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EXHIBIT 10.117
FIFTH AMENDMENT TO EXPANSION LEASE
THIS FIFTH AMENDMENT TO EXPANSION LEASE ("Amendment"), dated and
effective as of October ____, 1999 (the "Effective Date"), is entered into by
and between SEQUANA THERAPEUTICS, INC., a California corporation, doing business
as AXYS PHARMACEUTICALS, INC. ("Tenant"), and ARE - 11099 NORTH TORREY PINES,
LLC, a Delaware limited liability company, successor-in-interest to ALEXANDRIA
REAL ESTATE EQUITIES, INC., formerly HEALTH SCIENCE PROPERTIES, INC., a Maryland
corporation ("Landlord") in connection with the following:
A. Landlord and Tenant are parties to that certain Expansion Lease,
dated as of November 20, 1995, as amended by that certain First Amendment to
Expansion Lease dated as of October ___, 1996, by that certain Second Amendment
to Expansion Lease dated as of May 20, 1997, by that certain Third Amendment to
Expansion Lease dated as of August 24, 1998, and by that certain Fourth
Amendment to Expansion Lease dated as of March ___, 1999 (as amended, the
"Lease"), pursuant to which Tenant leases from Landlord certain premises (the
"Demised Premises") in a building located at 11099 North Torrey Pines Road, La
Jolla, California (the "Building"), and more particularly described in the
Lease. All capitalized terms used but not otherwise defined herein shall have
the meanings given them in the Lease.
B. Landlord has agreed to provide a tenant improvement allowance to
Tenant for a portion of the Demised Premises, conditioned upon Tenant repaying
such tenant improvement allowance over the remainder of the term of the Lease,
and Tenant has agreed to accept such tenant improvement allowance upon such
condition.
C. Landlord and Tenant now desire to amend the Lease and to entirely
replace and supercede the Fourth Amendment to reflect Landlord's provision of
the tenant improvement allowance to and the amortized repayment thereof by
Tenant upon the terms and conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, and the mutual covenants
contained herein, the parties hereto hereby agree as follows:
1. AMENDMENTS TO LEASE.
1.1 Section 4.6 of the Lease is hereby amended by (i) adding the
title "Tenant Improvement Allowances:" at the beginning of such section (after
the number of the section), (ii) renumbering the existing text of Section 4.6 as
Section 4.6(a), (iii) changing all existing references in the Lease from "Tenant
Improvements" to "Suite 160 & 210 Tenant Improvements," (iv) changing all
existing references in the Lease from "Tl Allowance" to "Suite 160 & 210 Tl
Allowance," and (v) adding the following as Section 4.6(b):
"(b) Landlord shall provide Tenant with a tenant improvement
allowance (the "Suite 100 Tl Allowance") of up to Two Hundred Ninety-One
Thousand, Eight Hundred Fifty-Eight and 44/100ths Dollars ($291,858.44) for
tenant improvements which Tenant desires to make to Suite 100 (the "Suite 100
Tl's"). Such amount shall be paid by Landlord to Tenant in one lump sum payment
upon: (i) lien free completion of the Suite 100 Tl's, (ii) Tenant's acceptance
thereof from the contractor or contractors performing such work, and (iii)
presentation to Landlord of lien waivers, receipts for payment and such other
evidence of the payment in full of all costs and expenses of the Suite 100 Tl's
as Landlord shall reasonably request. If the total cost of the Suite 100 Tl's
exceeds the Suite 100 Tl Allowance, the overage shall be the sole responsibility
of Tenant, and shall be at Tenant's sole cost and expense. Except for the
payment of the Suite 100 Tl Allowance and as set forth in the Third Amendment,
Landlord shall have no obligation or liability of any kind with respect to the
Suite 100 Tl's, which shall be subject to all of the approvals and conditions
described in Article 17 with hereof with respect to Alterations undertaken by
Tenant."
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1.2 Section 5.2 of the Lease is hereby amended in its entirety,
effective from and after the Effective Date, to read as follows:
"5.2 In addition to Basic Annual Rent, Tenant agrees to pay to Landlord
as additional rent ("Additional Rent") at times hereinafter specified in this
Lease (i) Tenant's pro rata share ("Tenant's Pro Rata Share"), as set forth in
Section 2.1.6 and as may be subsequently amended, of Operating Expenses as
provided in Article 7, (ii) commencing October 1, 1999, tenant improvement rent
equal to Two Hundred Ninety-One Thousand, Eight Hundred Fifty-Eight and
44/100ths Dollars ($291,858.44), fully amortized, with interest at a rate of 13%
per annum, in 27 equal monthly installments commencing October 1, 1999 and
ending December 1, 2001 ($12,525.46 per month) and (iii) any other amounts that
Tenant assumes or agrees to pay under the provisions of this Lease that are owed
to Landlord, including without limitation the cost of utilities not paid by
Tenant directly to the supplier and any and all other sums that may become due
by reason of any default of Tenant or failure on Tenant's part to comply with
the agreements, terms, covenants and conditions of this Lease to be performed by
Tenant, after notice and lapse of applicable cure period."
2. MISCELLANEOUS:
2.1 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.
2.2 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.
2.3 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.
2.4 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.
2.5 Each term of this Amendment is contractual and not merely a
recital.
2.6 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.
2.7 The unenforceability of a portion of this Amendment shall not
affect the enforceability of the remainder of this Amendment.
2.8 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.
2.9 Except as specifically amended or modified by this Amendment,
the Lease (including, without limitation, the First Amendment, the Second
Amendment, and the Third Amendment) remains in full force and effect.
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2.10 This Fifth Amendment entirely replaces and supercedes the
Fourth Amendment, which is hereby terminated and of no further force or effect.
2.11 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.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first written above.
"Tenant"
SEQUANA THERAPEUTICS, INC., a California
corporation, d/b/a/ Axys Pharmaceuticals, Inc.
By: /s/ Daniel H. Petree
Its: President & COO
"Landlord"
ARE - 11099 NORTH TORREY PINES, LLC, a Delaware
limited liability company
BY: ALEXANDRIA REAL ESTATE EQUITIES, INC., a
Maryland corporation
By: /s/ Lynn Anne Shapiro
Its: General Counsel
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