SUBLEASE
Exhibit
10.7
SUBLEASE
| Dated: | March 14, 2005 |
| “Sublandlord”: | FRIEDMAN, BILLINGS, XXXXXX GROUP, INC., a Virginia corporation |
| “Subtenant”: | INNOVIVE PHARMACEUTICALS, INC., a Delaware corporation |
| “Sublease Premises”: | The entire twenty-fifth (25th) floor of the Building containing five thousand five hundred twenty-six (5,526) rentable square feet of space as stipulated and agreed to by Sublandlord and Subtenant. |
| “Sublease Term”: | The Sublease Term shall mean the period commencing on the first business day after the Master Landlord’s consent to this Sublease is obtained as required by Section 3.02 below and delivered to Sublandlord and Subtenant (the “Sublease Commencement Date”), and expiring on August 30, 2012 (the “Sublease Expiration Date”). |
| “Building”: | 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx |
| “Master Landlord”: | Xxxxxx Company, N.V., Inc. |
| “Master Lease”: | The Agreement of Lease dated April 26, 2002, a copy of which is attached hereto as Exhibit A. |
RECITALS:
A. Sublandlord,
as tenant, leases the Sublease Premises from Master Landlord under the Master
Lease.
B. Subtenant
wants to sublease from Sublandlord, and Sublandlord wants to sublease to
Subtenant, the Sublease Premises.
NOW,
THEREFORE,
in consideration of the recitals above and the promises below, the parties
hereto agree as follows:
SUBLEASE
AGREEMENT
ARTICLE
I
INCORPORATION
OF MASTER LEASE
1.01 Incorporation
of Master Lease. The
definitions set forth
on the first page of this Sublease as well as the Recitals set forth above
hereby are incorporated into this Sublease by this reference. In addition,
the
terms and provisions of the Master Lease hereby are incorporated into this
Sublease by this reference (such terms and provisions to be construed with
necessary modifications as the context requires). As between Sublandlord
and
Subtenant only, all provisions of the Master Lease are subject to the express
provisions of this Sublease, and any inconsistency between a provision of
this
Sublease and a provision of the Master Lease shall be resolved by reference
to
this Sublease unless otherwise stated. Notwithstanding the foregoing,
Sublandlord and Subtenant expressly agree that the following terms, covenants
and conditions of the Master Lease are expressly excluded from this Sublease:
Articles 34, 41, 48, 49, 53, 56, 60, 67, Exhibit C, and Exhibit D. In addition,
with respect to Subtenant’s obligations under Section 57 of the Master Lease,
Sublandlord and Subtenant expressly acknowledge and agree that (i) Subtenant
shall not be required to pay more than Fifty Thousand Dollars ($50,000.00)
with
respect to any one alteration or capital improvement for which the “Tenant” is
required to pay its Proportionate Share (a “Qualified Alteration”), and (ii)
Subtenant shall not be required to pay more than One Hundred Thousand Dollars
in
the aggregate with respect to Qualified Alterations during the Sublease
Term.
1.02 Binding
Effect of Master Lease. Subtenant
agrees, for the
benefit of Sublandlord and Master Landlord, to abide by and perform all of
the
terms and provisions set forth in the Master Lease pertaining to the Sublease
Premises, except as otherwise expressly provided by this Sublease. Subtenant
shall neither commit nor permit to be committed on the Sublease Premises
any act
or omission that in any way violates any term or condition of the Master
Lease.
1.03 Maintenance
of Master Lease. Sublandlord
agrees to
maintain the Master Lease in full force and effect during the Sublease Term,
subject however to any earlier termination of all or any part of the Master
Lease without the fault or voluntary acts or omissions of Sublandlord. If
the
Master Lease is terminated for any reason, then this Sublease shall terminate
as, when, and to the extent the Master Lease is terminated.
1.04 Obligations
of Master Landlord. Subtenant
agrees that no
failure or delay on the part of Master Landlord to supply any service, make
any
repair or take any action required under the Master Lease shall constitute
a
default by Sublandlord under this Sublease, constitute a constructive eviction,
give rise to a claim against Sublandlord for damages or otherwise constitute
a
breach of this Sublease by Sublandlord.
Notwithstanding
anything in this Sublease to the contrary, Sublandlord agrees to cooperate
with
Subtenant, at no cost or expense to Sublandlord other than those costs or
expenses paid by Subtenant, in (i) obtaining for Subtenant any consent of
Master
Landlord sought by Subtenant for any action for which the Master Lease requires
Master Landlord’s consent and (ii) delivering any notice to Master Landlord as
required by any provision of the Master Lease including, without limitation,
promptly forwarding any request made by Subtenant to Master Landlord for
services, or consent or approval, and upon receipt from Subtenant, providing
Master Landlord with all information required (or that Master Landlord may
reasonably request) regarding such request. In the event Subtenant shall
obtain
the consent of Master Landlord with respect to a matter requiring the consent
of
Master Landlord under the Master Lease, then provided such matter does not
impose any additional obligation, duty or liability upon Sublandlord, then,
and
in such event, Sublandlord shall automatically be deemed to have given its
consent to such matter under this Sublease. In the event such matter does
impose
any additional obligation, duty or liability upon Sublandlord, Sublandlord
shall
not unreasonably withhold, delay or condition its consent provided that
Subtenant agrees as a condition of such consent, at its sole cost and expense,
to fulfill any such obligation or duty and incur any such
liability.
If
Master Landlord defaults in any obligation to Sublandlord regarding the Sublease
Premises, then Sublandlord shall not, except as and to the extent set forth
in
this paragraph, be obligated to bring any action or proceeding or to take
any
other steps to enforce Sublandlord’s rights against Landlord. Sublandlord shall
cooperate, at no cost to Sublandlord, in seeking to obtain Master Landlord’s
performance under the Master Lease. Upon Subtenant’s written request,
Sublandlord shall make written demand upon Master Landlord to perform Master
Landlord’s obligations regarding the Master Lease as it pertains to the Sublease
Premises. If, after Subtenant makes such demand, Master Landlord’s grace period,
if any, under the Master Lease expires and Master Landlord fails or refuses
to
perform Master Landlord’s obligations under the Master Lease, then Subtenant
shall have the right to proceed against the Master Landlord in Subtenant’s own
name. All rights of Sublandlord under the Master Lease necessary for that
purpose shall be, and hereby are, conferred upon and transferred to Subtenant.
Subtenant shall be subrogated to such rights to the extent that they apply
to
the Sublease Premises. If Subtenant cannot proceed against Master Landlord
in
Subtenant’s name because of lack of privity, nonassignability, or any other
reason, Subtenant shall have the right, at its sole cost and expense, to
proceed
against Master Landlord in Sublandlord’s name. Sublandlord shall execute all
documents and take all actions that Subtenant reasonably requests in connection
therewith. To the extent that, as a result of Master Landlord’s default under
the Master Lease affecting the Sublease Premises, Sublandlord recovers any
sum
from Master Landlord or is entitled to any abatement, credit, set-off, or
offset, such recovery, or the benefit thereof, then such sum, abatement,
credit,
set-off or offset applicable to the Subleased Premises shall belong exclusively
to Subtenant.
ARTICLE
2
SUBLEASE
PREMISES
2.01 Sublease
Premises. Sublandlord
hereby
subleases to Subtenant, and Subtenant hereby subleases from Sublandlord,
the
Sublease Premises, subject to the terms and conditions herein
contained.
2.02 Condition
of Sublease Premises. On
the Sublease
Commencement Date, Sublandlord shall deliver the Sublease Premises to Subtenant
in its “as-is”“where-is” condition as of the date hereof.
2.03 Building
Common Areas. Subtenant
shall have the
right, in common with others, to reasonable use of the common areas of the
Building (including, without limitation, elevators, corridors, restrooms
and
walkways), as and to the extent permitted, and subject to the rules and
regulations imposed, by Master Landlord under the Master Lease.
