Exhibit 10.1
FOURTH AMENDMENT
THIS FOURTH AMENDMENT (this “Amendment”) is made and entered into as of July 31, 2015, by and between CA-10880 WILSHIRE LIMITED PARTNERSHIP, a Delaware limited partnership (“Landlord”), and PUMA BIOTECHNOLOGY, INC., a Delaware corporation (“Tenant”).
RECITALS
A. | Landlord and Tenant are parties to that certain lease dated October 4, 2011 (the “Original Lease”), as previously amended by Commencement Letter dated January 10, 2012, First Amendment dated November 28, 2012 (the “First Amendment”), Commencement Letter dated January 9, 2013, Second Amendment dated December 2, 2013 (the “Second Amendment”), Commencement Letter dated January 14, 2014 and Third Amendment dated March 18, 2014 (the “Third Amendment”) (as amended, the “Lease”). Pursuant to the Lease, Landlord has leased to Tenant space currently containing approximately 25,683 rentable square feet (the “Existing Premises”) described as Suite Nos. 2000, 2020, 2050 and 2150 on the 20th and 21st floors of the building commonly known as 10880 Wilshire Boulevard located at 10880 Wilshire Boulevard, Los Angeles, California (the “Building”). |
B. | The Lease will expire by its terms on December 31, 2018 (the “Existing Expiration Date”), and the parties wish to extend the term of the Lease on the following terms and conditions. |
C. | The parties wish to expand the Premises (defined in the Lease) to include additional space, containing approximately 26,057 rentable square feet described as Suite No. 1700 on the 17th floor of the Building and shown on Exhibit A attached hereto (the “Expansion Space”), on the following terms and conditions. |
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. | Extension. The term of the Lease is hereby extended through March 31, 2026 (the “Extended Expiration Date”). The portion of the term of the Lease beginning on January 1, 2019 (the “Extension Date”) and ending on the Extended Expiration Date shall be referred to herein as the “Extended Term”. |
2. | Expansion. |
| 2.1. | Effect of Expansion. Effective as of the Expansion Effective Date, the Premises shall be increased from 25,683 rentable square feet on the 20th and 21st floors to 51,740 rentable square feet on the 17th, 20th and 21st floors by the addition of the Expansion Space, and, from and after the Expansion Effective Date, the Existing Premises and the Expansion Space shall collectively be deemed the Premises. The term of the Lease for the Expansion Space (the “Expansion Term”) shall commence on the Expansion Effective Date and, unless sooner terminated in accordance with the Lease, end on the Extended Expiration Date. From and after the Expansion Effective Date, the Expansion Space shall be subject to all the terms and conditions of the Lease except as provided herein. Except as may be expressly provided herein, (a) Tenant shall not be entitled to receive, with respect to the Expansion Space, any allowance, free rent or other financial concession granted with respect to the Existing Premises, and (b) no representation or warranty made by Landlord with respect to the Existing Premises shall apply to the Expansion Space. |
| 2.2. | Expansion Effective Date. As used herein, “Expansion Effective Date” means the earlier of (i) the date on which Tenant first occupies the Expansion Space for the purpose of conducting its business operations therein, or (ii) April 1, 2016. |
| 2.3. | Confirmation Letter. At any time after the Expansion Effective Date, Landlord may deliver to Tenant a notice substantially in the form of Exhibit C attached hereto, as a confirmation of the information set forth therein. Tenant shall execute and return (or, by written notice to Landlord, reasonably object to) such notice within 10 days after receiving it. |
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| 3.1. | Existing Premises from and after April 1, 2016. With respect to the Existing Premises from and after April 1, 2016, the Base Rent schedules set forth in Section 2., “Base Rent” of the Third Amendment, Section 2., “Base Rent” of the Second Amendment, Section 2., “Base Rent” of the First Amendment, and Section 1.4., “Base Rent” of the Original Lease shall be deleted in their entirety and the schedule of Base Rent for the Existing Premises shall be as follows: |
Period |
| Annual Rate Per Square Foot (rounded to the nearest 100th of a dollar) |
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| Monthly Base Rent |
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April 1, 2016 through March 31, 2017 |
| $ | 51.60 |
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| $ | 110,436.90 |
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April 1, 2017 through March 31, 2018 |
| $ | 53.15 |
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| $ | 113,754.29 |
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April 1, 2018 through March 31, 2019 |
| $ | 54.74 |
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| $ | 117,157.29 |
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April 1, 2019 through March 31, 2020 |
| $ | 56.38 |
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| $ | 120,667.30 |
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April 1, 2020 through March 31, 2021 |
| $ | 58.08 |
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| $ | 124,305.72 |
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April 1, 2021 through March 31, 2022 |
| $ | 59.82 |
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| $ | 128,029.76 |
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April 1, 2022 through March 31, 2023 |
| $ | 61.61 |
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| $ | 131,860.80 |
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April 1, 2023 through March 31, 2024 |
| $ | 63.46 |
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| $ | 135,820.27 |
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April 1, 2024 through March 31, 2025 |
| $ | 65.37 |
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| $ | 139,908.14 |
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April 1, 2025 through the Extended Expiration Date (i.e. March 31, 2026) |
| $ | 67.33 |
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| $ | 144,103.03 |
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All such Base Rent shall be payable by Tenant in accordance with the terms of the Lease.
