EXHIBIT 2.11
REAL ESTATE MATTERS AGREEMENT
This Real Estate Matters Agreement (the "Agreement") is entered into as of
the _____ day of ___________, 2000 by and between DSM, N.V., a corporation
organized under the laws of the Netherlands ("DSM"), Catalytica, Inc., a
Delaware corporation ("Catalytica") and Catalytica Energy Systems, Inc.
("CESI"), a Delaware corporation. Capitalized terms used herein and not
otherwise defined herein shall have the meanings ascribed to such terms in the
Plan of Merger (as defined below).
RECITALS
WHEREAS, Catalytica, Synotex Company, Inc., ("Synotex") a Delaware
corporation and a wholly-owned subsidiary of DSM, and Synotex Acquisition
Corporation, ("Merger Sub") a Delaware corporation, have entered into that
certain Agreement and Plan of Merger dated as of August 2, 2000 wherein the
Merger Sub will be merged with and into Catalytica, the separate existence of
Merger Sub shall cease and Catalytica shall continue as the surviving
corporation under the name DSM Catalytica Pharmaceuticals, Inc. (the "Plan of
Merger").
WHEREAS, as a part of the Plan of Merger, CESI shall be spun-out of
Catalytica and become a wholly separate public company.
WHEREAS, the parties desire to set forth certain agreements regarding the
real property located at 000 Xxxxxxxx Xxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx (the
"Premises"); including that (i) the lease for the Premises shall be assigned to
CESI by Catalytica; (ii) CESI shall agree to enter into a space sharing
agreement with Catalytica; (iii) the necessary consents from the landlord under
the lease shall be obtained; and (iv) certain transfers of personal property
shall occur between CESI and Catalytica on the terms and conditions contained in
this Agreement.
NOW THEREFORE, in consideration of the mutual promises and agreements
herein set forth, DSM and Catalytica, intending to be legally bound, hereby
agree as follows:
ARTICLE I
1.1 Assignment. Catalytica has assigned to CESI and CESI has accepted
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all of Catalytica's interest in, and assumed certain liabilities of Catalytica
under that certain lease for the Premises entered into as of January 1, 1993, as
amended by that certain First Amendment to Lease dated October 23, 1997 and that
certain Second Addendum to Lease dated June 29, 1998, by and between Xxxx Xxxxxx
Associates as landlord and Catalytica as tenant (the "Assignment"). A copy of
the executed Assignment of Lease is attached hereto as Exhibit A.
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1.2 Consent to Assignment. Xxxx Xxxxxx Associates has agreed and
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consented to the Assignment. A copy of Xxxx Xxxxxx Associates' signed consent is
attached as Exhibit B.
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1
1.3 Space Sharing Agreement. CESI shall grant to Catalytica, subject to
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consent of Xxxx Xxxxxx Associates, the right to occupy a portion of the Premises
and Catalytica shall accept the same, pursuant to that certain Space Sharing
Agreement by and between CESI and Catalytica, the form of which is attached
hereto as Exhibit C.
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1.4 Transfer of Assets. Catalytica and CESI agree to transfer the
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personal property identified on Exhibit D attached on the terms and conditions
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of the Xxxx of Sale attached as Exhibit D.
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ARTICLE II
2.1 This Agreement shall constitute the entire Agreement between the
parties with respect to the subject matter hereof and supersede all previous
communications, representations, understandings and agreements, either written
or oral, between the parties.
2.2 If any provision of this Agreement shall be held to be invalid and
unenforceable to any extent, the remainder of this Agreement shall not be
affected thereby and each provision shall be valid and shall be enforced to the
highest extent permitted by law.
2.3 This Agreement shall be modified only by an instrument in writing
executed by duly authorized representatives of the parties thereto.
2.4 This Agreement may be executed in counterparts, each of which shall be
deemed to be an original, but all of which shall constitute one and the same
agreement. A signature received by facsimile shall be deemed an original for
the purposes of this Agreement.
[signatures appear on next page]
-2-
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized representatives as of the day and year set forth above.
DSM, N.V.
By: _________________________________
Name: ________________________________
Title: _______________________________
CATALYTICA, INC.
By: _________________________________
Name: ________________________________
Title: _______________________________
CATALYTICA ENERGY SYSTEMS, INC.
