EXHIBIT 10.12
FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE is made and entered into this 18th day of
March, 1997 by and between SFO OFFICE ASSOCIATES LLC, a California limited
liability company ("Landlord") and MEGABIOS CORP., a California corporation
("Tenant").
1. Recitals. This First Amendment to Lease ("Agreement") is made with
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reference to the following:
1.1. Provident Life and Accident Insurance Company, a Tennessee
Corporation ("Provident") and Tenant were the original parties to a lease dated
December 21, 1993 ("Lease") whereby Provident leased to Tenant and Tenant hired
from Provident the following real property (collectively, the "Premises")
situated in the City of Burlingame, San Mateo County, California:
(a) All of the rentable space within "Building A" of the property
commonly known and designated as 863 Mitten Road (the "Building A Space")
(b) A portion (more particularly described in the Lease) of the
rentable space within "Building C" of the property commonly known and designated
as 863 Mitten Road (the "Building C Space").
The Building A Space and the Building C Space together comprise
approximately 27,279 rentable square feet.
1.2. Landlord is successor in interest to Provident as owner of the real
property in which the Premises is situated and as landlord under the Lease and
as such is, among other things, a "successor Landlord" for purposes of Paragraph
l4(b)(iii)B of the Lease. The Initial Term shall expire November 30, 1999, for
the purposes of Paragraph 14(b)(iii).
1.3. Pursuant to the Lease, Tenant was granted an option to lease
additional space in Building C ("Option to Expand") and an option to extend the
initial five (5) year term of the Lease for an additional five (5) year period
("Option to Extend").
1.4. The Lease is in full force and effect and Tenant currently is in
possession of and occupies all of the Premises.
1.5. Tenant, by this Agreement, is hereby exercising the Option to
Expand to include within the Premises the remaining rentable space in Building C
comprised of approximately 7,394 rentable square feet ("Additional Space"). By
License Agreement dated January 17, 1997 ("License Agreement"), Landlord granted
to Tenant a license to immediately enter the Additional Space for the purpose of
inspecting said space, removing asbestos-containing floor sealing and mastic
(with Landlord's prior written permission), and demolishing certain existing
interior improvements.
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1.6. Tenant, by this Agreement, is hereby exercising the Option to
Extend, and Landlord and Tenant have agreed upon the terms of an additional
option to extend the Lease Term.
1.7. Contemporaneously with the execution of this Agreement, Landlord
and Tenant have executed a lease ("Building E Lease") whereby Landlord is
leasing to Tenant and Tenant is hiring from Landlord all of the rentable space
within "Building E" of the property commonly known and designated as ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ (▇▇▇ "▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇"). The initial term of the Building E Lease is for a
period of ten (10) years ("Building E Lease Initial Term"), and Tenant is
granted therein an option to extend such term for an additional period of five
(5) years ("Building E Lease Extension Term").
1.8. Landlord and Tenant desire and intend by this Agreement to amend
the Lease in order to make certain changes thereto which are necessitated by
Tenant's exercise of the Option to Expand and exercise of the Option to Extend
and to make additional changes thereto that have been agreed upon by Landlord
and Tenant all as more particularly set forth below.
WHEREFORE, in consideration of the mutual covenants herein made and other
good and valuable consideration, the receipt of which is acknowledged, the
parties hereto hereby agree as follows:
2. Recitals Correct. The Recitals set forth in Section 1 above are true and
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correct and are part of this Agreement.
3. Additional Premises. Pursuant to Tenant's exercise of the Option to
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Expand, commencing on the date of this Agreement ("Additional Space Delivery
Date"), the Additional Space shall (except as otherwise provided in this
Agreement) become subject the terms of this Lease as modified by this Agreement.
Commencing on the Additional Space Rent Commencement Date (as defined in
Paragraph 7 below), the total rentable area pursuant to the Lease is agreed by
Landlord and Tenant to be 34,673 rentable square feet. On the Additional Space
Delivery Date, Landlord shall deliver the Additional Space to Tenant for
Tenant's exclusive use and occupancy, and Tenant shall thereafter have the
exclusive right to take possession of and occupy the Additional Space in
accordance with all of the terms and conditions of the Lease as modified by this
Agreement. Tenant's occupancy of the Additional Space from and after the
Additional Space Delivery Date shall be pursuant to the terms of the Lease, as
hereby amended, which shall supersede the provisions of the License Agreement.
The condition of the Additional Space as delivered to Tenant, Landlord's
obligations with respect to tenant improvements, the commencement of rent
obligations for the Additional Space and the computation of any credit against
rent for Option Consideration paid with respect to the Additional Space shall
all be determined by Landlord and Tenant as provided in Section 1(c) of the
Lease; provided, however, Landlord and Tenant agree that Landlord has performed
and completed all removal of Hazardous Materials as described in Paragraph
1(c)(2)(a) of the Lease and all seismic and other work described in Paragraph
1(c)(2)(c) of the Lease and that no further work of either nature shall be
required. For purposes of computing the "Increment Allowance"
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for tenant improvements to the Additional Space, the term "Initial Term" shall
mean the Term of the Lease prior to Tenant's exercise of the Option to Extend.
4. Right of First Refusal. The words "Lease Term" in Paragraph 1(d) of the
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Lease are hereby deleted and the words "Initial Term" are substituted in place
thereof. The last sentence of Paragraph 1(d)(2) of the Lease is hereby amended
to delete the parenthetical phrase "(except as expressly modified by this
paragraph 1(d))." Paragraph 1(d)(3) of the Lease is hereby deleted in its
entirety.
