License Agreement, by and between Yumanity Therapeutics, Inc. and MIL 40G LLC, dated as of February 5, 2020
This License Agreement, made and entered into as of February 5, 2020 (Agreement), is by and between Yumanity Therapeutics, Inc., a Delaware corporation, registered to do business in Massachusetts, and having a place of business located at 790 Memorial Drive, #2C, Cambridge, MA 02139 (Licensee) and MIL 40G, LLC a Delaware limited liability company having a place of business located at 40 Guest Street, Brighton, MA 02135 (Licensor).
WHEREAS, Licensor, or its affiliate, has leased certain space located at 40 Guest Street, Brighton, MA 02135 (the Building) through a lease agreement (the Lease) between Licensor and Courtside Realty, LLC (Landlord); and
WHEREAS, Licensee desires to use certain space and services, as set forth below, for research and development, laboratory research and office use.
For good and valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged, accepted and agreed to, the parties agree as follows:
License Description. Licensor grants to Licensee the following (A) and (B), of which shall constitute the Licensees license (the License), solely to, (i) use as office and laboratory space consistent with current zoning for the Building and all applicable laws; (ii) conduct Licensees business; and (iii) collaborate with Licensors staff and other licensees in accordance with this Agreement: (A) a non-transferable, non-assignable license to use Lab Suites F, G and H more specifically identified in the shaded portion of the floor plan attached to this Agreement as Exhibit 1 (Lab Suites), and (ii) use Office Suites F and G, more specifically identified in the shaded portion of the floor plan attached to this Agreement as Exhibit 1 (Office Suites)(Lab Suites and Office Suites are collectively the Licensed Premises) and (B) a non-transferable, non-exclusive, non- assignable license to use any common areas (Shared Premises), subject to Licensors reasonable rules and restrictions. Licensor shall deliver the Licensed Premises turnkeyed, at Licensors expense, per a mutually agreed upon delivery condition and inclusive of all elements of the attached Licensee space program and based on building standard materials. Licensor shall deliver the Licensed Premises fully furnished with cabling and wiring included. Licensee shall have access to the furniture in the Licensed Premises for the entire Term at no additional cost; provided, however, that Licensor shall not be required to provide any furniture above and beyond what is explicitly set forth herein. Licensor shall deliver the Licensed Premises with all systems exclusively servicing the Licensed Premises in good working condition and suitable for laboratory uses. Licensor will deliver the Licensed Premises with code compliant demising walls and common area corridors, all as described in plans and specifications to be attached to this License as Exhibit 4. Licensee reserves the right to perform an independent due diligence of Buildings base building infrastructure, provided Licensor is present and provided such due diligence is agreed upon by the Landlord and in accordance with the Lease. Subject to the delivery requirements set forth in this License, Licensee shall accept the Licensed Premises and Shared Premises in their as-is conditions. Licensor shall maintain HVAC, electrical, life safety and plumbing systems specifically servicing the Licensed Premises throughout the Term. Licensor shall remain responsible for all of the obligations of Licensor, as tenant, pursuant
|to the terms of the Lease and shall take commercially reasonable efforts to cause the Landlord to perform its obligations pursuant to the Lease. Licensor shall have no obligation to alter, repair or otherwise prepare the Licensed Premises for Licensees use or to pay for, or provide any, improvements to the Licensed Premises except as expressly provided herein. Licensee shall not use the Licensed Premises or Shared Premises for any use other than the foregoing, including but not limited to medical care or human clinical trials, without first obtaining written permission from Licensor, which Licensor may withhold in its sole discretion.|
Scope of License. The License shall not include access to any additional office or laboratory space in the Building. Licensor retains all of the rights and privileges as the property owner that are not inconsistent with the provisions of this Agreement. Licensee understands and agrees that other licensee(s) may jointly occupy portions of the Building, not including the Licensed Premises, which shall be exclusive to the Licensee, but including but not limited to the Shared Premises. Licensee agrees that, other than the Licensed Premises, use of any other portion of the Building shall not be exclusive to Licensee. Sections 10, 11 and 13 below shall apply to any and all Claims (as defined below) arising out of, or in connection with, any other licensee(s), persons or entities using or occupying the Building.
Occupants. The License shall only grant Licensee, and no more than 88 (eighty-eight) of Licensees members, employees or agents (collectively, Occupants), access to the Licensed Premises and Shared Premises.
Right of First Offer. The Licensee shall have a one-time Right of First Offer (ROFO) on all fourth (4th) floor suites. Such ROFO shall only apply, however, after (i) such suite(s) has/have been licensed to a third party and (ii) such third-party license has lapsed or been terminated.
Term and Termination.
Term. Unless terminated earlier in accordance with this Section 2, the term (Term) of this Agreement shall commence on April 1, 2020 (Term Commencement Date) and expire on March 31,2023 (Expiration Date). Under no circumstance shall Licensor be liable to Licensee for failure to provide access to the Licensed Premises or Shared Premises on or before April 1, 2020; provided, however, that if Licensor is unable to provide Licensee access to the Licensed Premises, including but not limited to Biosafety Level 1 and 2 permits, on April 1,2020, then the Term Commencement Date, Expiration Date, and Initial License Fee Commencement Date shall be extended by the number of days Licensor is unable to provide access to the Licensed Premises, and the License Fee Commencement Date shall be extended by one and one-half day for each day that Licensor is unable to provide access to the Licensed Premises. Licensee shall have the option to extend the Term of the License Agreement for total of three (3), one (1) year periods (Extension Term), provided that Licensee gives Licensor nine (9) months advance written notice prior to the applicable Expiration Date. The License Fee during each Extension Term shall be set at fair market value, which shall be determined in accordance with industry standards and shall be comparable to similar-sized spaces within the Boston market.
