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EXHIBIT 10.7(a)
FIRST AMENDMENT TO LEASE
This FIRST AMENDMENT TO LEASE ("Amendment") is made and entered into
this 19th day of December, 1996 by and between Xxxxxxx and Xxxxx Xx,
Co-Trustees of the Ng Family Trust, dated December 21, 1987 ("Lessor") and
Symyx Technologies, Inc. ("Lessee").
RECITALS
A. Whereas Lessor and Lessee entered into that certain lease
("Lease") dated as of November 15, 1996 with respect to that approximately
32,794 square foot building located at 0000 Xxxxxxx Xxxxxxxxxx, Xxxxx Xxxxx
Xxxxxx, Xxxxx Xxxxx, Xxxxxxxxxx ("Premises") which Premises form a part of that
land owned by Lessor (collectively "Property"), which Property is further
described in Exhibit A hereto;
B. Whereas Lessee has an option to purchase the Property under
certain conditions contained in the Lease;
C. Whereas Lessor has had difficulty obtaining a subordination and
non-disturbance agreement from San Xxxxxx Ranch Co., a California partnership
("San Xxxxxx Ranch") which partnership holds a security interest in the
Property as evidenced by that certain Short Form Deed of Trust and Assignment
of Rents dated December 20, 1985 and recorded in the Official Records of Santa
Xxxxx County at Book J555, page 150 ("Deed of Trust") as security for the
repayment of a promissory note with an outstanding balance of approximately One
Million Nine Hundred Thousand Dollars ($1,900,000) (the "Note");
D. Whereas Lessee is concerned that failure to obtain such a
subordination and non-disturbance agreement has a significant and adverse
impact on Lessee's rights under the Lease;
E. Whereas Lessee and Lessor entered into that certain Agreement
executed on the 12th day of December 1996 which Agreement sets forth conditions
precedent to effecting Lessee's obligations under the Lease ("Conditions
Agreement");
NOW THEREFORE, in consideration of the foregoing and other good and
valuable consideration the receipt of which is hereby acknowledged, Lessor and
Lessee agree that the Lease shall be amended as follows:
1. Abatement of Base Rent: Paragraph 1.5 of the Lease shall be
modified such that Base Rent shall be payable on the first day of each month
commencing July 1, 1998, not February 1, 1997.
2. Replacement of Financing/Subordination and Non-Disturbance
Agreement: Lessor shall, by September 30, 1997, either (1) repay the Note and
Release the Deed of Trust in Order to eliminate the security interest of San
Xxxxxx Ranch; or (2) obtain replacement financing from a new lender (which
lender shall agree to execute a Subordination and Non-Disturbance Agreement
substantially in the form attached hereto as Exhibit B), repay the Note and
release the Deed of Trust
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in order to eliminate the security interest of San Xxxxxx Ranch (subsections (1)
and (2) of this paragraph 2 shall hereinafter be collectively referred to as
"Replacement Financing").
3. Lessee Contribution for Replacement Financing: In the event Lessor
obtains Replacement Financing such that the Note is repaid and the Deed of Trust
reconveyed by September 30, 1997, Lessee agrees to reimburse Lessor for fifty
percent (50%) of Lessor's reasonable costs incurred to obtain the Replacement
Financing ("Replacement Financing Costs"), provided, however, that in no event
shall Lessee's contribution to the Replacement Financing Costs exceed Twenty
Thousand Dollars ($20,000). Lessee agrees to reimburse Lessor for such
Replacement Financing Costs within ten (10) days following receipt by Lessee
from Lessor of an invoice setting forth the Replacement Financing Costs and a
copy of Lessor's canceled check evidencing payment of such invoice.
