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EXHIBIT 10.6
TUFTS UNIVERSITY
000 Xxxxxxxx Xxxx
Xxxxx Xxxxxxx, Xxxxxxxxxxxxx
LEASE
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THIS LEASE is made in North Grafton, Massachusetts effective on the Date of
Lease stated in Article 1 between the Landlord and the Tenant named in Article
1. In consideration of the Rent payable by Tenant and of the agreements to be
performed and observed by Tenant, Landlord hereby leases the Premises to Tenant,
and Tenant hereby takes the Premises from Landlord, subject to the provisions
and for the term stated below:
ARTICLE 1
Reference Data and Definitions
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SECTION 1.01 - TERMS REFERRED TO: Each reference in this lease
to any of the following terms incorporate the data stated for that term in this
Section 1.01:
DATE OF LEASE: June 16, 1995
LANDLORD: Trustees of Tufts College, a Massachusetts corporation established
pursuant to the provisions of Massachusetts law its successors and assigns.
LANDLORD'S ADDRESS: Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
TENANT: X. X. Xxxxx Co. - Conn., a
corporation under the laws of Delaware.
TENANT'S ADDRESS: X. X. Xxxxx & Co. - Conn.
One Ledgemont Center
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
TERM COMMENCEMENT DATE: The date on which Landlord acquires occupancy permit
from the town of Grafton and conditions precedent to the Lease set forth in
Section 2.06 are met, but in no event earlier than September 11, 1995.
STATED EXPIRATION DATE: September 30, 1998 or as defined in Section 1.03, if
different.
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PERMITTED USE: General office, animal husbandry and production, veterinary
procedures, biomedical research and development and related accessory uses, to
the extent authorized under applicable Legal Requirements in accordance with the
attached protocol Exhibit C. Tenant may bring animals on the Premises only from
source herds qualified, and, if necessary, re-qualified in strict accordance
with the terms of Exhibit C of this Lease.
LAND: The land on which the Premises are located with the boundaries shown in
Exhibit A to this Lease. Access to the Premises will be provided via the access
road shown on said Exhibit A.
BUILDING: The 8,100 square foot animal husbandry/biomedical research and
development facilities on the Land.
PREMISES: The Land and all structure and improvements now or in the future on
the Land, including the Building, grain bins, generator, gas tank pad and the
Improvements.
LEASE TERM: The period of time between the Term Commencement Date and the Lease
Termination Date.
BASIC RENT: The amounts specified in Sections 1) A, B, and C. of the Rent Rider
attached as Exhibit B.
SECTION 1.02 - GENERAL PROVISIONS. For all purposes of this Lease, unless
the context otherwise requires:
(a) A pronoun in one gender includes and applies to the other
genders as well.
(b) Each definition stated in Section 1.01 or 1.03 of this Lease
applies equally to the singular and the plural forms of the word or term
defined.
(c) Any reference to a document defined in Section 1.03 of this
Lease is to the document as originally executed, or, if amended or supplemented
as provided in this Lease, to the document as amended or supplemented and in
effect at the relevant time of reference.
(d) All accounting terms not otherwise defined in this Lease have
the meanings assigned to them under generally accepted accounting principles.
(e) All references in Section 1.01 are subject to the specific
definitions (if any) in Section 1.03.
SECTION 1.03 - DEFINITIONS. Each underlined word or term in this Section
1.03 has the meaning stated immediately after it.
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ADDITIONAL RENT. All costs of effluent removal from the effluent storage
tank, all metered costs of electricity, water and sewer charges provided in
Section 2) of Exhibit B to this Lease and other charges agreed to by Tenant and
Landlord under separate written agreement.
AUTHORIZATIONS. All franchises, licenses, permits and other governmental
consents issued by Governmental Authorities under Legal Requirements which are
or may be required for the occupancy of the Premises and the conduct of a
Permitted Use on the Premises.
BUSINESS DAY. A day which is not a Saturday, Sunday or other day on which
banks in Worcester, Massachusetts, are authorized or required by law or
executive order to remain closed.
DEFAULT. Any event or condition specified in Article 20 so long as any
applicable requirements for the giving of notice or lapse of time or both have
not been fulfilled.
EVENT OF DEFAULT. Any event or condition specified in Article 20 if all
applicable requirements for the giving of notice or lapse of time or both have
been fulfilled.
GOVERNMENTAL AUTHORITY. United States of America, Commonwealth of
Massachusetts, Town of North Grafton, County of Worcester, and any political
subdivision, agency, department, commission, board, bureau or instrumentality of
any of them.
HAZARDOUS SUBSTANCES. "Oil", "hazardous materials" "hazardous wastes" and
"hazardous substances" as those terms are defined under 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 6901, et sea., as amended, Massachusetts General Laws, Chapters
21C and 21E, as amended, and the regulations from time to time adopted under
those laws.
IMPROVEMENTS. All (i) structures located in and forming a part of the
Building, including but not limited to, walls, ceilings, doors and floor
covering, (ii) pipes, wires, conduits, controls and fixtures relating to
utilities located in and serving the Building, and (iii) structures, fixtures,
equipment and personal property of any kind installed on the Premises in such a
manner that they become part of the Premises or the Building under law or that
they cannot be removed without material damage to the structure, fixture,
equipment or personal property or to the Premises or the Building, provided that
Improvements do not include equipment purchased and installed by Tenant for use
in its research and development business even if affixed to the floor and
connected to the utility systems of the Building.
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INSURANCE PREMIUMS. The cost of all insurance maintained by landlord under
the provisions of Section 15.03.
INSURANCE REQUIREMENTS. All terms of any policy of insurance maintained by
Landlord or Tenant and applicable to the Premises; all requirements of the
issuer of any such policy; and all orders, rules, regulations and other
requirements of the National Fire Protection Association (or any other body
exercising similar functions) applicable to any condition, operation, use or
occupancy of all or any part of the Premises.
LEASE. This document, all exhibits and riders attached and referred to in
this document and all amendments to this document, the exhibits and riders.
LEASE TERM. The period stated in Section 1.01 beginning on the Term
Commencement Date. The Lease Term includes the period of any extension exercised
by Tenant as provided in this Lease.
LEASE TERMINATION DATE. The earliest to occur of (a) the Stated Expiration
Date, (b) the termination of this Lease by Landlord as the result of an Event of
Default, (c) the termination of this Lease under Article 17 (Damage or
Destruction) or Article 18 (eminent Domain), or Section 24.03 (Option to
Terminate), or (d) the termination of this Lease under Section 3.01 or 24.02.
LEASE YEAR. Each twelve consecutive calendar month period ending on the day
before an anniversary of the Term Commencement Date (or the first day of the
next succeeding calendar month if the Term Commencement Date occurs other than
on the first day of a month); provided that (a) the first Lease Year includes
the partial month, if any, between the Term Commencement Date and the first day
of the next calendar month and (b) the last Lease Year will end on the Lease
Termination Date.
LEGAL REQUIREMENTS. (a) All statutes, codes, ordinances (and rules and
regulations thereunder) and all executive, judicial and administrative orders,
judgments, decrees and injunctions of or by any Governmental Authority which are
applicable to any condition or use of the Premises, Building or Land, and (b)
the provisions of all Authorizations.
MINOR IMPROVEMENTS. Improvements by Tenant which (a) do not cost more than
a total of Three Thousand Dollars ($3,000) and (b) do not involve structural
components, roof, exterior or foundations of the Building, or the effluent
handling system.
OCCUPANCY ARRANGEMENT. With respect to all or any part of the Premises or
this Lease, and whether (a) written or unwritten or (b) for all or any portion
of the Lease Term, an assignment, a sublease, a tenancy at will, a tenancy at
sufferance or any other arrangement (including but not limited to a license or
concession) under which a Person occupies the Premises for any purpose.
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PERSON. An individual, a corporation, a company, a voluntary association, a
partnership, a trust, an unincorporated organization or a Governmental
Authority.
RENT. Basic Rent and all Additional Rent.
RESTORATION. As defined in Section 17.02.
STATED EXPIRATION DATE. The later to occur of (i) date as stated in Section
1.01, or (ii) last day of the final Lease Year of the Lease Term.
TAKING. The taking or condemnation of title to or of possession or use of
all or any part of the Premises by a Governmental Authority for any public use
or purpose, or any proceeding or negotiations which might result in such a
taking, or any sale or lease in lieu of such a taking.
