EXHIBIT 10.24
SUBLEASE
This instrument dated as of February 25, 2002, is a Sublease between
CURIS, INC. (formerly known as Ontogeny, Inc.) (the "Sublessor") and MIMEON,
INC., (the "Sublessee").
The parties to this instrument hereby agree with each other as follows:
ARTICLE I
SUMMARY OF BASIC SUBLEASE PROVISIONS
1.1 BASIC DATA
ALL CAPITALIZED TERMS USED HEREIN SHALL HAVE THE MEANINGS ASCRIBED TO THEM IN
THE PRIME LEASE (hereinafter defined) UNLESS OTHERWISE DEFINED HEREIN.
Scheduled
Commencement Date: Xxxxx 0, 0000
Xxxxxxxxx: Curis, Inc.
Sublessee: Mimeon, Inc.
Premises: Approximately 5,300 feet of space located in the
building known as 27, 33 and 00 Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxxxxx (the "Building"), as shown on
the sketch attached hereto as Exhibit A (all of such
Premises being within 00 Xxxxxxx Xxxxxx). Provided that
sixty (60) parking spaces remain available to Sublessor
under the Prime Lease, Sublessee shall have the right,
as part of the Premises, and at no additional cost, to
utilize ten (10) of said parking spaces as reasonably
determined by Sublessor. In the event that fewer than
sixty (60) parking spaces are available to Sublessor
under the Prime Lease, the parking spaces available to
the Sublessee pursuant to this paragraph shall be
reduced on a prorata basis. The Premises demised under
this Sublease comprise a portion of the Premises (as
defined in the Prime Lease) leased to Sublessor by Prime
Lessor under the Prime Lease (as defined below).
Prime Lease: That certain lease, dated as of November 16, 1995,
between Xxxxxxx X. Xxxxxxxx, Xx., Xxxxx X. Xxxxxxxx, and
Xxxxx X. Xxxxxx, Trustees of Xxxxxxx Realty Trust and
Xxxxxxx Realty Corporation (the "Prime Lessor"), as
lessor, and Sublessor, as lessee, as amended by a First
Amendment to Lease dated October 30, 1997, a Second
Amendment to Lease dated December 22, 1998 and a Third
Amendment to Lease dated June 1, 1999; a copy of the
Prime Lease is attached hereto as Exhibit B.
Rent: Fixed Rent shall be $196,100 per annum (i.e., $16,341.67
per month) during the Term. Additionally, in order that
the Fixed Rent payable to Sublessor hereunder shall be
absolutely net to Sublessor, Sublessee shall pay as
additional rent hereunder (a) Sublessee's Prorata Share
of all amounts in the nature of pass throughs of
operating expenses, taxes, insurance charges and charges
for utility usage payable by Sublessor as tenant under
the Prime Lease to the Prime Lessor in connection with
operating expenses, taxes, insurance charges and utility
charges attributable generally to the Building or the
premises demised under the Prime Lease, including the
Premises, and (b) any expenses, taxes, insurance
charges, and utility charges that are incurred in
connection with its providing of utilities, hazardous
and biohazard waste removal and EHS support to the
extent applicable to Sublessee and/or the Premises. Such
additional rent shall exclude (a) costs attributable
solely to the premises demised under the Prime Lease and
not to the Premises demised hereunder, (b) costs payable
by Sublessor as tenant under the Prime Lease in the
nature of late penalties or interest, damages payable on
account of tenant defaults, accelerated rents or charges
except to the extent any such costs are incurred in
connection with a default by Sublessee under this
Sublease and (c) any costs for utilities or the like
that are separately metered to the Premises and
Sublessee pays directly to the utility company or
service provider.
Prorata Share: 15.4% (i.e., the rentable area of the Premises [5,300
sq. ft.] divided by the rentable area of the premises
demised by the Prime Lease [i.e., 34,500 sq. ft.]),
subject to adjustment if the rentable area of the
Premises or the rentable area of the premises demised by
the Prime Lease changes.
Sublease Term or Term: The approximately thirty (30) month period beginning on
the Commencement Date and expiring on the last day of
the month which includes the thirty (30) months after
the day preceding on the Commencement Date.
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ARTICLE II
PREMISES
2.1 LEASE OF PREMISES
Sublessor hereby leases to Sublessee, and Sublessee hereby accepts and
leases from Sublessor, upon and subject to the terms and provisions hereof and
of the Prime Lease, all of Sublessor's right, title and interest in and to the
Premises for the Sublease Term.
