SUBLEASE
Exhibit 10.6
EXECUTION COPY
This Sublease (the “Sublease”) is made as of the 27th day of December 2010 by and between ALKERMES, INC., a Pennsylvania corporation having an address at 000 Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000-0000 (“Sublandlord”), and CORREGIDOR THERAPEUTICS, INC., a Delaware corporation having an address at 000 Xxxxxx Xxxx Xxxx, Xxxxxxx, XX 00000 (“Subtenant”).
WITNESSETH:
WHEREAS, by that certain Lease dated December 6, 2000 (the “Original Lease”), as amended by that certain (a) Side Letter dated Xxxxxxxx 0, 0000 (xxx “Xxxx Xxxxxx”), (x) Amendment A dated August 22, 2002 (“Amendment A”) and (c) Amendment B dated December 4, 2006 (“Amendment B,” and together with the Original Lease, the Side Letter and Amendment A, the “Xxxxxxxxx”) (a copy of which Xxxxxxxxx is attached as Exhibit A hereto), H&N Associates, LLC, a Massachusetts limited liability company (“Overlandlord”), as landlord thereunder, leases to Sublandlord, successor-by-merger to Advanced Inhalation Research, Inc., a Delaware corporation, as tenant thereunder, the land and improvements commonly known as Brickyard Square and described in Article I of the Xxxxxxxxx as being located at 000 Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx (the “Demised Premises”); and
WHEREAS, Subtenant desires to sublease from Sublandlord and Sublandlord desires to sublease to Subtenant, all of the Demised Premises (hereinafter referred to as the “Subleased Premises”).
NOW, THEREFORE, in consideration of the mutual covenants herein contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. DEMISE OF SUBLEASED PREMISES. Sublandlord hereby demises and subleases to Subtenant, and Subtenant hereby hires and takes from Sublandlord, exclusive possession of the Subleased Premises for the term and upon the conditions hereinafter set forth.
2. TERM.
(a) The term of this Sublease (the “Term”) shall commence on the date (the “Commencement Date”) of mutual execution and delivery of this Sublease by Sublandlord and Subtenant and expire on the Expiration Date (as hereinafter defined). On or before the expiration of the Free-Rent Period (as defined in Section 4(c) below), Subtenant shall deliver to Sublandlord a certificate of insurance as set forth in Sections 6.(8) and 6.(16) of the Xxxxxxxxx. In addition to the requirements in Section 6.(8), such certificate shall also name Sublandlord as an additional insured.
(b) The term “Expiration Date” as used herein means (i) December 31, 2015, or if one or more Extension Options (as defined in Section 2(c) below) have been exercised hereunder, the expiration of the last Extension Period (as defined in Section 2(c) below) pursuant thereto, or (ii) such earlier date upon which this Sublease is terminated pursuant to the provisions hereof.
(c) Under the Xxxxxxxxx, Sublandlord has two options to extend the term of the Xxxxxxxxx by a period of five years (each an “Xxxxxxxxx Extension Option” and collectively the “Xxxxxxxxx Extension Options”). The extended term under each Xxxxxxxxx Extension Option shall be an “Xxxxxxxxx Extension Period.” Subtenant shall have two options (each an “Extension Option” and collectively the “Extension Options”) to extend the Term of this Sublease for a period of time coterminous with each Xxxxxxxxx Extension Period (each an “Extension Period”). Subtenant may exercise one or more Extension Options by providing Sublandlord with written notice of Subtenant’s desire for such extension of the term hereof twelve (12) months prior to the expiration of the then current Term (including any Extension Period) of this Sublease; provided Subtenant provides Sublandlord with the Extension Period Security (as defined below). Sublandlord shall, within five (5) business days of the date of such notice, deliver written notice to Overlandlord exercising the applicable Xxxxxxxxx Extension Option, pursuant to the requirements set forth in the Xxxxxxxxx. Sublandlord shall provide Subtenant with a copy of such notice within five (5) business days of when Sublandlord provides such notice to Overlandlord. Each Extension Period shall be on the same terms and conditions as set forth in this Sublease. In connection with the determination of the Fixed Rent during the Extension Period pursuant to Section 13.(B) of the Xxxxxxxxx, Subtenant shall have the right to participate and make any decisions in connection with such process as if it were Tenant under the Xxxxxxxxx. Sublandlord shall not agree to any Fixed Rent for any Extension Period without the prior written consent of Subtenant. In the event that Subtenant shall not direct Sublandlord to exercise an Extension Option, this Sublease shall expire at the end of the then current Term.