4. Bank Account for Deed of Trust Payments: In order to insure that
Lessor meets its obligations with respect to amounts due under the Note until
the Replacement Financing is obtained, Lessor shall deposit One Hundred Thirteen
Thousand Four Hundred and Eighty-Four Dollars and 96/00 ($113,474.96) into a
bank account in the name of "Symyx Technologies, Inc. as Trustee for the Ng
Family Trust" ("Trust Account") which amount Lessor hereby represents to be the
sum of all monthly payment amounts due San Xxxxxx Ranch under the terms of the
Note from the date hereof to September 30, 1997. The Trust Account shall be an
interest bearing account with the interest paid to Lessor. Beginning February 1,
1997 and ending on the earlier of (1) the date that Lessor repays the Note; or
(2) September 30, 1997, Lessee shall withdraw from the Trust Account, and pay to
San Xxxxxx Ranch, the amount of Fourteen Thousand One Hundred Eighty-Four
Dollars and 37/00, which amount shall be sent by Lessee so that it is received
by San Xxxxxx Ranch on or before the first business day of each month ("Monthly
Note Payment"). Lessee shall provide to Lessor, on or before the first business
day of each applicable month, a copy of the Monthly Note Payment made to San
Xxxxxx Ranch from the Trust Account ("Payment Notice"). If Lessor does not
receive Payment Notice on or before the first business day of a particular
month, Lessor shall have the right to make the Monthly Note Payment for that
month and to obtain reimbursement of such sum so paid from the Trust Account.
Notwithstanding the foregoing, Lessee shall be held harmless from, and shall not
in any way be liable to Lessor or any third party for any claims, damages,
demands, losses, costs and expenses, including attorneys' fees, and any other
losses of any kind or nature, whether direct or indirect, arising as a result of
any breach of, or relating in any way to the Note or Deed of Trust, provided
however, that Lessee shall not be released from liability for any use of the
Trust Account which is in violation of the provisions of this Amendment. Upon
the provision by Lessor of reasonable proof to Lessee that Lessor has obtained
Replacement Financing, paid the Note and released the Deed of Trust as set forth
in paragraph 2 hereof, Lessee shall release any amounts remaining in the Trust
Account shall be released to Lessor.
5. Option to Purchase: If Lessor does not meet the obligations set forth
in paragraph 2 hereof within the time permitted by said paragraph, Lessee shall
have an option to purchase the Property ("Lessee Option") for One Million Nine
Hundred Thousand Dollars ($1,900,000) ("Purchase Price"). As consideration for
the Lessee Option, Lessee shall, upon execution of this Amendment, pay Lessor or
its designees Eighteen Thousand One Hundred Eighteen Dollars and
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65/00 ($18,118.65). In order to exercise the Lessee Option, Lessee must provide
written notice to Lessor of its intent to exercise the Lessee Option ("Lessee
Option Notice") on or before October 10, 1997 ("Option Exercise Date"). If the
Lessee Option Notice is properly provided on or before the Option Exercise
Date, Lessor and Lessee shall proceed to close the purchase and sale of the
Property in accordance with the terms of paragraphs 60(1) through 60(9) of the
Lease. If Lessee fails to provide notice of its intent to exercise the Lessee
Option on or before the Option Exercise Date, the Lessee Option shall
terminate. Termination of this Lessee Option shall not affect any other rights
of Lessee under the Lease, including, but not limited to, any other option
rights to purchase the Property, or any right of first refusal contained
therein. In the event Lessee exercises the Lessee Option, Lessor shall repay the
Note and cause the Deed of Trust to be reconveyed at the closing of the sale of
the Property to Lessee.
6. Further Assurances: Lessor shall execute and deliver such further
instruments and take such further action as may be reasonably requested by
Lessee to effect the purposes of this Amendment.
7. Amendment of Lease: In the event of any inconsistency between
the provisions of this Amendment and the provisions of the Lease, the
provisions of this Amendment shall prevail.
8. Conditions Agreement: Lessor and Lessee agree that the conditions
precedent to effecting Lessee's obligations under the Lease as set forth in the
Conditions Agreement have been satisfied and/or waived by Lessor and Lessee.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment, by
their duly-authorized representatives, as of the respective dates set forth
below.
