SUBLEASE AGREEMENT
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This SUBLEASE AGREEMENT ("Sublease") is made and entered into as of the
15th day of June, 1995 by and between GENSIA, INC., a Delaware corporation
("Sublandlord") and COLLATERAL THERAPEUTICS, INC., a California corporation
("Subtenant").
WHEREAS, XXXX PROPERTY COMPANY, a California general partnership, as
landlord ("Landlord"), and Sublandlord, as tenant, are parties to a certain
Lease Agreement dated as of December 21, 1993 ("Master Lease") whereby
Landlord leased to Tenant the building (the "Building") located at 0000 Xxxxx
Xxxxxx Xxxxx, Xxx Xxxxx, XX 00000 ("Master Premises"), as more particularly
described in the Master Lease, upon the terms and conditions contained
therein. All capitalized terms used herein shall have the same meaning
ascribed to them in the Master Lease unless otherwise defined herein. A copy
of those portions of the Master Lease which are applicable to this Sublease
is attached hereto as Exhibit "A" and made a part hereof. Hereinafter, the
term 'Master Lease" shall refer to only those portions of the Master Lease
which are intended to be applicable to this Sublease, as attached hereto as
Exhibit "A".
WHEREAS, Sublandlord and Subtenant are desirous of entering into a
sublease of that portion of the Master Premises which is cross-hatched in
black on the demising plan annexed hereto as Exhibit "B" and made a part
hereof ("Sublease Premises") on the terms and conditions hereafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto mutually
covenant and agree as follows:
1. DEMISE. Sublandlord hereby subleases and demises to Subtenant and
Subtenant hereby hires and subleases from Sublandlord the Sublease Premises
(which the parties stipulate contain an aggregate of 4,431 rentable square
feet of office space located on the first floor of the Building), upon and
subject to the terms, covenants and conditions hereinafter set forth. The
Sublease Premises consist of two (2) separate areas, one comprised of 1,550
rentable square feet ("Area 1"), and the other comprised of 2,881 rentable
square feet ("Area 2"). The locations of Area 1 and Area 2 are depicted on
the attached Exhibit "B."
2. LEASE TERM. The term of this Sublease ("Term") shall commence on
the earlier of (i) June 15, 1995, or (ii) the
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date upon which Subtenant, or any person occupying any of the Sublease
Premises with Subtenant's permission, commences business operations from the
Sublease Premises ("Sublease Commencement Date") and end, unless sooner
terminated or extended as provided herein, on December 31, 1996 ("Sublease
Expiration Date"). The Term shall commence as to Area 1 on the Sublease
Commencement Date, and as to Area 2 on January 1, 1996 (the "Area 2 Sublease
Commencement Date"). The term "Sublease Premises," as used in this Sublease,
shall refer to Area 1 until the Area 2 Sublease Commencement Date and,
thereafter, shall refer to both Area 1 and Area 2.
3. USE. The Sublease Premises shall be used and occupied by Subtenant
solely for office use in compliance with the Master Lease and for no other
purpose.
4. SUBRENTAL.
(a) BASE RENTAL. Beginning with the Sublease Commencement Date and
thereafter during the Term of this Sublease and ending on the Sublease
Expiration Date, Subtenant shall pay to Sublandlord monthly installments of
base rent ("Base Rental") as follows:
(i) From and after the Sublease Commencement Date with
respect to Area 1, monthly installments in the amount of $2,294 each; and
(ii) From and after the Area 2 Sublease Commencement Date,
monthly installments in the amount of $6,557.88 each as to the entire
Sublease Premises.
The first monthly installment of Base Rental shall be paid by Subtenant
upon the execution of this Sublease. Base Rental and additional rent shall
hereinafter be collectively referred to as "Rent."
(b) PRORATIONS. If the Sublease Commencement Date is not the first
(1st) day of a month, or if the Sublease Expiration Date is not the last day
of a month, a prorated installment of monthly Base Rental based on a thirty
(30) day month shall be paid for the fractional month during which the Term
commenced or terminated.
(c) ADDITIONAL RENT.
(i) NORMAL OPERATING EXPENSES. Beginning with the Sublease
Commencement Date and continuing to the Sublease Expiration Date, Subtenant
shall pay to Sublandlord as additional rent for this subletting the cost of
all additional expenses, costs and charges payable to Landlord or to third
party providers by Sublandlord resulting from Subtenant's use
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of the Sublease Premises, which are not Normal Operating Expenses (as defined
below) for the Building and the Sublease Premises. The term "Normal Operating
Expenses" shall mean the full cost of all operating expenses (including
Building maintenance, common area expenses, insurance premiums for casualty
insurance maintained by Sublandlord with respect to the Building, but
excluding any insurance coverages for Subtenant's personal property),
security and janitorial services provided by Sublandlord and real estate
taxes, applicable to the Sublease Premises which are allocable to Subtenant's
normal and customary use of the Sublease Premises in accordance with this
Sublease. Normal Operating Expenses shall include Subtenant's utility charges
for electricity usage to the extent not separately metered to Subtenant and
shall exclude other excess or non-standard costs, expenses or charges
incurred with respect to Subtenant's use or occupancy of the Sublease
Premises which are incurred or requested by Subtenant. Subtenant shall not be
responsible for payment of any Impositions (as defined in Paragraph 9(a) of
the Master Lease) which are part of the Normal Operating Expenses or which
are not otherwise made the responsibility of Subtenant pursuant to this
Sublease.
(ii) TELEPHONE SYSTEM USAGE. Subtenant may elect to establish
telephonic (voice only) service to the Sublease Premises during the Term of
this Sublease by connection to Sublandlord's telephone system for the
Building. Subtenant shall provide a written request for such service to
Sublandlord specifying the number of telephone extensions requested by
Subtenant for the Sublease Premises together with payment in advance of the
sum of $600 for each telephonic extension Subtenant requests to service the
Sublease Premises as payment for Sublandlord's provision and installation of
necessary components, including telephones and the required circuitry, to
establish the connection of such extensions to Sublandlord's system. In
addition, Subtenant shall pay the amount of $100 monthly in advance to
Sublandlord for each telephone extension established to service the Sublease
Premises as reimbursement for maintenance and security services furnished by
Sublandlord with respect to each such extension. Telephones and other
equipment provided by Sublandlord for the Sublease Premises shall be of a
standard type used by Sublandlord in the Building. Telephones provided by
Sublandlord shall become the property of Subtenant upon payment of amounts
required hereunder to Sublandlord. All other components shall remain the
property of Sublandlord and shall be surrendered by Subtenant upon the
expiration or earlier termination of this Sublease. Subtenant shall have no
right to replace or upgrade such equipment except to the extent Sublandlord
agrees to any such replacement or upgrade on such terms and conditions as are
acceptable to Sublandlord and Subtenant pays all costs of Sublandlord
incurred in connection
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with any such replacement or upgrade. Upon sixty (60) days prior notice to
Subtenant, Sublandlord may elect to discontinue all or any portion of the
telephone services provided hereunder. Subtenant shall be responsible for
paying to the carrier supplying same, all fees, charges and costs incurred by
Subtenant for transmissions made to or from the Sublease Premises. All
amounts to be paid by Subtenant to Sublandlord under this Section 4(c)(ii)
shall constitute additional rent under this Sublease. Subtenant shall make
its own arrangements in accordance with this Sublease, at its sole cost and
expense, for any telecopier or data transmission service it requires with
respect to the Sublease Premises. Subtenant shall at all times comply with
Sublandlord's security and other requirements and procedures applicable to
Subtenant's use of Sublandlord's telephone system.
(d) PAYMENT OF RENT. Except as otherwise specifically provided in
this Sublease, Rent shall be payable in lawful money without demand, and
without offset, counterclaim, or setoff in monthly installments, in advance,
on the first day of each and every month during the Term of this Sublease.
All of said Rent is to be paid to Sublandlord at its office at the address
set forth in Section 13 herein, or at such other place or to such agent and
at such place as Sublandlord may designate by notice to Subtenant. Any
additional rent payable on account of items which are not payable monthly by
Sublandlord to Landlord under the Master Lease is to be paid to Sublandlord
as and when such items are payable by Sublandlord to third parties or to
Landlord under the Master Lease unless a different time for payment is
elsewhere stated herein. Upon written request therefor, Sublandlord agrees to
provide Subtenant with copies of any statements or invoices received by
Sublandlord from Landlord pursuant to the terms of the Master Lease.
(e) LATE CHARGE. Subtenant shall pay to Sublandlord an
administrative charge at an annual interest rate equal to the Prime Rate plus
three percent (3%) ("Interest Rate") on all amounts of Rent payable hereunder
which are not paid within three (3) business days of the date on which such
payment is due, such charge to accrue from the date upon which such amount
was due until paid.
5. SECURITY DEPOSIT. Concurrently with the execution of this
Sublease, Subtenant shall deposit with Sublandlord the sum of Two Thousand
Two Hundred Ninety-Four Dollars ($2,294) ("Deposit"), which shall be held by
Sublandlord as security for the full and faithful performance by Subtenant of
its covenants and obligations under this Sublease. Effective on the Area 2
Sublease Commencement Date, Subtenant shall deposit with Sublandlord an
amount sufficient to increase the Deposit to the sum of Six Thousand Five
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Hundred Fifty-Seven and Eighty-Eight One Hundredths Dollars ($6,557.88). The
Deposit is not an advance Rent deposit, an advance payment of any other kind,
or a measure of Sublandlord's damage in case of Subtenant's default. If
Subtenant defaults in the full and timely performance of any or all of
Subtenant's covenants and obligations set forth in this Sublease, then
Sublandlord may, from time to time, without waiving any other remedy
available to Sublandlord, use the Deposit, or any portion of it, to the
extent necessary to cure or remedy the default or to compensate Sublandlord
for all or a part of the damages sustained by Sublandlord resulting from
Subtenant's default. Subtenant shall immediately pay to Sublandlord within
five (5) days following demand, the amount so applied in order to restore the
Deposit to its original amount, and Subtenant's failure to immediately do so
shall constitute a default under this Sublease. If Subtenant is not in
default with respect to the covenants and obligations set forth in this
Sublease at the expiration or earlier termination of the Sublease,
Sublandlord shall return the Deposit to Subtenant after the expiration or
earlier termination of this Sublease. Sublandlord's obligations with respect
to the Deposit are those of a debtor and not a trustee. Sublandlord shall not
be required to maintain the Deposit separate and apart from Sublandlord's
general or other funds and Sublandlord may commingle the Deposit with any of
Sublandlord's general or other funds. Subtenant shall not at any time be
entitled to interest on the Deposit.
6. SIGNAGE. Subtenant shall have no right to maintain Subtenant
identification signs in any location in, on, or about the Premises other than
a listing in the lobby directory for the Building and an identification sign
located at the entry to the Sublease Premises, the size, appearance and
location of such signs to be subject to Sublandlord's prior approval. The
cost of such signs, including the installation, maintenance and removal
thereof, shall be at Subtenant's sole cost and expense. If Subtenant fails to
maintain its Sublease Premises sign, or if Subtenant fails to remove same
upon the expiration or earlier termination of this Sublease and repair any
damage caused by such removal, Sublandlord may do so at Subtenant's expense
and Subtenant shall reimburse Sublandlord for all actual costs incurred by
Sublandlord to effect such removal.
7. PARKING. At no additional rent or charge, Subtenant shall have the
right, during the Term of this Sublease, to use on a non-reserved basis up to
four (4) parking spaces in the parking facilities of the Building from and
after the Sublease Commencement Date. Said number of parking spaces shall
increase to seventeen (17) parking spaces from and after the Area 2 Sublease
Commencement Date. All such parking
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privileges shall be subject to the terms and conditions set forth in the Master
Lease.
8. INCORPORATION OF TERMS OF MASTER LEASE.
(a) This Sublease is subject and subordinate to the Master Lease.
Subject to the modifications set forth in this Sublease, the terms of the
Master Lease are incorporated herein by reference, and shall, as between
Sublandlord and Subtenant (as if they were "Landlord" and "Tenant,"
respectively, under the Master Lease) constitute the terms of this Sublease
except to the extent that they are inapplicable to, inconsistent with, or
modified by, the terms of this Sublease. Notwithstanding the foregoing, to
the extent provisions of the Master Lease are unique and personal to
Sublandlord's interest in the Building pursuant to the Master Lease or are
indicated on the attached Exhibit "A" as intentionally omitted from the
Master Lease, Subtenant shall not be required to comply with such provisions.
Provisions which are personal and unique to Sublandlord under the Master
Lease include, but are not limited to, Paragraphs 17, 18 and 19 of the Master
Lease. In the event of any inconsistencies between the terms and provisions
of the Master Lease and the terms and provisions of this Sublease, the terms
and provisions of this Sublease shall govern. Subtenant acknowledges that it
has reviewed the Master Lease and is familiar with the terms and conditions
thereof.
(b) For the purposes of incorporation herein, the terms of the Master
Lease are subject to the following additional modifications:
(i) In all provisions of the Master Lease (under the terms
thereof and without regard to modifications thereof for purposes of
incorporation into this Sublease) requiring the approval or consent of
Landlord, Subtenant shall be required to obtain the approval or consent of
both Sublandlord and Landlord.
