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EXHIBIT 10.7
LEASE
DATED: OCTOBER 28, 1994
MASSACHUSETTS INSTITUTE OF TECHNOLOGY, LESSOR
FREE RADICAL SCIENCES, INC., LESSEE
000 XXXXXXXX XXXXX, XXXXXXXXX, XXXXXXXXXXXXX
TABLE OF CONTENTS
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1.0 Parties and Premises.................................. 1
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1.1 Parties and Premises............................. 1
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1.2 Common Areas..................................... 1
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1.3 Cafeteria Expansion.............................. 2
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2.0 Term ................................................. 2
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2.1 Term; Commencement Date.......................... 2
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2.2 Extension Option................................. 2
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3.0 Rent ................................................. 3
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3.1 Payment of Rent.................................. 3
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3.2 Computation of Basic Rent........................ 3
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3.3 Determination of Fair Market Rent................ 3
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4.0 Permitted Uses........................................ 7
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5.0 Taxes; Operating Expenses............................. 7
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5.1 Taxes............................................ 7
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5.2 Operating Expenses............................... 8
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5.3 Payment of Taxes and Operating Expenses.......... 10
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5.4 Abatement of Taxes............................... 11
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5.5 Audit of Books and Records....................... 12
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6.0 Electric Service; Payment as Additional Rent.......... 12
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7.0 Insurance............................................. 12
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7.1 Public Liability Insurance....................... 12
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7.2 Casualty Insurance............................... 13
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7.3 Certificate of Insurance......................... 13
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7.4 Lessor's Insurance............................... 13
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7.5 Waiver of Subrogation............................ 14
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7.6 Waiver of Rights................................. 14
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8.0 Assignment and Subletting............................. 15
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9.0 Parking............................................... 19
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10.0 Late Payment of Rent.................................. 19
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11.0 Lessee's Covenants.................................... 20
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12.0 Construction.......................................... 27
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13.0 Casualty and Eminent Domain........................... 27
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13.1 Substantial Taking............................... 27
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13.2 Partial Taking................................... 27
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13.3 Awards........................................... 27
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13.4 Substantial Casualty............................. 28
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13.5 Repair and Restoration........................... 28
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14.0 Defaults; Events of Default; Remedies................. 29
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14.1 Defaults; Events of Default...................... 29
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14.2 Termination...................................... 30
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14.3 Survival of Covenants............................ 31
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14.4 Damages.......................................... 31
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14.5 Right to Relet................................... 32
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14.6 Right to Equitable Relief........................ 33
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14.7 Right to Self Help............................... 33
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14.8 Further Remedies................................. 33
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15.0 Real Estate Broker.................................... 33
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16.0 Notices............................................... 34
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17.0 No Waivers............................................ 35
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18.0 Services Provided by Lessor........................... 35
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19.0 Ground Leases; Mortgages.............................. 35
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19.1 Rights of Ground Lessors and Mortgagees.......... 35
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19.2 Lease Subordinate................................ 36
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20.0 Notices of Lease; Estoppel Certificates............... 36
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21.0 Holding Over.......................................... 37
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22.0 Force Majeure......................................... 37
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23.0 Entire Agreement...................................... 37
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24.0 Security Deposit...................................... 37
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25.0 Warrants.............................................. 38
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26.0 Successors and Assigns................................ 38
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27.0 Applicable Law, Severability and Construction......... 39
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28.0 Quiet Enjoyment....................................... 39
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29.0 Authority............................................. 39
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EXHIBIT A: Plan of the Premises
EXHIBIT B: Plan of the Land
EXHIBIT C: Work Letter
EXHIBIT D: Lessor's Services
EXHIBIT E: Lessee' Services
EXHIBIT F: Warrant Agreement
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LEASE
Dated: October 28, 1994
1.0 Parties and Premises.
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1.1 PARTIES AND PREMISES. MASSACHUSETTS INSTITUTE OF
TECHNOLOGY ("Lessor") hereby LEASES unto FREE RADICAL
SCIENCES, INC. ("Lessee"), the following premises:
7,736 square feet of rentable area, shown as the
cross-hatched area on EXHIBIT A attached hereto (the
"Premises") located on the west side of the third
floor of the building known as and numbered 000
Xxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx, containing a
total of 182,124 rentable square feet (the
"Building"), which is located on the parcel of land
shown on EXHIBIT B attached hereto (the "Land"),
together with the benefit of, and subject to (as the case
may be) all rights, easements, covenants, conditions,
encumbrances, encroachments and restrictions of record as
of the date of this Lease. Lessor shall have the right,
without the necessity of obtaining Lessee's consent thereto
or joinder therein, to grant, permit, or enter into during
the term of this Lease such additional rights, easements,
covenants, conditions, encumbrances, encroachments and
restrictions with respect to the Land as Lessor may deem
appropriate, PROVIDED THAT no such rights, easements,
covenants, conditions, encumbrances, encroachments or
restrictions shall materially affect Lessee's use of the
Premises for the "Permitted Uses" (as defined in Section
4.0 below).
Lessor hereby reserves the right to maintain, use, repair
and replace pipes, ducts, wires, meters and any other
equipment, machinery, apparatus and fixtures located within
the Premises and serving other parts of the Building.
Lessee, its employees and invitees shall have access to the
Premises at all times, subject to Lessor's reasonable
security procedures.
1.2 COMMON AREAS. Lessor also grants to Lessee, and Lessee's
invitees, the right, in common with others entitled
thereto, to use for the purposes for which they were
designed, the common facilities of the Building, including
but not limited to, all entrances, hallways, elevator
foyers, air shafts, elevator shafts
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and elevators, stairwells and stairs, restrooms, passenger
elevators, freight elevator, loading bays, and the "Parking
Area" (as defined in Section 9.0 below) (collectively, the
"Common Areas"). Lessor hereby reserves the right to close
the cafeteria in the Building.
1.3 CAFETERIA EXPANSION. In the event that at any time during
the Term, Lessor determines, after consulting the tenants
of the Building, to expand the cafeteria in the Building
(which expansion is anticipated to involve adding
approximately 2,600 usable square feet to the common area
of the Building), Lessor shall so notify Lessee and all
other tenants of the Building and include in such notice a
recalculation of the rentable area of each of their
premises to reflect the increase in the common area of the
Building. Such notices shall be effective upon the opening
for business of the expansion portion of the cafeteria. Any
such expansion of the cafeteria shall be performed at
Lessor's sole cost and no portion of such cost shall be
included in "Operating Expenses" (as hereinafter defined).
2.0 Term; Commencement Date; Extension Option.
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2.1 TERM; COMMENCEMENT DATE. The initial term of this Lease
(the "Initial Term") shall commence on the "Commencement
Date" (as defined in the Work Letter attached hereto as
EXHIBIT C), and expire on the day immediately preceding the
fifth (5th) anniversary thereof, unless sooner terminated
as hereinafter provided. For purposes of this Lease, the
phrase "Term" shall mean collectively (a) the Initial Term,
and (b) if Lessee duly exercises the "Extension Option,"
the "Extension Term" (as these phrases are defined in
Section 2.2 below).
2.2 EXTENSION OPTION. (a) Lessee acknowledges that its option
to extend the Term of this Lease as provided in this
Section 2.2 (the "Extension Option") for a term of five (5)
additional years (unless sooner terminated as hereinafter
provided) (the "Extension Term"), is subject to prior
rights of Lifeline Systems, Inc., Endogen, Incorporated,
and Pathology Services, Inc. (collectively, the "Offerees")
to lease the Premises upon the expiration of the Initial
Term. Lessor shall give written notice of the availability
for lease of the Premises upon the expiration of the
Initial Term to each of the Offerees prior to the
commencement of
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the last Lease Year of the Initial Term, offering to lease
the Premises upon the terms set forth in Lessor's written
offer. After Lessor receives the response of all of the
Offerees (or if no response is received by Lessor within
the time provided therefor), Lessor shall give written
notice (the "Availability Notice") to Lessee of whether the
Premises are available to Lessee for the exercise of its
Extension Option. Lessor shall give the Availability Notice
to Lessee not later than the first day of the fifth Lease
Year.
(b) Provided that (x) none of the Offerees accepts Lessor's
offer to lease the Premises upon the expiration of the
Initial Term, and (y) no "Event of Default" (as defined in
Section 14.1 below) has occurred prior to the day on which
Lessor gives the Availability Notice or prior to the first
day of the Extension Term, and (z) the Lessee named herein
is actually occupying the entire Premises as of each of the
dates described in the preceding clause (y), Lessee shall
have the option to exercise the Extension Option by giving
written notice thereof ("Lessee's Exercise Notice") to
Lessor within two (2) months after Lessor gives the
Availability Notice to Lessee. If Lessee gives Lessee's
Exercise Notice to Lessor within such 2-month period, then
(subject to the rescission of Lessee's Exercise Notice as
provided in Section 3.3 below), the Lease Term shall be
extended for the Extension Term subject to all the terms of
this Lease except for the change in Basic Rent as provided
in Section 3.2(c) of this Lease. If Lessee fails to give
such notice to Lessor within such time, Lessee shall be
deemed to have waived the right to exercise the Extension
Option.
(c) Lessor agrees from and after the date of this Lease not
to grant to any third party any right to lease all or any
portion of the Premises upon the expiration of the Initial
Term which right would be superior to the Extension Option
granted in this Section 2.2 to Tenant.
3.0 Rent.
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3.1 PAYMENT OF RENT. Lessee shall pay Lessor, without offset or
deduction and without previous demand therefor, as items
constituting rent (collectively, "Rent"):
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(a) Basic rent ("Basic Rent") at the rate hereinafter
set forth, in equal monthly installments, in
advance, commencing on the Commencement Date, and
continuing thereafter on the first day of each
calendar month or portion thereof during the
Term. Basic Rent shall be PRO-RATED for partial
months occurring at the beginning or the end of
the Term; and
(b) All other costs, charges, or expenses which
Lessee in this Lease agrees to pay, or which
Lessor pays or incurs as the result of a default
by Lessee hereunder, including any penalty or
interest which may be added for nonpayment or
late payment thereof as provided in this Lease
(collectively, "Additional Rent"). All recurring
payments of Additional Rent, such as payment on
account of "Taxes" and "Operating Expenses" (as
these terms are hereinafter defined), shall be
due and payable on the same day on which Basic
Rent is due. Unless otherwise specifically
provided in this Lease, all non-recurring items
constituting Additional Rent shall be due and
payable within ten (10) days after written demand
therefor by Lessor.
All payments shall be made to Lessor or such agent, and at
such place, as Lessor shall, from time to time, in writing
designate, the following being now so designated:
Xxxxxxxx & Grew, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Attention: Xxxxxxx Xxxxxx
3.2 COMPUTATION OF BASIC RENT. Basic Rent shall be due
and payable hereunder in the following amounts:
(a) for each of the first two (2) Lease Years in the
Initial Term, $13.50 per rentable square foot of area
per Lease Year ($104,436.00 per Lease Year), in
installments of $8,703.00 per month;
(b) for each of the remaining three (3) Lease Years in the
Initial Term, $16.00 per rentable square foot of area
per Lease Year ($123,776.00 per Lease Year), in
installments of $10,314.67 per month; and
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(c) for each Lease Year in the Extension Term, an amount
equal to the "Fair Market Rent" (as defined in Section
3.3 below) of the Premises as of the first day of the
Extension Term.
As used in this Lease, "Lease Year" means the twelve (12)
month period commencing on the Commencement Date, or a
successive twelve (12) month period included in the Term
commencing on an anniversary of that day, but if the
expiration of the Term or the earlier termination of the
Lease does not coincide with the termination of such a
twelve (12) month period, the term "Lease Year" shall mean
the portion of such twelve (12) month period before such
expiration or termination.
3.3 DETERMINATION OF FAIR MARKET RENT. As used in this Lease,
"Fair Market Rent" means the effective fair market rent for
the Premises in its "as is" condition, including those
portions of the "Initial Improvements" (as defined in the
Work Letter attached hereto as EXHIBIT C) and "Alterations"
(as defined in Section 11.0(f) below) which Lessee is not
permitted or required hereunder to remove at the expiration
or earlier termination of this Lease), as of the day with
respect to which such determination is being made, for a
term of five (5) years. Fair Market Rent shall be based
upon the rents generally in effect for similar premises for
office/research and development uses in similar buildings
in the Cambridge, Massachusetts area in which the Premises
is located, adjusted to a "net" lease basis, taking into
account all facts and circumstances customarily taken into
account by prudent and commercially reasonable lessors and
lessees including, without limitation, concessions then
customarily granted to lessees of similar premises for
similar uses in similar buildings in the Cambridge,
Massachusetts area in which the Premises is located, but
specifically excluding moving allowances.
