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ASSIGNMENT OF LEASE
THIS ASSIGNMENT OF LEASE (this "Agreement"), dated as of January 1,
1996, by and between IMMUNOGEN, INC. ("Tenant"), a Massachusetts corporation,
and ORAVAX, INC. ("Assignee"), a Delaware corporation.
WHEREAS, by a lease (the "Lease") dated as of June 30, 1992, AEW #1
CORPORATION ("Landlord") leased to Tenant that certain 31,113 square-foot
building (the "Premises") known as and numbered 00 Xxxxxxx Xxxx, Xxxxxx,
Xxxxxxxxxxxxx; and
WHEREAS, on and subject to the terms and conditions set forth herein,
Tenant now desires to assign all of its right, title and interest in and to the
Lease to Assignee, and Assignee desires to accept such assignment, effective as
of the date hereof; and
NOW, THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration, each to the other paid, the receipt and sufficiency
of which are hereby acknowledged, Landlord, Tenant and Assignee hereby agree as
follows:
1. ASSIGNMENT; REPRESENTATION; INDEMNITY. (a) That, effective as
of the date hereof, Tenant hereby assigns to Assignee all of Tenant's
right, title and interest in and to the Lease, including without
limitation all security and other deposits currently being held by
Landlord in respect of the Lease, and Tenant's right to purchase the
Premises as set forth in Section 2.6 of the Lease, all upon the terms
and conditions herein set forth. A true copy of the Lease, together
with any amendments, is annexed as Exhibit A.
(b) Tenant represents and warrants to Assignee that, as of the
date hereof, it has not received from Landlord any written notice from
Landlord to the effect that any default (or event or circumstance
which, with the passage of time or the giving of notice, would
constitute a default) exists on the part of Tenant under the Lease, and
to the best of Tenant's actual knowledge, no such default, event or
circumstance in fact exists; and Tenant agrees with Assignee to
indemnify and hold Assignee harmless from and against any and all costs
and obligations to have been paid or performed by Tenant under the
Lease on or prior to the date hereof.
(c) Tenant agrees with Assignee to indemnify and hold Assignee
harmless from and against any and all loss, cost, damage and expense
suffered by Assignee (including without limitation reasonable
attorneys' fees and costs of defense) as a result of any claim under or
in respect of the Lease, which claim relates to the period prior to the
date hereof.
(d) Tenant has not dealt with any broker or other person or
firm to whom a commission or fee is or may be due in respect of this
assignment, and Tenant hereby agrees to
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indemnify and hold the Assignee and Landlord harmless from and
against any and all loss, cost, damage and expense (including without
limitation reasonable attorneys' fees and costs) suffered by the other
as a result of any claim against Assignee or Landlord that a fee or
commission is due on account of a relationship between the claimant and
the Tenant.
2. ACCEPTANCE AND ASSUMPTION OF OBLIGATIONS; INDEMNITY. (a) Assignee
accepts from Tenant the above assignment, and hereby agrees
with Landlord and Tenant faithfully to assume and perform each and
every obligation of Tenant under the Lease, including without
limitation the obligation to pay rent, additional rent, additional
charges, common area charges, real estate taxes and any and all other
costs and expenses, however labelled or designated, and to observe all
terms and conditions thereof, including without limitation the
prohibition against further subletting or assignment, with the same
force and effect as if Assignee were the Tenant originally named under
the Lease.
(b) Assignee agrees to accept the Premises in their "As Is"
condition as of December 29, 1995, and represents that Assignee has
inspected the Premises and any common areas demised under the Lease,
and is satisfied as to their suitability for Assignee's intended uses.
Neither Tenant nor Landlord shall be liable for the performance of any
work to prepare the Premises for Assignee's use, or for the
reimbursement of any cost or expense incurred by Tenant in connection
with any such work. Notwithstanding any provision hereof to the
contrary, Assignee shall be required upon the expiration or earlier
termination of the Lease to return the Premises to Landlord in such
condition as may be required in the Lease, and Tenant shall have no
liability for any restoration of or repair to the Premises. The removal
of any fixtures, equipment, additions, alterations or improvements,
whether made by Tenant or Assignee, shall be the sole responsibility of
Assignee.
