EXHIBIT 10.1
*Certain confidential information contained in this document, marked by
brackets, has been omitted and filed with the Securities and Exchange Commission
pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
SUBLEASE AGREEMENT
THIS SUBLEASE AGREEMENT (this "Sublease") is entered into by
and between XXXXXXX PHARMACEUTICAL, INC., a Delaware corporation ("Sublessor"),
and GRYPHON THERAPEUTICS, INC., a California corporation ("Sublessee"), as of
April 4, 2003. Sublessor and Sublessee hereby agree as follows:
1. DEFINED TERMS. The following terms shall have the following
meanings:
Actual Cash Burn means the amount, if any, by which
Sublessee's total operating cash expenses (including, without
limitation, up-front license fees and research payments) exceeds its
operating cash revenue (including realized gains from short-term and
long-term investments but excluding funds received from the sale of
assets, other than in the ordinary course of business, and funds
received from the sale or issuance of securities of Sublessee).
Additional Rent has the meaning set forth in Section 6(b) of
this Sublease.
Base Rent means the following monthly triple net base rental
rates per square foot of rentable square feet:
Period Rentable Square Feet ("RSF") Base Rent per Month per RSF
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Commencement Date- 30,200 (comprised of 5,000 RSF of [*]
October 31, 2003 2nd floor Premises as depicted on
Exhibit B-1 and 25,200 of ground
floor Premises as depicted on
Exhibit B-2)**
**Less all or any of the 6,420 RSF of
the ground floor Premises for which
the decommissioning has not been
completed in accordance with
Section 3(d) hereof
November 1, 2003- Through December 31, 2003: [*]
February 29, 2004 30,200**
Thereafter: 50,400**
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March 1, 2004- 50,400** [*]
February 28, 2005
March 1, 2005- 50,400** [*]
February 28, 2006
March 1, 2007- 50,400** [*]
February 28, 2007
March 1, 2007- 50,400** [*]
February 29, 2008
March 1, 2008- 50,400** [*]
February 28, 2009
March 1, 2009- 50,400** [*]
February 28, 2010
March 1, 2010- 50,400** [*]
November 13, 2010
Building means the office building located at 000 Xxxxxxx
Xxxxxxxxx, Xxxxx Xxx Xxxxxxxxx, Xxxxxxxxxx.
Commencement Date means May 1, 2003.
Environmental Laws has the meaning set forth in the Lease.
Expiration Date means the earliest of (i) the date the Lease
terminates in accordance with its terms (subject to any
nondisturbance agreement that Sublessee may have with
Landlord), (ii) the date this Sublease terminates in
accordance with its terms, or (iii) November 13, 2010.
FF&E has the meaning set forth in Section 3(a) of this
Sublease.
Hazardous Materials has the meaning set forth in the Lease.
Issuer has the meaning set forth in Section 7(b) of this
Sublease.
Landlord means Gateway Boulevard Associates, LLC, a California
limited liability company, and its successors and assigns.
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Landlord's Address means c/o The Raiser Organization, 000
Xxxxx Xxxxxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx
00000; Attn: Xxxxxxx X. Xxxxxx.
Lease means that certain Lease Agreement dated November 7,
1997, between the predecessor-in-interest of Landlord, as
landlord, and Sublessor, as tenant; as amended by that certain
First Amendment to Lease Agreement dated as of November 10,
1998, that certain Second Amendment to Lease Agreement dated
May 19, 2000, and Amended and Restated Agreement Concerning
Sublease Profits dated May 23, 2002; a copy of the Lease is
attached hereto as Exhibit A.
Letter of Credit has the meaning set forth in Section 7(b) of
this Sublease.
Permitted Uses means all uses permitted under the Lease or
Landlord's consent to this Sublease.
Premises means that portion of the premises demised to
Sublessor under the Lease consisting of (i) from the
Commencement Date through December 31, 2003, approximately
30,200 RSF (comprised of five thousand (5,000) RSF on the
second floor of the Building, as depicted on Exhibit B-1, and
approximately twenty-five thousand two hundred (25,200) RSF on
the ground floor of the Building, as depicted on Exhibit B-2),
less all or any portion of the 6,420 RSF of the ground floor
Premises for which the decommissioning has not been completed
in accordance with Section 3(d), and (ii) from January 1, 2004
through November 13, 2010, approximately fifty thousand four
hundred (50,400) RSF constituting the entire Building (i.e.
the entirety of the premises demised to Sublessor under the
Lease), by expansion into the premises on the second floor
depicted on Exhibit B-3 (approximately 20,200 RSF), less all
or any portion of the 6,420 RSF of the ground floor Premises
for which the decommissioning has not been completed in
accordance with Section 3(d).
Pro Rata Share means the percentage obtained by dividing the
rentable square footage subleased by Sublessee by the
corresponding rentable square footage of the Project. As of
the Rent Commencement Date, Sublessee's Pro Rata Share shall
be 15.75%, plus the percentage allocable to any of the 6,420
RSF of the ground floor Premises for which the decommissioning
has been completed in accordance with Section 3(d).
Project means the project consisting of three two-story office
and research and development buildings consisting of
approximately 151,000 RSF located on approximately 7.5 acres
of land commonly known as Lot 2B of the Gateway Center and
referred to as the Gateway Technology Center, together with
the land and improvements on which the Project is situated and
all common areas.
Rent Commencement Date means November 1, 2003.
Security Deposit has the meaning set forth in Section 7(a) of
this Sublease.
Sublessee means Gryphon Therapeutics, Inc., a California
corporation.
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Sublessee's Address means, until Rent Commencement Date, 000
Xxxx Xxxxx Xxxxxx, Xxxxx 00, Xxxxx Xxx Xxxxxxxxx, Xxxxxxxxxx
00000, and thereafter at the Premises.
Sublessee's Property has the meaning set forth in Section
10(b) of this Sublease.
Sublessor means Xxxxxxx Pharmaceutical, Inc., a Delaware
corporation.
Sublessor's Address means 0000 Xxxxxxxx, Xxxxx 000, Xxxxxxx,
XX 00000.
Term has the meaning set forth in Section 9 of this Sublease.
Capitalized terms used but not defined herein shall have the meanings
given to them in the Lease.
2. SUBLEASE. Sublessor hereby subleases to Sublessee, and Sublessee
hereby subleases from Sublessor, the Premises for the Term, upon all of the
terms, covenants and conditions contained herein.
3. CONDITION OF PREMISES.
(a) Sublessor's Removal of Personal Property. Sublessor
agrees that prior to the Commencement Date (and thereafter prior to the date on
which Sublessee is entitled to occupy any portion of the Premises), Sublessor
shall remove, or cause to be removed, from the portion of the Premises to be
occupied by Sublessee all of Sublessor's personal property, except those items
described on Schedule I attached hereto (the "FF&E") to be leased from Sublessor
by Sublessee pursuant to a Personal Property Lease Agreement of even date
herewith (the "FF&E Lease"). Except for the FF&E, Sublessor shall remove, or
cause to be removed, all of its personal property from the Premises no later
than January 1, 2004.