TOTAL TAKING. (i) a Taking of: (a) the fee interest in all or substantially
all of the Land or the Building or (b) such title to or easement in, over, under
or such rights to occupy and use any part of the Land or the Building to the
exclusion of Landlord as, in the good faith judgment of Landlord, unreasonably
restricts access to the Building by vehicle or renders the portion of the
Building remaining after such taking (even if restoration were made) unsuitable
or uneconomical for the continued use and occupancy of the Building for the
Permitted Use or (ii) a Taking of all or substantially all of the Premises or
such title to or easement in, on or over the Premises to the exclusion of Tenant
which in the good faith judgment of Landlord prohibits access to the Premises or
the exercise, to any material extent, by Tenant of its rights under this Lease.
TUFTS UNIVERSITY. The Trustees of Tufts College, a Massachusetts
not-for-profit corporation established pursuant to the provisions of
Massachusetts law.
ARTICLE 2
Premises
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SECTION 2.01 - PREMISES. Landlord hereby leases the Premises to Tenant, and
Tenant hereby takes the Premises from Landlord, subject to the provisions of
this Lease and the Permitted Exceptions.
SECTION 2.02 - TENANT FIT-UP. Landlord agrees that it shall complete the
following tasks to Tenants reasonable satisfaction before the Term Commencement
Date at no cost to Tenant:
(a) Landlord will pave the Land around the Building in accordance
with the site plan attached hereto as Exhibit A. Landlord will
install barrier protections satisfactory to Tenant to protect
equipment and fixtures on the Premises which are located outside
of the building.
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(b) Landlord will pave the access road to the Premises the entire
distance from the Building out to the existing paved road with
which the access road intersects.
(c) Landlord will arrange for 24-hour per day direct inward
dialing telephone service to the Premises through Landlord's
telephone network, in which case Landlord will pay the one-time
charge for Tenant's connection to the Landlord's telephone
network. Tenant, at its option, and at its sole cost, shall have
the right to cause telephone service which does not go through
the Landlord's telephone network to be installed for the
Premises.
(d) Landlord will install alarms in the Building and link them to
the main office of the Landlord's police such that the said
police will be immediately notified of a power failure, ambient
air temperature changes, pump levels for the effluent handling
system, excess levels of methane gas, or smoke, within the
Building. Landlord shall pay the monthly charges for telephone
lines to the alarm. Landlord and Tenant shall agree on a written
protocol (Exhibit D) for responding to emergencies at the
Premises. Tenant, at its option, and at its sole cost, shall have
the right to use an independent alarm company exclusively to
respond to alarms at the Premises.
(e) Landlord will clean and disinfect all portions of the
Building to be occupied by Tenant. Landlord and Tenant shall
agree on a written protocol (Exhibit D) for such cleaning and
disinfectants.
(f) Landlord shall contribute Ten Thousand Dollars ($10.000.00)
to Tenant to defray a portion of the costs that Tenant will incur
in Fit-Up of the Building.
(g) Landlord shall complete all other items in Exhibit F listed
under the caption "Improvements by Tufts.
Notwithstanding anything to the contrary contained in this Lease, in no
event shall Landlord be liable for any loss, damage, or injury to the Premises
or to any Person or to any Property (including without limitation animals) with
respect to any of Landlord's acts or omissions under Subsections 2.02(d) and
(e), and Tenant shall hold Landlord harmless from same. Tenant shall have the
right to inspect the Premises to determine Landlord's full compliance with the
provisions of this Section prior to taking occupancy of the Premises.
SECTION 2.03 - EFFLUENT SYSTEM.
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(a) The Premises are served by an effluent handling system which
disposes of animal wastes and waste water from the Premises. The
portion
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of the effluent handling systems beyond the effluent pump station
to and including the effluent holding tank will be maintained
exclusively by Landlord at Landlord's sole cost.
(b) Landlord will be responsible for repairing at its own cost,
the portion of the effluent handling system from beyond the
effluent pump station to and including the effluent holding tank
in the event of malfunctions, leaks, collapses and the like.
(c) Landlord will as often as necessary pump effluent from the
effluent holding tank. The effluent so pumped from the effluent
holding tank shall be spread by Landlord in areas reasonably
acceptable to Tenant. The non-potable water distributed to the
pig housing rooms will be metered. Tenant will pay Landlord a
charge not to exceed $0.02 per gallon of non-potable water used
by Tenant for Landlord's services in pumping the effluent holding
tank and spreading the effluent. If because of some legal
requirements change, the Landlord must change the method of
disposing of effluent from the effluent holding tank, then the
cost of $0.02 per gallon will be adjusted by agreement of
Landlord and Tenant.
SECTION 2.04 - OTHER ANIMALS IN PROXIMITY. In the event that Landlord plans
to maintain animals (particularly primates) on its North Grafton campus within
two hundred and fifty (250) yards of the boundary lines of the Premises,
Landlord agrees (a) to notify Tenant in writing of Landlord's plans as early as
possible, and (b) not to so maintain animals until Tenant consents in writing to
same, provided that: Tenant agrees not to unreasonably delay or withhold said
consent.
SECTION 2.05 - CONFIDENTIALITY. Landlord agrees to maintain in confidence
and not use, and to cause its employees to maintain in confidence and not use,
any and all information of Tenant relating to Tenant's use and occupancy of the
Premises or relating to matters observed or otherwise disclosed to Landlord's
employees while on or about the Premises. This section does not apply to
information which the Landlord can show (a) is known to the public through no
fault of Landlord, or (b) was known to Landlord prior to its disclosure by
Tenant to Landlord.
SECTION 2.06 - CONDITIONS PRECEDENT TO LEASE. This Lease and the rights and
obligations of Landlord and Tenant hereunder are subject to and conditioned upon
the occurrence of each of the following express conditions on or before
September 11, 1995:
(a) Completion of the items of Tenant Fit-Up provided in Section
2.02 of this Lease to the satisfaction of Tenant;
(b) Approval, if required, by the Town of North Grafton of
Tenant's use and occupancy of the Premises for the purposes set
forth in this Lease;
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(c) Satisfactory evidence that the animals to be maintained in
the portion of the Premises licensed to Landlord are in good
health and free from contagious and communicable diseases of
swine to the satisfaction of Tenant;
(d) Execution by Landlord and Tenant of the letter agreement
("Re: Tufts Occupation of 2.500 s.f. at Swine Unit II") of even
date granted by Tenant to Landlord far use of a portion of the
Premises under tenancy at will by Tenant to maintain pigs.
ARTICLE 3
Term
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SECTION 3.01 - TERM COMMENCEMENT. The Lease Term will begin on the
Term Commencement Date. If the Lease Term cannot begin on or before
September 11, 1995 because no occupancy permit has been granted by
the Town of Grafton or for any other reason not caused entirely by
the fault or omission of Tenant, then Tenant may terminate this Lease
by giving Landlord the (10) days written notice of such termination.
Such right to terminate shall expire if Tenant waives such right in
writing expressly referring to Section 3.01 or if Tenant fully
occupies the Premises for purposes of the Permitted use.
SECTION 3.02 - TERMINATION. The Lease Term will end on the Lease
Termination Date.
SECTION 3.03 - ESTOPPEL CERTIFICATE. If either the Term commencement
Date or the Stated Expiration Date occurs on a date other than as
stated in Section 1.01, Landlord and Tenant agree to execute a
certificate in the form of the estoppel certificate referred to in
Section 25.02 or such other form as either may request, establishing
the Term Commencement Date and the Stated Expiration Date.
ARTICLE 4
Rent
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SECTION 4.01 - BASIC RENT. Tenant agrees to pay Landlord the Basic Rent
as annual rent for the Premises for each Lease Year, without offset or
deduction and without previous demand. Tenant agrees to pay Basic Rent
in equal monthly installments in advance on the first day of each
calendar month during the Lease Term, except that the first monthly
installment, pro-rated for the partial month in which the Lease Term
begins, is due on the Term Commencement Date.
ARTICLE 5
Additional Rent/Operating Expenses
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SECTION 5.01 - MONTHLY PAYMENTS OF ADDITIONAL RENT. Tenant agrees to pay
Landlord, as Additional Rent, all costs with respect to the Premises as provided
in Exhibit B. Tenant agrees to pay to Landlord within thirty (30) days of
Tenant's receipt of Landlord's invoice for Additional Rent.
SECTION 5.02 - RECORDS. Landlord agrees to maintain and make available to
Tenant at Tenant's request such reasonable documentation supporting its invoices
for Additional Rent as may be necessary for Tenant to verify the accuracy of the
amounts invoiced to Tenant for Additional Rent hereunder.
