California-Fremont-6607 Dumbarton Circle Lease - Peery/Arrillaga and Ciphergen Biosystems Inc.
LEASE AGREEMENT
THIS LEASE, made this 28th day of January, 2000 between JOHN ARRILLAGA,
Trustee, or his Successor Trustee, UTA dated 7/20/77 (JOHN ARRILLAGA
SURVIVOR'S TRUST) as amended, and RICHARD T. PEERY, Trustee, or his Successor
Trustee, UTA dated 7/20/77 (RICHARD T. PEERY SEPARATE PROPERTY TRUST) as
amended hereinafter called Landlord, and CIPHERGEN BIOSYSTEMS, INC., a
California corporation, hereinafter called Tenant.
WITNESSETH:
Landlord hereby leases to Tenant and Tenant hereby hires and takes from
Landlord those certain premises (the "Premises") outlined in red on Exhibit
"A", attached hereto and incorporated herein by this reference thereto more
particularly described as follows:
A portion of that certain 60,720 PLUS OR MINUS square foot, one-story
building located at 6607 Dumbarton Circle, Suite 200, Fremont, California
94555, consisting of approximately 30,232 PLUS OR MINUS square feet of space.
Said Premises is more particularly shown within the area outlined in Red on
EXHIBIT A attached hereto. The entire parcel, of which the Premises is a
part, is shown within the area outlined in Green on EXHIBIT A attached. The
Premises shall be constructed by Landlord as set forth in the related
Construction Agreement of even date herewith. The improved interior
configuration is shown in Red on EXHIBIT B to be attached hereto.
The word "Premises" as used throughout this lease is hereby defined to
include the nonexclusive use of landscaped areas, sidewalks and driveways in
front of or adjacent to the Premises, and the nonexclusive use of the area
directly underneath or over such sidewalks and driveways. The gross leasable
area of the building shall be measured from outside of exterior walls to
outside of exterior walls, and shall include any atriums, covered entrances
or egresses and covered loading areas.
Said letting and hiring is upon and subject to the terms, covenants and
conditions hereinafter set forth and Tenant covenants as a material part of
the consideration for this Lease to perform and observe each and all of said
terms, covenants and conditions. This Lease is made upon the conditions of
such performance and observance.
1. USE Tenant shall use the Premises only in conformance with applicable
governmental laws, regulations, rules and ordinances for the purpose of
general office, laboratory, research and development, storage and other uses
necessary for Tenant to conduct Tenant's business, provided that such uses
shall be in accordance with all applicable governmental laws and ordinances,
and for no other purpose. Tenant shall not do or permit be done in or about
the Premises nor bring or keep or permit to be brought or kept in or about
the Premises anything which is prohibited by or will in any way increase the
existing rate of (or otherwise affect) fire or any insurance covering the
Premises or any part thereof, or any of its contents, or will cause a
cancellation of any insurance covering the Premises or any part thereof, or
any of its contents. Tenant shall not do or permit to be done anything in, on
or about the Premises which will in any way obstruct or interfere with the
rights of other tenants or occupants of the Premises or neighboring premises
or injure or annoy them, or use or allow the Premises to be used for any
improper, immoral, unlawful or objectionable purpose, nor shall Tenant cause,
maintain or permit any nuisance in, on or about the Premises. No sale by
auction shall be permitted on the Premises. Tenant shall not place any loads
upon the floors, walls, or ceiling which endanger the structure, or place any
harmful fluids or other materials in the drainage system of the building, or
overload existing electrical or other mechanical systems. No waste materials
or refuse shall be dumped upon or permitted to remain upon any part of the
Premises or outside of the building in which the Premises are a part, except
in trash containers placed inside exterior enclosures designated by Landlord
for that purpose or inside of the building proper where designated by
Landlord. No materials, supplies, equipment, finished products or
semi-finished products, raw materials or articles of any nature shall be
stored upon or permitted to remain outside the Premises. Tenant shall not
place anything or allow anything to be placed near the glass of any window,
door partition or wall which may appear unsightly from outside the Premises.
No loudspeaker or other device, system or apparatus which can be heard
outside the Premises shall be used in or at the Premises without the prior
written consent of Landlord. Tenant shall not commit or suffer to be
committed any waste in or upon the Premises. Tenant shall indemnify, defend
and hold Landlord harmless against any loss, expense, damage, reasonable
attorneys' fees, or liability arising out of failure of Tenant to comply with
any applicable law. Tenant shall comply with any covenant, condition, or
restriction ("CC&R's") affecting the Premises. The provisions of this
paragraph are for the benefit of Landlord only and shall not be construed to
be for the benefit of any tenant or occupant of the Premises. Landlord has
provided a copy of said CC&R's to Tenant.
2. TERM*
A. The term of this Lease shall be for a period of EIGHT (8) years (unless
sooner terminated as hereinafter provided) and, subject to Paragraphs 2B and
3, shall commence on the 1st day of April , 2000 and end on the 31st day of
March, 2008.
B. Possession of the Premises shall be deemed tendered and the term of the
Lease shall commence when the first of the following occurs:
(a) One day after a Certificate of Occupancy is granted by the proper
governmental agency, or, if the governmental agency having jurisdiction over the
area in which the Premises are situated does not issue certificates of
occupancy, then the same number of days after certification by Landlord's
architect or contractor that Landlord's construction work has been completed;
or
(b) Upon the occupancy of the Premises by any of Tenant's operating
personnel; or
(c) When the Tenant Improvements have been substantially completed for
Tenant's use and occupancy, in accordance and compliance with Exhibit B of this
Lease Agreement; or
(d) As otherwise agreed in writing.
* It is agreed in the event said Lease commences on a date other than the first
day of the month the term of the Lease will be extended to account for the
number of days in the partial month. The Basic Rent during the resulting partial
month will be pro-rated (for the number of days in the partial month) at the
Basic Rent rate scheduled for the projected commencement date as shown in
Paragraph 39.
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3. POSSESSION If Landlord, for any reason whatsoever, cannot deliver possession
of said premises to Tenant at the commencement of the said term, as hereinbefore
specified, this Lease shall not be void or voidable; no obligation of Tenant
shall be affected thereby; nor shall Landlord or Landlord's agents be liable to
Tenant for any loss or damage resulting therefrom; but in that event the
commencement and termination dates of the Lease, and all other dates affected
thereby shall be revised to conform to the date of Landlord's delivery of
possession, as specified in Paragraph 2B, above. The above is, however, subject
to the provision that the period of delay of delivery of the Premises shall not
exceed 90 days from the commencement date herein (except those delays caused by
Acts of God, strikes, war, utilities, governmental bodies, weather, unavailable
materials, and delays beyond Landlord's control shall be excluded in calculating
such period) in which instance Tenant, at its option, may, by written notice to
Landlord, terminate this Lease.
4. RENT
A. BASIC RENT. Tenant agrees to pay to Landlord at such place as Landlord may
designate without deduction, offset, prior notice, or demand, and Landlord
agrees to accept as Basic Rent for the leased Premises the total sum of EIGHT
MILLION TWO HUNDRED SEVENTY ONE THOUSAND FOUR HUNDRED SEVENTY FIVE AND 20/100
Dollars ($ 8,271,475.20) in lawful money of the United States of America,
payable as follows:
See Paragraph 39 for Basic Rent Schedule
B. TIME FOR PAYMENT. Full monthly rent is due in advance on the first day of
each calendar month. In the event that the term of this Lease commences on a
date other than the first day of a calendar month, on the date of commencement
of the term hereof Tenant shall pay to Landlord as rent for the period from such
date of commencement to the first day of the next succeeding calendar month that
proportion of the monthly rent hereunder which the number of days between such
date of commencement and the first day of the next succeeding calendar month
bears to thirty (30). In the event that the term of this Lease for any reason
ends on a date other than the last day of a calendar month, on the first day of
the last calendar month of the term hereof Tenant shall pay to Landlord as rent
for the period from said first day of said last calendar month to and including
the last day of the term hereof that proportion of the monthly rent hereunder
which the number of days between said first day of said last calendar month and
the last day of the term hereof bears to thirty (30).
C. LATE CHARGE. Notwithstanding any other provision of this Lease, if Tenant
is in default in the payment of rental as set forth in this Paragraph 4 when
due, or any part thereof, Tenant agrees to pay Landlord, in addition to the
delinquent rental due, a late charge for each rental payment in default ten (10)
days. Said late charge shall equal ten percent (10%) of each rental payment so
in default.
D. ADDITIONAL RENT. Beginning with the commencement date of the term of this
Lease, Tenant shall pay to Landlord or to Landlord's designated agent in
addition to the Basic Rent and as Additional Rent the following:
(a) All Taxes relating to the Premises as set forth in Paragraph 9, and
(b) All insurance premiums and deductibles relating to the Premises, as set
forth in Paragraph 12, and
(c) All charges, costs and expenses, which Tenant is required to pay
hereunder, together with all interest and penalties, costs and expenses
including reasonable attorneys' fees and legal expenses, that may accrue thereto
in the event of Tenant's failure to pay such amounts, and all damages,
reasonable costs and expenses which Landlord may incur by reason of default of
Tenant or failure on Tenant's part to comply with the terms of this Lease. In
the event of nonpayment by Tenant of Additional Rent, Landlord shall have all
the rights and remedies with respect thereto as Landlord has for nonpayment of
rent, and
(d) all prorated costs and expenses related to the Ardenwood Property
Owners' Association as set forth in Paragraph 53.
The Additional Rent due hereunder shall be paid to Landlord or Landlord's
agent (i) within five days for taxes and insurance and within thirty days for
all other Additional Rent items after presentation of invoice from Landlord or
Landlord's agent setting forth such Additional Rent and/or (ii) at the option of
Landlord, Tenant shall pay to Landlord monthly, in advance, Tenant's pro rata
share of an amount estimated by Landlord to be Landlord's approximate average
monthly expenditure for such Additional Rent items, which estimated amount shall
be reconciled within 120 days of the end of each calendar year or more
frequently if Landlord elects to do so at Landlord's sole and absolute
discretion as compared to Landlord's actual expenditure for said Additional Rent
items, with Tenant paying to Landlord, upon demand, any amount of actual
expenses expended by Landlord in excess of said estimated amount, or Landlord
crediting to Tenant (providing Tenant is not in default in the performance of
any of the terms, covenants and conditions of this Lease) any amount of
estimated payments made by Tenant in excess of Landlord's actual expenditures
for said Additional Rent items.
The respective obligations of Landlord and Tenant under this paragraph shall
survive the expiration or other termination of the term of this Lease, and if
the term hereof shall expire or shall otherwise terminate on a day other than
the last day of a calendar year, the actual Additional Rent incurred for the
calendar year in which the term hereof expires or otherwise terminates shall be
determined and settled on the basis of the statement of actual Additional Rent
for such calendar year and shall be prorated in the proportion which the number
of days in such calendar year preceding such expiration or termination bears to
365.
E. FIXED MANAGEMENT FEE. Beginning with the Commencement Date of the Term of
this Lease, Tenant shall pay to Landlord, in addition to the Basic Rent and
Additional Rent, a fixed monthly management fee ("Management Fee") equal to 3%
of the Basic Rent due for each month during the Lease Term.
F. PLACE OF PAYMENT OF RENT AND ADDITIONAL RENT. All Basic Rent hereunder and
all payments hereunder for Additional Rent shall be paid to Landlord at the
office of Landlord at Peery/Arrillaga, File 1504, Box 60000, San Francisco, CA
94160 or to such other person or to such other place as Landlord may from time
to time designate in writing.
G. SECURITY DEPOSIT. Concurrently with Tenant's execution of this Lease,
Tenant shall deposit with Landlord the sum of ONE HUNDRED NINETY THREE THOUSAND
FOUR HUNDRED EIGHTY FOUR AND 80/100 Dollars ($ 193,484.80). Said sum shall be
held by Landlord as a Security Deposit for the faithful performance by Tenant of
all of the terms, covenants, and conditions of this Lease to be kept and
performed by Tenant during the term hereof. If Tenant defaults with respect to
any provision of this Lease, including, but not limited to, the provisions
relating to the payment of rent and any of the monetary sums due herewith,
Landlord may (but shall not be required to) use, apply or retain all or any part
of this Security Deposit for the payment of any other amount which Landlord may
spend by reason of Tenant's default or to compensate Landlord for
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any other loss or damage which Landlord may suffer by reason of Tenant's
default. If any portion of said Deposit is so used or applied, Tenant shall,
within ten (10) days after written demand therefor, deposit cash with Landlord
in the amount sufficient to restore the Security Deposit to its original amount.
Tenant's failure to do so shall be a material breach of this Lease. Landlord
shall not be required to keep this Security Deposit separate from its general
funds, and Tenant shall not be entitled to interest on such Deposit. If Tenant
fully and faithfully performs every provision of this Lease to be performed by
it, the Security Deposit or any balance thereof shall be returned to Tenant (or
at Landlord's option, to the last assignee of Tenant's interest hereunder) at
the expiration of the Lease term and after Tenant has vacated the Premises. In
the event of termination of Landlord's interest in this Lease, Landlord shall
transfer said Deposit to Landlord's successor in interest whereupon Tenant
agrees to release Landlord from liability for the return of such Deposit or the
accounting therefor.
5. ACCEPTANCE AND SURRENDER OF PREMISES By entry hereunder, Tenant accepts the
Premises as being in good and sanitary order, condition and repair and accepts
the building and improvements included in the Premises in their present
condition and without representation or warranty by Landlord as to the condition
of such building or as to the use or occupancy which may be made thereof. Any
exceptions to the foregoing must be by written agreement executed by Landlord
and Tenant. Tenant agrees on the last day of the Lease term, or on the sooner
termination of this Lease, to surrender the Premises promptly and peaceably to
Landlord in good condition and repair (damage by Acts of God, fire, normal wear
and tear excepted), with all interior walls painted, or cleaned so that they
appear freshly painted, and repaired and replaced, if damaged; all floors
cleaned and waxed; all carpets cleaned and shampooed; all broken, marred or
nonconforming acoustical ceiling tiles replaced; all windows washed; the air
conditioning and heating systems serviced by a reputable and licensed service
firm and in good operating condition and repair; the plumbing and electrical
systems and lighting in good order and repair, including replacement of any
burned out or broken light bulbs or ballasts; the lawn and shrubs in good
condition including the replacement of any dead or damaged plantings; the
sidewalk, driveways and parking areas in good order, condition and repair;
together with all alterations, additions, and improvements which may have been
made in, to, or on the Premises (except moveable trade fixtures installed at the
expense of Tenant) except that Tenant shall ascertain from Landlord within
thirty (30) days before the end of the term of this Lease whether Landlord
desires to have the Premises or any part or parts thereof restored to their
condition and configuration as when the Premises were delivered to Tenant and if
Landlord shall so desire, then Tenant shall restore said Premises or such part
or parts thereof before the end of this Lease at Tenant's sole cost and expense.
Tenant, on or before the end of the term or sooner termination of this Lease,
shall remove all of Tenant's personal property and trade fixtures from the
Premises, and all property not so removed on or before the end of the term or
sooner termination of this Lease shall be deemed abandoned by Tenant and title
to same shall thereupon pass to Landlord without compensation to Tenant.
Landlord may, upon termination of this Lease, remove all moveable furniture and
equipment so abandoned by Tenant, at Tenant's sole cost, and repair any damage
caused by such removal at Tenant's sole cost. If the Premises be not surrendered
at the end of the term or sooner termination of this Lease, Tenant shall
indemnify Landlord against loss or liability resulting from the delay by Tenant
in so surrendering the Premises including, without limitation, any claims made
by any succeeding tenant founded on such delay. Nothing contained herein shall
be construed as an extension of the term hereof or as a consent of Landlord to
any holding over by Tenant. The voluntary or other surrender of this Lease or
the Premises by Tenant or a mutual cancellation of this Lease shall not work as
a merger and, at the option of Landlord, shall either terminate all or any
existing subleases or subtenancies or operate as an assignment to Landlord of
all or any such subleases or subtenancies.
6. ALTERATIONS AND ADDITIONS Tenant shall not make, or suffer to be made, any
alteration or addition to the Premises, or any part thereof, without the written
consent of Landlord first had and obtained by Tenant (such consent not to be
unreasonably withheld), but at the cost of Tenant, and any addition to, or
alteration of, the Premises, except moveable furniture and trade fixtures, shall
at once become a part of the Premises and belong to Landlord. Landlord reserves
the right to approve all contractors and mechanics proposed by Tenant to make
such alterations and additions. Tenant shall retain title to all moveable
furniture and trade fixtures placed in the Premises. All heating, lighting,
electrical, airconditioning, floor to ceiling partitioning, drapery, carpeting,
and floor installations made by Tenant, together with all property that has
become an integral part of the Premises, shall not be deemed trade fixtures.
