ex10_2.htm


     

    
      
        

      


      EXHIBIT
10.2

      


      


      SECOND
AMENDMENT TO MASTER LEASE AGREEMENT

      


      THIS SECOND AMENDMENT TO MASTER LEASE
AGREEMENT (“Second
Amendment”) is
entered into as of April 8, 2008 between HCP SSF, LLC (formerly known as SLOUGH
SSF, LLC), a Delaware limited liability company (“Landlord”), and GENENTECH, INC., a
Delaware corporation (“Tenant”), with reference to the
following facts:

      


      A. Landlord
and Tenant are parties to a Master Lease Agreement dated as of November 1,
2004 (the "Master
Lease Agreement"), as amended by a First
Amendment dated as of October 2, 2006 (the "First
Amendment")
(collectively, the “Agreement”) which provides for, among
other things, the construction of eight office and/or research and development
buildings at the Britannia East Grand Business Park (the “Center”), a stand-alone child care
center in the northwestern corner of the Center (the “Child
Care Center”),
and two parking structures.  Terms used as defined terms in this
Second Amendment but not expressly defined herein shall have the meanings
assigned to such terms in the Agreement.

      


      B. As
a result of certain elections made by Tenant under the Agreement, Tenant has
become responsible for complying with the requirements under the Development
Agreement to which the Center is subject (as amended from time to time, the
“Development
Agreement”)
relating to the construction of the Child Care Center.  In connection
therewith, Tenant has requested that Landlord cooperate with Tenant in seeking
the City of South San Francisco's ("City's") approval to defer the
requirement that the Child Care Center be constructed at the Center, and
Landlord is willing to do so, all as more particularly set forth in this Second
Amendment.

      NOW,
THEREFORE, in consideration of the mutual obligations set forth herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Landlord and Tenant agree as follows:

      


      1.           Child Care
Center.  Landlord agrees to fully cooperate with Tenant in
seeking the City's approval to allow Tenant, at its election, to defer the
requirement that the Child Care Center be constructed at the
Center.  Such cooperation shall be at no cost or expense to Landlord;
however, Landlord shall not accept conditions of approval of such deferral
without Tenant’s prior approval.  Landlord and Tenant shall each
include the other (or at least offer the other a reasonable opportunity to
participate) in any discussions and hearings with the City regarding such
deferral.  In the event that the City approves such deferral, so long
as such deferral shall remain in effect, Tenant’s obligation to construct the
Child Care Center in compliance with the requirements of the Development
Agreement shall likewise be deferred by Landlord.  If the City fails
or refuses to grant such deferral, or if the City defers such requirement and
such deferral shall thereafter cease during the term of the Agreement for any
reason (including, but not limited to, any such cessation by reason of the
expiration or termination of Tenant’s occupancy of one or more Buildings in the
Center, for which purpose Tenant’s obligations under this Paragraph 1 shall
survive any termination of the Agreement), or if Tenant otherwise elects
(notwithstanding such deferral) to proceed with constructing the Child Care
Center, then Tenant at Tenant’s sole expense shall either fulfill the City's
requirements (as set forth in the Development Agreement)


      
        
           


        

        
           


          
            

          

        

        
           


        

      


      for
construction of a Child Care Center or secure the City's approval of an
alternative method of satisfying the requirement that the Child Care Center be
located at the Center.  If the City grants the deferral, Tenant may
elect to use the land designated for the Child Care Center for any purpose which
is compatible with the other uses within the Center, such as, without
limitation, landscaping, recreational fields, or other soft feature
improvements, or may elect not to use the land (in which event Tenant shall
still be responsible for the cost of providing, at a minimum, landscaping
meeting the City’s minimum requirements for otherwise unused land within the
Center).  Provided that Tenant has obtained all required City approvals
(including, with Landlord’s reasonable cooperation at no expense to Landlord,
any required amendment of the Development Agreement), Tenant may, at its sole
discretion from time to time, elect to improve or modify the land designated for
the Child Care Center with such uses, in which case, subject to the proviso set
forth below, Landlord shall install such improvements at Tenant's cost and as
directed by Tenant, in accordance with plans prepared by or at the direction of
Tenant and mutually approved by Landlord and Tenant (such approval not to be
unreasonably withheld, delayed or conditioned); provided, however, that if
Tenant elects in accordance with the provisions of this paragraph to construct
and use a building on the land designated for the Child Care Center during the
term of the Agreement (which building shall then be leased to Tenant under the
Vacant Land/Child Care Center Lease as contemplated in the Agreement) or to
construct other recreational or soft-feature improvements, then Landlord’s
construction obligations under this Paragraph shall be limited to constructing
(at Tenant’s expense) the underground and in-ground improvements necessary to
support Tenant's construction of such building or soft-feature improvements, and
Tenant shall be responsible for constructing the above-ground elements of such
building or soft-feature improvements in accordance with the terms of the
Agreement.  For clarity, nothing herein shall preclude Tenant from
exercising its rights under Section 4(c) of the Master Lease Agreement to seek
the City's approval of an alternative method of satisfying the City's
requirement for a Child Care Center, at no cost or expense to
Landlord.

