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EXHIBIT 10.47
SUBLEASE
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1. THIS SUBLEASE is made this 14th day of May, 1993 between MYOCRT, INC., a
Massachusetts corporation ("SUBLESSOR"), which expression shall include its
successors and assigns where the context so permits and MYCO PHARMACEUTICALS
INC., a Delaware corporation, ("SUBLESSEE"), which expression shall include its
successors and assigns, where the context so permits.
Sublessor hereby subleases the Leased Premises, as described in Paragraph 2
of this Sublease, to Sublessee, and Sublessee hereby subleases the Leased
Premises from Sublessor, upon the terms, provisions and conditions set forth in
this Sublease, subject to the terms, provisions and conditions of the Prime
Lease referred to hereinafter.
Subject to the terms and conditions of the Consent Agreement, a copy of
which is attached as Exhibit D hereto, this Sublease is subject and subordinate
to a certain Prime Lease between Xxxxxx X. Xxxxx, K. Xxxxxx Xxxxxxxx, and Xxxxx
X. Xxxx, Trustees of Old Cambridge Realty Trust, under a Declaration of Trust
dated December, 1982 recorded with Middlesex South District Registry of Deeds at
Book 14828, Page 324, also filed with the Middlesex South Registry of the Land
Court as Document #632431, and not individually (hereinafter LESSOR or MASTER
LESSOR) and MYOCRT, INC. dated as of May 14, 1993.
Except as may be inconsistent with the terms of this Sublease, all the
terms, covenants, and conditions in the Prime Lease apply to this Sublease as if
SUBLESSOR were the LESSOR under the Prime Lease and SUBLESSEE were the LESSEE
under it.
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However, no subsequent changes in the Prime Lease which increase the obligations
or diminish or reduce the rights of the LESSEE thereunder, shall increase the
obligations or diminish or reduce the rights of the SUBLESSEE under this
Sublease, unless and until SUBLESSOR has obtained the written consent of the
SUBLESSEE. SUBLESSEE shall be given prompt notice and copies of any and all
changes to the Prime Lease or any assignment, subletting or consolidation
thereunder. In case of any breach of this Sublease, SUBLESSOR shall have all the
rights against SUBLESSEE that would be available to the LESSOR against the
LESSEE under the Prime Lease if the breach were by the LESSEE under the Prime
Lease. SUBLESSEE shall indemnify and hold SUBLESSOR harmless from and against
all claims by reason of any breach or default on the part of SUBLESSEE which
thereby constitutes a breach or default of SUBLESSOR under the Prime Lease.
SUBLESSEE acknowledges that LESSOR may exercise the SUBLESSOR's rights directly
against SUBLESSEE for breach of this Sublease, however, SUBLESSEE'S liability
shall be limited to the type of relief provided for under this Sublease.
SUBLESSOR consents and acknowledges that SUBLESSEE may directly request from
LESSOR that LESSOR provide to SUBLESSEE Building Services and Building
Replacements, as hereinafter defined, that LESSOR has otherwise agreed to
provide to SUBLESSOR under the Prime Lease to the same extent that SUBLESSOR
would otherwise be entitled to receive said services from Prime Lessor.
SUBLESSEE represents that it has read and is familiar with the terms of the
Prime Lease, which is attached hereto as Exhibit C.
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Notwithstanding the foregoing, SUBLESSOR shall have no obligation to make
repairs and/or replacements (Building Replacements) to the Leased Premises, the
Building, or the Complex, as those terms are hereinafter defined. The SUBLESSOR
shall have no obligation to provide any services and utilities to the Leased
Premises, including, without limitation, heating, ventilation, air conditioning,
electricity, hot and cold water, and janitorial and other building maintenance
services (collectively "Building Services"). SUBLESSEE agrees to look solely to
the Prime LESSOR for the performance of Building Services and Building Repair
and Replacements. SUBLESSEE holds harmless the SUBLESSOR from any liability,
damage, cost, or expenses incurred by the SUBLESSEE arising out of or related to
the failure of Prime Lessor to perform its covenants and agreements under the
Prime Lease. Upon execution of this Lease (i) SUBLESSOR and SUBLESSEE shall
execute a Notice of Lease in the form of Exhibit E hereto, (ii) SUBLESSOR shall
deliver (a) the consent of the Prime Lessor in the form of Exhibit D hereto, and
(b) Subordination, Non Disturbance and Attornment Agreements from the holders of
all mortgages affecting the Lot, the Building and the Complex, in the form of
Exhibit F hereto.
2. LEASED PREMISES:
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The "Leased Premises" shall consist of the entire third floor, a portion of
the basement, and shaft spaces in Building No. 300 (the "Building"), located in
the mixed use retail and office and laboratory complex in Cambridge,
Massachusetts known as and referred to as "One Xxxxxxx Square" (the "Complex"),
as
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described in the Exhibit B hereto, which third floor space contains eleven
thousand five hundred and twenty six (11,526) rentable square feet of space,
more or less, and which basement space contains one hundred twenty (120)
rentable square feet, more or less, and which shaft space contains one hundred
and four rentable square feet more or less, as is outlined on the plan contained
in Exhibit Al (herein called the "Leased Premises").
The Leased Premises shall have as appurtenant thereto: (a) the right to use
in common with others entitled thereto, the entrances, lobbies, hallways,
stairways, walkways, sidewalks, driveways, loading docks, elevators and other
common facilities in the Building, and on the land constituting the Lot more
particularly described in Exhibit B hereto (herein called the "Lot"), necessary
or appropriate for the intended use and the approved construction of the Leased
Premises (so long as SUBLESSEE complies with the reasonable rules and
regulations of the SUBLESSOR with respect to these appurtenant rights and which
rules are applicable to and consistently applied to all other tenants in the
Building), for access to and enjoyment of the Leased Premises, or any portion
thereof, and (b) the pipes, conduits, wires, and appurtenant equipment serving
the Leased Premises, or portion thereof, in common with other portions of the
Building containing any part of the Leased Premises, subject, however, to the
following rights which are expressly excepted and reserved by PRIME LESSOR in
the Prime Lease.
Subject to PRIME LESSOR's reserved rights specified in the Prime Lease,
paragraph 2, subparagraphs (i), (ii), and (iii), there
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shall be appurtenant to the Leased Premises the right to park twenty three (23)
passenger motor vehicles (the "Parking Rights") in the parking garage which is
located appurtenant to the Lot on Binney Street, commonly known as the OKS
Garage. SUBLESSOR reserves the right to designate the locations of the spaces to
be utilized for such parking rights by written notice to SUBLESSEE, and to
change the location of any or all of such spaces by notice to SUBLESSEE at any
time and from time to time as SUBLESSOR shall solely determine; provided however
that SUBLESSEE'S parking spaces shall at all times be located within the indoor
parking garage and not in separate outdoor lots. The parking spaces provided
hereunder need not be contiguous. SUBLESSOR agrees that to the extent guest
parking privileges are afforded in connection with the OKS Garage, they shall be
made available to SUBLESSEE to the same extent as they are made available to the
other tenants in the Complex.
3.1 TERM. The term (the "term") of this Sublease shall be for a period of
ten (10) years following the "Rent Commencement Date". The "Rent Commencement
Date" shall be the date of the earlier to occur of:
(a) The date upon which the Leased Premises are, after the completion of
tenant improvements, "ready for occupancy" (as defined in Paragraph 3.2
below) or
(b) six months after the Sublease Commencement Date, as that term is
defined in Paragraph 3.1.1. However, in the event of Sublessor caused
delays, including any delays in obtaining appropriate orders of the
Bankruptcy Court to
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permit financing of the tenant improvements or delays of the Prime Lessor
arising out of consummation of its Bankruptcy Plan, or force majeure events
unrelated to construction which affect the Building or the Lot as a whole
(but not tenant caused delays or force majeure events related to
construction or which do not affect the Building or the Lot as a whole)
which cause the construction of the tenant improvements to be delayed
beyond six months from the date of Sublease execution, the Rent
Commencement Date shall be extended by a period of time commensurate with
said Sublessor caused delay or applicable force majeure event. It is
expressly understood that the failure of the Sublessor to timely make
payment of its pro rata portion of the costs of the Tenant Improvements,
after Sublessee has complied with all of the preconditions to payment of
said costs, which failure to pay results in construction delays and is
unrelated to a dispute between the parties involving the adequacy and
sufficiency of the construction, shall constitute Sublessor caused delay.
3.1.1. CONDITION OF PREMISES. The SUBLESSOR shall deliver the Leased
Premises to the SUBLESSEE in their present "as is" condition, broom clean and
free of any other tenants, on the Sublease Commencement Date. SUBLESSOR makes no
representations or warranties concerning the condition of the Leased Premises or
their suitability for SUBLESSEE's purposes. The Sublease Commencement Date shall
be May 14, 1993.
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3.2. COMPLETION OF IMPROVEMENTS. The Leased Premises shall be considered
"ready for occupancy" on the date upon which the improvements detailed in the
final plans and specifications referred to herein, to be constructed by
SUBLESSEE (the "Tenant Improvements") with respect to the Leased Premises are
substantially completed, and SUBLESSEE is given a copy of a certificate of
occupancy issued by the City of Cambridge Building Department covering the
Leased Premises. The Leased Premises shall be deemed substantially completed
notwithstanding that completion of work and adjustment of equipment and fixtures
or minor items of uncompleted work (so-called "punch list" work items) remain to
be done, if such work can be completed after occupancy has been taken without
causing unreasonable interference with SUBLESSEE's use of the Leased Premises.
3.3. LESSEE'S IMPROVEMENT WORK. With respect to the construction work to be
completed by SUBLESSEE at the Leased Premises ("the Tenant Improvements"),
SUBLESSEE shall deliver to SUBLESSOR within ten (10) business days after
execution of this Sublease, preliminary plans and specifications for the
construction of any such improvements to the Leased Premises. After the
SUBLESSOR's approval of the preliminary plans and specifications, the SUBLESSEE
shall submit detailed plans and specifications to the SUBLESSOR for approval.
All such plans and specifications shall be subject to approval by SUBLESSOR in
the exercise of SUBLESSOR's reasonable judgment, which approval shall not be
unreasonably withheld or delayed. Notice of disapproval, if any, by SUBLESSOR
shall be served upon SUBLESSEE within five
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business (5) days of receipt by SUBLESSOR of the preliminary plans and
specifications, as the case may be. Any such notice of disapproval shall include
therein the reasons for disapproval. Failure on the part of the SUBLESSOR to
respond within the five business (5) day period shall be deemed to be approval
of that particular set of plans and specifications. Provided that the final
plans and specifications are in the form substantially similar to the
preliminary plans and specifications previously approved by the SUBLESSOR, the
SUBLESSOR shall approve the final plans and specifications. Once approved,
SUBLESSEE agrees to perform, or have performed, the construction and improvement
work, identified on the detailed plans and specifications diligently and
completely and to perform such work in a good and workmanlike manner,
substantially in conformance with the plans and specifications earlier approved,
or deemed approved by SUBLESSOR. SUBLESSOR also reserves the right to reasonably
approve contractors. Notice of disapproval by SUBLESSOR of contractors, if any,
shall be served upon SUBLESSEE within three (3) business days of receipt by
SUBLESSOR of a notice from SUBLESSEE identifying the contractor. Any such notice
of disapproval by SUBLESSOR of contractors shall include therein the reasons for
disapproval. Failure on the part of SUBLESSOR within said three (3) business day
period shall be deemed to be approval of that particular contractor. SUBLESSOR
grants preapproval to use GLC as laboratory consultants. SUBLESSEE shall
indemnify and hold SUBLESSOR harmless for all damages which may be occasioned to
the SUBLESSOR by reason of said construction work.
