EXHIBIT 10.1
SUBLEASE AGREEMENT
THIS SUBLEASE AGREEMENT (this "Sublease") is entered into by
and between XXXXXXX PHARMACEUTICAL, INC., a Delaware corporation ("Sublessor"),
and AXYS PHARMACEUTICALS, INC., a Delaware corporation ("Sublessee"), as of
September 11, 2003. Sublessor and Sublessee hereby agree as follows:
1. DEFINED TERMS. The following terms shall have the following
meanings:
ADDITIONAL RENT has the meaning set forth in Section 6(b) of
this Sublease.
BASE RENT means the following monthly triple net base rental
rates per square foot of rentable square feet ("RSF"):
MONTHLY BASE MONTHLY BASE
PERIOD RENT/RSF RENT
------ -------- ----
Months 1-4 $ 0.00 $ 0.00
Months 5-16 $ 2.60 $ 43,739.80
Months 17-28 $ 2.68 $ 45,085.64
Months 29-40 $ 2.76 $ 46,431.48
BUILDING means the office building located at 000 Xxxxxxx
Xxxxxxxxx, Xxxxx Xxx Xxxxxxxxx, Xxxxxxxxxx.
COMMENCEMENT DATE means the later to occurs of (i) the date on
which this Sublease has been approved in writing by Landlord,
and (ii) September 1, 2003.
ENVIRONMENTAL LAWS has the meaning set forth in the Lease.
EQUIPMENT has the meaning set forth in Section 3(a) of this
Sublease.
EXPIRATION DATE means the earlier of (i) the date the Lease
terminates, or (ii) December 31, 2006.
EXTENSION TERM has the meaning set forth in Section 10 of this
Sublease.
GUARANTY means that certain Sublease Guaranty to be executed
by APPLERA CORPORATION in substantially the form attached
hereto as Exhibit C.
HAZARDOUS MATERIALS has the meaning set forth in the Lease.
INITIAL TERM means the period of time beginning on the
Commencement Date and ending on the Expiration Date.
ISSUER has the meaning set forth in Section 7(b) of this
Sublease.
LANDLORD means Gateway Boulevard Associates, a California
limited liability company, and its successors and assigns.
LANDLORD'S ADDRESS means c/o The Raiser Organization, 000
Xxxxx Xxxxxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx
00000, Attention: Xxxxxxx X. Xxxxxx.
LEASE means that certain Lease Agreement dated November 7,
1997, between HMS Gateway Office, L.P., a Delaware limited
partnership, the predecessor-in-interest of Landlord, as
landlord, and Sublessor, as tenant; as amended by that certain
First Amendment to Lease Agreement dated as of November 10,
1998; that certain Second Amendment to Lease Agreement dated
as of May 19, 2000; and that certain Amended and Restated
Agreement Concerning Assignment and Sublease Profits dated as
of May 23, 2002; a copy of the Lease is attached hereto as
Exhibit A.
PERMITTED USES means all uses permitted under the Lease.
PREMISES means that portion of the Building demised to
Sublessor under the Lease consisting of approximately sixteen
thousand eight hundred twenty-three (16,823) square feet, as
depicted on Exhibit B-1 attached hereto.
PRO RATA SHARE means the percentage obtained by dividing the
RSF subleased by Sublessee by the corresponding RSF of the
Building and the Project, as set forth in the Lease.
PROJECT means the project containing approximately 7.5 acres
of land commonly known as Lot 2B of the Gateway Center and
referred to as the Gateway Technology Center, together with
the land and improvements on which the Project is situated and
all common areas.
ROFR SPACE has the meaning set forth in Section 18 of this
Sublease.
RENEWAL NOTICE has the meaning set forth in Section 10 of this
Sublease.
SUBLESSEE means Axys Pharmaceuticals, Inc., a Delaware
corporation.
SUBLESSEE'S ADDRESS means 000 Xxxxxxx Xxx, Xxxxx Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000.
SUBLESSEE'S PROPERTY has the meaning set forth in Section
11(c) of this Sublease.
SUBLESSOR means Xxxxxxx Pharmaceutical, Inc., a Delaware
corporation.
SUBLESSOR'S ADDRESS means 0000 Xxxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxxx, Xxxxxxxxxx 00000.
TERM has the meaning set forth in Section 10 of this Sublease.
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2. SUBLEASE. Sublessor hereby subleases to Sublessee, and
Sublessee hereby subleases from Sublessor, the Premises for the Term, upon all
of the terms, covenants and conditions contained herein.
3. CONDITION OF PREMISES.
(a) Sublessor Removal of Personal Property. Sublessor
agrees that prior to the Commencement Date, Sublessor shall remove, or cause to
be removed, from the Premises all of Sublessor's personal property, except the
equipment and furnishings set forth on Schedule I attached hereto (collectively,
the "Equipment"). Sublessee shall, at its expense, maintain each item of the
Equipment in good working condition, normal wear and tear excepted. Upon the
expiration of this Sublease, Sublessee shall surrender the Equipment to
Sublessor in the same condition as when delivered to Sublessee, reasonable wear
and tear excepted and in compliance with any decommissioning requirements of
applicable law. All additions, attachments, alterations and repairs made or
placed upon any of the Equipment shall become a part of the Equipment and shall
become the property of Sublessor.
(b) "As is" Condition of Premises; Alterations. Except as
set forth in Section 3(a) above, Sublessee shall accept possession of the
Premises in their present "as is" condition, without representation or warranty
as to their condition or suitability for Sublessee's intended use, and with no
obligation on the part of Sublessor to make any alterations or modifications to
the Premises or any area outside the Premises for the benefit of Sublessee
except that Sublessor warrants that the Building systems and subsystems are in
good working order as of the Commencement Date and that all improvements in the
Premises constructed by Sublessor were constructed in material compliance with
then applicable laws. Without limiting the generality of the foregoing,
Sublessor makes no representation or warranty, express or implied, as to the
fitness, suitability or operating condition of any aspect or item of the
Equipment. Sublessee acknowledges that it has received a copy of a report
prepared by Xxxx Xxxxx dated April 1, 2003, which discloses surface water
intrusion in buildings of the Project other than the Building. Any alterations
or improvements desired by Sublessee or required by any and all applicable laws
to the Premises shall be made by Sublessee at its sole cost and expense using an
architect and general contractor approved by Landlord and Sublessor, provided
that Sublessor shall not unreasonably withhold its approval thereof. Plans and
specifications for Sublessee's alterations and improvements shall be subject to
the prior written approval of Landlord and Sublessor as provided in the Lease
and herein, provided that Sublessor shall not unreasonably withhold such
consent. Sublessee shall, at Sublessee's sole cost and expense, comply promptly
with all applicable statutes, ordinances, rules, regulations, orders,
restrictions of record, and requirements in effect during the Term or any part
of the Term hereof regulating Sublessee's particular use of the Premises. Upon
termination of this Sublease, Sublessee shall be responsible for the cost of
removing any alterations which were installed for or by Sublessee in the
Premises, except that Sublessee shall not be required to remove any alterations
if under the applicable provisions of the Lease and the Sublease such
alterations may remain in the Premises upon the termination of the Sublease.
Sublessor shall reimburse Sublessee for Sublessee's costs of constructing tenant
improvements with respect to approximately one thousand (1,000) RSF of office
space, as depicted on Exhibit B-2 attached hereto (the "Office Improvements"),
provided that (i) such reimbursement shall not exceed thirty thousand dollars
($30,000); and (ii) such reimbursement shall not be payable by Sublessor until
Sublessee provides to Sublessor
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(A) satisfactory evidence of each of completion of the Office Improvements,
which shall include, without limitation, a certificate of occupancy from the
applicable governmental authority and a certificate of completion from the
constructor, and Sublessee's payment of all contractors and suppliers in
connection therewith and (B) lien releases from each contractor and supplier
that provided services or materials in connection with the Office Improvements.
4. CONDITIONS.
(a) This Sublease is conditioned upon the delivery to
Sublessor of (i) a fully executed original of this Sublease, (ii) a
fully-executed Guaranty substantially in the form of Exhibit C attached hereto
and (iii) the receipt of Landlord's written consent to this Sublease not later
than thirty (30) business days following delivery to Landlord of a copy hereof
executed by Sublessee and Sublessor, which consent Landlord may give or withhold
pursuant to Section 23 of the Lease.
