EXHIBIT 10.1
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(the "Building")
SUBLEASE
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March 15, 2000
Reference is made to a certain Lease dated June 16, 1997, as amended by a
First Amendment dated August 10, 1998 (collectively, the "Lease") by and between
BP Prucenter Acquisition LLC, successor in interest to The Prudential Insurance
Company of America, as landlord ("Prime Landlord") and Creative BioMolecules,
Inc., as tenant ("Landlord"), with respect to premises ("Premises") containing
10,482 rentable square feet located on the twenty-fourth (24th) floor of the
Building.
WHEREAS, Landlord desires to sublease the Premises ("Sublet Premises") to
Tenant;
WHEREAS, Tenant desires to sublease the Sublet Premises on the terms and
conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the rents to be paid by Tenant to
Landlord and the full and complete performance of all terms, covenants, and
conditions herein contained to be performed by Landlord and Tenant, the parties
hereto hereby agree as follows:
I. SUBLEASE OF SUBLET PREMISES FROM LANDLORD TO TENANT
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Landlord hereby demises and subleases the Sublet Premises to Tenant,
and Tenant hereby hires and takes the Sublet Premises from Landlord. This
Sublease shall be upon all of the same terms and conditions of the Lease (with
Landlord under this Sublease as the Landlord under the Lease, and Tenant under
this sublease as the Tenant under the Lease), except to the extent inconsistent
with the provisions of this Sublease (in which event the provisions of this
Sublease shall control).
II. DEFINITIONS
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All of the terms used in this Sublease shall have the same definitions as
set forth in the Lease, except as herein set forth:
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LANDLORD: Creative BioMolecules, Inc.
TENANT: BP ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ LLC
PRIME LANDLORD: BP Prucenter Acquisition LLC
COMMENCEMENT DATE: The later of (x) July 1, 2000 or (y) the date that
Landlord vacates the Sublet Premises.
TERMINATION DATE: July 31, 2002
ANNUAL RENT: $482,172.00 (i.e. a monthly payment of $40,181.00)
III. TERM
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The term of this Sublease shall commence as of the Commencement Date, and
shall, subject to the provisions of this Sublease and the Consent to Sublease,
terminate as of the Termination Date. Notwithstanding anything to the contrary
herein or in the Lease contained, if Landlord holds over in the Sublet Premises
beyond July 1, 2000, then Tenant shall be entitled to one and one-half (1 1/2)
days of free rent for each day of holdover by Landlord from and after July 1,
2000.
IV. CONDITION OF THE SUBLET PREMISES
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Tenant shall take the Sublet Premises "as-is", in the condition in
which the Sublet Premises are in as of the Commencement Date, without any
obligation on the part of Landlord to prepare or construct the Sublet Premises
for Tenant's occupancy, Tenant hereby acknowledging that Landlord has made no
representation or warranty to Tenant as to the condition of the Sublet Premises.
V. PAYMENT OF RENT
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A. All rent payable under this Sublease shall be paid by Tenant to
Landlord at the address set forth in Article XI of this Sublease, or such other
place as Landlord may designate in writing to Tenant
B. Commencing as of the Commencement Date, and continuing thereafter
throughout the term of this Sublease, the Annual Rent shall be payable on the
first day of each month in advance. If the termination of the term of this
Sublease occurs on other than the last day of a calendar month, the Annual Rent
for such month shall be pro-rated.
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VI. ADDITIONAL RENT
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A. Commencing as of the Commencement Date, and continuing thereafter
throughout the term of this Sublease, Tenant shall pay Tenant's Share of
Increased Operating Expenses and Tenant's Share of increased Real Estate Taxes
in respect of the Sublet Premises in accordance with Sections 3.2 and 3.4 of the
Lease and in accordance with Paragraphs 1(C) and (D) of the First Amendment.
B. Tenant shall pay directly to Boston Edison the cost of electricity
used for and in the Sublet Premises pursuant to Section 3.3 of the Lease.
