For execution
SHORT FORM
LEASE
TRUSTEES OF THE CAMBRIDGE EAST TRUST
TO
EPIX MEDICAL, INC.
AT
63 ▇▇▇▇, ▇▇ ▇▇▇▇, ▇▇, ▇▇ and ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
Table of Contents
Section Page
1. REFERENCE DATA 4
SIGNATURES 6
CLERK'S CERTIFICATE 7
LIST OF EXHIBITS 7
2. PREMISES 8
2.1 Premises 8
2.2 Deleted 8
2.3 Appurtenant Rights 8
2.4 Landlord's Reservations 8
3. COMMENCEMENT AND TERM OF LEASE 9
3.1 Condition and Delivery of Premises 8
3.2 Habendum 8
3.3 Entry Prior to Commencement Date 8
3.4 Termination Right 8
3.5 Right of First Offer 10
4. PREPARATION OF PREMISES 12
4.1 Tenant's Work 12
5. USE OF PREMISES 13
5.1 Permitted Uses 13
5.2 Prohibited Uses 13
5.3 Licenses and Permits 13
5.4 Signs 13
6. RENT 14
6.1 Annual Fixed Rent 14
6.2 Additional Rent; Taxes and Operating Expenses 15
6.2.1 Billing of Taxes and Operating Expenses 16
6.2.2 Definition of Operating Expenses 17
6.2.3 Certain Excluded Charges 18
6.3 Late Charges 19
6.4 Security Deposit 19
7. ALLOCATION OF BUILDING SERVICES 21
7.1 Landlord's Duties 21
7.2 Tenant's Duties 21
7.3 Tenant to Pay for All Utilities 21
7.4 Deleted 21
7.4.1 Repairs for Account of Tenant 21
7.5 Curtailed Services 22
7.6 Payment for Tenant's Work 22
8. TENANT'S ADDITIONAL COVENANTS 23
8.1 Compliance with Law, Including Hazardous
Substances 23
8.2 Indemnity 26
8.3 Tenant's Property is Tenant's Risk 26
8.4 Estoppel Certificate 26
8.5 Overloading, Nuisance, Restrictions on
Research Activities; Volatile or Dangerous
Substances 27
8.6 Yield Up 27
8.6.1 What are Intended to be Fixtures 27
8.7 Alterations and Improvements by Tenant
After Term Commencement 28
8.8 Floor Load; Heavy Machinery 28
8.8 Assignment and Subletting 28
8.10 Landlord's Access to Premises 30
8.11 Construction Activity 30
8.l2 Tenant's Financial Statements 30
9. INSURANCE 32
9.1 Public Liability Insurance 32
9.2 Casualty Insurance 32
9.3 Certificates of Insurance 32
9.4 Landlord's Insurance 32
9.5 Waiver of Subrogation 33
9.6 Increase in Insurance Risk 33
10. DAMAGE TO PREMISES AND CONSEQUENCES OF
EMINENT DOMAIN 34
10.1 Repair and Restoration of Casualty Loss 34
10.2 Abatement of Rent 34
10.3 Termination for Major Damage or If Damaged
at End of Term 34
10.4 Eminent Domain 35
11. DEFAULT AND REMEDIES 37
11.1 Events of Default 37
11.2 Deleted 37
11.3 Damages - Termination 37
11.4 Effect of Tax and Operating Payments
on Damages 38
11.5 Landlord's Expense in Performing
Obligations of Tenant 39
11.6 Landlord's Remedies Not Exclusive 39
11.7 Landlord's Default 39
11.8 Effect of Waivers of Default 39
11.9 Repeated Defaults 39
11.10 No Accord and Satisfaction 40
12. SUBORDINATION 41
12.1 Subordination 41
13. HOLDING OVER 42
13.1 Holding Over 42
14. MISCELLANEOUS PROVISIONS 43
14.1 Notices 43
14.2 Quiet Enjoyment 43
14.3 Limitation of Landlord's Liability 43
14.4 Acts of God 43
14.5 Applicable Law and Construction 43
14.6 Arbitration 44
14.7 Timely Performance 44
14.8 No Broker 44
14.9 Financing Requirements 44
14.10 Agreement Made Only When Lease Signed 44
14.11 Demolition 44
14.12 Relocation 44
14.13 No Parking 45
EXHIBITS 46
LEASE
1. REFERENCE DATA
Each reference in this Lease to the following subjects shall be
construed to incorporate the data for that subject stated in this Section 1.
DATE: As of *date*
LANDLORD: ▇▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇, Trustees of The Cambridge
East Trust, under declaration of trust dated June 1, 1983
recorded with the South Middlesex Registry of Deeds, Book
15067, Page 392 and registered with the South Middlesex
Registry District of the Land Court as Document 641740 noted
on Certificate of Title 168090, Book 970, Page 140, as
Trustees and not individually
ORIGINAL ADDRESS
OF LANDLORD: c/▇ ▇▇▇▇ and Company, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
TENANT: EPIX Medical, Inc., a Delaware corporation
ORIGINAL ADDRESS
OF TENANT: ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
PREMISES: The following premises shown on Exhibit 1:
approximately 2,660 square feet located in the 6,640 square
foot building known as and numbered ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
approximately 4,390 square feet located in the 5,360 square
foot building known as and numbered ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
approximately 2,500 square feet located in the 2,500 square
foot building known as and numbered ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
approximately 2,500 square feet located in the 2,500 square
foot building known as and numbered ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
approximately 5,000 square feet located in the 5,000 square
foot building known as and numbered ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
all in Cambridge, Massachusetts (collectively, the Building or
Buildings)
FIRST OFFER PREMISES: The following premises shown on Exhibit 1-A:
approximately 3,980 square feet located in the 6,640 square
foot building known as and numbered ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, and
approximately 971 square feet located in the 6,640 square foot
building known as and numbered ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
approximately 5,900 square feet located in the 5,900 square
foot building known as and numbered ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
also in Cambridge, Massachusetts. If added to the Premises,
these premises also will, with the other Premises, be referred
to collectively as the Building. See Section 3.4 for exercise
rights to lease the First Offer Premises. See Section 6.1 for
Annual Fixed Rent on the First Offer Premises.
TERM: Five years
COMMENCEMENT DATE: January 1, 1998
TERMINATION DATE: December 31, 2002
ANNUAL FIXED RENT:
January 1, 1998 - December 31, 1998 $258,700.00
January 1, 1999 - December 31, 1999 $275,750.00
January 1, 2000 - December 31, 2000 $292,800.00
January 1, 2001 - December 31, 2001 $309,850.00
January 1, 2002 - December 31, 2002 $326,900.00
MONTHLY PAYMENT:
January 1, 1998 - December 31, 1998 $ 21,558.33
January 1, 1999 - December 31, 1999 $ 22,979.17
January 1, 2000 - December 31, 2000 $ 24,400.00
January 1, 2001 - December 31, 2001 $ 25,820.83
January 1, 2002 - December 31, 2002 $ 27,241.67
TENANT'S PERCENTAGE OF
OPERATING EXPENSES: ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ 40.06%
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ 81.90%
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ 100%
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ 100%
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ 100%
and if the First Offer Premises
are added to the Lease:
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ 100%
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ 100%
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ 100%
PERMITTED USES: General Office use and technical office for research development
laboratory or research facility use, and manufacture, processing, assembly and
packaging of drug, all to the extent permitted by applicable law and no other
use
SECURITY DEPOSIT: None
BROKER: The ▇▇▇▇ Companies
SIGNATURES
LANDLORD: TENANT:
▇▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇▇▇ ▇.
▇▇▇▇, Trustees as aforesaid
and not individually
By: ▇▇▇▇ and Company, Inc., EPIX Medical, Inc.
Managing Agent
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------ -----------------------------------
▇▇▇▇▇▇ ▇▇▇▇ its ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ its President & CEO
hereunto duly authorized hereunto duly authorized
CLERK'S CERTIFICATE
The undersigned hereby certifies (1) that s/he is the duly elected Clerk of
the corporation executing this Lease as Tenant, (2) that the Tenant's Board of
Directors has duly decided as required by law and the Tenant's governing
documents that the Tenant shall enter into this Lease and has duly empowered the
person who executed this Lease to do so in the name of and on behalf of the
Tenant, and (3) that the Tenant's execution and performance of this Lease is
consistent with and does not contravene or violate the law and governing
documents under which Tenant is organized and operated.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Clerk
LIST OF EXHIBITS
Exhibit 1 - Floor Plan of Premises
Exhibit 2 - Landlord's Work
Exhibit 3 - Tenant's Work
Exhibit 4 - Clean-up Requirements
2. PREMISES
2.1 Premises. The Premises are that portion of the Building shown on the Floor
Plan (Exhibit 1) attached hereto and comprise the entire Building as to the
following portions of the Premises: ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇.
2.2 Deleted.
2.3 Appurtenant Rights. Subject to Landlord's rules, Tenant shall have, as
appurtenant to the Premises, rights to use in common with others entitled
thereto: (a) the common lobbies and hallways, if any, of the Building; and (b)
any common toilets and other common facilities, if any.
Tenant has exclusive rights to use the entire Building(s) at 69, 71 and
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇. Landlord retains to right to permit restroom use within such
Building(s) as necessary or convenient in the event this Lease is terminated for
any reason as to some but not all of such portion of the Premises.
2.4 Landlord's Reservations. Landlord reserves (a) access to the Premises for
inspection and repair on prior notice reasonable under the circumstances and
during Tenant's business hours; and (b) any space in the Premises used for
shafts, stacks, pipes, conducts, wires and appurtenant fixtures, ducts,
electrical wiring, sinks or other facilities which serve the Building. Access
and repair shall be done in a manner designed to reasonably minimize
interference with Tenant's use of the Premises. Landlord reserves the right to
alter existing patterns of vehicular traffic flow in the vicinity of the
Building including, without limitation, reduction or elimination of vehicular
flow (other than delivery and other service vehicles) on ▇▇▇▇▇▇ Street.
3. COMMENCEMENT AND TERM OF LEASE
3.1 Condition and Delivery of Premises. The Premises are leased to Tenant in
their existing condition without warranty or representations except as stated in
this Lease. Landlord shall deliver possession on the Commencement Date. If
Landlord is unable to do so because a prior tenant or occupant retains
possession, Landlord shall incur no liability thereto nor shall such failure
affect the validity of this Lease except that Annual Fixed Rent and all other
amounts due from Tenant shall be abated pro rata as to the area not delivered
until possession of the occupied space is delivered to Tenant.
Tenant acknowledges that at the time of execution of this Lease Tenant
is in full possession.
3.2 Habendum. To have and to hold the Premises for the Term commencing on the
Commencement Date and ending on the Termination Date or such earlier date upon
which said term may expire or be terminated pursuant to this Lease or pursuant
to law (collectively the "Termination Date").
3.4 Termination Right In the event this Lease is in full force and effect
without notice of default to Tenant or, if such notice of default has been
given, Tenant is acting promptly and diligently to cure the same and applicable
grace periods, if any, have not expired, and the original Tenant holds the
entire Tenant's interest hereunder, the original Tenant shall have the right to
terminate this Lease as to all Premises effective December 31, 1999 (the
"Termination Right"). Tenant shall exercise this Termination Right, if at all,
only by written notice to Landlord given not sooner than January 1, 1999 nor
later than June 1, 1999 stating Tenant's election to terminate this Lease
effective December 31, 1999 and accompanied by payment in good funds of a
termination fee of $125,000.00. If (but only if) so exercised, this Lease shall
thereupon terminate on December 31, 1999 with the same force and effect as if
that had been the originally agreed Termination Date. Following exercise of the
Termination Right, Tenant shall no longer have any Rights of First Refusal, and
any Rights of First Refusal previously exercised which have not been (or are not
to be) added to the Premises with the Term for such Premises begun on or before
January 1, 1999 shall be void and of no further force or effect. Rights of First
Refusal previously exercised as to Premises which have been added to the
Premises, with the Term begun, prior to January 1, 1999 shall not be affected by
Tenant's exercise of the Termination Right.
