EXHIBIT 10.43
SUBLEASE
Between
Life Medical Sciences, Inc.
The Tenant
And
Palatin Leased Premises, Inc.
The Subtenant
For Leased Premsies
Xxxxx 000
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxxxx
July 31, 1996
SUBLEASE dated as of July 31, 1996 between Life Medical Sciences, Inc., a
Delaware corporation, with its principal office at 000 Xxxxxxxx Xxxxxx, Xxxxxx,
Xxx Xxxxxx 00000 (the "Tenant") and Palatin Technologies, Inc., with its
principal office at 000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxx Xxxxxx 00000
(the "Subtenant").
Background: The Tenant and Carnegie 214 Associates Limited Partnership, a
New Jersey limited partnership, with its principal office at Suite 100, 000
Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxxxx 00000 (the "Landlord") are parties to a
Lease and Lease Agreement, dated as of May 27, 1992, as amended by an Amendment,
dated as of October 28, 1993 (as so amended, the "Xxxxxxxxx"), providing for the
lease of certain Leased Premises known as Xxxxx 000, 000 Xxxxxxxx Xxxxxx,
Xxxxxxxxx, Xxx Xxxxxx 00000 by the Landlord to the Tenant as more particularly
described in the Xxxxxxxxx as the New Leased Space and Additional Leased Space
and shown by the cross-hatching on the diagram attached hereto as Exhibit A (the
"Leased Premises"). A true copy of the Xxxxxxxxx has been provided to
Subtenant, regarding which the Subtenant hereby acknowledges receipt. The
Tenant and the Subtenant desire that the Tenant sublease the Leased Premises to
the Subtenant.
Subject to all the terms and conditions set forth below, the Tenant and the
Subtenant hereby agree as follows:
1 Definitions. Certain capitalized terms used in this Sublease are
-----------
defined immediately below or in the Xxxxxxxxx and, as used in this Sublease,
those terms and phrases shall have the respective meanings assigned or referred
to in this Sublease or the Xxxxxxxxx:
1.1 "Sublease" means this Sublease, as it may be amended.
1.2 "Sublease Basic Rent" is defined in subsection 0 of this Sublease.
1.3 "Sublease Commencement Date" means August 1, 1996.
1.4 "Sublease Event of Default" is defined in section 7.8.1 of this
Sublease.
1.5 "Sublease Rent" means Sublease Basic Rent and all Additional Rent.
1.6 "Sublease Security Deposit" is defined in section 7.13 of this
Sublease.
1.7 "Sublease Term" is defined in section 0 of this Sublease.
-1-
2 Sublease of the Leased Premises.
-------------------------------
2.1 The Tenant hereby leases to the Subtenant, and the Subtenant hereby
accepts and leases from the Tenant, the Leased Premises during the Sublease
Term, together with all of Tenant's non-exclusive right to use the Common
Facilities during the Sublease Term for itself, its employees, other agents and
Guests in common with the Landlord, any tenants of Other Leased Premises, any of
their respective employees, other agents and guests and such other persons as
the Landlord may, except as otherwise set forth in this Sublease and the
Xxxxxxxxx, in the Landlord's sole discretion, determine from time to time.
3 Sublease Rent.
-------------
3.1 The Subtenant shall punctually pay the Sublease Rent for the Leased
Premises for the Sublease Term in the amounts and at the times set forth below,
without xxxx or other demand and without any offset, deduction or abatement
whatsoever, except as otherwise provided in the Xxxxxxxxx. The Subtenant shall
pay the Sublease Rent directly to the Landlord at its address set forth above
(or such other address as Subtenant may be notified by Landlord or Tenant).
3.2 The Sublease Basic Rent for the Leased Premises during the Sublease
Term shall be the aggregate sum of Ninety-Seven Thousand Two Hundred Sixty Five
($97,265.00) as set forth in the Xxxxxxxxx for the corresponding time period.
