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EXHIBIT 10.1
AGREEMENT OF SUBLEASE
This Agreement made and entered into this 18th day of January 1996 by
and between Vaxcel, Inc. (hereinafter called "Sublandlord"), with principal
offices for purposes hereof being its offices at 000 Xxxxxxxxxx Xxxxxxx,
Xxxxxxxx, Xxxxxxx 00000 and SeaLite Sciences, Inc., a Georgia Corporation
(hereinafter called "Subtenant"), with principal offices at the premises to be
sublet hereunder in that certain building known as Suite 200 located at 0000
Xxxxxxxxxx Xxxxxxx, Xxxxxxxx, Xxxxxxx 00000 (the "Building").
WITNESSETH:
Whereas, Sublandlord has a right to occupy approximately 6,282 rentable
square feet in the Building under the terms of a lease dated as of November 23,
1993 and amendment dated as of January 23, 1996 (hereinafter referred to as the
"Main Lease"), between New England Mutual Life Insurance Company (hereinafter
called "Landlord"), as landlord, and, Vaxcel, Inc. as tenant, an original copy
of which has heretofore been delivered to Subtenant and is deemed incorporated
herein by reference though not physically attached.
Whereas, Sublandlord desires to sublease approximately 6,282 rentable
square feet of the premises under lease to Sublandlord, and Sublandlord has
assented to let the same to Subtenant for the term and on the conditions
hereinafter set forth.
Now, therefore, in consideration of the recitals above which are deemed
a contractual part hereof and the mutual covenants and obligations herein set
forth, the parties hereto for themselves, their permitted successors and
assigns, do hereby agree as follows:
1. Subleased Premises. Sublandlord hereby subleases to Subtenant the
premises under lease to Sublandlord containing approximately 6,282 rentable
square feet in the Building (the "Subleased Premises"), more particularly
designated and described in Exhibit "A" attached and incorporated as a part
hereof, for the term hereinafter stated and the rent herein reserved.
Subtenant hereby agrees that Subtenant shall expand into approximately 900
square feet of warehouse space (marked as "WAREHOUSE" on Exhibit "A") in
accordance with the terms and conditions of the Main Lease should said warehouse
space become available on or before March 23, 1996. Sublease rates for said
space shall be consistent with the rate per square foot used to calculate the
Base Rent in Section 3 of this Agreement. Sublandlord agrees to pass along to
Subtenant monies received from Landlord for Tenant Improvements to said space.
2. Term of Sublease. The term of the sublease created by this Agreement
of Sublease shall commence on January 23, 1996 and shall expire on January 1,
1999.
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3. Covenant to Pay Rent. In consideration of the sublease granted by
this Agreement of Sublease and as rent for the Subleased Premises, Subtenant has
agreed to pay Sublandlord a Base Rent (as defined in the Main Lease) as follows:
The sum of $3,962.90 per month (based on a rate of $7.57 per
square foot) payable in advance on the commencement date of
this sublease and on the 23rd calendar day of each successive
month thereafter until January 23, 1997 when the Base Rent
shall increase to $4,119.95 per month (based on a rate of
$7.87 per square foot) which shall remain in effect until
January 23, 1998 when the Base Rent shall increase to $4287.47
per month (based on a rate of $8.19 per square foot).
Such rental shall be payable without prior written notice or demand,
shall be equitably prorated for any partial calendar month of the sublease term,
and shall be paid to Sublandlord at its address as set forth above, or at such
other place as Sublandlord may designate, in lawful money of the United States
of America, without any deduction, set-off, or reduction.
It is the intention of the parties that the sub-rent paid to the
Sublandlord by Subtenant shall be net of all expense under the Main Lease and
that the Sublandlord's only continuing expense shall be the lease brokerage
commission as provided in Section 12 of this Agreement not withstanding
Sublandlord's responsibility to Landlord pursuant to the Main Lease and
amendment thereto. All other rent due under the Main Lease such as Additional
Rent for operating expenses, taxes, and capital costs referred to in Section 3.2
of the Main Lease shall be the responsibility of the Subtenant but shall be paid
to Sublandlord.
4. Security Deposit. Sublandlord hereby acknowledges the receipt of the
sum of $4,000 as a security deposit for the full and faithful performance of
each and every provision of this Agreement of Sublease to be performed by
Subtenant. If Subtenant shall fully and faithfully perform the provisions of
this Agreement of Sublease to be performed by it, such security deposit shall be
returned to Subtenant within 30 days after the expiration of the term of this
sublease. It is acknowledged by the parties hereto that Sublandlord shall not be
required to keep such security deposit separate from other of its operating
funds, and Subtenant shall not be entitled to any interest thereon.
