California-Marina del Rey-4503 Glencoe Avenue Lease [Amendment No. 1] - EOP-Marina Business Center LLC and CancerVax Corp.
FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE (this "Amendment") is made and entered
into as of the 1st day of October, 2001, by and between EOP - MARINA BUSINESS
CENTER, L.L.C., A DELAWARE LIMITED LIABILITY COMPANY ("Landlord"), and CANCERVAX
CORPORATION, A DELAWARE CORPORATION ("Tenant").
RECITALS
A. Landlord (as successor in interest to Spieker Properties, L.P., a
California limited partnership) and Tenant (as successor in interest to
John Wayne Cancer Institute, a non-profit corporation) are parties to
that certain lease dated July 22, 1999 (the "Lease"). Pursuant to the
Lease, Landlord has leased to Tenant space currently containing
approximately 25,600 rentable square feet (the "Original Premises")
described as Suite No. 100 on the first floor and mezzanine of the
building located at 4503 Glencoe Avenue, Marina del Rey, California
(the "Building").
B. Tenant has requested that additional space containing approximately
25,150 rentable square feet described as Suite No. 150 on the first
floor and mezzanine of the Building shown on EXHIBIT A hereto (the
"Expansion Space") be added to the Original Premises and that the Lease
be appropriately amended and Landlord is willing to do the same 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:
I. EXPANSION AND EFFECTIVE DATE. Retroactively Effective as of September
10, 2001 (the "Expansion Effective Date), the Premises, as defined in
the Lease, is increased from approximately 25,600 rentable square feet
on the first floor and mezzanine to approximately 50,750 rentable
square feet on the first floor and mezzanine by the addition of the
Expansion Space, and from and after the Expansion Effective Date, the
Original Premises and the Expansion Space, collectively, shall be
deemed the Premises, as defined in the Lease. For purposes of the
Lease, as amended hereby, the "rentable square feet" of the Premises
shall as of the Expansion Effective Date be deemed to be 50,750
rentable square feet and shall not be subject to remeasurement or
modification. The term for the Expansion Space (the "Expansion Term")
shall commence on the Expansion Effective Date and end on the Scheduled
Term Expiration Date of August 14, 2009, as set forth in the Lease. The
Expansion 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 Premises unless such
concessions are expressly provided for herein with respect to the
Expansion Space.
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II. BASE RENT. In addition to Tenant's obligation to pay Base Rent for the
Original Premises, Tenant shall pay Landlord Base Rent for the
Expansion Space as follows:
<TABLE>
<CAPTION>
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MONTHLY RATE
PER RENTABLE ANNUAL MONTHLY
PERIOD OF THE TERM SQUARE FOOT BASE RENT BASE RENT
--------------------------------------------------------------------------------
<S> <C> <C> <C>
September 10, 2001 - $1.28 __________ $22,534.40
September 30, 2001
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October 1, 2001 - $1.28 $ 386,304.00 $32,192.00
August 14, 2002
--------------------------------------------------------------------------------
August 15, 2002 - $1.33 $ 401,394.00 $33,449.50
August 14, 2003
--------------------------------------------------------------------------------
August 15, 2003 - $1.38 $ 416,484.00 $34,707.00
August 14, 2004
--------------------------------------------------------------------------------
August 15, 2004 - $1.43 $ 431,574.00 $35,964.50
August 14, 2005
--------------------------------------------------------------------------------
August 15, 2005 - $1.48 $ 446,664.00 $37,222.00
August 14, 2006
--------------------------------------------------------------------------------
August 15, 2006 - $1.53 $ 461,754.00 $38,479.50
August 14, 2007
--------------------------------------------------------------------------------
August 15, 2007 - $1.58 $ 476,844.00 $39,737.00
August 14, 2008
--------------------------------------------------------------------------------
August 15, 2008 - $1.63 $ 491,934.00 $40,994.50
August 14, 2009
--------------------------------------------------------------------------------
</TABLE>
All such Base Rent shall be payable by Tenant in accordance with the
terms of Section 6.A of the Lease, provided that upon Tenant's
execution and delivery of this Amendment to Landlord, Tenant shall pay
to Landlord the Base Rent for the Expansion Space for the period of
September 10-30, 2001.
Landlord and Tenant acknowledge that the foregoing schedule is based on
the assumption that the Expansion Effective Date is September 10, 2001.
