Exhibit 10.21
00 XXXXXXXX XXXXXX/XXXXXXXX THERAPEUTICS, INC.
PAGE 1
LEASE AGREEMENT
THIS LEASE AGREEMENT is made as of this 18th day of November, 2003,
between ARE-60 Westview, LLC, a Delaware limited liability company ("Landlord"),
and Critical Therapeutics, Inc., a Delaware corporation ("Tenant").
BASIC LEASE PROVISIONS
ADDRESS: 00 Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx
PREMISES: That certain approximately 40,200 rentable square foot
building (the "Building"), located at 00 Xxxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxxxxx, as shown on Exhibit A.
PROJECT: The real property on which the Building is located,
together with all improvements thereon and appurtenances
thereto as described on Exhibit B.
BASE RENT: First Lease Year: $1,005,000.00 per annum; $83,750.00 per month
Second Lease Year: $1,206,000.00 per annum; $100,500.00 per month
Third Lease Year: $1,235,346.00 per annum; $102,945.50 per month
Fourth Lease Year: $1,265,094.00 per annum; $105,424.50 per month
Fifth Lease Year: $1,295,646.00 per annum; $107,970.50 per month
RENTABLE AREA OF PREMISES: 40,200 sq. ft.
RENTABLE AREA OF PROJECT: 40,200 sq. ft.
TENANT'S SHARE OF OPERATING EXPENSES: 100%
SECURITY DEPOSIT: $335,000
COMMENCEMENT DATE: November 18, 2003
TARGET DELIVERY DATE: March 1, 2004
RENT ADJUSTMENT PERCENTAGE: 2.5%
BASE TERM: Beginning on the Commencement Date and ending sixty (60)
months from the first day of the first full month
following the Rent Commencement Date
PERMITTED USE: Research and development laboratory, related office and
other related uses consistent with the character of the
Project and otherwise in compliance with the provisions of
Section 7 hereof.
ADDRESS FOR RENT PAYMENT: LANDLORD'S NOTICE ADDRESS:
000 X. Xxx Xxxxxx Xxxxxx, Xxxxx 000 000 X. Xxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000 Xxxxxxxx, XX 00000
Attention: Accounts Receivable Attention: Corporate Secretary
TENANT'S NOTICE ADDRESS: GUARANTOR OF LEASE:
Prior to Rent Commencement Date: None
00 XXXXXXXX XXXXXX/XXXXXXXX THERAPEUTICS, INC.
PAGE 2
Critical Therapeutics, Inc.
000 Xxxxxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xx. Xxxx Xxxxxxxxx
After the Rent Commencement Date:
Critical Therapeutics, Inc.
00 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xx. Xxxx Xxxxxxxxx
In all cases, with a copy to:
Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx X. XxxXxxxx, Esquire
The following Exhibits and Addenda are attached hereto and incorporated herein
by this reference:
|X| EXHIBIT A - PREMISES DESCRIPTION |X| EXHIBIT B - DESCRIPTION OF PROJECT
|X| EXHIBIT C - WORK LETTER |X| EXHIBIT D - RENT COMMENCEMENT DATE
|X| EXHIBIT E - RULES AND REGULATIONS |X| EXHIBIT F - TENANT'S PERSONAL PROPERTY
1. LEASE OF PREMISES. Upon and subject to all of the terms and
conditions hereof, Landlord hereby leases the Premises to Tenant and Tenant
hereby leases the Premises from Landlord. Landlord reserves the right to modify
the Project, provided that such modifications do not materially adversely affect
Tenant's use of the Premises for the Permitted Use.
2. DELIVERY; ACCEPTANCE OF PREMISES; COMMENCEMENT Date. Landlord
shall use reasonable efforts to deliver the Premises to Tenant on or before the
Target Delivery Date, with Landlord's Work Substantially Completed. (such
delivery of the Premises being referred to herein as "DELIVERY" or "DELIVER").
Landlord shall endeavor to give at least fourteen (14) days advance notice of
the date by which the Premises will be delivered in the condition required
above, and from and after such notice, provided Tenant has provided a
certificate of insurance, indicating that Tenant has obtained insurance of the
types and in the amounts required to be maintained by Tenant pursuance to
Section 17 hereof, Tenant shall have access to the Premises in order to prepare
the same for its use and occupancy. Such early entry shall be subject to all the
terms and conditions of this Lease, other than the payment of Rent and other
charges due hereunder. The date on which such occupancy begins shall be referred
to herein as the "EARLY OCCUPANCY DATE". The period between the Early Occupancy
Date and the Rent Commencement Date is referred to herein as the "EARLY
OCCUPANCY PERIOD". Except as specifically provided herein, if Landlord fails to
timely Deliver the Premises on or before the Target Delivery Date, Landlord
shall not be liable to Tenant for any loss or damage resulting therefrom, and
this Lease shall not be void or voidable. If Landlord does not Deliver the
Premises within 60 days after the Target Delivery Date for any reason other than
Force Majeure Delays and Tenant Delays, this Lease may be terminated by Tenant
by written notice to Landlord, and if so terminated by Tenant: (a) the Security
Deposit, or any balance thereof (ie., after deducting therefrom all amounts to
which Landlord is entitled under the provisions of this Lease), shall be
returned to Tenant, and (b) neither Landlord nor Tenant shall have any further
rights, duties or obligations under this Lease, except with respect to
provisions which expressly survive termination of this Lease. If the Rent
Commencement Date is delayed beyond the Target Delivery Date as a result of
Tenant Delays, then the Target Delivery Date shall be deemed to be the Rent
Commencement Date. As used herein, the terms "LANDLORD'S WORK," "TENANT DELAYS"
and "SUBSTANTIALLY COMPLETED" shall have the meanings set forth for such terms
in the Work Letter.
00 XXXXXXXX XXXXXX/XXXXXXXX THERAPEUTICS, INC.
PAGE 3
The "RENT COMMENCEMENT DATE" shall be the earliest of: (i) the date
Landlord Delivers the Premises to Tenant; (ii) the date Landlord could have
Delivered the Premises but for Tenant Delays; and (iii) the date Tenant conducts
any business in the Premises or any part thereof. Upon request of Landlord,
Tenant shall execute and deliver written acknowledgments of the Rent
Commencement Date and the expiration date of the Term when such are established
in the form of the "Acknowledgement of Rent Commencement Date" attached to this
Lease as EXHIBIT D; provided, however, Tenant's failure to execute and deliver
any such acknowledgment shall not affect Landlord's rights hereunder. The "TERM"
of this Lease shall be the Base Term, as defined above in the Basic Lease
Provisions and any Extension Terms which Tenant may elect pursuant to Section 40
hereof. For purposes of this Lease, the term "LEASE YEAR" shall mean a period of
twelve (12) consecutive months, commencing on the Rent Commencement Date and
each successive twelve (12) month period, except that if the Rent Commencement
Date shall occur on a date other than the first day of a month, then the first
Lease Year shall include the period from the Rent Commencement Date to the first
day of the following month and twelve (12) calendar months thereafter.
Except as set forth in the Work Letter, if applicable: (i) Tenant shall
accept the Premises in their condition as of the Rent Commencement Date, subject
to all applicable Legal Requirements (as defined in Section 7 hereof); (ii)
Landlord shall have no obligation for any defects in the Premises; and (iii)
Tenant's taking possession of the Premises shall be conclusive evidence that
Tenant accepts the Premises and that the Premises were in good condition at the
time possession was taken. Any occupancy of the Premises by Tenant before the
Rent Commencement Date shall be subject to all of the terms and conditions of
this Lease, including the obligation to pay Rent.
Tenant agrees and acknowledges that neither Landlord nor any agent of
Landlord has made any representation or warranty with respect to the condition
of all or any portion of the Premises or the Project, and/or the suitability of
the Premises or the Project for the conduct of Tenant's business, and Tenant
waives any implied warranty that the Premises or the Project are suitable for
the Permitted Use. This Lease constitutes the complete agreement of Landlord and
Tenant with respect to the subject matter hereof and supersedes any and all
prior representations, inducements, promises, agreements, understandings and
negotiations which are not contained herein. Landlord in executing this Lease
does so in reliance upon Tenant's representations, warranties, acknowledgments
and agreements contained herein.
3. RENT.
(a) BASE RENT. The first month's Base Rent and the Security
Deposit shall be due and payable on delivery of an executed copy of this Lease
to Landlord. Beginning on the first day of the second calendar month after the
Rent Commencement Date, Tenant shall pay to Landlord in advance, without demand,
abatement, deduction or set-off, monthly installments of Base Rent on or before
the first day of each calendar month during the Term hereof, in lawful money of
the United States of America, at the office of Landlord for payment of Rent set
forth above, or to such other person or at such other place as Landlord may from
time to time designate in writing. Payments of Base Rent for any fractional
calendar month shall be prorated. The obligation of Tenant to pay Base Rent and
other sums to Landlord and the obligations of Landlord under this Lease are
independent obligations. Tenant shall have no right at any time to xxxxx,
reduce, or set-off any Rent (as defined in Section 5) due hereunder except for
any abatement as may be expressly provided in this Lease.
(b) ADDITIONAL RENT. In addition to Base Rent, Tenant agrees to
pay to Landlord, commencing on the Rent Commencement Date, as additional rent
("ADDITIONAL RENT"): (i) all "Operating Expenses" (as defined in Section 5), and
(ii) any and all other amounts Tenant assumes or agrees to pay under the
provisions of this lease, including, without limitation, any and all other sums
that may become due by reason of any default of Tenant or failure to comply with
the agreements, terms, covenants and conditions of this Lease to be performed by
Tenant, after any applicable notice and cure period.
4. BASE RENT ADJUSTMENTS. Beginning on the second anniversary of
the first day of the first full month after the Rent Commencement Date, Base
Rent shall be increased on each annual anniversary of the first day of the first
full month after the Rent Commencement Date during the Term of this lease (each
an "ADJUSTMENT DATE") by multiplying the Base Rent payable immediately before
such Adjustment Date by the Rent Adjustment Percentage and adding the resulting
amount to the Base Rent payable immediately before such Adjustment Date.
00 XXXXXXXX XXXXXX/XXXXXXXX THERAPEUTICS, INC.
PAGE 4
Base Rent, as so adjusted, shall thereafter be due as provided herein. Base Rent
adjustments for any fractional calendar month shall be prorated.
5. OPERATING EXPENSE PAYMENTS. Landlord shall deliver to Tenant a
written estimate of Operating Expenses for each calendar year during the Term
(the "ANNUAL ESTIMATE"), which may be revised by Landlord from time to time
during such calendar year. During each month of the Term, on the same date that
Base Rent is due, Tenant shall pay Landlord an amount equal to 1/12th of the
Annual Estimate. Payments for any fractional calendar month shall be prorated.
The term "OPERATING EXPENSES" means all costs and expenses of any kind
or description whatsoever incurred or accrued each calendar year by Landlord
with respect to the Project (including, without duplication, Taxes (as defined
in Section 9), reasonable reserves consistent with good business practice for
future repairs and replacements, capital repairs and improvements amortized over
the lesser of 7 years and the useful life of such capital items, and the costs
of Landlord's third party property manager or, if there is no third party
property manager, administration rent in the amount of 2.5% of Base Rent),
excluding only:
(a) the original construction costs of the Project and renovation
prior to the date of the Lease and costs of correcting defects in such original
construction or renovation;
(b) capital expenditures for expansion of the Project;
(c) interest, principal payments of Mortgage (as defined in
Section 27), debts of Landlord, financing costs and amortization of funds
borrowed by Landlord, whether secured or unsecured and all payments of base rent
(but not taxes or operating expenses) under any ground lease or other underlying
lease of all or any portion of the Project;
(d) depreciation of the Project (except for capital improvements,
the cost of which are includable in Operating Expenses);
(e) Taxes to be paid directly by Tenant, unless not actually paid
by Tenant;
(f) salaries, wages, benefits and other compensation paid to
officers and employees of Landlord who are not assigned in whole or in part to
the operation, management, maintenance or repair of the Project;
(g) general organizational, administrative and overhead costs
relating to maintaining Landlord's existence, either as a corporation,
partnership, or other entity, including general corporate, legal and accounting
expenses;
(h) costs (including attorneys' fees and costs of settlement,
judgments and payments in lieu thereof) incurred in connection with disputes
with prospective tenants, and costs and expenses, including legal fees, incurred
in connection with negotiations or disputes with employees, consultants,
management agents, leasing agents, purchasers or mortgagees of the Building;
(i) costs incurred by Landlord due to the violation by Landlord,
its employees, agents or contractors of any Legal Requirement (as defined in
Section 7);
(j) penalties, fines or interest incurred as a result of
Landlord's inability or failure to make payment of Taxes and/or to file any tax
or informational returns when due, or from Landlord's failure to make any
payment of Taxes required to be made by Landlord hereunder before delinquency;
(k) overhead and profit increment paid to Landlord or to
subsidiaries or affiliates of Landlord for goods and/or services in or to the
Project to the extent the same exceeds the costs of such goods and/or services
rendered by unaffiliated third parties on a competitive basis;
(l) costs of Landlord's charitable or political contributions, or
of fine art maintained at the Project;
00 XXXXXXXX XXXXXX/XXXXXXXX THERAPEUTICS, INC.
PAGE 5
(m) costs incurred in the sale or refinancing of the Project;
(n) advertising and promotional expenditures;
(o) costs arising from latent defects or repair thereof, unless
any such repair is necessitated solely as a result of Tenant's particular use of
the Premises or the Project;
(p) net income taxes of Landlord or the owner of any interest in
the Project, franchise, capital stock, gift, estate or inheritance taxes or any
federal, state or local documentary taxes imposed against the Project or any
portion thereof or interest therein; and
(q) any expenses otherwise includable within Operating Expenses to
the extent actually reimbursed by persons other than Tenant in accordance with
this Lease.
Within 90 days after the end of each calendar year (or such longer
period as may be reasonably required), Landlord shall furnish to Tenant a
statement (an "ANNUAL STATEMENT") showing in reasonable detail: (a) the total of
actual Operating Expenses for the previous calendar year, and (b) the total of
Tenant's payments in respect of Operating Expenses for such year. If actual
Operating Expenses for such year exceed Tenant's payments of Operating Expenses
for such year, the excess shall be due and payable by Tenant as Rent within 30
days after delivery of such Annual Statement to Tenant. If Tenant's payments of
Operating Expenses for such year exceed actual Operating Expenses for such year
Landlord shall pay the excess to Tenant within 30 days after delivery of such
Annual Statement, except that after the expiration, or earlier termination of
the Term or if Tenant is delinquent in its obligation to pay Rent, Landlord
shall pay the excess to Tenant after deducting all other amounts due Landlord.
The Annual Statement shall be final and binding upon Tenant unless
Tenant, within 30 days after Tenant's receipt thereof, shall contest any item
therein by giving written notice to Landlord, specifying each item contested and
the reason therefor. If, during such 30 day period, Tenant reasonably and in
good faith questions or contests the accuracy of Landlord's statement of
Tenant's Share of Operating Expenses, Landlord will provide Tenant with access
to Landlord's books and records relating to the operation of the Project and
such information as Landlord reasonably determines to be responsive to Tenant's
questions (the "EXPENSE INFORMATION"). If after Tenant's review of such Expense
Information, Landlord and Tenant cannot agree upon the amount of Tenant's Share
of Operating Expenses, then Tenant shall have the right to have an independent
public accounting firm selected by Tenant from among the 5 largest in the United
States, working pursuant to a fee arrangement other than a contingent fee (at
Tenant's sole cost and expense) and approved by Landlord (which approval shall
not be unreasonably withheld or delayed), audit and/or review the Expense
Information for the year in question (the "INDEPENDENT REVIEW"). The results of
any such Independent Review shall be binding on Landlord and Tenant. If the
Independent Review shows that the payments actually made by Tenant with respect
to Operating Expenses for the calendar year in question exceeded Tenant's Share
of Operating Expenses for such calendar year, Landlord shall at Landlord's
option either (i) credit the excess amount to the next succeeding installments
of estimated Operating Expenses or (ii) pay the excess to Tenant within 30 days
after delivery of such statement, except that after the expiration or earlier
termination of this Lease or if Tenant is delinquent in its obligation to pay
Rent, Landlord shall pay the excess to Tenant after deducting all other amounts
due Landlord. If the Independent Review shows that Tenant's payments with
respect to Operating Expenses for such calendar year were less than Tenant's
Share of Operating Expenses for the calendar year, Tenant shall pay the
deficiency to Landlord within 30 days after delivery of such statement. If the
Independent Review shows that Tenant has overpaid with respect to Operating
Expenses by more than 5% then Landlord shall reimburse Tenant for all costs
incurred by Tenant for the Independent Review. Operating Expenses for the
calendar years in which the Term of this Lease begins and ends shall be
prorated.
Base Rent, Operating Expenses and all other amounts payable by Tenant
to Landlord hereunder are collectively referred to herein as "RENT."
6. SECURITY DEPOSIT. Tenant shall deposit with Landlord, upon
delivery of an executed copy of this Lease to Landlord, a security deposit (the
"SECURITY DEPOSIT") for the performance of all of Tenant's obligations hereunder
in the amount set forth in the Basic Lease Provisions, which Security Deposit
shall be in the form of an unconditional and irrevocable letter of credit (the
"LETTER OF CREDIT"): (i) in form and substance satisfactory to
00 XXXXXXXX XXXXXX/XXXXXXXX THERAPEUTICS, INC.
PAGE 6
Landlord, (ii) naming Landlord as beneficiary, (iii) expressly allowing Landlord
to draw upon it at any time from time to time by delivering to the issuer notice
that Landlord is entitled to draw thereunder, (iv) issued by an FDIC-insured
financial institution satisfactory to Landlord, and (v) redeemable by
presentation of a sight draft in the state of Landlord's choice. If Tenant does
not provide Landlord with a substitute Letter of Credit complying with all of
the requirements hereof at least 10 days before the stated expiration date of
any then current Letter of Credit, Landlord shall have the right to draw the
full amount of the current Letter of Credit and hold the funds drawn in cash
without obligation for interest thereon as the Security Deposit. The Security
Deposit shall be held by Landlord as security for the performance of Tenant's
obligations under this Lease. The Security Deposit is not an advance rental
deposit or a measure of Landlord's damages in case of Tenant's default. Upon
each occurrence of a Default (as defined in Section 20), Landlord may use all or
any part of the Security Deposit to pay delinquent payments due under this
Lease, and the cost of any damage, injury, expense or liability caused by such
Default, without prejudice to any other remedy provided herein or provided by
law. Upon any such use of all or any portion of the Security Deposit, Tenant
shall pay Landlord on demand the amount that will restore the Security Deposit
to the amount set forth in the Basic Lease Provisions. Tenant hereby waives the
provisions of any law, now or hereafter in force, which provide that Landlord
may claim from a security deposit only those sums reasonably necessary to remedy
defaults in the payment of Rent, to repair damage caused by Tenant or to clean
the Premises, it being agreed that Landlord may, in addition, claim those sums
reasonably necessary to compensate Landlord for any direct or actual loss or
damage arising from a Default hereunder. Upon bankruptcy or other
debtor-creditor proceedings against Tenant, the Security Deposit shall be deemed
to be applied first to the payment of Rent and other charges due Landlord for
periods prior to the filing of such proceedings. Upon any such use of all or any
portion of the Security Deposit, Tenant shall, within 5 days after demand from
Landlord, restore the Security Deposit to its original amount. If Tenant shall
fully perform every provision of this Lease to be performed by Tenant, the
Security Deposit, or any balance thereof (ie., after deducting therefrom all
amounts to which Landlord is entitled under the provisions of this Lease), shall
be returned to Tenant (or, at Landlord's option, to the last assignee of
Tenant's interest hereunder) within 90 days after the expiration or earlier
termination of this Lease.
If Landlord transfers its interest in the Project or this Lease,
Landlord shall either (a) transfer any Security Deposit then held by Landlord to
a person or entity assuming Landlord's obligations under this Section 6, or (b)
return to Tenant any Security Deposit then held by Landlord and remaining after
the deductions permitted herein. Upon such transfer to such transferee or the
return of the Security Deposit to Tenant, Landlord shall have no further
obligation with respect to the Security Deposit, and Tenant's right to the
return of the Security Deposit shall apply solely against Landlord's transferee.
The Security Deposit is not an advance rental deposit or a measure of Landlord's
damages in case of Tenant's default. Landlord's obligation respecting the
Security Deposit is that of a debtor, not a trustee, and no interest shall
accrue thereon.
If at any time during the Term of this Lease Tenant's stock shall be
listed on either the New York Stock Exchange or the NASDAQ stock market (the
"REDUCTION REQUIREMENT"), then the Security Deposit shall be reduced to an
amount equal to two months then applicable monthly Base Rent (the "REDUCED
SECURITY DEPOSIT"). If Tenant provides Landlord with written evidence reasonably
satisfactory to Landlord Tenant has satisfied the Reduction Requirement, then
Landlord shall return the unapplied portion of the Security Deposit then held by
Landlord, less the Reduced Security Deposit, to Tenant within 60 days of
Tenant's delivery of such written evidence. If Landlord returns to Tenant any
portion of the Security Deposit in accordance with this Section, then from and
after the date such monies are returned to Tenant, the "SECURITY DEPOSIT" shall
be deemed to be the Reduced Security Deposit for all purposes of this Lease.
