1
EXHIBIT 10.25
FIFTH AMENDMENT TO LEASE
FIFTH AMENDMENT TO LEASE (the "Fifth Amendment") dated as of the 9th day of
October, 1997 by and between Xxxxxxxx X. Xxxxxxxxx, Xxxxxx X. Xxxxx and Xxxxx
Xxxxxxx, Trustees of Fourteen Cambridge Center Trust under Declaration of Trust
dated February 4, 1982 and recorded with the Middlesex South District Registry
of Deeds in Book 14707, Page 96 and not individually (hereinafter called the
"Landlord") and Biogen, Inc. (successor to Biogen Research Corp., successor to
B. Leasing, Inc.). Biogen, Inc., is the Tenant under the Lease and is
(hereinafter called "Tenant").
R E C I T A L S
By lease dated October 4, 1982, as amended by First Amendment To Lease
dated January 19, 1989 (the "First Amendment"), by Second Amendment To Lease
dated March 8, 1990 (the "Second Amendment"), by Third Amendment To Lease dated
September 25, 1991 (the "Third Amendment") and by Fourth Amendment to Lease
dated October 6, 1993 (the "Fourth Amendment") (said Lease as so amended being
hereinafter called the "Lease"), Landlord did lease to Tenant and Tenant did
hire and lease from Landlord the "Site" and "Building" known as and numbered
Fourteen Cambridge Center, Cambridge, Massachusetts. The Site and the Building
are defined in Section 1.2 of the Lease and are collectively therein and herein
interchangeably called the "Demised Premises" or the "Premises".
The Lease provided for an Original Lease Term which was scheduled to expire
on February 28, 1998. Pursuant to Section 1 of the Fourth Amendment, the Term
was extended for one (1) period of five (5) years (the "First Extended Term")
expiring on February 28, 2003.
Landlord and Tenant have agreed to extend the Term of the Lease, to
restructure certain obligations of Landlord and Tenant under the Lease and to
make certain other modifications to the Lease and are entering into this
instrument to set forth the same.
NOW, THEREFORE, in consideration of One Dollar ($1.00) and other good and
valuable consideration paid by each of the parties hereto to the other, the
receipt and sufficiency of which is hereby acknowledged, and in further
consideration of the provisions herein, Landlord and Tenant hereby agree as
follows:
1. The Lease Term (also in the Lease sometimes called the "Term"), which
but for this Fifth Amendment is scheduled to expire on February 28,
2003, is hereby presently extended for a period commencing on March 1,
2003 and expiring on the date which is fifteen (15) years subsequent
to the date (such date being hereinafter referred to as the "Fifth
Amendment Effective Date") that this Fifth
2
Amendment has been executed on behalf of both Landlord and Tenant
(plus the partial month, if any, at the end of such fifteen (15) year
period) (herein called the "Second Extended Term") unless extended or
sooner terminated in accordance with the provisions of the Lease (as
herein amended). The present extension of the Lease Term for the
Second Extended Term shall be on all of the same terms and conditions
set forth in the Lease except as otherwise provided in this Fifth
Amendment. All references in the Lease (as herein amended) to the
"Term" or "Lease Term" shall mean and be references to the Original
Term as extended by the First Extended Term and as herein presently
extended by the Second Extended Term.
2. Section 3.2 of the Lease is hereby deleted in its entirety and
Landlord and Tenant acknowledge and agree that Tenant's only options
to extend the Term beyond the expiration of the Second Extended Term
shall be as provided in Section 3 of this Fifth Amendment.
3. Provided that at the time of the exercise there exists no "Event of
Default" (defined in Section 15.1 of the Lease) and that the Lease is
still in full force and effect, Tenant shall have the right to extend
the Lease Term upon all of the same terms, conditions and provisions
contained in the Lease (except for the Annual Fixed Rent which shall
be adjusted during option periods as hereinafter set forth) for four
(4) successive periods of five (5) years each as hereinafter set
forth. Each of the four (4) option periods is sometimes herein
referred to as an Extended Term.
If Tenant desires to exercise any one of the aforementioned options to
extend the then current term of the Lease, then Tenant shall give
notice to Landlord, not earlier than eighteen (18) months nor later
than fourteen (14) months prior to the expiration of the then current
term of the Lease of Tenant's request for Landlord's quotation as of
the commencement date of the applicable extension period of the annual
fair market rental rate of the Demised Premises for the applicable
Extended Term, such quotation to be based on the use of the Demised
Premises as a first class office building of comparable age in the
Cambridge Center Development Area (including such inflation indicators
as may from time to time be in effect but determined without regard to
any right to extend but taking into account Tenant's payments of
Impositions and Tenant's obligations to maintain and pay for the
maintenance of the Demised Premises as set forth in the Lease as
herein amended). Within one hundred five (105) days after Landlord's
receipt of Tenant's notice requesting such a quotation, Landlord shall
notify Tenant of Landlord's quotation. In order to exercise its rights
hereunder, Tenant shall, within fifteen (15) days after receipt of
Landlord's quotation, by written notice to Landlord either (i) accept
such quotation and give notice that it exercises its option to extend
the Lease Term (as it may previously have been extended), in which
case the Lease Term (as it may previously have been extended) shall be
-2-
3
extended for the applicable Extended Term or (ii) make a request to
Landlord for a broker determination of the Annual Fixed Rent for the
applicable Extended Term (based on the criteria set forth in this
Section 3), which determination shall be made as follows:
Tenant's notice requesting a broker determination of the Annual
Fixed Rent shall include the name of a commercial real estate
brokerage firm selected by Tenant with at least ten (10) years
experience dealing in properties of a nature and type generally
similar to the Demised Premises located in the Downtown
Boston-Cambridge area ("Tenant's Extended Term Broker"). Within
ten (10) days after Landlord's receipt of Tenant's notice
requesting a broker determination and stating the name of such a
commercial real estate brokerage firm, Landlord shall give
written notice to Tenant of Landlord's selection of a commercial
real estate brokerage firm having at least the experience
referred to above ("Landlord's Extended Term Broker"). Within ten
(10) days thereafter the two (2) firms so selected shall select a
third such commercial real estate brokerage firm also having at
least the experience referred to above (the "Third Extended Term
Broker"). Within ten (10) days after the selection of the third
commercial real estate brokerage firm, the three (3) firms so
selected, by majority opinion, shall attempt to determine the
Annual Fixed Rent on the basis of the criteria set forth above in