Termination. Licensor may terminate this Agreement immediately for cause by giving written notice to Licensee specifying the cause. Cause shall include, but is not limited to: (i) Licensees violation of this Agreement or any provisions contained in the Lease; (ii) Licensees failure to comply with any covenants contained herein; or (iii) Licensees use of the Licensed Premises or Shared Premises in violation of any applicable laws or rules and procedures promulgated by Licensor or Landlord. Excepting instances in which the cause threatens the health or safety of the Building or its occupants (in which no advance notice is required) as determined in good faith, or the cause arises out of Licensees failure to pay any sums hereunder (in which case Licensee shall be permitted to cure such failure within five (5) days of notice from Licensor to Licensee), Licensee shall be in default hereunder if Licensee does not cure any cause set forth above within fifteen (15) days of written notice from Licensor to Licensee. Upon the occurrence of any of the foregoing, and at any time thereafter, with or without notice or demand and without limiting Licensor in the exercise of any right or remedy that Licensor may have, Licensor may do any or all of the following by written notice to Licensee or by any lawful means, (A) terminate Licensees access to the Licensed Premises, or (B) terminate the License. In either instance, Licensee shall immediately surrender the Licensed Premises to Licensor. In such event, Licensor shall have the immediate right to re-enter and remove all persons and property from the Licensed Premises and Shared Premises, and such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Licensee, without being deemed guilty of trespass or becoming liable for any loss or damage that may be occasioned thereby. In the event that Licensor shall elect to so terminate this License, then Licensor shall be entitled to recover from Licensee all direct and indirect damages incurred by Licensor by reason of Licensees default including, but not limited to, recovery of any brokers fee paid by Licensor in relation to this Agreement and all reasonable attorneys fees. Upon termination of this Agreement, the License shall expire and Licensee shall immediately vacate the Licensed Premises and Shared Premises. Under no circumstances shall Licensee, Licensor or Landlord be liable for any alleged, purported, consequential or indirect damages resulting from Licensor or Landlord terminating this Agreement; provided, however, that Licensee may be liable for consequential or indirect damages arising out of its (x) failure to comply with, or violation of, Section 8 below or (y) failure to timely vacate the Licensed Premises in accordance with this Section if and only if Licensees possession continues for thirty (30) days after written notice from Licensor, which notice shall state that Licensee shall be liable for consequential and indirect damages if Licensee remains in possession of the Licensed Premises after such thirty (30) day period.
Base Fee. Licensee shall pay a monthly license fee equal to $167,282.50 for the first four (4) months of the Term (Initial License Fee), which Licensee shall pay in advance on or before the first day of each and every month during the Term by electronic payment to Licensor and shall commence on April 1,2020 (the Initial License Fee Commencement Date). Thereafter, Licensee shall pay a monthly license fee equal to $334,565.00 per month for the remainder of the first year of the Term (License Fee) which Licensee shall pay in advance on or before the first day of each and every month during the Term by electronic payment to Licensor commencing on August 1, 2020 (the License Fee Commencement Date). The License Fee shall be subject to a three percent (3%) increase upon each anniversary of the Term Commencement Date.
Late Fee. If any payment of the Initial License Fee and/or License Fee, or any other payment due under this Agreement, is not received by Licensor on or before the first day of each month, or when otherwise due, and is not received by Licensor for a period of five (5) days after written notice thereof from Licensor to Licensee, Licensee shall pay to
|Licensor a late payment charge equal to five percent (5%) of the amount of such delinquent payment, in addition to any outstanding License Fee or any other payment due under this Agreement then owing. Thereafter, Licensee shall pay eighteen percent (18%) interest on any outstanding License Fee or other payment due under this Agreement that remains unpaid; such interest shall accrue beginning the date such payment is due until the date such payment is actually paid.|
Additional Fees. Licensee shall have the right to forty-two (42) non-revocable parking spaces adjacent to the Building at the prevailing monthly parking rate for the Building, which is subject to change. The current monthly parking for the Building is One Hundred and Eighty Dollars ($180) per month. Additional parking may be available and is subject to Licensors discretion.
Security Deposit. Licensee shall be required to pay a Security Deposit equal to $354,940.01 (Security Deposit). The purpose of the Security Deposit is to guarantee the full, prompt and faithful performance by Licensee of all of the terms, conditions, covenants, agreements, warranties and provisions of this Agreement to be performed, fulfilled or observed by Licensee hereunder, including but not limited to the payment of the License Fee and other charges. If Licensee breaches any term or condition of this Agreement, said Security Deposit or any part thereof may be used to pay any such payment or perform any obligations of the Licensee, and the Licensee shall immediately replace the amount of the Security Deposit so used. Said Security Deposit may be co-mingled with the Licensors other funds, need not be kept in a separate account, and Licensor shall not be required to pay interest on same. Licensor shall promptly return the balance of the Security Deposit at the end of Term, as extended from time to time. Licensor, from time to time, may transfer the Security Deposit to any mortgagee or any grantee or grantees to be held by such mortgagee, grantee or grantees as the Security Deposit hereunder on the above terms, and upon such transfer to such mortgagee, grantee or grantees, Licensor thereupon shall be relieved from all further liability to the Licensee with respect to the Security Deposit, and Licensee thereafter shall look only to such mortgagee, grantee or grantees for the return of the Security Deposit.
Initial Payment. Licensee shall pay, immediately upon executing this Agreement, an amount equal to a portion of the last months license fee ($347,359.35), and the Security Deposit ($354,940.01), and the Parking Fees (as defined below) associated with Licensees Parking Spaces (as defined below). As such, Licensee shall pay a total of $702,299.36, plus the aforementioned Parking Fees, on or before the execution of this Agreement.
Service Agreement. Licensor agrees to provide to Licensee, during the entire Term of this Agreement, the services set forth in the Service Agreement attached hereto as Exhibit 2. The License Fee shall cover and include the cost of the services set forth in the Service Agreement and, unless the scope of services requested by Licensee exceed those set forth in the Service Agreement, Licensee shall not be assessed any additional fees for services contained in the Service Agreement. The Service Agreement shall be governed by the terms of this Agreement and if there is any conflict between the covenants and representations contained in this Agreement and the Service Agreement, the terms of this Agreement shall prevail and be binding upon Licensor and Licensee. Licensor shall not be liable for any failure to provide the services set forth in the Service Agreement to the extent such failure is beyond Licensors reasonable control.
Common Areas. Licensee hereby acknowledges that other licensees and/or occupants are occupying or may in the future occupy other portions of the Building. Licensees use of the Licensed Premises, and access to and use of the common areas and any other services in connection with the Licensed Premises or this Agreement, shall be subject to any and all rules and procedures reasonably promulgated by Licensor and/or Landlord and delivered to Licensee from time to time. Licensees compliance with such rules and procedures constitutes a material inducement to Licensors willingness to enter into this Agreement; any violation thereof shall constitute a material breach of this Agreement.