3.5 Right of First Offer In the event this Lease is in full force and effect
without notice of default to Tenant or, if such notice of default has been
given, Tenant is acting promptly and diligently to cure the same and applicable
grace periods, if any, have not expired, and the original Tenant holds the
entire Tenant's interest hereunder and is in occupancy of not less than 70% of
the Premises and engaged in the active conduct of its business, the original
Tenant shall have a "right of first offer" to lease all the remaining space at
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, and also all the remaining space at ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, both in Cambridge, Massachusetts shown on Exhibit 1-A attached
hereto (the "First Offer Premises") in their then existing condition, with no
obligation in Landlord with regard to altering or improving the condition
thereof, for an Annual Fixed Rent determined as stated in Section 6.1 for a term
ending on the Termination Date and otherwise on all the terms and conditions of
this Lease. Tenant may exercise the right of first offer (i) as to ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ and ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ together, (ii) as to ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ only or (iii)
as to all the First Offer Premises, but only on the same, single occasions, and
shall exercise the right of first offer, if at all, only as follows.
The First Offer Premises at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ are
presently occupied by Immunetics, Inc. and the First Offer Premises at ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ are presently occupied by Therion Biologics Corporation, each under
lease. If, during the Term of this Lease, the First Offer Premises are to (or
have) become available for Tenant's use, Landlord shall so notify Tenant. Such
notice shall state the date on which the First Offer Premises in question would
be added to Tenant's leased premises under this Lease (or, if that date is
uncertain, may state the earliest date such First Offer Premises could be added
to Tenant's leased premises under this Lease) and shall be given not sooner than
)ninety (90) days before such date (or, if given sooner, shall not be effective
until that date). Tenant shall have the right to lease the First Offer Premises
in question on the terms and conditions stated above if (but only if) (1) Tenant
gives Landlord written notice of its intention to do so within) thirty (30)
business days of receipt (or the effective date, if later) of Landlord's notice
of availability and also (2) executes and delivers to Landlord, within thirty
(30) business days of receipt thereof, the amendment adding the First Offer
Premises to this Lease on the terms and conditions stated above, and Tenant's
failure to do either of these acts within the time stated (time being of the
essence as stated in Section 14.7) shall terminate Tenant's right to lease the
First Offer Premises described in such notice hereunder.
The First Offer Premises are presently occupied and Tenant acknowledges
that it is in Landlord's economic interest to prefer an existing tenant to all
other occupants. Landlord and Tenant agree to balance this interest with
Tenant's economic interest in having the right of first offer as follows.
Landlord shall not be obligated to offer the First Offer Premises to Tenant (1)
so long as either Immunetics, Inc. or Therion Biologics Corporation or any
person claiming by, through or under either as the Tenant and having become the
Tenant with Landlord's consent (hereafter referred to, with respect to the space
each occupies, as the "Present Tenant") wishes to continue to occupy their
respective First Offer Premises, whether under the present lease, any extension
or renewal thereof, a new lease or otherwise. Accordingly, Tenant acknowledges
that Tenant's right of first offer (1) in no way
limits Landlord's right to negotiate and grant the Present Tenant, further
rights of occupancy (under lease or otherwise) in premises which include the
First Offer Premises. Tenant shall have the right to inspect the First Offer
Premises on reasonable notice at any reasonable time and from time to time after
Landlord's notice of its availability.
4. PREPARATION OF PREMISES
4.1 Tenant's Work. Landlord hereby consents to, and Tenant agrees to perform at
its sole expense, the work described in Exhibit 3. Tenant shall perform no work
in the Premises not shown on plans approved in writing by Landlord. Tenant shall
secure Landlord's prior written approval (not to be unreasonably withheld or
delayed) of the contractor(s) to do Tenant's work. All persons working in the
Premises in connection with Tenant's improvements shall be covered by ▇▇▇▇▇▇▇'▇
compensation. Tenant shall indemnify and save harmless Landlord from all costs,
expenses, damages or losses sustained or claimed against Landlord arising out of
work done by Tenant or by Landlord on Tenant's account in the Premises,
including without implied limitation attorneys' fees, and on Landlord's written
request shall provide a copy of Tenant's contractor's payment bond, or, at
Tenant's option, other evidence of the contractor's financial integrity
satisfactory to Landlord. Tenant shall promptly cause to be removed, by ▇▇▇▇
▇▇▇▇ if necessary, any liens or notices or other claims of lien against the
Premises arising out of Tenant's work. Any special approvals for occupancy of
the Premises, municipal or otherwise, necessitated by the nature of Tenant's
business or the like shall be Tenant's sole responsibility.
5. USE OF PREMISES
5.1 Permitted Use. Tenant shall occupy the Premises continuously during the Term
and shall use the Premises only for the purposes as set forth in Section 1 and
for no other purposes, and as to purpose(s) with area limitations stated in
Section 1, to no greater extent as to such purpose(s) than so stated. Tenant
agrees always to use the Premises in accordance with the requirements of the
Cambridge Zoning Code and other applicable law, and that Landlord has made no
warranties or representations, expressed or implied, with regard thereto.
5.2 Prohibited Uses. Without limiting the generality of Section 5.1, Tenant
shall not use any part of the Premises (a) in any manner which would violate
this Lease, (b) for any unlawful purpose, (c) in any manner which in Landlord's
judgment impairs the appearance or reputation of the Building or (d) in any
manner which impairs or interferes with Building services or the economic
heating of the Building or Premises, or with use of other areas of the Building,
or which interferes with other tenants or occupants of the Building. Tenant may
not install coffee makers, refrigerators, cooking equipment or other
food-related equipment in the Premises without Landlord's prior written consent,
which consent shall not be unreasonably withheld as to equipment designed for
Tenant's employees which requires no permits and no construction or special
venting.
All volatile, dangerous or harmful substances shall at all times be
stored in a secure area in a safe manner and always in compliance with
applicable law and government and insurance requirements and guidelines.
5.3 Licenses and Permits. Tenant shall obtain at its expense all licenses or
permits required for the lawful conduct of Tenant's business.
5.4 Signs. Tenant shall not place any new signs on the exterior of the Building,
in any window or in any common or public area without Landlord's prior written
consent, which consent shall not be unreasonably withheld to one additional sign
for each entry satisfactory in design and size to Landlord. Tenant's signs shall
comply with applicable law.
6. RENT
6.1 Annual Fixed Rent. Tenant covenants and agrees to pay to Landlord at the
Original Address of Landlord, or such other place as Landlord may by written
notice to Tenant direct, Annual Fixed Rent stated in Section 1 in equal monthly
installments on the first day of each month during the Term and pro rata for any
partial month. The first payment shall be made on execution of this Lease and
shall be for the first full month for which full rent is due plus any preceding
partial month.
Tenant may (but is not obligated to) send Landlord a notice prior to
exercise of the Tenant's right of first offer to include the First Offer
Premises (or either of them) in the Premises inquiring as to the Annual Fixed
Rent Landlord would be willing to accept for such Premises (the "Rent Inquiry
Notice"). Within thirty (30) days of receipt of the Rent Inquiry Notice (or by
February 15, 1999 if later) Landlord shall inform Tenant in writing of such
Annual Fixed Rent ("Landlord's Offered Annual Fixed Rent"). If Tenant states in
Tenant's notice adding the First Offer Premises (or either of them) to the
Premises that Tenant accepts Landlord's Offered Annual Fixed Rent, then that
shall be the Annual Fixed Rent as to the First Offer Premises in question.
If Annual Fixed Rent for the First Offer Premises has not been
established in accordance with the preceding paragraph, then Annual Fixed Rent
for the First Offer Premises (or either of them) shall be established by
agreement between Landlord and Tenant and shall be based on ninety percent (90%)
of the fair market rent for the First Offer Premises (exclusive of Real Estate
Taxes and Operating Expenses) on or about the date the First Offer Premises in
question will be added to the Premises (but in no event shall the rate per
square foot of Annual Fixed Rent for the First Offer Premises at ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ be less than the rate per square foot used to determine Annual Fixed Rent
for the portion of the initial Premises at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
and ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, which was $16 per square foot for the first twelve months
increasing by $1 per square foot each twelve months thereafter, nor shall the
rate per square foot of Annual Fixed Rent for the First Offer Premises at ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ be less than the rate per square foot used to
determine Annual Fixed Rent for the other portions of the initial Premises,
which was $14 per square foot for the first twelve months increasing by $1 per
square foot each twelve months thereafter (except, as to ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, that if the same are hereafter improved prior to exercise of the
First Offer, then such rate shall be $16 per square foot for the first twelve
months increasing by $1 per square foot each twelve months thereafter). Fair
market rent shall be the highest Annual Fixed Rent (or schedule or formula of
varying rents) which willing tenants would pay to lease such area for the term
in question in a competitive and open market under terms and conditions
substantially the same as those of this Lease with such area considered free and
clear of this Lease and as though then available for occupancy for any legal use
in their then condition. Rent historically paid under this Lease shall be
disregarded in determining fair market rent.
If Landlord and Tenant have not agreed on such fair market rent in
writing within sixty (60) days following Tenant's exercise of its rights to rent
the First Offer Premises, the fair market rent shall be determined by
appraisers, one to be chosen by Landlord, one to be chosen by Tenant and a third
to be selected by the two first chosen if the first two cannot agree; or, at
Landlord's option, by a member of the American Society of Real Estate
Counsellors experienced in first class urban office buildings.
Landlord and Tenant shall each notify the other of its chosen appraiser
within thirty (30) days after the end of the period during which Landlord and
Tenant were to agree on Annual Fixed Rent as to the First Offer Premises and,
unless those two appraisers shall have reached a unanimous decision within
forty-five (45) days from the end of that thirty (30) day period, they shall
within the following fifteen (l5) days select a third appraiser, notify Landlord
and Tenant thereof and proceed forthwith to decision. If Landlord elects to have
the determination made by a member of the American Society of Real Estate
Counsellors, Landlord shall notify Tenant within thirty (30) days after the
commencement of such year of the name of the Counsellor chosen, and neither
party shall have any further obligation to select appraisers. If Tenant notifies
Landlord within thirty (30) days of the date of Landlord's notice that Tenant
wants two (2) or, if necessary three (3), such Counsellors to act, and includes
in that notice the name of a second Counsellor, then Landlord shall so inform
the original Counsellor, and those two Counsellors shall proceed in the manner
and on the schedule specified herein for appraisers, including selecting a third
Counsellor failing agreement of the two. Landlord and Tenant shall each bear the
expense of the appraiser/Counsellor chosen by it and shall bear equally the
expense of the third appraiser/ Counsellor (if any) or of the sole Counsellor if
he or she acts alone. The written decision of the sole Counsellor, the unanimous
written decision of the two first appraisers/Counsellors chosen, without
selection and participation of a third, or, if they do not agree, the written
decision of a majority of the three appraisers/Counsellors, as the case may be,
shall be conclusive and binding upon Landlord and Tenant.