(b) "As is" Condition of Premises. Except as otherwise
provided in this Section 3 and in Section 13, Sublessee shall accept possession
of the Premises in its present "as is" condition, "broom clean", without
representation or warranty as to its condition or suitability for Sublessee's
intended use, and with no obligation on the part of Sublessor to make any
alterations or modifications to the Premises or any area outside the Premises
for the benefit of Sublessee. Without limiting the generality of the foregoing,
except as provided in this Section 3, Sublessor makes no representation or
warranty, express or implied, as to the fitness, suitability or operating
condition of any aspect or item of the FF&E.
(c) Slab Water Intrusion. Sublessor has disclosed to
Sublessee that there may be some evidence of water vapor penetration through the
concrete slab on the ground floor of the Premises (the "Slab Water Intrusion").
The repair and remediation of the Slab Water Intrusion shall be undertaken in
accordance with the provisions of the written consent of Landlord described in
Section 4(a). Notwithstanding anything to the contrary contained in the Lease or
this Sublease, Sublessee shall have no responsibility for the repair or
remediation of any such Slab Water Intrusion or any loss or expense relating
thereto, except to the extent specifically provided under such written consent
of Landlord. Nothing herein shall be deemed an admission by Sublessor of any
liability or responsibility by Sublessor for any condition with regard to the
Slab
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Water Intrusion as against Landlord and Sublessor specifically reserves all
rights and remedies it may have against Landlord with respect to the Slab Water
Intrusion. In the event that the condition or the repair of the Slab Water
Intrusion renders any portion of the Premises untenantable (other than if such
condition or repair results from Sublessee's breach of its express obligations
under such written consent of Landlord), the Base Rent and Additional Rent
payable hereunder shall be equitably abated in proportion to the portion of the
Premises so rendered untenantable as reasonably determined by Sublessee until
such time as such portion of the Premises becomes tenantable; provided, however,
that if Sublessor does not agree with Sublessee's determination, and the parties
cannot agree, despite their diligent, good faith efforts, as to such
untenantable portion within fourteen (14) days thereafter, then either party
may, upon written notice to the other, request that an appointment of an
arbitrator be made by any judge sitting for a state or Federal court of
competent jurisdiction in San Francisco, California, and such arbitrator shall
determine such untenantable portion, which such determination shall be binding
on the parties. The fees of such arbitrator shall be borne equally by the
parties.
(d) Radioactive Materials Decommissioning. Sublessor has
further disclosed to Sublessee that Sublessor is decommissioning certain
laboratory space within the Premises (consisting of 6,420 RSF) with respect to
Sublessor's use of certain radioactive materials in such laboratory space.
Sublessor shall have the sole responsibility for obtaining all applicable
federal, state and local governmental approvals in connection with such
decommissioning and shall be fully liable for the costs of such decommissioning.
Sublessor shall provide to Sublessee (i) copies of any decommissioning plans
given to the County of San Mateo or any other applicable federal, state or local
governmental agency, (ii) a description of the scope of work of any contractor
or consultant retained by Sublessor in connection with the decommission, and
(iii) the results of any radioactive wipe samples obtained by Sublessor with
respect to the Premises. Sublessor shall diligently proceed to complete the
foregoing described decommissioning to the extent the same is not completed
prior to the Commencement Date. In the event Sublessor fails to complete the
decommissioning required by applicable law by January 1, 2004, Sublessee shall
have the right, but not the obligation, by delivering written notice to
Sublessor, to proceed to obtain the required decommissioning, and Sublessor
shall reimburse Sublessee for all direct out-of-pocket costs, fees and expenses
incurred by Sublessee in obtaining such decommissioning within thirty (30) days
of delivery of an invoice with reasonable supporting documentation from
Sublessee. In the event Sublessor fails to timely reimburse Sublessee, Sublessee
shall be entitled to offset any such amounts due Sublessee against Base Rent or
Additional Rent due under this Sublease. Sublessor and Sublessee shall fully
cooperate with one another in good faith to obtain the decommission described in
this Section 3(d). Upon receipt of the required decommissioning as described in
this Section 3(d), Sublessor shall occupy the portion of the Premises so
decommissioned and the RSF of the Premises shall increase accordingly.
(e) Alterations. Any alterations or improvements that
Sublessee desires to make to the Premises shall be made by Sublessee at its sole
cost and expense. Plans and specifications for Sublessee's alterations and
improvements, other than those attached as Exhibit D-1 hereto (which have
already been approved by Landlord and Sublessor), shall be subject to the prior
written approval of Landlord and Sublessor as provided in the Lease and herein;
provided, however, that Sublessor shall not unreasonably withhold its consent to
any
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such alterations and improvements. Sublessee shall, at Sublessee's sole cost
and expense, comply promptly with all applicable statutes, ordinances, rules,
regulations, orders, restrictions of record, and requirements in effect during
the Term or any part of the Term hereof regulating the use by Sublessee of the
Premises or the alterations or improvements constructed for or by Sublessee
therein. Upon termination of this Sublease, Sublessee shall be responsible for
the cost of removing any alterations or improvements which were installed for or
by Sublessee in the Premises, to the extent the same are required to be removed
pursuant to the terms of the Lease; provided, however, that Sublessee shall not
be required to remove any alterations that the Landlord has confirmed in its
written consent to this Sublease as described in Section 4 below will not be
required to be removed upon termination of the Lease. Sublessor acknowledges
that it has approved the Sublessee's plans for alterations attached hereto as
Exhibit D-1 and the general conditions for the construction of tenant
improvements attached hereto as Exhibit D-2.
(f) Notwithstanding anything to the contrary contained in
this Section 3, Sublessor hereby represents and warrants to Sublessee that to
Sublessor's knowledge:
(i) all Building systems and utilities serving
the Premises are in good working condition;
(ii) all of the FF&E is in good condition and
repair; and
(iii) the base Building core, shell and existing
interior improvements materially comply as of the date hereof with the
requirements of the American with Disabilities Act and applicable building
codes.
4. CONDITIONS.
(a) This Sublease is conditioned upon the delivery to
Sublessor of a fully executed original of this Sublease and the receipt of
Landlord's written consent to this Sublease not later than three (3) business
days following delivery to Landlord of a copy hereof executed by Sublessee and
Sublessor, which consent Landlord may give or withhold pursuant to Section 23 of
the Lease.
