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Exhibit 10.19
SUBLEASE
This SUBLEASE is entered into as of this 17th day of November 1998, by and
between LeukoSite, Inc., a Delaware corporation with an address at 000 Xxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx, ("Sublessor") and Sage Networks, Inc., a
Delaware corporation ("Sublessee").
Recitals:
A lease was made on June 8, 1994 by and between Cambridge Athenaeum, LLC, a
Delaware limited liability company, as successor in interest to Xxxxxx X. Xxxxx
and K. Xxxxxx Xxxxxxxx, as Trustees of Athenaeum Realty Nominee Trust, under a
Declaration of Trust dated October 3, 1990 ("Landlord") and Sublessor, as
amended by that certain First Addendum to Lease dated June 30, 1994, as further
amended by that certain Second Amendment to Lease dated October 16, 1997, as
further amended by that certain Third Amendment to Lease dated February 9, 1998,
as further amended by that certain Fourth Amendment to Lease dated June 20, 1998
(collectively, the "Prime Lease", a copy of which is attached hereto as Exhibit
A) for approximately 36,341 square feet located in the basement, first floor,
second floor and fifth floor of the building known as 000 Xxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxxxxx. (herein, the "Building").
Sublessee desires to sublease from Sublessor a portion of the premises located
on the fifth floor of the Building and containing approximately 7,800 rentable
square feet (the "Premises") (as more particularly described on the plan
attached hereto as Exhibit B), together with the right to use in common with
others entitled thereto, the hallways, stairways and elevators necessary for
access to said Premises and the lavatories nearest thereto (the "Common Areas")
in accordance with and subject to the terms and conditions of the Prime Lease
and this Sublease.
NOW THEREFORE, for good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereto agree as follows:
1. Sublease/Term. Subject to the terms and conditions stated herein,
Sublessor hereby subleases to Sublessee the Premises and Sublessee hereby
subleases from the Sublessor the Premises commencing on the earlier of:
(i) December 1, 1998, or (ii) the date that the tenant presently occupying
the Premises vacates the Premises (the "Commencement Date") and expiring
on June 30, 1999, unless sooner terminated as herein provided ("Sublease
Term"). Provided, however, if the Commencement Date shall not occur before
January 15, 1999, Sublessee shall have the right to terminate this Lease
upon written notice to Sublessor. Sublessee
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shall have rights to use the Common Areas, in common with others entitled
thereto and subject to the terms of the Prime Lease.
2. Consent of Landlord. Sublessee acknowledges and agrees that this Sublease
and the liability of both Sublessor and Sublessee hereunder are expressly
conditioned and predicated upon and shall not become effective unless and
until the Sublessor herein has obtained from Landlord such written consent
and approval of this Sublease as is required under the Prime Lease and has
forwarded same to Sublessee pursuant to the notice provision noted herein.
In case of any conflict between the provisions of the Consent and this
Sublease, the provisions of the Consent shall prevail unaffected by the
Sublease.
Sublessor shall not be required to give any consent required or
permitted under the terms hereof with respect to any matter on which the
Prime Lease requires the consent of Landlord until it has first obtained
Landlord's prior written consent.
3. Use. Sublessee will use the Premises for general office purposes and for
no other purpose.
4. Base Rental Payments.
Dates Monthly Per Square Foot
----- ------- ---------------
Commencement Date -
06/30/1999 $18,850.00 $29.00
Sublessee shall pay rent payable in monthly installments on the first day
of each month after the Commencement Date and such payments shall be paid
by Sublessee to:
LeukoSite, Inc.
000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
or any such address as Sublessor may designate in writing to Sublessee. If
the date of this Sublease is other than the first day of a month, then
rent for such partial month shall be prorated on a per diem basis. Rent
for the first month or partial month, as the case may be, shall be due on
the Commencement Date. Sublessee shall pay all of the foregoing sums
without prior demand by Sublessor or setoff by Sublessee except as
otherwise provided herein.
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If any installment of Base Rent or any other sums due hereunder are not
paid when due, such delinquent sums shall bear interest at a rate equal to
eighteen percent (18%) per annum (the "Delinquency Rate") or, if such rate
is in excess of any maximum interest rate permissible under applicable
law, the Delinquency Rate shall be the maximum interest rate permissible
under applicable law, commencing with the due date and continuing through
the day preceding the date on which payment of such delinquent sum with
interest thereon is paid.
5. Additional Rent. In addition to the base rent, the Sublessee shall pay as
"additional rent," Sublessee's proportionate share of CAO Building
(operating expenses as defined in the Prime Lease) and Taxes (as defined
in the Prime Lease). Such Additional Rent to be paid in the manner set
forth in Section 6 of the Prime Lease. Sublessee's proportionate share
shall be 2.74% ("Proportionate Share").
6. Utilities: Upon the Commencement Date of this Sublease, Sublessee shall
pay for all gas, electricity, water and sewer and any other utilities
separately metered or sub-metered to the Premises. The Sublessee shall be
responsible for all utility company deposits applicable to the supply of
such services to the Premises. To the extent not separately metered,
Sublessee shall be responsible for the payment of its Proportionate Share
of all gas, electricity, water and sewer use and any other utilities not
separately metered or sub-metered to the Premises all as reasonably
determined by Sublessor and Landlord. Upon request by the Sublessor, the
Sublessee shall provide the Sublessor with evidence of payment of such
charges to the utility supplier. Sublessee shall defend, indemnify and
hold Sublessor harmless from and against any claim or liability
(including, but not limited to reasonable attorney's fees) arising from
such charges made by any such utility supplier for which Sublessee is
responsible.
7. Security Deposit. Sublessee has deposited a security deposit equivalent to
one months base rent in the amount of $18,850.00 (the "Security Deposit")
with Sublessor. Sublessor shall hold the Security Deposit as security for
the full and faithful payment or performance by Sublessee of its
obligations under this Sublease and not as prepayment of rent. Sublessor
shall not commingle the Security Deposit with other funds of Sublessor but
shall not be liable to Sublessee for the payment of interest thereon or
profits therefrom. Sublessor may expend such amounts from the Security
Deposit as may be necessary to cure an Event of Default and, in such case,
Sublessee shall pay to Sublessor the amount so expended, on demand. As
soon as reasonably practicable after the expiration of the Sublease Term,
Sublessor shall (i) inspect the Premises, (ii) make such
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payments from the Security Deposit as may be required to cure any
outstanding Events of Default hereunder and (iii) if no Event of Default
is then continuing, pay the balance of the Security Deposit to Sublessee.
8. Condition of Premises. Sublessee acknowledges that it has inspected the
Premises and is familiar with the physical condition thereof, and accepts
the Premises in its "As-Is" condition, free of all occupants. Sublessee
acknowledges that Sublessor has made no representations or warranties
regarding the Premises, and that it has relied on no such representations
or warranties in accepting the Premises. Sublessee acknowledges that
Sublessor shall have no obligation to do any work in or to the Premises or
to incur any expense in connection therewith, in order to make the
Premises suitable and ready for occupancy and use by Sublessee.
9. Default. The occurrence of any of the following shall constitute an Event
of Default under this Sublease:
(1) Delinquency in the payment when due of base rent and any additional
rent or any other amount payable by Sublessee under this Sublease,
or any part thereof and such delinquency or failure to pay shall
continue for five (5) days after written notice from Sublessor.
(ii) Delinquency by Sublessee in the performance or compliance with any
of the terms, covenants or agreements to be performed under this
Sublease or the Prime Lease, and failure to rectify or remove said
default(s) within fifteen (15) days after written notice from
Sublessor or Landlord of such default.
(iii) Filing by or against Sublessee in any court pursuant to any federal
or state statute or a petition in bankruptcy or insolvency, or for
reorganization or rearrangement, or for the appointment of a
receiver or trustee of all or a portion of Sublessee's property, or
any assignment of the property of Sublessee for the benefit of
creditors, and such filing, petition, appointment of receiver or
trustee or assignment for the benefit of creditors is not dismissed
within thirty (30) days.
(iv) Assignment or encumbrance of this Sublease or subletting of the
Premises other than in accordance with the terms of this Sublease.
