EX-10.2 2 aimt-ex102_251.htm EX-10.2 Second AMENDMENT To Lease

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Period

Monthly Base Rent Rate

Monthly Base Rent

Through Dec 31, 2018

$3.70

$54,912

Jan 1, 2019 – Dec 31, 2019

$3.81

$56,544

Jan 1, 2020 – Dec 31, 2020

$3.93

$58,325

Jan 1, 2021 – Dec 31, 2021

$4.05

$60,106

Jan 1, 2022 – Dec 31, 2022

$4.17

$61,887

Jan 1, 2023 – Dec 31, 2023

$4.30

$63,816

Jan 1, 2024 – June 30, 2024

$4.43

$65,730

Period

Monthly Base Rent Rate

Monthly Base Rent

Dec 1, 2021 – Nov 30, 2022

$4.12

$108,569

Dec 1, 2022 – Nov 30, 2023

$4.24

$111,826

Dec 1, 2023 – June 30, 2024

$4.37

$115,181

Period

Monthly Base Rent Rate

Monthly Base Rent

Dec 1, 2021 – Nov 30, 2022

$4.12

$48,055

Dec 1, 2022 – Nov 30, 2023

$4.24

$49,496

Dec 1, 2023 – June 30, 2024

$4.37

$50,981

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A.

The name shown on the Building-top sign shall be “Aimmune” or “Aimmune Therapeutics” and may in either case, at Tenant’s option, include Tenant’s logo.

B.

Tenant’s right shall be subject to applicable governmental approvals, the City of Brisbane, and the Sierra Point Owners Association. The “Sierra Point Building-Mounted Signage Standards” call for maximum dimensions of building top signage to be 6’ tall x 41’ 6” wide. (▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇_▇▇▇▇.▇▇▇) The location of the Building-top sign shall be subject to such approvals; Landlord consents to the installation of the sign in the location of the red box on this photograph of the Building:

C.

Prior to installing any Building-top sign, Tenant shall submit to Landlord detailed plans showing the proposed signage and the details for its installation, and obtain Landlord’s advance written approval, which shall not be unreasonably withheld.

D.

The Building-top sign shall be personal to the original Tenant or its affiliate assignee or any Permitted Transferee. The Building-top signage right cannot be transferred to any subtenant, assignee, transferee, or third party other than to an affiliate assignee or any Permitted Transferee.  

E.

Tenant’s right to exterior building signage is not exclusive, and Landlord hereby advises Tenant that it may permit other tenants to install additional exterior Building-top signs.

F.

Tenant shall be responsible for all costs of installation, maintenance, and removal of the Building Signage.  Removal of the Building-top signage shall include any necessary repair of the Building in order to return the Building to its condition before the signage was installed.  In the event that Tenant fails to properly maintain or remove the Building Signage, then Landlord shall have right to perform such acts at Tenant’s expense.

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G.

Subject to applicable governmental approvals, the Building-top sign may at Tenant’s option be a lit sign.  

H.

Tenant’s right to exterior building signage shall be terminated in the event of any of the following:

•

Tenant removes the Building-top sign and does not install a new sign within twelve (12) months

•

Tenant Default that remains uncured for a period exceeding thirty (30) days

•

Tenant vacates the Premises

•

The event of any Assignment, Sublease, or Transfer of fifty percent (50%) or more of the Premises other than to an affiliate assignee or any Permitted Transferee.

•

The expiration of the Lease

A.

Section 4.5 of the Lease (Substitution of Space) is hereby deleted in its entirety.  

B.

In Section 14.1(b) of the Lease, the phrase “or Tenant has defaulted under this Lease on two or more occasions within the prior year” is hereby deleted.

C.

Section 14.1(c) of the Lease is hereby replaced with: “the assignment or sublease is for a portion of a floor or would result in the dividing or sub-demising of a floor.”

D.

Section 14.7 of the Lease (Permitted Transfers) is hereby amended by deleting the phrase “and credit quality” throughout the Section.

E.

Section 15.1(c) of the Lease is hereby replaced with: “The abandonment or vacating for more than six (6) months of the Premises by Tenant.

F.

Section 29.12 of the Lease (Confidentiality) is hereby deleted.

G.

Section 7.2 of the Lease (Operating Expenses) is hereby amended: to the extent Operating Expenses for a calendar year include premiums for earthquake insurance not carried during the Base Year, then Operating Expenses for the Base Year shall be increased as if Landlord carried such earthquake insurance during the Base Year.

H.

