EXHIBIT 10.46
SUBLEASE AGREEMENT
This Sublease Agreement is made as of May 1, 1996 and is by and between T
Cell Sciences, Inc., a Delaware corporation with a principal address at 115-119
Fourth Avenue, Needham, Massachusetts ("Sublessor"), and Repligen Corporation, a
Delaware corporation with a principal address at 117 Fourth Avenue, Needham,
Massachusetts ("Sublessee").
Reference is made to the following facts:
A. As of May 1, 1996, Fourth Avenue Ventures Limited Partnership (the
"Landlord") entered into a lease with Sublessor (the "Overlease") a true and
correct copy of which is attached hereto as Exhibit A, for certain office and
laboratory space (the "Main Premises") within the building located at 115-119
Fourth Avenue, Needham, Massachusetts, as more specifically described in the
Overlease (the "Building")
B. Subject to the terms and conditions of this Sublease Agreement,
Sublessor has agreed to sublease to Sublessee a portion of the Premises
hereinafter referred to as the "Subleased Premises." The Subleased Premises
shall consist of certain space to be used exclusively by Sublessee, which space
is shown on Exhibit B attached hereto and incorporated herein. For the purposes
of determining Sublessee's Annual Fixed Rent and Sublessee's proportionate share
of taxes, utilities and operating expenses, the square footage of the Subleased
Premises is approximately 13,000 rentable square feet.
C. Capitalized terms not otherwise defined herein shall have the meaning
set forth in the Overlease.
AGREEMENTS:
In consideration of the mutual covenants herein contained and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Sublessor and Sublessee hereby agree as follows:
1. Premises. Sublessor hereby leases to Sublessee, and Subleases hereby
leases from Sublessor, the Subleased Premises for all Permitted Uses described
in the Overlease, provided that such use is permitted by law or pursuant to a
special permit duly issued by the Town of Needham and in full force and effect.
The Subleased Premises consist of approximately 13,000 rentable square feet as
shown on Exhibit B attached hereto and incorporated herein by this reference.
Sublessee shall have, as appurtenant to the Subleased Premises, rights to use,
in common with others entitled thereto: (i) common lobbies, hallways, ramps,
stairways, freight elevators, shipping/receiving areas, and other common areas
of the Building, if any; (ii) the common walkways and driveways necessary for
access to the Building; (iii) the common hallways, emergency exits, stairways
and elevators within the Main Premises necessary for access to the Subleased
Premises, all as shown on Exhibit B, (iv) the HVAC systems and common utility
equipment, pipes, ducts, conduits, wires and appurtenant equipment serving the
Subleased Premises and (v) on a nonexclusive basis, twenty five (25) parking
spaces.
a. Sublessor shall deliver the Subleased Premises to Sublessee on May 1,
1996 (the "Commencement Date") in such condition as exists as of the date of
this Sublease, free of all occupants other than Sublessee.
2. Term. To have and to hold for a term of four (4) years, commencing on
May 1, 1996 and terminating on April 30, 2000 unless sooner terminated as
herein provided (the "Term").
Provided that Sublessor has not exercised its option to terminate the
Overlease on April 30, 2000, as provided in the Overlease, Sublessee shall have
the right to extend the term of this Sublease for two years, such that the
Sublease will expire on April 30, 2002. In order to exercise this option,
Sublessee must provide Sublessor with written notice of its exercise no later
than nine (9) months prior to the expiration of this Sublease.
Provided that Sublessee has exercised its extension option and is not then
in default hereunder beyond the expiration of any applicable cure period,
Sublessee shall have the right to terminate this Sublease at any time after May
1, 2000 upon the following terms and conditions: Sublessee must deliver to
Sublessor a notice of its intent to terminate this Sublease at least nine (9)
months prior to the proposed termination date. Such notice of termination may be
given no earlier than May 1, 2000, and, to be effective, such notice of
termination must be accompanied by a payment of $100,000.00 in good and
immediately available funds, and upon Sublessor's receipt of such notice and the
$100,000.00 payment, the termination date of this Sublease shall be changed to
the date that is nine (9) months after the date of such notice.