ARTICLE 6
Use of Premises
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SECTION 6.01 - USE RESTRICTED. The Premises may be used for the Permitted
Use and for no other purpose. No improvements may be made on or to the Premises
except as provided in this Lease.
ARTICLE 7
Improvements
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SECTION 7.01 - TENANT'S ACCESS TO THE PREMISES. Tenant and Tenant's agents,
at Tenant's sole risk, may after notice to Landlord, enter the Premises before
the Term Commencement Date in order to (a) install its furniture, furnishings
and equipment, (b) perform or inspect work necessary to make the premises ready
for Tenant's use and occupancy and to make Tenant Improvements in accordance
with Section 7.02. Permission is conditioned upon (i) Tenant delivering to
Landlord evidence of the insurance required under Section 15.01. Any entry by
Tenant will be deemed to be under all of the provisions of this Lease except the
covenant to pay Rent. Except for negligence of Landlord and its employees, if
Tenant or its agents enter the Premises before the Term Commencement Date,
Landlord will not be liable for and Tenant agrees to assume the entire risk for
any personal injury and any loss or damage which may occur to any Improvements
or to any property placed in the Premises before the term Commencement Date.
Unescorted access by Grace personnel to Tufts facilities shall be limited to the
Premises and to any public areas of the North Grafton campus such as lobbies,
library and cafeteria.
SECTION 7.02 - IMPROVEMENTS BY TENANT. Tenant agrees not to make any
Improvements (other than Minor Improvements) before or during the Lease Term,
except according to plans and specifications and using contractors first
approved by Landlord. Landlord will not unreasonably withhold or delay its
approval of Tenant's plans, specifications and contractors if Tenant
demonstrates to Landlord's satisfaction that the Improvements will not (x)
adversely affect the value, structure or mechanical systems of
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the Building, or (y) change the exterior appearance or roof line of the
Building, or (z) result in a violation of the provisions of any other lease or
agreement binding on the Landlord of which Tenant has received prior written
notice. Tenant agrees not to make any Improvements which would require unusual
expense to readapt the Premises to specialized animal housing and biomedical
research use upon termination of this Lease. All Improvements will become part
of the Premises and property of Landlord upon their completion or installation
except to the extent Landlord specifies that they must be removed at Tenant's
expense on the Lease Termination date as an express condition to Landlord's
approval of their initial installation. The construction of Improvements by
Tenant and the installation of Tenant's furniture, furnishings and equipment
will be coordinated with any work being performed by Landlord and will be
performed in such manner as to maintain harmonious labor relations and not to
damage the Building or the Premises. Except for work done by or through Landlord
before making any Improvements, Tenant will secure all necessary Authorizations;
deliver to Landlord a statement of the names of all its contractors and
subcontractors and the estimated cost of all labor and material to be furnished
by them; cause each contractor to carry (1) worker's compensation insurance in
statutory amounts covering all the contractor's and subcontractor's employees,
(2) comprehensive public liability insurance with such limits as Landlord may
reasonably require, but in no event less than $1,000,000, and (3) property
damage insurance with limits of not less than $300,000 (all such insurance to be
written by companies approved by Landlord and insuring Landlord and Tenant as
well as the contractors), and to deliver to Landlord certificates of all such
insurance; and secure casualty insurance against loss or damage to the
Improvements pending completion and deliver evidence of such insurance to
Landlord. Tenant agrees to pay promptly when due the entire cost of any work
done on the Premises by Tenant, its agents, employees, or independent
contractors, and not to cause or permit any liens for labor or materials
performed or furnished in connection with its work to attach to the Premises and
immediately to discharge any such liens which my attach. All construction work
done by Tenant, its agents, employees or independent contractors will be done in
a good and workmanlike manner and in compliance with all Legal Requirements and
Insurance Requirements. Landlord may inspect the work at any time mutually
agreed upon by Landlord and Tenant and will promptly give notice to Tenant of
any observed defects.
SECTION 7.03 - IMPROVEMENTS BY LANDLORD. Landlord warrants that as of the
Term Commencement Date all Improvements (including heating, ventilation, air
conditioning, effluent, alarm systems, and safety appliances) that are required
by the Legal Requirements and the Insurance Requirements are installed in the
Building and are in operable condition. Landlord shall be responsible for all
installations or replacements of Improvements (including safety appliances)
which Legal requirements or Insurance requirements requires be made to the
Premises before the Lease Term.
SECTION 7.04 - AIR HANDLING EQUIPMENT. Subject to any reasonable and
necessary review under Section 7.02, Landlord agrees that Tenant may install, or
cause to be installed, air handling systems in the area of the Building to be
used by Tenant for procurement.
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Landlord agrees to use all reasonable efforts to assist Tenant in obtaining
any permits, approvals and consents required from the Town of North Grafton for
said installation of said air handling systems and for any other future
Improvements by Tenant in accordance with this Article 7.
ARTICLE 8
Utilities and Landlord's Repairs and Services
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SECTION 8.01 - LIMITATIONS ON LANDLORD'S LIABILITY. Landlord will not be
liable in damages nor in default under this Lease for any failure or delay on
the part of any Person in furnishing any utilities to the Premises. No failure
or delay in furnishing any utilities to the Premises may be claimed or pleaded
as an eviction or disturbance of Tenant's possession or give Tenant any right to
terminate this Lease or give rise to any claim for set-off or abatement of Rent
or excuse Tenant from the performance of any of its obligations under this
Lease. Notwithstanding the foregoing, nothing in this Section 8.01 shall apply
to any failure or delay in the provision of utilities caused by physical damage
or interference to conduits, pipes and the like occurring on property owned or
leased by Landlord (including the Premises) to the extent such physical damage
or interference is caused by negligent acts or negligent omissions of Landlord
or of Landlord's employees, agents, contractors, licensees or tenants (other
than Tenant).
SECTION 8.02 - LANDLORD'S REPAIRS. Landlord agrees to make those repairs
and replacements to the structural components, roof, exterior and foundations of
the Building, the emergency generator and effluent handling system.
Landlord agrees, at its expense, to maintain and repair the items listed in
Exhibit F under the caption "Items Included Under Basic Rent."
SECTION 8.03 - LANDLORD'S SERVICES. Landlord agrees in consideration of
Tenant's payment of Basic Rent to provide the following services at the Premises
during the Lease Term at no additional charge to Tenant: up to two hundred (200)
hours per year of repairs and maintenance; trash pickup; pest control; snow
removal; and landscaping.
Such services shall be provided in accordance with written protocols to be
mutually agreed upon by Landlord and Tenant. A draft of said protocols is
attached as Exhibit D so that the concepts described therein is accepted by both
Landlord and Tenant prior to the execution of the Lease.
At the time of executing this Lease Landlord and Tenant estimate that two
hundred (200) hours of repairs and maintenance each year will be sufficient. In
the event that the actual number of hours during the first Lease Year is less
than one hundred and fifty (150) hours or is more than two hundred and fifty
(250) hours, then Tenant shall have the one-time right to exercise the following
options on or before the day that is thirty (30)
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days after the end of the first Lease Year. If less than one hundred and fifty
(150) hours of repairs and maintenance are needed during the first Lease Year,
then Tenant may negotiate a reduction of the Basic Rent in the second and
subsequent Lease Years (including any extended Lease Term). If more than two
hundred and fifty (250) hours of repairs and maintenance are needed during the
first Lease Year, then Tenant may negotiate to increase the Basic Rent in order
to include the additional hours under the Basic Rent in the second and
subsequent Lease Years (including any extended Lease Term).
The two hundred (200) hours of repairs and maintenance which are included
in the Basic Rent includes, but is not limited to, maintenance and repair of all
items in Exhibit F listed under the caption "Items Included Under 200 Hours of
Maintenance" and also included in the Basic Rent is the cost of parts
replacement for normal wear and tear to said items. In addition, the two hundred
(200) hours of maintenance includes maintenance and repair of the effluent
handling system from the pits in the swine handling rooms through the gravity
waste pipes through the small effluent holding tanks to and including the
effluent pump station.
Repairs and maintenance are subject to a limit of two hundred (200) hours
per Lease Year. If two hundred (200) hours of repairs and maintenance are
insufficient in any Lease Year, Tenant shall have the option: (a) to provide
such additional maintenance itself or to cause such additional maintenance to be
provided by independent third parties; or (b) to agree with Landlord as to the
types and amounts of such additional maintenance and as to the costs of
Landlord's providing such additional maintenance.
