Exhibit 10.13
HILL BUILDING
Lease to Pharmaceutical Peptides, Inc.
Table of Contents
1. Recitals and Definitions.............................................. 1
1.1 Recitals........................................................ 1
1.2 Definitions..................................................... 1
2. Premises and Term..................................................... 2
2.1 Premises........................................................ 2
2.2 Appurtenant Rights.............................................. 3
2.3 Landlord's Reservations......................................... 3
2.4 Parking......................................................... 4
3. Rent and Other Payments............................................... 4
3.1 Annual Fixed Rent............................................... 4
3.2 Real Estate Taxes............................................... 5
3.3 Operating Expenses.............................................. 8
3.4 Inspection and Audit............................................ 12
3.5 Electricity..................................................... 12
3.6 Other Utility Charges........................................... 13
3.7 Above-Standard Services......................................... 13
3.8 No Offsets...................................................... 14
3.9 Security Services............................................... 14
3.10 Net Lease....................................................... 14
4. Alterations........................................................... 14
4.1 Consent Required for Tenant's Alterations....................... 14
4.2 Ownership of Alterations........................................ 15
4.3 Construction Requirements for Alterations....................... 15
4.4 Payment for Tenant Alterations.................................. 16
4.5 Tenant's Initial Improvements................................... 17
4.6 Security for Performance of Tenant's
Initial Improvements............................................ 19
4.7 Use of Roof..................................................... 24
5. Responsibility for Condition of Building and
Premises.............................................................. 26
5.1 Maintenance of Building and Common Ar
eas by Landlord................................................. 26
5.2 Maintenance of Premises by Tenant............................... 27
5.3 Delays in Landlord's Services................................... 27
6. Tenant Covenants...................................................... 28
6.1 Permitted Uses.................................................. 28
6.2 Laws and Regulations............................................ 29
6.3 Rules and Regulations........................................... 29
6.4 Safety Compliance............................................... 30
6.5 Landlord's Entry................................................ 30
6.6 Floor Load...................................................... 30
6.7 Personal Property Tax........................................... 30
6.8 Assignment, Subleases or other Transfers........................ 30
7. Indemnity and Insurance............................................... 33
7.1 Indemnity....................................................... 33
7.2 Liability Insurance............................................. 34
7.3 Personal Property at Risk....................................... 35
7.4 Waiver of Subrogation........................................... 35
7.5 Landlord's Insurance............................................ 36
8. Casualty and Eminent Domain........................................... 36
8.1 Restoration Following Casualties................................ 36
8.2 Landlord's Termination Election................................. 37
8.3 Tenant's Termination Election................................... 37
8.4 Casualty at Expiration of Lease................................. 38
8.5 Eminent Domain.................................................. 38
8.6 Rent After Casualty or Taking................................... 39
8.7 Temporary Taking................................................ 39
8.8 Taking Award.................................................... 39
9. Default............................................................... 39
9.1 Tenant's Default................................................ 39
9.2 Damages......................................................... 41
9.3 Cumulative Rights............................................... 42
9.4 Landlord's Self-help............................................ 42
9.5 Enforcement Expenses............................................ 43
9.6 Late Charges and Interest on
Overdue Payments................................................ 43
9.7 Landlord's Right to Notice and Cure............................. 43
10. Mortgagees' Rights.................................................... 44
10.1 Subordination................................................... 44
10.2 Prepayment of Rent not to Bind Mortgagee........................ 44
10.3 Tenant's Duty to Notify Mortgagee:
Mortgagee's Ability to Cure..................................... 44
10.4 Estoppel Certificates........................................... 45
11. Miscellaneous......................................................... 46
11.1 Recording of Lease.............................................. 46
11.2 Notices......................................................... 46
11.3 Successors and Limitation on Liability
of the Landlord................................................. 47
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11.4 Waivers by the Landlord......................................... 47
11.5 Acceptance of Partial Payments of Rent.......................... 48
11.6 Interpretation and Partial Invalidity........................... 48
11.7 Quiet Enjoyment................................................. 48
11.8 Brokerage....................................................... 49
11.9 Surrender of Premises and Holding Over ......................... 49
11.10 Landlord's Lien................................................. 50
11.11 Right of First Offer............................................ 51
EXHIBIT A: BASIC LEASE TERMS
EXHIBIT A-1: FLOOR PLAN OF THE PREMISES
EXHIBIT B: STANDARD SERVICES
EXHIBIT C: RULES AND REGULATIONS
EXHIBIT D: TENANT'S INITIAL IMPROVEMENTS
EXHIBIT D-1: TENANT'S PERSONAL PROPERTY
EXHIBIT D-2: SECURED PROPERTY
EXHIBIT E: CUSTODIAL SERVICES
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LEASE
1. Recitals and Definitions
1.1 Recitals. This Lease (this "Lease") is entered into as of April ___,
1994, by and between The Xxxxxxx Xxxxx Xxxxxx Laboratory, Inc. (the "Landlord"),
and Pharmaceutical Peptides, Inc. (the "Tenant").
In consideration of the mutual covenants herein set forth, the Landlord
and the Tenant do hereby agree to the terms and conditions set forth in this
Lease.
1.2 Definitions. The following Terms, have the meanings indicated or
referred to below.
"Additional Rent" means all charges payable by the Tenant pursuant to this
Lease other than Annual Fixed Rent, including without implied limitation; the
Tenant's Tax Expense Allocable to the Premises as provided in Section 3.2; the
Tenant's Operating Expenses Allocable to the Premises in accordance with Section
3.3; amounts payable for special services pursuant to Section 3.5; the
Landlord's share of any sublease or assignment proceeds pursuant to Section 6.8.
"Annual Fixed Rent" - See Exhibit A, and Sections 2.5 and 3.1.
"Building" means The Hill Building located at 0 Xxxxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxxxxx in which the Premises are located.
"Commencement Date" - See Exhibit A.
"Common Building Areas" means those portions of the Building which are not
part of the Premises and to which the Tenant has appurtenant rights pursuant to
Section 2.2.
"External Causes" means collectively, (i) Acts of God, war, civil
commotion, fire, flood or other casualty, strikes or other extraordinary labor
difficulties, shortages of labor or materials or equipment in the ordinary
course of trade, government order or regulations or other cause not reasonably
within the Landlord's control and not due to the fault or neglect of the
Landlord, and (ii)
any act, failure to act or neglect of the Tenant or the Tenant's servants,
agents, employees, licensees or any person claiming by, through or under the
Tenant, which in either case causes delays encountered by the Landlord in the
performance of any act required to be performed by the Landlord under this Lease
which are reasonably attributable thereto.
"Land" means the parcel of land owned by Landlord upon which the Building
is located.
"Landlord's Original Address" - See Exhibit A.
"Lease Year" means each period of one year during the Term commencing on
the Rent Commencement Date or on any anniversary thereof.
"Permitted Uses" - See Exhibit A.
"Premises" means that portion of the Building which the Tenant is leasing
at any given time pursuant to the provisions of this Lease. See Exhibit A and
Section 2.1.
"Property" means the Land and the Building.
"Tenant's Initial Improvements Monthly Amortization Amount" means the
quotient of (i) the unamortized cost of Tenant's Initial Improvements amortized
on a straight line basis over the Term at a rate of seven percent (7%) per
annum, divided by (ii) the number of months remaining in the unexpired Term
(including any partial month).
"Tenant's Original Address" - See Exhibit A.
"Term" - See Exhibit A.
2. Premises and Term
2.1 Premises. The Landlord hereby leases to the Tenant, and the Tenant
hereby leases from the Landlord, for the Term, the Premises. The Premises shall
exclude the entry and main lobby of the Building, first floor elevator lobby,
the common stairways and stairwells, elevators and elevator xxxxx, sprinklers,
mechanical rooms, loading and receiving areas, electric and telephone closets,
janitor closets, and pipes, ducts, conduits, wires and appurtenant fixtures and
equipment
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serving exclusively or in common other parts of the Building. If the Premises at
any time includes less than the entire rentable floor area of any floor of the
Building, the Premises shall also exclude the common corridors, vestibules,
elevator lobby and toilets located on such floor. The Tenant acknowledges that,
except as expressly set forth in this Lease, there have been no representations
or warranties made by or on behalf of the Landlord with respect to the Premises,
the Building or the Property or with respect to the suitability of any of them
for the conduct of the Tenant's activities. The Tenant acknowledges that the
Landlord is not obligated to provide any modifications to the Premises and that
the Tenant is taking the Premises in its "as is" condition. The taking of
possession of the Premises by the Tenant shall conclusively establish that the
Premises and the Building were at such time in satisfactory condition, order and
repair.
2.2 Appurtenant Rights. The Tenant shall have, as appurtenant to the
Premises, the nonexclusive right to use in common with others, subject to
reasonable rules of general applicability to occupants of the Building from time
to time made by the Landlord of which the Tenant is given notice: (i) the front
and rear entries and main lobby of the Building, two designated elevators, the
common stairways, mechanical rooms, electric and telephone closets and the
pipes, sprinklers, ducts, conduits, wires and appurtenant fixtures and equipment
serving the Premises in common with others, (ii) common walkways and driveways
necessary or reasonably convenient for access to the Building, (iii) access to
loading area and freight elevator with prior notice to the Landlord and subject
to rules and regulations then in effect, and (iv) if the Premises at any time
include less than the entire rentable floor area of any floor, the common
toilets, corridors, and elevator lobby of such floor. Subject to the provisions
of Section 5.3, Tenant shall have elevator access to the Premises at all times
during the Term, provided that Landlord may limit the number of elevators to be
in operation at times other than during customary business hours for the
Building.
2.3 Landlord's Reservations. The Landlord reserves the right from time to
time, without unreasonable interference with the Tenant's use: (i) to install,
use, maintain, repair, replace and relocate for service to the
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Premises and other parts of the Building, or either, pipes, ducts, conduits,
wires, chases, shafts, flues and appurtenant fixtures and equipment, wherever
located in the Premises or the Building, and (ii) to alter or relocate any
common facility, provided that substitutions are substantially equivalent or
better. In the event that Landlord's exercise of its rights under this Section
2.3 results in a material reduction in the usable area of the Premises, the
Annual Fixed Rent and the Rentable Floor Area of the Premises shall be adjusted
in proportion to the area of the Premises that Tenant can no longer use for the
conduct of its business; provided, however, that (i) Landlord's exercise of its
rights under this Section 2.3 shall not result in a reduction in the usable area
of the Premises in excess of one hundred (100) square feet, and (ii) the
location of any such reduction shall be subject to Tenant's reasonable approval.
2.4 Parking. The Landlord shall provide and the Tenant shall pay for
parking privileges for use by the Tenant's employees and business invitees and
visitors in accordance with Exhibit A. The Landlord shall have the right to
designate from time to time, and to change from time to time, the location on
the Land that shall be used for the parking of the Tenant's automobiles. The
Tenant's parking privileges will be on a nonexclusive basis. The Tenant agrees
that it and all persons claiming by, through and under it, shall at all times
abide by the reasonable rules and regulations promulgated by the Landlord with
respect to the use of the parking area provided by the Landlord pursuant to this
Lease, provided that the same rules apply to all tenants of the Building.
The Tenant shall pay to the Landlord for the Tenant's parking privileges
the monthly rent as provided in Exhibit A.
3. Rent and Other Payments
3.1 Annual Fixed Rent. Subject to the last paragraph of this Section 3.1,
from and after the Rent Commencement Date, the Tenant shall pay, without notice
or demand, monthly installments of one-twelfth (1/12th) of the Annual Fixed Rent
in effect and applicable to the Premises in advance for each full calendar month
of the Term and of the corresponding fraction of said one-twelfth (1/12th) for
any fraction of a calendar month at
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the beginning or end of the Term. The Annual Fixed Rent applicable to the
Premises during the Term shall be as set forth in Exhibit A.
Notwithstanding anything to the contrary set forth in Exhibit A, the
Annual Fixed Rent set forth therein is based upon the understanding that Tenant
shall not use or occupy that portion of the Premises containing approximately
9,797 square feet of Rentable Floor Area (the "Second Year Space") identified by
cross-hatching on Exhibit A-1 prior to the beginning of the second (2nd) Lease
Year. If Tenant uses or occupies the Second Year Space prior to the commencement
of the second (2nd) Lease Year, the Annual Fixed Rent in effect and applicable
to the Premises for the portion of the first (1st) Lease Year occurring from and
after the date of such use or occupancy shall be increased to the amount
applicable with respect to the second (2nd) Lease Year. Tenant shall immediately
deliver to Landlord written notice informing Landlord of Tenant's use or
occupancy of the Second Year Space. Tenant's performance of Tenant's Initial
Improvements (as hereinafter defined) in the Second Year Space, without
additional use or occupancy by Tenant, shall not be deemed "use" or "occupancy"
for purposes of determining Annual Fixed Rent pursuant to this Section 3.1.
The Annual Fixed Rent payable hereunder shall be abated for the period
beginning on the Rent Commencement Date and ending on the date that is six (6)
months following the Rent Commencement Date (the "Rent Abatement Period").
3.2 Real Estate Taxes. From and after the Rent Commencement Date, during
the Term, the Tenant shall pay to the Landlord, as Additional Rent, the Tenant's
Tax Expenses Allocable to the Premises (as such term is hereinafter defined), in
accordance with this Section 3.2. The terms used in this Section 3.2 are defined
as follows:
(a) "Tax Year" means the 12-month period beginning July 1 each year
or, if the appropriate governmental tax fiscal period shall begin on any date
other than July 1, such other date.
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(b) "The Tenant's Tax Expense Allocable to the Premises" means that
portion of the Landlord's Tax Expenses for a Tax year which bears the same
proportion thereto as the Rentable Floor Area of the Premises (from time to
time) bears to the Total Rentable Floor Area of the Building. In the event that
the Premises are improved to a standard which is higher than other portions of
the Property, the Tenant's Tax Expense allocable to the Premises shall include
such portion of the Real Estate Taxes on the Property with respect to any Tax
Year as is appropriate so that the Tenant bears the portion of the Real Estate
Taxes which are properly allocable to the Premises, as reasonably determined by
Landlord based on information with respect to the assessment process made
available by the assessing authorities; provided, however, that Landlord shall
make a similar allocation of Real Estate Taxes with regard to other tenants
whose premises are improved to a standard which is higher than other portions of
the Property so that Tenant is not allocated any portion of such Real Estate
Taxes.