Section 7.3 of the Lease (Occupancy Assumption) is hereby amended by deleting the phrase “at Landlord’s Option” from the first sentence.

I.

Pursuant to Section 16.5 of the Lease, within sixty (60) days after the execution of this Second Amendment, Landlord shall use commercially reasonable best efforts to cause its current security holder to execute a Subordination Agreement, Attornment and Nondisturbance Agreement generally in the form attached hereto as Exhibit D. The following language will be added to the end of Section 16.5 of the Lease:  “Landlord and Tenant agree that any subordination to any future financing will include non-disturbance on a lender’s commercially reasonable subordination and non-disturbance form.  

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By way of example, the parties agree that the form attached as Exhibit D to the Second Amendment is commercially reasonable.”

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TENANT:

LANDLORD:

Aimmune Therapeutics, Inc.

Diamond Marina LLC

a Delaware corporation

a California limited liability company

By:

/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇

By:

/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇

Name:

▇▇▇▇ ▇▇▇▇▇▇▇▇▇

Name:

▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇

Title:

CFO

Title:

Manager

Date:

June 30, 2017

Date:

June 30, 2017

Diamond ▇▇▇▇▇▇ ▇▇ LLC

a California limited liability company

By:

/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇

Name:

▇▇▇▇▇▇ ▇▇▇▇▇▇▇

Title:

Manager

Date:

June 30, 2017

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1)

Generally consistent with the “Reconfigured Floor Plan” attached hereto as Exhibit B-1, Landlord shall construct new interior improvements consisting of new offices, conference rooms, break room, and reception area. Demising walls and doors currently dividing the Third Floor shall also be removed.

2)

With the construction of the new walls and rooms, Landlord shall also perform related as-needed modifications to the lighting fixture and switch layout, HVAC System distribution, and Fire Life Safety & Sprinkler distribution.

3)

Electrical: there shall be at least 2 electric outlets per office, j-boxes for Tenant’s workstations, and miscellaneous electric outlets for Tenant’s printers, appliances, board room AV equipment, network equipment, and other typical standard office needs.  

4)

The new rooms shall be constructed with full-height doors, frames, and glass sidelights, consistent with the finishes for the pre-existing offices.

5)

All new building standard carpet tiles (▇▇▇▇ Contract Carpet Tiles - Style: Stipple (5T116); Color: Graphite (13510)) shall be installed throughout the office areas of the entire third floor.  The flooring in the reception area and break room shall be polished concrete or ▇▇▇▇▇▇▇▇▇ LVT or similar product.

6)

All new paint as needed throughout the entire third floor.  Walls shall primarily be painted white, with accent colors for selected walls.

7)

The existing ceiling lighting, grid and tiles shall remain, with the cleaning, repair, or replacement of any damaged or stained ceiling tiles so that the ceiling grid looks in good condition.

8)

The existing exterior window blinds shall remain, with the cleaning, repair, or replacement of any damaged or stained window blinds so that the window blinds look in good condition.

9)

The Break Room shall be redesigned with new cabinetry, sink with garbage disposal, two dishwashers, and electrical to accommodate Tenant’s appliances.  The flooring in the Break Room shall be polished concrete or ▇▇▇▇▇▇▇▇▇ LVT or similar product.

10)

3 IT Rooms – There are 3 IT Rooms (2 located on the 3rd Floor and 1 located on the 2nd Floor), and each shall be equipped with 24/7 Cooling

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sized to Tenant’s current needs. Additionally, on both the 2nd Floor and 3rd Floor shall each have 1 dedicated circuit connected to the Building’s emergency power system.

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NOTICE:

THIS SUBORDINATION AGREEMENT RESULTS IN YOUR SECURITY INTEREST IN THE PROPERTY BECOMING SUBJECT TO AND OF LOWER PRIORITY THAN THE LIEN OF SOME OTHER OR LATER SECURITY INSTRUMENT.

A.

Pursuant to the terms and provisions of a lease dated February 23, 2015, as amended by that certain First Amendment dated August 26, 2015 and that certain Second Amendment dated June 27, 2017 (as amended, the "Lease"), Mortgagor granted to Tenant a leasehold estate in and to a portion of the property described on Exhibit A attached hereto and incorporated herein by this reference (which property, together with all improvements now or hereafter located on the property, is defined as the "Property").

B.

