Exhibit 10.29
AGREEMENT FOR TERMINATION OF
LEASE AND
VOLUNTARY SURRENDER OF
PREMISES
This Agreement for Termination of
Lease and Voluntary Surrender of Premises (this “
Agreement ”) is made as of the 6th day of
March, 2009 (the “ Execution Date ”), by
and between BMR-Bridgeview Technology Park II LLC, a Delaware
limited liability company (“ BMR ”), and
Cell Genesys, Inc., a Delaware corporation (“ Cell
Genesys ”), with reference to the
following:
RECITALS
A. BMR (as successor-in-interest to
F&S Hayward II, LLC, a Delaware limited liability company) and
Cell Genesys are parties to that certain Lease Agreement dated as
of January 7, 2002 (as the same may have been amended,
supplemented or otherwise modified from time to time, the “
Lease ”) for premises (the “
Premises ”) located at that certain real
property commonly known as 24590 Clawiter Road, Hayward,
California, being more particularly described in the
Lease.
B. Cell Genesys desires to terminate
the Lease earlier than the expiration date set forth in the Lease,
and BMR is willing to agree to the early termination of the Lease
as set forth in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of
the foregoing, in further consideration of the mutual promises made
herein, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, BMR and Cell
Genesys agree as follows:
1. Termination Date . BMR and
Cell Genesys hereby agree that, subject only to fulfillment or
waiver of the Termination Conditions (as hereinafter defined), the
Lease shall terminate automatically (except for the Surviving
Obligations, as hereinafter defined) without further action of BMR
or Cell Genesys at 11:59 p.m. PST on March 6th, 2009 (the
“ Termination Date ”); provided, however,
BMR shall look solely to the Termination Fee for any amounts of
Rent coming due in March 2009. If the Termination Conditions have
not been fulfilled or waived by March 31, 2009, then, upon
written notice by BMR or Cell Genesys to the other party, this
Agreement shall be null and void and of no further force or effect.
If neither party elects to void this Agreement pursuant to the
preceding sentence by 11:59 p.m. PST on April 7, 2009, such
right to void this Agreement shall be waived and this Agreement
shall remain in full force and effect.
2. Termination. On the
Termination Date, the Lease shall terminate, except for the
Surviving Obligations. From and after the Termination Date, Cell
Genesys will cease occupying the Premises pursuant to the
Lease.
3. Surrender; FF&E .
Notwithstanding anything in the Surrender Obligations (as
hereinafter defined) to the contrary, (a) Cell Genesys shall
surrender the Premises and all alterations and improvements therein
to BMR on the Termination Date in their current “as is”
condition with all Premises systems and equipment therein in good
working order (to the extent the responsibility of Cell Genesys
under the Lease) and BMR shall accept the Premises and such
alterations and improvements in such condition, (b) Cell
Genesys shall not remove any Tenant improvements or alterations
from the Premises, (c) Cell Genesys shall not remove any fixed
asset listed on Exhibit A hereto (the “ Fixed
Asset List ”) nor remove any other similar additions
and improvements built in and existing in the Premises as of the
Execution Date, as such fixed assets have become an integral part
of the real property referred to as the “Premises”,
(d) Cell Genesys shall deliver to BMR those items set forth on
the Building Turnover List attached as Exhibit B hereto
(“ Building Turnover List ”), and BMR
shall be entitled to use and disclose to third parties any
marketing materials prepared by, or on behalf of Cell Genesys in
connection with the Premises, but without any warranty or
representation by Cell Genesys (the items listed on the Fixed Asset
List and Building Turnover List being referred to herein
collectively as the “ FF&E ”), and
(e) Cell Genesys shall not be required to perform any
restoration or any alterations or installations to the Premises or
pay any removal costs thereof. The obligations of Cell Genesys
under Sections 12.2 and 29 of the Lease, are hereinafter sometimes
referred to as the “ Surrender Obligations
”. The parties acknowledge that the FF&E shall become the
property of BMR effective upon the Termination Date, subject only
to fulfillment or waiver of the Termination Conditions, and that
Cell Genesis shall keep in effect any insurance required by the
Lease until the fulfillment or waiver of the Termination
Conditions. Cell Genesys does hereby grant, bargain, sell,
transfer, assign, convey, set over and deliver unto BMR as of the
Termination Date all of Cell Genesys’ right, title and
interest in and to the FF&E subject only to fulfillment or
waiver of the Termination Conditions.