(v) Sublessee shall abandon the Premises.
(vi) Any attachment is made of the Sublessee's leasehold interest in the
Premises.
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10. Right to Re-Enter. Upon an Event of Default, Sublessor shall have the
immediate right to re-enter and remove all persons and property within the
Premises. Such property may be removed and stored in a public warehouse or
elsewhere at the cost of, and for the account of Sublessee, all without
service of notice and without Sublessor being deemed guilty of trespass,
or liable for any loss or damage. All of the rights and remedies of
Sublessor under this Sublease are cumulative and shall be in addition to
any other rights or remedies accorded Sublessor by law. Sublessor shall
have all rights of Landlord in an Event of Default as set forth in Section
18 of the Prime Lease.
11. Right to Relet. Should Sublessor elect to reenter, or take possession by
summary proceeding or other appropriate legal action or proceedings, or
pursuant to notice provided for by law, it may either terminate this
Sublease or from time to time, without terminating this Sublease, make
such alterations and repairs necessary to relet, and relet the Premises or
any part thereof for such term or terms, and at such rental or rentals and
upon such other terms and conditions as Sublessor in its sole discretion
may deem advisable. Upon each such reletting, all rentals and other sums
received by Sublessor shall be applied;
(i) to the payment of any indebtedness other than rent due;
(ii) to the payment of any costs and expenses of reletting, including
brokerage and reasonable attorneys' fees, and costs of alterations
and repairs in order to restore the Premises to its condition as of
the Commencement Date, reasonable wear and tear excepted;
(iii) to the payment of rent and other charges due and unpaid hereunder.
12. Assignment And Subletting. Sublessee shall not assign its rights under the
Sublease in whole or in part or sublet all or any part of the Premises or
assign, transfer or hypothecate by operation of law or otherwise all or
any part of the Prime Lease or this Sublease without Sublessors' and
Landlords' express prior written consent which consent shall be given or
withheld at Sublessor's and Landlord's sole discretion.
13. Notices. Any notice, requests, demands and other communications between
the parties relating to the Sublease shall be in writing and addressed as
follows:
If to Sublessor:
LeukoSite, Inc.
000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
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Attention: Xx. Xxxxxx Xxxxxxxx
If to Sublessee:
Sage Networks, Inc.
000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Controller
with a copy to:
Sage Networks, Inc.
00 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxx Xxxxxx, XX 00000
Attention: Xxxxx Xxxxx, Esq.
No notice from Sublessee to the Landlord shall be effective as to
Sublessor unless Sublessee delivers a copy of such notice in the manner
set forth in this section to Sublessor simultaneously with delivery of
such notice to Landlord. No notice from Sublessee to Sublessor shall be
effective as to Sublessor or Landlord unless Sublessee delivers a copy of
such notice in the manner set forth in this Section to Landlord
simultaneously with delivery of such notice to Sublessor. Any notice shall
be deemed duly given (i) when delivered by hand, if so delivered and a
receipt obtained, or (ii) the next day after being delivered to an
overnight courier with acceptance signature required.
14. Terms Subject to Prime Lease. This is a Sublease. Sublessor's interest in
the Premises is as a lessee under the Prime Lease and Sublessee's rights
pursuant to this Sublease are subject and subordinate at all times to the
Prime Lease and to all the covenants and agreements of the Prime Lease,
except as to those matters no longer applicable or superseded by this
Sublease. The rental payments required hereunder are substituted for the
rental payment requirements under Section 5 of the Prime Lease.
Sublessee acknowledges that it has read and understands the terms and
conditions of the Prime Lease and Sublessee expressly assumes and
covenants to Landlord and Sublessor to keep, perform and fulfill all of
the duties, obligations, terms and conditions which are to be kept,
performed and fulfilled by Sublessor as lessee under the Prime Lease as
the same relates to the Premises, whether or not expressly set forth in
this Sublease, and agrees to be bound by the terms of the Prime Lease as
the same relates to the Premises as fully and to the same extent as if
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Sublessee were lessee under the Prime Lease. Sublessee shall not do,
permit or tolerate anything to be done in, or in connection with
Sublessee's use or occupancy of the Premises which would violate any
covenant or agreement set forth in the Prime Lease. Sublessor shall have
the same rights against Sublessee with respect to the Sublease as the
Landlord has against the Sublessor as lessee pursuant to the Prime Lease
and Sublessee shall have the rights and obligations of lessee of the Prime
Lease, except where such rights and obligations are deleted, modified or
altered herein. In addition, if Sublessor receives an abatement of rent
under the Prime Lease which is applicable to the Premises, Sublessee shall
also receive a pro rata abatement of its rent hereunder.
The Landlord under the Prime Lease or Sublessor may enforce against
Sublessee, each in its own capacity, any of the rights granted to Landlord
pursuant to the Prime Lease, except as specifically provided in this
Sublease. Sublessor may not grant to Sublessee, and nothing in this
Sublease shall be construed or interpreted to grant, any greater rights
than Sublessor has received as lessee from Landlord pursuant to the Prime
Lease.
15. Sublessor's Covenants. Sublessor warrants and represents that Exhibit A is
a true, correct and accurate copy of the Prime Lease. Except for the
amendments (first through fourth) attached thereto, there have been no
modifications or amendments of or changes to the Prime Lease. The Prime
Lease is in full force and effect and to the best of Sublessor's
knowledge, there are no defaults or violations thereunder on the part of
either Sublessor or Landlord.
Sublessor shall (i) comply with the covenants and terms of the Prime Lease
and (ii) not do or cause to be done or suffer or permit any act or thing
to be done or fail to do any act which would or might cause a default by
Sublessor under the Prime Lease or would cause the rights of Sublessor as
lessee thereunder to be canceled, terminated or forfeited, and shall
promptly deliver to Sublessee as soon as possible copies of any notices it
receives from Landlord under the Prime Lease applicable to the Premises.
16. Limitations of Sublessor's Obligations. Sublessee hereby acknowledges that
Sublessee will look solely to Landlord for the performance of all the
Landlords' obligations under the Prime Lease and agrees and acknowledges
that Sublessor shall have no obligation or responsibility whatsoever to
provide or perform any service, repair, alteration or other similar
obligations which are the obligations of Landlord to provide or perform
pursuant to the terms of the Prime Lease, provided however Sublessee may
look to Sublessor for the prompt and
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proper payment to the Landlord of all rents received hereunder. Sublessee
may exercise in Sublessor's name, any rights of Sublessor as Lessee to
enforce obligations of Landlord under the Prime Lease.
17. Insurance and Indemnities. Sublessee hereby agrees to indemnify and hold
each of Landlord and Sublessor harmless with regard to its leasing and use
of the Premises, to the same extent that Sublessor as Lessee, is required
to indemnify and hold Landlord harmless with respect to the Premises. The
foregoing indemnity shall include, but not be limited to, any claim or
cause of action arising as a result of the installation of phone systems
and computer cabling as described in Section 31 below.
Likewise, Sublessee hereby agrees to obtain and provide evidence
satisfactory to Sublessor, on or before the date of this Sublease, that
Sublessee is carrying insurance in the same amounts and of the same types
required to be carried by Lessee under the Prime Lease with regard to the
Premises. Any insurance required to be carried by Sublessee pursuant to
the provisions of the Prime Lease shall name Landlord and Sublessor as
additional insured.
18. No Waiver. Failure of either party to complain of any act or omission on
the part of the other party, no matter how long the same may continue,
shall not be deemed to be a waiver by such party of any of its rights
hereunder. No waiver by any party at any time of any other provision of
this Sublease shall be deemed a waiver or breach of any other provision of
this Sublease or a consent to any subsequent breach of the same or any
other provision hereunder. If any act or omission by any party shall
require the consent or approval of another party, such consent or approval
of such act or omission shall not operate as consent or approval on the
same or any subsequent occasion.
19. Partial Invalidity. If any provision of this Sublease is held by a court
of competent jurisdiction to be invalid, void or unenforceable in any
manner, the remaining provisions of the Sublease shall nonetheless
continue in full force and effect without being impaired or invalidated in
any way. In addition, if any provision of this Sublease may be modified by
a court of competent jurisdiction such that it may be enforced, then said
provision shall be so modified and as modified shall be fully enforced.