Parking. During the Term, Licensee shall have a non-exclusive, irrevocable license to use 42 (forty-two) unreserved parking spaces adjacent to the Building at the current monthly parking rate (Licensees Parking Spaces). Licensee shall have no right to elect to reduce its number of Licensees Parking Spaces and shall be responsible for the Parking Fees (defined below) for such spaces regardless of whether its Occupants use Licensees Parking Spaces. Licensee shall pay, in addition to the License Fee, monthly parking fees equal to the prevailing rates for the Building (Parking Fees) and shall pay such Parking Fees to Licensor at the time each License Fee payment is due. Additional parking may be available and is subject to Licensors discretion. Parking rate is subject to change.
Modifications to Licensed Premises. Licensee shall not make any modification to the HVAC, structural, telecommunications, electrical, life safety or plumbing systems of the Licensed Premises without Licensors prior written approval, which approval may be withheld or conditioned in Licensors sole discretion. For modifications outside of the scope of the foregoing sentence, Licensee shall not make such modifications to the Licensed Premises without Licensors prior written approval, which approval may be not be unreasonably withheld, conditioned, or delayed. Licensee shall bear the cost of any approved modifications to the Licensed Premises. All articles of personal property, and all business and trade fixtures, machinery and equipment, cabinet work, furniture and movable partitions, if any, paid for or installed by Licensee in the Licensed Premises will be and remain the property of Licensee and may be removed by Licensee at any time, provided that Licensee, at its expense, shall repair any damage to the Licensed Premises caused by such removal or by the original installation. Licensee shall remove all of Licensees personal property at the expiration of the Term of this Agreement or sooner termination of this Agreement, in which event the removal shall be done at Licensees expense and Licensee, prior to the end of the Term of this Agreement or upon sooner termination of this Agreement, shall repair any damage to the Licensed Premises caused by its removal.
Hazardous Materials. Licensee shall also have the right to store in the Licensed Premises up to its pro rata share of the quantity of Hazardous Materials allowed in the control zone within which the Licensed Premises are located, subject to local, state and federal law. Licensee shall strictly comply with all Environmental Laws, and all provisions set forth in the Lease, to the extent such provisions relate to the Licensed Premises during the Term of this Agreement. For purposes hereof, Environmental Laws shall mean all laws, statutes, ordinances, rules and regulations of any local, state or federal governmental authority having jurisdiction concerning environmental, health and safety matters, including but not limited to any discharge by Licensee or Licensees Occupants into the air, surface water, sewers, soil or groundwater of any Hazardous Material (defined below) whether within or outside the Licensed Premises, including, without limitation (i) the Federal Water Pollution Control Act, 33 U.S.C. Section 1251 et seq., (ii) the Federal Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq., (iii) the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601 et seq., (iv) the Toxic Substances Control Act of 1976,15 U.S.C. Section 2601 et seq., and (v) Chapter 2 IE of the General Laws of Massachusetts. Licensee, at its sole cost and expense, shall comply with (a) Environmental Laws. Licensee, at its sole cost and expense, shall comply with (a) Environmental Laws, and (b) any rules, requirements and safety procedures of the Massachusetts Department of Environmental Protection,
|the city in which the Building is located, and any insurer of the Building or the Licensed Premises with respect to Licensees use, storage and disposal of any Hazardous Materials. Notwithstanding anything in this Agreement to the contrary, Licensee shall have no liability to Licensor or responsibility under this Agreement for any Hazardous Materials in, on, under or about the Licensed Premises that were not released, discharged, stored or introduced by Licensee or its agents. Licensee understands and agrees that Licensor must decontaminate the Licensed Premise prior to Licensee vacating same and therefore Licensee shall fully cooperate with Licensor in the aforementioned decontamination, which may include Licensee ceasing its operations and/or removing personal property prior to the expiration of the Term. The term Hazardous Material means asbestos, oil or any hazardous, radioactive or toxic substance, material, waste or petroleum derivative which is or becomes regulated by any Environmental Law or which is designated as a hazardous substance, hazardous material, oil, hazardous waste or toxic substance under any Environmental Law. Licensee shall follow all of Licensors Environmental Health and Safety (EH&S) guidelines and requirements that have been provided to Licensee, which may be modified from time to time by Licensor provided that such modifications do not materially change Licensees rights hereunder.|
Fire, Other Casualty; Eminent Domain. In the event of a fire or other casualty affecting the Building or the Licensed Premises, or of a taking of all or a part of the Building or Licensed Premises under the power of eminent domain: (i) Licensor shall not have any obligation to repair or restore the Licensed Premises or any alterations or personal property; (ii) Licensee shall be entitled only to a proportionate abatement of the License Fee during the time and to the extent the Licensed Premises are unfit for the purposes permitted under this Agreement and not used by Licensee as a result thereof; (iii) Licensee shall not, by reason thereof, have a right to terminate this Agreement unless the Lease shall be terminated; and (iv) Licensor and Landlord reserve the right to terminate this Agreement in connection with any right granted to either Licensor or Landlord under the Lease whether or not the Licensed Premises is damaged or the subject of a taking. In the event Licensor or Landlord exercises the right to terminate the Lease as the result of any such fire, casualty or taking, (a) Licensor shall provide Licensee with a copy of the relevant termination notice and this Agreement shall terminate on the date upon which the Lease terminates and (b) Licensee shall immediately pay to Licensor all of Licensees insurance proceeds relating to all alterations (but not to Licensees personal property).
Limit of Liability. Notwithstanding anything to the contrary contained in this Agreement, Landlord, Licensor, their respective, members, officers, directors, employees, agents, servants, lenders, mortgagees, ground lessors beneficiaries and contractors (collectively, the Licensor Parties), shall not be liable for any damages or injury to person or property or resulting from the loss of use thereof sustained by Licensee or anyone having claims through or on behalf of Licensee, 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 any tenant or occupant of the Building or any other person. Notwithstanding the foregoing provision of this Section, Licensor Parties shall not be released from liability to Licensee for any physical injury to any natural person caused by Licensor Parties gross negligence or willful misconduct to the extent such injury is not covered by insurance either carried by Licensee (or such person) or required by this Agreement to be carried by Licensee; provided that Licensor Parties shall not, under any circumstances, be liable for any exemplary, punitive, consequential or indirect damages (or for any interruption of or loss to business).
