EXHIBIT 10.3
000 XXXXXXXXXXX XXXX
XXXXX XXXX, XXXXXXXXXX
SUBLEASE PORTION OF PREMISES
XXXXXX XXXXXX WHITE & XxXXXXXXX LLP a California limited liability partnership
(with its successors called "HEW&M"), and CORCEPT THERAPEUTICS INCORPORATED, a
Delaware Corporation (called "Subtenant"), agree to the following terms of this
Sublease ("Sublease") effective as of January 1, 2001.
1. SUMMARY AND DEFINITIONS: The following definitions apply in this
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Sublease:
1.1 Base Rent: The amount provided in Exhibit A, which amount shall be
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payable monthly, in advance, on the first day of every month during the Term of
this Sublease, commencing on the Commencement Date.
1.2 Additional Rent: Commencing on the Commencement Date, and in addition
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to the monthly installments of Base Rent, an amount equal to:
(i) Subtenant's Proportionate Share of any and all "Additional
Rent" (as defined in the Master Lease) which HEW&M pays or becomes obligated to
pay to Master Landlord or otherwise incurs under the provisions of the Master
Lease (including all amounts and obligations referenced in Section 3.D of the
Master Lease) with respect to such portion of the term of the Master Lease which
occurs during the Term of this Sublease (and including any adjustment to the
same that may occur during any annual reconciliation by Master Landlord of the
estimated payments of Additional Rent against the actual amounts of such
Additional Rent obligations); plus
(ii) Subtenant's Proportionate Share of HEW&M's previously
incurred tenant improvement costs for the portion of the Building currently
leased by HEW&M (which tenant improvement cost amount is agreed by the parties
to equate to $0.723 per rentable square foot per month).
1.3 Broker: None.
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1.4 Building: The Building located at 000 Xxxxxxxxxxx Xxxx, Xxxxx Xxxx,
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CA. 94025-3506.
1.5 Commencement Date: As defined in the definition of Term below.
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1.6 Landlord's Address:
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Xxxxxx Xxxxxx White & XxXxxxxxx LLP
000 Xxxxxxxxxxx Xxxx
Xxxxx Xxxx, XX 00000-0000
Attn: Director of Administration
with a copy any notices of default or election to
terminate the Sublease to:
Xxxxxx Xxxxxx Xxxxx & XxXxxxxxx LLP
000 Xxxx Xxxxxx. Suite 3100
San Francisco, CA. 94104-2878
Attn: Managing Director
1.7 Master Lease: That certain Lease Agreement between HEW&M as Tenant and
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Middlefield Park, a California general partnership, as Master Landlord dated
October 19, 1998, as amended to date and as it may be hereafter amended, a copy
of which is available to Subtenant at HEW&M's Menlo Park office.
1.8 Master Landlord: Middlefield Park
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1.9 Premises: The following spaces as depicted on Exhibit A attached
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hereto together with the furniture and furnishings described on Exhibit A-1:
Offices: 041.1B, 040.1B, 039.1B, 038.1B, 037.1B, 036.1B, 035.1B,
084.1B, 083.1B, 080.1B, 075.1B
Work Rooms: None
Secretarial Stations (and file storage): 082.1B, 081.1B, 078.1B
Conference Rooms (non-exclusive, as available): All
1.10 Prime Rate: means the rate of interest published in the "Money Rates"
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column of Wall Street Journal as the Prime Rate, as such rate may change from
time to time (or, if such rate is no longer published in the Wall Street
Journal, such reasonable substitute as HEW&M may select).
1.11 Proportionate Share: The percentage calculated by dividing the
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rentable square footage of the Premises (as set forth on Exhibit A) by the
current rentable square footage of the portion of the Building currently being
leased by HEW&M (to wit: 84,378 rentable square feet).
1.12 Security Deposit: None
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1.13 Sublease: This Agreement, as defined in the caption to this Agreement.
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This Sublease is acknowledged to be subject and subordinate to the Master Lease,
and all of Subtenant's right to possession are subject to all of the terms and
conditions of the Master Lease and Subtenant shall in its occupancy and use of
the Premises, comply with all of the terms and conditions of the Master Lease
applicable to HEW&M and the use and occupancy of the Premises. If this Sublease
or any actions proposed to be taken by Subtenant should at any time require the
consent of the Master Landlord under the Master Lease, Subtenant agrees that it
will cooperate with HEW&M in seeking to obtain such consent.