Additionally, in connection with a sale of the Manufacturing Facility Equipment (as defined in Section 17 below), Sublandlord shall exercise any then unexercised and exercisable Extension Option to accordingly extend the Term; provided Subtenant provides Sublandlord with the Extension Period Security.
The “Extension Period Security” shall be a letter of credit or other arrangement acceptable to Sublandlord and Subtenant, in an amount not to exceed the sum of the Fixed Rent, Direct Expenses and utilities for the applicable Extension Period, which amount shall reduce quarterly to reflect the amount of time remaining in the Extension Period.
3. SUBORDINATION TO AND INCORPORATION OF THE XXXXXXXXX.
(a) This Sublease is in all respects subject and subordinate to the terms and conditions of the Xxxxxxxxx and to the matters to which the Xxxxxxxxx, including any amendments thereto, is or shall be subordinate. Subtenant agrees that Subtenant has reviewed
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and is familiar with the Xxxxxxxxx, and will not do or suffer or permit anything to be done which would result in a default or breach of the Xxxxxxxxx (beyond any applicable cure period) on the part of Sublandlord under the Xxxxxxxxx or cause the Xxxxxxxxx to be terminated. If, however, the Xxxxxxxxx is terminated prior to its scheduled expiration, for any reason whatever, this Sublease shall likewise terminate without further notice and without further obligation or liability on the part of the parties, except as otherwise set forth herein. Sublandlord shall promptly provide Subtenant with a copy of any notice of default delivered to Sublandlord pursuant to the Xxxxxxxxx.
(b) Except as otherwise expressly provided in this Sublease, the terms, covenants, conditions, rights, obligations, remedies and agreements of the Xxxxxxxxx are incorporated into this Sublease by reference and made a part hereof as if fully set forth herein and shall constitute the terms of this Sublease, mutatis mutandis, Sublandlord being substituted for “Landlord” thereunder, Subtenant being substituted for “Tenant” thereunder, and “Subleased Premises” being substituted for “Premises” and “demised premises” thereunder, except to the extent that such terms do not relate to the Subleased Premises or are inapplicable to, or specifically inconsistent with the terms of this Sublease.
(c) The following provisions of the Xxxxxxxxx shall not be incorporated herein by reference and are expressly excluded from the terms of this Sublease: Sections 3.(A), 3.(B), 3.(C), 3.(E), 4.(A), 4.(B) (the portion of paragraph 1 beginning with the words “including without limitation” and ending with the words “repairs or alterations.”, paragraphs 2 and 3 only), 5.(A), 6.(2) (but only with respect to the restoration and removal provisions thereof as they relate to installations, alterations, additions and improvements existing as of the Commencement Date), 8.(A), 9, 10.(B), 10.(D), 10.(E), 10.(I), 10.(K), 10,(L), 10.(M), 13.(A), 13.(B), Article XIV (paragraph 1 only) and Exhibits B, C and D of the Original Lease, the Side Letter, Amendment A and Amendment B provided, however, that notwithstanding such non-incorporation, this Sublease remains subject and subordinate to all of the foregoing provisions as provided in Section 3(a) above. Notwithstanding the non-incorporation of the provisions set forth in this Section 3(c), Subtenant shall have the benefit of all services of the Overlandlord to be provided pursuant to the Xxxxxxxxx.
