THIRD AMENDMENT TO LEASE
Exhibit 10.2
THIRD AMENDMENT TO LEASE
THIS THIRD AMENDMENT (this “Amendment”) is made and entered into as of July 21, 2015, by and between PR 701 GATEWAY, LLC, a Delaware limited liability company (“Landlord”), and PUMA BIOTECHNOLOGY, INC., a Delaware corporation (“Tenant”).
RECITALS
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A. |
Landlord (as successor in interest to DFW III GATEWAY, LLC, a Delaware limited liability company) and Tenant are parties to that certain Office Lease dated May 16, 2012 (the “Original Lease”), which Original Lease has been previously amended by that certain First Amendment to Lease dated as of May 19, 2014 (“First Amendment”) and that certain Second Amendment to Lease dated as of June 10, 2014 (collectively, the “Lease”). Pursuant to the Lease, Landlord has leased to Tenant space currently containing approximately 16,712 rentable square feet (the “Original Leased Premises”) described as Suite Nos. 250 and 275 on the second (2nd) floor of the building located at 70 l Gateway Boulevard, South San Francisco, California (the “Building”). |
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B. |
Tenant and Landlord agree to relocate Tenant from the Original Leased Premises to approximately 29,470 rentable square feet of space described as the entire fifth (5th) floor of the Building and shown on Exhibit A attached hereto (the “Substitution Space”). |
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C. |
The Lease by its terms shall expire on October 31, 2021 (“Prior Termination Date”), and the parties desire to extend the Term, all on the following terms and conditions. |
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Landlord and Tenant agree as follows:
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1. |
Substitution. |
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1.1 |
Effective as of the Substitution Effective Date (hereinafter defined), the Substitution Space is substituted for the Original Leased Premises and, from and after the Substitution Effective Date, the Premises, as defined in the Lease, shall be deemed to mean the Substitution Space containing approximately 29,470 rentable square feet and described as the entire fifth (5th) floor of the Building. |
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1.2 |
The Term for the Substitution Space shall commence on the Substitution Effective Date and, unless sooner terminated pursuant to the terms of the Lease, shall end on the Extended Termination Date (as hereinafter defined). The Substitution Space is subject to all the terms and conditions of the Lease except as expressly modified herein and except that Tenant shall not be entitled to receive any allowances, abatements or other financial concessions granted with respect to the Original Leased Premises unless such concessions are expressly provided for herein with respect to the Substitution Space. Effective as of the Substitution Effective Date, the Lease shall be terminated with respect to the Original Leased Premises, and, unless otherwise specified in this Amendment, “Premises”, as defined in the Lease and as used herein, shall mean the Substitution Space. Tenant shall vacate the Original Leased Premises as of the Substitution Effective Date (such date that Tenant is required to vacate the Original Leased Premises being referred to herein as the “Original Leased Premises Vacation Date”) and return the same to Landlord in “broom clean” condition and otherwise in accordance with the terms and conditions of the Lease. |
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2. |
Substitution Effective Date. |
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2.1 |
The “Substitution Effective Date” shall be the earlier to occur of (i) ninety (90) days following the Substitution Space Delivery Date (defined below), or (ii) upon Tenant's occupancy of the Substitution Space for the purpose of conducting business therein. |
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2.2 |
The “Substitution Space Delivery Date” shall be the date which Landlord delivers the Substitution Space to Tenant, which is anticipated to be January 1, 2016. The Substitution Space Delivery Date shall be delayed to the extent that Landlord fails to deliver possession of the Substitution Space as a result of holding over by prior occupants. Any such delay in the Substitution Space Delivery Date shall not subject Landlord to any liability for any loss or damage resulting therefrom. |
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3. |
Extension. The Term of the Lease is extended through the last day of the one hundred twentieth (120th) full calendar month following the Substitution Effective Date (“Extended Termination Date”), unless sooner terminated in accordance with the terms of the Lease. That portion of the Term commencing the day immediately following the Prior Termination Date (“Extension Date”) and ending on the Extended Termination Date shall be referred to herein as the “Extended Term”. |
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4. |
Minimum Monthly Rent. As of the Substitution Effective Date, the schedule of Minimum Monthly Rent payable with respect to the Substitution Space during the remainder of the current Term and the Extended Term is the following: |
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Period (following the Substitution Effective Date) |
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Rentable Square Footage |
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Monthly Rate Per Square Foot |
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Minimum Monthly Rent |
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Substitution Effective Date- Month 12 |
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29,470 |
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$ |
3.45 |
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$ |
101,671.50 |
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Month 13 - Month 24 |
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29,470 |
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$ |
3.55 |
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$ |
104,618.50 |
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Month 25 - Month 36 |
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29,470 |
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$ |
3.66 |
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$ |
107,860.20 |
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Month 37- Month 48 |
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29,470 |
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$ |
3.77 |
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$ |
111,101.90 |
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Month 49 - Month 60 |
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29,470 |
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$ |
3.88 |
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$ |
114,343.60 |
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Month 61 - Month 72 |
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29,470 |
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$ |
4.00 |
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$ |
117,880.00 |
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Month 73 – Month 84 |
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29,470 |
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$ |
4.12 |
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$ |
121,416.40 |
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Month 85 - Month 96 |
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29,470 |
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$ |
4.24 |
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$ |
124,952.80 |
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Month 97 - Month 108 |
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29,470 |
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$ |
4.37 |
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$ |
128,783.90 |
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Month 109 - Month 120 |
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29,470 |
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$ |
4.50 |
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$ |
132,615.00 |
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All such Minimum Monthly Rent shall be payable by Tenant in accordance with the terms of the Lease, as amended hereby; provided that concurrently with Tenant's execution and delivery of this Amendment to Landlord, Tenant shall pay to Landlord the Minimum Monthly Rent with respect to the Substitution Space (the “Prepaid Rent”) payable for the fifth (5th) full calendar month following the Substitution Effective Date. Notwithstanding anything in the Lease, as amended hereby, to the contrary, so long as Tenant is not in default under the Lease, as amended hereby, Tenant shall be entitled to an abatement of Minimum Monthly Rent with respect to the Substitution Space in the monthly amount of $101,671.50 for the first four (4) full calendar months following the Substitution Effective Date. The maximum total amount of Minimum Monthly Rent abated with respect to the Substitution Space in accordance with the foregoing shall equal $406,686.00 (the “Abated Minimum Monthly Rent”). If Tenant defaults under the Lease, as amended hereby, at any time during the Term (as extended) and fails to cure such default within any applicable cure period under the Lease, then all Abated Minimum Monthly Rent shall immediately become due and payable. Only Minimum Monthly Rent shall be abated pursuant to this Section, as more particularly described herein, and all other rent and other costs and charges specified in the Lease, as amended hereby, shall remain as due and payable pursuant to the provisions of the Lease, as amended hereby.