(b) In the event the condition expressed in clause (iii)
of Section 4(a) above is not timely satisfied, upon three (3) business days
prior written notice, Sublessor or Sublessee may terminate this Sublease by
giving written notice of termination to the other party at any time prior to the
satisfaction of such condition. In the event this Sublease is terminated due to
the nonsatisfaction of the foregoing condition, neither Sublessor nor Sublessee
shall have any further rights or obligations hereunder. Sublessee and Sublessor
each agrees to supply information and/or execute and acknowledge further
documents in connection with this Sublease which are reasonably required by
Landlord in connection with Landlord's review of this Sublease and the
satisfaction of the condition expressed in clause (iii) of Section 4(a) above.
5. PROVISIONS CONSTITUTING SUBLEASE.
(a) Relationship Between Sublessee and Landlord. This
Sublease is subject to all of the terms and conditions of the Lease. Sublessee
hereby assumes and agrees to perform the obligations of Sublessor as Tenant
under the Lease to the extent such terms and conditions are applicable to the
Premises subleased pursuant to this Sublease. Sublessee shall not commit or
permit to be committed on the Premises any act or omission which shall violate
any term, covenant or condition of the Lease.
(b) Relationship Between Sublessee and Sublessor. Except
as otherwise provided herein, all of the terms and conditions contained in the
Lease are incorporated herein as terms and conditions of this Sublease with each
reference therein to "Landlord," "Tenant," the "Lease" and the "Premises," being
deemed to refer to Sublessor, Sublessee, this Sublease, and the Premises,
respectively), except for the following provisions of the Lease, which are not
incorporated into this Sublease: Sections 3, 4(a), 4(d), 7, 8(c), 8(d), 10,
16(b), 38, 49, 50, 51, 52 and 53, and Exhibits X, X, X, X, X, X, X and J.
Notwithstanding anything to the contrary contained herein, with respect to any
specific obligation in the Lease required to be performed by Landlord, to the
extent Landlord has performed such obligation Sublessor shall not be required to
do so.
(c) Notices. All notices or demands of any kind required
or desired to be given by Sublessor or Sublessee to the other hereunder shall be
in writing and shall be deemed
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delivered upon receipt if sent by United States mail, certified postage prepaid,
return receipt requested, or by private overnight courier, addressed to the
Sublessor or Sublessee respectively at the addresses set forth in Section 1, or
at such other addresses as the parties may specify by notice in accordance with
this section. All rent and other payments due under this Sublease shall be made
by Sublessee to Sublessor at the same address. Sublessor and Sublessee shall
each deliver to the other a copy of every notice received from Landlord
affecting or relating to the Premises, or affecting or relating to the rights
and/or obligations hereunder or under the Lease, within five (5) days following
receipt thereof. Notwithstanding anything to the contrary contained in this
Sublease, the time limits specified in the Lease for the giving of notice,
making of demands, performing any act, condition or covenant (including cure of
any breach) or the exercise of any right, remedy or option, are hereby decreased
or increased for purposes of this Sublease, by shortening or lengthening the
same, as the case may be, in each instance by three (3) days, when necessary to
enable Sublessor to give notice, make demands, perform any act, correct any
failure, or otherwise to secure compliance and perform under the Lease in a
timely manner.
(d) Services. Notwithstanding Section 5(b) hereof,
Sublessor shall have no obligation to provide any of the services to be provided
by Landlord under the Lease, or any other services, and Sublessor's sole
obligation with respect thereto shall be to use commercially reasonable efforts
to obtain Landlord's compliance with the Lease upon Sublessee's written request.
Without limiting the generality of the foregoing sentence, Sublessor shall have
no obligation to Sublessee to provide or maintain back-up generators for power,
security services or life safety systems; provided, however, that if Sublessee
desires to obtain Sublessor's services with respect to any such Building
management systems or other Building systems or subsystems, Sublessor and
Sublessee shall enter into a Facilities Services Agreement substantially in the
form of Exhibit D attached hereto. To the extent permitted by law and by
Landlord, Sublessee shall have the right to request all services directly from
Landlord at Sublessee's sole cost and expense. Sublessee shall promptly notify
Sublessor in writing of all such requests for services. Sublessee shall have
reasonable access to all common systems used between Sublessor and Sublessee for
purposes of inspection, control and maintenance, and Sublessor shall make
available to Sublessee restricted access to such systems.
(e) Consents. In any circumstance where the Lease
requires that Landlord's approval or consent be obtained, Sublessee shall be
required to obtain the written approval or consent of Sublessor as well. Where
the Lease specifies that Landlord shall not unreasonably withhold its approval
or consent, Sublessor shall not unreasonably withhold its approval or consent as
well.
(f) Signage. Subject to the provisions of the Lease,
Sublessee shall have the right to place its name and logo on the applicable
campus monument signage made available to Sublessor under Section 18 of the
Lease, provided that all costs for production, installation and maintenance of
such signage shall be borne solely by Sublessee.
(g) Parking. Subject to the provisions of the Lease,
Sublessee shall have the right to use forty-five (45) non-exclusive and
undesignated parking spaces in the Project's parking areas.
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6. RENT.
(a) Base Rent. Sublessee shall pay to Sublessor an amount
equal to the monthly installment of Base Rent for the fifth full month of the
Term (Forty-Three Thousand Seven Hundred Thirty-Nine and Eighty One-Hundredths
Dollars ($43,739.80)) upon execution of this Sublease. Commencing on the
Commencement Date, Sublessee shall pay Base Rent to Sublessor as rent for the
Premises, in monthly installments in advance, and thereafter on the first day of
each calendar month of the Term, without deduction, offset, prior notice or
demand, in lawful money of the United States; provided, however, that Sublessee
shall be entitled to four (4) month's free Base Rent with respect to the first
four (4) months following the Commencement Date, as indicated in the chart
contained in the definition of Base Rent in Section 1 above. The abatement of
the first four months of Base Rent, as provided in the foregoing sentence, does
not affect Sublessee's obligation to pay Additional Rent with respect to such
period. In addition, in the event of any default by Sublessee hereunder, in
addition to any other remedies available to Sublessor at law or in equity or
under this Sublease, upon demand of Sublessor, Sublessee shall pay to Sublessor
an amount equal to the amount of the first four months of Base Rent that was
abated pursuant to this Section 6(a). If the first day for which the monthly
installment of Base Rent is payable is not the first day of a calendar month, or
if the last day of the Term is not the last day of a calendar month, the monthly
installment of Base Rent shall be prorated for the fractional month(s). In the
case of a proration at the beginning of the Term, Sublessee shall pay the
proration for such partial month upon the due date for Base Rent for the second
month of the Term. Sublessee shall pay the proration for the last month of the
Term when Base Rent for such month is due.
(b) Additional Rent. Sublessee acknowledges that
Sublessor is obligated to pay to Landlord all amounts provided for in Section
4(b) of the Lease ("Additional Rent"). Sublessee agrees to pay to Sublessor as
Additional Rent hereunder (i) its Pro Rata Share of all such Additional Rent
charged to Sublessor by Landlord under the Lease, provided however, that (A)
with respect to such Additional Rent payable in connection with HVAC,
electricity, water and gas costs, Sublessee shall pay to Sublessor seventy
percent (70%) of such Additional Rent allocable to the Building, and (B) with
respect to all other components of such Additional Rent, Sublessee's Pro Rata
Share shall be thirty-four percent (34%), and (ii) any and all other costs and
expenses Sublessor incurs, as a result of Sublessee's use of Building services
that are in excess of Sublessee's Pro Rata Share of those services provided to
Sublessor by Landlord under the Lease, and (iii) any other costs and expenses
incurred by Sublessor under the Lease, as a result of or arising out of
Sublessee's use and occupancy of the Premises, regardless of whether such excess
costs arise under the Lease or otherwise. Sublessee shall pay such Additional
Rent in accordance with the terms for payment set forth in the Lease. Sublessee
shall have the right to verify Additional Rent through periodic review of
Sublessor's records in accordance with the terms and conditions of Paragraph
4(c) of the Lease with each reference therein to "Landlord," "Tenant," and
"Lease" being deemed to refer to Sublessor, Sublessee and this Sublease,
respectively.