20. Corporate Authority. Sublessee warrants that the person executing this
Sublease on behalf of Sublessee has authority to do so and fully obligate
Sublessee to all terms and provisions of this Sublease. Sublessor warrants
that the person executing this Sublease on behalf of Sublessor
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has authority to do so and fully obligate Sublessor to all terms and
provisions of this Sublease.
21. Governing Law. This Sublease is being executed and delivered in the
Commonwealth of Massachusetts and the laws of this commonwealth shall
govern the validity, construction, enforcement and interpretation of this
Sublease.
22. Entire Agreement. This Sublease contains the entire understanding of the
parties hereto with respect to the subject matter contained herein,
supersedes all prior and contemporaneous agreements, understandings, and
negotiations, and no parole evidence of prior or contemporaneous
agreements, understandings and negotiations shall govern or be used to
construe or modify this Sublease. No modification or alteration hereof
shall be deemed effective unless in writing and signed by the parties
hereto.
23. Brokerage. Sublessee and Sublessor represent and warrant that neither
party has dealt with any broker in connection with this transaction other
than Sublessee having dealt with Xxxxxxxx Xxxxx & Company. Provided,
however, that in the event Sublessor or Sublessee enters into a
contractual relationship with a broker in connection with this Sublease,
Sublessor and Sublessee shall be responsible for all costs and brokerage
fees for such Broker with which they had a direct contractual
relationship. Furthermore, each of Sublessor and Sublessee shall indemnify
and hold the other party harmless from and against any liability and
expense (including reasonable attorneys' fees and disbursements) for any
other brokerage commission or finder's fee based on alleged actions of the
party making the indemnity or its agents or representatives. Each party's
liability hereunder shall survive any expiration or termination of this
Sublease.
24. Marginal Headings. The marginal headings hereof are inserted merely for
the convenience of the parties and shall not be used to construe or modify
the terms of this Sublease in any respect.
25. Terms. Capitalized terms used in this Sublease but not defined herein
shall have the meaning ascribed to them in the Prime Lease.
26. Holding Over. If Sublessee remains in possession of the Premises upon the
expiration or earlier termination of this Sublease, Sublessee will occupy
the Premises as a sublessee on a day-to-day basis at a rental rate of 200%
of then current rental rate plus all additional rent, subject to all
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conditions, provisions and obligations of this Sublease in effect on the
last day of the term.
27. Third Party Beneficiary. Sublessee acknowledges that the Landlord is a
third party beneficiary entitled to receive the benefits of the
representations, warranties and covenants made by, and the responsibility
of, Sublessee under this Sublease.
28. No Renewal. Sublessee shall have no renewal options.
29. Parties Bound. This Sublease shall be binding upon and inure to the
benefit of Sublessor and Sublessee and their respective heirs, personal
representatives, successors and assigns.
30. Covenant of Quiet Enjoyment. Sublessor covenants that, if Sublessee shall
timely perform all of its obligations hereunder, then, subject to the
provisions of this Sublease, Sublessee shall, during the term of this
Sublease, peaceably and quietly occupy and enjoy the full possession of
the Premises without hindrance by Sublessor or any party claiming through
or under Sublessor.
31. Parking. Sublessee shall have the right to use at the market rate charged
by Landlord to Sublessor under the Prime Lease and on a non-exclusive,
unreserved basis up to seven (7) unreserved parking spaces. Sublessee's
use of the parking spaces shall be subject to all reasonable rules and
regulations established by Landlord and Sublessor from time to time.
32. Early Access. Sublessor shall make reasonable efforts to make Premises
available in the event the tenant presently occupying the Premises vacates
early and gives possession of the Premises to Landlord. Provided, however,
that such early access and transfer of Premises to Sublessee shall be at
no additional cost to Landlord.
[THE REST OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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This SUBLEASE is executed as of the date set forth above.
SUBLESSOR:
LeukoSite, Inc.
By: /s/ [Illegible]
------------------------------------
Name: [Illegible]
-------------------------------
Title: VP
------------------------------
SUBLESSEE:
Sage Network, Inc.
By: /s/ Rajat Dharsava
------------------------------------
Name: Rajat Dharsava
-------------------------------
Title: COO
------------------------------
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Exhibit A
Prime Lease
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1 parties
2 lease premises
3.1 term
3.1.1 early occupancy
3.2 condition of the premises
3.3 completion of improvements
3.3.1 lessee's contractor
3.3.2 compliance with lease
3.3.3 first and second floor tenant improvement work
3.4 financing of tenant improvement work
4 rent
5 rent adjustments
5.1 rent adj - common area opt exp for buld
5.2 monthly payments
5.3 rent adj - taxes
5.3.1 lessor to pay taxes
5.3.2 lessess's share of taxes
5.3.3 rent adj - payment
5.3.4 tax adj
6 utilities and other services
7 use of leased premises
8 compliance with laws
9 risk of loss of personal effects
9a insurance - waiver of subrogation
10 maintenance of leased premises
11 alterations - addition
12 assignment - subletting
12a quiet enjoyment, convenant of title
13 subordination
14 lessor's access
15 indemnification and liability
16 holding over
16a further lessee covenants
17 fire, casualty
17.1 definition of "substantial damage" and "partial damage"
17.2 partial damage to the building
17.3 substantial damage to the building
17.4 abatement of rent
17a eminent domain
18 default and bankruptcy
18a default of landlord and mortgagee rights
18b bankruptcy or insolvency
19 rules and regulations
19a paragraph headings
20 broker
21 estoppel certificate
22 notice
23 surrender
24 option to extend
25 option to expand
26 hazardous waste indemnity
27 misc.
28 security deposit
Exhibit A map of space
Exhibit B map of camb.
Exhibit C Comdisco's landlord and mortgagee waiver and consent
Exhibit D lessee's equip eligible for removal
Exhibit E determination of fair market rent
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LEASE
1. PARTIES. XXXXXX X. XXXXX, and K. XXXXXX XXXXXXXX, as they are
Trustees of ATHENAEUM REALTY NOMINEE TRUST, under a Declaration of Trust dated
October 3, 1990 and not individually, ("LESSOR"), which expression shall include
their successors and assigns where the context so permits, do hereby lease to
LeukoSite, Inc., a Delaware corporation, ("LESSEE") which expression shall
include its successors and assigns, and the LESSEE hereby leases and shall
peaceably hold and enjoy the following described premises:
2. LEASED PREMISES. On the Commencement Date, or such earlier date
as LESSEE shall take occupancy thereof, the "Leased Premises" shall consist of a
portion of the basement, first, and second floor in the building located at 000
Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx, (the "Building") which basement space
contains two hundred (200) rentable square feet more or less, which first floor
space contains twelve thousand eight hundred ninety eight (12,898) rentable
square feet, more or less, and which second floor space contains eleven thousand
three hundred seventy (11,370) rentable square feet, more or less, as outlined
on the sketch contained in Exhibit Al (herein called the "Leased Premises").
The Leased Premises shall have as appurtenant thereto: (a) the right
to use in common with others entitled thereto, the
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entrances, lobbies, hallways, stairways, walkways, sidewalks, driveways, loading
docks, elevators and other common facilities in the Building necessary for
access to and enjoyment of the Leased Premises, or portion, and (b) the pipes,
conduits, wires, and appurtenant equipment serving the Leased Premises, or
portion thereof, in common with other portions of the Building subject, however,
to the following rights which are expressly excepted and reserved by LESSOR: (i)
the right, from time to time, to install, maintain, use, repair, relocate, place
and replace utility lines, pipes, ducts, conduits, wires, gas, electric, or any
other meters and fixtures located on or passing through any portion of the
Leased Premises to serve other portions of the LESSOR's property of which the
Leased Premises, or a portion thereof, are a part; (ii) the right to enter into
upon and across any portion of the Leased Premises to exercise any reserved
right of LESSOR hereunder; and (iii) the right from time to time to make
alterations or additions to the Building, and to permit others to do so from
time to time all as LESSOR may determine in its sole discretion, and without
LESSEE's consent in any instance; any such alterations or additions or
construction being performed in a manner so as not unreasonably to interfere
with the LESSEE's use and occupancy of the Leased Premises with any
construction, alteration or addition of the Leased Premises to be, except in the
case of an emergency, performed after normal business hours.