Waiver of Claims. Licensee hereby releases and waives any and all claims against the Licensor Parties for injury or damage to person, property or business of every kind, nature and description, sustained in or about the Building or the Licensed Premises by Licensee or anyone claiming under Licensee, other than by reason of gross negligence or willful misconduct of the Licensor Parties and except in any case which would render this release and waiver void under applicable law.
Insurance. See Insurance Requirements attached hereto as Exhibit 3.
Subrogation. Licensee and its insurers hereby waive any and all rights of recovery or subrogation against the Licensor Parties with respect to any Claims (as defined below) howsoever caused, that are covered, or should have been covered, by valid and collectible insurance, including any deductibles or self-insurance maintained thereunder. If necessary, Licensee agrees to endorse the required insurance policies to permit waivers of subrogation as required hereunder and hold harmless and indemnify the Licensor Parties for any loss or expense incurred as a result of a failure to obtain such waivers of subrogation from insurers. Such waivers shall continue so long as Licensees insurers so permit. Any termination of such a waiver shall be by written notice to Licensor. Licensee, upon obtaining the policies of insurance required or permitted hereunder, shall give notice to its insurance carriers that the foregoing waiver of subrogation is contained in herein. If such policies shall not be obtainable with such waiver or shall be so obtainable only at a premium over that chargeable without such waiver, then Licensee shall notify Licensor of such conditions.
Assumption of Risk. Licensee assumes the risk of damage, and shall be liable for any damage caused to, any fixtures, goods, inventory, merchandise, equipment and leasehold improvements, and the Licensor Parties shall not be liable for injury to Licensees business or any loss of income therefrom, relative to such damage. Licensee shall, at Licensees sole cost and expense, carry such insurance as Licensee desires for Licensees protection with respect to personal property of Licensee or business interruption.
Indemnification. Licensee shall indemnify, defend (by counsel acceptable to Licensor), release, protect and hold the Licensor Parties harmless from and against any and all demands, claims, liabilities, losses, costs, expenses, actions, causes of action, damages, suits or judgments, and all reasonable expenses (including reasonable attorneys fees, charges and disbursements, regardless of whether the applicable demand, claim, action, cause of action or suit is voluntarily withdrawn or dismissed) incurred in investigating or resisting the same (collectively, Claims) of any kind or nature that arise before, during or after the Term, arising out of or related to: (i) the use or occupancy of the Licensed Premises or Shared Premises by Licensee or its Occupants or anyone claiming by, through or under Licensee; (ii) the failure by Licensee or anyone claiming by, through or under Licensee to comply with any term, condition, or covenant of this Agreement or the Lease, including, without limitation, Licensees obligation to surrender the Licensed Premises in the condition herein required; (iii) the negligence or willful misconduct of Licensee, its agents or anyone claiming by, through or under Licensee; (iv) the existence of Hazardous Materials on, under or about the Licensed Premises to the extent caused, stored, released, discharged or introduced by Licensee or its agents; (v) the death of or injury to any person or damage to any property in the Licensed Premises; or (vi) the death of or injury to any person or damage to any property on or about the Building to the extent caused by the negligence, recklessness or willful misconduct of Licensee or its agents. Notwithstanding the foregoing, Licensee shall not, under any circumstances, be liable for any exemplary, punitive, consequential or indirect damages (or for any interruption of or loss to business), except as set forth in Section 2(b).
No Assignment. Licensee shall not assign, encumber or transfer this Agreement, or any part of it, or its right or interest in it, without Licensors prior written approval, which shall not be unreasonably conditioned, withheld, or delayed. Notwithstanding the foregoing, Licensee may sublicense or assign this Agreement to its affiliates, subsidiaries or successors resulting from an acquisition, merger, spin-off or consolidation (Related Party) provided that: (a) Licensee gives Licensor at least thirty (30) days advanced written notice and (b) Licensee remains liable for its obligations hereunder. Licensee shall not in any way obstruct or interfere with the rights of other licensees, occupants or users of the Building, nor shall it permit its employees, representatives, or contractors to do so. Licensor may assign this Agreement.
Prohibited Transfers. Notwithstanding any other provision contained in this Agreement to the contrary, Licensee shall not knowingly, after reasonable inquiry, transfer or permit the transfer of any legal or beneficial interest in Licensee to, or assign, sublicense or otherwise transfer all or any portion of its interest under this Agreement or in all or any portion of the Licensed Premises to, or enter into any sublicense or other use or occupancy agreement to, any:
Person (or any Person whose operations are directed or controlled by a Person) that has been convicted of or has pleaded guilty in a criminal proceeding to a felony or that is an ongoing target of a grand jury investigation convened pursuant to applicable statutes concerning organized crime;
Person organized in or controlled from a country, the activities with respect to which are regulated or controlled pursuant to the following laws and the regulations or executive orders promulgated thereunder: (A) the Trading with the Enemy Act of 1917, 50 U.S.C. App. §1, et seq., as amended; (B) the International Emergency Economic Powers Act of 1976, 50 U.S.C. §1701, et seq., as amended; or (C) the Anti-Terrorism and Arms Export Amendments Act of 1989, codified at Section 6(j) of the Export Administration Act of 1979, 50 U.S.C. App. §2405W, as amended; or
Person with whom Landlord or Licensor is restricted from doing business under either (A) Executive Order No. 13224 on Terrorist Financing (effective September 24, 2001 (as amended or supplemented from time to time, the Executive Order), or (B) the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Public Law 10756; as amended, from time to time, the Patriot Act), or (C) the regulations of the United Stated Department of the Treasury Office of Foreign Assets Control (including, without limitation, those Persons named on the list of Specially Designated Nationals and Blocked Persons as modified from time to time), or other governmental action; or
Affiliate of any of the Persons described in the preceding paragraphs (i), (ii) or (iii).