ARTICLE
3
TERM
3.01 Term. This Sublease
shall
be in full force and effect as of the date first written above. The Sublease
Term shall commence on the Sublease Commencement Date and shall expire on
the
Sublease Expiration Date, unless this Sublease is sooner terminated as provided
herein. For purposes of this Sublease, the term “Sublease
Year”
shall mean each period of twelve (12) full calendar months beginning on the
first day of the month in which the Rent Commencement Date (defined below)
occurs (“Commencement
Month”)
and ending on the last day of the twelfth (12th)
month following the Commencement Month. However, the Expiration Date shall
not
change, and the last Sublease Year of the Sublease Term shall end on the
Expiration Date, regardless of whether the last Sublease Year is thereby
less
than twelve (12) full calendar months.
3.02 Master
Landlord Consent to Sublease. Sublandlord
and Subtenant
each acknowledge and agree that this Sublease is subject to the written consent
of Master Landlord in the form attached hereto as Exhibit “D”. If such written
consent shall not be obtained on or before March 15, 2005, at anytime prior
to
receipt of such written consent, either Sublandlord or Subtenant shall have
the
right to terminate this Sublease in which event Sublandlord shall promptly
return any deposits and prepaid rents to Subtenant and this Sublease shall
be
deemed cancelled and terminated and neither of the parties hereto shall have
any
liability to the other. Sublandlord shall be solely responsible for the Sublease
Premium (as defined in Section 46J. of the Master Lease), if any, due to
Master
Landlord in connection with this Sublease.
ARTICLE
4
RENT
4.01 Base
Rent. Commencing
on April l,
2005 (the “Rent Commencement Date”) and continuing for the remainder of the
Sublease Term, Subtenant covenants and agrees to pay to Sublandlord annual
“Base
Rent”
for the Sublease Premises in accordance with the schedule set forth
below:
|
Sublease
Year
|
Base
Rent
Annual
|
Base
Rent
Monthly
|
|
One
|
$209,988.00
|
$17,499.00
|
|
Two
|
$209,988.00
|
$17,499.00
|
|
Three
|
$209,988.00
|
$17,499.00
|
|
Four
|
$209,988.00
|
$17,499.00
|
|
Five
|
$209,988.00
|
$17,499.00
|
|
Six
|
$221,040.00
|
$18,420.00
|
|
Seven
|
$221,040.00
|
$18,420.00
|
|
Eight*
|
$221,040.00
|
$18,420.00
|
*The
Eighth Sublease Year is a partial Sublease Year expiring on August 30,
2012.
The
term “Rent”
as used in this Sublease, unless otherwise stated, shall mean the Base Rent
set
forth in this Section 4.01, plus all additional amounts payable by Subtenant
hereunder (“Additional
Rent”),
and Sublandlord shall have all rights and remedies for nonpayment of Additional
Rent as it has for non-payment of Base Rent.
4.02 Prorated
Rent. In
the event this
Sublease commences or ends on some date other than the first or last day
of a
calendar month, all rent for that month shall be prorated on the basis of
a
thirty (30) day month to reflect the actual number of days during that month
in
the Sublease Term.
4.03 Payment
of Rent. Base
Rent hereunder shall
be payable in equal monthly installments, in advance, on or before the first
(1st)
day of each calendar month during the Sublease Term, and shall be payable
to
Sublandlord in lawful money of the United States at the address stated in
this
Sublease (or at such other place as Sublandlord may designate in writing).
Concurrent with the execution of this Sublease, Subtenant shall deposit with
Sublandlord the Base Rent for the initial full calendar month during the
Sublease Term.
4.04 Additional
Rent Under the Master Lease. Commencing
on January 1,
2006 and continuing for the remainder of the Sublease Term, Subtenant shall
pay
to Sublandlord as Additional Rent (x) the amount by which Tenant’s Operating
Payment for each Escalation Year (as such terms are defined in Section 40
of the
Master Lease) exceeds Tenant’s Operating Payment for the 2005 calendar year and
(y) the amount by which Tenant’s Tax Payment for each Escalation Year exceeds
Tenant’s Tax Payment for the 2005 calendar year. Subtenant shall pay such
amounts to Sublandlord within ten (10) days of billing therefor by Sublandlord,
which invoice shall be accompanied by a copy of Master Landlord’s annual
statement under the Master Lease. In the event Master Landlord shall xxxx
Sublandlord for increases in Operating Expenses and Real Estate Taxes under
the
Master Lease on an estimated basis, Subtenant shall pay its prorata share
of the
estimated payment on a monthly basis (adjusted to reflect the calendar year
2005
base) concurrent with the payment of the Monthly Base Rent for such month.
In
the event that Master Landlord shall refund to Sublandlord any overpayment
of
Tenant’s Operating Payment or Tenant’s Tax Payment which relate to payments made
during the Sublease Term, such refunds shall be taken into consideration
in
determining the Tenant’s Operating Payment and the Tenant’s Tax Payment for
purposes of this Section 4.04 and the parties shall promptly make such
adjustments as appropriate. Subtenant’s and Sublandlord’s obligations hereunder
shall expressly survive any expiration or termination of this
Sublease.
4.05 Security
Deposit. Concurrent
with its
execution of this Sublease Agreement, Subtenant shall deliver to Sublandlord,
as
security for Subtenant’s faithful payment of rent and performance of all
Subtenant’s other obligations hereunder, a security deposit in an amount equal
to One Hundred Four Thousand Nine Hundred Ninety-Four and No/100 Dollars
($104,994.00) (the “Security
Deposit”).
Sublandlord shall not be required to pay any interest on the Security Deposit.
Sublandlord shall be entitled to draw upon the Security Deposit, and use,
apply
and retain the proceeds thereof, to satisfy any of Subtenant’s unperformed
monetary and/or non-monetary obligations under the Sublease in cases where
the
Subtenant has failed to remedy or cure such obligation within any applicable
cure periods provided under this Sublease or the Master Lease (as the case
may
be). If Sublandlord so draws upon the Security Deposit, or uses, applies
or
retains the proceeds thereof, Subtenant shall, within ten (10) days following
demand, tender to Sublandlord cash in an amount sufficient to restore the
Security Deposit to the full amount required under this Section 4.05.
Sublandlord shall return any unapplied proceeds of the Security Deposit to
Subtenant within thirty (30) days after the expiration or earlier termination
of
this Sublease.
Subtenant
shall have the right to deliver to Sublandlord an unconditional, irrevocable
letter of credit (the “Letter of Credit”) in substitution for the cash Security
Deposit, subject to the following terms and conditions. Such letter of credit
shall be (a) in form and substance substantially in the form attached hereto
as
Exhibit
C;
(b) at all times in the amount of the Security Deposit, and shall permit
multiple draws without a corresponding reduction in the aggregate amount
of the
Letter of Credit; (c) issued by a commercial bank reasonably acceptable to
Sublandlord from time to time and located in the New York, New York metropolitan
area; (d) payable at sight upon presentment to a local branch of the issuer
of a
simple sight draft or certificate stating that Subtenant is in default under
this Sublease beyond the applicable cure period (provided, however that in
the
event that a notice of default to Subtenant may not be lawfully given by
Sublandlord, then Sublandlord shall be entitled to draw thereunder upon
presentment of a certificate stating that a notice of default cannot be lawfully
given and that Subtenant has failed to timely pay or perform an obligation
of
the Subtenant under this Sublease); (e) of a term not less than one year;
and
(f) at least thirty (30) days prior to the then-current expiration date of
such
letter of credit, either (1) renewed (or automatically and unconditionally
extended) from time to time through the thirtieth (30th) day after the
expiration of the Sublease Term, or (2) replaced with cash in the amount
of the
Security Deposit. Notwithstanding anything in this Sublease to the contrary,
any
cure or grace periods set forth in this Sublease shall not apply to any of
the
foregoing, and, specifically, if Subtenant fails to timely comply with the
requirements of subsection (f) above, then Sublandlord shall have the right
to
immediately draw upon the letter of credit without notice to Subtenant and
apply
the proceeds to the Security Deposit. Each Letter of Credit shall be issued
by a
commercial bank that has a credit rating with respect to certificates of
deposit, short term deposits or commercial paper of at least P-2 (or equivalent)
by Xxxxx’x Investor Service, Inc., or at least A-2 (or equivalent) by Standard
& Poor’s Corporation, and shall be otherwise acceptable to Sublandlord in
its sole and absolute discretion. Each Letter of Credit contemplated hereunder
shall be issued by a commercial bank that has a credit rating with respect
to
certificates of deposit, short term deposits or commercial paper of at least
P-2
(or equivalent) by Xxxxx’x Investor Service, Inc., or at least A-2 (or
equivalent) by Standard & Poor’s Corporation, and shall be otherwise
acceptable to Sublandlord in its reasonable discretion. If the issuer’s credit
rating is reduced below P-2 (or equivalent) by Xxxxx’x Investors Service, Inc.
