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EXHIBIT 10.31
STANDARD FORM COMMERCIAL LEASE
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1. PARTIES Silver Lake Realty Trust, ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇
(fill in) 02160,
LESSOR, which expression shall include its heirs,
successors, and assigns where the context so
admits, does hereby lease to Kalisto Biologicals,
2. PREMISES Inc., a Delaware corporation, ▇▇ ▇▇▇▇▇ ▇▇▇▇,
(▇▇▇▇ in and include, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
if applicable, suite LESSEE, which expression shall include its
number, floor successors, executors, administrators, and assigns
number, and where the context so admits, and the LESSEE hereby
square feet) leases the following described premises:
Approx. 12,000 gross sq.ft. of space,
including Lessee's proportionate share of building
common area, on the second floor of the building
located at 1480 Soldier's Field Road, Brighton,
Mass., as shown on the attached PLAN,
together with the right to use in common, with
others entitled thereto, the hallways, stairways,
xxx xxxxxx necessary for access to said leased
premises, xxxxxxxx Except as otherwise provided
herein, premises to be delivered "as-is".
3. TERM The term of this lease shall be for five (5) years
(fill in) commencing on November 1, 1997 and ending on
October 31, 2002. See 22.A. for Extension
Privilege.
4. RENT The LESSEE shall pay to the LESSOR rent at the
(fill in) rate xx as specified in 22.A., 22.B. and
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22.C. herein.
5. SECURITY Upon the execution of this lease, the LESSEE shall
DEPOSIT pay to the LESSOR the amount of $10,500.00
(fill in) dollars, which shall be held as a security for
the LESSEE's performance as herein provided and
refunded to the LESSEE at the end of this lease
subject to the LESSEE's satisfactory compliance
with the conditions hereof.
6. RENT xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxx
ADJUSTMENT xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
(fill in)
See 22.C. for Additional Rent.
xxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
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xxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
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7. UTILITIES xxxxxxxxxxxxxxxx LESSEE shall pay for all LESSEE's
(fill in or delete) utilities, water and sewer use charges, xxxxxx
and services including heating fuel xxxxx and electricity for
lights, power and air conditioning, and any other
utility it may consume.
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8. USE OF LEASED The LESSEE shall use the leased premises only for
PREMISES the purpose of office and laboratory and light
(fill in) manufacturing space, and related uses.
9. COMPLIANCE The LESSEE acknowledges that no trade or
WITH LAWS occupation shall be conducted in the leased
premises or use made thereof which will be
unlawful, improper, noisy or offensive, or
contrary to any municipal by-law or ordinance in
force in the city or town in which the premises
are situated.
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10. FIRE The LESSEE shall not permit any use of the leased premises
INSURANCE which will make voidable any insurance on the property of
which the leased premises are a part, or on the contents of
said property or which shall be contrary to any law or
regulation from time to time established by the New England
Fire Insurance Rating Association, or any similar body
succeeding to its powers. The LESSEE shall on demand
reimburse the LESSOR, and all other tenants, all extra
insurance premiums caused by the LESSEE's use of the
premises.
11. MAINTENANCE The LESSEE agrees to maintain the leased premises in the
OF PREMISES same condition as they are at the commencement of the term
or as they may be put in during the term of this lease,
reasonable wear and tear, damage by fire and other casualty
only excepted, and whenever necessary, to replace plate
glass and other glass therein, acknowledging that the leased
premises are now in good order and the glass whole. The
LESSEE shall not permit the leased premises to be
overloaded, damaged, stripped, or defaced, nor suffer any
waste. LESSEE shall obtain written consent of LESSOR before
erecting any sign on the premises. such consent of Lessor
not to be unreasonably withheld. Continued in 22.D.
12. ALTERATIONS- The LESSEE shall not make structural alterations or
ADDITIONS additions to the leased premises, but may make
non-structural alterations provided the LESSOR consents
thereto in writing, which consent shall not be unreasonably
withheld or delayed. All such allowed alterations shall be
at LESSEE's expense and shall be in quality at least equal
to the present construction. LESSEE shall not permit any
mechanics' liens, or similar liens, to remain upon the
leased premises for labor and material furnished to LESSEE
or claimed to have been furnished to LESSEE in connection
with work of any character performed or claimed to have been
performed at the direction of LESSEE and shall cause any
such lien to be released of record forthwith without cost to
LESSOR. Any alterations or improvements made by the LESSEE
shall become the property of the LESSOR at the termination
of occupancy as provided herein. No cutting or patching
walls, roof, or floors without Lessor's prior approval.
