SECOND AMENDMENT TO MULTI-TENANT INDUSTRIAL LEASE
EXHIBIT 10.5
SECOND AMENDMENT TO MULTI-TENANT INDUSTRIAL LEASE
THIS SECOND AMENDMENT TO MULTI-TENANT INDUSTRIAL LEASE (this “Amendment”) is entered
into as of this 21st day of August, 2007, by and between BMR-TORREYANA LLC, a Delaware
limited liability company (“Landlord”), as successor-in-interest to AEW/LBA Acquisition Co.
II, LLC (“Original Landlord”), and VERTEX PHARMACEUTICALS (SAN DIEGO) LLC
(“Tenant”), a Delaware limited liability company, as successor-in-interest to Aurora
Biosciences Corporation (“Original Tenant”).
RECITALS
A. WHEREAS, Original Landlord and Original Tenant entered into that certain Multi-Tenant
Industrial Lease dated as of April 7, 1997, as amended by that certain First Amendment to
Multi-Tenant Industrial Lease dated as of September 1, 1997 (collectively, and as the same may have
been further amended, supplemented or modified from time to time, the “Lease”), whereby
Tenant leases certain premises (the “Premises”) from Landlord at 00000 Xxxxxxxxx Xxxx xx
Xxx Xxxxx, Xxxxxxxxxx (the “Building”);
B. WHEREAS, Tenant desires to extend the term of the Lease; and
C. WHEREAS, Landlord and Tenant desire to modify and amend the Lease only in the respects and
on the conditions hereinafter stated.
AGREEMENT
NOW, THEREFORE, Landlord and Tenant, in consideration of the mutual promises contained herein
and for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound, agree as follows:
1. Definitions. For purposes of this Amendment, capitalized terms shall have the
meanings ascribed to them in the Lease unless otherwise defined herein. The Lease, as amended by
this Amendment, shall be referred to herein as the “Amended Lease.”
2. Extension Term. The term of the Lease is hereby extended for five (5) years,
ending on September 30, 2013 (the “Expiration Date”). The period from October 1, 2008,
through the Expiration Date shall be referred to herein as the “Extension Term.” Nothing in
this Section 2 shall affect Tenant’s right to exercise the Extension Options under the
Lease.
3. Basic Rent. As of the commencement of the Extension Term, Annual Basic Rent shall
equal Two Million Six Hundred Seventy-Nine Thousand Seven Hundred Thirty-Two Dollars ($2,679,732),
and Monthly Basic Rent shall equal Two Hundred Twenty-Three Thousand Three Hundred Eleven Dollars
($223,311). Annual Basic Rent and Monthly Basic Rent shall increase on each annual anniversary of
the commencement of the Extension Term by four percent (4%).
4. Repairs and Maintenance.
a. The following language is hereby deleted from Section 4.1 of the Lease: “but
Common Area shall include the ground floor entryway threshold, ground floor lobby, elevators and
all stairwells (except the middle stairwell).”
b. Subsection 11.3(c) of the Lease is hereby deleted and of no further force or
effect.
5. Taxes. Section 10.3 of the Lease is hereby deleted and of no further force
or effect.
6. Condition of Premises. Tenant acknowledges that (a) it is in possession of and is
fully familiar with the condition of the Premises and, notwithstanding anything contained in the
Lease to the contrary, agrees to take the same in its condition “as is” as of the first day of the
Extension Term, and (b) Landlord shall have no obligation to alter, repair or otherwise prepare the
Premises for Tenant’s continued occupancy for the Extension Term or to pay for any improvements to
the Premises, except as may be expressly provided in the Lease.
7. Broker. Tenant represents and warrants that it has not dealt with any broker or
agent in the negotiation for or the obtaining of this Amendment (“Broker”), and agrees to
indemnify, defend and hold Landlord harmless from any and all cost or liability for compensation
claimed by any such broker or agent employed or engaged by it or claiming to have been employed or
engaged by it.
8. No Default. Tenant represents, warrants and covenants that, to the best of
Tenant’s knowledge, Landlord and Tenant are not in default of any of their respective obligations
under the Lease and no event has occurred that, with the passage of time or the giving of notice
(or both) would constitute a default by either Landlord or Tenant thereunder.
9. Effect of Amendment. Except as modified by this Amendment, the Lease and all the
covenants, agreements, terms, provisions and conditions thereof shall remain in full force and
effect and are hereby ratified and affirmed. The covenants, agreements, terms, provisions and
conditions contained in this Amendment shall bind and inure to the benefit of the parties hereto
and their respective successors and, except as otherwise provided in the Lease, their respective
assigns. In the event of any conflict between the terms contained in this Amendment and the Lease,
the terms herein contained shall supersede and control the obligations and liabilities of the
parties. From and after the date hereof, the term “Lease” as used in the Lease shall mean the
Lease, as modified by this Amendment.
10. Miscellaneous. This Amendment becomes effective only upon execution and delivery
hereof by Landlord and Tenant. The captions of the paragraphs and subparagraphs in this Amendment
are inserted and included solely for convenience and shall not be considered or given any effect in
construing the provisions hereof. All exhibits hereto are incorporated herein by reference.
11. Counterparts. This Amendment may be executed in one or more counterparts that,
when taken together, shall constitute one original.
IN WITNESS WHEREOF, Landlord and Tenant have hereunto set their hands as of the date and year
first above written, and acknowledge that they possess the requisite authority to enter into this
transaction and to execute this Amendment.
LANDLORD:
| BMR-TORREYANA LLC, a Delaware limited liability company |
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| By: | /s/ Xxxx X. Xxxxxxxx | |||
| Name: | Xxxx X. Xxxxxxxx | |||
| Title: | Executive V.P. | |||
TENANT:
| VERTEX PHARMACEUTICALS (SAN DIEGO) LLC, a Delaware limited liability company |
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| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Name: | Xxxxxxx X. Xxxxx | |||
| Title: | Secretary | |||