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With respect to all such SUBLESSEE work, SUBLESSEE further agrees as
follows: that such work shall commence only after all required municipal and
other governmental permits and authorizations have been obtained (the SUBLESSOR
agreeing to join in any application therefor and reasonably cooperate with
SUBLESSEE) at SUBLESSEE's expense whenever necessary, and all such work shall be
done in a good and workmanlike manner in compliance with building and zoning
laws and with all other laws, ordinances, regulations and requirements of all
federal, state and municipal agencies, and in accordance with the requirements
and policies issued by any insurer of SUBLESSOR or SUBLESSEE with respect to the
amount and type of insurance to be carried with respect to said SUBLESSEE's
work; that all such work shall be prosecuted with reasonable dispatch to
completion; that at all times when any such work is in progress, SUBLESSEE shall
maintain or cause to be maintained adequate workmen's compensation insurance for
those employed in connection therewith with respect to whom death or injury
could be asserted against SUBLESSOR, the SUBLESSEE or the Leased Premises and
comprehensive general liability or builder's risk insurance (for mutual benefit
of SUBLESSEE and SUBLESSOR) in coverages reasonably approved by SUBLESSOR; and
that all such work of SUBLESSEE shall be coordinated with any work being
performed by SUBLESSOR and other tenants of the building in which the work is
taking place to the extent reasonable and to the extent such coordination does
not cause undue delay in the completion of SUBLESSEE's work and that all such
work of SUBLESSEE shall be performed in such manner as
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to maintain harmonious labor relations and not to unreasonably interfere with
the operation of the Building or the construction work of others and SUBLESSOR
reserves the right to obtain an injunction to stop SUBLESSEE's work in any such
event or to exercise any right set forth in Paragraph 18 of this Sublease,
except that nothing herein shall obligate SUBLESSEE to use union or non-union
contractors.
SUBLESSEE shall not permit any mechanics' liens, or similar liens to remain
upon the Leased Premises for labor and materials furnished to SUBLESSEE or
claimed to have been furnished to SUBLESSEE in connection with the work of the
SUBLESSEE of any character performed or claimed to have been performed at the
direction of SUBLESSEE, and shall cause any such lien to be released of record
or sufficiently bonded forthwith without cost to SUBLESSOR. To that end,
SUBLESSEE shall, upon completion of all improvements, certify to SUBLESSOR that
all contractors, subcontractors and other independent contractors have been paid
in full, except as to those contractors, subcontractors and other independent
contractors with whom SUBLESSEE has a bona fide dispute. In the event SUBLESSEE
has a bona fide dispute with any such contractor, subcontractor or independent
contractor, SUBLESSEE shall notify SUBLESSOR of the identity of such contractor
and the amount of the bona fide dispute but SUBLESSEE shall not be relieved of
its obligation not to permit any mechanics' liens, or similar liens to remain
upon the Leased Premises and to cause any such lien to be released of record or
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sufficiently bonded forthwith, all as set forth in this Paragraph 3.3.
At the reasonable request of the SUBLESSEE, SUBLESSEE shall have such
access to the space of other tenants within the Building to accomplish the
foregoing construction work as the SUBLESSOR is able to provide to the SUBLESSEE
consistent with other leases.
SUBLESSOR hereby appoints Xxxxxx Xxxxxx as its Construction Representative
in connection with the completion of the Tenant Improvement work. Any action or
failure to act by the Construction Representative shall be deemed to be the
action or failure to act of the SUBLESSOR. SUBLESSOR shall only change its
Construction Representative after having given written notice to Sublessee.
All work necessary to prepare the Leased premises for SUBLESSEE'S occupancy
shall be performed by SUBLESSEE. Subject to reasonable rules and regulations
established at a pre-construction meeting with SUBLESSOR'S Construction
Representative, SUBLESSOR shall permit Sublessee to enter the Leased Premises
and other portions of the Building for the purpose of performing the Tenant
Improvement work. Any such entry shall be at SUBLESSEE'S sole risk and expense
and SUBLESSOR shall not be responsible for any damage or loss to any property or
installations which may be placed in the Leased Premises prior to the Rent
Commencement Date, unless caused by SUBLESSOR, its agents, representatives,
employees or servants. SUBLESSEE shall
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not be required to pay any fees or commissions to SUBLESSOR in connection with
the performance of the Tenant Improvement work.
3.4. FINANCING OF LESSEE IMPROVEMENT WORK. Subject to the terms of a
financing commitment received from Neworld Bank, SUBLESSOR has agreed to finance
the tenant improvement work referenced in Paragraph 3.3 in an amount equal to
five hundred seventy six thousand, three hundred ($576,300.00) dollars
("Landlord's Contribution"). Any and all other costs and expenses over and above
$576,300.00 shall be the sole and exclusive responsibility of SUBLESSEE.
SUBLESSEE shall submit to SUBLESSOR's lender such reasonable documentation,
including financial statements, as the lender deems necessary to assure lender
of SUBLESSEE's ability to fund its portion of the buildout costs.
Disbursement of Landlord's Contribution shall be subject to such reasonable
conditions, including but not limited to processing time, inspections and
retainage, which may be imposed by SUBLESSOR's lender. SUBLESSOR shall
communicate said conditions to SUBLESSEE within seven (7) business days of
receipt of same. Payment of SUBLESSEE's contractors shall be on a pro rata
basis, that is proportional between SUBLESSOR and SUBLESSEE in the same
percentage that Landlord's Contribution bears to the total budget for tenant
improvements. In no event shall SUBLESSOR be responsible for contributing more
than $576,300 toward tenant improvements.
It is further understood and acknowledged that the Master LESSOR of the One
Xxxxxxx Square Complex has filed a so-called
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"prepackaged" bankruptcy petition. It is acknowledged that as a precondition to
disbursement by the Tenant Improvements Lender that the bankruptcy case be
completed or appropriate orders of the Bankruptcy Court be entered protecting
the status and priority of the Tenant Improvements Lender's security interest,
after the expiration of applicable appeal periods.
4. RENT. SUBLESSEE covenants and agrees to pay to SUBLESSOR annual base
rent ("Base Rent") in the amounts set forth or provided for below, by equal
payments of one-twelfth of such annual rate on the first day of each calendar
month in advance, the first monthly payment to be made on the Rent Commencement
Date, and by payment in advance of a pro-rata portion of a monthly payment for
any portion of a month at the beginning or end of the term; all payments to be
made without deduction, set off or counterclaim, and except as otherwise noted
in this SUBLEASE, without abatement; all payments to be made to SUBLESSOR or
such agent, and at such place, as SUBLESSOR shall from time to time in writing
designate, the following being now so designated:
MYOCRT, INC.
c/o THE ATHENREUM GROUP
000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
The annual Base Rent during the ten year term of the SUBLEASE shall be:
(a) During Year l: $281,249.50; calculated as $24.25 per rentable square
foot multiplied by 11,526 rentable square feet, plus $5.00 per rentable square
foot multiplied by 120 rentable
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square feet; plus $11.00 per rentable square foot multiplied by 104 rentable
square feet;
(b) During Year 2: $295,657; calculated as $25.50 per rentable square foot
multiplied by 11,526 rentable square feet, plus $5.00 per rentable square foot
multiplied by 120 rentable square feet; plus $11.00 per rentable square foot
multiplied by 104 rentable square feet;
(c) During Year 3: $310,064.50; calculated as $26.75 per rentable square
foot multiplied by 11,326 rentable square feet, plus $5.00 per rentable square
foot multiplied by 120 rentable square feet; plus $11.00 per rentable square
foot multiplied by 104 rentable square feet;
(d) During Year 4: $325,970.38; calculated as $28.13 per rentable square
foot multiplied by 11,526 rentable square feet, $5.00 per rentable square foot
multiplied by 120 rentable square feet; plus $11.00 per rentable square foot
multiplied by 104 rentable square feet;
(e) During Year 5: $337,496.38; calculated as $29.13 per rentable square
foot multiplied by 11,526 rentable square feet, plus $5.00 per rentable square
foot multiplied by 120 rentable square feet; plus $11.00 per rentable square
foot multiplied by 104 rentable square feet;
(f) During Years 6-10: At the annual rate of $174,634; calculated as $15.00
per rentable square foot multiplied by 11,526 rentable square feet, plus $5.00
per rentable square foot multiplied by 120 rentable square feet; plus $11.00 per
rentable square foot multiplied by 104 rentable square feet;
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PLUS
(i) During the first five years of the lease term, $105 per month for
each of the parking spaces taken by LESSEE hereunder.
(ii) During years 6 through 10 of the term, the annual fair rental
value of LESSEE's parking spaces, as reasonably determined by
LESSOR, but not more than the fair rental value of parking spaces
actually charged other tenants for use of the OKS Garage.
Notwithstanding the foregoing, during the period of time after the Lease
Commencement Date but before the Rent Commencement Date, LESSEE shall pay to
LESSOR $105 per month per parking space actually used by LESSEE during said time
period.
5. RENT ADJUSTMENTS.
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5.1 RENT ADJUSTMENT - COMMON AREA OPERATING EXPENSES FOR THE LOT.
Commencing as of the Rent Commencement Date and with respect to any calendar
year or any fraction of a calendar year thereafter falling within the term, the
SUBLESSEE shall pay to the SUBLESSOR as additional rent, the "LESSEE'S
Proportionate CAO Lot Expense Share" as defined in the Prime Lease.
Notwithstanding the foregoing, Sublessee's payments pursuant to this Section
shall not be increased on an annual basis by more than 125% of any annual
increase in the CPI over that same period. As set forth in the Prime Lease, the
total rentable area of the Leased Premises is 11,750 square feet and the total
rentable area of the Complex is 610,564 square feet or 1.92%.
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5.2. RENT ADJUSTMENT - COMMON AREA OPERATING EXPENSES FOR THE BUILDING.
Commencing as of the Rent Commencement Date and with respect to any calendar
year falling within the term, or fraction of a calendar year at the beginning or
end of the term, the SUBLESSEE shall pay to the SUBLESSOR, as additional rent,
the "LESSEE'S Proportionate Building Expense Share" as defined in the Prime
Lease. Notwithstanding the foregoing, Sublessee's payments pursuant to this
Section shall not be increased on an annual basis by more than 125% of any
annual increase in the CPI over that same period. As set forth in the Prime
Lease, the total rentable area of the Leased Premises is 11,750 square feet and
the total rentable area of the Building is 59,353 or 19.80%. Attached as Exhibit
G is a summary of expenses for the Building and Complex for the 1992 Calendar
Year.