(ii) In all provisions of the Master Lease requiring Tenant to
submit, exhibit to, supply or provide Landlord with evidence, certificates,
or any other matter or thing, including, without limitation, the provisions
of Sections 10(c) and 10(f) thereof, Subtenant shall be required to submit,
exhibit to, supply or provide, as the case may be, the same to both Landlord
and Sublandlord. In any such instance, Sublandlord shall determine if such
evidence, certificate or other matter or thing shall be satisfactory.
(iii) In the event of any taking by eminent domain or
casualty to the Sublease Premises such that
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Subtenant is deprived of the use and occupancy of greater than fifty percent
(50%) of the Sublease Premises for a period in excess of ninety (90) days,
Subtenant and Sublandlord shall each have the right to terminate this
Sublease upon not less than thirty (30) days written notice to the other. In
the event of any such taking by eminent domain or casualty such that
Subtenant is deprived of fifty percent (50%) or less of the use and occupancy
of the Sublease Premises, or in the event Subtenant elects to continue
occupancy of the remaining portion of the Sublease Premises after the
occurrence of a taking or casualty giving Subtenant a right to terminate this
Sublease, the Rent shall be proportionally reduced for the portion of the
Term during which Subtenant is prevented from using and occupying the damaged
or taken portion of the Sublease Premises. Sublandlord shall have no
obligation to restore or rebuild any portion of the Sublease Premises after
any destruction or taking by eminent domain, and Subtenant shall have no
rights to any portion of the award in any eminent domain proceeding affecting
the Sublease Premises.
(c) During the Term, Subtenant shall not be required to maintain
casualty insurance policies and coverages with respect to the Sublease
Premises and Subtenant shall be named as an additional insured under such
policies maintained by Sublandlord (to the extent of Subtenant's interest in
the Sublease Premises), evidence of such coverage to be in the form of a
certificate of insurance provided by Sublandlord to Subtenant; PROVIDED,
HOWEVER, such policies and coverages maintained by Sublandlord with respect
to the Building and the Sublease Premises shall not include coverage for
Subtenant's personal property and Subtenant, at its sole cost and expense,
shall maintain such policies and coverages with respect to its personal
property as it may elect. During the Term, Subtenant shall maintain a policy
of comprehensive general liability insurance with respect to its occupancy
of, and activities on, the Sublease Premises and related common areas, which
coverage shall be subject to any required waivers of subrogation as are
described under Paragraph 16 of the Master Lease and shall have a minimum
policy limit of $4,000,000 and shall otherwise meet the requirements of the
Master Lease for such insurance coverage. All such policies shall name
Sublandlord, Landlord and any other party required to be so named under the
Master Lease as additional insureds thereunder and shall be with carriers
reasonably acceptable to Sublandlord and, in all events, in accordance with
the requirements of the Master Lease except as otherwise provided
hereinabove. In the event Subtenant elects to carry its own policies of
casualty insurance with respect to the Sublease Premises, all such policies
shall name Sublandlord as an additional insured thereunder.
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9. SUBTENANT'S OBLIGATIONS. Subtenant covenants and agrees that all
obligations of Sublandlord under the Master Lease shall be done or performed
by Subtenant with respect to the Sublease Premises, except as otherwise
provided by this Sublease, and Subtenant's obligations shall run to
Sublandlord and Landlord as Sublandlord may determine to be appropriate or be
required by the respective interests of Sublandlord and Landlord. Subtenant
agrees to indemnify Sublandlord, and hold it harmless, from and against any
and all claims, damages, losses, expenses and liabilities (including
reasonable attorneys' fees) incurred as a result of the non-performance,
non-observance or non-payment of any of Sublandlord's obligations under the
Master Lease which, as a result of this Sublease, became an obligation of
Subtenant. If Subtenant makes any payment to Sublandlord pursuant to this
indemnity, Subtenant shall be subrogated to the rights of Sublandlord
concerning said payment. Subtenant shall not do, nor permit to be done, any
act or thing which is, or with notice or the passage of time would be, a
default under this Sublease or the Master Lease.
10. SUBLANDLORD'S OBLIGATIONS. Sublandlord covenants and agrees that
all obligations of Sublandlord under the Master Lease, other than those which
are to be done or performed by Subtenant, with respect to the Sublease
Premises shall be done or performed by Sublandlord. Sublandlord agrees that
Subtenant shall be entitled to receive all services and repairs to be
provided by Landlord to Sublandlord under the Master Lease. Subtenant shall
look solely to Landlord for all such services and shall not, under any
circumstances, seek nor require Sublandlord to perform any of such services,
nor shall Subtenant make any claim upon Sublandlord for any damages which may
arise by reason of Landlord's default under the Master Lease. Any condition
resulting from a default by Landlord shall not constitute as between
Sublandlord and Subtenant an eviction, actual or constructive, of Subtenant
and no such default shall excuse Subtenant from the performance or observance
of any of its obligations to be performed or observed under this Sublease, or
entitle Subtenant to receive any reduction in or abatement of the Rent
provided for in this Sublease unless, and to the extent, Sublandlord is
excused from performance, or entitled to a reduction or abatement of its
rental obligations to Landlord under the Master Lease also. In furtherance of
the foregoing, Subtenant does hereby waive any cause of action and any right
to bring any action against Sublandlord by reason of any act or omission of
Landlord under the Master Lease. Sublandlord covenants and agrees with
Subtenant that Sublandlord will pay all fixed rent and additional rent
payable by Sublandlord pursuant to the Master Lease to the extent that
failure to perform the same would adversely affect Subtenant's use or
occupancy of the Sublease Premises.
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11. DEFAULT BY SUBTENANT. In the event Subtenant shall be in default
of any covenant of, or shall fail to honor any obligation under, this
Sublease, Sublandlord shall have available to it against Subtenant all of the
remedies available (a) to Landlord under the Master Lease in the event of a
similar default on the part of Sublandlord thereunder or (b) at law.
12. QUIET ENJOYMENT. So long as Subtenant pays all of the Rent due
hereunder and performs all of Subtenant's other obligations hereunder,
Sublandlord shall do nothing to affect Subtenant's right to peaceably and
quietly have, hold and enjoy the Sublease Premises.
13. NOTICES. Anything contained in any provision of this Sublease to
the contrary notwithstanding, Subtenant agrees, with respect to the Sublease
Premises, to comply with and remedy any default in this Sublease or the
Master Lease which is Subtenant's obligation to cure, within the period
allowed to Sublandlord under the Master Lease, even if such time period is
shorter than the period otherwise allowed therein due to the fact that notice
of default from Sublandlord to Subtenant is given after the corresponding
notice of default from Landlord to Sublandlord. Sublandlord agrees to forward
to Subtenant, promptly upon receipt thereof by Sublandlord, a copy of each
notice of default received by Sublandlord in its capacity as Tenant under the
Master Lease. Subtenant agrees to forward to Sublandlord, promptly upon
receipt thereof, copies of any notices received by Subtenant from Landlord or
from any governmental authorities. All notices, demands and requests shall be
in writing and shall be sent either by hand delivery or by a nationally
recognized overnight courier service (e.g., Federal Express), in either case
return receipt requested, to the address of the appropriate party. Notices,
demands and requests so sent shall be deemed given when the same are
received. Notices to Sublandlord shall be sent to the attention of:
Gensia, Inc.
0000 Xxxxx Xxxxxx Xxxxx
Xxx Xxxxx, XX 00000
Attn: Xx. Xxxx Xxxxxxx
with a copy to:
Pillsbury Madison & Sutro
000 X. Xxxxxxxx, Xxxxx 0000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attn: Xxxx X. Xxxxxx, Esq.
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Notices to subtenant shall be sent to the attention of:
Collateral Therapeutics, Inc.
0000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000X
Xxx Xxxxx, XX 00000
Attn: Xxxxxxxxxxx X. Xxxxxxxx
14. BROKER. Sublandlord and Subtenant represent and warrant to each
other that no brokers were involved in connection with the negotiation or
consummation of this Sublease. Each party agrees to indemnify the other, and
hold it harmless, from and against any and all claims, damages, losses,
expenses and liabilities (including reasonable attorneys' fees) incurred by
said party as a result of a breach of this representation and warranty by the
other party.
15. CONDITION OF PREMISES. Subtenant acknowledges that it is
subleasing the Sublease Premises "as-is" in an unfurnished condition and that
Sublandlord is not making any representation or warranty concerning the
condition of the Sublease Premises and that Sublandlord is not obligated to
perform any work to prepare the Sublease Premises for Subtenant's occupancy.
Subtenant acknowledges that it is not authorized to make or do any
alterations or improvements in or to the Sublease Premises without
Sublandlord's prior written consent, which consent may impose additional
requirements applicable to the construction and completion of such
alterations or improvements in addition to requiring Subtenant's compliance
with requirements of the Master Lease. Subtenant further acknowledges that it
must deliver the Sublease Premises to Sublandlord on the Sublease Expiration
Date in the condition substantially the same as that on the Sublease
Commencement Date.
16. CONSENT OF LANDLORD. Section 21(b) of the Master Lease requires
Sublandlord to provide thirty (30) days' written notice of this Sublease to
Landlord. Although Sublandlord does not believe that this Sublease requires
the consent of Landlord pursuant to applicable provisions of the Master
Lease, in the event Landlord determines that such consent is required,
Sublandlord shall solicit Landlord's consent to this Sublease promptly
following the execution and delivery of this Sublease by Sublandlord and
Subtenant.
17. TERMINATION OF THE LEASE. If for any reason the term of the Master
Lease shall terminate prior to the Sublease Expiration Date, this Sublease
shall automatically be terminated and Sublandlord shall not be liable to
Subtenant by reason thereof unless said termination shall have been caused by
the default of Sublandlord under the Master Lease, and said
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Sublandlord default was not as a result of a Subtenant default hereunder.
18. ASSIGNMENT AND SUBLETTING.
(a) Independent of and in addition to any provisions of the Master
Lease, including without limitation the obligation to obtain Landlord's
consent to any assignment, it is understood and agreed that Subtenant shall
have no right to sublet the Sublease Premises or any portion thereof or any
right or privilege appurtenant thereto; PROVIDED, HOWEVER, that Subtenant
shall have the right to assign this Sublease or any interest therein, and to
suffer or permit any other person (other than agents, servants or associates
of the Subtenant) to occupy or use the Sublease Premises, only upon the prior
written consent of Sublandlord and Landlord, which consent shall not be
unreasonably withheld. Any assignment by Subtenant without Sublandlord's
prior written consent shall be void and shall, at the option of Sublandlord,
terminate this Sublease.
(b) Subtenant shall advise Sublandlord by notice of (i)
Subtenant's intent to assign this Sublease, (ii) the name of the proposed
assignee and evidence reasonably satisfactory to Sublandlord that such
proposed assignee is comparable in reputation, stature and financial
condition to tenants then leasing comparable space in comparable buildings,
and (iii) the terms of the proposed assignment. Sublandlord shall, within
thirty (30) days of receipt of such notice, and any additional information
requested by Landlord concerning the proposed assignee's financial
responsibility, elect one of the following:
(i) Consent to such proposed assignment;
(ii) Refuse such consent, which refusal shall be on reasonable
grounds; or
(iii) Elect to terminate the Sublease.
(c) In the event that Sublandlord shall consent to an assignment
under the provisions of this Section 18, Subtenant shall pay Sublandlord's
reasonable processing costs and reasonable attorneys' fees incurred in giving
such consent. Notwithstanding any permitted assignment, Subtenant shall at
all times remain directly, primarily and fully responsible and liable for all
payments owed by Subtenant under the Sublease and for compliance with all
obligations under the terms, provisions and covenants of the Sublease. If for
any proposed assignment, Subtenant receives Rent or other consideration,
either initially or over the term of the assignment, in excess of the Rent
required by this Sublease, after a deduction for
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the following: (a) any brokerage commission paid by Subtenant in connection
therewith and (b) any reasonable attorneys fees in connection with preparing
and negotiating an assignment document ("Profit"), Subtenant shall pay to
Sublandlord as additional Rent, fifty percent (50%) of such Profit or other
consideration received by Subtenant within five (5) days of its receipt by
Subtenant or, in the event the assignee makes payment directly to
Sublandlord, Sublandlord shall refund fifty percent (50%) of the Profit to
Subtenant after deducting (a) and (b) above.
(d) Occupancy of all or part of the Sublease Premises by parent,
subsidiary, or affiliated companies or a joint venture partnership of
Subtenant shall not be deemed an assignment or subletting provided that such
parent, subsidiary or affiliated companies or a joint venture partnership
were not formed as a subterfuge to avoid the obligation of this Section 18.
If Subtenant is a corporation, unincorporated association, trust or general
or limited partnership, then the sale, assignment, transfer or hypothecation
of any shares, partnership interest, or other ownership interest of such
entity or the dissolution, merger, consolidation, or other reorganization of
such entity, or the sale, assignment, transfer or hypothecation of the assets
of such entity, shall not be deemed an assignment or sublease subject to the
provisions of this Section 18.
19. LIMITATION OF ESTATE. Subtenant's estate shall in all respects be
limited to, and be construed in a fashion consistent with, the estate granted
to Sublandlord by Landlord. Subtenant shall stand in the place of Sublandlord
and shall defend, indemnify and hold Sublandlord harmless with respect to all
covenants, warranties, obligations, and payments made by Sublandlord under or
required of Sublandlord by the Master Lease with respect to the Subleased
Premises. In the event Sublandlord is prevented from performing any of its
obligations under this Sublease by a breach by Landlord of a term of the
Master Lease, then Sublandlord's sole obligation in regard to its obligation
under this Sublease shall be to use reasonable efforts in diligently pursuing
the correction or cure by Landlord of Landlord's breach.
