SITE ACCESS LICENSE AGREEMENT
THIS SITE ACCESS LICENSE AGREEMENT is made this 31st day of
May, 2001 (the "Effective Date"), by and between Miravant Medical Technologies,
a Delaware corporation ("Licensee"), and The Pharmacia & Upjohn Company, a
Delaware corporation ("Licensor").
W I T N E S S E T H:
WHEREAS, Licensor and Licensee have executed and delivered,
each to the other, a Sublease Assignment Agreement, dated as of the date of this
Agreement (the "Sublease Assignment Agreement"), in which Licensee has agreed to
assign to Licensor, through the Sublease Termination Date (as defined in the
Sublease Assignment Agreement), Licensee's entire right, title and interest in
and to that certain Sublease, dated June 10, 1992 (as amended), between Raytheon
Corporation and Licensee, relating to the Premises (as hereinafter defined).
NOW, THEREFORE, in consideration of the premises and the
mutual representations, warranties, covenants and agreements contained herein
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Parties hereto agree as follows:
ARTICLE I
Definitions
As used in this Agreement, the following terms shall mean as
follows:
"Agreement" shall mean, collectively, this Site Access License
Agreement and the Site Access Protocols.
"Bankruptcy" shall mean with respect to any Party: (i) such
Party making an assignment for the benefit of creditors or admitting in writing
its inability to pay its debts when due; (ii) the commencement by or against
such Party of any liquidation, dissolution, bankruptcy, reorganization,
insolvency or other proceeding for the relief of financially distressed debtors,
or the appointment for such Party of a receiver, liquidator, custodian or
trustee; (iii) the entry of an order for relief against such Party under Title
11 of the United States Bankruptcy Code or any successor provisions; or (iv) if
any of the events referred to in this paragraph occur involuntarily, the failure
of same to be dismissed, stayed or discharged within ninety (90) days.
"Environmental Claim" shall mean any written claim,
proceeding, suit, complaint, or notice of violation alleging violation of, or
liability under, any Environmental Laws.
"Environmental Costs" shall mean any and all Losses which may
be imposed upon, incurred by or asserted or awarded against any person in
connection with or arising from (i) any failure or alleged failure of the
Premises or Licensee's activities or operations at or on the Premises to comply
with any Environmental Law, (ii) the presence or alleged presence of any
Hazardous Materials on, in, under, emitted from, or alleged exposure affecting
all or any portion of, the Premises (or any condition resulting therefrom) or
(iii) the transportation or presence at any other location of Hazardous
Materials relating to the Premises (or any condition resulting therefrom),
including any such Costs incurred as a result of any natural resource damages,
or any violation of Environmental Laws or any investigation, site monitoring,
containment, clean-up, removal, restoration or other remedial work.
"Environmental Laws" shall mean any applicable federal, state
or local laws, statutes, regulations, codes, ordinances, permits, decrees,
orders or common law relating to, or imposing standards regarding, the
protection, health or safety (in either case as relating to the environment) or
the protection of the environment.
"Environmental Liability" shall mean any Environmental Costs
arising out of any claim, legal action, suit, arbitration, governmental
investigation, action or other legal or administrative proceeding related to the
ownership or operation of the Premises under any Environmental Law and arising
from an event or condition constituting a violation of Environmental Law or a
Release or alleged Release of a Hazardous Material at or on the Premises.
"Hazardous Materials" shall mean any hazardous or toxic
substance or any material or waste defined, listed, or classified as such or
otherwise regulated under any Environmental Law, including friable asbestos,
lead, petroleum, and polychlorinated biphenyls.
"Licensee Indemnified Parties" shall have the meaning
specified in Section 4.1(b).
"Licensor Indemnified Parties" shall have the meaning
specified in Section 4.1(a).
"Loss" shall mean any damage, claim, loss, charge, action,
suit, proceeding, deficiency, tax, interest, penalty and reasonable costs and
expenses (including reasonable attorneys' fees).
"Party" shall mean any signatory to this Agreement or its
assignees or successors.
"Person" shall mean any individual, sole proprietorship,
partnership, joint venture, trust, unincorporated organization, association,
corporation, institution, public benefit corporation, entity or government
(whether Federal, state, county, city, municipal or otherwise, including any
instrumentality, division, agency, body or department thereof).
"Premises" shall mean that certain free standing industrial
building located at 0000 Xxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxx, comprising
approximately 18,900 square feet.