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5. |
Letter of Credit. Landlord is currently holding the sum of $150,000.00 (the “Existing Security Deposit”) as a security deposit pursuant to the terms of the Lease. Concurrent with Tenant's execution and delivery of this Amendment to Landlord, and in addition to the Existing Security Deposit, Tenant shall deliver to Landlord, as collateral for the full performance by Tenant of all of its obligations under the Lease, as amended hereby, and for all losses and damages Landlord may suffer as a result of Tenant's failure to comply with one or more provisions of the Lease, as amended hereby, including, but not limited to, any post lease termination damages under Section 1951.2 of the California Civil Code, an Irrevocable Standby Letter of Credit (the “Letter of Credit”) in the amount of One Million Four Hundred Forty-One Thousand Three Hundred Eighty and No/Dollars ($1,441,380.00). The following terms and conditions shall apply to the Letter of Credit: |
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5.1 |
The Letter of Credit shall be in favor of Landlord, shall be issued by a bank acceptable to Landlord with a Standard & Poors rating of “A” or better, shall comply with all of the terms and conditions of this Section 5 and shall otherwise be in the form acceptable to Landlord. |
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Landlord; provided that the issuing bank shall have the right not to renew the Letter of Credit by giving written notice to Landlord not less than sixty (60) days prior to the expiration of the then current term of the Letter of Credit that it does not intend to renew the Letter of Credit. Tenant understands that the election by the issuing bank not to renew the Letter of Credit shall not, in any event, diminish the obligation of Tenant to deposit the Security Deposit, if any, or maintain such an irrevocable Letter of Credit in favor of Landlord through the LOC Expiration Date. |
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5.3 |
Landlord, or its then authorized representative, upon Tenant's failure to comply with one or more provisions of the Lease, as amended hereby, or as otherwise specifically agreed by Landlord and Tenant pursuant to the Lease or any amendment hereof, without prejudice to any other remedy provided in the Lease or by applicable laws, shall have the right from time to time to make one or more draws on the Letter of Credit and use all or part of the proceeds in accordance with Section 5.4 below. In addition, if Tenant fails to furnish a renewal or replacement letter of credit complying with all of the provisions of this Section 5 at least sixty (60) days prior to the stated expiration date of the Letter of Credit then held by Landlord, Landlord may draw upon such Letter of Credit and hold the proceeds thereof (and such proceeds need not be segregated) in accordance with the terms of this Section 5. Funds may be drawn down on the Letter of Credit upon presentation to the issuing bank of Landlord's (or Landlord's then authorized representative's) certification that Landlord is entitled to such funds pursuant to the Lease and/or any amendment to the Lease or any other agreement between the parties pertaining the Lease, and otherwise in a form set forth in the Letter of Credit approved by Landlord. |
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5.4 |
Tenant shall have the right to reduce the amount of the Letter of Credit in accordance with this Section 5.4 if (a) Tenant has timely paid all Rent due under the Lease, as amended hereby, during the twelve (12) month period immediately preceding the effective date of any reduction of the Letter of Credit, and (b) Tenant either (i) delivers to Landlord written documentation reasonably satisfactory evidencing that Tenant has received formal written approval from the U.S. Food and Drug Administration to market its lead drug candidate Neratinib to the public (the “FDA Reduction Condition”); or (ii) provides to Landlord Tenant's Financial Information (defined below) reflecting four (4) consecutive quarters of positive Earnings Before Interest, Taxes, Depreciation and Amortization (“EBITDA”) equal to or greater than $200,000,000.00 (the “EBITDA Reduction Condition”). In the event that Tenant fully satisfies the condition set forth in clause (a) above (the “General Reduction Condition”) and the FDA Reduction Condition, then Tenant shall have the right to reduce the amount of the Letter of Credit by $500,000.00 effective as of the third (3rd) anniversary of the Substitution Effective Date (“Reduction Effective Date”). In addition, in the event that Tenant fully satisfies the General Reduction Condition and the EBITDA Reduction Condition, Tenant shall have the right to reduce the amount of the Letter of Credit by $500,000.00 effective as the Reduction Effective Date. By way of example, if Tenant meets the General Reduction Condition and the FDA Reduction Condition, but does not meet the EBITDA Reduction Condition, Tenant shall have the right to reduce the Letter of Credit by $500,000.00 effective as the Reduction Effective Date. However, if Tenant meets the General Reduction Condition, the FDA Reduction Condition and the EBITDA Reduction Condition, Tenant shall have the right to reduce the Letter of Credit by $1,000,000.00 effective as of the Reduction Effective Date. If Tenant does not have the right to reduce the Letter of Credit effective as of the Reduction Effective Date due to Tenant's failure to meet the General Reduction Condition, the FDA Reduction Condition and/or the EBITDA Reduction Condition, the Reduction Effective Date shall be tolled for a period of twelve (12) months and Tenant shall once again have the right to satisfy the FDA Reduction Condition and/or the EBITDA Reduction Condition and reduce the Letter of Credit as of the next succeeding anniversary of the Substitution Effective Date; provided, however, in no event shall Tenant have the right to reduce the Letter of Credit by more than $1,000,000.00. If Tenant is entitled to a reduction in the Letter of Credit, Tenant shall provide Landlord with written notice requesting that the Letter of Credit be reduced as provided above (the “Reduction Notice”). If Tenant is requesting a reduction of the Letter of Credit based on satisfaction of the EBITDA Reduction Condition, concurrent with Tenant's delivery of the Reduction Notice, Tenant shall deliver to Landlord Tenant's financial statements prepared in accordance with generally accepted accounting principles and certified by an officer of Tenant as being a true and correct copy of Tenant's most recent audited financial statements (as audited by a nationally recognized public accounting firm reasonably acceptable to Landlord), and any other financial information requested by Landlord, evidencing Tenant's full satisfaction of the EBITDA Reduction Condition (“Tenant's Financial Information”). If Tenant provides Landlord with a Reduction Notice, and Tenant is entitled to reduce the Letter of Credit as provided herein, any reduction in the Letter of Credit amount shall be accomplished by Tenant providing Landlord with an amendment to the Letter of Credit or a substitute Letter of Credit in the reduced amount, which substitute Letter of Credit shall comply with the requirements of this Section 5. |
