1
EXHIBIT 10.17 - FACILITIES LEASE
MARINA VILLAGE
INDUSTRIAL GROSS OFFICE LEASE
BASIC LEASE INFORMATION
Date: September 1, 1996
Landlord: ALAMEDA REAL ESTATE INVESTMENTS,
a California limited partnership
Tenant: INSITE VISION INCORPORATED, Lease Reference
a Delaware corporation
Premises and Building: Approximately 18,869 rentable square feet (rsf) in 965 Atlantic Paragraph 1
Avenue and approximately 10,533 rsf in 2020 Challenger Drive,
Alameda, California
Term Commencement: January 1, 1997 Paragraph 2
Term Expiration: December 31, 2001 Paragraph 2
Base Rent: Paragraph 3(a)
000 Xxxxxxxx Xxxxxx 2020 Challenger Dr. Total
1/1/97-12/31/97 $24,661.78/month $13,471.71/month $38,133.49
1/1/98-12/31/98 $25,416.54/month $13,893.03/month $39,309.57
1/1/99-12/31/99 $26,171.30/month $14,314.35/month $40,485.65
1/1/00-12/31/00 $26,926.06/month $14,735.67/month $41,661.73
1/1/01-12/31/06 $27,680.82/month $15,156.99/month $42,837.81
Tenant's Percentage Share: 965 Atlantic Premises - 18,869 rsf ) 23,911 rsf = 78.91% Paragraph 4(a)
2020 Challenger Premises - 10,533 rsf ) 20,254 rsf = 31.54%
Base Year: 1997 Paragraph 4(a)
Use: Research, development and light manufacturing with ancillary office. Paragraph 6
Security Deposit: None required. Paragraph 15
Xxxxxx's Address for Notices INSITE VISION INCORPORATED Paragraph 19
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Xxxxxxxx's Address for Notices Paragraph 19
Alameda Real Estate Investments With a Copy To:
c/o Vintage Properties Marina Village
000 Xxxxxx Xxxxxx 0000 Xxxxxx Xxxxxxx Xxxxxxx
Xxxx Xxxx, XX 00000 Suite 100
Attn: Joseph X. Xxxxxx Xxxxxxx, XX 00000
Attn: Property Manager
Exhibit(s) and Addendum(s): Paragraph 22
43
2
Exhibit A: Diagram of leased Premises
Addendum
The provisions of the Lease identified above in the margin are those provisions
where references to particular Basic Lease Information appear. Each such
reference shall incorporate the applicable Basic Lease Information. In the event
of any conflict between any Basic Lease Information and the Lease, the latter
shall control.
TENANT: LANDLORD:
INSITE VISION INCORPORATED, ALAMEDA REAL ESTATE INVESTMENTS,
a Delaware corporation a California limited partnership
By: Vintage Alameda Investments, LP, a
California Limited partnership,
Operating General Partner
By: Vintage Properties - Alameda
Commercial, a California
corporation, Managing General
Partner
By: /s/ Xxxxxxx X. Xxxx By: /s/ Xxxxxx X. Xxxxxx
----------------------------- -----------------------------
Its: Vice President Its: President
---------------------------- ----------------------------
MARINA VILLAGE
INDUSTRIAL GROSS
OFFICE TECH
LEASE
THIS LEASE, dated as of September 1, 1996, for purposes of reference only, is
made and entered into by and between ALAMEDA REAL ESTATE INVESTMENTS, a
California limited partnership ("Landlord"), and INSITE VISION INCORPORATED, a
Delaware corporation ("Tenant").
WITNESSETH
1. Premises. Landlord hereby leases to Tenant, and Tenant hereby leases
from Landlord for the term of this Lease and at the rental and upon the
conditions set forth below, the premises described in the Basic Lease
Information and identified on the diagram attached hereto as Exhibit A.
Landlord and Tenant agree that the amount of rentable square feet as
set forth in the Basic Lease Information, shall be binding and
conclusive for all purposes of this Lease. Subject to any obligations
of Landlord as set forth below relating to improvement of the premises,
Tenant shall accept the premises in its "as-is" condition at the
commencement of the term. The premises are located within the building
(the "Building") commonly known as described in the Basic Lease
Information.
2. Term.
a. The term of this Lease shall commence and, unless sooner terminated
as hereinafter provided, shall end on the dates respectively specified
in the Basic Lease Information. If Landlord, for any reason whatsoever,
cannot deliver possession of the premises to Tenant at the commencement
of the term, this Lease shall not be void or voidable, nor shall
44
3
Landlord be liable to Tenant for any loss or damage resulting
therefrom, but in that event, subject to any contrary provisions in any
agreement with Landlord related to the initial improvement of the
premises, rental shall be waived for the period between commencement of
the term and the time when Landlord can deliver possession. If, for any
reason beyond Landlord's reasonable control, Landlord is unable to
obtain necessary governmental approvals to complete and deliver
possession of the premises to Tenant, then Landlord may, upon notice to
Tenant, terminate this Lease and both parties shall be relieved of any
and all obligations hereunder.
b. Subject to a mutually agreed upon time frame, Landlord shall
coordinate and pay the costs of recarpeting and repainting Tenant's 965
Atlantic premises and provide turnkey improvements with Tenant's 2020
Challenger premises; provided, however Landlord's maximum expenditure
towards such improvements shall be $3.00 per rsf of Tenant leased
premises, or $88,206.00. Additionally, Xxxxxxxx agrees to reimburse
Xxxxxx's leasing consultant, CB Commercial, $2.00 per rsf of Tenant's
leased premises, or $58,804.00 within 15 days of term commencement
under the Lease.
3. Rent.
a. Tenant shall pay to Landlord as rental the amount specified in the
Basic Lease Information as the Base Rent, payable in advance on the
commencement of the term and on or before the first day of each and
every successive calendar month during the term. If the term commences
on other than the first day of a calendar month, the first payment of
rent shall be appropriately prorated on the basis of a 30-day month.
The anniversary date for rental increases as set forth in the Basic
Lease Information shall be the first calendar day of the month in which
the Lease term commenced. If the last day of the term falls on a date
other than the last day of the month, then the term shall be extended
so that the last day of the term shall be the last calendar day of the
month in which the term would otherwise end.
b. Tenant shall pay, as additional rent, all amounts of money required
to be paid to Landlord by Tenant under this lease in addition to
monthly rent, whether or not the same be designated "additional rent."
If such amounts are not paid at the time provided in this Lease, they
shall nevertheless be collectable as additional rent with the next
installment of monthly rent thereafter falling due, but nothing herein
contained shall be deemed to suspend or delay the payment of any amount
of money at the time the same becomes due and payable hereunder, or
limit any other remedy of Landlord.
[SEE ADDENDUM TO LEASE]
c. Tenant hereby acknowledges that late payment by the Tenant to
Landlord of rent and other amounts due hereunder will cause Landlord to
incur costs not contemplated by this Lease, the exact amount of which
will be extremely difficult to ascertain. Such costs include, but are
not limited to, processing and accounting charges, and late charges
which may be imposed on Landlord by the terms of any trust deed
covering the premises. Accordingly, if any installments of rent or any
other sums due from Tenant shall not be received by Landlord when due,
then Tenant shall pay to Landlord a late charge equal to six percent
(6%) of such overdue amount. The parties hereby agree that such late
charges represent a fair and reasonable estimate of the costs Landlord
will incur by reason of late payment by Xxxxxx. Acceptance of such late
charge by Landlord shall in no event constitute a waiver of Tenant's
default with respect to such overdue amount, nor prevent Landlord from
exercising any of the other rights and remedies granted hereunder.
[SEE ADDENDUM TO LEASE]
d. Any amount due to Landlord, if not paid when due, shall bear
interest from the date due until the date paid at the rate of ten
percent (10%) per annum or, if a higher rate is legally permissible, at
the highest rate legally permitted, provided that interest shall not be
payable on late charges incurred by Tenant nor on any amounts upon
which late charges are paid by Tenant to the extent such interest would
cause the total interest to be in excess of that legally permitted.
Payment of interest shall not excuse or cure any default hereunder by
Xxxxxx.
e. All payments due from Tenant to Landlord hereunder shall be made to
Landlord without deduction or offset in lawful money of the United
States of America at Landlord's address for notices hereunder, or to
such other person or at such other place as Landlord may from time to
time designate in writing to Tenant.