If the Expansion Effective Date is other than September 10, 2001, the
schedule set forth above with respect to the payment of any
installment(s) of Base Rent for the Expansion Space shall be
appropriately adjusted on a per diem basis to reflect the actual
Expansion Effective Date, and the actual Expansion Effective Date shall
be set forth in a confirmation letter to be prepared by Landlord.
However, the effective date of any increases or decreases in the Base
Rent rate shall not be postponed as a result of an adjustment of the
Expansion Effective Date as provided above.
III. ADDITIONAL SECURITY DEPOSIT. Upon Tenant's execution and delivery of
this Amendment to Landlord, Tenant shall pay Landlord the sum of
$503,000.00 (the "Additional Security") which shall be added to and
become part of the Security Deposit required pursuant to Article 19 of
the Lease, provided that Tenant shall have the right to instead deliver
such Additional Security to Landlord in the form of an amendment to the
existing Letter of Credit previously provided by Tenant to Landlord
pursuant to Section 39.G of the Lease (the "Existing L-C"), and in such
event the terms of Article 19 and Section 39.G of the Lease, as amended
by this Amendment, shall apply. In the event that Tenant elects to
deliver the Additional Security to Landlord in the form of an amendment
to the Existing L-C, then Tenant shall deliver the amendment to the
Existing L-C to Landlord within 5 days following Tenant's execution and
delivery of this Amendment to Landlord. The Additional Security shall
constitute additional security for payment of Rent and the performance
of the other terms and conditions of the Lease, as amended, by Tenant.
Accordingly, simultaneous with Tenant's execution and delivery of this
Amendment to Landlord, the Security Deposit is increased from
$275,000.00 to $778,000.00. Notwithstanding any contrary provision of
Article 19 of the Lease or Section 39.G of the Lease, provided that
Tenant is not then in default under the Lease, as amended, and provided
further that Tenant has not been in material default under the Lease,
as amended, on more than 3 occasions during the Expansion Term, the
Security Deposit required to be held by Landlord shall be reduced as
follows:
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<TABLE>
<CAPTION>
----------------------------------------------------------------------
Reduction Date Amount of Security Deposit
----------------------------------------------------------------------
<S> <C>
August 15, 2002 $653,000.00
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August 15, 2003 $553,000.00
----------------------------------------------------------------------
August 15, 2004 $453,000.00
----------------------------------------------------------------------
August 15, 2005 $403,000.00
----------------------------------------------------------------------
August 15, 2006 $353,000.00
----------------------------------------------------------------------
August 15, 2007 $303,000.00
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August 15, 2008 $253,000.00
----------------------------------------------------------------------
</TABLE>
In the event that Tenant delivers any portion of the Security Deposit
to Landlord in the form of cash, then Landlord shall determine, in
Landlord's sole discretion, whether the Letter of Credit or the cash
portion of the Security Deposit, or a combination of both, shall be
reduced pursuant to the foregoing provisions of this Section III, and
if Landlord determines that the cash portion of the Security Deposit
shall be reduced, then Landlord shall apply the amount of such
reduction against Tenant's Base Rent obligations for the next
succeeding months of the Term (until such amount has been fully
credited against Base Rent). In the event that Tenant delivers the
Additional Security to Landlord in the form of an amendment to the
Existing L-C, then the Existing L-C shall be amended so that the
beneficiary thereof is the Landlord named in this Amendment, and the
address for the Landlord shall be as stated in Section VIII.D, below.
IV. TENANT'S PROPORTIONATE SHARE OF THE BUILDING. For the period commencing
with the Expansion Effective Date and ending on the Scheduled Term
Expiration Date, Tenant's Proportionate Share of the Building is 100%.
V. OPERATING EXPENSES. For the period commencing with the Expansion
Effective Date and ending on the Scheduled Term Expiration Date, Tenant
shall pay for Tenant's Proportionate Share of the Building (as set
forth in Section IV, above) of Operating Expenses in accordance with
the terms of the Lease.
VI. IMPROVEMENTS TO EXPANSION SPACE.
A. CONDITION OF EXPANSION SPACE. Tenant has inspected the
Expansion 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
Section 10 of the Lease, this Amendment, and the work letter
("Work Letter") attached hereto as EXHIBIT B.