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Landlord's sole and separate property (and not Tenant's property or the property of Tenant's bankruptcy estate) and Landlord may immediately upon any draw (and without notice to Tenant) apply or offset the proceeds of the Letter of Credit: (a) against any rent or other amounts payable by Tenant under the Lease, as amended hereby, that is not paid when due; (b) against all losses and damages that Landlord has suffered or that Landlord reasonably estimates that it may suffer as a result of Tenant's failure to comply with one or more provisions of the Lease, as amended hereby, including any damages arising under Section 1951.2 of the California Civil Code following termination of the Lease; (c) against any costs incurred by Landlord in connection with the Lease (including attorneys' fees); and (d) against any other amount that Landlord may spend or become obligated to spend by reason of Tenant's default. Provided Tenant has performed all of its obligations under the Lease, as amended hereby, Landlord agrees to pay to Tenant within sixty (60) days after the LOC Expiration Date the amount of any proceeds of the Letter of Credit received by Landlord and not applied as allowed above; provided, that if prior to the LOC Expiration Date a voluntary petition is filed by Tenant or any guarantor, or an involuntary petition is filed against Tenant or any guarantor by any of Tenant's or guarantor's creditors, under the Federal Bankruptcy Code, then Landlord shall not be obligated to make such payment in the amount of the unused Letter of Credit proceeds until either all preference issues relating to payments under the Lease have been resolved in such bankruptcy or reorganization case or such bankruptcy or reorganization case has been dismissed, in each case pursuant to a final court order not subject to appeal or any stay pending appeal. |
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5.6 |
If, as result of any application or use by Landlord of all or any part of the Letter of Credit, the amount of the Letter of Credit shall be less than the amount set forth in this Section 5, Tenant shall, within five (5) days thereafter, provide Landlord with additional letter(s) of credit in an amount equal to the deficiency (or a replacement letter of credit in the total amount required pursuant to this Section 5), and any such additional (or replacement) letter of credit shall comply with all of the provisions of this Section 5, and if Tenant fails to comply with the foregoing, notwithstanding anything to the contrary contained in the Lease, as amended hereby, the same shall constitute an incurable Event of Default by Tenant. Tenant further covenants and warrants that it will neither assign nor encumber the Letter of Credit or any part thereof and that neither Landlord nor its successors or assigns will be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance. |
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5.7 |
Landlord may, at any time and without notice to Tenant and without first obtaining Tenant's consent thereto, transfer all or any portion of its interest in and to the Letter of Credit to another party, person or entity, including Landlord's mortgagee and/or to have the Letter of Credit reissued in the name of Landlord's mortgagee. If Landlord transfers its interest in the Building and transfers the Letter of Credit (or any proceeds thereof then held by Landlord) in whole or in part to the transferee, Landlord shall, without any further agreement between the parties hereto, thereupon be released by Tenant from all liability therefor. The provisions hereof shall apply to every transfer or assignment of all or any part of the Letter of Credit to a new landlord. In connection with any such transfer of the Letter of Credit by Landlord, Tenant shall, at Tenant's sole cost and expense, execute and submit to the issuer of the Letter of Credit such applications, documents and instruments as may be necessary to effectuate such transfer. Tenant shall be responsible for paying the issuer's transfer and processing fees in connection with any transfer of the Letter of Credit and, if Landlord advances any such fees (without having any obligation to do so), Tenant shall reimburse Landlord for any such transfer or processing fees within ten (10) days after Landlord's written request therefor. |
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5.8 |
If the Letter of Credit expires earlier than the LOC Expiration Date, or the issuing bank notifies Landlord that it shall not renew the Letter of Credit, Landlord shall accept a renewal thereof or substitute letter of credit (such renewal or substitute Letter of Credit to be in effect not later than sixty (60) days prior to the expiration thereof), irrevocable and automatically renewable through the LOC Expiration Date upon the same terms as the expiring Letter of Credit or upon such other terms as may be acceptable to Landlord. However, if (a) the Letter of Credit is not timely renewed, or (b) a substitute Letter of Credit, complying with all of the terms and conditions of this Section 5 is not timely received, Landlord may present such Letter of Credit to the issuing bank, and the entire sum so obtained shall be paid to Landlord, to be held by Landlord in accordance with Article 8 of the Original Lease. Notwithstanding the foregoing, Landlord shall be entitled to receive from Tenant all attorneys' fees and costs incurred in connection with the review of any proposed substitute Letter of Credit pursuant to this Section. |