SECTION 8.04 - REAL ESTATE TAXES. In consideration of the Tenant's payment
of Basic Rent, Landlord shall pay all real estate taxes assessed against or
otherwise applicable or allocated to the Premises.
ARTICLE 9
Tenant's Covenants
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SECTION 9.01 - PAY RENT. Tenant agrees to pay when due all Basic Rent and
Additional Rent as provided in Articles 4 and 6 hereof.
SECTION 9.02 - INJURY TO THE PREMISES, ETC. Tenant will not (i) injure or
deface the Premises, (ii) install any thing on the Premises except in compliance
with Legal Requirements, (iii) permit in the Premises any inflammable fluids or
chemicals not reasonably related to the Permitted Use, nor (iv) permit any
nuisance or use of the Premises which is improper, offensive, contrary to any
Legal Requirement or contrary to any written Insurance Requirement provided to
the Tenant by the Landlord.
SECTION 9.03 - SAFETY. Subject to Section 7.03 hereof, Tenant agrees to
keep the Premises equipped with all safety appliances required by Legal
Requirements or Insurance
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Requirements provided that: nothing in this Section 9.03 shall be construed to
limit or waive Landlord's obligations or Tenant's rights and remedies with
respect to the warranty provided in Section 7.03 by Landlord. Tenant agrees to
procure all Authorizations required because of Tenant's use of the Premises and
to perform at its expense any work required under any Authorization because of
such use, it being understood that the provisions of this Section may not be
construed to broaden in any way the Permitted Use.
SECTION 9.04 - EQUIPMENT. Tenant agrees not to place a load upon the floor
of the Building or to move any safe or other heavy equipment into, about or out
of the Building which causes damage to the Building and to repair promptly all
damage caused by the installation or moving of its equipment. Tenant agrees to
isolate and maintain all of Tenant's equipment which causes or may cause
airborne or structure-borne vibration or noise so as to eliminate such vibration
or noise.
SECTION 9.05 - PAY TAXES. Tenant agrees to pay promptly when due all Taxes
upon personal property (including, without limitation, fixtures and equipment)
on the Premises irrespective of the Person to whom the Taxes may be assessed.
SECTION 9.06 - MAINTENANCE. Subject to Section 7.03, Tenant agrees, at all
time during the term of this Lease, and at its own expense, (including using the
200 hour per year maintenance labor allowance) (i) to maintain the Premises,
excluding maintenance and repairs of the items in Exhibit F listed under the
caption "Items Included in Basic Rent" and excluding repairs to the structural
components, roof, exterior and foundations of the Building, in good repair and
condition (except for ordinary wear and tear), and (ii) to use all reasonable
precautions to prevent waste, Damage or injury to any part of the Premises.
Tenant will be considered to have met its obligations with respect to
maintenance if the interior of the Premises and all Building systems are
maintained in good working order through regular inspections and under service
contracts.
SECTION 9.07 - REDELIVERY. On the Lease Termination Date, Tenant agrees to
leave the Premises and surrender possession to Landlord free of (i) all tenants
or occupants claiming through or under Tenant, (ii) all liens encumbrances,
restrictions or reservations caused or consented to by Tenant, and all Hazardous
Substances released or discharged on or under the Premises by Tenant or by
employees or contractors of Tenant during the Lease Term on the Term
Commencement Date. Tenant agrees subject to the provisions of Articles 17 and
18, to surrender the Premises, including all Improvements except those which
Tenant is required to remove as provided in Section 7.02, to Landlord broom
clean and in good condition and repair (ordinary wear and tear, damage by fire
or other casualty, and repairs which Landlord is obligated to make only
excepted) with all damage resulting from removal of (i) Tenant's furniture,
furnishings and equipment and (ii) any Improvements which Tenant is required to
remove as provided in Section 7.06 repaired at Tenant's expense to Landlord's
reasonable satisfaction.
ARTICLE 10
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Compliance with Requirements
----------------------------
SECTION 10.01 - LEGAL REQUIREMENTS. Subject to Sections 7.03 and 9.03,
Tenant agrees that its use of the Premises shall comply with all applicable
Legal Requirements. Tenant agrees to pay all costs, liabilities, losses,
damages, fines penalties, claims and demands, that may arise out of or be
imposed because of the failure of Tenant to comply with the covenants of this
Article 10.
In the event that Landlord notifies Tenant that one or more employees of
Tenant have failed to comply with any applicable laws then in effect, or with
any reasonable, standing policies of Landlord applied without discrimination to
Tenant, with respect to employees or property of Landlord at the North Grafton
campus, then Tenant shall use all reasonable efforts to cause said employee or
employees of Tenant to promptly cease such non-compliance.
SECTION 10.02 - CONTESTS. Tenant has the right to contest by appropriate
legal proceedings diligently conducted in good faith, in the name of Tenant or
Landlord (if legally required) or both (if legally required), without expense or
liability to Landlord, the validity of application of any Legal Requirement. If
compliance with the terms of any Legal Requirements may legally be delayed
pending the prosecution of any such proceeding, Tenant may delay compliance
until the final determination of the proceeding.
SECTION 10.03 - ENVIRONMENTAL LEGAL REQUIREMENTS. Except to the extent
permitted under applicable Legal Requirements, Tenant agrees not to cause or
permit any Hazardous Substances, including sharps, medical disposables and the
like, to be released on the Premises or into the air, or to be introduced into
the sewage or other waste disposal system serving the Premises. Tenant agrees to
generate, store or dispose of Hazardous Substances on the Premises or dispose of
Hazardous Substances from the Premises to any other location only in compliance
with all applicable Legal Requirements and to notify Landlord of any incident
which would require the filing of a notice under any Legal Requirement. Tenant
agrees to provide Landlord with such information required by Governmental
Authorities as Landlord may reasonably request from time to time with respect to
compliance with this Section. Tenant will not be responsible for the existence
of any Hazardous Substances on or about the Premises on the Term Commencement
Date. Landlord shall be responsible for all effluent stored in the effluent
holding tank and for the proper disposal of that effluent. Tenant agrees not to
store Hazardous Substances on the Premises outside of the Building.
ARTICLE 11
Covenant Against Liens
----------------------
SECTION 11.01 - NO LIENS. Landlord and Tenant each agree not to create any
lien on the Premises and to discharge any lien on the Premises arising out of
any act or omission by it, including, but not limited to, any tar, mechanic's,
laborer's or materialman's
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lien or lien arising under Massachusetts General Laws, Chapter 21E. The
provisions of this Section 11.01 may not be construed to limit (a) Tenant's
right to encumber any equipment installed on the Premises, or (b) Landlord's
right to secure by a mortgage of the Premises (1) capital expenditures or (ii)
the refinancing of the loans used to acquire the Premises.
SECTION 11.02 - DISCHARGE. If any lien is filed against the Premises as a
result of any act or omission by Tenant, Tenant agrees to cause the lien to be
discharged of record by payment, deposit, bond, order of a court of competent
jurisdiction or otherwise, within sixty (60) days after (i) Tenant has actual or
constructive notice that it is filed, or (ii) final judgment in favor of the
holder of the lien. If Tenant fails to cause the lien to be discharged, then, in
addition to any remedies available to Landlord in case of an Event of Default,
Landlord may, but is not obligated to, discharge the lien either by paying the
amount claimed to be due or by procuring the discharge of the lien by deposit or
by bonding proceedings. Any amount paid by Landlord and all costs incurred by
Landlord in connection the removal of any lien will constitute Additional Rent
and will be paid by Tenant to Landlord on demand with interest as provided in
Section 21.06.
ARTICLE 12
Access to Premises
------------------
SECTION 12.01 - ACCESS. Subject to the second paragraph of this Section
12.01, Landlord or Landlord's agents and designees will have the right, but not
the obligation, to enter the Premises at all reasonable times during ordinary
business hours, after reasonable notice except in the case of an emergency, to
examine the Premises, to make necessary repairs, preventive maintenance checks
and replacements, to insure compliance with Legal Requirements and to exhibit
the Premises to prospective purchasers, mortgagees, and, during the last six (6)
months of the Lease Term, prospective tenants. Except in the case of an
emergency, any Person entering the Premises under this Section 12.01 will be
accompanied by a Person designated by Tenant. Reasonable notice is twenty-four
(24) hours or, in the case of a prospective purchaser or tenant, seven (7) days;
and in the latter case, Tenant has the right to secure areas of the Premises to
protect confidential information.