1.14 Subtenant's Address: 000 Xxxxxxxxxxx Xxxx
------------------- Menlo Park, CA 94025
Attn: Xx. Xxxx Xxxxx
1.15 Term: The Term shall commence on January 1, 2001, (the "Commencement
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Date"), and end on the later of (i) December 31, 2003 or (ii) such date which is
stated in a notice from either HEW&M or Subtenant to the other (a "Termination
Notice"), notifying such other party of the election to terminate this Lease on
the termination date stated in such Termination Notice which termination date
must be at least one hundred eighty (180) days after the date of such
Termination Notice and no earlier than December 31, 2003 (to the effect that the
Term of this Lease shall automatically continue on and after December 31, 2003
until such termination date as is ultimately set forth in a subsequent
Termination Notice, unless at least one hundred eighty days prior to December
31, 2003, either HEW&M or Subtenant gives to the other a Termination Notice
providing for the termination of this Sublease on December 31, 2003).
Notwithstanding the foregoing, the Term hereof shall automatically terminate
upon any early termination of the term of the Master Lease (unless Master
Landlord elects in its sole discretion to have this Sublease continue in effect
as a direct Lease with Master Landlord), or upon any election of HEW&M or
Subtenant to terminate this Sublease pursuant to any express provisions of this
Sublease providing for the same.
1.16 Use: The Premises shall be used and occupied only for the purpose of
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general office use and for no other purpose whatsoever.
2. DEMISE. HEW&M hereby subleases the Premises to Subtenant and Subtenant
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subleases the same from HEW&M, for the Term, upon and subject to all of the
terms and conditions of this Sublease.
3. ACCEPTANCE OF PREMISES. By taking possession of the Premises, Subtenant
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shall conclusively evidence that the Premises are fully completed and are
suitable for Subtenant's purposes, that the Building and the Premises are in
good and satisfactory condition, and that Subtenant waives any defect therein.
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4. RENT AND ADDITIONAL CHARGES. From the Commencement Date and throughout the
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Term, Subtenant shall pay to HEW&M, without prior notice, demand, offset or
deduction, on a monthly basis, in advance, on the first day of each calendar
month during the Term, (i) the Base Rent and (ii) the Additional Rent,
applicable to such calendar month. If any Additional Rent or other charges under
this Sublease, are billed by HEW&M to Subtenant, such amounts shall be paid
within twenty (20) days after the receipt of an invoice by Subtenant from HEW&M.
The obligation of Subtenant under this Paragraph to pay the Base Rent and
Additional Rent (including any reconciliation by Master Landlord of any
Additional Rent occurring after the Term of this Sublease), shall survive the
expiration or earlier termination of the Term of this Sublease.
5. SERVICES PROVIDED BY HEW&M. If Subtenant is not in default under this
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Sublease, HEW&M agrees to furnish or cause to be furnished for the occupied
portions of the Premises the utilities and services as described in Exhibit B,
subject to the standards set forth therein. HEW&M's obligation to furnish
service is subject to the rules and regulations of applicable utilities and of
any governmental authority. HEW&M does not warrant that the services provided
for in this Paragraph 5 will be free from any irregularity or stoppage. HEW&M
shall use due diligence to correct the same, but no such condition or event will
create any liability for HEW&M, or constitute an eviction, actual or
constructive, of Subtenant, or cause any abatement of the rent payable under
this Sublease or relieve Subtenant of its obligations under this Sublease.
In connection with the services to be provided by HEW&M, Subtenant
acknowledges that there is the possibility of error in any clerical functions
performed by an employee or subcontractor of HEW&M, including, but not limited
to, transmitting faxes, word processing documents, photocopying, and mail room
services. HEW&M assumes no responsibility or liability for such errors.
Subtenant xxxxxx releases HEW&M from any claims arising from such errors
regarding Subtenant's matters and will indemnify and defend HEW&M against any
claims brought against HEW&M by third parties as a result of such errors
regarding Subtenant's matters. Subtenant agrees that Subtenant shall have no
right to damages or offset with respect to the quality or level of services
provided. In the event of interruption in services, HEW&M shall have no
obligation to provide Subtenant with alternative accommodations or services.
6. PHONE SERVICE. Subtenant will provide its own voice and data phone lines,
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which HEW&M will assist in connecting through HEW&M's phone/data wiring to the
office space Subtenant uses. Subtenant will pay for its phone service as well as
any costs for installation or removal of its phone lines.
HEW&M shall not be liable in damages or otherwise for any failure or
interruption of telephone service being furnished to Subtenant and no such
failure or interruption shall entitle Subtenant to terminate this Sublease or
shall otherwise affect Subtenant's obligations under this Sublease.
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7. USE OF PREMISES. Subtenant will use and occupy the Premises only for the
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Use set forth in Paragraph 1.16 and no other, using and maintaining the Premises
in a careful, sanitary and proper manner. Subtenant will pay for any damage to
any part of the Premises or Building caused by any negligence or willful act by
Subtenant or Subtenant's employees, agents, contractors or invitees. Subtenant
will comply with applicable provisions of the Master Lease and the Building's
Rules and Regulations and will not cause anywhere in the Building, or permit in
the Premises, (i) any activity or thing contrary to applicable law, ordinance,
regulation, restrictive covenant, or insurance regulation; or which is in any
way immoral or extra hazardous or could jeopardize the coverage of normal
insurance policies or increase their cost; (ii) waste or nuisance, or any
activity causing odors perceptible outside the Premises; or (iii) overloading
the floors or the structural or mechanical systems of the Building. Subtenant
shall not erect or place any item in or upon the areas outside the Premises.