Effective on May 1, 2001, the termination payment for any notice of
termination given on or after May 1, 2001, will be reduced to $50,000.00,
provided that the Sublessee otherwise complies with all provisions of the
previous paragraph.
3. Fixed Rent. Sublessee covenants and agrees to pay to Sublessor without
setoff or deduction, rent (the "Fixed Rent") in equal monthly installments in
advance on the first day of each month of the Term at Sublessor's address shown
herein or at such place as Sublessor shall from time to time designate in
writing as follows:
Lease Year Monthly Fixed Rent
---------- ------------------
May 1, 1996-June 30, 1997 $ 9,208.33
July 1, 1997-April 30, 2000 $11,136.66
a. If the Sublessee extends the Term as provided in Section 2 hereof, from
May 1, 2000 and continuing to April 30, 2002, Sublessee will pay monthly rent of
Eleven Thousand One Hundred Thirty Six Dollars and 66/100 ($11,136.66).
b. If the Term includes a partial calendar month at its beginning or end,
the monthly installment of Rent for such partial month shall be prorated at the
rate of 1/30 of the monthly installment for each day in such partial month
within the Term and shall be payable in advance on the first day of such partial
month occurring within the Term.
4. Additional Rent. Sublessee covenants and agrees to pay monthly to
Sublessor as additional rent, upon payment of monthly installments of Fixed
Rent, Sublessee's proportionate share of all Operating Expenses and utilities
due from Sublessor to Landlord or any public utility under Sections 5 and 7 of
the Overlease on account of the Subleased Premises. Sublessee's proportionate
share is defined herein as 24%.
5. Additional Sublessor Covenants. Sublessor hereby covenants:
a. To pay all rents as they come due; subject to the provisions of Section
6(b) below, to repair and maintain in good working order the Subleased Premises,
including the HVAC and utility systems exclusively serving the Main Premises and
the Subleased Premises and to timely perform all of its other obligations under
the Overlease; and to promptly provide Sublessee with copies of all notices it
receives under the Overlease which relate to the Subleased Premises.
b. Sublessor further agrees to indemnify and hold Sublessee harmless from
any and all damages, costs, losses and the like suffered by Sublessee as a
result of a breach by Sublessor of any of its obligations arising under or
pursuant to the Overlease, said indemnification to include, without limitation,
reasonable attorney's fees, unless such breach was caused by a default of
Sublessee hereunder.
c. That Sublessee, upon paying the rent and performing the covenants of
this Sublease Agreement, shall peacefully and quietly have, hold and enjoy the
Subleased Premises and all rights granted to Sublessee in this Sublease
Agreement throughout the Term.
d. To diligently pursue enforcement of Landlord's obligations under the
Overlease if failure to perform such obligations materially, adversely affects
Sublessee's use or occupancy of the Subleased Premises. In no event shall
Sublessee have an independent right to enforce the Landlord's obligations under
the Overlease, nor shall Sublessee be subrogated to the rights of Sublessor to
enforce the Landlord's obligations under the Overlease.
e. For so long as Sublessee is not in default hereunder beyond applicable
cure periods, to provide Sublessee with support services, in addition to those
provided to the Main Premises by Landlord pursuant to the provisions of the
Overlease, for Sublessee's operations in the Subleased Premises. Sublessee shall
pay Sublessee's proportionate share of the cost for such support services as
additional rent upon payment of installments of Fixed Rent. Sublessee and
Sublessor will negotiate a mutually satisfactory services agreement for the
provision of such services to Sublessee by Sublessor.
f. To obtain and maintain all facility-based (as opposed to use or operator
based) local, state and federal permits and approvals necessary to operate the
Main Premises and the Subleased Premises for all Permitted Uses.
g. To indemnify, defend and hold Sublessee harmless from and against any
claim arising from Sublessor's use of the Main Premises; or the conduct of its
business or from any activity, work or thing done, permitted or suffered by
Sublessor on or about the Main Premises, or arising from any breach of
Sublessor's obligations hereunder, and from any claim for injury or damage to
any person or property while on or about the Sublessor's Premises; except for
any claim arising solely as a result of the negligence or willful misconduct of
Sublessee or Sublessee's employees or agents. This indemnification shall
specifically include indemnification under the provisions of Section 13.2 of the
Overlease with respect to any Hazardous Substance on the Subleased Premises.
h. To promptly report to Sublessee any incidents in which its employees,
agents or contractors report an illness or other adverse health effects
attributable to the Subleased Premises, the Building or any of the equipment,
fixtures or furnishings therein.
