Exhibit 10.12
SUBLEASE
This instrument is a Sublease (the "Sublease") dated as of January __,
1999 between MITOTIX, INC., a Delaware corporation ("Sublessor"), and DYAX
CORP., a Delaware corporation ("Sublessee").
The parties to this instrument hereby agree with each other as follows:
Article I
SUMMARY OF BASIC SUBLEASE PROVISIONS
1.1 BASIC DATA
ALL CAPITALIZED TERMS USED HEREIN SHALL HAVE THE MEANINGS ASCRIBED TO THEM IN
THE PRIME LEASE (hereinafter defined) UNLESS OTHERWISE DEFINED HEREIN.
Commencement Date: February 1, 1999
Sublessor: Mitotix, Inc.
Present Mailing Address of Sublessor: Xxx Xxxxxxx Xxxxxx, Xxxxxxxx 000
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Sublessee: Dyax Corp.
Present Mailing Address of Sublessee: Xxx Xxxxxxx Xxxxxx, Xxxxxxxx 000
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Permitted Uses: General office research and
development, laboratories, light
manufacturing, marketing, storage and
sale of biologically derived products
in connection with biological and
chemical research.
Premises: Approximately 7,620 rentable square
feet of space located on the second
floor of the building known as
Building 000-000-000 (the "Building")
located at Xxx Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxxxxx as
approximately shown on the attached
Exhibit A. The Premises demised under
this Sublease comprise a portion of
the premises leased (the "Leased
Premises") to Sublessor by Prime
Lessor (as defined below) under the
Prime Lease (as defined below).
Prime Lease: That certain lease, dated as of
November 5, 1992, between the Trustees
of Old Xxxxxxx Trust (the "Initial
Prime Landlord"), as lessor, and
Sublessor, as lessee, as amended to
date.
Prime Lessor: Cambridge Athenaeum LLC, as successor
to the Initial Prime Landlord.
Base Rent (based on 7,620 rentable $304,800.00 per annum ($40.00 per
square fee) rentable square feet), payable in
monthly installments of $25,400.00
each.
Additional Rent: So that the Base Rent payable to
Sublessor hereunder shall be net to
Sublessor (except for the exclusions
described below), Sublessee shall pay
as additional rent hereunder: (a)
Sublessee's Share of all amounts in
the nature of pass throughs of
operating expenses, insurance charges
and charges for utility usage payable
by Sublessor as tenant under the Prime
Lease to the Prime Lessor in
connection with operating expenses,
insurance charges and utility charges
attributable generally to the Building
or the Leased Premises under the Prime
Lease, including the Premises,
specifically including, without
limitation, all amounts paid by
Sublessor to Prime Lessor as "Rent
Adjustments" under Sections 5.1 - 5.4
of the Prime Lease (in that regard,
Sublessor shall deliver to Sublessee a
copy of the annual statement of
operating expenses received by
Sublessor from Prime Lessor under
Section 5.3 of the Prime Lease and a
copy of the tax bills and statement of
taxes received by Sublessor from Prime
Lessor under Section 5.4 of the Prime
Lease); (b) Sublessee's Share of all
charges and costs attributable to the
Leased Premises under the Prime Lease
which are also allocable to the
Premises hereunder (including, without
limitation dumpster charges and
costs), (c) any expenses, taxes,
insurance charges, and utility charges
that are (i) incurred by Sublessor in
connection with its providing of those
utilities, maintenance and repair
services required to be provided by
Sublessor under the terms of this
Sublease and (ii) applicable
exclusively to the Premises; (d) any
additional
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costs incurred by Sublessor in
connection with its provision of those
utilities, maintenance and repairs
which Sublessor is required under the
terms of this Sublease to provide to
the Premises. Such Additional Rent
shall exclude however, the following:
(a) costs attributable solely to those
portions of the Leased Premises
retained by Sublessor and not to the
Premises demised hereunder; (b) costs
payable by Sublessor as tenant under
the Prime Lease in the nature of late
penalties or interest, damages payable
on account of tenant defaults,
accelerated rents or charges except to
the extent any such costs are incurred
in connection with a default by
Sublessee under this Sublease; (c) any
costs for utilities or the like that
are separately metered to the Premises
and that Sublessee pays directly to the
utility company or service provider;
and (d) costs payable by Sublessor for
Sublessor's parking spaces in the Old
Xxxxxxx Square Garage in accordance
with Section 4(ii) of the Prime Lease.
