EXHIBIT
99.1
FIRST
AMENDMENT TO LEASE AND AGREEMENT OF LEASE
R
E
C
I
T
A
L
S
:
A.
Landlord
and Tenant entered into that certain Lease and Agreement of Lease dated as
of
December 24, 1998 (the "
Lease
").
B.
Pursuant
to the Lease, Landlord leases to Tenant and Tenant leases from Landlord that
certain office space containing approximately 47,771 rentable square feet (the
"
Premises
")
of
those certain industrial and office warehouse buildings located at 14272 and
14282 Franklin Avenue, Tustin, California (collectively, the "
Buildings
").
C.
The
parties now desire to amend the Lease to extend the Term of the Lease and modify
various terms and provisions of the Lease, all as hereinafter
provided.
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:
1.
Capitalized
Terms
.
All
capitalized terms when used herein shall have the same meanings given such
terms
in the Lease unless expressly superseded by the terms of this First
Amendment.
2.
Extension
of Lease Term
.
The
Primary Term which is scheduled to expire on December 31, 2010 is hereby
extended until December 31, 2017 (the "
Revised
Termination Date
").
Such
period commencing as of the Effective Date and ending on the Revised Termination
Date shall be referred to herein as the "
Revised
Primary Term
".
3.
Base
Rent
.
During
the Revised Primary Term, Tenant shall pay Base Rent to Landlord for the
Premises in accordance with the following schedule:
Period
of
Revised
Primary Term
|
|
Annual
Base
Rent
|
|
Monthly
Base
Rent
|
|
Effective
Date-12/31/2006
|
|
$
|
745,135.44
|
|
$
|
62,094.62
|
|
1/1/2007-12/31/2008
|
|
$
|
770,097.48
|
|
$
|
64,174.79
|
|
1/1/2009-12/31/2010
|
|
$
|
795,895.68
|
|
$
|
66,324.64
|
|
1/1/2011-12/31/2012
|
|
$
|
822,558.24
|
|
$
|
68,546.52
|
|
1/1/2013-12/31/2014
|
|
$
|
850,113.96
|
|
$
|
70,842.83
|
|
1/1/2015-12/31/2016
|
|
$
|
878,592.72
|
|
$
|
73,216.06
|
|
1/1/2017-12/31/2017
|
|
$
|
908,025.60
|
|
$
|
75,668.80
|
|
4.
Options
to Renew
.
Tenant
shall continue to have the options to renew the Lease, as hereby amended, as
provided in Section 2.1 of the Lease, except that (a) Tenant’s first
(1
st
)
option
to extend the Revised Primary Term shall commence on the expiration of the
Revised Primary Term and end on December 31, 2022 (such period commencing on
January 1, 2018 and ending on December 31, 2022 herein referred to as the
"
1
st
Extended
Term
");
(b) the Base Rent payable by Tenant during the 1st Extended Term shall be
as set forth in the following schedule:
Periods
of
1st
Extended Term
|
|
Annual
Base
Rent
|
|
Monthly
Base
Rent
|
|
1/1/2018-12/31/2018
|
|
$
|
908,025.60
|
|
$
|
75,668.80
|
|
1/1/2019-12/31/2020
|
|
$
|
938,444.40
|
|
$
|
78,203.70
|
|
1/1/2021-12/31/2022
|
|
$
|
969,882.24
|
|
$
|
80,823.52
|
|
(c)
Tenant’s second (2
nd
)
option
to extend the 1
st
Extended
Term shall commence on the expiration of the 1
st
Extended
Term and end on December 31, 2027 (such period commencing on January 1, 2023
and
ending on December 31, 2027 herein referred to as the "
2
nd
Extended Term
");
and
(d) the Base Rent payable by Tenant during the 2
nd
Extended
Term shall be as set forth in the following schedule:
Periods
of
2nd
Extended Term
|
|
Annual
Base
Rent
|
|
Monthly
Base
Rent
|
|
1/1/2023-12/31/2024
|
|
$
|
1,002,373.32
|
|
$
|
83,531.11
|
|
1/1/2025-12/31/2026
|
|
$
|
1,035,952.80
|
|
$
|
86,329.40
|
|
1/1/2027-12/31/2027
|
|
$
|
1,070,657.16
|
|
$
|
89,221.43
|
|
5.
Condition
of Premises
.
Tenant
is in possession of the Premises and accepts the same in its current "AS IS"
condition without any agreements, representations, understandings or obligations
on the part of Landlord to perform or pay for any alterations, repairs or
improvements.
6.
Miscellaneous
Deletions
.
Section
5.6 of the Lease and Exhibit “F” attached to the Lease are hereby deleted in
their entirety.
7.
Brokers
.
Landlord and Tenant hereby warrant to each other that they have had no dealings
with any real estate broker or agent in connection with the negotiation of
this
First Amendment other than Cushman & Wakefield of California, Inc. (the
"
Broker
"),
and
that they know of no other real estate broker or agent who is entitled to a
commission in connection with this First Amendment. Each party agrees to defend,
indemnify and hold the other party harmless from and against any and all claims,
demands, losses, liabilities, lawsuits, judgments, and costs and expenses
(including, without limitation, reasonable attorneys' fees) with respect to
any
leasing commission or equivalent compensation alleged to be owing on account
of
any dealings with any real estate broker or agent, other than to the Broker,
occurring by, through or in connection with the indemnifying party.
8.
Counterparts
.
