Exhibit 10.9
Executed Version
Dated January 30, 2013
Supplementary Agreement to Lease of Premises
in Beijing BDA Biomedical Park
Owner/Party A | Beijing Economic Technology Investment Development Parent Company, with its registered address at Building 61, No.2 Jingyuan North Street, Beijing Economic-Technological Development Area, Beijing; | |
Lessor/Party B | Beijing BDA International Biological Pharmaceutical Investment Management Co., Ltd., with its registered address at Room 309, 3rd Floor, Comprehensive Building No. 2, Yard No.88, Kechuang 6 Street, Beijing Economic-Technological Development Area, Beijing; and | |
Lessee/Party C | Beijing FibroGen Medical Technology Development Co., Ltd., with its registered address at Room 503, 4th Floor, Building No.2, Yard No.88, Kechuang 6 Street, Beijing Economic-Technological Development Area, Beijing. |
Owner, Lessor and Lessee each referred as a “Party” and together as the “Parties”.
TheParties have entered into the Lease of Premises in Beijing BDA Biomedical Park (hereinafter referred to as “Contract”) in relation to the premises which are managed byParty B and intended to be rented byParty C. TheParties have agreed to supplement and amend certain terms of theContract and its Appendix 1 - General Terms of the Lease (hereinafter referred to as “General Terms”) as follows:
I. | Location and Area of the Premises |
The premises leased byParty C are located at Room 101-601, Unit 2, No.7 Middle-sized Enterprise Building, Yard No. 88, Kechuang 6 Street, Beijing Economic-Technological Development Area, Beijing (Single Enterprise Villa A2: Room 101-601, hereinafter referred to as “Premises”) and will be used as Party C’s research and development space. ThePremises shall be comprised of a single building with a total construction area of4,819.76 square meters. (This clause is a replacement of Clause 1 of theContract).
II. | Term |
The term of the lease (hereinafter referred to as “Term”) shall commence on February 1, 2013 and end on January 31, 2021, with a period of 8 years, including a rent-free period of two months, commencing on February 1, 2013 and ending on March 31, 2013.
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III. | Rent |
During theTerm, the daily rent of thePremises shall be:2.3 Yuan/square meter per day for the first and second payable year (i.e. from February 1, 2013 to January 31, 2015) including the rent-free period commencing from February 1, 2013 to March 31, 2013;2.5 Yuan/square meter per day for the third and forth payable year (i.e. from February 1, 2015 to January 31, 2017) ;3.0 Yuan/square meter per day from the fifth to the eighth payable year (i.e. from February 1, 2017 to January 31, 2021).
IV. | Payment of Rent |
The rent of thePremises shall be paid quarterly in advance. Subject to Clause 7.3 of theGeneral Terms (as amended), the first quarterly rent for thePremises (i.e. from February 1, 2013 and ending on April 30, 2013) in total shall be (in words): one million, eleven thousand, five hundred and forty eight Yuan (in numbers: ¥ 1,011,548.00). After deducting the rent free period, the actual payable rent shall be (in word) three hundred and fifty seven thousand, five hundred and three Yuan (in numbers: ¥ 357,503.00) which shall be paid within seven (7) Calendar Days after the expiry of the rent-free period. The rest of the rent for theTerm of thePremises shall be paid byParty C toParty B within seven (7) Calendar Days after the beginning of every payable quarter.
V. | Lease Deposit |
Within seven (7) Calendar Days after thisSupplementary Agreement becomes effective,Party C shall pay the security deposit (hereinafter referred to as “Deposit”), equivalent to three (3) months of rent for the entirePremises. The specific amount of theDepositis: (in words) one million, eleven thousand, five hundred and forty eight Yuan (in numbers: ¥ 1,011,548.00) and shall be adjusted during theTerm in proportion to the increase of theRent. IfParty B is required to return theDeposittoParty C under the provisions of Clause 7.3 of theGeneral Terms, theDepositshall be returned toParty C by Party B within fifteen (15) Calendar Days after the return of thePremisesbyParty C. It is expressly understood thatParty B reserves the right to deduct unpaid rent, payments sufficient to cover damages to thePremises and other charges provided under theContract andGeneral Terms from theDeposit prior to its return toParty C. (This clause is a supplement to Clause 6 of theContract and Clause 7.3 of theGeneral Terms.)