Subtenant shall not erect or place any item (including, without limitation,
signs) in, upon or visible from the exterior of the Building. Subtenant shall at
Subtenant's sole cost and expense faithfully observe and promptly comply with
all local, state and federal laws, statutes, ordinances and governmental
resolutions, orders, rules, regulations and requirements now in force or which
may hereafter be in force with respect to Subtenant's use, occupancy or
possession of the Premises and Subtenant's business conducted in the Premises
and with the requirements of any board of fire underwriters or other similar
body now or hereafter constituted relating to or affecting the condition, use or
occupancy of the Premises. Subtenant shall also comply with any covenant,
condition or restriction affecting the Building. Notwithstanding the foregoing
provisions to the contrary, Subtenant shall not be obligated to perform any
physical modifications to the Premises or the Building in order to comply with
the above requirements, unless the need for such compliance is caused by (i)
Subtenant's particular use of the Premises, as opposed to the general office use
permitted under this Sublease or (ii) any alterations made to the Premises by or
for Subtenant. Except for ordinary office supplies typically used in the
ordinary course of business, Subtenant shall not use, possess, store, handle,
generate, release, transport or dispose of any toxic, radioactive or hazardous
wastes or materials in, on or about the Premises or the Building. The use of
offices or work stations by more than one person (such as part-time use of an
office or workstation by more than one person) is not permitted. Subtenant's
obligations under this Paragraph 7 will survive termination of this Sublease.
8. BROKERS. Subtenant warrants that it has had no dealing with any finder,
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broker or agent in connection with this Sublease. Subtenant will indemnify,
defend and hold HEW&M harmless from and against any and all costs, expenses or
liability for commissions or other compensation or charges claimed by any other
finder, broker or agent based on dealings with Subtenant with respect to this
Sublease.
9. SUBTENANT'S TAXES. Subtenant shall be liable for and shall pay, before
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delinquency, all taxes levied or assessed against or attributable to any
personal property
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or trade fixtures in the Premises. If any such taxes or value are included in
HEW&M's taxes, HEW&M may pay them regardless of their validity, and Subtenant
upon demand will repay HEW&M.
10. ALTERATIONS, REPAIRS AND MAINTENANCE.
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10.1 Repairs and Maintenance. Subtenant shall keep the interior of the
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Premises in good condition and repair to the extent that such repairs are made
necessary by Subtenant's misuse of the Premises or the willful or negligent act
of Subtenant, its employees, agents, contractors or invitees. Upon written
request from Subtenant of the need for the same, HEW&M shall use commercially
reasonable efforts to enforce the Master Landlord's maintenance obligations in
the Premises for the benefit of Subtenant.
10.2 Alterations. Subtenant will not make or permit any alterations,
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improvements or additions (including fixtures) to be made in or to the Premises
whatsoever. Prior to the expiration of the Term of this Sublease, Subtenant at
its sole cost and expense will install floor slab to ceiling slab walls between
offices 034.1B - 035.1B and 039.1B - 040.1B. Such walls shall be of the same
configuration, wall treatments, fireproofing and soundproofing, and shall
include such electrical, telephone, computer and other wiring and cabling, as
currently exists with respect to the wall between 037.1B and 038.1B. Such wall
installation obligation shall include the responsibility for all associated work
arising from such installation, including by way of example, but without
limitation, the obligation of cutting the existing ceiling grid and reattaching
the ceiling grid to the new walls, replacing any ceiling tiles, and making any
required alterations or relocations of HVAC ducts, ceiling lighting fixtures and
lighting control switches and sensors.
11. ENTRY. HEW&M and Master Landlord may enter any part of the Premises at all
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reasonable hours (or in any emergency or suspected emergency, at any hour), to
(a) inspect, test, clean, or make repairs, alterations and additions to the
Building or the Premises as Master Landlord or HEW&M believes appropriate, or
(b) provide any service which Master Landlord or HEW&M is now or hereafter
obligated to furnish to tenants of the Building, or (c) show the Premises to
prospective lenders, purchasers or tenants and, if they are vacated, to prepare
them for re-occupancy. Rent will not xxxxx because of Master Xxxxxxxx's or
HEW&M's entry. At Subtenant's sole cost and expense, Subtenant may elect to have
locks installed on the doors to the offices comprising the Premises using
hardware compatible with the existing door hardware. Any such locks must be
approved in advance by HEW&M and, once approved, will be installed by HEW&M at
Subtenant's expense. Any such locks shall be keyed so as to operate with the
master key for the Premises and HEW&M shall at all times be provided with keys
to all doors to or in the Premises.