Landlord shall comply, and shall cause its employees, agents and
contractors to comply, with all reasonable rules and practices of Tenant
applicable to persons or animals entering or exiting the Premises or present on
the Premises, provided that: Landlord and its employees, agents and contractors
shall not be responsible for (a) complying with any such rules and practices
which are not posted in writing or of which Landlord is not advised by Tenant in
a written notice; or (b) in the event of emergency, complying with any such
rules and practices not contained in a written emergency response protocol to be
agreed upon by the parties. A preliminary draft of said protocol is attached
hereto as Exhibit D.
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ARTICLE 13
Assignment and Subletting: Occupancy Arrangements
-------------------------------------------------
SECTION 13.01 - ASSIGNMENT AND SUBLETTING. Tenant agrees not to enter into
any Occupancy Arrangement, either voluntarily or by operation of law, (other
than with a Person who is affiliated with Tenant and for a period ending when
and if such Person ceases to be affiliated with Tenant) without the prior
written consent of Landlord. For purposes of this Article 13, a person will be
considered to be affiliated with Tenant if such Person, directly or indirectly,
controls is controlled by or is under common control with Tenant.
Notwithstanding the provisions of Section 25.08 to the contrary, Landlord will
not unreasonably withhold its consent to an Occupancy Arrangement if, in the
reasonable judgment of Landlord, the proposed occupant is financially
responsible and will use the Premises for the Permitted Use.
SECTION 13.02 - PROCEDURE. If Tenant intends to enter into an Occupancy
Arrangement which requires Landlord's consent, Tenant agrees to give Landlord
notice of the name of (and a financial statement with respect to) the proposed
occupant, the exact terms of the Arrangement and a precise description of the
portion of the Premises intended to be subject to the Occupancy Arrangement.
Within thirty (30) days after receipt of the notice, Landlord will (i) consent
to the Occupancy Arrangement, or (ii) refuse to consent to the Occupancy
Arrangement. If Landlord consents to the Occupancy Arrangement, Tenant agrees
(i) to enter into the Arrangement on the exact terms described to Landlord
within thirty (30) days after Landlord's consent and to deliver to Landlord and
to the holder of any first mortgage on the Building an executed original
counterpart of the Occupancy Arrangement and (ii) to remain liable for the
payment and performance of the provisions of this Lease. Any Occupancy
Arrangement will expressly incorporate and be subject to the terms of this
Lease, which terms will be binding on all parties to the Occupancy Arrangement.
If Landlord consents to and Tenant does not enter into the Arrangement within
the thirty (30) day period, such consent will be deemed revoked and Tenant will
again comply with the terms of this Section.
ARTICLE 14
Indemnity
---------
SECTION 14.01 - TENANT'S INDEMNITY. Except to the extent waived by Landlord
under the provisions of Section 16.02, Tenant agrees to indemnify Landlord
against all claims, losses and expenses, including reasonable attorneys' fees,
which may be imposed upon or incurred by Landlord by reason of any of the
following occurrences:
(a) any negligent or wrongful act or omission on the part of Tenant, or any
of its agents, contractors, licensees or invitees, whether or not occurring
on the Premises, but only to the extent that such claims, losses and
expenses were not
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caused by Landlord or by Landlord's employees, agents, contractors,
licensees, tenants or invitees;
(b) any failure on the part of Tenant to comply with any of its obligations
under this Lease, including, but not limited to Exhibit C, whether or not
such failure constitutes a Default or Event of Default, but only to the
extent that such claims, losses and expenses were not caused by Landlord or
by Landlord's employees, agents, contractors, licensees, tenants or
invitees;
(c) any untrue or misleading statement of a material fact or any
misrepresentation of a material fact made by or on behalf of Tenant in
connection with the negotiation of this Lease;
(d) any release or threat of release of Hazardous Substances or Infectious
(porcine to porcine) Agents by Tenant, or any of its agents, contractors,
licensees or invitees, on or under the Premises during the term of this
Lease; or
(e) any other occurrences in the portion of the Building occupied
exclusively by Tenant or connected with the use or condition thereof unless
caused in whole or in part by the negligence of Landlord.
SECTION 14.02 - CLAIMS BY LANDLORD. If any proceeding is brought against
Landlord arising out of any occurrence described in Section 14.01, upon notice
from Landlord Tenant agrees, at its expense, to defend the proceeding using
legal counsel reasonably satisfactory to Landlord or, if applicable, Tenant's
insurer, provided that Tenant has not been prejudiced in any way by failure or
delay on the part of Landlord to give Tenant prompt notice of the proceeding. If
Tenant has supplied Landlord with insurance covering any of the risks described
in Section 14.01, no claim may be made against Tenant unless the insurer fails
or refuses to defend and/or pay all claims, losses and expenses incurred by
Landlord. Notwithstanding the foregoing, Landlord has the right to make claims,
institute legal proceedings, or otherwise seek redress against Tenant before the
expiration of any statute of limitations or other limitation on the time or
manner in which Landlord may seek redress regardless of whether or not any
insurer is responding.
SECTION 14.03 - LANDLORD'S LIABILITY. Except for its intentional or
negligent acts or omissions or the intentional or negligent acts or omissions of
its employees, agents, contractors, invitees, tenants or licensees, Landlord
will not be responsible or liable for any loss, damage or injury to the Premises
or to any Person or property at any time on the Premises. In no event shall
Landlord be held liable for consequential or indirect damages.
Landlord agrees that it, at a minimum, shall in connection with its use and
occupation of its North Grafton campus comply with all requirements set forth in
the protocols attached hereto so as to prevent the occurrence of contagious or
communicable disease which might affect the animals maintained by Tenant on the
Premises. The foregoing will not be construed to inhibit or prevent the practice
of veterinary medicine or
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the teaching of veterinary medicine in Tufts' Xxxxxx Hospital (Building 40) or
Wildlife Clinic (Building 17).
ARTICLE 15
Insurance
---------
SECTION 15.01 - TENANT'S INSURANCE. Tenant agrees to provide, at its
expense, and to keep in force:
(a) Comprehensive general liability insurance against claims for personal
injury, death and property damage occurring with respect to Tenant's
occupancy of the Premises having primary combined single limit coverage of
at least $1,000.000 for bodily injury and property damage.
(b) Casualty insurance against loss or damage to (i) all inventory,
furniture, furnishings and equipment owned, controlled or in use by Tenant
and situated on the Premises, (ii) all Improvements made by Tenant pending
completion and (iii) all Improvements made by Tenant which Tenant is
required to remove on the Lease Termination Date under Section 7.02, under
a so-called "All Risk" policy in an amount sufficient to replace the same
without allowance for depreciation, if available, and if not, in the amount
necessary to avoid the effect of co-insurance provisions under the
applicable policies.
(c) Worker's compensation insurance for all Tenant's employees working in
the Premises in an amount sufficient to comply with Legal Requirements.
(d) Such greater limits and such other insurance and in such amounts as may
from time to time be reasonably required by Landlord against other
insurable hazards which at the time are customarily insured against in the
case of buildings similarly situated and used.
Section 15.02 - General Insurance Provisions.
---------------------------------------------
(a) All insurance provided for in Section 15.01 will be written as primary
policies (without "contribution" or "solely in excess of coverage carried
by Lessor" provisions) and will be effected under valid and enforceable
policies, issued by insurers of recognized responsibility authorized to
write such insurance in Massachusetts and having a Best's financial rating
of B or better. Not less than five (5) days before the Term Commencement
Date, and thereafter not less than ten (10) days before the expiration
dates of the expiring policies furnished under to Section 15.01, binders,
certificates or other evidence of such insurance satisfactory to Landlord
bearing no actions evidencing the payment of premiums or accompanied by
other evidence satisfactory of Landlord of such payment, will be delivered
by Tenant to Landlord.
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(b) Nothing in this Article 15 will prevent Tenant from taking out
insurance of the kind and in the amounts provided for under this Article
under a blanket insurance policy or policies covering other properties as
well as the Premises. Any policy or policies of blanket insurance (i) will
specify, or Tenant will furnish Landlord with a written statement from the
insurers specifying, the amounts of the total insurance allocated to the
Premises, which amounts will not be less than the amounts required by
Section 15.01 and will be sufficient to prevent any of the insureds from
becoming a coinsurer within the terms of the applicable policy or policies,
(ii) will contain an "Agreed Amount" clause as to the Premises and (iii)
will otherwise comply as to endorsements and coverage with the provisions
of this Article.