(d) Any capitalized terms not defined herein shall have the meaning set forth in the Xxxxxxxxx.
4. RENT.
(a) From and after the Commencement Date, Subtenant shall pay to Sublandlord annual fixed rent (the “Fixed Rent”) in the amounts set forth on Schedule 4 attached hereto. Fixed Rent shall be payable in advance in the monthly installments set forth on Schedule 4, pro-rated on a per diem basis in the case of any partial months during the Term. Except as otherwise set forth herein, each monthly installment of Fixed Rent shall be payable on or before the first day of each month, without notice or demand and without abatement, set-off or deduction.
(b) From and after the Commencement Date, Subtenant agrees to pay to Sublandlord, as additional rent hereunder, an amount equal to all of the Real Estate Taxes (as defined in
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Section 5.(B)(1) of the Xxxxxxxxx) and Operating Expenses (as defined in Section 5.(C)(1) of the Xxxxxxxxx) due from Sublandlord to Overlandlord pursuant to Sections 5.(B) and 5.(C) of the Xxxxxxxxx, respectively (collectively, “Direct Expenses”). Sublandlord shall provide Subtenant with evidence of its payment of the Direct Expenses to Overlandlord within five (5) business days of the date Sublandlord makes such payment to Overlandlord.
(c) So long as Subtenant is not then in material default under this Sublease (beyond any applicable notice and cure period), Fixed Rent and Direct Expenses shall be abated for the period (the “Free-Rent Period”) beginning on the Commencement Date and continuing through March 31, 2011. In addition, during the Free-Rent Period, Sublandlord shall pay all utilities and other operating costs for the Subleased Premises. In the event of a termination of this Sublease prior to December 31, 2015, as a result of any default by or on behalf of Subtenant, any such Fixed Rent and Direct Expenses previously abated hereunder shall be immediately due and payable from Subtenant to Sublandlord.
(d) In addition to the Fixed Rent and Direct Expenses, Subtenant agrees to pay to Sublandlord all Subtenant Surcharges (as hereinafter defined) as additional rent hereunder. As used herein, the term “Subtenant Surcharges” shall mean any and all amounts which become due and payable by Sublandlord to the Overlandlord under the Xxxxxxxxx (without additional charge or profit to Sublandlord) as “Additional Rent” (as such term is defined in the Xxxxxxxxx) which would not have become due and payable but for the acts and/or failures to act of Subtenant under this Sublease or which are otherwise attributable to the Subleased Premises, including, but not limited to: (i) any increases in the Overlandlord’s fire, rent or other insurance premiums resulting from any act or omission of Subtenant, and (ii) any additional rent or charges under the Xxxxxxxxx payable by Sublandlord on account of any other additional service as may be provided under the Xxxxxxxxx, or with the consent of the Overlandlord, Subtenant shall pay any Subtenant Surcharge within fifteen (15) business days after Subtenant’s receipt of the Overlandlord’s statements from Sublandlord. In the event that Subtenant disputes the Subtenant Surcharges, Sublandlord agrees to cooperate with Subtenant in seeking a reduction of such disputed amount from the Overlandlord, and if such reduction is obtained, the corresponding reduction of the Subtenant Surcharge shall be refunded to Subtenant within thirty (30) days thereof.
(e) Any failure or delay by Sublandlord in billing any sum set forth in this Section 4 shall not constitute a waiver of Subtenant’s obligation to pay the same in accordance with the terms of this Sublease; provided, however, that the fifteen (15) day period set forth in Section 4(d) above shall not commence until the Subtenant is in receipt of the Overlandlord’s statements.
