Exhibit 10.32
SECOND AMENDMENT TO
LEASE
THIS SECOND AMENDMENT TO
LEASE (the “
Second Amendment ”) is made and entered into as of
February 9, 2009, by and between POINT RICHMOND R&D
ASSOCIATES, a California limited partnership (“
Landlord ”), and TRANSCEPT PHARMACEUTICALS, INC., a
Delaware corporation (“ Tenant ”) with reference
to the following facts:
A. Landlord and Tenant are parties
to that certain lease dated as of February 22, 2006, (the
“ Original Lease ”), as amended by that certain
First Amendment to Lease dated as of June 27, 2007 (the
“ First Amendment ”) (the Original Lease as
amended by the First Amendment, the “ Lease ”).
Pursuant to the Lease, Landlord has leased to Tenant Suites 110 and
130 containing approximately 14,638 rentable square feet (the
“ Premises ”) on the ground floor of the
building located at 1003 West Cutting Boulevard, Richmond,
California (the “ Building ”).
B. Point Richmond R&D Associates
II, LLC, a California limited liability company (“ PRA
II ”), as landlord, and Tenant, as tenant, are parties to
that certain Lease dated as of February 9, 2009 (the “
PRII Lease ”), pursuant to which Tenant leases from
PRA II, an affiliate of Landlord, the premises commonly known as
Suite E (the “ PRII Premises ”) located in the
building commonly known as 501 Canal Boulevard, Point Richmond,
California.
C. Landlord and Tenant now desire to
modify and amend Section 2 of the Addendum to the Original
Lease as more particularly set forth below.
NOW, THEREFORE
, in consideration of the above
recitals which by this reference are incorporated herein, the
mutual covenants and conditions contained herein and other valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, Landlord and Tenant agree as follows:
1. Scope of Second Amendment and
Defined Terms . Except as expressly provided in this Second
Amendment, the Lease shall remain in full force and effect.
Capitalized terms used in this Second Amendment not otherwise
defined herein shall have the respective meanings ascribed to them
in the Lease.
2. Modification to Lease .
Section 2 of the Addendum to the Original Lease is hereby
deleted in its entirety and replaced with the following:
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(a)
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If during the initial Term of
this Lease, Tenant is not then in Default under this Lease or the
PRII Lease, and has a demonstrable business need to expand into
space consisting of at least 5,000 rentable square feet of area
more than the aggregate of the Rentable Area of the Premises and
the rentable area of the PRII Premises (the “Aggregate
Premises”), Tenant shall have the option (the
“Expansion Option”) to provide Landlord at least six
(6) months’ notice (“Expansion Notice”) of
the date when Tenant requires such larger space and shall specify
the amount of space (the “Expansion Space”) that Tenant
desires. Tenant shall have no right to provide an Expansion Notice
if Tenant is not in occupancy of all of the Aggregate Premises, any
part of the Aggregate Premises is sublet, or if this Lease or the
PRII Lease has been assigned (other than pursuant to a
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Permitted Transfer). Landlord
agrees to use reasonable efforts to locate the Expansion Space in
the Project or in a building owned by an affiliate of Landlord in
the Richmond, Emeryville or West Berkeley area of comparable
quality to the Building (e.g. Emery Station, Emery Station North,
501 Canal Boulevard and 503 Canal Boulevard) to accommodate
Tenant’s needs.
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(b)
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If Landlord and
Tenant have not, within six (6) months of the Expansion
Notice, agreed upon Expansion Space reasonably acceptable to
Tenant, Tenant shall have the right to terminate this Lease by
providing Landlord one hundred eighty (180) days prior notice
specifying the unequivocal termination of this Lease, and provided
further that Tenant provide such termination notice within thirty
(30) days of the expiration of such six (6) month
period.
