EXHIBIT 10.46
FIRST AMENDMENT TO SUBLEASE
THIS FIRST AMENDMENT TO SUBLEASE ("Amendment") effective as of February
27, 1998 ("Effective Date"), is entered into by and between Molecular
Biosystems, Inc., a Delaware corporation (the "Sublessor"), and Dura
Pharmaceuticals, Inc., a Delaware corporation (the "Sublessee"). Sublessor
and Sublessee are collectively hereinafter referred to as the "parties."
RECITALS
B. Sublessor and Sublessee entered into a written Sublease
effective October 1, 1997 (the "Sublease") pursuant to which Sublessor
subleased to Sublessee and Sublessee subleased from Sublessor the Premises
described therein. Sublessor holds the Premises and certain other premises
(collectively, the "Master Premises") pursuant to a certain Master Lease made
as of June 19, 1995 ("Master Lease"), by and between Radnor/Collins/Sorrento
Partnership, as "Lessor," and Sublessor under this Sublease, as "Lessee."
C. Sublessor and Sublessee now wish to make modifications to the
Sublease to expand the Premises, revise the rental rate for the Premises, and
to extend the Term of the Sublease, all in accordance with the terms and
conditions set forth herein.
D. The parties now wish to amend the Sublease to reflect these
changes and to make other modifications in consideration therefor.
NOW, THEREFORE, in consideration of the above Recitals, and the mutual
covenants contained herein, the parties agree as follows:
1. LEASE AMENDMENT. A copy of the Sublease is attached hereto and
incorporated herein as EXHIBIT A. Except as expressly provided in this
Amendment, the Sublease shall remain unmodified, in full force and effect.
The capitalized terms used herein shall have the meanings ascribed to them in
the Sublease unless otherwise indicated. To the extent that there is any
conflict between this Amendment and the Sublease, the provisions of this
Amendment shall prevail.
2. PREMISES.
2.1 Effective April 15, 1998 or such earlier date as
Sublessor elects by five (5) days prior written notice to Sublessee ("First
Expansion Date"), the Premises shall be expanded to include the entire Master
premises except the Second Expansion Space (the "First Expansion Space") of
the Building, as more particularly shown in EXHIBIT B.
2.2 Effective June 1, 1998 or such earlier date as Sublessor
elects by ten (10) days prior written notice to Sublessee ("Second Expansion
Date"), the Premises shall be further expanded to include the entire Master
Premises of Sublessor under the Master Lease as set forth in Section 2.1 of
the Master Lease. The space added to the Premises pursuant to this Section
2.2 shall be known as the "Second Expansion Space." Collectively, both the
First Expansion Space and the Second Expansion Space shall be known as the
"Expansion Space."
3. PROPORTIONATE SHARE.
3.1 On the First Expansion Date, the Sublessee's
Proportionate Share, as set forth in the Basic Sublease Information and
Section 1.1 of the Sublease shall be increased to ninety-five percent (95%).
3.2 On and after the Second Expansion Date, the Sublessee's
Proportionate Share shall be increased to one hundred percent (100%).
4. BASE RENT.
4.1 From and after the First Expansion Date, the Base Rent
for the Premises shall be $1.07 per rentable square foot, or a total of
Fifty-Five Thousand Nine Hundred Seventy-Three Dollars and Eighty-Four Cents
($55,973.84) per month.
4.2 From and after the Second Expansion Date, the Base Rent
for the Premises shall be Fifty-Eight Thousand Five Hundred Forty-One Dollars
and Eighty-Four Cents ($58,541.84) per month.
4.3 On July 1, 1998, and each anniversary thereof,
Sublessee's Base Rent shall increase by four percent (4%) of Sublessee's Base
Rent for the preceding month.
5. TERM. The Term of the Sublease shall expire on December
31,1999.
6. LIMITATION OF EXCLUSIONS. From and after the Second Expansion
Date, Sections 17.1 and 17.4 shall be incorporated into the Sublease,
notwithstanding Section 7.2 of the Sublease.
7. SUBLESSOR'S OBLIGATIONS. Section 7.4 of the Sublease shall be
deleted in its entirety and the following shall be substituted therefor:
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7.4 SUBLESSOR'S OBLIGATIONS. Sublessee acknowledges that
Sublessor shall be under no obligation to provide any
services or satisfy any obligations or covenants of
Master Landlord contained in the Master Lease;
provided, however, Sublessor, upon written notice by
Sublessee shall promptly and diligently attempt to
enforce all obligations of Master Landlord under the
Master Lease, provided that Sublessee reimburses
Sublessor for all reasonable costs and expenses
incurred in connection therewith.
8. PHYSICAL CONDITION. Sublessee and Sublessor recognize and
agree that Sublessor would not sublease the Expansion Space to Sublessee and
Sublessee would not sublease the Expansion Space from Sublessor except on an
"as is" basis and acknowledges that neither Sublessee nor Sublessor has made
any representations of any kind, express or implied, in connection with the
Improvements or physical conditions on, or bearing on, the Expansion Space,
including without limitation the suitability of the Expansion Space for
Sublessee's purposes. Sublessee further recognizes and agrees that neither
Sublessor nor Master Landlord shall be required to perform any work of
construction, alteration or maintenance of or to the Expansion Space except
as set forth in the Master Lease.
