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SUBLEASE
Dated: August 31 , 1995
PRELIMINARY STATEMENT
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By a Lease (the "Main Lease"), MASSACHUSETTS INSTITUTE OF TECHNOLOGY
("Overlandlord") leased to Landlord the building known as and numbered ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇, containing approximately 37,700
rentable square feet in all (the "Main Premises"). The Initial Lease Term of
the Main Lease commenced on December 23, 1992, and will expire on ,
2003. Landlord desires to sublease to Tenant a portion of the Main Premises
as hereinafter described, and on the terms and conditions hereinafter set
forth.
1.0 PARTIES AND PREMISES. IMMUNOGEN, INC. ("Landlord") hereby
SUBLEASES unto ASTRA RESEARCH CENTER BOSTON, INC. a Massachusetts
corporation ("Tenant"), the following premises:
A portion of the building known as and numbered ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ (the "Building"), which portion
contains approximately 30,778 rentable square feet (consisting of
30,309 square of office and laboratory space and 469 square feet of
shipping area), and which comprises the entire Building other than
the portion shown on Exhibit A, which portion will be retained by
Landlord for its use. The Building is located on the parcel of land
(the "Land") shown on the plan attached hereto as Exhibit B, together
with the portion(s) of the parking area located on the Land as are
hereafter designated by Landlord and Tenant pursuant to Section 9.1
below (collectively, the "Leased Land") (such portion of the Building
being sometimes hereinafter referred to as the "Premises"),
together with the benefit of, and subject to (as the case may
be) all rights, easements, covenants, conditions, encumbrances,
encroachments and restrictions now or hereafter affecting the Building or
the Premises. Overlandlord has the right under the Main Lease, without the
necessity of obtaining Landlord's or Tenant's consent thereto or joinder
therein, to grant, permit, or enter into during the term of this Sublease
such additional rights, easements, covenants, conditions, encumbrances,
encroachments and restrictions with respect to the Land as Overlandlord
may deem appropriate, provided that, pursuant to the Main Lease, no such
rights, easements, covenants, conditions, encumbrances, encroachments or
restrictions shall materially affect Tenant's use of the Premises for the
Permitted Uses hereunder, to the extent that Tenant's use of the Premises
is consistent with Landlord's use under the Main Lease.
2.0 LEASE TERM; COMMENCEMENT DATE; EXTENSION OPTION.
2.1 LEASE TERM; COMMENCEMENT DATE. The initial term of
this Sublease (the "Initial Term") shall commence on September 1,
1995 (the "Commencement Date") and shall expire, unless sooner
terminated as hereinafter provided, at 11:59 p.m. on February 28,
1997.
2.2 EXTENSION OPTIONS. (a) Provided that, at the time of such
exercise, (i) there exists no Event of Default; (ii) this Sublease is
still in full force and effect; and (iii) Tenant shall not have assigned
this Sublease or sublet any or all of the Premises, Tenant shall have the
right to extend the Term of this Lease for two extended terms (the "First
Extended Term" and the "Second Extended Term") of one (1) year each. The
First Extended Term shall commence on March 1,
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1997, and shall end on February 28, 1998, and the Second Extended Term
shall commence on March 1, 1998, and shall end on February 28, 1999. Tenant
shall exercise each such option by giving Landlord notice of its desire to
do so, not later than (i) December 15, 1995 with respect to the First
Extended Term, and (ii) June 30, 1996 with respect to the Second Extended
Term, it being agreed that time shall be of the essence with respect to the
giving of each such notice. The giving of any such notice shall
automatically extend the term of this Sublease for the applicable Extended
Term, and no instrument of renewal need be executed. In the event that
Tenant fails to give such notice to Landlord, the term of this Lease shall
automatically terminate at the end of the term then in effect, and Tenant
shall have no further right or option to extend the term of this Sublease.
Each Extended Term shall be on all the terms and conditions of this Lease,
except that the Rent for each Extended Term shall be determined in
accordance with Section 3.1. As used in this Sublease, "Lease Term" shall
mean, collectively, the Initial Term and, if Tenant duly exercises either
extension option, then the applicable Extended Term.
3.0 RENT; NET LEASE
3.1 DEFINITIONS; PAYMENT OF RENT. Tenant shall pay Landlord,
without offset or deduction and without previous demand
therefor, as items constituting rent (collectively, "Rent"):
(a) Rent at the following rates:
(i) for each Lease Year of the Initial Term, $19.50
per rentable square foot of Premises per Lease
Year;
(ii) for each Lease Year during the First Extended Term,
an amount equal to the product of (x) the Rent
payable with respect to the Initial Term,
multiplied by (y) a fraction, the numerator of
which is the point at which the "Index" (as
hereinafter defined) stood at the last day of the
Initial Term, and the denominator of which is the
point at which the Index stood at the date hereof.
(iii) for each Lease Year during the Second Extended
Term, an amount equal to the sum of: (A) the
product of (x) the Rent payable with respect to the
First Extended Term, multiplied by (y) a fraction,
the numerator of which is the point at which the
Index stood at the last day of the First
Extended Term, and the denominator of which is the
point at which the Index stood at the first day of
the First Extended Term; plus (B) $2.00 per
rentable square foot contained in the Premises.
(b) For purposes hereof, the term "Index" shall mean
the United States Department of Labor Consumer Price
Index forUrban Consumers, Boston, MA, All Items,
1982-84=100 (CPI-U). As of July 31, 1995, the CPI-U was
157.8.
Basic Rent shall be due and payable in equal monthly
installments, in advance, commencing on the date hereof, and
continuing thereafter on the first day of each calendar month or
portion thereof during the Lease Term. Basic Rent shall be
pro-rated for partial months occurring at the beginning or the
end of the Lease Term; and
(c) All other costs, charges, or expenses which Tenant in
this Sublease agrees to pay, or which Landlord pays or
incurs as the result of a default by Tenant
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hereunder, including any penalty or interest which may be
added for nonpayment or late payment thereof as
provided in this Sublease (collectively, "Additional
Rent").
As used in this Sublease, "Lease Year" means the twelve (12)
month period commencing on September 1, 1995, and each
successive twelve (12) month period included in the Lease Term
commencing on an anniversary of that day, but if the expiration
of the Lease Term or the earlier termination of the Lease
does not coincide with the termination of such a twelve (12)
month period, the term "Lease Year" shall mean the portion of
such twelve (12) month period before such expiration or
termination.
All payments shall be made to Landlord at such place as Landlord
shall, from time to time, in writing designate, the
following being now so designated:
ImmunoGen, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇
3.2 RENT COMMENCEMENT DATES. Tenant's obligation under this Sublease to
pay Rent shall commence on September 1, 1995. Notwithstanding the
foregoing, the Rent for the month of September, 1995 shall be paid on
execution hereof.
3.4 NET LEASE. It is the intention of the Landlord and the Tenant that
this is a "net" lease and that the Rent herein specified shall be paid to
the Landlord in each month during the Lease Term, and that all costs,
expenses, and obligations of every kind relating to the Premises whether
usual or unusual, ordinary or extraordinary, foreseen or unforeseen, which
may arise or become due during the Lease Term, shall be paid by Tenant
except as otherwise specifically provided herein.
4.0 PERMITTED USE. The Premises shall be occupied by Tenant and used for
the following purposes (the "Permitted Uses") only and for no other:
Research laboratory, manufacturing and accessory and office uses, to the
extent permitted (either as a matter of right or pursuant to a duly-issued
special permit) under the Zoning Ordinance of the City of Cambridge, as
amended from time to time.
