SIXTH AMENDMENT to LEASE BETWEEN EMERY STATION OFFICE II, LLC (LANDLORD) And NOVACAL PHARMACEUTICALS, INC. (TENANT) EMERYSTATION NORTH PROJECT Emeryville, California
Exhibit
10.1 sixth Amendment to Lease Agreement
SIXTH
AMENDMENT
to
LEASE
BETWEEN
XXXXX
STATION OFFICE II, LLC (LANDLORD)
And
NOVACAL
PHARMACEUTICALS, INC. (TENANT)
EMERYSTATION
NORTH PROJECT
Emeryville,
California
That
certain lease dated June 3, 2004, by and between Xxxxx Station Office II, LLC, a
California Limited Liability Company, as Landlord (“Landlord”),
and NovaBay Pharmaceuticals, Inc. (formerly Novacal Pharmaceuticals, Inc.), a
California Corporation, as Tenant (“Tenant”),
a such lease was amended by First Amendment dated June 22, 2004, by Second
Amendment dated July 22, 2004, by Third Amendment dated March 25, 2005, by
Fourth Amendment dated September 30, 2006 and by Fifth Amendment dated November
20, 2007 (collectively, the “Lease”),
is hereby further amended as outlined below. The effective date of
this Sixth Amendment shall be September 1, 2008 (the “Sixth
Amendment Effective Date”). From and after the Sixth Amendment
Effective Date the Lease and this Sixth Amendment thereto shall be referred to
as the “Lease”
for all purposes.
RECITALS:
Under the
Lease, Tenant currently leases from Landlord, all in the EmeryStation North
building at 0000 Xxxxxx Xxxxxx xx Xxxxxxxxxx, XX: Xxxxx 000
(containing 8,478 rentable square feet), Suite 575 (containing 2,248 rentable
square feet), Suite 580 (containing 952 rentable square feet), Suite 370
(containing 3,701 rentable square feet) and Suite 395 (containing 325 rentable
square feet), and has an obligation to lease Suite 360 (containing 3,052
rentable square feet) upon Landlord’s delivery of said suite to Tenant, which
Landlord and Tenant hereby acknowledge has not yet occurred. Per the
Lease, various of the above Suites have different maturity dates.
Tenant
has requested to lease from Landlord and Landlord has agreed to lease to
Tenant Suite 525 in the same building. Tenant has also
requested, and Landlord has agreed, to terminate Tenant’s lease as it pertains
to Suites 360 and 370. Additionally, Tenant and Landlord have agreed
to extend the Term of Tenant’s Lease and make all portions thereof co-terminus,
and to modify rental and other terms, all per the specifics enumerated
herein.
SIXTH
AMENDMENT TERMS:
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I.
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SUITE
525:
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Suite
525, more fully described in Exhibit A hereto, measures 6,420 rentable square
feet. Tenant understands and acknowledges that Suite 525 is currently
leased to and occupied by tenant Neosil, Inc. under a lease set to expire per
its terms on October 31, 2008. Suite 525 will be added to Tenant’s
Premises effective November 1, 2008 or as soon thereafter as Neosil has vacated
the upon the scheduled expiry of Neosil’s lease is terminated and it has left
the space in the condition required under its lease (the “Suite
525 Commencement Date”). If Landlord is able, under
commercially-reasonable terms, to arrange for Neosil’s departure prior to their
scheduled lease expiry, then Landlord and Tenant agree that the Suite 525
Commencement Date shall be accelerated to that date which is ten (10)
days following Landlord’s written notice to Tenant that the space shall be
available to it earlier. As detailed in Section 2.3 of the Lease,
Landlord shall not be liable for any delay in being able to deliver the Suite
525 space to Tenant for any reason including but not limited to Neosil’s
unauthorized holdover in the space. Landlord agrees to use
commercially-reasonable efforts to cause Neosil to vacate Suite 525 per the
terms of its occupancy. Tenant agrees to accept Suite 525 in its then
as-is condition, with no TI Allowance or other improvements from
Landlord.
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II.
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SUITES
360 AND 370:
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Landlord
and Tenant acknowledge that Tenant is currently leasing and occupying Suite 370
per the terms of the Fifth Amendment but that Tenant’s lease of Suite 360 has
not yet commenced. With this Sixth Amendment, Landlord and Tenant
hereby terminate Tenant’s lease of Suite 360 before it has
commenced. Similarly, as soon after the Suite 525 Commencement Date
that Tenant vacates Suite 370 and leaves it in the condition required under the
Lease, Landlord and Tenant hereby agree to terminate Tenant’s lease on Suite 370
as well. In consideration for Landlord’s termination of Tenant’s
lease on Suites 360 and 370, Tenant agrees to forgo receipt of any of the
$86,000 Tenant Improvement Allowance referenced in Section V of the Fifth Lease
Amendment. As outlined in Section VI hereof, Tenant has agreed that
Landlord shall retain the Security Deposit relating to Suite 370 as security for
the overall Lease and reflecting the addition to the Premises of Suite
525.
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III.
