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Exhibit 10.53
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FOURTH AMENDMENT
Amendment of Lease made this 10th day of April, 1997, by and between WRC
Properties, Inc., 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (hereinafter with
its successors and assigns called the "Lessor"), and Creative BioMolecules, Inc.
(hereinafter with its successors and permitted assigns called the "Lessee").
Witnesseth:
Whereas Lessor and Lessee are the present parties to a certain Standard Form
Industrial Lease dated October 24, 1988, First Amendment dated September 17,
1991, Second Amendment dated January 28, 1994 and Third Amendment dated
September 20, 1994 (hereinafter the "Lease"), for premises consisting of
approximately 54,203 square feet of floor area located in the building known as
00 Xxxxx Xxxxxx (xxx "Xxxxxxxx"), Xxxxxxxxx, Xxxxxxxxxxxxx (hereinafter referred
to as the "Demised Premises").
Whereas, in consideration of the covenants herein reserved and contained, the
parties hereto agree and amend the Lease as follows, effective on the
Commencement Date of this Amendment.
1. The Lease Term shall be extended for three (3) years, beginning on July
1, 1998 and terminating on June 30, 2001 (the "Fourth Extended Term").
2. The annual rent shall be based on $6.00 per square foot, triple net,
for the leased space of 54,203 square feet, fixed for the Fourth
Extended Term. Beginning July 1, 1998, the Annual Base Rent shall
increase from Two Hundred Eighty-Four Thousand Five Hundred Sixty-Five
and 75/100 ($284,565.75) Dollars to Three Hundred Twenty-Five Thousand
Two Hundred Eighteen and 00/100 ($325,218.00) Dollars, fixed for the
entire Fourth Extended Term, payable monthly in advance in equal
installments of Twenty- Seven Thousand One Hundred One and 50/100
($27,101.50) Dollars.
3. Lessee will have one (1), three (3) year option to renew the Lease at
Fair Market Rent, as hereafter defined, but in no event is the rate to
be less than the current rate. In order to exercise this option, Lessee
must notify Lessor in writing of its intention to renew at least one
hundred eighty (180) days prior to expiration of the Fourth Extended
Term.
4. Lessee shall have the continuous Right of First Refusal on any and all
additional space that becomes available in the Building, deferring,
however, to any pre-existing rights of first refusal held by
MicroElectronic Technologies, Inc. MicroElectronic Technologies, Inc.
has the Right of First Offer on adjacent space at Fair Market Rent and
must respond to Lessor within twenty (20) days of receipt of Lessor's
Notice. In the event that space in the Building shall become available
for leasing, and MicroElectronic Technologies, Inc.
does not exercise its Right of First Offer, Lessor
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hereby agrees to advise Lessee of its intention to market such space
before offering it on the open market, which notice (an "Offer") shall
specify the terms and provisions upon which Lessor would be willing to
lease such space to Lessee (including annual base rent at a then Fair
Market Rent, as hereafter defined) all as determined by Lessor. Lessee
shall have a period of twenty (20) days after receipt of such Offer
within which to advise Lessor that it desires to lease all of such space
described in the Offer from Lessor upon and subject to all of the terms,
covenants and provisions contained in Lessor's Offer to Lessee. Failure
of the Lessee to timely exercise its right to accept such Offer to lease
the space or to enter into an Amendment to this Lease reasonably
reflecting the foregoing within 15 days after its receipt of such
agreement shall be deemed a waiver of Lessee's rights with respect to
such space and thereupon Lessor shall be free to enter into a Lease with
any third party for the space described in such Offer upon and subject
to the terms and provisions it shall deem appropriate in its discretion,
provided that such terms shall not provide for an annual base rent
(taking into consideration free rent, reduced rent, and other rent
concessions) in an amount which is less than eighty-five percent (85%)
of the annual base rent set forth in the Offer. In the event that Lessor
shall enter into a lease with a third party consistent with the terms
herein specified, Lessee shall have no further rights to receive a Right
of First Refusal. Failure of Lessee to timely accept any Offer shall be
deemed a waiver of such right by Lessee as to all other space in the
Building at any other time.
5. Except as provided in this Amendment, nothing herein shall be deemed to
modify or amend the terms of the Lease.
6. The Lease as hereby amended shall be governed by and construed and
enforced in accordance with the Laws of the Commonwealth of
Massachusetts.