B. RESPONSIBILITY FOR IMPROVEMENTS TO EXPANSION SPACE. Tenant may
perform improvements to the Expansion Space in accordance with
the Work Letter attached hereto as EXHIBIT B and Tenant shall
be entitled to an improvement allowance in connection with
such work as more fully described in EXHIBIT B.
VII. EARLY ACCESS TO EXPANSION SPACE. During any period that Tenant shall be
permitted to enter the Expansion Space prior to the Expansion Effective
Date (e.g., to perform alterations or Improvements), Tenant shall
comply with all terms and provisions of the Lease, except those
provisions requiring payment of Base Rent or Additional Rent as to the
Expansion Space. If Tenant takes possession of the Expansion Space
prior to the Expansion Effective Date for any reason whatsoever (other
than the performance of work in the Expansion Space with Landlord's
prior approval), such possession shall be subject to all the terms and
conditions of the Lease and this Amendment, and Tenant shall pay Base
Rent and Additional Rent as applicable to the Expansion Space to
Landlord on a per diem basis for each day of occupancy prior to the
Expansion Effective Date.
VIII. 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:
A. OPTION TO TERMINATE. Effective as of the date hereof,
notwithstanding anything to the contrary in the Lease, the
second sentence of Section 39.D(1) of the Lease, on page 29
thereof, is hereby deleted in its entirety and is replaced
with the following: "The Termination Date' shall be September
1, 2006, subject to the following terms and conditions:". In
addition, Section 39.D(1)(c) of the Lease is hereby deleted
in its entirety and is replaced with the following:
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"(c) Tenant shall pay to Landlord concurrently with the
delivery of the Termination Notice an amount equal to the
Termination Fee (defined below). The "Termination Fee" shall
mean the sum of (i) $203,409.00 plus (ii) the unamortized
Leasing Costs (defined below) as of the Termination Date,
based upon an amortization period from the Term Commencement
Date until the Scheduled Term Expiration Date, with interest
accruing on said unamortized Leasing Costs at 10% per annum,
and (iii) the unamortized Expansion Space Leasing Costs
(defined below) as of the Scheduled Term Expiration Date,
based upon an amortization period from the Expansion Effective
Date until the Scheduled Term Expiration Date, with interest
accruing on said unamortized Expansion Space Leasing Costs at
10% per annum. The term "Leasing Costs" shall mean the sum of
(A) all costs and expenses incurred by Landlord in connection
with the Tenant Improvements for the Original Premises, and
(B) the brokerage commissions paid by Landlord in connection
with the Lease, but not the First Amendment to Lease. The term
"Expansion Space Leasing Costs" shall mean all costs and
expenses incurred by Landlord in connection with the Expansion
Space Alterations (defined in the Work Letter). Landlord
agrees to provide to Tenant (I) the total amount of the
Expansion Space Leasing Costs within 15 business days after
written request from Tenant, and (II) the amount of the
Termination Fee within 15 business days of Tenant's request
for such amount."
B. PARKING. During the Expansion Term, Tenant shall continue to
have the right, but not the obligation, to use up to 77
unreserved, non-exclusive parking spaces (the "Existing
Parking Spaces") in the parking facility servicing the Project
(the "Parking Facility"), pursuant to the terms of the Basic
Lease Information Section of the Lease and Article 37 of the
Lease. In addition to the foregoing parking rights, during the
Expansion Term, Tenant shall have the right, but not the
obligation, to use up to 75 additional unreserved,
non-exclusive parking spaces in the parking areas in the
Project on a month-to-month basis, at 100% of the prevailing
parking rate charged by Landlord from time to time for such
parking spaces (including any city taxes), in accordance with
the terms of Article 37 of the Lease. Tenant may change the
number of unreserved, non-exclusive parking passes which
Tenant elects to use rented pursuant to Article 37 of the
Lease and this Section VIII.B upon at least thirty (30) days
prior written notice to Landlord, provided that in no event
shall Tenant be entitled to use more than the amount of
unreserved, non-exclusive parking passes set forth in the
Basic Lease Information Section of the Lease and this Section
VIII.B.
C. RENEWAL OPTION. Notwithstanding anything to the contrary in
the Lease, Tenant's option to renew, as provided in Section
39.B of the Lease, shall apply to the entire Premises
(including both the Original Premises and the Expansion Space
in the aggregate), and not to only a portion thereof.