"Release" shall be defined as that term is defined in 42
U.S.C.ss.9601 (22).
"Site Access Protocols" shall have the meaning specified in
Section 2.2.
"Sublease Assignment Agreement" has the meaning set forth in
the Recitals.
"Third Party Claim" shall mean a claim or demand made against
Licensor by any Person who is not a Party.
ARTICLE II
License and Site Access Protocols
2.1 Grant of License. Licensor hereby grants to
Licensee and its employees and visitors a fully paid license, for the term of
this Agreement, to enter upon and conduct the business activities of Licensee in
and upon the Premises, subject to the Site Access Protocols.
2.2 Site Access Protocols. During the 30 days following
the date of this Agreement, Licensor and Licensee shall cause their respective
representatives to negotiate in good faith and to develop jointly a set of
written, reasonable and mutually acceptable terms, conditions, rules,
guidelines, protocols and arrangements concerning Licensee's access to and
activities upon the Premises (such terms, conditions, rules, guidelines,
protocols and arrangements collectively, as they may be from time to time
amended, the "Site Access Protocols"). Licensee and Licensor intend that the
Site Access Protocols will address, among other things, security, safety and
signage issues and will delineate the portions of the Premises used primarily by
Licensee and the portions of the Premises used primarily by Licensor. Licensee
and Licensor shall negotiate in good faith, from time to time, concerning any
amendments or modifications to the Site Access Protocols.
ARTICLE III
Term and Termination
3.1 Term. The term of this Agreement shall commence on
June 1, 2001 and end on the earlier of December 31, 2003 and the date as of
which this Agreement is terminated in accordance with Section 3.2.
3.2 Termination. This Agreement may be terminated as
follows:
a. Licensor may terminate this Agreement (i) at will, on 180 days' written
notice, or (ii) in the event of any of the following occurrences:
(A) a breach of this Agreement by Licensee which has not been cured within
30 days following the giving of written notice of such breach to Licensee by
Licensor; or
(B) the bankruptcy of Licensee or any of its subsidiaries.
b. Licensee may terminate this Agreement (i) at will, on 180 days' written
notice, or (ii) in the event of any of the following occurrences:
(A) a breach of this Agreement by Licensor which has not been cured within
30 days of written notice of such breach to Licensor by Licensee; or
(B) the bankruptcy of Licensor or any of its subsidiaries.
ARTICLE IV
Indemnification
4.1 Indemnification. (a) Licensee agrees to indemnify,
defend and hold Licensor and its affiliates and their respective directors,
officers, employees, agents and representatives (collectively, the "Licensor
Indemnified Parties") harmless from and against any Loss to which Licensor may
become subject arising out of, by reason of or otherwise in connection with (i)
any Third Party Claims arising out of the grant of the license contemplated by
this Agreement, (ii) the use by Licensee of, or activities performed by Licensee
on, the Premises, (iii) Licensee's breach of this Agreement, (iv) any and all
Environmental Costs and Environmental Liabilities, except those directly
attributable to the acts of the Licensor Indemnified Parties while on the
Premises, and (v) any and all Third Party Claims made by directors, officers,
employees or invitees of Licensee or its affiliates made with respect to events
occurring on the Premises. Notwithstanding any provision in this Agreement to
the contrary, Licensee shall not be liable under this Section 4.1 for any
consequential, special or punitive damages (including but not limited to lost
profits), except to the extent that such consequential, special or punitive
damages relate to a Loss resulting from a Third Party Claim.
(b) Licensor agrees to indemnify, defend and hold Licensee and
its affiliates and their respective directors, officers, employees, agents and
representatives (collectively, the "Licensee Indemnified Parties") harmless from
and against any Loss to which Licensee may become subject arising out of, by
reason of or otherwise in connection with (i) the use by Licensor of, or
activities performed by Licensor on, the Premises, (ii) Licensor's breach of
this Agreement, and (iii) any and all Third Party Claims made by directors,
officers, employees or invitees of Licensor or its affiliates made with respect
to events occurring on the Premises. Notwithstanding any provision in this
Agreement to the contrary, Licensor shall not be liable under this Section 4.1
for any consequential, special or punitive damages (including but not limited to
lost profits), except to the extent that such consequential, special or punitive
damages relate to a Loss resulting from a Third Party Claim.