(b) In the event the condition expressed above in this
Section 4 is not timely satisfied, upon three (3) business days prior written
notice, Sublessor or Sublessee may terminate this Sublease by giving written
notice of termination to the other party at any time prior to the satisfaction
of such condition. In the event this Sublease is terminated due to the
nonsatisfaction of the foregoing condition, neither Sublessor nor Sublessee
shall have any further rights or obligations hereunder.
5. PROVISIONS CONSTITUTING SUBLEASE.
(a) Relationship Between Sublessee and Landlord. This
Sublease is subject to all of the terms and conditions of the Lease. Sublessee
hereby assumes and agrees to perform the
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obligations of Sublessor as "Tenant" under the Lease to the extent such terms
and conditions are applicable to the Premises then subleased pursuant to this
Sublease. Sublessee shall not commit or permit to be committed on the Premises
any act or omission which shall violate any term, covenant or condition of the
Lease.
(b) Relationship Between Sublessee and Sublessor. Except
as otherwise provided herein, all of the terms and conditions contained in the
Lease are incorporated herein as terms and conditions of this Sublease with each
reference therein to "Landlord," "Tenant," the "Lease" and the "Premises," being
deemed to refer to Sublessor, Sublessee, this Sublease, and the Premises,
respectively), except for the following provisions of the Lease, which are not
incorporated into this Sublease: Basic Lease Information (except Permitted Use
definition), the second paragraph of Section 2, Sections 3, 4(a), 4(d), 7, 8(b),
8(c), 8(d), 10, 11(b)-(d), 38, 39, 49, 50, 51, 52 and 53, and Exhibits A, B, C,
D, G, H, I, J. Notwithstanding anything to the contrary contained herein, with
respect to any specific obligation in the Lease required to be performed by
Landlord, to the extent Landlord has performed such obligation Sublessor shall
not be required to do so.
(c) Notices. All notices or demands of any kind required
or desired to be given by Sublessor or Sublessee to the other hereunder shall be
in writing and shall be deemed delivered upon receipt if sent by United States
mail, certified postage prepaid, return receipt requested, or by private
overnight courier, addressed to the Sublessor or Sublessee respectively at the
addresses set forth in Section 1, or at such other addresses as the parties may
specify by notice in accordance with this section. All rent and other payments
due under this Sublease shall be made by Sublessee to Sublessor at the same
address. Sublessor and Sublessee shall each deliver to the other a copy of every
notice received from Landlord affecting or relating to the Premises, or
affecting or relating to the rights and/or obligations hereunder or under the
Lease, within five (5) days following receipt thereof. Notwithstanding anything
to the contrary contained in this Sublease, the time limits specified in the
Lease for the giving of notice, making of demands, performing any act, condition
or covenant (including cure of any breach) or the exercise of any right, remedy
or option, are hereby decreased or increased for purposes of this Sublease, by
shortening or lengthening the same, as the case may be, in each instance by
three (3) days, when necessary to enable Sublessor to give notice, make demands,
perform any act, correct any failure, or otherwise to secure compliance and
perform under the Lease in a timely manner.
(d) Services. Notwithstanding Section 5(b) hereof and
except as otherwise specifically provided herein, Sublessor shall have no
obligation to provide any of the services to be provided by Landlord under the
Lease, or any other services, and Sublessor's sole obligation with respect
thereto shall be to use diligent and commercially reasonable efforts to obtain
Landlord's compliance with the Lease upon Sublessee's written request. Without
limiting the generality of the foregoing sentence, Sublessor shall have no
obligation to Sublessee to provide or maintain back-up generators for power,
security services or life safety systems. To the extent permitted by law and by
Landlord, Sublessee shall have the right to request all services directly from
Landlord at Sublessee's sole cost and expense. Sublessee shall promptly notify
Sublessor in writing of all such requests for services. Upon the request of
Sublessee, Sublessor shall provide building maintenance engineering services for
the Premises during the Term and the cost for such services incurred by
Sublessor shall be reimbursed by Sublessee as Additional Rent.
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(e) If Landlord shall fail to perform its obligations
with respect to the Premises in accordance with the terms of the Lease,
Sublessor, upon receipt of written notice from Sublessee, shall, at no expense
to Sublessor, use diligent, commercially reasonable efforts to attempt to
enforce all obligations of Landlord under the Lease, but Sublessor shall have no
obligation to institute any legal proceedings against Landlord. If, after
receipt of written request from Sublessee, Sublessor shall fail or refuse to
take action for the enforcement of Sublessor's rights against Landlord with
respect to the Premises or Landlord fails or refuses to perform its Lease
obligations despite Sublessor's attempt to enforce the Lease ("Action"),
Sublessee shall have the right to take such Action in its own name by commencing
a legal proceeding to enforce the terms of the Lease, and for that purpose and
only to such extent, all of the rights of Sublessor as "Tenant" with respect to
the Premises under the Lease hereby are conferred upon and assigned to Sublessee
on a non-exclusive basis, and Sublessee hereby is subrogated to such rights to
the extent that the same shall apply to the Premises. If any such Action against
Landlord in Sublessee's name shall be barred by reason of lack of privity,
nonassignability or otherwise, Sublessee, at its sole cost and expense, with the
commercially reasonable cooperation of Sublessor, may take such Action in
Sublessor's name, or if such Action would be barred if taken by Sublessee in
Sublessor's name, request that Sublessor institute such an Action; provided that
Sublessee shall indemnify, protect, defend by counsel reasonably satisfactory to
Sublessor and hold Sublessor harmless from and against any and all liability,
loss, claims, demands, suits, penalties or damage (including, without being
limited to, reasonable attorneys' fees and expenses) which Sublessor may incur
or suffer by reason of such Action, except for any such liability, loss, claims,
demands, suits, penalties or damage which Sublessor may incur or suffer by
reason of Sublessor's gross negligence or willful misconduct. Notwithstanding
anything to the contrary herein, (i) if Sublessor pursues any Action against
Landlord, Sublessee shall be barred from pursuing the same Action against
Landlord, and (ii) Sublessor shall have the right to reasonably approve (A)
counsel to be used by Sublessee in any Action and (B) any settlement of any
Action.