(c) All policies of insurance provided for in Section 15.01 will name
Landlord and Tenant as the insured, as their respective interests may
appear, and also any mortgagee, when requested, as their respective
interests may appear, except that Landlord, and any such mortgagee ,ill
have no interest in the insurance on Tenant's personal property. Each such
policy or certificate issued by the insurer will, to the extent obtainable,
contain an agreement by the insurer that the insurance will not be canceled
without at least twenty (20) days prior written notice to Landlord and to
any other named insureds. Landlord agrees not to carry any insurance
concurrent in coverage and contributing in the event of loss with any
insurance required to be furnished by Tenant if the effect of such separate
insurance would be to reduce the protection or the payment to be made under
Tenant's insurance.
SECTION 15.03 - LANDLORD'S INSURANCE. Landlord agrees to cause the Building
(excluding any Improvements (a) by Tenant prior to their completion, or (b)
which Tenant may be required to remove upon termination of its Lease) to be
insured for the benefit of Landlord, and any mortgagee of Landlord, as their
respective interest may appear, against loss or damage under a so-called "All
Risk" policy in an amount equal to (i) the replacement value or (ii) the amount
necessary to avoid the effect of co-insurance provisions of the applicable
policies. Landlord also agrees to maintain comprehensive form boiler insurance,
rental value insurance and such other insurance against such perils and in such
amounts as may be required by any mortgages of Landlord or as Landlord may
consider prudent.
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ARTICLE 16
Waiver of Subrogation
---------------------
SECTION 16.01 - WAIVER OF SUBROGATION. If available, all insurance policies
carried by either party covering the Building and/or the Premises will contain a
clause or endorsement expressly waiving any right on the part of the insurer to
make any claim against the other party. The parties agree to use their best
efforts to insure that their policies will include such waiver clause or
endorsement.
SECTION 16.02 - WAIVER OF RIGHTS. Landlord and Tenant each waive all
claims, causes of action and rights of recovery against the other and their
respective partners, agents, officers and employees, for any loss or damage to
persons, property or business which occurs on or about the Premises or the
Building and results from any of the perils insured under any policy of
insurance maintained by Landlord and/or Tenant, regardless of cause. This waiver
includes the negligence and intentional wrongdoing of either party and their
respective agents, officers and employees but is effective only to the extent of
recovery, if any, under any such policy. This waiver will be void to the extent
that any such insurance is invalidated by reason of this waiver.
ARTICLE 17
Damage and Restoration
----------------------
SECTION 17.01 - SUBSTANTIAL DAMAGE.If the Premises is damaged by fire or
other casualty, Tenant agrees to give prompt notice to Landlord. If as a result
of fire or other casualty (i) the Premises is so damaged that substantial
alteration or reconstruction of the Premises is, in Landlord's sole opinion,
required, or (ii) any mortgagee of the Premises requires that all or a
substantial portion of insurance proceeds payable be used to retire the mortgage
debt, Landlord may, at its option, terminate this Lease by giving notice to
Tenant within sixty (60) days after the date of the damage. If, within sixty
(60) days after the date of the damage, Landlord does not begin to restore the
Premises as provided in Section 17.02 or notify Tenant of its election to
terminate this Lease, Tenant may terminate this Lease by giving notice to
Landlord within ten (10) days after the expiration of the sixty (60) day period.
If the Lease is terminated by Landlord or Tenant as provided in this Section
17.01, Rent will be abated as of the date of the damage.
SECTION 17.02 - RESTORATION. If Landlord does not terminate this Lease as
provided in Section 17.01 within sixty (60) days after the date of the damage,
Landlord agrees to begin to restore the Premises to substantially the same
condition in which it was immediately before the damage, and, subject to
Unavoidable Delays, to continue the restoration with reasonable diligence.
Landlord's restoration work will include the scope of the work done by Landlord
in originally finishing the Premises according to the Working Drawings and
subsequent Improvements made by Tenant under the provisions of Section 7.02
which are to remain part of the Premises. Landlord will not be required to
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rebuild, repair, or replace (i) any part of Tenant's furniture, furnishings,
fixtures or equipment, or (ii) any alterations and additions made by Tenant
under Section 7.02 which Tenant is required to remove on the Lease Termination
Date. landlord will not be liable for any inconvenience or annoyance to Tenant
or injury to the business of Tenant resulting from the damage to or the repair
of the Premises, except that Landlord will allow Tenant a fair reduction of
Basic Rent to the extent the Premises are unfit for occupancy from the date of
the occurrence of the damage to a date thirty (30) days after completion of
Landlord's repairs.
ARTICLE 18
Eminent Domain
--------------
SECTION 18.01 - TOTAL TAKING. If there is a Total Taking, then this Lease
will terminate as of the earlier to occur of (i) the date when physical
possession of the Building or the Premises is taken by the condemning authority
or (ii) the date when title vests in the condemning authority.
SECTION 18.02 - PARTIAL TAKING. If there is a Taking of the Premises which
is not a Total Taking, Landlord may terminate this Lease by giving notice to
Tenant within sixty (60) days after receiving notice of the Taking, in which
event this Lease will terminate as of the earlier to occur of (i) the date when
physical possession of such portion of the Premises is taken by the condemning
authority or (ii) the date when title bests in the condemning authority. If this
Lease is not terminated, Basic Rent and, to the extent covered by Landlord's
insurance, Additional Rent, will be abated from the date the Premises are
rendered unfit for occupancy by an amount representing that part of the Basic
Rent properly allocable to the portion of the Premises taken, and Landlord will,
at Landlord's expense, restore the Building and the Premises to substantially
their former condition to the extent that restoration, in Landlord's judgment,
may be feasible. Landlord's restoration work will not exceed the scope of work
done by Landlord in originally finishing the Premises according to the working
drawings and subsequent Improvements made by Tenant under the provisions of
Section 7.02 which are to remain part of the Premises.
SECTION 18.03 -AWARDS AND PROCEEDS. All proceeds payable in respect of a
Taking will be the property of Landlord. Tenant hereby assigns to Landlord all
rights of Tenant in or to such awards and proceeds, provided that Tenant will be
entitled to separately petition the condemning authority for a separate award
for its moving expenses and trade fixtures but only if such a separate award
will not diminish the amount of award or proceeds payable to Landlord.
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ARTICLE 19
Quiet Enjoyment
---------------
SECTION 19.01 - LANDLORD'S COVENANT. Landlord covenants that it has good
title to the Premises, subject to the Permitted Exceptions, and that it has
sufficient authority to enter into this Lease. Landlord also covenants that if
Tenant pays the Rent and performs all of its obligations under this Lease,
subject to the Permitted Exceptions, it will quietly have and enjoy the Premises
during the Lease Term, without interference from Landlord or any Person lawfully
claiming under Landlord or by paramount title.
SECTION 19.02 - SUBORDINATION AND NON-DISTURBANCE. This Lease is
subordinate to any mortgage now or in the future on the Premises and to each
advance made under any such mortgage, and to all renewals, modifications,
consolidations, replacements and extensions of such mortgage. This Section 19.02
is self-operative and no further instrument of subordination is effective,
Landlord will cause the mortgagee to deliver to Tenant a non-disturbance
agreement, binding upon itself and any successor in interest, to the effect that
no foreclosure of the mortgage will disturb the possession of Tenant under this
Lease or its rights with respect to the options provided in Sections 24.01,
24.02 and 24.03 so long as no Event of Default exists. In confirmation of such
subordination, Tenant agrees to execute and deliver promptly any certificate
that Landlord or any mortgagee may request. if any mortgagee succeeds to the
interest of Landlord and agrees to recognize the interest of Tenant under this
Lease, Tenant agrees to attorn to such mortgagee and to recognize such mortgagee
as its landlord.
SECTION 19.03 - NOTICE TO MORTGAGEE. No act or failure to act on the part
of Landlord which would entitle Tenant under the terms of this Lease, or by law,
to be relieved of Tenant's obligations under or to terminate this lease, will
result in a release or termination of such obligations or a termination of this
Lease unless (i) Tenant first gives written notice of Landlord's act or failure
to act to Landlord's first mortgagee of record, if any, specifying the act or
failure to act on the part of Landlord which could or would give basis to
Tenant's rights; and (ii) the mortgagee, after receipt of such notices, fails or
refuses to correct or cure the condition complained of within a reasonable time.
Nothing contained in this Section 19.03 will be deemed to impose any obligation
on any mortgagee to correct or cure any condition. "Reasonable time" means a
period of not less than the same period which Landlord has to cure the condition
but in no event less than ten (10) Business Days and includes (but is not
limited to) a reasonable time to obtain possession of the Building if the
mortgagee elects to do so and a reasonable time to correct or cure the condition
if the condition is determined to exist. Tenant has no obligation to give notice
under this Section 19.03 until the mortgagee has given Tenant notice of its
interest as such and the address to which notices under this Section 19.03 are
to be sent.
