Exhibit 10.1
FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE (this “First Amendment”) is made as of June 20_, 2023 (the “Effective Date”), by and between ARE-WINTER STREET PROPERTY, LLC, a Delaware limited liability company (“Landlord”), and INTELLIA THERAPEUTICS, INC., a Delaware corporation (“Tenant”).
RECITALS
NOW, THEREFORE, in consideration of the foregoing Recitals, which are incorporated herein by this reference, the mutual promises and conditions contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Landlord and Tenant hereby agree as follows:
“Target Commencement Date: May 4, 2023”
“Base Term: Beginning on the Commencement Date and ending 144 months from the first day of the first full month following the Rent Commencement Date. For clarity, if the Rent Commencement Date occurs on the first day of a month, the expiration of the Base Term shall be measured from that date. If the Rent Commencement Date occurs on a day other than the first day of a month, the expiration of the Base Term shall be measured from the first day of the following month.”
“2. Delivery; Acceptance of Premises; Commencement Date. Landlord shall use reasonable efforts to deliver the Premises to Tenant on or before the Target Commencement Date, which shall be free and clear of all tenants and occupants and their possessions, in Tenant Improvement Work Readiness Condition (“Delivery” or “Deliver”) for Tenant’s construction of the Tenant Improvements under the Work Letter. If Landlord fails to timely Deliver the Premises, Landlord shall not be liable to Tenant for any loss or damage resulting therefrom, and this Lease shall not be void or voidable except as provided herein. Notwithstanding anything to the contrary contained herein, if Landlord fails to Deliver the Premises to Tenant within 30 days after the Target Commencement Date (as such date may be extended by Force Majeure delays and Tenant Delays, the “Abatement Date”), Base Rent payable with respect to the Premises shall be abated 1 day for each day after the Abatement Date that Landlord fails to Deliver the Premises to Tenant (such abatement to commence on the Rent Commencement Date). If Landlord does not
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Deliver the Premises within 180 days of the Target Commencement Date for any reason other than Force Majeure, this Lease may be terminated by Tenant by written notice to Landlord, and if so terminated: (a) the Security Deposit, or any balance thereof (i.e., after deducting therefrom all amounts to which Landlord is entitled under the provisions of this Lease), shall be returned to Tenant, and (b) neither Landlord nor Tenant shall have any further rights, duties or obligations under this Lease, except with respect to provisions which expressly survive termination of this Lease. As used herein, the terms “Landlord’s Work,” “Tenant Improvements,” and “Tenant Improvement Work Readiness Condition” shall have the meanings set forth for such terms in the Work Letter. If Tenant does not elect to void this Lease within 5 business days of the lapse of such 180 day period, such right to void this Lease shall be waived and this Lease shall remain in full force and effect.
The “Commencement Date” shall be the date Landlord Delivers the Premises to Tenant in Tenant Improvement Work Readiness Condition. The “Rent Commencement Date” shall be September 15, 2024, provided that such date shall be extended on a day- for-day basis for Landlord Delays (as such term is defined in the Work Letter), Force Majeure delays, and Construction Limitations Delay (as such term is defined in the Work Letter). Upon request of either party, Landlord and Tenant shall execute and deliver a written acknowledgment of the Commencement Date, the Rent Commencement Date and the expiration date of the Term when such are established in the form of the “Acknowledgement of Commencement Date” attached to this Lease as Exhibit D; provided, however, either party’s failure to execute and deliver such acknowledgment shall not affect the other party’s rights hereunder. The “Term” of this Lease shall be the Base Term, as defined on the first page of this Lease and any Extension Terms which Tenant may elect pursuant to Section 41 of this Lease.
Landlord and Tenant acknowledge and agree that (w) as of the date of this Lease there exist significant global supply chain delays and shortages of construction materials, supplies and equipment (collectively, “Supply Chain Delays”), (x) the availability of fixtures, equipment and/or materials required for the performance and/or Substantial Completion of Landlord’s Work (collectively, “Required Materials”), may be subject to longer lead times than normally anticipated due to such Supply Chain Delays, (y) the unavailability or delayed delivery of Required Materials may result in disruption to progress of the construction of Landlord’s Work in the ordinary course, and (z) the Target Commencement Date shall be delayed for a period equal to the delay in the Substantial Completion of Landlord’s Work resulting directly or indirectly from the unavailability or delayed delivery of Required Materials.
