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Exhibit
10.1
ALTON PLAZA
FIFTH AMENDMENT TO
LEASE
( Expansion of Premises;
Extension of Term )
THIS FIFTH AMENDMENT TO LEASE
(this “Amendment”) dated for reference purposes only as
of July 25, 2007, is entered into by and between ALTON PLAZA
PROPERTY, INC., a Delaware corporation (“Lessor” or
“Landlord”), and ISTA PHARMACEUTICALS, INC., a Delaware
corporation (“Lessee” or
“Tenant”).
RECITALS
A. Lessor’s predecessor
in interest, Aetna Life Insurance Company, and Lessee entered into
that certain Lease Agreement dated September 13, 1996 (the
“Original Lease”) for certain premises located at 15279
Alton Parkway, Suite 100, Irvine, California 92618 (the
“Existing Premises”), which are located in the
industrial complex commonly known as Alton Plaza Industrial Park
(the “Park”). The Existing Premises contain
approximately 13,448 square feet. Landlord and Tenant entered into
that certain First Amendment to Lease dated as of June 27,
2001 (the “First Amendment”), that certain Second
Amendment to Lease dated as of February 13, 2002 (the
“Second Amendment”), that certain Third Amendment to
lease dated as of August 12, 2004 (the “Third
Amendment”), that certain Addendum to Third Amendment to
Lease dated as of September 15, 2004 (the “Third
Addendum”), and that certain Fourth Amendment to Lease dated
as of August 31, 2005 (the “Fourth
Amendment”).
B. Pursuant to the Third
Amendment, the New Premises (located in the building commonly known
as 15295 Alton Parkway, as more specifically described in the Third
Amendment) were added to the Existing Premises. The Existing
Premises and the New Premises are hereinafter referred to
collectively as the “Original Premises”. The New
Expiration Date for the Original Premises is October 31,
2009.
C. Pursuant to the Fourth
Amendment, the 15273 Premises (located in the building commonly
known as 15273 Alton Parkway, as more specifically described in the
Fourth Amendment) were added to the Original Premises. The 15273
Premises Expiration Date for the 15273 Premises is March 31,
2016. The Original Premises and the 15273 Premises are hereinafter
referred to collectively as the “Current
Premises”.
D. The Original Lease as
amended by the First Amendment, the Second Amendment, the Third
Amendment, the Third Addendum and the Fourth Amendment is
hereinafter referred to as the “Lease”.
E. Landlord and Tenant
presently desire to amend the Lease to, inter alia, provide for the
addition of certain additional premises to the Lease.
NOW, THEREFORE, in
consideration of the mutual covenants and conditions contained
herein and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
1. Definitions .
Unless otherwise specifically set forth herein, all capitalized
terms used herein shall have the same meanings as set forth in the
Lease.
2. Addition of the 15285
Premises . The increment of space located at 15285 Alton
Parkway, commonly known as Suite 100 and labeled “15285
Premises” on the attached Exhibit A-5 shall be added to the
Premises covered by the Lease as provided herein. Landlord and
Tenant agree that initially for the purpose of the Lease and this
Amendment, the 15285 Premises shall be deemed to contain
approximately 8,181 square feet of space. The term of the Lease
with respect to the 15285 Premises shall commence on the 15285
Commencement Date (as defined below). As used herein, the
“15285 Commencement Date” shall mean December 12,
2007; provided, however, that if Landlord does not regain
possession of the 15285 Premises from the Prior Tenant (as defined
below) by October 1, 2007, then the 15285 Commencement Date
shall be the date which is seventy-three (73) days after
Landlord regains possession of the 15285 Premises from Prior
Tenant. Landlord shall tender possession of the 15285 Premises to
Tenant following Substantial Completion of the 15285 Work (as
defined below). The 15285 Premises shall become part of the
“Premises” on the 15285 Commencement Date and shall
remain a portion of the “Premises” throughout the 15285
Term (as defined below). As of the 15285 Commencement Date, the
Basic Lease Information Page of the Lease shall be modified to
provide that the “Premises” consists of approximately
52,920 square feet (the combined 15285 Premises and the Current
Premises). The parties hereto acknowledge that the 15285 Premises
are currently occupied by a third party (“Prior
Tenant”) and that the lease with respect to the 15285
Premises is scheduled to expire on September 30, 2007.