SECTION 19.04 - OTHER PROVISIONS REGARDING MORTGAGEES. If this Lease or the
Rent is assigned to a mortgagee as collateral security for any obligation, the
mortgagee
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will not be deemed to have assumed any of Landlord's obligations under
this Lease Solely as a result of the assignment. A mortgagee to whom this Lease
has been assigned will be deemed to have assumed such obligations only if (i) by
the terms of the assignment the mortgagee has (a) foreclosed its mortgage, (b)
accepted a deed in substitution of foreclosure, or (c) taken possession of the
Premises. Even if the mortgagee assumes the obligations of Landlord, the
mortgagee will be liable for breaches of any of Landlord's obligations only to
the extent the breaches occur during the period of ownership by the mortgagee
after foreclosure (or any conveyance by a deed in substitution of foreclosure)
or after entry, and the mortgagee will have no liability for any act or omission
or for any obligations incurred by any prior Landlord, including liability with
respect to any security deposit except to the extent actually received by such
mortgagee.
ARTICLE 20
Defaults: Events of Default
---------------------------
SECTION 20.01 - DEFAULTS. The following will (i) if any requirement for
notice or lapse of time or both has not been met, constitute Defaults, and (ii)
if there are no such requirements or if such requirements have been met,
constitute Events of Default:
(a) The failure of Tenant to pay Rent when due, and the continuation of
such failure for a period of ten (10) days after notice from Landlord;
(b) The failure of Tenant to perform any of its obligations under this
Lease, other than its obligation to pay Rent, and the continuation of such
failure for a period of thirty (30) days after notice from Landlord
specifying in reasonable detail the nature of such failure;
(c) The occurrence with respect to Tenant of one or more of the following
events: the death, dissolution, termination of existence (other than by
merger or consolidation), insolvency, appointment of a receiver for all or
substantially all of its property, the making of a fraudulent conveyance or
the execution of an assignment or trust mortgage for the benefit of
creditors by it, or the filing of a petition of bankruptcy or the
commencement of any proceedings by or against it under a bankruptcy,
insolvency or other law relating to the relief or the adjustment or
indebtedness, rehabilitation or reorganization of debtors; provided that if
such petition or commencement is involuntarily made against it and is
dismissed within sixty (60) days of the date of such filing or
commencement, such events will not constitute an Event of Default;
(d) The issuance of any execution or attachment against Tenant or any other
occupant of the Premises as a result of which the Premises are taken or
occupied by a Person other than Tenant; and
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(e) he cancellation of, refusal to review or denial of liability under the
insurance with respect to the Premises as a result of the Premises being
unoccupied.
SECTION 20.02 - TENANT'S BEST EFFORTS. If the Default of which Landlord
gives notice is of such a nature that it cannot be cured within thirty (30)
days, then the Default will not be deemed to continue so long as Tenant, after
receiving notice of the Default, begins to cure the Default as soon as
reasonably possible and continues to take all steps necessary to complete the
curing of the Default within a period of time which, under all prevailing
circumstances, is reasonable. No Default will be deemed to continue so long as
Tenant is acting to cure the Default in good faith or is delayed in or prevented
from curing the Default by reason of Unavoidable Delays.
SECTION 20.03 - ELIMINATION OF DEFAULT. If any Default is cured as provided
in this Lease, the Default will be deemed never to have occurred and Tenant's
rights under this Lease will continue unaffected by the Default.
ARTICLE 21
Landlord's Remedies: Damages on Default
---------------------------------------
SECTION 21.01 - LANDLORD'S REMEDIES. Landlord may, at its option, whenever
an Event of Default exists, give Tenant a notice terminating this lease on a
date specified in the notice, which date will be not less than three (3)
Business Days after the date of receipt by Tenant of the notice. On the date
specified in the notice, this Lease and all rights of Tenant under this Lease
will end without further notice or lapse of time, but Tenant will continue to be
liable to Landlord as provided in this Article 21.
SECTION 21.02 - POSSESSION. Upon any termination of this Lease as the
results of an Event of Default, Tenant agrees to leave the Premises peacefully
and surrender possession to Landlord as provided in Section 9.07. Landlord may,
at any time after any termination of this Lease and without further notice,
enter the Premises and recover possession by summary proceedings or any other
manner permitted by law, and may remove Tenant and all other Persons and
property from the Premises and may hold the Premises and the right to receive
all rental income from the Premises.
SECTION 21.03 - RIGHT TO RELET. At any time after termination of this Lease
as a result of an Event of Default, Landlord may relet all or any part of the
Premises in the name of Landlord or otherwise, for such term (which may be
greater or less than the period which would otherwise have constituted the
balance of the Lease Term) and on such conditions (which may include concessions
or free rent) as Landlord, in its reasonable discretion, may determine. Landlord
will not be liable for failure to relet the Premises or for failure to collect
any rent due upon any such reletting.
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SECTION 21.04 - SURVIVAL OF COVENANTS. ETC. If this Lease is terminated as
provided in Section 21.01:
(a) The termination will not relieve Tenant of its obligations under this
lease which obligations will survive the termination. Tenant agrees to
indemnify Landlord against all claims, losses and expenses arising out of
the termination.
( b) At the time of the termination, Tenant agrees to pay to Landlord the
Rent up to the date of termination. Tenant also agrees to pay to Landlord,
on demand, as liquidated damages for Tenant's Default, the difference
between
(1) the total Rent that would have been payable under this Lease by
Tenant from the date of the termination until the Stated Expiration
Date, LESS
(2) the fair and reasonable rental value of the Premises for the same
period reduced by landlord'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 and expenses of cleaning the
Premises in preparation for such reletting.
(3) If all or any part of the Premises are relet by Landlord for any
portion of the unexpired Lease Term, before presentation of proof of
such liquidated damages to any court, commission or tribunal, the
amount of rent reserved upon the reletting will be, prima facie, the
fair and reasonable rental value for the part or the whole of the
Premises relet during the term of the reletting.
(4) Nothing contained in this Section 21.04 will limit or prejudice
the right of Landlord to prove and obtain as liquidated damages by
reason of the 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 is greater, equal to, or less than the amount of the
difference referred to in clause (b) above.
SECTION 21.05 - RIGHT TO EQUITABLE RELIEF. If a Default occurs, Landlord
will be entitled to enjoin the Default and may invoke any remedy allowed at law
or in equity or by statue or otherwise as through re-entry, summary proceedings
and other remedies were not provided for in this Lease.
SECTION 21.06 - RIGHT TO SELF HELP: INTEREST ON OVERDUE RENT. Landlord has
the right, but not the obligation, to enter the Premises and to perform any
obligation of Tenant under this Lease notwithstanding the fact that no specific
provision for such substituted
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performance by Landlord is made in this Lease. In performing such obligation,
Landlord may make any payment of money or perform any other act. The total of
(i) all sums paid by Landlord (ii) interest (at the rate of twelve percent (12%)
a year) on such sums plus all Rent not paid when due and (iii) all expenses in
connection with the performance of the obligation by Landlord, will be deemed to
be Rent under this lease and payable to Landlord on demand. Landlord may
exercise the foregoing rights without waiving any other of its rights or
releasing Tenant from any of its obligations under this lease. If Landlord fails
to perform any of its obligations as provided in this Lease, and the failure
continues for a period of thirty (30) days after notice from Tenant, Tenant may
perform those obligations specified in the notice, and Landlord agrees to
reimburse Tenant for any costs incurred by Tenant in performing those
obligations together with interest at the rate of twelve (12%) a year.
ARTICLE 22
Notices
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SECTION 22.01 - NOTICES AND COMMUNICATIONS. All notices, demands, requests
and other communications provided for or permitted under this Lease must be in
writing, either delivered by hand or by courier or sent by overnight mail or by
first-class mail, postage prepaid, to the following addresses:
(a) if to Landlord, at the address stated in Section 1.01 (or at such ether
address as Landlord designates in writing to Tenant), with a copy to such
Persons as Landlord designates in writing to Tenant, or
(b) if to Tenant, at the address stated in Section 1.01 (or at such other
address as Tenant designates in writing to Landlord), with a copy to such
Persons as Tenant designates in writing to Landlord.
Any communication provided for in this Lease will become effective only
upon receipt by the Person to whom it is given, unless mailed by overnight mail
or by first-class, registered or certified mail, in which case it will be deemed
to be received on (i) the third Business Day after being mailed or (ii) the day
of its receipt, if a Business Day, or the next succeeding Business Day,
whichever of (i) or (ii) is the earlier.