20. ENTIRE AGREEMENT. It is understood and acknowledged that there are
no oral agreements between the parties hereto affecting this Sublease and
this Sublease supersedes and cancels any and all previous negotiations,
arrangements, brochures, agreements and understandings, if any, between the
parties hereto or displayed by Sublandlord to Subtenant with respect to the
subject matter thereof, and none thereof shall be used to interpret or
construe this Sublease. This Sublease, and the exhibits and schedules
attached hereto, contain all of the terms, covenants, conditions, warranties
and
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agreements of the panties relating in any manner to the rental, use and
occupancy of the Sublease Premises and shall be considered to be the only
agreements between the parties hereto and their representatives and agents.
None of the terms, covenants, conditions or provisions of this Sublease can
be modified, deleted or added to except in writing signed by the parties
hereto. All negotiations and oral agreements acceptable to both parties have
been merged into and are included herein. There are no other representations
or warranties between the parties, and all reliance with respect to
representations is based totally upon the representations and agreements
contained in this Sublease.
IN WITNESS WHEREOF, the parties have entered into this Sublease as of
the date first written above.
SUBLANDLORD:
GENSIA, INC.,
a Delaware corporation
By: /s/ Illegible
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Its: VP Finance
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SUBTENANT:
COLLATERAL THERAPEUTICS, INC.,
a California corporation
By: /s/ Xxxxxxxxxxx Xxxxxxxx
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Its: Vice President CFO
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EXHIBIT "A"
COPY OF MASTER LEASE
Attached
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LEASE AGREEMENT
by and between
XXXX PROPERTY COMPANY,
a California partnership
as LANDLORD
and
GENSIA, INC.,
a Delaware corporation,
as TENANT
Premises: San Diego, California
Dated as of: December 21, 1993
LEASE AGREEMENT, made as of this 21st day of December, 1993, between XXXX
PROPERTY COMPANY, a California partnership, ("LANDLORD") the partners of which
are XXXX (CA) QRS 11-25, INC., a California corporation ("XXXX:11") and XXXX
(CA) QRS 12-1, INC., a California corporation ("XXXX:12") with an address c/o W.
P. Xxxxx & Co., Inc., 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and GENSIA,
INC. ("TENANT"), a Delaware corporation with an address at 0000 Xxxxx Xxxxxx
Xxxxx, Xxx Xxxxx, Xxxxxxxxxx 00000.
In consideration of the rents and provisions herein stipulated to be paid
and performed, Landlord and Tenant hereby covenant and agree as follows:
1. DEMISE OF PREMISES. Landlord hereby demises and lets to Tenant, and
Tenant hereby takes and leases from Landlord, for the term and upon the
provisions hereinafter specified, the following described property
(collectively, the "LEASED PREMISES"): (a) the real property described in
EXHIBIT "A-1" hereto, together with the Appurtenances (collectively, the
"LAND"); (b) the buildings, structures, driveways, walkways and other
improvements now or hereafter constructed on the Land (collectively, the
"STRUCTURES"); and (c) the Building Systems Equipment (as defined in Paragraph
2).
2. CERTAIN DEFINITIONS.
"Additional Rent" shall mean Additional Rent as defined in Paragraph
7.
"Adjoining Property" shall mean all appurtenant sidewalks, driveways,
curbs, gores and vault spaces which are located on land adjoining the Land and
which Tenant is entitled to use and responsible to repair.
"Affiliate" with respect to Tenant shall mean any other Person
controlling, controlled by or under common control with Tenant and "control"
shall mean the power to direct or cause the direction of the management and
policies of such Person, whether by contract or otherwise.
"Alterations" shall mean all changes, additions, improvements or
repairs to, all alterations, reconstructions, renewals, replacements or removals
of and all substitutions or replacements for any of the Improvements, both
interior and exterior, structural and non-structural, and ordinary and
extraordinary.
"Appurtenances" shall mean all tenements, hereditaments, easements,
rights-of-way, rights, privileges in and to the Land, including (a) easements
over other lands granted by any Easement Agreement and (b) rights to use any
streets, ways, alleys, vaults, gores or strips of land adjoining the Land.
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"Contractors" shall mean those contractors who are parties to the
Construction Contracts.
"Costs" of a Person or associated with a specified transaction shall
mean all reasonable costs and expenses incurred by such Person or associated
with such transaction, including without limitation, attorneys' fees and
expenses, court costs, brokerage fees, escrow fees, title insurance premiums,
mortgage commitment fees, mortgage points, recording fees and transfer taxes, as
the circumstances require.
"Covenant Breach" shell mean Covenant Breach as defined in Paragraph
29(e).
"Covenant Event of Default" shall mean a Covenant Breach for which a
Letter of Credit is not issued in accordance with the provisions of Paragraph
29(e).
"CPI" shall mean the CPI as defined in EXHIBIT "D".
"Debt Rent" shall mean Debt Rent as defined in Paragraph 37(a)(ii).
"Default Rate" shall mean the Default Rate as defined in Paragraph
7(a)(iv).
"Direct Costs" shall mean Direct Costs as defined in Section 1.01 of
the Construction Management Agreement.
"Early Termination Amount" shall mean [INTENTIONALLY OMITTED].
"Early Termination Date" shall mean Early Termination Date as defined
in Paragraph 18.
"Early Termination Event" shall mean an Early Termination Event as
defined in Paragraph 18.
"Early Termination Notice" shall mean Early Termination Notice as
defined In Paragraph 18.
"Easement Agreements" shall mean any recorded conditions, covenants,
restrictions, easements, declarations, licenses and other agreements affecting
the Leased Premises. The initial Easement Agreements are listed on the Schedule
of Permitted Encumbrances attached hereto as EXHIBIT "C". Tenant shall not
negotiate or execute any Easement Agreement without Landlord's prior written
consent, which shall not be unreasonably withheld or delayed. If Tenant or
Landlord subsequently negotiates and the other party approves Easement
Agreements in addition to those listed on EXHIBIT "C", such additional Easement
Agreements shall be deemed to be Included as
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Landlord, Tenant or Lender, any Federal, state or local government or any other
Person for the costs of any removal or remedial action or natural resources
damage or for bodily injury or property damage, (b) any deposit, storage,
dumping, placement or use of any Hazardous Substance at, upon, under or within
the Leased Premises or which extends to any Adjoining Property in violation of
any Environmental Law or in excess of any reportable quantity established under
any Environmental Law or which could result in any liability to any Federal,
state or local government or to any other Person for the costs of any removal or
remedial action or natural resources damage or for bodily injury or property
damage, (c) the abandonment or discarding of any barrels, containers or other
receptacles containing any Hazardous Substances in violation of any
Environmental Laws, (d) any activity, occurrence or condition which could result
in any liability, cost or expense to Landlord or Lender or any other owner or
occupier of the Leased Premises, or which could result in a creation of a lien
on the Leased Premises, under any Environmental Law, or (e) any violation of or
noncompliance with any Environmental Law.
"Equipment" shall mean Building Systems Equipment and Tenant's
Equipment.
"Equity Rent" shall mean Equity Rent as defined in Paragraph 37(b).
"Event of Default" shall mean an Event of Default as defined in
Paragraph 22(a).
"Existing Leases" is defined in Paragraph 21.
"Fair Market Rent" shall mean Fair Market Rent as determined in
accordance with Section 3 of EXHIBIT "D".
"Federal Funds" shall mean federal or other immediately available
funds which at the time of payment are legal tender for the payment of public
and private debts in the United States of America.
"Final Release Conditions" shall mean Final Release Conditions as
defined in Paragraph 29.
"Financial Covenants" shall mean the financial covenants of Tenant
described on EXHIBIT "E".
"Funded Indebtedness" shall mean Funded Indebtedness as defined in
EXHIBIT "E".
"Funding Deadline" shall mean [INTENTIONALLY OMITTED].
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"Indirect Costs" shall mean Indirect Costs as defined in Section 1.01
of the Construction Management Agreement.
"Initial Lender" shall mean The Northwestern Mutual Life Insurance
Company and its successors and assigns with respect to the Initial Loan.
"Initial Loan" shall mean the [INTENTIONALLY OMITTED]loan from Initial
Lender to Landlord.
"Initial Term" shall mean the Initial Term as defined in Paragraph 5.
"Initial Term Commencement Date" shall mean Initial Term Commencement
Date as defines in Paragraph 5(a).
"Initial Term Expiration Date" shall mean Initial Term Commencement
Date as defined in Paragraph 5(a).
"Insurance Requirements" shall mean the requirements of all insurance
policies required to be maintained in accordance with this Lease.
"Land" shall mean the Land as defined in Paragraph 1 and described in
EXHIBIT "A-1".
"Landlord's Cash Contribution" shall mean [INTENTIONALLY OMITTED].
"Landlord's Maximum Contribution" shall mean [INTENTIONALLY OMITTED].
"Landlord's Share of Project Costs" shall mean [INTENTIONALLY
OMITTED].
"Law" shall mean any constitution, statute, rule of law, code,
ordinance, order, judgment, decree, injunction, rule, regulation, policy,
requirement or administrative or judicial determination, even if unforeseen or
extraordinary, of every duly constituted governmental authority, court or
agency, now or hereafter enacted or in effect.
"Lease" shall mean this Lease Agreement.
"Leased Premises" shall mean the Leased Premises as defined in
Paragraph 1.
"Legal Requirements" shall mean all present and future Laws (including
but not limited to Environmental Laws and Laws relating to accessibility to,
usability by, and discrimination against, disabled individuals) and all
covenants, restrictions and conditions now or hereafter of record which may be
applicable to Tenant or to any of the Leased Premises, or to
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"Note" shall mean any promissory note evidencing Landlord's obligation
to repay a Loan, as the same may be amended, supplemented or modified.
"Notice Receipt Date" shall mean Notice Receipt Date as defined in
Paragraph 18(b).
"Occupancy Date" shall mean the date on which each of the following
events has occurred: (i) the Tenant Improvements have been completed
substantially in accordance with the Plans, as certified to Landlord by the
Architect (as defined in the Construction Management Agreement), and (ii) all
permanent permits and licenses required for the occupancy of the Leased Premises
have been obtained.
"Partial Casualty" shall mean any Casualty which does not constitute
an Early Termination Event.
"Partial Condemnation" shall mean any Condemnation which does not
constitute an Early Termination Event.
"Partial Release Conditions" shall mean Partial Release Conditions as
defines in Paragraph 29(b).
"Permitted Encroachments" shall mean the encroachments listed on that
certain ALTA/ACSM Land Title Survey of the Land dated December 2, 1992 and
revised November 21, 1993 which was prepared by Xxxx & Clark's National
Surveyors Network.
"Permitted Encumbrances" shall mean the existing state of title to the
Leased Premises including those covenants, restrictions, reservations, liens,
conditions and easements and other encumbrances, other than any Mortgage or
Assignment by Landlord, listed on EXHIBIT "C" hereto. It is agreed that such
listing shall not be deemed to revive any such encumbrances that have expired or
terminated or are otherwise invalid or unenforceable.
"Person" shall mean an individual, partnership, association,
corporation or other entity.
"Plans" shall mean the plane and specifications prepared and to be
prepared by McGraw Xxxxxxx Architects or another architect selected by Tenant
for the installation and construction of the Tenant Improvements. A list of the
existing Plans is attached to the Construction Management Agreement. Any
amendments, modifications or additions to the Plans shall be approved as
provided in the Construction Management Agreement.
"Prepayment Premium" shall mean any payment (other than a payment of
principal and/or interest which Landlord is required to make under a Note or a
Mortgage) by reason of any prepayment by Landlord of any principal due under
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"Rent Determination Date" shall mean the date when the Fair Market
Rent is determined in accordance with Section 3 of EXHIBIT "D".
"Requisition" shall mean any temporary requisition or confiscation of
the use or occupancy of any of the Leased Premises by any governmental
authority, civil or military, whether pursuant to an agreement with such
governmental authority in settlement of or under threat of any such requisition
or confiscation, or otherwise.
"Retention Date" Shall mean the later of the date on which the amount
of the Remaining Sum is finally determined or the date on which Landlord's right
to the Remaining Sum is finally determined.
"Site Assessment" shall mean a Site Assessment as defined in Paragraph
10(c).
"State" shall mean the State of California.
"Structures" shall mean the Structures as defined in Paragraph 1.
"Surviving Obligations" shall mean any obligations of Tenant under
this Lease, actual or contingent, which arise on or prior to the expiration or
prior termination of this Lease or which survive such expiration or termination
by their own terms.
"Taking" shall mean (a) any taking or damaging of all or a portion of
any of the Leased Premises (i) in or by condemnation or other eminent domain
proceedings pursuant to any Law, general or special, or (ii) by reason of any
agreement with any condemner in settlement of or under threat of any such
condemnation or other eminent domain proceeding, or (b) any inverse or other de
facto condemnation. The Taking shall be considered to have taken place as of the
later of the date actual physical possession is taken by the condemner, or the
date on which the right to compensation and damages accrues under the Law
applicable to the Leased premises.