LESSOR:
XXXXXXX XX AND XXXXX XX, CO-TRUSTEES
OF THE NG LIVING TRUST DATED
DECEMBER 21, 1987
By: /s/ XXXXXXX XX
---------------------------------
Name: Xxxxxxx Xx
Date: 12/19/96
---------------------------
By: /s/ XXXXX XX
---------------------------------
Name: Xxxxx Xx
Date: 12/19/96
---------------------------
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LESSEE:
SYMYX TECHNOLOGIES, INC.,
A CALIFORNIA CORPORATION
By: /s/ XXX XXXXXXXXXX
---------------------------------
Name: Xxx Xxxxxxxxxx
Title: Chief Financial Officer
--------------------------
Date: December 19, 1996
--------------------------
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EXHIBIT A
All that certain Real Property in the City of Santa Xxxxx, County of Santa
Xxxxx, State of California, described as follows:
PARCEL ONE:
Parcel 2, as shown on the Parcel Map filed for record September 12, 1975 in the
Office of the County Recorder of Santa Xxxxx County in Book 361 of Maps, at
Pages 25, 26 and 27.
PARCEL TWO:
A non-exclusive easement for ingress and egress over the following described
real property.
A portion of that 2.238 acre parcel shown as Parcel 3 on that Parcel Map filed
for record on September 12, 1975 in Book 361 of Maps, at Pages 25, 26 and 27,
Santa Xxxxx County Records, more particularly described as follows:
A strip of land 12.5 feet wide lying adjacent to and Easterly of the Western
boundary of said Parcel 3. The eastern boundary of said strip being more
particularly described as follows:
Beginning at the most Southwesterly corner of said Parcel 3; thence from said
Point of Beginning along the Western boundary of said Parcel 3, North 0 deg
24'20" West, 30.00 feet to the True Point of Beginning; thence from said True
Point of Beginning continuing along the Western boundary of said Parcel 3,
252.00 feet.
PARCEL THREE:
A non-exclusive easements for ingress and egress over a portion of Parcel 1, as
shown on Parcel Map filed in Book 361 of Maps, at Pages 25, 26 and 27, being
more particularly described as follows:
Easement "A"
Beginning at a point which bears North 00 deg 24'20" West, 31.64 feet from the
Southeast corner of said Parcel 1; thence from said Point of Beginning South 89
deg 17'05" West, 45.00 feet; thence North 00 deg 24'20" West, 131.49 feet;
thence North 44 deg 35'40" East, 35.35 feet; thence South 00 deg 24'20" East,
99.25 feet; thence South 45 deg 24'20" East, 16.97 feet; thence North 89 deg
17'05" East, 8.00 feet to a point in the Eastern boundary of Parcel 1; thence
South 00 deg 24'20" East, 45.00 feet to the Point of Beginning.
Easement "B"
A strip of land 20 feet in width lying Westerly of and being contiguous to a
portion of the Eastern boundary line of said Parcel 1, the Eastern line of said
strip being more particularly described as follows:
Beginning at a point on said Eastern boundary line from which the Southeast
corner of Parcel 1 bears South 00 deg 24'20" East, 152.54 feet; thence from
said Point of Beginning North 00 deg 24'20" West 128.50 feet.
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PARCEL FOUR:
A non-exclusive easement for ingress and egress over a portion of that 2.238
acre shown as Parcel 3 on that Parcel Map filed for record on September 12, 1975
in Book 361 of Maps, at Pages 25, 26 and 27 Santa Xxxxx County Records, said
easement being more particularly described as follows:
Beginning at the Southwest corner of said Parcel 3; thence along the Westerly
boundary line of said Parcel 3, North 00 deg 24' 20" West, 30.00 feet to the
True Point of Beginning; thence from said True Point of Beginning North 89 deg
17' 05" East, 294.76 feet; thence through a curve to the right tangent to the
last bearing having a central angle of 62 deg 42' 36" and a radius of 20.00 feet
from an arc distance of 21.89 feet to a point on the Southeasterly boundary line
of said Parcel 3; thence along said Southeasterly boundary line North 45 deg
10' 12" East, 44.91 feet to a point in the Westerly right-of-way line of Oakmead
Village Drive as said Drive is shown on the Parcel Map hereinabove referred to;
thence along said Westerly right-of-way through a curve to the right tangent to
other bearing North 29 deg 27' 25" West through a central angle of 02 deg
26' 08" with a radius of 355.00 feet for an arc length of 15.09 feet; thence
leaving said right-of-way line of Xxxxxxx Xxxxxxx Xxxxx Xxxxx 00 deg 37' 58"
West, 30.53 feet; thence North 68 deg 10' 57" West, 6.41 feet; thence South 89
deg 17' 05" West, 303.37 feet to a point on the Westerly boundary line of said
Parcel 3; thence South 00 deg 24' 20" East along said Westerly line 25.00 feet
to the True Point of Beginning.
