Exhibit 10.28
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 8th day of
December, 2008 (the “ Execution Date ”),
by and between ARE-San Francisco No. 41, LLC, a Delaware
limited liability company (“ Alexandria
”) and Cell Genesys, Inc., a Delaware corporation (“
Cell Genesys ”) with reference to the
following:
RECITALS
A. Alexandria (as
successor-in-interest to Drawbridge/Forbes, L.L.C., a California
limited liability company) and Cell Genesys are parties to that
certain Lease dated March 3, 2001, as amended by that certain
First Amendment to Lease dated February 20, 2002, and by that
certain Lease Commencement Date Certificate fully executed as of
February 24, 2003 (as amended, the “ Lease
”) for premises located at that certain real property
commonly known as 500 Forbes Boulevard, South San Francisco,
California being more particularly described in the Lease (the
“ Premises ”). All initially capitalized
terms not defined specifically herein shall have the meanings set
forth in the Lease.
B. Alexandria is currently
negotiating with a third party (“ New Tenant
”) to enter into a new lease of the Premises (the “
New Lease ”).
C. Cell Genesys desires to terminate
the Lease, which termination will be earlier than the date of
termination set forth in the Lease.
D. Alexandria is willing to agree to
the early termination of the Lease subject to the terms and
conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of
the foregoing, in further consideration of the mutual promises made
herein, and for other good and valuable consideration, receipt of
which is acknowledged, Alexandria and Cell Genesys agree as
follows:
1. Termination Date .
Alexandria and Cell Genesys hereby agree that, except to the extent
this Agreement is terminated pursuant to Section 10
hereof, the Lease shall automatically terminate without further
action of Alexandria or Cell Genesys on 11:59 p.m. on
January 2, 2009 (“ Termination Date
”). The Lease shall remain in full force and effect until the
Termination Date; provided, that, Cell Genesys shall have no
obligation to pay Base Monthly Rent and Additional Rent for the
month of January, 2009; provided, further, if this Agreement is
terminated for any reason prior to the Termination Date, then Base
Monthly Rent and Additional Rent for the month of January, 2009
shall notwithstanding the foregoing immediately become due and
owing.
2. Termination . Subject only
to the License, Cell Genesys represents and warrants that it has
vacated or will vacate the Premises on or before the Termination
Date. Subject only to the License, Cell Genesys hereby surrenders
all rights of possession of the Premises effective as of the
Termination Date. Subject only to the License, if Cell Genesys
remains in possession of the Premises after the Termination Date
without the express written consent of Alexandria, Cell Genesys
shall become a tenant at sufferance upon the terms of the Lease
except that the monthly rental shall be equal to 200% of Base
Monthly Rent in effect during December 2008. In addition, subject
only to the License, if Cell Genesys remains in possession of the
Premises after the date which is 7 days after the Termination Date,
then Cell Genesys shall be responsible for all damages suffered by
Alexandria resulting from or occasioned by Cell
Genesys’ holding over, including
consequential damages. Subject only to the License, Cell Genesys
specifically acknowledges that Cell Genesys’ holdover in the
Premises following the Termination Date may, without limitation,
result in liability of Alexandria under the New Lease. No holding
over by Cell Genesys, whether with or without consent of
Alexandria, shall operate to extend the Lease and this
Section 2 shall not be construed as consent for Cell
Genesys to retain possession of the Premises following the
Termination Date. Acceptance by Alexandria of Base Monthly Rent and
Additional Rent after the Termination Date shall not result in a
renewal or reinstatement of the Lease. After the Termination Date,
subject only to the License, Cell Genesys shall have no rights of
any kind with respect to the Premises.
3. Intentionally Deleted
.
