EXHIBIT 10.1
FOURTH AMENDMENT TO LEASE
THIS FOURTH AMENDMENT TO LEASE (the "Amendment") is made and entered into as of
the 18th day of January, 2005, by and between Marina Business Center, LLC, a
California limited liability company ("Landlord"), and CancerVax Corporation, a
Delaware corporation ("Tenant").
RECITALS
A. Landlord (as successor in interest to Xxxxxxx Properties, LP, a
California limited partnership) and Tenant are parties to that
certain lease dated July 22, 1999, which lease has been previously
amended by First Amendment to Lease dated October 1, 2001, by Second
Amendment to Lease dated September 4, 2002, and the Third Amendment
to Lease dated November 14, 2003 (collectively, the "Lease").
Pursuant to the Lease, Landlord has leased to Tenant space
containing approximately 50,750 rentable square feet (the
"Premises") described as Suite Nos. 100, 150 and the Mezzanine
commonly known as Marina Business Center, 0000 Xxxxxxx Xxxxxx,
Xxxxxx Xxx Xxx, Xxxxxxxxxx 00000 (the "Building").
B. Tenant has submitted to Landlord written plans for making certain
tenant improvements to the Premises (the "Tenant Improvements")
known as the Manufacturing Facility Remodel, dated October 29, 2004
(the "Plans"). Details of the Plans are incorporated herein by
reference.
C. Tenant has further requested that Landlord approve the Plans and
Landlord has agreed to approve the same on the following terms and
conditions.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, Landlord and Tenant agree as follows:
I. Plans and Specifications.
A. Tenant shall be responsible for ensuring that the Plans are
compatible with the design, construction and equipment of the
Building, comply with applicable Regulations and Standards
(defined below), people loads, floor loads, power and
plumbing, regular and HVAC needs, telephone communications,
telephone and electrical outlets, lighting, light fixtures and
related power, and electrical and telephone switches, B.T.U.
calculations, electrical requirements and special receptacle
requirements. The Plans shall also include mechanical,
electrical, plumbing, structural and engineering drawings
mutually satisfactory to Landlord and Tenant. Notwithstanding
Landlord's review and approval of the Plans and any revisions
thereto, Landlord shall have no responsibility or liability
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whatsoever for any errors or omissions contained in the Plans
or any revisions thereto, or to verify dimensions or
conditions, or for the quality, design or compliance with
applicable Regulations of any improvements described therein
or constructed in accordance therewith. Tenant hereby waives
all claims against Landlord relating to, or arising out of the
design or construction of, the Tenant Improvements.
B. The plans for the new emergency generator are not approved
(note 3 page A1.01 of the Plans). Such Plans are hereby
approved, provided that, the generator surround is constructed
of the same materials and construction used on the Tenant's
existing generator facility with the access as shown on the
Plans moved 90 degrees to the back of the enclosure from the
side.
II. Tenant Improvement Cost.
The cost of the Tenant Improvements shall be paid for by Tenant,
including, without limitation, the cost of: Plans and studies;
architectural and engineering fees; consulting fees in connection with
obtaining U.S. Food and Drug Administration approval for the operation of
the Permitted Use from the Premises; permits, approvals and other
governmental fees; labor, material, equipment and supplies; construction
fees and other amounts payable to contractors or subcontractors; taxes;
off-site improvements; remediation and preparation of the Premises for
construction of the Tenant Improvements; filing and recording fees;
premiums for insurance and bonds; code compliance and related expenses
triggered as a result of the construction of the Tenant Improvements;
attorney's fees; financing costs; and all other costs expended or to be
expended in the construction of the Tenant Improvements.
III. Construction of Tenant Improvements.
A. Tenant shall be responsible for obtaining all governmental
approvals to the full extent necessary for the construction
and installation of the Tenant Improvements and for Tenant's
occupancy of the Premises, in compliance with all applicable
Regulations. Tenant shall employ Xxxxxxx Construction, or
another Contractor that is reasonably acceptable to Landlord,
to construct the Tenant Improvements in conformance with the
approved Plans. The contractor shall be duly licensed.
B. Without limiting the provisions of Paragraph 3.5 of the Lease,
Landlord shall not be liable for any direct or indirect
damages suffered by Tenant as a result of delays in
construction beyond Landlord's reasonable control, including,
but not limited to, delays due to strikes or unavailability of
materials or labor, or delays caused by Tenant (including
delays by the Space Planner, the contractor or anyone else
performing services on behalf of Landlord or Tenant).