Tenant agrees that it will not proceed to make such alteration or additions,
without having obtained consent from Landlord to do so, and until five (5) days
from the receipt of such consent, in order that Landlord may post appropriate
notices to avoid any liability to contractors or material suppliers for payment
for Tenant's improvements. Tenant will at all times permit such notices to be
posted and to remain posted until the completion of work. Tenant shall, if
required by Landlord, secure at Tenant's own cost and expense, a completion and
lien indemnity bond, satisfactory to Landlord, for such work. Tenant further
covenants and agrees that any mechanic's lien filed against the Premises for
work claimed to have been done for, or materials claimed to have been furnished
to Tenant, will be discharged by Tenant, by bond or otherwise, within ten (10)
days after the filing thereof, at the cost and expense of Tenant. Any exceptions
to the foregoing must be made in writing and executed by both Landlord and
Tenant.
7. TENANT MAINTENANCE Tenant shall, at its sole cost and expense, keep and
maintain the Premises (including appurtenances) and every part thereof in a high
standard of maintenance and repair, and in good and sanitary condition. Tenant's
maintenance and repair responsibilities herein referred to include, but are not
limited to, janitorization, plumbing systems within the non-common areas of the
Premises (such as water and drain lines, sinks), electrical systems within the
non-common areas of the Premises (such as outlets, lighting fixtures, lamps,
bulbs, tubes, ballasts), heating and airconditioning controls within the
non-common areas of the Premises (such as mixing boxes, thermostats, time
clocks, supply and return grills), all interior improvements within the premises
including but not limited to: wall coverings, window coverings, acoustical
ceilings, vinyl tile, carpeting, partitioning, doors (both interior and
exterior, including closing mechanisms, latches, locks), and all other interior
improvements of any nature whatsoever. Tenant agrees to provide carpet shields
under all rolling chairs or to otherwise be responsible for wear and tear of the
carpet caused by such rolling chairs if such wear and tear exceeds that caused
by normal foot traffic in surrounding areas. Areas of excessive wear shall be
replaced at Tenant's sole expense upon Lease termination.
9. TAXES
A. As Additional Rent and in accordance with Paragraph 4D of this Lease,
Tenant shall pay to Landlord, or if Landlord so directs, directly to the Tax
Collector, all Real Property Taxes relating to the Premises. In the event the
Premises leased hereunder consist of only a portion of the entire tax parcel,
Tenant shall pay to Landlord Tenant's proportionate share of such real estate
taxes allocated to the leased Premises by square footage or other reasonable
basis as calculated and determined by Landlord. If the tax billing pertains 100%
to the leased Premises, and Landlord chooses to have Tenant pay said real estate
taxes directly to the Tax Collector, then in such event it shall be the
responsibility of Tenant to obtain the tax and assessment bills and pay, prior
to delinquency, the applicable real property taxes and assessments pertaining to
the leased Premises, and failure to receive a bill for taxes and/or assessments
shall not provide a basis for cancellation of or nonresponsibility for payment
of penalties for nonpayment or late payment by Tenant. The term "Real Property
Taxes", as used herein, shall mean (1) all taxes, assessments, levies and other
charges of any kind or nature whatsoever, general and special, foreseen and
unforeseen (including all installments of principal and interest required to pay
any general or special assessments for public improvements and any increases
resulting from reassessments caused by any change in ownership of the Premises)
now or hereafter imposed by any governmental or quasi-governmental authority or
special district having the direct or indirect power to tax or levy assessments,
which are levied or assessed against, or with respect to the value, occupancy or
use of, all or any portion of the Premises (as now constructed or as may at any
time hereafter be constructed, altered, or otherwise changed) or Landlord's
interest therein; any improvements located within the Premises (regardless of
ownership); the fixtures, equipment and other property of Landlord, real or
personal, that are an integral part of and located in the Premises; or parking
areas, public utilities, or energy within the Premises; (ii) all charges, levies
or fees imposed by reason of environmental regulation or other governmental
control of the Premises; and (iii) all costs and fees (including
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reasonable attorneys' fees) Incurred by Landlord in reasonably contesting any
Real Property Tax and in negotiating with public authorities as to any Real
Property Tax. If at any time during the term of this Lease the taxation or
assessment of the Premises prevailing as of the commencement date of this Lease
shall be altered so that in lieu of or in addition to any Real Property Tax
described above there shall be levied, assessed or imposed (whether by reason of
a change in the method of taxation or assessment, creation of a new tax or
charge, or any other cause) an alternate or additional tax or charge (i) on the
value, use or occupancy of the Premises or Landlord's interest therein or (ii)
on or measured by the gross receipts, income or rentals from the Premises, on
Landlord's business of leasing the Premises, or computed in any manner with
respect to the operation of the Premises, then any such tax or charge, however
designated, shall be included within the meaning of the term "Real Property
Taxes" for purposes of this Lease. If any Real Property Tax is based upon
property or rents unrelated to the Premises, then only that part of such real
Property Tax that is fairly allocable to the Premises shall be included within
the meaning of the term "Real Property Taxes". Notwithstanding the foregoing,
the term "Real Property Taxes" shall not include estate, inheritance, gift or
franchise taxes of Landlord or the federal or state net income tax imposed on
Landlord's income from all sources. The term "Real Estate Taxes" shall also
include supplemental taxes related to the period of Tenant's Lease Term whenever
levied, including any such taxes that may be levied after the Lease Term has
expired.
B. TAXES ON TENANT'S PROPERTY Tenant shall be liable for and shall pay ten
days before delinquency, taxes levied against any personal property or trade
fixtures placed by Tenant in or about the Premises. If any such taxes on
Tenant's personal property or trade fixtures are levied against Landlord or
Landlord's property or if the assessed value of the Premises is increased by the
inclusion therein of a value placed upon such personal property or trade
fixtures of Tenant and if Landlord, after written notice to Tenant, pays the
taxes based on such increased assessment, which Landlord shall have the right to
do regardless of the validity thereof, but only under proper protest if
requested by Tenant, Tenant shall upon demand, as the case may be, repay to
Landlord the taxes so levied against Landlord, or the proportion of such taxes
resulting from such increase in the assessment; provided that in any such event
Tenant shall have the right, in the name of Landlord and with Landlord's full
cooperation, to bring suit in any court of competent jurisdiction to recover the
amount of any such taxes so paid under protest, and any amount so recovered
shall belong to Tenant.
10. LIABILITY INSURANCE Tenant, at Tenant's expense, agrees to keep in force
during the term of this Lease a policy of commercial general liability
insurance with combined single limit coverage of not less than Two Million
Dollars ($2,000,000) per occurrence for bodily injury and property damage
occurring in, on or about the Premises, including parking and landscaped
areas. Such insurance shall be primary and noncontributory as respects any
insurance carried by Landlord. The policy or policies effecting such
insurance, shall name Landlord as additional insureds, and shall insure any
liability of Landlord, contingent or otherwise, as respects acts or omissions
of Tenant, its agents, employees or invitees or otherwise by any conduct or
transactions of any of said persons in or about or concerning the Premises,
including any failure of Tenant to observe or perform any of its obligations
hereunder; shall be issued by an insurance company admitted to transact
business in the State of California; and shall provide that the insurance
effected thereby shall not be canceled, except upon thirty (30) days' prior
written notice to Landlord. A certificate of insurance of said policy shall
be delivered to Landlord. If during the term of this Lease, in the considered
opinion of Landlord's Lender, insurance advisor, or counsel, the amount of
insurance described in this Paragraph 10 is not adequate, Tenant agrees to
increase said coverage to such reasonable amount as Landlord's Lender,
insurance advisor, or counsel shall deem adequate.
11. TENANT'S PERSONAL PROPERTY INSURANCE AND WORKMAN'S COMPENSATION INSURANCE
Tenant shall maintain a policy or policies of fire and property damage insurance
in "all risk" form with a sprinkler leakage endorsement insuring the personal
property, inventory, trade fixtures, and leasehold improvements within the
leased Premises for the full replacement value thereof. The proceeds from any of
such policies shall be used for the repair or replacement of such items so
insured.
Tenant shall also maintain a policy or policies of workman's compensation
insurance and any other employee benefit insurance sufficient to comply with all
laws.
12. PROPERTY INSURANCE Landlord shall purchase and keep in force, and as
Additional Rent and in accordance with Paragraph 4D of this Lease, Tenant shall
pay to Landlord (or Landlord's agent if so directed by Landlord) Tenant's
proportionate share (allocated to the leased Premises by square footage or other
equitable basis as calculated and determined by Landlord) of the deductibles on
insurance claims and the cost of, policy or policies of insurance covering loss
or damage to the Premises (excluding routine maintenance and repairs and
incidental damage or destruction caused by accidents or vandalism for which
Tenant is responsible under Paragraph 7) in the amount of the full replacement
value thereof, providing protection against those perils included within the
classification of "all risks" insurance and flood and/or earthquake insurance,
if available, plus a policy of rental income insurance in the amount of one
hundred (100%) percent of twelve (12) months Basic Rent, plus sums paid as
Additional Rent. If such insurance cost is increased due to Tenant's use of the
Premises, Tenant agrees to pay to Landlord the full cost of such increase.
Tenant shall have no interest in nor any right to the proceeds of any insurance
procured by Landlord for the Premises.
Landlord and Tenant do each hereby respectively release the other, to the
extent of the insurance coverage of the releasing party, from any liability for
loss or damage caused by fire or any of the extended coverage casualties
included in the releasing party's insurance policies, irrespective of the cause
of such fire or casualty; provided, however, that if the insurance policy of
either releasing party prohibits such waiver, then this waiver shall not take
effect until consent to such waiver is obtained. If such waiver is so
prohibited, the insured party affected shall promptly notify the other party
thereof.
13. INDEMNIFICATION Landlord shall not be liable to Tenant and Tenant hereby
waives all claims against Landlord for any injury to or death of any person
or damage to or destruction of property in or about the Premises by or from
any cause whatsoever, including, without limitation, gas, fire, oil,
electricity or leakage of any character from the roof, walls, basement or
other portion of the Premises but excluding, however, the willful misconduct
or negligence of Landlord, its agents, servants, employees, invitees, or
contractors of which negligence Landlord has knowledge and reasonable time to
correct. Except as to injury to persons or damage to property to the extent
arising from the willful misconduct or the negligence of Landlord its agents,
servants, employees, invitees, or contractors. Tenant shall hold Landlord
harmless from and defend Landlord against any and all expenses, including
reasonable attorneys' fees, in connection therewith, arising out of any
injury to or death of any person or damage to or destruction of property
occurring in, on or about the Premises, or any part thereof, from any cause
whatsoever.
14. COMPLIANCE Tenant, at its sole cost and expense, shall promptly comply
with all laws, statutes, ordinances and governmental rules, regulations or
requirements now or hereafter in effect; with the requirements of any board
of fire underwriters or other similar body now or hereafter constituted; and
with any direction or occupancy certificate issued pursuant to law by any
public officer; provided, however, that no such failure shall be deemed a
breach of the provisions if Tenant, immediately upon notification, commences
to remedy or rectify said failure. The judgment of any court of competent
jurisdiction or the admission of Tenant in any action against Tenant, whether
Landlord be a party thereto or not, that Tenant has violated any such law,
statute, ordinance or governmental rule, regulation, requirement, direction
or provision, shall be conclusive of that fact as between Landlord and
Tenant. Tenant shall, at its sole cost and expense, comply with any and all
requirements pertaining to said Premises, of any insurance organization or
company, necessary for the maintenance of reasonable fire and public
liability insurance covering requirements pertaining to said Premises.
15. LIENS Tenant shall keep the Premises free from any liens arising out of
any work performed, materials furnished or obligation incurred by Tenant. In
the event that Tenant shall not, within ten (10) days following the
imposition of such lien, cause the same to be released of record, Landlord
shall have, in addition to all other remedies provided herein and by law, the
right, but no obligation, to cause the same to be released by such means as
it shall deem proper, including payment of the claim giving rise to such
lien. All sums paid by Landlord for such purpose, and all expenses incurred
by it in connection therewith, shall be payable to Landlord by Tenant on
demand with interest at the prime rate of interest as quoted by the Bank of
America.
16. ASSIGNMENT AND SUBLETTING Tenant shall not assign, transfer, or hypothecate
the leasehold estate under this Lease, or any interest therein, and shall not
sublet the Premises, or any part thereof, or any right or privilege appurtenant
thereto, or suffer any other person or entity to occupy or use the Premises, or
any portion thereof, without, in each case, the prior written consent of
Landlord which consent will not be unreasonably withheld. As a condition for
granting this consent to any assignment, transfer, or subletting, Landlord shall
require that (i) the sublease be a triple net sublease and that the basic rent
due under any such sublease be no less than the then current market rate with
annual increases at the then prevailing market rate, and (ii) Tenant to pay
Landlord, as Additional Rent, all rents and/or additional consideration due
Tenant from its assignees, transferees, or subtenants in excess of the Rent
payable by Tenant to Landlord hereunder for the assigned, transferred and/or
subleased space ("Excess Rent"). Tenant shall, by thirty (30) days written
notice, advise Landlord of its intent to assign or transfer Tenant's interest in
the Lease or sublet the Premises or any portion thereof for any part of the term
hereof. Within thirty (30) days after receipt of said written notice, Landlord
may, in its sole discretion, elect to terminate this Lease as to the portion of
the Premises described in Tenant's notice on the date specified in Tenant's
notice by giving written notice of such election to terminate. If no such notice
to terminate is given to Tenant within said thirty (30) day period, Tenant may
proceed to locate an acceptable sublessee, assignee, or other transferee from
presentment to Landlord for Landlord's approval, all in accordance with the
terms, covenants, and conditions of this paragraph 16. If Tenant intends to
sublet the entire Premises and Landlord elects to terminate this Lease, this
Lease shall be terminated on the date specified in Tenant's notice. If, however,
this Lease shall terminate pursuant to the foregoing with respect to less than
all the Premises, the rent, as defined and reserved hereinabove shall be
adjusted on a pro rata basis to the number of square feet retained by Tenant,
and this Lease as so amended shall continue in full force and effect. In the
event Tenant is allowed to assign, transfer or sublet the whole or any part of
the Premises, with the prior written
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consent of Landlord, no assignee, transferee or subtenant shall assign or
transfer this Lease, either in whole or in part, or sublet the whole or any part
of the Premises, without also having obtained the prior written consent of
Landlord XXX. A consent of Landlord to one assignment, transfer, hypothecation,
subletting, occupation or use by any other person shall not release Tenant from
any of Tenant's obligations hereunder or be deemed to be a consent to any
subsequent similar or dissimilar assignment, transfer, hypothecation,
subletting, occupation or use by any other person. Any such assignment,
transfer, hypothecation, subletting, occupation or use without such consent
shall be void and shall constitute a breach of this Lease by Tenant and shall,
at the option of Landlord exercised by written notice to Tenant, terminate this
Lease. The leasehold estate under this Lease shall not, nor shall any interest
therein, by assignable for any purpose by operation of law without the written
consent of Landlord. As a condition to its consent, Landlord shall require
Tenant to pay all expenses in connection with the assignment, and Landlord shall
require Tenant's assignee or transferee (or other assignees or transferees) to
assume in writing all of the obligations under this Lease and for Tenant to
remain liable to Landlord under the Lease. Notwithstanding the above, in no
event will Landlord consent to a sub-sublease.
17. SUBORDINATION AND MORTGAGES In the event Landlord's title or leasehold
interest is now or hereafter encumbered by a deed of trust, upon the interest of
Landlord in the land and buildings in which the demised Premises are located, to
secure a loan from a lender (hereinafter referred to as "Lender") to Landlord,
Tenant shall, at the request of Landlord or Lender, execute in writing an
agreement subordinating its rights under this Lease to the lien of such deed of
trust, or, if so requested, agreeing that the lien of Lender's deed of trust
shall be or remain subject and subordinate to the rights of Tenant under this
Lease. Notwithstanding any such subordination, Tenant's possession under this
Lease shall not be disturbed if Tenant is not in default and so long as Tenant
shall pay all rent and observe and perform all of the provisions set forth in
this Lease.