9. SUBLESSEE'S ADDITIONAL OBLIGATIONS. From and after the Second
Expansion Date, Sublessee shall expressly assume and shall be directly
responsible for all Lessee's obligations under Section 11 of the Master
Lease. As Sublessor in its sole discretion may from time to time demand,
Sublessee shall provide Sublessor within five (5) business days with copies
of all contracts, invoices, accounting records and any other records
associated with Sublessee's fulfillment of the Lessee's obligations under
Section 11 of the Master Lease. However, at Sublessor's sole discretion,
Sublessor may choose to directly fulfill any or all of Sublessor's
obligations under Section 11 of the Master Lease and be compensated for any
such expenses reasonably incurred pursuant to Section 3.2 of the Sublease and
Section 3.2 of this Amendment. Any maintenance contracts entered into by
Sublessee for obligations covered by this Section 9 shall by their terms be
freely assignable to Sublessor, and Sublessee shall promptly assign any such
contracts to Sublessor if Sublessor at its sole discretion so requests.
10. FORMER BUILDING AREA COMMON AREAS. As of the Effective Date,
Sublessor shall have no responsibility for the care, management or expenses
of any portion of the Building Common Area incorporated into Sublessee's
Premises pursuant to Sections 2.1 and 2.2 of this Amendment. As of the
Second Expansion Date, all Building Common Areas shall be included in the
Premises, Sublessor shall have no maintenance, repair or other obligations in
connection therewith and Sublessee shall have direct responsibility for
repair and maintenance thereof, in accordance with the terms and conditions
of the Sublease and the Master Lease.
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11. SECURITY DEPOSIT. Upon executing this Amendment, Sublessee
shall deposit with Sublessor a Security Deposit in the amount of Fifty-Eight
Thousand Five Hundred Forty-One Dollars and Eighty-Four Cents ($58,541.84).
The Security Deposit shall secure Sublessee's obligations under the Sublease
to pay rent and other monetary amounts, to maintain the Premises and repair
damages thereto, to surrender the Premises to Sublessor in clean and sanitary
condition and to discharge Sublessee's other obligations hereunder.
Sublessor may use and commingle the Security Deposit with other funds of
Sublessor. If Sublessee fails to perform Sublessee's obligations hereunder,
Sublessor may, but without any obligation to do so, apply all or any portion
of the Security Deposit towards fulfillment of Sublessee's unperformed
obligations. If Sublessor does so apply any portion of the Security Deposit,
Sublessee shall immediately pay Sublessor a sufficient amount in cash to
restore the Security Deposit to the full original amount. In the event that
Sublessor shall expend the same in order to cure Sublessee's default
hereunder, Sublessee's failure to forthwith remit to Sublessor a sufficient
amount in cash to restore the Security Deposit to the original sum deposited
within five (5) days after Sublessee's receipt of notice from Sublessor that
such amounts have been so expended shall constitute a material default of the
Sublease. The Security Deposit shall be held by Sublessor without liability
for interest on the same. Upon termination of this Lease, if Sublessee has
then performed all of Sublessee's obligations hereunder, Sublessor shall
return the Security Deposit to Sublessee. If Sublessor sells or otherwise
transfers Sublessor's rights or interest under this Lease, Sublessor may
deliver the Security Deposit to the transferee, whereupon Sublessor shall be
released from any further liability to Sublessee with respect to the Security
Deposit.
12. NOTICES. Sublessee shall concurrently send copies to
Sublessor, at Sublessor's Address for Notice set forth in the Basic Sublease
Information of the Sublease, of all notices Sublessee sends to Master
Landlord and shall promptly send to Sublessor copies of all notices received
from Master Landlord.
13. INDEMNIFICATION. Sublessee shall indemnify, protect, defend
and hold Sublessor harmless from and against any and all claims, liabilities,
penalties, losses or expenses (including reasonable attorneys' fees and
costs) arising in connection with Sublessee's breach or failure to perform
any of Sublessee's obligations under the Sublease as modified by this
Amendment and/or the Master Lease. Sublessor shall indemnify, protect,
defend and hold Sublessee harmless from and against any and all claims,
liabilities, penalties, losses or expenses (including reasonable attorneys'
fees and costs) arising in connection with Sublessor's breach or failure to
perform any of Sublessor's obligations under the Sublease as modified by this
Amendment and/or the Master Lease.
14. MASTER LANDLORD'S CONSENT. This Amendment is conditioned upon
receipt of Master Landlord's written approval of this Amendment prior to the
First Expansion Date. If Master Landlord withholds its consent, this
Amendment shall be deemed void and of no effect.
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15. AUTHORITY; COUNTERPARTS. Each person executing this Amendment
on behalf of a party represents that he or she is authorized and empowered to
do so and to thereby bind the party on whose behalf he or she is signing.
This Amendment may be executed in any number of counterparts, each of which
shall be deemed to be an original and all of which together shall comprise
but a single instrument.
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[SIGNATURE PAGE TO SUBLEASE AMENDMENT]
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
effective as of the date and year hereinabove written.
SUBLESSOR:
MOLECULAR BIOSYSTEMS, INC.
a Delaware corporation
By: /s/ Gerard A. Wills
---------------------------
Its Chief Financial Officer
By: ___________________________
Its___________
SUBLESSEE:
DURA PHARMACEUTICALS, INC.
a Delaware corporation
By: /s/ M.R. Woodbury
---------------------------
Its Senior Vice President
By: ___________________________
Its___________
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