EXHIBIT 10.111
ASSIGNMENT AND ASSUMPTION OF LEASE
This Assignment and Assumption of Lease ("Assignment") is made as of
this 31st day of May, 2002, by and between Nexell of California, Inc., a
Delaware corporation ("Assignor") and Immuno-Designed Molecules, Inc., a
Massachusetts corporation ("Assignee").
RECITALS
A. That certain Industrial Lease (the "Lease") was entered into as of
the 11th day of October, 1994, between The Irvine Company ("Landlord") and
Xxxxxx Healthcare Corporation, a Delaware corporation ("Baxter"), as tenant, for
that certain building located at 9 Xxxxxx, in the City of Irvine, Orange County,
California (the "Premises"), for a term commencing on January 23, 1997 and
expiring on November 30, 2004 (the "Term"). A true and correct copy of the Lease
is attached hereto as Exhibit X.
X. Xxxxxx assigned the Lease to Assignor, formerly known as BIT
Acquisition Corp., pursuant to the terms of that certain Assignment and
Assumption of Lease by and between Baxter and Assignor dated December __ [sic],
1997, and that certain Asset Purchase Agreement dated October 10, 1997, by and
among Baxter (as seller), Assignor (as buyer) and VIMRX Pharmaceuticals, Inc.,
now known as Nexell Therapeutics Inc. ("NTI").
C. Assignor is a wholly owned subsidiary of NTI.
D. Pursuant to the terms of this Assignment, Assignor desires to assign
to Assignee and Assignee desires to assume from Assignor the Lease.
NOW, THEREFORE, for good and valuable consideration, receipt and
sufficiency of which is hereby acknowledged, and the mutual covenants contained
herein, the parties agree as follows:
1. Effective Date of Assignment. This Assignment will take effect and
Assignor shall give possession of the Premises to Assignee on the date that this
Assignment is fully executed by the parties and a Consent to Assignment in
substantially the same form as Exhibit B attached hereto (the "Consent") is
fully executed by the parties and by Landlord (the "Effective Date").
Notwithstanding any other provision contained herein, this Assignment shall not
be effective and the parties hereto shall have no rights or obligations
hereunder if the Effective Date does not occur on or before July 1, 2002.
2. Assignment and Assumption. As of the Effective Date and subject to
the terms, covenants, conditions and provisions of this Assignment:
a. Assignor assigns and transfers to Assignee all of its rights,
title, interests and obligations in, to and under the Lease; and
b. Assignee accepts the assignment of the interest of Assignor as
tenant under the Lease and assumes all rights, title, interests and obligations
of Assignor under the Lease accruing on or after the Effective Date and shall
perform, discharge, fulfill and observe all terms, obligations, covenants,
conditions and provisions of tenant under the Lease with the same force and
effect as if Assignee were the original tenant under the Lease.
3. Payment of Rent. Notwithstanding Subsection 2.b hereof, Assignor
shall pay all rent due under the Lease for the entire month of June, 2002.
Assignee shall pay and be responsible for all rent due under the Lease as of
July 1, 2002 and thereafter.
4. Post Assignment Occupancy by Assignor. Notwithstanding any other
provision of this Assignment, the parties agree that on and after the Effective
Date Assignor's wind down employees (not to exceed three persons) and advisors
shall have reasonable access to the Premises and use of related office equipment
as necessary to conduct the wind down of Assignor's operations, and that such
access and use shall be at no additional cost to Assignor.
5. Indemnity.
a. Assignee hereby covenants and agrees to protect, defend,
indemnify and hold harmless Assignor and NTI for, from and against any and all
claims, liabilities, losses, damages, costs and expenses (including reasonable
attorneys' and experts' fees and charges) resulting or arising from or in
connection with Assignee's failure to perform any obligations of the tenant
under the Lease with respect to any matters, events or conditions occurring on
or after the Effective Date. This provision shall survive any future subletting,
assignment or transfer of any interest in the Lease.
b. Assignor and NTI hereby covenant and agree to protect, defend,
indemnify and hold harmless Assignee for, from and against any and all claims,
liabilities, losses, damages, costs and expenses (including reasonable
attorneys' and experts' fees and charges) resulting or arising from or in
connection with Assignor's failure to perform any obligations of the tenant
under the Lease with respect to any matters, events or conditions occurring
before the Effective Date.
6. Default Under the Lease; Notice to Assignor. Assignee shall send to
Assignor copies of any and all default notices delivered to Assignee from the
Landlord promptly following Assignee's receipt of said notices.
