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EXHIBIT 10.40
[***] - CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
[***] HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
DATED OCTOBER 11, 2000
(1) XXXXX VACCINES LIMITED
(2) AVIRON UK LIMITED
(3) AVIRON
--------------------------------------------
AGREEMENT FOR LEASE
OF
AVU EXTENSION PREMISES AT XXXXXXX ROAD SPEKE
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CMS XXXXXXX XXXXXXX
XXXXX XXXXX
000 XXXXXXXXXX XXXXXX
XXXXXX XX0X 0XX
T + 44(0)20 7367 3000
F + 00(0)00 0000 0000
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THIS AGREEMENT is made October 11, 2000
BETWEEN:-
(1) XXXXX VACCINES LIMITED (registered number 3970089) having its registered
office at 000 Xxxx Xxxx, Xxxxxx, Xxxxxxxxx XX0 0XX (the "LANDLORD") and
(2) AVIRON UK LIMITED (registered number 3854275) having its registered
office at Carmelite, 00 Xxxxxxxx Xxxxxxxxxx, Xxxxxx XX0X ODX (the
"TENANT") and
(3) AVIRON (registered in Delaware) having its registered office at 000
Xxxxx Xxxxxxxx Xxxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx 00000, Xxxxxx Xxxxxx of
America (the "SURETY")
IT IS AGREED as follows:-
1. DEFINITIONS
1.1 In this agreement unless the context otherwise requires the following
expressions have the following meanings:-
"ADVERSE CONDITION": a condition in or requirement of a Planning
Agreement or a Planning Permission which the Landlord in its absolute
discretion considers to be unacceptable
"APPEAL PROCEEDINGS":
(a) any and all proceedings (other than Review Proceedings)
instituted before the appropriate tribunal body person or forum
in pursuance of an appeal in respect of the decision of the
Planning Authority or the Secretary of State or relating to or
consequent upon any Application including (without limiting the
generality of the foregoing) all or any of the following as the
case may be:-
(i) any appeal to the Secretary of State following a
Planning Refusal
(ii) any consideration by the Secretary of State of any
Application referred to him under section 77 of the
Planning Act
(b) any application for planning permission pursuant to section 73
of the Planning Act for the development of the Premises without
complying with an Adverse Condition (without which the Planning
Permission would be a Satisfactory Planning Permission)
"APPLICATION": an application to be made by the Landlord for detailed
planning permission for the proposed works to the Premises requiring
such permission and forming part of the Works and any reference to such
application will include any amended substituted or further application
made pursuant to this agreement
"BUILDING CONTRACTOR": the building contractor to be employed by the
Landlord
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[***] HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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"COMPETENT AUTHORITY": any local authority or any other body exercising
powers under statute or by Royal Charter or any utility service or
supply company
"COMPLIANCE DATE": the date on which the Conditions Precedent and the
Planning Conditions are wholly fulfilled
"CONDITIONS PRECEDENT":
(a) the grant of the Exclusion Order
(b) the grant of the consent of the Superior Lessor to the carrying
out of the Works
"CONSTRUCTION PERIOD": the period of 9 months from and including the
date upon which the last of the Planning Conditions is satisfied or
waived as herein provided PROVIDED THAT if on one or more occasions the
carrying out of the Works is delayed due to any circumstances beyond the
reasonable control of the Landlord then on each occasion the period will
be extended by such further period as is certified by the Consultant as
being reasonable
"CONSULTANT": the surveyor appointed by the Landlord in connection with
the carrying out of the Works
"CONSENTS": all permissions licences and approvals under the Planning
Acts the building regulations and under any other statute bye-law or
regulation of any Competent Authority
"DATE OF WORKS COMPLETION": the date which the Consultant certifies as
being the date on which practical completion of the Works was achieved
for the purposes of this agreement
"EXCLUSION ORDER": an order of a competent court under the provisions of
section 38(4) of the Landlord and Xxxxxx Xxx 0000 (as amended by section
5 of the Law of Property Act 1969) authorising the Landlord and the