18. ENTRY BY LANDLORD Landlord reserves, and shall at all reasonable times
after at least 24 hours notice (except in emergencies) have, the right to
enter the Premises to inspect them; perform any services to be provided by
Landlord hereunder; to make repairs or provide any services to a contiguous
tenant(s); to submit the Premises to prospective purchasers, mortgagers or
tenants; to post notices of nonresponsibility; and to alter, improve or
repair the Premises or other parts of the building, all without abatement of
rent, and may erect scaffolding and other necessary structures in or through
the Premises where reasonably required by the character of the work to be
performed; provided, however that the business of Tenant shall be interfered
with to the least extent that is reasonably practical. Any entry to the
Premises by Landlord for the purposes provided for herein shall not under any
circumstances be construed or deemed to be a forcible or unlawful entry into
or a detainer of the Premises or an eviction, actual or constructive, of
Tenant from the Premises or any portion thereof.
19. BANKRUPTCY AND DEFAULT The commencement of a bankruptcy action or
liquidation action or reorganization action or insolvency action or an
assignment of or by Tenant for the benefit of creditors, or any similar
action undertaken by Tenant, or the insolvency of Tenant, shall, at
Landlord's option, constitute a breach of this Lease by Tenant. If the
trustee or receiver appointed to serve during a bankruptcy, liquidation,
reorganization, insolvency or similar action elects to reject Tenant's
unexpired Lease, the trustee or receiver shall notify Landlord in writing of
its election within thirty (30) days after an order for relief in a
liquidation action or within thirty (30) days after the commencement of any
action.
Within thirty (30) days after court approval of the assumption of this
Lease, the trustee or receiver shall cure (or provide adequate assurance to
the reasonable satisfaction of Landlord that the trustee or receiver shall
cure) any and all previous defaults under the unexpired Lease and shall
compensate Landlord for all actual pecuniary loss and shall provide adequate
assurance of future performance under said Lease to the reasonable
satisfaction of Landlord. Adequate assurance of future performance, as used
herein, includes, but shall not be limited to: (i) assurance of source and
payment of rent, and other consideration due under this Lease; (ii) assurance
that the assumption or assignment of this Lease will not breach substantially
any provision, such as radius, location, use, or exclusivity provision, in
any agreement relating to the above described Premises.
Nothing contained in this section shall affect the existing right of
Landlord to refuse to accept an assignment upon commencement of or in
connection with a bankruptcy, liquidation, reorganization or insolvency
action or an assignment of Tenant for the benefit of creditors or other
similar act. Nothing contained in this Lease shall be construed as giving
or granting or creating an equity in the demised Premises to Tenant. In no
event shall the leasehold estate under this Lease, or any interest therein,
be assigned by voluntary or involuntary bankruptcy proceeding without the
prior written consent of Landlord. In no event shall this Lease or any rights
or privileges hereunder be an asset of Tenant under any bankruptcy,
insolvency or reorganization proceedings.
The failure to perform or honor any covenant, condition or representation
made under this Lease shall constitute a default hereunder by Tenant upon
expiration of the appropriate grace period hereinafter provided. Tenant shall
have a period of five (5) days from the date of written notice from Landlord
within which to cure any default in the payment of rental or adjustment
thereto. Tenant shall have a period of thirty (30) days from the date of the
written notice from Landlord within which to cure any other default under
this Lease. Upon an uncured default of this Lease by Tenant, Landlord shall
have the following rights and remedies in addition to any other rights or
remedies available to Landlord at law or in equity:
(a) The rights and remedies provided for by California Civil Code
Section 1951.2, including but not limited to, recovery of the worth at the time
of award of the amount by which the unpaid rent for the balance of the term
after the time of award exceeds the amount of rental loss for the same period
that Tenant proves could be reasonably avoided, as computed pursuant to
subsection (b) of said Section 1951.2. Any proof by Tenant under subparagraphs
(2) and (3) of Section 1951.2 of the California Civil Code of the amount of
rental loss that could be reasonably avoided shall be made in the following
manner: Landlord and Tenant shall each select a licensed real estate broker in
the business of renting property of the same type and use as the Premises and in
the same geographic vicinity. Such two real estate brokers shall select a third
licensed real estate broker, and the three licensed real estate brokers so
selected shall determine the amount of the rental loss that could be reasonably
avoided from the balance of the term of this Lease after the time of award. The
decision of the majority of said licensed real estate brokers shall be final and
binding upon the parties hereto.
(b) The rights and remedies provided by California Civil Code Section
which allows Landlord to continue the Lease in effect and to enforce all of its
rights and remedies under this Lease, including the right to recover rent as it
becomes due, for so long as Landlord does not terminate Tenant's right to
possession; acts of maintenance or preservation, efforts to relet the Premises,
or the appointment of a receiver upon Landlord's initiative to protect its
interest under this Lease shall not constitute a termination of Tenant's right
to possession.
(c) The right to terminate this Lease by giving notice to Tenant in
accordance with applicable law.
(d) To the extent permitted by law, the right and power to enter the
Premises and remove therefrom all persons and property, to store such
property in a public warehouse or elsewhere at the cost of and for the
account of Tenant, and to sell such property and apply such proceeds
therefrom pursuant to applicable California law. Landlord may from time to
time sublet the Premises or any part thereof for such term or terms (which
may extend beyond the term of this Lease) and at such rent and such other
terms as Landlord in its sole discretion may deem advisable, with the right
to make alterations and repairs to the Premises. Upon each subletting, (i)
Tenant shall be immediately liable to pay Landlord, in addition to
indebtedness other that rent due hereunder, the cost of such subletting,
including, but not limited to, reasonable attorney's fees, and any real
estate commissions actually paid, and the costs of such alterations and
repairs incurred by Landlord and the amount, if any, by which the rent
hereunder for the period of such subletting (to the extent such period does
not exceed the term hereof) exceeds the amount to be paid as rent for the
Premises for such period or (ii) at the option of Landlord, rents received
from such subletting shall be applied first to payment of indebtedness other
than rent due hereunder from Tenant to Landlord; second, to the payment of
any costs of such subletting and of such alterations and repairs; third to
payment of rent due and unpaid hereunder; and the residue, if any, shall be
held by Landlord and applied in payment of future rent as the same becomes
due hereunder. If Tenant has been credited with any rent to be received by
such subletting under option (i) and such rent shall not be promptly paid to
Landlord by the subtenant(s), or if such rentals received from such
subletting under option (ii) during any month be less than that to be paid
during that month by Tenant hereunder, Tenant shall pay any such deficiency
to Landlord. Such deficiency shall be calculated and paid monthly. No taking
possession of the Premises by Landlord, shall be construed as an election on
its part to terminate this Lease unless a written notice of such intention be
given to Tenant. Notwithstanding any such subletting without termination,
Landlord may at any time hereafter elect to terminate this Lease for such
previous breach.
(e) The right to have a receiver appointed for Tenant upon application
by Landlord, to take possession of the Premises and to apply any rental
collected from the Premises and to exercise all other rights and remedies
granted to Landlord pursuant to subparagraph d, above.
20. ABANDONMENT Tenant shall not vacate or abandon the Premises at any time
during the term of this Lease, and if Tenant shall abandon, vacate or surrender
said Premises, or be dispossessed by the process of law, or otherwise, any
personal property belonging to Tenant and left on the Premises shall be deemed
to be abandoned, at the option of Landlord, except such property as may be
mortgaged to Landlord.
21. DESTRUCTION In the event the Premises are destroyed in whole or in part from
any cause, except for routine maintenance and repairs and incidental
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damage and destruction caused from vandalism and accident for which Tenant is
responsible under Paragraph 7, Landlord may, at its option:
(a) Rebuild or restore the Premises to their condition prior to the damage
or destruction, or
(b) Terminate this Lease. (providing that the Premises is damaged to the
extent of 33 1/3% of the replacement cost)
If Landlord does not give Tenant notice in writing within thirty (30) days
from the destruction of the Premises of its election to either rebuild and
restore them, or to terminate this Lease, Landlord shall be deemed to have
elected to rebuild or restore them, in which event Landlord agrees, at its
expense except for any deductible, which is the responsibility of Tenant,
promptly to rebuild or restore the Premises to their condition prior to the
damages or destruction. Tenant shall be entitled to a reduction in rent from
the date of such damage or destruction, provided Tenant is not using any
portion of such damaged area, while such repair is being made in the
proportion that the area of the Premises rendered untenantable by such damage
bears to the total area of the Premises. If Landlord initially estimates that
the rebuilding or restoration will exceed 180 days or if Landlord does not
complete the rebuilding or restoration within one hundred eighty (180) days
following the date of destruction (such period of time to be extended for
delays caused by the fault or neglect of Tenant or because of Acts of God,
acts of public agencies, labor disputes, strikes, fires, freight embargos,
rainy or stormy weather, inability to obtain materials, supplies or fuels,
acts of contractors or subcontractors, or delay of the contractors or
subcontractors due to such causes or other contingencies beyond the control
of Landlord), then Tenant shall have the right to terminate this Lease by
giving fifteen (15) days prior written notice to Landlord, Notwithstanding
anything herein to the contrary, Landlord's obligation to rebuild or restore
shall be limited to the building and interior improvements constructed by
Landlord as they existed as of the commencement date of the Lease and shall
not include restoration of Tenant's trade fixtures, equipment, merchandise,
or any improvements, alterations or additions made by Tenant to the Premises,
which Tenant shall forthwith replace or fully repair at Tenant's sole cost
and expense provided this Lease is not cancelled according to the provisions
above.
Unless this Lease is terminated pursuant to the foregoing provisions, this
Lease shall remain in full force and effect. Tenant hereby expressly waives
the provisions of Section 1932, Subdivision 2, in Section 1933, Subdivision 4
of the California Civil Code.
In the event that the building in which the Premises are situated is
damaged or destroyed to the extent of not less than 33 1/3% of the
replacement cost thereof, Landlord may elect to terminate this Lease, whether
the Premises be injured or not. Notwithstanding anything to the contrary
herein, Landlord may terminate this Lease in the event of an uninsured event
or if insurance proceeds are insufficient to cover one hundred percent of the
rebuilding costs net of the deductible
22. EMINENT DOMAIN If all or any part of the Premises shall be taken by any
public or quasi-public authority under the power of eminent domain or
conveyance in lieu thereof, this Lease shall terminate as to any portion of
the Premises so taken or conveyed on the date when title vests in the
condemnor, and Landlord shall be entitled to any and all payment, income,
rent, award, or any interest therein whatsoever which may be paid or made in
connection with such taking or conveyance, and Tenant shall have no claim
against Landlord or otherwise for the value of any unexpired term of this
Lease. Notwithstanding the foregoing paragraph, any compensation specifically
awarded to Tenant for loss of business, Tenant's personal property, moving
cost or loss of good will, shall be and remain the property of Tenant.
If any action or proceeding is commenced for such taking of the Premises
or any part thereof, or if Landlord is advised in writing by any entity or
body having the right or power of condemnation of its intention to condemn
the premises or any portion thereof, then Landlord shall have the right to
terminate this Lease by giving Tenant written notice thereof within sixty
(60) days of the date of receipt of said written advice, or commencement of
said action or proceeding, or taking conveyance, which termination shall take
place as of first to occur of the last day of the calendar month next
following the month in which such notice is given or the date on which title
to the Premises shall vest in the condemnor.
In the event of such a partial taking or conveyance of the Premises, if
the portion of the Premises taken or conveyed is so substantial that the
Tenant can no longer reasonably conduct its business, Tenant shall have the
privilege of terminating this Lease within sixty (60) days from the date of
such taking or conveyance, upon written notice to Landlord of its intention
so to do, and upon giving of such notice this Lease shall terminate on the
last day of the calendar month next following the month in which such notice
is given, upon payment by Tenant of the rent from the date of such taking or
conveyance to the date of termination.
If a portion of the Premises be taken by condemnation or conveyance in
lieu thereof and neither Landlord nor Tenant shall terminate this Lease as
provided herein, this Lease shall continue in full force and effect as to the
part of the Premises not so taken or conveyed, and the rent herein shall be
apportioned as of the date of such taking or conveyance so that thereafter
the rent to be paid by Tenant shall be in the ratio that the area of the
portion of the Premises not so taken or conveyed bears to the total area of
the Premises prior to such taking.
23. SALE OR CONVEYANCE BY LANDLORD In the event of a sale or conveyance of
the Premises or any interest therein, by any owner of the reversion then
constituting Landlord, the transferor shall thereby be released from any
further liability upon any of the terms, covenants or conditions (express or
implied) herein contained in favor of Tenant, and in such event, insofar as
such transfer is concerned, Tenant agrees to look solely to the
responsibility of the successor in interest of such transferor in and to the
Premises and this Lease. This Lease shall not be affected by any such sale or
conveyance, and Tenant agrees to attorn to the successor in interest of such
transferor.
24. ATTORNMENT TO LENDER OR THIRD PARTY In the event the interest of Landlord
in the land and buildings in which the leased Premises are located (whether
such interest of Landlord is a fee title interest or a leasehold interest) is
encumbered by deed of trust, and such interest is acquired by the lender or
any third party through judicial foreclosure or by exercise of a power of
sale at private trustee's foreclosure sale, Tenant hereby agrees to attorn to
the purchaser at any such foreclosure sale and to recognize such purchaser as
the Landlord under this Lease. In the event the lien of the deed of trust
securing the loan from a Lender to Landlord is prior and paramount to the
Lease, this Lease shall nonetheless continue in full force and effect for the
remainder of the unexpired term hereof, at the same rental herein reserved
and upon all the other terms, conditions and covenants herein contained.
25. HOLDING OVER Any holding over by Tenant after expiration or other
termination of the term of this Lease with the written consent of Landlord
delivered to Tenant shall not constitute a renewal or extension of the Lease or
give Tenant any rights in or to the leased Premises except as expressly provided
in this Lease. Any holding over after the expiration or other termination of the
term of this Lease, with the consent of Landlord, shall be construed to be a
tenancy from month to month, on the same terms and conditions herein specified
insofar as applicable except that the monthly Basic Rent shall be increased to
an amount equal to one hundred fifty (150%) percent of the monthly Basic Rent
required during the last month of the Lease term.
26. CERTIFICATE OF ESTOPPEL Tenant shall at any time upon not less than ten
(10) days' prior written notice from Landlord execute, acknowledge and
deliver to Landlord a statement in writing (i) certifying that this Lease is
unmodified and in full force and effect (or, if modified, stating the nature
of such modification and certifying that this Lease, as so modified, is in
full force and effect) and the date to which the rent and other charges are
paid in advance, if any, and (ii) acknowledging that there are not, to
Tenant's knowledge, and any uncured defaults on the part of Landlord
hereunder, or specifying such defaults, if any, are claimed. Any such
statement may be conclusively relied upon by any prospective purchaser or
encumbrancer of the Premises. Tenant's failure to deliver such statement
within such time shall be conclusive upon Tenant that this Lease is in full
force and effect, without modification except as may be represented by
Landlord; that there are no uncured defaults in Landlord's performance, and
that not more than one month's rent has been paid in advance.
27. CONSTRUCTION CHANGES It is understood that the description of the
Premises and the location of ductwork, plumbing and other facilities therein
are subject to such minor changes as Landlord or Landlord's architect
determines to be desirable in the course of construction of the Premises, and
no such changes shall affect this Lease or entitle Tenant to any reduction of
rent hereunder or result in any liability of Landlord to Tenant. Landlord
does not guarantee the accuracy of any drawings supplied to Tenant and
verification of the accuracy of such drawings rests with Tenant.
28. RIGHT OF LANDLORD TO PERFORM All terms, covenants and conditions of this
Lease to be performed or observed by Tenant shall be performed or observed by
Tenant at Tenant's sole cost and expense and without any reduction of rent. If
Tenant shall fail to pay any sum of money, or other rent, required to be paid by
it hereunder and such failure shall continue for five (5) days after written
notice by Landlord, or shall fail to perform any other term or covenant
hereunder on its part to be performed, and such failure shall continue for
thirty (30) days after written notice thereof by Landlord. Landlord, without
waiving or releasing Tenant from any obligations of Tenant hereunder, may, but
shall not be obligated to, make any such payment or perform any such other term
or covenant on Tenant's part to be performed. All sums so paid by Landlord and
all necessary costs of such performance by Landlord together with interest
thereon at the rate of the prime rate of interest per annum as quoted by the
Bank of America from the date of such payment or performance by Landlord, shall
be paid (and Tenant covenants to make such payment) to Landlord on demand by
Landlord, and Landlord shall have (in addition to any other right or remedy of
Landlord) the same rights and remedies in the event of nonpayment by Tenant in
the case of failure by Tenant in the payment of rent hereunder.
