EXHIBIT 10.33
COMMERCIAL SUBLEASE
This Sublease is made as of the _22__ day of June 2001 between SWMF Holdings
Corporation, hereinafter called "Landlord", and Esperion Therapeutics, Inc.,
hereinafter called "Tenant".
It is agreed as follows:
1. ORIGINAL LANDLORD: Landlord, as the tenant, has entered into a
lease with Western Michigan University (WMU), as the original
landlord, for the property commonly described as McCracken Hall
Rooms numbered 5111, 5110, 5090, 5040, 5041, 5042, 5010, 5280,
5030, and 5070. That Lease Agreement will be referenced in this
sublease as the "Original Lease".
2. SUBLEASED PREMISES: Landlord now subleases to Tenant two or
more of the following rooms numbered 5111, 5110, 5090, 5040, 5041,
5042, 5010, 5280, 5030 and 5070 (those which are subleased
becoming the "Subleased Premises") Tenant will be allowed to
inspect the Subleased Premises at least forty-five (45) days prior
to occupying the Subleased Premises. On or before October 15,
2001, Tenant shall advise Landlord in writing as to which of these
rooms it desires to lease. The parties shall complete Exhibit A at
that time. Until January 1, 2002, Tenant has the exclusive option
to rent more of these rooms by providing written notice of same to
Landlord. If that occurs, the parties shall execute a revised
Exhibit A. If Tenant does not lease all of the rooms specified
above by January 1, 2002, then Landlord may offer those unleased
rooms ("Unleased Rooms") to other prospective tenants, so long as
Tenant is given a right of first refusal in the manner described
below.
As to the Unleased Rooms, if after January 1, 2002, and during the
term of this Sublease, Landlord should receive a bona fide offer
to lease one of the Unleased Rooms that is acceptable to it,
Landlord shall deliver to Tenant a written notice that such an
offer has been received. The notice shall include a copy of the
offer.
Tenant shall have the right and option for a period of ten (10)
business days after receipt of such notice to elect to rent those
Unleased Rooms upon the same terms and conditions as stated in the
bona fide offer which was attached to the notice. Exercise of this
option shall be by written notice from Tenant to Landlord.
If Tenant does not elect to exercise this option, then Landlord
may proceed to rent those Unleased Rooms in accordance with the
provisions of the bona fide offer and this first right of refusal
shall terminate as to those Unleased Rooms. However, if Landlord
does not proceed to rent those Unleased Rooms under such bona fide
offer, then this first right of refusal will continue as to any
subsequent bona fide offers.
3. TERM: The term of this Sublease is one (1) year, commencing on
the earlier of the date that Tenant takes occupancy of the
Subleased Premises or October 15, 2001. If Tenant's new space at
the Business Technology & Research Park (the "New Space") is
available for occupancy prior to the end of the term of this
Sublease, then Tenant may terminate this Sublease early, by
submitting a written notice of its intent to do so to Landlord,
not less than thirty (30) days prior to its anticipated
termination date. In addition, Tenant has the option to renew this
Sublease for four (4) additional six (6) month terms, the first of
which shall commence immediately after the end of the original
term of this Sublease, (the "Additional Terms"). Tenant will be
granted extra Additional Terms if the New Space is not available
sixty (60) days prior to the end of the fourth Additional Term.
Notice of intent to exercise the option to renew shall be given by
Tenant to Landlord at least sixty (60) days prior to the end
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of the original term, as to the first renewal option and at least
thirty (30) days prior to the end of the first renewal term as to
the second renewal option. The rent during the Additional Terms
will be the same as the rent specified in Section 4 of this
Sublease.
