Exhibit 10.4
AMENDMENT TO
AMENDED AND RESTATED BUILT-TO-SUIT LEASE
THIS AMENDMENT TO AMENDED AND RESTATED BUILT-TO-SUIT LEASE (the
"AMENDMENT") is made effective as of January 11, 2005 by and between BMR-201
Industrial Road LLC, a Delaware limited liability company (formerly known as
Inhale ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, L.P., the "LANDLORD") and Nektar Therapeutics, a
Delaware corporation (formerly known as Inhale Therapeutic Systems, Inc., the
"TENANT").
RECITALS
A. Landlord and Tenant have entered in that certain Amended and
Restated Built-To-Suit Lease dated August 17, 2004 (the "LEASE"), of that
certain real property located at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
including: (i) the second floor, the third floor and the fourth floor of
Building 1 (collectively, "PHASE 1"), and (ii) 45,574 rentable square feet
located on the third floor of Building 2 ("PHASE 2A" and, together with the
Phase 1, the "LEASED PREMISES"). Capitalized terms used herein and not otherwise
defined herein shall have the meaning assigned thereto in the Lease.
B. Tenant no longer wishes to occupy ▇▇▇▇▇ ▇▇. Landlord is
willing to enter into a Lease with Nuvelo, Inc., a Delaware corporation
("NUVELO") (the "NUVELO LEASE") to lease Phase 2A to Nuvelo.
C. Landlord and Tenant now wish to amend this Lease to, among
other things, terminate Tenant's lease of Phase 2A to allow Landlord to enter
into a new lease with Nuvelo, all as and to the extent more particularly set
forth below.
AGREEMENT
NOW THEREFORE, in consideration of the foregoing and other good and
valuable consideration, Landlord and Tenant hereby agree as follows:
1. RECITAL D. The following defined terms are added to Recital D
of the Lease:
"NUVELO: shall mean Nuvelo, Inc., a Delaware corporation."
"NUVELO RENT COMMENCEMENT DATE: shall mean the date the Nuvelo
is required to commence paying rent under the Nuvelo Lease or October 1,
2005, whichever is sooner."
"NUVELO EFFECTIVE DATE: shall mean the date that the Nuvelo
Lease is executed and is in full force and effect, which the parties agree
shall be January 2005."
"NUVELO LEASE: shall mean that certain Lease dated as of
January 2005 between Nuvelo and Landlord, pursuant to which Nuvelo is
leasing Phase 2A."
2. AMENDMENT TO SECTION 1.1(a). Section 1.1(a), excluding Section
1.1(a)(i)-1.1(a)(x) of the Lease is hereby amended and restated in its entirety
as follows:
"(a) Subject to the Parking Lease dated as of September 14,
2000 (the "PARKING LEASE") by and between Landlord and Tenant, Landlord
leases to Tenant and Tenant leases from Landlord, on the terms, covenants
and conditions hereinafter set ▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇, and Phase 2A
(all as defined below and referred to collectively herein as the
"PREMISES"). As of the effective date of this Amendment, all of Tenant's
rights and obligations to Phase 2A shall expire and the Premises shall
consist of Phase 1A and Phase 1B only. The Premises, together with Phase
2B, were constructed by Landlord; and are located in two connected
four-story buildings containing an aggregate of approximately 390,000
square feet, consisting of approximately 171,965 square feet of rentable
area for office and laboratory research and development and two lower
stories primarily of parking (collectively, the "BUILDINGS" and each a
"BUILDING"). The Buildings were constructed on the Real Property in
connection with the Project."
3. AMENDMENT TO SECTION 3.1(c)(II). Section 3.1(c)(ii) of the
Lease is hereby amended and restated in its entirety as follows:
"(ii) ▇▇▇▇▇ ▇▇. Beginning on the Phase 2A Rent Commencement
Date and terminating on January 31, 2005, Tenant shall pay Minimum Rental
for Phase 2A in an amount equal to $164,066.40 ($3.60 per sq. ft.
multiplied by 45,574)."
4. AMENDMENT TO SECTION 4. Section 4 of the Lease is hereby
amended and restated in its entirety as follows:
"PARKING. Landlord and Tenant agree that the Common Areas of
the Real Property shall include not less than 690 parking spaces.
Commencing on the Effective Date and ending on the Building 1 Termination
Date, Tenant shall be entitled to 224 spaces, all in addition to those
spaces provided in and subject to the Parking Lease."
5. AMENDMENT TO SECTION 5.1(b). Section 5.1(b) of the Lease is
hereby amended and restated in its entirety as follows:
"(b) Tenant Work; Phase 2A; Improvements. (i) Tenant has
constructed Tenant Improvements within Phase 1A and Phase 1B of the
Premises in accordance with the prior lease, and may make such future
improvements and modifications to the same as set forth herein. Tenant and
Landlord agreed under the Original Lease to provide Tenant with a Tenant
Improvement Allowance for tenant improvements within each Phase of the
Premises equal to $100 per Usable Square Foot. Landlord and Tenant agree
that Landlord shall have satisfied its obligation to provide a Tenant
Improvement Allowance for Phase 2A once Landlord has satisfied its
obligations under the following Section 5.1(b)(ii).