Within ten (10) days after Lessor receives Lessee's
Exercise Notice, Lessor shall provide to Lessee Lessor's
good faith determination of Fair Market Rent. If Lessor and
Lessee are unable to agree on the Fair Market Rent within
thirty (30) days thereafter, then Lessee shall have the
right, by giving written notice to Lessor within ten (10)
days after the expiration of such 30-day period, to rescind
its exercise of the Extension Option, in which case the
Lease Term shall expire on the last day of the Initial
Term. If Lessee
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does not give such notice of rescission to Lessor within
such 10-day period, then Lessor and Lessee shall, not later
than thirty (30) days after the expiration of such initial
30-day period, each retain a real estate professional with
at least ten (10) years' continuous experience in the
business of appraising or marketing commercial real estate
in the Cambridge, Massachusetts vicinity, who shall, within
thirty (30) days of his or her selection, prepare a written
report summarizing his or her conclusion as to Fair Market
Rent. Lessor and Lessee shall simultaneously exchange such
reports; PROVIDED, HOWEVER, that if one party has not
obtained such a report within such 30-day period, then the
determination set forth in the other party's report shall
be final and binding upon the parties. If both parties
receive reports within such time and the lesser of the two
determinations is within ten (10%) percent of the higher
determination, then the average of these determinations
shall be deemed to be Fair Market Rent. If these
determinations differ by more than ten (10%) percent, then
Lessor and Lessee shall mutually select a person with the
qualifications stated above (the "Final Professional") to
resolve the dispute as to Fair Market Rent. If Lessor and
Lessee cannot agree upon the designation of the Final
Professional within thirty (30) days of the exchange of the
first valuation reports, either party may apply to the
American Arbitration Association, the Greater Boston Real
Estate Board, or any successor thereto for the designation
of a Final Professional. Within ten (10) days of the
selection of the Final Professional, Lessor and Lessee
shall each submit to the Final Professional a copy of their
respective real estate professional's determination of Fair
Market Rent. The Final Professional shall not perform his
or her own valuation but rather shall, within thirty (30)
days after such submissions, select the submission which is
closest to the determination of Fair Market Rent which the
Final Professional would have made acting alone. The Final
Professional shall give notice of his or her selection to
Lessor and Lessee and such decision shall be final and
binding upon Lessor and Lessee. Each party shall pay the
fees and expenses of its real estate professional and
counsel, if any, in connection with any proceeding under
this paragraph, and the losing party shall pay the fees and
expenses of the Final Professional.
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In the event that Fair Market Rent has not been finally
determined in the manner provided above as of the first day
of any Extension Term, then Basic Rent shall be due and
payable at the rate stated by Lessor as its good faith
estimate of Fair Market Rent, and Lessor and Lessee shall
make such adjustment (and payment or credit as necessary)
within thirty (30) days after Fair Market Rent is finally
determined.
4.0 PERMITTED USES. The Premises shall be occupied continuously
by Lessee and used for the following purposes (the
"Permitted Uses") only and for no other:
Office/research and development and accessory laboratory
uses; in each case to the extent permitted as a matter of
right under the Zoning Ordinance of the City of Cambridge
as of the date of this Lease.
5.0 TAXES; OPERATING EXPENSES.
5.1 TAXES. Lessee shall pay as Additional Rent its pro rata
share ("Lessee's Share") of all taxes, special or general
assessments, water rents, rates and charges, sewer rents
and other impositions and charges imposed by governmental
authorities of every kind and nature whatsoever,
extraordinary as well as ordinary and each and every
installment thereof which shall or may during the Term be
charged, levied, laid, assessed, imposed, become due and
payable or become liens upon or for or with respect to the
Land or any part thereof and the Building or the Premises,
or appurtenances or equipment owned by Lessor thereon or
therein or any part thereof, or on this Lease, and any tax
based on a percentage fraction or capitalized value of the
Rent (whether in lieu of or in addition to the taxes
hereinbefore described) (collectively, "Taxes"). Taxes
shall not include inheritance, estate, excise, succession,
transfer, gift, franchise, income, gross receipt, or profit
taxes except to the extent such are in lieu of or in
substitution for Taxes as now imposed on the Building, the
Land, the Premises or this Lease (and if any such tax rate
is based upon Lessor's income, such tax shall be applied to
the Building and the Land as if they were the only
income-generating real property owned by Lessor in the
Commonwealth of Massachusetts). "Lessee's Share" shall be
computed on the basis of a fraction whose numerator is the
number of rentable square feet in the Premises and whose
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denominator is the total number of rentable square feet in
the Building. As of the date hereof, Lessee's Share is
4.25%.
5.2 OPERATING EXPENSES. Lessee shall pay as Additional Rent
Lessee's Share of all expenses, costs, and disbursements of
every kind and nature (collectively, "Operating Expenses")
which Lessor shall pay or become obligated to pay in
connection with the ownership, operation and maintenance of
the Building or the Land, including all facilities in
operation on the Commencement Date and such additional
facilities in subsequent years as may be determined by
Lessor to be necessary or beneficial for the operation of
the Building or the Land or the provision of services to
lessees, including, but not limited to:
(a) all salaries, wages, fringe benefits, payroll taxes
and workmen's compensation insurance premiums related
thereto of and for employees engaged in the operation
of the Building and the Land (with respect to
employees who are engaged in the operation of other
properties as well as the Building and the Land,
these amounts shall be prorated on the basis of the
relative amount of time spent by such employees on
the various properties);
(b) painting, repairs, maintenance and cleaning of all
Common Areas;
(c) utilities (including, without limitation, electricity,
water, sewer and gas) for all interior Common Areas
and lighting of exterior areas and the "Parking Area"
(as defined in Section 9.0 below);
(d) maintenance and repair of the Building heating and
cooling systems, the plumbing systems, the fire
detection and suppression systems, the electrical
system and the elevators;
(e) all maintenance, janitorial, and service agreements;
(f) all insurance, including the cost of casualty and
liability insurance applicable to the Parking Area,
the Land, the Building and Lessor's personal property
used in connection therewith,
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including the amount of any reasonable deductible
payable by Lessor in making repairs and restoration
after a casualty;
(g) maintenance of landscaped areas and paved areas, and
snow removal;
(h) maintenance of the Building security system;
(i) management fees not in excess of those customarily
charged in arm's length transactions for properties
comparable to the Land and the Building in the
vicinity of the Building, and the fair market value of
office space for the manager of the Building;
(j) capital items which are for the purpose of reducing
Operating Expenses or upgrading services or which are
required by a governmental authority or the provisions
of any insurance policy which is first adopted or
first becomes applicable to the Premises, the Building
or the Land after the date of this Lease, amortized
over the reasonable life of the capital items on a
straight line basis with the reasonable life being
determined by Lessor in accordance with generally
accepted accounting principles;
(k) reasonable expenses incurred in pursuing an
application for an abatement of Taxes pursuant to
Section 5.4 below;
(l) legal (excluding legal fees with respect to lease
negotiations and enforcement of lease terms against
lessees), accounting and other professional fees and
disbursements (excluding leasing commissions);
(m) all costs and expenses incurred by Lessor in
connection with the operation of the cafeteria in
the Building; PROVIDED, HOWEVER, that notwithstanding
anything to the contrary contained in this Lease,
(i) all subsidies or other amounts payable by Lessor
to the cafeteria operator, (ii) the cost of all
services which are separately invoiced to Lessor for
the cafeteria (e.g., cleaning), and (iii) the cost to
Lessor of supplying to the cafeteria separately
metered utilities shall be allocated 100% among the
occupants of the Building at the time that these
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costs and expenses are incurred and no portion of
these costs and expenses shall be borne by Lessor; and
PROVIDED FURTHER that this item (m) shall be included
in Operating Expenses hereunder only for so long as
the cafeteria is available to all tenants of the
Building on an equal basis;
(n) services to be provided by Lessor as set forth on
EXHIBIT D attached.
There shall be excluded from "Operating Expenses" for the
purposes of this Lease (1) costs and expenses incurred by
Lessor in connection with the removal or remediation of
"Hazardous Materials" (as hereinafter defined) present in
the Building, or in, on or under the surface of the Land,
as of the date of this Lease, or (2) the correction of
construction defects in the Building.
In the event that the average occupancy rate for the
Building is less than ninety-five (95%) percent for any
fiscal year, then for purposes of calculating Operating
Expenses, the Operating Expenses for such fiscal year shall
be increased by the additional costs and expenses that
Lessor reasonably estimates would have been incurred if the
average occupancy rate had been ninety-five (95%) percent
for such fiscal year. It is not the intent of this
provision to permit Lessor to charge Lessee for any
Operating Expenses attributable to unoccupied space, or to
seek reimbursement from Lessee for costs Lessor never
incurred. Rather, the intent of this provision is to allow
Lessor to recover only those increases in Operating
Expenses properly attributable to occupied space in the
Building and this provision is designed to calculate the
actual cost of providing a variable Operating Expense
service to the portions of the Building receiving such
service. This "gross-up" treatment shall be applied only
with respect to variable Operating Expenses arising from
services provided to leased space in the Building in order
to allocate equitably such variable Operating Expenses to
the lessees of the Building.
5.3 PAYMENT OF TAXES AND OPERATING EXPENSES. On or about the
Commencement Date, and thereafter within a reasonable time
after the end of each fiscal year (or portion thereof)
included in the Term, Lessor shall deliver to Lessee (i) a
statement of actual Operating Expenses and Taxes for the
fiscal year just ended,
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together with reasonable supporting documentation therefor,
and (ii) a budget of Operating Expenses and Taxes for the
then-current fiscal year based on the actual Operating
Expenses and Taxes for the preceding year and projected
increases or decreases reasonably anticipated by Lessor.
Commencing on the Commencement Date Lessee shall pay to
Lessor, as Additional Rent, on account of its share of
anticipated Operating Expenses and Taxes for the
then-current year, 1/12th of the total annualized amount of
Lessee's Share of Operating Expenses and Taxes as shown on
such budget (but if such budget is delivered by Lessor
after the Commencement Date, then Lessee shall commence
such payments on the next day on which Basic Rent is due
and payable hereunder after such delivery, but Lessee shall
pay on such date all installments of Taxes and Operating
Expenses accrued from the Commencement Date to such date).
Lessor reserves the right to revise the budget during any
fiscal year to cause it to more accurately reflect the
actual Taxes or Operating Expenses being paid or incurred
by Lessor, and upon any such revision the parties shall
make adjustments in the same time and manner as hereinafter
provided for fiscal year-end adjustments. Upon delivery to
Lessee of the statement of actual Operating Expenses and
Taxes for the preceding fiscal year, Lessor shall adjust
Lessee's account accordingly. If the total amount paid by
Lessee on account of the preceding fiscal year is less than
the amount due hereunder, Lessee shall pay the balance due
within twenty (20) days after delivery by Lessor of such
statement. If the total amount paid by Lessee on account of
the preceding fiscal year exceeds the amount due hereunder,
such excess shall be credited by Lessor against the monthly
installments of Additional Rent next falling due or
refunded to Lessee upon the expiration or termination of
this Lease. Lessor's current fiscal year is July 1-June 30,
but Lessor reserves the right to change the fiscal year at
any time during the Term.
5.4 ABATEMENT OF TAXES. Lessor may at any time and from time to
time make application to the appropriate governmental
authority for an abatement of Taxes. If (i) such an
application is successful and (ii) Lessee has made any
payment in respect of Taxes pursuant to Section 5 for the
period with respect to which the abatement was granted,
Lessor shall (a) pay to Lessee Lessee's Share (adjusted for
any period for which Lessee had made a partial payment) of
the abatement,
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with interest, if any, paid by the governmental authority
on such abatement, and (b) retain the balance, if any.
5.5 AUDIT OF BOOKS AND RECORDS. Lessee shall have the right, at
Lessee's sole expense, upon reasonable advance written
request to Lessor, to audit, or to cause its designees to
audit, Lessor's books and records relating to Operating
Expenses and Taxes for the fiscal year just ended (and not
for any other fiscal year) by giving written notice to
Lessor within sixty (60) days after Lessee's receipt of the
statement described in Section 5.3 above. Any such audit
shall be conducted during Lessor's normal business hours at
the location at which Lessor maintains the books and
records relating to the Building, and shall be concluded
within thirty (30) days after it is commenced. During the
pendency of such audit, Tenant shall continue to make
payments on account of Operating Expenses at the time, in
the manner, and in the amounts set forth in the preceding
sections of this Section 5.0. If, after such audit, a
certified public accountant certifies in writing to Lessor
and Lessee that the Operating Expenses for the fiscal year
just ended differed by more than five (5%) percent from
those set forth in the statement delivered by Lessor to
Lessee pursuant to Section 5.3 above, then there shall be
an adjustment made between Lessor and Lessee in the manner
provided in Section 5.3 above.
6.0 ELECTRIC SERVICE; PAYMENT AS ADDITIONAL RENT. Lessee shall make
its own arrangements for the provision of electricity to the
Premises, and shall pay when due, as Additional Rent, all charges
therefor directly to the company which provides such electrical
service. Lessor hereby represents to Lessee that electricity will
be made available to Lessee at the Premises at the utility
company's customary rates therefor.
7.0 INSURANCE
7.1 PUBLIC LIABILITY INSURANCE. Lessee shall take out and
maintain in force throughout the Term (and for so long
thereafter as Lessee remains in occupancy) comprehensive
public liability insurance naming Lessor and persons
claiming by, through or under Lessor as additional
insureds, against all claims and demands for any injury to
persons or property which may be claimed to have occurred
on the Premises, the Building, the Land or on the ways
adjoining the Land,
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in an amount which at the beginning of the Term shall not
be less than $1,000,000 for personal injury or death or
property damage per occurrence, and $3,000,000 in the
aggregate for personal injury or death or property damage,
or such higher amounts as Lessor thereafter reasonably
determines to be consistent with sound commercial practice
in Cambridge. Such policy shall also include contractual
liability coverage covering Lessee's liability assumed
under this Lease.
