This Fourth Amendment to Lease (this “Fourth Amendment”) is made and entered into by and between KBS NORTH CREEK, LLC, a Delaware limited liability company (“Landlord”), as successor-in-interest to RREEF America REIT II Corp. KK (“Original Landlord”), and ALDER BIOPHARMACEUTICALS, INC., a Delaware corporation (“Tenant”), and shall be effective for all purposes as of the date that this Fourth Amendment is fully executed (the “Effective Date”).
WHEREAS, Landlord and Tenant are parties to that certain Lease dated for reference purposes August 5, 2005, originally entered into by and between Original Landlord and Tenant (the “Original Lease”), as amended by (i) that certain First Amendment to Lease dated as of February 1, 2008 (the “First Amendment”), (ii) that certain Second Amendment to Lease dated as of September 23, 2010 (the “Second Amendment”), and (iii) that certain Third Amendment to Lease dated as of August 21, 2013 (the “Third Amendment”) (the Original Lease, as amended by the First Amendment, the Second Amendment, and the Third Amendment, is hereinafter referred to as the “Lease”), pursuant to which Tenant leases from Landlord certain premises containing 36,654 square feet of space (the “Current Premises”) consisting of (i) 25,440 square feet of space comprising the entirety of the building located at 11804 North Creek Parkway S, Building 6, Bothell, Washington 98011 (“Building 6”) and (ii) 11,214 square feet of space in the building located at 18702 North Creek Parkway S, Bothell, Washington 98011 (“Building 4”), which Building 4 and Building 6 are part of that certain building complex known as the North Creek Parkway Center, consisting of six (6) buildings located at 18912, 18916, 18804, 18702, 18706, and 11804 North Creek Parkway, Bothell, Washington (the “Building Complex”);
WHEREAS, Landlord has succeeded to all the right, title and interest of the “Landlord” under the Lease as successor-in-interest to Original Lease; and
WHEREAS, Landlord and Tenant desire to expand the “Premises” (as such term is used in the Lease), extend the Term of the Lease and further amend the Lease, as more particularly described hereinbelow;
NOW, THEREFORE, pursuant to the foregoing, and in consideration of the mutual covenants and agreements contained herein and in the Lease, the receipt and sufficiency of which are hereby acknowledged, the Lease is hereby amended as follows:
1. | Defined Terms. All capitalized terms used herein shall have the same meaning as defined in the Lease, unless otherwise defined in this Fourth Amendment. |
period, the “Third Extension Term”), upon and subject to all of the existing terms of the Lease, except as otherwise hereinafter provided. |
3. | Expansion of Premises. The parties hereby agree that the “Premises” (as such term is used in the Lease) shall be expanded in accordance with the terms set forth below: |
| acknowledges that Landlord’s Preparatory Work for the Suite 202 Expansion Premises cannot begin until after the Existing Tenant Suite 202 Surrender Date. |
| return within ten (10) days after receipt, in order to acknowledge the date upon which the respective expansion date occurred. Tenant’s failure to execute and return such commencement certificate within the applicable ten (10) day period shall be deemed to be Tenant’s approval of the applicable commencement certificate and the expansion date set forth therein. Landlord’s failure to send such commencement certificate shall have no effect on the expansion date. |
Period | Rate/Rsf/Annum (approx.) | Monthly Installment |
03/01/2017 – 01/31/2018 | $18.25, NNN | $55,744.63, NNN |
02/01/2018 – 07/31/2018 | $18.80, NNN |
Period | Rate/Rsf/Month (approx.) | Monthly Installment |
12/01/2016 – 11/30/2017 | $1.39, NNN | |
12/01/2017 – 07/31/2018 | $1.43, NNN |
Expansion Date, Tenant’s Proportionate Share for the Suite 202 Expansion Premises shall be 24.3378% (14,490 rsf/59,537 rsf) with respect to Building 4 and 7.058% (14,490 rsf/205,298 rsf) with respect to the Building Complex; and (iii) effective as of the Suite 213 Expansion Date, Tenant’s Proportionate Share for the Suite 213 Expansion Premises shall be 2.983% (1,776 rsf/59,537 rsf) with respect to Building 4 and 0.8651% (1,776 rsf/205,298 rsf) with respect to the Building Complex. Expenses and Taxes for the calendar year 2015 are estimated to be $7.33/rsf/annum. |
13. | Landlord’s Notice Address. Landlord’s address for all notices to be delivered under the Lease is hereby amended to be as follows (or such other address as Landlord may designate in writing): |
1909 214th Street South East, Suite 101
800 Newport Center Drive, Suite 700
Newport Beach, California 92660
Attn: Mark Brecheen, Senior Vice President
SIGNATURE PAGE TO FOURTH AMENDMENT TO LEASE
BY AND BETWEEN KBS NORTH CREEK, LLC, AS LANDLORD,
AND ALDER BIOPHARMACEUTICALS, INC., AS TENANT
IN WITNESS WHEREOF, Landlord and Tenant, acting herein by duly authorized individuals, have caused these presents to be executed as of the dates set forth below, to be effective for all purposes, however, as of the Effective Date set forth herein.
a Delaware limited liability company
By: KBS Capital Advisors, LLC,
a Delaware limited liability company,
Date: November 12, 2015_
ALDER BIOPHARMACEUTICALS, INC.,
Name: Randall C. Schatzman, Ph. D.