6. Additional Sublessee Covenants. Sublessee hereby covenants:
a. To comply with all the terms and provisions of the Overlease applicable
to the Subleased Premises except those terms that apply to the payment of Fixed
Rent and additional rent, and except Sections 9.15, 15.2, and 15.3 of the
Overlease, and to do nothing which will subject the Overlease to termination by
Landlord under the provisions of the Overlease,.
b. To maintain the Subleased Premises in the same condition as they are at
the commencement of the Term, reasonable wear and tear, damage by fire and other
casualty and eminent domain excepted. In the event that Sublessee defaults in
its obligations under this paragraph (b), Sublessor may, after at least ten (10)
days prior notice to Sublessee (except in an emergency, when no notice will be
required) cure such default, in which event Sublessee shall reimburse Sublessor
for any costs incurred by Sublessor to cure such default.
c. To remove all of Sublessee's personal property, business equipment,
goods and effects from the Subleased Premises at the earlier expiration or
termination of this Sublease Agreement and to deliver to Sublessor the Subleased
Premises in the same condition as they were at the commencement of the Term, or
as they were put in during the Term, reasonable wear and tear, damage by fire or
other casualty or eminent domain excepted. In the event of Sublessee's failure
to remove any of Sublessee's property from the Subleased Premises, Sublessor is
hereby authorized, without liability to Sublessee for loss or damage thereto,
and at the sole risk of Sublessee to remove and store any of such property at
Sublessee's expense, or to retain the same under Sublessor's control or to sell
at public or private sale, upon at least ten (10) days 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. Any remaining
balance will be paid to Sublessee.
d. In addition to the indemnification and obligations set forth in Section
13.2 of the Overlease (which apply to the Subleased Premises), to indemnity,
defend and hold the Sublessor harmless from and against any claim arising from
Sublessee's use of the Subleased Premises or the conduct of its business or from
any activity, work or thing done, permitted or suffered by Sublessee on or about
the Subleased Premises, or arising from any breach of Sublessee's obligations
hereunder, and from any claim for injury or damage to any person or property
while on or about the Subleased Premises, except for any claim arising solely as
a result of the negligence or willful misconduct of Sublessor or Sublessor's
employees or agents. This indemnification shall specifically include
indemnification under the provisions of Section 13.2 of the Overlease with
respect to any Hazardous Substance on the Subleased Premises.
e. To maintain comprehensive general liability insurance in amounts which
shall, at the beginning of the Term, be not less than those limits set forth in
Section 6 of the Overlease, and from time to time during the Term, in such
additional amounts which are customarily carried in the Greater Boston area on
property similar to the Building and used for similar purposes; Sublessee shall
also maintain all-risk property insurance for Sublessee's property. Prior to the
commencement of the Term, Sublessee shall deliver to Sublessor certificates of
all required insurance coverage naming Sublessor, Landlord and Landlord's
Mortgagee as additional insureds.
f. To obtain and maintain all local, state and federal permits and
approvals necessary solely for the conduct of Sublessee's business in the
Subleased Premises.
g. To comply with all applicable local, state and federal laws and
cooperate with Sublessor's health and safety regulations applicable to the
Subleased Premises.
h. To use the Subleased Premises only for the Permitted Uses set forth in
the Overlease, in compliance with applicable law, provided that if Sublessee's
production of any biological products shall result in a material increase in the
utility usage of the Subleased Premises, or if Sublessor's production of any
biological products shall result in a material increase in the utility usage of
the Main Premises, the parties hereto shall mutually agree upon an adjustment in
Sublessee's proportionate share of the cost of utilities to be paid by Sublessee
to Sublessor in accordance with the provisions of Paragraph 4 hereof. Subject to
the foregoing, Sublessor and Sublessee also agree that Sublessee shall have the
right to conduct animal research in the Subleased Premises, provided that (1)
Sublessee obtains all necessary federal, state and local approvals for such use
prior to commencement of such use, and (2) Sublessee and Sublessor mutually
agree upon the location of the room(s) in which the animals will be housed,
Sublessee's procedures for maintaining and operating such room and the animals
contained in such room. Sublessor shall thereafter have the right to monitor
Sublessee's compliance with all necessary permits for maintaining such use.
