EXHIBIT 10.02
AGREEMENT OF SUBLEASE
This Agreement of Sublease (this "Sublease") made as of this 29th day of
June, 2000, by and between Reprogenesis, Inc., a Texas corporation with an
office at 21 Erie Street, Cambridge, Massachusetts 02139 ("Sublandlord"), and
Ontogeny, Inc., a Massachusetts corporation with an office at 45 Moulton Street,
Cambridge, Massachusetts 02138 ("Subtenant"). Unless otherwise expressly
defined herein, all capitalized terms used herein shall have the meanings
ascribed to such terms in a lease dated September 1997, as amended by First
Amendment to Lease dated as of October 1, 1998, and as further amended by Second
Amendment to Lease dated as of June 29, 2000 (as amended, the "Main Lease")
between Sublandlord, as tenant, and David E. Clem and David M. Roby, Trustees of
21 Erie Realty Trust, with an address in c/o McNeill Management, Inc., 320
Norwood Park South, Norwood, Massachusetts 02062, as landlord ("Landlord"), with
respect to approximately 45,128 rentable square feet of space on the second
floor of the building known and numbered as 21 Erie Street, Cambridge,
Massachusetts (the "Building"), as more fully described in the Main Lease (the
"Main Premises"). A copy of the Main Lease is attached hereto and incorporated
herein by reference as Exhibit A.
In consideration of the mutual promises contained herein and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. DEMISE. Sublandlord hereby leases to Subtenant, and Subtenant hereby
hires from Sublandlord, upon and subject to the terms and conditions hereinafter
stated or incorporated herein by reference from July 1, 2000 (the "Sublease Term
Commencement Date") through the Sublease Termination Date (as hereinafter
defined) approximately 9,758 rentable square feet of space as more particularly
shown on Exhibit B attached hereto and made a part hereof. For all purposes of
this Sublease, the term "Sublease Premises" shall mean the premises demised
under this Sublease as hereinabove provided at the time in question.
Notwithstanding anything contained in Section 10.13 of the Main Lease to the
contrary, Subtenant shall have no right to expand further the Sublease Premises.
2. TERM. The term of this Sublease (the "Sublease Term") shall commence
on the Sublease Term Commencement Date and end on the Term Expiration Date,
unless sooner terminated as herein provided (the "Sublease Termination Date").
Notwithstanding anything contained in Section 10.12 of the Main Lease to the
contrary, Subtenant shall have no right to extend the Sublease Term beyond the
Sublease Termination Date.
3. USE OF THE SUBLEASE PREMISES; PARKING. Sublandlord and Subtenant agree
that the Sublease Premises shall only be used for the Permitted Uses set forth
in Article I of the Main Lease. Subtenant further acknowledges and agrees that
during the Sublease Term, Subtenant is obligated to lease twenty (20) parking
spaces in the Garage at the fair market rent established therefor from time to
time by Landlord, which fair market rent is $150.00 per space per month as of
the Sublease Term Commencement Date.
4. RENT.
(a) From the Sublease Term Commencement Date through the Sublease
Termination Date, Subtenant shall pay to Sublandlord base rent ("Sublease Base
Rent") for the Sublease Premises at a rental rate of $26.00 per rentable square
foot payable in equal monthly installments. The parties acknowledge and agree
that Landlord shall, within six (6) months after the Sublease Term Commencement
Date, have its architect remeasure the Sublease Premises based upon the BOMA
method for measuring floor area in an office building for a single tenant on
such floor, but in no event shall such measured floor area be less than 9,318
rentable square feet. The parties further acknowledge and agree that the
calculation of Sublease Base Rent shall be based on the number of rentable
square feet that are included in the Sublease Premises as the same may be
remeasured from time to time and that the Sublease Base Rent shall be adjusted
in accordance with the provisions of Paragraph 6 of the Second Amendment to
Lease. Sublease Base Rent shall be payable in advance on the first (1st) day of
each and every calendar month of the Sublease Term. If the Sublease Term
commences or ends other than on the first (1st) day of a month, then Sublease
Base Rent for such month shall be prorated for such fractional period and paid
promptly to Sublandlord.