2.2 HABENDUM
Sublessee shall have and hold the Premises for a period commencing (the
"Commencement Date") on the earlier of (a) the Scheduled Commencement Date;
provided that Sublessor has delivered full possession of the Premises to
Sublessee with the work described in Section 3.1 completed, or (b) that date on
which Sublessee commences occupancy of any portion of the Premises, and
continuing for the Term unless sooner terminated as provided in this Sublease.
Sublessor and Sublessee shall execute, upon the request of either, a certificate
acknowledging the Commencement Date of this Sublease when such date has been
established.
2.3 PRIME LEASE
2.3.1 Sublessor hereby represents and warrants that: Sublessor is the
tenant under the Prime Lease; (ii) the Prime Lease is in full force and effect
and that Sublessor has submitted to Sublessee a true and complete copy of the
Prime Lease and that the Prime Lease has not been modified; (iii) Sublessor has
not received any notice of an uncured default thereunder from Prime Lessor, nor
is Sublessor aware of any default thereunder by Sublessor or Prime Lessor or of
any event or condition which, but for the passage of time or the giving of
notice or both, would constitute a default thereunder by Sublessor or Prime
Lessor; (iv) rent and all other payment obligations of Sublessor as tenant under
the Prime Lease due and payable as of the date of this Sublease have been paid;
and (v) Sublessor has obtained the consent of Prime Lessor to this Sublease.
Sublessee warrants and acknowledges that it has reviewed the Prime Lease and is
satisfied with the arrangements therein reflected.
Sublessor also represents that it has used and/or stored in the leased
premises certain hazardous or toxic materials or substances, including without
limitation oil and radioactive materials (collectively, "Hazardous Substances")
regulated by local, state or Federal law (for example, the Federal Comprehensive
Environmental Response Compensation Liability Act of 1980, the Massachusetts
Hazardous Waste Management Act and the Massachusetts Oil and Hazardous Material
Release Prevention Act). Sublessor further represents and warrants that it has
used, stored and disposed of all such Hazardous Substances strictly in
accordance with all applicable laws and that it has not caused or permitted the
release or discharge of any Hazardous Substances in or about the Premises that
has not been fully cleaned up and remediated in accordance with all applicable
laws.
2.3.2 Subject to the provisions of Section 2.3.4 hereof, the Prime Lease is by
this reference incorporated into and made a part hereof, except to the extent
clearly contrary to the terms hereof and except that:
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(i) all references in the Prime Lease to "Landlord", "Tenant",
"Lease" and "Premises", respectively, shall be deemed to refer to
Sublessor, Sublessee, this Sublease and the Premises subleased
hereunder, respectively (provided, however, that (a) any matter
requiring the consent of Prime Lessor shall require the consent of
both the Prime Lessor and Sublessor, (b) any right reserved by Prime
Lessor shall be reserved by both Prime Lessor and Sublessor, and (c)
any insurance that is required to be obtained by the Sublessor as
tenant under the Prime Lease for the benefit of Prime Lessor shall be
required of Sublessee with respect to the Premises for the benefit of
Sublessor and Prime Lessor); and
(ii) the following sections and/or provisions of the Prime Lease
are expressly EXCLUDED from this Sublease (i.e., they shall NOT be
deemed to be incorporated in this Sublease) either because they are
inapplicable or because they are superseded by specific provisions
hereof:
(a) Section I(a) (Leased Premises)
(b) Section I(c) (Parking Area)
(c) Article II (Lease Term)
(d) Article III (Fixed Rent, Options,
Real Estate Taxes and
Operating Expenses)
(e) Section IV(b) (Tenant Allowance and
Initial Improvements)
(f) Section V(b)-(e) (Representations of Prime
Lessor)
(g) Section V(f) (Indemnification by Prime
Lessor)
(h) Section VI(I) (Assignment and Sublease)
(i) Article VII (subject to (Eminent Domain and
Article VII and VIII of this Casualty)
Sublease)
(j) Section X(b) (Notices)
(k) The second paragraph of (Representations by Prime
Section X(e) Lessor)
(1) Article XII (Brokers)
(m) Article XIII (Security Deposit)
(n) Article XIV (Notice of Lease)
(o) First Amendment to Lease (Various Matters)
(p) Second Amendment to Lease (Various Matters)
(q) Third Amendment to Lease (Various Matters)
2.3.3 This Sublease is and shall remain subject and subordinate in all
respects to the Prime Lease and to all renewals, modifications, consolidations,
replacements and extensions thereof. In the event of termination or cancellation
of the Prime Lease for any reason whatsoever with respect to all or any portion
of the Premises, this Sublease shall automatically terminate with respect to all
or such portion of the Premises.