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C. All Tenant Improvement work to be performed on the Premises by
Tenant or Tenant's contractor or agents shall be subject to
the following conditions:
i. All work shall be done in conformity with a valid
building permit when required, a copy of which shall be
furnished to Landlord before such work is commenced, and
in any case, all such work shall be performed in a good
workmanlike manner, and in accordance with all
applicable Regulations and the requirements and
standards of any insurance underwriting board,
inspection bureau or insurance carrier insuring the
Premises pursuant to the Lease. Notwithstanding any
failure by Landlord to object to any such work, Landlord
shall have no responsibility for Tenant's failure to
comply with all applicable Regulations. Tenant shall be
responsible for ensuring that construction and
installation of the Tenant Improvements will not
materially affect the structural integrity of the
Building.
ii. At reasonable times and upon reasonable notice, Landlord
or Landlord's agents shall have the right to inspect the
construction of the Tenant Improvements by Tenant during
the progress thereof. If Landlord shall give notice of
faulty construction or any other material deviation from
the approved Plans, Tenant shall inform the contractor
of such deviation and shall require the contractor to
make corrections promptly. However, neither the
privilege herein granted to Landlord to make such
inspections, nor the making of such inspections by
Landlord, shall operate as a waiver of any right of
Landlord to require good and workmanlike construction
and improvements erected in accordance with the approved
Plans.
iii. Unless otherwise agreed in writing by Landlord and
Tenant, Tenant's construction of the Tenant Improvements
shall comply with the following: (a) the Tenant
Improvements shall be constructed in substantial
accordance with the approved Plans, as may be amended
from time to time; and (b) Tenant shall abide by all
reasonable rules made by Landlord with respect to the
use of freight, loading dock, and service elevators,
storage of materials, coordination of work with the
contractors of other tenants, and any other matter in
connection with this Amendment, including, without
limitation, the construction of the Tenant Improvements.
iv. Tenant shall promptly reimburse Landlord upon demand for
any reasonable expense actually incurred by the Landlord
by reason of faulty work done by Tenant or its
contractors or by reason of any delays caused by such
work, or by reason of inadequate clean-up.
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D. Notwithstanding Section 12 of the Lease, Landlord may at
Landlord's option and upon written notice to Tenant no later
than 30 days after receipt of the Improvement Removal
Notification Letter, require that Tenant, at tenant's expense,
remove any and all Tenant Improvements made by Tenant as
specified by Landlord (specifically excluding any Tenant
Improvements that are not part of the Plans referenced in this
Amendment) and restore the Premises by the expiration or
earlier termination of this lease to the condition existing
prior to the construction of such Alterations. No sooner than
the 180th day prior to termination of the lease or any
extension thereof, Tenant shall send a written Notification
("Improvement Removal Notification Letter") to Landlord asking
the specific Tenant Improvements which will be required to be
removed and restored.
IV Insurance Requirements.
A. All of Tenant's contractors shall carry worker's compensation
insurance covering all of their respective employees, and
shall also carry public liability insurance, including
property damage, all with limits, in form and with companies
as are required to be carried by Tenant as set forth in
Paragraph 8 of the Lease.
B. Tenant shall carry "Builder's All Risk" insurance in an amount
approved by Landlord covering the construction of the Tenant
Improvements, and such other insurance as Landlord may
require, it being understood and agreed that the Tenant
Improvements shall be insured by Tenant pursuant to Paragraph
8 of the Lease immediately upon completion thereof. Such
insurance shall be in amounts and shall include such extended
coverage endorsements as may be reasonably required by
Landlord including, but not limited to, the requirement that
all of Tenant's contractors shall carry excess liability and
Products and Completed Operation coverage insurance, each in
amounts not less than $500,000 per incident, $1,000,000 in
aggregate, and in form and with companies as are required to
be carried by Tenant as set forth in Paragraph 8 of the Lease.
C. Certificates for all insurance carried pursuant to this
Amendment must comply with the requirements of Paragraph 8 of
the Lease and shall be delivered to Landlord before the
commencement of construction of the Tenant Improvements and
before the contractor's equipment is moved onto the site. In
the event the Tenant Improvements are damaged by any cause
during the course of the construction thereof, Tenant shall
immediately repair the same at Tenant's sole cost and expense.
Tenant's contractors shall
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maintain the foregoing insurance coverage in force until the
Tenant Improvements are fully completed and accepted by
Landlord. All policies carried under this Paragraph IV shall
insure Landlord and Tenant, as their interests may appear, as
well as the contractors. All insurance maintained by Tenant's
contractors shall preclude subrogation claims by the insurer
against anyone insured thereunder. Such insurance shall
provide that it is primary insurance as respects the owner and
that any other insurance maintained by owner is excess and
noncontributing with the insurance required hereunder. If the
Tenant Improvements are not completed by December 31, 2005,
and if, at that time, Landlord has a reasonable basis for
concern regarding Tenant's ability to pay for the cost of the
Tenant Improvements or Tenant's actual payment of said costs,
Landlord may require Tenant to obtain a lien and completion
bond or some alternate form of security satisfactory to
Landlord in an amount sufficient to ensure the lien-free
completion of the Tenant Improvements and naming Landlord as a
co-obligee.
