Exhibit 10a
INDENTURE OF LEASE
BY AND BETWEEN
RIVERTECH ASSOCIATES LLC
("LESSOR")
AND
DYNAGEN, INC.
("LESSEE")
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RIVERSIDE TECHNOLOGY CENTER
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▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
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Lease Dated July 1, 1997
RIVERSIDE TECHNOLOGY CENTER
COMMERCIAL LEASE
BETWEEN
RIVERTECH ASSOCIATES, LLC
AND
DYNAGEN, INC.
Agreement entered into this 1st day of July, 1997 in consideration of
the covenants and other benefits herein contained, the receipt and sufficiency
of said consideration being hereby acknowledged.
Rivertech Associates LLC, a Massachusetts limited liability company,
c/o The Abbey Group ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (herein "LESSOR"), does
hereby lease to DynaGen, Inc., a Delaware corporation having its principal place
of business at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, (herein "Lessee"),
and LESSEE does hereby lease from said LESSOR, certain space located at ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ (herein "Building"), being that portion
of the forth floor of the Building shown on Exhibit A attached hereto (herein,
"Lease Plan') consisting of approximately 12,262 rentable square feet as
appearing on said Lease Plan, (the "Leased or Premises" or "Premises"); with the
right in common with others in the Building to use (a) the parking areas on the
parcel of land on which the Building is located or otherwise serving the
Building (as said parking areas are expressly contemplated herein); (b) the
driveways and walkways necessary for access to the Building or such parking
areas; (c ) the entrances, lobbies, stairs, passenger elevators and corridors
necessary for access to the Premises; (d) the loading docks and freight
elevators in the Building or such parking areas; (c) Premises; (d) the loading
docks and freight elevators in the Building, subject to LESSOR's reasonable
rules and regulations promulgated according to section 24 of this Lease; (e) the
lavatories on the fourth floor of the Building; (f) the heating, ventilation,
air conditioning, plumbing, electrical, emergency and other mechanical systems
and equipment serving the Premises in common with other portions of the Building
(as more specifically set forth herein); and (g) such other common areas and
facilities as LESSOR may designate from time to time (collectively, the "Common
Areas").
1. TERM. LESSEE leases the Leased Premises for an original Term of five
(5) years (herein, "Lease Term"). The Term of the Lease shall begin on the
Commencement Date (as hereinafter defined), and shall end on the last day of the
calendar month which is sixty (60) full calendar months therefrom (the
"Termination Date").
The first full twelve (12) month period following the Commencement Date
(or, if the Commencement Date occurs on a date other than the first day of a
calendar month, the first day of the first calendar month after the Commencement
Date occurs) and each subsequent twelve month period during the Lease Term shall
be called "Lease Years". To
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the extent the Commencement Date occurs on any date other than the first of any
month, the first Lease Year shall be enlarged to include the period between the
Commencement Date and the beginning of the first full month of the Lease Term.
The Commencement Date shall be that date upon which the LESSOR delivers
the Office Space (as hereinafter defined) to LESSEE, as evidenced by LESSOR's
tender of its Phase I Delivery Notice as contemplated by paragraph 33 hereof, in
broom clean condition, and free of all tenants and occupants, and with Phase I
substantially complete (as those terms are hereinafter defined).
For example, if the Commencement Date is September 15, 1997, the first
Lease year begins on October 1, 1997 and ends September 30, 1998; the second
Lease Year begins on October 1, 1998 and ends September 30, 1999; and so on up
to the Termination Date of September 30, 2002.
2. RENT. Beginning as of the Commencement Date, LESSEE shall pay to
LESSOR rent at an annual rate pursuant to the schedule below during each Lease
Year (or portion thereof as the case may be) of the Lease Term hereof, (herein,
"Annual Base Rent"). Annual Base Rent shall be payable, in advance, in equal
monthly installments, due on the first day of each calendar month, pursuant to
the schedule below.
Notwithstanding any other provision of this Lease, because Annual Base
Rent is to be paid on the basis of a "Lease Year" which is defined above as the
first consecutive twelve (12) months after the Commencement Date, and because
the Commencement Date may be a date other than the first day of a calendar
month, there shall be an incremental installment (or installments) of rent (the
"Interim Rent'), which is based on Annual Base Rent for the first Lease Year as
set forth in the schedule below and reflective of the delivery of the Demised
Premises in two phases; determined as follows:
The monthly installment of Interim Rent shall consist of Phase I Rent
and Phase II Rent. Rent due for each applicable month from the Commencement Date
(i.e. the "Phase I Delivery Date") until the Phase II Delivery Date shall be
$26,142.53 (the "Phase I Rent"); and accordingly, that monthly rate equals a per
diem rate of $871.42. The "Phase II Delivery Date" shall be that date upon which
the LESSOR delivers the balance of the Leased Premises other than the Office
Space, to LESSEE, as evidenced by LESSOR's tender of its Phase II Delivery
Notice as contemplated by paragraph 33 hereof, in broom clean condition, and
free of all tenants and occupants, and with Phase II substantially complete (as
those terms are hereinafter defined). LESSEE shall pay to LESSOR Phase I Rent
based on the above stated per diem rate, for each day between the Commencement
Date and the Phase II Delivery Date. (Payment shall be made in advance, by the
first of each calendar month, in the full amount of the Phase I Rent, (for each
month starting September 1, 1997 where the Phase II Delivery Date has not yet
occurred) with there to be an appropriate adjustment made by any portions of
that month where Interim Rent consists of Phase I Rent and Phase II Rent, said
adjustment to be added to or subtracted from the first installment of Annual
Base Rent due the next full calendar month,
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and promptly credited or paid as the case may be). Additionally, for the balance
of any calendar month in which the Phase II Delivery Date occurs, through the
end of said calendar month, LESSEE's payment of Interim Rent shall be based on
the full Annual Base Rent for the first Lease Year pursuant to the schedule
below, in a monthly amount of $34,231.42 (the "Phase II Rent"), and accordingly,
that monthly rate equals a per diem rate of $1,141.05. LESSEE shall pay to
LESSOR Phase II Rent based on the above stated per diem rate, for each day
between the Phase II Delivery Date through the last day of the calendar month.
The next payment then due shall be the first monthly installment of Annual Base
Rent on or before the first of the calendar month.
Any and all charges for Additional Operating Expense Rent and other
Additional Rent as hereinafter defined and due after the Commencement Date shall
also be prorated on a daily basis reflective of the space delivered.
All payments of Interim Rent (i.e. Phase I Rent and Phase II Rent) and
Annual Base Rent; and also Additional Operating Expense Rent, Additional Tax
Escalation Rent, and any and all other sums and may be due from LESSEE to LESSOR
under this Lease, all of which shall be deemed "Additional Rent'; (the foregoing
to be singularly as to any item or collectively referred to herein as "Rent")
shall be made to LESSOR's agent, the Abbey Corporation, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or to such other agent or at such other place as
LESSOR may designate in writing.
LESSEE shall pay interest from the date due, at an annual rate of
fifteen (15%) percent for any installments of Annual Base Rent, or Additional
Rent or other payments due from LESSEE to LESSOR which are not received by
LESSOR within ten days after written notice from LESSOR that Annual Base Rent,
or Additional Rent or other payments were not received
SCHEDULE OF ANNUAL BASE RENT
Lease Year Annual Base Rent Monthly Installment
Lease Year 1 $410,777.00 $34,231.42
Lease Year 2 $416,908.00 $34,742.33
Lease Year 3 $423,039.00 $35,253.25
Lease Year 4 $429,170.00 $35,764.17
Lease Year 5 $435,301.00 $36,275.08
3. ADDITIONAL RENT. (Operating Expenses). Commencing as of the
Commencement Date, LESSEE, in addition to the sums payable to LESSOR as Annual
Base Rent as determined in Section 2 hereof, shall pay to LESSOR for each
calendar year (or portion thereof, as applicable) of the Lease Term, as
additional rent, LESSEE's Allocable percentage (as hereinafter defined) of any
and all increases in operating expenses
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attributable to the Building for said year of the Lease Term (herein,
"Additional Operating Expense Rent').
The base from which the amount of any increases in operating expenses
shall be determined is the operating expense schedule compiled and calculated by
LESSOR, representing actual operating expenses for calendar year 1996, as set
forth as Exhibit B attached hereto and incorporated herein, which LESSOR
represents a complete and correct summary of said operating expense amounts.
LESSEE's payment shall be prorated if the Lease commences or is terminated
(without breach) during any fiscal year.
Solely for the purpose of calculating LESSEE's Allocable Percentage of
increases in operating expenses over those shown in Exhibit B hereto, operating
expense increases shall not include the following: The costs of LESSEE's
improvements performed by LESSOR (if any), or as they may be approved by LESSOR
in the future; all items and services for which LESSEE or any tenant
specifically and directly reimburses LESSOR, or pays third persons at LESSOR's
directions; income or franchise taxes of the LESSOR; the costs incurred in any
rehabilitation, reconstruction, or other work occasioned by any insured
casualty, or by the exercise of the right of eminent domain, except to the
extent of any so-called "deductible" amount under policies of insurance (not to
exceed $25,000.00) or any costs actually incurred for which any insurance
company does not reimburse or compensate LESSOR (unless LESSOR was required
under this Lease to maintain insurance covering such costs); and those other
items listed in Exhibit B-1 hereto Notwithstanding the foregoing, LESSOR
reserves the right to claim as against LESSEE as provided under this Lease, or
any other tenant or individual or entity for any and all costs and expenses
caused directly or occasioned by their willful misconduct or other negligent or
wrongful acts or omissions.