5. Term. Pursuant to Tenant's exercise of the Option to Extend, Paragraph
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3(a) of the Lease is hereby amended in its entirety to read as follows:
"3.(a) Initial Term. The initial term of this Lease shall be for a
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period of ten (10) years and 23 days commencing on November 8, 1994
("Commencement Date") and ending on November 30, 2004 (the "Initial
Term"). "
6. Option to Extend. Paragraph 3(b) of the Lease is hereby amended in its
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entirety to read as follows:
"3.(b) Option to Extend Initial Term. Provided that Tenant is not in
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default in any of the provisions of this Lease, at the time of the exercise
of the option to extend set forth in this Paragraph 3(b), Tenant may elect
to extend the Initial Term of this Lease ("Option Term"). The Option Term
shall be for a period commencing upon the expiration of the Initial Term
and ending on the same date as the termination date of the Building E Lease
Initial Term; provided, however, that if Tenant, concurrently with the
exercise of this option, has the right, and validly exercises such right,
to extend the term of the Building E Lease as provided therein, the Option
Term shall end on the same date as the termination date of the Building E
Lease Extension Term. It is the intent of this Paragraph that the Initial
Term of this Lease may only be extended to a period which is coterminous
with the Building E Lease. The option to extend may be exercised by Tenant
by a written notice ("Extension Notice") delivered to Landlord not less
than two hundred seventy (270) nor more than three hundred sixty (360) days
prior to the end of the Initial Term. Landlord's failure to so receive an
Extension Notice shall be deemed Tenant's election not to extend the
Initial Term, and Tenant shall thereafter have no further right to extend
the Initial Term. If Tenant duly delivers its Extension Notice, the term of
this Lease shall thereupon be extended in accordance with Tenant's
election, and the Option Term shall begin on the day immediately following
the last day of the Initial Term.
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The Option Term shall be subject to all the terms and conditions of this
Lease except that (i) the Basic Rent shall be the same amount per rentable
square foot of the Premises as the Base Rent then payable pursuant to the
Building E Lease and shall adjust as and when the Base Rent adjusts under
the Building E Lease and the Base Year shall be adjusted to be the same
Base Year as under the Building E Lease, (ii) after Tenant exercises its
Option Term, Tenant shall have no further right to extend the Lease Term
(as defined below), and (iii) the provisions of Paragraph 1(d) of the Lease
shall be inapplicable to the Option Term.
The Initial Term and the Option Term are collectively referred to
herein as the "Lease Term."
7. Rent. Commencing on the date that Tenant's rental obligations begin with
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respect to the Additional Space (as provided in Paragraph 1(c)(2) of the Lease)
(the "Additional Space Rent Commencement Date"), the Basic Rent for the Premises
(per month) shall be calculated by multiplying 34,673 square feet times either
(i) $0.68557 if such date occurs prior to June 1, 1997, or (ii) $0.76057 if such
date occurs on or after June 1, 1997. If such date occurs prior to June 1, 1997,
Basic Rent, as calculated above, shall be adjusted on June 1, 1997 to $0.76057
per rentable square foot per month ($26,371.24). Commencing December 1, 1999,
the Basic Rent shall be $27,238.07 per month, and commencing June 1, 2002, the
Basic Rent shall be $28,104.89 per month.
8. Tenant's Percentage. Subject to provisions of the Lease regarding
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commencement of the obligation to pay rent with respect to the Additional Space,
Landlord and Tenant agree that, effective as of the Additional Space Rent
Commencement Date, Tenant's Percentage Share of the Project for purposes of the
Lease is increased to 22.77% as a result of the addition of the Additional Space
to the Premises.
9. Equipment Platform(s). Tenant is hereby granted a license to construct
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and maintain, at Tenant's sole cost and expense, an additional platform or
platforms above the roofs of Building A and/or Building C on which to install
mechanical equipment necessary for Tenant's permitted use of the Premises
("Additional Equipment Platform"). The following terms and conditions shall
apply to the installation, maintenance, and removal of each Additional Equipment
Platform:
9.1. The terms and conditions set forth in Paragraphs 1(b)(1), 1(b)(2),
1(b)(3), 1(b)(4) and 15 of the Lease;
9.2. Tenant shall maintain each Additional Equipment Platform in good
condition and repair, at Tenant's sole cost and expense;
9.3. If, as a result of Tenant's construction of any such Additional
Equipment Platform, Landlord's out-of-pocket cost of repairing or replacing the
roof of Building A and/or
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Building C is increased over the cost of repairing or replacing such roof absent
the presence of the Additional Equipment Platform, Tenant shall promptly upon
demand from Landlord reimburse Landlord for such actual additional cost at such
time as the applicable repair or replacement occurs; provided, however, that if
Landlord intends to seek any reimbursement for any such additional cost, it
must, prior to authorizing any such work to be performed, provide to Tenant for
Tenant's prior review and approval, which approval shall not be unreasonably
withheld or unduly delayed, the following: (i) written notice of Landlord's
estimate of any such additional cost and the basis for calculating such
additional cost; and (ii) a copy of the proposed contract relating to the work
to be performed.
9.4. All Additional Equipment Platforms and related equipment shall, at
the written request of Landlord, be removed by Tenant upon termination of this
Lease and the roof shall be patched and repaired as reasonably required by
Landlord as a result of the removal of the Additional Equipment Platform and
associated equipment.
10. Continued Effect. The Lease, as hereby amended, remains in full force
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and effect.
IN WITNESS WHEREOF, the parties hereto, by their duly authorized and
empowered representatives, have executed this FIRST AMENDMENT TO LEASE and make
it effective as of the day and year first above written.
LANDLORD: TENANT:
SFO OFFICE ASSOCIATES LLC, a MEGABIOS CORP., a California corporation
California limited liability company
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Manager ------------------------------
Title: CFO and VP Business Development
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