EXHIBIT 10.64
SUBLEASE
1. PARTIES
This Sublease is entered into by and between THE SCRIPPS RESEARCH
INSTITUTE (hereinafter, "Sublessor") and AGOURON PHARMACEUTICALS, INC.
(hereinafter, "Sublessee"), as a Sublease under the Master Lease dated
January 26, 1994 entered into by THE REGENTS OF THE UNIVERSITY OF
CALIFORNIA as Landlord, and Sublessor under this Sublease as Tenant.
A copy of the Master Lease is attached hereto as Exhibit A and is
incorporated by reference herein. This Agreement shall be effective
("Effective Date") as of the later of November 1, 1996 or the date on
which TSRI delivers possession of any part of the Premises (as defined
below) to Agouron.
2. PROVISIONS CONSTITUTING SUBLEASE
A. Except as otherwise provided herein, this Sublease is subject to
all of the terms and conditions of the Master Lease set forth in
Exhibit A hereto, and Sublessee shall comply with the terms and
conditions in said Master Lease, to the extent said terms and
conditions are applicable to the Premises subleased pursuant to
this Sublease. Sublessee shall not commit or permit to be
committed on the Premises any act or omission which shall
violate any term or condition of the Master Lease.
B. Provided Sublessee is not in default hereunder, Sublessor agrees
not to exercise its early termination option as set forth in
paragraph 50 of the Master Lease.
C. No provision shall be construed to create any joint venture,
partnership, employer/employee, or agency relationship between
the parties to this Sublease agreement.
D. Except as otherwise provided herein, all of the terms and
conditions contained in the Master Lease (Exhibit A hereto) are
incorporated by reference as though fully set forth herein as
terms and conditions of this Sublease (with each reference
therein to Landlord and Tenant to be deemed to refer to
Sublessor and Sublessee) and, along with all of the following
Sections set out in this Sublease, shall be the complete terms
and conditions of this Sublease.
3. PREMISES
Sublessor leases to Sublessee and Sublessee hires from Sublessor the
following described Premises together with all improvements therein,
situated in the City of San Diego, County of San Diego, State of
California, located at 10280 North Torrey Pines Road, Suites 485A and
485B, and a storage room provided by the Landlord in the
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garage area (hereinafter, "Suite 485C"), totaling approximately 4550
rentable square feet (rsf), as outlined in the floor plan attached
hereto as Exhibit B and incorporated by reference herein.
4. TERM
A. The term of this Sublease shall be for a period of two (2) years
and five (5) months, commencing on November 1, 1996 and ending
at midnight on March 31, 1999, unless sooner terminated pursuant
to any provision hereof.
B. On the last day of the term hereof or on any sooner termination,
Sublessee shall surrender the Premises to Sublessor in the same
condition as when received, ordinary wear and tear excepted,
clean and free of debris and ready for immediate occupancy by a
new tenant.
C. In the event Sublessor is unable to deliver possession of the
Premises at the commencement of the term, Sublessor shall not be
liable for any damage caused thereby, nor shall this Sublease be
void or voidable. Sublessee shall not be liable for rent until
such time as Sublessor offers to deliver possession of the
Premises to Sublessee, but the term hereof shall not be extended
by such delay. Should Sublessor be unable to deliver possession
of any portion of the Premises by December 31, 1996, this
Sublease shall be voidable at the sole option of Sublessee. If
Sublessee, with Sublessor's consent, takes possession prior to
the commencement of the term, Sublessee shall do so subject to
all of the covenants and conditions hereof and shall pay rent
for the period ending with the commencement of the term at the
same rental as that prescribed for the first month of the term,
prorated at the rate of 1/30th thereof per day.
5. RENT AND OTHER CHARGES PAYABLE BY SUBLESSEE
Sublessee shall pay to sublessor as base rent ("Base Rent") for the
Premises in advance on the first day of each calendar month during the
remaining portion of the first calendar year of the term of this
Sublease (i.e., from November 1, 1996 through December 31, 1996)
without deduction, offset, prior notice or demand, in lawful money of
the United States, the sum of fourteen thousand, five hundred sixty
dollars ($14,560.00). The Base Rent shall be adjusted according to
the provisions, schedules and indices set forth in Paragraphs 4 and 7
of the Master Lease attached as Exhibit A hereto. Such adjustments to
the Sublessee's Base Rent shall be in a percentage equivalent to the
adjustments made to Sublessor's Base Rent under the Master Lease and
shall occur on the same date(s) that adjustments are made pursuant to
the Master Lease.