As used herein, Person shall mean any individual or entity, and the heirs, executors, administrators, legal representatives, successors and assigns of such Person where the context so admits; Affiliate shall mean, with respect to any Person, (i) in the case of any such Person which is an Entity, any partner, shareholder,
member or other owner of such Entity, provided that such partner, shareholder, member or other owner owns more than fifty percent (50%) of the Equity Interests of such Entity, and (ii) any other Person which is a Parent, a Subsidiary, or a Subsidiary of a Parent with respect to such Person or with respect to one or more of the Persons referred to in the preceding clause (i); Equity Interest shall mean with respect to any Entity, (i) the legal (other than as a nominee) or beneficial ownership of outstanding voting or non-voting stock of such Entity if such Entity is a business corporation, a real estate investment trust or a similar entity, (ii) the legal (other than as a nominee) or beneficial ownership of any partnership, membership or other voting or non-voting ownership interest in a partnership, joint venture, limited liability company or similar entity, (iii) a legal (other than as a nominee) or beneficial voting or non-voting interest in a trust if such Entity is a trust and (iv) any other voting or nonvoting interest that is the functional equivalent of any of the foregoing; Parent shall mean, with respect to any Subsidiary, any Person which owns directly or indirectly through one or more Subsidiaries the entire Equity Interest in such Subsidiary; and Subsidiary shall mean, with respect to any Parent, any Entity in which a Person owns, directly or indirectly through one or more Subsidiaries, the entire Equity Interest in such Subsidiary.
Signage. Licensor, at its sole cost, shall provide building standard signage on all tenant directories at the Building as well as at the entrance to the Licensed Premises, to the extent permitted under the terms of the Lease.
Attorneys Fees. In the event of any litigation or arbitration between Licensee and Licensor, whether based on contract, tort or other cause of action or involving bankruptcy or similar proceedings, in any way related to this Agreement, the non-prevailing party shall pay to the prevailing party all reasonable attorneys fees and costs and expenses of any type, without restriction by statute, court rule or otherwise, incurred by the prevailing party in connection with any action or proceeding (including arbitration proceedings, any appeals and the enforcement of any judgment or award), whether or not the dispute is litigated or prosecuted to final judgment. The prevailing party shall be determined based upon an assessment of which partys major arguments or positions taken in the action or proceeding could fairly be said to have prevailed (whether by compromise, settlement, abandonment by other party of its claim or defense, final decision after any appeals, or otherwise) over the other partys major arguments or positions on major disputed issues. Any fees and cost incurred in enforcing a judgment shall be recoverable separately from any other amount included in the judgment and shall survive and not be merged in the judgment.
Authority. Each person executing this Agreement on behalf of a party hereto represents and warrants that he or she is authorized and empowered to do so and to thereby bind the party on whose behalf he or she is signing.
Brokerage. Licensee warrants and represents that Licensee has dealt with no broker in connection with the consummation of this Agreement other than CBRE (Broker), and, in the event of any brokerage claims against Licensor predicated upon prior dealings with Licensee, Licensee agrees to defend the same and indemnify Licensor against any such claim (except any claim by Broker).
Captions. All captions and headings in this Agreement are for the purposes of reference and convenience and shall not limit or expand the provisions of this Agreement.
Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which taken together shall comprise but a single instrument.
Entire Agreement. This Agreement contains all of the covenants, conditions and agreements between the parties concerning the Licensed Premises, and shall supersede any and all prior correspondence, agreements and understandings concerning the Licensed Premises, both oral and written. No addition or modification of any term or provision of this Agreement shall be effective unless set forth in writing and signed by both Licensor and Licensee.
Notices. Any notice required or permitted under this Agreement shall be effective if in writing and delivered to the other party at the following address.
|MIL 40G, LLC||Yumanity Therapeutics, Inc.|
|40 Guest Street||790 Memorial Drive, #2C|
|Brighton, MA 02135||Cambridge, MA 02139|
|Attn: Amrit Chaudhuri|| |
Attn: Paulash Mohsen
|After occupancy of the Licensed Premises:|
|40 Guest Street|
|Brighton, MA 02135|
|Attn: Paulash Mohsen|
Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts. Licensee hereby consents to the personal jurisdiction and venue of any state or federal court located in Suffolk County Massachusetts, and any successor court, and the service or process by any means authorized by such court.
Exhibits. All exhibits and any schedules or riders attached to this Agreement are incorporated herein by this reference and made a part hereof, and any reference in the body of the Agreement or in the exhibits, schedules or riders to the Agreement shall mean this Agreement, together with all exhibits, schedules and riders.
Waiver of Trial by Jury. LICENSEE HEREBY WAIVES ANY AND ALL RIGHTS IT MAY HAVE UNDER APPLICABLE LAW TO TRIAL BY JURY WITH RESPECT TO ANY DISPUTE WITH ANY LICENSOR PARTIES ARISING DIRECTLY OR INDIRECTLY IN CONNECTION WITH THIS AGREEMENT OR THE LICENSED PREMISES. NOTHING CONTAINED IN THIS SECTION SHALL BE CONSTRUED AS A WAIVER BY LICENSOR OR LANDLORD OF ANY OF ITS RIGHTS TO TRIAL BY JURY IN CONNECTION WITH THE LEASE OR THIS AGREEMENT FOR ANY CLAIMS OR CAUSES OF ACTION SO TRIABLE.
Successors and Assigns. Subject to the provisions of this Agreement relating to assignment and subletting, this Agreement shall be binding upon, and shall inure to the benefit of the parties respective representatives, successors and assigns.
Relationship of Parties. Nothing in this Agreement shall be deemed to create any joint venture or principal-agent relationship or partnership between any of the parties hereto, and no party is authorized to, and no party shall, act toward third parties or the public in any manner that would indicate any such relationship.
Access. Landlord and Licensor reserve the right to enter the Licensed Premises upon reasonable prior written or oral notice to Licensee (except that in case of emergency no notice shall be necessary) in order to inspect the Licensed Premises and/or the performance by Licensee of the terms of this Agreement or to exercise Licensors rights or perform Licensors obligations hereunder.