This
First Amendment may be executed in multiple facsimile counterparts, each of
which is to be deemed an original for all purposes, but all of which together
shall constitute one and the same instrument.
9.
No
Further Modification
.
Except
as set forth in this First Amendment, all of the terms and provisions of the
Lease shall remain unmodified and in full force and effect.
IN
WITNESS WHEREOF, Landlord and Tenant have caused this First Amendment to be
duly
executed and delivered on the date shown below, their respective signatures
to
memorialize the agreement of the parties, as of the date first above
written.
|
|
|
"
Landlord
"
|
TNCA,
LLC.
a
Delaware limited liability company
|
|
|
|
|
By:
|
TNCA
Holdings, LLC,
a Delaware limited liability company
Its Manager
|
|
|
|
|
By:
|
/s/
C. FREDERICK WEHBA II
|
|
|
|
Name:
C. Frederick Wehba II
Title:
President
|
|
|
|
Executed
Date: December 22, 2005
|
|
|
|
"
Tenant
"
|
PEREGRINE
PHARMACEUTICALS, INC.,
a Delaware corporation (successor-in-interest
to
Techniclone
Corporation, a Delaware corporation)
|
|
|
|
|
By:
|
/s/
PAUL J. LYTLE
|
|
|
|
Name:
Paul J. Lytle
Title:
Chief Financial Officer
|
|
|
|
Executed Date: December 22, 2005
|
|
|
|
|
EXHIBIT
99.2
TNCA,
LLC
10250
Constellation Boulevard, Suite 2300
Los
Angeles, CA 90067
December
22, 2005
Peregrine
Pharmaceuticals, Inc.
14282
Franklin Avenue
Tustin,
CA 92780
Attn:
Paul J. Lytle, Chief Financial Officer
Ladies
and Gentlemen:
In
connection with execution of the First Amendment to Lease and Agreement of
Lease, dated as of December 22, 2005 (“First Amendment”), to that certain Lease
and Agreement of Lease, dated as of December 24, 1998, each of the foregoing
by
and between TNCA, LLC, a Delaware limited liability company (“Landlord”), and
Peregrine Pharmaceuticals, Inc., a Delaware corporation (successor-in-interest
to Techniclone Corporation, a Delaware corporation) (“Tenant”), Landlord and
Tenant hereby concurrently agree to a discounted payoff of the Loan (defined
below) as follows:
On
or
about December 24, 1998, Landlord executed that certain Promissory Note (the
"
Note
")
in
favor of Tenant in the original principal amount of One Million Nine Hundred
Twenty-Five Thousand Dollars ($1,925,000.00) (the "
Loan
").
The
Note is secured by that certain Pledge and Security Agreement (the "
Pledge
Agreement
")
executed on or about December 24, 1998 by Landlord in favor of Tenant, and
by
certain UCC Financing Statements (collectively, the "
Financing
Statements
")
executed on or about December 24, 1998 by Landlord in favor of Tenant. The
Note,
Pledge Agreement and Financing Statements are referred to herein as the
"
Loan
Documents.
"
Concurrently
with the execution of the First Amendment and the funding contemplated by that
certain Loan Agreement by and between Landlord and Bank of America, N.A.
scheduled to fund contemporaneously herewith (the “Funding”), Landlord shall pay
to Tenant, via wire transfer, the then outstanding principal balance of the
Loan; provided, however, that immediately prior to such repayment, Tenant shall
reduce the then current principal balance of the Loan by twenty percent (20%),
and such repayment by Landlord shall be based on the amount of such reduced
loan
balance, plus any accrued interest owed to date, in the total aggregate amount
of $1,228,668.55 Concurrently with Landlord's repayment of the Loan (as reduced)
and accrued interest, Tenant shall deliver to Landlord a termination of the
Pledge Agreement, and cause the Financing Statements to be
terminated.
If
Landlord does not make the payment provided for in this letter agreement to
Tenant within seven (7) business days from the date of the Funding, and in
any
event by February 1, 2006, then: (a) the twenty percent (20%) reduction in
the
principal balance of the Loan provided for in this letter agreement shall
automatically terminate, and the amount payable by Landlord to Tenant pursuant
to this letter agreement shall be the full outstanding principal balance of
the
Loan without regard to the terminated reduction, plus any accrued interest
owed
to date; and (b) the First Amendment shall no longer have any force or
effect.
In
any
action to enforce or interpret this letter agreement, the prevailing party
shall
recover from the other party, in addition to any damages or other relief, all
costs (whether or not allowable as “cost” items by law) incurred at, before, and
after arbitration, reference proceeding, trial, or on appeal, or in any
bankruptcy proceeding, including without limitation attorneys’ fees and witness
(expert and otherwise) fees, deposition costs, and other expenses.
This
letter agreement, dated as of the date set forth above, may be executed in
multiple facsimile counterparts, each of which is to be deemed an original
for
all purposes, but all of which together shall constitute one and the same
instrument.
Acknowledged
and Agreed:
TNCA,
LLC, a Delaware limited liability company
By:
|
TNCA
Holding, LLC, a Delaware limited liability
company
|
By:
|
/s/
C. FREDERICK WEHBA II
|
|
C. Frederick Wehba II,
President
|
PEREGRINE
PHARMACEUTICALS, INC.,
a
Delaware corporation (successor-in-interest to Techniclone Corporation, a
Delaware corporation)
|
Paul J. Lytle, Chief Financial
Officer
|