Until Annual Fixed Rent for the First Offer Premises in question is
determined, Tenant shall make payments of Annual Fixed Rent at the annual rate
of $16 per square foot subject to retroactive adjustment, without interest, in
conformity with and within thirty (30) days of the determination of Annual Fixed
Rent as set forth in this Section.
6.2 Additional Rent; Taxes and Operating Expenses. Tenant agrees to pay as
additional rent for any period or portion thereof included within the Term and
in the manner stated in Section 6.2.1 (a) Tenant's Share (defined below) of Real
Estate Taxes (defined below) and (b) Tenant's Percentage (defined in Section 1)
of Operating Expenses as defined in Section 6.2.2. Tenant shall pay all
increased taxes attributable to any improvement or alteration in the Premises
for the exclusive benefit of Tenant.
"Tenant's Share" shall mean (i) that percentage of Real Estate Taxes
allocated to land value by the City of Cambridge assessors which the square
footage of the Premises bears to the total square footage of all buildings
included within the same tax ▇▇▇▇ as the Premises on January 1st in each year
and (ii) the applicable tax rate (a) applied to the
assessment of the Premises most recently determined by the City of Cambridge
Assessors, and (b) if the Assessor's valuations are not available, then applied
to the Premises' share of the value attributed to all buildings within such tax
▇▇▇▇ allocated by Landlord among the Premises and such other building(s) in
Landlord's sole good faith judgment. The term "Real Estate Taxes" and "taxes"
shall mean all taxes, assessments, betterments, use fees and charges, sewer
entrance fees and all other public charges, (including so called "linkage
payments" required to be paid by Landlord) levied, assessed or imposed at any
time by any governmental authority or agreed or governmentally imposed "in lieu
of" or similar charges, upon or against the land and Building(s) described in
Section 1 and all other properties of Landlord included in the same tax ▇▇▇▇,
and the land used for parking by Landlord's tenants of Landlord's several
properties in the proximity of the Building (but Tenant's Share shall not
include Real Estate Taxes to the extent Real Estate Taxes for such land used for
parking are included within the parking fees charged by Landlord for such
parking), or, in the case of assessment, betterment, or other charges to improve
services, facilities or other amenities in the vicinity of Landlord's said
properties, voluntarily accepted by Landlord .
Landlord represents that the present tax ▇▇▇▇ for the Premises includes
the buildings at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 71 ▇▇▇▇▇▇ Street, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, and ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇.
▇▇▇▇ ▇▇▇▇▇▇ Taxes shall not include taxes, assessments etc. on
additional rental space constructed by Landlord unless there is a corresponding
reduction in Tenant's Share.
6.2.1 Billing of Taxes and Operating Expenses.
(a) Landlord will send Tenant a copy of the tax ▇▇▇▇(s) and a statement
for Tenant's portion thereof, and Tenant will pay Tenant's Share to Landlord
within 10 days. Landlord reserves the sole right to bring proceedings for
abatement of taxes and Tenant assigns Landlord all rights Tenant may now or
hereafter have with respect thereto, whether arising under statute or by any
other means. If Landlord receives a refund of taxes (whether as a result of
abatement or otherwise) allocable to any period for which Tenant has paid its
Share of Taxes, Landlord shall refund, or credit, Tenant, in Landlord's
discretion, Tenant's Share of the refunded amount (net of all costs and expenses
of obtaining the refund).
At Landlord's election or if any mortgagee requires, Tenant shall pay
1/12th of Tenant's obligations for real estate taxes on the first day of each
month based on taxes for the prior tax year so that Landlord shall have received
sufficient monthly payments at least 15 days before each payment is due the
taxing authority to make full payment of such taxes when they are due, which
funds Landlord may hold in co-mingled accounts and without interest to Tenant.
If Tenant is late in any tax payment, Tenant shall pay Landlord any interest
required of Landlord by the taxing authority, or if Landlord advances the Taxes,
Tenant shall pay Landlord interest as stated in Section 6.3.
If during the Term, under the laws of the United States, Massachusetts,
Middlesex County or Cambridge, or other governmental entity having jurisdiction,
there
shall be adopted some other method of taxation upon or relating to the economic
productivity of real estate in addition, substitution or modification in whole
or in part for taxes on real estate as now levied in Massachusetts including, by
way of illustration and not limitation, taxes on rent and increased or new fees
for municipal services, Tenant will pay such substitute or modified taxes and
fees as soon as the same shall become due and payable. If the parties cannot
agree whether such taxes or fees are in fact in addition, substitution or
modification in whole or in part for taxes and fees on real estate, as now
levied, or on the extent to which the Tenant should bear the cost of such taxes
and fees, the matter shall be submitted to arbitration by the parties in
accordance with the provisions of Section 14.6. Notwithstanding such submission,
Tenant agrees to pay Landlord such taxes and fees when and in the amount
demanded by Landlord, with refund to the Tenant, without interest, of any amount
determined by said arbitrators to be in excess of Tenant's obligations under
this Section 6.2.3. It is the parties' intent that Landlord's net return of
Annual Fixed Rent shall not be reduced by changes in the methods or structure of
taxing the economic productivity of real estate and this clause shall be
interpreted to effect that result.
(b) Tenant shall incur in its own name and pay for all Operating
Expenses within the scope of its duties stated in Section 7. As to any Operating
Expenses which Landlord incurs pursuant to its duties under Section 7, Tenant
shall pay such Operating Expenses as follows. Tenant shall pay Landlord on the
first day of each month a monthly payment representing 1/12th of the annualized
Operating Expenses based on Landlord's most recent fiscal period. Landlord shall
furnish to Tenant, at such interval as Landlord shall from time to time
determine a statement of Operating Expenses sustained by Landlord during each
fiscal period, all or part of which falls within the Term, together with a
computation of Tenant's Percentage thereof and Tenant will pay Tenant's
Percentage within fourteen (14) days of receipt of such statement. Operating
Expenses of the Building are defined in Section 6.2.2. Tenant shall have the
right, on reasonable prior notice and during Landlord's business hours at
Landlord's offices, (but not more often than annually) to inspect such of
Landlord's records as are necessary to establish the Operating Expenses of the
Building for the current period and the one year preceding. If Tenant's
examination establishes that Operating Expenses were incorrectly stated,
Landlord shall reimburse (or Tenant shall pay, as the case may be) promptly such
as is required for Tenant's full payment of Operating Expenses actually due
under this Lease with respect to the period examined by Tenant.
Together with the last such payment of Operating Expenses for any
period, and on the first of each months until the next statement, Tenant shall
remit to Landlord one month's portion of the Tenant's Percentage of Operating
Expenses incurred during the period just completed. If such monthly remittances
exceed Operating Expenses for the period, Tenant may credit the difference
against the next installment of Operating Expenses due to Landlord (or if such
excess is determined after the end of the Term, Landlord shall apply such excess
to any remaining obligations Tenant may have under the Lease, and shall pay any
balance to Tenant). If such remittances are less than the Operating Expenses for
such period, Tenant shall pay the difference to Landlord when Operating Expenses
are payable as provided in the preceding paragraph. Landlord may change the
fiscal period as Landlord desires.
6.2.2 Definition of Operating Expenses. "Operating Expenses" shall mean (i) all
amounts of whatever nature incurred by Landlord or Tenant in connection with the
operation, management, repair and replacement not involving casualty loss (to
which Article 10 applies), and maintenance of the Building and (ii) the
Building's pro rata share (apportioned by building area as determined by
Landlord among the building and the properties referenced below) of all amounts
of whatever nature incurred by Landlord in connection with the operation,
management, repair and replacement of the grounds surrounding the Building and
Landlord's other properties in the proximity of the Building as determined by
Landlord in its sole discretion and of the parking facilities serving Landlord's
several properties in the proximity of the Building. For example, Operating
Expenses include charges for water and other public facilities, insurance
(including, without limitation, casualty, liability, environmental and other
insurance against such risks and in such amounts as Landlord, in its sole
discretion, shall determine or as may be required by any mortgagee), exterior
maintenance of the Building; snow removal, sidewalk maintenance and repair and
maintenance of the grounds, shrubs, trees and other landscaping of Landlord's
other properties near the Building; security service, if any; compensation of
personnel below the grade of building manager providing service to the Building;
the costs of maintaining assessed value referenced in Section 6.2.1 and a
management fee atnot in excess of competitive rates. Operating Expenses pursuant
to subsection (ii) above are in the nature of common expenses and shall be
allocated among Landlord's several properties in the proximity of the Building
according to leasable building area or such other equitable basis as Landlord
shall determine. Operating Expenses do not include mortgage charges, brokerage
commissions, executive (owner) salaries, Landlord's cost of work done for a
particular tenant for which Landlord is reimbursed by such tenant and such
portion of expenditures as are not properly chargeable against income. If,
during the Term, Landlord in replacement of items makes capital expenditures in
replacement of items not fully includible in Operating Expenses for the year in
which made, there shall be included in Operating Expenses for each year the
amount, if any, by which the annual charge-off (determined as hereinafter
provided) of such expenditure (less insurance proceeds, if any, collected by
Landlord by reason of damage to, or destruction of, the capital item being
replaced) exceeds the annual charge-off of the original cost of such item; and
(ii) if a capital expenditure is made for a new capital item not in replacement
of another capital item, provided such capital expenditure is appropriate to
prudent management of real property or is of direct benefit to Tenant, then
Operating Expenses shall include in each fiscal year thereafter the annual
charge-off of such capital expenditure. Annual charge-off shall be determined by
dividing the original cost of a capital item or expenditure by the useful life
(in years) of the capital item acquired. Landlord will determine useful life in
accordance with generally accepted accounting principles.
In no event shall Operating Expenses include:
(1) repairs or other work occasioned by fire or other casualty or by
the exercise of eminent domain;
(2) leasing commissions, attorneys' fees, costs and disbursements and
other expenses incurred in connection with negotiations or disputes with
tenants, other occupants, or prospective tenants or occupants;
(3) costs for which Landlord can be reimbursed by insurance, warranties
or similar sources;
(4) renovating or otherwise improving, decorating, painting or
redecorating space for tenants or other occupants of the properties;
(5) Landlord's cost of electricity and other services that are sold to
specific tenants (as distinguished from most or all tenants in Landlord's
properties in the environs f the Premises) and for which Landlord is entitled to
be reimbursed by such tenants as an additional charge; and
(6) any fines or penalties incurred due to violations by Landlord or
any governmental rule or authority.
If Landlord sustains any expense hereunder by reason of misuse or
neglect of the Premises, the Building, the grounds near Landlord's other
properties in the vicinity of the Building or driveways and parking areas by
Tenant, or its agents, employees and invitees, such cost shall not be Operating
Expenses and Tenant shall reimburse Landlord fully on within five business of
days of demand for all such expenses as additional rent.
6.2.3 Certain Excluded Charges. Tenant shall not be required to pay any
franchise, corporate, estate, inheritance, succession, capital levy, or transfer
tax of Landlord, or any income tax imposed in respect of Landlord's income from
the Premises (as distinguished from an excise tax upon rentals, which shall be
Tenant's obligation).
6.3 Late Charges. Rent and additional rent not paid within thirty (30) days of
the date due shall bear interest at the annual rate of 2% over the Base Rate of
the First National Bank of Boston, whichever is greater, (or at any lower
maximum rate permitted by law) from the date first due until paid.
