EXHIBIT 10.13
LANDLORD CONSENT TO SUBLEASE
This LANDLORD CONSENT TO SUBLEASE ("Consent Agreement") is entered into as
of December 30, 2003 by and among CA-EMERYVILLE PROPERTIES LIMITED PARTNERSHIP,
a Delaware limited partnership ("Landlord"), Extensity, Inc., a Delaware
corporation ("Sublandlord"), and BioNovo, a California corporation
("Subtenant").
RECITALS:
A. Landlord (as successor in interest to Xxxxxxx Properties L.P., a
California limited partnership), as Landlord, and Sublandlord, as tenant,
are parties to that certain lease agreement dated January 12, 1998, as
amended by instruments dated April 28, 1998, October 12, 1998, October 19,
1998, July 28, 1999, August 26, 1999, September 20, 1999, December 18,
1999, March 17, 2000, April 14, 2000, June 19, 2000 and December 12, 2000
(collectively, the "Lease") pursuant to which Landlord has leased to
Sublandlord certain premises containing approximately 60,774 rentable
square feet (the "Premises") the building commonly known as 0000 Xxxxxx
Xxxxxx located at Emeryville, CA (the" Building").
B. Sublandlord and Subtenant have entered into that certain sublease
agreement dated December 17, 2003 attached hereto as Exhibit A (the
"Sublease Agreement") pursuant to which Sublandlord has agreed to sublease
to Subtenant certain premises described as follows: 0000 Xxxxxx Xxxxxx,
Xxxxx 000, containing of approximately 1,733 rentable square feet (the
"Sublet Premises") constituting a part of the Premises.
C. Sublandlord and Subtenant have requested Landlord's consent to the
Sublease Agreement.
D. Landlord has agreed to give such consent upon the terms and conditions
contained in this Agreement.
NOW THEREFORE, in consideration of the foregoing preambles which by this
reference are incorporated herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Landlord hereby
consents to the Sublease Agreement subject to the following terms and
conditions, all of which are hereby acknowledged and agreed to by Sublandlord
and Subtenant:
1. Sublease Agreement. Sublandlord and Subtenant hereby represent that a true
and complete copy of the Sublease Agreement is attached hereto and made a
part hereof as Exhibit A.
2. Representations. Sublandlord hereby represents and warrants that
Sublandlord (i) has full power and authority to sublease the Sublet
Premises to Subtenant, (ii) has not transferred or conveyed its interest
in the Lease to any person or entity collaterally or otherwise, and (iii)
has full power and authority to enter into the Sublease Agreement and this
Consent Agreement. Subtenant hereby represents and warrants that Subtenant
has full power and authority to enter into the Sublease Agreement and this
Consent Agreement.
3. Indemnity and Insurance. Subtenant hereby assumes, with respect to
Landlord, all of the indemnity and insurance obligations of the
Sublandlord under the Lease with respect to the Sublet Premises, provided
that the foregoing shall not be construed as relieving or releasing
Sublandlord from any such obligations.
4. No Release. Nothing contained in the Sublease Agreement or this Consent
Agreement shall be construed as relieving or releasing Sublandlord from
any of its obligations under the Lease, it being expressly understood and
agreed that Sublandlord shall remain liable for such obligations
notwithstanding anything contained in the Sublease Agreement or this
Consent Agreement or any subsequent assignment(s), sublease(s) Or
transfer(s) of the interest of the tenant under the Lease. Sublandlord
shall be responsible for the collection of all rent due it from Subtenant,
and for the performance of all the other terms and conditions of the
Sublease Agreement, it being understood that Landlord is not a party to
the Sublease Agreement and, notwithstanding anything to the contrary
contained in the Sublease Agreement, is not bound by any terms,
provisions, representations or warranties contained in the Sublease
Agreement and is not obligated to Sublandlord or Subtenant for any of the
duties and obligations contained therein.
5. No Transfer. Subtenant shall not further sublease the Sublet Premises,
assign its interest as the Subtenant under the Sublease Agreement or
otherwise transfer its interest in the Sublet Premises or the Sublease
Agreement to any person or entity without the written consent of Landlord,
which Landlord may withhold in its sole discretion.