4. Taxes and Operating Expenses.
[SEE ADDENDUM TO LEASE]
a. For each calendar year during the term after the year specified in
the Basic Lease Information as the Base Year, Tenant shall pay its
percentage share, as specified in the Basic Lease Information, of the
increase in Property Taxes over
45
4
Base Property Taxes and its percentage share of the increase in
Operating Expenses for such calendar year over Base Operating Expenses.
For the purposes hereof, "Property Taxes" shall mean all real property
taxes and assessments or governmentally imposed fees or charges (and
any tax levied wholly or partly in lieu thereof) levied, assessed,
confirmed, imposed or which have become a lien against the Building
(which for the purposes of defining "Property Taxes" shall include the
land underlying the Building), and "Operating Expenses" shall mean: (1)
all costs of management, operation, maintenance, and repair of the
Building, (2) the cost of all insurance maintained by Landlord with
respect to the Building and (3) the share allocable to the Building of
dues and assessments payable under any reciprocal easement or common
area maintenance agreements or declaration or by any owners'
associations affecting the Building. "Base Property Taxes" shall mean
those Property Taxes payable during the fiscal year ending in June of
the Base Year and "Base Operating Expenses" shall mean Operating
Expenses incurred by Landlord during the Base Year. Operating Expenses
for both the Base Year and each subsequent calendar year shall be
adjusted to equal Landlord's reasonable estimate of Operating Expenses
had the total rentable area of the Building been 100% occupied.
b. In the event the Building is not separately assessed for tax
purposes, then the Property Taxes to be paid by Tenant shall be
Tenant's percentage share of the product obtained by multiplying the
total of the real property taxes and assessments levied against the tax
parcel of which the Building is a part by a fraction, the numerator of
which is the rentable area of the Building and the denominator of which
is total rentable area of all improvements located within the tax
parcel of which the Building is a part.
c. Tenant shall pay to Landlord each month at the same time and in the
same manner as monthly rent 1/12th of Landlord's estimate of the
increase in Property Taxes and Operating Expenses from Base Property
Taxes and Base Operating Expenses from the then current calendar year.
Within 90 days after the close of each calendar year, or as soon after
such 90-day period as practicable, Landlord shall deliver to Tenant a
statement of actual Property Taxes and Operating Expenses for such
calendar year. If on the basis of such statement Tenant owes an amount
that is less than the estimated payments for such calendar year
previously made by Tenant, Landlord shall refund such excess to Tenant
within 30 days of delivery of such statement. If on the basis of such
statement Tenant owes an amount that is more than the estimated
payments for such calendar year previously made by Tenant, Tenant shall
pay the deficiency to Landlord within 30 days after delivery of the
statement. The obligations of Landlord and Tenant under this
subparagraph with respect to the reconciliation between estimated
payments and actual Property Taxes and Operating Expenses for the last
year of the term shall survive the termination of the Lease.
5. Other Taxes. Tenant shall pay or reimburse Landlord for any taxes upon,
measured by or reasonably attributable to the cost or value of Tenant's
equipment, furniture, fixtures, and other personal property located in
the premises or leasehold improvements made in or to the premises at
Tenant's expense; for any taxes, if any, measured by or reasonably
attributable to Tenant Improvements paid for by Landlord or Tenant in
excess of $30.00 per square foot; for any taxes, assessments, fees, or
charges imposed by any public authority or private community
maintenance association upon or by reason of the development,
possession, use or occupancy of the premises or the parking facilities
used by Tenant in connection with the premises; and for any gross
receipts tax imposed with respect to the rental payable hereunder.
[SEE ADDENDUM TO LEASE]
6. Use.
a. The premises shall be used and occupied by Tenant solely for the use
set forth in the Basic Lease Information. Tenant shall, at Tenant's
expense, comply promptly with all applicable statutes, ordinances,
rules, regulations, orders, and requirements in effect during the term
regulating Tenant's activities or the use by Tenant of the premises.
Tenant shall not use or permit the use of the premises in any manner
that will tend to create waste or a nuisance, or which shall tend
unreasonably to disturb other tenants of the Building or adjacent
buildings, nor shall Tenant place or maintain any signs on or visible
from the exterior of the premises without Landlord's written consent,
or use any corridors, sidewalks, or other areas outside of the premises
for storage or any purpose other than access to the premises. Except as
provided in paragraph 6(b) below, Tenant shall not use, keep, or permit
to be used or kept on the premises any foul or noxious gas or
substance, nor shall Tenant do or permit to be done anything in and
about the premises, either in connection with activities hereunder
expressly permitted or otherwise, which would cause a cancellation of
any policy of insurance (including fire insurance) maintained by
Landlord in connection with the premises or the Building or which would
violate the terms of any covenants, conditions, or restrictions
affecting the Building or the land on which it is located.
b. Tenant shall not cause, or allow anyone else to cause, any
hazardous, toxic, or radioactive materials (collectively "Hazardous
Materials") to be used, generated, stored, or disposed of on or about
the premises or the Building without the prior written consent of
Landlord, which consent may be withheld in the sole discretion of
Landlord and which consent may be revoked at any time. Tenant shall
strictly comply with all statutes, laws, ordinances, rules,
regulations, and
46
5
precautions now or hereafter mandated or advised by any federal, state,
local or other governmental agency with respect to the use, generation,
storage, or disposal of Hazardous Materials. As herein used, Hazardous
Materials shall include, but not be limited to, those materials
identified in Sections 66680 through 66685 of Title 22 of the
California Administrative Code, Division 4, Chapter 30, as amended from
time to time, and those substances defined as "hazardous substances,"
"hazardous materials," "hazardous wastes," or other similar
designations in the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended, 42 U.S.C. Section 9601 et seq.,
the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et
seq., the Hazardous Materials Transportation Act, 49 U.S.C. Section
1801 et seq. and any other governmental statutes, laws, ordinances,
rules, regulations, precautions.
7. Utilities.
a. Tenant shall pay for all water, sewer, gas, electricity, heat,
cooling, energy, telephone, refuse collection, alarm monitoring
services, and other utility-type services furnished to Tenant or the
premises, together with all related installation or connection charges
or deposits. Wherever it is practical to do so such services shall be
separately metered or charged to Tenant by the provider thereof and
paid for directly by Xxxxxx. To the extent any of the foregoing
services are provided by Landlord, Tenant shall reimburse Landlord for
all actual out-of-pocket costs incurred by Landlord in connection with
the provision of such services as billed by the provider thereof based
on Landlord's reasonable estimate of the level of Tenant's use or
consumption of such services. Landlord shall bill Tenant for such
services as incurred and payment shall be made by Tenant within ten
(10) days after submittal of Landlord's statement.
[SEE ADDENDUM TO LEASE]
b. Landlord shall not be in default hereunder or be liable for any
damages directly or indirectly resulting therefrom, and there shall not
be any rent abatement, by reason of any interruption or curtailment
whatsoever in utility services which is due to fire, accident, strike,
governmental authority, act of God or other causes beyond the
reasonable control of Landlord or any temporary interruption in such
services which is necessary to the making of alterations, repairs or
improvements to the Buildings or any part of it.
8. Maintenance, Repairs and Alterations.
[SEE ADDENDUM TO LEASE]
a. Subject to the provisions of paragraph 10 below, and except for
damages caused by Tenant, its agents or invitees, Landlord shall keep
in good condition and repair the foundations and exterior walls and
roof of the Building and all common areas within the Building not
leased to tenants. Tenant expressly waives the benefits of any statute
which would otherwise afford Tenant the right to make repairs at
Landlord's expense or to terminate this Lease because of Landlord's
failure to keep the premises or the Building in good order, condition,
and repair.
[SEE ADDENDUM TO LEASE]
b. Tenant shall, at Tenant's expense, maintain the interior portion of
the premises (including, but not limited to, all plumbing and
electrical connections, outlets and light bulbs) in good condition and
repair. If Tenant fails to do so, Landlord may, but shall not be
required to, enter the premises and put them in the same condition as
upon the commencement of the Lease term, and Landlord's out-of-pocket
costs thereof shall automatically become due and payable as additional
rent. Tenant shall be responsible for the provision, at its own
expense, of appropriate janitorial service for the premises. Tenant
shall also cause to be maintained, at its expense and in good operating
condition and repair, all heat, ventilating, and air conditioning
equipment installed in the premises. If Landlord so elects, Tenant
shall retain the services of Landlord or a maintenance company retained
by it to perform maintenance of Tenant's heating, ventilating and air
conditioning equipment and shall reimburse Landlord for the cost
thereof upon demand. At the expiration of the term Tenant shall deliver
up possession of the premises in good condition and repair, only
ordinary wear and tear excepted.
