Exhibit 10.65
SECOND AMENDMENT TO OFFICE LEASE
This SECOND AMENDMENT TO OFFICE LEASE (this “Amendment”), dated as of June 27, 2023 (the “Effective Date”), is entered into by and between KBSIII TOWERS AT EMERYVILLE, LLC, a Delaware limited liability company (“Landlord”), and XOMA (US) LLC, a Delaware limited liability company (“Tenant”).
R E C I T A L S:
B. | Capitalized terms not defined herein have the meanings given to such terms in the Lease. |
C. | The Lease Term is scheduled to expire by its terms on July 31, 2023. |
A G R E E M E N T:
NOW, THEREFORE, in consideration of the foregoing Recitals, the mutual covenants and agreements contained in this Amendment and other good and valuable consideration, the receipt and sufficiency of such are hereby acknowledged, Landlord and Tenant hereby agree as follows:
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rights of Tenant to possession and occupancy of the Current Premises and Tenant’s obligations with respect to the Current Premises will terminate except as to Tenant’s surviving obligations under the Amended Lease, and all of Tenant’s rights and obligations under the Amended Lease shall relate solely to the New Premises; provided, however, if Tenant fails to surrender the Current Premises on or before the Surrender Date, Tenant shall be deemed in holdover of the Current Premises subject to the holdover provisions in the Lease, and such holding over shall not operate to release Tenant from its obligations with respect to the New Premises.
$7,533.00 per month. No such extensions shall operate to release Tenant from liability for any amounts owed or defaults which exist under the Lease prior to the New Premises Commencement Date.
Lease Months | Monthly Base Rent |
1* - 12 | $7,533.00** |
13 - 24 | $7,758.99 |
25 - 36 | $7,991.76 |
37 - 48 | $8,231.51 |
49 - 60 | $8,478.46 |
61 - 65 | $8,732.81 |
*Includes the first full month and any partial month at the beginning of the Second Extended Term.
**Notwithstanding the foregoing, provided Tenant is not in default under the Amended Lease, Landlord hereby agrees to abate Tenant’s obligation to pay Base Rent during the first (1st), thirteenth (13th), twenty- fifth (25th), thirty-seventh (37th), and forty-ninth (49th) full calendar months of the Second Extended Term (such total amount of abated Base Rent being hereinafter referred to as the “Abated Amount”). During such abatement periods, Tenant will still be responsible for the payment of all other monetary obligations under the Amended Lease, including, without limitation, parking charges and Direct Expenses. Tenant acknowledges that any default by Tenant under the Amended Lease will cause Landlord to incur costs not contemplated hereunder, the exact amount of such costs being extremely difficult and impracticable to ascertain. Therefore, should Tenant at any time during the Second Extended Term be in default under the Amended Lease beyond any applicable notice and cure period, then, in addition to all of Landlord’s other rights and remedies, the total unamortized sum of such Abated Amount (amortized on a straight line basis over the Second Extended Term) so conditionally excused shall become immediately due and payable by Tenant to Landlord. Tenant acknowledges and agrees that nothing in this subsection is intended to limit any other remedies available to Landlord at law or in equity under applicable law (including, without limitation, the remedies under Civil Code Section 1951.2 and/or 1951.4 and any successor statutes or similar laws), in the event Tenant defaults under the Amended Lease beyond any applicable notice and cure period. Upon reasonable notice to Tenant at any time prior to application of the entire Abated Amount, Landlord shall have the right to purchase from Tenant any and all then remaining Abated Amount as it applies to one or more of the remaining abatement months by paying to Tenant an amount equal to the unused balance of the Abated Amount that Landlord elects to purchase back from Tenant (the “Abated
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Amount Purchase Price”). Upon Landlord’s payment to Tenant of the Abated Amount Purchase Price with respect to the applicable remaining abatement months, Tenant shall thereupon be required to pay Base Rent during such months in an amount equal to the Abated Amount that Tenant would have been entitled to receive but for Landlord’s payment to Tenant of the Abated Amount Purchase Price.
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Tenant shall have no right to reduce the Security Deposit as described herein. If Tenant is entitled to a reduction in the Security Deposit, Tenant shall provide Landlord with written notice requesting that the Security Deposit be reduced as provided above (the “Security Reduction Notice”). If Tenant provides Landlord with a Security Reduction Notice, and Tenant is entitled to reduce the Security Deposit as provided herein, Landlord shall refund the applicable portion of the Security Deposit to Tenant within forty-five (45) days after the later to occur of (a) Landlord’s receipt of the Security Reduction Notice, or
(b) the New Premises Commencement Date. In no event shall the remaining Security Deposit ever be less than $22,599.00.
310. Subsequent changes to Tenant’s signs and/or any additional signs, to the extent permitted by
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Landlord, shall be made or installed by Landlord at Tenant’s sole cost and expense. All aspects of any such signs shall be subject to the prior written consent of Landlord.
14. | Representations and Warranties. Tenant hereby represents, warrants, and agrees that: |
(a) there exists no breach, default, or event of default by Landlord under the Lease, or any event or condition which, with notice or passage of time or both, would constitute a breach, default, or event of default by Landlord under the Lease; (b) the Lease continues to be a legal, valid, and binding agreement and obligation of Tenant; and (c) Tenant has no current offset or defense to its performance or obligations under the Lease. Tenant hereby waives and releases all demands, charges, claims, accounts, or causes of action of any nature whatsoever against Landlord or Landlord's members, managers, officers, employees or agents, including without limitation, both known and unknown demands, charges, claims, accounts, and causes of action that have previously arisen out of or in connection with the Lease.
[NO FURTHER TEXT ON THIS PAGE; SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the date set forth
above.
Tenant:
XOMA (US) LLC,
a Delaware limited liability company
By: Name: Tom Burns
Title: CFO
Landlord:
KBSIII TOWERS AT EMERYVILLE, LLC, a Delaware limited liability company |
By:KBS Capital Advisors, LLC, a Delaware limited liability company Its: Authorized Agent |
By: |
Name: Brent Carroll |
Title:Senior Vice President Date signed: 6/27/23 |
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EXHIBIT A
NEW PREMISES
EXHIBIT A
EXHIBIT B
WORK LETTER
3. | NEW PREMISES COMMENCEMENT DATE AND SUBSTANTIAL COMPLETION. |
EXHIBIT B
Tenant agrees that if Landlord is unable to deliver possession of the New Premises to Tenant on or prior to any particular date, the Amended Lease shall not be void or voidable, nor shall Landlord be liable to Tenant for any loss or damage resulting therefrom.
29.17 of the Original Lease.
EXHIBIT B
SCHEDULE 1
SCOPE OF WORK
SCHEDULE 1