Sublessor's consent to the location of such animal room and Sublessee's
procedures for maintaining and operating such room will not be unreasonably
withheld, conditioned or delayed.
i. To appoint a representative or representatives to serve on the relevant
health and safety committees for the Building, and to provide Sublessor with
copies of all safety committee minutes, and to promptly notify Sublessor of any
safety concerns of Sublessee that arise out of such committee meetings, or
otherwise.
j. To regularly perform janitorial services and extermination services,
as necessary, to the Subleased Premises.
k. To, in accordance with a separate agreement with Landlord, construct
$250,000.00 of improvements to the Subleased Premises, which improvements will
remain part of the Subleased Premises on the expiration of the Term, and may not
be removed by Sublessee, unless such removal is required by Sublessor at the
time Sublessor approves the construction of such improvements. Sublessor shall
have the right to consent to the construction of such improvements, and in
obtaining such consent Sublessor and Sublessee shall follow the procedures set
forth in Section 10.b of a certain Settlement, Escrow and Security Agreement of
even date between Sublessee and Landlord, and Section 10.b of such Agreement is
incorporated herein by reference. Sublessor has consented to the schematic
showing some of the planned improvements that is attached hereto as Exhibit C,
and will not unreasonably withhold its consent to the remainder of the
improvements planned by Sublessee.
l. To be responsible for compliance with the provisions of the Americans
with Disabilities Act with respect to the Subleased Premises and all
improvements to be constructed in the Subleased Premises.
7. Condition and Alterations. By its execution hereto, Sublessee
acknowledges that:
a. Sublessee has inspected the Subleased Premises and accepts the same "AS
IS." Sublessor shall have no obligation or duty to Sublessee regarding the
preparation of the Subleased Premises for occupancy of Sublessee.
b. Other than the improvements to be constructed by Sublessee in accordance
with Section 6(k) hereof, in the event Sublessee desires to make alterations or
improvements to the Subleased Premises, Sublessee shall obtain the prior written
consent of both Sublessor and Landlord prior to conducting any such alterations
or improvements, and the approval process shall be as outlined in Section 9.4 of
the Overlease.
8. Fire, Casualty and Eminent Domain. In the event the Subleased Premises,
or a portion thereof, are rendered substantially unsuitable for their intended
use by fire or other casualty or are taken by eminent domain, a just and
proportionate abatement of rent shall be made to the extent Sublessor is
entitled to an abatement of rent under the Overlease. Sublessee hereby releases
and assigns to Sublessor all of Sublessee's right, title and interest in and to
any and all damages or injury to the Subleased Premises for any taking by
eminent domain or by reason of anything lawfully done in pursuance of public
authority. Sublessee further covenants to deliver such further assignment and
assurances thereof as Sublessor may from time to time request, hereby
irrevocably designating and appointing Sublessor as its attorney-in-fact to
execute anal deliver in Sublessee's name and behalf all such further assignments
thereof.
9. Common Space. Sublessor and Sublessee shall share use of the common
areas marked on Exhibit B, the common loading and receiving areas, and the
common hallways. Sublessor shall maintain such areas, as provided in the
Overlease, and Sublessee shall pay Sublessor for such maintenance as provided in
the services agreement to be signed by Sublessor and Sublessee.
10. Access to Subleased Premises. Sublessee shall, promptly after execution
of this Sublease, and no later than ninety (90) days after execution of this
Sublease, install at Sublessee's sole cost, a new front entry for the Subleased
Premises in the location shown on Exhibit B, and to construct all walls
necessary to physically separate the Subleased Premises from the Main Premises.
Such entry and walls shall be constructed to the satisfaction of both Sublessor
and Landlord. In addition, Sublessee shall have access to the Main Premises to
remove its equipment from the Main Premises, as provided in a Settlement, Escrow
and Security Agreement between Landlord and Sublessee of even date, such access
to terminate on June 15, 1996; or to construct the improvements to be
constructed in accordance with Section 6(k) hereof, if such access is necessary.
