EXHIBIT 10.12
SUBLEASE
THIS SUBLEASE("Sublease"), dated December 17, 2003 (the "Effective Date")
is entered into by and between Extensity, Inc. a Delaware corporation
("Sublandlord"), and BioNovo, a California corporation ("Subtenant").
RECITALS
A. Sublandlord leases certain premises consisting of approximately 1,733
rentable square feet in a building, located at 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxxxx, pursuant to that certain Watergate Office Lease dated January 12,
1998, between EOP-Emeryville Properties L. L. C., a Delaware limited liability
company, as landlord (the "Master Landlord") and Sublandlord, as tenant (as
amended or otherwise modified from time to time, the "Master Lease"), a copy of
which is attached as Exhibit A, as more particularly described therein (the
"Premises"). Capitalized terms used but not defined herein have the same
meanings as they have in the Master Lease.
B. Sublandlord desires to sublease to Subtenant, and Subtenant desires to
sublease from Sublandlord a portion of the Premises consisting of approximately
1,733 rentable square feet, located on the 6 th floor, Suite 675, and more
particularly shown on the layout attached at Exhibit B hereto ("Sublease
Premises") upon the terms and conditions provided for herein.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
contained herein, Sublandlord and Subtenant covenant and agree as follows:
AGREEMENT
1. Sublease Premises. On and subject to the terms and conditions below,
Sublandlord hereby leases to Subtenant, and Subtenant hereby leases from
Sublandlord, the Sublease Premises.
2. Term. This Sublease shall commence on January 1, 2004 or on such later
date that the Subtenant obtains the consent of the Master Landlord (the
"Commencement Date"), and shall expire, June 30, 2004 unless sooner terminated
pursuant to any provision hereof or extended by mutual agreement of the parties.
Subtenant may have possession of the Premises prior to January 1, 2004 upon full
sublease execution and prior approval of the Master Landlord.
3. Possession. If for any reason Sublandlord cannot deliver possession of
the Sublease Premises to Subtenant on or before January 1, 2004, Sublandlord
shall not be subject to any liability therefor, nor shall such failure affect
the validity of this Sublease or the obligations of Subtenant hereunder or
extend the term hereof, provided that no Rent shall be due hereunder until
possession of the Sublease Premises has been delivered to Subtenant. Subtenant
shall also not be subject to any liability in the event that it is unable to
deliver the Sublease Premises due to failure to obtain Master Landlord approval.
4. Rent.
(a) Commencing on the Commencement Date and continuing throughout
the term of this Sublease, Subtenant shall pay monthly rent consisting of Base
Rent and Additional Rent (as defined below) (collectively, "Rent") to
Sublandlord in the following amounts:
(i) Base Rent. Subtenant shall pay to Sublandlord monthly base
rent ("Base Rent") in the amount of $1,733.00. Rent shall be prepaid in the full
amount of $10,398.00 on the Effective Date.
(ii) Additional Rent. In addition to Base Rent, Subtenant
shall pay to Sublandlord Subtenant's Proportionate Share of Operating Costs (as
that term is defined in Section 4.3 of the Master Lease) and all other costs
payable by Sublandlord under the Master Lease relating to the Sublease Premises
(collectively, the "Additional Rent"). Subtenant shall be responsible for
operating expense and other increases over the Base Year of 2004. Additional
Rent shall be payable to Sublandlord within ten (10) business days prior to when
payments are due from Sublandlord pursuant to the Master Lease. Notwithstanding
the foregoing, in the event any amounts payable by Sublandlord to Master
Landlord are (i) due to Subtenant's breach of any provision of the Master Lease
not caused by action or inactions of the Subtenant or (ii) due to Subtenant's
gross negligence or willful misconduct, then such amounts shall not be pro rated
between Sublandlord and Subtenant as set forth above and shall be the sole
responsibility of Subtenant.
(b) If the obligation to pay Rent does not fall on the first day of
a calendar month, then Rent for the first month shall be prorated on a daily
basis based upon a thirty (30) day month. Rent shall be payable to Sublandlord
in lawful money of the United States, in advance, without prior notice, demand,
or offset, on or before the first day of each calendar month during the term
hereof. All Rent shall be paid to Sublandlord at the address specified for
notices to Sublandlord in Section 14, below.
(c) Subtenant recognizes that late payment of any Rent will result
in administrative expenses to Sublandlord, the extent of which additional
expenses are extremely difficult and economically impractical to ascertain.
Subtenant therefore agrees that if any Rent shall remain unpaid five (5) days
after such amounts are due, the amount of such Rent shall be increased by a late
charge to be paid to Sublandlord by Subtenant in an amount equal to ten (10)
percent of the amount of the delinquent Rent.