Except as set forth in the Work Letter (including Landlord’s obligation thereunder to perform Landlord’s Work) or as otherwise expressly set forth in this Lease: (A) Tenant shall accept the Premises in their condition as of the Commencement Date; (B) Landlord shall have no obligation for any defects in the Premises; and (C) Tenant’s taking possession of the Premises shall be conclusive evidence that Tenant accepts the Premises and that the Premises were in good condition at the time possession was taken. Any occupancy of the Premises by Tenant before the Commencement Date shall be subject to all of the terms and conditions of this Lease, excluding, so long as Tenant is not operating its business in any portion of the Premises, the obligation to pay Base Rent and Operating Expenses.
For the period of 365 consecutive days after the Commencement Date, Landlord shall, at its sole cost and expense (which shall not constitute an Operating Expense), be responsible for any repairs that are required to be made to the Building Systems (as defined in Section 13), unless Tenant or any Tenant Party was responsible for the cause of such repair, in which case Tenant shall pay the cost.
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Tenant agrees and acknowledges that, except as expressly set forth in this Lease, neither Landlord nor any agent of Landlord has made any representation or warranty with respect to the condition of all or any portion of the Premises or the Project, and/or the suitability of the Premises or the Project for the conduct of Tenant’s business, and Tenant waives any implied warranty that the Premises or the Project are suitable for the Permitted Use. This Lease constitutes the complete agreement of Landlord and Tenant with respect to the subject matter hereof and supersedes any and all prior representations, inducements, promises, agreements, understandings and negotiations which are not contained herein. Landlord in executing this Lease does so in reliance upon Tenant’s representations, warranties, acknowledgments and agreements contained herein.”
Exhibit A attached to this First Amendment.
“Security Deposit: $7,001,814.00”
“If, as of the expiration of the 36 months after the Rent Commencement Date (x) Tenant is not then in Default under this Lease, and (y) Tenant has not been in Default under this Lease during the 6 month period immediately preceding Tenant’s request for reduction of the Security Deposit (collectively, the “Reduction Requirements” and each a “Reduction Requirement”), then the Security Deposit shall be reduced to an amount equal to $4,000,000.00 (the “Reduced Security Deposit”). If Tenant delivers a written request to Landlord for such reduction of the Security Deposit then, so long as the Reduction Requirements have been and continue to be satisfied, Landlord shall cooperate with Tenant, at no cost, expense or liability to Landlord, to reduce the Letter of Credit then held by Landlord to the amount of the Reduced Security Deposit. If the Security Deposit is reduced as provided in this paragraph, then from and after the date of such
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reduction, the “Security Deposit” shall be deemed to be the Reduced Security Deposit, for all purposes of this Lease.”
$7,001,814.00. If Tenant delivers a replacement letter of credit pursuant to the immediately preceding sentence, Landlord shall return the original Letter of Credit to Tenant within a reasonable period thereafter.
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signatures for purposes of this First Amendment and all matters related thereto, with such electronic signatures having the same legal effect as original signatures.
[Signatures are on the next page]
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IN WITNESS WHEREOF, the parties hereto have executed this First Amendment as of the day and year first above written.
TENANT:
INTELLIA THERAPEUTICS, INC.,
a Delaware corporation
By: Name:/s/ Glenn Goddard
Its: CFO
X□ I hereby certify that the signature, name,
and title above are my signature, name and title
LANDLORD:
ARE-WINTER STREET PROPERTY, LLC,
a Delaware limited liability company
By: ARE-Winter Street Holdings, LLC,
a Delaware limited liability company, managing member
By: ARE-MA Region No. 85 JV, LLC,
a Delaware limited liability company, managing member
By: ARE-Special Services, LLC,
a Delaware limited liability company, managing member
By: Alexandria Real Estate Equities, L.P., a Delaware limited partnership, managing member
By: ARE-QRS Corp.,
a Maryland corporation, general partner
By: Name: Scott Sherwood
Its: VP - Real Estate Legal Affairs
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EXHIBIT A
WORK LETTER
THIS WORK LETTER (this “Work Letter”) is incorporated into that certain Lease Agreement dated as of February 22, 2022, as amended by that certain First Amendment to Lease dated as of June 20, 2023 (as amended, the “Lease”), by and between ARE-WINTER STREET PROPERTY, LLC, a Delaware limited liability company (“Landlord”), and INTELLIA THERAPEUTICS, INC., a Delaware corporation (“Tenant”). Any initially capitalized terms used but not defined herein shall have the meanings given them in the Lease.