The Reduced Security Deposit shall be increased to an amount equal to
four months then applicable monthly Base Rent in accordance with the terms of
this Section if (i) Tenant is in Default hereunder, or (ii) Tenant fails at any
time after reduction of the Security Deposit to continue to meet the Reduction
Requirement. Landlord shall have the right (not to be exercised more than 2
times per calendar year) to request written evidence from Tenant that Tenant
continues to meet the Reduction Requirement. Such increased Security Deposit
shall be paid to Landlord within 10 days of Landlord's written demand, in the
case of Tenant's Default under the Lease, or within 10 days of Landlord's
written demand, in the case of Tenant's failure to meet the Reduction
Requirement. If Tenant is required to increase the Reduced Security Deposit in
accordance with this Section, then from and after the date such monies are
deposited with Landlord, the "SECURITY DEPOSIT" shall be deemed to be the amount
then held by Landlord hereunder.
00 XXXXXXXX XXXXXX/XXXXXXXX THERAPEUTICS, INC.
PAGE 7
7. USE. The Premises shall be used solely for the Permitted Use
set forth in the Basic Lease Provisions, and in compliance with all laws,
orders, judgments, ordinances, regulations, codes, directives, permits,
licenses, covenants and restrictions now or hereafter applicable to the
Premises, and to the use and occupancy thereof, including, without limitation,
the Americans With Disabilities Act, 42 U.S.C. ss. 12101, et seq. (together with
the regulations promulgated pursuant thereto, "ADA") (collectively, "LEGAL
REQUIREMENTS" and each, a "LEGAL REQUIREMENT"). Tenant shall, upon 5 days'
written notice from Landlord, discontinue any use of the Premises which is
declared by any Governmental Authority (as defined in Section 9) having
jurisdiction to be a violation of a Legal Requirement. Tenant will not use or
permit the Premises or the Project to be used for any purpose or in any manner
that would void Tenant's or Landlord's insurance, increase the insurance risk,
or cause the disallowance of any sprinkler or other credits. Tenant shall not
permit any part of the Premises to be used as a "place of public accommodation",
as defined in the ADA or any similar legal requirement. Tenant shall reimburse
Landlord promptly upon demand for any additional premium charged for any such
insurance policy by reason of Tenant's failure to comply with the provisions of
this Section or otherwise caused by Tenant's use and/or occupancy of the
Premises. Tenant will use the Premises in a careful, safe and proper manner and
will not commit or permit waste, overload the floor or structure of the
Premises, subject the Premises to use that would damage the Premises or obstruct
or interfere with the rights of Landlord, including conducting or giving notice
of any auction, liquidation, or going out of business sale on the Premises, or
using or allowing the Premises to be used for any unlawful purpose. Tenant shall
cause any equipment or machinery to be installed in the Premises so as to
reasonably prevent sounds or vibrations from the Premises from extending beyond
the Project. Except as may be provided under the Work Letter, Tenant shall not,
without the prior written consent of Landlord, use the Premises in any manner
which will require ventilation, air exchange, heating, gas, steam, electricity
or water beyond the existing capacity of the Project.
Notwithstanding the foregoing or any other provision of this Lease,
however, Tenant shall not be responsible, but shall reimburse Landlord as an
Operating Expense, for the cost of compliance with any such laws, regulations or
the like requiring (I) structural repairs or modifications, or (ii) repairs or
modifications to the utility or building service equipment, or (iii)
installation of new building service equipment, such as fire detection or
suppression equipment.
Landlord shall, as an Operating Expense (to the extent such Legal
Requirement is generally applicable to similar buildings in the area in which
the Project is located) or at Tenant's expense (to the extent such Legal
Requirement is applicable solely by reason of Tenant's particular use of the
Premises) make any alterations or modifications to the exterior of the Building
and elsewhere at the Project that are required by Legal Requirements, including
the ADA. Tenant, at its sole expense, shall make any alterations or
modifications to the interior of the Premises that are required by Legal
Requirements (including, without limitation, compliance of the Premises with the
ADA). Notwithstanding any other provision herein to the contrary, Tenant shall
be responsible for any and all demands, claims, liabilities, losses, costs,
expenses, actions, causes of action, damages or judgments, and all reasonable
expenses incurred in investigating or resisting the same (including, without
limitation, reasonable attorneys' fees, charges and disbursements and costs of
suit) (collectively, "CLAIMS") arising out of or in connection with Legal
Requirements, and Tenant shall indemnify, defend, hold and save Landlord
harmless from and against any and all Claims arising out of or in connection
with any failure of the Premises to comply with any Legal Requirement during the
Early Occupancy Period, if any, and the Term.
8. HOLDING OVER. If, with Landlord's express written consent,
Tenant retains possession of the Premises after the termination of the Term, (i)
unless otherwise agreed in such written consent, such possession shall be
subject to immediate termination by Landlord at any time, (ii) all of the other
terms and provisions of this Lease (including, without limitation, the
adjustment of Base Rent pursuant to Section 4 hereof) shall remain in full force
and effect (excluding any expansion or renewal option or other similar right or
option) during such holdover period, (iii) Tenant shall continue to pay Base
Rent in the amount payable upon the date of the expiration or earlier
termination of this Lease or such other amount as Landlord may indicate, in
Landlord's sole and absolute discretion, in such written consent, and (iv) all
other payments shall continue under the terms of this Lease. If Tenant remains
in possession of the Premises after the expiration or earlier termination of the
Term without the express written consent of Landlord, (A) Tenant shall become a
tenant at sufferance upon the terms of this Lease except that the monthly rental
shall be equal to 150% of Rent in effect during the last 30 days of the Term,
and (B) Tenant shall be responsible for all direct and actual damages suffered
by Landlord resulting from or occasioned by Tenant's holding over. No holding
over by Tenant, whether with or without consent of Landlord, shall operate to
extend this Lease except as otherwise expressly provided, and this Section 8
shall not be construed as consent for Tenant to retain
00 XXXXXXXX XXXXXX/XXXXXXXX THERAPEUTICS, INC.
PAGE 8
possession of the Premises. Acceptance by Landlord of Rent after the expiration
of the Term or earlier termination of this Lease shall not result in a renewal
or reinstatement of this Lease.
9. TAXES. Landlord shall pay, as part of Operating Expenses, all
taxes, levies, assessments and governmental charges of any kind (collectively
referred to as "TAXES") imposed by any federal, state, regional, municipal,
local or other governmental authority or agency, including, without limitation,
quasi-public agencies (collectively, "GOVERNMENTAL AUTHORITY") during the Term,
including, without limitation, all Taxes: (i) imposed on or measured by or
based, in whole or in part, on rent payable to Landlord under this Lease and/or
from the rental by Landlord of the Project or any portion thereof, or (ii) based
on the square footage, assessed value or other measure or evaluation of any kind
of the Premises or the Project, or (iii) assessed or imposed by or on the
operation or maintenance of any portion of the Premises or the Project,
including parking, or (iv) assessed or imposed by, or at the direction of, or
resulting from statutes or regulations, or interpretations thereof, promulgated
by, any Governmental Authority, or (v) imposed as a license or other fee on
Landlord's business of leasing space in the Project. Landlord agrees to pay all
assessments and municipal betterments in the maximum number of installments
legally permitted, and Taxes for any period included in the Term hereof shall
include only the installments of such assessments and betterments attributable
to such period. Landlord may contest by appropriate legal proceedings the
amount, validity, or application of any Taxes or liens securing Taxes. Taxes
shall not include any net income taxes imposed on Landlord unless such net
income taxes are in substitution for any Taxes payable hereunder. If any such
Tax is levied or assessed directly against Tenant, then Tenant shall be
responsible for and shall pay the same at such times and in such manner as the
taxing authority shall require. Tenant shall pay, prior to delinquency, any and
all Taxes levied or assessed against any personal property or trade fixtures
placed by Tenant in the Premises, whether levied or assessed against Landlord or
Tenant. If any Taxes on Tenant's personal property or trade fixtures are levied
against Landlord or Landlord's property, or if the assessed valuation of the
Project is increased by a value attributable to improvements in or alterations
to the Premises, whether owned by Landlord or Tenant and whether or not affixed
to the real property so as to become a part thereof, higher than the base
valuation of the Project, Landlord shall have the right, but not the obligation,
to pay such Taxes. Landlord's determination of any excess assessed valuation
shall be binding and conclusive, absent manifest error. The amount of any such
payment by Landlord shall constitute Additional Rent due from Tenant to Landlord
immediately upon demand.
Notwithstanding anything to the contrary contained in this Lease, the following
shall be excluded from Taxes and shall be paid solely by Landlord: inheritance,
estate, succession, transfer, gift, franchise or capital stock tax, or any
income taxes arising out of or related to ownership and operation of
income-producing real estate, or any excise taxes imposed upon Landlord based
upon gross or net rentals or other income received by it, and assessments,
charges, taxes, rents, fees, levies, excises, license fees, permit fees,
inspection fees or other authorization fees or charges to the extent allocable
to or caused by the development or installation of on- or off-site improvements
or utilities (including without limitation street and intersection improvements,
roads, rights-of-way, lighting and signalization) necessary for the initial
development or construction of the Building, or any past, present or future
system development reimbursement schedule or sinking fund related to any of the
foregoing.
10. PARKING. Subject to all matters of record, Force Majeure, a
Taking (as defined in Section 19 below), Landlord's rules and regulations and
the exercise by Landlord of its rights hereunder, Tenant shall have the
exclusive right to use 100% of the parking spaces at the Project. Landlord shall
not be responsible for enforcing Tenant's parking rights against any third
parties. There are approximately 117 parking spaces at the Project as of the
date hereof.
11. UTILITIES, SERVICES.
Landlord shall provide, subject to the terms of this Section 11, water,
electricity, heat, light, power, telephone, sewer, and other utilities
(including gas and fire sprinklers to the extent the Project is plumbed for such
services), refuse and trash collection and janitorial services (collectively,
"UTILITIES"). Landlord shall pay, as Operating Expenses or subject to Tenant's
reimbursement obligation, for all Utilities used at the Project, all maintenance
charges for Utilities, and any storm sewer charges or other similar charges for
Utilities imposed by any Governmental Authority or Utility provider, and any
taxes, penalties, surcharges or similar charges thereon. Landlord may cause, at
Tenant's expense, any Utilities to be charged directly to Tenant by the
provider. Tenant shall pay directly to the Utility provider, prior to
delinquency, any Utilities and services which may be charged directly to Tenant
during the Early Occupancy Period, if any, or the Term. No interruption or
failure of Utilities, from any
00 XXXXXXXX XXXXXX/XXXXXXXX THERAPEUTICS, INC.
PAGE 9
cause whatsoever other than Landlord's willful misconduct, shall result in
eviction or constructive eviction of Tenant, termination of this Lease or the
abatement of Rent.
Landlord's sole obligation for either providing emergency generators or
providing emergency back-up power to Tenant shall be: (i) to provide emergency
generators with not less than the stated capacity of the emergency generators
located in the Building as of the Rent Commencement Date, and (ii) to contract
with a third party to maintain the emergency generators as per the
manufacturer's standard maintenance guidelines. Landlord shall provide evidence
to Tenant that Landlord has contracted with a third party reasonably acceptable
to Tenant to maintain the emergency generators as per the manufacturer's
standard maintenance guidelines as aforesaid. During any period of replacement,
repair or maintenance of the emergency generators when the emergency generators
are not operational, including any delays thereto due to the inability to obtain
parts or replacement equipment, Landlord shall have no obligation to provide
Tenant with an alternative back-up generator or generators or alternative
sources of back-up power. Tenant expressly acknowledges and agrees that Landlord
does not guaranty that such emergency generators will be operational at all
times or that emergency power will be available to the Premises when needed.
12. ALTERATIONS AND TENANT'S PROPERTY. Any alterations, additions,
or improvements made to the Premises by or on behalf of Tenant, including
additional locks or bolts of any kind or nature upon any doors or windows in the
Premises, but excluding installation, removal or realignment of furniture
systems (other than removal of furniture systems owned or paid for by Landlord)
or alterations, additions or improvements not involving any modifications to the
structure or connections (other then by ordinary plugs or jacks) to Building
Systems (as defined in Section 13) ("ALTERATIONS") shall be subject to
Landlord's prior written consent, which may be given or withheld in Landlord's
sole discretion if any such Alteration affects the structure or Building
Systems, but which shall otherwise not be unreasonably withheld or delayed. If
Landlord approves any Alterations, Landlord may impose such conditions on Tenant
in connection with the commencement, performance and completion of such
Alterations as Landlord may deem appropriate in Landlord's reasonable
discretion. Any request for approval shall be in writing, delivered not less
than 10 business days in advance of any proposed construction, and accompanied
by plans, specifications, bid proposals, work contracts and such other
information concerning the nature and cost of the alterations as may be
reasonably requested by Landlord, including the identities and mailing addresses
of all persons performing work or supplying materials. Landlord's right to
review plans and specifications and to monitor construction shall be solely for
its own benefit, and Landlord shall have no duty to ensure that such plans and
specifications or construction comply with applicable Legal Requirements. Tenant
shall cause, at its sole cost and expense, all Alterations to comply with
insurance requirements and with Legal Requirements and shall implement at its
sole cost and expense any alteration or modification required by legal
Requirements as a result of any Alterations. Tenant shall pay to Landlord, as
Additional Rent, on demand an amount equal to the actual costs incurred by
Landlord for plan review, coordination, scheduling and supervision (not to
exceed $2,500 per Alteration) in connection with any Alteration. Before Tenant
begins any Alteration, Landlord may post on and about the Premises notices of
non-responsibility pursuant to applicable law. Tenant shall reimburse Landlord
for, and indemnify and hold Landlord harmless from, any expense incurred by
Landlord by reason of faulty work done by Tenant or its contractors, delays
caused by such work, or inadequate cleanup.
Tenant shall furnish security or make other arrangements satisfactory
to Landlord to assure payment for the completion of all Alterations work free
and clear of liens, and shall provide (and cause each contractor or
subcontractor to provide) certificates of insurance for workers' compensation
and other coverage in amounts and from an insurance company satisfactory to
Landlord protecting Landlord against liability for personal injury or property
damage during construction. Upon completion of any Alterations, Tenant shall
deliver to Landlord: (i) sworn statements setting forth the names of all
contractors and subcontractors who did the work and final lien waivers from all
such contractors and subcontractors; and (ii) "as built" plans for any such
Alteration.
Other than (i) the items, if any, listed on EXHIBIT F attached hereto,
(ii) any items agreed by Landlord in writing to be included on EXHIBIT F in the
future, and (iii) any trade fixtures, machinery, equipment and other personal
property not paid for out of the TI Fund (as defined in the Work Letter) which
may be removed without material damage to the Premises, which damage shall be
repaired (including capping or terminating utility hook-ups behind walls) by
Tenant during the Term (collectively, "TENANT'S PROPERTY"), all property of any
kind paid for with the TI Fund, all Alterations, real property fixtures,
built-in machinery and equipment, built-in casework and cabinets and other
similar additions and improvements built into the Premises so as to become an
integral part of the Premises such as fume hoods which penetrate the roof or
plenum area, built-in cold rooms, built-in warm rooms, walk-in cold rooms,
00 XXXXXXXX XXXXXX/XXXXXXXX THERAPEUTICS, INC.
PAGE 10
walk-in warm rooms, deionized water systems, chillers, built-in plumbing,
electrical and mechanical equipment and systems, and any power generator and
transfer switch (collectively, "INSTALLATIONS") shall be and shall remain the
property of Landlord during the Term and following the expiration or earlier
termination of the Term, shall not be removed by Tenant at any time during the
Term and shall remain upon and be surrendered with the Premises as a part
thereof in accordance with Section 28 following the expiration or earlier
termination of this Lease; provided, however, that Landlord shall, at the time
its approval of such Installation is requested notify Tenant if it has elected
to cause Tenant to remove such Installation upon the expiration or earlier
termination of this Lease. If Landlord so elects, Tenant shall remove such
Installation upon the expiration or earlier termination of this Lease and
restore any damage caused by or occasioned as a result of such removal,
including, when removing any of Tenant's Property which was plumbed, wired or
otherwise connected to any of the Building Systems, capping off all such
connections behind the walls of the Premises and repairing any holes. During any
such restoration period, Tenant shall pay Rent to Landlord as provided herein as
if said space were otherwise occupied by Tenant.
13. LANDLORD'S REPAIRS. Landlord, as an Operating Expense, shall
maintain all of the structural, exterior, and parking areas of the Project,
including HVAC, plumbing, fire sprinklers, elevators and all other building
systems serving the Premises ("BUILDING SYSTEMS"), in good repair, reasonable
wear and tear and uninsured losses and damages caused by Tenant, or by any of
Tenant's agents, servants, employees, invitees and contractors (collectively,
"TENANT PARTIES") excluded. Losses and damages caused by Tenant or any Tenant
Party shall be repaired by Landlord, to the extent not covered by insurance, at
Tenant's sole cost and expense. Landlord reserves the right to stop Building
Systems services when necessary (i) by reason of accident or emergency, or (ii)
for planned repairs, alterations or improvements, which are, in the judgment of
Landlord, desirable or necessary to be made, until said repairs, alterations or
improvements shall have been completed. Landlord shall have no responsibility or
liability for failure to supply Building Systems services during any such period
of interruption; provided, however, that Landlord shall, except in case of
emergency, make a commercially reasonable effort to give Tenant 5 days' advance
notice of any planned stoppage of Building Systems services for routine
maintenance, repairs, alterations or improvements. Tenant shall promptly give
Landlord written notice of any repair required by Landlord pursuant to this
Section, after which Landlord shall have a reasonable opportunity to effect such
repair. Landlord shall not be liable for any failure to make any repairs or to
perform any maintenance unless such failure shall persist for an unreasonable
time after Tenant's written notice of the need for such repairs or maintenance.
Tenant waives its rights under any state or local law to terminate this Lease or
to make such repairs at Landlord's expense and agrees that the parties'
respective rights with respect to such matters shall be solely as set forth
herein. Repairs required as the result of fire, earthquake, flood, vandalism,
war, or similar cause of damage or destruction shall be controlled by Section
18.
14. TENANT'S REPAIRS. Subject to Section 13 hereof, Tenant, at its
expense, shall repair, replace and maintain in good condition all portions of
the Premises, including, without limitation, entries, doors, ceilings, interior
windows and interior walls. Such repair and replacement may include capital
expenditures and repairs whose benefit may extend beyond the Term. Should Tenant
fail to make any such repair or replacement or fail to maintain the Premises,
Landlord shall give Tenant notice of such failure. Tenant shall, during the Term
of this Lease, have all benefits under any construction warranties and
manufacturer's equipment warranties relating to equipment installed in the
Premises as more particularly described in the Work Letter. If Tenant fails to
commence cure of such failure within 10 days of Landlord's notice, and
thereafter diligently prosecute such cure to completion, Landlord may perform
such work and shall be reimbursed by Tenant within 10 days after demand
therefor; provided, however, that if such failure by Tenant creates or could
create an emergency, Landlord may immediately commence cure of such failure and
shall thereafter be entitled to recover the costs of such cure from Tenant.
Subject to Sections 17 and 18, Tenant shall bear the full uninsured cost of any
repair or replacement to any part of the Project that results from damage caused
by Tenant or any Tenant Party.
15. MECHANIC'S LIENS. Tenant shall discharge, by bond or
otherwise, any mechanic's lien filed against the Premises or against the Project
for work claimed to have been done for, or materials claimed to have been
furnished to, Tenant within 10 days after the filing thereof, at Tenant's sole
cost and shall otherwise keep the Premises and the Project free from any liens
arising out of work performed, materials furnished or obligations incurred by
Tenant. Should Tenant fail to discharge any lien described herein, Landlord
shall have the right, but not the obligation, to pay such claim or post a bond
or otherwise provide security to eliminate the lien as a claim against title to
the Project and the cost thereof shall be immediately due from Tenant as
Additional Rent. If Tenant shall lease or finance the acquisition of office
equipment, furnishings, or other personal property of a removable nature
00 XXXXXXXX XXXXXX/XXXXXXXX THERAPEUTICS, INC.
PAGE 11
utilized by Tenant in the operation of Tenant's business, Tenant warrants that
any Uniform Commercial Code Financing Statement filed as a matter of public
record by any lessor or creditor of Tenant will upon its face or by exhibit
thereto indicate that such Financing Statement is applicable only to removable
personal property of Tenant located within the Premises. In no event shall the
address of the Project be furnished on the statement without qualifying language
as to applicability of the lien only to removable personal property, located in
an identified suite held by Tenant.
16. INDEMNIFICATION. Tenant hereby indemnifies and agrees to
defend, save and hold Landlord harmless from and against any and all Claims for
injury or death to persons or damage to property occurring within or about the
Premises or the Project during the Early Occupancy Period, if any, and the Term,
arising directly or indirectly out use or occupancy of the Premises or the
Project or a breach or default by Tenant in the performance of any of its
obligations hereunder, unless caused solely by the willful misconduct or
negligence of Landlord. Landlord shall not be liable to Tenant for, and Tenant
assumes all risk of damage to, personal property (including, without limitation,
loss of records kept within the Premises or the Project). Tenant further hereby
irrevocably waives any and all Claims for injury to Tenant's business or loss of
income relating to any such damage or destruction of personal property
(including, without limitation, any loss of records), unless caused by the
willful misconduct or negligence of Landlord. Landlord shall not be liable for
any damages arising from any act, omission or neglect of any third party.
17. INSURANCE. Landlord shall maintain all risk property and, if
applicable, sprinkler damage insurance covering the full replacement cost of the
Project at the time such policy is purchased by Landlord, or such lesser
coverage amount as Landlord may elect provided such coverage amount is not less
than 90% of such full replacement cost. Landlord shall further procure and
maintain commercial general liability insurance with a single loss limit of not
less than $2,000,000 for bodily injury and property damage with respect to the
Project. Landlord may, but is not obligated to, maintain such other insurance
and additional coverages as it may deem necessary, including, but not limited
to, flood, environmental hazard and earthquake, loss or failure of building
equipment, errors and omissions, rental loss during the period of repair or
rebuilding, workers' compensation insurance and fidelity bonds for employees
employed to perform services and insurance for any improvements installed by
Tenant or which are in addition to the standard improvements customarily
furnished by Landlord without regard to whether or not such are made a part of
the Project. All such insurance shall be included as part of the Operating
Expenses. The Project may be included in a blanket policy (in which case the
cost of such insurance allocable to the Project will be determined by Landlord
based upon the insurer's cost calculations).