All such access shall be upon prior notice to Sublessor, shall be at Sublessee's
sole risk, notwithstanding any provision to the contrary herein, shall not
unreasonably interfere with the Sublessor's operation of its business, and
Sublessee indemnifies Sublessor from all claims, loss or damage related to such
access, and Sublessee agrees not to store any equipment in any conference room
of Sublessor or other location, during any such period of access.
11. Estoppel Certificate. Sublessee agrees, from time to time, upon not
less than ten (10) days' prior written request by either Sublessor or Landlord,
to execute, acknowledge and deliver to Sublessor a statement in writing,
addressed to such party as either Sublessor or Landlord shall designate in its
notice to Sublessee, certifying that this Sublease Agreement is unmodified and
in full force and effect and that Sublessee has no defenses, offsets or
counterclaims against its obligations to pay the Fixed Rent and additional rent
and to perform its other covenants under this Sublease Agreement (or if there
have been any modifications that the same is in full force and effect as
modified and stating the modifications and, if there are any defenses, offsets,
counterclaims or defaults, setting them forth in reasonable detail), the dates
to which the Fixed Rent and additional rent have been paid, a statement that
Sublessor is not in default hereunder (or if in default, the nature of such
default, in reasonable detail and any additional information reasonably
requested by either Sublessor or Landlord. Any such statement delivered pursuant
to this Section 12 may be relied upon by any prospective purchaser or mortgagee
of the Subleased Premises.
12. Sublease Subordinate. This Sublease Agreement shall be subject and
subordinate to any mortgage now or hereafter placed on the Main Premises,
or any portion or portions thereof or interest therein. This Section 13 shall be
self-operative and no further instrument of subordination shall be required.
13. Waiver of Subrogation. Any insurance carried by either party with
respect to the Main Premises (or any portion thereof and property therein or
occurrence thereon) shall, if it can be so written without additional premium,
or with an additional premium which the other party agrees to pay, include a
clause or endorsement denying to the insurer rights of subrogation against the
other party to the extent rights have been waived by the insured prior to
occurrence of injury or loss. Each party, notwithstanding any provisions of this
Lease to the contrary, hereby waives any rights or recovery against the other
for injury or loss due to hazards covered by insurance containing such clause or
endorsement to the extent of the indemnification received thereunder.
14. Access. Upon reasonable advance notice and at reasonable times, subject
to Sublessee's security practices and in such manner as to minimize interruption
of Sublessee's business operations, except in cases of emergency, in which case
no such notice shall be required, Sublessor or its representative may enter to
view the Subleased Premises to assure compliance with the terms of this Sublease
Agreement and for purposes of carrying out its maintenance and repair
obligations hereunder.
15. Assignment and Subletting. Sublessee shall not assign or Sublease the
Subleased Premises or any portion thereof, without the prior written consent of
Sublessor and Landlord, which consent may be withheld in the sole discretion of
either Sublessor or Landlord. Provided, however, that Sublessee may sublet a
portion of the Subleased Premises to Union Biometrica, Inc., upon prior written
notice to Sublessor and Landlord of such subletsublet no consent of either
Landlord or Sublessor shall be require, provided that such Sublease shall state
that it shall be wholly subject and subordinate to the terms of the Overlease
and this Sublease. Any such Sublease shall provide that it will terminate
immediately upon any default, beyond applicable cure periods, of Sublessee or
Sublessor under the Sublease and Lease, respectively.
16. Relationship between Sublessor and Sublessee. The parties hereto agree
that the relationship between Sublessor and Sublessee hereunder shall, except as
otherwise provided herein, be governed by the provisions of the Overlease as if
they were Landlord and Tenant under the Overlease.
17. Notices. All notices required or permitted hereunder shall be in
writing and shall be deemed duly served if and when delivered by hand, by
overnight courier (nationally recognized) or mailed by registered, or certified
mail, postage prepaid, return receipt requested, and addressed;
If to Sublessor: T Cell Sciences, Inc.
115 Fourth Avenue
Dedham, MA 02192
Attention: General Counsel
with copies to: Robert Orsi, Esq.