5.3 MONTHLY PAYMENTS. Beginning as of the Rent Commencement Date, and in
subsequent years during the term of this SUBLEASE, the SUBLESSEE shall pay to
the SUBLESSOR pro rata monthly installments of amounts due under Paragraphs 5.1
and 5.2 of the Prime Lease. Appropriate adjustments of estimated amounts shall
be made between SUBLESSOR and SUBLESSEE promptly after the close of each
calendar year to account for actual CAO Lot Expenses and CAO Building Expenses
for such year. The balance of any amounts due from either party to the other
shall be paid within twenty (20) days after written notice thereof. SUBLESSEE
shall have the same rights as SUBLESSOR to audit and review the books and
records of LESSOR for calculation of CAO Lot and CAO Building Expenses as
SUBLESSOR has under the Prime Lease.
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5.4.2. LESSEE'S SHARE OF TAXES. The SUBLESSEE shall pay to the SUBLESSOR,
as additional rent, the SUBLESSEE'S Proportionate Building Expense Share of that
portion of the Taxes attributable to the Building and SUBLESSEE'S Proportionate
CAO Lot Expense Share of that portion of the Taxes attributable to the land
which constitutes the Lot all as set forth in the Prime Lease (inclusive of
interest on assessments payable in installments, but exclusive of any interest
or fines, penalties or other costs due solely by reason of the late payment of
any Real Estate Taxes, including assessments payable in installments). The
increase caps referred to in Paragraphs 5.1 and 5.2 shall not apply to the
calculation of Sublessee's share of taxes.
5.4.3. RENT ADJUSTMENT-PAYMENT. Beginning on the Rent Commencement Date and
in subsequent years during the term of this Sublease, SUBLESSEE shall pay to the
SUBLESSOR monthly installments of one-twelfth of the amounts due to LESSOR under
Paragraphs 5.4.1 and 5.4.2 of the Prime Lease. Appropriate adjustments of
estimated amounts shall be made between SUBLESSOR and SUBLESSEE promptly after
SUBLESSOR shall have received from LESSOR the actual tax xxxx covering any such
period.
5.4.4. TAX ADJUSTMENT. If the SUBLESSOR or any other party (excluding
SUBLESSEE) in the Building shall construct an addition to the Building, or
construct improvements within the Building of unusual value so as to result in
an increase in Taxes over the Taxes which would have been assessed to that
Building but for such construction, there shall not be included in Taxes
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for purposes of this SUBLEASE the amount of such increase in Taxes unless such
additions or improvements directly benefit the SUBLESSEE. If the SUBLESSEE, or
the SUBLESSOR at the direction of the SUBLESSEE, shall construct improvements
within the Leased Premises, or any part thereof, of unusual value so as to
result in an increase in Taxes over the Taxes which would have been assessed to
the Building, or part, but for such unusually valuable improvements, the
SUBLESSEE shall be responsible for the payment of the full amount of such
increase.
5.5 DEFINITION OF C.P.I. For the purpose of this SubLease, the "Consumer
Price Index" shall mean the Consumer Price Index for all Urban Consumers
(CPI-U)(Revised), Boston, Massachusetts Series A (1982-84=100) as published by
the United States Bureau of Labor Statistics; and the percentage increase
therein shall be calculated on the basis of the Consumer Price Index figure for
the reporting date next prior to each applicable January 1. It is the purpose
and intent of the parties that such adjustments be measured and determined by
reference to the Consumer Price Index in effect, and generally as it is
calculated, computed and constituted, on the Execution Date. Accordingly, if the
Bureau of Labor Statistics should cease to publish such index in its present
form and calculated on the present basis, a comparable index or an index
reflecting change in the cost of living determined in a similar manner shall be
chosen by agreement by the parties.
6. UTILITIES AND OTHER SERVICES.
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(a) The SUBLESSEE shall pay charges for all heat, air-conditioning,
electricity, water and sewer, and other utilities which are separately metered
or sub-metered to the Leased Premises. SUBLESSEE shall be responsible for all
utility company deposits applicable to the supply of such services to the Leased
Premises. SUBLESSEE shall also pay LESSEE's Proportionate Building Expense Share
as set forth in the Prime Lease, of all utilities not separately metered or
sub-metered to the Leased Premises but which serve the Leased Premises. Upon
request by the SUBLESSOR, the SUBLESSEE shall provide the SUBLESSOR with
evidence of payment of such charges. SUBLESSEE shall defend, indemnify and hold
SUBLESSOR harmless from and against any claim or liability arising for such
charges which SUBLESSEE is responsible for, but for which it fails to pay.
(b) Except where the interruption of services or utilities is caused
by the negligence or act of the SUBLESSOR, and such interruption continues for
more than five (5) consecutive business days or more than ten (10) business days
within any calendar month (whether or not consecutive), LESSOR shall not be
liable to LESSEE or SUBLESSEE for any compensation or reduction of rent by
reason of inconvenience or annoyance or for loss of business arising from the
necessity of SUBLESSOR or its agents entering the Leased Premises, to make
repairs in order to restore utilities, or for making repairs or renovations to
any portion of the Building in order to restore utilities. In case LESSOR is
prevented or delayed from making any such repairs or alterations, or supplying
the utilities or services provided for
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herein, or performing any other covenant or duty to be performed on behalf of
SUBLESSOR'S part, by reason of any cause beyond SUBLESSOR'S control, SUBLESSOR
shall not be liable to SUBLESSEE therefor, nor shall SUBLESSEE be entitled to
any abatement or reduction of rent by reason thereof, nor shall the same give
rise to a claim in SUBLESSEE's favor that such failure constitutes actual or
constructive, total or partial, eviction from the Leased Premises, or any
portion thereof. SUBLESSEE acknowledges that LESSOR has in the Prime Lease
reserved the right to stop any service or utility system, when necessary by
reason of accident or emergency, or until necessary repairs have been completed.
(c) To the extent SUBLESSOR or SUBLESSEE has installed separate meters
for any utilities including heat, electricity, water and sewer, and
air-conditioning to the Leased Premises, the SUBLESSEE shall pay its utility
charges directly to the suppliers of such utility services before the same
become delinquent. The SUBLESSEE shall have the right to audit said charges and
payments upon reasonable notice.
7. USE OF LEASED PREMISES. The SUBLESSEE may use the Leased Premises only
for the purpose of general office use, laboratories, research and development,
including in vitro and in vivo testing of pharmaceutical, and accessory uses
generally common to pharmaceutical research and development, including
production of pharmaceutical, but only on a pilot scale.
8. COMPLIANCE WITH LAWS. The SUBLESSEE acknowledges that no trade or
occupation shall be conducted in the Leased Premises or use made thereof which
shall be unlawful, improper, noisy or
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offensive, or be contrary to any law or any municipal by-law or ordinance in
force in the City of Cambridge. Except as otherwise provided herein, the
SUBLESSEE shall keep the Leased Premises equipped with all safety appliances and
shall procure and keep in force all licenses and permits required by law or
ordinance of any public authority because of the particular uses made of the
Leased Premises by SUBLESSEE and shall maintain in good condition on the Leased
Premises all safety and fire protection devices required by the Board of Fire
Underwriters, or other body having similar functions, and of every insurance
company and policy by which SUBLESSOR or SUBLESSEE is insured. If any use of the
Leased Premises results in the cancellation of any insurances carried by
SUBLESSOR, or increases the cost thereof, the SUBLESSEE shall on demand
reimburse the SUBLESSOR all extra insurance premiums incurred as a result of
such use of the Leased Premises by the SUBLESSEE.
9. RISK OF LOSS OF PERSONAL EFFECTS. SUBLESSEE acknowledges and agrees that
all of the furnishings, equipment effects and property of SUBLESSEE and of all
persons claiming by, through or under SUBLESSEE which may be on the Leased
Premises or elsewhere in any building in the Complex, shall be at the sole risk
and hazard of SUBLESSEE and if the whole or any part thereof shall be destroyed
or damaged by fire, water or otherwise, or by the leakage or bursting of water
pipes, steam pipes, or other pipes, by theft or from any other cause, no part of
said loss or damage is to be charged to or to be borne by SUBLESSOR, except that
SUBLESSOR shall in no event be indemnified or held harmless
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or exonerated from any liability to SUBLESSEE or to any other person, arising
from any injury, loss, damage or liability caused by SUBLESSOR'S gross
negligence.
9A. INSURANCE - WAIVER OF SUBROGATION. SUBLESSOR as an additional insured
under the LESSOR'S insurance policy agrees to keep the Building and the Tenant
Improvements and SUBLESSEE agrees to keep any replacement or additional
improvements made by the SUBLESSEE to the Leased Premises, (other than the
Tenant Improvements) and all equipment, machinery and fixtures therein insured
in amounts equal to the actual cash value without deduction for depreciation
(i.e. full replacement cost) of the same, against fire and other perils included
in a standard extended coverage endorsement, and against breakdown of boilers
and other machinery and equipment (hereinafter "Property Insurance"), and
SUBLESSEE agrees to procure and keep in force comprehensive general liability
insurance indemnifying SUBLESSEE against all claims and damages for any injury
to or death of person or damage to property which may be claimed to have
occurred upon or to have been caused by activities or conditions within the
Leased Premises and indemnifying SUBLESSOR to the extent any such claims and
demands are the responsibility or obligation of SUBLESSEE pursuant to this
SUBLEASE or as a matter of law, in amounts not less than $500,000 for property
damage, $500,000 for injury or death of one person, and $1,000,000 for injury or
death of more than one person in a single accident.
SUBLESSOR, as an additional insured under the LESSOR's insurance policy
agrees to procure and keep in force
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comprehensive general liability insurance for personal injury liability
(including without limitation, bodily injury, sickness, disease and death)
arising out of an occurrence in the common areas of the Lot and Building.
All insurance required hereunder shall be written by insurance carriers
qualified to do business and in good standing in Massachusetts and approved by
SUBLESSOR, which approval shall not be unreasonably withheld. The SUBLESSEE'S
policy of liability insurance shall name SUBLESSOR and SUBLESSEE as the insured
parties, and the insurance carried by the SUBLESSOR on the Tenant Improvements
("Tenant Improvements Insurance") shall name the Tenant Improvements Lender and
SUBLESSEE as additional insureds. Each required policy of insurance shall
provide that, notwithstanding any act or omission of SUBLESSEE which might
otherwise result in forfeiture of said insurance; (A) it shall not be cancelled
nor its coverage reduced without at least ten (10) days prior written notice to
each insured named therein, and (B) with respect to the Tenants Improvements
Insurance, any proceeds shall first be payable to the Tenants Improvement Lender
and then to the SUBLESSOR and SUBLESSEE as their respective interests may
appear, as set forth below.
As of the commencement of the term hereof, and thereafter not less than
fifteen (15) days prior to the expiration dates of the expiring policies, the
original policies to be obtained by SUBLESSEE hereto issued by the respective
insurers or certificates thereof. Upon reasonable request, SUBLESSEE shall
provide SUBLESSOR photocopies of the original policies.
