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ASSIGNMENT OF EQUIPMENT LEASE
AND LESSOR'S CONSENT
THIS ASSIGNMENT OF EQUIPMENT LEASE AND LESSOR'S CONSENT (this
"Agreement"), dated as of January 1, 1996, by and among IMMUNOGEN, INC.
("Lessee"), a Massachusetts corporation, ORAVAX, INC. ("Assignee"), a Delaware
corporation, and ABERLYN CAPITAL MANAGEMENT LIMITED PARTNERSHIP, a Delaware
limited partnership ("Lessor").
WHEREAS, by a Master Lease Agreement (the "Lease") dated as of March
31, 1994, Lessor leased to Lessee that certain equipment and other personal
property (the "Equipment") more particularly described in Lease Schedule No.
001 and Lease Schedule No. 002, each of which is attached to and made a part of
the Lease; and
WHEREAS, on and subject to the terms and conditions set forth herein,
Lessee 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, Lessor, Lessee and Assignee hereby agree as
follows:
1. ASSIGNMENT; REPRESENTATION; INDEMNITY. (a) That, effective as
of the date hereof, Lessee hereby assigns to Assignee all of Lessee's
right, title and interest in and to the Lease, including without
limitation all security and other deposits currently being held by
Lessor in respect of the Lease, and Lessee's right to purchase the
Equipment as set forth in Section 2.6 of the Lease and in the Lease
Schedules, 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) Lessee represents and warrants to Assignee that, as of the
date hereof, it has not received from Lessor any written notice from
Lessor to the effect that any Event of Default (or event or
circumstance which, with the passage of time or the giving of notice,
would constitute an Event of Default) exists on the part of Lessee
under the Lease, and to the best of Lessee's actual knowledge, no such
Event of Default, event or circumstance in fact exists; and Lessee
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 Lessee under the Lease on or prior to the date hereof.
(c) Lessee 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) Lessee 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 Lessee hereby agrees to indemnify and hold the Assignee
and Lessor 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
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of any claim against Assignee or Lessor that a fee or commission is due
on account of a relationship between the claimant and the Lessee.
(e) Lessee represents and warrants to Lessor that, as of the
date hereof, the Equipment is free from all liens and encumbrances made
by Lessee except the Lease.
2. ACCEPTANCE AND ASSUMPTION OF OBLIGATIONS; INDEMNITY. (a)
Assignee accepts from Lessee the above assignment, and hereby agrees
with Lessor and Lessee faithfully to assume and perform each and every
obligation of Lessee under the Lease, including without limitation the
obligation to pay Rent, additional rent, Supplemental Rent, additional
charges, 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 Lessee originally named under the Lease.
(b) Subject to the provisions of Section 8 hereof, Assignee
agrees to accept the Equipment in its "As Is" condition as of December
29, 1995, and represents that Assignee has inspected the Equipment, and
is satisfied as to its suitability for Assignee's intended uses.
Notwithstanding any provision hereof to the contrary, Assignee shall be
required upon the expiration or earlier termination of the Lease to
return the Equipment to Lessor in such condition as may be required in
the Lease, and Lessee shall have no liability in connection therewith.
Assignee agrees to pay to Lessee, simultaneously with the execution
hereof, an amount equal to the last month's rental payments due under
the Lease, which have been paid in advance by the Lessee. Assignee
agrees that such amount is $96,595.14.
(c) Assignee agrees with Lessee to indemnify and hold Lessee
harmless from and against any and all loss, cost, damage and expense
suffered by Lessee (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.
(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 Lessee
and Lessor 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 Lessee or
Lessor that a fee or commission is due on account of a relationship
between the claimant and the Assignee.
(e) Assignee represents and warrants to Lessor that to the
best of its knowledge there is no sales, use or other tax required to
be paid in connection with the assignment effected hereby, and Assignee
shall pay any such tax if the same is later found applicable.
(f) Assignee acknowledges that as of the date hereof, there
remains unpaid under the Lease aggregate rent payments in the amount of
$3,091,044.48.
3. LESSOR'S CONSENT. (a) Lessor hereby consents to the Assignment of the
Lease to Assignee on the following terms and conditions:
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(i) Neither the giving of this consent nor anything
contained herein shall be construed to modify, waive, impair or
affect any of the covenants, agreements, terms, provisions,
obligations or conditions contained in the Lease (except as may
herein be expressly provided), or to waive any breach thereof,
or any rights of Lessor against any person, firm, association
or corporation liable or responsible for the performance
thereof, or to increase the obligations or diminish the rights
of Lessor under the Lease, or to increase the rights or
diminish the obligations of the tenant thereunder, or to, in
any way, be construed as giving Assignee any greater rights
than the original Lessee named in the Lease would be entitled
to, and all covenants, agreements, terms, provisions and
conditions of the Lease are hereby mutually declared to be in
full force and effect.
