EXHIBIT 10.12
XXXXXXXX PROPERTIES
STANDARD FORM
COMMERCIAL LEASE
In consideration of the covenants herein contained, Xxxxxxxx Properties
LLC, hereinafter called LESSOR, does hereby, lease to Anika Therapeutics, Inc.
(a MA corp.), 000 Xxx Xxxxxx Xxxxxx, Xxxxxx, XX 00000 hereinafter called LESSEE,
the following described premises, hereinafter called the leased premises:
approximately 4,000 square feet at 000 Xxxx Xxxxxxxx Xxxx, Xxxxxx, XX 00000
TO HAVE AND HOLD the leased premises for a term of four (4) years and
seven (7) months commencing at noon on August 1, 1999 and ending at noon on
February 28, 2004 unless sooner terminated as herein provided. LESSOR and LESSEE
now covenant and agree that the following terms and conditions shall govern this
lease during the term hereof and for such further time as LESSEE shall hold the
leased premises.
1. RENT. LESSEE shall pay to LESSOR base rent at the rate of fifty thousand four
hundred twenty nine (50,429.00) U.S. dollars per year, drawn on a U.S. bank,
payable in advance in monthly installments of $4,202.41, on the first day in
each calendar month in advance, the first monthly payment to be made upon
LESSEE's execution of this lease, including payment in advance of appropriate
fractions of a monthly payment for any portion of a month at the commencement or
end of said lease term. All payments shall be made to LESSOR or agent at 000
Xxxx Xxxxxxxx Xxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, or at such other place as
LESSOR shall from time to time in writing designate. If the "Cost of Living" has
increased as shown by the Consumer Price Index (Boston, Massachusetts, all
items, all urban consumers), U.S. Bureau of Labor Statistics, the amount of base
rent due during each calendar year of this lease and any extensions thereof
shall be annually adjusted in proportion to any increase in the Index. All such
adjustments shall take place with the rent due on January 1 of each year during
the lease term. The base month from which to determine the amount of each
increase in the Index shall be January 1999, which figure shall be compared with
the figure for November 1999, and each November thereafter to determine the
percentage increase (if any) in the base rent to be paid during the following
calendar year. In the event that the Consumer Price Index as presently computed
is discontinued as a measure of "Cost of Living" changes, any adjustment shall
then be made on the basis of a comparable index then in general use.
2. SECURITY DEPOSIT. LESSEE shall pay to LESSOR a security deposit in the amount
of eight thousand four hundred (8,400.00) U.S. dollars upon the execution of
this lease by LESSEE, which shall be held as security for LESSEE's performance
as herein provided and refunded to LESSEE without interest at the end of this
lease, subject to LESSEE's satisfactory compliance with the conditions hereof.
LESSEE may not apply the security deposit to payment of the last month's rent.
In the event of any default or breach of this lease by LESSEE, LESSOR may
immediately apply the security deposit first to any unamortized improvements
completed for LESSEE's occupancy, then to offset any outstanding invoice or
other payment due to LESSOR, with the balance applied to outstanding rent. If
all or any portion of the security
deposit is applied to cure a default or breach during the term of the lease,
LESSEE shall be responsible for restoring said deposit forthwith, and failure to
do so shall be considered a substantial default under the lease. LESSEE's
failure to remit the full security deposit or any portion thereof when due shall
also constitute a substantial lease default. Until such time as LESSEE pays the
security deposit and first month's rent, LESSOR may declare this lease null and
void for failure of consideration.
3. USE OF PREMISES. LESSEE shall use the leased premises only for the purpose of
executive and administrative offices and research, development and manufacturing
of medical use products.
4. ADDITIONAL RENT. LESSEE shall pay to LESSOR as additional rent a
proportionate share (based on square footage leased by LESSEE as compared with
the total leaseable square footage of the building of which the leased premises
are a part) of any increase in the real estate taxes levied against the land and
building of which the leased premises are a part (hereinafter called the
building), whether such increase is caused by an increase in the tax rate, or
the assessment on the property, or a change in the method of determining real
estate taxes. LESSEE shall make payment within thirty (30) days of written
notice from LESSOR that such increased taxes are payable, and any additional
rent shall be prorated should the lease terminate before the end of any tax
year. The base from which to determine the amount of any increase in taxes shall
be the rate and the assessment in effect as of July 1, 1999.
