Exhibit 10.50


 


SUBLEASE


 


THIS SUBLEASE is made and entered into this 24th day of November, 2003,
by and between BRISTOL-MYERS SQUIBB COMPANY, a Delaware corporation
(“Sublandlord”) and AMYLIN PHARMACEUTICALS, INC., a Delaware corporation
(“Subtenant”).


 


1.  Basic Lease Provisions.


 


A. Property Address:  4570
Executive Drive, San Diego, California 92121;


 


B. Subtenant’s Address for notices before and after the Commencement
Date: 9360 Towne Centre Drive, Suite 110, San Diego, CA, 92121, Attn: Executive
Director of Operations, with a copy to: Amylin Pharmaceuticals, Inc., 9360
Towne Centre Drive, Suite 110, San Diego, CA, 92121, Attn: Lloyd Rowland, Vice
President and General Counsel;


 


C. Sublandlord’s Address for notices: Bristol-Myers Squibb Company,
Attention: Corporate Real Estate Department, P.O. Box 4000, Princeton, NJ  08543-4000, with a copy to Smith Stratton
Wise Heher & Brennan, LLP, Attention: Christopher S. Tarr, Esq., 600
College Road East, Princeton, NJ  08540;


 


D. Prime Landlord: LMC-Shoreham Investment Company, LLC, and Convoy
Court Investment Company, LLC, as tenants in common;


 


E. Prime Landlord’s Address for notices: LMC-Shoreham Investment
Company, LLC, 4570 Executive Drive, Suite 430, San Diego, CA 92121;


 


F. Identification of Prime Lease: Lease made February 23, 1999, between
CombiChem, Inc., and LMC-Shoreham Investment Company, LLC, and Convoy Court
Investment Company, LLC, as tenants in common;


 


G. Sublease Term: From the Commencement Date through January 31, 2015;


 


H. Commencement Date: The  later
to occur of: (i) the date upon which this Sublease is fully executed by and
delivered to each of the parties; and (ii) the date upon which Prime Landlord’s
executed Consent of Prime Landlord and any lender’s executed Subordination,
Non-Disturbance and Attornment Agreement, each of which shall be in a form
acceptable to Subtenant, are delivered to each of the parties;


 


I. Expiration Date: January 31, 2015;


 


J. Base Rent: $2,577,396.36 per annum, payable in equal monthly
installments of $214,783.03 on the first day of each month during the Term and
subject to escalation as provided in Section 12 of the Schedule of the Prime
Lease; provided, however, that, so long as Subtenant is not in default of any
of its obligations hereunder beyond all applicable cure


 


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periods, (i) 100% of the monthly installments of the Base Rent shall be
abated for the period of one year commencing on the date which is sixty (60)
days after the Commencement Date (the “Rent Commencement Date”); and (ii) 50%
of the monthly installments of the Base Rent shall be abated for the period of
one year commencing on the first anniversary of the Rent Commencement Date;


 


K. Payee of Rent: Sublandlord;


 


L. Address for Payment of Rent: By wire transfer to Bristol Myers
Squibb Company, Chase Manhattan Bank of New York, ABA# 021-0000-21, Account #
323232914;


 


M. Sublease Share: Sixty-two and one-half percent (62.5%);


 


N. Description of Premises: The entire “Premises” as defined in, and
leased pursuant to, the Prime Lease, consisting of  77,539 rentable square feet on second, third and fourth floors of
the building (the “Building”) located at 4570 Executive Drive, San Diego,
California, as depicted on Exhibit A to the Prime Lease;


 


O. Security Deposit: $1,288,698.18 in cash or irrevocable standby
letter of credit in form reasonably satisfactory to Sublandlord; provided,
however, that the amount of the Security Deposit shall be reduced to
$214,783.03 after, and for so long as, Subtenant obtains, and thereafter
maintains, either (i) a credit rating of BBB or better from Standard &
Poor’s or (ii) at least $300,000,000 in annual sales;


 


P. Subtenant’s Use: The Permitted Uses, as such term is defined in
Section 13 of the Prime Lease; and


 


Q. Broker: Phase 3 Properties, Inc., on behalf of Sublandlord, and
Burnham Real Estate Services, on behalf of Subtenant.


 


2. Prime Lease. Sublandlord is the tenant under a lease (the
“Prime Lease”) with the Prime Landlord identified in Section 1(D), bearing the
date specified in Section 1(F).  The
Prime Lease is attached hereto as Exhibit “A” and is hereby incorporated
herein.


 


3. Sublease. Sublandlord, for and in consideration of the rents
herein reserved and of the covenants and agreements herein contained on the
part of the Subtenant to be performed, hereby subleases to the Subtenant, and
the Subtenant accepts from the Sublandlord, certain space described in Section
1(N) (the “Premises”) and shown on Exhibit
A to the Prime Lease.


 


4. Term. Subject to Section 5, the term of this Sublease (the
“Term”) shall commence on the date (hereinafter the “Commencement Date”) which
is the date specified in Section 1(H); and shall expire on the date (the
“Expiration Date”) specified in Section 1(I), unless sooner terminated as
otherwise provided elsewhere in this Sublease.


 


5. Possession. In lieu of Sublandlord cleaning all floors,
ceilings and walls, touching-up the paint and replacing any missing floor tiles
prior to delivery of the Premises to Subtenant, Sublandlord shall provide Subtenant
with a cash allowance of Nine Thousand One Hundred Dollars ($9,100.00) which
shall be due and payable on the Commencement Date.  Except as otherwise


 


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set forth herein, the Premises are to be delivered by Sublandlord to
Subtenant “AS IS,” and shall include all personal property, furniture and
telephones and related equipment located in the Premises on the Commencement
Date.  If the Premises are not delivered
on or before the date specified in Section 1(H) hereof, this Sublease shall
remain in effect, Sublandlord shall have no liability to Subtenant as a result
of any delay in occupancy, but unless the delay is occasioned by any act or
omission of Subtenant, the Commencement Date determined in accordance with
Section 4 hereof shall be delayed to the date on which such work is
substantially completed; in no event shall the Expiration Date be delayed.  Notwithstanding the foregoing or any
provision of this Sublease to the contrary, if for any reason Sublandlord
cannot deliver possession of the Premises to Subtenant by February 29, 2004,
Subtenant may terminate this Sublease at Subtenant’s election upon written
notice to Sublandlord.