12. INDEMNIFICATION AND EXCULPATION. Subtenant will indemnify, defend and hold
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and save HEW&M and Master Landlord, their affiliates and managing
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agent and their respective employees, officers, directors, shareholders,
partners and agents (each an "Indemnitee") harmless from all fines, suits,
losses, costs, expenses, liabilities, claims, demands, actions, damages and
judgments (collectively, "Liabilities") suffered by, recovered from or asserted
against the Indemnitee, of every kind and character, to the extent arising out
of or caused by any breach, violation or nonperformance by Subtenant of any
provision of this Sublease, and from injury, death or damage to person or
property to the extent arising out of or caused by any act, omission, negligence
or misconduct by Subtenant or Subtenant's employees, agents, contractors or
invitees (collectively, "Subtenant's Agents"), or in any other way from
Subtenant's or Subtenant's Agents' occupancy or use of the Premises or the
Building. If any such proceeding is brought against an Indemnitee, Subtenant
will retain counsel reasonably satisfactory to HEW&M to defend the Indemnitee at
Subtenant's sole cost and expense. All such costs and expenses, including
attorneys' fees and court costs, shall be a demand obligation owing by Subtenant
to HEW&M. Subtenant's obligations under this Paragraph 12 shall survive the
expiration or earlier termination of the Term of this Sublease.
13. INSURANCE. Subtenant, during the term and any other period of occupancy,
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will at its expense maintain insurance reasonably satisfactory to HEW&M, but in
no event less than:
(a) General Liability insurance with combined single limits not less
than $2,000,000.00, for personal injury or death and property damage occurring
in or about or related to the use of the Premises.
(b) Worker's Compensation (as required by state law), and Employer's
Liability insurance in the amount of not less than $500,000.00.
All policies required hereunder will be issued by carriers rated A-XII or
better by Best's Key Rating Guide and licensed to do business in the State of
California. The policies shall name Master Landlord and HEW&M and any other
person or entity that Master Landlord may designate, or HEW&M may reasonably
designate, from time to time as additional insureds, with primary coverage
non-contributing to any insurance Master Landlord or HEW&M may carry, and shall
provide that coverage cannot be canceled or materially changed except upon
thirty (30) days prior written notice to HEW&M. At least thirty (30) days prior
to expiration of such policies, and promptly upon any other request by HEW&M,
Subtenant shall furnish HEW&M with copies of policies, or certificates of
insurance, evidencing maintenance and renewal of the required coverage. In the
event Subtenant does not maintain said insurance, HEW&M may, in its sole
discretion and without waiving any other remedies hereunder, procure said
insurance and Subtenant shall pay to HEW&M as rent the cost of said insurance
plus a ten percent (10%) administrative fee.
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14. NO SUBROGATION. All property insurance policies which either party obtains
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affecting the Premises shall include a clause or endorsement denying the insurer
any rights of subrogation against the other party or Master Landlord. HEW&M and
Subtenant waive any rights or recovery against the other for any actually
insured injury or loss.
15. DAMAGE OR DESTRUCTION. If the Premises or any part thereof are damaged by
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fire or other casualty, Subtenant will promptly notify HEW&M.
15.1 Cancellation of Sublease; Restoration of Building. If the Building or
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the Premises are damaged by fire or other casualty, HEW&M may terminate this
Sublease by so notifying Subtenant within forty-five (45) days after the date
the damage occurs or may, if HEW&M so elects, use commercially reasonable
efforts to cause Master Landlord to repair such damage as may be necessary to
restore the Premises and/or access thereto. HEW&M shall promptly provide
Subtenant with a copy of any notice HEW&M receives from Master Landlord under
Paragraph 22 of the Master Lease regarding the time period required to repair
the Premises or the Building following any damage or destruction. In the event
such notice indicates the time required to repair the Premises or any portion of
the Building necessary for Subtenant's use, occupancy or access to the Premises
will exceed one hundred eighty (180) days, then Subtenant shall have the right
to terminate this Sublease by delivery of written notice of such cancellation
within ten (10) business days of receipt of such notice regarding the required
repair period.
15.2 Abatement of Rent. HEW&M will allow Subtenant a fair diminution of
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rent while and to the extent the Premises are unfit for occupancy due to fire or
other casualty. Except as expressly provided to the contrary in this Sublease,
this Sublease will not terminate, and Subtenant will not be entitled to damages
or to any abatement of rent or other charges, as a result of a fire or other
casualty, repair or restoration. The provisions of California Civil Code
Sections 1932(2) and 1933(4) which permit termination of a lease upon
destruction of Premises, and any other present or future statute that may so
permit, are hereby waived by Subtenant.