5. UTILITIES. LESSOR shall provide equipment per LESSOR's building standard
specifications to heat the leased premises in season and to cool all areas
between May 1 and November 1. LESSEE shall pay all charges for utilities used on
the leased premises, including electricity, gas, oil, water and sewer. LESSEE
shall pay the utility provider or LESSOR, as applicable, for all such utility
charges as determined by separate meters serving the leased premises and/or as a
proportionate share of the utility charges for the building if not separately
metered. LESSEE shall also pay LESSOR a proportionate share of any other fees
and charges relating in any way to utility use at the building. No plumbing,
construction or electrical work of any type shall be done without LESSOR's prior
written approval and LESSEE obtaining the appropriate municipal permit.
6. COMPLIANCE WITH LAWS. LESSEE acknowledges that no trade, occupation, activity
or work shall be conducted in the leased premises or use made thereof which may
be unlawful, improper, noisy, offensive, or contrary to any applicable statute,
regulation, ordinance or bylaw. LESSEE shall keep all employees working in the
leased premises covered by Worker's Compensation Insurance and shall obtain any
licenses and permits necessary for LESSEE's occupancy. LESSEE shall be
responsible for causing the leased premises and any alterations by LESSEE which
are allowed hereunder to be in full compliance with any applicable statute,
regulation, ordinance or bylaw.
7. 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. 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 LESSEE may elect to
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terminate this lease if: (a) LESSOR fails to give written notice within thirty
(30) days of intention to restore the leased premises, or (b) 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. LESSOR
reserves all rights for damages or injury to the leased premises for any taking
by eminent domain, except for damage to LESSEE's property or equipment.
8. FIRE INSURANCE. LESSEE shall not permit any use of the leased premises which
will adversely affect or 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
Insurance Services office (or successor), local Fire Department, LESSOR's
insurer, or any similar body. LESSEE shall on demand reimburse LESSOR, and all
other tenants, all extra insurance premiums caused by LESSEE's use of the leased
premises. LESSEE shall not vacate the leased premises or permit same to be
unoccupied other than during LESSEE's customary non-business days or hours.
9. MAINTENANCE OF PREMISES. LESSOR will be responsible for all structural
maintenance of the leased premises and for the normal daytime maintenance of all
space heating and cooling equipment, sprinklers, doors, locks, plumbing, and
electrical wiring, but specifically excluding damage caused by the careless
malicious, willful or negligent acts of LESSEE or others, chemical, water or
corrosion damage from any source, and maintenance of any non "building standard"
leasehold improvements. LESSEE agrees to maintain at its expense all other
aspects of 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 other casualty only excepted, and
whenever necessary, to replace light bulbs, plate glass and other glass therein,
acknowledging that the leased premises are now in good order and the light bulbs
and glass whole. LESSEE will properly control or vent all solvents, degreasers,
smoke, odors, etc. 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 be solely responsible for any damage to
plumbing equipment, sanitary lines, or any other portion of the building which
results from the discharge or use of any acid or corrosive substance by LESSEE.
LESSEE shall not permit the leased premises to be overloaded, damaged, stripped
or defaced, nor suffer any waste, and will not keep animals within the leased
premises. If the leased premises include any wooden mezzanine type space, the
floor capacity of such space is suitable only for office use, light storage or
assembly work. LESSEE will protect any carpet with plastic or masonite chair
pads under any rolling chairs. Unless heat is provided at LESSOR's expense,
LESSEE shall maintain sufficient heat to prevent freezing of pipes or other
damage. Any increase in air conditioning equipment or electrical capacity or any
installation or maintenance of equipment which is necessitated by some specific
aspect of LESSEE's use of the leased premises shall be LESSEE's sole
responsibility, at LESSEE's expense and subject to LESSOR's prior written
consent. All maintenance provided by LESSOR shall be during LESSOR's normal
business hours.
10. 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.* All such allowed alterations shall be at
LESSEE's expense and shall
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* Such consent shall not be unreasonably withheld
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conform with LESSOR's construction specifications. If LESSOR or LESSOR's agent
provides any services or maintenance for LESSEE in connection with such
alterations or otherwise under this lease, any just invoice 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 or removed forthwith without cost to LESSOR. Any
alterations or additions shall become part of the leased premises and the
property of LESSOR. Any alterations completed by LESSOR or LESSEE shall be
LESSOR's "building standard" unless noted otherwise. LESSOR shall have the right
at any time to change the arrangement of parking areas, stairs, walkways or
other common areas of the building.
