Exhibit 10.30
THIRD AMENDMENT TO TEN-YEAR INDUSTRIAL NET LEASE AGREEMENT
(Building No 8)
This Third Amendment to Office Lease ("Amendment") is entered into,
and dated for reference purposes, as of June 9, 1998 by and between
METROPOLITAN LIFE INSURANCE COMPANY, a New York corporation (herein referred
to as "Metropolitan" or "Landlord"), as Landlord, and CYGNUS, INC., a
Delaware corporation (herein referred to as "Cygnus" or "Tenant"), with
reference to the following facts:
RECITALS
A. Metropolitan's predecessor in interest as Landlord (Seaport
Centre Venture Phase I, a California general partnership, herein, the
"Venture") and Tenant's predecessor in interest as Tenant (Cygnus Research
Corporation, a California corporation) entered into that certain written
Lease dated September 27, 1988 (the "Original Lease"), for certain premises
of approximately 20,880 square feet of space in Building 8 of Phase I
("Building 8 Space"), whose current street address remains ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, all as more particularly described in the
Original Lease, which Original Lease included Rider No. 1 To Seaport Centre
Standard Lease and Exhibits A, A-1, B & C.
B. The Venture and Tenant's predecessor in interest as Tenant at
the time (then, Cygnus Therapeutic Systems, a California corporation) entered
into that certain written First Amendment To Ten-Year Industrial Net Lease
Agreement dated May 15, 1992 (the "First Amendment") for certain space in
Building 5 of Phase I ("Building 5 Space"), and that certain written Second
Amendment To Ten-Year Industrial Net Lease Agreement dated August 8, 1992
(the "Second Amendment") for certain space of approximately 11,158 square
feet in Building 3 of Phase I ("Building 3 Space"), whose current street
address remains ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇.
C. The Original Lease, as amended, is referred to herein as the
Lease.
D. Met acquired and holds the interest of Landlord under the
Lease.
E. Landlord and Tenant now desire to provide for extension of the
term of the Lease of the entire Premises and other amendments of the Lease,
all as more particularly provided herein.
NOW, THEREFORE, in consideration of the foregoing, and of the mutual
covenants set forth herein and of other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1. DEFINED TERMS; PREMISES. All capitalized terms not
otherwise defined in this Amendment have the meanings set forth in the Lease
unless the context clearly requires otherwise. The term "Landlord" as used
herein shall have the same meaning as and may be used interchangeably with
the term "Lessor" in the Lease, and the term "Tenant" as used herein shall
have the same meaning as and may be used interchangeably with the term
"Lessee" in the Lease. As used herein, the term "Premises" shall mean the
Building 8 Space and Building 3 Space. The Building 5 Space is not included
in the Premises and the term of Tenant's lease of the Building 5 Space
previously expired and Tenant is no longer leasing or occupying any of the
Building 5 Space. Accordingly, Paragraph 8 of the Second Amendment is hereby
amended to delete the reference to Building 5 and hereafter to provide in its
entirety that the term "building" as used in Paragraphs 24 and 25 of the
Original Lease shall apply to either Building 8 or Building 3 as the
circumstances require, provided that the rights of the parties to terminate
this Lease set forth in said paragraphs shall be limited to the portion of
the Premises within the building affected by any such casualty or
condemnation.
SECTION 2. TENANT'S INTEREST UNDER THE LEASE. Tenant represents
and warrants and agrees that: (i) Tenant occupies the Premises and is the
Tenant under the Lease; (ii) Tenant is the successor in
interest to Cygnus Research Corporation, a California corporation, and Cygnus
Therapeutic Systems, a California corporation, and as such is the assignee of
the interest of Tenant under the Lease, has assumed, or hereby assumes, the
obligations of Tenant under the Lease, and holds all right, title and
interest of Tenant under the Lease; (iii) has not entered into any assignment
of the Lease, and no sublease or other agreement for use or occupancy of the
Premises or any part thereof is in effect. Tenant's obligations with respect
to the representations, warranties and agreements under this Section survive
the expiration or sooner termination of the Term of the Lease and of this
Lease.
