SUBLEASE GUARANTY
Exhibit
10.19
THIS
SUBLEASE GUARANTY (this "Guaranty") is dated as of Xxxx 15, 2005 (the "Effective
Date"), and is executed by COMBIMATRIX, CORPORATION., a Delaware Corporation
("Guarantor") in favor of ACCUPATH DIAGNOSTIC LABORATORIES, INC., dba U.S.
LABS,
a California corporation in connection with that Certain Sublease Agreement
(the
"Sublease"), dated June 15, 2005, between ACCUPATH DIAGNOSTIC LABORATORIES,
INC., DBA U.S. LABS, a California corporation ("Sublandlord") and COMBIMATRIX
MOLECULAR DIAGNOSTICS, INC., a California corporation, ("Subtenant") for the
Subleased Premises located at 000 Xxxxxxx Xxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxx.
The Sublease is subject to the terms, conditions and provisions of the Lease,
as
that term is defined in the Sublease. Sublandlord has requested that Guarantor
guarantee the Sublease. Consequently, Guarantor hereby acknowledges that this
Guaranty is being executed and delivered to Sublandlord as a material inducement
to and in consideration of Sublandlord entering into the Sublease with Subtenant
and that Sublandlord would not enter into the Sublease without the execution
and
delivery of this Guaranty. In consideration of Sublandlord's entering into
the
Sublease, Guarantor hereby agrees as follows;
1.
Guarantor hereby guarantees the punctual payment by Subtenant of all rent,
monies and charges payable under the Sublease incurred from and after the
Effective Date until the and of the term of the Sublease and the prompt and
complete performance of every covenant, condition and provision of the Sublease
to be kept, observed or performed by Subtenant from and after the Effective
Date. Guarantor shall indemnify, defend by counsel reasonably acceptable to
Sublandlord and hold Sublandlord harmless from and against any claims, demands,
liabilities, losses, costs, damages or expenses (including, without limitation,
reasonable attorneys' fees) arising directly or indirectly out of any failure
by
Subtenant to pay any rent, monies or charges payable by Subtenant under the
Sublease from and after the Effective Date or the failure by Subtenant to
perform any of the terms, covenants, conditions or provisions of the Sublease
to
be observed or performed by Subtenant from and after the Effective Date. All
payments to be made by Guarantor under this Guaranty shall be made without
deduction or offset and shall be made immediately upon demand by
Sublandlord.
2.
Guarantor hereby expressly waives (i) notice of the acceptance of this Guaranty,
(ii) and all notice of non-performance, non-payment or non-observance on the
part of Subtenant of the terms, covenants regarding; Subtenant's payment
obligations under the conditions and provisions of the Sublease, and (iii)
notice of any adverse changes in the financial status of Subtenant or other
facts which increase the risk of this Guaranty to Guarantor. Guarantor
specifically agrees that this is a guarantee of payment of performance, not
of
collection or satisfaction of judgment. Guarantor hereby consents to any remedy
pursued by Sublandlord or its successor-in-interest to enforce its rights under
the Sublease, in whatever order such party may choose, including any remedies
which may affect or destroy Guarantor's right of subrogation or the right of
Guarantor to
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proceed
against Subtenant for reimbursement. Without limiting the generality of the
foregoing, Guarantor hereby waives any rights Guarantor hereby waives any rights
Guarantor may have under California Civil Code sections 2809, 2819, 2845, 2849
and 2850, or any successor statutes. Other than the nonpayment of money,
Sublandlord will provide Guarantor reasonable notice of non-performance or
non-observance of the terms, covenants, conditions and provisions of the
Sublease.
3.
This
Guaranty is absolute and unconditional and the obligations of Guarantor under
this Guaranty shall not be released, discharged, mitigated, impaired or
affected, except to the same extent as Subtenant's obligations have been
affected by: (a) any extensions of time, indulgences or modifications which
Sublandlord may extend to or make with Subtenant in respect of or in the
performance of any of the obligations of Subtenant under any one or more of
the
provisions of the Sublease; (b) any waiver by or failure of Sublandlord to
enforce any term, covenant, condition or provision of the Sublease; (c) any
amendment, supplement, renewal or extension of the Sublease; (d) any assignment
of the Sublease by Subtenant or by any trustee, receiver or liquidator of
Subtenant; (e) any consent which. Sublandlord may give to any such assignment
or
to any other matter; or (f) the release, substitution or addition of any
guarantor of or party to the Sublease.
4.
