EXHIBIT 10.19
SUBLEASE
This Sublease, dated May 1, 1999, is entered into by and between
Tularik Inc., a Delaware corporation ("Sublessor"), and ▇▇▇▇▇▇▇ Pharmaceuticals,
Inc., a Delaware corporation ("Sublessee").
RECITALS
A. Sublessor leases certain premises (the "Premises") consisting of
approximately 66,127 rentable square feet of space located in that certain
building located at One Corporate Drive (formerly Two Corporate Drive), South
San Francisco, California (the "Building"). Sublessor is the tenant under that
certain Build-To-Suit Lease dated the 20th day of April, 1995 (the "Master
Lease") with Britannia Developments, Inc., a California corporation, as
landlord; Britannia Development, Inc. assigned its interest as landlord under
the Master Lease to Britannia Gateway, LLC pursuant to an Assignment and
Assumption of Lease dated as of May 24, 1995; Britannia Gateway, LLC assigned
its interest under the Master Lease to Britannia Biotech Gateway Limited
Partnership, a Delaware limited partnership ("Master Lessor"), pursuant to an
Assignment and Assumption of Lease dated as of August 8, 1996. An accurate and
complete copy of the Master Lease is attached hereto as Exhibit A. Except as
otherwise expressly provided herein, any capitalized terms herein without
definition shall have the same meaning as they have in the Master Lease.
B. Sublessor desires to sublease to Sublessee, and Sublessee desires to
Sublease from Sublessor, the Subleased Premises during the Term, as more
particularly described herein, pursuant to the terms and provisions hereof.
Now, Therefore, in consideration of the covenants and conditions contained
herein, Sublessor and Sublessee agree as follows:
AGREEMENT
1. Term. The term of this Sublease (the "Term") shall commence on the
later of May 1, 1999 or the date Master Lessor consents to this Sublease (the
"Commencement Date") and shall expire, unless sooner terminated or extended
pursuant to the further provisions hereof, at 11:59 p.m. on April 30, 2001, or
such earlier date as the Master Lease may be terminated pursuant to the terms
thereof. With the advance written consent of the Sublessor, which consent may
be withheld in the sole discretion of Sublessor, Sublessee may extend the Term
on two (2) occasions for a period of six (6) months each at the same rental rate
as shown in Section 3 below following written notice from Sublessee to Sublessor
no later than sixty (60) days prior to the date when this Sublease shall have
otherwise terminated. In no event shall the Term extend beyond 11:59 p.m. on
April 30, 2002.
2. Subleased Premises. During the Term, Sublessor hereby subleases to
Sublessee, and Sublessee hereby subleases from Sublessor, on the terms and
conditions set forth herein, four thousand one hundred ninety one (4,191) square
feet of the Premises in the Building, as more particularly described on Exhibit
B hereto and made a part hereof (the "Subleased Premises").
1.
3. Rent. (a) Commencing as of the Commencement Date and continuing
thereafter on the first (1/st/) day of each and every month during the Term,
Sublessee shall pay to Sublessor in advance $18,859.50 ($4.50 per square foot)
as rent for the Subleased Premises (the "Rent"). Rent for any period less than
a calendar month shall be a pro rata portion of the monthly installment. Rent
shall be payable to Sublessor, in advance, in lawful money of the United States,
without prior notice, demand, or offset (except as permitted in the Master
Lease), on or before the first day of each calendar month during the Term, at
the address set forth herein below or at such other address as may be designated
in writing from time to time. The first month's Rent payable hereunder shall be
paid by Sublessee upon the Commencement Date. In addition, upon the
Commencement Date, Sublessee shall pay Sublessor the sum of Twenty Thousand
Dollars ($20,000) that shall be held as a security deposit by Sublessor.
