SECOND AMENDMENT to LEASE BETWEEN EMERY STATION JOINT VENTURE, LLC (LANDLORD) And BIONOVO, INC. (TENANT) EMERYSTATION 1 PROJECT Emeryville, California
EXHIBIT
10.2
SECOND
AMENDMENT
to
LEASE
BETWEEN
▇▇▇▇▇
STATION JOINT VENTURE, LLC (LANDLORD)
And
BIONOVO,
INC. (TENANT)
EMERYSTATION
1 PROJECT
Emeryville,
California
That
certain Lease dated July 6, 2005 by and between ▇▇▇▇▇ Station Joint Venture,
LLC, as Landlord, and BioNovo, Inc., a Delaware Corporation,
(successor-in-interest to both BioNovo, Inc. and to Lighten Up Enterprises
International, Inc, which companies were joint and several tenants under the
original Lease), as such Lease was amended by First Amendment thereto dated
November 4, 2005 (the original Lease and First Amendment thereto being referred
to herein as “the Lease”), is hereby further amended as follows:
|
I.
|
The
Premises currently measure 3,226 rentable square feet. Pursuant to
the
terms herein, that space shall be expanded to include the additional
space
on the third floor more specifically depicted on Exhibit A attached
hereto. This new space, hereinafter referred to as the “Expansion Space”,
measures 6,135 rentable square feet. The original space of 3,226
rentable
square feet and the Expansion Space of 6,135 rentable square feet,
together measuring 9,361 rentable square feet, shall hereinafter
be
considered “the Premises” for purposes of the Lease, as
amended.
|
|
II.
|
The
Term of the Lease for the entirety of the Premises (original space
plus
Expansion Space) shall be extended such that the new expiry date
shall be
a full four (4) years following the Substantial Completion of tenant
improvements to the Expansion Space (the “Expansion Space Substantial
Completion Date”), subject to Tenant Delay. For example, if the Expansion
Space Substantial Completion Date occurs 8/31/2006, the Lease Term
shall
be extended so that its new maturity will be 8/31/2010.
|
|
III.
|
Monthly
Triple Net Base Rent applicable to the Expansion Premises shall be
as
follows:
|
Months
1
- 12 $18,589.05 ($3.03/rentable
sq.ft./month * 6,135 rentable sq.ft.)
Month
1
commences upon the Expansion Space Substantial Completion Date, subject to
Tenant Delay. Tenant shall pay the first month’s Monthly Triple Net Base Rent
for the Expansion Space to Landlord within five (5) days of the signing
hereof.
At
the
beginning of the first calendar day of the month that falls closest to the
start
of the thirteenth month following the Expansion Space Substantial Completion
Date, and annually thereafter, this Monthly Triple Net Base Rent shall be
increased by three percent (3%).
In
addition to Triple Net Base Rent, Tenant’s obligation to pay Operating Expenses
and Taxes applicable to the Expansion Space commences upon the Expansion Space
Substantial Completion Date and will be estimated and paid pursuant to the
terms
of the existing Lease.
Because
the term of the original 3,226 rentable square foot space is being extended
beyond its existing September 23, 2009 expiry date pursuant to Section II
hereof, the Monthly Triple Net Base Rent applicable to both that original space
and to the Expansion Space during the Lease
Term
beyond September 23, 2009 shall be calculated at the rates per square foot
described in this Section III.
| IV. |
Tenant
will accept the Expansion Space in its as-is condition, subject to
the
installation of tenant improvements therein. Tenant Improvements
to the
Expansion Space will be made pursuant to the terms of the Workletter
attached hereto.
|
|
V.
|
The
existing Security Deposit under the Lease shall be increased by $60,938.27
(the increase meant to represent three (3) month’s base rent on the
Expansion Premises at the rental rate per square foot applicable
to
Tenant’s last lease year). This increased Security Deposit amount will be
remitted to landlord within five (5) business days of the execution
of
this Second Amendment.
|
|
VI.
|
The
amount of unreserved parking spaces available to Tenant under the
lease,
after addition of the Expansion Space to the Premises, shall be increased
to a total of twenty-eight (28) spaces. Rates and terms for parking
shall
be as described in Section 2.5 of the base
lease.
|
|
VII.
|
Tenant
hereby represents to Landlord that it has represented itself in this
transaction and that no brokerage fee shall be due and payable by
Landlord
to any representative of itself as a result
hereof.