Operating expense escalation is ordinarily invoiced to LESSEE by LESSOR
in January of each calendar year. LESSEE shall not be responsible for payment of
any increase in operating expense escalations for calendar year 1997 greater
than five (5%) percent over said operating expenses for calendar year 1996. If
the Lease Term includes any partial calendar year, the Additional Operating
Expense Rent for such calendar year shall be prorated according to the fraction
of the total days in such calendar year that are included in the Lease Term.
LESSOR shall have the option to require LESSEE to pay the Additional Operating
Expense Rent in any Lease year in equal monthly installments on the first day of
each calendar month during the Lease Term; provided LESSOR first delivers to
LESSEE its statement of the monthly amount due for the LEASE Year in question
based on LESSOR's reasonable estimates. Within ninety (90) days after the end of
each calendar year included within the Lease Term, LESSOR shall deliver to
LESSEE a written statement of the actual operating expenses and the actual
Additional Operating Expense Rent for such year. If such statement indicates
that the actual Additional Operating Expense Rent for such calendar year
exceeded LESSEE's estimated payments on account of Additional Operating Expense
Rent for such calendar year, then LESSEE shall pay such excess to LESSOR within
thirty (30) days of its receipt of such statement from LESSOR. If such statement
indicates that LESSEE's estimated payments on account of
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Additional Operating Expense Rent for such calendar year exceeded the actual
Additional Operating Expense Rent for such calendar year, LESSOR shall credit
the excess against the next installment(s) of Additional Operating Expense Rent
due from LESSEE, or at the end of the Lease Term pay such excess to LESSEE when
delivering such statement to LESSEE.
LESSEE's Allocable Percentage for the purpose of this Lease is 9.73%;
provided however, for periods up to the Phase II Delivery Date, the Allocable
Percentage to be applied shall be 7.75%.
4. ADDITIONAL RENT (Tax Escalation). Commencing as of the Commencement
Date, LESSEE, in addition to the sums payable to LESSOR as Annual Base Rent as
determined in Section 2 hereof, and in addition to the sums payable to LESSOR as
determined in Section 3 hereof, shall also pay to LESSOR as additional rent,
LESSEE's Allocable Percentage of any increase in the real estate taxes levied
against the Building and the land on which it is situated, above such real
estate taxes for fiscal tax year 1997 whether such increase is caused by an
increase in the tax rate, an increase in assessed value, or a change in the
method of determining real estate taxes, ("Additional Tax Escalation Rent").
The base from which the amount of any increase in taxes shall be
determined from the rate and the assessment for fiscal tax year 1997, or, in the
event LESSOR seeks and its granted an abatement of taxes (administratively or by
appeal to the Appellate Tax Board and/or the courts) for FY 1997, the tax rate
and assessment as abated, whichever results in a lower base year amount. The
Additional Tax Escalation Rent shall be prorated if the Lease Term commences or
terminates (without breach) during any fiscal year, accordingly to the fraction
of the total days in such tax year that are included in the Lease Term.
Notwithstanding the foregoing, LESSOR shall be under no obligation to
file for any abatement of taxes for FY 1997 or any other fiscal year, and LESSEE
shall pay the entire amount of Additional Tax Escalation Rent for any fiscal tax
year as invoiced by LESSOR, receiving a rebate of such payments made by its
based on its Allocable Percentage of any abated real estate taxes only if an
abatement is sought and received by LESSOR for such fiscal tax year.
LESSEE shall make payment within thirty (30) days of written notice
from LESSOR that Additional Tax Escalation Rent sums are payable, which notice
shall be accompanied by a copy of the tax ▇▇▇▇.
5. SECURITY DEPOSIT. Upon execution hereof, LESSEE shall post with
LESSOR in the manner described below (and maintain at all times during the Lease
Term and any Extended Term as hereinafter defined), a Security Deposit in the
amount of Two Hundred Thousand ($200,000.00) Dollars, which shall be held as
security for LESSEE's performance as herein provided, subject to reductions
described below, with the balance to be returned to LESSEE at the end of this
Lease Term (as may be extended); said
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reductions and return of any balance subject to LESSEE's satisfactory compliance
with the terms and conditions hereof. The Security Deposit shall be posted at
the option of the LESSEE from time to time (but not changed as to form more
frequently than each Lease Year) as follows:
(a) Two Hundred Thousand ($200,000.00) Dollars by certified or bank
check (the "Cash Deposit"); or
(b) Two Hundred Thousand ($200,000.00) Dollars by irrevocable stand-by
Letter of Credit, drawn on Fleet Bank or another commercial bank having branches
in Massachusetts, reasonably acceptable to LESSOR, (the "Letter of Credit"). If
Lessee elects to post a Letter of Credit, the Letter of Credit shall: (i) name
LESSOR as beneficiary; (ii) be for a term equal to the Lease Term (or any
extended term, as and when appropriate); (iii) be cancelable only with a minimum
30 days prior notice to LESSOR; and (iv) substantially in the form attached
hereto as Exhibit G and in all respects in form and substance reasonably
satisfactory to LESSOR, which at LESSEE's election may provide therein for
automatic direct reduction on the basis of the schedule set forth in subsection
(c) below.
If LESSOR so draws upon the Letter of Credit or if LESSEE elects to
post the Cash Deposit, LESSOR shall deposit the Cash Deposit in a separate
account for such deposits, with no administrative costs or expenses thereof
passed on to LESSEE, but interest thereon to inure to the benefit of LESSOR. If
LESSEE has elected to post the Cash Deposit or LESSOR is holding any portion of
the Security Deposit in a form other than a Letter of Credit, and if LESSEE
thereafter delivers to LESSOR a Letter of Credit in the amount and otherwise
then conforming to the requirements of this Section 5, LESSOR shall promptly pay
over to LESSEE the entire balance of the Cash Deposit or such portion of the
Security Deposit being held by LESSOR, absent any uncured default under the
Lease. If LESSEE has elected to post the Letter of Credit and thereafter
delivers to LESSOR the Cash Deposit, LESSOR shall promptly return the original
Letter of Credit to LESSEE. If LESSEE defaults in the payment or performance of
its obligations under this Lease, and such default continues after any
applicable notice and the expiration of any applicable grace period, LESSOR
shall have the right to draw upon and apply the Security Deposit to the extent
necessary to cure such default. Within ten (10) days after the expiration of the
Lease Term, as it may be extended, LESSOR shall give written notice to LESSEE of
any defaults by LESSEE in the payment or performance of its obligations under
this Lease. Within thirty (30) days after the expiration of the Lease Term, as
it may be extended, LESSOR shall return the Security Deposit to LESSEE, less
such amounts necessary to cure any then outstanding defaults claimed in the
notice to LESSEE. If LESSEE thereafter within a reasonable time under the
circumstances, cures said default, the Security Deposit shall be released to
LESSEE.
(c) Provided there is not then any material default by LESSEE in the
payment or performance of its obligations under this Lease which continues after
notice and the
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expiration of the applicable cure period, LESSEE at LESSEE's option may reduce
the Security Deposit according to the following schedule:
Amount of Reduction Balance
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End of Lease Year 1 $35,000.00 $165,000.00
End of Lease Year 2 $35,000.00 $130,000.00
End of Lease Year 3 $35,000.00 $ 95,000.00
End of Lease Year 4 $35,000.00 $ 60,000.00
End of Lease Year 5 N/A $ 60,000.00
6. USE OF PREMISES. LESSEE shall use the Lease Premises for general
office, research and laboratory space only, which uses LESSOR warrants and
represents are currently allowed under local zoning regulations (subject to
compliance with federal, state and municipal safety, healthy, building, and
sanitary codes and submission of confirming plans and specifications suitable
for issuance of a building permit from the City of Cambridge and an appropriate
occupancy permit upon completion of construction). LESSEE will use the Leased
Premises in a careful, and safe and proper manner and will not do or permit any
act or thing in the Leased Premises or do any act or thing in or affecting the
Common Areas which is contrary to any legal or insurance requirement referred to
in Section 17 hereof or which might impair the value of the Leased Premises or
the Building or any part thereof or which constitutes a risk to the safety,
health or well-being of other tenants in the Building or on the site, or creates
a public or private nuisance or waste.