(f) The Fixed Rent, Direct Expenses and Subtenant Surcharges, and any other amounts payable pursuant to this Sublease, shall be paid by Subtenant to Sublandlord at the address set forth for notices below, or at such other place as Sublandlord may hereafter designate from time to time in writing delivered in accordance with Section 11 below, in lawful money of the United States of America, by a good unendorsed check or other immediately available funds, subject to collection, as and when the same become due and payable, without demand therefor and without any deduction, set-off or abatement whatsoever. Any other amounts of additional rents and other charges herein reserved and payable shall be paid by Subtenant in the manner and to the persons set forth in the statement from Sublandlord describing the amounts due as
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applicable. All Direct Expenses, Subtenant Surcharges and all other costs, charges and expenses which Subtenant assumes, agrees or is obligated to pay to Sublandlord pursuant to this Sublease shall be additional rent and in the event of nonpayment thereof Sublandlord shall have all the rights and remedies with respect thereto as are herein provided for in case of nonpayment of the Fixed Rent reserved hereunder.
(g) In the event that the “Fixed Rent”, “Real Estate Taxes”, “Operating Expenses” (as each such term is defined in the Xxxxxxxxx) or any other costs or expenses payable by Sublandlord under the Xxxxxxxxx are abated, the Fixed Rent, Real Estate Taxes, Operating Expenses and any other costs or expenses payable by Subtenant hereunder shall xxxxx correspondingly.
5. SECURITY DEPOSIT. Within two (2) days after Subtenant’s execution and delivery of this Sublease, Subtenant shall deliver to Sublandlord an initial security deposit in the amount of One Million Dollars ($1,000,000) (the “Initial Security Deposit”, and together with any Extension Security Deposit held from time to time, the “Security Deposit”) in the form of an unconditional, irrevocable standby letter of credit without documents, i.e., no obligation on Sublandlord’s part to present anything but a sight draft, with Sublandlord as beneficiary, drawable in whole or in part, providing for payment in Boston, Massachusetts, on presentation of Sublandlord’s drafts on sight, providing for multiple draws and multiple successors and otherwise both from a bank and in a form reasonably acceptable to Sublandlord (an “LC”). Notwithstanding the foregoing, Subtenant may elect to initially deliver the Initial Security Deposit in cash form, provided that Subtenant delivers an LC to Sublandlord to replace the cash Initial Security Deposit within forty-five (45) days of the effective date of this Sublease, and upon Sublandlord’s receipt of such LC, Sublandlord shall promptly return the cash balance of the Initial Security Deposit to Subtenant. If any portion of the Security Deposit is used or applied pursuant to this Section 5, Sublandlord shall provide Subtenant with written notice setting forth the amounts so used or applied and the purpose therefor, and Subtenant shall, within ten (10) days after receipt of such notice, deposit cash or a replacement letter of credit (in form and substance subject to the same requirements as the original letter of credit) in an amount sufficient to restore the Security Deposit to the required balance hereunder at such time. Subtenant’s failure to do so shall be a material default and breach of this Sublease by Subtenant.
The Security Deposit shall be held by Sublandlord as security for the faithful performance by Subtenant of all the terms, covenants, and conditions of this Sublease applicable to Subtenant. If Subtenant defaults with respect to any provision of this Sublease beyond all applicable periods of notice and cure, including but not limited to the provisions relating to the condition of the Subleased Premises upon the Expiration Date, Sublandlord may (but shall not be required to) use, apply or retain all or any part of the Security Deposit for the payment of any amount which Sublandlord may spend by reason of Subtenant’s default. The rights of Sublandlord pursuant to this Section are in addition to any rights which Sublandlord may have pursuant to Section 10 below.
Upon the expiration of the initial term (without giving effect to any Extension Periods) hereof or earlier termination of this Sublease, and when all then-existing defaults hereunder have been cured, Sublandlord shall return the Initial Security Deposit or any balance thereof (without
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interest) to Subtenant within three (3) months of such expiration or termination. Failure of Subtenant to deliver a replacement letter of credit to Sublandlord at least thirty (30) days prior to the expiration date of any current letter of credit shall constitute a separate default entitling Sublandlord, following written notice and an opportunity to cure by Subtenant, to draw down immediately and entirely on the current letter of credit and the proceeds shall constitute a cash Initial Security Deposit.