7. For the purposes of this Amendment, the Fair Market Rent (FMR) shall be
determined as follows: Lessor shall initially designate the Fair Market
Rental Value and shall furnish data in support of such designation. If
Lessee disagrees with Lessor's designation of the Fair Market Rent,
Lessee shall have the right, by written notice given to Lessor within
ten (10) days after Lessee has been nofified of Lessor's designation, to
submit such Fair Market Rent to arbitration as follows: Fair Market Rent
shall be determined by agreement between Lessor and Lessee, but if
Lessor and Lessee are unable to agree upon the Fair Market Rent at least
one hundred fifty (150) days prior to the date upon which the Fair
Market Rent is to take effect, then the Fair Market Rent shall be
determined by appraisal as follows: The Lessor and Lessee shall each
appoint a Qualified Appraiser (as said term is hereinafter defined) at
least one hundred twenty (120) days prior to the commencement of the
period for which Fair Market Rent is to be determined and shall
designate the Qualified Appraiser so appointed by notice to the other
party. The two appraisers so appointed shall meet within ten (10) days
after both appraisers are designated in an attempt to agree upon the
Fair Market Rent for the applicable Extension Period
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and if, within fifteen (15) days after both appraisers are designated,
the two appraisers do not agree upon the Fair Market Rent, then each
appraiser shall, nor later than thirty (30) days after both appraisers
have been chosen, deliver a written report to both the Lessor and Lessee
setting forth the Fair Market Rent as determined by each such appraiser,
taking into account the factors set forth in this Section 7. If the
lower of the two determinations of Fair Market Rental Value as
determined by such two appraisers is equal to or greater than 95% of the
higher of the Fair Market Rent as determined by such two appraisers, the
Fair Market Rent shall be deemed to be the average of such Fair Market
Rent as set forth in such two determinations. If the lower determination
of Fair Market Rent is less than 95% of the higher determination of Fair
Market Rent, the two appraisers shall promptly appoint a third Qualified
Appraiser and shall designate such third Qualified Appraiser by notice
to Lessor and Lessee. The cost and expenses of each appraiser appointed
separately by Lessee and Lessor shall be borne by the party who
appointed the appraiser. The cost and expenses of the third appraiser
shall be shared equally by Lessee and Lessor. If the two appraisers
cannot agree on the identity of the third Qualified Appraiser at least
three (3) months prior to commencement of the period for which Fair
Market Rent is to be determined, then the third Qualified Appraiser
shall be appointed by the American Arbitration Association ("AAA")
sitting in Boston, Massachusetts and acting in accordance with its rules
and regulations. The costs and expenses of the AAA proceeding shall be
borne equally by the Lessor and Lessee. The third appraiser shall
promptly make its own independent determination of Fair Market Rent for
the Premises, taking into account the factors set forth in this Section
7, and shall promptly notify Lessor and Lessee of his determination. If
the determination of the Fair Market Rent of any two of the appraisers
shall be identical in amount, said amount shall be deemed to be the Fair
Market Rent for the Premises. If the determinations of all three
appraisers shall be dfferent in amount, the average of the two nearest
in amount shall be deemed the Fair Market Rent. The Fair Market Rent of
the subject space determined in accordance with the provisions of this
Section shall be binding and conclusive on Lessee and Lessor. As
indicated above, in no event shall the Fair Market Rent be less than the
Basic Rent applicable to the 12 calendar month period immediately
preceding the commencement of the Extension Period. As used herein, the
term "Qualified Appraiser" shall mean any disinterested person (a) who
is employed by an appraisal firm of recognized competence in the Greater
Boston area, (b) who has not less than ten (10) years experience in
appraising and valuing properties of the general location, type and
character as the Premises, and (c) who is either a Senior Real Property
Appraiser of the Society of Real Estate Appraisers or a member of the
Appraisal Institute (or any successor organization). Notwithstanding the
foregoing, if either party shall fail to appoint its appraiser within
the period specified above (such party referred to hereinafter as the
"Failing Party"), the other party may serve notice on the Failing Party
requiring the Failing Party to appoint its appraiser within ten (10)
days of the giving of such notice, and if the Failing
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Party shall not respond by appointment of its appraiser within said ten
(10) day period, then the appraiser appointed by the other party shall
be the sole appraiser whose determination of Fair Market Rent shall be
binding and conclusive upon Lessee and Lessor. If, for any reason, Fair
Market Rent shall not have been determined by the time of commencement
of the Extension Period and until such rent is determined, Lessee shall
pay Basic Rent during the Extension Period in an amount (the "Interim
Rent") as specified by Landlord's appraiser and upon receipt of a final
determination of Fair Market Rent as hereinabove set forth, any
overpayment or underpayment of Interim Rent shall be paid promptly to
the party entitled to receive the same. No rights of arbitration under
this paragraph shall apply to Paragraph 4 above.
In witness whereof, the parties have hereunder set their hands and seals this
8TH day of May, 1997.
Lessor: WRC Properties, Inc.
By: /s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx
Title: Assistant Secretary
Date: May 8, 1997
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Lessee: Creative BioMolecules, Inc.
By: /s/ Xxxxx X. Xxxxxx III
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Print Name: Xxxxx X. Xxxxxx III
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Title: Vice President & Chief Financial Officer
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Date: April 17, 1997
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