Landlord agrees to use diligent and commercially reasonable efforts
to cause the current occupant of the 15285 Premises to vacate its
premises on or before September 30, 2007. If for any reason
Landlord cannot or does not deliver possession of the 15285
Premises to Tenant on or before September 30, 2007, the 15285
Commencement Date shall be extended by one day for each day beyond
September 30, 2007 that Landlord fails to deliver possession
of the 15285 Premises to Tenant. If Landlord shall not have
tendered possession of the 15285 Premises to Tenant on or before
November 15, 2007, Tenant may, at Tenant’s option, by
notice in writing to Landlord terminate this Amendment and receive
a refund of the additional security deposit described in
Section 21, below and any prepaid rent. If Tenant terminates
this Amendment as provided in the preceding sentence, the parties
shall be discharged from all obligations under this Amendment,
except that Landlord shall return any money previously deposited
with Landlord by Tenant. Landlord shall commence the 15285 Work
promptly following the vacation of the 15285 Premises by the
current occupant thereof. Notwithstanding anything to the contrary
contained in this Section 2, if the Prior Tenant has not
vacated the 15285 Premises by December 31, 2007 (the
“Trigger Date”), Tenant shall have the right to
terminate this Amendment within ten (10) days following the
Trigger Date, time being of the essence herein. If Tenant timely
terminates this Amendment as provided in the preceding sentence,
the parties shall be discharged from all obligations under this
Amendment accruing on and after the effective date of such
termination, except that Landlord shall return any money previously
deposited with Landlord by Tenant in connection with this Amendment
including the additional Security Deposit referenced in
Section 21 below.
3. Planning Work
.
3.1 Architect . The
architect for the 15285 Work shall be H. Hendy Associates or such
other architect selected by Tenant and approved by Landlord (such
approval not to be unreasonably withheld) (the
“Architect”). The parties acknowledge that Tenant has
already engaged Architect to perform certain preliminary design
work in connection with the proposed 15285 Work (as defined in
Section 3.3 below), the cost of which shall be included in
Total Construction Costs (as defined below). Within three
(3) business days following the full execution of this
Amendment by Landlord and Tenant, Tenant shall meet with the
Architect to discuss its program and facility requirements (the
“Program”) for the 15285 Premises and the nature and
extent of all improvements
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that Tenant proposes to install in the
15285 Premises and at such meeting, shall provide the Architect
with all necessary data and information requested by the Architect
to prepare initial Program documents and then space plans therefor
as required by this Section 3.
3.2 Preparation and
Delivery of 15285 Space Plan . On or before September 7,
2007, Tenant shall cause the Architect to deliver to Landlord a
pricing plan prepared by the Architect depicting improvements to be
installed in the 15285 Premises sufficient for preliminary pricing
(the “15285 Space Plan”). On or before the expiration
of ten (10) business days from its receipt of the 15285 Space
Plan, Landlord shall deliver to Tenant (i) a preliminary cost
estimate to complete the work depicted in the 15285 Space Plan (the
“15285 Budget”), (ii) a preliminary project
schedule (the “15285 Project Schedule”), and
(iii) the Contractor’s general conditions and fee bid as
described in Section 4.1 below. Tenant shall notify Landlord
whether it approves of the scope of the 15285 Work outlined in the
submitted 15285 Budget and Project Schedule within five
(5) business days after its receipt thereof. If Tenant
disapproves of the scope of the 15285 Work outlined in the
submitted 15285 Budget and/or Project Schedule within such five
(5)-business day period, then Tenant shall notify Landlord thereof
specifying in reasonable detail the reasons for such disapproval,
in which case Landlord shall within three (3) business days
after such notice or such longer period as reasonably necessary to
revise the scope of work, revise such 15285 Budget and/or Project
Schedule, as the case may be, in accordance with Tenant’s
objections and submit the revised 15285 Budget and/or Project
Schedule, as the case may be, to Tenant for its review and
approval. Tenant shall notify Landlord in writing whether it
approves of the scope of the 15285 Work outlined in the resubmitted
15285 Budget and/or Project Schedule, as the case may be, within
five (5) business days after its receipt thereof. This process
shall be repeated until the 15285 Budget and Project Schedule have
been finally approved by Tenant and Landlord. If Tenant fails to
notify Landlord that it disapproves of the initial 15285 Budget
and/or Project Schedule within five (5) business days (or, in
the case of a resubmitted 15285 Budget and/or Project Schedule
within five (5)business days after the submission thereof), then
Tenant shall be deemed to have approved the 15285 Budget and/or
Project Schedule in question. Notwithstanding such approval, the
parties hereto acknowledge that the 15285 Budget and 15285 Project
Schedule may be subject to revision pending approval of the 15285
Working Drawings as described in Section 3.3 below.
3.3 15285 Working
Drawings . Within twenty (20) business days of the
approval of the 15285 Budget, 15285 Project Schedule and selection
of the Contractor (as defined below) for the 15285 Work, Landlord
shall cause the Architect to prepare final working drawings of all
improvements to be installed in the 15285 Premises based on the
approved 15285 Space Plan and deliver the same to Tenant for its
review and approval (which approval shall not be unreasonably
withheld, delayed or conditioned); such 20-business day period
shall be extended due to any delays in the Architect’s
preparation of same which is outside of Landlord’s control.