7.2 CASUALTY INSURANCE. Lessee shall take out and maintain
throughout the Lease Term a policy of fire, vandalism,
malicious mischief, extended coverage and so-called all
risk coverage insurance insuring "Lessee's Property" (as
defined in Section 11.0(i) below) for the benefit of Lessor
and Lessee, as their respective interests may appear, in an
amount equal to the replacement value thereof. Lessor shall
be named as a certificate holder on such policy. Lessor
shall, at Lessee's cost and expense, cooperate fully with
Lessee and execute any and all consents and other
instruments and take all other actions necessary to obtain
the largest possible recovery. Lessor shall not carry any
insurance concurrent in coverage and contributing in the
event of loss with any insurance required to be furnished
by Lessee hereunder if the effect of such separate
insurance would be to reduce the protection or the payment
to be made under Lessee's insurance.
7.3 CERTIFICATE OF INSURANCE. The insurance required by
Sections 7.1 and 7.2 above shall be placed with insurers
reasonably satisfactory to Lessor and authorized to do
business in Massachusetts. Such insurance shall provide
that it shall not be amended or canceled with respect to
the additional insureds or certificate holders without
thirty (30) days' prior written notice to each of them.
Lessee shall furnish to Lessor certificates of insurance
for all insurance required to be maintained by Lessee under
this Lease, together with evidence satisfactory to Lessor
of the payment of all premiums for such policies. Lessee,
at Lessor's request, shall also deliver such certificates
and evidence of payment of premiums to the holder of any
mortgage affecting the Land and Building.
7.4 LESSOR'S INSURANCE. Lessor shall take out and maintain in
force throughout the Term, in a company or companies
authorized to do business in Massachusetts,
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casualty insurance on the Building (exclusive of "Lessee's
Property" (as defined in Section 11.0(i) below)) in an
amount equal to the full replacement cost of the Building
(exclusive of foundations and those items set forth in the
preceding parenthetical in this sentence), covering all
risks of direct physical loss or damage and so-called
"extended coverage" risks. This insurance may be maintained
in the form of a blanket policy covering the Building as
well as other properties owned by Lessor. Notwithstanding
the foregoing provisions of this Section 7.4, while the
Massachusetts Institute of Technology is the lessor
hereunder, it shall have the right, at any time during the
Term, to self-insure all or any portion of the coverages
required by this Section.
7.5 WAIVER OF SUBROGATION. To the extent to which a waiver of
subrogation clause is available, Lessor and Lessee shall
obtain a provision in all insurance policies carried by
such party covering the Premises, including but not limited
to contents, fire and casualty insurance, expressly waiving
any right on the part of the insurer against the other
party. If extra cost is chargeable for such provision, then
the party requesting such provision shall pay such extra
cost. Notwithstanding the foregoing, with respect to such
portion of the Term during which Lessor elects to
self-insure under Section 7.4 above, then for purposes of
this Section 7.5, Lessor shall be deemed to have maintained
fire and all-risk coverage in an amount equal to one
hundred (100%) percent of the replacement cost of the
Building (subject to the exceptions and exclusions set
forth in Section 7.4 above) with a waiver of subrogation
clause contained therein.
7.6 WAIVER OF RIGHTS. All claims, causes of action and rights
of recovery for any damage to or destruction of persons,
property or business which shall occur on or about the
Premises, the Building or the Land, which result from any
of the perils insured under any and all policies of
insurance maintained by Lessor or Lessee, are waived by
each party as against the other party, and the officers,
directors, employees, contractors, servants and agents
thereof, regardless of cause, including the negligence of
the other party and its respective officers, directors,
employees, contractors, servants and agents, but only to
the extent of recovery, if any, under such policy or
policies of insurance; PROVIDED, HOWEVER, that (i)
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this waiver shall be null and void to the extent that any
such insurance shall be invalidated by reason of this
waiver, and (ii) with respect to such portion of the Term
during which Lessor elects to self-insure under Section 7.4
above, then for purposes of this Section 7.6, Lessor shall
be deemed to have maintained fire and all-risk coverage in
an amount equal to one hundred (100%) percent of the
replacement cost of the Building (subject to the exceptions
and exclusions set forth in Section 7.4 above).
8.0 ASSIGNMENT AND SUBLETTING. (a) Except as hereinafter provided in
subparagraph (j) of this Section 8.0, Lessee shall not mortgage,
pledge, hypothecate, grant a security interest in, or otherwise
encumber this Lease or any sublease hereinafter entered into by
Lessee, or assign this Lease, or sublease the Premises or any
portion thereof (the term "sublease" shall be deemed to include
any arrangement pursuant to which a third party is permitted by
Lessee to occupy all or any portion of the Premises), without
obtaining, on each occasion, the prior written consent of Lessor,
which consent shall not be unreasonably withheld as to an
assignment or sublease. Notwithstanding anything to the contrary
herein contained, Lessee shall not have the right to assign this
Lease or to sublet any portion of the Premises prior to the first
anniversary of the Commencement Date. Notwithstanding anything to
the contrary herein contained, Lessee shall have the right to
enter into leases or financing arrangements of personal property
placed within the Premises without the necessity of obtaining
Lessor's prior written consent provided that such arrangements
involve only discrete, removable items of personal property which
Lessee identifies by description or serial number in writing to
Lessor at the time Lessee enters into such lease or financing
arrangement.
(b) If Lessee wishes to assign this Lease or sublease all or any
portion of the Premises, Lessee shall so notify Lessor in writing
and request Lessor's consent thereto. Such notice shall include
(i) the name of the proposed assignee or sublessee, (ii) a
general description of the types of business conducted by the
proposed assignee or sublessee and a reasonably detailed
description of the business operations proposed to be conducted
in the Premises by such person or entity, (iii) such financial
information concerning the proposed assignee or sublessee as
Lessor may reasonably require, and (iv) all terms and provisions
upon which such assignment or sublease is proposed to be made,
including a copy of the assignment or sublease-agreement which
Lessee proposes to execute. Lessor shall have fifteen
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(15) business days from the day on which it receives Lessee's
notice and such required information to give notice to Lessee
that either (i) Lessor consents to such assignment or sublease,
or (ii) Lessor withholds its consent to such assignment or
sublease (which consent shall not be unreasonably withheld), in
which event Lessor shall state its reasons therefor in such
notice with reasonable specificity, or (iii) where applicable,
Lessor is exercising its right of recapture pursuant to paragraph
(e) below.
(c) If Lessor consents to an assignment or sublease: (i) Lessee
shall promptly deliver to Lessor a fully executed copy of said
assignment or sublease, which shall be in the form previously
submitted to Lessor for review; (ii) after any such assignment or
sublease, Lessee shall remain primarily liable to Lessor
hereunder (which liability shall be joint and several with the
assignee or sublessee); and (iii) if the aggregate rent and other
amounts payable to Lessee under or in connection with such
assignment or sublease, after deduction of the costs reasonably
incurred by Lessee in entering into such assignment or sublease
(including, without limitation, reasonable attorneys' fees and
expenses, brokerage commissions, and alteration costs amortized
on a straight-line basis over the term of such sublease or, in
the case of an assignment, over the remaining Term of this
Lease), exceeds the Rent payable hereunder with respect to the
portion of the Premises subject to such sublease (or, in the case
of an assignment, the entire Premises), Lessee shall pay to
Lessor, as Additional Rent, one-half (1/2) of the amount of such
excess immediately upon receipt thereof by Lessee.
(d) If Lessor withholds its consent to such assignment or
sublease, Lessee shall not enter into the proposed assignment or
sublease with such person or entity.
(e) If Lessor elects, it shall have the right to consider
Lessee's request for Lessor's consent to any assignment of the
Lease, or a request for Lessor's consent to a sublease which
either (i) has a proposed term (including extension options) of
two years or more, or (ii) would cover ten (10%) percent of the
rentable area of the Premises or more, as an offer to Lessor to
release from this Lease that portion of the Premises which is
proposed to be the subject of such sublease for the term of such
proposed sublease or, in the case of a proposed assignment of
this Lease, the entire Premises for the entire Lease Term. If
Lessor accepts such offer, then (i) in the case of a proposed
sublease, this Lease shall be deemed to be amended as of the
proposed effective date of such sublease so as to delete the
portion
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of the Premises which would have been subject thereto from the
Premises for purposes of this Lease (with a commensurate
adjustment in Rent and Lessee's Share) for the time period of
what would have been the term of such sublease, or (ii) in the
case of a proposed assignment, this Lease shall terminate as of
the proposed effective date of such assignment as if such date
was the last day of the Term.
(f) Regardless of whether Lessor grants such consent, Lessee
shall reimburse Lessor on demand, as Additional Rent, for all out
of pocket costs and expenses (including, without limitation,
attorneys' fees) reasonably incurred by Lessor in responding to a
request for such consent.
(g) Lessee shall not be entitled to enter into any assignment or
sublease, or to request Lessor's consent thereto, during the
continuance of a default hereunder by Lessee.
(h) Any assignment or sublease entered into pursuant to this
Section 8.0 shall be subject to all of the terms and provisions
of this Lease, including without limitation this Section 8.0. If
Lessee enters into any such assignment or sublease, Lessor may,
at any time and from time to time after the occurrence of a
default hereunder, collect rent from such assignee or sublessee,
and apply the net amount collected against Lessee's obligations
hereunder, but no such assignment or sublease or collection shall
be deemed an acceptance by Lessor of such assignee or sublessee
as a lessee hereunder or as a release of the original named
Lessee hereunder.
(i) Notwithstanding anything contained in this Lease, Lessee
shall not enter into any assignment or sublease with any person
or entity if the identity of the assignee or sublessee is
inconsistent with the investment policies of Lessor as set forth
in writing by the Executive Committee of Lessor prior to its
receipt of Lessee's notice of such proposed assignment or
sublease, and any such transaction shall be void ABINITIO. From
time to time during the Term (but not more frequently than once
per Lease Year), Lessee may request in writing that Lessor
deliver to it copies of all investment policies set forth in
writing by the Executive Committee of Lessor since the last
request made by Lessee which are relevant to the Premises or to
this Lease, and Lessor shall provide the same within a reasonable
time after receiving such request. Lessee shall maintain the
confidentiality of all investment policies provided by Lessor
pursuant to this Section, and shall not disclose the
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contents thereof or distribute copies thereof to any persons
whatsoever without the prior written consent of Lessor in each
instance.
(j) In the event that Lessee desires to assign this Lease or to
sublease the Premises (or any portion thereof) to any
corporation, partnership, association or other business
organization directly or indirectly controlling or controlled by
Lessee or under common control with Lessee, or to any successor
by merger, consolidation or purchase of all or substantially all
of the assets or stock of Lessee, Lessee shall give at least
twenty (20) days' prior written notice thereof to Lessor (unless
Lessee is prohibited by applicable laws, codes, rules or
regulations, or by the terms of the operative merger agreement or
purchase and sale agreement from providing notice to Lessor at
such time, in which event such notice shall be provided to Lessor
as soon as Lessee is no longer subject to such prohibition).
Notwithstanding any other provision of this Lease to the
contrary, no consent of Lessor shall be required for any such
assignment or sublease EXCEPT that Lessor shall have the right to
withhold its consent if the identity of the assignee or sublessee
is inconsistent with the investment policies identified in the
foregoing paragraph (i) of this Section. Any assignee or
sublessee which claims an interest in this Lease pursuant to a
transfer of the type described in this paragraph (j) shall be
bound by all of the terms and conditions of this Lease including,
without limitation, those of the foregoing paragraph (i) of this
Section, and if the identity of such assignee or successor is
inconsistent with such investment policies, Lessor shall have the
right to terminate this Lease and to exercise against such
assignee or sublessee the remedies available to Lessor under this
Lease, at law or in equity for a breach of the provisions hereof
by Lessee. For the purpose of this Lease, the sale of Lessee's
capital stock through any public exchange or private placement
shall not be deemed an assignment or sublease of the Lease or of
the Premises and no consent thereto shall be required.
(k) Notwithstanding anything contained in this Lease, Lessee
shall not, either voluntarily or by operation of law, make any
transfer of this Lease or the Premises (or any portion thereof)
which results in Lessee (or anyone claiming by, through or under
Lessee) collecting in connection with the Premises any rental or
other charge based on the net income or on the profits of any
person so as to render any
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part of the Rent due hereunder "unrelated business taxable
income" of Lessor as described in Section 512 of the Internal
Revenue Code of 1986, as amended, and any such transfer shall be
void AB INITIO.
9.0 PARKING. Lessee shall have the right to lease in the parking area
on the Land (the "Parking Area") up to one and one-half (1.5)
spaces per 1,000 square feet of rentable area in the Premises
(the "On-Site Parking Spaces"). Lessee shall have the right to
lease up to twelve (12) parking spaces in the Parking Area.
Lessee shall give written notice to Lessor not later than the
Commencement Date setting forth the number (not to exceed twelve)
of such parking spaces which Lessee will lease as of the
Commencement Date, and Lessee shall have the right to give
further written notice to Lessor during the first nine (9) months
of the Term to increase the number of parking spaces leased by
Lessee (but in no event shall Lessee have the right to lease, in
the aggregate, more than twelve (12) parking spaces in the
Parking Area. Lessee shall have no right to increase the number
of parking spaces leased in the Parking Area after the first nine
(9) months of the Term. Lessee shall pay for each parking space
leased hereunder, as Additional Rent, in advance on the first
calendar day of each month, (i) $60.00 per month for the first
Lease Year, and (ii) thereafter, an amount equal to the Fair
Market Rent of such parking spaces, as determined annually. Fair
Market Rent shall be determined in the manner provided in Section
3.3 above except that if Lessor and Lessee are unable to agree on
Fair Market Rent, it shall be determined by one real estate
professional (rather than by two or three as provided in Section
3.3) who shall have the qualifications stated in said Section and
shall be mutually acceptable to Lessor and Lessee.
