<PAGE>
U. S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-QSB
(MARK ONE)
/X/ QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended December 31, 1996
/ / TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from to .
Commission File Number 000-21141
PHARMAPRINT INC.
(Exact name of registrant as specified in its charter)
CALIFORNIA 33-0640125
(State or jurisdiction of incorporation (I.R.S. employer identification No.)
or organization)
4 PARK PLAZA, SUITE 1900, IRVINE, CALIFORNIA 92614
(Address of principal executive officers) (Zip code)
REGISTRANTS TELEPHONE NUMBER, INCLUDING AREA CODE: (714) 655-7778
5 PARK PLAZA, SUITE 770, IRVINE, CALIFORNIA 92614
(Former address)
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 / /
Number of shares outstanding as of February 12, 1997: Common Stock: 11,000,000
Total number of pages: 14
<PAGE>
PHARMAPRINT INC.
INDEX
<TABLE>
<CAPTION>
Page
<S> <C>
FACING SHEET.................................................................. 1
INDEX......................................................................... 2
PART I. FINANCIAL INFORMATION
Item 1. Balance Sheet as of December 31, 1996 (unaudited)................ 3
Statements of Operations for the three months ended December 31,
1995 and 1996, for the nine months ended December 31, 1995 and
1996, and for the period from inception (September 15, 1994)
through December 31, 1996 (unaudited)............................ 4
Statements of Cash Flows for the nine months ended December 31,
1995 and 1996, and for the period from inception (September 15,
1994) through December 31, 1996 (unaudited)..................... 5
Notes to Financial Statements (unaudited)........................ 7
Item 2. Plan of Operation................................................. 11
PART II. OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K................................... 13
SIGNATURES..................................................................... 14
</TABLE>
-2-
<PAGE>
PHARMAPRINT INC.
(A development stage company)
BALANCE SHEET - DECEMBER 31, 1996
(Unaudited)
ASSETS
CURRENT ASSETS:
Cash and cash equivalents............................... $ 9,761,943
Prepaid research services............................... 35,333
Other................................................... 73,127
-----------
Total current assets.................................. 9,870,403
OTHER ASSETS, net of accumulated depreciation and
amortization of $10,955................................. 412,012
-----------
Total assets.......................................... $10,282,415
===========
LIABILITIES AND SHAREHOLDERS' EQUITY
CURRENT LIABILITIES:
Due to the University of Southern California............ $ 282,000
Accounts payable........................................ 207,136
Other accrued expenses.................................. 124,250
-----------
Total current liabilities............................... 613,386
-----------
COMMITMENTS AND CONTINGENCIES
SHAREHOLDERS' EQUITY:
Preferred stock, $.001 par value - 1,000,000 shares
authorized, no shares issued or outstanding .......... --
Common stock, without par value - 19,000,000 shares
authorized, 11,000,000 shares issued and outstanding.. 23,212,731
Additional paid in capital............................. 1,028,335
Deferred compensation.................................. (3,697,173)
Stock subscription receivable.......................... (6,600)
Deficit accumulated during the development stage....... (10,868,264)
-----------
Total shareholders' equity........................... 9,669,029
-----------
Total liabilities and shareholders' equity........... $10,282,415
===========
The accompanying notes are an integral part of these financial statements
-3-
<PAGE>
PHARMAPRINT INC.
(A development stage company)
STATEMENTS OF OPERATIONS
(Unaudited)
<TABLE>
<CAPTION>
PERIOD FROM
INCEPTION
(SEPTEMBER
THREE MONTHS THREE MONTHS NINE MONTHS NINE MONTHS 14, 1994)
ENDED ENDED ENDED ENDED THROUGH
DECEMBER 31, DECEMBER 31, DECEMBER 31, DECEMBER 31, DECEMBER 31,
1995 1996 1995 1996 1996
------------ ------------- ------------ ------------- --------------
<S> <C> <C> <C> <C> <C>
REVENUES.................... $ -- $ -- $ -- $ -- $ --
EXPENSES:
Research & development.... 123,500 706,500 277,372 1,492,995 2,258,329
General & administrative.. 402,022 1,321,578 561,642 7,547,075 8,609,935
------------ ------------- ------------ ------------- --------------
525,522 2,028,078 839,014 9,040,070 10,868,264
------------ ------------- ------------ ------------- --------------
LOSS FROM OPERATIONS........ (525,522) (2,028,078) (839,014) (9,040,070) (10,868,264)
------------ ------------- ------------ ------------- --------------
NET LOSS.................... $ (525,522) $ (2,028,078) $ (839,014) $ (9,040,070) $ (10,868,264)
============ ============= ============ ============= ==============
LOSS PER SHARE.............. $ (.06) $ (.18) $ (.10) $ (.93) $ (1.27)
============ ============= ============ ============= ==============
WEIGHTED AVERAGE
SHARES AND EQUIVALENT
SHARES OUTSTANDING.......... 8,223,072 11,223,072 8,223,072 9,772,163 8,577,801
============ ============= ============ ============= ==============
</TABLE>
The accompanying notes are an integral part of these financial statements
-4-
<PAGE>
PHARMAPRINT INC.
(A development stage company)
STATEMENTS OF CASH FLOWS
(Unaudited)
<TABLE>
<CAPTION>
NINE MONTHS NINE MONTHS PERIOD FROM INCEPTION
ENDED ENDED (SEPTEMBER 15, 1994)
DECEMBER 31, DECEMBER 31, THROUGH DECEMBER 31,
1995 1996 1996
------------ ------------- --------------------
<S> <C> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net loss................................................. $ (839,014) $(9,040,070) $(10,868,264)
Adjustments to reconcile net loss to net cash
used in operating activities:
Amortization of discount on notes payable................ --- 31,250 31,250
Fair value of stock issued for technology
licensing rights......................................... --- --- 315,789
Fair value of stock and options issued as compensation... 176,250 5,024,062 5,327,812
Decrease (increase) in prepaid research services......... 50,000 53,000 (35,333)
(Increase) decrease in deferred offering costs........... (44,696) 94,203 ---
Increase in other current assets......................... (1,667) (43,885) (73,127)
Increase in other assets, net............................ (16,426) (299,688) (353,774)
Increase in amount due to USC............................ 80,000 106,000 282,000
Increase in accounts payable and accrued expenses........ 214,031 210,344 331,386
------------ ------------- --------------------
Net cash used in operating activities.................... (381,522) (3,864,784) (5,042,261)
------------ ------------- --------------------
CASH FLOWS FROM INVESTING ACTIVITIES:
Purchase of equipment.................................... --- (58,238) (58,238)
------------ ------------- --------------------
CASH FLOWS FROM FINANCING ACTIVITIES:
Net proceeds from issuance of common stock............... --- 12,945,225 14,547,442
Proceeds from stock subscription receivable.............. 315,000 100,000 315,000
Repayment of notes payable............................... --- (250,000) ---
------------ ------------- --------------------
Net cash provided by financing activities................ 315,000 12,795,225 14,862,442
------------ ------------- --------------------
NET (DECREASE) INCREASE IN CASH AND CASH EQUIVALENTS..... (66,522) 8,872,203 9,761,943
CASH AND CASH EQUIVALENTS, beginning of period........... 130,387 889,740 ---
------------ ------------- --------------------
CASH AND CASH EQUIVALENTS, end of period................. $ 63,865 $ 9,761,943 $ 9,761,943
============ ============= ====================
</TABLE>
The accompanying notes are an integral part of these financial statements
-5-
<PAGE>
PHARMAPRINT INC.
(A development stage company)
STATEMENTS OF CASH FLOWS (continued)
(Unaudited)
SUPPLEMENTAL SCHEDULE OF NON-CASH INVESTING AND FINANCING ACTIVITIES:
In March of 1995, the Company entered into a license agreement with the
University of Southern California (USC) whereby the Company issued 328,563
shares of common stock valued at $315,789 (based upon third party
transactions) to USC in exchange for certain technology licensing rights as
defined in the agreement.
In March of 1996, the Company issued debt with detachable warrants to an
individual. This resulted in the debt being discounted by $31,250. As of
December 31, 1996, this discount has been fully amortized.
In accordance with the terms of a service agreement, 624,270 shares of
restricted common stock that were previously issued to Dimension Memory,
Inc., the employer of Robert Burgess, the Company's Executive Vice President
and Chief Operating Officer, vested upon the successful completion of the
Company's initial public offering in August 1996. As a result, during the
nine month period ended December 31, 1996, the Company recorded compensation
expense of $3,000,000 related to the vesting of this stock.
In May 1996, Tasneem Khwaja, the Company's Chairman, contributed
1,425,416 shares of common stock as a capital contribution and the Company
canceled stock options to purchase an aggregate of 1,425,416 shares of common
stock to Elliot P. Friedman, the Company's President and Chief Executive
Officer, and Dimension Memory, Inc. In May 1996, the Company issued to each
of Mr. Friedman and Dimension Memory, Inc. 712,708 shares of common stock,
such shares issued to Mr. Friedman will be transferred to Mr. Khwaja in the
event that the Company does not receive FDA approval for one of its compounds
or meet certain financial objectives, as defined. The Company recorded
approximately $382,000 and $3,697,000 of deferred compensation relating to
the shares issued to Mr. Friedman during the three and nine months ended
December 31, 1996, respectively and recorded $1,585,000 of compensation
expense relating to the shares issued to Dimension Memory, Inc. during the
nine month period ended December 31, 1996.
During the nine months ended December 31, 1996, the Company granted
certain stock options to employees at an exercise price below the estimated
fair value of the Company's common stock on the date of the grant and stock
options were granted at fair market value to a consultant of the Company. As
a result, compensation expense of $257,500 was recorded and included in
general and administrative expenses and additional paid-in capital during the
nine month period ended December 31, 1996.
In December 1996, the Company's Chairman agreed to transfer 75,000
shares of his common stock to a third party for services rendered. As a
result of this agreement, compensation expense of $389,000 was recorded and
included in general and administrative expenses and additional paid-in
capital during the nine month period ended December 31, 1996.
The accompanying notes are an integral part of these financial statements
-6-
<PAGE>
PHARMAPRINT, INC.
(A development stage company)
NOTES TO FINANCIAL STATEMENTS
(unaudited)
1. BASIS OF PRESENTATION
The unaudited financial statements and related notes have been prepared
pursuant to the rules and regulations of the Securities and Exchange
Commission. Accordingly, certain information and footnote disclosures
normally included in the financial statements prepared in accordance with
generally accepted accounting principles have not been presented. The
accompanying unaudited financial statements and related notes should be read
in conjunction with the financial statements and related notes included in
the PharmaPrint Inc. (the "Company") Prospectus dated August 14, 1996.
In the opinion of the Company, all material adjustments (consisting of normal
recurring items) considered necessary to present fairly the Company's
financial condition, results of operations, and changes in financial position
have been made. The results of operations for the three and nine month
periods ended December 31, 1996 are not necessarily indicative of the results
that may be expected for the year ending March 31, 1997.
2. NATURE OF BUSINESS AND SUMMARY OF SIGNIFICANT RISK FACTORS
The Company develops and manufactures pharmaceutical versions of natural
medicines to be used in the treatment of various diseases. The Company's
technology for standardizing the manufacture of natural medicines into
pharmaceuticals is referred to as PharmaPrinting-TM-. The
PharmaPrinting-TM- technology is designed to enable the Company to precisely
describe the identity and quantity of each active component in the natural
medicine, measure each component's bioactivity and effectiveness, and
together with the results of pre-clinical and clinical trials provide the
information necessary to seek United States Food and Drug Administration
(FDA) approval for each pharmaceutical version of the natural medicine. The
initial science underlying this technology was developed in the laboratories
of the University of Southern California (USC) School of Medicine by Dr.
Tasneem A. Khwaja, a founder and major shareholder of the Company. The
Company was incorporated in the state of California on September 15, 1994
under the name ABT Global Pharmaceutical Corp. Effective October 30, 1996,
the Company changed its name to PharmaPrint Inc.
The Company has a limited operating history with no revenues. Management's
efforts to date have focused primarily in securing patents, raising capital,
developing and testing pharmaceutical versions of natural medicines, and
seeking corporate partners to assist in the financing of the development of
such natural medicines; as such, the Company is subject to the risks and
uncertainties associated with a new business.
-7-
<PAGE>
PHARMAPRINT, INC.
(A development stage company)
NOTES TO FINANCIAL STATEMENTS (continued)
(unaudited)
The success of the Company's future operations is dependent, in part, upon
the Company's ability to (i) develop commercially feasible technologies or
products, (ii) obtain approval from the FDA or equivalent regulatory agencies
overseas, (iii) utilize its proprietary PharmaPrinting-TM- technology to
obtain corporate partners to assist in the financing of the development of
natural medicines, (iv) market certain new drugs and (v) obtain additional
capital. The Company's therapeutic products will be subject to regulation in
the United States by the FDA and by applicable regulatory authorities in
foreign jurisdictions.
The Company is PharmaPrinting-TM- pharmaceutical versions of Saw Palmetto
Berry, St. John's Wort, and Ginger, used to treat benign prostate
enlargement, mild to moderate depression, and motion sickness, respectively.
The Company also intends to utilize the PharmaPrinting-TM- technology to
obtain corporate partners to assist in the financing of the development of
natural medicines. The Company has begun initial clinical testing of T4GEN
to seek accelerated approval from the FDA for its initial pharmaceutical
intended to treat HIV patients However, there can be no assurance that the
Company will ever receive further regulatory approval required to test or
market its proposed products, that the regulatory authority will review the
product within the average period of time, or that the Company will
successfully obtain corporate partners. Further, no assurance can be given
that additional financing will be available when needed or upon terms
acceptable to the Company.
The Company may also continue to incur substantial operating losses over the
next several years. The amount of net losses and the time required for the
Company to reach profitability are highly uncertain. The Company's future
capital requirements will depend on many factors, including its ability to
obtain corporate partners, patent costs, the cost of clinical trials, the
length of time required to obtain FDA approval, competing technological and
market developments, changes in existing collaborative relationships, sales
and marketing arrangements, and the costs of establishing sub-contracts for
manufacturing.
The financial statements do not include any adjustments to reflect the possible
future effects on the recoverability and classification of assets or the
classification of liabilities that might result from the outcome of this
uncertainty.
3. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
A. 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 financial statements and accompanying
notes. Actual results could differ from those estimates.
-8-
<PAGE>
PHARMAPRINT, INC.
(A development stage company)
NOTES TO FINANCIAL STATEMENTS (continued)
(unaudited)
B. LOSS PER SHARE
Loss per share is computed based on the weighted average number of shares
outstanding for the period. Common equivalent shares are excluded from the
computation as their effect is antidilutive, except that, pursuant to the
Securities and Exchange Commission Staff Accounting Bulletins, common and
common equivalent shares (stock options, warrants and preferred stock) issued
during the period commencing 12 months prior to the Company's initial public
offering at prices below the public offering price have been included in the
calculation as if they were outstanding for all periods presented (using the
treasury stock method).
c. RECLASSIFICATIONS
Certain reclassifications were made to prior period amounts, enabling them to
conform to current period presentation.
4. OTHER ASSETS
In December 1996, the Company amended a Personal Services Agreement with
Dimension Memory, Inc. and Robert Burgess. The amended agreement calls for
an acceleration of all amounts due under the Personal Services Agreement in
exchange for Dimension Memory, Inc. agreeing to provide additional services
to the Company. As a result of this Agreement, in December 1996, the Company
paid Dimension Memory, Inc. $304,000 and recorded such amount as prepaid
services in the accompanying balance sheet. This amount will be amortized in
equal monthly amounts through December 31, 1998.
5. SHAREHOLDER'S EQUITY
On August 19, 1996, the Company completed an initial public offering of
3,000,000 shares of its common stock, raising net proceeds of approximately
$12,945,000.
In May 1996, Tasneem Khwaja, the Company's Chairman, contributed 1,425,416
shares of common stock as a capital contribution and the Company canceled
stock options to purchase an aggregate of 1,425,416 shares of common stock to
Elliot P. Friedman, the Company's President and Chief Executive Officer, and
Dimension Memory, Inc. In May 1996, the Company issued to each of Mr.
Friedman and Dimension Memory, Inc. 712,708 shares of common stock, such
shares issued to Mr. Friedman will be transferred to Mr. Khwaja in the event
that the Company does not receive FDA approval for one of its compounds or
meet certain financial objectives, as defined. The Company recorded
approximately $382,000 and $3,697,000 of deferred compensation relating to
the shares issued to Mr. Friedman during the three and nine months ended
December 31, 1996, respectively and recorded $1,585,000 of compensation
expense relating to the shares issued to Dimension Memory, Inc. during the
nine month period ended December 31, 1996.
-9-
<PAGE>
PHARMAPRINT, INC.
(A development stage company)
NOTES TO FINANCIAL STATEMENTS (continued)
(unaudited)
In accordance with the terms of a service agreement, 624,270 shares of
restricted common stock that were previously issued to Dimension Memory,
Inc., the employer of Robert Burgess, the Company's Executive Vice President
and Chief Operating Officer, vested upon the successful completion of the
Company's initial public offering in August 1996. As a result, during the
nine month period ended December 31, 1996, the Company recorded compensation
expense of $3,000,000 related to the vesting of this stock.
During the nine months ended December 31, 1996, the Company granted certain
stock options to employees at an exercise price below the estimated fair
value of the Company's common stock on the date of the grant and additional
stock options were granted at fair market value to a consultant of the
Company. As a result, compensation expense of $257,500 was recorded and
included in general and administrative expenses and additional paid-in
capital during the nine month period ended December 31, 1996.
In December 1996, the Company's Chairman agreed to transfer 75,000 shares of
his common stock to a third party for services rendered. As a result of this
agreement, compensation expense of $389,000 was recorded and included in
general and administrative expenses and additional paid-in capital during the
nine month period ended December 31, 1996.