this Section 3. If the brokers are able to agree at least by
majority on a determination of such Annual Fixed Rent the brokers
shall send a notice to Landlord and Tenant by the end of such ten
(10) day period of such determination which shall be hereinafter
called the "Broker Determination." If the brokers are unable to
agree at least by majority on a determination of such Annual
Fixed Rent, the brokers shall send a notice to Landlord and
Tenant by the end of such ten (10) day period of such inability
and within fourteen (14) days after the selection of the Third
Extended Term Broker, both Tenant's Extended Term Broker and
Landlord's Extended Term Broker shall make separate
determinations of the Annual Fixed Rent on the basis of the
criteria set forth above in this Section 3 ("Tenant's Broker's
Rent Determination" and "Landlord's Broker's Rent Determination"
respectively). Within fourteen (14) days after both Tenant's
Broker's Rent Determination and Landlord's Broker's Rent
Determination have been made, the Third Extended Term Broker
shall select either Landlord's Broker's Rent Determination or
Tenant's Broker's Rent Determination (the "Third Broker's Rental
Selection") and the Third Broker's Rental Selection shall, in its
entirety and without regard to the other Rent Determinations,
constitute the "Broker Determination." In making the selection,
in no event shall the Third Extended Term Broker have any power
to amend, modify, compromise, average or blend either Landlord's
Broker's Rent Determination or Tenant's Broker's Determination,
it being the intent of Landlord and Tenant that the Third
-3-
4
Extended Term Broker shall simply select one of either Landlord's
Broker's Rent Determination or Tenant's Broker's Rent
Determination which, in the Third Extended Term Broker's
judgement, most accurately and fairly defines the Annual Fixed
Rent for the Premises for the Extended Term based on the
requirements of this Section 3. The Third Extended Term Broker
shall advise Landlord and Tenant in writing by the expiration of
said fourteen (14) day period of the Third Broker's Rental
Selection as so determined. In no event shall the Annual Fixed
Rent as determined in any manner pursuant to this Section be less
than the Annual Fixed Rent for the Lease Year immediately
preceding the commencement of the applicable Extended Term.
Tenant shall have the right to extend the Lease Term for the applicable
Extended Term by written notice to Landlord given within fifteen (15) days
after Tenant's receipt of the Broker Determination.
Upon the giving of notice by Tenant to Landlord either (i) within the
fifteen (15) day period hereinbefore referred to accepting Landlord's
quotation of the Annual Fixed Rent for the then applicable Extended Term
and exercising Tenant's option to extend or (ii) within the fifteen (15)
day period also hereinbefore referred to accepting the Broker Determination
and exercising Tenant's option to extend, then this Lease and the Lease
Term hereof shall be extended, for an additional term of five (5) years,
without the necessity for the execution of any additional documents (except
that Landlord and Tenant agree to enter into an instrument in writing
setting forth the Annual Fixed Rent as determined in the relevant manner
set forth above); and in such event all references herein to the Lease Term
or the term of the Lease shall be construed as referring to the Lease Term,
as so extended, unless the context clearly otherwise requires, and except
that in no event shall the Lease Term be extended for more than twenty (20)
years after the expiration of the Second Extended Term. In no event shall
Tenant have the right to exercise its second five (5) year extension option
unless it has timely exercised its first five (5) year extension option,
nor shall Tenant have the right to exercise its third five (5) year
extension option unless it has timely exercised its first and second five
(5) year extension options, nor shall Tenant have the right to exercise its
fourth five (5) year extension option unless its has timely exercised its
first, second and third extension options, nor shall Tenant have the right
to exercise more than one (1) option at a time.
4. (A) For the period prior to the Fifth Amendment Effective Date, Tenant
shall continue to pay Annual Fixed Rent as provided in the Lease as
previously amended.
(B) During the period commencing on the Fifth Amendment Effective Date and
ending on the last day of the sixtieth (60th) month following the Fifth
-4-
5
Amendment Effective Date, Annual Fixed Rent shall be payable at the annual
rate equal to the product of (i) $18.95 and (ii) the 67,362 square feet of
Gross Building Area of the Building, being a total of $1,276,509.90 per
year.
(C) During the period commencing on the first day of the sixty-first (61st)
month following the Fifth Amendment Effective Date and ending on the last
day of the one hundred and twentieth (120th) month following the Fifth
Amendment Effective Date, Annual Fixed Rent shall be payable at the annual
rate equal to the product of (i) $21.25 and (ii) the 67,362 square feet of
Gross Building Area of the Building, being a total of $1,431,442.50 per
year.
(D) During the period commencing on the first day of the one hundred and
twenty-first (121st) month following the Fifth Amendment Effective Date and
ending on the last day of the one hundred eightieth (180th) month following
the Fifth Amendment Effective Date, being the expiration of the Second
Extended Term, Annual Fixed Rent shall be payable at the annual rate equal
to the product of (i) $23.50 and (ii) the 67,362 square feet of Gross
Building Area of the Building, being a total of $1,583,007.00 per year.
(E) During the extension option periods (if exercised), Annual Fixed Rent
shall be payable by Tenant as provided in Section 3 hereinabove.
5. For the portion of the Lease Term prior to the Fifth Amendment Effective
Date, Section 3 of the Fourth Amendment shall be unchanged. For the portion
of the Lease Term on and after the Fifth Amendment Effective Date, Sections
3(A) and 3(D) of the Fourth Amendment are hereby deleted in their entirety
(except for the first paragraph of said Section 3(A) which shall remain in
full force and effect) and Section 3(b) of the Second Amendment (as amended
by Section 3(A) of the Fourth Amendment) is hereby amended so that the
monthly rates per vehicle for Tenant's parking charges shall be as follows:
PERIOD MONTHLY RATE PER CAR
From the Fifth Amendment Effective The lesser of (i) $105.00, subject to
Date through December 31, 1999 escalation as provided in Section 3(B)
and 3(C) of the Fourth Amendment or
(ii) the monthly amount (hereinafter
the "Specified Monthly Garage Rate")
charged per space by the operator of
the North Garage (whether or not such
operator is an affiliate of Landlord)
to any single tenant leasing parking
rights
-5-
6
for fifty (50) or more vehicles in the
North Garage.
From January 1, 2000 through The lesser of (i) $140.00, subject to
December 31, 2004 escalation as provided in Section 3(B)
and 3(C) of the Fourth Amendment or
(ii) the Specified Monthly Garage
Rate.
