EXHIBIT 10.1
CONSENT AND ASSIGNMENT OF LEASE
This Consent and Assignment of Lease is made and entered into this 13th day
of November, 1997, by and between Genase, L.L.C. ("Assignor"), Photogen, Inc.
("Assignee"), and P. C. ▇▇▇▇▇▇, Jr. and ▇▇▇▇▇ ▇▇▇▇▇▇ (collectively, "Landlord").
WHEREAS, Landlord and Assignor, as Tenant, entered into that certain lease
agreement (the "Lease") dated July 1, 1996, attached hereto as Exhibit A and
made a part hereof, demising approximately 3,000 rental square feet or area in
the improvements commonly known as ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ and leasing certain equipment; and
WHEREAS, Assignor and Assignee entered into that certain Lease and
Facilities Sharing Agreement dated as of September __, 1997 (the "Sublease")
regarding the property and equipment which was the subject of the Lease; and
WHEREAS, Assignor desires to assign, and Assignees desire to acquire, all
of Assignor's right, title and interest as Tenant under the Lease and to cancel
the Sublease.
NOW, THEREFORE, for and in consideration of the sum of Ten and No/100
Dollars ($10.00) and other good and valuable consideration, the receipt and
sufficiency of which are hereby mutually acknowledged, the parties hereto hereby
covenant and agree as follows:
1. Assignor hereby sells, assigns and transfers to Assignee, and Assignee
hereby acquires from Assignor, all of Assignor's right, title and interest as
Tenant in and to the Lease.
2. Assignee hereby agrees to assume and perform all of the covenants,
duties and obligations of Assignor under the Lease which accrue or become
performable from and after the date hereof to the same extent as if Assignee had
originally been named as "Tenant" under the Lease.
3. Assignor, Assignee and Landlord agree that from and after the date
hereof the Sublease shall be terminated and of no further force and effect.
4. Landlord consents to the assignment by Assignor, and the assumption by
Assignee, of the Tenant's obligations under the Lease and the other transactions
hereunder; notwithstanding any other provision of the Lease or Sublease to the
contrary.
5. Assignor shall indemnify, defend (using counsel reasonably acceptable
to Assignee) and hold Assignee (and Assignee's officers, directors,
subsidiaries, affiliates, shareholders, employees
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and agents) harmless from and against all Adverse Consequences (defined below)
Assignee (or any of its officers, directors, shareholders, subsidiaries,
affiliates, employees or agents) incurs that arise out of or relate to (a) any
breach or alleged breach of any of Assignor's covenants, agreements,
representations and warranties in the Lease, and (b) any negligent, intentional
or other act or omission relating to Assignor's use and occupancy of the
premises and the equipment which was the subject of the Lease. "Adverse
Consequences" means any and all actual, consequential and other damages of any
nature, obligations, liabilities, losses, expenses (including reasonable
attorneys' fees and expenses), claims, demands, clean-up costs, settlement
payments, allegations, investigations and fines.
6. This Consent and Assignment of Lease may not be changed, modified,
discharged or terminated orally or in any other manner other than by an
agreement in writing signed by the parties hereto or their respective successors
and assigns.
IN WITNESS WHEREOF, the parties hereto have caused this Consent and
Assignment of Lease to be executed in one or more counterparts effective as of
the day and year first above written.
ASSIGNOR: ASSIGNEE:
Genase, L.L.C. Photogen, Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
------------------------------ ------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President Title: President
LANDLORD:
/s/ PC ▇▇▇▇▇▇ Jr.
---------------------------------
P.C. ▇▇▇▇▇▇, Jr.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
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EXHIBIT "A"
LEASE AGREEMENT
This Lease Agreement entered into at Knoxville, Tennessee, effective as of July
1, 1996, by and between P.C. ▇▇▇▇▇▇, Jr. and ▇▇▇▇▇ ▇▇▇▇▇▇, husband and wife
(hereinafter "Landlord"), and Genase, L.L.C. a Tennessee corporation
(hereinafter "Tenant").
