Contract
Exhibit 10.1
THIS SUBLEASE AGREEMENT made
as of the 29th day of December, by and between CLINICAL DATA, INC., a
Delaware corporation (hereinafter called "Sublandlord"), and TRANSGENOMIC, INC., a Delaware
corporation (hereinafter called "Subtenant").
WITNESSETH
THAT:
WHEREAS, Sublandlord, as
tenant, and Science Park Development Corporation, as landlord (“Landlord”), entered into a
lease dated January 12, 2006 (the “Original Lease”), as amended
by (i) a letter agreement between Landlord and Sublandlord dated as of April 12,
2009, and (ii) a Lease Extension Agreement (the “Lease Extension Agreement”)
between Landlord and Sublandlord dated as of November 30, 2010 (hereinafter, as
amended, collectively called the "Lease") of certain premises
containing approximately 37,423 rentable square feet (hereinafter called the
"Leased Premises"), in
Building 0, Xxxxxxxxxx Xxxxxx, Xxxxxxx Xxxx, Xxx Xxxxx, Xxxxxxxxxxx (hereinafter
called the "Building");
and
WHEREAS, Subtenant wishes to
sublease from Sublandlord, and Sublandlord wishes to sublease to Subtenant, a
portion of the Leased Premises containing approximately 23,123 rentable square
feet consisting of a portion of Floor 2 of the Building, and being shown on the
plan attached hereto as Exhibit A
(hereinafter called the "Subleased
Premises");
NOW, THEREFORE, Sublandlord
and Subtenant for good and valuable consideration hereby agree as
follows:
ARTICLE
I
General
Provisions
This Sublease and Subtenant's rights
hereunder are in all respects subject and subordinate to the terms of the Lease,
a copy of which has been delivered to Subtenant, receipt of which is hereby
acknowledged. Any other provision hereof to the contrary
notwithstanding, Subtenant shall have no right to, and Subtenant covenants that
it shall not, violate any covenant of the Lease. Subtenant agrees to
be independently bound by and subject to all of the covenants, agreements,
terms, provisions and conditions set forth in the Lease on the part of
Sublandlord as tenant to be kept and performed (other than rental obligations
and other like terms hereof which would by their nature or by their terms be
applicable only to Sublandlord). Subtenant shall have no rights to
expand or contract the Leased Premises and/or Subleased Premises (except for
Subtenant’s Right of First Offer contained in Article XIII hereof), or to
terminate or extend the Term of the Lease and/or Sublease, nor any other right
contained in the Lease. This Sublease shall terminate upon the
termination of the Lease for any reason. Undefined capitalized terms
used herein without definition shall have the meanings attributed to them under
the Lease.
ARTICLE
II
Demised
Premises
Sublandlord, in consideration of the
rents herein reserved and of the agreements, covenants and conditions herein
contained and expressed on the part of the Subtenant to be kept, performed and
observed, hereby demises and lets unto Subtenant, and Subtenant hereby leases
from Sublandlord, the Subleased Premises. The Subleased Premises are
leased in an "as-is" condition, without any representations or warranties by
Sublandlord regarding the condition or suitability of the Subleased Premises for
Subtenant’s use and without any obligations on the part of Sublandlord to
construct or prepare the Subleased Premises for Subtenant’s use or
occupancy. Subtenant shall have no right to any Tenant allowance or
similar reimbursement under the Lease and any such provision shall not apply to
this Sublease.
ARTICLE
III
Term
1. To
have and to hold the Subleased Premises unto Subtenant for a term commencing on
December 29, 2010 (the “Commencement Date”) and ending
on March 31, 2013, unless sooner terminated as herein provided.
2. Sublandlord
and Subtenant each understand and acknowledge that this Sublease is expressly
conditioned upon (i) Landlord’s written consent to this Sublease, a copy of said
consent being attached hereto as Exhibit B-1, and (ii)
written consent from Connecticut Innovations, Inc., a copy of said consent being
attached hereto as Exhibit
B-2. Notwithstanding the provisions of Section 15.3C of the
Lease, Subtenant shall not be required to assume the obligations and liabilities
of Sublandlord under the Lease.
ARTICLE
IV
Rent
1. Commencing
as of the Commencement Date, Subtenant covenants and agrees to pay directly to
Sublandlord, at such a place as Sublandlord shall from time to time designate in
writing, as rent during the term hereof:
A. Base
Rent as follows:
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Time Period
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Base Rent
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Monthly installment
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Commencement
Date through January 31, 2011
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$ | 254,353.00 | $ | 21,196.00 | ||||
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February
1, 2011 through March 31, 2013
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$ | 485,597.00 | $ | 40,466.00 | ||||
Such Base
Rent shall be payable in equal monthly installments in advance on the first day
of each and every calendar month during the term hereof (and a proportionate
part for any part of a month); provided, however, that
Subtenant shall not be required to pay Sublandlord Base Rent during any period
that Base Rent may be abated pursuant to the provisions of Section 3.1.C of the
Lease.