      


      2.           Brokers.  Each
party represents and warrants that no broker represented such party or otherwise
participated in the negotiation or consummation of this Second Amendment, and
each party agrees to indemnify, defend and hold the other party harmless against
any liability, cost or expense, including, without limitation, reasonable
attorneys’ fees, arising out of any claims for brokerage commissions or other
similar compensation in connection with any conversations, prior negotiations or
other dealings by the indemnifying party with any broker.

      


      3.           Notice.  Any
notice or communication required or permitted under the Agreement shall be given
in writing, sent by (a) personal delivery, or (b) expedited delivery service
with proof of delivery, or (c) United States mail, postage prepaid, certified
mail, return receipt requested, or (d) facsimile, addressed as
follows:

      


      


      To
Landlord:        HCP SSF,
LLC

      c/o
HCP Life Science Estates

      400
Oyster Point Blvd., Suite 409

      South
San Francisco, CA  94080

      Attn:  Jon
Bergschneider

      Fax:  (650)
875-1003

       

      
        
           


        

        
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      with
a copy to:     HCP SSF, LLC

      c/o
HCP, Inc.

      3760
Kilroy Airport Way, Suite 300

      Long
Beach, CA  90806-2473

      Attn:  Legal
Department

      Fax:  (562)
733-5200

      


      and
a copy to:      Folger Levin & Kahn
LLP

      Embarcadero
Center West

      275
Battery Street, 23rd Floor

      San
Francisco, CA  94111

      Attn:  Donald
E. Kelley, Jr.

      Fax:  (415)
986-2827

      


      To
Tenant:           Corporate
Secretary

      Genentech,
Inc.

      1
DNA Way, Mail Stop 49

      South
San Francisco, CA  94080

      Fax:  (650)
467-9146

      


      with
a copy to:     Corporate Real Estate

      Genentech,
Inc.

      1
DNA Way, Mail Stop 256A

      South
San Francisco, CA  94080

      Fax:  (650)
467-3412

      


      


      and
a copy to:      Meg Fitzgerald, Esq.

      Genentech,
Inc. Legal Department

      1
DNA Way, Mail Stop 49

      South
San Francisco, CA  94080

      Fax:  (650)
952-9881

      


      or
to such other address or to the attention of such other person as hereafter
shall be designated in writing by the applicable party sent in accordance
herewith.  Any such notice or communication shall be deemed to have
been given and received either at the time of personal delivery or, in the case
of delivery service or mail, as of the date of first attempted delivery at the
address and in the manner provided herein, or in the case of facsimile, upon
mechanical confirmation of transmission during normal business hours at the
place of receipt (or in the case of transmission outside normal business hours,
at the commencement of the next business day commencing after the time of such
transmission).

      


      4.           Entire Agreement;
Modification.  This Second Amendment constitutes the entire
agreement between the parties relating to the subject matter
hereof.  This Second Amendment may not be modified orally or in any
manner other than by an agreement in writing signed by the parties hereto or
their respective successors in interest.  Except as modified by the
terms of this Second Amendment, the obligations of the parties under, and the
provisions of, the Agreement, shall remain unchanged, in full force and effect,
and enforceable in accordance with its terms.


      
        
           


        

        
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      5.           Counterparts.  This
Second Amendment may be executed in multiple counterparts, and by the respective
parties hereto in separate counterparts, each of which when so executed and
delivered shall be deemed to be one and the same instrument with the same
signatures as if all parties to this Second Amendment had signed the same
signature page.  Signature pages may be detached from separate
counterparts and attached to a single copy of this Second Amendment to form one
original document (or multiple original counterparts of this document with full
signatures).

       

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      IN WITNESS WHEREOF, the parties hereto
have executed this Second Amendment as of the date first set forth
above.

       

      
        	
                “Landlord”

                 

                HCP
      SSF, LLC (formerly known as Slough

                SSF,
      LLC), a Delaware limited liability

                company

                 

                By:     HCP
      Estates USA Inc., a Delaware

                         
       corporation, Its Manager

                 

                 

                 

                   
      By:         /s/ JONATHAN M.
      BERGSCHNEIDER

                   
      Name:    Jonathan M. Bergschneider

                   
      Its:         Senior Vice
      President

                 

              	
                “Tenant”

                 

                GENENTECH,
      INC.,

                a
      Delaware corporation

                 

                 

                 

                By:         
      /s/ THOMAS G. LYON

                Name:   
      Thomas G. Lyon

                Its:         
      VP – Business Services

                 

                 

              


      

       


      
        
           


        

        
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