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Exhibit 10.31
FOURTH AMENDMENT TO LEASE
This FOURTH AMENDMENT TO LEASE is entered into as of the 26th day of
February, 1997 by and between NIPPON LANDIC (U.S.A), INC., a Delaware
Corporation ("Landlord") and AMYLIN PHARMACEUTICALS, INC.(formerly known as
AMYLIN, INC.), a Delaware Corporation ("Tenant").
RECITALS
A. Nexus/Gadco - UTC, a California joint venture, as landlord,
and Amylin, Inc., as tenant, entered into that certain Lease dated as of
January 2, 1989, as amended by that certain Amendment to Lease dated as of
February 23, 1989, that certain Second Amendment to Lease dated as of July 29,
1991, and that certain Third Amendment to Lease dated August 22, 1991
(collectively, the "Lease"), of the certain premises located in the building
commonly known as 0000 Xxxxx Xxxxxx Xxxxx, Xxx Xxxxx, Xxxxxxxxxx, as more
particularly described therein.
B. "Landlord" is the successor in interest to the landlord under
the "Lease".
C. Landlord and Tenant now desire for their mutual benefit to
amend certain terms and provisions of the Lease, including increasing the size
of the demised Premises.
NOW, THEREFORE, for $10.00 and other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties agree
as follows:
1. Demised Premises. As of April 1, 1997, the Demised Premises
will be increased to include approximately 9,325 square feet of Rentable Area
on the east side of the first floor of the Building located at 0000 Xxxxx
Xxxxxx Xxxxx and approximately 7,896 square feet of Rentable Area on the second
floor of the Building located at 0000 Xxxxx Xxxxxx Xxxxx (collectively, the
"Additional Premises"), as more particularly shown on Exhibit A-1 attached
hereto and incorporated herein by reference. Said Exhibit A-1 replaces in
their entirety Exhibits A-1 and A-2 previously included in the Lease.
2. Take Down Premises. Tenant agrees to lease from
Landlord and Landlord agrees to lease to Tenant approximately 41,794 square
feet of Rentable Area located in that certain Building located at 0000 Xxxxx
Xxxxxx Xxxxx as more particularly shown on Exhibit A-2 attached hereto and
incorporated herein by reference (the "Take Down Premises"), effective as of
the date Landlord tenders possession of the Take Down Premises to Tenant in
broom clean condition and free of all tenants and occupants (the "Take Down
Commencement Date"). Each party agrees to execute and deliver to the other
written acknowledgement of the actual Take Down Commencement Date when such
date is established (the "Acknowledgement of Term Commencement Date/Take Down
Premises"). Such acknowledgement shall be in form substantially similar to the
form attached to the Lease as Exhibit F.
3. Basic Lease Provisions.
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(a) Effective April 1, 1997, the following sections of Article 2 of
the Lease shall be amended to read as follows:
Section 2.1.2: "Designation of Tenant's Premises (Demised Premises):
a portion of the ground floor and second floor of 0000 Xxxxx Xxxxxx Xxxxx, and
a portion of the ground floor of 0000 Xxxxx Xxxxxx Xxxxx."
Section 2.1.3(a): "Initial Rentable Area: Approximately 45,283
square feet."
Section 2.1.3(b): "Initial Usable Area: Approximately 40,671 square
feet."
Section 2.1.4: "Initial Basic Annual Rent: $984,004.80."
Section 2.1.5: "Initial Monthly Rental Installments: $82,000.40."
Section 2.1.6: "Tenant's Pro Rata Share: Approximately 32.26% of
the Project."
Section 2.1.7(a): "Term Commencement Date: April 1, 1997."
Section 2.1.7(b): "Term Expiration Date: August 31, 2004."
Section 2.1.10: "Address for Rent Payment and Notices to Landlord:
Nippon Landic (U.S.A.), Inc., c/o Nexus Properties, Inc., 0000 Xx Xxxxx Xxxxxxx
Xxxxx, Xxxxx 000, Xxx Xxxxx, XX 00000. Address for Notices to Tenant: Amylin
Pharmaceuticals, Inc., Attn: Xxxxxxx Xxxxxx I, Chief Executive Officer, 0000
Xxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxx Xxxxx, XX 00000."
(b) Effective as of the Take Down Commencement Date, the following
sections of Article 2 of the Lease shall be amended to read as follows:
Section 2.1.2: "Designation of Tenant's Premises (Demised
Premises): a portion of the ground floor and second floor of 0000 Xxxxx Xxxxxx
Xxxxx, a portion of the ground floor of 0000 Xxxxx Xxxxxx Xxxxx and the entire
Building located at 0000 Xxxxx Xxxxxx Xxxxx."