If Tenant elects to use the Premises for a research laboratory,
manufacturing or office use which requires a special permit from a
governmental authority, Overlandlord has agreed under the Main Lease, and
Landlord hereby agrees, to join in applying therefor, provided that (i)
such application shall be made and prosecuted solely at Tenant's cost and
expense, (ii) Tenant shall promptly reimburse Overlandlord and Landlord
for all out of pocket expenses reasonably incurred by them in connection
with such application, (iii) Tenant shall keep Overlandlord and Landlord
informed of the status thereof, including providing reasonable advance
notice of all hearings and working sessions involving governmental
representatives, which hearings and working sessions Overlandlord and
Landlord shall be entitled to attend, and (iv) such special permit shall
be issued subject only to such conditions (if any) as are reasonably
acceptable to Overlandlord and Landlord.
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5.0 TAXES.
5.1 TAXES. Tenant shall pay as Additional Rent 82.5% of all
taxes, special or general assessments, water rents, betterments,
rates and charges, sewer rents and other impositions and charges
imposed by Overlandlord on Landlord under the terms and conditions of
the Main Lease during the Lease Term, as well as any tax based on a
percentage fraction or capitalized value of the Rent (whether in lieu
of or in addition to the taxes hereinbefore described) (collectively,
"Taxes"). Notwithstanding the foregoing, with respect to betterments
imposed upon Landlord under the Main Lease, Tenant shall be
responsible only for that portion of such betterment as relates to
the Lease Term, which shall be computed on a "straight-line" basis.
5.2 PAYMENT OF TAXES. Landlord shall use its best efforts to
send copies of all bills for Taxes to Tenant within ten (10) days of
Landlord's receipt thereof. Tenant shall pay to Landlord, as
Additional Rent, 82.5% ("Tenant's Tax Share") of all Taxes paid by
Landlord to Overlandlord, as calculated in a manner consistent with
Exhibit C attached to the Main Lease, within ten (10) days of
Tenant's receipt of such copy of the bill. Provided that Tenant pays
Tenant's Tax Share of Taxes to Landlord within the time provided in
this Section 5.2, Landlord shall pay the Taxes to Overlandlord in a
timely manner under the Main Lease. Tenant's obligations under this
Section 5 shall be pro-rated for partial tax years at the beginning
or end of the Lease Term.
5.3 ABATEMENT OF TAXES. Pursuant to Main Lease, Landlord may
from time to time apply for an abatement or other reduction in the
amount of Taxes due under the Main Lease. In the event that Landlord
elects for any reason not to seek and abatement or reduction for any
fiscal year for which Tenant has paid or will pay a portion of Taxes,
Landlord shall so advise Tenant, not later than seven (7) business
days prior to the date on which applications are due, and (provided
that Overlandlord does not file any such application) Tenant may
thereafter file an application in its own name. If either party files
such an application, it shall thereafter pursue the same at its own
cost and expense, and shall at all times keep the other party
informed as to the status thereof and, if requested, provide the
other party with copies of relevant documentation. Neither party
shall in any event discontinue a pending application without giving
the other party reasonable advance notice thereof and affording the
other party a reasonable opportunity to substitute itself for the
discontinuing party. If and to the extent that either party actually
receives any refunds or abatements on account of Taxes, all or any
portion of which was paid by the other party hereunder, then upon
such receipt, the party obtaining the same shall pay to the other
party (provided that, in the case of a payment due Tenant, there then
exists no Event of Default), an amount equal to the other party's
share of such refund or abatement (net of any expense or cost
incurred in obtaining the same).
6.0 UTILITIES AND SERVICES. Landlord and Tenant shall share utilities,
such as electricity, natural gas, water and property damage insurance
charges, with Tenant being responsible for ninety percent (90%) of the
cost thereof, and Landlord being responsible for ten percent (10%) of the
cost thereof. Landlord and Tenant shall each pay for their own telephone
service. The water and sewer service for the Premises shall remain in the
name of Overlandlord, and those licenses or permits relating to the
Premises which are required by applicable laws, codes, ordinances, rules
or regulations to remain in Landlord's name (including, without
limitation, those relating to the backflow preventers now or hereafter
installed in the Building) shall remain in the name of
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Overlandlord, but Landlord and Tenant shall be responsible for the payment
of charges therefor, as hereinabove provided, which charges Tenant shall
pay to Landlord, as Additional Rent, within fifteen (15) days of Landlord's
receipt from Overlandlord of a demand for such payment together with a copy
of the applicable bill. As provided in the Main Lease, in no event shall
Overlandlord be responsible for charges for any utilities or services
consumed by Landlord or Tenant or provided to Tenant at the Premises.
7.0 INSURANCE
7.1 PUBLIC LIABILITY INSURANCE. Tenant shall take out and
maintain in force throughout the Lease Term comprehensive public
liability insurance, written on an occurrence basis, naming
Overlandlord, Landlord, Tenant, and persons claiming under them, if
any, as additional insureds against all claims and demands for any
injury to persons or property which may be claimed to have occurred
in, on or about the Premises or ways adjoining the Premises, in an
amount which at the beginning of the Lease Term shall not be less
than $5,000,000 for bodily injury, personal injury, death and
property damage, combined single limit, or such higher amounts as
Overlandlord shall reasonably determine are required by reason of
Tenant's use of the Premises, and which thereafter, if Overlandlord
requires, shall be in such higher amounts as are then consistent with
sound commercial practice in Cambridge, Massachusetts.
7.2 CASUALTY INSURANCE. As provided in the Main Lease,
Landlord shall maintain throughout the Lease Term a policy of fire,
vandalism, malicious mischief, extended coverage and so-called all
risk coverage insurance insuring the Building. ▇▇▇▇▇▇ agrees to
reimburse Landlord, as Additional Rent, for an amount equal to ninety
percent (90%) of the premiums, costs and expenses incurred by
Landlord for such insurance. Landlord shall use all reasonable
efforts to have Tenant named as an additional insured party on such
policy (provided that Tenant shall pay 100% of any additional premium
arising therefrom). Tenant shall make such payments to Landlord, from
time to time, within thirty (30) days after receipt of a copy of
Landlord's statement, which shall be accompanied by a copy of the
bill(s) from Landlord's insurer. Tenant shall not carry any insurance
concurrent in coverage and contributing in the event of loss with any
insurance required to be furnished by Landlord hereunder if the
effect of such separate insurance would be to reduce the protection
or the payment to be made under ▇▇▇▇▇▇▇▇'s insurance.
All insurance policies maintained pursuant to this Section
7.2 shall include insurance against payment of rents in an amount
sufficient to pay all Rent which would otherwise be required to be
paid under this Sublease during the period of restoration.
7.3 CERTIFICATE OF INSURANCE. All insurance required to be
maintained by Tenant hereunder: shall be placed with insurers
reasonably satisfactory to Landlord and authorized to do business in
Massachusetts; shall provide that it may not be canceled without at
least thirty (30) days prior written notice to each additional
insured or certificate holder named therein; and shall provide that
it may not be amended without at least fifteen (15) days prior
written notice to each such person. Tenant shall furnish to Landlord
certificates of insurance for all insurance required to be maintained
by Tenant under this Sublease, together with evidence satisfactory to
Landlord of the payment of all premiums for such policies. Tenant,
at Landlord's request, shall also deliver such
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certificates and evidence of payment to the holder of any mortgage
affecting the Premises or any portion thereof.
