This SUBLEASE AGREEMENT (“Sublease”) is made and entered into as of May 24, 2005 by and between BIOGEN IDEC INC., a Delaware corporation (“Sublandlord”), and MACROPORE BIOSURGERY, INC., a Delaware corporation (“Subtenant”).
WHEREAS, BIODEC, LLC, a California limited liability company (as successor to Professors Fund I, L.P., as Managing Agent for All Spectrum Services, Inc.), as Landlord (“Landlord”), and Sublandlord, as Tenant, are parties to a certain Lease Agreement dated as of August 13, 1996 (“Original Lease”), as amended by that certain First Amendment to Lease (“First Amendment”) dated as of October 1, 1999, that certain Second Amendment to Lease (“Second Amendment”) dated as of June 16, 2000, that certain Third Amendment to Lease (“Third Amendment”) dated as of October 13, 2000, and that certain Fourth Amendment to Lease (“Fourth Amendment”) dated as of March 5, 2004 (collectively, as amended, the “Master Lease”), whereby Landlord leased to Sublandlord the buildings located at 3020 Callan Road (the “3020 Building”) and 3030 Callan Road (the “3030 Building,” and together with the 3020 Building, collectively, the “Buildings”), San Diego, CA (“Master Premises”), as more particularly described in the Master Lease, upon the terms and conditions contained therein. All initially capitalized terms used herein shall have the same meanings ascribed to them in the Master Lease unless otherwise defined herein. A copy of the Master Lease is attached hereto as Exhibit ”A” and made a part hereof. Sublandlord is vested with the leasehold estate described in the Master Lease.
WHEREAS, Sublandlord and Subtenant are desirous of entering into a sublease of the entirety of the Master Premises so indicated on the demising plan annexed hereto as Exhibit ”B” and made a part hereof (“Sublease Premises”) on the terms and conditions hereafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto mutually covenant and agree as follows:
1. Demise. Sublandlord hereby subleases and demises to Subtenant and Subtenant hereby hires and subleases from Sublandlord the Sublease Premises consisting of approximately 45,117 rentable square feet (“RSF”) of the entirety of the 3020 Building, and approximately 45,883 RSF of the entirety of the 3030 Building, or approximately 91,000 RSF of space in the aggregate, subject to the terms, covenants and conditions hereinafter set forth. The parties stipulate that the square footage of the Sublease Premises shall be as specified above.
2. Sublease Term.
a. Sublease Term. The term of this Sublease (“Term”) shall commence on October 1, 2005 (“Sublease Commencement Date”), and end, unless sooner terminated as provided herein, on June 30, 2010 (“Sublease Expiration Date”)
b. License for Early Entry Period. Prior to the Sublease Commencement Date and not later than ten (10) days following the full execution of this Sublease and Sublandlord’s receipt Landlord’s consent to this Sublease, Subtenant shall have a license (the “License”) to enter onto and occupy the Sublease Premises (the “License Area”). The License shall be limited to the use and occupancy of the Licensed Area solely for purposes of construction of the Tenant Improvements (defined below) and installing data and telecommunications cabling and equipment. Subtenant’s use and occupancy of the License Area shall be substantially on all the terms and provisions of this Sublease, as the same apply to the Sublease Premises, including, without limitation, provisions requiring maintenance of insurance by Subtenant and indemnity obligations in favor of Sublandlord and payment of utilities used by Subtenant during such occupancy; provided, however, Subtenant shall not be required to pay Rent (defined below) during the term of the License. The Deposit shall secure performance of Subtenant with respect to its obligations in connection with the License and, effective on the Sublease Commencement Date, the License shall automatically terminate. Sublandlord has no obligation to prepare the License Area for Subtenant’s use or occupancy other than the removal of the furniture, fixtures and equipment identified on the attached Schedule 2(b) within thirty (30) days of the commencement of the License. Except for the removal of such items, the License Area shall be tendered to Subtenant in its “as-is” condition with Building systems in working order and condition. Subtenant shall not undertake any action with respect to the License Area which is incompatible with the duration and scope of the License. Subtenant agrees that the License does not constitute a leasehold interest in the License Area and Subtenant agrees not to assert any leasehold interest rights in or to the License Area. Notwithstanding anything to the contrary in this Section 2(b), in the event Subtenant commences normal operation of its business
(i.e., activities other than readying the Sublease Premises for Subtenant’s occupancy as described hereinabove) in any portion of the Sublease Premises prior to the Sublease Commencement Date, Subtenant shall pay to Sublandlord all additional rent payable pursuant to the Master Lease, including Operating Expenses (as defined in Section 4(c) below), applicable to such portion of the Sublease Premises, such payment to be made in advance, for each month (or portion thereof) of such occupancy; provided, however, Subtenant shall not be required to pay Base Rental (as defined in Section 4(a) below) prior to the Sublease Commencement Date.