Security Deposit: None.
Sublessee's Share: The rentable square footage of
Premises divided by the rentable
square footage of the Leased Premises,
expressed as a percentage; as of the
date of this Sublease, based upon the
Premises containing 7,620 rentable
square feet, Sublessee's Share shall
be 24.32%
Sublessee's Term or Term: Beginning on the Commencement Date and
expiring at midnight on June 30, 2000,
unless extended as provided herein.
Sublessee's Term Extension Rights: Notwithstanding any provision in this
Sublease to the contrary, Sublessee
shall have the following term
extension rights with respect to the
Term of the Sublease; Sublessee may
exercise such rights by giving
Sublessor written notice on or prior
to January 1, 2000, of Sublessee's
election of one of the following: (a)
to confirm that Sublessee intends to
vacate the Premises by June 30, 2000;
or (b) provided
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that Sublessee is not in default under
this Sublease beyond any applicable
notice, grace or cure period, to extend
the Term of the Sublease through
midnight on December 31, 2000, subject,
however to Sublessor's Recapture Rights
(as defined below), but otherwise on
all of the terms and conditions of this
Sublease.
Sublessor's Recapture Rights: If Sublessee exercises its right to
extend the Term through December 31,
2000, Sublessor may, by giving
Sublessee not less than six (6) months'
prior written notice, "recapture" the
portion of the Premises identified on
Exhibit A as the "Recapture Space".
Sublessor hereby agrees that it shall
exercise its recapture rights hereunder
if, and only if, Sublessor reasonably
and in good faith determines, at such
time as Sublessor gives Sublessee
notice of Sublessor's exercise of its
recapture rights, that Sublessor has a
need for, and intends to occupy and
use, the Recapture Space for the
conduct therein by Sublessor of its
business. Upon Sublessor's exercise of
its Recapture Rights hereunder, the
Sublease shall be deemed terminated
with respect to the Recapture Space on
the effective date specified in
Sublessor's recapture notice, and Base
Rent and other charges and Sublessee's
Share hereunder shall be equitably
adjusted to reflect the reduction of
Sublessee's usable square footage.
Broker: Xxxxxx Xxxxx & X'Xxxxxx, Inc. and Xxxxx
Xxxxxx Xxxxx and Partners, Incorporated
Sublessee's Parking Rights: None.
Article II
PREMISES
2.1 SUBLEASE OF PREMISES
Subject to and provided that Prime Lessor gives Prime Lessor's written consent
to the subleasing contemplated by the Sublease, Sublessor hereby subleases to
Sublessee, and Sublessee hereby
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accepts and subleases from Sublessor, upon and subject to the terms and
provisions of the Prime Lease, as both are defined in Section 1.1. Included as
part of the Premises sublet hereunder are all of Sublessor's appurtenant rights
under the Lease to use the common areas and facilities of the building and the
Lot (as defined in the Prime Lease), subject in all events to the Prime Lessor's
rights reserved and excepted in Section 2 of the Prime Lease.
2.2 PRIME LEASE
2.2.1 Sublessor hereby represents and warrants that : (i) Sublessor
is the tenant under the Prime Lease and has the full right to enter into this
Sublease (subject, however, to Prime Lessor' s consent); (ii) the Prime Lease is
in full force and effect; (iii) Sublessor has not received from Prime Lessor any
notice of any default on the part of Sublessor as tenant under the Prime Lease
which has not been cured, nor has Sublessor given Prime Lessor notice of any
default on the part of Prime Lessor as landlord under the Prime Lease which has
not been cured; (iv) Sublessor has submitted to Sublessee a true and complete
copy of those portions of the Prime Lease that are pertinent to or affect
Sublessee's rights and obligations under the Sublease; and (v) to the best of
Sublessor's knowledge and belief, the Premises and their electrical, mechanical,
plumbing, heating, ventilating and air-conditioning systems are in working order
and repair and in a condition adequate for the conduct in the Premises of
Sublessee's business. Sublessee warrants and acknowledges that it has reviewed
the Prime Lease and is satisfied with the arrangements therein reflected.