6.4 Security Deposit. During such time as the Security Deposit (if any) is a
cash deposit, Tenant shall deposit and maintain with Landlord the Security
Deposit which Landlord may commingle with Landlord's other funds without
interest to Tenant. The Security Deposit shall be returned to Tenant at the
expiration of this Lease upon Tenant's written request, provided Tenant has not
breached this Lease. Landlord in its discretion may apply the Security Deposit
in total or partial satisfaction of any default by Tenant, without affecting or
waiving any other rights or remedies. At the time of execution of this Lease,
there was no Security Deposit.
7. ALLOCATION OF BUILDING SERVICES
7.1 Landlord's Duties. Within a reasonable period after Landlord has received
notice (or has actual knowledge) of the need thereof, Landlord shall repair the
exterior walls (but not interior surfaces thereof or window glass) structural
interior walls (but not the surfaces thereof or glass therein) and the roof of
the Premises, in each instance to the general standard of repair now existing at
Landlord's various properties in the vicinity of the Building, and shall repair,
or replace if necessary, utilities exterior to the Building. Landlord's duty of
repair shall not extend to reasonable wear and tear. (Article 10 governs
casualty or taking).
7.2 Tenant's Duties. Except as specifically herein otherwise provided, Tenant
shall keep the Premises, including all non-structural elements,
and as to Tenant's obligations under Section 8.l, the Premises and areas in the
vicinity thereof, in the same good order, repair and condition as they are in on
the Commencement Date, or by improvements may be put in during the Term,
reasonable use and wear and damage by fire or other insured casualty, damage by
taking and damage resulting from any failure of Landlord to perform its
obligations only excepted, including, for example, floors, doors, windows,
glass, interior wall surfaces, fixtures and equipment in the Premises, heating,
air conditioning, plumbing, sprinkler system, electrical and mechanical fixtures
and equipment, and the air, water and soil in, under and in the vicinity of the
Premises. Tenant shall keep the Premises safe, orderly and clean, including, rug
shampoos and waxing of tile floors.
7.3 Tenant to Pay for All Utilities. Tenant will contract, in its own name, and
pay for all utility services, including without limitation, water, electricity
and heating, ventilation and air conditioning. Landlord shall not be liable to
Tenant for interruption in or curtailment of any utility service. If any
utilities are not separately metered, Tenant shall pay a pro rata share, based
on use as determined by Landlord or at Landlord's option according to Tenant's
Percentage of Operating Expenses.
7.4 Deleted.
7.4.1 Repairs for Account of Other Party. If, after written notice or after oral
notice which is reasonable under the circumstances, Tenant fails to do needed
repairs promptly, Landlord may, at Tenant's expense, make any such repairs
without waiving any right or remedy for Tenant's failure to make such repairs.
If after written notice, Landlord fails to do needed repairs within
thirty days (or such further reasonable time as may be required in the
circumstances, provided Landlord promptly commences and diligently pursues such
repairs), Tenant may thereafter give Landlord written notice of Tenant's
intention to perform such repairs, with a description in reasonable detail of
the work proposed to be done. Landlord may send one or more notices (the
"Objection Notice') within said thirty days identifying those portions of the
work described by Tenant which in Landlord's judgment are not Landlord
responsibilities under this Lease. Tenant may set-off against Annual Base Rent
(but not against Additional Rent) the reasonable cost of that work performed by
Tenant after the thirty day period expired which was not
identified in an Objection Notice. In no event may Tenant set off any work done
prior to expiration of thirty day period or identified in an Objection Notice
until Landlord and Tenant have agreed that it is a Landlord obligation under
this Lease.
7.5 Curtailed Services. If any of Landlord's services are curtailed by any
reason or cause beyond Landlord's reasonable control, there shall be no
abatement of rent or other compensation due to Landlord, nor shall Tenant's
obligations hereunder be reduced. Landlord agrees to pursue restoration of such
services, but this undertaking does not alter in any way the preceding sentence.
7.6 Payment for Tenant's Work. The Premises shall at all times be free of liens
for labor and materials. To that end, Tenant shall pay promptly for all work or
services with respect to the Premises undertaken or on behalf of Tenant. Tenant
shall have the right to contest / dispute claims brought by contractor's,
subcontractors and suppliers so long as Tenant keeps the Premises free of all
liens and claims in the nature of liens, whether by surety bonds or otherwise,
and Landlord has not been named in (or, if named, has been dismissed from) any
litigation related thereto. Landlord shall receive a commercially reasonable
supervisory fee, determined by Landlord, for work performed by or under the
supervision of Landlord.
8. TENANT'S ADDITIONAL COVENANTS
8.1 Compliance with Law, Including Hazardous Substances. Tenant, at its sole
expense, shall comply with all applicable law, and all applicable insurance
requirements, with respect to Tenant's use and occupancy of the Premises and
will not do or permit to be done anything upon the Premises which will violate
applicable law or invalidate or be in conflict with fire and casualty insurance
policies. Except for necessary quantities of customary and usual cleaning
supplies used in cleaning and maintenance of the Premises, which shall be
properly stored, and except as otherwise provided in this Section 8.l, there
shall not be brought on or kept within the Premises any inflammable, combustible
or explosive fluid, material or chemical, or any hazardous, toxic or radioactive
material or substance, including without limitation oil (collectively,
"Hazardous Substances") regulated by any local, state or Federal law (for
example, the Federal Comprehensive Environmental Response Compensation Liability
Act of l980, the Massachusetts Hazardous Waste Management Act and the
Massachusetts Oil and Hazardous Material Release Prevention Act) as now in
existence or as hereafter enacted or amended (collectively "Hazardous Substance
Law").
Tenant agrees not to store or use any Hazardous Substance in, on or
about the Premises, or dispose of Hazardous Substances from the Premises to any
other location, without Landlord's prior written consent, (i) such Hazardous
Substance is related to the Permitted Uses of the Premises and (ii) Tenant has
obtained all permits and approvals therefor and the same are validly issued and
outstanding and may be relied on by Tenant, or commit or suffer to be committed
in or on the Premises any act which would require the filing of a notice
pursuant to any Hazardous Substance Law, including without limitation
Massachusetts General Laws Chapter 2lE. Tenant agrees that it shall use, store
and dispose of such Hazardous Substances only in accordance with applicable
Hazardous Substance Laws (and, to the extent stricter than such Laws, according
to the standard operating and quality control procedures and standards
prevailing in the diagnostic medical products development industry ("Industry
Standards"), Tenant agrees that it shall, upon written request therefor from
Landlord, advise Landlord in writing in detail reasonably satisfactory to
Landlord of (a) Tenant's safety and training procedures for handling such
materials and (b) application for, receipt of, rejection regarding and
withdrawal or lapse of any license or permit required with respect to Hazardous
Substances relating to Tenant's Permitted Uses of the Premises. Tenant agrees
that it shall, upon written request from Landlord from time to time, advise
Landlord in writing of any Hazardous Substances used or stored by Tenant in the
Premises (and on written advice from Tenant regarding any confidentiality
requirements with respect to any Hazardous Substance disclosed to Landlord,
Landlord shall comply with such confidentiality requirements). In the event that
Tenant
receives from any federal, state or local governmental agency any notice of
violation or alleged violation of any Hazardous Substance Law, Tenant agrees to
forward to Landlord a copy of any such notice within three (3) days of Tenant's
receipt thereof, and Tenant agrees to take all steps necessary to bring Tenant's
use of the Premises into compliance with such Hazardous Substance Law and any
other applicable law.
Tenant shall maintain on the Premises or, with notice to Landlord, at
another location in the greater Boston area, throughout the Term and, after the
termination of this Lease, at its main office, for at least five (5) years, (i)
records of all Hazardous Substances used in Tenant's business at the Premises or
otherwise brought on to the Premises and (ii) copies of all written materials
which to Tenant's knowledge constitute any part (or all) of the Industry
Standards. Subject to such confidentiality, proprietary information and trade
secret assurances as Tenant reasonably may impose with regard to further
disclosure of such records and materials, and information gained therefrom to
third parties, Landlord or its representatives may from time to time inspect and
copy such records and materials. As to materials stored at other than the
Premises, Tenant agrees to provide such copies to Landlord at Landlord's written
request. All information obtained by Landlord from its review of such records
and materials shall be used solely for evaluating compliance with Hazardous
Substances Laws and Tenant's obligations under this Lease, shall be held in
strict confidence by Landlord, and shall not be disclosed to any third party
(except in connection with the matters specifically contemplated by this Lease
or as mandated by any applicable governmental law, ordinance or regulation, and
then only to the extent necessary to accomplish the matters set forth herein or
as to so mandated). Notwithstanding anything to the contrary contained in this
Section, Landlord shall have the right to make the information available to its
employees having in Landlord's good faith judgment a need to know, to
consultants or other parties retained or contracted by Landlord to evaluate the
information and/or the Premises, and to Landlord's legal counsel, provided that
such employees, consultants and other parties, and counsel shall be bound by
these confidentiality provisions.
At Landlord's or Landlord's lender's request from time to time during,
and upon the expiration of, the Term of this Lease, Tenant shall cause the
Premises and the Building and land, air and water related thereto to be
inspected by a qualified professional satisfactory to Landlord for the presence
of any material or substance prohibited or regulated under any Hazardous
Substance Law and to obtain and forward to Landlord the professional's written
report setting forth the scope and results of such inspection; provided however,
that during the Term Landlord may require only one "without cause" inspection,
and Landlord can require other inspections during the Term only if Landlord has
reason to believe or suspect that there has been a release of Hazardous
Substances or other violation of Hazardous Substance Law for which Tenant would
be responsible. (Landlord's lender is not bound by this restriction.). In
addition, Landlord may, at its expense, have such inspections performed at any
reasonable time and Tenant will cooperate with such inspections, provided
however, that any such inspections shall be conducted in a manner reasonably
intended to minimize any disruption of Tenant's conduct of its business.
Tenant agrees not to cause, permit or tolerate, by act or omission of
Tenant, Tenant's employees, agents or contractors or any other person who is on
or in the vicinity of the Premises by reason of Tenant's occupancy of the
Premises, any release or discharge any Hazardous Substance within, onto or in
the vicinity of the Premises. Tenant's responsibility shall include all releases
or discharges of Hazardous Substances (a) occurring during the Term, without
regard to actual occupancy by Tenant, and during any other period Tenant is in
occupancy of all or any part of the Premises (the "Possession Period") and also
(b) occurring or continuing to occur after the Possession Period by virtue of
events first occurring during the Possession Period for which Tenant is
responsible under this Section.
Tenant agrees at Tenant's sole cost and expense to remove from the
Premises, and the buildings adjacent to and the air, land and water above,
around and under, the Premises and buildings adjacent thereto, as more
completely set forth on Exhibit 4 any Hazardous Substance which may be released
thereon for which Tenant is responsible under this Lease. Tenant shall not be
obligated to remove any Hazardous Substances (a) that were on the Premises prior
to the date on which Tenant, its contractors, agents or employees first entered
the Premises (which the parties agree is before the Commencement Date of the
Term) or (b) caused by the acts or omissions of Landlord without regard to fault
and involving Hazardous Substances other than those brought on the Premises by
Tenant.