 


6. Subtenant’s Use. The Premises shall be used and occupied only
for the Subtenant’s Use set forth in Section 1(P).


 


7. Rent. Beginning on the Rent Commencement Date, Subtenant
agrees to pay the Base Rent as set forth in Section 1(J) to the Payee specified
in Section 1(K), at the address specified in Section 1(L), or to such other
payee or at such other address as may be designated by notice in writing from
Sublandlord to Subtenant, without prior demand therefor and without any
deduction or setoff whatsoever. Base Rent shall be paid in equal monthly
installments in advance on the first day of each month of the Term, commencing
on the Rent Commencement Date, subject, however to the abatement of Base Rent
as set forth in Section 1(J).  Subtenant
shall pay the first installment of Base Rent on the first day of the thirteenth
(13th) month after the Rent Commencement Date, which shall be in the amount of
one-half (1/2) of one month’s Base Rent. 
Base Rent shall be pro-rated for partial months at the beginning and end
of the Term. All charges, costs and sums required to be paid by Subtenant to
Sublandlord under this Sublease in addition to Base Rent shall be deemed
“Additional Rent,” and Base Rent and Additional Rent shall hereinafter
collectively be referred to as “Rent.” Subtenant’s covenant to pay Rent shall
be independent of every other covenant in this Sublease. If Rent is not paid
when due, Subtenant shall pay, relative to the delinquent payment, an amount
equal to the sum which would be payable by Sublandlord to Prime Landlord for an
equivalent default under the Prime Lease.


 


8.  Additional Rent.


 


A.  If and to the extent that
Sublandlord is obligated to pay additional rent under the Prime Lease, whether
such additional rent is to reimburse Prime Landlord for taxes, operating
expenses, common area maintenance charges or other expenses incurred by the
Prime Landlord in connection with the Property, commencing on the Rent
Commencement Date, Subtenant shall pay to Sublandlord, the percentage of such
additional rent (to the extent such additional rent is attributable to events
occurring during the term of this Sublease) which is set forth in Section 1(M)
as the Sublease Share. Such payment shall be due from Subtenant to Sublandlord
no fewer than five (5) days prior to the date upon which Sublandlord’s payment
of such additional rent is due to the Prime Landlord, provided that Subtenant
shall have been billed therefor at least ten (10) days prior to such due date
(which bill shall be accompanied by a copy of Prime Landlord’s bill and other
material furnished to Sublandlord in connection therewith).  Notwithstanding the foregoing, Subtenant
shall make estimated monthly payments of Operating Cost Share Rent, as such
term is defined in, and in the manner set


 


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forth in, Section 2 of the Prime Lease, to Sublandlord on the first day
of each month together with the payment of Base Rent.


 


B. The Sublease Share provided for in Section 1(M) is calculated by
dividing the rentable area of the Premises by the rentable area of the
Building.  In the event the rentable
area of the Premises or the area of the Building shall be changed during the
Term, then the Sublease Share shall be recalculated.


 


9.  Subtenant’s Obligations.
Subtenant shall be responsible, and shall pay, for the following:


 


A. The Sublease Share of all utility consumption costs, including
without limitation, electric and other charges incurred in connection with
lighting, and providing electrical power to the Premises. Subtenant shall hold
Sublandlord harmless from all costs or expenses Sublandlord may incur from
Subtenant’s failure to pay utility bills or to perform any of its obligations
with respect to the purchase of utilities. 
Subtenant shall not be required to install, or pay for the installation
of, a separate meter or submeter.


 


B. All maintenance, repairs and replacements as to the Premises and its
equipment, to the extent Sublandlord is obligated to perform the same under the
Prime Lease.


 


10. Quiet Enjoyment. Sublandlord represents that it has full
power and authority to enter into this Sublease, subject to the consent of the
Prime Landlord, if required under the Prime Lease. So long as Subtenant is not
in default in the performance of its covenants and agreements in this Sublease,
Subtenant’s quiet and peaceable enjoyment of the Premises shall not be
disturbed or interfered with by Sublandlord, or by any person claiming by,
through, or under Sublandlord. 
Sublandlord hereby represents and warrants to Subtenant, that, to the
best of Sublandlord’s knowledge, neither Sublandlord nor Prime Landlord is in
default of its respective obligations under the Prime Lease.


 


11. Subtenant’s Insurance. Subtenant shall procure and maintain,
at its own cost and expense, such liability insurance as is required to be
carried by Sublandlord under the Prime Lease, naming Sublandlord, as well as
Prime Landlord, in the manner required therein, and such property insurance as
is required to be carried by Sublandlord under the Prime Lease to the extent
such property insurance pertains to the Premises. If the Prime Lease requires
Sublandlord to insure leasehold improvements or alterations, then Subtenant
shall insure such leasehold improvements that are located in the Premises, as
well as alterations in the Premises made by Subtenant. Subtenant shall furnish
to Sublandlord a certificate of Subtenant’s insurance required hereunder not
later than ten (10) days prior to Subtenant’s taking possession of the
Premises. Each party hereby waives claims against the other for property damage
provided such waiver shall not invalidate the waiving party’s property
insurance; each party shall attempt to obtain from its insurance carrier a
waiver of its right of subrogation. Subtenant hereby waives only those claims
against Prime Landlord and Sublandlord for business interruption or property
damage to the Premises or its contents, but solely to the extent that
Sublandlord is required to waive such claims against Prime Landlord under
Paragraph 8 of the Prime Lease. Sublandlord hereby waives such claims against
Subtenant for loss of rents or damage to property sustained by Sublandlord to
the same degree that such claims are waived by Prime Landlord under Paragraph 8
of the Prime Lease.  Subject to the
terms herein, Subtenant agrees to use reasonable efforts in


 


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good faith to obtain, for the benefit of Prime Landlord and
Sublandlord, such waivers of subrogation rights from its insurer as are
required of Sublandlord under the Prime Lease. Sublandlord agrees to use
reasonable efforts in good faith to obtain from Prime Landlord a waiver of
claims for insurable property damage losses and an agreement from Prime
Landlord to obtain a waiver of subrogation rights in Prime Landlord’s property
insurance, if and to the extent that Prime Landlord waives such claims against
Sublandlord under the Prime Lease or is required under the Prime Lease to
obtain such waiver of subrogation rights.