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(c)
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If Landlord locates proposed
Expansion Space within six (6) months’ of the Expansion
Notice, Landlord shall notify Tenant (“Landlord’s
Notice”) of the location of such space and shall provide
Tenant with reasonable assurances that such proposed Expansion
Space can be improved in the manner and time required by this
Section. Tenant shall thereafter have ten (10) business days
within which to notify Landlord whether Tenant approves such
proposed Expansion Space, in Tenant’s reasonable discretion.
If Tenant fails to respond within such ten (10) business day
period, Tenant shall be deemed to have disapproved such proposed
Expansion Space. If Tenant approves any such proposed Expansion
Space, then Landlord and Tenant shall enter an amendment of this
Lease as provided in subparagraph (e) below. Notwithstanding
the foregoing, (x) the Monthly Base Rent rate payable with
respect to a portion of the Expansion Space consisting of 26,895
rentable square feet (the aggregate rentable area of the Premises
and the PRII Premises, referred to herein as the “Base
Space”) shall be equal to (i) the Monthly Base Rent
payable hereunder with respect to 14,638 rentable square feet of
the Base Space, plus (ii) the Monthly Base Rent payable under
the PRII Lease with respect to 12,257 rentable square feet of the
Base Space, and (y) the Monthly Base Rent rate payable with
respect to the balance of the Expansion Space (“Balance
Space”) shall be the “current fair market rate”
(i.e., the rate that a willing, comparable, new (i.e.,
non-renewal), non-equity tenant would pay, and that a willing
landlord of comparable space in the local market of the Balance
Space would accept at arms’ length), determined in the manner
set forth in subparagraph (d) below. If the balance of the
Term of this Lease is less than thirty six (36) months
following the commencement date for the Expansion Space, the Term
of this Lease shall be automatically extended to ensure the balance
of the Term is thirty six (36) months following such
commencement date. If such an automatic extension of the Term is
required pursuant to the terms of the immediately preceding
sentence, the Monthly Base Rent shall automatically increase by
three percent (3%) effective as of the date immediately
following the
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initial Expiration Date of this
Lease, and shall increase by three percent (3%) every twelve
(12) months. Landlord and Tenant acknowledge and agree that
the Base Space shall include the same proportion of laboratory and
office space and the same ratio of offices to cubicles as the
Aggregate Premises and Landlord shall, at Landlord’s sole
cost and expense, provide Tenant a “turn-key” buildout
with respect to the Base Space reasonably comparable to the
original Aggregate Premises leased by Tenant hereunder and pursuant
to the PRII Lease. Monthly Base Rent and all additional Rent
payable for the Expansion Space shall be payable in monthly
installments in accordance with the terms and conditions of this
Lease, provided that Tenant’s Share shall be appropriately
adjusted. Landlord shall provide Tenant with a tenant improvement
allowance consistent with the determination of the fair market rent
for the Balance Space. Subject to Landlord’s reasonable
approval of Tenant’s financial condition, Landlord shall
reasonably cooperate with Tenant to provide additional tenant
improvement allowance which additional allowance would be amortized
over the remaining term and repaid through an increase of Base Rent
payable for the Expansion Space. The term for the Expansion Space
shall commence on the later of (x) the date provided in
Landlord’s Notice (but no earlier than the date specified in
Tenant’s Expansion Notice) or (y) unless waived by
Tenant in writing, the date by which all of the following have
occurred: (i) Landlord shall have Substantially Completed the
design, construction and installation of tenant improvements in the
Expansion Space as hereinafter provided; (ii) Landlord has
delivered possession of the Expansion Space to Tenant; and
(iii) Landlord has obtained approval of occupancy of the
Expansion Space from the applicable governmental authorities.
Landlord and Tenant acknowledge that the commencement date for the
term for the Expansion Space shall be memorialized by amendment
pursuant to subparagraph (e) below.
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(d)
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If Tenant
properly exercises the Expansion Option, the initial Monthly Base
Rent applicable to the Balance Space shall be determined in
the
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