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EXHIBIT 10.02
THIRD AMENDMENT TO LEASE
I. PARTIES AND DATE.
This Third Amendment to Lease (the "Third Amendment") dated December
11, 1996, is by and between THE IRVINE COMPANY, a Michigan corporation
("Landlord") and INTERPORE INTERNATIONAL, a California corporation ("Tenant").
II. RECITALS.
On July 25, 1991, Landlord and Tenant entered into a space lease for
space located at 000 Xxxxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxx ("Premises"), which
lease was amended by Amendment No. 1 to Lease (the "First Amendment") dated
February 26, 1992, and by Second Amendment to Lease dated February 25, 1993 (as
amended, the "Lease").
Landlord and Tenant each desire to modify the lease to extend the
lease term, adjust the monthly rent and make such other modifications as are
set forth in "III. MODIFICATIONS" below.
III. MODIFICATIONS.
A. Basic Lease Provisions. The Basic Lease Provisions are hereby
amended as follows:
1. Item 1 is hereby deleted in its entirety and the following
shall be substituted in lieu thereof:
"1. Address of Landlord: Insignia Commercial Group, Inc.
Xxx Xxxxxxxxxx Xxxxx, Xxxxx X-000
Xxxxxx, XX 00000
with a copy of notices to: IRVINE INDUSTRIAL COMPANY
X.X. Xxx 0000
Xxxxxxx Xxxxx, XX 00000-0000
Attn: V.P., Industrial Operations"
2. Item 2 is hereby deleted in its entirety and the following
shall be substituted in lieu thereof:
"2. Address of tenant: Interpore International
000 Xxxxxxxxxx Xxxxx
Xxxxxx, XX 00000"
3. Item 4 is hereby deleted in its entirety and the following
shall be substituted in lieu thereof:
"Tenant's Contact: Xxxxx Xxxxxx, Telephone No. (000) 000-0000"
4. Item 6 is hereby amended by deleting the zip code of "92718"
therefrom and substituting "92618" in lieu thereof.
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EXHIBIT 10.02
5. Item 8 is hereby deleted in its entirety and the following
shall be substituted in lieu thereof:
"8. Term: The Term of this Lease shall expire at midnight on
January 31, 2003."
6. Effective as of February 1, 1998, Item 9 and Exhibit E to the
Lease shall be deleted in their entirety and the following shall be
substituted in lieu thereof:
"9. Monthly Rent: Thirty-Three Thousand One Hundred Forty-Seven
Dollars ($33,147.00) per month.
Adjustments to Monthly Rent: Commencing on February 1, 1999,
the Monthly Rent shall be Thirty-Four Thousand Four Hundred
Seventy-Two Dollars ($34,472.00) per month.
Commencing on February 1, 2000, the Monthly Rent shall be
Thirty-Five Thousand Eight Hundred Fifty-One Dollars
($35,851.00) per month.
Commencing on February 1, 2001, the Monthly Rent shall be
Thirty-Seven Thousand Two Hundred Eighty-Six Dollars
($37,286.00) per month.
Commencing on February 1, 2002, the Monthly Rent shall be
Thirty-Eight Thousand Seven Hundred Seventy-Seven Dollars
($38,777.00) per month."
7. Item 11 is hereby deleted in its entirety and the following
shall be substituted in lieu thereof:
"11. SECURITY DEPOSIT: $33,147.00"
8. Effective as of February 1, 1998, Item 17 shall be deleted in
its entirety and the following shall be substituted in lieu thereof:
"17. Parking Spaces: 125"
B. Security Deposit. On or before November 1, 1997, Tenant shall
deliver the sum of Sixteen Thousand Five Hundred Seventy-Three Dollars and
Fifty Cents ($16,573.50) to Landlord, which sum shall be added to the Security
Deposit presently being held by Landlord in accordance with Section 4.7 of the
Lease.
C. Lease Rider No.1. Lease Rider No. 1 entitled "Option to
Extend Term" is hereby deleted in its entirety and the following shall be
substituted in lieu thereof:
"Right to Extend this Lease. Provided that Tenant is not in
default under any provision of this Lease, either at the time
of exercise of the extension right granted herein or at the
time of the commencement of such extension, and provided
further that Tenant is occupying at least 70% if The square
footage of the Premises and/or has not assigned its interest in
this Lease, Tenant may extend the term of this Lease for one
(1) period of sixty (60) months. Tenant shall exercise its
right to extend the Term
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EXHIBIT 10.02
May 1, 2002, Tenant's irrevocable written notice of its
commitment to extend (the "Commitment Notice"). The Monthly
Rent payable under the lease during the extension of the term
shall be at the fair market rental, including subsequent
adjustments, for comparable industrial space being leased by
Landlord in the Project; provided that such rate shall in no
event be less than the rate payable by Tenant during the month
immediately preceding the commencement of the extension period.
In the event that the parties are not able to agree on the fair
market rental within one hundred twenty (120) days prior to the
expiration date of the Term, then either party may elect, by
written notice to the other party, to cause said rental,
including subsequent adjustments, to be determined by appraisal
as follows.