From January 1, 2005 through The lesser of (i) $180.00, subject to
December 31, 2009 to escalation as provided in Section
3(B) and 3(C) of the Fourth Amendment
or (ii) the Specified Monthly Garage
Rate.
From January 1, 2010 through the The lesser of (i) $215.00, subject to
expiration of the Second Extended escalation as provided in Section
Term 3(B) and 3(C) of the Fourth Amendment
or (ii) the Specified Monthly Garage
Rate.
During the extension option periods, if exercised, the parking charges
shall be the prevailing monthly rates per space charged by the operator of
the North Garage (whether or not such operator is an affiliate of
Landlord).
6. Sections (A) (B), (C) and (D) of Section 16.31 of the Lease added by
Section 4 of the Fourth Amendment are hereby deleted in their entirety and
replaced with the correspondingly lettered Sections as follows:
(A) Upon and subject to the terms and conditions contained in this
Section and provided that (i) the Lease (as herein amended) shall be
in full force and effect, (ii) there shall be no "Event of Default"
(defined in Section 15.1 of the Lease) either at the time of the
giving of the "Tenant's Option Exercise Notice" (defined below) or on
the "Closing Date" (as hereinafter defined and as it may be extended
hereunder) and (iii) Tenant has neither assigned the Lease nor sublet
the Demised Premises (except only as provided in Subsection (L) below)
Landlord hereby grants to Tenant the right and option to purchase the
Demised Premises. Landlord and Tenant hereby agree that, subject to
compliance with the terms and conditions contained in this Section
(including, but not limited to Items (i), (ii) and (iii) set forth
immediately above), the within granted option to purchase the Demised
Premises shall remain superior to the rights of any other person to
purchase or otherwise acquire the Demised Premises through the
expiration of the Second Extended Term whether or not
-6-
7
Tenant's option has been exercised as of such purchase or acquisition,
it being covenanted and agreed (a) that the within granted option to
purchase the Demised Premises shall not prevent any sale, conveyance
or other transfer of the Demised Premises or any interest therein but
any such sale, conveyance or other transfer shall be subject to the
within granted option to purchase the Demised Premises upon and
subject to the terms and conditions hereof and (b) that the within
granted option to purchase the Demised Premises shall not prevent any
foreclosure, deed in lieu of foreclosure or the exercise of any other
rights under any mortgage now or hereafter encumbering the Demised
Premises but that any person acquiring title to the Demised Premises
as a result of foreclosure, deed in lieu of foreclosure or by the
exercise of any such other rights shall be subject to the within
granted option to purchase the Demised Premises upon and subject to
the terms and conditions hereof.
(B) (i) In order to exercise the within granted option to purchase the
Demised Premises, Tenant shall give written notice to Landlord
("Tenant's Option Exercise Notice") at any time on or before the date
which is eighteen (18) months prior to the expiration of the Second
Extended Term (time being of the essence) of Tenant's exercise of its
purchase option hereunder and its request for Landlord's quotation of
the annual fair market purchase price of the Demised Premises as of
the Closing Date, such quotation to be based on the use of the Demised
Premises as a first class office building of comparable age in the
Cambridge Center Development Area. Within forty-five (45) days after
Landlord's receipt of Tenant's notice requesting such a quotation,
Landlord shall notify Tenant of Landlord's quotation. If Tenant
desires to exercise its option to purchase the Demised Premises,
Tenant shall, within fifteen (15) days after receipt of Landlord's
quotation, by written notice to Landlord ("Tenant's Purchase Price
Notice") either (x) accept such quotation, in which case the "Purchase
Price" for the Demised Premises shall be the price as quoted by
Landlord or (y) make a request to Landlord for a broker determination
of the purchase price for the Demised Premises, which determination
shall be made as follows:
Tenant's notice requesting a broker determination of the purchase
price shall include the name of a commercial real estate
brokerage firm selected by Tenant with at least ten (10) years
experience dealing in properties of a nature and type generally
similar to the Demised Premises located in the Downtown
Boston-Cambridge area ("Tenant's Sale Broker"). Within ten (10)
days after Landlord's receipt of Tenant's notice requesting a
broker determination and stating the name of such a commercial
real estate brokerage firm, Landlord shall give written notice to
Tenant
-7-
8
of Landlord's selection of a commercial real estate brokerage
firm having at least the experience referred to above
("Landlord's Sale Broker"). Within ten (10) days thereafter the
two (2) firms so selected shall select a third such commercial
real estate brokerage firm also having at least the experience
referred to above (the "Third Sale Broker"). Within ten (10) days
after the selection of the third commercial real estate brokerage
firm, the three (3) firms so selected, by majority opinion, shall
attempt to determine the purchase price for the Demised Premises
on the basis of the criteria set forth hereinabove. If the
brokers are able to agree at least by majority on a determination
of such purchase price the brokers shall send a notice to
Landlord and Tenant by the end of such ten (10) day period of
such determination which shall constitute the "Purchase Price"
hereunder. If the brokers are unable to agree at least by
majority on a determination of such purchase price, the brokers
shall send a notice to Landlord and Tenant by the end of such ten
(10) day period of such inability and within fourteen (14) days
after the selection of the Third Sale Broker, both Tenant's Sale
Broker and Landlord's Sale Broker shall make separate
determinations of the purchase price for the Demised Premises on
the basis of the criteria set forth hereinabove ("Tenant's
Broker's Sale Determination" and "Landlord's Broker's Sale
Determination" respectively). Within fourteen (14) days after
both Tenant's Broker's Sale Determination and Landlord's Broker's
Sale Determination have been made, the Third Sale Broker shall
select either Landlord's Broker's Sale Determination or Tenant's
Broker's Sale Determination (the "Third Broker's Sale Selection")
and the Third Broker's Sale Selection shall, in its entirety and
without regard to the other Sale Determinations, constitute the
"Purchase Price" hereunder. In making the selection, in no event
shall the Third Sale Broker have any power to amend, modify,
compromise, average or blend either Landlord's Broker's Sale
Determination or Tenant's Broker's Sale Determination, it being
the intent of Landlord and Tenant that the Third Sale Broker
shall simply select one of either Landlord's Broker's Sale
Determination or Tenant's Broker's Sale Determination which, in
the Third Sale Broker's judgement, most accurately and fairly
defines the purchase price for the Demand Premises based on the
criteria set forth hereinabove. The Third Sale Broker shall
advise Landlord and Tenant in writing by the expiration of said
fourteen (14) day period of the Third Broker's Sale Selection as
so determined.