(c) "The Landlord's Tax Expenses" with respect to any Tax Year means
the aggregate Real Estate Taxes on the Property with respect to that Tax Year,
reduced by any abatement receipts with respect to that Tax Year.
(d) "Real Estate Taxes" means all taxes and special assessments of
every kind and nature assessed by any governmental authority on the applicable
property and reasonable expenses of any proceedings for abatement of such taxes
including appeals thereof. The amount of special taxes or special assessments to
be included shall be limited to the amount of the installment (plus any interest
thereon) of such special tax or special assessment (which shall be payable over
the longest period permitted by law) required to be paid during the Tax Year in
respect of which such taxes are being determined. There shall be excluded from
such taxes all income, estate, succession, inheritance, excess profit, franchise
and transfer taxes; provided, however, that if at any time during the Term the
present system of ad valorem taxation of real property shall be changed so that
in lieu of the whole or any part of the ad valorem tax on real property, there
shall be assessed on the Landlord a capital levy or other tax on the gross rents
received with respect to the Property, or a Federal, State, Coun-
6
ty, Municipal, or other local income, franchise, excise or similar tax,
assessment, levy or charge (distinct from any now in effect) based, in whole or
in part, upon any such gross rents, then any and all of such taxes, assessments,
levies or charges, to the extent so based, shall be deemed to be included within
the term "Real Estate Taxes."
Payments by the Tenant on account of the Tenant's Tax Expenses Allocable
to the Premises shall be made monthly at the time and in the fashion herein
provided for the payment of Annual Fixed Rent and shall be in an amount equal to
one-twelfth (1/12) of the Tenant's Tax Expenses Allocable to the Premises for
the current Tax Year as reasonably estimated by the Landlord.
Not later than ninety (90) days after the Landlord's Tax Expenses are
determinable for the first Tax Year of the Term or fraction thereof and for each
succeeding Tax Year or fraction thereof during the Term, the Landlord shall
render the Tenant a statement in reasonable detail showing for the preceding
year or fraction thereof, as the case may be, real estate taxes on the Property,
and any abatements or refunds of such taxes, together with copies of the
applicable tax bills. Expenses incurred in obtaining any tax abatement or refund
may be charged against such tax abatement or refund before the adjustments are
made for the Tax Year. If at the time such statement is rendered it is
determined with respect to any Tax Year, that the Tenant has paid (i) less than
the Tenant's Tax Expenses Allocable to the Premises or (ii) more than the
Tenant's Tax Expenses Allocable to the Premises, then, in the case of (i) the
Tenant shall pay to the Landlord, as Additional Rent, within thirty (30) days of
such statement the amount of such underpayment and, in the case of (ii) the
Landlord shall credit the amount of such overpayment against the monthly
installments of the Tenant's Tax Expenses Allocable to the Premises and the
Annual Fixed Rent next thereafter coming due (or refund such overpayment if the
Term has expired and the Tenant has no further obligation to the Landlord).
To the extent that real estate taxes shall be payable to the taxing
authority in installments with respect to periods less than a Tax Year, the
statement to be furnished by the Landlord shall be rendered and payments
7
made on account of such installments. Notwithstanding the foregoing provisions,
no decrease in Landlord's Tax Expenses with respect to any Tax Year shall result
in a reduction of the amount otherwise payable by Tenant if and to the extent
said decrease is attributable to vacancies in the Building, rather than to a
reduction in the assessed value of the Property as a whole or a reduction in the
tax rate. Landlord shall, upon Tenant's request therefor, provide Tenant with
copies of all applicable tax bills, statements, records and the like, as well as
copies of Landlord's calculations and all other relevant information.
3.3 Operating Expenses. From and after the Rent Commencement Date, during
the Term the Tenant shall pay to the Landlord, as Additional Rent, the Tenant's
Operating Expenses Allocable to the Premises, as hereinafter defined, in
accordance with this Section 3.3. The terms used in this Section 3.3 are defined
as follows:
(a) "The Tenant's Operating Expenses Allocable to the Premises"
means that portion of the Operating Expenses for the Property which bears the
same proportion thereto as the Rentable Floor Area of the Premises (from time to
time) bears to the Total Rentable Floor Area of the Building.
(b) "Operating Expenses for the Property" means Landlord's cost of
operating, cleaning, maintaining and repairing the Property, the parking areas
for tenants in the Building and the roads, driveways and walkways for providing
access to the Building and such parking areas and shall include without
limitation, the cost of services on Exhibit B except as expressly excluded
hereunder, the cost of custodial services on Exhibit E, premiums for property,
liability and such other insurance as Landlord may carry with respect to the
Property; the amount of any commercially reasonable deductible from any
insurance claim of the Landlord; compensation and all fringe benefits, worker's
compensation insurance premiums and payroll taxes paid to, for or with respect
to all persons directly engaged in the operating, maintaining or cleaning of the
Property and such parking facilities at or below the level of building manager;
cost of steam, water, sewer, gas, oil, electricity, telephone and other utility
charges (excluding such utility charges either separately metered or separately
chargeable to tenants
8
for additional or special services); cost of providing HVAC; cost of building
and cleaning supplies; rental costs for equipment used in the operating,
cleaning, maintaining or repairing of the Property, or the applicable fair
market rental charges in the case of equipment owned by the Landlord, provided
that (i) if such equipment is also used at locations other than the Property, an
appropriate allocation of fair market rental charges is made, and (ii) Landlord
shall not recover from tenants of the Property an amount in excess of Landlord's
cost to purchase such equipment, which cost shall be amortized in accordance
with generally accepted accounting principles, together with interest on the
unamortized balance at the base lending rate announced by a major commercial
bank designated by the Landlord; cost of cleaning; cost of maintenance, repairs
and replacements; cost of snow removal; cost of landscape maintenance; security
services; payments under service contracts with independent contracts; the cost
of any capital improvement made for the purpose of reducing operating expenses
or to comply with applicable law, which cost shall be amortized in accordance
with generally accepted accounting principles, together with interest on the
unamortized balance at the base lending rate announced by a major commercial
bank designated by the Landlord, provided that the cost of any such improvements
made for the purpose of reducing operating expenses includable as Operating
Expenses for the Property in any given year shall be limited to the extent of
Landlord's reasonable estimate of the savings realized in such year; and all
other reasonable and necessary expenses paid in connection with the operation,
cleaning, maintenance and repair of the Property. Any of the Operating Expenses
for the Property that vary with occupancy and that are attributable to any part
of the Term will be adjusted by Landlord to the amount that Landlord reasonably
believes they would have been if the Building had been fully occupied. Operating
Expenses for the Property shall not include the following: the Landlord's Tax
Expense; cost of repairs or replacements (i) resulting from eminent domain
takings, (ii) to the extent reimbursed by insurance, or (iii) required, above
and beyond ordinary periodic maintenance, to maintain in serviceable condition
the major structural elements of the Building, including the roof, exterior
walls and floor slabs; replacement or contingency reserves; the cost of capital
improvements (other than as specifically provided for above); payment of any
debt obligations
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(other than as specifically provided for above); legal and other professional
fees for matters not relating to the normal administration and operation of the
Property; promotional, advertising, public relations or brokerage fees and
commissions paid in connection with services rendered for securing or renewing
leases; security services; transfer, gains, franchise, inheritance, estate and
income taxes imposed upon Landlord; the cost of installations and decorations
incurred in connection with preparing space for tenants, and any other
contribution by Landlord to the cost of tenant improvements; salaries, fringe
benefits, and other compensation of Landlord's personnel above the grade of
building manager; costs for which Landlord receives compensation through the
proceeds of insurance; ground rent, if any, or any other payments under any
superior lease; costs of furnishing services to any individual tenant of the
Building to the extent the same exceeds the services provided to Tenant
hereunder without additional charge to Tenant; costs incurred with respect to a
sale of all or any portion of the Property; advertising and promotional
expenses; financing and refinancing costs (other than as a component of the
amortization of certain capital expenses as specifically provided for above);
amounts otherwise includable in Operating Expenses for the Property but
reimbursed to Landlord directly by Tenant or other tenants; costs and expenses
paid to a corporation, entity or person related to Landlord to the extent that
such costs and expenses exceed the commercially competitive costs and expenses
for similar materials and services that would be charged in the absence of such
relationship; lease takeover costs incurred by Landlord in connection with
leases in the Building; to the extent that any costs includable in Operating
Expenses for the Property are incurred with respect to the Property and other
locations (including, without limitation, salaries, fringe benefits and other
compensation of Landlord's personnel who provide services to both the Property
and other locations), the reasonable percentage thereof which is properly
allocable to such other locations, the cost of any judgment, settlement or
arbitration award resulting from any liability of Landlord (other than a
liability or amounts otherwise includable in Operating Expenses for the Property
hereunder); costs relating to withdrawal, liability or unfunded pension
liability under the Multi-Employer Pension Plan
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Act or similar law; the cost of installing, operating and maintaining any
specialty facility (such as an observatory, broadcasting facility, luncheon
club, athletic or recreational club, cafeteria or dining facility); any interest
or penalty charges incurred by Landlord due to the violation of any law, except
to the extent caused by the default of Tenant hereunder; any compensation paid
to clerks, attendants or other persons in commercial concession operated by
Landlord; costs for acquiring or renting works of fine, investment grade
sculpture, paintings or other objects of art, provided that non-investment grade
objects of art purchase primarily to decorate the Property and costs of
maintaining any art shall be included in Operating Expenses for the Property.
Nothing contained in this Section 3.3 shall permit Landlord to include duplicate
charges in Operation Expenses. Payments by the Tenants on account of the
Tenant's Operating Expenses Charge shall be made monthly at the time and in the
fashion herein provided for the payment of Annual Fixed Rent. The amount so to
be paid to the Landlord shall be an amount from time to time reasonably
estimated by the Landlord to be sufficient to aggregate a sum equal to the
Tenant's Operating Expenses Charge for each calendar year; provided that
Landlord shall deliver to Tenant notice of such estimated amount accompanied by
a statement showing Landlord's estimated expenses.
Not later than ninety (90) days after the end of each calendar year or
fraction thereof during the Term or fraction thereof at the end of the Term, the
Landlord shall render the Tenant a statement in reasonable detail and according
to usual accounting practices certified by a representative of the Landlord,
showing for the preceding calendar year or fraction thereof, as the case may be,
the Operating Expenses for the Property and the Tenant's Operating Expenses
Allocable to the Premises. Said statement to be rendered to the Tenant also
shall show for the preceding calendar year or fraction thereof, as the case may
be, the amounts of Operating Expenses already paid by the Tenant. If at the time
such statement is rendered it is determined with resect to any calendar year,
that the Tenant has paid (i) less than the Tenant's Operating Expenses Allocable
to the Premises or (ii) more than the Tenant's Operating Expenses Allocable to
the Premises, then, in the case of (i) the Tenant shall pay to the Landlord, as
Additional Rent, within thirty (30)
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days of such statement the amounts of such underpayment and, in the case of (ii)
the Landlord shall credit the amount of such overpayment against the monthly
installments of the Tenant's Operating Expenses Allocable to the Premises and
the Annual Fixed Rent next thereafter coming due (or refund such overpayment if
the Term has expired and the Tenant has no further obligation to the Landlord).
3.4 Inspection and Audit. Upon not less than fifteen (15) days prior
notice to Landlord, but not more frequently than once each calendar year, Tenant
shall have the right to inspect and/or audit Landlord's books and records with
respect to any of the charges of Additional Rent, including the Real Estate
Taxes and the Operating Expenses for the Property, with respect to the
immediately preceding calendar year. In the event the inspection or audit
reveals no overstatement in the charges paid by Tenant, Tenant shall reimburse
Landlord for any out-of-pocket costs which Landlord incurs in connection with
obtaining the services of professionals to respond to Tenant's requests for
information and/or explanation in connection with such inspection or audit,
within thirty (30) days after notice form Landlord. The inspection or audit
shall be performed at Landlord's office. In the event Tenant, after completion
of such audit or inspection, shall dispute the correctness of Landlord's Annual
Statement of Operating Expenses for the Property in accordance with the terms of
this Lease, Tenant shall notify Landlord of such dispute on or before the date
which is twelve (12) months following the last day of the calendar year with
respect to which such expenses relate, specifying the particular respects in
which such statement is allegedly incorrect. In the event the inspection or
audit reveals that Tenant has paid more than Tenant's Tax Expense Allocable to
the Premises or Tenant's Operating Expenses allocable to the Premises, Landlord
shall credit the amount of such over-payment against the monthly installments of
Rent next thereafter coming due (or refund such overpayment if the Term has
expired and Tenant has no further obligation to Landlord).
3.5 Electricity. Electrical energy to the extent required for lighting and
electrical facilities, equipment, machinery, fixtures and appliances
substantially equivalent to the lighting and electrical facilities,
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equipment, machinery, fixtures and appliances of Landlord in the space in the
Building occupied by Landlord, and the space occupied by Landlord in neighboring
buildings, shall be provided to the Premises and Tenant shall pay, as Additional
Rent, the share of electrical energy charges paid by Landlord to the electric
utility which is allocable to the Premises. The electric energy required to
operate the air-handling units serving Tenants laboratories, to be constructed
as part of Tenant's Initial Work (including the exhaust system and system for
re-heat of make-up air), and any other mechanical equipment which may be
installed in the Premises by Tenant from time to time which consumes
significantly more electric energy than the mechanical equipment currently
contained therein, shall be separately check-metered and the cost of such
electric energy shall be payable by Tenant to Landlord as Additional Rent. In
the event that, after the date hereof, Landlord undertakes alterations or
additions to any space occupied by Landlord which includes the installation of
mechanical equipment which consumes significantly more electric energy than the
mechanical equipment currently contained therein, Landlord shall reasonably
allocate the increased electrical energy costs associated with such equipment
and exclude such cost from the aggregate energy expense proportionately
allocated to Tenant; provided, however, that the provisions of this sentence
shall not apply to any equipment installed as a replacement for existing
equipment.
3.6 Other Utility Charges. During the Term, the Tenant shall pay directly
to the provider of the service, all separately metered charges for steam, heat,
gas, electricity, fuel and other services and utilities furnished to the
Premises.