(b) Sublessor shall be responsible for the payment of property taxes,
property insurance (Building only), common area maintenance, janitorial (office
area and lavatories in the Subleased Premises, only), HVAC (unless such services
are requested by Sublessee during times when such services are not required by
Sublessor), utilities on the Premises, property dues, elevator maintenance,
sprinklers, security, garbage, pest control, earthquake insurance, water
treatment, HVAC maintenance, landscaping and parking lot maintenance, autoclave
and cagewasher preventive maintenance, or any other costs that Sublessor is
required to pay under the Master Lease pursuant to its terms. Anything in this
Sublease to the contrary notwithstanding, Sublessor shall not be responsible for
any other services required by Sublessee. Other services that are required by
Sublessee may be negotiated between Sublessor and Sublessee and, if appropriate,
billed to Sublessee at Sublessor's actual cost for such service.
(c) In the event of any casualty or condemnation affecting the
Subleased Premises, Rent payable by Sublessee shall be abated hereunder, but
only to the extent that Rent under the Master Lease is abated with respect to
the Subleased Premises, and Sublessee waives any right to terminate the Sublease
in connection with such casualty or condemnation except to the extent the Master
Lease is also terminated as to the Subleased Premises or any material portion
thereof. In the event of the termination of Sublessor's interest as "Tenant"
under the Master Lease for any reason, then this Sublease shall terminate
coincidentally therewith without such termination constituting a default of
Sublessor or Sublessee. In the event of any taking, Sublessee shall have no
claim to any award. In the event of any casualty, Sublessor shall perform such
restoration as is required of Sublessor pursuant to the Master Lease and, to the
extent such casualty is the result of Sublessee's action or inaction, Sublessee
shall restore the Subleased Premises as soon as reasonably practicable.
(d) Anything in this Sublease to the contrary notwithstanding,
Sublessee shall be liable for, and shall pay and deliver evidence of payment
prior to delinquency, all taxes levied against any personal property, fixtures,
machinery, equipment, apparatus, systems and appurtenances or improvements
placed by or on behalf of Sublessee in, about, upon or in connection with the
Subleased Premises.
4. Condition of the Subleased Premises. (a) Sublessor represents and
warrants that, as of the Commencement Date: (i) all systems that are essential
to the operation of the Building (e.g., HVAC, electrical, roof and plumbing
systems) are in good working condition; and (ii) that the Premises are free of
any defects and violations of applicable law. Except as
2.
expressly set forth in this Section 4(a): (i) Sublessor has made no
representations or warranties of any kind or nature whatsoever respecting the
Subleased Premises, their condition or suitability for Sublessee's use; and (ii)
Sublessee agrees to accept the Subleased Premises "as is, where is," with all
faults, without any obligation on the part of Sublessor to modify, improve or
otherwise prepare the Subleased Premises for Sublessee's occupancy.
(b) Sublessor has not made an independent investigation of the
Premises or determination with respect to the physical and environmental
condition of the Premises including without limitation the existence of any
underground tanks, pumps, piping, toxic or hazardous substances on the Premises.
No investigation has been made by Sublessor to ensure compliance with the
"American With Disabilities Act" ("ADA"). ADA may require a variety of changes
to the Subleased Premises, including potential removal of barriers to access by
disabled persons and provision of auxiliary aids and services for hearing,
vision or speech impaired persons. Sublessee shall rely solely on its own
investigations and/or that of a licensed professional specializing in the areas
referenced in this Section 4(b).
5. Use. Sublessee may use the Subleased Premises as administrative
offices, for research and development purposes and/or as a vivarium to the
extent permitted under the Master Lease and for no other purpose without the
approval of the Master Lessor and Sublessor. Sublessee will not enter, nor
allow any agent, independent contractor or other person access from the
Subleased Premises to any other portion of, the Premises without an escort by an
employee of Sublessor. Sublessor shall have the right to inspect the Subleased
Premises at any time after giving Sublessee twenty-four (24) hours notice;
provided, however, that Sublessor shall have the unrestricted right to access
the Subleased Premises at any time, without notice, in the event of an
emergency. Sublessee acknowledges and agrees that the operation and use of the
Subleased Premises may require that Sublessee apply for and receive licenses
and/or permits from various federal, state and local governments, and Sublessee
covenants and agrees to apply for and receive such licenses and/or permits as
are required. Sublessee shall provide to Sublessor copies of any such licenses
and/or permits to the extent applicable to the Subleased Premises. Sublessee
acknowledges, agrees and covenants that its occupancy, operation and use of such
Subleased Premises and/or its use and handling of animals shall be in accordance
with: (a) all applicable state and federal regulations; (b) all licenses and
permits that either Sublessee or Sublessor has received or receives in the
future respecting such Subleased Premises; and (c) all policies and procedures
Sublessor has reasonably promulgated respecting such Subleased Premises. In the
event of any disagreement concerning the interpretation of such licenses,
permits, policies and/or procedures, the determination of the employee of
Sublessor charged with ensuring compliance with such licenses, permits, policies
and/or procedures shall be controlling.