Tenant, at its sole cost and expense, shall maintain during the Early
Occupancy Period, if any, and the Term: all risk property insurance with
business interruption and extra expense coverage, covering the full replacement
cost of all property and improvements installed or placed in the Premises by
Tenant at Tenant's expense; workers' compensation insurance with no less than
the minimum limits required by law; employer's liability insurance with such
limits as required by law; commercial general liability insurance, with a
minimum limit of not less than $2,000,000 per occurrence for bodily injury and
property damage with respect to the Premises and pollution legal liability
insurance with a minimum limit of not less than $2,000,000 per occurrence. The
commercial general liability insurance policy shall name Landlord, its officers,
directors, employees, managers, agents, invitees and contractors (collectively,
"LANDLORD PARTIES"), as additional insureds. The commercial general liability
and pollution legal liability insurance policies shall insure on an occurrence
and not a claims-made basis; shall be issued by insurance companies which have a
rating of not less than policyholder rating of A and financial category rating
of at least Class X in "Best's Insurance Guide"; shall not be cancelable for
nonpayment of premium unless 30 days prior written notice shall have been given
to Landlord from the insurer; contain a hostile fire endorsement and a
contractual liability endorsement; and provide primary coverage to Landlord (any
policy issued to Landlord providing duplicate or similar coverage shall be
deemed excess over Tenant's policies). Copies of such policies (if requested by
Landlord), or certificates of insurance showing the limits of coverage required
hereunder and showing Landlord as an additional insured, along with reasonable
evidence of the payment of premiums for the applicable period, shall be
delivered to Landlord by Tenant upon commencement of the Early Occupancy Period,
if any, or the Term and upon each renewal of said insurance. Tenant's policy may
be a "blanket policy" with an aggregate per location endorsement which
specifically provides that the amount of insurance shall not be prejudiced by
other losses covered by the policy. Tenant shall, at least 5 days prior to the
expiration of such policies, furnish Landlord with renewal certificates.
00 XXXXXXXX XXXXXX/XXXXXXXX THERAPEUTICS, INC.
PAGE 12
In each instance where insurance is to name Landlord as an additional
insured, Tenant shall upon written request of Landlord also designate and
furnish certificates so evidencing Landlord as additional insured to: (i) any
lender of Landlord holding a security interest in the Project or any portion
thereof, (ii) the Landlord under any Lease wherein Landlord is tenant of the
real property on which the Project is located, if the interest of Landlord is or
shall become that of a tenant under a ground or other underlying Lease rather
than that of a fee owner, and/or (iii) any management company retained by
Landlord to manage the Project.
The property insurance obtained by Landlord and Tenant shall include a
waiver of subrogation by the insurers and all rights based upon an assignment
from its insured, against Landlord or Tenant, and their respective officers,
directors, employees, managers, agents, invitees and contractors ("RELATED
PARTIES"), in connection with any loss or damage thereby insured against.
Neither party nor its respective Related Parties shall be liable to the other
for loss or damage caused by any risk insured against under property insurance
required to be maintained hereunder, and each party waives any claims against
the other party, and its respective Related Parties, for such loss or damage.
The failure of a party to insure its property shall not void this waiver.
Landlord and its respective Related Parties shall not be liable for, and Tenant
hereby waives all claims against such parties for, business interruption and
losses occasioned thereby sustained by Tenant or any person claiming through
Tenant resulting from any accident or occurrence in or upon the Premises or the
Project from any cause whatsoever. If the foregoing waivers shall contravene any
law with respect to exculpatory agreements, the liability of Landlord or Tenant
shall be deemed not released but shall be secondary to the other's insurer.
Landlord may require insurance policy limits to be raised to conform
with requirements of Landlord's lender and/or to bring coverage limits to levels
then being generally required of new tenants of similar buildings in the
Lexington, Massachusetts area.
18. RESTORATION. If, at any time during the Early Occupancy
Period, if any, or the Term, the Project or the Premises are damaged or
destroyed by a fire or other insured casualty, Landlord shall notify Tenant
within 60 days after discovery of such damage as to the amount of time Landlord
reasonably estimates it will take to restore the Project or the Premises, as
applicable (the "RESTORATION PERIOD"). If the Restoration Period is estimated to
exceed 9 months (the "MAXIMUM RESTORATION PERIOD"), Landlord may, in such
notice, elect to terminate this Lease as of the date that is 75 days after the
date of discovery of such damage or destruction. Unless Landlord so elects to
terminate this Lease, Landlord shall, subject to receipt of sufficient insurance
proceeds (with any deductible to be treated as a current Operating Expense),
promptly restore the Premises (excluding the improvements installed by Tenant or
by Landlord and paid for by Tenant), subject to delays arising from the
collection of insurance proceeds, from Force Majeure events or as needed to
obtain any license, clearance or other authorization of any kind required to
enter into and restore the Premises issued by any Governmental Authority having
jurisdiction over the use, storage, handling, treatment, generation, release,
disposal, removal or remediation of Hazardous Materials (as defined in Section
30) in, on or about the Premises (collectively referred to herein as "HAZARDOUS
MATERIALS CLEARANCES"); provided, however, that if repair or restoration of the
Premises is not substantially complete as of the end of the Maximum Restoration
Period or, if longer, the Restoration Period, Landlord may, in its sole and
absolute discretion, elect not to proceed with such repair and restoration, in
which event Landlord shall be relieved of its obligation to make such repairs or
restoration and this Lease shall terminate as of the date that is 75 days after
the later of: (i) discovery of such damage or destruction, or (ii) the date all
required Hazardous Materials Clearances are obtained, but Landlord shall retain
any Rent paid and the right to any Rent payable by Tenant prior to such election
by Landlord or Tenant.
Tenant, at its expense, shall promptly perform, subject to delays
arising from the collection of insurance proceeds, from Force Majeure (as
defined in Section 34) events or to obtain Hazardous Material Clearances, all
repairs or restoration not required to be done by Landlord and shall promptly
re-enter the Premises and commence doing business in accordance with this Lease.
Notwithstanding the foregoing, Landlord may terminate this Lease if the Premises
are damaged during the last Lease Year of the Term and Landlord reasonably
estimates that it will take more than 2 months to repair such damage, or if
insurance proceeds are not available for such restoration. Rent shall be abated
from the date all required Hazardous Material Clearances are obtained until the
Premises are repaired and restored, in the proportion which the area of the
Premises, if any, which is not usable by Tenant bears to the total area of the
Premises, unless Landlord provides Tenant with other space during the period of
repair that is suitable for the temporary conduct of Tenant's business. Such
abatement shall be the sole remedy of Tenant, and except as provided in this
Section 18, Tenant waives any right to terminate the Lease by reason of damage
or casualty loss.
00 XXXXXXXX XXXXXX/XXXXXXXX THERAPEUTICS, INC.
PAGE 13
If (a) the Premises are materially damaged by fire or other casualty
during the last Lease Year of the Term and Tenant has not exercised its
Extension Right under this Lease, or (b) the Premises are materially damaged by
fire or other casualty and not restored (including the Tenant Improvements)
within the Maximum Restoration Period, then Tenant shall have the right,
exercisable by written notice to Landlord delivered within 30 days after the
date of such fire or other casualty or the expiration of such Maximum
Restoration Period, as applicable, to terminate this Lease as of the date that
is the later of (i) the date set forth in such notice of Tenant's election to
terminate this Lease as aforesaid, and (ii) the date on which Landlord receives
the last of the Hazardous Materials Clearances which Tenant is obligated to
provide hereunder, but Landlord shall retain any Rent paid and the right to any
Rent payable by Tenant prior to such election by Tenant to terminate this Lease.
The provisions of this Lease, including this Section 18, constitute an
express agreement between Landlord and Tenant with respect to any and all damage
to, or destruction of, all or any part of the Premises, or any other portion of
the Project, and any statute or regulation which is now or may hereafter be in
effect shall have no application to this Lease or any damage or destruction to
all or any part of the Premises or any other portion of the Project, the parties
hereto expressly agreeing that this Section 18 sets forth their entire
understanding and agreement with respect to such matters.
19. CONDEMNATION. If the whole or any material part of the
Premises or the Project is taken for any public or quasi-public use under
governmental law, ordinance, or regulation, or by right of eminent domain, or by
private purchase in lieu thereof (a "TAKING" or "TAKEN"), and the Taking would
in Landlord's reasonable judgment either prevent or materially interfere with
Tenant's use of the Premises or materially interfere with or impair Landlord's
ownership or operation of the Project, then upon written notice by Landlord this
Lease shall terminate and Rent shall be apportioned as of said date. If part of
the Premises shall be Taken, and this Lease is not terminated as provided above,
Landlord shall promptly restore the Premises and the Project as nearly as is
commercially reasonable under the circumstances to their condition prior to such
partial Taking and the rentable square footage of the Building, the rentable
square footage of the Premises, Operating Expenses and the Rent payable
hereunder during the unexpired Term shall be reduced to such extent as may be
fair and reasonable under the circumstances. Upon any such Taking, Landlord
shall be entitled to receive the entire price or award from any such Taking
without any payment to Tenant, and Tenant hereby assigns to Landlord Tenant's
interest, if any, in such award. Tenant shall have the right, to the extent that
same shall not diminish Landlord's award, to make a separate claim against the
condemning authority (but not Landlord) for such compensation as may be
separately awarded or recoverable by Tenant for moving expenses and damage to
Tenant's trade fixtures, if a separate award for such items is made to Tenant.
Tenant hereby waives any and all rights it might otherwise have pursuant to any
provision of state law to terminate this Lease upon a partial Taking of the
Premises or the Project.
20. EVENTS OF DEFAULT. Each of the following events shall be a
default ("DEFAULT") by Tenant under this Lease:
(a) PAYMENT DEFAULTS. Tenant shall fail to pay any installment of
Rent or any other payment hereunder within five (5) business days after written
notice is received from Landlord that such installment is overdue; provided,
however, that Landlord shall not be required to give such a notice more than
once during any calendar year during the Term hereof, including any Extension
Term (as hereinafter defined).
(b) INSURANCE. Any insurance required to be maintained by Tenant
pursuant to this Lease shall be canceled or terminated or shall expire or shall
be reduced or materially changed, or Landlord shall receive a notice of
nonrenewal of any such insurance and Tenant shall fail to obtain replacement
insurance at least 20 days before the expiration of the current coverage.
(c) ABANDONMENT. Tenant shall abandon the Premises and shall fail
to (I) prepare and comply with a Surrender Plan as more particularly described
in Section 28 hereof prior to vacating the Premises, and (ii) pay all Rent and
other amounts due hereunder or take reasonable precautions to protect the
Premises from vandalism or waste.
(d) IMPROPER TRANSFER. Tenant shall assign, sublease or otherwise
transfer or attempt to transfer all or any portion of Tenant's interest in this
Lease or the Premises except as expressly permitted herein, or Tenant's
00 XXXXXXXX XXXXXX/XXXXXXXX THERAPEUTICS, INC.
PAGE 14
interest in this Lease shall be attached, executed upon, or otherwise judicially
seized and such action is not released within 90 days of the action.
(e) LIENS. Tenant shall fail to discharge or otherwise obtain the
release of any lien placed upon the Premises in violation of this Lease within
10 days after any such lien is filed against the Premises.
(f) INSOLVENCY EVENTS. Tenant or any guarantor or surety of
Tenant's obligations hereunder shall: (A) make a general assignment for the
benefit of creditors; (B) commence any case, proceeding or other action seeking
to have an order for relief entered on its behalf as a debtor or to adjudicate
it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment,
liquidation, dissolution or composition of it or its debts or seeking
appointment of a receiver, trustee, custodian or other similar official for it
or for all or of any substantial part of its property (collectively a
"PROCEEDING FOR RELIEF"); (C) become the subject of any Proceeding for Relief
which is not dismissed within 90 days of its filing or entry; or (D) die or
suffer a legal disability (if Tenant, guarantor, or surety is an individual) or
be dissolved or otherwise fail to maintain its legal existence (if Tenant,
guarantor or surety is a corporation, partnership or other entity).
(g) ESTOPPEL CERTIFICATE OR SUBORDINATION AGREEMENT. Tenant fails
to execute any document required from Tenant under Sections 23 or 27 within 5
days after a second notice requesting such document.
(h) OTHER DEFAULTS. Tenant shall fail to comply with any provision
of this Lease other than those specifically referred to in this Section 20, and,
except as otherwise expressly provided herein, such failure shall continue for a
period of 20 days after written notice thereof from Landlord to Tenant.
Any notice given under Section 20(h) hereof shall: (i) specify the alleged
default, (ii) demand that Tenant cure such default, (iii) be in lieu of, and not
in addition to, or shall be deemed to be, any notice required under any
provision of applicable law, and (iv) not be deemed a forfeiture or a
termination of this Lease unless Landlord elects otherwise in such notice;
provided that if the nature of Tenant's default pursuant to Section 20(h) is
such that it cannot be cured by the payment of money and reasonably requires
more than 20 days to cure, then Tenant shall not be deemed to be in default if
Tenant commences such cure within said 20 day period and thereafter diligently
prosecutes the same to completion; provided, however, that such cure shall be
completed no later than 45 days from the date of Landlord's notice.
21. LANDLORD'S REMEDIES.
(a) PAYMENT BY LANDLORD; INTEREST. Upon a Default by Tenant
hereunder, Landlord may, without waiving or releasing any obligation of Tenant
hereunder, make such payment or perform such act. All sums so paid or incurred
by Landlord, together with interest thereon, from the date such sums were paid
or incurred, at the annual rate equal to 12% per annum or the highest rate
permitted by law (the "DEFAULT RATE"), whichever is less, shall be payable to
Landlord on demand as Additional Rent. Nothing herein shall be construed to
create or impose a duty on Landlord to mitigate any damages resulting from
Tenant's Default hereunder.
(b) LATE PAYMENT RENT. Late payment by Tenant to Landlord of Rent
and other sums due will cause Landlord to incur costs not contemplated by this
Lease, the exact amount of which will be extremely difficult and impracticable
to ascertain. Such costs include, but are not limited to, processing and
accounting charges and late charges which may be imposed on Landlord under any
Mortgage covering the Premises. Therefore, if any installment of Rent due from
Tenant is not received by Landlord within 5 days after the date such payment is
due, Tenant shall pay to Landlord, without the necessity of any notice from
Landlord, an additional sum equal to 6% of the overdue Rent as a late charge.
The parties agree that this late charge represents a fair and reasonable
estimate of the costs Landlord will incur by reason of late payment by Tenant.
In addition to the late charge, Rent not paid when due shall bear interest at
the Default Rate from the 5th day after the date due until paid.
(c) REMEDIES. Upon the occurrence of a Default, Landlord, at its
option, without further notice or demand to Tenant, shall have in addition to
all other rights and remedies provided in this Lease, at law or in equity, the
option to pursue any one or more of the following remedies, each and all of
which shall be cumulative and nonexclusive, without any notice or demand
whatsoever.
00 XXXXXXXX XXXXXX/XXXXXXXX THERAPEUTICS, INC.
PAGE 15
(i) Terminate this Lease, or at Landlord's option,
Tenant's right to possession only, in which event Tenant shall
immediately surrender the Premises to Landlord, and if Tenant fails to
do so, Landlord may, without prejudice to any other remedy which it may
have for possession or arrearages in rent, enter upon and take
possession of the Premises and expel or remove Tenant and any other
person who may be occupying the Premises or any part thereof, without
being liable for prosecution or any claim or damages therefor;
(ii) Upon any termination of this Lease, whether pursuant
to the foregoing Section 21(c)(i) or otherwise, Landlord may recover
from Tenant the following:
(A) The worth at the time of award of any unpaid
rent which has been earned at the time of such termination;
plus
(B) The worth at the time of award of the amount
by which the unpaid rent which would have been earned after
termination until the time of award exceeds the amount of such
rental loss that Tenant proves could have been reasonably
avoided; plus
(C) The worth at the time of award of the amount
by which the unpaid rent for the balance of the Term after the
time of award exceeds the amount of such rental loss that
Tenant proves could have been reasonably avoided; plus
(D) Any other amount necessary to compensate
Landlord for all the detriment proximately caused by Tenant's
failure to perform its obligations under this Lease or which
in the ordinary course of things would be likely to result
therefrom, specifically including, but not limited to,
brokerage commissions and advertising expenses incurred,
expenses of remodeling the Premises or any portion thereof for
a new tenant, whether for the same or a different use, and any
special concessions made to obtain a new tenant; and
(E) At Landlord's election, such other amounts in
addition to or in lieu of the foregoing as may be permitted
from time to time by applicable law.
The term "RENT" as used in this Section 21 shall be deemed to be and to
mean all sums of every nature required to be paid by Tenant pursuant to
the terms of this Lease, whether to Landlord or to others. As used in
Sections 21(c)(ii) (A) and (B), above, the "WORTH AT THE TIME OF AWARD"
shall be computed by allowing interest at the Default Rate. As used in
Section 21(c)(ii)(C) above, the "WORTH AT THE TIME OF AWARD" shall be
computed by discounting such amount at the discount rate of the Federal
Reserve Bank of San Francisco at the time of award plus 1%.
(iii) Landlord may continue this Lease in effect after
Tenant's Default and recover rent as it becomes due (Landlord and
Tenant hereby agreeing that Tenant has the right to sublet or assign
hereunder, subject only to reasonable limitations). Accordingly, if
Landlord does not elect to terminate this Lease following a Default by
Tenant, Landlord may, from time to time, without terminating this
Lease, enforce all of its rights and remedies hereunder, including the
right to recover all Rent as it becomes due.
(iv) Whether or not Landlord elects to terminate this
Lease following a Default by Tenant, Landlord shall have the right to
terminate any and all subleases, licenses, concessions or other
consensual arrangements for possession entered into by Tenant and
affecting the Premises or may, in Landlord's sole discretion, succeed
to Tenant's interest in such subleases, licenses, concessions or
arrangements. Upon Landlord's election to succeed to Tenant's interest
in any such subleases, licenses, concessions or arrangements, Tenant
shall, as of the date of notice by Landlord of such election, have no
further right to or interest in the rent or other consideration
receivable thereunder.
(v) Independent of the exercise of any other remedy of
Landlord hereunder or under applicable law, Landlord may conduct an
environmental test of the Premises as generally described in Section
30(d) hereof, at Tenant's expense.
00 XXXXXXXX XXXXXX/XXXXXXXX THERAPEUTICS, INC.
PAGE 16
(d) EFFECT OF EXERCISE. Exercise by Landlord of any remedies
hereunder or otherwise available shall not be deemed to be an acceptance of
surrender of the Premises and/or a termination of this Lease by Landlord, it
being understood that such surrender and/or termination can be effected only by
the express written agreement of Landlord and Tenant. Any law, usage, or custom
to the contrary notwithstanding, Landlord shall have the right at all times to
enforce the provisions of this Lease in strict accordance with the terms hereof;
and the failure of Landlord at any time to enforce its rights under this Lease
strictly in accordance with same shall not be construed as having created a
custom in any way or manner contrary to the specific terms, provisions, and
covenants of this Lease or as having modified the same and shall not be deemed a
waiver of Landlord's right to enforce one or more of its rights in connection
with any subsequent default. A receipt by Landlord of Rent or other payment with
knowledge of the breach of any covenant hereof shall not be deemed a waiver of
such breach, and no waiver by Landlord of any provision of this lease shall be
deemed to have been made unless expressed in writing and signed by Landlord. To
the greatest extent permitted by law, Tenant waives the service of notice of
Landlord's intention to re-enter, re-take or otherwise obtain possession of the
Premises as provided in any statute, or to institute legal proceedings to that
end, and also waives all right of redemption in case Tenant shall be
dispossessed by a judgment or by warrant of any court or judge. Any reletting of
the Premises or any portion thereof shall be on such terms and conditions as
Landlord in its sole discretion may determine. Landlord shall not be liable for,
nor shall Tenant's obligations hereunder be diminished because of, Landlord's
failure to relet the Premises or collect rent due in respect of such reletting
or otherwise to mitigate any damages arising by reason of Tenant's Default.
22. ASSIGNMENT AND SUBLETTING.
(a) GENERAL PROHIBITION. Without Landlord's prior written consent
subject to and on the conditions described in this Section 22, Tenant shall not,
directly or indirectly, voluntarily or by operation of law, assign this Lease or
sublease the Premises or any part thereof or mortgage, pledge, or hypothecate
its leasehold interest or grant any concession or license within the Premises,
and any attempt to do any of the foregoing shall be void and of no effect. If
Tenant is a corporation, partnership or limited liability company, the shares or
other ownership interests thereof which are not actively traded upon a stock
exchange or in the over-the-counter market, a transfer or series of transfers
whereby 50% or more of the issued and outstanding shares or other ownership
interests of such corporation are, or voting control is, transferred (but
excepting transfers upon deaths of individual owners) from a person or persons
or entity or entities which were owners thereof at time of execution of this
Lease to persons or entities who were not owners of shares or other ownership
interests of the corporation, partnership or limited liability company at time
of execution of this Lease, shall be deemed an assignment of this Lease
requiring the consent of Landlord as provided in this Section 22.
