New Lease In the event that this Lease is rejected in any bankruptcy, insolvency or dissolution proceeding or is terminated by Landlord following a Tenant Event of Default other than due to a default that is subject to cure by a Permitted Leasehold Mortgagee under Section 17.1(d) and Section 17.1(e) above, Landlord shall provide each Permitted Leasehold Mortgagee with written notice that this Lease has been rejected or terminated (“Notice of Termination”), and, for the avoidance of doubt, upon delivery of such Notice of Termination, no Permitted Leasehold Mortgagee shall have the rights as described in Section 17.1(d) and Section 17.1(e) above, but rather such Permitted Leasehold Mortgagee instead shall have the rights described in this Section 17.1(f)). Following any such rejection or termination, Landlord agrees to enter into a new lease (“New Lease”) of the Leased Property with such Permitted Leasehold Mortgagee or its Permitted Leasehold Mortgagee Designee for the remainder of the term of this Lease, effective as of the date of termination, at the rent and additional rent, and upon the terms, covenants and conditions (including all then-remaining options to renew but excluding requirements which have already been fulfilled) of this Lease, provided: (i) such Permitted Leasehold Mortgagee or its Permitted Leasehold Mortgagee Designee shall comply with the applicable terms of Section 22.2; (ii) such Permitted Leasehold Mortgagee or its Permitted Leasehold Mortgagee Designee shall make a binding, written, irrevocable commitment to Landlord for such New Lease within thirty (30) days after the date such Permitted Leasehold Mortgagee receives Landlord’s Notice of Termination of this Lease given pursuant to this Section 17.1(f); (iii) such Permitted Leasehold Mortgagee or its Permitted Leasehold Mortgagee Designee shall pay or cause to be paid to Landlord at the time of the execution and delivery of such New Lease, any and all sums which would at the time of execution and delivery thereof be due pursuant to this Lease but for such rejection or termination (including, for avoidance of doubt, any amounts that become due prior to and remained unpaid as of the date of the Notice of Termination) and, in addition thereto, all reasonable expenses, including reasonable documented attorney’s fees, which Landlord shall have incurred by reason of such rejection or such termination and the execution and delivery of the New Lease and which have not otherwise been received by Landlord from Tenant or other party in interest under Tenant; and (iv) such Permitted Leasehold Mortgagee or its Permitted Leasehold Mortgagee Designee shall agree to remedy any of Tenant’s defaults of which said Permitted Leasehold Mortgagee was notified by Landlord’s Notice of Termination (or in any other written notice of Landlord) and which can be cured through the payment of money or, if such defaults cannot be cured through the payment of money, are reasonably susceptible of being cured by Permitted Leasehold Mortgagee or its Permitted Leasehold Mortgagee Designee.
Assignment; Sublease 19.1 Lessor may sell, assign or otherwise transfer all or any part of its right, title and interest in and to the Equipment and/or this Lease Agreement to a third-party assignee, subject to the terms and conditions of this Lease Agreement including, but not limited to, the right to the quiet enjoyment of the Equipment by Lessee as set forth in Section 7.1 above. Such assignee shall assume all of the rights and obligations of Lessor under this Lease Agreement and shall relieve Lessor therefrom. Thereafter, all references to Lessor herein shall mean such assignee. Notwithstanding any such sale, assignment or transfer, the obligations hereunder shall remain absolute and unconditional as set forth in Section 7.2 above. 19.2 Lessor may also pledge, mortgage or grant a security interest in the Equipment and assign this Lease Agreement as collateral. Each such pledgee, mortgagee, lienholder or assignee shall have any and all rights as may be assigned by Lessor but none of the obligations of Lessor hereunder. Any pledge, mortgage or grant of security interest in the Equipment or assignment of this Lease Agreement shall be subject to the terms and conditions hereof including, but not limited to, the right to the quiet enjoyment of the Equipment by Lessee as set forth in Section 7.1 above. Lessor, by reason of such pledge, mortgage, grant of security interest or collateral assignment, shall not be relieved of any of its obligations hereunder which shall remain absolute and unconditional as set forth in Section 7.2 above. Upon the written request of Lessor, Lessee shall acknowledge such obligations the pledgee, mortgagee, lienholder or assignee. 19.3 LESSEE SHALL NOT SELL, TRANSFER, ASSIGN, SUBLEASE, CONVEY OR PLEDGE ANY OF ITS INTEREST IN THIS LEASE AGREEMENT OR ANY OF THE EQUIPMENT, WITHOUT THE PRIOR WRITTEN CONSENT OF LESSOR. Any such sale, transfer, assignment, sublease, conveyance or pledge, whether by operation of law or otherwise, without the prior written consent of Lessor, shall be void.