The Subtenant shall punctually pay the Sublease Basic Rent in equal monthly
installments in advance on the 1st day of each month during the Sublease Term.
The Subtenant shall also pay as additional rent ("Additional Rent") hereunder,
all additional rent and other charges and expenses required to be made by Tenant
under the Xxxxxxxxx attributable to the Leased Premises during the Sublease
Term. The Additional Rent for the Leased Premises during the Sublease Term shall
be promptly paid by the Subtenant in the respective amounts at the time such
payment becomes due pursuant to the terms of the Xxxxxxxxx. To the extent that
the Tenant may become obligated to pay any late charge or late payment interest
to the Landlord pursuant to the Xxxxxxxxx with respect to any Rent due for the
Sublease Term by reason of Subtenant's failure to timely pay same, the Subtenant
shall pay any such late charge or late payment interest on demand of Landlord or
Tenant immediately.
3.3 If the Commencement Date shall not occur on the first day of a
calendar month, or the Expiration Date shall not occur on the last day of a
calendar month, Sublease Rent for the month in which the Commencement Date or
Expiration Date occurs, as the case may be, shall be prorated on a per diem
basis. Notwith-
-2-
standing anything to the contrary herein, if the Expiration Date is one day
prior to the end of a given month, the Sublease Rent shall not be prorated and
Subtenant shall pay the whole Sublease Rent for the month. This provision shall
survive the expiration of the Sublease Term.
4 Sublease Term. The Sublease Term shall commence on the Sublease
-------------
Commencement Date and shall continue until July 30, 1997, unless sooner
terminated in accordance with this Sublease.
5 Condition of the Leased Premises. The Subtenant hereby accepts the
Leased Premises in its AS IS condition on the Sublease Commencement Date without
any obligation on Tenant's part to prepare or alter the Leased Premises for
Subtenant's occupancy. Any expense incurred on, at or for the Leased Premises
during the Sublease Term shall be borne by the Subtenant.
6 Landlord's Obligation. The Tenant shall have no responsibility of any
kind for any default of or by Landlord under the Xxxxxxxxx. So long as a
Sublease Event of Default shall not have occurred or be continuing, the
Subtenant shall and may peaceably and quietly have, hold and enjoy the Leased
Premises during the Sublease Term without interference by or through the Tenant,
subject to the terms of this Sublease. Tenant shall cooperate with Subtenant to
cause Landlord to perform its obligations under the Xxxxxxxxx with respect to
the Leased Premises during the Sublease Term. Tenant, however, shall not be
required to incur any expense or enter into any litigation in order to secure
Landlord's performance. If Landlord shall default in any of its obligations with
respect to the Leased Premises, Subtenant shall be entitled to participate with
Tenant in the enforcement of Tenant's rights against Landlord (and in any
recovery or relief obtained). If, after written request from Subtenant, Tenant
shall be unwilling to take appropriate action for the enforcement of Tenant's
rights against Landlord, Subtenant shall have the right to take such action in
its own name and, for that purpose, all of the rights of Tenant to enforce the
obligations of Landlord under the Xxxxxxxxx are hereby conferred upon and are
assigned to Subtenant and Subtenant hereby is subrogated to such rights
(including, without limitation, the benefit of any recovery or relief).
7 Subtenant's Obligations and Rights. The Subtenant shall be bound by and
shall timely perform all the Tenant's obligations due the Landlord under the
Xxxxxxxxx with respect to the Leased Premises during the Sublease Term, except
as specifically modified in this Sublease:
7.1 The Subtenant shall use the Leased Premises during the Sublease
Term exclusively as a general business office, and for
-3-
no other use.
7.2 The Subtenant shall not make any alterations, improvements or other
modifications to the Leased Premises without the prior written consent of the
Tenant in each instance (which consent shall not be unreasonably withheld or
delayed), in addition to the other requirements set forth in the Xxxxxxxxx.
7.3 In addition to its obligations under section 13 of the Xxxxxxxxx,
the Subtenant shall allow the Tenant the same rights of entry and access as are
reserved to the Landlord.
