of the same, at private sale and without legal process, for such price as
Landlord may obtain and apply the proceeds of such sale against any amounts due
under this Lease from Tenant to Landlord and against any expenses incident to
the removal, storage and sale of said personal property.
16.9 Notwithstanding any other provision of this Article 16 to the
contrary, in no event may Tenant remove any improvement from the Demised
Premises as to which Landlord contributed payment, including, without
limitation, the Tenant Improvements made pursuant to the Work Letter without
Landlord's prior written consent, which may be withheld in Landlord's sole
discretion.
16.10 Tenant shall pay to Landlord an amount equal to five percent
(5%) of the cost to Tenant of all charges incurred by Tenant, its contractors or
agents in connection with any alterations, additions or improvements to the
Demised Premises to cover Landlord's overhead and expenses for plan review,
coordination, scheduling and supervision thereof. for purposes of payment of
such sum, Tenant shall submit to Landlord copies of all bills, invoices, and
statements covering the costs of such charges, which will be accompanied by
payment to Landlord of the percentage fee set forth above. Tenant shall
reimburse Landlord for any extra expense incurred by Landlord by reason of
faulty work done by Tenant or its contractors, or by reason of delays caused by
such work, or by reason of inadequate cleanup.
17. Repairs and Maintenance
17.1 Landlord shall repair and maintain the structural and exterior
portions and Common Areas, including, without limitations, roofing and covering
materials, foundations, exterior walls, the plumbing, fire sprinkler system (if
any), heating, ventilating, air conditioning, elevator, and electrical systems
installed or furnished by Landlord (and the full
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cost thereof shall be included as a part of Operating Expenses), unless such
maintenance or repairs are required in whole or in part because of any act,
neglect, fault of or omissions of any duty by Tenant, its agents, servants,
employees or invitees, in which case Tenant shall pay to Landlord the cost of
such maintenance and repairs to the extent Landlord has not been reimbursed for
the cost of such maintenance and repairs from insurance proceeds.
Landlord will not replace Capital Items, if any, required by
Section 17.1, during the first seven (7) years of the Term of this Lease, unless
such Capital Item is recommended in a report prepared by an engineer, acceptable
to both Landlord and Tenant and duly licensed by the State of California, a copy
of which will be provided to the Tenant for their review and approval.
Landlord will not be required to replace Capital Items, if
any, required by Section 17.1 during the first seven (7) years of the Term of
this Lease, requested in writing by Tenant, unless such Capital Item is
recommended in a report prepared by an engineer, acceptable to both Landlord and
Tenant and duly licensed by the State of California, a copy of which will be
provided to the Landlord for their review and approval.
Landlord and Tenant agree that Landlord will not be required
to purchase and install any Capital Items, if any, required by Section 17.1
during the final three (3) years of the Term of this Lease, unless such purchase
and installation is mutually agreed to by both Landlord and Tenant in writing
and recommended in a report prepared by an engineer, acceptable to both Landlord
and Tenant and duly licensed by the State of California, a copy of which will be
provided to both Landlord and Tenant for their review and approval.
17.2 Except for services of Landlord, if any, required by Section
17.1, Tenant shall at Tenant's sole cost and expense keep the Demised Premises
and every part thereof in good condition and repair, damage thereto from
ordinary wear and tear and events of casualty which terminates the Lease
excepted. Tenant shall, upon the expiration or earlier termination of the Term,
surrender the Demised Premises to Landlord in as good as condition as when
received, ordinary wear and tear and events of casualty which terminates the
Lease excepted. Other than as specifically set forth in the Work Letter,
Landlord shall have no obligation to alter, remodel, improve, repair, decorate
or paint the Demised Premises or any part thereof.
17.3 Landlord shall not be liable for any failure to make any repairs
or to perform any maintenance which is an obligation of Landlord unless such
failure shall persist for an unreasonable time after written notice of the need
of such repairs or maintenance is given to Landlord by Tenant. Tenant waives the
rights under Section 1941 and 1942 of the California Civil Code or under any
similar law, statute or ordinance now or hereafter in effect to make repairs at
Landlord's expense.
17.4 This Article 17 relates to repairs and maintenance arising in the
ordinary course of operation of the Building, the Project and any related
facilities. In the event of fire, earthquake, flood, vandalism, war, or similar
cause of damage or destruction, this Article 17 shall not be applicable and the
provisions of Article 21 entitled "Damage or Destruction" shall apply and
control.
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18. Liens
18.1 Tenant shall keep the Demised Premises, the Building, the Project
and the real property upon which the Building and the Project are situated free
from any liens arising out of work performed, materials furnished or obligations
incurred by Tenant. Tenant further covenants and agrees that any mechanic's lien
filed against the Demised Premises or against the Building or the Project for
work claimed to have been done for, or materials claimed to have been furnished
to Tenant, will be discharged by Tenant, by bond or otherwise, within ten (10)
days after the filing thereof, at the sole cost and expense of Tenant.
18.2 Should Tenant fail to discharge any lien of the nature described
in Section 18.1 within ten (10) days after the filing therefor, Landlord may at
Landlord's election pay such claim or post a bond or otherwise provide security
to eliminate the lien as a claim against title and the cost thereof shall be
immediately due from Tenant as Additional Rent.
18.3 In the event Tenant shall lease or finance the acquisition of
office equipment, furnishings, or other personal property of a removable nature
utilized by Tenant in the operation of Tenant's business, Tenant warrants that
any Uniform Commercial Code Financing Statement executed by Tenant will upon its
face or by exhibit thereto indicate that such Financing Statement is applicable
only to removable personal property of Tenant located within the Demised
Premises. In no event shall the address of the Building be furnished on the
statement without qualifying language as to applicability of the lien only to
removable personal property. Should any holder of a Financing Statement executed
by Tenant record or place of record a Financing Statement which appears to
constitute a lien against any interest of Landlord or against equipment which
may be located other than within the Demised Premises, Tenant shall within ten
(10) days after filing such Financing Statement cause (i) a copy of the Security
Agreement or other documents to which Financing Statement pertains to be
furnished to Landlord to facilitate Landlord's being in a position to show such
lien is not applicable to Landlord's interest, and (ii) cause Tenant's lender to
amend any documents of record so as to clarify that such lien is not applicable
to any interest of Landlord in the Building of the Project.
19. Indemnification and Exculpation
19.1 Tenant agrees to indemnify, defend, hold and save Landlord
harmless from and against any and all demands, claims, liabilities, losses,
costs, expenses, actions, causes of action, damages or judgments, and all
reasonable expenses incurred in investigating or resisting the same (including,
without limitation, reasonable attorneys' fees, charges and disbursements), for
injury or death to person or injury to property occurring within or about the
Demised Premises, arising directly or indirectly out of Tenant's, its employees,
agents or guests use or occupancy of the Demised Premises or a breach or default
by Tenant in the performance of any of its obligations hereunder except to the
extent due to the willful act or gross negligence of the Landlord or its agents,
contractors or employees.
19.2 Landlord shall not be liable to Tenant and Tenant assumes all
risk of damage to personal property or scientific research, including loss of
records kept within the
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Demised Premises if the cause of such damage is of a nature which, if Tenant had
elected to maintain fire and theft insurance with extended coverage and business
records endorsement available on a commercially reasonable basis, would be a
loss subject to settlement by the insurance carrier, including, but not limited
to, damage or losses caused by fire, electrical malfunctions, gas explosion, and
water damage of any type, including but not limited to, broken water lines,
malfunction of fire sprinkler system, roof leakage or stoppages of lines unless
and except if such loss is due to willful disregard of Landlord after written
notice by Tenant of need of a repair which Landlord is responsible to make for
an unreasonable period of time. Tenant further waives any claim for injury to
Tenant's business or loss of income relating to any such damage or destruction
of personal property including any loss of records.
19.3 Landlord shall not be liable for any damages arising from any
act, omission or neglect of any other third party.
19.4 Security devices and services, if any, while intended to deter
crime may not in given instances prevent theft or other criminal acts and it is
agree that Landlord shall not be liable for injuries or losses caused by
criminal acts of third parties and the risk that any security device or service
may malfunction or otherwise be circumvented by a criminal is assumed by Tenant.
Tenant shall at Tenant's cost obtain insurance coverage to the extent Tenant
desires protection against such criminal acts.
20. Insurance - Waiver of Subrogation
20.1 Landlord, as part of Operating Expenses, shall carry insurance
upon the Building, in an amount equal to full replacement cost (exclusive of the
costs of excavation, foundations, and footings, and without reference to
depreciation taken by Landlord upon its books or tax returns) or such lesser
coverage as Landlord may elect provided such coverage is not less than ninety
percent (90%) of such full replacement cost or the amount of such insurance
Landlord's mortgage lender requires Landlord to maintain, providing protection
against any peril generally included within the classification "Fire and
Extended Coverage" together with insurance against sprinkler damage (if
applicable), vandalism and malicious mischief. Landlord, subject to availability
thereof and, as part of Operating Expenses, shall further insure as Landlord
deems appropriate coverage against flood, environmental hazard and earthquake,
loss or failure of building equipment, rental loss during the period of repair
or rebuild, workmen's compensation insurance and fidelity bonds for employees
employed to perform services. Notwithstanding the foregoing, Landlord may, but
shall not be deemed required to, provide insurance as to any improvements
installed by tenant or which are in addition to the standard improvements
customarily furnished by Landlord without regard to whether or not such are made
a part of the Building.
20.2 Landlord, as part of Operating Expenses, shall further carry
public liability insurance with a single loss limit of not less than One Million
Dollars ($1,000,000.00) for death or bodily injury, or property damage with
respect to the Project.
20.3 Tenant at its own cost shall procure and continue in effect from
the Term Commencement Date or the date of occupancy, whichever first occurs, and
continuing
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throughout the Term (and occupancy by Tenant, if any, after expiration or
earlier termination of this Lease) comprehensive public liability insurance with
limits of not less than Three Million Dollars ($3,000,000.00) per occurrence for
death or bodily injury and not less than Three Million Dollars ($3,000,000.00)
for property damage with respect to the Demised Property.
20.4 The aforesaid insurance required of Tenant shall name Landlord as
an additional insured. Said insurance shall be with companies having a rating of
not less than policyholder rating of A and financial category rating of at least
Class XII in "Best's Insurance Guide." Tenant shall obtain for Landlord from the
insurance companies or cause the insurance companies to furnish certificates of
coverage to Landlord. No such policy shall be cancelable or subject to reduction
of coverage or other modification or cancellation except after thirty (30) days
prior written notice to Landlord from the insurer. All such policies shall be
written as primary policies, not contributing with and not in excess of the
coverage which Landlord may carry. Tenant's policy may be a "blanket policy"
which specifically provides that the amount of insurance shall not be prejudiced
by other losses covered by the policy. Tenant shall, at least twenty (20) days
prior to the expiration of such policies, furnish Landlord with renewals or
binders. Tenant agrees that if Tenant does not take out and maintain such
insurance, Landlord may (but shall not be required to) procure said insurance on
Tenant's behalf and at its cost to be paid as Additional Rent.
20.5 Tenant assumes the risk of damage to any fixtures, goods,
inventory, merchandise, equipment, and leasehold improvements, and Landlord
shall not be liable for injury to Tenant's business or any loss of income
therefrom relative to such damage all as more particularly heretofore set forth
within this Lease. Tenant at Tenant's cost shall carry such insurance as Tenant
desires for Tenant's protection with respect to personal property of Tenant or
business interruption.
20.6 In each instance where insurance is to name Landlord as an
additional insured, Tenant shall upon written request of Landlord also designate
and furnish certificates so evidencing Landlord as an additional insured to (i)
any lender of Landlord holding a security interest in the Building or real
property upon which the Building is situated, and /or (ii) the Landlord under
any lease wherein Landlord is tenant of the real property whereupon the Building
is located if the interest of Landlord is or shall become that of a tenant under
a ground lease rather than that of a fee owner, and/or (iii) any management
company retained by Landlord to manage the Building or Project as long as the
names and addresses of such entities set forth in (i), (ii) and (iii) have been
provided by Landlord to Tenant.
20.7 Landlord and Tenant each hereby waive any and all rights of
recovery against the other or against the officers, directors, employees,
agents, and representatives of the other, on account of loss or damage
occasioned to such waiving party or its property or the property of others under
its control to the extent that such loss or damage is insured against under any
fire and extended coverage insurance policy which either may have in force at
the time of such loss or damage. Such waivers shall continue as long as their
respective insurers so permit. Any termination of such a waiver shall be by
written notice of circumstances as hereinafter set forth. Landlord and Tenant
upon obtaining the policies of
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insurance required or permitted under this Lease shall give notice to the
insurance carrier or carriers that the foregoing mutual waiver of subrogation is
contained in this Lease. If such policies shall not be obtainable with such
waiver or shall be so obtainable only at a premium over that chargeable without
such waiver, the party seeking such policy shall notify the other thereof, and
the latter shall have ten (10) days thereafter to either (i) procure such
insurance with companies reasonably satisfactory to the other party or (ii)
agree to pay such additional premium. If neither (i) nor (ii) are done, the
other party is relieved of the obligation to obtain a waiver of subrogation with
respect to the particular insurance involved. If such policies shall at any time
be unobtainable, but shall be subsequently obtainable, neither party shall be
subsequently liable for a failure to obtain such insurance until a reasonable
time after notification thereof by the other party.
20.8 Landlord may require insurance policy limits to be raised to
conform with requirements of Landlord's lender and/or to bring coverage limits
to levels then being required of comparable tenants in comparable buildings.
21. Damage or Destruction
21.1 In the event of a partial destruction of the Building by fire or
other perils covered by extended coverage insurance which can be repaired,
reconstructed or restored within a period of six (6) months from the date of the
happening of such casualty, Landlord shall commence and proceed diligently with
the work of repair, reconstruction and restoration and this Lease shall continue
in full force and effect.
21.2 In the event of any damage to or destruction of the Building,
other than as provided in Section 21.1, either Landlord or Tenant may, at its
option, upon written notice to the other party given within sixty (60) days
after the occurrence of such damage or destruction elect to terminate this Lease
as of the date of occurrence of the damage or destruction. In the event neither
Landlord nor Tenant shall elect to terminate this Lease, Landlord shall repair,
reconstruct and restore the Building, in which case this lease shall continue in
full force and effect.
21.3 Within thirty (30) days of the date of occurrence of the damage
or destruction, Landlord shall give written notice to Tenant of its
determination of whether the damage or destruction can be completed within six
(6) months from the date of the damage or destruction.
21.4 Upon any termination of this Lease under any of the provisions of
this Article, the parties shall be released thereby without further obligation
of the other from the date possession of the Demised Premises is surrendered to
the Landlord except for items which have theretofore occurred.
21.5 In the event of repair, reconstruction and restoration as herein
provided, the rental provided to be paid under this Lease shall be abated
proportionately based on the extent to which Tenant's use of the Demised
Premises is impaired during the period of such repair, reconstruction or
restoration.
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21.6 Notwithstanding anything to the contrary contained in this
Article, should Landlord be delayed or prevented from completing the repair or
restoration of the damage to the Demised Premises after the occurrence of such
damage or destruction by reason of acts of God or war, governmental
restrictions, inability to procure the necessary labor or materials, strikes, or
other uses beyond the control of the Landlord, the time for Landlord to commence
or complete repairs shall be extended, provided, at the election of Landlord,
Landlord shall be relieved of its obligation to make such repairs or restoration
and Tenant shall be released from its obligation under this Lease as of the end
of eight (8) months from date of destruction, if repairs required to provide
Tenant use of the Demised Premises are not then substantially complete.
21.7 If Landlord is obligated to or elects to repair or restore as
herein provided, Landlord shall be obligated to make repairs or restoration only
of those portions of the Building and the Demised Premises which were originally
provided at Landlord's expense; the repair and restoration of items not provided
at Landlord's expense shall be the obligation of Tenant. In the event Tenant
elected to upgrade certain improvements from the standard normally provided by
Landlord, Landlord shall upon the need for replacement due to an insured loss,
provide only the standard Landlord improvements unless Tenant shall elect to
again upgrade and pay any additional cost of such upgrades, except to such
extent as insurance proceeds which, if received, the excess proceeds are
adequate to provide such upgrades, in addition to providing for basic
reconstruction and standard improvement.
21.8 Notwithstanding anything to the contrary contained in this
Article, Landlord shall not have any obligation whatsoever to repair,
reconstruct or restore the Demised Premises when the damage resulting from any
casualty covered under this Article occurs during the last twenty-four (24)
months of the term of this Lease or any extension hereof, or to the extent that
insurance proceeds are not available therefor. If Landlord makes such election,
Tenant shall have the right to terminate this Lease as of the date of the
occurrence of the damage or destruction upon written notice to Landlord within
sixty (60) days after the occurrence of the damage or destruction.
22. Eminent Domain
22.1 In the event the whole of the Demised Premises, or such part
thereof as shall substantially interfere with the Tenant's use and occupancy
thereof, shall be taken for any public or quasi-public purpose by any lawful
power or authority by exercise of the right of appropriation, condemnation or
eminent domain, or sold to prevent such taking, Tenant or Landlord may terminate
this Lease effective as of the date possession is required to be surrendered to
said authority.
22.2 In the event of a partial taking of the Building, the Project or
of drives, walkways, and parking areas serving the Building or the Project for
any public or quasi-public purpose by any lawful power or authority by exercise
of right of appropriation, condemnation, or eminent domain, or sold to prevent
such taking, then without regard as to whether any portion of the Demised
Premises occupied by Tenant was so taken, Landlord may elect to terminate this
Lease as of such taking if such taking is, in the sole opinion of the Landlord,
of
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a material nature such as to make it uneconomical to continue use of the
unappropriated portion for purposes of office rentals or laboratory space.
22.3 Tenant shall be entitled to any award which is specifically
awarded as compensation for the taking of Tenant's personal property, which was
installed at Tenant's expense and for costs of Tenant moving to a new location.
Except as before set forth, any award for such taking shall belong to Landlord.
22.4 If upon any taking of the nature described in this Article 22
this Lease continues in effect, the Landlord shall promptly proceed to restore
the Demised Premises, Building, and the Project to substantially their same
condition prior to such partial taking. To the extent such restoration is
feasible, as determined by Landlord in its reasonable discretion, the Rent shall
be abated proportionately based upon the extent to which Tenant use of the
Demised Premises has decreased on the basis of the percentage of the rental
value of the Demised Premises after such taking and the rental value of the
Demised Premises prior to such taking.
