Exhibit 10.008
LEASE TERMINATION AGREEMENT
This LEASE
TERMINATION AGREEMENT (the “Agreement”) is made and
entered into as of the 15 day of October, 2003, by and between
Cygnus, Inc., a Delaware corporation (“Tenant”) and
Metropolitan Life Insurance Company, a New York corporation
(“Landlord”).
Recitals:
A. Metropolitan’s
predecessor in interest as Landlord (Seaport Centre Venture Phase
I, a California general partnership, herein, the
“Venture”) and Tenant’s predecessor in interest
as Tenant (Cygnus Research Corporation, a California corporation)
entered into that certain written Lease dated September 27, 1988
(the “Original Lease”), for certain premises of
approximately 20,880 square feet of space in Building 8 of Phase I
(“Building 8 Space”), located at 701 Galveston Street,
Redwood City, California, all as more particularly described in the
Original Lease, which Original Lease included Rider No. 1 To
Seaport Centre Standard Lease and Exhibits A, A-1, B &
C.
B. The
Venture and Tenant’s predecessor in interest as Tenant at the
time (then, Cygnus Therapeutic Systems, a California corporation)
entered into that certain written First Amendment To Ten-Year
Industrial Net Lease Agreement dated May 15, 1992 (the
“First Amendment”) for certain space in Building 5 of
Phase I (“Building 5 Space”), and that certain written
Second Amendment To Ten-Year Industrial Net Lease Agreement dated
August 8, 1992 (the “Second Amendment”) for
certain space of approximately 11,158 square feet in Building 3 of
Phase I (“Building 3 Space”), whose current street
address remains 501 Chesapeake Street, Redwood City,
California.
C. Landlord
and Tenant entered into that certain written Third Amendment to
Ten-Year Industrial Net Lease Agreement dated as of June 8,
1998 (the “Third Amendment”) pursuant to which the
expiration of the lease for Building 5 was acknowledged.
D. Landlord
and Tenant entered into that certain written Fourth Amendment to
Ten-Year Industrial Net Lease Agreement dated as of
October 18, 2002 (the “Fourth
Amendment”).
E. The
Original Lease, as amended prior to this Amendment, is referred to
as the “Existing Lease”. The “Existing
Premises”, prior to this Amendment, shall mean the
“Building 3 Space” (as defined in the Third Amendment,
approximately 11,158 square feet in Building 3 of Phase I, whose
current street address remains 501 Chesapeake Street, Redwood City,
California) as further described on Exhibit A.
F. Tenant
subleases the Building 3 Space to Maxygen, Inc.
(“Maxygen”) pursuant to that certain Sublease between
Tenant and Maxygen dated as of March 30, 2001 (the
“Sublease”) and desires to surrender the Building 3
Space to Landlord. Landlord and Tenant desire to provide for
(i) Tenant’s surrender of the Building 3 Space; and
(ii) termination of the Existing Lease, in strict accordance
with the terms and conditions set forth herein.
NOW
THEREFORE, in consideration of the mutual terms and conditions
herein contained, the parties hereby agree as follows:
1.
Initial Provisions.
(a)
Definitions. Unless otherwise defined herein, all
capitalized terms have the meanings ascribed to them in the
Existing Lease.
(b)
Condition Precedent. This Agreement and the obligations of
each party hereunder are expressly subject to the condition
precedent of Landlord successfully entering into and obtaining a
legally binding new written lease with Codexis, Inc.
(“Codexis”) for the Existing Premises satisfactory in
all respects in form and substance to Landlord, in Landlord’s
sole discretion (the “Codexis Lease”). If such
condition precedent is not satisfied, unless waived in writing by
Landlord in its sole discretion, this Amendment shall be null and
void, and of no force or effect, and the Existing Lease shall
remain in full
1
force and effect unmodified by
this Agreement. Landlord shall give Tenant written notice of the
satisfaction of this condition precedent or of Landlord’s
written waiver of this condition precedent.
2.
Termination. The Term of the Lease is hereby amended to
terminate and expire on the 15th day of October, 2003 (the
“Effective Date”). Any and all options and rights of
Tenant to extend the Term or expand the Existing Premises are
hereby terminated and of no further force or effect. On the
Effective Date, the Existing Premises shall be surrendered by
Tenant. Tenant shall fully comply with all obligations under the
Existing Lease through the Effective Date, including, without
limitation, those provisions relating to the condition of the
Existing Premises, and the return of possession of the Existing
Premises as set forth in Article Twenty-Eight of the Existing
Lease. On or before the Effective Date, Tenant shall deliver to
Landlord any plans and specifications, maintenance records,
permits, and licenses pertaining to the Existing Premises or to any
improvements thereon, or to both (but not pertaining to
Tenant’s business conducted therein) in the possession of
Tenant.
