Assignment of Sublease and Sub-Sublease, dated December 13, 2019, between Casebia Therapeutics LLC and CRISPR Therapeutics, Inc

EX-10.32 9 crsp-ex1032_254.htm EX-10.32 crsp-ex1032_254.htm

Exhibit 10.32

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ASSIGNMENT OF SUBLEASE AND SUB-SUBLEASE

 

 

This ASSIGNMENT OF SUBLEASE AND SUB-SUBLEASE (this “Assignment”) is made as of December 13, 2019 by and between Casebia Therapeutics LLC (“Assignor”) and CRISPR Therapeutics, Inc. (“Assignee”).

WITNESSETH

 

A.WHEREAS, Pfizer Inc., as sublandlord, and Assignor, as subtenant, are parties to that certain Sublease dated August 1, 2016 (the “Sublease”) for premises in the building (the “Building”) located at 610 Main Street, Cambridge, Massachusetts, upon and subject to the terms and conditions set forth in the Sublease;

B.WHEREAS, [***], as sub-subtenant, and Assignor, as sub-sublandlord, are parties to that certain Agreement of Sub-Sublease dated May 1, 2017 (the “Sub-Sublease”), whereby Assignor subleases certain premises to [***] in the Building, upon and subject to the terms and conditions set forth in the Sub-Sublease;

B.WHEREAS, Assignor desires to assign to Assignee all of its right, title and interest in, to and under the Sublease, as subtenant thereunder, and the Sub-Sublease, as sub-sublandlord thereunder;

C.WHEREAS, Assignee desires to assume all of Assignor’s obligations under the Sublease and Sub-Sublease which accrue from and after the Effective Date (as hereinafter defined below), upon the terms and conditions hereinafter set forth.

NOW THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth, and other valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto hereby agree as follows:

Assignor hereby assigns and transfers to Assignee, effective as of the Effective Date (as hereinafter defined), all of Assignor’s right, title and interest in, to and under the Sublease and the Sub-Sublease, together with all of the rights, privileges and appurtenances with respect to the subleasehold estates created thereby, upon all of the terms and conditions herein set forth, to have and to hold the same unto Assignee, for the term of the Sublease and Sub-Sublease, as applicable, and any renewals and extensions thereof, subject to all of the terms, covenants and conditions of the Sublease and Sub-Sublease, as applicable.  Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Sublease.

Assignee hereby accepts the foregoing assignment, effective as of the Effective Date (as hereinafter defined) and expressly assumes and agrees to fully and punctually pay, perform and observe all of the terms, covenants, conditions and obligations of (i) the subtenant under the Sublease and (ii) the sub-sublandlord under the Sub-Sublease required to be paid, performed and observed thereunder, as applicable, and which arise or accrue from and after the Effective Date.  For all purposes of this Assignment, the “Effective Date” shall mean December 13, 2019.

 

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Except as provided in this Assignment, none of the provisions, terms and conditions of the Sublease or the Sub-Sublease are affected by this Assignment and all provisions, terms and conditions of the Sublease and Sub-Sublease remain in full force and effect.

Assignee shall indemnify and hold Assignor harmless from and against any and all demands, claims, actions, losses, damages, liabilities, litigation and costs and expenses thereof including, without limitation reasonable attorneys’ fees and disbursements of any kind and nature whatsoever (collectively, “Assignor Claims”), which may be imposed on, asserted against or otherwise incurred by Assignor by or on behalf of any person or entity whatsoever due to or arising from the failure or alleged failure of Assignee, to undertake, perform, pay, discharge or observe any of the covenants, terms and conditions of the Sublease or the Sub-Sublease from and after the Effective Date.  If any action or proceeding is brought against Assignor by reason of any Assignor Claim, Assignee, upon notice from Assignor, shall defend such action or proceeding, and Assignee shall pay all expenses in respect of defending against such action or proceeding.

Assignor shall indemnify and hold Assignee harmless from and against any and all demands, claims, actions, losses, damages, liabilities, litigation and costs and expenses thereof including, without limitation, reasonable attorneys’ fees and disbursements of any kind and nature whatsoever (collectively, “Assignee Claims”), which may be imposed on, asserted against or otherwise incurred by Assignee by or on behalf of any person or entity whatsoever due to or arising from the failure or alleged failure of Assignor to undertake, perform, pay, discharge or observe any of the covenants, terms and conditions of the Sublease or the Sub-Sublease prior to the Effective Date.  If any action or proceeding is brought against Assignee by reason of any Assignee Claim, Assignor, upon notice from Assignee, shall defend such action or proceeding, and Assignor shall pay all expenses in respect of defending against such action or proceeding.

This Assignment may not be amended, modified or terminated except by an instrument, in writing, executed by the parties hereto.

This Assignment may be executed in several counterparts, and all so executed shall constitute one Assignment, binding on each of the parties hereto, notwithstanding that each of the parties are not signatories to the original or the same counterpart.

This Assignment shall be binding upon and shall inure to the benefit of the parties hereto and their respective successor and assigns.  In the event of any conflict between the terms of the Sublease or the Sub-Sublease and the terms of this Assignment, the terms of this Assignment shall prevail.

This Assignment shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts.

[signature pages follow]

 

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IN WITNESS WHEREOF, the parties hereto have duly executed this Assignment as of the day and year first above written.

 

 

 

 

[Signature Page to Assignment of Sublease]

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[Signature Page to Assignment of Sublease]

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EXHIBIT A

 

COPY OF SUBLEASE AND SUB-SUBLEASE

 

(see attached)

 

 

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CONSENT TO SUBLEASE

 

THIS CONSENT TO SUBLEASE (this "Consent"), dated as of August 26, 2016, is entered into by and among MIT 650 MAIN STREET LLC, a Massachusetts limited liability company ("Prime Landlord "), PFIZER INC., a Delaware corporation ("Sublandlord") and CASEBIA THERAPEUTICS LLC, a Delaware limited liability company ("Subtenant").

W I T N E S S E T H

WHEREAS, Prime Landlord, as landlord, and Sublandlord, as tenant, executed that certain lease dated July 23, 2014, as amended by that certain First Amendment to Lease dated as of April 15, 2015, as further amended by that certain Second Amendment to Lease dated as of July 22, 2015 (the “Second Amendment”), as affected by that certain Subordination Agreement dated July 23, 2014 and as amended by that certain Third Amendment to Lease dated as of June 30, 2016 (collectively, the "Lease") with respect to certain premises containing approximately 270,056 square feet of space on the B3 level, the 2nd, 3rd, 4th, 5th, 6th and 7th floors, and the 2-level skywalk (as more particularly described in the Lease, the “Premises”) of that certain building located at 610 Main Street North, Cambridge, Massachusetts;

WHEREAS, Sublandlord wishes to sublease approximately 32,688 rentable square feet of the Premises (consisting of all rentable areas on the 5th floor of the Building) to Subtenant (the “Subleased Premises”) on the terms and conditions set forth in that certain sublease (the "Sublease") dated August 1, 2016, by and between Sublandlord and Subtenant, a true, complete and correct copy of which Sublease is attached hereto as Exhibit A;

WHEREAS, pursuant to the terms of the Lease, Sublandlord must obtain Prime Landlord’s prior written consent to the Sublease; and

WHEREAS, Prime Landlord is willing to consent to the Sublease on the terms and conditions hereinafter set forth.

NOW, THEREFORE, in consideration of the covenants herein reserved and contained, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged and agreed, Prime Landlord, Sublandlord and Subtenant hereby agree as follows:

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Any party may change its address for notice by giving notice in the manner hereinabove provided. Notices shall be deemed effective upon delivery or refusal of delivery thereof.

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[SIGNATURES ON FOLLOWING PAGE]

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EXECUTED as an instrument under seal as of the date first written above.

PRIME LANDLORD: MIT 650 MAIN STREET LLC

By: MIT Cambridge Real Estate LLC, its manager

 

 

 

 

 

 

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EXHIBIT A

 

SUBLEASE

 

 

 

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Execution Copy

SUBLEASE  AGREEMENT

THIS SUBLEASE AGREEMENT (this "Sublease") is made as of the 1st day of August, 2016, by and between PFIZER INC., a Delaware corporation having an office at 235 East 42nd Street, New York, NY 10017 ("Sublandlord"), and Casebia Therapeutics LLC, a Delaware limited liability company, having an office address of c/o Bayer Aktiengesellschaft, Kaiser­ Wilhelm-Allee, 51368 Leverkusen, Germany ("Subtenant").

WITNESSETH:

WHEREAS, by that certain Lease dated July 23, 2014, as amended by that certain First Amendment to Lease, dated as of April 15, 2015, as further amended by that certain Second Amendment to Lease (the "Second Amendment") dated as of July 22, 2015, as further amended by that certain Third amendment to Lease dated as of June 30, 2016 (the "Third Amendment"), and as affected by that certain Subordination Agreement dated July 23, 2014 (collectively, the "Overlease"), MIT 650 MAIN STREET LLC, a Massachusetts limited liability company (the "Overlandlord"), leased to Sublandlord, as Tenant, approximately 270,056 square feet of rentable area on the B3 level, the 2nd, 3rd, 4th, 5th, 6th and 7th floors, and the 2-level skywalk (the "Main Premises") of the building located at 610 Main Street North, Cambridge, Massachusetts (the "Building"), at the rent and upon and subject to the terms and conditions set forth in the Overlease; and

WHEREAS, Subtenant desires to sublet from Sublandlord all of the Main Premises located on the 5th floor of the Building, subject to the terms and conditions of this Sublease.

NOW, THEREFORE, the parties hereto, for themselves, their permitted successors and assigns, mutually  covenant and agree as follows:

1.Defined Terms. Terms with initial capital letters not defined in this Sublease shall have the meanings set forth in the Overlease.

2.Subleased Premises. (a) Sublandlord does hereby sublease to Subtenant, and Subtenant does hereby sublease from Sublandlord, for the Term (as defined below) and upon the conditions hereinafter provided, the entirety of the fifth floor of the Main Premises, deemed to contain 32,688 square feet of rentable area, as more particularly shown on Schedule 2(a),    attached  hereto (the "Subleased Premises").

(b)Subtenant shall have the non-exclusive right to use in common with  Sublandlord and any other future subtenants, as the case may be, those portions of the Main Premises and, subject to the terms of the Overlease, Common Areas under the Overlease, that are provided, from time to time, and subject to the terms of the Overlease, for use in common by Sublandlord, Subtenant  and such other subtenants of the Main Premises (such areas,   together with such other portions of the Main Premises now or hereafter designated by Sublandlord, in its discretion, including certain areas designated for the exclusive use of certain subtenants, or to be shared by Sublandlord and certain subtenants, are collectively referred to herein as the

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"Common Areas"). The Common Areas shall consist of the areas located within the Main Premises designated as such by Sublandlord, and shall in all events include the common lobby, loading docks, stairways, Pathways designated by Sublandlord (but not to exceed Subtenant's Share (as defined below) of such Pathways), freight and three (3) passenger elevators servicing the Main Premises (each as shown on Schedule 2(b)), subject to Sublandlord's right to make changes to the Common Areas; provided, however that such changes do not unreasonably interfere with Subtenant's use of and access to the Subleased Premises or appurtenant rights hereunder in more than a de minimis manner.  The manner in which the Common Areas are maintained and operated shall be at the sole discretion of Sublandlord and the use thereof shall be subject to such rules, regulations and restrictions as Sublandlord may reasonably make from time to time, provided that (a) Subtenant is provided with prior written notice of such rules and regulations, (b) they are not enforced in a discriminatory manner against Subtenant, and (c) to the extent such rules and regulations conflict with the terms of this Sublease, the terms of this Sublease shall govern (the "Rules and Regulations"). Sublandlord reserves the exclusive use of (a) the video wall in the common lobby of the Building, (b) the reception and security desk in the common lobby of the Building and (c) two (2) passenger elevators and the main lobby exclusively servicing the remainder of the Main Premises. Sublandlord reserves the right to close temporarily, make alterations or additions to, or change the location of elements of the remainder of the Main Premises and the Common Areas and may temporarily close the Main Premises in the event of casualty or other matters described in Section 27 of this Sublease, or if Sublandlord reasonably deems it necessary in order to prevent damage or injury to person or property provided, however, the Sublandlord shall use reasonable efforts to give Subtenant as much advance notice of such alteration, addition, change or closure as is practicable.

