Exhibit 10.39
SUBLEASE
THIS SUBLEASE (this "Sublease") is made and entered into as of the 10th
day of December, 2001, by and between GATEWAY, INC., a Delaware corporation
(hereinafter called "Sublandlord"), and CELGENE CORPORATION, a Delaware
corporation (hereinafter called "Subtenant").
W I T N E S S E T H:
WHEREAS, by that certain Lease dated as of April 15, 1999 (the "Original
Lease") as amended by that certain First Amendment to Lease Agreement dated as
of April 17, 2000 (the "First Amendment"); that certain Second Amendment to
Lease dated concurrently herewith (the "Second Amendment"); and with the
Original Lease, the First Amendment and the Second Amendment hereinafter
collectively referred to as the "Prime Lease", a copy of which Prime Lease is
attached hereto as EXHIBIT "A" and by this reference made a part hereof,
Carramerica Development, Inc., a Delaware corporation (hereinafter, together
with its successors and assigns, called "Landlord"), leased to Sublandlord the
entirety of a building located at 4550 Towne Centre Court in San Diego,
California containing approximately 78,202 gross rentable square feet (the
"Premises" and sometimes also referred to herein as the "Building"); and
WHEREAS, subject to the consent of Landlord, Subtenant desires to sublease
from Sublandlord, and Sublandlord desires to sublease to Subtenant, the entire
Premises, all upon the terms and subject to the conditions and provisions
hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and promises contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby mutually
acknowledged, Sublandlord and Subtenant hereby agree as follows:
1. DEMISE: USE. Sublandlord hereby leases to Subtenant and Subtenant
hereby leases from Sublandlord the Premises for the term and rental and upon the
other terms and conditions hereinafter set forth, to be used and occupied by
Subtenant solely for the purpose of a specified Biohazard Level 1 biotech use as
set forth in the Prime Lease (the "Biotech Use") and for general office use and
for no other purpose, subject to the limitations set forth in the Prime Lease as
may be amended and supplemented pursuant to the Consent Agreement (as defined
below), including, without limitation, the provisions of paragraph 14 of the
Schedule of the Prime Lease as well as the provisions of paragraph 6 of the
Prime Lease. Notwithstanding the foregoing, (i) Subtenant shall be permitted to
use the Premises for the Biotech Use only so long as Subtenant has obtained
Landlord's consent thereto and complies with all of the terms and conditions
imposed upon the Biotech Use as set forth by Landlord in the Prime Lease and as
set forth in this Sublease, and (ii) in no event shall any vivarium used by
Subtenant in the Premises be used for any animals other than rodents.
2. TERM. The term of this Sublease shall commence (the "Commencement
Date") on the later of (i) the date possession of the Premises is delivered to
Subtenant, and (ii) one (1) day after the full execution and delivery to
Subtenant of this Sublease and the Consent Agreement, and, unless sooner
terminated pursuant to the provisions hereof, shall terminate on the earlier of
August 31, 2012 and the prior termination of the Term of the Prime Lease. As
used herein, the phrase "Lease Year" shall mean the twelve calendar month period
commencing on the Rent Commencement Date (as hereinafter defined) (or, if the
Rent Commencement Date is not the first day of a calendar month, then commencing
on the first day of the calendar month during which the Rent Commencement Date
occurs) and each anniversary thereof, except that (i) the first Lease Year shall
including that period of time from the Commencement Date up to and including the
Rent Commencement Date, and (ii) the last Lease Year may not be twelve calendar
months and shall terminate on the last day of the term of this Sublease.
Notwithstanding the foregoing, this instrument shall be deemed and agreed to be
a sublease only and not an assignment.
3. MINIMUM RENT.
(a) Commencing on the Rent Commencement Date, Subtenant shall pay to
Sublandlord minimum annual rental (hereinafter called "Minimum Rent") for
the Premises as follows:
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ANNUAL
MINIMUM RENT ANNUAL MINIMUM
RATE PER RENT (BASED ON
RENTABLE SQUARE 78,202 RENTABLE MONTHLY
TIME PERIOD FOOT SQUARE FEET) INSTALLMENTS
----------- ---- ------------ ------------
- --------------------------------------------------------------------------------
First Lease Year $22.44 $1,754,852.88 $146,237.74
- --------------------------------------------------------------------------------
Second Lease Year $23.23 $1,816,632.46 $151,386.04
- --------------------------------------------------------------------------------
Third Lease Year $24.04 $1,879,976.08 $156,664.67
- --------------------------------------------------------------------------------
Fourth Lease Year $24.88 $1,945,665.76 $162,138.81
- --------------------------------------------------------------------------------
Fifth Lease Year $25.75 $2,013,701.50 $167,808.46
- --------------------------------------------------------------------------------
Sixth Lease Year $26.65 $2,084,083.30 $173,673.61
- --------------------------------------------------------------------------------
Seventh Lease Year $27.58 $2,156,811.16 $179,734.26
- --------------------------------------------------------------------------------
Eighth Lease $28.55 $2,232,667.10 $186,055.59
- --------------------------------------------------------------------------------
Ninth Lease Year $29.55 $2,310,869.10 $192,572.43
- --------------------------------------------------------------------------------
Tenth Lease Year $30.58 $2,391,417.16 $199,284.76
- --------------------------------------------------------------------------------
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- --------------------------------------------------------------------------------
ANNUAL
MINIMUM RENT ANNUAL MINIMUM
RATE PER RENT (BASED ON
RENTABLE SQUARE 78,202 RENTABLE MONTHLY
TIME PERIOD FOOT SQUARE FEET) INSTALLMENTS
----------- ---- ------------ ------------
- --------------------------------------------------------------------------------
Eleventh Lease Year* $31.65 $2,475,093.30 $206,257.78
- --------------------------------------------------------------------------------
*Note: Sublandlord and Subtenant acknowledge and agree that as the
expiration of the Term of the Prime Lease is August 31, 2012, the eleventh
Lease Year shall consist solely of the month of August, 2012, and
accordingly the Annual Minimum Rent category for such eleventh Lease Year
as set forth in schedule above is for explanatory purposes only.
Annual Minimum Rent shall be due and payable in twelve equal installments.
Each such installment shall be due and payable in advance on the first day
of each calendar month of the term hereof. If the term of this Sublease
commences on a day other than the first day of a month or ends on a day
other than the last day of a month, Minimum Rent for such month shall be
prorated; prorated Minimum Rent for any such partial first month of the
term hereof shall be paid on the date on which the term commences.
Notwithstanding anything in this Sublease to the contrary, Subtenant shall
pay to Sublandlord the first monthly installment of Minimum Rent due under
this Sublease upon the execution and delivery of this Sublease by
Subtenant to Sublandlord.