Guarantor hereby waives any right to require Sublandlord to: (a) proceed against
Subtenant or any other person or pursue any rights or remedies with respect
to
the Sublease before proceeding against Guarantor; (b) proceed against or exhaust
any security of Subtenant held by Sublandlord; or (c) pursue any other remedy
whatsoever in Sublandlord's power. Sublandlord shall have the right to enforce
this Guaranty regardless of the acceptance of additional security from the
Subtenant and regardless of the release or discharge of Subtenant by Sublandlord
or by others or by operation of any law. Guarantor's obligations hereunder
are
independent of the obligations of Subtenant under the Sublease and a separate
action or actions may be brought and prosecuted against Guarantor whether or
not
any action is brought against Subtenant or Subtenant is joined in any such
action or actions.
5.
Without
limiting the generality of the foregoing, the liability of Guarantor under
this
Guaranty shall not be deemed to have been waived, released, discharged, impaired
or affected by reason of the release or discharge of Subtenant in any
receivership, bankruptcy, winding-up or other creditor's proceeding or the
rejection, disaffirmance or disclaimer of Subtenant's obligations under the
Sublease in any proceeding, and shall continue with respect to the periods
prior
thereto and thereafter, for and with respect to the term contemplated and
expressed in the Sublease. If Subtenant's obligations under the Sublease are
rejected in any bankruptcy, reorganization, or similar proceeding involving
Subtenant, or if the Sublease and/or any interest of Subtenant is terminated
as
a result of or in any such proceeding whether by action of or on behalf of
Sublandlord or Subtenant, then in either of such events, Guarantor hereby agrees
to and hereby does Sublease and hire as of the effective date of such rejection
or terminations, the Subleased Premises described in the Sublease, and
Sublandlord hereby agrees to and hereby does demise and rent such Subleased
Premises as of said time to Guarantor for
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what
would be, but for such rejection or termination, the remainder of the term
of
said Sublease, upon all of the provisions set forth in the Sublease, all of
which Guarantor covenants and agrees to perform and comply with as though
Guarantor were substituted for Subtenant as the Subtenant under the Sublease
as
of the time of such rejection or termination and as though the Sublease had
not
been so rejected or terminated but continued in full force and effect with
Guarantor as Subtenant. In such event, Sublandlord will take all reasonable
steps to assist or permit Guarantor to exercise its rights with respect to
use
and possession of the Premises. Notwithstanding anything to the contrary
contained in this Section 5, any such demise of the Subleased Premises by
Sublandlord to Guarantor shall be subject to the consent of the Lessor under
the
Lease and, if Lessor elects to recapture the Subleased Premises, the Sublease
and this Guaranty shall be void and of no effect as of the effective date of
such election of recapture.
6. The
liability of
Guarantor shall not be affected by any repossession of the Subleased Premises
by
Subtandlord, provided, however, that the net payments received by Sublandlord
after deducting all reasonable costs and expenses of repossessing and/or
reletting the same, shall be credited from time to time by Sublandlord
to the account of the Guarantor and Guarantor shall pay any balance owing to
Sublandlord from time to time, immediately upon demand by Sublandlord. Upon
repossession, Sublandlord shall take reasonable steps to mitigate its damages
and costs.
7. No
action
or proceeding brought or instituted under this Guaranty and no recovery in
pursuance
thereof shall be a bar or defense to any further action or proceeding which
may
be brought under this Guaranty by reason of any further default or defaults
hereunder and/or under the Sublease.
8. Guarantor
hereby waives and agrees not to assert or take advantage of: (a) the defense
of
any statute of limitations in any action under or related to this Guaranty
or
the Sublease; (b) any right or defense that may arise by reason of the
incapacity, lack of authority, death or disability of Subtenant or any other
person; (c) any and all defenses based upon an election of remedies by
Sublandlord which limits or destroys any subrogation rights Guarantor might
otherwise have; and (d) any bankruptcy of Subtenant.
9. Until
all
Subtenant's obligations under the Sublease are fully performed, Guarantor.
(a)
shell have no right of subrogation against Subtenant by reason of any payment
or
acts of performance by Guarantor under this Guaranty or any other guaranty
entered into by Guarantor; and (b) subordinates any liability or indebtedness
of
Subtenant now or hereafter held by Guarantor to the obligations of Subtenant
under, arising out of or related to the Sublease or Subtenant's use of the
premises demised thereby.
10. All
rights, powers and remedies of Sublandlord hereunder and under any other
agreement now or at any time hereafter in force between Sublandlord and
Guarantor relating to the Sublease shall be cumulative and not alternative
and
such rights, powers and remedies shall be in addition to all rights, powers
and
remedies given to Sublandlord by law.