By: _________________________________
Name: ________________________________
Title: _______________________________
-3-
EXHIBIT A
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ASSIGNMENT OF LEASE
[attached]
-4-
EXHIBIT B
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CONSENT OF LANDLORD
[attached]
-5-
EXHIBIT C
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SUBLEASE
[attached]
-6-
EXHIBIT D
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XXXX OF SALE AND PERSONAL PROPERTY LIST
[to be attached]
-7-
XXXX OF SALE
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For good and valuable consideration the receipt of which is hereby
acknowledged, Catalytica, Inc., a Delaware corporation ("Seller"), does hereby
sell, transfer, and convey to Catalyitca Energy Systems, Inc., a Delaware
corporation, or its designated assignee ("Buyer"), all personal property owned
by Seller identified on Schedule 1 attached hereto ("Personal Property").
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Seller does hereby represent to Buyer that Seller is the lawful owner of
such Personal Property and that Seller has good right to sell the same as
aforesaid and will warrant and defend the title thereto unto Buyer, its
successors and assigns, against the claims and demands of all persons
whomsoever.
SELLER:
Catalytica, Inc.
a Delaware corporation
By: _______________________________________
Its: _______________________________________
DATED this _____ day of ___________, 2000.
-8-
Schedule 1
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Personal Property
-9-
SPACE SHARING AGREEMENT
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THIS SPACE SHARING AGREEMENT (this "Agreement") is dated for reference
purposes as of ________ ____, 2000, and is made by and between Catalytica
Energy Systems, Inc., a _________ corporation ("CESI"), and Catalytica, Inc. a
Delaware corporation ("Catalytica"). CESI and Catalytica agree as follows:
RECITALS:
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A. Xxxx Xxxxxx Associates, a California general partnership ("Master
Lessor") and Catalytica, Inc., a Delaware corporation ("Catalytica"), entered
into a Lease dated January 1, 1993 ("Lease"), respecting certain premises (the
"Premises") located at 000 Xxxxxxxx Xxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx, as amended
by that certain First Addendum to Lease dated October 23, 1997 ("First
Addendum"), that certain Second Addendum to Lease dated June 29, 1998 ("Second
Addendum"), that certain consent letter by Master Lessor and Catalytica dated
September 13, 2000 and that certain Assignment of Lease ("Assignment Agreement")
dated September 13, 2000 (collectively the "Master Lease"). Terms not otherwise
defined herein shall have the same meaning as in the Master Lease.
B. Catalytica assigned its interest in the Master Lease to a predecessor
of CESI pursuant to the Assignment Agreement. A copy of all of the documents
constituting the Master Lease are attached hereto as Exhibit A. CESI desires to
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grant occupancy to Catalytica and Catalytica desires to occupy that portion of
the Industrial Center depicted on Exhibit B to this Agreement ("Final Occupancy
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Premises").
C. The parties to this Agreement acknowledge that, as of the date of this
Agreement, they are affiliates and have each occupied a portion of the Demised
Premises. The purpose of this Agreement is to provide for a division of the
space currently occupied by the parties and to identify procedures that shall
apply between the parties regarding the Demised Premises when they are no longer
affiliates.
AGREEMENT:
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1. Occupancy Premises: Subject to the terms and conditions set forth
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herein, Catalytica agrees to occupy the Final Occupancy Premises consisting of
10,910 square feet of laboratory space ("Lab Space") and 10,310 square feet of
office space ("Office Space") shown on Exhibit B. Catalytica shall also be
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permitted to use the parking areas associated with the Final Occupancy Premises
on a non-exclusive basis. Catalytica acknowledges that on the Commencement Date
(defined below), it shall occupy only a portion of the Final Occupancy Premises
as identified on Exhibit C (the "Initial Occupancy Premises"), and that CESI
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will make available to Catalytica the remainder of the Final Occupancy Premises
within six (6) months following the Commencement Date (the later delivered space
referred to as the "Remainder Space"). The parties acknowledge that CESI will
use its reasonable best efforts to deliver portions of the Remainder Space to
Catalytica as rapidly as reasonably practicable. Upon delivery of any of the
Remainder Space by CESI to Catalytica, such space shall be deemed
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a portion of the Final Occupancy Premises for the purposes of this Sublease and
the payment of Base Rent (as defined in paragraph 6).
2. Use: The Final Occupancy Premises shall be used for general office,
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chemical and biological laboratories, pilot plants, light manufacturing, and
other related activities and for no other purpose without Master Lessor's and
CESI's prior written consent. CESI and Catalytica expressly acknowledge that
any use as a biological laboratory is expressly subject to Catalytica obtaining
all required permits and licenses relative to the activities Catalytica proposes
to conduct on the Demised Premises.