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B. Subtenant’s
pro rata share (defined below) of all other sums and money payments to be paid
by Sublandlord to Landlord pursuant to the applicable provisions of the Lease
(other than Base Rent and payments pursuant to Section 3.3 of the Lease),
including, without limitation, prior to the effectiveness of the Lease Extension
Agreement, payments on account of any Additional Rent (as defined in the
Original Lease), and following the effectiveness of the Lease
Extension Agreement, payments on account of any Additional Rent (as defined in
the Lease Extension Agreement) pursuant to the provisions of the Lease, such
amounts to be paid to Sublandlord by the date they are due under the
Lease. “Subtenant’s
pro rata share” for the purposes of this Sublease shall mean the
fraction, the numerator of which is equal to the number of rentable square feet
of Subleased Premises (23,123) and the denominator of which is equal to the
number of rentable square feet of Leased Premises (37,423). The
parties agree that the Subtenant’s pro rata share is 61.79%. In
addition, Subtenant shall pay, to Sublandlord, Subtenant’s pro rata share of the
property insurance carried by Sublandlord on improvements located in the
Subleased Premises that were installed by Sublandlord.
C. Subtenant’s
pro rata share of all sums and money payments to be paid by Sublandlord to the
City of New Haven or other governmental taxing authority levied against
Sublandlord for leasehold improvements. For the avoidance of doubt,
Subtenant shall be solely responsible for and pay within the time provided by
law all taxes and assessments imposed on its inventory, furniture, trade
fixtures, apparatus, equipment and any other of Subtenant’s personal or other
property.
2. If
Sublandlord has made any payments to Landlord on account of a period, part of
which occurs after the Commencement Date of this Sublease, Subtenant shall pay
to Sublandlord its pro rata share of the portion of such payment attributable to
the period after the Commencement Date, and similarly if Subtenant is to make
any payments to Sublandlord or Landlord on account of a period, part of which
occurs prior to the Commencement Date of this Sublease, such payment shall be
reduced by the portion thereof attributable to the period prior to the
Commencement Date.
ARTICLE
V
Subtenant's
Covenants
1. With
respect to the Subleased Premises, Subtenant during the term hereof shall
observe, perform or fulfill all of the terms, covenants and conditions of the
Lease on Sublandlord/Tenant's part to be observed, performed or fulfilled and
shall discharge all of Sublandlord/Tenant's obligations under the Lease, but
only to the extent applicable to the Subleased Premises and except for the
payment of rent (required by Article IV hereinabove to be paid to
Sublandlord). In the case of any default by Subtenant in the
observance, performance, fulfillment or discharge of any such term, covenant,
condition or obligation of the Lease, or of any term, covenant, condition or
obligation of this Sublease, Sublandlord shall have all the rights against
Subtenant as would be available to the Landlord against the Sublandlord as
tenant under the Lease. For the purpose of establishing notice and
cure periods for any default of Subtenant under this Sublease, Article 17 of the
Lease is hereby incorporated by reference, it being understood that the term
“Tenant” in said section shall mean Subtenant and the term “Landlord” shall mean
Sublandlord, except that (a) for the purposes of monetary default hereunder, the
reference to “ten (10) days” in Section 17.1.A is changed to five (5) days, (b)
for the purposes of any default of any other covenant, the reference to “thirty
(30) days” in Section 17.1.H is changed to twenty (20) days, and the reference
to “sixty (60)” days is changed to fifty (50) days.
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2. Subtenant
shall indemnify and hold harmless Sublandlord and Landlord against and from all
claims, liabilities and damages which may be imposed upon or incurred by or
asserted against Sublandlord by reason of any failure on the part of Subtenant
to comply with any of the terms, covenants, conditions or obligations contained
in this Sublease or the Lease, on its part to be performed or complied
with.
3. Subtenant
agrees to use and occupy the Subleased Premises for general office and
laboratory purposes only, subject to the limitations of the Lease.
4. The
only services with respect to the Subleased Premises to which Subtenant is
entitled hereunder are those to which Sublandlord as tenant is entitled under
the Lease. It is expressly understood and agreed that Sublandlord
does not assume, and shall have no liability for, the obligations, covenants,
representations and/or warranties of Landlord under the Lease. In
application of the foregoing, Sublandlord shall have no liability or
responsibility for furnishing electricity, heating, air conditioning, cleaning,
window washing or any other service to the Building or Subleased Premises, or
for any maintenance, repairs or alterations which are the responsibility or
obligation of Landlord under the Lease.
