Exhibit 10.32
[ATHEROGENICS LOGO]
SUBLEASE AGREEMENT - Amended and Restated
1. Parties. This sublease agreement (the "Sublease"), entered into this
1st day of January, 2001 is made by and between ATHEROGENICS, INC., a
Corporation formed under the laws of the State of Georgia (hereinafter
called "Sublessor"), and INHIBITEX, INC., a Corporation formed under
the laws of the State of Delaware (hereinafter referred to as
"Sublessee").
2. Subleased Premises. Sublessor hereby subleases to Sublessee and
Sublessee hereby subleases from Sublessor for the Term (hereinafter
defined), at the Rental, and upon all of the terms and conditions set
forth in this Sublease, that certain office space containing
approximately 12,414 rentable square feet (including approximately
1,464 of rentable feet designated as the "ACF") more particularly
described on Exhibit A (herein defined as the "Subleased Premises"),
together with all other rights, benefits and privileges of a Sublessor
as tenant under the Prime Lease including, without limitation, the
right of use and enjoyment in common with others, of the common areas
and facilities appurtenant to and serving the Subleased Premises, and
no other furniture, fixtures, machinery, equipment or other furnishings
of Sublessor. The Subleased Premises comprise portions of the Science
and Administration Facility (and its related parking area) (hereinafter
referred to as the "Leased Property"), having a street address of ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇. Sublessor is the tenant
of the Leased Property by virtue of a certain Prime Lease dated June
19, 1998 ("Prime Lease"), with Cousins Properties, Inc. ("Prime
Landlord"), which is attached hereto as Exhibit B and incorporated
herein by reference in its entirety. Sublessee agrees that it will
occupy the Subleased Premises in accordance with the terms of the Prime
Lease and will not suffer to be done or omit to do, any action which
may result in a violation of or a default under any of the terms an
conditions of the Prime Lease, or render the Sublessor liable for any
damage, charge or expense thereunder. This Sublease is and shall be at
all times subject and subordinate to each and every one of the terms
and conditions of the Prime Lease, except for those provisions of the
Prime Lease which are directly contradicted by or inapplicable to the
Sublease, in which event the terms of this Sublease shall control over
the Prime Lease and the Sublessee shall comply with the applicable
terms and provisions of the Prime Lease (e.g., the Rental amount is
governed by paragraph 4 below)) which is incorporated herein by
reference as though fully set forth. Sublessee's rights under this
Sublease shall be contingent upon Sublessor's rights under the Prime
Lease, and in the event the Prime Lease is terminated for any reason,
then the Sublease shall be terminated and Sublessor shall have no
liability to Sublessee as a result of said termination. Sublessor
covenants that it has the right, power and authority to enter into and
fulfill the obligations of this Sublease. Provided that Inhibitex is
not in default hereunder, Sublessor shall take all reasonable actions
and pay all monies due under the Prime Lease, in order to keep the
Prime Lease in full force and effect. Nothing herein shall be construed
in any way to affect the rights and obligations of the Prime Landlord,
and no contractual relationship is intended hereby directly between
Sublessee and Prime Landlord. Sublessor shall reasonably assist
Sublessee in obtaining any consents or approvals of the
Prime Landlord regarding Sublessee's signage or alterations to the
Subleased Premises, if required under the Prime Lease.
3. Sublease Term. The term of this Sublease (the "Sublease Term") shall be
the period commencing on the date this Sublease is executed and
continuing through December 31, 2005. The Sublease Term shall end at
midnight December 31, 2005, unless sooner terminated pursuant to any
provision hereof. Sublessee acknowledges and agrees that Sublessee has
no right or option to extend or renew the Sublease Term beyond December
31, 2005.
4. Rental. From and after the date that rental payments of Sublessee shall
commence (the "Rent Commencement Date"), Sublessee shall pay to
Sublessor base annual rent for the Subleased Premises during the
Sublease Term in the amount of ONE HUNCRED EIGHTY-ONE THOUSAND SIX
HUNDRED AND SEVENTEEN DOLLARS ($181,617), per annum, said base annual
rent to be paid in equal monthly installments in the amount of FIFTEEN
THOUSAND ONE HUNDRED AND THIRTY-FOUR DOLLARS AND 75/100 ($15,134.75)
(the foregoing being hereinafter sometimes referred to as the "Base
Rental"). In the event of partial month occupancy, the Base Rental will
be pro rated based on the actual number of days. The Base Rent due
hereunder shall increase annual as of each anniversary of the
Commencement Date according to the adjustment mechanisms set forth in
Section 3.02 of the Prime Lease.
5. Other Charges. Sublessor covenants and agrees to pay, from time to time
as provided in the Prime Lease, all other amounts and the sums with
respect to the Subleased Premises exclusive of the Base Rental, which
Sublessor assumed and agreed to pay under the terms of the prime Lease.