|
|
VIII.
|
Except
for those terms outlined above, all other terms and conditions of
the
existing Lease shall apply.
|
In
witness hereof, the parties have executed this Second Amendment as of the date
noted below.
|
TENANT:
|
LANDLORD:
|
|
BioNovo,
Inc., a Delaware Corporation.
|
▇▇▇▇▇
Station Joint Venture, LLC, a
California
Limited Liability Company
|
|
By:__________________________________
|
By:_________________________________
|
|
Print
Name:___________________________
|
Print
Name:__________________________
|
|
Its:__________________________________
|
Its:_________________________________
|
|
Dated:
|
Dated:
|
EXHIBIT
B
WORKLETTER
AGREEMENT
(Allowance)
This
Workletter Agreement ("Workletter") is attached to and a part of a certain
Second Amendment executed concurrently herewith by ▇▇▇▇▇ Station Joint Venture,
LLC, a California limited liability company, as Landlord, and BioNovo, Inc,
a
Delaware Corporation, as Tenant, for the Expansion Space as described therein
(the "Lease").
1.
Defined
Terms.
Capitalized terms used in this Workletter shall have the same meanings set
forth
in the Lease except as otherwise specified herein and except for terms
capitalized in the ordinary course of punctuation. For purposes of this
Workletter the following capitalized terms have the following
meanings:
1.1. "Design
Documents" means the layout plans and specifications for the real property
improvements to be constructed by Landlord in the Premises which are the final
product of the preliminary space planning and which (i) include, among other
things, all partitions, doors, HVAC (heating, ventilating and air conditioning
systems) distribution, ceiling systems, light fixtures, plumbing installations,
electrical installations and outlets, telephone installations and outlets,
any
other installations required by Tenant, fire and life-safety systems, wall
finishes and floor coverings, whether to be newly installed or requiring changes
from the as-is condition of the Premises as of the date of execution of the
Lease, all in sufficient detail for Landlord to commence preparation of the
Construction Drawings (defined below); and (ii) comply with all Law as
applicable and as interpreted at the time of construction of the Tenant
Improvements (defined below), including, all building codes and the ADA (defined
in the Lease);
1.2 "Construction
Drawings" means the final architectural plans and specifications, and
engineering plans and specifications, for the real property improvements to
be
constructed by Landlord in the Premises in sufficient detail to be submitted
for
governmental approvals and building permits and to serve as the detailed
construction drawings and specifications for the contractor, and shall (i)
include, among other things, all partitions, doors, HVAC (heating, ventilating
and air conditioning systems) distribution, ceiling systems, light fixtures,
plumbing installations, electrical installations and outlets, telephone
installations and outlets, any other installations required by Tenant, fire
and
life-safety systems, wall finishes and floor coverings, whether to be newly
installed or requiring changes from the as-is condition of the Premises as
of
the date of execution of the Lease; and (ii) comply with all Law as applicable
and as interpreted at the time of construction of the Tenant Improvements
(defined below), including all building codes and the ADA;
1.3 "Tenant
Improvements" means all real property improvements to be constructed by Landlord
as shown on the Construction Drawings, as they may be modified as provided
herein; and
1.4 "Landlord
Work" means the construction and installation of the Tenant Improvements.
2. Design
Matters.
2.1. Landlord,
through its architects and/or space planners ("Landlord's Architect"), shall
prepare the Design Documents and the Construction Drawings, as they may be
modified as provided herein, in accordance with the design specified by Tenant
and reasonably approved by Landlord.
2.2. Tenant
shall be responsible for the suitability for the Tenant's needs and business
of
the design and function of all Tenant Improvements. Tenant, at its own expense,
shall devote such time and provide such instructions as may be necessary to
enable Landlord to complete the matters described below, and Tenant shall
approve such matters, within the times described below:
(a) Tenant's
written approval of the Design Documents within ten (10) business days of the
signing of the Second Amendment; and
(b) Tenant's
written approval of a nonbinding preliminary estimate ("Landlord's Preliminary
Estimate") provided by Landlord of the cost of the Tenant Improvements shown
on
the Design Documents within five (5) business days after receipt of such
estimate as well as deposit with Landlord any Tenant’s Estimates Overage, as
more fully described in Section 4 below; and
(c) Tenant's
written approval of the Construction Drawings within five (5) business days
of
receipt of them from Landlord’s architect.
3. Construction;
Landlord’s Contribution; Tenant Improvement Costs.