Tenant shall be liable for and shall indemnify Landlord, as additional
rent, against any and all liability arising from the breach of any of Tenant's
covenants and agreements under this Section 8.l, including without implied
limitation (i) all costs and expenses of or related to response and remediation,
whether performed under judicial order, governmental requirement or in voluntary
compliance with Hazardous Substance Laws, (ii) all liability for injury to
persons and damage to property, (iii) all fines and penalties and (iv) all costs
and expenses of dispute, such as attorneys' fees and costs and the fees and
costs of Licensed Site Professionals and other persons whose services are
reasonably related to such liability, incurred by Landlord in connection
therewith, whenever such liability shall arise and for as long as Landlord
remains so liable. Tenant shall be liable to and indemnify Landlord to the same
extent as Landlord is or may be liable to any governmental agency or to any
other person (such as corporations, other legally existing entities and
individuals), including, by way of example, other tenants of Landlord's adjacent
properties and abutting landowners. Tenant's liability to Landlord is intended
to include the same standard of liability imposed on Landlord by Hazardous
Substance Law, including strict liability as well as liability for negligence
and for willfully wrong conduct.
Tenant shall not be responsible to Landlord under this Section, either
as to removal or indemnification, for releases first occurring off the Premises
due to the conduct of persons other than persons for whom Tenant is responsible
which migrate onto the Premises, nor shall Tenant be responsible to Landlord
under this Section, either as to removal or indemnification, for any releases
occurring by act or omission of Landlord, Landlord's employees, agents,
contractors or any other person on or in the vicinity of the Premises at
Landlord's direction or request, provided as to releases occurring on the
Premises involving Hazardous Substances maintained by Tenant that
Tenant has exercised due care supervising the person who caused the release
during the time that person was on the Premises.
Tenant releases Landlord from any and all liability with respect to
damage, however and whenever arising, actual or contingent, liquidated or
unliquidated, which is due to Hazardous Substances, excepting only liability
arising from the direct acts of Landlord, its employee and agents.
Nothing in this Section shall be construed to limit the scope of any
other indemnification in this Lease to the extent the same applies to other than
Hazardous Substances.
8.2 Indemnity. Tenant agrees to defend and hold Landlord harmless from all
injury, loss, claim or damage to or of any person or property while on the
Premises or in or about the Building and on account of any work or thing
whatsoever done (other than by or on behalf of Landlord) on the Premises
occurring during the Term or during any other period, before or after the Term,
during which Tenant is in occupancy or has possession of the Premises ,
including without implied limitation attorneys' fees; except that to the extent
required by Massachusetts law the foregoing shall not exculpate Landlord from
liability for its own negligence or wilful act.
Landlord agrees to defend and hold Tenant harmless from all injury,
loss, claim or damage to or of any person or property occurring on the Premises
or in or about the Building as a result of the willful negligent act of Landlord
or its employees, including without implied limitation attorneys' fees.
8.3 Tenant's Property is Tenant's Risk. All property of Tenant and persons
claiming by, through, or under Tenant at any time on the Premises, shall be at
the sole risk of Tenant or such person and if the whole or any part thereof
shall be destroyed or damaged by any cause whatever, no part of said loss or
damage shall be borne by Landlord; except that to the extent required by
Massachusetts law the foregoing shall not exculpate the Landlord from liability
for its own negligence or wilful act.
8.4 Estoppel Certificate. Upon not less than fifteen (15) days prior written
request, Landlord and Tenant agree to execute, acknowledge and deliver to the
other a statement certifying this Lease is unmodified and in full force and
effect (or stating any modifications), and the dates to which the Annual Fixed
Rent and all additional rent and other charges have been paid and any other
information reasonably requested. Such statement may be relied upon by any
prospective purchaser, mortgagee or lending source.
8.5 Overloading, Nuisance; Restrictions on Research Activity Volatile or
Dangerous Substances. Tenant shall not injure, overload, deface, or otherwise
harm the Premises, nor commit any nuisance, nor permit the emission of any
objectionable noise, noxious or objectionable odor or of any particulate
residue; nor make, allow or suffer any waste; nor make any use of the Premises
which is improper, offensive, or contrary to any law, ordinance, order or
regulation of any public authority or which will invalidate or increase the
premium of any insurance.
All chemical, biological and similar work shall be conducted in a safe
manner and always in strict compliance with applicable law and guidelines of
governmental authority.
All dangerous substances shall be stored safely and securely in
compliance with law and applicable government and insurance requirements and
guidelines.
8.6 Yield Up. At the expiration or earlier termination of this Lease, Tenant
shall surrender all keys to the Premises, remove all personal property, remove
such installations made by it as Landlord may request and all Tenant's signs,
and yield up the Premises (including all Tenant's installations and improvements
made by Tenant to the Building during the Term and also including such of
Tenant's fixtures as are identified on Exhibit 5 hereto, except for those which
Landlord requested Tenant to remove and except for Tenant's other fixtures,
including without limitation trade fixtures and equipment not affixed in any
manner to the Premises, which at all times are Tenant's property and shall be
removed) broom clean and in the same good order, repair and condition in which
Tenant is obliged to maintain the same under this Lease. Tenant's property not
removed within thirty (30) days may be disposed of by Landlord as Landlord shall
determine. Tenant indemnifies Landlord against all loss, cost and damage,
including without limitation attorneys' fees and costs resulting from Tenant's
failure and delay in surrendering the Premises. If Tenant's failure to surrender
the Premises as required hereunder renders the Premises unavailable for use by
another tenant (for example, where Tenant or another person claiming under
Tenant remains in occupancy or Tenant or such other person has caused, permitted
or suffered the contamination of, the Premises or areas adjacent thereto with a
Hazardous Substance), Tenant shall be deemed in holdover status while such state
of facts continues to exist and shall be liable under Section l3 in addition to
all other liability under the Lease, including this Section.
8.6.1 What are Intended to be Fixtures. Equipment, fixtures, improvements and
appurtenances attached to or built into the Premises prior to or during the Term
shall be and remain part of the Premises and are intended as real estate
fixtures and shall not be removed by Tenant unless otherwise expressly provided
in this Lease or except as otherwise expressly provided in a separate written
agreement signed by both Landlord and Tenant contemporaneously with or after the
execution of this Lease. All electric, plumbing, heating and sprinkling systems,
fixtures and outlets, vaults, panelling, molding, shelving, radiator enclosures,
flooring, HVAC equipment and HVAC ducts shall be deemed to be real estate
fixtures, whether or not attached to or built into the Premises.
8.7 Alterations and Improvements by Tenant After Term Commencement. Tenant shall
make no alterations, installations, removals, additions or improvements costing
in the aggregate $5,000.00 or more, or affecting structure, or affecting
Building service systems in or
to the Premises without Landlord's prior written consent, which consent shall
not be unreasonably withheld. Tenant may make interior, nonstructural
alterations, installations, removals, additions or improvements costing in the
aggregate not more than $5,000.00 and not affecting Building service systems in
or to the Premises after written notice thereof to Landlord describing the work
to be done in reasonable detail. Any approvals for occupancy of the Premises,
municipal or otherwise, necessitated by the nature of Tenant's business shall be
Tenant's sole responsibility.
8.8 Floor Load; Heavy Machinery. Tenant shall place no load upon any floor of
the Premises exceeding the floor load per square foot of area which such floor
was designed to carry or which in its present condition it is capable of
carrying without damage and which is allowed by law.
8.9 Assignment and Subletting. Tenant shall not assign this Lease, or sublet or
license the Premises or any portion thereof, or advertise the Premises for
assignment or subletting or permit the occupancy of all or any portion of the
Premises by anybody other than Tenant (all of the foregoing actions are
sometimes collectively referred to as an "assignment") without obtaining, on
each occasion, the prior written consent of Landlord, which consent shall be
granted or withheld within thirty (30) days of Landlord's receipt of Tenant's
written request detailing the proposed assignment in detail reasonably
satisfactory to Landlord and which consent shall not be unreasonably withheld,
provided Tenant's Termination Rights have expired or been waived, but which
consent may otherwise be granted or withheld in Landlord's sole discretion.
Except as provided in the following sentence, an assignment shall include,
without limitation, any transfer of Tenant's interest in this Lease by operation
of law, merger or consolidation of Tenant into any other firm or corporation and
the transfer or sale of a controlling interest in Tenant, whether by sale of its
capital stock or otherwise. Assignment shall not include (1) assignment or
sublease to any parent or subsidiary corporation or corporation under identical
ownership as Tenant, (2) sale of the original Tenant by stock transfer or sale
of substantially all of its assets, (3) admission of additional stockholders or
other investors or (4) merger, consolidation or other reorganization involving
the original Tenant, provided in each instance that Landlord receives prior
written notice thereof and receives, promptly on request, all information with
respect to the transaction or new entity, as the case maybe, as Landlord had
previously received (or was entitled to receive, whether or not previously
requested) as to the original Tenant. In additional, while Tenant is a publicly
traded company, transfer of its capital stock on a public exchange shall not
constitute an assignment. Tenant shall not offer to make or enter into
negotiations with respect to an assignment with (i) any tenant of Landlord in
any property in the East Cambridge environs of the Building, or any affiliate
of, or any entity owned directly or indirectly by, such a tenant; and (ii) any
party with whom Tenant knows or reasonably should have known that Landlord is
then negotiating with respect to other space in any property in the East
Cambridge environs of the Building. Tenant's request for consent to an
assignment shall include a copy of the proposed instrument of assignment, if
available, or else a statement of the proposed assignment in detail reasonably
satisfactory to Landlord and financial information concerning the proposed
assignee as the assignee will, if approved, be required to submit to Landlord
under Section 8.12. If Tenant does make an assignment
hereunder, and if the aggregate rent and all other amounts and charges payable
to Tenant under such assignment less the out-of-pocket costs to Tenant of such
transaction exceed the rent and other charges payable hereunder, Tenant shall
pay to Landlord, as additional rent one-half the amount of such excess when the
same is paid to Tenant, provided that Landlord shall receive its entire share of
such excess prior to Tenant retaining its share in the event the assignee fails
to pay the entire amount it owes Tenant.
Tenant shall pay to Landlord, as additional rent, Landlord's reasonable
legal fees and other expenses incurred in connection with any proposed
assignment, including without limitation fees for review of documents.
Notwithstanding any such assignment, the original Tenant named herein shall
remain directly and primarily obligated under this Lease.
It shall be a condition to the effectiveness of any such assignment
that such assignee, subtenant, licensee or occupant (collectively, an
"assignee") agree directly with Landlord to be liable, jointly and severally
with Tenant, for the performance of all of Tenant's agreements under this Lease
(including without limitation payment of rent). Landlord may collect rent and
other charges from the assignee and apply the net amount collected to the rent
and other charges herein reserved, but no such assignment or collection shall be
deemed a waiver of the provisions of Section 8.9, or the acceptance of the
assignee as a Tenant, or a release of Tenant from direct and primary liability
for the further performance of covenants on the part of Tenant herein contained.
The consent by Landlord to an assignment shall not relieve Tenant from obtaining
the express consent of Landlord to any further assignment.
In the event of any assignment requiring Landlord's consent (i)
Tenant's right to add First Offer Premises to this Lease and (ii) Tenant's
Termination Right shall each be void and of no further force or effect, whether
exercised before or after Tenant's request for, or Landlord's granting of,
Landlord's consent to assignment, except, that Tenant's exercise of its rights
with respect to First Offer Premises shall remain valid as to premises
respecting which (i) Tenant exercised its right to add the First Offer Premises
to the Premises and (ii) either (a) has taken possession thereof for active
conduct of its business or (b) has commenced construction of improvements for
its use, in either case prior to requesting Landlord's consent to assignment.