"Tenant Improvements" shall mean all interior improvements and
equipment to be purchased, paid for, constructed and/or installed in the
Structures, all in accordance with the Plans and the terms of the Construction
Management Agreement. The Tenant Improvements, including the Building Systems
Equipment, shall not include Tenant's Equipment.
"Tenant's Equipment" shall mean all furniture, fixtures and equipment
which are owned and paid for by Tenant at any time before or during the Term and
transferred to and installed in the Structures and any replacements thereof,
except
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COMPLETE EXCLUSION AND NEGATION OF ANY WARRANTIES BY LANDLORD, EXPRESS OR
IMPLIED, WITH RESPECT TO ANY OF THE LEASED PREMISES, ARISING PURSUANT TO THE
UNIFORM COMMERCIAL CODE OR ANY OTHER LAW NOW OR HEREAFTER IN EFFECT OR ARISING
OTHERWISE.
(c) Tenant represents to Landlord that Tenant has examined the title
to the Leased Premises prior to the execution and delivery of this Lease and has
found the same to be satisfactory for the purposes contemplated hereby. Tenant
acknowledges that (i) fee simple title (both legal and equitable) is in Landlord
and that Tenant has only the leasehold right of possession and use of the Leased
Premises as provided herein, (ii) the Structures conform to all material Legal
Requirements and all Insurance Requirements, (iii) all easements necessary or
appropriate for the use or operation of the Leased Premises have been obtained,
(iv) except as shown on the schedule of even date delivered to Landlord, all
contractors and subcontractors who have performed work on or supplied materials
to the Leased Premises have been fully paid, and all materials and supplies have
been fully paid for, (v) the Structures (except for the Tenant Improvements)
have been fully completed in all material respects in a workmanlike manner of
first class quality, (vi) all Equipment (except for the Tenant Improvements)
necessary or appropriate for the use or operation of the Leased Premises has
been installed and is presently fully operative In all material respects, and
(vii) upon completion of the Tenant Improvements the Tenant Improvements will be
fully completed, installed and operative in all respects and of a first class
quality.
(d) Landlord hereby assigns to Tenant, without recourse or warranty
whatsoever, all warranties, guaranties, indemnities and similar rights which
Landlord may have against any manufacturer, seller, engineer, contractor or
builder in respect of any of the Leased Premises. Such assignment shall remain
in effect until an Event of Default occurs or until the expiration or earlier
termination of this Lease, whereupon such assignment shall cease and all of said
warranties, guaranties, indemnities and other rights shall automatically revert
to Landlord.
(e) Pursuant to the Construction Management Agreement, Tenant will
cause the Tenant Improvements to be constructed and installed with funds more
particularly described in the Construction Management Agreement. The Tenant
Improvements will be owned by Landlord and are included within the Leased
Premises. Tenant acknowledges that the Tenant Improvements have not yet been
completed and that, pursuant to the Construction Management Agreement, Tenant
has the responsibility for causing the Tenant Improvements to be completed in
accordance with the terms of the Construction Management Agreement. Landlord
will not make any representations or warranties with respect to the Tenant
Improvements. Tenant further acknowledges that, upon occurrence
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minimize disclosure by Tenant of confidential or proprietary products being
developed or manufactured by Tenant.
5. TERM.
(a) Subject to all of the provisions of this Lease, Tenant shall have
and hold the Leased Premises for a primary term ("PRIMARY TERM") commencing on
the date hereof and ending on the last day of the calendar month in which the
Funding Deadline occurs (the "PRIMARY TERM EXPIRATION DATE") and for an initial
term (the "INITIAL TERM") commencing on the first day of the first month
following the Primary Term Expiration Date (the "INITIAL TERM COMMENCEMENT
DATE") and ending on the last day (the "INITIAL TERM EXPIRATION DATE") of the
one hundred eightieth (180th) calendar month next following the date on which
the Initial Term commences. If all Rent and all other sums due hereunder shall
not have been fully paid by the end of the Term, Landlord may, at its option,
extend the Term on a month-to-month basis until all said sums have been fully
paid.
(b) Provided that if, on or prior to the Initial Term Expiration Date
or any other Renewal Date (as hereinafter defined) this Lease shall not have
been terminated pursuant to any provision hereof, then on the Initial Term
Expiration Date and on the tenth (10th), twentieth (20th) and thirtieth (30th)
anniversaries of the Initial Term Expiration Date (the Initial Term Expiration
Date and each such anniversary being a "RENEWAL DATE"), the Term shall be deemed
to have been automatically extended for an additional period of ten (10) years
(each such ten (10) year period, a "RENEWAL TERM"), unless Tenant shall notify
Landlord in writing at least one (1) year prior to the next Renewal Date that
Tenant is terminating this Lease as of the next Renewal Date. If Tenant so
notifies Landlord of Tenant's election to terminate this Lease, Tenant shall
deliver to Landlord such additional documents in recordable form as are
necessary to delete from the public records any reference to the leasehold
estate and other rights of Tenant hereunder. Any such extension of the Term
shall be subject to all of the provisions of this Lease, as the same may be
amended, supplemented or modified.
(c) If Tenant exercises its option not to extend or further extend
the Term, or if an Event of Default occurs, then Landlord shall have the right
during the remainder of the Term then in effect and, in any event, Landlord
shall have the right during the last year of the Term, to (i) advertise the
availability of the Leased Premises for sale or reletting and to erect upon the
Leased Premises signs indicating such availability and (ii) show the Leased
Premises to prospective purchasers or tenants or their agents at such reasonable
times as Landlord may select. Tenant may reasonably limit the extent of any such
inspection so as to minimize disclosure by Tenant of
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following sums until paid in full: (1) all overdue installments of Basic Rent
from the respective due dates thereof, provided that the Default Rate shall not
be due on any installment not paid as a result of Initial Lender's failure to
draw on the Letter of Credit pursuant to Paragraph 37(b) hereof, (2) all overdue
amounts of Additional Rent relating to obligations which Landlord or Lender
shall have paid on behalf of Tenant, beginning five (5) Business Days after
notice of payment thereof by Landlord or Lender, and (3) all other overdue
amounts of Additional Rent, from the date when any such amount becomes overdue.
(b) Subject to any specific provisions of this Lease to the contrary,
Tenant shall pay and discharge (i) any Additional Rent referred to in Paragraph
7(a)(i) when the same shall become due, provided that amounts which are billed
to Landlord, Lender or any third party, but not to Tenant, shall be paid within
ten (10) days after Landlord's or Lender's written demand for payment thereof,
and (ii) any other Additional Rent, within fifteen (15) days following Landlords
demand for payment thereof. At the time Landlord makes demand for payment,
Landlord shall furnish to Tenant reasonably detailed invoices or statements for
all items of Additional Rent paid by Landlord or Lender.
(c) Notwithstanding anything in this Paragraph 7 to the contrary,
Tenant shall not be responsible for paying any costs of Landlord and/or any
Lender incurred with respect to any sale, transfer, or financing of the Leased
Premises by Landlord unless Tenant purchases the Leased Premises from Landlord
pursuant to any provision of this Lease which requires Tenant to pay such costs.
8. NET LEASE; NON-TERMINABILITY.
(a) This is a net lease and all Monetary Obligations shall be paid
without notice or demand and without set-off, counterclaim, recoupment,
abatement, suspension, deferment, diminution, deduction, reduction or defense
(collectively, a "SET-OFF").
(b) Except as otherwise expressly provided herein, this Lease and the
rights of Landlord and the obligations of Tenant hereunder shall not be affected
by any event or for any reason, including the followings (i) any damage to or
theft, loss or destruction of any of the Leased Premises, (ii) any Condemnation,
(iii) the prohibition, limitation or restriction of Tenant's use of any of the
Leased Premises, (iv) any eviction by paramount title or otherwise, (v) Tenant's
acquisition of ownership of any of the Leased Premises other than pursuant to an
express provision of this Lease, (vi) any default on the part of Landlord
hereunder or under any Note, Mortgage, Assignment by Landlord or any other
agreement, (vii) any latent or other defect in any of the Leased Premises,
(viii) the breach of any
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pay (collectively, the "IMPOSITIONS"); provided, however, that nothing herein
shall obligate Tenant to pay (A) income, excess profits or other taxes of
Landlord (or Lender) which are determined on the basis of Landlord's (or
Lender's) net income or net worth (unless and only to the extent that such taxes
are in lieu of or a substitute for any other tax, assessment or other charge
upon or with respect to the Leased Premises which, if it were in effect, would
be payable by Tenant under the provisions hereof or by the terms of such tax,
assessment or other charge), (B) any estate, inheritance, succession, gift or
similar tax imposed on Landlord, (C) any capital gains tax imposed on Landlord
in connection with the sale of the Leased Premises to any Person, (D)
installments of principal and/or interest payable by Landlord on any Loan, (E)
property management fees payable by Landlord or (F) increases in real estate
taxes which result from a transfer of the Leased Premises during the first three
(3) years of the Initial Term or from a transfer of the Leased Premises at any
time to any affiliate of Landlord or of Corporate Property AssociateS 11
Incorporated or Corporate Property Associates 12 Incorporated. If any Imposition
may be paid in installments without interest or penalty, Tenant shall have the
option to pay such Imposition in installments; in such event, Tenant shall be
liable only for those installments which accrue or become due and payable during
the Term. Tenant shall prepare and file all tax reports required by governmental
authorities which relate to the Impositions. Tenant shall deliver to Landlord
(1) copies of all settlements and notices pertaining to the Impositions which
may be issued by any governmental authority within ten (10) days after Tenant's
receipt thereof, (2) receipts for payment of all taxes required to be paid by
Tenant hereunder within thirty (30) days after the due date thereof and (3)
receipts for payment of all other Impositions within ten (10) days after
Landlord's request therefor.
(b) At any time following the occurrence of a Monetary Event of
Default or at any time following a draw on the Letter of Credit, Landlord shall
have the right to require Tenant to pay to Landlord an additional monthly sum
(each an "ESCROW PAYMENT") sufficient to pay the Escrow Charges (as hereinafter
defined) as they become due on an annual basis and in the amounts actually
payable. As used herein, "ESCROW CHARGES" shall mean real estate taxes on the
Leased Premises or payments in lieu thereof and premiums on any property and
general liability insurance required by this Lease. Landlord shall determine the
amount of the Escrow Charges and of each Escrow Payment. If the Escrow Payments
are held by Lender, the Escrow Payments may be commingled with other funds of
Lender. If the Escrow Payments are held by Landlord, the Escrow Payments shall
not be commingled with other funds of Landlord, shall be invested and interest
thereon shall accrue to the benefit of Tenant. Landlord shall apply the Escrow
Payments to the payment of the Escrow Charges in such order or priority as
Landlord shall determine or as required by law. If at any time the
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Violation exists in violation of Law or if Landlord is required to conduct a
Site Assessment by any governmental agency or in order to monitor an existing
Environmental Violation. Provided that no Monetary Event of Default shall have
occurred and be continuing, Tenant shall have the right to consent to the
selection of the Site Reviewers, which consent shall not be unreasonably
withheld or delayed. If a Monetary Event of Default exists, Tenant shall not
have any right to consent to the selection of the site Reviewers so long as the
Site Reviewers shall be a nationally recognized firm of licensed engineers with
an office in San Diego County, experienced in handling environmental matters in
such county and who specialize in (i) conducting environmental site assessments
to determine whether specific properties are in compliance with Environmental
Laws and (ii) formulating, implementing and managing the remediation of the
discharge or release of Hazardous Substances.
(d) If an Environmental Violation occurs or is found to exist and, in
Landlords reasonable judgment, the cost of remediation of the same is likely to
exceed $500,000, Tenant shall provide to Landlord, within ten (10) days after
Landlord's request therefor, reasonable financial assurances that Tenant will
effect such remediation in accordance with applicable Environmental Laws. Such
financial assurances shall not exceed the financial assurances that would be
required by an applicable governmental agency.
(e) Notwithstanding any other provision of this Lease, if an
Environmental Violation occurs or is found to exist and the Term would otherwise
terminate or expire, then, at the option of Landlord, the Term shall be
automatically extended beyond the date of termination or expiration and this
Lease shall remain in full force and effect beyond such date until the earlier
to occur of (i) the completion of all remedial action in accordance with
applicable Environmental Laws or (ii) the date specified in a written notice
from Landlord to Tenant terminating this Lease.
(f) Tenant shall notify Landlord immediately after becoming aware of
any Environmental Violation (or receipt of formal notice of any alleged
Environmental Violation) or noncompliance with any of the covenants contained in
this Paragraph 10 and shall forward to Landlord immediately upon receipt thereof
copies of all orders, reports, notices, permits, applications or other
communications relating to any such violation or noncompliance.
(g) All future leases, subleases or concession agreements relating to
the Leased Premises entered into by Tenant shall require the other Person
thereto to comply with all Environmental Laws with respect to its use and
occupancy of the Leased Premises.
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preservation and safety of the Leased Premises. Tenant shall promptly make all
Alterations of every kind and nature, whether foreseen or unforeseen, which may
be required to comply with the foregoing requirements of this Paragraph 12(a).
Landlord shall not be required to make any Alteration, whether foreseen or
unforeseen, or to maintain any of the Leased Premises or Adjoining Property in
any way, and Tenant hereby expressly waives any right which may be provided for
in any Law now or hereafter in effect to make Alterations at the expense of
Landlord or to require Landlord to make Alterations. Any Alteration made by
Tenant pursuant to this Paragraph 12 shall be made in conformity with the
provisions of Paragraph 13.