(c) Late Charge. The parties hereby expressly agree that
in the event Sublessee shall fail to make payment of any installment of Base
Rent or any other sums due hereunder within five (5) business days of the date
that such amounts are due, the provisions of Paragraph 6 of the Lease shall
apply.
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7. GUARANTY. Concurrently with the execution of this Sublease,
Sublessee shall cause APPLERA CORPORATION to execute and deliver to Sublessor
the Guaranty. Notwithstanding anything to the contrary contained herein, the
effectiveness of this Sublease is expressly conditioned upon Sublessor's receipt
of the fully executed Guaranty contemporaneously with Sublessee's delivery of
the executed Sublease to Sublessor.
8. USE OF PREMISES. Sublessee shall use the Premises for the
Permitted Uses and for no other purpose without the prior written consent of
Sublessor and, if required by the Lease, Landlord. Notwithstanding any other
provision hereof, and subject to any limitations in the Lease, Sublessee shall
have access to the Premises on a seven day a week, twenty-four hour a day basis.
Sublessee's use of a vivarium in the Premises (i) shall not include primates,
canines, felines or domestic livestock and (ii) shall be at all times in
compliance with applicable law.
9. TERM.
(a) Initial Term. The Initial Term of this Sublease shall
be for a period commencing on the Commencement Date and ending on the Expiration
Date, unless terminated sooner by termination of the Lease for any reason or
otherwise pursuant to this Sublease.
(b) Delay in Delivery. In the event Sublessor is unable
to deliver possession of the Premises on September 1, 2003, Sublessor shall not
be subject to any liability for any loss or damage to Sublessee, nor shall such
failure affect the validity of this Sublease or Sublessee's obligations
hereunder or extend the Term hereof. If Sublessor does not deliver possession of
the Premises by December 1, 2003, Sublessee shall have the right to terminate
this Sublease without further obligation or liability by providing written
notice of termination to Sublessor within five (5) business days thereafter.
10. OPTION TO EXTEND INITIAL TERM. Subject to the terms and
conditions of this Section 10, Sublessee shall have the right to extend the
Initial Term of this Sublease for the period from the Expiration Date through
November 13, 2010 (the "Extension Term") in accordance with the terms and
conditions of this Section 10. The Extension Term, together with the Initial
Term shall be referred to as the "Term" if:
(a) Sublessor receives notice of exercise ("Renewal
Notice") not later than the date that is one hundred eighty (180) days prior to
the Expiration Date of the Sublease;
(b) Sublessee is not in default under this Sublease
beyond any applicable cure periods at the time that Sublessee delivers its
Renewal Notice or at the commencement of the Extension Term; and
(c) This Sublease has not been assigned by Sublessee and
the Premises has not been further sublet by Sublessee prior to the date upon
which Sublessee delivers its Renewal Notice.
The initial Base Rent for the Extension Term shall be Forty-Seven Thousand Eight
Hundred Twenty-Four and Forty-Two One-Hundredths Dollars ($47,824.42) per month,
and shall be payable in addition to Additional Rent. Thereafter, the Base Rent
amount payable by Sublessee during the Extension Term shall increase by three
percent (3%) on each anniversary of the
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commencement date of the Extension Term. Base Rent and Additional Rent for the
Extension Term shall be payable on the same terms as such items are payable
under this Sublease during the Initial Term.
11. ASSIGNMENT AND SUBLETTING.
(a) Approval Required. Without the prior written consent
of Sublessor and Landlord, Sublessee shall not (i) assign, convey or mortgage
this Sublease or any interest under it; (ii) allow any transfer thereof or any
lien upon Sublessee's interest by operation of law; (iii) further sublet the
Premises or any part thereof or any right or privilege appurtenant thereto, or
(iv) permit the occupancy of the Premises or any part thereof by anyone other
than Sublessee. Sublessor's consent to an assignment of this Sublease shall not
be unreasonably withheld or delayed. Sublessor's consent to a further sublease
of a portion of the Premises by Sublessee may be granted or denied in
Sublessor's reasonable discretion. If Sublessor consents to any such assignment
or sub-sublease, Sublessor shall use reasonable efforts to obtain the consent of
Landlord; but Sublessor shall have no liability to Sublessee if Landlord fails
to consent. Any cost of obtaining the consent of Landlord (other than in
connection with this Sublease) shall be borne by Sublessor. No permitted
assignment shall be effective and no permitted sublease shall commence unless
and until any default by Sublessee hereunder shall have been cured. No permitted
assignment or subletting shall relieve Sublessee from Sublessee's obligations
and agreements hereunder and Sublessee shall continue to be liable as a
principal and not as a guarantor or surety to the same extent as though no
assignment or subletting had been made.
(b) Bonus Rent. In the event that Sublessor has consented
to an assignment or subletting by Sublessee, Sublessor shall be entitled to
receive: (i) in the case of a subletting, fifty percent (50%) of all rent
(however denominated and paid) payable by the sub-sublessee to Sublessee in
excess of that payable by Sublessee pursuant to the provisions of this Sublease,
and (ii) in the case of an assignment, fifty percent (50%) of all rent (however
denominated and paid) payable by the assignee to Sublessee in excess of that
payable by Sublessee pursuant to the provisions of this Sublease. For the
purposes of this Section 11(b), the term "rent" shall mean all consideration
paid or given, directly or indirectly, for the use of the Premises or any
portion thereof, and the term "consideration" shall mean and include money,
services, property or any other thing of value such as payment of costs,
cancellation of indebtedness, discounts, rebates and the like paid or payable to
Sublessee for the assignment and for all property in the Premises included in
such assignment, that are not a part of Sublessee's Property. The term
"Sublessee's Property" shall mean all property owned by Sublessee other than its
interest in this Sublease and the Equipment, including, but not limited to, all
of Sublessee's inventory, accounts, trade fixtures, equipment, furniture, other
personal property, goodwill and any other intangible personal property
associated with Sublessee's business. In computing the amount payable to
Sublessor, Sublessee may deduct from the rent and consideration all reasonable
and customary expenses directly incurred by Sublessee attributable to the
assignment or sublease, including, but not limited to, brokerage fees and legal
fees. "Sublet" and "sublease" shall include a sublease as to which Sublessee is
sublessor and any sub-sublease or other sub-subtenancy, irrespective of the
number of tenancies and tenancy levels between the ultimate occupant and
Sublessor, as to which Sublessee receives any consideration, as defined in this
subsection. Any rent or other consideration which is to be passed through to
Sublessor by Sublessee pursuant to this subsection shall be paid to Sublessor
within thirty (30) days after receipt by Sublessee and shall be paid in
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cash, irrespective of the form in which received by Sublessee from any
sub-subtenant or assignee. In the event that any rent or other consideration
received by Sublessee from a sub-subtenant or assignee is in a form other than
cash, Sublessee shall pay to Sublessor in cash the fair value of such
consideration.
12. DAMAGE AND DESTRUCTION. In the event of damage or destruction
to the Premises or the Building, each party agrees to forward to the other,
within twenty-four (24) hours of receipt, a copy of each notice received from,
or given to, Landlord in connection therewith. If the Premises or the Building
are damaged or destroyed by fire or other casualty and Landlord undertakes to
repair the same pursuant to the Lease, this Sublease shall remain in full force
and effect, except that if the rent payable under the Lease is reduced as a
result of such damage or destruction, Sublessee shall be entitled to a
proportionate reduction of Base Rent and Additional Rent payable hereunder while
such repairs are being made. If the Premises or the Building are damaged to an
extent that Landlord has a right to terminate the Lease, and Landlord in fact
terminates the Lease, this Sublease shall terminate. Landlord and Sublessor
shall not be required to repair any damage by fire or other cause to the
property of Sublessee, or to make any repairs or replacements of any paneling,
decoration, railings, floor coverings or any additions or improvements installed
on the Premises by Sublessee.