7.4 WAIVER OF SUBROGATION. To the extent to which a waiver of
subrogation clause is available, Landlord and Tenant shall obtain a
provision in all insurance policies carried by such party covering
the Premises, including but not limited to contents, fire and
casualty insurance, expressly waiving any right on the part of the
insurer against the other party and against Overlandlord. If extra
cost is chargeable for such provision, then Tenant shall pay such
extra charge.
7.5 WAIVER OF RIGHTS. All claims, causes of action and rights
of recovery for any damage to or destruction of persons, property or
business which shall occur on or about the Premises which result from
any of the perils insured under any and all policies of insurance
maintained by Landlord or Tenant, are waived by each party as against
the other party, and the officers, directors, employees, contractors,
servants and agents thereof, regardless of cause, including the
negligence of the other party and its respective officers, directors,
employees, contractors, servants and agents, but only to the extent
of recovery, if any, under such policy or policies of insurance;
provided, however, that this waiver shall be null and void to the
extent that any such insurance shall be invalidated by reason of this
waiver.
8.0 ASSIGNMENT AND SUBLETTING. Tenant shall not mortgage, pledge,
hypothecate, or assign this Sublease or sub-sublease the Premises or any
portion thereof (which term shall be deemed to include any arrangement
pursuant to which a third party is permitted by Tenant to occupy all or
any portion of the Premises).
9.0 PARKING.
9.1 PARKING. Tenant shall have the right to use forty-seven
(47) parking spaces in the surface parking lot located on the Land
(the "Parking Area"), which spaces are located pursuant to the Main
Lease. Such parking spaces shall be designated for use by Tenant
(but neither Overlandlord nor Landlord shall be responsible for
policing the use thereof). ▇▇▇▇▇▇ acknowledges and agrees that the
parking spaces along the fence on the southerly boundary of the Land
are already designated for use by another tenant and are not
available to Tenant. Landlord hereby grants to Tenant, as
appurtenant to the Premises, the right to use all access drives and
curb cuts to and from the Parking Area for purposes of vehicular
access to the Parking Area and the Building.
10.0 LATE PAYMENT OF RENT. Tenant agrees that in the event that any
payment of Basic Rent or Additional Rent shall remain unpaid at the close
of business on (x) with respect to Basic Rent, the seventh (7th) business
day after the same is due and payable hereunder, and (y) with respect to
Additional Rent, the seventh (7th) business day after receipt of
Landlord's invoice therefor, there shall become due to Landlord from
Tenant, as Additional Rent and as compensation for Landlord's extra
administrative costs in investigating the circumstances of late Rent, a
late charge of five percent (5%) of the amount overdue. The assessment or
collection of such a charge shall not be deemed to be a waiver by Landlord
of any default by Tenant arising out of such failure to pay Rent when due.
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11.0 TENANT'S COVENANTS. Tenant acknowledges that (except for latent and
structural defects, not apparent upon a reasonably careful visual
inspection) the Building is in good and satisfactory order, repair and
condition, and covenants, at its sole cost and expense, during the Lease
Term and such further time as Tenant holds any part of the Premises:
(a) to pay when due the Basic Rent and all Additional Rent, and
all charges for utilities and services supplied to the Premises
pursuant to agreements between Tenant and the appropriate utility
company or provider of such services,
(b) to keep the Premises, including, without limitation, the
Building systems (such as plumbing, heating, ventilation and air
conditioning, and electrical), the non-structural components of the
Building and window glass, (excluding the exterior skin of the
Building, the columns and beams and other structural members of the
Building, and the Parking Area), in as good order, repair and
condition as the same are in as of the date of this Sublease,
excepting only damage by fire or other casualty or taking which
Tenant is not otherwise required by the terms of this Sublease to
repair or restore, and reasonable wear and tear;
(c) not to injure, overload or deface the Premises, nor
knowingly to suffer or commit any waste therein, nor to place a load
upon any floor which exceeds the floor load which the floor was
designed to carry, nor to connect any equipment or apparatus to any
Building system which exceeds the capacity of such system, nor to
permit on the Premises any auction sale or any inflammable fluids or
chemicals which are not used, stored and disposed of in compliance
with all laws, ordinances, codes, rules and regulations, and the
provisions of any license, permit or other governmental consent or
approval required for or applicable now or at any time during the
Lease Term to the Premises of any portion thereof or Tenant's use
thereof (collectively, "Legal Requirements"), nor to permit any
nuisance or the emission from the Premises of any objectionable
vibration, noise, or odor, nor to permit the use of the Premises for
any purpose other than the Permitted Uses, nor any use thereof which
is contrary to any Legal Requirements, or which is liable to
invalidate any insurance on the Building or its contents, or liable
to render necessary any alterations or additions to the Building;
(d) not to obstruct in any manner any portion of the sidewalks
or approaches to the Building or any portion of the Parking Area;
(e) to comply with all Legal Requirements and all reasonable
recommendations of Landlord's and Overlandlord's fire insurance
rating organization now or hereafter in effect, to obtain and
maintain in full force and effect all licenses, permits and
governmental consents and approvals required by any Legal Requirement
for the operation of Tenant's business in the Premises (without
intending hereby to vary the provisions of Section 4.0 above), to
keep the Premises equipped with all reasonable and necessary safety
appliances, and to procure (and maintain in full force and effect)
all licenses, permits and other governmental consents and approvals
required by any Legal Requirement or by the provisions of any
applicable insurance policy because of the use made of the Premises
by Tenant, and, if requested by Landlord or Overlandlord, to make all
repairs, alterations, replacements or additions so required in and to
the Premises, and to cooperate with Landlord and Overlandlord in the
obtaining and renewal by Landlord or Overlandlord of all licenses,
permits and other governmental consents and approvals
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with respect to the Premises which Landlord or Overlandlord is
required by applicable laws, ordinances, codes, rules or regulations
to obtain in its own name, provided, however, that Tenant shall not be
required by this paragraph (e) to undertake any structural change,
improvement or modification to the Building in order to effect such
compliance, except to the extent that the requirement for the same
arises from Tenant's use of the Premises (as distinguished from
Landlord's Permitted Uses under the Main Lease);
(f) not to make any alterations, renovations, improvements and/or
additions to the Premises (collectively, "Alterations"), without on
each occasion obtaining prior written consent of Landlord and
Overlandlord (to the extent required under the Main Lease), which
consent may be withheld by Landlord in its reasonable discretion.