6. COMMITMENTS AND CONTINGENCIES
The Company leased its corporate headquarters under an operating lease that
expired in January 1997. In January 1997, the Company moved its corporate
headquarters and entered into a new operating lease that expires in December
1998. Future minimum lease payments under this lease as of December 31,
1996, are approximately $40,000 payable through March 31, 1997, $162,000
payable for fiscal year 1998, and $131,000 payable for fiscal year, 1999.
Rent expense for the nine months ended December 31, 1996 totaled
approximately $32,000.
-10-
<PAGE>
CAUTIONARY STATEMENT FOR PURPOSES OF THE SAFE HARBOR
PROVISIONS OF THE PRIVATE SECURITIES LITIGATION
REFORM ACT OF 1995
This report may be deemed to contain "forward-looking" statements. The
Company desires to take advantage of the "safe harbor" provisions of the
Private Securities Litigation Reform Act of 1995 and is including this
statement for the express purpose of availing itself of the protections of
such safe harbor with respect to each forward-looking statement contained
herein. Examples of forward-looking statements include, but are not limited
to (a) projections of revenues, income or loss, earnings or loss per share,
capital expenditures, growth prospects, dividends, capital structure and
other financing items, (b) statements of plans and objectives of the Company
or its management or Board of Directors, including the receipt of government
regulatory approval for new products, or estimates or predictions of actions
by corporate partners, licensees, competitors or regulatory authorities, (c)
statements of future economic performance and (d) statements of assumptions
underlying other statements and statements about the Company or its business.
The Company's ability to predict projected results or to predict
responses by government regulatory authorities or other pending events is
inherently uncertain. Therefore, the Company wishes to caution each reader
of this report to carefully consider specific factors, including the inherent
uncertainty of the pharmaceutical regulatory approval process, the Company's
dependence on third parties for research and development capabilities, the
uncertainty of health care insurance programs in the United States and abroad
and the rapid technology changes to which the Company's products are subject
because such factors in some cases have affected, and in the future (together
with other factors) could affect, the ability of the Company to achieve its
projected results and may cause actual results to differ materially from
those expressed herein.
Item 2. Plan of Operation
GENERAL
To commercialize the research and technology developed over a 20 year
period at the USC School of Medicine, the Company, a development stage
company, was incorporated in California on September 15, 1994. Effective
October 30, 1996, the Company changed its name from ABT Global Pharmaceutical
Corp. to PharmaPrint Inc. In August and October of 1996, the U.S. Patent and
Trademark Office issued patents for the composition and use of pharmaceutical
versions of European Mistletoe (T4GEN) and Korean Mistletoe (n-T4GEN),
respectively. T4GEN and n-T4GEN represent a class of drugs knows as
immunodulators. In January 1997, the Company began early stage clinical
trials for T4GEN in the United Kingdom, anticipates other overseas early
stage clinical trials during the next twelve months, and the completion of
IND applications with the FDA for T4GEN during 1998. In October 1996, the
Company hired Costas Loullis as Senior Vice President of Drug Development and
in December 1996, hired James R. Wodach as Senior Vice President and Chief
Financial Officer. The Company expects to increase its staff by adding an
additional six employees during the next 12 months. The Company does not
currently anticipate that it will purchase any material amount of equipment
in the next 12 months.
-11-
<PAGE>
In addition to its efforts to develop T4GEN, the Company is
PharmaPrinting-TM- pharmaceutical versions of Saw Palmetto Berry, St. John's
Wort, and Ginger, used to treat benign prostate enlargement, mild to moderate
depression, and motion sickness, respectively. The Company is also seeking
corporate partners to assist in the financing required to develop
pharmaceutical versions of the aforementioned and other natural medicines.
However, no assurance can be given that the Company will obtain such partners
or financing.
LIQUIDITY AND CAPITAL RESOURCES
The Company has financed its operations primarily through the sale of
equity securities. From inception through December 31, 1996, the Company had
raised an aggregate net amount of approximately $2,078,000 through private
sales of equity securities. In August 1996, the Company completed an initial
public offering of 3,000,000 shares of Common Stock raising net proceeds of
approximately $12,945,000. The proceeds of the initial public offering and
cash flow from operations, if any, are expected to be sufficient to meet the
Company's working capital requirements for at least the next 12 months. To
the extent the Company's capital resources are insufficient to meet its
operating requirements, the Company will seek additional funds through equity
or debt financings, collaborative or other arrangements with corporate
partners, licensees and others. The Company has no current arrangements with
respect to, or sources of, such additional financing, and the Company does
not anticipate that existing shareholders will provide any portion of the
Company's future financing requirements. Additionally, no assurance can be
given that additional financing will be available when needed or upon terms
acceptable to the Company.
-12-
<PAGE>
Part II. Other Information
Item 6. Exhibits and Reports on Form 8-K
(a) The following exhibits are included herein:
10.8 Lease dated as of October 28, 1996
10.18 Amendment No. 1 to the Dimension Memory, Inc.
Personal Services Agreement
27.1 Financial Data Schedule
(b) No reports on Form 8-K were filed during the quarter for which
this report is filed.
-13-
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities and Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
PHARMAPRINT INC.
Registrant
Date: February 14, 1997 /s/ James R. Wodach
-------------------------
James R. Wodach
Senior Vice President and
Chief Financial Officer
-14-
<PAGE>
OFFICE SPACE LEASE
BETWEEN
THE IRVINE COMPANY
AND
ABT GLOBAL PHARMACEUTICAL CORP.
<PAGE>
ACCEPTANCE OF OFFICE SPACE
Date: December 24, 1996 Floor: 19
-------------------------------- ------------------------
Building#: Jamboree Center Suite#: 1900
--------------------------- -----------------------
Address: 4 Park Plaza Doc. Control #: 000042
----------------------------- ---------------
City: Irvine, CA Acct. #:
-------------------------------- -------------------------
I have today inspected the office space referenced above, which is leased to
ABT Global Pharmaceutical Corp., a California corporation
- -----------------------------------------------------------------------------
dba PharmaPrint, Inc.
and hereby acknowledge and agree to the following:
(a) The date of tender of possession by Landlord of this space is
December 6, 1996
--------------------------------------------------------------------
(b) Rent will commence on December 13, 1996
-----------------------------------------------
(c) The lease term will commence on December 13, 1996
-------------------------------------
and expire on December 31, 1998 and said dates
---------------------------------------
shall be inserted by the Tenant and Landlord on the Basic Lease
Provisions page of each copy of the lease.
SAID OFFICE SPACE IS SATISFACTORY AND COMPLETE AND IS HEREBY ACCEPTED SUBJECT TO
CORRECTION OF THE FOLLOWING ITEMS (IF ANY):
- --------------------------------------------------------------------------------
Punch List Items
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Balance due from Tenant for interior improvements in excess of Landlord's
Contribution:
$ To be determined, if any Received:
---------------------------------------- -----------------------------
Insurance Certificate Received: Not as of 12/24/96
-------------------------------------------------
/s/ J. R. Burgess /s/ [illegible] Gilbert
- ----------------------------------- --------------------------------------
Tenant signature Landlord representative
LANDLORD'S COPY
<PAGE>
OFFICE SPACE LEASE
THIS LEASE is made as of the 28th day of October, 1996, by and between
THE IRVINE COMPANY, a Michigan corporation, hereafter called "Landlord," and
ABT GLOBAL PHARMACEUTICAL CORP., a California corporation, hereinafter called
"Tenant."
ARTICLE 1. BASIC LEASE PROVISIONS
Each reference in this Lease to the "Basic Lease Provisions" shall
mean and refer to the following collective terms, the application of which shall
be governed by the provisions in the remaining Articles of this Lease.
1. Tenant's Trade Name: N/A
2. Premises: Suite No. 1900 (the Premises are more particularly
described in Section 2.1).
Address of Building: 4 Park Plaza, Irvine, CA 92614
Project Description (if applicable): Jamboree Center
3. Use of Premises: General Office and for no other use. In no event
shall the Premises be used for purposes substantially and directly
involved with mobile telecommunications (i.e., voice or data
transmission to, from or between mobile users of service, but
excluding one-way radio for entertainment purposes or the provision of
computer hardware or software) products and/or services marketed to
the public at large.
4. Estimated Commencement Date: November 15, 1996
5. Lease Term: Twenty-Four (24) months, plus such additional days as may
be required to cause this Lease to terminate on the final day of the
calendar month.
6. Basic Rent: Thirteen Thousand One Hundred Ninety-Eight Dollars
($13,198.00) per month.
Rental Adjustments:
Commencing on the first day of the thirteenth (13th) month of the
Lease Term, the Basic Rent shall be Fourteen Thousand Five Hundred
Fifty-One Dollars ($14,551.00) per month.
7. Property Tax Base: The Property Taxes per rentable square foot
actually incurred by Landlord during the twelve month period ending
June 30, 1997.
Building Cost Base: The Building Costs per rentable square foot
actually incurred by Landlord during the twelve month period ending
June 30, 1997.
Expense Recovery Period: Every twelve month period during the Term (or
portion thereof during the first and last Lease years) ending June 30.
8. Floor Area of Premises: approximately 6,768 rentable square feet
9. Security Deposit: $16,006.00
10. Broker(s): Seeley Company
11. Plan Approval Date: N/A
12. Parking: Fifteen (15) unreserved vehicle parking spaces.
13. Address for Payments and Notices:
LANDLORD TENANT
The Irvine Company ABT Global Pharmaceutical Corp.
c/o Tooley & Company 4 Park Plaza, Suite 1900
5 Park Plaza, Suite 100 Irvine, CA 92614
Irvine, CA 92614
Attn: Property Manager
with a copy of notices to:
THE IRVINE COMPANY
P.O. Box 6370
Newport Beach, CA 92658-6370
Attn: Vice President, Operations - Office Properties
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ARTICLE II. PREMISES
SECTION 2.1. LEASED PREMISES. Landlord leases to Tenant and Tenant
rents from Landlord the premises shown in Exhibit A (the "Premises"),
containing approximately the floor area set forth in Item 8 of the Basic
Lease Provisions and known by the suite number identified in Item 2 of the
Basic Lease Provisions. The Premises are located in the building identified
in Item 2 of the Basic Lease Provisions (which together with the underlying
real property, is called the "Building"), and is a portion of the project
described in Item 2 (the "Project"). If, upon completion of the space plans
for the Premises, Landlord's architect or space planner determines that the
rentable square footage of the Premises differs from that set forth in the
Basic Lease Provisions, then Landlord shall so notify Tenant and the Basic
Rent (as shown in Item 6 of the Basic Lease Provisions) shall be promptly
adjusted in proportion to the change in square footage. Within five (5) days
following Landlord's request, the parties shall memorialize the adjustments
by executing an amendment to this Lease prepared by Landlord.
SECTION 2.2. ACCEPTANCE OF PREMISES. Tenant acknowledges that neither
Landlord nor any representative of Landlord has made any representation or
warranty with respect to the Premises or the Building or the suitability or
fitness of either for any purpose, except as set forth in this Lease. The
taking of possession or use of the Premises by Tenant for any purpose other
than construction shall conclusively establish that the Premises and the
Building were in satisfactory condition and in conformity with the provisions
of this Lease in all respects, except for those matters which Tenant shall
have brought to Landlord's attention on a written punch list. The list shall
be limited to any items required to be accomplished by Landlord under the
Work Letter (if any) attached as Exhibit X, and shall be delivered to
Landlord within thirty (30) days after the term ("Term") of this Lease
commences as provided in Article III below. If there is no Work Letter, or
if no items are required of Landlord under the Work Letter, by taking
possession of the Premises Tenant accepts the improvements in their existing
condition, and waives any right or claim against Landlord arising out of the
condition of the Premises. Nothing contained in this Section shall affect
the commencement of the Term or the obligation of Tenant to pay rent.
Landlord shall diligently complete all punch list items of which it is
notified as provided above.
SECTION 2.3. BUILDING NAME AND ADDRESS. Tenant shall not utilize any
name selected by Landlord from time to time for the Building and/or the
Project as any part of Tenant's corporate or trade name. Landlord shall have
the right to change the name, number or designation of the Building or
Project without liability to Tenant.
ARTICLE III. TERM
SECTION 3.1. GENERAL. The Term shall be for the period shown in Item 5
of the Basic Lease Provisions. The Term shall commence ("Commencement Date")
on the earlier of (a) subject to the provisions of Section 3.2, the Estimated
Commencement Date as set forth in Item 4 of the Basic Lease Provisions, or
(b) the date Tenant commences its business activities within the Premises.
Promptly following request by Landlord, the parties shall memorialize on a
form provided by Landlord the actual Commencement Date and the expiration
date ("Expiration Date") of this Lease.
SECTION 3.2. DELAY IN POSSESSION. If Landlord, for any reason
whatsoever, cannot deliver possession of the Premises to Tenant on or before
the Estimated Commencement Date, this Lease shall not be void or voidable nor
shall Landlord be liable to Tenant for any resulting loss or damage.
However, Tenant shall not be liable for any rent and the Commencement Date
shall not occur until Landlord delivers possession of the Premises and the
Premises are in fact ready for occupancy as defined below, except that if
Landlord's failure to so deliver possession on the Estimated Commencement
Date is attributable to any action or inaction by Tenant (including without
limitation any Tenant Delay described in the Work Letter, if any, attached to
this Lease), then the Commencement Date shall not be advanced to the date on
which possession of the Premises is tendered to Tenant, and Landlord shall be
entitled to full performance by Tenant (including the payment of rent) from
the date Landlord would have been able to deliver the Premises to Tenant but
for Tenant's delay(s). The Premises shall be deemed ready for occupancy upon
the tendered date, but only if and when Landlord, to the extent applicable,
(a) has put into operation all building services essential for the use of the
Premises by Tenant, (b) has provided reasonable access to the Premises for
Tenant so that they may be used without unnecessary interference, (c) has
substantially completed all the work required to be done by Landlord in this
Lease, and (d) has obtained requisite governmental approvals to Tenant's
occupancy.
ARTICLE IV. RENT AND OPERATING EXPENSES
SECTION 4.1. BASIC RENT. From and after the Commencement Date, Tenant
shall pay to Landlord without deduction or offset a Basic Rent for the
Premises in the total amount shown (including subsequent adjustments, if any)
in Item 6 of the Basic Lease Provisions. Any rental adjustment shown in
Item 6 shall be deemed to occur on the specified monthly anniversary of the
Commencement Date, whether or not that date occurs at the end of a calendar
month. The rent shall be due and payable in advance commencing on the
Commencement Date (as prorated for any partial month) and continuing
thereafter on the first day of each successive calendar month of the Term.
No demand, notice or invoice shall be required. An installment of rent in the
amount of one (1) full month's Basic Rent at the initial rate specified in
Item 6 of the Basic Lease Provisions shall be delivered to Landlord
concurrently with Tenant's execution of this Lease and shall be applied
against the Basic Rent first due hereunder.
SECTION 4.2. OPERATING EXPENSE INCREASE.
(a) Commencing on the first day of the thirteenth month of the
Lease Term, Tenant shall compensate Landlord, as additional rent, for
Tenant's proportionate shares of "Building Costs" and "Property Taxes," as
those terms are defined below, incurred by Landlord in the operation of the
Building and Project. Property Taxes and Building Costs are mutually
exclusive and may be billed separately or in combination as determined by
Landlord. Tenant's proportionate share of Property Taxes shall equal the
product of the rentable floor area of the Premises multiplied by the
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difference of (i) Property Taxes per rentable square foot less (ii) the
Property Tax Base set forth in Item 7 of the Basic Lease Provisions.
Tenant's proportionate share of Building Costs shall equal the product of the
rentable floor area of the Premises multiplied by the difference of (i)
Building Costs per rentable square foot less (ii) the Building Cost Base set
forth in Item 7 of the Basic Lease Provisions. Tenant acknowledges
Landlord's rights to make changes or additions to the Building and/or Project
from time to time pursuant to Section 6.5 below, in which event the total
rentable square footage within the Building and/or Project may be adjusted.
For convenience of reference, Property Taxes and Building Costs may sometimes
be collectively referred to as "Operating Expenses."
(b) Commencing prior to the start of the first full "Expense
Recovery Period" of the Lease (as defined in Item 7 of the Basic Lease
Provisions), and prior to the start of each full or partial Expense Recovery
Period thereafter, Landlord shall give Tenant a written estimate of the
amount of Tenant's proportionate shares of Building Costs and Property Taxes
for the Expense Recovery Period or portion thereof. Commencing on the first
day of the thirteenth month of the Lease Term, Tenant shall pay the estimated
amounts to Landlord in equal monthly installments, in advance, with Basic
Rent. If Landlord has not furnished its written estimate for any Expense
Recovery Period by the time set forth above, Tenant shall continue to pay cost
reimbursements at the rates established for the prior Expense Recovery
Period, if any; provided that when the new estimate is delivered to Tenant,
Tenant shall, at the next monthly payment date, pay any accrued cost
reimbursements based upon the new estimate. Landlord may from time to time
change the Expense Recovery Period to reflect a calendar year or a new fiscal
year of Landlord, as applicable, in which event Tenant's share of Operating
Expenses shall be equitably prorated for any partial year.
(c) Within one hundred twenty (120) days after the end of each
Expense Recovery Period, Landlord shall furnish to Tenant a statement showing
in reasonable detail the actual or prorated Property Taxes and Building Costs
incurred by Landlord during the period, and the parties shall within thirty
(30) days thereafter make any payment or allowance necessary to adjust
Tenant's estimated payments, if any, to Tenant's actual proportionate shares
as shown by the annual statement. If Tenant has not made estimated payments
during the Expense Recovery Period, any amount owing by Tenant pursuant to
subsection (a) above shall be paid to Landlord in accordance with Article
XVI. If actual Property Taxes or Building Costs allocable to Tenant during
any Expense Recovery Period are less than the Property Tax Base or the
Building Cost Base, respectively, Landlord shall not be required to pay the
differential to Tenant. Should Tenant fail to object in writing to Landlord's
determination of actual Operating Expenses within sixty (60) days following
delivery of Landlord's expense statement, Landlord's determination of actual
Operating Expenses for the applicable Expense Recovery Period shall be
conclusive and binding on the parties.
