Exhibit 10.30
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 6
th
day of March, 2009
(the “ Execution Date ”), by and between
BMR-Bridgeview Technology Park 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, LLC, a California limited liability company) and
Cell Genesys are parties to that certain Lease Agreement dated as
of June 29, 2000, as amended by that certain First Amendment
to Lease dated as of January 2, 2001 (as amended, and as the
same may have been further amended, supplemented or otherwise
modified from time to time, the “ Lease
”) for premises (the “ Premises ”)
located at that certain real property commonly known as 24570
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 6, 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 Section 27 of the Lease (as modified by Section 26
of the First Amendment thereto) and Section 10.2 of the Lease
(as modified by Section 16 of the First Amendment), as further
modified by the preceding sentence, 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. 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 13 and 27.5 of the Lease, as modified by Section 26
of the First Amendment (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.
5. 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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6. 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 Gene