(f) Sublessor agrees that Sublessee shall have the right
to cure any default by Sublessor under the Lease within the period of time
specified in the Lease; it being understood and agreed that neither Sublessor
nor Sublessee shall have any additional time to cure any such default. For
example, if Landlord delivers a notice of default, and such default is required
to be cured within five (5) days following the receipt of such notice of
default, then Sublessor and/or Sublessee shall have the right to cure such
default within such 5-day period and not within 5 days following the expiration
of such 5-day period. If Sublessee cures such default, Sublessor agrees that
Sublessee shall be entitled to offset against rent due under this Sublease sums
paid to Landlord to cure the default under the Lease. Sublessor hereby
irrevocably authorizes and directs Sublessee upon receipt of any written notice
from Landlord stating that a default exists in the performance of Sublessor's
obligations under the Lease, to pay to Landlord rent due and to become due under
the Sublease. Sublessor agrees that Sublessee shall have the right to rely on
any such statement and request from Landlord, and that Sublessee shall pay such
rent to Landlord without obligation or right to inquire as to whether such
default exists and notwithstanding any notice from or claim from Sublessor to
the contrary, and Sublessor shall have no right or claim against Sublessee for
any such rent so paid by Sublessee. Nothing in this Section shall in any manner
impair or otherwise affect or constitute a waiver of Sublessor's right to
dispute or contest any default claimed by Landlord to have been committed by
Sublessor under the Lease and Sublessor hereby reserves its right to dispute or
contest any such claimed
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default through appropriate legal actions. Nothing in this Section shall relieve
Sublessor of its duty to perform all of the obligations of "Tenant" under the
Lease.
(g) Consents. In any circumstance where the Lease
requires that Landlord's approval or consent be obtained, Sublessee shall be
required to obtain the written approval or consent of Sublessor as well. Where
the Lease specifies that Landlord shall not unreasonably withhold its approval
or consent, Sublessor shall not unreasonably withhold its approval or consent as
well.
6. RENT.
(a) Base Rent. Upon execution of this Sublease, Sublessee
shall pay to Sublessor an amount equal to [*] (comprising the Base Rent for the
5,000 RSF second floor portion of the Premises and 18,780 RSF for the ground
floor Premises), which constitutes the parties' good faith estimate (based on an
approximation of the RSF of the ground floor Premises for which the
decommissioning is not required under Section 3(d)) of the monthly installment
of Base Rent for the first full month of the Term following the Rent
Commencement Date, and which shall be applied in payment of such first
installment. In the event that, based on the RSF of such Premises undergoing
decommissioning on the Rent Commencement Date, such first month of Base Rent is
less than such amount, the excess payment shall be credited against the next
monthly installment of Base Rent. Commencing on the Rent Commencement Date,
Sublessee shall pay Base Rent to Sublessor as rent for the Premises, in monthly
installments in advance, and thereafter on the first day of each calendar month
of the Term, without deduction, offset, prior notice or demand, in lawful money
of the United States. If the first day for which the monthly installment of Base
Rent is payable is not the first day of a calendar month, or if the last day of
the Term is not the last day of a calendar month, the monthly installment of
Base Rent shall be prorated for the fractional month(s). In the case of a
proration at the beginning of the Term, Sublessee shall pay the proration for
such partial month upon the due date for Base Rent for the second month of the
Term. Sublessee shall pay the proration for the last month of the Term when Base
Rent for such month is due.
(b) Additional Rent. Sublessee acknowledges that
Sublessor is obligated to pay to Landlord all amounts provided for in Section
4(b) of the Lease ("Additional Rent"). Sublessee agrees to pay to Sublessor as
Additional Rent hereunder its Pro Rata Share of all such Additional Rent charged
to Sublessor by Landlord under the Lease commencing on the Rent Commencement
Date subject to a maximum annual increase of [*] over the amount of actual
Additional Rent paid by Sublessee for the previous year. As of the date hereof,
Sublessor is paying Landlord on a monthly basis the sum of [*] per rentable
square foot as Additional Rent. Sublessor shall provide Sublessee with full and
complete copies of all Expense Statements provided to Sublessor by Landlord
under Section 4(c) of the Lease promptly following Sublessor's receipt of the
same from Landlord. In addition, Sublessee shall pay (i) its Pro Rata Share of
all other sums which Sublessor is obligated to pay under the Lease except those
sums (A) resulting from a default by Sublessor under the Lease unless caused in
whole or in part by
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Sublessee, and (B) that are not related in whole or in part to the portion of
the Premises then occupied by Sublessee, and (ii) any additional charges and
expenses imposed by Landlord pursuant to the terms of the Lease and related
specifically to Sublessee's use and occupancy of the Premises during the Term.
All the foregoing shall be considered "Additional Rent" and Sublessee shall pay
such Additional Rent in accordance with the time for payment set forth in the
Lease provided Sublessee has received notice that any such amounts are due. To
the extent permitted under the Lease, Sublessee may demand an audit of
Landlord's books and records in accordance with Section 4(e) of the Lease, at
Sublessee's sole cost and expense.
(c) Late Charge. The parties hereby expressly agree that
in the event Sublessee shall fail to make payment of any installment of Base
Rent or any other sums due hereunder within five (5) days of the date that such
amounts are due, the provisions of Paragraph 6 of the Lease shall apply.
7. SECURITY DEPOSIT.
(a) To secure the faithful performance by Sublessee of
all the covenants, conditions and agreements in this Sublease on the part of
Sublessee to be fulfilled, kept, observed and performed including, but not by
way of limitation, such covenants and agreements in this Sublease which become
applicable upon the termination of the same by re-entry or otherwise, Sublessee
shall deposit with Sublessor, upon execution of this Sublease, a security
deposit in the amount of [*] (the "Security Deposit"). The Security Deposit
shall be in the form of an irrevocable standby letter of credit, as described in
Section 7(b) below, subject to Sublessee's right to change the form of the
Security Deposit as provided in Section 7(c) below. Sublessee agrees that: (a)
the Security Deposit or any portion thereof may be applied to the curing of any
default that may then exist, without prejudice to any other remedy or remedies
which Sublessor may have on account thereof, and upon such application Sublessee
shall pay Sublessor on demand the amount so applied which shall be added to the
Security Deposit so the same may be restored to its original amount; (b) should
the Lease be assigned by Sublessor, the Security Deposit or any portion thereof
not previously applied shall be turned over to Sublessor's assignee, and upon
express assumption of Sublessor's obligations under this Sublease, Sublessee
shall release Sublessor from any and all liability with respect to the Security
Deposit and/or its application or return; (c) the sum deposited or the portion
thereof not previously applied, shall be returned to Sublessee without interest
following the expiration of the Term of this Sublease, except to the extent
reasonably required to cure any breach by Sublessee of any of its obligations
hereunder and provided that Sublessee has vacated the Premises and surrendered
possession thereof to Sublessor at the expiration of the Term; (d) in the event
that Sublessor terminates this Sublease or Sublessee's right to possession by
reason of an event of default under this Sublease by Sublessee, Sublessor may
apply the Security Deposit against damages suffered to the date of such
termination and/or may retain the Security Deposit to apply against such damages
as may be suffered or shall accrue thereafter by reason of Sublessee's default;
and (e) in the event any bankruptcy, insolvency, reorganization or other
creditor-debtor proceedings shall be instituted by or against Sublessee, or its
successors or assigns, the Security Deposit shall be deemed to be
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applied first to the payment of any Rent due Sublessor for all periods prior to
the institution of such proceedings, and the balance, if any, of the Security
Deposit may be retained or paid to Sublessor in partial liquidation of
Sublessor's damages.