3.1. Construction;
Landlord's Contribution.
Landlord, through its contractor, shall complete the construction of the Tenant
Improvements in a good and workmanlike manner, up to a maximum cost to Landlord
of $536,812.50 (equal $87.50 per rentable square foot of Expansion Space.
("Landlord's Maximum Contribution").
3.2. Tenant
Improvement Costs.
The
cost of the Tenant Improvements ("Tenant Improvement Costs") to be paid by
Landlord from, but not in excess of, Landlord's Maximum Contribution shall
include:
(a) The
costs of Landlord's Architect and any other consultants retained by Landlord
in
connection with the preparation of Design Documents and Constructions Drawings,
and engineering costs associated with completion of the State of California
energy utilization calculations under Title 24 legislation;
(b) All
costs of obtaining from the City of Emeryville and any other governmental
authority, approvals, building permits and occupancy permits, if
any;
(c) All
costs of interior design and finish schedule plans and specifications including
as-built drawings;
(d) All
direct and indirect costs of procuring, installing and constructing the Tenant
Improvements, including: (i) the construction fee for overhead and profit and
the cost of all on-site supervisory and administrative staff, office, equipment
and temporary services rendered or provided by Landlord's contractor in
connection with construction of the Tenant Improvements; and (ii) the cost
of
any services or utilities made available by Landlord;
(e) Without
limiting the generality of the foregoing, the Tenant Improvement Costs include
all costs of designing, procuring, constructing and installing Tenant
Improvements in compliance with Law as applicable and as interpreted at the
time
of construction of the Tenant Improvements, including with all building codes
and the ADA; and
(f) All
fees payable to Landlord's architectural and engineering firm if it is required
by Tenant to redesign any portion of the Tenant Improvements following Tenant's
approval of the Construction Drawings, and all costs in connection with any
approved Change Order in accordance with the provisions of this
Workletter.
In
no
event shall the Tenant Improvement Costs include (i) any costs of procuring
or
installing in the Premises any trade fixtures, equipment, furniture,
furnishings, telephone equipment, cabling for any of the foregoing, or other
personal property ("Personal Property") to be used in the Premises by Tenant,
and the cost of such Personal Property shall be paid by Tenant, or (ii) any
costs or expenses of any consultants retained by Tenant with respect to design,
procurement, installation or construction of improvements or installations,
whether real or personal property, for the Premises.
3.3. Limitations
of Landlord's Obligations.
Upon
Substantial Completion of the Tenant Improvements, Landlord shall have no
further obligation to construct improvements or construct
modifications
to or changes in the Tenant Improvements, except to complete the punchlist
of
Landlord Work remaining to be completed or correct any part thereof not in
compliance with the Construction Drawings and any approved modifications
thereof, as provided in the Lease. If Landlord's Maximum Contribution exceeds
the Tenant Improvement Costs, then Landlord agrees to credit Tenant the amount
of such savings ratably against Tenant’s Monthly Base Triple Net Rent over the
four (4) year term.
4. Costs
of Tenant Improvements in Excess of Landlord’s Maximum
Contribution.
In
advance of, and as a prerequisite to, Landlord’s commencing of construction of
the Tenant Improvements, Tenant must deposit with Landlord cash covering any
amount by which Landlord’s Preliminary Estimate exceeds an amount equal to
$97.50 per rentable square foot of Expansion Space (i.e. $598,162.50, the total
of Landlord’s Maximum Contribution and Landlord’s Additional Amortized tenant
Allowance, as each is more fully defined below). Any such amount so paid shall
be referred to as “Tenant’s Estimated Overage”. Failure by Tenant to make this
payment within five (5) business days of receiving Landlord’s Preliminary
Estimate shall constitute a Tenant Delay as defined in the Lease and in this
Workletter.