(b) LANDLORD APPROVAL OF CERTAIN TRANSFERS. Following the Rent
Commencement Date, if Tenant desires to assign, sublease, hypothecate or
otherwise transfer this Lease or sublet the Premises, other than pursuant to a
Permitted Assignment (as defined below), then at least 7 business days, but not
more than 45 business days, before the date Tenant desires the assignment or
sublease to be effective (the "ASSIGNMENT DATE"), Tenant shall give Landlord a
notice (the "ASSIGNMENT NOTICE") containing such information about the proposed
assignee or sublessee, including the proposed use of the Premises and any
Hazardous Materials proposed to be used, stored handled, treated, generated in
or released or disposed of from the Premises, the Assignment Date, any
relationship between Tenant and the proposed assignee or sublessee, and all
material terms and conditions of the proposed assignment or sublease, including
a copy of any proposed assignment or sublease in its final form, and such other
information as Landlord may deem reasonably necessary or appropriate to its
consideration whether to grant its consent. Landlord may, by giving written
notice to Tenant within 7 business days after receipt of the Assignment Notice:
(i) grant such consent, (ii) refuse such consent, in its reasonable discretion,
or (iv) terminate this Lease with respect to the space described in the
Assignment Notice as of the Assignment Date (an "ASSIGNMENT TERMINATION"). If
Landlord delivers notice of its election to exercise an Assignment Termination,
Tenant shall have the right to withdraw such Assignment Notice by written notice
to Landlord of such election within 5 business days after Landlord's notice
electing to exercise the Assignment Termination. If Tenant withdraws such
Assignment Notice, this Lease shall continue in full force and effect. If Tenant
does not withdraw such Assignment Notice, this Lease, and the term and estate
herein granted, shall terminate as of the Assignment Date with respect to the
space described in such Assignment Notice. No failure of Landlord to exercise
any such option to terminate this Lease, or to deliver a timely notice in
response to the Assignment Notice, shall be deemed to be Landlord's consent to
the proposed assignment, sublease or other transfer. Tenant shall reimburse
Landlord for all of Landlord's reasonable out-of-pocket expenses
00 XXXXXXXX XXXXXX/XXXXXXXX THERAPEUTICS, INC.
PAGE 17
in connection with its consideration of any Assignment Notice, up to a maximum
reimbursement of $2,500 per request.
(c) PERMITTED ASSIGNMENTS. Notwithstanding the foregoing, from and
after the Rent Commencement Date, Landlord's consent to an assignment of this
Lease or a subletting of any portion of the Premises to any entity controlling,
controlled by or under common control with Tenant shall not be required,
provided that Landlord shall have the right to approve the form of any such
sublease or assignment. In addition, Tenant shall have the right to assign this
Lease, upon 30 days prior written notice to Landlord but without obtaining
Landlord's prior written consent, to a corporation or other entity which is a
successor-in-interest to Tenant, by way of merger, consolidation or corporate
reorganization, or by the purchase of all or substantially all of the stock,
assets or the ownership interests of Tenant provided that (i) such merger or
consolidation, or such acquisition or assumption, as the case may be, is for a
good business purpose and not principally for the purpose of transferring the
Lease, and (ii) the net worth (as determined in accordance with generally
accepted accounting principles ("GAAP")) of the assignee is not less than the
net worth (as determined in accordance with GAAP) of Tenant as of the
Commencement Date, and (iii) such assignee shall agree in writing to assume all
of the terms, covenants and conditions of this Lease arising after the effective
date of the assignment (each of the transfers described in this Section 22(c) is
referred to herein as a "PERMITTED ASSIGNMENT"). Subject to the provisions of
Section 22(g) hereof, Landlord agrees that neither an initial public offering of
shares by Tenant, nor any private financing of Tenant by institutional investors
who regularly invest in private biotechnology companies, shall require
Landlord's consent.
(d) ADDITIONAL CONDITIONS. As a condition to any such assignment
or subletting, whether or not Landlord's consent is required, Landlord may
require:
(i) that any assignee or subtenant agree, in writing at
the time of such assignment or subletting, that if Landlord gives such
party notice that Tenant is in default under this Lease, such party
shall thereafter make all payments otherwise due Tenant directly to
Landlord, which payments will be received by Landlord without any
liability except to credit such payment against those due under the
lease, and any such third party shall agree to attorn to Landlord or
its successors and assigns should this lease be terminated for any
reason; provided, however, in no event shall Landlord or its successors
or assigns be obligated to accept such attornment; and
(ii) A list of Hazardous Materials, certified by the
proposed assignee or sublessee to be true and correct, which the
proposed assignee or sublessee intends to use, store, handle, treat,
generate in or release or dispose of from the Premises, together with
copies of all documents relating to such use, storage, handling,
treatment, generation, release or disposal of Hazardous Materials by
the proposed assignee or subtenant in the Premises or on the Project,
prior to the proposed assignment or subletting, including, without
limitation: permits; approvals; reports and correspondence; storage and
management plans; plans relating to the installation of any storage
tanks to be installed in or under the Project (provided, said
installation of tanks shall only be permitted after Landlord has given
its written consent to do so, which consent may be withheld in
Landlord's sole and absolute discretion); and all closure plans or any
other documents required by any and all federal, state and local
Governmental Authorities for any storage tanks installed in, on or
under the Project for the closure of any such tanks. Neither Tenant nor
any such proposed assignee or subtenant is required, however, to
provide Landlord with any portion(s) of the such documents containing
information of a proprietary nature which, in and of themselves, do not
contain a reference to any Hazardous Materials or hazardous activities.
(e) NO RELEASE OF TENANT, SHARING OF EXCESS RENTS. Notwithstanding
any assignment or subletting, Tenant and any guarantor or surety of Tenant's
obligations under this Lease shall at all times remain fully and primarily
responsible and liable for the payment of Rent and for compliance with all of
Tenant's other obligations under this Lease. If the Rent due and payable by a
sublessee or assignee (or a combination of the rental payable under such
sublease or assignment plus any bonus or other consideration therefor or
incident thereto in any form) exceeds the sum of the rental payable under this
Lease, (excluding however, any Rent payable under this Section) reasonable
improvement allowances or other economic concessions granted by Tenant to any
unrelated assignee or sublessee, and actual and reasonable brokerage fees,
advertising costs and legal costs directly related to and required pursuant to
the terms of any such sublease) ("EXCESS RENT"), then Tenant shall be bound and
obligated to pay Landlord as Additional Rent hereunder 50% of such Excess Rent
within 10 days following receipt thereof by
00 XXXXXXXX XXXXXX/XXXXXXXX THERAPEUTICS, INC.
PAGE 18
Tenant. If Tenant shall sublet the Premises or any part thereof, Tenant hereby
immediately and irrevocably assigns to Landlord, as security for Tenant's
obligations under this Lease, all rent from any such subletting, and Landlord as
assignee and as attorney-in-fact for Tenant, or a receiver for Tenant appointed
on Landlord's application, may collect such rent and apply it toward Tenant's
obligations under this Lease; except that, until the occurrence of a Default,
Tenant shall have the right to collect such rent.
(f) NO WAIVER. The consent by Landlord to an assignment or
subletting shall not relieve Tenant or any assignees of this lease or any
sublessees of the Premises from obtaining the consent of Landlord to any further
assignment or subletting nor shall it release Tenant or any assignee or
sublessee of Tenant from full and primary liability under the lease. The
acceptance of Rent hereunder, or the acceptance of performance of any other
term, covenant, or condition thereof, from any other person or entity shall not
be deemed to be a waiver of any of the provisions of this Lease or a consent to
any subletting, assignment or other transfer of the Premises.
(g) PRIOR CONDUCT OF PROPOSED TRANSFEREE. Notwithstanding any
other provision of this Section 22, if (i) the proposed assignee or sublessee of
Tenant has been required by any prior Landlord, lender or Governmental Authority
to take remedial action in connection with Hazardous Materials contaminating a
property, where the contamination resulted from such party's action or use of
the property in question, (ii) the proposed assignee or sublessee is subject to
an enforcement order issued by any Governmental Authority in connection with the
use, storage, handling, treatment, generation, release or disposal of Hazardous
Materials (including, without limitation, any order related to the failure to
make a required reporting to any Governmental Authority), or (iii) because of
the existence of a pre-existing environmental condition in the vicinity of or
underlying the Project, the risk that Landlord would be targeted as a
responsible party in connection with the remediation of such pre-existing
environmental condition would be materially increased or exacerbated by the
proposed use of Hazardous Materials by such proposed assignee or sublessee,
Landlord shall have the absolute right to refuse to consent to any assignment or
subletting to any such party.
23. ESTOPPEL CERTIFICATE. Either party shall, within 10 business
days of written notice from the other, execute, acknowledge and deliver a
statement in writing in any form reasonably requested by a proposed lender or
purchaser, (i) certifying that this Lease is unmodified and in full force and
effect (or, if modified, stating the nature of such modification and certifying
that this Lease as so modified is in full force and effect) and the dates to
which the rental and other charges are paid in advance, if any, (ii)
acknowledging that there are not any uncured defaults on the part of the
requesting hereunder, or specifying such defaults if any are claimed, and (iii)
setting forth such further information with respect to the status of this Lease
or the Premises as may be reasonably requested thereon. Any such statement may
be relied upon by any prospective purchaser or encumbrancer of all or any
portion of the real property of which the Premises are a part. Tenant's failure
to deliver such statement within such time shall, at the option of Landlord, be
conclusive upon Tenant that the Lease is in full force and effect and without
modification except as may be represented by Landlord in any certificate
prepared by Landlord and delivered to Tenant for execution.
24. QUIET ENJOYMENT. So long as Tenant shall perform all of the
covenants and agreements herein required to be performed by Tenant, Tenant
shall, subject to the terms of this Lease, at all times during the Term, have
peaceful and quiet enjoyment of the Premises against any person claiming by,
through or under Landlord.
25. PRORATIONS. All prorations required or permitted to be made
hereunder shall be made on the basis of a 360 day year and 30 day months.
26. RULES AND REGULATIONS. Tenant shall, at all times during the
Early Occupancy Period, if any, and the Term and any extension thereof, comply
with all reasonable rules and regulations at any time or from time to time
established by Landlord covering use of the Premises and the Project. The
current rules and regulations are attached hereto as EXHIBIT E. If there is any
conflict between said rules and regulations and other provisions of this Lease,
the terms and provisions of this Lease shall control.
27. SUBORDINATION. This Lease and Tenant's interest and rights
hereunder are hereby made and shall be subject and subordinate at all times to
the lien of any Mortgage now existing or hereafter created on or against the
Project or the Premises, and all amendments, restatements, renewals,
modifications, consolidations, refinancing, assignments and extensions thereof,
without the necessity of any further instrument or act on the part of Tenant;
00 XXXXXXXX XXXXXX/XXXXXXXX THERAPEUTICS, INC.
PAGE 19
provided, however that so long as there is no Default hereunder, Tenant's right
to possession of the Premises shall not be disturbed by the Holder of any such
Mortgage. Tenant agrees, at the election of the Holder of any such Mortgage, to
attorn to any such Holder. Tenant agrees upon demand to execute, acknowledge and
deliver such instruments, confirming such subordination, and such instruments of
attornment as shall be requested by any such Holder, provided any such
instruments contain appropriate non-disturbance provisions assuring Tenant's
quiet enjoyment of the Premises as set forth in Section 24 hereof.
Notwithstanding the foregoing, any such Holder may at any time subordinate its
Mortgage to this Lease, without Tenant's consent, by notice in writing to
Tenant, and thereupon this Lease shall be deemed prior to such Mortgage without
regard to their respective dates of execution, delivery or recording and in that
event such Holder shall have the same rights with respect to this Lease as
though this Lease had been executed prior to the execution, delivery and
recording of such Mortgage and had been assigned to such Holder. The term
"MORTGAGE" whenever used in this Lease shall be deemed to include deeds of
trust, security assignments and any other encumbrances, and any reference to the
"HOLDER" of a Mortgage shall be deemed to include the beneficiary under a deed
of trust.
28. SURRENDER. Upon the expiration of the Term or earlier
termination of Tenant's right of possession, Tenant shall surrender the Premises
and the Project to Landlord in the same condition as received, subject to any
Alterations or Installations permitted by Landlord to remain in the Premises,
free of Hazardous Materials brought upon, kept, used, stored, handled, treated,
generated in, or released or disposed of from, the Premises or the Project by
any person other than a Landlord Party (collectively, "TENANT HAZMAT
OPERATIONS") and released of all Hazardous Materials Clearances, broom clean,
ordinary wear and tear and casualty loss and condemnation covered by Sections 18
and 19 excepted. At least 3 months prior to the surrender of the Premises,
Tenant shall deliver to Landlord a narrative description of the actions proposed
(or required by any Governmental Authority) to be taken by Tenant in order to
surrender the Premises and the Project (including any Installations permitted by
Landlord to remain in the Premises) at the expiration or earlier termination of
the Term, free from any residual impact from the Tenant HazMat Operations and
otherwise released for unrestricted use and occupancy (the "SURRENDER PLAN").
Such Surrender Plan shall be accompanied by a current listing of (i) all
Hazardous Materials licenses and permits held by or on behalf of any Tenant
Party with respect to the Premises, and (ii) all Hazardous Materials used,
stored, handled, treated, generated, released or disposed of from the Premises
and/or the Project, and shall be subject to the review and approval of
Landlord's environmental consultant. In connection with the review and approval
of the Surrender Plan, upon the request of Landlord, Tenant shall deliver to
Landlord or its consultant such additional non-proprietary information
concerning Tenant HazMat Operations as Landlord shall request. On or before such
surrender, Tenant shall deliver to Landlord evidence that the approved Surrender
Plan shall have been satisfactorily completed and Landlord shall have the right,
subject to reimbursement at Tenant's expense as set forth below, to cause
Landlord's environmental consultant to inspect the Premises and the Project and
perform such additional procedures as may be deemed reasonably necessary to
confirm that the Premises and the Project are, as of the effective date of such
surrender or early termination of the Lease, free from any residual impact from
Tenant HazMat Operations. Tenant shall reimburse Landlord, as Additional Rent,
for the actual out-of pocket expense incurred by Landlord for Landlord's
environmental consultant to review and approve the Surrender Plan and to visit
the Premises and the Project and verify satisfactory completion of the same,
which cost shall not exceed $5,000. Landlord shall have the unrestricted right
to deliver such Surrender Plan and any report by Landlord's environmental
consultant with respect to the surrender of the Premises to third parties.
If Tenant shall fail to prepare or submit a Surrender Plan approved by
Landlord, or if Tenant shall fail to complete the approved Surrender Plan, or if
such Surrender Plan, whether or not approved by Landlord, shall fail to
adequately address any residual effect of Tenant HazMat Operations in, on or
about the Premises, Landlord shall have the right to take such actions as
Landlord may deem reasonable or appropriate to assure that the Premises and the
Project are surrendered free from any residual impact from Tenant HazMat
Operations, the cost of which actions shall be reimbursed by Tenant as
Additional Rent, without regard to the limitation set forth in the first
paragraph of this Section 28.
Tenant shall immediately return to Landlord all keys and/or access
cards to parking, the Project, restrooms or all or any portion of the Premises
furnished to or otherwise procured by Tenant. If any such access card or key is
lost, Tenant shall pay to Landlord, at Landlord's election, either the cost of
replacing such lost access card or key or the cost of reprogramming the access
security system in which such access card was used or changing the lock or locks
opened by such lost key. Any Tenant's Property, Alterations and property not so
removed by Tenant as permitted or required herein shall be deemed abandoned and
may be stored, removed, and disposed of by Landlord
00 XXXXXXXX XXXXXX/XXXXXXXX THERAPEUTICS, INC.
PAGE 20
at Tenant's expense, and Tenant waives all claims against Landlord for any
damages resulting from Landlord's retention and/or disposition of such property.
All obligations of Tenant hereunder not fully performed as of the termination of
the Term, including the obligations of Tenant under Section 30 hereof, shall
survive the expiration or earlier termination of the Term, including, without
limitation, indemnity obligations, payment obligations with respect to Rent and
obligations concerning the condition and repair of the Premises.
29. WAIVER OF JURY TRIAL. TENANT AND LANDLORD WAIVE ANY RIGHT TO
TRIAL BY JURY OR TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER
SOUNDING IN CONTRACT, TORT, OR OTHERWISE, BETWEEN LANDLORD AND TENANT ARISING
OUT OF THIS LEASE OR ANY OTHER INSTRUMENT, DOCUMENT, OR AGREEMENT EXECUTED OR
DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS RELATED HERETO.
30. ENVIRONMENTAL REQUIREMENTS.
(a) PROHIBITION/COMPLIANCE/INDEMNITY. Tenant shall not cause or
permit any Hazardous Materials (as hereinafter defined) to be brought upon,
kept, used, stored, handled, treated, generated in or about, or released or
disposed of from, the Premises or the Project in violation of applicable
Environmental Requirements (as hereinafter defined) by Tenant or any Tenant
Party. If Tenant breaches the obligation stated in the preceding sentence, or if
the presence of Hazardous Materials in the Premises or the Project during the
Early Occupancy Period, if any, or the Term or any holding over results in
contamination of the Premises, the Project or any adjacent property or if
contamination of the Premises, the Project or any adjacent property by Hazardous
Materials brought into, kept, used, stored, handled, treated, generated in or
about, or released or disposed of from, the Premises or the Project by anyone
other than Landlord and Landlord's employees, agents and contractors otherwise
occurs during the Early Occupancy Period, if any, or the Term or any holding
over, Tenant hereby indemnifies and shall defend and hold Landlord, its
officers, directors, employees, agents and contractors harmless from any and all
actions (including, without limitation, remedial or enforcement actions of any
kind, administrative or judicial proceedings, and orders or judgments arising
out of or resulting therefrom), costs, claims, damages (including, without
limitation, punitive damages and damages based upon diminution in value of the
Premises or the Project, or the loss of, or restriction on, use of the Premises
or any portion of the Project), expenses (including, without limitation,
attorneys', consultants' and experts' fees, court costs and amounts paid in
settlement of any claims or actions), fines, forfeitures or other civil,
administrative or criminal penalties, injunctive or other relief (whether or not
based upon personal injury, property damage, or contamination of, or adverse
effects upon, the environment, water tables or natural resources), liabilities
or losses (collectively, "ENVIRONMENTAL CLAIMS") which arise during or after the
Early Occupancy Period, if any, or the Term as a result of such contamination.
Notwithstanding the foregoing, Tenant shall in no event be liable to Landlord or
any Landlord Party hereunder as a result of, and this indemnification of
Landlord and the Landlord Parties by Tenant shall not include, Environmental
Claims arising from known conditions existing in, on, under or about the Project
on or before the date hereof (each, a "PRE-EXISTING CONDITION"), as disclosed by
that certain Phase I Environmental Site Assessment of 00 Xxxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxxxxx, dated July 21, 1998, prepared by Dames and Xxxxx, and
as further described in that certain opinion letter issued by Environ, dated
October 28. 2003, pertaining to the effect of off-site conditions on the subject
property, to the extent Tenant can prove, to Landlord's reasonable satisfaction,
that such Environmental Claim does not arise or result, in whole or part, from
any exacerbation of, or contribution to, a Pre-existing Condition by (i) the
actions of Tenant or any Tenant Party, or (ii) any contamination emanating from
in, on or under the Premises. This indemnification of Landlord by Tenant
includes, without limitation, costs incurred in connection with any
investigation of site conditions or any cleanup, treatment, remedial, removal,
or restoration work required by any federal, state or local Governmental
Authority because of Hazardous Materials present in the air, soil or ground
water above, on, or under the Premises or the Project. Without limiting the
foregoing, if the presence of any Hazardous Materials on the Premises, the
Project or any adjacent property caused or permitted by Tenant or any Tenant
Party results in any contamination of the Premises, the Project or any adjacent
property, Tenant shall promptly take all actions at its sole expense and in
accordance with applicable Environmental Requirements as are necessary to return
the Premises, the Project or any adjacent property to the condition existing
prior to the time of such contamination, provided that Landlord's approval of
such action shall first be obtained, which approval shall not unreasonably be
withheld so long as such actions would not potentially have any material adverse
long-term or short-term effect on the Premises or the Project.
00 XXXXXXXX XXXXXX/XXXXXXXX THERAPEUTICS, INC.
PAGE 21
(b) BUSINESS. Landlord acknowledges that it is not the intent of
this Section 30 to prohibit Tenant from using the Premises for the Permitted
Use. Tenant may operate its business according to prudent industry practices so
long as the use or presence of Hazardous Materials is strictly and properly
monitored according to all then applicable Environmental Requirements. As a
material inducement to Landlord to allow Tenant to use Hazardous Materials in
connection with its business, Tenant agrees to deliver to Landlord prior to the
Commencement Date a list identifying each type of Hazardous Materials to be
brought upon, kept, used, stored, handled, treated, generated on, or released or
disposed of from, the Premises or the Project and setting forth any and all
governmental approvals or permits required in connection with the presence, use,
storage, handling, treatment, generation, release or disposal of such Hazardous
Materials on or from the Premises or the Project ("HAZARDOUS MATERIALS LIST").
