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Title: |
Sublease Agreement |
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Entities: |
BioSante Pharmaceuticals, Inc.; First National Bank of Chicago; LaSalle Bank, NA |
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Date: |
2001 |
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Size: |
Preview shows 34KB of 221KB total |
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Price: |
$86 |
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ID: |
#285756 |
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SUBLEASE AGREEMENT
This Sublease Agreement is made this 29th day of August 2001, by and between
ICON InfoSystems, Inc., an Illinois corporation (hereinafter referred to as
"Tenant" or "Sub-Landlord") and BioSante Pharmaceuticals, Inc., a Delaware
corporation ("Sub-Tenant").
RECITALS
A. Sub-Landlord currently occupies Suite 280 of the building commonly
known as 111 Barclay Boulevard Building in Lincolnshire Corporate
Center, Lincolnshire, Illinois, pursuant to that certain Office Lease
Agreement dated February 11, 1998 by and between Tenant and American
National Bank and Trust Company of Chicago, as Trustee under Trust No.
113370-03 (now LaSalle Bank N.A., as successor trustee aforesaid, being
hereafter referred to as "Landlord"), which was amended by the same
parties by a First Amendment to Lease dated October 1, 1999, and be a
Second Amendment to Lease dated December 23, 1999 (said Lease, as
amended, being hereafter referred to as "Prime Lease").
B. Sub-Tenant desires to Sublease said Suite 280 from Sub-Lessor upon the
terms and conditions set forth below.
Therefore, in consideration of the mutual undertakings hereinafter set
forth and other good and valuable consideration, receipt of which is
hereby acknowledged, the parties hereto hereby as follows:
1. DEFINITIONS:
For the purpose of this Sublease Agreement, the following terms shall
have the following meanings:
a. SUBLEASED PREMISES: Suite 280, 111 Barclay Boulevard Building
in the Lincolnshire Corporate Center referred to in the Prime
Lease and shown on Exhibit A attached hereto.
b. SUBLEASE TERM: A period of time beginning on the Sublease
Commencement Date and ending on the Expiration Date.
c. SUBLEASE COMMENCEMENT DATE: September 1, 2001. Notwithstanding
anything contained herein to the contrary, the Sublease
Commencement Date shall not be deemed to occur unless and
until: (a) this Sublease has been fully executed by all
parties hereto, and (b) the Landlord consents to same in
writing.
d. RENT PAYMENT COMMENCEMENT DATE: The Sublease Commencement
Date.
e. EXPIRATION DATE: December 31, 2003.
f. RENT: $6,219.08 per month, gross.
{Page}
g. SUBLEASE PAYMENT ADDRESS: ICON InfoSystems, Inc., Suite 110,
111 Barclay Boulevard, Lincolnshire, Illinois 60069.
h. USE: The Subleased Premises may be used for general business
offices.
i. SUBLEASE: This Sublease Agreement.
2. SUBLEASED PREMISES:
Sub-Landlord does hereby sublease to Sub-Tenant and Sub-Tenant hires
and takes from Sub-Landlord the Subleased Premises as defined in
Section l.a.
3. SUBLEASE TERM:
The Sublease Term shall be as described in Section 1.b.
4. PRIME LEASE:
Sub-Landlord represents that a true and complete copy of the Prime
Lease is attached hereto as Exhibit B and such Prime Lease has not been
further amended or modified and remains in full force and effect. All
terms, covenants and conditions of the Prime Lease are incorporated
herein by reference, with the same force and effect as if set forth at
length herein, and shall be binding upon both Sub-Landlord and
Sub-Tenant. This sublease and all of the rights of Sub-Tenant hereunder
with respect to the Premises are subject to the terms, conditions and
provisions of the Prime Lease. Sub-Tenant hereby assumes and agrees to
perform faithfully and be bound by all of Sub-Landlord's obligations,
covenants, agreements and liabilities under the Prime Lease (except
that Sub-Tenant shall not be obligated to pay any Base Rent or
Additional Rent under Sections 1 or 2 of the Prime Lease); provided,
however in no event shall Sub-Tenant be responsible for the restoration
of the Premises to any condition other than the condition same is on
Sublease Commencement date; normal wear and tear and damage and/or loss
by casualty or condemnation excepted..