4. RENT: Tenant shall pay to Landlord monthly rent of Twelve and
50/100 Dollars ($12.50) per square foot, which is broken down into
base rent of Ten and 00/100 Dollars ($10.00) per square ft. of
subleased space, and Two and 50/100 Dollars ($2.50) per square ft.
of subleased space for services including, but not limited to,
Tenant's portion of operating and maintenance expenses. The total
rent will be calculated with respect to the Subleased Premises'
floor space on Exhibit A, attached to this Sublease. The first
installment of rent shall be due the earlier of thirty (30) days
from the date that the Tenant took occupancy of the Subleased
Premises or October 15, 2001, and shall continue on the same day
of each month thereafter throughout the original lease term and
any Additional Terms.
5. COMPANY EMPLOYEE LEVEL: Tenant has agreed to make a good-faith
effort to hire at least five research/research management and
maintenance employees by January 1, 2002.
6. FURNISHINGS AND SUPPLIES: Tenant agrees to provide its own
furniture, supplies, and equipment for its offices and labs.
7. INTERNSHIPS AND RESEARCH OPPORTUNITIES: Tenant will make a good
faith effort to, make internship and research opportunities
available to WMU faculty, staff, and students.
8. WMU PRIVILEGES: Tenant's employees will have regular WMU
staff/faculty privileges, including, but not limited to, WMU
computer database access, library access, phone service, keys to
McCracken Hall and to Subleased Premises, parking, and health
center access.
9. SIGNAGE: WMU has allowed outside signs, in accordance with
paragraph 12 of the original lease agreement, at the cost of the
Tenant, subject to WMU and Landlord approval.
10. EMPLOYEE PARKING: In accordance with Paragraph 3 of the
Original Lease Agreement, WMU shall make available for purchase by
Landlord, at the same cost that applies to Faculty/Staff employees
of WMU, three (3) parking spaces for Landlord non-student
employees, guest, and invitees in Parking Lot Number 28, located
adjacent to McCracken Hall and Waldo Library. Landlord shall make
available 15 (fifteen) additional Faculty/Staff permits for use by
Tenant for use in accordance with WMU's regular parking rules and
regulations. The 15 additional spaces shall not be for any
dedicated lot or spaces. Landlord hereby grants to Tenant, its
employees, agents, contractors, and invitees, the right of
vehicular ingress and egress on the campus of WMU subject to all
rules and regulations established by WMU for parking and traffic
control; application of such rules and regulations shall be
non-discriminatory. WMU student employees will be required to
purchase a student parking sticker like all other on-campus
student employees.
11. RESTRICTION ON USE: The Subleased Premises shall be used
solely for the purpose of scientific research and other related
activities. The Subleased Premises shall not be used for any other
purpose without the prior written consent of Landlord. Tenant
shall not use the Subleased Premises in any manner that is in
violation of any federal, state, or local law, ordinance or
regulation.
12. PHONE AND MAIL SERVICE: Tenant shall pay for all costs of long
distance telephone, which shall be itemized and presented to
Tenant on a regular basis. Tenant shall pay for cost of
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any independent data lines installed. WMU shall provide mail
delivery service to Tenant in accordance with its standard
practice.
13. BIOHAZARD MATERIALS DISPOSAL POLICY: Tenant shall consult with
WMU's Manager of Environmental Health and Safety with regard to
the proper disposal of all biohazardous, toxic, radioactive or
other material not of a common nature. Tenant further agrees that
it will comply with all of WMU's policies, rules and procedures,
including, but not limited to, policies relating to the storage,
use and handling of hazardous materials, including but not limited
to radioactive materials, pathogens, toxins, recombinant DNA, or
blood borne pathogens.
Tenant agrees to conduct its operations in compliance with all
federal and state regulations relating to the use of such
materials, including but not limited to those rules, regulations
and procedures promulgated by the Occupational Safety and Health
Administration, the Michigan Occupational Safety and Health
Administration, Michigan Department of Environmental Quality, the
Nuclear Regulatory Commission, the Environmental Protection Agency
the Center for Disease Control, Drug Enforcement Agency and the
National Institutes of Health and the National Science Foundation.