Prior to commencing any Alterations, Tenant shall: secure all
necessary licenses, permits and other governmental consents and
approvals; obtain the written approval of Landlord and, when required
by the Main Lease, of Overlandlord, as to the plans and specifications
for such work; obtain the written approval of Overlandlord and
Landlord as to the general contractor (not to be unreasonably
withheld, delayed or conditioned by Landlord, provided that
Overlandlord approves the same); cause each contractor and
subcontractor to carry worker's compensation insurance in statutory
amounts covering all of the contractor's and subcontractor's
employees; and cause each general contractor (or each trade contractor
if there is no general contractor) to carry comprehensive public
liability insurance in amounts reasonably satisfactory to Overlandlord
and Landlord (such insurance to be written by companies reasonably
satisfactory to them and insuring Tenant, Landlord and Overlandlord as
well as the contractors). All Alterations (other than Tenant's
removable personal property and trade fixtures) shall, at the option
of Landlord and Overlandlord, remain part of the Premises and shall
not be removed upon the expiration or earlier termination of the Lease
Term except for those items which Landlord or Overlandlord designates
for removal in a notice given to Tenant at the time that Tenant
requests Landlord's approval of such Alteration. Tenant shall pay
promptly when due the entire cost of such work. Tenant shall not cause
or permit any liens for labor or materials performed or furnished in
connection therewith to attach to the Land or the Building, and shall
discharge or bond any such liens which may be filed or recorded within
ten (10) days after the filing or recording thereof. All such work
shall be performed in a good and workmanlike manner and in compliance
with all Legal Requirements and the provisions of all applicable
insurance policies. Promptly after the completion of any Alterations,
Tenant shall provide an as-built plan (or, where appropriate in light
of the nature or scope of the Alterations, an as-built sketch) thereof
to Landlord. Tenant shall indemnify and hold Landlord and
Overlandlord harmless from and against any and all suits, demands,
causes of action, claims, losses, debts, liabilities, damages,
penalties or judgments, including, without limitation, reasonable
attorneys' fees, arising from injury to any person or damage to any
property occasioned by or growing out of such work performed prior to
the last day of the Lease Term, which indemnity shall survive the
expiration or termination of this Sublease;
(g) to save Landlord and Overlandlord harmless and indemnified
from any loss, cost and expense (including, without limitation,
reasonable attorney's fees) arising out of or relating to: (i) a
claim of injury to any person or damage to any property while on the
Premises, if not due to the negligence or willful misconduct of
Landlord, Overlandlord or their respective officers, agents,
employees, servants or contractors, or the breach of
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Landlord's obligations under this Sublease; or to (ii) a claim of
injury to any person or damage to any property in the Parking Area or
on the sidewalks or ways adjoining the Premises, to the extent
occasioned by any omission, neglect or default of Tenant or of anyone
claiming by, through, or under Tenant, or any officer, agent,
employee, servant, contractor or invitee of any of the foregoing.
The provisions of this clause (g) shall survive the expiration or
termination of this Sublease with respect to any claim arising prior
to the last day of the Lease Term;
(h) to permit Landlord, Overlandlord and their respective
agents to examine the Premises at reasonable times (provided 24 hours
notice is given to Tenant, except in case of emergency), and if
either shall so elect (without hereby imposing any obligation on
Landlord to do so), to permit Landlord or Overlandlord to make any
repairs or additions they may deem necessary; and at Tenant's expense
to remove any Alterations, signs, awnings, aerials or flagpoles, or
the like, not consented to in writing; and to permit Landlord and/or
Overlandlord to show the Premises to prospective purchasers and
tenants (at reasonable times on reasonable advance notice to Tenant)
and to keep affixed to any suitable part of the Premises, during the
twelve (12) months preceding the expiration of the Lease Term,
appropriate notices for letting or selling;
(i) that all merchandise, furniture, fixtures, effects and
property of every kind of Tenant and of all persons claiming by,
through or under Tenant which may be on the Premises from time to
time (collectively, "Tenant's Property") shall be at the sole risk of
Tenant, and neither Landlord nor Overlandlord shall be liable 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, or by theft or from any other cause
unless caused by the negligence or willful misconduct of Landlord or
Overlandlord, respectively;
(j) to pay promptly when due, all taxes of any kind levied,
imposed or assessed on Tenant's Property, which taxes shall be the
sole obligation of Tenant, whether the same is assessed to Tenant or
to any other person and whether the property on which such tax is
levied, imposed or assessed shall be considered part of the Premises
or personal property;
(k) by 5:00 p.m., local time, on the last day of the Lease Term
(or the effective date of any earlier termination of this Sublease as
herein provided), to remove all of Tenant's Property, and those
Alterations designated for removal as provided in paragraph (f)
above, whether the same be permanently affixed to the Premises or
not, and to repair any damage caused by any such removal to the
reasonable satisfaction of Landlord and Overlandlord; and peaceably
to yield up the Premises clean and in good order, repair and
condition (excepting only reasonable wear and tear, and damage by
fire or other casualty or taking which (in the case of the early
termination of this Sublease) Tenant is not otherwise required by the
terms of this Sublease to repair or restore); and to deliver the keys
to the Premises to Landlord. Any of Tenant's Property or those
Alterations designated for removal as provided in paragraph (f)
above, which is not removed by such date shall be deemed abandoned
and may be removed and disposed of by Landlord in such manner as
Landlord may determine, and Tenant shall pay to Landlord on demand,
as Additional Rent, the entire cost of such removal and disposition,
together with the costs and expenses incurred by Landlord in making
any incidental repairs and replacements to the Premises necessitated
by Tenant's failure to remove Tenant's
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Property or any of those Alterations designated for removal as
provided in paragraph (f) above, as required herein or by any other
failure of Tenant to comply with the terms of this Sublease, and for
use and occupancy during the period after the expiration of the Lease
Term and prior to Tenant's performance of its obligations under this
clause (k). Tenant hereby acknowledges that any failure or delay on
▇▇▇▇▇▇'s part in surrendering the Premises as above provided shall
subject Landlord to liability to Overlandlord and to the expense of
performing such work and the risk of losing a successor subtenant;
(l) to pay Landlord's reasonable expenses (including without
limitation any costs or expenses that Landlord may have to pay to
Overlandlord), including reasonable attorneys' fees, incurred in
enforcing any obligations of Tenant under this Sublease;
(m) not to generate, store or use any "Hazardous Materials" (as
hereinafter defined) in or on the Premises except in compliance with
any and all applicable Legal Requirements, or dispose of Hazardous
Materials from the Premises to any other location, except a properly
approved disposal facility and then only in compliance with any and
all applicable Legal Requirements, nor permit any occupant of the
Premises to do so. As used in this Sublease, "Hazardous Materials"
means and includes any chemical, substance, waste, material, gas or
emission which is radioactive or is deemed hazardous, toxic, a
pollutant, or a contaminant under any statute, ordinance, by-law,
rule, regulation, executive order or other administrative order,
judgment, decree, injunction or other judicial order of or by any
governmental authority, now or hereafter in effect, relating to
pollution or protection of human health or the environment. By way
of illustration and not limitation, "Hazardous Materials" includes
"oil", "hazardous materials", "hazardous waste", and "hazardous
substance" as defined in the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. Section 9601 et seq., as
amended, the Resource Conservation and Recovery Act of 1976, 42
U.S.C. Section 6902 et seq., as amended, and the Toxic Substances
Control Act, 15 U.S.C. Section 2601 et seq., as amended, the
regulations promulgated thereunder, and Massachusetts General Laws,
Chapter 21C and Chapter 21E and the regulations promulgated
thereunder. If, at any time during the Lease Term, any governmental
authority requires testing to determine whether there has been any
release of Hazardous Materials by ▇▇▇▇▇▇, then Tenant shall reimburse
Landlord upon demand, as Additional Rent, for the reasonable costs
thereof. Tenant shall execute such affidavits as may be reasonably
requested by ▇▇▇▇▇▇▇▇ from time to time, concerning ▇▇▇▇▇▇'s best
knowledge and belief concerning the presence of Hazardous Materials
in or on the Premises. Tenant shall provide to Landlord copies of
all applications and filings made by or on behalf of Tenant with any
federal, state or local governmental authority having jurisdiction
over Hazardous Materials, which identify any Hazardous Materials
used, generated, stored, disposed of or transported to or from the
Premises by Tenant. Landlord and Overlandlord each reserves the right
to enter the Premises at reasonable times (provided twenty-four (24)
hours' notice is given to Tenant, except in case of emergency) to
inspect the same for Hazardous Materials. Tenant's obligations under
this paragraph (m) shall include, if at any time during the Lease
Term Tenant uses or stores radioactive materials on the Premises,
compliance with all so-called "close-out" procedures of the Nuclear
Regulatory Commission or other federal, state or local governmental
authorities having jurisdiction over radioactive materials,
regardless of whether or not such procedures are completed prior to
the expiration or earlier termination of the Lease Term. Tenant
shall indemnify, defend, and hold harmless Landlord and Overlandlord,
as well as the holder(s) of any mortgage(s) on
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the Premises or any portion thereof, from and against any claim, cost,
expense, liability, obligation or damage, including, without
limitation, reasonable attorneys' fees and the cost of litigation,
arising from or relating to the breach by Tenant of the provisions of
this clause (m), and shall immediately discharge or cause to be
discharged any lien imposed upon the Building or the Land in
connection with any such claim. The provisions of this clause (m)
shall survive the expiration or termination of this Sublease; and
(n) not knowingly to permit any officer, agent, employee,
servant, contractor or visitor of Tenant to violate any covenant or
obligation of Tenant hereunder.