Within five (5) days after the date either (i) Tenant notifies
Landlord that it accepts Landlord's quotation of the Purchase
Price pursuant to (x) hereinabove or (ii) the date of Tenant's
receipt of notification from the
-8-
9
brokers of the Purchase Price as provided in (y) hereinabove,
Tenant shall pay to Landlord a deposit in the amount equal to ten
percent (10%) of the Purchase Price in good funds payable to
Landlord (the "Deposit"); provided, however, that the Deposit
shall be promptly endorsed or otherwise paid over to the "Escrow
Agent" (defined in subsection (B)(ii) hereof) and shall be held
and applied by the Escrow Agent in accordance with the provisions
of said subsection (B)(ii) hereof. It is hereby covenanted and
agreed that if Tenant shall not give to Landlord Tenant's Option
Exercise Notice or Tenant's Purchase Price Notice or pay the
Deposit to Landlord within the time periods referenced above
(time being of the essence), the within granted option to
purchase the Demised Premises shall automatically cease, expire
and be null and void without any action of the parties and
without any liability or obligation to or against any of the
parties, provided, however, that the Lease shall remain in full
force and effect in accordance with its terms for the remainder
of the Term. If Tenant shall timely give to Landlord Tenant's
Option Exercise Notice and Tenant's Purchase Price Notice and pay
the Deposit to Landlord, the Closing Date shall be as set forth
in subsection (D) hereof.
(B) (iii) The "Escrow Agent" shall be the General Counsel of
Boston Properties, Inc., or such law firm, title insurance
company or other institutional escrow agent as Landlord shall
select. Landlord shall promptly pay over the Deposit to the
Escrow Agent so selected and shall cause the Escrow Agent holding
the Deposit to acknowledge to Tenant receipt of the Deposit
within a reasonable period of time after the Escrow Agent
receives the Deposit. The Deposit shall be held in such interest
bearing account in such banking institution in the City of Boston
and upon such terms and conditions relating to the deposit of
funds and maintenance of accounts as the Escrow Agent shall
determine. The type of account, the rate of interest, the terms
and conditions relating to the deposit of funds and maintenance
of accounts and the banking institution shall be as solely
selected by the Escrow Agent and the Escrow Agent shall have no
liability to Landlord or Tenant respecting the selection of the
type of account, the rate of interest, the terms and conditions
relating to the deposit of funds and maintenance of accounts
and/or the banking institution. Further, the Deposit shall be
held by the Escrow Agent subject to the terms of this Section
16.31 and shall be duly accounted for on the "Closing Date"
(hereinafter defined) as it may be extended pursuant to this
Section 16.31 or on the earlier termination of this Section
16.31. All interest earned on the Deposit shall be paid to
Landlord with no credit against the purchase price for such
interest being given to Tenant; provided, however, that if
pursuant to the terms of this Section 16.31 the Deposit shall be
returned to
-9-
10
Tenant, the interest earned on the Deposit at the time of such
return of the Deposit shall be paid over to Tenant.
If for any reason the closing does not occur and either
party makes a written demand upon the Escrow Agent for delivery
of the Deposit and the interest earned thereon, the Escrow Agent
shall give written notice to the other party of such demand. If
the Escrow Agent does not receive a written objection from the
other party to the proposed payment within ten (10) days after
the giving of such notice, the Escrow Agent is hereby authorized
to make such delivery or payment. If the Escrow Agent does
receive such written objection within such ten (10) business day
period or if for any other reason the Escrow Agent in good faith
shall elect not to make such payment, the Escrow Agent shall
continue to hold the Deposit until otherwise directed by written
instructions from both Landlord and Tenant or a final judgment of
a court. However, the Escrow Agent shall have the right at any
time to deposit the Deposit with the clerk of such court of
competent jurisdiction in the Commonwealth of Massachusetts that
the Escrow Agent shall select. The Escrow Agent shall give
written notice of such deposit to Landlord and Tenant. Upon such
deposit the Escrow Agent shall be relieved and discharged of all
further obligations and responsibilities hereunder.
The Landlord and Tenant acknowledge that the Escrow Agent
shall act solely as a stakeholder at Landlord's and Tenant's
request and for their convenience, that the Escrow Agent shall
not be deemed to be the agent of either of the parties, and the
Escrow Agent shall not be liable to either of the parties for any
act or omission on its part unless taken or suffered in bad
faith, in willful disregard of this Section 16.31 or involving
gross negligence. Landlord and Tenant shall jointly and severally
indemnify and hold the Escrow Agent harmless from and against all
costs, claims and expenses, including reasonable attorneys' fees,
incurred in connection with the performance of the Escrow Agent's
duties hereunder, except with respect to actions or omissions
taken or suffered by the Escrow Agent in bad faith, in willful
disregard of this Section 16.31 or involving gross negligence on
the part of the Escrow Agent. The parties agree that
notwithstanding the obligations of the Escrow Agent under this
Agreement, the Escrow Agent (if an attorney or law firm) shall be
permitted to represent Landlord or Tenant (as the case may be) in
connection with the transaction evidenced by this Section 16.31
or in connection with any matters arising from or related to this
Section 16.31, the consummation of this Section 16.31 or any
claimed breach of this Section 16.31 by any party.
-10-
11
(C) (i) The Purchase Price payable for the Demised Premises shall
be payable on the closing by Federal Funds immediately available
to the Landlord at BankBoston, Boston, Massachusetts or such
other bank as may be stipulated by Landlord by written notice to
Tenant. Upon closing, credit shall be given by Landlord to Tenant
for and in the amount of the Deposit (but not for the interest
earned thereon). The parties acknowledge and agree that
"Impositions" (as defined in Article VI of the Lease) and the
cost of the maintenance, repair and replacement of the Demised
Premises pursuant to Sections 8.1 and 10.1 of the Lease, as such
Sections are amended by this Fifth Amendment, are and shall
continue to be paid entirely by Tenant. Accordingly, no credit or
adjustment shall be given to Tenant at closing (or otherwise)
respecting Impositions and such maintenance, repair and
replacement obligations.
