SUBLEASE
Exhibit
10.2
EXECUTION VERSION
***Text
Omitted and Filed Separately with the Securities and Exchange
Commission.
Confidential Treatment Requested Under
17
C.F.R. Sections 200.80(b)(4) and 240.24b-2
THIS SUBLEASE, dated as of the 30 day
of September, 2009, between PFIZER INC., a Delaware
corporation, (herein called "Sublessor") and NEKTAR THERAPEUTICS, a
Delaware corporation (herein called, "Subtenant").
WITNESSETH
1. DEMISE AND
TERM. Sublessor hereby leases to Subtenant, and Subtenant
hereby hires from Sublessor: those certain premises (herein called the "Subleased Premises")
consisting of approximately 102,283 rentable square feet located on the first
through fifth floors of the building known as 000 Xxxxxxx Xxx Xxxxxxxxx Xxxxx,
Xxx Xxxxxxxxx, Xxxxxxxxxx, building 2 (herein called the "Building") The Subleased
Premises constitute the entirety of the Premises leased to Sublessor pursuant to
the terms of the Main Lease. The term of this Sublease shall be the
period commencing on the date after the consent of Overlandlord (as hereinafter
defined) to a fully-executed Sublease (such consent, the “Overlandlord’s Consent”) that
is the earliest of (i) substantial completion of Subtenant’s Work (as defined
below) in the Subleased Premises, (ii) Subtenant’s occupancy of the Subleased
Premises, (iii) ten (10) months after the date of Overlandlord’s Consent and
(iv) August 1, 2010 (herein called the "Commencement Date"), and
ending at 11:59 P.M., one hundred and fourteen (114) months thereafter but no
later than January 30, 2020 (the “Expiration Date”), unless
sooner terminated as herein provided (the "Term"); provided, however,
notwithstanding anything herein to the contrary, the Term shall expire no later
than the day before the expiration of the 10th year of the Term (as defined in
the Lease) of the Lease which the parties hereto acknowledge will occur on
January 30, 2020; provided, further that if Subtenant has entered into a direct
lease with Overlandlord for the lease of the Subleased Premises commencing
February 1, 2020, then Subtenant may remain in possession of the Subleased
Premises under this Sublease for one additional day and pay Fixed Rent and
Supplemental Rent for such additional day; the parties agreeing that such right
to extend shall in no event constitute an assignment of the
Lease. The payment of Fixed Rent (as hereinafter defined) and
Supplemental Rent (as hereinafter defined) shall commence on the Commencement
Date. Subtenant shall have no interest in the Subleased Premises upon
the expiration of this Sublease.
***Text
Omitted and Filed Separately with the Securities and Exchange
Commission.
Confidential Treatment Requested Under
17
C.F.R. Sections 200.80(b)(4) and 240.24b-2
2. SUBORDINATE TO MAIN
LEASE. This Sublease is and shall be subject and subordinate
to the lease dated [***] (herein the "Lease"), between ARE-San
Francisco No. 19, LLC, a Delaware limited liability company ("Overlandlord"), as landlord,
and Sublessor, as tenant, as such Lease is amended by [***] ([***] collectively,
hereinafter the
"Main Lease"), and to
the matters to which the Main Lease is or shall be subject and
subordinate. A copy of the Main Lease has been delivered to and
examined by Subtenant and is attached hereto as Exhibit A. Sublessor
represents and warrants that the Main Lease is in full force and effect, and
there have been no amendments, modifications or additions to the Main Lease,
other than those included in the definition of the Main Lease set forth
above. The Main Lease constitutes the entire agreement between
Overlandlord and Sublessor with respect to the Subleased Premises. As
of the date hereof and to Sublessor’s actual knowledge without investigation or
inquiry (i) there exists no breach of or default under the Main Lease, and (ii)
there are no events which with the passage of time or giving of notice or both
would create a default or breach under the Main Lease.
***Text
Omitted and Filed Separately with the Securities and Exchange
Commission.
Confidential Treatment Requested Under
17
C.F.R. Sections 200.80(b)(4) and 240.24b-2
3. INCORPORATION BY
REFERENCE. The terms, covenants and conditions of the Main
Lease are incorporated herein by reference so that, except to the extent that
they are inapplicable or modified by the provisions of this Sublease for the
purpose of incorporation by reference, each and every term, covenant and
condition of the Main Lease binding or inuring to the benefit of the
Overlandlord thereunder shall, in respect of this Sublease, bind or inure to the
benefit of Sublessor, and each and every term, covenant and condition of the
Main Lease binding or inuring to the benefit of the tenant thereunder shall, in
respect of this Sublease, bind or inure to the benefit of Subtenant, with the
same force and effect as if such terms, covenants and conditions were completely
set forth in this Sublease, and as if the words "Landlord" and "Tenant," or
words of similar import, wherever the same appear in the Main Lease, were
construed to mean, respectively, "Sublessor" and "Subtenant" in this Sublease,
and as if the words "Premises," or words of similar import, wherever the same
appear in the Main Lease, were construed to mean "Subleased Premises" in this
Sublease, and as if the word "Lease," or words of similar import, wherever the
same appear in the Main Lease, were construed to mean this
"Sublease." Subtenant shall pay within ten (10) business days after
written demand for any special services or requirements of Subtenant, including,
without limitation, overtime air conditioning, extra cleaning, extra elevator
use, and extra water use. The time limits contained in the Main Lease
for the giving of notices, making of demands or performing of any act, condition
or covenant on the part of the tenant thereunder, or for the exercise by the
tenant thereunder of any right, remedy or option, are changed for the purposes
of incorporation herein by reference by shortening the same in each instance by
one-half the number of days, or by seven (7) days whichever is less, so that in
each instance Subtenant shall have seven (7) days less or one-half the amount of
time to observe or perform hereunder than Sublessor has as the tenant under the
Main Lease. [***] shall
be deemed deleted for the purpose of incorporation by reference in this
Sublease. On Page 1 of the Lease, the
following terms: [***] shall be deemed deleted for the purpose of incorporating
by reference in this Sublease. Any non-liability, indemnity or hold
harmless provision in the Main Lease for the benefit of the landlord under the
Main Lease, that is incorporated herein by reference, shall be deemed to inure
to the benefit of Sublessor, the landlord under the Main Lease, and any other
person intended to be benefited by said provision, for the purpose of
incorporation by reference in this Sublease. Any right of the
landlord under the Main Lease of access or inspection and any right of the
landlord under the Main Lease to do work in the premises demised under the Main
Lease or in the Building(s) and any right of the landlord under the Main Lease
in respect of rules and regulations shall be deemed to inure to the benefit of
Sublessor, the landlord under the Main Lease, and any other person intended to
be benefited by said provision, for the purpose of incorporation by reference in
this Sublease. With respect to the access rights as set forth in
Section 32 of the Main Lease, the number [***] shall remain [***] for access by
Overlandlord (except in the event of an emergency) and shall be [***] for access
by Sublessor (except in the event of an emergency); provided, however, that
Sublessor acknowledges the confidential nature of Subtenant’s business and shall
comply with reasonable security requirements of Subtenant (except in the event
of an emergency) and shall use reasonable commercial efforts to keep any
knowledge gained through inspection by Sublessor or access by Sublessor
confidential and Sublessor shall not use such confidential information for any
other purpose than managing the Subleased Premises and discharging its
obligations under the Main Lease, provided that Sublessor may disclose any such
information to comply with law, the Main Lease or this Sublease. In
furtherance of the immediately preceding sentence, Sublessor’s research
scientists shall not enter the Subleased Premises. If any of the
express provisions of this Sublease shall conflict with any of the provisions
incorporated by reference, such conflict shall be resolved in every instance in
favor of the express provisions of this Sublease. Any term
capitalized herein, that is not defined herein, shall have the meaning ascribed
in the Lease. Sublessor shall at Subtenant’s reasonable request take
reasonable steps to enforce Sublessor’s rights under the Main Lease in
connection with Overlandlord’s providing utilities and services; provided,
however, that Sublessor shall never be required to bring an action against
Overlandlord and there will be no expense to Sublessor. Sublessor
agrees that any notice to Sublessor regarding the failure of Overlandlord to
provide utilities and services may be sent to Overlandlord concurrently with
delivery to Sublessor.
***Text
Omitted and Filed Separately with the Securities and Exchange
Commission.
Confidential Treatment Requested Under
17
C.F.R. Sections 200.80(b)(4) and 240.24b-2
4. PERFORMANCE BY
SUBLESSOR. Any obligation of Sublessor which is contained in
this Sublease by the incorporation by reference of the provisions of the Main
Lease may be observed or performed by Sublessor using commercially reasonable
efforts to cause the Overlandlord under the Main Lease to observe and/or perform
the same, and Sublessor shall have a reasonable time to enforce its rights to
cause such observance or performance; provided, however,
Sublessor shall have no obligation to bring a claim or litigate against
Overlandlord under the Main Lease in connection with any such
enforcement. Sublessor shall not be required to furnish, supply or
install anything under any section of the Main Lease. Subtenant shall
not in any event have any rights in respect of the Subleased Premises greater
than Sublessor's rights under the Main Lease, and, notwithstanding any provision
to the contrary, as to obligations that pertain to the Subleased Premises and
are contained in this Sublease by the incorporation by reference of the
provisions of the Main Lease, Sublessor shall not be required to make any
payment or perform any obligation, and Sublessor shall have no liability to
Subtenant for any matter whatsoever, except for Sublessor's obligation to pay
the rent and additional rent due under the Main Lease and to perform any
obligations of Sublessor to be performed by it in accordance with this Sublease,
as limited by the terms of this Sublease. Sublessor shall not be
responsible for any failure or interruption, for any reason whatsoever, of the
services or facilities that may be appurtenant to or supplied at the Building(s)
by the Overlandlord under the Main Lease or otherwise, including, without
limitation, heat, air conditioning, water, electricity, elevator service and
cleaning service, if any. No failure to furnish, or interruption of,
any such services or facilities shall give rise to any (a) abatement, diminution
or reduction of Subtenant's obligations under this Sublease, (b) constructive
eviction, whether in whole or in part, or (c) liability on the part of
Sublessor.
