Exhibit 10.6
SUBLEASE AGREEMENT
THIS SUBLEASE AGREEMENT ("Sublease") is made this 11th day of September,
2000, by and between Environ Products, Inc., a Pennsylvania corporation with a
principal place of business at 000 Xxxxx Xxxx Xxxxx, Xxxxxxx, XX 00000
("Sublessor"), and Adolor Corporation, a Delaware corporation with a principal
place of business at 000 Xxxxxxxxxxxx Xxxx, Xxxxxxx, XX 00000 ("Sublessee").
WHEREAS, Sublessor is the lessee of space in a building located at 000
Xxxxxxxxxxxx Xxxxx, Xxxxx, XX 00000 (the "Premises"), pursuant to that certain
lease agreement (the "Prime Lease") dated August 29, 1996 by and between
Sublessor, as tenant ("Tenant"), and M3 Partners, L.P., as landlord (the
"Landlord") (a copy of the Prime Lease is attached hereto and incorporated
herein as Exhibit "A");
WHEREAS, the legal description of the Premises is contained in Exhibit A to
the Prime Lease which is incorporated into and made a part of this Sublease; and
WHEREAS, Sublessor desires to lease the Premises to Sublessee and Sublessee
desires to lease the Premises from Sublessor all pursuant to the terms and
conditions contained herein.
NOW THEREFORE, intending to be legally bound hereby, in consideration of
the mutual covenants contained herein and the background set forth above, the
parties hereto hereby agree as follows:
1. Premises. Sublessor hereby leases to Sublessee, and Sublessee hereby leases
from Sublessor the Premises, including the building located thereon (the
"Building") and the furniture, murals and wall hangings located in the Building
as set forth on Exhibit "B" hereto. Sublessee has had the opportunity to inspect
the Premises and the aforesaid furniture, murals and wall hangings and
acknowledges all of same to be in average condition for a three year old
building.
2. Term. The term of this Sublease will be for a period of two (2) years (each
a "Lease Year"), commencing on October 15, 2000 (the "Commencement Date") and
ending on October 15, 2002 (the "Term"). At the end of said term, including any
renewals or extensions thereof, the Premises, including all of the furniture
therein as set forth on Exhibit "B", shall be returned to Sublessor in the same
condition as on the date hereof, reasonable wear and tear excepted.
3. Rent.
A. For and during the first year of this Sublease, Sublessee will pay to
Sublessor without right to set-off or reduction (other than as specified in
Section 11) as rent for the Premises a total minimum annual rental ("Base Rent")
of three hundred sixty-five thousand ($365,000.00) dollars, plus a common area
maintenance ("CAM") charge (covering all expenses incurred by Sublessor pursuant
to the performance of its maintenance and operational obligations under this
Sublease as specified in Section 5 ("Sublessor's Services"), adjusted pursuant
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to the
provisions of Section 4, but in no event less than one hundred thousand
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($100,000.00) dollars annually. For and during the second year of this Sublease,
Sublessee will pay to Sublessor a Base Rent for the Premises of three hundred
and eighty-five hundred thousand ($385,000.00) dollars, together with CAM
adjusted according to Sublessor's costs for same, but in no event less than one
hundred thousand ($100,000.00) dollars. Sublessee shall pay such Base Rent and
CAM charges together in monthly installments in advance during the Term of this
Sublease or any renewal hereof in sums of not less than thirty-eight thousand
seven hundred and fifty ($38,750.00) dollars during the first year (subject to
an upward adjustment for the CAM charges), and not less than forty thousand four
hundred and seventeen ($40,417.67) dollars and sixty-seven cents during the
second year (subject to an upward adjustment for the CAM charges). The first
payment with respect to this Sublease shall be made at the time of the execution
of this Sublease and shall consist of rent payable for the stub period extending
from October 15, 2000 through October 31, 2000), together with one (1) month's
rent as security deposit to be paid. Thereafter installments of rent shall be
paid on the first day of each month. All rent or other payments hereunder shall
be made during business hours at 000 Xxxxxxxxxx Xxxx, Xxxxxxxxx, XX 00000, or at
such other places as Sublessor may from time to time after the date hereof,
designate. CAM charges, together with any other amount in addition to Base Rent,
payable by Sublessee under this Sublease shall sometimes be referred to herein
as "Additional Rent").