IN CONSIDERATION of the mutual covenants and agreements hereinafter contained,
the parties hereto agree as follows:
1. PREMISES. In consideration of the rent, covenants and conditions that
Tenant herein agrees to pay, keep and perform, Landlord hereby leases to
Tenant land, building and improvements located at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, all as described and outlined in Exhibit
"A" and referred as Unit A attached hereto and incorporated herein by
reference, all hereinafter referred to collectively as the "Premises."
2. TERM. The Lease Agreement shall be for a term of three (3) years,
commencing as of the date entered above and ending three years later on
June 30, 1999.
3. RENT. Tenant agrees to pay Landlord the sum of $1375.00 per month, during
the first year of the three year term, for 3000 sq. ft. as and for rental
of the Premises and for the option to purchase, as provided herein, said
payments beginning as of the date entered above. Tenant further agrees to
pay Landlord the sum of $1500.00 per month during the second and third
years of the lease term for 3000 sq. ft. as and for rental of the Premises.
4. OPTION TO RENEW. Tenant shall have two (2) options to extend the term of
the lease agreement for additional terms of three years each at a rental to
be negotiated, and upon the same terms and conditions as set forth herein.
Notice shall be given Landlord, within 30 days of expiration of Lease term,
of Tenant's intent to exercise this option.
5. AUTOCLAVE. Tenant desires to lease the "Autoclave" and related equipment
during the term of the lease and any extensions thereof according to the
terms described below:
A. The additional equipment to be leased includes the autoclave, steam
generator, and any required auxiliary equipment (such as the gas water
preheater) located on the Premises.
B. Landlord agrees to relocate the subject equipment to a location
convenient for use by Genase. The relocation and reinstallation shall
be accomplished in a manner that facilitates easy removal of the
equipment, in case Genase should purchase their own, or in case the
equipment requires repair. The units shall be installed with
sufficient room around them to facilitate easy access for routine
maintenance.
C. Landlord agrees to have the units inspected and obtain all necessary
operating permits prior to Genase initiating use and the beginning of
the lease term.
D. Operational status will be demonstrated by having a signed inspection
and operating permit from the appropriate State Authorities, and by
successfully completing a test run using standard autoclave test
strips.
E. Tenant agrees to provide, at Tenants cost, all necessary on-going
maintenance during the term of the lease and any extensions thereof,
including periodic inspections as required by state authorities.
F. Tenant will indemnify Landlord against any claim as a result of injury
to any Tenant personnel as a result of operating the autoclave.
Landlord will provide insurance sufficient to cover the building
against damage caused as a result of operation of the autoclave.
Tenant will indemnify Landlord against loss of or damage to Tenants
equipment as a result of operating the autoclave.
G. Tenant shall have the option at its discretion to purchase its own
autoclave and install it on the Premises at Tenants expense.
H. Tenant agrees to pay Landlord $100.00 per month during the term of the
Lease and any extensions thereof for use of the autoclave and related
equipment. Should Tenant provide its own autoclave the lease payment
shall be reduced by $100.00 per month.
6. OPTION TO PURCHASE. Landlord hereby grants to Tenant the second right of
refusal and option to purchase the Premises described above at any time
during the term hereof or during any renewal period. The purchase price is
to be determined by appraisal by an appraiser mutually acceptable to both
parties (Landlord and Tenant). In the case of a binding third party offer,
the Tenant shall have a second right of refusal to purchase the premises
under the same terms as agreed to by the third party.
7. TAXES. Landlord shall be responsible for payment of all taxes, assessments
or other governmental charges applicable to the Premises.
8. UTILITIES. Tenant shall pay for use of all gas, electricity, sewer, water
and other utilities consumed or wasted upon the Premises. Tenant shall
provide its own janitor and cleaning service. Landlord shall make every
reasonable effort to connect the Premises waste lines to the municipal
sewer, and shall pay all costs associated with this connection. Tenant
will pay all ongoing usage fees.
