ASSIGNMENT AND ASSUMPTION OF LEASE
Exhibit 10.1
This ASSIGNMENT AND ASSUMPTION OF LEASE (the “Assignment”) is made as of May 1, 2006, by and
between CANCERVAX CORPORATION, a Delaware corporation (“Assignor”), and AMERICAN BIOSCIENCE, INC.,
a California corporation (“Assignee”).
Recitals
A. Original Lease. Assignor is the tenant under that certain Lease dated July 22,
1999 (the “Original Lease”) between Assignor (as successor in interest to Xxxx Xxxxx Cancer
Institute, a non-profit corporation) and Marina Business Center, L.L.C., a Delaware limited
liability company (as successor in interest to Xxxxxxx Properties, L.P., a California limited
partnership, the “Landlord”), for 50,750 rentable square feet of space located at 0000 Xxxxxxx
Xxxxxx, Xxxxxx Xxx Xxx, Xxxxxxxxxx (the “Premises”).
B. Amendments. The Original Lease was amended by: (a) that certain First Amendment
of Lease dated October 1, 2001, (b) that certain Second Amendment to Lease dated September 4, 2002,
(c) that certain Third Amendment dated November 14, 2003, and (d) that certain Fourth Amendment to
Lease dated January 18, 2005. The Original Lease, as so amended, shall hereinafter be referred to
as the “Lease.” Capitalized terms used herein without definition shall have the meaning given in
the Lease. A copy of the Lease is attached hereto as Exhibit A.
C. Assignment to Assignee. Assignor desires to assign all of Assignor’s right, title
and interest in, to and under the Lease and the Premises to Assignee, and Assignee desires to
assume and to perform all of Assignor’s duties and obligations under the Lease, all in accordance
with the terms and conditions hereinafter set forth.
Agreement
NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, Assignor and Assignee mutually agree as follows:
1. Assignment. Assignor hereby assigns to Assignee all of its right, title and
interest in, to and under the Lease and the Premises (including all of Assignor’s right, title and
interest in and to any prepaid rents that have been paid by Assignor under the Lease for any period
after the Commencement Date). Assignee accepts this assignment, assumes all of Assignor’s
obligations under the Lease, and agrees to be bound by all of the provisions of the Lease and to
perform all of the obligations of the tenant under the Lease as a direct obligation to Landlord
from and after the Commencement Date. This assignment and assumption is made on, and subject to,
all of the terms, conditions and covenants of this Assignment.
2. Commencement Date. The “Commencement Date” of this Assignment shall be the later
of: (a) the date that this Assignment is executed by both the Assignor and the Assignee, (b) the
date the Landlord executes the Landlord Consent and Estoppel, and (c) May 1, 2006.
3. Base Rent. Notwithstanding the foregoing, on the Commencement Date, Assignor
hereby agrees to pay Landlord the Base Rent due and owing for the months of April,
May and June, 2006. Assignee is hereby released of its obligation to pay Base Rent under the
Lease for such months.
4. Condition of Premises. The Premises will be delivered by Assignor to Assignee in
“as is” condition with: (i) all those items of furniture, fixture and equipment set forth in
Exhibit B, attached hereto (the “FF&E”), including the phone systems, hand sets and data connection
systems, and (ii) all intangible personal property set forth in Exhibit C, attached hereto (the
“Intangible Personal Property”). All FF&E and Intangible Personal Property will be and become the
property of Assignee on the Commencement Date.
5. Default Notices. Should Assignee receive written notice from Landlord with respect
to any actual or purported breach or default by Assignee under the Lease, then Assignee shall
deliver within three (3) business days after receipt thereof, a copy of such notice to Assignor.
In the event that any of the events described in Section 26(A) of the Original Lease occurs, then
Assignee shall deliver, on or before a date that is three (3) business days after the date upon
which such event becomes an event of default under Section 26(A), written notice of such default or
breach to Assignor. Should Assignor receive written notice from Landlord with respect to any
actual or purported breach or default by Assignee under the Lease, then Assignor shall deliver,
within three (3) business days after receipt thereof, a copy of such notice to Assignee.
6. Assignor’s Cure Right. Having no obligation to do so, Assignor may cure any actual
or purported default or breach under Section 26(A) of the Original Lease if (a) Assignee is not
pursuing a cure for such default within five (5) business days of receiving notice of Assignee’s
default. Assignee shall reimburse Assignor for the amount paid by Assignor to cure such default
plus interest on such amount from the date incurred until the date paid at a rate of six percent
(6%) per annum simple interest. Assignee shall pay any amount that Assignee must pay to Assignor
pursuant to this Paragraph on or before the fifteenth (15th) day after Assignor demands payment.
7. No Further Modification Without Assignor Consent. Assignee shall not modify or
amend the Lease after the Commencement Date without first obtaining the express written consent of
Assignor.
8. Indemnification. Assignee shall protect, defend, indemnify and hold Assignor
harmless from all costs, expenses, claims, causes of action and damages (including, without
limitation, reasonable attorney fees and costs), which arise in connection with the Lease (as the
same may be amended from time to time after the Commencement Date) and the Premises from and after
the Commencement Date. Assignor shall protect, defend, indemnify and hold Assignee harmless from
all costs, expenses, claims, causes of action and damages (including, without limitation,
reasonable attorney fees and costs), which arose in connection with the Lease and the Premises
(including, without limitation, any costs, expenses, claims, causes of action and damages with
respect to any hazardous materials located on, about or under the Premises) prior to the
Commencement Date.
