1
EXHIBIT 10.9
SUB-LEASE
This Sub-lease is made and entered into this 1st day of April, 1999, by
and between KENLEE PRECISION CORPORATION, hereinafter referred to as Lessee, and
FOUNTAIN PHARMACEUTICALS, hereinafter referred to as Sub-lessee, which as an
address of 0000 Xxxxx Xxxxx Xxxx, Xxxxx, Xxxxxxx 00000, and is consented to by
B.D.B.P., LTD., hereinafter referred to as Lessor.
WHEREAS, Lessor and Lessee entered into a lease dated the 10th day of
June, 1997 (hereinafter referred to as the "Lease"), a copy being attached
hereto, demising certain premises, including the premises consisting of 2,670
square feet which is located at 7219 and Xxxxx Xxxxx Xxxx, Xxxxx, XX 00000 ("the
Premises").
WHEREAS, Lessee now desires to sub-lease the Premises to sub-lessee;
and
WHEREAS, Lessor has agreed to the sub-lease;
NOW, THEREFORE, for good and valuable consideration, and for the mutual
benefits to be derived thereafter, the parties hereto agree as follows:
Lessee sub-leases the Premises to Sub-lessee, and the Lessor agrees to
permit and does hereby authorize the Lessee to sub-lease the Premises to the
Sub-lessee, in accordance with the terms as stated below:
1. The parties agree and understand that only part of the property
listed under the Lease (the "Premises") is being sub-leased to Sub-lessee. The
property not being sub-leased to Sub-lessee is described as 0000 Xxxxx Xxxxx
Xxxx, Xxxxx, XX 00000.
2. The Lessee shall be named as an additional insured party under the
Sub-lessee's liability insurance policy for the Premises, as required by the
Lease.
3. The Base Rent under this sub-lease for April 1999, through March
2000 shall be $1,613.13 per month. The base rent under this sub-lease shall be
modified on an annual basis as described in the Lease. Sub-lessee shall pay the
said rent, as modified from time to time, to Lessee on or before the due date
for monthly payments under the Lease. Sub-lessee understands that the sales tax
due by Sub-lessee, pursuant to paragraph 1.05 of the Lease, is not included in
the $1,613.13 figure, but is an additional amount due and owing under the Lease,
and to be paid by Sub-lessee.
4. Sub-lessee shall pay to Lessee the sum of $1,613.13, in order to
return Lessee's payment of the security deposit due under the Lease. The parties
agree that Lessor shall continue to hold the $1,613.13 previously paid by
Lessee, in its capacity as the security deposit described in the Lease and this
Assignment, and that the said $1,613.13 deposit held by Lessor shall be paid
over to Sub-Lessee upon termination of the lease.
5. With the signing of this document, the Sub-lessee hereby represents
and agrees that its authorized representative has read and understands the terms
of the Lease and it agrees to
1
2
comply with all terms and conditions set forth therein and assume all of
Lessee's obligations set forth therein, all as applicable to the Premises.
Sub-lessee shall indemnify, defend and hold Lessee harmless from and against any
and all claims, liabilities, damages, and other matters related to the Premises
or the Lease of the Premises. All of the terms of the Lease are hereby
incorporated by such reference thereto.
6. The term of this Sub-lease shall commence on April 1, 1999, and
terminate on March 31, 2000, with an option to review for eight months,
commencing on April 1, 2000 and ending on December 31, 2000.
7. In additional to all remedies otherwise provided by law, Lessee
shall have all rights and remedies against Sub-lessee as afforded by the Lease
to the Lessor as against the Lessee.
8. Lessor and Lessee, jointly represent that, as of the date of the
Sub-lease, the Lease between Lessor and Lessee is current and there are no
faults. Upon the commencement of the Sub-lease, Sub-lessee shall have the right
to quiet enjoyment of the demise premises, subject to the terms, conditions, and
covenants of both the Lease and this Sub-lease. Lessor's execution hereto shall
constitute the required consent set forth in Article 11 of the Lease.
9. Prior to the commencement date of the Sub-lease, Sub-lessee shall
have the right to inspect the premises in order to insure that the premises are
in good condition and without the need of any immediate repairs prior to the use
and occupancy by Sub-lessee. The payment of one thousand six hundred thirteen
dollars and thirteen cents ($1,613.13) for the security deposit as reference in
Paragraph 4 shall be made following the walk through and inspection by
Sub-lessee. Lessee additionally shall indemnify, defend and hold Sub-lessee
harmless from and against any and all claims, liabilities, damages, and other
matters based on an event occurring (or alleged to have occurred) or a condition
arising (or alleged to have arisen) before the commencement date.