16. CONDEMNATION. If all or substantially all of the Building or of the
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Premises is taken for any public or quasi-public use under any governmental law,
ordinance or regulation or by right of eminent domain or is sold to the
condemning authority in lieu of condemnation, then this Sublease will terminate
when physical possession is taken by the condemning authority. If a lesser but
material portion of the Building is thus taken or sold (whether or not the
Premises are affected thereby), HEW&M may terminate this Sublease by notice to
Subtenant within sixty (60) days after the taking or sale, in which event this
Sublease will terminate when physical possession of the applicable portion of
the Building or the Premises is taken by the condemning authority. If the
Sublease is not terminated, rent payable will be reduced by the amount allocable
to any portion of the Premises so taken or sold, and HEW&M, at its sole expense,
will restore the affected
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portion of the Building to substantially its former condition as far as
feasible, but not beyond the work done by HEW&M in originally constructing the
affected portion of the Building and installing tenant improvements in the
Premises. However, HEW&M need not spend more for such restoration of the
Premises than the Premises' allocable share of the net compensation or damages
received by HEW&M for the part of the Building taken. HEW&M will be entitled to
receive all of the compensation awarded upon a taking of any part or all of the
Building or Premises, including any award for any unexpired term of this
Sublease and for goodwill; Subtenant may seek an award in separate proceedings
for its personal property, trade fixtures and moving expenses.
In the event of such taking or sale of the Premises or any part thereof for
temporary use of not more than ninety (90) days, this Sublease shall remain
unaffected and rent shall not xxxxx, and Subtenant shall be entitled to such
portion or portions of any award made for such use with respect to the period of
the taking which is within the Term, provided that, if such taking shall remain
in force at the expiration or earlier termination of this Sublease, Subtenant
shall then pay to HEW&M a sum equal to the reasonable cost of performing
Subtenant's obligations with respect to surrender of the Premises.
To the extent that it is inconsistent with the provisions of this Paragraph
16, each party hereto hereby waives the provisions of Section 1265.130 of the
California Code of Civil Procedure allowing either party to petition a court to
terminate this Sublease in the event of a partial taking of the Premises.
17. DEFAULTS AND REMEDIES.
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17.1 Events of Default. The occurrence of one or more of the following
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events shall constitute an event of default hereunder by Subtenant:
17.1.1 Subtenant fails to make a payment within three (3) days after
written notice that it is due hereunder; or
17.1.2 Subtenant fails to comply with any other obligation under this
Sublease and does not cure such failure as soon as reasonably practicable and in
any event within twenty (20) days after written notice; or
17.1.3 Subtenant attempts any Transfer (as defined in Paragraph 18) in
breach of the provisions of this Sublease; or
17.1.4 Subtenant becomes insolvent, makes a transfer in fraud of
creditors or an assignment for the benefit of creditors, admits in writing its
inability to pay its debts as they become due, or files a petition under any
Section or Chapter of the United States Bankruptcy Code or any similar law or
statute; or an order for relief is entered with respect to Subtenant in any
bankruptcy, reorganization or insolvency proceedings; or a
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pleading seeking such an order is not discharged or denied within sixty (60)
days after its filing; or the taking of any action at the corporate or
partnership level by Subtenant to authorize any of the foregoing actions on
behalf of Subtenant; or a receiver or trustee is appointed for all or
substantially all assets of Subtenant or of the Premises or any of Subtenant's
property located thereon in any proceedings brought by Subtenant, or any
receiver or trustee is appointed in any proceeding brought against Subtenant and
not discharged within sixty (60) days after appointment or Subtenant does not
contest such appointment; or any part of Subtenant's estate under this Sublease
is taken by process of law in any action against Subtenant (but in the event
that any provision of this Paragraph 17.1.4 is contrary to any applicable law,
such provision shall be of no force or effect); or
Any notice specified above shall serve as, and not be in addition to, any
notice required under California Code of Civil Procedure Section 1161 or
otherwise regarding unlawful detainer actions.
17.2 Remedies. Following the occurrence and during the continuance of an
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event of default, HEW&M may terminate this Sublease by notice to Subtenant, or
continue this Sublease in full force and effect, and/or perform Subtenant's
obligations on Subtenant's behalf and at Subtenant's expense.
17.2.1 If and when this Sublease is so terminated, all rights of
Subtenant and those claiming under it will terminate. In such event, HEW&M may
immediately recover from Subtenant:
(a) The worth at the time of award of any unpaid rent which had been
earned at the time of such termination; plus
(b) The worth at the time of award of the amount by which the unpaid
rent which would have been earned after termination until the time of award
exceeds the amount of such rental loss that Subtenant proves could have been
reasonably avoided; plus
(c) The worth at the time of award of the amount by which the unpaid
rent for the balance of the term after the time of award exceeds the amount of
such rental loss that Subtenant proves could be reasonably avoided; plus
(d) Any other amount necessary to compensate HEW&M for all the
detriment proximately caused by Subtenant's failure to perform Subtenant's
obligations under this Sublease or which in the ordinary course of things would
be likely to result therefrom.
