Exhibit 10.30
11.2.98
LEASE AGREEMENT
THIS LEASE made and entered into as of this 10 day of November, 1998, by
and between 205 ALEWIFE LIMITED PARTNERSHIP, a Massachusetts limited partnership
("Landlord"), and TRANSKARYOTIC THERAPIES, INC., a Massachusetts corporation
("Tenant").
WITNESSETH
WHEREAS, Landlord is the owner of certain land and a building located at
000 Xxxxxxx Xxxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx more particularly described
in Exhibit A (the "Premises" or the "Leased Premises"); and
WHEREAS, Landlord and a related additional party ("Additional Party") are
the owners of certain parking facilities more particularly described in Exhibit
B attached hereto, which parking facilities are included in the Premises demised
hereunder; and
WHEREAS, Tenant desires to lease from Landlord such land, building and
improvements located thereon, and to lease from Landlord and the Additional
Party the parking facilities more particularly described in Exhibit B, subject
to the terms and conditions hereinafter stated.
NOW, THEREFORE, in consideration of the mutual covenants herein set forth,
Landlord and Tenant do hereby agree to the terms and conditions set forth in
this Lease.
ARTICLE I.
REFERENCE DATA
1.1 Definitions. Each reference in this Lease to any of the following
subjects shall be construed to incorporate the date stated for that subject in
this Article.
ANNUAL
FIXED RENT: From and after the Rent Commencement Date, (a) during
the first through the sixth month thereafter,
$20,000.00 per month; (b) from and after the seven (7)
month following the Rent Commencement Date and through
out the Term, $30,115.00 monthly (from and after the
second year of the Term, $361,380.00 annually).
COMMENCEMENT
DATE: The date of execution of this Lease.
RENT
COMMENCEMENT
DATE: Annual Fixed Rent shall commence on the earlier of (a)
the nineth month following the Commencement Date or (b)
the date on which Tenant occupies the Premises for the
Permitted Uses hereunder and its tenant improvements
are completed (provided that such occupancy shall not
be deemed to have occurred during the period in which
Tenant is installing its improvements, equipment and
furnishings in the Premises).
LAND: A parcel of land known as 000 Xxxxxxx Xxxxx Xxxxxxx,
Xxxxxxxxx, Xxxxxxxxxxxxx, as more particularly
described in Exhibit A.
LANDLORD'S
ORIGINAL
ADDRESS: 000 Xxxxxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxx, XX
LEASE YEAR: Any period of one year during the Term commencing on
the Commencement Date or on any anniversary thereof.
PERMITTED
USES: Any office, laboratory, manufacturing, biotechnology or
accessory use permitted under the Cambridge Zoning
By-Law.
PREMISES: The Land with the building and parking facilities
thereon described in Exhibit A, together with the
parking facilities described in Exhibit B
TENANT'S
ADDRESS: 000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
TERM: The term of this Lease shall be ten (10) years,
commencing on the Commencement Date. Tenant has three
(3) additional renewal periods of five (5) years each
at Fair Market Rent (see Exhibit C).
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1.2 Exhibits: There are incorporated as part of this Lease the following
Exhibits:
Exhibit A - Legal Description of the Land
Exhibit B - Parking Facilities
Exhibit C - Options to Extend
Exhibit D - Tenant Improvements
Exhibit D-1 Improvements Removable by Tenant
ARTICLE II.
PREMISES, TERM AND RENT
2.1 Demising. Landlord hereby demises and leases to Tenant, and Tenant
hereby hires from Landlord, for the Term, the Premises, as is.
2.2 Term. Tenant shall have and hold the Premises for a period commencing
on the date of execution of this Lease and continuing for the Term unless sooner
terminated as provided in this Lease.
2.3 Annual Fixed Rent. Tenant shall pay, without notice or demand, monthly
installments of the Annual Fixed Rent in advance for each full calendar month of
the Term and shall pay in advance the corresponding fraction of said monthly
installment at the beginning or end of the Term in the amounts set forth in
Section 1.1.
2.4 Immediate Access. From and after the date of execution of this Lease,
Tenant shall be permitted access to the Premises to install the tenant
improvements described in Exhibit D, and its equipment, fixtures, and
furnishings, but such entry by Tenant prior to the Rent Commencement Date shall
be subject to and upon all of the terms, conditions and agreements contained in
this Lease except that Tenant shall not be obligated to pay Annual Fixed Rent.
ARTICLE III.
ADDITIONAL RENT
3.1 Tax Expenses. During the Term, Tenant shall pay directly to the City
of Cambridge, as Additional Rent, the Tax Expenses (as such term is hereinafter
defined) in accordance with this Section 3.1. The terms used in this Section
3.1. are defined as follows:
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(a) "Tax Year" means the 12-month period beginning July 1 of each
year, or if the appropriate governmental tax fiscal period shall begin on any
date other than July 1, such other date.
(b) "Tax Expenses" with respect to any Tax Year means the aggregate
Real Estate Taxes on the Property with respect to that Tax Year, reduced by any
abatement receipts with respect to that Tax Year.
(c) "Real Estate Taxes" means all taxes and special assessments of
every kind and nature assessed by any governmental authority on the Premises
which Landlord shall be obligated to pay in connection with the ownership,
leasing or operation of the Premises, and reasonable expenses of any proceedings
for abatement of such taxes including appeals thereof. The amount of special
assessments to be included shall be limited to the amount of the installment
paid in any Tax Year (plus any interest thereon) of such special assessment
which shall be payable over the longest period permitted by law. There shall be
excluded from such taxes all income, estate, succession, inheritance, excess
profit, franchise and transfer taxes.
Payments by Tenant on account of Tax Expenses shall be made prior to the
date when due. Tenant shall furnish a copy of evidence of such payment to
Landlord upon request therefor. For any tax xxxx covering a period only
partially occurring during the Term, Tenant shall pay a pro rata portion of the
taxes shown on that xxxx, which portion shall be based on the number of days in
the tax period for which the xxxx applies that occur during the term. Landlord
hereby represents and warrants to Tenant that all Tax Expenses in respect of the
Premises have been paid in full through the first and second quarters of fiscal
year 1999, and that the Premises constitute a separate parcel for real estate
tax assessment purposes. If the first and second quarters of fiscal year 1999
have not been paid, or if Landlord fails to timely pay all Tax Expenses for the
Premises through the Commencement Date, Tenant may make payment of the same and
deduct such payments from the Rent payable under this Lease.
If Landlord elects not to initiate proceedings to contest the amount of
Real Estate Taxes for any Tax Year, Tenant may, at Tenant's expense, bring
appropriate proceedings to contest the amount of the Real Estate Taxes. Landlord
shall cooperate with Tenant in any such proceedings so far as reasonably
necessary. If, as the result of any such contest or review, the Real Estate
Taxes shall be reduced for any Tax Year, the Tax Expenses for that Tax Year
shall be reduced by an amount equal to the reduction in Real Estate Taxes for
such Tax Year less Landlord's reasonable expenses, if any, incurred in
connection with obtaining that reduction. If at the time the Real Estate Taxes
are reduced Tenant has made payments for Tax Expenses in excess of the actual
Tax Expenses due for that Tax Year, the Landlord shall refund such
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overpayment to Tenant. In the event Tenant initiates abatement proceedings,
Tenant shall make such payments on account of Tax Expenses as may be required by
law.
3.2 Utilities and Other Services. During the Term, Tenant shall pay
directly to the provider of the service all charges for steam, heat,
air-conditioning, gas, electricity, telephone, janitorial service, fuel, and
trash removal and all other services and utilities furnished directly to the
Premises. Landlord hereby represents and warrants to Tenant that all water,
sewer and other municipal charges in respect of the Premises have been paid in
full through the date of execution of this Lease. If said charges have not been
paid, Tenant may make payment of the same and deduct such payments from the Rent
payable under this Lease. Tenant hereby covenants and agrees that Tenant shall
maintain the exterior of the Premises in good order and condition consistent
with a quality commercial property, including landscaping, exterior cleaning and
snow removal.