(ii) DiMella Shaffer shall be the architect (the “TI Architect”) for the Tenant Improvements, (iii) DPS shall be the process architect for the Tenant Improvements, (iv) Environmental Systems, Inc. shall be the MEP Engineer for the Tenant Improvements, and (v) any subcontractors for the Tenant Improvements shall be selected by Tenant, subject to Landlord’s approval, which approval shall not be unreasonably withheld, conditioned or delayed. Landlord shall be named a third party beneficiary of any contract entered into by Tenant with the TI Architect, any consultant, any contractor or any subcontractor, and of any warranty made by any contractor or any subcontractor.
$2,500,000 for 50% of the cost and installation of the new air handling unit (the “Air Handling Unit”), pursuant to plans and specifications reasonably acceptable to Landlord. Other than funding the TI Allowance (as defined below) as provided herein, completing the Landlord’s Work and the loading dock, reimbursing Tenant for the interconnecting staircase, and funding Landlord’s share of the cost and installation of Air Handling Unit, Landlord shall not have any obligation whatsoever with respect to the finishing of the Premises for Tenant’s use and occupancy.
Tenant shall be entitled to receive the benefit of all construction warranties and manufacturer’s equipment warranties relating to Landlord’s Work with respect to the Premises. If requested by Tenant, Landlord shall attempt to obtain extended warranties from manufacturers and suppliers of such Landlord’s Work, but the cost of any such extended warranties shall be borne solely out of the TI Fund. Landlord shall promptly undertake and complete, or cause to be completed, all Landlord’s Work punch list items, as reasonably determined by Landlord.
Build Contractor to execute and deliver, for the benefit of Tenant and Landlord, a Certificate of Substantial Completion in the form of the American Institute of Architects (“AIA”) document G704. For purposes of this Work Letter, “Minor Variations” shall mean any modifications reasonably required: (i) to comply with all applicable Legal Requirements and/or to obtain or to comply with any required permit (including the TI Permit); (ii) to comport with good design, engineering, and construction practices which are not material; or
(iii) to make reasonable adjustments for field deviations or conditions encountered during the construction of the Tenant Improvements.
From time to time, the Sound Manager (as defined below) may approve the waiver of some or all of the above Construction Limitations with respect to construction that would otherwise constitute Outside Hours Tenant Improvements. Tenant agrees to cooperate with Landlord reasonably and in good faith with respect to the scheduling or re-scheduling, as applicable, of the construction of Outside Hours Tenant Improvements with respect to which the Sound Manager has approved a waiver, so that such construction occurs during the Limit Hours to the extent that the Design Build Contractor can reasonably accommodate such scheduling without material delay in the then current construction schedule or increase in cost to Tenant. Tenant shall have no liability (except to the extent liability arises from the acts or omissions of Tenant or any Tenant Parties) arising from the Sound Manager’s waiver of any Construction Limitations.