(C) (ii) Fixed Rent and all Additional Rent (except respecting
Impositions and certain maintenance, repair and replacement
obligations, provision for which is made in Section 16.31 (C)(i)
above) shall be paid through the "Closing Date" (referred to in
Section 16.31 (D)) as it may be extended pursuant to the
provisions of this Section 16.31 and in the event that Tenant has
prepaid amounts of the foregoing (excluding Impositions) for
periods extending beyond said Closing Date (as it may be so
extended), appropriate credit shall be given to Tenant for
amounts thereof (excluding Impositions and such maintenance,
repair and replacement obligations) prepaid for periods extending
beyond said Closing Date (as it may be so extended).
(D) The closing (the "Closing") shall be held at the Middlesex
South District Registry of Deeds, 000 Xxxxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxxxxx 00000 (or at such other location in
which said Registry of Deeds may be located), or at such other
place in the City of Boston as the parties may agree, at 10:30
A.M. on that date (the "Closing Date") which is the expiration
date of the Second Extended Term; provided, however, if said day
shall be a Saturday, Sunday or Legal Holiday, the Closing Date
shall be the next following business day on which the Middlesex
South District Registry of Deeds shall be open for the
transaction of business. In addition to the provisions of Section
16.31 (A) above, Landlord covenants that, so long as this Section
16.31 shall be in full force and effect and Tenant has not
assigned this Lease nor sublet the Premises (except only as
provided in Subsection (L) below) and Tenant shall not have
wrongfully failed to close on its purchase of the Demised
Premises and there shall be no "Event of Default" (defined in
Section 15.1 (a) of the Lease (as herein amended), Landlord shall
not encumber the Demised Premises from time to time with any
mortgages (and other financing documents) in the aggregate
principal amount greater than the purchase price. It is agreed
-11-
12
that time is of the essence with respect to the provisions and
agreements in this Section 16.31.
6.1 Section (E) of Section 16.31 of the Lease added by Section 4 of the Fourth
Amendment is hereby amended as follows:
(A) the words "and with the benefit of" are inserted after the
words "subject to" in the second line of the introductory
paragraph;
(B) the following words are added at the end of subsection
(viii):", provided, that Landlord, in Landlord's sole
discretion, may elect at any time to terminate the "East
Garage Sublease;"
6.2 Section (L) of Section 16.31 of the Lease added by Section 4 of the Fourth
Amendment is hereby amended by adding the following at the end thereof:
Notwithstanding the foregoing, if Tenant shall have timely given
Tenant's Option Exercise Notice and Tenant's Purchase Price
Notice as provided in Subsection (B) of this Section 16.31, as
amended by Section 6 of the Fifth Amendment, Tenant may designate
a nominee to take title to the Demised Premises by notice given
to Landlord at least seven (7) days prior to the Closing Date,
provided that all terms and conditions of this Section 16.31, as
amended, and the Lease applicable to such sale of the Demised
Premises shall apply to such nominee in addition to Tenant.
7. Exhibit I attached to the Fourth Amendment to Lease is hereby deleted in
its entirety and replaced with Exhibit I attached hereto.
8. The time period of "March 1, 1998 through February 28, 2002" referenced in
the third (3rd) and fourth (4th) lines of Section (A)(1) of Section 16.32
of the Lease added by Exhibit II of the Fourth Amendment is hereby deleted
and replaced with the "Fifth Amendment Effective Date through the date
which is twelve (12) months prior to the expiration of the Second Extended
Term."
9. (A) It is the purpose and intent of Landlord and Tenant that the Lease as
hereby amended shall constitute, and be construed as, an absolutely net
lease, whereby under all circumstances and conditions (whether or not now
or hereafter existing or within the contemplation of the parties) the
Annual Fixed Rent shall be a completely net return to Landlord throughout
the Term of the Lease and Tenant shall be responsible for all costs of
keeping and maintaining the Demised Premises, the Building and the Site in
first class condition and in compliance with all existing and future laws,
including, without limitation, all costs of capital and operating repairs
and replacements, including the roof, structural, mechanical and other
systems of the Building; and unless and to the extent specifically
otherwise
-12-
13
provided in the Lease as herein amended Tenant shall indemnify and hold
harmless Landlord from and against any and all expenses, costs,
liabilities, obligations and charges whatsoever, which shall arise or be
incurred or become due, during the Term of the Lease, with respect to or in
connection with, the Demised Premises, the Building and the Site, and the
operation, management, maintenance and repair and replacement thereof.
(B) Unless expressly otherwise provided in the Lease, the Lease shall not
terminate, nor shall Tenant have any right to terminate this Lease, nor
shall Tenant be entitled to any abatement or reduction of Annual Fixed
Rent, Additional Rent or any other sums payable by Tenant under the Lease,
nor shall the obligations of Tenant hereunder be affected by reason of (i)
any damage to or destruction of all or any part of the Demised Premises,
the Building or the Site, from whatever cause (except only and to the
extent specifically otherwise provided in Article XIV of the Lease), (ii)
the taking of the Demised Premises, the Building or the Site, or any
portion thereof, by eminent domain or otherwise for any reason (except only
and to the extent specifically otherwise provided in Article XIV of the
Lease), (iii) the prohibition, limitation or restriction of Tenant's use of
all or any part of the Demised Premises, the Building or the Site, from
whatever cause, or any interference with such use, or (iv) any other cause
whether similar or dissimilar to the foregoing, any present or future law
to the contrary notwithstanding. It is the intention of the parties that
Landlord shall have no obligation or covenant under the Lease with respect
to or in connection with the operation, management, maintenance, repair and
replacement of the Demised Premises, the Building and the Site except for
(i) the obligation to provide the services set forth in Section 7.1 of the
Lease, as amended by Section 2 of the Third Amendment and Section 10 of
this Fifth Amendment, subject to reimbursement by Tenant as provided in
Section 7.1.1 of the Lease, as amended by Section 3 of the Third Amendment
and Section 10 of this Fifth Amendment, (ii) the obligation to provide
Tenant the right to use, in common with others, the common internal
roadways, sidewalks and pedestrian walks in the Parcel 2 Development Area
as provided in Section 7.2 of the Lease, subject to reimbursement by Tenant
as provided in Section 7.1.1 of the Lease, as amended by Section 3 of the
Third Amendment and Section 10 of this Fifth Amendment, (iii) the
obligation to maintain insurance as provided in Section 13.2 of the Lease,
subject to reimbursement from Tenant as provided in Section 7.1.1 of the
Lease, as amended by Section 3 of the Third Amendment and Section 10 of the
Fifth Amendment and (iv) the obligation to provide Tenant's parking rights
in the North Garage as provided in Section 16.5 of the Lease, as amended by
Section 3 of the Second Amendment, Section 3 of the Fourth Amendment and
Section 5 of the Fifth Amendment and (v) Landlord's obligations set forth
in Section 13.1 (B) of this Fifth Amendment respecting certain "Hazardous
Materials" (as defined in said Section 13.1) at the Site. Subsections (i),
(ii) and (v) above are herein collectively referred to as "Landlord's
Repair Obligations". In addition, it is the
-13-
14
intention of the parties hereto that the obligations of Tenant under the
Lease shall be separate and independent covenants and agreements, that
Annual Fixed Rent, Additional Rent and all other sums payable by Tenant
under the Lease shall continue to be payable in all events and that the
obligations of Tenant under the Lease shall continue unaffected, unless the
requirement to pay or to perform the same shall have been excused pursuant
to an express provision of the Lease.
