SUBLEASE
EXHIBIT 99.1
THIS SUBLEASE is entered into as of January 16th, 2008, by and between Microbia
Precision Engineering, Inc., a Delaware corporation (“Landlord”) and Critical Therapeutics, Inc., a
Delaware corporation (“Tenant”).
| 1. | BASIC LEASE PROVISIONS AND CERTAIN DEFINITIONS. |
| A. | Property Address: |
00 Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000-0000. The Property is
legally described on Exhibit A attached hereto.
| B. | Building: |
The one story building located on the Property and containing approximately
40,200 square feet of space, as more particularly shown on Exhibit B.
| C. | Premises: |
Approximately 11,298 square feet of space on the first floor of the Building,
consisting of (i) 9,385 square feet of space exclusively subleased to Tenant
hereunder, (ii) Tenant’s Share of the 4,648 square feet of “shared space,” and
(iii) Tenant’s Share of the 2,159 square feet of “common space,” all as more
particularly shown on the floor plan attached hereto as Exhibit C (the
“Floor Plan”). Tenant’s right to use the “shared space” and “common space”
(as designated on the Floor Plan) shall be in common with Landlord’s right to
use the same, all subject to and in accordance with the terms hereof. For
purposes of this Sublease, “Tenant’s Share” shall mean 28.10%
| D. | Tenant’s Address: |
Critical Therapeutics, Inc., 00 Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx
00000-0000, Attn: President, with a copy to Critical Therapeutics, Inc., 00
Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000-0000, Attn: General Counsel.
| E. | Landlord’s Address (for notices): |
00 Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000-0000, Attn: President
| F. | Prime Landlord: |
ARE-60 Westview, LLC, a Delaware limited liability company
| G. | Prime Landlord’s Address (for notices): |
000 Xxxx Xxxxxxxx Xxxx., Xxxxx 000
Xxxxxxxx, XX 00000
Attn: Corporate Secretary
Xxxxxxxx, XX 00000
Attn: Corporate Secretary
| H. | Identification of Prime Lease: |
Lease Agreement dated as of January 16, 2008, by and between Landlord and Prime
Landlord, a copy of which is attached hereto as Exhibit D.
| I. | Sublease Term: |
Beginning on the Commencement Date and ending on the date that is the last day
of the twelfth (12th) month from the Commencement Date, subject to Tenant’s
extension right as provided in Section 4A, below. For purposes of this
Sublease the phrase “Sublease Term” shall include the initial Term and any
extension Term.
| J. | Commencement Date: |
The Commencement Date of this Sublease shall be the Commencement Date of the
Prime Lease, as defined in Section 2 of the Prime Lease.
| K. | Target Commencement Date: |
March 1, 2008
| L. | Expiration Date: |
The date that is the last day of the twelfth (12th) month from the Commencement
Date. In the event Tenant timely exercises its extension right as provided in
Section 4A below, the Expiration Date shall be the last day of the Extension
Term.
| M. | Base Rent: |
$372,834.00 per annum (equal to $33.00 per square foot per annum), payable in
equal monthly installments of $31,069.50.
| N. | Payment of Address: |
00 Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000-0000, Attn: CFO
| O. | Security Deposit: |
A cash security deposit in the amount of $40,000.00
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| P. | Permitted Use (set forth with specificity): |
General office use and for no other use or uses whatsoever.
2. PRIME LEASE. Landlord is the tenant under the Prime Lease with the Prime Landlord.
Landlord warrants that (a) Landlord has delivered to Tenant a complete copy of the Prime Lease and
all other agreements between Prime Landlord and Landlord relating to the leasing, use or occupancy
of the Premises, (b) the Prime Lease is, as of the date of this Sublease, in full force and effect,
and (c) no event of default has occurred and is continuing that would constitute an event of
default by Landlord, but for the requirement of the giving of notice and the expiration of the
period of time to cure.
3. SUBLEASE. Landlord, in consideration of the rents and the agreements to be performed by
Tenant, subleases to Tenant, and Tenant subleases from Landlord, the Premises.
4. SUBLEASE TERM. The Sublease Term shall commence on the Commencement Date and shall expire
on the Expiration Date, unless sooner terminated or extended as provided elsewhere in this
Sublease.
4A. EXTENSION TERM. Tenant shall have the right to extend the Sublease Term (the “Extension
Right”) for one period of six (6) months from the Expiration Date of the initial Term (the
“Extension Term”) on all of the same terms and conditions as this Sublease, by giving Landlord
written notice of its election to exercise the Extension Right on or before the date that is 120
days prior to the Expiration Date. Notwithstanding anything set forth above to the contrary, the
Extension Right shall not be in effect and Tenant shall not exercise the Extension Right during any
period of time that an Event of Default (as defined in Section 21) is continuing under this
Sublease or if 3 or more Events of Default have occurred during the Term, whether or not the Events
of Default are cured. Further, the Extension Right shall terminate and be of no further force or
effect even after Tenant’s due and timely exercise of the Extension Right if, after such exercise
but prior to the commencement of the Extension Term, Tenant fails to timely cure any default by
Tenant under this Sublease. The period of time within which the Extension Right may be exercised
shall not be extended or enlarged by reason of Tenant’s inability to timely exercise the Extension
Right and Tenant shall have no further right to extend the Term beyond the expiration of the
Extension Term. The Extension Right is personal to Tenant and is not assignable without Landlord’s
prior consent, which may be granted or withheld in Landlord’s sole discretion.