Subject to LESSOR's reserved rights specified above, there shall be
appurtenant to the Leased Premises the right to park
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two (2) passenger motor vehicles per 1,000 feet of occupied square feet in the
open, uncovered, parking areas as shown on Exhibit X. XXXXXX reserves the right
to designate the locations of the spaces to be utilized for such parking rights
by written notice to LESSEE, and to change the location of any or all of such
spaces by notice to LESSEE at any time and from time to time as LESSOR shall
solely determine. The parking spaces provided hereunder need not be contiguous.
3.1 TERM. The term (the "term") of this Lease shall be for a period
of five (5) years following the "Commencement Date". The "Commencement Date"
shall be that date which is six months after the date upon which this Lease is
executed ("Lease Execution Date"), but, in no event later than December 1, 1994.
As soon as may be convenient after the Commencement Date has been
determined, the LESSOR and the LESSEE agree to join with each other in the
execution, in recordable form, of a written declaration in which the
Commencement Date shall be stated.
3.1.1. EARLY OCCUPANCY. In the event a portion of the Leased
Premises are substantially completed and ready for occupancy and LESSEE shall
have given notice to LESSOR thereof, then LESSEE shall have the right to
commence use and occupancy of such portion of the Leased Premises subject to the
terms and conditions of this Lease. During the period of such partial use and
occupancy, LESSEE shall perform, comply with and abide by all of its
obligations, undertakings and covenants as if, and to the same extent, as though
the term had commenced; however, no obligation to pay Base Rent or
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Rent Adjustments, including tax payments shall accrue until the Commencement
Date.
3.2 CONDITION OF THE PREMISES. The Premises shall be delivered to
the LESSEE in their present "as is" condition, broom clean and free of any
tenants on the Lease Execution Date. LESSOR makes no representations or
warranties concerning the suitability of the Leased Premises for LESSEE's
purposes.
3.3 COMPLETION OF IMPROVEMENTS. The Leased Premises shall be
considered "ready for occupancy" on the date upon which the improvements to be
constructed by the LESSEE with respect to 9,398 square feet of the first floor
and 7,870 square feet of the second floor of the Leased Premises (hereinafter
"Tenant Improvement Work") are substantially completed. The Leased Premises
shall be deemed substantially completed notwithstanding the completion of work
and adjustment of equipment and fixtures or minor items of uncompleted work
(so-called "punch list" work items) remain to be done, if such work can be
completed after occupancy has been taken without causing unreasonable
interference with LESSEE's use of the Leased Premises.
On or before July 15, 1994, LESSEE shall provide to LESSOR complete
design development drawings and specifications for all Tenant Improvement Work
(the "Plans"). The Plans shall include all alterations, additions, equipment and
fixtures to be performed, constructed and installed in the Leased Premises. The
Plans shall require use of new materials of good quality, and all construction
shall be in compliance with applicable laws, ordinances, orders and
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regulations of governmental authorities and with requirements of LESSOR's
insurance underwriters.
Within five (5) business days of receipt of the Plans, the LESSOR shall
either approve said plans, which approval shall not be unreasonably withheld or
shall indicate in writing to LESSEE the specific reasons for not approving
LESSEE's plans. Within the succeeding ten (10) business days, LESSEE shall
correct the deficiencies noted and return the revised Plans to LESSOR for
approval. Once approved, LESSEE's Plans may not be modified in any material
respect except with LESSOR'S further approval. LESSOR's approval of the Plans
shall not constitute an acknowledgment that work done in conformity therewith
will so comply, and LESSEE shall be solely responsible for modifications to the
Plans required by any governmental agency or LESSOR's insurance underwriters.
3.3.1 LESSEE'S CONTRACTOR. LESSEE shall arrange with its own general
contractor to perform the work shown on the approved LESSEE'S Plans. The
identity of LESSEE's contractor shall be subject to LESSOR'S prior approval
(approval not to be unreasonably withheld or delayed). LESSEE shall procure and
convey to LESSOR all necessary governmental approvals, including, without
limitation, building and occupancy permits and all applicable approvals relative
to electrical, gas, water, heating and cooling, and telephone work, before
undertaking any work. LESSEE shall perform all work at its risk in a good and
workmanlike manner in accordance with LESSEE'S approved Plans employing new
materials of good quality with interior finishes being at least equal to the
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other parts of the Leased Premises. LESSEE shall furnish all ramps, chutes,
coverings, and the like necessary to protect other parts of the Building from
damage during the performance of the Tenant Improvement Work shown on the Plans.
Any resulting damage to other parts of the Building shall be repaired by LESSOR
at LESSEE's expense, reimbursement to be made promptly and deemed additional
rent. The performance of the Tenant Improvement Work shown on the Plans shall be
coordinated with all reasonable regulations of LESSOR with respect to the
performance of other work in the Building and the requirements of other
occupants thereof.
When any LESSEE Tenant Improvement Work is in progress, LESSEE shall
maintain or cause its contractor to maintain workmen's compensation insurance
required by law covering all persons employed in such Tenant Improvement Work
and such other insurance as may be required by LESSOR covering the additional
hazards due to such Tenant Improvement Work, in each case for the benefit of
LESSOR and such additional parties as LESSOR shall require. It shall be a
condition of LESSOR's approval of any plans for LESSEE's Work that certificates
of such insurance shall have been deposited with LESSOR. Prior to performing any
work in the Building, LESSEE's contractor shall obtain and file a statutory xxxx
xxxx protecting the Building and all ownership interests therein against the
imposition of liens by contractors, subcontractors, material suppliers and
laborers.
3.3.2. COMPLIANCE WITH LEASE. Prior to the Commencement Date, LESSEE shall
cause its employees, agents, contractors,
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subcontractors, material suppliers and laborers to observe and perform all of
LESSEE'S obligations under this Lease excepting only the obligations to pay Base
Rent and additional rent and other charges and excepting further the other
obligations in the Lease, the performance of which would be clearly incompatible
with construction and the installation of furnishings fixtures and equipment
pursuant herein.
3.3.3 FIRST AND SECOND FLOOR TENANT IMPROVEMENT WORK. At least sixty
(60) days prior to occupying and at least thirty (30) days prior to commencing
construction in the Supplemental Space, LESSEE shall provide to LESSOR complete
construction drawings and specifications for all Tenant Improvement Work for the
three thousand five hundred square feet on the first floor and three thousand
five hundred square feet on the second floor shown crosshatched on Exhibit A1,
(hereinafter the "Supplemental Spaces" and the tenant improvement work
hereinafter defined as the "Supplemental Space Tenant Improvement Work"). The
provisions of Paragraph 3.3, relating to the definition of substantial
completion and the Plan approval mechanism and 3.3.1, as they relate to the
contractor for the Supplemental Space, shall also apply to the Supplemental
Space Tenant Improvement Work.
3.4 FINANCING OF TENANT IMPROVEMENT WORK. LESSOR has agreed to
finance two hundred fifty thousand ($250,000.00) dollars of the tenant
improvement work referenced in paragraph 3.3 (Lessor's Contribution). Any and
all other costs and expenses over and above $250,000.00 shall be the sole and
exclusive
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responsibility of LESSEE. LESSEE shall submit to LESSOR such reasonable
documentation, including financial statements, as LESSOR deems necessary to
assure LESSOR of LESSEE's ability to fund its portion of the tenant improvement
buildout costs.
Disbursement of Landlord's Contribution shall be subject to such
reasonable conditions, including but not limited to processing time and
inspections, which may be imposed by LESSOR's lender. Payment of LESSEE'S
contractors will be on a pro-rata basis, that is proportional between LESSOR and
LESSEE in the same percentage that Landlord's Contribution bears to the total
construction contract for the Tenant Improvement Work. In no event shall LESSOR
be responsible for contributing more than $250,000 toward the Tenant Improvement
Work. LESSOR shall not be obligated to make its pro-rata contribution unless and
until the contractor's invoice has been approved by LESSEE and LESSEE has
provided LESSOR with evidence of its payment to the contractor for its pro-rata
obligation.