10.0 LATE PAYMENT OF RENT. Lessee agrees that in the event that any
payment of Basic Rent or Additional Rent shall remain unpaid at
the close of business on the tenth business day after the same is
due and payable hereunder (without reliance and any applicable
grace period), such payment shall bear interest from the date the
same was due at a rate equal to the "Prime Rate" as published
from time to time in THE WALL STREET JOURNAL while such payment
is overdue PLUS three (3%) percent, which shall be due and
payable by Lessee as Additional Rent as compensation for Lessor's
extra administrative costs in investigating the circumstances of
late Rent. The assessment or collection of such a charge shall
not be deemed to be a waiver by Lessor of any default by Lessee
arising out of such failure to pay Rent when due.
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11.0 LESSEE'S COVENANTS. Lessee covenants, at its sole cost and
expense, during the Term and such further time as Lessee
occupies any part of the Premises:
(a) to pay when due the Basic Rent and all Additional Rent,
and, if separately metered at any time during the Term, all
charges for electricity and other utilities;
(b) damage by fire or casualty and reasonable wear and tear
only excepted, to keep the Premises (including window
glass) in as good order, repair and condition as the same
are in at the commencement of the Term, or may be put in
thereafter;
(c) not to injure, overload or deface the Premises or the
Building, nor to suffer or commit any waste therein,
nor to place a load upon any floor which exceeds the
floor load which the floor was designed to carry, nor
to connect any equipment or apparatus to any Building
system (e.g., electrical, plumbing, mechanical) which
exceeds the capacity of such system, nor to permit on
the Premises any auction sale or any nuisance or the
emission therefrom of any objectionable vibration,
noise, or odor, nor to permit the use of the Premises
for any purpose other than the Permitted Uses, nor any
use thereof which is improper, offensive, or contrary
to any laws, ordinances, codes, rules and regulations,
or the provisions of any license, permit or other
governmental consent or approval required for or
applicable now or at any time during the Term to the
Land, the Building or the Premises or Lessee's use
therefor (collectively, "Legal Requirements"), or
which is liable to invalidate or increase the premiums
for any insurance on the Building or its contents, or
liable to render necessary any alterations or
additions to the Building;
(d) not to obstruct in any manner any portion of the Building
not hereby leased, or the sidewalks or approaches to the
Building, or the Parking Area, or any hallways or Common
Areas, and to conform to all reasonable rules now or
hereafter made by Lessor for the care and use of the
Building, its facilities and approaches;
(e) to comply with all Legal Requirements and all
recommendations of Lessor's fire insurance rating
organization now or hereafter in effect which in either
case are applicable to Lessee's use of the
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Premises, to keep the Premises equipped with all safety
appliances, and to procure (and maintain in full force and
effect) all licenses, permits and other governmental
consents and approvals required by any Legal Requirement or
by the provisions of any applicable insurance policy
because of the use made of the Premises by Lessee (without
hereby intending to vary the provisions of Section 4.0
above), and, if requested by Lessor, to make all repairs,
alterations, replacements or additions so required in and
to the Premises;
(f) not, without on each occasion obtaining the prior written
consent of Lessor, which consent may be withheld by Lessor
in its sole discretion, to make any alterations,
renovations, improvements and/or additions to the Premises
(collectively, "Alterations") except those made pursuant to
the Work Letter attached hereto as EXHIBIT C, (except that
no such prior written consent of Lessor shall be required
for Alterations which (i) shall not exceed $5,000 in cost
in each instance, and (ii) do not affect the structural
integrity of the Building, and (iii) are not detrimental to
or incompatible with the Building systems, and (iv) do not
affect the exterior appearance of the Building, PROVIDED
that in each such case (x) Lessee shall still provide
advance notice to Lessor of the intended Alterations, and
(y) such Alterations shall be subject to all of the
provisions of this paragraph (f) other than the requirement
of Lessor's prior consent), or to permit the making of any
holes in any part of the Building or the painting or
placing of any signs, awnings, or the like, visible from
outside of the Premises. Prior to commencing any
Alterations, Lessee shall: secure all necessary licenses,
permits and other governmental consents and approvals;
obtain the written approval of Lessor as to the plans and
specifications for such work; obtain the written approval
of Lessor as to the general contractor (or as to each trade
contractor if there is no general contractor); cause each
contractor and subcontractor to carry workmen's
compensation insurance in statutory amounts covering all
of the contractor's and subcontractor's employees; and
cause each general contractor (or each trade contractor if
there is no general contractor) and subcontractor to carry
comprehensive public liability insurance in amounts
reasonably satisfactory to Lessor (such insurance to be
written by companies reasonably satisfactory to Lessor and
insuring Lessee and Lessor
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as well as the contractors and subcontractors). All
Alterations shall be of a quality equal to or better than
the "Initial Improvements" (as defined in the Work Letter
attached hereto). All Alterations (other than Lessee's
removable personal property and trade fixtures) and all of
the "Initial Improvements" (as defined in the Work Letter)
shall remain part of the Premises and shall not be removed
upon the expiration or earlier termination of the Term
EXCEPT for (i) Lessee's telephone and computer systems, and
(ii) those items which Lessor designates for removal in a
notice given to Lessee at the time that Lessee requests
Lessor's approval of such Alteration. Lessee shall pay
promptly when due the entire cost of such work. Lessee
shall not cause or permit any liens for labor or materials
performed or furnished in connection therewith to attach to
the Land or the Building, and shall discharge or bond any
such liens which may be filed or recorded against the
Premises within fifteen (15) days after the filing or
recording thereof. All such work shall be performed in a
good and workmanlike manner and in compliance with all
Legal Requirements and the provisions of all applicable
insurance policies. Promptly after the completion of any
Alterations, Lessee shall provide an as-built plan thereof
to Lessor. Lessee shall indemnify and hold Lessor harmless
from and against any and all suits, demands, causes of
action, claims, losses, debts, liabilities, damages,
penalties or judgments, including, without limitation,
reasonable attorneys' fees, arising from injury to any
person or property occasioned by or growing out of such
work, which indemnity shall survive the expiration or
termination of this Lease;
(g) to save Lessor harmless and indemnified from any loss,
cost and expense (including, without limitation,
reasonable attorneys' fees) arising out of or relating
to (i) a claim of injury to any person or damage to
any property while on the Premises, if not due to the
negligence or willful misconduct of Lessor or its officers,
agents, employees, servants or contractors, or the breach
of Lessor's obligations under this Lease; or to (ii) a
claim of injury to any person or damage to any property
anywhere alleged to be occasioned by any omission, neglect
or default of Lessee or of anyone claiming by, through, or
under Lessee, or any officer, agent, employee, servant,
contractor or invitee of any of the foregoing. Lessor
agrees to indemnify and hold harmless Lessee from and
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against all loss, cost and expense (including, without
limitation, reasonable attorneys' fees) arising out of or
relating to a claim for personal injury or property damage
resulting from the negligence or willful misconduct of
Lessor or its officers, agents, employees, servants or
contractors, or from the breach of Lessor's obligations or
representations under this Lease. The provisions of this
clause (g) shall survive the expiration or termination of
this Lease;
(h) to permit Lessor and Lessor's agents to examine the
Premises at reasonable times (provided 24 hours' notice is
given to Lessee, except in case of emergency), and if
Lessor shall so elect (without hereby imposing any
obligation on Lessor to do so), to permit Lessor to make
any repairs or additions Lessor may deem necessary; and at
Lessee's expense to remove any Alterations, signs, awnings,
aerials, flagpoles or the like not consented to in writing;
and to permit Lessor to show the Premises to prospective
purchasers and lessees (at reasonable times on reasonable
advance notice to Lessee) and to keep affixed to any
suitable part of the Premises, during the nine (9) months
preceding the expiration of the Term, appropriate notices
for letting or selling;
(i) that all furniture, furnishings, fixtures and property
of every kind of Lessee and of all persons claiming by,
through or under Lessee which may be on the Premises from
time to time (collectively, "Lessee's Property") shall be
at the sole risk of Lessee, and Lessor shall not be liable
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, or
by theft or from any other cause unless caused by the
negligence or willful misconduct of Lessor, or its
officers, agents, employees, servants or contractors;
(j) to pay promptly when due, all taxes of any kind levied,
imposed or assessed on Lessee's Property, which taxes shall
be the sole obligation of Lessee, whether the same is
assessed to Lessee or to any other person and whether the
property on which such tax is levied, imposed or assessed
shall be considered part of the Premises or personal
property;
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(k) by the end of business on the last day of the Term (or the
effective date of any earlier termination of this Lease as
herein provided), to remove (1) all of Lessee's Property
and (2) the items or components of Alterations designated
for removal as provided in paragraph (f) above and (3) the
items or components of the "Initial Improvements" (as
defined in the Work Letter) designated for removal as
provided in the Work Letter, in each case whether the same
be permanently affixed to the Premises or not, and to
repair any damage caused by any such removal to Lessor's
reasonable satisfaction; and to remove the contents of all
neutralization tanks installed by Lessee in the Premises;
and peaceably to yield up the Premises clean and in good
order, repair and condition (reasonable wear and tear, and
damage by fire or other casualty or taking which Lessee is
not otherwise required by the terms of this Lease to repair
or replace only excepted); and to deliver the keys to the
Premises to Lessor. Any of Lessee's Property or those
Alterations designated for removal as provided in paragraph
(f) above which are not removed by such date shall be
deemed abandoned and may be removed and disposed of by
Lessor in such manner as Lessor may determine, and Lessee
shall pay to Lessor on demand, as Additional Rent, the
entire cost of such removal and disposition, together with
the costs and expenses incurred by Lessor in making any
incidental repairs and replacements to the Premises
necessitated by Lessee's failure to remove Lessee's
Property or those Alterations designated for removal as
provided in paragraph (f) above, as required herein or by
any other failure of Lessee to comply with the terms of
this Lease, and for use and occupancy during the period
after the expiration of the Term and prior to Lessee's
performance of its obligations under this paragraph (k).
Lessee shall further indemnify and hold Lessor harmless
from and against any and all suits, demands, causes of
action, claims, losses, debts, liabilities, damages,
penalties or judgments, including, without limitation,
reasonable attorneys' fees, resulting from Lessee's failure
or delay in surrendering the Premises as above provided
(such indemnity to survive the expiration or termination
of this Lease), PROVIDED, HOWEVER, that Lessee shall be
liable for consequential damages resulting from Lessee's
failure or delay in surrendering the Premises as above
provided only if prior to the last day of the Term (or the
effective date of the termination of this Lease as herein
provided, if sooner terminated) Lessor
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notifies Lessee in writing of Lessor's intention to hold
Lessee liable therefor because the Premises (or a portion
thereof) are required for occupancy by another party;
(l) to pay Lessor's reasonable expenses, including reasonable
attorneys' fees, incurred in enforcing any obligations of
Lessee under this Lease;
(m) not to generate, store or use any "Hazardous Materials"
(as hereinafter defined) in or on the Premises or elsewhere
in the Building or on the Land except those identified in
writing to Lessor from time to time, and then only in
compliance with any and all applicable Legal Requirements,
or dispose of Hazardous Materials from the Premises to any
other location except a properly approved disposal facility
and then only in compliance with any and all Legal
Requirements regulating such activity, nor permit any
occupant of the Premises to do so. As used in this Lease,
"Hazardous Materials" means and includes any chemical,
substance, waste, material, gas or emission which is
radioactive or deemed hazardous, toxic, a pollutant,
or a contaminant under any statute, ordinance, by-law,
rule, regulation, executive order or other administrative
order, judgment, decree, injunction or other judicial order
of or by any governmental authority, now or hereafter in
effect, relating to pollution or protection of human health
or the environment. By way of illustration and not
limitation, "Hazardous Materials" includes "oil,"
"hazardous materials," "hazardous waste," and "hazardous
substance" as defined in the Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S.C. Section
9601 ET SEQ., as amended, the Resource Conservation and
Recovery Act of 1976, 42 U.S.C. Section 6902 ET SEQ., as
amended, and the Toxic Substances Control Act, 15 U.S.C.