| 3.2. | Expansion Space During Expansion Term. With respect to the Expansion Space during the Expansion Term, the schedule of Base Rent shall be as follows: |
Period During the Expansion Term |
| Annual Rate Per Square Foot (rounded to the nearest 100th of a dollar) |
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| Monthly Base Rent |
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Expansion Effective Date through March 31, 2017 |
| $ | 51.60 |
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| $ | 112,045.10 |
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April 1, 2017 through March 31, 2018 |
| $ | 53.15 |
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| $ | 115,410.80 |
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April 1, 2018 through March 31, 2019 |
| $ | 54.74 |
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| $ | 118,863.35 |
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April 1, 2019 through March 31, 2020 |
| $ | 56.38 |
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| $ | 122,424.47 |
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April 1, 2020 through March 31, 2021 |
| $ | 58.08 |
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| $ | 126,115.88 |
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April 1, 2021 through March 31, 2022 |
| $ | 59.82 |
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| $ | 129,894.15 |
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April 1, 2022 through March 31, 2023 |
| $ | 61.61 |
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| $ | 133,780.98 |
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April 1, 2023 through March 31, 2024 |
| $ | 63.46 |
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| $ | 137,798.10 |
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April 1, 2024 through March 31, 2025 |
| $ | 65.37 |
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| $ | 141,945.51 |
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April 1, 2025 through the Extended Expiration Date (i.e. March 31, 2026) |
| $ | 67.33 |
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| $ | 146,201.48 |
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All such Base Rent shall be payable by Tenant in accordance with the terms of the Lease.
Base Rent Abatement Applicable to the Expansion Space. Notwithstanding anything in this Amendment to the contrary, so long as Tenant is not in Default (as defined in Section 19 of the Original Lease), Tenant shall be entitled to an abatement of Base Rent in the amount of $112,045.10 per month applicable to seven (7) consecutive full calendar months of the Expansion Term commencing with the second (2nd) full calendar month of the Expansion Term. The total amount of Base Rent abated in accordance with the foregoing shall equal $784,315.70 (the “Abated Base Rent”). Only Base Rent shall be abated pursuant to this Section, and all Additional Rent (as defined in Section 3 of the Original Lease) and other costs and charges specified in this Amendment and/or the Lease shall remain as due and payable pursuant to the provisions of this Amendment and/or the Lease.
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| 4.1. | Cash Security Deposit. Landlord, pursuant to the terms of the Lease, currently retains a cash Security Deposit in the amount of$36,434.00 as security for Tenant's performance of its obligations under the Lease. Landlord and Tenant acknowledge that such Security Deposit was not previously reduced on January I, 2015 as contemplated by Section 3 of the First Amendment. Within thirty (30) days after following the satisfaction of Tenant's obligations under Section 4.2.A below, Landlord shall return such Security Deposit to Tenant by way of a check or credit against Base Rent next due under the Lease. |
| 4.2. | Replacement or Amendment of Existing Letter of Credit. |
| A. | Increase in Letter of Credit Amount. Pursuant to Section 6 of Exhibit F to the Original Lease, Tenant provided Landlord with a Letter of Credit (defined in Section 6.1 of Exhibit F to the Original Lease) issued by Wells Fargo Bank N.A. and described as Irrevocable Standby Letter of Credit Number IS0005128 dated November 16, 2011. Landlord and Tenant acknowledge that the Letter of Credit Amount (defined in Section 6.1 of Exhibit F to the Original Lease) was not previously reduced and, as such, the current Letter of Credit Amount is $1,000,000.00. Concurrently with Tenant's execution of this Amendment, Tenant shall increase the Letter of Credit Amount from $1,000,000.00 to $2,500,000.00 by way of either an amendment to the Letter of Credit or a replacement Letter of Credit that satisfies all of the requirements of Section 6 of Exhibit F to the Original Lease. If Tenant elects to provide Landlord with a replacement Letter of Credit, Landlord, thirty (30) days after its' receipt of the replacement Letter of Credit, shall return the existing Letter of Credit to the issuer of the existing Letter of Credit to Wells Fargo Bank along with Landlord's authorization to cancel the existing Letter of Credit. Notwithstanding the forgoing, if Wells Fargo Bank is the issuer of the replacement Letter of Credit, Landlord, upon receipt of Wells Fargo Bank's written commitment to issue the replacement Letter of Credit, shall work together in good faith with Wells Fargo Bank to exchange the existing Letter of Credit for the replacement Letter of Credit in accordance with commonly accepted industry practices. |
| B. | Reduction in Letter of Credit Amount. Section 6.6 of Exhibit F to the Original Lease (entitled Reduction in Letter of Credit Amount) is hereby amended to read as follows: |