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2.3.4 Sublessor shall have no obligation to provide any services of any nature
whatsoever to Sublessee or to or for the benefit of the Premises or to expend
any money for the repair of the Premises or the Building, and Sublessee agrees
to look solely and directly to Prime Lessor for the furnishing of any such
services, expenditure of any such sums, or observance or performance of any such
obligations. Any representation, warranty or covenant of the Prime Lessor under
the Prime Lease incorporated herein by reference shall, nevertheless, be the
sole responsibility of the Prime Lessor. Sublessor's only obligations under the
Prime Lease with respect to the Premises are to make those payments of rent due
to Prime Lessor thereunder, which payments Sublessor hereby agrees to make,
provided, however, that Sublessee makes timely payment to Sublessor of all rent
payable under this Sublease. Sublessor hereby agrees that, provided Sublessee
makes timely payment to Sublessor of all rent and other charges payable by
Sublessee hereunder, Sublessor shall make timely payment of all rent and other
charges due to Prime Lessor as landlord under the Prime Lease. It is the
intention of the parties that Sublessee comply with, and Sublessee agrees to
comply with, all of the Sublessor's obligations as tenant under the Prime Lease
with respect to the Premises accruing during the Sublease Term to the same
extent and with the same force and effect as if Sublessee were tenant
thereunder. Sublessee shall have no claim against Sublessor for any default by
the Prime Lessor under Prime Lease. If Sublessor, as tenant under the Prime
Lease, is entitled to and exercises any offset or similar rights against Prime
Lessor, which rights are allocable or attributable to the Premises, Sublessee
shall be entitled to a fair and equitable share of such offset or similar
rights. Sublessor hereby assigns to Sublessee all of Sublessor's rights to
enforce Prime Lessor's responsibilities under the Prime Lease with respect to
the Premises. If Prime Lessor shall default under any of its obligations under
the Prime Lease with respect to the Premises, Sublessee shall have the right, at
Sublessee's expense, but in the name of Sublessor, after reasonable written
notice to Prime Lessor, to make demand or prosecute any appropriate action or
proceeding against the Prime Lessor for the enforcement of the obligations of
Prime Lessor with respect to the Premises. Sublessor agrees that it will
cooperate with Sublessee in such actions and proceedings and will sign such
demand, pleadings and/or other papers as may be required or appropriate, to
enable the Sublessee to proceed in Sublessor's name to enforce the obligations
of Prime Lessor; but Sublessee will pay all costs and expenses in the
prosecution of any action or any proceeding so taken by Sublessee and agrees to
defend and indemnify Sublessor against all costs and liability arising
therefrom.
2.3.5 Sublessee shall neither do, nor permit to be done, anything that (i)
would increase Sublessor's obligations to Prime Lessor under the Prime Lease,
(ii) that would cause the Prime Lease to be terminated or forfeited, or (iii)
that would constitute a default under the Prime Lease or would, with the passage
of time, the giving of notice or both, constitute a default under the Prime
Lease. Sublessor shall not amend or modify (nor agreed to amend or modify) the
Prime Lease in any way that would increase Sublessee's obligations or diminish
Sublessee's rights under this Sublease nor shall Sublessor do or permit to be
done, anything that would cause the Prime Lease to be cancelled, terminated or
forfeited or that would increase Sublessee's obligations or diminish Sublessee's
rights under this Sublease, except as herein otherwise permitted (such as,
without limitation, Sublessor's rights to cause the Sublease to be terminated in
the event of a casualty or taking by eminent domain).
2.3.6 Sublessor shall promptly give Sublessee a copy of any notice of default,
termination or otherwise affecting the existence or validity of this Sublease or
relating to any casualty or taking, received by Sublessor or given by Prime
Lessor to Sublessor.
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ARTICLE III
CONSTRUCTION PLAN
3.1 FINISH WORK
To prepare the Premises for Sublessee's initial occupancy thereof,
Sublessor will prior to the Commencement Date construct a demising wall
separating the Premises from the remainder of the premises demised under the
Prime Lease.
3.2 ALTERATIONS AND ADDITIONS
This Section 3.2 shall apply before and during the Term. Sublessee shall
not make any alterations and additions to the Premises, except in accordance
with plans and specifications prepared by an architect, and constructed by a
contractor, first approved by Sublessor, in writing, which approval shall not be
unreasonably withheld. Sublessor shall permit Sublessee and its contractors and
agents to enter the Premises to install fixtures, furnishings and equipment.