4. Stock Purchase Agreement .
Upon the satisfaction of the Termination Condition listed in
Section 8(d) below (BMR’s lender shall have consented to
the termination of the lease between BMR and Cell Genesys with
respect to the Premises located at 24570 Clawiter Road, Hayward,
California,), Cell Genesys and BioMed Realty, L.P. shall
immediately execute, deliver and commence performance of the Stock
Purchase Agreement in the form attached as Exhibit C (the
“ Stock Purchase Agreement ”) providing for the
issuance of 1,000,000 shares (the “ Shares ”) of
common stock to BioMed Realty, L.P.
5. No Further Obligations .
BMR and Cell Genesys agree that BMR and Cell Genesys are excused as
of the Termination Date from any further obligations with respect
to the Lease, excepting only the obligations herein, the Surrender
Obligations and the indemnity obligations of Cell Genesys under
Sections 15.1 and 29.5 of the Lease (collectively with the
Surrender Obligations, the “ Surviving
Obligations ”). In addition, nothing herein shall be
deemed to limit or terminate any common law or statutory rights BMR
may have with respect to Cell Genesys in connection with the
Surviving Obligations.
6. Removal of Movable Personal
Property . Cell Genesys agrees that the Premises shall be
surrendered free of the movable personal property of Cell Genesys
other than the FF&E, which movable personal property Cell
Genesys shall remove from the Premises on or before the Termination
Date. Any movable personal property of Cell Genesys other than the
FF&E remaining in the Premises as of the Termination Date shall
be deemed to be abandoned by Cell Genesys and may be disposed of by
BMR, in BMR’s sole discretion, without obligation or
liability to Cell Genesys.
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7. Release of Liability . As
of the Termination Date, except as set forth herein and except for
the Surviving Obligations, each of BMR and Cell Genesys releases
and exculpates the other from any claim, action, cause of action,
obligation, cost, demand and liability of every type and nature,
known and unknown, arising from or connected with the Lease or from
the termination of the Lease. The foregoing releases extend to all
rights of BMR and Cell Genesys under Section 1542 of the
California Civil Code and any similar law of any state or territory
of the United States, which are hereby expressly waived and
relinquished by BMR and Cell Genesys. Section 1542
reads:
A GENERAL RELEASE DOES NOT EXTEND TO
CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS
OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN
BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT
WITH THE DEBTOR.
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Cell Genesys’
Initials
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BMR’s Initials
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8. Termination Conditions.
The termination of the Lease shall be subject to the fulfillment or
waiver of the following conditions for the benefit of BMR
(collectively, the “ Termination Conditions
”): (a) Cell Genesys shall have paid the Termination Fee
(as defined below) within two business days after written
notification from BMR that it has received the lender consent
described in clause (d) below, (b) Cell Genesys shall
have delivered, or caused to have been delivered, to BMR a share
certificate in BMR’s name representing the Shares within two
business days after the mutual execution of the Stock Purchase
Agreement, (c) Cell Genesys shall have delivered to BMR the
FF&E and (d) BMR’s lender shall have consented to
the termination of the lease between BMR and Cell Genesys with
respect to the Premises located at 24570 Clawiter Road, Hayward,
California.
9. Termination Fee . Cell
Genesys shall pay to BMR in immediately available funds, in
consideration of BMR’s agreement to terminate the Lease, a
payment in the amount of Three Million Three Hundred Ten Thousand
Five Hundred Thirty-Six Dollars ($3,310,536) (the “
Termination Fee ”). BMR acknowledges that all
Base Rent and Additional Rent payable by Cell Genesys under the
Lease up to and including February 28, 2009 have been
paid.
10. Return of Letter of
Credit . BMR and Cell Genesys acknowledge and agree that BMR is
holding a security deposit in the form of a standby letter of
credit in the amount of $990,000 (the “ Letter of
Credit ”). Notwithstanding anything in the Lease to
the contrary, provided that the Lease is terminated in accordance
with this Agreement, within 10 business days following the
occurrence of the last of the Termination Conditions, BMR shall
deliver to Cell Genesys the original Letter of Credit along with a
letter on BMR’s letterhead instructing the issuing bank to
cancel the Letter of Credit.