“Provided that, during the 12 month period immediately preceding the effective date of any reduction of the Letter of Credit, no Default has occurred under this Lease which was not cured by Tenant within any applicable notice and cure periods (the “LC Reduction Conditions”), Tenant may reduce the Letter of Credit Amount so that the reduced Letter of Credit Amounts will be as follows: (a) $2,000,000.00 effective as of April 1, 2018; (b) $1,500,000.00 effective as of April 1, 2019; and (c) $1,000,000.00 effective as of April 1, 2021. If Tenant is not entitled to reduce the Letter of Credit Amount as of a particular reduction effective date due to Tenant's failure to satisfy the LC Reduction Conditions described above, then any subsequent reduction(s) Tenant is entitled to hereunder shall be reduced by the amount of the reduction Tenant would have been entitled to had Tenant satisfied the LC Reduction Conditions necessary for such earlier reduction. Notwithstanding anything to the contrary contained herein, if Tenant has been in Default under this Lease at any time prior to the effective date of any reduction of the Letter of Credit Amount and Tenant has failed to cure such Default within any applicable notice and cure period, then Tenant shall have no further right to reduce the Letter of Credit Amount as described herein. Any reduction in the Letter of Credit Amount shall be accomplished by Tenant providing Landlord with a substitute letter of credit in the reduced amount or an amendment to the then existing Letter of Credit reflecting the reduced amount.”
5. | Tenant's Share. With respect to the Expansion Space during the Expansion Term, Tenant's Share shall be 4.4317%. |
6. | Expenses and Taxes. |
| 6.1. | Existing Premises from and after April1, 2016. With respect to the Existing Premises from and after April 1, 2016, Tenant shall pay for Tenant's Share of Expenses and Taxes in accordance with the terms of the Lease; provided, however, that, with respect to the Existing Premises from and after April 1, 2016, the Base Year for Expenses and Taxes shall be calendar year 2016. |
| 6.2. | Expansion Space During Expansion Term. With respect to the Expansion Space during the Expansion Term, Tenant shall pay for Tenant's Share of Expenses and Taxes in accordance with the terms of the Lease; provided, however, that, with respect to the Expansion Space during the Expansion Term, the Base Year for Expenses and Taxes shall be calendar year 2016. |
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| 7.1. | Configuration and Condition of Existing Premises and Expansion Space. Tenant acknowledges that it is in possession of the Existing Premises and that it has inspected the Expansion Space, and agrees to accept each such space in its existing configuration and condition, without any representation by Landlord regarding its configuration or condition and without any obligation on the part of Landlord to perform or pay for any alteration or improvement, except as may be otherwise expressly provided in this Amendment. |
| 7.2. | Responsibility for Improvements to Existing Premises and Expansion Space. |
Landlord shall perform improvements to the Existing Premises and the Expansion Space in accordance with Exhibit B attached hereto.
8. | Other Pertinent Provisions. Landlord and Tenant agree that, effective as of the date of this Amendment (unless different effective date(s) is/are specifically referenced in this Section), the Lease shall be amended in the following additional respects: |
| 8.1. | California Public Resources Code § 25402.10. If Tenant (or any party claiming by, through or under Tenant) pays directly to the provider for any energy consumed at the Building, Tenant, promptly upon request, shall deliver to Landlord (or, at Landlord's option, execute and deliver to Landlord an instrument enabling Landlord to obtain from such provider) any data about such consumption that Landlord, in its reasonable judgment, is required to disclose to a prospective buyer, tenant or mortgage lender under California Public Resources Code § 25402.10 or any similar law. |
| 8.2. | California Civil Code Section 1938. Pursuant to California Civil Code § 1938, Landlord hereby states that the Existing Premises and the Expansion Space have not undergone inspection by a Certified Access Specialist (CASp) (defined in California Civil Code § 55.52). |
| 8.3. | Parking. With respect to the Existing Premises, Tenant currently has the right, but not the obligation, to lease up to an aggregate of 56 unreserved parking passes; provided, however, Tenant may convert up to three (3) of such 56 unreserved passes into three (3) reserved parking passes in the Parking Facility (as defined in Section 24 of the Original Lease). Such rights shall remain in place through the Extended Term. With respect to the Expansion Space during the Expansion Term, subject to the terms and conditions set forth in Section 24 of the Original Lease, as amended herein, Tenant shall have the right, but not the obligation, to lease up to 78 additional unreserved parking passes. Prior to the Expansion Effective Date, Tenant shall notify Landlord in writing of the number of additional unreserved parking passes which Tenant initially elects to lease during the Expansion Term. Thereafter, Tenant may increase or decrease the number of additional unreserved parking passes to be used by Tenant pursuant to this Section 8.3 upon a minimum of 30 days prior written notice to Landlord. Tenant shall pay Landlord the current rate of $180.00 per unreserved parking pass per month, plus applicable taxes, if any. Such parking rate shall be subject to increase from time to time to reflect the prevailing market rates consistently charged in the Parking Facility. |
| 8.4. | Notice Addresses. Any notice required under the terms of the Lease to be given to Landlord shall be sent to the following addresses: |