23. Defaults and Remedies
23.1 Late Payment by Tenant to Landlord of Rent and other sums due
will cause Landlord to incur costs not contemplated by this Lease, the exact
amount of which will be extremely difficult and impracticable to ascertain. Such
costs include, but are not limited to, processing and accounting charges and
late charges which may be imposed on Landlord by the terms of any mortgage or
trust deed covering the Demised Premises. Therefore, if any installment of Rent
due from Tenant is not received by Landlord within five (5) days after the date
such payment is due, Tenant shall pay to Landlord an additional sum of six
percent (6%) of the overdue Rent as a late charge. The parties agree that this
late charge represents a fair and reasonable estimate of the costs that Landlord
will incur by reason of late payment by Tenant. In addition to the late charge,
Rent not paid when due shall bear interest from the 5th day after date due until
paid at the lesser of (i) twelve percent (12%) per annum or (ii) the maximum
rate permitted by law.
23.2 No payment by Tenant or receipt by Landlord of a lesser amount
than the Rent payment herein stipulated shall be deemed to be other than on
account of the Rent, nor shall any endorsement or statement on any check or any
letter accompanying any check or payment as Rent be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of such Rent or pursue any other remedy
provided. If at any time a dispute shall arise as to any amount or sum of money
to be paid by Tenant to Landlord, Tenant shall have the right to make payment
"under protest" and such payment shall not be regarded as a voluntary payment,
and there shall survive the right on the part of Tenant to institute suit for
recovery of the payment paid under protest.
23.3 If Tenant fails to pay any sum of money (other than Basic Annual
Rent) required to be paid by it hereunder, or shall fail to perform any other
act on its part to be performed hereunder and the applicable cure periods
provided for under Section 23.4 hereof
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have expired, Landlord may, without waiving or releasing Tenant from any
obligations of Tenant, but shall not be obligated to, make such payment or
perform such act. All sums so paid or incurred by Landlord, together with
interest thereon, from the date such sums were due until Landlord receives the
payment, at the annual rate equal to twelve percent (12%) per annum or highest
rate permitted by law, whichever is less, shall be payable to Landlord on demand
as Additional Rent.
23.4 The occurrence of any one or more of the following events shall
constitute a "Default" hereunder by Tenant:
23.4.1 The abandonment or vacation of the Demised Premises
by Tenant;
23.4.2 The failure by Tenant to make any payment of Rent, as
and when due, and said failure is either the first or second such failure within
any calendar year, and such failure shall continue for a period of ten (10) days
after written notice thereof from Landlord to Tenant. Such notice shall be in
lieu of, and not in addition to, any notice required under California Code or
Civil Procedure Section 1161. On the third failure by Tenant to make any payment
of Rent, as and when due, during any calendar year, no notice from Landlord will
be required.
23.4.3 The failure by Tenant to observe or perform any
obligation or covenant contained herein (other than described in Section 23.4.1
and 23.4.2) to be performed by Tenant, where such failure shall continue for a
period of ten (10) days after written notice thereof from Landlord to Tenant.
Such notice shall be in lieu of, and not in addition to, any notice required
under California Code or Civil Procedure Section 1161; provided that if the
nature of Tenant's default is such that it reasonably requires more than ten
(10) days to cure, then Tenant shall not be deemed to be in default if Tenant
shall commence such cure within said ten (10) day period and thereafter
diligently prosecute the same to completion provided, however, that such cure is
completed no later than thirty (30) days from the date of written notice;
23.4.4 Tenant makes an assignment for the benefit of
creditors;
23.4.5 A receiver, trustee or custodian is appointed to, or
does, take title, possession or control of all, or substantially all, of
Tenant's assets;
23.4.6 Tenant files a voluntary petition under the
Bankruptcy Code (or any similar law) or an order for relief is entered against
Tenant pursuant to a voluntary or involuntary proceeding commenced under any
chapter of the Bankruptcy Code;
23.4.7 Any involuntary petition if filed against the Tenant
under any chapter of the Bankruptcy Code and is not dismissed within ninety (90)
days; or
23.4.8 Tenant's interest in this Lease is attached, executed
upon, or otherwise judicially seized and such action is not released within
ninety (90) days of the action.
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Notices given under this Section shall specify the alleged default and shall
demand that Tenant perform the provisions of this Lease or pay the Rent that is
in arrears, as the case may be, within the applicable period of time, or quit
the Demised Premises. No such notice shall be deemed a forfeiture or a
termination of this Lease unless Landlord elects otherwise in such notice.
23.5 In the event of a Default by Tenant, and at any time thereafter,
with or without notice or demand and without limiting Landlord in the exercise
of any right or remedy which Landlord may have, Landlord shall be entitled to
terminate Tenant's right to possession of the Demised Premises by any lawful
means, in which case this Lease shall terminate and Tenant shall immediately
surrender possession of the Demised Premises to Landlord. In such event,
Landlord shall have the immediate right to re-enter and remove all persons and
property, and such property may be removed and stored in a public warehouse or
elsewhere at the cost of, and for the account of Tenant, all without service
notice or resort to legal process and without being deemed guilty of trespass,
or becoming liable for any loss or damage which may be occasioned thereby. In
the event that Landlord shall elect to so terminate this Lease, then Landlord
shall be entitled to recover from Tenant all damages incurred by Landlord by
reason of Tenant's Default, including:
23.5.1 The worth at the time of award of any unpaid Rent
which had been earned at the time of such termination; plus
23.5.2 The worth at the time of award of the amount by which
the unpaid Rent which would have been earned after termination until the time of
award exceeds that portion of such rental loss which Tenant proves could have
been reasonably avoid; plus
23.5.3 The worth at the time of award of the amount by which
the unpaid Rent for the balance of the term after the time of award exceeds the
amount of such rental loss which Tenant proves could have been reasonably
avoided; plus
23.5.4 Any other amount necessary to compensate Landlord for
all the detriment proximately caused by tenant's failure to perform its
obligation under this Lease or which in the ordinary course of things would be
likely to result therefrom, including, but not limited to, the cost of restoring
the Demised Premises to the condition required under the terms of this Lease;
plus
23.5.5 At the Landlord's election, such other amounts in
addition to or in lieu of the foregoing as may be permitted from time to time by
applicable law.
As used in Subsections 23.5.1 and 23.5.2 above, "worth at the time of award"
shall be computed by allowing interest at the rate specified in Section 23.1. As
used in Subsection 23.5.3 above, the "worth at the time of the award" shall be
computed by taking the present value of such amount, by using the discount rate
at the Federal Reserve Bank of San Francisco at the time of the award plus six
(6) percentage points.
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23.6 If Landlord does not elect to terminate this Lease as provided in
this section, then Landlord may, from time to time, recover all Rent as it
becomes due under this Lease. At any time thereafter, Landlord may elect to
terminate this Lease and to recover damage to which Landlord is entitled.
23.7 In the event Landlord elects to terminate this Lease and relet
the Demised Premises, it may execute any new lease in its own name. Tenant
hereunder shall have no right or authority whatsoever to collect any Rent from
such tenant. The proceeds of any such reletting shall be applied as follows:
First, to the payment of any indebtedness other than Rent
due hereunder from Tenant to Landlord, including, but not limited to, storage
charges or brokerage commissions owing from Tenant to Landlord as the result of
such reletting;
Second, to the payment of the costs and expenses of
reletting the Demised Premises, including alterations and repairs which Landlord
deems reasonably necessary and advisable and reasonable attorneys' fees, charges
and disbursements incurred by Landlord in connection with the retaking of the
Demised Premises and such reletting;
Third, to the payment of Rent and other charges due and
unpaid hereunder; and
Fourth, to the payment of future Rent and other damages
payable by Tenant under this Lease.
23.8 All rights, options, and remedies of Landlord contained in this
Lease shall be construed and held to be nonexclusive and cumulative. Landlord
shall have the right to pursue any one or all of such remedies or any other
remedy or relief which may be provided by law, whether or not stated in this
Lease. No waiver of any default of Tenant hereunder shall be implied from any
acceptance by Landlord of any Rent or other payments due hereunder or an
omission by Landlord to take any action on account of such default if such
default persists or is repeated, and no express waiver shall affect defaults
other than as specified in said waiver.
23.9 Termination of this Lease or Tenant's right to possession by
Landlord shall not relieve Tenant from any liability to Landlord which has
therefore accrued or shall arise based upon events which occurred prior to the
last to occur of (i) the date Lease termination or (ii) the date possession of
Demised Premises is surrendered.
23.10 Landlord shall not be in default unless Landlord fails to
perform obligations required of Landlord within a reasonable time, but in no
event shall such failure to continue be for more than thirty (30) days after
written notice by Tenant specifying wherein Landlord has failed to perform such
obligation; provided, however, that if the nature of Landlord's obligation is
such that more than thirty (30) days are required for performance, then Landlord
shall not be in default if Landlord commences performance within such thirty
(30) day period and thereafter diligently prosecutes the same to completion.
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23.11 In the event of any default on the part of Landlord, Tenant will
give notice by registered or certified mail to any beneficiary of a deed of
trust or mortgagee of a mortgage covering the Demised Premises and to any
landlord of any lease of any building in which the Demised Premises are located
whose address shall have been furnished, and Tenant shall offer such
beneficiary, mortgagee and/or landlord a reasonable opportunity to cure the
default, including time to obtain possession of the Building by power of sale or
a judicial action if such should prove necessary to effect a cure, provided the
Landlord shall have furnished to Tenant in writing the names and addresses of
all such persons who are to receive such notices.
24. Assignment or Subletting
24.1 Except as hereinafter provided, Tenant shall not, either
voluntarily or by operation of law, directly or indirectly, sell, hypothecate,
assign, pledge, encumber or otherwise transfer this Lease, or sublet the Demised
Premises or any part thereof, or permit or suffer the Demised Premises or any
part thereof to be used or occupied as work space, storage space, mailing
privileges, concession or otherwise by anyone other than Tenant or Tenant's
employees, without the prior written consent of Landlord in each instance, which
consent shall not unreasonably withheld.
24.2 If Tenant is a corporation, the shares of which are not actively
traded upon a stock exchange or in the over-the-counter market, a transfer or
series of transfers whereby fifty percent (50%) or more of the issued and
outstanding shares of such corporation are, or the voting control is,
transferred (but excepting transfers upon deaths of individual shareholders)
from a person or persons or entity or entities which were owners thereof at time
of execution of this Lease to persons or entities who were not owners of shares
of the corporation at time of execution of this Lease shall be deemed an
assignment of this Lease requiring the consent of Landlord as provided in
Section 24.1 above.
24.3 If Tenant desires to assign this Lease to an affiliate of Tenant,
provided that the assignee first executes, acknowledge and delivers to Landlord
an agreement whereby the assignee agrees to be bound by all of the covenants and
agreements in this Lease and that the assignee shall have a net worth
(determined in accordance with generally accepted accounting principles
consistently applied) immediately after such assignment which is at least equal
to the net worth (as so determined) of Tenant immediately prior to the
assignment (or as of the date hereof, if greater), then Landlord, upon receipt
of proof of foregoing, shall acknowledge such assignment, and such assignment
will not be subject to Landlord's consent.
24.4 If Tenant desires to assign this Lease to any entity into which
Tenant is merged, with which Tenant is consolidated, or which acquires all or
substantiality all of the assets of Tenant, provided that the assignee first
executes, acknowledge and delivers to Landlord an agreement whereby the assignee
agrees to be bound by all of the covenants and agreements in this Lease and that
the assignee shall have a net worth (determined in accordance with generally
accepted accounting principles consistently applied) immediately after such
assignment which is at least equal to the net worth (as so determined) of Tenant
immediately prior to the assignment (or as of the date hereof, if greater), then
Landlord, upon
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receipt of proof of foregoing, agrees not to unreasonably withhold consent from
such assignment.
24.5 In the event Tenant desires to assign, sublease, hypothecate or
otherwise transfer this Lease or sublet the Demised Premises, then at least
forty-five (45) days, but not more than ninety (90) days, prior to the date when
Tenant desires the assignment or sublease to be effective (the "Assignment
Date"), Tenant shall give Landlord a notice (the "Assignment Notice") containing
information (including references) concerning the character of the proposed
assignee or sublessee, the Assignment Date, any ownership or commercial
relationship between Tenant and the proposed assignee or sublessee, and the
consideration and all other material terms and conditions of the proposed
assignment or sublease along with such other information as Landlord may
reasonably require, all in such detail as Landlord shall reasonably require.
Tenant shall also tender to Landlord reasonable attorneys fees and other costs
or overhead expenses incurred by Landlord in reviewing Tenants request for such
assignment.
24.6 Landlord in making its determination as to whether consent should
be given to a proposed assignment or sublease, may give consideration to the
financial strength of such successor to undertake the obligation of the transfer
(notwithstanding the assignor remaining liable for Tenant's performance), any
change in use which such successor proposes to make in use of Demised Premises
and desire of Landlord to exercise rights under Section 24.11 to obtain
cancellation of this Lease. In no event shall Landlord be deemed to be
unreasonable for declining to consent to transfer to a successor of poor
reputation, lacking financial qualifications to undertake the obligations of the
transfer, or seeking change in use.
24.7 As conditions precedent to Landlord considering a request by
Tenant to Tenant's transfer of rights or sharing of the Demised Premises,
Landlord may require any or all of the following:
24.7.1 Tenant shall remain fully liable under this Lease
during the unexpired Term;
24.7.2 Tenant shall provide Landlord with evidence
reasonably satisfactory to Landlord that the value of Landlord's interest under
this Lease will not thereby be diminished or reduced. Such evidence shall
include, but need not be limited to, evidence respecting the relevant business
experience and financial responsibility to undertake the obligations of the
transfer and status of the third party concerned;
24.7.3 Tenant shall pay Landlord's actual costs and
expenses, including, without limitation, reasonable attorneys' fees, charges and
disbursements incurred in connection with the review, processing and
documentation of such request;
24.7.4 If Tenant's transfer of rights or sharing of the
Demised Premises provides for the receipt by, on behalf or on account of Tenant
of any consideration of any kind whatsoever (including, but not by way of
limitation, a premium rental for a sublease or lump sum payment for an
assignment) in excess of the rental and other charges due Landlord
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under this Lease, Tenant shall pay Fifty percent (50%) of the Profits (as
hereinafter defined) to Landlord. If said consideration consists of cash paid to
Tenant, said payment to Landlord shall be made upon receipt by Tenant of said
cash payment. With respect to any assignment or sublease, the definition of
Profits shall be the sum of the gross revenue received from the sublessee or
assignee during the period of the sublease term or during the assignment with
respect to the space covered by the sublease or the assignment less the Rent
paid to Landlord by Tenant during the period of the sublease term or during the
assignment with respect to the space covered by the sublease or the assignment;
24.7.5 Written agreement from any third party concerned that
in the event Landlord gives such third party notice that Tenant is in default
under this Lease, such third party shall hereafter make all payments otherwise
due Tenant directly to Landlord, which payments will be received by Landlord
without any liability on Landlord except to credit such payment against those
due under the Lease from Tenant, and any such third party shall agree to attorn
to Landlord or its successors and assigns should this Lease be terminated for
any reason; provided, however that in no event shall Landlord or its successors
or assigns be obligated to accept such attornment;
24.7.6 Any such transfer and consent shall be effected on
forms reasonably approved by Landlord as to form and substance;
24.7.7 Tenant shall not then be in default hereunder in any
respect;
24.7.8 Such third party's proposed use of the Demised
Premises shall be the same as Tenant's permitted use;
24.7.9 Landlord shall not be bound by any provision of any
agreement pertaining to Tenant's transfer of rights or sharing of the Demised
Premises;
24.7.10 Tenant shall deliver to Landlord one executed copy
of any and all written instruments evidencing or relating to Tenant's transfer
of rights or sharing of the Demised Premises; and
24.7.11 A list of Hazardous Materials (as defined in Section
38.6 below), certified by the proposed sublessee to be true and correct, which
the proposed sublessee intends to use or store in the Demised Premises shall be
delivered to Landlord. Additionally, Tenant shall deliver to Landlord, on or
before the date any proposed sublessee takes occupancy of the Demised Premises,
all of the items relating to Hazardous Materials of such proposed sublessee as
described in Section 38.1.1 below.
24.8 Any sale, assignment, hypothecation or transfer of this Lease or
subletting of the Demised Premises that is not in compliance with the provisions
of this Article 24 shall be void and shall, at the option of Landlord, terminate
this Lease.
24.9 The consent by Landlord to an assignment or subletting shall not
relieve Tenant or any assignees of this Lease or sublessee of the Demised
Premises from obtaining
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the consent of Landlord to any further assignment or subletting nor shall it
release Tenant or any assignee or sublessee of Tenant from full and primary
liability under the Lease.
24.10 Notwithstanding any subletting or assignment, Tenant shall
remain fully and primarily liable for the payment of all Rent and other sums
due, or to become due hereunder, and for the full performance of all other
terms, conditions, and covenants to be kept and performed by Tenant. The
acceptance of Rent or any other sum due hereunder or the acceptance of
performance of any other term, covenant, or condition thereof, from any other
person or entity shall not be deemed to be a waiver of any of the provisions of
this Lease or a consent to any subletting, assignment or other transfer of the
Demised Premises.
24.11 If Tenant delivers to Landlord an Assignment Noticed indicating
a desire to transfer all of the entire Demised Premises of this Lease to a
transferee, then Landlord shall have the option, exercisable by giving notice to
Tenant at any time within ten (10) days after Landlord's receipt of the
Assignment Notice, to terminate this Lease as of the date specified in the
Assignment Notice as the Assignment Date. If Landlord exercises such option,
then Tenant shall have the right to withdraw such Assignment Notice by delivery
to Landlord written notice of such election within five (5) days after
Landlord's delivery of notice electing to exercise such option to terminate. In
the event Tenant withdraws the Assignment Noticed as hereinabove provided, this
Lease shall continue in full force and effects as if such Assignment Notice as
hereinabove provided, this Lease, and the term and estate herein granted, shall
terminate as of the Assignment Date. No failure of Landlord to exercise any such
option to terminate this Lease shall be deemed to be Landlord's consent to the
proposed Assignment, Sublease or other Transfer.
24.12 If Tenant shall sublet the Demised Premises or any part, Tenant
hereby immediately and irrevocably assigns to Landlord, as security for Tenant's
obligations under this Lease, all rent from any subletting of all or a part of
the Demised Premises and Landlord as assignee and as attorney-in-fact for
Tenant, or a receiver for Tenant appointed on Landlord's application, may
collect such rent and apply it toward Tenant's obligations under this Lease;
except that, until the occurrence of an act of Default by Tenant, Tenant shall
have the right to collect such rent.
25. Attorneys' Fees
25.1 If either party commences an action against the other party
arising out of or in connection with this Lease, the prevailing party shall be
entitled to have and recover from the non-prevailing party reasonable attorneys'
fees, charges and disbursements and costs of suit.