3. Term: The initial term ("Term") of this Agreement shall commence on
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_______ ___, 2000 ("Commencement Date"), and shall terminate on the earliest to
occur of: (a) _______,___ 2003, (b) the date this Agreement is sooner terminated
pursuant to its terms, or (c) the date the Master Lease is sooner terminated
pursuant to its terms. This Agreement may be extended beyond the Term, for such
period as the parties shall agree, in accordance with Section 15 of this
Agreement.
4. Condition of Premises: CESI makes no representations or warranties of
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any kind or nature, express or implied, with respect to the condition or fitness
for use of the Initial Occupancy Premises as between CESI and Catalytica,
Catalytica accepts the Initial Occupancy Premises "as is"; provided that CESI
equipment, if any, will be removed from the Final Occupancy Premises in an
orderly manner without damage to such Final Occupancy Premises.
5. Separation and Delivery Premises: Catalytica acknowledges that the
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Final Occupancy Premises are not physically separated from the remainder of the
building, and equipment and other improvements will have to be moved in order to
accommodate Catalytica in the Final Occupancy Premises. Catalytica and CESI
agree that CESI shall perform the improvements and that the parties shall in
good faith determine the appropriate method for moving equipment in accordance
with a plan mutually agreed to by CESI and Catalytica shall be subject to the
consent of Master Lessor and CESI on the terms and conditions set forth in this
Agreement (and the Master Lease as incorporated into this Agreement). Unless
otherwise agreed by Catalytica shall pay all costs associated with the removal
of equipment from the Final Occupancy Premises and the restoration of the Final
Occupancy Premises upon completion of such removal, provided, however, such
costs shall be limited to CESI's out-of-pocket costs for construction/demolition
work associated with such removal and restoration (including, if such
construction and demolition work is performed by CESI employees, a reasonable
charge for the work performed by such employees), and not costs for the mere
relocation of equipment. Except as otherwise set forth in the previous
sentence, the parties each party shall bear its own costs associated with the
moving of equipment and of related activities.
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6. Rent:
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(a) Base Rent. During the first year of the Term, Catalytica shall
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pay to CESI as base monthly rent ("Base Rent") $2.90 per square foot for the
Office Space (at a rate of $.88 per square foot for monthly rent under the
Master Lease and $2.02 for costs for Included Services as defined in Paragraph
6(d) below) and $6.50 per square foot for the Lab Space (at a rate of $.88 per
square foot for monthly rent under the Master Lease and $5.62 for costs for
Included Services as defined in Paragraph 6(d) below), for a total monthly Base
Rent upon delivery by CESI of full occupancy of the Final Occupancy Premises of
($100,292.00). The parties acknowledge pursuant to Paragraph 1 above that until
full occupancy of Final Occupancy Premises is delivered, Catalytica shall only
pay Base Rent on those portions of the Final Occupancy Premises delivered by
CESI for occupancy by Catalytica. The details associated with the calculation
of the foregoing amounts, including the categories for particular charges paid
by CESI, are attached hereto as Exhibit E, which is incorporated herein by
reference. On the first anniversary of the Term, CESI shall have the right to
increase the portions of the Base Rent representing the Included Services by up
to ten percent (10%) based on the increase in the cost to CESI of such Included
Services during the first year of the Term, as reasonably determined by CESI.
On the second anniversary of the Term, CESI shall have the right to increase the
portions of the Base Rent representing the Included Services by up to ten
percent (10%) over those costs charged during the second year of the Term based
on CESI's reasonable determination of the increase in the cost to CESI of such
Included Services during the second year of the Term.
Base Rent and Additional Rent (as defined in subparagraph 5(c) hereof),
except as otherwise set forth in subparagraph 5(c) hereof, shall be paid to CESI
on or before the first (1st) day of each month during the Term. Base Rent and
Additional Rent (as defined in subsection (c) below) (collectively, "Rent") for
any period during the Term hereof which is for less than one month of the Term
shall be a pro rata portion of the monthly installment based on the actual
number of days in such month. Rent shall be payable without notice or demand
and without any deduction, offset, or abatement except as expressly set forth
herein, in lawful money of the United States of America. Subject to the notice
provision for Additional Rent as provided in subsection 6(c) 6(b), Rent shall be
paid directly to CESI at 000 Xxxxxxxx Xxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx 00000,
Attention: Accounts Receivable, or such other address as may be designated in
writing by CESI. At least thirty (30) days prior to the applicable anniversary
of the Term, CESI shall advise Catalytica in writing of CESI's determination of
the change in the Included Services (as hereafter defined) and the Base Rent.
