EXHBIT 10.1
FIFTH AMENDMENT TO LEASE
THIS FIFTH AMENDMENT TO LEASE ("Fifth Amendment") is made this 19th day of
March, 2008 (the "Effective Date"), between DAVID D. BOHANNON ORGANIZATION, a
California corporation, herein referred to as "Landlord", and GERON CORPORATION,
a Delaware corporation, herein referred to as "Tenant".
WITNESSETH:
WHEREAS, Landlord and Tenant entered into a Lease entitled "Business Park
Lease" dated January 20, 1993, for certain demised premises located at 194-200
Constitution Drive, Menlo Park, California, as more particularly described in
said Lease, and
WHEREAS, the Lease has been amended by a First Amendment to Lease dated
July 26, 1993, a Second Amendment to Lease dated February 22, 1994, a Third
Amendment to Lease dated March 25, 1996, and a Fourth Amendment to Lease dated
March 23, 2004 (the "Fourth Amendment") (the Lease, as previously amended by the
foregoing amendments, is herein referred to as the "Lease"), and
WHEREAS, the Lease is scheduled to expire on July 31, 2008, and Landlord
and Tenant desire to make certain amendments to the Lease and extend the demised
term of the Lease, all as more particularly set out hereinbelow.
NOW, THEREFORE, in consideration of the covenants and conditions contained
herein, Landlord and Tenant agree to amend the Lease as follows:
1. The demised term of the Lease is hereby extended four (4) years
commencing August 1, 2008, and the demised term shall expire on July 31, 2012 at
11:59 p.m.
2. Effective as of the Effective Date, Section 1.3. of the Lease (Tenant's
option to extend the demised term of the Lease), which was inserted into the
Lease in paragraph 2 of the Fourth Amendment, and Section 2.8. of the Lease,
which was inserted into the Lease in paragraph 4 of the Fourth Amendment, shall
be deemed void and of no further force or effect, as the parties have agreed to
extend the demised term of the Lease pursuant to the provisions of this Fifth
Amendment.
3. Base rent payable pursuant to Sections 2.1. and 2.2. of the Lease shall
be payable during the extended term as follows: for the period from August 1,
2008, to and including July 31, 2012, base rent shall be the amount of Four
Hundred Seventeen Thousand Two Hundred Eighty Two and 48/100 Dollars
($417,282.48) per annum, payable in twelve (12) equal monthly installments of
Thirty Four Thousand Seven Hundred Seventy Three and 54/100 Dollars
($34,773.54).
4. In addition to the base rent set forth in Section 2.1 of the Lease, as
revised hereinabove, Tenant shall continue to pay all items of additional rent
pursuant to the terms of the Lease.
5. Tenant hereby receives a new option to further extend the demised term
of the Lease; therefore, the following new Section 1.3. is inserted into the
Lease as of the Effective Date:
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"Section 1.3. Provided that Tenant is not, at the time Landlord
receives Tenant's written notice to exercise the following option, and has
not been, in default under any of the terms and conditions of the Lease,
which default has not been cured within the applicable cure periods set
forth in Article 13 of the Lease, Tenant shall have the option to extend
the demised term of the Lease for one (1) additional period of four (4)
years upon the following terms and conditions:
A. Tenant shall exercise the option by written notice to Landlord
given no later than one hundred eighty (180) days, nor earlier than two
hundred seventy (270) days, prior to the expiration of the demised term;
B. The option term will commence on August 1, 2012, and shall extend
for a period of four (4) years, up to and including July 31, 2016;
C. There shall be no further options to extend, there shall be no
Landlord inducement, and Landlord shall not be required to perform any
improvements in the demised premises or the building prior to or during
the option term;
D. The option to extend may only be exercised by Geron Corporation,
provided that Geron Corporation may exercise the option on behalf of its
sublessee if Geron Corporation has subleased any or all of the demised
premises and Landlord has consented to such sublease. The option cannot be
transferred nor can it be exercised by Geron Corporation if Geron
Corporation has assigned its rights under this Lease to a third party.
E. The then current payments for additional rent shall continue to
be adjusted during the option term pursuant to the provisions of the
Lease;
F. The base rent for each year of the option term shall (subject to
the provisions hereof) equal the Fair Market Rental Value (hereinafter
defined). "Fair Market Rental Value" shall mean the market rent, including
annual increases (if any), being charged on the first day of the option
term for similar space in buildings of comparable quality as the building
in which the demised premises is situated which are located in similar
areas of the Cities of Menlo Park and Palo Alto. In determining the Fair
Market Rental Value comparable transactions shall be considered, including
without limitation, length of lease term, landlord and tenant inducements
and rent increases, if and to the extent then a part of market conditions.
The rent on comparable leases shall be adjusted to reflect the value or
cost of such inducements since neither Landlord nor Tenant shall have any
obligation to pay or perform any such inducements (except for rent
increases if applicable). For purposes of the determination of Fair Market
Rental Value it shall be assumed the Landlord and Tenant are each ready,
willing and able to enter into such a lease but are under no compulsion to
do so.