4. RENT. LESSEE covenants and agrees to pay to LESSOR annual base
rent ("Base Rent") in the amounts set forth or provided for below, by equal
payments of one-twelfth of such annual rate on the first day of each calendar
month in advance, the first monthly payment to be made on the Commencement Date,
and by payment in advance of a pro-rata portion of a monthly payment for any
portion of a month at the beginning or end of the term; all payments to be made
to LESSOR or such agent, and at such place, as LESSOR shall from time to time in
writing designate, the following being now so
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designated:
ATHENAEUM REALTY NOMINEE TRUST
THE ATHENAEUM GROUP
000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
During the first twenty one months of the Term the annual Base Rent shall
be $83.33 per month (calculated as 200 square feet in the basement multiplied by
$5.00 per square foot with no Base Rent for the first floor or second floor
space and no Outdoor Parking rent for the parking spaces otherwise available to
LESSEE under paragraph 2).
The Base Rent for the twenty second month of the Term shall be the sum of
the following:
(i) $12,458.73 (calculated as one twelfth of the Annual Base Rent for
9,398 square feet on the first floor and 7,870 square feet on the second floor
multiplied by $8.60 per square foot, and 200 square feet in the basement
multiplied by $5.00 per square foot, with no Base Rent for the Supplemental
Space); plus
(ii) the annual fair rental value of the parking spaces made available to
LESSEE, all to be reasonably determined by LESSOR ("Outdoor Parking"); it being
expressly understood and agreed to by the parties that the first five (5) spaces
taken by LESSEE shall be at no cost or charge to LESSEE.
The annual Base Rent for the twenty third and twenty fourth months of the
Term shall be the sum of the following:
(ii) $33,612.03 per month (calculated as one twelfth of the Annual Base
Rent for 9,398 square feet on the first floor and 7,870 square feet on the
second floor multiplied by $23.30 per square foot, and 200 square feet in the
basement multiplied by $5.00 per
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square foot, with no Base Rent for the Supplemental Space; plus
(ii) the annual fair rental value of the parking spaces made available to
LESSEE, all to be reasonably determined by LESSOR ("Outdoor Parking"); it being
expressly understood and agreed by the parties that the first five (5) spaces
taken by LESSEE shall be at no cost or charge to LESSEE.
The annual Base Rent for the third year of the Term, shall be the sum of
the following:
(i) $420,612.40 per year; (calculated as 9,398 square feet on the
first floor and 7,870 square feet on the second floor multiplied by $24.30 per
square foot, with no Base Rent for the Supplemental Space, plus 200 square feet
in the basement multiplied by $5.00 per square foot; plus
(ii) the annual fair rental value of the parking spaces made
available to LESSEE, all to be reasonably determined by LESSOR ("Outdoor
Parking"); it being expressly understood and agreed to by the parties that the
first five (5) spaces taken shall be at no cost or charge to LESSEE.
The Annual Base Rent for the fourth and fifth years of the Term, shall be
the sum of the following:
(i) $572,050.40 per year (calculated as 9,398 square feet on the
first floor and 7,870 square feet on the second floor multiplied by $27.80 per
square foot, plus the 7,000 square feet of the Supplemental Space multiplied by
$13.00 per square foot, plus 200 square feet in the basement multiplied by $5.00
per square foot); plus
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(ii) the annual fair rental value of the parking space made
available to LESSEE, all to be reasonably determined by LESSOR ("Outdoor
Parking"), it being expressly understood and agreed to by the parties that the
first five (5) spaces taken shall be at no cost or charge to LESSEE.
Notwithstanding the foregoing, if LESSEE expands into the Supplemental
Space prior to the fourth year of the Lease Term, LESSEE shall pay Base Rent
equal to $11.00 per square foot on an annualized basis. As set forth herein,
LESSEE shall provide LESSOR with at least sixty days notice of its intention to
occupy the Supplemental Space and the Base Rent allocable to the Supplemental
Space shall be due and payable as of that date which is the earlier of (i) the
sixtieth day after LESSEE's notice to LESSOR or (ii) that date upon which the
Supplemental Space is ready for occupancy.
Further, LESSOR agrees that it shall employ only one announced fair rental
parking value at any particular time during the term of the Lease for the
tenants of the Building, exclusive of any rental concessions it may grant
tenants. LESSOR reserves the right to change the announced fair rental parking
value as it deems reasonably necessary.
5. RENT ADJUSTMENTS.
5.1. RENT ADJUSTMENT - COMMON AREA OPERATING EXPENSES FOR THE
BUILDING. Commencing as of the Commencement Date and with respect to any
calendar year falling within the term, or fraction of a calendar year at the
beginning or end of the term, the LESSEE shall pay to the LESSOR, as additional
rent, the "LESSEE'S
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Proportionate Building Share" (defined below) of operating expenses attributable
to the Building ("CAO Building"). CAO Building shall include, but is not limited
to, the following: all costs and expenses incurred by the LESSOR in connection
with the insurance, operation, repair, maintenance and cleaning of or for the
Building and heating, plumbing, elevators, electrical, air-conditioning and
other systems, thereof, trash removal, janitorial services, security systems,
landscaping and lawn care services, walkway, driveway, parking and common
entryway upkeep, paving, snowplowing, snow and ice removal and general expenses
incurred by the LESSOR in connection with the insurance, operation and
maintenance of the Building, to keep the same in safe, secure condition but
excluding any management fee to affiliated entities or capital improvements
performed by LESSOR to the Building.
LESSEE'S Proportionate Building Share shall be that percentage, which is
equal to the ratio of the square footage of space constituting the Leased
Premises to the aggregate square footage of space in the Building. Provided
LESSEE is not then occupying the Supplemental Space, LESSEE'S Proportionate
Building Share during the first two years of the Lease Term shall be 6.04%. From
the earlier of (i) the Third Year of the Lease Term or (ii) LESSEE'S full
occupancy of the Supplemental Space, LESSEE's Proportionate Building Share shall
be 8.59%.
5.2 MONTHLY PAYMENTS. Beginning with the calendar year in which the
Commencement Date occurs, and in subsequent years during the term of this Lease,
the LESSEE shall pay to the LESSOR
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pro rata monthly installments of amounts due under Paragraphs 5.1 on account of
projected CAO Building Expenses for such year, calculated by the LESSOR on the
basis of the best and most recent budget or data available. Appropriate
adjustments of estimated amounts shall be made between LESSOR and LESSEE
promptly after the close of each calendar year to account for actual CAO
Building Expenses for such year, except that LESSOR may at its option, credit
any amounts due from it to LESSEE as provided above against any sums then due
from LESSEE to LESSOR under this Lease. The balance of any amounts due shall be
paid within twenty (20) days after written notice thereof.
5.3. RENT ADJUSTMENT - TAXES.
5.3.1. LESSOR TO PAY TAXES. The LESSOR shall be responsible for the
payment, before the same becomes delinquent, of all general and special taxes of
every kind and nature, including assessments for local improvements, and other
governmental charges which may be lawfully charged, assessed or imposed (herein
collectively called the "Taxes") upon the Building.
If at any time during the term the present system of ad valorem
taxation of real property shall be changed to that in lieu of the whole or any
part of the ad valorem tax on real property, there shall be assessed on LESSOR a
capital levy or other tax on the gross rents received with respect to the
Building or a federal, state, county, municipal, or other local income,
franchise, excise or similar tax, assessment, levy or charge (distinct from any
now in effect) measured by or based, in whole or in part, upon any such
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gross rents, then any and all of such taxes, assessments, levies or charges to
the extent so measured or based, shall be deemed to be included within the term
"Taxes" but only to the extent that the same would be payable if the Building
were the only property of LESSOR.
5.3.2. LESSEE'S SHARE OF TAXES. Commencing as of the Commencement
Date, the LESSEE shall pay to the LESSOR, as additional rent, LESSEE'S
applicable Proportionate Building Share of that portion of the Taxes
attributable to the Building.