(c) Assignee agrees with Tenant to indemnify and hold Tenant
harmless from and against any and all loss, cost, damage and expense
suffered by Tenant (including without limitation reasonable attorneys'
fees and costs of defense) as a result of any claim under or in respect
of the Lease, which claim relates to the period on or subsequent to the
date hereof. Notwithstanding the foregoing, Assignee shall not be
liable to indemnify Tenant from any such loss, cost, damage or expense
arising from any tort claim in the Premises occurring prior to the date
on which Tenant first delivers possession of the Premises to Assignee.
(d) Assignee has not dealt with any broker or other person or
firm to whom a commission or fee is or may be due in respect of this
assignment, and Assignee hereby agrees to indemnify and hold the Tenant
and Landlord harmless from and against any and all loss, cost, damage
and expense (including without limitation reasonable attorneys' fees
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and costs) suffered by the other as a result of any claim
against Tenant or Landlord that a fee or commission is due on account
of a relationship between the claimant and the Assignee.
(e) Assignee acknowledges that, under the terms of that certain
Consent to Assignment of Lease and Leasehold Mortgage to be executed
and delivered by Landlord in respect of this Assignment, Landlord
requires that Tenant remain liable to Landlord for all obligations and
liabilities of Assignee under the Lease. Therefore, Assignee agrees
with Tenant: (i) not to amend or modify, or agree to or acquiesce in
any amendment to or modification of, the Lease, the effect of which
amendment or modification would be to increase or extend the
obligations or liability of the Assignee under the Lease, as so amended
or modified, without Tenant's prior written consent (which shall not be
unreasonably withheld or delayed, provided that Assignee shall have
given Tenant such information as Tenant may reasonably request
regarding Assignee's financial standing and condition as to allow
Tenant to determine that Assignee has resources sufficient under the
circumstances to meet such increased obligations); and (ii) to
immediately give Tenant a true and complete copy of any notice or other
correspondence received by Assignee in respect of the Lease, including
without limitation any notice or correspondence concerning any failure,
breach or default, whether actual or alleged, on the part of Assignee
under the Lease.
3. EQUIPMENT LEASE. Assignee agrees that, as a material part of the
assignment and assumption transaction represented hereby,
Assignee and Tenant have entered into an Assignment and Assumption of
Equipment Lease of even date (the "Equipment Assignment"), whereby
Assignee has agreed to accept and assume from Tenant an assignment of
all of Tenant's right, title and interest in and to that certain Master
Lease Agreement dated as of March 31, 1994, by and between Tenant and
Aberlyn Capital Management Limited Partnership (the "Equipment Lease").
4. TENANT'S PAYMENTS FOR EQUIPMENT; COLLECTION. (a) In addition to
assuming Tenant's obligations under the Equipment Lease, and as
a material inducement to Tenant's entering into this Assignment,
Assignee has agreed to purchase from Tenant, and Tenant has agreed to
sell to Assignee, the leasehold improvements in the Premises, together
with certain other equipment, fixtures and personal property belonging
to Tenant, and assign to Assignee all of Tenant's right, title and
interest in and to the leasehold improvements heretofore made by Tenant
in the Premises. In consideration thereof, Tenant promises to pay to
Tenant the sum of Two Million Two Hundred Ninety Thousand Dollars
(US$2,290,000.00), which shall be paid in installments as follows:
1. Assignee promises to pay to Tenant (or to Tenant's
order) Five Hundred Thousand Dollars (US$500,000.00), to be
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paid to Tenant simultaneously with Tenant's execution
hereof;
2. Assignee promises to pay to Tenant (or to Tenant's
order) One Hundred Fifty Thousand Dollars (US$150,000.00) on
the later to occur of (x) 5:00 p.m., Boston time, on February
2, 1996, or (y) the date on which Tenant delivers to Assignee's
address set forth in Section 8 hereof all drawings, plans,
warranties and other technical information relevant to the
Premises and in the possession or under the control of Tenant
or its agents or employees (Tenant hereby represents to
Assignee that Tenant has in its possession or under its control
all drawings, plans, warranties and other technical information
necessary for the proper operation of the Premises for the
purposes for which the Premises were constructed);
3. Assignee promises to pay to Tenant (or to Tenant's order)
Three Hundred Thirty Thousand Dollars (US$330,000.00)
on the earlier to occur of (x) 5:00 p.m., Boston time, on
July 1, 1997, or (y) the date on which Assignee has closed
one or more contemplated equity financings having
aggregate gross proceeds of not less than Twenty Million
Dollars (US$20,000,000.00); and
4. Assignee promises to pay to Tenant (or to Tenant's order)
One Million Three Hundred Ten Thousand Dollars
(US$1,310,000.00) in four installments, the first
installment for Two Hundred Sixty Thousand Dollars
($260,000) being due and payable October 1, 1998, and the
remaining installments of Three Hundred Fifty Thousand
Dollars ($350,000) each being due and payable January 1,
1999, April 1, 1999, and July 1, 1999.