10. The parties hereto acknowledge that Sub-lessee shall only be
required to pay a portion of the additional rent referenced in Paragraph 2.02 of
the Lease which shall be an amount prorated upon the total square feet
sub-leased in proportion to the total square feet set forth in the Lease.
2
3
IN WITNESS WHEREOF, Lessor, Lessee and Sub-lessee have executed this
Sub-Lease as of the day and year set forth above and the Sub-lessee assumes all
responsibilities for the Lease in its entirety.
/s/ Xxxxxxx X. Xxxxxx by Highwoods/Florida Holdings L.P., Successor
-------------------------------------------------------------------
B.D.B.P., Ltd., Lessor
/s/ Xxxxxxx X. Xxxxx, Xx.
-------------------------------------------------------------------
Kenlee Precision Corporation, Lessee
/s/ Xxxxxx X. Xxxxxxx
-------------------------------------------------------------------
Fountain Pharmaceuticals Sub-lessee
3
4
CONSENT TO SUBLEASE
Highwoods/Florida Holdings, L.P., Highwoods Properties, Inc. as agent,
successor to B.D.B.P., Ltd., ("Landlord"), as Landlord under that certain Lease
(the "Lease") dated June 10, 1997, by and between Landlord and Kenlee Precision
Corporation, ("Tenant"), as Tenant, subject to and specifically conditioned upon
the following terms and conditions hereby grants its consent to the Sublease
dated March 31, 1999, made by and between the Tenant, as sublessor, and Fountain
Pharmaceuticals, ("Subtenant"), as Subtenant, a copy of which is attached hereto
as Exhibit A (the "Sublease") covering certain premises (the "Premises") as more
particularly described in the Sublease, in the building known as Xxxxx Dairy
Business Park with an address of 0000 Xxxxx Xxxxx Xxxx, Xxxxx, Xxxxxxx, 00000.
The capitalized terms used herein and not otherwise defined shall have
the meanings ascribed thereto in the Lease. This Consent to Sublease and the
acknowledgment and acceptance of the conditions hereof may be executed in
counterparts, each of which shall be considered an original but constituting one
and the same document.
As conditions to the consent of Landlord to the Sublease, it is understood and
agreed as follows:
1. NO RELEASE. This Consent to Sublease shall in no way release the Tenant
or any person or entity claiming by, through or under Tenant, including
Subtenant, from any of its covenants, agreements, liabilities and
duties under the Lease (including, without limitation, all duties to
cause and keep Landlord and others named or referred to in the Lease
fully insured and indemnified with respect to any acts or omissions of
Subtenant or its agents, employees or invitees or other matters arising
by reason of the Sublease or Subtenant's use or occupancy of the
Premises), as the same may be amended from time to time, without
respect to any provision to the contrary in the Sublease.
2. SPECIFIC PROVISIONS OF LEASE AND SUBLEASE. This Consent to Sublease
consenting to a sublease to Subtenant does not constitute approval by
Landlord of any of the provisions of the Sublease document or agreement
thereto or therewith; nor shall the same be construed to amend the
Lease in any respect, any purported modifications being solely for the
purpose of setting forth the rights and obligations as between Tenant
and Subtenant, but not binding Landlord.
3. AMENDMENT OF SUBLEASE. Tenant and Subtenant shall not amend in any
respect the Sublease without the prior written approval of Landlord. In
no event shall any such amendment affect or modify or be deemed to
affect or modify the Lease in any respect.
4. LIMITED CONSENT. Except as otherwise set forth herein, this Consent to
Sublease does not and shall not be construed or implied to be a consent
to any other matter for which Landlord's consent is required under the
Lease, including, without limitation, any alterations under Article 8
of the Lease.
4
5
5. TENANT'S CONTINUING LIABILITY. Tenant shall be liable to Landlord for
any default under the Lease, whether such default is caused by Tenant
or Subtenant or anyone claiming by or through either Tenant or
Subtenant, but the foregoing shall not be deemed to restrict or
diminish any right which Landlord may have against Subtenant pursuant
to the Lease, in law or in equity for violation of the Lease or
otherwise, including, without limitation, the right to enjoin or
otherwise restrain any violation of the Lease by Subtenant.