4. Surrender; Cell Genesys’
FF&E . Notwithstanding anything in the Lease to the
contrary, (i) subject only to the License and any other
obligations of Cell Genesys with respect to Hazardous Materials
which survive the termination of the Lease, Cell Genesys shall
surrender the Premises to Alexandria on the Termination Date broom
clean but otherwise in its current as-is condition and Alexandria
shall accept the Premises in such condition, (ii) Cell Genesys
shall not remove or restore any Tenant Improvements or Alterations
from the Premises, (iii) Cell Genesys shall not remove any
desks, cubicles, chairs, credenzas, conference tables or other
conference room furniture, reception desks or tables or other
reception area furniture, phone systems, real property fixtures,
built-in machinery and equipment, built-in casework and cabinets
and other similar additions and improvements built into the
Premises so as to become an integral part of the Premises such as
fume hoods which penetrate the roof or plenum area, built-in cold
rooms, built-in warm rooms, walk-in cold rooms, walk-in warm rooms,
deionized water systems, glass washing equipment, autoclaves,
chillers, built-in plumbing, electrical and mechanical equipment
and systems, and any power generator and transfer switchs existing
in the Premises as of the Execution Date (collectively, “
Cell Genesys’ FF&E ”), and
(iv) Cell Genesys shall not be required to perform any
restoration of any alterations or installations to the Premises or
pay any removal costs thereof. Cell Genesys shall not remove any of
Cell Genesys’ FF&E from the Premises without
Alexandria’s prior written consent in Alexandria’s sole
and absolute discretion. Cell Genesys has delivered to Alexandria
an executed bill of sale in the form attached hereto as Exhibit
A (“ Bill of Sale ”) conveying Cell
Genesys’ FF&E to Alexandria; provided, that the Bill of
Sale shall not be effective until the Termination Date.
5. Intentionally Deleted
.
6. No Further Obligations .
Alexandria and Cell Genesys agree that Alexandria and Cell Genesys
are excused as of the Termination Date from any further obligations
with respect to the Lease, excepting only such obligations under
the Lease which are, by their terms, intended to survive
termination of the Lease, and as otherwise provided herein. In
addition, nothing herein shall be deemed to limit or terminate any
common law or statutory rights Alexandria may have with respect to
Cell Genesys in connection any Hazardous Materials (as defined in
the Lease) or for violations of any governmental requirements or
any requirements of applicable law.
7. Removal of Personal
Property . Cell Genesys agrees that the Premises shall be
surrendered free of the personal property of Cell Genesys other
than Cell Genesys’ FF&E which personal property Cell
Genesys shall remove from the Premises on or before the License
Expiration Date (as hereinafter defined). Any personal property of
Cell Genesys other than Cell Genesys’ FF&E remaining in
the Premises as of the License Expiration Date shall be deemed to
be abandoned by Cell Genesys, and may be disposed of by Alexandria,
in Alexandria’s sole discretion, without obligation or
liability to Cell Genesys.
8. Release of Liability . As
of the Termination Date, Cell Genesys releases and
exculpates Alexandria from any liability arising
from the Lease, and from the termination of the Lease. As of the
License Expiration Date, Cell Genesys releases and exculpates
Alexandria from any liability arising from the License, and from
the termination of the License. The foregoing releases extend to
all rights of 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 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.
_____________________
Cell Genesys’ Initials
Cell Genesys acknowledges that this
release and waiver are an essential and material term of this
Agreement, without which Alexandria would not become a party to
this Agreement. Cell Genesys represents and warrants, that to its
knowledge Cell Genesys has no claims against Alexandria arising
from the Lease or otherwise with respect to the
Premises.
9. Intentionally Deleted
.
10. Termination Fee . On or
before December 8, 2008, Cell Genesys shall pay to Alexandria
in immediately available funds, in consideration of
Alexandria’s agreement to terminate the Lease, a payment
which shall be in the amount of $14,714,705.50 (the “
Termination Fee ”). The termination of the
Lease shall be subject to the condition precedent that Cell Genesys
shall have timely paid the Termination Fee to Alexandria in
immediately available funds. If payment of the Termination Fee is
not timely made by Cell Genesys, then Alexandria may in its sole
and absolute discretion deliver written notice to Cell Genesys
terminating this Agreement, in which case, this Agreement shall be
null and void and shall thereafter be of no further force of
effect. Alexandria and Cell Genesys acknowledge and agree that
Alexandria’s agreement to terminate the Lease pursuant to the
terms and conditions set forth in this Agreement will result in
immediate and direct benefits to Cell Genesys and the Termination
Fee is being paid by Cell Genesys in consideration of such
benefits. Alexandria acknowledges that the Termination Fee includes
all Base Monthly Rent and Additional Rent payable by Cell Genesys
under the Lease up to and including the Termination
Date.