Tenant to agree that the provisions of sections 24-28 of that Act will
be excluded in relation to the tenancy to be created by the Lease
"LANDLORD'S SOLICITORS": [***]
"LEADING COUNSEL": such leading counsel specialising in matters relating
to town and country planning as the parties may agree upon or in default
of agreement as may be nominated on the application of either party by
the President of the Law Society
"LEASE": a lease in the form of the draft annexed hereto subject to such
amendments as the Landlord may require and the Tenant may approve (such
approval not to be unreasonably withheld or delayed)
"LICENCE FOR ALTERATIONS": a licence in such form as the Landlord and/or
the Superior Lessor may require relating to the Works
[***] - CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
[***] HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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"PLANNING ACT": the Town and Country Xxxxxxxx Xxx 0000
"PLANNING ACTS": the Town and Country Planning Xxx 0000 the Planning
(Listed Buildings and Conservation Areas) Xxx 0000 the Planning
(Hazardous Substances) Xxx 0000 the Planning (Consequential Provisions)
Xxx 0000 and the Planning and Compensation Xxx 0000
"PLANNING AGREEMENT":
(a) any planning obligation entered into or proposed to be entered
into under section 106 of the Planning Act and/or
(b) any agreement concluded or proposed to be concluded between a
party to this agreement and (i) the Planning Authority
regulating the development and/or the use of the Premises
(whether or not under section 106 of the Planning Act) and/or
(ii) any other authority relating to the construction
maintenance or adoption of or the carrying out of works on or to
any road sewer drain or utility supply affecting or serving the
Premises (whether or not under section 38 or section 278 of the
Xxxxxxxx Xxx 0000 or section 104 of the Water Industry Act 1991)
"PLANNING AUTHORITY": the local planning authority
"PLANNING CONDITIONS":
FIRST the grant of a Satisfactory Planning Permission prior to the
expiry of the Relevant Period and
SECONDLY either the expiry of the Review Period prior to the Cut Off
Date without the institution of Review Proceedings or (if Review
Proceedings be commenced during the Review Period) their final
determination prior to the Cut Off Date leaving in place a Satisfactory
Planning Permission and
THIRDLY the completion of all Planning Agreements (if any) free from any
Adverse Condition prior to the expiry of the Relevant Period
"PLANNING PERMISSION": a written detailed planning permission for such
of the Works as require a Planning permission granted by the Planning
Authority or the Secretary of State pursuant to an Application
"PLANNING REFUSAL": a written refusal of an Application by the Planning
Authority (or a deemed refusal under section 78 of the Planning Act) or
a written refusal of Appeal Proceedings or a Planning Permission granted
subject to an Adverse Condition
"PREMISES": the parts of the Building known as the AVU Extension
Premises at Xxxxxxx Road, Speke part of which is shown for
identification purposes only hatched black on the
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[***] HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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plan attached hereto and the remaining part of which is comprised of a
mezzanine floor which runs part of the length of the area shown hatched
on the plan referred to.
"REGISTERED TITLE": the titles numbered MS134921, MS253780 and MS387854
at HM Land Registry
"RELEVANT PERIOD": a period comprising the aggregate of 7 months
months from the date of this agreement and the duration of any direction
by the Secretary of State that the Planning Authority should not
determine an Application subject to such aggregate period not exceeding
9 months months from the date of this agreement PROVIDED THAT if prior
to the expiry of such aggregate period an Application shall have become
the subject of Appeal Proceedings or Review Proceedings or a
Satisfactory Planning Permission shall have become the subject of Review
Proceedings instigated by a third party then such aggregate period will
be extended until the date on which such Appeal Proceedings or Review
Proceedings shall be finally determined PROVIDED FURTHER THAT in no
event will the Relevant Period be extended beyond 30th June 2006.