(ii) The giving of this consent shall not be construed
either as a consent by Lessor to, or as permitting, any other
or further assignment of the Lease, whether in whole or in
part, or any subletting of the Equipment or any part thereof,
or as a waiver of the requirement of obtaining Lessor's consent
thereto, to the extent required under the Lease.
(iii) The giving of this Consent shall not result in any
liability on the part of Lessor for the payment of any
commissions or fees in connection with the proposed assignment
transaction herein contemplated by Lessee and Assignee; Lessor
hereby represents that it has dealt with no broker or other
party to whom a commission is due as a result of this
Agreement.
(b) Lessor represents and warrants to Lessee and Assignee that
as of the date hereof, no Event of Default (or event or circumstance
which, with the passage of time or the giving of notice, would
constitute an Event of Default) exists on the part of Lessee under the
Lease and the Lease has not been amended except as disclosed on Exhibit
A. Lessor is not currently holding any security deposits from Lessee or
any other amounts for the account of Lessee, but Lessor acknowledges
that the last month's rental payment under the Lease has been paid in
advance.
4. RELEASE. Effective as of the date hereof, (i) Lessor hereby
releases Lessee from any and all further liability or obligation under
or in respect of the Lease, which liability or obligation first arises
on or subsequent to the date hereof, and (ii) Lessee hereby releases
Lessor from any and all claims, actions or causes of action,
liabilities or obligations, of whatever type or nature, known or
unknown, arising out of or in respect of the Lease or Lessee's use of
the Equipment and first arising prior to the date hereof.
5. SPACE LEASE. Assignee agrees that, as a material part of the
assignment and assumption transaction represented hereby, Assignee and
Lessee have entered into an Assignment and Assumption of Lease of even
date (the "Space Assignment"), whereby Assignee has agreed to accept
and assume from Lessee an assignment of all of Lessee's right, title
and interest in and to that certain Lease dated as of June 30, 1992, by
and between Lessee and AEW #1 Corporation (the "Space Lease").
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6. SECURED PARTIES, ETC. Lessor represents that there exist no
holders of chattel mortgages or security interests on the Equipment,
and no further consents or approvals are required for Lessor to enter
into this Agreement.
7. 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 Lessor:
Aberlyn Capital Management Limited Partnership
0000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxx
If to the Lessee:
Immunogen, Inc.
000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xx. Xxxxx Xxxxxx
With a copy to:
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:
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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.
8. INSPECTION. At or before the execution hereof, Lessee and
Assignee have performed a detailed inspection of the Equipment, and a
complete listing of any missing or damaged (other than ordinary wear
and tear) Equipment is annexed hereto as EXHIBIT B. If and to the
extent that there exists any such missing or damaged Equipment,
Assignee may deduct from the payment to be made to Lessee under Section
4(3) and 4(4) of the Space Assignment an amount equal to the product of
(i) the reasonable amount by which the value of any missing or damaged
Equipment is diminished by reason of such damage below its reasonable
value if not missing or undamaged, multiplied by a fraction, the
numerator of which is the number of months remaining in the term of the
Lease after December 31, 1995, and the denominator of which is the
total number of months in the term of the Lease.
9. 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.
10. 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 Commonwealth of Massachusetts, without
giving effect to the conflict of law principles thereof.
11. 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.
12. RATIFICATION. Except as hereinabove specifically assigned and amended,
the Lease is hereby ratified and confirmed.
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IN WITNESS WHEREOF, Lessor, Lessee and Assignee have signed and sealed
this Amendment as of the day and year first above written.
ABERLYN CAPITAL MANAGEMENT LIMITED
PARTNERSHIP
By: Aberlyn Capital Management Company, Inc.,
its general partner
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxx
(Vice) President
IMMUNOGEN, INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Xxxxx X. Xxxxxx, Vice President and Chief
Financial Officer
ORAVAX, INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
President and Chief Executive Officer
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxx
Vice President, Treasurer and Chief Financial
Officer
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IN WITNESS WHEREOF, Lessor, Lessee and Assignee have signed and sealed
this Amendment as of the day and year first above written.
ABERLYN CAPITAL MANAGEMENT LIMITED
PARTNERSHIP
By: Aberlyn Capital Management Company, Inc.,
its general partner
By:
-----------------------------------------
Name:
(Vice) President
IMMUNOGEN, INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Xxxxx X. Xxxxxx, Vice President and Chief
Financial Officer
ORAVAX, INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
President and Chief Executive Officer
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxx
Vice President, Treasurer and Chief Financial
Officer
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