Sublessee also warrants that it is satisfied with the present condition of the
Premises (which Sublessee takes "as is" without any representation or warranty
by Sublessor regarding the condition of the Premises [except as set forth in
clause 2.2.1(v) above] or the fitness of the Premises for any particular use and
without any obligation of any kind on Sublessor to make any repairs or
improvements thereto in connection with Sublessee's occupancy) and with
Sublessee's ability to use the Premises on the terms herein set forth.
2.2.2 The Prime Lease is by this reference incorporated into and
made a part hereof, except that
(i) all references in the Prime Lease to "Landlord", "Tenant",
"Lease" and "Premises", respectively, shall be deemed to refer to
Sublessor, Sublessee, this Sublease and the Premises subleased
hereunder, respectively, except that all references in the following
sections and/or provisions of the Prime Lease to "Landlord",
"Tenant", "Lease", and "Premises", respectively, shall be deemed to
refer to "Prime Lessor", "Sublessee", this "Sublease" and the
"Premises subleased hereunder", respectively (i.e., it is the
intention of the parties that Prime Lessor shall retain all of its
rights and obligations under such sections and/or provisions; that
Sublessor shall not be entitled to exercise any of Prime Lessor's
rights, nor shall be bound by any of Prime Lessor's obligations,
under such sections and/or provisions, and that Sublessee shall be
entitled to exercise all of Tenant's rights, and shall be bound by
all of Tenant's obligations, under such sections and/or provisions):
(a) All of Section 2, except for the first sentence, relating
to appurtenant rights and Prime Lessor's reserved rights.
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(b) Section 6 (Utilities and Other Services), except that to
the extent utilities are not separately metered for the Premises,
Sublessee shall make payments on account of utilities to Sublessor
as Additional Rent under this Sublease and not to Prime Lessor.
(c) The first grammatical paragraph of Section 9A (Insurance -
Waiver of Subrogation), except that the comprehensive general
liability insurance that Sublessee must procure thereunder shall
also name Sublessor as an additional insured and the indemnity
provided in such Section shall inure to the benefit of Sublessor.
(d) Section 10 (Maintenance of Leased Premises), except that
Sublessee shall be deemed to be obligated to maintain and operate
the Premises in the condition required thereunder not only for the
benefit of Prime Lessor, but also for the benefit of Sublessor, who
shall be entitled to enforce Sublessee's maintenance obligations and
other covenants thereunder.
(e) Section 13 (Subordination)
(f) Sections 17.1 - 17.3 (Fire, Casualty)
(g) Section 17A (Eminent Domain)
(h) Section 19 (Rules and Regulations)
(ii) the following sections and/or provisions of the Prime
Lease are expressly excluded from this Sublease (i.e., they shall be
deemed to be incorporated in this Sublease) either because they are
inapplicable or because they are superseded by specific provisions
hereof:
(a) Section 1 (Parties)
(b) The first sentence of Section 2 (Leased Premises),
relating to the description of the Premises, and the last
grammatical paragraph of Section 2, relating to parking rights in
the Xxxxxxx Square Garage.
(c) Section 3.1 (Term)
(d) Section 4 (Rent)
(e) Sections 5.1 through 5.4.4 (Rent Adjustments), except that
these provisions shall be included for the limited purpose of
determining the amount of Additional Rent payable by Sublessee on
account of Rent Adjustments payable by Sublessor under the Prime
Lease.