or below A-2 (or equivalent) by Standard & Poor’s Corporation, or if the
financial condition of such issuer changes in any other materially adverse
way,
then Sublandlord shall have the right to require that Subtenant obtain from
a
different issuer a substitute letter of credit that complies in all respects
with the requirements of this section, and Subtenant’s failure to obtain such
substitute Letter of Credit within ten (10) days following Sublandlord’s written
demand therefor (with no other notice or cure or grace period being applicable
thereto, notwithstanding anything in this Sublease to the contrary) shall
entitle Sublandlord to immediately draw upon the then-existing Letter of
Credit
in whole or in part, without notice to Subtenant. In the event the issuer
of any
Letter of Credit held by Sublandlord is placed into receivership or
conservatorship by the Federal Deposit Insurance Corporation, or any successor
or similar entity, then, effective as of the date such receivership or
conservatorship occurs, said Letter of Credit shall be deemed to not meet
the
requirements of this section, and, within ten (10) days thereof, Subtenant
shall
replace such Letter of Credit with a Letter of Credit issued by an institution
which satisfies the foregoing requirements (and Subtenant’s failure to do so
within said ten (10) days shall, notwithstanding anything in this Sublease
to
the contrary, constitute a Default under the Sublease without the requirement
for any further notice hereunder). Any failure or refusal of the issuer to
honor
the Letter of Credit shall be at Subtenant’s sole risk and shall not relieve
Subtenant of its obligations hereunder with respect to the Security
Deposit.
Notwithstanding
anything in this Sublease to the contrary (including, without limitation,
any
cure or grace periods set forth in this Sublease), any failure by Subtenant
to
timely renew or replace said Letter of Credit and any failure by Subtenant
to
timely deliver to Sublandlord in writing proof of such renewal or replacement
shall be deemed a Default hereunder by Subtenant, without the necessity for
further notice to Subtenant, entitling Sublandlord to immediately draw upon
such
Letter of Credit in the full amount thereof. At all times during the Sublease
Term, Sublandlord shall be entitled to draw upon the entire amount of such
Letter of Credit to cure any outstanding Default. In the event that Sublandlord
draws upon the Letter of Credit by reason of Subtenant’s failure to timely renew
or replace the Letter of Credit, the proceeds thereof (except for any portion
thereof necessary to cure any other Default by Subtenant, if any) shall
constitute a cash Security Deposit hereunder, and shall be held in accordance
with the terms of the foregoing provisions.
In
the event Sublandlord transfers or assigns the Sublease, Sublandlord shall
simultaneously transfer the security deposit to the transferee or assignee
along
with such transfer or assignment. In the event the security deposit is in
the
form of a Letter of Credit, Subtenant shall pay all transfers costs imposed
by
the issuer of such Letter of Credit.
4.06 Late
Payments. In
the event any monthly
Base Rent payment, Additional Rent payment or any other payment due from
Subtenant hereunder is not paid within ten (10) days after it is due, Subtenant
shall also pay to Sublandlord a late fee of five percent (5%) of such delinquent
payment. Unpaid monthly Base Rent and Additional Rent shall also bear interest
at the rate of twelve percent (12%) per annum from the date due until paid
in
the event any such sums are not paid within five (5) days from the date due
hereunder. The aforesaid late charges and interest are intended to compensate
Sublandlord for its costs arising by reason of any such late payment and
are not
intended to constitute a waiver by Sublandlord of any other right or remedy
available to Sublandlord arising by reason of Subtenant’s failure to timely
perform its monetary obligations hereunder.
ARTICLE
5
SERVICES
AND ELECTRICITY
5.01 Services. The
Sublease Premises
will be supplied with the services described in the Master Lease, to the
extent
applicable to the Sublease Premises, at the times and in the manner provided
by
Master Landlord, subject to the limitations and restrictions stated in the
Master Lease. Sublandlord shall not be liable for any interruption or failure
of
utility services to the Sublease Premises (including, without limitation,
heating, ventilation and air conditioning (“HVAC”))
resulting from any cause beyond the reasonable control of Sublandlord and
Subtenant shall not be entitled to an abatement of rent under this Sublease
or
permitted to offset against the rent under this Sublease, except to the extent
that Sublandlord is entitled to an abatement of rent under the Master Lease
or
is permitted to offset the rent under the Master Lease, as applicable; provided,
however, if the cause of such interruption or failure is the act or omission
of
Master Landlord, Sublandlord agrees to use reasonable efforts to cause Mater
Landlord to cure such interruption or failure in accordance with the terms
and
provisions of Section 1.04 of this Sublease.
5.02 Electricity. Subtenant
expressly
recognizes and agrees that Subtenant shall be required to pay for all
electricity consumed in the Sublease Premises in accordance with the provisions
of Section 44 of the Master Lease.
ARTICLE
6
MAINTENANCE
AND REPAIRS
6.01 Maintenance
and Repairs. Subtenant
shall assume
all of Sublandlord’s obligations under the Master Lease first accruing after the
Sublease Commencement Date in relation to maintenance and repair of the Sublease
Premises, payment of taxes relating to Subtenant’s business and compliance with
all laws, ordinances, rules and regulations. Subtenant shall not be responsible
for any restoration obligations arising by reason of the installation of
any
alterations by Sublandlord within the Sublease Premises, but shall be
responsible for any restoration obligations arising by reason of any alterations
installed by Subtenant in the Sublease Premises.
6.02 Surrender
of Sublease Premises. At
the expiration or
sooner termination of the Sublease Term, Subtenant shall surrender the Sublease
Premises in the same condition as they were in on the Sublease Commencement
Date, except that Subtenant shall not be required to remove any alterations
to
the Sublease Premises which Master Landlord has agreed expressly in writing
do
not require removal at the expiration of the Master Lease. Subtenant shall
arrange for a joint inspection of the Sublease Premises by Sublandlord,
Subtenant and Master Landlord prior to Subtenant vacating the Sublease
Premises.
ARTICLE
7
USE
OF SUBLEASE PREMISES
7.01 Use. Subtenant
shall use the
Sublease Premises for general office purposes, executive and administrative
offices and for uses ancillary thereto only, and shall comply with all laws,
rules and requirements applicable to Subtenant’s conduct of its business and its
use and occupancy of the Sublease Premises. Subtenant shall not conduct any
activities in the Sublease Premises that would materially increase Sublandlord’s
risks, liabilities (in relation to Hazardous Materials (as defined in the
Master
Lease) or otherwise) or insurance rates, without first obtaining Sublandlord’s
consent in writing, and shall neither commit nor permit waste or nuisance
on or
about the Sublease Premises.
7.02 Condition
of Sublease Premises. Sublandlord
shall provide
the Sublease Premises to Subtenant at the Sublease Commencement Date in
“broom-clean” condition, and Subtenant otherwise accepts the Sublease Premises
in the “as-is, where-is” condition existing as of the date hereof, and
acknowledges that Sublandlord has made no representations or warranties as
to
the suitability of the Sublease Premises for the conduct of Subtenant’s business
and acknowledges further that Sublandlord is under no obligation to construct
or
install any alterations or improvements in or to the Sublease
Premises.