"RETAINED PREMISES": all parts of the Landlord's estate except the
Premises
"REVIEW PERIOD":
(a) in the case of any decision by the Secretary of State on any
reference under section 77 of the Planning Act or on any appeal
under section 78 of the Planning Act the period of six weeks
from the date of his decision letter
(b) in any other case the period of three months from the date on
which written notice of its decision is issued by the Planning
Authority
"REVIEW PROCEEDINGS": all or any of the following as the case may be in
relation to or consequent upon an Application or a Satisfactory Planning
Permission:-
(a) any application for judicial review under Order 53 of the rules
of the Supreme Court
(b) any application pursuant to section 288 of the Planning Act
(c) any appeal to a higher court following a judgment of a lower
court in respect of any application referred to in paragraphs
(a) and (b) of this definition
(d) any reconsideration by the Planning Authority or the Secretary
of State of any application referred to in paragraphs (a) and
(b) of this definition upon remission to it or him
"SATISFACTORY PLANNING PERMISSION": a Planning Permission granted
pursuant to an Application and which is free from any Adverse Condition
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[***] HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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"SECRETARY OF STATE": the Secretary of State for the Environment
Transport and the Regions or other minister or authority from time to
time having the powers now conferred upon him by sections 77 78 and 79
of the Planning Act
"STANDARD CONDITIONS": the Standard Conditions of Sale (Third Edition)
"SUPERIOR LEASE": a lease dated 1st April 1948 and made between (1) The
Lord Mayor Aldermen and Citizens of the City of Liverpool (1) and Xxxxx
Medical Supplies Limited (2) and a lease dated 20th February 1952 and
made between The Lord Mayor Aldermen and Citizens of the City of
Liverpool (1) and the Board of Trade (2) and any documents which are
supplemental to or collateral with or entered into pursuant to such
leases
"SUPERIOR LESSOR": the person from time to time entitled to any
reversion immediately or mediately expectant on the determination of the
term granted by the Superior Lease
"TENANT'S SOLICITORS": [***]
"VAT": Value Added Tax and any tax or duty of a similar nature
substituted for or in addition to it
"WORKS": the works to the Premises to be carried out by the Landlord as
specified in schedule 2
1.2 The definitions in the Standard Conditions also apply in this agreement
2. GENERAL PROVISIONS
2.1 In this agreement unless the context otherwise requires references to
clauses and schedules are to clauses of and schedules to this agreement
2.2 The headings to clauses and other parts of this agreement do not affect
its construction
2.3 This agreement contains the whole agreement between the parties relating
to the matters herein mentioned and supersedes previous agreements
between them (if any) relating thereto
2.4 This agreement may only be varied in writing signed by or on behalf of
the parties
2.5 The Tenant acknowledges that it has not entered into this agreement in
reliance upon representations made by or on behalf of the Landlord other
than in respect of such reliance as may be placed upon the Landlord's
Solicitors' written replies to the Tenant's Solicitors' preliminary
enquiries
2.6 Nothing in this agreement is to be read or construed as excluding any
liability or remedy resulting from fraudulent misrepresentation
[***] - CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
[***] HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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2.7 All money payable by the Tenant under this agreement will be paid by
direct credit transfer for the credit of the Landlord's Solicitors'
clients' account at [***] or for the credit of any other bank account
specified in writing by the Landlord's Solicitors
2.8 any reference to the grant of a Planning Permission or of a Satisfactory
Planning Permission or to a Planning Refusal (other than a deemed
refusal under section 78 of the Planning Act) will be construed as a
reference to the date of the written notice of decision issued by the
Planning Authority or by the Secretary of State
2.9 any reference to the final determination of any Appeal Proceedings or
Review Proceedings will be construed as a reference to the date by which
any appeal (or further appeal) against any determination of those Appeal
Proceedings or Review Proceedings can be lodged has expired without any
such appeal or further appeal being lodged
2.10 Any reference in this agreement to any enactment (whether generally or
specifically) will be construed as a reference to that enactment as
amended re-enacted consolidated or applied by or under any other
enactment and will include all instruments orders plans regulations
permissions and directions made or issued under or deriving validity
from such enactment
2.11 Every obligation of the Tenant in this agreement to do specified acts or
things will include an obligation to procure that they be done and every
obligation of the Tenant in this agreement not to do specified acts or
things will include an obligation not to permit or suffer them to be
done