3.Term; Extension Term. (a) The term of this Sublease (the "Term'') shall commence on the date (the "Commencement Date") that is the last to occur of (i) the date this Sublease is fully executed by Sublandlord and Subtenant, (ii) the date Overlandlord consents to this Sublease in compliance with and pursuant to Section 25 hereof, or (iii) the earlier to occur of April 1, 2017 or the date Sublandlord delivers possession of the Subleased Premises to Subtenant with the Subleased Premises Work substantially completed in accordance with the Work Letter attached as Schedule 4(b) and shall end at 11:59 P.M. (local time at the Building) on the date (the "Expiration Date") that is the last day of the seventh (7th) Sublease Year (as defined below), or on such earlier date upon which said Term may expire or be terminated pursuant to any of the conditions or limitations or other provisions of this Sublease or pursuant to law.

(b)It is presently anticipated that the Subleased Premises will be delivered to Subtenant in accordance with Section 4(b) on or about May 10, 2017 (the "Estimated Delivery Date"). Notwithstanding the foregoing, if Sublandlord does not deliver possession of the Subleased Premises by the Estimated Delivery Date, Sublandlord shall not have any liability whatsoever, and this Sublease shall not be rendered void or voidable as a result thereof; provided, however, that Subtenant shall have the remedies expressly set forth in the Work Letter attached as Schedule 4(b).

 

 

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(c)Promptly after the Commencement Date is determined, Sublandlord and Subtenant shall execute an acknowledgement thereof in the form attached hereto as Schedule 3(c).

 

(d)Subject to the rights of Sublandlord as described in subparagraph (g) below, provided (i) Subtenant has not entered into subleases, licenses relating to use or occupancy of space or other occupancy agreements (other than Permitted Transfers, as defined in Section 19(a) below) that are then effective for more than forty-nine percent (49%) of the Subleased Premises in the aggregate, and (ii) there is no Event of Default (1) as of the date of the Extension Notice, and (2) at the commencement of the Extension Term, Subtenant shall have the option to extend the Term for one (1) additional term of five (5) years (the "Extension Term"), commencing as of the expiration of the Term. Subtenant must exercise such option to extend by giving Sublandlord written notice (the "Extension Notice") on or before the date that is twelve (12) months prior to the expiration of the Term, time being of the essence. Upon the timely giving of such notice, the Term shall be deemed extended upon all of the terms and conditions of this Sublease, except that Base Rent during the Extension Term shall be calculated in accordance with subparagraph (e) below, Sublandlord shall have no obligation to construct or renovate or to pay for any improvements to the Subleased Premises in connection with the Extension Term, and Subtenant shall have no further option to extend the Term. If Subtenant fails to give timely notice, as aforesaid, Subtenant shall have no further right to extend the Term.  Notwithstanding the fact that Subtenant's proper and timely exercise of such option to extend the Term shall be self­ executing, the parties shall promptly execute an amendment hereto reflecting such Extension Term after Subtenant exercises such option.  The execution of such sublease amendment shall not be deemed to waive any of the conditions to Subtenant's exercise of its rights under this Section 3(d).

(e)The Base Rent during the Extension Term (the "Extension Term Base Rent") shall be determined in accordance with the process described hereafter. During the first Sublease Year of the Extension Term, Extension Term Base Rent shall be the greater of (i) the fair market rental value of the Subleased Premises as of the commencement of the Extension Term as determined in accordance with the process described below, for renewals of combination laboratory and office space in the East Cambridge/Kendall Square area of equivalent quality, size, utility and location, with the length of the Extension Term, the credit standing of Subtenant and all other relevant factors to be taken into account (the "FMV"), or (ii) Base Rent for the last Lease Year of the Term, increased by 3% (the "Adjusted Extension Term Rent"). Extension Term Base Rent shall be increased on each anniversary of the commencement of the Extension Term by 3% (on a cumulative basis). Within thirty (30) days after receipt of the Extension Notice (but in no event earlier than the date that is eleven (11) months prior to the commencement of the Extension Term), Sublandlord shall deliver to Subtenant a written notice of its good faith determination of the FMV for the Extension Term, if Sublandlord determines that the FMV is greater than the Adjusted Extension Term Rent. (If Sublandlord determines that the Adjusted Extension Term Rent exceeds the FMV, Sublandlord's notice to Subtenant shall so state and the Extension Term Base Rent shall be equal to the Adjusted Extension Term Rent.) Subtenant shall, within thirty (30) days after receipt of such notice, notify Sublandlord in writing ("Subtenant's Response Notice") whether

 

 

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(x) Subtenant accepts Sublandlord's determination of the FMV, (y) Subtenant rejects Sublandlord's determination of FMV and elects to submit the matter to arbitration, or (z) Subtenant rescinds its Extension Notice. If Subtenant fails timely to deliver Subtenant's Response Notice, Subtenant shall be deemed to have rescinded its Extension Notice. If Subtenant's Response Notice is rescinded or if Subtenant is deemed to have rescinded its Extension Notice, then the provisions of this Section 3(d) shall terminate and Subtenant shall have no further rights hereunder.

(f)If and only if Subtenant's Response Notice is timely delivered to Sublandlord and indicates both that Subtenant rejects Sublandlord's determination of the FMV and desires to submit the matter to arbitration, then the FMV shall be determined in accordance with the following procedure:

(i)Each of Subtenant and Sublandlord shall choose an MAI certified commercial real estate appraiser having at least ten (10) years' experience in the appraisal of office and research laboratory buildings in the East Cambridge/Kendall Square area;

(ii)The appraisers selected in accordance with "(i)" above shall select a third appraiser who is an MAI certified appraiser with at least ten (10) years' experience in the appraisal of office and research laboratory buildings in the East Cambridge/Kendall Square area;

(iii)The selections shall be completed no later than twenty-one (21) days after Subtenant's notice disputing Sublandlord's FMV. If any selection is not made within the 21-day time period, either party may petition the Boston office of the American Arbitration Association to make the selection;

(iv)Within thirty (30) days after their appointment, the appraisers shall determine the FMV for the Subleased Premises for the Extension Term, and shall notify Subtenant and Sublandlord of such determination within seven (7) days, which determination shall be final and binding upon Subtenant and Sublandlord. If the appraisers are unable to agree upon the FMV, the FMV will be deemed to be the average of the FMVs proposed by the appraisers, except that (i) if the lowest proposed FMV is less than 90% of the second to lowest proposed FMV, the lowest proposed FMV will automatically be deemed to be 90% of the second to lowest proposed FMV and (ii) if the highest proposed FMV is greater than 110% of the second to highest proposed FMV, the highest proposed FMV will automatically be deemed to be 110% of the second to highest proposed FMV.

(v)Sublandlord and Subtenant shall each pay the cost of their own appraisers and one-half (1/2) of the third appraiser.

 

 

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(g)Notwithstanding the foregoing, Sublandlord shall have the right to reject Subtenant's exercise of its extension option by providing written notice of such rejection to Subtenant no later than eleven (11) months prior to the commencement of the Extension Term, if Sublandlord desires to utilize the Subleased Premises for its own purposes (including without limitation the use of the Subleased Premises by an affiliate of Sublandlord or an entity in which Sublandlord has an ownership, investment, or shared research interest). In the event that Sublandlord rejects Subtenant's exercise of its extension option, the Term shall expire on the originally scheduled Termination Date pursuant to the provisions of this Sublease and Subtenant's Extension Notice shall be of no force and effect.

4.Condition of Subleased Premises.

(a)Sublandlord hereby subleases to Subtenant, and Subtenant hereby hires from Sublandlord, the Subleased Premises, upon and subject to the terms and conditions herein set forth, in its "as is," "where is," "with all faults" condition existing on the date hereof, subject to the completion of Landlord's Base Building Work (as it may be affected by the Subleased Premises Work) and the Subleased Premises Work (as defined in Section 4(b) below) as provided herein but without requiring any other Alterations (as defined below), improvements, repairs or decorations to be made by Sublandlord or at Sublandlord's expense, either at the time possession is given to Subtenant or during the entire Term of this Sublease, or any extension thereof, except for the performance of Subleased Premises Work as provided in the Work Letter referenced in Section 4(b), below, and without any requirement or obligation of Sublandlord to reimburse Subtenant or provide any allowance for any improvements, repairs, decorations, painting or carpeting, except as set forth in such Work Letter.  In connection therewith, Subtenant acknowledges that it has been given adequate time to examine the Subleased Premises, and that, except as expressly set forth in this Sublease, no representation or warranty, either express or implied, written or oral, has been made by Sublandlord with respect to the Building and Land or the suitability of the Subleased Premises for any use or purpose by Subtenant.

(b)The initial tenant improvements to the Subleased Premises (the "Subleased Premises Work") shall be performed by Overlandlord pursuant to the provisions of Schedule 4(b), attached (the "Work Letter"). Sublandlord shall deliver possession of the Subleased Premises to the Subtenant on the Commencement Date broom clean, free of occupants, in compliance with all Legal Requirements (as defined below) applicable to the Subleased Premises and Permitted Use generally (as opposed to Subtenant's particular use).

 

 

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5.Monthly Base Rent.

(a)The monthly base rent ("Monthly Base Rent") which Subtenant hereby agrees to pay to Sublandlord in advance for each month during the Term shall be as set forth in the table below. Subtenant shall pay Monthly Base Rent commencing on the Commencement Date and continuing thereafter on the first (1st) day of each and every calendar month during the Term of this Sublease.

 

 

*Based on twelve (12) full calendar months.

For the purposes of this Sublease, the first "Sublease Year" shall be defined as the period commencing on the Commencement Date and ending on the last day of the month in which the first (1st) anniversary of the Commencement Date occurs; provided, however, that if the Commencement Date occurs on the first day of a calendar month, then the first Sublease Year shall expire on the day immediately preceding the first (1st) anniversary of the Commencement Date. Thereafter, "Sublease Year" shall be defined as any subsequent twelve (12) month period during the Term.

(b)If the obligation of Subtenant to pay rent hereunder begins on a day other than on the first day of a calendar month, rent from such date until the first day of the following calendar month shall be prorated at the per diem rate of the monthly installment for each day payable in advance based on the number of days of such month within the Term. The Monthly Base Rent, Additional Rent and any other charges herein reserved or payable by Subtenant hereunder (collectively, "Rent") shall be paid to Sublandlord at the following address:

Pfizer Inc.

c/o Cushman and Wakefield of Florida, Inc.

12802 Tampa Oaks Blvd, Suite 330

Temple Terrace FL 33637

Attention: Lease Administration

or at such other place as Sublandlord may designate in writing, in lawful money of the United States without demand therefor and without deduction, setoff or abatement whatever, except as expressly provided in this Sublease (or pursuant to any provision of the Overlease that is expressly incorporated into this Sublease). Subtenant acknowledges and agrees that the obligations of Subtenant to pay Rent under this Sublease shall be separate and independent covenants and agreements.

 

 

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(c)In the event that any installment of Rent is not received by Sublandlord within five (5) days of the date due, Subtenant shall pay to Sublandlord an administrative fee equal to five percent (5%) of the overdue payment; provided, however, that if Subtenant is late in the payment of Rent more than two (2) times in any twelve (12) month period, thereafter such administrative fee shall be payable immediately upon the occurrence of any subsequent late payment without any grace period.  In addition, unpaid Rent shall bear interest at the Default Rate (hereinafter defined) from the date due until paid; provided that nothing contained herein shall be construed as permitting Sublandlord to charge or receive interest in excess of the maximum rate then allowed by law. The term "Default Rate" means twelve percent (12%) per annum. Sublandlord shall have the right to apply payments, regardless of Subtenant's designation, to satisfy any obligations of Subtenant hereunder, in such order and amount as Sublandlord may elect in its sole discretion. Any payment by Subtenant or acceptance by Sublandlord of a lesser amount than shall be due shall be treated as a payment on account. The acceptance by Sublandlord of a lesser amount with an endorsement or statement thereon, or in a letter accompanying such a check, that such lesser amount is payment in full, shall be given no effect, and Sublandlord may accept such check without prejudice to any other rights or remedies which Sublandlord may have against Subtenant.

6.Additional Rent.