VI. | Delivery of the Premises |
1. | Within ten (10) Calendar Days after signing thisSupplementary Agreement by theParties,Party B shall deliver thePremises toParty C in compliance with the delivery |
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conditions (hereinafter referred to as “Delivery Day”). TheDelivery Day shall not be later than the commencement date of theTerm. On theDelivery Day, theParties shall complete the delivery and execute relevant documents in relation to the delivery of thePremises. |
2. | After the date of execution of thisSupplementary Agreement and before theDelivery Day,Party C shall be entitled to check on its own or authorize representatives to check thePremises and the ancillary equipments and facilities thereof, upon giving a prior notice toParty B, to ensure that the delivery conditions, specifications and standard of thePremises have met the delivery conditions (hereinafter referred to as “Delivery Conditions”) as specified in the appendix of thisContract, for once or more times.Party B shall make thePremises accessible toParty C and its representatives for the on-site inspection, acceptance check and other related procedures. |
3. | The Delivery Conditions shall refer to those items specified both in the Appendix 3 - List of Ancillary Facilities and Articles of the Premises and the Specifications of the Premises (Appendix A attached to thisSupplementary Agreement) as agreed by the Parties. |
4. | Party B represents and warrants that thePremises were constructed in full compliance with all national, city, and local codes and regulations. In particular,Party B confirms that thePremises were constructed without the use of asbestos and are asbestos-free at the time of delivery. In addition,Party B confirms that thePremises were constructed in compliance with all current national, city, and local codes and regulations that related to earthquake construction standards. (Clause 6.1-Clause 6.4 hereof are supplements to Clause 9 of theContract). |
VII. | Renovation and Improvement of the Premises |
1. | Party C shall submit a written application toParty B for its approval at least ten (10) Working Days prior to the proposed renovation and improvement, with a detailed statement (including but not limited to the renovation and improvement plan, construction drawings, construction period arrangement, and plan for installation or removal of equipment and facilities). |
2. | Party B shall not unreasonably refuse the renovation and re-construction requests or plans proposed byParty C.Party B shall notifyParty C, within ten (10) Working Days after receiving the renovation and re-construction application and related statements, of its decision on whether it consents to the renovation and re-construction request and such consent shall be deemed to be given toParty C upon failure ofParty B to notifyParty C of such decision within the aforementioned time limit.Party B shall advise Party C in writing at the time ofParty B’s approval of such renovation and re-construction request ifParty B will requireParty C to remove the improvement upon termination of thisContract. Where the proposed renovation and re-construction proposed by Party C is subject to relevant administrative permits,Party B and the |
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property management company shall be obligated to assistParty C to obtain all approvals from relevant administrative authorities. |
VIII. | Naming of the Premises |
IfParty C leases the entire building of the Premises, Party C shall have the right to name thePremises free of charge during theTerm, including installing and placing signage and logos ofParty C and affiliates ofParty C on the places as designated byParty B.Party C shall bear the cost of design, installation and maintenance of these signage and logos and removal of these signage and logos upon expiry of theTerm. (This clause is a replacement of Clause 4.3 of theGeneral Terms.)