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of Section 1950.7 of the California Civil Code and all other provisions of applicable laws, now or hereafter in effect, which (i) establish the time frame by which Landlord must refund a security deposit under a lease, and/or (ii) provide that Landlord may claim from the security deposit only those sums reasonably necessary to remedy defaults in the payment of rent, to repair damage caused by Tenant or to clean the Premises, it being agreed that Landlord may, in addition, claim those sums specified above in this Section 5 and/or those sums reasonably necessary to compensate Landlord for any loss or damage caused by Tenant's breach of the Lease, as amended hereby, or the acts or omission of Tenant or any of Tenant's Parties, including my damages Landlord suffers following termination of the Lease. |
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5.10 |
Notwithstanding anything to the contrary contained in the Lease, as amended hereby, in the event that at any time the financial institution which issues said Letter of Credit is declared insolvent by the FDIC or is closed for any reason, Tenant must immediately provide a substitute letter of credit that satisfies the requirements of the Lease hereby from a financial institution acceptable to Landlord, in Landlord's sole discretion. |
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6. |
Tenant's Proportionate Share. For the period commencing with the Substitution Effective Date and ending on the Extended Termination Date, Tenant's Proportionate Share for the Substitution Space is 17.31%. |
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7. |
Additional Rent. For the period commencing with the Substitution Effective Date and ending on the Extended Termination Date, Tenant shall pay all additional rent payable under the Lease, including Tenant's Proportionate Share of Operating Costs, Taxes and Insurance Costs applicable to the Substitution Space in accordance with the terms of the Lease; provided, however, during such period, the Base Year for the computation of Tenant's Proportionate Share of Operating Costs, Taxes and Insurance Costs applicable to the Substitution Space is 2016. |
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8. |
Parking Allocation. As of the Substitution Effective Date, Tenant's Parking Allocation set forth in Section 1.17 of the Original Lease, as amended by Section 8 of the First Amendment, shall be ninety-seven (97) parking spaces. |
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9. |
Improvements to Substitution Space. |
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9.1 |
Condition of Substitution Space. Tenant has inspected the Substitution Space and agrees to accept the same “as is” without any agreements, representations, understandings or obligations on the part of Landlord to perform any alterations, repairs or improvements, except as may be expressly provided otherwise in this Amendment. Tenant hereby acknowledges and agrees that Landlord has fulfilled all of its obligations pursuant to Exhibit C of the Original Lease, Section 7 of the First Amendment and Exhibit B to the First Amendment. |
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9.2 |
Responsibility for Improvements to Substitution Space. Tenant may perform improvements to the Substitution Space in accordance with the terms of Exhibit B attached hereto (the “Tenant Alterations”), and Tenant shall be entitled to an improvement allowance in connection with such work as more fully described in Exhibit B. |
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10. |
Early Access to Substitution Space. Subject to the terms of this Section 10 and provided that this Amendment has been fully executed by all parties and Tenant has delivered all Prepaid Rent, the Letter of Credit, and insurance certificates required hereunder, Landlord grants Tenant the right to enter the Substitution Space, at Tenant's sole risk, upon the Substitution Space Delivery Date, solely for the purpose of installing telecommunications and data cabling, equipment, furnishings and other personalty and for performing the Tenant Alterations. Such possession prior to the Substitution Effective Date shall be subject to all of the terms and conditions of the Lease, as amended hereby, except that Tenant shall not be required to pay Minimum Monthly Rent with respect to the period of time prior to the Substitution Effective Date during which Tenant occupies the Substitution Space solely for such purposes. However, Tenant shall be liable for any utilities or special services provided to Tenant with respect to the Substitution Space during such period. Notwithstanding the foregoing, if Tenant takes possession of the Substitution Space before the Substitution Effective Date for any purpose other than as expressly provided in this Section, such possession shall be subject to the terms and conditions of the Lease, as amended hereby, and Tenant shall pay Minimum Monthly Rent and any other charges payable hereunder with respect to the Substitution Space to Landlord for each day of possession before the Substitution Effective Date. |
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11. |
Holding Over. If Tenant continues to occupy the Original Leased Premises after the Original |
Leased Premises Vacation Date, occupancy of the Original Leased Premises subsequent to the
Original Leased Premises Vacation Date shall be that of a tenancy at sufferance and in no event for month-to-month or year-to-year, but Tenant shall, throughout the entire holdover period, be subject to all the terms and provisions of the Lease and shall pay for its use and occupancy an amount (on a per month basis without reduction for any partial months during any such holdover) equal to twice the sum of the Minimum Monthly Rent and Tenant's Proportionate Share of Operating Costs, Taxes and Insurance Costs due for the period immediately preceding such holding over, provided that in no event shall
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Minimum Monthly Rent and Tenant's Proportionate Share of Operating Costs, Taxes and Insurance Costs during the holdover period be less than the fair market rental for the Original Leased Premises. No holding over by Tenant in the Original Leased Premises or payments of money by Tenant to Landlord after the Original Leased Premises Vacation Date shall be construed to prevent Landlord from recovery of immediate possession of the Original Leased Premises by summary proceedings or otherwise. In addition to the obligation to pay the amounts set forth above during any such holdover period, Tenant also shall be liable to Landlord for all damage, including any consequential damage, which Landlord may suffer by reason of any holding over by Tenant in the Original Leased Premises, and Tenant shall indemnify Landlord against any and all claims made by any other tenant or prospective tenant against Landlord for delay by Landlord in delivering possession of the Original Leased Premises to such other tenant or prospective tenant.
