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Exhibit
10.53
FIRST
AMENDMENT
THIS FIRST AMENDMENT
(this “ Amendment ”) is made and entered into as
of February 8, 2008, by and between NORTHERN CALIFORNIA
INDUSTRIAL PORTFOLIO, INC., a Maryland corporation (“
Landlord ”), and KOSAN BIOSCIENCES INCORPORATED, a
Delaware corporation (“ Tenant
”).
RECITALS
| A. |
Landlord (as successor in interest to EOP-Industrial Portfolio,
L.L.C., a Delaware limited liability company, as successor in
interest to Spieker Properties, L.P., a California limited
partnership) and Tenant (as successor in interest to Aventis
Pharmaceuticals Inc., a Delaware corporation, formerly known as
Rhone-Poulenc Rorer Pharmaceuticals, Inc., a Delaware corporation)
are parties to that certain lease dated December 1, 1997 (the
“ Lease ”). Pursuant to the Lease, Landlord has
leased to Tenant space currently containing approximately
69,512 rentable square feet (the “ Premises
”) of the building commonly known as Bay Center Business Park
III located at 3825 Bay Center Place, Hayward, California 94545
(the “ Building ”). The Premises consist of
approximately 43,239 rentable square feet (the “ Improved
Premises ”) and approximately 26,273 rentable square feet
(the “ Unimproved Premises ”). |
| B. |
The Lease by its terms shall expire on February 29, 2008
(“ Prior Termination Date ”), and the parties
desire to extend the Term of the Lease, all on the following terms
and conditions. |
NOW, THEREFORE, in
consideration of the mutual covenants and agreements herein
contained and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Landlord and
Tenant agree as follows:
| 1. |
Extension. The Term of the Lease is hereby
extended for a period of sixty (60) months and shall expire on
February 28, 2013 (“ Extended Termination Date
”), unless sooner terminated in accordance with the terms of
the Lease. That portion of the Term commencing the day immediately
following the Prior Termination Date (“ Extension Date
”) and ending on the Extended Termination Date shall be
referred to herein as the “ Extended Term
”. |
| |
2.1 |
Base Rent for Improved Premises. As of the Extension
Date, the schedule of Base Rent payable with respect to the
Improved Premises during the Extended Term is the
following: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Period
|
|
Rentable
Square Footage |
|
Annual Rate Per
Square Foot |
|
Annual Base
Rent |
|
Monthly Base
Rent |
|
3/1/08 – 2/28/09
|
|
43,239 |
|
$ |
19.20 |
|
$ |
830,188.80 |
|
$ |
69,182.40 |
|
3/1/09 – 2/28/10
|
|
43,239 |
|
$ |
19.97 |
|
$ |
863,482.83 |
|
$ |
71,956.90 |
|
3/1/10 – 2/28/11
|
|
43,239 |
|
$ |
20.77 |
|
$ |
898,074.03 |
|
$ |
74,839.50 |
|
3/1/11 – 2/29/12
|
|
43,239 |
|
$ |
21.60 |
|
$ |
933,962.40 |
|
$ |
77,830.20 |
|
3/1/12 – 2/28/13
|
|
43,239 |
|
$ |
22.46 |
|
$ |
971,147.94 |
|
$ |
80,929.00 |
All such Base Rent shall be
payable by Tenant in accordance with the terms of the Lease, as
amended hereby.
| |
2.2 |
Base Rent for Unimproved Premises. As of the Extension
Date, the schedule of Base Rent payable with respect to the
Unimproved Premises during the Extended Term is the
following: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Period
|
|
Rentable
Square Footage |
|
Annual Rate Per
Square Foot |
|
Annual Base
Rent |
|
Monthly Base
Rent |
|
3/1/08 – 2/28/09
|
|
26,273 |
|
$ |
6.00 |
|
$ |
157,638.00 |
|
$ |
13,136.50 |
|
3/1/09 – 2/28/10
|
|
26,273 |
|
$ |
6.24 |
|
$ |
163,943.52 |
|
$ |
13,661.96 |
|
3/1/10 – 2/28/11
|
|
26,273 |
|
$ |
6.49 |
|
$ |
170,511.77 |
|
$ |
14,209.31 |
|
3/1/11 – 2/29/12
|
|
26,273 |
|
$ |
6.75 |
|
$ |
177,342.75 |
|
$ |
14,778.56 |
|
3/1/12 – 2/28/13
|
|
26,273 |
|
$ |
7.02 |
|
$ |
184,436.46 |
|
$ |
15,369.71 |
All such Base Rent shall be
payable by Tenant in accordance with the terms of the Lease, as
amended hereby.
| 3. |
Security Deposit. Tenant’s predecessor in
interest, Aventis Pharmaceuticals, Inc. (
“Aventis” ) is currently holding a security
deposit (the “Assignment Security Deposit ” )
from Tenant in the sum of Two Hundred Forty Thousand Dollars
($240,000.00) pursuant to the terms of that certain Assignment of
Lease dated as of June 21, 2002 by and between Tenant and
Aventis (the “Assignment ” ) and as further
confirmed in that certain Landlord Consent to Assignment and
Assumption of Lease dated June 20, 2002 by and between
Landlord’s predecessor in interest, Tenant and Aventis (the
“Landlord Consent ” ). Pursuant to the terms of
the Assignment and the Landlord Consent, in the event that Tenant
exercises its renewal option under Section 38.E. of the Lease,
the Assignment Security Deposit is to be deposited with Landlord as
a security deposit under the Lease. Tenant has properly exercised
its renewal option and shall cause Aventis to deliver the
Assignment Security Deposit to Landlord upon execution and delivery
of this Amendment to be held as a security deposit in the sum of
Two Hundred Forty Thousand Dollars ($240,000.00) under the Lease
(the “Security Deposit” ) pursuant to the terms
of Section 4 of that certain Landlord Consent to Assignment
and Assumption of Lease entered into between Landlord’s
predecessor in interest, Tenant and Tenant’s predecessor in
interest dated June 20, 2002. |
| 4. |
Operating Expenses. For the period commencing on
the Extension Date and ending on the Extended Termination Date,
Tenant shall pay for Tenant’s Proportionate Share of
Operating Expenses in accordance with the terms of the
Lease. |
| 5. |
Improvements to Premises. |
| |
5.1 |
Condition of Premises. Tenant is in possession of the
Premises and accepts the same “as is” without any
agreements, representations, understandings or obligations on the
part of Landlord to perform any alterations, repairs or
improvements. |
| |
5.2 |
Responsibility for Improvements to Premises. Any
construction, alterations or improvements to the Premises shall be
performed by Tenant at its sole cost and expense and shall be
governed in all respects by the provisions of Article 12 of the
Lease. |
| 6. |
Other Pertinent Provisions. Landlord and Tenant
agree that, effective as of the date of this Amendment, the Lease
shall be amended in the following additional respects: |
| |
6.1 |
Indemnification. The definition of
“Landlord’s Parties” set forth in Paragraph
8.B(6) of the Lease is hereby amended to mean and refer to
“Landlord, Landlord’s investment manager, and the
trustees, boards of directors, officers, general partners,
beneficiaries, stockholde |
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