EXHIBIT 10.18
FIRST AMENDMENT TO
EASTGATE POINTE LEASE
This FIRST AMENDMENT TO EASTGATE POINTE LEASE ("AMENDMENT") is made and
effective as of September 27, 2001 ("EFFECTIVE DATE"), by DIVERSIFIED EASTGATE
VENTURE, an Illinois general partnership ("LANDLORD"), and ILLUMINA, INC., a
Delaware corporation ("TENANT"), with reference to the facts set forth below.
R E C I T A L S:
A. Landlord and Tenant have entered into that certain Eastgate Pointe
Lease dated July 6, 2000 ("LEASE") whereby Landlord leased to Tenant certain
real property located in the County of San Diego, California, as more
particularly described therein ("PROPERTY").
B. Pursuant to that certain Option Agreement and Escrow Instructions
dated July 6, 2000, as amended by that certain First Amendment to Option
Agreement and Escrow Instructions dated May 25, 2001, that certain Second
Amendment to Option Agreement and Escrow Instructions dated July 18, 2001 and
that certain Third Amendment to Option Agreement and Escrow Instructions dated
concurrently herewith ("THIRD AMENDMENT") (collectively, "OPTION AGREEMENT"),
Landlord granted to Tenant an option ("OPTION") to purchase the Property. On or
about November 30, 2000, Tenant exercised its Option to purchase the Property.
C. The parties desire to enter into this Amendment to provide for the
commencement of the Lease Term and certain modifications to the Lease, as set
forth herein.
NOW THEREFORE, in consideration of the foregoing recitals, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as set forth below.
1. Section 4(g) -- Commencement Date. The parties acknowledge and agree
that, notwithstanding anything to the contrary set forth in the Lease, the
Commencement Date for the Lease Term shall be October 15, 2001. Any right to
terminate the Lease held by Tenant prior to the date hereof is hereby
terminated. As of the Commencement Date, Tenant shall be obligated to comply
with all terms and conditions of the Lease, including, without limitation, the
insurance requirements as modified herein.
2. Section 6(f) -- Management Fee. From the Commencement Date through
the Close of Escrow under the Option Agreement (or the termination of the Option
Agreement if the Option Agreement fails to close), Landlord agrees that,
notwithstanding Section 6(f)(viii) of the Lease, Tenant shall not be charged a
management fee as part of the Operating Expenses defined in Section 6(f).
3. Section 7 -- Insurance. From the Commencement Date through the Close
of Escrow under the Option Agreement (or the termination of the Option Agreement
if the Option Agreement fails to close), Tenant agrees that it shall be
obligated to satisfy all of the insurance obligations of Landlord set forth in
the Lease, at Tenant's sole cost and expense, including, without limitation,
those set forth in Section 7(c). With regard to the policy(ies) obtained by
Tenant to satisfy such obligations, Tenant shall (a) add Landlord to such
policy(ies) as a named insured, (b) obtain such additional endorsements as
Landlord or its lender may require, and (c) comply with the obligations set
forth in Section 7(b) of the Lease. The insurance obligations of Tenant set
forth in this Section shall be in addition to Tenant's other insurance
obligations set forth in the Lease. During the time Tenant is obligated to
satisfy Landlord's insurance obligations under the Lease, Landlord shall be
released from such obligations.
4. Section 14(c) -- Service Contracts. From the Commencement Date
through the Close of Escrow under the Option Agreement (or the termination of
the Option Agreement if the Option Agreement fails to close), Tenant shall have
the right to enter into service contracts ("Service Contracts") directly with
service providers with respect to the services which would otherwise be arranged
or provided by Landlord under Section 14(c) of the Lease. Tenant and Landlord
shall meet as necessary to determine in good faith which Service Contracts shall
be obtained directly by Tenant. All Service Contracts obtained by Tenant shall
be (a) paid in a timely manner by Tenant, (b) expressly subject to cancellation
with a maximum of thirty (30) days advance notice, (c) appropriately monitored
by Tenant so as to ensure full performance by the service provider(s), (d)
otherwise maintained in the manner required under the Lease with regard to other
Service Contracts obtained by Tenant, and (e) subject to Landlord's advance
approval, in Landlord's reasonable discretion. Landlord shall be released from
any obligation to arrange for or provide any of the services covered by the
Service Contracts obtained by Tenant hereunder.
5. Amendment. Except as expressly amended or modified by the provisions
and conditions of this Amendment, the Lease shall remain in full force and
effect.
6. Defined Terms. Capitalized Terms which are not otherwise defined
herein shall have the meanings attributed to them in the Lease.
7. Counterparts. This Amendment may be executed in counterparts.
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date set forth above.
LANDLORD: DIVERSIFIED EASTGATE VENTURE,
an Illinois general partnership
By: Diversified Eastgate Pointe, LLC,
a California limited liability company,
Its General Partner
By: /s/ XXXXXXX X. XXXXXXXX
--------------------------------
Its: Manager
By: GFBP Partners, LLC,
a California limited liability company,
Its General Partner
By: /s/ XXXXXXX X. XXXXXXXX
--------------------------------
Its: Manager
TENANT: ILLUMINA, INC.,
a Delaware corporation
By: /s/ XXXXXXX X. XXXX
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Name: Xxxxxxx X. Xxxx
Title: Vice President & Chief Financial Officer
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CONSENT OF LENDER
The undersigned, as "Lender" under that certain Construction Loan
Agreement dated September 26, 2000, hereby consents to the terms and conditions
of the foregoing First Amendment to Eastgate Pointe Lease.
Date: September 27, 2001 WASHINGTON CAPITAL JOINT MASTER
TRUST MORTGAGE INCOME FUND
By: Washington Capital Management, Inc.,
a Washington corporation,
Its Investment Manager
By: /s/ XXXXXX X. XXXXXXXX
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Name: Xxxxxx X. Xxxxxxxx
Title: President, California Division
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