Section 8601 ET SEQ., as amended, the regulations
promulgated thereunder, and Massachusetts General Laws,
Chapter 21C and Chapter 21E and the regulations promulgated
thereunder. If, at any time during the Term, either (i)
any lender requires testing to determine whether there has
been any release of Hazardous Materials by Lessee or
someone claiming by, through or under Lessee, based on the
particular use being made of the Premises by such person
or entity, or (ii) any governmental authority requires
such testing by reason of the use of the Premises made by
Lessee or anyone claiming by, through or under Lessee,
then in any such
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case Lessee shall reimburse Lessor upon demand, as
Additional Rent, for the reasonable costs thereof. Lessee
shall execute affidavits, certifications and the like, as
may be reasonably requested by Lessor from time to time
concerning Lessee's best knowledge and belief concerning
the presence of Hazardous Materials in or on the Premises,
the Building or the Land resulting from the use made of the
Premises by Lessee or anyone claiming by, through or under
Lessee. Lessor reserves the right to enter the Premises at
reasonable times (provided twenty-four (24) hours' notice
is given to Lessee, except in case of emergency) to inspect
the same for Hazardous Materials. Lessee's obligations
under this paragraph (m) shall include, if at any time
during the Term Lessee or anyone claiming by, through or
under Lessee uses or stores radioactive materials on the
Premises, compliance with all so-called "close-out"
procedures of the Nuclear Regulatory Commission or other
federal, state or local governmental authorities having
jurisdiction over radioactive materials, regardless of
whether or not such procedures are completed prior to the
expiration or earlier termination of the Term. Lessee shall
indemnify, defend, and hold harmless Lessor, and the holder
of any mortgage on the Building or the Land, from and
against any claim, cost, expense, liability, obligation or
damage, including, without limitation, attorneys' fees and
the cost of litigation, arising from or relating to the
breach by Lessee or anyone claiming by, through or under
Lessee of the provisions of this clause (m), and shall
immediately discharge or cause to be discharged any lien
imposed upon the Building or the Land in connection with
any such claim. The provisions of this clause (m) shall
survive the expiration or termination of this Lease;
(n) in case Lessee takes possession of the Premises prior to
the Commencement Date, to perform and observe all of
Lessee's covenants from and after the date upon which
Lessee takes possession except that no Rent shall accrue
prior to the beginning of the Term;
(o) to comply with all rules and regulations adopted and
amended from time to time by Lessor for the operation
of the Land and the Building;
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(p) not to permit any officer, agent, employee, servant,
contractor or visitor of Lessee, or of anyone claiming by,
through or under Lessee, to violate any covenant or
obligation of Lessee hereunder; and
(q) to provide and pay for the services outlined in EXHIBIT E
attached hereto.
12.0 CONSTRUCTION. Lessor shall construct the Initial Improvements in
accordance with the provisions of the Work Letter attached hereto
as EXHIBIT C.
13.0 CASUALTY AND EMINENT DOMAIN.
13.1 SUBSTANTIAL TAKING. In the event that the entire Building,
or more than fifty percent (50%) percent of the rentable
area of the Premises, shall be taken by any exercise of the
right of eminent domain or other lawful power in pursuance
of any public or other authority during the Term, then this
Lease shall terminate as of the time that possession is
taken by the taking authority.
13.2 PARTIAL TAKING. In the event that a taking occurs and this
Lease is not terminated as provided in Section 13.1 above,
then from and after the date possession is taken by the
taking authority Rent shall be abated by an amount
representing that part of the Rent properly allocable to
the portion of the Premises so taken, but this Lease shall
otherwise continue in full force and effect.
13.3 AWARDS. Lessor reserves and excepts all rights to damage to
the Premises, the Building, the Land and the leasehold
hereby created, now accrued or hereafter accruing by reason
of any exercise of eminent domain, or by reason of anything
lawfully done in pursuance of any public or other authority
and by way of confirmation, Lessee grants to Lessor all of
Lessee's rights to such damages and covenants to execute
and deliver such further instruments of assignment thereof
as Lessor may from time to time request. Lessee shall be
entitled to such award, if any, as is specifically
allocated by the taking authority to Lessee on account of
Lessee's Property so taken or relocation expenses incurred
by Lessee as a result of such taking.
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13.4 SUBSTANTIAL CASUALTY. If the Premises are damaged by fire
or other casualty, Lessee shall promptly notify Lessor
thereof. If the Building or any part thereof shall be
damaged by fire or other casualty to the extent that
substantial alteration or reconstruction of the Building
shall, in Lessor's sole opinion, be required (whether or
not the Premises shall have been damaged), or if such
casualty renders more than fifty (50%) percent of the
rentable area of the Premises unusable by Lessee for the
operation of its business in the Premises, or if as a
result of such casualty any mortgagee of the Building
requires that insurance proceeds payable in connection with
such casualty be used to retire the mortgage debt, Lessor
may, at its option, terminate this Lease by notifying
Lessee in writing of such termination within sixty (60)
days after the date of such damage, in which event this
Lease shall terminate on the date set forth in such notice.
If such casualty renders more than fifty (50%) percent of
the rentable area of the Premises unusable by Lessee for
the operation of its business in the Premises, in the
reasonable determination of Lessee, then Lessee may
terminate this Lease as of the date of the occurrence of
such damage by written notice thereof to Lessor within
sixty (60) days after the date of such damage. In the event
that this Lease is terminated pursuant to this Section 13.4
Rent shall be abated, to the extent the Premises are
unusable for the Permitted Uses, from and after the date of
such damage to the date of such termination of this Lease,
and no further Rent shall accrue or be payable after the
date of such termination.
13.5 REPAIR AND RESTORATION. In the event of a taking which does
not result in the termination of this Lease pursuant to
Section 13.1 above, or a casualty which does not result in
the termination of this Lease pursuant to Section 13.4
above, the Premises shall be repaired and restored in the
manner provided in this Section. Lessor shall diligently
act to restore the Building and the Premises (exclusive of
Lessee's Property) or, in case of taking, what remains
thereof, to substantially the condition in which they
existed prior to the occurrence of such taking or casualty,
provided, however, that: (i) in no event shall Lessor be
required to spend in connection with restoring the Premises
more than the amount of insurance proceeds or taking award
actually received and allocable thereto (except that this
limitation with respect to insurance proceeds shall not
apply to casualties occurring
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during such time as Lessor self-insures pursuant to Section
7.4 above); (ii) Lessor shall not be required to restore or
replace any of Lessee's Property; and (iii) promptly upon
substantial completion of such work by Lessor, Lessee shall
diligently act to repair and/or restore all of Lessee's
Property to substantially the same condition it was in
prior to the occurrence of such taking or casualty. Lessor
shall not be liable for any inconvenience or annoyance to
Lessee or injury to the business of Lessee resulting in any
way from such taking or damage or the repair thereof. Rent
shall be abated from and after the date of such taking or
damage to the date on which Lessor substantially completes
the restoration described above, to the extent the Premises
are unusable for the Permitted Uses. Notwithstanding the
foregoing provisions of this Section 13.5, in the event
that within six months after the date of such taking or
damage (other than damage resulting from a casualty which
Lessor establishes was caused by Lessee, or anyone claiming
by, through or under Lessee, or the officers, agents,
servants, contractors or employees thereof), Lessor has not
substantially completed the restoration work which it is
required by this Section to perform, then Lessee shall have
the right to terminate this Lease by giving thirty (30)
days' written notice to Lessor within thirty (30) days
after the end of such 6-month period.
14.0 DEFAULTS: EVENTS OF DEFAULT; REMEDIES.
14.1 DEFAULTS; EVENTS OF DEFAULT. The following shall, if any
requirement for notice or lapse of time or both has not
been met, constitute defaults hereunder, and, if such
requirements have been met, constitute "Events of Default"
hereunder:
(a) The failure of Lessee to perform or observe any
of Lessee's covenants or agreements hereunder
concerning the payment of money for a period of ten
(10) days after written notice thereof, PROVIDED,
HOWEVER, that Lessee shall not be entitled to such
notice if Lessor has given notice to Lessee of two or
more previous such failures within a twelve-month
period, in which event such failure shall constitute
an Event of Default hereunder upon the expiration of
ten (10) days after such payment was due;
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(b) The failure of Lessee to maintain the insurance
required hereunder in full force and effect;
(c) The execution by Lessee of any assignment or sublease
without the prior written consent of Lessor;
(d) The failure of Lessee to perform or observe any
of Lessee's other covenants or agreements hereunder
for a period of thirty (30) days after written notice
thereof (provided that, in the case of defaults not
reasonably curable in thirty (30) days through the
exercise of reasonable diligence, such 30-day period
shall be extended for so long as Lessee commences cure
within such period and thereafter prosecutes such cure
to completion continuously and with reasonable
diligence, but such extended cure period shall
not in any event exceed ninety (90) days after
Lessor's initial notice to Lessee); or
(e) If the leasehold hereby created shall be taken on
execution, or by other process of law; or if any
assignment shall be made of Lessee's property for
the benefit of creditors; or if a receiver,
guardian, conservator, trustee in bankruptcy or
similar officer shall be appointed to take charge
of all or any part of Lessee's assets by a court
of competent jurisdiction; or if a petition is
filed by Lessee under any bankruptcy or
insolvency law; or if a petition is filed against
Lessee under any bankruptcy or insolvency law and
the same shall not be dismissed within sixty (60)
days from the date upon which it is filed; or a
lien or other involuntary encumbrance is filed
against Lessee's leasehold (or against the
Premises, the Building or the Land based on a
claim against Lessee) and is not discharged or
bonded within thirty (30) days after the filing
thereof.
14.2 TERMINATION. If an Event of Default shall occur, Lessor
may, at its option, immediately or any time thereafter and
without demand or notice, enter upon the Premises or any
part thereof in the name of the whole and repossess the
same as of Lessor's former estate and dispossess Lessee and
those claiming through or under Lessee and remove their
effects, forcibly if necessary, without being deemed guilty
of any manner of trespass and without prejudice to any
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remedies which might otherwise be used for arrears of rent
or preceding breach of covenant, and upon such entry this
Lease shall terminate. In lieu of making such entry, Lessor
may terminate this Lease upon three (3) business days'
prior written notice to Lessee. Upon any termination of
this Lease as the result of an Event of Default, Lessee
shall quit and peacefully surrender the Premises to Lessor.
14.3 SURVIVAL OF COVENANTS. No such termination of this Lease
shall relieve Lessee of its liability and obligations under
this Lease and such liability and obligations shall survive
any such termination.
14.4 DAMAGES. In the event of any such termination Lessee shall
pay to Lessor the Rent up to the time of such termination.
Lessee shall remain liable for, and shall pay on the days
originally fixed for such payment hereunder, the full
amount of all Basic Rent and Additional Rent as if this
Lease had not been terminated; PROVIDED, HOWEVER, if Lessor
relets the Premises, there shall be credited against such
obligation the amount actually received by Lessor each
month from such lessee after first deducting all costs and
expenses incurred by Lessor in connection with reletting
the Premises.
In lieu of any other damages hereunder, Lessee agrees to
pay to Lessor, on demand, as and for liquidated and agreed
damages for Lessee's default, the amount by which:
(a) the aggregate Rent which would have been payable under
this Lease by Lessee from the date of such termination
until what would have been the last day of the Term
but for such termination, EXCEEDS
(b) the greater of (i) the fair and reasonable rental
value of the Premises for the same period, less
Lessor's reasonable estimate of expenses to be
incurred in connection with reletting the
Premises, including, without limitation, all
repossession costs, brokerage commissions, legal
expenses, reasonable attorneys' fees, alteration
costs, and expenses of preparation for such
reletting, or (ii) the sum of (A) the amount
actually received by Lessor from reletting the
Premises (if any), and (B) the amount actually
received by Lessor from Lessee pursuant to the
preceding paragraph of this Section (if any).
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If the Premises or any part thereof are relet by Lessor for
the period prior to what would have been the last day of
the Term but for such termination, or any portion thereof,
the amount of rent reserved upon such reletting shall be,
PRIMA FACIE, the fair and reasonable rental value for the
part or the whole of the Premises so relet during the term
of the reletting.
In lieu of any other damages hereunder, Lessor may by
written notice to Lessee, at any time after this Lease is
so terminated, elect to recover, and Lessee shall pay as
full and final liquidated damages, an amount equal to (i)
the Basic Rent and Additional Rent accrued under Section
5.0 hereof in the twelve (12) months ending on the
effective date of such termination, PLUS (ii) all Basic
Rent and Additional Rent which was unpaid as of the
effective date of such termination, LESS (iii) the amount
received by Lessor pursuant to the foregoing provisions of
this Section 14.4 prior to the time of payment by Lessee of
such liquidated damages.
Nothing herein contained shall limit or prejudice the right
of Lessor to prove and obtain as liquidated damages by
reason of such termination, 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, such damages
are to be proved, whether or not such amount be greater,
equal to, or less than the amount of the difference
referred to above.
14.5 RIGHT TO RELET. At any time or from time to time after any
such termination, Lessor may relet the Premises or any part
thereof for such a term (which may be greater or less than
the period which would otherwise have constituted the
balance of the Term) and on such conditions (which may
include concessions or free rent) as Lessor, in its
reasonable discretion, may determine, and may collect and
receive the rents therefor. Lessor shall in no way be
responsible or liable for any failure to relet the Premises
or any part thereof, or for any failure to collect any rent
due upon any such reletting.
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14.6 RIGHT TO EQUITABLE RELIEF. In the event there shall occur a
default or threatened default hereunder, Lessor shall be
entitled to enjoin such default or threatened default and
shall have the right to invoke any right and remedy allowed
at law or in equity or by statute or otherwise as though
re-entry and other remedies were not provided for in this
Lease.
14.7 RIGHT TO SELF HELP. In the event of a default by Lessee
hereunder which continues beyond the expiration of the
applicable grace period, Lessor shall have the right to
perform such defaulted obligation of Lessee, including the
right to enter upon the Premises to do so. Lessor shall, as
a courtesy only, notify Lessee of its intention to perform
such obligation. In the event of a default by Lessee
hereunder which has not yet continued beyond the expiration
of the applicable grace period but which Lessor determines
constitutes an emergency threatening imminent injury to
persons or damage to property, Lessor shall have the right
to perform such defaulted obligation of Lessee (including
the right to enter upon the Premises to do so) after giving
Lessee such notice (if any) as is reasonable under the
circumstances. In either event, the aggregate of (i) all
sums so paid by Lessor, (ii) interest (at the rate of
1-1/2% per month or the highest rate permitted by law,
whichever is less) on such sum, and (iii) all necessary
incidental costs and expenses in connection with the
performance of any such act by Lessor, shall be deemed to
be Additional Rent under this Lease and shall be payable to
Lessor immediately upon demand. Lessor may exercise its
rights under this Section 14.7 without waiving any other of
its rights or releasing Lessee from any of its obligations
under this Lease.