5. With
respect to the Subleased Premises and to the extent applicable thereto,
Subtenant shall perform and agrees to comply with Sublandlord’s insurance
obligations under the Lease (to the extent modified
herein). Notwithstanding the foregoing, Subtenant’s obligation with
regard to property insurance shall be limited to Subtenant maintaining all-risk
property insurance for Subtenant’s furnishings, fixtures, equipment, effects and
property of every kind, nature and description (including but not limited to
leasehold improvements made by or on behalf of Subtenant) equal to 100% of the
replacement cost value of such property (it being agreed that Sublandlord will
be maintaining insurance on leasehold improvements previously installed in the
Subleased Premises by Sublandlord, and Subtenant shall reimburse Sublandlord for
such insurance pursuant to paragraph 1(B) of Article IV hereof). Such
insurance required of Subtenant shall include a waiver of subrogation in favor
of Sublandlord and Landlord pursuant to Section 25.3 of the
Lease. Any liability policies which Subtenant is required to maintain
as an obligation of Sublandlord under the Lease shall name both Landlord under
the Lease and Sublandlord hereunder as additional insureds. All
insurance required to be maintained by Subtenant under this Sublease shall be
maintained with insurance companies that have an A.M. Best rating of A VIII or
higher, and all required insurance shall not be reduced or canceled without
thirty (30) days written notice to Sublandlord. Subtenant shall
furnish to Sublandlord and Landlord a certificate of insurance which must
evidence the required coverages and disclose any applicable deductibles and
self-insured retentions prior to the Commencement Date, and thereafter on an
annual basis throughout the term of this Sublease, and more frequently if
reasonably requested by Sublandlord and/or Landlord. Any deductibles
and self-insured retentions must be reasonable and are subject to Sublandlord’s
and Landlord’s prior approval.
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6. Subtenant
shall make no alterations, additions or improvements (collectively “Alterations”) to the Subleased
Premises without the prior written approval of the Landlord required under the
provisions of Article 6 of the Lease, and the prior written consent of
Sublandlord, which consent of Sublandlord shall not be unreasonably
withheld. At the expiration or earlier termination of this Sublease,
Subtenant shall surrender the Subleased Premises free of any lien or encumbrance
made or suffered by Subtenant, and Subtenant shall remove such Alterations made
by or on behalf of Subtenant as Sublandlord may request, repair any damage cause
by such removal, and restore the Subleased Premises to substantially the
condition it was delivered to Subtenant in, reasonable wear and tear and damage
by casualty excepted. The Subleased Premises shall otherwise be
surrendered “broom clean” and in good condition and repair, the effects of
reasonable wear and tear, fire and other casualty, and public taking excepted,
and otherwise in accordance with the requirements of the Lease, including but
not limited to Article 31 thereof.
7. Subtenant
acknowledges that electricity will be furnished to the Subleased Premises by the
utility company and will be separately metered. Subtenant shall pay,
as additional rent in equal monthly installments in advance on the first day of
each and every calendar month during the term hereof (and a proportionate part
for any part of a month), Subtenant’s pro rata share of the electricity charges
payable by Sublandlord.
8. All
of the furnishings, fixtures, equipment, effects and property of every kind,
nature and description of Subtenant and of all persons claiming by, through or
under Subtenant which, during the continuance of this Sublease or any occupancy
of the Subleased Premises by Subtenant or anyone claiming under Subtenant, may
be on the Subleased Premises, shall be at the sole risk and hazard of Subtenant
and if the whole or any part thereof shall be destroyed or damaged by fire,
water or otherwise, or by the leakage or bursting of water pipes, steam pipes,
or other pipes, by theft or from any other cause, no part of said loss or damage
is to be charged to or to be borne by Sublandlord.
ARTICLE
VI
Fire and
Casualty
In the event of a fire or casualty that
does not result in termination of the Lease by the Landlord, Subtenant shall
have the same rights hereunder as Sublandlord as tenant under Article 13 of the
Lease with respect to termination and rent abatement.
ARTICLE
VII
Sublandlord's Covenants and
Representations
A. Sublandlord
represents that the Lease is presently in full force and effect and has not been
modified except as set forth in this Sublease; Sublandlord as tenant has
received no notice of any default on its part thereunder; and Sublandlord's
monetary obligations as tenant under the Lease have been paid to the date
hereof; and the term of the Lease is currently scheduled to expire on March 31,
2013. There are no other representations, oral or written, that have
been made by Sublandlord. In no event shall any representations of
Landlord under the Lease be deemed incorporated herein.