12.0 INTENTIONALLY OMITTED.
13.0 EMINENT DOMAIN AND CASUALTY. With respect to any taking or damage to
the Premises or the Building, Tenant expressly acknowledges and agrees
that Landlord shall have no repair responsibility or liability, and Tenant
shall not look to Landlord for the same, except to the extent to which
Landlord is expressly liable for the same under Section 13.5(b) of the
Main Lease. However, ▇▇▇▇▇▇▇▇ agrees to use all reasonable efforts to
enforce its rights and Overlandlord's obligations under the Main Lease in
respect of any matter covered by this Article 13. Further, in the event
that the Main Lease shall be terminated as a result of any taking, fire or
other casualty or event described in Article 13 of the Main Lease, this
Sublease shall similarly terminate immediately prior to the termination of
the Main Lease, and Landlord shall have no liability or obligation to
Tenant as a result of such termination.
13.1 SUBSTANTIAL TAKING. In the event that the Main Lease is
terminated due to any exercise of the right of eminent domain or
other lawful power in pursuance of any public or other authority
during the Lease Term, then this Sublease shall terminate immediately
prior to the termination of the Main Lease.
13.2 PARTIAL TAKING. In the event that a taking (other than a
de minimus taking) occurs and this Sublease is not terminated
pursuant to Section 13.1 above, then either Landlord or Tenant shall
have the right to terminate this Sublease by giving the other party
notice of its desire to do so, within 30 days after notice of such
taking, such termination to be effective on the day preceding the
date possession is taken by the taking authority. Rent and other
charges hereunder shall be apportioned as of the effective date of
such termination.
13.3 AWARDS. Landlord reserves and excepts all rights to damage
to the Premises and the leasehold hereby created, now accrued or
hereafter accruing by reason of any exercise of eminent domain, or by
reason of anything done in pursuance of any public or other
authority, and by way of confirmation, Tenant grants to Landlord any
and all of Tenant's rights to such damages and covenants to execute
and deliver such further instruments of assignment thereof as
Landlord may from time to time request. Tenant shall be entitled
only to such award, if any, as is specifically allocated by the
taking authority to Tenant on account of relocation expenses as a
result of such taking.
13.4 SUBSTANTIAL CASUALTY. If the Premises are damaged by fire
or other casualty, Tenant shall promptly notify Landlord and
Overlandlord thereof. If the Main Lease is terminated due to any fire
or casualty during the Lease Term, then this Sublease shall terminate
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immediately prior to the termination of the Main Lease. Further, if
within sixty (60) days after the occurrence of such fire or other
casualty, Overlandlord reasonably determines that it will not be able
to repair, restore or reconstruct the shell of the Building (i. e.,
the exterior skin, roof, structural columns and beams of the
Building) within five (5) months of the date on which Overlandlord
commences such work (subject to extension by reason of "Force
Majeure" (as defined in Section 22.0 of the Main Lease)), Landlord
shall so notify Tenant and Tenant shall have the right, within twenty
(20) days after its receipt of Landlord's notice, to terminate this
Sublease on twenty (20) days' prior written notice. In the event that
this Sublease is terminated pursuant to this Section 13.4: (i) Rent
shall be abated, to the extent the Premises are unusable for the
Permitted Uses, from and after the date of such damage to the date of
such termination of this Sublease, and no further Rent shall accrue
or be payable after the date of such termination; and (ii) Tenant
shall turn over and assign to Landlord all insurance proceeds (and
rights' to receive the same) relating to the Building.
13.5 REPAIR AND RESTORATION. In the event of a taking which does
not result in the termination of this Sublease pursuant to Section
13.1 above, or a casualty which does not result in the termination of
this Sublease pursuant to Section 13.4 above, the Premises shall be
repaired and restored as provided in the Main Lease, except that
Tenant shall be solely responsible for restoration of any Alterations
made by Tenant.
Neither Overlandlord nor Landlord shall be liable for any
inconvenience or annoyance to Tenant or injury to the business of
Tenant resulting in any way from such taking or damage or the repair
thereof. Rent shall be abated from and after the date of such taking
or damage to the date on which the Premises are substantially
completed, to the extent the Premises are unusable for the Permitted
Uses, but the amount of such abatement shall not exceed the amount
actually received by Landlord under the rental loss insurance policy
required by Section 7.2 above.
In the event that the Premises have not been substantially
restored to such a condition that (except for than Tenant's
Alterations and Tenant's Property), the Premises are usable by Tenant
for Permitted Uses, within six (6) months after the date of such
damage (which period shall be extended for any delays caused by the
acts or omissions of Tenant, its employees, agents, contractors or
servants), Tenant shall have the right to terminate this Sublease on
at least twenty (20) days' prior written notice to Landlord, such
notice to be given within twenty (20) days of the expiration of such
6-month period.
13.6 CASUALTY DURING LAST 6 MONTHS. Notwithstanding anything to
the contrary contained in this Sublease, in the event that a material
portion of the Building is damaged by a fire or other casualty
occurring during the last six (6) months of the Lease Term (including
any Extended Term with respect to which Tenant shall theretofore have
exercised its option to extend), either party may terminate this
Sublease by giving written notice to the other within twenty (20)
days of the occurrence of such damage. If this Sublease is so
terminated, Tenant shall turn over and assign to Landlord all
insurance proceeds (and rights to receive the same) relating to the
Building and any Alterations.
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14.0 DEFAULTS; EVENTS OF DEFAULT; REMEDIES.
