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 128 Spring Street,
Lexington, MA
02421 ("Sublessor"), and MacroChem Corporation, with an
address of 110
Hartwell Avenue, Lexington, MA 02421 ("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 110 Hartwell
Avenue,
Lexington, Massachusetts, 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:
James Warren) 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