Sublessor shall not be deemed unreasonable for withholding approval of any
alterations or additions which (a) involve or might affect any structural or
exterior element of the Building or any area or element or any facility serving
any area of the Building, or (b) will require unusual expense to readapt the
Premises for research and development and laboratory purposes on Sublease
termination or increase the cost of insurance or taxes on the Building. All
alterations and additions shall become a part of the Premises, unless and until
Sublessor, at its option, shall specify the same for removal pursuant to Section
3.4. All of Sublessee's alterations and additions and installation and delivery
of telephone systems, furnishings and equipment shall be coordinated with any
work being performed by Sublessor and shall be performed in such manner and by
such persons as shall maintain harmonious labor relations and not cause any
damage to the Building or interfere with Building operation. Sublessee, before
its work is started, shall: deliver to Sublessor a statement of the names of all
its contractors and subcontractors (and obtain Sublessor's approval of the
identity thereof, as aforesaid) and the estimated cost of all labor and material
to be furnished by them and security satisfactory to Sublessor protecting
Sublessor against liens arising out of the furnishing of such labor and
material; and cause each contractor to carry worker's compensation insurance in
statutory amounts covering all the contractor's and subcontractor's employees
and comprehensive public liability insurance with such limits as Sublessor may
reasonably require, but in no event less than a combined single limit of
$2,000,000, (all such insurance to be written by companies approved by Sublessor
and insuring Prime Lessor, Sublessor and Sublessee as well as the contractors
and Prime Lessor's mortgagees on the Premises), and deliver to Sublessor
certificates of all such insurance. Sublessee agrees to pay promptly when due
the entire cost of any work done on the Premises by Sublessee, its agents,
employees, or independent contractors, and not to cause or permit any liens for
labor or materials performed or furnished in connection therewith to attach to
the Premises or the Building and immediately to discharge any such liens which
may so attach. Subject to the foregoing provisions, Sublessor acknowledges that
Sublessee intends to perform the following work in the Premises: (a) create a
reception area; (b) remove the existing sink and build-in cabinet in the
conference room; and (c) change the existing microscope room located in
Sublessor's premises into a kitchenette (collectively, the foregoing work is
referred to as the "Initial Sublessee Improvements"). The Initial Sublessee
Improvements shall be performed at
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Sublessee's sole cost and expense using Sublessor's general contractor.
Sublessor shall coordinate the performance of the work on Sublessee's behalf.
Prior to making any of the Initial Sublessee Improvements, Sublessor will
prepare plans, specifications and a budget for Sublessee's review at Sublessee's
expense. Once the plans, specifications and budget are approved by Sublessee,
Sublessor shall cooperate with Sublessee to obtain the Prime Lessor's approval
for the Initial Sublessee Improvements. Upon obtaining the Prime Lessor's
approval for the Initial Sublessee Improvements, Sublessor shall cause its
general contractor to perform the Initial Sublessee Improvements in accordance
with the approved plans, specifications and budget, at Sublessee's cost and
expense (it being expressly acknowledged and agreed that Sublessee shall be
solely responsible for any costs in excess of approved budgets unless the same
were authorized by Sublessor without Sublessee's approval). Sublessee shall, as
additional rent, within ten (10) business days of demand, reimburse Sublessor
for any and all costs incurred by Sublessor in connection with the Initial
Sublessee Improvements. At the time that Sublessor shall request the Prime
Lessor's consent to the Initial Sublessee Improvements, Sublessor shall request
the Prime Lessor's agreement that the Initial Sublessee Improvements may remain
in the Premises after the expiration of the Sublease Term and after the
expiration of the term of the Prime Lease. If the Prime Lessor shall agree that
the Initial Sublessee Improvements may remain in the Premises after the
expiration of the Sublease Term and after the expiration of the term of the
Prime Lease, then Sublessee shall have no obligation to remove the Initial
Sublessee Improvements at the expiration of the Sublease Term. If the Prime
Lessor shall not agree that the Initial Sublessee Improvements may remain in the
Premises after the expiration of the Sublease Term and after the expiration of
the term of the Prime Lease, then Sublessee shall on or before the expiration of
the Sublease Term remove the Initial Sublessee Improvements and restore those
affected portions of the Premises to their condition as existed at the
Commencement Date.
3.3 GENERAL PROVISIONS APPLICABLE TO CONSTRUCTION
All construction work required or permitted by this Sublease shall be
done in a good and workmanlike manner and in compliance with all applicable laws
and all lawful ordinances, regulations and orders of governmental authority and
insurers of the Building. The work required of Sublessor pursuant to this
Article III shall be deemed to have been completed by Sublessor and approved by
Sublessee when Sublessee commences occupancy of the Premises.