(d) Even though the Lease has terminated and the Tenant has
vacated the Premises, when the final determination is made of Tenant's share
of Property Taxes and Building Costs for the Expense Recovery Period in which
the Lease terminates, Tenant shall upon notice pay the entire increase due
over the estimated expenses paid. Conversely, any overpayment made in the
event expenses decrease shall be rebated by Landlord to Tenant.
(e) If, at any time during any Expense Recovery Period, any
one or more of the Operating Expenses are increased to a rate(s) or amount(s) in
excess of the rate(s) or amount(s) used in calculating the estimated expenses
for the year, then Tenant's estimated share of Property Taxes or Building
Costs, as applicable, shall be increased for the month in which the increase
becomes effective and for all succeeding months by an amount equal to
Tenant's proportionate share of the increase. Landlord shall give Tenant
written notice of the amount or estimated amount of the increase, the month
in which the increase will become effective, Tenant's monthly share thereof
and the months for which the payments are due. Tenant shall pay the increase
to Landlord as a part of Tenant's monthly payments of estimated expenses as
provided in paragraph (b) above, commencing with the month in which effective.
(f) The term "Building Costs" shall include all expenses of
operation and maintenance of the Building and the Project, together with all
appurtenant Common Areas (as defined in Section 6.2), and shall include the
following charges by way of illustration but not limitation: water and sewer
charges; insurance premiums or reasonable premium equivalents should Landlord
elect to self-insure any risk that Landlord is authorized to insure hereunder;
license, permit, and inspection fees; heat; light; power; janitorial
services; repairs; air conditioning; supplies; materials; equipment; tools;
tenant services; programs instituted to comply with transportation management
requirements; amortization of capital investments reasonably intended to
produce a reduction in operating charges or energy conservation; amortization
of capital investments necessary to bring the Building into compliance with
applicable laws and building codes enacted subsequent to the completion of
construction of the Building; labor; reasonably allocated wages and salaries,
fringe benefits, and payroll taxes for administrative and other personnel
directly applicable to the Building and/or Project, including both Landlord's
personnel and outside personnel; any expense incurred pursuant to Sections
6.1, 6.2, 6.4, 7.2, and 10.2 and Exhibits B and C below; and a reasonable
overhead/management fee. It is understood that Building Costs shall include
competitive charges for direct services provided by any subsidiary or division
of Landlord. The term "Property Taxes" as used herein shall include the
following: (i) all real estate taxes or personal property taxes, as such
property taxes may be reassessed from time to time; and (ii) other taxes,
documentary transfer fees, charges and assessments which are levied with
respect to this Lease or to the Building and/or the Project, and any
improvements, fixtures and equipment and other property of Landlord located in
the Building and/or the Project, except that general net income and franchise
taxes imposed against Landlord shall be excluded; and (iii) any tax, surcharge
or assessment which shall be levied in addition to or in lieu of real estate
or personal property taxes, other than taxes covered by Article VIII; and (iv)
costs and expenses incurred in contesting the amount or validity of any
Property Tax by appropriate proceedings. A copy of Landlord's unaudited
statement of expenses shall be made available to Tenant upon request. The
Building Costs may be extrapolated by Landlord to reflect at least ninety-five
percent (95%) occupancy of the rentable area of the Building.
SECTION 4.3. SECURITY DEPOSIT. Concurrently with Tenant's delivery of
this Lease, Tenant shall deposit with Landlord the sum, if any, stated in
Item 9 of the Basic Lease Provisions (the "Security Deposit"), to be held by
Landlord as security for the full and faithful performance of Tenant's
obligations under this Lease to pay any rent as and when due, including
without limitation such additional rent as may be owing under any provision
hereof, and to maintain the Premises as required by Sections 7.1 and 15.3.
Upon any breach of those obligations by Tenant, Landlord may apply all or
part of the Security Deposit as full or partial compensation. If any portion
of the Security Deposit is so applied, Tenant shall within five (5) days
after written demand by Landlord deposit cash with Landlord in an amount
sufficient to restore the Security Deposit to its original amount. Landlord
shall not be required to keep the Security Deposit separate from its
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general funds, and Tenant shall not be entitled to interest on the Security
Deposit. If Tenant fully performs its obligations under this Lease, 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 in this Lease.
ARTICLE V. USES
SECTION 5.1. USE. Tenant shall use the Premises only for the
purposes stated in Item 3 of the Basic Lease Provisions. The parties agree
that any contrary use shall be deemed to cause material and irreparable harm
to Landlord and shall entitle Landlord to injunctive relief in addition to
any other available remedy. Tenant shall not do or permit anything to be
done in or about the Premises which will in any way interfere with the rights
or quiet enjoyment of other occupants of the Building or the Project, or use
or allow the Premises to be used for any unlawful purpose, nor shall Tenant
permit any nuisance or commit any waste in the Premises or the Project.
Tenant shall not do or permit to be done anything which will invalidate or
increase the cost of any insurance policy(ies) covering the Building, the
Project and/or their contents, and shall comply with all applicable insurance
underwriters rules and the requirements of the Pacific Fire Rating Bureau or
any other organization performing a similar function. Tenant shall comply at
its expense with all present and future laws, ordinances and requirements of
all governmental authorities that pertain to Tenant or its use of the
Premises, including without limitation all federal and state occupational
health and safety and handicap access requirements, whether or not Tenant's
compliance will necessitate expenditures or interfere with its use and
enjoyment of the Premises. Tenant shall not generate, handle, store or
dispose of hazardous or toxic materials (as such materials may be identified
in any federal, state or local law or regulation) in the Premises or Project
without the prior written consent of Landlord; provided that the foregoing
shall not be deemed to proscribe the use by Tenant of customary office
supplies in normal quantities so long as such use comports with all
applicable laws. Tenant agrees that it shall promptly complete and deliver
to Landlord any disclosure form regarding hazardous or toxic materials that
may be required by any governmental agency. Tenant shall also, from time to
time upon request by Landlord, execute such affidavits concerning Tenant's
best knowledge and belief regarding the presence of hazardous or toxic
materials in the Premises. Landlord shall have the right at any time to
perform an assessment of the environmental condition of the Premises and of
Tenant's compliance with this Section. As part of any such assessment,
Landlord shall have the right, upon reasonable prior notice to Tenant, to
enter and inspect the Premises and to perform tests, provided those tests are
performed in a manner that minimizes disruption to Tenant. Tenant will
cooperate with Landlord in connection with any assessment by, among other
things, promptly responding to inquiries and providing relevant documentation
and records. The reasonable cost of the assessment/testing shall be
reimbursed by Tenant to Landlord if such assessment/testing determines that
Tenant failed to comply with the requirements of this Section. In all events
Tenant shall indemnify Landlord in the manner elsewhere provided in this
Lease from any release of hazardous or toxic materials caused by Tenant, its
agents, employees, contractors, subtenants or licensees. The foregoing
covenants shall survive the expiration or earlier termination of this Lease.
SECTION 5.2. SIGNS. Tenant, upon obtaining the approval of Landlord
in writing, may affix a sign (restricted solely to Tenant's name as set forth
herein or such other name as Landlord may consent to in writing) adjacent to
the entry door of the Premises and shall maintain the sign in good condition
and repair during the Term. The sign shall conform to the criteria for signs
established by Landlord and shall be ordered through Landlord. Tenant shall
not place or allow to be placed any other sign, decoration or advertising
matter of any kind that is visible from the exterior of the Premises. Any
violating sign or decoration may be immediately removed by Landlord at
Tenant's expense without notice and without the removal constituting a breach
of this Lease or entitling Tenant to claim damages.
ARTICLE VI. LANDLORD SERVICES
SECTION 6.1. UTILITIES AND SERVICES. Landlord shall furnish to the
Premises the utilities and services described in Exhibit B, subject to the
conditions and payment obligations and standards set forth in this Lease.
Landlord shall not be liable for any failure to furnish any services or
utilities when the failure is the result of any accident or other cause
beyond Landlord's reasonable control, nor shall Landlord be liable for
damages resulting from power surges or any breakdown in telecommunications
facilities or services. Landlord's temporary inability to furnish any
services or utilities shall not entitle Tenant to any damages, relieve
Tenant of the obligation to pay rent or constitute a constructive or other
eviction of Tenant, except that Landlord shall diligently attempt to restore
the service or utility promptly. Tenant shall comply with all rules and
regulations which Landlord may reasonably establish for the provision of
services and utilities, and shall cooperate with all reasonable conservation
practices established by Landlord. Landlord shall at all reasonable times
have free access to all electrical and mechanical installations of Landlord.
SECTION 6.2. OPERATION AND MAINTENANCE OF COMMON AREAS. During the
Term, Landlord shall operate all Common Areas within the Building and the
Project. The term "Common Areas" shall mean all areas within the Building and
other buildings in the Project which are not held for exclusive use by persons
entitled to occupy space, and all other appurtenant areas and improvements
provided by Landlord for the common use of Landlord and tenants and their
respective employees and invitees, including without limitation parking areas
and structures, driveways, sidewalks, landscaped and planted areas, hallways
and interior stairwells not located within the premises of any tenant, common
entrances and lobbies, elevators, and restrooms not located within the
premises of any tenant.
SECTION 6.3. USE OF COMMON AREAS. The occupancy by Tenant of the
Premises shall include the use of the Common Areas in common with Landlord and
with all others for whose convenience and use the Common Areas may be provided
by Landlord, subject, however, to compliance with all rules and regulations as
are prescribed from time to time by Landlord. Landlord shall at all times
during the Term have exclusive control of the Common Areas, and may restrain any
use or occupancy, except as authorized by Landlord's rules and regulations.
Tenant shall keep the Common Areas clear of any obstruction or unauthorized use
related to Tenant's operations. Landlord may temporarily close any portion of
the Common Areas for repairs, remodeling and/or alterations, to prevent a
public dedication or the accrual of prescriptive rights, or for any other
reasonable purpose.
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SECTION 6.4. PARKING. Landlord hereby leases to Tenant, and Tenant
hereby agrees to lease from Landlord for the Term of this Lease, the number of
vehicle parking spaces set forth in Item 12 of the Basic Lease Provisions. The
parking spaces shall be provided in accordance with the provisions set forth in
Exhibit C to this Lease.
SECTION 6.5. CHANGES AND ADDITIONS BY LANDLORD. Landlord reserves the
right to make alterations or additions to the Building or the Project, or to the
attendant fixtures, equipment and Common Areas. No change shall entitle Tenant
to any abatement of rent or other claim against Landlord, provided that the
change does not deprive Tenant of reasonable access to or use of the Premises.
ARTICLE VII. MAINTAINING THE PREMISES
SECTION 7.1. TENANT'S MAINTENANCE AND REPAIR. Tenant at its sole
expense shall make all repairs necessary to keep the Premises in the condition
as existed on the Commencement Date (or on any later date that the improvements
may have been installed), excepting ordinary wear and tear. All repairs shall
be at least equal in quality to the original work, shall be made only by a
licensed, bonded contractor approved in writing in advance by Landlord and
shall be made only at the time or times approved by Landlord. Any contractor
utilized by Tenant shall be subject to Landlord's standard requirements for
contractors, as modified from time to time. Landlord may impose reasonable
restrictions and requirements with respect to repairs, as provided in Section
7.3, and the provisions of Section 7.4 shall apply to all repairs.
Alternatively, Landlord may elect to make any such repair on behalf of Tenant
and at Tenant's expense, and Tenant shall promptly reimburse Landlord as
additional rent for all costs incurred upon submission of an invoice.
SECTION 7.2. LANDLORD'S MAINTENANCE AND REPAIR.
(a) Subject to Section 7.1 and Article XI, Landlord shall provide
service, maintenance and repair with respect to any air conditioning,
ventilating or heating equipment which serves the Premises (exclusive of any
supplemental HVAC equipment installed by or at the request of Tenant) and
shall maintain in good repair the roof, foundations, footings, the exterior
surfaces of the exterior walls of the Building, and the structural,
electrical and mechanical systems, except that Tenant at its expense shall
make all repairs which Landlord deems reasonably necessary as a result of the
act or negligence of Tenant, its agents, employees, invitees, subtenants or
contractors. Landlord shall have the right to employ or designate any
reputable person or firm, including any employee or agent of Landlord or any
of Landlord's affiliates or divisions, to perform any service, repair or
maintenance function. Landlord need not make any other improvements or
repairs except as specifically required under this Lease, and nothing
contained in this Section shall limit Landlord's right to reimbursement from
Tenant for maintenance, repair costs and replacement costs as provided
elsewhere in this Lease. Tenant understands that it shall not make repairs
at Landlord's expense or by rental offset.
(b) Except as provided in Sections 11.1 and 12.1 below, there
shall be no abatement of rent and no liability of Landlord by reason of any
injury to or interference with Tenant's business arising from the making of
any repairs, alterations or improvements to any portion of the Building,
including repairs to the Premises, nor shall any related activity by Landlord
constitute an actual or constructive eviction; provided, however, that in
making repairs, alterations or improvements, Landlord shall interfere as
little as reasonably practicable with the conduct of Tenant's business in the
Premises.
SECTION 7.3. ALTERATIONS. Tenant shall make no alterations, additions
or improvements to the Premises without the prior written consent of
Landlord. Landlord's consent shall not be unreasonably withheld as long as
the proposed changes do not affect the structural, electrical or mechanical
components or systems of the Building and are not visible from the exterior of
the Premises. Landlord may impose, as a condition to its consent, any
requirements that Landlord in its discretion may deem reasonable or desirable,
including but not limited to a requirement that all work be covered by a lien
and completion bond satisfactory to Landlord and requirements as to the manner,
time, and contractor for performance of the work. Without limiting the
generality of the foregoing, Tenant shall use Landlord's designated mechanical
and electrical contractors for all work affecting the mechanical or electrical
systems of the Building. Tenant shall obtain all required permits for the work
and shall perform the work in compliance with all applicable laws, regulations
and ordinances, and Landlord shall be entitled to a supervision fee in the
amount of five percent (5%) of the cost of the work. Under no circumstances
shall Tenant make any improvement which incorporates asbestos-containing
construction materials into the Premises. Any request for Landlord's consent
shall be made in writing and shall contain architectural plans describing the
work in detail reasonably satisfactory to Landlord. Unless Landlord otherwise
agrees in writing, all alterations, additions or improvements affixed to the
Premises (excluding moveable trade fixtures and furniture) shall become the
property of Landlord and shall be surrendered with the Premises at the end of
the Term, except that Landlord may, by notice to Tenant given at the time of
Landlord's consent to the alteration or improvement, require Tenant to remove by
the Expiration Date, or sooner termination date of this Lease, all or any
alterations, decorations, fixtures, additions, improvements and the like
installed either by Tenant or by Landlord at Tenant's request and to repair
any damage to the Premises arising from that removal. Landlord may require
Tenant to remove an improvement provided as part of the initial build-out
pursuant to Exhibit X, if any, if and only if the improvement is a non-building
standard item and Tenant is notified of the requirement prior to the build-out.
Except as otherwise provided in this Lease or in any Exhibit to this Lease,
should Landlord make any alteration or improvement to the Premises at the
request of Tenant, Landlord shall be entitled to prompt reimbursement from
Tenant for all costs incurred.
SECTION 7.4. MECHANIC'S LIENS. Tenant shall keep the Premises free
from any liens arising out of any work performed, materials furnished, or
obligations incurred by or for Tenant. Upon request by Landlord, Tenant
shall promptly cause any such lien to be released by posting a bond in
accordance with California Civil Code Section 3143 or any successor statute.
In the event that Tenant shall not, within thirty (30) days following the
imposition of any lien, cause the lien to be released of record by payment or
posting of a proper bond, Landlord shall have, in addition to all other
available remedies, the right to cause the lien to be released by any means
it deems proper, including payment of or defense against the claim giving
rise to the lien. All expenses so incurred by Landlord, including Landlord's
attorneys' fees, shall be reimbursed by Tenant promptly following Landlord's
demand, together with interest from the date of payment by Landlord at the
maximum rate permitted by law until paid. Tenant shall give Landlord no less
than twenty (20) days' prior notice in writing before commencing construction
of any kind on the Premises so that Landlord may post and maintain notices of
nonresponsibility on the Premises.
SECTION 7.5. ENTRY AND INSPECTION. Landlord shall at all reasonable
times have the right to enter the Premises to inspect them, to supply services
in accordance with this Lease, to protect the interests of Landlord in the
Premises, to make repairs and renovations as reasonably deemed necessary by
Landlord, and to submit the Premises to prospective or actual purchasers or
encumbrance holders (or, during the last one hundred and eighty (180) days of
the Term or when an uncured Tenant default exists, to prospective tenants),
all without being deemed to have caused an eviction of Tenant and without
abatement of rent except as provided elsewhere in this Lease. Landlord shall
at all times
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have and retain a key which unlocks all of the doors in the Premises,
excluding Tenant's vaults and safes, and Landlord shall have the right to
use any and all means which Landlord may deem proper to open the doors in an
emergency in order to obtain entry to the Premises, and any entry to the
Premises obtained by Landlord shall not under any circumstances be deemed to
be a forcible or unlawful entry into, or a detainer of, the Premises, or any
eviction of Tenant from the Premises.