3.3 Net Lease. It is the intent of the parties that the Annual Fixed Rent
be net to the Landlord. Accordingly, Tenant shall pay directly the expenses of
the Leased Premises as defined pursuant to the term of this Lease Agreement
(e.g., taxes, insurance, maintenance and operating expenses) during the term of
this Lease.
ARTICLE IV.
TENANT'S ALTERATIONS
4.1 Except as permitted hereunder, Tenant shall not make alterations and
additions to the Premises except in accordance with plans and specifications
therefor first approved by Landlord, which approval shall not be unreasonably
withheld or delayed and which shall be requested in writing. Landlord shall not
be deemed unreasonable for withholding approval of any alterations or additions
which (a) involve or might adversely affect any structural or exterior element
of the Building, or any area or element outside of the Premises, or (b) will
require unusual expense to re-adapt the Premises to the current use of any
portion of the Premises upon the Lease termination or expiration unless Tenant
first gives assurance acceptable to Landlord that such re-adaptation will be
made prior to such termination or expiration without expense to Landlord.
Notwithstanding the foregoing, the consent of Landlord shall not be required for
(a) the tenant improvements described in Exhibit D, (b) non-structural
alterations, and (c) painting, carpet, and other cosmetic improvements. Except
as set forth in Exhibit D-1 and as may otherwise be agreed by Landlord and
Tenant, all alterations and additions shall become part of the Building and
shall become the property of Landlord upon termination. Tenant shall have no
obligation to remove the tenant improvements described in Exhibit D upon the
expiration of the Term.
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4.2 Construction Standard. All construction work permitted or required by
this Lease shall be done in a good and workmanlike manner and in compliance with
all applicable laws and all lawful ordinances, regulations and orders of
Governmental authority and insurers of the Building.
4.3 Alteration Requirements. Landlord may (but without any implied
obligation to do so) inspect any construction work of Tenant under this Lease at
reasonable times and upon reasonable prior notice to Tenant. Any such entry
shall be subject to Tenant's security precautions for personal safety and the
confidentiality of its business activities. All of Tenant's work shall be
performed by appropriately licensed contractors. Tenant, before its work is
started, shall secure all permits necessary therefor; deliver to Landlord a
statement of the names of all its contractors; and shall cause each contractor
to carry xxxxxxx'x compensation insurance and comprehensive general public
liability insurance in commercially reasonable amounts insuring Landlord and
Tenant as well as the contractors, and deliver to Landlord certificates of all
such insurance. Tenant agrees to pay promptly when due the entire cost of any
work done 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 therewith to attach to the Premises and promptly to discharge any
such liens which may so attach.
ARTICLE V.
CONDITION OF THE PREMISES SURRENDER: HOLDING OVER
5.1 Maintenance and Repair. Tenant will be responsible to provide that the
Leased Premises shall have adequate electrical, plumbing, heating, ventilation
and air conditioning systems and related fixtures of such systems as herein
provided, which shall be in good order and condition. Tenant will be responsible
for the repairs required to the electrical, plumbing, heating, ventilation, air
conditioning systems and related fixtures of such systems, and for all necessary
maintenance, repairs, alterations and replacements to such systems and related
fixtures, irrespective of the cost thereof. Tenant will also be responsible for
cleaning and maintaining the Leased Premises, including the redecorating of any
interior surfaces and the installation of any replacement floor coverings which
Tenant desires. The structural repairs for which Tenant is responsible include
repairs to the roof of the Building, the slab floor foundation, and utility
systems. Tenant is responsible for the exterior of the building.
If maintenance or repairs are required to be done or made by Tenant
pursuant to the terms hereof, Landlord may demand that Tenant do or make the
same forthwith, and, if Tenant refuses or neglects or commence such repairs and
complete the same with reasonable dispatch after such demand, Landlord may (but
shall not be required to do so) make or cause such repairs to be made and shall
not be
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responsible to Tenant for any loss or damage that may accrue to Tenant's
property or business by reason thereof. If Landlord makes or causes such repairs
to be made, Tenant agrees that Tenant will forthwith on demand pay to Landlord
the cost thereof as Additional Rent. In the event that any capital repairs or
replacements to the roof, slab, structure or major base building systems
performed by Tenant hereunder (except for Tenant's initial improvements, as
described in Exhibit D, and except for any capital items unique to Tenant's
research and manufacturing activities, which shall be Tenant's sole
responsibility) have a useful life (determined in accordance with generally
accepted accounting principles on a straight-line basis) which would extend
beyond the Term hereof, Tenant shall be obligated to perform such work only upon
the payment by Landlord to Tenant of the cost of that portion of the work so
allocated to the period beyond the expiration of the Term hereof. For the
purposes of the foregoing sentence only, the Term shall be deemed to include the
initial ten-year term and the three (3) five-year option periods thereafter,
whether or not exercised by Tenant. If Landlord fails to make such payment
within thirty (30) days of written request therefor, Tenant may undertake such
repair or replacement and deduct Landlord's share of the cost thereof from the
payment of Annual Fixed Rent hereunder. Landlord shall have the right to approve
any repair or replacement as to which Landlord is obligated to contribute
hereunder, which approval shall not be unreasonably withheld or delayed.
5.2 Entry by Landlord. Landlord may enter the Premises for the purpose of
inspecting the same upon reasonable prior notice to Tenant, provided that any
such entry shall be subject to Tenant's security precautions for personal safety
and the confidentiality of its business activities. Landlord shall use
reasonable efforts to minimize interference with Tenant's activities in the
Premises. In no event shall Landlord enter the Premises for the purpose of
marketing the same, nor shall Landlord install any signs for such purpose, until
the last six (6) months of the Term. In case Landlord is prevented or delayed
from performing any covenant, obligation or duty to be performed on Landlord's
part by reason of any external cause, Landlord shall not be liable to Tenant
therefor. If Tenant fails to surrender the Premises to Landlord upon the
expiration of the Term as provided hereunder, Tenant shall be liable to Landlord
for rent at the rate of 150% of the fixed rent payable hereunder until Tenant
vacates the Premises.
5.3 Surrender. Tenant shall surrender the Premises and all alterations and
additions thereto as hereinabove provided, at the end or earlier termination of
the Term, in the condition described in Section 5.1, first removing all goods
and effects of Tenant and repairing any damage caused by such removal and
restoring the Premises and leaving them clean and neat. Without limiting the
generality of the foregoing, and except as set forth in Exhibit D-1 or as may be
otherwise agreed by Landlord and Tenant, Tenant shall not remove from the
Premises any laboratory fixture, including, without limitation, fixed laboratory
fixtures, laboratory benches, fume hoods, benches and alterations made to bring
the Premises into compliance with the
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Massachusetts Building Code. Tenant waives all claims against Landlord for any
damage to Tenant resulting from Landlord's retention or disposition of any
alterations or additions or Tenant's personal property remaining on the Premises
on expiration or earlier termination of the Term. Tenant shall be liable to
Landlord for Landlord's cost for storing, removing, and disposing of any
alterations or Tenant's personal property.
5.4 Holding Over. If Tenant, with Landlord's consent, remains in
possession of the Premises after expiration or earlier termination of the Term,
such possession by the Tenant shall be deemed to be a month-to-month tenancy
terminable on thirty days' notice given at any time by either party. During any
such month-to-month tenancy, Tenant shall pay all rent and other sums required
by this Lease, and all provisions of this Lease except those pertaining to Term
shall apply to the month-to-month tenancy.