SECTION 3. EXTENSION OF TERM. Landlord and Tenant acknowledge and
agree that notwithstanding any provision of the Lease to the contrary, the
Term of this Lease expires on December 10, 1998, and that the Term is hereby
extended for the "Extended Term" commencing on December 11, 1998 (the
"Extended Term Commencement Date") and expiring on December 10, 2003, unless
sooner terminated pursuant to the terms of the Lease. This extension is with
respect to the entire Premises. This extension is further upon and subject
to the same conditions, terms, covenants and agreements contained in the
Lease except as otherwise provided in this Amendment. Landlord and Tenant
acknowledge and agree that this Amendment provides all rights and obligations
of the parties with respect to extension of the Term, whether or not in
accordance with any other provisions, if any, of the Lease regarding renewal
or extension, and without limiting the generality of the foregoing, Tenant
and Landlord acknowledge and agree that the Option to Renew Lease Term set
forth in Paragraph 2(c) of the Original Lease is null, void and of no force
or effect, and that any extension beyond the Extended Term is governed by the
Option to Extend set forth in Section 13 below.
SECTION 4. PREMISES LEASED "AS-IS"; CONSTRUCTION
(a) AS-IS. Notwithstanding any provision of the
Lease to the contrary, Tenant acknowledges and agrees that (i) Tenant
occupies the Premises and has investigated their condition to the extent
Tenant desires to do so; (ii) Tenant hereby agrees that this Lease is of the
Premises in its "AS IS" condition; (iii) no representation regarding the
condition of the Premises or Building 8 or Building 3 has been made by or on
behalf of Landlord; and (iv) Landlord has no obligation to remodel or to make
any repairs (except as otherwise provided for in the Lease), alterations or
improvements to the Premises or such buildings in connection with this
Amendment or provide Tenant any allowance for any work by Tenant except to
the extent of Landlord's Maximum Contribution, as provided below.
(b) TENANT WORK GENERALLY. Landlord and Tenant
acknowledge and agree that notwithstanding any provisions of the Lease to the
contrary: (i) Tenant may desire to do certain repainting, recarpeting,
remodeling, repair, improvement or alteration in connection with this
Amendment, which for purposes of this Lease is referred to as the Tenant
Work; (ii) all Tenant Work, if any, shall be done as alterations, additions
or improvements of the Premises or any part thereof within the meaning of
Paragraph 11 of the Lease ("Tenant Alterations"), subject to and in
compliance with all conditions and provisions of the Lease applicable to
Tenant Alterations, except as otherwise expressly provided herein; (iii) if
the aggregate cost of the Tenant Work does not exceed the amount of
Landlord's Maximum Contribution (defined below), Tenant shall not be required
to obtain a completion and lien indemnity bond for it; and (iv) such work,
including all design, plan review, obtaining all approvals and permits, and
construction shall be at Tenant's sole cost and expense, except to the extent
reimbursable out of Landlord's Maximum Contribution as provided below.
