Exhibit 10.1
SUBLEASE AGREEMENT
1. PARTIES. This Sublease Agreement, dated as of August 31, 2005 is made by
and between ActivBiotics, Inc., with an address of 000 Xxxxxx Xxxxxx,
Xxxxxxxxx, XX 00000 ("Sublessor"), and MacroChem Corporation, with an
address of 000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000 ("Sublessee").
Sublessor and Sublessee are referred to herein collectively as the
"Parties" and individually as a "Party."
2. MASTER LEASE. Sublessor is the lessee under that certain Lease Agreement
dated April 5, 2005, wherein Glenborough Properties, L.P. ("Master Lessor")
leased to Sublessor a portion of the building located at 000 Xxxxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx, containing approximately 17,277 rentable
square feet of space located on the first (1st) floor thereunder, and known
as Suite 100 (the "Master Premises"). Said lease is herein referred to as
the "Master Lease", a copy of which is attached hereto as Exhibit "A" (with
certain business terms redacted). Sublessor and Sublessee hereby agree that
this Sublease Agreement shall at all times be subordinate and subject to
the terms, provisions and conditions of the Master Lease.
Sublessee desires to sublease a portion of the Master Premises consisting
of approximately three thousand (3,000) rentable square feet shown on the
plan attached hereto as Exhibit "B" (the "Subleased Premises"), and
Sublessor has agreed to sublet the Subleased Premises to Sublessee, subject
to the terms and conditions hereof and the Master Lease.
3. WARRANTY BY SUBLESSOR. Sublessor warrants and represents to Sublessee that
the Master Lease has not been amended or modified except as expressly set
forth herein, that Sublessor is not now, and as of the Commencement Date
(as defined below) will not be, in material default or material breach of
any of the provisions of the Master Lease, and that Sublessor has no
knowledge of any claim by Master Lessor that Sublessor is in default or
breach of any of the provisions of the Master Lease.
4. TERM. The Term of this Sublease shall commence on September 1, 2005 (unless
otherwise agreed in writing) and end at 11:00 pm EST on November 30, 2005
(the "Termination Date," as the same may be extended by virtue of the
automatic extension provision set forth below). Notwithstanding that the
Term of this Sublease ends at 11 pm EST on the Termination Date, such day
shall be treated as a full day with regard to Sublessee's rent obligations
herein. If for any reason Sublessor, does not deliver possession to
Sublessee on the Commencement Date, Sublessor shall not be subject to any
liability for such failure and, the Termination Date shall not be extended.
Notwithstanding the foregoing, if Sublessor has not delivered possession to
Sublessee within ten (10) days after the Commencement Date, then at any
time thereafter and before delivery of possession, Sublessee may give
written notice to Sublessor of Sublessee's intention to cancel this
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Sublease. Said notice shall set forth an effective date for such
cancellation which shall be at least five (5) days after delivery of said
notice to Sublessor. If Sublessor delivers possession to Sublessee on or
before such effective date, this Sublease shall remain in full force and
effect. If Sublessor fails to deliver possession to Sublessee in accordance
with this Sublease, this Sublease shall thereafter be of no further force
or effect, and Sublessor shall have no further liability to Sublessee on
account of such delay or cancellation.
Sublessee shall have two (2) options to extend this Sublease each option
for an additional period of three (3) months. Sublessee may exercise each
extension option by providing Sublessor with written notice at least thirty
(30) days prior to the expiration of the original Term or the then-current
extension Term (as applicable). Notwithstanding the foregoing, Sublessor
may, at its election, by notice to Sublessee given within fifteen (15) days
after receipt of Sublessee's notice of exercise of said extension
option(s), void such exercise and require that this Sublease nevertheless
expire on the original Termination Date as set forth above or the
termination date of the first renewal option (as applicable). In the event
of such election by and notice from Sublessor, this Sublease shall expire
on the Termination Date or the termination date of the first renewal option
(as applicable) with the same effect as if Sublessee had no extension
option.