ARTICLE 23
Waivers
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SECTION 23.01 - NO WAIVERS. Failure of Landlord or Tenant to complain of
any act or omission on the part of the other no matter how long the act or
omission may continue, will not be deemed to be a waiver by either Landlord or
Tenant of any of its rights, expressed or implied, of the breach of any
provisions this Lease will be deemed a waiver of a breach of any other provision
of this lease or a consent to any subsequent breach of
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the same or any other provision. No acceptance by Landlord of any partial
payment will constitute an accord or satisfaction but will only be deemed a
partial payment on account. None of Tenant's obligations under this Lease and no
Default or Event of Default may be waived or modified except in writing by
Landlord.
ARTICLE 24
Options
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SECTION 24.01 - OPTIONS TO EXTEND. Tenant has the option to extend the
Lease Term for one (1) additional period of three (3) years by giving Landlord
notice of its exercise at least twelve (12) months before the expiration of the
then current Lease Term. During each of the three years of the extended Lease
Term Tenant shall pay to Landlord Basic Rent equal to $169,844.40 each Lease
Year or $14,153.70 each month, plus Additional Rent as described in Exhibit B of
this Lease.
SECTION 24.02 - OPTIONS TO TERMINATE LEASE. Tenant and Landlord each have
the option to terminate this Lease by giving the other notice of its exercise of
the option not less than six (6) months prior to the effective date of such
termination. The Tenant shall have no obligation to pay any termination fees or
other compensation in connection with a termination under this Section 24.02.
Tenant shall have no obligation to pay Basic or Additional Rent after the
effective date of such termination and shall have no obligation to pay any
termination fees or other compensation in connection with a termination under
this Section 24.02
ARTICLE 25
General Provisions
------------------
SECTION 25.01 - UNAVOIDABLE DELAYS. If Landlord or Tenant is delayed,
hindered in or prevented from the performance of any act required under this
Lease by reason of Unavoidable Delays, then performance of the act will be
excused for the period of the delay and the period for the performance of the
act will be extended for a period equivalent to the period of the delay.
SECTION 25.02 - ESTOPPEL CERTIFICATES. Tenant agrees to deliver to Landlord
within ten (10) Business Days after the Term Commencement Date an estoppel
certificate substantially in the form of Exhibit E.
SECTION 25.03 - HOLDING OVER. If Tenant occupies the Premises after the
Lease Termination Date without having entered into a new lease of the Premises
with Landlord, Tenant will be a tenant-at-sufferance only, subject to all of the
terms and provisions of this Lease at one hundred fifty percent (150%) the then
effective Basic Rent. Such a holding over, even if with the consent of Landlord,
will not constitute an extension or renewal of this Lease.
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SECTION 25.04 - GOVERNING LAW. This Lease and the performance of its
provisions will be governed and construed under the laws of the Commonwealth of
Massachusetts.
SECTION 25.05 - PARTIAL INVALIDITY. If any provisions of this Lease of its
application to any Person or circumstances is held to be invalid or
unenforceable, the remainder of this Lease, or the application of the provision
to Persons or circumstances other than those as to which it is held invalid or
unenforceable, will not be affected, and each provision of this Lease will be
enforced to the fullest extent permitted by law.
SECTION 25.06 - NOTICE OF LEASE. The parties will at any time, at the
request of either one, promptly execute duplicate original of a statutory notice
of lease, in recordable form, setting forth a description of the Premises, the
Lease Term and any other terms of this Lease, excepting the rental provisions,
as may be required by law or as either party may request.
SECTION 25.07 - INTERPRETATION. The section headings used in this Lease are
for reference and convenience only, and do not enter into the interpretation of
this Lease. This Lease may be signed in several counterparts, each of which is
an original, but all of which constitute a single instrument. The term
"Landlord" means only the owner at the time of the Premises. Upon any sale of
the Premises or assignment (other than as collateral security for an obligation)
of the interest of Landlord in this Lease, Landlord will be relieved of all
liability under this Lease and its successor in interest and/or assign will be
deemed to be Landlord so long as it owns the Building. The liability of Landlord
under this Lease is limited to Landlord's interest in the Premises, and no
individual officer, trustee or member will have any liability to Tenant or any
other Person on account of this Lease.
SECTION 25.08 - CONSENTS. Consents or approvals required or requested of
either Landlord or Tenant shall not be unreasonably withheld or delayed.
SECTION 25.09 - ENTIRE AGREEMENT: CHANGES. All prior agreements, related to
real estate, between the parties are merged within this Lease, which alone fully
states the entire understanding and agreement of the parties. This Lease does
not affect or alter prior research and service agreements between the parties.
This Lease may not be changed or terminated orally or in any manner other than
by an agreement in writing and signed by the party against whom enforcement of
the change or termination is sought.
SECTION 25.10 - BINDING EFFECT. The provisions of this Lease are binding on
and inure to the benefit of Landlord, its successors and assigns, and Tenant,
its successors and assigns and any Person claiming under Tenant.
SECTION 25.11 - TIME OF THE ESSENCE. Any provision of law or equity to the
contrary notwithstanding, it is agreed that time is of the essence of this
Lease.
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SECTION 25.12 - BROKERS. Landlord and Tenant represent and warrant each to
the other that it has dealt with no brokers or agents with respect to this Lease
in any manner which would give rise to any claim for a commission.
SECTION 25.13 - NO HIRING AWAY. Tenant agrees that it will not actively
solicit any of Landlord's employees to be full-time employees of Tenant without
Landlord's prior consent.
EXECUTED as a sealed instrument as of the Date of Lease specified in
Section 1.01.
LANDLORD:
Tufts University
By: /s/ Xxxxxxx Xxxxx
--------------------------------
Name: Xxxxxxx Xxxxx
Title: Executive Vice President
TENANT:
X. X. Xxxxx & Company - Conn.
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President- Comm. Dev.
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EXHIBIT B
RENT RIDER
This Rent Rider is attached to an incorporated by reference into a Lease (the
"Lease") of the Premises known as Swine Unit II on the Campus of Tufts
University School of Veterinary Medicine at 000 Xxxxxxxx Xxxx, Xxxxx Xxxxxxx,
Xxxxxxxxxxxxx between Tufts University ("Landlord") and X. X. Xxxxx & Company --
Conn. ("Tenant"). Terms not other wise defined have the same meanings in this
Rent Rider as in the Lease.
1) BASIC RENT. Basic Rent for each Lease Year of the original Lease Term is as
follows:
A. Building rent $131,400 each Lease Year
$ 11,200 monthly installment
B. Building services: $ 20,004 each Lease Year
200 hours of repairs & $ 1,667 monthly installment
maintenance; real estate
taxes, trash pickup, pest
control, snow removal and
landscaping
C. Total Basic Rent $154,404 each Lease Year
$ 12,867 monthly installment
2) ADDITIONAL RENT.
Reimbursement of Operating Expenses
* effluent removal from storage tank billed monthly
* electricity, metered, at the then current rate, billed monthly
* water, metered, at the then current rate, billed monthly
* sewer, prorated, at then current rate, billed monthly
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EXHIBIT E
ESTOPPEL CERTIFICATE
--------------------
, 1995
Gentlemen:
Reference is made to the Lease dated , 19 , from
, as Landlord, to , as Tenant, with
respect to the Premises located at , Massachusetts (the "Lease"). Terms used in
this Certificate which are defined in or by reference to the Lease have the same
meanings in this Certificate as in the Lease.
The undersigned hereby ratifies the Lease and certifies that:
1. The term Commencement Date is
2. The Stated Expiration Date is
3. The premises are presently occupied by
4. Basic Rent is currently payable at the rate of $ per year.
5. Basic rent has been paid through , 19 .
6. Additional Rent for Taxes and Operating Expenses has been paid through
, 19 .
7. The Lease is in full force and effect and has not been assigned,
modified, supplemented or amended in any way (except by agreement(s)
dated ) and represents the entire agreement between Landlord and
Tenant.
8. No Default or Event has been asserted by either party to the Lease
and, to the knowledge of the undersigned, no Default or Event of
Default exists on the part of either party to the Lease except
).
9. On this date, to the knowledge of the undersigned, there are no
existing defenses or offsets which Tenant has against the enforcement
of the Lease by Landlord (except ).
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10. No Rent has been paid in advance of its due date under the Lease.
Very truly yours,
-----------------------------
By: (Title)
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