29. ATTORNEY'S FEES.
A. In the event that either Landlord or Tenant should bring suit for the
possession of the Premises, for the recovery of any sum due under this Lease, or
because of the breach of any provision of this Lease, or for any other relief
against the other party hereunder, then all costs and expenses, including
reasonable attorneys' fees,
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incurred by the prevailing party therein shall be paid by the other party, which
obligation on the part of the other party shall be deemed to have accrued on the
date of the commencement of such action and shall be enforceable whether or not
the action is prosecuted to judgement.
(B) Should Landlord be named as a defendant in any suit brought against
Tenant in connection with or arising out of Tenant's occupancy hereunder, Tenant
shall pay to Landlord its costs and expenses incurred in such suit, including a
reasonable attorney's fee.
33. WAIVER The waiver by either party of the other party's failure to perform or
observe any term, covenant or condition herein contained to be performed or
observed by such wavering party shall not be deemed to be a waiver of such term,
covenant or condition or of any subsequent failure of the party failing to
perform or observe the same or any other such term, covenant or condition
therein contained, and no custom or practice which may develop between the
parties hereto during the term hereof shall be deemed a waiver of, or in any way
affect, the right of either party to insist upon performance and observance by
the other party in strict accordance with the terms hereof.
31. NOTICES All notices, demands, requests, advices or designations which may
be or are required to be given by either party to the other hereunder shall
be in writing. All notices, demands, requests, advices or designations by
Landlord to Tenant shall be sufficiently given, made or delivered if
personally served on Tenant by leaving the same at the Premises or if sent by
United States certified or registered mail, postage prepaid, addressed to
Tenant at the Premises. All notices demands, requests, advices or
designations by Tenant to Landlord shall be sent by the United States
certified or registered mail, postage prepaid, addressed to Landlord at its
offices at Peery/Arrillaga, 2560 Mission College Blvd., Suite 101, Santa
Clara, CA 95054 Each notice, request, demand, advice or designation referred
to in this paragraph shall be deemed received on the date of the personal
service or mailing thereof in the manner herein provided, as the case may be.
32. EXAMINATION OF LEASE Submission of this instrument for examination or
signature by Tenant does not constitute a reservation of or option for a lease,
and this instrument is not effective as a lease or otherwise until its execution
and delivery by both Landlord and Tenant.
33. DEFAULT BY LANDLORD Landlord shall not be in default unless Landlord fails
to perform obligations required of Landlord within a reasonable time, but in no
event earlier than thirty (30) days after written notice by Tenant to Landlord
and to the holder of any first mortgage or deed of trust covering the Premises
whose name and address shall have heretofore been furnished to Tenant in
writing, specifying wherein Landlord has failed to perform such obligations;
provided, however, that if the nature of Landlord's obligations is such that
more than thirty (30) days are required for performance, then Landlord shall not
be in default if Landlord commences performance within such thirty (30) day
period and thereafter diligently prosecutes the same to completion.
34. CORPORATE AUTHORITY If Tenant is a corporation, (or a partnership) each
individual executing this Lease on behalf of said corporation (or partnership)
represents and warrants that he is duly authorized to execute and deliver this
Lease on behalf of said corporation (or partnership) in accordance with the
by-laws of said corporation (or partnership in accordance with the partnership
agreement) and that this Lease is binding upon said corporation (or partnership)
in accordance with its terms. If Tenant is a corporation, Tenant shall, within
thirty (30) days after execution of this Lease, deliver to Landlord a certified
copy of the resolution of the Board of Directors of said corporation authorizing
or ratifying the execution of this Lease.
36. LIMITATION OF LIABILITY In consideration of the benefits accruing hereunder,
Tenant and all successors and assigns covenant and agree that, in the event of
any actual or alleged failure, breach or default hereunder by Landlord:
(a) the sole and exclusive remedy shall be against Landlord's
interest in the Premises leased herein;
(b) no partner of Landlord shall be sued or named as party in any
suit or action (except as may be necessary to secure
jurisdiction of the partnership);
(c) no service of process shall be made against any partner of
Landlord (except as may be necessary to secure jurisdiction of
the partnership);
(d) no partner of Landlord shall be required to answer or
otherwise plead to any service of process;
(e) no judgement will be taken against any partner of Landlord;
(f) any judgement taken against any partner of Landlord may be
vacated and set aside at any time without hearing;
(g) no writ of execution will ever be levied against the assets of
any partner of Landlord;
(h) these covenants and agreements are enforceable by both
Landlord and also by any partner of Landlord.
Tenant agrees that each of the foregoing covenants and agreements shall be
applicable to any covenant or agreement either expressly contained in this
Lease or imposed by statute or at common law.
37. SIGNS No sign, placard, picture, advertisement, name or notice shall be
inscribed, displayed or printed or affixed on or to any part of the outside of
the Premises or any exterior windows of the Premises without the written consent
of Landlord first had and obtained and Landlord shall have the right to remove
any such sign, placard, picture, advertisement, name or notice to and at the
expense of Tenant. If Tenant is allowed to print or affix or in any way place a
sign in, on or about the Premises, upon expiration or other sooner termination
of this Lease, Tenant at Tenant's sole cost and expense shall both remove such
sign and repair all damage in such a manner as to restore all aspects of the
appearance of the Premises to the condition prior to the placement of said sign.
All approved signs or lettering on outside doors shall be printed, painted,
affixed or inscribed at the expense of Tenant by a person approved of by
Landlord.
Tenant shall not place anything or allow anything to be placed near the glass
of any window, door partition or wall which may appear unsightly from outside
the Premises.
38. MISCELLANEOUS AND GENERAL PROVISIONS
A. USE OF BUILDING NAME. Tenant shall not, without the written consent of
Landlord, use the name of the building for any purpose other than as the address
of the business conducted by Tenant in the Premises.
Initials: [Illegible]
______________
Initials:
______________
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B. CHOICE OF LAW; SEVERABILITY. This Lease shall in all respects be governed
by and construed in accordance with the laws of the State of California. If any
provision of this Lease shall be invalid, unenforceable or ineffective for any
reason whatsoever, all other provisions hereof shall be and remain in full force
and effect.
C. DEFINITION OF TERMS. The term "Premises" includes the space leased hereby
and any improvements now or hereafter installed therein or attached thereto. The
term "Landlord" or any pronoun used in place thereof includes the plural as well
as the singular and the successors and assigns of Landlord. The term "Tenant" or
any pronoun used in place thereof includes the plural as well as the singular
and individuals, firms, associations, partnerships and corporations, and their
and each of their respective heirs, executors, administrators, successors and
permitted assigns according to the context hereof, and the provisions of this
Lease shall inure to the benefit of and bind such heirs, executors,
administrators, successors and permitted assigns.
The term "person" includes the plural as well as the singular and
individuals, firms, associations, partnerships and corporations. Words used in
any gender include other genders. If there be more than one Tenant the
obligations of Tenant hereunder are joint and several. The paragraph headings of
this Lease are for convenience of reference only and shall have no effect upon
the construction or interpretation of any provisions hereof.
D. TIME OF ESSENCE. Time is of the essence of this Lease and of each and all
of its provisions.
E. QUITCLAIM. At the expiration or earlier termination of this Lease, Tenant
shall execute, acknowledge and deliver to Landlord, within ten (10) days after
written demand from Landlord to Tenant, any quitclaim deed or other document
required by any reputable title company, licensed to operate in the State of
California, to remove the cloud or encumbrance created by this Lease from the
real property of which Tenant's Premises are a part.
F. INCORPORATION OF PRIOR AGREEMENTS; AMENDMENTS. This instrument along with
any exhibit and attachments hereto constitutes the agreement between Landlord
and Tenant relative to the Premises and this agreement and the exhibits and
attachments may be altered, amended or revoked only by an instrument in writing
signed by both Landlord and Tenant. Landlord and Tenant agree hereby that all
prior or contemporaneous oral agreements between and among themselves and their
agents or representatives relative to the leasing of the Premises are merged in
or revoked by this agreement.
G. RECORDING. Neither Landlord nor Tenant shall record this Lease or a short
form memorandum hereof without the consent of the other.
H. AMENDMENTS FOR FINANCING. Tenant further agrees to execute any amendments
required by a lender to enable Landlord to obtain financing, so long as Tenant's
rights hereunder are not substantially affected.
I. ADDITIONAL PARAGRAPHS. Paragraphs 39 through 53 are added hereto and are
included as a part of this Lease.
J. CLAUSES, PLATS, AND RIDERS. Clauses, plats and riders, if any, signed
by Landlord and Tenant and endorsed on or affixed to this Lease are a part
hereof.
K. DIMINUTION OF LIGHT, AIR OR VIEW. Tenant covenants and agrees that no
diminution or shutting off of light, air or view by any structure which may be
hereafter erected (whether or not by Landlord) shall in any way affect his
Lease, entitle Tenant to any reduction of rent hereunder or result in any
liability of Landlord or Tenant.
IN WITNESS WHEREOF, Landlord and Tenant have executed and delivered this
Lease as of the day and year last written below.
LANDLORD: TENANT:
JOHN ARRILLAGA SURVIVOR'S TRUST CIPHERGEN BIOSYSTEMS, INC.,
a California corporation
By By /s/ James H. Stanford
--------------------------------------- ----------------------------
John Arrillaga, Trustee James H. Stanford, Vice
President and Chief
Financial Officer
Date:
------------------------------------
Date: February 3, 2000
--------------------------
RICHARD T. PEERY SEPARATE PROPERTY TRUST
By
--------------------------------------
Richard T. Peery, Trustee
Date:
------------------------------------
Initials: [Illegible]
______________
Initials:
______________
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<PAGE>
Paragraphs 39 through 53 to Lease Agreement dated January 28, 2000, By and
Between the John Arrillaga Survivor's Trust and the Richard T. Peery Separate
Property Trust, as Landlord, and CIPHERGEN BIOSYSTEMS, INC., A CALIFORNIA
CORPORATION, as Tenant for 30,232 PLUS OR MINUS Square Feet of Space Located at
6607 Dumbarton Circle, Suite 200, Fremont, California.
39. BASIC RENT: In accordance with Paragraph 4A herein, the total aggregate sum
of EIGHT MILLION TWO HUNDRED SEVENTY ONE THOUSAND FOUR HUNDRED SEVENTY FIVE AND
20/100 DOLLARS ($8,271,475.20), shall be payable as follows:
On April 1, 2000, the sum of SEVENTY FIVE THOUSAND FIVE HUNDRED EIGHTY
AND NO/100 DOLLARS ($75,580.00) shall be due, and a like sum due on the first
day of each month thereafter, through and including March 1, 2001.
On April 1, 2001, the sum of SEVENTY EIGHT THOUSAND SIX HUNDRED THREE
AND 20/100 DOLLARS ($78,603.20) shall be due, and a like sum due on the first
day of each month thereafter, through and including March 1, 2002.
On April 1, 2002, the sum of EIGHTY ONE THOUSAND SIX HUNDRED TWENTY SIX
AND 40/100 DOLLARS ($81,626.40) shall be due, and a like sum due on the first
day of each month thereafter, through and including March 1, 2003.
On April 1, 2003, the sum of EIGHTY FOUR THOUSAND SIX HUNDRED FORTY
NINE AND 60/100 DOLLARS ($84,649.60) shall be due, and a like sum due on the
first day of each month thereafter, through and including March 1, 2004.
On April 1, 2004, the sum of EIGHTY SEVEN THOUSAND SIX HUNDRED SEVENTY
TWO AND 80/100 DOLLARS ($87,672.80) shall be due, and a like sum due on the
first day of each month thereafter, through and including March 1, 2005.
On April 1, 2005, the sum of NINETY THOUSAND SIX HUNDRED NINETY SIX AND
NO/100 DOLLARS ($90,696.00) shall be due, and a like sum due on the first day of
each month thereafter, through and including March 1, 2006.
On April 1, 2006, the sum of NINETY THREE THOUSAND SEVEN HUNDRED
NINETEEN AND 20/100 DOLLARS ($93,719.20) shall be due, and a like sum due on the
first day of each month thereafter, through and including March 1, 2007.
On April 1, 2007, the sum of NINETY SIX THOUSAND SEVEN HUNDRED FORTY
TWO AND 40/100 DOLLARS ($96,742.40) shall be due, and a like sum due on the
first day of each month thereafter, through and including March 1, 2008; or
until the entire aggregate sum of EIGHT MILLION TWO HUNDRED SEVENTY ONE THOUSAND
FOUR HUNDRED SEVENTY FIVE AND 20/100 DOLLARS ($8,271,475.20) has been paid.
40. "AS-IS" BASIS: Subject only to the Construction Agreement of even date
herewith and to Landlord making the improvements shown on EXHIBIT B to be
attached hereto, it is hereby agreed that the Premises leased hereunder is
leased strictly on an "as-is" basis and in its present condition, and in the
configuration as shown on EXHIBIT B to be attached hereto, and by reference made
a part hereof. Except as noted within said Construction Agreement, it is
specifically agreed between the parties that after Landlord makes the interior
improvements as shown on EXHIBIT B, Landlord shall not be required to make, nor
be responsible for any cost, in connection with any repair, restoration, and/or
improvement to the Premises in order for this Lease to commence, or thereafter,
throughout the Term of this Lease. Notwithstanding anything to the contrary
within this Lease, Landlord makes no warranty or representation of any kind or
nature whatsoever as to the condition or repair of the Premises, nor as to the
use or occupancy which may be made thereof.
41. RULES AND REGULATIONS AND COMMON AREA: Subject to the terms and conditions
of this Lease and such Rules and Regulations as Landlord may from time to time
prescribe, Tenant and Tenant's employees, invitees and customers shall, in
common with other occupants of the Parcel/Building in which the premises are
located, and their respective employees, invitees and customers, and others
entitled to the use thereof, have the non-exclusive right to use the access
roads, parking areas, and facilities provided and designated by Landlord for the
general use and convenience of the occupants of the Parcel/Building in which the
Premises are located, which areas and facilities
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are referred to herein as "Common Area". This right shall terminate upon the
termination of this Lease. Landlord reserves the right from time to time to make
changes in the shape, size, location, amount and extent of Common Area. Landlord
further reserves the right to promulgate such reasonable rules and regulations
relating to the use of the Common Area, and any part or parts thereof, as
Landlord may deem appropriate for the best interests of the occupants of the
Parcel/Building. Such Rules and Regulations may be amended by Landlord from time
to time, with or without advance notice, and all amendments shall be effective
upon delivery of a copy to Tenant. Landlord shall not be responsible to Tenant
for the non-performance by any other tenant or occupant of the Parcel/Building
of any of said Rules and Regulations.
Landlord shall operate, manage and maintain the Common Area. The manner in which
the Common Area shall be maintained and the expenditures for such maintenance
shall be at the discretion of Landlord.
42. EXPENSES OF OPERATION, MANAGEMENT, AND MAINTENANCE OF THE COMMON AREAS OF
THE PARCEL AND BUILDING IN WHICH THE PREMISES ARE LOCATED: As Additional Rent
and in accordance with Paragraph 4D of this Lease, Tenant shall pay to Landlord
Tenant's proportionate share (calculated on a square footage or other equitable
basis as calculated by landlord) of all expenses of operation, management,
maintenance and repair of the Common Areas of the Parcel including, but not
limited to, license, permit, and inspection fees; security; utility charges
associated with exterior landscaping and lighting (including water and sewer
charges); all charges incurred in the maintenance and replacement of landscaped
areas, lakes, parking lots and paved areas (including repairs, replacement,
resealing and restriping), sidewalks, driveways, maintenance, repair and
replacement of all fixtures and electrical, mechanical and plumbing systems;
supplies, materials, equipment and tools; the cost of capital expenditures which
have the effect of reducing operating expenses, provided, however, that in the
event Landlord makes such capital improvements, Landlord may amortize its
investment in said improvements (together with interest at the rate of fifteen
(15%) percent per annum on the unamortized balance) as an operating expense in
accordance with standard accounting practices, provided, that such amortization
is not at a rate greater than the anticipated savings in the operating expenses.