14.8 FURTHER REMEDIES. Nothing in this Lease contained shall
require Lessor to elect any remedy for a default or Event
of Default by Lessee hereunder, and all rights herein
provided shall be cumulative with one another and with any
other rights and remedies which Lessor may have at law or
in equity in the case of such a default or Event of
Default.
15.0 REAL ESTATE BROKER. Lessor and Lessee each represent to the
other that they have dealt with no broker in connection with
this Lease other than Fallon, Xxxxx & X'Xxxxxx, Inc. and
Xxxxxxxx & Grew, Inc. (collectively, "Brokers"). Lessor
shall pay the Brokers as part of a separate agreement.
Lessee agrees to indemnify and hold Lessor harmless from and
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against any claims for commissions or fees by any person other
than the Brokers by reason of any act of Lessee or its
representatives. Lessor agrees to indemnify and hold Lessee
harmless from and against any claims for commissions or fees by
any person other than the Brokers by reason of any act of Lessor
or its representatives.
16.0 NOTICES. Whenever by the terms of this Lease notice, demand, or
other communication shall or may be given either to Lessor or to
Lessee, the same shall be in writing and shall be sent by hand
delivery, or by registered or certified mail, postage prepaid, or
by Federal Express or other similar overnight delivery service,
to:
Lessor: Massachusetts Institute of Technology
000 Xxxx Xxxxxx - Xxxxx 000
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx,
Director of Real Estate
with a copy to: Xxxxx Xxxxxxxxxxx, Esquire
Rackemann, Xxxxxx & Xxxxxxxx
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Lessee: Prior to the Commencement Date:
-------------------------------
Free Radical Sciences, Inc.
000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: B. Xxxxxxxx Xxxxxx
Chief Financial Officer
From and After the Commencement Date:
-------------------------------------
Free Radical Sciences, Inc.
000 Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: B. Xxxxxxxx Xxxxxx
Chief Financial Officer
with a copy to: Xxxx X. Xxxxxx, Esquire
Xxxx and Xxxx
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Any notice, demand or other communication shall be effective upon
receipt by or tender for delivery to the intended recipient
thereof.
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17.0 NO WAIVERS. Failure of Lessor to complain of any act or omission
on the part of Lessee, no matter how long the same may continue,
shall not be deemed to be a waiver by Lessor of any of its rights
hereunder. No waiver by Lessor at any time, expressed or implied,
of any breach of any provision of this Lease shall be deemed a
waiver of a breach of any other provision of this Lease or a
consent to any subsequent breach of the same or any other
provision. No acceptance by Lessor of any partial payment shall
constitute an accord or satisfaction but shall only be deemed a
partial payment on account; nor shall any endorsement or
statement on any check or any letter accompanying any check or
payment be deemed an accord and satisfaction, and Lessor may
accept such check or payment without prejudice to Lessor's right
to recover the balance of such installment or pursue any other
remedy available to Lessor in this Lease or at law or in equity.
18.0 SERVICES PROVIDED BY LESSOR. Lessor shall furnish the services
described on EXHIBIT D attached, the cost of which shall be
included in Operating Expenses. Lessor shall not be held liable
to anyone for cessation of any service rendered customarily to
the Premises or Building or agreed to by the terms of this Lease,
due to any accident, to the making of repairs, alterations or
improvements, or to the occurrence of an event of "Force Majeure"
(as defined in Section 22 below).
19.0 GROUND LEASES; MORTGAGES.
19.1 RIGHTS OF GROUND LESSORS AND MORTGAGEES. No act or failure
to act on the part of Lessor which would entitle Lessee
under the terms of this Lease, or by law, to be relieved of
Lessee's obligations hereunder or to terminate this Lease,
shall result in a release or termination of such
obligations or a termination of this Lease unless (i)
Lessee shall have first given written notice to Lessor's
ground lessors and mortgagees of record of the act or
failure to act on the part of Lessor which Lessee claims as
the basis of Lessee's rights; and (ii) such ground lessors
and mortgagees, after receipt of such notice, have failed
or refused to correct or cure the condition within a
reasonable time thereafter, but nothing in this Lease shall
be deemed to impose any obligation on any such ground
lessor or mortgagee to correct or cure any such condition.
No ground lessor shall be liable for the failure to perform
any of the obligations of Lessor hereunder unless and until
such ground lessor terminates its ground lease and takes
possession of the Premises, nor shall any mortgagee be
liable for
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the failure to perform any of the obligations of Lessor
hereunder unless and until such mortgagee enters upon and
takes possession of the Premises for purposes of
foreclosure.
19.2 LEASE SUBORDINATE. This Lease is and shall be subject and
subordinate to any ground lease or mortgage now or
hereafter on the Premises, and to all advances under any
such mortgage and to all renewals, amendments, extensions
and consolidations thereof, provided that the holder of
such ground lessor's interest or mortgagee's interest
enters into a non-disturbance and attornment agreement with
Lessee which provides that in the event that such ground
lessor or mortgagee succeeds to Lessor's interest
hereunder, then, provided that Lessee is not in default
hereunder beyond the cure period provided in this Lease,
such party shall recognize and be bound by the terms of
this Lease. In the event that any ground lessor or the
holder of any mortgage succeeds to Lessor's interest in the
Premises or any portion thereof, Lessee hereby agrees to
attorn to such ground lessor or mortgagee. In confirmation
of such subordination, Lessee shall execute and deliver
promptly any certificate in recordable form that Lessor or
any ground lessor or any mortgagee may reasonably request.
Notwithstanding the foregoing provisions of this Section,
the holder of any mortgage on the Premises may at any time
subordinate its mortgage to this Lease by written notice to
Lessee.
Lessor hereby represents to Lessee that as of the date of
this Lease, there are no mortgages or ground leases
encumbering the Premises or any portion thereof.
20.0 NOTICE OF LEASE; ESTOPPEL CERTIFICATES. Lessor and Lessee agree
that this Lease shall not be recorded. However, simultaneously
with their execution and delivery of this Lease, Lessor and
Lessee shall execute and acknowledge a Notice of Lease in
mutually acceptable and recordable form.
From time to time during the Lease Term, and without charge,
either party shall, within fifteen (15) business days of request
by the other, certify by written instrument duly executed and
acknowledged, to the requesting party or to any person reasonably
specified by the requesting party, regarding (a) the existence of
any amendments or supplements to this Lease; (b) the validity and
force and effect of this Lease; (c) the existence of any known
default or Event of Default; (d) the existence of any offsets,
counterclaims or
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defenses; (e) the Commencement Date and the expiration date of
the Lease Term; (f) the amount of Rent due and payable and the
date to which Rent has been paid; and (g) such other matters as
may be reasonably requested.
21.0 HOLDING OVER. If Lessee occupies the Premises after the day on
which the Lease Term expires (or the effective date of any
earlier termination as herein provided) without having entered
into a new lease thereof with Lessor, Lessee shall be a
tenant-at-sufferance only, subject to all of the terms and
provisions of this Lease at (i) one and one-half (1-1/2) times
the Basic Rent as in effect on the last day of the Term for the
first two (2) months (or portion thereof) of such holding over,
and (ii) twice the Basic Rent as in effect on the last day of the
Term for the balance of such holding over. Such a holding over,
even if with the consent of Lessor, shall not constitute an
extension or renewal of this Lease. If applicable, for purposes
of this Section, the failure of Lessee to complete by the last
day of the Lease Term or the effective date of any earlier
termination as herein provided the "closeout" procedures required
by the Nuclear Regulatory Commission or any other federal, state
or local governmental agency having jurisdiction over the use of
radioactive materials within the Premises shall constitute a
holding over and subject Lessee to the provisions of this
Section.
22.0 FORCE MAJEURE. Neither Lessor nor Lessee shall be deemed to be in
default hereunder (and the time for performance of any of their
respective obligations hereunder other than the payment of money
shall be postponed) for so long as the performance of such
obligation is prevented by strike, lockout, act of God, absence
of materials or any other matter not reasonably within the
control of the party which must perform the obligation
(collectively, "Force Majeure").
23.0 ENTIRE AGREEMENT. No oral statement or prior written matter
shall have any force or effect. This Agreement shall not be
modified or canceled except by writing subscribed to by all
parties.
24.0 SECURITY DEPOSIT. Lessee has deposited with Lessor
contemporaneously with its delivery to Lessor of executed
counterparts of this Lease $54,000.00 (the "Security Deposit") as
security for the full and faithful payment and performance by
Lessee of its obligations under this Lease from and after the
date of execution hereof by Lessee, and not as a prepayment of
Rent. Lessor may commingle the Security Deposit in one or more
bank accounts with other funds of Lessor, and the Security
Deposit shall earn
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interest at the rate actually paid to Lessor from time to time on
such account (which interest shall be included in the term
"Security Deposit" for the purposes of this Lease). Lessor may
use the Security Deposit to cure any Event of Default by Lessee
(whether occurring prior to the Commencement Date hereunder or
thereafter), and Lessee shall immediately pay to Lessor on
demand, as Additional Rent, the amount so expended and such
additional amount as is required to cause the Security Deposit at
all times to equal the amount set forth above. Lessor shall
assign the Security Deposit to any successor owner of the
Building and provided that such successor owner agrees to be
bound by the terms of this Section 24.0, thereafter Lessor shall
have no further responsibility therefor. Upon the expiration (or
earlier termination) of the Lease Term, Lessor shall inspect the
Premises, make such deductions from the Security Deposit as may
be required to cure any Event of Default by Lessee hereunder,
and, if Lessee is not then in default hereunder, pay the balance
of the Security Deposit, if any, to Lessee within thirty (30)
days of such expiration or termination. If Lessee is in default
hereunder at the time of such expiration or termination, then
Lessor shall be entitled to retain so much of the Security
Deposit as Lessor reasonably estimates to be Lessee's liability
to Lessor hereunder and shall pay the balance, if any, to Lessee
within such 30-day period.
Notwithstanding the foregoing provisions of this Section 24.0, if
no Event of Default has occurred hereunder during the first two
(2) Lease Years, then Lessor shall retain $25,000.00 as the
Security Deposit, and Lessor shall release to Lessee promptly
after the second anniversary of the Commencement Date the excess
portion of the Security Deposit then held by Lessor.
25.0 WARRANTS. As additional consideration, Lessee is issuing to
Lessor, contemporaneously with the execution and delivery
of this Lease, its warrants to purchase 25,000 shares of
Lessee's common stock in the form attached hereto as
EXHIBIT X. Xxxxxx'x rights in such warrants shall not be
affected by any termination of this Lease.
26.0 SUCCESSORS AND ASSIGNS. The terms, covenants and conditions of
this Lease shall run with the Land, and be binding upon and inure
to the benefit of Lessor and Lessee and their respective
successors and permitted assigns.
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27.0 APPLICABLE LAW, SEVERABILITY AND CONSTRUCTION. This Lease shall
be governed by and construed in accordance with the laws of
Massachusetts and, if any provisions of this Lease shall to any
extent be invalid, the remainder of this Lease, and the
application of such provisions in other circumstances, shall not
be affected thereby. The titles of the several Sections contained
herein are for convenience only and shall not be considered in
construing this Lease. Whenever the singular is used and when
required by the context it shall include the plural, and the
neuter gender shall include the masculine and feminine. The
Exhibits attached to this Lease are incorporated into this Lease
by reference. This Lease may be executed in several counterparts,
each of which shall be an original, but all of which shall
constitute one and the same instrument. The term "Lessor"
whenever used herein, shall mean only the owner at the time of
Lessor's interest herein, and no covenant or agreement of Lessor,
express or implied, shall be binding upon any person except for
defaults occurring during such person's period of ownership nor
binding individually upon any fiduciary, any shareholder, officer
or director, or any beneficiary under any trust, and the
liability of Lessor, in any event, shall be limited to Lessor's
interest in the Building. If Lessee is several persons or a
partnership, Lessee's obligations are joint or partnership and
also several. No officer, director Or shareholder of Lessee shall
have any personal liability hereunder. Unless repugnant to the
context, "Lessor" and "Lessee" mean the person or persons,
natural or corporate, named above as Lessor and as Lessee
respectively, and their respective heirs, executors,
administrators, successors and assigns.
28.0 QUIET ENJOYMENT. Lessor covenants that, provided that an Event of
Default has not occurred and is not then continuing, Lessee shall
quietly have and enjoy the Premises during the Term, without
hindrance or molestation from any person lawfully claiming by,
through or under Lessor.
29.0 AUTHORITY. Contemporaneously with the signing of this Lease,
Lessee shall furnish to Lessor a certified copy of the resolution
of the Board of Directors of Lessee authorizing Lessee to enter
into this Lease, and Lessor shall furnish appropriate evidence of
the authority of Lessor to enter into this Lease.
-39-
43
WITNESS the execution hereof under seal the day and year first
above written.