11. ASSIGNMENT OR SUBLEASING. LESSEE shall not assign this lease or sublet or
allow any other firm or individual to occupy the whole or any part of the leased
premises without LESSOR's prior written consent. Notwithstanding such assignment
or subleasing, LESSEE and GUARANTOR shall remain liable to LESSOR for the
payment of all rent and for the full performance of the covenants and conditions
of this lease. LESSEE shall pay LESSOR promptly for legal and administrative
expenses incurred by LESSOR in connection with any consent requested hereunder
by LESSEE.
12. SUBORDINATION. This lease shall be subject and subordinate to any and all
mortgages and other instruments in the nature of a mortgage, now or at any time
hereafter, and 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 or other such instruments in the nature of a mortgage.
13. LESSOR'S ACCESS. LESSOR or agents of LESSOR may at any reasonable time enter
to view the leased premises, to make repairs and alterations as LESSOR should
elect to do for the leased premises, the common areas or any other portions of
the building, to make repairs which LESSEE is required but has failed to do, and
to show the leased premises to others.
14. SNOW REMOVAL. The plowing of snow from all roadways and unobstructed parking
areas shall be at the sole expense of LESSOR. The control of snow and ice on ail
walkways, steps and loading areas serving the leased premises and all other
areas not readily accessible to plows shall be the sole responsibility of
LESSEE. Notwithstanding the foregoing, however, LESSEE shall hold LESSOR and
OWNER harmless from any and all claims by LESSEE's agents, representatives,
employees, callers or invitees for damage or personal injury resulting in any
way from snow or ice on any area serving the leased premises.
15. ACCESS AND PARKING. LESSEE shall have the right without additional charge to
use parking facilities provided for the leased premises in common with others
entitled to the use thereof. Said parking areas plus any stairs, corridors,
walkways, elevators or other common areas (hereinafter collectively called the
common areas) shall in all cases be considered a part of the leased premises
when they are used by LESSEE or LESSEE's employees, agents. callers or invitees.
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 rules and
regulations now or hereafter made by LESSOR for parking, and for the care, use,
or alteration of the building, its facilities and approaches. LESSEE further
warrants that LESSEE will not permit any employee or visitor
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to violate this or any other covenant or obligation of LESSEE. No unattended
parking will be permitted between 7:00 PM and 7:00 AM without LESSOR's prior
written approval, and from December 1 through March 31 annually, such parking
shall be permitted only in those areas specifically designated for assigned
overnight parking. Unregistered or disabled vehicles, or storage trailers of any
type, may not be parked at any time. LESSOR may tow, at LESSEE's sole risk and
expense, any misparked vehicle belonging to LESSEE of LESSEE's agents,
employees, invitees or callers, at any time. LESSOR shall not be responsible for
providing any security services for the leased premises.
16. LIABILITY. LESSEE shall be solely responsible as between LESSOR and LESSEE
for deaths or personal injuries to all persons whomsoever occurring in or on the
leased premises (including any common areas that are considered part of the
leased premises hereunder) from whatever cause arising, and damage to property
to whomsoever belonging arising out of the use, control, condition or occupation
of the leased premises by LESSEE; and LESSEE agrees to indemnify and save
harmless LESSOR and OWNER from any and all liability, including but not limited
to costs, expenses, damages causes of action, claims, judgments and attorney's
fees caused by or in any way growing out of any matters aforesaid, except for
death, personal injuries or property damage directly resulting from the sole
negligence of LESSOR.
17. INSURANCE. LESSEE will secure and carry at its own expense a commercial
general liability policy insuring LESSEE, LESSOR and OWNER against any claims
based on bodily injury (including death) or property damage arising out of the
condition of the leased premises (including any common areas that are considered
part of the leased premises hereunder) or their use by LESSEE, such policy to
insure LESSEE, LESSOR and OWNER against an claim up to One Million (1,000,000)
Dollars in the case of any one accident involving bodily injury (including
death), and up to One Million (1,000,000) Dollar against any claim for damage to
property. LESSOR and OWNER shall be included in each such policy as additional
insureds using ISO Form CG 20 26 11 8 or some other form approved by LESSOR.