SECTION 7.6. SPACE PLANNING AND SUBSTITUTION. Landlord shall have
the right, upon providing not less than forty-five (45) days written notice,
to move Tenant to other space of comparable size in the Building or in the
Project. The new space shall be provided with improvements of comparable
quality to those within the Premises. Landlord shall pay the reasonable
out-of-pocket costs to relocate and reconnect Tenant's personal property and
equipment within the new space; provided that Landlord may elect to cause
such work to be done by its contractors. Landlord shall also reimburse
Tenant for such other reasonable out-of-pocket costs that Tenant may incur in
connection with the relocation, including without limitation necessary
stationery revisions, provided that a reasonable estimate thereof is given to
Landlord within twenty (20) days following Landlord's notice. In no event,
however, shall Landlord be obligated to incur or fund total relocation costs,
exclusive of tenant improvement expenditures, in an amount in excess of two
(2) months of Basic Rent at the rate then payable hereunder. Within ten (10)
days following request by Landlord, Tenant shall execute an amendment to this
Lease prepared by Landlord to memorialize the relocation. Should Tenant fail
timely to execute and deliver the amendment to Landlord for any reason
(including without limitation the inability of the parties to reach an
agreement on the proposed relocation), or should Tenant thereafter fail to
comply with the terms thereof, then Landlord may at its option elect to
terminate this Lease upon not less than ninety (90) days prior written notice
to Tenant. In the event of such termination, Tenant's obligation to pay
Basic Rent during the final two (2) months of the Term shall be waived. Upon
the effective date of any termination of this Lease, Tenant shall vacate the
Premises in accordance with Section 15.3.
ARTICLE VIII. TAXES AND ASSESSMENTS ON TENANT'S PROPERTY
Tenant shall be liable for and shall pay before delinquency, all
taxes and assessments levied against all personal property of Tenant located
in the Premises. When possible Tenant shall cause his personal property to
be assessed and billed separately from the real property of which the
Premises form a part. If any taxes on Tenant's personal property are levied
against Landlord or Landlord's property and if Landlord pays the same, or if
the assessed value of Landlord's property is increased by the inclusion of a
value placed upon the personal property of Tenant and if Landlord pays the
taxes based upon the increased assessment, Tenant shall pay to Landlord the
taxes so levied against Landlord or the proportion of the taxes resulting
from the increase in the assessment.
ARTICLE IX. ASSIGNMENT AND SUBLETTING
SECTION 9.1. RIGHTS OF PARTIES.
(a) Notwithstanding any provision of this Lease to the
contrary, Tenant will not, either voluntarily or by operation of law, assign,
sublet, encumber, or otherwise transfer all or any part of Tenant's interest
in this lease, or permit the Premises to be occupied by anyone other than
Tenant, without Landlord's prior written consent, which consent shall not
unreasonably be withheld in accordance with the provisions of Section
9.1.(c). No assignment (whether voluntary, involuntary or by operation of
law) and no subletting shall be valid or effective without Landlord's prior
written consent and, at Landlord's election, shall constitute a material
default of this Lease. Landlord shall not be deemed to have given its consent
to any assignment or subletting by any other course of action, including its
acceptance of any name for listing in the Building directory. To the extent
not prohibited by provisions of the Bankruptcy Code, 11 U.S.C. Section 101 et
seq. (the "Bankruptcy Code"), including Section 365(f)(1), Tenant on behalf
of itself and its creditors. administrators and assigns waives the
applicability of Section 365(e) of the Bankruptcy Code unless the proposed
assignee of the Trustee for the estate of the bankrupt meets Landlord's
standard for consent as set forth in Section 9.1(c) of this Lease. If this
Lease is assigned to any person or entity pursuant to the provisions of the
Bankruptcy Code, any and all monies or other considerations to be delivered
in connection with the assignment shall be delivered to Landlord, shall be
and remain the exclusive property of Landlord and shall not constitute
property of Tenant or of the estate of Tenant within the meaning of the
Bankruptcy Code. Any person or entity to which this Lease is assigned
pursuant to the provisions of the Bankruptcy Code shall be deemed to have
assumed all of the obligations arising under this Lease on and after the date
of the assignment, and shall upon demand execute and deliver to Landlord an
instrument confirming that assumption.
(b) If Tenant or any guarantor of Tenant (Tenant's Guarantor)
is a corporation, or is an unincorporated association or partnership, the
transfer of any stock or interest in the corporation, association or
partnership which results in a change in the voting control of Tenant or
Tenant's Guarantor, if any, shall be deemed an assignment within the meaning
and provisions of this Article. In addition, any change in the status of the
entity, such as, but not limited to, the withdrawal of a general partner,
shall be deemed an assignment within the meaning of this Article.
(c) If Tenant desires to transfer an interest in this Lease,
it shall first notify Landlord of his desire and shall submit in writing to
Landlord: (i) the name and address of the proposed transferee; (ii) the
nature of any proposed subtenant's or assignee's business to be carried on in
the Premises; (iii) the terms and provisions of any proposed sublease or
assignment; and (iv) any other information requested by Landlord and
reasonably related to the transfer. Except as provided in Subsection (d) of
this Section, Landlord shall not unreasonably withhold its consent, provided:
(1) the use of the Premises will be consistent with the provisions of this
Lease and with Landlord's commitment to other tenants of the Building and
Project; (2) seventy-five percent (75%) of any excess rent received by the
Tenant from the assignment or subletting, whether during or after the Term of
this Lease, shall be paid to Landlord when received; (3) any proposed
subtenant or assignee demonstrates that it is financially responsible by
submission to Landlord of all reasonable information as Landlord may request
concerning the proposed subtenant or assignee, including, but not limited to,
a balance sheet of the proposed subtenant or assignee as of a date within
ninety (90) days of the request for Landlord's consent and statements of
income or profit and loss of the proposed subtenant or assignee for the
two-year period preceding the request for Landlord's consent: (4) any
proposed subtenant or assignee demonstrates to Landlord's reasonable
satisfaction a record of successful experience in business; (5) the proposed
assignee or subtenant is neither an existing tenant of the Building or
Project nor a prospective tenant with whom Landlord is then actively
negotiating; and (6) the proposed transfer will not impose additional
burdens or adverse tax effects on Landlord. If Landlord consents to the
proposed transfer, Tenant may within ninety (90) days after the date of the
consent effect the transfer upon the terms described in the information
furnished to Landlord; provided that any material change in the terms shall
be subject to Landlord's consent as set forth in this Section. Landlord shall
approve or disapprove any requested transfer within thirty
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(30) days following receipt of Tenant's written request and the information
set forth above. Tenant shall pay to Landlord a transfer fee of Five Hundred
Dollars ($500.00) if and when any transfer requested by Tenant is approved.
(d) Notwithstanding the provisions of Subsection (c) above,
in lieu of consenting to a proposed assignment or subletting, Landlord may
elect to (i) sublease the Premises (or the portion proposed to be subleased),
or take an assignment of Tenant's interest in this Lease, upon the same terms
as offered to the proposed subtenant or assignee (excluding terms relating to
the purchase of personal property, the use of Tenant's name or the
continuation of Tenant's business), or (ii) terminate this Lease as to the
portion of the Premises proposed to be subleased or assigned with a
proportionate abatement in the rent payable under this Lease, effective on
the date that the proposed sublease or assignment would have become
effective. Landlord may thereafter, at its option, assign or re-let any
space so recaptured to any third party, including without limitation the
proposed transferee of Tenant.
SECTION 9.2. EFFECT OF TRANSFER. No subletting or assignment, even
with the consent of Landlord, shall relieve Tenant, or any
successor-in-interest to Tenant hereunder, of its obligation to pay rent and
to perform all its other obligations under this Lease. Moreover, Tenant
shall indemnify and hold Landlord harmless, as provided in Section 10.3, for
any act or omission by an assignee or subtenant. Each assignee, other than
Landlord, shall be deemed to assume all obligations of Tenant under this
Lease and shall be liable jointly and severally with Tenant for the payment
of all rent, and for the due performance of all of Tenant's obligations,
under this Lease. Such joint and several liability shall not be discharged
or impaired by any subsequent modification or extension of this Lease. No
transfer shall be binding on Landlord unless any document memorializing the
transfer is delivered to Landlord and both the assignee/subtenant and Tenant
deliver to Landlord an executed consent to transfer instrument prepared by
Landlord and consistent with the requirements of this Article. The
acceptance by Landlord of any payment due under this Lease from any other
person shall not be deemed to be a waiver by Landlord of any provision of
this Lease or to be a consent to any transfer. Consent by Landlord to one or
more transfers shall not operate as a waiver or estoppel to the future
enforcement by Landlord of its rights under this Lease. In addition to the
foregoing, no change in the status of Tenant or any party jointly and
severally liable with Tenant as aforesaid (e.g., by conversion to a limited
liability company or partnership) shall serve to abrogate the liability of
any person or entity for the obligations of Tenant, including any obligations
that may be incurred by Tenant after the status change by exercise of a
pre-existing right in this Lease.
SECTION 9.3. SUBLEASE REQUIREMENTS. The following terms and
conditions shall apply to any subletting by Tenant of all or any part of the
Premises and shall be included in each sublease:
(a) Tenant hereby irrevocably assigns to Landlord all of
Tenant's interest in all rentals and income arising from any sublease of the
Premises, and Landlord may collect such rent and income and apply same toward
Tenant's obligations under this Lease; provided, however, that until a
default occurs in the performance of Tenant's obligations under this Lease,
Tenant shall have the right to receive and collect the sublease rentals.
Landlord shall not, by reason of this assignment or the collection of
sublease rentals, be deemed liable to the subtenant for the performance of
any of Tenant's obligations under the sublease. Tenant hereby irrevocably
authorizes and directs any subtenant, upon receipt of a written notice from
Landlord stating that an uncured default exists in the performance of
Tenant's obligations under this Lease, to pay to Landlord all sums then and
thereafter due under the sublease. Tenant agrees that the subtenant may rely
on that notice without any duty of further inquiry and notwithstanding any
notice or claim by Tenant to the contrary. Tenant shall have no right or
claim against the subtenant or Landlord for any rentals so paid to Landlord.
In the event Landlord collects amounts from subtenants that exceed the total
amount then due from Tenant hereunder, Landlord shall promptly remit the
excess to Tenant.
(b) In the event of the termination of this Lease, Landlord
may, at his sole option, take over Tenant's entire interest in any sublease
and, upon notice from Landlord, the subtenant shall attorn to Landlord. In
no event, however, shall Landlord be liable for any previous act or omission
by Tenant under the sublease or for the return of any advance rental payments
or deposits under the sublease that have not been actually delivered to
Landlord, nor shall Landlord be bound by any sublease modification executed
without Landlord's consent or for any advance rental payment by the subtenant
in excess of one month's rent. The general provisions of this Lease, including
without limitation those pertaining to insurance and indemnification, shall be
deemed incorporated by reference into the sublease despite the termination of
this Lease.
(c) Tenant agrees that Landlord may, at his sole option,
authorize a subtenant of the Premises to cure a default by Tenant under this
Lease. Should Landlord accept such cure, the subtenant shall have a right of
reimbursement and offset from and against Tenant under the applicable
sublease.
ARTICLE X. INSURANCE AND INDEMNITY
SECTION 10.1. TENANT'S INSURANCE. Tenant, at its sole cost and
expense, shall provide and maintain in effect the insurance described in
Exhibit D. Evidence of that insurance must be delivered to Landlord prior to
the Commencement Date.
SECTION 10.2. LANDLORD'S INSURANCE. Landlord may, at its election,
provide any or all of the following types of insurance, with or without
deductible and in amounts and coverages as may be determined by Landlord in
its discretion: "all risk" property insurance, subject to standard exclusions,
covering the Building or Project, and such other risks as Landlord or its
mortgagees may from time to time deem appropriate, and commercial general
liability coverage. Landlord shall not be required to carry insurance of any
kind on Tenant's leasehold improvements, trade fixtures, furnishings,
equipment, interior plate glass, signs and all other items of personal
property, and shall not be obligated to repair or replace that property
should damage occur. All proceeds of insurance maintained by Landlord upon
the Building and Project shall be the property of Landlord, whether or not
Landlord is obligated to or elects to make any repairs.
SECTION 10.3. TENANT'S INDEMNITY. To the fullest extent permitted
by law, Tenant shall defend, indemnify and hold harmless Landlord, its
agents, lenders, and any and all affiliates of Landlord, from and against any
and all claims, liabilities, costs or expenses arising either before or after
the Commencement Date from Tenant's use or occupancy of the Premises, the
Building or the Common Areas, or from the conduct of its business, or from
any activity, work, or thing done, permitted or suffered by Tenant or its
agents, employees, subtenants, invitees or licensees in or about the Premises,
the Building or the Common Areas, or from any default in the performance of
any obligation on Tenant's part to be performed under this Lease, or from any
act or negligence of Tenant or its agents, employees, subtenants, invitees or
licensees. Landlord may, at its option, require Tenant to assume Landlord's
defense in any action covered by this Section through counsel reasonably
satisfactory to Landlord.
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SECTION 10.4. LANDLORD'S NONLIABILITY. Landlord shall not be
liable to Tenant, its employees, agents and invitees, and Tenant hereby
waives all claims against Landlord, its employees and agents for loss of or
damage to any property, or any injury to any person, or loss or interruption
of business or income, resulting from any condition including, but not
limited to, fire, explosion, falling plaster, steam, gas, electricity, water
or rain which may leak or flow from or into any part of the Premises or from
the breakage, leakage, obstruction or other defects of the pipes, sprinklers,
wires, appliances, plumbing, air conditioning, electrical works or other
fixtures in the Building, whether the damage or injury results from
conditions arising in the Premises or in other portions of the Building. It
is understood that any such condition may require the temporary evacuation or
closure of all or a portion of the Building. Should Tenant elect to receive
any service from a concessionaire, licensee or third party tenant of
Landlord, Tenant shall not seek recourse against Landlord for any breach or
liability of that service provider. Neither Landlord nor its agents shall be
liable for interference with light or other similar intangible interests.
Tenant shall immediately notify Landlord in case of fire or accident in the
Premises, the Building or the Project and of defects in any improvements or
equipment.
ARTICLE XI. DAMAGE OR DESTRUCTION
SECTION 11.1. RESTORATION.
(a) If the Building of which the Premises are a part is damaged as
the result of an event of casualty, Landlord shall repair that damage as soon
as reasonably possible unless: (i) Landlord reasonably determines that the
cost of repair would exceed ten percent (1O%) of the full replacement cost of
the Building ("Replacement Cost") and the damage is not covered by Landlord's
fire and extended coverage insurance (or by a normal extended coverage policy
should Landlord fail to carry that insurance); or (ii) Landlord reasonably
determines that the cost of repair would exceed twenty-five percent (25%)
of the Replacement Cost, or (iii) Landlord reasonably determines that the
cost of repair would exceed ten percent (10%) of the Replacement Cost and
the damage occurs during the final twelve (12) months of the Term. Should
Landlord elect not to repair the damage for one of the preceding reasons,
Landlord shall so notify Tenant in the "Casualty Notice" (as defined below),
and this Lease shall terminate as of the date of delivery of that notice.
(b) As soon as reasonably practicable following the casualty event
but not later than sixty (60) days thereafter, Landlord shall notify Tenant
in writing ("Casualty Notice") of Landlord's election, if applicable, to
terminate this Lease. If this Lease is not so terminated, the Casualty
Notice shall set forth the anticipated period for repairing the casualty
damage. If the anticipated repair period exceeds two hundred seventy (270)
days and if the damage is so extensive as to reasonably prevent Tenant's
substantial use and enjoyment of the Premises, then Tenant may elect to
terminate this Lease by written notice to Landlord within ten (10) days
following delivery of the Casualty Notice.
(c) To the extent and for the period that Landlord is entitled to
reimbursement from the proceeds of rental interruption insurance carried by
Landlord as part of Operating Expenses, the rental to be paid under this
Lease shall be abated in the same proportion that the floor area of the
Premises that is rendered unusable by the damage from time to time bears to
the total floor area of the Premises.
(d) Notwithstanding the provisions of subsections (a), (b) and (c)
of this Section, the cost of any repairs shall be borne by Tenant, and Tenant
shall not be entitled to rental abatement or termination rights, if the
damage is due to the fault or neglect of Tenant or its employees, subtenants,
invitees or representatives. In addition, the provisions of this Section
shall not be deemed to require Landlord to repair any improvements or
fixtures that Tenant is obligated to repair or insure pursuant to any other
provision of this Lease.
SECTION 11.2. LEASE GOVERNS. Tenant agrees that the provisions
of this Lease, including without limitation Section 11.1, shall govern any
damage or destruction and shall accordingly supersede any contrary statute or
rule of law.
ARTICLE XII. EMINENT DOMAIN
SECTION 12.1. TOTAL OR PARTIAL TAKING. If all or a material
portion of the Premises is taken by any lawful authority by exercise of the
right of eminent domain, or sold to prevent a taking, either Tenant or
Landlord may terminate this Lease effective as of the date possession is
required to be surrendered to the authority. In the event title to a portion
of the Building or Project, other than the Premises, is taken or sold in lieu
of taking, and if Landlord elects to restore the Building in such a way as to
alter the Premises materially, either party may terminate this Lease, by
written notice to the other party, effective on the date of vesting of title.
In the event neither party has elected to terminate this Lease as provided
above, then Landlord shall promptly, after receipt of a sufficient
condemnation award, proceed to restore the Premises to substantially their
condition prior to the taking, and a proportionate allowance shall be made to
Tenant for the rent corresponding to the time during which, and to the part
of the Premises of which, Tenant is deprived on account of the taking and
restoration. In the event of a taking, Landlord shall be entitled to the
entire amount of the condemnation award without deduction for any estate or
interest of Tenant; provided that nothing in this Section shall be deemed to
give Landlord any interest in, or prevent Tenant from seeking any award
against the taking authority for, the taking of personal property and
fixtures belonging to Tenant or for relocation or business interruption
expenses recoverable from the taking authority.
SECTION 12.2. TEMPORARY TAKING. No temporary taking of the
Premises shall terminate this Lease or give Tenant any right to abatement of
rent, and any award specifically attributable to a temporary taking of the
Premises shall belong entirely to Tenant. A temporary taking shall be deemed
to be a taking of the use or occupancy of the Premises for a period of not to
exceed ninety (90) days.