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11. Should
any one or more provisions of this Guaranty be determined to be illegal or
unenforceable, all other provisions shall nevertheless be
effective.
12. This
Guaranty shall be governed by and construed in accordance with the laws of
the
State of California.
13. The
individual executing this Guaranty on behalf of Guarantor represents and
warrants that he is duly authorized to execute and deliver this Guaranty on
behalf of Guarantor in accordance with a duly adopted resolution of the Board
of
Directors of Guarantor or in accordance with the bylaws of Guarantor, and that
this Guaranty is binding upon Guarantor in accordance with its
terms.
14. Any
notice, request, demand, instruction or other communication to be given to
any
party hereunder shall be in writing and shall be sent by registered
or certified
mail, return receipt requested, to Guarantor at the address provided under
Guarantor's signature below, and if to Sublandlord, to the following
addresses:
Accupath
Diagnostic Laboratories, Inc.
0000
Xxxxxx Xxxxx
Xxxxxx,
Xxxxxxxxxx 00000
Attention:
CEO
Notices
shall be deemed to have been given forty-eight (48) hours after the deposit
of
the same in a United States mail post office box in a state to which the notice
is addressed, or seventy-two (72) hours after deposit of same
in
any such post
office box in a state other than the state to which the notice is addressed,
postage prepaid and addressed as set forth above. A. notice shall not be deemed
given unless and until it shall have been given to all address(es) to which
notices must be sent. Any panty may change its address(es) for notices by a
notice given in accordance with this Section.
15. No
modification of this Guaranty shall be effective unless the same shall be in
writing and signed by Guarantor and Sublandlord. No right of Sublandlord
hereunder shall be deemed to have been waived by any act of Sublandlord or
any
failure to exercise such right or any delay in exercising such right. Any waiver
by Sublandlord of any right of Sublandlord hereunder must be express and in
writing to be effective. No right of Guarantor hereunder shall be deemed to
have
been waived by
any
act
of Guarantor or any failure to exercise such right or any delay in exercising
such rights. Any waiver of Guarantor of any right of Guarantor hereunder mist
be
express and in writing to be effective.
16. All
of
the terms, agreements and conditions of this Guaranty shall extend to and be
binding upon Guarantor, its heirs, executors, administrators, successors and
assigns, and shall inure to the benefit of and may be enforced by Sublandlord,
its successors and assigns. Sublandlord may assign its rights under this
Guaranty.
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17. If
Sublandlord is
required to enforce Guarantor's obligations under this Guaranty by any legal
action or proceedings, or if a dispute arises in connection with the validity,
enforceability, enforcement or construction of this Guaranty or any other matter
relating to this Guaranty, the losing party shall pay all reasonable attorneys'
fees incurred by the prevailing party in such dispute.
18.
Guarantor hereby represents and warrants that: (a) Guarantor has received and
reviewed the Sublease and is familiar with the terns thereof; (b) the execution
of this Guaranty will
not
render Guarantor insolvent in any way; and (c) Sublandlord's entering into
the
Sublease materially benefits Guarantor and Guarantor is receiving fair
consideration for this Guaranty.
19.
Any
amount required to be paid by Guarantor hereunder shall bear interest from
the
date due until the date paid at the lesser of: (a) thirteen percent (13%) per
annum; or (b) the maximum rate permitted by law. All interest shall be
compounded monthly and shall be payable to Sublandlord on demand.
20. Time
is
of the essence
with
respect
to the performance of Guarantor's obligations hereunder.
21. This
Guaranty contains the entire agreement of Guarantor and Sublandlord with respect
to the subject matter hereof
22.
Guarantor hereby consents to the personal jurisdiction and venue of any
California state court and any United States court located in the State of
California and the service of process authorized by any such court. Process
may
be served upon Guarantor at its address for notices specified
herein.
23. All
capitalized terms used in this Guaranty shall have the same meaning as those
terms are used in the Sublease or the Lease.
IN
WITNESS WHEREOF, Guarantor has executed this Guaranty as of the day and year
written above.
"GUARANTOR"
COMBIMATRIX
CORPORATION, a
Delaware
corporation
By:
/s/ Xxxxx Xxxxxxx
Name:
Xxxxx Xxxxxxx
Title:
Vice President, Finance
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Guarantor's
Address for Notices:
CombiMatrix
Corporation
0000
Xxxxxxx Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxx,
Xxxxxxxxxx 00000
Attention:
General Counsel
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