3.7 Above-Standard Services. If the Tenant requests and the Landlord
elects to provide any services to the Tenant in addition to those described in
Exhibit B, the Tenant shall pay to the Landlord, as Additional Rent, the amount
billed by Landlord for such services at Landlord's standard rates as from time
to time in effect. If Tenant has requested that such services be provided on a
regular basis, Tenant shall, if requested by Landlord, pay for such services at
the time and in the fashion in which Annual Fixed Rent under this Lease is
payable. Otherwise, Tenant shall pay for such additional services within thirty
(30) days after receipt of an invoice from
13
Landlord. Landlord shall have the right, at its election, to survey Tenant's
electricity usage in the Premises and/or install a check meter therein, in
either case at Tenant's expense, for purposes of monitoring above-standard
electricity usage. Tenant shall pay for such work within thirty (30) days after
receipt of an invoice from Landlord.
3.8 No Offsets. Annual Fixed Rent and Additional Rent shall be paid by the
Tenant without offset, abatement or deduction.
3.9 Security Services. During the Term and any extension thereof, the
Tenant shall pay Six Thousand Six Hundred Dollars ($6,600.00) per year for the
Security Services described on Exhibit B.
3.10 Net Lease. It is understood and agreed that this Lease is a Net Lease
and that the Annual Fixed Rent is absolutely net to Landlord, accepting only
Landlord's obligation to pay any debt service or ground rent on the Property, to
provide Landlord's services, and to pay the real estate taxes and operating
expenses which Tenant is not required to pay under this Lease.
4. Alterations.
4.1 Consent Required for Tenant's Alterations. The Tenant shall not make
alterations or additions to the Premises except in accordance with the building
standards from time to time in effect, with construction rules and regulations
from time to time promulgated by Landlord and applicable to Tenants in the
Building, and with plans and specifications therefor first approved by the
Landlord, which approval shall not be withheld unreasonably; provided, however,
that such alterations do not change the character of the Premises as laboratory
space, subject to the provisions of Section 11.10 with respect to Secured
Property (as hereinafter defined). The Landlord shall not be deemed unreasonable
for withholding approval of any alterations or additions which (i) might
adversely affect any structural element of the Building, (ii) involves or might
affect the roof of the Building (subject, however, to Section 4.7), any area or
element outside of the Premises, or any facility serving any area of the
Building outside of the Premises or any publicly accessible major interior
features of the Building, or (iii)
14
will require unusual expense to readapt the Premises to normal use unless the
Tenant first gives assurance acceptable to the Landlord that such readaptation
will be made prior to such termination without expense to the Landlord, in each
case as reasonably determined by the Landlord. Notwithstanding the foregoing,
Tenant may, without the prior written consent of Landlord, install or replace
wall coverings or floor coverings and otherwise decorate the Premises.
4.2 Ownership of Alternations. All alterations and additions ("Leasehold
Improvements") shall be part of the Building and owned by the Landlord, and
unless at the time of granting its consent therefor the Landlord shall specify
that the same must be removed, such Leasehold Improvements may not be removed
from the Premises without Landlord's written consent, which may be withheld in
Landlord's sole discretion. Nothing in the preceding sentence is intended to
derogate from Tenant's right to make alterations to the Premises as contemplated
under Section 4.1. The movable equipment and furnishings not attached to the
Premises, which are specified on Exhibit D-1, shall remain the property of the
Tenant and shall be removed by the Tenant upon termination or expiration of this
Lease. Tenant shall, in connection with removing any Leasehold Improvements or
personal property from the Premises which Tenant is permitted or required to
remove, repair any damage or injury caused by such removal.
4.3 Construction Requirements for Alterations. All construction work by
the Tenant shall be done in a good and workmanlike manner employing only good
materials and in compliance with all applicable laws and all lawful ordinances,
regulations and orders of Governmental authority and insurers of the Building.
The Landlord or Landlord's authorized agent may (but without any implied
obligation to do so) inspect the work of the Tenant at reasonable times and
shall give notice of observed defects. All of the Tenant's alterations and
additions and installation of furnishings shall be coordinated with any work
being performed by the Landlord and in such manner as to maintain harmonious
labor relations and not to damage the Building or interfere with Building
construction or operation and, except for installation of furnishings, shall be
performed by contractors or workmen first approved by the Landlord, which
approval the Landlord agrees not to unreasonably withhold or delay. The
15
Tenant, before starting any work, shall receive and comply with Landlord's
construction rules and regulations and shall cause Tenant's contractors to
comply therewith, shall secure all licenses and permits necessary therefor and
shall deliver to the Landlord a statement of the names of all its contractors
and subcontractors and the estimated cost of all labor and material to be
furnished by them and, in the event the cost of such alterations (excluding
decorations) shall exceed two hundred fifty thousand dollars ($250,000.00),
security satisfactory to the Landlord protecting the Landlord against liens
arising out of the furnishing of such labor and material; and cause each
contractor to carry worker's compensation insurance in statutory amounts
covering all the contractors' and subcontractors' employees and comprehensive
general public liability insurance with such limits as the Landlord may require
reasonably, but in no event less than $1,000,000 (individual)/$3,000,000
(occurrence) or in such other amounts as Landlord may reasonably require
covering personal injury and death and property damage (all such insurance to be
written in companies approved reasonably by the Landlord and insuring the
Landlord, such individuals and entities affiliated with the Landlord as the
Landlord may designate, and the Tenant as well as the contractors and to contain
a requirement for at least thirty (30) days' notice to the Landlord prior to
cancellation, nonrenewal or material change), and to deliver to the Landlord
certificates of all such insurance.
4.4 Payment for Tenant Alterations. The Tenant agrees to pay promptly when
due the entire cost of any work done on the Premises by the Tenant, its agents,
employees or independent contractors, and not to cause or permit any liens for
labor or materials performed or furnished in connection therewith to attach to
the Premises or the Property and promptly to discharge any such liens which may
so attach. If any such lien shall be filed against the Premises or the Property
and the Tenant shall fail to cause such lien to be discharged within thirty (30)
days after Tenant has notice of the filing thereof, the Landlord may cause such
lien to be discharged by payment, bond or otherwise, without investigation as to
the validity thereof or as to any offsets or defenses which the Tenant may have
with respect to the amount claimed; provided, however, that in the event
Landlord is in the process of selling, or obtaining a
16
loan secured in whole or in part by, the Property, Tenant shall be obligated to
cause such lien to be discharged within twenty (20) days after Tenant has notice
thereof. The Tenant shall reimburse the Landlord, as additional rent, for any
cost so incurred and shall indemnify and hold harmless the Landlord from and
against any and all claims, costs, damages, liabilities and expenses (including
attorneys' fees) which may be incurred or suffered by the Landlord by reason of
any such lien or its discharge.
4.5 Tenant's Initial Improvements. (a) Tenant shall, at Tenant's sole cost
and expense, make certain alterations and additions to the Premises, as more
particularly described in the scope of work attached as Exhibit D ("Tenant's
Initial Improvements"). Notwithstanding anything to the contrary contained
herein, Tenant's Initial Improvement shall include the construction of two (2)
mechanical and electrical rooms with all mechanical and electrical components
(including, without limitation, fans and air handling units) required for
Tenant's contemplated use of the Premises (including the Second Year Space);
provided, however, that the VAV boxes and other distribution and control
components necessary to distribute service to the Second Year Space need not be
included in Tenant's Initial Improvements. Tenant's Initial Improvements shall
be performed, in all respects, in accordance with Article 4 hereof. Tenant
agrees that Tenant's Initial Improvements will be performed in a manner so as to
minimize the disturbance to the occupants of other parts of the Building;
provided, however, that Tenant shall not be required to perform such work on an
overtime basis unless such work is to be performed in space occupied by another
tenant of the Building or Landlord, in which event such work shall be performed
on an overtime basis unless such other tenant or Landlord agrees with Tenant in
writing that Tenant may perform the required work during ordinary business
hours. Tenant shall use commercially reasonable efforts to complete Tenant's
Initial Improvements on or before September 15, 1994.
It is understood that of the services to be furnished by Landlord
referred to in Section 5.1 and Exhibit B hereof, Landlord shall not furnish any
cleaning services until Tenant commences occupancy of the Premises (exclusive of
the Second Year Space) for the conduct of its business. Tenant shall be
responsible for removal of
17
Tenant's refuse and rubbish during the period that Tenant's Initial Improvements
are in progress in the Premises.
(b) Tenant, at Tenant's expense, shall cause an architect approved
in writing by Landlord, which approval Landlord shall not unreasonably withhold
(the "Architect"), to prepare a set of plans, specifications and working
drawings (the "Plans and Specifications") for Tenant's Initial Improvements. As
used herein, the term "Plans and Specifications" shall include the MEP Plans and
Specifications (as hereinafter defined). Tenant shall also obtain Landlord's
prior written approval of any engineer who prepares engineering plans and
specifications comprising a portion of the Plans and Specifications, which
approval shall not be unreasonably withheld.
Landlord and Tenant hereby acknowledge that Tenant shall perform Tenant's
Initial Improvements on a so-called "fast-track" basis, whereby certain items of
construction shall be commenced before all Plans and Specifications have been
finalized. Notwithstanding the foregoing, the Plans and Specifications for the
mechanical, electrical and plumbing components of Tenant's Initial Improvements
(the "MEP Plans and Specifications") shall be submitted by Tenant to Landlord on
or prior to the date occurring forty-five (45) days form the date hereof for
Landlord's review. The MEP Plans and Specifications must be approved by Landlord
in writing prior to Tenant's commencement of Tenant's Initial Improvements
except for any demolition of the existing Leasehold Improvements. After the MEP
Plans and Specifications have been approved by Landlord, Tenant will, during the
course of construction, furnish Landlord with all other Plans and Specifications
as the same are prepared.
Tenant shall reimburse Landlord, within ten (10) days of demand, for any
out-of-pocket costs and expenses incurred by Landlord in connection with
Landlord's review of the Plans and Specifications. Tenants shall make such
changes to the Plans and Specifications as Landlord reasonably requires and
Tenant shall not commence the performance of any portion of Tenant's Initial
Improvements prior to obtaining Landlord's prior written approval of the Plans
and Specifications relating thereto, which shall not be unreasonably withheld.
Landlord's failure to either approve, reject or request additional
18
information regarding the Plans and Specification submitted by Tenant within
fifteen (15) days from Landlord's receipt thereof shall be deemed to be
Landlord's approval of said Plans and Specification. Any rejection by Landlord
shall be in writing, shall specify the reasons for such rejection and shall
outline the required modifications thereto which would render said Plans and
Specifications acceptable. After Landlord has approved Plans and Specifications,
Tenant shall promptly and diligently perform the Tenant's Initial Improvements
in accordance with such approved Plans and Specifications, and pursue said work
to completion. Tenant shall thereafter resubmit any modifications of or
additions to the approved Plans and Specifications for Landlord's approval,
which approval shall not be unreasonably withheld.
(c) Landlord shall not be deemed unreasonable for withholding
approval of any portion of the Plans and Specifications for Tenant's Initial
Improvements which (i) might materially adversely affect any structural element
of the Building, or (ii) involves or might affect the roof of the Building
(subject, however, to Section 4.7), any area or element outside of the Premises,
or any facility serving any area of the Building outside of the Premises or any
publicly accessible major interior features of the Building. Notwithstanding the
foregoing, Landlord acknowledges that nothing described in the scope of the work
set forth in Exhibit D presents grounds for Landlord's withholding approval on
the basis of any of clauses (i) or (ii) above, provided the same conforms to a
typical first-class laboratory build-out, consistent with similar facilities in
the metropolitan Boston area.
4.6 Security for Performance of Tenant's Initial Improvements.
(a) Prior to commencing the performance of Tenant's Initial
Improvements, or any demolition of the existing Leasehold Improvements, Tenant
shall deposit with Landlord as security for Tenant's timely performance and
completion of Tenant's Initial Improvements, a sum of money equal to the product
of (i) Eighty Dollars ($80.00), multiplied by (ii) the number of rentable square
feet of the Premises (in no event less than 15,000 rentable square feet) which
shall be improved by Tenant in connection with Tenant's Initial Improvements
(the
19
"Construction Security Deposit"). The Construction Security Deposit shall be
held by Landlord and disbursed or used in accordance with this Section 4.6. In
the event that either any Budget (as defined below) estimates the cost to
complete Tenant's Initial Improvements to be greater than the amount of the
Construction Security Deposit then held by Landlord, Tenant shall deposit with
Landlord additional sums such that the undisbursed amount of the Construction
Security Deposit will be sufficient, when disbursed to Tenant, to pay all
estimated unpaid costs required to complete Tenant's Initial Improvements,
including the payment of all so-called "soft" costs.
(b) Landlord shall invest the Construction Security Deposit in the
"Bank Account." In this Lease, the term "Bank Account" means a "money-market"
rate account with Bay Bank. Landlord shall have no responsibility for the rate
or amount of any interest earned on the Construction Security Deposit or for the
preservation of the principal of the Construction Security Deposit. All interest
earned on the Construction Security Deposit shall be deemed to be part of the
Construction Security Deposit and shall be held and/or disbursed in the same
manner as the Construction Security Deposit.