[SEE ADDENDUM TO LEASE]
c. Tenant shall not, without Xxxxxxxx's prior consent, make any
alterations, improvements, or additions in or about the premises. In
requesting Xxxxxxxx's consent, Tenant shall submit to Landlord complete
drawings and specifications describing such work and the identify of
the proposed contractor. As a condition to giving such consent,
Landlord may, among other things, require that Tenant remove any such
alterations, improvements or additions at the expiration of the term,
and restore the premises to their prior condition. Before commencing
any work relating to alterations, additions, or improvements affecting
the premises, Tenant shall notify landlord of the expected date of
commencement thereof and of the anticipated cost thereof, and shall
furnish such information as shall reasonably be requested by Landlord
substantiating
47
6
Xxxxxx's ability to pay for such work. Landlord shall then have the
right at any time and from time to time to post and maintain on the
premises such notices as Landlord reasonably deems necessary to protect
the premises and Landlord from mechanics' liens or any other liens. In
any event, Tenant shall pay when due all claims for labor or materials
furnished to or for Tenant at or for use in the premises. Tenant shall
not permit any mechanics' liens to be levied against the premises for
any labor or material furnished to Tenant or claimed to have been
furnished to Tenant or to Tenant's agents or contractors in connection
with work of any character performed or claimed to have been performed
on the premises by or at the direction of Tenant. All alterations,
improvements, or additions in or about the premises performed by or on
behalf of Tenant shall be done in a first-class, workmanlike manner,
shall not unreasonably lessen the value of the leasehold improvements
in the premises, and shall be completed in compliance with all
applicable laws, ordinances, regulations, and orders of any
governmental authority having jurisdiction thereover, as well as the
requirements of insurers of the premises and the Building. Upon
Landlord's request, Tenant shall remove any contractor, subcontractor,
or material supplier from the premises and the Building if the work or
presence of such person or entity results in labor disputes in or about
the Building or the Marina Village Project, or damage to the premises,
Building or Project. Unless Landlord requires their removal as set
forth above, all alterations, improvements or additions which may be
made on the premises shall become the property of Landlord and remain
upon and be surrendered with the premises at the expiration of the
term; provided, however, that Tenant's machinery, equipment and trade
fixtures, other than any which may be affixed to the premises so that
they cannot be removed without material damage to the premises, shall
remain the property of Tenant and may be removed by Tenant provided
further Tenant shall be responsible for repairing all damage to the
premises caused by such removal.
9. Insurance and Indemnity.
[SEE ADDENDUM TO LEASE]
a. Tenant shall obtain and maintain during the term of this Lease
comprehensive general liability insurance with combined single limit
for personal injury and property damage in a form and with carriers
acceptable to Landlord in an amount not less than $1,000,000, and
employer's liability and workers' compensation insurance as required by
law. Tenant's comprehensive general liability insurance policy shall be
endorsed to provide that (i) it may not be canceled or altered in such
a manner as adversely to affect the coverage afforded thereby without
30 days' prior written notice to Landlord, (ii) Landlord is named as
additional insured, (iii) the insurer acknowledges acceptance of the
mutual waiver of claims by Landlord and Tenant pursuant to subparagraph
(b) below, and (iv) such insurance is primary with respect to Landlord
and that any other insurance maintained by Landlord is excess and
noncontributing with such insurance. If, in the opinion of Xxxxxxxx's
insurance adviser, based on a substantial increase in recovered
liability claims generally, the specified amounts of coverage are no
longer adequate, such coverage shall be appropriately increased. Prior
to the commencement of the term, Tenant shall deliver to Landlord a
duplicate of such policy or a certificate thereof to Landlord for
retention by it, with endorsements, and at least 30 days prior to the
expiration of such policy of any renewal thereof, Tenant shall deliver
to Landlord a replacement or renewal binder, followed by duplicate
policy or certificate within a reasonable time thereafter. If Tenant
fails to obtain such insurance or to furnish Landlord any such
duplicate policy or certified as herein required, Landlord may, at its
election, without notice to Tenant and without any obligation to do so,
procure and maintain such coverage and Tenant shall reimburse Landlord
on demand as additional rent for any premium so paid by Landlord.
b. Landlord hereby waives all claims against Tenant, and Xxxxxx's
officers, directors, partners, employees, agents and representatives
for loss or damage to the extent that such loss or damage is insured
against under any valid and collectible insurance policy insuring
Landlord or would have been insured against but for any deductible
amount under any such policy, and Tenant waives all claims against
Landlord including Landlord's officers, directors, partners, employees,
agents, and representatives for loss or damage to the extent such loss
or damage is insured against under any valid and collective insurance
policy insuring Tenant or required to be maintained by Tenant under
this Lease, or would have been insured against but for any deductible
amount under any such policy.
[SEE ADDENDUM TO LEASE]
c. As this Lease does not involve the public interest and insurance is
available to Tenant which will protect it against such claims, damage,
injury or death, Tenant hereby waives all claims against Landlord for
damage to any property or injury to or death of any person in, upon or
about the premises or the Building arising at any time and from any
cause. Tenant shall hold Landlord harmless from and defend Landlord
against all claims (except such as arises from the sole negligence or
willful misconduct of Landlord, its agents, employees or contractors)
(i) for damage to any property or injury to or death of any person
arising from the use of the premises by Xxxxxx, or (ii) arising from
the negligence or willful misconduct of Tenant, its employees, agents,
or contractors in, upon or about those portions of the Building other
than the premises. The foregoing indemnity obligation of Tenant shall
include reasonable attorneys' fees, investigation costs, and
48
7
all other reasonable costs and expenses incurred by Landlord from the
first notice that any claim or demand is to be made or may be made. The
provisions of this paragraph 9 shall survive the termination of this
Lease with respect to any damage, injury, or death occurring prior to
such termination.
[SEE ADDENDUM TO LEASE]
10. Damage or Destruction.
a. If during the term the premises are totally or partially destroyed,
or any other portion of the Building is damaged in such a way that
Tenant's use of the premises is materially interfered with, from a risk
which is wholly covered by insurance, Landlord shall proceed with
reasonable diligence to repair the damage or destruction and this Lease
shall not be terminated; provided, however, that if in the opinion of
Landlord's architect the work of repair cannot be completed in 90 days
Landlord may at its election terminate the Lease by notice given to
Tenant.
[SEE ADDENDUM TO LEASE]
b. If during the term the premises are totally or partially destroyed,
or any other portion of the Building is damaged in such a way that
Tenant's use of the premises is materially interfered with, from a risk
which is not wholly covered by insurance, Landlord may at its election
by notice given to Tenant restore the premises or terminate this Lease.
c. In case of destruction or damage which materially interferes with
Xxxxxx's use of the premises, if this Lease is not terminated as above
provided, rent shall be abated during the period required for the work
of repair based upon the degrees of interference with Xxxxxx's use of
the premises. Except for abatement of rent, Tenant shall have no claim
against Landlord for any loss suffered by Tenant due to damage or
destruction of the premises or any work of repair undertaken as herein
provided. Tenant expressly waives the provisions of Sections 1932 and
1933(4) of the California Civil Code.
[SEE ADDENDUM TO LEASE]
11. Eminent Domain. If all or any part of the premises shall be taken as a
result of the exercise of power of eminent domain, this Lease shall
terminate as to the part so taken as of the date of taking, and in the
case of a partial taking, either Landlord or Tenant shall have the
right to terminate this Lease as to the balance of the premises by
notice to the other within thirty (30) days after such date if the
portion of the premises taken shall be of such extent and nature as
substantially to handicap, impede or impair Tenant's use of the balance
of the premises for Tenant's purposes. In the event of any taking,
Landlord shall be entitled to any and all compensation, damages,
income, rent, awards, or any interest therein whatsoever which may be
paid or made in connection therewith, and Tenant shall have no claim
against Landlord for the value of any unexpired term of this Lease or
otherwise. In the event of a partial taking of the premises which does
not result in a termination of this Lease, the monthly rental
thereafter to be paid shall be equitably reduced on a square footage
basis.