(a)Subtenant agrees to pay to Sublandlord, as additional rent under this Sublease, the amount of any additional rent payable by Sublandlord under the Overlease (to the extent related to Subtenant's use or occupancy of the Subleased Premises, including, without limitation, pursuant to Sections 5.2 and 5.3 of the Overlease). It is agreed that any amounts payable by the Sublandlord under the Overlease (including, without limitation, those payable pursuant to Sections 5.2 and 5.3 of the Overlease) that are not specifically attributable to either the Subleased Premises or the remainder of the Main Premises, shall be deemed attributable to the Subleased Premises and included in Additional Rent in the same proportion as the rentable area of the Subleased Premises bears to the rentable area of the Main Premises ("Subtenant's Share", which, for the purposes of this Sublease, the parties agreed shall be deemed to be 12.1%). For purposes of this Sublease, Operating Costs shall, in addition to those amounts payable under Section 5.2 of the Overlease, include those costs that are incurred by Sublandlord to the extent such costs would be permitted as Operating Costs had they been charged by Overlandlord. Operating Costs shall include the costs of the services provided by Sublandlord as more particularly set forth on Schedule 6(a) hereto ("Sublandlord Services"). Notwithstanding anything to the contrary in the Lease or this Sublease, the commercially reasonable management fees incurred by Sublandlord (not to exceed 3% of gross rents from the property, plus reimbursable) in connection with the operation and maintenance of the Subleased Premises shall be included in Operating Costs and Subtenant shall pay Subtenant's Share of the same. For purposes of this Sublease, "Additional Rent" means any and all sums (whether or not specifically designated as "Additional Rent" in this Sublease), other than Monthly Base Rent, that Subtenant is or becomes obligated to pay to Sublandlord under this Sublease.

 

 

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Subtenant shall have the right to inspect, at reasonable times and in a reasonable manner, during the ninety (90) day period following the delivery of Sublandlord's statement of the actual amount of Operating Costs, such of Sublandlord's books of account and records as pertain to and contain information concerning such costs and expenses in order to verify the amounts thereof. Subtenant agrees that any information obtained during an inspection by Subtenant of Sublandlord's books of account and records shall be kept in confidence by Subtenant and its agents and employees and shall not be disclosed to any other parties, except to Subtenant's attorneys, accountants and other consultants. Any parties retained by Subtenant to inspect Sublandlord's books of account and records shall not be compensated on a contingency fee basis. If Subtenant shall not dispute any item or items included in the determination of Operating Expenses for a particular Sublease Year by delivering a written notice to Sublandlord generally describing in reasonable detail the basis of such dispute within sixty (60) days after the statement for such year was delivered to it, Subtenant shall be deemed to have approved such statement. During the pendency of any dispute over Operating Expenses, Subtenant shall pay, under protest and without prejudice, Subtenant's Share of Operating Costs as calculated by Sublandlord.

(b)Subtenant agrees to pay directly to the provider of the service, all charges for steam, gas, electricity, fuel, water, sewer and other services and utilities furnished to the Subleased Premises, which charges shall be based on metering equipment installed as part of the Subleased Premises Work (without markup). Sublandlord shall be responsible for the cost of installing such metering equipment. If at any time during the Term, any utility service to the Subleased Premises is not separately metered and paid directly to the service provider by Subtenant, Subtenant's usage and billing shall depend upon Sublandlord's reading of the check meters (or, if not check metered, upon the reasonable estimate of Subtenant's usage determined by the percentage of air flow used by Subtenant (measured through the Building energy management system)) for such service or if, Subtenant's usage is non-determinable, based on the same proportion as Subtenant's Share.  Unless separately metered and paid directly by Subtenant, Additional Rent for utilities in the Subleased Premises may be estimated monthly by Sublandlord, based upon the estimate set forth in the preceding sentence, and shall be paid monthly by Subtenant as billed with a final accounting based upon actual bills following the conclusion of each calendar year.

(c)Subtenant shall have the right in common with others to connect to and use the emergency generator (not to exceed 3-5 watts per rentable square foot and solely for back-up power purposes), compressed air system, central vacuum, and RO Water (Type 2 or 3) system, each to be located as shown on Schedule 6(c) (collectively, the "Special Systems") located at the Main Premises subject to the following conditions:

(1)Subtenant's use of the Special Systems shall be at Subtenant's sole risk to the extent permitted pursuant to Legal Requirements (Sublandlord making no representation or warranty regarding the sufficiency of the Special Systems for Subtenant's use);

 

 

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(2)Subtenant's use of the Special Systems shall be undertaken by Subtenant in compliance with Legal Requirements, including Environmental Laws, and Subtenant shall obtain any and all permits required in connection with Subtenant's particular use (to the extent differing, if at all, from the designed use of such systems) and shall hold Sublandlord harmless from any resulting liability, including but not limited to, fines, penalties, and surcharges;

(3)The actual costs to operate and maintain the Special Systems (without mark-up of any third party costs) shall be included in Additional Rent. Subtenant's use of the Special Systems shall not exceed the capacity set forth above or otherwise Subtenant's Share of the capacity available to other tenants (including Sublandlord) and subtenants of any such Special System;

(4)The use of the Special Systems shall be subject to the Rules and Regulations.

(5)Subtenant acknowledges and agrees that there are no warranties of any kind, whether express or implied, made by Sublandlord or otherwise with respect to the Special Systems or any services (if any) provided in the Special Systems, and Subtenant disclaims any and all such warranties.

Sublandlord may, at its sole election, add additional Special Systems to the Main Premises in the future and make the same available to all laboratory tenants, in which case such additional systems shall be treated as Special Systems hereunder if and so long as Sublandlord provides Subtenant with prior notice of the pending availability of such additional Special Systems and Subtenant elects in writing to utilize such additional Special Systems. If and to the extent that Subtenant specifically requests any service to the Subleased Premises from Sublandlord that Sublandlord is not required to provide pursuant to the terms of this Sublease, then Subtenant shall reimburse Sublandlord for the actual costs to provide such service within 30 days following invoice from Sublandlord (Sublandlord having no obligation to provide any such services).

(d)Additional Rent payable on any basis other than usage shall be apportioned during the year in which the Term of this Sublease commences and during the year in which such Term shall end, such that Subtenant shall be obligated to pay a proportionate share of such Additional Rent for the Subleased Premises that is attributable to the number of days of the Term hereof that are included in the period of which such Additional Rent is payable by Sublandlord under the Overlease.

Sublandlord shall give Subtenant copies of all relevant statements and bills received by Sublandlord pursuant to the applicable provisions of the Overlease, together with a statement of the amount of Additional Rent, if any, which Subtenant is required to pay under this section.

 

 

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Subtenant shall pay Additional Rent (i) within thirty (30) days of Subtenant's receipt of this statement or, (ii) if earlier, five (5) business days prior to the date such amounts are due under the Overlease (but in any event no less than two (2) business days after invoice on account of this clause (ii)). Subtenant shall also pay to Sublandlord, as Additional Rent, all other amounts payable by Sublandlord pursuant to the Overlease (other than Monthly Base Rent) that are attributable to the Subleased Premises and the Term of this Sublease or attributable to Subtenant or any person claiming by, through or under Subtenant or any of their respective employees, subtenants, licensees, agents, contractors and invitees (each, a "Subtenant Party”). Such amounts shall include, without limitation, charges for or related to Alterations, charges for common area janitorial and/or cleaning services, charges for common area trash removal, costs related to the loading dock dumpster and/or trash compactor, charges for common area electric and water usage, charges by Overlandlord for furnishing after-hours or excess HVAC or other utilities to the Subleased Premises, costs incurred by Overlandlord in repairing damage to the Building caused by Subtenant or any Subtenant Party to the extent required to be paid by Sublandlord under the Overlease, increased insurance premiums due as a result of Subtenant's use and/or occupancy of the Subleased Premises, and amounts expended or incurred by Overlandlord on account of any default by Subtenant under this Sublease which gives rise to a default under the Overlease. Subtenant's obligation to pay Additional Rent shall survive the expiration or earlier termination of this Sublease. Subtenant agrees that Subtenant's obligation to pay Rent is not dependent upon the condition of the Subleased Premises or the performance by Sublandlord of its duties or obligations hereunder (or the performance by Overlandlord of its duties or obligations under the Overlease).

7.Security Deposit.

(a)Simultaneously with the execution of this Sublease, Subtenant shall deposit with Sublandlord an unconditional and irrevocable letter of credit ("Letter of Credit") in the amount of $1,225,800.00 in the form attached hereto as Schedule 7(a). The Letter of Credit shall be issued by a bank satisfactory to Sublandlord and having an office in the Cities of Boston or Cambridge, Massachusetts. Subtenant shall ensure that at all times after the execution and delivery of this Sublease until forty-five (45) days after the expiration of the term of the Sublease an unexpired Letter of Credit in the amount of $1,225,800.00 shall be in the possession of Sublandlord. The Letter of Credit shall have a term ending no earlier than forty-five (45) days after the expiration of the Term and shall not be canceled unless the issuing bank delivers forty­ five (45) days' prior written notice to Sublandlord. Subtenant shall deliver to Sublandlord, no later than thirty (30) days prior to the expiry date of the then outstanding and expiring Letter of Credit, if any, a replacement Letter of Credit. Sublandlord shall be entitled to draw on the Letter of Credit (i) if Subtenant fails to deliver any replacement Letter of Credit as required, in which event Sublandlord shall be permitted to retain the entire proceeds of such Letter of Credit for application as a cash Security Deposit hereunder (on the terms set forth below), (ii) to cure or attempt to cure, in whole or in part, any default by Subtenant under this Sublease following any and all applicable notice and cure periods, in which event Subtenant shall replenish the amount so drawn upon demand by Sublandlord, and (iii) if the credit rating of the long-term debt of the issuer of the Letter of Credit (according to Moody's or similar national rating agency) is downgraded to a grade

 

 

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below investment rate, or if the issuer of the Letter of Credit shall enter into any supervisory agreement with any governmental authority, or if the issuer of the Letter of Credit shall fail to meet any capital requirements imposed by applicable law, unless Subtenant delivers to Sublandlord a replacement Letter of Credit complying with the terms of this Sublease within thirty (30) days after demand therefor from Sublandlord. Failure by the issuer to honor a draw request on the Letter of Credit shall be a default under the terms of this Sublease entitling Sublandlord to exercise its remedies hereunder. Each Letter of Credit shall be for the benefit of Sublandlord and its successors and assigns and shall entitle Sublandlord or its successors or assigns to draw from time to time under the Letter of Credit in portions or in whole upon presentation of a sight draft and statement by Sublandlord that Sublandlord is entitled to draw thereunder pursuant to the terms and provisions of this Sublease. Sublandlord shall have an unrestricted right to transfer the Letter of Credit at any time and to any successor or lender selected by Sublandlord. Subtenant shall pay any transfer commission (fee) and all other costs (hereinafter collectively referred to as the "Transfer Fee") which may be imposed by the bank issuing the Letter of Credit for the transfer of the Letter of Credit by Sublandlord. Subtenant's failure to pay the Transfer Fee shall constitute an Event of Default, and Sublandlord shall have the right to pursue any and all remedies provided Sublandlord under this Sublease, in equity and at law.

(b)Any cash held by Sublandlord following a draw on the Letter of Credit pursuant to the immediately preceding paragraph, and not otherwise applied towards the cure of an Event of Default (as defined below), shall be held as a cash security deposit (a "Security Deposit") until such time as Subtenant replaces the Letter of Credit as security for the performance by Subtenant of Subtenant's covenants and obligations under this Sublease (at which time such cash deposit shall be returned to Subtenant within ten (10) days), it being expressly understood that the Security Deposit shall not be considered an advance payment of Rent or a measure of Subtenant's liability for damages in case of default by Subtenant. Sublandlord shall hold the Security Deposit throughout the term of this Sublease as security for the performance by Subtenant of all obligations on the part of Subtenant hereunder. Sublandlord shall have the right from time to time, without prejudice to any other remedy Sublandlord may have on account thereof, to apply such deposit, or any part thereof, to Sublandlord's damages arising from, or to cure, any Event of Default by Subtenant. Sublandlord shall return any Security Deposit then held by Sublandlord, or so much thereof as shall not have theretofore been applied in accordance with the terms of this paragraph, to Subtenant on the expiration or earlier termination of the term of this Sublease and surrender of possession of the Subleased Premises by Subtenant to Sublandlord at such time, provided that if there is then existing an Event of Default (or any circumstance which, with the passage of time or the giving of notice, or both, would constitute an Event of Default), Sublandlord shall retain a portion of the Security Deposit sufficient to cure such Event of Default and shall return the remainder of the Security Deposit to Subtenant. While Sublandlord holds such deposit, Sublandlord shall have no obligation to pay interest on the same and shall have the right to commingle the same with Sublandlord's other funds.