ARTICLE VI.
TENANT COVENANTS
Tenant covenants during the Term and for such further time as Tenant
occupies any part of the Premises:
6.1 Payment of Rent. To pay when due all Annual Fixed Rent and Additional
Rent, all charges for utility services rendered to the Premises, and all other
monies required to be paid by Tenant pursuant to this Lease.
6.2 Use. Continuously from the Commencement Date to the end of the Term,
to use and occupy the Premises for the Permitted Uses only, and not to use or
devote the Premises or any part thereof for any purpose which is contrary to law
or ordinance or liable to invalidate any insurance on the Building or its
contents.
Tenant shall comply with all applicable laws, statutes and regulations,
including all environmental laws, Federal and State, including M.G.L. 21E,
applicable to the conduct by Tenant of the Permitted Uses in the Premises, and
shall indemnify and hold harmless Landlord from all claims, loss or damage
arising from any violation thereof by Tenant. Landlord hereby agrees to
indemnify and hold Tenant harmless from any liability arising under all
environmental laws, Federal and State, including M.G.L. 21E, occasioned by the
existing environmental condition of the Premises, except to the extent disclosed
by the environmental report prepared by MacPhail Associates dated November 2,
1998, a copy of which has been provided by Tenant to Landlord (Tenant hereby
acknowledging its acceptance of the matters set forth in said report).
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6.3 Compliance with Law. To comply with all federal, state and local laws,
regulations, ordinances, executive orders and similar requirements in effect
from time to time during the Term, including, without limitations, at Tenant's
cost to alter, maintain or restore the Premises to comply with the same, and to
keep the Premises equipped with all safety appliances required by law or
ordinance or any other regulations of any public authority and to procure all
licenses and permits required for the Premises or Tenant's use thereof, it being
understood that any foregoing provisions shall not be construed to broaden in
any way the Permitted Uses. In the event that any capital repairs or
replacements to the Premises required in order to bring the Premises into such
legal compliance (except for Tenant's initial improvements, as described in
Exhibit D, and except for any capital items unique to Tenant's research and
manufacturing activities, which shall be Tenant's sole responsibility) have a
useful life (determined in accordance with generally accepted accounting
principles on a straight-line basis) which would extend beyond the Term hereof,
Tenant shall be obligated to perform such work only upon the payment by Landlord
to Tenant of the cost of that portion of the work so allocated to the period
beyond the expiration of the Term hereof. For the purposes of the foregoing
sentence only, the Term shall be deemed to include the initial ten-year term and
all three (3) five-year option periods thereafter, whether or not exercised by
Tenant. If Landlord fails to make such payment within thirty (30) days of
written request therefor, Tenant may undertake such repair or replacement, and
deduct Landlord's share of the cost thereof from the payment of Annual Fixed
Rent hereunder. Landlord shall have the right to approve any repair or
replacement as to which Landlord is obligated to contribute hereunder, which
approval shall not be unreasonably withheld or delayed.
6.4 Permitted Entry. To permit Landlord and its agents, after reasonable
notice except in the case of emergencies, to enter the Premises at all
reasonable hours for the purpose of inspecting, testing, or of making repairs to
the same, to show the Premises to prospective purchasers and mortgagees at all
reasonable times, and to show the Premises to prospective tenants during the
last six (6) months of the Term. Any such entry shall be subject to Tenant's
security precautions for personal safety and the confidentiality of its business
activities. Landlord shall use reasonable efforts to minimize interference with
Tenant's activities in the Premises.
6.5 Overloading. Not to place a load upon any floor in the Premises
exceeding the floor load per square foot of area which such floor was designed
to carry and which is allowed by law.
6.6 Personal Property Taxes. To pay promptly when due all taxes which may
be imposed upon personal property (including, without limitation, fixtures and
equipment) in the Premises.
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6.7 Attorneys' Fees. As Additional Rent, to pay all reasonable costs,
counsel and other fees incurred by Landlord in connection with the successful
enforcement by Landlord of any obligations of Tenant under this Lease.
6.8 Assignment and Subletting. Except as otherwise provided in this
Section 6.8, not to assign, mortgage, pledge, hypothecate or otherwise transfer
this Lease, or sublet (which term, without limitation, shall include granting of
concessions, licensees and the like) the whole or any part of the Premises
without, in each instance, having first received the consent of Landlord, which
consent shall not be unreasonably withheld, delayed or conditioned. Any
assignment or sublease made without such consent shall be void, and in any case
where Landlord consents to such assignment or subletting, Tenant shall remain
fully and primarily liable for the obligations of the tenant hereunder,
including, without limitation, the obligation to pay Annual Fixed Rent and
Additional Rent as provided under this Lease. In the event that Landlord fails
to respond to Tenant's written request for consent to assign or sublet hereunder
within twenty (20) days, such request shall be deemed given by Landlord and
Tenant may rely thereon.
Landlord's prior consent shall not be required for an assignment or
sublease to any entity controlling, controlled by, or under common control with
Tenant, or, provided the net worth of the surviving entity is equal to or
greater than the net worth of Tenant on the date of assignment, in connection
with any merger, consolidation or reorganization of Tenant, or sale of all or
substantially all of the assets thereof.
Tenant shall give Landlord prior notice of any proposed sublease or
assignment as to which consent is required hereunder, specifying the provisions
of the proposed subletting or assignment, including (i) the name and address of
the proposed subtenant or assignee, (ii) a copy of the proposed subtenant's or
assignee's most recent annual financial statement, and (iii) all of the terms
and provisions upon which the proposed subletting or assignment is to be made.
Except in the case of a sublease or an assignment pursuant to the second
paragraph of this Section 6.8, Tenant shall pay to Landlord as Additional Rent
fifty percent (50%) of any amount Tenant received from any subtenant or assignee
as rent, additional rent or other form of compensation or reimbursement in
excess of the Annual Fixed Rent, Additional Rent and other monies otherwise due
to Landlord pursuant to this Lease (allocable in the case of a sublease to that
portion of the Premises being subleased), following the recovery by Tenant of
(a) any reasonable expenses incurred and paid by Tenant in connection with such
sublease or assignment such as brokerage commissions, fees for legal services,
and expenses of preparing the Premises for occupancy by such subtenant or
assignee, and (b) the unamortized cost of the improvements installed by Tenant
in the Premises for its Permitted Uses.
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If this Lease is assigned, or if the Premises or any part thereof is
sublet or occupied by anyone other than Tenant, Landlord may, upon the
occurrence of an event of default thereunder, collect rent and other charges
from the assignee, sublessee or occupant and shall apply the amount collected to
the rent and other charges herein reserved, but no such assignment, subletting,
occupancy or collection shall be deemed a waiver of the prohibitions contained
in this Section 6.8, or the acceptance of the assignee, sublessee or occupant as
a tenant, or a release of Tenant from the further performance by Tenant of
covenants herein contained to be performed by Tenant. The consent by Landlord to
an assignment or subletting shall not be construed to relieve Tenant from
obtaining the express consent in writing of Landlord to any further assignment
or subletting to the extent required hereunder. No assignment, subletting or use
of the Premises by a subsidiary or controlling entity of Tenant or by any other
third party shall affect the Permitted Uses as set forth in Section 1.1 hereof.
ARTICLE VII.