LESSOR: MASSACHUSETTS INSTITUTE OF
TECHNOLOGY
Date: October 28, 1994 By: /s/ Xxxxx X. Xxxxxxx
----------------- -----------------------------
Xxxxx X. Xxxxxxx
Deputy Treasurer and Director
of Investments
Hereunto duly authorized
LESSEE: FREE RADICAL SCIENCES, INC.
Date: October 28, 1994 By: /s/ B. Xxxxxxxx Xxxxxx
----------------- -----------------------------
B. Xxxxxxxx Xxxxxx
Chief Financial Officer
Hereunto duly authorized
-40-
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EXHIBIT A
---------
PREMISES
--------
See attached plan.
[Exhibit consists of architect's drawing of the third floor of
building located at 000 Xxxxxxxx Xxxxx, Xxxxxxxxx, XX, with
cross-hatching describing premises leased to tenant.]
-41-
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EXHIBIT B
---------
SITE PLAN
---------
See attached plan.
[Exhibit consists of plat map of real property owned by
Massachusetts Institute of Technology certified by civil
engineer.]
-42-
46
EXHIBIT C
---------
WORK LETTER
-----------
This Work Letter is incorporated by reference into the Lease
dated October 28, 1994 by and between Massachusetts Institute of
Technology, as Lessor, and Free Radical Sciences, Inc., as Lessee.
Terms defined in or by reference in the Lease not otherwise defined
herein shall have the same meaning herein as therein.
1. ADDITIONAL DEFINITIONS. Each of the following terms shall
have the meaning stated immediately after it:
APPROVED WORKING DRAWINGS. The working drawings and
specifications for the Initial Improvements, prepared by
the Project Architect, which have been approved by Lessor
and Lessee, copies of which (or a list of which) are
attached to this Work Letter as Schedule 1.
APPROVED BUDGET. The budget for the design and construction
of the Initial Improvements as shown on the Working
Drawings, which has been approved by Lessee and Lessor, a
copy of which is attached to this Work Letter as Schedule
2.
COMMENCEMENT DATE. The earlier of (i) the date on which
Lessor has "substantially completed" (as defined below) the
Initial Improvements and received a certificate of
occupancy for the Premises, subject to adjustment as
provided in Paragraph 6 below, or (ii) the date on which
Lessee first occupies the Premises (or any portion thereof)
for the conduct of its business.
CONSTRUCTION AUTHORIZATIONS. Collectively, all
permits, licenses and other consents and approvals
required from any governmental authority for the
construction of the Initial Improvements.
GENERAL CONTRACTOR. A general contractor engaged by
Lessor to construct the Initial Improvements.
INITIAL IMPROVEMENTS. All improvements, alterations and
additions which Lessee wishes to make to the Premises as
part of the initial preparation thereof for Lessee's
occupancy, as shown on the Approved Working Drawings (as
the same may be changed as hereinafter provided).
-43-
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LESSEE'S COST. The amount, if any, by which the cost
to design and construct the Initial Improvements exceeds
the amount of Lessor's Contribution.
LESSEE'S DELAYS. Any and all delays suffered by Lessor, the
Project Architect, or the General Contractor in the course
of the design or construction of the Initial Improvements
due to any act or failure to act of Lessee or Lessee's
consultants, contractors, suppliers, servants, licensees,
or agents, including, without limitation, (i) any delay by
Lessee in providing to the Project Architect or the General
Contractor within a reasonable time after request therefor
any information reasonably requested by the Project
Architect or the General Contractor, (ii) Lessee's failure
to make a payment to Lessor within the time provided in
Paragraph 5 below, or (iii) any delay caused by Lessee's
requests for changes to the Approved Working Drawings
(notwithstanding Lessor's approval of such request).
LESSOR'S CONTRIBUTION. The amount to be paid by Lessor
towards the cost of designing and constructing the Initial
Improvement, which amount shall not exceed $25.00 per
rentable square foot of the Premises.
LESSOR'S DELAYS. Any and all delays caused by Lessor, the
Project Architect, the General Contractor or any
subcontractor or supplier thereof in the course of the
design or construction of the Initial Improvements, but
expressly excluding (i) all Lessee's Delays, and (ii) all
delays resulting from the occurrence of a Force Majeure.
PROTECT ARCHITECT. Xxxx/Xxxxx & Associates, or another
architectural firm engaged by Lessor to design the Initial
Improvements.
SUBSTANTIALLY COMPLETED. With reference to the Premises,
the completion of construction of the Initial Improvements
except for items of work or adjustment of equipment or
fixtures which are not necessary to make the Premises
reasonably tenantable for the Permitted Uses and which,
because of season or weather or the nature of the item,
cannot practicably be done at the time.
2. PREPARATION OF THE PREMISES. Lessor shall design and
construct the Initial Improvements in accordance with the
provisions of this Work Letter. If the cost to Lessor of
-44-
48
designing and constructing the Initial Improvements exceeds the
amount of Lessor's Contribution, Lessee shall pay Lessee's Cost
to Lessor in accordance with Paragraph 5 hereof.
Lessor anticipates that the Commencement Date will occur on or
about December 15, 1994 (subject to Lessee's Delays and Force
Majeure). This is Lessor's good faith estimate of the anticipated
Commencement Date, and shall not be construed as a guaranty,
representation or warranty that the Commencement Date will occur
within such time.
3. INITIAL IMPROVEMENTS. Lessor shall be responsible for obtaining
all Construction Authorizations required for the Initial
Improvements and, upon completion of the Initial Improvements,
for obtaining a certificate of occupancy for the Premises from
the appropriate governmental authority. Lessor shall deliver to
Lessee a copy of said certificate of occupancy promptly after
receiving the same. Lessor shall cause the General Contractor to
commence construction of the Initial Improvements and shall use
reasonable efforts to cause the General Contractor diligently to
proceed to completion thereof.
4. CHANGES. It is understood that Lessee at its own expense may
request changes in the work after approval by Lessee and Lessor
of the Approved Working Drawings. All such changes shall require
the prior written approval of Lessor, which approval shall not be
unreasonably withheld or delayed. Such changes shall be priced at
the sum of (i) the cost of making such changes and (ii) the cost
of the work shown thereon (including the general contractor's
overhead, profit and general conditions). No changes shall be
made until Lessee's Representative has signed a written
authorization therefor.
If the cost of the Initial Improvements as modified by such
changes exceeds the amount of Lessor's Contribution, Lessee shall
be solely responsible for the payment of such excess in the
manner provided in Paragraph 5 below.
5. PAYMENT OF THE COSTS OF THE INITIAL IMPROVEMENTS. Lessor shall
make all payments to the Project Architect and the General
Contractor up to an aggregate amount equal to the Lessor's
Contribution. From and after such time (if any) as the cost of
designing and constructing the Initial Improvements exceeds the
amount of Lessor's Contribution, for any reason whatsoever,
Lessee shall be solely responsible for paying the balance of the
costs of designing and constructing the Initial Improvements and
shall make
-45-
49
such payment to Lessor within ten (10) days of receipt of an
invoice therefor from Lessor. Notwithstanding anything to the
contrary set forth in the Lease or this Work Letter, in the event
that Lessee fails to make a payment to Lessor within such 10-day
period, Lessor shall be entitled to cease work in the Premises
until Lessor receives all sums due from Lessee on account of the
Initial Improvements. Lessee shall indemnify and hold Lessor
harmless from and against any and all claims, loss, costs,
expenses, debts, damages or liabilities, including, without
limitation, reasonable attorney's fees, incurred by Lessor as a
consequence of Lessee's failure to make a payment to Lessor
within such 10- day period.
Notwithstanding the preceding provisions of this Paragraph 5, in
the event that Lessor determines prior to the commencement of
construction of the Initial Improvements that the cost of
designing and constructing the Initial Improvements will exceed
the amount of Lessor's Contribution, Lessor shall notify Lessee
of the projected amount of such excess and Lessor shall not be
required to commence construction of the Initial Improvements
unless and until Lessee pays to Lessor the full amount of such
projected excess. Notwithstanding such payment by Lessee to
Lessor, Lessee shall remain solely responsible for any further
amount by which the actual cost of designing and constructing the
Initial Improvements exceeds the aggregate of Lessor's
Contribution and sums previously paid by Lessee to Lessor.
6. DELAYS. In the event of the occurrence of a Lessee's Delay, the
Commencement Date shall be advanced one day for each day such
Lessee's Delay continues. In the event of the occurrence of a
Lessor's Delay, the Commencement Date shall not occur until the
conditions set forth in the definition of "Commencement Date" set
forth in Paragraph 1 of this Work Letter are satisfied and,
except as provided in the next subparagraph of this Paragraph 6,
this shall be the sole remedy of Lessee for such delay.
In the event that, by reason of a Lessor's Delay, Lessor fails to
substantially complete the Initial Improvements by March 15,
1995, then Lessee may terminate this Lease by giving written
notice to Lessor within fifteen (15) days after such date, which
termination shall be without further recourse or obligation of
either party hereunder and upon which termination all rights of
Lessor under the warrant documents attached hereto as EXHIBIT F
shall automatically expire and become null and void. If Lessee
fails to give such notice of termination within such time, then
the
-46-
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Commencement Date shall be delayed beyond March 15, 1995 by the
number of days of actual delay in the substantial completion of
the Premises caused by such Lessor's Delay (as reasonably
determined by the Project Architect), and such delay in the
Commencement Date shall be the sole remedy of Lessee for Lessor's
Delay.
7. LESSEE'S ACCESS TO THE PREMISES. Lessee and Lessee's consultants,
contractors and suppliers may, at Lessee's sole risk, enter upon
the Land, the Building and the Premises prior to the Commencement
Date for the limited purpose of installing communications lines
and equipment PROVIDED that such persons work in harmony with
Lessor, the General Contractor, its subcontractors and suppliers,
and with other lessees and occupants of the Building (and their
respective contractors, subcontractors and suppliers). If at any
time such entry shall cause or threaten to cause disharmony or
otherwise interfere with the orderly completion or operation of
the Building, Lessor shall have the right upon twenty-four (24)
hours' written notice to Lessee to withdraw the consent to such
entry given in this Paragraph. Any such entry onto the Land, the
Bui1ding or the Premises shall be deemed to be under all of the
terms, covenants, conditions and provisions of this Lease except
the covenant to pay Rent.
8. LESSOR'S AND LESSEE'S REPRESENTATIVES. Prior to the commencement
of any design work for the Premises, each party hereto shall
designate in writing to the other a person as "Lessor's
Representative" and "Lessee's Representative" respectively, which
person shall be available during ordinary business hours to
review the progress of the work and to respond to issues which
arise during construction. Each party may rely on the other's
Representative with respect to all matters which pertain to this
Work Letter, each party having authorized its Representative to
make decisions binding upon such party with respect to such
matters.
9. PUNCHLIST. The punchlist shall be developed by the Project
Architect not later than the Commencement Date by means of a
joint inspection of the Premises by Lessor and Lessee. Lessor
shall complete all punchlist work as expeditiously as possible as
part of the construction of the Initial Improvements.
10. POSSESSION BY LESSEE. The Premises (including the Initial
Improvements) shall be deemed to be accepted by Lessee except for
such items as are specified in a written notice given by Lessee
to Lessor not later than thirty (30) days
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after the date on which Lessee takes possession of the Premises
except for (i) latent defects not reasonably discoverable within
such 30-day period, and (ii) defects which are not reasonably
discoverable during such 30-day period because of the seasonal
impact of the defect. Lessor shall correct the items set forth in
such notice as soon as practicable, and in all events within
thirty (30) days after such notice, as part of the construction
of the Initial Improvements.
11. GENERAL. A breach by Lessee of any provision of this Work Letter
shall constitute a default under the Lease, for which Lessor
shall have all remedies therein provided.
12. SAVINGS. In the event that after completion of the Initial
Improvements and payment in full therefor there remains
unexpended any portion of Lessor's Contribution, then Lessee
shall receive a credit against the first monthly installments of
Basic Rent due and payable under this Lease in an amount equal to
such unexpended portion of Lessor's Contribution, but in no event
shall Lessor be required to make any payment to Lessee.
-48-
52
SCHEDULE 1
----------
APPROVED WORKING DRAWINGS
-------------------------
[SEE ATTACHED DRAWING]
[Exhibit consists of architect's drawing of property
leased to the Company and improvements thereto.]
-49-
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SCHEDULE 2
----------
APPROVED BUDGET
---------------
[See attached budget]
DESCRIPTION QUANTITY UNIT U/P COST TOTALS Subs
----------------------------------------------------------------------
CONCRETE
------------------------ ---------------------
SUBTOTAL CONCRETE $0
ROUGH CARPENTRY
BLOCKING 1 ALLOW $1,000.00 $1,000
------------------------ --------------------
SUBTOTAL ROUGH CARPENTRY $1,000 $0
MILLWORK
BASE CABINETS AT KITCHEN 7 LF $125.00 $875
WALL CABINETS AT KITCHEN 7 LF $135.00 $945
COUNTER TOP 2'-6" DEEP 7 LF $40.00 $280
------------------------ -------------------
SUBTOTAL MILLWORK $2,100 $20,170
Woodworks
MISC. METALS
------------------------ -------------------
SUBTOTAL MISC. IRON $0 $0
GLASS AND GLAZING
GLASS WALL AT EXEC. OFFICES 0 LF $175.00 $0
GLASS WALL AT CONFERENCE RM 18 LF $150.00 $2,700
--------------------------- -------------
SUBTOTAL GLASS AND GLAZING $2,700
$1,750
$6,475
IBG
DRYWALL
TYPE A-6" above ceiling 270 LF $28.00 $7,560
TYPE A1-6' ABOVE CEILING WITH INSULATION 297 LF $31.00
$9,207
TYPE B-ONE LAYER TO DECK WITH INSULATION 56 LF $37.00
$2,146
PERIMETER WALL BY OWNER, existing
DRYWALL CEILINGS not shown
INSTALL HM FRAMES 11 EA $35.00 $385
FINISH WINDOW SILL AND HEAD N/C
EXTERIOR WALL MULLION DETAIL 6 EA $80.00 $400
TOUCH-UP EXISTING CONCRETE COLUMNS 7 EA $225.00 $1,575
---------------------------------- -------------
SUBTOTAL DRYWALL $21,273 $21,000
TJ
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DOORS AND HARDWARE
3070 HARDWOOD DOOR, NATURAL FINISH 14 EA $185.00 $2,590
ALUMINUM ENTRY FRAME WITH SIDELITE 1 EA $750.00 $750
inc.