 

 

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(c)In the event of a sale, assignment or other transfer of Sublandlord's interest in this Sublease, Sublandlord shall have the right to transfer the security to the transferee ("New Sublandlord") and upon such transfer Sublandlord shall thereupon be released by Subtenant from all liability for the return of such security; and Subtenant agrees to look to the New Sublandlord solely for the return of said security. The provisions hereof shall apply to every transfer or assignment made of the security to a New Sublandlord. Subtenant further covenants that it will not assign or encumber or attempt to assign or encumber the Letter of Credit or the Security Deposit, and that neither Sublandlord nor its successors or assigns shall be bound by any assignment, encumbrance, attempted assignment or attempted encumbrance of the Letter of Credit or the Security Deposit.

8.Use; Access. (a) Subtenant will use and occupy the Subleased Premises solely for general office, research and development, laboratory (collectively, the "Permitted Use"), and, subject to Legal Requirements, other ancillary uses accessory to the foregoing allowed as-of­ right to the extent not incompatible (in Sublandlord's reasonable judgment) with the Building systems and general uses of the Building and for no other purposes whatsoever.

(b)Subtenant, subject to the provisions of the Overlease and this Sublease, shall have access to the Subleased Premises twenty four (24) hours per day, three hundred sixty five (365) days per year, subject to matters described in Section 27, the requirements and rights of Overlandlord under the Overlease, and reasonable security measures and limitations on access in the event of an emergency or as necessary for the protection of persons and property. Subtenant shall be responsible for security for the Subleased Premises, which shall be coordinated with, and reasonably approved by, Sublandlord.

9.Alterations.

(a)Subtenant shall not make any alteration, improvement, decoration, or installation (collectively, "Alterations") in or to the Subleased Premises, without in each instance obtaining the prior written consent of Overlandlord and Sublandlord (which consent of Sublandlord may be withheld or conditioned on the conditions applicable to Overlandlord's approval of Alterations under the Overlease). If any Alterations are made by Subtenant without complying with the terms of the Overlease and this Sublease, or without obtaining the prior written consent of Overlandlord and Sublandlord, Overlandlord or Sublandlord may remove same, and may repair and restore the Subleased Premises and any damage arising from such removal, and Subtenant shall be liable for any and all costs and expenses incurred by Overlandlord or Sublandlord in the performance of such work. In no event shall Subtenant make any Alterations in or to the Subleased Premises if to do so would constitute a default under the Overlease. Notwithstanding anything contained herein to the contrary, Alterations shall not include Subleased Premises Work and Subleased Premises Work shall not have to be removed by Subtenant at the expiration or earlier termination of this Sublease, unless the terms of the Overlease or Overlandlord's consent to such Subleased Premises Work require (or permit Overlandlord to require), upon the expiration or earlier termination of the Overlease or this Sublease, removal of such Subleased Premises Work.

 

 

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(b)If any Alterations are consented to by Overlandlord and Sublandlord, Subtenant may have such Alterations performed in a good and workerlike manner by contractors and at Subtenant's sole cost and expense, provided that Subtenant has obtained written approval of the contractor from Overlandlord and Sublandlord. Without limiting any other requirements and conditions which may be imposed by Overlandlord and Sublandlord, such contractor shall be properly licensed, and have a financial condition, experience and past job performance satisfactory to Overlandlord and Sublandlord each in their sole discretion. The design of and plans for all Alterations undertaken by Subtenant shall also be subject to prior written approval of Overlandlord and Sublandlord in accordance with the standards set forth in the Overlease and any additional reasonable standards of Sublandlord and such Alterations shall not be commenced until such approvals are obtained. If any Alterations are consented to by Overlandlord and Sublandlord, Subtenant shall comply with all applicable provisions of the Overlease with respect to the performance of such Alterations. With reasonable notice to Subtenant, Overlandlord and Sublandlord shall at all times have the right to inspect the work performed by any contractor selected by Subtenant during normal business hours. In connection with any Alterations, Subtenant shall obtain lien waivers from any contractor or other party entitled to protection under the mechanics' lien laws of Massachusetts with each payment made by Subtenant to such contractors or third parties and provide copies of the same to Sublandlord. Furthermore, Sublandlord may condition its consent to any Alterations that cost in excess of $100,000 on Subtenant furnishing a lien bond or other security satisfactory to Sublandlord prior to the commencement of such Alterations.

(c)Upon the expiration or earlier termination of this Sublease, Subtenant shall surrender the Subleased Premises, together with all Alterations and other improvements (including, without limitation, plumbing, lighting, electrical, HVAC, telecommunications (unless Sublandlord otherwise directs), and other items used in the operation of the Subleased Premises), subject only to reasonable wear and tear and to damage, if any, by fire or other casualty. All Alterations in or upon the Subleased Premises made by Subtenant shall become part of and remain in the Subleased Premises upon such expiration or termination without compensation, allowance or credit to Subtenant; provided, however, that upon the expiration or earlier termination of this Sublease, (i) in the event Subtenant makes Alterations in or to the Subleased Premises in violation of the provisions set forth in this Section 9, or (ii) if the terms of the Overlease or Overlandlord's consent to any Alterations or the Subleased Premises Work require (or permit Overlandlord to require and Sublandlord elects to require the removal of such Alterations by notice to Subtenant given in the same manner by which Overlandlord is required to provide notice of such required removal), upon the expiration or earlier termination of the Overlease or this Sublease, removal of such Alterations, the Subleased Premises Work or any portion(s) thereof, and/or the restoration of the Subleased Premises by reason of the installation or removal of such Alterations, Subleased Premises Work or any portion(s) thereof, Subtenant shall remove said Alterations and/or Subleased Premises Work and thereafter repair all damage resulting from such removal and restore the Subleased Premises to the condition as of the date possession was delivered to Subtenant (or such other condition as required by the Overlease or Overlandlord' s consent, if applicable). If Subtenant fails or refuses to remove such Alterations and/or Subleased Premises Work or fails to repair and restore the Subleased Premises, Overlandlord or Sublandlord may cause the same to be removed, and repairs and restoration to be made, in which event Subtenant shall

 

 

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reimburse to the party who caused said Alterations and/or Subleased Premises Work to be removed and repairs made, the cost of such removal, repairs and restoration, together with any and all damages which Overlandlord or Sublandlord may suffer and sustain by reason of Subtenant's failure or refusal to remove said Alterations and/or Subleased Premises Work. Subtenant shall surrender to Sublandlord all keys and combinations to locks which Subtenant is permitted to leave.  If the Term of this Sublease (or any portion thereof) expires at or about the date of the expiration of the Overlease (or any portion thereof), and if Sublandlord is required under or pursuant to the terms of the Overlease to remove any Alterations and/or Subleased Premises Work, Subtenant shall permit Sublandlord to enter the Subleased Premises for a reasonable period of time prior to the expiration of this Sublease for the purpose of removing its Alterations and/or Subleased Premises Work and restoring the Subleased Premises as required.The obligations of Subtenant as provided in this paragraph shall survive the expiration or earlier termination of this Sublease.

10.Subtenant's Personal Property. Upon the expiration or earlier termination of this Sublease, Subtenant shall remove all of its furniture, furnishings and equipment, shall repair all damage resulting from such removal and all damage resulting from its use of the Subleased Premises, and shall (subject to the provisions of Section 9 above) surrender the Subleased Premises, as so required, in good condition, subject only to reasonable wear and tear and to damage, if any, by fire or other casualty. In the event Subtenant does not do so, Overlandlord or Sublandlord may, at its option, remove the same (and repair any damage occasioned thereby and restore the Subleased Premises as aforesaid) and dispose thereof, or warehouse the same, and Subtenant shall pay the reasonable cost of such removal, repair, restoration, delivery or warehousing to Sublandlord, or Sublandlord may treat such property as having been conveyed to Sublandlord, with this Sublease constituting a bill of sale therefor, without further payment or credit by Sublandlord to Subtenant. All personal property in or about the Subleased Premises owned by Subtenant or any other party shall be at the risk of Subtenant only, and Sublandlord shall not be liable for any loss or damage thereto or theft thereof, except to the extent caused by the negligence or willful misconduct of Sublandlord.  The obligations of Subtenant as provided in this section shall survive the expiration or earlier termination of this Sublease.

11.Terms of Overlease.

(a)Except as herein otherwise expressly provided, all of the terms, provisions, covenants and conditions of the Overlease are incorporated herein by reference and hereby made a part of and are superior to this Sublease, provided that in construing such terms, provisions, covenants and conditions of the Overlease as incorporated herein, the term "Landlord" as used in the Overlease shall refer to Sublandlord hereunder and its successors and assigns; the term "Tenant" as used in the Overlease shall refer to Subtenant hereunder; and the term "Premises" shall refer to the Subleased Premises. Subtenant shall be obligated, however, to pay only the Rent, Letter of Credit and Security Deposit provided for in this Sublease and not the amounts of rent, rental escalations and security deposit, if any, provided to be paid by Sublandlord under the Overlease. In addition, any provisions in the Overlease allowing or purporting to allow Sublandlord any rent concessions or abatements or construction or improvements allowances, or granting Sublandlord any option or right to

 

 

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expand the Main Premises, extend the term of the Overlease or any other option, shall not apply to this Sublease, except that Subtenant shall receive the benefit of any abatement received by Sublandlord under Section 9.6(b) of the Overlease, to the extent that any Affected Portion includes the Subleased Premises.

In addition, the following provisions of the Overlease shall not be applicable to this Sublease: Sections 1.2, 1.4(c), 5.2(1), 9.6(b) (except to the extent any Affected Portion includes the Subleased Premises), 12.1, Sections 12.3, 13.2, 13.7, 14.l(e), 14.2(b), 15.2(b) 15.2(c), 20.9(b), 25.15, the right to record a Notice of Lease pursuant to Section 1.3, any rights in Parking Spaces under Section 1.4(b) except as expressly set forth in this Sublease, Articles 3 (except to the extent expressly incorporated herein with respect to the Subleased Premises Work) and 6, the last paragraph of Section 10.2, the provisions of Section 11.1 and the remainder of the Overlease applicable to Permitted Alterations, clause (i) of Section 15.5, the last two sentences of Section 17.8, any rights provided to Sublandlord with respect to Permitted Transfers and Working Partnerships, generally, Sections 2, 3, 5, or 7 of the Second Amendment, and Sections 2 and 3 of the Third Amendment.

(b)As between the parties hereto, Subtenant, with respect to the Subleased Premises, hereby assumes all of the obligations of Sublandlord, as Tenant, under the Overlease, including, without limitation, all defense, indemnification and hold harmless obligations, and Subtenant shall perform all such obligations so assumed for the benefit of both Sublandlord and Overlandlord with respect to this Sublease, the Subleased Premises and the Term hereunder. Subtenant shall not commit any act or omission which would violate any term or condition of the Overlease. To the extent practicable, Subtenant shall perform affirmative covenants which are also covenants of Sublandlord under the Overlease at least five (5) business days prior to the date when Sublandlord's performance is required under the Overlease.  Without limiting the generality of the foregoing, Subtenant shall be responsible for all maintenance, repairs and replacements to the Subleased Premises and its equipment to the extent Sublandlord is obligated to perform the same under the Overlease, and Subtenant shall comply with any and all local, state and federal laws, ordinances, rules and regulations, including but not limited to, Environmental Laws (defined below), building and zoning laws, ordinances and regulations, laws, rules, orders, and regulations of all applicable governmental authorities and, without limitation, all other "laws, "Legal Requirements" and the like however defined in the Overlease (collectively, "Legal Requirements") applicable to the Subleased Premises or to Subtenant's particular use or manner of use thereof or of the Building and land of which the Subleased Premises are a part, including laws governing handicapped access or architectural barriers.  In the event Subtenant desires to take any action and the Overlease would require Sublandlord to obtain the consent of Overlandlord before undertaking any such action of the same kind, Subtenant shall not undertake the same without the prior written consent of Sublandlord and Overlandlord, and Sublandlord may condition its consent upon the receipt of Overlandlord's consent to same. Sublandlord shall have all of the rights and remedies of Overlandlord under the Overlease as against Subtenant.

 

 

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(c)Notwithstanding anything to the contrary, Sublandlord does not assume any obligation to perform the provisions of the Overlease to be performed by Overlandlord (including, without limitation, the provision or performance of utilities, services, improvements, allowances, maintenance or repairs) and Sublandlord is not making the same representations and warranties, or agreements to indemnify, defend or hold harmless, if any, made by Overlandlord in the Overlease. Sublandlord shall not be liable to Subtenant for any default, failure or delay on the part of Overlandlord in the performance or observance by Overlandlord of any of its obligations under the Overlease, nor shall such default by Overlandlord affect this Sublease or waive or defer the performance of any of Subtenant's obligations hereunder, except to the extent that such default by Overlandlord excuses performance of Sublandlord under the Overlease. Sublandlord shall reasonably cooperate with Subtenant, at no cost to Sublandlord, in seeking to obtain the performance of Overlandlord pursuant to the Overlease. However, such cooperation shall not require Sublandlord to litigate or pursue other proceedings. Subtenant shall not receive any abatement of Rent under this Sublease because of Overlandlord's failure to perform any of its obligations under the Overlease, except that if Sublandlord receives an abatement of rent from Overlandlord relating to the Subleased Premises, Subtenant shall receive a proportionate benefit of such abatement of rent to the extent same is allocable to Rent payable hereunder.