D. NOTICE ADDRESSES. Landlord's notice address in the Basic Lease
Information Section of the Lease is hereby deleted and
replaced with the following:
<TABLE>
<CAPTION>
LANDLORD: WITH A COPY TO:
<S> <C>
EOP - Marina Business Center, Equity Office Properties Trust
L.L.C. Two North Riverside Plaza
C/O Equity Office Properties Trust Suite 2100
13160 Mindanao Way, Suite 184 Chicago, Illinois 60606
Marina del Rey, California 90292 Attention: Regional Counsel - Los
Attention: Building Manager Angeles Region
</TABLE>
Tenant's notice address in the Basic Lease Information Section
of the Lease is hereby deleted and replaced with the
following:
TENANT:
CancerVax Corporation
5931 Darwin Court
Carlsbad, California 92008
Attention: General Counsel
E. ADDRESS FOR PAYMENT OF RENT AND TENANT'S BILLING ADDRESS.
Effective as of the date hereof, all rent payments shall be
made payable to the order of EQUITY
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OFFICE PROPERTIES. Landlord's Remittance Address set forth in
the Basic Lease Information Section of the Lease is hereby
deleted and replaced with the following: EOP - MARINA BUSINESS
CENTER, L.L.C., P.O. BOX 60077, DEPARTMENT 12282, LOS ANGELES,
CALIFORNIA 90060-0077. Further, Tenant's Billing Address set
forth in the Basic Lease Information Section of the Lease is
hereby deleted and replaced with the following: CancerVax
Corporation, 5931 Darwin Court, Carlsbad, California 92008,
Attention: Accounts Payable.
F. HVAC. Notwithstanding anything to the contrary in the Lease,
effective as of the date hereof, Tenant shall provide, at
Tenant's sole cost and expense, heating, ventilating and air
conditioning for the Original Premises and the Expansion
Space. In addition, Tenant shall, at Tenant's sole cost and
expense, repair, maintain, and replace any heating,
ventilating, or air conditioning system installed or
maintained by Tenant for the Original Premises or the
Expansion Space in accordance with the terms and conditions of
Article 11 of the Lease. Landlord shall have no obligation to
provide any heating, ventilating, or air conditioning for the
Original Premises or the Expansion Space. Landlord shall not
be liable, in any manner whatsoever, for and Tenant shall not
be entitled to an abatement or reduction of Rent by reason of
any failure of heating, ventilating or air conditioning for
the Original Premises or the Expansion Space, nor shall such
failure be construed as a constructive eviction or actual
eviction of Tenant. Landlord shall not be liable under any
circumstances for loss or injury or interference with Tenant's
business and/or operations through or in connection with or
incidental to any failure to furnish heating, ventilating or
air conditioning for the Original Premises or the Expansion
Space.
G. 1951.4 REMEDY. Effective as of the date hereof, the first
sentence of Section 26.B(2) of the Lease, on page 22 thereof,
is hereby deleted and is replaced with the following:
"Landlord shall have the remedy described in California Civil
Code Section 1951.4 (lessor may continue lease in effect after
lessee's breach and abandonment and recover rent as it becomes
due, if lessee has the right to sublet or assign, subject only
to reasonable limitations). Accordingly, if Landlord does not
elect to terminate this Lease on account of any default by
Tenant, Landlord may, from time to time, without terminating
this Lease, enforce all of its rights and remedies under this
Lease, including the right to recover all rent as it becomes
due."
H. DELETIONS. Effective as of the date hereof, Section 39.C of
the Lease and Exhibit D attached to the Lease are hereby
deleted in their entirety and are of no further force or
effect.
IX. 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 Original 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.
B. Except as herein modified or amended, the provisions,
conditions and terms of the Lease shall remain unchanged and
in full force and effect.
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.
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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.
[The rest of this page intentionally left blank. Signatures on the next page.]