13. ASSIGNMENT- The LESSEE shall not assign or sublet the whole or any part
SUBLEASING of the leased premises without LESSOR's prior written
consent, which consent shall not be unreasonably withheld or
delayed. Notwithstanding such consent, LESSEE shall remain
liable to LESSOR for the payment of all rent and for the
full performance of the covenants and conditions of this
lease.
14. SUBORDINATION This lease shall be subject and subordinate to any and all
mortgages, deeds of trust and other instruments in the
nature of a mortgage, now or at any time hereafter, a lien
or liens on the property of which the leased premises are a
part and the LESSEE shall, when requested, promptly execute
and deliver such written instruments as shall be necessary
to show the subordination of this lease to said mortgages,
deeds of trust or other such instruments in the nature of a
mortgage.
15. LESSOR'S The LESSOR or agents of the LESSOR may, at reasonable times,
ACCESS enter to view the leased premises and may remove placards
and signs not approved and affixed as herein provided, and
make repairs and alterations as LESSOR should elect to do
and may show the leased premises to others, and at any time
within three (3) months before the expiration of the term,
may affix to any suitable part of the leased premises a
notice for letting or selling the leased premises or
property of which the leased premises are a part and keep
the same so affixed without hindrance or molestation.
16. INDEMNIFI- The LESSEE shall save the LESSOR harmless from all loss and
CATION AND damage to Lessee's property occasioned by the use or escape
LIABILITY of water or by the bursting of pipes, as well as from any
(fill in) claim or damage resulting from neglect in not removing snow
and ice from the roof of the building or from the sidewalks
bordering upon the premises so leased, or by any nuisance
made or suffered on the leased premises, unless such loss is
caused by the neglect of the LESSOR. The removal of snow
and ice from the sidewalks bordering upon the leased
premises shall be Lessee's responsibility. The Lessor shall
machine snow-plow the paved parking area.
17. LESSEE'S The LESSEE shall maintain with respect to the leased
LIABILITY premises and the property, of which the leased premises are
INSURANCE a part, comprehensive public liability insurance in the
(fill in) amount of $1,000,000.
with property damage insurance in limits of $300,000.
in responsible companies qualified to
do business in Massachusetts and in good standing therein
insuring the LESSOR as well as LESSEE against injury to
persons or damage to property as provided. The LESSEE shall
deposit with the LESSOR certificates for such insurance at
or prior to the commencement of the term, and thereafter
within thirty (30) days prior to the expiration of any such
policies. All such insurance certificates shall provide that
such policies shall not be cancelled without at least ten
(10) days prior written notice to each assured named
therein.
18. FIRE, Should a substantial portion of the leased premises, or of
CASUALTY- the property of which they are a part, be substantially
EMINENT damaged by fire or other casualty, or be taken by eminent
DOMAIN domain, the LESSOR may elect to terminate this lease. When
such fire, casualty, or taking renders the leased premises
substantially unsuitable for their intended use, a just and
proportionate abatement of rent shall be made, and the
LESSEE may elect to terminate this lease if:
(a) The LESSOR fails to give written notice within
thirty (30) days of intention to restore leased
premises, or
(b) The LESSOR fails to restore the leased premises to
a condition substantially suitable for their
intended use within ninety (90) days of said fire,
casualty, or taking.
The LESSOR reserves, and the LESSEE grants to the LESSOR,
all rights which the LESSEE may have for damages or injury
to the leased premises for any taking by eminent domain,
except for damage to the LESSEE's fixtures, property, or
equipment.
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19. DEFAULT In the event that:
AND (a) The LESSEE shall default in the payment of any
BANKRUPTCY installment of rent or other sum herein specified
and such default shall continue for ten (10) days
after written notice thereof; or
(b) The LESSEE shall default in the observance or
performance of any other of the LESSEE's
covenants, agreements, or obligations hereunder
and such default shall not be corrected within
thirty (30) days after written notice thereof; or
(c) The LESSEE shall be declared bankruptcy or
insolvent according to law, or, if any assignment
shall be made of LESSEE's property for the benefit
of creditors,
then the LESSOR shall have the right thereafter, while such
default continues, to re-enter and take complete possession
of the leased premises, to declare the term of this lease
ended, and remove the LESSEE's effects, without prejudice to
any remedies which might be otherwise used for arrears of
rent or other default. The LESSEE shall indemnify the LESSOR
against all loss of rent and other payments which the LESSOR
may incur by reason of such termination during the residue
of the term. If the LESSEE shall default, after reasonable
notice thereof, in the observance or performance of any
conditions or covenants on LESSEE's part to be observed or
performed under or by virtue of any of the provisions in any
article of this lease, the LESSOR, without being under any
obligation to do so and without thereby waiting such
default, may remedy such default for the account and at the
expense of the LESSEE. If the LESSOR makes any expenditures
or incurs any obligations for the payment of money in
connection therewith, including but not limited to,
reasonable attorney's fees in instituting, prosecuting or
defending any action or proceeding, such sums paid or
obligations insured, with interest at the rate of six (6)
per cent per annum and costs, shall be paid to the LESSOR by
the LESSEE as additional rent.