2.12 This agreement contains the whole agreement between the parties relating
to the matters herein mentioned and supersedes previous agreements
between them (if any) relating thereto
2.13 The Landlord may [***] on or for the benefit of the Retained Premises as
the [***] from time to time without any [***] by the Tenant and in
relation to [***] (but subject to [***]) the Tenant hereby licenses the
Landlord to for such periods as are and to such extent as is reasonably
necessary in the circumstances
3. STANDARD CONDITIONS
This agreement incorporates the Standard Conditions as varied by
schedule 1 and so far as they apply to a letting and are not varied by
or inconsistent with the other provisions of this agreement (which will
prevail in case of conflict)
4. CONDITIONS PRECEDENT
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[***] HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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4.1 The performance by the Landlord of its obligations in relation to the
Works and the grant of the Lease are conditional on the Conditions
Precedent being wholly fulfilled and the performance by the Landlord of
its obligations in relation to the Works is additionally conditional on
the Planning Conditions being wholly fulfilled
4.2
4.2.1 The parties will apply for and use all reasonable endeavours but
at the cost of [***] to procure that the Conditions Precedent
and the Planning Conditions are wholly fulfilled provided that
the Landlord will not be obliged to institute court proceedings
against the Superior Lessor in respect of any consent needed
from the Superior Lessor unless [***] considers such proceedings
appropriate and [***] agrees to indemnify [***] against all
costs claims proceedings and other expenses resulting or
associated directly or indirectly with such proceedings
4.2.2 The Tenant will enter into such Planning Agreements in such form
as may be reasonable in the circumstances
4.2.3 In the event of a Planning Refusal the Landlord may (but without
obligation to do so and in any event [***], institute and
prosecute Appeal Proceedings or Review Proceedings
4.2.4 In the event of an Application or a Satisfactory Planning
Permission becoming the subject of Review Proceedings instigated
by any party not being the Landlord the Landlord shall have
absolute discretion as to its involvement or otherwise in such
proceedings
4.2.5 Without prejudice to clause 4.2.1 the Tenant will [***] and
[***] as may be reasonably required by the Superior Lessor
4.2.6 If so required by the Landlord and/or the Superior Lessor the
Tenant will:-
(a) [***]
(b) [***]
4.2.7 In consideration of the Landlord (at the request of the Surety)
having agreed to grant the Lease to the Tenant the Surety hereby
agrees with the Landlord that the Surety will execute the
Licence for Alterations or other deed containing such covenants
by the Surety in favour of the Superior Lessor as the Superior
Lessor may require
[***] - CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
[***] HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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4.2.8 Any obligation undertaken by [***] the Surety to [***] or [***]
with the Superior Lessor includes an obligation to ensure that
there is no delay in the approval of a draft of such [***] and
that the duly executed engrossment thereof is returned
unconditionally to the Landlord's Solicitors within five working
days from its receipt by [***]
5. THE WORKS
5.1 Subject to proper payment of its costs and other expenses pursuant to
clause 13.1 hereof the Landlord will use its reasonable endeavours to
obtain any necessary Planning Permission and practically complete the
Works within the Construction Period.
5.2 The Landlord and the Tenant will as soon as possible after the date
hereof meet to discuss the detail of the Works and an associated project
plan.
5.3 Following such meeting the Landlord will as soon as reasonably possible
produce to the Tenant for approval a project plan together with plans
and specifications showing the detail of the Works (such approval not to
be unreasonably withheld or delayed).
5.4 If requested to do so by the Tenant the Landlord will procure that the
Tenant is provided with copies of all Applications including all
accompanying drawings.
5.5 The Landlord may not make any material variation to the Works without
the Tenant's prior written consent (such consent not to be unreasonably
withheld or delayed) but otherwise may make such modifications as it may
reasonably require.
5.6 The Landlord shall permit the Tenant at all reasonable times to inspect
the progress of the Works and shall take proper account of reasonable
representations made by or on behalf of the Tenant in relation to the
Works.
5.7 The Landlord shall procure that the Tenant is given not less than 10
days notice of the intention of the Consultant to inspect the Works with
a view to the issue of a certificate that the Works are practically
completed.
5.8 The notice shall state the date and time of such inspection.
5.9 The Tenant's representative shall be permitted to accompany the
Consultant on the inspection if he attends at such date and time but not
otherwise.
5.10 The Consultant shall take proper account of any representations made by
the Tenant's representative during such inspection.