(b) Except for Permitted Encroachments, if any Improvement, now or
hereafter constructed, shall (i) encroach upon any setback or any property,
street or right-of-way adjoining the Leased Premises, (ii) violate the
provisions of any restrictive covenant affecting the Leased Premises, (iii)
hinder or obstruct any easement or right-of-way to which any of the Leased
Premises is subject or (iv) impair the rights of others in, to or under any of
the foregoing, Tenant shall, promptly after receiving notice or otherwise
acquiring knowledge thereof, either (A) obtain from all necessary parties
waivers or settlements of all claims, liabilities and damages resulting from
each such encroachment, violation, hindrance, obstruction or impairment, whether
the same shall affect Landlord, Tenant or both, or (B) take such action as shall
be necessary to remove all such encroachments, hindrances or obstructions and to
end all such violations or impairments, including, if necessary, making
Alterations.
13. ALTERATIONS AND IMPROVEMENTS.
(a) In addition to Alterations required by Paragraphs 12 and 17
Tenant shall have the right, without having to obtain the prior written consent
of Landlord and Lender, to (i) make any Alterations to the Structures for a cost
of not more than [INTENTIONALLY OMITTED] in any one instance, or (ii) install
Building Systems Equipment in the Structures or accessions to the Building
Systems Equipment the cost of which as to such Building Systems Equipment or
series of related Building Systems Equipment, does not exceed [INTENTIONALLY
OMITTED]. The consent of Landlord and Lender shall be required (A) if a Monetary
Event of Default exists, or (B) if the Alterations (or a series of related
Alterations) exceeds [INTENTIONALLY OMITTED], or (C) if Tenant desires to remove
and not upgrade or replace during the Term any Tenant Improvements which had an
initial cost in the aggregate in excess of [INTENTIONALLY OMITTED], or (D) if
Tenant desires to construct upon the Land any additional Improvements, provided
that, with respect to (C) and (D) above, such consent shall not be unreasonably
withheld or delayed. In any event, the consent of Landlord and Lender will not
be withheld on the basis of the type of Alterations (I.E., laboratory or office
space) to be constructed.
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14. PERMITTED CONTESTS.
(a) Notwithstanding any other provision of this Lease, Tenant shall
not be required to (a) pay any Imposition, (b) comply with any Legal
Requirement, (c) discharge or remove any lien referred to any Paragraph of this
Lease except Paragraph 21 or (d) take any action with respect to any
encroachment, violation, hindrance, obstruction or impairment referred to in
Paragraph 12(b) (such non-compliance with the terms hereof being hereinafter
referred to collectively as "PERMITTED VIOLATIONS"), so long as at the time of
such contest no Monetary Event of Default or Covenant Event of Default exists
and so long an Tenant shall contest, in good faith, the existence, amount or
validity thereof, the amount of the damages caused thereby, or the extent of its
or Landlord's liability therefor by appropriate proceedings which shall operate
during the pendency thereof to prevent or stay (i) the collection of, or other
realization upon, the Permitted Violation so contested, (ii) the sale,
forfeiture or loss of any of the Leased Premixes or any Rent to satisfy or to
pay any damages caused by any Permitted Violation, (iii) any interference with
the use or occupancy of any of the Leased Premises, (iv) any interference with
the payment of any Rent, (v) the cancellation or increase in the rate of any
insurance policy or a statement by the carrier that coverage will be denied or
(vi) the enforcement or execution of any injunction, order or Legal Requirement
with respect to the Permitted Violation.
(b) Tenant shall provide Landlord security which is satisfactory, in
Landlord's reasonable judgment, to assure that such Permitted Violation is
corrected, including all Costs, interest and penalties that may be incurred or
become due in connection therewith. If such security it in the form of a cash
deposit, interest thereon shall accrue for the benefit of Tenant, and Landlord
shall not commingle any such cash security provided by Tenant with other funds
of Landlord. While any proceedings which comply with the requirements of this
Paragraph 14 are pending and the required security is held by Landlord, Landlord
shall not have the right to correct any Permitted Violation thereby being
contested unless Landlord is required by law to correct such Permitted Violation
and Tenants contest does not prevent or stay such requirement as to Landlord.
Each such contest shall be promptly and diligently prosecuted by Tenant to a
final conclusion, except that Tenant, so long as the conditions of this
Paragraph 14 are at all times complied with, shall have the right to attempt to
settle or compromise such contest through negotiations. Tenant shall pay any and
all losses, judgments, decrees and Costs in connection with any such contest and
shall, promptly after the final determination of such contest, fully pay and
discharge the amounts which shall be levied, assessed, charged or imposed or be
determined to be payable therein or in connection therewith, together with all
penalties, fines, interest and Costs thereof or in connection
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prompt notice of any such claim and Tenant is prejudiced as a result of
Indemnitee's delay, Tenant shall not be obligated to indemnify Indemnitee to the
extent Tenant is thereby prejudiced. Upon receipt of notice from any Indemnitee,
Tenant shall, subject to the preceding sentence, resist or defend such action or
proceeding by retaining counsel reasonably satisfactory to such Indemnitee, and
such Indemnitee will cooperate and assist in the defense of such action or
proceeding it reasonably requested so to do by Tenant. Any Indemnitee may
retain separate counsel to represent Indemnitee, but only at such Indemnitee's
sole cost and expense.
(c) The obligations of Tenant under this Paragraph 15 shall survive
any termination or expiration of this Lease.
16. INSURANCE.
(a) Tenant shall maintain the following insurance on or in connection
with the Leased Premises:
(i) Insurance against physical loss or damage to the
Improvements as provided under a standard "All Risk" property policy including
but not limited to flood (if the Leased Premises are in a flood zone) and
earthquake coverage. The amount of coverage shall not be less than the actual
replacement cost of the Improvements, except for the Flood and Earthquake
insurance which shall be provided with limits of $5,000,000 and $10,000,000
respectively. Such policies shall contain deductibles of not more than $100,000,
except for Flood and Earthquake Insurance which shall have the customary
deductibles reasonably available for such properties.
(ii) Commercial General Liability Insurance against claims for
personal and bodily injury, death or property damage occurring on, in or as A
result of the use of the Leased Premises, in an amount not less than $10,000,000
per occurrence/annual aggregate, including but not limited to Garagekeepers
Liability, Host Liquor Liability, and all other coverage extensions that are
usual and customary for properties of this size and type.
(iii) Worker's Compensation Insurance covering all of the Tenants
employees for claims for death, disease or bodily injury that may be asserted
against Tenant. In lieu of such Worker's Compensation Insurance, a program of
self-insurance complying with the rules, regulations and requirements of the
appropriate agency of the State.
(iv) Comprehensive Boiler and Machinery Insurance including but
not limited to Service Interruption, Expediting Expenses, Ammonia Contamination
in an amount not less than $5,000,000 for damage to property resulting from such
covered perils as found in a standard Comprehensive Boiler and Machinery
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proceeds are received by Landlord and Debt Rent received by Lender on behalf of
Landlord. Each insurance policy referred to in clauses (i), (iv), (v) and (vi)
of Paragraph 16(a) shall contain standard non-contributory mortgagee clauses in
favor of and acceptable to Lender. Each policy required by any provision of
Paragraph 16(a), except clause (iii) thereof, shall provide that it may not be
canceled except after thirty (30) days' prior notice to Landlord and Lender.
Each such policy shall also provide that any loss otherwise payable thereunder
shall be payable notwithstanding (i) any act or omission of the Landlord or
Tenant which might, absent such provision, result in a forfeiture of all or a
part of such insurance payment, (ii) the occupation or use of any of the Leased
Premises for purposes more hazardous than those permitted by the provisions of
such policy, (iii) any foreclosure or other action or proceeding taken by Lender
pursuant to any provision of the Mortgage, Note, Assignment by Landlord or other
document evidencing or securing the Loan upon the happening of an event of
default therein or (iv) any change in title to or ownership of any of the Leased
Premises.
(d) Tenant shall pay as they become due all premiums for the
insurance required by Paragraph 16(a), shall renew or replace each policy and
deliver to Landlord and Lender evidence of the payment of the full premium
therefor or installment then due at least thirty (30) days prior to the
expiration date of such policy, and Tenant shall deliver evidence of insurance
acceptable to Landlord and Lender or, if requested by Landlord or Lender,
certified copies of all policies required within thirty (30) days prior to the
expiration date of such policy.
(e) Anything in this Paragraph 16 to the contrary notwithstanding,
any insurance which Tenant is required to obtain pursuant to Paragraph 16(a) may
be carried under a "blanket" or umbrella policy or policies covering other
properties or liabilities of Tenant. The amount of the total insurance
allocated to the Leased Premises, which amount shall be not less than the
amounts required pursuant to this Paragraph 16, shall be specified either (i) in
each such "blanket" or umbrella policy or (ii) in a written statement, which
Tenant shall deliver to Landlord, from the insurer thereunder.
(f) Tenant shall promptly comply with and conform to (i) all
provisions of each insurance policy required by this Paragraph 16 and (ii) all
requirements of the insurers thereunder applicable to any of the Leased Premises
or to the use, manner of use, occupancy, possession, operation, maintenance,
alteration or repair of any of the Leased Premises, even if such compliance
necessitates Alterations or results in interference with the use or enjoyment of
any of the Leased Premises.
(g) Tenant shall not carry separate insurance concurrent in form or
contributing in the event of a Casualty
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all such claims equal to or in excess of Fifty Thousand Dollars ($50,000), and
Landlord and Lender shall have the right to join with Tenant therein. Any
adjustment, settlement or compromise of any such claim equal to or in excess of
Fifty Thousand Dollars ($50,000) shall be subject to the prior written approval
of Landlord and Lender, and Landlord and Lender shall have the right to
prosecute or contest, or to require Tenant to prosecute or contest, any such
claim, adjustment, settlement or compromise. Each insurer is hereby authorized
and directed to make payment under said policies in excess of Fifty Thousand
Dollars ($50,000), directly to Landlord or, If required by the Mortgage, to
Lender Instead of to Landlord and Tenant jointly. Tenant hereby appoints each of
Landlord and Lender as Tenant's attorneys-in-fact to endorse any draft for
payments to be made to Landlord and/or Lender. Any payment of a Net Award of
Fifty Thousand Dollars ($50,000) or less shall be paid directly to Tenant by the
insurance company.
(c) Tenant, immediately upon receiving a Condemnation Notice, shall
notify Landlord and Lender thereof. If Landlord receives a Condemnation Notice,
Landlord shall give Tenant and Lender prompt notice thereof. Except as
specifically provided in the following sentence, Landlord and Lender are
authorized to collect, settle and compromise, in their discretion (and, if no
Monetary Event of Default exists, upon notice to Tenant), the amount of any Net
Award. Provided that no Monetary Event of Default has occurred and is
continuing, Tenant shall be entitled to participate with Landlord and Lender in
any Condemnation proceeding or negotiations under threat thereof and to contest
the Condemnation or the amount of the Net Award therefor. No agreement with any
condemner in settlement or under threat of any Condemnation shall be made by
Tenant without the written consent of Landlord and Lender. Subject to the
provisions of this Paragraph 17(c), Tenant hereby irrevocably assigns to
Landlord any award or payment to which Tenant is or may be entitled by reason of
any Condemnation, whether the same shall be paid or payable for Tenant's
leasehold interest hereunder or otherwise. Nothing in this Lease shall, however,
impair Tenant's right to any award or payment on account of Tenant's Equipment,
moving expenses or loss of business, if available, to the extent that and so
long as (i) Tenant shall have the right to make, and does make, a separate claim
therefor against the condemner and (ii) such claim does not in any way reduce
either the amount of the award otherwise payable to Landlord for the
Condemnation of Landlord's fee interest in the Leased Premises or the amount of
the award (if any) otherwise payable for the Condemnation of Tenant's leasehold
interest hereunder.
(d) If any Partial Casualty (whether or not insured against) or
Partial Condemnation shall occur, this Lease shall continue, notwithstanding
such event, and there shall be no abatement or reduction of any Monetary
Obligations, except as provided in Paragraph 17(e) and 19(c). Promptly after
such Partial Casualty or Partial Condemnation, Tenant, as required in
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(b) An Early Termination Notice shall contain (i) notice of Tenant's
intention to terminate this Lease on the first Basic Rent Payment Date (the
"EARLY TERMINATION DATE") which occurs at least sixty (60) days after the date
of receipt ("NOTICE RECEIPT DATE") by Landlord of the Early Termination Notice,
(ii) a binding and irrevocable offer of Tenant to pay the Early Termination
Amount and (iii) if the Early Termination Event is an event described in
Paragraph 18(a)(ii), the certification and covenants described in the foregoing
Paragraph 18(a) and a certified resolution of the Board of Directors of Tenant
authorizing the same (unless Tenant elects to pay an Early Termination Amount
equal to [INTENTIONALLY OMITTED].