B. Any rental payment made more than fifteen (15) days after it is due
shall be paid with a late charge of one percent (1%) thereof. Sublessee agrees
that the foregoing late charge represents a reasonable estimate of the
additional administrative accounting and other expenses which Sublessor will
incur as a result of such non-payment, which cost and expenses are extremely
difficult to otherwise fix or quantify.
4. CAM Charges.
A. Sublessor shall be responsible for providing all Sublessor's Services
(but excluding janitorial and building security services) and paying all related
expenses (other than the cost of separately metered utilities and liability
insurance coverage) with respect to the Premises. Such expenses ("Operating
Expenses") will be reimbursed by Sublessee solely through the payment of the CAM
charges. Sublessee shall obtain at its sole cost, its own liability insurance
pursuant to Section 12.B. Sublessee shall also provide, at its sole cost, all
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janitorial services and security services with respect to the Premises.
B. In order to be reimbursable, any CAM charges exceeding $100,000 per
year must be reasonable, actual and necessary out-of-pocket expenses, obtained
at competitive prices, that are directly attributable to the operation,
maintenance, management, and repair of the Premises. Sublessor shall use
reasonable efforts to operate the Building efficiently and minimize Operating
Expenses, while maintaining a first class office building.
C. Sublessor shall pay the estimated CAM charge on a monthly basis
pursuant to Section 3.A. above. If Sublessor subsequently anticipates that the
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CAM charges will exceed $100,000 in any Lease Year, it shall so notify Sublessee
and provide an explanation for such
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divergence. In such event, provided Sublessee reasonably consents to such change
in the CAM charge, the CAM charge will be increased and such revised amount
shall thereafter be paid by Sublessee on a monthly basis during the remainder of
the applicable Lease Year.
D. If the CAM charges exceeds $100,000 annually, then at the end of the
applicable Lease Year, Sublessor shall compute the actual Operating Expenses
incurred with respect to the Premises. Within 30 days after the end of such
Lease Year, or such earlier time as reasonably practical, Sublessor shall give
Sublessee an itemized statement (the "Statement") showing in reasonable detail
the following: (1) actual Operating Expenses for the Lease Year broken down by
component expenses, (2) real estate taxes for the Lease Year, (3) the amount, if
any, paid by Sublessee during the Lease Year on account of CAM charges, and (4)
the Underpayment (as defined herein).
E. If the Statement shows that the actual amount Sublessee owes for the
Lease Year is more than the CAM charges paid by Sublessee for such Lease Year,
Sublessee shall pay the difference (the "Underpayment") as Additional Rent. The
Underpayment shall be paid within thirty (30) days after the Statement is
delivered to Sublessee.
F. If the CAM charges exceed $100,000 annually, Sublessee shall have the
right to audit Sublessor's books and records concerning the Statement at
Sublessor's offices during normal business hours. The books and records shall be
kept in accordance with generally accepted accounting principles consistently
applied. If Sublessee disputes the accuracy of Sublessor's Statement, Sublessee
shall still pay the amount shown owing. Sublessee may recover that part of the
Additional Rent paid (plus interest at 1% per annum over the prime rate),
because of errors in the Statement, books, or records of Sublessor.
5. Sublessor's Services. Sublessor agrees to maintain and keep in good repair
the Premises, the Building and its systems and any and all equipment, fixtures
and appurtenances furnished by Sublessor, except for uninsured damage (other
than reasonable wear and tear) arising from any act or omission of Sublessee,
its agents or employees, which shall be repaired by Sublessee at Sublessee's
expense. Repairs which affect business operations in the Premises shall be
scheduled after hours to the extent feasible, and in all events, shall use
commercially reasonable efforts to minimize interference with Sublessee's
business operations in performing such services. Such services to be provided by
Sublessor (the "Sublessor Services") shall specifically include the following:
A. Heating, ventilation and air conditioning for the comfortable use and
occupation of the Premises on a 24 hour, 7 days a week, year-round basis, to
maintain the temperatures within the parameters customary for first class
suburban office building. Sublessor will maintain, repair and replace the
heating, ventilation, and air conditioning system as necessary and will use all
reasonable care to keep it in proper and efficient operating condition.
Sublessee shall be responsible for all regular utility consumption charges with
respect to such service.