3.4 REPAIR AND YIELD UP
Sublessee shall keep the Premises in good order, repair and condition,
reasonable wear and tear, damage to the Building, generally (as opposed to
damage primarily to the Premises) and damage by fire or other insured casualty
damage, by eminent domain and damage caused by any failure by Sublessor to
perform its obligations under this Sublease or of Prime Lessor of its
obligations under the Prime Lease, only excepted, and all glass in windows
(except glass in exterior walls unless the damage thereto is attributable to
Sublessee's negligence or misuse) and doors of the Premises whole and in good
condition with glass of the same quality as that injured or broken, and at the
expiration or termination of this Sublease peaceably to yield up the Premises
and all alterations and additions thereto, in good order, repair and condition,
reasonable wear and tear, damage to the Building, generally (as opposed to
damage primarily to the Premises) and damage by fire or other insured casualty
damage, by eminent domain and damage
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caused by any failure by Sublessor to perform its obligations under this
Sublease or of Prime Lessor of its obligations under the Prime Lease, only
excepted, first removing all goods and effects of Sublessee and, to the extent
specified by Sublessor by notice to Sublessee, alterations and additions made by
Sublessee and partitions, and repairing any damage caused by such removal and
restoring the Premises and leaving them clean and neat. Notwithstanding the
foregoing, prior to undertaking any alteration or addition, Sublessee may
inquire of Sublessor whether, upon expiration of this Sublease, such alteration
or addition will be required to be removed, and within fifteen (15) days of such
inquiry, Sublessor shall respond to such inquiry such response to be binding
upon Sublessor. The provisions of the preceding sentence shall in no way be
deemed to permit the Sublessee to undertake alterations or additions not
otherwise permitted hereunder nor shall it limit the Sublessor's right to refuse
to consent to any such alteration or addition.
ARTICLE IV
ASSIGNMENT AND SUBLEASE
4.1 ASSIGNMENT; SUBLEASE
Sublessee shall not, without prior consent of Sublessor, which consent
shall not be unreasonably withheld, assign, mortgage, pledge or otherwise
transfer this Sublease or make any sublease, or permit occupancy of the Premises
or any part thereof by anyone other than Sublessee; any assignment or sublease
made without such consent shall be void; as additional rent, Sublessee shall
reimburse Sublessor promptly for reasonable legal and other expense incurred by
Sublessor in connection with any request by Sublessee for consent to assignment
or subletting; no assignment or subletting shall affect the continuing primary
liability of Sublessee (which, following assignment, shall be joint and several
with the assignee); and no consent to any of the foregoing in a specific
instance shall operate as a waiver in any subsequent instance. Notwithstanding
anything in this paragraph to the contrary, provided that ten (10) days' prior
notice is given to Sublessor (unless due to the confidential nature of the
transaction prior notice cannot be lawfully given in which event notice shall be
given as soon as Sublessee may be permitted to do so), the prior approval of the
Sublessor and the Prime Lessor shall not be required for the assignment (a
"Permitted Assignment") of this Sublease to any corporation or business entity
into or with which the Sublessee is merged or consolidated or to which
substantially all of the Sublessee's assets or corporate stock are transferred
provided that in any such event (i) following any such transfer Sublessee has
(or in the case of a merger or consolidation, the successor to Sublessee has) a
creditworthiness at least as satisfactory to Sublessor (in its sole discretion)
as the creditworthiness of Sublessee both as of the date hereof and the date
immediately prior to such transfer and (ii) the successor agrees directly with
Sublessor by written instrument in form satisfactory to Sublessor, to be bound
by all the obligations of Sublessee hereunder, including without limitation, the
covenant against further assignment and subletting. Sublessor agrees to respect
the confidential nature of any information delivered to it pursuant to this
paragraph.
In the event that Sublessee requests the right to undertake an
assignment or sublease (other than a Permitted Assignment), Sublessor shall have
the right to terminate this Sublease in the event of an assignment (or to
recapture the portion of the Premises proposed to be sublet in
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the event of a sublease) as of the proposed effective date of such assignment or
sublease unless Sublessee, within 10 days after receipt of Sublessor's notice of
its intention to terminate or recapture, withdraws its request to assign or
sublease. Furthermore, in the event of such an assignment or sublease, Sublessee
shall pay to Sublessor, as additional rent hereunder, any sums payable to
Sublessee under such sublease or assignment in excess of the amounts payable by
Sublessee to Sublessor with respect to the space so subleased or assigned after
deducting Sublessee's reasonable out of pocket costs incurred in connection with
such sublease or assignment.