If the commencement date is not the first day of a calendar month, or
if the Sublease termination date is not the last day of a calendar
month, a prorated monthly installment shall be paid at the then
current rate for the fractional month during which the Sublease
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commences and/or terminates. Said Base Rent shall include operating
expenses, utilities, and janitorial service, except as otherwise
provided herein.
Receipt of $14,560.00 is hereby acknowledged for rental for the first
month. Receipt of an additional $14,560.00 as a non-interest-bearing
security deposit for performance under this Sublease is also
acknowledged. In the event Sublessee has performed all of the terms
and conditions of this Sublease throughout the term and has paid all
sums owing to Sublessor, upon Sublessee vacating the Premises, the
security deposit shall be returned to Sublessee.
6. USE
The Premises shall be used and occupied only for general office use
and for laboratories for scientific research, or any other use which
is reasonably comparable and for no other purpose. The Premises shall
not be used or occupied for any purpose inconsistent with San Diego
Municipal Code Section 101.0434, which applies to areas zoned for
scientific research.
Sublessee's business shall be established and conducted throughout the
term hereof in a first class manner. Sublessee shall not use the
Premises for, or carry on, or permit to be carried on, any offensive,
noisy or dangerous trade, business, manufacture, or occupation, nor
permit any auction sale to be held or conducted on or about the
Premises. Sublessee shall not do or suffer anything to be done upon
the Premises which will cause structural injury to the Premises or the
building of which the Premises forms a part. The Premises shall not
be overloaded and no machinery, apparatus or other appliance shall be
used or operated in or upon the Premises which will in any manner
injure, vibrate, or shake the Premises or the building of which it is
a part. No use shall be made of the Premises which will in any way
impair the efficient operation of the sprinkler system (if any) within
the building containing the Premises. Sublessee shall not leave the
Premises unoccupied or vacant during the term. No musical instrument
of any sort, or any noise making device, will be operated in or
allowed upon the Premises for the purpose of attracting trade or
otherwise. Sublessee shall not use or permit the use of the Premises
or any part thereof for any purpose which will increase the existing
rate of insurance upon the building in which the Premises are located,
or cause a cancellation or non-renewal of any policy covering the
building or any part thereof. If any action on the part of Sublessee
or use of the Premises by Sublessee shall cause, directly of
indirectly, any increase of Sublessor's insurance expense, said
additional expense shall be paid by Sublessee to Sublessor upon
written demand. No such payment by Sublessee shall limit Sublessor in
the exercise of any other rights or remedies, or constitute a waiver
of Sublessor's right to require Sublessee to discontinue such act or
use.
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7. HAZARDOUS MATERIALS
In addition to the provisions set forth in Paragraph 47 of the Master
Lease, Sublessee further agrees to the following provisions.
A. Sublessee shall indemnify Sublessor and Sublessor's affiliated
corporations, including TSRI, Scripps Health, Scripps Foundation
for Medicine and Science, and Scripps Institution of Medicine
and Science, and their respective trustees, officers, partners,
directors, shareholders, employees, contractors, agents,
successors, and assigns (collectively, "Sublessor's Persons")
and shall defend (with counsel previously approved by Sublessor
in writing, which approval shall not unreasonably be withheld)
and hold harmless Sublessor and Sublessor's Persons from and
against any and all claims, suits, court or administrative
proceedings, losses, costs, damages, liabilities, deficiencies,
fines, penalties, forfeitures, punitive damages or expenses
(including, without limitation, attorneys' fees), death of or
injury (including, without limitation, sickness or disease to
any person or tangible damage to any real or personal property
whatsoever, incurred by, arising out of, based upon or resulting
from (i) Sublessee's failure to perform or observe any of its
obligations or agreements under Paragraph 47 of the Master
Lease; (ii) the release, threatened release, generation,
discharge, storage, disposal or transportation of any Toxic
Material under, in or about, to or from the Premises occurring
or resulting from acts or omissions of Sublessee or Sublessee's
employees, agents, or invitees taking place on or after
Sublessee takes possession of the Premises (and not resulting
from any negligent or willful misconduct of Sublessor); or (iii)
the failure of Sublessee or its employees, agents or invitees to
comply with any environmental or hazardous substance laws. The
foregoing indemnification shall survive the expiration of the
Term or earlier termination of this Sublease.