LESSEE will file with LESSOR prior to occupancy certificates and any applicable
riders or endorsements 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
cancelled without at least ten (10) days prior written notice to each insured.
In the event LESSEE shall fail to provide or maintain such insurance at any time
during the term of this lease, then LESSOR may elect to contract for such
insurance at LESSEE's expense.
18. SIGNS. LESSOR authorizes, and LESSEE at LESSEE's expense agrees to erect
promptly upon commencement of this lease, signage for the lease premises in
accordance with LESSOR's building standards for style, size, location, etc.
LESSEE shall obtain the prior written consent of LESSOR before erecting any sign
on the leased premises, which consent shall include approval as to size,
wording, design and location. LESSOR may remove and dispose of any sign not
approved erected or displayed in conformance with this lease.
19. BROKERAGE. LESSEE warrants and represents to LESSOR that LESSEE has dealt
with no broker or third person with respect to this lease, and LESSEE agrees to
indemnify LESSOR against any brokerage claims arising by virtue of this lease.
LESSOR warrants and represents to LESSEE that LESSOR has employed no exclusive
broker or agent in connection with the letting of the leased premises.
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20. DEFAULT AND ACCELERATION OF RENT. In the event that: (a) any assignment for
the benefit of creditors trust mortgage, receivership's or other insolvency
proceeding shall be made or instituted with respect to LESSEE or LESSEE's
property; (b) LESSEE shall default in the observance or performance of any of
LESSEE's covenants, agreements, or obligations hereunder, other than substantial
monetary payments as provided below, and such default shall not be corrected
within thirty (30) days after written notice thereof; or (c) LESSEE vacates the
leased premises, then LESSOR shall have the right thereafter, while such default
continues and without demand or further notice, to re-enter and take 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 the lease. If LESSEE shall default in the payment of
the security deposit, rent, taxes, substantial invoice from LESSOR or LESSOR's
agent for goods and/or services or other sum herein specified, and such default
shall continue for ten (10) days after written notice thereof, and, because both
parties agree that nonpayment of said sums when due is a substantial breach of
the lease, and, because the payment of rent in monthly installments is for the
sole benefit and convenience of LESSEE, then in addition to the foregoing
remedies the entire balance of rent which is due hereunder shall become
immediately due and payable as liquidated damages. LESSOR, without being under
any obligation to do so and without thereby waiving any default, may remedy same
for the account and at the expense of LESSEE. If LESSOR pays or incurs any
obligations for the payment of money in connection therewith, such sums paid or
obligations incurred plus interest and costs, shall be paid to LESSOR by LESSEE
as additional rent. any sums received by LESSOR from or on behalf of LESSEE at
any time shall be applied first to any unamortized improvements completed for
LESSEE's occupancy, then to offset any outstanding invoice or other payment due
to LESSOR, with the balance applied to outstanding rent. LESSEE agrees to pay
reasonable attorney's fees and/or administrative costs incurred by LESSOR in
enforcing any or all obligations of LESSEE under this lease at any time. LESSEE
shall a LESSOR interest at the rate of eighteen (18) percent per annum on any
payment from LESSEE to LESSOR which is past due.
21. NOTICE. Any notice from LESSOR to LESSEE relating to the leased premises or
to the occupancy thereof shall be deemed duly served when left at the leased
premises addressed to LESSEE, or served by constable, or sent to the leased
premises by certified mail, return receipt requested, postage prepaid, addressed
to LESSEE. Any notice from LESSEE to LESSOR relating to the leased premises or
to the occupancy thereof shall be deemed duly served when served by constable,
or delivered to LESSOR by certified mail, return receipt requested, postage
prepaid, addressed to LESSOR at 000 Xxxx Xxxxxxxx Xxxx, Xxxxxx, XX 00000 or at
LESSOR's last designated address. No oral notice or representation shall have
any force or effect. Time is of the essence in the service of any notice.
22. OCCUPANCY. In the event that LESSEE takes possession of said leased premises
prior to the start of the lease term, LESSEE will perform and observe all of
LESSEE's covenants from the date upon which LESSEE takes possession except the
obligation for the payment of extra rent for any period of less than one month.