Such 15285 Working Drawings shall be prepared by the Architect (and
if necessary, engineers), whose fees shall be included in the Total
Construction Costs (as defined below). Tenant shall notify Landlord
whether it approves of the submitted 15285 Working Drawings within
two (2) business days after Landlord’s submission
thereof. If Tenant disapproves of such 15285 Working Drawings, then
Tenant shall notify Landlord thereof specifying in reasonable
detail the reasons for such disapproval, in which case Landlord
shall, within three (3) business days after such notice or
such longer period as reasonably necessary, revise such 15285
Working Drawings in accordance with Tenant’s objections and
submit the revised 15285 Working Drawings to Tenant for its review
and approval. Tenant shall notify Landlord in writing whether it
approves of the resubmitted 15285 Working Drawings within one
(1) business day after its receipt thereof. This process shall
be repeated until the working drawings have been finally approved
by Landlord and Tenant. If Tenant fails to notify Landlord
that
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it disapproves of the initial 15285
Working Drawings within three (3) business days (or, in the
case of resubmitted working drawings, within one (1) business
day) after the submission thereof, then Tenant shall be deemed to
have approved the working drawings in question. Any delay caused by
Tenant’s failure to respond within the time periods set forth
in this Section 3.3 as to such 15285 Working Drawings shall
constitute a Tenant Delay (defined below). As used herein,
“15285 Working Drawings” shall mean the final 15285
Working Drawings approved by Landlord and Tenant, as amended from
time to time by any changes thereto approved by Landlord and
Tenant, and “15285 Work” shall mean all improvements to
be constructed in the 15285 Premises in accordance with and as
indicated on the 15285 Working Drawings. The 15285 Work shall not
include any alterations, additions or improvements installed or
constructed by Tenant or any of Tenant’s trade fixtures,
equipment, furniture, furnishings, telephone equipment or other
personal property. Upon Tenant’s written request at the time
it seeks Landlord’s approval of the 15285 Working Drawings,
Landlord agrees to indicate in writing whether it will require any
elements of the 15285 Work to be removed from the 15285 Premises
upon the expiration or earlier termination of the Lease.
Landlord’s approval of the 15285 Working Drawings shall not
be a representation or warranty of Landlord that such drawings are
adequate for any use or comply with any law, but shall merely be
the consent of Landlord thereto. Tenant shall, at Landlord’s
request, sign the 15285 Working Drawings to evidence its review and
approval thereof. After the 15285 Working Drawings have been
approved, Landlord shall cause the 15285 Work to be performed in
accordance with the 15285 Working Drawings. Landlord shall cause
the Contractor to construct the 15285 Work to comply with the 15285
Working Drawings and Legal Requirements.
3.4 15285 Budget .
Upon approval of the 15285 Working Drawings by Tenant and Landlord,
and subject to the provisions of Section 3.3 above, Landlord
shall cause the Contractor to submit the 15285 Work for bid by all
necessary subcontractors in accordance with the provisions of
Section 4.2. Upon selection of the subcontractors, Landlord
shall provide to Tenant, prior to commencement of construction of
the 15285 Work, a complete budget (the “15285 Final
Budget”) showing all line items of the 15285 Work and the
schedule of distribution of the Construction Allowance (as defined
below) with respect to the 15285 Work. Tenant shall approve or
disapprove the 15285 Final Budget within five (5) business
days of receipt, such approval not to be unreasonably conditioned
or withheld. If Tenant fails to notify Landlord that it disapproves
of the 15285 Final Budget within such five (5) business-day
period, then Tenant shall be deemed to have approved the 15285
Final Budget.
4. Selection of General
Contractor/Subcontractors .
4.1 15285 Work .
Within ten (10) business days of receipt of the 15285 Space
Plan, Landlord shall seek competitive bids from DPR Construction,
Howard Building Corporation, ROEL Construction and Caliber
Construction, or such other qualified contractor as mutually agreed
to by Landlord and Tenant for the general conditions and fees each
would charge for the cost of constructing the 15285 Work. At the
completion of the bidding process, Landlord shall submit to Tenant
copies of all bids received. Landlord and Tenant shall select the
general contractor to perform the 15285 Work. Landlord and Tenant
shall make such selection based on the following criteria:
(i) lowest qualified general conditions and fee to complete
the 15285 Work, (ii) completion schedule, (iii) the
reputation and experience of the contractor’s specific team
assembled for this project, and in constructing the type of
improvements which Tenant contemplates installing in the 15285
Premises, (iv) Tenant’s prior experience with such
general contractor and providing first-class materials, and
(v) Landlord’s prior experience with such general
contractor in providing first class materials and/or service to the
Park. The contractor selected is hereinafter referred to as the
“Contractor”.
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4.2 Subcontractor Bids
. Upon approval of the 15285 Working Drawings, Landlord shall cause
the Contractor to submit the 15285 Working Drawings for competitive
bidding to qualified subcontractors approved by Landlord, Tenant
and Contractor based on the reputation and experience of each
subcontractor in constructing the type of improvements which Tenant
contemplates installing in the 15285 Premises, Tenant’s,
Landlord’s and the Contractor’s prior experience with
such subcontractor(s) in providing first class materials and its
experience in connection with the installation of the specified
items. At the completion of the bidding process, the Contractor
shall submit to Landlord and Tenant copies of all
subcontractors’ bids received
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