(d) In the event of any casualty or condemnation affecting the
Sublease Premises, Rent payable by Subtenant shall be abated hereunder, but only
to the extent that Rent under the Master Lease is abated, and Subtenant waives
any right to terminate this Sublease in connection with such casualty or
condemnation except to the extent the Master Lease is also terminated as to the
Premises or any portion thereof.
5. Assignment and Subletting. Subtenant may not assign, sublet, transfer,
pledge, hypothecate or otherwise encumber the Sublease Premises, in whole or in
part, or permit the use or occupancy of the Sublease Premises by anyone other
than Subtenant, unless Subtenant has obtained Sublandlord's consent thereto and
the consent of Master Landlord. Any such Transfer shall be governed by Section
11 of the Master Lease.
6. Master Lease. This Sublease shall be subject and subordinate to all of
the terms and provisions of the Master Lease, and Master Landlord shall have all
rights in respect of the Master Lease and the Premises as set forth therein.
Except for payments of Base Rent and Increased Operating Costs under Section 4
of the Master Lease (which payments shall be made by Sublandlord), and, except
as otherwise provided herein, Subtenant hereby agrees to perform for
Sublandlord's benefit, during the term of this Sublease, all of Sublandlord's
obligations under the Master Lease but only to the extent they relate to the
Sublease Premises which accrue during the term of this Sublease.
7. Condition of Sublease Premises. Subtenant has used due diligence in
inspecting the Sublease Premises and agrees to accept the Sublease Premises in
"as-is" condition and with all faults without any representation or warranty of
any kind or nature whatsoever, or any obligation on the part of Sublandlord to
modify, improve or otherwise prepare the Sublease Premises for Subtenant's
occupancy.
8. Use. Subtenant may use the Sublease Premises only for the purposes as
allowed in the Master Lease, and for no other purpose. Subtenant shall promptly
comply with all applicable statutes, ordinances, rules, regulations, orders,
restrictions of record, and requirements in effect during the term of this
Sublease governing, affecting and regulating the Sublease Premises, including
but not limited to the use thereof. Subtenant shall not use or permit the use of
the Sublease Premises in a manner that will create waste or a nuisance,
interfere with or disturb other tenants in the Building or violate the
provisions of the Master Lease.
9. Parking. Subtenant shall have Subtenant's proportionate share of
parking fights (five parking stalls) as Sublandlord may have in connection with
the Sublease Premises pursuant to the Master Lease.
10. Incorporation of Master Lease.
(a) All of the terms and provisions of the Master Lease, except as
provided in subsection (b) below, are incorporated into and made a part of this
Sublease, and the rights and obligations of the parties under the Master Lease
are hereby imposed upon the parties hereto with respect to the Sublease
Premises, the Sublandlord being substituted for the Landlord in the Master
Lease, the Subtenant being substituted for the Tenant in the Master Lease
provided, however, that the term "Landlord" in the following sections of the
Master Lease shall mean Master Landlord, not Sublandlord: 6, 8.1, and 10.2. It
is further understood that where reference is made in the Master Lease to the
"Premises," the same shall mean the Sublease Premises as defined herein; where
reference is made to the "Commencement Date," the same shall mean the
Commencement Date as defined herein; and where reference is made to the "Lease,"
the same shall mean this Sublease.
(b) The following Paragraphs of the Master Lease are not
incorporated herein: 1.1, 1.2, 2.1, 2.2, 3.1, 3.2, 3.3, 4.1, 4.2, 4.3, 17.1,
17.2, 17.3, 17.6, 17.10, 17.12, 17.13, 17.14.
(c) Subtenant hereby assumes and agrees to perform for Sublandlord's
benefit, during the term of this Sublease, all of Sublandlord's obligations with
respect to the Premises under the Master Lease, except as otherwise provided
herein. Subtenant shall not commit or permit to be committed any act or omission
which violates any term or condition of the Master Lease. Notwithstanding
anything to the contrary contained herein, this Sublease shall be subject and
subordinate to all of the terms of the Master Lease.
11. Insurance. Subtenant shall be responsible for compliance with the
insurance provisions of the Master Lease. Such insurance shall insure the
performance by Subtenant of its indemnification obligations hereunder and shall
name Master Landlord and Sublandlord as additional insureds. All insurance
required under this Sublease shall contain an endorsement requiring thirty (30)
days written notice from the insurance company to Subtenant and Sublandlord
before cancellation or change in the coverage, insureds or amount of any policy.
Subtenant shall provide Sublandlord with certificates of insurance evidencing
such coverage prior to the commencement of this Sublease.
12. Furniture. Furniture is included in the sublease of the Premises.
Sublandlord retains ownership of furniture during the sublease. Any furniture
relocated from storage will be done so at Subtenant's Expense.