***Text
Omitted and Filed Separately with the Securities and Exchange
Commission.
Confidential Treatment Requested Under
17
C.F.R. Sections 200.80(b)(4) and 240.24b-2
5. NO BREACH OF MAIN
LEASE. Subtenant shall not do or permit to be done any act or
thing which may constitute a breach or violation of any term, covenant or
condition of the Main Lease by the tenant thereunder, whether or not such act or
thing is permitted under the provisions of this Sublease.
6. NO PRIVITY OF
ESTATE. Unless otherwise explicitly provided herein, nothing
contained in this Sublease shall be construed to create privity of estate or of
contract between Subtenant and the Overlandlord under the Main
Lease.
***Text
Omitted and Filed Separately with the Securities and Exchange
Commission.
Confidential Treatment Requested Under
17
C.F.R. Sections 200.80(b)(4) and 240.24b-2
7. INDEMNITY. Subtenant
shall indemnify, defend and hold harmless Sublessor and the Overlandlord under
the Main Lease from and against all losses, costs, damages, expenses and
liabilities, including, without limitation, reasonable attorneys' fees, which
Sublessor may incur or pay out by reason of (a) any accidents, damages or
injuries to persons or property occurring in, on or about the Subleased Premises
(unless the same shall have been caused by Sublessor's negligence), (b) any
breach or default hereunder on Subtenant's part, (c) the enforcement of
Sublessor's rights under this Section or any other section of this Sublease, (d)
any work done in or to the Subleased Premises, or (e) any act, omission or
negligence on the part of Subtenant and/or its officers, employees, agents,
customers and/or invitees, or any person claiming through or under Subtenant;
provided, however, Subtenant shall not have to indemnify Sublessor for
Sublessor’s negligence, gross negligence or willful misconduct; provided,
however, that in the event of comparative negligence, Subtenant shall indemnify
Sublessor for the share of negligence that is not Sublessor’s.
8. SUBROGATION. Subtenant
hereby releases Sublessor and the Overlandlord under the Main Lease or anyone
claiming through or under the Overlandlord under the Main Lease by way of
subrogation or otherwise to the extent that Sublessor released the Overlandlord
under the Main Lease and/or the Overlandlord under the Main Lease was relieved
of liability or responsibility pursuant to the provisions of the Main Lease, and
Subtenant will cause its insurance carriers to include any clauses or
endorsements in favor of Sublessor and the landlord under the Main Lease which
Sublessor is required to provide pursuant to the provisions of the Main
Lease.
***Text
Omitted and Filed Separately with the Securities and Exchange
Commission.
Confidential Treatment Requested Under
17
C.F.R. Sections 200.80(b)(4) and 240.24b-2
9. RENT. Subtenant
shall pay to Sublessor rent (herein called the "Fixed Rent") hereunder at the
following rates: $ 0.00 per month per rentable square foot for months 01 – 48;
$[***] per month per rentable square foot for months [***] and for months [***];
months [***] $ [***] per rentable square foot; months [***]: $[***]; months
[***]: $[***]; months [***]: $[***]; months [***]:
$[***]. Notwithstanding anything herein to the contrary, only in the
event that this Sublease is executed by September 30, 2009, there shall be no
Fixed Rent for the first 48 months after the Commencement
Date. Notwithstanding anything herein to the contrary, in addition to
all other Fixed Rent and Supplemental Rent payable by Subtenant hereunder, in
the event that this Sublease has not been executed on or before October 31,
2009, Subtenant shall pay $[***] per month per rentable square foot for month
48; in the event that this Sublease has not been executed on or before November
30, 2009, Subtenant shall pay $[***] per month per rentable square foot for
months 47 and 48; and in the event that the Sublease has not been executed on or
before December 31, 2009, Subtenant shall pay $[***] per month per rentable
square foot for months 46, 47 and 48. Subtenant shall pay to
Sublessor Fixed Rent in equal monthly installments in advance on the first day
of each month during the Term of this Sublease, except that one (1) monthly
installment of Fixed Rent in the amount of $[***] (to be credited against Fixed
Rent due for the 49th month of the Term of the Sublease) and the Security
Deposit (as hereinafter defined) of [***] are being paid on the signing of this
Sublease. Fixed Rent shall be paid promptly in lawful money of the
United States when due, without notice or demand therefor, and without
deduction, abatement, counterclaim or setoff of any amount or for any reason
whatsoever to [***]; or at such other address as Sublessor may from time to time
designate by notice to Subtenant. No payment by Subtenant or receipt
by Sublessor of any lesser amount than the amount stipulated to be paid
hereunder shall be deemed other than on account of the earliest stipulated Fixed
Rent or Supplemental Rent (as hereinafter defined); nor shall any endorsement or
statement on any check or letter be deemed an accord and satisfaction, and
Sublessor may accept any check or payment without prejudice to Sublessor's right
to recover the balance due or to pursue any other remedy available to
Sublessor. Any provision in the Main Lease referring to Base Rent or
Additional Rent incorporated herein by reference shall be deemed to refer to the
Fixed Rent and Supplemental Rent due under this Sublease.
***Text
Omitted and Filed Separately with the Securities and Exchange
Commission.
Confidential Treatment Requested Under
17
C.F.R. Sections 200.80(b)(4) and 240.24b-2
10. SUPPLEMENTAL
RENT. Subtenant agrees to pay to Sublessor as additional rent
(“Supplemental
Rent”): (i) other than Base Rent, all costs and expenses of
any kind or description of Sublessor under the Main Lease (attached as Exhibit
A) including, without limitation, Tenant’s Share (as hereinafter defined) of
Operating Expenses (as defined in the Lease) and any and all other amounts
Sublessor assumes or agrees to pay under the provisions of the Lease, and (ii)
any and all other amounts Subtenant assumes or agrees to pay under the
provisions of this Sublease, including, without limitation, any and all other
sums that may become due by reason of any default of Subtenant or
failure to comply with the agreements, terms, covenants and conditions of this
Sublease to be performed by Subtenant, after any applicable notice and cure
period. Sublessor shall consult with Subtenant about Sublessor’s
election to pay Tenant’s Share of earthquake or flood insurance deductibles in
full at the time of the expense or fully amortize with equal monthly payments
and Subtenant may timely direct Sublessor to elect one or the
other. Sublessor shall provide Subtenant with insurance deductible
amounts provided by Overlandlord. When reasonably requested by
Subtenant, Sublessor shall use its judgment reasonably exercised, to determine
whether to audit the calculation of the Annual Statement as permitted under the
Main Lease. In the event that for any particular year, Sublessor
audits the calculation of the Annual Statement, Subtenant shall pay all expenses
incurred by Sublessor. Subtenant shall keep the results of any audit
confidential. “Tenant’s Share” shall be [***]. Subtenant shall
immediately pay Sublessor Operating Expenses and Taxes (as hereinafter defined)
and all other Supplemental Rent within ten (10) business days after written
invoice by Sublessor. Sublessor shall deliver to Subtenant the Annual
Estimate (as defined in Section 5 of the Lease). During each month of
the Term, on the same date that Fixed Rent is due, Subtenant shall pay Sublessor
an amount equal to 1/12 of Tenant’s Share (as defined in the Lease) of the
Annual Estimate on the same date that Fixed Rent is due. Subtenant
shall immediately pay Sublessor all expenses incurred by Sublessor for any
services provided directly to Sublessor by a third party within ten (10)
business days after written invoice and at Sublessor’s election, Sublessor may
cause Subtenant to contract directly with any such third party service provider
and pay such service provider directly. Sublessor shall have the
right to demand payment during or after the expiration of the Term of this
Sublease or the earlier termination of this Sublease.
***Text
Omitted and Filed Separately with the Securities and Exchange
Commission.
Confidential Treatment Requested Under
17
C.F.R. Sections 200.80(b)(4) and 240.24b-2
11. LATE CHARGES. If
payment of any Fixed Rent or Supplemental Rent shall not have been paid by the
date on which such amount was due and payable then, in addition to, and without
waiving or releasing, any other remedies of Sublessor, a late charge of [***]
over the prime rate as announced by Xxxxx Fargo Bank, N.A. per calendar month or
any part thereof, or the then maximum lawful interest rate, whichever shall be
less, from the date on which such amount was due, on the amount overdue shall be
payable on demand by Subtenant to Sublessor as damages for Subtenant's failure
to make prompt payment. In default of payment of any late charges, Sublessor
shall have (in addition to all other remedies) the same rights as provided in
this Sublease (including the provisions incorporated by reference) for
nonpayment of Fixed Rent. Nothing in this Section contained and no acceptance of
late charges by Sublessor shall be deemed to extend or change the time for
payment of Fixed Rent or Supplemental Rent. If any payment due by Subtenant
under this Sublease shall not have been paid by the fifth (5th) day of the month
in which such payment was due and payable then, in addition to, and without
waiving or releasing, any other remedies of Sublessor, a late charge of [***]
per calendar month or any part thereof, from the date on which such amount was
due, on the amount overdue shall be payable on demand by Subtenant to Sublessor
as damages for Subtenant's failure to make prompt payment. Notwithstanding the
foregoing, the interest and late charge referenced above shall not be charged
with respect to one occurrence (but not any subsequent occurrence) during any
twelve-month period that Subtenant fails to make payment when due, until five
(5) business days after due date.
***Text
Omitted and Filed Separately with the Securities and Exchange
Commission.