13. EMINENT DOMAIN. If, due to any taking or appropriation of all
or a part of the Premises or the Building, Landlord exercises its right to
terminate the Lease, this Sublease shall terminate. If part of the Premises
shall be so taken or appropriated and this Sublease shall not be terminated as
provided herein, then the rent thereafter to be paid hereunder shall be
equitably reduced, as provided in the Lease.
14. HAZARDOUS MATERIALS. Sublessee shall strictly comply with all
applicable covenants regarding Hazardous Materials contained in the Lease,
including without limitation, the following:
(a) Sublessee agrees that during its use and occupancy of
the Premises it will (1) not (A) permit Hazardous Materials to be present on or
about the Premises except in a manner and quantity necessary for ordinary
performance of Sublessee's business or (B) release, discharge or dispose of any
Hazardous Materials on, in, at, under, or emanating from, the Premises, the
Building or the Project; (2) comply with all applicable Environmental Laws
relating to Sublessee's use of Hazardous Materials in, on or about the Premises
and not engage or permit its agents to engage in any activity in, on or about
the Premises in violation of any Environmental Laws; and (3) immediately upon
having knowledge notify Sublessor of (A) any inquiry, test, investigation or
enforcement proceeding by any governmental agency or authority against
Sublessee, Sublessor, Landlord or the Premises, Building or Project relating to
any Hazardous Materials or under any Environmental Laws or (B) the occurrence of
any event or existence of any condition that would cause a breach of any of the
covenants set forth in this Section 14.
(b) If Sublessee's use of Hazardous Materials on or about
the Premises results in a release, discharge or disposal of Hazardous Materials
on, in, at, under or emanating from, the Premises, the Building or the Project,
Sublessee agrees to investigate, clean up, remove or remediate such Hazardous
Materials in full compliance with (1) the requirements of (A) all
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applicable Environmental Laws and (B) any governmental agency or authority
responsible for the enforcement of Environmental Laws; and (2) any additional
requirements of Landlord that are reasonably necessary to protect the value of
the Premises, the Building or the Project.
(c) Sublessee shall surrender the Premises to Sublessor
upon the expiration or earlier termination of this Sublease free of debris,
waste or Hazardous Materials placed on, about or near the Premises by Sublessee
or Sublessee's agents, and in a condition that complies with (i) all
Environmental Laws relating to Hazardous Materials placed on, about or near the
Premises by Sublessee or Sublessee's agents and (ii) any additional applicable
requirements of Landlord that are reasonably necessary to protect the value of
the Premises, the Building or the Project, including, without limitation, the
obtaining of any closure permits or other governmental permits or approvals
related to Sublessee's use of Hazardous Materials in or about the Premises,
including, without limitation, a site closure report prepared in accordance with
San Mateo County Environmental Health regulations. Sublessee's obligations and
liabilities pursuant to the provisions of this Section 14 shall survive the
expiration or earlier termination of this Sublease.
15. ENTRY BY SUBLESSOR. Sublessor reserves and shall at any and
all times (within ordinary business hours, except in the case of emergency) have
the right to enter the Premises, in accordance with Sublessee's operating and
safety procedures, to inspect the same, to post notices of nonresponsibility, or
to show the Premises to prospective subtenants, or in the event of Sublessee's
default with respect thereto, to perform any obligation of Sublessor as Tenant
under the Lease relating to the use, maintenance or repair of the Premises. In
the event that Sublessee shall not provide Sublessor with a key to the Premises,
Sublessee waives any claims for damages resulting directly from Sublessor's use
of force to enter the Premises in the event of an emergency. Sublessee waives
any claim for damages for any injury or inconvenience to or interference with
Sublessee's business, any loss of occupancy or quiet enjoyment of the Premises,
and any other loss occasioned by such entry, except to the extent caused by the
negligence of Sublessor, its agents, employees or invitees, provided that the
entrance to the Premises shall not be blocked thereby and further provided that
the business of Sublessee shall not be interfered with unreasonably. Except in
the case of emergency, Sublessor shall give Sublessee reasonable prior notice of
any intended entry of the Premises by Sublessor, and shall obtain the permission
of an officer of Sublessee (which permission shall not be unreasonably
withheld). Any entry to the Premises by Sublessor pursuant to this Section 14
shall not under any circumstances be construed or deemed to be a forcible or
unlawful entry into or a detainer of the Premises or an eviction of Sublessee
from the Premises or any portion thereof.
16. INDEMNIFICATION.
(a) Sublessee shall hold Sublessor, and its subsidiaries,
affiliates, directors, officers, agents, contractors, servants, employees and
licensees (hereinafter "indemnitees") harmless from and shall indemnify and
defend indemnitees against any and all damages, claims or liability arising from
any breach or default in the performance of any obligation of Sublessee
hereunder.
(b) Sublessor shall hold Sublessee, and its subsidiaries,
affiliates, directors, officers, agents, contractors, servants, employees and
licensees (hereinafter "indemnitees") harmless from and shall indemnify and
defend indemnitees against any and all damages, claims
10
or liability (i) arising from any breach or default in the performance of any
obligation of Sublessor hereunder, and (ii) for any injury or damage to any
person or property occurring in, on or about the Building or any part thereof,
exclusive of the Premises, when such injury or damage shall be caused by the
act, neglect, default, or omission of any duty with respect to the same by
Sublessor, its agents, employees or invitees, except to the extent such
liability arises from the gross negligence or willful misconduct of indemnitees;
and from and against all costs, counsel fees, expenses and liabilities incurred
in or in connection with any such claim or any action or proceeding brought
thereon.
17. BROKERS. Sublessor and Sublessee each represents to the other
that it has dealt with no brokers in connection with this Sublease other
Sublessor's broker, CB Xxxxxxx Xxxxx/Kenmark Commercial, and Sublessee's broker,
TECHNOLOGY Commercial/BT Commercial. Each of Sublessor and Sublessee shall
indemnify, defend, and hold the other harmless from and against any costs,
expenses, liability, loss or damage arising out of or relating to the falsity of
the foregoing representation. Sublessor agrees to pay brokerage fees and
commissions payable to TECHNOLOGY Commercial/BT Commercial with respect to this
Sublease in accordance with the provisions of a separate commission contract.
18. RIGHT OF FIRST REFUSAL. If Sublessor receives and proposes to
accept, subject to the provisions of this Section 18, any offer to sublease the
portion of the space on the first floor of the Building depicted on Exhibit C-3
attached hereto (the "ROFR Space"), Sublessor shall provide Sublessee with
written notice of such offer, including the specific economic terms and
conditions thereof. Sublessee shall have five (5) business days following
receipt of such notice to either indicate in writing to Sublessor Sublessee's
agreement to sublease the ROFR Space upon the same economic terms and conditions
as set forth in such offer, but otherwise on the general terms and conditions of
this Sublease (in which case the parties shall enter into a mutually acceptable
sublease or amendment to this Sublease incorporating such terms and conditions)
or to waive Sublessee's right of first refusal with respect thereto. Any failure
by Sublessee to respond to such notice within such five (5) business day period
shall constitute an irrevocable waiver by Sublessee of its rights under this
Section 18 with respect to such offer. Upon Sublessee's failure to timely notify
Sublessor of its exercise of rights under this Section 18, Sublessor may agree
to sublease the ROFR Space to the party that submitted such offer. So long as
the base rent amount payable under the final agreement between Sublessor and
such party is at least ninety percent (90%) of the base rent amount contained in
Sublessor's notice to Sublessee, Sublessor shall not be required to provide any
further notice or right of first refusal to Sublessee. If the base rent payable
under such final agreement is less than ninety percent (90%) of the base rent
amount contained in Sublessor's initial notice to Sublessee, then Sublessor
shall submit a new notice to Sublessee containing such revised economic terms,
and Sublessee shall have the opportunity to agree to sublease the ROFR Space
upon the same economic terms and conditions as set forth in such new notice by
providing timely notice to Sublessor, in accordance with the terms and
conditions of this Section 18.