6. Equipment Repair. Sublessee shall pay for any required: (a)
autoclave and cagewasher repairs to the extent not covered under the preventive
maintenance contracts for such equipment; and (b) repairs to equipment other
than autoclaves and cagewashers. All required repair work for autoclaves and
cagewashers shall be performed by Sublessor's preventive maintenance suppliers.
7. Master Lease. This Sublease shall be subject and subordinate to all
of the terms and provisions of the Master Lease. Except for payments of Rent
(which payments shall be made by Sublessor) and except for those provisions of
the Master Lease excluded by Paragraph 8
3.
below, Sublessee hereby assumes and agrees to perform, during the Term, all of
Sublessor's obligations under the Master Lease to the extent such obligations
are applicable to the Subleased Premises and accrue after the date hereof
pursuant to this Sublease.
8. Incorporation of Master Lease.
(a) Except as otherwise provided herein, all of the terms and
provisions of the Master Lease are incorporated into and made a part of this
Sublease and the rights and obligations of the parties under the Master Lease
are hereby imposed upon the parties hereto with respect to the Subleased
Premises, the Sublessor being substituted for the "Landlord" in the Master
Lease, the Sublessee being substituted for the "Tenant" in the Master Lease, and
this Sublease being substituted for the "Lease" in the Master Lease. The parties
specifically agree that any provisions relating to any construction obligations
of "Landlord" under the Master Lease with respect to construction that occurred
or was to have occurred prior to the Commencement Date hereof, are hereby
deleted. Sublessor shall not be liable to Sublessee for any failure by Master
Lessor to perform its obligations under the Master Lease, nor shall such failure
by Master Lessor excuse performance by Sublessee of its obligations hereunder;
provided, however, that Sublessor shall use its commercially reasonable efforts
to cause Master Lessor to perform its obligations under the Master Lease.
Anything in the Master Lease to the contrary notwithstanding, the liability of
Sublessor for its obligations under this Sublease is limited solely to
Sublessor's interest in the Master Lease, and no personal liability shall at any
time be asserted or enforceable against any other assets of Sublessor or against
Sublessor's stockholders, directors, officers or partners on account of any of
Sublessor's obligations or actions under this Sublease. The following Sections
of the Master Lease are not incorporated herein: 1.1, 2.1, 2.2, 2.3, 2.4, 2.6,
3.1, 4.1, Article 5, Article 6, Article 7, Article 9, Article 11, Article 12,
Section 13.1, Section 15.1, Article 17, Section 18.1(b) (failure to pay Rent in
accordance with Section 3 of this Sublease shall constitute an event of default
hereunder), Section 20.1, 21.1, 21.15 and Exhibits A-E.
(b) Sublessee hereby agrees to indemnify and hold harmless Sublessor
from and against any and all claims, liabilities, losses, damages and expenses
(including reasonable attorneys' fees) incurred by Sublessor arising out of,
from or in connection with (i) the use or occupancy of the Subleased Premises by
Sublessee, (ii) any breach or default by Sublessee under this Sublease or (iii)
the failure of Sublessee to perform any obligation under the terms and
provisions of the Master Lease assumed by Sublessee hereunder or required to be
performed by Sublessee as provided herein, from and after the Commencement Date
of this Sublease.