(ii) Landlord shall provide a tenant improvement allowance to
Nuvelo in the amount of not less than $100 per Usable Square Foot for
improvements to ▇▇▇▇▇ ▇▇, in accordance with the Nuvelo Lease. Tenant
shall reimburse Landlord for a portion of such allowance ("Tenant's TI
Reimbursement"), calculated as follows: (i) the difference
between (a) the amount actually funded by Landlord as a tenant improvement
allowance to Nuvelo under the Nuvelo Lease (including any amounts provided
to Nuvelo as rent credits), but in no event more than $6,380,360 [45,574
sf x $140/sf] and (b) $4,397,200 [43,972 sf x $100/sf]; (ii) times 28.57%.
Tenant's TI Reimbursement shall be paid in two installments, the first
installment of $283,294.40 shall be paid upon execution of this Amendment
and the balance shall be paid on December 31, 2005."
6. AMENDMENT TO SECTION 7.1 (a) (IV). Section 7.1(a)(iv) of the
Lease is hereby amended and restated in its entirety as follows:
"(iv) The term `TENANT'S OPERATING COST SHARE' means 72.98%
through and until the Nuvelo Rent Commencement Date and thereafter means 46.47%.
`Tenant's Exterior COMMON AREA COST SHARE' shall be equal to the Tenant's
Operating Cost Share as established from time to time."
7. AMENDMENT TO SECTION 13.1(e). Section 13.1(e) of the Lease is
hereby deleted in its entirety and replaced with "[Intentionally Deleted]."
8. CONDITION PRECEDENT. This Amendment shall be conditioned upon
execution and delivery of the Nuvelo Lease by Nuvelo and Landlord.
9. LEASE TERMINATION. For and in consideration of Landlord's
agreement to terminate Tenant's interest in Phase 2A as provided herein, Tenant
agrees to pay Landlord the following sums:
(a) TERMINATION FEE. Tenant shall pay Landlord the sum of $50,000
upon execution of this Amendment.
(b) CONTINUING PAYMENTS. Tenant shall pay Landlord the sum of
$3,216,816.40 in accordance with the schedule attached hereto as Exhibit "A."
(c) REIMBURSEMENT OF BROKERS' FEES. Tenant agrees to reimburse
Landlord for a portion of the brokerage fees and commissions payable by Landlord
in connection with the Nuvelo Lease, as follows: Tenant shall pay Landlord the
sum of $102,536.37 upon execution of this Amendment and the sum of $102,536.37
on August 13, 2005. Subject to Tenant's reimbursement obligations herein,
Landlord agrees that it shall be responsible for, and shall indemnify Tenant
from and against, any and all brokerage fees and commissions payable in
connection with the Nuvelo Lease.
10. CONDITION UPON SURRENDER. Upon the Nuvelo Effective Date,
Tenant shall surrender Phase 2A, including any additions, alterations and
improvements thereto, broom clean, in the same condition received, free from
Hazardous Materials caused to be present by Tenant, its agents or invitees,
ordinary wear and tear excepted, and delivered free of radioactive licenses or
other restrictions on use, first, however, removing all goods and effects of
Tenant.
11. HAZARDOUS MATERIALS. As of the date of this Amendment, Tenant
represents and warrants that Phase 2A is free from Hazardous Materials caused to
be present by Tenant and that Tenant's use of Phase 2A has not been and Phase 2A
is not in violation of any
laws with respect to the disposal or storage of Hazardous Substances, human
health or the environment as the result of any actions of Tenant.
12. NO FURTHER AMENDMENT. Except as expressly amended or modified
by this Amendment, each and every term and provision of the Lease remains in
full force and effect, without modification or amendment. This Amendment shall
be construed together with and as a part of the Lease.
13. COUNTERPARTS. This Amendment may be executed in several
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same Amendment. Except as amended hereby,
the Lease shall remain in full force and effect.
IN WITNESS WHEREOF, the undersigned have executed this Amendment as
of the day and year first above written.
LANDLORD
BMR-201 INDUSTRIAL ROAD LLC,
a Delaware limited liability company
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Executive Vice President
TENANT
NEKTAR THERAPEUTICS,
a Delaware corporation
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Financial Officer
By: /s/ ▇▇▇▇ ▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇▇▇▇
Title: President and Chief
Executive Officer
EXHIBIT "A"
PAYMENT SCHEDULE
Payment Date Amount
------------ ------
02/01/05 174,108.58
03/01/05 174,108.58
04/01/05 174,108.58
05/01/05 174,108.58
06/01/05 174,108.58
07/01/05 174,108.58
08/01/05 118,243.67
09/01/05 82,960.58
10/01/05 85,881.11
11/01/05 86,442.75
12/01/05 86,442.75
01/01/06 86,442.75
02/01/06 86,442.75
03/01/06 86,442.75
04/01/06 86,442.75
05/01/06 86,442.75
06/01/06 86,442.75
07/01/06 86,442.75
08/01/06 86,442.75
09/01/06 86,442.75
10/01/06 89,421.69
11/01/06 89,994.56
12/01/06 89,994.56
01/01/07 89,994.56
02/01/07 89,994.56
03/01/07 89,994.56
04/01/07 89,994.56
05/01/07 89,994.56
06/01/07 89,994.56
07/01/07 89,994.56
08/01/07 34,836.60
Total $3,216,816.40