As Additional Rent and in accordance with Paragraph 4D of this Lease, Tenant
shall pay its proportionate share (calculated on a square footage or other
equitable basis as calculated by Landlord) of the cost of operation (including
common utilities), management, maintenance, and repair of the building
(including structural and common areas such as lobbies, restrooms, janitor's
closets, hallways, elevators, mechanical and telephone rooms, stairwells,
entrances, spaces above the ceilings and janitorization of said common areas) in
which the Premises are located. The maintenance items herein referred to
include, but are not limited to, all windows, window frames, plate glass,
glazing, truck doors, main plumbing systems of the building (such as water drain
lines, sinks, toilets, faucets, drains, showers and water fountains), main
electrical systems (such as panels and conduits), heating and air-conditioning
systems (such as compressors, fans, air handlers, ducts, boilers, heaters),
structural elements and exterior surfaces of the building; store fronts, roof,
downspouts, building common area interiors (such as wall coverings, window
coverings, floor coverings and partitioning), ceilings, building exterior doors,
skylights (if any), automatic fire extinguishing systems, and elevators (if
any); license, permit and inspection fees; security, supplies, materials,
equipment and tools; the cost of capital expenditures which have the effect of
reducing operating expenses, provided, however, that in the event Landlord makes
such capital improvements, Landlord may amortize its investment in said
improvements (together with interest at the rate of fifteen (15%) percent per
annum on the unamortized balance) as an operating expense in accordance with
standard accounting practices, provided, that such amortization is not at a rate
greater than the anticipated savings in the operating expenses. Tenant hereby
waives all rights hereunder, and benefits of, subsection 1 of Section 1932 and
Sections 1941 and 1942 of the California Civil Code and under any similar law,
statute or ordinance now or hereafter in effect.
"Additional Rent" as used herein shall not include Landlord's debt repayments;
interest on charges, expenses directly or indirectly incurred by Landlord for
the benefit of any other tenant; cost for the installation of partitioning or
any other tenant improvements; cost of attracting tenants; depreciation;
interest; or executive salaries.
43. UTILITIES OF THE BUILDING IN WHICH THE PREMISES ARE LOCATED: As Additional
Rent and in accordance with Paragraph 4D of this Lease Tenant shall pay its
proportionate share (calculated on a square footage or other equitable basis as
calculated by Landlord) of the cost of all utility charges such as water, gas,
electricity, (telephone, telex and other electronic communications service, if
applicable) sewer service, waste pick-up and any other utilities, materials or
services
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furnished directly to the building in which the Premises are located, including,
without limitation, any temporary or permanent utility surcharge or other
exactions whether or not hereinafter imposed.
Landlord shall not be liable for and Tenant shall not be entitled to any
abatement or reduction of rent by reason of any interruption or failure of
utility services to the Premises when such interruption or failure is caused by
accident, breakage, repair, strikes, lockouts, or other labor disturbances or
labor disputes of any nature, or by any other cause, similar or dissimilar,
beyond the reasonable control of Landlord.
Provided that Tenant is not in default in the performance or observance of any
of the terms, covenants or conditions of this Lease to be performed or observed
by it, Landlord shall furnish to the Premises between the hours of 8:00 a.m. and
6:00 p.m., Mondays through Fridays (holidays excepted) and subject to the rules
and regulations of the Common Area hereinbefore referred to, reasonable
quantities of water, gas and electricity suitable for the intended use of the
Premises and heat and air-conditioning required in Landlord's judgment for the
comfortable use and occupation of the Premises for such purposes. Tenant agrees
that at all times it will cooperate fully with Landlord and abide by all
regulations and requirements that Landlord may prescribe for the proper
functioning and protection of the building heating, ventilating and
air-conditioning systems. Whenever heat generating machines, equipment, or any
other devices (including exhaust fans) are used in the Premises by Tenant which
affect the temperature or otherwise maintained by the air-conditioning system,
Landlord shall have the right to install supplementary air-conditioning units in
the Premises and the cost thereof, including the cost of installation and the
cost of operation and maintenance thereof, shall be paid by Tenant to Landlord
upon demand by Landlord. Tenant will not, without the written consent of
Landlord, use any apparatus or device in the Premises (including, without
limitation), electronic data processing machines or machines using current in
excess of 110 Volts which will in any way increase the amount of electricity,
gas, water or air-conditioning usually furnished or supplied to premises being
used as general office space, or connect with electric current (except through
existing electrical outlets in the Premises), or with gas or water pipes any
apparatus or device for the purposes of using electric current, gas, or water.
If Tenant shall require water, gas, or electric current in excess of that
usually furnished or supplied to premises being used as general office space,
Tenant shall first obtain the written consent of Landlord, which consent shall
not be unreasonably withheld and Landlord may cause an electric current, gas or
water meter to be installed in the Premises in order to measure the amount of
electric current, gas or water consumed for any such excess use. The cost of any
such meter and of the installation, maintenance and repair thereof, all charges
for such excess water, gas and electric current consumed (as shown by such
meters and at the rates then charged by the furnishing public utility); and any
additional expense incurred by Landlord in keeping account of electric current,
gas, or water so consumed shall be paid by Tenant, and Tenant agrees to pay
Landlord therefor promptly upon demand by Landlord.
44. PARKING: Tenant shall have the right to the nonexclusive use of one hundred
seventeen (117) parking spaces in the common parking area of the building.
Tenant agrees that Tenant, Tenant's employees, agents, representatives, and/or
invitees shall not use parking spaces in excess of said 117 parking spaces
allocated to Tenant hereunder. Landlord shall have the right, at Landlord's sole
discretion, to specifically designate the location of Tenant's parking spaces
within the common parking area of the building in the event of a dispute among
the tenants occupying the building referred to herein, in which event Tenant
agrees that Tenant, Tenant's employees, agents, representatives and/or invitees
shall not use any parking spaces other than those parking spaces specifically
designated by Landlord for Tenant's use. Said parking spaces, if specifically
designated by Landlord to Tenant, may be relocated by Landlord at any time, and
from time to time. Landlord reserves the right, at Landlord's sole discretion,
to rescind any specific designation of parking spaces, thereby returning
Tenant's parking spaces to the common parking area. Landlord shall give Tenant
written notice of any change in Tenant's parking spaces. Tenant shall not, at
any time, park, or permit to be parked, any trucks or vehicles adjacent to the
loading area so as to interfere in any way with the use of such areas, nor shall
Tenant, at any time, park or permit the parking of Tenant's trucks and other
vehicles or the trucks and vehicles of Tenant's suppliers or others, in any
portion of the common areas not designated by Landlord for such use by Tenant.
Tenant shall not park nor permit to be parked, any inoperative vehicles or
equipment on any portion of the common parking area or other common areas of the
building. Tenant agrees to assume responsibility for compliance by its employees
with the parking provision contained herein. If Tenant or its employees park in
other than designated parking areas, then Landlord may charge Tenant, as an
additional charge, and Tenant agrees to pay Ten Dollars ($10.00) per day for
each day or partial day each such vehicle is parking in any area other than that
designated. Tenant hereby authorizes Landlord, at Tenant's sole expense, to tow
away from the building any vehicle belonging to Tenant or Tenant's employees
parked in violation of these provisions, or to attach violation stickers or
notices to such vehicles. Tenant shall use the parking area for vehicle parking
only and shall not use the parking areas for storage.
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45. ASSESSMENT CREDITS: The demised property herein may be subject to a special
assessment levied by the City of Fremont as part of an Improvement District. As
a part of said special assessment proceedings (if any), additional bonds were or
may be sold and assessments were or may be levied to provide for construction
contingencies and reserve funds. Interest shall be earned on such funds created
for contingencies and on reserve funds which will be credited for the benefit of
said assessment district. To the extent surpluses are created in said district
through unused contingency funds, interest earnings or reserve funds, such
surpluses shall be deemed the property of Landlord. Notwithstanding that such
surpluses may be credited on assessments otherwise due against the Leased
Premises, Tenant shall pay to Landlord, as additional rent if, and at the time
of any such credit of surpluses, an amount equal to all such surpluses so
credited. For example: if (i) the property is subject to an annual assessment of
$1,000.00, and (ii) a surplus of $200.00 is credited towards the current year's
assessment which reduces the assessment amount shown on the property tax bill
from $1,000.00 to $800.00, Tenant shall, upon receipt of notice from Landlord,
pay to Landlord said $200.00 credit as Additional Rent.
46. ASSIGNMENT AND SUBLETTING (CONTINUED):
A. Notwithstanding the foregoing, Landlord and Tenant agree that it
shall not be unreasonable for Landlord to refuse to consent to a proposed
assignment, sublease or other transfer ("Proposed Transfer") if the Premises or
any other portion of the Property would become subject to additional or
different Government Requirements as a direct or indirect consequence of the
Proposed Transfer and/or the Proposed Transferee's use and occupancy of the
Premises and the Property. However, Landlord may, in its sole discretion,
consent to such a Proposed Transfer where Landlord is indemnified by Tenant and
(i) Subtenant or (ii) Assignee, in form and substance satisfactory to Landlord's
counsel, by Tenant and/or the Proposed Transferee from and against any and all
costs, expenses, obligations and liability arising out of the Proposed Transfer
and/or the Proposed Transferee's use and occupancy of the Premises and the
Property.
B. Any and all sublease agreement(s) between Tenant and any and all
subtenant(s) (which agreements must be consented to by Landlord, pursuant to the
requirements of this Lease) shall contain the following language:
"If Landlord and Tenant jointly and voluntarily elect, for any
reason whatsoever, to terminate the Master Lease prior to the scheduled
Master Lease termination date, then this Sublease (if then still in
effect) shall terminate concurrently with the termination of the Master
Lease. Subtenant expressly acknowledges and agrees that (1) the
voluntary termination of the Master Lease by Landlord and Tenant and
the resulting termination of this Sublease shall not give Subtenant any
right or power to make any legal or equitable claim against Landlord,
including without limitation any claim for interference with contract
or interference with prospective economic advantage, and (2) Subtenant
hereby waives any and all rights it may have under law or at equity
against Landlord to challenge such an early termination of the
Sublease, and unconditionally releases and relieves Landlord, and its
officers, directors, employees and agents, from any and all claims,
demands, and/or causes of action whatsoever (collectively, "Claims"),
whether such matters are known or unknown, latent or apparent,
suspected or unsuspected, foreseeable or unforeseeable, which Subtenant
may have arising out of or in connection with any such early
termination of this Sublease. Subtenant knowingly and intentionally
waives any and all protection which is or may be given by Section 1542
of the California Civil Code which provides as follows: "A general
release does not extend to claims which the creditor does not know or
suspect to exist in his favor at the time of executing the release,
which if known by him must have materially affected his settlement with
debtor.
The term of this Sublease is therefore subject to early
termination. Subtenant's initials here below evidence (a) Subtenant's
consideration of and agreement to this early termination provision, (b)
Subtenant's acknowledgment that, in determining the net benefits to be
derived by Subtenant under the terms of this Sublease, Subtenant has
anticipated the potential for early termination, and (e) Subtenant's
agreement to the general waiver and release of Claims above.
Initials: Initials:
---------- ----------
Subtenant Tenant
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47. BANKRUPTCY AND DEFAULT: Paragraph 19 is modified to provide that with
respect to non-monetary defaults not involving Tenant's failure to pay Basic
Rent or Additional Rent, Tenant shall not be in default of any non-monetary
obligation if (i) more than thirty (30) days is required to cure such
non-monetary default, and (ii) Tenant commences cure of such default as soon as
reasonably practicable after receiving written notice of such default from
Landlord and thereafter continuously and with due diligence prosecutes such cure
to completion.
48. ABANDONMENT: Paragraph 20 is modified to provide that Tenant shall not be in
default under the Lease if it leaves all or any part of Premises vacant so long
as (i) Tenant is performing all of its other obligations under the Lease
including the obligation to pay Basic Rent and Additional Rent (ii) Tenant
provides on-site security during normal business hours for those parts of the
Premises left vacant, (iii) such vacancy does not materially and adversely
affect the validity or coverage of any policy of insurance carried by Landlord
with respect to the Premises, and (iv) the utilities and heating and
ventilation system are operated and maintained to the extent necessary to
prevent damage to the Premises or its systems.
49. HAZARDOUS MATERIALS: Landlord and Tenant agree as follows with respect to
the existence or use of "Hazardous Materials" (as defined herein) on, in, under
or about the Premises and real property located beneath said Premises and the
common areas of the Parcel, which includes the entire parcel of land on which
the Premises are located as shown in Green on EXHIBIT A attached hereto
(hereinafter collectively referred to as the "Property"):
A. As used herein, the term "Hazardous Materials" shall mean any
material, waste, chemical, mixture or byproduct which is or hereafter is
defined, listed or designated under Environmental Laws (defined below) as a
pollutant, or as a contaminant, or as a toxic or hazardous substance, waste or
material, or any other unwholesome, hazardous, toxic, biohazardous, or
radioactive material, waste, chemical, mixture or byproduct, or which is listed,
regulated or restricted by any Environmental Law (including, without limitation,
petroleum hydrocarbons or any distillates or derivatives or fractions thereof,
polychlorinated biphenyls, or asbestos). As used herein, the term "Environmental
Laws" shall mean any applicable Federal, State of California or local government
law (including common law), statute, regulation, rule, ordinance, permit,
license, order, requirement, agreement, or approval, or any determination,
judgment, directive, or order of any executive or judicial authority at any
level of Federal, State of California or local government (whether now existing
or subsequently adopted or promulgated) relating to pollution or the protection
of the environment, ecology, natural resources, or public health and safety.
B. Tenant shall obtain Landlord's written consent, which may be
withheld in Landlord's discretion, prior to the occurrence of any Tenant's
Hazardous Materials Activities (defined below); provided, however, that
Landlord's consent shall not be required for normal use in compliance with
applicable Environmental Laws of customary household and office supplies (Tenant
shall first provide Landlord with a list of said materials use), such as mild
cleaners, lubricants and copier toner. As used herein, the term "Tenant's
Hazardous Materials Activities" shall mean any and all use, handling,
generation, storage, disposal, treatment, transportation, release, discharge, or
emission of any Hazardous Materials on, in, beneath, to, from, at or about the
Property, in connection with Tenant's use of the Property, or by Tenant or by
any of Tenant's agents, employees, contractors, vendors, invitees, visitors or
its future subtenants or assignees. Tenant agrees that any and all Tenant's
Hazardous Materials Activities shall be conducted in strict, full compliance
with applicable Environmental Laws at Tenant's expense, and shall not result in
any contamination of the Property or the environment. Tenant agrees to provide
Landlord with prompt written notice of any spill or release of Hazardous
Materials at the Property during the term of the Lease of which Tenant becomes
aware, and further agrees to provide Landlord with prompt written notice of any
violation of Environmental Laws in connection with Tenant's Hazardous Materials
Activities of which Tenant becomes aware. If Tenant's Hazardous Materials
Activities involve Hazardous Materials other than normal use of customary
household and office supplies, Tenant also agrees at Tenant's expense: (i) to
install such Hazardous Materials monitoring, storage and containment devices as
Landlord reasonably deems necessary (Landlord shall have no obligation to
evaluate the need for any such installation or to require any such
installation); (ii) provide Landlord with a written inventory of such Hazardous
Materials, including an update of same each year upon the anniversary date of
the Commencement Date of the Lease ("Anniversary Date"); and (iii) on each
Anniversary Date, to retain a qualified environmental consultant, acceptable to
Landlord, to evaluate whether Tenant is in compliance with all applicable
Environmental Laws with respect to Tenant's Hazardous Materials Activities.
Tenant, at its expense,
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shall submit to Landlord a report from such environmental consultant which
discusses the environmental consultant's findings within two (2) months of each
Anniversary Date. Tenant, at its expense, shall promptly undertake and complete
any and all steps necessary, and in full compliance with applicable
Environmental Laws, to fully correct any and all problems or deficiencies
identified by the environmental consultant, and promptly provide Landlord with
documentation of all such corrections.
C. Prior to termination or expiration of the Lease, Tenant, at its
expense, shall (i) properly remove from the Property all Hazardous Materials
which come to be located at the Property in connection with Tenant's Hazardous
Materials Activities, and (ii) fully comply with and complete all facility
closure requirements of applicable Environmental Laws regarding Tenant's
Hazardous Materials Activities, including but not limited to (x) properly
restoring and repairing the Property to the extent damaged by such closure
activities, and (y) obtaining from the local Fire Department or other
appropriate governmental authority with jurisdiction a written concurrence that
closure has been completed in compliance with applicable Environmental Laws.
Tenant shall promptly provide Landlord with copies of any claims, notices, work
plans, data and reports prepared, received or submitted in connection with any
such closure activities.