Tenant shall deliver to Landlord an updated Hazardous Materials List at least
once a year and shall also deliver an updated list before any new Hazardous
Material is brought onto, kept, used, stored, handled, treated, generated on, or
released or disposed of from, the Premises or the Project. Tenant shall deliver
to Landlord true and correct copies of the following documents (the "HAZ MAT
DOCUMENTS") relating to the use, storage, handling, treatment, generation,
release or disposal of Hazardous Materials prior to the Commencement Date, or if
unavailable at that time, concurrent with the receipt from or submission to a
Governmental Authority: permits; approvals; reports and correspondence; storage
and management plans, notice of violations of any Legal Requirements; plans
relating to the installation of any storage tanks to be installed in or under
the Project (provided, said installation of tanks shall only be permitted after
Landlord has given Tenant its written consent to do so, which consent may be
withheld in Landlord's sole and absolute discretion); all closure plans or any
other documents required by any and all federal, state and local Governmental
Authorities for any storage tanks installed in, on or under the Project for the
closure of any such tanks; and a Surrender Plan (to the extent surrender in
accordance with Section 28 cannot be accomplished in 3 months). Tenant is not
required, however, to provide Landlord with any portion(s) of the Haz Mat
Documents containing information of a proprietary nature which, in and of
themselves, do not contain a reference to any Hazardous Materials or hazardous
activities. It is not the intent of this Section to provide Landlord with
information which could be detrimental to Tenant's business should such
information become possessed by Tenant's competitors.
(c) TENANT REPRESENTATION AND WARRANTY. Tenant hereby represents
and warrants to Landlord that (i) neither Tenant nor any of its legal
predecessors has been required by any prior Landlord, lender or Governmental
Authority at any time to take remedial action in connection with Hazardous
Materials contaminating a property which contamination was permitted by Tenant
of such predecessor or resulted from Tenant's or such predecessor's action or
use of the property in question, and (ii) Tenant is not subject to any
enforcement order issued by any Governmental Authority in connection with the
use, storage, handling, treatment, generation, release or disposal of Hazardous
Materials (including, without limitation, any order related to the failure to
make a required reporting to any Governmental Authority). If Landlord determines
that this representation and warranty was not true as of the date of this lease,
Landlord shall have the right to terminate this lease in Landlord's sole and
absolute discretion.
(d) TESTING. Landlord shall have the right to conduct annual tests
of the Premises and the Project to determine whether any contamination of the
Premises or the Project has occurred as a result of Tenant's use. Tenant shall
be required to pay the cost of such annual test of the Premises and the Project;
provided, however, that if Tenant conducts its own tests of the Premises and the
Project using third party contractors and test procedures acceptable to Landlord
which tests are certified to Landlord, Landlord shall accept such tests in lieu
of the annual tests to be paid for by Tenant. In addition, at any time, and from
time to time, prior to the expiration or earlier termination of the Term,
Landlord shall have the right to conduct appropriate tests of the Premises and
the Project to determine if contamination has occurred as a result of Tenant's
use of the Premises and the Project. In connection with such testing, upon the
request of Landlord, Tenant shall deliver to Landlord or its consultant such
non-proprietary information concerning the use of Hazardous Materials in or
about the Premises or the Project by Tenant or any Tenant Party. If
contamination has occurred for which Tenant is liable under this Section 30,
Tenant shall pay all costs to conduct such tests. If no such contamination is
found, Landlord shall pay the costs of such tests (which shall not constitute an
Operating Expense). Landlord shall provide Tenant with a copy of all third
party, non-confidential reports and tests of the Premises and the Project made
by or on behalf of Landlord during the Term without representation or warranty
and subject to a confidentiality agreement. Tenant shall, at its sole cost and
expense, promptly and satisfactorily remediate any environmental conditions
identified by such testing in accordance with all Environmental Requirements.
Landlord's receipt of or satisfaction with any environmental assessment in no
way waives any rights which Landlord may have against Tenant.
00 XXXXXXXX XXXXXX/XXXXXXXX THERAPEUTICS, INC.
PAGE 22
(e) UNDERGROUND TANKS. If underground or other storage tanks
storing Hazardous Materials located on the Premises or the Project are used by
Tenant or are hereafter placed on the Premises or the Project by Tenant, Tenant
shall install, use, monitor, operate, maintain, upgrade and manage such storage
tanks, maintain appropriate records, obtain and maintain appropriate insurance,
implement reporting procedures, properly close any underground storage tanks,
and take or cause to be taken all other actions necessary or required under
applicable state and federal Legal Requirements, as such now exists or may
hereafter be adopted or amended in connection with the installation, use,
maintenance, management, operation, upgrading and closure of such storage tanks.
(f) TENANT'S OBLIGATIONS. Tenant's obligations under this Section
30 shall survive the expiration or earlier termination of the Lease. During any
period of time after the expiration or earlier termination of this Lease
required by Tenant or Landlord to complete the removal from the Premises or the
Project of any Hazardous Materials (including, without limitation, the release
and termination of any licenses or permits restricting the use of the Premises
or the Project and the completion of the approved Surrender Plan), Tenant shall
continue to pay the full Rent in accordance with this Lease for any portion of
the Premises not relet by Landlord in Landlord's sole discretion, which Rent
shall be prorated daily.
(g) DEFINITIONS. As used herein, the term "ENVIRONMENTAL
REQUIREMENTS" means all applicable present and future statutes, regulations,
ordinances, rules, codes, judgments, orders or other similar enactments of any
Governmental Authority regulating or relating to health, safety, or
environmental conditions on, under, or about the Premises or the Project, or the
environment, including without limitation, the following: the Comprehensive
Environmental Response, Compensation and Liability Act; the Resource
Conservation and Recovery Act; and all state and local counterparts thereto, and
any regulations or policies promulgated or issued thereunder. As used herein,
the term "HAZARDOUS MATERIALS" means and includes any substance, material,
waste, pollutant, or contaminant listed or defined as hazardous or toxic, or
regulated by reason of its impact or potential impact on humans, animals and/or
the environment under any Environmental Requirements, asbestos and petroleum,
including crude oil or any fraction thereof, natural gas liquids, liquefied
natural gas, or synthetic gas usable for fuel (or mixtures of natural gas and
such synthetic gas). As defined in Environmental Requirements, Tenant is and
shall be deemed to be the "OPERATOR" of Tenant's "FACILITY" and the "OWNER" of
all Hazardous Materials brought on the Premises or the Project by Tenant or any
Tenant Party, and the wastes, by-products, or residues generated, resulting, or
produced therefrom.
31. TENANT'S REMEDIES/LIMITATION OF LIABILITY. Landlord shall not
be in default hereunder unless Landlord fails to perform any of its obligations
hereunder within 30 days after written notice from Tenant specifying such
failure (unless such performance will, due to the nature of the obligation,
require a period of time in excess of 30 days, then after such period of time as
is reasonably necessary). Upon any default by Landlord, Tenant shall give notice
by registered or certified mail to any Holder of a Mortgage covering the
Premises and to any Landlord of any lease of property in or on which the
Premises are located and Tenant shall offer such Holder and/or Landlord a
reasonable opportunity to cure the default, including time to obtain possession
of the Project by power of sale or a judicial action if such should prove
necessary to effect a cure; provided Landlord shall have furnished to Tenant in
writing the names and addresses of all such persons who are to receive such
notices. All obligations of Landlord hereunder shall be construed as covenants,
not conditions; and, except as may be otherwise expressly provided in this
Lease, Tenant may not terminate this Lease for breach of Landlord's obligations
hereunder.
Notwithstanding the foregoing, if any claimed Landlord default
hereunder will immediately, materially and adversely affect Tenant's ability to
conduct its business in the Premises (a "MATERIAL LANDLORD DEFAULT"), Tenant
shall, as soon as reasonably possible, but in any event within 2 business days
of obtaining knowledge of such claimed Material Landlord Default, give Landlord
written notice of such claim and telephonic notice to Tenant's principal contact
with Landlord. Tenant's notice shall not be effective for purposes of this
section unless such notice expressly states that a Material Landlord Default has
occurred. Landlord shall then have 2 business days to commence cure of such
claimed Material Landlord Default and shall diligently prosecute such cure to
completion. If such claimed Material Landlord Default is not a default by
Landlord hereunder, or if Tenant failed to give Landlord the notice required
hereunder within 2 business days of learning of the conditions giving rise to
the claimed Material Landlord Default, Landlord shall be entitled to recover
from Tenant, as Additional Rent, any costs incurred by Landlord in connection
with such cure in excess of the costs, if any, that Landlord would otherwise
have been liable to pay hereunder. If Landlord fails to commence cure of any
claimed Material Landlord Default as provided above, Tenant may commence and
prosecute such cure to completion, and shall be entitled to recover the costs of
such cure
00 XXXXXXXX XXXXXX/XXXXXXXX THERAPEUTICS, INC.
PAGE 23
(but not any consequential or other damages) from Landlord, to the extent of
Landlord's obligation to cure such claimed Material Landlord Default hereunder,
subject to the limitations set forth in the immediately preceding sentence of
this paragraph and the other provisions of this Lease.
All obligations of Landlord under this Lease will be binding upon
Landlord only during the period of its ownership of the Premises and not
thereafter. The term "landlord" in this Lease shall mean only the owner for the
time being of the Premises. Upon the transfer by such owner of its interest in
the Premises, such owner shall thereupon be released and discharged from all
obligations of Landlord thereafter accruing, but such obligations shall be
binding during the Term upon each new owner for the duration of such owner's
ownership.
32. INSPECTION AND ACCESS. Landlord and its agents,
representatives, and contractors may enter the Premises and the Project at any
reasonable time to inspect the Premises and to make such repairs as may be
required or permitted pursuant to this Lease and for any other business purpose.
Landlord and Landlord's representatives may enter the Premises and the Project
during business hours on not less than 48 hours advance written notice (except
in the case of emergencies in which case no such notice shall be required and
such entry may be at any time) for the purpose of effecting any such repairs,
inspecting the Premises, showing the Premises to prospective purchasers and,
during the last year of the Term, to prospective tenants or for any other
business purpose. Landlord may erect a suitable sign on the Premises stating the
Premises are available to let or that the Project is available for sale.
Landlord may grant easements, make public dedications and create restrictions on
or about the Premises and the Project, provided that no such easement,
dedication or restriction materially, adversely affects Tenant's use or
occupancy of the Premises for the Permitted Use. At Landlord's request, Tenant
shall execute such instruments as may be necessary for such easements,
dedications or restrictions. Tenant shall at all times, except in the case of
emergencies, have the right to escort Landlord or its agents, representatives,
contractors or guests while the same are in the Premises, provided such escort
does not materially and adversely affect Landlord's access rights hereunder.
33. SECURITY. Tenant acknowledges and agrees that security devices
and services, if any, while intended to deter crime may not in given instances
prevent theft or other criminal acts and that Landlord is not providing any
security services with respect to the Premises or the Project. Tenant agrees
that Landlord shall not be liable to Tenant for, and Tenant waives any claim
against Landlord with respect to, any loss by theft or any other damage suffered
or incurred by Tenant in connection with any unauthorized entry into the
Premises or the Project or any other breach of security with respect to the
Premises or the Project. Tenant shall be solely responsible for the personal
safety of Tenant's officers, employees, agents, contractors, guests and invitees
while any such person is in, on or about the Premises and/or the Project. Tenant
shall at Tenant's cost obtain insurance coverage to the extent Tenant desires
protection against such criminal acts.
34. FORCE MAJEURE. Landlord shall not be held responsible for
delays in the performance of its obligations hereunder when caused by strikes,
lockouts, labor disputes, weather, natural disasters, inability to obtain labor
or materials or reasonable substitutes therefor, governmental restrictions,
governmental regulations, governmental controls, delay in issuance of permits,
enemy or hostile governmental action, civil commotion, fire or other casualty,
and other causes beyond the reasonable control of Landlord ("FORCE MAJEURE").
35. BROKERS, ENTIRE AGREEMENT, AMENDMENT. Landlord and Tenant each
represents and warrants that it has not dealt with any broker, agent or other
person (collectively, "BROKER") in connection with this transaction and that no
Broker brought about this transaction other than Xxxxxxxxx & Xxxx Colliers and
Xxxxxxxx Xxxxx Xxxxx & Partners. Landlord and Tenant each hereby agree to
indemnify and hold the other harmless from and against any claims by any Broker,
other than the broker, if any named in this Section 35, claiming a commission or
other form of compensation by virtue of having dealt with Tenant or Landlord, as
applicable, with regard to this leasing transaction.
36. LIMITATION ON LANDLORD'S LIABILITY. NOTWITHSTANDING ANYTHING
SET FORTH HEREIN OR IN ANY OTHER AGREEMENT BETWEEN LANDLORD AND TENANT TO THE
CONTRARY: (A) LANDLORD SHALL NOT BE LIABLE TO TENANT OR ANY OTHER PERSON FOR
(AND TENANT AND EACH SUCH OTHER PERSON ASSUME ALL RISK OF) LOSS, DAMAGE OR
INJURY, WHETHER ACTUAL OR CONSEQUENTIAL TO: TENANT'S PERSONAL PROPERTY OF EVERY
KIND AND DESCRIPTION, INCLUDING, WITHOUT LIMITATION TRADE FIXTURES, EQUIPMENT,
INVENTORY, SCIENTIFIC RESEARCH, SCIENTIFIC EXPERIMENTS, LABORATORY ANIMALS,
PRODUCT,
00 XXXXXXXX XXXXXX/XXXXXXXX THERAPEUTICS, INC.
PAGE 24
SPECIMENS, SAMPLES, AND/OR SCIENTIFIC, BUSINESS, ACCOUNTING AND OTHER RECORDS OF
EVERY KIND AND DESCRIPTION KEPT AT THE PREMISES AND ANY AND ALL INCOME DERIVED
OR DERIVABLE THEREFROM; (B) THERE SHALL BE NO PERSONAL RECOURSE TO LANDLORD FOR
ANY ACT OR OCCURRENCE IN, ON OR ABOUT THE PREMISES OR ARISING IN ANY WAY UNDER
THIS LEASE OR ANY OTHER AGREEMENT BETWEEN LANDLORD AND TENANT WITH RESPECT TO
THE SUBJECT MATTER HEREOF AND ANY LIABILITY OF LANDLORD HEREUNDER SHALL BE
STRICTLY LIMITED SOLELY TO LANDLORD'S INTEREST IN THE PROJECT OR ANY PROCEEDS
FROM SALE OR CONDEMNATION THEREOF AND ANY INSURANCE PROCEEDS PAYABLE IN RESPECT
OF LANDLORD'S INTEREST IN THE PROJECT OR IN CONNECTION WITH ANY SUCH LOSS; AND
(C) IN NO EVENT SHALL ANY PERSONAL LIABILITY BE ASSERTED AGAINST ANY OF
LANDLORD'S OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR CONTRACTORS. UNDER NO
CIRCUMSTANCES SHALL LANDLORD OR ANY OF LANDLORD'S OFFICERS, DIRECTORS,
EMPLOYEES, AGENTS OR CONTRACTORS BE LIABLE FOR INJURY TO TENANT'S BUSINESS OR
FOR ANY LOSS OF INCOME OR PROFIT THEREFROM.
37. SEVERABILITY. If any clause or provision of this Lease is
illegal, invalid or unenforceable under present or future laws, then and in that
event, it is the intention of the parties hereto that the remainder of this
Lease shall not be affected thereby. It is also the intention of the parties to
this Lease that in lieu of each clause or provision of this Lease that is
illegal, invalid or unenforceable, there be added, as a part of this Lease, a
clause or provision as similar in effect to such illegal, invalid or
unenforceable clause or provision as shall be legal, valid and enforceable.
38. SIGNS; EXTERIOR APPEARANCE. Tenant shall not, without the
prior written consent of Landlord, which may be granted or withheld in
Landlord's sole discretion: (i) attach any awnings, exterior lights,
decorations, balloons, flags, pennants, banners, painting or other projection to
any outside wall of the Project, (ii) use any curtains, blinds, shades or
screens other than Landlord's standard window coverings, (iii) coat or otherwise
sunscreen the interior or exterior of any windows, (iv) place any bottles,
parcels, or other articles on the window xxxxx, (v) place any equipment,
furniture or other items of personal property on any exterior balcony, or (vi)
paint, affix or exhibit on any part of the Premises or the Project any signs,
notices, window or door lettering, placards, decorations, or advertising media
of any type which can be viewed from the exterior of the Premises. Tenant shall
be responsible, at Tenant's sole cost and expense, for removing all interior and
exterior signage from the Building and the Project at the expiration or earlier
termination of this Lease.
39. RIGHT TO EXTEND TERM. Tenant shall have the right to extend
the Term of the Lease upon the following terms and conditions:
(a) EXTENSION RIGHTS. Tenant shall have two (2) consecutive rights
(each, an "EXTENSION RIGHT") to extend the term of this Lease for five (5) years
each (each, an "EXTENSION TERM") on the same terms and conditions as this Lease
(other than Base Rent) by giving Landlord written notice of its election to
exercise each Extension Right at least twelve (12) months prior to the
expiration of the Base Term of the Lease or the expiration of any prior
Extension Term.
Base Rent for the first year of each Extension Term shall be an amount
equal to the greater of (i) 100% of the Base Rent charged during the last year
of the Base Term or the immediately preceding Extension Term, as applicable, and
(ii) 95% of the then current Market Rate (as defined below). Base Rent for each
successive year of each such Extension Term shall be adjusted by multiplying the
Base Rent payable during the immediately preceding year by the Rent Adjustment
Percentage and adding the resulting amount to the Base Rent payable for the
immediately preceding year. As used herein, "MARKET RATE" shall mean the then
market rental rate as determined by Landlord and agreed to by Tenant, which
shall in no event be less than the Base Rent payable as of the date immediately
preceding the commencement of such Extension Term increased by the Rent
Adjustment Percentage multiplied by such Base Rent.
If, on or before the date which is 120 days prior to the expiration of
the Base Term of this Lease, or the expiration of any prior Extension Term,
Tenant has not agreed with Landlord's determination of the Market Rate and the
rent escalations during such subsequent Extension Term after negotiating in good
faith, Tenant may by written notice to Landlord not later than 120 days prior to
the expiration of the Base Term of this Lease, or the expiration of
00 XXXXXXXX XXXXXX/XXXXXXXX THERAPEUTICS, INC.
PAGE 25
any then effective Extension Term, elect arbitration as described in Section
39(b) below. If Tenant does not elect such arbitration, Tenant shall be deemed
to have waived any right to extend, or further extend, the Term of the Lease and
all of the remaining Extension Rights shall terminate.]
(b) ARBITRATION.
(i) Within 10 days of Tenant's notice to Landlord
of its election to arbitrate Market Rate and escalations, each
party shall deliver to the other a proposal containing the
Market Rate and escalations that the submitting party believes
to be correct, based on its review of comparable market rents
for laboratory/office space of similar age, quality and level
of finish in the Lexington, Massachusetts market ("EXTENSION
PROPOSAL"). If either party fails to timely submit an
Extension Proposal, the other party's submitted proposal shall
determine the Base Rent and escalations for the Extension
Term. If both parties submit Extension Proposals, then
Landlord and Tenant shall meet within 7 days after delivery of
the last Extension Proposal and make a good faith attempt to
mutually appoint a single Arbitrator (and defined below) to
determine the Market Rate and escalations. If Landlord and
Tenant are unable to agree upon a single Arbitrator, then each
shall, by written notice delivered to the other within 10 days
after the meeting, select an Arbitrator. If either party fails
to timely give notice of its selection for an Arbitrator, the
other party's submitted proposal shall determine the Base Rent
for the Extension Term. The 2 Arbitrators so appointed shall,
within 5 business days after their appointment, appoint a
third Arbitrator. If the 2 Arbitrators so selected cannot
agree on the selection of the third Arbitrator within the time
above specified, then either party, on behalf of both parties,
may request such appointment of such third Arbitrator by
application to any state court of general jurisdiction in the
jurisdiction in which the Premises are located, upon 10 days
prior written notice to the other party of such intent.
(ii) The decision of the Arbitrator(s) shall be
made within 30 days after the appointment of a single
Arbitrator or the third Arbitrator, as applicable. The
decision of the single Arbitrator shall be final and binding
upon the parties. The average of the two closest Arbitrators
in a three Arbitrator panel shall be final and binding upon
the parties. Each party shall pay the fees and expenses of the
Arbitrator appointed by or on behalf of such party and the
fees and expenses of the third Arbitrator shall be borne
equally by both parties. If the Market Rate and escalations
are not determined by the first day of the Extension Term,
then Tenant shall pay Landlord Base Rent in an amount equal to
the Base Rent in effect immediately prior to the Extension
Term and increased by the Rent Adjustment Percentage until
such determination is made. After the determination of the
Market Rate and escalations, the parties shall make any
necessary adjustments to such payments made by Tenant.
Landlord and Tenant shall then execute an amendment
recognizing the Market Rate and escalations for the Extension
Term.
(iii) An "ARBITRATOR" shall be any person appointed
by or on behalf of either party or appointed pursuant to the
provisions hereof and: (i) shall be (A) a member of the
American Institute of Real Estate Appraisers with not less
than 10 years of experience in the appraisal of improved
office and high tech industrial real estate in the greater
Boston metropolitan area, or (B) a licensed commercial real
estate broker with not less than 15 years experience
representing Landlords and/or tenants in the leasing of high
tech or life sciences space in the greater Boston metropolitan
area, (ii) devoting substantially all of their time to
professional appraisal or brokerage work, as applicable, at
the time of appointment and (iii) be in all respects impartial
and disinterested.
(c) RIGHTS PERSONAL. Extension Rights are personal to Tenant and,
except in the case of a Permitted Assignment hereunder, are not assignable
without Landlord's consent, which may be granted or withheld in Landlord's sole
discretion separate and apart from any consent by Landlord to an assignment of
Tenant's interest in the Lease.
(d) EXCEPTIONS. Notwithstanding anything set forth above to the
contrary, Extension Rights shall not be in effect and Tenant may not exercise
any of the Extension Rights:
00 XXXXXXXX XXXXXX/XXXXXXXX THERAPEUTICS, INC.
PAGE 26
(i) during any period of time that Tenant is in
Default under any provision of this Lease; or
(ii) if Tenant has been in Default under any
provision of this Lease 3 or more times, whether or not the
Defaults are cured, during the 12 month period immediately
prior to the date that Tenant intends to exercise an Extension
Right, whether or not the Defaults are cured.