26. Bankruptcy
26.1 In the event a debtor, trustee, or debtor in possession under the
Bankruptcy Code, or other person with similar rights, duties and powers under
any other law, proposes to cure any default under this Lease or to assume or
assign this Lease, and is obligated to provide adequate assurance to Landlord
that (i) a default will be cured, (ii) Landlord will be
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compensated for its damages arising from any breach of this Lease, or (iii)
future performance under this Lease will occur, then adequate assurance shall
include any or all of the following, as designated by Landlord:
26.1.1 Those acts specified in the Bankruptcy Code or other
law as included within the meaning of adequate assurance, even if this Lease
does not concern a shopping center or other facility described in such laws;
26.1.2 A prompt cash payment to compensate Landlord for any
monetary defaults or actual damages arising directly from a breach of this
Lease;
26.1.3 A cash deposit in an amount at least equal to the
Security Deposit as referenced in 2.1.9 originally required at time of execution
of this Lease.
26.1.4 The assumption or assignment of all of Tenant's
interest and obligations under this Lease.
27. Estoppel Certificate
Tenant shall within ten (10) days of written notice from Landlord,
execute, acknowledge and deliver a statement in writing substantially in the
form attached to this Lease as Exhibit "D" with the blanks filled in, and on any
other form reasonably requested by a proposed lender or purchaser, (i)
certifying that this Lease is unmodified and in full force and effect (or, if
modified, stating the nature of such modification and certifying that this Lease
as so modified is in full force and effect) and the dates to which the rental
and other charges are paid in advanced, if any, (ii) acknowledging that there
are not, to Tenant's knowledge, any uncured defaults on the part of Landlord
hereunder, or specifying such defaults if any are claimed and (iii) setting
forth such further information with respect to this Lease or the Demised
Premises as may be requested thereon. Any such statement may be relied upon by
any prospective purchaser or encumbrancer of all or any portion of the real
property of which the Demised Premises are a part. Tenant's failure to deliver
such statement within such time shall, at the option of Landlord, constitute a
Default under this Lease, and, in any event, shall be conclusive upon Tenant
that the Lease is in full force and effect and without modification except as
may be represented by Landlord in any certificate prepared by Landlord and
delivered to Tenant for execution.
28. Joint and Several Obligations
28.1 If more than one person or entity executes this Lease as Tenant,
28.1.1 Each of them is jointly and severally liable for the
keeping, observing and performing of all of the terms, covenants, conditions,
provisions and agreements of this Lease to be kept, observed and performed by
Tenant, and
28.1.2 The term "Tenant" as used in this Lease shall mean
and include each of them jointly and severally. The act of, notice from, notice
to, refund to, or the
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signature of, any one or more of the, with respect to the tenancy of this Lease,
including, but not limited to, any renewal, extension, expiration, termination
or modification of this Lease, shall be binding upon each and all of the persons
executing this Lease as Tenant with the same force and effect as if each and all
of them had so acted, so given or received such notice or refund or so signed.
29. Definition of Landlord; Limitation of Landlord's Liability
29.1 The term "Landlord" as used in this Lease, so far as covenants or
obligations on the part of Landlord are concerned, shall be limited to mean and
include only Landlord or the successor-in-interest of Landlord under this Lease
at the time in question. In the event of any transfer, assignment or the
conveyance of Landlord's title or leasehold, the Landlord herein named (and in
case of any subsequent transfers or conveyances, the then grantor) shall be
automatically freed and relieved from, and after the date of such transfer,
assignment or conveyance, of all liability for the performance of any covenants
or obligations contained in this Lease thereafter to be performed by Landlord
and, without further agreement, the transferee of such title or leasehold shall
be deemed to have assumed and agreed to observe and perform any and all
obligations of Landlord hereunder, during its ownership or ground lease of the
Demised Premises. Landlord may transfer its interest in the Demised Premises or
this Lease without the consent of Tenant and such transfer or subsequent
transfer shall not be deemed a violation on the part of Landlord or the then
grantor of any of the terms or conditions of this Lease.
29.2 If Landlord is in default of this Lease, and as a consequence,
Tenant recovers a money judgment against Landlord, the judgment shall be
satisfied only out of Landlord's equity interest in the Project, insurance
proceeds received by Landlord or the proceeds of sale received on execution of
the judgment and levy against the right, title and interest of Landlord in the
Building, and out of rent or other income from such real property receivable by
Landlord or out of the consideration received by Landlord from the sale,
financing, refinancing, or other disposition of all or any part of Landlord's
right, title, and interest in the Building.
29.3 Landlord shall not be personally liable for any deficiency. If
Landlord is a partnership or joint venture, the partners of such partnership
shall not be personally liable and no partner of Landlord shall be sued or named
as a party in any suit or action or service of process be made against any
partner of Landlord except as may be necessary to secure jurisdiction o the
partnership or joint venture. If Landlord is a corporation, the shareholders,
directors, officers, employees, and/or agents of such corporation shall not be
personally liable and no shareholder, director, officer, employee or agent of
Landlord shall be sued or named as a party in any suit or action or service of
process made against any shareholder, director, officer, employee or agent of
Landlord. No partner, shareholder, director, employee, or agent of Landlord
shall be required to answer or otherwise plead to any service of process and no
judgment will be taken or writ of execution levied against any partner,
shareholder, director, employee or agent of Landlord.
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29.4 Each of the covenants and agreements of this Article 29 shall be
applicable to any covenant or agreement either expressly contained in this Lease
or imposed by statute or by common law and shall survive the termination of this
Lease.
30. Project Control by Landlord
30.1 Landlord reserves full control over the Building and the Project
to the extent not inconsistent with Tenant's enjoyment of the Demised Premises.
This reservation includes but is not limited to right of Landlord to expand the
Project, the right to grant easements and licenses to others and the right to
maintain or establish ownership of the Building separate from fee title to land
on which the Building is located as long as Tenant's use of and quiet enjoyment
of the Demised Premises shall not be adversely affected.
30.2 Tenant shall, should Landlord so request, promptly join with
Landlord in execution of such documents as may be reasonably appropriate to
assist Landlord to implement any such action provided Tenant need not execute
any document which is of nature wherein liability is created in Tenant, Tenant's
obligations under this Lease are materially changed or increased or if by reason
of the terms of such document, Tenant will be deprived of the quiet enjoyment
and use of the Demised Premises as granted by this Lease.
30.3 Landlord may, at any and all reasonable times during non-business
hours (or during business hours if Tenant so requests), and upon reasonable
advance notice (provided that no time restrictions shall apply or advance notice
need be given if an emergency necessitates an immediate entry), enter the
Demised Premises to (a) inspect the same and to determine whether Tenant is in
compliance with its obligations hereunder, (b) supply any service Landlord is
required to provide hereunder, (c) show the Demised Premises to prospective
lenders, insurers, investors, purchasers or tenants, (d) post notices of
nonresponsibility, (e) access the telephone equipment, electrical substation and
fire risers, and (f) alter, improve or repair any portion of the Building other
than the Demised Premises, but for which access to the Demised Premises is
necessary. Such entry shall be accomplished as expeditiously as reasonably
possible and in a manner so as to cause as little interference to Tenant as
reasonably possible. In connection with any such alteration, improvement or
repair, Landlord may erect in the Demised Premises or elsewhere in the Building
or the Project scaffolding and other structures reasonably required for the work
to be performed. In no event shall Tenant's Rent abate as a result of any such
entry or work; provided, however, that all such work shall be done in such a
manner as to cause as little interference to Tenant as reasonably possible.
Landlord shall at all times retain a key with which to unlock all of the doors
in the Demised Premises. If an emergency necessitates immediate access to the
Demised Premises, Landlord may use whatever forces necessary to enter the
Demised Premises and any such entry to the Demised Premises shall not constitute
a forcible or unlawful entry to the Demised Premises, a detainer of the Demised
Premises, or an eviction of Tenant from the Demised Premises, or an portion
thereof.
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31. Quiet Enjoyment
So long as Tenant is not in default, Landlord covenants that Landlord
or anyone acting through or under Landlord will not disturb Tenant's occupancy
of the Demised Premises except as permitted by the provision of this Lease.
32. Quitclaim Deed
Tenant shall execute and deliver to Landlord on the expiration or
termination of this Lease, immediately on Landlord's request, in recordable
form, a quitclaim deed to the Demised Premises or such other documentation
reasonably requested by Landlord evidencing termination of this Lease.
33. Rules and Regulations
Tenant shall faithfully observe and comply with the Rules and
Regulations attached hereto as Exhibit "C" and all reasonable and
nondiscriminatory modifications thereof and additions thereto from time to time
put into effect by Landlord. Landlord agrees that the Rules and Regulations
shall not be changed, revised or enforced in any unreasonable way by Landlord,
nor modified or added to by Landlord in such a way as to interfere with Tenant's
permitted use of the Demised Premises set forth in the Lease. Landlord shall not
enforce the Rules and Regulations in an unreasonable manner or in a manner which
shall unreasonably interfere with the normal and customary use of the Demised
Premises by Tenant for normal and customary business operations permitted under
Lease Section 2.1.10.
34. Subordination and Attornment
34.1 This Lease shall be subject and subordinate to the lien of any
first mortgage, first deed of trust, or lease in which Landlord is tenant
("Superior Lienholder") now or hereafter in force against the Project and the
Building and to all advances made or hereafter to be made upon the security
thereof without the necessity of the execution and delivery of any further
instruments on the part of Tenant to effectuate such subordination. The
enforceability of the proceeding by a Superior Lienholder shall be subject to
Tenant's receipt of a nondisturbance and attornment agreement from the Superior
Lienholder in the form customarily provided by such Superior Lienholder. Such
agreement shall be in recordable form and Tenant shall pay all reasonable fees
and expenses associated with obtaining such agreement.
34.1.1 Landlord hereby represents and warrants to Tenant
that as of the effective date of this Lease, no first mortgage, first deed of
trust, or lease in which Landlord is tenant, is in force against the Project.
34.2 Tenant shall execute and deliver upon demand such further
instrument or instruments evidencing such subordination of this lease to the
lien of any such mortgage or mortgages or deeds of trust or lease in which
Landlord is tenant as may be required by Landlord. However, if any such
mortgagee, beneficiary or Landlord under lease wherein
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Landlord is tenant so elects, this Lease shall be deemed prior in lien to any
such lease, mortgage, or deed of trust upon or including the Demised Premises
regardless of date and Tenant will execute a statement in writing to such effect
at Landlord's request. If Tenant fails to execute any document required from
Tenant under this Section within ten (10) days after written request therefor,
Tenant hereby constitutes and appoints Landlord or its special attorney-in-fact
to execute and deliver any such document or documents in the name of Tenant.
Such power is coupled with an interest and is irrevocable.
34.3. In the event any proceedings are brought for foreclosure, or in
the event of the exercise of the power of sale under any mortgage or deed of
trust made by the Landlord covering the Demised Premises, the Tenant shall at
the election of the purchaser at such foreclosure or sale attorn to the
purchaser upon any such foreclosure or sale and recognize such purchaser as the
Landlord under this Lease.
35. Surrender
35.1 No surrender of possession of any part of the Demised Premises
shall release Tenant from any of its obligations hereunder unless accepted by
Landlord.
35.2 The voluntary or other surrender of this Lease by Tenant shall
not work a merger, unless Landlord consents and shall, at the option of
Landlord, operate as an assignment to it of any or all subleases or
subtenancies.
35.3 The voluntary or other surrender of any ground or underlying
lease that now exists or may hereafter be executed affecting the Building or
Project, or a mutual cancellation, thereof, or of Landlord's interest therein,
shall not work a merger and shall, at the option of the successor of Landlord's
interest in the Building or Project, operate as an assignment of this Lease.
35.4 Upon the expiration or sooner termination of this Lease, Tenant
shall surrender the Demised Premises to Landlord broom clean and free of debris,
with all of Tenant's personal property and effects removed therefrom, with all
alterations, improvements and fixtures required by Landlord to be removed from
the Demised Premises actually removed and all damage as a result of or cause by
such removal repaired, and with all licenses, permits and similar items which
restrict or affect the use of the Demised Premises release and fully terminated.
36. Waiver and Modification
No provision of this Lease may be modified, amended or added to except
by an agreement in writing executed by both Landlord and Tenant. The waiver by
Landlord or Tenant of any breach of any term, covenant or condition herein
contained shall not be deemed to be a waiver or any subsequent breach of the
same or any other term, covenant or condition herein contained.
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37. Waiver of Jury Trial and Counterclaims
THE PARTIES HERETO SHALL AND THEY HEREBY DO WAIVE TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO
AGAINST THE OTHER ON ANY MATTERS WHATSOEVER ARISING OUT OF OR IN ANY WAY
CONNECTED WITH THIS LEASE, THE RELATIONSHIP OF LANDLORD AND TENANT, TENANT'S USE
OR OCCUPANCY OF THE DEMISED PREMISES, AND OR ANY CLAIM OF INJURY OR DAMAGE.
38. Hazardous Materials
38.1 Prohibition/Compliance Tenant shall not cause or permit any
Hazardous Material (as hereinafter defined) to be brought upon, kept or used in
or about the Demised Premises, the Building or the Project violation of
applicable law by Tenant, its agents, employees, contractors, or invitees. If
Tenant breaches the obligation stated in the preceding sentence, or if the
presence of Hazardous Materials results as a result of the activities of the
Tenant, it's contractors, invitees, guests, agents or employees results in
contamination of the Demised Premises, the Building, the Project or any adjacent
property, or if contamination of the Demised Premises, the Building, the Project
or any adjacent property by Hazardous Material otherwise occurs during the term
of this Lease or any extension or renewal hereof or holding over hereunder, then
Tenant shall indemnify, defend and hold Landlord, its officers, directors,
employees, agents and contractors harmless from any and all claims, judgments,
damages, penalties, fines, costs, liabilities, or losses (including, without
limitation, diminution in value of the Demised Premises, the Building or any
portion of the Project, damages for the loss or restriction on use of rentable
space or of any amenity of the Demised Premises, the Building or the Project,
damages arising from any adverse impact on marketing of space in the Demised
Premises, the Building or the Project, and sums paid in settlement of claims,
attorneys' fees, consultant fees and expert fees) which arise during or after
the Lease Term as a result of such contamination as a result of the activities
of the Tenant. This indemnification of Landlord by Tenant includes, without
limitation, costs incurred in connection with any investigation of site
conditions or any cleanup, remedial, removal, or restoration work required by
any federal, state or local governmental agency or political subdivision because
of Hazardous Material present in the air, soil or ground water on or under the
Demised Premises as a result of the activities of the Tenant. Without limited
the foregoing, if the presence of any Hazardous Material on the Demised
Premises, the Building, the Project or any adjacent property, caused or
permitted by Tenant results in any contamination of the Demised Premises, the
Building, the Project or any adjacent property, Tenant shall promptly take all
actions at its sole expense as are necessary to return the Demised Premises, the
Building, the Project or adjacent property to the condition existing prior to
the time of such contamination, provided that Landlord's approval of such action
shall first be obtained, which approval shall not unreasonably be withheld so
long as such actions would not potentially have any material adverse long-term
or short-term effect on the Demised Premises, the Building or the Project.
38.1.1 Business Landlord acknowledges that it is not the
intent of this Article 38 to prohibit Tenant from operating its business as
described in Section 2.1.6 above.
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Tenant may operate its business according to the custom of the industry so long
as the use or presence of Hazardous Material is strictly and properly monitored
according to all applicable governmental requirements. As a material inducement
to Landlord to allow Tenant to use Hazardous Material in connection with its
business, Tenant agrees to deliver to Landlord prior to the Term Commencement
Date a list identifying each type and category for each type of Hazardous
Material to be present on the Demised Premises and setting forth any and all
governmental approvals or permits required in connection with the presence of
such Hazardous Material on the Demised Premises ("Hazardous Material List").
Tenant shall deliver to Landlord an updated Hazardous Material List at least
once a year and shall also deliver an updated list before any new Hazardous
Material is brought onto the Demised Premises. Tenant shall deliver to Landlord
true and correct copies of the following documents (the "Documents") relating to
the handling, storage, disposal and emission of Hazardous Material prior to the
Term Commencement Date, or if unavailable at that time, concurrent with the
receipt from or submission to a governmental agency: permits; approvals; reports
and correspondence; storage and management plans, notice of violations of any
laws; plans relating to the installation of any storage tanks to be installed in
or under the Building or the Project (provided, said installation of tanks shall
only be permitted in Landlord's sole and absolute discretion); and all closure
plans or any other documents required by any and all federal, state and local
governmental agencies and authorities for any storage tanks installed in, on our
under the Building or the Project for the closure of any such tanks. Tenant is
not required, however, to provide Landlord with any portion(s) of the Documents
containing information of a proprietary nature which, in and of themselves, do
not contain a reference to any Hazardous Material or hazardous activities. It is
not the intent of this Section to provide Landlord with information which could
be detrimental to Tenant's business should such information become possessed by
Tenant's competitors.
38.2 Testing At any time, and from time to time, prior to the
expiration or earlier termination of the Term, Landlord shall have the right to
conduct appropriate tests of the Demised Premises, Building and Project to
demonstrate that contamination has occurred as a result of Tenant's use of the
Demised Premises. Tenant shall be solely responsible for and shall defend,
indemnify and hold the Landlord, its agents and contractors harmless from and
against any and all claims, costs and liabilities including actual attorneys'
fees, charges and disbursements, arising out of or in connection with any
removal, clean up, restoration and materials required hereunder to return the
Demised Premises and any other property of whatever nature to their condition
existing prior to the time of any such contamination. Tenant shall pay for the
cost of the tests of the Demised Premises.
38.2.1 Testing Prior to Term Commencement Date Landlord
shall, at its sole cost and expense and prior to delivering possession of the
Demised Premises to Tenant, conduct a Base Line Phase I Environmental Assessment
("Base Line Study") a copy of which shall be provided to the Tenant.
38.2.2 Testing at Lease Termination Landlord shall, at the
sole cost and expense of the Tenant, conduct a Base Line Study at the end of the
Term of the Lease or the Termination of the Lease, a copy of which shall be
provided to the Tenant. If the Base Line Study reveals contamination not
revealed in the Base Line Study conducted prior to the Term
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Commencement Date and such contamination is the result of the activities of the
Tenant, it's contractors, invitees, guests, agents or employees, Tenant shall be
solely responsible for and shall defend, indemnify and hold the Landlord, its
agents and contractors harmless from and against any and all claims, costs and
liabilities including actual attorneys' fees, charges and disbursements, arising
out of or in connection with any removal, clean up, restoration and materials
required hereunder to return the Demised Premises and any other property of
whatever nature to their condition existing prior to the time of any such
contamination.
38.3 Underground Tanks If underground or other storage tanks storing
Hazardous Materials are located on the Demised Premises or are hereafter placed
on the Demised Premises by any party, to the extent Tenant has actual knowledge
of the presence of such storage tanks on the Demised Premises, Tenant shall
monitor the storage tanks, maintain appropriate records, implement reporting
procedure, properly close any underground storage tanks, and take or cause to be
taken all other steps necessary or required under the California Administrative
Code, Title 23, chapter 3, Subchapter 16, "Underground Storage Tank
Regulations," and Division 20, chapter 6.7 of the California Health & Safety
Code, "Underground Storage of Hazardous Substances," as they now exist or may
hereafter be adopted or amended.