8.10 Landlord's Access to Premises. (a) Landlord may erect, use and maintain
pipes, ducts and conduits in and through the Premises provided the same do not
materially interfere with Tenant's use and enjoyment of the Premises; (b) on
reasonable prior notice, Landlord and any mortgagee and their representatives
may enter the Premises at reasonable times to inspect, repair, or replace
elements in the Premises or to inspect, repair, replace or improve other
portions of the Building or equipment or to comply with any law, order or
requirement of governmental or other authority or of exercise any right reserved
to Landlord by this Lease; (c) on reasonable prior notice, Landlord may at
reasonable times, show the Premises to other persons. If during the last month
of the Term, Tenant shall have removed all or substantially all of Tenant's
property therefrom, Landlord may immediately enter and alter, renovate and
redecorate the
Premises without abatement of rent and without liability to Tenant for
compensation, and such acts shall have no effect upon this Lease.
Landlord agrees that in exercising it rights of entry to the Premises
Landlord shall respect Tenant's reasonable safety, security and confidentiality
requirements made known to Landlord and in a manner intended to minimize
disruption to Tenant's use and occupancy of the Premises (but entry in
emergencies shall be made under the circumstances in question without regard to
the preceding portion of this sentence).
Landlord or Landlord's agents may also enter the Premises, forcibly if
necessary under the circumstances as determined in Landlord's good faith
judgment, without rendering Landlord or such agents liable therefor, and without
in any manner affecting the obligations and covenants of this Lease.
8.11 Construction Activity. Construction activity in or near the Premises or the
Building shall neither entitle Tenant to any reduction in rent nor cause
Landlord to have any liability to Tenant. Landlord shall inform Tenant of such
work known to Landlord (but Landlord's failure to do so shall not affect the
preceding sentence.)
8.12 Tenant's Financial Statements. Within 90 days after the end of each of
Tenant's fiscal years, Tenant shall furnish Landlord with a true copy of
Tenant's annual financial statements, prepared or audited by a certified public
accountant, as the case may be, for Tenant's fiscal year just ended. Tenant
shall also furnish Landlord with true copies of Tenant's quarterly financial
statements to the extent the same are prepared for Tenant. Tenant agrees to meet
with Landlord at Landlord's request to review and discuss Tenant's financial
statements.
While Tenant is a public company, Tenant shall only be required to
furnish to Landlord copies of such annual, quarterly and other reports required
to be filed by Tenant with the SEC.
Landlord agrees not to disclose any information received pursuant to
this Section which is not public information to any person other than Landlord's
employees or any mortgagee or prospective mortgagee, or prospective purchaser,
of the property of which the Building is a part.
9. INSURANCE
9.1 Public Liability Insurance. Tenant shall take out and maintain in force
throughout the Term commercial general liability insurance naming Tenant and all
persons claiming under Tenant as named insured, and naming Landlord and all
persons claiming under Landlord as additional insureds, against all claims and
demands for any injury to person or property which may be claimed to have
occurred on the Premises, the Building, the grounds and ways adjoining the
Building, in an amount which at the beginning of the Term shall not be less than
$3,000,000 or such higher amounts as Landlord shall determine are required by
reason of Tenants' use of the Premises and which thereafter, if Landlord
requires, shall be in such higher amounts as are then consistent with sound
commercial practice in Cambridge, Massachusetts. This coverage may be provided
through a primary policy or a primary policy with excess umbrella, at Tenant's
election.
9.2 Casualty Insurance. Tenant shall take out and maintain throughout the Term a
policy of fire, vandalism, malicious mischief, extended coverage and so-called
all risk coverage insurance insuring Tenant's improvements to the Premises and
Tenant's fixtures, furnishing and equipment to their full insurable value,
except that any such insurance may be written with an 80% co-insurance clause.
Such insurance shall include waiver of subrogation protection in conformance
with Section 9.5 if available on commercially reasonable terms.
With Landlord's prior written consent, which shall not be unreasonably
withheld, Tenant may self-insure property which will belong to Tenant at the
termination of the Lease.
9.3 Certificates of Insurance. Such insurance shall be placed with insurers
satisfactory to Landlord and authorized to do business in Massachusetts. Such
insurance shall provide that it will not be subject to cancellation,
termination, or change except after at least thirty (30) days' prior written
notice to Landlord and parties designated by Landlord. The policy or policies,
or a duly executed certificate or certificates for the same, together with
satisfactory evidence of the payment of the premium thereon, shall be deposited
with Landlord and parties designated by Landlord at the beginning of the Term
and, upon renewals of such policies, not less than thirty (30) days prior to the
expiration of the term of such coverage. If Tenant fails to comply with any of
the foregoing requirements, Landlord may obtain such insurance on behalf of
Tenant and may keep the same in effect, and Tenant shall pay Landlord, as
additional rent, the premium cost thereof upon demand.
9.4 Landlord's Insurance. Landlord shall maintain during the Term such policies
of casualty insurance, liability insurance and other coverages in such amounts
and insuring against such risks as Landlord shall from time to time determine.
Such insurance shall include waiver of subrogation protection in conformance
with Section 9.5 if available on commercially reasonable terms. Tenant agrees to
cooperate with Landlord in obtaining and maintaining such insurance.
9.5 Waiver of Subrogation. Landlord and Tenant hereby release each other, to the
extent of their respective insurance coverages, from any and all liability for
any loss or damage caused by fire or any of the extended coverage casualties,
even if such fire or other casualty shall be brought about by the fault or
negligence of the party benefited by the release or its agents, provided,
however, this release shall be in force and effect only with respect to loss or
damage occurring during such time as the policies of fire and extended coverage
insurance maintained or required hereunder to be maintained by the releasing
party shall contain a clause to the effect that such release shall not affect
said policies or the right of the releasing party to recover thereunder.
Landlord and Tenant each agree to make best efforts to have their respective
fire and extended coverage insurance policies include such a clause so long as
the same is obtainable without extra cost, or if extra cost is chargeable
therefor, so long as the party benefited by such clause in its discretion
chooses to pay such extra cost.
9.6 Increase in Insurance Risk. If Tenant's use of or failure to use, the
Premises results in any increase in Landlord's insurance rates on the Building
or Landlord's other property near the Building, Tenant shall reimburse Landlord
for such increase in insurance charges, provided that Landlord provides Tenant
with reasonable evidence that Tenant was the cause of the increase. Without
limiting the generality of the foregoing, the insurer's statement to that effect
shall be sufficient evidence of such cause.
10. DAMAGE TO PREMISES AND CONSEQUENCES OF EMINENT DOMAIN
10.1 Repair and Restoration of Casualty Loss. If the Premises or any part
thereof shall be damaged by an insured casualty, Landlord shall proceed with
diligence, and at its expense, to repair or cause to be repaired such damage to
the Premises (excluding all Tenant's property and all Tenant's improvements to
the Building and the Premises, which are Tenant's sole responsibility), subject
to the then applicable statutes, building codes, zoning ordinances and
regulations of governmental authority, but only to the extent of insurance
proceeds available to Landlord. Tenant shall repair or cause to be repaired
damage to Tenant improvements, whether or not covered by insurance and whether
or not the proceeds of such insurance are adequate to defray the cost of repair.
All repairs to and replacements of property which Tenant is entitled to remove
under Section 8.6.1 shall be made by and at the expense of Tenant. Landlord
shall not be liable for delays in the making of any such repairs which are
beyond Landlord's reasonable control, nor for any inconvenience or annoyance to
Tenant or injury to Tenant's business resulting from such delays, but Landlord
shall use reasonable efforts to minimize any disruption.
10.2 Abatement of Rent. If the Premises or a part of them shall have been
rendered unfit for use and occupation by reason of such damage, rent shall be
abated in proportion to the space not available to Tenant until the Premises are
repaired (except as to property to be repaired by or at the expense of Tenant)
as nearly as practicable to the condition the Premises were in immediately prior
to their damage. If Landlord, or any mortgagee of the Building shall be unable
to collect insurance proceeds (including rent insurance proceeds) applicable to
the damage because of some action or inaction on the part of Tenant, or the
employee, licensees or invitees of Tenant, the cost of repairing such damage
shall be paid by Tenant and there shall be no abatement of rent.
10.3 Termination for Major Damage or If Damaged at End of Term. If (i) the
Premises are damaged by fire or other casualty (whether or not insured) at any
time during the last eighteen (18) months of the term hereof such that the cost
to repair the damage is reasonably estimated to exceed one-third (1/3) of the
total Annual Fixed Rent plus additional rent (projected on the basis of the
preceding lease year) payable for the period from the estimated date of
restoration until the Termination Date and for these purposes the Termination
Date shall be December 31, 1999 unless Tenant has waived irrevocably, or
otherwise has no right to exercise, the Termination Right (provided, however,
that Landlord shall have no duty of repair for damage occurring during the final
six (6) months of the Term), (ii) the Building is so damaged by fire or other
casualty (whether or not insured) that substantial alteration or reconstruction
or demolition of the Building shall in Landlord's judgment be required, (iii)
the Building is damaged or destroyed to the extent of five (5%) percent or more
of the then insurable replacement value from any cause not covered by the
insurance carried by Landlord under Section 9.4, or (iv) the available insurance
proceeds, in Landlord's reasonable judgment, would be insufficient to cover the
cost of repair, or (v) in Landlord's judgment the Premises cannot be restored as
required by this Lease within 30 90 working days after work commences, then and
in any of such events this Lease and the term hereof may be terminated at the
election of Landlord by a notice in writing of its election so to terminate
which shall be given by Landlord to Tenant within sixty (60) days following such
fire or other casualty. The effective termination date shall be not less than
thirty
(30) days after the day on which such termination notice is received by Tenant.
In the event of any termination, this Lease and the term hereof shall expire as
of such effective termination date as though that were the Termination Date as
stated in Section 1 and the Annual Fixed Rent, additional rent and all other
charges shall be apportioned as of such date.
Tenant shall have the right to terminate this Lease following any such
damage occurring during the last eighteen (18) months of the Term as then in
effect if Landlord refuses to provide, within a reasonable time after Tenant's
written request, written assurance that the damaged portion of the Premises will
be restored for Tenant's use within nine (9) months from the date of casualty
or, at any time during the Term if Landlord has assured Tenant that the Premises
will be restored within nine (9) months, but Landlord, having so assured Tenant,
fails to deliver the restored Premises for Tenant's use on substantially that
schedule.
10.4 Eminent Domain. In the event that the Premises or any part thereof shall be
taken by eminent domain for any public or quasi-public use, or, by virtue of any
such taking, shall suffer any damage (direct, indirect or consequential) for
which Landlord or Tenant shall be entitled to compensation, then this Lease may
be terminated at the election of Landlord by a notice in writing of its election
so to terminate which shall be given by Landlord to Tenant within sixty (60)
days following the date on which Landlord shall have received notice of such
taking, appropriation or condemnation. In the event that a substantial part of
the Premises (or, if the Premises include all or part of more than one building,
of any building included in the Premises) shall be taken, appropriated or
condemned or that all access to the Premises shall be permanently taken, then
(and in any such event) this Lease and the Term hereof may be terminated as to
the building(s) taken at the election of Tenant by a notice in writing of its
election so to terminate which shall be given by Tenant to Landlord within sixty
(60) days following the date on which Tenant shall have received notice of such
taking, appropriation or condemnation. No action of public authorities with
respect to the public streets in the vicinity of the Building, including without
limitation elimination of vehicular access thereon, shall affect this Lease in
any way except as stated in this Section 10.4.