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5. POSSESSION. Landlord agrees to deliver possession of the Premises at such time as Prime
Landlord delivers possession of the Premises to Landlord pursuant to and in accordance with the
Prime Lease. The Premises shall be delivered to Tenant in the same condition such Premises are
delivered to Landlord by Prime Landlord, subject to and in accordance with the Prime Lease.
Subject to the foregoing sentence, Tenant acknowledges that it has inspected the Premises and is
fully familiar with the physical condition thereof, and agrees to take the same “as is” and in
broom clean condition. Tenant acknowledges that Landlord shall have no obligation to do any work
in and to the Premises, or incur any expense in connection with said work, in order to make them
suitable and ready for occupancy and use by the Tenant.
6. TENANT’S USE. The Premises shall be used and occupied only for the Permitted Use and for
no other use or uses.
7. RENT.
A. Beginning on the Commencement Date, Tenant agrees to pay the Base Rent to Landlord at the
Payment Address, or to another payee or at another address designated by notice from Landlord to
Tenant, without prior demand and without any abatement (except as expressly set forth in Section
13), offset or deduction. Base Rent shall be paid in equal monthly installments in advance on the
first day of each month of the Sublease Term, except that the first installment of Base Rent shall
be paid by Tenant to Landlord upon execution of this Sublease by Tenant. Base Rent shall be
pro-rated for partial months at the beginning and end of the Sublease Term. All charges, costs,
and sums required to be paid by Tenant to Landlord under this Sublease in addition to Base Rent
shall be deemed “Additional Rent,” and Base Rent and Additional Rent are collectively referred to
as “Rent.” Tenant’s covenant to pay Rent is independent of every other covenant in this Lease. If
Rent is not paid when due, Tenant shall pay, relative to the delinquent payment, an amount equal to
the sum that would be payable by Landlord to Prime Landlord for late payment under the Prime Lease.
B. Landlord hereby acknowledges and agrees that the Base Rent is a “gross rent” and that
Tenant is not obligated to pay any additional amount on account of Operating Expenses (as defined
in the Prime Lease), Taxes (as defined in the Prime Lease), Prime Landlord or Landlord’s insurance,
electricity or other similar cost or expense.
8. QUIET ENJOYMENT. Landlord represents that it has full power and authority to enter into
this Sublease, subject to obtaining the consent of the Prime Landlord. So long as no Event of
Default (defined in Section 21) has occurred, Tenant’s quiet and peaceable enjoyment of the
Premises shall not be disturbed by Landlord or by anyone claiming through Landlord.
9. INSURANCE; WAIVER OF SUBROGATION.
A. Tenant shall procure and maintain at its expense throughout the Sublease Term liability
insurance in such form and in such amounts as Landlord is required to carry under the Prime Lease,
naming Landlord, as well as Prime Landlord, in the manner required in the Prime Lease. Tenant
shall procure and maintain at its expense throughout the Sublease Term all risk property insurance
with business interruption and extra expense coverage, covering the full replacement cost of all
property and improvements installed or placed in the Premises by Tenant
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at Tenant’s expense during the Sublease Term. In addition, Tenant shall procure and maintain at
its expense throughout the Sublease Term such other insurance in such form and in such amounts as
Landlord is required to carry under the Prime Lease, but only to the extent such insurance pertains
to the Premises. Tenant shall furnish to Landlord a certificate of Tenant’s insurance not later
than 10 days prior to Tenant’s taking possession of the Premises.
B. Landlord shall procure and maintain at its expense throughout the Sublease Term liability
insurance in such form and in such amounts as Landlord is required to carry under the Prime Lease,
naming Tenant, in addition to those required under the Prime Lease, as an additional insured. In
addition, Landlord shall procure and maintain at its expense throughout the Sublease Term all risk
property insurance in such form and in such amounts as Landlord is required to carry under the
Prime Lease.
C. Each party waives claims against the other for property damage and each party shall obtain
from its insurance carrier a waiver of its right of subrogation. Tenant waives claims against
Prime Landlord and Landlord for property damage to the Premises or its contents if and to the
extent that Landlord waives such claims against Prime Landlord under the Prime Lease. Tenant
agrees to obtain for the benefit of Prime Landlord and Landlord waivers of subrogation rights from
its insurer to the extent they are required of Landlord under the Prime Lease. Landlord agrees to
obtain for the benefit of Prime Landlord and Tenant waivers of subrogation rights from its insurer
to the extent they are required of Landlord under the Prime Lease. Landlord agrees to use
commercially reasonable efforts 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, but only if and to the extent that Prime Landlord
waives such claims against Landlord under the Prime Lease or is required under the Prime Lease to
obtain a waiver of subrogation rights.