(d)Sublandlord represents and warrants that it has provided Subtenant with a true and correct redacted copy of the Overlease (including all amendments and other agreements affecting Sublandlord's occupancy) attached to this Sublease as Schedule 32, and Subtenant represents and warrants that it has reviewed the same, and that it is familiar with the contents thereof. Subtenant further acknowledges and understands that notwithstanding anything to the contrary herein, in the event that the Overlease is terminated for any reason, this Sublease shall also be automatically and simultaneously terminated (except as may otherwise be provided in Overlandlord's consent), and thereupon Subtenant shall vacate and surrender the Subleased Premises in accordance with all terms of the Overlease and this Sublease.

(e)If the Overlease terminates, this Sublease shall terminate (except as may otherwise be provided in Overlandlord's consent) and the parties shall be relieved of any further liability or obligation under this Sublease other than any obligations that expressly survive a termination of this Sublease by its terms; provided, also, that if the Overlease terminates as a result of a default or breach by Subtenant under this Sublease, then Subtenant shall be liable to Sublandlord for the damages suffered as a result of such termination. If the Subleased Premises are damaged or destroyed and Overlandlord exercises any option Overlandlord may have to terminate the Overlease, this Sublease shall terminate as of the date of the termination of the Overlease. If the Overlease gives Sublandlord any right to terminate the Overlease in the event of the partial or total damage, destruction, or condemnation of the Main Premises or the building or project of which the Main Premises are a part, the exercise of such right by Sublandlord shall not constitute a default or breach hereunder, and upon such exercise this Sublease shall also be automatically and simultaneously terminated and thereupon Subtenant shall vacate and surrender the Subleased Premises in accordance with all terms of the Overlease and this Sublease and thereafter the parties shall be relieved of any further liability or obligation under this Sublease other than any obligation that expressly survives a termination of this Sublease by its terms.

 

 

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[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

12.Casualty; Eminent Domain. In the event of a fire or other casualty affecting the Building or the Subleased Premises, or of a taking of all or a part of the Building or Subleased Premises under the power of eminent domain: (i) Sublandlord shall not have any obligation to repair or restore the Subleased Premises or any Alterations or personal property; (ii) Subtenant shall be entitled only to a proportionate abatement of Monthly Base Rent, Additional Rent and other charges to the extent Sublandlord receives a corresponding abatement of rent under the Overlease during the time and to the extent the Subleased Premises are unfit for occupancy for the purposes permitted under this Sublease and not occupied by Subtenant as a result thereof; (iii) Subtenant shall not, by reason thereof, have a right to terminate this Sublease unless the Overlease shall be terminated; and (iv) Sublandlord reserves the right to terminate the Overlease and this Sublease in connection with any right granted to it under the Overlease whether or not the Subleased Premises is damaged or the subject of a taking. In the event Overlandlord or Sublandlord exercises the right to terminate the Overlease as the result of any such fire, casualty or taking, Sublandlord shall provide Subtenant with a copy of the relevant termination notice and this Sublease shall terminate on the date upon which the Overlease terminates. If the Subleased Premises or any part of the Main Premises necessary for the use and enjoyment of the Subleased Premises is damaged by fire or other casualty, then either Sublandlord or Subtenant shall have the right to terminate this Sublease upon thirty (30) days' written notice to the other if the estimated time to complete restoration (as set forth in the Overlandlord's Restoration Estimate described in the Overlease) exceeds twelve (12) months.

13.Holdover. In the event Subtenant or anyone claiming by, through or under Subtenant is in possession of the Subleased Premises after the expiration or earlier termination of this Sublease, then Subtenant, at Sublandlord's option, shall be deemed to be occupying the Subleased Premises at sufferance at a Monthly Base Rent equal to one hundred fifty percent (150%) of the Monthly Base Rent in effect prior to expiration or termination, and shall otherwise remain subject to all of the conditions, provisions and obligations of this Sublease insofar as the same are applicable to a tenancy at sufferance, including, without limitation, the payment of all Additional Rent and all other amounts due from Subtenant to Sublandlord hereunder.  No holding over by Subtenant after the expiration or termination of this Sublease shall be construed to extend or renew the Term or Extension Term, as the case may be, or in any other manner be construed as permission by Sublandlord to holdover. Subtenant shall indemnify and hold Sublandlord harmless from and against any and all damages (actual, consequential or otherwise), losses, costs and expenses, including reasonable attorneys' fees, and including, without limitation, any holdover rent, additional rent, penalties and damages under the Overlease arising out of a holdover under this Sublease, incurred by Sublandlord arising out of or in any way attributable to such holding over and/or failure to surrender and deliver the Subleased Premises in the condition required by this Sublease on the expiration or earlier termination of the Term of this Sublease; provided, Subtenant shall not be liable for consequential, indirect or special damages unless such holdover continues for more than thirty (30) days.  Nothing contained herein shall be construed as consent by Sublandlord to any holding over. Subtenant's obligations hereunder shall survive the expiration or earlier termination of this Sublease.

 

 

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[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

14.Events of Default; Remedies.

(a)Each of the following events shall constitute an "Event of Default" under this Sublease:

(b)Upon the occurrence of an Event of Default, Sublandlord shall have, in addition to any other rights and remedies available to it under this Sublease and/or at law and/or in equity, the following remedies:

 

 

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[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

 

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[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

15.Insurance. Subtenant shall obtain and maintain all insurance types and coverages as specified in the Overlease to be obtained and maintained by Sublandlord, as tenant thereunder, in amounts not less than those specified in the Overlease. Without limiting the foregoing, Subtenant shall at all times during the Sublease Term maintain in effect property policies of insurance covering all of Subtenant's personal property and all tenant improvements, subleasehold improvements, and other alterations (including, without limitation, as such terms may be defined in the Overlease) including, without limitation, any and all Alterations under this Sublease, and any plate glass, trade fixtures, merchandise and all other personal property from time to time in or on the Subleased Premises, in an amount not less than one hundred percent (100%) of their actual replacement cost, providing protection against all risks including Fire and Extended Coverage Insurance, together with insurance against vandalism and malicious mischief. Subtenant shall also maintain at its expense worker's compensation insurance in the minimum amount required by law. The general liability insurance obtained by Subtenant must have minimum limits of $4,000,000 per occurrence or any higher minimum limits required under the terms of the Overlease. All policies of insurance obtained by Subtenant shall name Overlandlord (in accordance with the Overlease) and Sublandlord and its affiliates as additional insureds therein. Subtenant's insurance shall be primary and non-contributing to Overlandlord's and Sublandlord's or its affiliates' insurance. Subtenant will deliver to Sublandlord on or before the Commencement Date or the date that Subtenant first enters the Subleased Premises and annually thereafter on the anniversary of the Commencement Date, certificates reflecting that Subtenant has obtained and is maintaining the required insurance coverages in the appropriate amounts.  Anything in this Sublease to the contrary notwithstanding,  Subtenant (and its affiliates) each hereby waive any and all rights of recovery, claims, actions or causes of action against the Sublandlord and Overlandlord and the officers, directors, partners, members, agents and employees of each of them, including but not limited to any loss or damage that may occur to the Subleased Premises, or any improvements therein and any personal property of Subtenant or any person in the Subleased Premises or in the Building, by reason of fire, the elements or any other cause insured against (or required to be insured against by the terms of this Sublease) under property insurance policies, regardless of cause or origin, including negligence, except in any case which would render this waiver void under law, to the extent that such loss or damage is actually recovered under such insurance policies (or would have been recovered had the insurance required by this Sublease been maintained), including any deductible or retention. Subtenant agrees to obtain, for the benefit of Overlandlord and Sublandlord (and its affiliates), appropriate waiver of subrogation rights and endorsements from its property, general liability and workers' compensation insurer. Such required insurance shall be written by companies of recognized financial standing which are legally qualified to issue such insurance in the jurisdiction where the Building is located and all insurance must be procured with carriers having an A.M. Best rating of A-VII or better. All deductibles/retentions on Subtenant's insurance policies shall be the sole responsibility of Subtenant.

 

 

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[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

16.Subtenant's Covenants; Sublandlord's Covenants.

(a)Subtenant covenants and agrees that Subtenant shall not do anything which would constitute a default under the Overlease or omit to do anything which Subtenant is obligated to do under the terms of this Sublease and which would constitute a default under the Overlease. Notwithstanding anything contained in this Sublease to the contrary, Subtenant shall not be responsible for (i) any default of Sublandlord under the Overlease unless attributable to a default under this Sublease or the Overlease by Subtenant, its agents, employees, contractors, invitees or anyone claiming by, through or under Subtenant, (ii) conditions at the Subleased Premises, for which the obligation to maintain and repair resides with Overlandlord, (ii) the payment of any charges, fees and other costs imposed by Overlandlord on Sublandlord as a result of Sublandlord' s default under the Overlease (except and to the extent arising out of any default by Subtenant under this Sublease), or (iii) the payment of any sums either to Overlandlord or Sublandlord in satisfaction of any charges accruing under the Overlease (whether denominated as rent, rental, additional rent or otherwise) for any period prior to the Term of this Sublease.

(b)Sublandlord shall not (i) enter into any amendment or modification of the Overlease which will adversely affect in more than a de minimis manner Subtenant's interest in the Sublease, or (ii) terminate the Overlease or enter into any agreement terminating the Overlease other than a termination permitted pursuant to the terms of the Overlease, without in each case obtaining the prior written consent of Subtenant, which consent may be withheld in Subtenant's sole discretion so long as Subtenant is not in default of this Sublease beyond any applicable notice and cure periods. Sublandlord will not suffer to be done, or omit to do, any act which may result in a violation of or a default by Sublandlord under the Overlease which causes the Overlease to be terminated or forfeited by reason of any right of termination or forfeiture reserved or vested in Overlandlord under the Overlease.

17.Waiver of Claims and Indemnification. Subtenant hereby releases and waives any and all claims against Overlandlord and Sublandlord and each of their respective officers, directors, partners, members, agents, affiliates and employees (the "Indemnitees") for injury or damage to person, property or business sustained in or about the Building or the Subleased Premises by Subtenant other than by reason of negligence or willful misconduct of Overlandlord or Sublandlord and except in any case which would render this release and waiver void under applicable law. Subtenant shall and hereby does indemnify and hold the Indemnitees harmless from and against any and all actions, claims, demands, damages, liabilities and expenses (including, without limitation, reasonable attorneys' fees and expenses) ("Losses") asserted against, imposed upon or incurred by the Indemnitees by reason of (a) any default caused by, or resulting from the acts or omissions of Subtenant or any Subtenant Party, of any of the terms, covenants or conditions of the Overlease or this Sublease, or (b) any damage or injury to persons or property occurring upon or in connection with the use or occupancy of the Subleased Premises (including, but not limited to any Losses arising out of the making of the Subleased Improvements by Subtenant, its agents and employees) other than those arising from the negligence of willful misconduct of the Indemnitees, as applicable, or (c) any work or thing whatsoever done or condition created by Subtenant or any Subtenant Party in, on or about the Subleased Premises or the Building, or (d) any negligent act or omission of Subtenant or any Subtenant Party, or (e) the use of the Special Systems by any Subtenant Party. The provisions of this Section 17 shall survive the expiration or earlier termination of this Sublease.

 

 

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[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

18.Environmental Matters.