12. Assignment and Subletting
a. Tenant shall not assign this Lease or any interest herein or sublet
the premises or any part thereof without the prior consent of Landlord,
which consent shall not be unreasonably withheld; Tenant shall not
hypothecate this Lease or any interest herein or permit the use of the
premises by any party other than Tenant without the prior consent of
Landlord, which consent may be withheld by Landlord in its absolute
discretion. This Lease shall not, nor shall any interest herein, be
assignable as to the interest of Tenant by operation of law without the
consent of Landlord. Any of the foregoing acts without such consent
shall be void and shall, at the option of Landlord, terminate this
Lease. In connection with each consent requested by Xxxxxx, Xxxxxx
shall submit to Landlord the terms of the proposed transaction, the
identity of the parties to the transaction, the proposed documentation
for the transaction, current financial statements of any proposed
assignee or sublessee and all other information reasonably requested by
Xxxxxxxx concerning the proposed transaction and the parties involved
therein.
b. Without limiting the other instances in which it may be reasonable
for Landlord to withhold its consent to an assignment or subletting,
Landlord and Tenant acknowledge that it shall be reasonable for
Landlord to withhold its consent in the following instances:
(1) if the proposed assignee or sublessee is a governmental
agency;
(2) if, in Landlord's reasonable judgment, the use of the premises
by the proposed assignee or sublessee would entail any
alterations which would lessen the value of the leasehold
improvements in the premises, or would require increased
services by Landlord;
49
8
[SEE ADDENDUM TO LEASE]
(3) if, in Landlord's reasonable judgment, the financial worth of
the proposed assignee or sublessee does not meet the credit
standards applied by Landlord for other tenants under leases
with comparable terms, or the character, reputation or
business of the proposed assignee or sublessee is not
consistent with the quality of the other tenancies in the
Building;
[SEE ADDENDUM TO LEASE]
(4) in the case of a subletting of less than the entire premises,
if the subletting would result in the division of the premises
into more than two subparcels, would create a subparcel of a
configuration that is not suitable for normal leasing
purposes, or would require access to be provided through space
leased or held for lease to another tenant or improvements to
be made outside of the premises; or
(5) if, at the time consent is requested or at any time prior to
the granting of consent, Tenant is in default under the Lease
or would be in default under the Lease but for the pendency of
any grace or cure period under paragraph 13 below.
c. If at any time or from time to time during the term of this Lease
Tenant desires to sublet all or any part of the premises, Tenant shall
give notice to Landlord setting forth the terms of the proposed
subletting and the space so proposed to be sublet. Landlord shall have
the option, exercisable by notice given to Tenant within 20 days after
Xxxxxx's notice is given, either to sublet from Tenant such space at
the rental and other terms set forth in Tenant's notice, or, if the
proposed subletting is for the entire premises for a sublet term ending
within the last year of the term of this Lease, to terminate this
Lease. If Landlord does not exercise such option, Tenant shall be free
to sublet such space to any third party on the same terms set forth in
the notice given to Landlord, subject to obtaining Landlord's prior
consent as hereinabove provided.
d. As used in this paragraph 12, the term "assign" or "assignment"
shall include, without limitation, any sale, transfer, or other
disposition of all or any position of Tenant's estate under this Lease,
whether voluntary or involuntary, and whether by operation of law or
otherwise including any of the following:
[SEE ADDENDUM TO LEASE]
(1) If Tenant is a corporation: (i) any dissolution, merger,
consolidation, or other reorganization of Tenant or (ii) a
sale of more than 50% of the value of the assets of Tenant or
(iii) if Tenant is a corporation with fewer than 500
shareholders, sale or other transfer of a controlling
percentage of the capital stock of Tenant. The phrase
"controlling percentage" means the ownership of, and the right
to vote, stocks possessing at least 50% of the total combined
voting power of all classes of Tenant's stock issues,
outstanding and permitted to vote for the election of
directors;
(2) If Tenant is a trust the transfer of more than 50% of the
beneficial interest of Xxxxxx, or the dissolution of the
trust;
(3) If Tenant is a partnership or joint venture, the withdrawal,
or the transfer of the interest of any general partner or
joint venturer or the dissolution of the partnership or joint
venture;
(4) If Tenant is composed of tenants-in-common, the transfer of
interest of any cotenants or the partition or dissolution of
the cotenancy.
e. No sublessee (other than Landlord if it exercises its option
pursuant to subparagraph (c) above) shall have a right further to
sublet, and any assignment by a sublessee of its sublease shall be
subject to Landlord's prior consent in the same manner as if Tenant
were entering into a new sublease.
[SEE ADDENDUM TO LEASE]
f. In the case of an assignment, one half of all sums or other economic
consideration received by Xxxxxx as a result of such assignment shall
be paid to Landlord after first deducting the unamortized cost of
leasehold improvements paid for by Xxxxxx, and the cost of any real
estate commissions incurred in connection with such assignment. In the
event such consideration is received by Tenant in installments, the
portion of each installment to be paid to Landlord shall be determined
by multiplying the installment by a fraction, the numerator of which is
the total amount of the foregoing
50
9
permitted deductions and the denominator of which is the total
consideration receivable by Xxxxxx as a result of such assignment.
[SEE ADDENDUM TO LEASE]
g. In the case of a subletting, one half of all sums or economic
consideration received by Tenant as a result of such subletting shall
be paid to Landlord after first deducting (i) the rental due hereunder,
prorated to reflect only rental allocable to the sublet portion of the
premises, (ii) the cost of leasehold improvements made to the sublet
portion of the premises at Tenant's cost, amortized over the term of
this Lease except for leasehold improvements made for the specific
benefit of the sublessee, which shall be amortized over the term of the
sublease, and (iii) the cost of any real estate commissions incurred in
connection with such subletting, amortized over the term of the
sublease.
h. Regardless of Landlord's consent, no subletting or assignment shall
release Tenant of Tenant's obligation nor alter the primary liability
of Tenant to pay the rental and to perform all other obligations to be
performed by Tenant hereunder. The acceptance of rental by Landlord
from any other person shall not be deemed to be a waiver by Landlord of
any provision hereof. Consent to one assignment or subletting shall not
be deemed consent to any subsequent assignment or subletting. In the
event of default by any assignee of Tenant or any successor of Xxxxxx
in the performance of any of the terms hereof, Landlord may proceed
directly against Tenant without the necessity of exhausting remedies
against such assignee or successor. Landlord may consent to subsequent
assignments or subletting of this Lease or amendments or modifications
to this Lease with assignees of Tenant, without notifying Tenant, or
any successor of Tenant, and without obtaining its or their consent
thereto and such action shall not relieve Tenant of liability under
this Lease.
i. In the event Tenant shall assign or sublet the premises or request
the consent of Landlord to any assignment or subletting or if Tenant
shall request the consent of Landlord for any act that Tenant proposes
to do, then Tenant shall pay Landlord's reasonable attorneys' fees
incurred in connection therewith.
[SEE ADDENDUM TO LEASE]
13. Default by Tenant.
a. The following events shall constitute events of default under
this Lease:
[SEE ADDENDUM TO LEASE]
(1) a default by Xxxxxx in the payment of any rent or other sum
payable hereunder for a period of 3 days after the same is
due;
(2) a default by Tenant in the performance of any of the other
terms, covenants, agreements, or conditions contained herein
and, if the default is curable, the continuation of such
default for a period of 10 days after notice by Landlord or
beyond the time reasonably necessary for cure if the default
is of the nature to require more than 10 days to remedy,
provided that if Tenant has defaulted in the performance of
the same obligation one or more times in any twelve-month
period and notice of such default has been given by Landlord
in each instance, no cure period shall thereafter be
applicable hereunder;
(3) the bankruptcy or insolvency of Tenant, any transfer by Xxxxxx
in fraud of creditors, assignment by Tenant for the benefit of
creditors, or the commencement of any proceedings of any kind
by or against Tenant under any provision of the Federal
Bankruptcy Act or under any other insolvency, bankruptcy or
reorganization act unless, in the event any such proceedings
are involuntary, Tenant is discharged from the same within 60
days thereafter; the appointment of a receiver for a
substantial part of the assets of Tenant; or the levy upon
this Lease or any estate of Tenant hereunder by any attachment
or execution; and
(4) the abandonment of the premises.
b. Upon the occurrence of any event of default by Tenant
hereunder, Landlord may, at its option and without any further
notice or demand, in addition to any other rights and remedies
given hereunder or by law, do any of the following:
(1) Landlord shall have the right, so long as default continues,
to give the notice of termination to Tenant, and on the date
specified in such notice this Lease shall terminate.