(c) LANDLORD'S MAXIMUM CONTRIBUTION. Landlord's
Maximum Contribution shall mean an amount up to a maximum of Ninety-six
Thousand One Hundred and Fourteen Dollars ($96,114.00) to reimburse Tenant
for the actual costs of design, plan review, obtaining all approvals and
permits, and construction of such Alterations (i) for the Premises, and/or
(ii) for Alterations to Tenant's "Building 2 Space", at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, as defined and provided in that certain amendment
of that certain Related Lease (as defined in the Original Lease) being
executed concurrently herewith ("Related Amendment"), except for the
additional amount of Landlord's Maximum Contribution provided in the Related
Amendment. In no event shall the Landlord's Maximum Contribution be used to
reimburse any costs of
designing, procuring or installing in the Premises any trade fixtures,
movable equipment, furniture, furnishings, telephone equipment, cabling for
any of the foregoing, or other personal property (collectively "Personal
Property" for purposes of this Rider) to be used in the Premises by Tenant,
and the cost of such Personal Property shall be paid by Tenant. Landlord's
Maximum Contribution pursuant to this Amendment and that payable under the
Related Amendment shall together be payable by Landlord to Tenant no more
often than three times and no more often than one application every thirty
(30) days, and otherwise follows: (a) for costs based upon the percentage of
work completed prior to the date of application; and (b) in each case, any
amount so payable shall be paid within 30 days after Landlord's receipt of
Tenant's complete application for payment, which application shall include
reasonable substantiation of costs incurred by Tenant, conditional lien
releases to the extent of work completed, and full, final and unconditional
lien releases upon completion of all Alterations (or, if the work is done
under separate contracts or in smaller separate identifiable segments or
phases, then upon completion of and with respect to each separate contract or
phase). Tenant shall keep full and correct accounts and shall exercise such
control as may be necessary or appropriate for the proper financial
management of the construction of the Alterations separately identified as to
each of the Premises and the Building 2 Space and, if the work is done under
separate contracts or in smaller separate identifiable segments or phases,
then with respect to each separate contract or phase. Provided further,
Tenant must prior to October 1, 1999 submit all written applications with the
items required above for disbursement or reimbursement for any reimbursable
costs out of the Landlord's Maximum Contribution, and to the extent of any
funds for which application has not been made prior to that date or if and to
the extent that the reimbursable costs of the Tenant Work are less than the
amount of Landlord's Maximum Contribution, then Landlord shall retain the
unapplied or unused balance of the Landlord's Maximum Contribution and shall
have no obligation or liability to Tenant with respect to such excess.
SECTION 5. MONTHLY BASE RENT FOR EXTENDED TERM COMMENCING UPON
EXTENDED TERM COMMENCEMENT DATE. Notwithstanding any provision of the Lease
to the contrary, the amount of monthly base rent due and payable by Tenant
for the Premises, accruing on and after the Extended Term Commencement Date
and monthly thereafter for the Extended Term shall be as follows:
Period from/through Monthly Total Monthly Rate/Square Foot
12/11/1998 - 12/10/1999 $70,483.60 $2.20
12/11/1999 - 12/10/2000 $72,726.26 $2.27
12/11/2000 - 12/10/2001 $74,648.54 $2.33
12/11/2001 - 12/10/2002 $77,024.69 $2.40
12/11/2002 - 12/10/2003 $79,320.75 $2.48
SECTION 6. TENANT'S SHARE OF OPERATING EXPENSES. Landlord and
Tenant desire to set forth with greater particularity the components of
operating expenses pursuant to Paragraph 7 of the Original Lease, as amended
by Paragraph 6(b) of the Second Amendment, and Tenant's proportionate share
of such operating expenses allocated to each building in which the Premises
is located, to Phase I and to the Project (defined below). Notwithstanding
any provision of the Lease to the contrary, during the Extended Term in
addition to the base rent payable by Tenant, Tenant shall pay Tenant's
proportionate share of all operating expenses as set forth below. Operating
expenses and exclusions therefrom are as defined in the Original Lease,
except as otherwise provided below. Operating Expenses are not limited by
references to the building in Paragraph 7 of the Original Lease or by
reference to Phase I in Paragraph 6(b) of the Second Amendment, but are
determined with respect to and as allocable to each building in which the
Premises is located, to Phase I and to the Project, and Tenant shall pay its
proportionate share of such operating expenses, as follows:
(i) Tenant's proportionate share of Building Operating