4.2 Third Party Claims. If a Third Party Claim is made
against any Licensor Indemnified Party or Licensee Indemnified Party (any, an
"Indemnitee") with respect to which such Indemnitee is entitled to
indemnification pursuant to this Agreement, such Indemnitee shall notify the
Party which is or may be required pursuant to Section 4.1 hereof to make such
indemnification (the "Indemnifying Party") in writing, and in reasonable detail,
of the Third Party Claim promptly (and in any event within 15 days) after
receipt by such Indemnitee of written notice of the Third Party Claim; provided,
however, that failure to give such notification shall not affect the
indemnification provided hereunder except to the extent the Indemnifying Party
shall have been actually prejudiced as a result of such failure. Thereafter, the
Indemnitee shall deliver to the Indemnifying Party, promptly (and in any event
within 10 days) after the Indemnitee's receipt thereof, copies of all notices
and documents (including court papers) received by the Indemnitee relating to
the Third Party Claim.
If a Third Party Claim is made against an Indemnitee, the
Indemnifying Party shall be entitled to participate in the defense thereof and,
if it so chooses and acknowledges in writing its obligation to indemnify the
Indemnitee therefor, to assume the defense thereof with counsel selected by the
Indemnifying Party; provided that such counsel is not reasonably objected to by
the Indemnitee. Should the Indemnifying Party so elect to assume the defense of
a Third Party Claim, the Indemnifying Party shall, within 30 days (or sooner if
the nature of the Third Party Claim so requires), notify the Indemnitee of its
intent to do so, and the Indemnifying Party shall thereafter not be liable to
the Indemnitee for legal or other expenses subsequently incurred by the
Indemnitee in connection with the defense thereof; provided, that such
Indemnitee shall have the right to employ counsel to represent such Indemnitee
if, in such Indemnitee's reasonable judgment, a conflict of interest between
such Indemnitee and such Indemnifying Party exists in respect of such claim
which would make representation of both such parties by one counsel
inappropriate, and in such event the fees and expenses of such separate counsel
shall be paid by such Indemnifying Party. If the Indemnifying Party assumes such
defense, the Indemnitee shall have the right to participate in the defense
thereof and to employ counsel, subject to the proviso of the preceding sentence,
at its own expense, separate from the counsel employed by the Indemnifying
Party, it being understood that the Indemnifying Party shall control such
defense. The Indemnifying Party shall be liable for the fees and expenses of
counsel employed by the Indemnitee for any period during which the Indemnifying
Party has failed to assume the defense thereof (other than during the period
prior to the time the Indemnitee shall have given notice of the Third Party
Claim as provided above). If the Indemnifying Party so elects to assume the
defense of any Third Party Claim, all of the Indemnitees shall cooperate with
the Indemnifying Party in the defense or prosecution thereof, including by
providing or causing to be provided agreements, documents, books, records, files
and witnesses as soon as reasonably practicable after receiving any request
therefor from or on behalf of the Indemnifying Party.
If the Indemnifying Party acknowledges in writing
responsibility under this Section 4.2 for a Third Party Claim, then in no event
will the Indemnitee admit any liability with respect to, or settle, compromise
or discharge, any Third Party Claim without the Indemnifying Party's prior
written consent; provided, however, that the Indemnitee shall have the right to
settle, compromise or discharge such Third Party Claim without the consent of
the Indemnifying Party if the Indemnitee releases the Indemnifying Party from
its indemnification obligation hereunder with respect to such Third Party Claim
and such settlement, compromise or discharge would not otherwise adversely
affect the Indemnifying Party. If the Indemnifying Party acknowledges in writing
liability for a Third Party Claim, the Indemnitee will agree to any settlement,
compromise or discharge of a Third Party Claim that the Indemnifying Party may
recommend and that by its terms obligates the Indemnifying Party to pay the full
amount of the liability in connection with such Third Party Claim and releases
the Indemnitee completely in connection with such Third Party Claim and that
would not otherwise adversely affect the Indemnitee.
Notwithstanding the foregoing, the Indemnifying Party shall
not be entitled to assume the defense of any Third Party Claim (and shall be
liable for the fees and expenses of counsel incurred by the Indemnitee in
defending such Third Party Claim) if the Third Party Claim seeks an order,
injunction or other equitable relief or relief for other than money damages
against the Indemnitee which the Indemnitee reasonably determines, after
conferring with its counsel, cannot be separated from any related claim for
money damages. If such equitable relief or other relief portion of the Third
Party Claim can be so separated from that for money damages, the Indemnifying
Party shall be entitled to assume the defense of the portion relating to money
damages.