B. Maintenance of all electrical supply systems, wiring, transformers
and the like pursuant to its obligations as Tenant under the Prime Lease; but
Sublessee shall be solely
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responsible for, and shall make its own arrangements respecting, the supply of
electrical, telephone and other utility and other services from utility
providers.
C. Casualty insurance with respect to the Building as required under
Section 12.A.
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D. Adequate hot and cold water for all of Sublessee's ordinary needs.
E. Adequate freight and passenger elevator service on a 24 hour , 7 days
a week, year-round basis.
F. Parking, snow removal, lawn care and other similar services with
respect to the Premises in accordance with the customary standards for first
class suburban office buildings.
6. Use of Premises. Sublessee may use the Premises for office space and for
any other uses normally incident to such office use, and for no other purposes.
7. Assumption. During the term of this Sublease, Sublessee will be bound to
and comply with only the provisions of the Prime Lease specified in this Section
5 of this Sublease, and shall have no obligations to Sublessor or Landlord with
respect to any other obligations of Tenant under the Prime Lease. Sublessee
specifically agrees to perform and/or be subject to the obligations of Tenant
under the Prime Lease contained in Paragraphs 7, (the PIDA provisions only), 8,
10, 11, 12(b), 15 (subject to any limitations specified in this Sublease with
respect to such obligations), and, to the extent of the Premises, to assume
toward Sublessor and perform all of such incorporated obligations and
responsibilities, and to indemnify and hold harmless Sublessor from any claim or
liability specifically assumed hereby. Any capitalized terms used but not
defined in this Sublease shall have the meaning specified for such term under
the Prime Lease.
Attached to this Lease is Landlord's consent to this Sublease, the
execution of which shall be an absolute condition to the effectiveness of this
Lease. If the Prime Lease is canceled or otherwise terminated prior to the
expiration date of this Sublease, or any extensions and renewals hereof approved
by Landlord, the Landlord will not terminate this Sublease, provided Sublessor
is not in default hereunder.
8. Limitation of Liability. Notwithstanding any provision of the Prime Lease
to the contrary, neither Landlord nor Sublessor will be liable to Sublessee, or
any of Sublessee's agents, employees, servants, or invitees, for any injuries to
persons or damage to the Sublessee's property due to the condition or design or
any defect of the Premises which may presently exist or subsequently occur,
other than if such design or defect is directly attributable to Sublessor's
willful failure to perform its obligations under this Sublease. Sublessee
expressly assumes all risks and damage to persons and property, either
proximately or remotely, with respect to Sublessee and Sublessee's agents,
employees, servants, and invitees, by reason of the present or future condition
of the Premises, other than conditions directly attributable to Sublessor's
willful failure to perform its obligations under this Sublease. Sublessee agrees
to defend, indemnify and hold harmless Sublessor and Landlord from and against
all suits, claims, and actions of every
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kind by reason of any breach, violation, or nonperformance of any term or
conditions of this Sublease on the part of Sublessee.
Additionally, Sublessee agrees to defend, indemnify and hold Sublessor and
Landlord harmless from and against all claims, actions, damages, liabilities,
and expenses asserted against Sublessor and/or Landlord on account of injuries
to persons or damage to property other than such expenses directly attributable
to Sublessor's or Landlord's willful failure to perform its obligations under
this Sublease. This holds true when and to the extent that any such damage or
injury may be caused, either proximate or remote, wholly or in part, by any act
of omission, whether negligent or not, of Sublessee or any of Sublessee's
agents, servants, employees, contractors, patrons, or invitees (while such
persons are on the Premises) or of any other person entering on the Premises
under or with the expressed or implied invitation of Sublessee, or if any such
injury or damage may in any other way arise from or out of the occupancy or use
of the Premises by Sublessee or Sublessee's agents, employees, and invitees.
9. Assignment and Subletting; Improvements.
A. In accordance with the provisions of Paragraph 11 of the Prime Lease,
no assignment or subletting of the Premises may be made by Sublessee without
Sublessor's and Landlord's prior written consent, which consent may be withheld
by Sublessor or Landlord in their sole discretion. Provided, however, the
Premises may be sublet or assigned to any subsidiary or affiliate of Sublessee
without the requirement of Sublessor's consent, provided that Sublessee remains
fully liable under this Sublease and such sub-sub-lessee or assignee signs an
assumption agreement reasonably satisfactory to Sublessor.