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Any insurance carried by either party with respect to the Leased Premises
or property therein or occurrences thereon shall include a clause or endorsement
denying to the insurer rights of subrogation against the other party to the
extent rights have been waived by the insured prior to occurrence of injury or
loss. Each party, notwithstanding any provisions of this SUBLEASE to the
contrary, hereby waives any rights of recovery against the other for injury or
loss due to hazards covered by such insurance.
Notwithstanding anything herein contained to the contrary SUBLESSOR'S cost
of obtaining Tenant Improvements Insurance during the initial term of the
SUBLEASE (excluding any extension periods) shall be borne by the SUBLESSEE. In
the event of a casualty to the Tenant Improvements, unless LESSOR does not
receive necessary insurance proceeds to restore that portion of the Building
necessary to be restored prior to the reconstruction of the Tenant Improvements,
LESSOR shall use the Tenant Improvement Insurance proceeds to restore the Tenant
Improvements to substantially the same condition as existed prior to the
casualty. In the event that the LESSOR does not receive insurance proceeds
necessary to restore that portion of the Building which is a necessary
prerequisite to restore the Tenant Improvements, any proceeds of the Tenants
Improvement Insurance shall first be payable to the Tenant Improvements Lender
and the balance shall be distributed to the SUBLESSOR and the SUBLESSEE as set
forth herein. The interest of the SUBLESSOR and SUBLESSEE shall be based on the
assumption that the SUBLESSEE'S insurable
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interest in the Tenant Improvements was 100% as of the date on which the Tenant
Improvements were substantially completed and diminished on a straight line
basis to 0% as of the date which is ten (10) years after the Rent Commencement
Date. SUBLESSOR shall upon request, deliver to SUBLESSEE a certificate of
insurance evidencing such Tenant Improvement Insurance, including any
replacement or renewal certificates and evidence of payment. SUBLESSEE shall be
named as an additional insured of such policy.
10. MAINTENANCE OF LEASED PREMISES. The SUBLESSEE agrees to maintain the
interior of the Leased Premises in the same condition as they are at the
commencement of the term or as they may be put in during the term of this
SUBLEASE, reasonable wear and tear, damage by fire, other casualty and eminent
domain, and matters for which the SUBLESSOR is responsible hereunder only
excepted, to provide its own interior janitorial service, to install and
maintain its own security system as it considers appropriate and, whenever
necessary, to replace plate glass and other glass therein with that of the same
quality as that damaged or injured, except as otherwise provided in the Prime
Lease. SUBLESSEE shall maintain and pay for the HVAC System solely servicing the
Leased Premises, and SUBLESSEE shall be responsible for all repairs and
replacements to said system, insurance casualty only excepted. The SUBLESSEE
shall not permit the Leased Premises to be overloaded, damaged, stripped, or
defaced, nor suffer any waste. SUBLESSEE shall obtain written consent of
SUBLESSOR before erecting any sign on or about the Leased Premises, which
consent shall not be unreasonably withheld or
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delayed. SUBLESSEE further covenants and agrees: to take all reasonably
necessary actions to insure that smoke, fumes, vapors and odors will not
permeate the Building and will be removed only through the exhaust and
ventilating system servicing the Leased Premises; to keep the Leased Premises
free of pests, roaches and vermin; to keep all trash, garbage and debris stored
on the Leased Premises (and not in any other portions of the Lot or the
Building) in adequate covered containers, approved by SUBLESSOR and placed in
locations or areas approved by SUBLESSOR in writing and to arrange for the
regular removal thereof once each day; to provide for the frequent and adequate
cleaning of the Leased Premises and all walls, floors, fixtures and equipment
therein consistent with its use.
11. ALTERATIONS - ADDITIONS. (a) Other than the Tenant Improvements, the
construction of which shall be governed by Paragraph 3.3, the SUBLESSEE shall
not make structural alterations or additions to the Leased Premises, but may
make non-structural alterations and improvements costing less than fifty
thousand ($50,000.00) dollars in the aggregate which does not in any way affect
the Building systems and for which it has provided SUBLESSOR with plans and
specifications for such work at least five (5) days prior to commencement of
such alterations. SUBLESSEE may make non-structural improvements costing more
than fifty thousand ($50,000.00) dollars in the aggregate which does not affect
Building systems, provided the SUBLESSOR consents thereto in advance in writing
in each instance, which consent shall not be unreasonably withheld or delayed so
long as
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SUBLESSOR is furnished with detailed plans and specifications to be reasonably
approved by SUBLESSOR. Failure to disapprove any such plans within fifteen (15)
business days of receipt of such plans shall be deemed approval. All such
allowed alterations or additions shall be at SUBLESSEE'S sole cost and expense
and shall be in quality at least equal to the Tenant Improvement construction
referred to in Paragraph 3.3.
(b) SUBLESSEE shall not permit any mechanics' liens, or similar liens, to
remain upon the Leased Premises for labor and materials furnished to SUBLESSEE
or claimed to have been furnished to SUBLESSEE in connection with the work of
any character performed or claimed to have been performed at the direction of
SUBLESSEE, and shall cause any such lien to be released of record or
sufficiently bonded forthwith without cost to SUBLESSOR. Any alterations,
additions or improvements made by the SUBLESSEE, pursuant to this Paragraph 11,
except for equipment, moveable partitions and furnishings identified in writing
as such at the time SUBLESSEE seeks consent from SUBLESSOR to perform such
non-structural alterations, leased or installed at the SUBLESSEE'S cost, shall
become the property of the SUBLESSOR at the termination of the SUBLEASE as
provided herein.
(c) Anything herein or in the Prime Lease to the contrary notwithstanding,
all business and trade fixtures, machinery and equipment (including, without
limitation, scientific and business equipment and installations); communications
and office equipment, whether or not attached to or built into the Premises;
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and all furniture, furnishing and other movable articles of personal property
owned by SUBLESSEE and located in the Premises (all of which are herein referred
to as "Sublessee's Property") shall remain the property of SUBLESSEE and may be
removed by SUBLESSEE or any person claiming under SUBLESSEE at any time or times
during the Lease Term, and may be removed by SUBLESSEE at the expiration or
earlier termination of the Lease Term. Upon any removal by SUBLESSEE of
SUBLESSEE's Property, SUBLESSEE shall repair or pay the cost of repairing any
damage to the Premises or the Building occasioned by such removal and shall
restore or pay the cost of restoring the Leased Premises to the condition which
existed after the completion of the Tenant's improvements or any approved
alteration or addition, as the case may be.
With respect to all such SUBLESSEE work, SUBLESSEE further agrees as
follows: that such work shall commence only after all required municipal and
other governmental permits and authorizations have been obtained (the SUBLESSOR
agreeing to join in any application therefor at the SUBLESSEE'S expense,
whenever necessary) and all such work shall be done in a good and workmanlike
manner in compliance with building and zoning laws and with all other laws,
ordinances, regulations and requirements of all federal, state and municipal
agencies, and in accordance with the requirements and policies issued by any
insurer of SUBLESSOR or SUBLESSEE; that all such work shall be prosecuted with
reasonable dispatch to completion; that at all times when any such work is in
progress, SUBLESSEE shall maintain or cause to be maintained adequate workmen's
compensation insurance for
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those employed in connection therewith with respect to whom death or injury
claims could be asserted against SUBLESSOR, the SUBLESSEE or the Leased Premises
and comprehensive general liability or builder's risk insurance (for mutual
benefit of SUBLESSEE and SUBLESSOR, in coverages reasonably approved by
SUBLESSOR; and that all such work of SUBLESSEE shall be coordinated with any
work being performed in the Building in such manner as to maintain harmonious
labor relations and not to interfere with the operation of the Building or the
Complex or the construction work of others.
12. ASSIGNMENT - SUBLETTING. The SUBLESSEE may assign or sublet the whole
or any part of the Leased Premises, upon obtaining SUBLESSOR'S prior written
consent, which consent shall not be unreasonably withheld or delayed. Failure to
disapprove within ten (10) business days, shall be deemed to be approval.
Notwithstanding any such consent, SUBLESSEE shall remain liable to SUBLESSOR for
the payment of all rent and for the full performance of the covenants and
conditions of this SUBLEASE (which following assignment and/or subletting, as
the case may be, shall be joint and several with any assignee or sub-lessee). In
addition, SUBLESSEE shall pay to LESSOR as additional rent hereunder, one half
of any profit earned by SUBLESSEE as a result of any such sublet or assignment.
For purposes of this clause, profit shall be defined as the rent in excess of
SUBLESSEE'S obligations to SUBLESSOR, less all reasonable costs associated with
the sublet or assignment. This section shall not apply to (a) a bona fide
reorganization of Sublessee into a successor
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corporation or other entity in connection with the reasonable and valid business
purpose of Sublessee and not intended to avoid the restrictions or payment
obligations set forth in this Paragraph 12, or (b) any assignment, subletting or
other transfer to an affiliate of Sublessee and not intended to avoid the
restrictions or payment obligations set forth in this Paragraph 12.
12A. QUIET ENJOYMENT, COVENANT OF TITLE. The SUBLESSEE, on paying the rent
and other charges hereunder, as and when the same shall become due and payable
and observing and performing the covenants, conditions and agreements contained
in this SUBLEASE on the part of the SUBLESSEE to be observed and performed, all
as herein provided shall and may lawfully, peaceably and quietly have, hold and
enjoy the Leased Premises during the term, subject to all of the terms and
provisions hereof, without hindrance, ejection or disturbance by the SUBLESSOR
or by any person or persons claiming by, through or under the SUBLESSOR or by
anyone claiming paramount title. After the completion of the Tenant
Improvements, SUBLESSOR shall maintain throughout the Lease Term a Certificate
of Occupancy for the Building permitting the Premises to be occupied.
13. SUBORDINATION. The SUBLEASE and SUBLESSEE'S interest hereunder shall be
subordinate to the lien of any present, or provided LESSOR's and SUBLESSOR'S
respective mortgagees provide SUBLESSEE with a non-disturbance agreement as
hereinafter described, future mortgage or mortgages upon the Leased Premises or
any property of which the Leased Premises are a part, irrespective of the time
of execution or the time of recording of
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any such mortgage or mortgages, and to each advance made or to be made
thereunder and to all renewals, modifications, consolidations, and extensions
thereof, and all substitutions therefor. Provided SUBLESSEE receives a
non-disturbance agreement from LESSOR's and SUBLESSOR'S mortgagees as
hereinafter described, the SUBLESSEE shall and does hereby agree, upon default
by the LESSOR or SUBLESSOR under any such mortgage, as the case may be, to
attorn to and recognize the holder of any such mortgage or anyone else claiming
thereunder, including a purchaser at a foreclosure sale, at its request as
successor to the interest of the SUBLESSOR under this SUBLEASE, to execute,
acknowledge and deliver in recordable form such evidence of this attornment as
such holder or such successor may reasonably request and make payments of Base
Rent and other payments required hereunder directly to such holder or any such
successor, as the case may be, upon request. As used in this Paragraph 13, the
word "holder" includes any person claiming through or under any such mortgage,
including any purchaser at a foreclosure sale, and the word "SUBLESSEE" shall
include SUBLESSEE'S successors and assigns. The word "mortgage" as used in this
Paragraph shall mean mortgages, deeds of trust, and other similar instruments
held by any institutional lender and all modifications, extensions, renewals and
replacements thereof. This Paragraph 13 is self-operative as it relates to the
present mortgagee, and no further instrument of subordination shall be required.