Tarlow, Breed, Hart, Murphy & Rodgers, P.C.
21 Custom House Street
Boston, MA 02110
If to Sublessee: Repligen Corporation
117 Fourth Avenue
Needham, MA 02192
Attention: Walter Herlihy
with copies to: Testa, Hurwitz & Thibeault, L.L.P.
125 High Street
Boston, MA 02110
ATTN: Real Estate Department
Any of the persons named in this Section 17 may change the address for notices
by written notice sent to each of the other persons at the addresses as set
forth herein.
18. Severability. If any provision of this Sublease Agreement shall to
any extent be determined by any court of competent jurisdiction to be
invalid or unenforceable for any reason. the parties agree to amend this
Sublease Agreement so as to effectuate the original intent of Sublessor and
Sublessee.
19. Entire Agreement. Except for the services agreement to be executed
between the parties, this Sublease Agreement is the entire agreement between the
parties relating to the sublease or the Subleased Premises. This Sublease
Agreement may not be amended, altered or modified except by instrument in
writing and executed by Sublessor and Sublessee.
21. Governing Law. This Sublease Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of Massachusetts.
22. Bind and Inure. This Sublease Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors
and assigns.
23. Defined Terms. All capitalized terms not otherwise defined herein
shall have the meaning ascribed thereto in the Overlease.
24. Brokerage. Each of Sublessor and Sublessee represents and warrants that
it has not had any dealings with any realtors, brokers or agents in connection
with the negotiation of this Sublease. Each party shall defend, hold harmless
and indemnify the other and Landlord from and against any claims, liabilities,
losses or expenses, including reasonable attorneys fees, incurred by the other
or Landlord in connection with any breach of the foregoing representation and
warranty by such party.
25. Notwithstanding any contrary provision of this Sublease, in any
instance where a specific cure period is granted to Sublessor, as Tenant under
the Lease, before Sublessor is considered to be in default under the Lease, the
Sublessee, as tenant under this Sublease, shall be deemed to have the same cure
period, less three days, before Sublessee is considered in default beyond
applicable cure periods under this Sublease, except in the event of a failure in
the performance of any of Sublessee's obligations to pay any sum payable under
this Sublease, as to which the cure period shall be three days following receipt
of written notice of such default from Sublessor..
26. Sublessor's Representations and Warranties. Sublessor warrants and
represents that:
(i) The copy of the Overlease attached to this Sublease as Exhibit A
is a complete and accurate copy of the Overlease, which is in effect
and has not been amended;
(ii) To the best of Sublessor's knowledge, Landlord is not in default
under the Overlease, nor has any event occurred which, after any
applicable notice and/or the expiration of any grace period, shall
constitute a default by Landlord under the Overlease;
(iii) To the best of Sublessor's knowledge, Sublessor is not in
default under the Overlease, nor has any event occurred which, after
any applicable notice and/or the expiration of any grace period, shall
constitute a default by Sublessor under the Overlease;
(iv) All rent, additional rent and other charges due under the
Overlease have been paid as required through May 31, 1996;
(v) The Overlease is in full force and effect;
(vi) Landlord has represented to Sublessor that the Overlease has not
been encumbered by any prior transfer, assignment or encumbrance other
than a mortgage to Baybank, and to Metpath; and
(vii) Sublessor has full and lawful authority to enter into this
Sublease, subject only to Landlord's consent.
c. Notwithstanding the foregoing, as between Sublessor and Sublessee, the
terms and conditions hereof shall be controlling whenever the terms and
conditions of the Overlease are contradictory to or inconsistent with the terms
and conditions hereof. Sublessor shall, upon written request by Sublessee, at
Sublessee's cost use diligent efforts to obtain from Landlord all permissions,
consents, approvals and documents needed by Sublessee to perform any act
permitted by this Sublease by reason of the incorporation by reference of the
terms, covenants and conditions of the Overlease, but Sublessee shall bear any
monetary costs associated with obtaining such consents.
EXECUTED under seal as of the date first hereinabove set forth.
Sublessor:
T CELL SCIENCES, INC.
By: Alan W. Tuck, President
Sublessee:
REPLIGEN CORPORATION
By: Avery W. Catlin, Vice President, Finance