Expenses (defined below) of and attributable to Building 8 as of the
date hereof equals eighty-seven percent (87%);
(ii) Tenant's proportionate share of Building Operating
Expenses (defined below) of and attributable to Building 3 as of the
date hereof equals twenty-nine percent (29%);
(iii) Tenant's proportionate share of Project Operating
Expenses (defined below) is the percentage obtained by dividing the
aggregate rentable square footage of the Premises located in the Project
(defined below) by the total rentable square footage of the Project, and
as of the date hereof equals five and 961/1000 percent (5.961%);
(iv) Tenant's proportionate share of Phase Operating Expenses
(defined below) of and attributable to Phase I, in which both Building 8
and Building 3 are located, is the percentage obtained by dividing the
aggregate rentable square footage of the Premises located in Phase I by
the total rentable square footage of Phase I, and as of the date hereof
equals eleven percent (11%);
(v) operating expenses of and attributable to each building
in which the Premises or part thereof is located includes all operating
expenses that are directly and separately identifiable to the operation,
maintenance or repair of such building and may also be referred to as
"Building Operating Expenses" for each such building. Tenant's
proportionate share of Building Operating Expenses is the percentage
obtained by dividing the rentable square footage of the Premises located
in each building by the total rentable square footage of such building;
(vi) operating expenses of and attributable to the Project
("Project Operating Expenses") includes all operating expenses with
respect to the Project (defined below) that are not included as Phase
Operating Expenses (defined below) and that are not either Building
Operating Expenses or operating expenses directly and separately
identifiable to the operation, maintenance or repair of any other
leasable building located in the Project, but Project Operating Expenses
includes operating expenses allocable to any areas of a building during
such time as such areas are made available by Landlord for the general
common use or benefit of the tenants of the Project, and their employees
and invitees, or the public, as such areas currently exist and as they
may be changed from time to time. As of the date hereof, "Project"
means and consists of Phase I and Phase II of the development commonly
known as Seaport Centre in Redwood City, California, and any expenses
allocable to either pursuant to any covenants, conditions and
restrictions, or any reciprocal easements, or any owner's association
now or hereafter affecting them. In the event any building is added to
or deleted from Tenant's Phase or any Phase is added to or deleted from
the Project which affects tenant's proportionate share of either or
both, Landlord shall recalculate tenant's proportionate share as
applicable;
(vii) operating expenses of a Phase ("Phase Operating
Expenses") may include operating expenses that are directly and
separately identifiable to the operation, maintenance or repair of each
leasable building located in that Phase (including but not limited to
Building Operating Expenses) and may include Project Operating Expenses
that are separately identifiable to a Phase; and
(viii) Landlord shall have the right to allocate a particular
operating expense as Building Operating Expenses, Project Operating
Expenses or Phase Operating Expenses; however, in no event shall any
portion of Building Operating Expenses, Project Operating Expenses or
Phase Operating Expenses be assessed or counted against Tenant more than
once.
SECTION 7. UTILITIES. Landlord and Tenant desire to set forth
with greater particularity the allocation of utilities expenses pursuant to
Paragraph 8 of the Original Lease, as amended by Paragraph 6(c) of the Second
Amendment, and Tenant's proportionate share of such operating expenses
allocated to each building in which the Premises is located, to Phase I and
to the Project. Notwithstanding any provision of the Lease to the contrary,
excluding all utilities separately billed or metered to Tenant which shall be
paid for solely and separately by Tenant, and except as provided in Paragraph
4 of the Second Amendment regarding Building 3 utilities, during the Extended
Term in addition to the base rent and operating expenses
payable by Tenant, Tenant shall pay Tenant's proportionate share of all
utilities expenses as allocated and paid in the same proportionate share as
set forth in Section 6 of this Amendment regarding operating expenses.
SECTION 8. SECURITY DEPOSIT. Landlord and Tenant acknowledge and
agree that Landlord holds a Security Deposit in the amount of Thirty Thousand
Five Hundred and Sixty-two Dollars ($30,562.00) and that Landlord shall
continue to hold the Security Deposit pursuant to the provisions of Paragraph
6 of the Original Lease, as amended by Paragraph 6(a) of the Second Amendment.
