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EXHIBIT 10.112
FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE (this "Amendment") is entered into as of
December 1, 1998 (the "Effective Date"), by and between ARE-JOHN HOPKINS COURT,
LLC, a Delaware limited liability company ("Landlord"), and SEQUANA
THERAPEUTICS, INC., a California corporation doing business as Axys
Pharmaceuticals, Inc. ("Tenant"), in connection with the following:
A. Landlord and Tenant have previously entered into that certain Lease
dated January 7, 1998 (the "Lease"), pursuant to which Tenant leases
from Landlord certain portions of the property commonly known as 3550
John Hopkins Court, San Diego, California, and more particularly
described in the Lease. All capitalized terms used but not otherwise
defined herein shall have the meanings given such terms in the Lease.
B. Landlord and Tenant desire to amend the Lease on the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants set forth herein,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Landlord and Tenant agree as follows:
1. Amendments to Lease. Effective as of the Effective Date, the Lease is amended
as follows:
a. Section 2.1.4 is deleted in its entirety.
b. Section 2.1.5 is deleted in its entirety.
c. Section 2.1.7 is deleted in its entirety and replaced with the
following:
"2.1.7 (a) As used herein, "Term Commencement Date" shall mean
April 1, 1999.
(b) As used herein, "Term Expiration Date" shall mean
December 31, 1999."
d. Section 2.1.10(a) is deleted in its entirety and replaced with the
following:
"(a) Address for Rent Payment
ARE-John Hopkins Court, LLC
135 N. Los Robles Avenue, Suite 250
Pasadena, California 91101
Attention: Accounts Receivable"
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES AND EXCHANGE ACT OF 1934, AS
AMENDED.
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e. Section 2.1.10(b) is deleted in its entirety and replaced with the
following:
"(b) Address for Notices to Landlord
ARE-John Hopkins Court, LLC
135 N. Los Robles Avenue, Suite 250
Pasadena, California 91101
Attention: General Counsel"
f. Section 2.1.10(c) is deleted in its entirety and replaced with the
following:
"(c) Address for Notices to Tenant:
Axys Pharmaceuticals, Inc.
180 Kimball Way
South San Francisco, California 94080
Attention: Mr. Frederick J. Ruegsegger
With a copy to:
Axys Pharmaceuticals, Inc.
180 Kimball Way
South San Francisco, California 94080
Attention: William J. Newell, Esq."
g. Section 2.1.13 is deleted in its entirety and replaced with the following:
"2.1.13 As used herein, "Leasehold Improvement Allowance" shall mean
$0.00."
h. Section 2.1.14 is deleted in its entirety.
i. The following shall be added as a new Section 3.3 to the Lease:
"3.3 At any time during the Term, Landlord shall have the right to
terminate this Lease by delivering written notice of such termination
(the "Termination Notice") to Tenant not less than 7 business days
prior to the effective date of such termination (the "Termination
Date") as set forth in such Termination Notice. Upon the Termination
Date, any amounts of Rent due and owing from Tenant to Landlord,
including,without limitation, any then unpaid portion of Basic Annual
Rent (as hereinafter defined), shall be immediately due and payable."
j. Each of Sections 4.1, 4.2, 4.3 and 4.5 is hereby deleted in its entirety.
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[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES AND EXCHANGE ACT OF 1934, AS
AMENDED.
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k. So long as Tenant is not in default under the Lease (as amended by this
Amendment, including the provisions of paragraph 2, below) beyond any
applicable cure periods, Section 5.1 shall be deleted in its entirety and
replaced with the following:
"5.1 Tenant agrees to pay Landlord rent in the total amount of $[*]
("Basic Annual Rent") for the term of the Lease. Basic Annual Rent
shall be payable as follows:
(a) Concurrent with the execution and delivery of the First
Amendment to Lease by and between Landlord and Tenant ("First
Amendment"), Tenant shall pay to Landlord the amount of
[*] (First Installment of Basic Annual Rent").
(b) Commencing on April 1, 1999, and on the first day of each month
thereafter until the Term Expiration Date, Tenant shall pay to
Landlord the amount of [*] (each such payment, a "Monthly
Rental Installment of Basic Annual Rent").