(f) Section 12 (Assignment - Subletting)
(g) Section 17.4 (Abatement of Rent)
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(h) Section 20 (Broker
(i) Section 22 (Notice)
(j) Section 24 (Option to Extend)
(k) Section 25 (Right of Second Opportunity)
2.2.3 This Sublease is and shall remain subject and subordinate in
all respects to the Prime Lease and to all renewals, modifications,
consolidations, replacements and extensions thereof. This Section 2.2.3 shall be
self-operative and no further instrument of subordination shall be required. In
the event of termination or cancellation of the Prime Lease for any reason
whatsoever with respect to all or any portion of the Premises, this Sublease
shall automatically terminate with respect to all or such portion of the
Premises.
2.2.4 Notwithstanding anything contained in this Sublease to the
contrary, Sublessor shall have no obligation during the term of this Sublease to
provide any services of any nature whatsoever to Sublessee or to, in or for the
benefit of the Premises or to expend any money for the preservation or repair of
the Premises, or to observe or perform any obligations of Sublessor under this
Sublease in any case where such services, expenditures or obligations are
required under the Prime Lease to be provided, performed or observed by Prime
Lessor for the benefit of Sublessor with respect to the Premises, and Sublessee
agrees to look solely and directly to Prime Lessor for the furnishing of any
such services, expenditure of any such sums, or observance or performance of any
such obligations to which, or the benefit of which, Sublessee may be entitled
under this Sublease, but nothing in the foregoing shall be deemed to exculpate
or otherwise release Sublessor from, or prevent Sublessee from looking directly
to Sublessor for, any liability arising out of Sublessor's negligence or the
failure of Sublessor to perform its express obligations hereunder; nor shall the
foregoing relieve Sublessor of its express obligations set forth in this
Sublease. Sublessor shall, however, upon the request of Sublessee from time to
time (which request may be oral), use due diligence and reasonable efforts to
cause Prime Lessor to furnish such services, expend such sums, and observe and
perform such obligations. Sublessor's only obligations under the Prime Lease
with respect to the Premises are to use the aforesaid due diligence and
reasonable efforts, make those payments of all rent and other charges due to
Prime Lessor thereunder and to make those payments due to the utility providers
for utility services (including electricity, water and sewer) which are
separately metered to the Leased Premises, which payments Sublessor hereby
agrees to make, provided, however, that Sublessee makes timely payment to
Sublessor of all rent and other charges payable under this Sublease. Sublessor
hereby agrees that, so long as Sublessee makes timely payment to Sublessor of
all rent and other charges payable by Sublessee hereunder, Sublessor shall make
timely payment of all rent and other charges due to Prime Lessor as landlord
under the Sublease. It is the intention of the parties that Sublessee comply
with all of Sublessor's obligations as tenant under the Prime Lease (not
excluded under Section 2.2.2 above) with respect to the Premises to the same
extent and with the same force and effect as if Sublessee were tenant
thereunder, and Sublessee hereby agrees to so comply with all of Sublessor's
such obligations under the Prime Lease with respect td the Premises. Sublessee
shall have no claim against Sublessor for any default by the Prime Lessor under
Prime Lease. If as a result of any default by Prime Lessor as landlord under the
Prime Lease, Sublessor as tenant under the Prime Lease is entitled to any
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offset or similar rights against Prime Lessor, Sublessee shall be entitled to a
fair and equitable share of such offset or similar rights. So long as Sublessee
is not in default under this Sublease beyond any applicable notice, grace or
cure period, Sublessee shall have the right, subject to the prior written
consent of Sublessor, which consent shall not be unreasonably withheld and shall
be given or withheld by Sublessor five (5) business days after receipt of the
request therefor, to maintain, in the name of Sublessor but at Sublessee's sole
cost and expense, an action or actions to compel Prime Lessor to discharge the
responsibilities of Prime Lessor under the Prime Lease. Sublessor shall not
unreasonably withhold its consent to the bringing of any such action or actions
by Sublessee, provided, in each instance, that Sublessee shall not xxx if
Sublessor has itself commenced an action or actions for the same purpose; and
provided, further, that Sublessor may withhold its consent if, in Sublessor's
judgment, such action would result in an increase in rent, additional rent, or
any other sums whatsoever payable by Sublessor to Prime Lessor under the Prime
Lease. In any event, Sublessee agrees to indemnify Sublessor and hold Sublessor
harmless from and against all loss, cost, damage, expense, or liability
(including, without limitation, attorney's fees and disbursements) which
Sublessor may incur by reason of any action brought by Sublessee against Prime
Lessor. No default by Prime Lessor under the Prime Lease shall excuse Sublessee
from the performance of any of its obligations to be performed under this
Sublease or to any reduction in or abatement of any of the rent provided for in
this Sublease, unless and only to the extent that Sublessor shall be excused
from the performance of a corresponding obligation as the "tenant" under the
Prime Lease.