SECTION 9. PARKING. Landlord and Tenant acknowledge and agree
that during the Extended Term the aggregate number of parking spaces provided
for Tenant's use pursuant to Paragraph 30 of the Original Lease, as amended
by Paragraph 6(d) of the Second Amendment shall be one hundred and one (101)
undesignated parking spaces.
SECTION 10. REMOVAL OF TENANT ALTERATIONS. Upon the expiration or
earlier termination of the Term of the Lease, including the Extended Term
provided for in this Amendment, Tenant shall not be required to remove any of
the alterations, additions or improvements to or of the Premises or any part
thereof by Tenant for Tenant's initial occupancy under the Original Lease or
made thereafter and still existing as of the date of this Amendment, provided
that such alterations, additions or improvements were made in accordance with
the applicable provisions of the Original Lease, as amended. Landlord and
Tenant acknowledge and agree that hereafter, all alterations, additions or
improvements of the Premises or any part thereof within the meaning of
Paragraph 11 of the Lease ("Tenant Alterations", as used in Section 4(b) of
this Amendment), including Tenant Work, if any, as used in Section 4(b) of
this Amendment, shall be subject to and in compliance with all conditions and
provisions of the Lease applicable to Tenant Alterations, including the
procedure set forth in the third paragraph of Paragraph 11 of the Original
Lease to identify those Tenant Alterations which Tenant desires to remove at
the end of the Lease term and those which Landlord will require Tenant to
remove.
SECTION 11. BOOKS AND RECORDS. Supplementing the second sentence
of the third paragraph of Paragraph 7 of the Original Lease, as amended, the
Tenant or its representative (which representative shall be a certified
public accountant licensed to do business in the state in which the Property
is located and whose primary business is certified public accounting) shall
have the right, for a period of ninety (90) days following the date upon
which Landlord furnishes Tenant with Landlord's statement accounting for
actual costs of operating expenses (herein, "Landlord's Statement") is
delivered to Tenant, to examine the Landlord's books and records with respect
to the items in the foregoing statement of Operating Expenses during normal
business hours, upon written notice, delivered at least three (3) business
days in advance. If Tenant does not object in writing to Landlord's Statement
within one hundred and twenty (120) days of Tenant's receipt thereof,
specifying the nature of the item in dispute and the reasons therefor, then
Landlord's Statement shall be considered final and accepted by Tenant. Any
amount due to the Landlord as shown on Landlord's Statement, whether or not
disputed by Tenant as provided herein, shall be paid by Tenant when due
within thirty (30) days after delivery of Landlord's Statement, as provided
in Paragraph 7 of the Original Lease, as amended, but such payment is without
prejudice to any written exception Tenant may make pursuant to this Section.
SECTION 12. PARAGRAPH 39 OF THE ORIGINAL LEASE. Notwithstanding
any provision of the Lease to the contrary, Paragraph 39 of the Original
Lease is of no force or effect and is hereby deleted from the Lease.
SECTION 13. OPTION TO EXTEND.
(a) Landlord hereby grants Tenant a single option to extend the
Extended Term of the Lease for an additional period of five (5) years (such
period may be referred to as the "Option Term"), as to the entire Premises as
it may then exist, upon and subject to the terms and conditions of this
Section (the "Option To Extend"), and provided that at the time of exercise
of such right: (i) Tenant must be in
occupancy of the entire Premises; and (ii) there has been no material adverse
change in Tenant's financial position from such position as of the date of
execution of the Lease, as certified by Tenant's independent certified public
accountants, and as supported by Tenant's certified financial statements,
copies of which shall be delivered to Landlord with Tenant's written notice
exercising its right hereunder.