Confidential Treatment Requested Under
17
C.F.R. Sections 200.80(b)(4) and 240.24b-2
12. USE. Subtenant shall
use and occupy the Subleased Premises as a medical research and biotechnical
research facility, related office and other related uses consistent with the
character of the Project and otherwise in compliance with the provisions of the
Lease including, without limitation, a cafeteria, gymnasium, locker room and
pantry and the use described on Exhibit C attached hereto and for no other
purpose subject to Sublessor’s consent, not to be unreasonably withheld and
further subject to Overlandlord’s consent, which can be withheld in
Overlandlord’s absolute discretion. Subtenant shall comply with the certificate
of occupancy relating to the Subleased Premises and with all laws, statutes,
ordinances, orders, rules, regulations and requirements of all federal, state
and municipal governments and the appropriate agencies, officers, departments,
boards and commissions thereof, and the board of fire underwriters and/or the
fire insurance rating organization or similar organization performing the same
or similar functions, whether now or hereafter in force, applicable to the
Subleased Premises.
***Text
Omitted and Filed Separately with the Securities and Exchange
Commission.
Confidential Treatment Requested Under
17
C.F.R. Sections 200.80(b)(4) and 240.24b-2
13. CONDITION OF SUBLEASED
PREMISES SPACE "AS IS". Subject to the penultimate sentence of this
Paragraph 13, Subtenant represents that Subtenant is hiring the Subleased
Premises “as is” and Sublessor shall have no liability in connection with the
condition of the Subleased Premises and Subtenant releases Sublessor from any
claim in connection with, relating to or resulting from conditions of the
Subleased Premises. Subtenant’s Work (as hereinafter defined), designs,
installations of equipment and Subtenant’s furniture and personal property are
at Subtenant’s sole cost and expense. In making and executing this Sublease,
Subtenant has not relied upon or been induced by any statements or
representations of any person (other than those, if any, set forth expressly in
this Sublease) in respect of the physical condition of the Subleased Premises or
of any other matter or thing affecting the Subleased Premises or this
transaction which might be pertinent in considering the leasing of the Subleased
Premises or the execution of this Sublease. Subtenant has, on the contrary,
relied solely on such representations, if any, as are expressly made herein and
on such investigations, examinations and inspections as Subtenant has chosen to
make or have made. Subtenant acknowledges that Sublessor has afforded Subtenant
the opportunity for full and complete investigations, examinations and
inspections. Sublessor represents that on July 20, 2009, Sublessor accepted
delivery of the Building Shell from Overlandlord and Sublessor has no further
right to terminate the Main Lease for failure to deliver the Premises as set
forth in Section 3 of the First Amendment. Subtenant acknowledges that Sublessor
has accommodated Subtenant by doing work on the Subleased Premises that would
expedite Subtenant’s occupancy and, subject to the penultimate sentence of this
Section 13, that Sublessor had no obligation to perform such work. Sublessor
shall assign the contractor warranties for the Work, to the extent assignable by
Sublessor. Upon the substantial completion (which shall be determined in
Sublessor’s judgment, reasonably exercised and Overlandlord has accepted) of the
work described on Exhibit B and on Schedule 1, but only as to those items
designated to be performed by Sublessor or PFE (such work, the “Work”),
Sublessor shall have no liability in connection with the Work and Subtenant
releases Sublessor from any claim in connection with, relating to or resulting
from the Work. Sublessor shall use commercially reasonable efforts to provide
permitted revised drawings associated with the Work by November 15,
2009.
***Text
Omitted and Filed Separately with the Securities and Exchange
Commission.
Confidential Treatment Requested Under
17
C.F.R. Sections 200.80(b)(4) and 240.24b-2
14. CONSENTS AND
APPROVALS. In any instance when Sublessor's consent or
approval, not to be unreasonably withheld, delayed or conditioned, is required
under this Sublease, Sublessor's refusal to consent to or approve any matter or
thing shall be deemed reasonable if, inter alia, such consent or approval has
not been obtained from the Overlandlord under the Main Lease. In the
event that Subtenant shall seek the approval by or consent of Sublessor and
Sublessor shall fail or refuse to give such consent or approval, Subtenant shall
not be entitled to any damages for any withholding or delay of such approval or
consent by Sublessor, it being intended that Subtenant's sole remedy shall be an
action for injunction or specific performance and that said remedy of an action
for injunction or specific performance shall be available only in those cases,
where Sublessor shall have expressly agreed in writing not to unreasonably
withhold or delay its consent.
15. NOTICES. All
notices, consents, approvals, demands and requests which are required or desired
to be given by either party to the other hereunder shall be in writing and shall
be sent by United States registered or certified mail and deposited in a United
States post office, return receipt requested and postage prepaid or by a
nationally recognized overnight service. Notices, consents,
approvals, demands and requests which are served upon Sublessor or Subtenant in
the manner provided herein shall be deemed to have been given or served for all
purposes hereunder (i) on the second business day next following the date on
which such notice, consent, approval, demand or request shall have been mailed
U.S. Mail as aforesaid, or (ii) on the business day next following the date on
which such notice, consent, approval, demand or request shall have been sent by
nationally recognized overnight service as aforesaid. All notices,
consents, approvals, demands and requests given to Subtenant shall be addressed
to Subtenant at (i) prior to the Commencement Date, 000 Xxxxxxxxxx Xxxx, Xxx
Xxxxxx, XX 00000, Attention: General Counsel,
and (ii) after the Commencement Date, the Subleased Premises, or at such other
place as Subtenant may from time to time designate in a notice given in
accordance with the provisions of this Section. All notices,
consents, approvals, demands and requests given to Sublessor shall be addressed
to Sublessor at Pfizer Inc., Attention: Vice President of Corporate Real Estate,
000 Xxxx 00xx Xxxxxx, Xxx Xxxx XX 00000-0000; Pfizer Inc., Attention: Xxxxxxx X.
Xxxxx, Assistant General Counsel, 25th Floor, Mail Stop 6, 000 Xxxx 00xx Xxxxxx,
Xxx Xxxx, XX 00000-0000; Xxxxxx, Xxxxx & Xxxxxxx LLP, Attention: Xxxx X.
Xxxxxxxxx, Esquire, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx, XX 00000; or at
such other place as Sublessor may from time to time designate in a notice given
in accordance with the provisions of this Section. All notices to
Subtenant related to construction in the Subleased Premises shall also be
delivered to Subtenant’s construction representative: Xxxxxx Xxxxxx, 0000
Xxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000.
***Text
Omitted and Filed Separately with the Securities and Exchange
Commission.
Confidential Treatment Requested Under
17
C.F.R. Sections 200.80(b)(4) and 240.24b-2
16. TERMINATION OF MAIN
LEASE. If for any reason the term of the Main Lease shall
terminate prior to the expiration date of this Sublease, this Sublease shall
thereupon be terminated and Sublessor shall not be liable to Subtenant by reason
thereof. If a Default exists under the Lease, Subtenant may terminate
this Sublease. In the event that Sublessor terminates or causes the
termination of the Lease, provided that Subtenant is allowed to stay in
possession of the Subleased Premises under the terms of the Sublease, Sublessor
shall have no liability. In the event of a casualty or taking, if
Overlandlord or Sublessor terminates the Main Lease, the Sublease shall
terminate. In the event of a casualty or taking, if Overlandlord and
Sublessor do not terminate the Main Lease, this Sublease shall continue in full
force and effect; provided, however, if, in the event of a casualty or taking,
the Base Rent and/or Additional Rent or any portion thereof is abated for
Sublessor under the Main Lease, Subtenant shall be entitled to a corresponding,
proportionate abatement of Fixed Rent and/or Supplemental Rent
hereunder. If there is an abatement of Base Rent for Sublessor under
the Main Lease as a result of a Service Interruption, Subtenant shall be
entitled to a corresponding, proportionate abatement of Fixed Rent
hereunder.
***Text
Omitted and Filed Separately with the Securities and Exchange
Commission.
Confidential Treatment Requested Under
17
C.F.R. Sections 200.80(b)(4) and 240.24b-2
17. ASSIGNMENT AND
SUBLETTING. Subtenant shall not, by operation of law or
otherwise, assign, sell, mortgage, pledge or in any manner transfer this
Sublease or any interest therein, or sublet the Subleased Premises or any part
or parts thereof, or grant any concession or license or otherwise permit
occupancy of all or any part of the Subleased Premises by any person, without
the consent of Sublessor which can be withheld, delayed conditioned in its
absolute discretion and the landlord under the Main Lease which can be withheld,
delayed conditioned in its absolute discretion. Neither the consent
of Sublessor and the landlord under the Main Lease to an assignment, subletting,
concession, or license, nor the references in this Sublease to assignees,
subtenants, concessionaires or licensees, shall in any way be construed to
relieve Subtenant of the requirement of obtaining the consent of Sublessor and
the landlord under the Main Lease to any further assignment or subletting or to
the making of any assignment, subletting, concession or license for all or any
part of the Subleased Premises. In the event Sublessor and
Overlandlord consent to any assignment of this Sublease, the assignee shall
execute and deliver to Sublessor an agreement in form and substance satisfactory
to Sublessor and the landlord under the Main Lease in its absolute discretion
whereby the assignee shall assume all of Subtenant's obligations under this
Sublease. Notwithstanding any assignment or subletting, including,
without limitation, any assignment or subletting permitted or consented to, the
original Subtenant named herein and any other person(s) who at any time was or
were Subtenant shall remain fully liable on this Sublease, and if this Sublease
shall be amended, modified, extended or renewed, the original Subtenant named
herein and any other person(s) who at any time was or were Subtenant shall
remain fully liable on this Sublease as so amended, modified, extended or
renewed. Any violation of any provision of this Sublease by any
assignee, subtenant or other occupant shall be deemed a violation by the
original Subtenant named herein, the then Subtenant and any other person(s) who
at any time was or were Subtenant, it being the intention and meaning that the
original Subtenant named herein, the then Subtenant and any other person(s) who
at any time was or were Subtenant shall all be liable to Sublessor for any and
all acts and omissions of any and all assignees, subtenants and other occupants
of the Subleased Premises. If this Sublease shall be assigned or if
the Subleased Premises or any part thereof shall be sublet or occupied by any
person or persons other than the original Subtenant named herein, Sublessor may
collect rent from any such assignee and/or any subtenants or occupants, and
apply the net amounts collected to the Fixed Rent and Supplemental Rent, but no
such assignment, subletting, occupancy or collection shall be deemed a waiver of
any of the provisions of this Section, or the acceptance of the assignee,
subtenant or occupant as Subtenant, or a release of any person from the further
performance by such person of the obligations of Subtenant under this
Sublease. Subtenant will pay all of Sublessor’s and Overlandlord’s
costs and fees, including Sublessor’s and Overlandlord’s attorney’s fees in
connection with any sublease or assignment request of Subtenant or any of
Subtenant’s subtenants or assignees or sublease or assignment. In
addition, notwithstanding anything to the contrary contained in this Section 17,
(i) an assignment of the Sublease to an entity which acquires all or
substantially all of the assets or interests (partnership, stock or other) of
Tenant, or (ii) an assignment of the Sublease to an entity which is the
resulting entity of a merger or consolidation of Subtenant, shall not require
Sublessor’s consent (but shall require Overlandlord’s consent) provided that
Subtenant notifies Sublessor of any such assignment and promptly supplies
Sublessor with any documents or information reasonably requested by Sublessor
regarding such assignment or such assignee, and further provided that such
assignment is not a subterfuge by Subtenant to avoid its obligations under this
Sublease and further provided that the resulting entity has a net worth that
shall not be less than the net worth of Subtenant on the date of this
Sublease.