(b) In addition to the Sublease Base Rent to be paid by Subtenant,
Subtenant shall pay to Sublandlord, during the Sublease Term hereof, as
additional rent for the Sublease Premises (the "Additional Rent"), (i)
Subtenant's Proportionate Share (as defined below) of all other payments
required to be paid by Sublandlord under the Main Lease (except under Section
4.1(b)) when and as due thereunder, (ii) the entirety of any penalties that may
accrue thereon in the event of Subtenant's failure to pay such amounts, and
(iii) all damages, costs and expenses which Sublandlord may incur by reason of
any failure by Subtenant to comply with the terms of this Sublease. As used
herein, "Subtenant's Proportionate Share" shall be the fraction comprised of the
rentable square footage of the Sublease Premises, with the calculation based on
the number of rentable square feet that are included in the Sublease Premises as
the same may be remeasured from time to time, as the numerator and the total
rentable square footage of the Main Premises at the time in question as the
denominator.
(c) Additional Rent shall be adjusted as of the Sublease Term
Commencement Date, each January 1 thereafter during the term, and the Sublease
Termination Date. When the amount of Additional Rent due hereunder is not known
prior to the Sublease Termination Date, a final adjustment shall be made between
Subtenant and Sublandlord promptly after such amount is known, notwithstanding
that the term of this Sublease may have expired or have been earlier terminated.
(d) Except as otherwise expressly provided in Subparagraph 4(b)(i)
hereof, all Additional Rent shall be due and payable within five (5) business
days after demand therefor by Sublandlord. In the event that Subtenant shall
fail to pay Additional Rent when due and payable, Sublandlord shall have all the
rights and remedies with respect to such failure as Sublandlord has for the
nonpayment of Sublease Base Rent.
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5. CONDITIONS OF SUBLEASE PREMISES. Sublandlord shall deliver the
Sublease Premises to Subtenant "AS IS" in its then condition, with no warranty
or representation as to the condition of said premises. Sublandlord shall not
be responsible for making any improvements, alterations or repairs therein or
for spending any money to prepare the Sublease Premises for Subtenant's
occupancy. Any such improvements, alterations or repairs made to prepare the
Sublease Premises for Subtenant's occupancy shall be referred to herein as the
"Initial Tenant Improvements".
Any construction, renovation or improvements by Subtenant to the Sublease
Premises, including without limitation, the Initial Tenant Improvements, shall
be performed by Subtenant at its sole cost and expense and in accordance with
all the terms and conditions of this Sublease and the Main Lease, including, but
not limited to, Article III of the Main Lease. Whenever the consent of Landlord
is required under the terms of the Main Lease with respect to any construction,
renovations or improvements, Subtenant must also obtain the consent of
Sublandlord, which consent shall not be unreasonably withheld or delayed.
Neither Landlord nor Sublandlord shall have any obligation to pay or contribute
to the cost of any leasehold improvements made by Subtenant in the Sublease
Premises.
6. SURRENDER. At the expiration or earlier termination of this Sublease,
Subtenant shall surrender the Sublease Premises to Sublandlord, broom clean,
with all additions and improvements thereto, in the same condition as on the
date of delivery to Subtenant or as the Sublease Premises may be put in during
the Term of the Sublease, damage from fire or other casualty only excepted. If
Subtenant does not immediately surrender the Sublease Premises upon the
expiration or earlier termination of the Sublease Term, then Subtenant shall
become a tenant at sufferance and the rent due hereunder shall be increased to
two (2) times the sum of (a) Sublease Base Rent, (b) Additional Rent and (c) all
other amounts that Sublandlord is required to pay with respect to the Sublease
Premises pursuant to the Main Lease until Subtenant vacates the same. In
addition, if Subtenant fails to remove any of Subtenant's personal property from
the Sublease Premises, Sublandlord is hereby authorized, without liability to
Subtenant for loss or damage thereto, and at the sole risk of Subtenant, to
remove and store any of such property at Subtenant's expense, or to retain same
under Sublandlord's control or to sell at public or private sale, without
notice, any or all of the property not so removed and to apply the net proceeds
of such sale to the payment of any sums due hereunder, or to destroy such
property.