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12. |
Temporary Space. |
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12.1 |
Tenant shall have the option to lease as temporary space certain premises containing approximately 7,017 rentable square feet described as Suite 100 and located on the first (1st) floor of the Building (the “Temporary Space”) for a term (the “Temporary Space Term”) commencing on the Substitution Space Delivery Date and continuing though and including the Substitution Effective Date (such date being referred to herein as the “Temporary Space Expiration Date”). If Tenant elects to lease the Temporary Space, Tenant must provide Landlord notice of its election (the “Temporary Space Notice”) on or before September 30, 2015. |
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12.2 |
During the period of Tenant's use of the Temporary Space, Tenant shall pay Minimum Monthly Rent for the Temporary Space in an amount equal to $21,051.00 per month. During the period of Tenant's use of the Temporary Space, Tenant shall not be required to pay: (i) Tenant's Proportionate Share of Operating Costs, Taxes and Insurance Costs as all are related to the Temporary Space (but in any event Tenant shall be responsible for all other rents due hereunder). Further, Tenant shall not be entitled to receive any allowances, abatement or other financial concession granted with respect to the Original Leased Premises or Substitution Space as to the Temporary Space. However, except as otherwise provided herein, the Temporary Space shall be subject to all of the terms and conditions of the Lease, including, without limitation, the insurance and indemnity provisions hereof. |
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12.3 |
Tenant has inspected the Temporary Space and agrees to accept the same “as-is” without any agreements, representations, understandings or obligations on the part of Landlord to perform any alterations, repairs or improvements. Tenant shall vacate the Temporary Space on or prior to the Temporary Space Expiration Date and deliver up the Temporary Space to Landlord in as good condition as the Temporary Space was delivered to Tenant, ordinary wear and tear excepted. Tenant shall have no right to hold over or otherwise occupy the Temporary Space at any time following the expiration or earlier termination of the Temporary Space Term and in the event of any such holdover, Landlord shall immediately be entitled to institute dispossessory proceedings to recover possession of the Temporary Space, without first providing notice thereof to Tenant. In the event of holding over by Tenant after expiration or termination of the Temporary Space Term without the written authorization of Landlord, Section 33.2 of the Original Lease shall apply and the Minimum Monthly Rent rate applicable to determine the holdover rate shall be the rate then in effect for the Premises. During any such holdover, Tenant's occupancy of the Temporary Space shall be deemed that of a tenant at sufferance, and in no event, during the Temporary Space Term or during any holdover by Tenant, shall Tenant be determined to be a tenant-at-will under applicable law. While Tenant is occupying the Temporary Space, Landlord or Landlord's authorized agents shall be entitled to enter the Temporary Space pursuant to the terms and conditions contained in Section 22.1 of the Original Lease; provided, however, that (i) Landlord may, subject to Section 22.1 of the Original Lease, display the Temporary Space to prospective tenants during regular business hours, and (ii) Landlord's restoration obligations following damage caused by a casualty as described in Article 19 of the Original Lease shall in no event apply to any Temporary Space. |
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12.4 |
If Tenant timely elects to lease the Temporary Space, Tenant shall, at Landlord's request, execute and deliver a memorandum agreement setting forth the actual Temporary Space Effective Date and other appropriate terms. |
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13. |
Other Pertinent Provisions. Landlord and Tenant agree that, effective as of the date of this Amendment (unless different effective date(s) is/are specifically referenced in this Section), the Lease shall be amended in the following additional respects: |
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13.1 |
Landlord's Address. Landlord's Notice Address set forth in Section 1.2 of the Original Lease, is hereby deleted in its entirety and is replaced with the following: |
“PR 701 Gateway, LLC
c/o Jones Xxxx LaSalle
Xxx Xxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
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Attention: Xxxx Xxxxxxxxx, Regional Manager
Telephone No.: (000) 000-0000
Email:
and:
PR 701 Gateway, LLC
c/o Jones Xxxx LaSalle
000 X. Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx
Attention: General Counsel - Americas
Telecopy No.: (000) 000-0000
With a copy to:
PR 701 Gateway, LLC
c/o Prudential Real Estate Investors
Four Xxxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxx, Vice President
Telephone: (000) 000-0000
Email: xxxxxxx.xxxx@xxxxxxxxxx.xxx
and a copy to:
PR 701 Gateway, LLC
c/o Prudential Real Estate Investors
0 Xxxxxxx Xxxxx
Xxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxxxx Xxxxxx, Esq.
Telephone: (000) 000-0000
Email: xxxxxxx.xxxxxx@xxxxxxxxxx.xxx”
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13.2 |
Landlord's Address for Payment of Rent. Notwithstanding anything to the contrary contained in Section 5.1 of the Original Lease, all rent due under the Lease shall be made payable by Tenant to Landlord at the following address: |
If paying by check:
XX Xxxxxx Chase
0000 Xxxxx Xxxxxx Xxxxx, Xxxxxxxx #0
Xxxxx 000
Los Angeles, California 90065
Lockbox No. ******
If paying by wire/ACH:
Controlled Disbursement Routing No.: *********
ABA for Wire: *********
ABA for ACH: *********
Deposit Routing: *********
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13.3 |
Directory and Premises Signage. Landlord shall provide Tenant with Building standard directory signage on the Building's main lobby directory and a Building standard tenant identification sign at the entry of the Substitution Space. Such signage (and any replacement or modification thereof) shall consist of Building standard materials and shall comply with Landlord's then current Building specifications. Any required maintenance, repair or changes (which changes shall be subject to Landlord's prior written approval) to such signage shall be performed by Landlord at Tenant's sole cost and expense, which costs shall paid to Landlord within five (5) days of Landlord's demand. At Landlord's option, upon the expiration or earlier termination of the Lease, Tenant shall, at Tenant's sole cost and expense, remove any such signage and repair any damage to the Building caused by such signage |
13.4Building Signage.