5.11 The Landlord will procure that a copy of the Consultant's certificate
that the Works are practically completed (together with any schedule
listing any defects) is given to the Tenant of the Tenant's solicitors
as soon as is reasonably practicable following its issue.
[***] - CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
[***] HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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6. TITLE
Title to the Premises will not be deduced but the Tenant will
nevertheless be deemed to take the Lease with full knowledge of the
terms and contents of and of any matter referred to in or deriving from
the Registered Title and will raise no requisition on them
7. MATTERS SUBJECT TO WHICH THE PREMISES ARE LET
7.1 The Premises are let subject to and as the case may be with the benefit
of the matters contained or referred to in the Lease
7.2 The Premises are also let subject to:
7.2.1 all matters registrable by any Competent Authority pursuant to
statute
7.2.2 all requirements notices orders or proposals (whether or not
subject to confirmation) of any Competent Authority
7.2.3 all matters disclosed or reasonably to be expected to be
disclosed by [***] or as the result of [***] and whether made in
person by writing or orally by or for the Tenant or which a
[***]
7.2.4 all notices served by [***]
8. THE LEASE
8.1 The Landlord will grant or procure the grant of and the Tenant will
accept the Lease or the later of:
8.1.1 [***] from and including the Date of Works Completion
8.1.2 [***] from and including the Compliance Date
8.2 The Lease will be for a term of approximately 5 years from and including
the date of completion and expiring upon 30th June 2006
8.3 The initial annual rent first reserved by the Lease will be [***] which
will be payable from and including the Date of Works Completion
8.4 The Tenant will on the date for completion of the Lease in accordance
with clause 8.1 pay to the Landlord:
8.4.1 the proportion of the rent first reserved by and then payable
under the Lease for the period from and including the Date of
Works Completion
[***] - CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
[***] HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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8.4.2 any other rents reserved by or money payable and then due under
the Lease calculated from and including the Date of Works
Completion
8.5
8.5.1 Engrossments of the Lease and counterpart will be prepared by
the Landlord's Solicitors and within three working days of being
called upon to do so the Tenant and the Surety will execute the
counterpart and return it unconditionally to the Landlord's
Solicitors
8.5.2 Without prejudice to any other provision of this agreement the
Tenant will indemnify the Landlord against any loss suffered by
the Landlord resulting from any failure by the Tenant or the
Surety to comply with the provisions of clause 8.6.1
9. POSSESSION
9.1 Vacant possession of the Premises will be given to the Tenant on
completion of the Lease
9.2 This agreement is an executory agreement only and will not operate or be
deemed to operate as a demise of the Premises
10. ALIENATION
The benefit of this agreement is [***] and the [***] will not [***] its
interest under this agreement or any part thereof or otherwise dispose
of such interest or any part thereof and the Tenant named herein will
[***] the Lease
11. ACKNOWLEDGMENT AND INTEREST
The Tenant acknowledges and agrees that:
11.1 The obligations of the Landlord contained in this agreement are personal
to Xxxxx Vaccines Limited and to any other party giving written notice
to the Tenant at any time that such party has personally assumed those
obligations
11.2 Without prejudice to any other right remedy or power of the Landlord if
any sums have become due from the Tenant to the Landlord under this
agreement but remain unpaid for a period exceeding [***] the Tenant will
pay [***] to the Landlord [***] at [***] rate ([***] any judgment) from
the date when they become due until payment thereof calculated on a
daily basis and [***]
[***] - CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
[***] HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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12. TERMINATION
If:
12.1 there is any breach of the obligations of the Tenant and/or the Surety
under this agreement which (if capable of remedy) is not remedied by the
Tenant and/or the Surety within such reasonable period as the Landlord
stipulates or
12.2 the Tenant and/or the Surety (being a body corporate) is unable to pay
its debts (as defined in section 123 of the Insolvency Act 1986) or has
a winding-up petition or petition for an administration order presented
against it or passes a winding-up resolution (other than in connection
with a members' voluntary winding-up for the purposes of an amalgamation
or reconstruction which has the prior written approval of the Landlord)
or calls a meeting of its creditors to consider a resolution that it be
wound up voluntarily or resolves to present its own winding-up petition
or is wound up (whether in England or elsewhere) or the directors or
shareholders of the Tenant or the Surety resolve to present a petition
for an administration order in respect of the Tenant or the Surety (as
the case may be) or an administrative receiver or a receiver or a
receiver and manager is appointed in respect of the property or any part
thereof of the Tenant or the Surety or
12.3 the Tenant and/or the Surety (being a body corporate) calls or a nominee
calls on its behalf a meeting of its creditors or any of them or makes
an application to the court under section 425 of the Companies Xxx 0000