5. RENT; SECURITY DEPOSIT. Sublessee shall pay to Sublessor as rent, without
deduction, setoff, notice, or demand, at Sublessor's address as set forth
above (Attn: Xxxxx Xxxxxx) or at such other place as Sublessor shall
designate from time to time by notice to Sublessee, the sum of $22,125.00
(to be prorated for any partial months during the Term) in advance on the
Commencement Date for the entire initial Term, and shall thereafter pay the
sum of $22,125.00 on the first day of each three (3) month extension Term
for the entirety of such extension Term. In addition Sublessee shall pay a
prorated portion equal to 17.4% of Sublessor's additional rent obligations
under the Master Lease.
6. USE OF PREMISES. The Subleased Premises shall be used and occupied only for
the Tenant's Use set forth in the Master Lease, in compliance with all
applicable laws and for no other use or purpose.
7. ACCEPTANCE OF PREMISES: Sublessee agrees to accept and does accept
possession of the Subleased Premises on the Commencement Date "as is" in
the same condition as they are on the date hereof. Sublessor shall have no
obligation to perform any work or construction with respect to the
Subleased Premises as a condition to or subsequent to the commencement of
this Sublease. Sublessee shall not make any improvements to the Subleased
Premises without the express written consent of the Sublessor such consent
not to be unreasonably withheld, conditioned or delayed, and in any event
in compliance with the terms and conditions of the Master Lease. Upon the
termination of this Sublease, Sublessor and Master Sublessor shall have the
option (i) to require the Sublessee to remove any and all improvements made
to the Subleased Premises by or on behalf of Sublessee, if any, or (ii) to
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require the Sublessee to leave any and all improvements, if any,
constructed on the Subleased Premises by Sublessee.
8. ASSIGNMENT AND SUBLETTING. Sublessee shall not be permitted to assign this
sublease or further sublet all or any part of the Subleased Premises. Any
attempted assignment or subletting in violation of this section shall not
be effective and shall be a default of Sublessee hereunder.
9. SUBLESSEE'S COVENANTS AND INDEMNITY: Sublessee covenants and agrees that
Sublessee will not do anything which would constitute a default under the
provisions of the Master Lease or omit to do anything which Sublessee is
obligated to do under the terms of this Sublease which would constitute a
default under the Master Lease.
Sublessee indemnifies Sublessor against, and holds Sublessor harmless from
any loss, damage, claim, suit, or liability including reasonable attorney's
fees and costs arising out of any personal injury or property damage, by
reason of, or resulting from Sublessee's use and occupancy of the Subleased
Premises, or from Sublessee's failure so to perform and observe any of the
terms and conditions of this Sublease or the Master Lease (which are
incorporated in this Sublease), except to the extent caused by the
negligence or willful misconduct of Sublessor or its agents, employees or
contractors, as they relate to the Subleased Premises.
Sublessor covenants and agrees that Sublessor will not do anything which
would constitute a default under the provisions of the Master Lease or omit
to do anything which Sublessor is obligated to do under the terms of this
Sublease which would constitute a default under the Master Lease. Sublessor
covenants and agrees that Sublessor will not voluntarily surrender or
terminate the Master Lease except in accordance with the Master Lease in
the event of a taking or casualty, nor shall it agree to modify or amend
the Master Lease in any way that will reduce the rights or increase the
obligations of Sublessee under this Sublease in any material respect.
10. PERFORMANCE BY MASTER LESSOR: It is understood and agreed that all work to
be furnished, repairs to be made and services to be furnished to the
Subleased Premises, shall not be the responsibility of Sublessor, and
Sublessee agrees that Master Lessor is solely responsible for such pursuant
to the provisions of the Master Lease. Sublessor however agrees to use
reasonable efforts upon receipt of notice from Sublessee to cause Master
Lessor to perform its obligations under the Master Lease. Sublessor shall
have no obligation to Sublessee to perform any work, make any repairs or
furnish any utilities or services whether due to casualty or otherwise,
other than to use reasonable efforts to cause Master Lessor to perform the
same pursuant to the terms of the Master Lease.