(A) Without limitation of the foregoing:
(i) Sub-Tenant shall not make any changes, alterations or
additions in or to the Premises except as otherwise
expressly provided herein;
(ii) If Sub-Tenant desires to take any other action and
the Prime Lease would require that Sub-Landlord
obtain the consent of Landlord before undertaking any
action of the same kind, Sub-Tenant shall not
undertake the same without the prior written consent
of Sub-Landlord. Sub-Landlord may condition its
consent on the consent of Landlord being obtained and
may require Sub-Tenant to contact Landlord directly
for such consent; provided, however, where consent is
so required, Sub-Landlord will not unreasonably
withhold, condition, or delay its consent, and
Sub-Landlord will reasonably assist Sub-Tenant in
pursuing such consent from the Landlord.
(iii) Sub-Landlord shall have all other rights, and all
privileges, options, reservations and remedies,
granted or allowed to, or held by, Landlord
{Page}
under the Prime Lease; and Sub-Tenant shall be
entitled to all of Sub-Landlord's rights and benefits
as "Tenant" under the Prime Lease, except as
otherwise stated herein.
(iv) Sub-Tenant shall not do anything or suffer or permit
anything to be done which could result in a default
under the Prime Lease or permit the Prime Lease to be
cancelled or terminated.
(v) Sub-Tenant shall not assign, mortgage, pledge,
hypothecate or otherwise transfer or permit the
transfer of this Sublease or any interest of
Sub-Tenant in this Sublease, by operation of law or
otherwise, or permit the use of the Premises or any
part thereof by any persons other than Sub-Tenant and
Sub-Tenant's employees, or sublet the Premises or any
part thereof,
(vi) Neither rental nor other payments hereunder shall
abate by reason of any damage to or destruction of
the Premises, the premises subject to the Prime
Lease, or the Building or any part thereof, unless,
and then only to the extent that, rental and such
other payments actually abate under the Prime Lease
with respect to the Premises on account of such
event.
(vii) In the event of any conflict between the terms,
conditions and provisions of the Prime Lease and of
this Sublease, the terms, conditions and provisions
of this Sublease shall, in all instances, govern and
control; with respect to Sub-Tenant's and
Sub-Landlord's relationship hereunder.
Notwithstanding anything contained herein to the
contrary, Sub-Tenant shall not be responsible for any
of Sub-Landlord's financial or other obligations
arising before the Sublease Term, except as otherwise
stated herein.
(B) It is expressly understood and agreed that Sub-Landlord does
not assume and shall not have any of the obligations or
liabilities of Landlord under the Prime Lease and that
Sub-Landlord is not making the representations or warranties,
if any, made by Landlord in the Prime Lease. With respect to
work, services, repairs and restoration or the performance of
other obligations required of Landlord under the Prime Lease,
Sub-Landlord's sole obligation with respect thereto shall be
to request the same, upon written request from Sub-Tenant, and
to use reasonable efforts to obtain the same from Landlord.
Sub-Landlord shall not be liable in damages, nor shall rent
abate hereunder, for or on account of any failure by Landlord
to perform the obligations and duties imposed on it under the
Prime Lease. In the event Sub-Landlord is entitled to any
abatement, offset, or the like under the Lease, Sublandlord
shall be entitled to same as to this Sublease.
5. RENT PAYMENT:
Sub-Tenant shall pay to Sub-Landlord during the Sublease Term, Rent as
defined in Section 1.f. Rent shall be paid monthly in advance. The
payment for the first month of the Sublease Term shall be due five days
prior to the Sublease Commencement Date; and
{Page}
subsequent payments shall be due on the fifth day prior to the first
day of each month thereafter during the Sublease Term.
6. UTILITIES:
Electricity is currently separately metered and Sub-Tenant shall
promptly pay all charges for electricity used during the Sublease Term.