(b) All Minimum Rent and additional rent shall be paid without
setoff or deduction whatsoever and shall be paid to Sublandlord at the
following address: Real Estate Administration, Gateway, Inc., 610 Gateway
Drive Y91, North Sioux City, South Dakota 97049 or at such other place as
Sublandlord may designate by notice to Subtenant.
(c) As used herein, the term "Rent Commencement Date" shall mean
that date which is nine (9) months after the Commencement Date.
(d) Notwithstanding anything to the contrary contained in this
Sublease, Sublandlord and Subtenant hereby acknowledge and agree that
prior to the Rent Commencement Date in no event shall Subtenant be
obligated to pay any Minimum Rent or any Operating Cost Share Rent or Tax
Share Rent (as such terms are hereinafter defined); provided, however,
Sublandlord and Subtenant acknowledge and agree that Subtenant shall be
responsible to pay or reimburse to Sublandlord any and all costs relating
to the Premises for that period of time following the Commencement Date up
to and including the Rent Commencement Date that exceed the monthly "Base
Expense Amount" (as hereinafter defined). As used herein, the "Base
Expense Amount" is an amount equal to $59,251.00 and represents the
average of the monthly expenses other than "Base Rent" (as defined in the
Prime Lease) incurred by Sublandlord for the Premises over the last twelve
(12) months prior
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to the date hereof. In clarification of the foregoing, Subtenant shall be
responsible for any and all costs related to the Premises for utilities,
heating, ventilating and air conditioning services, emergency generator
costs, construction hauling and or scavenger costs to the extent that such
costs exceed the average monthly cost for such expenses incurred by
Sublandlord during the prior twelve (12) month period. Subtenant shall pay
or reimburse such amounts to Subtenant within thirty (30) days following
Sublandlord's tender of an invoice therefore to Subtenant and any and all
such amounts shall be deemed additional rent due under this Sublease. In
addition to the foregoing, Subtenant shall be responsible to comply with
all of the insurance and indemnification provisions of this Sublease from
and after the Commencement Date.
4. ADDITIONAL RENT; PAYMENTS; INTEREST.
(a) Except for "Base Rent" (as such term is defined in the Prime
Lease and for the payment of which Subtenant shall have no obligation
under this Sublease), Subtenant shall also pay to Sublandlord all other
amounts payable by Sublandlord under the Prime Lease which are
attributable to the Premises or attributable to Subtenant, its agents,
employees, customers or invitees, including without limitation, the
Operating Cost Share Rent, the Tax Share Rent and Additional Rent (as such
terms are defined in the Prime Lease); provided, however, Sublandlord and
Subtenant acknowledge and agree that the rental and other payment
obligation for the period from the Commencement Date up to and including
the Rent Commencement Date shall be determined as set forth in Paragraph 3
(d) hereinabove. By way of example and not by way of limitation, charges
by Landlord for furnishing air conditioning or heating to the Premises at
times in addition to those certain times specified in the Prime Lease,
costs incurred by Landlord in repairing damage to the Building caused by
an employee of Subtenant, increased insurance premiums due as a result of
Subtenant's use of the Premises, and amounts expended or incurred by
Landlord on account of any default by Subtenant which gives rise to a
default under the Prime Lease would be amounts payable by Subtenant
pursuant to this Subsection 4(a).
(b) Each amount due pursuant to Subsection 4(a) above and each other
amount payable by Subtenant hereunder, unless a date for payment of such
amount is provided for elsewhere in this Sublease, shall be due and
payable on the fifth day following the date on which Landlord or
Sublandlord has given notice to Subtenant of the amount thereof.
(c) All amounts other than Minimum Rent payable to Sublandlord under
this Sublease shall be deemed to be additional rent due under this
Sublease. All past due installments of Minimum Rent and additional rent
which are not paid on or before the third (3rd) business day after such
amount is due shall bear interest from the date due until paid at the rate
per annum equal to five percent (5%) in excess of the Prime Rate (as
hereinafter defined) in effect from time to time, which rate shall change
from time to time as of the effective date of each change in the Prime
Rate, unless a lesser rate shall then be the maximum rate permissible by
law with respect thereto, in which event said lesser rate shall
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be charged. For the purposes of this Sublease, the term "Prime Rate" shall
mean the rate of interest announced from time to time by Bank One as its
prime or corporate base rate.
(d) Subtenant shall pay Landlord on the due dates for services
requested by Subtenant which are billed by Landlord directly to Subtenant
rather than Sublandlord.
(e) In addition to the Minimum Rent payable pursuant to Section 3
above, from and after the Rent Commencement Date, for each calendar year
of the term, Subtenant, as additional rent, shall pay Subtenant's
Percentage Share (which Sublandlord and Subtenant acknowledge and agree is
equal to 100%) of Operating Cost Share Rent, Tax Share Rent and Parking
Rent payable by Sublandlord for the then current calendar year.
Sublandlord shall give Subtenant written notice of Sublandlord's estimate
of the amount of additional rent per month payable pursuant to this
Subsection for each calendar year following Sublandlord's receipt of
Landlord's estimate of such amounts payable under the Prime Lease.
Thereafter, the additional rent payable pursuant to this Subsection shall
be determined and adjusted in accordance with the provisions below.
(f) The determination and adjustment of additional rent contemplated
under Subsection 4(e) above shall be made in accordance with the following
procedures:
(1) Upon receipt of a statement from Landlord specifying the
estimated Operating Cost Share Rent, Tax Share Rent and Parking Rent to be
charged to Sublandlord under the Prime Lease with respect to each calendar
year, or as soon after receipt of such statement as practicable,
Sublandlord shall give Subtenant written notice of its estimate of
additional rent payable under Subsection 4(e) for the ensuing calendar
year, which estimate shall be prepared based on the estimate received from
Landlord (as Landlord's estimate may change from time to time), together
with a copy of the statement received from Landlord. Sublandlord's
estimate of additional rent to be paid by Subtenant pursuant to this
Sublease shall not exceed Subtenant's Percentage Share of Landlord's
estimate delivered to Sublandlord pursuant to the Prime Lease (as
Landlord's estimate may change from time to time). On or before the first
day of each month during each calendar year, Subtenant shall pay to
Sublandlord as additional rent one-twelfth (1/12th) of such estimated
amount together with the Minimum Rent.