INDEMNITY AND INSURANCE
7.1 Indemnity. To the maximum extent this agreement may be made effective
according to law, each party agrees to defend, save harmless, and indemnify the
other party from any liability or injury, loss, accident or damage to any person
or property, and from any claims actions, proceedings, and expenses and costs in
connection therewith (including without limitation reasonable counsel fees), (i)
arising from the omission, fault, willful act, negligence or other misconduct of
such party, its contractors, agents, employees or invitee, or from any use made
or thing done or occurring on the Premises during the term or during Tenant's
possession of any part of the Premises not due to the omission, fault, willful
act, negligence or other misconduct of the other party, its contractors, agents,
employees or invitees, or failure to perform its obligations hereunder, or (ii)
resulting from the failure of such party to perform and discharge its covenants
and obligations under this Lease, including, without limitation, the violation
of any environmental law or other governmental requirement. This indemnity and
hold harmless agreement shall include indemnity against all costs, expenses and
liabilities incurred in connection with any such claim or proceedings brought
thereon, and the defense thereof.
7.2 Tenant's Insurance. Tenant agrees to maintain in full force from the
date upon which a Tenant first enters the Premises for any reason, throughout
the Term, and thereafter, so long as Tenant is in occupancy of any part of the
Premises, a policy of comprehensive general liability insurance under which
Landlord and Tenant are named as insureds, and under which the insurer provides
a contractual liability endorsement insuring against all cost, expense and
liability arising out of or based upon any and all claims, accidents, injuries
and damages described in Section 7.1, in
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the broadest form of such coverage from time to time available. Each such policy
shall be non-cancellable and non-amendable (to the extent that any proposed
amendment reduces the limits or the scope of the insurance required in this
Lease) with respect to Landlord without thirty (30) days prior notice to
Landlord, and a duplicate original thereof shall be delivered to Landlord. As of
the Commencement Date hereof, the minimum limits of liability of such insurance
for each year shall be Three Million Dollars ($3,000,000.00) for combined bodily
injury (or death) and damage to property (per occurrence), and from time to time
during the Term for such higher limits, if any, as are carried customarily in
the Boston/Route 128 area with respect to similar properties.
At any time when Tenant is performing construction work in or on the
Premises, Tenant shall carry builder's risk insurance satisfactory to Landlord.
Tenant shall provide Landlord with a certificate evidencing such coverage, which
shall state that the coverage cannot be cancelled or amended without thirty
days' prior notice to Landlord.
Tenant at its cost shall maintain on all its personal property, tenant
improvements and alterations in on or about the Premises a policy of standard
fire and extended coverage insurance, with vandalism and malicious mischief
endorsements, to the extent of their full replacement value. The proceeds for
any such policy shall be used by Tenant for the replacement of personal property
or the restoration of tenant improvements or alterations. Tenant shall deliver a
certificate evidencing such coverage to Landlord, which shall state that the
coverage may not be amended or cancelled without at least thirty days' prior
written notice to Landlord.
7.3 Tenant's Risk. Tenant agrees that all of the furnishing, fixtures,
equipments, effects, and property of every kind, nature and description of
Tenant, and of all persons claiming by, through or under Tenant which during the
continuance of this Lease or any occupancy of the Premises by Tenant or anyone
claiming under Tenant may be on the Premises, shall be at the sole risk and
hazard of Tenant, and if the whole or any part thereof shall be destroyed or
damaged by fire, water or otherwise, or by the leakage or bursting of pipes or
by theft or from any other cause, no part of said loss or damage is to be
charged to or be borne by Landlord, except that Landlord shall in no event be
exonerated from any liability to Tenant or to any person for any injury, loss,
damage, or liability to the extent such exoneration is prohibited by law and to
the extent otherwise set forth herein.
7.4 Landlord's Insurance. Landlord shall carry such insurance with respect
to the Premises as may from time to time be deemed reasonably prudent by
Landlord or required by any mortgagee holding a mortgage thereon or any ground
lessor of the Land, which may only include loss of rents coverage if required by
a mortgagee, and in any event shall include all-risk property insurance against
loss by fire and the risks now covered by extended coverage endorsement in an
amount at
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least equal to 100% of the replacement value of the Building and the
improvements, alterations and additions installed by Tenant therein, exclusive
of foundation, site preparation and other construction costs which would not
need to be duplicated in the event of total destruction of the Building, and
shall supply certificates of all such insurance to Tenant issued by or on behalf
of the insurers named therein by a duly authorized agent. Tenant shall pay
Landlord as Additional Rent the premiums for such insurance within ten (10) days
after Landlord sends Tenant a copy of the invoice for the premium of such
insurance. In the event that Landlord fails to maintain such insurance and to
provide Tenant with evidence of the same within ten (10) days of request
therefor, Tenant may obtain such insurance, and deduct the cost of the same from
the Annual Fixed Rent due hereunder.
7.5 Subrogation. Any insurance carried by either party with respect to the
Property, or any property therein or occurrences thereon shall, without further
request by either party, if it can be so written without additional premium, or
with an additional premium which the other party elects to pay, include a clause
or endorsement denying to the insurer rights of subrogation against the other
party to the extent rights have been waived by the insured prior to occurrence
of injury or loss. Each party, notwithstanding any provisions of this Lease to
the contrary, hereby waives any rights of recovery against the other for injury
or loss, including, without limitation, injury or loss caused by negligence of
such other party due to hazards covered by insurance containing such clause or
endorsement to the extent of the indemnification received thereunder.
ARTICLE VIII.
CASUALTY AND EMINENT DOMAIN
8.1 Casualty During Term. If, during the Term, the Building shall be
partially damaged (as distinguished from "substantially damaged," as that term
is hereinafter defined) by fire or casualty, Landlord shall proceed promptly to
restore the Building (consistent, however, with governmental laws and codes then
in existence), to substantially the condition thereof at the time of such
damage, but Landlord shall not be responsible for delay in such restoration
which may result from any cause beyond the reasonable control of Landlord.
If during the Term the Building shall be substantially damaged (as that
term is hereinafter defined) by fire or casualty, the risk of which is covered
by Landlord's insurance, Landlord shall, promptly after such damage and the
determination of the net amount of insurance proceeds available to Landlord,
expend so much as may be necessary of such net amount to restore (consistent,
however, with governmental laws and codes then in existence) the Building to
substantially the condition thereof at the time of such damage. If the Building
shall be substantially damaged by fire or
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casualty (a) as the result of a risk not covered by the forms of casualty
insurance maintained by Landlord, or (b) the net amount of insurance proceeds
available to Landlord are insufficient to cover the cost of restoring the
Building in the reasonable estimate of Landlord, then in any such case Landlord
may, but shall have no obligation to, restore the Building. If Landlord elects
not to restore the Building, Landlord shall terminate this Lease by giving
notice to Tenant within a reasonable time after Landlord has determined the net
amount of insurance proceeds available to Landlord and the estimated cost of
such restoration.
If Landlord shall notify Tenant that Landlord does not intend to restore
the Building and intends to terminate the Lease by reason of the unavailability
or insufficiency of insurance proceeds, Tenant shall have the right to
contribute to Landlord the amount of such insufficiency, and if Tenant shall
promptly notify Landlord of Tenant's desire to contribute such insufficiency and
provide Landlord with security for Tenant's undertaking in this respect
satisfactory to Landlord, this Lease shall not terminate and Landlord shall
restore the Building unless otherwise excused and permitted to terminate by some
other provision of this Article VIII.
Unless Landlord within forty-five (45) days after the casualty advises
Tenant of the status of Landlord's obligations with respect to reconstruction,
Tenant shall have the right to terminate this Lease, such termination to take
effect as of the date of such Tenant's notice. In addition, Tenant shall have
the right to terminate this Lease by written notice to Landlord in the event of
a casualty as to which the restoration period will exceed one hundred fifty
(150) days from the date of the casualty, or in the event that Landlord
commences restoration but fails to complete the same within one hundred fifty
(150) days from the date of the casualty.