(b) Tenant's election (the "Election Notice") to exercise the
Option To Extend must be given to Landlord in writing no earlier than the
date which is two hundred and seventy (270) days before the Expiration Date
and no later than the date which is two hundred and forty (240) days prior to
the Expiration Date. If Tenant either fails or elects not to exercise its
Option to Extend by not timely giving its Election Notice, then the Option to
Extend shall be null and void.
(c) The Option Term shall commence immediately after the
expiration of the Extended Term of the Lease. Tenant's leasing of the
Premises during the Option Term shall be upon and subject to the same terms
and conditions contained in the Lease except that (i) the monthly base rent,
plus payment of Tenant's proportionate share of Operating Expenses and
Utilities charges pursuant to the Lease (in addition to all expenses paid
directly by Tenant to the utility or service provider, which direct payments
shall continue to be Tenant's obligation) shall be amended to equal the
"Option Term Rent", defined and determined in the manner set forth in the
immediately following Subsection; (ii) the Security Deposit provisions shall
remain as provided in the Lease; (iii) Tenant shall accept the Premises in
its "AS-IS" condition without any obligation of Landlord to repaint, remodel,
repair (except as otherwise provided for in the Lease), improve or alter the
Premises or to provide Tenant any allowance therefor; and (iv) there shall be
no further option or right to extend the term of the Lease. If Tenant timely
and properly exercises the Option To Extend, references in the Lease to the
Term shall be deemed to mean the Extended Term as extended by the Option Term
unless the context clearly requires otherwise.
(d) The Option Term Rent shall mean the greater of (i) the monthly
base rent payable by Tenant under this Lease calculated at the rate
applicable for the last full month of the Extended Term, plus payment of
Tenant's proportionate share of Operating Expenses and Utilities charges
pursuant to the Lease (in addition to all expenses paid directly by Tenant to
the utility or service provider, which direct payments shall continue to be
Tenant's obligation) (collectively, "Preceding Rent") or (ii) the "Prevailing
Market Rent". As used herein Prevailing Market Rent shall mean the rent and
all other monetary payments, escalations and triple net payables by Tenant,
including consumer price increases, that Landlord could obtain from a third
party desiring to lease the Premises for a term equal to the Option Term and
commencing when the Option Term is to commence under market leasing
conditions, and taking into account the following: the size, location and
floor levels of the Premises; the type and quality of tenant improvements;
age and location of the Project; quality of construction of the Project;
services to be provided by Landlord or by tenant; the rent, all other
monetary payments and escalations obtainable for new leases of space
comparable to the Premises in the Project and in comparable buildings in the
mid-Peninsula area, and other factors that would be relevant to such a third
party in determining what such party would be willing to pay therefor. The
determination of Prevailing Market Rent based upon the foregoing criteria
shall be made by Landlord, in the good faith exercise of Landlord's business
judgment. Within thirty (30) days after Tenant's exercise of the Option To
Extend, Landlord shall notify Tenant of Landlord's determination of Option
Term Rent for the Premises. If Landlord's determination of Prevailing Market
Rent is greater than the Preceding Rent, and if Tenant, in Tenant's sole
discretion, disagrees with the amount of Prevailing Market Rent determined by
Landlord, Tenant may elect to revoke and rescind the exercise of the option
by giving written notice thereof to Landlord within forty-five (45) days
after notice of Landlord's determination of Prevailing Market Rent.
(e) This Option to Extend is personal to Cygnus and to any
assignee of the Lease which is an Affiliate (defined below) and may not be
used by, and shall not be transferable or assignable (voluntarily or
involuntarily) to any other person or entity. For purposes of this Section,
"Affiliate" means (i) any subsidiary, affiliate or division controlled by
Tenant; (ii) a successor corporation related to Tenant through merger,
consolidation or non-bankruptcy reorganization; or (iii) a purchaser of
substantially all of
Tenant's assets, in each case of (i), (ii) and (iii) which also must satisfy
the requirements described in the paragraph immediately following Paragraph
15(d) of the Lease.