(a)Subtenant, at Subtenant's sole cost and expense, shall comply with all requirements of the Overlease relating to Environmental Laws, Hazardous Materials and other environmental, health and safety matters to the extent applicable to the Subleased Premises and/or Subtenant's operations and otherwise not resulting from the acts or omissions of Sublandlord in violation of the terms of the Overlease or this Sublease. Without limiting the foregoing obligation, and notwithstanding anything in the Overlease to the contrary, Subtenant covenants to Sublandlord that, except as permitted by Section 18(b) below, no Hazardous Materials (as defined herein) will be introduced by Subtenant, its agents, invitees, servants or employees into, on, under, or around the Subleased Premises, other than (A) those normally utilized in an office environment, including, but not limited to, Hazardous Materials which may be contained in cleaning solutions or products utilized in photostatic copying and other office machines, and (B) Subtenant's Hazardous Materials, and then only so long as such materials are utilized, stored or present on the Subleased Premises in a manner consistent with the instructions of the manufacturer of such materials and in a manner and quantity that do not violate any Environmental Laws (as defined herein) or provisions of the Overlease (including without limitation any such provisions that require Sublandlord to obtain the prior written consent of Overlandlord).  To the extent not Sublandlord's obligation under this Sublease, Subtenant shall be responsible for assuring that all laboratory uses are adequately and properly vented in accordance with applicable Legal Requirements, and then only so long as such materials are utilized, stored or present on the Subleased Premises in a manner consistent with the instructions of the manufacturer of such materials and in a manner and quantity that do not violate any Environmental Laws (as defined herein) or provisions of the Overlease and, in all events, in strict compliance with all Environmental Laws and requirements of the Overlease. For purposes hereof, "Subtenant's Hazardous Materials" shall mean all Hazardous Materials brought, kept, used or disposed of by Subtenant at, in or on the Subleased Premises for the Permitted Use, and those Hazardous Materials listed in Subtenant's submissions concerning the Subleased Premises to any governmental authorities including without limitation the City of Cambridge Fire Department; provided, however, that in no event shall Subtenant include in such submissions more than Subtenant's Share of the quantity and/or types of any Hazardous Materials permitted by Environmental Laws in the entire Building. In furtherance and not in limitation of the foregoing, Subtenant's flammable storage permit shall not list more than Subtenant's Flammable Share of any category of flammable materials allowed in the entire Building under 527 CMR 9.00 et seq. and 527 CMR 14.00 et seq. without a license having been issued to Overlandlord. For purposes hereof, "Subtenant's Flammable Share" shall mean a fraction, the numerator of which is the amount of flammable materials that may be lawfully stored in all of Subtenant's control areas, and the denominator of which is the amount of flammable materials that may be lawfully stored in all control areas that exist or may exist in the Building. Subtenant shall be responsible for obtaining its own generator identification number under the Resource Conservation and Recovery Act, if needed to comply with Environmental Laws, and for complying with all of the applicable requirements thereof.

(b)Except as permitted in subparagraph (a) above, Subtenant shall not cause or permit any other Hazardous Material to be used, stored, generated, transported or disposed of on, at or in or about the Subleased Premises by Subtenant or the Subtenant Parties without first obtaining Sublandlord's written consent.  If any Hazardous Materials that used, stored, generated, transported or disposed of by Subtenant or the Subtenant Parties on, at, in

 

 

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[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

or about the Subleased Premises result in contamination of the Subleased Premises or any other property, or if the Subleased Premises or any other property become the subject of an Environmental Claim (as defined herein) relating to Subtenant's or any Subtenant Party's use, occupation, or operation of the Subleased Premises or to Subtenant's use, storage, generation or disposal of Hazardous Materials in any manner during the Term, Subtenant shall indemnify and hold harmless the Indemnitees from and against: (i) any and all actions, claims, damages, fines, judgments, penalties, costs, liabilities or losses (including, without limitation, a decrease in value of the Subleased Premises, damages arising out of any loss or restriction of rentable or usable space, or any damages caused by adverse impact on marketing of the space, and (ii) any and all sums paid for settlement of claims, attorneys' fees, consultant and expert fees) arising during or after the Term and arising out of such Environmental Claim as described in this Section l 8(b). This indemnification includes, without limitation, any and all costs incurred by Sublandlord or Overlandlord because of any investigation or any cleanup, removal or restoration required under applicable Environmental Laws or mandated by a federal, provincial or local agency or political subdivision. Without limitation of the foregoing, if Subtenant or any of the Subtenant Parties causes or permits the presence of any Hazardous Materials on the Subleased Premises that results in an Environmental Claim, Subtenant shall promptly at its sole expense, take any and all necessary actions to return the Subleased Premises to the condition existing prior to the presence of any such Hazardous Materials on the Subleased Premises. Subtenant shall first obtain Sublandlord's written approval for any such remedial action.

(c)Sublandlord or its agents may perform an environmental inspection of the Subleased Premises at any time during the Term, upon prior written notice to Subtenant, or without notice in the event of an emergency or other extraordinary circumstance. Sublandlord agrees to use commercially reasonable efforts to minimize any interference to Subtenant's use and enjoyment of the Subleased Premises in connection with the performance of such inspection. The cost of such inspection shall be borne by Sublandlord unless such inspection arises out of the act or omission of Subtenant or reveals the presence of Hazardous Materials in violation of the above provisions of this Section or that Subtenant has not complied with the requirements of this Section 18 or with any Environmental Law, in which case Subtenant shall reimburse Sublandlord for the reasonable cost thereof within ten (10) days after Sublandlord's request therefor. Subtenant shall, at its sole cost and expense, promptly and satisfactorily remediate any environmental conditions identified by such inspection in accordance with all Environmental Laws, except for environmental conditions that can be shown to have arisen prior to the Commencement Date, the burden being on Subtenant to make such a showing to the reasonable satisfaction of Sublandlord.

(d)Subtenant shall assume full responsibility for reporting any release, spill, leak, discharge, disposal, pumping, pouring, emission, emptying, injecting, leaching, dumping or escaping ("Release") or threat of Release of any Hazardous Materials at the Subleased Premises to the appropriate governmental or quasi-governmental agencies and immediately provide notice of such Release or threat of Release to Sublandlord and Overlandlord whether or not such notice has been, or is required to be provided to a governmental or quasi-governmental agencies. Subtenant will assume full responsibility for any investigation, clean-up or other action required in relation to any such Release or threat of Release and will indemnify and hold the Indemnitees harmless for any Environmental Claims in relation thereto. Subtenant will take all reasonable precautions to avoid any such Release or threat of Release. Subtenant shall notify Sublandlord of any violation of Environmental Law caused by the acts or omissions of Subtenant, its employees, contractors, invitees or assigns.

 

 

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[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

(e)The following terms shall have the following meanings (provided that such terms shall not diminish Subtenant's obligation to comply with all of the requirements of the Overlease relating to Environmental Laws, Hazardous Materials and other environmental, health and safety matters as set forth in the Overlease):

(i)"Environmental Laws" means collectively, any environmental law, including, but not limited to, the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §9601 et seq., the Resource Conservation and Recovery Act, 42 U.S.C. §6901, et. seq., the Clean Water Act, 33 U.S.C. §1251, et. seq., the Clean Air Act, 42 U.S.C.§7401, et. seq., the Safe Water Drinking Act, 14 U.S.C. §300f, et. seq., the Toxic Substances Control Act, 15 U.S.C. § 2601, et. seq., the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. §136 et. seq., the Occupational Safety and Health Act, 29 U.S.C. §651 et. seq., all regulations promulgated under any of the foregoing laws, any state law equivalents to any of the foregoing, and any other law, regulation, or ordinance related to environmental matters or liability with respect to or affecting the Subleased Premises or the Building, whether in effect now or in the future.

(ii)"Hazardous Materials" (or any derivation thereof) means any and all hazardous materials, toxic substances, chemicals, contaminants, pollutants, solid, biological, medical wastes or waste, as defined by any Environmental Law, and also includes, but is not limited to, any asbestos, lead paint, mold, radon, petroleum, petroleum products, petroleum by-products, reactive materials, ignitable materials, corrosive materials, hazardous chemicals, hazardous waste, toxic substances, toxic chemicals, chemicals, infectious materials, pesticides, radioactive materials, polychlorinated byphenols, methane, soil vapor (but only to the extent soil vapor is caused by a Release), gas (but only to the extent gas is caused by a Release), and surface and subsurface man-made media left at or underneath the Property, and any other element, compound, mixture, solution, substance, material, waste or the like which may pose a present or potential danger to human health and safety, biota or the environment.

(iii)"Environmental Claim" means any claim based upon any Environmental Laws or relating in any way to Hazardous Materials.

(f)Upon the expiration or earlier termination of the Term, Subtenant shall peaceably quit and surrender to Sublandlord the Subleased Premises (including without limitation all lab benches (including but not limited to those installed as part of Subleased Premises Work), fume hoods, electric, plumbing, heating and sprinkling systems, fixtures and outlets, vaults, paneling, molding, shelving, radiator enclosures, cork, rubber, linoleum and composition floors, ventilating, silencing, air conditioning and cooling equipment therein) broom clean, in the condition in which Subtenant is obligated to maintain the same excepting only ordinary wear and tear and damage by fire or other Casualty, and free of all residual chemical or biological materials; (ii) remove all of Subtenant's property, all autoclaves and cage washers (other than those installed as part of Sublandlord's Work), and, to the extent specified by Sublandlord or Overlandlord in accordance with the Sublease, Alterations made by Subtenant; and (iii) repair any damages to the Subleased Premises or the Building caused by the installation or removal of Subtenant's property and/or such Alterations. Subtenant's

 

 

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[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

obligations under this paragraph shall survive the expiration or earlier termination of this Sublease. On or before the expiration of the Term (or, if this Sublease is earlier terminated, within thirty (30) days after Overlandlord's approval of the Subtenant's Surrender Plan (and if such earlier termination is pursuant to Article 20 of the Overlease, as incorporated herein, Subtenant's use and occupancy of the Subleased Premises during such period shall be governed by Section 21.3 of the Overlease to the extent not inconsistent with the terms of this Sublease), Subtenant shall deliver to Sublandlord and Overlandlord a Surrender Plan and Surrender Report as and when required by, and in accordance with the terms of, the Overlease, and such Surrender Report shall be addressed to Sublandlord in addition to those persons required by the Overlease. Subtenant, at Subtenant's sole cost and expense, shall comply with all requirements of Section 21.1 of the Overlease with respect to the Subleased Premises.

19.Assignment and Sublease. (a) Subtenant shall not assign, mortgage, pledge or otherwise encumber, directly or indirectly, this Sublease, the Subleased Premises or any interest therein, allow any transfer thereof or any lien upon Subtenant's interest by operation of law or otherwise, further sublet the Subleased  Premises or any part thereof, or permit the occupancy  of  the Subleased Premises or any part thereof by anyone other than Subtenant (any and all of the foregoing, collectively a "Transfer"),  without in each instance obtaining  the prior written consent  of Overlandlord and Sublandlord,  which consent of Sublandlord  may be withheld  or conditioned in Sublandlord's sole and absolute discretion except as expressly provided herein. If Sublandlord consents thereto, Sublandlord shall use reasonable efforts to obtain the consent of Overlandlord under the Overlease; provided, however, Subtenant shall reimburse Sublandlord for any costs incurred by Sublandlord with respect thereto.

Notwithstanding anything to the contrary herein contained, Subtenant shall have the right, without obtaining Sublandlord's consent, to make a Transfer (each, a "Permitted Transfer") to (i) an Affiliate, and (ii) a Successor, provided that, in the event of an assignment of Subtenant's interest in this Sublease (except as the result of a merger), such Affiliate or Successor, as the case may be, and Subtenant execute and deliver to Sublandlord a commercially reasonable assignment and assumption agreement whereby such Affiliate or Successor shall agree to be independently bound by and upon all of the covenants, agreements, terms, provisions and conditions set forth in this Sublease on the part of Subtenant to be performed.  Subtenant shall deliver such assignment and assumption agreement to Sublandlord prior to the effective date of such Transfer unless Subtenant is contractually or legally prohibited from doing so, in which event such agreement shall be delivered to Sublandlord within ten (10) days after the effective date thereof. For the purposes hereof, an "Affiliate" shall be defined as an entity that is controlled by, is under common control with, or which controls Subtenant. For the purposes hereof, a "Successor" shall be defined as an entity into or with which Subtenant is merged or with which Subtenant is consolidated or which acquires all or substantially all of Subtenant's stock or assets, or any other corporate reorganization of Subtenant, provided that the surviving entity shall have a net worth and other financial indicators at least as good as Subtenant's as of the date that is three months prior to such event. In addition, occupancy of less than 10% of the Subleased Premises by companies, firms or other entities (each, a "Working Partnership") (i) who are members of a group with whom Subtenant has a contractual or other relationship providing for cooperative or collaborative research or development work, who are or typically would be located by

 

 

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[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

Subtenant in one of its facilities, and/or (ii) in which Subtenant has a beneficial interest and which are actively engaged in research activities using technology, techniques and/or equipment developed by Subtenant, shall not constitute a Transfer for the purposes of this Section 19 and shall be permitted without Sublandlord's consent (and Sublandlord's recapture rights provided in Section 19(b) below shall not apply), but Subtenant shall provide Sublandlord with prior written notice thereof (which notice shall include the number of square feet in occupancy by such entities and such other information reasonably required for financing, insurance and other risk management purposes, but which notice may otherwise be limited in detail to the extent required by applicable confidentiality agreements).