Tenant further agrees that any person, firm or entity to which
Tenant subleases any of the Subleased Premises shall execute an
agreement in substantial compliance with this paragraph.
Before any biohazardous, radioactive, recombinant DNA, toxic,
blood borne pathogen, infectious, or other non-common material is
brought onto the Subleased Premises, Tenant, and any entity
occupying the Subleased Premises pursuant to a sublease, shall
notify the Manager of Environmental Health and Safety for WMU
(said office being currently occupied by Dr. Pat Holton) regarding
the quantity, nature, and use of the material and complete the WMU
form and said use of the material on the Subleased Premises shall
be subject to the approval of the Manager of Environment Health
and Safety for WMU, which approval shall not be unreasonably
withheld.
In addition, with regard to any radioactive material, Tenant, and
any entity occupying the Subleased Premises pursuant to a
sublease, shall notify and consult with WMU's Radiation Safety
Officer (said office being currently occupied by James F. Center)
regarding the use, handling and disposal of all such waste and the
use of such material shall be subject to the approval of both the
Manager of Environment Health and Safety for WMU and the Radiation
Safety Office, said approval shall not be unreasonably withheld.
14. COMMON AREAS: Tenant shall be entitled to use, in common with
others, the common areas associated with the Subleased Premises,
including sidewalks, entryways, elevators, parking areas and
restrooms. The use of such common areas shall be subject to the
exclusive control and management of WMU and to such rules and such
regulations as WMU may, from time to time, issue.
15. MAINTENANCE AND REPAIR: WMU shall keep the foundation, outer
walls, windows, roof and structural components of the building of
which the Subleased Premises are a part in good repair. WMU shall
also be responsible for all necessary maintenance and repair to
the mechanical systems of the building, including heating and air
conditioning equipment.
Both parties to this Sublease understand that McCracken is an
older facility. Therefore, Landlord makes no warranties regarding
the structural or mechanical systems of the Subleased Premises,
and the two parties agree to use good faith in allocating
financial responsibilities in the event that the structural or
mechanical systems require replacement or break-down completely.
WMU has put Landlord on notice that, in particular, the air
conditioning compressor may fail. Landlord agrees that if they
fail, Landlord will be
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responsible for the purchase and installation of window air
conditioners in the Subleased Premises, at its expense, subject to
WMU's Director or Physical Plants approval.
Tenant is responsible for the day-to-day maintenance of the fume
hoods and cold rooms. If Tenant believes that any fume hoods or
cold rooms require major repair or replacement, it shall provide
Landlord with written notice of same, which notice shall include a
copy of a repair or replacement quote. Landlord shall have three
(3) days to object to the repair or replacement. If Landlord fails
to deliver a written objection to Tenant within these three (3)
days, then Tenant may accomplish the repair or replacement in
accordance with the quote, at its own expense. If Tenant so
repairs or replaces any fume hoods or cold rooms at its own
expense, then Tenant shall be entitled to deduct the cost of same
(but not more than the amount set forth in said quote) from the
next rent installment(s). Tenant shall regularly inspect the fume
hoods, cold rooms and other features, including but not limited to
other safety features of the Subleased Premises, and notify either
Landlord or WMU of any repairs which are the responsibility of
Landlord or WMU; provided, Landlord shall not be called upon to
make any repairs of any kind upon the Subleased Premises except as
required under the terms of the Original Lease agreement
Notwithstanding the foregoing, Tenant shall be responsible for any
such repairs caused by the acts or negligence of Tenant, its
agents, employees, invitees, guests or licensees, and in this
instance shall not receive a rent credit. Tenant shall be
responsible for maintenance, repair and replacement of all
interior walls, doors, glass, carpet and flooring, and window
treatments. Except for the obligations of Landlord set forth
herein, Tenant shall keep and maintain (including all necessary
repairs and replacements) the Subleased Premises and every part
thereof and any alterations and additions to the Subleased
Premises in good order, condition and repair, and clean and free
from trash, rubbish and noxious odors. If Landlord reasonably
determines any unperformed cleaning, maintenance, repairs or
replacements of Tenant necessary, it may demand that Tenant make
the same. If Tenant refuses or neglects to do so with reasonable
dispatch, Landlord may, at Tenant's expense, make or cause such
reasonable cleaning, maintenance, repairs or replacements to be
made and shall not be responsible to Tenant for any loss or damage
that may accrue to Tenant's property or business by reason
thereof. At the expiration of the term of this Sublease, and any
extensions, Tenant shall return the Subleased Premises to Landlord
in as clean and good condition as when taken by Tenant, subject to
reasonable wear and tear.