(f) Upon the occurrence of any of the following events, Landlord
shall have the option, exercisable at any time prior to commencement of the
Option Term, to terminate all of the provisions of this Section with respect
to the Option to Extend, with the effect of canceling and voiding any prior
or subsequent exercise so this Option to Extend is of no force or effect:
(i) Tenant's failure to timely exercise the Option to Extend in
accordance with the provisions of this Section.
(ii) The existence at the time Tenant exercises the Option to
Extend or at the commencement of the Option Term of any default beyond
any applicable notice and grace period.
(g) Without limiting the generality of any provision of the Lease,
time shall be of the essence with respect to all of the provisions of this
Section.
SECTION 14. NOTICES & ADDRESSES. The Lease is hereby amended to
provide that all bills, statements, consents, notices, requests, demands or
communications which either party may desire or be required to give to the
other shall be in writing and delivered to the other party personally or sent
by registered or certified or express United States mail, return receipt
requested, postage prepaid, or by reputable overnight delivery service
addressed to Landlord or Tenant, as applicable, at the addresses set forth at
the end of this Section. Any item sent by registered or certified or express
mail or by such delivery service shall be effective, respectively, upon being
deposited in the United States mail or when deposited with such delivery
service, as shown by the records of the mail or such service. However, the
time period in which a response to any such item must be given shall commence
to run from (a) in the case of mail, the date of receipt of the item by the
addressee thereof shown on the return receipt, or (b) in the case of such
overnight delivery service, the date of acceptance of delivery of the item by
an employee, officer, director or partner of the recipient party. Rejection
or other refusal to accept or the inability to deliver because of changed
address of which no notice was given, as indicated by mail return receipt or
advice from such courier service, shall be deemed to be receipt of the item
sent. Notices may also be served by personal service upon any officer,
director or partner of Landlord or Tenant, and shall be effective upon such
service. If Tenant is notified of the identity and address of any Mortgage
and/or Trust Deed Holder (as used in Paragraph 29(b) of the Lease), Tenant
shall give, by one of the methods described above, such party any Notice of
Default (as used in Paragraph 29(b) of the Lease) which Tenant gives to
Landlord under the Lease. Any party hereto, or any Mortgage and/or Trust
Deed Holder described in the preceding sentence, may by notice given by one
of the methods described above designate new addreses for notices to it.
Counsel for either party may deliver notices on behalf of its client. The
current addresses for notices to be sent to Landlord and Tenant respectively
pursuant to this Section are as follows:
Notices to Landlord shall be addressed:
Metropolitan Life Insurance Company
c/o Seaport Centre Project Manager
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▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
with copies to the following:
Metropolitan Life Insurance Company
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▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Assistant Vice President
Notices to Tenant shall be addressed as follows:
Cygnus, Inc.
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▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Mr. ▇▇▇▇▇ ▇▇▇▇▇, Senior Vice President, Human
Resources and Administration
SECTION 15. TIME OF ESSENCE. Without limiting the generality of any
other provision of the Lease, time is of the essence to each and every term
and condition of this Amendment.
SECTION 16. BROKERS. Tenant represents that in connection with this
Amendment it is represented by Staubach Company ("Tenant's Broker") and,
except for Tenant's Broker and Landlord's Broker (defined below), Tenant has
not dealt with any real estate broker, sales person, or finder in connection
with this Lease, and no such person initiated or participated in the
negotiation of this Lease, or showed the Premises to Tenant. Tenant hereby
agrees to pay any commission to which Tenant's Broker is entitled in
connection with this Lease and agrees that Landlord is not obligated to pay
or fund any commission payable to Tenant's Broker. Tenant hereby agrees to
indemnify, protect, defend and hold Landlord harmless from and against any
and all liabilities and claims for commissions and fees arising out of a
breach of the foregoing representation or agreement. Landlord represents
that in connection with this Lease it is represented by Cornish and ▇▇▇▇▇
("Landlord's Broker") and, except for Landlord's Broker and Tenant's Broker,
Landlord has not dealt with any real estate broker, sales person, or finder
in connection with this Lease, and no such person initiated or participated
in the negotiation of this Lease. Landlord hereby agrees to pay any
commission to which Landlord's Broker is entitled in connection with this
Lease pursuant to Landlord's written agreement with Landlord's Broker and
agrees that Tenant is not obligated to pay or fund any commission payable to
Landlord's Broker. Landlord hereby agrees to indemnify, protect, defend and
hold Tenant harmless from and against any and all liabilities and claims for
commissions and fees arising out of a breach of the foregoing representation
or agreement.