(c) If Landlord shall reject such offer to terminate this Lease by
written notice to Tenant (a "REJECTION"), which Rejection shall contain the
written consent of Lender, not later than forty-five (45) days following the
Notice Receipt Date, then this Lease shall terminate as of the Early Termination
Date; provided, however, that, if Tenant has not satisfied all Monetary
Obligations and all other obligations and liabilities under this Lease which
have arisen on or prior to the Early Termination Date (collectively, "REMAINING
OBLIGATIONS") on the Early Termination Date, then Landlord may, at its option,
extend the date on which this Lease may terminate to a date which is no later
than the first Basic Rent Payment Date after the Early Termination Date on which
Tenant has satisfied all Remaining Obligations. Upon such termination (i) all
obligations of Tenant hereunder shall terminate except for any Surviving
Obligations, (ii) Tenant shall immediately vacate and shall have no further
right, title or interest in or to any of the Leased Premises and (iii) the Net
Award shall be retained by Landlord. Notwithstanding anything to the contrary
hereinabove contained, if Tenant shall have received a Rejection and, on the
date when this Lease would otherwise terminate as provided above, Landlord shall
not have received the full amount of the Net Award payable by reason of the
applicable Early Termination Event due to any action by Tenant, then the date on
which this Lease is to terminate automatically shall be extended to the first
Basic Rent Payment Date after the receipt by Landlord of the full amount of the
Net Award; provided, however, that, if Tenant has not satisfied all Remaining
Obligations on such date, then Landlord may, at its option, extend the date on
which this Lease may terminate to a date which is no later than the first Basic
Rent Payment Date after such date on which Tenant has satisfied all such
Remaining Obligations.
(d) Unless Tenant shall have received a Rejection not later than the
forty-fifth (45th) day following the Notice Receipt Date, Landlord shall be
conclusively presumed to have accepted such offer. If such offer is accepted by
Landlord then, on the Early Termination Date, Tenant shall pay to Landlord the
Early Termination Amount and all Remaining Obligations and, if requested by
Tenant, Landlord and Lender shall (i) convey to Tenant the Leased Premises or
the remaining
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(v) the Restoration Fund shall be held in separate account and
invested in any of the following investments and for such maturities as Landlord
and Tenant shall agree: obligations of the United States, its agencies, or
United States Government sponsored enterprises or obligations, the principal of
and interest on which are guaranteed by the United States or its agencies or
obligations of a state, a territory, or a possession of the United States, or
any political subdivision of any of the foregoing or of the District of
Columbia, which investment shall be graded in the highest three (3) mayor grades
as determined by at least one (1) national rating service, or banker's
acceptances, commercial accounts, certificates of deposit, or depository
receipts issued by a bank, trust company, savings and loan association, savings
bank, credit union or other financial institution whose deposits are, as
appropriate, insured be the Federal Deposit Insurance Corporation or the
National Credit Union Administration or any successor entity, which investment
shall be rated at the time of purchase within the two (2) highest
classifications established by at least one (1) national rating service, and
which matures within one hundred eighty (180) days; and
(vi) such other reasonable conditions as Landlord or Lender may
impose.
(b) Prior to commencement of restoration and at any time during
restoration, if the estimated cost of completing the restoration work free and
clear of all liens, as determined by Landlord, exceeds the amount of the Net
Award available for such restoration, the Tenant shall provide to Landlord and
Lender assurances reasonably satisfactory to Landlord and Lender of the
availability of funds necessary to complete such restoration work. Any sums
deposited by Tenant in the Restoration Fund which remain in the Restoration Fund
upon completion of restoration shall be refunded to Tenant. For purposes of
determining the source of funds with respect to the disposition of funds
remaining after the completion of restoration, the Net Award shall be deemed to
be disbursed prior to any amount added by Tenant.
(c) If any sum remains in the Restoration Fund after completion of
the restoration and any refund to Tenant pursuant to Paragraph 19(b), such sum
(the "REMAINING SUM") shall be retained by Landlord or, if required by a Note or
Mortgage, paid by Landlord to a Lender. If the Remaining Sum is (i) retained by
Landlord, that portion of each installment of Basic Rent payable on or after the
Retention Date shall be reduced by the amount, if any, of the Remaining Sum not
required to be paid to Lender, or (ii) paid to Lender, then each installment of
Basic Rent thereafter payable shall be reduced in the same amount as payments
are reduced under any Note if the Loan corresponding to such Note is reamortized
to reflect such payment, in each case until such Remaining Sum has been applied
in full or until the Term has expired, whichever occurs first. Upon the
expiration
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(A) its credit history;
(B) its capital structure, net worth and unsecured senior debt
rating;
(C) its management and real estate management record;
(D) its operating history;
(E) its intended use of the Leased Premises; and
(F) other factors associated with the proposed assignee's
business as it relates to the use of the Leased Premises, including potential
environmental concerns and liabilities.
(ii) In exercising its right of approval under this Paragraph
21(c) with respect to a sublease which is not a Preapproved Sublet, Landlord
shall limit its consideration to whether or not the proposed sublessee, by
virtue of its business, is significantly more likely to expose the Leased
Premises to a higher risk of Environmental Violation than Tenant in Tenant's use
of the Leased Premises prior to the date of such subletting.
(d) Any Preapproved Assignee or other assignee under any assignment
to which Landlord has consented shall expressly assume all the obligations of
Tenant hereunder pursuant to a written instrument delivered to Tenant at the
time of such assignment. In addition, within ten (10) days after execution of
any assignment, Tenant shall deliver to Landlord and Lender a conformed copy
thereof.
(e) No sublease or assignment entered into in accordance with the
provisions of this Paragraph 21 shall or reduce any obligations of Tenant or
rights of Landlord hereunder, and all obligations of Tenant hereunder shall
continue in full effect as the obligations of a principal and not a guarantor or
surety, as though no subletting or assignment had been made.
(f) With respect to any Preapproved Assignment or Preapproved Sublet,
Tenant shall provide to Landlord information reasonably required by Landlord to
establish that any proposed Preapproved Assignment or Preapproved Sublet
satisfies the criteria set forth above, it being agreed that Tenant shall not be
obligated to disclose to Landlord any confidential or proprietary information.
(g) As of the date hereof, portions of the Structures are subject to
certain leases ("EXISTING LEASES") described in EXHIBIT "F". Tenant covenants
and agrees that it has provided
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writing the obligations of Landlord hereunder and Third Party Purchaser and
Landlord notify Tenant in writing of such transfers. At the request of
Landlord, Tenant will execute such documents confirming the agreement referred
to above and such other agreements as Landlord may reasonably request, provided
that such agreements do not increase the liabilities and obligations of Tenant
hereunder.
22. EVENTS OF DEFAULT.
(a) The occurrence of any one or more of the following (after expiration
of any applicable cure period as provided in Paragraph 22(c)) shall, at the sole
option of Landlord, constitute an "EVENT OF DEFAULT" under this Lease:
(i) Subject to the provisions of Paragraph 29(a), a failure by Tenant
to make any payment of any Monetary Obligation, regardless of the reason for
such failure;
(ii) Subject to the provisions of Paragraph 14, a failure by Tenant
duly to perform and observe, or a violation or breach of, any other provision
hereof in any material respect not otherwise specifically mentioned in this
Paragraph 22(a); provided, however, that any failure to provide the insurance
required by Paragraph 16 (except earthquake and flood insurance if such
coverages are not available in the Southern California area) or any uncured
Environmental Violation with respect to the Leased Premises shall be deemed to
be material;
(iii) any representation or warranty made by Tenant herein or in any
certificate, demand or request made pursuant hereto proves to be incorrect, now
or hereafter, in any material respect;
(iv) a default beyond any applicable cure period by Tenant in any
payment of principal or interest on any obligations for borrowed money having an
original principal balance of $10,000,000 or more in the aggregate, or in the
performance of any other provision contained in any instrument under which any
such obligation is created or secured (including the breach of any covenant
thereunder), if an effect of such default is to cause, or permit any Person to
cause, such obligation to become due prior to its stated maturity;
(v) a default by Tenant beyond any applicable cure period in the
payment of rent or any other monetary obligation under any other leases in the
United States with rental obligations over the terms thereof of $5,000,000 or
more in the aggregate;
(vi) a final, non-appealable judgment or judgments for the payment of
money in excess of $15,000,000 in the aggregate shall be rendered against Tenant
and the same
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(xv) an Event of Default (as defined in the Construction Management
Agreement) shall exist under the Construction Management Agreement beyond any
applicable cure period;
(xvi) Tenant shall fail to restore any amounts drawn under the Letter
of Credit within one hundred twenty (120) days following the date of such draw
or shall fail to deliver to Landlord any Letter of Credit required under
Paragraph 29 within the applicable time period specified therein; or
(xvii) The Initial Lender shall draw all of the Letter of Credit
following the occurrence of any of the events set forth in Paragraph 37(a)(i),
(ii), (iii), (iv) or (v).
(b) No notice or cure period shall be required in any one or more of
the following events:
(A) the occurrence of an Event of Default under clause (i)
(except as otherwise set forth below), (iii), (iv), (v), (vi), (vii), (viii),
(ix), (x), (xi), (xii), (xiii), (xiv), (xv), (xvi) or (xvii) of Paragraph 22(a);
or
(B) the default consists of a failure to provide any insurance
required by Paragraph 16 except for the failure to provide earthquake or flood
insurance if the same is not available or an assignment or sublease entered into
in violation of Paragraph 21; or
(C) the default is such that any delay in the exercise of a
remedy by Landlord would reasonably be expected to cause irreparable harm to
Landlord.
(c) If the default consists of the failure to pay any Monetary
Obligation under clause (i) of Paragraph 22(a), the applicable cure period shall
be five (5) Business Days from the date on which notice is given, but Landlord
shall not be obligated to give notice of, or allow any cure period for, any such
default more than twice during the Term. Subject to the limitation set forth in
the following sentence, if the default consists of a default under clause (ii)
of Paragraph 22 (a), other than the events specified in clauses (B) and (C) of
Paragraph 22(b), the applicable cure period shall be thirty (30) days from the
date on which notice is given or, if the default cannot be cured within such
thirty (30) day period and delay in the exercise of a remedy would not (in
Landlord's reasonable judgment) cause any material adverse harm to Landlord or
any of the Leased Premises, the cure period shall be extended for the period
required to cure the default (but such cure period, including any extension,
shall not in the aggregate exceed sixty (60) days, provided that Tenant shall
commence to cure the default within the said thirty-day period and shall
actively, diligently and in good faith proceed with and continue the curing of
such default. Notwithstanding anything in this
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rent as it becomes due under this Lease. Acts of maintenance or preservation or
efforts to relet the Leased Premises or the appointment of a receiver upon
initiative of Landlord to protect Landlord's interest under this Lease shall not
constitute a termination of Tenant's right to possession.
(d) If Landlord elects, pursuant to Paragraph 23(b), to terminate
this Lease upon a default by Tenant, Landlord may collect from Tenant damages
computed in accordance with the following provisions in addition to Landlord's
other remedies under this Lease:
(i) the worth at the time of award of any unpaid Rent which has
been earned at the time of such termination; plus
(ii) the worth at the time of award of the amount by which any
unpaid Rent which would have been earned after termination until the time of
award exceeds the amount of such rental loss that Tenant proves could have been
reasonably avoided; plus
(iii) the worth at the time of award of the amount by which the
unpaid Rent for the balance of the Term after the time of award exceeds the
amount of such rental loss that Tenant proves could be reasonably avoided, plus
(iv) any other Cost necessary to compensate Landlord for all the
detriment proximately caused by Tenant's failure to perform its obligations
under this Lease or which in the ordinary course of things would be likely to
result therefrom including, without limitation, brokerage commissions, the cost
of repairing and reletting the Leased Premises and reasonable attorneys' fees;
plus
(v) at Landlord's election, such other amounts in addition to or
in lieu of the foregoing as may be permitted from time to time by applicable
state law. Damages shall be due and payable from the date of termination.
For the purposes of clauses (i) and (ii) of this paragraph, the "worth
at the time of awards shall be computed by adding interest at the Default Rate
(as specified in Paragraph 7(a)(iv)) to the past due Rent, For the purposes of
clause (iii) of this Paragraph 23(d), the "worth at the time of award" shall be
computed by discounting such amount at the discount rate of the Federal Reserve
Bank of San Francisco at the time of the award, plus one percent (1%).
(e) If, in the Event of a Default by Tenant, Landlord elects to keep
the Lease in effect, Landlord may, to the extent permitted by applicable Law,
declare by notice to Tenant the entire Basic Rent (in the amount of Basic Rent
then in effect) for the remainder of the then current Term to be immediately due
and payable. Tenant shall immediately pay to Landlord all such
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(i) Landlord shall not be required mitigate any of its damages
hereunder unless required to by applicable Law. If any Law shall validly limit
the amount of any damages provided for herein to an amount which is less than
the amount agreed to herein, Landlord shall be entitled to the maximum amount
available under such Law.
(j) No termination of this Lease, repossession or reletting of the
Leased Premises, exercise of any remedy or collection of any damages pursuant to
this Paragraph 23 shall relieve Tenant of any Surviving Obligations.
(k) WITH RESPECT TO ANY REMEDY OR PROCEEDING OF LANDLORD HEREUNDER,
TENANT WAIVES ANY RIGHT TO A TRIAL BY JURY.
(l) Upon the occurrence of any Event of Default, Landlord shall have
the right (but no obligation) to perform any act required of Tenant hereunder
and, if performance of such act requires that Landlord enter the Leased
Premises, Landlord may enter the Leased Premises for such purpose.