LESSEE shall not remove LESSEE's goods or property from the leased premises
other than in the ordinary and usual course of business, without having first
paid and satisfied LESSOR for all rent which may become due during the entire
term of this lease. In the event that LESSEE continues to occupy or control all
or any part of the leased premises after the agreed termination of this lease
without the written permission of
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LESSOR, then LESSEE shall be liable to LESSOR for any and all loss, damages or
expenses incurred by LESSOR, and all other terms of this lease shall continue to
apply except that rent shall be due in full monthly installments at a rate of
one hundred fifty (150) percent of that which would otherwise be due under this
lease, it being understood between the parties that such extended occupancy is
as a tenant at sufferance and is solely for the benefit and convenience of
LESSEE and as such has greater rental value. LESSEE's control or occupancy of
all or any part of the leased premises beyond noon on the last day of any
monthly rental period shall constitute LESSEE's occupancy for an entire
additional month, and increased rent as provided in this section shall be due
and payable immediately in advance. LESSOR's acceptance of any payments from
LESSEE during such extended occupancy shall not after LESSEE's status as a
tenant at sufferance.
23. FIRE PREVENTION. LESSEE agrees to use every reasonable precaution against
fire and agrees to provide and maintain approved, labeled fire extinguishers,
emergency lighting equipment, and exit signs and complete any other
modifications within the leased premises as required or recommended by the
Insurance Services Office (or successor organization), OSHA, the local Fire
Department, or any similar body.
24. OUTSIDE AREA. Any goods, equipment, or things of any type or description
held or stored in any common area without LESSOR's prior written consent shall
be deemed abandoned and may be removed by LESSOR at LESSEE's expense without
notice. LESSEE shall maintain a building standard size dumpster in a location
approved by LESSOR, which dumpster shall be provided and serviced at LESSEE's
expense by whichever disposal firm may from time to time be designated by
LESSOR. Alternatively, if a shared dumpster or compactor is provided by LESSOR,
LESSEE shall pay its proportionate share of any costs associated therewith.
25. 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 odors, smoke, exhaust, smells,
noise, pets, accumulation of garbage or trash, vermin or other pests, or
otherwise, and will at its expense employ a professional pest control service if
necessary. LESSEE agrees to maintain efficient and effective devices for
preventing damage to heating equipment from solvents, degreasers, cutting oils,
propellants, etc. which may be present at the leased premises. No hazardous
materials or wastes shall be stored, disposed of, or allowed to remain at the
leased premises at any time**, and LESSEE shall be solely responsible for any
and all corrosion or other damage associated with the use, storage and/or
disposal of same by LESSEE.
26. RESPONSIBILITY. Neither LESSOR nor OWNER shall be held liable to anyone for
loss or damage caused in any way by the use, leakage, seepage or escape of water
from any source, or for the cessation of any service rendered customarily to
said premises or buildings, or agreed to by the terms of this lease, due to any
accident, the making of repairs, alterations or improvements, labor
difficulties, weather conditions, mechanical breakdowns, trouble or scarcity in
obtaining fuel, electricity, service or supplies from the sources from which
they are usually obtained for said building, or any cause beyond LESSOR's
immediate control.
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** except as provided in the Rider to Lease
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27. SURRENDER. LESSEE shall at the termination of this lease remove all of
LESSEE's goods and effects from the leased premises. LESSEE shall deliver to
LESSOR the leased premises and all keys and locks thereto, all fixtures and
equipment connected therewith, and all alterations, additions and improvements
made to or upon the leased premises, whether completed by LESSEE, LESSOR or
others, including but not limited to any offices, partitions, window blinds,
floor coverings (including computer floors), plumbing and plumbing fixtures, air
conditioning equipment and ductwork of any type, exhaust fans or heaters, water
coolers, burglar alarms, telephone wiring, air or gas distribution piping,
compressors, overhead cranes, hoists, trolleys or conveyors, counters, or signs
attached to walls or floors, all electrical work, including but not limited to
lighting fixtures of any type, wiring, conduit, EMT, transformers, distribution
panels, bus ducts, raceways, outlets and disconnects, and furnishings or
equipment which have been bolted, welded, trailed, screwed, glued or otherwise
attached to any wall, floor, ceiling, roof, pavement or ground, or which have
been directly wired to any portion of the electrical system or which have been
plumbed to the water supply, drainage or venting systems serving the leased
premises. LESSEE shall deliver the leased premises sanitized from any chemicals
or other contaminants, and broom clean and in the same condition as they were at
the commencement of this lease or any prior lease between the parties for the
leased premises, or as they were modified during said term with LESSOR's written
consent, reasonable wear and tear and damage by fire or other casualty only
excepted. In the event of LESSEE's failure to remove any of LESSEE's property
from the leased premises upon termination of the lease, 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 such 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 due hereunder, or to destroy
abandoned property. In no case shall the leased premises be deemed surrendered
to LESSOR until the termination date provided herein or such other date as may
be specified in a written agreement between the parties, notwithstanding the
delivery of any keys to LESSOR.