D. If Landlord, in its sole discretion, believes that the Property has
become contaminated as a result of Tenant's Hazardous Materials Activities,
Landlord in addition to any other rights it may have under this Lease or under
Environmental Laws or other laws, may enter upon the Property and conduct
inspection, sampling and analysis, including but not limited to obtaining and
analyzing samples of soil and groundwater, for the purpose of determining the
nature and extent of such contamination. Tenant shall promptly reimburse
Landlord for the costs of such an investigation, including but not limited to
reasonable attorneys' fees Landlord incurs with respect to such investigation,
that discloses Hazardous Materials contamination for which Tenant is liable
under this Lease. Notwithstanding the above, Landlord may, at its option and in
its sole and absolute discretion, choose to perform remediation and obtain
reimbursement for cleanup costs as set forth herein from Tenant. Any cleanup
costs incurred by Landlord as the result of Tenant's Hazardous Materials
Activities shall be reimbursed by Tenant within thirty (30) days of presentation
of written documentation of the expense to Tenant by Landlord. Such reimbursable
costs shall include, but not be limited to, any reasonable consultant and
attorney fees incurred by Landlord. Tenant shall take all actions necessary to
preserve any claims it has against third parties, including, but not limited to,
its insurers, for claims related to its operation, management of Hazardous
Materials or contamination of the Property. Except as may be required of Tenant
by applicable Environmental Laws, Tenant shall not perform any sampling,
testing, or drilling to identify the presence of any Hazardous Materials at the
Property, without Landlord's prior written consent which may be withheld in
Landlord's discretion. Tenant shall promptly provide Landlord with copies of any
claims, notices, work plans, data and reports prepared, received or submitted in
connection with any sampling, testing or drilling performed pursuant to the
preceding sentence.
E. Tenant shall indemnify, defend (with legal counsel acceptable to
Landlord, whose consent shall not unreasonably be withheld) and hold harmless
Landlord, its employees, assigns, successors, successors-in-interest, agents and
representatives from and against any and all claims (including but not limited
to third party claims from a private party or a government authority),
liabilities, obligations, losses, causes of action, demands, governmental
proceedings or directives, fines, penalties, expenses, costs (including but not
limited to reasonable attorneys', consultants' and other experts' fees and
costs), and damages, which arise from or relate to: (i) Tenant's Hazardous
Materials Activities; (ii) any Hazardous Materials contamination caused by
Tenant prior to the Commencement Date of the Lease; or (iii) the breach of any
obligation of Tenant under this Paragraph 49 (collectively, "Tenant's
Environmental Indemnification"). Tenant's Environmental Indemnification shall
include but is not limited to the obligation to promptly and fully reimburse
Landlord for losses in or reductions to rental income, and diminution in fair
market value of the Property. Tenant's Environmental Indemnification shall
further include but is not limited to the obligation to diligently and properly
implement to completion, at Tenant's expense, any and all environmental
investigation, removal, remediation, monitoring, reporting, closure activities,
or other environmental response action (collectively, "Response Actions").
Tenant shall promptly provide Landlord with copies of any claims, notices, work
plans, data and reports prepared, received or submitted in connection with any
Response Actions.
As evidenced by their initials set forth immediately below, Tenant acknowledges
that Landlord has provided Tenant with copies of the environmental reports
listed on EXHIBIT C ("Reports"), and Tenant acknowledges that Tenant and
Tenant's experts (if any) have had ample opportunity to review such reports and
that Tenant has satisfied itself as to the environmental conditions of the
Property and the suitability of such conditions for Tenant's intended use of the
Property. To the best of Landlord's knowledge as of the date of this Lease,
except as noted in said Reports, no additional on site Hazardous
Page 14
<PAGE>
Materials contamination exist on the Property; however, Landlord shall have no
obligation to further investigate.
Initial: [ILLEGIBLE] Initial:
----------- -----------
Tenant Landlord
It is agreed that the Tenant's responsibilities related to Hazardous Materials
will survive the expiration or termination of this Lease and that Landlord may
obtain specific performance of Tenant' s responsibilities under this Paragraph
49.
50. CONSENT: Whenever the consent of one party to the other is required
hereunder, such consent shall not be unreasonably withheld.
51. AUTHORITY TO EXECUTE. The parties executing this Lease Agreement hereby
warrant and represent that they are properly authorized to execute this Lease
Agreement and bind the parties on behalf of whom they execute this Lease
Agreement and to all of the terms, covenants and conditions of this Lease
Agreement as they relate to the respective parties hereto.
52. ADDRESS FOR LEASED PREMISES: It is understood that (i) the current address
for the building in which the Premises are located is 6607 Dumbarton Circle,
Suite 200, Fremont, California, and that (ii) the address for the Premises may
be changed by the City of Fremont (the "City") upon issuance of a building
permit for the Interior Improvements as defined herein. In the event the address
assigned to the Premises is changed by the City, said Lease shall thereafter be
amended to reflect the assigned address for the Premises leased hereunder.
53. ASSOCIATION DUES: The Premises leased hereunder is part of the Ardenwood
Property Owner's Association (the "Association"), and is subject to
Association Dues to fund the cost of the Association's obligations and
expenses as authorized under said Agreement. As of the date of this Lease,
Tenant's current pro rata share of the Association Dues is currently
estimated at $28.77 per month and is subject to adjustment as provided for by
said Association. Said Association Dues are payable by Tenant to Landlord as
Additional Rent on a monthly basis throughout the Term of this Lease. Tenant
understands that it will not be a direct member of the Association
Page 15
<PAGE>
January 28, 2000
CIPHERGEN BIOSYSTEMS, INC.
490 San Antonio Road
Palo Alto, CA 94306
Attention: James H. Stanford
RE: CONSTRUCTION AGREEMENT RELATED TO LEASE AGREEMENT DATED JANUARY 28,
2000, BY AND BETWEEN THE JOHN ARRILLAGA SURVIVOR'S TRUST AND THE
RICHARD T. PEERY SEPARATE PROPERTY TRUST, AS LANDLORD, AND CIPHERGEN
BIOSYSTEMS, INC., A CALIFORNIA CORPORATION, AS TENANT, FOR
APPROXIMATELY 30,232 SQUARE FEET OF THAT CERTAIN 60,720 SQUARE FOOT
BUILDING LOCATED AT 6607 DUMBARTON CIRCLE, SUITE 200 IN FREMONT,
CALIFORNIA.
Gentlemen:
This Letter will confirm our agreement relative to the shell of the building and
interior improvements related thereto to be constructed by Landlord on the
property leased under the lease referenced above, hereinafter referred to as the
"Lease", and shall be considered a part of the Lease.
1. CONSTRUCTION AND COST OF IMPROVEMENTS: The improvements to be constructed as
part of the Premises in connection with this Lease Agreement shall be
constructed, completed, and paid for in the following manner:
A. PLANS AND SPECIFICATIONS:
1. SHELL: Tenant shall furnish to Landlord complete detailed plans and
specifications for all plumbing, electrical, heating and air conditioning that
affect the construction of the "shell" of the building, as well as any other
items that are required to construct the shell without modification being
required at a later time, not later than February 14, 2000.
2. INTERIOR: Tenant shall furnish to Landlord complete and detailed
plans and specifications for all interior improvements Tenant desires
constructed in the building shell being constructed by Landlord not later than
February 14, 2000. Such interior plans shall be in sufficient detail for the
interior improvements to be accurately constructed. All of the plans and
specifications, when approved by Landlord and furnished to Landlord on the dates
provided for herein, shall be "EXHIBIT B" to the Lease.
If the above plans and specifications for any items affecting the shell
of the building and/or interior plans and specifications are not received by
Landlord for Landlord's approval (which approval shall not be unreasonable
withheld) by the dates specified above, then it is agreed that, notwithstanding
anything to the contrary in the Lease, this Lease, and Tenant's obligation to
pay Rent and to perform all other terms, covenants and conditions of the Lease
shall commence on April 1, 2000 regardless of whether or not the building and
interior improvements are completed on April 1, 2000, and Landlord shall
complete construction of the building and interior improvements as soon as
reasonably possible thereafter.
B. LANDLORD'S RIGHT TO TERMINATE: It is understood that the Premises to be
leased by Tenant are to be constructed by Landlord, and that Landlord is
required to obtain the necessary building permits before construction of said
Premises can commence. Therefore, it is agreed that in the event Landlord cannot
obtain all the necessary building and governmental permits for said Premises
within 90 days from the date this executed Lease is received by Landlord, that
Landlord can terminate this Lease Agreement without any liability to Tenant, of
any type whatsoever, and that this Lease Agreement will be null and void as of
the date of said cancellation. Landlord agrees to use its best efforts to obtain
the required permits within the aforementioned 90-day
1
<PAGE>
period.
C. CONSTRUCTION OF IMPROVEMENTS BY LANDLORD:
1. The site, shell, and interior shall be constructed in accordance
with Exhibit A and EXHIBIT B of the Lease; it being agreed, however, that if the
Building does not conform exactly to the plans and specifications as set forth
in the Lease, and the general appearance, structural integrity, and Tenant's use
and occupancy of the Premises and/or building and interior improvements relating
thereto are not materially or unreasonably affected by such deviation, it is
agreed that the commencement date of the Lease, and Tenant's obligation to pay
Rent shall not be affected, and Tenant hereby agrees, in such event, to accept
the Premises and/or building and interior improvements as constructed by
Landlord.
2. Landlord shall have a reasonable time period, not to exceed sixty
(60) days (acts of God and delays beyond Landlord's control excepted), after
completion by Landlord of Tenant's improvements set forth herein and the
commencement date of the Lease to complete the landscaping and "punch list"
items pertaining to Landlord's work with respect to Tenant's newly constructed
building and/or interior improvements relating thereto without the commencement
date of the Lease and Tenant's obligation to pay Rent thereunder being affected.
D. IMPROVEMENTS TO BE FURNISHED BY LANDLORD:
1. Landlord agrees to furnish the shell of the building, including the
paving and parking areas, striping, curbs, and gutters as shown on EXHIBIT A of
the Lease, the main plumbing line into the building and landscaping and
irrigation system for the building.
2. In addition, Landlord agrees to furnish Tenant with an interior
allowance of SEVEN HUNDRED FIFTY FIVE THOUSAND EIGHT HUNDRED AND NO/100 DOLLARS
($755,800.00) ("Improvement Allowance"), which allowance shall be considered
Landlord's total monetary contribution with respect to Tenant's interior
improvements to the building, which allowance shall be used for interior
improvements including, but not limited to, elevators, elevator pits and guide
rails (if any), stairwells (if any), the fire sprinkler system, loading docks,
drop ceilings, interior plumbing, heating and air conditioning system ("HVAC"),
electrical system, parking lot lighting, carpeting, vinyl floor covering,
painting, interior walls and movable floor to ceiling partitioning, normal
contractor's fees and interest due during the period of construction on the
funds advanced for installation of improvements under the improvement allowance,
Builders Risk Insurance premium and any school, City, County or governmental
fees including fees for connection to utilities, etc. Notwithstanding anything
to the contrary herein, in no event shall any of Landlord Improvement Allowance
be used for any lab equipment, cabinets or special plumbing and/or electrical
and/or HVAC requirements for any labs and/or clean rooms, if any (collectively
hereinafter referred to as "Other Improvements")
3. Tenant hereby specifically agrees that the interior improvements to
be constructed in the Premises leased hereunder shall be spread proportionately
even within the building.
E. LIABILITY FOR INTERIOR EXPENSE ABOVE LANDLORD'S ALLOWANCE:
1. In the event that the total cost of the interior improvements
constructed in the Premises exceeds Landlord's agreed-upon interior improvement
allowance of $755,800.00, Landlord's total liability shall be limited to
$755,800.00, which Landlord shall pay by paying the general contractor doing the
interior improvements a pro rata share of the total cost of the contract as
invoiced by the general contractor as work progresses. (For example: If the
total contract from the general contractor for such improvements is
$1,000,000.00 and Landlord agreed to contribute $755,800.00 toward the
improvements, then Landlord would pay seventy five and fifty eight hundredths
percent (75.58%) of each payment so invoiced and Tenant would pay the remaining
twenty percent (24.42%) of each payment so invoiced with the exception that
Landlord, at its option, may retain a pro rata share of the final ten percent
(10%) of the interior contract until 62 days after recordation of a Notice of
Completion on the Premises.
2. It is further agreed that Tenant shall be responsible for and pay
one hundred percent (100%) of the costs in connection with (a) Tenant's Other
Improvements and (b) any and all interior improvements in excess of those that
are paid for with Landlord's allowance for Tenant's
2
<PAGE>
improvements as set forth in Paragraph 1.C. 1 above and in addition, Tenant
shall be responsible for and pay any additional construction costs and expenses
related to the site or shell occasioned by changes or modifications by Tenant in
the plans attached as Exhibits A and B to the Lease. Landlord shall be
reimbursed by Tenant for the full cost of such improvements made by Landlord in
excess of said $755,800.00 allowance upon demand of Landlord. (Tenant shall
enter into a direct contract with the general contractor constructing the
interior improvements if Landlord so directs.)
2. CHANGES, MODIFICATIONS, OR ADDITIONS TO THE PLANS, SPECIFICATIONS AND/OR
PREMISES.
LIABILITY FOR ADDITIONAL COSTS:
A. All construction work relating to the Premises other than that to be
performed by Landlord as set forth herein shall be performed by Landlord at
Tenant's sole cost and expense, and in accordance with any plans and
specifications first submitted and approved in writing by Landlord.
B. Notwithstanding anything to the contrary, it is agreed that in the
event Tenant, with Landlord's written consent (which consent shall not be
unreasonably withheld), makes changes, additions, or modifications to the plans
and specifications and/or Premises to be constructed by Landlord as set forth
herein, or improvements are installed for Tenant in excess of those to be
provided Tenant by Landlord as set forth herein, any increased cost(s) resulting
from said changes, additions, and/or modifications and/or improvements in excess
of those to be provided Tenant as set forth in Paragraph 1.A. shall be
contracted for with Landlord or the general contractor (as Landlord shall so
designate) and paid for one hundred percent (100%) by Tenant.
3. TENANT DELAYS
In the event that the completion of Tenant's interior improvements
and/or the completion of the building and Landlord's delivery of possession of
the Premises to Tenant is delayed as a result of said changes, additions, and/or
modifications made by Tenant, or because improvements installed by Tenant or
Tenant's subcontractors (with Landlord's consent, which consent shall not be
unreasonably withheld) hinder Landlord from timely completing any improvements
to be installed by Landlord, or if Tenant installs, or requests to have
installed, any special or nonstandard improvements, or if Tenant's plans and
specifications include any special materials, finishes or installations which
are not readily available, and which delay completion of the improvements due to
a longer time span for delivery or installation of said nonstandard improvement
or any other reason, including Tenant's failure to timely deliver the
Construction Plans and Specifications as provided in above Paragraph 1.A, the
commencement date of the Lease, and Tenant's obligation to pay Rent and perform
all other terms, covenants and conditions of the Lease shall commence on April
1, 2000, in which event Landlord shall complete construction of the building as
soon as reasonably possible thereafter.
Please execute this agreement in the space provided below, indicating your
agreement with the above, and return all copies. A fully executed copy will be
returned to you for your records after execution by the Landlord.
Respectfully yours,
JOHN ARRILLAGA SURVIVOR'S TRUST
By
-------------------------------------------
John Arrillaga, Trustee
Date:
-------------------------------------------
3
(SIGNATURES CONTINUED ON FOLLOWING PAGE)
<PAGE>
RICHARD T. PEERY SEPARATE
PROPERTY TRUST
By /s/ Richard T. Peery
-------------------------------------------
Richard T. Peery, Trustee
Date: 2/8/00
-----------------------------------------
AGREED:
CIPHERGEN BIOSYSTEMS, INC.
a California corporation
By /s/ James H. Stanford
-------------------------------------------
James H. Stanford, Vice President and
Chief Financial Officer
Date: February 3, 2000
-----------------------------------------
4
<PAGE>
[Image Site Plan]
EXHIBIT A TO LEASE AGREEMENT DATED JANUARY 28, 2000 BY BETWEEN THE JOHN
ARRILLAGA SURVIVOR'S TRUST AND THE RICHARD T. PEERY SEPARATE PROPERTY TRUST, AS
LANDLORD, AND CIPHERGEN BIOSYSTEMS, INC., AS TENANT.
<PAGE>
EXHIBIT C TO LEASE AGREEMENT DATED JANUARY 28, 2000 BETWEEN THE
JOHN ARRILLAGA SURVIVOR'S TRUST AND THE RICHARD T. PEERY
SEPARATE PROPERTY TRUST, AS LANDLORD, AND CIPHERGEN BIOSYSTEMS,
INC., AS TENANT.