B. As a material inducement to Sublessor to allow Sublessee to use
Toxic Materials in connection with its activities, Sublessee
agrees to deliver to Sublessor on November 1, 1996, November 1,
1997, November 1, 1998, and March 31, 1999 ("Disclosure Dates"),
a report disclosing to Sublessor the names and amounts of all
Toxic Materials which were stored, used, transported upon, or
disposed of on the Premises, or which Sublessee intends to
store, use or dispose of on the Premises, for the year prior to
and after each Disclosure Date. The matter to be identified in
the disclosure (the "Toxic Materials Report") shall be all
matter reasonably considered to be hazardous, toxic, infectious,
or radioactive, including all matter identified as Toxic
Materials or Hazardous Substances according to the Hazardous
Substance Laws referred to hereinabove. Said Toxic Materials
Report shall also list any and all governmental approvals or
permits required in connection with the presence of such Toxic
Materials on the Premises and a copy of the Hazardous Substances
business plan prepared pursuant to Health and Safety Code
Sections 25500, et seq. Sublessee shall deliver to Sublessor
true and correct copies of the following documents
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(hereinafter referred to as the "Documents"), relating to the
handling, storage, disposal and emission of Toxic Materials upon
written request: (i) permits; (ii) approvals; (iii) reports and
correspondence relating to the release of Toxic Materials; (iv)
storage and maintenance plans; (v) notice of violations of any
laws; (vi) plans relating to the installation of any storage
tanks to be installed in or under the Premises (provided, said
installation of tanks shall only be permitted after Sublessor
has given Sublessee its written consent to do so, which consent
may be withheld in Sublessor's sole discretion); and (vii) all
closure plans or any other documents required by any and all
federal, state and local governmental agencies and authorities
for any storage tanks installed in, on or under the Premises.
Sublessor acknowledges that it is not the intent of this Section
to prohibit Sublessee from carrying on its operations or to
unreasonably interfere with such operations. Sublessee may
carry on its operations according to the custom of the industry
so long as the use, presence and disposal of Hazardous Substance
is strictly and properly monitored according to all applicable
governmental requirements.
The aforementioned disclosures shall be hand-delivered, sent via
courier, or sent via overnight delivery and shall be addressed
to: Director, Environmental Health and Safety, The Scripps
Research Institute, 10550 North Torrey Pines Road, Mail Drop
BCC-078, La Jolla, CA 92037, phone: (619) 784-8240.
C. Notwithstanding the provisions of this Section, Sublessor shall
have the right to terminate this Sublease in the event that (i)
Sublessee uses the Premises for the generation, storage, use,
treatment or disposal of Toxic Materials in a manner prohibited
by applicable law and such use has a material adverse effect on
Sublessor or the Premises; (ii) Sublessee has been required by
any governmental authority to take remedial action in connection
with Toxic Materials contaminating the Premises if the
contamination resulted from Sublessee's action or use of the
Premises and such remedial action has a material adverse effect
on Sublessor or the Premises; or (iii) Sublessee is subject to
an enforcement order issued by any governmental authority in
connection with the use, disposal or storage of Toxic Materials
on the Premises and such enforcement order has a material
adverse effect on Sublessor or the Premises. Each of the
foregoing events shall be deemed to be a material default by
Sublessee under this Sublease.
D. Upon the expiration or upon any early termination of this
Sublease, Premises shall be returned by Sublessee to Sublessor
in good operating condition and free of Toxic Materials. At
that time, presuming there has been no release, discharge or
emission of Toxic Materials on the Premises during Sublessee's
occupancy thereof, Sublessee shall furnish to Sublessor, at
Sublessee's sole cost, the results of appropriate environmental
tests and studies as may be customary, reasonable, and in
accordance with all applicable requirements of governmental
entities and applicable environmental laws, so as to obtain
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assurance that the Premises are free from any Toxic Materials or
contamination in excess of legally permissible levels. If,
however, a release, discharge or emission of Toxic Materials has
occurred on the Premises during Sublessee's occupancy thereof,
Sublessee shall furnish to Sublessor, at Sublessee's sole cost,
a then-customary environmental audit or similar remediation plan
for the Premises, plus such additional tests and studies as may
be customary, reasonable or recommended by said audit, so as to
obtain a then-customary and reasonable verification that the
Premises are free from any Toxic Materials or contamination in
excess of legally permissible levels. If said tests or studies
indicate that there are any impermissible levels of Toxic
Materials on the Premises, then, to the extent such
impermissible levels of Toxic Materials were generated by
Sublessee, Sublessee shall pay for all costs necessary to clean
up and remedy said impermissible levels of Toxic Materials to
the extent such levels of Toxic Materials are not permitted by
applicable governmental laws or regulations. Sublessor shall
cooperate in good faith with Sublessee to approve a remediation
plan which mitigates the overall damages and costs. but if such
remediation plan involves a delay in completing the remediation,
then Sublessee shall agree to toll the statute of limitations
for the duration of said delay applicable to any claim against
Sublessee related to Sublessee's obligation to clean up Toxic
Materials. Provided, however, Sublessee shall have no duty with
respect to any such Toxic Materials which (i) were on the
Premises prior to the effective date, or (ii) were placed on the
Premises by means of spillage or seepage from a neighboring
property, or (iii) were generated by Sublessor.