28. GENERAL. (a) The invalidity or unenforceability of any provision of this
lease shall not affect or render invalid or unenforceable any other provision
hereof. (b) 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 and OWNER shall be
liable only for obligations occurring while lessor, owner, or master lessee of
the premises. (c) Any action or proceeding arising out of the subject matter of
this lease shall be brought by LESSEE within one year after the cause of action
has occurred and only in a court of the Commonwealth of Massachusetts. (d) If
LESSOR is acting under or as agent for any trust or corporation, the obligations
of LESSOR shall be binding upon the trust or corporation, but not upon any
trustee, officer, director, shareholder, or beneficiary of the trust or
corporation individually. (e) If LESSOR is not the owner (OWNER) of the leased
premises, LESSOR represents that said OWNER has agreed to be bound the terms of
this lease unless LESSEE is in default hereof. (f) This lease is made and
delivered in the Commonwealth of Massachusetts, and shall be interpreted,
construed, and enforced in accordance with the laws thereof. (g) This lease was
the result of negotiations between parties of equal bargaining strength, and
when executed by both parties shall constitute the entire agreement between the
parties, superseding all prior oral and written agreements, representations,
statements and negotiations relating in any way to
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the subject matter herein. This lease may not be extended or amended except by
written agreement signed by both parties or as otherwise provided herein, and no
other subsequent oral or written representation shall have any effect hereon.
(h) Notwithstanding any other statements herein, LESSOR makes no warranty,
express or implied, concerning the suitability of the leased premises for
LESSEE's intended use. (i) LESSEE agrees that if LESSOR does not deliver
possession of the leased premises as herein provided for any reason, LESSOR
shall not be liable for any damages to LESSEE for such failure, but LESSOR
agrees to use reasonable efforts to deliver possession to LESSEE at the earliest
possible date. A proportionate abatement of rent, excluding the cost of any
amortized improvements to the leased premises, for such time as LESSEE may be
deprived of possession of the leased premises, except where a delay in delivery
is caused in any way by LESSEE, shall be LESSEE's sole remedy. (j) Neither the
submission of this lease form, nor the prospective acceptance of the security
deposit and/or rent shall constitute a reservation of or option for the leased
premises, or an offer to lease, it being expressly understood and agreed that
this lease shall not bind either party in any manner whatsoever until it has
been executed by both parties. (k) LESSEE shall not be entitled to exercise any
option contained herein if LESSEE is at that time in default of any terms or
conditions hereof. (l) Except as otherwise provided herein, LESSOR, OWNER and
LESSEE shall not be liable for any special, incidental, indirect or
consequential damages, including but not limited to lost profits or loss of
business, arising out of or in any manner connected with performance or
nonperformance under this lease, even if any party has knowledge of the
possibility of such damages. (m) The headings in this lease are for convenience
only and shall not be considered part of the terms hereof. (n) No endorsement by
LESSEE on any check shall bind LESSOR in any way. (o) LESSOR and LESSEE hereby
waive any and all rights to a jury trial in any proceeding in any way arising
out of this lease.
29. SECURITY AGREEMENT. THIS PARAGRAPH DOES NOT APPLY.
30. WAIVERS, ETC. No consent or waiver, express or implied, by LESSOR, to or of
any breach of any covenant, condition or duty of LESSEE 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, several corporations 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.
31. AUTOMATIC FIVE-YEAR EXTENSIONS. THIS PARAGRAPH DOES NOT APPLY.
32. ADDITIONAL PROVISIONS. (Continued on attached rider(s) if necessary.)
- See Attached Rider -
IN WITNESS WHEREOF, LESSOR and LESSEE have hereunto set their hands and
common seals and intend to be legally bound hereby this 9th day of July, 1999.