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shall not be illuminated. Such right to the Building Signage is subject to the following terms and conditions: (a) Tenant shall submit plans and drawings for the Building Signage to Landlord and to the City of South San Francisco and to any other public authorities having jurisdiction and shall obtain written approval from Landlord and each such jurisdiction prior to installation, and shall fully comply with all applicable Regulations; (b) Tenant shall, at Tenant's sole cost and expense, design, construct and install the Building Signage; (c) the size, color and design of the Building Signage shall be subject to Landlord's prior written approval; and (d) Tenant shall maintain the Building Signage in good condition and repair, and all costs of maintenance and repair shall be borne by Tenant. Maintenance shall include, without limitation, cleaning. Notwithstanding the foregoing, Tenant shall not be liable for any fee in connection with Tenant's right to display the Building Signage in accordance with the Lease. At Landlord's option, Tenant's right to the Building Signage may be revoked and terminated upon occurrence of any of the following events: (i) Tenant shall be in default under the Lease beyond any applicable cure period; (ii) Tenant occupies less than a full floor within the Building, (iii) Tenant subleases more than 8,000 rentable square feet of the Substitution Space; or (iii) the Lease shall terminate or otherwise no longer be in effect. |
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13.4.2 |
Upon the expiration or earlier termination of the Lease or at such other time that Tenant's signage rights are terminated pursuant to the terms hereof, if Tenant· fails to remove the Building Signage and repair the Building in accordance with the terms of the Lease, Landlord shall cause the Building Signage to be removed from the Building and the Building to be repaired and restored to the condition which existed prior to the installation of the Building Signage (including, if necessary, the replacement of any precast concrete panels), all at the sole cost and expense of Tenant and otherwise in accordance with the Lease, without further notice from Landlord. Notwithstanding anything to the contrary contained in the Lease, Tenant shall pay all costs and expenses for such removal and restoration within five (5) business days following delivery of an invoice therefor. The rights provided in this Section 13.3 shall be non-transferable unless otherwise agreed by Landlord in writing in its sole discretion. |
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13.5 |
Option to Extend. The Option to Extend described in Exhibit “F” to the Original Lease shall be in effect during the Extended Term; provided, however, (i) all references in Exhibit “F” to “Term” are hereby amended to be “Extended Term”, and (ii) the first sentence of Section 2 of “Exhibit F” is amended so that Tenant must give Landlord the Extension Option Notice at least three hundred sixty five (365) days, but not more than four hundred fifty (450) days, prior to the expiration of the Extended Term. |
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13.6 |
Tenant's Insurance. Tenant's insurance required under the Lease, as amended hereby, shall include the Substitution Space. Tenant shall provide Landlord with a certificate of insurance evidencing Tenant's insurance upon delivery of this Amendment, executed by Tenant to Landlord, and thereafter as necessary to assure that Landlord always has current certificates evidencing Tenant's insurance. |
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13.7 |
24/7 Access. Tenant shall have access to the Building and the Premises for Tenant and its employees 24 hours per day/7 days per week, subject to the terms of the Lease and such security or monitoring systems as Landlord may reasonably impose, including, without limitation, sign-in procedures and/or presentation of identification cards to the extent applicable. |
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14. |
Miscellaneous. |
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14.1 |
This Amendment, including Exhibit A (Outline and Location of Substitution Space), Exhibit B (Tenant Alterations) and Exhibit C (Substitution Effective Date Memorandum) attached hereto, sets forth the entire agreement between the parties with respect to the matters set forth herein. There have been no additional oral or written representations or agreements. Under no circumstances shall Tenant be entitled to any rent abatement, improvement allowance, leasehold improvements, or other work to the Premises, or any similar economic incentives that may have been provided Tenant in connection with entering into the Lease, unless specifically set forth in this Amendment. |
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14.2 |
Except as herein modified or amended, the provisions, conditions and terms of the Lease shall remain unchanged and in full force and effect. In the case of any inconsistency between the provisions of the Lease and this Amendment, the provisions of this Amendment shall govern and control. The capitalized terms used in this Amendment shall have the same definitions as set forth in the Lease to the extent that such capitalized terms are defined therein and not redefined in this Amendment. |
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14.3 |
Submission of this Amendment by Landlord is not an offer to enter into this Amendment but rather is a solicitation for such an offer by Tenant. Landlord shall not be bound by this Amendment until Landlord has executed and delivered the same to Tenant. |
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14.5 |
Each signatory of this Amendment 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. |
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14.6 |
Tenant hereby represents, warrants and covenants to Landlord that, as of the date hereof and throughout the Term, it is not (i) an “employee benefit plan” as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), that is subject to Title I of ERISA, (ii) a “plan” as defined in Section 4975(e)(1) of the Internal Revenue Code of 1986, as amended (the “Code”), that is subject to Section 4975 of the Code, or (iii) an entity deemed to hold “plan assets” of any such employee benefit plan or plan. In addition, Tenant represents, warrants and covenants to Landlord that it is not a “governmental plan” as defined in Section 3(32) of ERISA and is not subject to State statutes regulating investments of and fiduciary obligations with respect to government plans which would be violated by the transactions contemplated by the Lease, as amended hereby. |
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14.7 |
Each signatory of this Amendment 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. Tenant represents and warrants that Tenant is not, and shall not during the Term, as the same may be extended, become, a person or entity with whom Landlord is restricted from doing business under the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, H. R. 3162, Public Law 107-56 (commonly known as the “USA Patriot Act”) and Executive Order Number 13224 on Terrorism Financing, effective September 24, 2001 and regulations promulgated pursuant thereto (collectively, “Anti-Terrorism Laws”), including without limitation persons and entities named on the Office of Foreign Asset Control Specially Designated Nationals and Blocked Persons List (collectively, “Prohibited Persons”). Tenant is not currently engaged in any transactions or dealings, or otherwise associated with, any Prohibited Persons in connection with the use or occupancy of the Premises or Building. Tenant will not, during the Term of the Lease, as the same may be extended, engage in any transactions or dealings, or be otherwise associated with, any Prohibited Persons in connection with the use or occupancy of the Premises or Building. If at any time after the date hereof Tenant becomes a Prohibited Person, then Tenant shall notify Landlord within five (5) business days after becoming aware of such designation. If Tenant breaches any representation or covenant set forth in this Section, or Tenant hereafter becomes a Prohibited Person, then in any such event, same shall constitute a default under the Lease, entitling Landlord to any and all remedies under the Lease or at law or in equity (including the right to terminate the Lease without affording Tenant any notice or cure period that may be provided in the Lease). |
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14.8 |
Pursuant to California Civil Code Section 1938, Landlord hereby notifies Tenant that as of the date of this Amendment, the Premises have not undergone inspection by a “Certified Access Specialist” to determine whether the Premises meet all applicable construction-related accessibility standards under California Civil Code Section 55.53. To allow for compliance with building performance benchmarking and disclosure regulations, and to facilitate implementation of sustainable improvements to the Building, Tenant shall: (a) retain copies of its “utility data”, which includes, but is not limited to, Tenant's utility bills and invoices pertaining to Tenant's energy, water, and trash usage at the Building during the Term (as the same may be further extended), and (b) upon request, provide Landlord with copies of such “utility data”. Tenant further agrees, upon Landlord's request, to execute utility release forms provided by the applicable utility or municipality to expedite the data collection process. |
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14.9 |
Redress for any claim against Landlord under the Lease and this Amendment shall be limited to and enforceable only against and to the extent of Landlord's interest in the Building. The obligations of Landlord under the Lease are not intended to and shall not be personally binding on, nor shall any resort be had to the private properties of, any of its trustees or board of directors and officers, as the case may be, its investment manager, the general partners thereof, or any beneficiaries, stockholders, employees, or agents of Landlord or the investment manager, and in no case shall Landlord be liable to Tenant hereunder for any lost profits, damage to business, or any form of special, indirect or consequential damage. |
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IN WITNESS WHEREOF, Landlord and Tenant have entered into and executed this Amendment as of the date first written above.