19. MISCELLANEOUS.
(a) Entire Agreement. This Sublease, together with its
Exhibits, constitutes the entire agreement of Sublessor and Sublessee with
respect to the matters described herein, and shall supersede all prior
correspondence, agreements and understandings concerning such
11
matters, whether oral or written. No addition to, or amendment or modification
of, any term or provision of this Sublease shall be effective unless set forth
in writing and signed by Sublessor and Sublessee.
(b) Authority. Each individual executing this Sublease on
behalf of either party represents and warrants that he or she is duly authorized
to execute and deliver this Sublease on behalf of such party.
(c) Attorneys' Fees. If either party commences an action
against the other party arising out of or in connection with this Sublease, or
for interpretation of any of its provisions, the prevailing party shall be
entitled to recover its costs and expenses, including reasonable attorneys' fees
and court costs, from the other party. In addition, if either Sublessor or
Sublessee becomes a party to any action concerning this Sublease or the Premises
solely by reason of the neglect or omission of any duty by the other party, the
party subjected to such action without fault shall be entitled to reimbursement
for any and all reasonable attorneys' fees and costs.
(d) Captions. All captions and headings in this Sublease
are for the purposes of reference and convenience and shall not limit or expand
the provisions of this Sublease.
(e) Counterparts. This Sublease may be executed in one or
more counterparts, each of which shall constitute an original, and all of which
shall constitute a single agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
12
IN WITNESS WHEREOF, Sublessor and Sublessee have executed this
Sublease on the dates set out below.
SUBLESSOR: SUBLESSEE:
XXXXXXX PHARMACEUTICAL, INC., AXYS PHARMACEUTICALS, INC.,
a Delaware corporation a Delaware corporation
By: /s/ Xxxxxxxx Xxxxxx By: /s/ Xxxx X. Xxxxxxxxxxx
------------------------ -----------------------
Title: CFO Title: Treasurer
Date: September 11, 2003 Date: September 4, 2003
---------------------- ---------------------
13
EXHIBIT A
LEASE
[Exhibit 10.17 to Annual Report on Form 10-K
for Xxxxxxx Pharmaceutical, Inc. filed March 27, 1998]
X-0
XXXXXXX X-0
PREMISES
[Diagram of premises]
X-0-0
XXXXXXX X-0
OFFICE IMPROVEMENT SPACE
[Diagram of office improvement space]
X-0-0
XXXXXXX X-0
RIGHT OF FIRST REFUSAL SPACE
[Drawing of first refusal space]
X-0-0
XXXXXXX X
XXXX XX XXXXXXXX OF SUBLEASE
THIS GUARANTY OF SUBLEASE ("Guaranty") is made as of
___________, 2003, by ____________________________, a _________________
("Guarantor"), to XXXXXXX PHARMACEUTICAL, INC., a Delaware corporation
("Sublessor"), with an address at 0000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxxxxx 00000, with reference to the following facts:
A. Concurrently herewith, Sublessor and _______________,
a ________________ ("Sublessee"), are entering into that certain Sublease
Agreement, dated as of _____________, 2003 ("Sublease"), for approximately
__________ rentable square feet of space located on the first (1st) floor of
that certain building located at 000 xxxxxxx Xxxxxxxxx, Xxxxx Xxx Xxxxxxxxx,
Xxxxxxxxxx, and more particularly described in the Sublease. Any terms not
defined herein shall have the meaning set forth in the Sublease.
B. Sublessor is not willing to execute the Sublease
based solely upon the credit of Sublessee. Guarantor is willing to execute this
Guaranty of Sublease in support of Sublessee's commitments made under the
Sublease for the express and intended purpose of inducing Sublessor to enter
into the Sublease.
NOW, THEREFORE, Guarantor hereby guarantees as follows:
1. GUARANTY. Guarantor does hereby absolutely and
unconditionally guarantee to Sublessor the prompt payment of all amounts that
Sublessee, or any assignee of the Sublease, may at any time owe under the
Sublease, any extensions, renewals or modifications thereof, and further
guarantees to Sublessor the full, prompt and faithful performance by Sublessee,
or any assignee of the Sublease, of each and all of the covenants, terms, and
conditions of the Sublease, or any extensions, modifications or renewals
thereof, to be hereafter performed and kept by Sublessee, or any assignee of the
Sublease (all such obligations of Sublessee under the Sublease are referred to
as "Sublessee's Obligations"). This is a Guaranty of payment and performance and
not merely of collection. If Sublessee or any assignee of the Sublease fails to
make any payment when due under the Sublease or to perform any duties,
obligations or covenants contained in the Sublease to be performed by Sublessee,
or any assignee of the Sublease, Guarantor will immediately and unconditionally
pay to Sublessor such amounts and perform such duties, obligations and covenants
after receipt of notice and expiration of the applicable periods of grace in the
Sublease. Guarantor shall pay to Sublessor on demand, all expenses (including,
without limitation, reasonable attorneys' fees and costs) arising out of or
relating to the enforcement or protection of Sublessor's rights hereunder.
2. INDEPENDENT OBLIGATIONS. Guarantor's obligations
hereunder are absolute, primary, unconditional and irrevocable obligations which
are independent of the obligations of Sublessee, or any assignee of the
Sublease, and a separate action or actions may be brought and prosecuted against
Guarantor whether or not action is brought against Sublessee or any such
assignee or whether or not Sublessee or any such assignee be joined in any such
action or actions.
C-1
3. RIGHTS OF SUBLESSOR. Guarantor authorizes Sublessor,
without notice or demand and without affecting its liability hereunder, from
time to time to (a) extend, accelerate, or otherwise change the time for any
payment provided for in the Sublease, or any covenant, term or condition of the
Sublease, in any respect to impair or suspend the Sublessor's remedies or rights
against Sublessee in connection with the Sublease, and to consent to any
assignment, subletting or reassignment of the Sublease; (b) take and hold
security for any payment provided for in the Sublease or for the performance of
any covenant, term or condition of the Sublease, or exchange, waive or release
any such security; (c) apply such security and direct the order or manner of
sale thereof as Sublessor in its discretion may determine. Sublessor may without
notice assign this Guaranty, the Sublease, or the rents and other sums payable
thereunder. Notwithstanding any termination, renewal, extension or holding over
of the Sublease, this Guaranty shall continue until all of Sublessee's
Obligations have been fully and completely performed by Sublessee or any
assignee of the Sublease.
Guarantor shall not be released by any act or event which
might, but for this provision of this Guaranty, be deemed a legal or equitable
discharge of a surety, or by reason of any waiver, extension, modification,
forbearance or delay or other act or omission of Sublessor or its failure to
proceed promptly or otherwise as against Sublessee or Guarantor, or by reason of
any action taken or omitted or circumstance which may or might vary the risk or
affect the rights or remedies of Guarantor as against Sublessee, or by reason of
any further dealings between Sublessee and Sublessor, whether relating to the
Sublease or otherwise, and Guarantor hereby expressly waives and surrenders any
defense to its liability hereunder based upon any of the foregoing acts,
omissions, things, agreements, waivers or any of them; it being the purpose and
intent of this Guaranty that the obligations of Guarantor hereunder are absolute
and unconditional under any and all circumstances.
Guarantor further agrees that to the extent Sublessee or
Guarantor makes any payment to Sublessor in connection with Sublessee's
Obligations and all or any part of such payment is subsequently invalidated,
declared to be fraudulent or preferential, set aside or required to be repaid by
Sublessor or paid over to a trustee, receiver or any other entity, whether under
any bankruptcy act or otherwise (any such payment is hereinafter referred to as
a "Preferential Payment"), then this Guaranty shall continue to be effective or
shall be reinstated, as the case may be, and, to the extent of such payment or
repayment by Sublessor, Sublessee's Obligations or part thereof intended to be
satisfied by such Preferential Payment shall be revived and continued in full
force and effect as if said Preferential Payment had not been made.