or submits to its creditors or any of them a proposal pursuant to Part I
of the Insolvency Act 1986 or enters into any arrangement scheme
compromise moratorium or composition with its creditors or any of them
(whether pursuant to Part I of the Insolvency Xxx 0000 or otherwise) or
12.4 the Tenant and/or the Surety (being an individual) makes an application
to the court for an interim order under Part VIII of the Insolvency Xxx
0000 or convenes a meeting of his creditors or any of them or enters
into any arrangement scheme compromise moratorium or composition with
his creditors or any of them (whether pursuant to Part VIII of the
Insolvency Xxx 0000 or otherwise) or has a bankruptcy petition presented
against him or is adjudged bankrupt (whether in England or elsewhere)
THEN and in any such case the Landlord may by notice in writing to the
Tenant at any time thereafter terminate this agreement (without
prejudice to any right or remedy of any party in respect of any
antecedent breach of this agreement and without prejudice to any
continuing obligations of the Surety under this agreement)
12.5 the Conditions Precedent and Planning Conditions are not satisfied by
30th June 2006
13. COSTS AND INDEMNITY
13.1 The [***] will pay to the [***] forthwith upon demand all proper costs
and expenses (including professional fees) of the [***] associated with
[***]
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[***] HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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13.2 The Tenant will indemnify the Landlord against all actions proceedings
claims demands losses costs expenses damages and liability (including
any liability for any injury to any person or damage to any land or
other property) arising directly or indirectly from any obligation of
the Landlord or any breach of any obligation of the Tenant under this
agreement or any act or omission of the Tenant or [***]
14. [***]
14.1 All sums payable under the terms of this agreement are [***] in respect
thereof howsoever arising and the Tenant will pay to the Landlord all
[***] for which the Landlord is liable to [***] in relation to any
supply made or deemed to be made for [***] purposes pursuant to this
agreement
14.2 The Tenant does not intend or expect the Premises to be occupied by it
or a person that is connected with the Tenant as determined in
accordance with section [***] other than wholly or mainly for eligible
purposes (within the meaning of paragraph [***])
14.3 The Tenant represents warrants and undertakes to and with the Landlord
that the statement in clause 14.2 is at the date of this agreement and
will be at the date of completion of the Lease true and correct in all
respects
15. SURETY
15.1 In consideration of the Landlord entering into this agreement at the
request of the Surety the Surety will procure the observance and
performance of all the obligations of the Tenant under this agreement
and in the case of any default the Surety will observe and perform such
obligations as if the Surety instead of the Tenant were liable therefor
as a principal obligor and not merely as a surety and the Surety agrees
with the Landlord as a primary obligation to keep the Landlord
indemnified on demand against all losses damages costs and expenses
incurred by the Landlord as a result of any failure by the Tenant to
observe and perform such obligations or as a result of any obligation of
the Tenant under this agreement being or becoming unenforceable
15.2 If this agreement is disclaimed by or on behalf of the Tenant or is
terminated in relation to the Tenant pursuant to clause 12 the Surety
will (if so required by the Landlord by written notice within three
months after such disclaimer or after the date of the Landlord's notice
of termination under clause 12 (as the case may be)) enter into a new
agreement with the Landlord containing the same conditions and
provisions as this agreement (except this clause 15) and the new
agreement will take effect from the date of the disclaimer or such
notice of termination and in such case the Surety will [***] pay the
Landlord's [***] in connection with such agreement
15.3 The insolvency of the Tenant will not affect the liability of the Surety
under this agreement and any money received or recovered by the Landlord
from the Surety may be placed in a separate or suspense account by the
Landlord without any obligation on the Landlord to apply it in or
towards the discharge of the Tenant's obligations under this
[***] - CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
[***] HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
12
14
agreement so as to preserve the Landlord's right to prove in any
insolvency of the Tenant in respect of the whole of the Tenant's
indebtedness to the Landlord under this agreement
15.4 The obligations of the Surety under this agreement are in addition to
any other right or remedy of the Landlord and will not be discharged
diminished or in any way affected by:-
15.4.1 any time or indulgence granted by the Landlord to the Tenant or
any neglect or forbearance of the Landlord in enforcing the
obligations of the Tenant under this agreement
15.4.2 any variation of this agreement or other act omission matter or
thing (other than a release by deed given by the Landlord) by
which but for this provision the obligations of the Surety under
this agreement would have been so discharged diminished or
affected
16. DISPUTES
Any dispute arising under this Agreement is to be resolved by means of
the dispute resolution procedure set out in the Shared Services
Agreement dated on or about the date of this Agreement and made between
the Landlord and the Tenant.