 


12. Assignment Or Subletting.


 


A.  Subtenant shall not without
the prior written consent of Sublandlord (i) assign, convey or mortgage this
Sublease or any interest under it; (ii) allow any transfer thereof or any lien
upon Subtenant’s interest by operation of law; (iii) further sublet the
Premises or any part thereof; or (iv) permit the occupancy of the Premises or
any part thereof by anyone other than Subtenant. Sublandlord’s consent to an
assignment of this Sublease or a further sublease of the Premises shall not be
unreasonably withheld, and if Sublandlord consents thereto, Sublandlord shall
use reasonable efforts to obtain the consent of Prime Landlord if such consent
is required to be obtained under the Prime Lease. Any reasonable cost of
obtaining Prime Landlord’s consent shall be borne by Subtenant.


 


B. No permitted assignment shall be effective and no permitted sublease
shall commence unless and until any default by Subtenant hereunder shall have
been cured. No permitted assignment or subletting shall relieve Subtenant from
Subtenant’s obligations and agreements hereunder and Subtenant shall continue
to be liable as a principal and not as a guarantor or surety to the same extent
as though no assignment or subletting had been made.


 


C.  Notwithstanding anything in
Section 12(A) or Section 12(B) to the contrary, Subtenant may assign or
sublease part or all of the Premises without Sublandlord’s consent to: (i) any
corporation or partnership that controls, is controlled by, or is under common
control with, Subtenant; or (ii) any corporation resulting from the merger or
consolidation with Subtenant or to any entity that acquires all of Subtenant’s
assets as a going concern of the business that is being conducted on the
Premises, as long as the assignee or sublessee is a bona fide entity and
assumes all of the obligations of Subtenant under this Sublease.  Sublandlord’s consent also shall not be
required in connection with a public offering of stock by Subtenant.


 


13. Rules. Subtenant agrees to comply with all rules and
regulations that Prime Landlord has made or may hereafter from time to time
make for the building located at 4570 Executive Drive, San Diego,
California  (the “Building”), including
without limitation the Rules and Regulations attached to the Prime Lease as
Exhibit B. Sublandlord shall not be liable in any way for damage caused by the
non-observance by any of the other tenants of such similar covenants in their
leases or of such rules and regulations.


 


14. Repairs and Compliance. Subtenant shall promptly pay for the
repairs set forth in Section 9(B) hereof and shall, at Subtenant’s own expense,
comply with all laws and ordinances, and all orders, rules and regulations of
all governmental authorities and of all insurance bodies and their fire
prevention engineers at any time in force, applicable to the Premises or to
Subtenant’s particular use or manner of use thereof.  Notwithstanding the foregoing, Subtenant shall not be


 


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responsible for compliance with the Americans With Disabilities Act of
1990, as amended (“ADA”) except to the extent that those requirements are based
upon the Subtenant’s occupancy, alteration, improvement or use of the Premises.


 


15. Fire or Casualty or Eminent Domain. In the event Sublandlord
is entitled, under the Prime Lease, to an abatement of rent as a result of a
fire or other casualty or as a result of a taking under the power of eminent
domain, then Subtenant shall be entitled to an equivalent rent abatement
hereunder. If the Prime Lease imposes on Sublandlord the obligation to repair
or restore leasehold improvements or alterations, Subtenant shall be
responsible for repair or restoration of leasehold improvements or alterations;
Subtenant shall make any insurance proceeds resulting from the loss which
Sublandlord is obligated to repair or restore available to Sublandlord and shall
permit Sublandlord to enter the Premises to perform the same, subject to such
conditions as Subtenant may reasonably impose.


 


16. Alterations.


 


A. 
Subtenant shall not make any alterations in or additions to the Premises
(“Alterations”) if to do so would constitute a default under the Prime Lease.
If Subtenant’s proposed Alterations would not constitute a default under the
Prime Lease, Sublandlord’s prior written consent thereto shall nonetheless be
required, but Sublandlord’s consent to such Alterations shall not be
unreasonably withheld, and if Sublandlord consents thereto, Sublandlord shall
use reasonable efforts to obtain the consent of Prime Landlord, if such consent
is required under the Prime Lease. If Alterations by Subtenant are permitted or
consented to as aforesaid, Subtenant shall comply with all of the covenants of
Sublandlord contained in the Prime Lease pertaining to the performance of such
Alterations. In addition, Subtenant shall indemnify, defend and hold harmless
Sublandlord against liability, loss, cost, damage, liens and expense imposed on
Sublandlord arising out of the performance of Alterations by Subtenant.


 


B. 
Notwithstanding anything in this Section 16 to the contrary, if (i)
either Sublandlord or Prime Landlord does not approve or reject Subtenant’s
plans and specifications for Tenant’s Work within thirty (30) days after
submittal thereof to such parties, or (ii) Subtenant is unable to secure all
required licenses, permits and approvals from applicable governmental
authorities necessary for it to perform Tenant’s Work and operate its business
in the Premises (collectively, the “Required Approvals”) within one (1) year
from the date Subtenant submits complete applications for each of the Required
Approvals and despite Subtenant’s good faith and diligent efforts to secure
each of the Required Approvals, then Subtenant may terminate this Sublease upon
written notice to Sublandlord.