SECTION 17. ATTORNEYS' FEES. Each party to this Amendment shall bear
its own attorneys' fees and costs incurred in connection with the discussions
preceding, negotiations for and documentation of this Amendment. In the
event any party brings any suit or other proceeding with respect to the
subject matter or enforcement of this Amendment or the Lease, as amended, the
prevailing party (as determined by the court, agency or other authority
before which such suit or proceeding is commenced) shall, in addition to such
other relief as may be awarded, be entitled to recover attorneys' fees,
expenses and costs of investigation as actually incurred, including court
costs, expert witness fees, costs and expenses of investigation, and all
attorneys' fees, costs and expenses in any such suit or proceeding (including
in any action or participation in or in connection with any case or
proceeding under the Bankruptcy Code, 11 United States Code Sections 101 ET
SEQ., or any successor statutes, in establishing or enforcing the right to
indemnification, in appellate proceedings, or in connection with the
enforcement or collection of any judgment obtained in any such suit or
proceeding).
SECTION 18. EFFECT OF HEADINGS; RECITALS: EXHIBITS. The titles or
headings of the various parts or sections hereof are intended solely for
convenience and are not intended and shall not be deemed to or in any way be
used to modify, explain or place any construction upon any of the provisions
of this Amendment. Any and all Recitals set forth at the beginning of this
Amendment are true and correct and constitute a part of this Amendment as if
they had been set forth as covenants herein. Exhibits, schedules, plats and
riders hereto which are referred to herein are a part of this Amendment.
SECTION 19. FORCE AND EFFECT. Except as modified by this Amendment,
the terms and provisions of the Lease are hereby ratified and confirmed and
shall remain in full force and effect. Should any inconsistency arise
between this Amendment and the Lease as to the specific matters which are the
subject of this Amendment, the terms and conditions of this Amendment shall
control. This Amendment shall be construed to be a part of the Lease and
shall be deemed incorporated in the Lease by this reference.
SECTION 20. ENTIRE AGREEMENT; AMENDMENT. The Lease as amended by
this Amendment constitutes the full and complete agreement and understanding
between the parties hereto and shall supersede all prior communications,
representations, understandings or agreements, if any, whether oral or
written, concerning the subject matter contained in the Lease as so amended,
and no provision of the Lease as so amended may be modified, amended, waived
or discharged, in whole or in part, except by a written instrument executed
by all of the parties hereto.
SECTION 21. AUTHORITY. Each party represents and warrants to the
other that it has full authority and power to enter into and perform its
obligations under this Amendment, that the person executing this Amendment is
fully empowered to do so, and that no consent or authorization is necessary
from any third party. Landlord may request that Tenant provide Landlord
evidence of Tenant's authority.
SECTION 22. COUNTERPARTS. This Amendment may be executed in
duplicates or counterparts, or both, and such duplicates or counterparts
together shall constitute but one original of the Amendment. Each duplicate
and counterpart shall be equally admissible in evidence, and each original
shall fully bind each party who has executed it.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first set forth above.
TENANT: CYGNUS, INC
a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇,
Senior Vice President, Human Resources and
Administration
Date: June 9, 1998
LANDLORD: METROPOLITAN LIFE INSURANCE COMPANY,
a New York corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Assistant Vice President
Date: June 9, 1998