As
soon
as reasonably available after substantial completion of the Tenant Improvements,
Landlord shall notify Tenant in writing of the costs, if any, of the Tenant
Improvements in excess of the Landlord's Maximum Contribution (such notification
shall be referred to as "Landlord's Actual Cost Statement"). Within five (5)
business days after receipt of Landlord's Actual Cost Statement, Tenant shall
give Landlord a good check made payable to the order of Landlord in the amount
of the excess cost of the Tenant Improvements over the sum of: a) Landlord's
Maximum Contribution, and b) Tenant’s Estimated Overage. Tenant can elect to
have Landlord cover the first costs above Landlord’s Maximum Contribution up to
a maximum amount equal to $10 per rentable square foot of Expansion Space,
namely $61,350.00 (“Additional Amortized Tenant Improvement Allowance”). Any
amount of such Additional Amortized Tenant Improvement Allowance will be
amortized monthly over the four years following substantial completion of the
Expansion Space at an annual interest rate of 9.5%. In such authorization,
Tenant may, pursuant to the provisions of this Workletter, request a Change
Order (defined below) to the approved Construction Drawings to reduce or delete
all or part of such excess costs, but any delay in completion of the Premises
resulting from such request for a Change Order or from the changes so made
or
necessitated shall be chargeable as Tenant Delay. If such written authorization
and check (if applicable) are not received by Landlord, Landlord shall not
be
obligated to commence work on the Premises and any resulting delay in the
completion of the Premises shall be chargeable against Tenant as Tenant delay
as
provided in Section 6 of this Workletter and in the Lease.
5. Changes.
If
Tenant shall request any change, addition or alteration in the approved
Construction Drawings, Landlord shall promptly give Tenant a written estimate
of
(a) the cost of engineering and design services and the construction contractor
services to prepare a change order (the "Change Order") in accordance with
such
request, (b) the cost of work to be performed pursuant to such Change Order,
and
(c) the time delay expected because of such requested Change Order. Within
three
(3) business days following Tenant's receipt of the foregoing written estimate,
Tenant shall notify Landlord in writing whether it approves such written
estimate. If Tenant approves such written estimate and if such cost is in excess
of Landlord's Maximum Contribution, Tenant shall accompany such approval with
a
good check made payable to the order of Landlord in the amount of the estimated
cost of preparing the Change Order and performing the work thereto, and the
foregoing shall constitute Landlord's authorization to proceed. If such written
authorization, and check if required, are not received by Landlord within such
three (3) business day period, Landlord shall not be obligated to prepare the
Change Order or perform any work in connection therewith. Upon completion of
the
work of the Change Order and submission of the final cost thereof by Landlord
to
Tenant, Tenant shall promptly pay to Landlord any such additional amounts in
excess of Landlord's Maximum Contribution.
6. Tenant
Delay.
If the
Substantial Completion of the Tenant Improvements in the Premises is delayed
due
to Tenant Delay (defined in the Lease), then Tenant shall be responsible for
all
costs and any expenses occasioned by such delay, including any costs and
expenses attributable to increases in labor or materials, and the provisions
of
Article Two of the Lease shall apply.
7. Entry
by Tenant.
Tenant
may, with Landlord's written consent, which will not unreasonably be withheld,
enter the Premises during construction and prior to the Commencement Date for
the Premises solely for the purpose of installing Tenant's Personal Property
(defined in Section 3.2 above) as
long
as
such entry will not interfere with the timely and orderly construction and
completion of the Premises. Tenant shall notify Landlord of its desired time(s)
of entry and shall submit for Landlord's approval the scope of the work to
be
performed and the name(s) of the contractor(s) who will perform such work.
Such
work and such contractors shall be subject to Landlord's approval in the same
manner as for work subject to Section 9.01(a) of the Lease. Such entry shall
be
without payment of Base Monthly Rent or Rent Adjustments, but such entry and
all
acts and omissions in connection with it are subject to and governed by all
other provisions of the Lease, including Tenant's indemnification obligations,
insurance obligations, obligations under Article Seven and the provisions of
Section 9.02.
8. Force
and Effect.
The
terms and conditions of this Workletter supplement the Lease and shall be
construed to be a part of the Lease and are incorporated in the Lease. Without
limiting the generality of the foregoing, any default by any party hereunder
shall have the same force and effect as a default under the Lease. Should any
inconsistency arise between this Workletter and the Lease as to the specific
matters that are the subject of this Workletter, the terms and conditions of
this Workletter shall control.
IN
WITNESS WHEREOF, the parties hereto have executed this Workletter as of the
date
first set forth in the Lease.
|
TENANT:
BIONOVO,
INC.,
a
Delaware Corporation
By:______________________________________
Print
Name:________________________________
Its:______________________________________
By:______________________________________
Print
Name:________________________________
Its:______________________________________
|
LANDLORD:
▇▇▇▇▇
STATION JOINT VENTURE, LLC,
a
California limited liability company
By:_________________________________________
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇, Managing Member
|