 


C. 
Sublandlord hereby grants to Subtenant all of Sublandlord’s rights under
Section 11(B) of the Prime Lease pertaining to signage, subject to the terms of
the Prime Lease and the consent of Prime Landlord.


 


D. 
Sublandlord hereby grants to Subtenant all of Sublandlord’s rights under
the Prime Lease, if any, pertaining to roof access and cable, subject to the
terms of the Prime Lease and the consent of Prime Landlord.


 


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17. Surrender. Upon the expiration of this Sublease, or upon the
termination of the Sublease or of the Subtenant’s right to possession of the
Premises, Subtenant will at once surrender and deliver up the Premises,
together with all improvements thereon, to Sublandlord in good condition and
repair, reasonable wear and tear excepted; conditions existing because of
Subtenant’s failure to perform maintenance, repairs or replacements as required
of Subtenant under this Sublease shall not be deemed “reasonable wear and
tear.” Said improvements shall include all plumbing, lighting, electrical,
heating, cooling and ventilating fixtures and equipment in the Premises.  Any of Subtenant’s removable trade fixtures,
business equipment, inventory, furniture, and other articles of personal
property installed in or on the Premises by Subtenant at its expense, shall
remain the property to Subtenant. Subtenant shall surrender to Sublandlord all
keys to the Premises and make known to Sublandlord the combination of all
combination locks that Subtenant is permitted to leave on the Premises. All
Alterations in or upon the Premises made by Subtenant shall become a part of
and shall remain upon the Premises upon such termination without compensation,
allowance or credit to Subtenant; provided, however, that, to the extent Prime
Landlord notifies Subtenant in writing, at the time Subtenant requests Prime
Landlord’s consent to an Alteration, that Prime Landlord will require the
removal of such Alteration, Sublandlord shall have the right to require
Subtenant to remove such Alterations made by Subtenant, or any portion thereof
as designated by Prime Landlord in such written notice.  In such event, Subtenant shall restore the
Premises to their condition prior to the making of such Alteration, repairing
any damage occasioned by such removal or restoration. If Prime Landlord
requires removal of any Alteration made by Subtenant, or a portion thereof, and
Subtenant does not make such removal in accordance with this Section,
Sublandlord may remove the same (and repair any damage occasioned thereby), and
dispose thereof, or at its election, deliver the same to any other place of business
of Subtenant, or warehouse the same. Subtenant shall pay the costs of such
removal, repair, delivery and warehousing on demand. As between Sublandlord and
Subtenant, Subtenant shall not be required to remove any Alterations performed
by Sublandlord prior to the Commencement Date or to restore the Premises to
their condition prior to the making of such Alterations. If, however, the term
of the Sublease expires at or about the date of the expiration of the Prime
Lease, and if Sublandlord is required under or pursuant to the terms of the
Prime Lease to remove any Alterations performed prior to the Commencement Date,
Subtenant shall permit Sublandlord to enter the Premises for a period of sixty
(60) days prior to the expiration of the Sublease, subject to such conditions
as Subtenant may reasonably impose, for the purpose of removing its Alterations
and restoring the Premises as required.


 


18. Removal of Subtenant’s Property. Upon the expiration of this
Sublease, Subtenant shall remove Subtenant’s articles of personal property
incident to Subtenant’s business (“Trade Fixtures”); provided, however, that
Subtenant shall repair any injury or damage to the Premises which may result
from such removal, and shall restore the Premises to the same condition as prior
to the installation thereof. If Subtenant does not remove Subtenant’s Trade
Fixtures from the Premises prior to the expiration or earlier termination of
the Term, Sublandlord may, at its option, remove the same (and repair any
damage occasioned thereby and restore the Premises as aforesaid) and dispose
thereof or deliver the same to any other place of business of Subtenant, or
warehouse the same, and Subtenant shall pay the cost of such removal, repair,
restoration, delivery or warehousing to Sublandlord on demand, or Sublandlord
may treat said Trade Fixtures as having been conveyed to Sublandlord with this
Lease as a Bill of Sale, without further payment or credit by Sublandlord to
Subtenant.


 


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19. Holding Over. Subtenant shall have no right to occupy the
Premises or any portion thereof after the expiration of this Sublease or after
termination of this Sublease or of Subtenant’s right to possession in
consequence of an Event of Default hereunder. In the event Subtenant or any
party claiming by, through or under Subtenant holds over, Sublandlord may
exercise any and all remedies available to it at law or in equity to recover
possession of the Premises, and to recover damages, including without
limitation, damages payable by Sublandlord to Prime Landlord by reason of such
holdover. For each and every month or partial month that Subtenant or any party
claiming by, through or under Subtenant remains in occupancy of all or any
portion of the Premises after the expiration of this Sublease or after
termination of this Sublease or Subtenant’s right to possession, Subtenant
shall pay, as minimum damages and not as a penalty, monthly rental at a rate
equal to double the rate of Base Rent and Additional Rent payable by Subtenant
hereunder immediately prior to the expiration or other termination of this
Sublease or of Subtenant’s right to possession. The acceptance by Sublandlord
of any lesser sum shall be construed as payment on account and not in
satisfaction of damages for such holding over.