10. ASSIGNMENT OR SUBLETTING. Tenant shall not directly or indirectly, voluntarily or
involuntarily (i) assign, convey, mortgage or otherwise transfer this Sublease or any interest
under it; (ii) allow any transfer of the Sublease or any lien upon Tenant’s interest by operation
of law or otherwise; (iii) sublet or sub-sublet all or any part of the Premises; or (iv) permit the
use or occupancy of all or any part of the Premises by anyone other than Tenant. Notwithstanding
the foregoing, Tenant shall, upon 30 days prior written notice to Landlord and to Prime Landlord,
but without obtaining the prior written consent of Landlord or Prime Landlord, have the right to
make a transfer not otherwise permitted hereunder or assign this Lease to (A) a corporation or
other entity which is a successor-in-interest to Tenant, by way of merger, consolidation or
corporate reorganization, or by the purchase of all or substantially all of the assets or the
ownership interests of Tenant provided that (i) such merger or consolidation, or such transfer,
acquisition or assumption, as the case may be, is for a good business purpose and not principally
for the purpose of transferring the Lease, and (ii) the net worth (as determined in accordance with
generally accepted accounting principles (“GAAP”)) of Tenant after the transfer or the net worth
(as determined in accordance with GAAP) of the assignee, as the case may be, is not less than the
net worth (as determined in accordance with GAAP) of Tenant as of the date of Tenant’s most current
quarterly or annual financial statements, and (iii) any such assignee shall agree in writing to
assume all of the terms, covenants and conditions of this Sublease arising after the effective date
of the assignment, or (B) to any entity controlling, controlled by or under common control with
Tenant, provided that Landlord and Prime Landlord shall have the right to
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approve the form of any such sublease or assignment (such approval not to be unreasonably
withheld, delayed or conditioned).
11. RULES. Tenant agrees to comply with all rules and regulations that Prime Landlord has
made or may in the future make for the Building. Landlord shall not be liable for damage caused to
Tenant by the non-observance of similar covenants or of rules and regulations by other tenants or
occupants of the Building.
12. REPAIRS AND COMPLIANCE. Tenant shall, at its expense, comply with all laws, ordinances,
rules, regulations, requirements, and orders of all governmental authorities and, where applicable,
all insurance bodies and their loss prevention personnel in force at any time during the Sublease
Term that are applicable to the Premises (“Legal Requirements”) to the extent such compliance is
required as a result of any Alterations (as defined in Section 14) made by Tenant to the Premises
or Tenant’s particular use or manner of use of the Premises. Tenant shall not be obligated to
comply with any Legal Requirement requiring any structural alteration of or in connection with the
Premises if the alteration is required other than by reason of Tenant’s particular use or manner of
use of the Premises, or a condition that has been created by or at the sufferance of Tenant, or is
required by reason of an Event of Default. “Structural” is defined in Section 36.
13. FIRE OR CASUALTY OR EMINENT DOMAIN. In the event of a fire or other casualty affecting
the Building or the Premises, or of a taking of all or a part of the Building or Premises by the
exercise of the power of eminent domain, Landlord may exercise any right available to it at law or
under the Prime Lease, including any right that may have the effect of terminating the Prime Lease
or this Sublease, without first obtaining the prior consent of Tenant. In the event such fire or
other casualty or such taking materially adversely affects the Premises, Tenant’s use of the
Premises, or Tenant’s access to the Premises, as determined in the reasonable judgment of Tenant,
then Tenant shall have the right to terminate this Sublease by notice given to Landlord within
forty-five days after the date of such fire or other casualty or such taking. If Landlord is
entitled under the Prime Lease to a rent abatement as a result of a fire or other casualty or as a
result of taking under the power of eminent domain, then Tenant shall be entitled to a rent
abatement calculated by multiplying (i) the area of the Premises made untenantable by (ii) the Rent
per square foot payable from time to time during the period of abatement.
14. ALTERATIONS.
A. In connection with this Sublease, Landlord and Tenant hereby acknowledge and agree that
Prime Landlord will be making Alterations (as defined in Section 14.B) to the interior of the
Building in order to separate the Premises from the other portions of the Building. A description
of such Alterations (the “Separation Work”) is included in Exhibit C (Work Letter) to the Prime
Lease, which has been reviewed and approved by both parties. The parties agree that Tenant shall
not be responsible for any costs or expenses associated with the Separation Work. The parties
further agree that Landlord shall have no obligation to perform any of the Separation Work and
Landlord shall not be liable to Tenant for any loss or damage resulting from Prime Landlord’s
failure to complete the Separation Work on or before the Target Commencement Date. Upon the
expiration or earlier termination of this Sublease, Tenant shall be required to surrender the
Premises in accordance with Section 15, below, but shall not be
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obligated to remove the Separation Work, notwithstanding anything to the contrary contained in this
Sublease or the Prime Lease.
B. Tenant shall not at any time during the Sublease Term make any alterations, additions or
improvements to the Premises (“Alterations”), including minor, non-structural alterations such as
painting, re-carpeting and the like, without the prior written consent of Landlord, which may be
granted or withheld in its sole discretion. Notwithstanding the foregoing sentence, Tenant shall
be permitted to perform “touch-up” painting to the Premises from time to time, provided Tenant
gives Landlord prior notice (which may include email or telephonic notice), and provided further
that any “touch up” painting uses the same color or colors as exist in the Premises as of the date
hereof. If Landlord consents to any proposed Alterations, Landlord shall notify Tenant at the time
of its consent whether such Alterations need to be removed upon the expiration or earlier
termination of this Sublease. If Landlord fails to so notify Tenant, then Landlord shall be deemed
to have waived its right to require such removal, and Tenant shall not be obligated to remove such
Alterations notwithstanding anything to the contrary contained in this Sublease or the Prime Lease.