Mortgagor has executed that certain deed of trust dated July 13, 2010, to American Securities Company, as Trustee, in favor of Lender, as Beneficiary, and recorded on July 16, 2010, as Instrument Number 2010-078058, in the Official Records of San Mateo County, California ("Security Instrument") securing, among other things, that certain Promissory Note Secured by Deed of Trust dated July 13, 2010 ("Note") in the principal sum of TWENTY-FOUR MILLION and NO/100THS DOLLARS ($24,000,000.00), in favor of Lender ("Loan").  

C.

Mortgagor and Tenant have agreed to the subordination, attornment and other agreements herein in favor of Lender.

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1.

SUBORDINATION.  Mortgagor and Tenant hereby agree that:

1.1

Prior Lien.  The Security Instrument securing the Note in favor of Lender, and any modifications, renewals or extensions thereof (including, without limitation, any modifications, renewals or extensions with respect to any additional advances made subject to the Security Instrument), shall unconditionally be and at all times remain a lien on the Property prior and superior to the Lease [and the Option To Purchase];

1.2

Subordination.  Lender would not make the Loan without this agreement to subordinate; and

1.3

Whole Agreement.  This Agreement shall be the whole agreement and only agreement with regard to the subordination of the Lease [and the Option To Purchase] to the lien of the Security Instrument and shall supersede and cancel, but only insofar as would affect the priority between the Security Instrument and the Lease [and the Option To Purchase], any prior agreements as to such subordination, including, without limitation, those provisions, if any, contained in the Lease which provide for the subordination of the Lease [and the Option To Purchase] to a deed or deeds of trust or to a mortgage or mortgages.

1.4

Use of Proceeds.  Lender, in making disbursements pursuant to the Note, the Security Instrument or any loan agreements with respect to the Property, is under no obligation or duty to, nor has Lender represented that it will, see to the application of such proceeds by the person or persons to whom Lender disburses such proceeds, and any application or use of such proceeds for purposes other than those provided for in such agreement or agreements shall not defeat this agreement to subordinate in whole or in part; and

1.5

Waiver, Relinquishment and Subordination.  Tenant intentionally and unconditionally waives, relinquishes and subordinates all of Tenant's right, title and interest in and to the Property to the lien of the Security Instrument and understands that in reliance upon, and in consideration of, this waiver, relinquishment and subordination, specific loans and advances are being and will be made by Lender and, as part and parcel thereof, specific monetary and other obligations are being and will be entered into which would not be made or entered into but for said reliance upon this waiver, relinquishment and subordination.

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2.

ASSIGNMENT.  Tenant acknowledges and consents to the assignment of the Lease by Mortgagor in favor of Lender.

3.

ESTOPPEL.  Tenant acknowledges and represents that:

3.1

Entire Agreement.  The Lease constitutes the entire agreement between Mortgagor and Tenant with respect to the Property and Tenant claims no rights with respect to the Property other than as set forth in the Lease;

3.2

No Prepaid Rent.  No deposits or prepayments of rent have been made in connection with the Lease, except as follows (if none, state "None"):  None;

3.3

No Default.  To Tenant's knowledge without duty of inquiry, as of the date hereof:  (i) there exists no breach, default, or event or condition which, with the giving of notice or the passage of time or both, would constitute a breach or default under the Lease; and (ii) there are no existing claims, defenses or offsets against rental due or to become due under the Lease;

3.4

Lease Effective.  The Lease has been duly executed and delivered by Tenant and, subject to the terms and conditions thereof, the Lease is in full force and effect, the obligations of Tenant thereunder are valid and binding and there have been no further amendments, modifications or additions to the Lease, written or oral; and

3.5

No Broker Liens.  Neither Tenant nor Mortgagor has incurred any fee or commission with any real estate broker which would give rise to any lien right under state or local law, except as follows (if none, state "None"):  Commissions to the brokers identified in the Second Amendment payable by Mortgagor.

4.

ADDITIONAL AGREEMENTS.  Tenant covenants and agrees that, during all such times as Lender is the Beneficiary under the Security Instrument:

4.1

Modification, Termination and Cancellation.  Except  as provided for in the Lease, Tenant will not consent to any modification, amendment, termination or cancellation of the Lease (in whole or in part) without Lender's prior written consent and will not make any payment to Mortgagor in consideration of any modification, termination or cancellation of the Lease (in whole or in part) without Lender's prior written consent;

4.2

Notice of Default.  Tenant will notify Lender in writing concurrently with any notice given to Mortgagor of any default by Mortgagor under the Lease, and Tenant agrees that Lender has the right (but not the obligation) to cure any breach or default specified in such notice within the time periods set forth below and Tenant will not declare a default of the Lease, as to Lender, if Lender cures such default within fifteen (15) days from and after the