CA-10880 WILSHIRE LIMITED PARTNERSHIP
c/o Equity Office
10880 Wilshire Boulevard
Suite 1010
Los Angeles, CA 90024
Attention: Property Manager
With copies to:
CA-10880 WILSHIRE LIMITED PARTNERSHIP
c/o Equity Office
222 South Riverside Plaza
Suite 2000
Chicago, IL 60606
Attention: Managing Counsel
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Equity Office
222 South Riverside Plaza
Suite 2000
Chicago, IL 60606
Attention: Lease Administration
| 8.5. | Extension Option. Tenant shall have the right extend the Extended Term for the entire Premises only for one additional period of five (5) years pursuant to the terms and conditions set forth in Section 3., “Extension Option” of EXHIBIT F, “ADDITIONAL PROVISIONS” of the Original Lease; provided, however, all references to the phrase (a) “Term” shall be deleted and the phrase “Extended Term” shall be substituted therefore; and (b) “Expiration Date” shall be deleted and the phrase “Extended Expiration Date” shall be substituted therefore. |
| 8.6. | Acceleration Option. Section 4., “Acceleration Option” of EXHIBIT F, “ADDITIONAL PROVISIONS” of the Original Lease is hereby deleted in its entirety and of no further force and effect. |
9. | Miscellaneous. |
| 9.1. | This Amendment and the attached exhibits, which are hereby incorporated into and made a part of this Amendment, set forth the entire agreement between the parties with respect to the matters set forth herein. There have been no additional oral or written representations or agreements. Tenant shall not be entitled, in connection with entering into this Amendment, to any free rent, allowance, alteration, improvement or similar economic incentive to which Tenant may have been entitled in connection with entering into the Lease, except as may be otherwise expressly provided in this Amendment. |
| 9.2. | Except as herein modified or amended, the provisions, conditions and terms of the Lease shall remain unchanged and in full force and effect. |
| 9.3. | In the case of any inconsistency between the provisions of the Lease and this Amendment, the provisions of this Amendment shall govern and control. |
| 9.4. | Submission of this Amendment by Landlord is not an offer to enter into this Amendment but rather is a solicitation for such an offer by Tenant. Landlord shall not be bound by this Amendment until Landlord has executed and delivered it to Tenant. |
| 9.5. | Capitalized terms used but not defined in this Amendment shall have the meanings given in the Lease. |
| 9.6. | Tenant shall indemnify and hold Landlord, its trustees, members, principals, beneficiaries, partners, officers, directors, employees, mortgagee(s) and agents, and the respective principals and members of any such agents harmless from all claims of any brokers (other than L.A. Realty Partners) claiming to have represented Tenant in connection with this Amendment. Landlord shall indemnify and hold Tenant, its trustees, members, principals, beneficiaries, partners, officers, directors, employees, and agents, and the respective principals and members of any such agents harmless from all claims of any brokers claiming to have represented Landlord in connection with this Amendment. Tenant acknowledges that any assistance rendered by any agent or employee of any affiliate of Landlord in connection with this Amendment has been made as an accommodation to Tenant solely in furtherance of consummating the transaction on behalf of Landlord, and not as agent for Tenant. |
| 9.7. | Each signatory of this Amendment represents hereby that he or she has the authority to execute and deliver it on behalf of the party hereto for which such signatory is acting. |
[SIGNATURES ARE ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Amendment as of the day and year first above written.
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| LANDLORD: |
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| CA-10880 WILSHIRE LIMITED PARTNERSHIP, a |
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| Delaware limited partnership |
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| By: EOP Owner GP L.L.C., a Delaware limited liability company, its general partner |
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| By: | /s/ Frank Campbell |
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| Name: | Frank Campbell |
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| Title: | Managing Director |
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| TENANT: | ||
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| PUMA BIOTECHNOLOGY, INC., a Delaware corporation | ||
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| By: |
| /s/ Alan H. Auerbach |
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| Name: |
| Alan H. Auerbach |
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| Title: |
| Chief Executive Officer and President |
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| By: |
| /s/ Charles R. Eyler |
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| Name: |
| Charles R. Eyler |
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| Title: |
| Senior Vice President – Finance & Treasurer |
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OUTLINE AND LOCATION OF EXPANSION SPACE
TO BE ATTACHED
1
WORK LETTER
As used in this Exhibit B (this “Work Letter”), the following terms shall have the following meanings: “Agreement” means the Amendment of which this Work Letter is a part. The “Premises” shall mean the Existing Premises and the Expansion Space. “Tenant Improvements” means all improvements to be constructed in the Premises pursuant to this Work Letter. “Tenant Improvement Work” means the construction of the Tenant Improvements, together with any related work (including demolition) that is necessary to construct the Tenant Improvements.