2.2.5 Sublessee shall neither do, nor permit to do nor permit to be
done, anything that would increase Sublessor's obligations to the Prime Lessor
under the Prime Lease (unless Sublessee shall indemnify Sublessor from such
increased obligation) or that would cause the Prime Lease to be terminated or
forfeited. Sublessor shall not amend or modify (nor agree to amend or modify)
the Prime Lease in any way that would increase Sublessee's obligations or
diminish Sublessee's rights under this Lease, nor shall Sublessor do, nor permit
to do or be done, anything that would cause the Prime Lease to be cancelled,
terminated or forfeited.
2.2.6 Sublessor shall promptly give Sublessee a copy of any notice
of default, termination or otherwise affecting the existence or validity of the
Sublease or relating to any casualty or taking, given by Sublessor or Prime
Lessor to the other.
Article III
TERM OF SUBLEASE
3.1 TERM
The Sublease Term of this Sublease shall be for the period specified in
Section 1.1 as the Sublease Term, unless earlier terminated as provided herein.
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Article IV
CONDITION OF PREMISES
4.1 CONDITION OF PREMISES
Sublessee acknowledges that it has accepted the Premises "as is", in the
order and condition as the Premises are in on the date hereof, and agrees that
Sublessor is under no Obligation to perform any work upon or alteration to the
Premises for Sublessee's use and occupancy.
4.2 FIXTURES AND EQUIPMENT
Sublessee shall be entitled to use all built-in fixtures and equipment
physically located in the Premises as of the Commencement Date. Such fixtures
and equipment shall include four fume hoods, one glass washer and two
autoclaves; Sublessor represents and warrants that, to its best knowledge and
belief, all such fixtures and equipment are in good working order and repair
(except for one autoclave that is not in good working order, as previously
disclosed to Sublessee). Sublessee shall, at its expense, maintain and repair
such fixtures and equipment in good order, repair and condition and shall
surrender all such fixtures and equipment to Sublessor in such condition at the
end of the term.
Article V
USE
5.1 PERMITTED USE
Sublessee agrees that the Premises shall be used and occupied for the
Permitted Uses specified in Section 1.1 only. During the Sublease Term,
Sublessee shall assume and maintain exclusive control of the Premises. Sublessee
acknowledges and understands that it shall be responsible, at its expense, for
providing any janitorial, cleaning, equipment and fixture maintenance and
security services necessary for Sublessee' s use and occupancy of the Premises.
Sublessee shall have access to the Premises and the appurtenant common areas of
the Building 24 hours per day, seven days per week, subject to such "after
hours" security systems, rules and regulations as Prime Lessor may from time to
time impose.
5.2 ASSIGNMENT AND SUBLETTING
Sublessee shall not, by operation of law or otherwise, assign, mortgage,
pledge, encumber or in any manner transfer this Sublease, or any part thereof or
any interest of Sublessee hereunder, or sublet or permit the Premises or any
part thereof to be used or occupied by others, without the prior consent of both
Sublessor and Prime Lessor. Sublessor agrees that it shall not unreasonably
withhold or delay its consent to any assignment or further sublease to which
Prime Lessor may consent. Notwithstanding any such consent, Sublessee shall
remain liable to Sublessor for the payment of all rent and for the performance
of the covenants and conditions of this Sublease (which liability, following any
assignment, shall be joint and several with the assignee).