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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:
EOP - MARINA BUSINESS CENTER, L.L.C., A
DELAWARE LIMITED LIABILITY COMPANY
By: EOP Operating Limited Partnership, a Delaware
limited partnership, its sole member
By: Equity Office Properties Trust, a Maryland
real estate investment trust, its general
partner
By: /s/ Robert E. Dezzutti
------------------------------------
Name: Robert E. Dezzutti
Title: Senior Vice President
TENANT:
CANCERVAX CORPORATION, A DELAWARE CORPORATION
By: /s/ DAVID F. HALE
--------------------------------------------
Name: DAVID F. HALE
Title: PRESIDENT & CEO
By: /s/ William LaRue
--------------------------------------------
Name: William R. LaRue
Title: SUP - CFO
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<PAGE>
EXHIBIT A
EXPANSION SPACE
[FLOOR PLAN]
[FLOOR PLAN]
EXHIBIT A
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<PAGE>
EXHIBIT B
WORK LETTER
This Exhibit is attached to and made a part of that certain First
Amendment to Lease (the "Amendment") dated as of the _________ day of September,
2001, by and between EOP - MARINA BUSINESS CENTER, L.L.C., A DELAWARE LIMITED
LIABILITY COMPANY ("Landlord") and CANCERVAX CORPORATION, A DELAWARE CORPORATION
("Tenant") for space in the Building located at 4503 Glencoe Avenue, Marina del
Rey, California.
As used in this Work Letter, the "Premises" shall be deemed to mean only the
Expansion Space, as defined in the attached Amendment.
I. ALTERATIONS AND ALLOWANCE.
A. Tenant, following the delivery of the Premises by Landlord and
the full and final execution and delivery of the Amendment to
which this Exhibit is attached and all prepaid rental and
security deposits required under such agreement, shall have
the right to perform alterations and improvements in the
Premises (the "Expansion Space Alterations"). Notwithstanding
the foregoing, Tenant and its contractors shall not have the
right to perform Expansion Space Alterations in the Premises
unless and until Tenant has complied with all of the terms and
conditions of Article 12 of the Lease and has obtained the
approval by Landlord of the final plans and specifications for
the Expansion Space Alterations (the "Plans") and the
contractors to be retained by Tenant to perform such Expansion
Space 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
premises 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. Landlord's approval of the contractors to perform
the Expansion Space Alterations shall not be unreasonably
withheld. The parties agree that Landlord's approval of the
general contractor to perform the Expansion Space Alterations
shall not be considered to be unreasonably withheld if any
such general contractor (i) does not have trade references
reasonably acceptable to Landlord, (ii) does not maintain
insurance of the type(s) and in the amount(s) as required by
Landlord, in Landlord's sole discretion, (iii) does not have
the ability to be bonded for the work in an amount of no less
than 150% of the total estimated cost of the Expansion Space
Alterations, (iv) does not provide current financial
statements reasonably acceptable to Landlord, or (v) is not
licensed as a contractor in the State of California. 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. In addition to being
responsible for the construction of the Expansion Space
Alterations, Tenant shall, at Tenant's sole cost and expense,
be responsible for the demolition and removal of any existing
improvements in the Premises or the Original Premises, to the
extent any such demolition and removal is necessary.
Notwithstanding anything to the contrary in Article 12 of the
Lease, Tenant shall not be required to pay an administration
fee in connection with Landlord's oversight of the Expansion
Space Alterations.
B. Provided Tenant is not in default, Landlord agrees to
contribute the sum of $503,000.00 ($20.00 per rentable square
foot of the Premises) (the "Allowance") toward the cost of
performing the Expansion Space Alterations in preparation of
Tenant's occupancy of the Premises. The Allowance may only be
used for (i) the cost of preparing design and construction
documents and mechanical and electrical plans for the
Expansion Space Alterations, (ii) hard costs in connection
with the Expansion Space Alterations, and (iii) consulting
fees associated with the validation of the Expansion Space
Alterations. The Allowance, less a 10% retainage (which
retainage shall be payable as part of the final draw), shall
be paid to Tenant or, at Landlord's option, to the order of
the general contractor that performs the Expansion Space
Alterations, in periodic disbursements within 30 days after
receipt of the following documentation: (i) an application for
payment and sworn statement of contractor substantially in the
form of AIA Document G-702 covering all work for which
disbursement is to be made to a date specified therein; (ii) a
certification from an AIA architect substantially in the form
of the Architect's Certificate for Payment which is located on
AIA Document G702,
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Application and Certificate of Payment; (iii) contractor's,
subcontractor's and material supplier's waivers of liens which
shall cover all Expansion Space Alterations for which
disbursement is being requested and all other statements and