7.4 In addition to its obligations under section 14 of the Xxxxxxxxx,
the Subtenant's policies of insurance shall also name the Tenant as an
additional insured and certificates or copies of the policies of the Subtenant's
insurer shall be furnished to the Tenant.
7.5 In addition to its obligations and waivers under section 16 of the
Xxxxxxxxx, the Subtenant's waivers shall also be for the benefit of the Tenant,
its agents and employees.
7.6 The Subtenant may not assign this Sublease or further sublet, or
license the use of, the Leased Premises. Notwithstanding the foregoing: (1)
provided Subtenant obtains the consent of the Landlord, Subtenant may (without
Tenant's consent and/or prior notice) sublease all or part of the Leased
Premises or assign all of its interest in this Sublease to a parent, subsidiary
or affiliate; (2) Subtenant shall remain liable under this Agreement, jointly
and severally with any proposed assignee or sublessee, for the timely
performance of all obligations of Subtenant set forth in this Sublease; and (3)
Tenant shall not unreasonably withhold its consent to any other assignment of
this Sublease or other sublease of all or part of the Leased Premises, if
Subtenant obtains Landlord's consent to such other assignment or sublease.
7.7 Upon the termination or expiration of the Sublease Term, Subtenant
shall vacate the Leased Premises in the condition required by the terms of the
Xxxxxxxxx upon its termination.
7.8 The occurrence of any of the following events shall constitute an
Event of Default under this Sublease:
7.8.1 Section 22 of the Xxxxxxxxx is incorporated herein by
reference with respect to the Sublease Term, with the following substitutions:
(i) "Sublease Event of Default" for "Event of Default", (ii) "Sublease" for
"Agreement", (iii) "Subtenant" for "Tenant", (iv) "Sublease Basic Rent" for
"Basic Rent" and (v) "Tenant" for "Landlord"; and
-4-
7.8.2 the occurrence of an Event of Default with respect to the
Sublease Term under the terms of the Xxxxxxxxx as incorporated herein.
7.9 Upon the occurrence of a Sublease Event of Default, the Tenant
shall have all the same rights and remedies with respect to the Leased Premises
and the Subtenant and the Sublease Term under this Sublease as the Landlord has
with respect to the Tenant following the occurrence of an Event of Default under
the Xxxxxxxxx except that with respect to any grace or notice periods, if any,
set forth in the Xxxxxxxxx for curing defaults by Tenant thereunder, the same
shall be reduced for purposes of this Sublease by 2 days with respect to the
cure period set forth in Subsection 22.1 and by 3 days with respect to the cure
period set forth in Subsection 22.3.
7.10 This Sublease and the estate, interest and rights hereby created
for the benefit of the Subtenant are, and shall always be, subordinate to the
Xxxxxxxxx and to any interest to which the Xxxxxxxxx and the estate, interest
and rights thereby created are subordinated in the Xxxxxxxxx.
7.11 The Subtenant hereby indemnifies the Tenant to the same extent as
the Tenant has indemnified the Landlord under section 27 of the Xxxxxxxxx;
provided, however that said indemnification by Subtenant shall only apply to
events occurring during the Sublease Term.
7.12 Section 28 of the Xxxxxxxxx is incorporated herein by reference,
with the following substitutions: (i) "Tenant" for "Landlord", "Subtenant" for
"Tenant", "Sublease Rent" for "Rent", "Sublease Term" for "Term" and "Sublease"
for "Agreement".
7.13 (a) The Subtenant shall pay to the Tenant upon execution and
delivery of this Sublease the sum of $89,159.58 as a Sublease Security Deposit
(the "Sublease Security Deposit") to be held by the Tenant as security for the
Subtenant's performance of all the Subtenant's obligations under this Sublease.
Any interest earned on the Sublease Security Deposit shall belong to the
Subtenant. The Subtenant shall not transfer or encumber its interest in the
Sublease Security Deposit.