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LESSOR: XXXXXXXX PROPERTIES LLC LESSEE: ANIKA THERAPEUTICS, INC.
By: /s/ XXXXXXX XXXXXXXX By: /s/ XXXX XXXXX
------------------------ -----------------------------------
Executive Vice President Xxxx Xxxxx, Chief Financial Officer
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RIDER TO LEASE
The following additional provisions are Incorporated into and made a part of the
attached lease:
A. * LESSOR, at a total cost to LESSEE of $21,340.00 to be paid upon LESSEE'S
execution of this lease shall complete alterations and improvements within
the leased premises in accordance with the mutually agreed upon plan
attached hereto.
B. * With reference to Section 25 above, no hazardous materials or hazardous
wastes shall be used, processed stored, or disposed of in any manner or
form within the leased premises or any extension thereof in violation of
any applicable local, state, or federal law, rule or regulation. LESSEE
shall be responsible for and shall indemnify and hold LESSOR harmless from
any and all liability, damage or personal injury associated with any use,
processing, storage, or disposal of such materials.
C. LESSEE, at LESSEE'S sole expense, shall return the leased premises at the
end of the lease tern or any extension thereof free from any and all
hazardous substances and wastes and biological, radiological, chemical or
other contamination which, in any such case, is in violation of any
applicable laws, regulations or ordinances and which, in any such case,
has been placed on or about the leased premises by LESSEE. Prior to the
end of the lease term, LESSEE shall be solely responsible for remedying
any and all damage, removing any and all contamination and disposing of
any hazardous substances and wastes caused or generated by LESSEE on or
about the leased premises, to the extent such damage, contamination,
substances and wastes are in violation of any applicable law. Time is of
the essence.
D. On or before the termination date of this lease, LESSEE, at LESSEE'S sole
expense, shall engage an independent and accredited industrial hygiene
consultant or other appropriate, accredited consultant to be selected by
LESSEE with LESSOR'S written consent, said consent not to be unreasonably
withheld or delayed, to inspect the interior of the leased premises. Said
consultant shall certify that, after reasonable investigation, no
biological, radiological, chemical or other contamination generated in any
way by LESSEE is present in the interior of the leased premises in any
level that exceeds any governmental law, rule or regulation as a result of
LESSEES use of the leased premises. Said consultant shall also state that,
after reasonable investigation, there is no contamination resulting from
LESSEE'S use of the leased premises which renders the leased premises
unsuitable for future use and occupation by others. LESSEE shall provide
LESSOR with a copy of said consultant's report. Time is of the essence.
E. * Provided LESSEE is not then in default of this lease or in arrears of
any rent or invoice payment, LESSEE shall have the right to extend this
lease, including all terns, conditions, escalations, etc., for one
additional period of five (5) years ("the extended lease term") by serving
LESSOR with written notice of its desire to so extend the lease. The time
for serving such written notice shall be not more than 12 months or less
than 6 months prior to the expiration of the initial lease term. Time is
of the essence.
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F. * Notwithstanding the provisions of Section 1 above, annual base rent
during the extended lease term shall be recalculated at LESSOR'S published
annual rental rate as of the commencement of the extended lease term for
similar space. The base month from which to determine the amount of each
"Cost of Living" adjustment during the extended lease term shall be
changed to January 2004, the "comparison" month shall be changed to
November 2004, and the first adjustment during the extended lease term
shall take place with the rent due on January 1, 2005. Section 1 shall
continue to apply in all other respects during the extended lease term.
G. * Prior to the termination date of this lease, LESSEE may remove equipment
and furniture listed on Exhibit A-2 which have been supplied and installed
by LESSEE if LESSEE has satisfactorily complied with all other conditions
of this lease and if LESSEE repairs any and all damage resulting from such
removal and restores the leased premises to their condition prior to the
installation of said equipment, all on a timely basis prior to the end of
the lease term. Time is of the essence.
LESSOR: XXXXXXXX PROPERTIES, LLC LESSEE: ANIKA THERAPEUTICS, INC.
By: /s/ XXXXXXX XXXXXXXX By: /s/ XXXX XXXXX
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Executive Vice President Xxxx Xxxxx
Date: 7/20/99