20. NOTICE Any notice from the LESSOR to the LESSEE relating to the
(fill in) leased premises or to the occupancy thereof, shall be deemed
duly served, if mailed to the leased premises, registered or
certified mail, return receipt requested, postage
prepaid, addressed to the LESSEE. Any notice from the LESSEE
to the LESSOR relating to the leased premises or to the
occupancy thereof, shall be deemed duly served, if mailed to
the LESSOR by registered or certified mail, return receipt
requested, postage prepaid, addressed to the LESSOR at such
address as the LESSOR may from time to time advise in
writing. All rent and notices shall be paid and sent to the
LESSOR at ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
21. SURRENDER The LESSEE shall at the expiration or other termination of
this lease remove all LESSEE's goods and effects from the
leased premises, (including, without hereby limiting the
generality of the foregoing, all signs and lettering affixed
or painted by the LESSEE, either inside or outside the
leased premises). LESSEE shall deliver to the LESSOR the
leased premises and all keys, locks thereto, and other
fixtures connected therewith and all alterations and
additions made to or upon the leased premises, in the same
condition as they were at the commencement of the term, or
as they were put in during the term hereof, reasonable wear
and tear and damage by fire or other casualty only excepted.
In the event of the LESSEE's failure to remove any of
LESSEE's property from the premises, LESSOR is hereby
authorized, without liability to LESSEE for loss or damage
thereto, and at the sole risk of LESSEE, to remove and store
any of the property at LESSEE's expense, or to retain same
under LESSOR's control or to sell at public or private sale,
without notice any or all of the property not so removed and
to apply the net proceeds of such sale to the payment of any
sum hereunder, or to destroy such property.
22. OTHER It is also understood and agreed that the attached RIDER,
PROVISION PLAN, and GUARANTY are parts of this lease.
IN WITNESS WHEREOF, the LESSOR and LESSEE have hereunto set
their hands and common seals this 24th day of October 1997
/s/ ▇▇▇▇ ▇▇▇▇
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LESSOR Silver Lake Realty Trust
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, President
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LESSEE Kalisto Biologicals, Inc.
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RIDER TO LEASE, DATED OCTOBER 24, ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ REALTY TRUST AND
KALISTO BIOLOGICALS, INC., FOR PREMISES AT ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇,
MASS.:
22.A. EXTENSION PRIVILEGE
AND RENT: The Lessee shall have the right to extend the lease for
one additional term of five years commencing November 1,
2002, exercisable by notice to the Lessor, as provided in
Section 20. herein, on or before May 1, 2002.
During the extension term, if exercised, the base rent
shall be $153,600. per year, adjusted annually to reflect
the change in the cost of living according to the change
in the Consumer Price Index (CPI-U*) over that for 2001,
according to the following formula:
Rent for year commencing = $153,600.00 x CPI-U July 200x
November 1,200x ---------------
CPI-U July 2001
* where the CPI-U is the Consumer Price Index,
All Urban Consumers, All Items, (1982-84 = 100),
Boston, Mass. Should this index be unavailable
or inapplicable, comparable data shall be used.
Notwithstanding the above, the base rent for the
extension term shall not be less than $153,600. per year,
nor be reduced from one year to the next.
22.B. BASE RENT: The Lessee shall pay to the Lessor Base Rent as per the
following schedule:
Nov. 1, 1997- April 30, 1998: $10,500. per month;
May 1, 1998 - Oct. 31, 1998: $11,000. per month;
Nov. 1, 1998 - Oct. 31, 1999: $138,000. per year, $11,500. per mo.;
Nov. 1, 1999 - Oct. 31, 2000: $144,000. per year, $12,000. per mo.;
Nov. 1, 2000 - Oct. 31, 2001: $148,800. per year, $12,400. per mo.;
Nov. 1, 2001 - Oct. 31, 2002: $153,600. per year, $12,800. per mo.
Base rent shall be payable in advance on the first day of
each month. Base Rent for November 1997 shall be paid
upon execution of the lease.