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LEASE
TERM:
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Landlord
and Tenant hereby extend the Term of the Lease such that it will expire October
31, 2015. This new expiry date will now apply to the entirety of
Tenant’s Premises and all Suites leased hereunder.
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IV.
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RENT
AND EXPENSES:
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Beginning
on the first day of the first calendar month following the Suite 525
Commencement Date (the “New
Rent Schedule Start Date”), Rent and Expenses due and payable by Tenant
under the Lease will be altered as follows:
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a)
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The
Monthly Base Rent due and payable for the entirety of Tenant’s Premises
(other than for Suite 370, if in fact Tenant still occupies that Suite as
of the New Rent Schedule Start Date) shall be $48,500.00. That
Monthly Base Rent amount shall increase three percent (3%) upon the first
anniversary of the New Rent Schedule Start Date and annually thereafter
throughout the Lease Term. This Monthly Base Rent shall be
deemed fully net of all Operating Expenses and Taxes except in the case of
Suite 395, which is more fully discussed below. If Tenant
continues to occupy Suite 370 after the New Rent Schedule Start Date, then
it shall continue to pay Monthly Base Rent (as well as all Operating
Expenses and Taxes) for that Suite per the terms of the Fifth Amendment
until such time as Tenant vacates that suite, leaving it in the condition
required by the Lease.
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b)
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For
the period from the Suite 525 Commencement Date and the New Rent Schedule
Start Date (in the event those two dates are not the same), Tenant shall
continue to pay the amounts of rent and expenses currently specified under
the existing Lease for all of its existing suites, and shall pay $896.16
per diem in regards of all Base Rent and Operating Expenses and Taxes due
for Suite 525.
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c)
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Commencing
on the New Rent Schedule Start Date, the entirety of Tenant’s Premises and
its Lease thereof shall be deemed fully net of all Operating Expenses and
Taxes for the remainder of the Lease Term. In addition to
Monthly Base Rent, Tenant shall be obligated to pay Rent Adjustments and
Rent Adjustment Deposits per the terms of the Lease, and all references to
“Base Year” that appear in the definitions of Rent Adjustments and Rent
Adjustment Deposits, Operating Expenses, Taxes and in Lease Sections
1.1(13) and 4.1 shall no longer apply. There shall be two
exceptions to the above:
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i)
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As
long as it continues only to be used only for storage, Landlord has agreed
that Suite 395 shall not subject to a share of Operating Expenses and
Taxes.
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ii)
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As
it relates to Suites 525, 550, 575 and 580, for the period from the New
Rent Schedule Start Date through October 31, 2009, Landlord has agreed to
fix Tenant’s Rent Adjustments (i.e. fix its share of Operating Expenses
and Taxes due on those suites) at $22,668 per month. Beginning
November 1, 2009 and thereafter through the Lease Term Tenant shall pay
its otherwise-calculated share of Operating Expenses and
Taxes.
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V. PARKING:
As of the
Sixth Amendment Effective Date, Tenant shall be entitled under the Lease to use
a total of up to fifty-four (54) ) unreserved parking stalls in the Terraces
Garage at Landlord’s quoted rates, which number shall not be subject to downward
adjustment due to the termination of either Suites 360 nor
370. Tenant shall have the right twelve (12) of these total parking
spaces be located on the so-called “Amtrak” lot immediately east of the
Building. Landlord reserves the right to relocate those spaces
elsewhere in the event of that site being developed. Further, Tenant
shall have the right five (5) spaces of its total parking allotment
be so-called “premium” spaces located in the parking garage in the ground level
of the Building, for which Tenant shall pay Landlord’s quoted rates
for such premium spaces.
VI. SECURITY
DEPOSIT:
In
consideration of Landlord’s willingness to lease Suite 525 to Tenant, Tenant
shall increase its Security Deposit under the Lease by a total of $27,282.12, as
follows:
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a)
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Within
five (5) business days of the Sixth Amendment Effective Date, Tenant shall
remit to Landlord $12,330.08 in good and collectible funds,
and
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b)
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Tenant
agrees that Landlord shall not return the $14,952.04 Security Deposit
originally applicable to Suite 370 once Tenant’s lease thereon is
terminated per Section II above.
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VII. MISCELLANEOUS:
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a)
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Landlord
and Tenant agree that Section VIII of the Fourth Amendment, relating to
potential relocation by Tenant to EmeryStation East, is
void.
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b)
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Tenant
represents and warrants that it has represented itself in the above
transactions and that no brokerage commission will be due and payable by
Landlord as a result hereof.
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Except
for those terms outlined above, all other terms and conditions of the Lease
shall apply. Except as modified hereby, the Lease is ratified and
confirmed in its entirety.
In
witness hereof, the parties have executed this Fourth Amendment as of the date
noted below.
Dated: August
13, 2008
TENANT: LANDLORD:
NovaBay
Pharmaceuticals,
Inc. Xxxxx
Station Office II, LLC
A
California
Corporation A
California Limited Liability Company
/s/
Xxxxxx
Paulson___________________ /s/
Xxxxxxx K
Robbins________________
Chief
Financial
Officer Managing
Manager
EXHIBIT
A
Space
Plan of Suite 525