(b) In lieu of cash, Subtenant may deposit with Tenant an
unconditional, transferable, irrevocable, sight draft letter of credit
substantially in the form annexed as Exhibit "C" in the sum of $89,159.58 (the
"Letter of Credit"), as the Sublease Security Deposit. The Letter of Credit
shall have a maturity date of no earlier than August 15, 1997 (the "Maturity
Date"). Subtenant understands and agrees that upon receipt of notice from the
issuing bank to the effect that the Letter of Credit will expire or be
terminated prior to the Maturity Date, unless Tenant
-5-
shall have received a replacement letter of credit in form and issued by a bank
acceptable to Landlord on or before ten (10) days prior to such early expiration
date, the Letter of Credit shall be drawn down by Tenant and the proceeds held
by Tenant without interest to Subtenant as the security deposit required by this
Subsection 7.13.
(c) If Subtenant is in default, after applicable notices and
cure periods provided for, the Tenant may, in its sole discretion, apply the
Sublease Security Deposit (or draw upon the Letter of Credit, as the case may
be) to cure the Sublease Event of Default. If any such application is made due
to a default (other than for a default in the payment of Sublease Rent), upon
notice by the Tenant to the Subtenant, the Subtenant shall promptly replace the
amount so applied in cash (regardless if Subtenant initially elects to post a
Letter of Credit). The Subtenant will not look to the Landlord or to any
foreclosing mortgagee of the Property, the Building, the Common Facilities or
any interest therein for such return of the balance of the Sublease Security
Deposit, unless the respective person has expressly assumed the Tenant's
obligations under this Sublease in writing or has actually received the balance
of the Sublease.
(d) Provided Subtenant surrenders the Leased Premises in
accordance with Article 21 of the Xxxxxxxxx, Tenant shall return to Subtenant
the Security Deposit Amount (by delivering cash or the Letter of Credit, as the
case may be) within fourteen (14) days of the surrender date.
7.14 All notices contemplated by, permitted or required by this Sublease
shall be in writing. All notices required by this Sublease shall be personally
delivered or forwarded by certified mail--return receipt requested, addressed to
the intended party at its address first set forth above or such other address as
either party may indicate from time to time by notice given as aforesaid with
copies to each party's counsel as follows:
-6-
If to Tenant:
Xxxxx Xxxx Xxxxx Constant & Xxxxxxxx
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
If to Subtenant:
Rosenman & Colin LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
All notices required under this Sublease shall be deemed given two days after
their deposit, properly addressed and postage prepaid, in a postal depository or
upon personal delivery to the intended party.
7.15 Subtenant shall not be bound by any amendments to the Xxxxxxxxx
that increase Subtenant's obligations or decrease Subtenant's rights after the
date hereof.
7.16 If pursuant to either Article 15 or 16 of the Xxxxxxxxx,
conditions exist which would allow Tenant to terminate the Xxxxxxxxx, Subtenant
shall have the right to terminate this Sublease under the same conditions.
7.17 Subtenant may, at any time and from time to time, deal directly
with Landlord on any matter involving the Leased Premises but Subtenant shall
not have the authority or power to bind Tenant in regard to any such matter nor
create any obligation on the part of Tenant.
8 Unincorporated Terms. The following provisions of the Xxxxxxxxx shall
--------------------
not be incorporated herein by reference and shall be deemed to be inapplicable,
as between Tenant and Subtenant, with respect to this Sublease: Sections 3.2,
3.3; Articles 4, 5, 29 and 30.
9 Tenant's Obligations. Tenant shall promptly furnish Subtenant with a
--------------------
copy of all statements and notices, including those relating to default, given
to Tenant by Landlord pursuant to the Xxxxxxxxx.
9.1 Tenant covenants that it has not taken any action to cause the
early termination of the Xxxxxxxxx and, as long as Subtenant is not in default,
Tenant will not take any action to cause the termination of this Sublease prior
to the expiration of the Sublease Term.