VII. END OF TERM; HOLDING OVER
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Tenant covenants and agrees to vacate and surrender the Sublet Premises to
Landlord, in broom clean condition, free of personal property, furniture and
fixtures, on or before expiration or the earlier termination of the term of this
Sublease, as the case may be. Any holdover by Tenant shall, at Landlord's
option, be treated as a daily tenancy at sufferance at a daily rate based upon
twice the rental rate payable by Landlord to Prime Landlord in respect of such
hold over period, and shall otherwise be on the terms and conditions of this
Sublease so far as the same may be applicable. In addition, Tenant shall
indemnify, defend, and hold Landlord harmless from and against any loss, cost or
damage arising from Tenant's breach of its obligation to deliver the Sublet
Premises to Landlord on a timely basis in accordance with this Paragraph VIII
(including, without limitation, any charges which Landlord may owe to Prime
Landlord as the result of such hold-over).
VIII. TENANT ALTERATIONS; SIGNS
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A. Tenant shall not make any alteration, installation, removal,
addition or improvement ("Installations") to the Sublet Premises and Tenant
shall have no right to install any signage in the Sublet Premises or the
Building without obtaining Landlord's prior written consent. Without limiting
the foregoing, Tenant's right to make any such Installations shall be subject to
all of the restrictions and conditions set forth in the Lease.
B. Tenant hereby agrees that, at Landlord's election, Tenant shall, at
its sole cost and expense, remove any Installations made by Tenant in the Sublet
Premises and shall repair any damage to the Sublet Premises or the Building
caused by the installation or removal of such Installations.
IX. INDEMNITY, SUBROGATION, AND LIABILITY INSURANCE
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1. Tenant's indemnity, as set forth in Section 11.1 of the Lease shall
run in favor of both Landlord and Prime Landlord.
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2. Tenant's liability insurance, which Tenant is required to carry
pursuant to Article 11 of the Lease shall insure both Landlord and Prime
Landlord as additional insured parties.
3. Tenant hereby waives any claim which it has against either Landlord or
Prime Landlord based upon damage to property caused by a peril which could have
been insured against under a fire and extended coverage insurance policy, with
so-called "All-Risk" rider, whether or not Tenant actually maintains such
insurance and whether or not such damage is caused by the negligence of Tenant
or Prime Landlord, or their respective agents, employees, or contractors.
X. SUBLEASE SUBJECT TO LEASE
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Tenant acknowledges that this Sublease is subject and subordinate in all
respects to the Lease (including, without limitation, Prime Landlord's rights of
access to the Sublet Premises and its right to terminate the Lease in the event
of certain takings and casualties). Therefore:
1. Tenant agrees that it will not take any action which would constitute
a default under the Lease, as applicable to this Sublease, and Tenant agrees to
indemnify, defend, and hold Landlord harmless from and against any and all
liability, loss, cost, damage or expense, including reasonable attorneys fees,
arising out of or in connection with any act or failure on the part of Tenant
which constitutes a default under this Sublease or under the Lease.
2. Wherever Landlord's consent is required under this Lease, the consent
of Prime Landlord shall also be required. It is understood and agreed that
Landlord shall not be deemed to be unreasonable in withholding its consent if
Prime Landlord has not granted its consent.
3. Tenant acknowledges and agrees that Landlord shall have no obligation
to provide any services to the Sublet Premises, to perform any maintenance of or
repairs to the Sublet Premises or the Building, or to perform any obligation
which is required to be performed by Prime Landlord under the Lease.
4. Tenant acknowledges and agrees that Landlord shall have no liability
or obligation to Tenant based upon any act or omission of Prime Landlord or the
agents, employees, or contractors of Prime Landlord. Without limiting the
foregoing, Landlord shall have no liability to Tenant, and Tenant's obligation
to pay rent due under this Sublease shall not be reduced or abated, in the event
that Prime Landlord fails to provide any service, to perform any maintenance or
repairs, or to perform any other obligation which Prime Landlord is required to
provide or to perform pursuant to the Lease. Landlord, upon the written request
of Tenant, from time to time, shall use reasonable efforts to require Prime
Landlord to perform its obligations under the Lease.
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XI. NOTICES
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Any notices required or permitted to be sent under this Sublease shall be
sent to the following addresses, or such other addresses as either party may
advise the other:
To Landlord: Creative BioMolecules, Inc.