Within ten (10) days following receipt of such appraisal
election, the parties shall attempt to agree on an appraiser
to determine the fair market rental. If the parties are
unable to agree in that time, then each party shall designate
an appraiser within ten (10) days thereafter. Should either
party fail to so designate an appraiser within that time, then
the appraiser designated by the other party shall determine
the fair rental value. Should each of the parties timely
designate an appraiser, then the two appraisers so designated
shall appoint a third appraiser who shall, acting alone,
determine the fair rental value of the premises. Any
appraiser designated hereunder shall have an M.A.I.
certification with not less than five (5) years experience in
the valuation of commercial industrial buildings in Orange
County, California.
Within thirty (30) days following the selection of the
appraiser, such appraiser shall determine the fair market
rental value, including subsequent adjustments of the
premises. In determining such value, the appraiser shall
first consider rental comparables for the Project, provided
that if adequate comparables do not exist then the appraiser
may consider transactions involving similarly improved space
in the Irvine Spectrum area with appropriate adjustments for
differences in location and quality of project. In no event
shall the appraiser attribute factors for market tenant
improvement allowances or brokerage commissions to reduce said
fair market rental. The fees of the appraiser(s) shall be
shared equally by both parties.
Within twenty (20) days after the determination of the fair
market rental, Landlord shall prepare a reasonably appropriate
amendment to this Lease for the extension period and Tenant
shall execute and return same to Landlord within ten (10)
days. Should the fair market rental not be established by the
commencement of the extension period, then Tenant shall
continue paying rent at the rate in effect during the last
month of the initial Term, and a lump sum adjustment shall be
made promptly upon the determination of such new rental.
If Tenant fails to timely comply with any of the provisions of
this paragraph, Tenant's right to extend the term shall be
extinguished and the Lease shall automatically terminate as of
the expiration date of the Term, without any extension and
without any liability to Landlord. Any attempt to assign or
transfer any right or interest created by this paragraph shall
be void from its inception. Tenant shall have no other right
to extend the term beyond the single sixty (60) month
extension created
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EXHIBIT 10.02
extension of the Term, whether created by an amendment to this
Lease or by a holdover of the Premises by Tenant, or
otherwise, shall be deemed a part of, and not in addition to,
any duly exercised extension period permitted by this
paragraph."
D. Landlord's Maintenance of Building. The first sentence of
Section 9.1 of the Lease is hereby deleted in its entirety and the following
shall be substituted in lieu thereof:
"During the period commencing February 1, 1998 and ending
January 31, 2003, at Landlord's sole cost and expense,
Landlord will maintain, subject to the provisions of Article
XI and Article XII, the integrity of the structural portions
of the roof, exterior walls and foundation of the building."
E. Maintenance of Common Areas. The first sentence of Paragraph
20.33.4 of the Addendum to Lease is hereby deleted in its entirety and the
following shall be substituted in lieu thereof:
"Landlord shall maintain or cause to be maintained the Common
Areas in a first-class condition and in a manner comparable to
other industrial buildings owned by Landlord in the Irvine
Spectrum area, but the means chosen for operating and
maintaining the common areas shall be determined by Landlord
in its sole discretion."
IV. GENERAL
A. Effect of Amendments. The Lease shall remain in full force
and effect except to the extent that it is modified by this Third Amendment.
B. Entire Agreement. This Third Amendment embodies the
entire understanding between Landlord and Tenant with respect to the
modifications set forth in "III. MODIFICATIONS." above and can be changed only
by a writing signed by Landlord and Tenant.
C. Counterparts. If this Third Amendment is executed in
counterparts, each is hereby declared to be an original; all, however, shall
constitute but one and the same amendment. In any action or proceeding, any
photographic, photostatic, or other copy of this Third Amendment may be
introduced into evidence without foundation.
D. Defined Terms. All words commencing with initial capital
letters in this Third Amendment and defined in the Lease shall have the same
meaning in the Third Amendment as in the Lease, unless they are otherwise
defined in this Third Amendment.
E. Corporate and Partnership Authority. If Tenant is a
corporation or Partnership, or comprised of either or both of them, each
individual executing this Third Amendment for the corporation or Partnership
represents that he or she is duly authorized to execute and deliver this Third
Amendment on behalf of the corporation or partnership and that this Third
Amendment is binding upon the corporation or partnership in accordance with its
terms.
F. Attorneys' Fees. The provisions of the Lease respecting
payment of attorneys' fees shall also apply to this Third Amendment.
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EXHIBIT 10.02
Landlord and tenant executed this Third Amendment on the date set
forth in "I. PARTIES AND DATE." above.
LANDLORD: TENANT:
THE IRVINE COMPANY, INTERPORE INTERNATIONAL,
a Michigan corporation a California corporation
By: /s/ XXXXXXXX X. XXXXXX By: /s/ XXXXX XXXXXX
-------------------------------- --------------------------------
Xxxxxxxx X. Xxxxxx, President Xxxxx Xxxxxx
Irvine Industrial Company, Title: President
A division of The Irvine Company
By: /s/ XXXX X. XXX By: /s/ XXXXXXX XXXXXXXX
--------------------------------- --------------------------------
Xxxx X. Xxx Xxxxxxx Xxxxxxxx
Assistant Secretary Title: CFO
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