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B. Sublandlord
covenants and agrees, provided that this Sublease is in full force and effect
and Subtenant is not in default hereunder:
1. To
pay Base Rent (as defined in the Lease) directly to Landlord at the times and in
the manner provided in the Lease, and to otherwise perform all obligations of
Sublandlord as tenant under the Lease with regard to the portion of the Leased
Premises outside of the Subleased Premises.
2. To
give Subtenant prompt written notice of all notices, demands or requests from
Landlord which are related to Subtenant’s use or occupancy of the Subleased
Premises or its rights and obligations under this Sublease.
3. If
Landlord shall default in any of its obligations to Sublandlord with respect to
the Subleased Premises, Sublandlord shall cooperate with Subtenant and use
reasonable efforts to enforce Sublandlord’s rights against Landlord, all at
Subtenant’s sole cost and expense.
4. That
Sublandlord shall not, without Subtenant’s consent, agree to any termination,
surrender, cancellation, modification or amendment to the Lease that would have
a material adverse effect upon Subtenant’s rights or increase Subtenant’s
obligations under this Sublease, provided that Sublandlord shall have no
obligation to exercise any Extension Option or rights to Expansion
Space.
5. That
Subtenant shall quietly enjoy the Subleased Premises subject to (a) the terms,
covenants and conditions of this Sublease and the Lease, (b) any mortgages now
or hereafter affecting the Leased Premises, and (c) all renewals, modifications,
consolidations, replacements and extensions thereof, to which this Sublease is
subject and subordinate. Notwithstanding the foregoing, in the event
Subtenant is denied use or enjoyment of any portion of the Subleased Premises by
reason of (i) Subtenant’s default of this Sublease or (ii) any action or
omission of Subtenant or its agents, employees or licensees with respect to the
Subleased Premises, then Sublandlord shall not be deemed to have breached this
covenant of quiet enjoyment.
6. Without
guaranteeing the availability of space, Sublandlord shall request that Landlord
provide Subtenant with a listing in the Building lobby directory, at no expense
to Subtenant. To the extent provided for in the Lease, Subtenant
shall have the right to install signage on the walls of the elevator lobbies of
the Subleased Premises and on entrance doors to the Subleased Premises, such
signage subject to the consent of Landlord and Sublandlord, which consent on the
part of Sublandlord shall not be unreasonably withheld.
ARTICLE
VIII
Assignment or
Subletting
Subtenant may not assign it rights
hereunder or further sublet the Subleased Premises without the express written
consent of Landlord and Sublandlord, which consent on the part of Sublandlord
shall not be unreasonably withheld, it being agreed that in addition to such
consents any such sub-sublease or assignment shall be subject to the
restrictions contained in the Lease, including but not limited to those in
Article 15 thereof.
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ARTICLE
IX
Notices
All notices required or permitted
hereunder shall be in writing and addressed, if to Sublandlord, to Clinical
Data, Inc., Xxx Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, XX, Attn: Chief
Legal Officer, or such other address as Sublandlord shall have last designated
by notice in writing to Subtenant, and if to Subtenant, to the Subleased
Premises, or such other address as Subtenant shall have last designated by
notice in writing to Sublandlord. Any notice shall be deemed
delivered (a) three (3) days after being mailed to such address, postage
prepaid, by registered or certified mail, return receipt requested, (b) one (1)
day after being sent to such address via a nationally recognized overnight
courier that routinely issues delivery receipts, (c) when delivered by hand, or
(d) upon the recipient’s refusal to accept any notice served pursuant to (a),
(b) or (c) above.
ARTICLE
X
Binding
Effect
It is further covenanted and agreed by
and between the parties hereto that all the covenants, agreements and
undertakings in this Sublease contained shall extend to and be binding upon the
legal representatives, successors and assigns of the respective parties hereto,
the same as if they were in every case named and expressed, but nothing herein
shall be construed as a consent by Sublandlord to any assignment or subletting
by Subtenant of any interest of Subtenant in this Sublease. It is the
intention of the parties hereto that the obligations of Subtenant hereunder
shall be separate and independent covenants and agreements, that the Base Rent,
additional rent and all other sums payable by Subtenant to Sublandlord shall
continue to be payable in all events and that the obligations of Subtenant
hereunder shall continue unaffected, unless the requirement to pay or perform
the same shall have been terminated pursuant to an express provision of this
Sublease.