6. ACCEPTANCE BY TENANT AND SUBTENANT. Tenant and Subtenant understand and
acknowledge that Landlord has agreed to execute this Consent to
Sublease based upon Tenant's and Subtenant's acknowledgment and
acceptance of the terms and conditions hereof.
7. SUBORDINATION. The Sublease is, in all respects, subject and
subordinate to the Lease, as the same may be amended. Furthermore, in
the case of any conflict between the provisions of this Consent to
Sublease or the Lease and the provisions of the Sublease, the
provisions of this Consent to Sublease or the Lease, as the case may
be, shall prevail unaffected by the Sublease.
8. ADDITIONAL RENT. Notwithstanding anything to the contrary herein,
Tenant acknowledges and agrees that Tenant will promptly pay to
Landlord throughout the Term of the Lease any Additional Rent owed to
Landlord as required under Article 2.02 and Article 2.03 of the Lease,
and otherwise comply with the provisions of Article 11 and any other
Section of the Lease which may be relevant to the Sublease. Without
limiting the generality of the foregoing, Tenant specifically agrees to
pay all of Landlord's reasonable costs, charges and expenses, including
attorneys' fees, incurred in connection with the Sublease and this
Consent to Sublease upon submission of bills therefor, and that the
failure to pay the same upon demand shall be a default under the Lease.
9. TERMINATION OF LEASE. If at any time prior to the expiration of the
term of the Sublease the Lease shall terminate or be terminated for any
reason (or Tenant's right to possession shall terminate without
termination of the Lease), and provided Subtenant is not in default
beyond applicable notice and cure periods, the Sublease, and
Subtenant's (and any permitted subtenant's or occupant's) occupancy of
the Premises shall not be disturbed and the Lease shall become a direct
lease between Landlord and Subtenant, except that Tenant's rights to
expand, renew, and terminate shall simultaneously become null and void
and of no further force or effect, as the same are personal to Tenant
and may not be assigned or sublet. Upon the demand of Landlord,
however, Subtenant agrees to execute, from time to time, documents in
confirmation of the foregoing provisions of this paragraph reasonably
satisfactory to Landlord in which Subtenant shall acknowledge such
attornment and shall set forth the terms and conditions of its tenancy.
Nothing contained in this paragraph shall be construed to impair or
modify any right otherwise exercisable by the Landlord, whether under
the Lease, any other agreement or in law.
5
6
10. SERVICES. Tenant hereby agrees that Landlord may furnish to the
Premises services requested by Subtenant other than or in addition to
those to be provided under the Lease, and xxxx the Subtenant directly
for such services for the convenience of and without notice to Tenant.
Subtenant hereby agrees to pay Landlord all amounts which may become
due for such services on the due dates therefor. If Subtenant shall
fail to do so, however, and if Tenant has been notified in advance in
writing about the furnishing of such other or additional services to
Subtenant and Tenant does not notify Landlord of its protest of same
within ten (10) days following such notice, Tenant agrees to pay such
amounts to Landlord upon demand as Additional Rent under the Lease, and
the failure to pay the same upon demand shall be a payment default
under the Lease.
11. NO WAIVER; NO PRIVITY. Nothing herein contained shall be deemed a
waiver of any of the Landlord's rights under the Lease. In no event,
however, shall Landlord be deemed to be in privity of contract with
Subtenant or owe any obligation or duty to Subtenant under the Lease or
otherwise, any duties of Landlord under the Lease being in favor of,
for the benefit of and enforceable solely by Tenant.
12. NOTICES. Subtenant agrees to promptly deliver a copy to Landlord of all
notices of default and all other notices sent to Tenant under the
Sublease, other than ministerial notices, and Tenant agrees to promptly
deliver a copy to Landlord of all such notices sent to Subtenant under
the Sublease. All copies of any such notices shall be delivered
personally or sent by United States registered or certified mail,
postage prepaid, return receipt requested, to Highwoods Properties,
Inc., 0000 Xxxxxxxx Xxxx Xxx., Xxxxx 000, Xxxxx, Xxxxxxx 00000-0000, or
to such other place or persons as Landlord or its agent may from time
to time designate.
13. RESERVATION OF RIGHTS. This Consent to Sublease shall be deemed limited
solely to the Sublease, and Landlord reserves the right to consent or
to withhold consent and all other rights under the Lease with respect
to any other matters including, without limitation, any proposed
alterations (except as otherwise set forth herein) and with respect to
any further or additional subleases, assignments or transfers of the
Lease or any interest therein or thereto including, without limitation,
a sublease or any assignment of this Sublease.