15. SURRENDER. At the expiration or earlier termination of this Sublease or of the Tenant’s
right to possession of the Premises, Tenant will at once surrender and deliver the Premises,
together with their improvements, to Landlord in the same good condition and repair as existed on
the Commencement Date, reasonable wear and tear excepted. The parties agree that conditions
existing because of Tenant’s negligence or willful misconduct or Tenant’s failure to perform
maintenance, repairs, or replacements as required of Tenant under this Sublease shall not be deemed
“reasonable wear and tear.” The improvements shall include all plumbing, lighting, electrical,
heating, cooling, and ventilating fixtures and equipment. Tenant shall deliver to Landlord all
keys, lock combination, and key card access information for the Premises. All Alterations to the
Premises made by Tenant shall become a part of and shall remain upon the Premises without
compensation to Tenant; provided, however, that Tenant shall remove all or any portion of the
Alterations made by Tenant that Prime Landlord may require Landlord to remove under the Prime Lease
and all Alterations that Landlord requires to be removed, as indicated to Tenant at the time of
Landlord’s consent to such Alteration. If Tenant is required to remove Alterations, Tenant shall
restore the Premises to their condition prior to the making of the Alteration, repairing any damage
resulting from the removal or restoration. If Tenant does not perform the removal in accordance
with this Section, Landlord may remove the Alterations (and repair any damage occasioned thereby)
and dispose of them, and Tenant shall pay as Additional Rent the costs of the removal, repair, and
disposal on demand.
16. REMOVAL OF TENANT’S PROPERTY. Upon the expiration or earlier termination of the Sublease,
Tenant shall remove all of its contents, including trade fixtures, machinery, equipment, furniture,
and furnishings (“Personalty”). Tenant shall repair any damage to the Premises or Building
resulting from the removal and shall restore the Premises to the same condition as prior to their
installation. If Tenant does not remove the Personalty prior to the expiration or earlier
termination of the Sublease, Landlord may, at its option, remove them (and repair any resulting
damage) and store, dispose of, or deliver the Personalty to any other place of business of Tenant,
and Tenant shall pay the cost to Landlord on demand, or Landlord may treat the Personalty as having
been conveyed to Landlord with this Sublease as a Xxxx of Sale, without further payment or credit
by Landlord to Tenant.
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17. HOLDING OVER. Tenant shall have no right to occupy all or any part of the Premises after
the expiration of the Sublease Term or after termination of this Sublease or of Tenant’s right to
possession in consequence of an Event of Default. If Tenant or any party claiming by, through, or
under Tenant holds over, Landlord may exercise any remedies available to it to recover possession
of the Premises, and to recover damages, including damages payable by Landlord to Prime Landlord by
reason of the holdover. For each month or partial month that Tenant or any party claiming by,
through, or under Tenant holds over, Tenant shall pay, as minimum damages and not as a penalty,
monthly rental at a rate equal to 150% of the rate of Rent payable by Tenant immediately prior to
the holdover. The acceptance by Landlord of any lesser sum shall be construed as payment on
account and not in satisfaction of damages for such holding over.
18. ENCUMBERING TITLE. Tenant shall not do anything or permit anything to be done that shall
encumber the title of Prime Landlord in and to the Building or the Property, nor shall the interest
or estate of Prime Landlord or Landlord be subject to any claim by way of lien or encumbrance
caused by Tenant. Any claim to, or lien upon, the Premises, the Building, or the Property arising
from any act or omission of Tenant shall accrue only against the subleasehold estate of Tenant and
shall be subordinate to the rights of Prime Landlord in and to the Building and the Property and
the interest of Landlord in the premises leased pursuant to the Prime Lease. Specifically, Tenant
shall not permit the Premises, the Building, or the Property to become subject to any mechanic’s
lien on account of labor or material furnished to Tenant or claimed to have been furnished to
Tenant 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 Tenant.
19. INDEMNITY.
A. Tenant agrees to Indemnify (as defined in Section 36) Landlord if Landlord is liable to
Prime Landlord because of acts or omissions of Tenant that are the subject matter of any indemnity
or hold harmless of Landlord to Prime Landlord under the Prime Lease. Tenant shall be solely
responsible and liable for any and all injury, loss or damage to persons or property on or about
the Building or the Premises (including, without limitation, the common areas) to the extent such
injury, loss or damage is caused by the negligence or willful misconduct of Tenant or Tenant’s
employees, agents, contractors, invitees or guests. Subject to the mutual waiver of subrogation
provisions and to the release provisions of this Sublease, Tenant shall Indemnify Landlord and
Prime Landlord from all costs, claims, suits and obligations arising on account of all injury, loss
or damage for which Tenant is responsible and liable as aforesaid, including reasonable attorneys’
fees.
B. Landlord shall be solely responsible and liable for any and all injury, loss or damage to
persons or property on or about the Building or Premises (including, without limitation, the common
areas) to the extent such injury, loss or damage is caused by the negligence or willful misconduct
of Landlord or Landlord’s employees, agents, contractors, invitees or guests. Subject to the
mutual waiver of subrogation provisions and to the release provisions of this Sublease, Landlord
shall Indemnify Tenant from all costs, claims, suits and obligations arising on account of all
injury, loss or damage for which Landlord is responsible and liable as aforesaid, including
reasonable attorneys’ fees.
