SUBLEASE AGREEMENT

 

                                                                    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