***Text
Omitted and Filed Separately with the Securities and Exchange
Commission.
Confidential Treatment Requested Under
17
C.F.R. Sections 200.80(b)(4) and 240.24b-2
18. INSURANCE. Subtenant
shall maintain throughout the Term of this Sublease the insurance in respect of
the Subleased Premises required under Section 17 (other than the sections
deleted in Section 3 hereof) of the Lease, as amended by Section 6 of the Second
Amendment, with Sublessor and the Overlandlord under the Main Lease as
additional insureds. Subtenant shall deliver to Sublessor and the
Overlandlord under the Main Lease fully paid for policies or certificates issued
by the carriers or their duly authorized agents (and not by a broker) prior to
the Commencement Date. Subtenant shall procure and pay for renewals
of such insurance from time to time before the expiration thereof, and Subtenant
shall deliver to Sublessor and the landlord under the Main Lease such renewal
policies or certificates at least 30 days before the expiration of any existing
policy. All such policies shall meet the requirements in the Main
Lease and shall be issued by companies of recognized responsibility licensed to
do business in the State of California, and all such policies shall contain a
provision whereby the same cannot be cancelled or modified unless Sublessor and
the landlord under the Main Lease are given at least 30 days' prior written
notice by certified or registered mail of such cancellation or
modification. Subtenant may not self-insure or obtain a “blanket
policy”. Subtenant shall also reimburse Sublessor for any increased
premiums or additional insurance which Sublessor reasonably deems necessary as a
result of Subtenant’s use of the Sublease Premises.
19. ESTOPPEL
CERTIFICATES. Subtenant shall, within five (5) business days
after each and every written request by Sublessor, execute, acknowledge and
deliver to Sublessor a statement in writing executed and acknowledged by
Subtenant containing all of the information set forth in Section 23 of the
Lease. Any such statement delivered pursuant to this Section may be
relied upon by any prospective assignee or transferee of the leasehold estate
under the Main Lease.
***Text
Omitted and Filed Separately with the Securities and Exchange
Commission.
Confidential Treatment Requested Under
17
C.F.R. Sections 200.80(b)(4) and 240.24b-2
20. ALTERATIONS. Subtenant
shall not make or cause, suffer or permit the making of any alteration,
addition, change, replacement, installation or addition in or to the Subleased
Premises without obtaining the prior consent of Sublessor which shall not be
unreasonably withheld, delayed or conditioned and the consent of Overlandlord;
provided, however, in the event that Overlandlord consents to any of the above,
Sublessor’s consent is not required, provided further that in the event that
Overlandlord withholds its consent to any of the above, Sublessor shall not be
required to consent. Subtenant shall have the same rights as
Sublessor to make Notice-Only Alterations (as defined in the Lease) provided
that Subtenant complies with any and all provisions of the Lease (including all
of Tenant’s applicable duties, liabilities and obligations) with respect to such
Notice-Only Alterations.
21. RIGHT TO CURE SUBTENANT'S
DEFAULTS. If Subtenant shall at any time fail to make any
payment or perform any other obligation of Subtenant hereunder, then Sublessor
shall have the right, but not the obligation, after three (3) business days’
notice to Subtenant, or without notice to Subtenant in the case of any
emergency, and without waiving or releasing Subtenant from any obligations of
Subtenant hereunder, to make such payment or perform such other obligation of
Subtenant in such manner and to such extent as Sublessor shall reasonably deem
necessary, and in exercising any such right, to pay any incidental costs and
expenses, employ attorneys, and incur and pay reasonable attorneys'
fees. Subtenant shall pay to Sublessor within ten (10) business days
after demand all sums so paid by Sublessor and all reasonable incidental costs
and expenses of Sublessor in connection therewith, together with interest
thereon at the rate of [***] per calendar month or any part thereof or the then
maximum lawful interest rate, whichever shall be less, from the date of the
making of such expenditures.
***Text
Omitted and Filed Separately with the Securities and Exchange
Commission.
Confidential Treatment Requested Under
17
C.F.R. Sections 200.80(b)(4) and 240.24b-2
22. SECURITY. Subtenant
shall deposit with Sublessor on the signing of this Sublease the sum of [***] as
security for the faithful performance and observance by Subtenant of the terms,
conditions and provisions of this Sublease (the "Security
Deposit"). It is agreed that in the event Subtenant defaults
in respect of any of the terms, provisions and conditions of this Sublease,
including, but not limited to, the payment of Fixed Rent and Supplemental Rent,
Sublessor may apply or retain the whole or any part of the Security Deposit so
deposited and any interest accrued thereto to the extent required for the
payment of any Fixed Rent and Supplemental Rent or any other sum as to which
Subtenant is in default or for any sum which Sublessor may expend or may be
required to expend by reason of Subtenant's default in respect of any of the
terms, covenants and conditions of this Sublease, including but not limited to,
any damages or deficiency in the reletting of the Subleased Premises, whether
such damages or deficiency accrue or accrues before or after summary proceedings
or other reentry by Sublessor. If Sublessor applies or retains any
part of the Security Deposit so deposited, Subtenant, within ten (10) business
days of demand, shall deposit with Sublessor the amount so applied or retained
so that Sublessor shall have the full Security Deposit on hand at all times
during the Term, if any. If Subtenant shall fully and faithfully
comply with all of the terms, provisions, covenants and conditions of this
Sublease, the Security Deposit shall be returned to Subtenant within thirty (30)
days after the expiration of the Term. Subtenant further covenants
that it will not assign or encumber or attempt to assign or encumber the
Security Deposit and/or other sums deposited and that neither Sublessor nor its
successors or assigns shall be bound by any such assignment, encumbrance,
attempted assignment or attempted encumbrance.
***Text
Omitted and Filed Separately with the Securities and Exchange
Commission.
Confidential Treatment Requested Under
17
C.F.R. Sections 200.80(b)(4) and 240.24b-2
23. BROKERAGE. Subtenant
represents and warrants to Sublessor that it has dealt directly with GVA Xxxxxx
Xxxxxxxx in negotiating and making of this Sublease, and that no other broker
other than GVA Xxxxxx Xxxxxxxx has a claim as a result of any relationship with
Subtenant on any consideration in connection with entering into this Sublease,
and Subtenant agrees to indemnify and hold Sublessor harmless from any claim or
claims, as well as costs and expenses including attorneys' fees incurred by
Sublessor in conjunction with any claim or claims, of any other broker or
brokers claiming to have interested Subtenant in the Building(s) or Subleased
Premises or claiming to have caused Subtenant to enter into this Sublease or
claiming to have had dealings with the Subtenant. Sublessor shall be
responsible for paying a broker commission, if any, to GVA Xxxxxx Xxxxxxxx and
Xxxxx Xxxx LaSalle pursuant to a separate written
agreement. Sublessor represents and warrants to Subtenant that it has
dealt directly with Xxxxx Lang LaSalle in negotiating and making of this
Sublease, and that no other broker other than Xxxxx Xxxx LaSalle has a claim as
a result of any relationship with Sublessor on any consideration in connection
with entering into this Sublease, and Sublessor agrees to indemnify and hold
Subtenant harmless from any claim or claims, as well as costs and expenses
including attorneys’ fees incurred by Subtenant in conjunction with any claim or
claims, of any other broker or brokers with respect to this Sublease or the
Subleased Premises or claiming to have caused Sublessor to enter into this
Sublease or claiming to have had dealings with the Sublessor.
24. WAIVER OF JURY TRIAL AND
RIGHT TO COUNTERCLAIM. Each of Sublessor and Subtenant hereby
waives for itself all right to trial by jury in any summary or other action,
proceeding or counterclaim arising out of or in any way connected with this
Sublease, the relationship of Sublessor and Subtenant, the Subleased Premises
and the use and occupancy thereof, and any claim of injury or
damages. Subtenant also hereby waives all right to assert or
interpose a counterclaim in any summary proceeding or other action or proceeding
to recover or obtain possession of the Subleased Premises; provided, however,
nothing herein shall preclude or prevent Subtenant from bringing a separate
legal or equitable action against Sublessor.
***Text
Omitted and Filed Separately with the Securities and Exchange
Commission.
Confidential Treatment Requested Under
17
C.F.R. Sections 200.80(b)(4) and 240.24b-2
25. NO
WAIVER. The failure of each party hereto to insist in any one
or more cases upon the strict performance or observance of any obligation of the
other party hereto hereunder or to exercise any right or option contained herein
shall not be construed as a waiver or relinquishment for the future of any such
obligation of the non-waiving party or any right or option of the waiving
party. Sublessor's receipt and acceptance of Fixed Rent or
Supplemental Rent, or Sublessor's acceptance of performance of any other
obligation by Subtenant, with knowledge of Subtenant's breach of any provision
of this Sublease, shall not be deemed a waiver of such breach. No
waiver by either party hereto of any term, covenant or condition of this
Sublease shall be deemed to have been made unless expressed in writing and
signed by the waiving party.