(e) NO EXTENSIONS. The period of time within which any Extension
Rights may be exercised shall not be extended or enlarged by reason of Tenant's
inability to exercise the Extension Rights.
(f) TERMINATION. The Extension Rights shall terminate and be of no
further force or effect even after Tenant's due and timely exercise of an
Extension Right, if, after such exercise, but prior to the commencement date of
an Extension Term, (i) Tenant fails to timely cure any default by Tenant under
this Lease; or (ii) Tenant has Defaulted 3 or more times during the period from
the date of the exercise of an Extension Right to the date of the commencement
of the Extension Term, whether or not such Defaults are cured.
40. MISCELLANEOUS.
(a) NOTICES. All notices or other communications between the
parties shall be in writing and shall be deemed duly given upon delivery or
refusal to accept delivery by the addressee thereof if delivered in person, or
upon actual receipt if delivered by reputable overnight guaranty courier,
addressed and sent to the parties at their addresses set forth above. Landlord
and Tenant may from time to time by written notice to the other designate
another address for receipt of future notices.
(b) JOINT AND SEVERAL LIABILITY. If and when included within the
term "TENANT," as used in this instrument, there is more than one person or
entity, each shall be jointly and severally liable for the obligations of
Tenant.
(c) FINANCIAL INFORMATION. Tenant shall furnish Landlord with true
and complete copies of (i) Tenant's most recent audited annual financial
statements within 90 days of the end of each of Tenant's fiscal years during the
Term, (ii) Tenant's most recent unaudited quarterly financial statements within
45 days of the end of each of Tenant's first three fiscal quarters of each of
Tenant's fiscal years during the Term, (iii) at Landlord's request from time to
time, updated business plans, including cash flow projections and/or pro forma
balance sheets and income statements, all of which shall be treated by Landlord
as confidential information belonging to Tenant, (iv) corporate brochures and/or
profiles prepared by Tenant for prospective investors, and (v) any other
financial information or summaries that Tenant typically provides to its lenders
or shareholders.
(d) RECORDATION. Neither this Lease nor a memorandum of lease
shall be filed by or on behalf of Tenant in any public record. Landlord may
prepare and file, and upon request by Landlord Tenant will execute, a memorandum
of lease.
(e) INTERPRETATION. The normal rule of construction to the effect
that any ambiguities are to be resolved against the drafting party shall not be
employed in the interpretation of this Lease or any exhibits or amendments
hereto. Words of any gender used in this Lease shall be held and construed to
include any other gender, and words in the singular number shall be held to
include the plural, unless the context otherwise requires. The captions inserted
in this Lease are for convenience only and in no way define, limit or otherwise
describe the scope or intent of this Lease, or any provision hereof, or in any
way affect the interpretation of this Lease.
(f) NOT BINDING UNTIL EXECUTED. The submission by Landlord to
Tenant of this Lease shall have no binding force or effect, shall not constitute
an option for the leasing of the Premises, nor confer any right or impose any
obligations upon either party until execution of this Lease by both parties.
(g) LIMITATIONS ON INTEREST. It is expressly the intent of
Landlord and Tenant at all times to comply with applicable law governing the
maximum rate or amount of any interest payable on or in connection with this
Lease. If applicable law is ever judicially interpreted so as to render usurious
any interest called for under this Lease,
00 XXXXXXXX XXXXXX/XXXXXXXX THERAPEUTICS, INC.
PAGE 27
or contracted for, charged, taken, reserved, or received with respect to this
Lease, then it is Landlord's and Tenant's express intent that all excess amounts
theretofore collected by Landlord be credited on the applicable obligation (or,
if the obligation has been or would thereby be paid in full, refunded to
Tenant), and the provisions of this Lease immediately shall be deemed reformed
and the amounts thereafter collectible hereunder reduced, without the necessity
of the execution of any new document, so as to comply with the applicable law,
but so as to permit the recovery of the fullest amount otherwise called for
hereunder.
(h) CHOICE OF LAW. Construction and interpretation of this Lease
shall be governed by the internal laws of the state in which the Premises are
located, excluding any principles of conflicts of laws.
(i) TIME. Time is of the essence as to the performance of Tenant's
obligations under this Lease.
(j) INCORPORATION BY REFERENCE. All exhibits and addenda attached
hereto are hereby incorporated into this Lease and made a part hereof. If there
is any conflict between such exhibits or addenda and the terms of this Lease,
such exhibits or addenda shall control.
(k) HAZARDOUS ACTIVITIES. Notwithstanding any other provision of
this Lease, Landlord, for itself and its employees, agents and contractors,
reserves the right to refuse to perform any repairs or services in any portion
of the Premises or the Project which, pursuant to Tenant's routine safety
guidelines, practices or custom or prudent industry practices, require any form
of protective clothing or equipment other than safety glasses. In any such case,
Tenant shall contract with parties who are acceptable to Landlord, in Landlord's
reasonable discretion, for all such repairs and services, and Landlord shall, to
the extent required, equitably adjust Operating Expenses in respect of such
repairs or services to reflect that Landlord is not providing such repairs or
services to Tenant.
(l) In the event of any litigation between Landlord and Tenant,
the unsuccessful party as determined by a court of competent jurisdiction shall
reimburse the successful party for all legal fees and expenses incurred by the
successful party in prosecuting or defending such action.
(m) Whenever this Lease grants Landlord or Tenant the right to
take action, exercise discretion, establish rules and regulations or make
allocations or other determinations, Landlord and Tenant shall act in good
faith.
00 XXXXXXXX XXXXXX/XXXXXXXX THERAPEUTICS, INC.
PAGE 28
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of
the day and year first above written.
TENANT:
CRITICAL THERAPEUTICS, INC., a Delaware
corporation
By: /s/ Xxxx Xxxxx
------------------------------
Its: President and CEO
LANDLORD:
ARE-60 WESTVIEW STREET, LLC, a Delaware
limited liability company
By: AREE Holdings, L.P., a Delaware
limited partnership, managing member
By: ARE-GP Holdings QRS Corp., a
Delaware corporation, general
partner
By: /s/ Xxxxx X. Xxxxxx
----------------------------
Its: Senior Vice President &
Chief Financial Officer
00 XXXXXXXX XXXXXX/XXXXXXXX THERAPEUTICS, INC.
PAGE 1
EXHIBIT A TO LEASE
DESCRIPTION OF PREMISES
00 XXXXXXXX XXXXXX/XXXXXXXX THERAPEUTICS, INC.
PAGE 1
EXHIBIT B TO LEASE
DESCRIPTION OF PROJECT
A certain parcel of registered and unregistered land situated on
Westview Street, Lexington, Middlesex County, Massachusetts, the same being
shown as Lot 5 on a plan entitled "Plan of Land in Lexington, Mass." dated
December 18, 1972, by Xxxxxx X. Xxxxxx and Xxxxxx X. Xxxxxxxx, Civil Engineers
and Surveyors, recorded with said Deeds in Book 12398, Page 433, being more
particularly bounded and described according to said plan as follows:
NORTHEASTERLY by land now or formerly of The 115 Xxxxxxx Corp.
270.76 feet;
SOUTHEASTERLY in part by land now or formerly of Majilite
Corporation and in part by Lot 6 as shown on said
plan, 543.88 feet;
SOUTHWESTERLY by Lot 6 as shown on said plan, 309.13 feet; and
NORTHWESTERLY by Westview Street, by three lines respectively
measuring 92.25 feet, 271.31 feet, and 185.92 feet.
The following described portion of the above land shown as lot 3 on Land Court
Plan 28759B in Registration Book 821, Page 143 is registered land:
NORTHEASTERLY by land now or formerly of Xxxxx Xxxxx et al, 307.96
feet;
SOUTHEASTERLY by Lot 1 and Lot 2 as shown on said Land Court Plan
120.03 feet;
SOUTHWESTERLY by land now or formerly of Xxxxxxx X. Xxxxxxx, 345.92
feet; and
NORTHWESTERLY by Xxxxxxxx Xxxxxx, 000 feet.
The foregoing premises have the benefit of the following:
A. Drainage and gas pipe line easements reserved and granted in an
instrument dated January 2, 1973 recorded in Book 12398, Page 418,
filed as Document No. 508929, as modified and limited by instrument
dated September 17, 1973 recorded in Book 12538, Page 429. Said gas
pipe line easement is subject to the provisions contained in deed dated
October 10, 1973 recorded in Book 12538, Page 444, filed as Document
No. 516620, as affected by Confirmatory Easement Agreement by and
between The Equitable Life Assurance Society of the United States,
Equitable Real Estate Investment Management, Inc. and Danvers Land
Associates recorded in Book 23955, Page 542.
B. Drainage and sewer easements created by instrument dated September 17,
1973 recorded in Book 12538, Page 429 subject to the provisions therein
contained.
C. Deed and Reservation of Easements recorded in Book 23955, Page 526.
00 XXXXXXXX XXXXXX/XXXXXXXX THERAPEUTICS, INC.
PAGE 1
EXHIBIT C TO LEASE
[Landlord Build]
WORK LETTER
THIS WORK LETTER dated as of November 18, 2003 (this "WORK LETTER") is
made and entered into by and between ARE-60 WESTVIEW, LLC, a Delaware limited
liability company ("LANDLORD"), and CRITICAL THERAPEUTICS, INC., a Delaware
corporation ("TENANT"), and is attached to and made a part of the Lease dated as
of November 18, 2003 (the "LEASE"), by and between Landlord and Tenant. Any
initially capitalized terms used but not defined herein shall have the meanings
given them in the Lease.
41. GENERAL REQUIREMENTS.
(a) TENANT'S AUTHORIZED REPRESENTATIVE. Tenant designates Xxxxxx
Xxxxxxxx and Xxxxx Xxxxx Xxxxxx (either such individual acting alone, "TENANT'S
REPRESENTATIVE") as the only persons authorized to act for Tenant pursuant to
this Work Letter. Landlord shall not be obligated to respond to or act upon any
request, approval, inquiry or other communication ("COMMUNICATION") from or on
behalf of Tenant in connection with this Work Letter unless such Communication
is in writing from Tenant's Representative. Tenant may change either Tenant's
Representative at any time upon not less than 5 business days advance written
notice to Landlord. No period set forth herein for any approval of any matter by
Tenant's Representative shall be extended by reason of any change in Tenant's
Representative. Neither Tenant nor Tenant's Representative shall be authorized
to direct Landlord's contractors in the performance of the Tenant Improvements
(as hereinafter defined).
(b) LANDLORD'S AUTHORIZED REPRESENTATIVE. Landlord designates Xxx
Xxxxxxx and Xxx Xxxxx (either such individual acting alone, "LANDLORD'S
REPRESENTATIVE") as the only persons authorized to act for Landlord pursuant to
this Work Letter. Tenant shall not be obligated to respond to or act upon any
request, approval, inquiry or other Communication from or on behalf of Landlord
in connection with this Work Letter unless such Communication is in writing from
Landlord's Representative. Landlord may change either Landlord's Representative
at any time upon not less than 5 business days advance written notice to Tenant.
No period set forth herein for any approval of any matter by Landlord's
Representative shall be extended by reason of any change in Landlord's
Representative. Landlord's Representative shall be the sole persons authorized
to direct Landlord's contractors in the performance of the Tenant Improvements.
(c) ARCHITECTS, CONSULTANTS AND CONTRACTORS. Landlord and Tenant
hereby acknowledge and agree that: (i) Xxxxx Xxxxx and Dioli Architects, Inc.
shall be the architect (the "TI ARCHITECT") for the Tenant Improvements, and
(ii) The Richmond Group, Inc., shall be the construction manager (the "TI
CONSTRUCTION MANAGER"), and (iii) any subcontractors for the Tenant Improvements
shall be selected by Landlord, subject to Tenant's approval, which approval
shall not be unreasonably withheld, conditioned or delayed.
42. TENANT IMPROVEMENTS.
(a) DEFINITIONS. As used herein, "TENANT IMPROVEMENTS" shall mean
all improvements to the Premises desired by Tenant of a fixed and permanent
nature, and approved by Landlord in accordance with this Work Letter exclusive
of the improvements described as "Base Building" on Exhibit A attached hereto
("LANDLORD'S BASE BUILDING WORK"). "LANDLORD'S WORK" shall mean the work of
constructing the Tenant Improvements. Tenant acknowledges that, except for "New
exterior pedestal signage per Alexandria spec and Town of Lexington
requirements", Landlord's Base Building Work has been completed. The Tenant
Improvements are described on the attached Exhibit B - Outline Specifications
and on the attached Exhibit C - Preliminary Plans (collectively, the "APPROVED
TI PLANS"). Landlord and Tenant have each approved the Approved TI Plans. Other
than the Tenant Improvements, any approved Tenant Changes (as defined in Section
4 below), and Landlord's Base Building Work, Landlord shall not have any
obligation whatsoever with respect to the finishing of the Premises for Tenant's
use and occupancy.
(b) PERMIT DRAWINGS. Landlord has caused the TI Architect to
prepare and deliver to Tenant construction plans, specifications, and drawings
depicting the Tenant Improvements ("TI PERMIT DRAWINGS"). The
00 XXXXXXXX XXXXXX/XXXXXXXX THERAPEUTICS, INC.
PAGE 2
TI Permit Drawings have been prepared substantially in accordance with the
Approved TI Plans. Tenant acknowledges that it is solely responsible for
ensuring that the TI Permit Drawings reflect Tenant's requirements for the
Tenant Improvements, and has approved the TI Permit Drawings. Landlord has
caused the TI Construction Manager to deliver the TI Permit Drawings and the
building permit application to the municipal building department. Landlord has
approved the TI Permit Drawings. The TI Permit Drawings shall not be materially
modified except as may be reasonably required in connection with the issuance of
the TI Permit (as defined in Section 3(a) below), or by processing of a Change
Request (as defined in Section 4(a) below).
43. CONSTRUCTION OF THE TENANT IMPROVEMENTS.
(a) PERMITTING AND COMMENCEMENT OF THE TENANT IMPROVEMENTS.
Landlord shall commence construction of the Tenant Improvements upon obtaining a
building permit (the "TI PERMIT") authorizing the construction of the Tenant
Improvements consistent with the TI Permit Drawings. If any Governmental
Authority having jurisdiction over the construction of the Tenant Improvements
shall impose terms or conditions upon the construction thereof which: (i) are
inconsistent with Landlord's obligations hereunder, (ii) increase the cost of
constructing the Tenant Improvements, or (iii) will materially delay the
construction of the Tenant Improvements, Landlord and Tenant shall reasonably
and in good faith seek means by which to mitigate or eliminate any such adverse
terms and conditions.
(b) SELECTION OF MATERIALS, ETC. Where more than one type of
material or structure is indicated on the TI Permit Drawings, the option will be
within Landlord's reasonable discretion. As to all building materials and
equipment which Landlord is obligated to supply under this Work Letter, Landlord
shall select the manufacturer thereof in its reasonable discretion.
(c) COMPLETION OF THE TENANT IMPROVEMENTS. "SUBSTANTIAL
COMPLETION" shall be deemed to have occurred when (i) Landlord has substantially
completed or caused to be substantially completed the Tenant Improvements, in a
good and workmanlike manner, substantially in accordance with all material laws,
the TI Permit Drawings, and the TI Permit, subject, in each case, to Minor
Variations and normal "punchlist" items of a non-material nature which do not
interfere with the use of the Premises, and (ii) Landlord has delivered to
Tenant a Certificate of Substantial Completion from the TI Architect in the form
of the American Institute of Architects document G704, and (iii) Landlord has
either (a) delivered to Tenant a certificate of occupancy from the Lexington
Building Department for the Premises enabling Tenant to use and occupy the
Premises for its intended use or (b) has obtained authorization from the
Lexington Building Department, pending issuance of a certificate of occupancy,
for the Tenant to use and occupy the Premises for its intended use. Subject to
the terms of the Lease, Landlord shall use reasonable efforts to achieve
Substantial Completion on or before the Target Commencement Date (subject to
Tenant Delays and Force-Majeure Delays). For purposes of this Work Letter,
"MINOR VARIATIONS" shall mean any modifications reasonably required: (i) to
comply with all applicable Legal Requirements and/or to obtain or to comply with
any required permit (including the TI Permit); (ii) to comply with any request
by Tenant for modifications to the Tenant Improvements; (iii) to comport with
good design, engineering, and construction practices which are not material; or
(iv) to make reasonable adjustments for field deviations or conditions
encountered during the construction of the Tenant Improvements.
(d) DELIVERY OF THE PREMISES. When the Tenant Improvements are
Substantially Complete, Landlord shall so notify Tenant in writing and Tenant
shall accept the Premises, subject to the remaining terms and provisions of this
Section 3(d). Within 3 business days of such notification and the delivery by
Landlord to Tenant of the items required under Section 3(c) hereunder, Landlord,
Tenant, the TI Architect, and the TI Construction Manager shall conduct a
walk-through of the Premises to prepare a list of punchlist items as described
in Section 3(c) above, which punchlist shall be signed by Landlord, the TI
Construction Manager and Tenant. Landlord shall promptly undertake and complete,
or cause to be completed, all punch list items within 30 days following the
punchlist walk-through (plus such additional time as may be reasonably necessary
to procure materials or components necessary to complete such punch list items).
Tenant's taking possession and acceptance of the Premises shall not constitute a
waiver of: (i) any warranty with respect to workmanship (including installation
of equipment) or material (exclusive of equipment provided directly by
manufacturers), (ii) any non-compliance of the Tenant Improvements with
applicable law, or (iii) any claim that the Tenant Improvements were not
completed substantially in accordance with the TI Permit Drawings (subject to
Minor Variations and such other changes as are permitted hereunder)
(collectively, a "CONSTRUCTION DEFECT"). Tenant shall have 1 year after
Substantial Completion within which to
00 XXXXXXXX XXXXXX/XXXXXXXX THERAPEUTICS, INC.
PAGE 3
notify Landlord of any such Construction Defect discovered by Tenant, and
Landlord shall use reasonable efforts to remedy or cause the responsible
contractor to remedy any such Construction Defect within 30 days thereafter.
Notwithstanding the foregoing, Landlord shall not be in default under the Lease
if: the applicable contractor, despite Landlord's reasonable efforts, fails to
remedy such Construction Defect within such 30-day period, but Landlord, within
30 days thereafter, commences and diligently and continuously prosecutes such
remedial action to completion.
Tenant shall be entitled to receive the benefit of all construction warranties
and manufacturer's equipment warranties relating to equipment installed in the
Premises. Landlord shall diligently pursue any claims arising out of latent
defects in the Project.
(e) TENANT DELAY. Each of the following shall constitute a "TENANT
DELAY":
(i) Tenant's Representative was not available to give or
receive any Communication or to take any other action required to be
taken by Tenant hereunder within the time frames provided herein;
(ii) Tenant's request for Change Requests (as defined in
Section 4(a) below) whether or not any such Change Requests are
actually performed;
(iii) Construction of any Tenant Changes;
(iv) Tenant's request for materials, finishes or
installations requiring unusually long lead times;
(v) Tenant's delay in reviewing, revising or approving
plans and specifications beyond the periods set forth herein;
(vi) Tenant's delay in providing information critical to
the normal progression of the Project. Tenant shall provide such
information as soon as reasonably possible, but in no event longer than
one week after receipt of any request for such information from
Landlord, unless another time period is expressly provided hereunder;
(vii) Tenant's delay in making payments to Landlord for
Excess TI Costs (as defined in Section 5(c) below); or
(viii) Any other act or omission by Tenant or any Tenant
Party, or persons employed by any of such persons.
If the Commencement Date is actually delayed for any of the foregoing reasons,
then Landlord shall cause the TI Architect to certify the date on which the
Tenant Improvements would have been completed but for such Tenant Delay and such
certified date shall be the Commencement Date under the Lease.
44. CHANGES. Any changes (each, a "TENANT CHANGE") requested by
Tenant to the Tenant Improvements shall be requested and instituted in
accordance with the provisions of this Section 4 and shall be subject to
Landlord's prior written consent ("LANDLORD'S APPROVAL") which may be given or
withheld in Landlord's sole discretion if any such Tenant Change shall (i)
affect the structure of the Building in such a manner that will compromise, in
Landlord's sole judgment, the structural integrity of the Building, (ii) affect
the Building Systems (as defined in Section 13 of the Lease) in such a manner
that will compromise, in Landlord's sole judgment, the proper operation and
performance of the Building Systems, (iii) require, in Landlord's sole judgment,
unusual expense to readapt the Premises to generic laboratory/office use on
lease termination or increase the cost of construction, insurance or taxes on
the Building or of Landlord's services called for by Section 11 of the Lease,
unless Tenant first gives assurances acceptable to Landlord that such
re-adaptation will be made prior to such termination without expense to Landlord
and makes provisions acceptable to Landlord for payment of such increased cost,
or (iv) fail, in Landlord's sole judgment, to conform to and be architecturally
harmonious with the building in terms of its design, construction and proposed
finishes, but which shall otherwise not be unreasonably withheld, conditioned or
delayed.