(c) In the event this Lease is terminated by Landlord pursuant to
Section 3.3 of this Lease, any and all portions of Basic Annual
Rent not then paid to Landlord shall immediately become due and
payable. Tenant's obligation to pay Basic Annual Rent shall
survive the early termination of this Lease."
l. Section 6.1 is deleted in its entirety.
m. Section 7.2 is deleted in its entirety and replaced with the following:
"7.2 Tenant shall pay to Landlord on the first day of each month from the
Term Commencement Date through the earlier to occur of (i) the
Termination Date, or (ii) the Term Expiration Date, as Additional
Rent, [*] Any amount due under this Section 7.2 for any period which
is less than a full month shall be prorated (based on a 30 day month)
for such fractional month."
n. Section 7.3 is deleted in its entirety.
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[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES AND EXCHANGE ACT OF 1934, AS
AMENDED.
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o. Section 7.4 is deleted in its entirety and replaced with the
following:
"7.4 Tenant shall not be responsible for Operating Expenses
attributable to the time period prior to the Term Commencement
Date. The responsibility of Tenant for Operating Expenses
shall continue until the earlier to occur of (i) the
Termination Date, or (ii) the Term Expiration Date."
p. Section 10.4 is deleted in its entirety.
q. Section 14.1 is deleted in its entirety and replaced with the
following:
"14.1 Tenant acknowledges that neither Landlord nor any agent of
Landlord has made any representation or warranty with respect
to the condition of the Demised Premised, the Building or the
Project, or with respect to the suitability of any of the
foregoing for the conduct of Tenant's business."
r. Section 17.1 is deleted in its entirety and replaced with the
following:
"17.1 Tenant shall make no alterations, additions or improvements in
or to the Demised Premises."
s. Each of Sections 17.2, 17.3, 17.4, 17.5, 17.7, 17.10 and 17.11 is
deleted in its entirety.
t. Section 22.1 is deleted in its entirety and replaced with the
following:
"22.1 In the event of a partial or total destruction of the Building
by fire or other casualty, this Lease shall terminate as of
the date of such destruction and (i) any amounts of Rent due
and owing from Tenant to Landlord, including, without
limitation, any then unpaid portion of Basic Annual Rent shall
be immediately due and payable, and (ii) the responsibility of
Tenant for Operating Expenses shall terminate as of the date
of such destruction."
u. Each of Sections 22.2, 22.3, 22.4, 22.5, 22.6, and 22.7 is deleted
in its entirety.
v. Section 23.1 is deleted in its entirety and replaced with the
following:
"23.1 In the event of a whole or partial taking of the Building for
any public or quasi-public purpose by any lawful power or
authority by exercise of the right of appropriation,
condemnation or eminent domain, or a sale to prevent such
taking, this Lease shall terminate as of the date of such
taking or sale and (i) and amounts of Rent due and owing from
Tenant to Landlord, including, without limitation, any then
unpaid portion of Basic
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Annual Rent shall be immediately due and payable, and (ii) the
responsibility of Tenant for Operating Expenses shall terminate as of
the date of such taking or sale."
w. Section 23.2 is deleted in its entirety and replaced with the following:
"23.2 Any award for a whole or partial taking of the Building for any public
or quasi-public purpose by any lawful power or authority by exercise
of the right of appropriation, condemnation or eminent domain shall
belong to Landlord."
x. Each of Sections 23.3 and 23.4 is deleted in its entirety.
y. Section 24.4(a) is deleted in its entirety.
z. Section 24.4(b) is deleted in its entirety and replaced with the following:
"(b) The failure of Tenant to make any payment of Rent as and when due,
where such failure shall continue for a period of 5 days after
Tenant's actual receipt of written notice of delinquency from
Landlord."
aa. Section 25.1 is deleted in its entirety and replaced with the following:
"25.1 Tenant shall not, either voluntarily or by operation of law, directly
or indirectly, sell, hypothecate, assign, pledge, encumber or
otherwise transfer this Lease, or sublet the Demised Premises or any
part hereof, or permit or suffer the Demised Premises or any part
thereof to be used or occupied by anyone other than Tenant or Tenant's
employees."
