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EXHIBIT 10.1
SUBLEASE AGREEMENT
1. PARTIES
This Sublease Agreement ("Sublease") dated July 31, 1996, is made between
Sybase, Inc., a Delaware corporation ("Sublandlord"), and NeXstar
Pharmaceuticals, Inc. a Delaware corporation ("Subtenant"), and supercedes and
restates in its entirety the Sublease Agreement between the parties dated as of
June 8, 1996.
2. MASTER LEASE
Sublandlord is the Tenant under a written lease dated February 16, 1993, as
amended by the (I) Amendment dated February 16, 1993, and (ii) Addendum to
Office Lease dated February 22, 1993 (the "Master Lease") wherein TCW Realty
Holding Company leased to Sublandlord the real property located in the City and
County of Boulder, State of Colorado, described as an Office consisting of
approximately 32,293 square feet of rentable area (the "Premises"). The term
"Landlord" as used in this Sublease and the Master Lease, shall mean S&G
Partnership, a Colorado General Partnership, who assumed all of TCW Holding
Company's obligations as Landlord under the Master Lease as of April 5, 1995,
as evidenced by the estoppel certificate attached hereto as Exhibit B
("Estoppel Certificate"). The Master Lease is attached to this Sublease as
Exhibit A and is incorporated herein by this reference. Except as otherwise
defined herein, terms within initial capital letters shall have the same
meanings set forth in the Master Lease.
3. PREMISES
Sublandlord hereby subleases the Premises to Subtenant, and Subtenant hereby
takes and accepts the Premises, on and subject to the terms and conditions set
forth in this Sublease.
4. WARRANTY BY SUBLANDLORD
4.1 Sublandlord warrants and represents to Subtenant that the Master Lease
has not been amended or modified and that Sublandlord is not now and as of the
commencement of the Sublease Term (as defined below) will not be, in default or
breach of any of the provisions of the Master Lease, and that Sublandlord has
no knowledge of any claim by Landlord that Sublandlord is in default or breach
of any of the provisions of the Master Lease.
4.2 Sublandlord further warrants and represents that: (i) Exhibit A to
this Sublease is a true, correct and complete copy of the Master Lease; (ii)
Exhibit B to this Sublease is a true, correct and complete copy of the
Estoppel Certificate; (iii) there are no other or additional documents forming
a part of the Master Lease, or constituting an amendment thereto; and (iv) the
Master Lease is in full force and effect.
5. TERM
5.1 The term of this Sublease ("Sublease Term") shall commence on
September 15, 1996 ("Commencement Date") and, unless sooner terminated as
provided herein, shall end on July 5, 2003 (the "Termination Date"). If
Sublandlord is unable to deliver possession of the Premises by the Commencement
Date as a result of causes beyond its reasonable control, Sublandlord shall not
be liable for any damages caused for failing to deliver possession, and this
Sublease shall not be void or voidable. Subtenant shall not be liable for Rent
until Sublandlord delivers possession of the Premises to Subtenant, but the
Sublease Term shall not be extended by the delay. The Sublease Term shall be
deemed to commence as of the Commencement Date irrespective of the date
Subtenant actually takes possession of the Premises. In the event Subtenant
takes
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possession of the Premises prior to the Commencement Date (with Sublandlord's
and Landlord's consent), Subtenant shall observe and perform all covenants and
obligations imposed on it by this Sublease.
5.2 Subtenant agrees to accept the Premises in their existing "AS IS"
condition, broom-clean and in as good condition as when Sublandlord took
possession, including, without limitation, the repair of any damage to the
Premises caused by the removal of any of Sublandlord's personal property or
trade fixtures from the Premises, except for reasonable wear and tear and loss
by fire or other casualty not caused by Sublandlord or its agents. Sublandlord
shall have no obligation to alter, improve or otherwise modify the Premises.