51
10
(2) In the event of any such termination of this Lease, Landlord
may then or any time thereafter, reenter the premises and
remove therefrom all persons and property and again repossess
and enjoy the premises, without prejudice to any other
remedies that Landlord may have by reason of Tenant's default
or of such termination.
(3) In the event of any such termination of this Lease, and in
addition to any other rights and remedies Landlord may have,
Landlord shall have all of the rights and remedies of a
landlord provided by Section 1951.2 of the California Civil
Code. The amount of damages which Landlord may recover in
event of such termination shall include, without limitation,
(i) the worth at the time of award (computed by discounting
such amount at the discount rate of the Federal Reserve Bank
of San Francisco at the time of award plus one percent) of the
amount by which the unpaid rent for balance of the term after
the time of award exceeds the amount of rental loss that
Tenant proves could be reasonably avoided, (ii) all reasonable
legal expenses and other related costs incurred by Landlord
following Tenant's default, (iii) all costs incurred by
Landlord in restoring the premises to good order and
condition, or in remodeling, renovating or otherwise preparing
the premises for reletting, and (iv) all costs (including,
without limitation, any brokerage commissions) incurred by
Landlord in reletting the premises.
(4) For the purpose of determining the unpaid rent in the event of
a termination of this Lease, or the rent due hereunder in the
event of a reletting of the premises, the monthly rent
reserved in this Lease shall be deemed to be the sum of the
rental due under paragraph 3 above and the amounts last
payable by Tenant pursuant to paragraph 4 above.
(5) After terminating this Lease, Landlord may remove any and all
personal property located in the premises and place such
property in a public or private warehouse or elsewhere at the
sole cost and expense of Tenant.
c. Even though Xxxxxx has breached this Lease and abandoned the
premises, this Lease shall continue in effect for so long as Landlord
does not terminate Tenant's right to possession, and Landlord may
enforce all its rights and remedies under this Lease, including the
right to recover rental as it becomes due under this Lease. Acts of
maintenance or preservation, efforts to relet the premises, or the
appointment of a receiver upon initiative of Landlord to protect
Xxxxxxxx's interest under this Lease, shall not constitute a
termination of Tenant's right to possession.
d. The remedies provided for in this Lease are in addition to any other
remedies available to Landlord at law or in equity, by statute or
otherwise.
[SEE ADDENDUM TO LEASE]
14. Default by Landlord. Landlord shall not be in default unless Landlord
fails to perform obligations required of Landlord hereunder within a
reasonable time, but in no event later than 30 days after notice by
Tenant to Landlord specifying wherein Landlord has failed to perform
such obligation; provided, however, that if the nature of Landlord's
obligation is such that more than 30 days are required for performance,
then Landlord shall not be in default if Landlord commences performance
within such 30 day period and thereafter diligently prosecutes the same
to completion.
15. Security Deposit. On execution of this Lease Tenant shall deposit with
Landlord the sum specified in the Basic Lease Information (the
"Deposit"). The Deposit shall be held by Landlord as security for the
performance by Tenant of all of the provisions of this Lease. If Tenant
fails to pay rent or other charges due hereunder, or otherwise defaults
with respect to any provisions of this Lease, Landlord may use, apply,
or retain all or any portion of the Deposit for the payment of any rent
or other charge in default, or the payment of any other sum to which
Landlord may become obligated by reason of Tenant's default, or to
compensate Landlord for any loss or damage which Landlord may suffer
thereby. If Landlord so uses or applies all or any portion of the
Deposit, then within 10 days after demand therefor Tenant shall Deposit
cash with Landlord in an amount sufficient to restore the Deposit to
the full amount thereof, and Xxxxxx's failure to do so shall be a
material breach of this Lease. Landlord shall not be required to keep
the Deposit separate from its general accounts. If Xxxxxx performs all
of Tenant's obligations hereunder, the Deposit, or so much thereof as
has not theretofore been applied by Landlord, shall be returned,
without payment of interest for its use, or Tenant (or, at Landlord's
option, to the last assignee, if any, of Xxxxxx's interest hereunder)
at the expiration of the term hereof, and after Xxxxxx has vacated the
premises. No trust relationship is created herein between Landlord and
Tenant with respect to the Deposit.
16. Estoppel Certificate.
a. Tenant shall at any time upon not more than 10 days' prior notice
from Landlord execute, acknowledge and deliver to Landlord a statement
certifying (i) 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) (ii) the date to which the rent, security deposit, and other
sums payable hereunder have been paid, (ii) acknowledging that there
are not,
52
11
to Xxxxxx's knowledge, any uncured defaults on the part of Landlord
hereunder, or specifying such defaults, if any, which are claimed, and
(iv) such other matters as may reasonably be requested by Landlord. Any
such statement may be conclusively relied upon by any prospective
purchaser or encumbrancer of the Building.
[SEE ADDENDUM TO LEASE]
b. Tenant's failure to deliver such statement within such time shall be
conclusive upon Tenant, (i) that this lease is in full force and
effect, without modification except as may be represented by Landlord,
(ii) that there are no uncured defaults in Landlord's performance, and
(iii) that not more than one month's rent has been paid in advance.
c. If the Landlord desires to finance or refinance the Building, Xxxxxx
agrees to deliver to any lender designated by Landlord such financial
statements of Tenant as may be reasonably required by such lender. All
such financial statements shall be received by Tenant in confidence and
shall be used for the purposes herein set forth.
17. Subordination. This Lease, at Landlord's option, shall subordinate to
any ground lease, mortgage, deed of trust, or any other hypothecation
for security now or hereafter placed upon the Building and to any and
all advances made on the security thereof and to all renewals,
modifications, consolidations, replacements and extensions thereof.
Notwithstanding such subordination, Xxxxxx's right to quiet possession
of the premises shall not be disturbed if Tenant is not in default and
so long as Tenant shall pay the rent and observe and perform all of the
provisions of this Lease, unless this Lease is otherwise terminated
pursuant to its terms. If any mortgagee, trustee, or ground lessor
shall elect to have this Lease prior to the lien of its mortgage, deed
of trust or ground lease, and shall give notice thereof to Tenant, this
Lease shall be deemed prior to such mortgage, deed of trust, or ground
lease, whether this Lease is dated prior to or subsequent to the date
of said mortgage, deed of trust or ground lease or the date of
recording thereof. If any mortgage or deed of trust to which this Lease
is subordinate is foreclosed or a deed in lieu of foreclosure is given
to the mortgagee or beneficiary, Tenant shall attorn to the purchase at
the foreclosure sale or to the grantee under the deed in lieu of
foreclosure; if any ground lease to which this Lease is subordinate is
terminated, Tenant shall attorn to the ground lessor. Xxxxxx agrees to
execute any documents required to effectuate such subordination or to
make this Lease prior to the lien of any mortgage, deed of trust or
ground lease, as the case may be, or to evidence such attornment.
[SEE ADDENDUM TO LEASE]
18. Attorneys' Fees. If, as a result of any breach or default in the
performance of any of the provisions of this Lease, Landlord uses the
services of any attorney in order to secure compliance with such
provisions or recovered damages therefor, or to terminate this Lease or
evict Tenant, Tenant shall reimburse Landlord for any and all
attorneys' fees and expenses in such amount as the court may adjudge
reasonable, provided that if Tenant shall be the prevailing party in
any legal action brought by Landlord against Tenant, Tenant will be
entitled to recover any and all attorneys' fees and expenses in such
amount as the court may adjudge reasonable.
19. Non-Discrimination. Tenant covenants for itself, its heirs, executors,
administrators, and assigns, and all persons claiming under or through
it, and this Lease is made and accepted upon it subject to the
condition that there shall be no discrimination against or segregation
of any person or group of persons, on account of race, color, creed,
religion, sex, marital status, national origin, or ancestry in the
leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment
of the premises herein leased nor shall the Tenant itself, or any
person claiming under or through it, establish or permit any such
practice or practices of discrimination or segregation with reference
to the selection, location, number, use, or occupancy of tenants,
subtenants, or vendees in the premises.