IX. | Renewal of the Lease |
Upon expiration of theTerm, in the event thatParty C intends to continue to rent thePremises, it shall submit a written application for renewal toParty B at least forty five (45) Calendar Days prior to the expiration of theTerm. If a third party has expressed interest in leasing thePremises,Party C shall be entitled to a right of first refusal to renew theContract on a term no less than one (1) year at a rental rate no more than that agreed by the third party. In the event thatParty C has submitted a written application for renewal toParty B and no third party has expressed interest in leasing thePremises,Party C shall be entitled to renew the lease on a term no less than one (1) year at a rental rate to be agreed upon betweenParty B andParty C, but in no case will the rental rate exceed the fair market value of similar premises in this area. (This clause is a replacement of Clause 5.2 of the General Terms)
X. | Return of the Premises |
1. | Party C shall return thePremises in five (5) Calendar Days upon the date of expiration of theTerm or termination of theContract.Party C shall organize all relevant persons to withdraw from thePremises within the above period.Party C shall evacuate or remove the equipments, facilities, appliances and other properties which are owned or leased byParty C from third parties and which Party B identified as being required to be removed upon approval of the installation of such equipments, facilities, appliances and other properties.Party C need not reinstate thePremises, provided that the renovation and improvement furnished byParty C does not materially damage the functionality of thePremises. TheParties agree to extend the five-day-period to a reasonable period of time ifParty C is required to demolish the renovation and improvement to thePremises. |
2. | It is expressly understood that title of all improvements made and equipments provided byParty C shall, at all times during theTerm, remain in the name ofParty C. Notwithstanding anything to the contrary contained herein,Party C may remove all or any of the improvements and equipments at any time during theTerm, provided that such removal of the improvements and equipments byParty C will not damage the |
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structure of thePremises. Party C provides no representation or warranty relating to the condition or functionality of any improvement or equipment left in thePremises after the expiration of theTerm. (Clause 10.1-Clause10.2 are replacements of Clause 10.1 and Clause 10.4 of theGeneral Terms) |
3. | Provided thatParty C remains in possession of thePremises for less than ninety (90) Calendar Days (the ninetieth day included) after the expiration of the five (5) Calendar Days period or any period extended by the agreement of theParties specified in Clause 10.1,Party C shall be entitled to use of thePremises under the same terms and conditions of theContract, yet the daily rent during the foregoing period extended by the agreement of theParties and the occupation period within ninety Calendar Days shall be twice the last daily rent being carried out during theTerm. (This Clause is a supplement to Clause 10 of theGeneral Terms) |
4. | In the event thatParty C fails to return thePremises beyond ninety (90) Calendar Days after the expiration of the five (5) Calendar Days period or any period extended by the agreement of theParties specified in this Clause 10.1,Party B is entitled to: (This Clause is a replacement of Clause 10.5 and Clause 10.6 of theGeneral Terms) |
(1) | Dispose properties, equipments and facilities (including the properties, equipments and facilities left by the affiliated third party) which were left in thePremises without the consent ofParty B at its discretion and which Party B identified as being required to be removed upon approval of the installation of such equipments, facilities, appliances and other properties.Party C shall not claim any right or expenses againstParty B due to the disposal, and, in case any claim, penalty, expenditure or losses is caused toParty B due to the disposal,Party C shall compensateParty B for those improvements thatParty B required removal at the time of approval of the installation of those improvements. Meanwhile,Party B is entitled to requireParty C to assume the liability for breach of the Contract in accordance with the provisions of this Contract ; and |
(2) | Cut off the supply of water, electricity, gas, heating and other energy at its own discretion, and is entitled to change the keys to thePremises and prohibitParty C and its affiliated third party from entering into thePremises.Party B is also entitled to remove or eliminate the renovations to thePremises and the properties, equipments and facilities left byParty C and its affiliated third party.Party Cshall not raise any claim againstParty B at any time in this regard for any loss nor requireParty B to be liable for any compensation or indemnification. |
XI. | The Repair and Maintenance of the Premises and its Ancillary Facilities |
1. | TheParties further agree and acknowledge that the maintenance of the Premises and the ancillary equipments (hereinafter referred to as “Equipments”) and facilities (hereinafter referred to as “Facilities”) listed in the Appendix [3] of this Supplementary Agreementshall be repaired and maintained by Party B free of charge |
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unless such damage or failure is caused byParty C. In the event of damage to, or failure of, thePremises,Equipments, orFacilities not caused byParty C, Party C shall notifyParty B in a reasonable time period afterParty C has noticed of such damage or failure.Party B shall promptly repair such damage or failure of the Premises, Equipments andFacilities.Party C may furnish such repair and maintenance at the expenses ofParty B ifParty B does not furnish the repair within three Working Days after receiving notice fromParty C. (This Clause is a replacement of Clause 13.2 of the General Terms) |