SECTION 12.3. TAKING OF PARKING AREA. In the event there shall be
a taking of the parking area such that Landlord can no longer provide
sufficient parking to comply with this Lease, Landlord may substitute
reasonably equivalent parking in a location reasonably close to the Building;
provided that if Landlord fails to make that substitution within ninety (90)
days following the taking and if the taking materially impairs Tenant's use
and enjoyment of the Premises, Tenant may, at its option, terminate this
Lease by written notice to Landlord. If this Lease is not so terminated by
Tenant, there shall be no abatement of rent and this Lease shall continue in
effect.
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ARTICLE XIII. SUBORDINATION; ESTOPPEL CERTIFICATE
SECTION 13.1. SUBORDINATION. At the option of Landlord or any of its
mortgagees/deed of trust beneficiaries, this Lease shall be either superior
or subordinate to all ground or underlying leases, mortgages and deeds of
trust, if any, which may hereafter affect the Building, and to all renewals,
modifications, consolidations, replacements and extensions thereof; provided,
that so long as Tenant is not in default under this Lease, this Lease shall
not be terminated or Tenant's quiet enjoyment of the Premises disturbed in
the event of termination of any such ground or underlying Lease, or the
foreclosure of any such mortgage or deed of trust, to which Tenant has
subordinated this Lease pursuant to this Section. In the event of a
termination or foreclosure, Tenant shall become a tenant of and attorn to the
successor-in-interest to Landlord upon the same terms and conditions as are
contained in this Lease, and shall promptly execute any instrument reasonably
required by Landlord's successor for that purpose. Tenant shall also, within
ten (10) days following written request of Landlord (or the beneficiary under
any deed of trust encumbering the Building), execute and deliver all
instruments as may be required from time to time by Landlord or such
beneficiary (including without limitation any subordination, nondisturbance
and attornment agreement in the form customarily required by such beneficiary)
to subordinate this Lease and the rights of Tenant under this Lease to any
ground or underlying lease or to the lien of any mortgage or deed of trust;
provided, however, that any such beneficiary may, by written notice to Tenant
given at any time, subordinate the lien of its deed of trust to this Lease.
Failure of Tenant to execute any statements or instruments necessary or
desirable to effectuate the provisions of this Article, within ten (10) days
after written request by Landlord, shall constitute a default under this
Lease. In that event, Landlord, in addition to any other rights or remedies
it might have, shall have the right, by written notice to Tenant, to
terminate this Lease as of a date not less than twenty (20) days after the
date of Landlord's notice. Landlord's election to terminate shall not
relieve Tenant of any liability for its default. Tenant acknowledges that
Landlord's mortgagees and successors-in-interest and all beneficiaries under
deeds of trust encumbering the Building are intended third party
beneficiaries of this Section.
SECTION 13.2. ESTOPPEL CERTIFICATE. Tenant shall, at any time upon not
less than ten (10) days prior written notice from Landlord, execute,
acknowledge and deliver to Landlord, in any form that Landlord may reasonably
require, a statement in writing in favor of Landlord and/or any prospective
purchaser or encumbrancer of the Building (i) certifying that this Lease is
unmodified and in full force and effect (or, if modified, stating the nature
of the modification and certifying that this Lease, as modified, is in full
force and effect) and the dates to which the rental, additional rent and
other charges have been paid in advance, if any, and (ii) acknowledging that,
to Tenant's knowledge, there are no uncured defaults on the part of Landlord,
or specifying each default if any are claimed, and (iii) setting forth all
further information that Landlord may reasonably require. Tenant's statement
may be relied upon by any prospective purchaser or encumbrancer of all or any
portion of the Building or Project. Tenant's failure to deliver any estoppel
statement within the provided time shall constitute a default under this
Lease and shall be conclusive upon Tenant that (i) this Lease is in full
force and effect, without modification except as may be represented by
Landlord, (ii) there are no uncured defaults in Landlord's performance, and
(iii) not more than one month's rental has been paid in advance.
ARTICLE XIV. DEFAULTS AND REMEDIES
SECTION 14.1. TENANT'S DEFAULTS. In addition to any other event of
default set forth in this Lease, the occurrence of any one or more of the
following events shall constitute a default by Tenant:
(a) The failure by Tenant to make any payment of rent or additional
rent required to be made by Tenant, as and when due, where the failure
continues for a period of three (3) days after written notice from Landlord
to Tenant; provided, however, that any such notice shall be in lieu of, and
not in addition to, any notice required under California Code of Civil
Procedure Section 1161 and 1161(a) as amended. For purposes of these default
and remedies provisions, the term "additional rent" shall be deemed to include
all amounts of any type whatsoever other than Basic Rent to be paid by Tenant
pursuant to the terms of this Lease.
(b) Assignment, sublease, encumbrance or other transfer of the
Lease by Tenant, either voluntarily or by operation of law, whether by
judgment, execution, transfer by intestacy or testacy, or other means,
without the prior written consent of Landlord.
(c) The discovery by Landlord that any financial statement provided
by Tenant, or by any affiliate, successor or guarantor of Tenant, was
materially false.
(d) The failure or inability by Tenant to observe or perform any of
the covenants or provisions of this Lease to be observed or performed by
Tenant, other than as specified in any other subsection of this Section,
where the failure continues for a period of thirty (30) days after written
notice from Landlord to Tenant; provided, however, that any such notice shall
be in lieu of, and not in addition to, any notice required under California
Code of Civil Procedure Section 1161 and 1161(a) as amended. However, if the
nature of the failure is such that more than thirty (30) days are reasonably
required for its cure, then Tenant shall not be deemed to be in default if
Tenant commences the cure within thirty (30) days, and thereafter diligently
pursues the cure to completion.
(e) (i) The making by Tenant of any general assignment for the
benefit of creditors; (ii) the filing by or against Tenant of a petition to
have Tenant adjudged a Chapter 7 debtor under the Bankruptcy Code or to have
debts discharged or a petition for reorganization or arrangement under any
law relating to bankruptcy (unless, in the case of a petition filed against
Tenant, the same is dismissed within sixty (60) days); (iii) the appointment
of a trustee or receiver to take possession of substantially all of Tenant's
assets located at the Premises or of Tenant's interest in this Lease, if
possession is not restored to Tenant within thirty (30) days; (iv) the
attachment, execution or other judicial seizure of substantially all of
Tenant's assets located at the Premises or of Tenant's interest in this
Lease, where the seizure is not discharged within thirty (30) days; or (v)
Tenant's convening of a meeting of its creditors for the purpose of effecting
a moratorium upon or composition of its debts. Landlord shall not be deemed
to have knowledge of any event described in this subsection unless
notification in writing is received by Landlord, nor shall there be any
presumption attributable to Landlord of Tenant's insolvency. In the event
that any provision of this subsection is contrary to applicable law, the
provision shall be of no force or effect.
SECTION 14.2. LANDLORD'S REMEDIES.
(a) In the event of any default by Tenant, then in addition to any
other remedies available to Landlord, Landlord may exercise the following
remedies:
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(i) Landlord may terminate Tenant's right to possession
of the Premises by any lawful means, in which case this Lease shall terminate
and Tenant shall immediately surrender possession of the Premises to
Landlord. Such termination shall not affect any accrued obligations of
Tenant under this Lease. Upon termination, Landlord shall have the right to
reenter the Premises and remove all persons and property. Landlord shall
also be entitled to recover from Tenant:
(1) The worth at the time of award of the unpaid
rent and additional rent which had been earned at the time of termination;
(2) The worth at the time of award of the amount by
which the unpaid rent and additional rent which would have been earned after
termination until the time of award exceeds the amount of such loss that
Tenant proves could have been reasonably avoided;
(3) The worth at the time of award of the amount by
which the unpaid rent and additional rent for the balance of the Term after
the time of award exceeds the amount of such loss that Tenant proves could be
reasonably avoided;
(4) Any other amount necessary to compensate
Landlord for all the detriment proximately caused by Tenant's failure to
perform its obligations under this Lease or which in the ordinary course of
things would be likely to result from Tenant's default, including, but not
limited to, the cost of recovering possession of the Premises, commissions
and other expenses of reletting, including necessary repair, renovation,
improvement and alteration of the Premises for a new tenant, the unamortized
portion of any tenant improvements and brokerage commissions funded by
Landlord in connection with this Lease, reasonable attorneys' fees, and any
other reasonable costs; and
(5) At Landlord's election, all other amounts in
addition to or in lieu of the foregoing as may be permitted by law. The
term "rent" as used in this Lease shall be deemed to mean the Basic Rent and
all other sums required to be paid by Tenant to Landlord pursuant to the
terms of this Lease. Any sum, other than Basic Rent, shall be computed on
the basis of the average monthly amount accruing during the twenty-four (24)
month period immediately prior to default, except that if it becomes necessary
to compute such rental before the twenty-four (24) month period has occurred,
then the computation shall be on the basis of the average monthly amount
during the shorter period. As used in subparagraphs (1) and (2) above, the
"worth at the time of award" shall be computed by allowing interest at the
rate of ten percent (10%) per annum. As used in subparagraph (3) above, the
"worth at the time of award" shall be computed by discounting the amount at
the discount rate of the Federal Reserve Bank of San Francisco at the time of
award plus one percent (1%).
(ii) Landlord may elect not to terminate Tenant's right to
possession of the Premises, in which event Landlord may continue to enforce
all of its rights and remedies under this Lease, including the right to
collect all rent as it becomes due. Efforts by the Landlord to maintain,
preserve or relet the Premises, or the appointment of a receiver to protect
the Landlord's interests under this Lease, shall not constitute a termination
of the Tenant's right to possession of the Premises. In the event that
Landlord elects to avail itself of the remedy provided by this subsection
(ii), Landlord shall not unreasonably withhold its consent to an assignment
or subletting of the Premises subject to the reasonable standards for
Landlord's consent as are contained in this Lease.
(b) The various rights and remedies reserved to Landlord in
this Lease or otherwise shall be cumulative and, except as otherwise provided
by California law, Landlord may pursue any or all of its rights and remedies
at the same time. No delay or omission of Landlord to exercise any right or
remedy shall be construed as a waiver of the right or remedy or of any
default by Tenant. The acceptance by Landlord of rent shall not be a (i)
waiver of any preceding breach or default by Tenant of any provision of this
Lease, other than the failure of Tenant to pay the particular rent accepted,
regardless of Landlord's knowledge of the preceding breach or default at the
time of acceptance of rent, or (ii) a waiver of Landlord's right to exercise
any remedy available to Landlord by virtue of the breach or default. The
acceptance of any payment from a debtor in possession, a trustee, a receiver
or any other person acting on behalf of Tenant or Tenant's estate shall not
waive or cure a default under Section 14.1. No payment by Tenant or receipt
by Landlord of a lesser amount than the rent required by this Lease shall be
deemed to be other than a partial payment on account of the earliest due
stipulated rent, nor shall any endorsement or statement on any check or
letter be deemed an accord and satisfaction and Landlord shall accept the
check or payment without prejudice to Landlord's right to recover the balance
of the rent or pursue any other remedy available to it. Tenant hereby waives
any right of redemption or relief from forfeiture under California Code of
Civil Procedure Section 1174 or 1179, or under any other present or future
law, in the event this Lease is terminated by reason of any default by
Tenant. No act or thing done by Landlord or Landlord's agents during the
Term shall be deemed an acceptance of a surrender of the Premises, and no
agreement to accept a surrender shall be valid unless in writing and signed
by Landlord. No employee of Landlord or of Landlord's agents shall have any
power to accept the keys to the Premises prior to the termination of this
Lease, and the delivery of the keys to any employee shall not operate as a
termination of the Lease or a surrender of the Premises.
SECTION 14.3. LATE PAYMENTS.
(a) Any rent due under this Lease that is not paid to Landlord
within five (5) days of the date when due shall bear interest at the maximum
rate permitted by law from the date due until fully paid. The payment of
interest shall not cure any default by Tenant under this Lease. In addition,
Tenant acknowledges that the late payment by Tenant to Landlord of rent will
cause Landlord to incur costs not contemplated by this Lease, the exact
amount of which will be extremely difficult and impracticable to ascertain.
Those costs may include, but are not limited to, administrative, processing
and accounting charges, and late charges which may be imposed on Landlord by
the terms of any ground lease, mortgage or trust deed covering the Premises.
Accordingly, if any rent due from Tenant shall not be received by Landlord or
Landlord's designee within five (5) days after the date due, then Tenant
shall pay to Landlord, in addition to the interest provided above, a late
charge in the amount of one hundred dollars ($100.00) for each delinquent
payment. Acceptance of a late charge by Landlord shall not constitute a
waiver of Tenant's default with respect to the overdue amount, nor shall it
prevent Landlord from exercising any of its other rights and remedies.
(b) Following each second consecutive installment of rent that
is not paid within five (5) days following notice of nonpayment from
Landlord, Landlord shall have the option (i) to require that beginning with
the first payment of rent next due, rent shall no longer be paid in monthly
installments but shall be payable quarterly three (3) months in advance
and/or (ii) to require that Tenant increase the amount, if any, of the
Security Deposit by one hundred percent (100%). Should Tenant deliver to
Landlord, at any time during the Term, two (2) or more insufficient checks,
the Landlord may require that all monies then and thereafter due from Tenant
be paid to Landlord by cashier's check.
SECTION 14.4. RIGHT OF LANDLORD TO PERFORM. All covenants and
agreements to be performed by Tenant under this Lease shall be performed at
Tenant's sole cost and expense and without any abatement of rent or
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right of set-off. If Tenant fails to pay any sum of money, or fails to
perform any other act on its part to be performed under this Lease, and the
failure continues beyond any applicable grace period set forth in Section
14.1, then in addition to any other available remedies, Landlord may, at its
election make the payment or perform the other act on Tenant's part.
Landlord's election to make the payment or perform the act on Tenant's part
shall not give rise to any responsibility of Landlord to continue making the
same or similar payments or performing the same or similar acts. Tenant
shall, promptly upon demand by Landlord, reimburse Landlord for all sums paid
by Landlord and all necessary incidental costs, together with interest at the
maximum rate permitted by law from the date of the payment by Landlord.
SECTION 14.5. DEFAULT BY LANDLORD. Landlord shall not be deemed to be
in default in the performance of any obligation under this Lease unless and
until it has failed to perform the obligation within thirty (30) days after
written notice by Tenant to Landlord specifying in reasonable detail the
nature and extent of the failure; provided, however, that if the nature of
Landlord's obligation is such that more than thirty (30) days are required
for its performance, then Landlord shall not be deemed to be in default if it
commences performance within the thirty (30) day period and thereafter
diligently pursues the cure to completion.
SECTION 14.6. EXPENSES AND LEGAL FEES. Should either Landlord or Tenant
bring any action in connection with this Lease, the prevailing party shall be
entitled to recover as a part of the action its reasonable attorneys' fees,
and all other costs. The prevailing party for the purpose of this paragraph
shall be determined by the trier of the facts.
SECTION 14.7. WAIVER OF JURY TRIAL RIGHT TO ARBITRATE.
(a) LANDLORD AND TENANT EACH ACKNOWLEDGES THAT IT IS AWARE OF
AND HAS HAD THE ADVICE OF COUNSEL OF ITS CHOICE WITH RESPECT TO ITS RIGHT TO
TRIAL BY JURY, AND EACH PARTY DOES HEREBY EXPRESSLY AND KNOWINGLY WAIVE AND
RELEASE ALL SUCH RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM BROUGHT BY EITHER PARTY HERETO AGAINST THE OTHER (AND/OR AGAINST
ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR SUBSIDIARY OR AFFILIATED
ENTITIES) ON ANY MATTERS WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED
WITH THIS LEASE, TENANT'S USE OR OCCUPANCY OF THE PREMISES, AND/OR ANY CLAIM
OF INJURY OR DAMAGE.
(b) SHOULD A DISPUTE ARISE BETWEEN THE PARTIES REGARDING ANY
MATTER DESCRIBED ABOVE, THEN EXCEPT WITH RESPECT TO ACTIONS FOR UNLAWFUL OR
FORCIBLE DETAINER EITHER PARTY MAY CAUSE THE DISPUTE TO BE SUBMITTED TO
JAMS/ENDISPUTE OR ITS SUCCESSOR ("JAMS") IN THE COUNTY IN WHICH THE BUILDING
IS SITUATED FOR BINDING ARBITRATION BEFORE A SINGLE ARBITRATOR. HOWEVER,
EACH PARTY RESERVES THE RIGHT TO SEEK A PROVISIONAL REMEDY BY JUDICIAL
ACTION. NO ARBITRATION ELECTION BY EITHER PARTY PURSUANT TO THIS SUBSECTION
SHALL BE EFFECTIVE IF MADE LATER THAN THIRTY (30) DAYS FOLLOWING SERVICE OF A
JUDICIAL SUMMONS AND COMPLAINT BY OR UPON SUCH PARTY CONCERNING THE DISPUTE.
THE ARBITRATION SHALL BE CONDUCTED IN ACCORDANCE WITH THE RULES OF PRACTICE
AND PROCEDURE OF JAMS AND OTHERWISE PURSUANT TO THE CALIFORNIA ARBITRATION
ACT (CODE OF CIVIL PROCEDURE SECTIONS 1280 ET SEQ.). NOTWITHSTANDING THE
FOREGOING, THE ARBITRATOR IS SPECIFICALLY DIRECTED TO LIMIT DISCOVERY TO THAT
WHICH IS ESSENTIAL TO THE EFFECTIVE PROSECUTION OR DEFENSE OF THE ACTION, AND
IN NO EVENT SHALL SUCH DISCOVERY BY EITHER PARTY INCLUDE MORE THAN ONE
NONEXPERT WITNESS DEPOSITION UNLESS BOTH PARTIES OTHERWISE AGREE. THE
ARBITRATOR SHALL APPORTION THE COSTS OF THE ARBITRATION, TOGETHER WITH THE
ATTORNEYS' FEES OF THE PARTIES, IN THE MANNER DEEMED EQUITABLE BY
THE ARBITRATOR, IT BEING THE INTENTION OF THE PARTIES THAT THE PREVAILING
PARTY ORDINARILY BE ENTITLED TO RECOVER ITS REASONABLE COSTS AND FEES.