20. Notices. All notices, consents, demands, and other communications from
one party to the other given pursuant to the terms of this Lease shall
be in writing and shall be deemed to have been fully given when
deposited in the United States mail, certified or registered, postage
prepaid, and addressed as follows: to Tenant at the address specified
in the Basic Lease Information or to such other place as Tenant may
from time to time designate in a written notice to Landlord; or, to
Landlord at the address specified in the Basic Lease Information, or to
such other place and with such other copies as Landlord may from time
to time designate in a written notice to Tenant.
21. General Provisions
a. This Lease shall be governed by and construed in accordance
with the laws of the state of California.
b. The invalidity of any provision of this Lease, as determined
by a court of competent jurisdiction, shall in no way affect
the validity of any other provision hereof.
53
12
c. This Lease contains all agreements of the parties with respect
to any matter mentioned herein and only may be modified in
writing, signed by the parties.
d. No waiver by Landlord of any provision hereof shall be deemed
a waiver of any other provision or of any subsequent breach by
Tenant of the same or any other provision. Xxxxxxxx's consent
to or approval of any act shall not be deemed to render
unnecessary the obtaining of Landlord's consent to or approval
of any subsequent act by Xxxxxx. The acceptance of rent
hereunder by Landlord shall not be a waiver of any preceding
breach by Tenant of any provision hereof, other than the
failure of Tenant to pay the particular rent accepted,
regardless of Landlord's knowledge of such preceding breach at
the time of acceptance of such rent.
[SEE ADDENDUM TO LEASE]
e. If Tenant remains in possession of the premises or any part
thereof after the expiration of the term with the consent of
Landlord, such occupancy shall be a tenancy from month to
month at a rental in the amount of two times the last month's
rental during the term, plus all other charges payable
hereunder, and upon all of the terms hereof.
f. Subject to the provisions of this Lease restricting assignment
or subletting by Xxxxxx, this Lease shall bind the parties,
their personal representatives, successors, and assigns.
[SEE ADDENDUM TO LEASE]
g. Landlord and Landlord's agents shall have the right to enter
the premises at reasonable times for the purpose of inspecting
the same, showing the same to prospective purchasers, tenants,
lenders and other interested parties, and making such
alterations, repairs, improvements, or additions to the
premises or to the Building as Landlord may deem necessary or
desirable. Landlord may at any time during the last 120 days
of the term place on or about the premises any ordinary "For
Lease" sign.
h. Tenant shall not conduct any auction at the premises without
Landlord's prior consent.
i. The voluntary or other surrender of this Lease by Xxxxxx, the
mutual cancellation thereof or the termination of this Lease
by Landlord as a result of Tenant's default shall, at the
option of Landlord, terminate all or any existing subtenancies
or may, at the option of Landlord, operate as an assignment to
Landlord of any or all of such subtenancies.
[SEE ADDENDUM TO LEASE]
j. If Tenant is a corporation, each individual executing this
Lease on behalf of Tenant represents and warrants that he is
duly authorized to execute and deliver this Lease on behalf of
the corporation in accordance with a duly adopted resolution
of the Board of Directors and that this Lease is binding upon
the corporation in accordance with its terms.
k. The term "Landlord" as used herein means the then owner of the
Building and in the event of a sale of the Building the
selling owner shall be automatically relieved of all
obligations of Landlord hereunder, except for acts or
omissions of Landlord theretofore occurring.
l. The term "day" as used herein means a calendar day.
m. The obligations of Landlord under this Lease do not constitute
personal obligations of the partners, directors, officers,
shareholders, or trustees of Landlord, Tenant shall look
solely to Landlord and its assets for the realization of any
claims against Landlord and not to the assets of any of the
partners of Landlord, and Tenant expressly waives any and all
right to proceed against any of its partners or the officers,
directors, trustees, shareholders, agents, or employees of any
of such partners, except to the extent of their interest in
Landlord.
n. On request by Xxxxxxxx, Tenant shall furnish Landlord with
satisfactory evidence of payment of Xxxxxx's business personal
property taxes pertaining to the premises and deliver copies
of such business personal property tax bills to Landlord.
22. Exhibits. The exhibits and addendum, if any, specified in the Basic
Lease Information are attached to this Lease and by this reference made
a part hereof.
54
13
IN WITNESS WHEREOF, the parties have executed this Lease on the respective dates
indicated below.
TENANT: LANDLORD:
INSITE VISION INCORPORATED, ALAMEDA REAL ESTATE INVESTMENTS,
a Delaware corporation a California limited partnership
By: Vintage Alameda Investments, LP, a
California Limited partnership,
Operating General Partner
By: Vintage Properties - Alameda
Commercial, a California
corporation, Managing General
Partner
By: /s/ Xxxxxxx X. Xxxx By: /s/ Xxxxxx X. Xxxxxx
------------------------------- -------------------------------
Title: Vice President Title: President
---------------------------- -----------------------------
Date of Execution Date of Execution
by Tenant: 11 Sept. 1996 by Tenant: 9/20/96
------------------------ -------------------------
55
14
ADDENDUM
TO
MARINA VILLAGE OFFICE TECH LEASE
This Addendum to Marina Village Lease shall constitute part of
that certain Marina Village Office Tech Lease dated as of September 1, 1996 (the
"Lease") by and between ALAMEDA REAL ESTATE INVESTMENTS, a California limited
partnership ("Landlord"), and INSITE VISION INCORPORATED, a Delaware corporation
("Tenant"), for leased premises in 000 Xxxxxxxx Xxxxxx xxx 0000 Xxxxxxxxxx
Xxxxx, Xxxxxxx, Xxxxxxxxxx and the terms hereof shall for all purposes be
considered part of the Lease and supersede any provisions of the Lease to the
contrary.
1. Amendment of Paragraph 3. The last sentence of Paragraph 3(c) of the
Lease is hereby amended to read as follows:
Acceptance of such late charge by Landlord shall in no event constitute
a waiver of Tenant's default with respect to such overdue amount, nor
prevent Landlord from exercising any of the other rights and remedies
granted hereunder subject to Xxxxxx's right to cure as provided herein.
The first sentence of Paragraph 3(d) of the Lease is hereby amended to
read as follows:
(d) Any amount due to Landlord, if not paid when due, shall bear
interest from the date due until paid at the rate of 10% per annum,
provided interest shall not be payable on late charges incurred by
Tenant nor on any amounts upon which late charges are paid by Xxxxxx.
2. Amendment of Paragraph 4. The following language is hereby added to the
end of Paragraph 4(a) of the Lease is to read as follows:
Tenant's Share of Property Taxes and Operating Expenses shall not
include the following: (i) any state, local, federal, personal or
corporate income tax measured by the income of Landlord from all
sources or from sources other than rent alone; (ii) any estate or
inheritance taxes, any franchise, succession, or transfer taxes, or any
interest on taxes or any penalties resulting from Xxxxxxxx's failure to
pay taxes of any kind; (iii) taxes that are separately assessed by
government agencies to, and paid by, other tenants of the Building for
taxes attributable to tenant improvements or other alterations,
additions or improvements made by or for other tenants in the Building;
(iv) any increase in excess of a 12% increase in the total of Property
Taxes and Assessment Bonds (net of any tax increments received by
Landlord) which increase results from a sale of the Building; (v)
Landlord's general overhead expenses not related to the Building; (vi)
brokerage commissions, legal fees, advertising costs and other related
expenses incurred in connection with the leasing of the Building; (vii)
repairs, alterations, additions, improvements, or replacements made to
correct any defect in the design, materials or workmanship of the
Building or common areas or to comply with any requirements of any
governmental authority in effect as of the date of this Lease other
than as may be required pursuant to Tenant's specific use; (viii)
damage and repairs covered under any insurance policy carried by
Landlord in connection with the Building; (ix) damage and repairs to
the Building necessitated by the negligence or willful misconduct of
Landlord or Landlord's employees, contractors or agents; (x) structural
repairs or replacements or any improvements, alterations or
expenditures of a capital nature; (xi) damage and repairs attributable
to condemnation, fire or other casualty; (xii) damage and repairs
necessitated by the negligence or willful misconduct of Landlord or
Landlord's employees, contractors or agents; (xiii) executive salaries
of Landlord; (xiv) salaries of service personnel to the extent that
such service personnel perform services not solely in connection with
the management, operation, repair or maintenance of the Building or
common areas; (xv) Landlord's general overhead expenses not related to
the Building; (xvi) payments of principal or interest on any mortgage
or other encumbrance including ground lease payments and points,
commissions and legal fees associated with financing; (xvii)
depreciation; (xviii) legal fees, accountants' fees and other expenses
incurred in connection with disputes with Tenant or other tenants or
occupants of the Building or associated with the enforcement of any
leases or defense of Landlord's title to or interest in the Building or
any part thereof; (xiv) costs (including permit, license and inspection
fees) incurred in renovating or otherwise improving, decorating,
painting or altering space for other tenants in the building (xx) costs
incurred due to violation by Landlord or any other tenant in the
Building of the terms and conditions of any lease; (xxi) the cost of
any service provided to Tenant or other occupants of the Building for
which Xxxxxxxx is entitled to be reimbursed; (xxii) charitable or
political contributions; (xxiii) interest, penalties or other costs
arising out of Landlord's failure to make timely payments of its
obligations; (xxiv) property management fees of any property management
firm in excess of three percent (3%) of the gross revenues of the
Building; (xxv) costs incurred in advertising and promotional
activities for the Building; and (xxvi) any other expense which under
generally accepted accounting principles and practice would not be
considered a normal maintenance and operating expense.
