Sublease Agreement, dated as of December 6, 2021, by and between the Registrant and Hi Marley, Inc
This Sublease (“Sublease”) is made as of December 6, 2021, by and between Albireo Pharma, Inc. a Delaware corporation having an address of 10 Post Office Square, Boston, Massachusetts 02109 (“Sublandlord”), and Hi Marley, Inc., a Delaware corporation having an address of 77 Franklin St 9th Floor, Boston, Massachusetts 02110 (“Subtenant”).
WHEREAS, reference is made to that certain Office Lease Agreement dated as of February 7, 2017 (the “Original Lease”), as amended by that certain First Amendment to Lease dated as of March 28, 2019 (the “First Amendment”), and as further amended by that certain Second Amendment to Lease dated as of May 4, 2020 (the “Second Amendment”), and as further amended by that certain Third Amendment to Lease dated as of June 30, 2021 (the “Third Amendment,” together with the Original Lease, First Amendment and Second Amendment, the “Overlease”, a copy of which is attached hereto as Exhibit A) by and between NS Boston III PO Owner LLC, a Delaware limited liability company (“Overlandlord” and successor-in-interest to POSIG Investors, LLC, who in turn is successor-in-interest to SHIGO 10 PO Owner LLC) as lessor thereunder and Sublandlord as lessee thereunder, pursuant to which Overlandlord leased to Sublandlord certain premises (the “Premises) consisting of approximately 18,224 rentable square feet located on the tenth (10th) floor in the building (the “Building”) known and numbered as 10 Post Office Square, Boston, Massachusetts; and
WHEREAS, Subtenant desires to sublease from Sublandlord and Sublandlord desires to sublease to Subtenant approximately 14,734 rentable square feet of the Premises as depicted on Exhibit B attached hereto (hereinafter referred to as the “Subleased Premises”) subject to and in accordance with the terms and conditions of this Sublease.
NOW, THEREFORE, in consideration of the mutual covenants herein contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
Subtenant agrees that from time to time it will deliver to Sublandlord or Sublandlord’s designee within ten (10) days of the date of Sublandlord’s request, a statement, in writing, certifying (i) that this Sublease is unmodified and in full force and effect, if this is so, or if there have been modifications that the Sublease, as modified, is in full force and effect; (ii) the dates to which Rent and other charges have been paid; (iii) that Sublandlord is not in default under any provisions of this Sublease or, if in default, the nature thereof in detail; and (iv) such other true statements as Sublandlord may reasonably require.
(a)Beginning on the Commencement Date and throughout the Term hereof, Subtenant shall pay to Sublandlord monthly fixed rent (the “Fixed Rent”) in accordance with the schedule set forth below:
Months of Term
Rate Per Square Foot, Per Annum
4/1/2022 – 3/31/2023
4/1/2023 – 3/31/2024
4/1/2024 – 3/31/2025
4/1/2025 – 10/31/2026
Notwithstanding anything to the contrary in this Sublease, provided Subtenant is not in default hereunder, Fixed Rent shall be abated for the month of April 2022. In no event shall the abatement of Fixed Rent for April 2022 be deemed to reduce or eliminate Subtenant’s obligation to pay Additional Rent or any other amounts due hereunder other than Fixed Rent.
Each monthly installment of Fixed Rent shall be payable on or before the first (1st) day of the calendar month during the Term, without notice or demand and without abatement, set-off or deduction, and shall be pro-rated on a per diem basis in the case of any partial months during the Term, including, without limitation, any partial month between the Commencement Date and the first day of the first full calendar month following the Commencement Date. Notwithstanding the foregoing, if rent abates under the Overlease as to the Subleased Premises, Rent shall correspondingly abate under this Sublease.