Section 2.1.3(a): "Initial Rentable area: Approximately 87,077
square feet."
Section 2.1.3(b): "Initial Usable area: Approximately 78,195
square feet."
Section 2.1.4: "Initial Basic Annual Rent: $1,873,547.88."
Section 2.1.5: "Initial Monthly Rental Installments: $156,128.99."
Section 2.1.6: "Tenant's Pro Rata Share: Approximately 62% of
the Project."
Section 2.1.7(a): "Term Commencement Date: With respect to the
Additional Premises, the Term Commencement Date shall be April 1, 1997. With
respect to the Take Down Premises, the Take Down Commencement Date shall be that
date established in accordance with Section 2 of this Lease."
Section 2.1.7(b): "Term Expiration Date: August 31, 2004."
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4. Term. Section 3.2 of the Lease is amended to read in full
as follows: "The Term Expiration Date for this Lease is set forth in Section
2.1.7(b) above."
5. Possession and Rent for 0000 Xxxxx Xxxxxx Xxxxx.
5.1 Landlord shall endeavor to tender possession of 0000 Xxxxx
Xxxxxx Xxxxx vacuumed and clean on an "as-is, where-is" basis to Tenant on
February 1, 1998. Tenant agrees that in the event Landlord fails to tender
possession of 0000 Xxxxx Xxxxxx Xxxxx on or before February 1, 1998 neither
this Amendment nor the Lease shall be void or voidable, and Landlord shall not
be liable to Tenant for any loss or damage resulting therefrom. In such event,
however, Tenant shall not be liable for any Basic Annual Rent, Operating
Expenses, or other charge for the Take Down Premises until that date on which
Landlord tenders possession to Tenant. Nor shall Tenant be liable for any
Basic Annual Rent for the first floor during the first 30 days after Landlord
tenders possession of such premises to Tenant (but shall be liable for
Operating Expenses for such period). Rent on the second floor of the building
will commence upon the Take Down Commencement Date.
6. Improvement Allowance. Landlord will provide to Tenant an
allowance for improvements equal to $5.00 per square foot of Rentable Area for
35,958 square feet of Rentable Area in 0000 Xxxxx Xxxxxx Xxxxx, plus
$1,000,000.00 for converting a portion of 9,325 square feet of Rentable Area of
office space located in 0000 Xxxxx Xxxxxx Xxxxx into a vivarium. Upon
tendering 0000 Xxxxx Xxxxxx Xxxxx, Xxxxxxxx will provide to Tenant an allowance
for improvements equal to $5.00 per square foot of Rentable Area for 31,474
square feet of Rentable Area located in 0000 Xxxxx Xxxxxx Xxxxx and $30.00 per
square foot of Rentable Area for 10,320 square feet of Rentable Area located in
0000 Xxxxx Xxxxxx Xxxxx. If the $5.00 or the $30.00 per rentable square foot
allowances are not fully utilized in the spaces outlined above, Tenant may
apply any unused balance to construct improvements elsewhere within the Demised
Premises or the Take Down Premises as long as such improvements are real
property and not personal property and are completed during the term of the
lease.
Landlord will pay to Tenant such allowances upon presentation of
invoices for tenant improvement work performed in the Demised Premises and
Mechanics' Lien Releases.
The General Contractor selected by Tenant for improvement work and
plans for such work must be approved by Landlord in writing, which approval
shall not be unreasonably withheld, prior to commencement of any work. Upon
completion, Tenant shall provide Landlord with a copy of "as-built" drawings.
7. Rent Adjustment. The following language will be added to the
end of Section 5.5 of the Lease, which was created in Section 7 of the Second
Amendment: "As long as Tenant makes all of the monthly payments determined by
this rental adjustment, Tenant's obligation to make the rental adjustment
payments described in this Section will cease after August 1997."