38.4 Tenant's Obligations Tenant's obligations under this Article 38
shall survive the expiration or earlier termination of the Lease. During any
period of time employed by Tenant or Landlord after the termination of this
Lease to complete the Removal from the Demised Premises of any such Hazardous
Materials and the release and termination of any licenses or permits restricting
the use of the Demised Premises, Tenant shall continue to pay the full Rent in
accordance with this Lease, which Rent shall be prorated daily.
38.5 Definition of "Hazardous Material." As used herein, the term
"Hazardous Material" means any hazardous or toxic substance, material or waste
which is or becomes regulated by any local governmental authority, the State of
California or the United States government. The term "Hazardous Material"
includes, without limitation, any material or substance which is (is) defined as
a "hazardous waste", "extremely hazardous waste" or "restricted hazardous waste"
under Section 25515 or 25117, or listed pursuant to Section 25140, of the
California health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste
Control Law), (ii) defined as a "hazardous substance" under Section 25316 of the
California Health and Safety Code, Division 2, Chapter 6.8
(Carpenter-Presly-Tanner Hazardous Substance Account Act), (iii) defined as a
"hazardous material," hazardous substance" or "hazardous waste" under Section
25501 of the California Health and Safety Code, Division 20, Chapter 6.95
(Hazardous Substances), (v) petroleum, (vi) asbestos, (vii) listed under Article
9 and defined as hazardous or extremely hazardous pursuant to Article 11 of the
Title 22 of the California Administrative Code, Division 4, Chapter 20, (viii)
designated as a "hazardous substance" pursuant to Section 311 of the Federal
Water Pollution Control Act (33 U.S.C. Section 1317), or (ix) defined as a
"hazardous waste" pursuant to Section 1004 of the Federal Resource Conversation
and Recovery Act, 42 U.S.C. Section 6901, et. seq. (52 U.S.C. Section 6903), or
(x) defined as a "hazardous substance" pursuant to Section 101 of the
Comprehensive Environmental Response Compensation and Liability Act, 42 U.S.C.
Section 9601 et. seq. (42 U.S.C. Section 9601).
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39. Miscellaneous
39.1 Terms and Headings Where applicable in this Lease, the singular
includes the plural and the masculine or neutral includes the masculine,
feminine and neuter. The section headings of this Lease are not a part of this
Lease and shall have no effect upon the construction or interpretation of any
part hereof.
39.2 Examination of Lease Submission of this instrument for
examination or signature by Tenant does not constitute a reservation of or
option for lease, and it is not effective as a lease or otherwise until
execution by and delivery to both Landlord and Tenant.
39.3 Time is of the essence with respect to the performance of every
provision of this Lease in which time of performance is a factor.
39.4 Covenants and Conditions Each provision of this Lease performable
by Tenant shall be deemed both a covenant and a condition.
39.5 Consents Whenever consent or approval of either party is
required, that party shall not unreasonably withhold, delay or condition such
consent or approval, except as maybe expressly set forth to the contrary.
39.6 Entire Agreement The terms of this Lease are intended by the
parties as a final expression of their agreement with respect to the terms as
are included herein, and may not be contradicted by evidence of any prior or
contemporaneous agreement. The Basic Lease Provisions, General Provisions, Work
Letter and Exhibits all constitute a single document and are incorporated
herein.
39.7 Severability Any provision of this Lease which shall provide to
be invalid, void, or illegal in no way affects, impairs or invalidates any other
provision hereof, and such other provisions shall remain in full force and
effect.
39.8 Recording Landlord may, but shall not be obligated to, record a
short form memorandum hereof without the consent of Tenant. Neither party shall
record this Lease. Landlord shall be responsible for the cost of recording any
Memorandum of Lease, including any transfer or other taxes incurred in
connection with said recordation.
39.9 Impartial Construction. The language in all parts of this Lease
shall be in all cases construed as a whole according to its fair meaning and not
strictly for or against either Landlord or Tenant.
39.10 Inurement Each of the covenants, conditions and agreements
herein contained shall inure to the benefit of and shall apply to and be binding
upon the parties hereto and their respective heirs, legatees, devises,
executors, administrators, successors, assigns, sublessees, or any part thereof
in any manner whatsoever. Nothing in this Section 39.10 contained shall in any
way alter the provisions against assignment or subletting in this Lease
provided.
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39.11 Notices Any notice, consent, demand, bill, statement, or other
communication required or permitted to be given hereunder must be in writing and
may be given by personal delivery, reputable overnight courier or by mail, and
if given by mail shall be deemed sufficiently given two (2) days after time when
deposited in United States Mail if sent by registered or certified mail, and if
given by other means shall be deemed given when received, addressed to Tenant or
Landlord at the addresses shown in Section 2.1.11 of the Basic Lease Provisions.
Either party may, by notice to the other given pursuant to this Section, specify
additional or different addresses for notice purposes.
39.12 California Jurisdiction This Lease has been negotiated and
entered into in the State of California and shall be governed by, construed and
enforced in accordance with the laws of the State of California, applied to
contracts made in California for California domiciliaries to be wholly performed
in California.
39.13 Authority That individual or those individuals signing this
Lease guarantee, warrant and represent that said individuals have the power,
authority and legal capacity to sign this Lease on behalf of and to bind all
entities, corporations, partnerships, joint ventures or other organizations
and/or entities on whose behalf said individual or individuals have signed.
40. Option to Extend Term
40.1 Tenant shall have the option ("Option") to extend the term of
this Lease upon the following terms and conditions:
40.1.1 Tenant shall have one (1) option to extend the term
of this Lease five (5) years on the same terms and conditions as this Lease.
Basic Annual Rent shall be adjusted on the first day of the renewal term to the
then prevailing market rental rate for buildings of similar age, size and
construction on the date Tenant exercises the Option such prevailing market
rental rate will be negotiated between Landlord and Tenant.
40.1.2 The Option is not personal to Tenant and may be
exercised by any assignee or the Lease permitted under the terms of the Lease.
However, the Option herein granted is not assignable separate and apart from
this Lease.
40.1.3 The Option is conditional upon Tenant giving Landlord
written notice of its election to exercise the Option at least one (1) year
prior to the end of the expiration of the initial term of this Lease.
40.1.4 The Landlord and Tenant shall have sixty (60) days to
agree as to the prevailing market rate for the term of the Option. If the
Landlord and Tenant are unable to agree on the prevailing market rate, Landlord
and Tenant, shall each engage appoint an M.A.I. appraiser who shall then select
a third independent M.A.I. appraiser who shall, within sixty (60) days after the
appointment set the prevailing market rental rate for the term of the Option.
After the prevailing market rental rate has been set, the third independent
M.A.I. appraiser shall immediately notify both parties. If Tenant objects to the
prevailing market
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rental rate, Tenant shall have the right to have this Lease expire at the end of
the Term, and Tenant and Landlord shall share equally all the costs in
connection with the appraisal procedure that set the prevailing market rental
rate. Tenant's election to allow this Lease to expire at the end of the Term
must be exercised within ten (10) days after Tenant's receipt of notice by the
third independent appraiser of the prevailing market rental rate for the Option.
If Tenant does not exercise it's election within the ten (10) day period, the
Term of this Lease shall be extended as provided in this Article 40. In no event
shall the prevailing market rental rate be less than the rental rate of the
final month of the Term of this Lease.
40.1.5 Tenant shall not have the right to exercise any
Option, notwithstanding anything set forth above to the contrary:
(a) During the time commencing from the date
Landlord gives to Tenant a written notice that Tenant is in default under any
provisions of this Lease and continuing until the default alleged in said notice
is cured; or
(b) At any time after an event of Default as
described in Article 23, of the Lease (without any necessity of Landlord to give
notice of such default to Tenant) and continuing until any such default is
cured, if curable; or
(c) In the event that Tenant has defaulted in the
performance of its obligations three (3) or more times and a service charge has
become payable under Section 23.1 for each of such defaults during the
twelve-month period immediately prior to the date that Tenant intends to
exercise the Option, whether or not the defaults are cured.
40.1.6 The period of time within which the Option may be
exercised shall not be extended or enlarged by reason of the Tenant's inability
to exercise the Option because of the foregoing provisions of this Section.
40.1.7 All rights of Tenant under the provisions of the
Option shall terminate and be of no further force or effect even after Tenant's
due and timely exercise of an Option, if, after such exercise, but prior to the
commencement date of the new term, (1) Tenant fails to pay to Landlord a
monetary obligation of Tenant for a period of Ten (10) days after written notice
from Landlord to Tenant; (2) Tenant fails to commence to cure a default (other
than monetary default) within Ten (10) days after the date Landlord gives notice
to Tenant of such default; or (3) Tenant has defaulted three (3) or more times
and a service charge under Section 23.1 has become payable for any such default,
during the period from the date of the exercise of such option to the date of
the commencement of such option term, whether or not such defaults are cured.
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IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the date
first above written.
"TENANT"
Trega Biosciences, Inc.
a Delaware corporation
By: /s/ Robert S. Whitehead
--------------------------------
Robert S. Whitehead
Its: President & CEO
"LANDLORD"
Aid Association for Lutherans
a Wisconsin corporation
By: /s/ Wayne C. Streck
--------------------------------
Wayne C. Streck
Its: Vice President, Mortgages and
Real Estate
By: /s/ Kenneth E. Podell
--------------------------------
Kenneth E. Podell
Its: Assistant Secretary
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EXHIBIT "A"
The exhibits and the attachments to Exhibits A, A-1, A-2 and Schedule 1 have
been omitted from this Agreement as filed with the Securities and Exchange
Commission (the "SEC"). The omitted information is considered immaterial from an
investor's perspective. Trega will furnish supplementally a copy of any of the
documents to the SEC upon request of the SEC.
<PAGE> 46
EXHIBIT "A-1"
The exhibits and the attachments to Exhibits A, A-1, A-2 and Schedule 1 have
been omitted from this Agreement as filed with the Securities and Exchange
Commission (the "SEC"). The omitted information is considered immaterial from an
investor's perspective. Trega will furnish supplementally a copy of any of the
documents to the SEC upon request of the SEC.
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EXHIBIT "A-2"
The exhibits and the attachments to Exhibits A, A-1, A-2 and Schedule 1 have
been omitted from this Agreement as filed with the Securities and Exchange
Commission (the "SEC"). The omitted information is considered immaterial from an
investor's perspective. Trega will furnish supplementally a copy of any of the
documents to the SEC upon request of the SEC.
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<PAGE> 48
EXHIBIT "B"
WORK LETTER
This is the Work Letter referred to in the Lease of even date herewith (the
"Lease") wherein Trega Biosciences, Inc. a Delaware corporation ("Tenant") has
agreed to lease certain space from Aid Association for Lutherans ("Landlord"),
at 9880 Campus Point Drive, San Diego, California. Unless otherwise defined
herein, all capitalized terms used herein shall have the respective meanings
assigned to them in the Lease.
1. LANDLORD'S WORK.
Landlord, at Landlord's sole cost and expense, shall put the Demised
Premises into base building condition as set forth in Schedule 1 attached hereto
and hereby made a part hereof (the "Landlord's Work") on or before the Term
Commencement Date provided that the portion of Landlord's Work described as the
Concurrent Work on Schedule 1 [collectively, the "Concurrent Work"] is to be
performed by Landlord concurrently with the performance of the Tenant's Work [as
such term is hereinafter defined] in a timely manner so as not to delay
completion of the Tenant's Work but, in any event, before the Term Commencement
Date. Landlord shall use Bycor General Contractors, Inc. as it general
contractor to do the Concurrent Work.
2. TENANT'S WORK.
The actual cost of all of the following shall be paid through the
construction escrow described hereinafter from the Tenant Improvement Allowance
and the Tenant Deposits, if necessary, [as such terms as hereafter defined].
(a) Landlord and Tenant have agreed that Landlord shall provide the
construction material, hardware and equipment and the labor to construct and
install the improvements to the Demised Premises described in the Plans (as that
term is hereinafter described). The material, hardware and equipment as
incorporated into the Demised Premises pursuant to the Plans are herein
collectively referred to as the "Tenant's Work". Subject to the provisions of
this Work Letter, Landlord and Tenant have agreed to proceed diligently to cause
the Tenant's Work approved by Landlord to be completed in accordance with the
terms and conditions of the Lease and this Work Letter.
<PAGE> 49
(b) Landlord shall submit instructions and Building plans and
Specifications described as ______________ and dated _____________ to Chapo &
Hall Architects (the "Architect") sufficient to allow the Architect to complete
a Preliminary Space Plan.
(c) Tenant agrees to cause Architect to deliver to Landlord on or
before ______________ plans for the Demised Premises ("Preliminary Space
Plans").
(d) On or before _________________, Tenant shall cause the Architect
to deliver to Landlord architectural construction drawing (which shall include
(i) furniture plans showing details of space occupancy; (ii) sprinkler
locations; (iii) reflected ceiling plans; (iv) partition and door location
plans; (v) electrical and telephone plans noting any special requirements; (vi)
fire safety systems; (vii) plumbing plans; (viii) structural plans; (ix) detail
plans; and (x) finish plans and schedules) and also specifications for the
Tenant's Work to be performed in the Demised Premises which architectural
construction drawings and specifications are acceptable to Tenant and sufficient
in all respects for Tenant to cause Tenant's mechanical/plumbing and electrical
engineer, Michael Wall Engineering (the "Engineer") to prepare the
Mechanical/Plumbing and Electrical Drawings (as hereinafter defined) and cause
the structural engineer Lyons, Warren and Associates, Inc., (the "Structural
Engineer") to prepare the Structural Drawings (as hereinafter defined). Such
architectural drawings and specifications shall be subject to Landlord's prior
written approval, which approval shall not be unreasonably withheld or delayed,
within seven (7) days of receipt by Landlord of a complete set of such
architectural construction drawing and specifications. If Landlord does not
approve the same, Landlord shall advise Tenant in writing generally of the
changes required in such architectural construction drawings and specifications
so that they will meet the Landlord's approval. Tenant shall cause the Architect
to revise such architectural construction drawings and specifications pursuant
to Landlord's comments and to deliver to Landlord, within seven (7) days after
receipt by Tenant of such comments, revised architectural construction drawings
and specifications noting the changes for Landlord's approval. Landlord shall
continue to comment on such architectural construction drawings and
specifications within seven (7) days of receipt of such revised architectural
construction drawings and specifications until such architectural construction
drawings and specifications are approved by Landlord. Such architectural
construction drawings and specifications when approved by Landlord are referred
to herein as the "Preliminary Architectural Plans".
(e) Tenant agrees to cause the Architect and the Engineer to prepare
mechanical, plumbing and electrical drawings for the Demised Premises and
deliver said drawings to Landlord within thirty (30) days after Landlord
approves the Preliminary Architectural Plans. Tenant and the Engineer shall
cooperate fully to provide all information
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<PAGE> 50
necessary for the timely completion of the mechanical, plumbing and electrical
drawings and approval thereof by Landlord. Landlord agrees to either approve or
disapprove said mechanical, plumbing and electrical drawings in writing within
seven (7) days of receipt thereof by Landlord. If Landlord disapproves of said
drawing, Landlord agrees to advise Tenant in writing generally of the required
changes. Tenant shall cause the Engineer to deliver to Landlord mechanical,
plumbing and electrical drawings revised pursuant to Landlord's comments and
Landlord agrees to either approve or disapprove of the revised mechanical,
plumbing and electrical drawings within four (4) days. This procedure shall be
repeated until Landlord approves the mechanical, plumbing and electrical
drawings for the Demised Premises. The mechanical, plumbing and electrical
drawings for the Demised Premises which are approved by Landlord shall be
referred to herein as the "Mechanical/Plumbing and Electrical Drawings".
(f) Tenant agrees to cause the Architect and the Structural Engineer
to prepare structural drawings for the Building and deliver said drawings to
Landlord within thirty (30) days after Landlord approves the Preliminary
Architectural Plans. Tenant and the Structural Engineer shall cooperate fully to
provide all information necessary for the timely completion of the structural
drawings and approval thereof by Landlord. Landlord agrees to either approve or
disapprove said structural drawings in writing within seven (7) days of receipt
thereof by Landlord. If Landlord disapproves of said drawing, Landlord agrees to
advise Tenant in writing generally of the required changes. Tenant shall cause
Structural Engineer to deliver to Landlord structural drawings revised pursuant
to Landlord's comments and Landlord agrees to either approve or disapprove of
the revised structural drawings within four (4) days. This procedure shall be
repeated until Landlord approves the structural drawings for the Building. The
structural drawings for the Building which are approved by Landlord shall be
referred to herein as the "Structural Drawings".
(g) Pursuant to the approval by Landlord of the Mechanical/Plumbing
and Electrical Drawings and the Structural Drawings, Tenant agrees to cause the
Architect to revise the Preliminary Architectural Plans to include sufficient
detail so that Tenant can obtain a building permit for the Tenant's Work.
Landlord shall have the right to approve or disapprove said revised plans by
written notice to Tenant within seven (7) days of receipt by Landlord of such
revised plans. If Landlord does not approve the same, Landlord shall advise
Tenant in writing generally of the changes required in such plans so that they
meet Landlord's approval. Tenant shall cause the Architect to revise such plans
pursuant to Landlord's comments and Landlord agrees to either approve or
disapprove of the revised Preliminary Architectural Plans within four (4) days.
This procedure shall be repeated until Landlord approves the Preliminary
Architectural Plans. Further, if Landlord determines that as a result
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<PAGE> 51
of such revisions, the Mechanical/Plumbing and Electrical Drawings or the
Structural Drawings should be revised, then Landlord shall inform Tenant of such
changes generally in writing and Tenant shall cause the Mechanical/Plumbing
Electrical Drawings and/or the Structural Drawings to be revised to Landlord's
satisfaction within seven (7) days of receipt of Landlord's comments. The
revised Preliminary Architectural Plans when approved by Landlord are referred
to herein as the "Architectural Plans". The "Preliminary Architectural Plans",
the "Preliminary Space Plans", the "Mechanical/Plumbing and Electrical
Drawings", the "Structural Plans" and the "Architectural Plans" are herein
collectively referred to as the "Plans". Tenant must submit to Landlord a copy
of the building permit before the start of the Tenant Work. The Architectural
Plans, the Mechanical/Plumbing and Electrical Drawings, and the Structural
Drawings shall be produced on CAD and shall become the property of the Landlord.
(h) Tenant represents to Landlord that Tenant has reviewed its needs
and the above-specified delivery dates with the Architect and that Tenant has
assured itself that the Plans can be delivered as herein above required. Tenant
agrees to cooperate with the Architect as promptly as possible and in any event
in sufficient time to cause the Plans to be prepared and timely delivered as
herein above required.