The SUBLESSEE agrees to execute such further documents in recordable form
as the LESSOR and SUBLESSOR or any lender may
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reasonably require, consistent with the terms of this Paragraph 13 and 21
provided that SUBLESSEE receives from LESSOR and SUBLESSOR'S respective
mortgagees a non-disturbance agreement under which the mortgagee agrees that so
long as SUBLESSEE is not in default hereunder, beyond the expiration of
applicable cure periods, the SUBLESSEE'S possession of the Leased Premises shall
not be disturbed in event of a foreclosure sale or otherwise. Should the
SUBLESSEE fail to execute and deliver to the SUBLESSOR any such document within
ten (10) days of a written notice requesting the SUBLESSEE to execute and
deliver such document, SUBLESSEE shall pay to SUBLESSOR (as liquidated damages
and not as a penalty) the sum of $500.00 per day for each day after such tenth
(10th) day during which such failure to deliver such instrument continues.
14. SUBLESSOR'S ACCESS. The SUBLESSOR or agents of the SUBLESSOR may, at
reasonable times and upon reasonable prior notice to the SUBLESSEE, enter to
view the Leased Premises, or any part thereof and may remove placards and signs
not approved and affixed as herein provided; and, at SUBLESSEE'S expense, to
remove any alterations, additions, signs, or other improvements made by
SUBLESSEE, and not consented to by SUBLESSOR; to show the Leased Premises to
others, with reasonable prior notice, in a manner so as not to unreasonably
interfere with the normal conduct of the SUBLESSEE'S business, at any time,
during normal business hours, within the four (4) month period prior to the
expiration of the term; to affix to any suitable part of the Building a notice
for letting or selling the Leased Premises or
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property of which the Leased Premises are a part and keep the same so affixed
without hindrance or molestation.
15. INDEMNIFICATION AND LIABILITY. The SUBLESSEE shall defend, save
harmless and indemnify SUBLESSOR from any claims of liability for injury, loss,
accident or damage to any person or property while on the Leased Premises, if
not due to the negligence of SUBLESSOR, or SUBLESSOR'S employees or agents, and
to any person or property anywhere occasioned by any omission, fault, negligence
or other misconduct of SUBLESSEE and persons for whose conduct SUBLESSEE is
legally responsible.
16. HOLDING OVER. SUBLESSEE agrees to pay to SUBLESSOR one and one-half
times the total of the Base Rent set forth in Paragraph 4 in effect for the
period immediately prior to SUBLESSEE'S holding over and one and one-half times
the additional rent provided for under this SUBLEASE then applicable for each
month or portion thereof SUBLESSEE shall retain possession of the Leased
Premises or any part thereof after the termination of this SUBLEASE, whether by
lapse of time or otherwise, and also to pay all damages for breach of this
SUBLEASE sustained by SUBLESSOR as a result of SUBLESSEE'S holdover, including,
but not limited to all reasonable costs and attorneys fees incurred in evicting
SUBLESSEE or recovering possession of the Premises from SUBLESSEE, costs to
prepare the premises to be re-let, (but not including the costs of removing the
Tenant Improvements), and provided SUBLESSOR has given SUBLESSEE thirty days
written notice of the existence of a lease agreement with another tenant and
SUBLESSEE has failed to vacate
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the Leased Premises within such thirty day period (or such longer time as
provided in said notice), loss of rental income from said other tenant; the
provisions of this paragraph shall not operate as a waiver by SUBLESSOR of any
right of re-entry provided in this SUBLEASE.
16A. FURTHER LESSEE COVENANTS. SUBLESSEE further covenants and agrees
during the term and such further time as SUBLESSEE holds any part of the Leased
Premises:
(a) to pay when due all rent and other sums herein specified, without
offset, deduction set off or counterclaim and, except as otherwise noted in the
SUBLEASE, without abatement;
(b) not to obstruct in any manner any portion of any building not hereby
leased or the sidewalks or approaches to such building or any inside windows or
doors;
(c) that neither the original SUBLESSOR nor any successor SUBLESSOR who or
which is a trustee or a partnership, nor any beneficiary of the original
SUBLESSOR or any successor SUBLESSOR nor any partner, general or limited, of
such partnership shall be personally liable under any term, condition, covenant,
obligation or agreement expressed herein or implied hereunder or for any claim
or damage or cause at law or in equity arising out of the occupancy of the
Leased Premises or the use or maintenance of the Building and SUBLESSEE
specifically agrees to look solely to the SUBLESSOR'S interest in the Complex
for the recovery of any judgment against SUBLESSOR; and
(d) if any payment of rent or other sums due hereunder is not paid when
due, beyond any applicable grace period as set
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forth in the last sentence of Xxxxxxxxx 00, XXXXXXXXX shall pay to SUBLESSOR a
late charge equal to five (5%) percent of the unpaid amount per month, or part
thereof, that such amount remains unpaid.
17. FIRE, CASUALTY.
17.1 CASUALTY DAMAGE TO THE BUILDING. If during the Sublease Term there
shall be damage to the Building by fire or other casualty and if such damage
shall materially interfere with the SUBLESSEE'S use of the Building or the
Leased Premises as contemplated by this SUBLEASE, the SUBLESSOR shall, unless
LESSOR'S mortgagee does not make the Building insurance proceeds available to
SUBLESSOR for reconstruction, promptly proceed to restore the Building and the
Leased Premises, including the Tenant Improvements, to substantially the
condition in which they were immediately prior to the occurrence of such damage.
Notwithstanding the foregoing, if there shall be damage to the Building, and if
such damage shall materially interfere with SUBLESSEE'S use of the Leased
Premises as contemplated by this SUBLEASE occurring during the last twelve (12)
months of the SUBLEASE Term (and SUBLESSEE has not exercised any applicable
option to extend pursuant to Paragraph 24 hereof or fails to so exercise within
ten (10) days after the casualty) of such a character that the same cannot, in
ordinary course, be expected to be repaired within thirty (30) days from the
time such repair work would begin, the SUBLESSOR may, within ten (10) days of
the date of such damage, elect to terminate this SUBLEASE. If such
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election is not made, the SUBLESSOR shall promptly proceed with such
restoration.
17.2. TERMINATION AFTER CASUALTY. (a) if the LESSOR'S mortgagee does not
make insurance proceeds available for reconstruction of the Building and the
Leased Premises, the SUBLESSOR may terminate this SUBLEASE by notice to the
SUBLESSEE within thirty (30) days after the date of the casualty. (b) if the
Tenant Improvement's Lender does not make insurance proceeds available for
reconstruction of the Tenant Improvements, the SUBLESSEE may terminate this
SUBLEASE by notice to the SUBLESSOR within thirty (30) days after the date of
casualty. (c) if the SUBLESSOR is required to restore the Leased Premises and
the Building and the Tenant Improvements and if such damage shall not have been
repaired to the extent necessary for the SUBLESSEE to resume its normal business
operations at the Leased Premises by the end of the 18th day following the date
of such fire or casualty, then the SUBLESSEE may, at any time thereafter while
the damage remains unrepaired, terminate this SUBLEASE upon notice to the
SUBLESSOR, provided however that said notice to terminate shall not become
effective in the event that SUBLESSOR has commenced to restore or repair the
Tenant Improvements and SUBLESSOR substantially completes said repair or
restoration within sixty (60) days after receipt of SUBLESSEE'S notice of
intention to terminate. If the SUBLESSOR or the SUBLESSEE shall give any notice
of termination as provided in this Article 17, then this SUBLEASE shall
terminate as on the date which is sixty (60) days after the date of such notice
with the same force and
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effect as if such date were the date originally established as the expiration
date hereof.
17.3. ABATEMENT OF RENT. If during the SUBLEASE Term the Building shall be
damaged by fire or casualty and if such damage shall materially interfere with
the SUBLESSEE'S use of the Building or the Leased Premises as contemplated by
this SUBLEASE, a just and proportionate amount of the rent and other charges
(base rent, financing rent and additional rent) payable by the SUBLESSEE
hereunder shall xxxxx proportionately for the period in which, by reason of such
damage, there is such interference with the SUBLESSEE'S use of the Leased
Premises.
17A. EMINENT DOMAIN. If the Building is totally taken by condemnation or
right of eminent domain, this SUBLEASE shall terminate as of the date of such
taking. If the Building, or such portion thereof as to render the balance (if
reconstructed to the maximum extent practicable in the circumstances) physically
unsuitable in the SUBLESSEE'S reasonable judgment for the SUBLESSEE'S purposes,
shall be taken by condemnation or right of eminent domain (including a temporary
taking in excess of 180 days), the SUBLESSEE or the SUBLESSOR shall have the
right to terminate this SUBLEASE by notice to the other of its desire to do so,
provided that such notice is given not later than thirty (30) days after the
SUBLESSEE has been deprived of possession.
Should any part of the Building be so taken or condemned or receive such
damage and should this SUBLEASE not be terminated in accordance with the
foregoing provisions, the SUBLESSOR shall, to the extent condemnation proceeds
are available to SUBLESSOR,
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promptly restore the Leased Premises (and the Tenant Improvements) to an
architectural unit that is suitable to the uses of the SUBLESSEE permitted
hereunder. In the event that the amount of such proceeds, if any, made available
by SUBLESSOR for reconstruction of the Tenant Improvements is not sufficient in
SUBLESSEE'S reasonable judgment to restore the Leased Premises to a suitable
whole, SUBLESSEE shall have the right to terminate this SUBLEASE within thirty
(30) days after SUBLESSOR has notified SUBLESSEE of the amount of proceeds
available for reconstruction of the Tenant Improvements.
In the event of a taking described in this Paragraph 17A, the rent and
other charges (base rent, financing rent and additional rent) 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.
The SUBLESSOR reserves, and the SUBLESSEE grants to the SUBLESSOR, all
rights which the SUBLESSEE may have for damages or injury to the Leased Premises
for any taking by eminent domain, except for damage to the SUBLESSEE'S trade
fixtures, personal property or equipment, if any, the SUBLESSEE'S right to
relocation expenses, if any, and the SUBLESSEE'S right for business
interruption, if any.