14.1 DEFAULTS; EVENTS OF DEFAULT. The following shall, if any
requirement for notice or lapse of time or both has not been met,
constitute defaults hereunder, and, if such requirements have been
met, constitute "Events of Default" hereunder:
(a) The failure of Tenant to perform or observe any
of Tenant's covenants or agreements hereunder concerning the
payment of money for a period of five (5) days after written
notice thereof, provided, however, that Tenant shall not be
entitled to such notice if Landlord has given notice to Tenant
of two or more previous such failures within a twelve-month
period, in which event such failure shall constitute an Event of
Default hereunder upon the expiration of five (5) days after
such payment was due;
(b) The failure of Tenant to maintain any insurance
required hereunder in full force and effect;
(c) The failure of Tenant to perform or observe any
of Tenant's other covenants or agreements hereunder for a period
of twenty (20) days after written notice thereof (provided that,
in the case of defaults not reasonably curable in twenty (20)
days through the exercise of reasonable diligence, such 20-day
period shall be extended for so long as Tenant commences cure
within such period and thereafter prosecutes such cure to
completion continuously and with reasonable diligence);
(d) The failure of Tenant to perform or observe any
of Tenant's covenants or agreements under that certain Equipment
Use and Services Agreement of even date, between Landlord and
Tenant, which failure concerns the payment of money and
continues beyond any applicable notice and grace periods
therein;
(e) if the leasehold hereby created shall be taken on
execution, or by other process of law, and such taking is not
vacated by a final order of a court of competent jurisdiction
within sixty (60) days thereafter; or if any assignment shall be
made of Tenant's property for the benefit of creditors; or if a
receiver, guardian, conservator, trustee in bankruptcy or
similar officer shall be appointed to take charge of all or any
part of Tenant's property by a court of competent jurisdiction,
and such appointment is not vacated by a final order of a court
of competent jurisdiction within sixty (60) days thereafter; or
if a petition is filed by Tenant under any bankruptcy or
insolvency law; or if a petition is filed against Tenant under
any bankruptcy or insolvency law and the same shall not be
dismissed within sixty (60) days from the date upon which it is
filed; or if a lien or other involuntary encumbrance is filed
against Tenant's leasehold (or against the Premises based on a
claim against Tenant) and is not discharged or bonded within ten
(10) days after the filing thereof.
14.2 TERMINATION. If an Event of Default shall occur, Landlord
may, at its option, immediately or any time thereafter and without
demand or notice, enter upon the Premises or any part thereof in the
name of the whole and repossess the same as of Landlord's former
estate and dispossess Tenant and those claiming through or under
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Tenant and remove their effects, without being deemed guilty of any
manner of trespass and without prejudice to any remedies which might
otherwise be used for arrears of rent or preceding breach of
covenant, and upon such entry this Sublease shall terminate. In lieu
of making such entry, Landlord may terminate this Sublease upon ten
(10) days' prior written notice to Tenant. Upon any termination of
this Sublease as the result of an Event of Default, Tenant shall quit
and peacefully surrender the Premises to Landlord.
14.3 SURVIVAL OF COVENANTS. No such termination of this
Sublease shall relieve Tenant of its liability and obligations under
this Sublease and such liability and obligations shall survive any
such termination. Tenant shall indemnify and hold Landlord harmless
from all loss, cost, expense, damage or liability arising out of or
in connection with such termination.
In the event of any such termination, Tenant shall pay to
Landlord the Rent up to the time of such termination. Tenant shall
remain liable for, and shall pay on the days originally fixed for
such payment hereunder, the full amount of all Basic Rent and
Additional Rent as if this Sublease had not been terminated;
provided, however, if Landlord relets the Premises, there shall be
credited against such obligation the amount actually received by
Landlord each month from such lessee after first deducting all costs
and expenses (including without limitation attorneys' fees and costs)
incurred by Landlord in connection with repossessing and reletting
the Premises.
At any time after such termination, and regardless of
whether Tenant has made any payments to Landlord pursuant to the
preceding paragraph of this Section, Landlord may demand and Tenant
agrees to pay to Landlord on such demand, as and for liquidated and
agreed damages for Tenant's default, the present value of the amount
by which the aggregate Rent which would have been payable under this
Sublease by Tenant from the date of such termination until what would
have been the last day of the Lease Term but for such termination,
exceeds the fair and reasonable rental value of the Premises for the
same period, less Landlord's reasonable estimate of expenses to be
incurred in connection with reletting the Premises, including,
without limitation, all repossession costs, brokerage commissions,
legal expenses, reasonable attorneys' fees and expenses of
preparation for such reletting.
In the event of the filing of a petition by or against
Tenant under any federal bankruptcy or insolvency law now or
hereafter in effect, nothing herein contained shall limit or
prejudice the right of Landlord to prove and obtain as liquidated
damages by reason of such termination, 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, such damages are to be proved,
whether or not such amount be greater, equal to, or less than the
amount of the difference referred to above.
14.4 RIGHT TO RELET. At any time or from time to time after any
such termination, Landlord may relet the Premises or any part thereof
for such a term (which may be greater or less than the period which
would otherwise have constituted the balance of the Lease Term) and
on such conditions (which may include concessions or free rent) as
Landlord, in its reasonable discretion, may determine, and may
collect and receive the rents therefor. Landlord shall in no way be
responsible or liable for any failure to relet the Premises or any
part thereof, or for any failure to collect any rent due upon any
such reletting.
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14.5 RIGHT TO EQUITABLE RELIEF. In the event there shall occur
a default or threatened default hereunder, Landlord shall be entitled
to seek to enjoin such default or threatened default and shall have
the right to invoke any right and remedy allowed at law or in equity
or by statute or otherwise as though re-entry and other remedies were
not provided for in this Sublease.
14.6 RIGHT TO CURE. In the event of the occurrence of an Event
of Default hereunder, Landlord or Overlandlord shall have the right
to perform such defaulted obligation of Tenant, including the right
to enter upon the Premises to do so. In the event of a default by
Tenant hereunder which has not yet continued beyond the expiration of
the applicable grace period but which Landlord determines constitutes
an emergency threatening imminent injury to persons or damage to
property, Landlord or Overlandlord shall have the right to perform
such defaulted obligation of Tenant after giving Tenant such notice
(if any) as is reasonable under the circumstances. In either event,
the aggregate of (i) all sums so paid by Landlord or Overlandlord, as
the case may be, (ii) interest at the rate of the "prime" rate from
time to time thereafter published in The Wall Street Journal plus
1-1/2% per annum, or the highest rate permitted by law, whichever is
less, on such sum, and (iii) all necessary incidental costs and
expenses in connection with the performance of any such act by
Landlord or Overlandlord, shall be deemed to be Additional Rent under
this Sublease and shall be payable immediately upon demand. Landlord
or Overlandlord may exercise its rights under this Section 14.6
without waiving any other of Landlord's rights or releasing Tenant
from any of its obligations under this Sublease.
14.7 FURTHER REMEDIES. Nothing in this Sublease contained shall
require Landlord to elect any remedy for a default or Event of
Default by Tenant hereunder, and all rights herein provided shall be
cumulative with one another and with any other rights and remedies
which Landlord may have at law or in equity in the case of such a
default or Event of Default.
15.0 REAL ESTATE BROKER. Landlord and Tenant each represent to the other
that they have dealt with no broker (other than ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇'▇▇▇▇▇▇)
in connection with this Sublease. ▇▇▇▇▇▇ agrees to indemnify and hold
Landlord harmless from and against any claims for commissions or fees by
any person (other than ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇'▇▇▇▇▇▇) claiming to have dealt
with Tenant in connection with this Sublease. ▇▇▇▇▇▇▇▇ agrees to indemnify
and hold Tenant harmless from and against any claims for commissions or
fees by any person claiming to have dealt with Landlord in connection with
this Sublease. Landlord shall be responsible for payment of any
commissions due Fallon, ▇▇▇▇▇ & ▇'▇▇▇▇▇▇ as a result of this Sublease.