(c) Sublessor hereby agrees to indemnify and hold harmless Sublessee
from and against any and all claims, liabilities, losses, damages and expenses
(including reasonable attorneys' fees) incurred by Sublessee arising out of,
from or in connection with (i) Sublessor's breach or default of any provision of
this Sublease or any provisions of the Master Lease not assumed by Sublessee
hereunder or (ii) acts or omissions of Sublessor under the Master Lease in
connection with the Subleased Premises prior to the Commencement Date of this
Sublease.
4.
9. Sublessor's Obligations.
(a) Provided that Sublessee is not in default under the terms of this
Sublease, Sublessor agrees to make timely payments of the Rent due under the
Master Lease to the end that the Master Lease shall not be terminated due to the
default of Sublessor.
(b) To the extent that the provision of any services or the
performance of any maintenance or any other act (collectively "Master Lessor
Obligations") is the responsibility of Master Lessor, Sublessor, upon
Sublessee's request, shall make reasonable efforts to cause Master Lessor under
the Master Lease to perform such Master Lessor Obligations; provided, however,
that in no event shall Sublessor be liable to Sublessee for any liability, loss
or damage whatsoever in the event that Master Lessor should fail to perform the
same, nor shall Sublessee be entitled to withhold the payment of Rent or
terminate this Sublease, unless such failure is the result of an event of
default on the part of Sublessor under this Sublease, the Master Lease, or both.
It is expressly understood that Sublessor does not assume Master Lessor
Obligations and that the services and repairs that are incorporated herein by
reference, including but not limited to the furnishing of elevators, utilities,
cleaning, janitorial or other services or maintenance, restoration (following
casualty or destruction), or repairs to the Building, Premises and/or Subleased
Premises will in fact be furnished by Master Lessor and not Sublessor, except to
the extent otherwise provided herein.
(c) Except as provided in this Section 9, Sublessor shall have no
other obligations to Sublessee with respect to the Subleased Premises or the
performance of the Master Lessor Obligations.
10. Assignment and Subletting. Sublessor shall not assign, sublet,
transfer, pledge, hypothecate or otherwise encumber the Subleased Premises, this
Sublease or any interest therein, or permit the use or occupancy of the
Subleased Premises by any other person other than Sublessee. Any assignment,
further subletting, occupancy or use without the prior consent of Sublessee
shall, at the option of Sublessee, terminate this Sublease.
11. Early Termination of Master Lease. If, without the fault of Sublessor
or Sublessee, the Master Lease should terminate prior to the expiration of this
Sublease, neither party shall have any liability to the other party. To the
extent that the Master Lease grants Sublessor any discretionary right to
terminate the Master Lease, whether due to casualty, condemnation or otherwise,
Sublessor shall be entitled to exercise or not exercise such right in its
complete and absolute discretion; provided, however, that Sublessor shall use
reasonable efforts to give to Sublessee as much prior notice of its intent to
terminate as practicable.
12. Consent of Master Lessor. If Sublessee desires to take any action
that requires the consent of Master Lessor pursuant to the terms of the Master
Lease, including, without limitation, making any modification, alteration or
improvement of the Subleased Premises or entering into a further sublease or
assignment of this Sublease, and in any event if Sublessee desires to make any
alternation to the Subleased Premises, then, notwithstanding anything to the
contrary herein, (a) Sublessor shall have the same rights of approval or
disapproval as Master Lessor has under the Master Lease, (b) Sublessee shall not
take any such action until it obtains the consent of both Sublessor and Master
Lessor and (c) Sublessee shall request that Sublessor
5.
obtain Master Lessor's consent on Sublessee's behalf, unless Sublessor agrees
that Sublessee may contact Master Lessor directly with respect to the specific
action for which Master Lessor's consent is required.