5.3 Upon the expiration or termination of the Sublease Term, Subtenant
shall immediately surrender the Premises together with all leasehold
improvements thereon, to Sublandlord in good order, repair and condition,
reasonable wear and tear expected. Without limiting the foregoing, Subtenant
shall also comply with the terms of Section 34 of the Master Lease with respect
to surrender of possession, except that Subtenant will not be required to make
any repairs which Sublandlord is not required to make under the Master Lease by
Landlord. Subtenant shall pay Sublandlord on demand the cost of repairing any
damage to the Premises.
6. RENT
6.1 Subtenant shall pay to Sublandlord without deduction, setoff, notice
or demand at the address for notices to Sublandlord specified in Section 13 of
this Sublease, or at such other place as Sublandlord shall designate from time
to time by notice to Subtenant, the Base Rent, in advance on the first day of
each month of the Sublease Term. For purposes of this Sublease, annual "Base
Rent" shall be Three Hundred Sixty-Four Thousand Nine Hundred Ten and 90/100
($364,910.90) for the duration of the Sublease Term, and shall be paid to
Sublandlord in equal monthly installments of Thirty Thousand Four Hundred Nine
and 24/100 Dollars ($30,409.24). If the Sublease Term begins or ends on a day
other than the first or last day of a month, the Base Rent for such partial
month shall be prorated on a per diem basis.
6.2 Except for the amounts specified in Section 10.2(b), all charges,
costs and sums required to be paid by Subtenant to Sublandlord under this
Sublease in addition to monthly Base Rent shall be deemed "Additional Rent,"
and monthly Base Rent and Additional Rent shall hereinafter collectively be
referred to as "Rent." Subtenant's covenant to pay Rent shall be independent
of every other covenant in this Lease. Rent not paid within the three (3) day
grace period following each relevant due date shall bear (I) a late charge
equal to five percent (5%) of the outstanding amount, plus (ii) interest at a
per annum rate equal to the lesser of (a) two percent (2%) above the announced
"prime" interest rate published in the Wall Street Journal as of the date of
such default, or (b) the maximum rate of interest which may be collected under
any applicable usury law.
6.3 The Master Lease requires Sublandlord to pay to Landlord amounts
representing Tenant's Proportionate Share Operating Costs, which share is One
Hundred Percent (100%). During the Sublease Term, Subtenant shall pay to
Landlord (or its designated management agent), as agent for Sublandlord, the
amounts Sublandlord is required to pay Landlord under the Master Lease as
Tenant's Proportionate Share Operating Costs. Subtenant shall pay such amounts
at the same time and in the same manner as contemplated by the Master Lease.
During the Sublease Term, Subtenant shall, at the same time it makes payment to
Landlord pursuant to this Section 6.3, furnish Sublandlord with copies of all
checks and documentation supporting the payment or calculation of actual or
estimated Operating Costs.
6.4 If Subtenant without the consent of Sublandlord (and the consent of
Landlord, where required by the Master Lease) retains possession of the
Premises, or any part thereof, after the expiration or termination of the
Sublease Term, Subtenant shall pay to Sublandlord all rent
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payable by Sublandlord to Landlord under the Master Lease for each month or
partial month (without proration for any partial month) that Subtenant remains
in possession. In addition, Subtenant shall protect, defend, indemnify and
hold Sublandlord harmless from and against all damages, loss, cost, liability
or expense threatened or sustained by Sublandlord by reason of Subtenant's
continuance in possession.