00 XXXXXXXX XXXXXX/XXXXXXXX THERAPEUTICS, INC.
PAGE 4
(a) TENANT'S RIGHT TO REQUEST CHANGES. If Tenant shall request
one or more Tenant Changes, Tenant shall request such Tenant Changes by
notifying Landlord in writing in substantially the same form as the AlA standard
change order form (a "CHANGE REQUEST"), which Change Request shall detail the
nature and extent of any such Tenant Change. Such Change Request must be signed
by Tenant's Representative. Landlord shall, before proceeding with any Tenant
Change, use its best efforts to respond to Tenant as soon as is reasonably
possible with an estimate of (i) the time it will take, and (ii) the
architectural and engineering fees and costs which will be incurred to analyze
such Change Request (which costs shall be paid from the TI Fund to the extent
actually incurred, whether or not such Tenant Change is implemented). Landlord
shall thereafter submit to Tenant in writing, within 5 business days of receipt
of the Change Request (or such longer period of time as is reasonably required
depending on the extent of the Change Request), an analysis of the additional
cost involved, including, without limitation, architectural and engineering
costs and general conditions costs related to the period of time, if any, that
the Tenant Change will extend the date on which the Tenant Improvements will be
Substantially Complete. Landlord will also make reasonable, good faith efforts
to include in such analysis any unusually long lead time required for any
materials, finishes or installations requested by Tenant in any such Change
Request. Any such delay in the completion of the Tenant Improvements caused by a
Tenant Change, including any suspension of work on the Tenant Improvements while
any such Tenant Change is being evaluated and/or designed, shall be a Tenant
Delay.
(b) IMPLEMENTATION OF TENANT CHANGES. If Tenant: (i) approves in
writing the cost or savings and the estimated extension in the time for
completion of the Tenant Improvements, if any, and (ii) deposits with Landlord
any Excess TI Costs (as defined in Section 5 below) required in connection with
such Tenant Change, Landlord shall cause the approved Tenant Change to be
instituted. Notwithstanding any approval or disapproval by Tenant of any
estimate of the delay caused by such proposed Tenant Change, the TI Architect's
determination of the amount of Tenant Delay in connection with such Tenant
Change shall be final and binding on Landlord and Tenant.
45. COSTS.
(a) TI COSTS. "TI COSTS" shall include all costs incurred in
connection with the design and construction of the Tenant Improvements,
including, without limitation, (i) the cost of preparing the Preliminary TI
Plans, the Approved TI Plans, the TI Permit Drawings, any additional required
plans or drawings, and all construction costs and equipment and installation
costs. Landlord shall pay for the TI Costs.
(b) EXCESS TI COSTS. EXCESS TI COSTS shall include (a) all costs
incurred in connection with the design and construction of Tenant Changes and
(b) Landlord's out-of-pocket expenses resulting from Tenant Delays. Promptly
upon Tenant's approval thereof, in the case of Tenant Changes, or upon
Landlord's notice specifying Landlord's estimated out-of-pocket expenses
resulting from Tenant Delays, Tenant shall pay to Landlord an amount adequate to
cover 100% of the Excess TI Costs (such amount, the "EXCESS TI FUND"). If Tenant
fails to deposit, or is late in depositing, the Excess TI Fund with Landlord,
Landlord shall have all of the rights and remedies set forth in the lease for
nonpayment of Rent (including, but not limited to, the right to interest at the
Default Rate and the right to assess a late charge), and for purposes of any
litigation instituted with regard to such amounts the same will be considered
Rent.
(c) DISBURSEMENTS. Landlord shall pay the TI Costs incurred during
the design and construction of the Tenant Improvements and, to the extent Tenant
has funded the Excess TI Costs as provided in Section 5(b) hereof, Landlord
shall pay the cost of Tenant Changes. Notwithstanding anything to the contrary
set forth in this Section 5(c). Tenant shall be fully and solely liable for the
Excess TI Costs. Landlord shall provide for at least 5% retainage to be held
from the TI Construction Manager and the construction subcontractors until the
time of final completion (ie., the completion of punch-list items, and shall
obtain final lien waivers from the TI Construction Manager and the construction
subcontractors upon issuance of final payments thereto. If upon completion of
the Tenant Improvements and Tenant Changes and the payment of all sums due in
connection therewith there remain any undisbursed funds in the Excess TI Fund,
Landlord shall return to Tenant such undisbursed Excess TI Fund solely to the
extent of any Excess TI Costs deposit Tenant has actually made with Landlord.
46. TENANT ACCESS.
(a) TENANT'S ACCESS RIGHTS. Landlord hereby agrees to permit
Tenant access, at Tenant's sole risk and expense, to the Building (i) 30 days
prior to the anticipated date of Substantial Completion of the Tenant
00 XXXXXXXX XXXXXX/XXXXXXXX THERAPEUTICS, INC.
PAGE 5
Improvements to perform any work ("TENANT'S WORK") required by Tenant other than
the Tenant Improvements and provided that such Tenant's Work is coordinated with
the TI Architect and the TI Construction Manager, and complies with the lease
and all other reasonable restrictions and conditions Landlord may impose, and
(ii) prior to the completion of the Tenant Improvements, to inspect and observe
work in process; all such access shall be during normal business hours or at
such other times as are reasonably designated by Landlord. Notwithstanding the
foregoing, Tenant shall have no right to enter onto the Premises or the Project
unless and until Tenant shall deliver to Landlord evidence reasonably
satisfactory to Landlord demonstrating that any insurance reasonably required by
Landlord in connection with such pre-commencement access (including, but not
limited to, any insurance which Landlord may require pursuant to the lease) is
in full force and effect. Any entry by Tenant shall comply with all established
safety practices of Landlord's contractor and Landlord until completion of the
Tenant Improvements and acceptance thereof by Tenant.
(b) NO INTERFERENCE. Neither Tenant nor any Tenant Party shall
interfere with the performance of the Tenant Improvements, nor with any
inspections or issuance of final approvals by municipal authorities, and upon
any such interference, Landlord shall have the right to exclude Tenant and any
Tenant Party from the Premises and the Project until Substantial Completion of
the Tenant Improvements.
(c) NO ACCEPTANCE OF PREMISES. The fact that Tenant may, with
Landlord's consent, enter into the Project prior to the date the Tenant
Improvements are Substantially Complete for the purpose of performing any
Tenant's Work shall not be deemed an acceptance by Tenant of possession of the
Premises, but in such event Tenant shall indemnify and hold Landlord harmless
from any loss of or damage to Tenant's property, completed work, fixtures,
equipment, materials or merchandise, and from liability for death of, or injury
to, any person, caused by the willful misconduct or negligence of Tenant or any
Tenant Party.
47. MISCELLANEOUS.
(a) CONSENTS. Whenever consent or approval of either party is
required under this Work letter, such party shall not unreasonably withhold,
condition or delay such consent or approval, except as may be expressly set
forth herein to the contrary.
(b) MODIFICATION. No modification, waiver or amendment of this
Work Letter or of any of its conditions or provisions shall be binding upon
Landlord or Tenant unless in writing signed by Landlord and Tenant.
(c) COUNTERPARTS. This Work Letter may be executed in any number
of counterparts but all counterparts taken together shall constitute a single
document.
(d) GOVERNING LAW. This Work Letter shall be governed by,
construed and enforced in accordance with the internal laws of the state in
which the Premises are located, without regard to choice of law principles of
such State.
(e) TIME OF THE ESSENCE. Time is of the essence of this Work
Letter and of each and all provisions thereof.
(f) DEFAULT. Notwithstanding anything set forth herein or in the
Lease to the contrary, Landlord shall not have any obligation to perform any
work hereunder or to fund any portion of the TI Fund during any period Tenant is
in Default under the Lease.
(g) SEVERABILITY. If any term or provision of this Work Letter is
declared invalid or unenforceable, the remainder of this Work Letter shall not
be affected by such determination and shall continue to be valid and
enforceable.
(h) MERGER. All understandings and agreements, oral or written,
heretofore made between the parties hereto and relating to the Tenant
Improvements and Tenant's Work are merged in this Work Letter, which alone (but
inclusive of provisions of the Lease incorporated herein and the final approved
constructions drawings and
00 XXXXXXXX XXXXXX/XXXXXXXX THERAPEUTICS, INC.
PAGE 6
specifications prepared pursuant hereto) fully and completely expresses the
agreement between Landlord and Tenant with regard to the matters set forth in
this Work Letter.
(i) ENTIRE AGREEMENT. This Work Letter is made as a part of and
pursuant to the Lease and, together with the Lease, constitutes the entire
agreement of the parties with respect to the subject matter hereof. This Work
Letter is subject to all of the terms and limitation set forth in the Lease, and
neither party shall have any rights or remedies under this Work Letter separate
and apart from their respective remedies pursuant to the Lease.
TENANT:
CRITICAL THERAPEUTICS, INC., a Delaware
corporation
By: /s/ Xxxx Xxxxx
------------------------------
Its: President and CEO
LANDLORD:
ARE-60 WESTVIEW STREET, LLC, a Delaware
limited liability company
By: AREE Holdings, L.P., a Delaware
limited partnership, managing member
By: ARE-GP Holdings QRS Corp., a
Delaware corporation, general
partner
By: /s/ Xxxxx X. Xxxxxx
----------------------------
Its: Senior Vice President &
Chief Financial Officer
00 XXXXXXXX XXXXXX/XXXXXXXX THERAPEUTICS, INC.
PAGE 7
SCHEDULE A TO WORK LETTER
LANDLORD'S BASE BUILDING WORK
00 XXXXXXXX XXXXXX/XXXXXXXX THERAPEUTICS, INC.
PAGE 8
SCHEDULE B TO WORK LETTER
OUTLINE SPECIFICATIONS
00 XXXXXXXX XXXXXX/XXXXXXXX THERAPEUTICS, INC.
PAGE 9
SCHEDULE C TO WORK LETTER
PRELIMINARY PLANS
CRITICAL THERAPEUTICS
00 Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx
Richmond Project # 88303
Drawing List
Drawings as prepared by Xxxxx Xxxxx, Xxxxx & Doktor Architects, Manchester, MA:
No. Title Date Revision
Cover Sheet 10/16/03
A.01 Existing Floor Plan 10/16/03
A2.0 Floor Plan 10/16/03
A2.1 Dimension Plan (Not Used) 10/16/03
A2.2 Equipment Floor Plan 10/16/03
A2.3 Roof Plan 10/16/03
A2.4 Door Schedule/Types/Partition Types 10/16/03
A2.5 Finishes Plan (Not Used) 10/16/03
A3.0 Existing Exterior Elevations 10/16/03
A3.1 Detail Sections & Skylight 10/16/03
A5.0 Interior Elevations/Casework 10/16/03
A5.1 Interior Elevations/Casework 10/16/03
A5.2 Interior Elevations/Casework 10/16/03
A6.0 Reflected Ceiling Plan 10/16/03
A9.0 Miscellaneous Details & Sections 10/16/03
A9.1 Miscellaneous Details & Sections 10/16/03
FE1.0 Fire Extinguisher Plan 10/16/03
Drawing as prepared by Cameron Fire Protection Engineering, X. Xxxxxxx, MA:
FP1.0 Fire Protection Plan 10/20/03
Drawings as prepared by North Shore Mechanical Contractors, Topsfield, MA:
P0.0 Legend, Schedule & Specifications 10/16/03
P1.0 Under-Slab Plumbing 10/16/03
P2.0 Above-Slab Plumbing 10/16/03
P3.0 Above-Slab Air, Vac, CO2 & RODI Distribution Piping 10/16/03
Drawings as prepared by Environmental Systems., Inc. Attleboro, MA:
M1.1 HVAC Floor Plan 09/24/03 10/16/03
M1.2 HVAC Piping 09/24/03 10/16/03
M1.3 HVAC Ceiling Plan 09/24/03 10/16/03
M2.1 HVAC Roof Plan 09/24/03 10/16/03
M3.1 HVAC Schedule & Details 09/24/03 10/16/03
Drawings as prepared by Interstate Electrical Contractors, North Billerica, MA:
E1.0 Electric Legends, Fire Alarms, Sched, Notes & Details 09/24/03 10/16/03
E1.1 Electric One-Line Diagram 09/24/03 10/16/03
00 XXXXXXXX XXXXXX/XXXXXXXX THERAPEUTICS, INC.
PAGE 10
E1.2 Electric Schedule 09/24/03 10/16/03
E1.3 Electric Panel Board Schedule & Details 09/24/03 10/16/03
E2.0 Electric Lighting Floor Plan 09/24/03 10/16/03
E3.0 Electric Power Floor Plan 09/24/03 10/16/03
00 XXXXXXXX XXXXXX/XXXXXXXX THERAPEUTICS, INC.
PAGE 1
EXHIBIT D TO LEASE
ACKNOWLEDGMENT OF RENT COMMENCEMENT DATE
This ACKNOWLEDGMENT OF RENT COMMENCEMENT DATE is made as of this ______
day of _____________, 2004, between ARE-60 Westview Street, LLC, a Delaware
corporation ("LANDLORD"), and Critical Therapeutics, Inc., a Delaware
corporation ("TENANT"), and is attached to and made a part of the Lease dated as
of November ____, 2003 (the "LEASE"), by and between Landlord and Tenant. Any
initially capitalized terms used but not defined herein shall have the meanings
given them in the Lease.
Landlord and Tenant hereby acknowledge and agree, for all purposes of
the Lease, that the "Commencement Date" of the Base Term of the Lease is
November ____, 2003, the "Rent Commencement Date" is ____________________,
_________________and the termination date of the Base Term of the Lease shall be
midnight on _________________,_____________________
IN WITNESS WHEREOF, Landlord and Tenant have executed this
ACKNOWLEDGMENT OF COMMENCEMENT DATE to be effective on the date first above
written.
TENANT:
CRITICAL THERAPEUTICS, INC., a Delaware
corporation
By: /s/ Xxxx Xxxxx
------------------------------
Its: President and CEO
LANDLORD:
ARE-60 WESTVIEW STREET, LLC, a Delaware
limited liability company
By: AREE Holdings, L.P., a Delaware
limited partnership, managing member
By: ARE-GP Holdings QRS Corp., a
Delaware corporation, general
partner
By:
---------------------------
Its:
---------------------------
00 XXXXXXXX XXXXXX/XXXXXXXX THERAPEUTICS, INC.
PAGE 1
EXHIBIT E TO LEASE
RULES AND REGULATIONS
1. The sidewalk, entries, and driveways of the Project shall not
be obstructed by Tenant, or any Tenant Party, or used by them for any purpose
other than ingress and egress to and from the Premises.
2. Tenant shall not place any objects, including antennas,
outdoor furniture (except of the type and in the locations agreed to by
Landlord), etc., in the parking areas, landscaped areas or other areas outside
of its Premises, or on the roof of the Project.
3. Except for animals assisting the disabled, no companion
animals shall be allowed in the offices, halls, or corridors in the Project.
4. Tenant shall not disturb the occupants of the Project or
adjoining buildings by the use of any radio or musical instrument or by the
making of loud or improper noises.
5. If Tenant desires telegraphic, telephonic or other electric
connections in the Premises, Landlord or its agent will direct the electrician
as to where and how the wires may be introduced; and, without such direction, no
boring or cutting of wires will be permitted. Any such installation or
connection shall be made at Tenant's expense.
6. Tenant shall not install or operate any steam or gas engine or
boiler, or other mechanical apparatus in the Premises, except as specifically
approved in the lease. The use of fuel oil, gasoline or inflammable liquids for
heating, lighting or any other purpose is expressly prohibited; except the use
of propane or other similar fuel for the purpose of operating benchtop Bunsen
burners or similar laboratory apparatus. Explosives or other articles deemed
extra hazardous shall not be brought into the Project.
7. Parking any type of recreational vehicles is specifically
prohibited on or about the Project. Except for the overnight parking of
operative vehicles, no vehicle of any type shall be stored in the parking areas
at any time. In the event that a vehicle is disabled, it shall be removed within
48 hours. There shall be no "For Sale" or other advertising signs on or about
any parked vehicle. All vehicles shall be parked in the designated parking areas
in conformity with all signs and other markings. All parking will be open
parking, and no reserved parking, numbering or lettering of individual spaces
will be permitted except as specified by Landlord.
8. Tenant shall maintain the Premises pest free.
9. Landlord reserves the right to exclude or expel from the
Project any person who, in the judgment of Landlord, is intoxicated or under the
influence of liquor or drugs or who shall in any manner do any act in violation
of the Rules and Regulations of the Project.
10. Tenant shall not cause any unnecessary labor by reason of
Tenant's carelessness or indifference in the preservation of good order and
cleanliness. Landlord shall not be responsible to Tenant for any loss of
property on the Premises, however occurring, or for any damage done to the
effects of Tenant by the janitors or any other employee or person.
11. Tenant shall give Landlord prompt notice of any defects in
the water, lawn sprinkler, sewage, gas pipes, electrical lights and fixtures,
heating apparatus, or any other service equipment affecting the Premises.
12. Tenant shall not permit storage outside the Premises,
including without limitation, outside storage of trucks and other vehicles, or
dumping of waste or refuse or permit any harmful materials to be placed in any
drainage system or sanitary system in or about the Premises.
13. All moveable trash receptacles provided by the trash disposal
firm for the Premises must be kept in the trash enclosure areas, if any,
provided for that purpose.
00 XXXXXXXX XXXXXX/XXXXXXXX THERAPEUTICS, INC.
PAGE 2
14. No auction, public or private, will be permitted on the
Premises or the Project.
15. No awnings shall be placed over the windows in the Premises
except with the prior written consent of Landlord.
16. The Premises shall not be used for lodging, sleeping or
cooking or for any immoral or illegal purposes or for any purpose other than
that specified in the lease. No gaming devices shall be operated in the
Premises.
17. Tenant shall ascertain from Landlord the maximum amount of
electrical current which can safely be used in the Premises, taking into account
the capacity of the electrical wiring in the Project and the Premises, and shall
not use more than such safe capacity. Landlord's consent to the installation of
electric equipment shall not relieve Tenant from the obligation not to use more
electricity than such safe capacity.
18. Tenant assumes full responsibility for protecting the
Premises from theft, robbery and pilferage.
19. Tenant shall not install or operate on the Premises any
machinery or mechanical devices of a nature not directly related to Tenant's
ordinary use of the Premises and shall keep all such machinery free of
vibration, noise and air waves which may be transmitted beyond the Premises.
00 XXXXXXXX XXXXXX/XXXXXXXX THERAPEUTICS, INC.
PAGE 1
EXHIBIT F TO LEASE
TENANT'S PERSONAL PROPERTY
None except as set forth below:
Exhibit A
Outline Base Building Specifications
00 Xxxxxxxx Xxxxxx
XXXX XXXXXXXX / XXXXXX IMPROVEMENTS
ELEMENT DESCRIPTION BASE BUILDING TENANT IMPROVEMENTS
SITEWORK Repaved and reconfigured driveways and parking X
lot per proposed site plan. Parking lot to
accommodate about 115 spaces.
New exterior landscaping in parking areas and X
around building per proposed landscape plans.
Existing 4" domestic water and 6" fire service X
to building.
New exterior pedestal signage per Alexandria X
spec and Town of Lexington requirements.
Upgrade site lighting and irrigation system X
CONCRETE Install new concrete steps and wheelchair ramps X
at side entries.
Place/finish concrete slab on grade at recessed X
floor areas and interior trench areas.
STRUCTURAL METALS/ Framing for new metal and glass canopies at X
MISC. IRON front and two side entrances.
Structural upgrade as needed to accommodate base X
building roof-mounted equipment.
Structural upgrade as needed to accommodate X
future tenant roof-mounted equipment.
Miscellaneous metal items (lintels, canopy X
framing, etc.) related to shell building
construction.
Miscellaneous metal items related to tenant X
fit-out
1
ELEMENT DESCRIPTION BASE BUILDING TENANT IMPROVEMENTS
EXTERIOR Exterior wall/window modifications to include X
new increased window area and new architectural
metal panel and vertical siding system.
New architectural metal canopies at front and X
two side entrances
Glaxed clerestory at front canopy and lobby. X
ROOFING Modifications to existing 7-year-old EPDM roof
as required.
Walkway pads to base building mechanical X
equipment as required.
Walkway pads to tenant mechanical equipment as X
required.
Roof screen for base building mechanical X
equipment as required.
Roof screen for tenant mechanical equipment as X
required.
COMMON AREAS Finished first floor building lobby to be X
designed in conjunction with tenant
improvements. Landlord to provide $.50/rsf
allowance for lobby construction and finishes.
Existing toilet/shower rooms to be fully X
refurbished with thin-set ceramic tile floors
and wet walls, drywall/ acoustic ceilings,
Corian or equal lavatory counters.
Finished shell building electrical room and X
water service room.
Finished loading area with 2 truck bays and X
dumpster pad.
Existing detached hazmat storage structure X
available for tenant use.
Finished first floor lab waste system room for X
tenants neutralization system.
2
ELEMENT DESCRIPTION BASE BUILDING TENANT IMPROVEMENTS
Doors and frames at common areas: aluminum and X
glass at new entries; hollow metal frames and
hollow metal doors at service areas, solid core
wood doors at other areas, and heavy-duty lever
hardware.
Doors and frames at tenant areas. X
Finished storage rooms for flammable and X
radioactive waste.
WINDOW TREATMENT Building standard blinds on all windows. X
TENANT AREAS Finished drywall inside face of exterior wall, X
with vapor barrier and xxxxx.
Partitions, ceilings, flooring, painting, X
finishes, doors, millwork, and all office and
laboratory build-out within tenant area.
Lab casework and fume hoods. X
EQUIPMENT Warm/cold rooms, including roof-mounted X
condensers.
Air compressors, vacuum pumps, steam generators, X
bottled gas manifolds.
PLUMBING Gas piping from meter to base building X
mechanical equipment.
Gas piping from mechanical room to laboratory X
outlets and remote equipment.
New 4" water service & new double check valve X
assemblies and backflow prevention as needed.
Domestic cold and hot water supply piping, with X
electric water heaters, from meter to all toilet
rooms.
Sanitary sewer waste and vent from toilet rooms. X
Industrial wastewater connection to sewer system X
per MWRA requirements.