bb. Each of Sections 25.4, 25.5, 25.6, 25.8 and 25.10 is deleted in its
entirety.
cc. Section 43.11 is deleted in its entirety and replaced with the following:
"43.11 Notices. Any notice, consent, demand, bill, statement or other
communication required or permitted to be given hereunder (each, a
"Notice") must be in writing and shall be given by reputable overnight
courier and shall be deemed received on the required delivery date set
forth on such courier's mailing label for such Notice. All Notices
shall be addressed to Tenant or Landlord, as applicable, at the
addresses set forth for each party in Section 2.1.10, above."
dd. Section 45.1 is deleted in its entirety.
ee. Each of Sections 46.1, 46.2, 46.3, 46.4 and 46.5 is deleted in its
entirety.
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2. Abatement of Lease Provisions. So long as Tenant is not then in default
under Sections 5, 7, 10, 13, 16, 17, 19, 24, 25, 29 or 41 of the Lease (as such
sections may be amended by this Amendment), Tenant shall have no obligations
under, and shall not be in default under the Lease for failure to perform
pursuant to the terms of, Sections 9, 18, 21.3, 21.4, 21.5, 21.6 and 21.8.
3. Forbearance by Landlord. So long as Tenant is not in default under the
Lease (as amended by this Amendment), Landlord shall not commence any legal
action against Tenant for any defaults under the Lease by Tenant occurring prior
to the Effective Date. Concurrent with the final payment of Basic Annual Rent
by Tenant, Landlord and Tenant shall execute the Agreement of Mutual General
Releases attached hereto as Exhibit A.
4. MISCELLANEOUS:
a. This Amendment shall not be effective unless and until Tenant shall
have delivered to Landlord the First Installment of Basic Annual Rent.
b. This Amendment shall be deemed to have been executed and delivered
within the State of California, and the rights and obligations of the
parties hereto shall be construed and enforced in accordance with,
and governed by, the laws of the State of California.
c. This Amendment is the entire agreement between the parties with
respect to the subject matter hereof and supersedes all prior and
contemporaneous oral and written agreements and discussions. This
Amendment may be amended only by an agreement in writing, signed by
the parties hereto.
d. This Amendment is binding upon and shall inure to the benefit of the
parties hereto, their respective agents, employees, representatives,
officers, directors, divisions, subsidiaries, affiliates, assigns,
heirs, successors in interest and shareholders.
e. Each party has cooperated in the drafting and preparation of this
Amendment. Hence, in any construction to be made of this Amendment,
the same shall not be construed against any party.
f. Each term of this Amendment is contractual and not merely a recital.
g. This Amendment may be executed in counterparts, and when each party
has signed and delivered at least one such counterpart, each
counterpart shall be deemed an original, and, when taken together
with other signed counterparts, shall constitute one Amendment, which
shall be binding upon and effective as to all parties.
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h. The unenforceability of a portion of this Amendment shall not affect the
enforceability of the remainder of this Amendment.
i. The parties will execute all such further and additional documents as
shall be reasonable, convenient, necessary or desirable to carry out the
provisions of this Amendment.
i. Except as specifically amended or modified by this Amendment, the Lease
remains in full force and effect.
j. EACH PARTY ACKNOWLEDGES THAT IT HAS HAD ADEQUATE OPPORTUNITY TO CONSULT
WITH LEGAL COUNSEL OF ITS CHOOSING IN CONNECTION WITH THE EXECUTION
HEREOF AND HAS DONE SO, OR VOLUNTARILY ELECTED NOT TO DO SO.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first written above.
[STAMP]
APPROVED AS TO "Tenant"
LEGAL FORM
LEGAL AFFAIRS AXYS PHARMACEUTICALS, INC., a California
[Illegible corporation
Initials]
By: /s/ Frederick J. Ruegsegger
------------------------------------
Its: Sr. VP & CFO
------------------------------------
"Landlord"
ARE - JOHN HOPKINS COURT, a Delaware limited
liability company
BY: ARE-QRS CORP., a Maryland corporation,
managing member
By: /s/ Lynn Anne Shapiro
------------------------------------
Its: General Counsel
------------------------------------
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Schedule 1
Estimated Operating Expense Budget
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SCHEDULE 1
3550 JOHNS HOPKINS COURT, SAN DIEGO, CA
ESTIMATED BUDGET OF OPERATING EXPENSES
AXYS PHARMACEUTICALS, INC.