As used in Subsections (a) and (b) above, the "worth at the time of award"
is computed by allowing interest at the Prime Rate, plus four percent (4%) per
annum (or the maximum non-usurious rate then permitted by law, whichever is
lower). As used in
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Subsection (c) above, the "worth at the time of award" is computed by
discounting such amount at the discount rate of the Federal Reserve Bank of San
Francisco at the time of award plus one percent (1%). If HEW&M so elects to
terminate the Sublease, until Subtenant confirms in writing that this Sublease
is so terminated, HEW&M's failure to seek to relet the Premises shall not
constitute a failure to seek to mitigate damages.
17.2.2 HEW&M shall have the remedy described in California Civil Code
Section 1951.4 (HEW&M may continue this Sublease in effect after Subtenant's
breach, even if Subtenant has abandoned the Premises, and enforce all of HEW&M's
rights and remedies under this Sublease, including the right to recover rent as
it becomes due, if Subtenant has the right to sublet or assign, subject only to
reasonable limitations).
17.2.3 Upon an event of default or when Subtenant is no longer
entitled to possession, HEW&M may enter the Premises and dispose of Subtenant's
property as herein provided, and may perform Subtenant's obligations hereunder
on Subtenant's behalf. Subtenant will reimburse HEW&M on demand for HEW&M's
attorneys' fees and other expenses in doing so. Subtenant's obligations under
this Paragraph shall survive the expiration or earlier termination of the Term
of this Sublease.
17.3 Continuing Liability. No repossession, re-entering or reletting of the
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Premises or any part thereof by HEW&M shall relieve Subtenant of its liabilities
and obligations under this Sublease.
17.4 Remedies Cumulative. All rights and remedies of HEW&M under this
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Sublease will be non-exclusive of and in addition to any other remedies
available to HEW&M at law or in equity.
17.5 No Waiver. HEW&M's failure to insist on strict compliance with any
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terms hereof or to exercise any right or remedy, does not waive the same. Waiver
of any agreement regarding any breach does not affect any subsequent or other
breach, unless so stated. A receipt by HEW&M of any rent with knowledge of the
breach of any covenant or agreement contained in this Sublease shall not be a
waiver of the breach, and no waiver by HEW&M of any violation or provision of
this Sublease shall be effective unless expressed in writing and signed by
HEW&M. Payment by Subtenant or receipt by HEW&M of a lesser amount than due
under this Sublease may be applied to such of Subtenant's obligations as HEW&M
elects. No endorsement or statement on any check, and no accompanying letter,
shall make the same an accord and satisfaction, and HEW&M may accept any check
or payment without prejudice to HEW&M's right to recover the balance of the rent
or pursue any other remedy provided in this Sublease.
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18. ENCUMBRANCES, SUBLICENSING, ASSIGNMENT AND SUBLETTING. Subtenant may not
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assign, transfer, sublicense or encumber this Sublease or any estate or interest
herein, or permit the same to occur, or sublet or grant any right of occupancy
for any part of the Premises, or permit such occupancy by any other parties
other than Subtenant and Subtenant's employees, or modify or terminate any
agreement providing for any of the foregoing (the foregoing collectively
referred to as "Transfer").
19. SUBORDINATION. This Sublease and all rights of Subtenant under this
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Sublease are subordinate to the Master Lease and any Deed of Trust on the
Building and any modifications thereof. On termination of the Master Lease or
upon a sale by foreclosure of a Deed of Trust or sale in lieu of foreclosure,
Subtenant will attorn to Master Landlord or the purchaser if requested by the
Master Landlord or such purchaser, and recognize the Master Landlord or the
purchaser in place of HEW&M as sublessor under this Sublease, and in the absence
of any such request, this Sublease shall terminate as of the date of the
termination of the Master Lease. These provisions are self-operative and no
further instrument is required to effect them; however, upon demand from time to
time, Subtenant shall execute, acknowledge and deliver to HEW&M any instruments
necessary or proper to evidence such subordination and/or attornment.
20. ESTOPPEL CERTIFICATE. Upon HEW&M's written request from time to time,
--------------------
Subtenant will execute and deliver to HEW&M and Master Landlord, within ten (10)
days after Subtenant's receipt of HEW&M's written request, certificates,
certifying: (i) the date of commencement of this Sublease; (ii) the fact that
this Sublease is unmodified (except as the certificate specifies) and in full
force and effect; (iii) the date to which the sums payable under this Sublease
have been paid; (iv) that there are no current defaults under this Sublease by
either HEW&M or Subtenant except as specified; and (v) such other matters as
HEW&M requests. This certification may be relied upon by any actual or
prospective mortgagee or purchaser of all or part of the Building or any
interest therein or in HEW&M. Failure to so execute and deliver said certificate
will be conclusive upon Subtenant (i) that this Sublease is in full force and
effect, without modification except as may be represented by HEW&M, (ii) that
there are no uncured defaults in HEW&M's performance, and (iii) that no more
than one (1) month's rental has been paid in advance; and Subtenant irrevocably
authorizes HEW&M, as Subtenant's attorney-in-fact and in Subtenant's name, to so
execute and deliver said certificate.