In addition to Base Rental Sublessee agrees to reimburse to Sublessor
its prorata share of such other amounts and sums, including taxes,
attributable to the Subleased Premises ("The Sublessee Reimbursement")
which Sublessor is required to pay under the Prime Lease. Such sums
shall be prorated based on the relative square footage of the Subleased
Premises (12,414) in relation to the total space leased by Sublessor
(50,821) under the Prime Lease. Sublessee shall make such Sublessee
Reimbursement within thirty (30) days after receipt from Sublessor of
an invoice.
6. Required Licenses and Compliance with the Law. Sublessee shall, at its
own cost and expense, obtain or cause to be obtainable any operating
licenses necessary for its use of the Subleased Premises which may
include, but is not limited to, licenses for (i) the housing of
animals; (ii) the use and disposal of isotopes; and (iii) the use and
disposal of biologically active agents. Sublessee shall comply with all
laws, ordinances and regulations in obtaining and maintaining such
licenses. Sublessee shall, at Sublessee's expense, comply promptly with
all applicable statues, ordinances, rules, regulations, codes, orders,
restrictions of records, and requirements in effect during the Term or
any part of the Term hereof regulating the use of the Subleased
Premises. Sublessee shall not use or permit the use of the Subleased
Premises in any manner that will tend to create waste, odors, noise,
heat, cold, vibration or a nuisance, or which shall tend to
unreasonably disturb Sublessor or other subtenants of the Leased
Premises, if any.
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7. Sublessor's Insurance. Sublessor is not responsible for, or obligated
to, provide any insurance on the Subleased Premises for the benefit of
the Sublessee. Sublessee shall provide its own liability, business
interruption or any other insurance it may desire.
8. Assignment and Subletting. Sublessee shall have the right to assign
this Sublease and sublease the Subleased Premises (but only in its
entirety, except for the area designated as the ACF as described above
in paragraph 2) in the same manner and only to the extent that
Sublessor has a corresponding right to make such assignment or sublease
under the terms of Article XIII of the Prim Lease. Any proposed
assignment or sublease by Sublessee shall be made only in accordance
with all f the terms of Article XIII of the Prime Lease, and notice or
request for approval of such proposed assignment or sublease, if
required under the Prime Lease, shall be given to the Prime Landlord
and to Sublessor. In the event that during the Sublease Term, the
Sublessee subleases the Subleased Premises except for the ACF (the
"Sublease"), the Sublease Term for the ACF shall automatically be
adjusted to the shorter of (i) the original Sublease Term or, (ii) the
period ending one year from the date on which the Sublease is executed.
Sublessor shall not unreasonable withhold, condition or delay its
consent to a proposed assignment or sublease which is made in
accordance with Article XIII of the prime Lease, and Sublessor will use
its reasonable efforts to assist Sublessee in obtaining any required
consent of the Prime Landlord to any such proposed assignment or
sublease.
9. Consent of Prime Lessor. Notwithstanding Sections 8.02 and 12.01 of the
Prime Lease, Sublessor hereby reserves the right to approve any
Sublessee modifications to the Subleased Premises, which approval shall
not be unreasonably withheld, conditioned or delayed.
The forgoing notwithstanding, Sublessor shall have the right to
withhold its consent to an assignment pending its receipt of the
proposed assignee's financial statements as is required of any proposed
assignee under the Prime Lease and Sublessor's reasonable determination
concerning whether proposed assignee is capable of meeting all of its
financial obligations under the Sublease. If those conditions are found
to exist and Sublessor expressly consents to the proposed assignment
and, only with respect to assignments that do note require consent
under the Prime Lease, Sublessee shall be relieved of liability under
this Sublease immediately upon execution of any such assignment.
10. Notices. Any notice by either party to the other required, permitted or
provided for herein shall only be valid if (a) delivered personally, or
(b) sent by means of Federal Express, UPS Next Day Air or another
reputable express mail delivery service guaranteeing next day delivery,
or (c) sent by United States certified or registered mail, return
receipt requested, postage pre-paid addressed (I) if to Sublessor, at
the following addresses:
AtheroGenics, Incorporated
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Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Chief Financial Officer
Plus a copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esquire
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esquire
Long ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Suite 600
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▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
And (ii) if to the Sublessee, at the following addresses:
Inhibitex, Inc.
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▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Chief Executive Officer
With a copy to:
King & Spalding
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇, Esquire
Or at such other address for either party as that party may designate by notice
to the other. A notice given as set forth above shall be deemed effective, if
delivered personally, upon hand delivery thereof, if sent via express mail, upon
hand delivery, and if mailed by United States certified or registered mail, five
(5) days following such mailing in accordance with this Section.
11. Quiet Enjoyment. If Sublessee shall pay the rent, and perform all of
the covenants, terms, conditions and agreements of this Sublease on the
part of the Sublessee to be performed, Sublessee shall, during the Term
hereof, freely, peaceably and quietly occupy and enjoy the Subleased
Premises without molestation or hindrance by Sublessor or any party
claiming by, through or under Sublessor, subject to the terms and
conditions of this Sublease and the Prime Lease.