B. Notwithstanding the provisions of Paragraph 10 of the Prime Lease
which are incorporated by reference into this Sublease under Section 7 hereof,
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Sublessee may make the alterations and improvements specified in Exhibit "C"
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attached hereto and made a part hereof, which alterations and improvements have
been approved in advance by Sublessor and Landlord. Any such alterations and
improvements shall be made by Sublessee in compliance with all building codes
and other applicable laws. At Sublessor's request, Sublessee shall restore the
Premises to the condition existing prior to the alterations and improvements
specified in Exhibit "C", which restoration shall be conducted in compliance
with all building codes and other applicable laws.
10. Remedies.
A. Sublessor may terminate this Sublease if Sublessee fails to pay any
installment of rent, or other charge or money obligation required to be paid by
Sublessee under this Sublease, within ten (10) days after receipt of written
notice, or fails to perform any other of Sublessee's covenants under this
Sublease within thirty (30) days after receipt of written notice.
B. When the Sublease terminates Sublessee will pay, in addition to the
rent and other sums agreed to be paid under this Sublease, any additional sums
as a court may adjudge reasonable as attorney's fees in any suit or action
instituted by Sublessor to enforce the
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provisions of this Sublease, or the collection of the rent due Sublessor under
this Sublease, provided that Sublessor prevails in the suit or action. Any
property belonging to Sublessee, or to any persons holding by, through, or under
Sublessee, or otherwise found on the Premises, may be removed from the Premises
and stored in any public warehouse at the cost of and for the account of
Sublessee. If Sublessee should abandon, vacate, or surrender the Premises or be
dispossessed by process of law, any personal property left on the Premises may
be deemed abandoned at the option of Sublessor. The provisions of this
Subsection B. are subject to the waiver of subrogation provisions of Section 12.
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C. If Sublessee causes a material breach this Sublease, Sublessor may
immediately or at any time thereafter, after notice and ten (10) days
opportunity to cure given to Sublessee (which cure period shall not be required
with respect to an emergency), cure the material breach for the account and at
the expense of Sublessee. If Sublessor at any time, by reason of such material
breach, is compelled to pay, or elects to pay, any sum of money or perform any
act which will require the payment of any sum of money, or is compelled to incur
any expense, including reasonable attorney's fees, in instituting or prosecuting
any action or proceeding to enforce Sublessor's rights under this Sublease, the
sum or sums paid by Sublessor, with interest at the rate of 1% over the prime
rate from the date of payment, will be deemed to be Additional Rent under the
Sublease and will be due from Sublessee to Sublessor on the first day of the
month following the payment of the sums or expense.
D. All rights and remedies of Sublessor enumerated in this Sublease are
cumulative and do not exclude any other right or remedy allowed by law, which
may be exercised and enforced concurrently and whenever and as often as the
occasion arises. Should Sublessor be in default under the terms of the Sublease,
Sublessor will have reasonable and adequate time in which to cure the default
after written notice to Sublessor by Sublessee.
E. In the event of any legal action between Sublessor and Sublessee to
enforce any of the provisions and/or rights under this Sublease, the
unsuccessful party in the action agrees to pay to the other party all costs and
expenses, including reasonable attorney's fees.
11. Default by Sublessor.
A. If any essential services (such as HVAC, passenger elevators if
necessary for reasonable access, snow removal, etc.) supplied by Sublessor are
interrupted, and the interruption does not result from the negligence or willful
misconduct of Sublessee, its employees, invitees, or agents, Sublessee shall be
entitled to an abatement of Base Rent and Additional Rent during the period of
interruption. Such right shall be construed as an additional remedy granted to
Sublessee and not in limitation of any other rights or remedies which Sublessee
may have.