21. SURRENDER OF PREMISES. As soon as its right to possession ends, Subtenant
---------------------
will surrender the Premises to HEW&M in as good repair and condition as when
Subtenant first occupied, except for reasonable wear and tear, and for damage or
destruction by fire or other casualty for which Subtenant is not otherwise
responsible. Subtenant will concurrently deliver to HEW&M all keys to the
Premises and the Building, restore any locks which it has changed to the system
which existed at the commencement of the Term and install the walls as required
by Paragraph 10.2 of this
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Sublease. If possession is not immediately surrendered, HEW&M may enter upon and
take possession of the Premises and expel or remove Subtenant and any other
person who may be occupying the Premises or any part thereof.
21.1 Leasehold Improvements and Fixtures. At the expiration or termination
-----------------------------------
of the Term, HEW&M may require the removal of any or all personal property and
equipment from the Premises, and the restoration of the Premises to its prior
condition, except for reasonable wear and tear, at Subtenant's expense. All
personal property and equipment on or about the Premises, other than that which
is affixed to the Premises so that it cannot be removed without material damage
to the Premises or the Building, shall be removed from the Premises by Subtenant
(if it is not in default) at the expiration or termination of the Term. All
removals by Subtenant will be accomplished in a good and workmanlike manner so
as not to damage any portion of the Building, and Subtenant will promptly repair
and restore all damage done. If Subtenant does not so remove any property which
it has the right or duty to remove, HEW&M may immediately either claim it as
abandoned property, or remove, store and dispose of it in any manner HEW&M may
choose, at Subtenant's cost and without liability to Subtenant or any other
party.
21.2 Holding Over. If Subtenant does not surrender the Premises as required
------------
and holds over after its right to possession ends, Subtenant shall become a
tenant at sufferance only, at a monthly rental rate equal to one hundred fifty
percent (150%) of the total rent payable in the last prior full month, or the
then existing fair market rental, whichever is greater, without renewal,
extension or expansion rights, and otherwise subject to the terms, covenants and
conditions herein specified, so far as applicable. Nothing other than a fully
executed written agreement of the parties creates any other relationship.
Subtenant is liable for HEW&M's loss, costs and damage from such holding over,
including, without limitation, those from HEW&M's delay in delivering possession
to other parties. These provisions are in addition to other rights of HEW&M
hereunder and as provided by law.
22. PROFESSIONAL FEES. HEW&M shall be entitled to reasonable attorneys' fees
-----------------
and all other costs and expenses incurred in the preparation and service of
notices of default and consultations in connection therewith, whether or not a
legal action is subsequently commenced in connection with such default. In any
dispute between the parties (whether or not litigated) arising hereunder or out
of Subtenant's use or occupancy of the Premises, the prevailing party's
reasonable costs and expenses (including fees of attorneys and experts) will be
paid or reimbursed by the unsuccessful party.
23. GENERAL PROVISIONS.
------------------
23.1 Waiver. Subtenant waives any right it may now or hereafter have (i) to
------
redeem the Premises or to have a continuance of this Sublease after termination
of the
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Sublease, Subtenant's right of occupancy or the Term, (ii) for exemption of
property from liability for debt or for distress for rent, or (iii) relating to
delay in levy of execution in case of eviction for nonpayment of rent. The
parties agree that in any litigation under this Sublease for the relationship it
creates, the judge, rather than the jury, shall determine any matters of fact
relating to Transfers, bankruptcy or similar matters, or to the structural or
mechanical systems of the Building.
23.2 Identification of Subtenant. If there is more than one party
---------------------------
constituting Subtenant, their obligations are joint and several, and HEW&M need
not first proceed against any of them before proceeding against the others. If
there is more than one party constituting Subtenant, any of them acts for all
others in every regard with respect to this Sublease (including but not limited
to any renewal, extension, expiration, termination or modification).
23.3 Interpretation of Sublease. Subtenant acquires no rights by
--------------------------
implication from this Sublease, and is not a beneficiary of any past, current or
future agreements between HEW&M and third parties. Surrender or cancellation of
the Master Lease shall not work a merger, and shall, at Master Landlord's
option, result in the assignment to Master Landlord of the rights of HEW&M as
sublessor under this Sublease, or result in the immediate termination of this
Sublease. The delivery of keys by Subtenant to HEW&M shall not constitute a
termination of this Sublease or a surrender of the Premises.
Headings in this Sublease are for convenience only, and do not affect the
meaning of the text. Unless context indicates otherwise, words of any gender or
grammatical number include all genders and numbers. Where context conflicts with
the definition of any term, context will control, but only for that use and
related uses. If any provision of this Sublease or any application thereof is
invalid, void or illegal, no other provision or application shall be affected.