JUDGMENT UPON ANY AWARD RENDERED BY THE ARBITRATOR MAY BE ENTERED BY ANY
COURT HAVING JURISDICTION.
ARTICLE XV. END OF TERM
SECTION 15.1. HOLDING OVER. This Lease shall terminate without further
notice upon the expiration of the Term, and any holding over by Tenant after
the expiration shall not constitute a renewal or extension of this Lease, or
give Tenant any rights under this Lease, except when in writing signed by
both parties. If Tenant holds over for any period after the expiration (or
earlier termination) of the Term, Landlord may, at its option, treat Tenant
as a tenant at sufferance only, commencing on the first (1st) day following
the termination of this Lease. Any hold-over by Tenant shall be subject to
all of the terms of this Lease, except that the monthly rental shall be two
hundred percent (200%) of the total monthly rental for the month immediately
preceding the date of termination, subject to Landlord's right to modify same
upon thirty (30) days notice to Tenant. If Tenant fails to surrender the
Premises upon the expiration of this Lease despite demand to do so by
Landlord, Tenant shall indemnify and hold Landlord harmless from all loss or
liability, including without limitation, any claims made by any succeeding
tenant relating to such failure to surrender. Acceptance by Landlord of
rent after the termination shall not constitute a consent to a holdover or
result in a renewal of this Lease. The foregoing provisions of this Section
are in addition to and do not affect Landlord's right of re-entry or any
other rights of Landlord under this Lease or at law.
SECTION 15.2. MERGER ON TERMINATION. The voluntary or other surrender
of this Lease by Tenant, or a mutual termination of this Lease, shall
terminate any or all existing subleases unless Landlord, at its option,
elects in writing to treat the surrender or termination as an assignment to
it of any or all subleases affecting the Premises.
SECTION 15.3. SURRENDER OF PREMISES. REMOVAL OF PROPERTY. Upon the
Expiration Date or upon any earlier termination of this Lease, Tenant shall
quit and surrender possession of the Premises to Landlord in as good order,
condition and repair as when received or as hereafter may be improved by
Landlord or Tenant, reasonable wear and tear and repairs which are Landlord's
obligation excepted, and shall, without expense to Landlord, remove or cause
to be removed all wallpapering and voice and/or data transmission cabling
installed by or for Tenant, together with all personal property and debris,
except for any items that Landlord may by written authorization allow to
remain. Tenant shall repair all damage to the Premises resulting from the
removal, which repair shall include the patching and filling of holes and
repair of structural damage, provided that Landlord may instead elect to
repair any structural damages at Tenant's expense. If Tenant shall fail to
comply with the provisions of this Section, Landlord may effect the removal
and/or make any repairs, and the cost to Landlord shall be additional rent
payable by Tenant upon demand. If requested by Landlord, Tenant shall
execute, acknowledge and deliver to Landlord an instrument in writing
releasing and quitclaiming to Landlord all rights, title and interest of
Tenant in the Premises.
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ARTICLE XVI. PAYMENTS AND NOTICES
All sums payable by Tenant to Landlord shall be paid, without
deduction or offset, in lawful money of the United States to Landlord at its
address set forth in Item 13 of the Basic Lease Provisions, or at any other
place as Landlord may designate in writing. Unless this Lease expressly
provides otherwise, as for example in the payment of rent pursuant to Section
4.1, all payments shall be due and payable within five (5) days after demand.
All payments requiring proration shall be prorated on the basis of a thirty
(30) day month and a three hundred sixty (360) day year. Any notice,
election, demand, consent, approval or other communication to be given or
other document to be delivered by either party to the other may be delivered
to the other party, at the address set forth in Item 12 of the Basic Lease
Provisions, by personal service or telegram, telecopier, or electronic
facsimile transmission, or by any courier or "overnight" express mailing
service, or may be deposited in the United States mail, postage prepaid.
Either party may, by written notice to the other, served in the manner
provided in this Article, designate a different address. If any notice or
other document is sent by mail, it shall be deemed served or delivered three
(3) business days after mailing or, if sooner, upon actual receipt. If more
than one person or entity is named as Tenant under this Lease, service of any
notice upon any one of them shall be deemed as service upon all of them.
ARTICLE XVII. RULES AND REGULATIONS
Tenant agrees to comply with the Rules and Regulations attached as
Exhibit E, and any reasonable and nondiscriminatory amendments, modifications
and/or additions as may be adopted and published by written notice to tenants
by Landlord for the safety, care, security, good order, or cleanliness of the
Premises, Building, Project and/or Common Areas. Landlord shall not be
liable to Tenant for any violation of the Rules and Regulations or the breach
of any covenant or condition in any lease or any other act or conduct by any
other tenant, and the same shall not constitute a constructive eviction
hereunder. One or more waivers by Landlord of any breach of the Rules and
Regulations by Tenant or by any other tenant(s) shall not be a waiver of any
subsequent breach of that rule or any other. Tenant's failure to keep and
observe the Rules and Regulations shall constitute a default under this
Lease. In the case of any conflict between the Rules and Regulations and
this Lease, this Lease shall be controlling.
ARTICLE XVIII. BROKER'S COMMISSION
The parties recognize as the broker(s) who negotiated this Lease
the firm(s), if any, whose name(s) is (are) stated in Item 10 of the Basic
Lease Provisions, and agree that Landlord shall be responsible for the
payment of brokerage commissions to those broker(s) unless otherwise provided
in this Lease. Each party warrants that it has had no dealings with any other
real estate broker or agent in connection with the negotiation of this Lease,
and agrees to indemnify and hold the other party harmless from any cost,
expense or liability (including reasonable attorneys' fees) for any
compensation, commissions or charges claimed by any other real estate broker
or agent employed or claiming to represent or to have been employed by the
indemnifying party in connection with the negotiation of this Lease. The
foregoing agreement shall survive the termination of this Lease.
ARTICLE XIX. TRANSFER OF LANDLORD'S INTEREST
In the event of any transfer of Landlord's interest in the
Premises, the transferor shall be automatically relieved of all obligations
on the part of Landlord accruing under this Lease from and after the date of
the transfer, provided that any funds held by the transferor in which Tenant
has an interest shall be turned over, subject to that interest, to the
transferee and Tenant is notified of the transfer as required by law. No
holder of a mortgage and/or deed of trust to which this Lease is or may be
subordinate shall be responsible in connection with the Security Deposit,
unless the mortgagee or holder of the deed of trust or the Landlord actually
receives the Security Deposit. It is intended that the covenants and
obligations contained in this Lease on the part of Landlord shall, subject to
the foregoing, be binding on Landlord, its successors and assigns, only
during and in respect to their respective successive periods of ownership.
ARTICLE XX. INTERPRETATION
SECTION 20.1. GENDER AND NUMBER. Whenever the context of this
Lease requires, the words "Landlord" and "Tenant" shall include the plural as
well as the singular, and words used in neuter, masculine or feminine genders
shall include the others.
SECTION 20.2. HEADINGS. The captions and headings of the articles
and sections of this Lease are for convenience only, are not a part of this
Lease and shall have no effect upon its construction or interpretation.
SECTION 20.3. JOINT AND SEVERAL LIABILITY. If more than one
person or entity is named as Tenant, the obligations imposed upon each shall
be joint and several and the act of or notice from, or notice or refund to,
or the signature of, any one or more of them shall be binding on all of them
with respect to the tenancy of this Lease, including, but not limited to, any
renewal, extension, termination or modification of this Lease.
SECTION 20.4. SUCCESSORS. Subject to Articles IX and XIX, all
rights and liabilities given to or imposed upon Landlord and Tenant shall
extend to and bind their respective heirs, executors, administrators,
successors and assigns. Nothing contained in this Section is intended, or
shall be construed, to grant to any person other than Landlord and Tenant and
their successors and assigns any rights or remedies under this Lease.
SECTION 20.5. TIME OF ESSENCE. Time is of the essence with
respect to the performance of every provision of this Lease in which time of
performance is a factor.
SECTION 20.6. CONTROLLING LAW. This Lease shall be governed by
and interpreted in accordance with the laws of the State of California.
SECTION 20.7. SEVERABILITY. If any term or provision of this
Lease, the deletion of which would not adversely affect the receipt of any
material benefit by either party or the deletion of which is consented to by
the party
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adversely affected, shall be held invalid or unenforceable to any extent, the
remainder of this Lease shall not be affected and each term and provision of
this Lease shall be valid and enforceable to the fullest extent permitted by
law.
SECTION 20.8. WAIVER. One or more waivers by Landlord or Tenant of
any breach of any term, covenant or condition contained in this Lease shall not
be a waiver of any subsequent breach of the same or any other term, covenant or
condition. Consent to any act by one of the parties shall not be deemed to
render unnecessary the obtaining of that party's consent to any subsequent act.
No breach of this Lease shall be deemed to have been waived unless the waiver is
in a writing signed by the waiving party.
SECTION 20.9. INABILITY TO PERFORM. In the event that either party
shall be delayed or hindered in or prevented from the performance of any work or
in performing any act required under this Lease by reason of any cause beyond
the reasonable control of that party, then the performance of the work or the
doing of the act shall be excused for the period of the delay and the time for
performance shall be extended for a period equivalent to the period of the
delay. The provisions of this Section shall not operate to excuse Tenant from
the prompt payment of rent.
SECTION 20.10. ENTIRE AGREEMENT. This Lease and its exhibits and
other attachments cover in full each and every agreement of every kind
between the parties concerning the Premises, the Building, and the Project,
and all preliminary negotiations, oral agreements, understandings and/or
practices, except those contained in this Lease, are superseded and of no
further effect. Tenant waives its rights to rely on any representations or
promises made by Landlord or others which are not contained in this Lease.
No verbal agreement or implied covenant shall be held to modify the provisions
of this Lease, any statute, law, or custom to the contrary notwithstanding.
SECTION 20.11. QUIET ENJOYMENT. Upon the observance and performance
of all the covenants, terms and conditions on Tenant's part to be observed and
performed, and subject to the other provisions of this Lease, Tenant shall
peaceably and quietly hold and enjoy the Premises for the Term without hindrance
or interruption by Landlord or any other person claiming by or through Landlord.
SECTION 20.12. SURVIVAL. All covenants of Landlord or Tenant which
reasonably would be intended to survive the expiration or sooner termination of
this Lease, including without limitation any warranty or indemnity hereunder,
shall so survive and continue to be binding upon and inure to the benefit of the
respective parties and their successors and assigns.
ARTICLE XXI. EXECUTION AND RECORDING
SECTION 21.1. COUNTERPARTS. This Lease may be executed in one or more
counterparts, each of which shall constitute an original and all of which shall
be one and the same agreement.
SECTION 21.2. CORPORATE AND PARTNERSHIP AUTHORITY. If Tenant is a
corporation or partnership, each individual executing this Lease on behalf of
the corporation or partnership represents and warrants that he is duly
authorized to execute and deliver this Lease on behalf of the corporation or
partnership, and that this Lease is binding upon the corporation or partnership
in accordance with its terms. Tenant shall, at Landlord's request, deliver a
certified copy of its board of directors' resolution or partnership agreement
or certificate authorizing or evidencing the execution of this Lease.
SECTION 21.3. EXECUTION OF LEASE; NO OPTION OR OFFER. The submission
of this Lease to Tenant shall be for examination purposes only, and shall not
constitute an offer to or option for Tenant to lease the Premises. Execution of
this Lease by Tenant and its return to Landlord shall not be binding upon
Landlord, notwithstanding any time interval, until Landlord has in fact executed
and delivered this Lease to Tenant, it being intended that this Lease shall only
become effective upon execution by Landlord and delivery of a fully executed
counterpart to Tenant.
SECTION 21.4. RECORDING. Tenant shall not record this Lease without
the prior written consent of Landlord. Tenant, upon the request of Landlord,
shall execute and acknowledge a "short form" memorandum of this Lease for
recording purposes.
SECTION 21.5. AMENDMENTS. No amendment or mutual termination of this
Lease shall be effective unless in writing signed by authorized signatories of
Tenant and Landlord, or by their respective successors in interest. No actions,
policies, oral or informal arrangements, business dealings or other course of
conduct by or between the parties shall be deemed to modify this Lease in
any respect.
ARTICLE XXII. MISCELLANEOUS
SECTION 22.1. NONDISCLOSURE OF LEASE TERMS. Tenant acknowledges and
agrees that the terms of this Lease are confidential and constitute proprietary
information of Landlord. Disclosure of the terms could adversely affect the
ability of Landlord to negotiate other leases and impair Landlord's relationship
with other tenants. Accordingly, Tenant agrees that it, and its partners,
officers, directors, employees and attorneys, shall not intentionally and
voluntarily disclose the terms and conditions of this Lease to any other tenant
or apparent prospective tenant of the Building or Project, either directly or
indirectly, without the prior written consent of Landlord, provided, however,
that Tenant may disclose the terms to prospective subtenants or assignees under
this Lease.
SECTION 22.2. REPRESENTATIONS BY TENANT. The application, financial
statements and tax returns, if any, submitted and certified to by Tenant as an
accurate representation of its financial condition have been prepared, certified
and submitted to Landlord as an inducement and consideration to Landlord to
enter into this Lease. The application and statements are represented and
warranted by Tenant to be correct and to accurately and fully reflect Tenant's
true financial condition as of the date of execution of this Lease by Tenant.
Tenant shall during the Term promptly furnish Landlord with annual financial
statements reflecting Tenant's financial condition upon written request from
Landlord.
SECTION 22.3. CHANGES REQUESTED BY LENDER. If, in connection with
obtaining financing for the Building, the lender shall request reasonable
modifications in this Lease as a condition to the financing, Tenant will not
unreasonably withhold or delay its consent, provided that the modifications
do not materially increase the obligations of Tenant or materially and
adversely affect the leasehold interest created by this Lease.
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SECTION 22.4. MORTGAGEE PROTECTION. No act or failure to act on
the part of Landlord which would otherwise entitle Tenant to be relieved of
its obligations hereunder or to terminate this Lease shall result in such a
release or termination unless (a) Tenant has given notice by registered or
certified mail to any beneficiary of a deed of trust or mortgage covering the
Building whose address has been furnished to Tenant and (b) such beneficiary
is afforded a reasonable opportunity to cure the default by Landlord,
including, if necessary to effect the cure, time to obtain possession of the
Building by power of sale or judicial foreclosure provided that such
foreclosure remedy is diligently pursued.
SECTION 22.5. DISCLOSURE STATEMENT. Tenant acknowledges that it
has read, understands and, if applicable, shall comply with the provisions of
Exhibit F to this Lease, if that Exhibit is attached.
LANDLORD: TENANT:
THE IRVINE COMPANY, ABT GLOBAL PHARMACEUTICAL CORP.,
a Michigan corporation a California corporation
By /s/ WILLIAM R. HALFORD By /s/ ROBERT J. BURGESS
---------------------------------- --------------------------------
William R. Halford, Vice President
and General Manager, Irvine Office Printed Name Robert J. Burgess
Company, a division of ----------------------
The Irvine Company
Title Chief Operating Officer
-----------------------------
By /s/ JOHN C. TSU By /s/ Illegible P. FRIEDMAN
----------------------------------- --------------------------------
John C. Tsu
Assistant Secretary Printed Name Illegible P. Friedman
----------------------
Title Chief Executive Officer
-----------------------------
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4 PARK PLAZA
NINETEENTH FLOOR
[Floor Plan]
<PAGE>
EXHIBIT B
UTILITIES AND SERVICES
The following standards for utilities and services shall be in effect
at the Building. Landlord reserves the right to adopt nondiscriminatory
modifications and additions to these standards. In the case of any conflict
between these standards and the Lease, the Lease shall be controlling. Subject
to all of the provisions of the Lease, including but not limited to the
restrictions contained in Section 6.1, the following shall apply:
1. Landlord shall furnish to the Premises during the hours of 8:00
a.m. to 6:00 p.m., Monday through Friday, and 8:00 a.m. to 1:00 p.m. on
Saturday, generally recognized national holidays and Sundays excepted,
reasonable air conditioning, heating and ventilation services. Subject to
the provisions set forth below, Landlord shall also furnish the Building with
elevator service (if applicable), reasonable amounts of electric current for
normal lighting by Landlord's standard overhead fluorescent and incandescent
fixtures and for fractional horsepower office machines, and water for
lavatory and drinking purposes. Tenant will not, without the prior written
consent of Landlord, consume electricity in the Premises at a level in excess
of 3 watts per square foot or otherwise increase the amount of electricity,
gas or water usually furnished or supplied for use of the Premises as general
office space; nor shall Tenant connect any apparatus, machine or device with
water pipes or electric current (except through existing electrical outlets
in the Premises) for the purpose of using electric current or water. This
paragraph shall at all times be subject to applicable governmental
regulations.
2. Upon written request from Tenant delivered to Landlord at
least 24 hours prior to the period for which service is requested, but during
normal business hours, Landlord will provide any of the foregoing building
services to Tenant at such times when such services are not otherwise
available. Tenant agrees to pay Landlord for those afterhour services at
rates that Landlord may establish from time to time. If Tenant requires
electric current in excess of that which Landlord is obligated to furnish
under this Exhibit B, Tenant shall first obtain the consent of Landlord, and
Landlord may cause an electric current meter to be installed in the Premises
to measure the amount of electric current consumed. The cost of
installation, maintenance and repair of the meter shall be paid for by
Tenant, and Tenant shall reimburse Landlord promptly upon demand for all
electric current consumed for any special power use as shown by the meter.