All payments referred to above shall be paid in immediately
available federal funds, either by wire transfer or by cashier's check
drawn on Fleet Bank of Massachusetts, N.A., BayBank, N.A., The First
National Bank of Boston or another national banking association in
Boston or New York City reasonably acceptable to Tenant. The payments
referred to in clauses (3) and (4) above shall be subject to adjustment
to the extent that any equipment leased by Tenant under the Equipment
Lease is missing or damaged, all as more particularly set forth in the
Equipment Assignment.
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(b) In the event that Assignee shall fail to make any such
payment when due, Assignee shall pay to Tenant, in addition to the
amount due, a late charge equal to five percent (5%) thereof and, if
such failure shall continue for fifteen (15) days after written notice
thereof from Tenant to Assignee, Tenant shall have the right (but not
the obligation), without limiting any other rights or remedies Tenant
may have, to: (i) declare the entire amount then unpaid (including
without limitation late charges) to be immediately due and payable in
full; (ii) to terminate this Assignment and declare the same null, void
and without further force or effect (without, however, in any way
affecting Tenant's liability for the period between the date hereof and
the date of such termination) and peaceably re-enter the Premises and
repossess the same and any leasehold improvements owned by Assignee;
and (iii) to exercise its rights under the Mortgage (as hereinafter
defined). In addition to the $2,290,000 to be paid as aforesaid,
Assignee shall, simultaneously with Assignee's execution hereof, pay
over to Tenant the $40,000.00 security deposit currently being held by
Landlord, as referenced in Section 3(c) above.
(c) The Assignee agrees to pay all costs of suit and other
expenses of collection, including reasonable fees and expenses of
attorneys at both the trial and appellate levels, in the event that
this instrument is placed in the hands of any attorney for collection
or suit is brought thereon.
(d) The Assignee hereby waives presentment, protest and
demand, notice of protest, demand and dishonor and non-payment hereof,
and to the extent permitted by law, waives and releases all rights of
redemption, valuation, appraisement, notice of election to mature or to
declare due the whole of the indebtedness evidenced hereby, and to the
extent permitted by law, errors, defects and imperfections in any
proceedings instituted by the Tenant under the terms hereof or benefits
that might accrue to the Assignee by virtue of any present or future
laws providing for any stay of execution, exemption from civil process,
or extension of time for payment. Further, Assignee agrees that its
liability hereunder shall remain unimpaired, notwithstanding any
extension of the time of payment or other indulgence granted by the
Tenant, or the release of all or any part of any security for the
liability of any party which may assume the obligation to make payment
of the indebtedness evidenced hereby, or the performance and the
obligations of the Assignee hereunder. The foregoing shall not be
deemed to constitute a waiver by Assignee of any rights that may be
available to Assignee under applicable law to offset against any such
payment obligation the amount of any judgment obtained by Assignee
against Tenant as a result of Tenant's failure or refusal to perform
its obligations hereunder.
(e) In no event shall either party, by any act of omission or
commission, be deemed to waive any of its rights or remedies hereunder
unless such waiver is in writing signed by such party, and no waiver of
any one event shall be construed as continuing or as a bar to or waiver
of such right or remedy on a subsequent event.