(b)In addition to the Fixed Rent due hereunder, (i) commencing July 1, 2023, Subtenant shall also pay to Sublandlord “Subtenant’s Share” (as hereinafter defined) of Tax Increases paid by Sublandlord pursuant to the Overlease, in excess of the Tax Increases paid by Sublandlord pursuant to the Overlease for the 2022 Tax Year (i.e., July 1, 2022 – June 30, 2023) (the “Base Tax Year”) and (ii) commencing January 1, 2023, Subtenant shall pay to Sublandlord Subtenant’s Share of Expense Increases paid by Sublandlord pursuant to the Overlease in excess of the Expense Increases paid by Sublandlord during the calendar year 2022 (the “Base Expense Year”) (the amounts payable under the foregoing clauses (i) and (ii) shall be sometimes collectively referred to herein as the “Sublease Direct Expenses”). Subtenant shall pay the estimated amount of such Sublease Direct Expenses simultaneously with the monthly payment of Fixed Rent in accordance with the terms of the Overlease. On an annual basis, Sublandlord shall provide Subtenant with a statement of all estimated and actual Sublease Direct Expenses promptly following Sublandlord’s receipt thereof from Overlandlord. If Subtenant has made estimated payments of Sublease Direct Expenses in excess of the actual amount payable by Sublandlord under the Overlease attributable to the Subleased Premises, Sublandlord shall credit Subtenant with any overpayment against the next Fixed Rent otherwise due or refund by check within thirty (30) days of the Expiration Date or date of termination if the Sublease is terminated earlier than the Expiration Date. If the actual amount of Sublease Direct Expenses payable by Sublandlord pursuant to the Overlease, as equitably allocated to the Subleased Premises exceeds the estimated Sublease Direct Expenses paid by Subtenant for such year, Subtenant shall pay the difference to Sublandlord within fifteen (15) days after receipt of the statement and all supporting documentation and such obligation shall survive the expiration or earlier termination of this Sublease. Any failure by Sublandlord to deliver any estimate or statement of Sublease Direct Expenses required under this Sublease shall not operate as a waiver of Sublandlord’s right to collect all or any portion of Sublease Direct Expenses due hereunder. Notwithstanding the foregoing, Sublandlord shall use commercially reasonable efforts to deliver any such estimates
or statements of Sublease Direct Expenses promptly upon receipt of the corresponding information from Overlandlord. Upon Subtenant’s request, Sublandlord shall exercise its audit rights under Section 6.4 of the Overlease at Subtenant’s direction and expense.
“Subtenant’s Share” shall mean a fraction, the numerator of which shall mean the rentable square footage of the Subleased Premises, and the denominator of which shall mean the rentable square footage of the Premises. As of the date of this Sublease, Subtenant’s Share is 80.85%. From and after the expiration of the Overlease as to the “Expansion Premises”, as defined in the Third Amendment, Subtenant’s Share will be 100%.
(c)In addition to the Fixed Rent and Sublease Direct Expenses due hereunder, Subtenant shall pay for the cost of all utility services consumed in the Subleased Premises during the Term to the extent not included in Sublease Direct Expenses. Such payments shall be made directly to the utility company or, if billed to Sublandlord, then reimbursed to Sublandlord within fifteen (15) days following receipt by Subtenant of Sublandlord’s billing therefore. Such billing shall include sub-meter readings and calculations of the amount due if available. Subtenant shall also assume and perform Sublandlord’s maintenance obligations under Section 7.2 of the Overlease, as incorporated herein, for the Subleased Premises, including, without limitation, the obligation to maintain any heating, ventilating and air-conditioning maintenance contract satisfactory to Overlandlord in the Subleased Premises.
(d)In addition to the Fixed Rent, Sublease Direct Expenses, cost of utilities to the Subleased Premises during the Term, and any other sums which Subtenant may be obligated to pay pursuant to any other provision of this Sublease, Subtenant agrees to pay to Sublandlord all Subtenant Surcharges (as hereinafter defined) as additional rent hereunder as and when such sums are due and payable by Sublandlord under the Overlease, or as otherwise hereinafter provided. As used herein, the term “Subtenant Surcharges” shall mean any and all amounts which become due and payable by Sublandlord to the Overlandlord under the Overlease on account of any additional service requested by Subtenant and provided to the Subleased Premises by Overlandlord under the Overlease or any additional rent or charges under the Overlease payable by Sublandlord to the extent due to Subtenant’s use or occupancy of the Subleased Premises during the Term other than those charges or interest that are due and payable as a result of Sublandlord’s failure to perform as required under the Overlease. The Fixed Rent, the Sublease Direct Expenses, the cost of utilities to the Subleased Premises during the Term, Subtenant Surcharges and any other sums which Subtenant may be obligated to pay pursuant to any other provision of this Sublease are sometimes referred to herein as the “Rent” payable by Subtenant pursuant to this Sublease. Sublessee shall be entitled to all credits, if any, given by Overlandlord to Sublandlord for Sublandlord’s overpayment of such amounts, and shall not be required to pay any gross receipts tax on Rent payable to Sublandlord under this Sublease, if any.