4. WAIVER OF DEFENSES. Guarantor waives (a) any right to
require Sublessor to (i) proceed against Sublessee or any other person or
entity; (ii) proceed against or exhaust any security held from Sublessee or
Guarantor; (iii) pursue any other remedy in Sublessor's power which Guarantor
cannot itself pursue, and which would lighten its burden; (b) all statutes of
limitations as a defense to any action brought against Guarantor by Sublessor to
the fullest extent permitted by law; (c) any defense based upon any legal
disability of Sublessee, or any assignee of the Sublease, or any discharge or
limitation of the liability of Sublessee, or any assignee of the Sublease, to
Sublessor, whether consensual or arising by operation of law or any bankruptcy,
reorganization, receivership, insolvency, or debtor-relief proceeding, or from
any other cause; (d) presentment, demand, protest and notice of any kind; and
(e) any defense based upon or arising out of any defense which Sublessee, or any
assignee of the Sublease, may have to the payment or
C-2
performance of any part of Sublessee's Obligations. Guarantor waives all demands
upon and notices to Sublessee, or any assignee of the Sublease, and to
Guarantor, including demands for performance, notices of non-performance,
notices of nonpayment and notice of acceptance of this Guaranty.
5. Waiver of Subrogation.
(a) Notwithstanding any other provision of this Guaranty
to the contrary, until the obligations of Sublessee under the Sublease are fully
performed and paid, Guarantor hereby waives any claims or other rights which
Guarantor may now have or hereafter acquire against Sublessee or any other
guarantor of all or any of Sublessee's Obligations, which claims or other rights
arise from the existence or performance of Guarantor's obligations under this
Guaranty or the Sublease (all such claims and rights are referred to as
"Guarantor's Conditional Rights"), including, without limitation, any right of
subrogation, reimbursement, exoneration, contribution, or indemnification, any
right to participate in any claim or remedy of Sublessor against Sublessee or
any collateral which Sublessor now has or hereafter acquires, whether or not
such claim, remedy or right arises in equity or under contract, statute or
common law, by any payment made hereunder or otherwise, including, without
limitation, the right to take or receive from Sublessee, directly or indirectly,
in cash or other property or by setoff or in any other manner, payment or
security on account of such claim or other rights. If, notwithstanding the
foregoing provision, any amount shall be paid to Guarantor on account of any
Guarantor's Conditional Rights and either (i) such amount is paid to Guarantor
at any time when Sublessee's Obligations shall not have been paid or performed
in full, or (ii) regardless of when such amount is paid to Guarantor, any
payment made by Sublessee to Sublessor is at any time determined to be a
Preferential Payment, then such amount paid to Guarantor shall be held in trust
for the benefit of Sublessor and shall forthwith be paid to Sublessor to be
credited and applied upon Sublessee's Obligations, whether matured or unmatured,
in such order as Sublessor, in its sole and absolute discretion, shall
determine.
(b) To the extent that any of the provisions of
subsection (a) of the above Section shall not be enforceable, Guarantor agrees
that until such time as Sublessee's Obligations have been paid and performed in
full and the period of time has expired during which any payment made by
Sublessee or Guarantor to Sublessor may be determined to be a Preferential
Payment, Guarantor's Conditional Rights to the extent not validly waived shall
be subordinate to Sublessor's right to full payment and performance of
Sublessee's Obligations, and Guarantor shall not enforce Guarantor's Conditional
Rights during such period.
6. ASSUMPTION OF OBLIGATIONS AND WAIVERS AS TO FINANCIAL
CONDITION. Guarantor's obligations hereunder shall not be affected by any
failure on the part of Sublessor to inform Guarantor concerning Sublessee's
financial condition or notify Guarantor of any adverse change in Sublessee's
financial condition of which Sublessor becomes aware. Guarantor assumes the
obligation to make such inquiries with respect to such financial condition as
Guarantor deems necessary or prudent in the circumstances.
7. COSTS AND EXPENSES. If Guarantor fails to perform any
of its obligations under this Guaranty or if any dispute arises between the
parties hereto concerning the meaning or interpretation of any provision of this
Guaranty, then the defaulting party or the party not
C-3
prevailing in such dispute, as the case may be, shall pay any and all costs and
expenses incurred by the other party on account of such default and/or in
enforcing or establishing its rights hereunder, including, without limitation,
court costs and reasonable attorneys' fees and disbursements. Any such
attorneys' fees and other expenses incurred by either party in enforcing a
judgment in its favor under this Guaranty shall be recoverable separately from
and in addition to any other amount included in such judgment, and such
attorneys' fees obligation is intended to be severable from the other provisions
of this Guaranty and to survive and not be merged into any such judgment.
8. NOTICES. Notices or other communications given under
this Guaranty shall be effective only if rendered or given in writing, sent by
certified mail with a return receipt requested or by facsimile with a
confirmation receipt (and a copy sent by a commercial overnight courier that
guarantees next day delivery) or delivered personally or by a nationally
recognized overnight courier service: (a) to Guarantor at Guarantor's address
set forth below; or (b) to Sublessor at Sublessor's address set forth above. Any
such notice or other communication shall be deemed to have been rendered or
given two (2) days after the date when it shall have been mailed if sent by
certified mail, or upon actual receipt if sent by facsimile, or upon the date
personal delivery is made, or upon actual delivery if sent by overnight courier.
9. DELAY; CUMULATIVE REMEDIES. No delay or failure by
Sublessor to exercise any right or remedy against Sublessee or Guarantor will be
construed an a waiver of that right or remedy. No waiver or modification of any
provision of this Guaranty nor any termination of this Guaranty shall be
effective unless stated in writing and signed by the party charged with such
waiver or modification, and then only to the extent so stated, and no such
waiver shall apply to any circumstance other than the specific instance for
which it is given. In no event shall a waiver of any provision of this Guaranty
be implied from any course of conduct on the part of Guarantor and/or Sublessor
and/or any third party. All remedies of Sublessor against Sublessee and
Guarantor are cumulative.
10. MISCELLANEOUS.
(a) This Guaranty shall bind Guarantor, its successors
and assigns, and shall inure to the benefit of Sublessor and its successors and
assigns.
(b) The invalidity or unenforceability of any one or more
provisions of this Guaranty will not affect any other provision.
(c) Time is of the essence of each and every provision
hereof.
(d) This Guaranty and each and every term and provision
thereof shall be construed in accordance with the laws of the State of
California. Guarantor consents to the exercise of personal jurisdiction by the
courts of the State of California over Guarantor, and agrees that any action to
enforce the provisions of this Guaranty may be brought in the Superior Court in
________________________.
C-4
(e) In connection with an assignment of the Sublease by
Sublessee pursuant to the terms and conditions of Section 11 of the Sublease,
effective as of the assignment, Guarantor shall confirm in writing, in form and
substance reasonably satisfactory to Sublessor, Guarantor's performance of said
assignee's obligations under the Sublease pursuant to the terms and conditions
of this Guaranty.
C-5
IN WITNESS WHEREOF, Guarantor has executed this instrument on
the day and year first above written.
GUARANTOR:
____________________________________________,
a ___________________________________________
By: _________________________________________
Its:_________________________________________
Date: _______________________________________
By: _________________________________________
Its:_________________________________________
Date: _______________________________________
Notice Address of Guarantor:
___________________________________
___________________________________
___________________________________
Attn.: ____________________________
Fax No.: (___)___-________
C-6
EXHIBIT D
FORM OF FACILITIES SERVICES AGREEMENT
FACILITIES SERVICES AGREEMENT
BETWEEN
XXXXXXX PHARMACEUTICAL, INC.
AND
___________________________
__________ ___, 2003
FACILITIES SERVICES AGREEMENT
This Facilities Services Agreement (this "Agreement") is made to be
effective as of __________ ___, 2003, by and between Xxxxxxx Pharmaceutical,
Inc., a Delaware corporation ("Xxxxxxx"), and _______________________, a
_____________ ___________ ("Sublessee"), who are each referred to herein as a
"Party" and, collectively, as the "Parties."
RECITALS
WHEREAS, Sublessee and Xxxxxxx have entered into that certain
Sublease Agreement (the "Sublease"), dated as of ___________ ___, 2003, pursuant
to which Sublessee will sublease from Xxxxxxx the Premises (as such term is
defined in the Sublease) comprised of approximately ________ rentable square
feet in South San Francisco (the "Facility");
WHEREAS, in connection with the transactions contemplated by
the Sublease, Sublessee wishes to obtain from Xxxxxxx certain facilities
services, as set forth herein; and
WHEREAS, Xxxxxxx is willing to provide Sublessee such
facilities services on the terms and subject to the conditions set forth in this
Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereby agree as
follows:
1. DEFINITIONS. Capitalized terms used but not defined herein shall have
the meanings assigned to them in the Sublease.