7. No Default. Assignor hereby certifies to Assignee that, to its
actual knowledge, Assignor is not in default of its obligations under the Lease,
nor is Landlord in default of Landlord's obligations under the Lease.
8. Security Deposit. The parties acknowledge that Landlord does not
hold a security deposit from Assignor under the Lease.
9. Miscellaneous.
a. Attorneys' Fees. If there is any legal or arbitration action or
proceeding between Assignor and Assignee to enforce any provision of this
Assignment or to protect or establish any right or remedy of Assignor or
Assignee, the unsuccessful party to such action or proceeding will pay to the
prevailing party all costs and expenses, including reasonable attorneys' and
experts' fees incurred by such prevailing party in such action or proceeding or
in any appearance in connection therewith, and if such prevailing party recovers
a judgment in any action, proceeding or appeal, such costs, expenses and
attorneys' and experts' fees will be determined by the court or arbitration
panel handling the proceeding and will be included in and as part of such
judgment.
b. Notice. Any notice or other communications required or permitted
under this Assignment will be in writing and either served personally or sent by
first class mail, certified return receipt requested, postage prepaid and
addressed to the other party at the party's address shown below. Any party may
change its address by notifying the other party of the change of address.
If to Assignor:
--------------
c/o Xxxxx Xxx
00 Xxxxxxxxxxx
Xxxxxx, XX 00000
With a copy to:
--------------
Xxxxx Xxxx LLP
000 Xxxxxxxxxx Xx., X.X.
Xxxxxxxxxx, X.X. 00000-0000
Attn: Xxxx X. Xxxxx, Esq.
If to Assignee:
--------------
9 Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
With a copy to:
--------------
Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxxx, Esq.
c. Successors. This Assignment shall be binding on and inure to the
benefit of the parties and their successors and assigns.
d. Entire Agreement. This Assignment constitutes the entire
agreement between the parties hereto with respect to the assignment of the Lease
and may not be modified except by an instrument in writing signed by the party
to be charged.
e. Governing Law. This Assignment will be governed by the laws of
the State of California.
f. Time. The parties hereto agree that time is strictly of the
essence with respect to each and every term, condition, obligation and provision
hereof.
g. Waiver. No failure of any party to enforce any term of this
Assignment shall be deemed to be a waiver of that party's right to enforce that
term.
h. Construction. The parties agree that this Assignment will be
construed to effectuate the normal and reasonable expectations of a
sophisticated Landlord, Assignor and Assignee. No party will take actions that
would frustrate the other's reasonable expectations concerning the benefits of
this Assignment. The parties further agree that this Assignment expresses the
terms of their agreement and that it should not be interpreted in favor of or
against any party.
i. Authority. Each individual executing this Assignment on behalf
of a partnership or corporation represents that he or she is duly authorized to
execute and deliver this Assignment on behalf of the partnership and/or
corporation.
j. Counterparts. This Assignment may be executed in as many
counterparts, including signatures on facsimile counterparts, as may be
determined necessary or convenient, and by the different parties hereto on
separate counterparts, each of which when so executed shall be deemed an
original, but all such counterparts shall constitute but one and the same
instrument.
IN WITNESS WHEREOF, this Assignment has been entered into as of the day
and year first above written.
NEXELL OF CALIFORNIA, INC.,
a Delaware corporation
By:____________________________________
Name: Xxxxxxx X. Xxxxxxxx, Xx.
Title: President and Chief Executive Officer
By:____________________________________
Name: Xxxxx X. Xxx
Title: Secretary
IMMUNO-DESIGNED MOLECULES, INC.
a Massachusetts corporation
By:____________________________________
Name:
Title:
By:____________________________________
Name:
Title:
EXHIBIT A
[COPY OF LEASE TO BE ATTACHED]
EXHIBIT B
THE CONSENT
CONSENT TO ASSIGNMENT
I. PARTIES AND DATES.
This Consent to Assignment ("Consent") dated June _____, 2002 is
by and among THE IRVINE COMPANY ("Landlord"), NEXELL OF CALIFORNIA, INC., a
Delaware corporation ("Assignor"), and IMMUNO-DESIGNED MOLECULES, INC., a
Massachusetts corporation ("Assignee").
II. RECITALS.
A. On October 11, 1994, Landlord and Xxxxxx Healthcare
Corporation ("Baxter") entered into an Industrial Lease (the "Lease") for space
in a building owned by Landlord located at 0 Xxxxxx, Xxxxxx, Xxxxxxxxxx
("Premises").
X. Xxxxxx assigned the Lease to Assignor, formerly known as BIT
Acquisition corp., ("BAC") pursuant to the terms of that certain Asset Purchase
Agreement dated as of October 10, 1997. Landlord consented to the assignment of
Lease from Baxter to BAC as set forth in the certain Landlord Consent & Estoppel
Certificate dated October 11, 1994.