Time is of the essence of every provision of this Sublease.
California law governs this Sublease. Neither party may record this
Sublease or a copy or memorandum thereof. Submission of this Sublease to
Subtenant is not an offer, and Subtenant will have no rights hereunder until
each party executes a counterpart and delivers it to the other party.
23.4 Financial Statements. Subtenant represents, warrants and covenants
--------------------
that financial statements heretofore or hereafter furnished to HEW&M, in
connection with this Sublease, are accurate and are not materially misleading.
At any time during the Term, Subtenant shall, upon ten (10) days prior written
notice, provide HEW&M with a current financial statement and financial
statements of the two (2) years prior to the current financial statement year,
and prepared in accordance with generally accepted
14
accounting principles and, if such is Subtenant's normal practice, audited by an
independent certified public accountant.
23.5 Payments and Notice. Any notice or document shall be considered
-------------------
delivered whether actually received or not, on the third day after deposit in
the United States mail, postage prepaid, registered or certified mail, return
receipt requested, addressed to the parties hereto at the respective addresses
set forth on this Sublease or at such other address as they may specify from
time to time by written notice delivered in accordance with this Paragraph, or
when personally delivered to that address or the Premises; except that if such
day is not a business day, the notice or document will be considered delivered
on the next business day. All payments required to be made by Subtenant to HEW&M
are to be paid, without prior demand except as may be specified and without any
setoff, deduction or counterclaim whatsoever, in legal tender of the United
States of America at the address set forth on the invoice or, if no invoice is
submitted or no address is set forth, at the address for notices to HEW&M set
forth in this Sublease or at any other address as HEW&M may specify from time to
time by written notice to Subtenant in accordance with this Paragraph. Any
amounts overdue from Subtenant hereunder shall accrue interest from the date due
at the Prime Rate plus four percent (4%) per annum (or the maximum non-usurious
rate then permitted by law, whichever is lower). If Subtenant is late in the
payment of Base Rent for two (2) consecutive months, HEW&M may require Subtenant
to pay Base Rent in advance on a quarterly basis. If any check or other payment
device is returned due to insufficient funds or any other reason, HEW&M may
require all future payments to be made by money order or cashier's check.
23.6 Late Charge. If any amounts due hereunder from Subtenant are not
-----------
received by HEW&M within five (5) days after said amounts are due, Subtenant
shall also pay to HEW&M a late charge of five percent (5%) of all such past due
amounts, which the parties agree is a fair and reasonable estimate of the extra
costs (including, without limitation, processing and accounting charges) HEW&M
will incur by reason of the late payment. Acceptance of any late charge shall
not constitute a waiver of Subtenant's default with respect to such overdue
amount, or prevent HEW&M from exercising any of its other rights and remedies.
23.7 Rules and Regulations. Subtenant shall comply with the Rules and
---------------------
Regulations of the Building.
23.8 Negotiated Transaction. The parties mutually acknowledge that this
----------------------
Sublease has been negotiated at arm's length. The provisions of this Sublease
shall be deemed to have been drafted by all of the parties and this Sublease
shall not be interpreted or construed against any party solely by virtue of the
fact that such party or its counsel was responsible for its preparation.
15
23.9 Confidentiality. HEW&M and Subtenant hereby acknowledge that each
---------------
party owes an ethical obligation to its respective clients to preserve the
confidentiality of information belonging or pertaining to such clients. In the
conduct of their respective activities, each party shall respect the other
party's obligations to keep discussions, work product, systems and the like
confidential and shall cause its personnel to act accordingly so as to enable
the other party to preserve confidentiality. Both parties agree to take steps to
instruct its personnel not to use each other's desks, offices or computer
systems. Subtenant agrees to execute, and to cause each of its employees located
at the Premises to execute, a confidentiality agreement in the form to be
provided by HEW&M, and to cause the fully executed originals thereof to be
promptly provided to HEW&M for its retention.
23.10 Integration of all Prior Agreements. This Sublease contains all of
-----------------------------------
the agreements of the parties concerning the subject matter hereof, and
supersedes any prior discussions, correspondence, agreements, representations or
warranties made by the parties or any representatives of the parties, and may be
amended or modified only by a written agreement signed by both parties.
IN WITNESS WHEREOF, the parties hereto have executed this Sublease as of the
date first above written.
HEW&M:
XXXXXX XXXXXX WHITE & XXXXXXXXX LLP
a California limited liability partnership
By: XXXXXX XXXXXX WHITE & XXXXXXXXX, Inc.
a professional corporation, Partner
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------------------------
Its: Office Managing Shareholder
-------------------------------------------------
SUBTENANT:
CORCEPT THERAPEUTICS INCORPORATED
a Delaware Corporation
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------------------------------
Its: CEO
------------------------------------------------------
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