 


20. Encumbering Title. Subtenant shall not do any act which
shall in any way encumber the title of Prime Landlord in and to the Building,
nor shall the interest or estate of Prime Landlord or Sublandlord be in any way
subject to any claim by way of lien or encumbrance, whether by operation of law
by virtue of any express or implied contract by Subtenant, or by reason of any
other act or omission of Subtenant. Any claim to, or lien upon, the Premises or
the Building arising from any act or omission of Subtenant shall accrue only
against the subleasehold estate of Subtenant and shall be subject and
subordinate to the paramount title and rights of Prime Landlord in and to the
Building and the interest of Sublandlord in the premises leased pursuant to the
Prime Lease. Without limiting the generality of the foregoing, Subtenant shall
not permit the Premises or the Building to become subject to any construction,
mechanics’, laborers’ or materialmen’s lien on account of labor or material furnished
to Subtenant or claimed to have been furnished to Subtenant in connection with
work of any character performed or claimed to have been performed on the
Premises by, or at the direction or sufferance of, Subtenant, provided,
however, that if so permitted under the Prime Lease, Subtenant shall have the
right to contest in good faith and with reasonable diligence, the validity of
any such lien or claimed lien if Subtenant shall give to Prime Landlord and
Sublandlord such security as may be deemed satisfactory to each of them to
assure payment thereof and to prevent any sale, foreclosure, or forfeiture of
the Premises or the Building by reason of non-payment thereof, provided
further, however, that on final determination of the lien or claim of lien,
Subtenant shall immediately pay any judgment rendered, with all proper costs
and charges, and shall have the lien released and any judgment satisfied.


 


21. Indemnity.


 


A.  Subtenant agrees to
indemnify Sublandlord and its directors, officers, employees and affiliates
(collectively, the “Sublandlord Indemnified Parties”) and hold the Sublandlord
Indemnified Parties harmless from any and all losses, damages, liabilities and
expenses which the Sublandlord Indemnified Parties may incur, or for which the
Sublandlord Indemnified Parties may be liable to Prime Landlord or any other
party, arising from the acts or omissions of Subtenant which are the subject
matter of any indemnity or hold harmless of Sublandlord to Prime Landlord or
any other party under the Prime Lease.


 


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B.  Sublandlord agrees to
indemnify Subtenant and its directors, officers, employees and affiliates
(collectively, the “Subtenant Indemnified Parties”) and hold the Subtenant
Indemnified Parties harmless from any and all losses, damages, liabilities and
expenses which the Subtenant Indemnified Parties may incur, arising from any
breach or default by Sublandlord of the Prime Lease or this Sublease, except to
the extent caused by the willful misconduct or negligence of Subtenant, which
shall include Subtenant’s failure to pay all sums due under this Sublease as
and when due.  In the event any action
or proceeding shall be brought against Subtenant by reason of any such claim,
Sublandlord shall defend the same at Sublandlord’s expense by counsel
reasonably satisfactory to Subtenant.


 


22. Sublandlord’s Reserved Rights. Sublandlord reserves the
right, on not less than five (5) days’ prior notice, except in the event of an
emergency, to inspect the Premises, or to exhibit the Premises to persons
having a legitimate interest at any time during the Term, during Subtenant’s
customary hours of operation.


 


23. Defaults. Subtenant agrees that any one or more of the
following events shall be considered Events of Default as said term is used
herein:


 


A. Subtenant shall be adjudged an involuntary bankrupt, or a decree or
order approving, as properly filed, a petition or answer filed against
Subtenant asking reorganization of Subtenant under the Federal bankruptcy laws
as now or hereafter amended, or under the laws of any State, shall be entered,
and any such decree or judgment or order shall not have been vacated or stayed
or set aside within sixty (60) days from the date of the entry or granting
thereof; or


 


B. Subtenant shall file, or admit the jurisdiction of the court and the
material allegations contained in, any petition in bankruptcy, or any petition
pursuant or purporting to be pursuant to the Federal bankruptcy laws now or
hereafter amended, or under the laws of any State, or Subtenant shall institute
any proceedings for relief of Subtenant under any bankruptcy or insolvency laws
or any laws relating to the relief of debtors, readjustment of indebtedness,
reorganization, arrangements, composition or extension; or


 


C. Subtenant shall make any assignment for the benefit of creditors or
shall apply for or consent to the appointment of a receiver for Subtenant or
any of the property of Subtenant; or


 


D. Subtenant shall admit in writing its inability to pay its debts as
they become due; or


 


E. The Premises are levied on by any revenue officer or similar
officer; or


 


F. A decree or order appointing a receiver of the property of Subtenant
shall be made and such decree or order shall not have been vacated, stayed or
set aside within sixty (60) days from the date of entry or granting thereof; or


 


G. Subtenant shall abandon the Premises during the Term hereof; or


 


H. Subtenant shall default in any payment of Rent required to be made
by Subtenant hereunder when due as herein provided and such default shall
continue for seven (7) days after the date when due; or


 


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I. Subtenant shall default in securing insurance or in providing
evidence of insurance as set forth in Section 11 of this Sublease or shall
default with respect to lien claims as set forth in Section 20 of this Sublease
and either such default shall continue for five (5) days after notice thereof
in writing to Subtenant; or


 


J. Subtenant shall, by its act or omission to act, cause a default
under the Prime Lease and such default shall not be cured within the time, if
any, permitted for such cure under the Prime Lease; or


 


K. Subtenant shall default in any of the other covenants and agreements
herein contained to be kept, observed and performed by Subtenant, and such
default shall continue for thirty (30) days after notice thereof in writing to
Subtenant.


 


24. Remedies. Upon the occurrence of any one or more Events of
Default, Sublandlord may exercise any remedy against Subtenant that Prime
Landlord may exercise for default by Sublandlord under the Prime Lease.