7. SECURITY DEPOSIT
Subtenant shall deposit with Sublandlord upon execution of this Sublease the
sum of Twenty-One Thousand Five Hundred Twenty-Eight and No/100 Dollars
($21,528.00) (the "Security Deposit") as security for Subtenant's faithful
performance of Subtenant's obligations hereunder. If Subtenant fails to pay
Rent when due under this Sublease, or fails to perform any of its other
obligations hereunder, Sublandlord may use or apply all or any portion of the
Security Deposit for the performance of all of Subtenant's obligations under
this Sublease, including the payment of any unpaid Rent, and for the payment of
any other amount for which Sublandlord may become obligated by reason of
Subtenant's default or breach hereunder. If Sublandlord so uses any portion of
the Security Deposit, Subtenant shall, within ten (10) days after written
demand by Sublandlord, restore the Security Deposit to the full amount
deposited, and Subtenant's failure to do so shall constitute a default under
this Sublease. Sublandlord shall not be required to keep the Security Deposit
separate from its general accounts and shall have no obligation or liability
for payment of interest on the Security Deposit. In the event Sublandlord
assigns its interest in the Sublease, Sublandlord shall deliver to its assignee
so much of the Security Deposit as is then held by Sublandlord. Within thirty
(30) days after the Sublease Term has expired, or Subtenant has vacated the
Premises, whichever shall last occur, and provided Subtenant is not then in
default of any of its obligations hereunder, the Security Deposit, or so much
thereof as had not theretofore been applied by Sublandlord, or is to be applied
to repair any damage to the Premises, shall be returned to Subtenant or to the
last assignee, if any, of Subtenant's interest hereunder.
8. USE OF PREMISES
The Premises shall be used and occupied only for general office and light
industrial use, and for no other use or purpose.
9. ASSIGNMENT AND SUBLETTING
Subtenant shall not assign this Sublease or further sublet all or any part of
the Premises without the prior written consent of Sublandlord which consent
shall not be unreasonably withheld, and the consent of Landlord, if such is
required under the terms of the Master Lease. Any such assignment of
subleasing shall be subject to compliance with the terms and conditions of the
Master Lease, including, without limitation, exercise of Landlord's right, if
any, to terminate the Master Lease and recapture all or a portion of the
Premises.
10. APPLICABLE PROVISIONS OF MASTER LEASE
10.1 Subject to this Section 10.1 and Sections 10.2 and 10.3 below, all
terms and conditions of the Master Lease (except for Sections 1.3, 1.4, 1.5,
1.6, 1.7, 1.10, 1.11, 5.2, 6, 7(a), the last sentence of Section 7(c), 8, 17.1,
44, 45, Exhibit B, Exhibit C, and Exhibit E) are incorporated into and made a
part of this Sublease as if Sublandlord were the Landlord thereunder, Subtenant
were the Tenant thereunder, and this Sublease were the Master Lease. In case
of conflict between the incorporated provisions of the Master Lease and the
remaining provisions of this Sublease, the latter shall control. Subtenant
assumes and agrees to perform the Tenant's obligations under the Master Lease
during the Sublease Term, except that the obligation to pay rent to Landlord
under the Master Lease shall not be an obligation of Subtenant, and Subtenant
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shall instead pay the Rent to Sublandlord under this Sublease. Subtenant shall
not commit or suffer any act or omission that will violate any of the
provisions of the Master Lease. Sublandlord shall exercise due diligence in
attempting to cause Landlord to perform its obligations under the Master Lease
for the benefit of Subtenant. If the Master Lease terminates as a result of a
default or breach of Sublandlord or Subtenant under this Sublease and/or the
Master Lease, then the defaulting party shall be liable to the nondefaulting
party for the direct damage suffered as a result of such termination.
Notwithstanding the foregoing, if the Master Lease gives Sublandlord any right
to terminate the Master Lease, whether in the event of the partial or total
damage destruction or condemnation of the Premises or the Property or Project
or the Premises or otherwise, the exercise of such right by Sublandlord shall
not constitute a default or breach hereunder. Neither Sublandlord nor
Subtenant shall be liable to the other under this Section 10.1 for any
indirect, incidental, special or consequential damages, including business
interruption or lost profits.