16.0 NOTICES. Whenever by the terms of this Sublease notice, demand, or
other communication shall or may be given either to Landlord or to Tenant,
the same shall be in writing and shall be sent by hand, or by registered
or certified mail, postage prepaid, or by Federal Express or other similar
overnight delivery service:
Overlandlord: Massachusetts Institute of Technology
Suite ▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
Director of Real Estate
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with a copy to: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
One Financial Center
Boston, Massachusetts 02111
Landlord: ImmunoGen, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Chief Financial Officer
with a copy to: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇
One Financial Center
Boston, Massachusetts 02111
Tenant: ASTRA Research Center Boston, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
with a copy to: ▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
and to: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, AB
43183 Molndal,
Sweden
Any notice, demand or other communication shall be effective upon receipt
by or tender for delivery to the intended recipient thereof.
17.0 NO WAIVERS. Failure of either Landlord or Tenant to complain of any
act or omission on the part of the other, no matter how long the same may
continue, shall not be deemed to be a waiver by such non-complaining party
of any of its rights hereunder. No waiver by either Landlord or Tenant at
any time, expressed or implied, of any breach of any provision of this
Sublease shall be deemed a waiver of a breach of any other provision of
this Sublease or a consent to any subsequent breach of the same or any
other provision. No acceptance by Landlord of any partial payment shall
constitute an accord or satisfaction but shall only be deemed a partial
payment on account; nor shall any endorsement or statement on any check or
any letter accompanying any check or payment be deemed an accord and
satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance of such installment
or pursue any other remedy available to Landlord in this Sublease or at
law or in equity.
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18.0 LANDLORD'S OBLIGATIONS.
18.1 GENERALLY. Landlord shall:
(a) save Tenant harmless and indemnified from any
loss, cost and expense (including, without limitation,
reasonable attorney's fees) arising out of or relating to a
claim of injury to any person or damage to any property while on
the Premises or the Parking Area to the extent occasioned by any
omission, neglect or default of Landlord or any officer, agent,
employee, servant, contractor or invitee of Landlord.
(b) indemnify, defend, and hold harmless Tenant from
and against any claim, cost, expense, liability, obligation or
damage, including, without limitation, reasonable attorneys'
fees and the cost of litigation, arising from or relating to the
unlawful release or presence (whether now existing or hereafter
arising) of Hazardous Materials in the Premises, to the extent
occasioned by any negligent or wrongful act or omission of
Landlord or any officer, agent, employee, servant, contractor or
invitee of Landlord;
(c) not knowingly permit any officer, agent,
employee, servant, contractor or visitor of Landlord to violate
any covenant or obligation of Landlord hereunder; and
(d) to pay Tenant's reasonable expenses, including
reasonable attorneys' fees, incurred in enforcing any
obligations of Landlord under this Sublease.
18.2 OVERLANDLORD'S MAINTENANCE. Pursuant and subject to the
terms and conditions of the Main Lease, it is the sole responsibility
of Overlandlord to maintain: (i) the structural columns and beams of
the Building, (ii) the exterior skin of the Building, and (iii) the
Parking Area in good order, repair and condition, except as otherwise
set forth in the Main Lease. ▇▇▇▇▇▇▇▇ agrees to use all reasonable
efforts to enforce the obligations of Overlandlord under the Main
Lease, but Tenant expressly agrees that Landlord shall have no
obligation or liability for any such maintenance over and above
Landlord's obligation to use such reasonable efforts, and Tenant
shall reimburse Landlord on demand any costs or expenses incurred in
connection with such efforts.
18.3 SERVICES. Pursuant and subject to the terms and conditions
of the Main Lease, it is the sole responsibility of Overlandlord to
provide to the Premises during the Lease Term (collectively,
"Overlandlord's Services") shall be: (i) maintenance of the Parking
Area (including snowplowing and sweeping), (ii) lighting of the
Parking Area (including maintaining such lighting system), and (iii)
such other services (if any) as Overlandlord may reasonably determine
from time to time are necessary for the maintenance and operation of
the Premises and which either are not provided by Landlord or Tenant
or cannot, as a matter of law, be provided to the Premises in the
name of Landlord or Tenant. Landlord is obligated under the Main
Lease to reimburse Overlandlord for a portion of the cost of
providing such services. ▇▇▇▇▇▇ agrees to reimburse Landlord an
amount equal to 82.5% of all amounts paid by Landlord to Overlandlord
in connection with services provided by Overlandlord under the Main
Lease. Within a reasonable time after the end of each of
Overlandlord's fiscal years (or portion thereof) occurring during the
Lease Term, Landlord shall deliver to Tenant (i) a statement of the
cost of such
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Services for the fiscal year just ended (the "Statement"), and (ii)
an itemization of the amount of Tenant's share of the cost of
Landlord's Services for such fiscal year. Tenant shall pay to
Landlord, as Additional Rent, within twenty (20) days of its receipt
of the Statement, the amount shown thereon as Tenant's share of the
cost of such Services for such fiscal year.
Neither Overlandlord nor Landlord shall ever be held liable
to anyone for the cessation of any of such Services due to any
accident, to the making of repairs, alterations or improvements, or
to the occurrence of an event of "Force Majeure" (as hereinafter
defined). Landlord shall have no obligation to provide any services
of whatever nature to the Premises. ▇▇▇▇▇▇▇▇ agrees to use all
reasonable efforts to enforce the obligations of Overlandlord under
the Main Lease to provide such Services, but ▇▇▇▇▇▇ expressly agrees
that Landlord shall have no obligation or liability for the same over
and above Landlord's obligation to use such reasonable efforts, and
Tenant shall reimburse Landlord on demand any costs or expenses
incurred in connection with such efforts.
19.0 SUBORDINATION OF SUBLEASE; CONSENTS.
19.1 INTENTIONALLY OMITTED
19.2 LEASE SUBORDINATE. This Sublease is and shall be subject
and subordinate to the Main Lease, and to each and every term and
provision thereof, and to any ground lease or mortgage now or
hereafter affecting the Land, the Building or the Premises. In the
event of any termination of the Main Lease, for whatever reason,
including without limitation operation of law or agreement of the
parties, prior to the expiration or earlier termination of the Lease
Term, this Sublease shall immediately cease and terminate, without
further obligation or liability of Landlord or Tenant (except as to
those liabilities that expressly survive the expiration hereof).
Notwithstanding the foregoing, Landlord shall obtain the written
agreement of Overlandlord whereby if, as a result of a default by
Landlord under the Main Lease, Overlandlord shall succeed to the
interests of Landlord hereunder, then so long as no Event of Default
on the part of Tenant exists hereunder and ▇▇▇▇▇▇ continues to
perform it obligations hereunder, ▇▇▇▇▇▇'s right to possession of the
Premises and other rights under this Sublease shall not be disturbed
by Overlandlord, and Tenant shall attorn to and accept Overlandlord
as the Landlord hereunder.
19.3 CONSENTS. Where any such consent is required or requested,
Landlord may withhold the same for any reason, unless this Sublease
expressly states that such consent shall not be unreasonably
withheld. Wherever under this Sublease, ▇▇▇▇▇▇▇▇'s consent is
required or is otherwise requested, and the consent of Overlandlord
is also required, Landlord shall under no circumstances have any
liability for failure to give such consent unless and until
Overlandlord shall have given its consent. Tenant shall reimburse
Landlord for any cost or expense incurred by Landlord in evaluating a
request for consent or approval, or for preparation and negotiation
of any necessary documentation in connection therewith.