(e)All amounts payable pursuant to this Sublease shall be paid by Subtenant to Sublandlord’s Administrator at the address forth below or at such other place as Sublandlord may hereafter designate from time to time in writing, in lawful money of the United States of America, by a good unendorsed check or, at Sublandlord’s option, by wire transfer pursuant to wire instructions provided by Sublandlord or Sublandlord’s Administrator from time to time, as
and when the same become due and payable, without demand therefor and without any deduction, set-off or abatement whatsoever, except as provided herein. Any other amounts of additional rents and other charges herein reserved and payable shall be paid by Subtenant in the manner and to the persons set forth in the statement from Sublandlord describing the amounts due. All costs, charges and expenses which Subtenant assumes, agrees or is obligated to pay to Sublandlord pursuant to this Sublease shall be additional rent and in the event of nonpayment thereof Sublandlord shall have all the rights and remedies with respect thereto as are herein provided for in case of nonpayment of the Fixed Rent reserved hereunder. Any inquiries, communications or notices concerning the Fixed Rent or additional rent hereunder shall be sent to, and may sent from, Sublandlord’s Administrator: Tyson Kamikawa, Email: ***@***. Fixed Rent and additional rent shall be paid via ACH Transfer as follows:
Bank Name:Silicon Valley Bank
Account Name:Albireo Pharma, Inc.
(f)Subtenant shall, upon receipt of Overlandlord’s consent hereto, pay to Sublandlord the sum of Sixty-Eight Thousand Seven Hundred Fifty-Eight and 67/100 Dollars ($68,758.67) to be applied to the first full monthly installment of Fixed Rent due hereunder.
Subtenant will, throughout the Term and at its sole cost, keep and maintain the Subleased Premises and all fixtures and equipment located therein in the condition required pursuant to the Overlease, as incorporated herein. All repairs and replacements required of Subtenant in connection herewith shall be of a quality and class at least equal to the minimum building standards established by Overlandlord and shall be done in a good and workmanlike manner in compliance with all applicable laws and the terms and conditions of this Sublease. If Subtenant fails to maintain the Subleased Premises in compliance with the terms hereof, Sublandlord shall have the right to do such acts and expend such funds as are reasonably required and Subtenant shall reimburse Sublandlord for the cost thereof as additional rent upon demand.
Sublandlord shall not be liable in any event for incidental or consequential damages to Subtenant for any reason, including, without limitation, any default by Sublandlord hereunder, whether or not Sublandlord is notified that such damages may occur. The term “Sublandlord”, as used in this Sublease, so far as covenants or obligations to be performed by Sublandlord are concerned, is limited to mean and includes only the owner or owners at the time in question of the Sublandlord’s interest in the Subleased Premises (leasehold or otherwise), and in the event of any transfer or transfers of title to the Sublandlord’s interest in the Subleased Premises, the Sublandlord herein named (and in case of any subsequent transfers or conveyances, the then grantor) shall be automatically freed and relieved from and after the date of such transfer or conveyance of all liability as respects the performance of any covenants or obligations on the part of the Sublandlord contained in this Sublease thereafter to be performed, it being intended that the covenants and obligations contained in this Sublease on the part of Sublandlord shall, subject as aforesaid, be binding on the Sublandlord, its successors and assigns, only during and in respect of their respective successive periods of tenancy or ownership of the Subleased Premises. Subtenant, its successors and assigns, agrees it shall not assert nor seek to enforce any claim for breach of this Sublease against any of Sublandlord’s assets other than Sublandlord’s interest in the Leased Premises and in the rents, issues and profits thereof, and Subtenant agrees
to look solely to such interest for the satisfaction of any liability of or claim against Sublandlord under this Sublease, it being specifically agreed that in no event whatsoever shall Sublandlord or any beneficiary of any trust of which Sublandlord is a trustee or any of Sublandlord’s officers, directors, partners, shareholders, agents, attorneys and employees ever be personally liable for any such liability.
Notwithstanding anything to the contrary herein, Sublandlord shall fully perform all of its obligations under the Overlease to the extent Subtenant has not expressly agreed to perform such obligations under this Sublease and shall not take any actions that would unreasonably interfere with Subtenant’s use of the Subleased Premises. Sublandlord shall not terminate or take any actions giving rise to a termination right under the Overlease, amend or waive any provisions under the Overlease or make any alterations, exercise any right or remedy or give any consent or approval under the Overlease that could adversely affect Subtenant’s use or occupancy of the Subleased Premises or Subtenant’s rights or obligations under this Sublease without, in each instance, Subtenant’s prior written consent. Sublandlord, with respect to the obligations of Overlandlord under the Overlease, shall use Subtenant’s diligent good faith efforts to cause Overlandlord to perform such obligations for the benefit of Subtenant. Such diligent good faith efforts shall include, without limitation, upon Subtenant’s written request, immediately notifying Overlandlord of its nonperformance under the Overlease, and requesting that Overlandlord perform its obligations under the Overlease.