56
15
In addition, any taxes, assessments, levies or fees against the
Building or underlying land shall be paid or amortized over the longest
permissible period of time and Tenant shall pay the appropriate annual
amount during such year, provided that Tenant shall not be required to
pay any such amounts not accruing during the term hereof. Landlord
shall not collect in excess of 100% of all Operating Expenses.
3. Amendment of Paragraph 6(a). The following sentence is added after the
second sentence of Paragraph 6(a) to read as follows:
Notwithstanding the foregoing, nothing herein shall be deemed to
require Tenant to make any alterations required by law to the premises
that are of a structural or capital nature unless such alterations are
required by Tenant's specific use of the premises (as opposed to
research and development uses generally) or required due to alterations
voluntarily made to the premises by or on behalf of Tenant.
4. Amendment of Paragraph 7. The following language is hereby added to the
end of Paragraph 7(b) of the Lease to read as follows:
Except in case of an emergency, Landlord shall give Tenant a minimum of
two days prior notice of any planned interruption of utilities
contemplated by Landlord.
5. Amendment of Paragraph 8. The following two sentences hereby replace
the first sentence of Paragraph 8(a) of the Lease to read as follows:
(a) Subject to the provisions of Paragraph 10 below, and except for
damage caused by Tenant or its agents or invitees, Landlord, at
Landlord's expense, shall keep in good condition and repair the
foundations, roof (excluding the cost of any additional roof
maintenance due to roof penetrations resulting from Tenant's specific
use, e.g. laboratory facilities in comparison to general office use,
which shall be Tenant's responsibility), exterior walls of the Building
and all common areas within the Building not leased to tenants. Subject
to the provisions of Paragraph 10 below, Landlord shall keep in good
condition and repair the landscaping, walks and parking areas
associated with the Building and any costs resulting therefrom shall be
reimbursed to Landlord by Tenant in accordance with Paragraph 4(c) of
the Lease.
The second sentence of Paragraph 8(b) of the Lease is hereby amended to
read as follows:
If Tenant fails to do so, within any applicable notice and cure period,
Landlord may, but shall not be required to, enter the premises and put
them in good condition, and Landlord's costs thereof shall
automatically become due and payable as additional rent.
The fifth sentence of Paragraph 8(b) of the Lease is hereby deleted in
its entirety.
The last sentence of Paragraph 8(b) of the Lease is hereby amended to
read as follows:
At the expiration of the term, Tenant shall deliver up possession of
the premises in good condition and repair, excepting only ordinary wear
and tear and damage caused by anyone or anything other than Tenant or
Tenant's employees, agents or invitees.
The first sentence in Paragraph 8(c) of the Lease is hereby amended to
read as follows:
As a condition giving such consent and at the time of the request,
Landlord shall inform Tenant whether it is required to remove any such
alterations, improvements or additions at the expiration of the term,
and restore the premises to their prior condition.
The following sentence is hereby added after the final sentence in
Paragraph 8(c) of the Lease to read as follows:
Notwithstanding the foregoing, Tenant shall have the right, without
need for the written consent of (but with prior written notice to)
Landlord, to make non-structural alterations to the premises that do
not affect the Building systems and cost less than Twenty-Five Thousand
Dollars ($25,000) to install, provided such alterations are otherwise
made in compliance with the terms of this Paragraph 8(c).
The last sentence of Paragraph 8(c) of the Lease is hereby amended to
read as follows:
57
16
Unless Landlord requires their removal, as set forth above, all
alterations, improvements or additions that may be made on the premises
shall become property of Landlord and remain upon and be surrendered
with the premises at the expiration of the term; provided, however,
that Tenant shall remove all machinery, equipment and trade fixtures
installed by it and repair any and all damage to the premises and any
machinery, equipment or trade fixtures remaining on the premises shall,
at Landlord's option, become the property of the Landlord.
6. Amendment of Paragraph 9. The third sentence of Paragraph 9(a) of the
Lease is hereby amended to read as follows:
If, in the reasonable opinion of Xxxxxxxx's insurance advisor, based on
a substantial increase in recovered liability claims generally, the
specified amounts of coverage are no longer adequate, such coverage
shall be appropriately increased.
The last sentence of Paragraph 9(a) of the Lease is hereby amended to
read as follows:
If Tenant fails to obtain such insurance or to furnish Landlord any
such duplicate policy or certificate as herein required, Landlord may,
at its election and after 10 days' notice to Tenant, procure and
maintain such coverage and Tenant shall reimburse Landlord on demand as
additional rent for any premium so paid by Landlord.
The first sentence of Paragraph 9(c) of the Lease is hereby amended to
read as follows:
As this Lease does not involve the public interest and insurance is
available to Tenant which will protect it against such claims, damage,
injury or death, Tenant hereby waives all claims against Landlord for
damage to any property or injury to or death of any person in, or upon
or about the premises or the Building arising at any time and from any
cause (except such as arise from the negligence or willful misconduct
of Landlord, its agents, employees or contractors, and except as caused
by a breach of Landlord's obligations hereunder).
The following language is hereby added as new Paragraph 9(d) to read as
follows:
Landlord shall not be liable for any injury or damage which may be
sustained to the person, equipment or property of Tenant, its
employees, invitees or customers, caused by or resulting from fire,
steam, electricity, gas, water or rain, which may leak or flow from or
into any part of the premises, or from the breakage, leakage,
obstruction or other defects of the pipes, sprinklers, wires,
appliance, plumbing, air conditioning or lighting fixtures located
therein, whether the damage or injury results from conditions arising
upon the premises or upon other portions of the Building, or from other
sources.
7. Amendment of Paragraph 10. Paragraph 10(a) of the Lease is hereby
amended to read as follows:
(a) If during the term the premises are totally or partially destroyed,
or any other portion of the Building is damaged in such a way that
Tenant's use of the premises is materially interfered with, from a risk
that is wholly covered by insurance the proceeds of which are made
available to Landlord, Landlord shall proceed with reasonable diligence
to repair the damage or destruction and this Lease shall not be
terminated; provided, however, that if in the opinion of Landlord's
architect, the work of repair cannot be completed in 180 days, or if
the damage occurs within the last 2 years of the term and the repair
work cannot be completed within 90 days, either Landlord or Tenant may
elect to terminate the Lease by notice given to the other party.
The following language is hereby added to the end of Paragraph 10(b) of
the Lease to read as follows:
Landlord must give Tenant notice as to whether or not Landlord will
restore the premises within 30 days of the occurrence of such damage or
destruction. If Landlord elects not to restore the premises, Tenant may
elect to terminate the Lease by notice given to Landlord within 10 days
of receiving Landlord's notice. Notwithstanding the foregoing, if in
the opinion of Xxxxxxxx's architect the work of repair cannot be
completed in 180 days, or if the damage occurs within the last two
years of the Lease term and the repair work cannot be completed within
90 days, either Landlord or Tenant may elect to terminate the Lease by
notice given to the other party.
8. Amendment of Paragraph 11. The last sentence of Paragraph 11 of the
Lease is hereby amended to read as follows:
In the event of a partial taking of the premises that does not result
in a termination of this Lease, the monthly rental thereafter to be
paid and Tenant's Percentage Share shall be equitably reduced on a
square footage basis.