Furthermore, notwithstanding the foregoing to the contrary, Sublandlord shall not unreasonably withhold its consent to an assignment of this Sublease or a sublet of the Subleased Premises, subject to the conditions of the Overlease and this Section 19. Without limitation, it is agreed that Sublandlord's consent to an assignment or sublet shall not be considered unreasonably withheld if: (1) the proposed transferee's financial condition is not reasonably adequate for the obligations such transferee is assuming in connection with the proposed Transfer; (2) the transferee's business or reputation is not suitable for the Main Premises; (3) the transferee is a governmental agency or occupant of the Building; (4) Subtenant is in default beyond any applicable notice and cure period; (5) any portion of the Building or the Main Premises would likely become subject to additional or different laws as a consequence of the proposed Transfer; (6) Sublandlord or its leasing agent has received a proposal from or made a proposal to the proposed transferee to lease space in the Main Premises within six (6) months prior to Subtenant's delivery of written notice of the proposed Transfer to Sublandlord, or (7) and such sublease would result in more than three (3) subleases of the Subleased Premises in the aggregate.

No Transfer shall relieve Subtenant from Subtenant's obligations and agreements hereunder and Subtenant shall continue to be liable as a principal and not as guarantor or surety to the same extent as though no Transfer had been made. Further, no permitted Transfer and no consent by Sublandlord shall be effective unless and until any and all defaults of Subtenant under this Sublease (and, if applicable, any and all defaults of any guarantor of this Sublease or of Subtenant's obligations) shall have been cured. If Subtenant is a partnership or a limited liability company, then any event resulting in a dissolution of Subtenant, any withdrawal or change of the partners or the members owning a controlling interest in Subtenant (including each general partner or manager, as applicable), or any structural or other change having the effect of limiting liability shall be deemed a prohibited Transfer.  If Subtenant is a corporation or a partnership with a corporate general partner, then any event resulting in a dissolution, merger (subject to the provisions above), consolidation or other reorganization of Subtenant (or such corporate general partner), or the sale or transfer or relinquishment of the interest of shareholders who, as of the date of this Sublease, own a controlling interest of the capital stock of Subtenant (or such corporate general partner), shall be deemed a Transfer requiring the consent of Sublandlord.

 

 

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[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

(b)Without limiting Sublandlord's discretion to grant or withhold its consent to any proposed Transfer, if Subtenant, except with respect to a Permitted Transfer or in connection with a Working Partnership, requests Sublandlord's consent to assign this Sublease or sublet all or any portion of the Subleased Premises, Sublandlord shall have the option, exercisable by notice to Subtenant given within thirty (30) days after Sublandlord's receipt of such request, to terminate this Sublease as of the date specified in such notice which shall be not less than thirty (30) nor more than sixty (60) days after the date of such notice for the entire Subleased Premises, in the case of an assignment or subletting of the whole, and for the portion of the Subleased Premises, in the case of a subletting of a portion. In the event of termination in respect of a portion of the Subleased Premises, the portion so eliminated shall be delivered to Sublandlord on the date specified in good order and condition in the manner provided in Sections 9 and 10 hereof at the end of the Term and thereafter, to the extent necessary in Sublandlord’s judgment, Sublandlord, at Subtenant's sole cost and expense, may have access to and may make modification to (but not reduce the square footage of) the Subleased Premises so as to make such portion a self-contained rental unit with access to common areas, elevators and the like. The Monthly Base Rent and Additional Rent shall be adjusted according to the extent of the Subleased Premises for which this Sublease is terminated.

20.Brokers. Sublandlord and Subtenant hereby represent and warrant to each other that it has had no dealings with any real estate broker, agent or finder in connection with the negotiation of this Sublease except Cushman & Wakefield and Newmark Grubb Knight Frank, who represented Sublandlord, and Transwestern RBJ, who represented Subtenant (together, the "Brokers"), and that it knows of no other real estate broker, agent or finder who is entitled to a commission in connection with this Sublease. Each party agrees to indemnify, defend and hold harmless the other party from and against any and all claims, demands, losses, liabilities, judgments, costs and expenses (including, without limitation, reasonable attorneys' fees) with respect to any leasing commission or equivalent compensation alleged to be owing on account of the indemnifying party's dealing with any real estate broker, agent or finder other than the Brokers. Sublandlord shall pay to Brokers a commission for procuring this Sublease pursuant to a separate agreement between Brokers and Sublandlord.

21.Entire Agreement; No Waiver; Modification of Sublease. This Sublease contains all of the covenants, agreements, terms, provisions, conditions, warranties and understandings relating to the leasing of the Subleased Premises and Sublandlord's obligations in connection therewith, and neither Sublandlord nor any agent or representative of Sublandlord has made or is making, and Subtenant in executing and delivering this Sublease is not relying upon, any warranties, representations, promises or statements whatsoever, except to the extent expressly set forth in this Sublease. All understandings, correspondence, negotiations and agreements, written or oral, if any, heretofore had between the parties are merged into this Sublease, which alone fully and completely expresses the agreement of the parties. The failure of Sublandlord to insist in any instance upon the strict keeping, observance or performance of any covenant, agreement, term, provision or condition of this Sublease or to exercise any election herein contained shall not be construed as a

 

 

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[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

waiver or relinquishment for the future of such covenant, agreement, term, provision, condition or election, but the same shall continue and remain in full force and effect. No amendment, waiver or modification of this Sublease or any covenant, agreement, term, provision or condition hereof shall be deemed to have been made unless expressed in writing and signed by Subtenant and Sublandlord and consented to by Overlandlord. No surrender of possession of the Subleased Premises or of any part thereof or of any remainder of the Term of this Sublease shall release Subtenant from any of its obligations hereunder unless accepted by Sublandlord in writing. The receipt and retention by Sublandlord of Rent from anyone other than Subtenant shall not be deemed a waiver of the breach by Subtenant of any covenant, agreement, term or provision of this Sublease, or as the acceptance of such other person as a tenant, or as a release of Subtenant of the covenants, agreements, terms, provisions and conditions herein contained. The receipt and retention by Sublandlord of any Rent with knowledge of the breach of any covenant, agreement, term, provision or condition herein contained shall not be deemed a waiver of such breach.

22.Quiet Enjoyment. Provided no Event of Default exists hereunder, Subtenant shall peaceably and quietly hold and enjoy the Subleased Premises against Sublandlord and all persons claiming by, through or under Sublandlord for the Term herein described, subject to the terms and conditions of this Sublease.

23.Successors and Assigns. If Subtenant shall include more than one person, the obligations of all such persons under this Sublease shall be joint and several and the provisions of this Sublease shall individually apply to each person comprising Subtenant. The obligations of this Sublease shall bind and benefit the permitted successors and assigns of the parties with the same effect as if mentioned in each instance where a party hereto is named or referred to.

 

 

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[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

24.Notices. Any and all communications (each a "Notice") delivered hereunder shall be in writing and shall be personally delivered, or sent by United States mail postage prepaid as registered or certified mail, return receipt requested, or sent by reputable overnight courier service, and delivered to the following address:

 

 

or to such other address and attention as any of the above shall notify the others in writing. Any Notice shall be deemed delivered on the date it is personally delivered (or delivery is refused), the business day after deposited with a national, reputable overnight courier service for next day delivery, or three (3) business days after being sent by United States mail in accordance with the foregoing.

25.Overlandlord's Consent; Default Notices. This Sublease shall be subject to and contingent upon obtaining the written consent of Overlandlord as required by Article 13 of the Overlease in from reasonably satisfactory to Sublandlord. Subtenant shall (i) pay all costs, fees and charges required by Overlandlord to be paid in connection with any consent of Overlandlord required pursuant to this Sublease or the Overlease and (ii) comply, at Subtenant's sole cost and expense, with any other non-monetary requirements or conditions

 

 

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[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

required by Overlandlord, this Sublease or the Overlease in connection with such consent. If such Overlandlord consent, in a form meeting the requirements of this Section 25, has not been obtained by Sublandlord within sixty (60) days following the date this Sublease is executed and delivered by the parties hereto, Subtenant may, within ten (10) days thereafter, terminate this Sublease by written notice to Sublandlord whereupon Sublandlord shall return to Subtenant all sums paid by Subtenant to Sublandlord in connection with Subtenant's execution of this Sublease unless, prior to the expiration of such ten (10) day period, Sublandlord shall deliver the Subleased Premises in the condition required under this Sublease and shall deliver such Overlandlord's Consent in the form and on terms reasonably acceptable to Sublandlord and Subtenant. Sublandlord shall request Overlandlord's consent to this Sublease promptly following Subtenant's delivery to Sublandlord of an executed version of this Sublease. Sublandlord and Subtenant agree to promptly provide the other party with any notices received from Overlandlord of a claimed default with respect to the Subleased Premises.

 

26.Right of Entry. Sublandlord shall have the right to enter the Subleased Premises without abatement of Rent at all reasonable times upon reasonable prior notice to Subtenant (except in emergencies when no advance notice shall be required, but notice shall be given as promptly as possible), (a) to supply any service to be provided by Sublandlord to Subtenant hereunder, (b) during the last 12 months of the Term, to show the Subleased Premises to prospective assignees and subsubtenants, (c) to inspect, alter, improve or repair the Subleased Premises and any portion of the Main Premises, and (d) to introduce conduits, risers, pipes and ducts to and through the Subleased Premises, provided that in exercising any such right, Sublandlord will cause all such conduits, risers, pipes and ducts to be placed above dropped ceilings, within walls, or below floors or in closets, to the extent reasonably practicable, but in no manner reducing the amount of usable space at the Subleased Premises to the extent practicable (and, if not practicable, only in de minimis amounts). In conducting any such activities, Sublandlord shall use reasonable efforts not to disrupt the conduct of, and to minimize any disruption of, Subtenant's business operations; including, without limitation, using drop cloths and customary dust-control measures consistent with construction in occupied first class office space in the Kendall Square, Cambridge submarket. For each of the purposes stated above in this Section 26, Sublandlord shall at all times have and retain a key with which to unlock all of the doors in, upon and about the Subleased Premises, excluding Subtenant's vaults and safes, or special security areas.

 

27.Force Majeure. If Sublandlord or Subtenant is in any way delayed or prevented from performing any obligation (except, with respect to Subtenant, its obligation to timely pay Rent, any obligation set forth in the provisions hereunder pertaining to Subtenant's maintaining insurance policies, or any holdover) due to fire, act of God, governmental act or failure to act, strike, labor dispute, inability to procure materials or any cause beyond its reasonable control whether similar or dissimilar to the foregoing events, then the time for performance of such obligation shall, to the extent permitted by the Overlease, be excused for the period of such delay or prevention and extended for a period equal to the period of such delay or prevention.

 

 

 

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[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

28.Parking. Sublandlord agrees to make available to Subtenant, at no cost to Subtenant, as of the Commencement Date, 33 parking passes (the "Parking Passes") for the unreserved parking of standard passenger automobiles in the parking area serving the Building (the "Parking Area"). Subtenant shall not sell, assign or permit anyone other than Subtenant's personnel to use any of the Parking Passes except in conjunction with a Permitted Transfer under Section 19, above. Throughout the Term, Subtenant shall pay Sublandlord (or at Sublandlord's election, directly to the parking operator) for all of the Parking Passes at the same rates and/or charges Sublandlord is obligated to pay to Overlandlord under the terms set forth in Section 1.4(b) of the Overlease; provided, however, that Sublandlord and Subtenant agree that during the first Sublease Year, the parking charge shall be Two Hundred Seventy-Five Dollars ($275) per Parking Pass per month. If, for any reason, Subtenant shall fail timely to pay the charge for any of said Parking Passes, and if such default continues for five (5) business days after written notice thereof on more than two occasions in any one 12-month period, Subtenant shall have no further right to the Parking Passes for which Subtenant failed to pay the charge under this paragraph and Sublandlord may allocate such Parking Passes for use by other tenants or subtenants of the Premises free and clear of Subtenant's rights under this Section 28.Subtenant's use of any Parking Passes and the parking areas serving the Building are subject to the terms and conditions applicable to Parking Spaces under the Lease. The parking spaces that are utilized by use of the Parking Passes will be on an unassigned, non-reserved basis, shall be subject to such rules and regulations as may be in effect for the use of the Parking Garage from time to time, and may be temporarily relocated to the parking garage located at Technology Square, Cambridge, Massachusetts or such other location as is permitted as provided in Section 1.4 of the Overlease.