For avoidance of doubt, the limitations set forth above shall not be applicable outside of the Limit Hours on weekdays or on weekends. During any period that Tenant is constructing Tenant Improvements that may generate noise or vibration that may exceed that limits set forth in Subsection 3(e)(iii) above, Landlord will cause, at Landlord’s cost, a sound manager to be at the Building (the “Sound Manager”) to monitor the levels of noise or vibration being generated by Tenant’s construction activities. To the extent that Tenant’s construction of Tenant Improvements includes activities (i) subject to Section 3(e)(i) or Section 3(e)(ii), or (ii) would, in the reasonable judgment of the Sound Manager, generate noise or vibration that exceed that limits set forth in Subsection 3(e)(iii) above, Tenant shall construct such Tenant Improvements outside of the Limit Hours (the “Outside Hours Tenant Improvements”). If Tenant is required, pursuant to the immediately precedent sentence, to construct Tenant Improvements outside the Limit Hours, then
(x) Landlord shall pay for any excess cost (including without limitation any costs incurred for so-called over- time or after-hours work) attributable to having to construct such Outside Hours Tenant Improvements (“Outside Hours Costs”), and such Outside Hours Costs shall not be paid by the TI Allowance, and (y) if the Design Build Contractor informs Tenant that as a result of having to perform such Tenant Improvements as Outside Hours Tenant Improvements the Substantial Completion of the Tenant Improvements will be
delayed beyond the scheduled Substantial Completion date, then the time period equal to such delays shall constitute a “Construction Limitations Delay.” Tenant agrees to cooperate with Landlord in good faith to minimize Tenant Improvements from being performed as Outside Hours Tenant Improvements and shall instruct the Design Build Contractor to do the same. Landlord and Tenant hereby acknowledge and agree that the Budget (described in Section 5(a) below) shall include a line item for Outside Hours Costs, which amount may be increased or decreased from time to time as contemplated in Section 5(d). In addition, at the time the Budget is being prepared and approved, Landlord and Tenant shall cooperate in good faith to determine an estimated schedule of completion of the Tenant Improvements and the amount of time within such schedule of completion attributable to Construction Limitation Delays, which estimated schedule of completion shall be subject to adjustment and/or modification from time to time as construction proceeds. In the event, during the construction of the Tenant Improvements, Tenant reasonably believes that the estimated Construction Limitation Delays as set forth in the agreed upon estimated schedule of completion, should be adjusted or modified, Tenant shall provide Landlord with written notice thereof describing the reasons for such adjustment or modification in reasonable detail, Landlord shall respond to such notice within ten (10) days of receipt of same and reasonably cooperate with Tenant to agree upon the additional time necessary for completion of the Tenant Improvements attributable to Construction Limitation Delays.
$150.00 per rentable square foot in the Premises, which shall, to the extent used, result in TI Rent as set forth in Section 4(b) of the Lease.
Landlord and Tenant hereby acknowledge and agree that Tenant has agreed to use and apply a portion of the Additional Tenant Improvement Allowance equal to $50.00 per rentable square foot of the Premises toward TI Costs (the “Initially Elected Additional Allowance”). Tenant shall be deemed to have elected to use any additional portion of the Additional Tenant Improvement Allowance over and above the Initially Elected Additional Allowance as of the date that Tenant submits a draw request to Landlord pursuant to Section 5(e) below for all or any portion of the Additional Tenant Improvement Allowance over and above the Initially Elected Additional Allowance, provided that Tenant may not request a draw with respect to the Additional Tenant Improvement Allowance until the Tenant Improvement Allowance has been fully disbursed. For avoidance of doubt, if Tenant does not initially submit a draw request to use the full amount of the Additional Tenant Improvement Allowance, Tenant shall have the right to subsequently (subject to the last paragraph of this Section 5(b)) submit a draw request to Landlord pursuant to Section 5(e) below for any portion of the Additional Tenant Improvement Allowance then remaining available.
The TI Allowance shall be disbursed in accordance with this Work Letter. Tenant shall have no right to the use or benefit (including any reduction to Base Rent) of any portion of the TI Allowance not required for the construction of (x) the Tenant Improvements described in the TI Construction Drawings approved pursuant to Section 2(d) or (y) any Changes pursuant to Section 4. Tenant shall have no right to any portion of the TI Allowance that is not requested by Tenant in accordance with Section 5(e) below before December 31, 2024; provided, however that such date shall be subject to extension 1 day for each day of Landlord Delays and/or Force Majeure.
On a monthly basis as construction of the Tenant Improvements progresses, as a component of the monthly Tenant reimbursement submission to Landlord, Tenant shall cause the Design Build Contractor to prepare (and deliver a copy to Landlord) a detailed progress report (i) identifying any Outside Hours Tenant Improvements constructed during the immediately preceding calendar month, which shall be broken down to show each subcontractors hourly manpower billing, TRG billing and any other component cost building of premium costs, (ii) reflecting the amount of the Outside Hours Cost Estimate actually expended toward Outside Hours Costs incurred during the immediately preceding calendar month, (iii) reflecting the total amount of the Outside Hours Cost Estimate expended for Outside Hours Tenant Improvements from the commencement of construction through the end of the immediately preceding calendar month, and (iv) reflecting, in the Design Building Contractor’s good faith reasonable opinion the (A) Outside Hours Tenant Improvements anticipated to be constructed during the following calendar month, (B) the total remaining Outside Hours Tenant Improvements anticipated to be constructed through the Substantial Completion of the Tenant Improvements, (C) the estimated Outside Hours Costs for remaining Outside Hours Tenant Improvements anticipated during the following calendar month, (D) the total estimated Outside Hours Costs for remaining Outside Hours Tenant Improvements anticipated through the Substantial Completion of the Tenant Improvements, and (E) remaining balance or existing shortfall in the Outside Hours Cost Estimate. If the Design Build Contractor’s report reflects either an existing shortfall in the amount of the Outside Hours Cost Estimate or an estimated shortfall in the remaining Outside Hours Tenant Improvements, then, along with its report, Design Build Contractor shall deliver an amended Budget to Landlord equitably adjusting the total amount of the Outside Hours Cost Estimate to include the remaining estimated Outside Hours Costs based on the anticipated remaining Outside Hours Tenant Improvements. Landlord shall not unreasonably withhold, condition or delay its approval of any such amendment to the Budget.