7. UTILITIES. LESSOR shall provide at LESSOR's expense the building
standard facilities for heat, ventilation, and air conditioning for the Leased
Premises, and the common areas and facilities which LESSEE enjoys the right to
use, as required for comfortable occupancy, during 8 AM to 6 PM each weekday,
other than national or state holidays (herein "Normal Business Hours"). Any
change in such hours by LESSOR for the Building generally shall inure as well to
the benefit of the LESSEE. LESSOR shall provide electrical connections to the
Leased Premises for general office, research, and laboratory purposes, pursuant
to its build-out obligations set forth on Exhibit C hereto. If any operations or
activities in the Leased Premises use electricity in excess of amounts
customarily required for office purposes, LESSOR, in its discretion and at its
expense, may install submeters to measure such usage separately. Notwithstanding
any separate direct metering or general allocation, LESSEE shall pay all such
charges for electricity used on the Leased Premises as it may be separately
metered, or absent separate meters to the whole or part of the Leased Premises
(for whatever reason) based on tenant's Allocable Percentage of the total
electric ▇▇▇▇, whichever or both as may be applicable, at the determination of
the LESSOR. LESSOR shall determine said electrical charges in a uniform and
non-discriminatory manner relative to other lessees in the Building similarly
situated; and LESSEE shall pay its proportional share of said charges relative
to all occupied space which is not billed to tenants on a separately metered
basis. All such charges shall be based on the rates at which LESSOR is charged
for electricity supplied to
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the Building by the utility company. LESSOR shall maintain an average
temperature in the Building between 60 degrees Fahrenheit and 80 degrees
Fahrenheit at all times and an average temperature in the Leased Premises
generally between 68 degrees Fahrenheit and 76 degrees Fahrenheit during Normal
Business Hours. LESSOR shall make available heat, ventilation, and
air-conditioning as may be requested by LESSEE for the Leased Premises during
hours other than Normal Business Hours ("Overtime HVAC"), and (subject to
increase by the same percentage amount by which the standard electric rates are
increased from time to time by the utility company), as billed by LESSOR and to
be paid by LESSEE within thirty (30) days of said invoice. LESSEE shall give
LESSOR 24 hours prior notice of any requirements for specialized overtime
heating and air conditioning. LESSOR shall not be liable to LESSEE for any
interruption, interference, damage or loss to LESSEE's business, research or
experimentation occasioned as a result of any failure or interruption in the
heating, ventilation, air conditioning, or electrical services or other
utilities servicing the Building or the Leased Premises; unless caused by the
willful misconduct or negligence of LESSOR; in which case all installments of
Annual Base Rent and Additional Rent shall be abated based on the amount of
space within the Leased premises which is not available to LESSEE for its
business activities, if the failure or interruption continues for more than
three (3) days after notice to LESSOR; and in which case LESSEE shall have a
right to terminate this Lease if said failure resulting from LESSOR's willful
misconduct or negligence continues for more than sixty (60) days after notice to
LESSOR). No plumbing or electrical work of any type shall be done without
LESSOR's approval which approval shall not be unreasonably withheld or delayed
and the appropriate municipal permit and inspector's approval. Hot and cold
water for domestic type sanitary purposes (only) shall be supplied by LESSOR at
LESSOR's expense. LESSOR shall also supply working connections for non-potable
laboratory water and water for other particularized uses in the Demised
Premises; usage to be separately metered and paid for by LESSEE; and all charges
for such separately metered water used by LESSEE to be based on the rate at
which water/sewer charges are billed to the Building by the City of Cambridge.
8. COMPLIANCE WITH LAWS. LESSEE acknowledges that no trade, occupation,
or activity shall be conducted in the Leased Premises or use made thereof which
will be unlawful, noisy or offensive, or contrary to any federal or state law or
administrative regulations, or any municipal ordinance or regulations in force
at any time in Cambridge. LESSEE shall keep all employees working in the Leased
Premises covered with Worker's Compensation Insurance, as applicable. LESSEE
shall be responsible for complying with the Occupational Safety and Health Act
of 1970 and any amendments thereto, in connection with LESSEE's use of the
Leased Premises. LESSEE shall strictly adhere to any and all federal, state, and
municipal laws, ordinances, and regulations governing LESSEE's laboratory
scientific experimentation. LESSEE shall be solely responsible for procuring and
complying at all times with any and all necessary permits directly relating or
incident to: the conduct of its office and research activities on the Premises;
its scientific experimentation; and LESSEE's transportation, storage, handling,
use and disposal of any low level radioactive or bacteriological or pathological
substances or organisms or other hazardous wastes or environmentally dangerous
substances or
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materials to, from or at the Leased Premises. LESSEE shall immediately give
notice to LESSOR of any warnings or violations relative to the above received
from any federal, state, or municipal agency or by any court of law, and shall
immediately begin and diligently proceed to cure the conditions causing any such
violations; and LESSOR shall permit LESSEE to cure said harm or hazard prior to
any active intervention by LESSOR (except where such intervention is
necessitated by the emergency nature or the harm or hazard; or where the harm or
hazard impairs the value of the Building, (directly or as collateral on any
debt); interferes with any other tenant's rights; or is required by any
governmental agency or authority.
LESSEE shall fully indemnify and hold harmless in al respects LESSOR
from any and all claims, demands, losses, liabilities, and damages (including
all necessary and reasonable expenses for contractors, consultants,
environmental engineers, attorneys, and other professionals utilized by LESSOR
to evaluate and remediate any hazard or harm which LESSEE has failed to cure
after written notice from LESSOR; and further including any and all fines or
fees assessed by any governmental agency relative to any hazard or harm to the
extent directly arising from the conduct of LESSEE's research on the Leased
Premises (especially relating to research involving hazardous substances),)
resulting from LESSEE's obligations and responsibilities with respect to
compliance with environmental laws and regulations and LESSEE'S obligations to
cure, as set forth above and herein, except for any claims, demands, losses,
liabilities and damages resulting from the acts or negligence of LESSOR or its
agents or employees or independent contractors.
LESSOR hereby represents and warrants to LESSEE that the Building and
its heating, ventilation, air conditioning, plumbing, electrical, life safety
and other mechanical systems and equipment comply with all applicable federal
state and municipal laws, ordinances, and regulations. LESSOR shall maintain the
Building and such systems and equipment in compliance with all such laws,
ordinances and regulations, except to the extent governing the use of areas or
premises controlled by LESSEE or any other tenants in the Building.
LESSOR hereby represents and warrants to LESSEE that the Leased
Premises and the building of which they are a part, (inclusive of the Common
Areas) are, to the best of LESSOR's knowledge, in compliance with all applicable
building, sanitary and zoning laws, ordinances and regulations, (including
current applicable provisions of the Americans with Disabilities Act); and
LESSOR has not been cited with any current and outstanding violations thereof.
Additionally, LESSOR hereby represents and warrants relative to the Leased
Premises and the building of which they are a part, (inclusive of Common Areas)
that it has received no remediation notices pertaining to, nor are there any
outstanding violations to the best of its knowledge of, the provisions of G.L.
c.21E or the Massachusetts Contingency Plan; or any other environmental
remediation statutes or regulations.
9. FIRE AND OTHER INSURANCE. LESSEE shall not permit any use of the
Leased Premises which will make voidable, increase any premium, or decrease any
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insurance on the Building and property of which the Leased Premises are a part,
or on the contents of said Building, or which shall be contrary to any law,
regulation, or order from time to time established or issued by the local Fire
Department, or any similar body, or any restriction contained in any of LESSOR'S
insurance policies as to the Building and property; provided however, LESSOR
represents and warrants that LESSOR's insurance policies shall not contain any
restrictions or LESSEE's use of the Premises for office, research and laboratory
purposes and such use, per se,, shall not render such insurance voidable,
increase any premium, or decrease any of LESSOR's coverages. LESSEE shall, on
demand, reimburse LESSOR all extra insurance premiums caused by LESSEE's use of
the Leased Premises other than for the office, research and laboratory purposes
contemplated herein. LESSEE shall not vacate the Leased Premises or permit same
to be unoccupied for more than thirty (30) days other than during LESSEE's
customary non-business days or hours.
10. MAINTENANCE OBLIGATIONS. LESSOR shall perform all normal
maintenance, repairs and replacements necessary to keep in good condition and
working order (a) the roof, foundation, structural columns and other structural
elements of the Building, (b) the heating, ventilation, air conditioning,
plumbing, electrical, life safety and other mechanical systems and equipment
servicing the Building or the Common Areas, (c) the parking areas, (d) the
driveways and walkways necessary for access to the Building and parking areas,
(e) the entrances, lobbies, stairs, passenger elevators and corridors necessary
for access to the Leased Premises, (f) the loading docks and freight elevators
in the Building, (g) the lavatories on the fourth floor, and (h) the Common
Areas, generally. Notwithstanding the foregoing, any damage caused to the
building or any of the aforesaid components caused by the careless, malicious,
willful, or negligent acts of LESSEE; and chemical, water or corrosion damage on
or emanating from the Leased Premises from any source within the control of
LESSEE; shall be repaired by LESSOR and specifically and separately assessed as
against LESSEE. LESSEE agrees to maintain at its expense all other elements and
components to the Leased Premises in the same condition as they are at the
commencement of the Term or as they may be put in during the Term of this lease,
normal wear and tear and damage by fire or casualty or eminent domain only
excepted, and whenever necessary, to replace light bulbs (after the first six
months of the term), plate glass and other glass therein, acknowledging by
acceptance of the delivered Leased Premises as of the Phase I Delivery Date and
Phase II Delivery Date that the Leased Premises upon delivery are in good order
(except for punchlist items, which are to be completed by LESSOR as contemplated
in paragraph 33 hereof), and the light bulbs and glass whole. LESSEE will
properly control or vent all solvents, degreasers, and the like and shall not
cause the area surrounding the Leased Premises to be in anything other than a
neat and clean condition, depositing all waste in appropriate receptacles.
