EXHIBIT 10.56
FOURTH AMENDMENT
THIS FOURTH AMENDMENT (the "AMENDMENT") is made and entered into as of July 8,
2004, by and between EOP-INDUSTRIAL PORTFOLIO, L.L.C., A DELAWARE LIMITED
LIABILITY COMPANY ("LANDLORD") and LA JOLLA PHARMACEUTICAL COMPANY, A DELAWARE
CORPORATION ("TENANT").
RECITALS
A. Landlord (as successor in interest pursuant to merger with Spieker
Properties, L.P., a California limited partnership, as successor in
interest to BRE Properties, Inc., a Delaware corporation) and Tenant are
parties to that certain lease dated July 27, 1992, which lease has been
previously amended by the Addendum to Lease dated July 27, 1992, First
Amendment to Lease dated March 15, 1993, Second Amendment to Lease dated
July 18, 1994 and Third Amendment to Lease dated January 26, 1995
(collectively, the "LEASE"). Pursuant to the Lease, Landlord has leased to
Tenant space currently containing approximately 36,526 rentable square
feet (the "PREMISES") in the building commonly known as Westridge I
located at 6455 Nancy Ridge Drive, San Diego, California (the "BUILDING").
B. Landlord and Tenant hereby acknowledge and agree that due to a scrivener
error in paragraph A of the Recitals of that certain Third Amendment to
Lease dated January 26, 1995, incorrectly stated that the Premises
contained approximately "36,256" rentable square feet of space. Landlord
and Tenant retroactively agree that from and after January 26, 1995, the
Premises contains approximately "36,526" rentable square feet.
C. The Lease by its terms shall expire on JULY 31, 2004 ("PRIOR EXTENDED
TERMINATION DATE"), and the parties desire to extend the Lease Term, all
on the following terms and conditions.
NOW, THEREFORE, in consideration of the above recitals which by this
reference are incorporated herein, the mutual covenants and conditions contained
herein and other valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Landlord and Tenant agree as follows:
1. EXTENSION. The Lease Term is hereby extended for a period of sixty (60)
months and shall expire on JULY 31, 2009 ("SECOND EXTENDED TERMINATION
DATE"), unless sooner terminated in accordance with the terms of the
Lease. That portion of the Lease Term commencing the day immediately
following the Prior Extended Termination Date ("SECOND EXTENSION DATE")
and ending on the Second Extended Termination Date shall be referred to
herein as the "SECOND EXTENDED TERM".
2. BASE RENT. As of the Second Extension Date, the schedule of Base Rent
payable with respect to the Premises during the Second Extended Term is
the following:
PERIOD ANNUAL RATE PER SQUARE FOOT MONTHLY BASE RENT
August 1, 2004 through July 31, 2005 $13.80 $42,004.90
August 1, 2005 through July 31, 2006 $14.35 $43,679.01
August 1, 2006 through July 31, 2007 $14.93 $45,444.43
August 1, 2007 through July 31, 2008 $15.52 $47,240.29
August 1, 2008 through July 31, 2009 $16.14 $49,127.47
All such Base Rent shall be payable by Tenant in accordance with the terms
of the Lease.
3. REAL PROPERTY TAXES. For the period commencing on the Second Extension
Date and ending on the Second Extended Termination Date, Tenant shall pay
for Tenant's pro rata share of the real property taxes and Tenant's pro
rata share of all costs incurred by Landlord for the operation and
maintenance of the Common Areas in accordance with the terms of the Lease.
4. IMPROVEMENTS TO PREMISES.
4.01. CONDITION OF PREMISES. Tenant is in possession of the Premises and
accepts the same "as is" without any agreements, representations,
understandings or obligations on the part of Landlord to perform any
alterations, repairs or improvements, except as may be expressly
provided otherwise in the Lease or this Amendment.
4.02. RESPONSIBILITY FOR IMPROVEMENTS TO PREMISES. Any construction,
alterations or improvements to the Premises shall be performed by
Tenant at its sole cost and expense using contractors selected by
Tenant and reasonably approved by Landlord and shall be governed in
all respects by the provisions of the Lease.
5. OTHER PERTINENT PROVISIONS. Landlord and Tenant agree that, effective as
of the date of this Amendment (unless different effective date(s) is/are
specifically referenced in this Section), the Lease shall be amended in
the following additional respects:
5.01. PARKING. For the period commencing on the Second Extension Date and
ending on the Second Extended Termination Date, Tenant shall retain
its existing vehicle parking rights as set forth in the Lease.
5.02. RIGHT OF FIRST REFUSAL TO LEASE 6465 NANCY RIDGE DRIVE AS SET FORTH
IN THE ADDENDUM TO LEASE shall be deleted in its entirety and is of
no further force and effect.