8. CPI Adjustments. Section 6.1 of the Lease is amended to read
in full as follows: "The Basic Annual Rent for the Demised Premises (as
previously adjusted) will be increased by four percent (4.0%), compounded, on
each anniversary of the Term Commencement Date, which is anticipated to be
every April 1st. Notwithstanding the foregoing, no increase will be applied to
the Basic Annual Rent for the Take Down Premises on the first anniversary of
the Term Commencement Date for the Demised Premises, which is anticipated to be
April 1, 1998. The first increase of the Basic Annual Rent for the Take Down
Premises will occur on the second anniversary of the Term Commencement Date for
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Demised Premises. If the second anniversary of the Term Commencement Date
occurs on April 1, 1999 and if Landlord tendered possession of the Take Down
Premises to Tenant on or before February 1, 1998, the rent increase will be
equal to 4.6667% rather than 4%. But if the second anniversary of the
Commencement Date occurs on April 1, 1999 and Landlord tendered possession of
the Take Down Premisis to Tenant between February 2, 1998 and March 1, 1998
such increase will be 4.3333%, and 4.0% if Landlord tendered the building to
Tenant after March 1, 1998 but before April 1, 1998. The rent adjustment for
the Take Down Premises will be prorated for each additional month that Landlord
is delayed in delivering possession of such premises to Tenant. Subsequent
rental increases commencing on the third anniversary of the Commencement Date
and continuing thereafter throughout the Term shall be 4.0% per year.
9. Options to Renew. Section 39.1 of the Lease is amended to
read in full as follows: "Provided that Tenant is not in default of the lease,
which default is continuing after notice from Landlord and the expiration of
any grace period provided for in the Lease, Landlord shall provide Tenant with
two (2) five (5) year Options to Renew the Lease. The rental rate for the
renewal options shall be at 95% of the then prevailing Fair Market Value
("FMV") for comparable space in the University Towne Center and Xxxxxx Xxxxx
market. The FMV shall take into consideration (but not be limited to) the base
rental rate, rental increases, tenant improvement allowances, location in the
building and rental concessions, but shall specifically exclude the value of
any tenant improvements paid for by Tenant (net of the value of any tenant
improvements removed by Tenant). Tenant shall provide Landlord a minimum of
six months prior written notice of its intent to exercise the Option(s) to
Renew.
10. Roof and Interstitial Space Access. Landlord shall provide
Tenant with Roof and Interstitial Space Access during the lease term and all
subsequent renewal periods for the purposes of installing and maintaining its
HVAC equipment.
11. Right of First Refusal. Provided that the Tenant is not in
default at such time of any of the lease provisions, which default is
continuing after notice from Landlord and the expiration of any applicable
grace period provided for in the Lease, the Landlord shall provide Tenant with
a continuous Right of First Refusal on all space as it becomes available at
9373 and 0000 Xxxxx Xxxxxx Xxxxx. Tenant is aware that Orincon Industries,
Inc. ("Orincon") retains a Right of First Refusal on the areas of 9363 and a
portion of the second floor of 9373 that it currently occupies (the "Orincon
Space"). The Tenant's Right of First Refusal will be secondary to Orincon's
Right of First Refusal for this space. Notwithstanding the foregoing, Landlord
agrees that it shall not enter into negotiations with or enter into any
agreement concerning the Orincon Space with any party other than Tenant prior
to the expiration of the Orincon lease without the express written permission
of Tenant. The terms of Tenant's Right of First Refusal shall be at the terms
outlined in a bonafide Letter of Intent with an independent third party.
Tenant shall have fifteen (15) business days to respond to Landlord's notice of
said Right of First Refusal. The Right of First Refusal Agreement dated
January 2nd, 1989 and attached to the Lease is deleted in its entirety.
12. Parking. Landlord shall provide Tenant with a parking ratio
of four spaces per one thousand square feet (4:1,000) of leased area (less
parking spaces used by Tenant for equipment rooms or other purposes), at no
charge for the duration of the Tenant's lease and any option terms. In
addition, Landlord shall provide Tenant with five (5) additional reserved
visitor parking spaces for the duration of the Lease at no additional charge,
two (2) of which will be provided to Tenant concurrently with Tenant's
occupancy of 0000 Xxxxx Xxxxxx Xxxxx.
13. Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one in the same
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instrument. Signature pages may be detached from the counterparts and attached
to single copy of this document to physically form one document.
14. Memorandum of Lease. Landlord and Tenant agree to execute and
deliver to the other party, at its request, a short from memorandum of Lease in
recordable form.
15. Effect. Except as specifically amended herein, the terms and
provisions of the Lease shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Lease Amendment as of
the date first above written.
LANDLORD: TENANT:
NIPPON LANDIC (U.S.A.), INC., AMYLIN PHARMACEUTICALS, INC.,
a Delaware corporation a Delaware corporation
By: /s/ Xxxxxxxxx Xxxxxxxxx By:/s/ Xxxxxxxx X. Xxxx
Its: General Manager/Vice President Its: Vice President and General
Counsel
Exhibit A to this agreement is a depiction of the floor plans.
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