(c) Once Tenant has deposited the Construction Security Deposit with
Landlord, Tenant shall be permitted to commence with the demolition work
required to prepare the Premises for Tenant's Initial Improvements. Tenant shall
not, however, commence any construction of Tenant's Initial Improvements, and
Landlord shall not be required to disburse any portion of the Construction
Security Deposit, unless and until Landlord has first received the following
items:
(i) A detailed preliminary budget prepared by Architect representing
Architect's good faith estimate, based on Architect's best professional
judgement, specifying the anticipated costs of construction, fixturing and
equipping Tenant's Initial Improvements, as known to Architect at the time
(a "Budget"), accompanied by a written certification from an officer of
Tenant that, in connection with Architect's preparation of such Budget,
Tenant has provided Architect with all the relevant details of Tenant's
Initial Improvements known to Tenant as of the date of such Budget;
20
(ii) A detailed preliminary construction schedule (the "Schedule")
for Tenant's Initial Improvements prepared by Architect, representing
Architect's good faith estimate, based on Architect's best professional
judgement, showing the estimated periods of commencement and completion of
construction of Tenant's Initial Improvements and projected Requisitions
(as hereinafter defined), as known to Architect at the time, accompanied
by a written certification from an officer of Tenant that, in connection
with Architect's preparation of such Schedule, Tenant has provided
Architect with all the relevant details of Tenant's Initial Improvements
known to Tenant as of the date of such schedule;
(iii) A fully-executed contract between Tenant and the Architect, to
perform architectural services in connection with Tenant's Initial
Improvements, which contract contains Architect's agreement to perform
such services for Landlord subsequent to an Event of Default and
termination of the Lease upon the same terms and conditions of Architect's
agreement with Tenant;
(iv) A fully-executed contract between Tenant and Tenant's general
contractor who shall be performing Tenant's Initial Improvements on
Tenant's behalf (the "General Contractor"), to perform contracting
services in connection with Tenant's Initial Improvements, which contract
contains the General Contractor's agreement to perform such services for
Landlord subsequent to an Event of Default and termination of the Lease
upon the same terms and conditions of the General Contractor's agreement
with Tenant;
(v) The approved MEP Plans and Specifications; and
(vi) The building permit and all other permits and approvals
necessary for construction of Tenant's Initial Improvements.
(d) As long as Landlord has not terminated the Lease after an Event
of Default, Landlord shall make disbursements the Construction Security Deposit
to the
21
Architect, the General Contractor, any engineer, contractor, subcontractor, or
supplier who has performed work or supplied materials in connection with
Tenant's Initial Improvements upon written Requisition to Landlord by Tenant
directing such disbursement, in installments as Tenant's Initial Improvements
progress. The amount of each installment shall be an amount equal to the actual
cost of Tenant's Initial Improvements completed and in place, less (A) retainage
in the amount of 10% of the value of labor and materials covered by the
Requisition, and (B) the aggregate amount of all sums previously disbursed to
Tenant pursuant to this Section 4.6. Disbursements hereunder shall be made
solely for the payment of expenses properly incurred in the construction of
Tenant's Initial Improvements.
(e) All requisitions for payment of installments of the Construction
Security Deposit ("Requisitions") shall be submitted by Tenant to Landlord at
least fifteen (15) days before the date upon which the installment is desired
from Landlord accompanied by the following:
(i) A request by Tenant to Landlord directing Landlord to pay the
specified architect, engineer, contractor, subcontractor, or supplier the
amount(s) provided therein;
(ii) Copies of invoices and other documents, including a cost
breakdown, to support the amount requested in the Requisition;
(iii) Partial or final lien waivers from any architect, engineer,
contractor, subcontractor, or supplier, or receipts from the same, and any
applicable bills of sale, for work or supplies that were the subject of
any previous Requisition; and
(iv) A revised Budget, dated as of the date of such Requisition,
prepared by Architect, representing Architect's good faith estimate, based
on Architect's best professional judgment, specifying the anticipated
remaining costs of constructing, fixing and equipping Tenant's Initial
Improvements, as known to Architect at the time, accompanied by a written
certification from an officer of Tenant that, in connection with
Architect's preparation of
22
such revised Budget, Tenant has provided Architect with all of the
relevant details of Tenant's Initial Improvements known to Tenant as of
the date of such revised Budget.
Any request for any disbursement hereunder shall automatically constitute a
representation by Tenant that all conditions contained herein are then
satisfied, that, to the best of Tenant's knowledge, all Tenant's Initial
Improvements represented by the Requisition have been satisfactory completed in
accordance with Plans and Specifications approved by Landlord, that all checks
for amounts previously delivered by Landlord to Tenant have been paid to the
applicable architect, engineer, contractor, subcontractor, or supplier, and that
the undisbursed amount of the Construction Security Deposit will be sufficient,
when disbursed to Tenant, to pay all unpaid costs required to complete Tenant's
Initial Improvements, including the payment of all non-construction costs, based
upon the most recent revised Budget.
(f) Landlord shall not be required to disburse, and shall be
entitled to withhold, the final installment of the Construction Security
Deposit, representing the ten percent (10%) retainage provided for in subsection
(d), unless and until: (i) Tenant's Initial Improvements are completed to the
satisfaction of Landlord and Landlord receives a certificate from the Architect
that Tenant's Initial Improvements are completed; (ii) the final certificate of
occupancy has been issued by the appropriate governmental authority; (iii)
either (A) Landlord has received final lien waivers from all engineers,
architects, contractors, suppliers and subcontractors who performed services or
supplied materials in connection with Tenant's Initial Improvements, or (B) the
applicable statutory mechanic's or supplier's lien period has expired; and (iv)
Tenant has delivered to Landlord final as-built Plans and Specifications for
Tenant's Initial Improvements.
(g) In the event Landlord has terminated the Lease after an Event of
Default, Landlord shall have the right, without notice to Tenant, to make any
disbursement in whole or in part by payment directly to any engineer, architect,
contractor, subcontractor, or supplier for the account of the Tenant or for its
own account. The execution of this Lease by Tenant shall and hereby does con-
23
stitute an irrevocable direction and authorization to so disburse the
Construction Security Deposit. No further direction or authorization from Tenant
shall be necessary to warrant such direct payments and all such disbursement
shall satisfy pro tanto the obligations of the Landlord as fully as if made
directly to a third party pursuant to Tenant's direction contained in a
Requisition or otherwise, regardless of the disposition thereof made by such
architect, engineer, contractor, supplier or subcontractor.
4.7 Use of Roof. Landlord agrees that Tenant may, in connection with
Tenant's Initial Improvements, at Tenant's sole cost and expense, install on the
roof of the Building, and thereafter maintain, repair and operate one (1)
emergency generator, one (1) gas heater, one (1) chiller and exhaust vents, fans
and fan hoods (together with support structures, duct work, electrical lines and
related equipment, the "Roof Equipment"), provided and on condition that: (i)
the size and dimensions of the Roof Equipment as well as the location on the
roof for such installation shall be subject to Landlord's consent which may be
withheld in Landlord's sole discretion, exercised in good faith (provided
further that Landlord shall exercise reasonable judgment as long as the Roof
Equipment occupies no more than four hundred (400) square feet of roof space
designated by Landlord); (ii) no such equipment shall extend higher than the
parapet of the roof of the Building; (iii) the installation and position of such
Roof Equipment shall comply with all laws and legal requirements; (iv) the
installation of the Roof Equipment shall comply with all laws and legal
requirements; and (v) the Roof Equipment shall be maintained and kept in repair
by Tenant, at Tenant's sole cost and expense. Tenant covenants and agrees that
the Roof Equipment to be installed by Tenant shall not interfere with or
adversely affect any equipment, installations, lines or machinery of the
Building or any other tenant of the Building, or access thereto for maintenance,
repair or removal. Tenant shall not be obligated to pay any additional rental on
account of Tenant's use of the roof of the Building pursuant to this Section
4.7.
For the purpose of installing, servicing or repairing the Roof Equipment,
Tenant shall have access to the roof of the Building upon making prior
reasonable request of Landlord. All access by Tenant to the roof of the
24
Building shall be subject to the supervision and control of Landlord and to
Landlord's reasonable safeguards relating, without limitation, to the security
and protection of the Building, the Building equipment and installations and
equipment of other tenants of the Building as may be located on the roof of the
Building, and any roof warranty that may be in effect. Landlord shall have the
right to assign an outside consultant to be present during the duration of
Tenant's access to the rooftop and Tenant shall pay the Landlord's out-of-pocket
costs therefor as Additional Rent; provided, however, that in the event Tenant
engages United Engineers for structural engineering services, Tenant shall not
be required to pay any additional charges for Landlord to hire an outside
structural engineer to review and/or supervise such structural engineering work.
Tenant, at Tenant's sole cost and expense, agrees to promptly and
faithfully obey, observe and comply with all laws, ordinances, regulations,
requirements and rules of all duly constituted public authorities in any manner
affecting or relating to Tenant's use of the roof of the Building as to the
installation, repair, maintenance and operation of any Roof Equipment erected or
installed by Tenant pursuant to the provisions of this Section 4.7. Tenant, at
Tenant's sole cost and expense, shall secure and thereafter maintain all permits
and licenses required for the installation and operation of the Roof Equipment
erected or installed by Tenant pursuant to the provisions of this Section 4.7.
Upon the expiration of the Term or upon the earlier termination of this
Lease in any manner, if Landlord so directs by written notice to Tenant, Tenant
shall promptly remove the Roof Equipment as designated in such notice, at
Tenant's sole cost and expense. Tenant, at Tenant's sole cost and expense, shall
promptly repair any and all damage to the roof of the Building and to any other
part of the Building caused by or resulting from the installation, maintenance
and repair, operation or removal of the Roof Equipment erected or installed by
Tenant pursuant to the provisions of this Section 4.7 and restore said affected
areas to their condition as existed prior to the installation of such equipment.
Tenant covenants and agrees that all installations made by Tenant on the
roof of the Building or any other
25
part of the Building pursuant to the provisions of this Section 4.7 shall be at
the sole risk of Tenant, and neither Landlord nor Landlord's agent or employees
shall be liable for any damage or injury thereto caused in any manner, unless
the same shall result from the gross negligence or willful misconduct of
Landlord, its agents and employees.
Tenant will, and does hereby, indemnify and save harmless Landlord from
and against any and all claims, costs, demands, expenses, fees or suits arising
out accidents, damage, injury or loss to any and all persons and property, or
either, whomsoever or whatsoever resulting from or arising in connection with
the erection, installation, maintenance and operation and repair of the Roof
Equipment, except to the extent caused by the negligence of Landlord, or its
agents or employees. If any installations are negligently performed or if
Tenant's negligent acts or omissions should revoke, negate or in any manner
impair or limit any roof warranty or guaranty obtained by Landlord, then Tenant
shall reimburse Landlord for any loss or damage sustained or costs or expenses
incurred by Landlord as a result thereof.
Tenant shall not be permitted to assign or transfer all or any portion of
the rights granted to Tenant pursuant to this Section 4.7 unless Tenant assigns
this Lease to the party to whom such rights are assigned or transferred.
5. Responsibility for Condition of Building and Premises.
5.1 Maintenance of Building and Common Areas by Landlord. Except as
otherwise provided in Article 8, the Landlord shall make such repairs to the
structural elements of the Building, including the roof, exterior walls and
floor slabs as may be necessary to keep and maintain the same in serviceable
condition and maintain and make such repairs to the Common Building Areas as may
be necessary to keep them in good order, condition and repair, including without
limitation, the glass in the exterior walls of the Building, and all mechanical
systems and equipment serving the Building and not exclusively serving the
Premises. The Landlord shall further perform the services on Exhibit B hereto.
The Landlord shall in no event be responsible to the Tenant for any
26
condition in the Premises or the Building caused by an act or neglect of the
Tenant, or any invitee or contractor of the Tenant. Landlord's costs in
performing such services shall be reimbursed by the Tenant to the extent
provided in Section 3.3.
5.2 Maintenance of Premises by Tenant. The Tenant shall keep neat and
clean and maintain in good order, condition and repair the Premises and every
part thereof and all Building and mechanical equipment exclusively serving the
Premises, reasonable wear and tear excepted and further excepting those repairs
for which the Landlord is responsible pursuant to Section 5.1 and damage by fire
or other casualty and as a consequence of the exercise of the power of eminent
domain and shall surrender the Premises and all alterations and additions
thereto, at the end of the Term, in such condition, first removing all goods and
effects of the Tenant and, to the extent specified by the Landlord by notice to
the Tenant, all alterations and additions made by the Tenant and repairing any
damage caused by such removal and restoring the Premises and leaving them clean
and neat. The Tenant shall not permit or commit any waste, and the Tenant shall
be responsible for the cost of repairs which may be made necessary by reason of
damages to common areas in the Building by the Tenant, or any of the contractors
or invitees of the Tenant.
5.3 Delays in Landlord's Services. The Landlord shall not be liable to the
Tenant for any compensation or reduction of rent by reason of inconvenience or
annoyance or for loss of business arising from the necessity of the Landlord or
its agents entering the Premises for any purposes authorized in this Lease, or
for repairing the Premises or any portion of the Building. In case the Landlord
is prevented or delayed from making any repairs, alterations or improvements, or
furnishing any services or performing any other covenant or duty to be performed
on the Landlord's part, by reason of any External Cause, the Landlord shall not
be liable to the Tenant therefor, nor, except as expressly otherwise provided in
this Lease, shall the Tenant be entitled to any abatement or reduction of rent
by reason thereof, nor shall the same give rise to a claim in the Tenant's favor
that such failure constitutes actual or constructive, total or partial, eviction
from the Premises.
27
The Landlord reserves the right to stop any service or utility system when
necessary by reason of accident or emergency, until necessary repairs have been
completed; provided, however, that in each instance of stoppage, the Landlord
shall exercise reasonable diligence to eliminate the cause thereof. Except in
case of emergency repairs, the Landlord will give the Tenant reasonable advance
written notice of any contemplated stoppage and will use reasonable efforts to
avoid unnecessary inconvenience to the Tenant by reason thereof. In no event
shall the Landlord have any liability to the Tenant for the unavailability of
heat, light or any utility or service to be provided by the Landlord to the
extent that such unavailability is caused by External Causes.
6. Tenant Covenants
The Tenant covenants during the Term and for such further time as the
Tenant occupies any part of the Premises:
6.1 Permitted Uses. The Tenant shall occupy the Premises only for the
Permitted Uses, and shall not injure or deface the Premises or the Property, nor
permit in the Premises any auction sale. The Tenant shall give written notice to
the Landlord of any materials on OSHA's right to know list or which are subject
to regulation by any other federal, state, municipal or other governmental
authority and which the Tenant intends to have present at the Premises. The
Tenant shall comply with all requirements of public authorities and of the Board
of Fire Underwriters in connection with methods of storage, use and disposal of
all such materials. The Tenant shall not permit in the Premises any nuisance, or
the emission from the Premises of any objectionable noise, odor or vibration,
nor use or devote the Premises or any part thereof for any purpose which is
contrary to law or ordinance or liable to invalidate or increase premiums
(unless Tenant pays the entire amount of such increase) for any insurance on the
Building or its contents or liable to render necessary any alteration or
addition to the Building, nor commit or permit any waste in or with respect to
the Premises. The Tenant shall not generate, store or dispose of any oil, toxic
substances, hazardous wastes, or hazardous materials (each a, "Hazardous
Material"), or permit the same in or on the Premises or any parking areas
provided for under this Lease, except in compliance
28
with all applicable laws relating to such Hazardous Materials. The Tenant shall
not dump, flush or in any way introduce any Hazardous Materials into septic,
sewage or other waste disposal systems serving the Building generally or any
parking areas provided for under this Lease. The Tenant will indemnify the
Landlord and its successors and assigns against all claims, loss, cost, and
expenses including attorneys' fees, incurred as a result of any contamination of
the Property with Hazardous Materials by the Tenant or Tenant's contractors,
licensees, invitees, agents, servants or employees.