7. INSURANCE:
Sub-Landlord agrees to maintain the insurance of the kinds and amounts
required to be maintained by Sub-Landlord as tenant under Prime Lease
and that it shall name Sub-Tenant as an additional named insured.
Sub-Landlord will provide Sub-Tenant with copies of the policies or
certificates evidencing that such insurance is in full force and effect
and stating the terms thereof.
8. DESTRUCTION OR CONDEMNATION:
In the event that the Subleased Premises are (a) damaged or destroyed
by fire, explosion or any other casualty or taken by eminent domain (or
by deed in given lieu of condemnation), and (b) as a result cannot be
reasonably used by Sub-Tenant, Sub-Tenant may terminate the Sublease by
giving written notice thereof to Sub-Landlord within thirty (30) days
of the occurrence of either such event. In no event, however, shall
tenant share in any award whatsoever.
9. DEFAULT BY SUB-TENANT:
a. Upon the happening of any of the following:
(i) Sub-Tenant fails to pay any Base Rent or Additional
Rent within five (5) days after the date it is due
except that no more frequently than twice in any
calendar year, Tenant shall be entitled to 5 days'
prior notice of non-payment during which time it may
cure such non-payment;
(ii) Sub-Tenant fails to pay any other amount due from
Sub-Tenant hereunder and such failure continues for
five (5) days after notice thereof from Sub-Landlord
to Sub-Tenant;
(iii) Sub-Tenant fails to perform or observe any other
covenant or agreement set forth in this Sublease and
such failure continues for thirty (30) days after
notice thereof from Sub-Landlord to Sub-Tenant;
(iv) any other event occurs which results from the action
or failure to act by Sub-Tenant (as opposed to
Sub-Landlord) which would constitute a Default (which
is defined in the Prime Lease as a default after the
expiration of applicable cure periods) under the
Prime Lease if it involved Sub-Landlord or the
premises covered by the Prime Lease:
Sub-Tenant shall be deemed to be in default hereunder, and Sub-Landlord may
exercise, without limitation of any other rights and remedies available to it
hereunder or at law or in equity, any
{Page}
and all rights and remedies of Landlord set forth in the Prime Lease in the
event of a default by Sub-Landlord thereunder, but only to the extent applicable
hereunder.
b. In the event Sub-Tenant fails or refuses to make any payment
or perform any covenant or agreement to be performed hereunder
by Sub-Tenant, Sub-Landlord may make such payment or undertake
to perform such covenant or agreement (but shall not have any
obligation to Sub-Tenant to do so). In such event, amounts so
paid and amounts expended in undertaking such performance,
together with all direct, actual, and reasonable costs,
expenses and attorneys' fees incurred by Sub-Landlord in
connection therewith, shall be additional rent hereunder.
10. WAIVER OF CLAIMS AND INDEMNITY:
a. Sub-Tenant hereby releases and waives any and all claims
against Landlord and Sub-Landlord and each of their respective
officers directors, partners, agents and employees for injury
or damage to person, property or business sustained in or
about the Building, the premises subject to the Prime Lease,
or the Premises by Sub-Tenant other than by reason of gross
negligence or willful misconduct and except in any case which
would render this release and waiver void under law.
b. Sub-Landlord hereby releases and waives any and all claims
against Sub-Tenant and its officers, directors, partners,
agents and employees for injury or damage to person, property
or business sustained in or about the Building, the premises
subject to the Prime Lease, or the Premises by Sub-Landlord
other than by reason of gross negligence or willful misconduct
and except in any case which would render this release and
waiver void under law.
c. Sub-Tenant agrees to indemnify, defend and hold harmless
Landlord and its beneficiaries, Sub-Landlord and the managing
agent of the Building and each of their respective officers,
directors, partners, agents and employees, from and against
any and all claims, demands, costs and expenses of every kind
and nature, including attorneys' fees and litigation expenses,
arising from Sub-Tenant's specific use of the Premises,
Sub-Tenant's construction of any leasehold improvements in the
Premises or from any breach or default on the part of
Sub-Tenant in the performance of any agreement or covenant of
Sub-Tenant to be performed or performed under this Sublease or
pursuant to the terms of this Sublease, or from any negligence
or willful misconduct of Sub-Tenant or its agents, officers,
employees, guests, servants, invitees or customers in or about
the Premises. In case any such proceeding, as aforesaid, is
brought against any of said indemnified parties. Sub-Tenant
covenants, if requested by Sub-Landlord, to defend such
proceeding at its sole cost and expense by legal counsel
reasonably satisfactory to Sub-Landlord.
