exv10w22






Exhibit 10.22




FIRST AMENDMENT TO LEASE

(5871 Oberlin Drive)




     THIS FIRST AMENDMENT TO LEASE (“First Amendment”) is made and entered into as of the 20th day
of December, 2010, by and between ARE-SD REGION NO. 31, LLC (“Landlord”), PHENOMIX CORPORATION, a
Delaware corporation (“Tenant”) and ANADYS PHARMACEUTICALS, INC., a Delaware corporation
(“Subtenant”).



R E C I T A L S:




     A. Reference is hereby made to that certain Lease Agreement dated July 31, 2003, between VPI
OBERLIN 1, L.P., a California limited partnership (“Original Landlord”) predecessor-in-interest to
Landlord and Tenant (the “Lease”), for space containing approximately 16,603 rentable square feet
on the ground floor (the “Premises”) in that certain office building located and addressed at 5871
Oberlin Drive, San Diego, California 92121 (the “Building”).



     B. Pursuant to that certain Assignment of Leases and Security Deposits dated November 22,
2010, Original Landlord assigned to Landlord, and Landlord assumed, all of Original Landlord’s
right, title and interest in the Lease.



     C. Pursuant to that certain Sublease Agreement dated June 18, 2009, as amended by that certain
Amendment #1 dated November 8, 2010 (“Sublease Amendment”), Tenant subleased a portion of the
Premises (consisting of approximately 13,893 rentable square feet (the “Sublease Premises”)) to
Anadys Pharmaceuticals, Inc. (as subtenant) (collectively, the “Sublease”).



     D. By this First Amendment, Landlord and Tenant desire to provide for the early release of
Tenant from its leasehold obligations and for the recognition of Subtenant as a direct tenant of
Landlord for the remainder of the Sublease Term, and to otherwise modify the Lease and Sublease as
provided herein.



     E. Unless otherwise defined herein, capitalized terms as used herein shall have the same
meanings as given thereto in the Lease.



     NOW, THEREFORE, in consideration of the foregoing recitals and the mutual covenants contained
herein, and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:



A G R E E M E N T:




     1. Release of Tenant. Effective as of December 1, 2010, Tenant shall, subject to the
terms hereof, be released from all obligations under the Lease accruing after December 1, 2010;
provided, however, that Tenant shall remain liable to Landlord for its indemnity obligations which
expressly survive the expiration or sooner termination of the Lease.



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     2. Recognition of Subtenant. Subtenant and Tenant acknowledge and agree that the
“video camera system” shall hereby deemed included on the list of FF&E attached to the Sublease
Amendment as Exhibit C. The parties agree that there have been no amendments or modifications to
the Sublease, except as set forth above. Effective as of December 1, 2010, (A) Landlord agrees to
recognize Subtenant as its direct tenant of the Premises (as modified herein) in accordance with
all of the terms, covenants and conditions of the Sublease (except as set forth below) and (B)
Subtenant agrees to attorn to Landlord as its landlord on all the terms and conditions of the
Sublease and to fully and faithfully perform its obligations under the Sublease directly to
Landlord. Tenant consents to such attornment and agrees that Subtenant is to perform all of the
covenants, terms and conditions of the Sublease for the benefit of Landlord and Tenant hereby
releases Subtenant from any liability or obligation to Tenant arising out of the Sublease.
Landlord shall not (i) be liable for any prepayment of more than one (l) month’s rent or any
security deposit paid by Subtenant to Tenant (except to the extent such security deposit is
delivered to Landlord pursuant to Section 4 below), (ii) be liable for any previous act or omission
of Tenant under the Sublease or for any other defaults of Tenant under the Sublease, (iii) be
subject to any defenses or offsets previously accrued which Subtenant may have against Tenant.
Landlord hereby agrees to perform all of the covenants and obligations of Tenant as sublandlord
under the Sublease for the benefit of Subtenant from and after December 1, 2010 except for the
obligations of Tenant under the following Sections of the Sublease which the parties agree shall
not be the obligation of Landlord: Section 7.9, the second sentence of Section 8 and Section 10.
Subtenant shall in no way be deemed liable for any act or omission of Tenant or to have assumed the
Tenant’s obligations under the Lease. Without limitation on the foregoing, Subtenant will not be
liable or responsible for any restoration obligations of Tenant pursuant to the Lease, or for any
defaults of Tenant pursuant to the terms of the Lease, including without limitation any breach
relating to Hazardous Materials which Tenant may have caused or permitted during its tenancy.



     3. Lease Modifications. Effective as of December 1, 2010, the Lease is modified as
follows:




          2.1. Premises. Effective as of December 1, 2010, the Premises shall be
deemed to mean that certain space depicted on Exhibit “A” attached hereto and containing 13,893
rentable square feet.