5.3.3. RENT ADJUSTMENT-PAYMENT. Beginning with the calendar year in
which the Commencement Date occurs and in subsequent years during the term of
this Lease, LESSEE shall pay to the LESSOR monthly installments of one-twelfth
of the amounts due to LESSOR under Paragraphs 5.3.1 and 5.3.2 on account of
projected Taxes for such year, calculated by the LESSOR on the basis of the best
and most recent data available as set forth in a statement from LESSOR (and,
when available, based upon the real estate tax xxxx covering any such period).
Appropriate adjustments of estimated amounts shall be made between LESSOR and
LESSEE promptly after LESSOR shall have received the tax xxxx covering any such
period.
5.3.4. TAX ADJUSTMENT. If the LESSOR or any other tenant (excluding
LESSEE) in the Building shall construct an addition to the Building, or
construct improvements within the Building of unusual value so as to result in
an increase in Taxes over the Taxes which would have been assessed to that
Building but
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for such construction, there shall not be included in Taxes for purposes of this
Lease the amount of such increase in Taxes unless such additions or improvements
directly benefit the LESSEE. If the LESSEE, or the LESSOR at the direction of
the LESSEE, shall construct improvements within the Leased Premises, or any part
thereof, of unusual value (other than the Tenant Improvement Work or
Supplemental Space Tenant Improvement Work) so as to result in an increase in
Taxes over the Taxes which would have been assessed to the Building, or part,
but for such unusually valuable improvements, the LESSEE shall be responsible
for the payment of the full amount of such increase.
6. UTILITIES AND OTHER SERVICES. (a) Commencing on the date of
execution of this Lease, the LESSEE shall pay for all gas, electricity, water
and sewer and any other utilities separately metered or sub-metered to the
Leased Premises. The LESSEE shall be responsible for all utility company
deposits applicable to the supply of such services to the Leased Premises. To
the extent not separately metered, LESSEE shall be responsible for the payment
of its proportionate share of all gas, electricity, water and sewer use and any
other utilities not separately metered or sub-metered to the Leased Premises all
as reasonably determined by LESSOR. Upon request by the LESSOR, the LESSEE shall
provide the LESSOR with evidence of payment of such charges to the utility
supplier. LESSEE shall defend, indemnify and hold LESSOR harmless from and
against any claim or liability arising from such charges made by any such
utility supplier for which LESSEE is responsible.
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(b) LESSOR agrees to furnish reasonable heat to the stairways,
elevators and other common areas in the Building, or portions thereof, as
necessary for comfortable occupancy and to provide lighting to passageways and
stairways and all parking areas and walkways providing access from the Building
to the parking area in the evening and to furnish ordinary repairs and cleaning
of the common areas and facilities of the Building and removal of snow and ice
reasonably promptly after snowfall and ice accumulation have ended to all
walkways, accessways and approaches to the Building and the parking facility as
is customary in or about similar buildings in Cambridge. LESSOR shall not be
liable to LESSEE for any compensation or reduction of rent by reason of
inconvenience or annoyance or for loss of business arising from the necessity of
LESSOR or its agents entering the Leased Premises, or for LESSEE'S repairing the
Leased Premises if such repair is not performed by LESSOR, or for making repairs
or renovations to any portion of the Building, however the necessity may occur.
In case LESSOR is prevented or delayed from making any such repairs or
alterations, or supplying the utilities or services provided for herein, or
performing any other covenant or duty to be performed on LESSOR's part, by
reason of any cause beyond LESSOR's control, LESSOR shall not be liable to
LESSEE therefor, nor shall LESSEE be entitled to any abatement or reduction of
rent by reason thereof, nor shall the same give rise to a claim in LESSEE's
favor that such failure constitutes actual or constructive, total or partial,
eviction from the Leased Premises, or any portion thereof. LESSOR reserves the
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right to stop any service or utility system, when necessary by reason of
accident or emergency, or until necessary repairs have been completed. LESSOR
agreeing to use reasonable due diligence to restore any such service or utility
service.
7. USE OF LEASED PREMISES. The LESSEE may use the Leased Premises
only for the purpose of general office, laboratory, research and development,
including pharmaceutical research and development and such other accessory uses
incidental thereto to the extent such accessory use is not otherwise violative
of the uses permitted under the Cambridge Zoning Act.
8. COMPLIANCE WITH LAWS. The LESSEE acknowledges that no trade or
occupation shall be conducted in the Leased Premises or use made thereof which
shall be unlawful, improper, noisy or offensive, or be contrary to any law or
any municipal by-law or ordinance in force in the City of Cambridge. LESSEE
shall keep the Leased Premises equipped with all safety appliances and shall
procure and keep in force all licenses and permits required by law or ordinance
of any public authority because of the uses made of the Leased Premises by
LESSEE and shall maintain in good condition on the Leased Premises all safety
and fire protection devices required by the Board of Fire Underwriters, or other
body having similar functions, and of every insurance company and policy by
which LESSOR or LESSEE is insured. If any use of the Leased Premises results in
the cancellation of any insurances carried by LESSOR, or increases the cost
thereof, the LESSEE shall on demand reimburse the LESSOR all extra insurance
premiums incurred as a
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result of such use of the Leased Premises by the LESSEE.
9. RISK OF LOSS OF PERSONAL EFFECTS. LESSEE acknowledges and agrees
that all of the furnishings, equipment, effects and property of LESSEE and of
all persons claiming by, through or under LESSEE which may be on the Leased
Premises or elsewhere in the Building, shall be at the sole risk and hazard of
LESSEE and if the whole or any part thereof shall be destroyed or damaged by
fire, water or otherwise, or by the leakage or bursting of water pipes, steam
pipes, or other pipes, by theft or from any other cause, no part of said loss or
damage is to be charged to or to be borne by LESSOR, unless arising from any
injury, loss, damage or liability caused by LESSOR's gross negligence or willful
misconduct.
9A. INSURANCE - WAIVER OF SUBROGATION. LESSOR agrees to keep the
Building and LESSEE agrees to keep the Leased Premises, and all equipment,
machinery and fixtures therein insured in amounts equal to the actual cash value
of the same, against fire and other perils included in a standard extended
coverage endorsement, and against breakdown of boilers and other machinery and
equipment, and LESSEE agrees to procure and keep in force comprehensive general
liability insurance indemnifying LESSEE against all claims and damages for any
injury to or death of person or damage to property which may be claimed to have
occurred upon or to have been caused by activities or conditions within the
Leased Premises and indemnifying LESSOR to the extent any such claims and
demands are the responsibility or obligation of LESSEE pursuant to
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this Lease or as a matter of law, in amounts not less than $1,000,000 for
property damage, $500,000 for injury or death of one person, and $1,000,000 for
injury or death of more than one person in a single accident. LESSOR agrees to
maintain insurance for the full replacement cost value of the Building.
All insurance required hereunder shall be written by insurance
carriers qualified to do business and in good standing in Massachusetts and
approved by LESSOR, which approval shall not be unreasonably withheld. All
policies of insurance shall name LESSOR and LESSEE as the insured parties. Each
required policy of insurance shall provide that, notwithstanding any act or
omission of LESSEE which might otherwise result in forfeiture of said insurance:
(A) it shall not be cancelled nor its coverage reduced without at least ten (10)
days prior written notice to each insured named therein, and (B) any proceeds
shall be first payable to LESSOR or to the holder of any mortgage encumbering
the Leased Premises as their respective interests may appear.
As of the commencement of the term hereof, and thereafter not less
than fifteen (15) days prior to the expiration dates of the expiring policies,
the original policies to be obtained by LESSEE hereto issued by the respective
insurers or certificates thereof including photocopies of the original policies,
shall be delivered to LESSOR.
Any insurance carried by either party with respect to the Leased
Premises or property therein or occurrences thereon shall include a clause or
endorsement denying to the insurer rights of
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subrogation against the other party to the extent rights have been waived by the
insured prior to occurrence of injury or loss. Each party notwithstanding any
provisions of this Lease to the contrary, hereby waives any rights of recovery
against the other for injury of loss due to hazards covered by such insurance to
the extent of the indemnification received thereunder.
