EXHIBIT 10.58
SECOND AMENDMENT
THIS SECOND 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 ("LESSOR") and LA JOLLA PHARMACEUTICAL COMPANY, A DELAWARE
CORPORATION ("LESSEE").
RECITALS
A. Lessor (as successor in interest pursuant to merger with Spieker
Properties, L.P., a California limited partnership, as successor in
interest to WCB II-S BRD Limited Partnership, a Delaware limited
partnership) and Lessee are parties to that certain standard
industrial/commercial lease dated September 6, 1996, which lease has been
previously amended by Acceptance of Space letter dated November 12, 1996
and First Amendment to Lease dated May 4, 2001 (collectively, the
"LEASE"). Pursuant to the Lease, Lessor has leased to Lessee space
currently containing approximately 16,800 square feet (the "PREMISES") in
the building commonly known as Westridge I located at 6465 Nancy Ridge
Drive, San Diego, California (the "BUILDING").
B. The Lease by its terms shall expire on JULY 31, 2004 ("PRIOR EXTENDED
EXPIRATION DATE"), and the parties desire to extend the Lease for the
Option Period (as defined in Section 39 of the Addendum attached to and
made a part of the Lease), 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, Lessor and Lessee agree as follows:
1. EXTENSION. The Lease is hereby extended for a period of sixty (60) months
and shall expire on JULY 31, 2009 ("SECOND EXTENDED EXPIRATION DATE"),
unless sooner terminated in accordance with the terms of the Lease. The
period commencing the day immediately following the Prior Extended
Expiration Date ("SECOND EXTENSION DATE") and ending on the Second
Extended Expiration Date shall be referred to herein as the "SECOND OPTION
PERIOD".
2. BASE RENT. As of the Second Extension Date, the schedule of Base Rent
payable with respect to the Premises during the Second Option Period is
the following:
PERIOD ANNUAL RATE PER SQUARE FOOT MONTHLY BASE RENT
August 1, 2004 through July 31, 2005 $13.20 $18,480.00
August 1, 2005 through July 31, 2006 $13.73 $19,222.00
August 1, 2006 through July 31, 2007 $14.28 $19,992.00
August 1, 2007 through July 31, 2008 $14.85 $20,790.00
August 1, 2008 through July 31, 2009 $15.44 $21,616.00
All such Base Rent shall be payable by Lessee in accordance with the terms
of the Lease.
3. ADDITIONAL SECURITY DEPOSIT. No additional security deposit shall be
required in connection with this Amendment.
4. COMMON AREA OPERATING EXPENSES AND REAL PROPERTY TAXES. For the period
commencing on the Second Extension Date and ending on the Second Extended
Expiration Date, Lessee shall pay for Lessee's Share of Common Area
Operating Expenses and Real Property Taxes in accordance with the terms of
the Lease.
5. IMPROVEMENTS TO PREMISES.
5.01. CONDITION OF PREMISES. Lessee is in possession of the Premises and
accepts the same "as is" without any agreements, representations,
understandings or obligations on the part of Lessor to perform any
alterations, repairs or improvements, except as may be expressly
provided otherwise in the Lease or this Amendment.
5.02. RESPONSIBILITY FOR IMPROVEMENTS TO PREMISES. Any construction,
alterations or improvements to the Premises shall be performed by
Lessee at its sole cost and expense using contractors selected by
Lessee and reasonably approved by Lessor and shall be governed in
all respects by the provisions of the Lease.
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 Lessee
be entitled to any Rent abatement, improvement allowance, leasehold
improvements, or other work to the Premises, or any similar economic
incentives
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that may have been provided Lessee 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 Lessor is not an offer to enter into
this Amendment. Lessor shall not be bound by this Amendment until
Lessor has executed and delivered the same to Lessee.
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. Lessee hereby represents to Lessor that Lessee has dealt with no
broker other than The Irving Hughes Group in connection with this
Amendment. Lessee agrees to indemnify and hold Lessor, its members,
principals, beneficiaries, partners, officers, directors, employees,
mortgagee(s) and agents, and the respective principals and members
of any such agents (collectively, the "LESSOR RELATED PARTIES")
harmless from all claims of any brokers other than The Irving Hughes
Group claiming to have represented Lessee in connection with this
Amendment. Lessor hereby represents to Lessee that Lessor has dealt
with no broker in connection with this Amendment. Lessor agrees to
indemnify and hold Lessee, its members, principals, beneficiaries,
partners, officers, directors, employees, and agents, and the
respective principals and members of any such agents (collectively,
the "LESSEE RELATED PARTIES") harmless from all claims of any
brokers claiming to have represented Lessor in connection with this
Amendment.
6.07. Lessor and Lessee each represents 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. CALIFORNIA WAIVERS. Notwithstanding anything to the contrary
contained in the Lease, Lessee 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.
6.09. Equity Office Properties Management Corp. ("EOPMC") is an affiliate
of Lessor and represents only the Lessor in this transaction. Any
assistance rendered by any agent or employee of EOPMC in connection
with the Lease or any subsequent amendment or modification hereto
has been or will be made as an accommodation to Lessee solely in
furtherance of consummating the transaction on behalf of Lessor, and
not as agent for Lessee.
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6.10. NO EXTENSION OR EXPANSION OPTIONS DURING THE SECOND OPTION PERIOD.
The parties hereto acknowledge and agree that during the Second
Option Period Lessee shall have no rights to extend the term of the
Lease, or expand or contract the Premises. The parties agree that
any rights existing in the Lease to extend the term of the Lease, or
expand or contract the Premises shall be deleted in their entirety
and are of no further force and effect.
IN WITNESS WHEREOF, Lessor and Lessee have duly executed this Amendment as
of the day and year first above written.
LESSOR:
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
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Name: Robert E. Dezzutti
Title: Senior Vice President
LESSEE:
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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