The reimbursement shall be at the rates charged for electrical power by the
local public utility furnishing the current, plus any additional expense
incurred in keeping account of the electric current consumed.
3. If any lights, machines or equipment (including without
limitation electronic data processing machines) are used by Tenant in the
Premises which materially affect the temperature otherwise maintained by the
air conditioning system, or generate substantially more heat in the Premises
than would be generated by the building standard lights and usual fractional
horsepower office equipment, Landlord shall have the right at its election to
install or modify any machinery and equipment to the extent Landlord
reasonably deems necessary to restore temperature balance. The cost of
installation, and any additional cost of operation and maintenance, shall be
paid by Tenant to Landlord promptly upon demand.
4. Landlord shall furnish water for drinking, personal hygiene
and lavatory purposes only. If Tenant requires or uses water for any
purposes in addition to ordinary drinking, cleaning and lavatory purposes,
Landlord may, in its discretion, install a water meter to measure Tenant's
water consumption. Tenant shall pay Landlord for the cost of the meter and
the cost of its installation, and for consumption throughout the duration of
Tenant's occupancy. Tenant shall keep the meter and installed equipment in
good working order and repair at Tenant's own cost and expense, in default of
which Landlord may cause the meter to be replaced or repaired at Tenant's
expense. Tenant agrees to pay for water consumed, as shown on the meter and
when bills are rendered, and on Tenant's default in making that payment
Landlord may pay the charges on behalf of Tenant. Any costs or expenses or
payments made by Landlord for any of the reasons or purposes stated above
shall be deemed to be additional rent payable by Tenant to Landlord upon
demand.
5. In the event that any utility service to the Premises is
separately metered or billed to Tenant, Tenant shall pay all charges for that
utility service to the Premises and the cost of furnishing the utility to
tenant suites shall be excluded from the Operating Expenses as to which
reimbursement from Tenant is required in the Lease. If any utility charges
are not paid when due Landlord may pay them, and any amounts paid by Landlord
shall immediately become due to Landlord from Tenant as additional rent. If
Landlord elects to furnish any utility service to the Premises, Tenant shall
purchase its requirements of that utility from Landlord as long as the rates
charged by Landlord do not exceed those which Tenant would be required to pay
if the utility service were furnished it directly by a public utility.
6. Landlord shall provide janitorial services five days per week,
equivalent to that furnished in comparable buildings, and window washing as
reasonably required; provided, however, that Tenant shall pay for any
additional or unusual janitorial services required by reason of any
nonstandard improvements in the Premises, including without limitation wall
coverings and floor coverings installed by or for Tenant, or by reason of any
use of Premises other than exclusively as offices. The cleaning services
provided by Landlord shall also exclude refrigerators, eating utensils
(plates, drinking containers and silverware), and interior glass, partitions.
Tenant shall pay to Landlord the cost of removal of any of Tenant's refuse
and rubbish, to the extent that they exceed the refuse and rubbish usually
attendant with general office usage.
7. Tenant shall have access to the Building 24 hours per day, 7
days per week, 52 weeks per year; provided that Landlord may install access
control systems as it deems advisable for the Building. Such systems may,
but need not, include full or part-time lobby supervision, the use of a
sign-in sign-out log, a card identification access system, building parking
and access pass system, closing hours procedures, access control stations,
fire stairwell exit door alarm system, electronic guard system, mobile paging
system, elevator control system or any other access controls. In the event
that Landlord elects to provide any or all of those services, Landlord may
discontinue providing them at any time with or without notice. Landlord may
impose a reasonable charge for access control cards and/or keys issued to
Tenant. Landlord shall have no liability to Tenant for the provision by
Landlord of improper access control services, for any breakdown in service,
or for the failure by Landlord to provide access control services. Tenant
further acknowledges that Landlord's access systems may be temporarily
inoperative during building emergency and system repair periods. Tenant
agrees to assume responsibility for compliance by its employees with any
regulations established by Landlord with respect to any card key access or
any other system of building access as Landlord may establish. Tenant shall
be liable to Landlord for any loss or damage resulting from its or its
employees use of any access system.
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EXHIBIT C
PARKING
The following parking regulations shall be in effect at the Building.
Landlord reserves the right to adopt reasonable, nondiscriminatory modifications
and additions to the regulations by written notice to Tenant. In the case of
any conflict between these regulations and the Lease, the Lease shall be
controlling.
1. Landlord agrees to maintain, or cause to be maintained, an
automobile parking area ("Parking Area") in reasonable proximity to the Building
for the benefit and use of the visitors and patrons and, except as otherwise
provided, employees of Tenant, and other tenants and occupants of the Building.
The Parking Area shall include, whether in a surface parking area or a parking
structure, the automobile parking stalls, driveways, entrances, exits, sidewalks
and attendant pedestrian passageways and other areas designated for parking.
Landlord shall have the right and privilege of determining the nature and extent
of the automobile Parking Area, whether it shall be surface, underground or
other structure, and of making such changes to the Parking Area from time to
time which in its opinion are desirable and for the best interests of all
persons using the Parking Area. Landlord shall keep the Parking Area in a
neat, clean and orderly condition, and shall repair any damage to its
facilities. Landlord shall not be liable for any damage to motor vehicles of
visitors or employees, for any loss of property from within those motor
vehicles, or for any injury to Tenant, its visitors or employees, unless
ultimately determined to be caused by the sole active negligence or willful
misconduct of Landlord. Unless otherwise instructed by Landlord, every parker
shall park and lock his or her own motor vehicle. Landlord shall also have the
right to establish, and from time to time amend, and to enforce against all
users of the Parking Area all reasonable rules and regulations (including the
designation of areas for employee parking) as Landlord may deem necessary and
advisable for the proper and efficient operation and maintenance of the
Parking Area. Garage managers or attendants are not authorized to make or
allow any exceptions to these regulations.
2. Landlord may, if it deems advisable in its sole discretion,
charge for parking and may establish for the Parking Area a system or systems
of permit parking for Tenant, its employees and its visitors, which may
include, but not be limited to, a system of charges against nonvalidated
parking, verification of users, a set of regulations governing different
parking violations, and an allotment of reserved or nonreserved parking
spaces based upon the charges paid and the identity of users. In no event
shall Tenant or its employees park in reserved stalls leased to other tenants
or in stalls within designated visitor parking zones. It is understood that
Landlord shall not have any obligation to cite improperly parked vehicles or
otherwise attempt to enforce reserved parking rules during hours when parking
attendants are not present at the Parking Area. Tenant shall comply with
such system in its use (and in the use of its visitors, patrons and
employees) of the Parking Area, provided, however, that the system and rules
and regulations shall apply to all persons entitled to the use of the Parking
Area, and all charges to Tenant for use of the Parking Area shall be no
greater than Landlord's then current scheduled charge for parking.
3. Tenant shall, upon request of Landlord from time to time,
furnish Landlord with a list of its employees' names and of Tenant's and its
employees' vehicle license numbers. Tenant agrees to acquaint its
employees with these regulations and assumes responsibility for compliance by
its employees with these parking provisions, and shall be liable to Landlord
for all unpaid parking charges incurred by its employees. Any amount due from
Tenant shall be deemed additional rent. Tenant authorizes Landlord to tow away
from the Building any vehicle belonging to Tenant or Tenant's employees parked
in violation of these provisions, and/or to attach violation stickers or
notices to those vehicles. In the event Landlord elects or is required to
limit or control parking by tenants, employees, visitors or invitees of the
Building, whether by validation of parking tickets, parking meters or any
other method of assessment, Tenant agrees to participate in the validation
or assessment program under reasonable rules and regulations as are
established by Landlord and/or any applicable governmental agency.
4. Landlord may establish an identification system for vehicles of
Tenant and its employees which may consist of stickers, magnetic parking cards
or other identification devices supplied by Landlord. All identification
devices shall remain the property of Landlord, shall be displayed as required
by Landlord or upon request and may not be mutilated or obliterated in any
manner. Those devices shall not be transferable and any such device in the
possession of an unauthorized holder shall be void and may be confiscated.
Landlord may impose a reasonable fee for identification devices and a
replacement charge for devices which are lost or stolen. Each identification
device shall be returned to Landlord promptly following the Expiration Date
or sooner termination of this Lease. Loss or theft of parking identification
devices shall be reported to Landlord or its Parking Area operator immediately
and a written report of the loss filed if requested by Landlord or its Parking
Area operator.
5. Persons using the Parking Area shall observe all directional
signs and arrows and any posted speed limits. Unless otherwise posted, in no
event shall the speed limit of 5 miles per hour be exceeded. All vehicles
shall be parked entirely within painted stalls, and no vehicles shall be parked
in areas which are posted or marked as "no parking" or on or in ramps,
driveways and aisles. Only one vehicle may be parked in a parking space. In
no event shall Tenant interfere with the use and enjoyment of the Parking Area
by other tenants of the Building or their employees or invitees.
6. Parking Areas shall be used only for parking vehicles. Washing,
waxing, cleaning or servicing of vehicles, or the parking of any vehicle on
an overnight basis, in the Parking Area (other than emergency services) by any
parker or his or her agents or employees is prohibited unless otherwise
authorized by Landlord. Tenant shall have no right to install any fixtures,
equipment or personal property (other than vehicles) in the Parking Area,
nor shall Tenant make any alteration to the Parking Area.
7. It is understood that the employees of Tenant and the other
tenants of Landlord within the Building and Project shall not be permitted
to park their automobiles in the portions of the Parking Area which may from
time to time be designated for patrons of the Building and/or Project and that
Landlord shall at all times have the right to establish rules and regulations
for employee parking. During the initial twenty-four (24) month Lease Term
only, employees shall pay to Landlord or its agents for the use of the
allotted employee parking spaces Forty Dollars ($40.00) per unreserved stall
per month. Thereafter, the stall charge payable by Tenant's employees shall be
the amounts as Landlord shall from time to time determine. Landlord may
authorize persons other than those described above, including occupants of
other buildings, to utilize the Parking Area. In the event of the use of the
Parking Area by other persons, those persons shall pay for that use in
accordance with the terms established above; provided, however, Landlord may
allow those persons to use the Parking Area on weekends, holidays, and at
other non-office hours without payment.
8. Notwithstanding the foregoing paragraphs 1 through 7, Landlord
shall be entitled to pass on to Tenant the proportionate share of any charges
or parking surcharge or transportation management costs levied by any
governmental agency. The foregoing parking provisions are further subject to
any governmental regulations which limit parking or otherwise seek to
encourage the use of carpools, public transit or other alternative
transportation forms or traffic reduction programs. Tenant agrees that it
will use its best efforts to cooperate, including registration and
attendance, in programs which may be
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undertaken to reduce traffic. Tenant acknowledges that as a part of those
programs, it may be required to distribute employee transportation
information, participate in employee transportation surveys, allow employees
to participate in commuter activities, designate a liaison for commuter
transportation activities, distribute commuter information to all employees,
and otherwise participate in other programs or services initiated under a
transportation management program.
9. Should any parking spaces be allotted by Landlord to Tenant,
either on a reserved or nonreserved basis, Tenant shall not assign or sublet any
of those spaces, either voluntarily or by operation of law, without the prior
written consent of Landlord, except in connection with an authorized assignment
of this Lease or subletting of the Premises.
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EXHIBIT D
TENANT'S INSURANCE
The following standards for Tenant's insurance shall be in effect
at the Building. Landlord reserves the right to adopt reasonable
nondiscriminatory modifications and additions to those standards. Tenant
agrees to obtain and present evidence to Landlord that it has fully complied
with the insurance requirements.
1. Tenant shall, at its sole cost and expense, commencing on the
date Tenant is given access to the Premises for any purpose and during the
entire Term, procure, pay for and keep in full force and effect: (i)
commercial general liability insurance with respect to the Premises and the
operations of or on behalf of Tenant in, on or about the Premises, including
but not limited to personal injury, nonowned automobile, blanket contractual,
independent contractors, broad form property damage, fire legal liability,
products liability (if a product is sold from the Premises), liquor law
liability (if alcoholic beverages are sold, served or consumed within the
Premises), and cross liability and severability of interest clauses, which
policy(ies) shall be written on an "occurrence" basis and for not less than
$2,000,000 combined single limit (With a $50,000 minimum limit on fire legal
liability) per occurrence for bodily injury, death, and property damage
liability, or the current limit of liability carried by Tenant, whichever is
greater, and subject to such increases in amounts as Landlord may determine
from time to time; (ii) workers' compensation insurance coverage as required
by law, together with employers' liability insurance coverage; (iii) with
respect to improvements, alterations, and the like required or permitted to
be made by Tenant under this Lease, builder's all-risk insurance, in amounts
satisfactory to Landlord; (iv) insurance against fire, vandalism, malicious
mischief and such other additional perils as may be included in a standard
"all risk" form, insuring the leasehold improvements, trade features,
furnishings, equipment and items of personal property in the Premises, in an
amount equal to not less than ninety percent (90%) of their actual replacement
cost (with replacement cost endorsement), which policy shall also include
loss of income/business interruption/extra expense coverage in an amount not
less than nine months loss of income from Tenant's business in the Premises.
In no event shall the limits of any policy be considered as limiting the
liability of Tenant under this Lease.
2. All policies of insurance required to be carried by Tenant
pursuant to this Exhibit D shall be written by responsible insurance
companies authorized to do business in the State of California and with a
Best's policyholder rating of not less than A-X subject to final acceptance
and approval by Landlord. Any insurance required of Tenant may be furnished
by Tenant under any blanket policy carried by it or under a separate policy.
A true and exact copy of each paid up policy evidencing the insurance
(appropriately authenticated by the insurer) or a certificate of insurance,
certifying that the policy has been issued, provides the coverage required by
this Exhibit D and contains the required provisions, shall be delivered to
Landlord prior to the date Tenant is given the right of possession of the
Premises. Proper evidence of the renewal of any insurance coverage shall
also be delivered to Landlord not less than thirty (30) days prior to the
expiration of the coverage. Landlord may at any time, and from time to time,
inspect and/or copy any and all insurance policies required by this Lease.
3. Each policy evidencing insurance required to be carried by Tenant
pursuant to this Exhibit D shall contain the following provisions and/or clauses
satisfactory to Landlord: (i) a provision that the policy and the coverage
provided shall be primary and that any coverage carried by Landlord shall be
noncontributory with respect to any policies carried by Tenant; (ii) a provision
including Landlord and any other parties in interest designated by Landlord as
an additional insured, except as to workers compensation insurance; (iii) a
waiver by the insurer of any right to subrogation against Landlord, its agents,
employees, contractors and representatives which arises or might arise by reason
of any payment under the policy or by reason of any act or omission of Landlord,
its agents, employees, contractors or representatives; and (iv) a provision that
the insurer will not cancel or change the coverage provided by the policy
without first giving Landlord thirty (30) days prior written notice.
4. In the event that Tenant fails to procure, maintain and/or pay
for, at the times and for the durations specified in this Exhibit D, any
insurance required by this Exhibit D, or fails to carry insurance required by
any governmental authority, Landlord may at its election procure that insurance
and pay the premiums, in which event Tenant shall repay Landlord all sums paid
by Landlord, together with interest at the maximum rate permitted by law and any
related costs or expenses incurred by Landlord, within ten (10) days following
Landlord's written demand to Tenant.
<PAGE>
EXHIBIT E
RULES AND REGULATIONS
The following Rules and Regulations shall be in effect at the
Building. Landlord reserves the right to adopt reasonable nondiscriminatory
modifications and additions at any time. In the case of any conflict between
these regulations and the Lease, the Lease shall be controlling.
1. Except with the prior written consent of Landlord, Tenant shall
not sell, or permit the retail sale of, newspapers, magazines, periodicals,
or theater tickets, in or from the Premises, nor shall Tenant carry on, or
permit or allow any employee or other person to carry on, the business of
stenography, typewriting or any similar business in or from the Premises for
the service or accommodation of occupants of any other portion of the
Building. Tenant shall not allow the Premises to be utilized for any
manufacturing of any kind, or the business of a public barber shop, beauty
parlor, or a manicuring and chiropodist business, or any business other than
that specifically provided for in the Lease.
2. The sidewalks, halls, passages, elevators, stairways, and
other common areas shall not be obstructed by Tenant or used by it for
storage or for any purpose other than for ingress to and egress from the
Premises. The halls, passages, entrances, elevators, stairways, balconies
and roof are not for the use of the general public, and Landlord shall in all
cases retain the right to control and prevent access to those areas of all
persons whose presence, in the judgment of Landlord, shall be prejudicial to
the safety, character, reputation and interests of the Building and its
tenants. Nothing contained in this Lease shall be construed to prevent
access to persons with whom Tenant normally deals only for the purpose of
conducting its business on the Premises (such as clients, customers, office
suppliers and equipment vendors and the like) unless those persons are
engaged in illegal activities. Neither Tenant nor any employee or contractor
of Tenant shall go upon the roof of the Building without the prior written
consent of Landlord.
3. The sashes, sash doors, windows, glass lights, solar film
and/or screen, and any lights or skylights that reflect or admit light into
the halls or other places of the Building shall not be covered or obstructed.
The toilet rooms, water and wash closets and other water apparatus shall not
be used for any purpose other than that for which they were constructed, and
no foreign substance of any kind shall be thrown in those facilities, and the
expense of any breakage, stoppage or damage resulting from the violation of
this rule shall be borne by Tenant.
4. No sign, advertisement or notice visible from the exterior of
the Premises shall be inscribed, painted or affixed by Tenant on any part of
the Building or the Premises without the prior written consent of Landlord.
If Landlord shall have given its consent at any time, whether before or after
the execution of this Lease, that consent shall in no way operate as a waiver
or release of any of the provisions of this Lease, and shall be deemed to
relate only to the particular sign, advertisement or notice so consented to
by Landlord and shall not be construed as dispensing with the necessity of
obtaining the specific written consent of Landlord with respect to any
subsequent sign, advertisement or notice. If Landlord, by a notice in
writing to Tenant, shall object to any curtain, blind, tinting, shade or
screen attached to, or hung in, or used in connection with, any window or
door of the Premises, the use of that curtain, blind, tinting, shade or
screen shall be immediately discontinued and removed by Tenant. No awnings
shall be permitted on any part of the Premises.