The Security Deposit per Section 11.17 of the Main Lease is by and between the
Sublandlord and the Landlord and cannot be passed along to the Subtenant.
5. Nontransfer of Rights
(a) Subtenant shall not assign, mortgage, pledge,
encumber or in any manner transfer this sublease or
any part thereof, nor sublet or suffer the Subleased
Premises or any part thereof to be used by
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other without the prior written consent of Landlord
and Sublandlord. Such consent shall not be
unreasonably withheld.
(b) This subletting shall not be construed to grant
Subtenant any right afforded Sublandlord under Part
III of the Main Lease to renew or extend its term.
Sublandlord will assist Subtenant in getting the
landlord's consent to the extension term or
otherwise. Such extension will be directly between
the subtenant and the Landlord.
(c) This subletting shall also not be construed to grant
Subtenant any right afforded Sublandlord under the
Main Lease to terminate the Main Lease prior to its
expiration or any rights to Sublandlord's Security
Deposit posted under the Main Lease.
6. Relationship to Main Lease. The parties agree to the
following:
(a) Obligation under the Main Lease. Subtenant
acknowledges that it has carefully examined the Main
Lease and undertakes, assumes and agrees to timely
observe, carry out, perform and discharge in full all
terms and provisions under the Main Lease as to the
Subleased Premises, the Building and the common areas
required to be performed by Sublandlord, except as
otherwise as expressly altered herein.
(b) Subordination to Main Lease. Subtenant hereby agrees
that (i) this Agreement of Sublease is and shall
remain in all respects subject and subordinate to the
provisions of the Main Lease and the terms therein
contained and the circumstances therein contemplated
which may in the future affect its application; (ii)
Subtenant shall occupy the Subleased Premises in
accordance with the terms of the Main Lease: (iii)
Subtenant shall maintain the Subleased Premises in
accordance with the provisions of the Main Lease as
though Subtenant were the original "Tenant"
thereunder in respect to the Subleased Premises; (iv)
Subtenant shall not do or cause to be done, or suffer
any act or omit to do any act which might result in
violation of or a default under any of the terms and
conditions of the Main Lease or which might render
Sublandlord liable for any charge, cost or expense of
any kind thereunder; (v) except as may be
inconsistent with the express term of this Agreement
of Sublease, all terms, covenants and conditions in
the Main Lease shall be applicable to this sublease
as if Sublandlord was the Landlord under the Main
Lease and Subtenant was the Tenant thereunder, and,
in the case of a breach hereunder, Sublandlord shall
have all the rights and remedies against the
Subtenant as would be available to the Landlord under
the Main Lease; (vi)
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Subtenant does hereby indemnify and agree to hold
Sublandlord and Landlord harmless of, from and
against any and all liability, loss, damage, suits,
penalties, claims, demands and judgments of every
kind or nature (including without being limited
thereto, reasonable attorneys fees and expenses of
defense by reason thereof) arising from the use or
occupancy of the Subleased Premises or of any
business conducted therein, or from any work or thing
whatsoever done or any conditions created by or any
act of omission of Subtenant, its employees, agents,
contractors, invitees, or licensees, in or about the
Subleased Premises, or any other part of the Building
of which it is a part; (vii) Subtenant undertakes to
comply with all reasonable rules and regulations
promulgated either by Landlord or Sublandlord
concerning the occupancy of the Subleased Premises
and use of the Common Areas; and (viii) Subtenant
shall not allow any liens to be placed against the
property.
(c) Termination of Main Lease. In the event of and upon
termination or cancellation of the Main Lease
pursuant to the terms and provisions thereof, this
sublease shall automatically cease and terminate.
Landlord and Sublandlord represent that the Main
Lease is in full force and no default known to
Sublandlord exists thereunder. Sublandlord undertakes
that during the term of this sublease it will fully
and faithfully perform the terms and conditions of
the Main Lease on its part to be performed thereunder
including payment of rent and additional rent. Should
the lease be terminated because of the Landlord's
default to its mortgagee, the Sublandlord shall have
no obligation or liability to the Subtenant. Should
the Landlord default under the Main Lease, costs of
curing such fault shall be born equally by
Sublandlord and Subtenant.
(d) Entry and Inspection. Sublandlord shall have the same
right to enter the Subleased Premises as provided the
Landlord by the provisions of the Main Lease.
(e) Undertakings of Landlord. Subtenant shall be entitled
to the services and repairs which Landlord is and may
be obliged to furnish or make to or in the Subleased
Premises pursuant to the terms of the Main Lease.