Unless Catalytica advises CESI within twenty (20) days of Catalytica's receipt
of such notice that Catalytica desires an audit of such calculation, such
determination shall be final. If Catalytica requests an audit, the parties
shall cooperate and shall expedite the completion of such audit and shall in
good faith reach agreement on the new Base Rent. Until agreement is reached,
Catalytica shall pay the new Base Rent determined by CESI; after the mutually
acceptable Base Rent is determined, the parties shall make a retroactive
adjustment, to account for the difference in the amount paid by Catalytica and
the amount of the new Base Rent.
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(b) Additional Rent. All monies other than Base Rent required to be
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paid by Catalytica under this Agreement with respect to the Final Occupancy
Premises, including, without limitation, those charges incorporated into this
Agreement pursuant to the incorporation provisions set forth in Paragraph 9 of
this Agreement or otherwise set forth in this Agreement shall be deemed
additional rent ("Additional Rent"). Catalytica shall pay such amounts of
Additional Rent to CESI no later than ten (10) business days after written
demand therefor by CESI.
(c) Services. CESI agrees to provide and to include the costs of the
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following services as part of the Base Rent ("Included Services"): (i)
electricity, gas, sewer, telephone, janitorial and garbage services; (ii) office
supplies; (iii) photocopiers; (iv) hazardous waste management services
(excluding disposal costs which will be directly billed to Catalytica); (v)
shipping and receiving services; (vi) security (including security badge
issuance) and fire systems; (v) repair and maintenance of the Final Occupancy
Premises (excluding, however, Catalytica's personal property in the Final
Occupancy Premises, the heating and cooling units used for Catalytica's
laboratory equipment located on the pad outside the building, and any damage to
the Final Occupancy Premises caused by Catalytica); "real property taxes" and
payments to Master Lessor to reimburse Master Lessor for Master Lessor's
insurance obligations under the Master Lease; (vii) telephone services
(provided, however, that (a) CESI shall have the right to xxxx Catalytica
separately for long distance charges and (b) the costs for use of any T-1 lines
between the Final Occupancy Premises and any other location shall be paid for by
Catalytica, in excess of the amount allocated for both such items as reflected
in Exhibit E or the applicable revision thereof given annually to show the
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change in Base Rent); and (viii) reception services. CESI shall not be
obligated to provide the Included Services in an amount or type not summarized
on Exhibit E hereof. The parties acknowledge that the precise level of services
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to Catalytica hereunder will not be capable of final resolution until Catalytica
has fully occupied the Final Occupancy Premises. The level of services shall
reflect the allocations made pursuant to Exhibit E. The parties agree to
evaluate from time to time the levels of services provided to Catalytica and to
adjust the charges for Individual Services, and thus Base Rent, accordingly,
notwithstanding section 6(a) or any other part of this section 6 (c).
7. CESI Obligations: As recognized by the services listed in Exhibit E,
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CESI is receiving payments from Catalytica that CESI will in turn pay to third
parties, including the Master Lessor. Subject to Catalytica's payment of those
amounts described in Section 6 above, CESI agrees to pay Master Lessor and
applicable third parties for the services covered by this Agreement for which
payments are made hereunder by Catalytica In enforcing performance of the
obligations of Master Lessor under the Master Lease, CESI shall cooperate with
Catalytica, and upon Catalytica's written request, shall promptly notify Master
Lessor of any nonperformance by Master Lessor under the Master Lease and request
that Master Lessor perform its obligations under the Master Lease.
8. Surrender and Alterations: Catalytica shall not be permitted to make
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any leasehold improvements ("Alterations") to the Final Occupancy Premises
without the advance
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written consent of Master Lessor (pursuant to the terms of the Master Lease) and
CESI; provided, that, CESI shall perform the Alterations for Catalytica at
Catalytica's cost and expense plus an additional 10% administrative charge.
