SECOND AMENDMENT TO SINGLE TENANT ABSOLUTE NET LEASE
Exhibit 10.1
SECOND AMENDMENT TO SINGLE TENANT ABSOLUTE NET LEASE
THIS SECOND AMENDMENT TO SINGLE TENANT ABSOLUTE NET LEASE (this “Amendment”) is
entered into as of this 21st day of December, 2009 (the “Second Amendment Effective Date”),
by and between 00000 XxXXXXXX XXXXX, L.P., a California limited partnership (“Landlord),
and QUIDEL CORPORATION, a Delaware corporation (“Tenant”).
RECITALS
A. WHEREAS, Landlord and Tenant entered into that certain Single Tenant Absolute Net Lease
dated as of December 20, 1999, as amended by that certain First Amendment to Single Tenant Absolute
Net Lease dated as of December 20, 1999 (as amended by this Amendment, and as the same may have
been otherwise amended, supplemented or modified from time to time, the “Lease”), whereby
Tenant leases the Premises from Landlord consisting of the Building at 00000 XxXxxxxx Xxxxx, Xxx
Xxxxx, Xxxxxxxxxx; and
B. WHEREAS, Landlord and Tenant desire to extend the Lease Term and provide Tenant with three
(3) renewal options of five (5) years each; 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.
2. Lease Term Extension. The expiration date of the initial Lease Term is hereby
changed from December 19, 2014 to December 31, 2019 (the “Initial Lease Term Expiration
Date”). The aforementioned extension of the initial Lease Term shall not constitute the
exercise of an extension option pursuant to Section 4.1 of the Lease.
3. Extension Options. Tenant is hereby granted one (1) additional option to extend
the Lease Term for a period of five (5) years, resulting in Tenant having the ability, pursuant to
Section 4.1 of the Lease, to extend the Lease Term for three (3) additional periods of five
(5) years each following the Initial Lease Term Expiration Date, subject to all the provisions of
the Lease.
4. Return of Deposit. Landlord and Tenant acknowledge that it is contemplated that
BioMed Realty, L.P. (“BioMed”) will make a mortgage loan to Landlord for the purpose of
refinancing Landlord’s current mortgage loan that is secured by the Premises. Upon payoff of
the existing mortgage loan (to Midland Loan Services, Inc. or its successors (the
“Lender”)), Landlord agrees, consistent with that certain letter, dated December 20, 1999
(the “Side Letter”), to return to Tenant the balance of that certain Tenant Improvements
and Leasing Commissions escrow account, which account is held by Lender and will be returned to the
Landlord upon the payoff of the existing loan. Consistent with the Side Letter, Landlord and
Tenant acknowledge that the Percentage Interests in Operating Cash Flow (as defined in Section
6(c)(i) and (ii) of the Landlord’s Agreement of Limited Partnership (the “Partnership
Agreement”)) of the Limited Partner (as defined in the Partnership Agreement) and the General
Partner (as defined in the Partnership Agreement) will remain 78% and 22% respectively, subject to
and in accordance with the Partnership Agreement.
5. Consent to Memorandum of Lease; Subordination, Non-Disturbance and Attornment
Agreement. By signing below, Landlord consents to Tenant recording a memorandum of lease to
record this Lease in the form attached hereto as Exhibit A. Landlord and Tenant also agree
to execute, and cause Lender to execute, a Subordination, Non-Disturbance and Attornment Agreement
in the form attached hereto as Exhibit B.
6. Condition of Premises. Tenant acknowledges that (a) it is in possession of and is
fully familiar with the condition of the Premises and (b) Landlord shall have no obligation to
alter, repair or otherwise prepare the Premises for Tenant’s continued occupancy or to pay for any
improvements to the Premises, except as may be expressly provided in the Lease.
7. Broker. Tenant acknowledges that BioMed will make a one-time payment of $25,000 to
Cresa Partners in connection with Cresa Partners negotiating, arranging and procuring the New Term
Loan Documents (as defined in the Partnership Agreement) and this Amendment. Tenant agrees to
indemnify, defend and hold Landlord harmless from any and all cost or liability for compensation
claimed by any broker engaged by Tenant or claiming to have been employed or engaged by it in
connection with negotiating, arranging or procuring this Amendment.
8. No Default. Landlord and Tenant each represents, warrants and covenants to the
other that, to the best of its knowledge, neither party is 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.
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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.
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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: 10165 XXXXXXXX COURT, L.P., a California limited partnership |
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| By: | BMR-10165 XXXXXXXX COURT GP LLC, its General Partner |
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| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxx | |||
| Title: | VP, Real Estate Counsel | |||
| TENANT: QUIDEL CORPORATION, a Delaware corporation |
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| By: | /s/ Xxxx X. Xxxxx | |||
| Name: | Xxxx X. Xxxxx | |||
| Title: | Chief Financial Officer | |||
[Signature Page to Second Amendment to Lease]