(i) Neither review nor approval by Landlord of any of the Plans shall
constitute a representation or a warranty by Landlord that such Plans either (i)
are complete or suitable for their intended purposes or (ii) comply with
applicable laws, ordinances, codes and regulation, it being expressly agreed by
Tenant that Landlord assumes no responsibility or liability whatsoever to Tenant
or to any other person or entity for such completeness, suitability or
compliance.
(j) Tenant's obligation to pay Rent under the Lease shall not be
affected or deferred on account of any such delay to the extent the same results
from any of the following events (collectively, "Tenant Delays").
(1) The failure of Tenant to furnish any of the Plans in
accordance with the schedule and meeting the requirements
set forth in this subsection 1 including, without
limitation, the failure of Landlord and Tenant to agree upon
final versions of the Plans by the following dates: (i)
Preliminary Space Plans - _________________; (ii)
Mechanical/Electrical Drawings - _________________; (iii)
Preliminary Architectural Plans -
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______________; and (iv) Architectural Plans -
_____________________; or
(2) Changes in the Plans requested by Tenant (notwithstanding
Landlord's approval of such changes); or
(3) The performance of any work by Tenant or any person, firm or
corporation employed by Tenant; or
(4) Any default or delay by Tenant or its agents hereunder or
any Default under the Lease.
(k) Landlord's determination of the duration of Tenant Delays shall be
conclusive and binding upon Tenant absent manifest error. Landlord agrees to
provide Tenant with notice of Landlord's determination of the duration of
Tenant's delay within a reasonable time following the occurrence of such delay.
3. COST OF TENANT'S WORK.
(a) Before commencement of any portion of the Tenant's Work, Landlord
shall obtain a contract to perform the Tenant's Work by bidding the Tenant's
Work to certain of those general contractors from Landlord's list of approved
contractors, which list is attached hereto as Schedule 2 and made a part hereof.
Landlord agrees to promptly give Tenant a copy of the contract. The general
contractor must use only those subcontractors on Landlord's list of approved
subcontractors set forth on Schedule 3 attached hereto as the same may be
amended by Landlord from time to time.
(b) Landlord shall provide Tenant with a Tenant Improvement Allowance
of up to Forty Dollars per rentable square feet in the Demised Premises as a
credit towards the cost of the Tenant's Work. Tenant shall pay all costs of the
Tenant's Work in excess of the Tenant Improvement Allowance. All amounts shall
be paid by Tenant within thirty (30) days after Tenant's receipt of invoices
therefor, or if paid through the construction escrow in accordance with (e)
below.
(c) Tenant shall pay a construction coordination and overhead fee to
Landlord in an amount equal to three (3) percent of the Tenant Improvement
Allowance to cover Landlord's coordination, supervision and overhead and related
expense allocable to such work (the "Coordination Fee"), provided however, if
the total costs of the Tenant's Work pursuant
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<PAGE> 53
to this Work Letter exceed Forty Dollars ($40.00) per rentable square foot of
the Demised Premises due exclusively to the need for the general contractor to
pay its subcontractors "overtime" to complete the Tenant's Work ("Excess Cost"),
Landlord shall be responsible for such Excess Cost for an amount up to, but not
in excess of the "Coordination Fee" due Landlord, which Excess Cost shall be
credited against the Coordination Fee. The Coordination Fee shall be deducted by
Landlord from the Tenant Improvement Allowance. The Coordination Fee is intended
to be all inclusive and includes: (i) the cost of Landlord's preliminary and
ongoing review of the Preliminary Space Plans, the Plans and all other
construction documents; (ii) coordination of the Landlord's Work among Landlord
and Tenant's contractors, subcontractors, Interior Space Planner, agents,
representatives and agent; (iii) the cost of temporary electricity, temporary
toilets and hot and cold water to the Demised Premises during the construction
period; (iv) the cost of the construction escrow; and (v) initiation and
monitoring of the punchlist process. Landlord agrees that Tenant shall not be
required to pay any sums in addition to the Coordination Fee for other
coordination services by Landlord unless such services are requested in writing
by Tenant.
(d) Landlord shall make payments of the Tenant Improvement Allowance
only one time per month upon receipt of invoices, sworn statements, mechanic's
lien waivers as provided herein, and such other documentation as Landlord may
reasonably request. Payment of the Tenant Improvement Allowance shall be made by
Landlord upon Tenant's direction through a construction escrow with the title
insurance company selected by Landlord pursuant to escrow instructions approved
by Landlord. Landlord shall have no obligation to make any payment of the Tenant
Improvement Allowance at any time the Tenant is in Default hereunder.
(e) Before commencing Tenant's Work, Tenant shall submit a total
project budget (the "Budget") outlining the cost of the Tenant's Work plus the
cost of all non-tenant improvement items, including soft costs to be incurred in
connection with the Demised Premises (collectively, the "Tenant's Project
Costs"). Tenant shall deliver to Landlord an updated Budget with each draw
request for a payment of a portion of the Tenant Improvement Allowance. If, as
of the time any such draw request is made, the cost of the Tenant's Work
pursuant to the current Budget exceed the amount of the Tenant Improvement
Allowance, Tenant shall deposit into the escrow the amount by which the Tenant's
Work set forth in the current Budget exceed the amount of the Tenant Improvement
Allowance, less any amounts previously deposited into the escrow by Tenant
before a draw request will be funded. All amounts so deposited by Tenant are
herein collectively called "Tenant Deposits".
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(f) The general contractor shall make draw requests on the escrow
based upon the percentage of Tenant's Project Costs incurred as of the date of
the draw request in a form and format approved by Landlord. The general
contractor shall present to Landlord, Tenant and to the title company which is
acting as escrowee: (i) a letter requesting a disbursement of funds (less a
holdback for retainage of 10%); (ii) invoices (or paid receipts for each item
paid by Tenant and for which Tenant is seeking reimbursement); (iii) a copy of
any canceled checks pursuant to which such invoice has been paid, and, (iv) with
respect to any construction to any portion of the Demised Premises, such lien
waivers (for lienable items) required by the title company or Landlord. The lien
waiver for the present draw request from the general contractor, each
subcontractor and material supplier will be a conditional lien waiver, and for
the previous draw request each subcontractor and material supplier will deliver
an unconditional lien waiver with each draw request to the Landlord. Tenant
shall have ten (10) days from receipt of the draw request to review the draw
request and inspect the quality of the work completed by the general contractor
and advise the general contractor and Landlord in writing of any respects in
which the draw request or work completed is disapproved and the reason for such
disapproval. Otherwise, the draw request and work completed by the general
contractor will be deemed approved. Landlord shall have no obligation to make
payment until: (i) the draw request and quality of work completed by the general
contractor has been approved by the Tenant; (ii) the draw request and quality of
work completed by the general contractor has been approved by the Landlord;
(iii) the draw request and quality of work completed by the general contractor
has been approved in writing to Landlord by the Architect; (iv) all waivers for
lienable items for the prior draw are submitted; and (v) the title company has
provided a title update showing no construction or mechanic's liens on title.
(g) Draw requests shall be submitted to Landlord, Tenant and the title
company not later than the 23rd day of the calendar month. Not later than the
10th day of the next calendar month Landlord will review Tenant's Work and
general contractor's draw request and advise the general contractor and the
Tenant in writing of any respects in which the draw request is disapproved and
the reason for such disapproval. Such advice need not comply with the notice
provisions of the Lease. Otherwise, the draw request will be deemed approved.
Draw requests submitted by the 23rd day of the calendar month shall be paid,
subject to the foregoing approval procedure, not later than the 15th day of the
following calendar month. Landlord and Tenant agree to cooperate in attempting
to resolve disapproved portions of each draw request. Failure by Landlord to pay
general contractor amounts due and approved pursuant to the approval process of
this Work Letter shall constitute a Default by Landlord.
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(h) Notwithstanding the foregoing, if, and only if, on the date that
all Tenant's Work and all other nonimprovement items have been completed and
paid for the sum of the Tenant Improvement Allowance and any Tenant Deposits
exceeds the amount disbursed by the escrowee on account of Tenant's Projects
Costs (the amounts of such excess being herein called the "Excess Funds") and
provided that Tenant is not then in Default under the Lease, Landlord shall pay
to Tenant, within ten (10) days following the Term Commencement Date out of such
Excess Funds an amount not to Exceed the Tenant Deposits, if any.
4. ACCESS BY TENANT; WORK IN HARMONY.
Landlord shall permit Tenant and Tenant's agents, representatives,
employees, suppliers, contractors, subcontractors, mechanics and workmen to
enter the Demised Premises before the completion of the Landlord's Work. Tenant
agrees for itself and its agents, representatives, employees, suppliers,
contractors, subcontractors, workmen, mechanics, and suppliers, that all such
parties shall work in harmony and not unreasonably interfere with Landlord and
Landlord's agents, representatives, employees, suppliers, contractors,
subcontractors, mechanics, and workmen in doing the Landlord's Work in the
Demised Premises. Landlord agrees for itself and its agents, representatives,
workmen, mechanics and suppliers that all such parties shall work in harmony and
not unreasonably interfere with Tenant and Tenant's agents, representatives,
employees, suppliers, contractors, subcontractors, mechanics, and workmen in
doing the Tenant Work.
5. CONSTRUCTION REQUIREMENTS.
(a) Tenant agrees that the entry into the Demised Premises by Tenant
and its contractors shall be deemed to be under all of the terms, covenants,
conditions and provisions of the Lease except as to the covenant to pay Rent,
and Tenant further agrees that in connection therewith Landlord shall not be
liable except due to Landlord or it's agents, contractors or employees gross and
willful negligence, in any way for any injury, loss or damage which may occur to
any of Tenant's Work or installations made in the Premises or to property placed
therein before the Term Commencement Date and thereafter, the same being at
Tenant's sole risk. In addition, Tenant shall require all entities performing
work on behalf of Tenant to provide protection for existing improvements to an
extent that is satisfactory to Landlord and shall allow Landlord access to the
Premises, for inspection purposes, at all times during the period when Tenant is
undertaking construction activities therein. If any entity performing work on
behalf of Tenant causes any injury to any person or any damage to the Demised
Premises, the Building (including Landlord's Work), any other property of
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<PAGE> 56
Landlord or any other person, then Tenant agrees to indemnify, defend and hold
Landlord harmless from any loss, damage or injury suffered in connection with
any such damage or injury (except due to the negligence and willful misconduct
of Landlord, its agents, contractors or employees). Further, Tenant shall cause
such damage to be repaired at Tenant's expense and if Tenant fails to cause such
damage to be repaired promptly upon Landlord's demand therefor, Landlord may in
addition to any other rights or remedies available to Landlord under this Lease
or at law or equity cause such damage to be repaired, in which event Tenant
shall promptly upon Landlord's demand pay to Landlord the costs of such repairs.
(b) All contractors and subcontractors shall use only those corridors
and entrances designated by Landlord or Landlord's designated representative for
ingress and egress of personnel and the delivery and removal of equipment and
material through or across any common areas of the Building shall only be
permitted with the written approval of Landlord or it's designated
representatives and during hours determined by Landlord. Landlord shall have the
right to order Tenant or any contractor or subcontractor who violates the above
requirements to cease work in the Building and leave the Building and remove its
equipment and its employees from the Building and, at Landlord's option, restore
any portion of the Building on which it has done work to its original condition.
(c) Tenant agrees that all services and work performed on the Demised
Premises by, on behalf of, or for the account of Tenant, including installation
of telephone, carpeting, materials and personal property delivered to the
Demised Premises shall be done in a first-class workmanlike manner using only
good grades of material.
(d) Except due to the negligence and willful misconduct or Landlord or
its agent, contractors or employees, Tenant agrees to protect, indemnify, defend
and hold Landlord and its agents partners, contractors, and employees harmless
from and against any and all losses, damages, liabilities, claims, liens, costs
and expenses, including reasonable attorney's fees, of whatever nature including
those to the person and property of Tenant, its employees, agents, invitees,
licensees and other arising out of or in connection with the activities of
Tenant or Tenant's contractors in or about the Demised Premises or the Building,
and the cost of any repairs to the Demised Premises or the Building necessitated
by activities of Tenant or Tenant's contractors.
(e) Tenant shall secure, pay for, and maintain during the continuance
of its work within the Demised Premises, policies of insurance with such
coverages and such amounts as Landlord may reasonably require, which policies
shall be endorsed to include
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Landlord and its contractors and their respective employees and agents and
Landlord's mortgagees as additional insured parties and which shall provide
thirty (30) days' prior written notice of any alteration or termination of
coverage, in such amounts and insuring such risks as Landlord may require.
Tenant shall not permit Tenant's contractors to commence any work until all
required insurance has been obtained by Tenant and certificates evidencing such
coverage have been delivered to Landlord.
6. ACCEPTANCE OF CONCURRENT WORK.
Landlord shall give Tenant or shall cause its architect to give Tenant
ten (10) days' prior written notice of the date on which the Concurrent Work to
be performed by Landlord hereunder shall be Substantially Completed. Tenant
shall then have the obligation to conduct an inspection of the Demised Premises
with Landlord or Landlord's representatives within seven (7) days of the date of
such notice and to give Landlord, within said 7-day period, a punch list of all
items ("Punchlist Items") to be completed and/or corrected. Any items not on
such punch list shall be deemed accepted by Tenant. Landlord shall correct any
Punchlist Item within a reasonable period of time after the Term Commencement
Date. The determination of Landlord's architect for the Demised Premises shall
be final, conclusive, and binding on Tenant as to whether the Concurrent Work is
"Substantially Completed".
7. ACCEPTANCE OF TENANT'S WORK.
Landlord shall give Tenant or cause its architect to give Tenant ten
(10) days' prior written notice of the date on which the Tenant's Work to be
performed by Landlord hereunder shall be Substantially Completed. Tenant shall
then have the obligation to conduct an inspection of the Demised Premises with
Landlord or Landlord's representatives within seven (7) days of the date of such
notice and to give Landlord, within said 7-day period, a punch list of all items
("Punchlist Items") to be completed and/or corrected. Any items not on such
punch list shall be deemed accepted by Tenant. Landlord shall correct any
Punchlist Item within a reasonable period of time after the Term Commencement
Date. The determination of Landlord's architect for the Demised Premises shall
be final, conclusive, and binding on Tenant as to whether the Tenant's Work is
"Substantially Completed".
8. MISCELLANEOUS.
(a) Except as expressly set forth herein, Landlord has no other
agreement with Tenant and has no other obligation to do any work or pay any
amounts with respect to the Demised Premises. Any other work in the Demised
Premises which may be permitted by
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Landlord pursuant to the terms and conditions of the Lease shall be done at
Tenant's sole cost and expense and in accordance with the terms and conditions
of the Lease.
(b) The failure by Tenant to pay any monies due Landlord pursuant to
this Work Letter within the time period herein stated shall be deemed a Default
under the terms of the Lease for which Landlord shall be entitled to exercise
all remedies available to Landlord for nonpayment of Rent. All late payments
shall bear interest and shall be subject to a late charge pursuant to the Lease.
(c) The failure by Landlord to pay any monies due general contractor
pursuant to this Work Letter within the time period herein stated shall be
deemed a Default by Landlord under the terms of the Lease for which Tenant shall
be entitled to exercise all remedies available to Tenant pursuant to the Lease.
In addition, Tenant may at Tenant's election, cure such Default by Landlord, by
payment of such monies due general contractor, in which event Tenant may offset
Rent by the amount paid to cure the Default.
(d) If during the construction period pursuant to this Work Letter,
the Project is sold by Landlord to a third-party, Landlord agrees to utilize a
portion of the sales proceeds to fund a construction escrow account with the
title company in the amount of the unfunded portion or the Tenant Improvement
Allowance. If Landlord, upon sale of the Project does not utilize a portion of
the sales proceeds to fund a construction escrow account with the title company
in the amount of the unfunded portion of the Tenant Improvement Allowance,
Tenant may at Tenant's election, fund such unfunded portion of the Tenant
Improvement Allowance by payment of such monies to the title company, in which
event Tenant may offset Rent by the amount paid to the title company.
(e) Upon completion of the project, Tenant shall furnish two sets of
Operations and Maintenance Manuals to Landlord and copies of all warranties and
guaranties.
(f) Upon completion of the project, Tenant shall provide to Landlord,
CAD produced record drawings of Architectural, Structural, and
Mechanical/Plumbing and Electrical Drawings. Tenant shall provide a CAD disk and
one set of reproducible drawings. All drawings and specifications shall be the
property of Landlord.
(g) This Work Letter is being executed in conjunction with the Lease
and is subject to each and every term and condition thereof, including, without
limitation, the limitations of Landlord's liability set forth therein.
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(h) Any time the approval of either Landlord or Tenant shall be
required by the terms of this Work Letter, the failure by either Landlord or
Tenant to respond within the stated number of days shall be deemed to be such
party's approval.
DATED this _________ day of __________________, 1997.
LANDLORD: TENANT:
Aid Association for Lutherans, Trega Biosciences, Inc.,
a Wisconsin corporation a Delaware corporation
By: By:
------------------------------- --------------------------------
Wayne C. Streck Robert S. Whitehead
Vice President President & CEO Mortgage and
Real Estate
By:
--------------------------------
Kenneth E. Podell
Assistant Secretary
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SCHEDULE 1
A. Landlord's Work:
Landlord and Tenant have agreed that Landlord will not be required to
perform any Landlord's Work prior to the Concurrent Work or Tenant's
Work.
The Landlord and Tenant have agreed that the base building condition
has been set forth in reports prepared by Kavanagh Associates entitled
"Building and Systems Evaluation of 9880 Campus Point Drive" and by
Dames & Moore entitled _________________ dated _____________, copies
of which are attached as Exhibits A and B.
B. Concurrent Work:
Landlord and Tenant have agreed that the Landlord will perform the
scope of work as set forth in a bid prepared by Bycor General
Contractors, Inc., entitled "Building & Systems Evaluation - 9880
Campus Point Drive under the Subsection "Owner" dated July 9, 1997 in
the amount of $102,436.99 a copy of which is attached hereto as
Exhibit C.
<PAGE> 61
SCHEDULE 2
Tenant and Landlord have agreed to utilize Bycor General Contractors, Inc.
<PAGE> 62
SCHEDULE 3
<PAGE> 63
EXHIBIT "C"
RULES AND REGULATIONS
The Tenant agrees to comply with the following rules and regulations which apply
to the Project. Landlord reserves the right form time to time to amend or
supplement such rules and regulations and Tenant agrees to comply therewith,
provided that (a) notice of such amended or supplemental rules and regulations
is given to Tenant, and (b) such amended or supplemental rules and regulations
apply uniformly to all tenants of the Project. In the event of any conflict
between the Lease and the rules and regulations, the provisions of the Lease
shall be controlling.