11. Memorandum of Lease .
Alexandria and Cell Genesys acknowledge and agree that a memorandum
of the Lease was recorded March 7, 2002 as Instrument
No. 2002-042198 in the Official Records of San Mateo County,
California (“ Memorandum of Lease ”).
Cell Genesys has delivered to Alexandria a quitclaim deed
terminating the Memorandum of Lease in the form of Exhibit B
attached hereto executed by Cell Genesys and acknowledged by a
notary (the “ Quitclaim Deed ”);
provided, that, the Quitclaim Deed shall not be effective and
Alexandria shall not cause the Quitclaim Deed to be recorded until
the Termination Date.
12. Letter of Credit .
Alexandria and Cell Genesys acknowledge and agree that Alexandria
is holding a security deposit in the form of a standby letter of
credit in the amount of $1,899,357.00 securing Cell Genesys’
obligations under the Lease (the “ Letter of
Credit ”). Notwithstanding anything in the Lease to
the contrary, Alexandria shall return the original Letter of Credit
along with a letter on Alexandria’s letterhead instructing
the issuing bank to cancel the Letter of Credit to Cell Genesys on
or before March 16, 2009. In addition to the other purposes
set forth in the Lease, Alexandria may apply the Security Deposit
to remedy any default or other
failure by Cell Genesys in fully performing Cell
Genesys’ obligations under this Agreement, including, without
limitation, the disgorgement of the Termination Fee by Alexandria
or any requirement to repay the Termination Fee to Cell Genesys,
including, without limitation, as a result of a preference action
in bankruptcy.
13. No Assignment or
Subletting . Cell Genesys represents and warrants that Cell
Genesys has not assigned, subleased, mortgaged, pledged, encumbered
or otherwise transferred any interest in the Lease or Cell
Genesys’ FF&E and that Cell Genesys holds the interest in
the Premises set forth in the Lease as of the date of this
Agreement. 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
Cell Genesys’ FF&E, including, without limitation, any
assignment or subletting to a Permitted Assignee.
14. No Further
Modification/Counterparts/Authorization . 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.
15. 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.
16. 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.
17. Conflict of Laws . This
Agreement shall be governed by the laws of the state in which the
Premises are located.
18. 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.
19. Cell Genesys’
Acknowledgment . Cell Genesys acknowledges that it has read the
foregoing provisions, understands them, and is bound by them. Time
is of the essence in this Agreement.
20. License .
(a) License . Notwithstanding
the termination of the Lease, Alexandria hereby gives Cell Genesys
an exclusive, irrevocable license (i) to use the Buildings for
general office purposes solely related to Cell Genesys’
business and for no other purposes, (ii) subject to
Alexandria’s rules and regulations, for ingress and egress to
and from the Buildings, (iii) subject to Alexandria’s
rules and regulations, for ingress and egress to and from the
Buildings for the purposes of removing Cell Genesys’ personal
property other than Cell Genesys’ FF&E from the
Buildings, (iv) subject to Alexandria’s rules and
regulations, to park in those areas designated for non-reserved
parking, in common with other occupants of the Buildings and
(v) to use Cell Genesys’ FF&E (collectively, the
“ License ”). The License shall
automatically expire on 11:59 p.m. on January 30, 2009
(“ Outside License Expiration Date ”);
provided, that, Cell Genesys may elect to terminate the License
prior to the Outside License Expiration Date by providing 5 days
prior written notice to Alexandria (a “ License
Termination Notice ”). The date which is the earlier
of (i) the Outside License Expiration Date and (ii) the
date upon which Cell Genesys (A) has given Alexandria a
License Termination Notice and (B) has fully vacated the
Buildings in the condition required by this Section 20
and removed all of Cell Genesys’ personal property
except
Cell Genesys’ FF&E from the Buildings
shall be referred to herein as, the “ License
Expiration D