LESSEE shall not permit the Leased Premises to be overloaded, damaged, stripped
or defaced, suffer any waste of the Leased Premises. Any maintenance which is
the responsibility of LESSOR and which is necessitated by some specific aspect
of LESSEE's negligent or reckless use of the Leased Premises shall be at
LESSEE's expense, except to the extent LESSOR receives reimbursement for any
such costs or expenses from an insurer. All maintenance provided by LESSOR shall
be performed as reasonably required at
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LESSOR's reasonable discretion and except for emergencies, during LESSOR's
normal business hours. LESSEE may not keep any animals on the Leased Premises
without prior written notice to the approval from LESSOR in each instance, which
approval may be denied or conditioned in LESSOR's reasonable discretion. LESSEE
shall be solely responsible for maintenance and operation of any and all of its
systems installed by or for the LESSEE or servicing the Leased Premises
exclusively, and shall waive any and all claims against LESSOR for any damage,
impairment, or loss relative to these systems unless caused by the negligence or
willful misconduct of LESSOR, its agents, employees and independent contractors.
Specifically, LESSEE shall maintain, at its sole expense, and pay all charges
for electrical service (according to section 7 of this Lease) and use of, the
following: (a) LESSEE's customized "cold room" or "warm room" (if any) and all
equipment associated with its operation, and (b) additional HVAC system (to the
extent of the customization of the LESSOR's building standard HVAC system; (c)
backflow preventers (other than the Building's standard equipment incorporated
in the Building's general plumbing and life safety systems); (d) acid
neutralization chip tanks; and (e) any other specialized equipment or mechanical
systems serving the Leased Premises exclusively.
11. ALTERATIONS. LESSEE shall not make structural alterations or
additions of any kind to the Leased Premises, but may make nonstructural
alterations provided LESSOR consents thereto in writing, said consent not to be
unreasonably withheld or delayed. Notwithstanding the foregoing, LESSOR's
consent shall not be required for any non-structural alterations or additions to
the Leased Premises which (a) do not affect the structural elements of the
Building, or the Building's heating, ventilation, or air conditioning, plumbing,
mechanical, electrical, elevator, life safety or other common systems or Common
Areas of the Building, and (b) do not cost more than $10,000.00 in any single
instance. Plans and specifications shall be submitted by LESSEE to LESSOR in
each instance where consent is required, in advance of any proposed work, in
sufficient detail and scope to enable LESSOR to make a reasonable determination
thereon. All such allowed alterations shall be at LESSEE's expense and shall be
in quality at least equal to the present construction. If LESSOR performs any
services for LESSEE in connection with such alterations or otherwise, any
invoice therefore will be promptly paid. LESSEE shall not permit any mechanics
liens, or similar liens, to remain upon the Leased Premises 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, removed or
bonded without cost to LESSOR, within twenty (20) days after completion of the
work giving rise to such lien. LESSEE shall not permit any changes for labor or
materials secured by any such liens to remain unpaid for more than thirty (30)
days after receiving notice of such charges unless LESSEE protects LESSOR from
any such liens by bond or other assurances reasonably satisfactory to LESSOR.
Any alterations completed by LESSEE, including, without limitation, window
blinds or other window treatment, shall be building standard unless LESSOR
expressly agrees otherwise, which agreement shall not be unreasonably withheld
or delayed. LESSOR shall have the right at any time to change the arrangement of
parking areas, stairs, walkways or other common areas of the
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Building of which the Leased Premises are a part, provided such changes do not
interfere with LESSEE's use or access to such areas and facilities.
Notwithstanding the foregoing, prior to the commencement of the Term
hereof, and pursuant to Section 33, LESSOR shall, at its sole cost and expense,
deliver the Leased Premises "as is" but nevertheless such that they conform to
LESSOR'S standard Building specifications, except that LESSOR specifically
agrees that prior to its delivery of the Premises to the LESSEE, LESSOR shall at
its sole cost and expense: Repaint the Premises; repair/replace carpeting as and
where necessary based on extraordinary current wear; and prepare LESSOR's basic
and standard infrastructure for LESSEE's laboratory space, and otherwise to
construct and install the alterations contained within LESSOR's Work as set
forth more specifically in section 33 of this Lease. The space delivered to
LESSEE shall be as set forth on the space plan and specifications attached
hereto as Exhibit C. All laboratory equipment, (not specifically included in
LESSOR's Work as contemplated by paragraph 33 hereof), including but not limited
to hoods, vacuum pumps and RODI water system(s) shall be provided and installed
at LESSEE's sole cost and expense.
12. ASSIGNMENT, SUBLETTING. LESSEE covenants and agrees that neither
this Lease, nor the estate hereby granted, nor any interest therein will be
assigned, mortgaged, pledged, encumbered or otherwise transferred, and that
neither the Leased Premises, nor any part thereof, will be encumbered in any
manner by reason or by act or omission (where LESSEE has a legal duty to act) of
LESSEE, or used or occupied, or permitted to be used or occupied, by anyone
other than LESSEE, its servants, agents and employees, or for any use or purpose
other than as above stated, or be sublet, without in each case LESSOR's prior
written consent, which shall not be unreasonably withheld. Notwithstanding the
foregoing, LESSEE shall have the right, without the prior consent of the LESSOR,
to assign this Lease and to sublet any portion of the Leased Premises to any
person or entity (a) controlling, controlled by, or under common control with
LESSEE, (b) acquiring all or substantially all of the assets of the LESSEE, or
(c) with or into which LESSEE merges or consolidates; provided in each instance
the LESSEE shall remain at all times directly, primarily and severally liable
for the performance of all terms and conditions of this Lease, in conjunction
with any other such entity.
The grounds upon which LESSOR may reasonably withhold its consent are
as follows:
(i) The prospective assignee's or sublessee's intended use of the
Premises is not identical to the permitted uses set forth in the Lease; or,
(ii) The nature, character, class and standards of the prospective
assignee's or sublessee's business will not be consistent with those of other
lessees in the Building or will not conform to the mix of other lessees in the
Building at that time; or,
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(iii) The financial net worth, and reliability of the prospective
assignee or sublessee, including any additional written and direct personal or
corporate guarantees, is not in Landlord's reasonable judgment at least
equivalent to that of DynaGen, Inc. as measured at the point of execution of
this Lease; (provided however that if the proposed assignment or sublet occurs
during the Extended Term (i.e. after the original five (5) years), then the
financial net worth of the prospective assignee or sublessee shall be equivalent
to that of DynaGen, Inc. as measured at the point of execution of this Lease,
but said net worth standard to be adjusted by increasing by the cumulative
increases in the Consumer Price Index, All Items, All Urban, occurring from the
date of this Lease to the date of the proposed assignment or subletting). The
prospective assignee or sub-lessee must produce to LESSOR if available, a
verified and current audited financial statement prepared within the then past
three years, (or if non has been prepared by said prospective assignee within
the then past three years, a CPA certified current financial statement); and
such other reasonable documentation as is material in making such a
determination; or,
(iv) The operations of the prospective assignee or sub-lessee will
violate any exclusive or other rights given any other lessees in the Building;
or,
(v) The failure of LESSOR's mortgage lender(s) to consent.
LESSOR, in addition to Annual Base Rent and Additional Rent, shall be
entitled to the full amount of any and all sums assessed or collected by LESSEE
in whatever form, attributable to the assignment or sublease or other transfer
of LESSEE's interest in this Lease or the Leased Premises (except for a sublease
under clause (ii) below), which exceed said Annual Base Rent or Additional Rent
hereunder, (therein, "Rent ▇▇▇▇-Up"), after deduction of LESSEE's reasonable
costs and expenses to procure said assignment or sublet, including brokers' fees
and commissions, attorneys' fees, and any build-out costs (approved by Landlord
in advance, said approval not to be unreasonably withheld or delayed), which
costs and expenses shall in no event be deducted from any payments to LESSOR due
in the form of Annual Base Rent, Additional Operating Expense Rent, Additional
Tax Escalation Rent, or other sums payable to LESSOR under this Lease other than
the aforesaid excess amount on assignment or subletting.
Notwithstanding any LESSOR's consent to any assignment or subletting,
as contemplated above, or in any circumstances other than a LESSOR's recapture
of the entire premises as contemplated below, LESSEE shall remain primarily
liable to LESSOR for the payment of all Annual Base Rent and all other Rent
hereunder, and for the full performance of the covenants and conditions of this
Lease to be performed by LESSEE; and after a default by LESSEE in such payment
or performance which continues after any applicable notice and cure period,
LESSOR may collect all sums due as Annual Base Rent or other Rent directly from
the assignee or subtenant.
-14-
Notwithstanding the foregoing, in the event that LESSEE desires to
sublet any portion of the Leased Premises, then the following shall apply:
(i) if the proposed sublet is on the basis where a demising wall is to
be erected by LESSEE or the subtenant, separating their spaces in whole or in
part, pursuant to an agreement with a bona fide third party subtenant, at any
time during the sublet, then LESSOR shall be granted its Recapture Rights as set
forth below as the portion of the Leased Premises to be so sublet; or,
(ii) if the proposed sublet is on the basis where there will be no
demising wall erected, separating their spaces in whole or in part, and the
subtenant is reasonably expected to utilize up to (but not more than) fifty
(50%) percent of the facilities comprising the Leased Premises, then LESSOR's
Recapture Rights shall not apply; or,
(iii) if the proposed sublet is on the basis where there will be no
demising wall erected, separating their spaces in whole or in part, and the
subtenant is reasonably expected to utilize more than fifty (50%) percent of the
facilities comprising the Leased Premises, then LESSOR's Recapture rights shall
apply as to the entire Leased Premises.