C. BAC has, on two occasions, amended its Certificate of
Incorporation and is now known as Nexell of California, Inc., referred to in
this Consent as Assignor.
D. Assignor has entered into an Assignment and Assumption of
Lease ("Assignment") with Immuno-Designed Molecules, Inc., a Massachusetts
corporation ("Assignee") dated as of May 31, 2002 pursuant to which Assignor
assigns its entire interest in the Premises to Assignee. The Assignment
contemplates that Landlord will execute this Consent to Assignment in order to
give its consent thereto.
NOW, THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties agree as follows:
III. LANDLORD CONFIRMATIONS
Landlord hereby confirms to Tenant that:
A. Landlord is the landlord under the Lease and the Lease is in
full force and effect in accordance with its terms. The term of the Lease
expires November 30, 2004.
B. To the best of Landlord's actual knowledge, without having
conducted any inspection of the Premises or being under any obligation to do so,
Assignor is not in default of its obligations under the Lease. As used herein,
"Landlord's actual knowledge" refers to the
actual knowledge of Xxx Xxxxx, property manager for Insignia\Esg, Inc.,
Landlord's managing agent for the Premises.
C. Tenant has paid rent and other charges due under the Lease
through June 1, 2002. There has been no prepayment of rent more than one month
in advance.
IV. CONSENT TO ASSIGNMENT.
Landlord consents to Assignment to Assignee of the Premises
pursuant to the terms of the Assignment. Assignor and Assignee agree that this
Consent is conditioned upon their agreement that:
A. The Assignment is expressly subject to the provisions of the
Lease, a copy of which Assignee acknowledges it has received.
B. The Assignment constitutes the entire agreement between
Assignor and Assignee with respect to the Premises and there is no other
agreement, written or oral with respect to Assignee's use, occupancy of the
Premises or the payment of any sums by Assignee to Assignor related to the
Premises.
C. Assignor's obligations under the Lease shall not be affected
by this Consent.
D. Landlord shall be entitled to receive a portion of the profits
derived by Tenant, if any, from the assignment in accordance with the provisions
of the Lease.
E. The provisions of the Lease respecting assignment and
subletting are not waived with respect to future assignment or sublease.
F. Assignee is not claiming any interest in a right belonging
solely to Assignor pursuant to the Lease.
V. ASSIGNEE'S PRINCIPAL PLACE OF BUSINESS.
The address of Subtenant's principal place of business is:
Immuno-Designed Molecules, Inc.
0 Xxxxxx
Xxxxx 000
Xxxxxx, XX 00000
2
With a copy to: Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxxx, Esq.
VI. GENERAL.
A. EFFECT OF ASSIGNMENT. The Lease and Assignor's obligations to
Landlord shall not be deemed to have been modified by this Consent.
B. ENTIRE AGREEMENT. This Consent embodies the entire
understanding between Landlord, Assignor and Assignee with respect to the
Assignment and can be changed only by an instrument in writing signed by the
party against whom enforcement is sought.
C. COUNTERPARTS. If this Consent is executed in counterparts,
each is hereby declared to be an original; all, however, shall constitute but
one in the same Consent. In any action or proceeding, any photographic,
photostatic, or other copy of this Consent may be introduced into evidence
without foundation.
D. DEFINED TERMS. All words commencing with initial capital
letters in this Consent and defined in the Lease shall have the same meaning in
this Consent as in the Lease.
E. CORPORATE AUTHORITY. Each individual executing this Consent
for a corporation represents that he or she is duly authorized to execute and
deliver this Consent on behalf of the corporation and that this Consent is
binding upon the corporation in accordance with its terms.
F. ATTORNEYS' FEES. The provisions of the Lease respecting
payment of attorneys' fees shall also apply to this Consent.
3
VII. EXECUTION.
Landlord, Assignor and Assignee have entered into this Consent as of
the date set forth above.
ASSIGNOR: ASSIGNEE:
NEXELL OF CALIFORNIA, INC., IMMUNO-DESIGNED MOLECULES, INC.,
a Delaware corporation a Massachusetts corporation
By___________________________________ By__________________________________
Title________________________________ Title_______________________________
By___________________________________ By__________________________________
Title________________________________ Title_______________________________
LANDLORD:
THE IRVINE COMPANY
By__________________________________________
Xxxxxx X. Xxxxxxx
Vice President, Office Properties
By__________________________________________
Xxxxxxxxxxx Xxxxx
Vice President, Office Properties
4