(b) The letter of credit supplied by Sublessee as the
Security Deposit shall be an irrevocable, unconditional, standby letter of
credit in a form substantially similar to the form attached hereto as Exhibit C
and incorporated herein (such letter of credit, together with any renewal or
replacement letters of credit delivered or to be delivered by Sublessee under
this Section, shall be referred to herein collectively as the "Letter of
Credit"). The Letter of Credit shall be issued by a national money center bank
mutually acceptable to Sublessor and Sublessee (the "Issuer"). The final form of
the Letter of Credit and the form of any replacement Letter of Credit shall be
acceptable to Sublessor in its sole discretion. The Letter of Credit shall be
for an initial term of not less than twelve (12) months and shall be maintained
in force at all times from issuance through sixty (60) days following the
expiration or earlier termination of this Sublease. If Sublessee fails to
deliver to Sublessor either a replacement Letter of Credit or cash in the full
amount of the Security Deposit required hereunder at least sixty (60) days prior
to the expiration date of an outstanding Letter of Credit, such failure shall be
a default under this Sublease (without the requirement of notice) entitling
Sublessor, in addition to its other remedies, to draw down all or part of the
current Letter of Credit. Sublessor shall have the right, upon a transfer or
assignment of its rights as landlord under this Sublease, to require Sublessee
to deliver a replacement Letter of Credit designating Sublessor's successor as
the beneficiary, at Sublessee's sole cost and expense. No draw under the Letter
of Credit shall be deemed a waiver of, or be deemed to have cured, any default
by Sublessee under any provision of this Sublease except to the extent directly
applied to cure such default(s).
(c) If Sublessee meets each of the following criteria,
Sublessee may elect to reduce the amount of the Security Deposit by [*] on the
fourth anniversary of the Commencement Date and [*] on each successive
anniversary thereafter so long as such criteria remain satisfied:
(i) There shall be no default by Sublessee under
this Sublease;
(ii) Sublessee shall provide current audited
annual financial statements indicating that it possesses in cash or
cash equivalents an amount equal to the greater of (A) [*] or (B) [*];
and
(iii) The amount of Security Deposit after any
reduction otherwise permitted by this Section 7(c) shall not be less
than [*]
In the event that the criteria set forth in subclauses (i) and (ii) above are
satisfied on such fourth anniversary of the Commencement Date, Sublessee shall
have the right to replace the Letter of Credit with a Security Deposit in the
form of cash or a certificate of deposit issued by an Issuer mutually acceptable
to Sublessee and Sublessor and pledged to Sublessor in an form acceptable to
Sublessor in its sole discretion.
------------------
* Confidential treatment requested.
Redacted
11
(d) At the option of Sublessor, on the fifth anniversary
of the Commencement Date and each anniversary thereafter, should Sublessee fail
to satisfy any of the criteria contained in Section 7(c), Sublessor will require
the Security Deposit to be increased immediately and annually on each
anniversary thereof that any of the foregoing criteria is not satisfied by [*];
provided, however, that the amount of the Security Deposit shall in no event be
required to exceed [*].
8. USE OF PREMISES. Sublessee shall use the Premises for the Permitted
Uses and for no other purpose without the prior written consent of Sublessor
and, if required by the Lease, Landlord. Notwithstanding any other provision
hereof, and subject to any limitations in the Lease, Sublessee shall have access
to the Premises on a seven day a week, twenty four hour a day basis.
9. TERM.
(a) Term. The term of this Sublease shall be for a period
commencing on the Commencement Date and ending on the Expiration Date, unless
terminated sooner by termination of the Lease for any reason or otherwise
pursuant to this Sublease (the "Term").
(b) Delay in Delivery. In the event Sublessor is unable
to deliver possession of the Premises on the Commencement Date, Sublessor shall
not be subject to any liability for any loss or damage to Sublessee, nor shall
such failure affect the validity of this Sublease or Sublessee's obligations
hereunder or extend the Term hereof. Notwithstanding the foregoing sentence, if
Sublessor does not deliver the Premises within five (5) days thereafter,
Sublessee shall have the right to terminate this Sublease by written notice to
Sublessor given within five (5) days thereafter.
(c) Early Access. Following the execution of this
Sublease and the receipt of Landlord's consent to this Sublease, but prior to
the Commencement Date, Sublessor shall provide to Sublessee the right to enter
the Ground Floor Premises and Second Floor Premises for the purpose of
inspecting the same. Such early access shall include access to the information
technology and telephone architecture for the purposes of planning Sublessee's
communications system, provided that Sublessee shall not interfere with the
operation of Sublessor's business on the second floor of the Building. Sublessor
shall provide Sublessee technical assistance and information reasonably
requested by Sublessee related to the existing communications systems in the
Building. All terms and conditions of the Sublease shall apply to such early
access, except the payment of Base Rent and Additional Rent.
(d) No Voluntary Termination, Modification or Waiver by
Sublessor. So long as Sublessee is not in default under this Sublease and
subject to Sublessor's right to terminate the Lease in the event of damage or
destruction or condemnation of the Premises in accordance with the Lease,
Sublessor shall not itself voluntarily terminate the Lease with respect to the
Premises or commit any affirmative or intentional acts that would entitle
Landlord to terminate the Lease, or amend or waive any provisions of the Lease
that would adversely affect Sublessee, without
------------------
* Confidential treatment requested.
Redacted
12
first obtaining Sublessee's prior written consent, which consent may be withheld
in Sublessee's reasonable discretion; provided, however, that Sublessor shall
have no liability to Sublessee under this Section 9(d) for any termination of
the Lease resulting from the acts of any third parties. The provisions of this
Section 9(d) shall not apply in the event that Landlord enters into a direct
lease of the Premises with Sublessee that is subject to the terms of the
Sublease (including, without limitation, the Base Rent provisions) as
contemplated under Landlord's written consent described in Section 4 above.
10. ASSIGNMENT AND SUBLETTING.
(a) Approval Required. Sublessee's right to assign this
Sublease or sublease the Premises shall be subject to all of the terms and
conditions of the Lease, except that Sublessee shall also obtain Sublessor's
prior written consent, which consent shall not be unreasonably withheld,
conditioned or delayed. Notwithstanding the preceding sentence, Sublessee shall
not be required to obtain Sublessor's prior written consent in respect of a
Permitted Transfer to an Affiliate of Sublessee (as such terms are defined in
Section 23(b) of the Lease).