11. SECURITY DEPOSIT:
Sub-Tenant shall deposit with Sub-Landlord no later than August 29,
2001, Eighteen Thousand Six Hundred Fifty-seven and 25/100 Dollars
($18,657.25) as security for the full and faithful performance of every
provision of this Sublease to be performed by Sub-
{Page}
Tenant. If Sub-Tenant defaults with respect any provision of this
Sublease, including, but not limited to, the provisions relating to the
payment of rent, Sub-Landlord may use, apply or retain all or any part
of said security deposit for the payment of any rent and any other sum
in default, or for the payment of any other amount which Sub-Landlord
may spend or become obligated to spend by reason of Sub-Tenant's
default or to compensate Sub-Landlord for any other direct and actual
loss or damage which Sub-Landlord may suffer by reason of Sub-Tenant's
default. If Sub-Tenant shall fully and faithfully perform every
provision of this Sublease to be performed by it, said security deposit
or any balance thereof shall be returned to Sub-Tenant within thirty
(30) days after the expiration of the term and Sub-Tenant's vacation of
the Premises. Nothing herein shall be construed to limit the amount of
damages recoverable by or any other remedy to Sub-Landlord. Tenant may
substitute a Letter of Credit for the Security Deposit (in which event
the Sub-Landlord, upon receipt of the Letter of Credit shall return the
cash security deposit to Sub-Tenant), provided that the expiration date
thereof is no later earlier than 30 days following the expiration of
the Sublease Term, is in the face amount of $18,657.25, is a "clean"
letter of credit payable to Sub-Landlord on demand and in form and
drawn on a bank reasonably acceptable to Sub-Landlord. Failure to
deposit the Security Deposit (or Letter of Credit) by August 29, 2001
shall constitute Sub-Tenant's default hereunder and Tenant shall not be
permitted to occupy the Premises.
12. PARKING:
Sub-Tenant shall be permitted exclusive use of two (2) of the exterior
reserved parking spaces so allocated to Sub-Landlord under the Prime
Lease. Sub-Tenant shall promptly pay all costs for signage and
installation.
13. BROKERS:
The parties warrant to each other that neither has used the services of
any broker in connection with this Sub-Lease except for Van Vlissingen
and Co. Sub-Landlord shall pay all of Van Vlissingen's commissions in
connection with this Sub-Lease per Sub-Landlord's contract with Van
Vlissingen and Co. Each of the parties ("Indemnifying Party") shall
indemnify the other party and shall hold said other party harmless
against any and all other claims for brokerage commissions claimed to
have arisen through the dealings or activities of said Indemnifying
Party.
14. RECITALS: The Recitals set forth above are incorporated in and made
apart of this Sublease.
15. LANDLORD'S CONSENT: This Sublease is subject to and contingent upon the
Landlord Consenting hereto as provided in paragraph 13 of the Prime
Lease.
16. REPRESENTATIONS AND WARRANTIES OF SUB-LANDLORD. In addition to the
other representations and warranties of Sub-Landlord hereunder,
Sub-Landlord represents and warrants to Sub-Tenant that: (a) neither
Sub-Landlord nor, to the best of Sub-Landlord's knowledge, Landlord is
in default under the terms of the Lease; and (b) there is no known
circumstances existing under which Sub-Landlord or Landlord may be
deemed in default pursuant to the Lease merely upon the service of
notice or passage of time, or both.