1 ALLOWANCE.
1.1 Allowance. Tenant shall be entitled to a one-time tenant improvement allowance (the “Allowance”) in the aggregate amount of $1,818,380.00 (i.e., $55.00 per rentable square foot of the Expansion Space plus $15.00 per rentable square foot of the Existing Premises) to be applied toward (a) the Allowance Items (defined in Section 1.2 below) and/or (b) a credit against Base Rent applicable to the Expansion Space coming due under the Agreement from and after the last day of the eighth (8th) full calendar month of the Expansion Term and/or (c) the cost of purchasing furniture, fixtures, and equipment to be used in the Premises by Tenant and/or (d) costs associated with the installation of telephone and data cabling, and/or (e) costs associated with moving into the Expansion Space. Notwithstanding the foregoing, the total portion of the Allowance that is applied toward items (b), (c), (d) and/or (e) shall not exceed, in the aggregate, $645,815.00 (i.e., $10.00 per rentable square foot of the Expansion Space plus $15.00 per rentable square foot of the Existing Premises). Tenant, by written notice to Landlord (the “Allowance Notice”) shall advise Landlord of the manner in which Tenant desires to apply the Allowance. Any portion of the Allowance that is applied toward the cost of the Tenant Improvement Work shall applied in accordance with Section 1.2 below. Any portion of the Allowance that is applied as a credit against Base Rent shall be applied against the installment of Base Rent for the ninth (9th) full calendar month of the Expansion Term and, if necessary, consecutive calendar months thereafter. Any portion of the Allowance that is applied toward items (c), (d) and (e) shall be disbursed to Tenant within 45 days after Landlord's receipt of paid invoices from Tenant with respect to Tenant's actual costs of items (c), (d) and (e) as described above; provided that Tenant shall also be required to provide Landlord with unconditional waivers of mechanics liens with respect to any items that relate to work of a type for which a mechanics lien could be potentially be filed. Tenant shall be responsible for all costs associated with the Tenant Improvement Work, including the costs of the Allowance Items, to the extent such costs exceed the lesser of (i) the Allowance, or (ii) the aggregate amount that Landlord is required to disburse for such purpose pursuant to this Work Letter. Notwithstanding any contrary provision of this Agreement, if Tenant fails to use the entire Allowance by December 31, 2016, the unused amount shall revert to Landlord and Tenant shall have no further rights with respect thereto.
1.2 Disbursement of the Allowance. Except as otherwise provided in this Work Letter, the Allowance shall be disbursed by Landlord only for the following items (the “Allowance Items”): (a) the fees of the Architect (defined in Section 2.1 below) and the Engineers (defined in Section 2.1 below); (b) plan-check, permit and license fees relating to performance of the Tenant Improvement Work; (c) the cost of performing the Tenant Improvement Work, including after hours charges, testing and inspection costs, freight elevator usage, hoisting and trash removal costs, and contractors' fees and general conditions; (d) the cost of any change to the base, shell or core of the Expansion Space, Existing Premises or Building required by the Plans (defined in Section 2.1 below) (including if such change is due to the fact that such work is prepared on an unoccupied basis), including all direct architectural and/or engineering fees and expenses incurred in connection therewith; (e) the cost of any change to the Plans or Tenant Improvement Work required by Law; (f) the Landlord Supervision Fee (defined in Section 3.2.2 below); (g) sales and use taxes; and (h) all other costs expended by Landlord in connection with the performance of the Tenant Improvement Work.
2 PLANS AND PRICING.
2.1 Selection of Architect. Landlord shall retain the architect/space planner (the “Architect”) and the engineering consultants (the “Engineers”) of Landlord's choice to prepare all architectural plans for the Premises and all engineering working drawings relating to the structural, mechanical, electrical, plumbing, HVAC, life-safety, and sprinkler work in the Premises. The plans and drawings to be prepared by the Architect and the Engineers shall be referred to in this Work Letter as the “Plans.” Tenant shall be responsible for ensuring that all elements of the design of the Plans are suitable for
Tenant's use of the Premises, and neither the preparation of the Plans by the Architect or the Engineers nor Landlord's approval of the Plans shall relieve Tenant from such responsibility.
2.2 [Intentionally Omitted.]