In all instances set forth above where reference is made to LESSOR's
Recapture Rights, those rights shall consist of the following: LESSEE, in each
instance where Landlord's Recapture Rights apply, shall notify the LESSOR in
writing, stating its intention to sublet and the target date of the proposed
sublet (which shall not be less than one hundred twenty (120) days from the date
of said notice to LESSOR). LESSOR shall have a period of ninety (90) days from
the date it receives such notice to exercise an election to recapture that
portion of the Leased Premises to be sublet, in LESSOR's sole discretion and
without any obligation to so elect, whatsoever, notwithstanding the
circumstances, and without prejudice to or waiver of any of LESSOR's rights or
LESSEE's continuing obligations hereunder. LESSEE shall provide LESSOR with all
material information relative to LESSOR making an informed decision concerning
said sublet, immediately upon LESSOR's request. If LESSOR elects to recapture
the Leased Premises (or applicable portion thereof), it shall send written
notice thereof to LESSEE; and LESSEE shall be irrevocably bound to surrender and
vacate the Leased Premises (or applicable portion thereof) as if the Lease Term
had expired on the date set forth in the LESSEE's initial notice to LESSOR; and
provided LESSEE vacates and surrenders on said date, without being in default of
any provision hereof as of said date, this Lease shall be null and void and
without recourse to either party hereto (but for terms and conditions
contemplated herein to survive termination of this Lease). LESSEE shall not be
entitled to any payments, commissions, credits, offsets, or any kind or nature
arising from said sublet, nor shall any individual or entity acting by, through,
or under LESSEE be so entitled. Once an election to recapture is made by LESSOR,
LESSEE shall be subject to the penalties for holding over set forth in this
Lease, if it fails to vacate and surrender the Leased Premises (or applicable
portion thereof) by the date stated in the notice, or if it fails to discharge
(or cause its lenders or others with which LESSEE has dealt to discharge) any
and all liens or other encumbrances, notices, or restrictions on its leasehold
-15-
or contractual interest in and to the Leased Premises as of said date. Nothing
in this section or paragraph shall require LESSOR to make an election to
recapture the Leased Premises (or applicable portion thereof), and nothing in
the aforesaid process shall relieve LESSEE of its inability under this Lease
should LESSOR elect not to take back the Leased Premises (or applicable portion
thereof). Notwithstanding the foregoing, LESSEE shall have ten (10) days from
LESSOR's notice of its election to recapture, to withdraw its proposal to sublet
in writing delivered to LESSOR, whereupon the LESSOR's election shall be deemed
rescinded and LESSEE shall remain in the Leased Premises, without sublet. LESSEE
may only exercise this withdrawal right a maximum of once within each Lease
Year. Should LESSOR elect not to recapture the Leased Premises, then LESSEE
shall have a period of one hundred twenty (120) days from the date of LESSOR's
notice of such election (or if LESSOR delivers no notice of any election, then
one hundred twenty (120) days from the expiration of LESSOR's ninety (90) day
response period) to execute its sublease agreement and commence the subtenancy,
without the necessity for any additional notices to LESSOR under this section.
New notice by LESSEE to LESSOR shall be required after expiration of said
one-hundred twenty (120) day period. Time is of the essence in all notices and
elections made hereunder.
13. SUBORDINATION. This Lease shall be subject and subordinate to any
and all instruments of record, mortgages, and other instruments in the nature of
a mortgage, extant or coming into existence at any time hereafter, and LESSEE
shall, when requested, promptly within fifteen (15) days of request, execute and
deliver such written instruments (on LESSOR's lender's form) as shall be
necessary to show the subordination of this Lease to said instruments of record,
mortgages, or other such instruments in the nature of a mortgage. LESSOR, prior
to the Phase I Delivery Date and within 21 days of any refinancing or additional
financing of the building and/or property, shall provide LESSEE with a
Non-Disturbance, Attornment and Subordination Agreement, recognizing the rights
of LESSEE under this Lease. LESSEE acknowledges that an agreement substantially
in the form attached hereto as Exhibit G, shall satisfy the foregoing
requirements.
14. LESSOR'S ACCESS. LESSOR or agents of LESSOR may at reasonable times
and upon advance reasonable notice (except in emergency situations) enter to
view the Leased Premises and may remove any signs not approved and affixed as
herein provided, and may make repairs and alterations as LESSOR should elect to
do and repairs which LESSEE is required but has failed to do (but only after
notice and an opportunity to repair being provided to LESSEE within the
applicable cure period under this Lease), and may show the Leased Premises to
prospective mortgagees, appraisers, brokers, prospective purchasers, and within
twelve months of the expiration of the Term or on any default other prospective
tenants. Additionally, to the extent necessary to service other portions the
Premises or the Common Areas or other tenant spaces in the Building; LESSOR may
add, relocate, or maintain a chase, pipes, conduits, or ducts, within the
Premises provided the aforesaid do not materially interfere with LESSEE's use of
the Premises or its aesthetics. Any entry by LESSOR, its agents, employees or
independent contractors onto the Premises under this section 14 shall be done in
such manner as to
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minimally interfere with the business conducted thereon by LESSEE, and
undertaken with reasonable steps to protect LESSEE's property.
15. SNOW REMOVAL. LESSOR, at its sole expense, shall keep the walkways,
sidewalks, entry ways and parking areas reasonably clear of snow and ice.
Notwithstanding the foregoing, however, LESSEE shall hold LESSOR harmless from
any and all claims by LESSEE's agents, representatives, employees or business
invitees for damage or personal injury resulting in any way from snow or ice on
any area servicing the Building, unless such claims arise from the negligence or
willful misconduct of LESSOR or its agents, employees or independent
contractors.
16. ACCESS AND PARKING. LESSEE shall be granted the right, at current
rates (which may be increased form time to time to reflect market increases, to
park twelve (12) cars in the building's on-site indoor parking lot or facility
in single or tandem spaces, or on a valet basis, which LESSOR in its sole
discretion shall designate from time to time; (at all times hereunder LESSEE to
be entitled to four single spaces from among those twelve). LESSOR initially
designates an appropriate proportion of the same single and tandem area as is
used by the lessee presently vacating the Building, as the LESSEE's initial
parking area. The initial parking rate therefore shall be $100.00 per month, per
car, which monthly rate shall be subject to and reflective of periodic market
changes. Additionally, LESSEE shall be entitled to twelve (12) additional
parking spaces in the garage (not owned by LESSOR) at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, so long as they are available to LESSOR during the Term of this
Lease, at an initial parking rate of $90.00 per month, per car, which monthly
rate shall be subject to and reflective of periodic market changes and upon
thirty (30) days prior written notice to LESSEE. Said garage, lot, or facility,
as the case may be, plus any stairs, walkways or other means of ingress or
egress controlled by the Lessor shall not in any case be considered extensions
on the Leased Premises. LESSEE will not obstruct in any manner any portion of
the Building or the walkways or approaches to the Building, and will conform to
all reasonable and non-discriminatory rules now or hereafter made by LESSOR for
parking, (but which rules shall in no event limit LESSEE's right to its twelve
(12) indoor parking spaces), and for the access and egress, security, care, use,
or alteration of the Building, its facilities and approaches. LESSEE further
warrants that LESSEE will not permit any employee or visitor to violate this or
any other covenant or obligation of LESSEE. No vehicles shall be stored or left
in any parking area for more than three nights without LESSOR's written
approval. Unregistered or disabled vehicles, or storage trailers of any type,
may not be parked overnight any time. LESSEE agrees to assume all expense and
risk for the towing of any misparked vehicle belonging to LESSEE or LESSEE's
agents, employees, business invitees, or callers, at any time. For the purpose
of this section the term "space" shall mean general access for one motor
vehicle. All vehicles shall be parked and left on the premises at their owners'
sole risk and LESSOR shall not be liable for any damages caused to said vehicles
while they are parked or left on the premises.
Additionally, both parties acknowledging that the garage is currently
full, LESSOR shall make reasonable efforts to provide an additional number of
parking spaces within the
-17-
Building's garage, as such spaces may become available in the future; however,
LESSOR shall not be obligated to violate any other exclusive rights granted in
existing or future leases.
17. LESSEE'S AND LESSOR'S LIABILITY INSURANCE. LESSEE shall be solely
responsible as between LESSOR and LESSEE for deaths or personal injuries to all
persons whomsoever caused or occurring in or on the Leased Premises from
whatever cause arising, (unless caused by the negligent acts or omissions or
willful misconduct of LESSOR or its employees, agents or independent
contractors), and damage to property to whomsoever belonging caused or occurring
in or on the Leased Premises to the extent arising out of the use, control,
condition or occupation of the Leased Premises by LESSEE (except to the extent
such damage arises out of the negligence or willful misconduct of LESSOR or its
employees, agents, or independent contractors); and LESSEE agrees to indemnify
and save harmless LESSOR from any and all liability, reasonable expenses,
damage, causes of action, suits, claims or judgments caused by any such deaths,
personal injuries or damages to property, except to extent caused by the
negligence or willful misconduct of LESSOR, its employees, agents or independent
contractors. During the Lease Term LESSEE will secure and carry at its own
expense a comprehensive general liability policy insuring LESSEE against any
claims based on bodily injury (including death) arising out of the condition of
the Leased Premises or their use by LESSEE, such policy to insure LESSEE against
any claim up to One Million ($1,000,000.) Dollars for personal injury or damage
to property. LESSOR and its lenders (of which LESSEE is given written notice)
shall be included in such policy as additional insureds, as their interests may
appear, from time to time. LESSEE will promptly file with LESSOR certificates
showing that such insurance is in force, and thereafter will file renewal
certificates prior to the expiration of any such policies. All such insurance
certificates shall provide that such policies shall not be canceled without at
least thirty (30) days prior written notice to each insured named therein.