(b) Bonus Rent. In the event that Sublessor has consented
to an assignment or subletting by Sublessee for which Sublessor's consent is
required, Sublessor shall be entitled to receive: (i) in the case of a
subletting, fifty percent (50%) of all rent (however denominated and paid)
payable by the sub-sublessee to Sublessee in excess of that payable by Sublessee
pursuant to the provisions of this Sublease, and (ii) in the case of an
assignment, fifty percent (50%) of all rent (however denominated and paid)
payable by the assignee to Sublessee in excess of that payable by Sublessee
pursuant to the provisions of this Sublease. For the purposes of this Section
10(b), the term "rent" shall mean all consideration paid or given, directly or
indirectly, for the use of the Premises or any portion thereof, and the term
"consideration" shall mean and include money, services, property or any other
thing of value such as payment of costs, cancellation of indebtedness,
discounts, rebates and the like paid or payable to Sublessee for the assignment
or sublease and for all property in the Premises included in such assignment or
sublease, that are not a part of Sublessee's Property. The term "Sublessee's
Property" shall mean all property owned by Sublessee other than its interest in
this Sublease and the FF&E, including, but not limited to, all of Sublessee's
inventory, accounts, trade fixtures, equipment, furniture, other personal
property, goodwill and any other intangible personal property associated with
Sublessee's business. In computing the amount payable to Sublessor, Sublessee
may deduct from the rent and consideration all reasonable and customary expenses
directly incurred by Sublessee attributable to the assignment or sublease,
including, but not limited to, brokerage fees, legal fees and any tenant
improvements made for the benefit of any subtenant. "Sublet" and "sublease"
shall include a sublease as to which Sublessee is sublessor and any sub-sublease
or other sub-subtenancy, irrespective of the number of tenancies and tenancy
levels between the ultimate occupant and Sublessor, as to which Sublessee
receives any consideration, as defined in this subsection. Any rent or other
consideration which is to be passed through to Sublessor by Sublessee pursuant
to this subsection shall be paid to Sublessor within thirty (30) days after
receipt by Sublessee and shall be paid in cash, irrespective of the form in
which received by Sublessee from any sub-subtenant or assignee. In the event
that any rent or other consideration received by Sublessee from a sub-subtenant
or assignee is in a form other than cash, Sublessee shall pay to Sublessor in
cash the fair value of such consideration.
Redacted
13
11. DAMAGE AND DESTRUCTION. In the event of damage or destruction to
the Premises or the Building, each party agrees to forward to the other, within
twenty-four (24) hours of receipt, a copy of each notice received from, or given
to, Landlord in connection therewith. If the Premises or the Building are
damaged or destroyed by fire or other casualty and Landlord undertakes to repair
the same pursuant to the Lease, this Sublease shall remain in full force and
effect, except that if the rent payable under the Lease is reduced as a result
of such damage or destruction, Sublessee shall be entitled to a proportionate
reduction of Base Rent and Additional Rent payable hereunder while such repairs
are being made. If the Premises or the Building are damaged to an extent that
Landlord has a right to terminate the Lease, and Landlord in fact terminates the
Lease, this Sublease shall terminate. Landlord and Sublessor shall not be
required to repair any injury or damage by fire or other cause to the property
of Sublessee, or to make any repairs or replacements of any paneling,
decoration, railings, floor coverings or any additions or improvements installed
on the Premises by Sublessee. Sublessee shall be entitled to terminate this
Sublease to the same extent Sublessor is entitled to terminate the Lease
pursuant to Section 21 of the Lease.
12. EMINENT DOMAIN. If, due to any taking or appropriation of all or a
part of the Premises or the Building, Landlord exercises its right to terminate
the Lease, this Sublease shall terminate. If part of the Premises shall be so
taken or appropriated and this Sublease shall not be terminated as provided
herein, then the rent thereafter to be paid hereunder shall be equitably
reduced, as provided in the Lease. Sublessee shall be entitled to terminate this
Sublease to the same extent Sublessor is entitled to terminate the Lease
pursuant to Section 22 of the Lease.
13. HAZARDOUS MATERIALS. Sublessee shall strictly comply with all
covenants regarding Hazardous Materials contained in the Lease, including
without limitation, the following:
(a) Sublessee agrees that during its use and occupancy of the
Premises it will (1) not (A) permit Hazardous Materials to be present on or
about the Premises except in a manner and quantity necessary for ordinary
performance of Sublessee's business or (B) release, discharge or dispose of any
Hazardous Materials on, in, at, under, or emanating from, the Premises, the
Building or the Project; (2) comply with all Environmental Laws relating to
Sublessee's use of Hazardous Materials in, on or about the Premises and not
engage or permit its agents to engage in any activity in, on or about the
Premises in violation of any Environmental Laws; and (3) immediately notify
Sublessor of (A) any inquiry, test, investigation or enforcement proceeding by
any governmental agency or authority against Sublessee, Sublessor, Landlord or
the Premises, Building or Project relating to any Hazardous Materials or under
any Environmental Laws or (B) the occurrence of any event or existence of any
condition that would cause a breach of any of the covenants set forth in this
Section 13.
(b) If Sublessee's use of Hazardous Materials on or about the
Premises results in a release, discharge or disposal of Hazardous Materials on,
in, at, under or emanating from, the Premises, the Building or the Project,
Sublessee agrees to investigate, clean up, remove or remediate such Hazardous
Materials in full compliance with (1) the requirements of (A) all Environmental
Laws and (B) any governmental agency or authority responsible for the
enforcement of Environmental Laws; and (2) any additional requirements of
Landlord that are reasonably necessary to protect the value of the Premises, the
Building or the Project.
Redacted
14
(c) Sublessee shall surrender the Premises to Landlord upon the
expiration or earlier termination of this Lease free of debris, waste or
Hazardous Materials placed on, about or near the Premises by Sublessee or
Sublessee's agents, and in a condition that complies with (i) all Environmental
Laws relating to Hazardous Materials placed on, about or near the Premises by
Sublessee or Sublessee's agents and (ii) any additional requirements of Landlord
that are reasonably necessary to protect the value of the Premises, the Building
or the Project, including, without limitation, the obtaining of any closure
permits or other governmental permits or approvals related to Sublessee's use of
Hazardous Materials in or about the Premises. Sublessee's obligations and
liabilities pursuant to the provisions of this Section 13 shall survive the
expiration or earlier termination of this Sublease.
Sublessor hereby represents and warrants that to its knowledge,
Sublessor has not discharged any Hazardous Materials in or about the Premises
that have not been remediated in accordance with Environmental Laws.