 

29.Limit of Sublandlord's Liability. Notwithstanding anything to the contrary contained in this Sublease, neither Sublandlord, its affiliated companies nor its and their partners, members, officers, directors, employees, agents, servants and contractors (collectively, the "Sublandlord Parties"), shall be liable for any losses, costs, damages or injury to person or property or resulting from the loss of use thereof sustained by Subtenant or any Subtenant Party, based on, arising out of, or resulting from, any cause whatsoever, including any due to the Building becoming out of repair, or due to the occurrence of any accident or event in or about the Building, or due to any act or neglect of Overlandlord or any tenant or occupant of the Building or any other person. Notwithstanding the foregoing provision of this Section, Sublandlord shall not be released from liability to Subtenant for any physical injury to any person caused by Sublandlord's negligence or willful misconduct to the extent such injury is not covered by insurance either carried by Subtenant (or such person) or required by this Sublease to be carried by Subtenant; provided that neither Sublandlord nor any Sublandlord Party shall under any circumstances be liable for any exemplary, punitive, consequential or indirect damages (or for any interruption of or loss to business). Notwithstanding anything to the contrary set forth in this Sublease, if Subtenant or any other Subtenant Party is awarded a judgment or other remedy against Sublandlord, the recourse for satisfaction of the same shall be limited in the aggregate in any one year during the term of the Sublease to execution against the aggregate amount of Monthly Base Rent payable in such year.  No other asset of Sublandlord or any other Sublandlord Party shall be available to satisfy, or be subject to, such judgment or other remedy, nor shall any such person be held to have any personal liability for satisfaction or any claim or judgment. Except as expressly set forth in this Sublease, Subtenant shall not be liable for any consequential, indirect or special damages hereunder or damages in the nature of lost profits.

 

 

 

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[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

30.Waiver; Consent to Service; Venue. SUBLANDLORD, SUBTENANT, AND ANY AND ALL STOCKHOLDERS, OFFICERS AND DIRECTORS OF SUBTENANT, EACH WAIVES TRIAL BY JURY IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT IN CONNECTION WITH ANY MATTER ARISING OUT OF OR IN ANYWAY CONNECTED WITH THIS SUBLEASE, THE RELATIONSHIP OF SUBLANDLORD AND SUBTENANT HEREUNDER, SUBTENANT'S USE OR OCCUPANCY OF THE SUBLEASED PREMISES, AND/OR ANY CLAIM OF INJURY OR DAMAGE. SUBTENANT FURTHER WAIVES ANY RIGHT TO RAISE ANY NON­ COMPULSORY COUNTERCLAIM IN ANY ACTION OR PROCEEDING INSTITUTED BY SUBLANDLORD. THIS SUBLEASE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE IN WHICH THE BUILDING IS LOCATED. SUBTENANT CONSENTS TO SERVICE OF PROCESS AND ANY PLEADING RELATING TO ANY SUCH ACTION AT THE SUBLEASED PREMISES OR AT THE ADDRESS OF ITS REGISTERED AGENT OR AT THE ADDRESS SET FORTH IN SECTION 24; PROVIDED, HOWEVER, THAT NOTHING HEREIN SHALL BE CONSTRUED AS REQUIRING SUCH SERVICE AT THE SUBLEASED PREMISES OR AT ALL OF THE FOREGOING ADDRESSES. SUBLANDLORD, SUBTENANT, AND ALL SUCH STOCKHOLDERS, OFFICERS AND DIRECTORS OF SUBTENANT EACH WAIVES ANY OBJECTION TO THE VENUE OF ANY ACTION FILED IN ANY COURT SITUATED IN THE JURISDICTION IN WHICH THE BUILDING IS LOCATED, AND WAIVES ANY RIGHT, CLAIM OR POWER, UNDER THE DOCTRINE OF FORUM NON CONVENIENS OR OTHERWISE, TO TRANSFER ANY SUCH ACTION TO ANY OTHER COURT.

 

31.Subtenant's Authority. Subtenant represents and warrants to Sublandlord that Subtenant is a duly organized corporation, limited liability company or partnership, is in good standing under the laws of the jurisdiction of its formation, is qualified to do business and is in good standing in the jurisdiction in which the Building is located, has the power and authority to enter into this Sublease, and that all corporate, limited liability company or partnership action, as applicable, requisite to authorize Subtenant to enter into this Sublease has been duly taken.

32.Estoppel. Sublandlord hereby represents and warrants to Subtenant that (i) the Overlease is in full force and effect; (ii) Sublandlord has no knowledge of and has received no notice from Overlandlord of default by Sublandlord under the Overlease which default remains uncured on the date hereof; (iii) to Sublandlord's actual knowledge, neither Sublandlord nor Overlandlord is now in default under the Overlease; and (iv) a true, correct and complete copy of the Overlease (with financial and other information redacted) is attached hereto as Schedule 32.

 

33.Signage. Subject to reasonable limits on the number of lines on the directory Overlandlord can provide and all such additional signage in the lobby directory, Sublandlord shall direct Overlandlord to add the name of Subtenant to the lobby directory (but in any event not to exceed Subtenant's Share of such listings) at Sublandlord's sole cost and expense. Subject to Overlandlord's prior written approval, Subtenant may install Building standard

 

 

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[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

signage identifying Subtenant's business at the entrance to the Subleased Premises (which may be located in the elevator lobby of any floor entirely leased by Subtenant) on each floor of the Main Premises occupied by Subtenant for the conduct of its business (and not used primarily for accessory uses such as storage and equipment installations). Subtenant shall otherwise not have the right to place any sign, banner, advertising matter or any other writing or graphics of any kind (including, without limitation, any hand-lettered advertising), and shall not place or maintain any decoration, letter or advertising matter on the glass of any window or door of the Main Premises without first obtaining Overlandlord and Sublandlord's written approval.

 

34.No Option; No Partnership. The submission of this Sublease by Subtenant for examination does not constitute a reservation of or option for the Subleased Premises, and this Sublease shall become effective only when it is executed and delivered by Sublandlord and Subtenant and consented to in writing by Overlandlord in accordance herewith. Nothing contained in this Sublease shall be construed as creating a partnership or joint venture between Subtenant and Sublandlord, or to create any other relationship between the parties other than that of Subtenant and Sublandlord.

 

35.Interpretation; Governing Law. The Schedules and Exhibits attached to this Sublease are a part of this Sublease. Section and subsection headings are for convenience only, and not for use in interpreting this Sublease. If a court finds any provision of this Sublease unenforceable, all other provisions shall remain enforceable, and such unenforceable provision shall be deemed severed from this Sublease. This Sublease is for a lease of space in a building located in the State in which the Building is located and shall be construed and governed in accordance with the laws of the State in which the Building is located.

 

36.Utilities; Waste. (a) Subtenant shall pay to Sublandlord all charges for utilities furnished to the Subleased Premises, as Additional Rent. Subtenant shall make estimated payments to Sublandlord with respect to electricity, natural gas, and water, in amounts reasonably determined by Sublandlord. Check or submetering equipment for natural gas and electricity in the Subleased Premises shall be installed as part of Subleased Premises Work, at Subtenant's sole cost and expense. In addition, Subtenant shall pay for Subtenant's Share of any natural gas measured and billed to Sublandlord by Overlandlord on account of percentage air flow in accordance with Section 9.3 of the Overlease. Such estimated payments for electricity, gas, water and natural gas shall be billed to Subtenant no more frequently than monthly, shall be payable within 20 days following invoice, and shall be reconciled annually together with, and subject to the provisions governing, the reconciliation of Operating Costs (with reconciliations for electricity and gas being based on the reading of the aforementioned meters by Sublandlord or Overlandlord, as applicable).

 

(b)Subtenant shall arrange and pay for its own janitorial and trash removal services. Sublandlord shall provide a dumpster and/or trash compactor in the loading dock area for the disposal of non-hazardous and non-controlled substances, the cost of which shall be included in Operating Costs.

 

 

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[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

37.Remedies. The rights and remedies mentioned in this Sublease are in addition to, and do not deprive a party of, any other rights at law or in equity.

 

38.Counterparts. To facilitate execution, this Sublease may be executed in as many counterparts as may be required, and it shall not be necessary that the signature of each party, or that the signatures of all persons required to bind any party, appear on each counterparty; but it shall be sufficient that the signature of each party, or that the signatures of the persons required to bind any party, appear on one or more of such counterparties. All counterparts shall collectively constitute a single agreement.

 

39.Confidentiality.

 

(a)In connection with this Sublease, Sublandlord has delivered and/or will deliver to Subtenant from time to time certain information about the Main Premises (such information whether furnished before or after the date of this Sublease, whether oral or written, and regardless of the manner in which it is furnished, is collectively hereinafter referred to as the "Sublandlord's Proprietary Information"). Sublandlord's Proprietary Information does not include, however, information which (1) is or becomes generally available to the public other than as a result of a disclosure in violation of this Section by Subtenant or Subtenant Patties (as defined below) (2) was available to Subtenant on a non-confidential basis prior to its disclosure by Sublandlord; or (3) becomes available to Subtenant on a non-confidential basis from a person other than Sublandlord who is not to the knowledge of Subtenant or Subtenant Parties otherwise bound by a confidentiality agreement with Sublandlord, or is otherwise not under an obligation to Sublandlord not to transmit the information to Subtenant.

 

Subtenant hereby covenants and agrees (A) to keep all Sublandlord's Proprietary Information confidential; (B) not to disclose or reveal any Sublandlord's Proprietary Information to any person other than those persons, including its affiliates' employees, agents and representatives, whose duties and responsibilities reasonably require that Sublandlord's Proprietary Information be disclosed to them in connection with this Sublease (such persons are hereinafter referred to as "Subtenant Parties"); (C) to use commercially reasonable efforts to cause Subtenant Parties to observe the terms of this Section (but in any event Subtenant shall be responsible for any disclosure of Sublandlord's Proprietary Information by a Subtenant Party in violation of this Section); and (D) not to use any Sublandlord's Proprietary Information for any purpose other than in connection with this Sublease.

(b)In connection with this Sublease, Subtenant may deliver to Sublandlord from time to time certain information about Subtenant (such information whether furnished before or after the date of this Sublease, whether oral or written, and regardless of the manner in which it is furnished, is collectively hereinafter referred to as the "Subtenant's Proprietary Information"). Subtenant's Proprietary Information does not include, however, information

 

 

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[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

which (1) is or becomes generally available to the public other than as a result of a disclosure in violation of this Section by Sublandlord or any Sublandlord Parties, (2) was available to Sublandlord on a non­confidential basis prior to its disclosure by Subtenant; or (3) becomes available to Sublandlord on a non-confidential basis from a person other than Subtenant who is not, to the knowledge of Sublandlord or any Sublandlord Parties, otherwise bound by a confidentiality agreement with Subtenant, or is otherwise not under an obligation to Subtenant not to transmit the information to Sublandlord.

 

Sublandlord hereby covenants and agrees (A) to keep all Subtenant's Proprietary Information confidential; (B) not to disclose or reveal any Subtenant's Proprietary Information to any person other than those persons, including its affiliates' employees, agents and representatives, whose duties and responsibilities reasonably require that Subtenant's Proprietary Information be disclosed to them in connection with this Sublease; (C) to use commercially reasonable efforts to cause Sublandlord Parties to observe the terms of this Section (but in any event Sublandlord shall be responsible for any disclosure of Subtenant's Proprietary Information by a Sublandlord Party in violation of this Section); and (D) not to use any Subtenant's Proprietary Information for any purpose other than in connection with this Sublease.

 

[signature page follows]

 

 

 

 

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[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

IN WITNESS WHEREOF, Sublandlord and Subtenant have duly executed this Sublease as of the day and year first above written.

 

 

 

 

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[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

Schedule 2(a)

Floor Plans Of Subleased Premises

 

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[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

Schedule 2(b)

Common Areas

 

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[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

Schedule 3(c)

 

Sublease Commencement Date and Delivery Date Acknowledgement

 

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[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

Schedule 4(b)

Work Letter

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[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

Schedule 6(a)

Sublandlord Services

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[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

Schedule 6(c)

Special Systems

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[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

Schedule 7(a)

Form of Letter of Credit

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[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

Schedule 32

Copy of the Overlease

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[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

Copy of Sub-Sublease

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