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2.4 Additional Programming Information. Landlord and Tenant acknowledge that they have approved the space plan for the Premises prepared by , dated , 2015, job number (the “Space Plan”). Tenant shall deliver to Landlord, in writing, all information that, together with the Space Plan, is necessary, in the judgment of Landlord, the Architect and the Engineers, to complete the architectural, engineering and final architectural working drawings for the Premises in a form that is sufficient to enable subcontractors to bid on the work and to obtain all applicable permits for the Tenant Improvement Work (the “Construction Drawings”), including electrical requirements, telephone requirements, special HVAC requirements, plumbing requirements, and all interior and special finishes (collectively, the “Additional Programming Information”). The Additional Programming Information shall be consistent with Landlord's requirements for avoiding aesthetic, engineering or other conflicts with the design and function of the balance of the Building (collectively, the “Landlord Requirements”) and shall otherwise be subject to Landlord's reasonable approval. Landlord shall provide Tenant with notice approving or reasonably disapproving the Additional Programming Information within five (5) business days after the later of Landlord's receipt thereof or the mutual execution and delivery of this Agreement. If Landlord disapproves the Additional Programming Information, Landlord's notice of disapproval shall describe with reasonable specificity the basis for such disapproval and the changes that would be necessary to resolve Landlord's objections. If Landlord disapproves the Additional Programming Information, Tenant shall modify the Additional Programming Information and resubmit it for Landlord's review and approval. Such procedure shall be repeated as necessary until Landlord has approved the Additional Programming Information. If requested by Tenant, Landlord, in its sole and absolute discretion, may assist Tenant, or cause the Architect and/or the Engineers to assist Tenant, in preparing all or a portion of the Additional Programming Information; provided, however, that, whether or not the Additional Programming Information is prepared with such assistance, Tenant shall be solely responsible for the timely preparation and delivery of the Additional Programming Information and for all elements thereof and, subject to Section 1 above, all costs relating thereto.
2.5 Construction Drawings. After approving the Additional Programming Information, Landlord shall cause the Architect and the Engineers to prepare and deliver to Tenant Construction Drawings that conform to the Space Plan and the approved Additional Programming Information. Such preparation and delivery shall occur within 15 business days after the later of Landlord's approval of the Additional Programming Information or the mutual execution and delivery of this Agreement. Tenant shall approve or disapprove the Construction Drawings by notice to Landlord. If Tenant disapproves the Construction Drawings, Tenant's notice of disapproval shall specify any revisions Tenant desires in the Construction Drawings. After receiving such notice of disapproval, Landlord shall cause the Architect and/or the Engineers to revise the Construction Drawings, taking into account the reasons for Tenant's disapproval (provided, however, that Landlord shall not be required to cause the Architect or the Engineers to make any revision to the Construction Drawings that is inconsistent with the Landlord Requirements or that Landlord otherwise reasonably disapproves), and resubmit the Construction Drawings to Tenant for its approval. Such revision and resubmission shall occur within five (5) business days after the later of Landlord's receipt of Tenant's notice of disapproval or the mutual execution and delivery of this Agreement if such revision is not material, and within such longer period of time as may be reasonably necessary (but not more than 15 business days after the later of such receipt or such mutual execution and delivery) if such revision is material. Such procedure shall be repeated as necessary until Tenant has approved the Construction Drawings. The Construction Drawings approved by Landlord and Tenant are referred to in this Work Letter as the “Approved Construction Drawings”.
2.6 Construction Pricing. Within 10 business days after the Construction Drawings are approved by Landlord and Tenant, Landlord shall provide Tenant with Landlord's reasonable estimate (the “Construction Pricing Proposal”) of the cost of all Allowance Items to be incurred by Tenant in connection with the performance of the Tenant Improvement Work pursuant to the Approved Construction Drawings. Tenant shall provide Landlord with notice approving or disapproving the Construction Pricing Proposal. If Tenant disapproves the Construction Pricing Proposal, Tenant's notice of disapproval shall be accompanied by proposed revisions to the Approved Construction Drawings that Tenant requests in order to resolve its objections to the Construction Pricing Proposal, and Landlord shall respond as required under Section 2.7 below. Such procedure shall be repeated as necessary until the Construction Pricing Proposal is approved by Tenant. Upon Tenant's approval of the Construction Pricing Proposal, Landlord may purchase the items set forth in the Construction Pricing Proposal and commence construction relating to such items.
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2.7 Revisions to Approved Construction Drawings. If Tenant requests any revision to the Approved Construction Drawings, Landlord shall provide Tenant with notice approving or reasonably disapproving such revision, and, if Landlord approves such revision, Landlord shall have such revision made and delivered to Tenant, together with notice of any resulting change in the most recent Construction Pricing Proposal, if any, within 10 business days after the later of Landlord's receipt of such request or the mutual execution and delivery of this Agreement if such revision is not material, and within such longer period of time as may be reasonably necessary (but not more than 15 business days after the later of such receipt or such execution and delivery) if such revision is material, whereupon Tenant, within one (1) business day, shall notify Landlord whether it desires to proceed with such revision. If Landlord has commenced performance of the Tenant Improvement Work, then, in the absence of such authorization, Landlord shall have the option to continue such performance disregarding such revision. Landlord shall not revise the Approved Construction Drawings without Tenant's consent, which shall not be unreasonably withheld, conditioned or delayed.