2. SERVICES.
2.1 PROVISION OF FACILITIES SERVICES. Subject to the
terms hereof, during the Services Period (as defined in Section 6.1), Xxxxxxx
shall provide or cause its affiliates to provide to Sublessee at the Facility
the services set forth on Schedule A (the "Facilities Services"). The Facilities
Services shall be limited to facilities management and coordination. The Parties
acknowledge and agree that pursuant to this Agreement Xxxxxxx is not providing
any direct services with respect to the following matters or any other such
matters customarily performed by an independent contractor:
(a) engineering;
(b) maintenance;
(c) environmental/regulatory matters;
(d) legal or accounting services;
(e) general construction or construction subcontracting
services; or
(f) architectural or space planning services.
Any such services required by Sublessee in connection with the Facility shall be
contracted directly for and paid for by Sublessee.
2.2 RECORD KEEPING. Xxxxxxx shall maintain appropriate
books of accounts and records relating to the provision of Facilities Services,
and provide copies of such books of accounts and records and any maintenance
contracts or reports relating to the Facilities Services to Sublessee within ten
(10) days of Sublessee's request therefor at the sole cost and expense of
Sublessee.
3. COMPENSATION.
3.1 REIMBURSEMENT OF COSTS. Sublessee shall pay Xxxxxxx
for Xxxxxxx'x actual costs incurred [COST LEVELS TO BE DISCUSSED] with respect
to the Facilities Services in each calendar month for which Facilities Services
have been provided or coordinated by Xxxxxxx or its affiliates. Schedule A sets
forth the projected number of hours for the Facilities Services based on
Xxxxxxx'x historical figures.
3.2 INVOICES AND PAYMENT.
(a) INVOICES AND PAYMENT. Notwithstanding anything to the
contrary contained in the Sublease with regard to the timing of Sublessee's
payment of Additional Rent (as defined therein), within ten (10) calendar days
after the end of each calendar month in which Facilities Services have been
provided by Xxxxxxx or its affiliates, Xxxxxxx shall submit to Sublessee an
invoice for payment of amounts due to Xxxxxxx under this Agreement for such
calendar month or, if applicable, a partial calendar month (the "Monthly
Statement"). The Monthly Statement will contain such supporting detail as may be
reasonably required to validate such amounts due. All Monthly Statements are
payable in United States dollars. All payments required under this Agreement
shall be paid in accordance with instructions provided by Xxxxxxx. Such payments
shall be due within twenty (20) calendar days of the date of each Monthly
Statement. If any payment is not made when due, Sublessee will pay a late charge
on the overdue amount equal to the lesser of (i) five percent (5%) of the
payment due or (ii) the maximum amount permitted by the law of the state of
California.
(b) OBLIGATIONS FOR PAYMENT. Sublessee's obligation to
pay all amounts due hereunder is absolute and unconditional and is not subject
to any abatement, reduction, set-off, defense, counterclaim, interruption,
deferment or recoupment for any reason whatsoever.
(c) TAXES AND FEES. Sublessee will pay when due or
reimburse Xxxxxxx on an after-tax basis for all taxes accrued for or arising
during the Services Period against Xxxxxxx or Sublessee with respect to the
Facilities Services by any governmental entity.
4. LIMITATIONS OF LIABILITY; STANDARD OF CARE. IN NO EVENT WILL EITHER
PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE,
OR INDIRECT DAMAGES, OR FOR LOST PROFITS, ARISING FROM OR RELATING TO THIS
AGREEMENT. THE PARTIES ACKNOWLEDGE THAT THE FOREGOING LIMITATIONS ON EACH
PARTY'S LIABILITY ARE REASONABLE, FORM
2
AN ESSENTIAL PART OF THIS AGREEMENT, AND REFLECT THE AGREED-UPON ALLOCATION OF
RISK BETWEEN THE PARTIES. NOTHING IN THIS SECTION 4 WILL AFFECT EITHER PARTY'S
INDEMNIFICATION OBLIGATIONS UNDER SECTION 7 OR LIMIT EITHER PARTY'S LIABILITY IN
TORT FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. Subject to the foregoing, as a
general principle, Xxxxxxx shall (and will cause its affiliates to) perform the
Facilities Services hereunder in a reasonable manner, consistent with the basic
level of service customarily provided by third party real estate facility
management companies for properties such as the Facility.
5. SCOPE OF FACILITIES SERVICES. Neither Xxxxxxx nor any of its affiliates
shall be obligated to perform or to cause to be performed any Facilities
Services in a volume, quantity or level of use that materially exceeds the
historical volume, quantity and level of use of such Facilities Service
performed or required by Xxxxxxx in connection with the Facility, as determined
by comparing such Facilities Services usage levels to the range of monthly
quantities of such services and usage levels performed or required by Xxxxxxx in
connection with the Facility during the twelve (12) months immediately preceding
the Closing Date. Nothing herein shall relieve Xxxxxxx of its obligation under
the Sublease to maintain any common systems of the Premises used in common by
Xxxxxxx and Sublessee.
6. TERM AND TERMINATION.
6.1 TERM. Xxxxxxx shall provide the Facilities Services
to Sublessee during the period commencing on ___________ ___, 2003 and shall
continue for the Initial Term of the Sublease (as defined in Section 1 of the
Sublease) (the "Services Period") unless a particular Facilities Service is
earlier terminated in accordance with Section 7.2. Subject to Section 7.2, the
Services Period may be extended at the option of the Parties for the Extension
Term (as defined in Section 1 of the Sublease) if Sublessee exercises its option
to extend the term of the Sublease. If for any reason the Sublease shall
terminate before the Services Period terminates, this Agreement shall
automatically be terminated. This Agreement may also be terminated as follows:
(a) by either Party upon written notice to the other
Party in the event that the other Party breaches any material term of this
Agreement and fails to remedy such breach within thirty (30) days after receipt
from the non-breaching Party of written notice of such breach;
(b) Sublessee shall have the right to direct that any or
all of the Facilities Service(s) be terminated effective on a date established
by Sublessee that is before the end of the Services Period. Such termination
will be effective no earlier than thirty (30) calendar days after written notice
of termination is received by Xxxxxxx, unless Xxxxxxx consents to a shorter
period. Sublessee will remain responsible for paying Xxxxxxx for any charges
associated with Facilities Services incurred prior to the effective date for
such termination. Subject to mutual consent of both Parties, Sublessee may
direct that the level of any specific item of Facilities Services be reduced or
phased out. Facilities Services charged on a monthly basis that are provided for
a partial period shall be charged for on a pro-rata basis, based on a thirty
(30) day month (except to the extent Xxxxxxx incurs actual third party costs for
the entire month); and
(c) Xxxxxxx shall have the right to direct that any or
all of the Facilities Service(s) be terminated effective on a date established
by Xxxxxxx that is before the end of the Services Period. Such termination will
be effective no earlier than thirty (30) calendar days after written notice of
3
termination is received by Sublessee, unless Sublessee consents to a shorter
period. Sublessee will remain responsible for paying Xxxxxxx for any charges
associated with Facilities Services incurred prior to the effective date for
such termination. Subject to mutual consent of both Parties, Xxxxxxx may direct
that the level of any specific item of Facilities Services be reduced or phased
out. Facilities Services or charged on a monthly basis that are provided for a
partial period shall be charged for on a pro-rata basis, based on a thirty (30)
day month (except to the extent Xxxxxxx incurs actual third party costs for the
entire month).