(m) No failure of Landlord (i) to insist at any time upon the strict
performance of any provision of this Lease or (ii) to exercise any option,
right, power or remedy contained in this Lease shall be construed as a waiver,
modification or relinquishment thereof. A receipt by Landlord of any sum in
satisfaction of any Monetary Obligation with knowledge of the breach of any
provision hereof shall not be deemed waiver of such breach, and no waiver by
Landlord of any provision hereof shall be deemed to have been made unless
expressed in a writing signed by Landlord.
(n) Tenant hereby waives and surrenders, for itself and all those
claiming under it, including creditors of all kinds, (i) any right and privilege
which it or any of them may have under any present or future Law to redeem any
of the Leased Premises or to have a continuance of this Lease after termination
of this Lease or of Tenant's right of occupancy or possession pursuant to any
court order or any provision hereof, and (ii) the benefits of any present or
future Law which exempts property from liability for debt or for distress for
rent.
(o) Except as otherwise provided herein, all remedies are cumulative
and concurrent and no remedy is exclusive of any other remedy. Each remedy may
be exercised at any time an Event of Default has occurred and is continuing and
may be exercised from time to time. No remedy shall be exhausted by any exercise
thereof.
24. NOTICES. All notices, demands, requests, consents, approvals, offers,
statements and other instruments or communications required or permitted to be
given pursuant to the provisions of this Lease shall be in writing and shall be
deemed to have been given for all purposes when delivered in person or
-45-
any damage caused by such removal. Property of Tenant or such third party not so
removed shall become the property of Landlord, and Landlord may thereafter cause
such property to be removed from the Leased Premises, The cost of removing and
disposing of such property and repairing any damage to any of the Leased
Premises caused by such removal shall be paid by Tenant to Landlord upon demand.
Landlord shall not in any manner or to any extent be obligated to reimburse
Tenant for any such property which becomes the property of Landlord pursuant to
this Paragraph 26.
27. NO MERGER OF TITLE. There shall be no merger of the leasehold estate
created by this Lease with the fee estate in any of the Leased Premises by
reason of the fact that the same Person may acquire or hold or own, directly or
indirectly, (a) the leasehold estate created hereby or any part thereof or
interest therein and (b) the fee estate in any of the Leased Premises or any
part thereof or interest therein, unless and until all Persons having any
interest in the interests described in clauses (a) and (b) above which are
sought to be merged shall join in a written instrument effecting such merger and
shall duly record the same.
26. BOOKS AND RECORDS. Tenant shall furnish Landlord with the following:
(i) An soon as available and in any event within sixty (60) days after
the end of each quarterly accounting period in each fiscal year of Tenant (with
the exception of the last quarter), Tenant shall furnish copies of a
consolidated balance sheet of Tenant and its consolidated affiliates as of the
last day of such quarterly accounting period, and copies of the related
consolidated statements of income and of changes in shareholders' equity and in
financial position of Tenant and its consolidated affiliates for such quarterly
accounting period and for the elapsed portion of the current fiscal year ended
with the last day of such quarterly accounting period. All such statements shall
be prepared in accordance with GAAP (except that interim quarterly financials
are not required to include notes) and, if Tenant ceases to be a publicly traded
company, certified as complete and correct in all material respects by the chief
financial officer of Tenant (subject to year-end audit adjustments).
(ii) As soon as available and in any event within one hundred twenty
(120) days after the end of each fiscal year of Tenant, Tenant shall furnish
copies of a consolidated balance sheet of Tenant and its consolidated Affiliates
as of the end of such fiscal year, and copies of the related consolidated
statements of income and of changes in shareholders' equity and in financial
position of Tenant and its consolidated affiliates for such fiscal year. All
such statements shall be in reasonable detail and with appropriate notes, if
any, and be prepared in accordance with GAAP and state in comparative form
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payment by Tenant of the Rent and all other charges or payments to be paid
hereunder and the performance of the covenants and obligations contained herein,
and the Letter of Credit shall be renewed at least thirty (30) days prior to any
expiration thereof. In addition to its other rights and remedies under the
Letter of Credit, Landlord shall have the right to draw on the Letter of Credit
to pay any installment of Basic Rent not paid within three (3) Business Days
after the due date thereof, and, with respect to the first three (3) (but in no
event more than three (3)) such draws so long as the Letter of Credit remains in
effect and Tenant replenishes any amount drawn under the Letter of Credit within
one hundred twenty (120) days (but in any event at least thirty (30) days prior
to the expiration thereof) after such draw no Event of Default shall exist by
reason of any such draw.
[THE REMAINDER OF THIS PARAGRAPH INTENTIONALLY OMITTED]. 30. NON-RECOURSE AS TO
LANDLORD.
(a) Anything contained herein to the contrary notwithstanding, any
claim based on or in respect of any liability of Landlord under this Lease shall
be enforced only against the Leased Premises and not against any other assets,
properties or funds of (a) Landlord or any party thereof, (b) any director,
officer, general partner, shareholder, limited partner, employee or agent of
Landlord or any general partner of Landlord, XXXX:11 or XXXX:12 or any of its
general partners (or any legal representative, heir, estate, successor or assign
of any thereof), (c) any predecessor or successor partnership or corporation (or
other entity) of Landlord or any of its general partners, shareholders,
officers, directors, employees or agents, either directly or through Landlord or
its general partners, shareholders, officers, directors, employees or agents or
any predecessor or successor partnership or corporation (or other entity), or
(d) any other Person (including Xxxxx Property Advisors, Xxxxx Fiduciary
Advisors, Inc., W. P. Xxxxx & Co. Inc., and any Person affiliated with any of
the foregoing, or any director, officer, employee or agent of any thereof);
provided, however, that Landlord shall at all times maintain an "EQUITY
INTEREST" (as defined below) in the Leased Premises of at least the lesser of
(1) twenty percent (20%) of the Fair Market Value of the Leased Premises or (2)
Landlord's Cash Contribution ("LANDLORD'S MINIMUM EQUITY"). If Landlord fails to
maintain Landlord's Minimum Equity, the provisions of this Paragraph 30 limiting
Tenant's right to recover damages from the Leased Premises as provided above
shall cease to be of any force or effect and Tenant shall have the right to
recover damages from any and all assets of Landlord. The term "EQUITY INTERESTS"
shall mean the difference between the Fair Market Value of the Leased Premises
and the then outstanding principal amount of all Mortgages placed on the Leased
Premises by Landlord. For purposes of this definition of Equity Interest, during
the first five (5) years of the Term the Fair Market Value of the Leased
Premises shall be equal to the Project Cost. In the event that
-49-
32. SUBORDINATION. Subject to the provisions of Paragraph 31(a), this
Lease and Tenant's interest hereunder shall be subordinate to any Mortgage or
other security instrument hereafter placed upon the Leased Premises by Landlord,
and to any and all advances made or to be made thereunder, to the interest
thereon, and all renewals, replacements and extensions thereof, provided that
the holder of any such Mortgage or other security instrument enters into a
subordination, non-disturbance and attornment agreement with and reasonably
satisfactory to Tenant which recognizes this Lease and all Tenant's rights
hereunder unless and until (i) an Event of Default exists or (ii) Landlord shall
have the right to terminate this Lease pursuant to any applicable provision
hereof.
33. FINANCIAL COVENANTS. [INTENTIONALLY OMITTED].
34. TAX TREATMENT REPORTING. Landlord and Tenant each acknowledge
that each shall treat this transaction as true lease for state law purposes and
shall report this transaction as a true lease for Federal income tax purposes.
For Federal income tax purposes each shall report this Lease with Landlord as
the owner of the Leased Premises, including the Building Systems Equipment, and
Tenant as the lessee of the Leased Premises and Building Systems Equipment,
including: (1) treating Landlord as the owner of the property eligible to claim
depreciation deductions under Section 167 or 168 of the Internal Revenue Code of
1986 (the "CODE") with respect to the Leased Premises and the Building Systems
Equipment, (2) Tenant reporting its Rent payments as rent expense under Section
162 of the Code, and (3) Landlord reporting the Rent payments as rental income.
35. RIGHT OF FIRST REFUSAL. [INTENTIONALLY OMITTED].
36. FINANCING MAJOR ALTERATIONS. [INTENTIONALLY OMITTED].
37. INITIAL LENDER RIGHTS RE: LETTER OF CREDIT. [INTENTIONALLY
OMITTED].
38. MISCELLANEOUS.
(a) The paragraph headings in this Lease are used only for
convenience of reference and are not part of this Lease or to be used in
determining the intent of the parties or otherwise interpreting this Lease.
(b) As used in this Lease, the singular shall include the plural and
any gender shall include all genders as the context requires and the following
words and phrases shall have the following meanings: (i) "including" shall mean
"including without limitation"; (ii) "provisions" shall mean "provisions, terms,
agreements, covenants and/or conditions"; (iii) "lien"
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successors and assigns. If there is more than one Tenant, the obligations of
each shall be joint and several.
(h) If any one or more of the provisions contained in this Lease
shall for any reason be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any
other provision of this Lease, but this Lease shall be construed as if such
invalid, illegal or unenforceable provision had never been contained herein.
(i) This Lease shall be governed by and construed and enforced in
accordance with the Laws of the State.
IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be
duly executed under seal as of the day and year first above written.
LANDLORD:
XXXX PROPERTY COMPANY, a
California partnership
ATTEST: By: XXXX (CA) QRS 11-25, INC.,
a general partner
By: By:
---------------------------- -------------------------------
Title: Assistant Secretary Title: Executive Vice President
[Corporate Seal]
ATTEST: By: XXXX (CA) QRS 12-1, INC.,
a general partner
By: By:
---------------------------- -------------------------------
Title: Assistant Secretary Title: Executive Vice President
[Corporate Seal]
TENANT:
ATTEST: GENSIA, INC.,
a Delaware corporation
By: By:
---------------------------- -------------------------------
Title: Vice President Title: President
-53-
EXHIBIT A
LEGAL DESCRIPTION OF LAND
The Land is located In the City of Son Diego, County of San Diego, State of
California and is more particularly described as follows:
PARCEL A:
LOTS 1 AND 3 OF NEXUS TECHNOLOGY CENTRE UNIT NO. 1, IN THE CITY OF SAN DIEGO,
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 11876,
FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, AUGUST 7, 1987.
PARCEL B:
NON-EXCLUSIVE EASEMENTS FOR VEHICULAR AND PEDESTRIAN INGRESS AND EGRESS ON AND
OVER DESIGNATED PEDESTRIAN AND VEHICULAR TRAFFIC CIRCULATION PATTERNS NOW
EXISTING OR CREATED, INCLUDING WITHOUT LIMITATIONS, ALL DRIVEWAYS, ROAD,
STREETS, WALKWAYS, SIDEWALKS AND SURFACE PARTING AREAS; FOR PARKING ON AND
ACROSS ALL SURFACE PARKING AREAS DESIGNATED FOR PARKING BY STRIPPING OR OTHER
MEANS; FOR PRIVATE AND COMMON UTILITIES AND INCIDENTAL THERETO; AND TEMPORARY
EASEMENTS FOR CONSTRUCTION PURPOSES, AS SET FORTH, DESCRIBED, CREATED AND
CONVEYED IN THAT CERTAIN DOCUMENT ENTITLED "RECIPROCAL EASEMENT AGREEMENT" BY
AND BETWEEN GENSIA, INC., A DELAWARE CORPORATION AND XXXX PROPERTY COMPANY, A
CALIFORNIA GENERAL PARTNERSHIP, RECORDED ON DECEMBER __, 1993 AS INSTRUMENT NO.
___________________, IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY,
CALIFORNIA.
A-1
EXHIBIT C
SCHEDULE OF PERMITTED ENCUMBRANCE
C-1
EXHIBIT E
TENANT'S FINANCIAL COVENANTS
[INTENTION OMITTED]
E-1
EXHIBIT G
[Form of Letter of Credit]
[INTENTIONALLY OMITTED]
G-1
Rent under the Lease has been paid for more than thirty (30) days in advance of
its due date.
10. To the best of the knowledge of the undersigned, based on reasonable
injury, Tenant has no defense as to its obligations under the Lease and claims
no set-off or counterclaim against Landlord.
11. To the best knowledge of the undersigned, there are no defaults on the
part of Landlord or Tenant under the Lease, and there are no events currently
existing (or with the passage of time, giving of notice or both, which would
exist) which give Tenant the right to cancel or terminate the Lease.
12. Tenant has no right to any concession (rental or otherwise) or similar
compensation in connection with renting the space it occupies, except as
provided in the Lease.
13. There are no actions, whether voluntary or otherwise, pending against
the undersigned or any guarantor of the undersigned's obligations under the
Lease pursuant to the bankruptcy or insolvency laws of the United States or any
state thereof.
14. It is Tenant's understanding that the present Landlord of the Premises
is __________________________________________
____________________________.
15. Tenant Is address for notices under the terms of the
Lease is: _________________________________________________
________________________________________________________.
16. Tenant hereby acknowledges that Lender intends to make a loan to
Landlord for _______________________________________, that Landlord intends to
assign the Lease to Lender in connection with such financing, and that Lender is
relying upon the representations herein made in funding such loan. Upon such
assignment and upon written request from Lender, Tenant agrees to send all
rents, payments and other amounts due under the Lease and assigned to Lender
pursuant to said financing to such address as may be indicated in writing by
Lender to Tenant. Tenant agrees that no modification, adjustment, revision,
cancellation or renewal of the Lease or amendments thereto shall be effective
unless the written consent of Lender is obtained. Tenant has not received any
notice of any other sale, pledge, transfer or assignment of the Lease or of the
rentals thereunder by Landlord.