Upon the giving of any such notice of termination (either by Landlord
or Tenant) this Lease and the Term hereof shall terminate on or retroactively as
of the date on which Tenant shall be required to vacate any part of the Premises
or shall be deprived of a substantial part of the means of access thereto,
provided, however, that Landlord may in Landlord's notice elect to terminate
this Lease and the Term hereof retroactively as of the date on which such taking
became legally effective. Rent and other charges shall be apportioned as of such
termination date. If neither party (having the right so to do) elects to
terminate, Landlord will, with reasonable diligence and at Landlord's expense,
restore the remainder of the Premises, or the remainder of the means of access,
as nearly as practicable to the same condition as existed prior to such taking.
A just proportion of the rent, according to the nature and extent of the injury
to the Premises, shall be abated until what may remain of the Premises shall be
restored as aforesaid, and thereafter a just proportion of the rent according to
the nature and extent of the part of the Premises so taken shall be abated for
the balance of the term of this Lease.
Except for any award expressly and specifically reimbursing Tenant for
moving or relocation expenses, Landlord reserves all rights to compensation and
damages created, accrued or accruing by reason of any such taking, in
implementation and in confirmation of which Tenant hereby acknowledges that
Landlord shall be entitled to receive all such compensation and damages, grants
to Landlord all and whatever rights (if any) Tenant may have to such
compensation and damages, and agrees to execute and deliver all and whatever
further instruments of assignment as Landlord may from time to time request. In
the event of any taking of the Premises or any part thereof for temporary use,
(i) this Lease shall be and remain unaffected thereby, (ii) rent shall not
▇▇▇▇▇, and (iii) Tenant shall be entitled to receive for itself any award made
for such use, provided, that if any taking is for a period extending beyond the
Term of this Lease, such award shall be apportioned between Landlord and Tenant
as of the Termination Date or earlier termination of this Lease.
11. DEFAULT AND REMEDIES
11.1 Events of Default. (a) If Tenant shall default in the performance of any of
its obligations to pay the Annual Fixed Rent or additional rent hereunder within
five (5) ten (10) business days after Landlord gives written notice of
nonpayment, or if, within thirty (30) days after written notice from Landlord to
Tenant specifying any other default or defaults, Tenant has not commenced
diligently to correct the default or defaults so specified or has not thereafter
diligently pursued such correction to completion, or (b) if any assignment shall
be made by Tenant for the benefit of creditors, or (c) if Tenant's leasehold
interest shall be taken on execution, or (d) if a petition is filed by Tenant or
any guarantor of Tenant's obligations under this Lease for adjudication as a
bankrupt or for reorganization or any arrangement under any provision of the
Bankruptcy Code as then in force and effect, or (e) if an involuntary petition
under any of the provisions of said Bankruptcy Code is filed against Tenant or
any such guarantor and is not dismissed within sixty (60) days thereafter, or
(f) if Tenant or any such guarantor shall be declared bankrupt or insolvent
according to law, or (g) if a receiver, trustee or assignee shall be appointed
for the whole or any part of Tenant's property or the property of any such
guarantor and shall not be removed within sixty (60)) days thereafter, then, and
in any of such cases, Landlord and its agents lawfully may, in addition to and
not in derogation of any remedies for any preceding breach of covenant,
immediately or at any time thereafter so long as Landlord has not accepted a
cure of such default and without demand or notice and with or without process of
law (forcibly, if necessary) enter into and upon the Premises or any part
thereof in the name of the whole or mail a notice of termination addressed to
Tenant at the Premises, and repossess the same as of Landlord's former estate
and expel Tenant and those claiming through or under Tenant and remove its and
their effects (forcibly, if necessary) without being deemed guilty of any manner
of trespass and without prejudice or prior breach of covenant, and upon such
entry or mailing as aforesaid this Lease shall terminate, Tenant hereby waiving
all statutory rights (including without limitation rights of redemption, if any)
to the extent such rights may be lawfully waived, and Landlord, with notice to
Tenant, may store Tenant's effects, and those of any person claiming through or
under Tenant at the expense and risk of Tenant, and, if Landlord so elects, may
sell such effects at public auction and apply the net proceeds to the payment of
all sums due to Landlord from Tenant, if any, and pay over the balance, if any,
to Tenant. For purposes of this Section 11.1 and all sections under Article 11,
"Tenant" shall include any guarantor of any of Tenant's obligations under this
Lease and any corporation of which Tenant is a controlled subsidiary.
11.2 Deleted.
11.3 Damages - Termination. Upon the termination of this Lease under the
provisions of this Article 11, then except as otherwise provided in Section
11.2, Tenant shall pay to Landlord the rent and other charges payable by Tenant
to Landlord up to the time of such termination, shall continue to be liable for
any preceding breach of covenant, and in addition, shall pay to Landlord as
damages, at the election of Landlord either:
(x) the amount by which, at the time of the termination of this Lease
(or at any time there after if Landlord shall have initially elected damages
under subparagraph (y),
below), (i) the aggregate of the rent, taxes, Operating Expenses and other
charges projected over the period commencing with such termination and ending on
the Termination Date as stated in Section 1 (or such later date to which the
Lease has been extended) exceeds (ii) the aggregate projected value of the
Premises for such period each discounted to present value at the then prevailing
rate for Treasury bills having a maturity which most closely corresponds to the
remaining Term of the Lease; or
(y) amounts equal to the rent, taxes and Operating Expenses and other
charges which would have been payable by Tenant had this Lease not been so
terminated, payable upon the due dates therefor specified herein following such
termination and until the Termination Date as specified in Section 1, (or such
later date to which the Lease has been extended) provided, however, if Landlord
shall re-let the Premises during such period, that Landlord shall credit Tenant
with the net rents received by Landlord from such re-letting, such net rents to
be determined by first deducting from the gross rents as and when received by
Landlord from such re- letting the expenses incurred or paid by Landlord in
terminating this Lease, as well as the expenses of re-letting, including
altering and preparing the Premises for new tenants, brokers' commissions,
attorneys' fees and all other similar and dissimilar expenses properly
chargeable against the Premises and the rental therefrom, it being understood
that any such re-letting may be for a period equal to or shorter or longer than
the remaining term of this Lease as extended; and provided, further, that (i) in
no event shall Tenant be entitled to receive any excess of such net rents over
the sums payable by Tenant to Landlord hereunder and (ii) in no event shall
Tenant be entitled in any suit for the collection of damages pursuant to this
Subparagraph (y) to a credit in respect of any net rents from a re-letting
except to the extent that such net rents are actually received by Landlord prior
to the commencement of such suit. If the Premises or any part thereof should be
re-let in combination with other space, then proper apportionment on a square
foot area basis shall be made of the rent received from such re-letting and of
the expenses of re-letting.
Suit or suits for the recovery of such damages, or any installments
thereof, may be brought by Landlord from time to time at its election, and
nothing contained herein shall be deemed to require Landlord to postpone suit
until the date when the term of this Lease would have expired if it had not been
terminated hereunder.
Nothing herein contained shall be construed as limiting or precluding
the recovery by Landlord against Tenant of any sums or damages to which, in
addition to the damages particularly provided above, Landlord may lawfully be
entitled by reason of any default hereunder on the part of Tenant.
11.4 Effect of Taxes and Operating Expenses on Damages. In the event of any
termination of this Lease or re-entry by Landlord under the provisions of this
Article 11 or other proceeding or action or any provision of law by reason of
default under this Lease on the part of Tenant, then for the purpose of
computing damages as shall be payable pursuant to this Article 11, it is agreed
that:
(a) If (i) Landlord shall be entitled to liquidated damages under
Section 11.2, or if (ii) Landlord shall elect that damages be payable pursuant
to Subparagraph (x) of Section 11.3, the computation of such damage shall be
made, insofar as the same relates
to Taxes and Operating Expense by taking the product of (i) the sum of Taxes and
Operating Expense for the immediately preceding fiscal year of Landlord,
respectively, times (ii) the number of years remaining of the full term hereby
granted, on the assumption that the amount of such Taxes and Operating Expense
so payable for the immediately preceding fiscal year of Landlord would have
remained constant for each subsequent fiscal year of the full term hereby
granted.
(b) If Landlord shall elect that such damages be payable pursuant to
Subparagraph (y) of Section 11.3, the sums referred to in said Subparagraph (y)
shall include, without limitation, the amount of the Taxes and Operating Expense
which under the provisions of Section 6.2 would be payable by Tenant for the
period referred to in said Subparagraph (y).
11.5 Landlord's Expenses in Performing Obligations of Tenant. If Tenant shall
default in the performance of any covenant of this Lease, Landlord may without
waiving or releasing any right or remedy immediately, or at any time thereafter,
without notice if the matter in question has previously been drawn to Tenant's
attention, and otherwise with reasonable prior notice (but no notice is
necessary in emergencies as determined by Landlord in good faith),, perform the
same for Tenant's account and Tenant shall pay on demand as reimbursement the
sum so paid by Landlord with all interests, costs and damages.
11.6 Remedies Not Exclusive. Landlord's and Tenant's remedies stated in this
Lease are cumulative and not exclusive of any other remedies or means of redress
available to Landlord or Tenant by law.
11.7 Landlord's Default. Landlord shall not be in default of any of its
obligations hereunder unless it shall fail to perform such obligations within
thirty (30) days (or such further time as is reasonably necessary) after receipt
of written notice thereof from Tenant.
11.8 Effect of Waivers of Default. No consent or waiver, express or implied, by
either party to any act or omission which otherwise would be a breach of the
other party's obligations shall in any way be construed to impair such other
party's continuing obligations hereunder or operate to permit similar acts or
omissions.
11.9 Repeated Defaults. No notice of default need be given under Section 11.1,
and no default in the payment of Annual Fixed Rent or Additional Rent shall be
curable if on two prior occasions in any one lease year Tenant has failed to
make such payment or received a notice of default from Landlord and, in such
event, Landlord shall have the right to terminate this Lease as in Section 11.1
provided and the right to damages as in Section 11.3 provided.
11.10 No Accord and Satisfaction. No acceptance by Landlord of a lesser sum than
the Annual Fixed Rent, Additional Rent or any other charge then due shall be
deemed to be other than on account of the earliest installment of such rent or
charge due, nor shall any endorsement or statement on any check or any letter
accompanying any check
for payment as rent or other charge be deemed an accord and satisfaction, and
Landlord may accept such check or payment without prejudice to Landlord's right
to recover the balance of such installment or pursue any other remedy in this
Lease provided.
12. SUBORDINATION
12.1 Subordination. This Lease is subject and subordinate to all matters of
record including without limitation, ground leases and mortgages, any of which
may now or hereafter be placed on or affect the Premises, or any part thereof
and to each advance made or to be made under any such mortgages, and to all
renewals, modifications, consolidations, replacements and extensions thereof and
all substitutions therefor. This Section 12 shall be self-operative and no
further instrument of subordination shall be required. In confirmation of such
subordination, Tenant shall execute and deliver promptly any certificate that
Landlord and/or any mortgagee and/or lessor under any ground or underlying lease
and/or their respective successors in interest may request. Landlord agrees to
use reasonable efforts to obtain a nondisturbance agreement from the present and
any future mortgagee. "Reasonable efforts" shall consist of (1) submitting to
the mortgagee a written request and (2) providing the mortgagee with information
it requests.
Without limitation of any of the provisions of this Lease, if any
ground lessor or mortgagee shall succeed to the interest of Landlord by reason
of the exercise of its rights under such ground lease or mortgage (or the
acceptance of voluntary conveyance in lieu thereof) or the expiration or sooner
termination of such ground lease, however caused, then such successor shall give
written notice to Tenant (which in the case of a ground lease shall be within
thirty (30) days after such expiration or sooner termination) that it is
electing to succeed to the interest of Landlord under this Lease; and in such
event, at the request of such successor the Tenant shall attorn to such
successor and shall ipso facto be and become bound directly to such successor in
interest to Landlord to perform and observe all the Tenant's obligations under
this Lease without the necessity of the execution of any further instrument.