26. COMPLETE
AGREEMENT. There are no representations, agreements,
arrangements or understandings, oral or written, between the parties relating to
the subject matter of this Sublease which are not fully expressed in this
Sublease. This Sublease cannot be changed or terminated orally or in
any manner other than by a written agreement executed by both
parties.
27. SUCCESSORS AND
ASSIGNS. The provisions of this Sublease, except as herein
otherwise specifically provided, shall extend to, bind and inure to the benefit
of the parties hereto and their respective personal representatives, heirs,
successors and permitted assigns. In the event of any assignment or
transfer of the leasehold estate under the Main Lease, the transferor or
assignor, as the case may be, shall be and hereby is entirely relieved and freed
of all obligations under this Sublease.
***Text
Omitted and Filed Separately with the Securities and Exchange
Commission.
Confidential Treatment Requested Under
17
C.F.R. Sections 200.80(b)(4) and 240.24b-2
28. INTERPRETATION. Irrespective
of the place of execution or performance, this Sublease shall be governed by and
construed in accordance with the laws of the State of California. If
any provision of this Sublease or the application thereof to any person or
circumstance shall, for any reason and to any extent, be invalid or
unenforceable, the remainder of this Sublease and the application of that
provision to other persons or circumstances shall not be affected but rather
shall be enforced to the extent permitted by law. The table of
contents, captions, headings and titles, if any, in this Sublease are solely for
convenience of reference and shall not affect its
interpretation. This Sublease shall be construed without regard to
any presumption or other rule requiring construction against the party causing
this Sublease to be drafted. If any words or phrases in this Sublease
shall have been stricken out or otherwise eliminated, whether or not any other
words or phrases have been added, this Sublease shall be construed as if the
words or phrases so stricken out or otherwise eliminated were never included in
this Sublease and no implication or inference shall be drawn from the fact that
said words or phrases were so stricken out or otherwise
eliminated. Each covenant, agreement, obligation or other provision
of this Sublease shall be deemed and construed as a separate and independent
covenant of the party bound by, undertaking or making same, not dependent on any
other provision of this Sublease unless otherwise expressly
provided. All terms and words used in this Sublease, regardless of
the number or gender in which they are used, shall be deemed to include any
other number and any other gender as the context may require. The
word "person" as used in this Sublease shall mean a natural person or persons, a
partnership, a corporation or any other form of business or legal association or
entity.
***Text
Omitted and Filed Separately with the Securities and Exchange
Commission.
Confidential Treatment Requested Under
17
C.F.R. Sections 200.80(b)(4) and 240.24b-2
29. CONSENT OF LANDLORD UNDER
MAIN LEASE. This Sublease shall have no effect until the
Overlandlord’s Consent has been obtained. Sublessor shall use
commercially reasonable efforts to obtain the Overlandlord’s
consent. If Overlandlord under the Main Lease does not give its
consent to this Sublease for any reason whatsoever within 45 days after the date
hereof, (a) Sublessor shall not be obligated to take any action to obtain such
consent, (b) this Sublease shall be deemed null and void and of no effect, and
(c) if Subtenant is then in possession of all or any part of the Subleased
Premises, Subtenant shall immediately quit and surrender to Sublessor the
Subleased Premises, shall remove all of its property and repair all damage
caused by such removal and restore the Subleased Premises to the condition in
which they were prior to the installation of the items so removed.
30. NO THIRD PARTY
BENEFICIARIES. No third parties may rely on the terms and
conditions of this Sublease.
31. LIABILITY
LIMITED. In no event shall the stockholders, partners,
directors, officers, agents or employees of Sublessor or Subtenant (either
individually or severally) be personally liable for any such
judgment. Furthermore, in no event shall Subtenant be entitled to an
award of incidental, consequential, indirect, special or punitive damages
arising out of any breach by Sublessor.
32. PARKING. Subtenant
shall have the right (but not the obligation) to sublease parking spaces for
non-reserved parking designated by Overlandlord on land adjacent to or nearby
the Project, subject to Overlandlord’s rules and regulations at a ratio of
[***] of
the Subleased Premises by paying parking fees of [***] per
month, on or before the first day of every month, in advance, provided that
commencing on the first anniversary of the Commencement Date of the Main Lease
and on each anniversary thereafter, such parking fees shall be increased by
amount that is the product of [***] and the parking fees of the previous
year. Subtenant shall notify Sublessor of the number of parking
spaces it wishes to sublease thirty (30) days before the Commencement Date and
thirty (30) days before each anniversary of the Commencement
Date. Subtenant shall not be obligated to sublease more parking
spaces than the number provided for in such notice.
***Text
Omitted and Filed Separately with the Securities and Exchange
Commission.
Confidential Treatment Requested Under
17
C.F.R. Sections 200.80(b)(4) and 240.24b-2
33. ALLOWANCE. To
the actual knowledge of Sublessor, without representation or warranty, as of the
date hereof, the amount of money that Overlandlord is currently committed to
apply to Tenant Improvements in the Subleased Premises is $[***] (the “Allowance”). Subtenant
acknowledges that depending upon options exercisable by Subtenant, the Allowance
may ultimately be zero. Sublessor shall not request disbursements
from the Allowance in excess of the amounts set forth on Exhibit B with respect
to work to be performed by Sublessor; Sublessor to confirm by notice to
Overlandlord and Subtenant when it has made its last disbursement request from
the Allowance.
34. SUBTENANT’S
OBLIGATION. Subtenant shall be solely responsible for ensuring
that the Subleased Premises design and specifications are consistent with
Subtenant’s requirements.
35. EARLY
ACCESS. Subject to the next sentence of this Paragraph 35 and
to all the provisions of the Lease, Subtenant shall have the same rights under
this Sublease as Sublessor has under the Lease to access the Subleased Premises
following the Commencement Date. Subtenant may have access to the
Subleased Premises for constructing, designing and installing Subtenant’s Work
with the consent of Overlandlord; provided, however, Sublessor shall
have complete control of and access to the Subleased Premises during the time
that Sublessor is doing any work in the Subleased Premises but provided further
that Subtenant shall have reasonable access upon written request provided that
Subtenant shall have such access at its own risk, shall not interfere with
Sublessor and shall provide evidence reasonably satisfactory to Sublessor
demonstrating that any insurance reasonably required by Sublessor in connection
with such access (including, but not limited to, any insurance that Sublessor
may require under this Sublease) be in full force and effect.
***Text
Omitted and Filed Separately with the Securities and Exchange
Commission.
Confidential Treatment Requested Under
17
C.F.R. Sections 200.80(b)(4) and 240.24b-2
36. SIGNAGE. Subtenant
shall have the use of signage rights granted to Sublessor pursuant to Section 38
of the Lease; provided, however, that Subtenant complies with all of the
applicable provisions of the Lease (including all of Sublessor’s applicable
duties, liabilities and obligations) with respect to such rights.
37. SURRENDER. Subtenant
shall surrender the Subleased Premises at the end of the Term in good operating
conditions and repair, normal wear and tear excepted. In the event
that Overlandlord requires removal and/or restoration of any improvements,
alterations or work performed by or for Subtenant and any work set forth on
Exhibit B (collectively, “Subtenant’s Work”) or any
improvements, alterations, modifications, installations performed by or for
Sublessor, affected in any manner by Subtenant’s Work, any removal and/or
restoration shall be Subtenant’s exclusive responsibility at its sole cost and
expense.
To the extent that Overlandlord’s
consent to any improvements, alterations, installations or modifications are
conditioned on any restoration obligations, then Sublessor shall have the
absolute right to withhold its consent to any such improvement, alteration,
installation or modification until such time as provisions satisfactory to
Sublessor in its sole discretion for such restoration obligations are made and
Overlandlord agrees to relieve Sublessor of any liability whatsoever for such
restoration obligations.
***Text
Omitted and Filed Separately with the Securities and Exchange
Commission.
Confidential Treatment Requested Under
17
C.F.R. Sections 200.80(b)(4) and 240.24b-2
38. HOLDING
OVER. If Subtenant retains possession of the Subleased
Premises after the termination of this Sublease by expiration of the Term or
otherwise, (i) all of the other terms and provisions of this Sublease shall
remain in full force and effect during such holdover period, (ii) Subtenant
shall continue to pay Fixed Rent and Supplemental Rent in the amount payable
upon the date of the expiration or earlier termination of this Sublease or such
other amount as Sublessor may indicate, in Sublessor’s sole and absolute
discretion, and (iii) all other payments shall continue under the terms of this
Sublease. Notwithstanding anything here to the contrary, if Subtenant
remains in possession of the Subleased Premises after the expiration or earlier
termination of the Term without the express written consent of Sublessor, (A)
Subtenant shall become a tenant at sufferance upon the terms of this Sublease
except that the monthly rental shall be equal to [***]% of the sum of Fixed Rent
and Supplemental Rent in effect during the last 30 days of the Term, and (B)
Subtenant shall be responsible for all damages suffered by Sublessor resulting
from or occasioned by Subtenant’s holding over, including consequential
damages. No holding over by Subtenant, whether with or without
consent of Sublessor, shall operate to extend this Sublease except as otherwise
expressly provided, and this Section 38 shall not be construed as consent for
Subtenant to retain possession of the Subleased Premises. Acceptance
by Sublessor of Fixed Rent and/or Supplemental Rent after the expiration of the
Term or earlier termination of this Sublease shall not result in a renewal or
reinstatement of this Sublease.
39. SUBTENANT
IMPROVEMENTS. Subject to the penultimate sentence of Paragraph
13, Subtenant shall be responsible for all Subtenant’s Work and Sublessor shall
not be responsible for any improvements not performed by or for
Sublessor. Sublessor shall have no liability in connection with
Subtenant’s Work and Subtenant releases Sublessor from any claim in connection
with, relating to or resulting from the Subtenant’s Work. Sublessor
recognizes that Subtenant will be working directly with Overlandlord with regard
to the construction of such improvements and to the extent that Overlandlord has
approved such improvements, Sublessor shall have no right to object to
same.
