EXHIBIT 10.20
FIRST AMENDMENT TO LEASE
This First Amendment to Lease Agreement (the "First Amendment") is made and
entered into as of April l4, 2000 by and between BioMarin Pharmaceutical, Inc.,
a Delaware corporation ("Tenant") and Limar Realty Corp. #18, a California
corporation ("Landlord"), with reference to the following facts:
RECITALS
A. Landlord and Tenant entered into that certain Lease Agreement dated
June 25, 1998 (the "Lease") whereby Tenant is leasing from Landlord and
Landlord is leasing to Tenant that certain real property located at 46
Galli Drive, South Building, Novato, California containing 31,056
rentable square feet (the "Existing Premises"), as such premises are
more fully described in the Lease.
B. Tenant and Landlord wish to modify some of the provisions of the Lease
to permit Tenant to extend the Term of the Lease for the Existing
Premises and lease additional area containing 38,793 rentable square
feet known as 46 Galli Drive, North Building (the "Additional
Premises") so that the total area shall become 69,849 rentable square
feet (the "Expanded Premises") comprised of the Existing Premises and
the Additional Premises.
C. Landlord and Tenant desire to modify the Lease on terms and conditions
set forth in this First Amendment.
NOW, THEREFORE, in consideration of the mutual covenants, representations and
warrants contained in the Lease and this First Amendment, Landlord and Tenant
hereto agree as follows:
1. Recitals: Landlord and Tenant agree that the above recitals are
true and correct.
2. Expanded Premises: Commencing on the Additional Premises
Commencement Date (as defined below), Landlord hereby leases to
Tenant and Tenant hereby leases from Landlord, that certain real
property located at 46 Galli Drive, Novato, California containing
69,849 rentable square feet (i.e., the Expanded Premises( upon
all of the terms and conditions set forth in the Lease, as the
same are amended by this First Amendment.
3. Term:
A. Lease Commencement. This First Amendment shall be
effective as to the Additional Premises on the earliest
to occur of: (i) substantial completion of the Approved
Work (as defined below) in the Additional Premises;
(ii) Tenant's commencement of occupancy of the
Additional Premises; or (iii) one hundred twenty (120)
days following execution of this First Amendment (the
"Additional Premises Commencement Date").
B. Lease Expiration. The Term of the Lease as to the
Expanded Premises shall expire at 11:59 p.m. on August
31, 2010.
4. Monthly Base Rent: The Monthly Base Rent to be paid by Tenant to
Landlord shall be as follows:
A. Existing Premises. The monthly Base Rent for the Existing
Premises will remain as scheduled in the Lease and shall
continue forward with the annual CPI adjustment pursuant
to Paragraphs 1.n. and 4.(b) of the Lease on September 1,
2003 and every September 1 thereafter.
B. Additional Premises. The initial monthly Base Rent for the
Additional Premises shall be Forty-Three Thousand Nine
Hundred Eighty-Six and 71/100 Dollars ($43,986.71).
Commencing September 1, 2001 and each September 1
thereafter, the monthly Base Rent for the Additional
Premises shall be increased in accordance with the annual
Cost of Living Adjustment as set forth in Paragraph 4.b.
of the Lease provided, however, the annual floor limit as
set forth in Paragraph 1.n. of the Lease for the
Additional Premises (the "Additional Premises Floor
Limit") shall be an increase of four percent (4%) and the
annual ceiling limit for the Additional Premises (the
"Additional Premises Ceiling Limit") shall be an increase
of six percent (6%).
5. Tenant's Pro Rata Share: Commencing on the Additional Premises
Commencement Date, Tenant's Share of Building pursuant to
Paragraph 1.j. of the Lease and Tenant's Share of Property
pursuant to Paragraph 1.k. of the Lease shall be increased to one
hundred percent (100%).