forms required for compliance with the mechanics' lien laws of
the State of California, together with all such invoices,
contracts, or other supporting data as Landlord or Landlord's
mortgagee may reasonably require; (iv) a cost breakdown for
each trade or subcontractor performing the Expansion Space
Alterations; (v) plans and specifications for the Expansion
Space Alterations, together with a certificate from an AIA
architect that such plans and specifications comply in all
material respects with all laws affecting the Building,
Project and Premises; (vi) copies of all construction
contracts for the Expansion Space Alterations, together with
copies of all change orders, if any; and (vii) a request to
disburse from Tenant containing an approval by Tenant of the
work done and a good faith estimate of the cost to complete
the Expansion Space Alterations. Upon completion of the
Expansion Space Alterations, and prior to final disbursement
of the Allowance, Tenant shall furnish Landlord with: (1)
general contractor and architect's completion affidavits, (2)
full and final waivers of lien, (3) receipted bills covering
all labor and materials expended and used, (4) as-built plans
of the Expansion Space Alterations, and (5) the certification
of Tenant and its architect that the Expansion Space
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. In no
event shall Landlord be required to disburse the Allowance
more than one time per month. If the Expansion Space
Alterations exceed the Allowance, Tenant shall be entitled to
the Allowance in accordance with the terms hereof, but each
individual disbursement of the Allowance shall be disbursed in
the proportion that the Allowance bears to the total cost for
the Expansion Space Alterations, less the 10% retainage
referenced 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.
C. In no event shall the Allowance be used for the purchase of
equipment, furniture or other items of personal property of
Tenant. If Tenant does not submit a request for payment of the
entire Allowance to Landlord in accordance with the provisions
contained in this Exhibit by August 14, 2002, 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 Expansion Space
Alterations and/or Allowance.
D. Commencing on the date which shall be mutually agreed upon by
Landlord and Tenant, Tenant shall hold weekly meetings at a
reasonable time, with the architect and the contractor
retained by Tenant regarding the progress of the preparation
of Plans and the construction of the Expansion Space
Alterations, which meetings shall be held at a location
reasonably acceptable to Landlord, and Landlord and/or its
agents shall receive prior notice of, and shall have the right
to attend, all such meetings. Upon Landlord's request, certain
of "Tenant's Agents" (defined in Section F, below) shall
attend such meetings. In addition, minutes shall be taken at
all such meetings, a copy of which minutes shall be promptly
delivered to Landlord. One such meeting each month shall
include the review of the contractor's current request for
payment.
E. Tenant agrees to accept the Premises in its "as-is" condition
and configuration, it being agreed that Landlord shall not be
required to perform any work (subject to Landlord's
obligations under Article 10 of the Lease during the Expansion
Term) 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 Premises.
F. 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 Expansion Space Alterations and/or Landlord's
disapproval of all or any
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portion of any request for payment. 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 Expansion Space Alterations, and (ii) to enable
Tenant to obtain any building permit or certificate of
occupancy for the Premises.
G. Notwithstanding anything to the contrary set forth in this
Work Letter, Tenant hereby agrees that neither Landlord nor
Landlord's consultants shall be responsible for obtaining any
building permit or certificate of occupancy for the Premises
and that the obtaining of the same shall be Tenant's
responsibility.
H. This Exhibit 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, as amended, or
otherwise, or to any portion of the Original Premises or any
additions to the Premises or the Original Premises in the
event of a renewal or extension of the original Term of the
Lease, whether by any options under the Lease, as amended, or
otherwise, unless expressly so provided in the Lease or any
amendment or supplement to the Lease.
IN WITNESS WHEREOF, Landlord and Tenant have entered into this Exhibit
as of the date first written above.
LANDLORD:
EOP - MARINA BUSINESS CENTER, L.L.C., A
DELAWARE LIMITED LIABILITY COMPANY
By: EOP Operating Limited Partnership, a Delaware
limited partnership, its sole member
By: Equity Office Properties Trust, a Maryland
real estate investment trust, its general
partner
By: /s/ Robert E. Dezzutti
------------------------------------
Name: Robert E. Dezzutti
Title: Senior Vice President
TENANT:
CANCERVAX CORPORATION,
A DELAWARE CORPORATION
By: /s/ DAVID F. HALE
--------------------------------------------
Name: DAVID F. HALE
Title: PRESIDENT & CEO
By: /s/ William LaRue
--------------------------------------------
Name: William R. LaRue
Title: SUP - CFO
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