9. MAINTENANCE AND REPAIRS. Landlord, at its expense, shall be responsible
for all maintenance and repairs to the building, including, but not limited
to the roof, floor, foundation, walls, general heating and air conditioning
systems, septic tank and lateral
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lines, and electrical and plumbing systems. Tenant shall be responsible,
at its own expense, for routine minor maintenance and upkeep, such as,
repairing faucet leaks, and replacing light bulbs. Tenant agrees to be
responsible for the routine maintenance of the back-up generator, which
shall include the battery, oil changes and periodic starting. In the event
the Landlord shall fail to proceed with and complete any repairs and
restorations which it may be required to make hereunder within a reasonable
time, Tenant, upon notice to Landlord, may contact designated repair
service personnel charging their services directly to the Landlord. Any
repairs made by the Tenant shall be such as are reasonably necessary to
protect the Premises and improvements for the account of and at the expense
of the Landlord.
10. IMPROVEMENTS AND ALTERATIONS. Tenant may, at its own expense, obtain,
maintain, and install in the Premises such trade fixtures as the Tenant
needs in order to operate its business, and may place such temporary
partitions, lighting fixtures, personal property, machines, motors and the
like in the premises, and may make such improvement and alterations to the
Premises, as it may desire, provided only, that such improvements and
alterations do not materially reduce the value of the Premises. All
improvements, alterations heretofore or hereafter made or installed or paid
for by Tenant, shall remain the property of the Tenant.
In case of damage or destruction thereto by fire or other causes, Tenant
shall have the right to recover such items from any insurance with which it
has insured the same, notwithstanding that any of such items might be
considered a part of real property. Tenant may remove all or any of such
items at any time during the term of this Agreement or any extension
thereof. Tenant may abandon the same, in whole or in part, to Landlord at
the end of the term or any extension thereof, or such other expiration of
the term, by vacating the Premises without removing the same. In the event
of removal of such items, Tenant shall repair any damage caused by such
removal.
Tenant shall be responsible for replacement and/or repairs to Premises for
any damage to Premises caused by abuse, neglect, or accident not recovered
by insurance that result directly from Tenant use of the Premises except as
provided for in Paragraph 5. It is understood by the Parties hereto that
the Landlord may enter the Premises during normal business hours to inspect
the building and to make routine repairs.
11. INSURANCE.
A. Landlord at its own expense and throughout the term of this lease
Agreement and any extensions thereof, shall maintain insurance with
respect to the Premises of the following types and in the following
amounts:
I. Fire insurance with full standard form extended coverage, in an
amount not less than eighty percent (80%) of the full replacement
value of the building.
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II. Public liability insurance protecting against claims for personal
injury, death and property damage occurring upon, in or about the
Premises with limits of liability of not less than One Million
Dollars ($1,000,000) per occurrence Tenant will likewise
maintain public liability insurance protecting against claims for
personal injury, death and property damage occurring upon, in or
about the Premises with limits of liability of not less than One
Million Dollars ($1,000,000) per occurrence.
B. Tenant, at its own expense and throughout the term of this Lease
Agreement and any extension thereof, shall maintain insurance on the
contents of the building.
C. All insurance required under the provisions of this Paragraph shall be
carried in favor of the Landlord or Tenant as their respective
interests may appear. All policies shall provide that same cannot be
canceled without giving at least ten (10) days prior written notice to
the other Party.
12. DAMAGE TO PREMISES. If the Premises are destroyed or damaged to such an
extent as to be rendered substantially unfit for occupancy, when considered
as a whole, and the destruction or damage is not reasonably repairable
within ninety (90) days after it occurs, the lease shall terminate as of
the date the destruction or damage occurred and rent shall be abated
accordingly. If the Premises are destroyed or damaged as aforesaid, but
the destruction or damage is reasonably repairable within ninety (90) days
after it occurs, or if the Premises are damaged but to such an extent as to
be rendered substantially unfit for occupancy when considered as a whole,
Landlord shall proceed diligently to repair the Premises and the rent shall
be abated or reduced, as may be equitable, while repairs are being made.
13. CONDEMNATION. If any part of the Premises is taken, appropriated or
condemned for public use, the lease shall terminate as to the part taken on
the date of the taking or sale. In such event, Tenant may elect to
terminate the lease as to the remainder of the Premises, by mailing to the
Landlord written notice of Tenants's receipt of written notice of the
taking and Tenants statement of its desire to terminate, if the part taken
or sold renders the remainder unsuitable and insufficient to serve the
business needs of the Tenant.