(2) In the event Sublandlord's notice set forth in Subsection
4(f)(1) is not given in December of the calendar year preceding the
calendar year for which Sublandlord's notice is applicable, as the case
may be, then until the calendar month after such notice is delivered by
Sublandlord, Subtenant shall continue to pay to Sublandlord monthly,
during the ensuing calendar year, estimated payments equal to the amounts
payable hereunder during the calendar year just ended. Upon receipt of any
such post-December notice Subtenant shall (i) commence as of the
immediately following calendar month, and continue for the remainder of
the calendar year, to pay to Sublandlord monthly such new estimated
payments and (ii) if the monthly installment of the new estimate of such
additional rent is greater than the monthly installment of the estimate
for the previous calendar year, pay
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to Sublandlord within thirty (30) days of the receipt of such notice an
amount equal to the difference of such monthly installment multiplied by
the number of full and partial calendar months of such year preceding the
delivery of such notice.
(3) Within thirty (30) days after the receipt by Sublandlord
of a final statement of such costs from Landlord with respect to each
calendar year, Sublandlord shall deliver to Subtenant a statement of the
adjustment to be made pursuant to Section 4(f) hereof for the calendar
year just ended, together with a copy of the statement received by
Sublandlord from Landlord. If on the basis of such statement Subtenant
owes an amount that is less than the estimated payments for the calendar
year just ended previously paid by Subtenant, Sublandlord shall credit
such excess to the next payments of rent coming due or, if the term of
this Sublease is about to expire, so long as Subtenant is not in default
under this Sublease, promptly refund such excess to Subtenant. If on the
basis of such statement Subtenant owes an amount that is more than the
estimated payments for the calendar year just ended previously made by
Subtenant, Subtenant shall pay the deficiency to Sublandlord within thirty
(30) days after delivery of the statement from Sublandlord to Subtenant.
(4) For partial calendar years during the term of this
Sublease, the amount of additional rent payable pursuant to Subsection
4(f) that is applicable to that partial calendar year shall be prorated
based on the ratio of the number of days of such partial calendar year
falling during the term of this Sublease to 365. The expiration or earlier
termination of this Sublease shall not affect the obligations of
Sublandlord and Subtenant pursuant to this Section 4, and such obligations
shall survive and remain to be performed after any expiration or earlier
termination of this Sublease.
5. CONDITION OF PREMISES AND CONSTRUCTION OF IMPROVEMENTS.
Subtenant hereby acknowledges and agrees that it is to demise the
Premises in an "as-is" condition and Subtenant's taking possession of the
Premises shall be conclusive evidence as against Subtenant that the
Premises were in good order and satisfactory condition when Subtenant took
possession. No promise of Sublandlord to alter, remodel or improve the
Premises, and no representation respecting the condition of the Premises
have been made by Sublandlord to Subtenant except to the extent expressly
set forth in this Sublease. Upon the expiration of the term hereof, or
upon any earlier termination of the term hereof or of Subtenant's right to
possession, Subtenant shall surrender the Premises in at least as good
condition as at the commencement of the term of this Sublease, ordinary
wear and tear excepted; provided, however, Sublandlord and Subtenant
acknowledge and agree that upon the expiration of the term of this
Sublease, Subtenant shall be permitted to surrender the Premises in the
condition in which Landlord will require that Sublandlord surrender same
to Landlord as provided for in the Prime Lease or as may be supplemented
by the Consent Agreement. Notwithstanding the foregoing, in the event of
the earlier termination of the term of this Sublease, then Subtenant shall
be required to remove from the Premises any and all alterations,
improvements or additions to the Premises installed therein by Subtenant
to return same to "shell" condition except for areas where Landlord and
Sublandlord retain the
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discretion to require that they be returned to the existing office
improvements (the Building lobby and Building restrooms) as set forth in
the Consent; provided, however, Subtenant shall be permitted to leave in
the Premises those alterations for which Subtenant has obtained
Sublandlord's consent to leave such alterations, additions and/or
improvements within the Premises upon the earlier termination of the term
of this Sublease. In connection with the foregoing, Sublandlord shall, if
requested to provide its determination at the time of receiving
Subtenant's request to perform the Subtenant Work (as hereinafter defined)
(along with all required information relating to such work, including
without limitation, all plans and specifications, working drawings, floor
plans, etc.), provide to Subtenant along with Sublandlord's acceptance or
non-acceptance of such plans and specifications and other documentation
with respect to Subtenant's Work Sublandlord's determination of what, if
any, portions of Subtenant's Work that Sublandlord shall permit Subtenant
to leave in the Premises upon the earlier termination of the term of this
Sublease.
6. THE PRIME LEASE.
(a) This Sublease and all rights of Subtenant hereunder and with
respect to the Premises are subject to the terms, conditions and
provisions of the Prime Lease. Subtenant hereby assumes and agrees to
perform faithfully and be bound by, with respect to the Premises, all of
Sublandlord's obligations, covenants, agreements and liabilities under the
Prime Lease and all terms, conditions, provisions and restrictions
contained in the Prime Lease except:
(i) for the payment of "Base Rent" (as such term is defined
in the Prime Lease);
(ii) that Subtenant shall not have any obligations to
construct or install tenant improvements except as may
be provided herein; and
(iii) that the following provisions of the Prime Lease do not
apply to this Sublease: any provisions in the Prime
Lease allowing or purporting to allow Sublandlord any
rent concessions or abatements or construction or
refurbishment allowances, any provisions allowing
Sublandlord to extend or renew the term of the Prime
Lease (provided if this Sublease is then in force, any
election or right of Sublandlord to renew or extend
shall not abrogate or affect Subtenant's right to extend
with Landlord as set forth in the Consent Agreement),
any provisions of the Prime Lease granting any option to
purchase or lease the Building or any other space in the
Project (provided, Sublandlord and Subtenant acknowledge
and agree that the foregoing shall not limit or restrict
any such options and rights that may be granted to
Subtenant directly from
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Landlord in the Consent Agreement so long as Sublandlord
incurs no liability or obligation in connection
therewith).
(b) Without limitation of the foregoing:
(i) Subtenant shall not make any changes, alterations or
additions in or to the Premises except as otherwise
expressly provided herein or in the Consent Agreement;
provided, however, the foregoing shall not limit or
restrict the obligation of Subtenant to obtain the
consent of Sublandlord to any such changes, alterations
or additions (such obligation shall be satisfied if the
Consent Agreement contains the consent of Sublandlord to
such changes, alterations or additions). In connection
therewith, Sublandlord and Subtenant acknowledge and
agree that Subtenant desires to make certain
alterations, additions and/or improvements to the
Premises following its occupancy thereof. In connection
with such work (hereinafter referred to as the
"Subtenant Work"), such work shall be performed at the
sole cost and expense of Subtenant and shall strictly
conform to all the terms and provisions of the Prime
Lease and the Consent Agreement. Subtenant shall obtain
the approval of both the Landlord and Sublandlord with
respect to any and all aspects of the Subtenant Work
prior to commencing same.