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LANDLORD: |
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TENANT: |
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PR 701 GATEWAY, LLC, a Delaware limited liability company |
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a Delaware corporation |
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By: |
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PRISA LHC, LLC, a Delaware limited liability company |
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Its: |
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Sole Member |
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By: |
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/s/ Xxxxxxx Xxxx |
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By: |
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/s/ Xxxxxxx X. Xxxxx |
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Name: |
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Xxxxxxx Xxxx |
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Name: |
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Xxxxxxx X. Xxxxx |
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Title: |
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Vice President |
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Title: |
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SVP Finance |
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Date: |
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31 July, 2015 |
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Date: |
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28 July, 2015 |
10
EXHIBIT A - OUTLINE AND LOCATION OF SUBSTITUTION SPACE
attached to and made a part of the Amendment dated as of July 21, 2015,
between PR 701 GATEWAY, LLC, a Delaware limited liability company,
as Landlord and PUMA BIOTECHNOLOGY, INC., a Delaware corporation, as Tenant
Exhibit A is intended only to show the general layout of the Substitution Space as of the beginning of the Substitution Effective Date. It does not in any way supersede any of Landlord's rights set forth in the Lease with respect to arrangements and/or locations of public parts of the Building and changes in such arrangements and/or locations. It is not to be scaled; any measurements or distances shown should be taken as approximate.
A-1
EXHIBIT B – TENANT ALTERATIONS
attached to and made a part of the Amendment dated as of July 21, 2015, between
PR 701 GATEWAY, LLC, a Delaware limited liability company, as Landlord and
PUMA BIOTECHNOLOGY, INC., a Delaware corporation, as Tenant
1. Tenant, following the delivery of the Substitution Space by Landlord and the full and final execution and delivery of the Amendment to which this Exhibit B is attached and all Prepaid Rent, the Letter of Credit and insurance certificates required under the Amendment, shall have the right to perform alterations and improvements in the Substitution Space (the “Tenant Alterations”). Notwithstanding the foregoing, Tenant and its contractors shall not have the right to perform the Tenant Alterations in the Substitution Space unless and until Tenant has complied with all of the terms and conditions of Article 12 of the Original Lease, including, without limitation, approval by Landlord of the final plans for the Tenant Alterations and the contractors to be retained by Tenant to perform such Tenant Alterations. Tenant shall be responsible for all elements of the design of Tenant's plans (including, without limitation, compliance with law, functionality of design, the structural integrity of the design, the configuration of the Substitution Space and the placement of Tenant's furniture, appliances and equipment), and Landlord's approval of Tenant's plans shall in no event relieve Tenant of the responsibility for such design. In addition to the foregoing, Tenant shall be solely liable for all costs and expenses associated with or otherwise caused by Tenant's performance and installment of the Tenant Alterations (including, without limitation, any legal compliance requirements arising outside of the Substitution Space). Landlord's approval of the contractors to perform the Tenant Alterations shall not be unreasonably withheld. The parties agree that Landlord's approval of the general contractor to perform the Tenant Alterations shall not be considered to be unreasonably withheld if any such general contractor (a) does not have trade references reasonably acceptable to Landlord, (b) does not maintain insurance as required pursuant to the terms of the Lease, (c) does not have the ability to be bonded for the work in an amount of no less than one hundred fifty percent (150%) of the total estimated cost of the Tenant Alterations, (d) does not provide current financial statements reasonably acceptable to Landlord, or (e) is not licensed as a contractor in the state/municipality in which the Premises is located. Tenant acknowledges the foregoing is not intended to be an exclusive list of the reasons why Landlord may reasonably withhold its consent to a general contractor.
2. Provided Tenant is not in default, Landlord agrees to contribute up to $1,178,800.00 (i.e., $40.00 per rentable square foot of the Substitution Space) (the “Allowance”) toward the cost of performing the Tenant Alterations in preparation of Tenant's occupancy of the Substitution Space. The Allowance may only be used for the cost of preparing design and construction documents and mechanical and electrical plans for the Tenant Alterations and for hard costs in connection with the Tenant Alterations. The Allowance shall be paid to Tenant or, at Landlord's option, to the order of the general contractor that performed the Tenant Alterations, within thirty (30) days following receipt by Landlord of (a) receipted bills covering all labor and materials expended and used in the Tenant Alterations; (b) a sworn contractor's affidavit from the general contractor and a request to disburse from Tenant containing an approval by Tenant of the work done; (c) full and final waivers of lien; (d) as-built plans of the Tenant Alterations; and (e) the certification of Tenant and its architect that the Tenant Alterations have been installed in a good and workmanlike manner in accordance with the approved plans, and in accordance with applicable laws, codes and ordinances. The Allowance shall be disbursed in the amount reflected on the receipted bills meeting the requirements above. Notwithstanding anything herein to the contrary, Landlord shall not be obligated to disburse any portion of the Allowance during the continuance of an uncured default under the Lease, and Landlord's obligation to disburse shall only resume when and if such default is cured.