12. Indemnity. Sublessee hereby agrees to indemnify and hold Sublessor
harmless from and against any cost, damage, claim, liability or
expense, including attorneys' fees, incurred by Sublessor arising from
any breach of Sublessee hereof or from Sublessee's failure to perform
or observe any of the terms and conditions of the prime Lease which it
is obligated under this Sublease to perform or observe, or otherwise
resulting form Sublessee's use or occupancy of the Subleased Premises,
except if and to the extend any such cost, damage, claim, liability or
expense occasioned by the negligence or willful misconduct of
Sublessor. Sublessor hereby agrees to indemnify and hold Sublessee
harmless from and against any cost, damage, claim, liability or
expense, including attorney's fees, incurred by Sublessee if
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and to the extent arising from the negligence and willful misconduct of
Sublessor or any breach of Sublessor's obligations, or default by
Sublessor, under the Prime Lease or this Sublease.
13. Sublessor's Default under Prime Lease. In the event that there is an
Event of Default by Sublessor under the Prime Lease, and such default
is not caused by Sublessee, and Sublessor does not cure the Event of
Default within five (5) days after written notice by Prime Landlord to
Sublessor in the event of monetary default and fifteen (15) days after
such notice in the event of non-monetary default, Sublessor shall
immediately notify Sublessee in writing of such Event of Default.
Sublessee shall have the right to cure such Event of Default on
Sublessor's behalf and Sublessor shall promptly reimburse Sublessee for
all reasonable, out-of-pocket expenses incurred by Sublessee in
connection with such curative action. In the event that Sublessor does
not reimburse Sublessee within fifteen (15) days after written notice
to Sublessor, Sublessee shall have the right to deduct any such sums
due to Sublessee from the rent due under this Sublease plus interest
calculated at a rate of eighteen percent (18%) per annum thereon from
the date incurred by Sublessee until offset by Sublessee.
14. Sublessor's Representation and Warranty. Sublessor hereby represents,
warrants and certifies to Sublessee as follows:
(a) A true, complete, and accurate copy of the Prime Lease is attached
hereto as Exhibit "B" and except as attached hereto, the Prime
Lease has not been modified or amended.
(b) The prime Lease is in full force and effect and there has occurred
no Event of Default by Sublessor thereunder.
15. Interruption of Utility Service. Except in the event any interruption
in utility services is caused by Sublessee's negligence or misconduct,
if Sublessee cannot reasonably use the Subleased Premises for
Sublessee's intended business operations by reason of any interruption
in utility services to be provided by Sublessor (and Sublessee does not
in fact use the Subleased Premises) and such condition exists for three
(3) consecutive business days, then Sublessee's rent shall be equitably
abated for that portion of the Subleased Premises that Sublessee is
unable to use the Sublessee's intended business operations for the
period commencing after the end of the three-day period above to and
until such service is restored to the Premises. If such condition
exists for thirty (30) consecutive days, then Sublessee may terminate
this Sublease.
16. Sublessor's Default Under Sublease. In the event that Sublessor
defaults under it obligations under this Sublease, Sublessee shall
promptly notify Sublessor in writing of such default and Sublessor
shall have thirty (30) days within which to cure such default (or if
such default is not capable of being cured within such time, Sublessor
shall diligently proceed to cure such default). In the event that
Sublessor does not cure the default within such thirty (30) day period
or does not diligently proceed to cure such default if such default is
not capable of being cured within such thirty (30) day period,
Sublessee shall
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have the right to cure such default on Sublessor's behalf and Sublessor
shall promptly reimburse Sublessee for all reasonable, out-of-pocket
expenses incurred by Sublessee in connection with such cure.
17. Repairs by Sublessor. Sublessor shall make all reasonably necessary
repairs, alterations or additions that affect the Building's structural
components and all mechanical, electrical and plumbing systems and
other building systems servicing the Subleased Premises.
18. Fire or Other Casualty Damage. If any portion of the Subleased Premises
shall be destroyed or damaged by fire or any other casualty or any
other portion of the building such that Sublessee may not reasonably
use the Subleased Premises, then Sublessee shall be entitled to an
equitable abatement of the rent hereunder until such time as the
damaged portion of the Subleased Premises are required or restored by
Sublessor, and the Sublessee shall have the right to terminate this
Sublease if such damage cannot be repaired or restored within 180 days
after the date of such casualty.
19. Acceptance of Subleased Premises. Sublessee accepts the Subleased
Premises in their existing condition, without representation or
warranty, express or implied, in fact or by law, and no representation,
statement or warranty, express or implied, has been made by or on
behalf of Sublessor as to such condition, or as to the use that may be
made of said Sublease Premises."
20. Defined Terms. All capitalized terms not otherwise defined herein shall
have the meaning ascribed hereto as set forth in the Prime Lease.
IN WITNESS WHEREOF, the parties hereto hereby execute this
Sublease as of the day and year first above written.
SUBLESSEE: SUBLESSOR:
INHIBITEX, INC. ATHEROGENICS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Chief Executive Officer Chief Financial Officer
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Exhibit A - [Layout of Office Space]
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