***Text
Omitted and Filed Separately with the Securities and Exchange
Commission.
Confidential Treatment Requested Under
17
C.F.R. Sections 200.80(b)(4) and 240.24b-2
40. CONSENTS. If
the consents of Sublessor or Overlandlord are not qualified herein, any such
consent can be withheld, delayed or conditioned in the reasonable discretion of
the consenter unless otherwise provided in the Main Lease with respect to
Overlandlord.
41. RELETTING. Subject
to compliance with applicable laws, any reletting of the Subleased Premises or
any portion thereof shall be on such terms and conditions as Sublessor in its
sole discretion may determine. Sublessor shall not be liable for, nor
shall Subtenant’s obligations hereunder be diminished because of, Sublessor’s
failure to relet the Subleased Premises or collect rent due in respect of such
reletting or otherwise to mitigate any damages arising by reason of Subtenant’s
default.
***Text
Omitted and Filed Separately with the Securities and Exchange
Commission.
Confidential Treatment Requested Under
17
C.F.R. Sections 200.80(b)(4) and 240.24b-2
42. SUBORDINATION. This
Sublease and Subtenant’s interest and rights hereunder are hereby made and shall
be subject and subordinate at all times to the lien of any Mortgage (as
hereinafter defined) now existing or hereafter created on or against the Project
or the Subleased Premises, and all amendments, restatements, renewals,
modifications, consolidations, refinancing, assignments and extensions thereof,
without the necessity of any further instrument or act on the part of
Subtenant. Subtenant agrees, at the election of the Holder (as
hereinafter defined) of any such Mortgage, to attorn to any such
Holder. Subtenant agrees upon demand to execute, acknowledge and
deliver such instruments, confirming such subordination, and such instruments of
attornment as shall be requested by any such Holder. Notwithstanding
the foregoing, any such Holder may at any time subordinate its Mortgage to this
Sublease, without Subtenant’s consent, by notice in writing to Subtenant, and
thereupon this Sublease shall be deemed prior to such Mortgage without regard to
their respective dates of execution, delivery or recording and in that event
such Holder shall have the same rights with respect to this Sublease as though
this Sublease had been executed prior to the execution, delivery and recording
of such Mortgage and had been assigned to such Holder. The term
“Mortgage” whenever used in this Sublease shall be deemed to include deeds of
trust, security assignments and any other encumbrances, and any reference to the
“Holder” of a Mortgage shall be deemed to include the beneficiary under a deed
of trust.
***Text
Omitted and Filed Separately with the Securities and Exchange
Commission.
Confidential Treatment Requested Under
17
C.F.R. Sections 200.80(b)(4) and 240.24b-2
43. TAXES. Included
in Operating Expenses shall be all taxes, levies, fees, community facilities
district fees and/or bonds, assessments and governmental charges of any kind,
existing as of the Commencement Date or thereafter enacted (collectively
referred to as “Taxes”)
imposed by any federal, state, regional, municipal, local or other governmental
authority or agency, including, without limitation, quasi-public agencies
(collectively, “Governmental
Authority”) during the Term, including, without limitation, all
Taxes: (i) imposed on or measured by or based, in whole or in part,
on rent payable to (or gross receipts received by) Sublessor under this Sublease
and/or from the rental by Sublessor of the Project or any portion thereof, or
(ii) based on the square footage, assessed value or other measure or evaluation
of any kind of the Subleased Premises or the Project, or (iii) assessed or
imposed by or on the operation or maintenance of any portion of the Subleased
Premises or the Project, including parking, or (iv) assessed or imposed by, or
at the direction of, or resulting from legal requirements or interpretations
thereof, promulgated by, any Governmental Authority, or (v) imposed as a license
or other fee, charge, tax, or assessment on Sublessor’s business or occupation
of leasing space in the Project. Sublessor may contest by appropriate
legal proceedings the amount, validity, or application of any Taxes or liens
securing Taxes. Taxes shall not include any net income taxes imposed
on Sublessor except to the extent such net income taxes are in substitution for
any Taxes payable hereunder. If any such Tax is levied or assessed
directly against Subtenant, then Subtenant shall be responsible for and shall
pay the same at such times and in such manner as the taxing authority shall
require. Subtenant shall pay, prior to delinquency, any and all Taxes
levied or assessed against any personal property or trade fixtures placed by
Subtenant in the Subleased Premises, whether levied or assessed against
Sublessor or Subtenant. If any Taxes on Subtenant’s personal property
or trade fixtures are levied against Sublessor or Sublessor’s property, or if
the assessed valuation of the Project is increased by a value attributable to
improvements in or alterations to the Subleased Premises, whether owned by
Sublessor or Subtenant and whether or not affixed to the real property so as to
become a part thereof, higher than the base valuation on which Overlandlord from
time-to-time allocates Taxes to all tenants in the Project, Sublessor shall have
the right, but not the obligation, to pay such Taxes. Sublessor’s
reasonable determination of any excess assessed valuation shall be binding and
conclusive, absent manifest error. The amount of any such payment by
Sublessor shall constitute Supplemental Rent due from Subtenant to Sublessor
immediately upon demand.
***Text
Omitted and Filed Separately with the Securities and Exchange
Commission.
Confidential Treatment Requested Under
17
C.F.R. Sections 200.80(b)(4) and 240.24b-2
44. EVENTS OF
DEFAULT. Each of the following events shall be a default
(“Default”) by Subtenant
under this Sublease:
(a.) Payment
Defaults. Subtenant shall fail to pay any installment of Fixed
Rent, Supplemental Rent hereunder when due or any other payment hereunder within
five (5) days of being due.
***Text
Omitted and Filed Separately with the Securities and Exchange
Commission.
Confidential Treatment Requested Under
17
C.F.R. Sections 200.80(b)(4) and 240.24b-2
(b.) Insurance. Any
insurance required to be maintained by Subtenant pursuant to this Sublease shall
be canceled or terminated or shall expire or shall be reduced or materially
changed, or Sublessor shall receive a notice of nonrenewal of any such insurance
and Subtenant shall fail to obtain replacement insurance at least 20 days before
the expiration of the current coverage.
(c.) Abandonment. Subtenant
shall abandon the Subleased Premises; provided, however, that Tenant’s mere
vacation of the Subleased Premises shall not be deemed to be an “abandonment” of
the Subleased Premises provided Subtenant satisfies all of its obligations under
this Sublease.
(d.) Improper
Transfer. Subtenant shall assign, sublease or otherwise
transfer or attempt to transfer all or any portion of Subtenant’s interest in
this Sublease or the Subleased Premises except as expressly permitted herein, or
Subtenant’s interest in this Sublease shall be attached, executed upon, or
otherwise judicially seized and such action is not released within 90 days of
the action.
(e.) Liens. Subtenant
shall fail to discharge or otherwise obtain the release of any lien placed upon
the Subleased Premises in violation of this Sublease within 10 days after any
such lien is filed against the Subleased Premises.
***Text
Omitted and Filed Separately with the Securities and Exchange
Commission.
Confidential Treatment Requested Under
17
C.F.R. Sections 200.80(b)(4) and 240.24b-2
(f.) Insolvency
Events. Subtenant or any guarantor or surety of Subtenant’s
obligations hereunder shall: (A) make a general assignment for the
benefit of creditors; (B) commence any case, proceeding or other action seeking
to have an order for relief entered on its behalf as a debtor or to adjudicate
it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment,
liquidation, dissolution or composition of it or its debts or seeking
appointment of a receiver, trustee, custodian or other similar official for it
or for all or of any substantial part of its property (collectively a “Proceeding for Relief”); (C)
become the subject of any Proceeding for Relief which is not dismissed within 90
days of its filing or entry; or (D) die or suffer a legal disability (if
Subtenant, guarantor, or surety is an individual) or be dissolved or otherwise
fail to maintain its legal existence (if Subtenant, guarantor or surety is a
corporation, partnership or other entity).
(g.) Estoppel Certificate or
Subordination Agreement. Subtenant fails to execute any
estoppel certificate or subordination agreement as required
hereunder.
(h.) Other
Defaults. Subtenant shall fail to comply with any provision of
this Sublease other than those specifically referred to in this Section 44, and,
except as otherwise expressly provided herein, such failure shall continue for a
period of ten (10) business days after written notice thereof from Sublessor to
Subtenant.
45. ACKNOWLEDGEMENT. Subtenant
acknowledges having been advised by Sublessor that Overlandlord intends to
subdivide the legal parcel on which the Building is to be located and in
connection therewith the legal description of the Project will be amended to
reflect the legal parcel on which the Building is located. Under the
Main Lease, Sublessor is not responsible for any expenses incurred by
Overlandlord in connection with this subdivision and Subtenant shall not be
responsible for any expenses incurred by Overlandlord in connection with this
subdivision.
***Text
Omitted and Filed Separately with the Securities and Exchange
Commission.