PARCEL FIVE:
A non-exclusive easement for ingress and egress to those parcels shown as
Parcels 1, 2 and 4 on that Parcel Map filed for record on September 12, 1975 in
Book 361 of Maps, at Pages 25, 26 and 27 Santa Xxxxx County Records, over the
following described real property:
A portion of that 2.238 acre parcel shown as Parcel 3 on that Parcel Map filed
for record on September 12, 1975 in Book 361 of Maps at Pages 25, 26, 27, Santa
Xxxxx County Records, more particularly described as:
A strip of land 12.5 feet wide the Southeasterly line of which is particularly
described as follows:
Beginning at the Southeasterly corner of said Parcel 3, said corner lying on the
Western line of Oakmead Village Drive; thence South 45 deg 10' 12" West, 45
feet.
PARCEL SIX:
A non-exclusive easement for ingress and egress over a portion of that 1.737
acre parcel shown as Parcel 4 on that Parcel Map filed for record on September
12, 1975 in Book 361 of Maps, at Pages 25, 26 and 27, Santa Xxxxx County
Records, said easement being more particularly described as follows:
A strip of land 12.5 feet wide the Northwesterly line of which is more
particularly described as follows:
Beginning at the most Northerly corner of Parcel 4 herein described; thence
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South 45 deg 10' 12" West, along the Northwesterly line of said Parcel 4, 45.00
feet to the terminus of the herein described line.
Excepting therefrom that portion of said property lying below a depth of five
hundred (500) feet measured vertically from the contour of the surface thereof
as reserved by Golden Empire Investment Corporation, a Corporation, by Deed
recorded November 3, 1972 in Book 0097 of Official Records, Page 711; provided
however, that said Grantor, its successors and assigns shall not have the right
for any and all purposes to enter above 500 feet, measured vertically from the
contour of the surface of said property.
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EXHIBIT B
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RECORDING REQUESTED BY AND,
WHEN RECORDED, RETURN TO:
Wilson, Sonsini, Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Attn: Real Estate Department/MGI
_______________________________________________________________________________
SUBORDINATION NON-DISTURBANCE AND ATTORNMENT AGREEMENT
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THIS AGREEMENT is made as of the ____ day of November, 1996, by and between
_______________, a California Partnership ("Lender"), and Symyx Technologies,
Inc., a California corporation ("Tenant"), with reference to the following
facts:
RECITALS:
A. Lender is the beneficiary under that certain Deed of Trust (the "Deed
of Trust") dated December 20, 1985, by Xxxxxxx Xx and Xxxxx Xx, Husband and
Wife, as Joint Tenants in favor of All-California Title Company, as trustee,
recorded December 20, 1985, at Book J555, Page 150, in the Official Records of
Santa Xxxxx County, California, which Deed of Trust encumbers that certain
improved real property (the "Property") commonly known as 0000 Xxxxxxx
Xxxxxxxxxx, Xxxxx Xxxxx, Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxx, as more particularly
described on Exhibit "A" attached hereto and made a part hereof.
B. Tenant is the tenant under that certain Lease dated ________________,
1996, between Xxxxxxx and Xxxxx Xx, Trustees for the Ng Family Trust, as
landlord, and Tenant, regarding the Property.
C. Tenant has agreed to subordinate its interest under the Lease to the
interest of Lender under the Deed of Trust and to attorn to Lender on the terms
and conditions described herein. As an inducement to Tenant to execute and
deliver this Agreement, Lender has agreed not to disturb Tenant's use,
possession and enjoyment of the Property, and not to disturb Tenant's right to
purchase the Property, as provided herein.
NOW, THEREFORE, for and in consideration of the premises and mutual
covenants contained herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
covenant and agree as follows:
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AGREEMENT
1. Lender hereby consents to and ratifies the execution, delivery and
performance of the Lease. So long as Lender is not in default under this
Agreement, all of the right, title and interest of Tenant in, under and to the
Lease and the Property shall be and remain at all times subject and subordinate
to the Deed of Trust and to all renewals, modifications, replacements,
consolidations and extensions thereof and to any and all advances made
thereunder and all interest thereon.