9. Rent Payments. Within two (2) business days after the date that each payment
required to be made by the tenant under the Lease is due and payable by the tenant, Assignee
shall deliver commercially reasonable evidence to Assignor that such payment was made on or
before such date.
10. Security Deposit. Assignor and Assignee shall cause Landlord to release
Assignor’s existing letter of credit in the amount of $650,000. On or before the Commencement
Date, Assignee shall replace such letter of credit with a new letter of credit in the amount of
$650,000, naming Landlord as the beneficiary. In the event Assignee does not comply with the
provisions of this Section 10, Assignor shall have the right to terminate this Assignment.
11. Letter of Credit. On or before the Commencement Date, Assignor shall have
delivered to Assignee an unconditional, irrevocable, standby letter of credit in the amount of
$1,000,000, which letter of credit shall (i) be in form reasonably acceptable to Assignee, (ii) be
issued by a financial institution selected by Assignor and reasonably acceptable to Assignee, (iii)
be for the benefit of Assignee, and (iv) be payable in accordance with performing the removal of
certain tenant improvements located on the Premises, as described in Article III.D of the Fourth
Amendment to the Lease; provided, however, the Letter of Credit shall not be used to pay for
improvements to the Premises, or damage to the Premises, caused by Assignee from and after the date
hereof.
12. Governing Law. This Assignment shall be governed by and construed under the
internal laws of the State of California.
13. Notice. Any notice, request, demand or other communication required or permitted
hereunder shall be given in writing and sent by (a) personal delivery; (b) overnight nationwide
delivery service with proof of delivery; or (c) registered or certified mail, return receipt
requested, postage prepaid; and addressed to the parties at the addresses indicated below (or to
any other address designated by Assignor or Assignee in writing and given in the manner set forth
herein).
(a) Assignor’s Address. If to Assignor, at the following address:
(b) Assignee’s Address. If to Assignee, at the following address:
American Biosciences, Inc.
0000 Xxxxxxxx Xxxx., Xxxxx 000
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxx, Esq.
0000 Xxxxxxxx Xxxx., Xxxxx 000
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxx, Esq.
Any notice or communication given in accordance with the foregoing shall be deemed to have been
given as of the date of delivery.
14. Attorneys Fees and Legal Expenses. In the event of any litigation between the
parties hereto, concerning any breach of any of the covenants or agreements contained herein, or
any material inaccuracies in any of the representations or warranties on the part of either party
arising out of this Assignment, the prevailing party shall be entitled to reasonable attorneys fees
and legal expenses, including, but not limited to, court costs.
15. Further Assurances. Each party to this Assignment will, at its own cost and
expense, execute and deliver such further documents and instruments and will take such other
actions as may be reasonably required or appropriate to evidence or carry out the intent and
purpose of this Assignment.
16. Entire Assignment; Waiver. This Assignment constitutes the final, complete and
exclusive statement between the parties to this Assignment pertaining to the terms of Assignor’s
assignment of the Lease and the Premises to Assignee, supersedes all prior and contemporaneous
understandings or agreements of the parties, and is binding on and inures to the benefit of their
respective heirs, representatives, successors and assigns. Neither party has been induced to enter
into this Assignment by, nor is either party relying on any representation or warranty outside
those expressly set forth in this Assignment. Any agreement made after the date of this Assignment
is ineffective to modify, waive, or terminate this Assignment, in whole or in part, unless that
agreement is in writing, is signed by the parties to this Assignment, and specifically states that
agreement modifies this Assignment.
17. Severability. If any term or provision of this Assignment is, to any extent, held
to be invalid or unenforceable, the remainder of this Assignment will not be affected, and each
term or provision of this Assignment will be valid and be enforced to the fullest extent permitted
by law. If the application of any term or provision of this Assignment to any person or
circumstances is held to be invalid or unenforceable, the application of that term or provision to
persons or circumstances other than those as to which it is held invalid or unenforceable, will not
be affected, and each term or provision of this Assignment will be valid and be enforced to the
fullest extent permitted by law.
18. Consent of Landlord. The Landlord’s written consent to this Assignment in
accordance with Article 21 of the Lease is a condition precedent to the validity of this
Assignment.
19. Brokers. The parties to this Assignment represent and warrant to each other that
neither party dealt with any broker or finder in connection with the consummation of this
Assignment and each party agrees to protect, defend, indemnify, and hold the other party harmless
from and against any and all claims or liabilities for brokerage commissions or finder’s fees
arising out of that party’s acts in connection with this Assignment. The provisions of this
Section 19 shall survive the expiration or earlier termination of this Assignment and the Lease.
20. Section Headings. The section headings contained in this Assignment are for
convenience only and shall in no way enlarge or limit the scope or meaning of the various and
several sections hereof.
21. Binding Effect. The terms and provisions of this Assignment shall inure to the
benefit of and be binding upon the parties hereto and their respective heirs, legal
representatives, successors and assigns.
22. Counterpart. This Assignment may be executed in multiple counterparts, each of
which shall be deemed to be an original and all of which shall constitute one and the same
instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Assignment as of the date first
above written.
| ASSIGNOR: | ||||||
| CANCERVAX CORPORATION, | ||||||
| a Delaware corporation | ||||||
| By: | /s/ Xxxxx X. Xxxx | |||||
| Name: | Xxxxx X. Xxxx | |||||
| Title: | President and CEO | |||||
| ASSIGNEE: | ||||||
| AMERICAN BIOSCIENCES, INC., | ||||||
| a California corporation | ||||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||||
| Name: | Xxxxxxx X. Xxxxxx | |||||
| Title: | General Counsel | |||||