4.2 Remedies and Payments. The remedies provided in
this Article IV shall be cumulative and shall not preclude assertion by
Indemnitee of any other rights or the seeking of any and all other remedies
against the Indemnifying Party. Indemnification required by this Article IV
shall be made by periodic payments of the amount thereof during the course of
the investigation or defense, as and when bills are received or any Loss is
incurred. If Indemnifying Party fails to make an indemnification payment
required by this Article IV within 30 days after receipt of a xxxx therefore,
the Indemnifying Party shall also be required to pay interest on the amount of
such indemnification payment, from the date of receipt of the xxxx to, but not
including the date of payment, at the prime lending rate announced from time to
time by Citibank, N.A.
4.3 Survival. The Parties' obligations under this
Article IV shall survive the termination of this Agreement.
ARTICLE V
Miscellaneous
5.1. Specific Performance. Each Party acknowledges that one
Party will have no adequate remedy at law if the other Party fails to perform
any of its obligations under this Agreement. In such event, each Party agrees
that the other Party shall have the right, in addition to any other rights it
may have, to specific performance of this Agreement and agrees to take no action
to oppose the other Party's seeking such remedy.
5.2. Waivers. No action taken pursuant to this Agreement,
including any investigation by or on behalf of any Party hereto, shall be deemed
to constitute a waiver by the Party taking such action of compliance with any
representation, warranty, covenant, or agreement contained herein. Any waiver by
any Party hereto of a breach of any provision of this Agreement must be in
writing and shall not operate or be construed as a waiver of any subsequent
breach.
5.3. Notices. Any communication, demand or notice to be given
hereunder will be duly given when delivered in writing or by telecopy to a Party
at its address as indicated below or such other address as such Party may
specify in a notice to each other Party hereto. A communication, demand or
notice given pursuant to this Agreement shall be addressed:
If to Licensor:
Pharmacia Corporation
000 Xxxxx 000 Xxxxx
Xxxxxxx, Xxx Xxxxxx 00000
Attn: General Counsel
Fax: (908) 901-o
with a copy (which, in and of itself, shall not constitute
notice) to:
Xxxxxxx X. Xxxx
Xxxxxxxx & Xxxxxxxx
0000 Xxxxxxxxxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
If to Licensee:
Miravant Medical Technologies
000 Xxxxxx Xxxxx
Xxxxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxx X. Xxxxxxx
Fax: (000)000-0000
with a copy (which, in and of itself, shall not constitute
notice) to:
Xxxxxx X. Xxxx
Xxxx & Xxxxxxx, LLP
000 Xxxxxxx Xxxxxx
Xxxxx Xxxxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
or, as to any Party, to such other address as shall be designated by such Party
in a prior written notice to each other Party similarly given.
5.4. Parties in Interest. This Agreement shall inure to the
benefit of and be binding upon the Parties named herein and their respective
successors and assigns. Nothing in this Agreement, express or implied, is
intended to confer upon any person other than the Parties or their successors or
assigns, any rights or remedies under or by reason of this Agreement.
5.5. Entire Agreement; Amendments. This Agreement contains the
entire agreement between the Parties hereto with respect to the subject matter
hereof and supersedes all prior and contemporaneous agreements and
understandings, oral or written, with respect to such transactions. This
Agreement may not be changed, amended or modified orally, but only by an
agreement in writing signed by the Party against whom any waiver, change,
amendment, modification or discharge may be sought.
5.6. Headings. The section and other headings contained in this Agreement
are for reference purposes only and shall not affect the meaning or
interpretation of this Agreement.
5.7. Counterparts. This Agreement may be executed in any number of
counterparts, each of which, when executed, shall be deemed to be an original
and all of which together shall be deemed to be one and the same instrument.
5.8. Governing Law. The validity, performance and enforcement of this
Agreement shall be governed by the laws of the State of California (regardless
of the laws that might otherwise govern under California principles of conflicts
of laws).
5.9. Relationship. Nothing in this Agreement shall be construed to render
Licensor and Licensee partners or joint venturers or to impose upon any of them
any liability as such.
IN WITNESS WHEREOF, this Agreement has been duly executed as
of the date herein above indicated.
MIRAVANT TECHNOLOGIES
By: _________________________
Name:
Title:
THE PHARMACIA & UPJOHN COMPANY
By: _________________________
Name:
Title:
