Exhibit 10.17
FIRST AMENDMENT TO LEASE
This FIRST AMENDMENT TO LEASE (this "First Amendment") is made and entered into as of the 16th day of January, 2019, by and between HCP TORREYANA, LLC, a Delaware limited liability company ("Landlord"), and BIOATLA, LLC, a Delaware limited liability company ("Tenant").
R E C I T A L S :
A G R E E M E N T :
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
Expansion Lease Year* |
Annual Base Rent | Monthly Installment of Base Rent | Approximate Monthly Base Rent per Rentable Square Foot |
1 | $240,855.36 | $20,071.28 | $0.89 |
2 | $335,573.76 | $27,964.48 | $1.24 |
3 | $552,072.96 | $46,006.08 | $2.04 |
4 | $646,791.36 | $53,899.28 | $2.39 |
5 | $660,322.56 | $55,026.88 | $2.44 |
6 | $687,384.96 | $57,282.08 | $2.54 |
* For purposes of this First Amendment, the term "Expansion Lease Year" shall mean each consecutive twelve (12) month period during the Expansion Term; provided, however, that the first (1st) Expansion Lease Year shall commence on the Expansion Commencement Date and end on the
last day of the month in which the first anniversary of the Expansion Commencement Date occurs (or if the Expansion Commencement Date is the first (1st) day of a calendar month, then the first (1st) Expansion Lease Year shall commence on the Expansion Commencement Date and end on the day immediately preceding the first (1st) anniversary of the Expansion Commencement Date), and further provided that the last Expansion Lease Year shall end on the New Expiration Date.
[signatures follow on next page]
IN WITNESS WHEREOF, this First Amendment has been executed as of the day and year first above written.
"LANDLORD" |
| "TENANT" |
HCP TORREYANA, LLC, |
| BIOATLA, LLC, |
a Delaware limited liability company |
| a Delaware limited liability company |
By: /s/ Michael Dorris |
| By: /s/ Jay Short |
Name: Michael Dorris |
| Name: Jay Short |
Its: Vice President |
| Its: Chairman & CEO |
EXHIBIT A
OUTLINE OF EXPANSION PREMISES
EXHIBIT B
TENANT WORK LETTER
This Tenant Work Letter shall set forth the terms and conditions relating to the initial improvement of the Expansion Premises for Tenant following the date of this First Amendment. This Tenant Work Letter is essentially organized chronologically and addresses the issues of construction, in sequence, as such issues will arise during construction in the Expansion Premises.
SECTION 1
CONDITION OF EXPANSION PREMISES
Tenant acknowledges that except as provided below, Tenant shall accept the Expansion Premises in their existing, "as-is" condition on the date of delivery thereof to Tenant. Except for the payment of the Tenant Improvement Allowance as provided in Section 2, below, Landlord shall have no obligation to make or pay for any improvements to the Expansion Premises. Notwithstanding anything set forth in this First Amendment to the contrary (but without limiting any other repair and maintenance obligations of Landlord that are expressly set forth in the Lease, as amended), upon the Expansion Commencement Date, Landlord shall cause (i) the Base Building to be in good working condition and repair, (ii) the Base Building and the Common Area to be compliant with Applicable Laws which were enacted and enforced as of the Lease Commencement Date to the extent necessary to obtain or maintain a certificate of occupancy (or its legal equivalent) for the Expansion Premises for general office use (collectively, the "Delivery Conditions"). Further, Landlord shall, at Landlord's sole cost and expense (which shall not be deemed an Operating Expense), make such repairs or replacements as necessary to satisfy the Delivery Conditions; provided that Tenant delivers written notice thereof to Landlord prior to the date that occurs thirty (30) days following Tenant's occupancy of the Expansion Premises for the Permitted Use; and provided further that any such repair, replacement or work was not caused by the misuse, misconduct, damage, destruction, omissions, and/or negligence (collectively, "Tenant Damage") of Tenant, its subtenants and/or assignees, if any, or any company which is acquired, sold or merged with Tenant, or by any modifications to the Tenant Improvements, Alterations, or other improvements constructed by or on behalf of Tenant. To the extent the Base Building is not in the Delivery Condition upon the Expansion Commencement Date as a result of Tenant Damage, then Tenant shall reimburse Landlord for an equitable proportion of the reasonable cost of such repair. If (1) it is determined that the Base Building was not in the Delivery Condition upon the Expansion Commencement Date, and (2) Tenant delivers written notice thereof to Landlord prior to the date that occurs thirty (30) days following Tenant's occupancy of the Expansion Premises for the Permitted Use, then Landlord shall not be liable to Tenant for any damages, but as Tenant's sole remedy (but without limiting Tenant's right to abate Base Rent, Tenant's Share of Direct Expenses and any parking charges in accordance with the terms and conditions of Section 19.5.2 of the Lease), Landlord shall, at no cost to Tenant (and which shall not be included in Operating Expenses), subject to the terms and conditions of this Section 1 above, promptly commence such work or take such other action as may be necessary to cause the Delivery Conditions to be satisfied, all to the extent not caused by Tenant Damage, and Landlord shall thereafter diligently pursue the same to completion.