E. Sublessee's obligations under this section and under Paragraph
47 of the Master Lease shall survive the termination of this
Sublease. During any period of time employed by Sublessee after
the termination of this Sublease to complete the removal from
the Premises of any such Toxic Materials, Sublessee shall
continue to pay the full Rent in accordance with this Sublease.
(Provided, however, to the extent that some or all of the
Premises continue to be used while the remediation work is being
conducted, then said rental income or value of the portion of
the Premises which are used shall be credited against the Rent
otherwise payable by Sublessee for the same premises and time
period.)
8. MISCELLANEOUS PROVISIONS
A. Parking: Sublessor shall provide Sublessee approximately
eighteen (18) parking spaces in the parking garage in accordance
with Paragraph 40 of the Master Lease (Exhibit A hereto).
B. Utility Usage: Sublessor and Sublessee intend to prorate the
cost of utility usage including air conditioning, heating and
electrical usage based on Sublessor being responsible for fifty-
five and five-tenths percent (55.5%) of such charges and
Sublessee being responsible for forty-four and five-tenths
percent (44.5%) of such charges. Should either party use
excessive utility
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services, then such party will be responsible for the cost of
the excess utility usage.
C. Telecommunications Room: Sublessor, upon reasonable notice to
Sublessee, will have access to the telecommunications room
located in the Premises leased to Sublessee as outlined on the
floor plan attached hereto as Exhibit B.
D. Warm Room: The parties hereto understand and acknowledge that
access to an incubation area or "warm room" is important to the
scientific research conducted by both parties. Since the
Premises contain a warm room to which both parties hereto desire
access, Sublessee agrees that, until a replacement solution (in
the form of additional warm room facilities) is identified,
Sublessor shall have unrestricted, exclusive access to the warm
room facilities contained within the leased Premises. In
consideration for said access, Sublessor agrees to reduce the
rent due to Sublessor from Sublessee by fifty percent (50%)
during the time Sublessor has access to the warm room facilities
within the leased Premises, until such time that a replacement
solution is in operation. Sublessor further agrees to use its
reasonable best efforts to make a replacement solution
available.
E. First Right to Negotiate: Sublessor will provide Sublessee with
a first right to negotiate to lease the remaining space occupied
by Sublessor if Sublessor vacates said space any time during the
term of the Sublease.
F. Storage Room: Sublessor and Sublessee agree to prorate the cost
of the storage room which provides deionized water and other
services, whereby Sublessee shall pay Sublessor a monthly
charge of $175.00/month with annual CPI adjustments, pursuant to
paragraph 49 of the Master Lease.
9. NOTICES
All notices or demands of any kind required or desired to be given by
Sublessor or Sublessee hereunder shall be in writing and shall be
deemed delivered forty-eight (48) hours after depositing the notice or
demand in the United States mail, certified or registered, postage
prepaid, addressed to the Sublessor or Sublessee, respectively, at the
addresses set forth after their signatures hereinbelow. All rent and
other payments due pursuant to this Sublease or the Master Lease shall
be made by Sublessee to Sublessor at the same address.
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IN WITNESS WHEREOF, the parties have executed this
Sublease by their duly authorized representatives as of the date set
forth above.
SUBLESSOR: SUBLESSEE:
THE SCRIPPS RESEARCH INSTITUTE AGOURON PHARMACEUTICALS, INC.
By: /S/ DONNA J. WESTON By: /S/ GLENN ZINSER
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Donna J. Weston
Title: Vice President and Title: VP, Operations
Chief Financial Officer
10550 N. Torrey Pines Road 10350 N. Torrey Pines Road
La Jolla, CA 92037 La Jolla, CA 92037
Dated: 11/4/96 Dated: 11/4/96
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