718200423.3Signature Page - 1
I certify that I know or have satisfactory evidence that Mark Brecheen is the person who appeared before me, and said person acknowledged that he signed this instrument, on oath stated that he was authorized to execute the instrument and acknowledged it as the Senior Vice President of KBS Capital Advisors, LLC, a Delaware limited liability company, as the authorized agent of KBS North Creek, LLC, a Delaware limited liability company, to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument.
Notary Public, in and for the State
of California, residing at __________________________
My Commission Expires ____________
I certify that I know or have satisfactory evidence that Randall C. Schatzman is the person who appeared before me, and said person acknowledged that he/she signed this instrument, on oath stated that he/she was authorized to execute the instrument and acknowledged it as the President and CEO of ALDER BIOPHARMACEUTICALS, INC., a Delaware corporation, to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument.
Notary Public, in and for the State
of WA , residing at Bothell, WA____________
My Commission Expires _January 22, 2017_______
718200423.3Signature Page - 2
CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California)
County of Orange)
On December 11, 2015 before me, B. Arata, Notary Public, personally appeared Mark Brecheen, who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature /s/ B. Arata
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THIS WORK LETTER is attached as Exhibit B to the Fourth Amendment to Lease between KBS NORTH CREEK, LLC, a Delaware limited liability company, as Landlord, and ALDER BIOPHARMACEUTICALS, INC., a Delaware corporation, as Tenant, and constitutes the further agreement between Landlord and Tenant as follows:
a)Landlord agrees to furnish or perform, at Landlord’s sole cost and expense, those items of construction and those improvements (the “Fourth Amendment Improvements”) specified below:
b)If Tenant shall desire any changes in the Fourth Amendment Improvements, Tenant shall so advise Landlord in writing and Landlord shall determine whether such changes can be made in a reasonable and feasible manner. Any and all costs of reviewing any requested changes, and any and all costs of making any changes to the Fourth Amendment Improvements which Tenant may request and which Landlord may agree to shall be at Tenant’s sole cost and expense and shall be paid to Landlord upon demand and before execution of the change order.
c)Landlord shall proceed with and complete the construction of the Fourth Amendment Improvements. As soon as such improvements have been Substantially Completed, Landlord shall notify Tenant in writing of the date that the Fourth Amendment Improvements were Substantially Completed. The Fourth Amendment Improvements shall be deemed substantially completed (“Substantially Completed”) when, in the opinion of the Landlord’s architect (whether an employee or agent of Landlord or a third party architect) (“Architect”), the Fourth Amendment Improvements are substantially completed except for punch list items which do not prevent in any material way the use of the Premises for the purposes for which they were intended. In the event Tenant, its employees, agents, or contractors cause construction of such Fourth Amendment Improvements to be delayed, the date of Substantial Completion shall be deemed to be the date that, in the opinion of the Architect, Substantial Completion would have occurred if such delays had not taken place. Without limiting the foregoing, Tenant shall be solely responsible for delays caused by Tenant’s request for any changes in the plans, Tenant’s request for change orders that result in unanticipated long lead items or Tenant’s interference with the construction of the Fourth Amendment Improvements (each of the foregoing, a “Tenant Delay”), and such Tenant Delays shall not cause a deferral of the applicable expansion date for each of the Fourth Amendment Expansion Premises beyond what it otherwise would have been.
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After the applicable expansion date Tenant shall, upon demand, execute and deliver to Landlord a letter of acceptance of delivery of the applicable Fourth Amendment Expansion Premises. In the event of any dispute as to the Fourth Amendment Improvements, the certificate of the Architect shall be conclusive absent manifest error.
d)The failure of Tenant to take possession of or to occupy any portion of the Fourth Amendment Expansion Premises shall not serve to relieve Tenant of obligations arising on the applicable expansion date or delay the payment of Rent by Tenant.
e)Except for incomplete punch list items, Tenant upon the applicable expansion date shall have and hold the applicable Fourth Amendment Expansion Premises as the same shall then be without any liability or obligation on the part of Landlord for making any further alterations or improvements of any kind in or about the Fourth Amendment Expansion Premises.
f)Notwithstanding anything herein to the contrary, Tenant acknowledges that the Fourth Amendment Improvements will be completed while Tenant occupies the Premises and may be performed during normal business hours for Building 4. Tenant agrees to cooperate with Landlord and to make the Premises reasonably available to Landlord and its contractors for the performance of such Fourth Amendment Improvements. Tenant acknowledges that some interruptions and/or interference with Tenant’s business may occur during the course of the Fourth Amendment Improvements, but agrees that Landlord shall not be liable to Tenant for any damage caused by any interruptions and/or inconveniences to Tenant or its business as a result of the Fourth Amendment Improvements, and that no interruptions or inconveniences to Tenant or its business suffered as a result of the Fourth Amendment Improvements shall constitute an eviction of Tenant from the Premises, whether constructive or otherwise, and Tenant shall in no event be excused from paying the rental that it is scheduled to pay pursuant to the terms of the Lease, as amended herein. Landlord and Tenant shall cooperate and cause their respective employees, agents and contractors to cooperate with the other during said period in order to complete the Fourth Amendment Improvements as well as to minimize any interference with Tenant’s business operations in the Premises. Such cooperation by Tenant shall include, by way of example only and not in limitation, moving, packing, and/or other temporary relocation of Tenant’s furniture, fixtures, equipment, artwork and other personal property within the Premises at Tenant’s expense.