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To Tenant: BP ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ LLC
c/o Boston Properties Limited Partnership
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XII. BROKER
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Landlord and Tenant warrant and represent to each other that each has dealt
with no broker or agent in connection with this Sublease. Tenant agrees to
indemnify, defend, and hold Landlord harmless of and from all claims (including
reasonable attorneys fees and expenses) which may be made by any person against
Landlord for breach of Tenant's warranty. Landlord agrees to indemnify, defend
and hold harmless Tenant from all claims (including reasonable attorneys fees
and expenses) which may be made by any person against Tenant for breach of
Landlord's warranty.
XIII. TIME PERIODS
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Recognizing that the relationship between Landlord and Tenant is a sublease
and that, in the event of an action required or failed to be taken by Tenant
hereunder may place Landlord in default of its obligations under the Lease, the
parties hereby agree that Tenant shall have a shorter period of time to cure its
defaults and to exercise its rights under the Sublease than Landlord has under
the Lease. Therefore, and without limiting the foregoing, the following time
periods shall be applicable under this Sublease.
1. Monetary Default: Replace the seven (7) day period in Section 8.1(a)
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with a three (3) day period.
2. Non-Monetary Default: Replace the thirty (30) day period in Section
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8.1(f) with a fifteen (15) day period.
XIV. ADDITIONAL INAPPLICABLE LEASE PROVISIONS
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In addition to the inapplicable provisions of the Lease set forth above,
the following provisions of the Lease shall have no applicability to this
Sublease:
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Lease Cover Sheet
Section 1.4
Section 1.5
Section 2
Section 12.9
Exhibit B to the Lease
Paragraph 2, 3 and 4 of the First Amendment
XV. FURNITURE
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Reference is made to certain furniture to be purchased by Tenant from
Landlord, which Landlord shall leave in the Sublet Premises, a list of which
furniture is attached hereto as Exhibit B ("Purchased Furniture"). Tenant
shall, within ten (10) days after Landlord has vacated the Sublet Premises, pay
to Landlord Three Hundred Fifty Thousand and 00/100 ($350,000.00) Dollars as
payment in full for the Purchased Furniture.
XVI. CONSIDERATION FEE
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In consideration of Landlord's agreement to sublease the Sublet Premises to
Tenant, Tenant shall, within ten (10) days after Landlord has vacated the Sublet
Premises, pay to Landlord a fee ("Consideration Fee") of One Hundred Twenty-Five
Thousand and 00/100 ($125,000.00) Dollars.
XVII. ASSIGNMENT AND SUBLEASING
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A. Notwithstanding anything to the contrary herein or in the Lease
contained, Tenant shall have the right, without the consent of Landlord, but
upon written notice to Landlord, to assign Tenant's interest in the Sublease to
Boston Properties Limited Partnership. In such event, Boston Properties Limited
Partnership shall assume all of Tenant's obligations under the Sublease arising
from and after the effective date of the assignment and Tenant shall be released
from all obligations of Tenant under the Sublease arising from and after the
effective date of the assignment.
B. Notwithstanding anything to the contrary herein or in the Lease
contained, Tenant shall have the right, without the consent of Landlord, but
upon written notice to Landlord, to sublet all or any portion of the Sublet
Premises to prospective tenants with whom Tenant, or an affiliate of Tenant, is
negotiating for space in the Building, in ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, or in the
building being constructed at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
XVIII. CONSENT OF PRIME LANDLORD
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The parties hereby acknowledge and agree that this Sublease shall not be
effective unless and until the parties have obtained the consent of the Prime
Landlord.
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EXECUTED UNDER SEAL as of the date first above-written.
LANDLORD:
CREATIVE BIOMOLECULES, INC.
By:__________________________________
(Name) (Title)
TENANT:
BP ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ LLC
By: Boston Properties Limited Partnership,
a Delaware limited partnership,
Its: Member
By: Boston Properties, Inc.,
a Delaware corporation
Its: General Partner
By:___________________
Name:_________________
Its:____________________
Hereunto Duly Authorized
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EXHIBIT A
PLAN OF SUBLET PREMISES
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EXHIBIT B
LIST OF FURNITURE
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