B. If Sublessor defaults in the performance or observance of any
provision of this Lease, Sublessee shall give Sublessor notice specifying in
what manner Sublessor has defaulted and if such default shall not be cured by
Sublessor within 30 days after the delivery of such notice (except that if such
default cannot be cured within said 30 day period, this period shall be extended
for a reasonable additional time, provided that Sublessor commences to cure such
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default within the 30 day period and proceeds diligently thereafter to effect
such cure) Sublessee may cure such default and/or withhold payment of Base Rent
and Additional Rent due and to accrue hereunder (to the extent necessary to
cover the costs incurred and/or estimated by Sublessee to cure such default) so
long as Sublessor remains in default, or invoice Sublessor for costs and
expenses (including, without limitation, reasonable attorneys' fees and court
costs) incurred by Sublessee therefor. If Sublessee cannot reasonably cure
Sublessor's default or if Sublessor does not reimburse Sublessee within 30 days
of receipt of any invoice for the cost of such cure, Sublessee may terminate
this Lease.
12. Insurance.
A. Sublessor shall keep the Building insured against damage and
destruction by fire, earthquake, vandalism, and other perils in the amount of
the full replacement value of the Building, as the value may exist from time to
time. The insurance shall include an extended coverage endorsement of the kind
required by an institutional lender to repair and restore the Building and shall
name Sublessor as a named insured entitled to notice of cancellation.
B. Sublessee, rather than Sublessor, shall maintain contractual and
comprehensive general liability insurance, including public liability and
property damage, of the type and in the amounts specified to be maintained by
Sublessor as Tenant pursuant to Paragraph 12(b) of the Prime Lease.
C. Each party waives claims arising in any manner in its (the "Injured
Party") favor and against the other party for loss or damage to Injured Party's
property located within or constituting a part or all of the Building but only
to the extent the loss or damage is covered by the Injured Party's insurance, or
the insurance the Injured Party is required to carry under this Section,
whichever is greater. The waiver also applies to each party's directors,
officers, employees, shareholders, and agents. The waiver does not apply to
claims caused by a party's willful misconduct. Each party shall use all
reasonable efforts to obtain a waiver of subrogation endorsement in the
applicable insurance policies obtained with respect to the Premises.
13. Quiet Enjoyment; Occupancy.
A. Sublessor warrants to Sublessee that it has good right to lease the
Premises to Sublessee, and Sublessor covenants that, provided Sublessee is not
in default under this Lease, Sublessee may occupy, possess and enjoy the
Premises during the Lease Term, without interference from Sublessor or any
person claiming by, from or under Sublessor, including the Landlord under the
Prime Lease.
B. Sublessee may, prior to Commencement Date, have unhindered access to
the Premises for the purposes of installing Sublessee's computer and telephone
equipment and otherwise preparing the Premises for Sublessee's occupancy.
14. Confession of Judgement. Upon the expiration of the then current term of
this Sublease, whether the initial term or a renewal term or the earlier of
termination or surrender
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hereof, or earlier, upon a default by Sublessee, as provided in this Sublease,
Sublessee hereby authorizes and empowers any prothonotary or attorney of any
court of record in the Commonwealth of Pennsylvania or elsewhere to appear for
Sublessee in any such court and, by complaint or in ejectment against Sublessee
and against all persons claiming through, by or under Sublessee, to therein
confess judgment for the recovery by Sublessor of possession of the Premises,
for which a copy of this Sublease, verified by affidavit, shall be sufficient
warrant; whereupon, if Sublessor so desires, a writ of possession or other
appropriate writ under the rules of civil procedure then in effect may issue
forthwith, without any prior writ or proceedings. Whether this Sublease is
terminated or not and possession of the Premises remains in, or is restored to
Sublessee, Sublessor shall have the right for the same default and upon any
subsequent default or defaults, or upon the termination of this Sublease, to
bring one or more actions to recover possession of the Premises and confess
judgment for recovery of the Premises as provided in this section.
Sublessee hereby acknowledges that it has had the opportunity to seek the
assistance of legal counsel in the review and execution of this Sublease and
further acknowledges that the meaning and effect of the foregoing provisions
concerning confession of judgment have been fully explained to it by such
counsel.
Sublessee understands and agrees that this Sublease contains provisions by
which Sublessor may enter judgment by confession against Sublessee. Sublessee
understands that, without these provisions, Sublessee would receive prior notice
and a hearing of any claims by Sublessor before a judgment could be entered.