During the Lease Term LESSOR shall secure and maintain a policy of
commercial general liability insurance covering LESSOR on an occurrence basis in
an amount not less than $1,000,000.00 for claims based on bodily injury
(including death), personal injury, and property damage relating to the Building
and the property on which the building is located; and a policy of insurance
covering the building and other improvements on the property on which the
building is located for direct risk of physical loss on an occurrence basis, in
an amount equal to the replacement costs of the Building and such other
improvements (exclusive of tenant improvements owned by such tenants) in at
least the minimums required by LESSOR's lendors.
LESSOR and LESSEE covenant that with respect to any insurance policy
required hereunder to be carried by either, such insurance shall provide for the
waiver by the insurance carrier of any subrogation rights against the other;
where such waiver of subrogation rights does not require the payment of an
additional premium or, if an additional premium is required, the other party
pays such premium within a reasonable time after written notice thereof if it
elects to have the benefits of such protection.
-18-
18. FIRE, CASUALTY, EMINENT DOMAIN. Should a substantial portion of the
Leased Premises, or of the property of which they are a part, be substantially
damaged by fire or other casualty, or be taken by eminent domain, LESSOR may
elect to terminate this Lease by written notice to LESSEE within ninety (90)
days after such damage occurs, provided LESSOR terminates the leases for other
tenants in the Building, similarly affected by such damage. When such fire,
casualty, or taking renders the Leased Premises substantially unsuitable for
their intended use and no termination has been elected by LESSOR, a just and
proportionate abatement of rent shall be made from the date of such damage until
repairs have been substantially completed, and LESSEE may elect to terminate
this Lease if: (a) LESSOR fails to give written notice within ninety (90) days
of intention to restore Leased Premises, or (b) LESSOR fails to restore the
Leased Premises to a condition substantially suitable for their intended use
within one hundred eighty (180) days of said fire, casualty or taking. LESSOR
reserves all rights for all damages or injury to the Leased Premises for any
taking by eminent domain; except for damage to LESSEE's moveable fixtures,
property or equipment, or moving expenses, which are specifically allocated to
LESSEE by the taking authority or arbitrators.
19. BROKERAGE. LESSEE and LESSOR each warrants and represents to the
other that they have dealt with no broker or third person with respect to this
Lease or the Leased Premises or Building entitled to a commission as a result of
this Lease other than The Abbey Corp and Fallen ▇▇▇▇▇ & ▇'▇▇▇▇▇▇, whose fee
shall be paid by LESSOR; and LESSOR and LESSEE each agree to indemnify and hold
harmless the other from any fees, expenses, or damages arising from breach of
the above warranty.
20. SIGNS. LESSEE shall have the right to have its name included on any
central directory maintained by LESSOR listing the building's other tenants.
LESSOR authorizes LESSEE, if desired, to display one sign (which may bear
LESSEE's logo) on LESSEE's office entrance door consistent with similar signs of
other tenants. LESSEE shall obtain the written consent of LESSOR before erecting
any sign on the Leased Premises, which consent may be conditioned on compliance
with LESSOR's requests as to size, wording, and location of such signs, but
which shall not be unreasonably withheld or delayed.
21. DEFAULT, BANKRUPTCY AND ACCELERATION OF RENT. In the event that:
(a) LESSEE shall default in the payment of the security deposit or any
installment of Annual Base Rent or any Additional Operating Expense Rent or
Additional Tax Escalation Rent or other Rent or other payments due LESSOR
hereunder, and such default shall continue for ten (10) days after written
notice thereof; or (b) LESSEE shall default in the observance or performance of
any other of LESSEE's covenants, agreements, or obligations hereunder and such
default shall not be corrected within thirty (30) days after written notice
thereof, or such longer period as is necessary to effectuate a cure provided
LESSEE promptly proceeds to cure and diligently pursues such resolution to
completion, but not longer than ninety (90) days; (c) LESSEE shall be declared
bankrupt or insolvent according to law, or if any voluntary or involuntary
petition
-19-
for bankruptcy is filed against LESSEE and not discharged within 60 days from
filing; or if any assignment shall be made of LESSEE's property for the benefit
of creditors; then, while such default continues, and without demand or further
notice, LESSOR shall have the right to re-enter and take complete possession of
the Leased Premises, to declare the term of this Lease ended, and to remove
LESSEE's effects, without being guilty of any manner of trespass and without
prejudice to any remedies which might be otherwise used for arrears of rent or
other default or breach of covenant. LESSEE shall indemnify LESSOR against all
loss of Annual Base Rent, Additional Operating Expense Rent, and Additional Tax
Escalation Rent and all other payments which LESSOR may incur by reason of such
termination during the remainder of the Lease Term, it being expressly
understood that LESSOR shall use reasonable efforts to relet the Leased Premises
and collect all rents from such reletting. If 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
one of the provisions in any section of this Lease, LESSOR, without being under
any obligation to do so and without thereby waiving such default, may after
notice to LESSEE and the expiration of any applicable cure period, remedy same
for the account and at the expense of LESSEE (including but not limited to
application of any or all of the Security Deposit held by LESSOR in accordance
with section 5 of this Lease). If LESSOR pays 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 incurred, with interest at the rate
of fifteen percent per annum and costs, shall be paid to LESSOR by LESSEE as
additional rent. Upon default of this Lease by LESSEE, and because the payment
of Rent in monthly installments is for the sole convenience of LESSEE, the
entire balance of Rent which would accrue hereunder shall at the option of
LESSOR become immediately due and payable. LESSOR hereby acknowledges its
obligation to mitigate its damages in the event of a default by LESSEE.
Notwithstanding the foregoing, LESSEE agrees to pay reasonable attorney's fees
incurred by LESSOR in enforcing any or all obligations of LESSEE under this
Lease at any time.
22. NOTICE. Any notice from LESSOR to LESSEE relating to the Leased
Premises or to the occupancy thereof shall be deemed duly served if left at the
Leased Premises addressed to LESSEE, or if sent to the Leased Premises by
certified mail, return receipt requested, postage prepaid, addressed to LESSEE;
with a copy to ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇. Any notice from LESSEE to LESSOR relating to the Leased
Premises or to the occupancy thereof shall be deemed duly served if delivered to
LESSOR by certified mail, return receipt requested, postage prepaid, addressed
to: The Abbey Corp., ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or at
LESSOR's last address designated by written notice to LESSEE. Notice shall be
deemed given at the earlier of the date of actual delivery or if by certified
mail, three (3) business days after posting with the U.S. Postal Service. Time
is of the essence in delivery of any notice, and the performance of any
obligations relating thereto.
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23. OCCUPANCY. In the event that LESSEE remains on the Premises after
the agreed termination date of this Lease without the written permission of
LESSOR, then all other terms of this Lease shall continue to apply, except that
LESSEE shall be liable to LESSOR for any loss, damages or expenses incurred by
LESSOR, and all Annual Base Rent and other Rent shall be due in full monthly
installments at a rate of three hundred (300%) percent of that which would
otherwise be due under this lease, it being understood between the parties that
such extended occupancy as a tenant at sufferance is solely for the benefit and
convenience of LESSEE.
24. RULES AND REGULATIONS. LESSEE and LESSEE's servants, employees,
agents, invitees and licensees shall observe faithfully and comply strictly with
such reasonable and non-discriminatory rules and regulations governing the use
of the Building and site and all common areas as LESSOR may from time to time,
adopt, provided LESSEE receives reasonable advance notice of such rules and
regulations and such rules and regulations do not conflict with the express
provisions of this Lease or unreasonably interfere with LESSEE's use of the
Leased Premises for its permitted purposes hereunder.
25. OUTSIDE AREA. No goods or things of any type or description shall
be held or stored outside the Leased Premises at any time without the express
written approval of LESSOR, except bicycles which shall be stored only in the
bicycle rack to be provided by LESSOR.
26. ENVIRONMENT. LESSEE will so conduct and operate the Leased Premises
as not to interfere in any way with the use and enjoyment of other portions of
the same or neighboring buildings by others, by reason of offensive odors,
smells, noise, accumulation of garbage or trash, vermin or other pests or
otherwise and will, at its expense, employ a professional pest control service
if necessary as a result of LESSEE's operations. LESSEE agrees to maintain
efficient and effective device for preventing damage to heating equipment from
harmful solvents, degreasers, cutting oils, and the like, which may be used
within the Leased Premises. No hazardous wastes, radioactive materials or
chemical or harmful biological agents or materials of any sort shall be stored
or allowed to remain within the Leased Premises at any time, except after
written notice to LESSOR, with LESSEE providing a general list of all such
substances inclusive of approximate quantities and "MSDS" sheets; LESSEE to
comply at all times with all applicable federal, state, and local laws,
ordinances, regulations and administrative orders governing the use, handling,
storage, transportation and disposal of all such materials, as well as LESSOR's
rules and regulations governing the handling, storage, transportation and
disposal of all such materials within the Building and Common Areas, said
LESSOR's rules and regulations to be administered in a uniform and
non-discriminatory manner as to all tenants similarly situated.