 


25. Security Deposit. To secure the full and faithful
performance by Subtenant of all the covenants, conditions and agreements in
this Sublease set forth and contained on the part of Subtenant to be fulfilled,
kept, observed and performed including, but not by way of limitation, such
covenants and agreements in this Sublease which become applicable upon the
termination of the same by re-entry or otherwise, Subtenant has deposited with
Sublandlord the Security Deposit as specified in Section 1(O) on the
understanding that: (a) the Security Deposit or any portion thereof not
previously applied, or from time to time, such one or more portions thereof,
may be applied to the curing of any default that may then exist, without
prejudice to any other remedy or remedies which Sublandlord may have on account
thereof, and upon such application Subtenant shall pay Sublandlord on demand
the amount so applied which shall be added to the Security Deposit so the same
may be restored to its original amount; (b) should the Prime Lease be assigned
by Sublandlord, then, provided such assignee agrees to be bound by the terms
and conditions of this Sublease, including without limitation the obligation to
return the Security Deposit to Subtenant as required herein, the Security
Deposit or any portion thereof not previously applied may be turned over to
Sublandlord’s assignee and if the same be turned over as aforesaid, Subtenant
hereby releases Sublandlord from any and all liability with respect to the
Security Deposit and/or its application or return; (c) if permitted by law,
Sublandlord or its successor shall not be obligated to hold the Security
Deposit as a separate fund, but on the contrary may commingle the same with its
other funds; (d) if Subtenant shall faithfully fulfill, keep, perform and
observe all of the covenants, conditions and agreements in this Sublease set
forth and contained on the part of Subtenant to be fulfilled, kept, performed
and observed, the sum deposited or the portion thereof not previously applied,
shall be returned to Subtenant without interest no later than thirty (30) days
after the expiration of the Term of this Sublease, provided Subtenant has
vacated the Premises and surrendered possession thereof to Sublandlord at the
expiration of the Term as provided herein; (e) in the event that Sublandlord
terminates this Sublease or Subtenant’s right to possession by reason of an
Event of Default by Subtenant, Sublandlord may apply the Security Deposit
against damages suffered to the date of such termination and/or may retain the
Security Deposit to apply against such damages as may be suffered or shall
accrue thereafter by reason of Subtenant’s default; (f) in the event any bankruptcy,
insolvency, reorganization or other creditor-debtor proceedings shall be
instituted by


 


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or against Subtenant, or its successors or assigns, the Security
Deposit shall be deemed to be applied first to the payment of any Rent due
Sublandlord for all periods prior to the institution of such proceedings, and
the balance, if any, of the Security Deposit may be retained or paid to
Sublandlord in partial liquidation of Sublandlord’s damages.


 


26. Notices and Consents. All notices, demands, requests,
consents or approvals which may or are required to be given by either party to
the other shall be in writing and shall be deemed given when received or
refused if sent by United States registered or certified mail, postage prepaid,
return receipt requested or if sent by overnight commercial courier service (a)
if to Subtenant, addressed to Subtenant at the address specified in Section
1(B) or at such other place as Subtenant may from time to time designate by
notice in writing to Sublandlord in accordance with this Section 26 or (b) if
for Sublandlord, addressed to Sublandlord at the address specified in Section
1(C) or at such other place as Sublandlord may from time to time designate by
notice in writing to Subtenant in accordance with this Section 26. Each party
agrees promptly to deliver a copy of each notice, demand, request, consent or
approval from such party to Prime Landlord and promptly to deliver to the other
party a copy of any notice, demand, request, consent or approval received from
Prime Landlord. Such copies shall be delivered by overnight commercial courier.


 


27. Provisions Regarding Prime Lease. This Sublease and all the
rights of the parties hereunder are subject and subordinate to the Prime Lease.
Each party agrees that it will not, by its act or omission, cause a default
under the Prime Lease. In furtherance of the foregoing, the parties hereby
confirm, each to the other, that it is not practical in this Sublease agreement
to enumerate all of the rights and obligations of the various parties under the
Prime Lease and specifically to allocate those rights and obligations in this
Sublease. Accordingly, in order to afford to Subtenant the benefits of this
Sublease and of those provisions of the Prime Lease which by their nature are
intended to benefit the party in possession of the Premises, and in order to
protect Sublandlord against a default by Subtenant which might cause a default
or event of default by Sublandlord under the Prime Lease:


 


A. Provided Subtenant shall timely pay all Rent when and as due under
this Sublease, Sublandlord shall pay, when and as due, all base rent,
additional rent and other charges payable by Sublandlord to Prime Landlord
under the Prime Lease;


 


B. Except as otherwise expressly provided herein, Sublandlord shall
perform its covenants and obligations under the Prime Lease which do not
require for their performance possession of the Premises and which are not
otherwise to be performed hereunder by Subtenant on behalf of Sublandlord. For
example, Sublandlord shall at all times keep in full force and effect all
insurance required of Sublandlord as tenant under the Prime Lease.


 


C. Except as otherwise expressly provided herein, Subtenant shall
perform all affirmative covenants and shall refrain from performing any act
which is prohibited by the negative covenants of the Prime Lease, where the
obligation to perform or refrain from performing is by its nature imposed upon
the party in possession of the Premises. If practicable, Subtenant shall
perform affirmative covenants that are also covenants of Sublandlord under the
Prime Lease within ten (10) days after delivery by Sublandlord of written
notice thereof, unless the Prime Lease or this Sublease specifies the date when
performance of such covenant is


 


11

















 


required under the Prime Lease. Sublandlord shall have the right to
enter the Premises to cure any default by Subtenant under this Section after
giving Subtenant at least ten (10) days’ prior written notice of such default
and Sublandlord’s intent to cure.


 


D. Sublandlord shall not agree to an amendment to the Prime Lease which
might have an adverse effect on Subtenant’s occupancy of the Premises or its
use of the Premises for their intended purpose, unless Sublandlord shall first
obtain Subtenant’s prior written approval thereof.


 


E. Sublandlord hereby grants to Subtenant the right to receive all of
the services and benefits with respect to the Premises that are to be provided
by Prime Landlord under the Prime Lease. Sublandlord shall have no duty to
perform any obligations of Prime Landlord that Prime Landlord has agreed to
provide under the Prime Lease or that are, by their nature, the obligation of
an owner or manager of real property. For example, Sublandlord shall not be
required to provide the services or repairs that the Prime Landlord is required
to provide under the Prime Lease.


 


F. In the event and solely to the extent that Sublandlord is entitled
to any rent abatement or credit under the Prime Lease, Subtenant shall be
entitled to an equivalent abatement or credit hereunder.