2. | During theTerm,Party Cshall be entitled to continuously and uninterruptedly use thePremises 24 hours a day.Party B and the property management company shall not interrupt or disturb the use of thePremises byParty C without any sound reason or any advance notice,provided that Party C operates its business and manufacture in compliance with laws and regulations and the Tenant’s Manual of the Park. (This Clause is a supplement to Clause 11 of theGeneral Terms) |
3. | IfParty B or the property management company deems it necessary to enter into thePremises to inspect, maintain or renovate the pipes of water, electric wires, steam pipes, telecommunication cables, and other public facilities, passing through thePremises,Party B shall notifyParty Cof such on the same dayPartyB is notified, and the personnel appointed byParty B or the property management company shall not interrupt or disturb the use of thePremises byParty C, who shall provide necessary assistance. In case of emergency (including but not limited to flood, fire and robbery)Party B may enter into thePremises to handle the accidents and temporarily stop the operation of any facility for emergency maintenance, without notifying Party C in advance. (This Clause is a replacement of Clause 13.4 of theGeneral Terms) |
XII. | Use of the Premises |
1. | During theTerm, withoutParty B’s prior written consent,Party C shall neither sublease thePremises herein, in whole or in part, to others, nor make thePremises actually available for the actual use by any third party, through any paid or unpaid means, such as transfer, lending, or subcontract. The restriction of sublease and transfer herein is not applicable to any affiliate ofParty C. “Affiliate of Party C” shall refer to the parent company ofParty C, companies controlled byParty C’s parent company other thanParty C, and any subsidiary, branch and representative office ofParty C.Party Cwill provide evidences toParty B indicating the affiliated relationship between Party C and such third parties. (This Clause is a replacement of Clause 14.1 of theGeneral Terms) |
2. | TheParties agree to delete “and the Consent ofParty B” from the first sentence of Clause 11.5 of theGeneral Terms: “Without the qualification certificate of the relevant administration authorities of the State and the consent ofParty B”. |
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XIII. | Termination of the Contract |
1. | Under any of the following circumstances,Party C shall be entitled to unilaterally terminate the Contract and immediately cease to pay theRent (exclusive of the delinquent Rent): (This Clause is a replacement of Clause 15.3 of theGeneral Terms) |
(1)Party B delays to deliver thePremises or fails to deliver thePremises in compliance withDelivery Conditions, and such delay or failure is more than thirty (30) Calendar Days (the thirtieth day included);
(2) During theTerm, if thePremises is damaged, is unable to meetParty C’s intended purposes, or the normal use byParty C is seriously affected, without cause attributable toParty C, andParty Bfails to cure such condition within 30 calendar days uponParty C’s written notice, thenParty C shall be entitled to immediately and unilaterally terminate theContract. Or if, during theTerm, the circumstances that thePremises is damaged, unable to meetParty C’s intended purposes of use, or its normal use byParty C is seriously affected, cause attributable toParty C, takes place for three or more times during any consecutive 12 calendar months,Party C shall be entitled to immediately and unilaterally terminate theContract;
(3) During theTerm, if thePremises seriously endanger the safety or health ofParty C due to reasons not caused byParty C, andParty B fails to cure within 30 Calendar Days uponParty C’s written notice, thenParty C may immediately and unilaterally terminate theContract. Or if, during theTerm, the circumstance that thePremises seriously endanger the safety or health ofParty C due to reasons not caused byParty C, takes place for three or more times during any consecutive 12 calendar months,Party C may also immediately and unilaterally Terminate theContract; and
(4) ThePremises is condemned or taken by the government during theTerm.
2. | Under any of the following circumstances,Party B shall be entitled to unilaterally terminate theContract (This Clause is a replacement of Clause 15.4 of theGeneral Terms.): |
(1)Party C delays to pay theRent or other fees and expenses assumed byParty C subject to the Contract and such delay is longer than thirty (30) Calendar Days afterParty B’s notice (the thirtieth day included);
(2)Party C subleases, transfers or lends thePremises to any party other than those listed in Clause 10 of thisSupplementary Agreement withoutParty B’s consent, and fails to cure within 30 days afterParty B’s notice;
(3)Party C changes the purpose of thePremises withoutParty B’s consent and fails to cure within 30 days afterParty B’s notice;
(4)Party C dismantles, changes or damages the main structure of thePremises, withoutParty B’s consent and fails to cure within 30 days afterParty B’s notice;
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(5)Party C seriously violates Clause 11.2 of Appendix 1 of the Contract and fails to cure within 30 days afterParty B’s notice;
(6)Party C seriously violates the regulations of the Park as set out in the Appendix 7 to theContract, and fails to cure within 30 days afterParty B’s notice.