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20. LANDLORD’S RESERVED RIGHTS. Landlord reserves the right, on reasonable prior notice, to
inspect the Premises or to exhibit them to persons having a legitimate interest at any time during
the Sublease Term.
21. DEFAULTS. Tenant agrees that any one or more of the following events shall be considered
Events of Default:
A. Tenant is adjudged an involuntary bankrupt, or a decree or order approving a petition or
answer filed against Tenant asking for reorganization of Tenant 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 within 60 days.
B. Tenant files, or admits 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 as now or hereafter amended, or Tenant shall institute any proceedings
for relief of Tenant under any bankruptcy or insolvency laws or any laws relating to the relief of
debtors, readjustment of indebtedness, reorganization, arrangements, composition, or extension.
C. Tenant makes an assignment for the benefit of creditors or applies for or consents to the
appointment of a receiver for Tenant or any of the property of Tenant.
D. Tenant admits in writing its inability to pay its debts as they become due.
E. The Premises are levied on by any revenue officer or similar officer.
F. A decree or order appointing a receiver of the property of Tenant is made, and such decree
or order shall not have been vacated, stayed, or set aside within 60 days.
G. Tenant defaults in any payment of Rent when due, and the default continues for 5 days
(provided that such cure period shall apply only two (2) times in each consecutive twelve month
period).
H. Tenant defaults in securing insurance or in providing evidence of insurance as required in
Section 9.
I. Tenant shall assign, sublease or otherwise transfer or attempt to transfer all or any
portion of Tenant’s interest in this Sublease, except as otherwise expressly permitted in this
Sublease.
J. Tenant by its act or omission to act causes a default under the Prime Lease, and such
default, if curable, is not cured within the time, if any, permitted for cure under the Prime
Lease; provided, however, that Landlord may cure any such default prior to the expiration of such
cure period if necessary to protect Landlord’s interests under the Prime Lease or to prevent injury
or damage to persons or property. Tenant shall reimburse Landlord promptly upon demand for all
costs incurred by Landlord in curing such default, or Landlord may, at its option, add such amounts
to the next payment of Rent due hereunder.
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K. Tenant defaults in any of the other agreements contained in this Lease to be performed by
Tenant, and the default continues for 30 days after notice; provided, however, that Landlord may
cure any such default prior to the expiration of such cure period if necessary to protect
Landlord’s interests under the Prime Lease or to prevent injury or damage to persons or property.
Tenant shall reimburse Landlord promptly upon demand for all costs incurred by Landlord in curing
such default, or Landlord may, at its option, add such amounts to the next payment of Rent due
hereunder.
L. The occurrence of any other event or circumstance denominated an “event of default” in this
Sublease.
22. REMEDIES. Upon the occurrence of any one or more Events of Default, Landlord may exercise
any remedy against Tenant that Prime Landlord may exercise for default by Landlord under the Prime
Lease.
23. SECURITY DEPOSIT. To secure the faithful performance by Tenant of all its obligations
under this Sublease, including the obligations that become applicable upon the expiration or
termination of the Sublease, Tenant has deposited the Security Deposit with Landlord on the
understanding that: (a) all or any portion of the Security Deposit not previously applied may from
time to time be applied to the curing of any default that may then exist, without prejudice to any
other remedies that Landlord may have, and upon application, Tenant shall pay Landlord on demand
the amount applied, which shall be added to the Security Deposit so it is restored to its original
amount; (b) if the Lease is assigned by Landlord, the Security Deposit or any portion not
previously applied may be turned over to Landlord’s assignee and if the same is turned over, Tenant
releases Landlord from any liability with respect to the Security Deposit and its application or
return; (c) Landlord or its successor shall not be obligated to hold the Security Deposit as a
separate fund, but may commingle it with its other funds; (d) the sum deposited or the portion not
previously applied shall be returned to Tenant without interest no later than 30 days after the
expiration of the Sublease Term, provided Tenant has vacated and surrendered possession of the
Premises to Landlord as required by this Sublease and there is no Event of Default that remains
uncured; (e) if Landlord terminates this Sublease or Tenant’s right to possession by reason of an
Event of Default by Tenant, Landlord may apply the Security Deposit against damages suffered to the
date of the termination and may retain the Security Deposit to apply against damages as may be
suffered or shall accrue thereafter by reason of Tenant’s default; (f) if any bankruptcy,
insolvency, reorganization, or other creditor-debtor proceedings are instituted by or against
Tenant, or its successors or assigns, the Security Deposit shall be deemed to be applied first to
the payment of any Rent due Landlord for all periods prior to the institution of the proceedings,
and the balance, if any, may be retained or paid to Landlord in partial liquidation of Landlord’s
damages.
24. COMMUNICATIONS. All notices, demands, requests, consents, approvals, agreements, or other
communications (“Communications”) that 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 Tenant, addressed to Tenant at Tenant’s Address or at such
other place as Tenant may from time to time designate by notice to Landlord or (b) if to Landlord,
addressed to Landlord at Landlord’s Address or at such
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other place as Landlord may from time to time designate by notice to Tenant. Each party
agrees to deliver promptly a copy of each Communication from the other party to Prime Landlord, and
to deliver promptly to the other party a copy of any Communication received from Prime Landlord.