9. Amendment of Paragraph 12. Subparagraph 12(b)(3) of the Lease is hereby
amended to read as follows:
58
17
3. if, in Landlord's reasonable judgment, the financial worth of the
proposed assignee or sublessee is insufficient to fulfill such entity's
obligations under the assignment or sublease, as applicable, or the
character, reputation or business of the proposed assignee or sublessee
is not consistent with the quality of the other tenancies in the
Building or Project; provided, however, for one year following Xxxxxx's
request, Landlord shall not enter into a lease with any proposed
assignee or sublessee which it rejects under this subparagraph 12(b)(3)
unless such lease is for a lesser amount of square footage than the
proposed assignee or sublessee would have leased from Tenant under the
proposed assignment or subletting.
Subparagraph 12(b)(4) of the Lease is hereby amended to read as
follows:
4. in the case of a subletting of less than the entire premises, if the
subletting would result in the division of the premises into a
configuration that is not suitable for normal leasing purposes, or
would require access to be provided through space leased or held for
lease to another tenant or improvements to be made outside of the
premises; or
Subparagraph 12(d)(1) of the Lease is hereby deleted in its entirety.
The first sentence of Paragraph 12(f) of the Lease is hereby amended to
read as follows:
In the case of an assignment, one half of all sums or other economic
consideration received by Xxxxxx as a result of such assignment shall
be paid to Landlord after first deducting the unamortized cost of
leasehold improvements paid for by Tenant and the cost of any real
estate commissions, legal fees, advertising costs, tenant improvements
specifically made for assignee and all other reasonable costs incurred
with such assignment.
Paragraph 12(g) of the Lease is hereby amended to read as follows:
(g) In case of a subletting, one half of all sums or economic
consideration received by Tenant as a result of such subletting shall
be paid to landlord after first deducting (i) the rental due hereunder,
prorated to reflect only rental allocable to the sublet portion of the
premises, (ii) the cost of leasehold improvements made to the sublet
portion of the premises at Tenant's cost, amortized over the term of
this Lease except for leasehold improvements made for the specific
benefit of sublessee, which shall be amortized over the term of the
sublease, and (iii) the cost of any real estate commissions incurred in
connection with such subletting, and legal fees, advertising costs, and
all other reasonable costs incurred in the assignment.
A new subparagraph (j) is hereby added to the end of Paragraph 12 of
the Lease, to read as follows:
(j) Notwithstanding the foregoing, Tenant may assign the Lease or
sublet any portion thereof, without Landlord's consent, to: (1) any
corporation that controls, is controlled by, or is under common control
with Tenant, (2) any corporation resulting from the merger or the
consolidation of Tenant, or (3) any person or entity who acquires all
of the assets of Tenant as a going concern of the business that is
being conducted upon the premises, provided that the transferee assumes
all of the obligations of Tenant under the Lease.
10. Amendment of Paragraph 13. Subparagraph 13(a)(1) of the Lease is hereby
amended to read as follows:
(1) a default by Xxxxxx in the payment of any rent or other sum payable
hereunder for a period of 10 days after written notice from Landlord
that the same is due, provided that if Tenant has failed three or more
times in any twelve-month period to pay any rent or other sum within 10
days after the due date, no written notice shall thereafter be
applicable hereunder;
Paragraph 13(a)(2) of the Lease is hereby amended to read as follows:
(2) a material default by Tenant in the performance of any of the other
terms, covenants, agreements or conditions contained herein and, if the
default is curable, the continuation of such default for a period of 30
days after notice by Landlord or beyond the time reasonably necessary
for cure if the default is of the nature to require more than 30 days
to remedy, provided that if Tenant has defaulted in the performance of
the same obligation three or more times in any twelve-month period and
notice of such default has been given by Landlord in each instance, no
cure period shall thereafter be applicable hereunder;
11. Amendment of Paragraph 14. The following phrase is hereby added to the
end of Paragraph 14 of the Lease, to read as follows:
59
18
; provided further that, if Xxxxxxxx's default materially interferes
with Xxxxxx's use and enjoyment of the premises, Landlord shall
commence performance within 5 days after receipt of notice from Tenant
specifying the precise nature of Landlord's default and the manner in
which it interferes with Xxxxxx's use of the premises, and diligently
prosecute the same to completion.
12. Amendment of Paragraph 16. Paragraph 16(b) of the Lease is hereby
amended to read as follows:
(b) Tenant's failure to deliver such statement within such time shall
be conclusive upon Tenant, (i) that this Lease is in full force and
effect, without modification except as may be represented by Landlord,
(ii) that to the best of Tenant's knowledge there are no uncured
defaults in Landlord's performance, and (iii) that not more than one
month's rent has been paid in advance.
13. Amendment of Paragraph 18. Paragraph 18 of the Lease is hereby amended
to read as follows:
18. Attorneys' Fees. In any action or proceeding which Landlord or
Xxxxxx brings to enforce its respective rights hereunder or to enforce
any judgment granted in connection therewith, the unsuccessful party
shall pay all costs incurred by the prevailing party (whether or not
the action or proceeding is pursued to judgment), including reasonable
attorneys' fees fixed by the court, and said costs and reasonable
attorneys' fees fixed by the court, and said costs and reasonable
attorneys' fees fixed by the court, and costs and attorneys' fees shall
be a part of the judgment in said action.
14. Amendment of Paragraph 21. Paragraph 21(e) of the Lease is hereby
amended to read as follows:
(e) If Tenant remains in possession of the premises or any part thereof
after the expiration of the term with the consent of Landlord, such
occupancy shall be a tenancy from month to month at a rental in the
amount of the last month's rental during the term plus all other
charges payable hereunder, and upon all of the terms hereof.
The following language is hereby added to the end of Paragraph 21(g) of
the Lease to read as follows:
Notwithstanding anything contained herein to the contrary, Landlord
shall not enter, and shall prevent its employees, agents and invitees
from entering, those laboratory areas designated by Tenant from time to
time as needing to be kept sterile or isolated, except in the case of
an emergency or with the Tenant's specific consent, which consent shall
be granted on not more than two days' notice.
The following language is hereby added to the end of Paragraph 21(j) of
the Lease to read as follows:
Each individual executing this Lease on behalf of Landlord represents
and warrants that he is duly authorized to execute and deliver this
Lease on behalf of Landlord and that this Lease is binding on Landlord
in accordance with its terms.
15. Renewal Rent Below Market. Landlord and Tenant acknowledge and agree
that the Base Rent as set forth in this Lease reflects a below market
rental rate as a result of Tenant exercising an option to extend the
term of its previous lease on the premises, which option included
previously negotiated terms and conditions.
IN WITNESS WHEREOF, Landlord and Xxxxxx have executed this Addendum to Marina
Village Office Tech Lease as of the date of the Lease.
TENANT: LANDLORD:
INSITE VISION INCORPORATED, ALAMEDA REAL ESTATE INVESTMENTS,
a Delaware corporation a California limited partnership
By: Vintage Alameda Investments, LP, a
California Limited partnership,
Operating General Partner
By: Vintage Properties - Alameda
Commercial, a California corporation,
Managing General Partner
By: /s/ Xxxxxxx X. Xxxx By: /s/ Xxxxxx X. Xxxxxx
---------------------------- ----------------------------
Title: Vice President Title: President
------------------------- -------------------------
60
19
EXHIBIT A Page 1 of 2
Outline of Leased Premises
965 Atlantic
[architectural rendering]
BUILDING TOTAL
GROSS AREA: 23,910 S.F.
CORE NON-RENTABLE: 0 S.F.
CORE RENTABLE: 96 S.F.
CORRIDORS: 0 S.F.
USEABLE: 23,814 S.F.
RENTABLE: 23,910 S.F.
LOAD FACTOR: 1.004
CORE-RENTABLE MARINA VILLAGE
CORE-NONRENTABLE 000 XXXXXXXX XXXXXX
CORRIDORS OFFICE TECH G
XXXXX/
NETTLE
61
20
EXHIBIT A Page 2 of 2
Outline of Leased Premises
2020 Challenger
[architectural rendering]
BUILDING TOTAL
GROSS AREA: 20,254 S.F.
CORE NON-RENTABLE: 0 S.F.
CORE RENTABLE: 94 S.F.
CORRIDORS: 0 S.F.
USEABLE: 20,160 S.F.
RENTABLE: 20,254 S.F.
LOAD FACTOR: 1.0046
CORE-RENTABLE MARINA VILLAGE
CORE-NONRENTABLE 2020 CHALLENGER DRIVE
CORRIDORS OFFICE TECH BLDG. X.
XXXXX/
NETTLE
62