Notwithstanding
anything to the contrary contained in the Existing Lease, it is
understood and agreed that Tenant shall have the following
restoration obligations (collectively, the “Restoration
Obligations”): (a) Tenant shall remove from the Existing
Premises, the Building and the Project all signs relating to the
identity of the occupant and/or the business conducted in the
Existing Premises, and shall restore each affected area to its
condition prior to the installation of such signs, at
Tenant’s sole cost and expense; (b) Tenant shall remove from
the Existing Premises those items described in the Existing Lease,
including without limitation, Article 28 of the Original
Lease, and shall restore the Existing Premises as described in the
Existing Lease, except if and to the extent otherwise specified on
Exhibit B, at Tenant’s sole cost and expense; and
(c) those items specified on Exhibit C attached hereto
and made a part hereof (the “Codexis Improvements”)
shall be the sole and exclusive property of Codexis, Inc., who will
be the new tenant of the Existing Premises, subject to the terms of
its lease with Landlord and Tenant hereby acknowledges that, on the
Effective Date or earlier termination of the Existing Lease, Tenant
shall have no interest in the Codexis Improvements. The parties
hereto agree that a final walkthrough of the Existing Premises
shall be conducted by Tenant, Landlord and Subtenant (as described
in the Joinder below) at a mutually agreeable time and Exhibits B
and C are subject to modification following said
walkthrough.
3.
Payments; Consideration; Security Deposit. Tenant shall
continue to pay all Rent and other charges under the Lease accruing
through the Effective Date, all of which shall be prorated through
the Effective Date in accordance with Article Five of the
Existing Lease and as provided herein. Any undetermined Rent and
other charges may be billed to Tenant when determined (and
Tenant’s obligation to pay the same shall survive termination
of the Existing Lease), or Landlord may reasonably estimate such
charges and require that Tenant pay the same within ten
(10) days after Landlord bills the same, subject to adjustment
after the actual Rent and other charges have been determined.
Tenant agrees to indemnify and hold Landlord harmless against any
utility charges or other charges relating to the Existing Premises
resulting from contracts between Tenant and utility suppliers which
are the obligation of Tenant under the Existing Lease and which
accrue on or before the Effective Date. As additional consideration
for this Agreement, and to cover Landlord’s administrative,
processing and legal fees, and to reimburse Landlord for any loss
of rentals that may hereafter be sustained after the Effective Date
as a result of this Agreement:
(a) Tenant shall pay the amount of Fifty
Thousand Three Hundred Forty-Three and 21/100 Dollars ($50,343.21)
in cash or certified funds, as additional Rent under the Lease, on
or before the Effective Date and Tenant shall forward such sums as
it received from Subtenant pursuant to the Joinder below;
and
(b) Tenant shall pay Landlord any rent tax,
sales tax, service tax or other tax, if any, due on the foregoing
amounts.
4.
Release. In consideration of Landlord executing this
Agreement, except to the extent of Landlord’s obligations
expressly set forth in this Agreement, Tenant hereby releases and
forever discharges Landlord, and its partners, officers, directors,
agents, property manager, trustees, beneficiaries, and employees
(collectively, “Releasees”), of and from any and all
claims, acts, damages,
2
demands, rights of action and
causes of action which Tenant ever had, now has, or in the future
may have, against Releasees, arising from or in any way connected
with the Existing Lease, or Landlord’s management or
operation of the Building (those matters and only those
above-described matters released by Landlord and Tenant
respectively are referred to collectively as the “Released
Matters”). Tenant understands and agrees that by
Landlord’s execution of this Agreement, Releasees do not
admit any liability of any nature whatsoever. This Agreement is
made entirely as a compromise and for the purpose of terminating
the Lease.
“With respect to the Released Matters,
both parties expressly waive any and all rights which they may have
under Section 1542 of the Civil Code of the State of
California, which provides as follows:
A
GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES
NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING
THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED
HIS SETTLEMENT WITH THE DEBTOR.”
5.
Representations.
(a) Each
party represents to the other that it has full power and authority
to execute this Agreement.
(b) Tenant
represents that:
(i) It has not made any assignment,
sublease, transfer, conveyance or other disposition of the Existing
Lease or any interest in the Existing Lease or the Existing
Premises, and has no knowledge of any existing or threatened claim,
demand, obligation, liability, action or cause of action arising
from or in any manner connected with the Existing Lease or the
Existing Premises by any other party;
(ii) All subleases, concessions, and other
rights of use and occupancy of the Existing Premises, insurance
policies, and maintenance and service contracts which Landlord has
not previously elected in writing to continue, if any, have been
legally terminated or will be terminated prior to the Effective
Date. No cause of action against Landlord exists as of the date of
this Agreement nor will exist in the future in any party to a
sublease, concession, agreement for use or occupancy, or insurance
policy or maintenance or service contract, based on the breach of
any contract or obligation arising from the termination of the
Existing Lease;
(iii) There
|