8.2 Casualty at End of Term. If the Premises shall be substantially
damaged by fire or casualty within the last twelve (12) months of the Term (as
the same may have been extended hereunder), either party shall have the right,
by giving notice to the other not later than thirty (30) days after such damage,
to terminate this Lease, whereupon this Lease shall terminate as of the date of
such notice.
8.3 "Substantially Damaged". The term, "substantially damaged," as used in
this Article VIII, shall refer to damage of such a character that the same
cannot, in ordinary course, reasonably be expected to be repaired within one
hundred twenty (120) days from the time that repair work would commence.
8.4 Condemnation. Except as hereinafter provided, if the Premises, or such
portion thereof as to render the balance (if reconstructed to the maximum extent
practicable in the circumstances) unsuitable for Tenant's purposes, shall be
taken by eminent domain, Landlord or Tenant shall have the right to terminate
this Lease by notice to the other of its desire to do so, provided that such
notice is given not later than thirty (30) days after the effective date of such
taking. Should any part of the
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Premises be so taken, and should this Lease be not terminated in accordance with
the foregoing provisions, Landlord agrees to Use due diligence to put what may
remain of the Premises (consistent, however, with governmental laws and codes
then in existence) into proper condition for use and occupation as nearly like
the condition of the Premises prior to such taking as shall be practicable, but
Landlord shall not be required to expend funds in excess of the damages
recovered by Landlord as a result of taking.
8.5 Abatement of Rent. If the Premises shall be damaged by fire or other
casualty, the Annual Fixed Rent and Additional Rent shall be justly and
equitably abated and reduced according to the nature and extent of the loss of
use thereof suffered by Tenant; and in case of a taking which permanently
reduces the area of the Premises, a just proportion of the Annual Fixed Rent
shall be abated for the remainder of the Term.
8.6 Condemnation Award. Landlord shall have and hereby reserves and
excepts, and Tenant hereby grants and assigns to Landlord, all rights to recover
for damages to the Premises, and the leasehold interest hereby created, and to
compensation accrued or hereafter to accrue by reason of such taking, damage or
destruction, as aforesaid, and by way of confirming the foregoing, Tenant hereby
grants and assigns to Landlord all rights to such damages or compensation.
Nothing contained herein shall be construed to prevent Tenant from prosecuting
in any condemnation proceedings a claim for recovery of the cost of improvements
installed by Tenant in the Premises, as well as Tenant's fixtures, equipment,
personal property, and relocation expenses.
ARTICLE IX.
DEFAULT
9.1 Tenant's Default. In the event that:
(a) Tenant shall fail to pay the Annual Fixed Rent, Additional
Rent or other charges for which provision is made herein on or
before the date on which the same become due and payable, and
such condition continues for seven (7) days after written
notice from Landlord to Tenant that the same are due (but
Tenant shall not be entitled to such notice more than twice in
any twelve-month period), or
(b) Tenant shall fail to perform or observe any other term or
condition contained in this Lease and Tenant shall not cure
such failure within thirty (30) days after written notice from
Landlord
-15-
to Tenant thereof or, if such failure cannot be cured within
such thirty (30) days, if Tenant shall fail to commence to
cure such failure within such thirty (30) days and promptly
and diligently complete the curing of the same, or
(c) The estate hereby created shall be taken on execution or by
other process of law, or if Tenant shall be judicially
declared bankrupt or insolvent according to law, or if any
assignment or trust mortgage arrangement, so-called, shall be
made of the property of Tenant for the benefit of creditors,
or if a receiver, guardian, conservator, trustee in
involuntary bankruptcy, or other similar officer shall be
appointed to take charge of all or any substantial part of
Tenant's property by a court of competent jurisdiction, or if
a petition shall be filed for the reorganization of Tenant
under any provisions of the Bankruptcy Code now or hereafter
enacted and the same is not dismissed within ninety (90) days,
or if Tenant shall file a petition for such reorganization, or
for arrangements under any provisions of the Bankruptcy Code
now or hereafter enacted and providing a plan for a debtor to
settle, satisfy or extend the time for payment of debts.
Then, in any such case, whether or not the Term shall have begun, Landlord
lawfully may, immediately or at any time thereafter, give notice to Tenant
specifying the default and this Lease shall come to an end on the date specified
therein as fully and completely as if such date were the date herein originally
fixed for the expiration of the Term (Tenant hereby waiving any rights of
redemption), and Tenant will then quit and surrender the Premises to Landlord,
but Tenant shall remain liable as hereinafter provided.
9.2 Damages. In the event that this Lease is terminated under any of the
provisions contained in Section 9.1 or shall be otherwise terminated for breach
of any obligation of Tenant, Tenant covenants to pay to Landlord forthwith on
Landlord's demand, as compensation, an amount equal to the excess, if any, of
the discounted present value of the total rent reserved for the residue of the
Term over the then discounted present fair rental value of the Premises for the
residue of the Term. In calculating the discounted present value, the parties
agree to use a discount rate of two percent (2%) above the prime rate published
by the Wall Street Journal during the twelve (12) months following any such
termination. In calculating the rent reserved, there shall be included, in
addition to the Annual Fixed Rent and all Additional Rent, the value of all
other considerations agreed to be paid or performed by Tenant for said residue
during the twelve months following any such termination. Tenant further
covenants as an additional and cumulative obligation after any such termination
to pay punctually to Landlord during the twelve months following any such
termination all the sums and perform all the obligations which Tenant
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covenants in this Lease to pay and to perform in the same manner and to the same
extent and at the time as if this Lease had not been terminated. In calculating
the amounts to be paid by Tenant under the next foregoing covenant, Tenant shall
be credited with any amount paid to Landlord pursuant to the first sentence of
this Section 9.2 with the net proceeds of any rent obtained by reletting the
Premises, after deducting all Landlord's expenses in connection with such
reletting, including, without limitation, all repossession costs, brokerage
commission, fees for legal services and expenses of preparing the Premises for
such reletting, it being agreed that Landlord may (i) relet the Premises, or any
part or parts thereof, for a term or terms which may, at Landlord's option, be
equal to or less than or exceed the period which would otherwise have
constituted the balance of the Term, and may grant such concessions and free
rent as Landlord in its reasonable commercial judgment considers advisable or
necessary to relet the same and (ii) make such alterations, repairs and
decorations in the Premises as Landlord in its reasonable commercial judgment
considers advisable or necessary to relet the same, and no action of Landlord is
accordance with the foregoing or failure to relet or to collect rent under
reletting shall operate or be construed to release or reduce Tenant's liability
as aforesaid. Landlord agrees to use reasonable efforts to attempt to relet the
Premises, but shall be entitled to seek to rent other properties of Landlord
prior to reletting the Premises.
9.3 Remedies Cumulative. The specific remedies to which Landlord may
resort under the terms of this Lease are cumulative and are not intended to be
exclusive of any other remedies or means of redress to which it may be lawfully
entitled in case of any breach or threatened breach by Tenant of any provisions
of this Lease. In addition to the other remedies provide in this Lease, Landlord
shall be entitled to the restraint by injunction of the violation or attempted
or threatened violation of any of the covenants, conditions, or provisions of
this Lease or to a decree completing specific performance of any such covenants,
conditions, or provisions. Nothing contained in this Lease shall limit or
prejudice the right of Landlord to prove for and obtain in proceedings for
bankruptcy, insolvency or like proceedings by reason of the termination of this
Lease, an amount equal to the maximum allowed by any statute or rule of law in
effect at the time when, and governing the proceedings in which, the damages are
to be proved, whether or not the amount be greater, equal to, or less than the
amount of the loss or damages referred to above.