(ii) If Subtenant desires to take any other action and the
Prime Lease and/or Consent Agreement would require that
Sublandlord obtain the consent of Landlord before
undertaking any action of the same kind, Subtenant shall
not undertake the same without the prior written consent
of Sublandlord. Sublandlord may condition its consent on
the consent of Landlord being obtained and may require
Subtenant to contact Landlord directly for such consent;
(iii) All rights given to Landlord and its agents and
representatives by the Prime Lease and/or Consent
Agreement to enter the Premises shall inure to the
benefit of Sublandlord and their respective agents and
representatives with respect to the Premises;
(iv) Sublandlord shall also have all other rights, and all
privileges, options, reservations and remedies, granted
or allowed to, or held by, Landlord under the Prime
Lease and/or Consent Agreement or granted to Landlord in
the Consent Agreement;
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(v) Subtenant shall maintain insurance of the kinds and in
the amounts required to be maintained by Sublandlord
under the Prime Lease as well as set forth in the
Consent Agreement. All policies of liability insurance
shall name as additional insureds the Landlord and
Sublandlord and their respective officers, directors or
partners, as the case may be, and the respective agents
and employees of each of them; and
(vi) Subtenant shall not do anything or suffer or permit
anything to be done which could result in a default
under the Prime Lease or permit the Prime Lease to be
canceled or terminated.
(c) Notwithstanding anything contained herein or in the Prime Lease
which may appear to be to the contrary, Sublandlord and Subtenant hereby
agree as follows:
(i) Subtenant shall not assign, mortgage, pledge,
hypothecate or otherwise transfer or permit the transfer
of this Sublease or any interest of Subtenant in this
Sublease, by operation of law or otherwise, or permit
the use of the Premises or any part thereof by any
persons other than Subtenant and Subtenant's employees,
or sublet the Premises or any part thereof.
Notwithstanding the foregoing, Subtenant shall have the
right to assign this Sublease or sub-sublet all or any
portion of the Premises to an entity into which
Subtenant has merged or consolidated or to an entity to
which substantially all of Subtenant's assets are
conveyed (collectively a "Corporate Transaction")
without the consent of Sublandlord so long as such
assignee or sub-subtenant has a net worth equal to or
exceeding the greater of Subtenant's net worth (i) on
the execution date hereof and (ii) on the date of the
Corporate Transaction, provided the net worth
requirement for any assignment transaction other than a
Corporate Transaction shall be satisfactory to Landlord
and Sublandlord (in their sole discretion) and provided
that Subtenant delivers not less than thirty (30) days
prior written notice to Sublandlord and Landlord, which
notice shall include information satisfactory to
Sublandlord and Landlord in order to determine the net
worth both of the original Subtenant named herein and of
the successor subtenant immediately prior to such
assignment or sub-sublet. Subtenant shall otherwise have
the right to assign this Sublease or sublet all or any
portion of the Premises in accordance with the terms and
provisions of the Prime Lease and Sublandlord shall have
all of the same rights as the Landlord in connection
therewith. Further, any rights granted
9
to Subtenant herein to assign this Sublease or
sub-sublet all or any portion of the Premises without
the Sublandlord's consent shall be subject to the rights
and obligations of the Landlord under the Prime Lease to
consent thereto. In connection with any assignment of
this Sublease or sub-sublet of all or any portion of the
Premises as permitted Subtenant hereinabove, in no event
shall Sublandlord be entitled to any amount of rent or
other consideration received by Subtenant in connection
with such transfer in excess of the rent due under the
Sublease and if the rent or other consideration to be
received exceeds the amount to be paid by Subtenant
hereunder, Sublandlord also agrees to grant commercially
reasonable non-disturbance rights to such party.
(ii) Neither rental nor other payments hereunder shall abate
by reason of any damage to or destruction of the
Premises or the Building or any part thereof, unless,
and then only to the extent that, rental and such other
payments actually abate under the Prime Lease with
respect to the Premises on account of such event and
Sublandlord and Subtenant acknowledge and agree that in
the event monthly Rent (as defined in the Prime Lease)
is abated pursuant to the provisions of Section 4.F. of
the Prime Lease, then Subtenant shall be entitled to a
consequent abatement of rent due under this Sublease to
the extent that such monthly Rent actually abates under
the Prime Lease;
(iii) Sublandlord and Subtenant acknowledge and agree that in
the event the Prime Lease permits the Tenant thereunder
to terminate the Prime Lease in the event of any
casualty to the Premises, then other than as set forth
below, in no event shall Sublandlord, as the Tenant
under the Prime Lease, elect to so terminate the Prime
Lease without obtaining the consent or approval from
Subtenant as to such termination. Notwithstanding the
foregoing, in no event shall the right of Sublandlord to
elect to so terminate the Prime Lease be limited or
restricted in the event Sublandlord would have the right
to terminate the Prime Lease as set forth in Paragraph
9.A thereof in the circumstance where the time to
restore any such casualty would exceed two (2) months
and the restoration work would begin during the last
twelve (12) months of the Term of the Prime Lease if (a)
Sublandlord provides prior notice of such election to
Subtenant and (b) such termination right is conditioned
upon Subtenant
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having a written agreement with Landlord to continue in
possession and occupy the Premises without interruption
through exercise of Subtenant's option to extend set
forth in the Consent;
(iv) Subtenant shall not have any right to exercise or have
Sublandlord exercise any option under the Prime Lease,
including, without limitation, any option to extend the
term of the Prime Lease or lease additional space
(provided, Sublandlord and Subtenant acknowledge and
agree that the foregoing shall not limit or restrict any
such options and rights that may be granted to Subtenant
directly from Landlord in the Consent Agreement so long
as Sublandlord incurs no liability or obligation in
connection therewith); and
(v) In the event of any conflict between the terms,
conditions and provisions of the Prime Lease and of this
Sublease, the terms, conditions and provisions of this
Sublease shall, in all instances, govern and control. In
the event of any conflict between the terms, conditions
and provisions of this Sublease and the Consent
Agreement, as between Sublandlord and Subtenant, the
terms, conditions and provisions of this Sublease shall,
in all instances, govern and control; provided, however,
Sublandlord and Subtenant acknowledge and agree that as
between Landlord and Subtenant, the terms, conditions
and provisions of the Consent Agreement shall, in all
instances, govern and control.
(d) It is expressly understood and agreed that Sublandlord does not
assume and shall not have any of the obligations or liabilities of
Landlord under the Prime Lease and that Sublandlord is not making the
representations, warranties or indemnifications, if any, made by Landlord
in the Prime Lease. With respect to work, services, repairs and
restoration or the performance of other obligations required of Landlord
under the Prime Lease, Sublandlord's sole obligation with respect thereto
shall be to request the same, upon written request from Subtenant, and to
use reasonable efforts, at Subtenant's sole cost and expense, to obtain
the same from Landlord. Sublandlord shall not be liable in damages, nor
shall rent abate hereunder, for or on account of any failure by Landlord
to perform the obligations and duties imposed on it under the Prime Lease.