ARTICLE V
USE
5.1 PERMITTED USE
Sublessee agrees that the Premises shall be used and occupied for the
use thereof specified in the Prime Lease and for no other purpose or purposes.
Tenant shall not use any organisms or permit the presence of any organisms in
the Premises other than non-pathogenic organisms at no higher than a BL2 level,
and, in any event, in compliance with all biosafety and containment regulations.
During the Sublease Term, Sublessee shall assume and maintain exclusive control
of the Premises.
ARTICLE VI
RENT AND UTILITIES
6.1 RENT
(a) The Rent (specified in Section 1.1 hereof) and any
additional rent or other charges payable pursuant to this Lease shall be payable
by Sublessee to Sublessor at Sublessor's mailing address (or such other place as
Sublessor may from time to time designate by notice to Sublessee).
(b) Rent (including any payment required pursuant to Section
1.1 of Sublessee's Prorata Share of all estimated monthly installments on
account of additional rent payable by Sublessor to Prime Lessor under the Prime
Lease) shall be payable in advance on the first (1st) day of each and every
calendar month during the term of this Sublease. Sublessor shall promptly
deliver to Sublessee (i) a copy of any year end statement of operating expenses
that Sublessor receives from Prime Lessor, and (ii) a copy of documentation
related to tax bills received by Sublessor from Prime Lessor. Promptly after
Sublessor and Prime Lessor have made the appropriate adjustments among
themselves on account of such actual operating expenses and real estate taxes,
the amounts paid by Sublessee as its Prorata Share of such estimated
installments shall be adjusted between Sublessor and Sublessee. The parties'
obligations hereunder to make such adjustments shall survive the expiration or
termination of this Sublease.
(c) All items of additional rent other than those items in the
nature of pass-throughs payable by Sublessor to Prime Lessor under the Prime
Lease shall be due and payable
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within thirty (30) days after receipt by Sublessee of a statement, in reasonable
detail, showing the costs incurred by Sublessor and calculating Sublessee's
appropriate share thereof; upon request from Sublessee, Sublessor shall furnish
Sublessee with copies of invoices, purchase orders or other documentary evidence
of such costs.
(d) Rent for any partial month shall be paid by Sublessee to
Sublessor at such rate on a prorata basis. Other charges payable by Sublessee on
a monthly basis, as hereinafter provided, shall likewise be prorated.
(e) Sublessee shall be entitled to an equitable share of all
rent abatements which Sublessor actually receives under the Prime Lease and
which are equitably allocable to the Premises.
All Rent and other amounts due under this Sublease shall be paid without
demand, offset or deduction.
6.2 LATE PAYMENTS; ADDITIONAL RENT
If any installment of Rent, additional rent or other charges is not paid
on or before the date such payment is due and payable, then Sublessee shall pay
to Sublessor a late charge equal to one and one-half times the amount of the
late charge payment that would be payable to Prime Lessor on account of a
similar default under the Prime Lease (provided that no such late charge payment
shall be payable if (a) Sublessee has not previously received notice of a
similar late payment more than two times and (b) Sublessee makes such payment
within five (5) days of notice that the same is late). In addition, if Sublessee
shall fail to make any such payment within ten (10) days after the due date,
such payment shall bear interest at the rate per annum which is the sum of three
percent (3%) per annum plus the "prime rate" then being charged by Fleet Bank
(or any successor thereto) from the date such payment became due to the date of
payment thereof by Sublessee; provided, however, that nothing contained herein
shall be construed as permitting Sublessor to charge or receive interest in
excess of the maximum legal rate then allowed by law. Such late charge and
interest shall constitute additional rent due and payable hereunder with the
next installment of Fixed Rent due hereunder.
Notwithstanding anything herein to the contrary, the Sublessee shall not
be deemed to have waived any rights hereunder if it makes any payment hereunder
indicating that such payment is made under protest.
6.3 UTILITY, CLEANING AND JANITORIAL COSTS
Sublessee shall also pay, as additional rent, its Prorata Share of all
utilities charged to the premises demised by the Prime Lease but not separately
metered or submetered for the Premises but which serve the Premises; such amount
shall be paid within thirty (30) days after delivery of an invoice therefor in
reasonable detail. Sublessor shall have the same rights and remedies for the
nonpayment by Sublessee of such utility costs that Sublessor has under this
Sublease for failure of Sublessee to pay rent. Notwithstanding the foregoing,
Sublessor and Sublessee will cooperate in having any charges specified in this
paragraph billed directly to Sublessee, in which event such charges shall be
paid on time by Sublessee to the provider of the utility or service, as
additional rent hereunder.