9.4 Landlord's Election. If Tenant shall at any time default in the
performance of any obligation under this Lease, Landlord shall have the right,
but not the obligation, upon fifteen (15) days' notice to tenant (except in case
of emergency in which case no notice need be given), to perform such obligation
notwithstanding the fact that no specific provisions for such substituted
performance is made in this lease with respect to such default. In performing
such obligation, Landlord may reasonably make any payment of money or perform
any other
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reasonable act and all sums so paid by Landlord and all necessary incidental
costs and connection with enforcement of its rights under this Section incurred
by Landlord (together with interest at two percent (2%) above the prime rate
from time to time published by the Wall Street Journal) shall be deemed to be
Additional Rent under this Lease and shall be payable to Landlord immediately on
demand. Landlord may exercise its rights under this Section without waiving any
other of its rights or releasing Tenant from any of its obligations under this
Lease.
9.5 Late Charges. In the event that any payment of Annual Fixed Rent or
Additional Rent shall remain unpaid for a period of seven (7) days after written
notice from Landlord to Tenant, there shall become due to Landlord from Tenant,
as Additional Rent and as compensation for Landlord's extra administrative costs
in investigating the circumstances of late rent, a late charge of three percent
(3%) of the amount overdue.
ARTICLE X.
MORTGAGEES' AND GROUND LESSORS' RIGHTS
ESTOPPEL CERTIFICATE
10.1 Subordination. Tenant shall, at the request of Landlord, subordinate
this Leave to any and all mortgages or ground leases on the Property, so that
the lien of any such mortgage or ground lease shall be superior to all rights
hereby or hereafter vested in Tenant, on the condition that each such
subordination shall provide by its terms that in the event of foreclosure of
such mortgage or termination of such ground lease, Tenant shall remain
undisturbed in its occupancy of the Premises under the terms and conditions of
this lease, so long as Tenant complies with such terms and conditions. In
addition, and as a condition to the obligations of Tenant hereunder, Landlord
shall deliver to Tenant a Nondisturbance and Attornment Agreement on the
foregoing terms from any existing mortgagee or ground lessee of the Premises,
including any existing mortgagee or ground lessee of the parking facilities
described in Exhibit B. Landlord hereby represents to Tenant that there is no
mortgage presently encumbering the Premises.
10.2 No Prepaid Rent. No Annual Fixed Rent, Additional Rent, or any other
charge payable to Landlord shall be paid more than thirty (30) days prior to the
due date thereof under the terms of this Lease and payments made in violation of
this provision shall (except to the extent that such payments are actually
received by a mortgagee or ground lessor) be a nullity as against such mortgagee
or ground lessor and Tenant shall be liable for the amount of such payments to
such mortgagee or ground lessor.
10.3 Opportunity to Cure. 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
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Tenant's obligations to pay Annual Fixed Rent or Additional Rent hereunder or to
terminate this Lease, shall result in a release or termination of such tenant's
obligations or a termination of this Lease unless (a) Tenant shall have first
given written notice of Landlord's act or failure to act to Landlord's
mortgagees of record, if any, of whose identity and address Tenant shall have
been given notice, specifying the act or failure to act on the part of Landlord
which would give basis to Tenant's rights; and (b) such mortgagees, after
receipt of such notice, have failed to or refused to correct or cure the
condition complained of within a reasonable time thereafter, which shall include
a reasonable time for such mortgagee to obtain possession of the Property if
possession is necessary for the mortgagee to correct or cure the condition and
if the mortgagee notifies Tenant of its intention to take possession of the
Property and correct or cure such condition.
10.4 Estoppel Certificate. Tenant shall from time to time within fifteen
(15) days of a written request by Landlord execute, acknowledge and deliver to
Landlord a statement in writing certifying to Landlord or an independent third
party: that this Lease is unmodified and in full force and effect (or, if there
have been any modifications, that the same is in full force and effect as
modified and stating the modifications); that Tenant has no knowledge of any
defenses, offsets, or counterclaims against its obligations to pay the Annual
Fixed Rent and Additional Rent and to perform its other covenants under this
Lease (or if there are any defenses, offsets, or counterclaims, setting them
forth in reasonable detail); that there are no known uncured defaults of
Landlord or Tenant under this Lease (or if there are known defaults, setting
them forth in reasonable detail); the dates to which the Annual Fixed Rent,
Additional Rent and other charges have been paid; and such other matters as
Landlord may reasonably request. Any such statement delivered pursuant to this
Section may be relied upon by any mortgagee or purchaser of this Premises and
shall be binding on Tenant. Landlord hereby covenants and agrees to furnish
estoppel certificates to Tenant on the same terms and conditions as Tenant is
obligated to furnish the same to Landlord hereunder.
ARTICLE XI.
MISCELLANEOUS
11.1 No Recordation. Tenant agreed not to record this Lease, but
simultaneous with the execution of this Lease, both parties shall execute and
deliver a memorandum of this Lease in form appropriate for recording or
registration, an instrument acknowledging the Commencement Date of the Term, and
if this Lease is terminated before the Term expires, an instrument in such form
acknowledging the date of termination.
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11.2 Notices: Checks. Whenever any notice, approval, consent, request,
election, offer or acceptance is given or made pursuant to this Lease, it shall
be in writing. Communications and payments shall be addressed, if to Landlord,
at Landlord's Original Address or at such other address as may have been
specified by prior notice to Tenant; and if to Tenant, at Tenant's Original
Address, with a copy to Xxxxxxxxx X. Xxxxxxx, Esq., Xxxx and Xxxx LLP, 00 Xxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, or at such other place as may have been
specified by prior notice to Landlord. Any communication so addressed shall be
deemed duly served on the day delivered, if personally delivered, on the third
business day following the date of mailing if mailed by registered or certified
mail, return receipt requested, or on the day following delivery with a
recognized overnight courier service. If Landlord by notice to Tenant at any
time designates some other person or receive payments or notices, all payments
or notices thereafter by Tenant shall be paid or given to the agent designated
until notice to the contrary is received by Tenant from Landlord. Annual Fixed
Rent and Additional Rent payments required under this Lease shall be deemed
sufficiently paid if made by check collected on first presentation.
11.3 Successors and Assigns. Subject to Section 6.8 regarding Tenant's
right to assign and sublet, this Lease shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns,
except that the original Landlord named herein and each successive landlord
shall be liable only for obligations accruing during the period of its
ownership.
11.4 Waiver. The failure of Landlord to Tenant to seek redress for
violation of, or to insist upon strict performance of, any covenant or condition
of this Lease, shall not be deemed a waiver of such violation nor prevent a
subsequent act, which would have originally constituted a violation, from having
all the force and effect of an original violation. The receipt by Landlord of
Annual Fixed Rent or Additional Rent with knowledge of the breach of any
covenant of this Lease shall not be deemed a waiver of such breach. No provision
of this Lease shall be deemed to have been waived by Landlord or Tenant unless
such waiver is in writing and signed by the waiving party. No consent of waiver,
express or implied, by Landlord or by Tenant to or of any breach of any
agreement or duty shall be construed as a waiver or consent to or of any other
breach of the same or any other agreement or duty.
11.5 Partial Payment. No acceptance by Landlord of a lesser sum than the
Annual Fixed Rent and Additional Rent then due shall be deemed to be other than
a partial installment of such rent due, nor shall any endorsement or statement
on any check or any letter accompanying any check or payment as rent be deemed
an accord and satisfaction, and Landlord may accept such check or payment
without prejudice to Landlord's right to recover the balance of such installment
or pursue any other remedy in this Lease provided the delivery of keys to any
employee of Landlord or
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to Landlord's agent or any employee thereof shall not operate as a termination
of this Lease or a surrender of the Premises.