Sublandlord and Subtenant acknowledge and agree that any repair,
maintenance and/or replacement obligations with respect to the Premises
which are the responsibility of the Sublandlord, as Tenant under the Prime
Lease, shall be performed by Subtenant at Subtenant's sole cost and
expense. In the event that a condition exists in the Premises that
Landlord is obligated to repair under the terms of the Prime Lease,
Subtenant shall so advise Sublandlord, and Sublandlord, in turn, shall
promptly advise Landlord thereof. At Subtenant's request, in the event
that Landlord fails to fulfill any
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repair or maintenance obligation under the terms of the Prime Lease with
respect to the Premises, Sublandlord shall use its reasonable efforts to
have Landlord fulfill such repair and maintenance obligations, all of
which reasonable efforts shall be at Subtenant's sole cost and expense.
(e) Except for the Consent Agreement, nothing contained in this
Sublease shall be construed to create privity of estate or contract
between Subtenant and Landlord, except the agreements of Subtenant in
Sections 10 and 11 hereof in favor of Landlord, and then only to the
extent of the same.
7. DEFAULT BY SUBTENANT.
(a) Upon the happening of any of the following:
(i) Subtenant fails to pay any Minimum Rent within five (5)
days after the date it is due;
(ii) Subtenant fails to pay any other amount due from
Subtenant hereunder and such failure continues for five
(5) days after notice thereof from Sublandlord to
Subtenant;
(iii) Subtenant fails to perform or observe any other covenant
or agreement set forth in this Sublease and such failure
continues for fifteen (15) days except that if such
default is not capable of being cured within such
fifteen (15) day period, then so long as Subtenant
continues to diligently attempt to cure such default,
the fifteen (15) day period shall be extended to sixty
(60) days or such lesser period as is reasonably
necessary to complete the cure of such default after
notice thereof from Sublandlord to Subtenant; or
(iv) any other event occurs which involves Subtenant or the
Premises and which would constitute a default under the
Prime Lease if it involved Sublandlord or the Premises
and such default continues for fifteen (15) days after
notice thereof from Sublandlord to Subtenant except that
if such default is not capable of being cured within
such fifteen (15) day period, then so long as Subtenant
continues to diligently attempt to cure such default,
the fifteen (15) day period shall be extended to sixty
(60) days or such lesser period as is reasonably
necessary to complete the cure of such default;
Subtenant shall be deemed to be in default hereunder, and Sublandlord may
exercise, without limitation of any other rights and remedies available to
it hereunder or at law or in equity,
12
any and all rights and remedies of Landlord set forth in the Prime Lease
in the event of a default by Sublandlord thereunder.
(b) In the event Subtenant fails or refuses to make any payment or
perform any covenant or agreement to be performed hereunder by Subtenant,
Sublandlord may make such payment or undertake to perform such covenant or
agreement (but shall not have any obligation to Subtenant to do so). In
such event, amounts so paid and amounts expended in undertaking such
performance, together with all costs, expenses and attorneys' fees
incurred by Sublandlord in connection therewith, shall be additional rent
hereunder.
8. NONWAIVER. Failure of either party to declare any default or delay in
taking any action in connection therewith shall not waive such default. No
receipt of moneys by Sublandlord from Subtenant after the termination in any way
of the term or of Subtenant's right of possession hereunder or after the giving
of any notice shall reinstate, continue or extend the term or affect any notice
given to Subtenant or any suit commenced or judgment entered prior to receipt of
such moneys.
9. CUMULATIVE RIGHTS AND REMEDIES. All rights and remedies of Sublandlord
under this Sublease shall be cumulative and none shall exclude any other rights
or remedies allowed by law.
10. WAIVER OF CLAIMS AND INDEMNITY.
(a) Subtenant hereby releases and waives any and all claims against
Landlord and Sublandlord and each of their respective officers, directors,
partners, agents and employees for injury or damage to person, property or
business sustained in or about the Building or the Premises by Subtenant
other than by reason of the active negligence or wilful misconduct and
except in any case which would render this release and waiver void under
law.
(b) Subtenant agrees to indemnify, defend and hold harmless Landlord
and Sublandlord and each of their respective officers, directors,
partners, agents and employees, from and against any and all claims,
demands, costs and expenses of every kind and nature, including attorneys'
fees and litigation expenses, arising from Subtenant's use and occupancy
of the Premises, Subtenant's construction of any leasehold improvements in
the Premises, any release, discharge, storage, production, use or disposal
of Hazardous Substances in the Premises caused or permitted by Subtenant
or its agents, contractors, employees, licensees or invitees or in any way
relating to any Hazardous Substances brought onto the Premises by
Subtenant or its agents, contractors, employees, licensees or invitees,
the installation, maintenance, repair and/or removal of any and all
signage installed by Subtenant, including, without limitation, the
Building Signage, or from any breach or default on the part of Subtenant
in the performance of any agreement or covenant of Subtenant to be
performed under this Sublease or the Consent Agreement or pursuant to the
terms of this Sublease or the Consent Agreement, or from any act or
neglect of Subtenant or its agents, officers,
13
employees, guests, servants, invitees or customers in or about the
Premises. In addition, the foregoing indemnification of Sublandlord and
the other noted parties herein shall include any and all liability
assessed, imposed or charged against Subtenant for any violation of the
provisions of the Prime Lease and/or Consent Agreement with respect to
their respective provisions relating to Hazardous Substances, which
violation was not caused by Sublandlord or its agents, contractors or
employees. In case any such proceeding is brought against any of said
indemnified parties, Subtenant covenants, if requested by Sublandlord, to
defend such proceeding at its sole cost and expense by legal counsel
reasonably satisfactory to Sublandlord.
(c) Sublandlord agrees to indemnify, defend and hold harmless
Subtenant and its officers, directors, partners, agents and employees,
from and against any and all claims, demands, cost and expenses of every
kind and nature, including attorneys' fees and litigation expenses,
arising from (i) any breach or default by Sublandlord under the Prime
Lease (which breach or default was not attributable to Subtenant or its
agents, contractors, employees, licensees or invitees under this Sublease
and/or the Consent Agreement), and (ii) the active negligence or willful
misconduct of Sublandlord or its agents, officers or employees or from any
breach or default on the part of Sublandlord in the performance of any
agreement or covenant of Sublandlord to be performed under this Sublease.