7.03 Compliance
with Laws Regarding Use. Subtenant
shall, at its
own expense, promptly comply with all applicable Federal, state and local
laws,
statutes, rules and regulations of any kind (collectively, “Laws”) in effect
during the Sublease Term regulating Subtenant’s use of the Sublease Premises.
Subtenant shall be solely responsible for obtaining or maintaining any and
all
permits, licenses and/or approvals necessary to the conduct of its business
in
the Sublease Premises, except that Subtenant shall not be responsible for
obtaining a certificate of occupancy for the Building. Subtenant shall neither
use nor permit the use of the Sublease Premises in any manner that will or
could
violate any applicable Federal, state and local laws, statutes, rules and
regulations or the provisions of the Master Lease. Sublandlord represents
and
warrants that as of the date hereof it has not received any notices of
violations (the “Violation Notices”) of any Laws, including, without limitation,
any Laws governing Hazardous Materials (as defined in the Master Lease) with
respect to the Sublease Premises.
7.04 Modification
of Sublease Premises. Subtenant
shall not make,
install, alter, construct, remove or demolish any alterations or any other
installations, additions, improvements or modifications of any kind in the
Sublease Premises or the Building (collectively, “Modifications”)
without the prior written consent of Sublandlord and Master Landlord, it
being
expressly recognized and agreed that Sublandlord’s consent shall not be required
for the initial alterations Subtenant intends to install in the Sublease
Premises. Any such Modifications made by Subtenant shall be made in accordance
with the Master Lease.
7.05 Right
of Entry. Subtenant
shall permit
Master Landlord and Sublandlord or their respective representatives to enter
the
Sublease Premises at all reasonable times, upon reasonable prior notice except
in case of emergency, when no notice shall be required, to inspect, make
necessary repairs without unreasonable disruption of Subtenant’s
business.
7.06 Covenants
of Subtenant. Subtenant
agrees to pay
the rent herein reserved, to abide by, observe and perform all of the terms,
covenants and conditions of this Sublease, and to surrender the Sublease
Premises to Sublandlord on the expiration or sooner termination of this Sublease
in the condition required hereunder. Subtenant shall abide by the provisions
of
the Master Lease as applicable, and by the rules and regulations established
by
Master Landlord from time to time.
7.07 Hazardous
Materials. Subtenant
shall not bring
nor allow to be brought into the Building or the Sublease Premises any hazardous
or toxic materials (including, without limitation, any Hazardous Materials
(as
defined in the Master Lease)). Subtenant shall comply with, observe and be
bound
by, and assume all responsibility for, all of the covenants of Sublandlord
as
tenant under the Master Lease concerning any hazardous and/or toxic materials
brought to the Sublease Premises during the Sublease Term by Subtenant or
any of
its officers, employees, agents, contractors, subcontractors, consultants,
representatives or guests (collectively, the “Subtenant Parties”). Subtenant
shall indemnify, defend and hold Sublandlord harmless from any claims, loss,
expenses or damages resulting from or arising out of any breach of the
provisions of this Section 7.07 by any Subtenant Parties. Subtenant’s
obligations under this Section 7.07 shall survive the expiration or earlier
termination of this Sublease.
7.08 Mechanic’s
Liens. If
any mechanic’s lien is
filed against the Sublease Premises, or the real property of which the Sublease
Premises are a part, for work claimed to have been done for or materials
claimed
to have been furnished to Subtenant, within twenty (20) days after Subtenant
receives written notice thereof, Subtenant shall discharge such lien by the
payment in full thereof or by posting a bond under applicable law. If Subtenant
shall fail to discharge such mechanic’s lien on time, Sublandlord may, at its
option, discharge such lien, in which event Subtenant shall reimburse
Sublandlord upon demand for the reasonable cost of doing so, and any such
amount
shall be Additional Rent and may be collected and enforced in same manner
as
rent. Subtenant shall indemnify and hold Sublandlord harmless from and against
any and all claims, loss, reasonable expenses and damages resulting from
or
arising out of any alterations, additions or improvements in the Sublease
Premises by or on behalf of Subtenant or the related filing of any mechanic’s
lien against the Sublease Premises or the Building (including, without
limitation, any claims asserted by Master Landlord against Sublandlord in
respect thereof).
ARTICLE
8
INDEMNITIES,
INSURANCE AND CASUALTY
8.01 Subtenant’s
Indemnity. Subtenant
shall indemnify
and hold Sublandlord and Master Landlord harmless from and against liabilities,
penalties, losses, damages, costs and reasonable expenses (including reasonable
attorneys’ fees), demands, causes of action, claims or judgments (collectively,
“Claims”)
arising out of personal injury, death or property damage occurring in, on,
or
about the Sublease Premises or any part thereof or occasioned by any act
or
omission of Subtenant, its officers, employees, agents, licensees, contractors
or invitees. The foregoing indemnity of Sublandlord by Subtenant shall also
extend to Claims made by Master Landlord against Sublandlord as a result
of any
breach of this Sublease or the Master Lease by Subtenant.
8.02 Subtenant’s
Insurance.
(a) Subtenant
shall, at its own expense, obtain and keep in force at all times during Sublease
Term the insurance required to be maintained by the tenant under Section
61.13.
of the Master Lease in relation to the Sublease Premises and Subtenant’s
activities in or around the Sublease Premises and the Building.
(b) Sublandlord
shall be named as additional insured on all policies required to be carried
by
Subtenant under this capitalized section.
(c) Upon
the approval of this Sublease by Master Landlord (and thereafter upon request
of
Sublandlord), Subtenant shall deliver to Sublandlord certificates of insurance
evidencing the insurance required to be maintained hereunder.
(d) If
Subtenant fails to procure and maintain the insurance required under this
Section 8.02, Sublandlord shall have the option, but not the obligation,
to
procure and maintain such insurance at Subtenant’s expense. Subtenant shall
reimburse Sublandlord within ten (10) days following demand for the costs
of
said insurance and any such amount shall be Additional Rent and may be collected
and enforced in same manner as rent. Subtenant acknowledges that Sublandlord
will not carry insurance on Subtenant’s furnishings, fixtures or equipment, and
Subtenant agrees that Sublandlord will not be obligated to repair any damage
thereto or replace the same whether or not such damage is caused by the acts
or
omissions of Sublandlord or otherwise.
ARTICLE
9
DEFAULTS
9.01 Subtenant
Default.
Subtenant shall be in default under this Sublease (“Default”)
if:
(a) Subtenant
fails to pay any rent or other amount due under this Sublease within ten
(10)
days after notice that the same is due;
(b) Subtenant
fails to comply with any provisions of the Master Lease or this Sublease
regarding the permitted use of the Sublease Premises and fails to cure such
failure within three (3) business days following delivery of notice from
Sublandlord or Master Landlord;
(c) Subtenant
fails to comply with any other provision of this Sublease and does not cure
such
failure within twenty (20) days after delivery of notice from Sublandlord,
provided, however, if the nature of such default is such that it cannot be
completed cured or remedied within said twenty (20) day period, provided
Subtenant diligently commences a cure of such default within said twenty
(20)
day period and thereafter pursues such cure in good faith and with reasonable
diligence, such 20 day cure period shall be extended for such reasonable
period
of time necessary to cure such default;
(d) Subtenant
violates any of the provisions of Section 10.04; or
(e) Subtenant
commits or permits any default as defined in Article 17 of the Master Lease
which is not cured within any notice and/or cure period provided for in said
Article 17.
9.02 Remedies
for Subtenant Default.