16. IMPROVEMENTS, ADDITIONS AND ALTERATIONS: Tenant shall not make
any additions, improvements and alterations to the Subleased
Premises without the prior written consent of Landlord, which may
not be unreasonably withheld. All alterations, additions,
improvements and fixtures which may be made or installed by Tenant
upon the Subleased Premises shall be removed by Tenant at the
termination of this Sublease and Tenant shall repair any damage to
the Subleased Premises caused by such removal at Tenant's expense.
Costs incurred for future improvements of Subleased Premises will
be the responsibility of Tenant.
17. TAXES: WMU shall be responsible for payment of the real estate
taxes on the Subleased Premises. WMU shall also pay any
installments or special assessments levied against the Subleased
Premises and coming due during the term of this Sublease, or any
extensions. Tenant shall pay all personal property taxes levied
against any equipment or personal property in the possession of
Tenant and contained in or on the Subleased Premises.
18. INSURANCE AND INDEMNITY:
A. COVENANT TO HOLD HARMLESS: Landlord shall be defended and held
harmless by Tenant from any liability for damages or injury to the
Subleased Premises and to any person or any
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property in or upon the Subleased Premises or the common areas,
including the person and property of Tenant, and its employees and
all persons in the building at its or their invitation, including
anyone holding as a Tenant or sublessee of Tenant or with their
consent except damages or injury caused by the gross negligence or
willful misconduct of Landlord. Tenant specifically agrees to hold
harmless the Landlord from any and all claims, causes of actions
and demands whether in law or in equity which arise in any fashion
whatsoever from Tenant's (or any person or entity holding as a
sublessee or by agreement with Tenant) use, storage, possession or
control of any hazardous non-common material such as but not
limited to radioactive or bio-hazardous materials. All property
kept, stored or maintained in the Subleased Premises shall be so
kept, stored or maintained at the risk of Tenant only. Tenant
shall not suffer or give cause for the filing of any lien against
the Subleased Premises. Landlord and Tenant shall hold each other
harmless from any liability or damages to any person or property
in any common areas of the Subleased Premises on account of the
gross negligence or willful misconduct of the other party or its
employees, agents or invitees.
B. FIRE AND CASUALTY: WMU shall be responsible for obtaining and
maintaining a policy of fire and casualty insurance with extended
coverage provisions applicable to the Subleased Premises in the
amount reasonably determined by Landlord. Tenant shall be
responsible for obtaining a policy of fire and casualty insurance
protecting Tenant against loss or damage to Tenant's furnishings,
fixtures, equipment and personal property in or on the Subleased
Premises. Upon request, Landlord shall provide evidence of its
insurance coverage to Tenant.
C. TENANT'S OBLIGATION TO CARRY PUBLIC LIABILITY INSURANCE: Tenant
shall keep, during the entire term hereof, in full force and
effect a policy of public liability insurance with respect to the
Subleased Premises and the business operated by Tenant in the
Subleased Premises, and in which the limits of liability shall not
be less than $1,000,000 single limit coverage, or such greater
amount as reasonably determined by Landlord from time to time,
naming Landlord and WMU as additional insureds. Tenant may obtain
such insurance coverage under any blanket or umbrella policy
secured by Tenant or under a separate policy therefore. Tenant
shall furnish Landlord with a certificate or certificates of
insurance or other acceptable evidence that such insurance is in
force at all times during the tenancy of this Sublease. All
policies relating to the Subleased Premises shall contain a
provision that the policy shall not be modified or canceled unless
the insurer first gives Landlord at least thirty (30) days prior
written notice.
