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EXHIBIT 10.4(a)
FIRST AMENDMENT TO LEASE
This First Amendment to Lease to that certain Lease by and between Limar Realty
Corp. #11, successor in interest to Bayview Associates, a California joint
venture (hereinafter called "Landlord"), and Oclassen Pharmaceuticals, Inc., a
California corporation (hereinafter called "Tenant"), dated November 15,1988
("Lease") for the Premises located at 000 Xxxxxxx Xxx, Xxx Xxxxxx, Xxxxxxxxxx
("Premises"), is entered into as of the 10th day of October 1995.
RECITALS
This First Amendment to Lease is made with reference to and in reliance upon the
following facts:
A. On November 15, 1988, Landlord's predecessor in interest leased to
Tenant the Premises consisting of one (1) building containing a
total building area of approximately twenty-eight thousand three
hundred forty-four (28,344) rentable square feet, for a Term
expiring February 5,1997 ("Original Term").
B. Tenant and Landlord desire to amend the Lease to further extend the
Term, to define the Rent for the new Extension Period, and to add
certain other terms and conditions.
THEREFORE, for valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. EXTENSION OF LEASE:
The Term of the Lease shall be extended so as to end on December 31,
2002. The period from February 6, 1997 through December 31, 2002
(inclusive) shall be known as the "Extension Period". The Expiration
Date of the Extension Period shall be December 31, 2002.
2. RENT:
The Rent (as defined in the Lease) payable during the Extension
Period shall be $28,791.35 ("Base Rent") subject to adjustment in
accordance with changes in the Consumer Price Index ("CPI") as such
index is defined in Paragraph 3.2. The Rent shall be adjusted upon
the commencement of the Extension Period and upon each annual
anniversary thereof (each such adjustment point in time being
referred to herein as an "Adjustment Date") by multiplying the Base
Rent of $28,791.25 by a fraction the numerator of which shall be the
CPI published for the month which immediately precedes the
Adjustment Date and the denominator of which shall be the CPI for
the month of September, 1995, provided that in no event shall any
such adjustment cause the Rent to be decreased below the amount
existing immediately prior to said Adjustment Date.
3. OPTION TO EXTEND:
The Lease contains one (1) five-year Option to Extend (Paragraph
36). Effective with this First Amendment to Lease, the Option to
Extend shall remain available to Tenant. If, and only if, proper
written notice of the exercise of the Option is delivered to
Landlord by December 31, 2001, the Lease will be further extended
through December 31, 2007, with the Rent for such further extension
period to be determined in accordance with Paragraph 36.2 of the
Lease.
4. NET RENTABLE AREA:
The Net Rentable Area of the Premises is agreed to be 28,344 square
feet comprised of 20,311 square feet of office/lab area and 8,033
square feet of warehouse area.
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5. EXPENSES:
Expenses, as defined by Paragraph 14.1(d) of the Lease, shall
specifically include the cost of monitoring the groundwater of
Bayview Business Park ("Park") and the cost of methane gas
monitoring of the Park and buildings in the Park.
6. ADDITIONAL CHARGES LIMIT:
A new subparagraph 4.5 is added to the Lease as follows:
"4.5 The total Additional Charges for Taxes and Expenses
payable by Tenant for any Computation Year commencing
with the year of 1996 shall not exceed the Adjusted
Additional Charges Limit (as defined below) for the
subject year. The Additional Charges Limit shall be set
at $112,778.00 for 1995. For each year subsequent to
1995 the Additional Charges Limit shall be increased by
five percent (5%) of the previous years' Additional
Charges Limit ("Adjusted Additional Charges Limit"). At
Landlord's option, the Additional Charges Limit and the
Adjusted Additional Charges Limit will not apply to
property tax increases resulting from the sale of the
Premises or if Proposition 13 (Xxxxxx/Xxxx) is repealed
or modified to affect commercial properties. In the
event of increased taxes due to such a sale or
modification of Proposition 13, at Landlord's option,
the Additional Charges Limit and the Adjusted Additional
Charges Limit will be modified to remove property taxes.
In the case of such a modification, the Additional
Charges Limit and the Adjusted Additional Charges Limit
will apply to all Expenses except property taxes and
Tenant will be responsible for its full Tenant's Share
of property taxes. In all cases, if actual charge for
Taxes and Expenses for a given year are less than the
Adjusted Additional Charges Limit for the same year,
Tenant will pay only the actual charges."
7. TRAFFIC TRIPS:
The City of San Xxxxxx allocates "Traffic Trips" to the Park and to
each Tenant at Park. There are currently fifty-five (55) Traffic
Trips allocated to Tenant. Landlord agrees to transfer four (4) of
the Traffic Trips it has for the Park to Tenant, bringing Tenant's
total to fifty-nine (59) Traffic Trips.
8. IMPROVEMENT ALLOWANCE:
There is currently 6,464 square feet of area of Xxxx Corp. and
MicroAge space within the Premises that has been taken over by
Tenant but not yet improved. Per the Lease, Tenant is due a $4.00
per square foot improvement allowance for this space. The
improvement allowance for this 6,464 square feet is hereby increased
to $10.00 per square foot for a total improvement allowance of
$64,640.00. To be entitled to the Allowance, Tenant must provide
Landlord with satisfactory evidence that it has spent a minimum of
$25.00 per square foot to improve the 6,464 square feet of space.
9. TREES:
Landlord agrees to plant at its expense a row of twenty (20) trees
along the fence line of the MMWD (subject to written MMWD approval,
since the trees will be on MMWD land, which approval has been
verbally given to Landlord's landscaper). Those trees will be
24-inch box size with an initial height of approximately 11 to 15
feet and a canopy of approximately 3 to 5 feet and will be planted
approximately 15 feet on center. The existing bushes will be
retained to provide a low screen. Subsequent to the initial
planting, the cost to care for the trees will be an Expense and
billed to Tenant.
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10. VALENTINE CORPORATION:
Landlord agrees to use its absolute "Best Efforts" to cause
Valentine Corporation to comply with the building code regarding the
appearance of their site.
11. LEASE COMMISSION:
There shall be no real estate brokerage commission payable by
Landlord to any real estate broker which may claim to have
represented Tenant.
All other terms and conditions of said Lease shall remain in full force and
effect.
IN WITNESS WHEREOF, Landlord and Tenant have executed this First Amendment to
Lease as of the date first written above.
LANDLORD TENANT
LIMAR REALTY CORP. #11 OCLASSEN PHARMACEUTICALS, INC.
/s/ Xxxxx X. Xxxxxxx
/s/ Xxxxxxxx X. Xxxxxxxxxxxx ------------------------------
------------------------------------ Print Name: Xxxxx X. Xxxxxxx
Print Name: Xxxxxxxx X. Xxxxxxxxxxxx Its: President and CEO
Its: President