LICENSEE UNDERSTANDS AND ACKNOWLEDGES THAT RIGHTS UNDER THIS AGREEMENT ONLY CONSTITUTE A LICENSE FOR USE OF THE LICENSED PREMISES AND DO NOT INVOLVE THE GRANT OF ANY INTEREST IN REAL ESTATE. LICENSEE SPECIFICALLY DISCLAIMS ANY RIGHTS TO SUMMARY PROCESS AND, PROVIDED THAT LICENSOR COMPLIES WITH ALL OBLIGATIONS (INCLUDING WITHOUT LIMITATION NOTICE AND CURE REQUIREMENTS) HEREUNDER, EXPLICITLY PERMITS LICENSOR TO USE SELF-HELP REMEDIES PROVIDED THAT SUCH SELF-HELP REMEDIES DO NOT BREACH THE PEACE.
IN WITNESS WHEREOF, Licensor and Licensee have duly executed this Agreement as of the day and year first above written.
|MIL 40G, LLC||Yumanity Therapeutics, Inc.|
|By: Amrit Chaudhari||By: Paulash Mohsen|
|Title: CEO||Title: Chief Business Officer|
Exhibit 1: Licensed Premises
Exhibit 2: Service Agreement
Emergency Procedures: A copy of 40 Guest Street emergency procedures will be provided at the start of occupancy.
|Licensee Space||Laboratory Space|| |
Laboratories can be equipped with fume hoods, central lines for carbon dioxide gas and nitrogen gas, and heavy electrical and exhaust infrastructure.
Gases and chemicals provided by Licensor:
2. Carbon dioxide gas
3. Nitrogen gas
4. Other gases available upon request and may incur additional fees
5. Dry ice
6. Liquid Nitrogen
Equipment provided may include:
1. Private BSL-1 wet lab benches, sink, eye-wash, and safety shower
2. Private BSL-2 cell/tissue culture-capable room with wet lab benches, sink, eye-wash, and safety shower
3. Six (6) 8-foot chemical fume hoods and two (2) 6-foot chemical fume hoods with solvent storage
4. Forty-eight (48) lab benches
Licensee must assign a Laboratory Supervisor and an EHS contact person.
Offices are connected to or located near the laboratory space. Additional office space may be licensed for an additional fee depending on availability.
Licensor will provide Licensee furniture:
66 Sit-to-stand desks
66 Ergonomic chairs
66 Filing pedestals
Licensor is not obligated to provide additional furniture except as expressly set forth herein.
Suites have a private virtual network with access to redundant gigabyte Internet service and private Wi-Fi covering Licensed Premises.
Suites may have private auxiliary rooms for sample storage, instruments, equipment, tissue culture, etc.
|Security||Each suite is secured key card accessible. Building entrances and common areas are monitored by video surveillance.|
|Emergency Power|| |
Emergency generators that support critical equipment and base building life safety equipment are operated by the facility manager together with outside support.
Licensee may need to provide its own Uninterrupted Power Supply (UPS) for equipment.
|Common Space||Conference Room|| |
Conference rooms will be made available with a central internet-based reservation system. AV equipment is provided or available for each conference room.
Conference call equipment will be available in all conference rooms. International calls are available on request with at least 24-hour notice.
|Lecture Room|| |
A lecture room is available for seminars, lectures, and large meetings. The lecture room requires an advanced reservation and a nominal fee may be charged for set up and cleaning services.
Licensor may offer a range of events, seminars and lectures free of charge for Licensees. Third-party seminars and training may also be provided at a nominal cost.
|Interactive Space|| |
Coffee, tea, water, and snacks will be available in this space.
Showers are available to Licensee.
|Wellness Room|| |
A Wellness Room is available on each floor upon request. Wellness rooms will be made available with a central internet-based reservation system
Public wifi is available on the 3rd and 4th floor.
Tier 1 tech support will be provided by Licensor in collaboration with a third-party vendor. Tier 3 tech support will be performed on an ongoing basis for the common IT infrastructure environment.
Licensee will have access to Licensors network. All of Licensors network hardware is protected by UPS.
Scaling Suite Licensees may install and house their own networking and server equipment. Licensee will need ability to setup VLAN for WiFi and private firewall after Licensors firewall. Additional requirements may apply. A detailed description of Network and IT Services is available upon request.
|Wi-Fi||Public wifi is available on the 3rd and 4th floor|
|Operational Support||Facility|| |
On-site facility support staff will be available to Licensee during normal business hours.
Basic personal protective equipment (PPE) (lab coats, gloves, safety glasses, etc.) for general use will be available. Specialty PPE must be provided by the Licensee.
Janitorial services will be provided on a schedule based on the needs of the Licensee.
The following permits have been obtained by the Licensor for the Licensed Premises*:
Flammable liquids and solvents
Licensor will own the EPA ID number.
Biosafety and/or rDNA permits for small scale work at BSL1 or BSL2 containment.
Licensor shall use best efforts to ensure each of these permits are renewed or otherwise maintained in a manner to remain in effect throughout the Term.
* Biosafety and/or rDNA permits may need to be obtained by the Licensee
During the application process, Licensee must complete a Hazard Assessment Form that addresses the type and amount of chemicals and biological agents that the Licensee plans to use in the Licensed Premises. No work may be conducted in the Licensed Premises until the form is approved by Licensor, which approval not to be unreasonably withheld, conditioned, or delayed. Based on this assessment, the Licensor will create SOPs and EHS training requirements for the Licensee: Licensor will use commercially reasonable efforts to incorporate Licensees input into such SOPs and EHS training requirements. Additional permits may need to be obtained by the Licensee.
A hard copy of all safety and emergency procedures will be delivered to the Licensee and, in addition, will be available on each floor. Recommendations for EHS must be followed by the Licensee. Licensor will conduct a mandatory meeting with designees of the Licensee to communicate and discuss all relevant emergency information and policies.
Only Biosafety Level 1 and 2 work is allowed in Licensed Premises. All Biosafety Level 1 and 2 work must be approved by the SmartLabs Institutional Biosafety Committee (IBC). No select agent work is allowed. Depending on the biosafety work, it may need to be reviewed either by the City of Bostons Boston Public Health Commission or the SmartLabs Institutional Biosafety Committee.