14. ENTRY BY SUBLESSOR. Sublessor reserves and shall at any and all
times (within ordinary business hours, except in the case of emergency) have the
right to enter the Premises to inspect the same, to post notices of
nonresponsibility, or to show the Premises to prospective subtenants during the
final year of the Term or following a default and the expiration of any
applicable cure periods, or in the event of Sublessee's default with respect
thereto, to perform any obligation of Sublessor as Tenant under the Lease
relating to the use, maintenance or repair of the Premises. In the event that
Sublessee shall not provide Sublessor with a key to the Premises, Sublessee
waives any claims for damages resulting directly from Sublessor's use of force
to enter the Premises in the event of an emergency. Sublessee waives any claim
for damages for any injury or inconvenience to or interference with Sublessee's
business, any loss of occupancy or quiet enjoyment of the Premises, and any
other loss occasioned by such entry, except to the extent caused by the
negligence of Sublessor, its agents or employees, provided that the entrance to
the Premises shall not be blocked thereby and further provided that the business
of Sublessee shall not be interfered with unreasonably. Except in the case of
emergency, Sublessor shall give Sublessee reasonable prior notice of not less
than forty-eight (48) hours of any intended entry of the Premises by Sublessor,
and shall obtain the permission of an officer of Sublessee (which permission
shall not be unreasonably withheld). Except in the case of an emergency,
Sublessee shall be entitled to accompany Sublessor during Sublessor's entry onto
the Premises. Any entry to the Premises by Sublessor pursuant to this Section 14
shall not under any circumstances be construed or deemed to be a forcible or
unlawful entry into or a detainer of the Premises or an eviction of Sublessee
from the Premises or any portion thereof.
15. INDEMNIFICATION.
(a) Sublessee shall hold Sublessor, and its subsidiaries,
affiliates, directors, officers, agents, contractors, servants, employees and
licensees (hereinafter "indemnitees") harmless from and shall indemnify and
defend indemnitees against any and all damages, claims or liability arising from
any breach or default in the performance of any obligation of Sublessee
hereunder.
(b) Sublessor shall hold Sublessee, and its subsidiaries,
affiliates, directors, officers, agents, contractors, servants, employees and
licensees (hereinafter "indemnitees") harmless from and shall indemnify and
defend indemnitees against any and all damages, claims or liability
Redacted
15
(i) arising from any breach or default in the performance of any obligation of
Sublessor hereunder, and (ii) for any injury or damage to any person or property
occurring in, on or about the Building or any part thereof, exclusive of the
Premises, when such injury or damage shall be caused by the act, neglect,
default, or omission of any duty with respect to the same by Sublessor, its
agents, employees or invitees, except to the extent such liability arises from
the gross negligence or willful misconduct of indemnitees; and from and against
all costs, counsel fees, expenses and liabilities incurred in or in connection
with any such claim or any action or proceeding brought thereon and (iii)
arising from the presence of any Hazardous Materials in or about the Premises
discharged or released by Sublessor (including, without limitation, any
radiation described in Section 3(d)).
16. BROKERS. Sublessor and Sublessee each represents to the other that
it has dealt with no brokers in connection with this Sublease other than
Sublessee's broker, CRESA Partners and Sublessor's broker, the Staubach Company.
Each of Sublessor and Sublessee shall indemnify, defend, and hold the other
harmless from and against any costs, expenses, liability, loss or damage arising
out of or relating to the falsity of the foregoing representation. Sublessor
agrees to pay all brokerage fees and commissions payable to CRESA Partners with
respect to this Sublease in accordance with the provisions of a separate
commission contract.
17. PARKING. Sublessee shall be entitled to use the proportion of the
number of non-exclusive and undesignated parking spaces allocated to the
Building under the Lease that corresponds to the percentage of the Building's
total rentable square footage that Sublessee occupies from time to time, at no
cost to Sublessee. Upon Sublessee's occupancy of the entire Premises, Sublessee
shall be entitled to use on a non-exclusive and undesignated basis a total of
one hundred fifty-one (151) parking spaces a the Project.
18. SIGNAGE. Subject to the terms and conditions of the Lease, the
prior approval of Sublessor and Landlord, and applicable law, Sublessee shall
have the right, at Sublessee's sole cost and expense, to erect monument signage
and Building signage in the approximate locations in which Sublessor's signage
is currently installed. Sublessor shall remove its existing signage, at
Sublessor's sole cost and expense, no later than nine (9) months after the
Commencement Date.
19. MISCELLANEOUS.
(a) Entire Agreement. This Sublease, together with its Exhibits,
constitutes the entire agreement of Sublessor and Sublessee with respect to the
matters described herein, and shall supersede all prior correspondence,
agreements and understandings concerning such matters, whether oral or written.
No addition to, or amendment or modification of, any term or provision of this
Sublease shall be effective unless set forth in writing and signed by Sublessor
and Sublessee.
(b) Authority. Each individual executing this Sublease on behalf
of either party represents and warrants that he or she is duly authorized to
execute and deliver this Sublease on behalf of such party.
Redacted
16
(c) Attorneys' Fees. If either party commences an action
against the other party arising out of or in connection with this Sublease, or
for interpretation of any of its provisions, the prevailing party shall be
entitled to recover its costs and expenses, including reasonable attorneys' fees
and court costs, from the other party. In addition, if either Sublessor or
Sublessee becomes a party to any action concerning this Sublease or the Premises
solely by reason of the neglect or omission of any duty by the other party, the
party subjected to such action without fault shall be entitled to reimbursement
for any and all reasonable attorneys' fees and costs.
(d) Lease. Sublessor hereby represents and warrants to
Sublessee that: (i) the Lease is in full force and effect as of the date hereof;
(ii) a true and correct copy of the Lease is attached hereto as Exhibit A; (iii)
to Sublessor's knowledge, except with respect to the Slab Water Intrusion,
Landlord is not in default under the Lease nor have any acts or events occurred
which, with the giving of notice or passage of time or both, could become
defaults of Landlord under the Lease; and (iv) Sublessor has received no notice
that there exists any defaults on the part of Sublessor under the Lease, or an
event or condition which, with the giving of notice or passage of time or both,
would become a default.
(e) FF&E Lease. Any default by Sublessee under the FF&E Lease
(following the expiration of applicable cure periods) shall constitute a default
under this Sublease.
(f) Captions. All captions and headings in this Sublease are
for the purposes of reference and convenience and shall not limit or expand the
provisions of this Sublease.
(g) Counterparts. This Sublease may be executed in one or more
counterparts, each of which shall constitute an original, and all of which shall
constitute a single agreement.
[REMAINDER OF PAGE INTENTIONALLY BLANK]
Redacted
17
IN WITNESS WHEREOF, Sublessor and Sublessee have executed this
Sublease on the dates set out below.
SUBLESSOR: SUBLESSEE:
XXXXXXX PHARMACEUTICAL, INC., GRYPHON THERAPEUTICS, INC.,
a Delaware corporation a California corporation
By: /s/ Xxxx Xxx By: /s/ X. Xxxxxx
______________________________ ______________________________
Title: Treasurer Title: President and CEO
Date: ____________________________ Date: 4/4/03
We consent to the foregoing.