ALUMINUM ENTRY DOOR 1 EA $350.00 $350 inc.
DOUBLE HOLLOW METAL FRAME 1 EA $115.00 $115
SINGLE HOLLOW METAL FRAMES 7' 10 EA $90.00 $900
WOOD FRAMES 2 EA $125.00 $250 inc.
DOOR HARDWARE 13 SETS $165.00 $2,145
ELECTRIC STRIKE AT ENTRY 1 EA $300.00 $300
INSTALL DOORS AND HARDWARE 15 EA $90.00 $1,350
-------------------------- -------------
SUBTOTAL DOORS AND HARDWARE $8,750
$6,958
PSI
ACOUSTICAL CEILINGS
2X2 TEGULAR MINABOARD 7,216 SF $1.70 $12,287
PREMIUM FOR FINELINE GRID SF $0.20 N/C
PATCH 12"X12" SPLINE CEILING
AT 2ND FLR 2 MD $450.00 $900
SPLINE TILE 1 LOT $200.00 $200
----------- -------------------
SUBTOTAL ACOUSTICAL CEILINGS
$13,367 $15,000
Cheviot
FLOORING
VCT FLOORING 67 SF $1.20 $80
FLOOR PREP-INCLUDES SAWCUT
SLAB AREA 1 ALLOW $1,000.00 $1,000
CARPET (Allowance per spec. #6,
furnish and install) 847 SY $18.00 $15,243
CARPET At the elevator lobby 96 SY By Owner
VINYL BASE 1,647 LF $1.10 $1,812
COMPUTER ROOM FLOOR Not required 30oz carpet loop
------------------------------ -----------------------------
pile ($15/yd)
SUBTOTAL FLOORING $18,135 $15,635
$500
PAINTING AND WALLCOVERING JMA
FIELD FINISH WOOD DOORS Not required, field finish
PAINT FRAMES 11 EA $35.00 $385
PAINT BASE BUILDING DOOR & FRAME 1 EA $70.00 $70
FABRIC WALL COVERING Assume not required
PAINT DRYWALL CEILINGS None
PAINT INSIDE OF OUTSIDE 1,296 SF $0.30 $389
PAINT DRYWALL 12,250 SF $0.30 $3,575
PAINT COLUMNS (Extra cost of primer) 7 EA $75.00 $525
POLYMIX N/C
----------------------------- ------------------
SUBTOTAL PAINTING AND WALLCOVERING
$5,044 $4,310
EMS
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SPECIALTIES
WINDOW BLINDS N/C
SIGNAGE BY OWNER
TOILET ACC. Not required
APPLIANCES BY OTHERS
FURNITURE ITEMS NOT INCLUDED
----------------------------- ------------------
SUBTOTAL SPECIALTIES $0 $0
FIREPROOFING
PATCH FIRE PROOFING NOT REQ'D
----------------------------- ------------------
SUBTOTAL FIREPROOFING $0 $0
PLUMBING
KITCHEN SINK 1 EA $650.00 $650
DRINKING FOUNTAIN Not required
HOT AND COLD WATER PIPING 45 LF $10.00 $450
SANITARY WASTE PIPING 42 LF $12.50 $525
VENT LINE 52 LF $11.00 $572
CORE FLOOR 1 EA $80.00 $80
HOT WATER HEATER 1 EA $425.00 $425
------------------ -------------------
SUBTOTAL PLUMBING $0.35 /SF $2,702 $4,028
WMC
FIRE PROTECTION
DROP HEADS (1 per 80 sf) 56 EA $85.00 $7,305
DESIGN BUILD 1 LOT $400.00 $400
BUILDING MANAGER FEE FOR SHUTDOWNS 5 EA $20.00 $100
---------------------------------------- ----------
$500
SUBTOTAL FIRE PROTECTION $1.01 /SF $7,805
$9,000
Rustic
HVAC
VAV BOXES BY OWNER
ACTIVATE VAV CONTROLS-ALLOW 31 EA $150.00 $4,650
EXHAUST FANS AT CONF RM & computer 1,800 CFM $0.55 $990
SHEET METAL (.25#/sf)-Down stream
of the vav's 1,719 LBS $3.10 $5,328
G,R,D'S 22 EA $90.00 $1,980
LINEAR DIFFUSERS @ PERIMETER COVE 30 EA $115.00 $3,450
INSTALL ARCHITECTURAL GRILLE-FBO 25 EA Not
required, existing
DUCT INSULATION 1 LOT $2,500.00 $2,500
VOLUME DAMPERS 35 EA $20.00 INC
MOUNT THERMOSTATS-For interior
VAV boxes 14 EA $75.00 $1,050
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MOUNT THERMOSTATS-For exterior
fan powered boxes 15 EA $75.00 $1,125
BALANCING 22 EA $30.00 $660 Design
DESIGN BUILD HVAC & PLUMBING 1 LOT $2,000.00 $2,000
$1,200
SUBS OVERHEAD 12.00% $21,733.00 $2,606
--------------- -------------------
SUBTOTAL HVAC $3.42 /SF $26,341 $24,341
JMA
ELECTRICAL
LIGHTING
2X4 TROFFER 81 EA $150.00 $12,150
EDISON PRICE FIXTURE 9 EA $250.00 $2,250
FLUORESCENT DOWNLIGHT 6 EA $180.00 $1,080
EXIT LIGHTING 6 EA $155.00 $930
PREMIUM FOR BATTERY POWER BACKUP 1 LOT $500.00 $500
TASK LIGHTING EA $130.00 W/FURNTR
POWER
SWITCHES 19 EA $35.00 $665
3-WAY SWITCHES 5 EA $48.00 $240
DIMMER SWITCHES 1 LOT $250.00 $250
DUPLEX RECEPTACLES 45 EA $35.00 $1,575
30-AMP DEDICATER FOR COPIER 1 EA $80.00 $80
GFI OUTLETS 1 EA $48.00 $48
VOICE/DATA OUTLETS 20 EA $25.00 $500
FURNITURE POWER FEEDS 8 EA $275.00 $0
FURNITURE DATA POKE THRUS 0 EA $250.00 $0
METER SOCKET FOR THIS TENANT 1 EA $200.00 $200
HV PANELS 1 EA $1,900.00 $1,900
LV PANELS 1 EA $1,700.00 $1,700
XXXXXXXXXXX-00 XXX 0 EA $1,450.00 $1,450
FEEDER CABLE 1 LOT $175.00 $175
CARD READER 1 EA $650.00 $650
WIRE HOT WATER HEATER 1 EA $275.00 $275
WIRE EXHAUST FANS 2 EA $325.00 $650
TAP BUS DUCT 1 EA $600.00 $600
FAN POWERED BOXES WIRE UNDER BASE BUILDING CONTRACT
VAV BOXES WIRE UNDER BASE BUILDING CONTRACT
DESIGN BUILD 1 LOT $600.00 $600
FIRE ALARM
PULL STATIONS 1 EA $250.00 $250
VISUAL DISPLAY 0 EA $210.00 $0
BUILDING MANAGER FEES FOR F.A. SHUTDOWNS 2 EA $20.00
$40
HORN LIGHTS 4 EA $225.00 $900
SMOKE DETECTORS 4 EA $200.00 $800 Use deduct
TEMPORARY POWER 1 LOT $500.00 $500 ($1,000)
----------------- -------------------
SUBTOTAL ELECTRICAL $4.02 /SF $30,858 $30,000
Interstate
-----------------
SUBTOTAL TRADES $140,174 $159,865
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57
JOB EXPENSE
TEMPORARY POWER USAGE BY OWNER
GEN LIABILITY INSURANCE 0.185 LS $7,200.00 $1,332
BUILDING PERMITS 200 M $10.00 $2,000
MISC. CLEANING LABOR 5 MD $290.00 $1,450
DUMPSTERS 4 PULLS $450.00 $1,800
FINAL CLEANING 7700 SF $0.15 $1,155
C OF O 1 LOT $400.00 $400
FIRE DEPT. PERMIT 1 EA $250.00 $250
-------------------- -------------------
SUBTOTAL JOB EXPENSE $8,387 $8,387
GENERAL CONDITIONS
PROJECT MANAGER 1.2 MOS $7,000.00 $8,400
POSTAGE 1 MOS $300.00 $300
BLUEPRINTS 1 LOT $750.00 $750
TEMP OFFICE 1 LOT $750.00 $750
TELEPHONE 1 MO $500.00 $500
MISC. GENERAL EXPENSE 1.5 MO $1,000.00 $1,500
----------------------- -------------------
SUBTOTAL GENERAL CONDITIONS $12,200
$12,200
FEE 5.00% $160,761.00 $8,038 $9,023
--------------------------- -------------------
SUBTOTAL $168,799 $189,475
CONTINGENCY $0
BOND $0
Alt #1 $2,988
Alt #2 $4,787
Alt #3 $20,560
Alt #4 $0
Alt #5 $7,099
--------------------------- -------------------
TOTAL COST OF CONSTRUCTION $204,230
$189,475
Owner furnished alternate #2 ($4,787)
($4,787)
Owner furnished alternate #5 ($7,099)
($7,099)
-------------------
Total tenant cost $192,345 $177,588
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EXHIBIT D
---------
SERVICES PROVIDED BY LESSOR
---------------------------
This Exhibit is incorporated by reference into the Lease dated
October 28, 1994 by and between Massachusetts Institute of Technology,
as Lessor, and Free Radical Sciences, Inc., as Lessee. Terms defined in
or by reference in the Lease not otherwise defined herein shall have
the same meaning herein as therein.
Lessor shall provide the following services at cost at the Building:
1. Heating and air conditioning services for the Premises as demised
at the start of the Term for normal office operations between the
hours of 8:00 a.m. and 6:00 p.m., Monday through Friday, except
on national or state holidays. Excluded from such services are
air conditioning requirements for computers or other exceptional
office machinery. If Lessee air conditioning or heating services
at hours other than those set forth above, Lessor shall provide
such service, and Lessee shall pay Lessor's costs to furnish such
service as Additional Rent.
2. Maintenance of the following:
All Building heating equipment, electrical equipment, and
plumbing systems in public areas only; all Building air
conditioning equipment, excluding special air conditioning
equipment; all window frames and glass, unless the damage
to any of the above is caused by the willful neglect or
misuse by Lessee.
3. Nightly (Monday-Friday) cleaning of the public corridors,
stairwells, lobbies, bathrooms; and cleaning of the windows, both
inside and out, two (2) times per year.
4. Extermination of all public and tenanted areas of the Building,
as the management of the Building deems necessary.
5. Structural maintenance of the Premises including repairs to the
roof, exterior walls of the building and structural damage to the
floors.
6. Lettering for up to a maximum of three names in the Building
directory located in the main lobby.
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7. Snow removal, landscaping maintenance, cafeteria management, and
other services as deemed necessary by Lessor for the normal
operation of the Building.
8. Security for the Building as reasonably determined by Lessor.
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60
EXHIBIT E
---------
SERVICES PROVIDED BY LESSEE
---------------------------
This Exhibit is incorporated by reference into the Lease dated
October 28, 1994 by and between Massachusetts Institute of Technology,
as Lessor, and Free Radical Sciences, Inc., as Lessee. Terms defined in
or by reference in the Lease not otherwise defined herein shall have
the same meaning herein as therein.
Lessee shall provide and pay for all maintenance of and repairs
to the Premises necessary to keep the Premises in good condition or in
as good a condition as the Premises were at the beginning of the Term
or may be put in thereafter (damage from taking or casualty or
reasonable wear and tear only excepted). Such repairs and maintenance
shall include but not be limited to the following:
A. The maintenance and repair of any plumbing systems within
the Premises (and serving solely the Premises), and the
repair of any damage to the Premises or to the Building
caused by the malfunction of such plumbing Systems;
B. The maintenance and repair of all electrical wiring,
outlets, switches and light fixtures within the Premises
(and serving solely the Premises);
C The maintenance and repair of all hardware within the
Premises;
D. The maintenance and repair of all walls, doors, ceilings,
and floors.
E. The replacement of fluorescent light tubes and ballasts.
This service is available through Building management on a
time and materials basis.
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EXHIBIT F
---------
FORM OF WARRANTS AGREEMENT
--------------------------
This Exhibit is incorporated by reference into the Lease dated
October 28, 1994 by and between Massachusetts Institute of Technology,
as Lessor, and Free Radical Sciences, Inc., as Lessee.
[SEE ATTACHED FORM OF AGREEMENT]
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