Confidential Treatment Requested Under
17
C.F.R. Sections 200.80(b)(4) and 240.24b-2
46. ENVIRONMENTAL
SURRENDER. Upon the expiration of the Term or earlier
termination of Subtenant’s right of possession, Subtenant shall surrender the
Subleased Premises to Sublessor in the same condition as received, subject to
any alterations or installations permitted by Sublessor to remain in the
Subleased Premises. Subtenant shall remove all Hazardous Materials
(as hereinafter defined) brought upon, kept, used, stored, handled, treated,
generated in, or released or disposed of from, the Subleased Premises during the
Term by any person other than Sublessor or Overlandlord (collectively, “Subtenant HazMat Operations”)
consistent with prudent commercial practices and such that no Hazardous
Materials remain at the Subleased Premises in violation of Environmental
Requirements and the continued presence of Hazardous Materials are not in excess
of industry standards for the occupancy and re-use of the Subleased Premises for
research and scientific purposes by a subsequent tenant or other occupant of the
Subleased Premises. Subtenant shall also obtain the release of all
Hazardous Materials permits and authorizations issued pursuant to Environmental
Requirements so the Subleased Premises are released for unrestricted use and
occupancy. The Subleased Premises shall be broom clean, ordinary wear
and tear excepted. At least 3 months prior to Subtenant’s surrender
of the Subleased Premises, Subtenant shall deliver to Sublessor a plan detailing
the steps Subtenant shall undertake to deliver the Subleased Premises such that
any Hazardous Materials brought upon, kept, used, stored, handled, treated,
generated in, or released or disposed of from the Subleased Premises during the
Term by any person other than Sublessor [or Overlandlord] are removed from the
Subleased Premises consistent with prudent commercial practices and such that no
Hazardous Materials remain at the Subleased Premises in violation of
Environmental Requirements and the continued presence of Hazardous Materials are
not in excess of industry standards for the occupancy and re-use of the
Subleased Premises for research and scientific purposes by a subsequent tenant
or other occupant of the Subleased Premises (the “Surrender
Plan”). Such Surrender Plan shall be accompanied by a current
listing of (i) all Hazardous Materials licenses and permits held by or on behalf
of Subtenant with respect to the Subleased Premises, and (ii) all Hazardous
Materials used, stored, handled, treated, generated, released or disposed of
from the Subleased Premises, and shall be subject to the review and approval of
Sublessor’s and Overlandlord’s environmental
consultant. Sublessor agrees to conduct its review of the
Surrender Plan within a reasonable period of time considering Subtenant’s
anticipated surrender date. In connection with the review and
approval of the Surrender Plan, upon the request of Sublessor or Overlandlord,
Subtenant shall deliver to Sublessor or its consultant such additional
non-proprietary information concerning Subtenant HazMat Operations as Sublessor
and Overlandlord shall request. On or before such surrender,
Subtenant shall deliver to Sublessor and Overlandlord a Detailed Divestiture
Environmental Assessment (“DDESA”) consistent with a form
provided by Sublessor at its option, evidencing that the approved Surrender Plan
shall have been satisfactorily completed and Sublessor and Overlandlord shall
have the right to cause Overlandlord’s and/or Sublessor’s environmental
consultant to inspect the Subleased Premises and perform such additional
procedures as may be deemed reasonably necessary to confirm that, as of the
effective date of such surrender or early termination of the Sublease, the
Surrender Plan has been satisfactorily completed and Subtenant has removed all
Hazardous Materials brought upon, kept, used, stored, handled, treated,
generated in, or released or disposed of at, on, under or from the Subleased
Premises during the Term by any person other than Sublessor consistent with
prudent commercial practices and such that no Hazardous Materials remain at the
Subleased Premises in violation of Environmental Requirements and the continued
presence of Hazardous Materials are not in excess of industry standards for the
occupancy and re-use of the Subleased Premises for research and scientific
purposes by a subsequent tenant or other occupant of the Subleased
Premises. Sublessor shall have the unrestricted right to deliver such
Surrender Plan and any report by Overlandlord’s or Sublessor’s environmental
consultant with respect to the surrender of the Subleased Premises to third
parties.
***Text
Omitted and Filed Separately with the Securities and Exchange
Commission.
Confidential Treatment Requested Under
17
C.F.R. Sections 200.80(b)(4) and 240.24b-2
If Subtenant shall fail to prepare or
submit a Surrender Plan approved by Sublessor and Overlandlord, or if Subtenant
shall fail to complete the approved Surrender Plan, or if such Surrender Plan,
whether or not approved by Sublessor or Overlandlord, shall fail to adequately
address any Hazardous Materials remaining at the Subleased Premises in violation
of Environmental Requirements or not consistent with prudent commercial
practices such that the continued presence of Hazardous Materials are in excess
of industry standards for the occupancy and re-use of the Subleased Premises for
research and scientific purposes by a subsequent tenant or other occupant of the
Subleased Premises, Sublessor or Overlandlord shall have the right, after
reasonable written notice to Subtenant and opportunity to cure, to take such
actions as Sublessor or Overlandlord, as the case may be, may deem reasonable or
appropriate to assure that no Hazardous Materials remain at the Subleased
Premises in violation of Environmental Requirements or contrary to prudent
commercial practices and the continued presence of Hazardous Materials are not
in excess of industry standards for the occupancy and re-use of the Subleased
Premises for research and scientific purposes by a subsequent tenant or other
occupant of the Subleased Premises, the cost of which actions shall be
reimbursed by Subtenant as Supplemental Rent, without regard to the limitation
set forth in the first paragraph of this Section 46.
***Text
Omitted and Filed Separately with the Securities and Exchange
Commission.
Confidential Treatment Requested Under
17
C.F.R. Sections 200.80(b)(4) and 240.24b-2
Subtenant shall immediately return to
Sublessor all keys and/or access cards to parking, the Project, restrooms or all
or any portion of the Subleased Premises furnished to or otherwise procured by
Subtenant. If any such access card or key is lost, Subtenant shall
pay to Sublessor, at Sublessor’s election, either the cost of replacing such
lost access card or key or the cost of reprogramming the access security system
in which such access card was used or changing the lock or locks opened by such
lost key. Any Subtenant’s property,
alterations, installations and property not so removed by Subtenant
as permitted or required herein shall be deemed abandoned and may be stored,
removed, and disposed of by Sublessor at Subtenant’s expense, and Subtenant
waives all claims against Sublessor for any damages resulting from Sublessor’s
retention and/or disposition of such property. All obligations of
Subtenant hereunder not fully performed as of the termination of the Term,
including the obligations of Subtenant under Section 47 hereof, shall survive
the expiration or earlier termination of the Term, including, without
limitation, indemnity obligations, payment obligations with respect to Rent and
obligations concerning the condition and repair of the Subleased
Premises.
***Text
Omitted and Filed Separately with the Securities and Exchange
Commission.
Confidential Treatment Requested Under
17
C.F.R. Sections 200.80(b)(4) and 240.24b-2
47. ENVIRONMENTAL
REQUIREMENTS.
(a.) Prohibition/Compliance/Indemnity. Subtenant
shall not cause or permit any Hazardous Materials (as hereinafter defined) to be
brought upon, kept, used, stored, handled, treated, generated in or about, or
released or disposed of from, the Subleased Premises or the Project in violation
of applicable Environmental Requirements (as hereinafter defined) by Subtenant
or any of Subtenant's agents, servants, employees, invitees and contractors
(collectively, "Subtenant Party"). If Subtenant breaches the
obligation stated in the preceding sentence, or if the presence of Hazardous
Materials in the Subleased Premises during the Term or any holding over results
in contamination of the Subleased Premises, the Project or any adjacent property
or if contamination of the Subleased Premises, the Project or any adjacent
property by Hazardous Materials brought into, kept, used, stored, handled,
treated, generated in or about, or released or disposed of from, the Subleased
Premises by anyone other than Sublessor or Overlandlord otherwise occurs during
the Term or any holding over, Subtenant hereby indemnifies and shall defend and
hold Sublessor, its officers, directors, employees, agents and contractors
harmless from any and all actions (including, without limitation, remedial or
enforcement actions of any kind, administrative or judicial proceedings, and
orders or judgments arising out of or resulting therefrom), costs, claims,
damages (including, without limitation, punitive damages and damages based upon
diminution in value of the Subleased Premises or the Project, or the loss of, or
restriction on, use of the Subleased Premises or any portion of the Project),
expenses (including, without limitation, attorneys’, consultants’ and experts’
fees, court costs and amounts paid in settlement of any claims or actions),
fines, forfeitures or other civil, administrative or criminal penalties,
injunctive or other relief (whether or not based upon personal injury, property
damage, or contamination of, or adverse effects upon, the environment, water
tables or natural resources), liabilities or losses (collectively, “Environmental Claims”) which
arise during or after the Term as a result of such
contamination. This indemnification of Sublessor by Subtenant
includes, without limitation, costs incurred in connection with any
investigation of site conditions or any cleanup, treatment, remedial, removal,
or restoration work required by any federal, state or local Governmental
Authority because of Hazardous Materials present in the air, soil or ground
water above, on, or under the Subleased Premises. Without limiting
the foregoing, if the presence of any Hazardous Materials on the Subleased
Premises, the Project or any adjacent property caused or permitted by Subtenant
or any Subtenant Party results in any contamination of the Subleased Premises,
the Project or any adjacent property, Subtenant shall promptly take all actions
at its sole expense and in accordance with applicable Environmental Requirements
as are necessary to return the Subleased Premises, the Project or any adjacent
property to the condition existing prior to the time of such contamination,
provided that Sublessor’s approval of such action shall first be obtained, which
approval shall not unreasonably be withheld so long as such actions would not
potentially have any material adverse long-term or short-term effect on the
Subleased Premises or the Project. Notwithstanding anything to the
contrary in this Section 47(a), Subtenant shall not be required to indemnify
Sublessor for any Environmental Claims arising out of any releases of Hazardous
Materials that Subtenant proves occurred prior to the Commencement Date and were
not caused, contributed to or exacerbated by any act or omission of Subtenant or
any Subtenant Party.
***Text
Omitted and Filed Separately with the Securities and Exchange
Commission.