LANDLORD:
Redacted
18
EXHIBIT A
LEASE
[Exhibit 10.17 to Annual Report on Form 10-K
for Xxxxxxx Pharmaceutical, Inc. filed March 27, 1998]
Redacted
EXHIBIT B-1
INITIAL SECOND FLOOR PREMISES
[Drawing of Second Floor Premises]
Redacted
EXHIBIT B-2
GROUND FLOOR PREMISES
[Drawing of Ground Floor Premises]
Redacted
EXHIBIT B-3
ADDITIONAL SECOND FLOOR PREMISES
[Drawing of Additional Second Floor Premises]
Redacted
EXHIBIT C
LETTER OF CREDIT FORM
Letter of Credit No. Date: __________________, 200_
Issuer:
Date of Issue: ________________, 200__
Beneficiary: Applicant:
Xxxxxxx Pharmaceutical, Inc., Gryphon Therapeutics, Inc.
a Delaware corporation a _____________ corporation
_____________________________ ______________________________________
_____________________________ ______________________________________
_____________________________ ______________________________________
Re: Irrevocable Standby Letter of Credit No. __________
$______________
Ladies and Gentlemen:
We hereby establish this clean, unconditional irrevocable standby
Letter of Credit No. _________ in your favor, for account of Gryphon
Therapeutics, Inc., effective immediately in the amount of USD
_____________________________________Dollars ($_______________ U.S. Dollars)
available by your draft(s) at sight when accompanied by a statement as follows
purportedly signed by an officer of Beneficiary:
"The undersigned, being an authorized representative of Xxxxxxx
Pharmaceutical, Inc., hereby certifies that Gryphon Therapeutics, Inc. has
defaulted under that certain Sublease Agreement dated ______________________ __,
200__, between Xxxxxxx Pharmaceutical, Inc. and Gryphon Therapeutics, Inc., and
that Xxxxxxx Pharmaceutical, Inc. is entitled to draw upon this Letter of Credit
No. ______________ pursuant to the Sublease."
This Letter of Credit expires at our close of business on
___________________ ___, 200__, which is one year after the date hereof, subject
to automatic extension as provided below.
Partial drawings are permitted.
This Letter of Credit is transferable successively in its entirety only
up to the then available amount in favor of any nominated transferee that is the
successor in interest to Beneficiary or is the new owner of certain stated
property ("Transferee"), assuming such transfer
Redacted
to such Transferee would be in compliance with then applicable laws and
regulations, including but not limited to the regulations of the U.S. Department
of Treasury and U.S. Department of Commerce. At the time of transfer, the
original Letter of Credit and original Amendment(s), if any, must be surrendered
to us together with our Letter of Transfer documentation (in the form of Annex A
attached hereto).
It is a condition of this Letter of Credit that it shall be deemed
automatically extended without amendment for one year periods from the
expiration date hereof, or any future expiration date, but not beyond [sixty
(60) days after expiration of the Term of the Sublease], unless at least 45
(forty-five) days prior to any expiration date we shall notify you by courier
service or certified mail (return receipt requested) that we elect not to
consider this Letter of Credit renewed for any such additional period.
All drafts drawn under this credit must be marked "Drawn under
_________________ Letter of Credit No.__________________________."
This credit is subject to the Uniform Customs and Practice for
Documentary Credits (1993 Revision), International Chamber of Commerce,
Publication No. 500.
This original Letter of Credit and all amendments thereto must be
submitted to us together with any drawings hereunder for our endorsement of any
payments effected by use and/or for cancellation. Our obligation under this
Letter of Credit is unconditional and is not dependent on our ability to perfect
a lien, security interest or any other reimbursement.
We engage with you that each draft drawn under and in compliance with
the terms of this Letter of Credit will be duly and unconditionally honored on
delivery of the documents as specified if presented at this office on or before
_____________________, 200__ or any automatically extended date.
Yours very truly,
Authorized Signature
Redacted
2
ANNEX A
TO LETTER OF CREDIT
Bank and Bank Address
Attention: Manager, Letter of Credit Department Date: _____
Re: Bank Irrevocable Letter of Credit No. __________
Gentlemen:
For value received, the undersigned beneficiary hereby irrevocably
transfers to the following (the "Transferee")
(Name of Transferee)
(Address of Transferee)
all rights of the undersigned beneficiary to draw under the above Letter of
Credit in its entirety.
By this transfer, all rights of the undersigned beneficiary in the
Letter of Credit are transferred to the Transferee. The Transferee shall have
the sole rights as beneficiary thereof, including sole rights relating to any
extensions of the Expiration Date thereof, or other amendments, and whether such
amendments now exist or are made after the date hereof. All amendments of the
Letter of Credit are to be advised directly to the Transferee without necessity
of a consent of or notice to the undersigned beneficiary.
The original of such Letter of Credit is returned herewith, and in
accordance therewith you are to promptly endorse the transfer on the reverse
thereof, and forward it directly to the Transferee with your customary notice of
transfer.
Very Truly Yours,
By:
Authorized Officer
Redacted
3
EXHIBIT D-1
PLANS FOR ALTERATIONS
[Drawings for Plans for Alterations]
Redacted
EXHIBIT D-2
TENANT IMPROVEMENT CONDITIONS
Subject to the Lease, Sublessee may employ the following methods for
the construction of their tenant improvements:
a. Sublessee's tenant improvements will be designed and
constructed in accordance with the applicable terms of the
Lease. Sublessee will directly contract with the general
contractor, and Sublessee will engage its own architectural
firm for this project, both subject to the reasonable approval
of the Sublessor and Landlord.
b. Sublessor will not require Sublessee's use of any specific
subcontractors.
c. Sublessor will not require performance or payment bonds.
d. Sublessor will not charge a construction management fee,
supervision charge or plan review fees for its involvement in
any construction processes. Sublessor, however, will retain
the right to approve the construction plans prior to
installment. Such approvals shall not be unreasonably
withheld, and will be deemed to have automatically been
granted if no objection has been raised in writing by the
Sublessor within thirty (30) days of submission by the
Sublessee of plans to the Sublessor.
Redacted
SCHEDULE 1
- Existing HVAC, plumbing, electrical and security systems.
- Existing house vacuum, and RO/DI systems
- Existing walls, doors and built-in cabinetry
- Existing laboratory casework and fume hoods
- Existing cold/warm rooms
- Existing glass wash and autoclave equipment/facilities
- Existing furniture and office cubicle systems
- Existing data/telephone cabling
- Existing other utility systems and related infrastructure in the
Premises
Redacted