Tenant shall not be entitled to assert against mortgagee or any purchaser from
mortgagee at foreclosure or voluntary conveyance in lieu of foreclosure any
prepaid rent or offsets against or credits due to Mortgagor on account of any
period following sale of the premises at foreclosure of by voluntary conveyance
in lieu of foreclosure. Tenant agrees at any time and from time to time during
the term hereof to execute a suitable instrument suitable to the mortgagee in
confirmation of Tenant's agreements as aforesaid.
13. HOLDING OVER
13.1 Holding Over. If Tenant or anyone claiming under Tenant shall remain in
occupancy of all or any portion of the Premises, or shall fail to yield-up the
Premises free of Hazardous Substances, in each case delaying rental or delivery
of possession of the Premises to another tenant, Tenant or such other person
shall be deemed to be holding over after the termination of this Lease.
If Tenant or anyone claiming under Tenant shall remain in possession of
the Premises or any part thereof after the expiration of the Term of this Lease
without any agreement in writing between Landlord and Tenant with respect
thereto, prior to acceptance of rent by Landlord the person remaining in
possession, Tenant (or such person claiming under Tenant) shall be deemed a
tenant at sufferance, and after acceptance of rent by Landlord a tenant from
month-to-month, in either case at a use and occupancy charge equal to 165% the
rate of Annual Fixed Rent plus all other charges payable under this Lease, and
subject to the provisions of this Lease (excluding all provisions for rent)
insofar as the same may be applicable. Notwithstanding the foregoing, prior to
acceptance of rent for any period after the Term, Landlord, at its option, may
re-enter and take possession of the Premises or any part thereof forthwith
without process or by any manner provided by law, in every case without
prejudice to claim for the use and occupancy charge as stated above.
If the Premises or areas adjacent thereto have been contaminated with
Hazardous Substances by reason of Tenant's act or neglect (but without regard to
fault), in any case delaying for any reason rental of the Premises to another
tenant, Tenant shall be deemed to continue to be in possession of the affected
Premises as a tenant at sufferance for the duration of such delay, however
caused, at the use and occupancy charge set forth above and subject to the
provisions of this Lease as aforesaid, and Tenant agrees that unless Tenant (and
such person claiming under Tenant) is in bankruptcy or insolvency proceedings or
similarly disabled from performing Tenant's obligations hereunder, Landlord has
the right, at Landlord's election, but no duty or obligation, to restore the
Premises to the condition required at the termination of this Lease hereunder,
and Tenant is solely responsible to do so. Landlord's election to make the
Premises conform with the requirements of this Lease, such as by removing any
Hazardous Substances, shall not diminish in any way Landlord's claim for the use
and occupancy charge as aforesaid for the duration of any delay in re-leasing
the Premises resulting therefrom.
14. MISCELLANEOUS PROVISIONS
14.1 Notices. All notices hereunder shall be in writing and deemed duly served
if delivered in hand or to a recognized national courier service such as FedEx
or if mailed, certified mail, to Tenant, at the Original Address of Tenant or
such other address as Tenant shall have last designated by notice in writing to
Landlord and, Landlord, at the Original Address of Landlord or such other
address as Landlord shall have last designated by notice in writing to Tenant.
At Tenant's written request, a courtesy notice will also be given to Tenant's
counsel named in such request but such notice shall not be necessary to
Landlord's rights.
14.2 Quiet Enjoyment. Upon Tenant's paying the rent and performing all
provisions of this Lease, Tenant may peaceably and quietly have, hold and enjoy
the Premises during the Term without any manner of hindrance or molestation from
Landlord or anyone claiming under Landlord.
14.3 Limitation of Landlord's Liability. Tenant shall neither assert nor seek to
enforce any claim for breach of this Lease against any of Landlord's assets
other than Landlord's interest in the Premises and in the rents, issues and
profits thereof, and Tenant agrees to look solely to such interest for the
satisfaction of any liability of Landlord under this Lease. In no event shall
Landlord (which term shall include, without limitation any of the officers,
trustees, directors, partners, beneficiaries, joint venturers, members,
stockholders or other principals or representatives, disclosed or undisclosed,
thereof) ever be personally liable for any such liability or ever be liable for
consequential damages.
14.4 Acts of God. In any case where either party hereto is required to do any
act, other than the payment of Annual Fixed Rent or additional rent, delays
caused by or resulting from acts of God, war, civil commotion, fire, flood or
other casualty, labor difficulties, shortages of labor, materials or equipment,
unusual government regulations, moratorium or similar acts of government,
unusually severe weather, or other causes beyond such party's reasonable control
shall not be counted in determining the time during which such act shall be
completed, whether such time be designated by a fixed date, a fixed time or "a
reasonable time," and such time shall be deemed to be extended by the period of
such delay.
14.5 Applicable Law and Construction. This Lease is made under Massachusetts law
and shall bind Landlord and Tenant and their respective heirs, successors and as
signs. If any provision of this Lease shall to any extent be invalid, the
remainder of this Lease, and the valid portion of such provisions, shall not be
affected thereby. There are no oral or written agreements between Landlord and
Tenant affecting this Lease. This Lease may be amended only by instruments in
writing executed by Landlord and Tenant. The titles of the several Articles and
Sections contained herein are for convenience only and shall not be considered
in construing this Lease.
14.6 Arbitration. Wherever this Lease provides that any question shall be
determined by arbitration, such question shall be determined by arbitration in
accordance with the
rules of the American Arbitration Association and judgment upon the award
rendered shall be binding upon the parties hereto and may be entered in any
court having jurisdiction. Arbitration shall be held in Boston, Massachusetts
and the cost thereof shall be borne equally between the parties.
14.7 Timely Performance. Time is of the essence in all matters relating to this
Lease.
14.8 No Broker. Tenant represents and warrants that it has not directly or
indirectly dealt, with respect to the leasing of the Building, nor had its
attention called to the Premises by anyone other than the broker, person or
firm, if any, designated in Section 1. Tenant agrees to exonerate and save
harmless and indemnify Landlord against any claims for a commission arising out
of the execution and delivery of this Lease or out of negotiations between
Landlord and Tenant with respect to the leasing of other space in the Building,
provided that Landlord shall be solely responsible for the payment of brokerage
commissions to the broker, person or firm, if any, designated in Section 1.
14.9 Financing Requirements. If in connection with obtaining financing for the
Building, a bank, insurance company, pension trust or other institutional lender
shall request reasonable modifications in this Lease as a condition to such
financing, Tenant will not unreasonably withhold, delay or condition its consent
thereto provided that such modifications do not increase the obligations of
Tenant hereunder or materially adversely affect the leasehold interest hereby
created.
14.10 Agreement Made Only When Lease Signed. This Lease shall bind Landlord and
Tenant only when executed and delivered by both. This Lease when signed by one
party and delivered to the other shall constitute an offer to enter into a lease
on the terms set forth herein. No submission of this lease, unsigned by either
party to the other shall constitute an offer to lease.
14.11 Demolition. In the event Landlord decides to demolish the Building,
Landlord may terminate this Lease by not less than eighteen (18) months notice
to Tenant, and upon the giving of such notice this Lease shall, without the
necessity of further writing, terminate on the Termination Date stated in such
notice with the same effect as if such date had been the Termination Date stated
in Section l.l; provided that Landlord shall reimburse Tenant the unamortized
cost (based on the Term) to Tenant of improvements to the Building made by
Tenant with Landlord's consent which are to become Landlord's property at the
end of the Term. At Landlord request, Tenant agrees to provide Landlord with a
written statement of such costs in reasonable detail.
14.12 Relocation. At its option, Landlord may on not less than one hundred (100)
days notice require Tenant to relocate all or any part of its uses in the
Premises for the balance of the Term from the Premises to other property of
Landlord in the vicinity of the Premises of substantially equivalent quality and
area, which other premises shall thereafter be the Premises in substitution for
those Premises from which Tenant was relocated for all purposes of this lease.
Landlord's notice shall identify the premises to which Tenant will be relocated,
the Premises (or portion(s) thereof) from which Tenant is to be relocated and
Landlord's estimated date for the relocation to
occur. Any cost of preparing the alternate premises to condition suitable for
Tenant's use shall be Landlord's sole expense. If (but only if) Tenant gives
Landlord written notice within thirty (30) days of the date of Landlord's notice
rejecting such relocation ("Tenant's Rejection Notice"), then this Lease shall
terminate on the date of estimated relocation stated in Landlord's notice with
the same force and effect as if such date had been the agreed Termination Date;
except that if, within seven (7) calendar days of receipt of Tenant's Rejection
Notice Landlord gives Tenant notice cancelling all relocation, then this Lease
shall remain in full force and effect as if no relocation notice had ever been
given.
14.13 No Parking. This Lease does not create any parking privileges on any of
Landlord's property.
EXHIBIT 1
FLOOR PLAN OF PREMISES
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EXHIBIT 1-A
FLOOR PLAN OF FIRST OFFER PREMISES
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EXHIBIT 2
LANDLORD'S WORK
NONE
EXHIBIT 3
TENANT'S WORK
EXHIBIT 4
Clean-up Requirements,
Including Standards for Biological, Chemical and Radioactive Agents
General
Except as more specifically addressed below, Tenant shall remove any
Hazardous Substances released by Tenant on, under or adjacent to the Premises to
levels below the "reportable" or "releasable" concentration and/or quantities of
such Hazardous Substances set forth in applicable Hazardous Substance Laws. The
following shall also apply to biological, chemical and radioactive agents.
Biological
Applicable regulatory requirements shall be adhered to (for example, if
the bloodbourne pathogen standard is applicable, the requirements for clean up
and decontamination included in 29 CFR 1910.1030 shall be adhered to).
Where no applicable regulatory requirements exist, National Institutes
of Health (NIH) guidelines for general cleaning and disinfecting areas where
biological agents were used, such as presently set forth in the NIH's
"Laboratory Safety Monograph - A supplement to the NIH Guidelines for
Recombinant DNA Research", shall be adhered to.
Chemical
Applicable regulatory requirements shall be adhered to.
Where no applicable regulatory requirements exist, general cleaning of
all working and walking surfaces of the laboratories shall be performed using an
appropriate industrial strength cleaner.
Without limiting the foregoing, any disposal of washing solutions from
the Premises after cleanup shall conform with Massachusetts Water Resources
Authority and other applicable regulatory requirements.
Radioactive
Applicable regulatory requirements shall be adhered to, including
without limitation Nuclear Regulatory Commission (NRC) licensing, documentation
and decommissioning requirements and procedures.
All radioactivity, including materials regulated under the Atomic
Energy Act of 1954 and unregulated radioactive materials, shall be removed from
the Premises using NRC decontamination procedures so that all radioactive
materials remaining on the Premises are below the guidelines of NRC Regulatory
Guide 1.86.
Without limiting the foregoing, all regulated radioactive materials
shall be removed in compliance with NRC licensing and decommissioning
requirements, and Tenant shall provide Landlord with a copy of the acceptance
letter from the NRC stating that the Premises have been decontaminated and
decommissioned properly.
EXHIBIT 5
LIST OF FIXTURES AND EQUIPMENT WHICH REMAIN WITH PREMISES
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