1. All garbage and refuse shall be kept in the kind of container
specified by Landlord, and shall be placed outside of the Demised
Premises prepared for collection in the manner and at the times and
places specified by Landlord. If Landlord shall provide or designate a
service for picking up refuse and garbage, Tenant shall use same at
Tenant's cost. Tenant shall pay the cost of removal of any of Tenant's
refuse or rubbish.
2. No aerial shall be erected on the roof or exterior walls of the
Demised Premises, the Building, or the Project without in each
instance the written consent of the Landlord. Any aerial so installed
without such written consent shall be subject to removal without
notice at any time.
3. No loud speaker, televisions, phonographs, radios, or other devices
shall be used in a manner so as to be heard or seen outside of the
Demised Premises without the prior written consent of the Landlord.
4. Tenant shall keep the outside areas immediately adjoining the Demised
Premises clean and free from dirt, rubbish, pallets, etc., to the
satisfaction of Landlord, and Tenant shall not place or permit any
obstruction or materials in such areas. If outside areas are not so
maintained within 12 hours after verbal notice of same, Tenant agrees
to pay a fee equal to the greater of $500.00 or the costs incurred by
Landlord to clean such outside areas. No exterior storage will be
allowed without permission in writing from Landlord.
5. Tenant and Tenant's employees shall park only the number of cars
approved and only in those portions of the parking area designated for
that purpose by Landlord, and
<PAGE> 64
shall not block access ways. Upon request by Landlord, Tenant shall
provide the license plate numbers of employee cars in order to
facilitate enforcement of this regulation. Tenant and Tenant's
employees shall not store vehicles or equipment in the parking areas.
6. The Demised Premises shall not be used for lodging, sleeping, cooking
or for any immoral or illegal purposes, or for any purpose that will
damage the Demised Premises, the Building or the Project or the
reputation thereof. Tenant will not use the Demised Premises, the
Building or the Project for any purpose other than that specified in
the Lease.
7. Tenant shall not do or permit any act or bring anything on the Project
which shall increase in any way the rate of insurance on the Building,
obstruct or interfere with the rights of other tenants, conflict with
fire regulations and fire laws, or conflict with ordinances
established by the Board of Health or any other governmental
authority.
8. The plumbing facilities shall not be used for any other purpose than
that which they are constructed, and no foreign substance of any kind
shall be thrown therein. The expense of any breakage, stoppage, or
damage resulting from a violation of this provision shall be borne by
Tenant, who shall, or whose employees, agents or invitees shall have
caused it.
9. Tenant shall use at Tenant's cost such pest extermination contractor
as Landlord may direct and at such intervals as Landlord may require.
10. Tenant shall not burn any trash or garbage of any kind in or about the
Project.
11. Tenant will protect carpeting from undue wear by providing carpet
protectors under chairs with coasters, and provide protective covering
in carpeted areas where spillage or excessive wear may occur.
12. Tenant's in air-conditioned space shall keep entry doors opening onto
corridors, lobby or courtyard closed at all times. Truck doors shall
be closed at all times when not in use, in order to maintain a uniform
appearance for the Project.
13. Tenant shall be responsible for repair of any damage occasioned by the
moving of freight, furniture or other objects into, within, or out of
the Building. No heavy
-2-
<PAGE> 65
objects in excess of 500 pounds shall be placed upon the floor without
Landlord's written consent as to the adequacy of the allowable floor
loading at the point where the objects are intended to be moved or
stored. Landlord may specify the time of moving to minimize
inconvenience to other tenants, if any.
14. Without Landlord's prior written approval, no drapes or sunscreens of
any nature shall be installed and the sash doors, sashes, windows,
glass doors, lights and skylights that reflect or admit light into the
Building shall not be covered or obstructed. Landlord shall have the
right to specify the type of window coverings which may be installed,
at Tenant's expense. Waste and excessive or unusual use of water shall
not be allowed. Tenant shall not mark, drive nails, screw or drill
into, paint, or in any way deface any surface or part of the Building
except that Tenant may hang pictures, blackboards, or similar objects,
providing that prior to the end of the Term, Tenant shall restore the
Building to its condition at the Term Commencement Date, less
reasonable wear and tear. The expense of repairing any breakage,
stoppage, or damage resulting from a violation of this rule shall be
borne by tenant who has caused such breakage, stoppage or damage.
15. No additional lock or locks shall be placed or changed by Tenant on
any door unless written consent of Landlord shall have first been
obtained. Two keys will be furnished by Landlord. All key will be
surrendered to Landlord upon termination of expiration of the Lease
Term.
16. No materials, supplies, equipment, finished products, or semi-finished
products, raw materials, or articles of any nature shall be stored or
permitted to remain on any portion of the Demised Premises outside the
Building constructed thereon, except with the prior written consent of
the Landlord.
17. Tenant shall not paint any warehouse floors without Landlord's prior
written consent. Prior to surrendering the Demised Premises upon
expiration or termination of the Lease, Tenant shall remove any paints
or sealers and restore the warehouse floor to its original condition
as of the Term Commencement Date, reasonable wear and tear excepted.
18. No electrical wiring, electrical apparatus or additional electrical
outlets shall be installed without the prior written approval of
Landlord. Any such installation may be removed by Landlord at Tenant's
expense. Tenant may not alter any existing electrical outlets or
overburden them beyond their designed capacity. Landlord
-3-
<PAGE> 66
reserves the right to enter the Demised Premises, with reasonable
notice to Tenant, for the purpose of installing additional electrical
wiring and other utilities for the benefit of the Tenant. Landlord
will direct electricians as to where and how telephone and telegraph
wires are to be introduced. The location of telephones, call boxes,
and other equipment affixed to the Demised Premises or the Building
shall be subject to the approval of Landlord.
19. It is understood that if Tenant or its sublessees, employees, agents,
or invitees violate any of these rules and regulations, resulting in
any damage to the Project or increased costs of maintenance of the
Project, or causes Landlord to incur expenses to enforce the rules and
regulations, Tenant will pay all such costs to Landlord as Additional
Rent.
-4-
<PAGE> 67
EXHIBIT "D"
TENANT ESTOPPEL CERTIFICATE
Aid Association for Lutherans
4321 North Ballard Road
Appleton, Wisconsin 54919
Re: Lease dated ___________________, ("Lease") between
____________________ ("Landlord") and ___________________________
("Tenant") of premises located at _______________________________,
("Demised Premises")
Ladies and Gentlemen:
We understand that the aforesaid Landlord will enter into a mortgage loan
financing with you (the "Loan"). We further understand that, as security for the
Loan, Landlord will execute an Assignment of Rents and Leases, pursuant to which
Landlord will assign the above-referenced Lease to you. In connection therewith,
we hereby certify to and agree with you as follows:
1. The Lease is in full force and effect, has not been modified
or amended, and is enforceable in accordance with its terms
except for:
NONE.
2. All conditions under the Lease have been satisfied, the term
of the Lease commenced on , expires on , and Tenant is now
in possession of the Demised Premises ( square feet) in
accordance with the terms of the Lease. The Lease provides
for the following:
NONE.
3. Tenant has neither assigned, transferred, nor encumbered the
Lease, or any interest therein, nor sublet the Demised
Premises, or any portion thereof.
4. The buildings, improvements, and space required to be
furnished to Tenant under the terms of the Lease and all
other matters required to be furnished
<PAGE> 68
or performed by the Landlord have been completed in all
respects to the satisfaction of Tenant.
5. All required common areas have been completed and all
required parking spaces have been furnished.
6. All duties of Landlord of an inducement nature have been
fulfilled and all other obligations required to be performed
or observed by Landlord have been duly and fully performed
or observed by Landlord, including, without limitation, the
satisfaction of Landlord's obligation to provide a tenant
improvement allowance to Tenant, if any.
7. After execution of this certificate by Landlord, upon
receipt of written notice from you, Tenant will make its
monthly rental payments as directed in such notice. Tenant's
address for notice purposes until Tenant notifies you
otherwise is:
ADDRESS
The acknowledgment and agreement of Landlord with this
certification shall constitute an express authorization for
Tenant to make such payments to Lender after such notice and
a release and discharge of all liability of Tenant to
Landlord for any such payments made to Lender. Until such
notice Tenant may make its monthly rental payments as
directed by Landlord.
8. Landlord has not waived the performance or observance by
Tenant of any of the terms, covenants, or conditions to be
performed or observed by Tenant under the Lease.
9. The total annual minimum rent under the Lease is $, no rent
or other sum payable by Tenant under the Lease has been
prepaid, and Tenant shall not prepay any such rent or other
sum more than one (1) month in advance, except with your
prior written consent.
10. Landlord is not in default under the Lease nor, to the best
of Tenant's knowledge, has Landlord failed to duly and fully
perform or observe any term, covenant, or condition by it to
be performed or observed under the
-2-
<PAGE> 69
Lease which would, but for the existence of any applicable
notice and/or grace period, constitute a default under the
Lease.
11. Tenant has received no notice and has no knowledge of a
prior sale, transfer, assignment, hypothecation, or pledge
of the Demised Premises, or any part thereof, or of the
Lease, or the rents or any other interest thereunder.
12. In the event you or any other purchaser at a foreclosure
sale or sale under private power contained in the mortgage
or deed of trust succeeds to the interest of the Landlord
under the Lease by reason of any private or judicial
foreclosure of the mortgage or deed of trust or the
acceptance by you of a deed in lieu of foreclosure, it is
agreed that, Tenant shall be bound to you or such other
purchaser under the terms, covenants and conditions of the
Lease for the remaining balance of the term thereof, with
the same force and effect as you or such other purchaser
were the landlord under such Lease. Tenant does hereby agree
to attorn to you or such other purchaser as its landlord,
such attornment to be effective and self-operative without
the execution of any further instruments on the part of any
of the parties to this certificate, immediately upon you or
such other purchaser's succeeding to the interest of
Landlord under the Lease; provided further, if Tenant is not
in default under any of the material terms, covenants or
conditions contained in the Lease, any transferee,
(including, but not limited to, you) of the interest of
Landlord in the property as a result of foreclosure, deed in
lieu of foreclosure or other proceeding for the enforcement
of the mortgage or deed of trust and such transferee's,
successors and assigns (such transferee, its successors and
assigns, including, but not limited to, you) shall not
disturb Tenant's rights under the Lease.
13. Except as otherwise provided in the Lease, Tenant to the
best of its knowledge, has never permitted the generation,
treatment, storage or disposal of any hazardous waste or
other hazardous or toxic substances on the Demised Premises
or any adjacent property.
14. The party executing this letter on behalf of Tenant is fully
authorized and empowered to do so.
-3-
<PAGE> 70
15. Tenant acknowledges that there are no actions, whether
voluntary or otherwise, pending against Tenant under the
bankruptcy laws of the United States or any state thereof.
If any part of the foregoing representations conflicts with the Lease, you may
rely upon the representations herein. Tenant acknowledges that you will rely
upon the matters set forth herein in advancing funds to Landlord under the Loan.
This letter shall inure to the benefit of, and may be relied upon by, you, your
successors and assigns.
Dated this _____ day of ________________, 1997.
TENANT:
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
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<PAGE> 71
The undersigned hereby acknowledges and agrees with the foregoing
certification this _____ day of ________________, 1997.
LANDLORD:
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
-5-
<PAGE> 72
EXHIBIT "E"
ACKNOWLEDGEMENT
Landlord and Tenant hereby acknowledge that as of the Term Commencement Date the
following have been agreed to:
1. The Term Commencement Date as set forth in Sections 2.1.8. and defined
in Section 4.2 of this Lease shall hereinafter be defined to have
occurred on _______________, 1998.
2. The Term Expiration Date as set forth in Sections 2.1.8. and defined
in Section 4.2 of this Lease, subject to extension or earlier
termination as provided herein shall hereinafter be defined to occur
on ___________________, 2008.
3. The Initial Area of Demised Premises, the Building and the Project on
the Term Commencement Date as set forth in Section 2.1.3. of the Lease
has been agreed to between the Landlord and Tenant subject to
adjustment in accordance with Section 8 hereof:
(a) Initial Area of the Demises Premises:
Initial Rentable Area: __________ sq. ft.
(b) Initial Area of the Building:
Initial Rentable Area: __________ sq. ft.
(c) Initial Area of the Project:
Initial Rentable Area: __________ sq. ft.
4. Tenant's Pro Rata Share of the Building as set forth in Section 2.1.6.
of this Lease will be 100%.
<PAGE> 73
Tenant's Pro Rata Share of the Project as set forth in Section 2.1.7.
of this Lease will be 100%.
IN WITNESS WHEREOF, the parties hereto have executed this
Acknowledgement as of the date first above written.
"TENANT"
Trega Biosciences, Inc.
a Delaware corporation
By:
--------------------------------
Robert S. Whitehead
Its: President & CEO
"LANDLORD"
Aid Association for Lutherans
a Wisconsin corporation
By:
--------------------------------
Wayne C. Streck
Its: Vice President, Mortgages and
Real Estate
By:
--------------------------------
Kenneth E. Podell
Its: Assistant Secretary
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<PAGE> 74
EXHIBIT "F"
FIXTURES TO REMAIN THE PROPERTY OF TENANT AT LEASE TERMINATION
DATE
<PAGE> 1
EXHIBIT 10.2
LEASE MANAGEMENT SERVICES, INC.
EQUIPMENT FINANCING AGREEMENT
(Number 10818)
THIS EQUIPMENT FINANCING AGREEMENT NUMBER 10818 ("Agreement") is dated as of the
date set forth at the foot hereof and is between LEASE MANAGEMENT SERVICES,
INC., ("Secured Party") and TREGA BIOSCIENCES, INC., ("Debtor").
1. EQUIPMENT; SECURITY INTEREST. The terms and conditions of this Agreement
cover each item of machinery, equipment and other property (individually an
"Item" or "Item of Equipment" and collectively the "Equipment") described in a
schedule now or hereafter executed by the parties hereto and made a part hereof
(individually a "Schedule" and collectively the "Schedules"). Debtor hereby
grants Secured Party a security interest in and to all Debtor's right, title and
interest in and to the Equipment under the Uniform Commercial Code, such grant
with respect to an Item of Equipment to be as of Debtor's execution of a related
Equipment Financing Commitment referencing this Agreement or, if Debtor then has
no interest in such Item, as of such subsequent time as Debtor acquires an
interest in the Item. Such security interest is granted by Debtor to secure
performance by Debtor of Debtor's obligations to Secured Party hereunder and
under any other agreements under which Debtor has or may hereafter have
obligations to Secured Party. Debtor will ensure that such security interest
will be and remain a sole and valid first lien security interest subject only to
the lien of current taxes and assessment not in default but only if such taxes
are entitled to priority as a matter of law.
2. DEBTOR'S OBLIGATIONS. The obligations of Debtor under this Agreement
respecting an Item of Equipment, except the obligation to pay installment
payments with respect thereto which will commence as set forth in Paragraph 3
below, commence upon the grant to Secured Party of a security interest in the
Item. Debtor's obligations hereunder with respect to an Item of Equipment and
Secured Party's security interest therein will continue until payment of all
amounts due, and performance of all terms and conditions required hereunder
provided, however, that if this Agreement is in default said obligations and
security interest will continue during the continuance of said default. Upon
termination of Secured Party's security interest in an Item of Equipment,
Secured Party will execute such release of interest with respect thereto as
Debtor reasonably requests.
3. INSTALLMENT PAYMENTS AND OTHER PAYMENTS. Debtor will repay advances Secured
Party makes on account of the Equipment in installment payments in the amounts
and at the times set forth in the Schedules, whether or not Secured Party has
rendered an invoice therefor, at the office of Secured Party set forth at the
foot hereof, or to such person and/or at such other place as Secured Party may
from time to time designate by notice to Debtor. Any other amounts required to
be paid Secured Party by Debtor hereunder are due upon Debtor's receipt of
Secured Party's invoice therefor and will be payable as directed in the invoice.
Payments under this Agreement may be applied to Debtor's then accrued
obligations to Secured Party in such order as Secured Party may choose.
4. NET AGREEMENT; NO OFFSET, SURVIVAL. This Agreement is a net agreement, and
Debtor will not be entitled to any abatement of installment payments or other
payments due hereunder or any reduction thereof under any circumstance or for
any reason whatsoever. Debtor hereby waives any and all existing and future
claims, as offsets, against any installment payments or other payments due
hereunder and agrees to pay the installment payments and other amounts due
hereunder as and when due regardless of any offset or claim which may be
asserted by Debtor or on its behalf. The obligations and liabilities of Debtor
hereunder will survive the termination of the Agreement.
5. FINANCING AGREEMENT. THIS AGREEMENT IS SOLELY A FINANCING AGREEMENT. DEBTOR
ACKNOWLEDGES THAT THE EQUIPMENT HAS OR WILL HAVE BEEN SELECTED AND ACQUIRED
SOLELY BY DEBTOR FOR DEBTOR'S PURPOSES, THAT SECURED PARTY IS NOT AND WILL NOT
BE THE VENDOR OF ANY
<PAGE> 2
TREGA BIOSCIENCES, INC.
EQUIPMENT FINANCING AGREEMENT NUMBER 10818
PAGE 2 OF 8
EQUIPMENT AND THAT SECURED PARTY HAS NOT MADE AND WILL NOT MAKE ANY AGREEMENT,
REPRESENTATION OR WARRANTY WITH RESPECT TO THE MERCHANTABILITY, CONDITION,
QUALIFICATION OR FITNESS FOR A PARTICULAR PURPOSE OR VALUE OF THE EQUIPMENT OR
ANY OTHER MATTER WITH RESPECT THERETO IN ANY RESPECT WHATSOEVER.
6. NO AGENCY. DEBTOR ACKNOWLEDGES THAT NO AGENT OF THE MANUFACTURER OR OTHER
SUPPLIER OF AN ITEM OF EQUIPMENT OR OF ANY FINANCIAL INTERMEDIARY IN CONNECTION
WITH THIS AGREEMENT IS AN AGENT OF SECURED PARTY. SECURED PARTY IS NOT BOUND BY
A REPRESENTATION OF ANY SUCH PARTY AND, AS CONTEMPLATED IN PARAGRAPH 27 BELOW,
THE ENTIRE AGREEMENT OF SECURED PARTY AND DEBTOR CONCERNING THE FINANCING OF THE
EQUIPMENT IS CONTAINED IN THIS AGREEMENT AS IT MAY BE AMENDED ONLY AS PROVIDED
IN THAT PARAGRAPH.
7. ACCEPTANCE. Execution by Debtor and Secured Party of a Schedule covering the
Equipment or any Items thereof will conclusively establish that such Equipment
has been included under and will be subject to all the terms and conditions of
this Agreement. If Debtor has not furnished Secured Party with an executed
Schedule by the earlier of fourteen (14) days after receipt thereof or
expiration of the commitment period set forth in the applicable Equipment
Financing Agreement, Secured Party may terminate its obligation to advance funds
as to the applicable Equipment.