HAZARDOUS MATERIALS REPORTS
PROVIDED TO TENANT
1) Preliminary Environmental Assessment and Soil Testing for Ardenwood
Corporate Commons: prepared for Bedford Properties on August 10, 1988
by Kaldveer Associates;
2) Preliminary Environmental Assessment and Soil Testing for Ardenwood
Corporate Commons Lots 1 through 27: prepared for Bedford Properties on
June 13, 1989 by Kaldveer Associates;
3) Phase I Site Assessment for Ardenwood Corporate Commons: prepared for
Bedford Properties in July 1991 by Mittelhauser Corporation.
<PAGE>
[Image Site Plan]
EXHIBIT A TO LEASE AGREEMENT DATED JANUARY 28, 2000 BY BETWEEN THE JOHN
ARRILLAGA SURVIVOR'S TRUST AND THE RICHARD T. PEERY SEPARATE PROPERTY TRUST, AS
LANDLORD, AND CIPHERGEN BIOSYSTEMS, INC., AS TENANT.
<PAGE>
FLOORPLAN
<PAGE>
FLOORPLAN
<PAGE>
January 28, 2000
CIPHERGEN BIOSYSTEMS, INC.
490 San Antonio Road
Palo Alto, CA 94306
Attention: James H. Stanford
RE: CONSTRUCTION AGREEMENT RELATED TO LEASE AGREEMENT DATED JANUARY 28,
2000, BY AND BETWEEN THE JOHN ARRILLAGA SURVIVOR'S TRUST AND THE
RICHARD T. PEERY SEPARATE PROPERTY TRUST, AS LANDLORD, AND CIPHERGEN
BIOSYSTEMS, INC., A CALIFORNIA CORPORATION, AS TENANT, FOR
APPROXIMATELY 30,232 SQUARE FEET OF THAT CERTAIN 60,720 SQUARE FOOT
BUILDING LOCATED AT 6607 DUMBARTON CIRCLE, SUITE 200 IN FREMONT,
CALIFORNIA.
Gentlemen:
This Letter will confirm our agreement relative to the shell of the building and
interior improvements related thereto to be constructed by Landlord on the
property leased under the lease referenced above, hereinafter referred to as the
"Lease", and shall be considered a part of the Lease.
1. CONSTRUCTION AND COST OF IMPROVEMENTS: The improvements to be constructed as
part of the Premises in connection with this Lease Agreement shall be
constructed, completed, and paid for in the following manner:
A. PLANS AND SPECIFICATIONS:
1. SHELL: Tenant shall furnish to Landlord complete detailed plans and
specifications for all plumbing, electrical, heating and air conditioning that
affect the construction of the "shell" of the building, as well as any other
items that are required to construct the shell without modification being
required at a later time, not later than February 14, 2000.
2. INTERIOR: Tenant shall furnish to Landlord complete and detailed
plans and specifications for all interior improvements Tenant desires
constructed in the building shell being constructed by Landlord not later than
February 14, 2000. Such interior plans shall be in sufficient detail for the
interior improvements to be accurately constructed. All of the plans and
specifications, when approved by Landlord and furnished to Landlord on the dates
provided for herein, shall be "EXHIBIT B" to the Lease.
If the above plans and specifications for any items affecting the shell
of the building and/or interior plans and specifications are not received by
Landlord for Landlord's approval (which approval shall not be unreasonable
withheld) by the dates specified above, then it is agreed that, notwithstanding
anything to the contrary in the Lease, this Lease, and Tenant's obligation to
pay Rent and to perform all other terms, covenants and conditions of the Lease
shall commence on April 1, 2000 regardless of whether or not the building and
interior improvements are completed on April 1, 2000, and Landlord shall
complete construction of the building and interior improvements as soon as
reasonably possible thereafter.
B. LANDLORD'S RIGHT TO TERMINATE: It is understood that the Premises to be
leased by Tenant are to be constructed by Landlord, and that Landlord is
required to obtain the necessary building permits before construction of said
Premises can commence. Therefore, it is agreed that in the event Landlord cannot
obtain all the necessary building and governmental permits for said Premises
within 90 days from the date this executed Lease is received by Landlord, that
Landlord can terminate this Lease Agreement without any liability to Tenant, of
any type whatsoever, and that this Lease Agreement will be null and void as of
the date of said cancellation. Landlord agrees to use its best efforts to obtain
the required permits within the aforementioned 90-day
1
<PAGE>
period.
C. CONSTRUCTION OF IMPROVEMENTS BY LANDLORD:
1. The site, shell, and interior shall be constructed in accordance
with EXHIBIT A and EXHIBIT B of the Lease; it being agreed, however, that if the
Building does not conform exactly to the plans and specifications as set forth
in the Lease, and the general appearance, structural integrity, and Tenant's use
and occupancy of the Premises and/or building and interior improvements relating
thereto are not materially or unreasonably affected by such deviation, it is
agreed that the commencement date of the Lease, and Tenant's obligation to pay
Rent shall not be affected, and Tenant hereby agrees, in such event, to accept
the Premises and/or building and interior improvements as constructed by
Landlord.
2. Landlord shall have a reasonable time period, not to exceed sixty
(60) days (acts of God and delays beyond Landlord's control excepted), after
completion by Landlord of Tenant's improvements set forth herein and the
commencement date of the Lease to complete the landscaping and "punch list"
items pertaining to Landlord's work with respect to Tenant's newly constructed
building and/or interior improvements relating thereto without the commencement
date of the Lease and Tenant's obligation to pay Rent thereunder being affected.
D. IMPROVEMENTS TO BE FURNISHED BY LANDLORD:
1. Landlord agrees to furnish the shell of the building, including the
paving and parking areas, striping, curbs, and gutters as shown on EXHIBIT A of
the Lease, the main plumbing line into the building and landscaping and
irrigation system for the building.
2. In addition, Landlord agrees to furnish Tenant with an interior
allowance of SEVEN HUNDRED FIFTY FIVE THOUSAND EIGHT HUNDRED AND NO/100 DOLLARS
($755,800.00) ("Improvement Allowance"), which allowance shall be considered
Landlord's total monetary contribution with respect to Tenant's interior
improvements to the building, which allowance shall be used for interior
improvements including, but not limited to, elevators, elevator pits and guide
rails (if any), stairwells (if any), the fire sprinkler system, loading docks,
drop ceilings, interior plumbing, heating and air conditioning system ("HVAC"),
electrical system, parking lot lighting, carpeting, vinyl floor covering,
painting, interior walls and movable floor to ceiling partitioning, normal
contractor's fees and interest due during the period of construction on the
funds advanced for installation of improvements under the improvement allowance,
Builders Risk Insurance premium and any school, City, County or governmental
fees including fees for connection to utilities, etc. Notwithstanding anything
to the contrary herein, in no event shall any of Landlord Improvement Allowance
be used for any lab equipment, cabinets or special plumbing and/or electrical
and/or HVAC requirements for any labs and/or clean rooms, if any (collectively
hereinafter referred to as "Other Improvements")
3. Tenant hereby specifically agrees that the interior improvements to
be constructed in the Premises leased hereunder shall be spread proportionately
even within the building.
E. LIABILITY FOR INTERIOR EXPENSE ABOVE LANDLORD'S ALLOWANCE:
1. In the event that the total cost of the interior improvements
constructed in the Premises exceeds Landlord's agreed-upon interior improvement
allowance of $755,800.00, Landlord's total liability shall be limited to
$755,800.00, which Landlord shall pay by paying the general contractor doing the
interior improvements a pro rata share of the total cost of the contract as
invoiced by the general contractor as work progresses. (For example: If the
total contract from the general contractor for such improvements is
$1,000,000.00 and Landlord agreed to contribute $755,800.00 toward the
improvements, then Landlord would pay seventy five and fifty eight hundredths
percent (75.58%) of each payment so invoiced and Tenant would pay the remaining
twenty percent (24.42%) of each payment so invoiced with the exception that
Landlord, at its option, may retain a pro rata share of the final ten percent
(10%) of the interior contract until 62 days after recordation of a Notice of
Completion on the Premises.
2. It is further agreed that Tenant shall be responsible for and pay
one hundred percent (100%) of the costs in connection with (a) Tenant's Other
Improvements and (b) any and all interior improvements in excess of those that
are paid for with Landlord's allowance for Tenant's
2
<PAGE>
improvements as set forth in Paragraph 1.C.1 above and in addition, Tenant shall
be responsible for and pay any additional construction costs and expenses
related to the site or shell occasioned by changes or modifications by Tenant in
the plans attached as Exhibits A and B to the Lease. Landlord shall be
reimbursed by Tenant for the full cost of such improvements made by Landlord in
excess of said $755,800.00 allowance upon demand of Landlord. (Tenant shall
enter into a direct contract with the general contractor constructing the
interior improvements if Landlord so directs.)
2. CHANGES, MODIFICATIONS, OR ADDITIONS TO THE PLANS, SPECIFICATIONS AND/OR
PREMISES.
LIABILITY FOR ADDITIONAL COSTS:
A. All construction work relating to the Premises other than that to be
performed by Landlord as set forth herein shall be performed by Landlord at
Tenant's sole cost and expense, and in accordance with any plans and
specifications first submitted and approved in writing by Landlord.
B. Notwithstanding anything to the contrary, it is agreed that in the
event Tenant, with Landlord's written consent (which consent shall not be
unreasonably withheld), makes changes, additions, or modifications to the plans
and specifications and/or Premises to be constructed by Landlord as set forth
herein, or improvements are installed for Tenant in excess of those to be
provided Tenant by Landlord as set forth herein, any increased cost(s) resulting
from said changes, additions, and/or modifications and/or improvements in excess
of those to be provided Tenant as set forth in Paragraph 1.A. shall be
contracted for with Landlord or the general contractor (as Landlord shall so
designate) and paid for one hundred percent (100%) by Tenant.
3. TENANT DELAYS
In the event that the completion of Tenant's interior improvements
and/or the completion of the building and Landlord's delivery of possession of
the Premises to Tenant is delayed as a result of said changes, additions, and/or
modifications made by Tenant, or because improvements installed by Tenant or
Tenant's subcontractors (with Landlord's consent, which consent shall not be
unreasonably withheld) hinder Landlord from timely completing any improvements
to be installed by Landlord, or if Tenant installs, or requests to have
installed, any special or nonstandard improvements, or if Tenant's plans and
specifications include any special materials, finishes or installations which
are not readily available, and which delay completion of the improvements due to
a longer time span for delivery or installation of said nonstandard improvement
or any other reason, including Tenant's failure to timely deliver the
Construction Plans and Specifications as provided in above Paragraph 1.A, the
commencement date of the Lease, and Tenant's obligation to pay Rent and perform
all other terms, covenants and conditions of the Lease shall commence on April
1, 2000, in which event Landlord shall complete construction of the building as
soon as reasonably possible thereafter.
Please execute this agreement in the space provided below, indicating your
agreement with the above, and return all copies. A fully executed copy will be
returned to you for your records after execution by the Landlord.
Respectfully yours,
JOHN ARRILLAGA SURVIVOR'S TRUST
By /s/ John Arrillaga
---------------------------------------
John Arrillaga, Trustee
Date: 2/8/00
-------------------------------------
(SIGNATURES CONTINUED ON FOLLOWING PAGE)
3
<PAGE>
RICHARD T. PEERY SEPARATE
PROPERTY TRUST
By /s/ Richard T. Peery
---------------------------------------
Richard T. Peery, Trustee
Date: 2/8/00
-------------------------------------
AGREED:
CIPHERGEN BIOSYSTEMS, INC.
a California corporation
By /s/ James H. Stanford
---------------------------------------
James H. Stanford, Vice President and
Chief Financial Officer
Date: February 3, 2000
-------------------------------------
4
<PAGE>
EXHIBIT A
SITE PLAN
(IMAGE)
<PAGE>
AMENDMENT NO. 1
TO LEASE
THIS AMENDMENT NO. 1 is made and entered into this 8th day of August,
2000, by and between JOHN ARRILLAGA, Trustee, or his Successor Trustee UTA
dated 7/20/77 (JOHN ARRILLAGA SURVIVOR'S TRUST) as amended, and RICHARD T.
PEERY, Trustee, or his Successor Trustee UTA dated 7/20/77 (RICHARD T. PEERY
SEPARATE PROPERTY TRUST) as amended, collectively as LANDLORD, and CIPHERGEN
BIOSYSTEMS, INC., A DELAWARE CORPORATION, as TENANT.
RECITALS
A. WHEREAS, by Lease Agreement dated January 28, 2000 Landlord leased
to Tenant approximately 30,232 PLUS OR MINUS square feet of that certain
60,720 PLUS OR MINUS square foot building located at 6607 Dumbarton Circle,
Suite 200, Fremont, California, the details of which are more particularly
set forth in said January 28, 2000 Lease Agreement, and
B. WHEREAS, it is now the desire of the parties hereto to amend the
Lease by (i) changing the street address for the Leased Premises, (ii)
acknowledging the change in Tenant's state of incorporation from "California"
to "Delaware", (iii) changing the Lease Commencement Date from April 1, 2000
to July 10, 2000 and the Lease Termination Date from March 31, 2008 to July
31, 2008, (iv) increasing the square footage of the Leased Premises by 30,488
square feet effective October 1, 2000, (v) amending the Basic Rent schedule
and Aggregate Rent accordingly, (vi) increasing the Security Deposit required
under the Lease, (vii) deleting Lease Paragraph 44 ("Parking"), (viii)
replacing Lease Paragraphs 7 ("Tenant Maintenance"), 42 ("Expenses of
Operation, Management, and Maintenance of the Common Areas of the Parcel and
Building in Which the Premises are Located"), 43 ("Utilities of the Building
in Which the Premises are Located") and (ix) amending Lease Paragraph 16
("Assignment and Subletting") as hereinafter set forth.
AGREEMENT
NOW THEREFORE, for valuable consideration, receipt of which is hereby
acknowledged, and in consideration of the hereinafter mutual promises, the
parties hereto do agree as follows:
1. ADDRESS: It is acknowledged and agreed between the parties hereto
that the address for Premises Leased under the aforementioned Lease shall be
changed from 6607 Dumbarton Circle, Suite 200, Fremont, California to 6611
Dumbarton Circle, Fremont, California. Hereinafter, any reference to the
Leased Premises shall reflect the 6611 Dumbarton Circle address.
2. STATE OF INCORPORATION CHANGE: Notwithstanding anything to the
contrary contained in said Lease Agreement, it is agreed that Ciphergen
Biosystems, Inc., a California corporation has changed its state of
incorporation to Delaware and that Ciphergen Biosystems, Inc., a Delaware
corporation, has succeeded to all of the rights, property, and liabilities of
Ciphergen Biosystems, Inc., a California corporation, effective on the date
of reincorporation. It is further agreed that upon the happening of such
reincorporation and complete liquidation that Ciphergen Biosystems, Inc., a
California corporation shall no longer exist and that Ciphergen Biosystems,
Inc., a Delaware corporation will be responsible for the full performance of
all terms, covenants, and conditions of said Lease Agreement through the
effective termination date of said Lease. Ciphergen Biosystems, Inc., a
Delaware corporation, specifically agrees to assume all liabilities and
obligations of Ciphergen Biosystems, Inc., a California corporation, under
the Lease as Tenant from January 28, 2000, the date of the Lease Agreement.
It is further understood that 100 percent of the liabilities and assets,
including the security deposit of the Tenant under the Lease Agreement of
Ciphergen Biosystems, Inc., a California corporation, are being transferred
to Ciphergen Biosystems, Inc., a Delaware corporation, and upon the
reincorporation, Ciphergen Biosystems, Inc., a California corporation, will
no longer exist and be replaced by Ciphergen Biosystems, Inc., a Delaware
corporation. In the event there is not a complete transfer of 100 percent of
the assets and liabilities of Ciphergen Biosystems, Inc., a California
corporation, to Ciphergen Biosystems, Inc., a Delaware corporation, and/or
Ciphergen Biosystems, Inc., a California corporation continues to exist as a
California corporation, it is agreed that both Ciphergen Biosystems, Inc., a
California corporation
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Ardenwood III-F
and Ciphergen Biosystems, Inc., a Delaware corporation will be jointly and
severally liable for all the terms and conditions of the aforementioned
lease.
3. LEASE COMMENCEMENT DATE: It is agreed between the parties hereto
that said Lease shall commence effective July 10, 2000 and terminate eight
years twenty two days later on July 31, 2008.