(a) In
the case of a Default by Subtenant, Sublandlord may:
(i) Terminate
this Sublease, recover the Sublease Premises and collect from Subtenant any
and
all rent remaining to be paid for the entire Sublease Term less any amounts
Subtenant proves could reasonably be recouped by re-subletting the Sublease
Premises, which difference shall be discounted at a rate equal to one (1)
whole
percentage point above the discount rate in effect on the date of payment
at the
Federal Reserve Bank nearest the Building;
(ii) Elect
not to terminate this Sublease and continue to collect all Rent and other
sums
under this Sublease as they come due;
(iii) Collect
from Subtenant any other actual and reasonable amount of damages (not
consequential) resulting from such Default by Subtenant, such as brokerage
fees,
buildout costs and/or improvement allowances;
(iv) Cure
such Default for or on behalf of Subtenant after five (5) business days’ written
notice to Subtenant, whereupon Subtenant shall reimburse to Sublandlord any
and
all costs and expenses of doing so within ten (10) days of demand, and such
amounts shall be deemed to be rent hereunder for all purposes;
and/or
(v) Avail
itself of any and all other remedies provided by law, at equity or
otherwise.
(b) The
above remedies shall be cumulative and not exclusive.
In
the event of a Default by Subtenant hereunder, following Subtenant’s delivery of
sole and exclusive possession of the Sublease Premises to Sublandlord,
Sublandlord agrees to use commercially reasonable efforts to mitigate its
damages, provided, however, Sublandlord shall not be required to expend any
amount of money either (a) to alter, remodel or otherwise make the Sublease
Premises suitable for use by a proposed Substitute Tenant or (b) for brokerage
commissions, so long as Sublandlord has requested and Subtenant has refused
to
pay any such sum to Sublandlord in advance of Sublandlord’s execution of a
substitute sublease with a subtenant (which payment shall not be in lieu
of any
damages or other sums to which Sublandlord may be entitled as a result of
Subtenant’s default under this Sublease).
9.03 Holding
Over. If
Subtenant fails to
surrender the Sublease Premises upon the expiration or sooner termination
of the
Sublease Term, this Sublease shall nevertheless terminate as of the expiration
or termination date, and Subtenant shall become a tenant at sufferance of
Master
Landlord. Subtenant shall indemnify and hold Sublandlord harmless from any
and
all holdover rent or other charges, penalties, damages or costs charged to,
imposed upon, suffered or incurred by Sublandlord (including, without
limitation, claims made against Sublandlord by Master Landlord or any parties
claiming under or through Master Landlord) as a result of Subtenant’s failure to
surrender the Sublease Premises on time.
ARTICLE
10
OTHER
PROVISIONS
10.01 Notices. Any
notice required or
permitted to be given hereunder shall be in writing and shall be sent by
hand
delivery, or by nationally recognized overnight express carrier addressed
to the
respective parties at the respective addresses noted below. Any such notice
shall be deemed to be delivered upon actual receipt (or refusal to accept
delivery) thereof. Either party may, by notice in writing so delivered to
the
other, specify a different address for notice purposes.
| Sublandlord: | Subtenant: |
| c/x Xxxxxxxx, Xxxxxxxx Xxxxxx & Co., Inc. | Innovive Pharmaceuticals, Inc. |
| 0000 00xx Xxxxxx Xxxxx, Xxxxx 000 | 000 Xxxxxxx Xxxxxx, 00xx Xxxxx |
| Xxxxxxxxx, Xxxxxxxx 00000 | Xxx Xxxx, Xxx Xxxx 00000 |
| Attention: Mr. Xxxx Xxxx | |
| With a copy of default notices to: | With a copy of default notices to: |
| Xxxxxxx X. Xxxxx, Esq. | Xxxx X. Xxxxxxx, Esq. |
| Grossberg, Yochelson, Fox & Xxxxx, LLP | Xxxxxxxx Xxxxxxx & Xxxxxxx LLP |
| 0000 X Xxxxxx, XX, Xxxxx 000 | 00 Xxxx 00xx Xxxxxx, 0xx Xxxxx |
| Xxxxxxxxxx, X.X. 00000 | Xxx Xxxx, Xxx Xxxx 00000 |
10.02 Signs. Subtenant
shall place no
sign, advertisement or notice visible from outside the Sublease Premises
without
prior written consent of Master Landlord. The size, color, style and design
of
any such signage shall be acceptable to Master Landlord and Sublandlord (in
their sole discretion), and such signage shall be at the sole cost and expense
of Subtenant. Sublandlord shall cooperate with Subtenant in transferring
the 20
building directory listings provided Sublandlord in Section 73 of the Master
Lease, recognizing that Subtenant shall be responsible for all costs and
expenses charged by Master Landlord in transferring (or changing) such building
listings.
10.03 Transfers.
(a) Sublandlord
may assign, transfer or convey this Sublease without any need to obtain the
consent or approval of Subtenant, provided, however, that Sublandlord shall
provide written notice to Subtenant of such assignment, transfer or conveyance
promptly following the same.
(b) Subtenant
shall not assign, encumber or in any way transfer this Sublease, nor further
sublet all or any part of the Sublease Premises, whether voluntarily,
involuntarily or by operation of law, nor permit the use or occupancy of
all or
art of the Sublease Premises by anyone other than Subtenant (collectively,
“Transfer”),
without Sublandlord’s prior written consent (not to be unreasonably withheld,
delayed or conditioned). Subject to Master Landlord’s consent, Subtenant shall
have the right to permit up to twenty percent (20%) of the rentable area
of the
Sublease Premises to be occupied, or used for desk space, mailing privileges,
or
otherwise to any person or entity which has a business relationship with
Subtenant.
(c) If
Subtenant shall sublease the Sublease Premises or assign this Sublease to
anyone
for rents, additional charges related to the value of the Sublease or other
consideration which for any period shall exceed the Rent payable under this
Sublease for the same period, Subtenant shall pay to Sublandlord, as Additional
Rent hereunder, fifty percent (50%) of any such rents, additional charges,
fees
or other consideration (net of any expenses of Subtenant reasonably related
to
making the Sublease Premises available for the sublessee or the assignee
such as
brokerage fees, reasonable attorneys’ fees, work improvements and improvement
allowances) which is in excess of the Rent accruing during the Sublease Term
(the “Transfer Premium”), recognizing that any sums payable by Subtenant to
Master Landlord under the Master Lease shall also be subtracted from the
Transfer Premium. The sums payable under this Section 10.04(c) shall be paid
to
Sublandlord as Additional Rent as and when payable by the subtenant or assignee
to Subtenant. It is expressly recognized and agreed that the terms and
provisions of this Section 10.03(c) shall not be applicable in connection
with a
Permitted Transfer (defined below) or to a sale of stock described in the
last
sentence of Section 10.03(d) below.
(d) So
long as Subtenant is not entering into the Permitted Transfer (defined below)
for the purpose of avoiding or otherwise circumventing the remaining terms
of
this Article, Subtenant may assign its entire interest under this Sublease
or
sublease all or a portion of the Sublease Premises, without the consent of
Sublandlord, to (i) an affiliate, subsidiary, or parent of Subtenant, or
a
corporation, partnership or other legal entity controlled by Subtenant
(collectively, an “Affiliated Party”), (ii) a successor to Subtenant by asset
acquisition, capital stock purchase, merger, consolidation or reorganization,
(iii) during the first two (2) Sublease Years, Paramount Biocapital Investments,
LLC, a Delaware limited liability company (“Paramount”), an Affiliated Party of
Paramount, a successor to Paramount by asset acquisition, capital stock
purchase, merger, consolidation or reorganization, or an Affiliated Party
of any
such successor, or (iv) Xxxxxxx Xxxxxxxxx or any entity in which Xxxxxxx
Xxxxxxxxx has at least a fifty-one percent (51%) ownership interest in, provided
that all of the following conditions are satisfied (each such transfer a
“Permitted Transfer”): (1) Subtenant is not in default under this Sublease
beyond the expiration of any applicable cure period; (2) Subtenant shall
give
Sublandlord written notice at least ten (10) days prior to the effective
date of
the proposed commencement of the assignment (except in any instance where
such
prior notice would violate applicable laws, particularly those promulgated
by
the Securities Exchange Commission, in which case notice shall be given as
soon
as permissible after such public notice is permissible); (3) with respect
to a
proposed Permitted Transfer to an Affiliated Party (defined below), Subtenant
continues to have a net worth which is at least equal to the greater of
Subtenant’s net worth at the date of this Sublease or Subtenant’s net worth as
of the day prior to the Permitted Transfer; and (4) with respect to a purchase,
merger, consolidation or reorganization or any Permitted Transfer which results
in Subtenant ceasing to exist as a separate legal entity, (a) Subtenant’s
successor shall own all or substantially all of the assets of Subtenant,
and (b)
Subtenant’s successor shall have a net worth which is at least equal to the
greater of Subtenant’s net worth at the date of this Sublease or Subtenant’s net
worth as of the day prior to the proposed purchase, merger, consolidation
or
reorganization. Subtenant’s notice to Sublandlord shall include information and
documentation showing that each of the above conditions has been satisfied.