13. Default. In addition to defaults contained in the Master Lease,
failure of Subtenant to make any payment of Rent when due hereunder shall
constitute an event of default hereunder. If Subtenant's default causes
Sublandlord to default under the Master Lease, Subtenant shall defend, indemnify
and hold Sublandlord harmless from all damages, costs (including reasonable
attorneys' fees), liability, expenses or claims relating to such default.
14. Notices. The addresses specified in the Master Lease for receipt of
notices to each of the parties are deleted and replaced with the following:
To Sublandlord at: GEAC, INC.
0000 Xxxxxx Xx., Xxxxx 000
Xxxxxxxxxx, XX 00000
To Subtenant at: BIONOVO
After Commencement
Date: At the Sublease Premises
15. Sublandlord's Obligations.
(a) To the extent that the provision of any services or the
performance of any maintenance or any other act respecting the Sublease
Premises, the Premises or Building is the responsibility of Master Landlord
(collectively "Master Landlord Obligations"), upon Subtenant's request,
Sublandlord shall make reasonable efforts to cause Master Landlord to perform
such Master Landlord Obligations, provided, however, that in no event shall
Sublandlord be liable to Subtenant for any liability, loss or damage whatsoever
in the event that Master Landlord should fail to perform the same, nor shall
Subtenant be entitled to withhold the payment of Rent or terminate this
Sublease. It is expressly understood that the services and repairs which are
incorporated herein by reference, including but not limited to the services and
utilities listed in Section 6 or the maintenance and repairs listed in Section
8.1, will in fact be furnished by Master Landlord and not by Sublandlord. In
addition, Sublandlord shall not be liable for any maintenance, restoration
(following casualty or destruction) or repairs in or to the Building or the
Sublease Premises, other than its obligation hereunder to use reasonable efforts
to cause Master Landlord to perform its obligations under the Master Lease.
(b) Except as otherwise provided herein, Sublandlord shall have no
other obligations to Subtenant with respect to the Sublease Premises or the
performance of the Master Landlord Obligations.
16. Early Termination of Sublease. If the Master Lease should terminate
prior to the expiration of this Sublease, Sublandlord shall have no liability to
Subtenant on account of such termination. To the extent that the Master Lease
grants Sublandlord any discretionary fight to terminate the Master Lease,
whether due to casualty, condemnation, or otherwise, Sublandlord shall be
entitled to exercise or not exercise such fight in its complete and absolute
discretion.
17. Consent of Master Landlord and Sublandlord. If Subtenant desires to
take any action which requires the consent or approval of Sublandlord pursuant
to the terms of this Sublease, prior to taking such action, including, without
limitation, making any alterations, then, notwithstanding anything to the
contrary herein, (a) Sublandlord shall have the same rights of approval or
disapproval as Master Landlord has under the Master Lease, and (b) Subtenant
shall not take any such action until it obtains the consent of Sublandlord and
Master Landlord, as may be required under this Sublease or the Master Lease.
This Sublease shall not be effective unless and until any required written
consent of the Master Landlord shall have been obtained.
18. Brokers. Each party hereto represents and warrants that it has dealt
with no broker in connection with this Sublease and the transactions
contemplated herein, except Cornish & Xxxxx Commercial and Aegis Realty
Partners. Each party shall indemnify, protect, defend and hold the other party
harmless from all costs and expenses (including reasonable attorneys' fees)
arising from or relating to a breach of the foregoing representation and
warranty.
19. Surrender of Sublease Premises. Upon the expiration or earlier
termination of this Sublease, Subtenant shall surrender the Sublease Premises in
the condition required under the Master Lease.
20. No Third Party Rights. The benefit of the provisions of this Sublease
is expressly limited to Sublandlord and Subtenant and their respective permitted
successors and assigns. Under no circumstances will any third party be construed
to have any rights as a third party beneficiary with respect to any of said
provisions.
21. Counterparts. This Sublease may be signed in two or more counterparts,
each of which shall be deemed an original and all of which shall constitute one
agreement.
IN WITNESS WHEREOF, the parties have executed this Sublease as of the date
first written above.
SUBLANDLORD: SUBTENANT:
------------ ----------
EXTENSITY, INC. BIONOVO
By: By:
---------------------------- ----------------------------
Name: Name:
-------------------------- --------------------------
Title: Title:
------------------------- -------------------------
CONSENT OF MASTER LANDLORD
EOP-Emeryville Properties L. L. C., a Delaware limited liability company,
the Master Landlord under the Master Lease, hereby consents to the Sublease
attached hereto, and all of the terms and conditions contained therein.
EOP-Emeryville Properties L. L. C.
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
EXHIBIT A
MASTER LEASE
c>
EXHIBIT B
SUBLEASE PREMISES