 


28. Additional Services. Sublandlord shall cooperate with
Subtenant to cause Prime Landlord to provide services required by Subtenant in
addition to those otherwise required to be provided by Prime Landlord under the
Prime Lease. Subtenant shall pay Prime Landlord’s charge for such services
promptly after having been billed therefor by Prime Landlord or by Sublandlord.
If at any time a charge for such additional services is attributable to the use
of such services both by Sublandlord and by Subtenant, the cost thereof shall
be equitably divided between Sublandlord and Subtenant.


 


29. Prime Landlord’s Consent. This Sublease and the obligations
of the parties hereunder are expressly conditioned upon Sublandlord’s obtaining
prior written consent hereto by Prime Landlord, if such written consent is
required under the Prime Lease. Subtenant shall promptly deliver to Sublandlord
any information reasonably requested by Prime Landlord (in connection with
Prime Landlord’s consent to this Sublease) with respect to the nature and
operation of Subtenant’s business and/or the financial condition of Subtenant.
Sublandlord and Subtenant hereby agree, for the benefit of Prime Landlord, that
this Sublease and Prime Landlord’s consent hereto shall not (a) create privity
of contract between Prime Landlord and Subtenant; (b) be deemed to have amended
the Prime Lease in any regard (unless Prime Landlord shall have expressly
agreed in writing to such amendment); or (c) be construed as a waiver of Prime
Landlord’s right to consent to any assignment of the Prime Lease by Sublandlord
or any further subletting of premises leased pursuant to the Prime Lease, or as
a waiver of Prime Landlord’s right to consent to any assignment by Subtenant of
this Sublease or any sub-subletting of the Premises or any part thereof. Prime
Landlord’s consent shall, however, be deemed to evidence Prime Landlord’s
agreement that Subtenant may use the Premises for the purpose set forth in
Section 1(R) and that Subtenant shall be entitled to any waiver of claims and
of the right of subrogation for damage to Prime Landlord’s property if and to
the extent that the Prime Lease provides such waivers for the benefit of
Sublandlord. If Prime Landlord fails to consent to this


 


12

















 


Sublease within thirty (30) days after the execution and delivery of
this Sublease, either party shall have the right to terminate this Sublease by
giving written notice thereof to the other at any time thereafter, but before
Prime Landlord grants such consent.


 


30. Brokerage. Each party warrants to the other that it has had
no dealings with any broker or agent in connection with this Sublease other
than the Broker as specified in Section 1(Q), whose commission shall be paid by
Sublandlord pursuant to a separate agreement between Sublandlord and Broker,
and covenants to pay, hold harmless and indemnify the other party from and
against any and all costs (including reasonable attorneys’ fees), expense or
liability for any compensation, commissions and charges claimed by any other
broker or other agent with respect to this Sublease or the negotiation thereof
on behalf of such party.


 


31. Force Majeure. Neither party shall be deemed in default with
respect to any of the terms, covenants and conditions of this Sublease on such
party’s part to be performed, with the exception of Subtenant’s obligation to
pay Rent, if such party’s failure to timely perform same is due in whole or in
part to any strike, lockout, labor trouble (whether legal or illegal), civil
disorder, failure of power, restrictive governmental laws and regulations,
riots, insurrections, war, terrorism, shortages, accidents, casualties, acts of
God, acts caused directly by the other party or the other party’s agents,
employees and invitees or any other cause beyond the reasonable control of the
party failing to perform. This Section shall not be applicable, however, if
Sublandlord’s failure timely to perform creates a default by Sublandlord under
the Prime Lease.


 


32.  Estoppel Certificates
and Non-Disturbance Agreement. 
Within ten (10) days following any written request either party may make
to the other from time to time, Sublandlord and Subtenant without any charge
therefor, shall execute, acknowledge, and deliver a statement certifying to the
other the following: (a) the Commencement Date of this Sublease; (b) the fact
that this Sublease is unmodified and in full force and effect or, if there have
been modifications hereto, that this Sublease is in full force and effect, as
modified, and stating the date and nature of such modifications; (c) the date
to which the Rent and other sums payable under this Sublease have been paid;
(d) the fact that there are no current defaults under this Sublease by either
Sublandlord or Subtenant except as specified in the statement; and (e) such
other matters as may be reasonably requested by Sublandlord or Subtenant.  Sublandlord shall also obtain from Prime
Landlord and Landlord’s lender, if any, a subordination, non-disturbance and
attornment agreement with Subtenant in substantially the form attached  hereto.


 


33.                                 Hazardous
Materials.


 


A.                 Sublandlord hereby represents and
warrants to Subtenant that, during its occupancy of the Premises, Sublandlord
conducted all of its activities and operations at the Premises in compliance
with all applicable federal, state and local laws, regulations, statutes and
ordinances pertaining to the protection of land, water, air, health, safety or
the environment (collectively, “Environmental Laws”) and that any handling,
transportation, storage, treatment or use of any hazardous materials or
substances, as such terms are defined by the Environmental Laws (“Hazardous Materials”)
that has occurred in the Premises during Sublandlord’s occupancy thereof was in
compliance with all Environmental Laws. Sublandlord hereby covenants and
agrees, at its sole cost and expense, to indemnify, defend,


 


13

















 


protect, save and hold harmless the Subtenant
Indemnified Parties from and against any and all claims, judgments, damages,
losses, penalties, fines, liabilities, encumbrances, liens, costs and expenses
of investigation and defense of any claim, whether or not such claim is
ultimately defeated, and of any good faith settlement, of whatever kind or
nature, contingent or otherwise, matured or unmatured, foreseeable or
unforeseeable, including attorneys’ fees and disbursements and consultants’
fees (including any such fees and disbursements incurred in connection with the
enforcement by Subtenant of its rights under this Section 33(A), any of which
are incurred at any time, arising from or out of or in any way relating to any
contamination, or threatened release of any Hazardous Materials, on, in, under,
affecting or migrating or threatening to migrate to or from all or any portion
of the Premises to the extent such Hazardous Materials are present as the
result of the intentional acts or negligence of Sublandlord, its officers,
employees or agents, and any violation of, or noncompliance with, or alleged
violation of, or noncompliance with, any Environmental Laws, due to any act or
omission of Sublandlord, its employees, invitees, agents or contractors, but in
every case, Sublandlord’s responsibilities herein shall relate only to any such
acts or failure to act after the Commencement Date of the Prime Lease and  prior to the Commencement Date of this
Sublease.  Notwithstanding anything in
this Section 33(A) to the contrary, Sublandlord may not settle or compromise
any claim arising from or out of or in any way relating to the matters
contemplated by this Section 33(A) without the prior written consent of the
Subtenant (such consent not to be unreasonably withheld). This paragraph shall
survive the expiration or earlier termination of this Sublease.