2. In the event Lender or any other purchaser at a foreclosure sale or
sale under private power contained in the Deed of Trust becomes the owner of the
Property by reason of any foreclosure of the Deed of Trust or the acceptance of
a deed in lieu of foreclosure, then, so long as Lender is not in default under
this Agreement, Tenant shall be bound to Lender or such other purchaser under
all of the terms, covenants and conditions of the Lease for the remaining
balance of the term thereof and any extensions thereof, with the same force and
effect as if Lender or such other purchaser had been the original landlord under
the Lease. Tenant hereby covenants to attorn to Lender or such other purchaser
as its landlord and that such attornment shall be effective and self-operative
without the execution of any further instruments on the part of any of the
parties to this Agreement.
3. So long as no default by Tenant exists under the Lease (beyond any
period available to cure such default), Lender or such other purchaser shall
recognize and shall not disturb the leasehold estate of Tenant under all of the
terms, covenants and conditions of the Lease for the remaining balance of the
term and any extensions thereof with the same force and effect as if Lender or
such other purchaser were the original landlord under the Lease. Without
limiting the generality of the foregoing sentence, (i) Tenant's use and
possession of the Property and Tenant's rights and privileges (including,
without limitation, all extension options and rights, including rights to
purchase) under the Lease and any extensions thereof shall not be disturbed,
diminished or interfered with by Lender in the exercise of any of its rights
under the Deed of Trust or by any succeeding owner of the Property as a result
of the exercise by Lender of any such rights, (ii) the Lease shall not be
terminated or modified by the exercise of any Lender's rights under the Deed of
Trust or by any succeeding owner of the Property as a result of the exercise by
Lender of any such rights, and (iii) Lender will not join Tenant as a party
defendant in any action or proceeding for the purpose of terminating or
modifying Tenant's interest and estate under the Lease because of any default
under the Deed of Trust or any other instrument evidencing or securing the
indebtedness secured thereby. Notwithstanding anything to the contrary in the
Deed of Trust, (a) Lender shall make all insurance proceeds and condemnation
awards received by it available for repair and restoration of the Property to
the extent necessary for Landlord and Tenant to fulfill their repair and
restoration obligations under the Lease, and (b) any and all insurance and
condemnation proceeds payable with respect to Tenant's property or the
interruption or relocation of Tenant's business will be paid to Tenant.
4. This Agreement shall be binding upon the undersigned and their
respective heirs, successors, successors-in-interest and assigns and will inure
to the benefit of all persons and
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entities now or hereafter having any right, title or interest in, under or to
the Deed of Trust and the Lease.
IN WITNESS WHEREOF, the undersigned have executed this Subordination,
Non-Disturbance and Attornment Agreement, by their duly-authorized signatories,
as of the day and year first above written.
TENANT:
Symyx Technologies, Inc., a California corporation
By: _____________________________________________
Name: ___________________________________________
Title: __________________________________________
LENDER:
_________________________________________________
By: _____________________________________________
Name: ___________________________________________
Title: __________________________________________
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STATE OF CALIFORNIA
COUNTY OF ________________
On ______________, 199___, before me ____________________________, a
Notary Public in and for the County and State aforesaid, personally appeared
________________, who is personally known to me (or proved to me on the basis
of satisfactory evidence) to be the person whose name is subscribed to the
within instrument and acknowledged to me that he/she executed the same in
his/her authorized capacity and that by his/her signature on such instrument
the person, or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS, my hand and official seal.
_____________________________
Signature
______________________________________________________________________________
STATE OF CALIFORNIA
COUNTY OF _______________________
On ______________, 199___, before me ____________________________, a
Notary Public in and for the County and State aforesaid, personally appeared
________________, who is personally known to me (or proved to me on the basis
of satisfactory evidence) to be the person whose name is subscribed to the
within instrument and acknowledged to me that he/she executed the same in
his/her authorized capacity and that by his/her signature on such instrument
the person, or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS, my hand and official seal.
_____________________________
Signature
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