(C) In order to effectuate the intention of Landlord and Tenant as set
forth in this Section 9, the Lease shall be amended as provided in Sections
10, 11, 12, 13 and 13.1 below.
10. (A) For purposes of calculating Tenant's payments for operating costs
pursuant to Section 7.1.1 of the Lease, as amended by Section 3 of the
Third Amendment, for that portion of the Lease Term prior to the Fifth
Amendment Effective Date, the terms of said Section 7.1.1, as amended by
Section 3 of the Third Amendment, shall be unchanged.
(B) For the purposes of calculating Tenant's payments for the operating
costs for that portion of the Lease Term on and after the Fifth Amendment
Effective Date, said Section 7.1.1, as amended by Section 3 of the Third
Amendment, shall be amended by deleting the definition of "Operating
Expenses" in its entirety and substituting the following therefor:
"Operating Expenses" means the cost of operation of the Demised
Premises reasonably and necessarily incurred by Landlord in performing
Landlord's obligations under the Lease, as amended; including without
limitation, all costs of performing Landlord's obligations under
Section 7.1 of the Lease, as amended by Section 2 of the Third
Amendment; premiums for insurance carried with respect to the Demised
Premises as set forth in Section 13.2 of the Lease; compensation and
all fringe benefits, workmen's compensation insurance premiums and
payroll taxes paid to, for or with respect to all persons engaged in
the operating, maintaining or cleaning of the exterior of the Building
(exclusive of cleaning the windows of the Building) or the Site; the
cost of any letters of credit or deposits necessary to secure any
utility services if required and to the extent not otherwise paid for
by Tenant; cost of building and cleaning supplies and equipment; cost
of maintenance, repairs and replacements (other than reimbursement
from contractors under guarantees); cost of snow removal and care of
landscaping, cost of carrying insurance with respect to and of
providing streetlights and electricity therefor, repairing, and
otherwise maintaining and replacing roadways, sidewalks and pedestrian
ways within or abutting the Site or the Xxxxxx 0 Xxxxxxxxxxx Xxxx;
payments under service contracts with independent contractors; and all
other reasonable and necessary amounts paid in connection with
performing
-14-
15
Landlord's obligations under the Lease, as amended, respecting the
operation, maintenance and cleaning of the exterior of the Building,
the Site and areas outside of the Site but within the Parcel 2
Development Area , including, without limitation, the cost of all
capital expenditures; provided, however, with respect to the insuring,
repairing, removing snow from, landscaping and otherwise maintaining
and replacing roadways, sidewalks and pedestrian walks or ways outside
of the Site but within the Parcel 2 Development Area there only shall
be included within Operating Expenses "Tenant's Proportionate Share"
(hereinafter defined) thereof. "Tenant's Proportionate Share" shall be
a fraction, the numerator of which shall be the Gross Building Area of
the Building and the denominator of which shall be the sum of (i) the
Gross Building Area of the Building plus (ii) the gross building area
of other buildings under construction or completed from time to time
in the Parcel 2 Development Area. Notwithstanding the foregoing, there
shall be excluded from "Operating Expenses" the cost of performing
Landlord's obligations under Section 13.1 (B) of the Fifth Amendment
respecting certain Hazardous Materials at the Site.
11. (A) For the portion of the Lease Term prior to the Fifth Amendment
Effective Date, Tenant shall continue to perform the repairs and
maintenance set forth in Section 8.1 of the Lease as amended by Section 4
of the Third Amendment.
(B) For the portion of the Lease Term on and after the Fifth Amendment
Effective Date, said Section 8.1, as amended by Section 4 of the Third
Amendment, shall be amended and restated as follows:
Tenant shall, throughout the Lease Term, at Tenant's sole cost and
expense, keep and maintain the Demised Premises and every part thereof
including, without limitation, all mechanical, utility and other
systems and appurtenances of the Building and the structural and
nonstructural elements of the roof, interior and exterior walls,
foundation, floor slabs and all other elements of the Building and all
above ground and below ground storage tanks in, on or under the
Building, the Site or the Demised Premises in first class condition
and repair and in compliance with all applicable existing and future
laws, excepting only (i) normal and reasonable wear and use, (ii)
damage caused by fire or other casualty or as a consequence of the
exercise of the power of eminent domain to the extent Tenant is
relieved of its obligations pursuant to Article XIV of the Lease, and
(iii) those repairs (or services) to be made by Landlord as
"Landlord's Repair Obligations" (as defined in Section 9 of the Fifth
Amendment). In addition to the foregoing, Tenant shall, throughout the
Lease Term, at Tenant's sole cost and expense (x) provide to the
Demised Premise steam, water, sewer, electricity, gas, oil, elevator
service, rubbish
-15-
16
removal, security systems and service, telephone service and pest
control services, (y) provide to the interior of the Building cleaning
service and (z) clean the windows of the Building. Landlord shall have
no responsibility for providing any of (x), (y) and (z) above. Tenant
shall not commit or suffer to be committed any waste upon or about the
Demised Premises, and except for Landlord's Repair Obligations, shall
promptly at its cost and expense make all necessary replacements,
restorations, renewals and repairs to the Demised Premises and
appurtenances thereto, whether interior or exterior, ordinary or
extraordinary, foreseen as well as unforeseen, necessary to keep the
Demised Premises in good and lawful order and condition, and such
repairs, replacements, restorations and renewals shall, to the maximum
extent possible, be at least equivalent in quality to the quality of
the original work or the property replaced, as the case my be. Tenant
shall undertake preventive maintenance as well, and a reasonable
policy of inspection to ascertain the need for repairs and
replacements shall be adhered to by Tenant throughout the entire Lease
Term. Tenant specifically covenants and agrees to replace all glass
damaged with glass of the same kind and quality. Except for Landlord's
Repair Obligations, and except to the extent Tenant is relieved of its
obligations for damage caused by fire or other casualty or by eminent
domain pursuant to Article XIV of the Lease, Tenant's obligations to
maintain the Demised Premises is absolute and without limitation.
