Exhibit 10.4
* Confidential Treatment has
been
requested for the marked portions
of this exhibit pursuant to Rule
24b-2 of the Securities Exchange
Act of 1934, as amended
LEASE TERMINATION
AGREEMENT
(CANYON PARK
EAST)
This Lease Termination Agreement
(this “ Agreement ”) is entered into as of the
29 th
day of June, 2009, by and between
ARDEN REALTY LIMITED PARTNERSHIP, a Maryland limited partnership
(“ Landlord ”) and TARGETED GENETICS
CORPORATION, a Washington corporation (“ Tenant
”).
R E C I T A
L S :
A. Landlord’s
predecessor-in-interest, CarrAmerica Realty Corporation, a Maryland
corporation, and Tenant entered into that certain Lease dated as of
June 30, 2000 (“ Lease ”), whereby Landlord
leased to Tenant, and Tenant leased from Landlord, those certain
premises consisting of approximately 75,692 rentable square feet as
more particularly described in the Lease (the “
Premises ”), in that certain building commonly known
as Canyon Park East and located at 22011 26
th Avenue S.E., Bothell, Washington. The Lease is
incorporated herein by this reference.
B. There is currently $[*] due,
owing and unpaid by Tenant to Landlord under the Lease (the “
Past Due Amount” ), after application of
Tenant’s Letter of Credit.
C. Tenant and Landlord desire to
enter into this Agreement in order to terminate the Lease, to
resolve the Past Due Amount and to release one another from their
respective obligations thereunder, except as otherwise provided
herein.
A G R E E M
E N T :
NOW, THEREFORE, in consideration of
the foregoing recitals and the conditions and the covenants
hereinafter contained, and for other consideration hereinafter set
forth, the receipt and sufficiency of which are hereby
acknowledged, Landlord and Tenant hereby agree as
follows:
1. Termination of the Lease .
Landlord and Tenant hereby agree that, conditioned upon the
performance by the parties of the provisions of this Agreement, the
Lease shall terminate and be of no further force or effect as of
the date of full execution of this Agreement (“
Termination Date ”).
2. Return of Premises .
Tenant hereby stipulates that it has vacated the Premises and
restored and delivered exclusive possession of the same to Landlord
on or about February 3, 2009 (“ Vacation Date
”). Any furniture, equipment or other property remaining in
the Premises as of the Termination Date shall be considered
abandoned by Tenant (“ Abandoned Property ”) and
may be disposed of or utilized by Landlord in any manner
whatsoever. Tenant hereby waives any and all rights and remedies
under the Lease and/or Washington law with respect to the Abandoned
Property.
3. Letter of Credit . Tenant
and Landlord acknowledge that Tenant has relinquished to Landlord
and Landlord applied Tenant’s Letter of Credit in the amount
of $200,000.00 in or about February 2009, toward Tenant’s
past due rental obligations in the ordinary course of
business.
4. Past Due Amount/Default
.
(a) As consideration for
Landlord’s execution of this Agreement, Tenant agrees to and
will pay to Landlord in good U.S. funds, via cashier’s checks
or wire, the total sum of $500,000.00 (the “ Termination
Fee ”), which sum, when paid, will represent full and
final satisfaction of the Past Due Amount. Tenant agrees to and
will pay the Past Due Amount to Landlord in installments pursuant
to the following schedule (provided, however, that Tenant
may
-1-
elect to pay any installment of the Termination
Fee at any time before its due date):
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Past Due Amount
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Due Date
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Upon execution of this Agreement
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[*]
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[*]
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July 1, 2010
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(b) Notwithstanding any provision to
the contrary, in the event that Tenant fails to timely make any of
the payments due under Paragraph 4(a) above within five
(5) days following written notice that the payment is past due
(either of which event shall constitute a “Default”
under this Agreement), Tenant hereby stipulates that the entire
Termination Fee, less any payments already made, will become
immediately due and owing to Landlord. 1
(c) Tenant agrees that if during the
course of the above repayment schedule as outlined in subsection
(a) of this Paragraph it obtains at least $[*] in net proceeds
from any combination of debt or equity financing, that Tenant will
notify Landlord within five (5) calendar days of receiving
such financing proceeds and that any unpaid balance of the
Termination Fee shall be accelerated and immediately due and
payable to Landlord within ten (10) calendar days of such
notification.
(d) Tenant further agrees that if
during the course of the above repayment schedule as outlined in
subsection (a) of this Paragraph Tenant receives a milestone
payment from [*] as a result of the filing by [*] with a regulatory
agency for marketing approval of [*] (the “ Milestone
Payment ”), as provided under that certain [*] Agreement
between Tenant and [*] dated [*], Tenant will notify Landlord
within five (5) calendar days of receiving the Milestone
Payment and will remit to Landlord within ten (10) calendar
days of such notification an accelerated payment of $100,000.00.
Such accelerated payment amount (i) shall be credited as
payment of the full installment amounts due on [*] and as payment
of half the installment amount due on [*], and (ii) shall not
relieve Tenant of the obligation to make any other scheduled
payment. For the avoidance of doubt, the parties
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1
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For notice purposes under this
Agreement, Tenant’s notice address is 1100 Olive Way, Suite
100, Seattle, WA 98101-1823, Attn: Chief Financial Officer, and
notice is deemed effective upon receipt if sent via express
courier, certified mail or confirmed fax to Tenant (Attn: Chief
Financial Officer) at (206) 623-7064 (with the original
deposited in the U.S. mail in the case of fax). Landlord’s
notice address is Arden Realty, Inc., 11601 Wilshire Boulevard,
4 th
Floor, Los Angeles, CA 90025, Attn.:
Legal Department, and notice is deemed effective upon receipt if
sent via express courier, certified mail or confirmed fax to
Landlord at (310) 268-8303 (with the original deposited in the
U.S. mail in the case of fax).
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*Confidential Treatment
Requested
-2-
acknowledge and agree that (A) if the
remaining amount of the Termination Fee not yet paid by Tenant is
less than $100,000 at the time Tenant receives the Milestone
Payment (if any), the accelerated payment due to Landlord under
this subsection (d) shall be the remaining unpaid amount of
the Termination Fee, and (B) Tenant’s obligation to make
a payment to Landlord upon the receipt of the Milestone Payment (if
any) shall terminate when the Termination Fee has been paid in
full. Landlord acknowledges that there is no guarantee that AMT
will achieve the milestone for which the Milestone Payme