[*]
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES AND EXCHANGE ACT OF 1934, AS
AMENDED.
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Exhibit A
Agreement of Mutual General Releases
(Attached).
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AGREEMENT OF MUTUAL GENERAL RELEASES
THIS AGREEMENT OF MUTUAL GENERAL RELEASES (this "Agreement") is made
as of __________________________, ____, by and between ARE - JOHN HOPKINS COURT,
LLC, a Delaware limited liability company ("ARE"), and SEQUANA THERAPEUTICS,
INC., a California corporation doing business as Axys Pharmaceuticals, Inc.
("Sequana") with respect to the following facts:
A. ARE and Sequana previously entered into that certain Lease dated
January 7, 1998, as amended by that certain First Amendment to Lease dated
December 1, 1998 (as amended, the "Lease"), pursuant to which Sequana leased
from ARE certain portions of the property commonly known as 3550 John Hopkins
Court, San Diego, California, and more particularly described in the Lease. All
capitalized terms used but not otherwise defined herein shall have the meanings
given such terms in the Lease.
B. Certain disputes arose between ARE and Sequana in connection with
Sequana' performance of its obligations under the Lease (the "Lease Disputes").
C. Pursuant to the terms of the First Amendment to Lease, (i) ARE
agreed to release Sequana from any liability or claim in connection with the
Lease Dispute so long as Sequana fully performed under the terms of the First
Amendment to Lease, and (ii) Sequana agreed to release ARE from any liability or
claim in connection with the Lease Dispute so long as ARE executed a release in
favor of Sequana.
D. Concurrent with the execution of this Agreement, Sequana shall
deliver to ARE any and all amounts of Rent due and owning to ARE, including,
without limitation, all unpaid amounts of Basic Annual Rent, and the Lease
shall terminate.
NOW THEREFORE, for good and valuable consideration, the adequacy of
which is acknowledged, ARE and Sequana agree as follows:
1. Except as to the representations, warranties and obligations set
forth in and arising from this Agreement, ARE, on behalf of itself and each of
its predecessors, successors, licensees, transferees, legal representatives,
trustees, beneficiaries, assigns, employees, servants, affiliates, and alter
egos, hereby fully and forever releases and discharges Sequana, and each of its
predecessors, successors, licensees, transferees, legal representatives,
trustees, beneficiaries, assigns, shareholders, directors, officers, partners,
employees, servants, subsidiaries, divisions, administrators, affiliates, alter
egos and parent corporations, from any and all, known or unknown, anticipated or
unanticipated, suspected or unsuspected, or fixed, conditional or contingent
actions or causes of action at law or in equity, suits, debts, demands, claims,
contracts, covenants, liens, liabilities, losses, costs, expenses (including,
without limitation, attorneys' fees) or damages of every kind, nature and
description, arising out of or relating to the Lease and the Lease Disputes.
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2. Except as to the representations, warranties and obligations set
forth in and arising from this Agreement, Sequana, on behalf of itself and each
of its predecessors, successors, licensees, transferees, legal representatives,
trustees, beneficiaries, assigns, employees, servants, affiliates, and alter
egos, hereby fully and forever releases and discharges ARE, and each of its
predecessors, successors, licensees, transferees, legal representatives,
trustees, beneficiaries, assigns, shareholders, directors, officers, partners,
employees, servants, subsidiaries, division, administrators, affiliates, alter
egos and parent corporations, from any and all, known or unknown, anticipated or
unanticipated, suspected or unsuspected, or fixed, conditional or contingent
actions or causes of action at law or in equity, suits, debts, demands, claims,
contracts, covenants, liens, liabilities, losses, costs, expenses (including,
without imitation, attorney's fees) or damages of every kind, nature and
description, arising out of or relating to the Lease and Lease Disputes.