18. DEFAULT OF TENANT. In the event that:
-----------------
(a) The SUBLESSEE shall default in the payment of any installment of rent
or other sum herein specified; or
(b) The SUBLESSEE shall default in the observance or performance of the
SUBLESSEE'S covenants, agreements, or
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39
obligations hereunder (except as provided in Paragraph 18(a) above) and the
SUBLESSEE shall not cure such default within thirty (30) days after written
notice thereof or if such default cannot be cured within thirty (30) days, then
if SUBLESSEE shall not commence to cure the same within thirty (30) days and
diligently pursue the curing of the same; or
(c) If SUBLESSEE makes any assignment for the benefit of creditors, commits
any act of bankruptcy or files a petition under any bankruptcy or insolvency
law; or if such a petition is filed against SUBLESSEE and is not dismissed
within ninety (90) days; or if a receiver or similar officer becomes entitled to
SUBLESSEE'S leasehold hereunder and it is not returned to SUBLESSEE within
ninety (90) days, or if such leasehold is taken on execution or other process of
law in any action against SUBLESSEE; then in any such case the SUBLESSOR shall
have the right thereafter, while such default continues, to re-enter and take
complete possession of the Leased Premises, to declare the term of this SUBLEASE
ended, and remove the SUBLESSEE'S effects at SUBLESSEE'S sole cost and expense,
without prejudice to any remedies which might be otherwise used for arrears of
rent or other default. The SUBLESSEE shall indemnify the SUBLESSOR against all
reasonable costs of collection (including attorneys' fees), reasonable costs to
prepare the premises to be re-let (but not including the cost of removing the
Tenant Improvements), reasonable costs to re-let the premises, loss of rental
income that would otherwise have been paid by SUBLESSEE, and reasonable payment
of such other damages for breach of this SUBLEASE which
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the SUBLESSOR may incur by reason of such early termination of the SUBLEASE, but
only during the residue of the term. In the event of default, SUBLESSOR shall
use its reasonable efforts to re-let the Leased Premises so as to mitigate any
damages to the SUBLESSEE hereunder. If SUBLESSOR re-lets the Leased Premises,
SUBLESSEE may off-set its payable rent by the amount of rent received by
SUBLESSOR.
If the SUBLESSEE shall default, after written notice thereof as provided
herein, in the observance or performance of any conditions or covenants on its
part to be observed or performed under or by virtue of any of the provisions of
this SUBLEASE and after the expiration of any period within which the SUBLESSEE
is entitled to cure such default as is provided above in this Paragraph l8, the
SUBLESSOR, without being under any obligation to do so and without thereby
waiving such default, may remedy such default for the account and at the expense
of the SUBLESSEE. In the event either party makes any expenditures or incurs any
obligations for the payment of money in connection therewith, including, but not
limited to, reasonable attorney's fees (except for unsuccessful suits against
the other) in instituting, prosecuting or defending any action or proceeding
under this SUBLEASE, such sums paid or obligations incurred, with interest at
the rate of twelve (12%) percent per annum and costs, shall be paid to the
prevailing party by the non-prevailing party.
Nothing contained in this SUBLEASE shall limit or prejudice the right of
SUBLESSOR to claim and obtain in proceedings for bankruptcy, insolvency or like
proceedings by reason of the
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termination of this SUBLEASE, an amount equal to the maximum allowed by any
statute or rule of law in effect at the time when, and governing the proceedings
in which the damages are to be claimed or proved, whether or not the amount be
greater, equal to, or less than the amount of the loss or damages referred to
above. Notwithstanding the foregoing, SUBLESSEE shall be and is hereby granted
two ten day grace periods per calendar year in which to cure what would
otherwise constitute monetary defaults under this SUBLEASE.
18A. DEFAULT OF LANDLORD AND MORTGAGEE RIGHTS. SUBLESSOR shall in no event
be in default in the performance of any of SUBLESSOR'S obligations hereunder
unless and until SUBLESSOR shall have failed to perform such obligations within
thirty (30) days, or, provided that SUBLESSOR shall have promptly commenced to
perform the specified obligation after receipt of notice, such additional time
as is reasonably required to correct any such default, after receipt of written
notice by SUBLESSEE to SUBLESSOR properly specifying wherein SUBLESSOR has
failed to perform any such obligation. SUBLESSEE agrees to give any mortgagee,
by registered mail, a copy of any notice of default served upon the SUBLESSOR,
provided that prior to such notice the SUBLESSEE has been notified in writing
(by way of Notice of Assignment of Rents and Leases, or otherwise) of the
address of such mortgagee. The SUBLESSEE further agrees that if the SUBLESSOR
shall have failed to cure such default within the time provided for in this
SUBLEASE, then the mortgagee shall have an additional sixty (60) days within
which to cure such default or
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if such default cannot be cured within that time, then such additional time as
may be necessary if within sixty (60) days the mortgagee has commenced and is
diligently pursuing the remedies necessary to cure such default (including but
not limited to commencement of foreclosure proceedings, if necessary to effect
such cure) in which event this SUBLEASE shall not be terminated while such
remedies are being so diligently pursued.
18B. BANKRUPTCY OR INSOLVENCY:
------------------------
(a) SUBLESSEE'S INTEREST NOT TRANSFERABLE. Neither SUBLESSEE'S interest in
this SUBLEASE nor any estate hereby created in SUBLESSEE nor any interest herein
or therein shall pass to any trustee, except as may specifically be provided
pursuant to the Bankruptcy Code (11 USC Sec. 101 et seq.) or to any receiver or
assignee for the benefit of creditors or otherwise by operation of law.
(b) TERMINATION OF SUBLEASE. Notwithstanding anything to the contrary
contained in this SUBLEASE, in the event the interest or estate created in
SUBLESSEE hereby shall be taken in execution or by other process of law or if
SUBLESSEE or SUBLESSEE'S executors, administrators or assigns, if any, shall be
adjudicated insolvent or bankrupt pursuant to the provisions of any state law or
an order for the relief of such entity shall be entered pursuant to the
Bankruptcy Code, or if a receiver or trustee of the property of SUBLESSEE' shall
be appointed by reason of the insolvency or inability of SUBLESSEE to pay its
debts or if any assignment shall be made of the property of SUBLESSEE for the
benefit of creditors, then and in any such
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43
events this SUBLEASE and all rights hereunder shall automatically cease and
terminate with the same force and effect as though the date of such event were
the date originally established herein and fixed for the expiration of the term
and SUBLESSEE shall vacate and surrender the Leased Premises but shall remain
liable as herein provided.
(c) SUBLESSEE'S OBLIGATION TO AVOID CREDITORS' PROCEEDINGS. SUBLESSEE shall
not cause or give cause for the appointment of a trustee or receiver of the
assets of SUBLESSEE and shall not make any assignment for the benefit of
creditors or become or be adjudicated insolvent. The allowance of any petition
under any insolvency law, except under the Bankruptcy Code or the appointment of
a trustee or receiver of SUBLESSEE shall be conclusive evidence that SUBLESSEE
caused or gave cause therefor, unless such allowance of the petition or the
appointment of a trustee or receiver is vacated within ninety (90) days after
such allowance or appointment. Any act described in this paragraph shall be
deemed a material breach of SUBLESSEE'S obligations hereunder and this SUBLEASE
shall thereupon automatically terminate. SUBLESSEE does, in addition, reserve
any all other remedies provided in this SUBLEASE or in law.
(d) RIGHTS AND OBLIGATIONS UNDER THE BANKRUPTCY CODE. Upon the filing of a
petition by or against SUBLESSEE under the Bankruptcy Code, SUBLESSEE, as debtor
and as debtor-in-possession, and any trustee who may be appointed agree as
follows: (i) to perform each and every obligation of SUBLESSEE
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44
under this SUBLEASE including but not limited to, the manner of operation of
this SUBLEASE, until such time as this SUBLEASE is either rejected or assumed by
order of the United States Bankruptcy Court; (ii) to pay monthly, in advance, on
the first day of each month, as reasonable compensation for use and occupancy of
the Leased Premises, an amount equal to all fixed Annual Base Rent, Additional
Rent and other charges otherwise due pursuant to this SUBLEASE; (iii) to reject
or assume this SUBLEASE within sixty (60) days of the appointment of such
trustee under Chapter 7 of the Bankruptcy Code or within one hundred twenty
(120) days (or such shorter term as SUBLESSOR, in its sole discretion, may deem
reasonable, so long as notice of such period is given) of the filing of a
petition under any other chapter; (iv) to give SUBLESSOR at least forty five
(45) days prior written notice of any proceeding relating to any assumption of
this SUBLEASE; (v) to give at least thirty (30) days prior written notice of any
abandonment of the Leased Premises, with any such abandonment to be deemed a
rejection of this SUBLEASE and an abandonment of any property not previously
removed from the Leased Premises; (vi) to do all other things of benefit to
SUBLESSOR otherwise required under the Bankruptcy Code; (vii) to be deemed to
have rejected this SUBLEASE in the event of the failure to comply with any of
the above; (viii) to have consented to the entry of an order by an appropriate
United States Bankruptcy Court providing all of the above, waiving notice and
hearing of the entry of same.
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No default of this SUBLEASE by SUBLESSEE, either prior to or subsequent to
the filing of such a petition, shall be deemed to have been waived unless
expressly done so in writing by SUBLESSOR.
Included within and in addition to any other conditions or obligations
imposed upon SUBLESSEE or its successor in the event of assumption and/or
assignment are the following: (i) the cure of any monetary defaults and the
reimbursement of pecuniary loss immediately upon entry of a court order
providing for assumption and/or assignment; (ii) the deposit of an additional
sum equal to three (3) months Rent to be held as a security deposit; (iii) the
use of the Leased Premises as set forth in the reference date section of this
SUBLEASE and the quality, quantity and/or lines of merchandise of any goods or
services required to be offered for sale are unchanged; (iv) the payment of any
sums which may then be due or which may thereafter become due under the
provisions of this SUBLEASE; (v) the debtor, debtor-in-possession, trustee or
assignee of such entity demonstrates in writing that it has sufficient
background, including, but not limited to, substantial commercial experience in
buildings of comparable size and financial ability to operate a commercial
establishment out of the Leased Premises in the manner contemplated in this
SUBLEASE, and meets all other reasonable criteria of SUBLESSOR as did SUBLESSEE
upon execution of this SUBLEASE; (vi) the prior written consent of any mortgagee
to which this SUBLEASE has been assigned as collateral security; and (vii) the
Leased Premises at all times remains a single store (if
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retail) and no physical changes of any kind may be made to the Leased Premises
unless in compliance with the applicable provisions of this SUBLEASE.
Any person or entity to which this SUBLEASE is assigned pursuant to the
provisions of the Bankruptcy Code shall be deemed further act or deed to have
assumed all of the obligations arising under this SUBLEASE on and after the date
of such assignment. Any such assignee shall, upon demand, execute and deliver to
SUBLESSOR an instrument confirming such assumption in accordance with the terms
of paragraph 21 hereof.
19A. PARAGRAPH HEADINGS. The paragraph headings throughout this instrument
are for convenience and reference only, and the words contained therein shall in
no way be held to explain, modify, amplify or aid in the interpretation,
construction or meaning of the provisions of this SUBLEASE.
20. BROKER. The SUBLESSOR and SUBLESSEE each represent and warrant to the
other that each has had no dealings with any Brokers concerning this SUBLEASE,
except XXXXXX X. XXXXX AND COMPANY and Xxxxxxxx & Grew and each party agrees to
indemnify and hold the other harmless for any damages occasioned to the other by
reason of a breach of this representation and warranty. The SUBLESSOR shall be
responsible for the payment of any commissions due the above named brokers,
which shall only be deemed earned, if, as and when the Rent Commencement Date
occurs.