D. WAIVER OF SUBROGATION RIGHTS UNDER INSURANCE POLICIES: Landlord
and Tenant hereby waive all rights of recovery which either might
otherwise have against the other, and its officers, partners,
agents, employees, invitees, guests, or licensees, for any damage
to their property which is covered by a policy of insurance,
notwithstanding that such damage may result from the negligence or
fault of one of them, or its officers, partners, agents,
employees, invitees, guests, or licensees; provided, however, that
this waiver shall be effective only with respect to losses or
damages occurring where this waiver will not affect the right of
the insured to recover under the applicable policy of insurance.
The parties agree to acquire policies of insurance containing
standard waiver of subrogation clauses or endorsements so long as
such clauses or endorsements are generally available in the
insurance industry.
19. CONDUCT: Tenant shall not cause or permit any unreasonable
conduct to take place within the Subleased Premises which in any
way may disturb or annoy other occupants of the building in which
the Subleased Premises are located, or adjacent buildings.
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20. ACCESS TO SUBLEASED PREMISES: Landlord and WMU shall have the
right to enter upon the Subleased Premises at all reasonable hours
and upon reasonable notice for the purpose of inspecting the
Subleased Premises.
21. CONDEMNATION: In the event a part of the Subleased Premises
shall be taken under the power of eminent domain by any legally
constituted authority, and there remains a sufficient amount of
space to permit Tenant to carry on its business in a manner
comparable to that which it has become accustomed, then this
Sublease shall continue, but the obligation to pay rent on the
part of Tenant shall be reduced in an amount proportionate to the
square footage of the entire Subleased Premises relative to the
square footage taken by such condemnation. In the event all of the
Subleased Premises shall be taken, or so much of the Subleased
Premises taken that it is not feasible to continue a reasonably
satisfactory operation of the business of Tenant, then Tenant
shall have the option of terminating this Sublease. Such
termination shall be without prejudice to the rights of either
Landlord or Tenant to recover compensation from the condemning
authority for any loss or damage caused by such condemnation.
Neither Landlord nor Tenant shall have any right in or to any
award made to the other by the condemning authority.
22. DESTRUCTION: In the event the Subleased Premises are damaged
by fire or other casualty (i) WMU may elect to make repairs or
rebuild in its sole discretion and this Sublease shall continue in
full force and effect, or (ii) WMU may, in its sole discretion,
elect to terminate the original lease, and thus this Sublease, and
give written notice thereof to Tenant. Until such repairs are
completed, the rent and other amounts payable hereunder shall be
abated in proportion to the area of the Subleased Premises that is
rendered unusable by Tenant in the conduct of its business. In the
event the repair of the facility shall take longer than 20
calendar days, Tenant shall have the right to terminate this
Sublease.
23. BANKRUPTCY OR INSOLVENCY: Neither this Sublease nor any
interest therein, nor any estate thereby created, shall pass to
any trustee or receiver or assignee for the benefit of creditors
or otherwise by operation of law. In the event the estate created
hereby shall be taken in execution or by other process of law, or
if Tenant shall be adjudicated insolvent or bankrupt pursuant to
the provisions of any state or federal insolvency or bankruptcy
act, or if a receiver or trustee of the property of Tenant shall
be appointed by reason of Tenant's insolvency or inability to pay
its debts, or if any assignment shall be made of Tenant's property
for the benefit of creditors, then and in any such event, Landlord
may terminate, at its option, this Sublease and all rights of
Tenant hereunder, by giving to Tenant notice in writing of the
election of Landlord to so terminate.