6. Condition of the Premises: Tenant hereby accepts and agrees to
occupy the Additional Premises in its current "as is" condition
with the roof water tight. The elevator serving the production
space portion of the Additional Premises shall be fully
operational and certified by the State of California as of the
Additional Premises Commencement Date. Within twelve (12) months
after the Additional Premises Commencement Date, Landlord shall
repaint the exterior of the Building and upgrade the exterior
landscaping. Landlord hereby grants Tenant a one-time
construction allowance of up to Three Hundred Eighty-Seven
Thousand Nine Hundred Thirty Dollars ($387,930.00) ("Tenant's
Construction Allowance") for the cost of generic tenant
improvements to be installed in the Additional Premises by Tenant
including all associated architectural, engineering and
professional fees and costs (exclusive of any overhead costs of
Landlord). If requested by Tenant no later than September 1,
2001, Landlord shall provide an additional allowance ("Tenant's
Improvement Allowance") of up to $193,965 to reimburse Tenant for
additional Approved Work. The amount of Tenant's Improvement
Allowance that is actually used shall be fully amortized
(inclusive of 10% per annum interest) over the Term of the Lease
payable monthly as additional Rent. Tenant shall submit its plans
for the tenant improvements for Landlord's written approval (the
"Approved Work") prior to Tenant's commencement of construction
of the Approved Work, and Landlord shall respond within five (5)
business days of the date Tenant provides Landlord any specific
set of complete preliminary or complete final plans required by
Landlord's approval. All work performed by Tenant shall be
performed in strict compliance with the plans submitted for the
Approved Work and no modification shall be made in such plans
without the prior written approval of Landlord. Landlord shall
pay Tenant's outside vendors or contractors for materials and
services constituting the Approved Work, up to the maximum
Tenant's Construction Allowance set forth above, within thirty
(30) days following Landlord's receipt of Tenant's submittal to
Landlord of approved invoices and conditional lien releases for
payment. Tenant shall also be reimbursed from Tenant's
Construction Allowance for the reasonable cost of all preliminary
and final plans and specifications and all permits relating to
the installation of the Approved Work. All of the Approved Work
to be done by Tenant shall be done in accordance with the
provisions of Paragraph 14. of the Lease, and Tenant shall be
required to follow Landlord's reasonable rules and regulations
relating to contractors working in the Project. Landlord shall
have the right to reasonably approve all of Tenant's proposed
contractors and subcontractors related to the installation of the
Approved Work. Landlord shall not charge an administrative fee
relating to the installation of the Approved Work. Tenant shall
have the right to access the Additional Premises upon full
execution of this First Amendment and vacation of the Additional
Premises by the existing tenant for the purpose of installing the
Approved Work (the "Construction Period"), provided, however,
Tenant shall be bound by the terms and conditions of the Lease
and this First Amendment during the Construction Period except
for Tenant's obligation to pay Base Rent or Operating Expenses.
7. Option(s) to Renew: Tenant's Option(s) to Renew as set forth in
Paragraph 32. of the Lease shall be deleted in its entirety and
replaced with the following:
"OPTIONS TO RENEW:
a. Grant of Option(s). Tenant shall have the right, at its
option, to expand the Lease for the Extended Premises
for two (2) period(s) of five (5) years each ("Extended
Term(s)") on an "as is" basis commencing at the
expiration of the previous Term, provided that at the
time of exercise and at the time of commencement of
each Extended Term, Tenant is not in default beyond any
applicable cure period under this Lease.
b. Exercise of Option(s). If Tenant decides to extend the
Lease for an Extended Term, Tenant shall give written
notice to Landlord of its election to extend not less
than nine (9) months prior to the expiration of the
previous Term. Tenant's failure to give timely notice
to Landlord of Tenant's election to extend shall be
deemed a waiver of Tenant's right to extend. The terms
and conditions
applicable to each Extended Term shall be the same
terms and conditions contained in this Lease except
that Tenant shall not be entitled to any further
option to extend beyond the second Extended Term. The
Base Rent for each Extended Term shall be as
determined in accordance with Paragraph c, below.
c. Determination of Base Rent During Extended Term(s).
1) Agreement on Initial Base Rent. Landlord shall not
be obligated to provide Tenant with the proposed
fair market rental value until six (6) months
prior to the expiration of the previous Term.
Landlord and Tenant shall have thirty (30) days
after Landlord provides the proposed fair market
rental value in which to agree on the Base Rent
during each Extended Term, which shall be the fair
market rental value of the Premises during said
Extended Term. The initial fair market rental
value of the Premises during said Extended Term
shall be based on the uses of the Premises
permitted under this Lease, and quality, size,
design and location of the Premises, and the
rental value for lease renewals or extensions of
comparable size, quality and location, provided,
however, the initial Fair Market Rental Value
shall be subject to a 4% annual rental increase.
If Landlord and Tenant agree on the Base Rent for
each Extended Term during the thirty (30) day
period, they shall immediately execute an
amendment to this Lease stating the new Base Rent.