{Page}
17. COVENANT OF QUIET ENJOYMENT. So long as Sub-Tenant is not in default
under this Sublease beyond all applicable cure periods, Sub-Landlord
shall not interfere with Sub-Tenant's uses and enjoyment of, or access
to, the Premises.
18. NOTICES. Notices and communications ("Notices") required or permitted
to be given shall be mailed, by certified mail or registered United
State mail, postage prepaid; sent via facsimile followed by submission
of the original; or delivered (either personal delivery or delivery by
private express courier service such as Federal Express).
Address for Notices:
SUB-LANDLORD:
ICON InfoSystems, Inc.
Suite 110
111 Barclay Boulevard
Lincolnshire, Illinois 60069
SUB-TENANT
BioSante Pharmaceuticals, Inc.
Suite 280
111 Barclay Boulevard
Lincolnshire, IL 60069
with a copy to:
Gary I. Levenstein
Ungaretti & Harris
3500 Three First National Plaza
Chicago, Illinois 60602
{Page}
The addresses for Notices for a party may be changed by that party by written
notice to the other party in accordance with this Paragraph. Notices sent in
accordance with this Paragraph shall be deemed effective upon receipt or on the
date of first refusal to accept delivery of such notice.
Agreed by the Parties:
BIOSANTE PHARMACEUTICALS, INC. ICON INFOSYSTEMS, INC.
/s/ Stephen M. Simes By: /s/ Charles Dorfman
---------------------------------- -------------------------------
By: Stephen M. Simes Charles Dorfman
Its: President & CEO Its: President
Received and Approved: Van Vlissingen and Co.
By:
-------------------------------
{Page}
EXHIBIT A
SUBLEASED PREMISES
{Page}
EXHIBIT B
PRIME LEASE
{Page}
CONSENT TO SUBLEASE
This Agreement, made this 29th day of August, 2001 by and among
LaSalle Bank National Association, not personally but as Successor Trustee to
American National Bank and Trust Company of Chicago under Trust Agreement
dated January 1, 1991 and known as Trust No. 11-3370-03 ("Landlord"), ICON
InfoSystems, Inc., an Illinois corporation ("Tenant") and Biosante
Pharmaceuticals, Inc., a Delaware corporation ("Subtenant").
WITNESSETH:
WHEREAS, Landlord and Tenant are parties to a written lease dated
February 11, 1998, as amended (the lease as heretofore amended herein called
the "Lease"), under which Lease Landlord demised to Tenant certain premises
known as Suites 280 and 110 in the building located at 111 Barclay Boulevard,
Lincolnshire, Illinois (the "Premises"); and
WHEREAS, Tenant and Subtenant have entered into the sublease (the
"Sublease") attached hereto as Exhibit A for Suite 280 of the Premises
(herein called the "Subleased Premises") and have requested Landlord's
consent to the Sublease; and
WHEREAS, Landlord is willing to consent to the Sublease on the terms
and conditions hereinafter provided.
NOW, THEREFORE, in consideration of the mutual covenants and
conditions contained herein, the parties hereto agree as follows.
1. CONSENT. Landlord hereby consents to the Sublease subject to
the terms and conditions of this Agreement all of which shall to the extent
not otherwise reflected in the Sublease, be deemed incorporated in the
Sublease.
2. USE OF SUBLEASED PREMISES. Subtenant will use and occupy the
Premises for the purposes set forth in the Lease and shall not use or occupy,
or permit the use or occupancy of, the Subleased Premises or any part
thereof, for any purpose other than such purpose or in any manner which, in
Landlord's reasonable judgment, materially adversely shall affect or
interfere with any services required to be furnished by Landlord or Tenant or
with the proper and economical rendition of any such service.
3. SUBTENANT ALTERATIONS. No alterations shall be made by
Subtenant in the Subleased Premises without the prior written consent of
Landlord pursuant to and in accordance with the provisions of the Lease.