The copies shall be delivered by commercial courier for delivery on the next business day.
25. PROVISIONS REGARDING SUBLEASE. This Sublease and all the rights of the parties under it
are subject and subordinate to the Prime Lease. Each party agrees that it will not, by its act or
omission to act, cause a default under the Prime Lease. In furtherance of the foregoing, the
parties 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 to
specifically allocate those rights and obligations in this Sublease agreement. Accordingly, in
order to afford to Tenant the benefits of this Sublease and of those provisions of the Prime Lease
that by their nature are intended to benefit the party in possession of the Premises, and in order
to protect Landlord against a default by Tenant that might cause a default or event of default by
Landlord under the Prime Lease, the parties agree:
A. Tenant shall perform all affirmative covenants and shall refrain from performing any act
that is prohibited by the negative covenants of the Prime Lease, where the obligations to perform
or refrain from performing is by its nature imposed upon the party in possession of the Premises,
except to the extent otherwise expressly provided in this Sublease. Tenant shall perform those
affirmative covenants that it is obligated to perform under the terms of the Prime Lease or this
Sublease at least 5 days prior to the date when Landlord’s performance is required under the Prime
Lease. Landlord shall have the right to enter the Premises to cure any default by Tenant under
this Section.
Notwithstanding the foregoing or any other provision contained in this Sublease to the
contrary, Tenant’s repair and maintenance obligations with respect to the Premises shall be limited
to those set forth in Section 14 of the Prime Lease, except that Tenant shall in no event be
responsible for any repair or replacement that includes capital expenditures of any kind. Tenant
shall replace all lamps, bulbs and ballasts for the lights located within the Premises.
Notwithstanding the foregoing or any other provision contained in this Sublease to the
contrary, the following provisions of the Prime Lease shall not apply to Tenant and Tenant shall
not have any obligation to perform Landlord’s obligations thereunder: the provisions of the Basic
Lease Provisions; Section 1; Section 2 (except with respect to delivery of the Premises and the
Commencement Date); Section 3; Section 4; Section 5; Section 6; Section 8; Section 9; Section 12;
Section 20; Section 22; Section 35; Section 39; Section 40(a); and Section 40(l).
In the event of any conflict between the provisions of the Prime Lease and the provisions of
this Sublease, the provisions of this Sublease shall control.
B. Landlord shall not agree to any amendment to the Prime Lease that would likely have an
adverse effect on Tenant’s occupancy of the Premises or its use of the Premises for the Permitted
Use, unless Landlord shall first obtain Tenant’s prior approval, which approval shall not be
unreasonably withheld, conditioned or delayed.
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C. Landlord grants to Tenant 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, including,
without limitation, those set forth in Section 11 of the Prime Lease. Landlord shall have no duty
to perform any obligations of Prime Landlord that are, by their nature, the obligation of any owner
or manager of real property. For example, Landlord shall not be required to provide the services
or repairs that the Prime Landlord is required to provide under the Prime Lease. Landlord shall
have no responsibility for and shall not be liable to Tenant for any default, failure, or delay on
the part of Prime Landlord in the performance or observance by Prime Landlord of any of its
obligations under the Prime Lease, nor shall any default by Prime Landlord affect this Sublease or
waive or defer the performance of any of Tenant’s obligations under this Sublease. In addition,
Landlord shall not incur any liability whatsoever to Tenant for any injury, inconvenience,
incidental or consequential damages incurred or suffered by Tenant as a result of the exercise by
Prime Landlord of any of the rights reserved to Prime Landlord under the Prime Lease, nor shall
such exercise constitute a constructive eviction or a default by Landlord hereunder.
Notwithstanding the foregoing, in the event that Prime Landlord shall fail or refuse to comply with
any of the terms of the Prime Lease on its part to be performed and such failure affects the
Premises or the use or occupancy thereof by Tenant, Tenant shall have the right, in its own name,
to require and obtain performance by Prime Landlord pursuant to the terms of the Prime Lease.
D. Landlord and Tenant shall each deliver to the other copies of all notices, requests or
demands that relate to the Premises or any portion thereof promptly after receipt thereof from
Prime Landlord under the Prime Lease.
26. ADDITIONAL SERVICES.
A. Tenant shall have the right to request from Prime Landlord services required by Tenant in
addition to those otherwise required to be provided by Prime Landlord under the Prime Lease (such
as after hours heating or cooling). Tenant shall pay Prime Landlord’s charge for those services
promptly after having been billed by Prime Landlord or by Landlord. If at any time a charge for
the additional services is attributable to the use of the services both by Landlord and by Tenant,
the cost shall be equitably divided between them.
B. Landlord agrees to provide, at no additional cost to Tenant, a receptionist for the
Building that is reasonably satisfactory to Tenant. The duties of such receptionist shall include,
without limitation, greeting Landlord’s and Tenant’s visitors, sorting Landlord’s and Tenant’s
mail, and answering Landlord’s and Tenant’s telephone.
C. Landlord agrees to provide, at no additional cost to Tenant, reasonable loading dock
services for Tenant, which shall include, without limitation, loading, receiving, sorting and
managing Landlord’s and Tenant’s loading dock deliveries and shipments.