10.2 Notwithstanding anything to the contrary herein, the incorporated
provisions of the Master Lease are amended or qualified as follows:
a. Sublandlord shall not be liable under any
circumstances for a loss of or injury to property, or interference with
Subtenant's business, however occurring, incidental to any failure to furnish
any utilities or services.
b. Except as expressly set forth in this Section
10.2(b), Sublandlord shall have no responsibility to perform or construct (or
to pay the cost of performing or constructing) any repair, maintenance or
improvement in or to the Property, the Project or the Premises. Sublandlord
shall contribute toward the cost of Subtenant's Alterations an amount equal to
two (2) months' Base Rent. Accordingly, Subtenant shall be excused from the
payment of monthly Base Rent for such two-month period commencing with the
date Subtenant takes possession of the Premises. Subtenant's Alterations, if
any, shall be subject to approval by Sublandlord in accordance with Section 7
of the Master Lease. Notwithstanding the foregoing, the parties agree that in
addition to all other remedies which Sublandlord may have in the event
Subtenant shall suffer an Event of Default, Sublandlord shall also be entitled
to recover from Subtenant the value of the free rent period extended to
Subtenant under this Section 10.2.
c. Except as provided in subsection (b) above, Rent
shall be abated under this Sublease only to the extent that Sublandlord
receives a corresponding rent abatement under the Master Lease.
d. Wherever the Master Lease grants to Sublandlord a
grace or cure period, the corresponding grace or cure period under this
Sublease shall be two (2) business days shorter in duration.
10.3 The parties acknowledge that Sublandlord's ability to satisfy certain
of its obligations to Subtenant under this Sublease is contingent upon the full
and timely performance of Landlord's obligations under the Master Lease. The
parties further acknowledge that, while Sublandlord will use reasonable efforts
to cause Landlord to perform its obligations under the Master Lease,
Sublandlord will not be liable to Subtenant for any breach of Sublandlord's
obligations under this Sublease, nor shall such breach diminish Sublandlord's
rights hereunder, where the same is caused by or attributable to the failure of
Landlord to perform its obligations under the Master Lease.
10.4 Subtenant shall procure and maintain policies of insurance covering
liability and covering all contents, Subtenant's trade fixtures, machinery,
equipment, furniture and furnishing in the Premises (and all original and later
installed tenant improvements), including the insurance coverage required of
Tenant under Section 9 of the Master Lease; provided, however, that
notwithstanding the provisions of the Master Lease, Subtenant shall maintain
Commercial General
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Liability Insurance (referenced in Section 9(a) of the Master Lease) in amounts
of not less than $1 million per occurrence and $5 million for all occurrences
each year. Subtenant shall provide Sublandlord with evidence of such insurance
as a condition to Subtenant's right to take possession of the Premises.
10.5 Landlord under the Master Lease shall be served any and all notices of
default by Sublandlord against Subtenant or by Subtenant against Sublandlord in
the manner provided for service of such notice under the Master Lease.
11. BROKER PARTICIPATION
Sublandlord warrants and represents that it has dealt with no real estate
broker in conjunction with this Sublease other than The Staubach Company.
Subtenant warrants and represents that it has dealt with no real estate broker
in conjunction with this Sublease other than Corporate Facility Consulting,
Inc. Sublandlord shall pay and be responsible for the commissions due to The
Staubach Company under the terms of a separate commission agreement between
Sybase and The Staubach Company. Sublandlord and Subtenant each warrants and
represents to the other that no other brokers are entitled to any commission on
account of this Sublease, and each agrees to hold the other harmless from and
against any and all costs (including reasonable attorneys' fees), expenses or
liability for any compensation, commission and charges claimed by any broker
other than those identified in this Section 11, through such party with respect
to this Sublease.
12. ATTORNEYS' FEES
If Sublandlord or Subtenant shall commence an action against the other arising
out of or in connection with this Sublease, the prevailing party shall be
entitled to recover its costs of suit and reasonable attorneys' fees.