4. WAIVER OF CERTAIN CLAIMS; INDEMNITY BY SUBTENANT.
a. To the extent not expressly prohibited by law,
Subtenant releases Landlord and its beneficiaries, and their agents,
servants, and employees, from and waives all claims for damages to
person or property sustained by the Subtenant or by any occupant of
the Subleased Premises, or by any other person, resulting directly
or indirectly from fire or other casualty, cause, or any existing or
future condition, defect, matter, or thing in or about the Subleased
Premises, or any part of it, or from any equipment or
{Page}
appurtenance therein, or from any accident in or about the Subleased
Premises, or from any act or neglect of any tenant or other occupant
of the building located on the Subleased Premises or any part
thereof or of any other person. The foregoing release shall not
operate as a release of Landlord from liability for the negligent or
intentionally wrongful conduct of Landlord or its agent or
employees. This Paragraph shall apply especially, but not
exclusively, to damage caused by water, snow, frost, steam,
excessive heat or cold, sewerage, gas, odors, or noise, or the
bursting or leaking of pipes or plumbing fixtures, broken glass,
sprinkling or air conditioning devices or equipment, or flooding of
basements, and shall apply without distinction as to the person
whose act or neglect was responsible for the damage and whether the
damage was due to any of the acts specifically enumerated above, or
from any other thing or circumstance, whether of a like nature or of
a wholly different nature. Subject to Section 5(a), if any damage to
the Subleased Premises or any equipment or appurtenance therein,
whether belonging to Landlord or to other tenants or occupants or
otherwise, results from any negligent or wrongful acts of the
Subtenant, its employees, agents, or invitees, Subtenant shall be
liable therefor and Landlord may, at its option, repair such damage
and Subtenant shall upon demand by Landlord reimburse Landlord for
all reasonable costs of such repairs and damages in excess of
amounts, if any, paid to Landlord under insurance covering such
damages. All personal property belonging to the Subtenant or any
occupant of the Subleased Premises that is in the Subleased Premises
shall be there at the risk of the Subtenant or other person only and
Landlord shall not be liable for damage thereto or theft or
misappropriation thereof
b. To the extent not expressly prohibited by law, Subtenant
agrees to hold Landlord and its beneficiaries, and their agents,
servants, and employees, harmless and to indemnify each of them
against claims and liabilities, including reasonable attorneys'
fees, for injuries to all persons and damage to or theft or
misappropriation or loss of property occurring in or about the
Subleased Premises arising from Subtenant's negligence or wrongful
acts or from any breach or default on the part of Subtenant in the
performance of any covenant or agreement on the part of Tenant to be
performed pursuant to the terms of this Agreement or the Sublease or
due to any other act or omission of the Subtenant, its agents, or
employees.
5. SUBROGATION AND INSURANCE.
a. Landlord and Subtenant agree to have all physical damage or
material damage insurance which may be carried by either of them,
and Subtenant agrees to have all business interruption insurance
which it carries, if any, endorsed to provide that any release from
liability of, or waiver of claim for, recovery from the other party
entered into in writing by the insured thereunder prior to any loss
or damage shall not affect the validity of said policy or the right
of the insured to recover thereunder and providing further that the
insurer waives all rights of subrogation which such insurer might
have against the other party. Without limiting any release or waiver
of liability or recovery contained in any other section of this
Agreement, but rather in confirmation and furtherance thereof, each
of the parties hereto waives all claims for recovery from the other
party for any loss or damage to any of its property or damages as a
result of business interruption. Notwithstanding the foregoing or
anything contained in this
2
{Page}
Agreement to the contrary, any release and any waiver of claims
shall not be operative, nor shall the foregoing endorsements be
required, in any case where the effect of such release and waiver is
to invalidate insurance coverage or increase the cost thereof
(provided that, in the case of increased cost, the other party shall
have the right, within ten (10) days following written notice, to
pay such increased cost keeping such release and waiver in full
force and effect).
b. Subtenant shall carry insurance during the entire term of
the Sublease insuring Subtenant and Landlord and Landlord's agents
and beneficiaries with terms, coverages, and in companies reasonably
satisfactory to Landlord and with such commercially reasonable
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