With respect to any Extension Period, Subtenant shall provide to Sublandlord the Extension Security Deposit applicable thereto. Upon expiration or earlier termination of any Extension Period and when all then-existing defaults hereunder have been cured, Sublandlord shall return the Extension Security Deposit or any balance thereof (without interest) to Subtenant within three (3) months of such expiration or earlier termination.
Notwithstanding anything in this Section 5 to the contrary, if the expiration of the initial term or any Extension Period shall also represent the occurrence of the Expiration Date, then upon expiration or earlier termination of this Sublease, Sublandlord shall return any Security Deposit or any balance thereof (without interest) to Subtenant within three (3) months of such expiration or earlier termination, and after Subtenant has vacated the Subleased Premises and all then-existing defaults hereunder have been cured.
6. CONDITION OF SUBLEASED PREMISES. It is agreed that on the Commencement Date Sublandlord shall deliver the Subleased Premises to the Subtenant, and Subtenant will accept the Subleased Premises from Sublandlord, “as is” in its present condition and Sublandlord has no obligation to perform any work therein or contribute to the cost of any work.
7. FAILURE OF OVERLANDLORD TO PERFORM OBLIGATIONS. Sublandlord represents and warrants that the Xxxxxxxxx is in full force and effect and that Sublandlord is not currently in default under the Xxxxxxxxx, nor is there any condition that, with the provision of notice or the passage of time or both, would constitute a default thereunder. Sublandlord shall not do nor permit to be done, nor fail to take any action, required under the Xxxxxxxxx that results in a breach or default under the Xxxxxxxxx. Subtenant acknowledges and agrees that Sublandlord shall have no obligation to provide any services to the Subleased Premises or to perform the terms, covenants, conditions or obligations contained in the Xxxxxxxxx on the part of Overlandlord to be performed, except as expressly provided herein. Subtenant agrees to look solely to Overlandlord for the furnishing of such services and the performance of such terms, covenants, conditions or obligations. In the event that Overlandlord shall fail to furnish such services or to perform any of the terms, covenants, conditions or obligations contained in the Xxxxxxxxx on its part to be performed, Sublandlord shall be under no obligation or liability whatsoever to Subtenant for such failure. In any event, Subtenant shall not be allowed any abatement or diminution of rent under this Sublease because of Overlandlord’s failure to perform any of its obligations under the Xxxxxxxxx, except to the extent that the rent and other sums due under the Xxxxxxxxx are abated, in which case the rent and other sums due hereunder shall xxxxx correspondingly. Sublandlord agrees, however, that in the event that Overlandlord shall fail to provide the services or perform the obligations to be provided or performed by it pursuant to the terms of the Xxxxxxxxx, Sublandlord shall, upon written notice
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from Subtenant, make demand upon Overlandlord pursuant to the terms of the Xxxxxxxxx and to otherwise reasonably cooperate with Subtenant to enforce Overlandlord’s obligations. If such cooperation shall require the expenditure of funds by Sublandlord, Sublandlord shall promptly undertake such action upon the written request of Subtenant if Subtenant agrees to make such expenditure of funds.
8. CASUALTY AND CONDEMNATION. Notwithstanding anything to the contrary contained in this Sublease or in the Xxxxxxxxx, Subtenant shall not have the right to terminate this Sublease as to all or any part of the Subleased Premises, or be entitled to an abatement of Fixed Rent or any other item of rental, by reason of a casualty or condemnation affecting the Subleased Premises unless Sublandlord is entitled to terminate the Xxxxxxxxx or is entitled to a corresponding abatement with respect to its corresponding obligation under the Xxxxxxxxx. If Sublandlord is entitled to terminate the Xxxxxxxxx for all or any portion of the Subleased Premises by reason of casualty or condemnation, Sublandlord shall provide Subtenant with notice of such right within five (5) business days of Sublandlord’s receipt of the Overlandlord’s determination (as more fully described in Section 8.(A) of the Xxxxxxxxx) and Subtenant may terminate this Sublease as to any corresponding part of the Subleased Premises by written notice to Sublandlord given at least five (5) business days prior to the date(s) Sublandlord is required to give notice to Overlandlord of such termination under the terms of the Xxxxxxxxx.