Catalytica shall provide CESI notice of its desire to install Alterations; and
the parties shall cooperate and use reasonable commercial efforts to complete
the Alterations as soon as reasonably practicable. CESI's consent to an
Alteration shall not be unreasonably withheld or delayed and CESI may place such
conditions on its consent as it determines, in the reasonable exercise of its
discretion, including a requirement (notwithstanding any consent of Master
Lessor) that such Alteration be removed at the end of the Agreement Term. If
Master Lessor or CESI does not consent to the surrender of such Alterations at
the expiration or earlier termination of the Term, then prior to expiration or
earlier termination of this Agreement, Catalytica shall remove from the Final
Occupancy Premises, at Catalytica's sole cost and expense, such Alterations,
along with all of its trade fixtures and personal property, and shall surrender
the Final Occupancy Premises to CESI in good condition and repair, free of
Hazardous Materials (defined below) brought on to the Final Occupancy Premises
by Catalytica, its agents, employees, subtenants or invitees or otherwise
resulting from Catalytica Contamination (defined below), reasonable wear and
tear, casualties and condemnation, excepted. In addition, Catalytica shall be
required (if required by the Master Lessor, to remove, at its sole cost and
expense) those improvements identified on Exhibit D. If the Final Occupancy
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Premises are not surrendered in accordance with the terms of this Paragraph 8,
then Catalytica shall be liable to CESI for all costs reasonably incurred by
CESI (including any charges by Master Lessor under the Master Lease) in
returning the Final Occupancy Premises to such required condition, plus interest
thereon at the lessor of ten percent (10%) per annum of the maximum rate
allowable by law.
9. Holdover: If Catalytica remains in possession of the Final Occupancy
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Premises after the expiration or earlier termination of this Agreement,
Catalytica's continued possession shall be from month to month of CESI and
Catalytica shall continue to comply with and perform all the terms and
obligations of this Agreement. Unless CESI consents in writing to such holdover,
Catalytica shall pay Base Rent equal to one hundred and fifty percent (150%) of
all Base Rent payable at the rate in effect immediately preceding the
termination of this Agreement and shall also pay all Additional Rent. Catalytica
shall also indemnify, protect, defend and hold harmless CESI, its officers,
directors, employees, agents and assigns, from and against all loss and
liability to CESI (and each of them) resulting from Catalytica's holding over
(including, without limitation, any additional payments of base rent owed by
CESI to Master Lessor for the Demised Premises pursuant to paragraph 4 of the
First Addendum to the extent such payments exceed the amount of holdover rent
(excluding charges for Included Services) paid by Catalytica to CESI).
Notwithstanding the foregoing, Catalytica shall have no obligation to CESI if
the holding over by Catalytica is a direct result of a breach by CESI of this
Agreement, or the Master Lease, and in such event CESI shall hold Catalytica
harmless from all costs and expenses associated with CESI's breach.
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10. Other Agreement Terms:
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(a) Incorporation By Reference. Except as otherwise provided in or
--------------------------
modified by this Agreement, the terms, provisions and conditions contained in
the Master Lease are incorporated herein by reference, and are made a part
hereof as if set forth herein at length; provided, however, that to the extent
not inconsistent with the terms of this Agreement: (i) each reference in such
incorporated sections to "Lease" shall be deemed a reference to "Agreement";
(ii) each reference to the "Demised Premises," shall be deemed a reference to
the "Final Occupancy Premises" as defined herein; (iii) each reference to
"Lessor" and "Lessee" shall be deemed a reference to "CESI" and "Catalytica",
respectively; (iv) with respect to the performance of any obligation of Master
Lessor under the Master Lease, the sole obligation of CESI shall be as set forth
in Section 6 hereof; (v) with respect to any obligation of Catalytica the non-
performance of which would constitute a default under Section 18.01(b) of the
Master Lease as incorporated into this Agreement, Catalytica shall have twelve
(12) days to perform the obligation; (vi) except as CESI shall be required to
submit Catalytica's claims and cooperate with Catalytica pursuant to Section 6
hereof, CESI shall have no liability to Catalytica with respect to (a)
representations and warranties made by Master Lessor under the Master Lease, (b)
any indemnification obligations of Master Lessor under the Master Lease or other
obligations or liabilities of Master Lessor with respect to compliance with laws
or condition of the Final Occupancy Premises, and (c) Master Lessor's repair,
maintenance, restoration, upkeep, insurance and similar obligations under the
Master Lease, regardless of whether the incorporation of one or more provisions
of the Master Lease into the Agreement might otherwise operate to make CESI
liable therefor; (vii) with respect to any approval or consent required to be
obtained from the "Lessor" under the Master Lease, Catalytica shall be required
to obtain such approval or consent from Master Lessor and CESI, and the approval
or consent of CESI may be withheld if Master Lessor's approval or consent is not
obtained, provided, however, CESI's consent may not be unreasonably withheld if
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Master Lessor provides its consent; and (viii) the following provisions of the
Master Lease are expressly not incorporated herein by reference: Sections 1.01,
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Article 2, Article 3, 6.01, 7.01, the first sentence of 9.01, 10.02, 24, 28,
29.01, 30, 31.08, Exhibit A, Exhibit B, all of the First Addendum and all of the
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Second Addendum.