-7-
9.2 Tenant represents and warrants that (a) Exhibit B hereto is a true
---------
and correct copy of the Xxxxxxxxx, (b) except as aforesaid, the Xxxxxxxxx has
not been modified or amended and is in full force and effect, (c) Tenant has not
received any notice that any default exists under the Xxxxxxxxx which remains
uncured, (d) Tenant has no actual knowledge of any event or circumstance which,
but for the passage of time or other circumstance, would constitute a default
under the Xxxxxxxxx, (e) Tenant has full right and authority to execute and
deliver this Sublease, (f) Tenant has not heretofore assigned, pledged,
hypothecated or otherwise transferred or encumbered the Leased Premises or its
interest in the Leased Premises, except pursuant to a sublease that is no longer
of any force or effect as of the start of the Sublease Term, (g) to the best of
Tenant's knowledge, all alterations undertaken by Tenant or on behalf of Tenant
with respect to the Leased Premises were completed in accordance with all
applicable legal and insurance requirements and the terms and conditions of the
Xxxxxxxxx, (h) to the best of Tenant's knowledge there is no asbestos in the
Leased Premises, (i) the Commencement Date of the Xxxxxxxxx is July 21, 1992 and
(j) the Expiration Date of the Xxxxxxxxx is July 31, 1997.
10 Waiver of Redemption and of Jury Trial. To the extent permitted by law,
Subtenant hereby waives service of notice of intention to re-enter. Subtenant
(for itself and for persons claiming through or under Subtenant) hereby
expressly waives any and all rights, under any present or future law, to redeem
the leased Premises or to a new trial, after re-entry by Tenant or after
issuance or entry of any warrant to dispossess in any summary proceeding or
otherwise to enforce the provisions hereof. If Tenant acquires possession of
the leased Premises by summary proceeding or in any other lawful manner, with or
without judicial proceeding, Tenant shall be deemed to have re-entered within
the meaning of this Section 10. To the full extent now or hereafter permitted
by law, Tenant and Subtenant waive trial by jury in any action or proceeding
brought by either against the other with respect to the leased Premises or to
any matter pertaining to this Sublease.
11 Brokers. Each party represents to the other that such party has not
-------
dealt with any person acting as a broker in connection with this Sublease. Each
party ("Indemnitor") agrees to indemnify and hold the other party ("Indemnitee")
harmless from and against any cost, loss, damages or other expense whatsoever,
including, but not limited to attorneys' fees, which the Indemnitee may incur by
reason of or in connection with any claim made by any real estate broker or
agent with whom the Indemnitor has dealt in connection with this Sublease;
12 Authorization. Each party represents to the other that the execution and
delivery of, the consummation of the transactions
-8-
contemplated by, and the performance of all its obligations under, this Sublease
have been duly authorized by such party's board of directors and, if necessary,
by such party's stockholders at meetings duly called and held on proper notice
for that purpose at which there were respective quorums present and voting
throughout; and no other approval, corporate, governmental or otherwise, is
required to authorize any of the foregoing or to give effect to such party's
execution and delivery of this Sublease; and
13 Effectiveness. The effectiveness of this Sublease is conditioned upon
-------------
the Tenant's receipt of the Landlord's written consent as and to the extent
provided in the Xxxxxxxxx.
14 Successors and Assigns. The terms, covenants and conditions contained in
----------------------
this Sublease shall bind and inure to the benefit of Tenant and Subtenant and
their respective successors and assigns.
15 Non-binding. This Sublease shall not be binding upon Tenant or Subtenant
-----------
until it has been executed by both parties and a copy thereof delivered to each
party.
IN WITNESS WHEREOF, the parties hereto have caused this Sublease to be
executed as of the date first above written.
TENANT:
Life Medical Sciences, Inc.
By
-----------------------------------------
-----------------------------------------
SUBTENANT:
Palatin Technologies, Inc.
By
-----------------------------------------
-----------------------------------------
-9-