7. INCORPORATION OF LEASE BY REFERENCE.
(a) This Sublease is subject and subordinate to all of the terms and
conditions of the Main Lease which are hereby incorporated herein by reference;
provided, however, that with respect to any provisions of the Main Lease which
conflict with or are inconsistent with the terms of this Sublease, the terms of
this Sublease shall control. Notwithstanding the foregoing to the contrary, in
case of any conflict between the provisions of the Main Lease and the provisions
of this Sublease as to the rights of Landlord, the provisions of the Main Lease
shall prevail. Except as otherwise provided herein, Subtenant shall assume,
perform, pay and observe the obligations of Sublandlord as a tenant under the
Main Lease for the benefit of Landlord and Sublandlord to the extent said terms
and conditions are applicable to the Sublease Premises; and in the case of any
breach hereof by Subtenant, Sublandlord shall have all the rights against
Subtenant as would be
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available to Landlord as landlord under the Main Lease against Sublandlord as if
such breach were by Sublandlord as tenant thereunder. Notwithstanding anything
to the contrary herein contained, nothing shall prevent Landlord from enforcing
its rights against Sublandlord and/or Subtenant in the event of default of their
obligations as tenant under the Main Lease.
(b) All of the terms and conditions contained in the Main Lease
consistent with the provisions of this Sublease are incorporated herein as terms
and conditions of this Sublease (with each reference therein to Landlord and
Tenant to be deemed to refer to Sublandlord and Subtenant, respectively,
provided, however that the reference to Landlord shall also refer to Landlord
should Landlord decide to enforce its rights as Landlord under the Main Lease
directly against Subtenant) and, along with all of the following paragraphs set
out in this Sublease, shall be the complete terms and conditions of this
Sublease.
(c) Notwithstanding the foregoing incorporation by reference of the
terms and conditions of the Main Lease, for purposes of determining the
occurrence of events of default hereunder (other than nonpayment of rent) by
Subtenant, any and all grace periods set forth in Article VII of the Main Lease,
as they may apply to Subtenant, shall be reduced by five (5) business days.
8. COVENANTS OF THE PARTIES.
(a) With respect to the Sublease Premises, Subtenant covenants and
agrees to perform and observe all the terms, covenants and conditions required
to be performed by Sublandlord, as tenant under the Main Lease, except the
obligation to make payments of rent and a Security Deposit (as defined in
Paragraph 11 below) to Landlord. Subtenant further agrees that Subtenant's
performance of all such obligations shall be performed by Subtenant for the
benefit of Sublandlord as well as for the benefit of Landlord, and that
Sublandlord shall have, with respect to Subtenant, this Sublease and the
Sublease Premises, all of the rights and benefits provided to Landlord by the
Main Lease. Subtenant will exonerate, indemnify and hold harmless Sublandlord
from and against all claims, suits, obligations, liabilities and damages,
including reasonable attorneys' fees, resulting from the failure by Subtenant to
perform, fulfill or observe Subtenant's representations, warranties or
agreements set forth in this Sublease. Sublandlord will exonerate, indemnify
and hold harmless Subtenant from and against all claims, suits, obligations,
liabilities and damages, including reasonable attorneys' fees, resulting from
the failure by Sublandlord to perform, fulfill or observe Sublandlord's
representations, warranties or agreements set forth in this Sublease.
(b) Subtenant covenants and agrees with Sublandlord not to do or
permit to be done any act of commission or omission which would constitute a
violation or default under the Main Lease if done or permitted to be done by
Sublandlord.