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5.03. LIMITATION ON LANDLORD'S LIABILITY. The obligations of Landlord
under the Lease (including any actual or alleged breach or default
by Landlord) do not constitute personal obligations of the
individual partners, directors, officers or shareholders of Landlord
or Landlord's partners, and Tenant shall not seek recourse against
the individual partners, directors, officers or shareholders of
Landlord or Landlord's partners, or any of their personal assets for
satisfaction of any liability with respect to the Lease. In
addition, the liability of Landlord for its obligations under the
Lease shall be limited solely to, and Tenant's sole and exclusive
remedy shall be against, Landlord's interest in the Industrial
Center, and no other assets of Landlord.
6. MISCELLANEOUS.
6.01. This Amendment and the attached exhibits, which are hereby
incorporated into and made a part of this Amendment, set forth the
entire agreement between the parties with respect to the matters set
forth herein. There have been no additional oral or written
representations or agreements. Under no circumstances shall Tenant
be entitled to any Rent abatement, improvement allowance, leasehold
improvements, or other work to the Premises, or any similar economic
incentives that may have been provided Tenant in connection with
entering into the Lease, unless specifically set forth in this
Amendment.
6.02. Except as herein modified or amended, the provisions, conditions and
terms of the Lease shall remain unchanged and in full force and
effect.
6.03. In the case of any inconsistency between the provisions of the Lease
and this Amendment, the provisions of this Amendment shall govern
and control.
6.04. Submission of this Amendment by Landlord is not an offer to enter
into this Amendment. Landlord shall not be bound by this Amendment
until Landlord has executed and delivered the same to Tenant.
6.05. The capitalized terms used in this Amendment shall have the same
definitions as set forth in the Lease to the extent that such
capitalized terms are defined therein and not redefined in this
Amendment.
6.06. Tenant hereby represents to Landlord that Tenant has dealt with no
broker other than Irving Hughes in connection with this Amendment.
Tenant agrees to indemnify and hold Landlord, its members,
principals, beneficiaries, partners, officers, directors, employees,
mortgagee(s) and agents, and the respective principals and members
of any such agents (collectively, the "LANDLORD RELATED PARTIES")
harmless from all claims of any brokers other than Irving Hughes
claiming to have represented Tenant in connection with this
Amendment. Landlord hereby represents to Tenant that Landlord has
dealt with no broker in connection with this Amendment. Landlord
agrees to indemnify and hold Tenant, its members, principals,
beneficiaries, partners, officers, directors, employees, and agents,
and the respective principals and members of any such agents
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(collectively, the "TENANT RELATED Parties") harmless from all
claims of any brokers claiming to have represented Landlord in
connection with this Amendment.
6.07. Landlord and Tenant each represent that each signatory of this
Amendment has the authority to execute and deliver the same on
behalf of the party hereto for which such signatory is acting.
6.08. Equity Office Properties Management Corp. ("EOPMC") is an affiliate
of Landlord and represents only the Landlord in this transaction.
Any assistance rendered by any agent or employee of EOPMC in
connection with this Lease or any subsequent amendment or
modification hereto has been or will be made as an accommodation to
Tenant solely in furtherance of consummating the transaction on
behalf of Landlord, and not as agent for Tenant.
6.09. CALIFORNIA WAIVERS. Notwithstanding anything to the contrary
contained in the Lease, Tenant hereby waives any and all rights
under and benefits of subsection 1 of Section 1932, Sections 1941
and 1942 (Tenant's Repairs and Alterations), 1932(2) (Casualty
Damage), and Section 1265.130 (Condemnation) of the California Code
of Civil Procedure, or any similar or successor laws now or
hereinafter in effect.
6.10. NO EXTENSION OPTIONS DURING THE SECOND EXTENDED TERM. The parties
hereto acknowledge and agree that during the Second Extended Term
Tenant shall have no rights to extend the term of the Lease. The
parties agree that any rights existing in the Lease to extend the
term of the Lease shall be deleted in their entirety and are of no
further force and effect.
6.11. LEASE CANCELLATION RIGHT AND RIGHT OF FIRST OFFER TO PURCHASE THE
PROJECT. The parties hereto acknowledge and agree that during the
Second Extended Term, the Lease Cancellation Right as set forth in
the Third Amendment to Lease and the Right of First Offer to
Purchase the Project as set forth in the Addendum to Lease shall
remain in full force and effect.
[SIGNATURES ARE ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Amendment
as of the day and year first above written.
LANDLORD:
EOP-INDUSTRIAL PORTFOLIO, L.L.C.,
\ A DELAWARE LIMITED LIABILITY COMPANY
By: EOP Operating Limited Partnership, a
Delaware limited partnership, its sole member
By: Equity Office Properties Trust, a
Maryland real estate investment trust,
its general partner
By: /s/ Robert E. Dezzutti
----------------------------
Name: Robert E. Dezzutti
Title: Senior Vice President
TENANT:
LA JOLLA PHARMACEUTICAL COMPANY,
A DELAWARE CORPORATION
By: /s/ Steven B. Engle
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Name: Steven B. Engle
Title: Chairman and CEO
Tenant's FEIN: 33-0361285
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