2) Selection of Appraisers. If Landlord and Tenant
are unable to agree on the Base Rent (including
any periodic adjustments) for the subject Extended
Term within the thirty (30) day period, then
within ten (10) days after the expiration of the
thirty (30) day period and provided that Tenant
has timely exercised the subject renewal option as
set forth above, Landlord and Tenant each at its
own cost and by giving notice to the other party,
shall appoint a competent and disinterested real
estate appraiser with at least five (5) years
full-time commercial appraisal experience in the
Marin County market area to appraise the fair
market rental value of the Premises and set the
initial Base Rent during said Extended Term. If
either Landlord or Tenant does not appoint an
appraiser within said ten (20) days, the single
appraiser appointed shall be the sole appraiser
and shall set the Initial Base Rent during said
Extended Term. If two (2) appraisers are appointed
by Landlord and Tenant as stated herein, they
shall meet promptly and attempt to set the Initial
Base Rent for said Extended Term. If the two (2)
appraisers are unable to agree within thirty (30)
days after the second appraiser has been
appointed, they shall attempt to select a third
appraiser meeting the same qualifications within
ten (20) days after the last day the two (2)
appraisers are given to set the Initial Base Rent.
If they are unable to agree on the third
appraiser, either Landlord or Tenant, by giving
ten (10) days' notice to the other party, can
apply to the then President of the Real Estate
Board or to the Presiding Judge of the Superior
Court of the county in which the Premises are
located, for the selection of a third appraiser
who meets the qualifications stated herein.
Landlord and Tenant each shall bear one-half (1/2)
of the cost of appointing the third appraiser and
of paying the third appraiser's fee. The third
appraiser, however selected, shall be a person who
has not previously acted in any capacity for
either Landlord or Tenant, or their affiliates.
3) Value Determined by Three (3) Appraisers. Within
thirty (30) days after the selection of the third
appraiser, a majority of the appraisers shall set
the Initial Base Rent for each Extended Term. If a
majority of the appraisers are unable to set the
Initial Base Rent within the stipulated period of
time, Landlord's appraiser shall arrange for
simultaneous exchange eof written appraisals from
each of the appraisers and the three (3)
appraisals shall be added together and their total
divided by three (3); the resulting quotient shall
be the Initial Base Rent for the Premises during
each Extended Term. If, however, the low appraisal
and/or the high appraisal are/is more than fifteen
percent (15%) lower and/or higher than the middle
appraisal, such low appraisal and/or high
appraisal shall be disregarded. If only one (1)
appraisal is disregarded, the remaining
two (2) appraisals shall be added together
and their total divided by two (2); the
resulting quotient shall be the Initial Base
Rent for the Premises during each Extended
Term. If both the low appraisal and the high
appraisal are disregarded as stated in this
Paragraph c3, the middle appraisal shall be the
Initial Base Rent for the Premises during
each Extended Term.
4) Minimum Base Rent Level. Notwithstanding any other
provision of this Lease, in no event shall the
Initial Base Rent for the subject Extended Term be
less than the Base Rent prevailing immediately
prior to the expiration of the previous Term.
8. Parking: Commencing on the Additional Premises Commencement Date,
Tenant's parking shall be increased to include all of the parking
spaces included with the Property.
9. Security Deposit: Landlord acknowledges that Tenant has previous
deposited with Landlord a Security Deposit in the amount of $114,000.00
(the "Existing Security Deposit"). Upon execution of this First
Amendment, Tenant shall deposit with Landlord an additional security
deposit (the "Additional Security Deposit") in the amount of $87,973.42
so that the Existing Security Deposit combined with the Additional
Security Deposit shall collectively provide for an Expanded Premises
Security Deposit of $201,973.42 to be held by Landlord in accordance
with Paragraph 6 of the Lease.
10. Effect of Amendment: Except as modified herein, the terms and
conditions of the Lease shall remain unmodified and continue in full
force and effect as to the Expanded Premises. In the event of any
conflict between the terms and conditions of the Lease and this First
Amendment, the terms and conditions of this First Amendment shall
prevail.
11. Definitions: Unless otherwise defined in this First Amendment, all
terms not defined in this First Amendment shall have the meaning set
forth in the Lease.
12. Authority: Subject to the provisions of the Lease, this First Amendment
shall be binding upon and inure to the benefit of the parties hereto,
their respective heirs, legal representatives, successors and assigns.
Each party hereto and the persons signing below warrant that the person
signing below on such party's behalf is authorized to do so and to bind
such party to the terms of this First Amendment.
IN WITNESS WHEREOF, the parties hereto have executed this First Amendment as of
the first date set forth hereinabove.
TENANT: LANDLORD:
BioMarin Pharmaceutical, Inc., Limar Realty Corp. #10,
a Delaware corporation a California corporation
By: /s/ R. W. Anderson By: /s/ Thomas Numainville
Name: R. W. Anderson Name: Thomas A. Numainville
Title: V.P. Fin. and Admin. Title: Sr. V.P.
Date: April 19, 2000 Date: 4-28-00
By: /s/Christopher M. Stein By: /s/ Thomas A. Numainville
Name: Christopher M. Stein Name: Thomas A. Numainville
Title: V.P. Research & Development Title: Asst. Secretary
Date: 4/28/00 Date: 4/28/00