(c) As long as this Sublease is in full force and effect, Subtenant
shall be entitled, with respect to the Sublease Premises, to the benefit of
Landlord's obligations and agreements to furnish utilities and other services to
the Sublease Premises. Subtenant hereby acknowledges and agrees, however, that
Subtenant shall be responsible for all janitorial services to the Sublease
Premises and to the bathrooms/lavatories servicing the Sublease Premises.
Notwithstanding
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anything herein or in the Main Lease provided to the contrary, however,
Sublandlord shall not be responsible for the performance of Landlord's
obligations under the Main Lease, and shall not be liable in damages or
otherwise for any negligence of Landlord or for any damage or injury suffered by
Subtenant as a result of any act or failure to act by Landlord, or any default
by Landlord in the performance of its obligations under the Main Lease, nor
shall any such action, failure to act, or default by Landlord constitute a
constructive eviction or default by Sublandlord hereunder.
(d) If Landlord shall default in the performance of any of its
obligations under the Main Lease, or if Subtenant wishes to file a protest or to
dispute any matter or thing and sends written notice thereof to Sublandlord
("Landlord Demand Notice"), Sublandlord has the right to protest or dispute
(together with all material facts and circumstances pertaining thereto) and
Sublandlord shall, within five (5) business days after receipt of the Landlord
Demand Notice, make demand on Landlord and shall employ all reasonable efforts
to cause Landlord to cure such default or resolve such dispute. If Sublandlord
shall fail to cause Landlord to cure such default (or if such dispute shall not
be resolved) within a reasonable period of time, then following notice from
Subtenant to Sublandlord, Subtenant shall have the right, at Subtenant's sole
cost and expense, and in the name of Sublandlord, to file any such protest
and/or to make demand or institute any appropriate action or proceeding against
Landlord for the enforcement of its obligations. Sublandlord agrees that it
shall sign such demands, pleadings and/or other papers, and shall otherwise
cooperate with Subtenant, as may be reasonably required or necessary to enable
Subtenant to proceed in Sublandlord's name to enforce the obligations of
Sublandlord, provided that Subtenant shall indemnify Sublandlord against, and
hold Sublandlord harmless from, any and all loss, costs, damage, expense,
penalty or liability (including, but not limited to, reasonable attorneys' fees
and disbursements), incurred by Sublandlord by reason of prosecution by
Subtenant of any such proceeding or action or the filing of any such protest.
(e) Sublandlord shall not incur any liability whatsoever to Subtenant
for any injury, inconvenience, incidental or consequential damages incurred or
suffered by Subtenant as a result of the exercise by Landlord of any of the
rights reserved to Landlord under the Main Lease, nor shall such exercise
constitute a constructive eviction or a default by Sublandlord hereunder.
(f) Sublandlord covenants that, subject to the terms and conditions of
the Main Lease and this Sublease, if and so long as Subtenant keeps and performs
each term and condition herein contained on its part to be kept and performed,
Subtenant shall not be disturbed in the enjoyment of the Sublease Premises by
Sublandlord or by anyone claiming by, through or under Sublandlord.
(g) Whenever a notice is given or received pursuant to the Main Lease
by Sublandlord or Subtenant which has relevance to the Sublease Premises,
Sublandlord and Subtenant each agree promptly to provide the other with a copy
of such notice.
(h) Subtenant covenants and agrees that this Sublease shall not be
assigned or the Sublease Premises further sublet, in whole or in part, or any
part thereof suffered or permitted by Subtenant to be used or occupied by
others, without in each instance the prior written consent of Landlord if
necessary in accordance with the requirements of the Main Lease, and
Sublandlord, which consent of Sublandlord may be withheld in Sublandlord's sole
discretion.
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(i) Subtenant covenants and agrees that Sublandlord and Landlord shall
be named as additional insureds under any insurance policies obtained in
connection with this Sublease or the Sublease Premises.
