Exhibit 10.1
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 and entered into as of
October 30, 2006, by and between ARE-819/863 MITTEN ROAD,
LLC , a Delaware limited liability company (“
Landlord ”), and VALENTIS, INC. , a Delaware
corporation (“ Tenant ”), with reference to the
following:
RECITALS
A.
Pursuant to that certain Lease dated as of December 21, 1993,
as amended by that certain First Amendment to Lease dated
March 18, 1997, as further amended by that certain Second
Amendment to Leases dated April 10, 2001, as further amended
by that Third Amendment to Lease dated July 2, 2003, and as
further amended by that certain Fourth Amendment to Lease dated
March 31, 2004 (as amended, the “ Mitten Lease
”), Tenant leases certain premises at the improved real
property located at 863 Mitten Road, Burlingame, California, and
which premises are more particularly described in the Lease
(“ Mitten Premises ”).
B.
Pursuant to that certain Lease dated March 18, 1997, as
amended by that certain Second Amendment to Lease dated
August 24, 2000, as further amended by that certain Second
Amendment to Leases dated April 10, 2001, and as further
amended by that certain Amendment to Leases dated July 2, 2003
(as amended, the “ Malcolm Lease ”).
Tenant leases certain premises at the improved real property
located at 866 Malcolm Road, Burlingame, California (“
Malcolm Premises ”). The Mitten Lease and the
Malcolm Lease are collectively referred to herein as the “
Leases ,” and the Mitten Premises and the Malcolm
Premises are collectively referred to herein as the “
Premises .”
C.
The term of the Leases expires on October 31, 2007.
D.
Tenant now desires to terminate the Leases and surrender the
Premises to Landlord, and Landlord is willing to accept such
surrender of the Premises and termination of the Leases pursuant to
the terms of this Agreement.
E.
Capitalized terms used herein without definition shall have the
meanings defined for such terms in the Mitten Lease.
NOW, THEREFORE, in consideration of
the foregoing and of the mutual promises made herein, and for other
good and valuable consideration the receipt of which is hereby
acknowledged, Landlord and Tenant agree as follows:
1.
Termination Date . Landlord and Tenant
hereby terminate the Leases, subject to Tenant’s satisfaction
or Landlord’s waiver of all of the terms and conditions set
forth herein, effective as of the January 15, 2007
(“ Termination
Date ”).
Notwithstanding the foregoing, nothing contained in this Agreement
shall be deemed to limit Landlord’s right to terminate
Tenant’s occupancy of the Premises prior to the Termination
Date in the event that Tenant is in default or deemed to be in
default under either the Mitten Lease or the Malcolm
Lease.
2.
Basic Rent and Operating Expenses .
(a)
Subject to the last sentence of this Section 2(a) and
Section 3, Tenant shall continue paying all rent and other
charges which Tenant is required to pay under the Leases including,
without limitation, (i) Basic Rent for the Mitten Premises as
required under the Mitten Lease (“ Mitten Base Rent ”), (ii) base
rent for the Malcolm Premises as required under the Malcolm Lease
(“ Malcolm Base
Rent ”),
(iii) Tenant’s Percentage Share of the Project as
provided for in the Mitten Lease (“ Mitten Operating Expenses ”), and
(iv) Tenant’s Share of Taxes and Operating Expenses for
the Complex (as defined in the Malcolm Lease) as provided for in
the Malcolm Lease (“ Malcolm Operating Expenses ”). Commencing on
November 1, 2006, the HVAC maintenance charges attributable to
the Premises shall be included, as applicable, in Mitten Operating
Expenses and Malcolm Operating Expenses. Provided that Tenant
is not in default under either of the Leases and complies with all
of the provisions of this Agreement, Tenant shall not be required
to pay Mitten Base Rent, Malcolm Base Rent, Mitten Operating
Expen