11.6 Severability. If any term of this Lease, or the application thereof
to any person or circumstances, shall to any extent be invalid or unenforceable,
the remainder of this Lease, or the application of such term to persons or
circumstances other than those as to which it is invalid or unenforceable, shall
not be affected thereby, and each term of this Lease shall be valid and
enforceable to the fullest extent permitted by law. The titles of the Articles
are for convenience only and not to be considered in construing this Lease.
11.7 Quiet Enjoyment. So long as Tenant pays Annual Fixed Rent and
Additional Rent, performs all other Tenant covenants of this Lease and observes
all conditions hereof, Tenant shall peaceably and quietly have, hold and enjoy
the Premises for the Term in accordance with the terms of this Lease.
11.8 Entire Agreement; Captions. This Lease contains all of the agreements
of the parties with respect to the subject matter thereof and supersedes all
prior dealings between them with respect to such subject matter. The captions of
this Lease shall have no effect on its interpretation.
11.9 Signs. Tenant at its cost shall have the right to place, construct,
and maintain on the Premises one or more signs advertising its business at the
Premises, and no other signs. Any sign that Tenant has the right to place,
construct, and maintain shall comply with all laws and ordinances, and Tenant
shall obtain any approval required by any such laws and ordinances. Landlord
makes no representation with respect to Tenant's ability to place, construct or
maintain any signs.
11.10 Parking Lot Use and Maintenance; Cambridge Electric Easement.
Landlord will at all times during the term of this Lease permit free parking by
Tenant, its customers, employees, invitees, agents and caretakers in the parking
areas described in Exhibit B.
Landlord covenants and agrees to make all payments and perform all
obligations required of Landlord under the Parking Easement from Cambridge
Electric Company referenced in Exhibit B (the "Parking Easement") so that the
same shall remain in full force and effect during the term of this Lease and any
extensions thereof. If Landlord breaches said covenant, Tenant may make payment
or perform such obligations as are required of Landlord under the Parking
Easement and and deduct the cost thereof from the Rent payable under this Lease.
Landlord hereby represents and warrants to Tenant that the Parking Easement is
in full force and effect; that Landlord has made all payments and performed all
obligations of Landlord thereunder through the date hereof; that the rent
payable thereunder for
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calendar year 1998 was $2,795.00 with respect to Cambridge Electric Company,
which amount has been paid in full; and that Landlord has the right under the
Parking Easement to grant to Tenant the rights with respect thereto granted by
this Lease. Landlord agrees to use best efforts to prevent Cambridge Electric
Company from exercising the right of termination set forth in its Parking
Easement. In the event of termination of the Parking Easement, or in the event
that Tenant is deprived of any of the parking rights referenced in Exhibit B,
Landlord shall use best efforts to provide to Tenant replacement spaces therefor
in a location reasonably convenient to the Premises, including the Fresh Pond
Shopping Center. If Landlord fails to provide replacement spaces upon such
termination, or if such replacement spaces do not conform with the zoning
requirements of the City of Cambridge, then, at Tenant's election, Tenant may
either terminate this Lease upon thirty (30) days prior written notice to
Landlord, or Tenant may make its own arrangements for replacement parking spaces
and deduct the cost thereof from monthly payments of Fixed Rent hereunder.
11.11 Time of Essence. Time is of the essence of each provisions of this
Lease.
11.12 Authorization. If either party is a corporation, that party shall
deliver to the other party on execution of this Lease a certified copy of a
resolution of its Board of Directors authorizing the execution of this Lease and
naming the officers that are authorized to execute this Lease on behalf of the
corporation. Each individual executing this Lease warrants and represents that
he or she is duly authorized to execute this Lease on behalf of the party that
he or she represents, and that no further act is required to make this Lease the
binding obligation of such party.
11.13 Brokerage. Each party represents and warrants to the other party
that the only parties with whom they have dealt who would be entitled to a
brokerage commission in connection with this Lease are Xxxxxx Xxxxx & X'Xxxxxx
and Xxxxxxx Xxxx, as to whom Landlord shall be responsible for the payment of
all amounts due. Each party agrees to defend, indemnify, and hold the other
party harmless from any liability arising from a breach of the foregoing
representation and warranty.
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Executed as a sealed instrument in two or more counterparts on the day and
year first above written.
LANDLORD: 205 Alewife Limited Partnership,
a Massachusetts limited partnership
By: 205 Alewife Corporation,
a Massachusetts corporation,
its general partner
By: /s/ Xxxxxx Xxxxxxxxx
-----------------------
Xxxxxx Xxxxxxxxx,
President
TENANT: Transkaryotic Therapies, Inc.
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------
Its: VP, CFO
---------------------
THE UNDERSIGNED ADDITIONAL PARTY JOINS IN THIS LEASE FOR THE PURPOSES OF
GRANTING TO TENANT THE RIGHT TO PARK IN ITS PARKING FACILITIES LISTED IN EXHIBIT
B DURING THE TERM OF THIS LEASE WITHOUT THE REQUIREMENT OF PAYMENT OF ANY SUMS
IN ADDITION TO THE RENT PAYABLE BY TENANT HEREUNDER, AND WITHOUT THE UNDERSIGNED
INCURRING ANY OTHER LIABILITY OR OBLIGATION UNDER THIS LEASE:
/s/ Rusen Atiniz
--------------------------
Rusen Atiniz, as Trustee of
Fresh Pond Shopping Center Trust
Hereunto duly authorized
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EXHIBIT A
DESCRIPTION OF PREMISES
The land with the building and improvements thereon and appurtenances thereto
located at 000 Xxxxxxx Xxxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx, more
particularly described in Transfer Certificate of Title No. 205120, filed for
registration with the Middlesex South Registry District of the Land Court in
Registration Book 1155, Page 170.
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EXHIBIT B
PARKING
Tenant shall have the exclusive right to the following parking spaces,
which spaces shall be specifically designated by signage prepared by Tenant:
1. Fourteen (14) parking spaces on the Premises at 000 Xxxxxxx Xxxxx Xxxxxxx.
Owner: Landlord
No Mortgagee
2. Twelve (12) parking spaces within the parking easement granted by Cambridge
Electric Company dated October 16, 1987, filed for registration with the
Middlesex South Registry District of the Land Court as Document No. 760840. (the
"Parking Easement").
Owner: Cambridge Electric Company; Landlord, holder of the
Parking Easement
3. Seventeen (17) parking spaces at the rear of the building on premises at 000
Xxxxxxx Xxxxx Xxxxxxx, in the location closest to the leased premises
Owner: Rusen Atiniz, as Trustee of the Fresh Pond Shopping
Center Trust under declaration of trust dated June 29, 1977,
recorded with the Middlesex South Registry of Deeds in Book
13301, Page 110, filed with said Registry District as Document
No. 561975, as amended of record
No Mortgagee
Title Reference: Middlesex South Registry of Deeds, Book 28895, Page 398
All of said parking facilities shall be without additional charge under
this Lease. The foregoing location of all of the foregoing parking spaces are
shown on the attached Exhibit B-1.
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EXHIBIT B-1
[GRAPHIC OMITTED]
[PLOT PLAN FOR PREMISES; SHOWS PARKING LOCATIONS]
EXHIBIT C
OPTIONS TO EXTEND
If this Lease is in full force and effect, the Tenant shall have the right
to extend the term of this Lease for three (3) separate five (5) year options of
extension provided written notice of the election of such option shall be
delivered by Tenant to Landlord at least six (6) months prior to the expiration
of the initial term of this Lease, in the case of the first option, and similar
notice prior to the expiration of the first extension for exercise of the second
extension option if applicable and a similar notice prior to the expiration of
the second extension option, if applicable for exercise of the third extension
option. It shall be a condition of the validity of the exercise of such options
that Tenant, at the time required herein for the exercise of said options, and
upon the commencement of the option period, shall not be in default under this
Lease beyond the expiration of any applicable grace period and if at either such
time, the applicable grace period shall not have expired, the condition shall be
determined upon the expiration of the grace period. If said options are duly
exercised, the term of this Lease shall be automatically extended without the
requirement of any further instrument, upon all of the same terms, provisions
and conditions set forth in the Lease, except that the fixed rent for and with
respect to each option term shall be Market Rent determined for each such
period.