9. CONSENTS. In all provisions of the Xxxxxxxxx requiring the approval or consent of the “Landlord,” Subtenant shall be required to obtain the approval or consent of both Overlandlord and Sublandlord (which consent of Sublandlord shall not be unreasonably withheld, delayed or conditioned). In no event shall Sublandlord be liable for failure to give its consent or approval in any situation where consent or approval has been withheld or refused by Overlandlord, whether or not such withholding or refusal was proper. Notwithstanding the foregoing, Sublandlord and Subtenant shall cooperate in good faith to obtain any such consent of Overlandlord.
10. DEFAULTS. Subtenant covenants and agrees that in the event that it shall default in the performance of any of the terms, covenants and conditions of this Sublease or of the Xxxxxxxxx as incorporated herein (in each case beyond any applicable notice and cure period), Sublandlord shall be entitled to exercise any and all of the rights and remedies to which it is entitled by law, including, without limitation, the remedy of summary proceeding, and also any and all of the rights and remedies specifically provided for in the Sublease and in the Xxxxxxxxx, which are incorporated herein and made a part hereof, with the same force and effect as if herein specifically set forth in full, and that wherever in the Xxxxxxxxx rights and remedies are given to Overlandlord therein named, the same shall be deemed to refer to Sublandlord herein. The notice and cure periods set forth in Section 7.(A) of the Xxxxxxxxx shall apply to all obligations under this Sublease.
11. NOTICE. Whenever, by the terms of this Sublease, any notice, demand, request, approval, consent or other communication (each of which shall be referred to as a “Notice”) shall or may be given either to Sublandlord or to Subtenant, such Notice shall be in writing and shall be sent by hand delivery, reputable overnight courier, or by registered or certified mail, return
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receipt requested, postage prepaid, addressed as follows (or to such other address or addresses as may from time to time hereafter be designated by Sublandlord or Subtenant, as the case may be, by like Notice):
| (a) If intended for Sublandlord, to: | Alkermes, Inc. | |||
| 000 Xxxxxx Xxxxxx | ||||
| Xxxxxxx, Xxxxxxxxxxxxx 00000-0000 | ||||
| Attn: General Counsel | ||||
| (b) If intended for Subtenant, to: | Corregidor Therapeutics, Inc. | |||
| 000 Xxxxxx Xxxx Xxxx | ||||
| Xxxxxxx, Xxxxxxxxxxxxx 00000 | ||||
| Attn: Chief Executive Officer | ||||
All such Notices shall be deemed to have been served on the date of actual receipt or rejection thereof (in the case of hand delivery), or one (1) business day after such Notice shall have been deposited with a reputable overnight courier, or three (3) business days after such Notice shall have been deposited in the United States mails within the continental United States postage prepaid (in the case of mailing by registered or certified mail as aforesaid).
12. BROKER. Each of Sublandlord and Subtenant represents and warrants to the other that it has not dealt, either directly or indirectly, with any real estate agent or broker in connection with this Sublease other than Colliers Xxxxxxxx & Grew (the “Broker”) and Sublandlord shall be solely responsible for all fees of the Broker. Each of Sublandlord and Subtenant shall indemnify the other from and against any and all loss, costs and expenses, including reasonable attorney’s fees, incurred as a result of a breach of such representation and warranty, and Sublandlord shall indemnify Subtenant for any and all loss, costs and expenses, including reasonable attorney’s fees, incurred in connection with or arising from its obligation to pay all fees of the Broker.