6.2 Laws and Regulations. The Tenant, at Tenant's sole cost and expense,
shall comply with all federal, state and local laws, rules, regulations,
ordinances, executive orders, Federal guidelines, and similar requirements in
effect from time to time (collectively "Laws") relating to the use, condition or
occupancy of the Premises (including, without limitation, City of Cambridge
ordinances with respect to animal experiments and hazardous waste and relating
to the Building if necessitated by Tenant's improvements or manner of use
therein. Except to the extent that compliance is Tenant's responsibility
hereunder, Landlord shall be responsible for maintaining the Building in
compliance with Laws to the extent that failure to so maintain the Building
would (i) imminently endanger persons or property, (ii) prevent access to the
Premises, or (iii) prevent Tenant from performing Tenant's Initial Improvements;
provided; however, that Tenant shall be solely responsible for maintaining the
Building in compliance with laws to the extent necessitated by Tenant's Initial
Improvements.
6.3 Rules and Regulations. The Tenant shall not obstruct in any manner any
portion of the Property not hereby leased; shall not permit the placing of any
signs, curtains, blinds, shades, awnings, aerials or flagpoles, or the like,
visible from outside the Premises; and shall comply with all reasonable rules
and regulations of uniform application to all occupants of the Building now or
hereafter made by the Landlord, of which the Tenant has been given notice, for
the care and use of the Property. The Landlord shall not be liable to the Tenant
for the failure of other occupants of the Building to conform to any such rules
and regulations. The initial rules and regulations are set forth in Exhibit C.
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6.4 Safety Compliance. The Tenant shall keep the Premises equipped with
all safety appliances required by law or ordinance or any other regulations of
any public authority because of any non-office use made by the Tenant and to
procure all licenses and permits so required by Laws because of such use and, if
requested by the Landlord, do any work so required because of such use, it being
understood that the foregoing provisions shall not be construed to broaden in
any way the Tenant's Permitted Uses.
6.5 Landlord's Entry. The Tenant shall permit the Landlord and its agents,
after reasonable notice except in the case of emergencies, to enter the Premises
at all reasonable hours for the purpose of inspecting or of making repairs to
the same, monitoring Tenant's compliance with the requirements and restrictions
set forth in this Lease, and for the purpose of showing the Premises to
prospective purchasers and mortgagees at all reasonable times and to prospective
tenants provided that in connection with such entry, Tenant may provide
procedures reasonably designed so as not to jeopardize Tenant's trade secrets,
proprietary technology or critical business operations.
6.6 Floor Load. The Tenant shall not place a load upon any floor in the
Premises exceeding the floor load per square foot of area which such floor was
designed to carry and which is allowed by law; and not move any safe, vault or
other heavy equipment in, about or out of the Premises except in such manner and
at such time as the Landlord shall in each instance authorize. The Tenant's
machines and mechanical equipment shall be placed and maintained by the Tenant
at the Tenant's expense in settings sufficient to absorb or prevent vibration or
noise that may be transmitted to the Building structure or to any other space in
the Building.
6.7 Personal Property Tax. The Tenant shall pay promptly when due all
taxes which may be imposed upon personal property (including, without
limitation, trade fixtures and equipment) in the Premises to whomever assessed.
6.8 Assignment, Subleases or other Transfers. The Tenant shall not assign,
mortgage, pledge, hypothecate or otherwise transfer this Lease or any of
Tenant's
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interest therein, or sublet (which term, without limitation, shall include
granting of concessions, licenses and the like) the whole or any part of the
Premises without, in each instance, having first received the consent of the
Landlord. However, Landlord shall not unreasonably withhold consent to a
proposed assignment of this Lease or sublease of the Premises. Any assignment or
sublease made without such consent shall be void. The Landlord shall not be
deemed to be unreasonable in withholding its consent to any proposed assignment
or subletting by the Tenant based on any of the following factors:
(a) The business of the proposed occupant is not consistent with the
image and character which the Landlord desires to promote for the building.
(b) The proposed assignment or subletting could adversely affect the
ability of the Landlord and its affiliates to lease space in the Building
including leasing other space to any proposed assignee or subtenant.
Whether or not the Landlord consents to any assignment or subletting, the
Tenant named herein shall remain fully and primarily liable for the obligations
of the tenant hereunder, including, without limitation, the obligation to pay
Annual Fixed Rent and Additional Rent provided under this Lease.
The Tenant shall give the Landlord notice of any proposed sublease or
assignment, specifying the provisions of the proposed subletting or assignment,
including (i) the name and address of the proposed subtenant or assignee, (ii) a
copy of the proposed subtenant's or assignee's most recent annual financial
statement, (iii) all of the terms and provisions upon which the proposed
subletting or assignment is to be made and such other information concerning the
proposed subtenant or assignee as the Tenant has obtained in connection with the
proposed subletting or assignment. The Tenant shall reimburse the Landlord
promptly for reasonable legal and other expense incurred by the Landlord in
connection with any request by the Tenant for consent to any assignment or
subletting. If this Lease is assigned, or if the Premises or any part thereof is
sublet or occupied by anyone other than the Tenant, the Landlord may, at any
time and from time to time, collect rent and other charg-
31
es from the assignee, sublessee or occupant and apply the net amount collected
to the rent and other charges herein reserved, but no such assignment,
subletting, occupancy or collection shall be deemed a waiver of the prohibitions
contained in this Section 6.8 or the acceptance of the assignee, sublessee or
occupant as a tenant, or a release of the Tenant from the further performance by
the Tenant of covenants on the part of the Tenant herein contained. The Tenant
shall pay to the Landlord any amounts the Tenant receives from any subtenant or
assignee as rent, additional rent or other forms of compensation or
reimbursement other than those which are less than or equal to the then due and
payable proportionate monthly share of Annual Fixed Rent, Additional Rent and
all other monies due to Landlord pursuant to this Lease (allocable in the case
of a sublease to that portion of the Premises being subleased). The consent by
the Landlord to an assignment or subletting shall not be construed to relieve
the Tenant from obtaining the express consent in writing of the Landlord to any
further assignment or subletting.
Without affecting any of its other obligations under this Lease, Tenant
will pay Landlord, as Additional Rent, all sums or other economic consideration
(deducting therefrom all brokerage commissions and legal fees, and deducting on
a monthly basis therefrom the Tenant's Initial Improvements Monthly Amortization
Amount) that (i) in the case of an assignment, are received by Tenant for such
assignment, and (ii) in the case of a subletting, are received by Tenant for
such subletting, whether or not denominated rentals under the sublease, to the
extent the same exceeds the sums which Tenant is obligated to pay Landlord under
this Lease (prorated, if a sublease of less than the entire Rentable Floor Area
of the Premises, on the basis of the portion of the Premises subject to such
sublease). The provisions of this paragraph shall not apply to a transfer to a
Permitted Transferee (as hereinafter defined).
Landlord may elect, within thirty (30) days of receipt of written notice
from Tenant of any proposed assignment or sublease, prior to approving or
disapproving any proposed assignment or sublease, to repossess the space
proposed to be assigned or sublet. Landlord may thereafter lease the repossessed
space in such a manner as the landlord may in its sole discretion determine. In
32
the event Landlord elects to repossess the space as provided above, then all of
the Tenant's rights and obligations hereunder with respect to the repossessed
space shall cease and shall be of no further force and effect. The provisions of
this paragraph shall not apply to a transfer to a Permitted Transferee.
The foregoing to the contrary notwithstanding, Tenant shall have the right
to assign this Lease or sublet the entire Premises (but not a portion thereof),
and Landlord shall give its consent to such an assignment or sublease, if the
proposed assignee or subtenant is (each of the following, a "Permitted
Transferee") (i) an entity owning one hundred percent (100%) of Tenant; (ii) an
entity into (or with which) Tenant is merged or consolidated; (iii) an entity
into which substantially all of Tenant's assets are transferred; (iv) an entity
under common control with Tenant; or (v) an entity all of whose ownership
interests shall, at the time, be owned directly by Pharmaceutical Peptides,
Inc., provided that:
(a) such merger, consolidation or transfer of assets is for a good
business purpose and not a device for the transfer of Tenant's interest in this
Lease; and
(b) the affiliate, subsidiary, parent, assignee or successor entity
has a net worth at least equal to the net worth of Tenant immediately prior to
such merger, consolidation or transfer, as evidenced by financial statements
prepared and certified by independent reputable certified public accountants.
In any case where Landlord is required not to unreasonably withhold its
consent, provided Landlord has withheld its consent in good faith, Tenant's sole
remedy shall be injunctive relief.
7. Indemnity and Insurance
7.1 Indemnity. To the maximum extent this agreement may be made effective
according to law, the Tenant agrees to indemnify, defend and save harmless the
Landlord from and against all claims, loss, or damage of whatever nature arising
from any breach by Tenant of any obligation of Tenant under this Lease or from
any act, omission or negligence of the Tenant, or the Tenant's contractors,
licensees, invitees, agents, servants or
33
employees, or arising from any accident, injury or damage whatsoever caused to
any person or property, occurring after the date that possession of the Premises
is first delivered to the Tenant and until the end of the Term and thereafter,
so long as the Tenant is in occupancy of any part of the Premises, in or about
the Premises or arising from any accident, injury or damage occurring outside
the Premises but within the Building, on the Land, within any adjacent area
maintained by Landlord or any individual or entity affiliated with Landlord,
where such accident, injury or damage results from an act or omission on the
part of the Tenant or the Tenant's agents or employees, licensees, invitees,
servants or contractors, provided that the foregoing indemnity shall not include
any cost or damage arising from any act, omission or negligence of the Landlord,
or the Landlord's contractors, licensees, invitees, agents, servants or
employees. This indemnity and hold harmless agreement shall include indemnity
against attorneys' fees and all other costs, expenses and liabilities incurred
or in connection with any such claim or proceeding brought thereon, and the
defense thereof.
Throughout the Term, Landlord shall defend and save Tenant harmless and
indemnify Tenant from and against all bodily or personal injury, loss, claims or
damage to any personal property which results from the negligence or wilful
misconduct of Landlord, its employees, agents, or contractors.
7.2 Liability Insurance. The Tenant agrees to maintain in full force from
the date upon which the Tenant first enters the Premises for any reason,
throughout the Term, and thereafter, so long as the Tenant is in occupancy of
any part of the Premises, a policy of comprehensive general liability insurance
under which the Landlord (and any individuals or entities affiliated with the
Landlord, and any holder of a mortgage on the Property of whom the Tenant is
notified by the Landlord) and the Tenant are named as insureds, and under which
the insurer provides a contractual liability endorsement insuring against all
cost, expense and liability arising out of or based upon any and all claims,
accidents, injuries and damages described in Section 7.1, in the broadest form
of such coverage from time to time available. Each such policy shall be
noncancellable and nonamendable (to the extent that any proposed amendment
reduces the limits or the scope of the insurance required
34
in this Lease) with respect to the Landlord and such ground lessors and
mortgagees without thirty (30) days' prior notice to the Landlord and such
mortgagees and, at the election of Landlord, either a certificate of insurance
or a duplicate original policy, together with evidence of payment of premiums
therefor reasonably satisfactory to Landlord, shall be delivered to the Landlord
on or before the Commencement Date (and at least thirty (30) days prior to the
expiration of any such policy of required insurance). The minimum limits of
liability of such insurance as of the Commencement Date shall be Three Million
Dollars ($3,000,000.00) for combined bodily injury (or death) and damage to
property (per occurrence), and from time to time during the Term such limits of
liability shall be increased to reflect such higher limits as are customarily
required pursuant to new leases of space in the Boston-Cambridge area with
respect to similar properties.
7.3 Personal Property at Risk. The Tenant agrees that all of the
furnishings, fixtures, equipment, effects and property of every kind, nature and
description of the Tenant and of all persons claiming by, through or under the
Tenant which, during the continuance of this Lease or any occupancy of the
Premises by the Tenant or anyone claiming under the Tenant, may be on the
Premises or elsewhere in the Building or on the Lot shall be at the sole risk
and hazard of the Tenant, and if the whole or any part thereof shall be
destroyed or damaged by fire, water or otherwise, or by the leakage or bursting
of water pipes, steam pipes, or other pipes, by theft or from any other cause,
no part of said loss or damage is to be charged to or be borne by the Landlord,
except that the Landlord shall in no event be exonerated from any liability to
the Tenant or to any person, for any injury, loss, damage or liability caused by
any negligence or willful misconduct of Landlord or Landlord's agents,
employees, or contractors.
7.4 Waiver of Subrogation. Any insurance carried by either party with
respect to the Building, Land, Premises, parking facilities or any property
therein or occurrences thereon shall, without further request by either party,
if it can be so written without additional premium, or with an additional
premium which the other party elects to pay, include a clause or endorsement
denying to the insurer rights of subrogation against the
35
other party to the extent rights have been waived by the insured prior to
occurrence of injury or loss. Each party, notwithstanding any provisions of this
Lease to the contrary, hereby waives any rights of recovery against the other
for injury or loss, including, without limitation, injury or loss caused by
negligence of such other party, due to hazards covered by insurance containing
such clause or endorsement to the extent of the indemnification received
thereunder.
7.5 Landlord's Insurance. During the Term, Landlord shall carry and
maintain the following coverages of insurance (collectively, "Landlord's
Insurance"): (i) Fire and extended coverage insurance covering the Building and
Tenant's Leasehold Improvements to the extent of the full replacement value
thereof; and (ii) commercial general liability insurance in amounts Landlord
reasonably deems prudent. Notwithstanding anything to the contrary contained
herein, Tenant shall pay to Landlord the amount of Landlord's property and
casualty insurance premiums which are allocable to Tenant's leasehold
improvements, which amount shall not be included in Operating Expenses.