3. | In the event of termination ofParty C’s clinical trial program,Party C shall be entitled to terminate theContract by providing a notice 6 months in advance toParty B during which timeParty B is allowed to market the space immediately. (This Clause is a supplement to Clause 15.3 of the updatedGeneral Termsas replaced by Clause 13.1 hereof) |
XIV. | Fire Code Permit |
Party C shall have the right to petition the local Fire Department to upgrade the Premises to a Fire Code Class C Permit. Party B shall assistParty C in obtaining the Fire Code Class C Permit as required. In the event that a Fire Code Class C Permit is not obtained for thePremises within 60 days ofParty C’s request andParty C has not made any renovation or improvement to thePremises that would render the building not qualified for a Fire Code Class C Permit,Party C shall have the right to terminate theContract immediately andParty B will have all prepaid rent and Deposit paid to date refunded toParty C within 30 days of the date of termination. (This clause is a supplement to Clause 20 ofGeneral Terms and shall constitute a new Clause 20.9 of theGeneral Terms)
XV. | Insurance |
1. | Prior to the execution date of theContractand thisSupplemental Agreement,Party B will purchase sufficient insurance policies against any loss incurred in connection with thePremises and facilities and equipments furnished by Party B and maintain such insurance policy valid during theTerm. The photocopies of the insurance policies will be made available toParty C before the execution date of theContract and thisSupplemental Agreementand annually thereafter. |
2. | Notwithstanding anything to the contrary provided in theContract or General Terms, if thePremises are damaged andParty B receives any insurance proceed from an insurer,Party B shall repair thePremises as soon as practical and ensure that the repairedPremises are able to meet theDelivery Conditions prescribed in Clause 4.3 of thisSupplementary Agreement, unless such damage to thePremises is caused byParty C. If the damage to thePremises is not repairable,Party B shall, on the same terms of theContract, lease an alternative premise, which is acceptable toParty C, toParty C within 30 days after damage to thePremise occurs. |
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XVI. | Liabilities for Breach |
TheParties agree to delete “If failure of payment continues for more than thirty (30) (including) calendar days,Party B is entitled to terminate thisContract” from Clause 16.2 of theGeneral Terms.
XVII. | Governing Law and Dispute Resolution |
The execution, effect, construction, and performance of and any dispute arising out of and related to thisContract and thisSupplementary Agreement shall be governed by PRC law. Any issues, disputes, and disagreement between theParties arising out of the execution and performance of thisContract and thisSupplementary Agreement shall be firstly resolved through consultation. If no agreement can be reached upon consultation within thirty (30) days, such dispute shall be brought to China International Economic and Trade Arbitration Commission (“CIETAC”) for final arbitration by one (1) arbitrator in Beijing according to the then-effect arbitration rules ofCIETAC. TheParties shall jointly appoint or delegate the Chairman ofCIETACto appoint the arbitrator from the Panel of Arbitrators provided byCIETAC. Where theParties fail to agree on the appointment of the arbitrator within 20 days after the date of the Respondent’s receipt of the Notice of Arbitration the arbitrator shall be appointed by the Chairman ofCIETAC. Any arbitration award shall be final, binding to theParties, and enforceable according to the provisions of the arbitration rules. (This Clause is a replacement of Clause 19 of theGeneral Terms.)
XVIII. | Deleted Terms |
Clause 11.6 regarding “Party C shall abide by the regulations regarding the management of the environmental noise for residential areas”, Clause 16.3 regarding “Party B may early withdraw thePremises if notifiesParty C thirty (30) days in advance”, Clause 16.4 regarding “Party C may cease to lease thePremises if notifiesParty B thirty (30) days in advance” in theGeneral Terms shall be deleted.