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Sublessor shall not be liable to Sublessee, nor shall Sublessee's
obligations hereunder be impaired or the performance thereof be excused,
because of any failure or delay or default on the Master Lessor's part in
furnishing any such work or utilities or services or in making any such
repairs or for any failure of Master Lessor to comply with the terms of the
Master Lease, except that if any rent is reduced or abated under the Master
Lease, a like amount shall be abated hereunder.
In the event of failure by the Sublessee to perform any of the terms or
conditions hereof, the Sublessor may, if it shall so elect, enter upon the
Subleased Premises without terminating this Sublease and do any and all
such acts as may be necessary, proper or convenient to correct such
default; and the Sublessee agrees on demand to pay to the Sublessor all
damage and/or expenses, including but not limited to reasonable attorney's
fees, late charges and interest, incurred by Sublessor in so doing.
No waiver by the Sublessor of any breach by the Sublessee of any of the
covenants herein contained, nor any assent to any such breach, shall be
deemed a waiver of any future or other breach whatsoever.
Notwithstanding any contrary term or provision of this Sublease,
Sublessee's covenants and obligations to pay rent, additional rent, and to
perform its other obligations hereunder are absolute, unconditional, and
irrevocable obligations which are separate and independent from any of
Sublessor's covenants, obligations, warranties or representations in this
Sublease.
11. INDEMNITY AND INSURANCE. Sublessee hereby assumes all of the indemnity and
insurance obligations that the Sublessor has under the Master Lease with
respect to the Subleased Premises, to the same extent as if the Sublessee
were the lessee under the Master Lease.
12. DEFAULT: This Sublease is granted upon the condition that if Sublessee
shall fail to pay any rent or other charge due hereunder within five (5)
days of the date any rent or other amount are due or if Sublessee shall
neglect or fail promptly to perform or observe any of the other terms,
conditions or covenants contained or referred to herein and such neglect or
failure continues for more than thirty (30) days after notice from
Sublessor or, in the case of a neglect or failure which will take more than
thirty (30) days to cure, such cure is not commenced within thirty (30)
days and is diligently prosecuted to completion, but in no event shall such
cure take more than sixty (60) days, or if the Sublessee's estate hereby
created shall be taken on execution, or by other process of law, or if the
Sublessee shall be declared bankrupt or insolvent according to law, or if
any assignment shall be made of the Sublessee's property for the benefit of
creditors or a receiver appointed, then, in any of said cases
(notwithstanding any waiver or consent in a former instance), this Sublease
shall, at the option of Sublessor, terminate forthwith and the total amount
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of rent remaining unpaid under this Sublease for the entire period of said
Sublease shall immediately become due and payable, and the Sublessor
lawfully may, immediately, or at any time thereafter, and without demand or
notice, enter into and upon the Subleased Premises or any part thereof in
the name of the whole, and repossess the same as of its former estate, and
expel the Sublessee and remove the Sublessee's effects, without being
deemed guilty of any manner of trespass, and without prejudice to any
remedies which might otherwise be used for arrears of rent or proceeding
for breach of covenant, and upon entry as aforesaid this Sublease shall
terminate; and the Sublessee covenants and agrees that in case of such
termination or of termination under provision of statute by reason of
default on the part of the Sublessee, the Sublessee will pay to Sublessor
upon demand a sum equal to the rent and other payments herein specified as
to be paid at the same times and in the same installments, for so much of
the unexpired term as is represented by said installments, or at the
election of the Sublessor, which election may be made or changed at any
time, to pay to the Sublessor as damages a sum which at the time of such
termination or election equals the difference between the rental value of
the Subleased Premises and the rent and other payments herein named for the
residue of the Term.