3
ELEMENT DESCRIPTION BASE BUILDING TENANT IMPROVEMENTS
Laboratory waste and vent system from lab sinks, X
equipment, and floor drains, including pumps as
needed.
Laboratory wastewater pretreatment systems per X
MWRA standards.
Non-potable cold water system from water service X
room to all lab sinks and equipment requiring
cold water.
Electric or gas fired water heaters for X
non-potable water system.
Non-potable hot water distribution to all X
laboratory sinks and equipment requiring hot
water.
Tempered water systems to eye wash units and X
emergency showers in laboratory area.
Laboratory vacuum system and distribution piping to X
outlets.
Compressed air system and distribution piping to X
outlets.
Special gas cylinders and distribution piping to X
outlets.
Purified water system and distribution piping to X
outlets.
Purified water backwash reclamation system per X
MWRA requirements.
FIRE PROTECTION Combination sprinkler/standpipe system with fire X
department valves.
Alarm check-valve and Siamese connection. X
Flow control valve assemblies and test drains. X
Sprinkler coverage to all core areas. X
Flow switches, tamper switches, pressure X
switches.
4
ELEMENT DESCRIPTION BASE BUILDING TENANT IMPROVEMENTS
Branch distribution. X
Modification of sprinkler piping and head layout X
to suit tenant build-out package.
HVAC New HVAC supply system, including high X
efficiency gas-fired boilers, roof-mounted
air-cooled chillers and/or DX systems, main
distribution air handlers, hot and chilled
waters pumps and water treatment system, all
sized to provide 1.5 CFM/sf of conditioned
make-up air.
Air distribution system designed to meet tenant X
requirements, including main and secondary
ductwork, fan and terminal boxes, valves and
dampers, hot water reheat system, registers,
diffusers, and grilles, and DDC system.
Laboratory and general exhaust system including X
ductwork, dampers, and roof-mounted exhaust
equipment.
All supplemental heating, cooling and X
humidification requirements for specialized
areas such as clean rooms, animal rooms, etc.
ELECTRIC Existing House Main Switchboard consisting of X
2,500 amps at 480/277 volts
Tenant Main Switchboard(s) 480/277V, 3-phase, X
sized to meet tenant loads.
Standby power generator, sized to meet tenant X
requirements
Transfer switch and standby power panels located X
in tenant switchgear rooms.
Tenant electric distribution from main X
switchgear area to include main distribution
conduit, dry type transformers, remote
480/277-volt and 120-volt panels, feeders to
tenant lighting, HVAC equipment, lab equipment,
and outlets. Existing conduit, transformers, and
feeders to be reused as appropriate.
5
ELEMENT DESCRIPTION BASE BUILDING TENANT IMPROVEMENTS
Exit/emergency life safety lighting consisting X
of battery packs in the lobbies, loading dock,
and common mechanical spaces.
Life safety lighting in tenant spaces to be X
battery packs or integral emergency battery
normally "ON" lighting fixtures.
New City-connected addressable fire alarm system X
including code-required devices at lobbies,
loading dock, and common mechanical spaces.
Fire alarm devices in tenant spaces as required X
by code.
Security system components including card X
access, equipment monitoring, security cameras,
etc.
Telecommunications cabling, outlets, equipment X
within tenant areas.
6
CRITICAL THERAPEUTICS
00 XXXXXXXX XXXXXX, XXXXXXXXX, XXXXXXXXXXXXX BUILDING AREA 40,200 GSF
OUTLINE SPECIFICATIONS TENANT IMPROVEMENT AREA 34,350 NSF
29-Jul-03 37,042 RSF
DIVISION / DESCRIPTION QTY
---------------------- ---
DEMOLITION AND SITEWORK
CUT OUT SKYLIGHT ROOF OPENINGS 10 EA
CUT IN NEW PERSONNEL DOOR OPENINGS @ MASONRY WALL 1 EA
INSTALL NEW MASONRY LINTELS @ WALL OPENINGS W/ SHORING 1 EA
SAWCUT, REMOVE CONC., E&B & REPLACE SLAB FOR UNDERSLAB PIPE 475 LF
EXCAVATE AND STONE BASE FOR PADS & GENERATOR PAD INCL
REINFORCED CONCRETE
CONCRETE EQUIPMENT PADS 2 EA
CORING FOR UTILITIES INCL
GENERATOR PAD 250 SF
ELECTRICAL FLOOR BOX CUTS & REPAIR 3 EA
MISC. CONCRETEWORK INCL
STRUCTURAL METALS & MISC. IRON
FRAME OPENINGS FOR SMALL PENETRATIONS 14 EA
NEUTRALIZATION PIT LADDER 1 EA
CUT IN ROOF OPENINGS 14 EA
STEEL SKYLIGHT FRAMING 10 EA
NEW STEEL LINTELS 1 EA
RIGGING INCL
SUPPORT BEAM FOR PARTITION AT CAFETERIA INCL
STAINLESS STEEL AUTOCLAVE ENCLOSURE TRIM INCL
CARPENTRY / MILLWORK
STORAGE ROOM SHELVING 1 ALW 2,500
COPY / PRINTER COUNTER & CABINETS 12 LF
LAB COAT POLES & SHELF 4 EA
MAIN CONF RM CREDENZA W/ LOWER & UPPER CABINETS 12 LF
CONFERENCE RM CREDENZA W/ BASE CABS (MAPLE EXT MELAMINE INT) 44 LF
MAILROOM P-XXX TOP W/ P-XXX / MELAMINE BASE CABINETS 15 LF
P-XXX ABOVE COUNTER MAILROOM SLOTS 10 LF
2 TIER ADJUSTABLE SHELVING (OFFICE AREA) 200 LF
CAFETERIA P-XXX COUNTER W/ P-XXX CABINETS ABOVE & BELOW 11 LF
COAT AREA SHELF AND POLES INCL
BLOCKING FOR CASEWORK, COUNTERS, SHELVES & MILLWORK INCL
GENERAL MILLWORK INSTALLATIONS LISTED ABOVE INCL
MISCELLANEOUS CARPENTRY 1 ALW 5,000
THERMAL & MOISTURE PROTECTION
PITCH POCKETS INCL
FLASH DUCT AND VENT PENETRATIONS INCL
PLUMBING AND VENT FLASHING INCL
FLASHING ALL NEW OPENINGS INCL
1
CRITICAL THERAPEUTICS
00 XXXXXXXX XXXXXX, XXXXXXXXX, XXXXXXXXXXXXX BUILDING AREA 40,200 GSF
OUTLINE SPECIFICATIONS TENANT IMPROVEMENT AREA 34,350 NSF
29-Jul-03 37,042 RSF
DIVISION / DESCRIPTION QTY
---------------------- ---
FLASHING SKYLIGHTS 10 EA
ROOF BLOCKING @ OPENINGS INCL
INTERIOR SEALANTS & CAULKING INCL
DOORS, FRAMES & HARDWARE
DOOR, FRAME, & HARDWARE ASSEMBLIES
3'-0" x 7'-0" METAL DOORS 34 EA
PAIR 1'-6" & 3'-0" X 7"-0" METAL DOORS 13 PR
PAIR 1'-6" & 3'-0" X 7"-0" WOOD DOORS 1 PR
3'-0" x 7'-0" STAIN GRADE DOORS 7 PLY ROTARY CUT DOORS 75 EA
PR 3'-0" x 7'-0" STAIN GRADE DOORS 7 PLY ROTARY CUT DOORS 1 PR
DOUBLE DOOR MACHINING 2 PR
DOOR CLOSERS 40 EA
SINGLE DOOR HARDWARE 104 EA
DOUBLE DOOR HARDWARE 5 EA
PRESSED METAL DOOR WELDED FRAMES (DOUBLE) 3 EA
PRESSED METAL DOOR WELDED FRAMES (SINGLE) 28 EA
PRESSED METAL DOOR FRAMES (DOUBLE) 2 EA
PRESSED METAL DOOR FRAMES (SINGLE) 81 EA
BORROWED LITES 75 EA
SINGLE DOOR & HARDWARE INSTALLATION 104 EA
DOUBLE DOOR & HARDWARE INSTALLATION 5 EA
ACCESS DOORS 8 EA
HOLD OPEN @ DOUBLE DOOR 1 EA
SPECIALTY DOOR HARDWARE @ ANIMAL AREA 1 ALW 4,500
TEMPORARY DOORS 4 EA
GLASS AND GLAZING
INTERIOR MIRRORS 1 EA
4'x 4' SKYLIGHTS 10 EA
BORROWED LITES 75 EA
INTERIOR WINDOW UNITS 44 EA
GYPSUM WALLBOARD & METAL STUD
BOX OUT INTERIOR COLUMNS 18 EA
DROPPED SOFFITS @ SKYLIGHTS 10 EA
SET DOOR FRAMES 000 XX
XXXX XXXXXXXX XXXX
XXX XXXX XXXXXX DRYWALL PARTITIONS 25875 SF
NEW 10' HIGH METAL STUD & DRYWALL PARTITIONS 19720 SF
GYP WALL BD W/ INSUL & FURRING 9960 SF
GYP BD CEILING @ ANIMAL ROOMS 2600 SF
MANLIFT INCL
SOUND SEAL WALL PENETRATIONS INCL
DOOR BLOCKING INCL
SUSPENDED CEILINGS
2 x 2 XXXXXXXXX TEGULAR SYSTEM @ FEATURE AREAS 1,417 SF
2 x 4 VINYL FACED GYP BO W/ STANDARD SUSPENSION SYSTEM 12,564 SF
2
CRITICAL THERAPEUTICS
00 XXXXXXXX XXXXXX, XXXXXXXXX, XXXXXXXXXXXXX BUILDING AREA 40,200 GSF
OUTLINE SPECIFICATIONS TENANT IMPROVEMENT AREA 34,350 NSF
29-Jul-03 37,042 RSF
DIVISION / DESCRIPTION QTY
---------------------- ---
2 x 4 FISSURED CEILING TILE W/ SUSPENSION SYSTEM 17,798 SF
FLOORING & TILE
CARPET @ OFFICE (CARPET ALLOW 21.00/SY MAT 5.50/SY INSTALL) 2,120 SY
LOBBY FLOORING (THIN SET 12'x 12' CERAMIC) 525 SF
VINYL COMPOSITION TILE 14,130 SF
VINYL BASE 4,500 LF
EPOXY FLOOR W/ FLASHED BASE 3,730 SF
FLOOR PREP INCL
CERAMIC FLOOR TILE 160 SF
CERAMIC WALL TILE 570 SF
PAINTING
PAINT INTERIOR LATEX PARTITIONS 64,000 SF
PAINT DOORS W/ FRAMES (METAL) 107 EA
PAINT DOORS W/ FRAMES (WOOD) 46 EA
PAINT GWB CEILINGS W/ WATERBASED EPOXY 2,600 SF
PAINT RECESSED SKYLIGHT SOFFITS 5 EA
PAINT WATERBASED EPOXY WALLS 8400 SF
EPOXY PAINT NEUTRALIZATION PIT 675 SF
PAINT MISCELLANEOUS INCL
SPECIALTIES AND FURNISHINGS
TOILET ACCESSORIES 1RM
HANDICAPPED TOILET PARTITIONS 1EA
CORNER GUARDS 30 EA
VINYL PROTECTIVE RAILS (ALLOW 400 LF) 400 LF
FIRE EXTINGUISHERS AND CABINETS 9EA
FIRE EXTINGUISHERS 9 EA
DOUBLE LOCKERS 8EA
COAT HOOKS 70 EA
PROJECTION SCREEN 1 EA
REFRIGERATOR 1 EA
MICROWAVE 1 EA
DISHWASHER 1EA
ACOUSTICAL FOLDING PARTITION AT CAFETERIA INCL
VERTICAL LEVELOR BLINDS ALW 8,500
INTERIOR BLINDS @ CONF ROOMS ALW 500
INTERIOR SIGNAGE ALW 1,500
INSTALL SPECIALTIES INCL
EQUIPMENT AND ENVIRONMENTAL ROOMS
VACUUM PUMP 1 EA
CLEAN AIR COMPRESSOR 1 XX
XXXX SYSTEM 1 EA
ACID NEUTRALIZATION SKID 1 EA
NP HOT WATER HEATER 2 EA
TEMPERED HOT WATER SKID 1 EA
3
CRITICAL THERAPEUTICS
00 XXXXXXXX XXXXXX, XXXXXXXXX, XXXXXXXXXXXXX BUILDING AREA 40,200 GSF
OUTLINE SPECIFICATIONS TENANT IMPROVEMENT AREA 34,350 NSF
29-Jul-03 37,042 RSF
DIVISION / DESCRIPTION QTY
---------------------- ---
CO2 MANIFOLD 1 EA
COLD ROOM (3 DEC C +/ -.5 DEG C) W/ CONTROL PNL & TEMP RECORD'R 291 SF
LABORATORY CASEWORK & FUME HOODS
P-XXX J PHENOLIC RESIN REAGENT SHELVING (2 SHELVES HIGH) 109 LF
30" BLACK EPOXY BENCHTOPS 1' THICK 274 LF
60' BLACK EPOXY BENCHTOPS 1' THICK 174 LF
INSTALL BENCHTOPS INCL
P-XXX / PHENOLIC RESIN UTILITY CHASES 8 EA
EPOXY RESIN SINKS 22 EA
DRYING RACKS 11 EA
P-XXX ADJUSTABLE WALL SHELVING (2 SHELVES HIGH - CONTINUOUS) 227 XX
XXXX CASEWORK 454 LF
KNEE SPACE SUPPORT 96 LF
INSTALL CASEWORK AND WALL SHELVING INCL
6' CHEM FUME HOODS W/ CW, CA, VAC, N2, LIGHT & 2EA DUPL OUTLETS 8 EA
5' CHEM FUME HOODS W/ CW, CA, VAC, N2, LIGHT & DUPL OUTLETS 2 EA
INSTALL CHEMICAL FUME HOODS 10 FA
PLUMBING
WATER CLOSET 2 EA
LAVATORIES 2 EA
ADA SHOWER 2 EA
KITCHEN SINK 1 EA
MOP BASIN 1 EA
LAB SINK (FIXTURES ONLY) 16 XX
XXXX FAUCETS / VALVE 13 EA
TURRETS (CDA) 33 EA
TURRETS VAC 19 EA
CAGEWASH SINK 2 EA
GLASSWASH SINK 1 EA
SURGERY SINK 1 EA
PROCEDURE SINK 3 EA
BOTTLEWASHER CONNECT 1 FA
ICE MACHINE CONNECT 1 EA
VENDING CONNECT 1 EA
INCUBATOR CONNECTS 17 EA
AUTOCLAVE CONNECTS 2 EA
GLASSWASH CONNECTS 1 EA
COLDROOM INDIRECT 1 EA
EMERGENCY SHOWER 4 EA
RECESSED EMERGENCY EYEWASH 4 EA
EMERGENCY SHOWER / EYEWASH COMBINATION 1 XX
XXXX CONNECTS 10 EA
TOILET FLOOR DRAIN 1 EA
ACID FLOOR DRAIN 1 EA
4
CRITICAL THERAPEUTICS
00 XXXXXXXX XXXXXX, XXXXXXXXX, XXXXXXXXXXXXX BUILDING AREA 40,200 GSF
OUTLINE SPECIFICATIONS TENANT IMPROVEMENT AREA 34,350 NSF
29-Jul-03 37,042 RSF
DIVISION / DESCRIPTION QTY
---------------------- ---
ACID FLOOR SINK 4 EA
DOMESTIC HOT WATER HEATER 1 EA
NATURAL GAS PIPING INCL
INSULATION INCL
CORING / SLEEVING INCL
SANITARY PIPING (L & M) INCL
DOMESTIC WATER PIPING (L & M) INCL
PERMIT / INSPECTIONS INCL
TAGS / MARKERS INCL
HANGERS INCL
NORMAL WORKING HOURS LABOR INCL
ONE YEAR WARRANTY INCL
FIRE PROTECTION
RECESSED HEADS INCL
CONCEALED HEADS INCL
ENGINEERING DESIGN INCL
HYDRAULIC CALCULATIONS INCL
HVAC
AHU-2 TO SERVE LAB & OFFICE AREA BETWEEN COL LINE 1 & 5 INCL
10 AIR CHANGES at LAB AREAS INCL
EXHAUST FOR 8-8' CFH'S & 2 - 5' CFH'S INCL
AHU-1 TO SERVE ANIMAL SPACE & OFFICE BETWEEN COL 5 & 9 INCL
SUPPLY VAV TERMINAL BOXES W/ HOT WATER COILS 7 EA
CONSTANT VOLUME XXXXXXXX XXXXX 00 XX
000 XX / XX ELECTRONIC STEAM HUMIDIFIER INCL
COMPLETE SUPPLY & EXHAUST DUCTWORK DISTRIBUTION SYSTEM INCL
EXTENSION AND ADDITION TO BASE BLD'G DDC SYSTEM INCL
ONE YEAR SYSTEM WARRANTY INCL
FIVE YEAR COMPRESSOR WARRANTY INCL
ELECTRICAL
NEW SWITCHGEAR, PANELS, TRANSFORMERS INCL
150 KW GENERATOR AND AUTOMATIC TRANSFER SWITCH INCL
DISTRIBUTION INCL
HVAC POWER WIRING INCL
FIRE ALARM INCL
EXIT / EMERGENCY LIGHTING INCL
LIGHTING/SWITCHING INCL
POWER WIRING OUTLETS INCL
EQUIPMENT WIRING INCL
TRIPLE GASKETED LIGHT FIXTURES @ ANIMAL FACILITY INCL
FIRE ALARM DEVICE TYPE AND QUANTITIES PER THE DRAWINGS INCL
POWER WIRING AND DEVICES INCL
MECH WIRING, DISCONNECTS & INSTALLATION OF MOTOR STARTERS INCL
TEMPORARY POWER & LIGHTING INCL
5
CRITICAL THERAPEUTICS
00 XXXXXXXX XXXXXX, XXXXXXXXX, XXXXXXXXXXXXX BUILDING AREA 40,200 GSF
OUTLINE SPECIFICATIONS TENANT IMPROVEMENT AREA 34,350 NSF
29-Jul-03 37,042 RSF
DIVISION / DESCRIPTION QTY
---------------------- ---
DAILY CLEANUP TO A SITE DUMPSTER INCL
WEEKLY SAFETY & JOB COORDINATION MEETINGS INCL
PRODUCT SUBMITTALS, OWNER'S MANUALS AND AS-BUILTS INCL
VOICE AND DATA OUTLET BOXES W/ CONDUIT AND PULL STRING INCL
INTERNAL EMERGENCY BATTERY BACK-UP BALLASTS IN LIGHTS INCL
POWER TO NEW MECHANICAL EQUIPMENT INCL
SUPERVISION
FIELD SUPERINTENDENT 19 WKS
PROJECT MANAGER (2.5 DAYS PER WEEK) 19 WKS
ASSISTANT PROJECT MANAGER (1 DAY PER WEEK) 15 WKS
PLANNER / ESTIMATOR 3.0 WKS
PROJECT SECRETARY, 1/4 TIME 19 WKS
PROJECT ACCOUNTANT, 1/5 TIME 19 WKS
PROJECT DIRECTOR 4 WKS
GENERAL CONDITIONS
JOBSITE TELEPHONE / FAX 5 MO
CONSTRUCT TEMPORARY OFFICE INCL
SET UP FIELD OFFICE INCL
COURIER / OVERNITE POSTAGE 5 MO
FIELD OFFICE FURNITURE INCL
FIELD OFFICE SUPPLIES & COPIER RENTAL 5 MO
FIELD OFFICE COMPUTER / PRINTER INCL
MISC. TOOLS & SUPPLIES 5 MO
PROJECT SIGN INCL
TEMP DRINKING WATER 5 MO
JOBSITE CLEANUP LABOR 19 WK
JOBSITE DUMPSTER 19 LDS
FINAL CLEANING INCL
TEMP. TOILETS (6 EA) 5 MO
REPRODUCTION OF CONTRACT DOCUMENTS INCL
PHOTOS INCL
SAFETY & BARRICADES INCL
TEMP ELECTRIC 5 MO
ENGINEERING
ARCHITECTURAL DESIGN INCL
STRUCTURAL ENGINEERING INCL
ELECTRICAL / MECHANICAL ENGINEERING INCL
INSURANCE AND PERMITS
GENERAL LIABILITY INSURANCE INCL
TOWN OF LEXINGTON GENERAL BUILDING PERMIT ($12/1000) INCL
THIS ESTIMATE IS BASED ON XXXXX, XXXXX AND XXXXX FLOOR PLAN DATED JULY 21, 2003.
EXCLUSIONS (THESE ITEMS ARE NOT INCLUDED IN THE TURN-KEY SPECIFICATION)
LABORATORY EQUIPMENT, FURNITURE AND SUPPLIES EXCEPT AS DESCRIBED ABOVE
OFFICE EQUIPMENT, FURNITURE AND SUPPLIES EXCEPT AS DESCRIBED ABOVE
AUTOCLAVE
CAGEWASH UNIT
GLYCOL HEAT RECOVERY LOOP
ELECTRIC DOOR INTERLOCK SYSTEM FOR VIVARIUM AIRLOCKS
REDUNDANT HVAC SYSTEM FOR VIVARIUM
CHEMICAL RADIOISOTOPE HOOD AND SUPPORTING INFRASTRUCTURE
6
CRITICAL THERAPEUTICS
00 XXXXXXXX XXXXXX, XXXXXXXXX, XXXXXXXXXXXXX BUILDING AREA 40,200 GSF
OUTLINE SPECIFICATIONS TENANT IMPROVEMENT AREA 34,350 NSF
29-Jul-03 37,042 RSF
DIVISION / DESCRIPTION QTY
---------------------- ---
7