Except for Landlord's Repair Obligations, Landlord shall have
absolutely no liability or obligation whatsoever to make any repairs,
replacements, alterations, restorations or renewals of any nature or
description to the Demised Premises (including the improvements
thereon). Landlord, at Landlord's expense, shall cooperate with Tenant
in Tenant's performance of its obligations under this Section 8.1 to
the extent necessary because of Landlord's ownership of the fee
interest in the Demised Premises. Landlord and Tenant represent to the
other that as of the date of this Fifth Amendment that they have not
received written notice from any governmental authority or any insurer
of the Demised Premises that the Demised Premises is currently in
violation of any applicable law or insurance underwriting standard.
Landlord and Tenant shall promptly forward to the other party any
written notice they receive after the date of this Fifth Amendment
from any governmental authority or any insurer of the Demised Premises
that the Demised Premises is in violation of any applicable law. Prior
to Tenant making any submission or filing or sending any notice to any
governmental authority in connection with the performance of its
obligations under this Section 8.1, Tenant shall first submit such
submission, filing or notice to Landlord for Landlord's approval,
which approval shall not be unreasonably withheld or delayed.
-16-
17
12. (A) For the portion of the Lease Term prior to the Fifth Amendment
Effective Date, Landlord shall continue to perform its obligations set
forth in Section 8.2 of the Lease.
(B) For the portion of the Lease Term on and after the said Fifth Amendment
Effective Date, Section 8.2 of the Lease shall be deleted in its entirety
and Landlord shall have no obligation to perform any of its obligations
formerly set forth therein. At the request of Tenant (i) Landlord shall
make available to Tenant the plans of the Demised Premises in Landlord's
possession which are useful or necessary for Tenant to perform its
maintenance, repair and replacement obligations under the Lease and (ii)
Landlord shall make available to and assign to Tenant, to the extent
assignable, Landlord's interest in any warranties covering portions of the
Demised Premises which Tenant is required to maintain, repair or replace
under the Lease, provided that Landlord shall also retain the benefit of
such warranties.
13. (A) For the portion of the Lease Term prior to the Fifth Amendment
Effective Date, Section 10.1 of the Lease shall be unchanged.
(B) For the portion of the Lease Term on and after the Fifth Amendment
Effective Date, Section 10.1 of the Lease shall be amended and restated as
follows:
Tenant shall, at its sole cost and expense, all during the Lease Term,
promptly comply with all present and future laws, ordinances, rules
and regulations of any duly constituted governmental authority
("Governmental Authority") relating to the use or occupancy of the
Demised Premises. Tenant shall promptly pay all fines, penalties and
damages that may arise out of or be imposed because of its failure to
comply with the provisions of this Section 10.1.
13.1 (A) Tenant covenants during the Lease Term and for such further time as
Tenant occupies any part of the Demised Premises, (i) Tenant shall not, nor
shall Tenant permit its employees, invitees, agents, independent
contractors, contractors, assignees or subtenants to, keep, maintain, store
or dispose of (into the sewage or waste disposal system or otherwise) or
engage in any activity which might produce or generate any substance which
is or may hereafter be classified as a hazardous material, waste or
substance (collectively "Hazardous Materials"), under federal, state or
local laws, rules and regulations, including, without limitation, 42 U.S.C.
Section 6901 et seq., 42 U.S.C. Section 9601 et seq., 42 U.S.C. Section
2601 et seq., 49 U.S.C. Section 1802 et seq. and Massachusetts General
Laws, Chapter 21E and the rules and regulations promulgated under any of
the foregoing, as such laws, rules and regulations may be amended from time
to time (collectively "Hazardous Materials Laws") in violation of Hazardous
-17-
18
Materials Laws, (ii) Tenant shall immediately notify Landlord of any
incident in, on or about the Premises, the Building or the Site that would
require the filing of a notice under any Hazardous Materials Laws, (iii)
Tenant shall comply and shall cause its employees, invitees, agents,
independent contractors, contractors, assignees and subtenants to comply
with each of the foregoing and (iv) Landlord shall have the right to make
such inspections (including testing) as Landlord shall elect from time to
time to determine that Tenant is complying with the foregoing.
(B) Landlord covenants during the Lease Term, at Landlord's cost and
expense, to comply with the requirements of Hazardous Materials Laws
arising because of Hazardous Materials (a) which are in, on, under or about
the Site as of the Commencement Date, (b) which migrate to the Site after
the Commencement Date from any adjoining property or (c) which are caused
or created by Landlord, its agents, contractor or employees.
Notwithstanding the first sentence of this Subsection 13.1(B), (i) if
Tenant exercises Tenant's option to purchase the Demised Premises pursuant
to Section 16.31 of the Lease, as added to the Lease by Section 4 of the
Fourth Amendment and amended by Section 6 of this Fifth Amendment, as
provided in said Section 16.31 the Demised Premises shall be conveyed in
"as is" condition and Landlord and Tenant's rights and obligations with
respect to the presence of Hazardous Materials in, on, under or about the
Demised Premises in connection with such purchase and after such purchase
shall be as set forth in said Section 16.31, (ii) Tenant, at Tenant's cost
and expense shall be responsible for compliance with Hazardous Materials
Laws required because of Hazardous Materials which migrate to the Demised
Premises from another site where (x) Tenant or an affiliate of Tenant or
their agents, contractors or employees caused or created the contamination
on such other site or (y) Tenant or an affiliate of Tenant own or
previously owned such other site and (iii) Landlord and Tenant do not
intend for the first sentence of this Subsection 13.1(B) to amend or alter
any of the rights or obligations of Landlord or any affiliate of Landlord
or Tenant or any affiliate of Tenant under the "Option Documents" (as
hereinafter defined), and in the event of any conflict between the first
sentence of this Subsection 13.1(B) and the Option Documents, the terms of
the Option Documents shall control. The "Option Documents" shall be deemed
to be the Acquisition, Option and Cooperation Agreement dated as of October
6, 1993 between North Parcel Limited Partnership (an affiliate of Landlord
and Tenant) and Tenant (the "Option Agreement") and the "Transaction
Documents" (as defined in the Option Agreement) defined therein, including,
without limitation, the Indemnity Agreement Regarding Hazardous Materials
dated October 6, 1993 from Biogen, Inc. and Biogen Realty Limited
Partnership (an affiliate of Tenant), the ground Lease dated October 6,
1993 between Biogen Realty Limited Partnership and North Parcel Limited
Partnership respecting Tract V of Parcel 2 of the Xxxxxxx Square Urban
Renewal Area, the Exclusive Easement and Option Agreement dated October 6,
1993 between the Cambridge Redevelopment Authority and North Parcel Limited
Partnership respecting Xxxxx
-00-
00
XX xx Xxxxxx 0 of the Xxxxxxx Square Urban Renewal Area and the
Unconditional Guaranty and Indemnity of Biogen, Inc. dated October 6, 1993.