13. COUNTERPARTS. This Sublease may be executed in one or more counterparts, and by different parties hereto on separate counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. The parties acknowledge and agree that the signatures of the parties hereto may be delivered via facsimile or email and that such signatures shall be effective to the same extent as delivery of an original signature.
14. SUBTENANT TERMINATION RIGHT. So long as Subtenant is not then in material default under this Sublease (beyond any applicable notice and cure period), Subtenant shall have the one-time right to terminate this Sublease upon written notice (the “Early Termination Notice”) to Sublandlord and the payment to Sublandlord of a fee (the “Early Termination Fee”) in the amount of $1,000,000. If Subtenant shall provide the Early Termination Notice, then on the date set forth on the Early Termination Notice (the “Termination Date”) that is no less than one hundred eighty (180) days after the date of the Early Termination Notice, this Sublease shall automatically terminate as if the Termination Date were the scheduled date for expiration of the term of this Sublease. Sublandlord may retain all or any remaining
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portion of the Security Deposit in satisfaction of the payment of the Early Termination Notice (but not in excess of the amount of the Early Termination Fee). Subtenant shall have no further obligations hereunder.
15. TERMINATION BY SUBLANDLORD. Sublandlord shall have the right, for a period of one hundred eighty (180) days following any Termination Event (as defined below), to terminate this Sublease upon written notice to Subtenant. If Sublandlord shall so exercise its termination right, then on the date that is one hundred eighty (180) days after the date of Sublandlord’s notice to Subtenant, without anything further, this Sublease shall terminate as if such date were the scheduled date for expiration of the term of the Sublease. Subtenant shall have no further obligations hereunder. On such date, Subtenant shall pay to Sublandlord a penalty (the “Early Termination Penalty”) in the amount of $1,000,000, and Sublandlord may retain all or any remaining portion of the Security Deposit in satisfaction of the payment of the Early Termination Penalty (but not in excess of the Early Termination Penalty).
A “Termination Event” shall mean any one of the following: (a) a termination of that certain Asset Purchase and License Agreement between the parties dated December 27, 2010 (the “Asset Purchase Agreement”), (b) the failure of Subtenant to exercise its option under the Asset Purchase Agreement to purchase the Manufacturing Facility Equipment, (c) an “Event of Default” by Subtenant under that certain Promissory Note in the amount of $30MM issued by Subtenant to Sublandlord pursuant to the Asset Purchase Agreement, or (d) an “Event of Default” by Subtenant under that certain Loan and Security Agreement between the parties entered into pursuant to the Asset Purchase Agreement.
16. SUBLANDLORD’S STORAGE AND ACCESS. Notwithstanding anything in this Sublease to the contrary, during the Free-Rent Period Sublandlord shall have the right to store Sublandlord’s furniture, equipment and other materials in the Subleased Premises and to access the Subleased Premises from time to time as Sublandlord shall reasonably require in order to manage and/or dispose of such furniture, equipment and other materials.
17. FURNITURE FIXTURES AND EQUIPMENT. So long as Subtenant is not then in material default under this Sublease (beyond any applicable notice and cure period), in consideration of the payment of Fixed Rent by Subtenant to Sublandlord, and without any additional consideration, Sublandlord hereby grants to Subtenant a license to use the machinery, equipment, instruments, laboratory equipment and apparatus, fixtures, tools, and other tangible assets described on Exhibit B attached hereto and owned by Sublandlord (the “Manufacturing Facility Equipment”). Subtenant acknowledges and agrees that the Manufacturing Facility Equipment is provided in “as-is” condition without any warranty, implied or express, of any kind whatsoever, including any warranty as to the design, quality or condition of the Manufacturing Facility Equipment, any warranty of merchantability or fitness of the Manufacturing Facility Equipment for any particular purpose or as to any other matter relating to the Manufacturing Facility Equipment or any part thereof. Subtenant shall have the right to use the Manufacturing Facility Equipment solely for the Development, Commercialization and Manufacture of Licensed Products on its own behalf or on behalf of its Affiliates or Collaboration Partners (as such terms are defined in the Asset Purchase Agreement), with such activities to be conducted solely at the Subleased Premises, and for no other purpose without the prior written consent of
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Sublandlord, which shall not be unreasonably withheld. Subtenant covenants and agrees with Sublandlord that Subtenant shall not use the Manufacturing Facility Equipment in contravention of the foregoing. In addition Subtenant shall not use the Manufacturing Facility Equipment to manufacture any penicillins, cephalosporins, beta lactams, “biological products” (as defined in 21 CFR 600.3(h)), high potency compounds or non-pharmaceutical products.