Confidential Treatment Requested Under
17
C.F.R. Sections 200.80(b)(4) and 240.24b-2
(b.) Business. Sublessor
acknowledges that it is not the intent of this Section 47 to prohibit Subtenant
from using the Subleased Premises for the Permitted Use. Subtenant
may operate its business according to prudent industry practices so long as the
use or presence of Hazardous Materials is strictly and properly monitored
according to all then applicable Environmental Requirements. As a
material inducement to Sublessor to allow Subtenant to use Hazardous Materials
in connection with its business, Subtenant agrees to deliver to Sublessor prior
to the Commencement Date a list identifying each type of Hazardous Materials to
be brought upon, kept, used, stored, handled, treated, generated on, or released
or disposed of from, the Subleased Premises and setting forth any and all
governmental approvals or permits required in connection with the presence, use,
storage, handling, treatment, generation, release or disposal of such Hazardous
Materials on or from the Subleased Premises (“Hazardous Materials
List”). Subtenant shall deliver to Sublessor an updated
Hazardous Materials List annually on the anniversary of the Commencement
Date. Subtenant shall deliver to Sublessor true and correct copies of
the following documents (the “Haz Mat Documents”) promptly
upon the receipt or submission thereof by Subtenant: notices of
actual or alleged violations of or potential responsibility under any
Environmental Requirements with respect to the Subleased Premises; any
Environmental Claims; correspondence received or submitted by the Subtenant
relating to any actual or alleged spills, releases or threatened of Hazardous
Materials on, under, to or from the Subleased Premises and any associated or
required response or remedial actions; plans relating to the installation of any
storage tanks to be installed in or under the Project (provided, said
installation of tanks shall only be permitted after Sublessor has given
Subtenant its written consent to do so, which consent may be withheld in
Sublessor’s sole and absolute discretion); all closure plans or any other
documents required by any and all federal, state and local Governmental
Authorities for any storage tanks installed in, on or under the Project for the
closure of any such tanks; and a Surrender Plan (to the extent surrender in
accordance with Section 47 cannot be accomplished in 3
months). Subtenant is not required, however, to provide Sublessor
with any portion(s) of the Haz Mat Documents containing information of a
proprietary nature which, in and of themselves, do not contain a reference to
any Hazardous Materials or hazardous activities. It is not the intent
of this Section to provide Sublessor with information which could be detrimental
to Subtenant’s business should such information become possessed by Subtenant’s
competitors.
***Text
Omitted and Filed Separately with the Securities and Exchange
Commission.
Confidential Treatment Requested Under
17
C.F.R. Sections 200.80(b)(4) and 240.24b-2
(c.) Subtenant Representation and
Warranty. Subtenant hereby represents and warrants to
Sublessor that Subtenant is not subject to any enforcement order issued by any
Governmental Authority in connection with the use, storage, handling, treatment,
generation, release or disposal of Hazardous Materials (including, without
limitation, any order related to the failure to make a required reporting to any
Governmental Authority). If Sublessor determines that this
representation and warranty was not true as of the date of this Sublease,
Sublessor shall have the right to terminate this Sublease in Sublessor’s sole
and absolute discretion.
***Text
Omitted and Filed Separately with the Securities and Exchange
Commission.
Confidential Treatment Requested Under
17
C.F.R. Sections 200.80(b)(4) and 240.24b-2
(d.) Testing. Sublessor
shall have the right to conduct annual tests of the Subleased Premises to
determine whether any contamination of the Subleased Premises or the Project has
occurred as a result of Subtenant’s use unless (i) Overlandlord has conducted
testing during the subject year, the scope and results of which are reasonably
satisfactory to Sublessor; and (ii) Overlandlord has provided copies of the test
results and other associated documentation and data to Sublessor. In
connection with such testing, upon the request of Sublessor, Subtenant shall
deliver to Sublessor or its consultant such non-proprietary information
concerning the use of Hazardous Materials in or about the Subleased Premises by
Subtenant or any Subtenant Party. If contamination has occurred for
which Subtenant is liable under this Section 47, Subtenant shall pay all costs
to conduct such tests. If no such contamination is found, Sublessor
shall pay the costs of such tests (which shall not constitute an Operating
Expense). Sublessor shall provide Subtenant with a copy of all third
party, non-confidential reports and tests of the Subleased Premises made by or
on behalf of Sublessor or received from Overlandlord during the Term without
representation or warranty and subject to a confidentiality
agreement. Subtenant shall, at its sole cost and expense, promptly
and satisfactorily remediate any environmental conditions identified by such
testing in accordance with all Environmental Requirements other than any such
environmental conditions that Subtenant proves existed prior to the Commencement
Date. Subtenant shall be entitled to conduct its own tests of the Subleased
Premises and the Project using third party contactors to refute any finding made
by the Sublessor or Overlandlord that attributes releases of Hazardous Materials
to the Subtenant. Sublessor’s receipt of or satisfaction with any
environmental assessment in no way waives any rights which Sublessor may have
against Subtenant. Subtenant shall provide access to Overlandlord to
the Subleased Premises and the Project to enable Overlandlord to carry out its
rights and obligations under the Main Lease, including but not limited to, its
rights to conduct testing pursuant to Section 30 of the Main Lease.
***Text
Omitted and Filed Separately with the Securities and Exchange
Commission.
Confidential Treatment Requested Under
17
C.F.R. Sections 200.80(b)(4) and 240.24b-2
(e.) Control
Areas. Subtenant shall be allowed to utilize up to its pro
rata share of the Hazardous Materials inventory within any control area or zone
(located within the Subleased Premises), as designated by the applicable
building code, for chemical use or storage. As used in the preceding
sentence, Subtenant's pro rata share of any control areas or zones located
within the Subleased Premises shall be determined based on the rentable square
footage that Subtenant leases within the applicable control area or
zone. For purposes of example only, if a control area or zone
contains 10,000 rentable square feet and 2,000 rentable square feet of a
Subtenant's premises are located within such control area or zone (while such
premises as a whole contains 5,000 rentable square feet), the applicable
Subtenant's pro rata share of such control area would be 20%.
(f.) Underground
Tanks. If underground or other storage tanks storing Hazardous
Materials located on the Subleased Premises or the Project are used by Subtenant
or are hereafter placed on the Subleased Premises or the Project by Subtenant,
Subtenant shall install, use, monitor, operate, maintain, upgrade and manage
such storage tanks, maintain appropriate records, obtain and maintain
appropriate insurance, implement reporting procedures, properly close any
underground storage tanks, and take or cause to be taken all other actions
necessary or required under applicable state and federal Legal Requirements, as
such now exists or may hereafter be adopted or amended in connection with the
installation, use, maintenance, management, operation, upgrading and closure of
such storage tanks.
(g.) Subtenant’s
Obligations. Subtenant’s obligations under this Section 47
shall survive the expiration or earlier termination of this
Sublease. During any period of time after the expiration or earlier
termination of this Sublease required by Subtenant or Sublessor to complete the
removal from the Subleased Premises of any Hazardous Materials (including,
without limitation, the release and termination of any licenses or permits
restricting the use of the Subleased Premises and the completion of the approved
Surrender Plan), Subtenant shall continue to pay the full Fixed Rent and
Supplemental Rent in accordance with this Sublease for any portion of the
Subleased Premises not relet by Sublessor in Sublessor’s sole discretion, which
Fixed Rent and Supplemental Rent shall be prorated daily.
***Text
Omitted and Filed Separately with the Securities and Exchange
Commission.
Confidential Treatment Requested Under
17
C.F.R. Sections 200.80(b)(4) and 240.24b-2
(h.) Definitions. As
used herein, the term “Environmental Requirements”
means all applicable present and future statutes, regulations, ordinances,
rules, codes, judgments, orders or other similar enactments of any Governmental
Authority regulating or relating to health, safety, or environmental conditions
on, under, or about the Subleased Premises or the Project, or the environment,
including without limitation, the following: the Comprehensive
Environmental Response, Compensation and Liability Act; the Resource
Conservation and Recovery Act; and all state and local counterparts thereto, and
any regulations or policies promulgated or issued thereunder. As used
herein, the term “Hazardous
Materials” means and includes any substance, material, waste, pollutant,
or contaminant listed or defined as hazardous or toxic, or regulated by reason
of its impact or potential impact on humans, animals and/or the environment
under any Environmental Requirements, asbestos and petroleum, including crude
oil or any fraction thereof, natural gas liquids, liquefied natural gas, or
synthetic gas usable for fuel (or mixtures of natural gas and such synthetic
gas). As defined in Environmental Requirements, Subtenant is and
shall be deemed to be the “operator” of the Subleased
Premises and the “owner”
of all Hazardous Materials brought on the Subleased Premises by Subtenant or any
Subtenant Party, and the wastes, by-products, or residues generated, resulting,
or produced therefrom.
48. DEFAULT BY SUBLESSOR UNDER
THE MAIN LEASE. In the event Sublessor shall default in the
payment of any rental obligation under the Main Lease, Subtenant shall have the
right, but not the obligation, to attempt to remedy such
default. Sublessor agrees to send promptly to Subtenant a copy of any
notice of default received by the Sublessor from the Overlandlord under the Main
Lease.
***Text
Omitted and Filed Separately with the Securities and Exchange
Commission.
Confidential Treatment Requested Under
17
C.F.R. Sections 200.80(b)(4) and 240.24b-2
49. QUIET
ENJOYMENT. Except as otherwise provided herein, so long as
Subtenant complies with all terms and provisions of this Sublease, Subtenant
shall have peaceful and quiet enjoyment of the Subleased Premises against any
person claiming by, through or under Sublessor; provided, however, nothing
herein shall limit or prohibit Sublessor’s ability to terminate this Sublease
with the consent of Overlandlord and Sublessor shall have no liability hereunder
in the case of such a termination.
50. ROOF. Subtenant
shall have the use of the roof space leasing rights granted to Sublessor
pursuant to Section 43(p) of the Lease; provided, however, that Subtenant
complies with all applicable provisions of the Lease (including all of
Sublessor’s applicable duties, liabilities and obligations) with respect to such
rights.
***Text
Omitted and Filed Separately with the Securities and Exchange
Commission.
Confidential Treatment Requested Under
17
C.F.R. Sections 200.80(b)(4) and 240.24b-2
IN
WITNESS WHEREOF, Sublessor and Subtenant have hereunto executed this Sublease as
of the day and year first above written.
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SUBLESSOR:
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PFIZER
INC.
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By:
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[***]
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Name:
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[***]
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By:
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[***]
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SUBLESSEE:
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By:
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[***]
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Name:
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[***]
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By:
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[***]
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