3. With respect to the covenants contained in Paragraphs 1 and 2 of
this Agreement, each of the parties hereto expressly understands and agrees
that this Agreement fully and finally releases and forever resolves the matters
released and discharged in Paragraphs 1 and 2, including those which may be
unknown, unanticipated and/or unsuspected. Each of the parties hereto
acknowledges that it is aware that it or its agents or employees may hereafter
discover facts in addition to or different from those which it now knows or
believes to exist with respect to the subject matter of this Agreement, but that
it is its intention hereby fully, finally and forever to settle and release all
of the claims, disputes and differences known or unknown, suspected or
unsuspected, which now exist, may exist or heretofore have existed between or
among the parties, except as otherwise expressly provided herein. Upon the
advice of legal counsel, each of the parties hereto hereby expressly waives all
benefits under Section 1542 of the California Civil Code, as well as under any
other statues or common law principles of similar effect of this or any other
jurisdiction, to the extent that such benefits may contravene the provisions of
Paragraphs 1 and 2 of this Agreement. Each of the parties hereto acknowledges
that it has read and understands Section 1542 of the California Civil Code,
which provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES
NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE
RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR.
EACH OF THE PARTIES HERETO, BEING AWARE OF SUCH CODE SECTION, HEREBY
EXPRESSLY WAIVES ANY RIGHTS IT MAY HAVE THEREUNDER AS WELL AS UNDER ANY
OTHER STATUTES OR COMMON LAW PRINCIPALS OF SIMILAR EFFECT.
INITIALED BY ARE: INITIALED BY SEQUANA:
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4. Each of the parties hereto represents and warrants that it has not
assigned or otherwise transferred (voluntarily, involuntarily or by operation
of law) any right, title or interest in any claim which it has, may have or may
have had and which is the subject of this Agreement. Each of the parties hereto
agrees to indemnify, save and hold forever harmless the entities and persons
released by such party under this Agreement from any claims, liabilities,
demand, damages, costs and expenses, including attorneys' fees, incurred as a
result of any person or entity asserting any such claim pursuant to any such
assignment or transfer. It is the intention of the parties hereto that this
indemnity does not require payment as a condition precedent to recovery.
5. Each of the parties hereto warrants, represents and agrees that in
executing this Agreement:
a. It has received independent legal advice from its attorneys with
respect to each aspect of this Agreement;
b. It is not relying upon any representation or statement made by or
on behalf of any of the entities and persons released by such
party with respect to any aspect of this Agreement;
c. It assumes the risk of any mistake of fact with regard to any
aspect of this Agreement; and
d. It carefully has read and considered this Agreement in it
entirety and fully understands its contents and the significance
of each of its aspects.
6. No promise or inducement of any nature has been made other than those
set forth in this Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof. This Agreement
may not be amended or modified except by a written instrument executed by all
of the parties hereto.
7. This Agreement shall be binding upon and shall inure to the benefit
of the assignees, licensees, successors and transferees of the entities and
persons releases hereunder, whether by license, sale, merger, reverse merger,
sale of stock, insolvency, sale of assets, operation of law, or, without
limitation, otherwise.
8. If any action at law or in equity is brought to enforce or interpret
the provisions of this Agreement, the prevailing party shall be entitled to
reasonable attorneys' fees in addition to any other relief to which that party
may be entitled.
9. If any provision of this Agreement is found, determined, and/or
adjudicated to be illegal, invalid or unenforceable, such finding shall in no
way affect the legality, validity or enforceability of the remaining provisions
of this Agreement, which shall be interpreted as if the illegal, invalid or
unenforceable provision had been omitted.
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10. This Agreement may be executed in counterparts and each signed
counterpart shall constitute a duplicate original.
11. This Agreement shall be governed and constructed in accordance with
the applicable laws of the State of California.
Executed as of the date first written above.
"Sequana"
SEQUANA THERAPEUTICS, INC., a California
corporation doing business as
Axys Pharmaceuticals, Inc.
By: _________________________________
Its:_________________________________
"ARE"
ARE-JOHN HOPKINS COURT, a Delaware
limited liability company
BY: ARE-QRS CORP., a Maryland
Corporation, managing member
By: __________________________
Its:__________________________