17. JURISDICTION
17.1 This agreement will in all respects be governed by and construed in
accordance with English law and the parties irrevocably submit to the
exclusive jurisdiction of the English courts
17.2 The address for service upon the Surety in England and Wales is c/o
[***]
18. THIRD PARTY RIGHTS
Nothing in this agreement is intended to confer on any person any right
to enforce any term of this agreement which that person would not have
had but for the [***]
IN WITNESS whereof this agreement has been duly executed as a deed (but not
delivered until) the day and year first before written
[***] - CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
[***] HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
13
15
SCHEDULE 1
STANDARD CONDITIONS
1. Throughout the conditions references to property being sold are to be
construed as references to the Premises
2. Conditions 1.4 2.2 3.4 4.2 4.3.2 4.5.2 4.5.5 5 6.3.2 6.5 6.7 6.8.2(b)
8.2.4 8.3 and 9 do not apply
3. Condition 1.1.1(f) is deleted and wherever the word "contract" appears
in the Standard Conditions (save where followed by the word "rate") it
is replaced by the word "agreement"
4. In condition 1.1.1(g) the "contract rate" is [***] per annum above the
base rate from time to time of Lloyds TSB Bank Plc
5. In condition 1.3.5 "5.00 pm" is substituted for "4.00 pm" and the words
"before 5.00 pm" are added after the words "treated as having been
received
6. In condition 1.3.6 "5.00 pm" is substituted for "4.00 pm" and the words
"(d) by fax: if sent before 5.00 pm on a working day the day of despatch
but otherwise on the first working day after despatch" are added at the
end
7. In condition 3.1.2 the words "(f) overriding interests (as defined in
Section 70(l) of the Land Registration Act 1925)" are added at the end
8. In condition 4.1 the words "4.1.5 If the buyer persists in any valid
requisition with which the seller is unable or unwilling on reasonable
grounds to deal satisfactorily and does not withdraw it within five
working days of being required so to do the seller may by notice to the
buyer and notwithstanding any intermediate negotiation or litigation
rescind the agreement" are added at the end
9. In conditions 6.1.2 and 6.1.3 "12 noon" is substituted for "2.00 pm"
10. In condition 7.1.1 the words "or in the negotiations leading to it" and
"or was" are deleted
[***] - CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
[***] HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
Sch. 1-1
16
SCHEDULE 2
THE WORKS
Such works as are necessary to:
1. Create a goods lift and staircase to first floor level within the
Premises; and
2. Re-configure corridor and office space at first floor level within the
Premises.
[***] - CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
[***] HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
Sch. 2-1
17
EXECUTED as a Deed by XXXXX )
VACCINES LIMITED )
in the presence of:- )
Director /s/ XXXX XXXXXX
Director/Secretary /s/ C.S.W. XXXXXXXXX
[***] - CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
[***] HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
18
EXECUTED as a Deed by AVIRON )
UK LIMITED in the presence of:- )
Director /s/ Xxx Xxxxxx
Director/Secretary /s/ Xxxx Xxxxxxx
EXECUTED as a Deed by AVIRON )
in the presence of:- )
Director /s/ Xxxx Xxxxxxx
Director/Secretary /s/ Xxx Xxxxxx
[***] - CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
[***] HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