13. NOTICES
All notices and demands which may or are to be required or permitted to be
given by either party on the other hereunder shall be in writing. All notices
and demands by Sublandlord to Subtenant shall be sent by (i) United States
Mail, certified or registered, postage prepaid with return receipt requested,
or (ii) by nationally recognized overnight courier service providing receipted
delivery, addressed in either case to Subtenant at the Premises, or to such
other place as Subtenant may from time to time designate by notice to
Sublandlord. All notices and demands by Subtenant to Sublandlord shall be sent
by (i) United States Mail, certified or registered, postage prepaid with return
receipt requested, or (ii) by nationally recognized overnight courier service
providing receipted delivery, addressed to Sublandlord at the address set forth
herein, and to such other person or place as Sublandlord may from time to time
designate by notice to Subtenant. Any notice sent by United States Mail shall
be deemed delivered on the date of delivery or rejection as shown on the return
receipt or, in the absence of such date, on the third day following the deposit
thereof with the United States Postage Service. Any notice sent by overnight
courier service shall be deemed delivered on the delivery date as shown in the
regularly maintained business records of such courier service.
To Sublandlord: Sybase, Inc.
0000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Director of Real Estate
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Copy to:
Sybase, Inc.
0000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Real Estate Legal Counsel
To Subtenant: NeXstar Pharmaceuticals, Inc.
0000 Xxxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attn: Facility Manager
Copy to:
Xxxxx X. Xxxxxxxxx, Xx., Esq.
Xxxxxxxxxx, Black & Xxxx LLC
0000 Xxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxx, XX 00000
14. QUIET ENJOYMENT
Subject to the provisions of this Sublease, Sublandlord covenants that
Subtenant, upon performing its obligations under this Sublease, shall and may
peaceably and quietly have, hold and enjoy the Premises for the Sublease Term.
15. CONSENT BY LANDLORD
15.1 This Sublease is conditioned upon procuring the consent of Landlord to
this Sublease in accordance with the Master Lease (the "Consent"), which
Consent shall be evidenced by Landlord's signature and acknowledgment below.
Sublandlord and Subtenant shall cooperate with each other in seeking Landlord's
Consent.
15.2 If Landlord's Consent is withheld, this Sublease shall terminate upon
the delivery of written notice to Sublandlord and Subtenant that Landlord's
Consent will not be given. If this Sublease is so terminated: (i) all
consideration previously paid by Subtenant to Sublandlord on account of this
Sublease shall be returned to Subtenant, and (ii) the parties thereupon shall
be relieved of any further liability or obligation under this Sublease, except
for those liabilities or obligations which have accrued and remain unperformed
as of the date this Sublease is so terminated.
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17. ENTIRE AGREEMENT
This Sublease (including all Exhibits and Attachments hereto which are
incorporated and made a part hereof by this reference) represents the entire
agreement of the parties with respect to the subject matter hereof, supersedes
all prior and contemporaneous communications concerning such subject matter and
may not be amended or modified except in writing signed by both parties'
authorized officers.
Intending to be bound hereby the parties have, by their duly authorized
corporate officers, executed this Sublease on the dates set forth below.
Subtenant: Sublandlord:
NeXstar Pharmaceuticals, Inc. Sybase, Inc.
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By: /s/ XXXXXXX X. XXXX By: /s/ ILLEGIBLE
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Title: V.P. CFO Title: V.P. Controller
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Date: 8/2/96 Date: 8/6/96
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Exhibit A - Master Lease
Exhibit B - Estoppel Certificate
The undersigned Landlord, in accordance with Section 13.1 of the Lease, hereby
consents to the terms of the Sublease Agreement; provided, that Sublandlord, in
addition to performing its other obligations under the Lease, pays Landlord its
share of the excess rent in accordance with Section 13.1 of the Lease.
Furthermore, Landlord's consent to this Sublease shall not be deemed or
construed to release Sublandlord from its obligations under the Lease.
Landlord:
By: /s/ ILLEGIBLE
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Title: Vice President
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Date: 8/16/96
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