13. Surrender of Subleased Premises. In lieu of any obligation or
liability set forth in the Master Lease, upon the termination of the Sublease,
Sublessee shall surrender the Subleased Premises to Sublessor broom-clean and in
as good a condition as on the Commencement Date, ordinary wear and tear
excepted. In addition, Sublessee shall remove any alterations, additions and
improvements (whether or not made with Sublessor's consent), prior to the
termination of the Sublease and restore the Subleased Premises to its prior
condition, ordinary wear and tear excepted, repairing all damage caused by or
related to any such removal, all at Sublessee's expense.
14. No Third Party Rights. The benefit of the provisions of this Sublease
is expressly limited to Sublessor and Sublessee and their respective permitted
successors and assigns. Under no circumstances will any third party be
construed to have any rights as a third party beneficiary with respect to any of
said provisions; provided, however, that Master Lessor shall be entitled to the
benefit of Sublessee's assumption of Sublessor's obligations, as "Tenant" under
the Master Lease, pursuant to Section 9 above.
15. Time of Essence. It is expressly understood and agreed that time is
of the essence with respect to each and every provision of this Sublease.
16. Attorneys' Fees. If any action or proceeding at law or in equity
shall be brought to enforce or interpret any of the provisions of this Sublease,
the prevailing party shall be entitled to recover from the other party its
reasonable attorneys' fees and costs incurred in connection with the prosecution
or defense of such action or proceeding.
17. Multiple Parties. Except as otherwise expressly provided herein, if
more than one person or entity is named herein as either Sublessor or Sublessee,
the obligations of such multiple parties shall be the joint and several
responsibility of all persons or entities named herein as such Sublessor or
Sublessee.
18. Approval of Master Lessor. This Sublease shall be conditioned upon,
and shall not take effect until, receipt of the written consent of Master Lessor
thereto. Upon receipt of such consent, this Sublease shall be effective as of
the Commencement Date. Sublessor and Sublessee acknowledge and agree that in
granting such consent, notwithstanding any other provisions contained in or
implied in this Sublease, Master Lessor shall not be deemed or construed (a) to
have released Sublessor from any responsibility for the full and timely
performance of all obligations of Sublessor as Tenant under the Master Lease as
it pertains to the Subleased Premises, nor (b) to have authorized Sublessor to
act on Master Lessor's behalf in exercising or waiving any rights, remedies or
privileges of Master Lessor as Landlord under the Master Lease as it pertains to
the Subleased Premises, nor (c) to have assumed, incurred or undertaken any
obligations or liabilities running directly to Sublessee with respect to the
Subleased Premises, it being the explicit intention and understanding of the
parties that, notwithstanding the incorporation by reference of a portion of the
Master Lease into this Sublease, Master Lessor and Sublessor shall look solely
to one another for the performance of
6.
their respective obligations with respect to the Premises as Landlord and Tenant
under the Master Lease, and that Sublessor and Sublessee shall look solely to
one another for the performance of their respective obligations with respect to
the Subleased Premises under this Sublease.
EXECUTED as of the date first written above.
"SUBLESSOR" "SUBLESSEE"
TULARIK INC. ▇▇▇▇▇▇▇ PHARMACEUTICALS, INC.
a Delaware corporation a Delaware corporation
By: /s/ ▇▇▇▇ ▇▇▇▇▇ By:
-------------------------------------------- -------------------------------------------
Title: Director, Finance & Administration and Title: Director, Facilities
Assistant Secretary
7.
CONSENT OF MASTER LESSOR
Britannia Biotech Gateway, Limited Partnership, "Master Lessor" under the
Master Lease identified in that certain Sublease dated, for reference purposes,
May 1, 1999 to which this Consent is attached, hereby consents to said Sublease.
This Consent shall not be deemed to relieve Sublessor, as Tenant under the
Master Lease, from any obligation or liability thereunder, nor shall this
Consent be deemed Master Lessor's consent to any further subletting or
assignment.
MASTER LESSOR:
BRITANNIA BIOTECH GATEWAY, LIMITED PARTNERSHIP
A Delaware limited partnership
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇
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Britannia Gateway, LLC, a California limited liability company
Managing Partner
Name: ▇. ▇. ▇▇▇▇▇▇▇
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Title: Manager
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Date: 5/6/99
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8.