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Sublessee shall be responsible for contracting for all cleaning and
janitorial services required by Sublessee for the Premises.
6.4 INTERRUPTION OF SERVICES
In the event that the Premises are untenantable as a direct result of
Sublessor's negligent acts or omissions causing an interruption of services for
a period of 180 consecutive days, then Sublessee shall have the right to cause
the Term of this Sublease to expire upon thirty (30) days' notice delivered to
the Sublessor no later than ten (10) days following said 180th consecutive day
and this Lease shall terminate on the date set forth in such notice unless such
interruption of services is cured within said thirty (30) days, in which event,
such termination shall be of no force and effect.
ARTICLE VII
CASUALTY
7.1 CASUALTY AND RESTORATION
If the Premises, or any part thereof, shall be damaged or destroyed by
fire or other casualty then Sublessee shall promptly notify Prime Lessor and
Sublessor. If damage is of the type which entitles Prime Lessor or Sublessor to
terminate the Prime Lease and Prime Lessor or Sublessor so elects to terminate
the Prime Lease, then upon such termination this Sublease shall similarly
terminate. In addition, Sublessee shall have the right to terminate this
Sublease in the manner and under the circumstances set forth in Article VII(b)
of the Prime Lease as if fully set forth herein. Sublessee acknowledges that
Sublessor shall, in no event, have any obligation whatsoever to rebuild or
restore any damage to the Premises.
If during the Sublease Term the Building shall be partially or
substantially damaged by fire or casualty and if such partial or substantial
damage shall materially interfere with the Sublessee's use of the Premises as
contemplated by this Sublease, a just amount of the rent and other charges
payable by the Sublessee hereunder shall be equitably abated or adjusted for the
period in which, by reason of such damage, there is such interference with the
use of the Premises, but only to the extent that Sublessor is also entitled to
an abatement under the Prime Lease on account of such fire or casualty that is
equitably allocable to the Premises subleased hereunder.
ARTICLE VIII
EMINENT DOMAIN
8.1 EMINENT DOMAIN
Should the Building or any part thereof be taken by eminent domain and
such taking (or damage caused by such taking) is of the type which entitles
Prime Lessor or Sublessor to terminate the Prime Lease and Prime Lessor or
Sublessor so elects to terminate the Prime Lease, then upon such termination,
this Sublease shall cease and come to an end, and the Rent shall be apportioned
as of the date of the termination of the Prime Lease. In addition, Sublessee
shall
11
have the right to terminate this Sublease in the manner and under the
circumstances set forth in Article VII(a) of the Prime Lease as if fully set
forth herein.
In the event of such a taking, the rent and other charges payable
hereunder, or a fair and just proportion thereof according to the nature and
extent of the loss of use, shall be suspended or abated, but only to the extent
that Sublessor is also entitled to an abatement or suspension under the Prime
Lease on account of such taking that is equitably allocable to the Premises
subleased hereunder.
Sublessor reserves, and Sublessee grants to Sublessor all rights which
the Sublessee may have for damages or injury to the Premises for any taking by
eminent domain, except for damage to the Sublessee's fixtures, personal property
or equipment, if any, and the Sublessee's right to relocation expenses, if any.
ARTICLE IX
MISCELLANEOUS PROVISIONS
9.1 SECURITY DEPOSIT
Sublessor acknowledges receipt from Sublessee of $60,900.00 (together
with interest earned thereon, the "Security Deposit") to be held in a segregated
account by Sublessor as security (with any interest thereon being payable to
Sublessor), for and during the Sublease Term, to be returned to Sublessee within
thirty (30) days after the expiration of the Term or the termination of this
Sublease provided there exists no breach of any undertaking of Sublessee.
Upon the occurrence of any default by Sublessee hereunder, Sublessee
agrees that Sublessor may apply all or any part of the Security Deposit to any
obligation of Sublessee hereunder. If all or any portion of the Security Deposit
is applied to any obligation of Sublessee hereunder, Sublessee shall immediately
upon request by Sublessor restore the Security Deposit to its original amount.