Whenever the term "Market Rent" is required to be determined under this
Lease, the term shall mean the market rate rent chargeable for comparable office
space in the Cambridge, Massachusetts area, assuming the condition of the
Premises as of the date of commencement of the extended term, and shall be
determined as follows:
(a) By no later than one hundred fifty (150) days preceding the last day
set forth for the Tenant to give notice of its election to extend the term of
this Lease, the Tenant shall send a written request to Landlord requesting
Landlord's determination of the "Market Rent" for the Premises for and with
respect to the five (5) year extension period. Within thirty (30) days after
such request Landlord shall notify Tenant ("Landlord's Notice") of Landlord's
determination of the "Market Rent" for such purpose (the "Determined Market
Rent"). The Tenant's written request to Landlord for a determination of Market
Rent, as set forth above, shall not be deemed to be the Tenant's exercise of its
right to extend the term of this Lease. Tenant shall not be required to exercise
such right to extend until Tenant has received notice of the "Market Rent" as
determined pursuant to this Exhibit C.
The same procedures shall govern the second five (5) year option if duly
exercised prior to the expiration of the first extended option term and also the
third five (5) year option if duly exercised prior to the expiration of the
second extended option term.
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(b) If the Tenant disagrees with the Determined Market Rent as being the
"Market Rent" for the Premises for the extension period, the Tenant shall have
the right to initiate a proceeding hereunder for the determination of such
"Market Rent" by, within ten (10) days after Landlord's Notice, giving written
notice thereof to Landlord which notice shall also appoint a real estate
appraiser who is a designed member in good standing of either the Society of
Real Estate Appraisers or the Appraisal Institute with at least ten (10) years,
full-time commercial appraisal experience for the purpose of establishing such
"Market Rent" by a market survey in the Cambridge, Massachusetts area. Within
ten (10) days after receipt by the Landlord of such notice, the Landlord shall,
by notice to the Tenant, appoint a real estate appraiser, with the same minimum
qualifications set forth in the preceding sentence, to determine jointly with
the Tenant's appraiser such "Market Rent". If within thirty (30) days after the
second appraiser has been appointed, the two designated appraisers are unable to
agree upon such "Market Rent", they shall elect a third appraiser meeting the
qualifications stated in this paragraph within ten (10) days after expiration of
the aforesaid thirty (30) day period. If the two appraisers are not able to
agree upon such third appraiser with the aforesaid ten (10) day period, either
appraiser may request the office of the American Arbitration Association located
nearest to Boston, Massachusetts to designate a third appraiser willing so to
act and an appraiser so appointed shall, for all purposes have the same standing
and powers as though he had been seasonably appointed by the appraisers first
appointed. In the case of the inability or refusal to serve of any person
designated as an appraiser, or in case any appraiser for any reason, ceases to
be such, an appraiser to fill such vacancy, meeting the minimum qualifications
stated above, shall be promptly appointed by Landlord, the Tenant, the appraiser
first appointed by the Tenant, or the said office of the American Arbitration
Association, as the case may be, whichever made the original appointment, or, if
the person who continues to act, or the Landlord or the Tenant may apply to said
office of the American Arbitration Association to fill such vacancy with an
appraiser meeting the minimum qualifications stated above, and any appraiser so
appointed to fill such vacancy shall have the same standing and powers as though
originally appointed. The resulting board of appraisers shall, forthwith upon
their appointment, (i) hear the Parties to this Lease and their witnesses, (ii)
examine the records relating to the Premises, the market surveys and such other
documents and records as may, in their judgment, be necessary, (iii) determine
the "Market Rent" of the Premises for such purposes.
The costs, other than counsel fees, of such appraisal shall be borne
equally by the Parties. Any determination by a majority of the members of the
board of appraisers shall be final and binding upon the parties, but if a
majority of the members of the board of appraisers are unable to agree upon a
determination, the determination of such third appraiser shall be binding upon
the Parties. Upon determining such Market Rent and after computing the rent as
set forth above, the board of appraisers shall promptly notify the Parties in
writing of such
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determination. If any party shall fail to appear at the hearings appointed by
the appraisers, the appraisers may act in the absence of such party.
The determination of the board of appraisers or the third appraiser, as
appropriate, made in accordance with the foregoing provisions shall be final and
binding upon the Parties, such determination may be entered as an award in
arbitration in a court of competent jurisdiction, and judgment thereon may be
entered.
(c) Upon the determination of such "Market Rent" the Landlord shall use
such in the calculation of the Fixed Rent as set forth in this Lease. If, for
any reason, the decision of the appraiser or the appraisers shall not be
determined before the commencement of the extension period, then the Tenant
shall continue to pay Fixed Rent in monthly installments at the rate in effect
immediately prior to the commencement of such extension period until such
decision of the appraiser(s) shall be made, and upon the decision by the
appraiser(s) an appropriate adjustment shall be made, retroactive to the first
day of such extension, except that Tenant shall not be required to exercise its
right to extend until Tenant has received notice of the "Market Rent" as
determined pursuant to this Exhibit C.
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EXHIBIT D
TENANT IMPROVEMENTS
Tenant improvements are illustrated in drawings prepared by Xxxxxxxx Xxxxxxx
Associates dated 8/31/98. Tenant improvements shall consist of the complete
interior tenant fitup of 000 Xxxxxxx Xxxxx Xxxxxxx (29,100 square feet ) will
include the following disciplines, structural, architectural, mechanical and
electrical:
Structural
o Remove damaged concrete floor at the rear, right side,
first floor
o Install a series of mini-piles to support new steel columns which
will extend through the roof at this section. (this steel will be
used to support new mechanical equipment.)
o Reinstall concrete floor at the same elevation as the
left side floor
o Selective demolition of existing non-bearing drywall
Architectural
o Erect new walls, ceilings and flooring in accordance with
architectural floorplans per the following distribution:
Use SF %
--- -- -
Laboratory 9,600 32
Office 4,600 15
Storage/warehouse 2,600 10
Mechanical 2,600 10
Protein Production Suite 9,700 33
- Production suite will be built to clean room standards which meet or
exceed Class 10,000.
- Laboratories shall be typical wet chemistry labs with permanently
affixed metal casework and epoxy countertops.
- An interior elevator will be installed to satisfy ADA
requirements.
Mechanical
- Purchase and install new HVAC equipment including (2) air handlers,
(2) air-cooled chillers, a gas-fired steam boiler and associated
ductwork
- New high purity utility systems (Clean Steam, RODI, WFI and process
gases) will be installed.
Electrical
- The electrical service will be upgraded at the tenants sole cost
either through the direct purchase and installation of primary
switchgear or amortized over a two year period with ComElectric.
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All new secondary switchgear gear and power distribution will be installed
along with a natural gas powered standby generator.
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EXHIBIT D-1
TENANT IMPROVEMENTS REMOVABLE BY TENANT
At Tenant's option, the following permanently affixed equipment may be
removed from the Premises upon lease termination:
- Clean steam generator
- Reverse osmosis de-ionized (RODI) water generation skid
- WFI still
- Automated manufacturing equipment
- Dedicated process equipment and tanks
- Autoclaves
- Glasswashers
- Biosafety cabinets
- Incubators
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