Assignment Subleasing A. Tenant shall not assign, sublet or otherwise license the whole or any part or use of the Premises nor otherwise permit the use or occupancy of all or any of the Premises by other than the Tenant signing this Lease without Landlord’s prior written consent, which consent shall be determined consistent with the Permitted Use and based upon Landlord’s determination of the business plan, adequacy of financial condition and clear business history of the proposed assignee, sublessee, licensee or user. In the event of a proposed assignment, financial statements, supporting data and credit references of the proposed assignee and its majority principals requested by Landlord shall be delivered to Landlord, and Landlord will not unreasonably withhold, condition or delay its consent provided, however, Landlord may withhold its consent for reasonable cause or if the proposed assignee’s creditworthiness, financial condition or business history is not reasonably satisfactory to Landlord, or if the proposed assignment, subletting or licensing is otherwise not in compliance with the terms of this Section 12. Notwithstanding such consent, Tenant shall remain liable to Landlord for the payment of all rent and for the full performance of all agreements, covenants and conditions of this Lease required of Tenant. Transfer of more than 49% of the ownership or control of Tenant’s business shall constitute an assignment. No assignment or subleasing shall be permitted unless the Yearly Fixed Rent to be paid by the proposed assignee or sublessee is at least equal to the Yearly Fixed Rent payable by Tenant to Landlord hereunder, except that Tenant may allow a customary then market rental concession not exceeding three (3) months. Notwithstanding the foregoing, at Tenant’s request, so long as Landlord does not then have available comparable size space (within fifteen percent (15%) more or less of the space proposed to be sublet) in the Building, the proposed sublet Yearly Fixed Rent will be not less than Twenty-Four ($24,00) Dollars per square foot (provided Tenant may allow a customary then market rental concession, not exceeding three (3) months if the sublease is for a period less than four (4) years, and not exceeding six (6) months if the sublease is for a period in excess of four (4) years). In the event of an assignment or subleasing, fifty (50%) percent of the excess of the rent and other compensation collectible by Tenant over the sum of (i) the Yearly Fixed Rent and Additional Rent due from Tenant under this Lease, and (ii) the reasonable expenses of Tenant in connection with said assignment or subleasing (including brokerage fees, legal fees, improvement costs and/or allowances and review fees/expenses payable to Landlord) amortized over the term of the assignment or sublease, shall be remitted to Landlord as Additional Rent as and when first received by Tenant; and, to the extent a sublease is for less than all the Premises, then the foregoing determination shall be based on a proportional square foot calculation by Landlord. Tenant shall not solicit any other tenant or occupant in the Building or their affiliates (“Building Occupant”) for the letting of all or any portion of the Premises as a sublessee, assignee or otherwise, provided, however, in the event a Building Occupant approaches Tenant for the purpose of subletting all or any portion of the Premises (the “Sublease Space”), Tenant shall immediately notify Landlord of the Building Occupant’s interest (“Sublet Interest Notice”) to enable Landlord to itself negotiate with the Building Occupant to enter into a lease for the Sublease Space directly with Landlord on terms and conditions acceptable to Landlord in its sole discretion. In the event Landlord intends to negotiate or is able to enter into a direct leasing arrangement with the Building Occupant with respect to the Sublease Space, Landlord shall so notify Tenant within sixty (60) days after Landlord’s receipt of the Sublet Interest Notice from Tenant, and in such event, within thirty (30) days after Landlord’s written request therefor, Landlord and Tenant will enter into an early termination agreement with respect to the Sublease Space on terms mutually acceptable to Landlord and Tenant, and Tenant shall vacate the Sublease Space and leave it in the condition required for surrender under the terms of the Lease, unless otherwise agreed by Landlord. In the event Landlord has not notified Tenant that Landlord has or intends to enter into a direct leasing arrangement for the Sublease Space with the Building Occupant within sixty (60) days after receipt of the Sublet Interest Notice from the Tenant, or if Landlord notifies Tenant that it has elected not to negotiate directly with the Building Occupant with respect to the Sublease Space, then Tenant shall have the right to enter into a sublease agreement directly with the Building Occupant for the Sublease Space, provided Tenant otherwise complies with the terms of this Section 12. No request for transfer, assignment or sublease will be considered unless written assurances reasonably satisfactory to Landlord are received to assure Landlord that it will be reimbursed its reasonable third party costs incurred in connection with the processing of Tenant’s request, including reasonable legal fees, whether or not consent is ultimately forthcoming. B. Landlord shall consent to an assignment or sublease to an Affiliate (as herein defined) of the Tenant named herein within seven (7) days after satisfaction of the following conditions precedent: (i) Tenant is not in default under this Lease, nor would be in default but for the giving of notice or the passage of time or both; (ii) Tenant and the Affiliate comply with the other provisions of this Section 12; (iii) Tenant has provided Landlord with thirty (30) days’ advance written notice (“Affiliate Assignee Notice”) of such proposed assignment or sublease together with Tenant’s certification and documentation that the assignment or sublease is in fact to an Affiliate and complies with the provisions of this subsection 12.B.; and (iv) in the event of an assignment, each of Tenant and the Affiliate (if they remain separate entities, otherwise the surviving company in the event of a merger) shall have a clear credit history and a net worth at least comparable to Tenant as of the date of this Lease (“Financial Condition Requirement”). An “Affiliate” shall mean an entity into or with which Tenant is merged or consolidated; or to which substantially all of Tenant’s assets are transferred; or which controls or is controlled by Tenant or is under common control with Tenant. Notwithstanding the foregoing, a so-called “spin-off or other series of assignments or subleasing to entities which individually would be Affiliates, but which taken together are intended to circumvent the intent of this subsection 12.B., shall not be permitted.
FIRST AMENDMENT TO LEASE This First Amendment to Lease (this “Amendment”), made as of March 16, 2006, by and between ARE-MA REGION NO. 28, LLC, a Delaware limited liability company (“Landlord”) and ALNYLAM PHARMACEUTICALS, INC., a Delaware corporation (“Tenant”).
Sublease Sublandlord hereby subleases to Subtenant and Subtenant hereby subleases from Sublandlord for the term, at the rental, and upon all of the conditions set forth herein, the Subleased Premises.