ARTICLE
XI
Brokerage
Sublandlord and Subtenant each
represent that it has not had any dealings with any broker in connection with
the execution of this Sublease, and each party hereto agrees to indemnify and
hold harmless the other from and against any and all claims made in connection
with this Sublease by any broker that is predicated upon dealings with the
indemnifying party.
ARTICLE
XII
Parking
Sublandlord has certain parking rights
pursuant to and governed by the Lease. Subject to those rights,
Sublandlord hereby agrees that Subtenant shall be permitted to use up to 56 of
the unreserved parking spaces allotted to Sublandlord pursuant to the Lease,
upon the terms and conditions that such spaces are made available to Sublandlord
under the Lease.
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ARTICLE
XIII
Right of First
Offer
Subject to the terms of the Lease,
Subtenant shall have a right of first offer to sublease any additional portion
of the Leased Premises that Sublandlord is seeking to sublease (the “RFO Space”). If any
RFO Space becomes so available to sublease during the term of this Sublease,
then prior to marketing such space, Sublandlord shall first notify Tenant of the
opportunity to sublease such RFO Space, on the condition (i) that the initial
Subtenant named herein occupies the entire Subleased Premises and, (ii) that
Subtenant is not in default of its obligations under this Sublease at the time
such RFO Space becomes available, and has not previously been in default beyond
the expiration of any applicable grace period under this
Sublease. Within five (5) days after Sublandlord’s notification,
Subtenant shall indicate to Sublandlord whether it is interested in the
possibility of subleasing such RFO Space. If Tenant timely so
indicates interest in the offered space, Sublandlord shall, within five (5) days
thereafter, notify Subtenant in writing of the terms on which Sublandlord
intends to offer to sublease the RFO Space. The offering terms shall be upon the
same terms and conditions as Sublandlord would offer to the general
market. Subtenant shall have twenty (20) days after the date of
Sublandlord’s written offer to accept or reject such offer. If
Subtenant timely accepts any such offer and the condition precedent shall have
been satisfied, and provided that Landlord consents to such sublease, then,
except for Landlord’s consent to such sublease, no further documentation shall
be necessary to effect the demise of the RFO Space. However,
Sublandlord and Subtenant shall execute an amendment to this Sublease modifying
the Base Rent and Subtenant’s pro rata share and making such other changes to
this Sublease as are necessary to account for the inclusion of the RFO
Space. If Subtenant fails to timely accept, or rejects such offer, or
if the condition precedent is not satisfied, Sublandlord will then be free to
offer the RFO Space to the general market and Subtenant shall have no further
rights under this Article XII. Time is of the essence of this Article
XII.
ARTICLE
XIV
Options to Extend
Term
Sublandlord shall notify Subtenant
whether it intends to exercise any Extension Option seven (7) months prior to
the expiration of the Term and, if Sublandlord does exercise such Extension
Option, Subtenant shall have twenty (20) days to elect to extend this Sublease
for a corresponding Term. In any event, Subtenant agrees to notify
Sublandlord of its desire to extend the term of this Sublease on or before six
(6) months prior to the expiration of the Term to allow Sublandlord to comply
with the time periods set forth in the Lease. Accordingly, upon any
such extension by Sublandlord following Subtenant’s notice to Sublandlord of its
desire to extend the term, this Sublease shall automatically extend on the same
terms and conditions contained herein.
ARTICLE
XV
Confidentiality
Sublandlord and Subtenant will maintain
the confidentiality of this Sublease and will not divulge the economic or other
terms of this Sublease, whether verbally or in writing, to any person, other
than (a) Landlord, (b) Sublandlord’s and Subtenant’s officers, directors,
partners or shareholders, (c) Sublandlord’s and Subtenant’s attorneys, brokers,
accountants and other professional consultants, (d) any governmental agencies,
or (e) pursuant to subpoena or other legal process.
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[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF,
Sublandlord and Subtenant have caused this Sublease Agreement to be executed by
their respective officers hereunto duly authorized and their respective seals
affixed as of the date first above written.
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SUBLANDLORD:
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CLINICAL
DATA, INC.
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By:
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/s/ Xxxxxx X. Xxxxxx
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Print
Name:
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Xxxxxx
X. Xxxxxx
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Print
Title:
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Executive
Vice President, Chief Legal
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Officer
and Secretary
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SUBTENANT:
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TRANSGENOMIC,
INC.
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By:
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/s/ Xxxxx X. Xxxxxx
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Print
Name:
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Xxxxx
X. Xxxxxx
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Print
Title:
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President
and Chief Executive
Officer
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[Signature
Page to Sublease Agreement]