14. Tenant acknowledges that the beneficial interest in Landlord has been
transferred to Boston Properties Limited Partnership, a Delaware limited
partnership, the sole general partner of which is Boston Properties, Inc.,
a Delaware corporation which is a publicly traded real estate investment
trust and such transfer is a "REIT Transaction" (as defined in Section
16.32 (A) (2) of the Lease added to the Lease pursuant to Section 5 of the
Fourth Amendment) and is not subject to Tenant's rights under said Section
16.32. To reflect such transfer the following amendments are made to the
Lease:
(A) The words "(including, without limitation, Boston Properties Limited
Partnership, Boston Properties, Inc. and their officers, directors and
employees)" are substituted in the place of the following:
(i) the parenthetical in the ninth (9th) and tenth (10th) lines
of Section 16.31 (H) of the Lease added to the Lease
pursuant to Section 4 of the Fourth Amendment, and
(ii) the parenthetical in the tenth (10th) and eleventh (11th)
lines from the end of Section 9 of the Fourth Amendment.
(B) The words "(including, but not limited to, Boston Properties Limited
Partnership, Boston Properties, Inc., Xxxxxxxx X. Xxxxxxxxx, Xxxxxx X.
Xxxxx and/or affiliates of any of the foregoing)" are substituted in
place of the following:
(i) the parenthetical in the ninth (9th) through twelfth (12th) lines
of Section 16.31 (Q) of the Lease;
(ii) the parenthetical in third (3rd) through sixth (6th) lines of
Section 16.32 (A) (2) of the Lease, and
(iii) the parenthetical in the fifth (5th) through the eighth (8th)
lines from the end of Section 16.32 (A) (3) of the Lease.
(C) The words "(or any affiliates of Landlord, including, but not limited
to, Boston Properties Limited Partnership, Boston Properties, Inc.,
Xxxxxxxx X. Xxxxxxxxx, Xxxxxx X. Xxxxx and other affiliates of any of
the foregoing)" are substituted in place of the following:
(i) the parenthetical in the seventh (7th) through the eleventh
(11th) lines of Section 16.32 (D) (1) of the Lease;
-19-
20
(ii) the parenthetical on the sixth (6th) line through the tenth
(10th) lines from the end of Section 16.32 (D) (3) (a) of the
Lease; and
(iii) the parenthetical on the fifth (5th) through the ninth (9th)
lines from the end of Section 16.32 (D) (3) (b) of the Lease.
(D) Subsection (iii) of both Sections 16.32 (D) (4) (a) and 16.32 (D) (4)
(b) of the Lease are deleted in their entirety and replaced with the
following:
"(iii) any offer to sell, sale or transfer of the Demised Premises or
any interest in the Demised Premises to any firm, entity, or
business organization in which at the time of the sale or
transfer Boston Properties, Inc. and/or Boston Properties
Limited Partnership directly or indirectly own(s) at least
fifty percent(50%) of or otherwise controls.
15. Landlord and Tenant each represents and warrants to the other that it has
not dealt with any real estate brokers or other persons or entities which
have been, are or will be entitled to any broker's or finder's fee or any
similar commission or fee in connection with this Fifth Amendment
(including, without limitation, the transactions contemplated by Sections
16.31 and 16.32 of the Lease and added to the Lease pursuant to the Fourth
Amendment and as herein amended) except Fallon, Xxxxx & X'Xxxxxx (the
"Recognized Broker"). Landlord and Tenant each agree to indemnify, hold
harmless, protect and defend the other from and against any and all loss,
damage, liability and expense, including costs and reasonable attorneys'
fees which such other party incurs or sustains by reason of the breach by
the indemnifying party of its foregoing warranties and representations.
Landlord covenants and agrees that it shall be solely responsible for and
shall pay to the Recognized Brokerage a commission in the amount of One
Hundred Thirty Five Thousand Dollars ($135,000.00) in connection with this
Fifth Amendment which shall be the sole fee or commission due the
Recognized Broker for the transaction evidenced by this Fifth Amendment.
The provisions hereof shall survive the expiration or any termination of
this Lease (as herein amended), the expiration or any termination of
Section 16.31 and/or Section 16.32 of the Lease and/or the delivery of any
deed of the Demised Premises to Tenant pursuant to Section 16.31 of the
Lease, Section 16.32 of the Lease or otherwise.
16. Concurrently with the execution of this Fifth Amendment to Lease, Landlord
shall deliver to Tenant a Trustees' Certificate respecting the authority to
enter into this Fifth Amendment To Lease and Tenant shall deliver to
Landlord a corporate vote evidencing the authority of Tenant to enter into
this Fifth Amendment to Lease.
-20-
21
17. All capitalized terms and words used in this Amendment shall have the same
meaning as set forth in the Lease unless a contrary meaning is expressly
set forth herein.
18. Except as expressly amended hereby, the Lease and its terms and provisions
shall remain unchanged and in full force and effect.
EXECUTED under seal as of the date and year first above written.
WITNESS: LANDLORD:
-------------------- ---------------------------
XXXXXX X. XXXXX, TRUSTEE OF
FOURTEEN CAMBRIDGE CENTER
TRUST AND NOT INDIVIDUALLY
TENANT:
BIOGEN, INC.
By: _______________________
Name: XXXXX X. XXXXX
Title: (VICE PRESIDENT)
---------------------
ATTEST:
By:______________________________ By:________________________
Name:____________________________ Name:_________________________
Title: CLERK (ASSISTANT CLERK) Title: TREASURER (OR ASSISTANT
--------------------------- ------------------------
TREASURER)
------------------------------
-21-
