Exhibit 10.1
SUBLEASE
THIS SUBLEASE (this "Sublease") is made and entered into as of the 12th day of
October, 2004, by and between GATEWAY, INC., a Delaware corporation (hereinafter
called "Sublandlord"), and NUVASIVE, INC., a Delaware corporation (hereinafter
called "Subtenant").
W I T N E S S E T H
WHEREAS, by that certain Amended and Restated Lease dated as of April 15,1999
(the "Original Lease") as amended by that certain First Amendment to Amended and
Restated Lease Agreement dated as of April 17, 2000 (the "First Amendment");
that certain Second Amendment to Amended and Restated Lease dated concurrently
herewith (the "Second Amendment") and with the Original Lease, the First
Amendment and the Second Amendment are hereinafter collectively referred to as
the "Prime Lease", a copy of which Prime Lease is attached hereto as Exhibit "A"
and by this reference made a part hereof, Carramerica Development, Inc., a
Delaware corporation (hereinafter, together with its successors and assigns,
called "Landlord"), leased to Sublandlord the entirety of a building located at
4545 Towne Centre Court in San Diego, California containing approximately 62,367
gross rentable square feet (the "Premises" and sometimes also referred to herein
as the "Building"); and
WHEREAS, subject to the consent of Landlord, Subtenant desires to sublease from
Sublandlord, and Sublandlord desires to sublease to Subtenant, the entire
Premises, all upon the terms and subject to the conditions and provisions
hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants
and promises contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby mutually acknowledged, Sublandlord
and Subtenant hereby agree as follows:
1.
DEMISE; USE.
SUBLANDLORD HEREBY LEASES
TO SUBTENANT AND SUBTENANT HEREBY LEASES FROM SUBLANDLORD THE PREMISES FOR THE
TERM AND RENTAL AND UPON THE OTHER TERMS AND CONDITIONS HEREINAFTER SET FORTH,
TO BE USED AND OCCUPIED BY SUBTENANT SOLELY FOR MEDICAL AND SCIENTIFIC RESEARCH,
DEVELOPMENT, OPERATING LABORATORY, MACHINE SHOP, STORAGE, WAREHOUSING AND
SHIPPING RELATING THERETO (THE "MEDICAL RESEARCH
USE") AND GENERAL OFFICE USE AND FOR NO OTHER PURPOSE, SUBJECT TO THE
LIMITATIONS SET FORTH IN THE PRIME LEASE AS MAY BE AMENDED AND SUPPLEMENTED
PURSUANT TO THE CONSENT AGREEMENT (AS DEFINED BELOW), INCLUDING, WITHOUT
LIMITATION, THE PROVISIONS OF PARAGRAPH 13 OF THE SCHEDULE OF THE PRIME LEASE AS
WELL AS THE PROVISIONS OF PARAGRAPH 6 OF THE PRIME LEASE.
NOTWITHSTANDING THE
FOREGOING, SUBTENANT SHALL BE PERMITTED TO USE THE PREMISES FOR THE MEDICAL
RESEARCH USE ONLY SO LONG AS SUBTENANT HAS OBTAINED LANDLORD'S CONSENT THERETO
AND COMPLIES WITH ALL OF THE TERMS AND CONDITIONS IMPOSED UPON THE MEDICAL
RESEARCH USE AS SET FORTH BY LANDLORD IN THE PRIME LEASE, THE CONSENT AGREEMENT
AND AS SET FORTH IN THIS SUBLEASE.
2.
TERM.
THE TERM OF THIS SUBLEASE SHALL
COMMENCE (THE "COMMENCEMENT DATE") ON THE LATER OF (I) THE DATE POSSESSION OF
THE PREMISES IS DELIVERED TO SUBTENANT, (II) ONE (1) DAY AFTER THE FULL
EXECUTION AND DELIVERY TO SUBTENANT OF THIS SUBLEASE AND THE CONSENT AGREEMENT
BY EACH