5. Tenant shall not do or permit anything to be done in the
Premises, or bring or keep anything in the Premises, which shall in any way
increase the rate of fire insurance on the Building, or on the property kept
in the Building, or obstruct or interfere with the rights of other tenants,
or in any way injure or annoy them, or conflict with the regulations of the
Fire Department or the fire laws, or with any insurance policy upon the
Building, or any portion of the Building or its contents, or with any rules
and ordinances established by the Board of Health or other governmental
authority.
6. The installation and location of any unusually heavy equipment
in the Premises, including without limitation file storage units, safes and
electronic data processing equipment, shall require the prior written
approval of Landlord. Landlord may restrict the weight and position of any
equipment that may exceed the weight load limits for the structure of the
Building, and may further require, at Tenant's expense, the reinforcement of
any flooring on which such equipment may be placed and/or an engineering
study to be performed to determine whether the equipment may safely be
installed in the Building and the necessity of any reinforcement. The moving
of large or heavy objects shall occur only between those hours as may be
designated by, and only upon previous written notice to, Landlord, and the
persons employed to move those objects in or out of the Building must be
reasonably acceptable to Landlord. No freight, furniture or bulky matter of
any description shall be received into or moved out of the lobby of the
Building or carried in any elevator other than the freight elevator
designated by Landlord unless approved in writing by Landlord.
7. Landlord shall clean the Premises as provided in the Lease, and
except with the written consent of Landlord, no person or persons other than
those approved by Landlord will be permitted to enter the Building for that
purpose. Tenant shall not cause unnecessary labor by reason of Tenant's
carelessness and indifference in the preservation of good order and
cleanliness. Landlord shall not be responsible to Tenant or its employees for
loss or damage to property in connection with the provision of janitorial
services by third party contractors.
8. Tenant shall not sweep or throw, or permit to be swept or
thrown, from the Premises any dirt or other substance into any of the
corridors or halls or elevators, or out of the doors or windows or stairways
of the Building, and Tenant shall not use, keep or permit to be used or kept
any foul or noxious gas or substance in the Premises, or permit or suffer the
Premises to be occupied or used in a manner offensive or objectionable to
Landlord or other occupants of the Building by reason of noise, odors and/or
vibrations, or interfere in any way with other tenants or those having
business with other tenants, nor shall any animals or birds be kept by Tenant
in or about the Building. Smoking or carrying of lighted cigars, cigarettes,
pipes or similar products anywhere within the elevators, restrooms, common
corridors, lobbies or other common areas of the Building is strictly
prohibited. Any such activity within the Premises shall, until further
notice, be permitted only absent written notification to Landlord from another
tenant of the Building that such activity is creating fumes or odors that are
offensive or objectionable; in the event such notice is given to Landlord,
Landlord may prohibit smoking within the Premises and may enforce such
prohibition pursuant to Landlord's leasehold remedies. Smoking is permitted
outside the Building and within the project only in areas designated by
Landlord.
9. No cooking shall be done or permitted by Tenant on the
Premises, except pursuant to the normal use of a U.L. approved microwave oven
and coffee maker for the benefit of Tenant's employees and invitees, nor
shall the Premises be used for the storage of merchandise or for lodging.
10. Tenant shall not use or keep in the Building any kerosene,
gasoline, or inflammable fluid or any other illuminating material, or use
any method of heating other than that supplied by Landlord.
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11. If Tenant desires telephone, telegraph, burglar alarm or similar
connections, Landlord will direct electricians as to where and how the wires are
to be introduced. No boring or cutting for wires or otherwise shall be made
without directions from Landlord.
12. Upon the termination of its tenancy, Tenant shall deliver to
Landlord all the keys to offices, rooms and toilet rooms and all access cards
which shall have been furnished to Tenant or which Tenant shall have had made.
13. Tenant shall not mark, drive nails, screw or drill into the
partitions, woodwork or plaster or in any way deface the Premises, except to
install normal wall hangings. Tenant shall not affix any floor covering to the
floor of the Premises in any manner except by a paste, or other material which
may easily be removed with water, the use of cement or other similar adhesive
materials being expressly prohibited. The method of affixing any floor covering
shall be subject to approval by Landlord. The expense of repairing any damage
resulting from a violation of this rule shall be borne by Tenant.
14. On Saturdays, Sundays and legal holidays, and on other days
between the hours of 6:00 p.m. and 8:00 a.m., access to the Building, or to
the halls, corridors, elevators or stairways in the Building, or to the
Premises, may be refused unless the person seeking access complies with any
access control system that Landlord may establish. Landlord shall in no case
be liable for damages for the admission to or exclusion from the Building of
any person whom Landlord has the right to exclude under Rules 2 or 18 of this
Exhibit. In case of invasion, mob, riot, public excitement, or other
commotion, or in the event of any other situation reasonably requiring the
evacuation of the Building, Landlord reserves the right at its election and
without liability to Tenant to prevent access to the Building by closing the
doors or otherwise, for the safety of the tenants and protection of property
in the Building.
15. Tenant shall be responsible for protecting the Premises from
theft, which includes keeping doors and other means of entry closed and
securely locked. Tenant shall cause all water faucets or water apparatus to
be shut off before Tenant or Tenant's employees leave the Building, and that
all electricity, gas or air shall likewise be shut off, so as to prevent
waste or damage, and for any default or carelessness Tenant shall make good
all injuries sustained by other tenants or occupants of the Building or
Landlord.
16. Tenant shall not alter any lock or install a new or additional
lock or any bolt on any door of the Premises without the prior written
consent of Landlord. If Landlord gives its consent, Tenant shall in each
case promptly furnish Landlord with a key for any new or altered lock.
17. Tenant shall not install equipment, such as but not limited to
electronic tabulating or computer equipment, requiring electrical or air
conditioning service in excess of that to be provided by Landlord under the
Lease except in accordance with Exhibit B.
18. Landlord shall have full and absolute authority to regulate or
prohibit the entrance to the Premises of any vendor, supplier, purveyor,
petitioner, proselytizer or other similar person. In the event any such
person is a guest or invitee of Tenant, Tenant shall notify Landlord in
advance of each desired entry, and Landlord shall authorize the person so
designated to enter the Premises, provided that in the sole and absolute
discretionary judgment of Landlord, such person will not be involved in
general solicitation activities, or the proselytizing, petitioning, or
disturbance of other tenants or their customers or invitees, or engaged or
likely to engage in conduct which may in Landlord's opinion distract from the
use of the Premises for its intended purpose. Notwithstanding the foregoing,
Landlord reserves the absolute right and discretion to limit or prevent
access to the Buildings by any food or beverage vendor, whether or not
invited by Tenant, and Landlord may condition such access upon the vendor's
execution of an entry permit agreement which may contain provisions for
insurance coverage and/or the payment of a fee to Landlord.
19. Tenant shall be required to utilize the third party contractor
designated by Landlord for the Building to provide any telephone wiring
services from the minimum point of entry of the telephone cable in the
Building to the Premises. Notwithstanding the foregoing, however, in the
event Tenant does not have a telephone switch within the Premises, Tenant
may, with Landlord's approval and supervision, use a trained contractor to
provide such wiring services, but only from the Premises to the telephone
room on the floor on which the Premises are situated.
20. Landlord may from time to time grant tenants individual and
temporary variances from these Rules, provided that any variance does not
have a material adverse effect on the use and enjoyment of the Premises by
Tenant.
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EXHIBIT X
WORK LETTER/BUILD TO SUIT
Landlord shall cause its contractor to construct, at Landlord's
sole cost and expense, the tenant improvements for the Premises as shown in
the space plan prepared by Landlord, dated October 4, 1996 (the "Plan") and
attached hereto as Exhibit X-1, and the cost estimate (the "Cost Estimate")
prepared by Turelk Construction, dated October 4, 1996. Any additional cost
resulting from changes requested by Tenant shall be borne solely by Tenant.
Unless otherwise specified in the Plan or Cost Estimate or hereafter agreed
in writing by Landlord, all materials and finishes utilized in constructing
the tenant improvements shall be Landlord's building standard. Should
Landlord submit any additional plans, equipment specification sheets, or
other matters to Tenant for approval or completion, Tenant shall respond in
writing, as appropriate, within five (5) working days unless a shorter period
is provided herein. Tenant shall not unreasonably withhold its approval of
any matter, and any disapproval shall be limited to items not previously
approved by Tenant in the Plan or otherwise.
In the event that Tenant requests in writing a revision in the Plan
or in any other plans hereafter approved by Tenant, then provided such change
request is acceptable to Landlord, Landlord shall advise Tenant by written
change order of any additional cost and/or Tenant Delay (as defined below)
such change would cause. Tenant shall approve or disapprove such change
order in writing within two (2) days following its receipt. Tenant's
approval of a change order shall not be effective unless accompanied by
payment in full of the additional cost of the tenant improvement work
resulting from the change order. It is understood that Landlord shall have
no obligation to interrupt or modify the tenant improvement work pending
Tenant's approval of a change order.
Notwithstanding any provision in the Lease to the contrary, if
Tenant fails to comply with any of the time periods specified in this Work
Letter, requests any changes to the work, furnishes inaccurate or erroneous
specifications or other information, or otherwise delays in any manner the
completion of the tenant improvements or the issuance of an occupancy
certificate (any of the foregoing being referred to in this Lease as a
"Tenant Delay"), then Tenant shall bear any resulting additional construction
cost or other expenses and the Commencement Date shall be deemed to have
occurred for all purposes, including Tenant's obligation to pay rent, as of
the date Landlord reasonably determines that it would have been able to
deliver the Premises to Tenant but for the collective Tenant Delays. In no
event, however, shall such date be earlier than the Estimated Commencement
Date set forth in the Basic Lease Provisions.
Landlord shall permit Tenant and its agents to enter the Premises
prior to the Commencement Date of the Lease in order that Tenant may perform
any work to be performed by Tenant hereunder through its own contractors,
subject to Landlord's prior written approval, and in a manner and upon terms
and conditions and at times satisfactory to Landlord's representative. The
foregoing license to enter the Premises prior to the Commencement Date is,
however, conditioned upon Tenant's contractors and their subcontractors and
employees working in harmony and not interfering with the work being
performed by Landlord. If at any time that entry shall cause disharmony or
interfere with the work being performed by Landlord, this license may be
withdrawn by Landlord upon twenty-four (24) hours written notice to Tenant.
That license is further conditioned upon the compliance by Tenant's
contractors with all requirements imposed by Landlord on third party
contractors, including without limitation the maintenance by Tenant and its
contractors and subcontractors of workers' compensation and public liability
and property damage insurance in amounts and with companies and on forms
satisfactory to Landlord, with certificates of such insurance being furnished
to Landlord prior to proceeding with any such entry. The entry shall be
deemed to be under all of the provisions of the Lease except as to the
covenants to pay rent. Landlord shall not be liable in any way for any
injury, loss or damage which may occur to any such work being performed by
Tenant, the same being solely at Tenant's risk. In no event shall the
failure of Tenant's contractors to complete any work in the Premises extend
the Commencement Date of the Lease beyond the date that Landlord has
completed its tenant improvement work and tendered the Premises to Tenant.
Tenant hereby designates Jamie Burgess, Telephone No. (714)
224-2558, as its representative, agent and attorney-in-fact for the purpose
of receiving notices, approving submittals and issuing requests for changes,
and Landlord shall be entitled to rely upon authorizations and directives of
such person(s) as if given by Tenant. Tenant may amend the designation of
its construction representative(s) at any time upon delivery of written notice
to Landlord.
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JAMBOREE
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CENTER
--------
4 PARK PLAZA
NINETEENTH FLOOR
1. ??????????????? 6. ????????????????????
new glass if necessary
2. Install new demising wall 7. Demolish walls/Door where
indicated by XXXXX.
3. Install new interior wall
8. Install new carpet where
4. Relocate sink, rebuild lower indicated by C.
cabinet and upper cabinet 6'
9. Rekey & New Suite Signage
5. Build a closet wall, install
relocated door from demolished
wall location
[Floor Plan]
EXHIBIT X-1
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AMENDMENT NO. 1 TO THE PERSONAL SERVICES AGREEMENT BETWEEN
PHARMAPRINT INC. (FORMERLY, ABT GLOBAL PHARMACEUTICAL CORP.),
DIMENSION MEMORY, INC. AND ROBERT BURGESS DATED AS OF MAY 8, 1996
-----------------------------------------------------------------
This Amendment No. 1, made as of this 10th day of December, 1996 by and
among PharmaPrint Inc. (formerly, ABT Global Pharmaceutical Corp.) (the
"Company"), Dimension Memory, Inc. ("Dimension") and Robert Burgess
("Burgess"), shall amend that certain Personal Services Agreement dated as of
May 8, 1996 ("Personal Services Agreement") by and between the Company,
Dimension and Burgess.
WHEREAS, the Company is in the business of developing pharmaceutical
versions of natural medicines using its proprietary PharmaPrinting technology;
WHEREAS, pursuant to the Personal Services Agreement, Dimension has
been providing the services of Burgess to the Company as the Company's
Executive Vice President and Chief Operating Officer on the terms and
conditions set forth in the Personal Services Agreement (the "Existing
Duties");
WHEREAS, the Company intends to expand its international marketing and
licensing of its PharmaPrinting technology and related products to
manufacturers of natural medicines and conventional pharmaceutical companies
located in Australia and Southeast Asia;
WHEREAS, Dimension and Burgess have significant contacts and
relationships with Australian and Southeast Asian entities and individuals in
the natural medicine business and can offer additional services to the
Company with respect to such geographic region;
WHEREAS, the Company wishes to retain, and Dimension desires to
perform, the additional services provided for herein;
WHEREAS, in compensation for the additional services to be provided
hereunder and in payment of the balance of the compensation payable under the
Personal Services Agreement as if the full term of such agreement had run,
the Company will pay Dimension and Burgess an amount equal to Three Hundred
Four Thousand Dollars ($304,000), which amount will be paid as soon as
practicable hereafter; and
WHEREAS, the parties hereto have agreed to amend the Personal Services
Agreement in order to reflect their agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein, the parties hereto, intending to be legally bound, agree
that the Personal Services Agreement is hereby amended as follows:
<PAGE>
1. Section 3 is amended by adding the following subsection immediately
after subsection (a);
"(b) In addition to providing the personal services of
Burgess to function as the Company's Executive Vice President
and Chief Operating Officer, Dimension will (i) utilize its
business contacts and relationships in Australia and Southeast
Asia and otherwise use its best efforts to locate and
introduce the Company to potential licensing and/or
manufacturing partners or customers, including without
limitation, natural medicine and pharmaceutical companies who
may be interested in contracting with the Company to
"PharmaPrint" natural medicines; and (ii) take such actions as
are reasonably requested by the Company to maintain good
relations between the Company and its existing and potential
shareholders residing in Australia and Southeast Asia (the
"Additional Duties)."
2. Section 4 is amended by adding the following paragraph immediately
after the first paragraph:
"Notwithstanding the foregoing, the services to be provided by
Dimension pursuant to Section 3(b) hereof, shall be rendered
in Australia and Southeast Asia as the Company and Dimension
shall deem reasonably necessary."
3. Section 5(b) is amended by deleting the subsection in its entirety and
replacing it with the following:
"5(b). During the term of this Agreement, Dimension shall be
entitled to receive compensation in the amount of $304,000 for
providing the services of Burgess to the Company and the
performance by Burgess of the Existing Duties and by Dimension
of the Additional Duties set forth in Section 3 hereof. Such
amount shall be paid by the Company in advance in one lump sum
payment (the "Prepayment").
4. Section 6 is amended by deleting the section in its entirety and
replacing it with the following:
"6. AUTOMOBILE ALLOWANCE.
During the term of this Agreement, Burgess shall be entitled
to receive an automobile allowance of Five Hundred Dollars
($500) per month, the aggregate amount of which is payable in
advance by
<PAGE>
the Company in one lump sum payment (the "Advanced Automobile
Allowance"). Burgess agrees at all times to maintain
automobile insurance, including liability coverage of at least
$1,000,000 per occurrence and $3,000,000 in the aggregate."
5. Section 7 is amended by deleting the section in its entirety and
replacing it with the following:
"7. TERMINATION COMPENSATION AND REPAYMENT.
(a) Upon termination by the Company without a Breach
pursuant to Section 2(b) hereof, Dimension shall be entitled to
(i) the Compensation under Section 5 (including the unearned
portion of the Prepayment and reimbursement of
business-related expenses up to and including the last date of
Burgess' services to the Company) and (ii) the unearned
portion of the Advanced Automobile Allowance under Section 6
hereof.
(b) Upon termination (i) by the Company for a Breach or
upon the death or Disability of Burgess, or (ii) by Dimension
without a Company Breach pursuant to Section 2(b) hereof,
Dimension shall be obligated to repay the Company (x) an
amount equal to the pro rata unearned portion of the
Prepayment paid pursuant to Section 5(b) hereof, and (y) an
amount equal to the pro rata unearned portion of the Advance
Automobile Allowance, within thirty (30) days of the date of
termination, provided, however, that Dimension shall be
entitled to reimbursement of business-related expenses under
Section 5(c) hereof, up to and including the date of
termination.
All other terms and provisions contained in the Personal Services
Agreement are hereby ratified and shall remain in full force and effect. This
Amendment may be executed in counterparts, each of which together shall be
deemed to be an original as against any party whose signature appears
thereon, and all of such shall together constitute one and the same
instrument.
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first written above.
PHARMAPRINT INC. DIMENSION MEMORY, INC.
By: By:
---------------------------- ----------------------------
Name: Name:
Title: Title:
-------------------------------
Robert Burgess
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