10. MAINTENANCE OF LEASED PREMISES. The LESSEE agrees to maintain
the Leased Premises in the same condition as they are at the commencement of the
term or as they may be put in during the term of this Lease, reasonable wear and
tear, damage by fire, other casualty and eminent domain, and matters for which
the LESSOR is responsible hereunder only excepted, to provide its own interior
janitorial service, to install and maintain its own security system as it
considers appropriate and, whenever necessary, to replace plate glass and other
glass therein with that of the same quality as that damaged or injured. LESSEE
shall be responsible for the costs of maintaining the HVAC System servicing the
Leased Premises, and shall be responsible for all repairs and replacements to
said system. The LESSEE shall not permit the Leased Premises to be overloaded,
damaged, stripped, or defaced, nor suffer any waste. LESSEE shall obtain written
consent of LESSOR before erecting any sign on or about the Leased Premises,
which consent shall not be unreasonably withheld or delayed. LESSEE further
covenants and agrees: to take all reasonably necessary actions to insure that
smoke, fumes, vapors and odors will not permeate any building containing the
Leased Premises and will be removed only through the
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exhaust and ventilating system servicing the Leased Premises; to keep the Leased
Premises free of pests, roaches and vermin; to keep all trash garbage and debris
stored on the Leased Premises (and not in any other portions of the Building) in
adequate covered containers, approved by LESSOR and placed in locations or areas
approved by LESSOR in writing and to arrange for the regular removal thereof
once each day; to provide for the frequent and adequate cleaning of the Leased
Premises and all walls, floors, fixtures and equipment therein consistent with
its use. LESSOR shall maintain in good condition the structural elements and the
roof of the Building, the mechanical equipment and systems in the Building
(other than such equipment and systems which are located within or exclusively
serve the Leased Premises, and other than LESSEE's maintenance obligations
otherwise provided herein), and the common areas of the Building. LESSOR shall
provide for the benefit of LESSEE adequate internal signage identifying LESSEE's
location within the Building. LESSEE shall pay its proportionate share for these
expenses and services as set out in paragraph 5 above.
LESSEE shall be responsible for compliance with the Americans With
Disabilities Act within the Leased Premises. LESSOR shall be responsible for
compliance with the Americans With Disabilities Act in the common areas of the
Building.
11. ALTERATIONS - ADDITIONS. Other than the Tenant Improvement Work
and Supplemental Space Tenant Improvement Work governed by the applicable
provisions of Paragraph 3 of this Lease,
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the LESSEE shall not make structural alterations or additions to the Leased
Premises, but may make non-structural alterations and improvements, provided the
LESSOR consents thereto in advance in writing in each instance, which consent
shall not be unreasonably withheld or delayed provided that LESSOR is furnished
with detailed plans and specifications reasonably approved by LESSOR. All such
allowed alterations or additions shall be at LESSEE's expense and shall be in
quality at least equal to the present construction. LESSEE shall not permit any
mechanics' liens or similar liens, to remain upon the Leased Premises for labor
and materials furnished to LESSEE or claimed to have been furnished to LESSEE in
connection with the work of the any character performed or claimed to have been
performed at the direction of LESSEE, and shall cause any such lien to be
released of record forthwith without cost to LESSOR. Any alterations, additions
or improvements made by the LESSEE, except for moveable partitions and
furnishings, installed at the LESSEE'S cost, shall become the property of the
LESSOR at the termination of the Lease as provided herein.
With respect to all such LESSEE work, LESSEE further agrees as
follows: that such work shall commence only after all required municipal and
other governmental permits and authorizations have been obtained (the LESSOR
agreeing, if requested by LESSEE, to join in any application therefor at the
LESSEE's expense) and all such work shall be done in a good and workmanlike
manner in compliance with building and zoning laws and with all other laws,
ordinances, regulations and requirements of
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all federal, state and municipal agencies, and in accordance with the
requirements and policies issued by any insurer of LESSOR or LESSEE; that all
such work shall be prosecuted with reasonable dispatch to completion; that at
all times when any such work is in progress, LESSEE shall maintain or cause to
be maintained adequate workmen's compensation insurance for those employed in
connection therewith with respect to whom death or injury claims could be
asserted against LESSOR, the LESSEE or the Leased Premises and comprehensive
general liability or builder's risk insurance (for mutual benefit of LESSEE and
LESSOR) in coverages reasonably approved by LESSOR; and that all such work of
LESSEE shall be coordinated with any work being performed by LESSOR and other
tenants of the building in which the work is taking place in such manner as to
maintain harmonious labor relations and not to interfere with the operation of
the Building or the construction work of others.
12. ASSIGNMENT - SUBLETTING. The LESSEE shall not assign or sublet
the whole or any part of the Leased Premises without the LESSOR's prior written
consent, which consent shall not be unreasonably withheld or delayed. LESSEE
shall be entitled to assign this Lease to any entity controlled by, or under
common control with LESSEE, and to any entity acquiring substantially all of the
assets of LESSEE, in all such case without the consent of LESSOR.
Notwithstanding such consent or permitted assignment, LESSEE shall remain liable
to LESSOR for the payment of all rent and for the full performance of the
covenants and conditions of
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this Lease (which following assignment shall be joint and several with
assignee).
12A. QUIET ENJOYMENT, COVENANT OF TITLE. The LESSEE, on paying the
rent and other charges hereunder, as and when the same shall become due and
payable and observing and performing the covenants, conditions and agreements
contained in this Lease on the part of the LESSEE to be observed and performed,
all as herein provided, shall and may lawfully, peaceably and quietly have, hold
and enjoy the Leased Premises during the term, subject to all of the terms and
provisions hereof, without hindrance, ejection or disturbance by the LESSOR or
by any person or persons claiming by, through or under the LESSOR or by anyone
claiming paramount title.
13. SUBORDINATION. The Lease and LESSEE's interest hereunder,
subject to the provisions of this paragraph 13, shall be subordinate to the lien
of any present or future mortgage or mortgages upon the Leased Premises or any
property of which the Leased Premises are a part, irrespective of the time of
execution or the time of recording of any such mortgage or mortgages, and to
each advance made or to be made thereunder and to all renewals, modifications,
consolidations, and extensions thereof, and all substitutions therefor. Any
subordination of this Lease pursuant to the provisions of this Paragraph 13 is
made and granted upon the condition that, in the event of any entry by the
holder of any such mortgage to foreclose, a default under any such mortgage, a
foreclosure of any such mortgage of LESSOR'S interest under this Lease or in the
Leased Premises through foreclosure or otherwise,
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the LESSEE shall (provided the LESSEE is not then in default beyond any
applicable cure period) peaceably hold and enjoy the Leased Premises as a lessee
of such holder, during the term upon the terms, covenants and conditions as set
forth in this Lease without any hindrance or interruption from such holder. In
the event of such entry, foreclosure, acquisition or other action by such
holder, LESSEE shall recognize the holder of the mortgage with respect to which
such action is taken as the LESSOR under this Lease. As used in this Paragraph
13, the word "holder" includes any person claiming through or under any such
mortgage, including any purchaser at a foreclosure sale, and the word "LESSEE"
shall include LESSEE'S successors and assigns. The word "mortgage" as used in
this Paragraph shall mean mortgages, deeds of trust, and other similar
instruments held by any institutional lender and all modifications, extensions,
renewals and replacements thereof. This Paragraph 13 is self-operative, and no
further instrument of subordination shall be required.
Notwithstanding the self-operative effect of this Paragraph 13, the
LESSEE agrees to execute such further documents in recordable form as the LESSOR
or any lender may reasonably require, consistent with the terms of this
Paragraph 13 and 21. Should the LESSEE fail to execute and deliver to the LESSOR
any such document within twenty (20) days of a written notice requesting the
LESSEE to execute and deliver such document, (which request in order to be
effective must contain copies of all documents necessary for LESSEE to review in
order to execute such
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subordination document, including without limitation, copies of any security and
financing documents, appropriately redacted, which are the subject of such
subordination document), LESSEE shall pay to LESSOR (as liquidated damages and
not as a penalty) the sum of $500.00 per day for each day after such twentieth
(20th) day during which such failure to deliver such instrument continues.