In case any such proceeding is brought against any of said indemnified
parties, Sublandlord covenants, if requested by Subtenant, to defend such
proceeding at its sole cost and expense by legal counsel reasonably
satisfactory to Subtenant.
11. WAIVER OF SUBROGATION. Anything in this Sublease to the contrary
notwithstanding, Sublandlord and Subtenant each hereby waive any and all rights
of recovery, claims, actions or causes of action against the other and the
officers, directors, partners, agents and employees of each of them, and
Subtenant hereby waives any and all rights of recovery, claims, actions or
causes of action against Sublandlord and Landlord and their respective agents
and employees for any loss or damage that may occur to the Premises, or any
improvements thereto, or any personal property of any person therein or in the
Building, by reason of fire, the elements or any other cause insured against
under valid and collectible fire and extended coverage insurance policies,
regardless of cause or origin, including negligence, except in any case which
would render this waiver void under law.
12. BROKERAGE COMMISSIONS. Each party hereby represents and warrants to
the other that other than Julien J. Studley, Inc. and The Staubach Company
(whose commissions shall be payable by Sublandlord), it has had no dealings with
any real estate broker or agent in connection with this Sublease, and that it
knows of no real estate broker or agent who is or might be entitled to a
commission in connection with this Sublease. Each party agrees to protect,
defend, indemnify and hold the other harmless from and against any and all
claims inconsistent with the foregoing representations and warranties for any
brokerage, finder's or similar fee or commission in connection with this
Sublease, if such claims are based on or relate to any act of the indemnifying
party which is contrary to the foregoing representations and warranties.
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13. SUCCESSORS AND ASSIGNS. This Sublease shall be binding upon and inure
to the benefit of the successors and assigns of Sublandlord and shall be binding
upon and inure to the benefit of the successors of Subtenant and, to the extent
any such assignment may be approved, Subtenant's assigns. The provisions of
Subsection 6(e) and Sections 10 and 11 hereof shall inure to the benefit of the
successors and assigns of Landlord.
14. ENTIRE AGREEMENT. This Sublease contains all the terms, covenants,
conditions and agreements between Sublandlord and Subtenant relating in any
manner to the rental, use and occupancy of the Premises. No prior agreement or
understanding pertaining to the same shall be valid or of any force or effect.
The terms, covenants and conditions of this Sublease cannot be altered, changed,
modified or added to except by a written instrument signed by Sublandlord and
Subtenant.
15. NOTICES.
(a) In the event any notice from the Landlord or otherwise relating
to the Prime Lease is delivered to the Premises or is otherwise received
by Subtenant, Subtenant shall, as soon thereafter as possible, but in any
event within one (1) business day, deliver such notice to Sublandlord if
such notice is written or advise Sublandlord thereof by telephone if such
notice is oral.
(b) In the event any default notice from the Landlord is received by
Sublandlord, Sublandlord shall, as soon thereafter as possible, but in any
event within one (1) business day, deliver such notice to Subtenant if
such notice is written or advise Subtenant thereof by telephone if such
notice is oral.
(c) Notices and demands required or permitted to be given by either
party to the other with respect hereto or to the Premises (including,
without limitation, any notice required by law to be given by Sublandlord
as a condition to the filing of an action alleging an unlawful detainer of
the Premises and any three day notice under Section 1161(2) or (3) of the
California Civil Code of Procedure) shall be in writing and shall not be
effective for any purpose unless the same shall be served either by
personal delivery with a receipt requested, by overnight air courier
service or by United States certified or registered mail, return receipt
requested, postage prepaid; provided, however, that all notices of default
shall be served either by personal delivery with a receipt requested or by
overnight air courier service, addressed after the Rent Commencement Date
to Subtenant at the Premises and otherwise as follows:
15
if to Sublandlord: GATEWAY, INC.
Real Estate Administration
610 Gateway Drive Y91
North Sioux City, South Dakota 97049
and
GATEWAY, INC.
14303 Gateway Place
Poway, California 92064
Attn: General Counsel
if to Subtenant: CELGENE CORPORATION
5555 Oberlin Drive
San Diego, California 92121
Notices and demands shall be deemed to have been given two (2) days after
mailing, if mailed, or, if made by personal delivery or by overnight air
courier service, then upon such delivery. Either party may change its
address for receipt of notices by giving notice to the other party.
16. AUTHORITY. Subtenant represents and warrants to Sublandlord that this
Sublease has been duly authorized, executed and delivered by and on behalf of
Subtenant and constitutes the valid, enforceable and binding agreement of
Subtenant and of each party constituting Subtenant, each of whom shall be
jointly and severally liable hereunder in accordance with the terms hereof.
Sublandlord represents and warrants to Subtenant that the Sublease has been duly
authorized, executed and delivered by and on behalf of Sublandlord and
constitutes the valid, enforceable and binding agreement of Sublandlord.
17. LIMITATION ON LIABILITY. Intentionally Deleted.
18. CONSENTS, APPROVALS AND DEFINITIONS. In any instance when
Sublandlord's consent or approval is required under this Sublease, Sublandlord's
refusal to consent to or approve any matter or thing shall be deemed reasonable
if, among other matters, such consent or approval is required under the
provisions of the Prime Lease incorporated herein by reference but has not been
obtained from Landlord. Except as otherwise provided herein, Sublandlord shall
not unreasonably withhold or delay its consent to or approval of a matter if
such consent or approval is required under the provisions of the Prime Lease and
Landlord has consented to or approved of such matter.
19. CONSENT OF LANDLORD. The obligations of Sublandlord and Subtenant
under this Sublease are conditioned and contingent upon the Landlord consenting
hereto by executing and delivering a counterpart of the consent of Landlord
attached hereto as Exhibit "E" as (the "Consent
16
Agreement"). In the event Landlord's consent is not obtained within thirty (30)
days after the date hereof, as evidenced by its execution and delivery of this
Sublease and the Consent Agreement, this Sublease shall automatically terminate
and become null and void, and neither Sublandlord nor Subtenant shall have any
further obligations or liability hereunder or to each other with respect to the
Premises. In connection with obtaining Landlord's consent, Sublandlord and
Subtenant acknowledge and agree that Landlord is requiring that all legal fees
and costs associated with obtaining its consent to this Sublease be reimbursed
to Landlord. Accordingly, Sublandlord and Subtenant acknowledge and agree that
Sublandlord shall be responsible to reimburse to Landlord not more than
$2,500.00 in connection with such reimbursement and that Subtenant shall be
responsible for any and all costs to reimbursed to Landlord in excess thereof.
If such amounts are billed through Sublandlord then Subtenant shall pay to
Sublandlord the costs of any and all such reimbursement which is in excess of
$2,500.00 within ten (10) days of Sublandlord's invoice; therefore, and any such
amounts due Sublandlord hereunder shall be deemed additional rent due under this
Sublease.