Prior to vacating the Leased Premises at the end of the Term (or any
applicable extension), or sooner in the event of a default hereunder, LESSEE at
its sole cost and expense shall provide LESSOR and Owner with an environmental
audit by a qualified
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environmental engineering firm satisfactory to LESSOR. The aforesaid
environmental audits shall duly recognize the substances and materials used by
the LESSEE in its laboratory and office operations on the Leased Premises during
the Lease Term (the "Known Substances"), and shall confirm to LESSOR's
reasonable satisfaction that the Leased Premises are free from any and all
contaminants, pollutants, radioactive materials, hazardous wastes or materials,
bacteriological agents or organisms which would render the Leased Premises in
violation of ▇.▇. ▇. 21E, CERCLA, or ▇▇▇▇, or any regulations of the NRC, as
they may be amended, or supplemented by administrative regulations, from time to
time; arising from and based on the Known Substances. LESSEE shall be
responsible to LESSOR (and any Lenders to the Building) for any and all
environmental hazards or conditions which preclude or condition the foregoing
confirmation due from LESSEE as contemplated above, to the extent said hazards
or conditions are reasonably attributable to the Known Substances and LESSEE's
activities and use of their space.
27. RESPONSIBILITY. LESSOR shall not be held liable to anyone for loss
or damage caused in any way by the use, leakage or escape of water or for
cessation of any service rendered customarily to said Leased Premises or
buildings or agreed to by the terms of this Lease, due to any accident, to the
making of repairs, alterations or improvements, to labor difficulties, weather
conditions, or mechanical breakdowns, to trouble or scarcity in obtaining fuel,
electricity, service or supplies from the sources from which they are usually
obtained for said building, or to any cause beyond the LESSOR's reasonable
immediate control, except to the extent that such loss or damage is caused by
the negligence or willful misconduct of LESSOR or its agents, employees, or
independent contractors.
28. SURRENDER. LESSEE shall at the expiration or other termination of
this Lease remove all of LESSEE's personal property, goods and effects from the
Leased Premises. LESSEE shall deliver to LESSOR the Leased Premises and all
keys, locks, thereto, and other fixtures and equipment connected therewith
(excluding LESSEE's trade fixtures and equipment) and all alterations, additions
and improvements made to or upon the Leased Premises, including but not limited
to any plumbing and plumbing fixtures, air conditioning equipment and ductwork
of any type, exhaust fans or heaters, water coolers, burglar alarms, telephone
wiring, telephone equipment, wooden or metal shelving which has been bolted,
welded or otherwise attached to any concrete or steel member of the Building,
compressors, air or gas distribution piping, and all electrical work, including
but not limited to lighting fixtures of any type, wiring, conduit, EMT,
distribution panels, bus ducts, raceways, outlets and disconnects to the extent
that LESSOR constructs or installs such fixtures, alterations, additions and
improvements at LESSOR's expense. Notwithstanding any contrary provision of this
Lease, at the end of the Lease Term, and absent any default, LESSEE shall have
the right to remove from the Leased Premises its trade fixtures and personal
property and any fixtures, alterations, additions and improvements installed by
LESSEE or at LESSEE's cost and expense subsequent to the Commencement Date,
including without limitation the fixtures and equipment listed on Exhibit F
hereto, provided that LESSEE shall repair any damage to the Leased Premises
caused thereby. LESSEE shall deliver the Leased Premises in as good condition as
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existed on the Commencement Date, reasonable wear and tear and damage by fire,
eminent domain, or other casualty only excepted. In the event of LESSEE's
failure to remove any of LESSEE's property from the premises, LESSOR is hereby
authorized, without liability to LESSEE for loss or damages thereto and at the
sole risk of LESSEE to remove and store any such property at LESSEE's expense,
or to retain same under LESSOR's control or to sell at public or private sale,
any or all of the property not so removed and to apply the net proceeds of such
sale to the payment of any sum due hereunder, or to destroy such property which
shall be conclusively deemed to have been abandoned.
29. QUIET ENJOYMENT. So long as LESSEE keeps, observes and performs
each of the terms herein contained on the part of LESSEE to be kept, observed
and performed, LESSEE shall quietly enjoy the Leased Premises without hindrance
or molestation by LESSOR, or any party claiming any interest in the Building
under or through the LESSOR.
30. LESSOR'S SERVICES. LESSOR will provide elevator facilities serving
the Leased Premises at all times, subject to reasonable security regulations for
use at times other than Normal Business Hours. LESSOR shall, at LESSOR's
expense, furnish LESSEE such cleaning service as is described in Exhibit D
hereto. Except as set forth on Exhibit D, LESSOR shall not be responsible for
cleaning LESSEE's research laboratories.
31. GENERAL. The invalidity or unenforceability of any provision of
this Lease shall not affect or render invalid or unenforceable any other
provision hereof. The obligations of this Lease shall run with the land, and
this Lease shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, except that LESSOR shall be liable
only for obligations during LESSOR's ownership of the Building or Landlord's
interest under this Lease, occurring as of the beginning of the term of this
Lease, or thereafter while LESSOR of the entire Property. The obligations of
LESSOR shall not be binding upon any director, officer, shareholder, partner,
trustee or beneficiary of LESSOR. Notwithstanding the definition herein of
"Commencement Date," "Termination Date," or "Term," or LESSOR's obligations to
deliver the Premises, this Lease shall be binding and enforceable as against the
parties hereto as of the date of its execution.
32. WAIVERS, ETC. No consent or waiver, express or implied, by LESSOR
or LESSEE, to or of any other breach of the other party of any covenant,
condition or duty of that party shall be construed as a consent or waiver to or
of any other breach of the same or any other covenant, condition or duty. If
LESSEE is several persons or a partnership, LESSEE's obligations are joint or
partnership and also several. Unless repugnant to the context, "LESSOR" and
"LESSEE" mean the person or persons, natural or corporate, named above as LESSOR
and as LESSEE respectively, and their respective heirs, executors,
administrators, successors and assigns.
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33. LESSOR'S OBLIGATION TO "BUILD OUT" AND DELIVER LEASED PREMISES. The
Leased Premises shall be delivered in an "as is" condition without
representation or warranty as to the suitability of the Leased Premises for
LESSEE's particular uses and activities (but for the representations and
warranties set forth in paragraph 8 hereof); except that the LESSOR, at LESSOR's
expense, shall: Repaint the Premises; repair/replace carpeting as and where
necessary based on its current wear to put the carpeting in the Leased Premises
in good condition; prepare LESSOR's basic and standard infrastructure for
LESSEE's laboratory space; and provide lighting and electrical distribution in
the Premises in accordance with the building standards; as further set forth in
paragraph 11 hereof; and otherwise construct and install the alterations,
improvements, fixtures and equipment shown and or described on Exhibit C (in its
component parts, inclusive of "Addendum to Exhibit C"), attached to this Lease
(collectively, the "LESSOR's Work"). Any specialized construction required to
satisfy LESSEE's laboratory needs shall be LESSEE's sole responsibility (and may
be provided by LESSOR based on separate agreement as to cost and timing), (See,
separate schedule of additional costs dated June 18, 1997 and attached at end of
Exhibit C).
LESSOR shall perform its LESSOR's Work on the Premises, and shall
deliver said Premises subsequent to completion of LESSOR's Work, in two phases:
"Phase I" shall consist of LESSOR's Work on the portions of the Premises
dedicated to office and general use (i.e., the "Office Space" consisting of
approximately 9,759 square feet as shown on Exhibit A - 1 attached to this
Lease) and other portions of the Building common areas needed for LESSEE to use
and occupy the Office Space; and "Phase II" shall consist of LESSOR's Work other
than as included in Phase I (i.e., approximately 2,503 square feet mostly
dedicated to laboratory use). Upon substantial completion of LESSOR's Work in
Phase I, it shall notify LESSEE in writing, in the form attached hereto as
Exhibit E - 1, of the completion of said LESSOR's Work and the delivery of that
portion of the Premises to LESSEE. The date of completion of LESSOR's Work as
stated on said notice to LESSEE is referred to as the "Phase I Delivery Date."
Upon substantial completion of LESSOR's Work in Phase II, it shall notify LESSEE
in writing, in the form attached hereto as Exhibit E - 2, of the completion of
said LESSOR's Work and the delivery of that portion of the Premises to LESSEE.
The date of completion of LESSOR's Work as stated on said notice to LESSEE is
referred to as the "Phase II Delivery Date."
LESSOR shall deliver its Phase I Delivery Date notice upon its
completion of LESSOR's Work on Phase I, on or about September 1, 1997 but no
later than September 15, 1997; and LESSOR shall deliver its Phase II Delivery
Date notice upon LESSOR's completion of LESSOR's Work on Phase II on or about
October 1, 1997, but no later than November 1, 1997. LESSOR's obligations to
complete as stated above shall be extended on a day to day basis by its
inability to complete due to governmental restrictions; strikes; lockouts;
shortage or labor or materials; civil commotion; extreme weather or
environmental conditions; or acts of God.
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LESSOR shall complete LESSOR's Work in a good and workmanlike manner,
according to the plans and specifications attached hereto as Exhibit C, in
compliance with applicable laws, codes, ordinances and regulations. The term
"substantial completion" as used herein shall mean the completion of all work in
that respective Phase I or Phase II as the case may be, in accordance with the
plans and specifications; but for commonly accepted "punchlist items," which
shall be in the process of being completed (or which need to be completed at the
end of all the Work) and which do not materially interfere with LESSEE's ability
to use the space being delivered for its intended purpose (e.g. office space for
office use; laboratory space for laboratory use). LESSOR shall complete its
punchlist work within thirty (30) days after the Phase II Delivery Date. Upon
completion of LESSOR's Phase I Work and by its delivery notice attached hereto
as Exhibit E - 1. LESSOR shall have certified that portion of the Leased
Premises is valid for occupancy as office space; and subsequent to completion of
LESSOR's Phase II Work, it shall deliver to LESSEE a certificate of occupancy
for the laboratory space.