          2.2. Tenant’s Pro-Rata Share. Effective as of December 1, 2010, Tenant’s
Pro-Rata Share shall be 41.19% and notwithstanding anything to the contrary in the Sublease, the
Subtenant shall pay 100% of Tenant’s Pro-Rata Share of Operating Expenses.




          2.3. Basic Monthly Rent. Effective as of December 1, 2010, Subtenant shall pay, in
accordance with the provisions of this Section 2.3, Basic Monthly Rent for the Sublease Premises
(in addition to any additional rent and utilities costs due under the Sublease) as follows:




	 	 	 	 	 
	Period	 	Basic Monthly Rent
	 
|
	12/01/10-01/31/11

	 	$	29,869.95	 






 









 






     3. Purchase of FF&E by Landlord. Landlord shall purchase from Tenant the
furniture, fixtures and equipment described on Exhibit “B” attached hereto for the sum of
Twenty-Seven Thousand Six Hundred Ninety-Six and 00/100 Dollars ($27,696.00), which amount
shall be credited (the “Rent Credit”) by Landlord to Tenant’s remaining rent obligations under
the Lease.





     4. Transfer of Security Deposit. Tenant and Subtenant acknowledge and agree that
Tenant is holding a security deposit equal to Twenty-Nine Thousand Eight Hundred Sixty-Nine and
95/100 Dollars ($29,869.95) under the Sublease. Concurrently with Tenant’s execution of this
First Amendment, Tenant shall deliver such security deposit to Landlord and Landlord shall hold
such amount as security for Subtenant’s performance under the Sublease, and Landlord shall
return such deposit (or any unused portion thereof) to Subtenant in accordance with the terms
of the Sublease.



     5. Release of Letter of Credit. Upon full execution and delivery of this First
Amendment, Landlord shall return to Tenant that certain Letter of Credit issued by Comerica
Bank in favor of Landlord (as beneficiary) in the amount of Two Hundred Sixteen Thousand Three
Hundred Thirty-Eight and 88/100 Dollars ($216,338.88).



     6. Tenant’s Rent Payment. Concurrently with Tenant’s execution and delivery of the
First Amendment to Landlord, Tenant shall pay to Landlord an amount equal to Twenty-Two
Thousand Six Hundred Twenty-Six and 51/100 Dollars ($22,626.51) in order to satisfy Tenant’s
remaining rent obligations under the Lease (the “Rent Differential Payment”), which Rent
Differential Payment was calculated after application of Rent Credit (in the amount of
Twenty-Seven Thousand Six Hundred Ninety-Six and 00/100 Dollars ($27,696.00)) on account of
Landlord’s purchase of the FF&E described below.



     7. Condition of the Premises. Subtenant hereby acknowledges that Landlord shall
not be obligated to provide or pay for any improvement work or services related to the
improvement of the Premises. Subtenant also acknowledges that Landlord has made no
representation or warranty regarding the condition of the Premises.



     8. Reimbursement. Upon full execution and delivery of this First Amendment,
Landlord shall reimburse Subtenant for its actual legal fees incurred in connection with the
review and negotiation of this First Amendment; provided that such reimbursement obligation
shall not exceed Five Thousand Dollars ($5,000).



     9. Brokers. Each party represents and warrants to the other that no broker, agent
or finder negotiated or was instrumental in negotiating or consummating this First Amendment.
Each party further agrees to defend, indemnify and hold harmless the other party from and
against any claim for commission or finder’s fee by any other person or entity who claims or
alleges that they were retained or engaged by the first party or at the request of such party
in connection with this First Amendment.



     10. Signing Authority. Each individual executing this First Amendment on behalf of
Landlord, Tenant and Subtenant hereby represent and warrant that their respective entities are
duly formed and existing entities qualified to do business in the State of California and that
the Landlord, Tenant and Subtenant, as applicable, have full right and authority to execute and
deliver this First Amendment and that each person signing on behalf of such entity is authorized to do so.



 









 





     11. No Further Modification. Except as set forth in this First Amendment, all of
the terms and provisions of the Lease shall apply during the Extended Term and shall remain
unmodified and in full force and effect. Effective as of the date hereof, all references to the
“Lease” shall refer to the Lease as amended by this First Amendment.



[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]




 









 





     IN WITNESS WHEREOF, this First Amendment has been executed as of the day and year first above
written.