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11. No Assignment, Subletting or
Encumbrances . Cell Genesys represents and warrants that it has
not assigned, subleased, mortgaged, pledged, encumbered or
otherwise transferred any interest in the Lease or the FF&E and
that Cell Genesys holds the entire lessees’ interests in the
Premises conveyed by the Lease as of the Execution Date.
Notwithstanding anything to the contrary set forth in the Lease,
Cell Genesys shall not assign, sublease, mortgage, pledge, encumber
or otherwise transfer any interest in the Lease or the FF&E
prior to the Termination Date. Cell Genesys further represents and
warrants that its title to the FF&E is free and clear of all
liens, mortgages, pledges, security interests, prior assignments
(other than those that have been disclosed to BMR in writing),
encumbrances and claims of any nature, and agrees to indemnify BMR
for all losses, costs and expenses (including reasonable
attorneys’ fees) incurred by BMR as a result of a breach of
such representation and warranty. Cell Genesys hereby assigns and
transfers to BMR any third-party warranty to or guaranty of the
FF&E to the extent transferrable and hereby expressly disclaims
any other warranty, express or implied, whatsoever with respect to
the FF&E.
12. No Further
Modification/Counterparts/Authorization/Waiver . This Agreement
may not be modified or terminated except in writing signed by all
parties. This Agreement may be executed in counterparts which,
taken together, will constitute one agreement binding on the
parties. The persons signing below represent and warrant that they
are duly authorized to execute this Agreement. No covenant or
condition of this Agreement in favor of any party shall be deemed
waived unless expressly waived in writing by an officer of such
party.
13. Successors and Assigns .
The covenants and agreements herein contained shall inure to the
benefit and be binding upon the parties and their respective
successors and assigns, whether by merger, sale, consolidation or
otherwise.
14. Attorneys’ Fees .
In the event of a dispute between the parties, the prevailing party
shall be entitled to have its reasonable attorneys’ fees and
costs paid by the other party.
15. Conflict of Laws . This
Agreement shall be governed by the laws of the state in which the
Premises are located.
16. Headings. Section
headings in this Agreement are for convenience of reference only,
and shall not be construed to affect or modify the substantive
meaning of any Section hereof.
17. Severability . If any
clause or provision of this Agreement is illegal, invalid or
unenforceable under present or future laws, then and in that event,
it is the intent of the parties hereto that the remainder of this
Agreement, and the validity, enforceability and legality thereof,
shall not be affected or impaired thereby in any way.
18. Incorporation by
Reference . All exhibits and addenda attached hereto are hereby
incorporated into this Agreement and made a part hereof.
19. Brokers . Cell Genesys
and BMR each represents and warrants that no broker, agent or other
person (collectively, “ Broker ”) is owed
any commission or other form of compensation in connection with the
execution and delivery of this Agreement. Cell Genesys and BMR each
hereby agree to indemnify and hold the other harmless from and
against any claims by any Broker claiming a commission or other
form of compensation by virtue of having dealt with Cell Genesys or
BMR, as applicable, with regard to this Agreement.
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20. Notices . All notices or
other communications between the parties shall be in writing and
shall be deemed duly given upon delivery or refusal to accept
delivery by the addressee thereof if delivered in person, or upon
actual receipt if delivered by reputable overnight guaranty
courier, addressed and sent to the parties at the following
addresses:
If to BMR:
BMR-Bridgeview Technology Park II
LLC
17190 Bernardo Center
Drive
San Diego, CA 92128
Attn: Vice President,
Development
with a copy to:
BMR-Bridgeview Technology Park II
LLC
17190 Bernardo Center
Drive
San Diego, CA 92128
Attn: Vice President, Real Estate
Counsel
If to Cell Genesys:
400 Oyster Point Boulevard, Suite
525
South San Francisco, CA
94080
Attn: Sharon Tetlow
with a copy to:
Holme Roberts & Owen
LLP
560 Mission Street 25th
Floor
San Francisco, CA 94105
Attn: Kenneth R. Whiting.
Esq.
BMR and Cell Genesys may from time
to time by written notice to the other designate another address
for receipt of future notices.
21. Consultant Consent . BMR,
or an affiliate of BMR, may engage as consultants cer