If, following the Substantial Completion of the Tenant Improvements and the payment of all TI Costs by Tenant, the actual Outside Hours Costs incurred by Tenant for Outside Hours Tenant Improvements is less than the amount of Outside Hours Cost Estimate (as may be adjusted pursuant to Section 5(d)) then, notwithstanding anything to the contrary contained in this Work Letter, Landlord shall not be required to fund any remaining portion of Outside Hours Cost Estimate amount in excess of such actual Outside Hours Costs incurred. If, following the Substantial Completion of the Tenant Improvements and the payment of all TI Costs by Tenant, the actual Outside Hours Costs incurred by Tenant for Outside Hours Tenant Improvements is more than the amount of the unapplied amount of the Outside Hours Cost Estimate (as may be adjusted pursuant to Section 5(d)) then Landlord shall reimburse Tenant for such additional Outside Hours Costs within 30 days after such determination.
also deliver to Landlord a forecast in the form of Schedule 5 completed to provide the projected remaining TI Costs.
In the event that Design Build Contractor learns that, notwithstanding Design Build Contractor’s pre-screening, an employee of Design Build Contractor or an employee of a Tenant Improvement Contractor Party who did not meet the screening criteria entered the Project (or within the incubation period after such entry such employee has been diagnosed with/tested positive for or presented symptoms consistent with those of COVID-19 or any other applicable Infectious Condition), Design Build Contractor shall immediately notify Landlord. Design Build Contractor will inform Design Build Contractor of the areas of the Project accessed by such employee and approximate date/time of access, but Design Build
Contractor shall not provide Landlord with any personally identifying information or health information of any such employee.
By way of example, the pre-screening for COVID-19 shall include both a temperature check of each employee and having each employee actively confirm the information listed below. Design Build Contractor shall not permit any of its employees or any employee of any Tenant Improvement Contractor Party to enter the Project unless, no earlier than the morning of such entry:
*Note: It is Design Build Contractor’s obligation to regularly consult with the CDC guidelines, as well as those of state and local Governmental Authorities, and update these questions to at all times to reflect current guidance as to when it is appropriate for employees of Design Build Contractor or any Tenant Improvement Contractor Parties to enter the Project. The questions listed above are current as of October 2, 2020.
If an employee of Design Build Contractor or any Tenant Improvement Contractor Party fits into any of the categories above, then Design Build Contractor shall not permit such employee to enter Project unless or until such employee has met the criteria established by the CDC for being around others (ending home isolation) and returning to work (e.g.: https://www.cdc.gov/coronavirus/2019-ncov/hcp/disposition-in-home-patients.html and https://www.cdc.gov/coronavirus/2019-ncov/if-you-are-sick/end-home-isolation.html).
Landlord shall not have any obligation notify Tenant, Design Build Contractor, or any Tenant Improvement Contractor Party of the existence of any CDC guidance or any modifications thereto.
Schedule 1
Tenant Improvement Work Readiness Condition
A portion of Landlord’s Work has been substantially completed to a level of completion sufficient to enable Tenant to commence the performance of the Tenant Improvements without material interference caused by the performance of the Landlord’s Work which remains to be completed.
Schedule 2 Landlord/Tenant Matrix
Schedule 3
Space Plans
Schedule 4
Tenant Improvement Progress Report
Schedule 5
TI Cost Forecast
Schedule 6
Initial Budget