20.0 NOTICE OF LEASE; ESTOPPEL CERTIFICATES. Landlord and Tenant agree
that this Sublease shall not be recorded. From time to time during the
Lease Term, and without charge, either party shall, within ten (10)
business days of request by the other, certify by written instrument duly
executed and acknowledged, to the requesting party or to any person
reasonably specified by the requesting party, regarding (a) the existence
of any amendments or supplements to this Sublease;
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(b) the validity and force and effect of this Sublease; (c) the existence
of any known default or Event of Default; (d) the existence of any
offsets, counterclaims or defenses; (e) the amount of Rent due and payable
and the date to which Rent has been paid; and (f) any other matter
reasonably requested.
21.0 HOLDING OVER. If Tenant occupies the Premises after the day on which
the Lease Term expires (or the effective date of any earlier termination
as herein provided) without having entered into a new lease thereof with
Landlord, Tenant shall be a tenant-at-sufferance only, subject to all of
the terms and provisions of this Sublease at (x) two (2) times the
then-effective Basic Rent stated in Section 3.0 hereof with respect to the
Initial Term and the First Extended Term; and (y) three (3) times the
then-effective Basic Rent stated in Section 3.0 hereof with respect to the
Second Extended Term, provided that, if Tenant shall hold over for more
than six (6) months after the expiration of either the Initial Term or the
First Extended Term, then Tenant shall thereafter pay Basic Rent at the
rate described in clause (y). Such a holding over, even if with the
consent of Landlord, shall not constitute an extension or renewal of this
Sublease. For purposes of this Section, the failure of Tenant to complete
by the last day of the Lease Term or the effective date of any earlier
termination as herein provided the "close-out" procedures required by the
Nuclear Regulatory Commission or any other federal, state or local
governmental agency having jurisdiction over the use of radioactive
materials within the Premises shall constitute a holding over and subject
Tenant to the provisions of this Section.
22.0 FORCE MAJEURE. Neither Landlord nor Tenant shall be deemed to be in
default hereunder (and the time for performance of any of their respective
obligations hereunder other than the payment of money shall be postponed)
for so long as the performance of such obligation is prevented by strike,
lock-out, act of God, absence of materials or any other matter not
reasonably within the control of the party which must perform the
obligation (collectively, "Force Majeure").
23.0 SIGNS. Tenant shall have the right to install one or more signs on
the Building, identifying its name and business, provided that (i) Tenant
shall obtain the prior written approval of Landlord and Overlandlord as to
the location, size, shape and appearance of such signs, and as to the
plans and specifications relating to such installation; (ii) Tenant shall
install such signs at its sole cost; (iii) Tenant shall, at its sole cost,
obtain all licenses, permits and other governmental consents and approvals
required by applicable Legal Requirements to install such signs; (iv)
Tenant shall cause such installation to be done in a good and workmanlike
manner and in accordance with all applicable Legal Requirements, the
provisions of applicable insurance policies, and the requirements of all
existing restrictions, easements and encumbrances of record affecting the
Land; (v) Tenant shall, at its sole cost, maintain such signs in good
operating condition and in accordance with all applicable Legal
Requirements, the provisions of applicable insurance policies, and the
requirements of all existing restrictions, easements and encumbrances of
record affecting the Land; and (vi) Tenant shall, at its sole cost, remove
such signs on or prior to the date on which the Lease Term expires or this
Sublease is terminated and restore the Premises to the condition in which
it was prior to the installation of such signs.
All work done by or on behalf of Tenant pursuant to this Section 23.0
shall be subject to the requirements set forth in Section 11.0(f) above.
Landlord or Overlandlord may inspect such work at any time or times.
Tenant shall indemnify, defend and hold harmless Landlord and Overlandlord
from and against any and all liability, damage, penalties or judgments and
from and against any claims, actions, proceedings and expenses and costs
in connection therewith,
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including reasonable attorneys' fees, resulting from any work performed by
or on behalf of Tenant pursuant to this Section 23.0. Such signs shall
be at Tenant's sole risk, and neither Landlord nor Overlandlord shall have
any responsibility to maintain any insurance on them or otherwise be
responsible for any damage or destruction thereto.
24.0 CONDITION AND IMPROVEMENT. ▇▇▇▇▇▇ agrees that it is accepting the
Premises in their current AS IS condition, without further representation
by Landlord. Notwithstanding the foregoing, ▇▇▇▇▇▇▇▇ agrees that it shall,
promptly upon full approval and execution hereof by all parties, undertake
to complete the work described on Exhibit D hereto, according to plans and
specifications to be prepared by ▇▇▇▇▇▇▇▇ and approved by ▇▇▇▇▇▇ and, if
required, by Overlandlord. Upon such approval, such work shall be
performed by Landlord at the sole cost and expense of Tenant, and Tenant
shall reimburse Landlord for the actual costs incurred in connection with
the performance of such work, such amount to be paid as Additional Rent
within 15 days after completion of such work and receipt by Tenant of an
invoice reflecting such costs.
25.0 ENTIRE AGREEMENT. No oral statement or prior written matter shall
have any force or effect. This Agreement shall not be modified or
canceled except by writing subscribed to by all parties.
26.0 APPLICABLE LAW, SEVERABILITY AND CONSTRUCTION. This Sublease shall
be governed by and construed in accordance with the laws of Massachusetts
and, if any provisions of this Sublease shall to any extent be invalid,
the remainder of this Sublease, and the application of such provisions in
other circumstances, shall not be affected thereby. The titles of the
several Sections contained herein are for convenience only and shall not
be considered in construing this Sublease. Whenever the singular is used
and when required by the context it shall include the plural, and the
neuter gender shall include the masculine and feminine. The Exhibits
attached to this Sublease are incorporated into this Sublease by
reference. This Sublease may be executed in several counterparts, each of
which shall be an original, but all of which shall constitute one and the
same instrument. The term "Landlord" whenever used herein, shall mean
only the owner at the time of sublessor's interest herein, and no covenant
or agreement of Landlord, express or implied, shall be binding upon any
person except for defaults occurring during such person's period of
ownership nor binding individually upon any officer, director, employee,
fiduciary, shareholder or any beneficiary under any trust. If Tenant is
several persons or a partnership, Tenant's obligations are joint or
partnership and also several. Unless repugnant to the context, "Landlord"
and "Tenant" mean the person or persons, natural or corporate, named above
as Landlord and as ▇▇▇▇▇▇ respectively, and their respective heirs,
executors, administrators, successors and assigns.
27.0 SUCCESSORS AND ASSIGNS. The terms, covenants and conditions of this
Sublease shall be binding upon and inure to the benefit of Landlord and
Tenant and their respective successors and permitted assigns.
28.0 INTENTIONALLY OMITTED.
29.0 AUTHORITY. Contemporaneously with the signing of this Sublease,
Tenant shall furnish to Landlord a certified copy of the resolution of the
Board of Directors of Tenant authorizing Tenant to enter into this
Sublease.
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WITNESS the execution hereof in multiple counterparts under seal the
day and year first above written.
Landlord: IMMUNOGEN, INC.
By: /S/▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Hereunto duly authorized
Date: August 31, 1995
Tenant: ASTRA RESEARCH CENTER BOSTON, INC.
By: /S/▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
Hereunto duly authorized
Date: August 31, 1995
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