However, Sublessee hereby freely, knowingly and intelligently waives these
rights and consents to Sublessor entering judgment against it by confession
pursuant to the terms of the Sublease, and acknowledges that upon the entry of
such judgment Sublessor may direct the Sheriff to put the Sublessee out of
possession of the Premises. Sublessee freely, knowingly and intelligently waives
the right to notice and hearing before Sublessor may retake possession of the
Premises pursuant to a confessed judgment and Sublessor may direct the Sheriff
to do so, immediately upon entry of judgment. Sublessee certifies that
Sublessee's annual income exceeds ten thousand ($10,000.00) dollars.
15. Miscellaneous. This Sublease contains the entire agreement between the
parties on the subject matter hereof, and supersedes all prior agreements and
understandings, oral and/or written. Neither party has relied upon any
representation of any kind which is not specifically set forth herein, and both
parties expressly waive any prospective reliance upon or claim concerning any
omission of fact by any other party. This Sublease may not be changed orally,
but may only be changed by a writing signed by all parties. The invalidity of
all or any part of this Sublease will not render invalid the remainder hereof.
This Sublease will inure to the benefit of, and will be binding upon, the
parties hereto and their respective successors and assigns. This Sublease shall
be governed by and interpreted and enforced in accordance with the laws of the
Commonwealth of Pennsylvania, without regard to conflict of laws provisions. In
the event of litigation relating in any manner to this Sublease, whether its
alleged breach or interpretation, the parties agree to the exclusive
jurisdiction and venue of the courts of Common Pleas of Xxxxxxx County,
Pennsylvania, sitting in West Chester, Pennsylvania, or if appropriate, the
United States
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Xxxxxxxx Xxxxx for the Eastern District of Pennsylvania, sitting in
Philadelphia. Time is of the essence in regard to the performance of the duties
and obligations of the parties to this Sublease. The paragraph headings are
inserted for convenience of reference only, are not part of this Sublease, and
shall not be used in its interpretation. This Sublease may be executed in
counterparts, each of which shall be deemed to be an original hereof. The
parties agree to execute and deliver all such other instruments and take all
such other action as any party may reasonably request from time to time, without
payment of further consideration, in order to effectuate the transactions
provided for herein. Any notice which may or must be sent pursuant to this
Sublease shall be sent by certified mail, return receipt requested, or by same
day or overnight courier service, to the parties at their addresses first above
written, unless either party shall have previously provided the other with
notice hereunder of another address.
IN WITNESS WHEREOF, the parties hereto have executed this Sublease as of
the day and year first above written, and intend to be legally bound hereby.
ENVIRON PRODUCTS, INC.
WITNESS: /s/ Xxxxxx Xxxxxx By: /s/ Xxxxxxx Xxxx
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ADOLOR CORPORATION
WITNESS: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxxxx
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[Intentionally left blank; Landlord's Consent on next page]
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LANDLORD CONSENT
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The undersigned ("Landlord") is the Landlord under the Prime Lease and in
that capacity hereby consents to this Sublease Agreement (the "Sublease")
between Environ Products, Inc. ("Sublessor") and Adolor Corporation
("Sublessee"). Landlord hereby consents and approves to the alterations and
improvements specified on Exhibit "C" to the Sublease. Landlord specifically
agrees that if Sublessor is not in default under the terms of the Sublease, and
the Prime Lease is for any reason terminated between Landlord and Sublessor,
that Landlord shall not terminate the Sublease, but rather the Sublease shall
continue in accordance with its terms, and be treated by Landlord and Sublessee
as a lease directly between Landlord, as landlord, and Sublessee, as Tenant.
Landlord specifically agrees that Sublessee shall only be responsible for
performing those obligations specifically contained in the Sublease, including
only those obligations specifically incorporated into the Sublease from the
Prime Lease under Paragraph 5 of the Sublease (as same may be limited by the
terms of this Sublease), and Sublessee shall not be responsible for performing
any other obligations of Sublessor, as Tenant, under the Prime Lease. If this
Prime Lease is terminated and the Sublease continues, Landlord shall provide all
the Sublessor Services to Sublessee which were to have been provided by
Sublessor under the Sublease to Sublessee, and further, Landlord shall comply,
for the benefit of Sublessee, with the obligations of Landlord and rights of the
"Tenant" under Paragraphs 7, 9, 14, 15, 16 of the Prime Lease. All capitalized
terms used but not defined in this Landlord Consent shall have the meaning
specified in this Sublease.
Landlord:
M3 Partners, LP
By /s/ Xxxxxxx Xxxx
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