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Article VI
RENT
6.1 BASE RENT; ADDITIONAL RENT
(a) The Base Rent and Additional Rent specified in Section 1.1
hereof (collectively, the "Rent"), and any additional rent or other charges
payable pursuant to this Sublease shall be payable by Sublessee to Sublessor at
Sublessor's mailing address (or such other place as Sublessor may from time to
time designate by notice to Sublessee).
(b) Rent shall be payable, in advance, on or before the twenty-fifth
(25th) day of each and every calendar month during the term of this Sublease.
Sublessor shall promptly deliver to Sublessee (i) a copy of the year end
statement of operating expenses that Sublessor receives from Prime Lessor as
provided in Section 5.3 of the Prime Lease, and (ii) a copy of each tax xxxx
received by Sublessor from Prime Lessor as provided in Section 5.4.3 of the
Prime Lease. Promptly after Sublessor and Prime Lessor have made the appropriate
adjustments between themselves on account of such actual operating expenses and
real estate taxes, the amounts paid by Sublessee as Sublessee's Share of such
estimated installments shall be adjusted between Sublessor and Sublessee. The
parties obligations hereunder to make such adjustments shall survive the
expiration or termination of this Sublease.
(c) Rent for any partial month shall be paid by Sublessee to
Sublessor at such rate on a prorata basis. Other charges payable by Sublessee on
a monthly basis, as hereinafter provided, shall likewise be prorated.
All Rent and other amounts due under this Sublease shall be made without
demand, offset or deduction. Sublessee shall be entitled to a fair and equitable
share of all rent abatements set forth in the Prime Lease which Sublessor has
been granted with respect to the Premises.
6.2 LATE PAYMENTS; ADDITIONAL RENT
If any installment of Rents, additional rent or other charges is not paid
on or before the date such payment is due and payable, and if as a result
Sublessor is obligated to pay to Prime Lessor the late charge specified in
Section 1 6(A)(d) of the Prime Lease, then Sublessee shall pay to Sublessor a
late charge of five percent (5%) of the amount of such payment. In addition, if
Sublessee shall fail to make any such payment within thirty (30) days after the
due date, such payment shall bear interest at the rate per annum which is two
percent (2%) higher than the "prime rate" then being charged by The First
National Bank of Boston from the date such payment became due to the date of
payment thereof by Sublessee; provided, however, that nothing contained herein
shall be construed as permitting Sublessor to charge or receive interest in
excess of the maximum legal rate than allowed by law. Such late charge and
interest shall constitute additional rent due and payable hereunder with the
next installment of Base Rent due hereunder.
6.3 EXCESS UTILITY COSTS
If Sublessor, in its reasonable judgment, determines that Sublessee is
using excessive quantities of HVAC, electricity or water (for purposes of this
Sublease, "excessive quantities" shall mean quantities more than 10% higher than
the quantities being consumed by Sublessor [calculated on a per square foot
basis] in those portions of the Leased Premises used by Sublessor for purposes
comparable to Sublessee's use of the Premises), then in addition to paying
Sublessee's Share of utilities, Sublessee shall also, upon receipt of a written
invoice therefor, reimburse Sublessor for the cost of any such excess.
Article VII
ALTERATIONS, FIXTURES AND EQUIPMENT
7.1 ALTERATIONS
Sublessee may not make any alterations, installations, and improvements to
the Premises without first obtaining the prior consent of both Sublessor and
Prime Lessor. Sublessor shall not be responsible for the failure or refusal of
Prime Lessor to consent to such improvements. Sublessor hereby agrees that it
shall not unreasonably withhold its consent to any alterations, additions or
improvements approved by Prime Lessor. Any such approved alterations, additions
or improvements shall be done at Sublessee's sole expense in a good and
workmanlike manner and in compliance with all applicable laws and codes and the
applicable requirements of the Prime Lease.