6.2 EFFECT OF TERMINATION. Upon termination of this
Agreement, neither Sublessee nor Xxxxxxx shall incur any liability to the other
by reason of the expiration or termination of this Agreement as provided herein,
nor for its non-renewal, whether for loss of goodwill, anticipated profits or
otherwise, and Sublessee and Xxxxxxx shall accept all rights granted and
obligations assumed hereunder, including those in connection with such
expiration or termination in full satisfaction of any claim resulting from such
expiration or termination. Xxxxxxx shall have no obligation to perform any
Facilities Services after the expiration or termination of this Agreement, and
Sublessee shall have no obligation to pay any compensation for any Facilities
Services provided after the expiration or termination of this Agreement;
provided, however, that Sublessee shall have an obligation to pay all
compensation accruing to and including the date on which this Agreement expires
or terminates.
6.3 SURVIVAL. The following provisions of this Agreement
shall survive its termination: Sections 4, 6.3 and 7.
7. LIABILITY AND INDEMNITY OF XXXXXXX. Sublessee shall indemnify, defend
and hold harmless Xxxxxxx and its affiliates, and their respective officers,
directors, stockholders, employees, agents and controlling Persons (the "Xxxxxxx
Indemnified Parties") from and against and shall reimburse any such Xxxxxxx
Indemnified Parties for any and all liability, damage, deficiency, loss,
judgments, assessments, cost and expense, including reasonable attorneys' fees,
expert witness fees, and other fees and costs of investigating and defending
against lawsuits, complaints, actions or other pending or threatened litigation
(and including any appeal thereof) ("Losses"), to the extent arising from or
attributable to any acts or omissions or errors in judgment by Xxxxxxx pursuant
to this Agreement, provided that Sublessee shall not be liable for any of Losses
to the extent they arise from Xxxxxxx'x xxxxx negligence or willful misconduct.
Notwithstanding anything in this Agreement seemingly to the contrary, Sublessee
acknowledges and agrees that Xxxxxxx is providing the Facilities Services at the
request of and as an accommodation to Sublessee, and that Xxxxxxx shall be
entitled to rely entirely on written instructions of Sublessee in performing
Facilities Services, without any duty to make any inquiry with respect to such
instructions or to independently evaluate the benefit, effect or propriety
thereof; and Xxxxxxx and its affiliates, and their respective officers,
directors, stockholders, employees, agents, and controlling persons shall not be
liable, responsible or accountable in damages or otherwise to Sublessee, its
affiliates or any other Person, for any action taken or failure to act within
the scope of the authority conferred on Xxxxxxx pursuant to this Agreement,
unless such act or omission was grossly negligent or constituted willful
misconduct.
8. MISCELLANEOUS.
8.1 AMENDMENTS AND WAIVERS. Any term of this Agreement
may be amended, modified or waived only with the written consent of the Parties
or their respective successors and
4
assigns. Any amendment or waiver effected in accordance with this Section 8.1
shall be binding on the Parties and their respective successors and assigns.
8.2 SUCCESSORS AND ASSIGNS. This Agreement may not be
assigned by either Party without the prior written consent of the other Party;
provided, however, that either Party may, without such consent, assign its
rights and obligations under this Agreement in connection with an assignment of
such Party's interest in the Sublease and the Personal Property Lease, pursuant
to the terms and conditions of each such agreement. THE RIGHTS OF ANY OF
ASSIGNEE OF XXXXXXX SHALL NOT BE SUBJECT TO ANY ABATEMENT, DEDUCTION, OFF-SET,
COUNTERCLAIM, RECOUPMENT, DEFENSE OR OTHER RIGHT WHICH Sublessee MAY HAVE
AGAINST XXXXXXX OR ANY OTHER PERSON OR ENTITY. This Agreement shall be binding
on and inure to the benefit of the Parties and their respective successors and
assigns. Any purported assignment in violation of this Section 8.2 shall be
void.
8.3 GOVERNING LAW. This Agreement and all acts and
transactions pursuant hereto and the rights and obligations of the Parties shall
be governed, construed and interpreted in accordance with the laws of the state
of California, without giving effect to principles of conflict of laws.
8.4 COUNTERPARTS. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
8.5 TITLES AND SUBTITLES. The titles and subtitles used
in this Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
8.6 NOTICE. Any notice required or permitted by this
Agreement shall be in writing and shall be deemed sufficient upon receipt, when
delivered personally or by courier, overnight delivery service or confirmed
facsimile, or forty-eight (48) hours after being deposited in the regular mail
as certified or registered mail (airmail if sent internationally) with postage
prepaid, if such notice is addressed to the Party to be notified at such Party's
address or facsimile number as set forth below, or as subsequently modified by
written notice:
(a) if to Xxxxxxx, to:
Xxxxxxx Pharmaceutical, Inc.
c/o Corixa Corporation
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
with a copy to:
Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP
000 Xxxxxxx Xxxxxx
0
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxx, Xx., Esq.
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
(b) if to Sublessee, to:
_________________________________________
_________________________________________
_________________________________________
_________________________________________
Attention: ______________________________
Facsimile No.: __________________________
Telephone No: __________________________
with a copy to:
_________________________________________
_________________________________________
_________________________________________
_________________________________________
Attention: ______________________________
Facsimile No.: __________________________
Telephone No: __________________________
8.7 SEVERABILITY. If one or more provisions of this
Agreement are held to be unenforceable under applicable law, the Parties agree
to renegotiate such provision in good faith in order to maintain the economic
position enjoyed by each Party as close as possible to that under the provision
rendered unenforceable. In the event that the Parties cannot reach a mutually
agreeable and enforceable replacement for such provision, then (i) such
provision shall be excluded from this Agreement, (ii) the balance of this
Agreement shall be interpreted as if such provision were so excluded and (iii)
the balance of this Agreement shall be enforceable in accordance with its terms.
8.8 CUMULATIVE REMEDIES. All remedies available to either
Party for breach of this Agreement are cumulative and may be exercised
concurrently or separately, and the exercise of any one remedy will not be
deemed an election of such remedy to the exclusion of any other remedy.
8.9 FORCE MAJEURE. Nonperformance by either Party under
this Agreement, except for Sublessee's performance of its payment obligations,
which shall in no event be excused, will be excused while and to the extent that
performance is rendered impossible by strike, fire, flood, earthquake,
governmental action, or any other reason where failure to perform is beyond the
reasonable control of the nonperforming Party.
8.10 CONSTRUCTION OF AGREEMENT. Each Party has cooperated
in the drafting and preparation of this Agreement and no principles of
construction will be applied against either Party on the basis that such Party
drafted this Agreement.
6
8.11 NO IMPLIED WAIVER. No right under this Agreement or
breach hereof may be waived except in writing signed by the Parties. Neither the
failure of a Party to require performance of any provision of this Agreement nor
the delay in enforcing any right hereunder will be construed or act as a waiver
of such Party's rights to insist on performance of such provision or any other
provision or enforce any such right at some other time.
[Signature page follows.]
7
IN WITNESS WHEREOF, this Facilities Services Agreement has
been duly executed and delivered by the duly authorized officers of Sublessee
and Xxxxxxx to be effective as of the date first above written.
______________________________,
a _________________ _________________
By: _______________________________________
Name: _____________________________________
Title: ____________________________________
XXXXXXX PHARMACEUTICAL, INC.,
A DELAWARE CORPORATION
By: _______________________________________
Name: _____________________________________
Title: ____________________________________
8
SCHEDULE A
FACILITIES SERVICES
[TO BE DISCUSSED]
SCHEDULE I
EQUIPMENT
ITEM MANUFACTURER TYPE NUMBER
-------------------------------------------------------------------------------------------------------
CAPITAL EXPENSE ITEMS
Portable sinks Xxxxx-Xxxxxxxxx 0
0000 Xxxxx Cagewasher Steris 1
3500 Basil Cagewasher Steris 1
Xxxx Aqua Autoclave Steris 1
Bedding Dispenser Steris 1
Bottle Filler Steris 1
Lab Chairs 15
BUILDING FIXTURES
Bio-Hood Envirco Class II type 6 2
Bio-Hood Xxxxxx Xxxxxxxx SafeAir 2
Proportioner Xxxxxxx Industries 1
RODI Water System U.S. Filter 1
Clean Dry Air System Atlas Copco (Air Drying System) 1
General Pneumatics (Air Drying System)
Vacuum System Rietschle 1
[to be expanded to include cubicles and other furnishings]
C-1