24. ASSIGNMENT AND SUBLETTING: Tenant may not assign this Sublease
without Landlord's prior written consent, except to a successor to
its business or substantially all of its assets. In that event,
Landlord must first review and approve the potential successor's
financial standing. The Landlord's consent or approval shall not
be unreasonably withheld.
25. DEFAULT OF TENANT: Tenant shall be deemed to be in default
under this Sublease upon occurrence of any of the following
events: (a) any failure of Tenant to pay any rental installment
due hereunder within thirty (30) days after the same shall be due,
or (b) any failure of Tenant to perform any other of the terms,
conditions or covenants of this Sublease for more than thirty (30)
days after written notice of such default shall have been received
by Tenant (unless such default requires work to be performed, acts
to be done or conditions to be remedied which by their nature
cannot be performed, done or remedied, as the case may be, within
such thirty (30) day period and Tenant shall commence the same
within such thirty
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(30) day period and thereafter shall continuously process the same
to completion, in good faith), or (c) if Tenant shall abandon the
Subleased Premises, or suffer this Sublease to be taken under any
writ of execution.
26. REMEDIES UPON DEFAULT: Upon the occurrence of any of the
events of default described in Paragraph 25 of this sublease,
Tenant shall be deemed to be in default of this Sublease and
Landlord may, at its option, without notice or demand of any kind
to Tenant or any other person, have any one or more of the
following described remedies in addition to all other rights and
remedies provided at law or in equity:
(a) Terminate this Sublease, repossess the Subleased
Premises and be entitled to recover immediately, as
liquidated agreed final damages, in lieu of any further
deficiencies, the total Rent to be paid by Tenant during
the balance of the Term of this Sublease, less the fair
rental value of the Subleased Premises for said period,
together with any other sum of money owed by Tenant to
Landlord.
(b) Terminate Tenant's right of possession and
repossess the Subleased Premises without demand or notice
of any kind to Tenant and without terminating this
Sublease, in which case Landlord shall attempt to relet
the Subleased Premises for such rent and upon such terms
as shall be satisfactory to Landlord. For the purposes of
such reletting, Landlord may make such repairs,
alterations, additions, or physical changes in or to the
Subleased Premises as may be necessary or convenient. If
Landlord shall be unable to relet the Subleased Premises,
then Tenant shall pay to Landlord as damages the total
Rent to be paid by Tenant during the balance of the Term
of this Sublease that shall be immediately due and payable
from Tenant to Landlord upon demand. If the Subleased
Premises are relet and a sufficient sum shall not be
realized from the reletting, after payment of all costs
and expenses of such repairs, alterations, additions, or
physical changes and the expense of such reletting and the
collection of rent occurring therefrom, to satisfy the
Rent herein provided to be paid during the remainder of
the Term, Tenant shall satisfy and pay any such deficiency
upon demand. Tenant agrees that Landlord may file suit to
recover any sums falling due under the terms of this
paragraph from time to time and that any suit or recovery
of any portion due Landlord hereunder shall be no defense
to any subsequent action brought for any amount not
theretofore reduced to judgment in favor of Landlord.
(c) Landlord's rights, remedies and benefits provided
by this Sublease shall be cumulative and shall not be
exclusive of any other rights, remedies and benefits
allowed by law.
Upon reentry, Landlord may remove all persons and property from
the Subleased Premises and such property may be removed and stored
in a public warehouse or elsewhere at the cost of, and for the
account of Tenant.
27. QUIET ENJOYMENT: Upon payment by Tenant of the rents herein
provided, and upon the observance and performance of all the
covenants, terms and conditions on Tenant's part to be observed
and performed, Tenant shall peaceably and quietly hold and enjoy
the Subleased Premises for the term hereof without hindrance or
interruption by Landlord or any other person or persons lawfully
or equitably claiming by, through or under Landlord, subject,
nevertheless, to the terms and conditions of this Sublease.