Sublandlord shall in no event be liable to Subtenant,
nor shall the obligations of Subtenant hereunder be
impaired, or the performance thereof excused, because
of any failure or delay on the part of Landlord in
furnishing such services or in making such repairs
unless such failure or delay results from Sublandlord
being in default under the Main Lease. If Landlord
shall default in any of the obligations to
Sublandlord with respect to
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the Subleased Premises, Subtenant shall be entitled
to participate with Sublandlord in the enforcement of
the rights of Sublandlord against Landlord. In this
connection, and solely and exclusively for such
purposes, the rights of Sublandlord under the Main
Lease are conferred upon Subtenant and Subtenant is
subrogated to such rights to the extent that
enforcement thereof is required in regard to the
Subleased Premises, except that any cost of
enforcement shall be borne exclusively by Subtenant.
7. Use of the Subleased Premises. Subtenant shall employ and occupy the
Subleased Premises for the research and development of diagnostic test kits,
luminescent research products and for other purposes permitted under the Main
Lease and for no other purpose. Subtenant agrees to comply with the provisions
of Section 7.7 of the Main Lease regarding Environmental Assurances. Solvents,
acids and bases normally used by Subtenant in the course of its business are
attached and incorporated as a part hereof as Exhibit "B". The volume of
individual organic solvents, acids and bases is to be stored in small volumes of
four liters or less.
8. Default by Subtenant. If Subtenant shall default in the performance
of any of the terms, covenants, conditions or agreements contained in this
Agreement of Sublease or shall violate or otherwise fail to comply with any of
the terms, covenants, and conditions of the Main Lease as undertaken herein by
Subtenant to all intents and purposes as if Subtenant were the original "Tenant"
thereunder as to the Subleased Premises, or shall file a petition under any
applicable bankruptcy laws or regulations, by being adjudicated a bankrupt of
insolvent or shall make any assignment for the benefit of creditors or have a
receiver or trustee appointed to take charge of its business operations (except
as limited by applicable provision of the Bankruptcy Code of 1978, as amended),
the Sublandlord shall be entitled (i) to invoke any or all of the remedies which
would be available to Landlord under the Main Lease in the event of a default by
Sublandlord under its provisions, and (ii) to pursue any other remedy at law or
in equity available to Sublandlord, provided, however, that no remedy may be
invoked or pursued in the case of an event of default in the performance of any
of the terms, conditions or agreements contained in this Agreement of Sublease
or the Main Lease (other than the payment of the rent, or any other charges to
be paid by Subtenant) unless such event of default shall continue uncured for a
period of ten (10) days after written notice specifying the default complained
of has been delivered by Sublandlord to Subtenant at the Premises or at its
address indicated above.
9. Repairs, Services and Insurance. The parties agree as follows:
(a) Repairs. Sublandlord shall not be obligated to make
repairs or provide any services or utilities
whatsoever in or to the Subleased Premises as it
relates to this Agreement between Sublandlord and
Subtenant.
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(b) Insurance. Subtenant shall at its own cost and
expense keep in force during the entire term of the
sublease created by this Agreement of Sublease
policies of insurance, including comprehensive
general liability insurance, in the amounts required
under the Main Lease and in which Sublandlord and
Landlord shall be included as additional named
insureds.
10. Condition and Care of Subleased Premises. Except as herein
provided, the Subleased Premises are received and accepted "as is" and in the
state and physical condition thereof on the date hereof. On Expiration Date or
on earlier termination as herein provided, Subtenant shall surrender the
Subleased Premises broom clean and in good repair and as required by Section
7.1(b) of the Main Lease. Subtenant shall not be entitled to own or remove
Sublandlord's personal property or trade fixtures referred to in Section 5.2(a)
of the Main Lease.
11. Condition Precedent to Operation of Sublease. The obligations of
Sublandlord and Subtenant under this Agreement of Sublease are subject as a
condition precedent to prior written approval and ratification by Landlord, as
evidenced by its signature below.
12. Brokerage. Subtenant represents and warrants that it has been
represented by Wm. Xxxxxxx & Co. Sublandlord has been represented by Xxxxxxx &
Wakefield of Georgia, Inc. Commissions to these firms shall be paid in
accordance with a separate agreement between the parties and shall be paid by
Sublandlord and Subtenant.
13. Holdover. If Subtenant holds over in occupancy of the Premises
after the expiration of the Term, Subtenant shall at the election of Sublandlord
become a subtenant at sufferance subject to the terms and conditions herein
specified, so far as applicable. Subtenant shall pay rent during the holdover
period, at a base rental rate equal to twice the Base Rent in effect at the end
of the Term, plus the amount of Subtenant's Share of Expenses then in effect and
all other costs payable by Subtenant under this Sublease. Subtenant shall also
be liable for all damages sustained by Sublandlord and Landlord on account of
such holding over.