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expiration of the time period provided in the Lease for the cure thereof by Mortgagor ; provided, however, that if such default cannot with diligence be cured by Lender within such fifteen (15) day period, the commencement of action by Lender within such fifteen (15) day period to remedy the same shall be deemed sufficient so long as Lender pursues such cure with diligence;

4.3

No Advance Rents. Tenant will make no payments or prepayments of rent more than one (1) month in advance of the time when the same become due under the Lease;

4.4

Assignment of Rents. Upon receipt by Tenant of written notice from Lender that Lender has elected to terminate the license granted to Mortgagor to collect rents, as provided in the Security Instrument, and directing the payment of rents by Tenant to Lender, Tenant shall comply with such direction to pay and shall not be required to determine whether Mortgagor is in default under the Loan and/or the Security Instrument.

4.5

Insurance and Condemnation Proceeds.  In the event there is any conflict between the terms in the Security Instrument and the Lease regarding the use of insurance proceeds or condemnation proceeds with respect to the Property, the provisions of the Security Instrument shall control.

5.

ATTORNMENT.  In the event of a foreclosure under the Security Instrument, Tenant agrees for the benefit of Lender (including for this purpose any transferee of Lender or any transferee of Mortgagor's title in and to the Property by Lender's exercise of the remedy of sale by foreclosure under the Security Instrument) as follows:

5.1

Payment of Rent.  Tenant shall pay to Lender all rental payments required to be made by Tenant pursuant to the terms of the Lease for the duration of the term of the Lease;

5.2

Continuation of Performance.  Tenant shall be bound to Lender in accordance with all of the provisions of the Lease for the balance of the term thereof, and Tenant hereby attorns to Lender as its landlord, such attornment to be effective and self-operative without the execution of any further instrument immediately upon Lender succeeding to Mortgagor's interest in the Lease and giving written notice thereof to Tenant;

5.3

No Offset.  Lender shall not be liable for, nor subject to, any offsets or defenses which Tenant may have by reason of any act or omission of Mortgagor under the Lease, nor for the return of any sums which Tenant may have paid to Mortgagor under the Lease as and for security deposits, advance rentals or otherwise, except to the extent that such sums are actually delivered by Mortgagor to Lender; and

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5.4

Subsequent Transfer.  If Lender, by succeeding to the interest of Mortgagor under the Lease, should become obligated to perform the covenants of Mortgagor thereunder, then, upon any further transfer of Mortgagor's interest by Lender, all of such obligations shall terminate as to Lender.

5.5

Limitation on Lender’s Liability.  Tenant agrees to look solely to Lender’s interest in the Property and the rent, income or proceeds derived therefrom for the recovery of any judgment against Lender, and in no event shall Lender or any of its affiliates, officers, directors, shareholders, partners, agents, representatives or employees ever be personally liable for any such obligation, liability or judgment.

5.6

No Representation, Warranties or Indemnities.  Lender shall not be liable with respect to any representations, warranties or indemnities from Mortgagor, whether pursuant to the Lease or otherwise, including, but not limited to, any representation, warranty or indemnity related to the use of the Property, compliance with zoning, landlord’s title, landlord’s authority, habitability or fitness for purposes or commercial suitability, or hazardous wastes, hazardous substances, toxic materials or similar phraseology relating to the environmental condition of the Property or any portion thereof.

6.

NON-DISTURBANCE.  In the event of a foreclosure under the Security Instrument, so long as there shall then exist no breach, default, or event of default beyond any applicable notice and cure period on the part of Tenant under the Lease, Lender agrees for itself and its successors and assigns that the leasehold interest of Tenant under the Lease shall not be extinguished or terminated by reason of such foreclosure, but rather the Lease shall continue in full force and effect and Lender shall recognize and accept Tenant as tenant under the Lease subject to the terms and provisions of the Lease except as modified by this Agreement; provided, however, that Tenant and Lender agree that the following provisions of the Lease (if any) shall not be binding on Lender nor its successors and assigns:  any option to purchase with respect to the Property; and any right of first refusal with respect to the Property.

7.

MISCELLANEOUS.

7.1

Remedies Cumulative.  All rights of Lender herein to collect rents on behalf of Mortgagor under the Lease are cumulative and shall be in addition to any and all other rights and remedies provided by law and by other agreements between Lender and Mortgagor or others.