(b) Assumption of Obligations. This Agreement is and at all times
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shall be subject and subordinate to the Master Lease and the rights of Master
Lessor thereunder. CESI shall not commit or permit an of its employees or agents
to commit on the Final Occupancy Premises any act or omission which shall
violate any term or condition of the Master Lease. Catalytica hereby expressly
assumes and agrees during the Term of this Agreement to comply with all
provisions of the Master Lease which are required to be performed by Catalytica
hereunder. In the event of termination of CESI's interest as "Tenant" under the
Master Lease for any reason, this Agreement shall terminate simultaneously with
such termination of CESI's interest.
11. Notices: The address of each party shall be that address set forth
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below their signatures at the end of this Agreement. Any party hereto may
change its address for the purposes of this Paragraph 10 by delivery of at least
five (5) days prior written notice of such change to the other party in the
manner set forth in this Section 11. All notices, demands or communications in
connection with this Agreement shall be (i) in writing, (ii) properly
15
addressed, and (iii) either (a) sent by prepaid, certified mail, return receipt
requested, or (b) sent by recognized overnight courier service. Notices mailed
in accordance herewith shall be deemed received on the date the U.S. Post Office
receipts delivery or refusal to accept delivery. Notices delivered by recognized
courier service shall be deemed received on the next business day following
deposit with the courier service. If a notice is received or deemed received on
a Saturday, Sunday or legal holiday, it shall be deemed received on the next
business day. All notices given to Master Lessor under the Master Lease shall be
considered received only when delivered in accordance with the Master Lease.
12. Hazardous Materials:
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(a) Catalytica shall advise CESI of any Hazardous Materials used on
proposed for use in, on, under or about the Final Occupancy Premises.
Immediately following the commencement of this Agreement, Catalytica shall make
available at such time as CESI shall designate, a listing of Hazardous Materials
Catalytica is using on the Initial Occupancy Premises. Catalytica shall update
this listing as requested by CESI. Catalytica shall indemnify, defend with
counsel reasonably acceptable to CESI, protect, and hold harmless CESI, its
employees, agents, contractors, stockholders, officers, directors, successors,
personal representatives, and assigns from and against all claims, actions,
suits, proceedings, judgments, losses, costs, personal injuries, damages,
liabilities, deficiencies, fines, penalties, damages, attorneys' fees,
consultants' fees, investigations, detoxifications, remediations, removals, and
expenses of every type and nature, to the extent caused by the use, release,
disposal, discharge or emission of Hazardous Materials on or about the Final
Occupancy Premises during the Term of this Agreement by Catalytica or
Catalytica's employees, subtenants, agents or invitees other than CESI, Master
Lessor or their agents or employees ("Catalytica Contamination"). Likewise to
the extent that CESI uses any Hazardous Materials on, under or about the Demised
Premises, CESI shall indemnify. defend with counsel reasonably acceptable to
Catalytica, protect, and hold harmless Catalytica, its employees, agents,
contractors, stockholders, officers, directors, successors, personal
representatives, and assigns from and against all claims, actions, suits,
proceedings, judgments, losses, costs, personal injuries, damages, liabilities,
deficiencies, fines, penalties, damages, attorneys' fees, consultants' fees,
investigations, detoxifications, remediations, removals, and expenses of every
type and nature, to the extent caused by the use, release, disposal, discharge
or emission of Hazardous Materials on or about the Final Occupancy Premises
during the Term of this Agreement by CESI or CESI's employees, subtenants,
agents or invitees other than Catalytica, Master Lessor or their agents or
employees. The provisions of this Paragraph 11 shall survive the termination of
this Agreement.
(b) Each party shall be responsible for obtaining and maintaining any
and all governmental authorizations, clearances, consents, plans and permits
required for its operations, including, without limitation, any required air
permits, EPA identification numbers and Hazardous Materials business plans.
Neither party shall not release or discharge any Hazardous Materials into any
conduits to the sewer system on the Demised Premises (i.e. sinks, drains etc.).
(c) Catalytica shall maintain environmental insurance coverage for its
Hazardous Materials Activities on the Demised Premises for the Term on an
occurrence
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basis (as opposed to a "claims made" policy) with a policy coverage of
$5,000,000 and a deductible no greater than $100,000. Such policy can be in the
form of a CGL policy (without a pollution exclusion) or a pollution legal
liability or similar policy and shall name CESI and Master Lessor as additional
insureds.