28. WAIVER: One or more waivers of any covenant or condition by
Landlord shall not be construed as a waiver of a subsequent breach
of the same covenant or conditions, and the
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consent or approval by Landlord to or of any act of Tenant
requiring Landlord's consent or approval shall not be deemed to
waive or render unnecessary Landlord's consent or approval to or
of any subsequent similar act by Tenant.
29. NOTICES: All notices, demands and requests required or
permitted to be given under the provisions of this Agreement shall
be in writing and shall be deemed given: (a) when personally
delivered to the party to be given such notice or other
communication; (b) on the business day that such notice or other
communication is sent by facsimile or similar electronic device,
fully prepaid, which facsimile or similar electronic communication
shall promptly be confirmed by written notice; (c) on the third
business day following the date of deposit in the United States
mail if such notice or other communication is sent by certified or
registered mail with return receipt requested and postage thereon
fully prepaid; or (d) on the business day following the day such
notice or other communication is sent by reputable overnight
courier, to the address set forth below or to such other address
as the parties may designate in writing:
Landlord: Barry Broome, President & CEO
SOUTHWEST MICHIGAN INNOVATION CENTER
346 W. Michigan Ave.
Kalamazoo, MI 49007
Tenant: Roger Newton, President & CEO
ESPERION THERAPEUTICS
3621 S. State St.
695 KMS Place
Ann Arbor, MI 48108
With copy to General Counsel at fax 734-995-1691
30. CONSTRUCTION: Nothing contained herein shall be deemed or
construed by the parties hereto, nor by any third party, as
creating the relationship of principal and agent or partnership or
of joint venture between the parties hereto, it being understood
and agreed that neither the method of computation of rent, nor any
other provision contained herein, nor any acts of the parties
herein, shall be deemed to create any relationship other than
Landlord and Tenant. Whenever herein the singular number is used,
the same shall include the plural, and the masculine gender shall
include the feminine and neuter genders.
31. PARTIAL INVALIDITY: If any term, covenant or condition of this
Sublease or the application thereof to any person or circumstances
shall, to any extent, be invalid or unenforceable, the remainder
of this Sublease, or the application of such term, covenant or
condition to persons or circumstances other than those as to which
it is held invalid or unenforceable, shall not be affected
thereby.
32. HOLDING OVER: Any holding over after the expiration of the
term hereof, with or without the consent of Landlord, shall be
construed to be a tenancy for month-to-month at the rents herein
specified (prorated on a monthly basis) and shall otherwise be on
the terms and conditions herein specified so far as applicable.
33. SUCCESSORS: This Sublease shall be binding upon and inure to
the benefit of Landlord and Tenant and their respective
successors, assigns, guardians, heirs and legal representatives.
If there is more than one Tenant, they shall each be bound jointly
and severally by the terms, covenants and agreements herein.
34. ACCORD AND SATISFACTION: No payment by Tenant or receipt by
Landlord of a lesser amount than the monthly rent herein
stipulated shall be deemed to be other than on account
of the earliest stipulated rent, nor shall any endorsement or
statement on any check or any letter accompanying any check or
payment as rent be deemed an accord and satisfaction, and Landlord
shall accept such check or payment without prejudice to Landlord's
right to recover the balance of such rent or to pursue any other
remedy provided in this Sublease.
35. ENTIRE AGREEMENT AND AMENDMENT: This Sublease contains the
entire agreement with respect to the matters described herein and
is a complete and exclusive statement of the terms thereof and
supersedes all previous agreements with respect to such matters.
This Sublease may not be altered or modified except by a writing
signed by Landlord and Tenant.
IN WITNESS WHEREOF, the parties have executed this Agreement and caused it to be
effective as of the day and year first set forth above.
Signed on 7-13, 2001 Signed on June 22, 2001
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Tenant: ESPERION THERAPEUTICS, INC. Landlord: SWMF HOLDINGS CORPORATION
Name: /s/ Timothy M. Mayleben Name: /s/ Barry Broome
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Title: Vice President, Finance Title: CEO
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