20. EXAMINATION. Submission of this instrument for examination or
signature by Subtenant does not constitute a reservation of or option for the
Premises or in any manner bind Sublandlord, and no lease, sublease or obligation
on Sublandlord shall arise until this instrument is signed and delivered by
Sublandlord and Subtenant and the consent of Landlord is obtained as described
in Section 19 above; provided, however, that the execution and delivery by
Subtenant of this Sublease to Sublandlord shall constitute an irrevocable offer
by Subtenant to sublease the Premises on the terms and conditions herein
contained, which offer may not be revoked for five (5) business days after such
delivery.
21. SECURITY DEPOSIT. Subtenant concurrently with the execution of this
Sublease, shall deposit with Sublandlord cash or a letter of credit (the "Letter
of Credit") equal to three (3) month's Minimum Rent. Such letter of credit shall
be in a form satisfactory to Sublandlord (in its sole and absolute discretion)
and issued upon a federally chartered bank with a minimum long term debt rating
of "A", with a branch in San Diego, California for purposes of Sublandlord's
ability to draw thereon and shall otherwise be satisfactory to Sublandlord (in
its sole and absolute discretion). Further, such letter of credit shall be
irrevocable, "evergreen", "clean" and in the full amount required naming
Sublandlord as beneficiary, and providing for partial and multiple draws and
shall otherwise be satisfactory to Sublandlord as set forth hereinabove. Such
letter of credit shall be held by Sublandlord as security for the faithful
performance by Subtenant of all terms, covenants and conditions of this
Sublease. Subtenant agrees that Sublandlord may apply (or draw upon, as the case
may be) the security deposit to remedy any failure by Subtenant to repair or
maintain the Premises or to perform any other terms, covenants and conditions
contained herein or make any payment owing hereunder, all following the
expiration of applicable notice and cure periods. The security deposit shall not
serve as an advance payment of rent or a measure of Sublandlord's damages for
any default. Subtenant waives the provisions of California Civil Code Section
1950.7, and all other provisions of law now in force or that become in force
after the date hereof, that provide that Sublandlord may claim from a security
deposit only those sums reasonably necessary to remedy any defaults in the
payment of rent, to repair any damage caused by Subtenant, or to clean the
Premises.
17
If Subtenant has kept and performed all terms, covenants and conditions of this
Sublease during the term, Sublandlord will, within thirty (30) days after the
expiration hereof, promptly return the security deposit to Subtenant or the last
permitted assignee of Subtenant's interest hereunder or assign the security
deposit to Landlord as provided in the Consent Agreement. Should Sublandlord use
(or draw upon, as the case may be) any portion of the security deposit to cure
any default by Subtenant hereunder, Subtenant shall forthwith replenish the
security deposit to the original amount. Sublandlord shall not be required to
keep the security deposit separate from its general funds, and Subtenant shall
not be entitled to interest on any such deposit. Subtenant hereby acknowledges
and agrees that Sublandlord may draw upon such letter of credit at such time as
Sublandlord is permitted to do so under this paragraph 21 or if Subtenant fails
to provide Sublandlord with a replacement letter of credit no later than thirty
(30) days prior to the expiration date of any then held letter of credit in
Sublandlord's possession. In the event Sublandlord draws down such letter of
credit, then Sublandlord shall hold such cash security deposit in accordance
with the terms and provisions of this paragraph 21.
22. FURNITURE AND FIXTURES. Subtenant hereby covenants and agrees that it
shall purchase all of the furniture and fixtures located in the Premises and
scheduled on the schedule attached to this Sublease as EXHIBIT "C" at a cost
equal to $409,375.00 (the "Furniture Cost"). Sublandlord and Subtenant
acknowledge and agree that the Furniture Cost is full and actual consideration
for the purchase of such furniture and fixtures from Sublandlord and not as rent
or additional consideration for occupancy of the Premises by Subtenant or
enhancement of the rent due under this Sublease. In connection therewith,
Subtenant shall pay the Furniture Cost to Sublandlord within fifteen (15) days
after the Commencement Date, failing which Subtenant shall be deemed in default
under this Sublease. Upon Sublandlord's receipt of the Furniture Cost,
Sublandlord shall provide to Subtenant a bill of sale to Subtenant conveying
Sublandlord's interests in such furniture and fixtures to Subtenant without
representation and warranty of any kind except to warrant that (i) Sublandlord
has merchantable title to such items, and (ii) that such items are conveyed free
and clear of any liens or security interests of Landlord or any other party.
Warranties expressly disclaimed include, without limitation, warranties of
merchantability, fitness for a particular purpose or any other thing or nature
whatsoever. The form of such bill of sale is attached to this Sublease as
EXHIBIT "D". Notwithstanding the foregoing, Sublandlord and Subtenant
acknowledge and agree that in no event shall the furniture and fixtures conveyed
to Subtenant pursuant to said bill of sale include the telecommunications system
(including, with limitation, all switching equipment) located within the
Premises, it being Sublandlord's intention to remove all such equipment from the
Premises prior to the Commencement Date. In addition, as to the Non-Included
Cafeteria Equipment (as defined in the Consent Agreement), Subtenant shall own
such items in their AS-IS condition and shall have the right to remove and
dispose of such items; provided if required by Landlord, Subtenant shall remove
such items at the expiration or sooner termination of the Sublease and repair
all damage caused by such removal.
23. PARKING. During the term of this Sublease, so long as Subtenant is not
in default under this Sublease, Subtenant and its employees shall be entitled to
use Subtenant's Percentage Share of the parking rights granted to Sublandlord as
Tenant, under the Prime Lease, including,
18
without limitation, the terms and provisions of Section 4.G. of the Prime Lease.
Subtenant acknowledges and agrees that its right to use such parking area shall
be upon the terms and conditions set forth in the Prime Lease, including,
without limitation, any and all rules and regulations promulgated by Landlord
with respect thereto.
24. ROOF RIGHTS. Sublandlord and Subtenant acknowledge and agree that
Subtenant desires to, at its sole cost and expense, install a satellite dish on
the roof of the Building. So long as Subtenant is not in default under this
Sublease, Sublandlord hereby consents to the installation of same upon the
following terms and conditions: (i) Subtenant shall obtain the approval of
Landlord and Sublandlord with respect to all aspects of the installation of such
satellite dish, including, without limitation, the plans and specifications
therefor, the manner of installation of same and the location of same; and (ii)
the right granted to Subtenant hereunder shall be subject to all of the terms
and conditions of the Prime Lease. In addition to such satellite dish,
Sublandlord acknowledges and agrees that Subtenant may desire to install a
central mechanical plant on the roof of the Premises and so long as the
Subtenant obtains the consent of Landlord and Sublandlord as required hereunder
and under the Prime Lease, Subtenant shall be permitted to utilize the roof of
the Premises to install such a central mechanical plant.