7.2

NOTICES.  All notices, demands, or other communications under this Agreement and the other Loan Documents shall be in writing and shall be delivered to the appropriate party at the address set forth below (subject to change from time to time by written notice to all other parties to this Agreement). All notices, demands or other communications shall be considered as properly given if delivered personally or sent by first class

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United States Postal Service mail, postage prepaid, or by Overnight Express Mail or by overnight commercial courier service, charges prepaid, except that notice of Default may be sent by certified mail, return receipt requested, charges prepaid.  Notices so sent shall be effective three (3) Business Days after mailing, if mailed by first class mail, and otherwise upon delivery or refusal; provided, however, that non-receipt of any communication as the result of any change of address of which the sending party was not notified or as the result of a refusal to accept delivery shall be deemed receipt of such communication.  For purposes of notice, the address of the parties shall be:

Mortgagor:

Diamond Marina LLC and Diamond ▇▇▇▇▇▇ ▇▇ LLC

▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇

▇▇▇▇▇▇▇▇,  ▇▇  ▇▇▇▇▇

Attention:  ▇▇▇▇▇▇ ▇▇▇▇▇▇▇

Tenant:

Aimmune Therapeutics, Inc.

▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇

▇▇▇▇▇ ▇▇▇

▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇

Attention:  General Counsel

Lender:

▇▇▇▇▇ Fargo Bank, National Association

CRE San Francisco (AU #02034)

▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇

▇▇▇ ▇▇▇▇▇▇▇▇▇,  ▇▇  ▇▇▇▇▇

Attention:  ▇▇▇ ▇▇▇▇▇▇▇

Loan #:  1002751

With a copy to:

▇▇▇▇▇ Fargo Bank, National Association

Minneapolis Loan Center

▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇

▇▇▇▇▇▇▇▇▇▇▇,  ▇▇  ▇▇▇▇▇

Attention:  ▇▇▇▇▇ ▇▇▇▇▇▇▇

7.3

Heirs, Successors and Assigns.  Except as otherwise expressly provided under the terms and conditions herein, the terms of this Agreement shall bind and inure to the benefit of the heirs, executors, administrators, nominees, successors and assigns of the parties hereto.

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7.4

Headings.  All article, section or other headings appearing in this Agreement are for convenience of reference only and shall be disregarded in construing this Agreement.

7.5

Counterparts.  To facilitate execution, this document may be executed in as many counterparts as may be convenient or required.  It shall not be necessary that the signature of, or on behalf of, each party, or that the signature of all persons required to bind any party, appear on each counterpart.  All counterparts shall collectively constitute a single document.  It shall not be necessary in making proof of this document to produce or account for more than a single counterpart containing the respective signatures of, or on behalf of, each of the parties hereto.  Any signature page to any counterpart may be detached from such counterpart without impairing the legal effect of the signatures thereon and thereafter attached to another counterpart identical thereto except having attached to it additional signature pages.

7.6

Exhibits, Schedules and Riders.  All exhibits, schedules, riders and other items attached hereto are incorporated into this Agreement by such attachment for all purposes.

"MORTGAGOR"

DIAMOND MARINA LLC,

A California limited liability company

By:

/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇

Name:

▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇

Title:

Manager

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"MORTGAGOR"

DIAMOND ▇▇▇▇▇▇ ▇▇ LLC,

A California limited liability company

By:

/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇

Name:

▇▇▇▇▇▇ ▇▇▇▇▇▇▇

Title:

Manager

"TENANT"

AIMMUNE THERAPEUTICS, INC.,

A Delaware corporation

By:

/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇

Name:

▇▇▇▇ ▇▇▇▇▇▇▇▇▇

Title:

CFO

"LENDER"

▇▇▇▇▇ FARGO BANK, N.A.

BY:

Name:

D. ▇▇▇ ▇▇▇▇▇▇▇

Title:

Senior Vice President

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A.

FROM ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, RECORDED SEPTEMBER 14, 1959, IN BOOK 3670, OF OFFICIAL RECORDS AT PAGE 624, DOCUMENT NO. 86272-R.

B.

FROM ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ALSO KNOWN AS ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, RECORDED SEPTEMBER 14, 1959, IN BOOK 3670 OF OFFICIAL RECORDS AT PAGE 625, DOCUMENT NO. 86273-R.

C.

FROM ▇▇▇▇▇▇ ▇▇▇▇▇▇, RECORDED SEPTEMBER 14, 1959 IN BOOK 3670 OF OFFICIAL RECORDS AT PAGE 626, DOCUMENT NO. 86274-R.

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