6. Lease. In no event shall the Sublease Agreement or this Consent Agreement
be construed as granting or conferring upon the Sublandlord or the
Subtenant any greater rights than those contained in the Lease nor shall
there be any diminution of the rights and privileges of the Landlord under
the Lease, nor shall the Lease be deemed modified in any respect. Without
limiting the scope of the preceding sentence, any construction or
alterations performed in or to the Sublet Premises shall be performed with
Lahdlord's prior written approval and in accordance with the terms and
conditions of the Lease.
7. Services. Sublandlord hereby authorizes Subtenant, as agent for
Sublandlord, to obtain services and materials for or related to the Sublet
Premises, and Sublandlord agrees to pay for such services and materials as
additional Rent under the Lease upon written demand from Landlord.
However, as a convenience to Sublandlord, Landlord may xxxx Subtenant
directly for such services and materials, or any portion thereof, in which
event Subtenant shall pay for the services and materials so billed upon
written demand, provided that such billing shall not relieve Sublandlord
from its primary obligation to pay for such services and materials.
8. Atornment. If the Lease or Sublandlord's right to possession thereunder,
terminates for any reason prior to expiration of the Sublease Agreement,
Subtenant agrees, at the election of Landlord, to attom to Landlord upon
the then executory terms and conditions of the Sublease Agreement for the
remainder of the term of the Sublease Agreement. If Landlord does not so
elect, the Sublease Agreement and all rights, of Subtenant in the Sublet
Premises shall terminate upon the date of termination of the Lease or
Sublandlord's Right to possession thereunder.
9. Payments Under the Sublease. If at any time Sublandlord is in default
under the terms of the Lease, Landlord shall have the right to contact
Subtenant and require Subtenant to pay all rent due under the Sublease
Agreement directly to Landlord: until such time as Sublandlord has cured
such default. Subtenant agrees to pay such sums directly to Landlord if
requested by Landlord, and Sublandlord agrees that any such sums paid by
Subtenant shall be deemed applied against any sums owed by Subtenant under
the Sublease Agreement. Any such sums received by Landlord from Subtenant
shall be received by Landlord on behalf of Sublandlord and shall be
applied by Landlord to any sums past due under the Lease, in such order of
priority as required under the Lease or, if the Lease is silent in such
regard, then in such order of priority: as Landlord deems appropriate. The
receipt of such funds by Landlord shall in no manner be deemed to create a
direct lease or sublease between Landlord and Subtenant. If Subtenant
falls to deliver its Sublease payments directly to Landlord as required
herein following receipt of written notice from Landlord as described
above, then Landlord shall have the right to remove any signage of
Subtenant, at Subtenant's cost, located outside the Premises or in the
Building lobby or elsewhere in the Building and to pursue any other rights
or remedies available to Landlord at law or in equity.
10. Sublandlord Notice Address. If Sublandlord is subleasing the entire
Premises or otherwise vacating the Premises, Sublandlord's new address for
notices to Sublandlord under the Lease shall be as follows: Xxx Xxxxxx -
Xxxxx Xxxxx - Xxxxx 000, Xxx Xxxxxxxxx 00000; and if no address is filled
in at the preceding blank (or if a post office box address is used for the
preceding blank), then Landlord may continue to send notices to
Sublandlord at the address(es) provided in, and in accordance with the
terms of the Lease.
11. Authority. Each signatory of this Consent Agreement represents hereby that
he or she has the authority to execute and deliver the same on behalf of
the party hereto for which such signatory is acting.
12. Counterparts. This Consent Agreement may be executed in counterparts and
shall constitute an agreement binding on all parties notwithstanding that
all parties are not signatories to the original or the same counterparties
provided that all parties are furnished a copy or copies thereof
reflecting the signature of all parties.
IN WITNESS WHEREOF, Landlord, Sublandlord and Subtenant have executed this
Consent Agreement as of the date set forth above.
LANDLORD:
CA-EMERYVILLE PROPERTIES LIMITED PARTNERSHIP,
a Delaware limited partnership
By: EOM GP, L.L.C. a Delaware limited liability company,
its general partner
By: Equity Office Management, L.L.C., a Delaware
Limited Liability Company, its nonmember
By:
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Name: Xxxx Xxxxxxxxxx
Title: Senior Vice President - San Francisco Region
SUBLANDLORD:
Extensity,lnc.,
a Delaware corporation
By:
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Name:
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Title:
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SUBTENANT:
BioNovo, a California corporation
By:
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Name:
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Title:
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