8. Casualty and Eminent Domain
8.1 Restoration Following Casualties. If, during the Term, the Building or
Premises shall be damaged by fire or casualty, subject to the exceptions and
limitations provided below, the Landlord shall proceed promptly to exercise
reasonable efforts to restore the Building and Premises (including Tenant's
Leasehold Improvements, but excluding all moveable equipment and furnishings not
attached to the Premises and Tenant's other personal property) to substantially
the condition thereof at the time of such damage, but the Landlord shall not be
responsible for delay in such restoration which may result from any cause beyond
the reasonable control of the Landlord. The Landlord shall have no obligation to
expend in the reconstruction of the Building and Premises more than the actual
amount of insurance proceeds made available by its insurer. Any restoration of
the Building or the Premises shall be altered to the extent necessary to comply
with then current laws and applicable codes.
36
8.2 Landlord's Termination Election. If in the opinion of the Landlord the
Building has been so damaged that it is appropriate for the Landlord to raze or
substantially alter the Building, then the Landlord may terminate this Lease by
giving notice to the Tenant within sixty (60) days after the date of the
casualty or such later date as is required to allow the Landlord a reasonable
time to make either such determination; provided, however, that Landlord may not
terminate this Lease pursuant to this paragraph unless Landlord similarly
terminates the leases of other tenants covering at least fifty percent (50%) of
the Building (excluding from such calculation space in the Building occupied by
Landlord). Any such termination shall be effective on the date designated in
such notice from the Landlord, but in any event, not later than sixty (60) days
after such notice, and if no date is specified, effective upon the delivery of
such notice.
8.3 Tenant's Termination Election. Unless Landlord has earlier advised
Tenant of Landlord's election to terminate this Lease pursuant to Section 8.2,
or has earlier commenced to restore the Premises and maintain this Lease in
effect pursuant to Section 8.1, the Tenant shall have the right after the
expiration of sixty (60) days after any casualty which materially impairs a
material portion of the Premises to give a written notice to the Landlord
requiring the Landlord within ten (10) days thereafter to either (a) exercise or
waive any right of the Landlord to terminate this Lease pursuant to Section 8.2
as a result of such casualty, or (b) give written notice that Landlord intends
to restore the Premises pursuant to Section 8.1 and if the Landlord fails to
give timely response to the Tenant's notice, the Tenant shall be entitled to
give notice to the Landlord terminating this Lease. Where the Landlord is
obligated to exercise reasonable efforts to restore the Premises, unless such
restoration is completed within two hundred seventy (270) days from the date of
the casualty or taking, such period to be subject, however, to extension where
the delay in completion of such work is due to External Causes, the Tenant shall
have the right to terminate this Lease at any time after the expiration of such
two hundred seventy (270) days (as extended) period until the restoration is
substantially completed, such termination to take effect as of the date of the
Tenant's notice.
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8.4 Casualty at Expiration of Lease. If the Premises shall be damaged by
fire or casualty in such a manner that the Premises cannot, in the ordinary
course, reasonably be expected to be repaired within one hundred and twenty
(120) days from the commencement of repair work and such damage occurs within
the last eighteen (18) months of the Term (as the same may have been extended
prior to such fire or casualty), either party shall have the right, by giving
notice to the other not later than sixty (60) days after such damage, to
terminate this Lease, whereupon this Lease shall terminate as of the date of
such notice.
8.5 Eminent Domain. Except as hereinafter provided, if the Premises, or
such portion thereof as to render the balance (if reconstructed to the maximum
extent practicable in the circumstances) unsuitable for the Tenant's purposes,
shall be taken by condemnation or right of eminent domain, the Landlord or the
Tenant shall have the right to terminate this Lease by notice to the other of
its desire to do so, provided that such notice is given not later than thirty
(30) days after the effective date of such taking. If so much of the Building
shall be so taken that the Landlord determines that it would be appropriate to
raze or substantially alter the Building, the Landlord shall have the right to
terminate this Lease by giving notice to the Tenant of the Landlord's desire to
do so not later than thirty (30) days after the effective date of such taking;
provided, however, that Landlord may not terminate this Lease pursuant to this
paragraph unless Landlord similarly terminates the leases of other tenants
covering at least fifty percent (50%) of the Building (excluding from such
calculation space in the Building occupied by Landlord).
Should any part of the Premises be so taken or condemned during the Term,
and should this Lease be not terminated in accordance with the foregoing
provisions, the Landlord agrees to use reasonable efforts to put what may remain
of the Premises into proper condition for use and occupation as nearly like the
condition of the Premises prior to such taking as shall be practicable, subject,
however, to applicable laws and codes then in existence and to the availability
of sufficient proceeds from the eminent domain taking.
38
8.6 Rent After Casualty or Taking. If the Premises shall be damaged by
fire or other casualty, except as provided below, the Annual Fixed Rent and
Additional Rent shall be justly and equitably abated and reduced according to
the nature and extent of the loss of use thereof suffered by the Tenant. If the
fire or other casualty was caused by Tenant, such abatement shall be made only
to the extent that Landlord is fully compensated therefore by any lost rent
insurance. In the event of a taking which permanently reduces the area of the
Premises, a just proportion of the Annual Fixed Rent shall be abated for the
remainder of the Term.
8.7 Temporary Taking. In the event of any taking of the Premises or any
part thereof for a temporary use not in excess of six (6) months, (i) this Lease
shall be and remain unaffected thereby and Annual Fixed Rent and Additional Rent
shall not xxxxx, and (ii) the Tenant shall be entitled to receive for itself
such portion or portions of any award made for such use with respect to the
period of the taking which is within the Term.
8.8 Taking Award. Except as otherwise provided in Section 8.7, the
Landlord shall have and hereby reserves and excepts, and the Tenant hereby
grants and assigns to the Landlord, all rights to recover for damages to the
Building and the Land, and the leasehold interest hereby created, and to
compensation accrued or hereafter to accrue by reason of such taking, damage or
destruction, as aforesaid, and by way of confirming the foregoing, the Tenant
hereby grants and assigns to the Landlord, all rights to such damages or
compensation. Nothing contained herein shall be construed to prevent the Tenant
from prosecuting in any condemnation proceedings a claim for relocation
expenses, provided that such action shall not affect the amount of compensation
otherwise recoverable by the Landlord from the taking authority pursuant to the
preceding sentence.
9. Default
9.1 Tenant's Default. Each of the following shall constitute an Event of
Default:
(a) Failure onto the part of Tenant to pay the Annual Fixed Rent on
or before the date on which the same shall become due and payable, if such
condition
39
continues for five (5) days after notice from Landlord that the same is due
(except that the giving of such written notice of default, and the cure period
which follows, shall no longer be required as a condition to the occurrence of
an Event of Default on the third or any further occasion of monetary default
occurring within a twelve (12) consecutive month period).
(b) Failure on the part of the Tenant to pay the Additional Rent or
other charges for which provision is made herein on or before the date on which
the same become due and payable, if such condition continues for ten (10) days
after notice from the Landlord that the same are delinquent (except that the
giving of such written notice of default, and the cure period which follows,
shall no longer be required as a condition to the occurrence of an Event of
Default on the third or any further occasion of monetary default occurring
within a twelve (12) consecutive month period).
(c) Failure on the part of the Tenant to perform or observe any
other term or condition contained in this Lease if the Tenant shall not cure
such failure within thirty (30) days after notice from the Landlord to the
Tenant thereof, provided that in the case of breaches of obligations under this
Lease which are susceptible to cure but cannot be cured within thirty (30) days
through the exercise of due diligence, so long as the Tenant commences such cure
within thirty (30) days, such breach remains susceptible to cure, and the Tenant
diligently pursues such cure, such breach shall not be deemed to create an Event
of Default.
(d) The taking of the estate hereby created on execution or by other
process of law; or a judicial declaration that the Tenant is bankrupt or
insolvent according to law; or any assignment of the property of the Tenant for
the benefit of creditors; or the appointment of a receiver, guardian,
conservator, trustee in bankruptcy or other similar officer to take charge of
all or any substantial part of the Tenant's property by a court of competent
jurisdiction; or the filing of an involuntary petition against the Tenant under
any provisions of the bankruptcy act now or hereafter enacted if the same is not
dismissed within one hundred twenty (120) days; the filing by the Tenant of any
voluntary petition
40
for relief under provisions of any bankruptcy law now or hereafter enacted.
If an Event of Default shall occur, then, in any such case, whether or not
the Term shall have begun, the Landlord lawfully may, immediately or at any time
thereafter, give notice to the Tenant specifying the Event of Default and this
Lease shall come to an end on the date specified therein as fully and completely
as if such date were the date herein originally fixed for the expiration of the
Lease Term, and the Tenant will then quit and surrender the Premises to the
Landlord, but the Tenant shall remain liable as hereinafter provided.
9.2 Damages. In the event that this Lease is terminated, the Tenant
covenants to pay to the Landlord all the sums ("Periodic Payments") and perform
all the obligations which the Tenant covenants in this Lease to pay and to
perform in the same manner and to the same extent and at the same time as if
this Lease had not been terminated (in calculating the amounts to be paid by the
Tenant under the foregoing covenant, the Tenant shall be credited with the net
proceeds of any rent obtained by reletting the Premises, after deducting all the
Landlord's expenses in connection with such reletting, including, without
limitation, all repossession costs, brokerage commissions, fees for legal
services and expenses of preparing the Premises for such reletting). Suit or
suits for the recovery of such damages, or any installments thereof, may be
brought by Landlord from time to time at its election, and nothing contained
herein shall be deemed to require Landlord to postpone suit until the date when
the Term would have expired if the Lease had not been so terminated or had
Landlord not re-entered the Premises.
Landlord may, at its election made at any time after this Lease is
terminated, require Tenant to pay an amount (the "Lump Sum Payment") equal to
the excess, if any, of the discounted present value of the total rent reserved
for the remainder of the Term over the then discounted present fair rental value
of the Premises for the remainder of the Term (in calculating the rent reserved,
there shall be included, in addition to the Annual Fixed Rent and all Additional
Rent, the value of all other considerations agreed to be paid or performed by
the Tenant over the remainder of the Term). Upon payment of the Lump Sum
41
Payment, Tenant shall not thereafter be responsible for Periodic Payments.
Landlord may (i) relet the Premises, or any part or parts thereof, for a
term or terms which may, at the Landlord's option, exceed or be equal to or less
than the period which would otherwise have constituted the balance of the Term,
and may grant such concessions and free rent as the Landlord in its reasonable
commercial judgment considers advisable or necessary to relet the same and (ii)
make such alterations, repairs and improvements in the Premises as the Landlord
in its reasonable commercial judgment considers advisable or necessary to relet
the same. No action of the Landlord in accordance with the foregoing or failure
to relet or to collect rent under reletting shall operate to release or reduce
Tenant's liability. The Landlord shall be entitled to seek to rent other
properties of the Landlord prior to reletting the Premises.
9.3 Cumulative Rights. The specific remedies to which the Landlord may
resort under the terms of this Lease are cumulative and are not intended to be
exclusive of any other remedies or means of redress to which it may be lawfully
entitled in case of any breach or threatened breach by the Tenant of any
provisions of this Lease. In addition to the other remedies provided in this
Lease, the Landlord shall be entitled to the restraint by injunction of the
violation or attempted or threatened violation of any of the covenants,
conditions or provisions of this Lease or to a decree compelling specific
performance of any such covenants, conditions or provisions. Nothing contained
in this Lease shall limit or prejudice the right of the Landlord to prove for
and obtain in proceedings for bankruptcy, insolvency or like proceedings by
reason of the termination of this Lease, an amount equal to the maximum allowed
by any statute or rule of law in effect at the time when, and governing the
proceedings in which, the damages are to be proved, whether or not the amount be
greater, equal to, or less than the amount of the loss or damages referred to
above.
9.4 Landlord's Self-help. After an Event of Default, the Landlord shall
have the right, but not the obligation, upon reasonable, but in no event less
than thirty (30) days' notice to the Tenant (except in case of emergency in
which case no notice need be given), to
42
perform such obligation. The Landlord may exercise its rights under this Section
without waiving any other of its rights or releasing the Tenant from any of its
obligations under this Lease.
9.5 Enforcement Expenses. The Tenant shall promptly reimburse the Landlord
for all costs and expenses, including without limitation legal fees, incurred by
the Landlord in exercising and enforcing its rights under this Lease following
an Event of Default on the part of the Tenant, together with interest at the
Default Interest Rate (as hereinafter defined) from the date paid by the
Landlord.
9.6 Late Charges and Interest on Overdue Payments. In the event that any
payment of Annual Fixed Rent or Additional Rent shall remain unpaid for a period
of two (2) business days following notice by the Landlord to the Tenant that
such payment is overdue, there shall become due to the Landlord from the Tenant,
as Additional Rent and as compensation for the Landlord's extra administrative
costs in investigating the circumstances of late rent, a late charge of two
percent (2%) of the amount overdue. In addition, any Annual Fixed Rent and
Additional Rent not paid when due shall bear interest from the date due to the
Landlord until paid at the variable rate (the "Default Interest Rate") equal to
the higher of (i) the rate at which interest accrues on amounts not paid when
due under the terms of the Landlord's financing for the Building, as from time
to time in effect, and (ii) two percent (2%) per annum in excess of the rate
from time to time announced by The First National Bank of Boston as its base
rate, or if such rate can no longer be determined, two percent (2%) per annum in
excess of the rate from time to time announced by a major commercial bank
selected by the Landlord as its base or prime rate; provided, however that if
the payment of any interest due hereunder would subject Landlord to any penalty
under applicable law, then the payments due hereunder shall be automatically
reduced to what they would be at the highest rate authorized under applicable
law.
9.7 Landlord's Right to Notice and Cure. The Landlord shall in no event be
in default in the performance of any of the Landlord's obligations hereunder
unless and until the Landlord shall have failed to per-
43
form such obligations within thirty (30) days, or such additional time as is
reasonably required to correct any such default not susceptible to being cured
within such thirty (30) day period (provided that Landlord diligently pursues
such cure), after notice by the Tenant to the Landlord expressly specifying
wherein the Landlord has failed to perform any such obligation.