9. DEFAULT.
(a) In the event that Subtenant shall default in the payment of
Sublease Base Rent or Additional Rent hereunder, or default in the performance
or observance of any of the terms, conditions and covenants of this Sublease,
which default shall not be cured within the grace periods set forth in the Main
Lease, as modified by Section 7(c) of this Sublease, Sublandlord, in addition to
and not in limitation of any rights otherwise available to it, shall have the
same rights and remedies with respect to such default as are provided to
Landlord under the Main Lease with respect to defaults by the tenant thereunder,
with the same force and effect as though all such provisions relating to any
such default or defaults were herein set forth in full, and Subtenant shall have
all of the obligations of the tenant under the Main Lease with respect to such
default.
(b) In the event of a default by Subtenant in the performance of any
of its obligations hereunder, Sublandlord may, at its option, and without
waiving any other remedies for such default herein or by law or by incorporation
by reference of the Main Lease provided, at any time thereafter, give written
notice to Subtenant that if such default is not cured, or the cure not commenced
within three (3) days after such notice is deemed given pursuant to the terms of
this Sublease, and thereafter pursued diligently to conclusion, Sublandlord may
cure such default for the account of Subtenant, and any amount paid or incurred
by Sublandlord in so doing shall be deemed paid or incurred for the account of
Subtenant, and Subtenant agrees to reimburse Sublandlord therefor and save
Sublandlord harmless therefrom; provided that Sublandlord may cure any such
default as aforesaid prior to the expiration of any waiting period if reasonably
necessary to protect Sublandlord's interests under the Main Lease or to prevent
injury or damage to persons or property. If Subtenant shall fail to reimburse
Sublandlord upon demand for any amount paid for the account of Subtenant
hereunder, said amount shall be added to, and become due as a part of, the next
payment of Sublease Base Rent due hereunder.
10. TERMINATION. If at any time prior to the expiration of the Sublease
Term, the Main Lease shall terminate or be terminated for any reason, then at
the option of Landlord, expressed by written notice to Subtenant, either
(a) this Sublease shall terminate simultaneously upon termination of
the Main Lease, and Subtenant shall vacate the Sublease Premises on or before
such date, or
(b) Subtenant shall attorn to and recognize Landlord as a direct
tenant of Landlord upon all of the terms and conditions of this Sublease, and
Subtenant shall, promptly upon Landlord's request, execute and deliver all
instruments necessary or appropriate to confirm such attornment and recognition.
Subtenant hereby waives all rights under any present or future law to elect, by
reason of the termination of the Main Lease, or by reason of any default by
Sublandlord under this Sublease occurring after Landlord's notice pursuant to
this Paragraph 10, to terminate this Sublease or surrender possession of the
Sublease Premises.
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Whichever option Landlord exercises; Landlord shall not be:
(i) liable for any act or omission of Sublandlord;
(ii) subject to any offsets or defenses which Subtenant had
or might have had against Sublandlord; or
(iii) bound by any amendment or modification of this Sublease not
expressly consented to in writing by Landlord or by any Base Rent or Additional
Rent or other payment which Subtenant might have made to Sublandlord, except for
any payments of Base Rent or Additional Rent made no more than one month in
advance in accordance with the terms of this Sublease.
If Landlord terminates the Main Lease and fails to give notice to Subtenant
pursuant to Subparagraphs 10 (a) or (b) hereof, Landlord shall be deemed to have
chosen to terminate this Sublease as set forth in Subparagraph 10 (a).
Sublandlord shall not be liable to Subtenant for any loss or damage caused by
the termination of the Main Lease.