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THIS RIGHT OF FIRST OFFER is attached as Exhibit C to the Fourth Amendment to Lease between KBS NORTH CREEK, LLC, a Delaware limited liability company, as Landlord, and ALDER BIOPHARMACEUTICALS, INC., a Delaware corporation, as Tenant, and constitutes the further agreement between Landlord and Tenant as follows:
a)“Offered Space” shall mean any leasable space that becomes available during the Term of the Lease (as extended by the Third Extension Term) in the Building Complex. Tenant’s right of first offer in and to each Offered Space offered by Landlord to Tenant pursuant to this Exhibit C shall each be separate, one-time rights of first offer, subject to the terms and conditions contained in the First Offer Notice (as said term is defined below) for such specific space.
b)Provided that as of the date of the giving of any First Offer Notice, (i) Tenant is the Tenant originally named herein, (ii) Tenant actually occupies at least 55,548 rentable square feet of space in the Building Complex, and (iii) no event of default or event which but for the passage of time or the giving of notice, or both, would constitute an event of default has occurred and is continuing, if at any time during the Term of the Lease any such Offered Space is vacant and unencumbered by any rights of any third party, then Landlord, before offering such Offered Space to anyone, other than the tenant then occupying such space (or its affiliates), shall offer to Tenant the right to include the Offered Space within the Premises on the same terms and conditions upon which Landlord intends to offer the Offered Space for lease; provided, however and notwithstanding anything herein to the contrary, in the event that the Tenant’s Notice (as hereinafter defined) is delivered to Landlord no later than July 31, 2016, then and in such event, Tenant shall have the right to request that (a) the Term of the Lease with respect to such Offered Space be co-terminus with the then-existing Term of the Lease and (b) the Annual Rent payable with respect to such Offered Space shall be equal to the same amounts (based on a per rentable square foot basis) required to be paid with respect to the then-existing Premises, as such rental rate may escalate from time to time, provided that Tenant shall accept such Offered Space in its existing “AS-IS”, “WHERE-IS” and “WITH ALL FAULTS” condition. Notwithstanding anything to the contrary herein or in the Lease, the right of first offer granted to Tenant under this Exhibit C shall be subject and subordinate to (i) the rights of all tenants at the Building Complex under existing leases, and (ii) the herein reserved right of Landlord to renew or extend the term of any lease with the tenant then occupying such space (or any of its affiliates), whether pursuant to a renewal or extension option in such lease or otherwise.
c)Such offer shall be made by Landlord to Tenant in a written notice (hereinafter called the “First Offer Notice”) which offer shall designate the space being offered and shall specify the terms which Landlord intends to offer with respect to any such Offered Space. Tenant may accept the offer set forth in the First Offer Notice by delivering to Landlord an unconditional acceptance (hereinafter called “Tenant’s Notice”) of such offer within five (5) business days after delivery by Landlord of the First
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Offer Notice to Tenant. Time shall be of the essence with respect to the giving of Tenant’s Notice. If Tenant does not accept (or fails to timely accept) an offer made by Landlord pursuant to the provisions of this Exhibit C with respect to the Offered Space designated in the First Offer Notice and execute the ROFO Amendment (defined below) within thirty (30) days after the delivery of the First Offer Notice, then Landlord shall be under no further obligation with respect to such space by reason of this Exhibit C.
d)Tenant must accept all Offered Space offered by Landlord at any one time if it desires to accept any of such Offered Space and may not exercise its right with respect to only part of such space. In addition, if Landlord desires to lease more than just any such Offered Space to one tenant, Landlord may offer to Tenant pursuant to the terms hereof all such space which Landlord desires to lease, and Tenant must exercise its rights hereunder with respect to all such space and may not insist on receiving an offer for just such Offered Space.
e)If Tenant at any time declines any First Offer Notice to any Offered Space offered by Landlord, Tenant shall be deemed to have irrevocably waived all further rights to such Offered Space under this Exhibit C, and Landlord shall be free to lease such Offered Space to third parties including on terms which may be less favorable to Landlord than those offered to Tenant.
f)In the event that Tenant exercises its rights to any Offered Space pursuant to this Exhibit C, then Landlord shall prepare, and Tenant shall execute, an amendment to the Lease which confirms such expansion of the Premises and the other provisions applicable thereto (the “ROFO Amendment”).
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