13. OTHER PROVISIONS OF SUBLEASE. Except as may be inapplicable or inconsistent
with the provisions of this Sublease, all applicable terms and conditions
of the Master Lease are incorporated into and made a part of this Sublease,
as if Sublessor were the Lessor thereunder, Sublessee the Lessee
thereunder, and the Subleased Premises the Master Premises, and Sublessee
assumes and agrees to perform the Lessee's obligations under the Master
Lease during the Term to the extent that such obligations are applicable to
the Subleased Premises, all subject to the following exceptions:
(i) the obligation to pay the specified rent amounts to Master Lessor
under the Master Lease shall be considered performed by Sublessee
to the extent and in the amount of rent set forth in Section 5 of
this Sublease when paid to Sublessor according to the terms
herein;
(ii) Sublessee shall not be required to deposit the Security Deposit
with the Master Lessor under Section 8 of the Master Lease, but
shall deposit any security deposit required under this Sublease
(if applicable) to the Sublessor;
(iii) Sublessee may not exercise Sublessor's audit rights under
subsection 6.4.3 of the Master Lease, nor shall Sublessee request
a change in use of the Premises under subsection 9.1.1 of the
Master Lease;
(iv) Sublessee shall not have the right to terminate the Master Lease
in the event of fire, casualty or eminent domain under section 16
or section 17 of the Master Lease, nor in any other event, and
Sublessee shall not have the right to recover compensation for
condemnation under subsection 17.3;
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(v) Sublessee shall not have the right to assert any claim based on
an alleged default by Master Lessor, including without limitation
any right to cure or recover damages from such default, under
section 19 of the Master Lease;
(vi) Sublessee shall not have the right to any signage afford to
Sublessor under the Master Lease, including without limitation
under section 29 of the Master Lease;
(vii) Sublessee shall not have the right to perform Tenant Improvements
or Tenant's Work as set forth in section 37 of the Master Lease;
and
(viii) Sublessee shall not have the right to: (a) exercise Sublessor's
Option to Extend under section 38 of the Master Lease; (b)
exercise Sublessor's Right of First Offer under section 39 of the
Master Lease; or (c) exercise Sublessor's right to install,
maintain and operate a generator under section 41 of the Master
Lease.
Notwithstanding the foregoing, Sublessee shall have no obligation to (i)
cure any default of Sublessor under the Master Lease, (ii) perform any
obligation of Sublessor under the Master Lease which arose prior to the
Commencement Date and Sublessor failed to perform, (iii) repair any damage
to the Subleased Premises caused by Sublessor, (iv) remove any alterations
or additions installed within the Subleased Premises by Sublessor, (v)
indemnify Sublessor with respect to any negligence or willful misconduct of
Sublessor, its agents, invitees, employees or contractors or other
subtenants of the Building other than Sublessee, or (vi) discharge any
liens on the Subleased Premises or the Building which arise out of any work
performed, or claimed to be performed, by or at the direction of Sublessor.
Neither Sublessor nor Sublessee shall not violate any of the provisions of
the Master Lease. Neither Sublessor nor Sublessee shall not commit or
suffer any act or omission that will violate any of the provision of the
Master Lease. Sublessor shall exercise due diligence in attempting to cause
Master Lessor to perform its obligations under the Master Lease for the
benefit of Sublessee. Notwithstanding the foregoing, if the Master Lease
gives Sublessor any right to terminate the Master Lease in the event of the
partial or total damage, destruction, or condemnation of the Master
Premises or the building or project of which the Master Premises are a
part, the exercise of such right by Sublessor shall not constitute a
default or breach hereunder. Sublessee acknowledges and agrees that it
shall have no option to renew this Sublease Agreement or extend the Term
beyond the automatic extension period(s) set forth above in paragraph 4,
and shall have no right of first refusal to any additional space or
property.
14. NOTICES. All notices demands which may or are to be required or permitted
to be given by either party on the other hereunder shall be in writing. All
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notices and demands by the Sublessor to Sublessee shall be sent by Untied
States mail, postage prepaid, addressed to the Sublessee at the address set
forth below, or to such other place as Sublessee may from time to time
designate in a notice to the Sublessor. All notices and demands by the
Sublessee to Sublessor shall be sent by the Untied States mail, postage
prepaid, addressed to the Sublessor at the address set forth below, and to
such other person or place as the Sublessor may from time to time designate
in a notice to the Sublessee.