V. Completion of Construction.
A. Within thirty (30) days after completion of construction of
the Tenant Improvements, Tenant shall cause a Notice of
Completion to be recorded in the office of the Recorder of the
county in which the Building is located in accordance with
Section 3093 of the Civil Code of the State of California or
any successor statute, and shall furnish a copy thereof to
Landlord upon such recordation. If Tenant fails to do so,
Landlord may execute and file the same on behalf of Tenant as
Tenant's agent for such purpose, at Tenant' sole cost and
expense. At the conclusion of construction, (i) Tenant shall
cause the contractor (a) to update the approved working
drawings as necessary to reflect all changes made to the
approved working drawings during the course of construction,
(b) to certify to the best of their knowledge that the
"record-set" of as-built drawings are true and correct, which
certification shall survive the expiration or termination of
the Lease, (c) to deliver to Landlord two (2) sets of copies
of such record set drawings within ninety (90) days following
issuance of a certificate of occupancy for the Premises,
together with any and all electronic CAD drawings, and (d) to
deliver to Landlord a copy of all warranties, guarantees, and
operating manuals relating to all non-removable fixtures
included as part of the Tenant Improvements.
B. A default under this Amendment shall constitute a default
under the Lease, and the parties shall be entitled to all
rights and remedies under the Lease in the event of a default
hereunder by the other party.
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C. Without limiting the "as-is" provisions of the Lease, Tenant
hereby affirms and accepts the Premises, including, without
limitation, the concrete slab, the utility installations and
any and all other Building systems, in their "as-is" condition
and configuration and acknowledges that it has had an
opportunity to inspect the Premises prior to signing this
Amendment.
VI. Indemnification of Landlord.
A. Landlord shall not be obligated to incur any costs in
connection with the construction of the Tenant Improvements.
Tenant's indemnity of Landlord, as set forth in Article 8 of
the Lease, shall also apply with respect to any and all costs,
losses, damages, injuries and liabilities related in any way
to any act or omission of Tenant or Tenant's employees,
agents, customers, visitors, invitees, licensees, contractors,
assignees and subtenants ("Tenant's Agents") or anyone
directly or indirectly employed by any of them, or in
connection with Tenant's non-payment of any amount arising out
of the Tenant Improvements, and/or Landlord's disapproval of
all or any portion of any request for payment by any of
Tenant's Agents or anyone directly or indirectly employed by
any of them with respect to the construction of the Tenant
Improvements. Such indemnity by Tenant, as set forth in the
Lease, shall also apply with respect to any and all costs,
losses, damages, injuries and liabilities related in any way
to Landlord's performance of any ministerial acts reasonably
necessary (i) to permit Tenant to complete the Tenant
Improvements, and (ii) to enable Tenant to obtain any building
permit or certificate of occupancy for the Premises.
B. Neither Landlord nor any of Landlord's agents or consultants
shall be responsible for obtaining any building permit or
certificate of occupancy for the Premises and the obtaining of
the same shall be the sole responsibility of the Tenant.
VII Miscellaneous.
A. This Amendment 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.
B. Except as herein modified or amended, the provisions,
conditions and terms of the Lease shall remain unchanged and
in full force and effect.
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C. In the case of any inconsistency between the provisions of the
Lease and this Amendment, the provisions of this Amendment
shall govern and control.
D. 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.
E. 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.
F. Tenant hereby represents to Landlord that Tenant has dealt
with no broker in connection with this Amendment. Tenant
agrees to indemnify and hold Landlord, its trustees, members,
principals, beneficiaries, partners, officers, directors,
employees, mortgagee(s) and agents, and the respective
principals and members of any such agents (collectively, the
"Landlord Related Parties") harmless from all claims of any
brokers claiming to have represented Tenant in connection with
this Amendment. Landlord hereby represents to Tenant that
Landlord has dealt with no broker in connection with this
Amendment. Landlord agrees to indemnify and hold Tenant, its
trustees, members, principals, beneficiaries, partners,
officers, directors, employees, and agents, and the respective
principals and members of any such agents (collectively, the
"Tenant Related Parties") harmless from all claims of any
brokers claiming to have represented Landlord in connection
with this Amendment.
G. 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.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Amendment as of
the day and year first above written.
LANDLORD:
MARINA BUSINESS CENTER, LLC,
a California limited liability company
By: /s/ W. Xxxxx Xxxxxxx
--------------------
Print Name: W. Xxxxx Xxxxxxx
Title: Its Authorized Agent
TENANT:
CANCERVAX CORPORATION,
a Delaware corporation
By: /s/ Xxxxx X. Xxxx
-----------------
Print Name: Xxxxx X. Xxxx
Title: President and CEO
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