If
requested by Sublandlord, Subtenant’s successor shall sign a commercially
reasonable form of assumption agreement, which assumption agreement shall
not
obligate such successor to assume any additional obligations as the Subtenant
hereunder beyond those provided for in this Sublease. As used herein, (A)
“parent” shall mean a company which owns a majority of Subtenant’s voting
equity; (B) “subsidiary” shall mean an entity wholly owned by Subtenant or at
least thirty-three percent (33.0%) of whose voting equity is owned by Subtenant;
and (C) “affiliate” shall mean an entity controlled by, controlling or under
common control with Subtenant. Notwithstanding the foregoing, if any parent,
affiliate or subsidiary to which this Sublease has been assigned or transferred
subsequently sells or transfers its voting equity or its interest under this
Sublease other than to an entity permitted above for which no consent is
required, such sale or transfer shall be deemed to be a transfer requiring
the
consent of Sublandlord hereunder. Notwithstanding anything in this Sublease
to
the contrary, Subtenant shall be permitted to sell its stock in connection
with
private placement offerings or on a recognized security exchange (i.e NYSE,
AMEX
or NASDAQ) without the consent of Sublandlord.
(e) In
no event shall the original named Tenant hereunder or the Guarantors (defined
below) be relieved of any liability hereunder by reason of any assignment
of
this Sublease, provided, however, the foregoing is not intended to modify
the
provision under which Paramount (as defined in the Guaranty) may be relieved
of
liability under the Guaranty.
(f) Notwithstanding
Sublandlord’s consent, any proposed Transfer shall also be subject to the
consent of Master Landlord under applicable provisions of the Master
Lease.
10.04 Attorney’s
Fees. In
the event of any
action or proceeding brought by either party hereto against the other based
upon
or arising out of any breach of the terms and conditions hereof, the prevailing
party shall be entitled to recover all costs, including reasonable attorneys’
fees, from the other.
10.05 Quiet
Enjoyment. Sublandlord
represents
that the Master Lease is in full force and effect and that, to the best of
Sublandlord’s knowledge, there are no defaults on Sublandlord’s part under the
Master Lease as of the date of this Sublease. Sublandlord agrees that, subject
to the provisions of this Sublease and the Master Lease, so long as Subtenant
is
not in default hereunder or breach hereof, Subtenant shall quietly enjoy
the
Sublease Premises for the Sublease Term.
10.06 Waiver. The
waiver by a party of
a breach of any term in this Sublease shall not be deemed to be a waiver
of any
subsequent breach of the same or any other term of this Sublease. The subsequent
acceptance of rent by Sublandlord or payment of rent by Subtenant shall not
be
deemed to be a waiver of any preceding breach by the other party of any term
of
this Sublease, other than the failure of Subtenant to pay the particular
rental
so accepted, regardless of Sublandlord’s knowledge of such preceding breach at
the time Sublandlord accepts such rent.
10.07 Brokers’
Fees. Subtenant
warrants and
represents that it has not dealt with any real estate broker or agent in
connection with this Sublease other than CB Xxxxxxx Xxxxx (“Sublandlord’s
Broker”) and Xxxxxxx Realty Company, Inc. (“Subtenant’s Broker”). Subtenant
shall indemnify and hold Sublandlord harmless from any cost, reasonable expense
or liability (including, without limitation, costs of suit and reasonable
attorneys’ fees) for any compensation, commission or fees claimed by any real
estate broker or agent on behalf of Subtenant in connection with this Sublease
other than Sublandlord’s Broker and Subtenant’s Broker. Sublandlord shall
indemnify and hold Subtenant harmless from any cost, reasonable expense or
liability (including, without limitation, costs of suit and reasonable
attorneys’ fees) for any compensation, commission or fees claimed by any real
estate broker or agent on behalf of Sublandlord in connection with this Sublease
other than Sublandlord’s Broker and Subtenant’s Broker. Sublandlord agrees to
compensate Sublandlord’s Broker and Subtenant’s Broker pursuant to the terms and
conditions of a separate written agreement.
10.08 Entire
Agreement. This
Sublease, including
all exhibits hereto, contains the entire agreement between the parties with
respect to the subject matter herein, and no representations, inducements,
promises or agreements, oral or otherwise, not expressly stated herein shall
be
of any force or effect.
10.09 Submission. Submission
of this
instrument for examination or signature by Subtenant shall not be construed
as
an offer and shall not be effective as a Sublease or otherwise until executed
by
both Subtenant and Sublandlord, and a fully-executed original delivered to
Subtenant.
10.10 Authority
and Counterparts. Each
party represents and
warrants that its respective signatory is duly authorized to execute and
deliver
this Sublease, and to bind the person for which such signatory signs. This
Sublease may be signed in counterparts, each of which shall be equivalent
to a
signed original, and which together shall form one and the same
instrument.
10.11 Successors
and Assigns. Each
provision hereof
shall be binding on and inure to the benefit of the parties and their respective
agents, employees, successors and permitted assigns, provided that other
than in
connection with a Permitted Transfer this Sublease shall not inure to the
benefit of any assignee or transferee of Subtenant except with Sublandlord’s and
Master Landlord’s written consent.
10.12 Governing
Law and Jurisdiction. This
Sublease shall be
governed by the laws of the State of New York (without regard to conflicts
of
laws principles).
10.13 Guaranty. Paramount,
and Xxxxxx
Xxxxx (collectively, the “Guarantors”) have joined in the execution and delivery
to Sublandlord of that certain Guaranty in the form attached hereto and made
a
part hereof being designated as Exhibit “B” (herein the “Guaranty”), for the
purpose of guaranteeing certain of the obligations, duties and covenants
of the
Subtenant under this Sublease, subject to the limitations set forth in such
Guaranty. Subtenant represents and warrants to Sublandlord that both of the
Guarantors are materially benefited by reason of the provision of this Sublease
to Subtenant. The parties recognize and agree that Sublandlord has materially
relied upon such Guaranty and the financial statements of Guarantors heretofore
delivered to Sublandlord in its execution and delivery of this Sublease.
Subtenant hereby represents and warrants to Sublandlord that such financial
statement is true and correct in all material respects as of the date designated
therein and that to its knowledge, no change has occurred to the assets or
liabilities of the Guarantor since the date of such statement which would
render
such statement to be misleading in any material respect.
[signatures
on next page]
IN
WITNESS WHEREOF
the parties have executed this Sublease as of the date first above
written.
SUBLANDLORD:
FRIEDMAN,
BILLINGS, XXXXXX GROUP, INC.,
a
Virginia corporation
By:_____________________________
_____________________________
(print
name)
Its:_____________________________
(print
title)
Address:
Xxxxxxxx
Billing Xxxxxx & Co., Inc.