Upon the occurrence of an Event of Default by Subtenant, Sublandlord may, at its option, with or without notice or demand of any kind to Subtenant or any other person, exercise any one or more of the following described remedies, in addition to all other rights and remedies provided at law, in equity or elsewhere herein, and such rights and remedies shall be cumulative and none shall exclude any other right allowed by law:
(i)Sublandlord may terminate this Sublease, repossess and re-let the Subleased Premises, in which case Sublandlord shall be entitled to recover as damages (in addition to any other sums or damages for which Subtenant may be liable to Sublandlord) a lump sum equal to the amount of Fixed Rent remaining to be paid by Subtenant for the balance of the Term.
(ii)Sublandlord may, without terminating the Sublease, terminate Subtenant’s right of possession, repossess the Subleased Premises including, without limitation, removing all or any part of Subtenant’s personal property in the Subleased Premises and to place such personal property in storage or a public warehouse at the expense and risk of Subtenant, and relet the same for the account of Subtenant for such rent and upon such terms as shall be satisfactory to Sublandlord. For the purpose of such reletting, Sublandlord is authorized to decorate, repair, remodel or alter the Subleased Premises. Subtenant shall pay to Sublandlord as damages a sum equal to all Rent under this Sublease for the balance of the Term unless and until the Subleased Premises are relet. If the Subleased Premises are relet, Subtenant shall be responsible for payment upon demand to Sublandlord of any deficiency between the rent as relet and the rent for the balance of this Sublease, all costs and expenses of reletting, and all reasonable decoration, repairs, remodeling, alterations, additions and collection of the rent accruing there from. Subtenant shall not be entitled to any rents received by Sublandlord in excess of the rent provided for in this Sublease. No re-entry or taking possession of the Subleased Premises by Sublandlord shall be construed as an election to terminate this Sublease unless a written notice of such intention be given to Subtenant or unless the termination thereof be decreed by a court of competent jurisdiction.
(a)If intended for Sublandlord, to:
Albireo Pharma, Inc.
53 State Street, 19th Floor
Boston, MA 02109
With a copy to:Mintz Levin Cohn Ferris Glovsky and Popeo, P.C.
One Financial Center
Boston, MA 02111
Attn: Geoffrey H. Smith, Esq.
(b)If intended for Subtenant, to:
Prior to the Commencement Date:
Hi Marley, Inc.
77 Franklin Street, 9th Floor,
Boston, Massachusetts 02110
Attn: General Counsel
After the Commencement Date:
Hi Marley, Inc.
10 Post Office Square, 10th Floor
Boston, MA 02109
Attn: General Counsel
All such notices shall be deemed to have been served on the date of actual receipt (in the case of hand delivery), or one (1) business day after such notice shall have been deposited with a reputable overnight courier, or three (3) business days after such notice shall have been deposited in the United States mails within the continental United States (in the case of mailing by registered or certified mail as aforesaid).
In the event of Subtenant’s failure to remove any of Subtenant’s property from the Subleased Premises as required hereunder, Sublandlord and Overlandlord are hereby authorized, without liability to Subtenant for loss or damage thereto, and at the sole risk of Subtenant, to remove and store any of the property at Subtenant’s expense, or to retain same under Sublandlord’s or Overlandlord’s control or, upon ten (10) days prior written notice to Subtenant (and Subtenant’s failure to pick up such property within such ten (10) day period), to sell at public or private sale, and to apply the net proceeds of such sale to the payment of any sum due hereunder. Without limiting the foregoing or any other provisions herein, if Subtenant fails to surrender the Subleased Premises to Sublandlord upon early termination or expiration of this Sublease as herein required, Subtenant shall pay to Sublandlord on account of use and occupancy of the Subleased Premises for each month or portion thereof during which Subtenant (or anyone claiming by, through or under Subtenant) holds over in the Subleased Premises an amount equal to one hundred fifty percent (150%) of the then current Fixed Rent payable hereunder, or one hundred fifty percent (150%) of the fair market rental for the Subleased Premises, for the time Tenant remains in possession, plus, in each case all Additional Rent and other sums payable hereunder, and Subtenant shall indemnify Sublandlord for all loss, cost, damage, expense or injury resulting therefrom, including and increased rental or other damages suffered by Sublandlord as a result of such holding over.
[signature page follows]
IN WITNESS WHEREOF, Sublandlord and Subtenant herein have duly executed this instrument on the day and year first above written.
SUBLANDLORD:ALBIREO PHARMA, INC.,
a Delaware corporation
By: /s/ Ronald Cooper
Name: Ronald Cooper
Title: President and Chief Executive Officer
SUBTENANT:Hi Marley, Inc.,
a Delaware corporation
By: /s/ Neil A. Murphy
Name: Neil A. Murphy
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