Licensor, its agents and employees shall, prior to entering the Licensed Premises, have received all necessary- training in Biosafety Level 1 and 2 protocol.
|Operational Support (Cont.)||Glasswash and Autoclave|| |
A glasswash and autoclave facility will be available to Licensee, provided that such facilities will be run by Licensor and/or a third-party (i.e. Licensee shall not run these systems).
|EHSS Training|| |
Training is provided for all Licensee staff. Initial training will consist of a walk-through of die Licensed Premises and both in-person and web-based training and certifications.
Ongoing training is web-based and Licensor will keep a training record of all training received by Licensee staff. Failure to complete training may result in removal of access or work stoppage.
Training provided covers the following topics:
Emergency Action Plan
PPE/Job Hazard Analysis
Blood Borne Pathogens
Eye Protection and Safety
Fire Safety Prevention/Fire Extinguishers
First Aid and Emergency Response
Sharps Safety and Needle-Stick Prevention
Emergency Action Plan
In addition to the standard training offered, Licensor has developed template SOPs for Particularly Hazardous Substances. Licensee may work with the Licensors EHS team to develop SOPs for Lab-Specific Procedures or Substances, which can be used for lab-specific (or process specific) training. Licensee is responsible for providing these types of training to its employees.
*Additional specialized training may be required.
|EHS Training Audits|| |
Licensor or a third-party will conduct EHS audits for all procedures and equipment and Licensee will implement corrective actions at a frequency required by federal, state, and local regulations. A review of Standard Operating Procedures will be provided when requested, at the Licensees cost.
Emergency equipment such as safety showers, eyewash stations, fire extinguishers and emergency egress, will be checked by Licensor or a third part} on a regular basis as required by EHS provisions. Chemical fume hoods will be inspected and certified on a yearly basis.
Licensee is responsible for the yearly certification and inspections of biosafety cabinets and all other private equipment.
|Waste Management|| |
Licensor will manage, maintain, and operate the pH neutralization system for the Premises, which Licensor may accomplish by having a third-part} vendor manage all aspects of wastewater management. A wastewater operator will service and maintain the pH neutralization system and check all auxiliary piping, etc. Preventative maintenance of all wastewater systems will be done once per month. Wastewater sampling, sample transport, analysis and reports will be done by a third-party vendor. The chart recorder and other data logs will be checked regularly and available to Licensee upon request. Licensor will remedy any disruption on wastewater systems and shall use commercially reasonable efforts to avoid interference with Licensees ongoing work. If needed, Licensor will collect and ship wastewater as appropriate to prevent or resolve any disruption.
Hazardous, non-hazardous and biological waste will be removed from satellite accumulation areas in the Licensed Premises such as laboratories, hoods or storage rooms. To ensure ongoing compliance, improvements of existing systems will be based on third-part} recommendations. Licensor will maintain a wastewater treatment license.
Licensor will maintain a central inventory system for chemicals, flammable solvents and toxic biologicals, including MSDS administration and centralized receiving. Licensee will be responsible for ordering chemicals and biologicals and will bear sole responsibility and cost of any errors and costs associated with shipment: or instances where chemicals or biologicals are not in compliance with the rules and regulations governing the Licensed Premises and must be returned or properly disposed of.
|Emergencies||There will be 24/7 on-call emergency personnel in case of emergencies such as accidents, spills, etc.|
|Office Support|| |
Standard receiving, logistics, handling and mail delivery services are provided by the Licensor. Specialized products, instrumentation (especially when heavy), chemicals, biologicals and regulated products that require special handing will require Licensee to obtain approvals and make special arrangements to support the necessary logistics and handling.
|Print and Copy|| |
Shared access printers and copiers for standard print and copy jobs will be maintained by Licensor. Notwithstanding the foregoing, Licensee may, at its discretion, operate one or more dedicated printers for use by Licensee in the Licensed Premises. Licensee will be responsible for the procurement and maintenance of any dedicated printers.
|Security||Secured Space|| |
Licensors staff will be available at the reception desk Monday- Friday from 8am to 5pm. After business hours, security personnel remain on-site. Licensee can request that security personnel make tours of Licensed Premises after hours. Biosafety regulations may prevent security personnel from entering Licensed Premises. Excepting emergencies, Licensee shall have access to the building 365 days per year and 24 hours per day.
All visitors must sign in at reception. Licensee is responsible for meeting the visitor at the reception and escorting the visitor within the Building and Licensed Premises. Due to safety concerns, visitors will not be allowed into Licensed Premises without prior approval by Licensor.
Licensee is solely responsible for its visitors actions, ensuring its visitors adhere to all of Licensors policies, and for accompanying visitors at all times for the duration of their visit. See Visitor Policy for more details.
The following services are not provided and/or are not included in License. When available, these services can be provided under a separate agreement with different terms.
Renovations past 365 days of commencement date.
IT Support Level 2 and 4
Any research/work required to be conducted under Biosafety Levels (BSL) 3 or 4 policies and guidelines.
Use of any radioactive material.
Radiation producing equipment (including lasers) will need special approval
Shared tissue culture rooms
Specific Training such as RCRA, DOT, cyanide, etc.
Exclusive use of shared and common spaces
International Phone Calls in Conference Rooms (available upon request and with 24-hour prior notice)
Shipping of Packages
Costs of moving in and moving out
Certification and Preventative Maintenance of company owned equipment
Use of Licensors accounts for purchases
Exhibit 3: Insurance Requirements
1.1. Licensee shall, at its own cost and expense, procure and maintain during the Term the following insurance for the benefit of Licensee and Landlord (as their interests may appear) with insurers financially acceptable and lawfully authorized to do business in the state where the Licensed Premises are located:
(a) Commercial General Liability insurance on a broad-based occurrence coverage form, with coverages including but not limited to bodily injury (including death), property damage (including loss of use resulting therefrom), premises/operations, personal and advertising injury, and contractual liability with limits of liability of not less than $2,000,000 for bodily injury and property damage per occurrence, $2,000,000 general aggregate, which limits may be met by use of excess and/or umbrella liability insurance provided that such coverage is at least as broad as the primary coverages required herein.
(b) Commercial Automobile Liability insurance covering liability arising from the use or operation of any vehicle, including those owned, hired or otherwise operated or used by or on behalf of Licensee. The coverage shall be on a broad-based occurrence form with combined single limits of not less than $1,000,000 per accident for bodily injury and property damage.