0000
00xx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx,
Xxxxxxxx 00000
A
copy of each notice of default shall also be sent to:
Xxxxxxx
X. Xxxxx, Esq.
Grossberg,
Yochelson, Fox & Xxxxx, LLP
0000
X Xxxxxx, XX, Xxxxx 000
Xxxxxxxxxx,
X.X. 00000
SUBTENANT:
a
Delaware corporation
By:_____________________________
Xxxxxx
Xxxxx, President
Address:
_____________________________
_____________________________
_____________________________
LIST
OF EXHIBITS:
Exhibit
A: Master
Lease
Exhibit
B: Guaranty
Exhibit
C: Letter
of Credit
EXHIBIT
A
MASTER
LEASE
EXHIBIT
B
GUARANTY
In
order to induce XXXXXXXX, BILLINGS, RAMSEY, GROUP, INC., (“Sublandlord”) to
execute and deliver that certain Sublease (the “Sublease”) between Sublandlord
and INNOVIVE PHARMACEUTICALS, INC., a Delaware corporation (“Tenant”) for the
premises (the “Sublease Premises”) more particularly described in the Sublease,
and in consideration thereof, the undersigned PARAMOUNT BIOCAPITAL INVESTMENTS,
LLC, a Delaware limited liability company (“Paramount”) and XXXXXX XXXXX, an
individual (“Individual Guarantor”)) (Paramount and the Individual Guarantor are
collectively referred to herein as the “Guarantor”) hereby unconditionally,
absolutely and irrevocably guaranty to Sublandlord, and its successors and
assigns, the prompt and full payment by Subtenant of each and every item
of Base
Rent, Operating Payments, Tax Payments and Electricity to be paid by Subtenant
under the Sublease, together with any and all costs and expenses, including
reasonable attorneys’ fees, which may be incurred by Sublandlord in connection
with any default beyond any applicable notice or grace period by Subtenant
under
the Sublease or enforcing the Sublease and/or this Guaranty (collectively
the
“Obligations”). Guarantor expressly acknowledges that he, she or it has reviewed
the Sublease and understands the same. If there is more than one Guarantor,
the
terms and conditions of this Guaranty shall apply to all Guarantors jointly
and
severally. The liability of Guarantor is coextensive with that of Subtenant
and
also joint and several, and legal action may be brought against Guarantor
and
carried to final judgment either with or without making Subtenant or any
assignee or successor thereof as a party thereto.
The
undersigned further covenants and agrees that Sublandlord may at any time
or
from time to time, in its sole and absolute unfettered discretion, without
notice to the undersigned:
(a) Extend,
or provided any change does not accelerate in any material manner the date
due
for rental payments, change the time of payment of any rent due under the
Sublease or any other payment required to be made by Subtenant under said
Sublease, or the manner, place, or terms of performance or observance of
any of
the terms, covenants, conditions, provisions or obligations to be kept, observed
or performed by Subtenant under the Sublease; and/or
(b) Modify
any of the terms, covenants, conditions or provisions of the Sublease, or
waive
compliance with any of the terms, covenants, conditions, provisions or
obligations under the Sublease, provided, however, that in the event there
are
any material changes in the financial obligations of Subtenant under the
Sublease which are not approved in writing by Paramount, Paramount’s liability
shall be limited to the financial obligations contained in the original Sublease
and any amendments approved in writing by Paramount.
Payment
by the undersigned under this Guaranty is to be made without requiring any
proceedings to be taken against Subtenant for the collection of any amounts
owed
by Subtenant under the Sublease. The undersigned hereby completely and fully
waives (a) notice of acceptance of this Guaranty, (b) presentment for payment,
(c) notice of dishonor or default of Subtenant under the Sublease, (d) protest
and notice of protest thereof, (e) any right of setoff, counterclaim or
deduction against amounts due under this Guaranty, (f) the right to interpose
all substantive and procedural defenses of the law of guaranty, indemnification
and suretyship, except the defenses of prior payment or prior performance,
and
(g) the benefit of any statute of limitations affecting Guarantor’s liability
under this Guaranty.
Without
limiting the generality of the foregoing, the liability of the undersigned
under
this Guaranty shall not be deemed to have been waived, released, discharged,
impaired or affected by (a) reason of any waiver or failure to enforce or
delay
in enforcing any of the Obligations, or (b) the granting of any indulgence
or
extension of time to Subtenant, or (c) the assignment of the Sublease, or
the
subletting of the Sublease Premises by Subtenant, with or without Sublandlord’s
consent, or (d) the expiration of the Sublease Term, or (e) if Subtenant
holds
over beyond the Sublease Term, or (f) any merger or reorganization of the
release or discharge of Subtenant or any other guarantor in any voluntary
or
involuntary receivership, bankruptcy, winding-up or other creditors’
proceedings, or (g) the rejection, disaffirmance or disclaimer of the Sublease
by any party in any action or proceeding, or (h) the release of any collateral
held for the Obligations or release of the Guarantor or any other guarantor,
or
(i) any defect or invalidity of the Sublease. The liability of the Guarantor
shall not be affected by any repossession, re-entry or re-letting of the
Sublease Premises by Sublandlord.
This
Guaranty shall be binding upon the undersigned, his or its respective
successors, assigns, personal or legal representatives and heirs, and shall
inure to the benefit of Sublandlord and Sublandlord’s successors and
assigns.
This
Guaranty shall remain in full force and effect until the payment of all of
the
Obligations (whether or not the Sublease shall have been terminated). Until
the
payment of all the Obligations, Guarantor: (a) shall have no right of
subrogation against Subtenant by reason of any payments or acts of performance
by the Guarantor in compliance with the obligations of the Guarantor under
this
Guaranty; (b) waives any right to enforce any remedy which Guarantor now
or
hereafter shall have against Subtenant by reason of any one or more payments
or
acts of performance in compliance with the obligations of Guarantor under
this
Guaranty; and (c) subordinates any liability or indebtedness of Subtenant
now or
hereafter held by Guarantor to the obligations of Subtenant to the Sublandlord
under the Sublease.
The
terms, covenants, conditions and obligations contained in this Guaranty may
not
be waived, changed, modified, discharged, or abandoned, except by agreement
in
writing, signed by the party or parties against whom enforcement of any waiver,
change, modification, discharge or abandonment is sought. Guarantor agrees
that
it will, from time to time, within ten (10) days after Sublandlord’s request,
execute and deliver a statement certifying that this Guaranty is unmodified
and
in full force and effect (if such statement is correct).
All
notices or other communications to be provided pursuant to this Guaranty
shall
be in writing and shall be deemed to be properly served if sent by registered
or
certified mail or Federal Express or similar courier service with overnight
delivery or via professional messenger service (with receipt therefor) or
by
certified or registered mail, return receipt requested, (i) if to Sublandlord,
c/x Xxxxxxxx Billing Xxxxxx & Co., Inc., 0000 00xx Xxxxxx Xxxxx, Xxxxx 000,
Xxxxxxxxx, Xxxxxxxx 00000, and (ii) if to Guarantor, at the address set forth
below, together with a copy of default notices to: Gerstein Xxxxxxx &
Xxxxxxx LLP, 00 Xxxx 00xx Xxxxxx, XX, XX 00000, 9th floor, Attn: Xxxx X.
Xxxxxxx, Esq. All notices or other communications to be provided pursuant
to
this Guaranty sent by certified or registered mail, return receipt requested,
first-class postage prepaid shall be deemed effective when they are mailed,
otherwise such notices shall be effective upon receipt.
Waiver
of Jury Trial. GUARANTOR
HEREBY WAIVES
ANY RIGHT TO A TRIAL BY JURY ON ANY OR ALL ISSUES ARISING IN ANY ACTION OR
PROCEEDING BETWEEN SUBLANDLORD AND GUARANTOR OR THEIR SUCCESSORS, ASSIGNS,
PERSONAL OR LEGAL REPRESENTATIVES AND HEIRS UNDER OR IN CONNECTION WITH THIS
GUARANTY OR ANY OF ITS PROVISIONS. THIS WAIVER IS KNOWINGLY, INTENTIONALLY
AND
VOLUNTARILY MADE BY GUARANTOR, AND GUARANTOR ACKNOWLEDGES THAT SUBLANDLORD
NOR
ANY PERSON ACTING ON BEHALF OF SUBLANDLORD HAS MADE ANY REPRESENTATIONS OF
FACT
TO INDUCE THIS WAIVER OF TRIAL BY JURY OR IN ANY WAY TO MODIFY OR NULLIFY
ITS
EFFECT. GUARANTOR FURTHER ACKNOWLEDGES THAT HE, SHE OR IT HAS HAD THE
OPPORTUNITY TO DISCUSS THIS GUARANTY WITH LEGAL COUNSEL.