Subtenant shall maintain the Manufacturing Facility Equipment at its own expense so as to keep the Manufacturing Facility Equipment in compliance with all applicable laws and in as good condition as the same shall be as of the Commencement Date, reasonable wear and tear and damage by fire or other casualty excepted, and Subtenant shall not remove the Manufacturing Facility Equipment from the Subleased Premises; provided, however, that upon prior written notice to Sublandlord, Subtenant may (a) remove any item of Manufacturing Facility Equipment that is broken and (b) improve the Manufacturing Facility Equipment. Subtenant shall insure the Manufacturing Facility Equipment in appropriate amounts for damage or loss.
So long as Subtenant is not then in material default under this Sublease (beyond any applicable notice and cure period), Subtenant shall have the right to purchase the Manufacturing Facility Equipment pursuant to the terms of the Asset Purchase Agreement. Following any such purchase, the provisions of this Section 17 will be of no further force or effect.
18. ENVIRONMENTAL INDEMNITY, Notwithstanding the incorporation of Section 14.(N) of the Xxxxxxxxx pursuant to the provisions of Section 3(b) of this Sublease, Subtenant shall not have any liability to Sublandlord in connection with the presence of any hazardous substances or materials (“Hazardous Materials”) introduced onto the Demised Premises by Sublandlord prior to the Commencement Date (a “Pre-Existing Condition”), except to the to the extent that any willful, negligent or unlawful act or omission of Subtenant shall exacerbate such Pre-Existing Condition. In addition, with respect to any Pre-Existing Condition, Sublandlord shall indemnify, defend and hold harmless Subtenant and its officers, directors, employees and agents from and against any costs and expenses (including reasonable investigation expenses, legal expenses and attorneys’ fees), liabilities, fines, damages, assessments and/or other losses incurred by any of them and arising from a Pre-Existing Condition. Sublandlord’s obligation to indemnify, defend and hold harmless pursuant to this Section 18 shall survive any termination or expiration of this Sublease.
19. SUCCESSORS AND ASSIGNS. The covenants, conditions and agreements herein contained shall inure to the benefit of and be binding upon Sublandlord, its successors and assigns, and shall be binding upon Subtenant, its successors and assigns, and shall inure to the benefit of Subtenant and only such assigns of Subtenant to whom the assignment by Subtenant has been completed in accordance with the provisions of this Sublease and the Xxxxxxxxx.
[signatures on following page]
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IN WITNESS WHEREOF, Sublandlord and Subtenant herein have duly executed this instrument on the day and year first above written.
| SUBLANDORD: | ALKERMES, INC. | |||||
| By: | /s/ Xxxxxx Xxxx | |||||
| Name: | Xxxxxx Xxxx | |||||
| Its: | Senior Vice President | |||||
| SUBTENANT: | CORREGIDOR THERAPEUTICS, INC. | |||||
| By: | /s/ Xxxxx Xxxxxxxxxx | |||||
| Name: | Xxxxx Xxxxxxxxxx | |||||
| Its: | Chief Financial Officer | |||||
SIGNATURE PAGE TO SUBLEASE