4. INCREASED PREMISES: Subject to Paragraph 4 below, effective October
1, 2000, the size of the Leased Premises will be increased by 30,488 PLUS OR
MINUS square feet, or from 30,232 PLUS OR MINUS square feet to 60,720 PLUS OR
MINUS square feet of space (one hundred percent of the building). Total said
Premises are more particularly shown within the area outlined in Red on
EXHIBIT A. The entire parcel, of which the Leased Premises is a part, is
shown within the area outlined in Green on EXHIBIT A. The additional 30,488
PLUS OR MINUS square feet of space is leased on an "as-is" basis, in its
present condition and configuration, as set forth in Blue on EXHIBIT B
attached hereto, with the entire interior leased Premises shown in Red on
Exhibit B.
5. AMENDMENT SUBJECT TO LANDLORD'S OBTAINING TERMINATION AGREEMENT
WITH CURRENT TENANT FOR CURRENT TENANT'S SPACE: This Amendment is subject to
Landlord obtaining from Wine.com, Inc. ("Wine.com"), the current tenant
occupying the Premises leased hereunder, a Termination Agreement satisfactory
to Landlord on or before September 30, 2000. In the event Landlord is unable
to obtain said satisfactory Agreement on or before September 30, 2000, and/or
in the event Wine.com fails to timely vacate the Premises and surrender same
to Landlord free and clear of its occupancy, this Amendment shall, at
Landlord's option: a) be rescinded, or b) the Commencement Date of the
Increased Premises hereof shall be modified to reflect the date Landlord so
obtains said satisfactory Termination Agreement and receives possession of
the Increased Premises free and clear of Wine.com's occupancy; provided,
however, that said period of delay caused by Wine.com shall not extend beyond
November 30, 2000. In the event Landlord cannot deliver said Increased
Premises by December 1, 2000, this Amendment No. 1 shall be automatically
rescinded.
6. BASIC RENT SCHEDULE: Due to the change in the Lease Commencement
Date and the Increased Premises, the Basic Rent schedule, as shown in
Paragraph 4(A) of the Lease Agreement, shall be amended as follows:
On July 10, 2000, the sum of FIFTY THREE THOUSAND SIX HUNDRED THIRTY
SEVEN AND 42/100 DOLLARS ($53,637.42) shall be due, representing the prorated
Basic Rent for the period of July 10, 2000 through July 31, 2000.
On August 1, 2000, the sum of SEVENTY FIVE THOUSAND FIVE HUNDRED EIGHTY
AND NO/100 DOLLARS ($75,580.00) shall be due, and like a sum due on the first
day of each month thereafter, through and including September 1, 2000.
On October 1, 2000, the sum of TWO HUNDRED TWELVE THOUSAND SEVEN HUNDRED
SEVENTY SIX AND NO/100 DOLLARS ($212,776.00) shall be due, and a like sum
due on the first day of each month thereafter, through and including July 1,
2001.
On August 1, 2001, the sum of TWO HUNDRED FIFTEEN THOUSAND SEVEN HUNDRED
NINETY NINE AND 20/100 DOLLARS ($215,799.20) shall be due, and a like sum on
the first day of each month thereafter, through and including September 1,
2001.
On October 1, 2001, the sum of TWO HUNDRED TWENTY ONE THOUSAND EIGHT
HUNDRED NINETY SIX AND 80/100 DOLLARS ($221,896.80) shall be due, and a like
sum due on the first day of each month thereafter, through and including July
1, 2002.
On August 1, 2002, the sum of TWO HUNDRED TWENTY FOUR THOUSAND NINE
HUNDRED TWENTY AND NO/100 DOLLARS ($224,920.00) shall be due, and a like sum
on the first day of each month thereafter, through and including September 1,
2002.
On October 1, 2002, the sum of TWO HUNDRED THIRTY ONE THOUSAND SEVENTEEN
AND 60/100 DOLLARS ($231,017.60) shall be due, and a like sum due on the
first day of each month thereafter, through and including July 1, 2003.
On August 1, 2003, the sum of TWO HUNDRED THIRTY FOUR THOUSAND FORTY AND
80/100 DOLLARS ($234,040.80) shall be due, and a like sum on the first day
of each month thereafter, through and including September 1, 2003.
2
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Ardenwood III-F
On October 1, 2003, the sum of TWO HUNDRED FORTY THOUSAND ONE HUNDRED
THIRTY EIGHT AND 40/100 DOLLARS ($240,138.40) shall be due, and a like sum due
on the first day of each month, through and including July 1, 2004.
ON August 1, 2004, the sum of TWO HUNDRED FORTY THREE THOUSAND ONE
HUNDRED SIXTY ONE AND 60/100 DOLLARS ($243,161.60) shall be due, and a like
sum due on the first day of each month, through and including September 1,
2004.
On October 1, 2004, the sum of TWO HUNDRED FORTY NINE THOUSAND TWO
HUNDRED FIFTY NINE AND 20/100 DOLLARS ($249,259.20) shall be due, and a like
sum due on the first day of each month, through and including July 1, 2005.
On August 1, 2005, the sum of TWO HUNDRED FIFTY TWO THOUSAND TWO HUNDRED
EIGHTY TWO AND 40/100 DOLLARS ($252,282.40) shall be due, and a like sum due
on the first day of each month thereafter, through and including September 1,
2005.
On October 1, 2005, the sum of TWO HUNDRED FIFTY EIGHT THOUSAND THREE
HUNDRED EIGHTY AND NO/100 DOLLARS ($258,380.00) shall be due, and a like sum
due on the first day of each month thereafter, through and including July 1,
2006.
On August 1, 2006, the sum of TWO HUNDRED SIXTY ONE THOUSAND FOUR HUNDRED
THREE AND 20/100 DOLLARS ($261,403.20) shall be due, and a like sum due on the
first day of each month thereafter, through and including September 1, 2006.
On October 1, 2006, the sum of TWO HUNDRED SIXTY SEVEN THOUSAND FIVE
HUNDRED THREE AND 80/100 DOLLARS ($267,500.80) shall be due, and a like sum due
on the first day of each month thereafter, through and including July 1, 2007.
On August 1, 2007, the sum of TWO HUNDRED SEVENTY THOUSAND FIVE HUNDRED
TWENTY FOUR AND NO/100 DOLLARS ($270,524.00) shall be due, and a like sum due
on the first day of each month thereafter, through and including September 1,
2007.
On October 1, 2007, the sum of TWO HUNDRED SEVENTY SIX THOUSAND SIX HUNDRED
TWENTY ONE AND 60/100 DOLLARS ($276,621.60) shall be due, and a like sum due on
the first day of each month thereafter, through and including July 1, 2008.
The Aggregate Rental shall be increased by $14,913,488.62, or from
$8,271,475.20 to $23,184,963.82.
7. SECURITY DEPOSIT: Tenant's Security Deposit shall be increased by
$359,758.40, or from $193,484.80 to $553,243.20, payable upon Tenant's
execution of this Amendment No. 1.
8. PARKING: Subject to Paragraph 4 above, effective October 1, 2000,
Tenant shall lease 100% of the Building from Landlord, and shall be entitled
to one hundred percent (100%) of the parking appurtenant to the Leased
Premises as shown on EXHIBIT A. Effective October 1, 2000, Lease Paragraph 44
("PARKING") shall be deleted in its entirety.
9. TENANT MAINTENANCE: Subject to Paragraph 4 above, effective October
1, 2000, Lease Paragraph 7 ("Tenant Maintenance") shall be deleted in its
entirety and replaced with the following:
"7. TENANT MAINTENANCE. Tenant shall, at its sole cost and expense,
keep and maintain the Premises (including appurtenances) and every part
thereof in a high standard of maintenance and repair, or replacement, and
in good and sanitary condition. Tenant's maintenance and repair
responsibilities herein referred to include, but are not limited to,
janitorization, all windows (interior and exterior), window frames, plate
glass and glazing (destroyed by accident or act of third parties), truck
doors, plumbing systems (such as water and drain lines, sinks, toilets,
faucets, drains, showers and water fountains), electrical systems (such
as panels, conduits, outlets, lighting fixtures, lamps, bulbs, tubes and
ballasts), hearing and air conditioning systems (such as compressors,
fans, air handlers, ducts, mixing boxes, thermostats, time clocks,
boilers, heaters, supply and return grills), structural elements and
exterior surfaces of the building, store fronts, roofs,
3
<PAGE>
Ardenwood III-F
downspouts, all interior improvements within the Premises including but not
limited to wall coverings, window coverings, carpet, floor coverings,
partitioning, ceilings, doors (both interior and exterior), including
closing mechanisms, latches, locks, skylights (if any), automatic fire
extinguishing systems, and elevators and all other interior improvements
of any nature whatsoever, and all exterior improvements including but not
limited to landscaping, sidewalks, driveways, parking lots including
striping and sealing, sprinkler systems, lighting, ponds, fountains,
waterways, and drains. Tenant agrees to provide carpet shields under all
rolling chairs or to otherwise be responsible for wear and tear of the
carpet caused by such rolling chairs if such wear and tear exceeds that
caused by normal foot traffic in surrounding areas. Areas of excessive
wear shall be replaced at Tenant's sole expense upon Lease termination.
Tenant hereby waives all rights under, and benefits of, Subsection 1 of
Section 1932 and Section 1941 and 1942 of the California Civil Code and
under any similar law, statute or ordinance now or hereafter in effect.
In the event any of the above maintenance responsibilities apply to any
other tenant(s) of Landlord where there is common usage with other
tenant(s), such maintenance responsibilities and charges shall be
allocated to the Lease Premises by square footage or other equitable
basis as calculated and determined by Landlord."
10. EXPENSES OF OPERATION, MANAGEMENT AND MAINTENANCE OF THE COMMON
AREAS OF THE PARCEL AND BUILDING IN WHICH THE PREMISES ARE LOCATED: Subject to
Paragraph 4 above, effective October 1, 2000, Lease Paragraph 42 ("Expenses of
Operation, Management and Maintenance of the Common Areas of the Parcel and
Building in Which the Premises are Located") shall be deleted in its entirety
and replaced with the following:
"42. EXPENSES OF OPERATION, MANAGEMENT, AND MAINTENANCE OF THE
DRIVEWAY, PARKING LOT AND LANDSCAPED AREAS OF THE PARCEL ON WHICH THE
PREMISES ARE LOCATED: It is understood by Landlord and Tenant that the
areas outlined in Orange on EXHIBIT A attached hereto are considered Common
Areas; said Common Areas are limited to the drive way entrance; the
fountain (if any) and landscaping included in said Common Areas. Landlord
shall maintain, repair and replace as needed said improvements within
the Common Areas and Tenant shall pay its pro-rata share of the total
costs for all such work completed in the Common Areas; unless, however,
Tenant is responsible for damage to the same which has resulted in said
repairs and/or replacement, in which case Tenant shall pay one hundred
percent (100%) of said costs. Landlord shall also maintain on behalf of
Tenant, the non-Common Area landscape areas, asphalt paved areas
(including the Parking Lot) and sidewalks on the Premises and Tenant
shall pay one hundred percent (100%) of those costs. The cost incurred
in both the Common Areas and non-Common Areas include, but are not
limited to license, permit and inspection fees; utility charges
associated with exterior landscaping and lighting, all charges incurred
in the maintenance, repair and replacement as necessary of the:
landscaped areas, fountains (if any), parking lots, parking lot lighting,
sidewalks, driveways, maintenance, repair and replacement of all
fountains (if any) and fountain related fixtures and electrical,
mechanical and plumbing systems; supplies, materials, equipment and
tools; the cost of capital expenditures which have the effect of reducing
operating expenses, provided, however, that in the event Landlord makes
such capital improvements, Landlord may amortize its investment in said
improvements (together with interest at the rate of fifteen (15%) percent
per annum on the unamortized balance) as an operating expense in
accordance with standard accounting practices, provided, that such
amortization is not at a rate greater than the anticipated savings in the
operating expenses. Tenant hereby waives all rights hereunder, and
benefits of, subsection 1 of Section 1932 and Sections 1941 and 1942 of
the California Civil Code and under any similar law, statute or ordinance
now or hereafter in effect.
Said costs for services provided by Landlord shall be paid by Tenant as
Additional Rent in accordance with Paragraph 4D of the Lease."
11. UTILITIES: Subject to Paragraph 4 above, effective October 1, 2000,
Lease Paragraph 43 ("Utilities") shall be deleted in its entirety and replaced
with the following:
"43. UTILITIES. On October 1, 2000, Tenant shall have all utilities
servicing the Premises transferred into Tenant's name. Tenant shall pay
promptly, as the same become due, all charges for water, gas,
electricity, telephone, telex and other electronic
4
<PAGE>
Ardenwood III-F
communication service, sewer service, waste pick-up and any other
utilities, materials or services furnished directly to or used by Tenant
on or about the Premises during the Term of this Lease, including,
without limitation, any temporary or permanent utility surcharge or
other exactions whether or not hereinafter imposed. In the event the
above charges apply to any other tenant(s) of Landlord where there is
common usage with other tenant(s), such charges shall be allocated to
the Leased Premises by square footage or other equitable basis as
calculated and determined by Landlord.
Landlord shall not be liable for and Tenant shall not be entitled
to any abatement or reduction of Rent by reason of any interruption or
failure of utility services to the Premises when such interruption or
failure is caused by accident, breakage, repair, strikes, lockouts, or
other labor disturbances or labor disputes of any nature, or by any
other cause, similar or dissimilar, beyond the reasonable control of
Landlord."
12. ASSIGNMENT AND SUBLETTING: Notwithstanding anything to the contrary
in Lease Paragraph 16 ("Assignment and Subletting"), Landlord hereby
acknowledges that, at any any time from October 1,2000 through September 30,
2002, Tenant may sublease all or a portion of the Increased Premises.
Provided (i) Tenant is not in default of this lease and (ii) the rent due
under the proposed sublease is no less than $5.25 per square foot per month
(on a triple net basis), Landlord agrees that it will not exercise its right,
as provided for in Paragraph 16, to recapture the proposed sublet premises
and/or to terminate the Lease as a result of a request by Tenant to sublease
any portion of the Increased Premises to a single subtenant for a sublease
term not to extend beyond September 30, 2002 ("Permitted Sublease"). In such
event, Landlord agrees to issue Landlord's standard consent to said sublease,
subject to (a) Tenant submitting to Landlord a copy of said sublease (prior
to said sublease commencing), (b) Landlord, Tenant and Subtenant thereafter
executing Landlord's standard Consent to Sublease agreement and (c) Landlord
receives payment from Tenant of Landlord's costs for processing said Sublease
Consent prior to said sublease commencing. Notwithstanding anything to the
contrary in Paragraph 16, prior to paying any Excess Rent to Landlord related
to said Permitted Sublease, Tenant shall first be entitled to recover from
such Excess Rent the amount of any reasonable leasing commissions paid by
Tenant to third party brokers not affiliated with Tenant.
EXCEPT AS MODIFIED HEREIN, all other terms, covenants, and
conditions of said January 28, 2000 Lease Agreement shall remain in full
force and effect.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Amendment
No. 1 to Lease as of the day and year last written below.
LANDLORD: TENANT:
JOHN ARRILLAGA SURVIVOR'S CIPHERGEN BIOSYSTEMS, INC.
TRUST a Delaware corporation
By /s/ John Arrillaga By /s/ William E. Rich
------------------ -------------------
John Arrillaga, Trustee
William E. Rich
----------------------
Date: 9/18/00 Print or Type Name
RICHARD T. PEERY SEPARATE Title: President & CEO
PROPERTY TRUST
By /s/ Richard T. Peery Date: 9/7/00
--------------------------
Richard T. Peery, Trustee
Date: 9/14/00
5
<PAGE>
EXHIBIT A TO AMENDMENT NO. 1 DATED AUGUST 8, 2000 BY AND BETWEEN THE JOHN
ARRILLAGA SURVIVOR'S TRUST AND THE RICHARD T. PEERY SEPARATE PROPERTY TRUST,
AS LANDLORD AND CIPHERGEN BIOSYSTEMS, INC., AS TENANT.
(IMAGE)
<PAGE>
EXHIBIT B TO AMENDMENT NO. 1 DATED AUGUST 8, 2000 BY AND BETWEEN THE JOHN
ARRILLAGA SURVIVOR'S TRUST AND THE RICHARD T. PEERY SEPARATE PROPERTY TRUST,
AS LANDLORD, AND CIPHERGEN BIOSYSTEMS, INC., AS TENANT.
(IMAGE)