(c) Commercial Property insurance covering property damage to the full replacement cost value and business interruption. Covered property shall include all of Licensees improvements in the Licensed Premises and Licensees property including personal property, furniture, fixtures, machinery, equipment, stock, inventory and improvements and betterments, which may be owned by Licensee or Licensor and required to be insured hereunder, or which may be leased, rented, borrowed or in the care custody or control of Licensee, or Licensees agents, employees or subcontractors. Such insurance shall be written on an all risk of physical loss or damage basis including the perils of fire, extended coverage, electrical injury, mechanical breakdown, windstorm, vandalism, malicious mischief, sprinkler leakage, back-up of sewers or drains, flood, earthquake, terrorism and such other risks Licensor may from time to time designate, for the full replacement cost value of the covered items with an agreed amount endorsement with no co-insurance. Business interruption coverage shall have limits sufficient to cover Licensees lost profits and necessary continuing expenses, including License Fees due Licensor under the Agreement. The minimum period of indemnity for business interruption coverage shall be twelve (12) months.
(d) Workers Compensation insurance as is required by statute or law, or as may be available on a voluntary basis and Employers Liability insurance with limits of not less than the following: each accident, Five Hundred Thousand Dollars ($500,000); disease ($500,000); disease (each employee), Five Hundred Thousand Dollars ($500,000).
(e) Intentionally omitted.
(f) Pollution Legal Liability insurance is required if Licensee stores, handles, generates or treats Hazardous Materials, as determined solely by Licensor, on or about the Licensed Premises. Such coverage shall include bodily injury, sickness, disease, death or mental anguish or shock sustained by any person; property damage including physical injury to or destruction of tangible property including the resulting loss of use thereof, clean-up costs, and the loss of use of tangible property that has not been physically injured or destroyed; and defense costs, charges and expenses incurred in the investigation, adjustment or defense of claims for such compensatory damages. Coverage shall apply to both sudden and non-sudden pollution conditions including the discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste materials or other
irritants, contaminants or pollutants into or upon land, the atmosphere or any watercourse or body of water. Claims-made coverage is permitted, provided the policy retroactive date is continuously maintained prior to the commencement date of this agreement, and coverage is continuously maintained during all periods in which Licensee occupies the Licensed Premises. Coverage shall be maintained with limits of not less than $1,000,000 per incident with a $2,000,000 policy aggregate and for a period of two (2) years thereafter.
1.2. The insurance required of Licensee shall be with companies at all times having a current rating of not less than A- and financial category rating of at least Class VII in A.M. Bests Insurance Guide current edition. Licensee shall obtain for Licensor from the insurance companies/broker or cause the insurance companies/broker to furnish certificates of insurance evidencing all coverages required herein to Licensor. Licensor reserves the right to require complete, certified copies of all required insurance policies including any endorsements. No such policy shall be cancelable or subject to reduction of coverage or other modification or cancellation except after twenty (20) days prior written notice to Licensor from Licensee or its insurers (except in the event of non-payment of premium, in which case ten (10) days written notice shall be given). All such policies shall be written as primary policies, not contributing with and not in excess of the coverage that Licensor may carry. Licensee shall, at least ten (10) days prior to the expiration of such policies, furnish Licensor with renewal certificates of insurance or binders. Licensee agrees that if Licensee does not take out and maintain such insurance, Licensor may (but shall not be required to) procure such insurance on Licensees behalf and at its cost to be paid by Licensee as part of its License Fee. Commercial General Liability, Commercial Automobile Liability, Umbrella Liability and Pollution Legal Liability insurance as required above shall name Licensor, Landlord, and their respective officers, employees, agents, general partners, members, subsidiaries, affiliates and Lenders (Landlord Parties) as additional insureds as respects liability arising from work or operations performed by or on behalf of Licensee, Licensees use or occupancy of the Licensed Premises, and ownership, maintenance or use of vehicles by or on behalf of Licensee.
1.3. In each instance where insurance is to name Landlord Parties as additional insureds, Licensee shall, upon Licensors written request, also designate and furnish certificates evidencing such Landlord Parties as additional insureds to (a) any lender of Licensor or Landlord holding a security interest in the Building, (b) the landlord under any lease whereunder Landlord is a tenant of the real property upon which the Licensed Premises is located if the interest of Landlord is or shall become that of a tenant under a ground lease rather than that of a fee owner and (c) any management company retained by Licensor or Landlord to manage the Building.
1.4. Except to the extent caused by the Landlord Parties, Licensee assumes the risk of damage to any fixtures, goods, inventory, merchandise, equipment and leasehold improvements, and Licensor and Landlord shall not be liable for injury to Licensees business or any loss of income therefrom, relative to such damage, all as more particularly set forth within the Agreement. Licensee shall, at Licensees sole cost and expense, carry such insurance as Licensee desires for Licensees protection with respect to personal property of Licensee or business interruption.
1.5. Licensee and its insurers hereby waive any and all rights of recovery against the Landlord Parties with respect to any loss, damage, claims, suits or demands, howsoever caused, that are covered, or should have been covered, by valid and collectible workers compensation, employers liability, and other liability insurance required to be carried by Licensee pursuant to this Exhibit 3, including any deductibles or self-insurance maintained thereunder. If necessary, Licensee agrees to endorse the required workers compensation, employers liability and other liability insurance policies to permit waivers of subrogation as required hereunder and hold harmless and indemnify the Landlord Parties for any loss or expense incurred as a result of a failure to obtain such waivers of subrogation from insurers. Such waivers shall continue so long as Licensees insurers so permit. Any termination of such a waiver shall be by written notice to Licensor, containing a description of the circumstances hereinafter set forth in this Exhibit 3.
Licensee, upon obtaining the policies of workers compensation, employers liability and other liability insurance required or permitted under this Exhibit 3, shall give notice to its insurance carriers that the foregoing waiver of subrogation is contained in this Exhibit 3. If such policies shall not be obtainable with such waiver or shall be so obtainable only at a premium over that chargeable without such waiver, then Licensee shall notify Licensor of such conditions.
1.6. Licensor may require insurance policy limits required under the Agreement to be raised to conform with requirements of Landlords or Licensors lender.
1.7. The provisions of this Exhibit 3 shall survive the expiration or earlier termination of the Agreement.