10. Mortgagees' Rights
10.1 Subordination. This Lease shall, at the election of the holder of any
mortgage on the Property, be subject and subordinate to any and all mortgages on
the Property, so that the lien of any such mortgage shall be superior to all
rights hereby or hereafter vested in the Tenant. Tenant's agreement to
subordinate this Lease to any and all mortgages on the Property is conditioned
upon the execution and delivery of a non-disturbance agreement by such mortgagee
in such mortgagee's then-customary form. Landlord represents and warrants that,
on the date hereof, the Property is not encumbered by a mortgage.
10.2 Prepayment of Rent not to Bind Mortgagee. No Annual Fixed Rent,
Additional Rent, or any other charge payable to the Landlord shall be paid more
than thirty (30) days prior to the due date thereof under the terms of this
Lease and payments made in violation of this provision shall (except to the
extent that such payments are actually received by a mortgagee or ground lessor)
be a nullity as against such mortgagee or ground lessor and the Tenant shall be
liable for the amount of such payments to such mortgagee or ground lessor.
10.3 Tenant's Duty to Notify Mortgagee: Mortgagee's Ability to Cure. No
act or failure to act on the part of the Landlord which would entitle the Tenant
under the terms of this Lease, or by law, to be relieved of the Tenant's
obligations to pay Annual Fixed Rent or Additional Rent hereunder or to
terminate this Lease, shall result in a release or termination of such
obligations of the Tenant or a termination of this Lease unless (i) the Tenant
shall have first given written notice of the Landlord's act or failure to act to
the Landlord's mortgagees or ground lessors of record, if any, of whose identity
and address the Tenant shall have been given notice, specifying the act or
failure to act on the part
44
of the Landlord which would give basis to the Tenant's rights; and (ii) such
mortgagees or ground lessors, after receipt of such notice, have failed or
refused to correct or cure the condition complained of within the grace period
provided to Landlord hereunder.
10.4 Estoppel Certificates. The Tenant shall from time to time, upon not
less than fifteen (15) days' prior written request by the Landlord, execute,
acknowledge and deliver to the Landlord a statement in writing certifying to the
Landlord or an independent third party, with a true and correct copy of this
Lease attached thereto, (i) that this Lease is unmodified and in full force and
effect (or, if there have been any modifications, that the same is in full force
and effect as modified and stating the modifications); (ii) that the Tenant has
no knowledge of any defenses, offsets or counterclaims against its obligations
to pay the Annual Fixed Rent and Additional Rent and to perform its other
covenants under this Lease (or if there are any defenses, offsets, or
counterclaims, setting them forth in reasonable detail); (iii) that there are no
known uncured defaults of the Landlord or the Tenant under this Lease (or if
there are known defaults, setting them forth in reasonable detail); (iv) the
dates to which the Annual Fixed Rent, Additional Rent and other charges have
been paid; (v) that the Tenant has accepted, is satisfied with, and is in full
possession of the Premises, including all improvements, additions, and
alterations thereto required to be made by Landlord under the Lease; (vi) that
the Landlord has satisfactorily complied with all of the requirements and
conditions precedent to the commencement of the Term of the Lease as specified
in the Lease; (vii) the Term, the Commencement Date, and any other relevant
dates, and that the Tenant has been in occupancy since the Commencement Date and
paying rent since the specified dates; (viii) that no monetary or other
considerations, including, but not limited to, rental concessions for Landlord,
special tenant improvements or Landlord's assumption of prior lease obligations
of Tenant have been granted to Tenant by Landlord for entering into the Lease,
except as specified; (ix) that Tenant has no notice of a prior assignment,
hypothecation, or pledge of rents or of the Lease; (x) that the Lease represents
the entire agreement between Landlord and Tenant (unless there are amendments,
in which case all amendments shall be specified); and (xi) such other matters
with respect to the Tenant and
45
this Lease as the Landlord may reasonably request. On the Commencement Date,
Tenant shall, at the request of Landlord, promptly execute, acknowledge and
deliver to Landlord a statement in writing that the Commencement Date has
occurred, that the Annual Fixed Rent has begun to accrue (if true) and that
Tenant has taken occupancy of the Premises. Any statement delivered pursuant to
this Section may be relied upon by any prospective purchaser or mortgagee of the
Property and shall be binding on the Tenant.
Landlord shall from time to time, upon not less than fifteen (15) days'
prior request by Tenant, execute, acknowledge and deliver to Tenant a statement
in writing certifying to Tenant or an independent third party, that (i) this
Lease has not been modified and is in full force and effect or, if there has
been a modification of this Lease, that this Lease is in full force and effect
as modified, stating such modifications, (b) the dates to which the Annual Fixed
Rent and Additional Rent have been paid, (c) whether or not, to the knowledge of
the Landlord, Tenant is in default, and, if Tenant is in default, stating the
nature of such default, (d) whether or not there are then existing any set-offs
or defenses against the enforcement of any of the obligations hereunder upon the
part of Landlord or Tenant, as the case may be, to be performed or complied with
(and, if so, specifying the same).
11. Miscellaneous
11.1 Recording of Lease. The Tenant agrees not to record this Lease, and
any attempted or actual recording thereof by Tenant shall be an Event of Default
hereunder. At Tenant's request, the parties shall execute and deliver a notice
of lease in form and substance reasonably satisfactory to both parties for the
purpose of recording, but said notice of lease shall not in any circumstance be
deemed to modify or to change any of the provisions of this Lease.
11.2 Notices. Whenever any notice, approval, consent, request, election,
offer or acceptance is given or made pursuant to this Lease, it shall be in
writing. Communications and payments shall be addressed, if to the Landlord, at
the Landlord's Original Address as set forth in Exhibit A or at such other
address as may have been
46
specified by prior notice to the Tenant, with a copy sent to Xxxxxx X. Xxxxx,
P.C., Xxxxxxx, Procter & Xxxx, Xxx Xxxxxxxx Xxxxx, Xxxxxx, XX 00000, and if to
the Tenant prior to the Commencement Date, at the Tenant's Original Address, and
after the Commencement Date, at the Premises, or at such other place as may have
been specified by prior notice to the Landlord, with a copy of default notices
sent to Xxxx X. Xxxx, Esq., Skadden, Arps, Slate, Xxxxxxx & Xxxx, Xxx Xxxxxx
Xxxxxx, Xxxxxx, XX 00000, and a copy of all notices to Xxxxx Xxxxxx, Ph.D at the
Premises. Any communication so addressed shall be deemed duly given on the
earlier of (i) the date received or (ii) on the third business day following the
day of mailing if mailed by registered or certified mail, return receipt
requested. If the Landlord by notice to the Tenant at any time designates some
other person to receive payments or notices, all payments or notices thereafter
by the Tenant shall be paid or given to the agent designated until notice to the
contrary is received by the Tenant from the Landlord.
11.3 Successors and Limitation on Liability of the Landlord. 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 the original landlord named herein and each
successor landlord shall be liable only for obligations accruing during the
period of its ownership. The obligations of the Landlord shall be binding only
upon the assets of the Landlord consisting of the ownership of the Property but
not upon other assets of the Landlord and neither the Tenant, nor anyone
claiming by, under or through the Tenant, shall be entitled to obtain any
judgment creating personal liability on the part of the Landlord or enforcing
any obligations of the Landlord against any assets of the Landlord other than
the ownership of the Property. In no event shall any partner, officer, director,
trustee, stockholder, employee or beneficiary of Landlord be held to have any
personal liability for satisfaction of any claims or judgments that Tenant may
have against Landlord.
11.4 Waivers by the Landlord. The failure of the Landlord or the Tenant to
seek redress for violation of, or to insist upon strict performance of, any
covenant or condition of this Lease, shall not be deemed a waiver of such
violation nor prevent a subsequent act, which would
47
have originally constituted a violation, from having all the force and effect of
an original violation. Neither the receipt by the Landlord, nor the payment by
Tenant, of Annual Fixed Rent or Additional Rent with knowledge of the breach of
any covenant of this Lease shall be deemed a waiver of such breach. No provision
of this Lease shall be deemed to have been waived by the Landlord, unless such
waiver be in writing signed by the Landlord. No consent or waiver, express or
implied, by Landlord or Tenant to or of any breach of any agreement or duty
shall be construed as a waiver or consent to or of any other breach of the same
or any other agreement or duty.
11.5 Acceptance of Partial Payments of Rent. No acceptance by the Landlord
of a lesser sum than the Annual Fixed Rent and Additional Rent then due shall be
deemed to be other than a partial installment of such rent due, nor shall any
endorsement or statement on any check or any letter accompanying any check or
payment as rent be deemed an accord and satisfaction, and the Landlord may
accept such check or payment as without prejudice to the Landlord's right to
recover the balance of such installment or pursue any other remedy in this Lease
provided. The delivery of keys to any employee of the Landlord or to the
Landlord's agent or any employee thereof shall not operate as a termination of
this Lease or a surrender of the Premises.
11.6 Interpretation and Partial Invalidity. If any term of this Lease, or
the application thereof to any person or circumstances, shall to any extent be
invalid or unenforceable, the remainder of this Lease, or the application of
such term to persons or circumstances other than those as to which it is invalid
or unenforceable, shall not be affected thereby, and each term of this Lease
shall be valid and enforceable to the fullest extent permitted by law. The
titles of the Articles are for convenience only and not to be considered in
construing this Lease. This Lease contains all of the agreements of the parties
with respect to the subject matter thereof and supersedes all prior dealings
between them with respect to such subject matter.
11.7 Quiet Enjoyment. So long as the Tenant pays Annual Fixed Rent and
Additional Rent, performs all other Tenant covenants of this Lease and observes
all conditions hereof, the Tenant shall peaceably and quietly
48
have, hold and enjoy the Premises free of any claims by, through or under the
Landlord.
11.8 Brokerage. Landlord and Tenant each represent and warrant to the
other that it has had no dealings with any broker or agent other than Xxxxx
Xxxxxx Xxxxx & Partners ("Broker") in connection with this Lease and shall
indemnify and hold harmless the other from claims for any brokerage commission
other than that due Broker arising out of such party's action.
11.9 Surrender of Premises and Holding Over. The Tenant shall surrender
possession of the Premises on the last day of the Term and the Tenant waives the
right to any notice of termination or notice to quit. The Tenant covenants that
upon the expiration or sooner termination of this Lease, it shall, without
notice, deliver up and surrender possession of the Premises in the same
condition in which the Tenant has agreed to keep the same during the continuance
of this Lease and in accordance with the terms hereof, normal wear and tear
excepted, first removing therefrom all goods and effect of the Tenant and any
leasehold improvements Landlord specified for removal pursuant to Section 4.2,
and repairing all damage caused by such removal. Upon the expiration of this
Lease or if the Premises should be abandoned by the Tenant, or this Lease should
terminate for any cause, and at the time of such expiration, vacation,
abandonment or termination, the Tenant or Tenant's agents, subtenants or any
other person should leave any property of any kind or character on or in the
Premises, the fact of such leaving of property on or in the Premises shall be
conclusive evidence of intent by the Tenant, and individuals and entities
deriving their rights through the Tenant, to abandon such property so left in or
upon the Premises, and such leaving shall constitute abandonment of the
property. Landlord shall have the right and authority without notice to the
Tenant or anyone else, to remove and destroy, or to sell or authorize dispose of
such property, or any part thereof, without being in any way liable to the
Tenant therefor and the proceeds thereof shall belong to the Landlord as
compensation for the removal and disposition of such property.
If the Tenant fails to surrender possession of the Premises upon the
expiration or sooner termination of this Lease, the Tenant shall pay to
Landlord, as rent for
49
any period after the expiration or sooner termination of this Lease an amount
equal to one hundred fifty percent (150%) the Annual Fixed Rent and the
Additional Rent required to be paid under this Lease as applied to any period in
which the Tenant shall remain in possession. Acceptance by the Landlord of such
payments shall not constitute a consent to a holdover hereunder or result in a
renewal or extension of the Tenant's rights of occupancy. Such payments shall be
in addition to and shall not affect or limit the Landlord's right of re-entry,
Landlord's right to collect such damages as may be available at law, or any
other rights of the Landlord under this Lease or as provided by law.
11.10 Landlord's Lien. To secure the payment of all Annual Fixed Rent and
Additional Rent, and the performance of all other obligations hereunder, Tenant
hereby grants to Landlord a first lien and security interest on the personal
property listed on Exhibit D-2 (the "Secured Property"), and also upon all
proceeds of any insurance that may accrue to Tenant by reason of the destruction
or damage of the Secured Property. Tenant will not remove the Secured Property
from the Premises without the prior written consent of Landlord, which consent
shall not be unreasonably withheld; provided, however, that Tenant replaces such
item(s) of Secured Property with replacement item(s) of equal or greater value
and that any such removal does not change the character of the Premises as
laboratory space nor have a detrimental effect on the value thereof. Tenant
waives the benefit of all exemption laws in favor of this lien and security
interest. Upon the occurrence of an Event of Default hereunder, this lien may be
foreclosed with or without court proceedings by private or public sale, so long
as Landlord gives Tenant at least ten (10) days notice of the time and place of
such sale. Landlord will have the right to become the purchaser if it is the
highest bidder at the sale. Contemporaneously with its execution of this Lease,
and if requested by Landlord after such extension, Tenant will execute and
deliver to Landlord Uniform Commercial Code financing statements in form and
substance sufficient (upon proper filing) to perfect the security interest
granted in this Section 11.10. If requested Landlord, Tenant will also execute
and deliver to Landlord, within five (5) days of Landlord request, any Uniform
Commercial Code continuation statements in form and substance sufficient to
reflect any
50
proper amendment of, modification in, or extension of the security interest
granted in this Section 11.10. The parties hereto agree that this Lease
constitutes a security agreement and that the recordation of a notice of this
Lease shall constitute a fixture filing pursuant to and under the Massachusetts
Uniform Commercial Code. The provisions of this Section 11.10 shall survive the
expiration or earlier termination of this Lease.