					
	 
	“LANDLORD” 	

 ARE-SD REGION NO. 31, LLC,

a Delaware limited liability company

 	 
	 	By:  	ALEXANDRIA REAL ESTATE EQUITIES, L.P.,
 	 
	 	 	a Delaware limited partnership, 	 
	 	 	managing member 	 
	 



					
	 	By:  	ARE-QRS CORP.,
 	 
	 	 	a Maryland corporation, general partner 	 
	 	 	 	 



					
	 	By:  	/s/ Gary Dean
 	 
	 	 	Its: VP — RE Legal Affairs 	 
	 	 	 	 



	 	 	 	 	 
	“TENANT”  	PHENOMIX CORPORATION,

a Delaware corporation

 	 
	 	By:  	Brian Baker
 	 
	 	 	Its: President 	 
	 	 	 
	 	By:  	                                                /s/ Brian Baker
 	 
	 	 	Its: President 	 
	 	 	 	 
	“SUBTENANT”  	ANADYS PHARMACEUTICALS, INC.,

a Delaware corporation

 	 
	 	By:  	/s/ Peter Slover
 	 
	 	 	Its: Vice President, Finance and Operations 	 
	 	 	 	 
	 




 









 





EXHIBIT “A” 




“PREMISES”









 









 








EXHIBIT “B” 


FF&E LIST




	 	 	 	 	 	 	 	 	 
	BarCode	 	Model No./Description	 	Serial No.	 	Vendor
	 
	000-1255

	 	N750 Access / Intrusion Control System
	 	 	 	 	 	Northern Computer Parker
	000-1261

	 	9 HP Boiler steam plant & 42 HP boiler steam plant

Emergency Generator	 	 	 	 	 	 
	000-1235

	 	Cage & Rack Washer R630
	 	 	630-1203-N1405	 	 	NorthWestern Systems
	 
	000-1224

	 	Sterilizer SSR-3A-PB
	 	 	6045	 	 	Laboratory Equipment
	000-1250

	 	RO/DI system
	 	 	 	 	 	Robert E Byrne Company
	000-1242

	 	Video Camera System
	 	 	 	 	 	AIS /Mitsubishi
	000-1225

	 	Glass washer #470
	 	 	3601894003	 	 	Amsco
	000-1226

	 	Glass dryer #475
	 	 	3632493002	 	 	Amsco
	000-1001/1002

	 	Phone System
	 	 	 	 	 	Siemens






	 	 	 	 	 	 	 	 	 
	Office	 	Office Furniture	 	Qty	 	 
	 
	203

	 	Desk
	 	 	1	 	 	 
	 

	 	Side Chair — Red
	 	 	2	 	 	 
	 

	 	Bookcase
	 	 	1	 	 	 
	 

	 	Cabinet
	 	 	1	 	 	 
	 
	 	 	 	 	 	 	 	 
	204

	 	Desk
	 	 	1	 	 	 
	 

	 	Side Chair
	 	 	4	 	 	 
	 

	 	Bookcase
	 	 	1	 	 	 
	 

	 	Cabinet
	 	 	1	 	 	 
	 

	 	Round Table (205)
	 	 	1	 	 	 
	 
	 	 	 	 	 	 	 	 
	206

	 	Desk
	 	 	2	 	 	 
	 

	 	Bookcase(207)
	 	 	2	 	 	 
	 
	 	 	 	 	 	 	 	 
	208

	 	Desk
	 	 	1	 	 	 
	 

	 	Side Chair — Red
	 	 	2	 	 	 
	 

	 	Round Table
	 	 	1	 	 	 
	 
	 	 	 	 	 	 	 	 
	210

	 	Desk
	 	 	1	 	 	 
	 

	 	Bookcase
	 	 	1	 	 	 
	 

	 	Round Table
	 	 	1	 	 	 
	 
	 	 	 	 	 	 	 	 
	211

	 	Desk
	 	 	1	 	 	 
	 

	 	Side Chair
	 	 	1	 	 	 
	 
	212

	 	Desk
	 	 	1	 	 	 
	 

	 	Side Chair
	 	 	3	 	 	 
	 

	 	Round Table
	 	 	1	 	 	 
	 
	 	 	 	 	 	 	 	 
	213

	 	Conference Table
	 	 	1	 	 	 
	 

	 	Office Chair — Green
	 	 	1	 	 	 
	 

	 	Bookcase
	 	 	2	 	 	 
	 
	 	 	 	 	 	 	 	 
	214

	 	Round Table
	 	 	1	 	 	 
	Kitchen

	 	Side Chair — Black
	 	 	3	 	 	 
	 
	 	 	 	 	 	 	 	 
	217

	 	Tech Stations
	 	 	12	 	 	 
	Tech Area

	 	Cubes
	 	 	5	 	 	 
	 
	 	 	 	 	 	 	 	 
	201

	 	Cubes
	 	 	17	 	 	 
	Open Offices