(d) For the purposes of this Sublease: (i) "Hazardous Material"
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shall mean any material or substance that is prohibited or regulated by any
Environmental Law or that has been designated by any governmental authority
to be radioactive, toxic, hazardous or otherwise a danger to health,
reproduction or the environment; (ii) "Environmental Laws" shall mean all
------------------
applicable laws, directives, guidance, rules, regulations, orders,
treaties, statutes, and codes promulgated by any governmental authority
which prohibit, regulate or control any Hazardous Material or any Hazardous
Material Activity, including, without limitation, the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, the
Resource Recovery and Conservation Act of 1976, the Federal Water Pollution
Control Act, the Clean Air Act, the Hazardous Materials Transportation Act,
the Clean Water Act, all as amended at any time; and (iii) Hazardous
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Materials Activity shall mean the transportation, transfer, recycling,
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storage, use, treatment, manufacture, removal, remediation, release,
exposure of others to, sale, or distribution of any Hazardous Material or
any product or waste containing a Hazardous Material, or product
manufactured with Ozone depleting substances.
13. Conditions Precedent: It shall be an express condition precedent to
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CESI's and Catalytica's obligations hereunder that, and this Agreement shall not
be effective unless and until Master Lessor has consented in writing to this
Agreement. If Master Lessor does not consent in writing to this Agreement
within thirty (30) days after the full execution and delivery of this Agreement,
then either party may, at any time thereafter until such consent is obtained,
terminate this Agreement upon written notice to the other, whereupon any monies
previously paid by Catalytica to CESI shall be reimbursed to Catalytica.
14. Assignment and Space Sharing: Neither party shall assign this
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Agreement, in whole or in part, to any other party without the express consent
of the other party hereto, which consent shall not be unreasonably withheld or
delayed if assignment is requested by CESI, and may be approved or denied at the
sole discretion of CESI in the event of a request for assignment by Catalytica;
provided, however, that either party may assign this Agreement, without consent,
to an affiliate or successor by merger or consolidation.
15. CESI's Exercise of Option. Thirty (30) days prior to the date by
-------------------------
which CESI may exercise a renewal option under the Master Lease, CESI shall
advise Catalytica of CESI's intention as to whether CESI will renew or not renew
the Master Lease. If CESI indicates it will renew, Catalytica shall within
fifteen (15) days of its receipt of such CESI notice confirm its desire either
to extend or terminate this Agreement. In the event that Catalytica so expresses
its desire to extend this Agreement, CESI shall negotiate in good faith to allow
Catalytica to
17
remain in the Final Occupancy Premises during the option term upon terms and
conditions (including, without limitation, base rent charges and other financial
terms) mutually acceptable to the parties.
16. Indemnity: Each party shall indemnify, defend, protect, and hold the
---------
other and its officers, agents, employees, successors and assigns (collectively,
"Agents") and Master Lessor harmless from and against all claims, demands,
actions, causes of action, losses and expenses (collectively "Claims") which may
be brought against such other party's Agents or Master Lessor or which such
other party's Agents or Master Lessor may pay or incur by reason of any breach
or default of this Agreement by a party, an intentional misrepresentation by a
party of the matters set forth herein, or the negligence or willful misconduct
of a party or such party's employees, agents, contractors, or invitees in or
about the Demised Premises or the Parking Premises during the Term to the extent
that the Claims are not caused by the negligence or willful misconduct of the
other party or the other party's Agents. Without limiting the generality of the
foregoing, each party shall indemnify, defend, protect and hold the other party,
the other party's Agents and Master Lessor harmless from and against any Claims
which may be brought against the other party, the other party's Agents or Master
Lessor or which the other party, the other party's Agents or Master Lessor may
pay or incur by reason of any violation of any laws by a party or such party's
employees, agents or contractors.