21. ESTOPPEL CERTIFICATE. SUBLESSOR and SUBLESSEE each agree at any time
from time to time, upon not less than ten (10) days prior notice to execute,
acknowledge and deliver to the
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other, a statement in writing, certifying to the extent possible that this
SUBLEASE is unmodified and in full force and effect, or if there have been
modifications, that the same is in full force and effect as modified and stating
such modifications and otherwise certifying if there exists any default under
the terms of this SUBLEASE and such other information as may be reasonably
requested concerning this SUBLEASE by the other party or any other third party
with a bona fide interest. Should either party fail to deliver to the other
party any such statement within ten (10) days of receipt of a written notice
requesting any such statement, the party failing to deliver any such statement
shall pay to the requesting party, the sum of $500.00 per day (as liquidated
damages and not as a penalty), for each day after such tenth (10th) day during
which such failure continues.
22. NOTICE. Any notice from the SUBLESSOR to the SUBLESSEE relating to the
Leased Premises or to the occupancy thereof shall be deemed duly served, if in
writing and delivered in hand, or by overnight/express courier or mailed by
registered or certified mail, return receipt requested, postage prepaid,
addressed to the SUBLESSEE,
Myco Pharmaceutical, Inc.
Xxx Xxxxxxx Xxxxxx
Xxxxxxxx 000
Xxxxxxxxx, XX 00000
Any notice from the SUBLESSEE to the SUBLESSOR relating to the Leased Premises
or to the occupancy thereof, shall be deemed duly served, if in writing and
delivered in hand, or by
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overnight/express courier or mailed to the SUBLESSOR by registered or certified
mail, return receipt requested, postage prepaid, addressed to the SUBLESSOR at
such address as the SUBLESSOR may from time to time advise in writing, the
following now being designated:
MYOCRT, INC.
c/o The Athenaeum Group
000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
with a copy to:
Old Cambridge Realty Trust
c/o The Athenaeum Group
000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Any notices delivered hereunder shall be deemed given when delivery is
first attempted during regular business hours. So long as SUBLESSEE delivers a
copy of its notice to SUBLESSOR contemporaneously to LESSOR, notice to
SUBLESSOR, in connection with any request requiring SUBLESSOR's consent,
including but not limited to SUBLESSEE's rights under Paragraphs 24, 25 and 26
shall be deemed to be notice from LESSEE to LESSOR under the Prime Lease.
Similarly, any approval or disapproval received by SUBLESSEE from LESSOR shall
be deemed to be the approval or disapproval of SUBLESSOR.
23. SURRENDER. Except as otherwise provided in this Paragraph 23 and in
Paragraph 11, the SUBLESSEE shall at the expiration or other termination of this
SUBLEASE yield up and peaceably surrender all portions of the Leased Premises to
SUBLESSOR and shall remove all SUBLESSEE'S goods and effects
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49
therefrom (including, without hereby limiting the generality of the foregoing,
all signs and lettering affixed or painted by the SUBLESSEE, either inside or
outside the Leased Premises). SUBLESSEE shall deliver to the SUBLESSOR the
Leased Premises and all keys, locks thereto, and all fixtures, alterations and
additions made to or upon the Leased Premises, except for equipment-moveable
partitions and furnishings leased or installed at the SUBLESSEE'S expense which
have previously been identified in writing as such from SUBLESSEE to SUBLESSOR,
in the same condition as they were after the construction of the Tenant
Improvements, or as they were put in during the term hereof, reasonable wear and
tear and damage by fire, other casualty or eminent domain and matters for which
the SUBLESSOR is responsible hereunder only excepted. All equipment, moveable
partitions and furnishings, which have previously been identified in writing as
such from SUBLESSEE to SUBLESSOR, installed in the Leased Premises at the
SUBLESSEE'S expense during the term of the SUBLEASE may be removed by the
SUBLESSEE at the expiration or other termination of the SUBLEASE. The SUBLESSEE
shall, at its expense, promptly repair any and all damage to the Leased Premises
resulting from such removal and shall restore or pay the cost of restoring, the
Leased Premises to the condition which existed after the completion of the
Tenant's Improvements or any approved alteration or addition, as the case may
be. In the event of the SUBLESSEE'S failure to remove any of the SUBLESSEE'S
property from the Leased Premises, SUBLESSOR is hereby authorized, upon fifteen
(15) days written notice to the
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SUBLESSEE without liability to SUBLESSEE for loss or damage thereto, and at the
sole risk of SUBLESSEE to (a) remove and store any of the property at
SUBLESSEE'S sole cost and expense, (b) deem any of SUBLESSEE'S property which
remains on the Leased Premises to be abandoned and in such case (i) retain it as
SUBLESSOR'S property or (ii) dispose of it without accountability at SUBLESSEE'S
expense, in such manner as SUBLESSOR may see fit. It is specifically understood
by the parties that the Tenant Improvements performed at the commencement of
this SUBLEASE, and referred to in Paragraph 3.3 of the SUBLEASE shall become the
property of the SUBLESSOR at the expiration or sooner termination of this
SUBLEASE. It is also understood by the parties that the SUBLESSEE may lease
equipment from third parties and in connection therewith, SUBLESSOR shall agree
to execute so-called Landlord Waivers in a form reasonably acceptable to
SUBLESSOR, which at minimum, shall include provisions (a) permitting the
equipment lessor to enter the Leased Premises for purposes of removal of leased
equipment so long as said equipment lessor agrees to restore the Leased Premises
and repair any damage caused by the removal of such leased equipment, and (b)
permitting (but not requiring) the SUBLESSOR an opportunity to cure any default
of SUBLESSEE, and thereby succeed to the rights of the equipment lessee under
the equipment lease. Upon execution or sooner or termination of this SUBLEASE,
such equipment shall, unless the parties agree otherwise, become the property of
the SUBLESSOR. In the event that at such expiration or termination of the
SUBLEASE, there is leased equipment for
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which lease payments are still outstanding, SUBLESSOR shall have the option of
making the payments due thereunder, and thereby succeed to the interest of the
SUBLESSEE in the equipment or may require the equipment lessor to remove the
leased equipment as set forth in the Landlord Consent form.
24. OPTION TO EXTEND. (a) Provided SUBLESSEE is not then in default beyond
any applicable grace period of notice or opportunity to cure, SUBLESSEE shall
have the option to extend this Sublease for one additional five (5) year term
commencing on the expiration of the initial term upon the same conditions as
herein contained, except the Annual Base Rent referred to in Paragraph 4 shall
be at fair market value then existing as determined by SUBLESSOR but in no event
less than $16.00 per square foot or more than $18.00 per square foot. In
addition, SUBLESSEE shall pay to SUBLESSOR the fair rental value of SUBLESSEE'S
parking spaces, as generally in effect in the Complex.
SUBLESSEE's option to extend shall be exercised by written notice from
SUBLESSEE and received by SUBLESSOR at least six (6) months prior to the
expiration of the initial term of the SUBLEASE, but not earlier than eight (8)
months prior to the expiration of the initial term of the SUBLEASE.
(b) In the event SUBLESSEE gives timely extension notice in accordance with
the provisions of Paragraph 24(a) hereof and the parties are unable to agree as
to the fair market rent within thirty (30) days after the receipt of SUBLESSEE's
extension notice, then SUBLESSOR or SUBLESSEE may initiate the appraisal
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52
process provided for herein by giving notice to that effect to the other, and
the party so initiating the appraisal process (the "Initiating Party") shall
specify in such notice the name and address of the person designated to act as
an appraiser on its behalf. Within thirty (30) days after the designation of the
appraiser, the other party (the "Other Party") shall give notice to the
Initiating Party specifying the name and address of the person designated to act
as an appraiser on its behalf. The two appraisers so chosen shall meet within
ten (10) days after the second appraiser is appointed and if, within ten (10)
days after the second appraiser is appointed, the two appraisers shall not agree
on a fair market rent, then on the second Business Day following the close of
such ten (10) day period, the two appraisers shall, within thirty (30) days
after the second appraiser is appointed, together appoint a third appraiser. In
the event of their being unable to agree upon such appointment within forty (40)
days after the appointment of the second appraiser, the third appraiser shall be
selected by the parties themselves if they can agree thereon within a further
period of fifteen (15) days. If the parties do not so agree, then either party,
on behalf of both and on notice to the other, may request such appointment by
the Boston Office of the American Arbitration Association (or organization
successor thereto) in accordance with its rules then prevailing. Within five (5)
days after the appointment of the third appraiser, the first appraiser and
second appraiser shall submit to such third appraiser their respective
determinations of the fair market rent as described in
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53
the immediately preceding clause. Such third appraiser shall, within fifteen
(15) days after the end of such five (5) day period, choose the fair market rent
specified by either the first appraiser or the second appraiser in such
submissions and the fair market rent selected by the third appraiser from the
fair market rents submitted by the first appraiser and the second appraiser
shall conclusively be deemed to be the fair market rent.
Each party shall pay the fees and expenses of the appraiser selected by it.
The fees and expenses of the third appraiser and all other expenses (not
including the attorney's fees, witness fees and similar expenses of the parties
which shall be borne equally by the parties thereto.
Under no circumstances may the appraisers modify or disregard any provision
of this Sublease or of the Prime Lease and the jurisdiction of the appraisers is
restricted accordingly. The appraisers shall include the fair market rent such
cost escalators as are then customary and appropriate. Fair Market Rental Value
is intended to be calculated in a fair and comprehensive manner so that Landlord
shall achieve, and Tenant shall pay based upon, an amount which is no less than
the same net rental which Landlord would actually receive upon a re-letting of
the applicable space in an arms-length transaction to an unrelated third party
tenant where neither party is under any compulsion or undue influence.
In the event SUBLESSOR or SUBLESSEE initiates the appraisal process
pursuant to this Article III and as of the commencement
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of the Extension Term the amount of the fair market rent has not been
determined, SUBLESSEE shall pay the amount specified by the SUBLESSOR's
appraiser, and when such determination has been made, it shall be retroactive as
of the commencement date of the Extension Term and any excess shall be credited
by SUBLESSOR to SUBLESSEE as against the next monthly Base Rent payment or
payments.
(c) In the event that SUBLESSEE does not exercise its option to extend
under this Paragraph 24, and SUBLESSOR rents the Leased Premises to a third
party in the Leased Premises' then "as is" condition for a laboratory use by the
third party, SUBLESSOR shall pay to SUBLESSEE, if, as and when received from the
third party ten (10%) percent of the "as is" base rent attributable to the
Leased Premises. Payments under this Paragraph shall be only during the period
of time, which, if SUBLESSEE had exercised its option to extend this SUBLEASE,
would have been years 11 through 15 of the SUBLEASE Term. The intent of this
Paragraph is to recognize SUBLESSEE's remaining share of the value of the Tenant
Improvements made at the inception of the SUBLEASE.
25. RIGHT OF FIRST OPPORTUNITY.
--------------------------
(a) RIGHTS. During the Term of this Sublease, SUBLESSEE shall have a "Right
of First Opportunity" to lease all or any portion of space in the Complex above
the ground floor level used or usable for laboratories, but at all times,
subject to predominate rights of first opportunity or rights of first refusal
granted to other tenants of the Complex (hereinafter the First Opportunity
Space).