8. LOCATION; INSPECTION; USE. Debtor will keep, or in the case of motor
vehicles, permanently garage and not remove from the United States, as
appropriate, each Item of Equipment in Debtor's possession and control at the
Equipment Location designated in the applicable Schedule, or at such other
location to which such Item may have been moved with the prior written consent
of Secured Party. Whenever requested by Secured Party, Debtor will advise
Secured Party as to the exact location of an Item of Equipment. Secured Party
will have the right to inspect the Equipment and observe its use during normal
business hours, subject to Debtor's security procedures and to enter into and
upon the premises where the Equipment may be located for such purpose. The
Equipment will at all times be used solely for commercial or business purposes
and operated in a careful and proper manner and in compliance with all
applicable laws, ordinances, rules and regulations, all conditions and
requirements of the policy or policies of insurance required to be carried by
Debtor under the terms of this Agreement and all manufacturer's instructions and
warranty requirements. Any modifications or additions to the Equipment required
by any such governmental edict or insurance policy will be promptly made by
Debtor.
9. ALTERATIONS; SECURITY INTEREST COVERAGE. Without the prior written consent of
Secured Party, Debtor will not make any alterations, additions or improvements
to any Item of Equipment which detract from its economic value or functional
utility, except as may be required pursuant to Paragraph 8 above. Secured
Party's security interest in the Equipment will include all modifications and
additions thereto and replacements and substitutions therefor, in whole or in
part. Such reference to replacements and substitutions will not grant Debtor
greater rights to replace or substitute than are provided in Paragraph 11 below
or as may be allowed upon the prior written consent of Secured Party.
10. MAINTENANCE: Debtor will maintain the Equipment in good repair, condition
and working order. Debtor will also cause each Item of Equipment for which a
service contract is generally available to be covered by such a contract which
provides coverages typical to property of the type involved and is issued by a
competent servicing entity.
11. LOSS AND DAMAGE; CASUALTY VALUE. In the event of the loss of, theft of,
requisition of, damage to or destruction of an Item of Equipment ("Casualty
Occurrence"), Debtor will give Secured Party prompt notice thereof and will
thereafter place such Item in good repair,
<PAGE> 3
TREGA BIOSCIENCES, INC.
EQUIPMENT FINANCING AGREEMENT NUMBER 10818
PAGE 3 OF 8
condition and working order, provided, however, that if such Item is determined
by Secured Party to be lost, stolen, destroyed or damaged beyond repair, is
requisitioned or suffers a constructive total loss as defined in any applicable
insurance policy carried by Debtor in accordance with Paragraph 14 below,
Debtor, at Secured Party's option, will (a) replace such Item with like
Equipment in good repair, condition and working order whereupon such replacement
equipment will be deemed such Item for all purposes hereof or (b) pay Secured
Party the "Casualty Value" of such Item which will equal the total of (i) all
installment payments and other amounts due from Debtor to Secured Party at the
time of such payment and (ii) future installment payments due with respect to
such Item with each such payment including any final uneven payment discounted
at a rate equal to the discount rate of the Federal Reserve Bank of San
Francisco from the date due to the date of such payment.
Upon such replacement or payment, as appropriate, this Agreement and Secured
Party's security interest will terminate with, and only with, respect to the
Item of Equipment so replaced or as to which such payment is made in accordance
with Paragraph 2 above.
12. TITLING; REGISTRATION. Each item of Equipment subject to title registration
laws will at all times be titled and/or registered by Debtor as Secured Party's
agent and attorney-in-fact with full power and authority to register (but
without power to affect title to) the Equipment in such manner and in such
jurisdiction or jurisdictions as Secured Party directs. Debtor will promptly
notify Secured Party of any necessary or advisable retitling and/or
reregistration of an Item of Equipment in a jurisdiction other than the one in
which such Item is then titled and/or registered. Any and all documents of title
will be furnished or caused to be furnished Secured Party by Debtor within sixty
(60) days of the date any titling or registering or restating or reregistering,
as appropriate, is directed by Secured Party.
13. TAXES. Debtor will make all filings as to and pay when due all personal
property and other ad valorem taxes and all other taxes, fees, charges and
assessments based on the ownership or use of the Equipment and will pay as
directed by Secured Party or reimburse Secured Party for all other taxes,
including, but not limited to, gross receipt taxes (exclusive of federal and
state taxes based on Secured Party's net income, unless such net income taxes
are in substitution for or relieve Debtor from any taxes which Debtor would
otherwise be obligated to pay under the terms of this Paragraph 13), fees,
charges and assessments whatsoever, however designated, whether based on the
installment payments or other amounts due hereunder, levied, assessed or imposed
upon the Equipment or otherwise related hereto or to the Equipment, now or
hereafter levied, assessed or imposed under the authority of a federal, state,
or local taxing jurisdiction, regardless of when and by whom payable. Filings
with respect to such other amounts will, at Secured Party's option, be made by
Secured Party or by Debtor as directed by Secured Party.
14. INSURANCE. Debtor will procure and continuously maintain all risk insurance
against loss or damage to the Equipment from any cause whatsoever for not less
than the full replacement value thereof naming Secured Party as Loss Payee. Such
insurance must be in a form and with companies approved by Secured Party, must
provide at least thirty (30) days advance written notice to Secured Party of
cancellation, change or modification in any term, condition, or amount of
protection provided therein, must provide full breach of warranty protection and
must provide that the coverage is "primary coverage" (does not require
contribution from any other applicable coverage). Debtor will provide Secured
Party with an original policy or certificate evidencing such insurance. In the
event of an assignment of this Agreement of which Debtor has notice, Debtor will
cause such insurance to provide the same protection to the assignee as its
interests may appear. The proceeds of such insurance, at the option of the
Secured Party or such assignee, as appropriate, will be applied toward (a)
repair or replacement of the appropriate Item or Items of Equipment, (b) payment
of the Casualty Value thereof and/or (c) payment of, or as provision for,
satisfaction of any other accrued obligations of Debtor hereunder. Debtor hereby
appoints Secured Party as Debtor's attorney-in-fact with full power and
authority to do all things, including, but not limited to, making claims,
receiving payments and endorsing documents, checks or drafts, necessary to
secure payments due under any policy contemplated hereby on account of a
Casualty
<PAGE> 4
TREGA BIOSCIENCES, INC.
EQUIPMENT FINANCING AGREEMENT NUMBER 10818
PAGE 4 OF 8
Occurrence. Debtor and Secured Party contemplate that the jurisdictions where
the Equipment will be located will not impose any liability upon Secured Party
for personal injury and/or property damage resulting out of the possession, use,
operation or condition of the Equipment. In the event Secured Party determines
that such is not or may not be the case with respect to a given jurisdiction,
Debtor will provide Secured Party with public liability and property damage
coverage applicable to the Equipment in such amounts and in such form as Secured
Party requires.
15. SECURED PARTY'S PAYMENT. If Debtor fails to pay any amounts due hereunder or
to perform any of its other obligations under this Agreement, Secured Party may,
at its option, but without any obligation to do so, pay such amounts or perform
such obligations, and Debtor will reimburse Secured Party the amount of such
payment or cost of such performance, plus interest at 1.5% per month.
16. INDEMNITY. Debtor does hereby assume liability for and does agree to
indemnify, defend, protect, save and keep harmless Secured Party from and
against any and all liabilities, losses, damages, penalties, claims, actions,
suits, costs, expenses and disbursements, including court costs and legal
expenses, of whatever kind and nature, imposed on, incurred by or asserted
against Secured Party (whether or not also indemnified against by any other
person) in any way relating to or arising out of this Agreement or the
manufacture, financing, ownership, delivery, possession, use, operation,
condition or disposition of the Equipment by Secured Party or Debtor, including,
without limitation, any claim alleging latent and other defects, whether or not
discoverable by Secured Party or Debtor, and any other claim arising out of
strict liability in tort, whether or not in either instance relating to an event
occurring while Debtor remains obligated under this Agreement, and any claim for
patent, trademark or copyright infringement. Debtor agrees to give Secured Party
and Secured Party agrees to give Debtor notice of any claim or liability hereby
indemnified against promptly following learning thereof.
17. DEFAULT. Any of the following will constitute an event of default hereunder:
(a) Debtor's failure to pay when due any installment payment or other amount due
hereunder, which failure continues for ten (10) days after the due date thereof;
(b) Debtor's default in performing any other obligation, term or condition of
this Agreement or any other agreement between Debtor and Secured Party or
default under any further agreement providing security for the performance by
Debtor of its obligations hereunder provided such default has continued for more
than twenty (20) days, except as provided in (c) and (d) hereinbelow, or,
without limiting the generality of subparagraph (l) hereinbelow, default under
any lease or any mortgage or other instrument contemplating the provision of
financial accommodation applicable to the real property where an Item of
Equipment is located; (c) any writ or order of attachment or execution or other
legal process being levied on or charged against any Item of Equipment and not
being released or satisfied within ten (10) days; (d) Debtor's failure to comply
with its obligations under Paragraph 14 above or any transfer by Debtor in
violation of Paragraph 21 below; (e) a non-appealable judgment for the payment
of money in excess of $100,000 being rendered by a court of record against
Debtor which Debtor does not discharge or make provision for discharge in
accordance with the terms thereof within ninety (90) days from the date of entry
thereof; (f) death or judicial declaration of incompetency of Debtor, if an
individual; (g) the filing by Debtor of a petition under the Bankruptcy Code or
any amendment thereto or under any other insolvency law or law providing for the
relief of debtors, including, without limitation, a petition for reorganization,
arrangement or extension, or the commission by Debtor of an act of bankruptcy;
(h) the filing against Debtor of any such petition not dismissed or permanently
stayed within thirty (30) days of the filing thereof; (i) the voluntary or
involuntary making of an assignment of substantial portion of its assets by
Debtor for the benefit of creditors, appointment of a receiver or trustee for
Debtor or for any of Debtor's assets, institution by or against Debtor or any
other type of insolvency proceeding (under the Bankruptcy Code or otherwise) or
of any formal or informal proceeding for dissolution, liquidation, settlement of
claims against or winding up of the affairs of Debtor, Debtor's cessation of
business activities or the making by Debtor of a transfer of all or a material
portion of Debtor's assets or inventory not in the ordinary course of business;
(j) the occurrence of any event described in parts (e), (f), (g), (h) or (i)
hereinabove with respect to any guarantor or
<PAGE> 5
TREGA BIOSCIENCES, INC.
EQUIPMENT FINANCING AGREEMENT NUMBER 10818
PAGE 5 OF 8
other party liable for payment or performance of this Agreement; (k) any
certificate, statement, representation, warranty or audit heretofore or
hereafter furnished with respect hereto by or on behalf of Debtor or any
guarantor or other party liable for payment or performance of this Agreement
proving to have been false in any material respect at the time as of which the
facts therein set forth were stated or certified or having omitted any
substantial contingent or unliquidated liability or claim against Debtor or any
such guarantor or other party; (l) breach by Debtor of any lease or other
agreement providing financial accommodation under which Debtor or its property
is bound; or (m) a transfer of effective control of Debtor, if an organization.
18. REMEDIES. Upon the occurrence of an event of default, Secured Party will
have the rights, options, duties and remedies of a Secured Party, and Debtor
will have the rights and duties of a debtor, under the Uniform Commercial Code
(regardless of whether such Code or a law similar thereto has been enacted in a
jurisdiction wherein the rights or remedies are asserted) and, without limiting
the foregoing, Secured Party may exercise any one or more of the following
remedies: (a) declare the Casualty Value or such lesser amount as may be set by
law immediately due and payable with respect to any or all Items of Equipment
without notice or demand to Debtor; (b) sue from time to time for and recover
all installment payments and other payments then accrued and which accrue during
the pendency of such action with respect to any or all Items of Equipment; (c)
take possession of and, if deemed appropriate, render unusable any or all Items
of Equipment, without demand or notice, wherever same may be located, without
any court order or other process of law and without liability for any damages
occasioned by such taking of possession and remove, keep and store the same or
use and operate or lease the same until sold; (d) require Debtor to assemble any
or all Items of Equipment at the Equipment Location therefor, or at such
location to which such Equipment may have been moved with the written consent of
Secured Party or such other location in reasonable proximity to either of the
foregoing as Secured Party designates; (e) upon ten (10) days notice to Debtor
or such other notice as may be required by law, sell or otherwise dispose of any
Item of Equipment, whether or not in Secured Party's possession, in a
commercially reasonable manner at public or private sale at any place deemed
appropriate and apply the new proceeds of such sale, after deducting all costs
of such sale, including, but not limited to, costs of transportation,
repossession, storage, refurbishing, advertising and brokers' fees, to the
obligations of Debtor to Secured Party hereunder or otherwise, with Debtor
remaining liable for any deficiency and with any excess being returned to
Debtor; (f) upon thirty (30) days notice to Debtor, retain any repossessed or
assembled Items of Equipment as Secured Party's own property in full
satisfaction of Debtor's liability for the installment payments due hereunder
with respect thereto, provided that Debtor will have the right to redeem such
Items by payment in full of its obligations to Secured Party hereunder or
otherwise or to require Secured Party to sell or otherwise dispose of such Items
in the manner set forth in subparagraph (e) hereinabove upon notice to Secured
Party within such thirty (30) day period; or (g) utilize any other remedy
available to Secured Party under the Uniform Commercial Code or similar
provision of law or otherwise at law or in equity.
No right or remedy conferred herein is exclusive of any other right or remedy
conferred herein or by law; but all such remedies are cumulative of every other
right or remedy conferred hereunder or at law or in equity, by statute or
otherwise, and may be exercised concurrently or separately from time to time.
Any sale contemplated by subparagraph (e) of this Paragraph 18 may be adjourned
from time to time by announcement at the time and place appointed for such sale,
or for any such adjourned sale, without further published notice, Secured Party
may bid and become the purchaser at any such sale. Any sale of an Item of
Equipment, whether under said subparagraph or by virtue of judicial proceedings,
will operate to divest all right, title, interest, claim and demand whatsoever;
either at law or in equity, of Debtor in and to said item and will be a
perpetual bar to any claim against such Item, both at law and in equity, against
Debtor and all persons claiming by, through or under Debtor.
19. DISCONTINUANCE OF REMEDIES. If Secured Party proceeds to enforce any right
under this Agreement and such proceedings are discontinued or abandoned for any
reason or are
<PAGE> 6
TREGA BIOSCIENCES, INC.
EQUIPMENT FINANCING AGREEMENT NUMBER 10818
PAGE 6 OF 8
determined adversely, then and in every such case Debtor and Secured Party will
be restored to their former positions and rights hereunder.
20. SECURED PARTY'S EXPENSES. Debtor will pay Secured Party all costs and
expenses, including attorney's fees and court costs and sales costs not offset
against sales proceeds under Paragraph 18 above, incurred by Secured Party in
exercising any of its rights or remedies hereunder or enforcing any of the
terms, conditions or provisions hereof. This obligation includes the payment or
reimbursement of all such amounts whether an action is ultimately filed and
whether an action is ultimately dismissed.
21. ASSIGNMENT. Without the prior written consent of Secured Party, Debtor will
not sell, lease, pledge or hypothecate, except as provided in this Agreement,
any Item of Equipment or any interest therein or assign, transfer, pledge, or
hypothecate this Agreement or any interest in this Agreement or permit the
Equipment to be subject to any lien, charge or encumbrance of any nature except
the security interest of Secured Party contemplated hereby. Debtor's interest
herein is not assignable and will not be assigned or transferred by operation of
law. Consent to any of the foregoing prohibited acts applies only in the given
instance and is not a consent to any subsequent like act by Debtor or any other
person.
All rights of Secured Party hereunder may be assigned, pledged, mortgaged,
transferred or otherwise disposed of, either in whole or in part, without notice
to Debtor but always, however, subject to the rights of Debtor under this
Agreement. If Debtor is given notice of any such assignment, Debtor will
acknowledge receipt thereof in writing. In the event Secured Party assigns this
Agreement or the installment payments due or to become due hereunder or any
other interest herein, whether as security for any of its indebtedness or
otherwise, no breach or default by Secured Party hereunder or pursuant to any
other agreement between Secured Party and Debtor, should there be one, will
excuse performance by Debtor of any provision hereof, it being understood that
in the event of such default or breach by Secured Party that Debtor will pursue
any rights on account thereof solely against Secured Party. No such assignee,
unless such assignee agrees in writing, will be obligated to perform any duty,
covenant or condition required to be performed by Secured Party in connection
with this Agreement.
Subject always to the foregoing, this Agreement inures to the benefit of, and is
binding upon, the heirs, legatees, personal representative, successors and
assigns of the parties hereto.
22. MARKINGS; PERSONAL PROPERTY. If Secured Party supplies Debtor with labels,
plates, decals or other markings stating that Secured Party has an interest in
the Equipment, Debtor will affix and keep the same prominently displayed on the
Equipment or will otherwise mark the Equipment or its then location or
locations, as appropriate, at Secured Party's request to indicate Secured
Party's security interest in the Equipment. The Equipment is, and at all times
will remain, personal property notwithstanding that the Equipment or any Item
thereof may now be, or hereafter become, in any manner affixed or attached to,
or embedded in, or permanently resting upon real property or any improvement
thereof or attached in any manner to what is permanent as by means of cement,
plaster, nails, bolts, screws or otherwise. If requested by Secured Party,
Debtor will obtain and deliver to Secured Party waivers of interest or liens in
recordable form satisfactory to Secured Party from all persons claiming any
interest in the real property on which an Item of Equipment is or is to be
installed or located.
23. LATE CHARGES. Time is of the essence in this Agreement and if any
Installment Payment is not paid within ten (10) days after the due date thereof,
Secured Party shall have the right to add and collect, and Debtor agrees to pay:
(a) a late charge on and in addition to, such Installment Payment equal to five
percent (5%) of such Installment Payment or a lesser amount if established by
any state or federal statute applicable thereto, and (b) interest on such
Installment Payment from thirty (30) days after the due date until paid at the
highest contract rate enforceable against Debtor under applicable law but never
to exceed eighteen percent (18%) per annum.
<PAGE> 7
TREGA BIOSCIENCES, INC.
EQUIPMENT FINANCING AGREEMENT NUMBER 10818
PAGE 7 OF 8
24. NON-WAIVER. No covenant or condition of this Agreement can be waived except
by the written consent of Secured Party. Forbearance or indulgence by Secured
Party in regard to any breach hereunder will not constitute a waiver of the
related covenant or condition to be performed by Debtor.