XIX. | Effectiveness of this Supplementary Agreement |
1. | Unless otherwise defined herein, all terms in thisSupplementary Agreement (including preface) shall have the meaning ascribed to them in theContract and the Appendix 1-General Terms. If there is any discrepancy between thisSupplementary Agreement and the documents constituting the lease specified in Clause 7 of theContract, thisSupplementary Agreement shall prevail. For any matters not provided in this Supplemental Agreement, the provisions of theContract and theGeneral Terms will prevail. |
2. | ThisSupplementary Agreement shall take effect upon that the signature of the legal representatives or the authorized representatives of theParties and company seals are affixed to thisSupplementary Agreement. |
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SIGNATURE:
Party A: (seal) Beijing Economic Technology Investment Development Parent Company
Party B: (Seal)
Beijing BDA International Biological Pharmaceutical Investment Management Co., Ltd. | Party C: (Seal)
Beijing FibroGen Medical Technology Development Co., Ltd. | |||||||||||
Legal Representative: | /s/ Yin Xijie | (Signature) | Legal Representative: | /s/ Thomas B. Neff | (Signature) | |||||||
Legal Representative: Yin Xijie | Legal Representative: | Thomas B. Neff | (Print) | |||||||||
Date: January 30, 2013 | Date: January 30, 2013 |
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Appendix A - Specifications of the Premises
1 | The Premises to be rented is a five storey building above ground which will be used for office and laboratory purpose. |
2 | This building is comprised by frame structure. Structure seismic grade: frame: second grade, shear wall: first grade, second basement wall column: third grade. |
3 | Floor slab is made of cast-in-place reinforced concrete. |
4 | Due to the difference of China’s architectural design standards, vibration standard is not taken into the structure design of this building. |
5 | The distance between the floors of 1F to 4F is 4.5m. The distance between the floors of 5F is 5.5m. |
6 | The designed floor slab load of this building is: working floor surface: 4.0KN/m2, bathroom floor surface 2.5KN/m2, air conditioning plant room floor surface 7.0KN/m2. |
7 | The load of flat roof: accessible flat roof 2.0KN/m2. |
8 | The land type of this building is industrial use pursuant to the State Owned Land Use Right Certificate and the Construction Land Planning Permit. The property type column in the Property Ownership Certificate is blank and one of the planned utility is defined as enterprise use. |
9 | The specifications and standards adopted in the design of this building are all current in force national GB series construction industry standards. |
10 | The out wall of this building is local glass curtain wall (6+12+6 insulating glass broken bridge aluminum alloy windows), local aerated concrete masonry and dry handing plate of ceramic curtain wall. |
11 | The entrance door of this building is insulation glass vertical hinged door (6+12+6 insulating glass broken bridge aluminum alloy door). |
12 | All of the outside and roof balcony door are insulation glass doors and windows (6+12+6 insulating glass broken bridge aluminum alloy doors and windows). |
13 | The parapet wall on the roof is aerated concrete masonry with construction columns. |
14 | The elevator hoistways, elevator lifts and staircase partition wall are all made of aerated concrete masonry with fire resisting grade. |
15 | Staircases are located at the two ends of the building and are made of cast-in-place reinforced concrete stairs. |
16 | The fresh air units are installed in an equipment room adjacent to the terrace of 5F. The air cooling units are installed to a concrete equipment base on the roof of the elevator machine room and the equipments are independently controlled by each of the independent building. |
17 | The flat roof uses double SBS polymer modified asphalt waterproofing materials with ceramist concrete sloping layer and ground tile. |
18 | The inner building elevators are furnished with stainless steel door case and door. |
19 | The automatic fire hydrant system and sprinkler are satisfactory to the fire hydrant grade requirements. |
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20 | The fire alarm system and equipment are connected by the vertical shaft for light current at one end of the building with the central control room of the park. |
21 | The inlet wire of the park’s power supply system is 10 KV which will supply electricity (400v) to the building through the transformer of the transforming satiation, distribution box and respective distribution system of the park. |
22 | Each floor is equipped with emergency illumination and evacuation indicator. |
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