14. MECHANICS LIENS. No mechanic's lien for labor or materials shall attach to
or affect Tenant's interest in the Premises. Landlord shall pay or
discharge by bond or deposit any and all mechanic's liens or other liens
which are filed on any interest in the Premises for labor or materials
furnished to Landlord.
15. DEFAULT BY TENANT. If Tenant defaults in performance of any of the
provisions, covenants or conditions of the lease and such default continues
for thirty (30) after Tenant is notified in writing by Landlord to cure it
or, if such default is of such a nature that it
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cannot be cured within such thirty (30) day period and continues for longer
than the period reasonably required to cure it, or if Tenant abandons or
vacates the Premises at any time during the term of the Lease, or if Tenant
makes an assignment for the benefit of creditors, or if the interest of the
Tenant in the Premises is attached, levied upon or seized by a legal
process, or if Tenant is found to bankrupt or insolvent by a court of
competent jurisdiction, or if a receiver is appointed for Tenant by any
such court, or if the Lease is assigned or terminated by operation of law,
then immediately or any time thereafter, with reasonable notice given to
Tenant, Landlord may re-enter and take possession of the Premises by an
action in forcible entry and detainer or otherwise. Landlord may thereupon
elect, either (a) to declare the Lease terminated, in which event Landlord
may thereafter possess and enjoy the Premises as though the Lease had never
been made without prejudice to any and all rights of action which the
Landlord may have against Tenant at the time of such termination for rent,
damages or breach of covenant previously accruing or occurring, or (b) to
re-let the Premises on be-half of the Tenant.
16. ASSIGNMENTS AND SUBLEASES. Tenant shall not assign this lease or sublet
any part of the Premises without the written consent of the Landlord, which
shall not be unreasonably withheld.
17. QUIET ENJOYMENT. Landlord warrants that Landlord has the right to Lease
the Premises to Tenant. So long as Tenant pays the rent herein provided
and observes and performs the covenants and conditions of the Lease, Tenant
shall be entitled to peaceably and quietly possess, occupy and enjoy the
Premises during the term of the Lease without disturbance or eviction by
the Landlord or by any other person lawfully claiming under the Landlord.
18. SUCCESSORS AND INTEREST. The Lease Agreement shall be binding upon, inure
to the benefit of, and be enforceable by and against the heirs, executors,
administrators, successors and assigns of the Landlord and Tenant. No
assignment of the Lease or Sublease hereunder, whether by act of Tenant or
by operation of law, in violation of any provision of this lease shall vest
in any assignee or sublessee any right, title or interest whatsoever.
19. NOTICES. Any notice, statement or payment required or permitted by the
provisions of this Lease, is to be considered given, furnished or made when
mailed to he parties at the following addresses:
LANDLORD Mr. P.C. ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
TENANT Genase, L.L.C.
▇▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
20. EXPENSES. Any expense incurred as a result of performance of this Lease
except for those expenses set forth in Paragraphs 9 and 10 above will be
the responsibility of the person or entity, either Landlord or Tenant,
incurring the obligation.
21. HAZARDOUS SUBSTANCES. As used herein, "Hazardous Substance" means any
substance that is considered toxic and is the subject of any Local, State
or Federal regulation, and other substances that are considered flammable.
Tenant intends to use the Premises as a biological research and development
facility. Tenant may, from time to time, use small amounts of materials
that may be considered "Hazardous". "Small" amounts means volumes of less
than a few liters per month as a worst case.
Tenant will take all reasonable precautions for the storage and use of any
"Hazardous" materials as prescribed by law and good laboratory practice.
Tenant will indemnify Landlord against personal injury to any Tenant
employee and damage to the Premises caused as a result of the use of
"Hazardous" materials.
Landlord, prior to occupancy, will connect all waste and floor drain lines
to the existing septic system.
Landlord will connect these waste lines to the municipal sewer system as
soon as is possible.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease Agreement the
day and year first above written.
LANDLORD: TENANT:
GENASE, L.L.C.