17. Tenant shall deliver to Lender a copy of all notices of default or
termination served on or received from Landlord.
18. Lender is hereby given the right to cure Landlord's defaults under the
Lease within thirty (30) days, after receipt of written notice by the
undersigned of Landlords failure so to
X-0
XXXXXXX "X"
DEMISING PLAN
[To Be Attached]
[DIAGRAM]
AMENDMENT NO. 1 TO SUBLEASE AGREEMENT
AND FURNITURE RENTAL AGREEMENT
This AMENDMENT NO. 1 TO SUBLEASE AGREEMENT AND FURNITURE RENTAL AGREEMENT
(this "Amendment") is made as of October 31, 1996 by and between GENSIA, INC., a
Delaware corporation ("Sublandlord"), and COLLATERAL THERAPEUTICS, INC., a
California corporation ("Subtenant").
RECITALS
A. Sublandlord and Subtenant are currently parties to that certain
Sublease Agreement dated as of June 15, 1995 (the "Sublease") and that certain
Furniture Rental Agreement of even date therewith (the "Furniture Rental
Agreement"), covering certain premises (the "Sublease Premises") located at 0000
Xxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx 00000, as more particularly
described in the Sublease and the Furniture Rental Agreement, as applicable. All
defined terms used in this Amendment, unless otherwise indicated herein, shall
have the meanings ascribed to them in the Sublease and the Furniture Rental
Agreement, as applicable.
B. Sublandlord and Subtenant wish to hereby modify certain terms and
provisions under the Sublease and the Furniture Rental Agreement, as applicable,
and are executing this Amendment to effectuate said modifications.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing Recitals, the mutual
covenants hereafter set forth, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. AMENDMENTS TO SUBLEASE. The Sublease is hereby amended as follows:
a. TERM. The Sublease Expiration Date shall be December 31, 1997.
Provided Subtenant is not in default under the Sublease at the time of the
exercise thereof, Subtenant shall have one (1) option to extend the Sublease
("Option to Extend"). The Option to Extend shall be for an additional one (1)
year period (the "Extension Period"). The Option to Extend shall be exercisable
by Subtenant upon delivery of prior written notice (the "Exercise Notice")
thereof to Sublandlord. The Exercise Notice shall be given not later than ninety
(90) days prior to the expiration of the Term. In the event Subtenant shall
exercise the Option to Extend pursuant to the provisions set forth herein, the
Term of the Sublease shall be extended by the Extension Period and
the Sublease Expiration Date shall be deemed to be the expiration date of such
extended Term of the Sublease. Such extended Term shall be on all the terms and
conditions of the Sublease, as applicable.
b. TELEPHONE SYSTEM. Notwithstanding the provisions of
Section 4(c)(ii) of the Sublease, Subtenant's use of Sublandlord's
telephone/voice/data system in connection with Subtenant's sublease of the
Sublease Premises shall automatically terminate effective January 1, 1997 and
Subtenant shall have no right to any further use of such system from and after
said date. Any replacement system which Subtenant desires to effect or install
in the Sublease Premises shall be subject to Sublandlord's prior consent and
shall comply with all requirements of the Sublease with respect to Subtenant's
use and occupancy of the Sublease Premises.
c. SIGNAGE. Notwithstanding the provisions of Section 6 of the
Sublease, Subtenant may install one identification sign on the existing
secondary monument sign (identified as approximately 28 inches x 70 inches in
dimension) located on the exterior grounds of the Master Premises approximately
100 feet west of the main monument sign located at the corner of Executive Drive
and Towne Centre Drive. The size, location and appearance of such sign. shall
be subject to the prior approval of Sublandlord in its sole discretion.
Subtenant shall be responsible for all costs and necessary government approvals
with respect to such sign. The provisions of Section 6 of the Sublease shall
govern Subtenant's obligations to maintain and remove the sign and Subtenant
shall have no right to modify said sign as approved by Sublandlord without the
further consent of Sublandlord thereto.
d. PARKING. Notwithstanding the provisions of Section 7 of the
Sublease, Subtenant shall be entitled to the use of twenty (20) parking spaces,
on a non-reserved basis, with respect to its use and occupancy of this Sublease
Premises. Subtenant's use of such spaces shall be subject to all other
provisions of Section 7 of the Sublease.
2. AMENDMENTS TO FURNITURE RENTAL AGREEMENT. The Furniture Rental
Agreement is hereby amended to provide that an additional eight (8) cubicles
shall be included within the terms of the Furniture Rental Agreement as
Furniture. The Rental Fee shall be increased to the aggregate amount of $990.18
per month. Such cubicles shall be of a size, nature and condition as those that
are currently subject to the Furniture Rental Agreement and located in the
Sublease Premises. Subtenant as "Lessee" under the Furniture Rental Agreement,
hereby reaffirms and reacknowledges each and every representation, warranty,
waiver and indemnity obligation set forth in the Furniture Rental Agreement.
3. EFFECT OF AMENDMENT. Except as expressly amended under this
Amendment, all provisions of the Sublease and the Furniture
-2-
Rental Agreement, as applicable, shall remain in full force and effect. In the
event of any conflict between this Amendment and the Sublease and the Furniture
Rental Agreement, as applicable, this Amendment shall control to the extent of
such conflict.
4. ENTIRE AGREEMENT. This Amendment constitutes the entire agreement
between the parties hereto pertaining to the subject matter hereof, and the
final, complete and exclusive expression of the terms and conditions thereof.
All prior agreements, representations, negotiations and understandings of the
parties hereto, oral or written, express or implied, are hereby superseded and
merged herein. This Amendment may be executed in one or more counterparts, each
of which shall be deemed an original, and all of which shall constitute one and
the same binding agreement.
IN WITNESS WHEREOF, the undersigned have executed this Amendment No. 1 to
Sublease Agreement and Furniture Rental Agreement as of the date first written
above.
SUBLANDLORD:
GENSIA, INC., a Delaware corporation
By: /s/ illegible
---------------------------------
Its: VP Finance
--------------------------------
SUBTENANT:
COLLATERAL THERAPEUTICS, INC.,
a California corporation
By: /s/ Xxxxxxxxxxx Xxxxxxxx
-------------------------------------
Its: Chief Operating & Financial Officer
------------------------------------
-3-
AMENDMENT NO. 2 TO SUBLEASE AGREEMENT
AND FURNITURE RENTAL AGREEMENT
This AMENDMENT NO. 2 TO SUBLEASE AGREEMENT AND FURNITURE RENTAL AGREEMENT
(this "Amendment") is made as of November _, 1996 by and between GENSIA, INC., a
Delaware corporation ("Sublandlord") and COLLATERAL THERAPEUTICS, INC., a
California corporation ("Subtenant").
RECITALS
A. Sublandlord and Subtenant are currently parties to that certain
Sublease Agreement dated as of June 15, 1995 (the "Sublease") and that certain
Furniture Rental Agreement of even date therewith (the "Furniture Rental
Agreements"), each as amended pursuant to a certain Amendment No. 1 to Sublease
Agreement and Furniture Rental Agreement dated as of October 31, 1996, covering
certain premises (the "Sublease Premises") located at 0000 Xxxxx Xxxxxx Xxxxx,
Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx 00000, as more particularly described in the
Sublease and the Furniture Rental Agreement, as applicable. All defined terms
used in this Amendment, unless otherwise indicated herein, shall have the
meanings ascribed to them in the Sublease and the Furniture Rental Agreement, as
applicable.
B. Sublandlord and Subtenant wish to hereby modify certain terms and
provisions under the Sublease and the Furniture Rental Agreement, as applicable,
and are executing this Amendment to effectuate said modifications.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing Recitals, the mutual
covenants hereafter set forth, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. AMENDMENTS TO SUBLEASE. The Sublease is hereby amended as follows:
a. INSURANCE. Subtenant shall be required to maintain comprehensive
liability insurance in the minimum policy amount of $1,000,000 under
Section 8(c) of the Sublease. All other insurance requirements of Subtenant
under the Sublease shall remain in full force and effect.
2. EFFECT OF AMENDMENT. Except as expressly amended under this
Amendment, all provisions of the Sublease and the Furniture Rental Agreement, as
applicable, shall remain in full force and effect. In the event of any conflict
between this Amendment and
-1-
the Sublease and the Furniture Rental Agreement, as applicable, this Amendment
shall control to the extent of such conflict.
3. ENTIRE AGREEMENT. This Amendment constitutes the entire agreement
between the parties hereto pertaining to the subject matter hereof, and the
final, complete and exclusive expression of the terms and conditions thereof.
All prior agreements, representations, negotiations and understandings of the
parties hereto, oral or written, express or implied, are hereby superseded and
merged herein. This Amendment may be executed in one or more counterparts, each
of which shall be deemed an original, and all of which shall constitute one and
the same binding agreement.
IN WITNESS WHEREOF, the undersigned have executed this Amendment No. 2 to
Sublease Agreement and Furniture Rental Agreement as of the date first written
above.
SUBLANDLORD:
GENSIA, INC., a Delaware corporation
By: /s/ illegible
---------------------------------
Its: VP Finance
--------------------------------
SUBTENANT:
COLLATERAL THERAPEUTICS, INC.,
a California corporation
By: /s/ Xxxxx Xxxxxx
---------------------------------
Its: VP Administration
--------------------------------
-2-
AMENDMENT NO. 3 TO SUBLEASE AGREEMENT
AND FURNITURE RENTAL AGREEMENT
This AMENDMENT NO. 3 TO SUBLEASE AGREEMENT AND FURNITURE RENTAL AGREEMENT
(this "Amendment") is made as of May 11, 1998 by and between GENSIA SICOR INC.,
a Delaware corporation ("Sublandlord") and COLLATERAL THERAPEUTICS, INC., a
California corporation ("Subtenant").
RECITALS
A. Sublandlord and Subtenant are currently parties to that certain
Sublease Agreement dated as of June 15, 1995 (the "Sublease") and that certain
Furniture Rental Agreement of even date therewith (the "Furniture Rental
Agreement"), each as amended pursuant to a certain Amendment No. 1 to Sublease
Agreement and Furniture Rental Agreement dated as of October 31, 1996, and a
certain Amendment No. 2 to Sublease Agreement and Furniture Rental Agreement
dated as of November 1, 1996, covering certain premises (the "Sublease
Premises") located at 0000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx
00000, as more particularly described in the Sublease and the Furniture Rental
Agreement, as applicable. All defined terms used in this Amendment, unless
otherwise indicated herein, shall have the meanings ascribed to them in the
Sublease and the Furniture Rental Agreement, as applicable.
B. Sublandlord and Subtenant wish to hereby modify certain terms and
provisions under the Sublease and the Furniture Rental Agreement, as applicable,
and are executing this Amendment to effectuate said modifications.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing Recitals, the mutual
covenants hereafter set forth, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. AMENDMENTS TO SUBLEASE. The Sublease is hereby amended as follows:
a. EXPANSION OF SUBLEASED PREMISES. Effective as of May 11, 1998,
the Sublease Premises shall be expanded to include the entirety of the space
shown as cross-hatched on the attached Exhibit "A" and comprising in the
aggregate 1426 rentable square feet of space (the "Expansion Area"). The
Expansion Area shall be delivered to Subtenant in its "as-is" condition, without
any obligation on the part of Sublandlord to prepare the Expansion Area for
Subtenant's use or occupancy. Subtenant's use and occupancy of the Expansion
Area shall be on all the terms and conditions of the Sublease, including payment
of Base Rental therefor, for the remainder of the Term, at the rate specified in
Paragraph l(b) below.
b. MODIFICATION OF BASE RENTAL. Effective as of the date of this
Amendment, monthly installments of Base Rental payable by Subtenant to
Sublandlord with respect to the
Expansion Area shall be calculated at the rate of $1.80 per rentable square foot
of the Expansion Area.
2. EFFECT OF AMENDMENT. Except as expressly amended under this
Amendment, all provisions of the Sublease and the Furniture Rental Agreement, as
applicable, shall remain in full force and effect. In the event of any conflict
between this Amendment and the Sublease and the Furniture Rental Agreement, as
applicable, this Amendment shall control to the extent of such conflict.
3. ENTIRE AGREEMENT. This Amendment constitutes the entire agreement
between the parties hereto pertaining to the subject matter hereof, and the
final, complete and exclusive expression of the terms and conditions thereof.
All prior agreements, representations, negotiations and understandings of the
parties hereto, oral or written, express or implied, are hereby superseded and
merged herein. This Amendment may be executed in one or more counterparts, each
of which shall be deemed an original, and all of which shall constitute one and
the same binding agreement.
IN WITNESS WHEREOF, the undersigned have executed this Amendment No. 3 to
Sublease Agreement and Furniture Rental Agreement as of the date first written
above.
SUBLANDLORD:
-----------
GENSIA SICOR INC.,
a Delaware corporation
By: /s/ illegible
----------------------------
Its:
---------------------------
SUBTENANT:
---------
COLLATERAL THERAPEUTICS, INC.,
a California corporation
By:/s/ Xxxxxxxxxxx Xxxxxxxx
----------------------------
Its: COO & CFO
---------------------------
Collateral Expansion
[PICTURE]