11.11 Right of First Offer. Unless an Event of Default has occurred and is
continuing, before entering into a lease with a third party unaffiliated with
Landlord for any other space in the Building ("Additional Space"), Landlord will
notify Tenant of the availability of Additional Space and the principal terms
and conditions, including the rent and other economic terms (the "Rental Terms,"
and, together with such other principal terms and conditions, the "offered
Terms") on which Landlord would be willing to lease the Additional Space to
Tenant ("Landlord's Offer"). Tenant may, by notice to Landlord given without
thirty (30) days of being given Landlord's Offer, either:
(i) give Landlord notice that Tenant has elected to lease the
Additional Space on the Offered Terms ("Tenant's Acceptance"), or
(ii) give Landlord notice rejecting Landlord's Offer, but containing
a counteroffer ("Tenant's Counteroffer") which sets forth the Rental Terms
on which Tenant would be willing to lease the Additional Space, but
otherwise on the Offered Terms (the "Counteroffer Terms"), or
(iii) give Landlord notice rejecting Landlord's Offer ("Tenant's
Rejection"), but not containing a Tenant's Counteroffer which fulfills the
conditions of clause (ii) above; Tenant's failure to timely give either
Tenant's Acceptance or Tenant's Counteroffer shall constitute Tenant's
Rejection.
If Tenant timely gives Tenant's Acceptance with respect to Landlord's
Offer, then Tenant shall execute a lease for the Additional Space, on
substantially the same terms and conditions of this Lease, except as modified to
incorporate the Offered Terms and such other matters as
51
are reasonably required by Landlord, within five (5) days of being delivered an
execution counterpart thereof by Landlord. Tenant's failure to timely do so
shall constitute a revocation of Tenant's Acceptance and all of the terms
relating to Tenant's Rejection shall apply instead. If Tenant timely executes
such a lease, Landlord will execute the same.
If Tenant timely makes a Tenant's Counteroffer to Landlord's Offer, then:
(a) At any time during the period commencing on the date that
Landlord receives Tenant's Counteroffer and ending on the date that is one
hundred fifty (150) days thereafter, Landlord may, by notice to Tenant (the "Put
Notice") require Tenant to lease the Additional Space on the Counteroffer Terms.
If Landlord timely gives Tenant a Put Notice, then Tenant shall execute a lease
for the Additional Space, on substantially the same terms and conditions of this
Lease, except as modified to incorporate the Counteroffer Terms and such other
matters as are reasonably required by Landlord, within five (5) days of being
delivered an execution counterpart thereof by Landlord. Tenant's failure to
timely do so shall constitute a revocation of Tenant's Counteroffer and all of
the terms relating to Tenant's Rejection shall apply instead. If Tenant timely
executes such a lease, Landlord will execute the same.
(b) In addition to Landlord's right to give Tenant a Put Notice,
Landlord shall have a period (the "Market Period") of one (1) year from the date
that is the earlier to occur of (x) the date that is thirty (30) days following
Landlord's delivery to Tenant of Landlord's Offer or (y) the date that Landlord
receives Tenant's Counteroffer, to lease the Additional Space on any terms and
conditions; provided, however, that before Landlord can lease the Additional
Space on Rental Terms more favorable than those contained in Tenant's
Counter-offer, Landlord shall offer to lease the Additional Space to Tenant at
such more favorable Rental Terms. Landlord's offer to Tenant as aforesaid shall
constitute a Landlord's Offer for all purposes of this Section 11.11, except
that Tenant must respond within ten (10) days, rather than within the thirty
(30) day period set forth in the first paragraph of this Section 11.11.
52
(c) If Landlord has not leased the Additional Space on or prior to
the expiration of the Market Period, then in the event Landlord desires to lease
the Additional Space to a third party unaffiliated with Landlord, Landlord must
again comply with the conditions of this Section 11.11.
If Tenant either gives notice of, or is deemed to have given, Tenant's
Rejection, Tenant shall have no further rights to lease the Additional Space in
question.
This right of first offer to lease the Additional Space is personal to
Pharmaceutical Peptides, Inc. and is not transferable upon any assignment of
this Lease except to a Permitted Transferee.
53
IN WITNESS WHEREOF, the parties hereto have entered into this Lease
on the date and year first above written.
The Xxxxxxx Xxxxx Xxxxxx
Laboratory, Inc.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxxx
------------------------------
Title: Treasurer
------------------------------
Pharmaceutical Peptides, Inc.
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
------------------------------
Title: Chief Executive Officer
------------------------------
54
EXHIBIT A
Basic Lease Terms
Annual Fixed Lease Year 1: $195,000.00 ($13.00 per square
Rent for the foot of Rentable Floor Area
Initial Term: with respect to 15,000 square
feet of Rentable Floor Area,
and $0.00 per square foot of
Rentable Floor Area with
respect to 9,797 square feet of
Rentable Floor Area), subject
to the rent abatement provided
pursuant to Section 3.1.
Lease Year 2: $258,680.50 ($13.00 per square
foot of Rentable Floor Area
with respect to 15,000 rentable
square feet of Rentable Floor
Area, and $6.50 per square foot
of Rentable Floor Area with
respect to 9,797 square feet of
Rentable Floor Area).
Lease Years 3-5: $322,361.00 ($13.00 per square
foot of Rentable Floor Area
with respect to 24,797 square
feet of Rentable Floor Area).
Lease Years 6-10: $347,158.00 ($14.00 per square
foot of Rentable Floor Area
with respect to 24,797 square
feet of Rentable Floor Area).
Term: Beginning on the Commencement Date and ending on the date
this is ten (10) years following the Rent Commencement
Date.
55
Landlord's The Xxxxxxx Xxxxx Xxxxxx Laboratory, Inc.
Original Address: 000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx, Treasurer
Premises: The entire fifth (5th) floor of the Hill Building, Xxx
Xxxxxxxxx Xxxxxx, Xxxxxxxxx, XX containing 24,797 square
feet of Rentable Floor Area, a floor plan of which is
attached as Exhibit A-1.
Parking Privileges: During the Term, Landlord shall provide up to a maximum
of twenty-five (25) parking permits, and Tenant shall
pay One Hundred Dollars ($100.00) per month per parking
permit. If Tenant initially desires fewer than twenty
five (25) parking spaces, Tenant may elect to take fewer
parking spaces. Tenant shall then be permitted to request
additional parking spaces, up to the maximum of
twenty-five (25) in the aggregate; provided, however,
that Tenant shall not be permitted to give up any parking
spaces previously requested.
Permitted Uses: Laboratories and offices and accessory uses supporting
the foregoing.
Commencement April ____, 1994
Date:
Rent Commencement The date that is the earlier to occur of:
Date: (i) the date when Tenant, any employee of Tenant, or any
person holding by, through or under Tenant first occupies
the Premises for the conduct of business; or (ii)
September 15, 1994.
Tenant's Original Pharmaceutical Peptides, Inc.
Address: c/x Xxxxx Xxxxxx Xxxxx & Partners
Xxx Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxx, Ph.D.
Total Rentable 171,599 square feet
Floor Area of
Building
56
EXHIBIT A-1
FLOOR PLAN OF THE PREMISES
EXHIBIT B
STANDARD SERVICES
The following services are provided by the Landlord:
A. Regular maintenance of interior, exterior and park ing lot landscaping.
B. Regular maintenance, sweeping and snow removal of building exterior areas
such as roadways, driveways, sidewalks, parking areas and courtyard
paving.
C. Exterior and interior cleaning of all exterior windows twice per year.
D. Daily, weekday maintenance of hallways, passenger elevators, common area
bathrooms and main lobby.
E. Periodic cleaning of stairwells and freight elevators.
F. Daily, weekday rubbish removal of all tenant trash from Premises.
G. Maintenance and repair of base building surveillance and alarm equipment,
mechanical, electrical, plumbing and life safety systems.
H. Building surveillance and alarm system operation and live monitoring
service to building standard specifications.
I. Heating and air conditioning to maintain the Premises at comfortable
temperatures shall be provided between the hours of 8:00 AM to 6:00 PM
Monday through Friday. In other hours, air conditioning will be made
available for $20 per hour. Heating will be provided at comfortable
temperatures in other reasonable hours without additional charge.
J. Normal elevator service from the freight and passenger elevators during
the same hours and on a reduced basis as demand may require at other
hours.
K. Utilities for all interior common areas and exterior building and parking
lighting.
L. Custodial Services pursuant to Exhibit E.
M. Hot water for lavatory purposes and cold water for drinking, lavatory and
toilet purposes.
EXHIBIT C
RULES AND REGULATIONS
DEFINITIONS
Wherever in these Rules and Regulations the word "Tenant" is used, it shall be
taken to apply to and include the Tenant and his agents, employees, invitees,
licensees, contractors, any subtenants and is to be deemed of such number and
gender as the circumstances require. The word "Premises" is to be taken to
include the space covered by the Lease. The word "Landlord" shall be taken to
include the employees and agents of Landlord. Other capitalized terms used but
not defined herein shall have the meanings set forth in the Lease.
GENERAL USE OF BUILDING
A. Space for admitting natural light into any public area or tenant
space of the Building shall not be covered or obstructed by Tenant
except in a manner approved by Landlord.
B. Toilets, showers and other like apparatus shall be used only for the
purpose for which they were constructed. Any and all damage from
misuse shall be borne by Tenant.
C. No sign, advertisement, notice or the like, shall be used in the
Building by Tenant other than within the Premises and not visible
from outside the Premises. If Tenant violates the foregoing,
Landlord may remove the violation without liability and may charge
all costs and expenses incurred in so doing to Tenant.
D. Tenant shall not throw or permit to be thrown anything out of
windows. In addition, Tenant shall not do or permit anything which
will obstruct, injure, annoy or interfere with other tenants or
those having business with them, or affect any insurance rate on the
Building or violate any provision of any insurance policy on the
Building.
E. No additional locks or similar devices shall be attached to any door
or window and no keys other than those provided by the Landlord
shall be made for any door unless permitted by Landlord. Upon
termination of this lease or of the Tenant's possession, the Lessee
shall surrender all keys to the Premises and shall explain to the
Landlord all combination locks on safes, cabinets and vaults.
F. Tenant shall not install any shades, blinds, or awnings or any
interior window treatment without consent of Landlord. All equipment
of any electrical or mechanical nature shall be placed in settings
which absorb and prevent any vibration or noise.
G. Landlord shall designate the time when and the method whereby
freight, laboratory equipment, furniture, safes and other like
articles may be brought into, moved or removed from the Building or
Premises, and to designate the location for temporary disposition of
such items.
H. Canvassing, soliciting and peddling in the Building is prohibited
and Tenant shall cooperate to prevent the same from occurring.
I. Tenant shall not place a load on any floor of said Premises
exceeding one hundred (100) pounds per square foot. Landlord
reserves the right to prescribe the weight and position of all
safes and heavy equipment.
J. Tenant shall not install or use any air conditioning or heating
device or system other than those approved by Landlord.
K. Landlord shall have the right to make such other and further
reasonable rules and regulations as in the judgment of Landlord,
may from time to time be needful for the safety, appearance, care
and cleanliness of the Building and for the preservation of good or-
der therein. Landlord shall not be responsi-
ble to Tenant for any violation of rules and regulations by other
tenants.
L. The loading areas, parking areas, sidewalks, entrances, lobbies,
halls, walkways, elevators, stairways and other common areas
provided by Landlord shall not be obstructed by Tenant, or used by
Tenant for any other purpose than for ingress and egress.
M. In order to insure use and care of the Premises Tenant shall not
enter any janitors' closets, mechanical or electrical areas,
telephone closets, loading areas, roof or Building storage areas
without the written consent of Landlord.
EXHIBIT D
TENANT'S INITIAL IMPROVEMENTS
Approximately fifteen thousand (15,000) square feet of first-class
bio-technology laboratory space, consistent with similar facilities located in
the Metropolitan Boston area.
EXHIBIT D-1
LIST OF TENANT'S PERSONAL PROPERTY
See three (3) sheets entitled "Pharmaceutical Peptides, Inc.
Equipment Lease" attached hereto.
EXHIBIT D-2
SECURED PROPERTY
All items incorporated within and made a part of Tenant's Initial
Improvements, excluding therefrom those items listed on Exhibit D-1.
EXHIBIT E
CUSTODIAL SERVICES
CUSTODIAL WORKERS: WILL POSSESS A THOROUGH KNOWLEDGE OF THE OPERATION OF ALL
MECHANICAL CLEANING EQUIPMENT, ALL CLEANING METHODS, AND
ALL CLEANING MATERIALS. ALL CUSTODIAL WORKERS WILL BE
SUPERVISED ON A NIGHTLY BASIS.
MATERIALS
1. ALL MECHANICAL CLEANING EQUIPMENT WILL BE FURNISHED BY XXXXXX
LABORATORY.
2. ALL CLEANING CHEMICALS, MATERIALS, AND CLEANING EQUIPMENT WILL BE
FURNISHED BY XXXXXX LABORATORY.
3. SANITARY NAPKIN VENDING MACHINES WILL BE RESTOCKED BY XXXXXX
LABORATORY. THE COST OF THESE SANITARY PRODUCTS WILL BE BORNE BY THE
INDIVIDUAL USERS.
4. FLOOR FINISHES USED HAVE PASSED A SAFETY NON SLIP TEST.
5. ALL BATHROOM DESCALERS WILL BE LESS THAN 12 PERCENT HYDROCHLORIC
ACID.
6. MATERIAL SAFETY DATA SHEETS WILL BE KEPT BY XXXXXX LABORATORY ON ALL
CLEANING CHEMICALS SUPPLIED.
CLEANING OF RESTROOMS
TASK FREQUENCY
A. REPLENISH SUPPLIES DAILY
B. CLEAN AND DISINFECT DAILY
ALL RESTROOM FIXTURES
C. CLEAN MIRRORS DAILY
D. CLEAN AND DISINFECT DAILY
PARTITIONS
E. CLEAN AND DISINFECT DAILY
HARD SURFACE FLOORS
F. EMPTY TRASH RECEPTACLES DAILY
G. REPLACE LINERS DAILY
TRASH/SANITARY
H. VACUUM LIGHT FIXTURES AS NEEDED
AND DIFFUSERS
I. SPOT CLEAN WALLS DAILY
J. WASH WALLS AS NEEDED
K. DESCALING OF FIXTURES WEEKLY/OR AS NEEDED