Sublessee shall not have the right to call upon Sublessor to apply all or any
part of the Security Deposit to cure any default or fulfill any obligation of
Sublessee, but such use shall be solely in the discretion of Sublessor. Upon any
conveyance of the Premises by Sublessor to Sublessor's grantee or transferee,
the Security Deposit shall be delivered by Sublessor to Sublessor's grantee or
transferee. Upon any such delivery, Sublessee hereby releases Sublessor herein
named of any and all liability with respect to the Security Deposit, its
application and return, and Sublessee agrees to look solely to such grantee or
transferee. It is further understood that this provision shall also apply to
subsequent grantees and transferees.
9.2 FINANCIAL STATEMENTS
Upon request of Sublessor, Sublessee shall provide to Sublessor copies
of Sublessee's most recent financial statements and balance sheets, certified to
by an officer of Sublessee. Sublessor shall keep all information from such
financial statements and balance sheets confidential, provided, however, that
Sublessor shall have the right to disclose such information to Prime Lessor to
obtain its consent to this Sublease or to any bona fide lender or investor, and
Sublessor shall have the right to disclose such information to the extent
required by legal authorities or regulators.
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9.3 BROKERAGE
The parties represent that they have dealt with no real estate broker or
agent in connection with this Sublease and in the event of any brokerage claims
from any individual or entity against Sublessor predicated upon prior dealings
with Sublessee, Sublessee hereby agrees to defend, indemnify and hold harmless
Sublessor from and against any such claim, and in the event of any brokerage
claims from any individual or entity against Sublessee predicated upon prior
dealings with Sublessor, Sublessor hereby agrees to defend, indemnify and hold
harmless Sublessee from and against any such claim.
9.4 NOTICES
Whenever by the terms of this Sublease notice, demand or other
communication shall or may be given, either to Sublessor or to Sublessee, the
same shall be adequately given if in writing and delivered by hand or sent by
registered or certified mail, postage prepaid:
If intended for Sublessee, addressed to it as follows:
Prior to the Commencement Date:
c/o Polaris Venture Partners
0000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxxx
From and after the Commencement Date: at the Premises
in either case with a copy to Sublessee's attorney, Xxxxx Xxxx & Xxxxx
LLP, Xxx Xxxx Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000; Attention:
Xxxxxx X. Xxxxxxxx, Esquire (or to such other address or addresses as
may from time to time hereafter be designated by Sublessee by like
notice).
If intended for Sublessor, addressed to it at the Premises with a copy
to Sublessor's attorney, Xxxx and Xxxx LLP, 00 Xxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, Attention: Xxxxx X. Xxxxxxx, Esquire (or to such
other address or addresses as may from time to time hereafter be
designated by Sublessee by like notice).
All such notices shall be effective upon receipt or refusal to receive.
9.5 BINDING OBLIGATION
Each person executing this Sublease on behalf of Sublessor or Sublessee
warrants that such party is a duly existing and valid Massachusetts corporation
(or if not, that such party is a corporation duly qualified to do business in
Massachusetts), that such party has duly executed and delivered this Sublease,
that the execution and delivery of, and the performance by such party of its
obligations under, this Sublease are within the powers of such party and have
been
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duly authorized by all corporate action, and that this Sublease is a valid and
binding obligation of such party in accordance with its terms.
9.6 NO RECRUITING
During the term of this Sublease and for the one (1) year period
following the expiration or earlier termination of this Sublease, neither
Sublessor nor Sublessee shall employ any personnel employed by the other party
during the Term of this Sublease (with the exception of Doros Platika, Xxxxxx
Xxxxxxxx and Xxxxxx Xxxxxxxxx) without the prior written consent of the other
party hereto, which consent may be withheld in such party's sole discretion.
9.7 RECOGNITION AND NON-DISTURBANCE
Sublessor shall use reasonable efforts to obtain a recognition or
non-disturbance agreement from the Prime Lessor, any mortgagee of the Prime
Lessor or Sublessor's leasehold mortgagee.
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EXECUTED UNDER SEAL as of the date and year first above written.
Sublessor: CURIS, INC.
By: /s/ illegible
---------------------------
Its
hereunto duly authorized
Sublessee: MIMEON, INC.
By: /s/ X.X. Xxxxxxxxx, Ph.D.
---------------------------
Its
hereunto duly authorized
Prime Lessor executes this Sublease to acknowledge its consent thereto.
XXXXXXX REALTY TRUST XXXXXXX REALTY CORPORATION
By
/s/ Xxxxx X. Xxxxxx /s/ Xxxxx X. Xxxxxx
---------------------------------- ------------------------------
Xxxxx X. Xxxxxx, Trustee Xxxxx X. Xxxxxx, Treasurer
Its hereunto duly authorized Its hereunto duly authorized