25. ADDITIONAL DOCUMENTS. In connection with and in order to perfect and
evidence the security interest in the Equipment granted Secured Party hereunder
Debtor will execute and deliver to Secured Party such financing statements and
similar documents as Secured Party requests. Debtor authorizes Secured Party
where permitted by law to make filings of such financing statements without
Debtor's signature. Debtor further will furnish Secured Party (a) on a timely
basis, Debtor's future financial statements, including Debtor's most recent
annual report, balance sheet and income statement, prepared in accordance with
generally accepted accounting principles, which reports, Debtor warrants, shall
fully and fairly represent the true financial condition of Debtor (b) any other
information normally provided by Debtor to the public and (c) such other
financial data or information relative to this Agreement and the Equipment,
including, without limitation, copies of vendor proposals and purchase orders
and agreements, listings of serial numbers or other identification data and
confirmations of such information, as Secured Party may from time to time
reasonably request. Debtor will procure and/or execute, have executed,
acknowledge, have acknowledged, deliver to Secured Party, record and file such
other documents and showings as Secured Party deems necessary or desirable to
protect its interest in and rights under this Agreement and interest in the
Equipment. Debtor will pay as directed by Secured Party or reimburse Secured
Party for all filing, search, title report, legal and other fees incurred by
Secured Party in connection with any documents to be provided by Debtor pursuant
to this Paragraph or Paragraph 22 and any further similar documents Secured
Party may procure.
26. DEBTOR'S WARRANTIES. Debtor certifies and warrants that the financial data
and other information which Debtor has submitted, or will submit, to Secured
Party in connection with this Agreement is, or will be at time of delivery, as
appropriate, a true and complete statement of the matters therein contained.
Debtor further certifies and warrants: (a) this Agreement has been duly
authorized by Debtor and when executed and delivered by the person signing on
behalf of Debtor below will constitute the legal, valid and binding obligation,
contract and agreement of Debtor enforceable against Debtor in accordance with
its respective terms; (b) this Agreement and each and every showing provided by
or on behalf of Debtor in connection herewith may be relied upon by Secured
Party in accordance with the terms thereof notwithstanding the failure of Debtor
or other applicable party to ensure proper attestation thereto, whether by
absence of a seal or acknowledgment or otherwise; (c) Debtor has the right,
power and authority to grant a security interest in the Equipment to Secured
Party for the uses and purposes herein set forth and (d) each Item of Equipment
will, at the time such Item becomes subject hereto, be in good repair, condition
and working order.
27. ENTIRE AGREEMENT. This instrument with exhibits and related documentation
constitutes the entire agreement between Secured Party and Debtor and will not
be amended, altered or changed except by a written agreement signed by the
parties.
28. NOTICES. Notices under this Agreement must be in writing and must be mailed
by United States mail, certified mail with return receipt requested, duly
addressed, with postage prepaid, to the party involved at its respective address
set forth at the foot hereof or at such other address as each party may provide
on notice to the other from time to time. Notices will be effective when
deposited. Each party will promptly notify the other of any change in that
party's address.
29. GENDER, NUMBER: JOINT AND SEVERAL LIABILITY. Whenever the context of this
Agreement requires, the neuter gender includes the feminine or masculine and the
singular number includes the plural; and whenever the words "Secured Party" are
used herein, they include all assignees of Secured Party, it being understood
that specific reference to "assignee" in
<PAGE> 8
TREGA BIOSCIENCES, INC.
EQUIPMENT FINANCING AGREEMENT NUMBER 10818
PAGE 8 OF 8
Paragraph 14 above is for further emphasis. If there is more than one Debtor
named in this Agreement, the liability of each will be joint and several.
30. TITLES. The titles to the Paragraphs of this Agreement are solely for the
convenience of the parties and are not an aid in the interpretation of the
instrument.
31. GOVERNING LAW; VENUE. This Agreement will be governed by and construed in
accordance with the laws of the State of California. Venue for any action
related to the Agreement will be in an appropriate court in San Mateo County,
California, to which Debtor consents, or in another court selected by Secured
Party which has jurisdiction over the parties. In the event any provision hereof
is declared invalid, such provision will be deemed severable from the remaining
provisions of this Agreement, which will remain in full force and effect.
32. TIME. Time is of the essence of this Agreement and for each and all of its
provisions.
In WITNESS WHEREOF, the undersigned have executed this Agreement as of
September 19, 1997.
DEBTOR:
TREGA BIOSCIENCES, INC.
3550 General Atomics Court
San Diego, CA 92121
By: /s/ Robert S. Whitehead
--------------------------------
Title: President & Chief Executive Officer
--------------------------------
SECURED PARTY:
LEASE MANAGEMENT SERVICES, INC.
2500 Sand Hill Road, Suite 101
Menlo Park, CA 94025
By: /s/ Barbara B. Kaiser
--------------------------------
Title: EVP/ General Manager
--------------------------------
<PAGE> 9
ADDENDUM TO EQUIPMENT FINANCING AGREEMENT
NUMBER 10818
BETWEEN TREGA BIOSCIENCES, INC ,("DEBTOR")
AND LEASE MANAGEMENT SERVICES, INC. ("SECURED PARTY")
The printed form of Equipment Financing Agreement #10818 between the parties
dated September 19th, 1997 is amended as follows:
1. In Section 1, line 12, after "Debtor will" insert "use its best efforts to".
2. In Section 2, line 9, after "execute" insert "promptly".
3. In Section 8, line 2, after "United States," insert "other than related to
travel in the ordinary course of business".
4. In Section 8, line 6, after the second occurrence of "Secured Party" insert
"upon reasonable notice".
5. In Section 8, line 9, after "purpose" insert "; provided, however, that such
inspection and observation shall not disrupt Debtor's normal business
operations.".
6. In Section 9, line 5, after "all" insert "permanent".
7. In Section 10, delete the entire section and replace with "Debtor, at its
sole expense, shall keep Equipment in good condition and working order and
furnish all labor, parts, and supplies required therefor. Debtor agrees to
subscribe to a servicing contract from the vendor or a competent servicing
entity in those cases where an on-going service contract is reasonable necessary
to maintain the economic value or functional utility of the Equipment. Debtor
agrees to maintain accurate and complete records of all repairs and maintenance
to any piece of equipment with an original purchase price of greater than
$50,000.".
8. In Section 11, line 2, after "theft of," delete "requisition of,".
9. Section 11, line 4, after "such Item is" insert "reasonably".
10. Section 11, line 5, after "beyond repair," delete "is requisitioned".
11. Section 11, line 7, after "Paragraph 14 below," insert "Secured Party shall
first consult with Debtor and then".
12. Section 11, line 11, after "Secured Party" insert "with respect to such
item".
13. Section 12, line 4, after "Secured Party" insert "reasonably".
14. Section 13, line 11, before "Filings with respect to" insert "The foregoing
obligations shall not be construed to affect Debtor's right to contest such
taxes, fees, charges and assessments.".
15. Section 14, line 4, after "companies" insert "reasonably".
16. Section 16, line 4, after "court costs and" insert "reasonable".
17. Section 17, clause (a), after "ten (10)" insert "business".
18. Section 17, clause (b), after "(20) days" insert "and Debtor has received
notice from Secured Party.".
19. In Section 17, line 8, before "default" insert "uncured".
<PAGE> 10
PAGE 2 OF 2
20. In Section 17, line 12, after "twenty (20) days" insert "of notice
thereof;".
21. In Section 17, clause (e), after "thereof" insert "on appeal therefrom".
22. In section 17, delete clause (f).
23. In section 17, clause (l), before "breach" insert "uncured".
24. In section 17, clause (m), at the beginning of the clause insert ""Subject
to Section 21,".
25. Section 21, line 1, after "Secured Party" insert "which shall not
unreasonably be withheld".
26. Section 21, line 6, after "assignable" insert "except as expressly set forth
herein".
27. Section 21, paragraph 2, line 8 after "provision hereof" insert "to such
assignee,".
28. Section 21, paragraph 2, last sentence, after "this Agreement" insert ";
provided, however, that Secured Party has retained such obligations.".
29. In Section 21, after paragraph 3, add a new paragraph: "In the event of a
proposed statutory merger of the Debtor into another corporation or a proposed
sale or transfer by the Debtor of all or substantially all of its assets to a
third party business entity, then, provided that (i) the Debtor is not in
default under this Agreement or under any other agreement or Equipment Financing
Agreement between Debtor and Secured Party, (ii) the Secured Party or its
assignee has been given sufficient advance notice of the proposed merger, sale,
or transfer together with the necessary background as to the legal status,
financial and credit worthiness of the proposed surviving corporation, purchaser
or transferee (collectively, a "Transferee") and the Secured Party or its
assignee has approved such financial credit worthiness of the Transferee in
accordance with its then existing credit criteria, the Secured Party agrees that
it will not unreasonably withhold its consent to any such transfer or assignment
of this Agreement (and the transfer of the Equipment to such Transferee)
provided, further, that (a) the said Transferee assumes all of the Debtor's
obligations under this Agreement in form satisfactory to Secured Party or its
assignee (without releasing the Debtor), (b) the Secured Party is assured that
its first perfected security interest in the Equipment will continue in full
force and effect and the Transferee executes such UCC Financing Statements as
may be necessary to accomplish the same and (c) the Secured Party is assured
that the Equipment will be adequately covered by insurance during any move
thereof.".
30. In Section 24, line 1, after "Agreement" insert "applicable to Debtor".
31. In Section 25, line 3, after "Secured Party" insert "reasonably".
32. In Section 25, line 15, after "deems" insert "reasonably".
33. In Section 25, line 17, before "filing" insert "reasonable".
34. In Section 26, clause (a) at the end of the clause after "respective terms"
insert "except to the extent affected by the application of the laws of
bankruptcy and insolvency or equitable remedies affecting the rights of
creditors generally;".
IN WITNESS THEREOF, the undersigned have executed this Addendum this 19th day
of September, 1997.
DEBTOR SECURED PARTY:
TREGA BIOSCIENCES, INC. LEASE MANAGEMENT SERVICES, INC.
By: /s/ Robert S. Whitehead By: /s/ Barbara B. Kaiser
-------------------------------- --------------------------------
Title: President & Chief Exec. Officer Title: EVP/GM
----------------------------- -----------------------------
<PAGE> 1
EXHIBIT 10.3
PROMISSORY NOTE
$100,000 June 12, 1997
FOR VALUE RECEIVED, the undersigned (the "Maker") hereby promises to pay on
or before June 11, 2001 to the order of Trega Biosciences, Inc., (the "Payee")
at its principal offices currently located at 3550 General Atomics Court, San
Diego, California 92121, the principal amount of One Hundred Thousand Dollars
($100,000), together with interest on the unpaid principal balance thereof from
the date hereof at prime plus one percent (1.0%) per annum simple interest,
subject to the terms and conditions hereinafter provided. The interest rate
shall be determined for each quarter in which interest is to be paid based on
the prime rate at the Bank of America on the first business day of each calendar
quarter in which that payment is due.
Payent of this Note shall be made in lawful money of the United States of
America at the Office of the Payee. Interest shall be payable quarterly with the
first interest payment due three months from the date hereof and additional
interest payments due on the same date of each three month period thereafter
until this note, including all interest and principal is paid in full. Payment
of principal and accrued interest may be made at any time without penalty.
The Maker waives presentment, demand for payment, notice of dishonor,
notice of protest, and all other notices or demands in connection with delivery,
acceptance, performance, default, endorsement or guarantee of this Note.
The principal balance shall be forgiven to the extent hereinafter provided.
So long as maker remains an employee of Payee pursuant to that certain Executive
Employment Agreement date as of August 16, 1993, by and between Maker and Payee
("Employment Agreement"), the amount of One- Hundred Thousand Dollars ($100,000)
of the unpaid principal balance shall be forgiven each quarter commencing on the
last day of a period ending three (3) months from the date hereof and continuing
quarterly on the last day of each successive three-month period thereafter until
either the loan is totally forgiven or the total amount of the forgiveness and
principal paid in lawful money equals the original principal amount of this
Note.
This Note is unsecured on the date hereof; however, Maker agrees that
immediately at such time as Maker may acquire Common or Preferred shares of
stock in Payee either through the exercise of stock options or otherwise, Payee
shall pledge some of all of such shares to Payee as collateral for this Note. If
the shared are not publicly traded on a stock exchange or through NASDA at the
time of acquisition by Maker, all such shares acquired by Maker shall be
pledged. If the shares are publicly traded at the time of acquisition by Maker,
the minimum number os hared required to be pledged shall have a fair market
value (as determined by the average of the last trading price of said stock as
reported by NASDAQ or the stock exchange on which the Payee's shares are traded
for the ten (10) business days immediately receding the date of the pledge)
equal to at least one hundred fifty percent (150%) of the outstanding prinicpal;
balance on he pledge date. Maker agrees he shall execute any and all documents
as are reasonably required by Payee to effectuate the intended pledges as set
forth herein
-1-
<PAGE> 2
The entire unpaid and unforgiven principal balance plus accrued interest
shall become due and payable ten (10) days from the date Maker ceases to be an
employee of Payee under the Employment Agreement and immediately due and payable
upon the occurrence of any one of the following events of default:
1. Any principal or interest under this Note shall not be paid when due;
or,
2. Maker files a petition in bankruptcy, makes a general assignment for
the benefit of creditors, or commits any act of bankruptcy; or
3. Any proceeding of an insolvency nature is commenced against the Maker
and such proceedings is not dismissed within thirty (30) days
thereafter; or
4. Any collateral which is securing this Note is attached, seized,
subjected to write, levied upon or comes within the possession of any
receiver, trustee, custodian or assignee for the benefit of creditors;
or
5. Any notice of lien, levy or assessment is filed or recorded with
respect to any collateral which is securing this Note by any federal,
state, county, local or other governmental agency unless Maker is
contesting, or for so long as Maker continues to contest, such notice.
The liability of Maker hereunder shall be unconditional and shall not be in
any manner affected by any indulgence whatsoever granted or consented to by the
Payee including, without limitation, any extension of time, renewal, waiver or
other modification. Any failure of the Payee to exercise any right hereunder
shall not be construed as a waiver of the right to exercise the same or of any
other right at any time and from time to time. The Maker hereby irrevocably
submits to the jurisdiction of the state courts of the State of California for
the purpose of any suit, action or other proceeding arising out of this Note.
In the event this Note shall not be promptly paid when due, the Maker shall
pay all costs of enforcement and collection of the Note, including without
limitation reasonable attorney's fees, expenses and court costs incurred in
instituting legal action.
Any provisions of this Note which may prove unenforceable under any law
shall not affect the validity or enforceability of any other provision hereof.
This Note may be assigned, transferred or pledged without the consent of
the Maker. In the event this Note is assigned, transferred or pledged, the Maker
hereby waives, as against such transferee, assignee or pledgee, any defenses and
counterclaims of every kind that the Maker may have against the Payee.
-2-
<PAGE> 3
This note shall be governed by and construed in accordance with the laws of the
State of California as such laws are applied to contracts entered into and to be
performed entirely within California.
/s/ Robert S. Whitehead
-----------------------------------
Robert S. Whitehead
Approved by:
/s/ James C. Blair
- -----------------------------------
James C. Blair
Chairman of the Board
/s/ Harry D. Lambert
- -----------------------------------
Harry D. Lambert
Director and
Member, Compensation Committee
-3-
<PAGE> 1
EXHIBIT 10.4
PROMISSORY NOTE
$75,000 San Diego, California
September 18, 1997
FOR VALUE RECEIVED, Lawrence D. Muschek, Ph.D. ("Payor") promises to pay
TREGA BIOSCIENCES, INC., a Delaware corporation ("Payee"), at 3550 General
Atomics Court, San Diego, CA 92121, or such other place as holder hereof may
from time to time direct in writing, the principal sum of Seventy Five Thousand
Dollars ($75,000), together with interest on the outstanding principal balance
at the rate of 9.50 percent per annum from the date of this Promissory Note
until paid in full. Payor shall pay principal and interest due under this
Promissory Note in accordance with Schedule A attached hereto and incorporated
herein by reference. If Payor fails to pay all principal and interest due under
this Promissory Note on or before the Maturity Date, interest on the outstanding
unpaid principal balance shall accrue at the lesser of twelve percent (12%) per
annum or the maximum rate permitted by law from the Maturity Date until the
Promissory Note is paid in full.
The Maturity Date shall be the earliest of:
a) thirty (30) days following the date the employment of Lawrence D. Muschek,
Ph.D. is terminated for any reason;
b) ten (10) days following notice from Payee to Payor of the breach of any
representation or warranty contained herein, if such breach is not cured
before the end of such ten (10) day period; or
c) November 19, 1997
Payor may prepay amounts due under this Promissory Note at any time without
penalty. Principal and interest shall be due and payable in lawful money of the
United States of America. If any action is taken to enforce or interpret this
Promissory Note the prevailing party shall be entitled to collect reasonable
attorney's fees and costs. Payor and all endorsers, guarantors, sureties and
accommodation parties hereof, and all other persons liable for all or any part
of the indebtedness evidenced by this Promissory Note, without affecting their
liability, hereby: (a) waive diligence, presentment, protest and demand; (b)
waive notice of protest; demand and nonpayment, dishonor or of maturity; (c)
consent to any extension or alteration of the time or terms of payment hereof,
and any and all renewals, extension or modification of the terms hereof, any
release of all or any part of
<PAGE> 2
the security given for the payment hereof (if any), any acceptance of additional
security of any kind, and any release of or resort to any person liable for the
payment hereof, which such renewals, extension or modifications may be made
without notice to any said persons; and (d) waive to the fullest extent
permitted by law, the running of any statue of limitations which may otherwise
serve as a defense to the payment of the indebtedness evidenced by this
Promissory Note.
IN WITNESS WHEREOF, the Payor has executed this Promissory Note to be effective
as of the date first above written.
PAYOR
BY: /s/ Lawrence D. Muschek
--------------------------------
Lawrence D. Muschek, Ph.D.
DATE: September 19, 1997
------------------------------
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM CONSOLIDATED
BALANCE SHEET AT SEPTEMBER 30, 1997 AND CONSOLIDATED STATEMENT OF OPERATIONS FOR
THE NINE MONTHS ENDED SEPTEMBER 30, 1997 AND IS QUALIFIED IN ITS ENTIRETY BY
REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> SEP-30-1997
<CASH> 6,580
<SECURITIES> 15,894
<RECEIVABLES> 528
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 23,719
<PP&E> 4,835
<DEPRECIATION> 2,240
<TOTAL-ASSETS> 28,744
<CURRENT-LIABILITIES> 7,532
<BONDS> 0
<COMMON> 14
0
0
<OTHER-SE> 18,311
<TOTAL-LIABILITY-AND-EQUITY> 28,744
<SALES> 430
<TOTAL-REVENUES> 5,381
<CGS> 341
<TOTAL-COSTS> 341
<OTHER-EXPENSES> 14,345
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 138
<INCOME-PRETAX> (7,021)
<INCOME-TAX> 0
<INCOME-CONTINUING> (7,021)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (7,021)
<EPS-PRIMARY> (0.52)
<EPS-DILUTED> (0.52)
</TABLE>