14. RIGHT TO CURE SUBTENANT DEFAULT. Tenant shall be notified in writing of
any events of default of the Lease by Subtenant in the event Landlord
intends to declare a default under the Lease as to Subtenant, and in
such event, Tenant shall have the right to timely cure such default as
set forth in the Lease.
15. ALTERATIONS AT TERMINATION. Upon termination of the Lease and Sublease,
as the case may be, Tenant and Subtenant, as the case may be, shall
leave in the Premises all tenant improvements now located within the
Premises together with any alterations or improvements described on
Subtenant's plans and specifications which have been submitted to
Landlord and which plans and specifications Landlord has in writing
approved of and consented to ("Subtenant's Work"). Any additions,
improvements, or alterations to the Premises installed by the Tenant or
Subtenant after March 31, 1999, other than Subtenant's Work, shall be
removed at Tenant's or Subtenant's cost, as appropriate, unless prior
to construction or installation, Tenant or Subtenant, as appropriate,
obtains Landlord's prior written consent (which consent shall not be
unreasonably withheld or delayed), to
6
7
leave same upon termination. All such items left in the Premises shall
be left in good condition and repair, reasonable wear and tear
excepted.
16. RELEASE OF LANDLORD. Tenant acknowledges and agrees that through the
date hereof, Landlord, its predecessors in interest, and their
respective partners, directors, officers, employees and agents have
fully and completely performed all of the obligations on their part to
be performed under the Lease, and thus Tenant has no claim or cause of
action against them under the Lease or otherwise.
17. TENANT AND SUBTENANT BOUND. By executing this Consent to Sublease,
Tenant and Subtenant acknowledge and agree to be bound by all of the
terms and conditions of Landlord's consent to the Sublease as set forth
herein.
18. NO OFFER. This Consent to Sublease is submitted on the understanding
that it will not be considered an offer and will not bind Landlord in
any way until (a) Tenant and Subtenant have duly executed and delivered
duplicate originals to Landlord and (b) Landlord has executed and
delivered one of such originals to Tenant and Subtenant.
19. DATE OF CONSENT TO SUBLEASE. For reference purposes only, this Consent
to Sublease is dated this 31st day of March, 1999.
SIGNATURE PAGE FOLLOWS
7
8
IN WITNESS WHEREOF, this Consent to Sublease has been executed on
behalf of Landlord, Tenant, and Subtenant as of the Date of this Sublease.
LANDLORD:
HIGHWOODS FLORIDA HOLDINGS, L.P.
A DELAWARE LIMITED PARTNERSHIP
BY: HIGHWOODS/FLORIDA GP CORP.,
ITS GENERAL PARTNER
WITNESS
/s/ Xxxx Xxxxx By: /s/ Xxxxxxx X. Xxxxxx
------------------------ -------------------------------
Xxxxxxx X. Xxxxxx
Xxxx Xxxxx Its: Vice President
------------------------
(Print or type name)
WITNESS Date Executed: 4/28/99
--------------------
/s/ Xxxx X. Xxxxxx
------------------------
Xxxx X. Xxxxxx
------------------------
(Print or type name)
TENANT:
WITNESS KENLEE PRECISION CORPORATION
a Maryland corporation
/s/ Xxxxxxx X. Xxxx, Xx.
------------------------
Xxxxxxx X. Xxxx, Xx. By: /s/ Xxxxxxx X. Xxxxx, Xx.
------------------------ -------------------------------
(Print or type name) Xxxxxxx X. Xxxxx, Xx.
Its: President
WITNESS
/s/ X.X. XxXxxxxxxx
------------------------
X.X. XxXxxxxxxx Date Executed:
------------------------ --------------------
(Print or type name)
SUBTENANT:
WITNESS FOUNTAIN PHARMACEUTICALS
a Delaware corporation
/s/ Xxxxx Xxxx
------------------------
Xxxxx Xxxx By: /s/ Xxxxxx X. Xxxxxxx
------------------------ -------------------------------
(Print or type name)
Its: President
WITNESS
/s/ Xxxx X. Xxxxxx
------------------------
Xxxx X. Xxxxxx Date Executed: 3/30/99
------------------------ --------------------
(Print or type name)
8