2.8 Time Deadlines. Tenant shall use its best efforts to cooperate with Landlord and its architect, engineers and other consultants to complete all phases of the Plans, approve the Construction Pricing Proposal and obtain the permits for the Tenant Improvement Work as soon as possible after the execution of this Agreement, and Tenant shall meet with Landlord, in accordance with a schedule determined by Landlord, to discuss the parties' progress.
3 CONSTRUCTION.
3.1 Contractor. A contractor designated by Landlord (the “Contractor”) shall perform the Tenant Improvement Work. In addition, Landlord may select and/or approve of any subcontractors, mechanics and materialmen used in connection with the performance of the Tenant Improvement Work.
3.2 Construction.
3.2.1 Over-Allowance Amount. If the Construction Pricing Proposal exceeds the Allowance, then, concurrently with its delivery to Landlord of approval of the Construction Pricing Proposal, Tenant shall deliver to Landlord cash in the amount of such excess (the “Over-Allowance Amount”). Any Over-Allowance Amount shall be disbursed by Landlord before the Allowance and pursuant to the same procedure as the Allowance. After the Construction Pricing Proposal is approved by Tenant, if any revision is made to the Approved Construction Drawings or the Tenant Improvement Work that increases the Construction Pricing Proposal, or if the Construction Pricing Proposal is otherwise increased to reflect the actual cost of all Allowance Items to be incurred by Tenant in connection with the performance of the Tenant Improvement Work pursuant to the Approved Construction Drawings, then Tenant shall deliver any resulting Over-Allowance Amount (or any resulting increase in the Over-Allowance Amount) to Landlord immediately upon Landlord's request.
3.2.2 Landlord's Retention of Contractor. Landlord shall independently retain the Contractor to perform the Tenant Improvement Work in accordance with the Approved Construction Drawings. Tenant shall pay a construction supervision and management fee (the “Landlord Supervision Fee”) to Landlord in an amount equal to two percent (2%) of the aggregate amount of all Allowance Items other than the Landlord Supervision Fee.
3.2.3 Contractor's Warranties. Tenant waives all claims against Landlord relating to any defects in the Tenant Improvements; provided, however, that if, within 30 days after substantial completion of the Tenant Improvement Work, Tenant provides notice to Landlord of any non-latent defect in the Tenant Improvements, or if, within 11 months after substantial completion of the Tenant Improvement Work, Tenant provides notice to Landlord of any latent defect in the Tenant Improvements, then Landlord shall, at its option, either (a) assign to Tenant any right Landlord may have under the Construction Contract (defined below) to require the Contractor to correct, or pay for the correction of, such defect, or (b) at Tenant's expense, use reasonable efforts to enforce such right directly against the Contractor for Tenant's benefit. As used in this Work Letter, “Construction Contract” means the construction contract between Landlord and the Contractor pursuant to which the Tenant Improvements will be constructed.
4 COMPLETION.
Tenant acknowledges and agrees that the Tenant Improvement Work may be performed during Building HVAC Hours before or after the Expansion Effective Date. Landlord and Tenant shall cooperate with each other in order to enable the Tenant Improvement Work to be performed in a timely manner and with as little inconvenience to the operation of Tenant's business as is reasonably possible. Notwithstanding any contrary provision of this Agreement, any delay in the completion of the Tenant Improvement Work or inconvenience suffered by Tenant during the performance of the Tenant Improvement Work shall not delay the Expansion Effective Date, nor shall it subject Landlord to any liability for any loss or damage resulting therefrom or entitle Tenant to any credit, abatement or adjustment of rent or other sums payable under the Lease.
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Notwithstanding any contrary provision of this Agreement, if Tenant defaults under this Agreement before the Tenant Improvement Work is completed, Landlord's obligations under this Work Letter shall be excused until such default is cured and Tenant shall be responsible for any resulting delay in the completion of the Tenant Improvement Work. This Work Letter shall not apply to any space other than the Existing Premises and the Expansion Space.
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10880 WILSHIRE BOULEVARD
CONFIRMATION LETTER
, 2015
PUMA BIOTECHNOLOGY, INC.