27. PRIME LANDLORD’S CONSENT. Prime Landlord has consented to this Sublease pursuant to a
separate Consent to Sublease by and among Prime Landlord, Landlord and Tenant of even date
herewith. Tenant shall promptly deliver to Landlord any information reasonably requested by Prime
Landlord in connection with Prime Landlord’s approval of this Sublease, including, without
limitation, information as to the nature and operation of Tenant’s
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business and the financial condition of Tenant, or both. Landlord and Tenant 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 Tenant; (b) be deemed to have amended the
Prime Lease in any regard (unless Prime Landlord shall have expressly agreed to the amendment); or
(c) be construed as a waiver of Prime Landlord’s right to consent to any assignment of the Prime
Lease by Landlord or any further subletting of the premises leased pursuant to the Prime Lease, or
as a waiver of Prime Landlord’s right to consent to any assignment by Tenant of this Sublease or
any sub-subletting of all or any part of the Premises. Prime Landlord’s consent shall, however, be
deemed to evidence Prime Landlord’s agreement that Tenant may use the Premises for the Permitted
Use and Tenant 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 Landlord. Landlord and Tenant agree that all of Prime Landlord’s costs and expenses
incurred in connection with this Sublease shall be paid one-half by Landlord and one-half by
Tenant. If Prime Landlord fails to consent to this Sublease within 45 days after the execution and
delivery of this Sublease, either party may terminate this Sublease by giving notice to the other
at any time thereafter, but before Prime Landlord grants consent.
28. TERMINATION OF SUBLEASE. This Sublease shall terminate upon any termination of the Prime
Lease for any reason whatsoever which deprives the Landlord of possession of the Premises, without
any liability therefor upon the part of Landlord to Tenant and with the same force and effect as if
the date of such termination had expressly been provided in this Sublease as the date of
termination hereof.
29. HAZARDOUS MATERIALS. Tenant shall not use, store, dispose of or permit to remain on the
Premises any hazardous materials other than reasonable and customary office supplies and office
cleaning supplies. For the purposes of this section, the term “Hazardous Materials” shall include,
without limitation, any petroleum product, any flammable, explosive or radioactive material, or any
hazardous or toxic waste, substance or material, including, without limitation, substances defined
as “hazardous substances,” “solid waste” or “toxic substances” under any applicable laws relating
to hazardous or toxic materials and substances, air pollution (including noise and odors), water
pollution, liquid and solid waste, pesticides, drinking water, community and employee health,
environmental land use management, stormwater, sediment control, nuisances, radiation, wetlands,
endangered species, environmental permitting and petroleum products, which laws may include, but
not be limited to, the Federal Insecticide, Fungicide, and Rodenticide Act, as amended; the Toxic
Substance Control Act; the Clean Water Act; the National Environmental Policy Act, as amended; the
Solid Waste Disposal Act, as amended; the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986; the
Hazardous Material Transportation Act, as amended; the Resource Conservation and Recovery Act, as
amended; the Clean Air Act, as amended; the Emergency Planning and Community Right-To-Know Act, as
amended; the Occupational Safety and Health Act, as amended; comparable state laws; and all rules
and regulations promulgated pursuant to such laws and ordinances.
30. BROKERAGE. Landlord represents and warrants to Tenant that it has had no dealings with
any broker in connection with this Sublease. Tenant represents and warrants to
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Landlord that it has had no dealings with any broker in connection with this Sublease other
than Xxxxxx Xxxxxxxx of Xxxxxxxx Xxxxx Xxxxx & Partners, LLC (“Tenant’s Broker”). Tenant agrees to
indemnify and hold harmless Landlord from and as to any liability for any compensation claimed by
Tenant’s Broker or any other agent or broker with respect to this Sublease or its negotiation on
behalf of Tenant. Landlord agrees to indemnify and hold harmless Tenant from and as to any
liability for any compensation claimed by any broker or agent (other than Tenant’s Broker) with
respect to this Sublease or its negotiations on behalf of Landlord.
31. FORCE MAJEURE. Neither party shall be deemed in default with respect to any of its
obligations under this Sublease if that party’s failure to perform timely 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, shortages,
accidents, casualties, acts of God, acts caused directly by the other party or its agents,
employees, and invitees, or any other cause beyond that party’s reasonable control. This Section
shall not be applicable, however, if either party’s failure to perform timely creates a default
under the Prime Lease.
32. FURNITURE AND EQUIPMENT. Simultaneously with the execution of this Sublease, Tenant and
Landlord shall enter into a Xxxx of Sale in substantially the form attached hereto as Exhibit
E, whereby Tenant shall convey to Landlord certain furniture and equipment located at the
Building, in accordance with and subject to the terms of the Xxxx of Sale.
33. DENALI CONFERENCE ROOM.
A. Subject to the terms of this Section 33, Landlord shall have the right from time to time
throughout the Term to use the conference room located in the Premises known as the “Denali
Conference Room” for purposes of conducting board meetings, telephone or video conferences and for
all other reasonable uses required by Landlord; provided, however, Landlord may not use the Denali
Conference Room more than twenty (20) times during the Sublease Term. Landlord shall provide
Tenant with at least 10 days advance notice of its desire to use the conference room, which notice
shall include the date, time and duration of Landlord’s use. If Tenant has previously scheduled a
meeting in the Denali Conference Room during the time period requested by Landlord, then Tenant
shall so notify Landlord and Landlord shall not be permitted to use the Denali Conference Room
during such time period. If Tenant has not previously scheduled a meeting in the Denali Conference
Room during the time period requested by Landlord, then Landlord may use the Denali Conference Room
during the requested period. Tenant shall reasonably cooperate with Landlord in connection with
the scheduling of the Denali Conference Room. Notwithstanding anything to the contrary contained
herein, in the event that a scheduling conflict arises, Tenant’s right to use the Denali Conference
Room shall take precedence.