Article VIII
SUBLESSEE'S RISK
8.1 SUBLESSEE'S RISK
Sublessee agrees to use and occupy the Premises at Sublessee's own risk;
and to the fullest extent permitted by law, Sublessor shall have no
responsibility or liability for any loss of or damage to fixtures or other
personal property of Sublessee, or of those claiming by, through or under
Sublessee, including without limitation, any loss or damage from the breaking,
bursting, crossing, stopping or leaking of electric cables and wires, and water,
gas, sewer or steam pipes or like matters.
Article IX
SUBLESSOR'S ACCESS TO PREMISES
9.1 SUBLESSOR'S RIGHT OF ACCESS
If Sublessee fails to make any necessary repairs to the Premises within a
reasonable time after notice thereof from Sublessor, Sublessor shall have the
right to enter the Premises at all reasonable hours for the purpose of making
such repairs.
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Article X
INSURANCE
10.1 SUBLESSEE'S INSURANCE
Sublessee shall carry and maintain, throughout the term hereof, at its own
cost and expense, the insurance required under Section 9A of the Prime Lease;
such insurance shall name as additional insureds both Sublessor and Prime
Lessor.
Article XI
CASUALTY
11.1 CASUALTY AND RESTORATION; EMINENT DOMAIN
If the Premises, or any part thereof, shall be damaged or destroyed by
fire or other casualty or damage by eminent domain then Sublessee shall promptly
notify Prime Lessor and Sublessor. Under the Prime Lease the Prime Lessor is
obligated, as soon as possible thereafter, to repair or restore the Premises to
the extent and in the manner set forth in Sections 17 and 17A of the Prime
Lease, as the case may be. If Prime Lessor abates Sublessor's rent with respect
to the Premises as a result, then Rent and other charges hereunder shall be
similarly abated for so long as Sublessor is entitled to and receives an
abatement under the Prime Lease. If damage is of the type which entitles Prime
Lessor or Sublessor to terminate the Prime Lease and either such party so elects
to terminate the Prime Lease, then the Prime .Lease shall cease and come to an
end and this Sublease shall similarly terminate. In addition, if damage is of
the type which would entitle Sublessor to terminate the Prime Lease, Sublessee
shall have the right to exercise Sublessor's right of termination by giving both
Sublessor and Prime Lessor written notice of such termination within the
applicable notice period set forth in Sections 17 and 17A of the Prime Lease, as
the case may be. Sublessee acknowledges that Sublessor shall, in no event, have
any obligation whatsoever to rebuild or restore any damage to the Premises.
Article XII
MISCELLANEOUS PROVISIONS
12.1 WAIVER
Failure on the part of either party to complain of any action or
non-action on the part of the other, no matter how long the same may continue,
shall never be deemed to be a waiver by such party of any of its rights
hereunder. Further, it is agreed that no waiver of any of the provisions hereof
by either party shall be construed as a waiver of any of the other provisions
hereof and that a waiver at any time of any of the provisions hereof shall not
be construed as a waiver at any subsequent time of the same provisions. The
consent to or approval of any action by, either party requiring such consent or
approval shall not be deemed to waive or render unnecessary such consent to or
approval of any subsequent similar act by such party.
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12.2 COVENANT OF QUIET ENJOYMENT
Sublessee, subject to the terms and provisions of this Sublease, on
payment of the Rent and observing, keeping, and performing all of the terms and
provisions of this Sublease on Sublessee's part to be observed, kept, and
performed, shall lawfully, peaceably, and quietly have, hold, occupy, and enjoy
the Premises during the Sublease Term without hindrance or ejection by Sublessor
or by any person lawfully claiming under Sublessor, but subject to force
majeure; the foregoing covenant of quiet enjoyment is given in lieu of any other
covenant, whether express or implied.
12.3 INVALIDITY OF PARTICULAR PROVISIONS
If any term or provision of this Sublease, or the application thereof to
any person or circumstance, shall, to any extent, be invalid or unenforceable,
the remainder of this Sublease, or the application of such term or provision to
persons or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each term and provision of
this Sublease shall be valid and be enforced to the fullest extent permitted by
law.