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SUBLESSOR will notify SUBLESSEE in writing of its plans to lease any
portion of the First Opportunity Space to third parties. SUBLESSOR's notice
shall specify the square footage of the space and its location, the date of
availability, rent, allowances, concessions and all other material terms and
conditions which will apply to such space. SUBLESSEE will notify SUBLESSOR
within twenty (20) business days of SUBLESSOR's notice if SUBLESSEE wishes to
lease such space from SUBLESSOR on the term and conditions so specified and
otherwise on substantially the same terms and conditions as contained in the
Sublease. If SUBLESSEE notifies SUBLESSOR that it wishes to lease the First
Opportunity Space, SUBLESSOR and SUBLESSEE shall execute a lease agreement
incorporating such terms and conditions. If SUBLESSEE fails to notify SUBLESSOR
within said twenty (20) business day period that SUBLESSEE intends to lease such
First Opportunity Space or fails to execute a lease agreement for such First
Opportunity Space within thirty (30) business days of SUBLESSEE's notice of
intent to SUBLESSOR (or if such lease agreement is not executed with said thirty
(30) business day period for reasons beyond the reasonable control of SUBLESSEE,
such longer period as is reasonably required so long as any such delay is not
due to reasons within SUBLESSEE's reasonable control), SUBLESSOR shall be
entitled to lease such space to a third party at an effective rent, considering
all pertinent aspects of the SUBLESSOR proposed terms such as concessions,
allowances, broker fees and any other costs to SUBLESSOR, no lower and on other
terms not materially more favorable than those offered to SUBLESSEE; provided,
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however, if after negotiations with any such third party, SUBLESSOR desires to
lease such space at an effective rent which is lower or on other terms which are
materially more favorable than those offered to SUBLESSEE, SUBLESSOR will notify
SUBLESSEE, which notice shall include all material terms and conditions of
SUBLESSOR's proposed lease to such third-party, and SUBLESSEE will notify
SUBLESSOR within five (5) business days of SUBLESSOR's notice if SUBLESSEE
wishes to lease such space from SUBLESSOR on the terms and conditions so
specified. If SUBLESSEE fails to notify SUBLESSOR within said five (5) business
day period that SUBLESSEE intends to lease such First Opportunity Space or fails
to execute a lease agreement for such First Opportunity Space within thirty (30)
business days of SUBLESSEE's notice of intent to SUBLESSOR, (or if such lease
agreement is not executed within said thirty (30) business day period for
reasons beyond the reasonable control of SUBLESSEE, such longer period as is
reasonably required so long as any such delay is not due to reasons within
SUBLESSEE's reasonable control), SUBLESSOR shall be entitled to lease such space
to such third party on the terms and conditions set forth in SUBLESSOR's notice
to SUBLESSEE. If SUBLESSOR does not enter into such a lease for the First
Opportunity Space with another tenant within twelve (12) months after
SUBLESSOR's original notice to SUBLESSEE, then SUBLESSEE's rights under this
Section 9 shall be reinstated.
26. RIGHT OF FIRST REFUSAL. Provided SUBLESSEE is not then in default
beyond any applicable grace period of notice, or opportunity to cure, SUBLESSOR
hereby grants to SUBLESSEE a right
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of first refusal with respect to any additional space which hereinafter becomes
vacant in Building 300 ("Added Space") but only on the following terms and
conditions.
SUBLESSOR shall give to SUBLESSEE written notice of the availability of
Added Space. Prior to accepting any proposal for lease of any Added Space from
any other third parties SUBLESSOR shall give to SUBLESSEE written notice of the
proposed lease, and terms thereof. SUBLESSEE shall have ten (10) business days
following receipt of SUBLESSOR's notice to elect by written notice received by
SUBLESSOR within said time to add such space to the Leased Premises on the same
terms as the proposal for lease. Non-exercise by SUBLESSEE with respect to any
such space so offered in any one instance will extinguish SUBLESSEE's right with
respect to such space offered but will not extinguish SUBLESSEE's right with
respect to any other space not so offered.
27. SECURITY DEPOSIT. Upon execution of the Sublease SUBLESSEE shall
deposit one hundred fifty thousand ($150,000.00) dollars with the SUBLESSOR as
security for SUBLESSEE'S payment of rent and performance of its other obligation
under this Sublease and any renewals or extensions of this Sublease. If
SUBLESSEE defaults in its payment of rent or performance of its other
obligations under this Sublease, SUBLESSOR may use all or part of the security
deposit for the payment of rent or any other amount in default, or for the
payment of any other amount that SUBLESSOR may spend or become obligated to
spend by reason of SUBLESSEE'S default, or for the payment to SUBLESSOR or an
other loss or damage that SUBLESSOR may suffer by reason of SUBLESSEE'S
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58
default. If SUBLESSOR so uses any portion of the security deposit, SUBLESSEE
will restore the security deposit to its original amount within five (5) days
after written demand from SUBLESSOR. The security deposit will not be a
limitation on SUBLESSOR's damages or other rights under this Sublease, or a
payment of liquidated damages, or an advance of the rent. If SUBLESSEE pays the
rent and performs all of its other obligations under this Sublease, SUBLESSOR
will return the unused portion of the security deposit to SUBLESSEE within sixty
(60) days after the end of the term or such earlier time as provided for
hereunder; however, if SUBLESSOR has evidence that the security deposit has been
assigned to an assignee of the Sublease, SUBLESSOR will return the security
deposit to the assignee. SUBLESSOR may deliver the security deposit to a
purchaser of the premises and be discharged from further liability with respect
to it.
Said security deposit shall be held by SUBLESSOR for the benefit of
SUBLESSEE in an insured (for the full amount of the deposit), interest bearing
account at Neworld Bank with any interest thereon paid to SUBLESSEE on a
semi-annual basis. If SUBLESSEE is not in default of its obligations under the
Sublease on June 13, 1998 SUBLESSOR shall return the security deposit and any
interest thereon to SUBLESSEE, and no such deposit shall be required thereafter.
SUBLESSEE shall have the option at any time to substitute an irrevocable letter
of credit from a bank or other financial institution in lieu of the security
deposit required hereunder.
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28. HAZARDOUS WASTE INDEMNITY:
-------------------------
SUBLESSEE hereby agrees to indemnify and hold SUBLESSOR harmless from
and against any and all demands, claims, actions, losses, damages and
liabilities (the "Claims"), which may be imposed on, asserted against or
incurred by SUBLESSOR arising from or out of SUBLESSEE'S use and occupancy of
the demised premises, including, without limitation, any and all liabilities
pertaining to any present or future use (within the term of this lease) in
violation of any Federal, state, local or other laws, relating to pollution or
protection of the environment, including, without limitation, laws relating to
emissions, discharges, releases or threatened releases of pollutants,
contaminants, chemicals, or industrial, toxic or hazardous substances or wastes
into the environment (including, without limitation, ambient air, surface water,
ground water, land surface or subsurface strata) or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, chemicals, or industrial,
toxic or hazardous substances or wastes.
If any action or proceeding is brought against SUBLESSOR by reason of any
claim, SUBLESSEE, upon notice from SUBLESSOR, shall defend such action or
proceeding by counsel reasonably satisfactory to SUBLESSOR, and SUBLESSEE shall
pay all reasonable expenses incurred in connection with defending against such
action or proceeding.
29. MISCELLANEOUS.
-------------
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(a) The parties shall execute a so-called Short Form Notice of Lease in
conformity with M.G.L. c. 183 ss.4. The SUBLESSEE may record, at its expense,
said Notice of Lease.
(b) The SUBLESSOR reserves the right to assign or transfer any and all of
its right, title and interest under the SUBLEASE, including but not limited to
the benefit of all covenants of the SUBLESSEE hereunder. Notwithstanding
anything contained in this SUBLEASE to the contrary, it is specifically
understood and agreed that the obligations imposed upon the SUBLESSOR hereunder
shall be binding upon the SUBLESSOR and SUBLESSOR'S successors in interest only
with respect to breaches occurring during SUBLESSOR'S and SUBLESSOR'S
successors' ownership of SUBLESSOR'S interest hereunder and SUBLESSOR and its
said successors in interest shall not be liable for acts and occurrences arising
from and after the transfer of their interest as SUBLESSOR hereunder.
(c) This SUBLEASE shall be governed by and construed in accordance with the
laws of the Commonwealth of Massachusetts, as the same may from time to time
exist.
(d) SUBLESSOR shall reimburse SUBLESSEE for five thousand dollars in
transaction costs incurred in connection with the Lease. Said payment shall be
made if, as and when and only if the Rent Commencement Date occurs.
(e) This SUBLEASE contains all of the agreements of the parties with
respect to the subject matter thereof and supersedes all prior oral and written
negotiations and dealings between them with respect to such subject matter. The
agreement of the
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parties contained in this SUBLEASE shall not be modified or amended unless such
modification or amendment is in writing and signed by the parties.
(f) The SUBLESSEE acknowledges that SUBLESSEE has not been influenced to
enter into this SUBLEASE nor has it relied upon any warranties or
representations not set forth or incorporated in this SUBLEASE or previously
made in writing.
(g) If any term or provision of this SUBLEASE or the application thereof to
any person or circumstance shall to any extent be invalid or unenforceable, the
remainder of this SUBLEASE of the application of such term or provision to
persons or circumstances other than those as to which it is held invalid or
unenforceable shall not be affected thereby, and each term and provision of this
SUBLEASE shall be valid and enforced to the fullest extent permitted by law.
(h) The time for performance of any act required to be done by either party
shall be extended by a period equal to any delay caused by or resulting from act
of God, war, civil commotion, fire, casualty, labor difficulties, shortages of
labor or materials or equipment, and government regulation, ("force majeure
events"). Notwithstanding the provisions of Paragraph 3.1, the Rent Commencement
Date may be extended for SUBLESSOR caused delays, or force majeure events, but
in no event more than nine (9) months from the SUBLEASE Commencement Date.
(i) in the event that the Tenant Improvements Lender is paid in full,
SUBLESSEE recognizes that the Master Lessor has the option, exercisable
exclusively in its sole discretion, to
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replace MYOCRT, Inc. as its LESSEE with Myco Pharmaceutical, Inc. In that event,
Myco Pharmaceutical, Inc. shall become the LESSEE under the Prime Lease; MYOCRT,
Inc. shall be discharged from any further liability under the Prime Lease; this
Sublease shall be thereby extinguished and of no further force and effect; and
SUBLESSOR shall assume SUBLESSOR's obligations with respect to SUBLESSEE's
security deposit.
(j) SUBLESSEE shall have the option to prepay the NEWORLD tenant
improvement financing, together with any costs and prepayment penalty. In the
event that the SUBLESSEE exercises said option, the Base Rent for the Leased
Premises shall be recalculated on the basis of the remaining principal of the
NEWORLD loan (but not the costs or prepayment penalty) and the twelve (12%)
percent interest rate originally utilized in calculating the rent.
IN WITNESS WHEREOF, the SUBLESSOR and SUBLESSEE have hereunto set their
hands and common seals as of this 14th day of May, 1993.
MYOCRT, INC.
----------------------------------- ----------------------------------
XXXXXX X. XXXXX, PRESIDENT WITNESS
MYCO PHARMACEUTICAL, INC.
BY:
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PRESIDENT, duly authorized WITNESS
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[FLOOR PLAN]
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