10880 Wilshire Boulevard
Suite 2150
Los Angeles, California
Re: | Fourth Amendment (the “Amendment”) dated ,2015, between CA-10880 WILSHIRE LIMITED PARTNERSHIP, a Delaware limited partnership (“Landlord”), and PUMA BIOTECHNOLOGY, INC., a Delaware corporation (“Tenant”), concerning Suite 1700 (the “Expansion Space”) on the 17th floor of the building located at 10880 Wilshire Boulevard, Los Angeles, California. |
Lease ID:
Business Unit Number:
Dear:
In accordance with the Amendment, Tenant accepts possession of the Expansion Space and confirms the following:
1. The Expansion Effective Date is and the Extended Expiration Date is
Please acknowledge the foregoing by signing all three (3) counterparts of this letter in the space provided below and returning two (2) fully executed counterparts to my attention. Please note that, pursuant to Section 2.3 of the Amendment, if Tenant fails to execute and return (or, by notice to Landlord, reasonably object to) this letter within 10 days after receiving it, Tenant shall be deemed to have executed and returned it without exception.
Agreed and Accepted as of , 2015.
“Tenant”: |
| “Landlord”: | ||
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| EQUITY OFFICE MANAGEMENT, L.L.C., | |
PUMA BIOTECHNOLOGY, INC., a |
| as agent for CA-10880 Wilshire Limited | ||
Delaware corporation |
| Partnership | ||
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Exhibit C
1
FORM OF LETTER OF CREDIT
[Name of Financial Institution]
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| Irrevocable Standby | ||||
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| Letter of Credit | ||||
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| No. |
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| Issuance Date: |
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| Expiration Date: |
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| Applicant: |
| PUMA | ||
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| BIOTECHNOLOGY, INC., a Delaware | ||||
Beneficiary
CA-10880 WILSHIRE LIMITED PARTNERSHIP, a Delaware limited partnership
Equity Office
222 South Riverside Plaza, Suite 2000
Chicago, Illinois 60606
Attention: Treasury Department.
A copy of any notices
and amendments should be sent to:
CA-10880 Wilshire Limited Partnership
c/o Equity Office
10880 Wilshire Boulevard
Suite 1010
Los Angeles, CA 90024
Attention: Property Manager
Ladies/Gentlemen:
We hereby establish our Irrevocable Standby Letter of Credit in your favor for the account of the above referenced Applicant in the amount of U.S. Dollars ($ ) available for payment at sight by your draft drawn on us when accompanied by the following documents:
1. | An original copy of this Irrevocable Standby Letter of Credit. |
2. | Beneficiary's dated statement purportedly signed by an authorized signatory or agent reading: “This draw in the amount of U.S. Dollars ($ ) under your Irrevocable Standby Letter of Credit No. represents funds due and owing to us pursuant to the terms of that certain lease by and between CA-10880 WILSHIRE LIMITED PARTNERSHIP, a Delaware limited partnership, as landlord, and PUMA BIOTECHNOLOGY, INC., a Delaware corporation, as tenant, and/or any amendment to the lease or any other agreement between such parties related to the lease.” |
It is a condition of this Irrevocable Standby Letter of Credit that it will be considered automatically renewed for a one year period upon the expiration date set forth above and upon each anniversary of such date, unless at least 45 days prior to such expiration date or applicable anniversary thereof, we notify you in writing, by certified mail return receipt requested or by recognized overnight courier service at the addresses set forth above, that we elect not to so renew this Irrevocable Standby Letter of Credit. In addition to the foregoing, we understand and agree that you shall be entitled to draw upon this Irrevocable Standby Letter of Credit in accordance with 1 and 2 above in the event that we elect not to renew this Irrevocable Standby Letter of Credit and, in addition, you provide us with a dated statement purportedly signed by an authorized signatory or agent of Beneficiary stating that the Applicant has failed to provide you with an acceptable substitute irrevocable standby letter of credit in accordance with the terms of the above referenced lease. We further acknowledge and agree that: (a) upon receipt of the documentation required herein, we will honor your draws against this Irrevocable Standby Letter of Credit without inquiry into the accuracy of Beneficiary's signed statement
Exhibit D
1
and regardless of whether Applicant disputes the content of such statement; (b) this Irrevocable Standby Letter of Credit shall permit partial draws and, in the event you elect to draw upon less than the full stated amount hereof, the stated amount of this Irrevocable Standby Letter of Credit shall be automatically reduced by the amount of such partial draw; and (c) you shall be entitled to transfer your interest in this Irrevocable Standby Letter of Credit from time to time and more than one time without our approval and without charge. In the event of a transfer, we reserve the right to require reasonable evidence of such transfer as a condition to any draw hereunder.
This Irrevocable Standby Letter of Credit is subject to the International Standby Practices
(ISP98) ICC Publication No. 590.
We hereby engage with you to honor drafts and documents drawn under and in compliance with the terms of this Irrevocable Standby Letter of Credit.
All communications to us with respect to this Irrevocable Standby Letter of Credit must be addressed to our office located at to the attention of .
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| Very truly yours, |
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Exhibit D
2