B. Notwithstanding anything to the contrary contained in this Sublease, if, in connection
with its use of the Denali Conference Room, Landlord or Landlord’s employees, agents, contractors,
invitees or guests damage the furniture or equipment in the Denali Conference Room (including,
without limitation, the audio-visual equipment), then Landlord shall promptly repair such damage at
its sole expense. In the event Tenant reasonably determines that repairing such furniture or
equipment is not commercially reasonable, then
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Landlord shall promptly replace such furniture or equipment at its sole expense.
34. SERVER ROOM; CAFETERIA
A. The parties acknowledge that Landlord will be installing its servers and other related
equipment in Tenant’s server room. If, in connection with such installation or the subsequent
operation, maintenance, repair or replacement of its servers and other related equipment, Landlord,
or Landlord’s employees, agents, or contractors, damage or destroy any of Tenant’s servers and/or
related equipment, then Landlord shall reimburse Tenant for the entire cost to repair such damage
or to replace such server or related equipment within ten (10) days after receipt of a reasonably
detailed statement from Tenant. If, in connection with Tenant’s operation, maintenance, repair or
replacement of its servers and other related equipment, Tenant, or Tenant’s employees, agents, or
contractors, damage or destroy any of Landlord’s servers and/or related equipment, then Tenant
shall reimburse Landlord for the entire cost to repair such damage or to replace such server or
related equipment within ten (10) days after receipt of a reasonably detailed statement from
Landlord. In the event of any conflict between the provisions of this Section 34.A and any other
provision of this Sublease, the provisions of this Section 34.A shall control.
B. The parties further acknowledge that Landlord will be sharing Tenant’s cafeteria. If, in
connection with the use of the cafeteria, Landlord or Landlord’s employees, agents, contractors,
invitees or guests, damage or destroy any of Tenant’s appliances, equipment or furniture contained
in the cafeteria, then Landlord shall reimburse Tenant for the entire cost to repair such damage or
to replace such appliance, equipment or furniture within ten (10) days after receipt of a
reasonably detailed statement from Tenant.
35. PARKING
Subject to Force Majeure (as defined in the Prime Lease), a Taking (as defined in the Prime
Lease) and the exercise by Prime Landlord of its rights under the Prime Lease, Tenant shall have
the right to park (free of charge for the Sublease Term) in Tenant’s Share of the Project areas
designated for parking, subject in each case to Prime Landlord’s rules and regulations.
36. DEFINITIONS AND CONSTRUCTION.
A. The words “including,” “include,” or “includes” or words of similar import shall not,
unless otherwise provided, be construed as words of limitation.
B. The words “structure” or “structural” shall have the definition ascribed to it in the Prime
Lease or, if no definition is given there, “structure” or “structural” shall mean that portion of
the Building that is integral to the integrity of the Building as an existing enclosed unit and
shall include footings, foundation, outside walls, skeleton, bearing columns and interior bearing
walls, floor slabs, roof, and roofing system.
C. The phrase “not unreasonably withheld” means “not unreasonably withheld, delayed, or
conditioned”.
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D. “Indemnify” includes indemnify, hold harmless, and defend against any loss, liability,
claim, charge, cost, or expense (including reasonable legal fees and expenses).
37. MISCELLANEOUS PROVISIONS.
A. Tenant and Landlord and their respective employees and invitees shall in all respects
operate separately and independently of each other and nothing contained herein shall be deemed in
any way to constitute Tenant and Landlord as partners or joint or co-venturers.
B. This Sublease shall be binding upon the parties hereto, their executors, administrators,
heirs, successors and assigns.
C. This Sublease shall be deemed made and shall be governed by and construed in accordance
with the substantive laws of The Commonwealth of Massachusetts without regard for its conflicts of
laws.
D. Neither this Sublease nor any provision thereof may be waived, modified, amended,
discharged or terminated, except by an instrument in writing signed by the party against which the
enforcement of such waiver, modification, amendment, discharge or termination is sought, and then
only to the extent set forth in such instrument.
E. If any term or provision of this Sublease or the application thereof to any person or
circumstance shall to any extent be held invalid or unenforceable, the remainder of this Sublease
or the application of such term or provision to other persons or circumstances shall not be
affected thereby, and each term and provision of this Sublease shall be valid and enforceable to
the fullest extent permitted by law.
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Executed under seal as of the date first set forth above.
| Landlord: Microbia Precision Engineering, Inc. |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | President & CEO | |||
| Tenant: Critical Therapeutics, Inc. |
||||
| By: | /s/ Xxxxxx X. Xxxxx | |||
| Name: | Xxxxxx Xxxxx | |||
| Title: | Chief Financial Officer and SVP of Finance and Corporate Development |
|||