14. Subtenant Improvements. Subtenant shall comply with Article V of
the Main Lease in making any alterations, additions, installations, substitutes
or improvements ("Alterations") in and to the Premises. Subtenant shall not make
any Alterations without fast obtaining Landlord's written consent. Sublandlord
agrees to credit Subtenant with Landlord's allowance for improvements to the
expansion space as provided in Article AP7 of the Main Lease. Subtenant agrees
to reimburse Sublandlord the sum of $2,444 representing its share of the cost of
installing additional doors in the rear of the Premises.
Such payment shall be made upon completion of the work.
15. Miscellaneous. This Agreement of Sublease contains the entire
agreement of the parties in respect to the transactions contemplated hereby,
supersedes all prior
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agreements or understandings, and may not be altered or modified in any way
unless such change or modification is in writing and signed by the party to be
bound. The headings of paragraphs of this Agreement of Sublease are for
convenience only and are not intended to be used in construing the intentions of
the parties. Each covenant and agreement in this sublease is intended to be and
shall be construed as separate and independent. Time is of the essence of the
provisions contained in this Agreement of Sublease, and if any provisions or
part thereof shall to any extent be invalid, the application of such provision
or part thereof, other than that which is so invalid, shall remain unaffected
and fully enforceable.
16. Jurisdiction. This Sublease shall be construed, governed and
enforced according to the laws of the state of Georgia.
In witness whereof, Sublandlord and Subtenant have each executed and
delivered this Agreement of Sublease in quadruplicate, each being deemed an
original copy, as of the day and year first above written.
SUBLANDLORD
VAXCEL, INC.
By:__________________
Title:________________
SUBTENANT:
SEALITE SCIENCES, INC.
By:___________________
By:__________________
Secretary
[Affix corporate seal]
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CONSENT OF LANDLORD
The undersigned, Regency Holdings, Inc., a Georgia corporation, the Landlord
under the Lease Agreement attached hereto as Exhibit "A", pursuant to the
provisions of said Lease Agreement, does hereby provide evidence and confirm its
approval of the Sublease of said Lease from Vaxcel, Inc. (hereinafter referred
to as "Sublandlord") to SeaLite Sciences, Inc. (hereinafter referred to as
"Subtenant") under the following conditions:
1. This consent shall apply to the primary term of the Lease Agreement.
2. This consent shall not relieve Sublandlord of any liability under said Lease,
shall not affect the terms and conditions of the Lease, nor shall this consent
be deemed a waiver by the undersigned of Sublandlord's obligation to obtain the
Landlord's consent as to any subsequent transfer of said Lease.
3. Landlord, in granting this consent, shall under no circumstances be held
liable for the payment of any brokerage commissions earned as a result of the
subletting of the premises. Sublandlord agrees to indemnify Landlord from any
and all losses and expenses, including reasonable attorneys fees, resulting from
such a commission suit or action filed against Landlord.
LANDLORD:
Regency Holdings, Inc.
a Georgia corporation
By: Chatham Road, L.L.C.
a Georgia limited liability company,
Authorized Agent
By:
-------------------
Xxxxxx Xxxxxxxx III
Manager
Date:
------------------
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EXHIBIT "A"
PREMISES
[Diagram]
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Exhibit "B"
NAME CAS#
Folin and Ciocalteu's Phenol Reagent
1,2 - Dichloroethane 107-06-2
Diethanolamine 11-42-2
Ethylenediamine 107-15-3
sec-Butanol 78-92-2
Ethylene Glycol 107-21-1
Borane-pyridine complex 110-51-0
Solium Methoxide 124-41-4
Isobutyl Chloroformate 543-27-1
Formamide 75-12-7
Ethanolamine 141-43-5
Acetic Anhydride 108-24-7
Tetrahydrofuran 109-99-9
Formaldehyde Solution 50-00-0
Activated Carbon 00000-00-0
1 Propanol 71-23-8
Acetone (Optima) 67-64-1
Phenol 108-95-2
EthylAcetate 141-78-6
2-Propanol 67-66-0
Chloroform 67-66-3
Toluene (Optima) 108-88-3
Ethyl Alcohol 64-17-6
Methanol 67-56-1
Reagent Alcohol
Pyridine 110-86-1
Sulfuric Acid 7664-93-9
Hydrochloric Acid 7647-01-1
Acetic Acid, Glacial 64-19-7
0-Phosphoric Acid 85% 7664-38-2
Formic Acid 64-18-6
Ammonium Hydroxide 1336-21-6
Nitric Acid 7697-37-2
Uranylacetate Dihydrate 541-09-3
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