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Within twenty (20) calendar days after Tenant's written notice of
exercise, Tenant shall advise Landlord of its estimate of the Fair Market
Rental Value for the demised premises. Landlord, within twenty (20)
calendar days thereafter, shall advise Tenant in writing of its estimate
of the Fair Market Rental Value. During the next twenty (20) calendar days
the parties shall meet and confer for the purpose of agreeing upon Fair
Market Rental Value. If the parties are then unable to agree, then the
Fair Market Rental Value shall be determined by an appraisal as herein set
forth and the Fair Market Rental Value as so determined shall be binding
upon Landlord and Tenant. Within ninety (90) calendar days after the
Tenant's notice of exercise, Landlord and Tenant shall each appoint an
appraiser and notify the other party in writing of its choice. Thereupon,
the two appraisers so elected shall elect a third appraiser within thirty
(30) calendar days of their appointment, unless during such period the two
appraisers shall have agreed upon a Fair Market Rental Value, or have
reconciled their appraisals to within ten percent (10%) of each other in
which event the average of the two appraisals will be the Fair Market
Rental Value, in which case their determination shall be final and
binding. If the two appraisers shall be unable to agree upon a third
appraiser, then the Landlord and Tenant shall immediately request the
Presiding Judge of the San Mateo County Superior Court to make such
selection. The three appraisers shall meet and confer for a period not to
exceed sixty (60) calendar days and the determination of Fair Market
Rental Value by a majority of the three shall be final and binding. In the
event that a majority cannot agree, then the third (neutral) appraiser
shall direct each of the party appraisers to review their appraisals for a
period of seven (7) calendar days and return to a meeting of the three
appraisers within five (5) calendar days thereafter with each respective
party appraiser having indicated their final appraisal of Fair Market
Rental Value in a sealed envelope and signed by that appraiser. The third
appraiser will do the same. The envelopes will be opened in the presence
of the three appraisers and the Fair Market Rental Value of the party
appraiser which is closest to the Fair Market Rental Value of the third
appraiser will be the final Fair Market Rental Value and binding on the
parties. Each party shall bear the cost of the appraiser selected by it
and the cost of the third appraiser shall be shared equally (including all
costs associated with an appointment by the Superior Court of San Mateo,
if applicable, regardless of which party filed the application). To be
appointed as an appraiser the person so appointed shall hold the
professional designation of MAI awarded by the American Institute of Real
Estate Appraisers or such designation as may then be the preeminent
professional designation, hold any licenses which may then be required by
law, and have at least five (5) years current experience appraising
commercial/light industrial properties in San Mateo County. The third
(neutral) appraiser shall not have had any personal, social or business
relationship with either party or any of its personnel during the
preceding five (5) years.
Notwithstanding the foregoing to the contrary, in no event shall the
base rent for each year of the option term be reduced below the base rent
payable by Tenant for the last year (or partial year) of the demised term.
When the base rent for the option term is determined pursuant to the
above provisions, the parties shall promptly execute an amendment to the
Lease stating the base rent to be paid during the option term. In the
event Tenant has retained the services of a real estate broker to
represent Tenant during the negotiations of the option term, it is
expressly understood that Landlord shall have no obligation for the
payment of all or any part of a real estate commission or other brokerage
fee to Tenant's real estate broker in connection therewith. Tenant shall
be solely responsible for the payments of fees for services rendered to
Tenant by such broker in connection with the option term.
G. All other terms and conditions of the option term shall be as set
forth in the Lease, and upon exercise by Tenant of the option as set forth
herein all references to the demised term set forth in the Lease shall
include the extended term."
6. It is understood and agreed that all other terms and conditions of the
Lease shall be and remain the same. Capitalized terms herein shall have the same
meaning as in the Lease. If there is any conflict between the provisions of this
Fifth Amendment and the provisions of the Lease, the provisions contained in
this Fifth Amendment shall control.
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7. This Fifth Amendment shall be construed under the laws of the State of
California. If any provision of this Fifth Amendment, or portion thereof, or the
application thereof to any person or circumstances shall, to any extent, be
invalid or unenforceable, the remainder of this Fifth Amendment shall not be
affected thereby and each provision of this Fifth Amendment shall be valid and
enforceable to the fullest extent permitted by law.
IN WITNESS WHEREOF, the parties have executed this Fifth Amendment as of
the date first hereinabove written.
TENANT: LANDLORD:
GERON CORPORATION, DAVID D. BOHANNON ORGANIZATION,
a Delaware corporation a California corporation
By /s/ David L. Greenwood By /s/ Scott Bohannon
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David L. Greenwood Senior Vice President
Executive Vice President and CFO
By /s/ Ernest Lotti Jr.
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Secretary
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