3. Notwithstanding anything to the contrary set forth herein, upon completion of the Tenant Alterations and application of the Allowance to the costs related thereto pursuant to this Exhibit B, if any portion of the Allowance is then remaining (the “Unused Allowance”), Tenant shall be entitled to apply up to $15.00 per rentable square foot of the Substitution Space (that is, up to $442,050.00) of such Unused Allowance (if any) as follows: (i) to the cost of purchasing and installing Tenant's voice and data cabling and wiring at the Substitution Space, (ii) to the cost of purchasing and installing Building Signage, (iii) the cost of purchasing and installing furniture, fixtures and equipment (collectively, the “FF&E”), which FF&E shall be located at all times at the Substitution Space and for use by Tenant in the Substitution Space, (iv) to the cost of moving from the Original Leased Premises into the Substitution Space, including reprinting stationary on hand and moving Tenant's furniture, equipment and other personal property into the Substitution Space; and (v) provided Tenant delivers written notice to Landlord by no later than December 31, 2016, to the next installment(s) of Minimum Monthly Rent payable by Tenant under the Lease, as amended. However, in no event shall Landlord have any obligation to apply any portion of the Unused Allowance to Minimum Monthly Rent if Tenant does not deliver such written notice to Landlord by December 31, 2016 and any unused amount remaining after such date shall accrue to the sole benefit of Landlord, it being understood that Tenant shall not be entitled to any credit, abatement or other concession in connection therewith. Tenant shall be responsible for all applicable state sales or use taxes, if any, payable in connection with the Tenant Alterations and/or Allowance. To the extent any Unused Allowance is applied to any FF&E,
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Landlord shall own all the FF&E until the expiration of the Lease (provided that Tenant, not Landlord, shall be responsible for all costs associated with such FF&E, including, without limitation, the cost of insuring the same, all maintenance and repair costs and taxes), at which time the FF&E shall become the property of Tenant as if by xxxx of sale hereunder. Tenant shall maintain and repair the FF&E in good and working order and shall insure the FF&E to the same extent Tenant is required to insure Tenant's personal property pursuant to the terms of the Lease. In the event that the Lease is terminated prior to the Extended Termination Date, Tenant, at Landlord's election, shall pay to Landlord the unamortized portion of the costs of the FF&E (no later than the termination date of the Lease), or, at Landlord's election, the FF&E shall remain the property of Landlord and Tenant shall and, in such event, hereby does, waive all of its rights thereto.
4. If Tenant does not submit a request for payment of the entire Allowance to Landlord in accordance with the provisions contained in this Exhibit B by December 31, 2016, any unused amount shall accrue to the sole benefit of Landlord, it being understood that Tenant shall not be entitled to any credit, abatement or other concession in connection therewith. Tenant shall be responsible for all applicable state sales or use taxes, if any, payable in connection with the Tenant Alterations and/or Allowance. Landlord shall be entitled to deduct from the Allowance a construction management fee for Landlord's oversight of the Tenant Alterations in an amount equal to one percent (1%) of the total cost of the Tenant Alterations.
5. Tenant agrees to accept the Substitution Space in its “as-is” condition and configuration, it being agreed that Landlord shall not be required to perform any work or, except as provided above with respect to the Allowance, incur any costs in connection with the construction or demolition of any improvements in the Substitution Space.
6. This Exhibit B shall not be deemed applicable to any additional space added to the Premises at any time or from time to time, whether by any options under the Lease or otherwise, or to any portion of the Original Leased Premises or any additions to the Premises in the event of a renewal or extension of the original Term of the Lease, whether by any options under the Lease or otherwise, unless expressly so provided in the Lease or any amendment or supplement to the Lease.
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EXHIBIT C – FORM OF SUBSTITUTION EFFECTIVE DATE MEMORANDUM
attached to and made a part of the Amendment dated as of July 21, 2015,
between PR 701 GATEWAY, LLC, a Delaware limited liability company,
as Landlord and PUMA BIOTECHNOLOGY, INC., a Delaware corporation, as Tenant
SUBSTITUTION EFFECTIVE DATE MEMORANDUM
THIS MEMORANDUM is made as of , by and between PR 701 GATEWAY, LLC, a Delaware limited liability company (“Landlord”), and PUMA BIOTECHNOLOGY, INC., a Delaware corporation (“Tenant”).
Recitals:
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A. |
Landlord (as successor in interest to DFW III GATEWAY, LLC, a Delaware limited liability company) and Tenant are parties to that certain Office Lease dated May 16, 2012 (the “Original Lease”), which Original Lease has been previously amended by that certain Acknowledgement of Commencement Date dated as of November 12, 2012, that certain First Amendment to Lease dated as of May 19, 2014, that certain Second Amendment to Lease dated as of June 10, 2014 and that certain Second Expansion Date Memorandum dated as of February 17, 2015 and that certain Third Amendment (“Third Amendment”) dated as of July 21, 2015 (collectively, the “Lease”). Pursuant to the Lease, Landlord leased to Tenant space currently containing approximately 16,712 rentable square feet (the “Original Leased Premises”) described as Suite Nos. 250 and 275 on the second (2nd) floor of the building located at 000 Xxxxxxx Xxxxxxxxx, Xxxxx Xxx Xxxxxxxxx, Xxxxxxxxxx (the “Building”). |
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Pursuant to the Third Amendment, Landlord and Tenant agreed to relocate Tenant from the Original Leased Premises to approximately 29,470 rentable square feet of space described as the entire fifth (5th) floor of the Building (the “Substitution Space”). |
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Tenant is in possession of the Substitution Space and the Substitution Effective Date, as defined in the Amendment, has occurred. |
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Landlord and Tenant desire to enter into this Memorandum confirming the Substitution Effective Date and the Extended Termination Date, and other matters under the Amendment. |
NOW, THEREFORE, Landlord and Tenant agree as follows:
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The actual Substitution Effective Date is ________________. |
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The actual Extended Termination Date is _________________. |
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3. |
The schedule of Minimum Monthly Rent with respect to the Substitution Space set forth in Section 4 of the Third Amendment is deleted in its entirety, and the following is substituted therefor: |
[insert rent schedule]
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4. |
Capitalized terms not defined herein shall have the same meaning as set forth in the Lease. |
IN WITNESS WHEREOF, the parties hereto have caused this Memorandum to be executed as of the date and year first above written.
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LANDLORD: |
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TENANT: |
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PR 701 GATEWAY, LLC, a Delaware limited liability company |
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a Delaware corporation |
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By: |
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PRISA LHC, LLC, a Delaware limited liability company |
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Its: |
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Sole Member |
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By: |
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DO NOT SIGN |
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By: |
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DO NOT SIGN |
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Name: |
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