/s/ P.C. ▇▇▇▇▇▇
---------------------------------
P.C. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇▇▇▇▇▇
--------------------------------- ---------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇ President
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EXHIBIT "A"
UNIT I
unto the said Second Parties the following described premises, to wit: Situated
in District No. Six (6) of ▇▇▇▇ County, Tennessee, and without the corporate
limits of the City of Knoxville, Tennessee, and being more fully described as
follows:
PARCEL NO. 1: BEGINNING at an iron pin in the Southeast corner of Tract
conveyed by ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., and wife, to Bolt 23 August 1958, said
beginning point being distant 80.8 feet South 41 deg. 40 min. East from an iron
pin in the Southeast line of the Oak Ridge Highway, which iron pin is 230 feet,
more or less, Southwesterly from the point of intersection of the center line of
▇▇▇▇▇▇▇ ▇▇▇▇ projected Southeasterly to the Southeast line of Oak Ridge Highway;
thence from said beginning point, South 15 deg. 10 min. East 192 feet to an iron
pin in the line of other ▇▇▇▇▇▇▇ property; thence South 80 deg. 38 min. West
251.7 feet to an iron pin; thence North 28 deg. 22 min. West 98 feet to an iron
pin in the South line of property now or formerly belonging to ▇▇▇▇ ▇▇▇▇▇▇;
thence with the line of said property and along a fence line, North 60 deg. 30
min. East 80 feet to an iron pin; thence continuing with ▇▇▇▇▇▇ line, North 28
deg. 22 min. West 20 feet to an iron pin, corner to tract conveyed by ▇▇▇▇▇▇ to
Bolt; thence with the line of said tract, North 64 deg. 30 min. East 202 feet to
the place of BEGINNING.
PARCEL NO. 2: BEGINNING on an iron pin in the South right of way line of Oak
Ridge Highway, corner to property now or formerly belonging to ▇▇▇▇ ▇▇▇▇▇▇;
thence South 26 deg 45 min. East 80 feet with the ▇▇▇▇▇▇ line to an iron pin in
line of property now or formerly belonging to ▇.▇. ▇▇▇▇▇▇▇; thence North 64 deg.
30 min East 202 feet with ▇.▇. ▇▇▇▇▇▇▇'▇ line to an iron pin on the West side of
spring branch; thence North 42 deg. West 80 feet with ▇.▇. ▇▇▇▇▇▇▇'▇ line to an
iron pin in the East Side of spring branch and in the Highway right of way;
thence South 64 deg. 30 min. West 183.5 feet with the Oak Ridge Highway to the
point of BEGINNING.
BEING the same property conveyed to ▇.▇. ▇▇▇▇▇▇ and P.C. ▇▇▇▇▇▇, Jr. by Deed
from ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and wife, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, dated November 24, 1964,
and of record in Deed Book 1272, page 12, in the Register's Office for ▇▇▇▇
County, Tennessee.
PARCEL NO. 3: BEGINNING on an iron pin in the South right-of-way line of Oak
Ridge Highway, said pin located about 1300 feet South _____ 30' West from the
intersection of the West line of the ▇▇▇▇▇▇ Road extended to intersect the South
line of said Oak Ridge Highway, said pin being now corner to ▇.▇. ▇▇▇▇▇▇▇;
thence with ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇. 30' East 100 feet to an iron pin corner to
▇▇▇▇▇▇▇; thence with ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇. 30' East 108.9 feet to an iron pin
corner to ▇▇▇▇▇▇▇; thence with ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇. 30' West 100 feet to an
iron pin in the South right-of-way line of said Oak Ridge Highway corner to
▇▇▇▇▇▇▇; thence with said right-of-way line South 63DEG. 30' West 108.9 feet to
the beginning, containing 0.25 acre, more or less.
The above described property is improved by two block buildings.
BEING the same property conveyed to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and wife, ▇▇▇▇▇ ▇▇▇▇▇▇, by
warranty deed of 1 July, 1978, recorded in Warranty Deed Book ______, page ____,
in the Register's Office for ▇▇▇▇ County Tennessee.
FOR FURTHER REFERENCE see Warranty Deed Book 903, page 311, in the Register's
Office for ▇▇▇▇ County, Tennessee.