If to the Sublessor: If to the Sublessee:
------------------- -------------------
ActivBiotics, Inc. MacroChem Corporation
000 Xxxxxx Xxxxxx 000 Xxxxxxxx Xxx.
Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
With a copy to: With a copy to:
Xxxx X. Xxxxxxxx, Esq. Xxxxxxxxxxx X. Xxxx, Esq.
Xxxxxxxx, Xxxxx & Xxxxxx LLP Ropes & Xxxx LLP
00 Xxxxx Xxxxxx Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000 Xxxxxx, XX 00000
15. CONSENT BY MASTER LESSOR. This Sublease shall be of no force or effect
unless: (a) consented to by Master Lessor in writing within twenty (20)
days after execution hereof, which consent may be either in the form
attached hereto, or in a separate written consent prepared by the Master
Lessor and reasonably acceptable to both the Sublessor and Sublessee; and
(b) an executed counterpart of this Sublease Agreement has been delivered
to Master Lessor.
16. BROKERS. Sublessor and Sublessee represent and warrant that they have dealt
with no brokers in connection with this, and agree to defend, indemnify and
save each other, harmless from and against any and all claims for any
commissions arising out of this Sublease made by anyone other than those
listed herein and claiming such because of the actions of such indemnifying
party.
17. COMPLIANCE. Sublessor and Sublessee hereto agree to comply with all
applicable federal, state, and local laws, regulations, codes, ordinances
and administrative orders having jurisdiction over the parties, the Demised
Premises and the subject matter of this Sublease.
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18. LIMITATION OF LIABILITY. No director, officer, shareholder, employee,
adviser or agent of Sublessor or Sublessee shall be personally liable in
any manner or to any extent under or in connection with this Sublease. In
no event shall Sublessor, Sublessee or any of their directors, officers,
shareholders, employees, advisers or agents be responsible for any
consequential, indirect or special damages or interruption or loss of
business, income or profits.
19. ATTORNEY'S FEES. If either Sublessor or Sublessee shall bring any action or
legal proceeding for an alleged breach of any provision of this Sublease,
to recover Rent, to terminate this Sublease or otherwise to enforce,
protect or establish any term or covenant of this Sublease, the prevailing
party shall be entitled to recover as a part of such action or proceeding,
or in a separate action brought for that purpose, reasonable attorneys'
fees, court costs, and expert fees as may be fixed by the court.
-Signatures on following page-
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IN WITNESS WHEREOF, the Parties hereto have caused this Sublease Agreement to be
duly executed under seal as of the day and year first written above.
SUBLESSOR:
ActivBiotics, Inc.
a Delaware corporation
By: /s/ Xxxxxx Xxxxxx
--------------------------------------------
Its: President & CEO
-------------------------------------------
SUBLESSEE:
MacroChem Corporation
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------------------
Its: Vice President and Chief Financial Officer
-------------------------------------------
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MASTER LESSOR'S CONSENT TO SUBLEASE
-----------------------------------
The undersigned Master Lessor under the Master Lease, hereby consents in writing
to the foregoing Sublease in accordance with the provisions of Article 18 of the
Master Lease without waiver of any restriction in the Master Lease concerning
further assignment or subletting. Master Lessor certifies that, as of the date
of Master Lessor's execution hereof, Sublessor is not in default or breach of
any of the provisions of the Master Lease, that the Master Lease has not been
amended or modified except as expressly set forth in the foregoing Sublease,
that Master Lessor has been provided a fully executed counterpart of this
Sublease, and that Sublessor has complied with all other requirements for
subletting set forth in Section 18 of the Master Lease (to the extent any such
requirements have not been met or satisfied, they are hereby waived for purposes
of this Sublease).
MASTER LESSOR:
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GLENBOROUGH PROPERTIES, L.P.
A California limited partnership
By: Glenborough Realty Trust Incorporated
A Maryland Corporation
Its General Partner
By: /s/ Xxxxxx Xxxxxx
-----------------------------------------
Its: Vice President
-----------------------------------------
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Exhibit "A"
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Master Lease
[Attached]
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Exhibit "B"
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Floor Plan of Subleased Premises
[Attached]
12