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(f) Any legal action or proceeding with respect to the
collection of the indebtedness evidenced hereby may, at the option of
the Tenant, be brought in the courts of The Commonwealth of
Massachusetts or of the United States of America for the District of
Massachusetts. By execution and delivery hereof, the Assignee accepts,
generally and unconditionally, the jurisdiction of the aforesaid
courts. The Assignee irrevocably consents to the service of process of
any of the aforementioned courts in any such action or proceeding by
the mailing of copies thereof by certified mail, postage prepaid, to
the party at its address set forth herein.
(g) Assignee's obligation to make each such payment as and when
due shall be secured by a Leasehold Mortgage and Assignment of Lessee's
Interest (the "Mortgage"), by Assignee in favor of Tenant, covering
Assignee's interest in the Lease, such Mortgage to be in the form
attached hereto as EXHIBIT B.
5. NOTICES, ETC. All notices, requests, consents and other communications
hereunder shall be in writing, shall be addressed to the receiving
party's address set forth below or to such other address as a
party may designate by notice hereunder, and shall be either (i)
delivered by hand, (ii) made by telex, telecopy or facsimile
transmission, (iii) sent by overnight courier, or (iv) sent by
registered or certified mail, return receipt requested, postage
prepaid.
If to the Landlord:
AEW #1 Corporation
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
With a copy to:
Xxxxxxx X. Xxxxx, Esq.
Hill & Xxxxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
If to the Tenant:
Immunogen, Inc.
000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xx. Xxxxx Xxxxxx
With a copy to:
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Xxxxxxx X. Xxxxxx, Esq.
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
If to Assignee:
Oravax, Inc.
00 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention:
With a copy to:
Xxxxxxx Xxxxxxxxx, Esq.
Xxxx and Xxxx
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
All notices, requests, consents and other communications
hereunder shall be deemed to have been given either (i) if by hand, at
the time of the delivery thereof to the receiving party at the address
of such party set forth above, (ii) if made by telex, telecopy or
facsimile transmission, at the time that receipt thereof has been
acknowledged by electronic confirmation or otherwise, (iii) if sent by
overnight courier, on the next business day following the day such
notice is delivered to the courier service, or (iv) if sent by
registered or certified mail, on the 5th business day following the day
such mailing is made. The Assignee shall give the holder prompt notice
of any change in the Assignee's principal address.
6. ACCOUNTING; SERVICE AGREEMENT. At or before the execution hereof, Tenant
has delivered to Assignee an accounting, in reasonable detail,
of Tenant's prior investment in the Premises and the leasehold
improvements therein. Tenant agrees to negotiate in good faith with
Assignee a mutually acceptable service agreement, pursuant to which
Tenant shall provide a reasonable level of consulting services to
Assignee to assist Assignee in making a smooth transition to the
Premises.
7. HEADINGS AND CAPTIONS. The headings and captions of the various
subdivisions of this Agreement are for convenience of reference
only and shall in no way modify, or affect the meaning or construction
of any of the terms or provisions hereof.
8. GOVERNING LAW. This Agreement and the rights and obligations of the
parties hereunder shall be construed in accordance with and governed by
the law of the
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Commonwealth of Massachusetts, without giving effect to the
conflict of law principles thereof.
9. UNENFORCEABILITY, ETC. If any provision hereof or the application
thereof to any person or circumstances shall to any extent be
invalid or unenforceable, the remainder hereof, or the application or
such provision to persons or circumstances other than those as to which
it is held invalid or unenforceable, shall not be affected thereby, and
each provision hereof shall be valid and enforced to the fullest extent
permitted by law.
10. RATIFICATION. Except as hereinabove specifically assigned, the Lease is
hereby ratified and confirmed.
IN WITNESS WHEREOF, Landlord and Tenant have signed and sealed this
Amendment as of the day and year first above written.
IMMUNOGEN, INC.
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, Vice President and Chief
Financial Officer
ORAVAX, INC.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
President and Chief Executive Officer
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Vice President, Treasurer and Chief
Financial Officer
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