 


B.  Sublandlord, at its sole
cost and expense, has obtained a Phase I environmental site assessment of the
Premises and a copy of the results of that assessment  have been delivered to Subtenant prior to the execution of this
Sublease.  Prior to the Commencement
Date, Sublandlord, at its sole cost and expense, shall conduct a soils test of
the area adjacent to the chemical waste shed and if such test indicates any
contamination, Sublandlord shall remediate and remove any Hazardous Materials
which are present.  If Sublandlord fails
to complete such remediation by the Rent Commencement Date, Subtenant shall
receive an abatement of Base Rent for each day after the Rent Commencement Date
until Sublandlord completes such remediation.


 


C.  Subtenant hereby covenants
and agrees (i) to cause all of its activities at the Premises during the Term
to be conducted in compliance with all Environmental Laws; (ii) to obtain all
permits and file all business plans necessary for the continued operation and
maintenance of the emergency generator located at the Premises; and (iii) to
provide Sublandlord with copies of all: 
(a) correspondence, notices of violation, summons, orders, complaints or
other documents received by the Subtenant pertaining to compliance with any
Environmental Laws; and (b) licenses, certificates and permits required by the
Environmental Laws.


 


D.  Subtenant hereby covenants
and agrees, at its sole cost and expense, to indemnify, defend, protect, save
and hold harmless the Sublandlord Indemnified Parties from and against any and
all claims, judgments, damages, losses, penalties, fines, liabilities,
encumbrances, liens, costs and expenses of investigation and defense of any
claim, whether or not such claim is ultimately defeated, and of any good faith
settlement, of whatever kind or nature, contingent or otherwise, matured or
unmatured, foreseeable or unforeseeable, including attorneys’ fees and
disbursements and consultants’ fees (including any such fees and disbursements
incurred


 


14

















 


in connection with the enforcement by Sublandlord of its rights under
this Section 33(D), any of which are incurred at any time, arising from or out
of or in any way relating to any contamination, or threatened release of any
Hazardous Materials, on, in, under, affecting or migrating or threatening to
migrate to or from all or any portion of the Premises to the extent such Hazardous
Materials are present as the result of the intentional acts or negligence of
Subtenant, its officers, employees or agents, and any violation of, or
noncompliance with, or alleged violation of, or noncompliance with, any
Environmental Laws, due to any act or omission of Subtenant, its employees,
invitees, agents or contractors. 
Notwithstanding anything in this Section 33(D) to the contrary,
Subtenant may not settle or compromise any claim arising from or out of or in
any way relating to the matters contemplated by this Section 33(D) without the
prior written consent of the Sublandlord (such consent not to be unreasonably
withheld).  This paragraph shall survive
the expiration or earlier termination of the Term of this Sublease.


 


D.  The parties acknowledge and
agree that the Premises were previously occupied by Sublandlord and
Sublandlord’s predecessors and successors, and as a result thereof, there are
residuals of chemicals existing in the Premises that would be difficult, if not
impossible, to remove; accordingly, Sublandlord shall not be required to remove
such residuals prior to the Commencement Date provided Subtenant shall not be
required to remove any residuals which resulted from either party’s use or
occupancy of the Premises either before or after the expiration or termination
of this Sublease.


 


34. Additional Provisions.


 


A.                 Counterparts.  This Sublease may be executed in
counterparts, each of which shall be deemed to be an original and all of which,
when taken together, shall constitute one and the same agreement.


 


B.                   Entire
Agreement.  This Sublease
constitutes the entire agreement between the parties hereto with respect to the
subject matter hereof and supersedes all prior agreements, understandings and
negotiations of the parties with respect thereto.


 


C.                   Effectiveness.  This Sublease shall become effective on and
only on its execution and delivery by each party hereto.


 


D.                  Amendment.  This Sublease may not be altered, amended,
changed, terminated, modified or supplemented in any respect, unless the same
shall be in writing and signed by each party hereto.


 


E.                    Severability.  No determination by any court that any
provision hereof is invalid or unenforceable in any instance shall affect the
validity or enforceability of any other provision hereof, or such provision in
any circumstance not controlled by such determination.


 


F.                    Successors
and Assigns.  This Sublease shall be
binding on and shall inure to the benefit of the parties hereto and their
respective successors and assigns.


 


15

















 


G.                   Headings.  The headings of the Sections of this
Sublease are included solely for convenience of reference and are not intended
to govern, limit or aid in the construction of any of the terms or provisions
hereof.


 


16

















 


35. Parking.  Sublandlord
hereby grants to Subtenant all of Sublandlord’s rights under Section 4(G) of
the Prime Lease pertaining to parking, subject to the terms of the Prime Lease.


 


IN WITNESS WHEREOF, the parties have executed this Sublease the day and
year first above written.


 


	
  WITNESS:

  	
  SUBLANDLORD:

  
	
   

  	
   

  
	
   

  	
  BRISTOL-MYERS SQUIBB COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  SUBTENANT:

  
	
   

  	
   

  
	
   

  	
  AMYLIN PHARMACEUTICALS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


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