If any change in the scope or timing of LESSOR's Phase I or Phase II
Work is necessitated by any changes in the plans and specifications for LESSOR's
work requested by LESSEE, or any additions thereto, then LESSOR in each
instance, as soon as practicable under the circumstances, obtain an estimate of
the increase in the cost of such change and/or any anticipated delay resulting
therefrom. LESSEE must decide whether to proceed with such requested change as
soon as practicable under the circumstances after receipt of LESSOR's estimate
of cost and/or delay (but if occasioned by a change requested by LESSEE after
commencement of the actual construction of the Phase I or Phase II Work, within
forty-eight (48) hours). LESSOR's statement shall set forth the additional costs
for any changes that result in additional work, and the credits against the
original cost of the work for any changes that result in deletion from the
original scope of work. If LESSEE decides to proceed, then it shall notify
LESSOR in writing within said timeframes. Upon an affirmative decision by LESSEE
to proceed, the cost of the change shall be paid to LESSOR immediately and in
advance and the work shall be performed as part of the applicable Phase.
Additionally, if LESSEE decides to proceed, any delay occasioned by the change
shall extend, day for day, LESSOR's delivery obligations and deadlines hereunder
accordingly (but shall not change the date on which the Interim Rent or the full
Annual Base Rent would have commenced under LESSOR's construction schedule but
for the change invoked by LESSEE; and each of those respective Rents shall be
paid to LESSOR as of the dates they would have become due absent the LESSEE's
changes, notwithstanding the provisions of the second paragraph of section 2
hereof to the contrary).
LESSEE shall pay its pro rata share of Annual Base Rent and Additional
Rent for any portion of the initial calendar month in which LESSOR makes
delivery of the Leased Premises, on delivery, as contemplated in section 2
hereof.
34. OPTION TO EXTEND. LESSEE, provided it is not then in default in
each instance hereunder beyond any applicable cure periods shall have an option
to extend the Lease Term, on the terms and conditions herein, for one (1)
additional period of five
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(5) years, with the Annual Base Rent to be the then current "Market Rent"
(including annual escalations thereon for each year of the extended term, based
on increases in the Consumer Price Index or fixed increases, as he case may be
as determined by then prevailing market forces), (herein, the "Extended Term").
Said Extended Term shall commence, subject to proper exercise in each instance
of LESSEE's option hereunder, on the Termination Date of the original Term, and
shall terminate on that date which is the fifth anniversary of the Termination
Date. For example, should the Termination Date be September 30, 2002, the
Extended Term terminates on September 30, 2007.
LESSEE shall exercise its option by delivering to LESSOR its written
notice not later than August 30, 2001. "Market Rent" (which term shall include
annual escalations) shall be that fair market rent charged for comparable first
class research laboratory and office space in Cambridge as of the end of the
original Term. If, after good faith attempts for thirty (30) days after LESSEE
delivers notice to LESSOR, the LESSOR and LESSEE cannot agree on a figure
representing Market Rent, then either party, upon written notice to the other,
may request arbitration of the issue as provided in this section. Within
fourteen (14) days of the request for arbitration, each party shall submit to
the other the name of one unrelated individual or entity with proven expertise
in the leasing of commercial real estate in greater Boston to serve as that
party's appraiser. Each appraiser shall be paid by the party selecting him or
it. The two appraisers shall meet within fourteen (14) days of their selection
and collaboratively determine the Market Rent. They shall make their
determination in writing, including a statement if such is the case, that they
are at an impasse. Such a statement of impasse shall be submitted to the parties
along with the Market Rent figure which each appraiser has selected and his
reasons and substantiation therefor. The appraisers, in case of an impasse,
shall also agree on one unrelated individual or entity with expertise in
commercial real estate in greater Boston with at least seven (7) years
experience dealing with real estate appraisals who shall evaluate the reports of
the two original appraisers and within fourteen (14) days of submission of the
issue to him, make his own determination as to a figure representing Market
Rent. The determination of this individual or entity (i.e., arbitrator) absent,
fraud, bias or undue prejudice shall be binding upon the parties. In no event
shall "Market Rent" for the Extended Term be less than that figure payable by
LESSEE during the last year of the Lease Term increased by the cumulative
increase in the greater Boston Consumer Price Index All Urban, all items, since
the last increase in Annual Base Rent.
Annual Base Rent and Additional Rent during any Extended Term shall be
payable in advance, in equal monthly installments on the first day of each
calendar month.
35. EXTENDED TERM ADDITIONAL RENT. LESSEE in addition to the sums
payable annually to LESSOR as Annual Base Rent, shall pay to LESSOR for each
year of any Extended Term, as Additional Operating Expense Rent, and Additional
Tax Escalation Rent, LESSEE's Allocable Percentage (as determined by the
approximate total rentable space leased), of any and all increases in operating
expenses and taxes, as contemplated in Section 3 and 4 of this Lease, over
Exhibit B attached hereto.
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36 ESTOPPEL CERTIFICATE. Upon not less than fifteen days prior written
request by LESSOR, LESSEE shall execute, acknowledge and deliver to LESSOR a
statement in writing certifying if true that this Lease is unmodified and in
full force and effect and that LESSEE has at the time of such statement no
defenses, offsets or counterclaims against its obligations to pay Annual Base
Rent and Additional Operating Expense Rent and Additional Tax Escalation Rent
and any other charges and to perform its other covenants under this Lease (or,
if there have been any modifications that the same is in full force and effect
as modified and stating the modifications and, if there are any defenses,
offsets or counterclaims, setting them forth in reasonable detail), and the
dates to which the Annual Base Rent and any Additional Rent and other charges
have been paid. Any such statement delivered pursuant to this Section may be
relied upon by any prospective purchaser or mortgagee of the Premises, or any
prospective assignee of any such mortgagee or the LESSOR.
37. PRIOR NOTICE AS TO ADJACENT SPACE. LESSEE, provided it is not then
in default hereunder, beyond any applicable notice and cure periods, shall be
provided at least fifteen (15) days written notice prior to LESSOR's remarketing
of the space adjacent to the Leased Premises hereunder on the fourth floor of
the Building; subject to any existing exclusive rights to said space conferred
on any other lessees in the Building. During said fifteen (15) day period,
LESSOR shall entertain offers from and negotiate in good faith with LESSEE as to
the market terms and conditions of any prospective occupancy of said adjacent
space by LESSEE. Once said fifteen (15) day period has lapsed, LESSOR shall be
free to actively market and negotiate with any party and, if discussions were
initiated by LESSEE within said fifteen (15) day period, shall also negotiate
with LESSEE in good faith as to said space. Notwithstanding the foregoing,
LESSOR shall not be bound to consummate any transaction for said space with
LESSEE.
38. LESSEE'S LENDER. LESSEE intends to procure financing which will be
secured by various articles of personal property, including inventory and
equipment to be located in and upon the Leased Premises (the "Secured
Personalty"), which Secured Personalty is to be covered by or described in one
or more security agreements made and entered into by LESSEE. LESSOR agrees that
none of the aforesaid collateral which is the subject of any security agreements
granting a security interest to any of such lenders shall be subject to a claim
for Rent or liable for any lien, right or claim of LESSOR that is senior to the
claim of the lender. Furthermore, in the event the lender, its successors or
assigns shall at any time exercise its or their right or power under said
security agreements to take possession of or to remove the Secured Personalty;
and if LESSOR receives at least ten (10) days prior written notice of the
exercise of said rights with respect to any of the Secured Personalty, other
than LESSEE's books and records (for which no advance notice shall be required),
said notice to provide the name, address, phone number and contact persons in
charge of the exercise of said lender's rights; LESSOR will not hinder the same
or object thereto or interfere therewith, and LESSOR hereby consents to such
taking of possession and removal of said Secured Personalty, regardless of the
manner or degree of their attachment to the realty of the improvements thereon,
and consents to the entry upon said Leased Premises for such purposes; provided
that the secured lender shall
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observe LESSOR's reasonable rules and regulations governing the manner of
removal of the Secured Personalty from the Leased Premises and the building, and
further provided the secured lender will repair any and all damage occasioned by
said removal, properly capping all pipes and repairing all holes and
protrusions, and will pay LESSOR Rent at the daily rate set forth in this Lease
for the Leased Premises if it occupies the Leased Premises for longer than one
(1) day. At LESSEE's request, LESSOR shall execute an instrument in favor of the
secured lender confirming the terms of this section.
39. GOVERNING LAW. This Lease constitutes the full and complete
agreement between the LESSOR and LESSEE and shall be construed under and
according to the laws of the Commonwealth of Mass. Any provision of this Lease
which is deemed void or unenforceable shall not invalidate or render void or
unenforceable the entire Lease. This Lease may only be modified by instrument in
writing signed by both parties hereto (or their permitted successors and
assigns).
IN WITNESS WHEREOF, LESSOR AND LESSEE have hereunto set their hands and
seals this 3rd day of July, 1997.
LESSOR:
RIVERTECH ASSOCIATES, LLC
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Member/Manager
LESSEE:
DYNAGEN, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
--------------------------
its duly authorized President