12.4 BROKERS
Each party represents and warrants to the other that it has not directly
or indirectly dealt, with respect to the Premises and this Sublease with any
broker other than the Brokers identified in Section 1.1 (the "Brokers"). Each
party shall save harmless and indemnify the other party against any claims by
anyone with whom it has so dealt or by whom its attention was called to the
Premises, other than the Brokers, for a commission arising out of the execution
and delivery of this Sublease or out of negotiations between Sublessor and
Sublessee with respect to space in the Building. Sublessor agrees to pay the
Brokers the commission with respect to this Sublease set forth in a separate
agreement between Sublessor and the Brokers.
12.5 PROVISIONS BINDING, ETC.
Except as herein otherwise expressly provided, the terms hereof shall be
binding upon and shall inure to the benefit of the heirs, legal representatives,
successors and assigns, respectively, of Sublessor and Sublessee. Each term and
each provision of this Sublease to be performed by Sublessee shall be construed
to be both a covenant and a condition. The reference contained to the successors
and assigns of Sublessee is not intended to constitute a consent to assignment
by Sublessee, but has reference only to those instances in which Sublessor shall
have given its consent to a particular assignment if such consent is required by
the provisions of this Sublease. Each person executing this Sublease on behalf
of Sublessor warrants that Sublessor is a duly existing and valid Delaware
corporation qualified to do business in Massachusetts, that Sublessor has duly
executed and delivered this Sublease, that the execution and delivery of, and
the performance by Sublessor of its obligations under this Sublease are within
the powers of Sublessor and have been duly authorized by all requisite corporate
action, and that this Sublease is a valid and binding obligation of Sublessor in
accordance with its terms. Each of the persons executing this instrument on
behalf of the Sublessee hereby covenant and warrant that the Sublessee is a duly
existing and valid Delaware corporation qualified to do business in
Massachusetts, that Sublessee has duly executed and delivered this Sublease,
that the execution
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and delivery of, and the performance by Sublessee of its obligations under this
Sublease are within the powers of Sublessee and have been duly authorized by all
requisite corporate action, and that the Sublease is a valid and binding
obligation of Sublessee in accordance with its terms.
12.6 NO RECORDING
Sublessee agrees not to record this Sublease or any notice thereof.
12.7 NOTICES
Whenever by the terms of this Sublease notice, demand or other
communication shall or may be given, either to Sublessor or to Sublessee, the
same shall be adequately given if in writing and delivered by hand or sent by
registered or certified mail, postage prepaid:
If intended for Sublessor, addressed to it prior to the Commencement Date
at the mailing address set forth in Section 1.1, with a courtesy copy to
Sublessor's real estate attorneys Xxxxxx & Dodge LLP, Xxx Xxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: Xxxxxx X. Xxxxxxx, Esq. (or to
such other address or addresses as may from time to time hereafter be
designated by Sublessor by like notice).
If intended for Sublessee, addressed to it the address set forth in
Section 1.1, and after the Commencement Date addressed to it at the
Premises to the attention of the Senior Vice President for Finance and
Administration and Chief Financial Officer (to such other address or
addresses as may from time to time hereafter be designated by Sublessee
by, like notice).
All such notices shall be effective upon receipt or refusal to receive.
12.8 PRIME LESSOR CONSENT
This Sublease shall not be effective until and unless Prime Lessor has
given its consent hereto; Sublessor shall be responsible for paying all costs
and expenses payable to Prime Lessor under the Prime Lease in connection with
obtaining such consent. Sublessor shall not be responsible for the failure or
refusal of Prime Lessor to consent to this Sublease.
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EXECUTED UNDER SEAL, in any number of counterpart copies, each of which
counterpart copies shall be an original for all purposes, as of the day and year
first above written.
Sublessor: MITOTIX INC.
By /s/ Xxxxx Xxxxxxxx
----------------------------------
Its
hereunto duly authorizes
Sublessee: DYAX CORP.
By /s/ Xxxxx X. Xxxxxxx
----------------------------------
Its
hereunto duly authorizes
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