Notwithstanding
anything in this Guaranty to the contrary, the Individual Guarantor liability
hereunder shall be limited to the payment of
(a) the
rentals payable by Subtenant under the Sublease for the period elapsing during
the Sublease Term through the date of Subtenant’s surrender to Sublandlord of,
or recovery by Sublandlord of, sole and exclusive possession of the Sublease
Premises, plus
(b) the
reasonable attorneys fees and court costs incurred to enforce the Sublandlord’s
rights against the Individual Guarantor (the “Enforcement
Obligation”).
In
the event of a Transfer, provided Subtenant is not then in default under
the
Sublease beyond the expiration of any applicable cure period, Sublandlord
shall
release the Individual Guarantor of all further liability hereunder in the
event
a principal of the transferee, reasonably acceptable to Sublandlord, agrees
to
assume the obligations of the Individual Guarantor hereunder and to execute
such
documents as are reasonably necessary in Sublandlord’s reasonable judgment to
confirm such assumption.
Notwithstanding
anything in this Guaranty to the contrary, provided there is then no Default
by
Subtenant under the Sublease, Paramount shall be fully relieved of all liability
under this Guaranty upon the earlier of (i) the expiration of the second
Sublease Year (as defined in the Sublease) or (ii) the date Sublandlord is
provided reasonably satisfactory evidence that following the date of the
Sublease Subtenant has closed on financing which provides Subtenant net proceeds
of not less than Five Million Dollars ($5,000,000.00).
IN
WITNESS WHEREOF, the undersigned has executed this Guaranty under seal as
of the
_____ day of February, 2005.
| GUARANTOR(S): | ||
| PARAMOUNT BIOCAPITAL INVESTMENTS, LLC | ||
| |
|
|
| ______________________________ | By: | ______________________________ (SEAL) |
| Witness:_______________________ | Name:______________________________ | |
| Title:______________________________ | ||
|
Address:
000
Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
|
||
| |
|
|
| ______________________________ | ______________________________ (SEAL) | |
| Witness:_______________________ | Xxxxxx Xxxxx | |
| Social Security #: ###-##-#### | ||
| Home Address: 00 Xxxxxx Xxxxxx, #0 | ||
| Xxx Xxxx, Xxx Xxxx 00000 | ||
EXHIBIT
C
LETTER
OF CREDIT
FLEET
NATIONAL BANK
FLEET
GLOBAL TRADE OPERATIONS
STANDBY
XXXX
0
XXXXX XXX
XXXXXXXX,
XX 00000-0000
DATE:
IRREVOCABLE
STANDBY LETTER OF CREDIT NUMBER
____________________________________
BENEFICIARY:
FRIEDMAN, BILLINGS, XXXXXX GROUP, INC., a Virginia corporation
APPLICANT:
INNOVIVE PHARMACEUTICALS, INC., a __________ corporation
AMOUNT:
$104,994.00
EXPIRY
DATE:
EXPIRE
PLACE: OUR COUNTERS
GENTLEMEN:
WE
HEREBY ISSUE THIS IRREVOCABLE LETTER OF CREDIT NO. __________ IN
YOUR FAVOR, FOR THE ACCOUNT OF __________ FOR UP TO AN AGGREGATE AMOUNT OF
ONE
HUNDRED FOUR THOUSAND NINE HUNDRED NINETY-FOUR AND NO/100 U.S. DOLLARS
($104,994.00) AVAILABLE BY YOUR DRAFT(S) DRAWN ON US AT SIGHT, ACCOMPANIED
BY
THE FOLLOWING:
1.
THE ORIGINAL OF THIS STANDBY LETTER OF CREDIT AND AMENDMENT(S) IF
ANY.
2.
BENEFICIARY’S WRITTEN, DATED STATEMENT ON BENEFICIARY LETTERHEAD PURPORTEDLY
SIGNED BY AN AUTHORIZED OFFICER/ REPRESENTATIVE READING:
QUOTE
(A)
BENEFICIARY IS PERMITTED TO DRAW ON THIS LETTER OF CREDIT UNDER THE EXPRESS
TERMS OF THE SUBLEASE DATED __________, BY AND BETWEEN __________ AND
__________, AND (B) THE AMOUNT OF THE ACCOMPANYING SIGHT DRAFT DOES NOT EXCEED
THE AMOUNT THAT THE BENEFICIARY IS AUTHORIZED TO DRAW UNDER THIS LETTER OF
CREDIT AS PER THE EXPRESS TERMS OF THE SAID LEASE DUE TO A DEFAULT BT APPLICANT
UNDER SAID LEASE BEYOND ANY APPLICABLE GRACE AND NOTICE PERIOD.
UNQUOTE
PARTIAL
DRAWINGS MAY BE MADE UNDER THIS LETTER OF CREDIT, PROVIDED HOWEVER, THAT
EACH
SUCH DEMAND THAT IS PAID BY US SHALL REDUCE THE AMOUNT AVAILBLE UNDER THIS
LETTER OF CREDIT.
IT
IS A CONDITION OF THIS LETTER OF CREDIT THAT IT SHALL BE AUTOMATICALLY EXTENDED
WITHOUT AMENDMENT FOR PERIOD(S) OF ONE YEAR EACH FROM THE CURRENT OR ANY
FUTURE
EXPIRATION DATE UNLESS AT LEAST THIRTY (30) DAYS PRIOR TO THE THEN CURRENT
EXPIRATION DATE WE SHALL NOTIFY THE BENEFICIARY IN WRITING, VIA REGISTERED
MAIL,
AT THE ABOVE LISTED ADDRESS OF OUR INTENTION NOT TO RENEW THIS LETTER OF
CREDIT.
IN
ANY EVENT THIS LETTER OF CREDIT WILL NOT BE AUTOMATICALLY EXTENDED BEYOND
THE
FINAL EXPIRATION DATE OF __________
DRAFT(S)
MUST STATE: “DRAWN UNDER FLEET NATIONAL BANK STANDBY L/C NO. __________ DATED
_______________.”
THIS
LETTER OF CREDIT IS TRANSFERABLE IN FULL AND NOT IN PART. ANY TRANSFER MADE
HEREUNDER MUST CONFORM STRICTLY TO THE TERMS HEREOF AND TO THE CONDITIONS
OF
ARTICLE 48 OF THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS (1993
REVISION) FIXED BY THE INTERNATIONAL CHAMBER OF COMMERCE, PUBLICATION NO.
500.
SHOULD
BENEFICIARY WISH TO EFFECT A TRANSFER UNDER THIS CREDIT, SUCH TRANSFER WILL
BE
SUBJECT TO THE RETURN TO US OF THE ORIGINAL CREDIT INSTRUMENT, ACCOMPANIED
BY
OUR FORM OF TRANSFER, PROPERLY COMPLETED AND SIGNED BY AN AUTHORIZED SIGNATORY
OF BENEFICIARY’S FIRM, WITH SUCH AUTHORIZED SIGNATORY’S SIGNATURE NOTARIZEDAND
SUBJECT TO APPLICANT’S PAYMENT OF OUR CUSTOMARY TRANSFER CHARGES OF 1/4 OF 1%
MINIMUM $ 250.00.
DRAFTS
AND DOCUMENTS MUST BE PRESENTED AT OUR OFFICE PERSONALLY OR BY FACSIMILE
ADDRESSED: FLEET NATIONAL BANK, XXX XXXXX XXX, XXXXXXXX, XX 00000-0000, ATTN:
TRADE SERVICES DEPT. - STANDBY UNIT, FAX NO: ____________.
WE
HEREBY AGREE WITH YOU THAT DRAFT(S) DRAWN UNDER AND IN COMPLIANCE WITH THE
TERMS
OF THIS LETTER OF CREDIT SHALL BE DULY HONORED UPON DUE PRESENTATION TO
US.
EXHIBIT
“D”
MASTER
LANDLORD CONSENT
To
be attached