17. Confidential Information: Since the Final Occupancy Premises shall
------------------------
not be physically separated from the remainder of the Building, CESI and
Catalytica acknowledge that it will be important for the parties to cooperate
with each other to maintain the confidentiality of each parties documents and
operations as well as information a party may hold under confidential
arrangements with third parties. CESI and Catalytica shall maintain and treat
as confidential and secret all information and materials which may intentionally
or unintentionally may be disclosed to the other party in connection with such
shared occupancy that either (i) are identified in writing thereon as being
proprietary, confidential or secret, or (ii) regardless of whether marked with
proprietary, confidential or secret demarcations, are such that a reasonable
person would be able to readily ascertain that such information or materials are
internal and confidential in nature and not otherwise publicly available (in
each case the "Confidential Information"). CESI or Catalytica shall not
disclose Confidential Information to any third party. Each party will take
appropriate action by instruction, agreement or otherwise with its employees,
agents and invitees who are permitted access to the Industrial Center to insure
that security of the Confidential Information is maintained. Notwithstanding
the foregoing, a party may disclose Confidential Information of the other party
hereto to the extent that (a) disclosure is compelled by judicial or
administrative process or, in the opinion of the disclosing party's counsel, by
other requirements of law, or (b) such party can show that such Confidential
Information (i) was publicly available prior to the date of this Agreement or
thereafter becomes publicly available without any violation of this Agreement on
the part of such party or its employees, agents, affiliates, associates or
representatives, or (ii) became available to such party from a person other than
the other party hereto that is subject to any legally binding obligation to keep
such Confidential Information confidential. The provisions of this Paragraph 15
shall survive the termination of this Agreement.
18. Use of CESI Property: In connection with its occupancy of the Final
--------------------
Occupancy Premises and its payment of Base Rent pursuant to this Agreement, at
no
18
additional cost to Catalytica, Catalytica shall have the right, throughout
the Term, to use the furniture and related equipment owned bhy CESI and located
in the Final Occupancy Premises ("CESI Property"). Catalytica shall take
delivery of the CESI Property in its "as-is, where-is" condition. CESI shall
have no obligation to repair or replace any item of CESI Property, and CESI
makes no representation or warranty of any kind with respect to the CESI
Property, including, without limitation, the condition or fitness of the CESI
Property for Catalytica's proposed or actual use thereof. Catalytica shall
indemnify, defend with counsel reasonably acceptable to CESI, protect and hold
harmless CESI from and against any and all liabilities, judgments, causes of
action, damages, costs and expenses (including, without limitation, reasonable
attorneys' and experts' fees), caused by or arising in connection with the
condition or use by CESI of the CESI Property from and after the commencement of
the Term. Upon the expiration or earlier termination of this Agreement,
Catalytica shall return the CESI Property to CESI in the condition received,
ordinary wear and tear excepted.
19. Successors: This Agreement shall be binding on and inure to the
----------
benefit of the parties hereto and their respective successors and permitted
assigns.
20. Broker: CESI and Catalytica represent, warrant and agree that they
------
have not dealt with any brokers with a right to a commission arising out of this
Agreement. Each party agrees to hold the other party harmless from and against
all claims for brokerage commissions, finder's fees or other compensation made
by any other agent, broker, salesman or finder as a consequence of said party's
actions or dealings with such agent, broker, salesman, or finder.
21. Counterparts: This Agreement may be executed in one or more
------------
counterparts each of which shall be deemed an original but all of which together
shall constitute one and the same instrument. Signature copies may be detached
from the counterparts and attached to a single copy of this Agreement physically
to form one document. A facsimile counterpart signature delivered to each party
shall be deemed an original for the purpose of the execution of this Agreement.
22. Entire Agreement: This Agreement and the provisions of the Master
----------------
Lease incorporated herein by the express terms of this Agreement constitute the
complete and exclusive agreement among the parties with respect to the matters
contained herein and supersede all prior written or oral agreements or
statements by and among the parties hereto regarding the same, provided that
this Agreement shall be at all times subject to all of the terms and conditions
of the Master Lease.
19
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year first above written.
CATALYTICA: CESI:
CATALYTICA, INC. CATALYTICA ENERGY
SYSTEMS, INC.
By: ___________________________ By: ___________________________
Printed Printed
Name: ________________________ Name: _________________________
Its: _________________________ Its: __________________________
Date: ________________________ Date: _________________________
Address: Address: 000 Xxxxxxxx Xxxxx
Xxxxxxxx Xxxx, XX _______
Attention: Xx. Xxxxx Xxxxxxxxxxxxx Attention:
FAX: 000-000-0000 FAX:
20
EXHIBIT A
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Master Lease
(To be inserted)
21
EXHIBIT B
---------
Final Occupancy Premises
(To be inserted)
22
EXHIBIT C
---------
Initial Occupancy Premises
(To be inserted)
23
EXHIBIT D
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Improvements to be Removed by Catalytica
1. Smart Lab Processing equipment, enclosure and related structures (including
without limitation, the heating and cooling equipment and pumps and electrical
control panels)
24
EXHIBIT E
---------
Included Services
(To be inserted)
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