Rents or other sums due hereunder not received by the
10th day of the month shall be subject to interest at the
rate of 18% per annum from the first day of the month.
22.C. ADDITIONAL RENT: Lessee shall pay to the Lessor as Additional Rent:
- Reimbursement for 50% of real estate taxes levied against
the land and building of which the premises are a part.
- Reimbursement for 50% of premiums for "all-risk"
insurance, including loss of rent, on the building and
improvements thereto.
- Reimbursement for 100% of common area costs including but
not limited to landscaping, snowplowing, and exterior
lighting. (If and when other tenant(s) occupy the
building, an equitable adjustment will be made.) The
Lessor represents that such common area costs shall be
typical of similar buildings in the area.
Lessee shall pay this Additional Rent as estimated by
Lessor, in 1/12th installments payable in advance on the
first day of each month. At reasonable intervals, Lessor
shall provide Lessee with updated estimates of these
expenses, and over- or under-payments shall be credited
or debited to the Lessee. Lessor's initial estimate of
the Additional Rent is $3,000.00 per month.
Lessee shall pay the Additional Rent for November 1997
upon execution of this lease.
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22.D. MAINTENANCE
(Continued): Any sign to be erected by Lessee shall be installed in
accordance with applicable building codes, and in
accordance with section 11. herein.
The Lessor shall be responsible for the structural
integrity of the building, the roof, and repairs and
maintenance of the building common areas and exterior.
The Lessee shall be responsible for interior cleaning,
disposal of debris, maintenance, and repairs, including
maintenance and repairs to the freight elevator, HVAC,
electrical and plumbing systems servicing its premises.
22.E. LEASEHOLD
IMPROVEMENTS: Upon execution of the lease, the Lessor shall put all
building systems, including the freight elevator, in
good working order; and segregate the utilities to
provide separate metering. Lessor shall also be
responsible for putting the associated parking lot and
landscaping in good condition. Lessor shall complete
such work in a timely manner.
The Lessee shall be responsible for the installation of
vinyl tile throughout the lab areas (including removal
of existing carpet) as well as any other changes or
improvements associated with Lessee's intended use. The
Lessee shall also be responsible for the removal of any
resulting debris. Lessee will obtain Lessor's
permission pursuant to section 12. herein prior to
making any alterations to the leased premises. All work
to be done according to applicable building codes and
in a good and workmanlike manner.
Upon full execution of this lease, including payment of
security deposit and first month's rent, Lessee may
have early occupancy of the premises to commence its
improvements.
22.F. PARKING: The Lessee shall have the use of 35 parking spaces in
the associated common parking lot. Lessor reserves the
right to establish reasonable rules and regulations
governing parking for the property.
22.G. LABORATORY USE: The Lessee shall comply with all applicable
governmental codes and regulations in its use of the
laboratory within the premises, and shall effect, at
its sole expense, any modifications to the premises
required for such compliance.
22.H. ENVIRONMENT: The Lessee shall not permit any hazardous materials or
substances to be used, stored, or disposed of
improperly or in conflict with any law, ordinance or
code, and Lessee shall be solely responsible for any
and all contamination or other damage associated with
use, control or disposal of same by Lessee.
22.I. ELEVATOR: Lessor shall modify the area on the first floor of the
building as shown on the attached PLAN in order to
provide Lessee access to the freight elevator.
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PLAN
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PREMISES LEASE TO KALISTO BIOLOGICALS, INC.
(2nd Floor)
[SECOND FLOOR PLAN]
[FIRST FLOOR PLAN]
(not included)
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GUARANTY
FOR VALUE RECEIVED, and in consideration for and as an inducement to
the Lessor to make the forgoing lease with Kalisto Biologicals, Inc., as Lessee,
the undersigned Advanced Magnetics, Inc. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
unconditionally guarantees the full performance and observance of the provisions
of the lease to be performed and observed by Lessee, Lessee's successors' and
assigns, and expressly agrees that the validity of this agreement and the
obligations of the guarantor hereunder shall in no ways be terminated, affected
or impaired by reason of the granting by the Lessor of any indulgences to Lessee
or by reason of the assertion by Lessor against Lessee of any of the rights or
remedies reserved to Lessor pursuant to the lease.
The undersigned guarantor has duly executed this instrument this 24th
day of October, 1997.
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Advanced Magnetics, Inc.
By ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ its CEO & CHAIRMAN OF THE BOARD
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COMMONWEALTH OF MASSACHUSETTS
ss. Middlesex Date 10/24/97
Then personally appeared the above named ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, and
acknowledged the foregoing to be his free act and deed, before me,
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Notary Public
My Commission Expires: 4/7/00