11. SECURITY DEPOSIT. Upon execution of this Sublease, Subtenant shall
pay to Sublandlord Forty-Two Thousand Two Hundred Eighty-Four and 67/100 Dollars
($42,284.67) to be held by Sublandlord, without interest, as security for
Subtenant's performance as herein provided (the "Security Deposit"). For and
during the Sublease Term, Sublandlord shall have the irrevocable right, without
further notice or approval of Subtenant, but not the obligation, from time to
time, without prejudice to any other remedy Sublandlord may have on account
thereof, to apply the Security Deposit or any portion thereof or interest
thereon, to Sublandlord's damage resulting from any default after applicable
grace and cure periods by Subtenant. On the termination of the Sublease Term,
the Security Deposit, or the portion thereof then held by Sublandlord shall be
returned promptly to Subtenant, beyond the amount necessary to cure the breach
of any provision of this Sublease by Subtenant. If all or any part of the
Security Deposit is applied to an obligation of Subtenant hereunder, Subtenant
shall immediately upon request by Sublandlord restore the Security Deposit to
its original amount. Subtenant shall not have the right to call upon
Sublandlord to apply all or any part of the Security Deposit to cure any default
or fulfill any obligation of Subtenant, but such use shall be solely in the
discretion of Sublandlord.
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12. MISCELLANEOUS.
(a) Notices. All notices, demands, consents and approvals which may
be or are required to be given hereunder shall be in writing and shall be deemed
to have been delivered on the earlier of (i) the date received, or (ii) the date
of delivery, refusal, or non-delivery indicated on the return receipt, if
deposited in a United States Postal Service depository, postage pre-paid, sent
registered or certified mail, return receipt requested, sent overnight, mail or
delivered by hand and addressed to the party to be notified at the address for
such party specified in the first paragraph of this Sublease, or to such other
place as the party to be notified may from time to time designate by at least
fifteen (15) days notice to the notifying party. Sublandlord and Subtenant
hereby appoint as their respective agents to receive the service of all default
notices and notice of commencement of unlawful detainer proceedings the person
then in charge of or apparently in charge of or occupying the Main Premises or
the Sublease Premises, respectively.
(b) Effect. This Sublease shall be binding upon the parties hereto,
their executors, administrators, heirs, successors and assigns.
(c) Applicable Law. This Sublease shall be deemed made and shall be
governed by and construed in accordance with the laws of the Commonwealth of
Massachusetts.
(d) Modification. Neither this Sublease nor any provision thereof may
be waived, modified, amended, discharged or terminated, except by an instrument
in writing signed by the party against which the enforcement of such waiver,
modification, amendment, discharge or termination is sought, and then only to
the extent set forth in such instrument.
(e) Severability. If any term or provision of this Sublease or the
application thereof to any person or circumstance shall to any extent be held
invalid or unenforceable, the remainder of this Sublease or the application of
such term or provision to other persons or circumstances shall not be affected
thereby, and each term and provision of this Sublease shall be valid and
enforceable to the fullest extent permitted by law.
(f) Broker. The parties represent and warrant that they have dealt
with no broker in connection with the transaction contemplated by this Sublease,
and each party agrees to indemnify and hold the other party harmless from and
against any and all claims, demands, causes of action, losses, damages,
liabilities, costs and expenses (including, without limitation, attorneys' fees
reasonably incurred, court costs and claims for brokerage commissions) asserted
against or incurred by such other party by reason of, or arising out of, any
breach of the warranty and representation set forth in this paragraph.
(g) Representation and Warranty of Subtenant. Subtenant hereby
warrants and represents to Sublandlord and Landlord as follows:
(i) Subtenant is duly authorized and fully qualified to conduct
its business in the Commonwealth of Massachusetts and is in good standing
in the Commonwealth; and
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(ii) This Sublease constitutes the valid and binding obligation
of Subtenant.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Sublease to be duly
executed under seal as of the date first above written.
SUBLANDLORD: REPROGENESIS, INC.
By: /s/ James S. Sigler
--------------------
Name: James S. Sigler
Title: Vice President of Manufacturing
SUBTENANT: ONTOGENY, INC.
By: /s/ Bruce Leicher
------------------
Name: Bruce Leicher
Title: Vice President and General Counsel
Pursuant to Section 5.2.1 of the Main Lease, Landlord hereby joins this
Agreement for Sublease for the sole purpose of consenting to this Sublease.
LANDLORD:
/s/ David E. Clem
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David E. Clem, Trustee of 21 Erie Realty Trust
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