25. GENERATOR. Sublandlord and Subtenant acknowledge and agree that
adjacent to the Premises is an emergency diesel generator owned by Landlord
which services the Premises and that same shall remain in place and may be
utilized by Subtenant at no additional cost payable to Sublandlord for the use
of such generator throughout the term of this Sublease; provided, however,
Subtenant shall be solely responsible for any and all costs passed through under
the Prime Lease or otherwise related to such generator, including, without
limitation, those costs associated with the insuring, operation, maintenance
and/or repair of such generator throughout the term of this Sublease.
26. SIGNAGE. Sublandlord and Subtenant hereby acknowledge and agree that
so long as Subtenant is not in default under this Sublease, Subtenant shall be
granted the right provided to Sublandlord, as Tenant under the Prime Lease, to
install the Building Sign as set forth in Section 31 of the Prime Lease, subject
to the following terms and conditions:
(i) in no event shall Subtenant be permitted to install such
Building Sign unless and until Subtenant obtains any and
all necessary approvals in connection therewith,
including, without limitation, the approval of Landlord,
Sublandlord and any necessary governmental entity or
agency having jurisdiction over the Premises;
(ii) Subtenant shall comply with all of the terms and
provisions of the Prime Lease and this Sublease in
connection with the installation of same.
27. MEMORANDUM OF SUBLEASE. If required by Chicago Title Company to issue
a subleasehold policy of title insurance to Subtenant and so long as Subtenant
has obtained Landlord's
19
consent thereto, Sublandlord agrees to execute, acknowledge and deliver to
Subtenant for recordation purposes a memorandum of this Sublease, in form and
content reasonably satisfactory to Sublandlord; provided, however, the
obligation of Sublandlord to execute, acknowledge and deliver such a memorandum
shall be conditioned upon the delivery by Subtenant to Sublandlord
contemporaneously therewith a fully executed quitclaim deed or other instrument
sufficient to release such memorandum of this Sublease from the applicable
public records upon the expiration of the term of this Sublease or earlier
termination thereof. Sublandlord shall hold such instrument until the expiration
of the term of this Sublease or the earlier termination thereof.
28. COUNTERPART: EXECUTION. This Sublease may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which counterparts taken together shall constitute but
one and the same instrument. Signature pages may be detached from the
counterparts and attached to a single copy of this Sublease to physically form
one document. This Sublease may also be delivered by telefacsimile and any
signature of a party on a telefacsimile copy shall be binding. Any party
delivering an executed counterpart of this Sublease by telefacsimile shall also
deliver by overnight service to the other party or parties an original
counterpart of this Sublease, provided the failure to deliver an original
counterpart shall not affect the validity, enforceability and binding effect of
this Sublease.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, Sublandlord and Subtenant have executed this Sublease
as of the date aforesaid.
SUBLANDLORD:
GATEWAY, INC.
a Delaware corporation
ATTEST:
By: By: /s/ Stephen Smurthwaite
----------------------------- ----------------------------
Its: Its: Vice President
-------------------------- -------------------------
STATE OF CALIFORNIA )
) SS:
COUNTY OF SAN DIEGO )
On this 10th day of DECEMBER, 2001, before me, the undersigned Notary
Public in and for said County and State, personally appeared STEPHEN SMURTHWAITE
of GATEWAY, a VICE PRESIDENT who executed the foregoing instrument on behalf of
said corporation for the purposes therein expressed. He is personally known to
me and did not take an oath. In witness whereof, I have hereunto set my hand and
official seal the day and year last above written.
- -----------------------------------
M REBECCA L. MOOT M /s/ Rebecca L. Moot
G COMM. # 1244581 G -----------------------------------
C [SEAL] NOTARY PUBLIC-CALIFORNIA C Notary Public
1 SAN DIEGO COUNTY 1 Printed/Typed Name: Rebecca L. Moot
COMM. EXP. DEC. 4, 2003 ---------------
- ----------------------------------- Commission No.: 1244581
-------------------
My commission expires: 12-4-03
------------
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SUBTENANT:
CELGENE CORPORATION,
a Delaware corporation
ATTEST:
By: By: /s/ Robert J. Hugin
----------------------------- ----------------------------
Its: Its: SVP & CFO
-------------------------- -------------------------
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
================================================================================
State of California )
) ss.
County of San Diego )
On December 11, 2001, before me, Sholita Packer, Notary Public,
-----------------------------------------------
Name and Title of Officer
(e.g., "Jane Doe, Notary Public")
personally appeared Robert J. Hugin,
------------------------------------------------------------
Name(s) of Signer(s)
|_| personally known to me
|X| proved to me on the basis of
satisfactory evidence
to be the person whose name is
- -------------------------------------- subscribed to the within instrument
N SHOLITA PACKER N and acknowledged to me that he
N Commission # 1289382 N executed the same in his authorized
A [SEAL] Notary Public - California A capacity, and that by his signature
1 San Diego County 1 on the instrument the person, or the
My Comm. Expires Jan 5, 2005 entity upon behalf of which the person
- -------------------------------------- acted, executed the instrument.
WITNESS my hand and official seal.
/s/ Sholita Packer
--------------------------------------
Place Notary Seal Above Signature of Notary Public
- ----------------------------------- OPTIONAL -----------------------------------
Though the information below is not required by law, it may prove valuable to
persons relying on the document and could prevent fraudulent removal and
reattachment of this form to another document.
DESCRIPTION OF ATTACHED DOCUMENT
Title or Type of Document: Sublease
-----------------------------------------------------
Document Date: December 10, 2001 Number of Pages: 23
-------------------- --------------------------
Signer Other Than Named Above: N/A
-------------------------------------------------
CAPACITY CLAIMED BY SIGNER
Signer's Name: Robert J. Hugin
---------------------------------------------- -----------------
RIGHT THUMBPRINT
|_| Individual OF SIGNER
|X| Corporate Officer -- Title: SVP, Chief Financial Officer -----------------
|_| Partner -- |_| Limited |_| General Top of thumb here
|_| Attorney in Fact
|_| Trustee
|_| Guardian or Conservator
|_| Other: __________________________________________________ [THUMB PRINT]
Signer Is Representing: Self
------------------------------------- -----------------
================================================================================
(C) 1999 National Notary Association o 9350 De
Soto Ave., P.O. Box 2402 o Chatsworth, CA
91313-2402 o www.nationalnotary.org
Prod. No. 5907
Reorder: Call Toll-Free 1-800-876-6827
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