SECTION 2
TENANT IMPROVEMENTS
(ii) invoices from all of "Tenant's Agents," as that term is defined in Section 4.1.2 of this Tenant Work Letter, for labor rendered and materials for the Expansion Premises; (iii) executed mechanic's lien releases, as applicable, from all of Tenant's Agents which shall comply with the appropriate provisions, as reasonably determined by Landlord, of California Civil Code Sections 8132, 8134, 8136 and 8138 (provided that for sums that are the subject of the current disbursement request, conditional mechanic's lien releases shall be acceptable, provided that Tenant also submits unconditional mechanic's lien releases for all sums previously paid in connection with any and all prior disbursement requests); and (iv) all other information reasonably requested by Landlord. Tenant's request for payment shall be deemed Tenant's acceptance and approval of the work furnished and/or the materials supplied as set forth in Tenant's payment request. Within forty-five
(45) days thereafter, Landlord shall deliver a check to Tenant made payable to Tenant in payment of the lesser of: (A) the amounts so requested by Tenant as set forth in this Section 2.2.3.1, above (or, subject to the terms of Section 4.2.1, below, a percentage thereof), and (B) the balance of any remaining available portion of the Tenant Improvement Allowance , provided that Landlord does not dispute any request for payment based on non-compliance of any work with the "Approved Working Drawings," as that term is defined in Section 3.5 below, or due to any substandard work. Landlord's payment of such amounts shall not be deemed Landlord's approval or acceptance of the work furnished or materials supplied as set forth in Tenant's payment request.
2.4 Building Standards. The quality of Tenant Improvements shall be in keeping with the existing improvements in the Premises.
SECTION 3
CONSTRUCTION DRAWINGS
reminder notice setting forth such failure (which reminder notice shall include a copy of such Final Space Plan) and containing the following sentence at the top of such notice in bold, capitalized font at least twelve (12) points in size: "LANDLORD'S FAILURE TO RESPOND TO THIS NOTICE WITHIN FIVE (5) BUSINESS DAYS SHALL RESULT IN LANDLORD'S
DEEMED APPROVAL OF THE FINAL SPACE PLAN" (the "Final Space Plan Reminder Notice"). If Landlord fails to respond with its approval or disapproval within five (5) business days after its receipt of the Final Space Plan Reminder Notice, then the Final Space Plan shall be deemed approved by Landlord.
Drawings Reminder Notice"). If Landlord fails to respond with its approval or disapproval within five (5) business days after its receipt of the Final Working Drawings Reminder Notice, then the Final Working Drawings shall be deemed approved by Landlord.
3.5 Approved Working Drawings. The Final Working Drawings shall be approved by Landlord (the "Approved Working Drawings") prior to the commencement of construction of the Expansion Premises by Tenant. Concurrently with Tenant's delivery of the Final Working Drawings to Landlord for Landlord's approval, Tenant may submit the same to the appropriate municipal authorities for all applicable building permits. Tenant hereby agrees that neither Landlord nor Landlord's consultants shall be responsible for obtaining any building permit or certificate of occupancy for the Expansion Premises and that obtaining the same shall be Tenant's responsibility; provided, however, that Landlord shall cooperate with Tenant in executing permit applications and performing other ministerial acts reasonably necessary to enable Tenant to obtain any such permit or certificate of occupancy. No changes, modifications or alterations in the
Approved Working Drawings may be made without the prior written consent of Landlord, which shall not be unreasonably withheld, conditioned, or delayed.
SECTION 4
CONSTRUCTION OF THE TENANT IMPROVEMENTS
(5) business day period, then Tenant may send Landlord a reminder notice setting forth such failure and containing the following sentence at the top of such notice in bold, capitalized font at least twelve (12) points in size: "LANDLORD'S FAILURE TO RESPOND TO THIS NOTICE WITHIN TWO (2) BUSINESS DAYS SHALL RESULT IN LANDLORD'S DEEMED
APPROVAL OF THE TENANT'S AGENTS" (the "Tenant's Agents Reminder Notice"). If Landlord fails to respond with its approval or disapproval within two (2) business days after its receipt of the Tenant's Agents Reminder Notice, then the Tenant's Agents selected by Tenant shall be deemed approved by Landlord.
own funds once the Tenant Improvement Allowance is exhausted, but Tenant shall continue to provide Landlord with the documents described in Sections 2.2.2.1(i), (ii), (iii) and (iv) of this Tenant Work Letter, above, for Landlord's review, provided that the delivery of such documents to Landlord shall not be a condition precedent to Tenant paying such costs.
(iii) building material manufacturer's specifications.
disapproved. Any such defects or deviations shall be rectified by Tenant at no expense to Landlord, provided however, that in the event Landlord determines that a defect or deviation exists that might adversely affect the mechanical, electrical, plumbing, heating, ventilating and air conditioning or
life-safety systems of the Building, the structure or exterior appearance of the Building or any other tenant's use of such other tenant's leased premises, Landlord may, take such action as Landlord reasonably deems necessary, at Tenant's expense and without incurring any liability on Landlord's part, to correct any such defect, deviation and/or matter, including, without limitation, causing the cessation of performance of the construction of the Tenant Improvements until such time as the defect, deviation and/or matter is corrected to Landlord's reasonable satisfaction.
(y) to certify to the best of their knowledge that the "record-set" of as-built drawings are true and correct, which certification shall survive the expiration or termination of the Lease, as amended, and (z) to deliver to Landlord two (2) sets of copies of such record set of drawings (hard copy and CAD files) within ninety (90) days following issuance of a certificate of occupancy for the Expansion Premises, and (ii) Tenant shall deliver to Landlord a copy of all warranties, guaranties, and operating manuals and information relating to the improvements, equipment, and systems in the Expansion Premises. Within fifteen (15) days after request by Tenant following the Substantial Completion of the Tenant Improvements, Landlord will acknowledge its approval of the Tenant Improvements (provided that such approval has been granted) by placing its signature on a Contractor’s Certificate of Substantial Completion fully executed by the Architect, Contractor and Tenant. Landlord’s approval shall not create any contingent liabilities for Landlord with respect to any latent quality, design, Code compliance or other like matters that may arise subsequent to Landlord’s approval.
SECTION 5
MISCELLANEOUS