14. LESSOR'S ACCESS. The LESSOR or agents of the LESSOR may, at
reasonable times and upon reasonable prior notice to the LESSEE, enter to view
the Leased Premises or any part thereof and may remove placards and signs not
approved and affixed as herein provided, and make repairs and alterations which
LESSOR may deem necessary or desirable and, at LESSEE's expense, to remove any
alterations, additions, signs, or other improvements made by LESSEE, and not
consented to by LESSOR; to show the Leased Premises to others with reasonable
prior notice, in a manner so as not to unreasonably interfere with the normal
conduct of the LESSEE'S business, at any time within the four (4) month period
prior to the expiration of the term.
15. INDEMNIFICATION AND LIABILITY. The LESSEE shall defend, save
harmless and indemnify LESSOR from any claims of liability for injury, loss,
accident or damage to any person or property while on the Leased Premises, if
not due to the negligence or willful misconduct of LESSOR, or LESSOR's employees
or agents, and to any person or property anywhere occasioned by any omission,
fault, negligence or other misconduct of LESSEE and persons for whose conduct
LESSEE is legally responsible.
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16. HOLDING OVER. LESSEE agrees to pay to LESSOR one and one-half
times the total of the Base rent set forth in Paragraph 4 in effect for the
period immediately prior to LESSEE's holding over and one and one-half times the
additional rent provided for under this Lease then applicable for each month or
portion thereof LESSEE shall retain possession of the Leased Premises or any
part thereof after the termination of this Lease, whether by lapse of time or
otherwise, and also to pay all damages sustained by LESSOR on account thereof;
the provisions of this paragraph shall not operate as a waiver by LESSOR of any
right of re-entry provided in this Lease.
16A. FURTHER LESSEE COVENANTS. LESSEE further covenants and agrees
during the term and such further time as LESSEE holds any part of the Leased
Premises:
(a) to pay when due all rent and other sums herein specified,
without offset, deduction or counterclaim except as otherwise specifically
provided in this Lease;
(b) not to obstruct in any manner any portion of any building not
hereby leased or the sidewalks or approaches to such building or any inside
windows or doors;
(c) that neither the original LESSOR nor any successor LESSOR who or
which is a trustee or a partnership, nor any beneficiary of the original LESSOR
or any successor LESSOR nor any partner, general or limited, of such partnership
shall be personally liable under any term, condition, covenant, obligation or
agreement expressed herein or implied hereunder or for any claim
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or damage or cause at law or in equity arising out of the occupancy of the
Leased Premises or the use or maintenance of the Building and LESSEE
specifically agrees to look solely to the LESSOR's interest in the Building for
the recovery of any judgment against LESSOR; and
(d) if any payment of rent or other sums due hereunder is not paid
when due, LESSEE shall pay to LESSOR a late charge equal to five (5%) percent of
the unpaid amount per month, or part thereof, that such amount remains unpaid.
17. FIRE, CASUALTY.
17.1 DEFINITION OF "SUBSTANTIAL DAMAGE" AND "PARTIAL DAMAGE". The
term "substantial damage", as used herein, shall refer to damage which is of
such a character that the same cannot, in ordinary course, be expected to be
repaired within ninety (90) calendar days from the time that such repair work
would commence. Any damage which is not "substantial damage" is "partial
damage". In the event of substantial damage to the Building, the LESSOR shall
notify the LESSEE as soon as is practicable and in no event later than thirty
(30) days after such damage of LESSOR'S estimated time for repair of such
damage.
17.2. PARTIAL DAMAGE TO THE BUILDING. If during the Lease Term there
shall be partial damage to the Building by fire or other casualty and if such
damage shall materially interfere with the LESSEE's use of the Leased Premises
as contemplated by this Lease, the LESSOR shall, to the extent insurance
proceeds are available to LESSOR, promptly proceed to restore the Building to
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substantially the condition in which it was immediately prior to the occurrence
of such damage. Notwithstanding the foregoing, if there shall be partial damage
to the Building, and if such damage shall materially interfere with LESSEE's use
of the Leased Premises as contemplated by this Lease occurring during the last
twelve (12) months of the Lease Term of such a character that the same cannot,
in ordinary course, be expected to be repaired within thirty (30) days from the
time such repair work would begin, the LESSOR may, within ten (10) days of the
date of such damage, elect to terminate this Lease. If such election is not
made, the LESSOR shall promptly proceed with such restoration.
17.3. SUBSTANTIAL DAMAGE TO THE BUILDING. If during the Lease Term
there shall be substantial damage to the Building by fire or other casualty and
if such damage shall materially interfere with the LESSEE'S use of the Leased
Premises as contemplated by this Lease, the LESSOR shall, to the extent
insurance proceeds are available to LESSOR, promptly restore the Building to an
architectural unit that is not less suitable than that which existed prior to
such fire or casualty, unless the LESSOR or the LESSEE, within thirty (30) days
after the occurrence of such damage, shall give notice to the other of its
election to terminate this Lease. If at any time during such thirty (30) day
period the LESSOR notifies the LESSEE of its intention to restore the Building,
the LESSEE must then give notice to the Lessor, within ten (10) days of its
receipt of the LESSOR'S notice of intention to restore the Building, as to
whether the LESSEE will
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elect to terminate the Lease. Should the LESSEE fail to elect to terminate the
Lease within such ten (10) day period, the LESSEE'S right to terminate under
this Paragraph 17.3 shall expire. If the LESSOR proceeds with the restoration of
the Building and if such damage shall not have been repaired to the extent
necessary for the LESSEE to resume its normal business operations at the Leased
Premises by the end of the 180th day following the date of such fire or
casualty, or if the Lessor shall fail diligently to cause such repair and
restoration work to be performed then the LESSEE may, at any time thereafter
while the damage remains unrepaired, terminate this Lease upon notice to the
LESSOR. If the LESSOR or the LESSEE shall give such notice of termination, then
this Lease shall terminate as of the date of such notice with the same force and
effect as if such date were the date originally established as the expiration
date hereof.
17.4. ABATEMENT OF RENT. If during the Lease Term the Building shall
be damaged by fire or casualty and if such damage shall materially interfere
with the LESSEE'S use of the Leased Premises as contemplated by this Lease, a
just proportionate amount of the rent and other charges payable by the LESSEE
hereunder shall xxxxx proportionately for the period in which, by reason of such
damage, there is such interference with the LESSEE'S use of the Leased Premises.
17A. EMINENT DOMAIN. If the Building is totally taken by
condemnation or right of eminent domain, this Lease shall terminate as of the
date of such taking. If the Building, or such
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portion thereof as to render the balance (if reconstructed to the maximum extent
practicable in the circumstances) physically unsuitable in the LESSEE'S
reasonable judgment for the LESSEE'S purposes, shall be taken by condemnation or
right of eminent domain (including a temporary taking in excess of 180 days),
the LESSEE or the LESSOR shall have the right to terminate this Lease by notice
to the other of its desire to do so, provided that such notice is given not
later than ten (10) days after the LESSEE has been deprived of possession.
Should any part of the Building be so taken or condemned or receive
such damage and should this Lease not be terminated in accordance with the
foregoing provisions, the LESSOR shall, to the extent condemnation proceeds are
available to LESSOR, promptly restore the Leased Premises to an architectural
unit that is suitable to the uses of the LESSEE permitted hereunder.
In the event of a taking described in this Paragraph 17A, the rent
and other charges payable hereunder, or a fair and just proportion thereof
according to the nature and extent of the loss of use shall be suspended or
abated.
The LESSOR reserves, and the LESSEE grants to the LESSOR, all rights
which the LESSEE may have for damages or injury to the Leased Premises for any
taking by eminent domain, except for damage to the LESSEE'S trade fixtures,
personal property or equipment, if any, the LESSEE'S right to relocation
expenses, if any, and the LESSEE'S right for business interruption, if any.
18. DEFAULT AND BANKRUPTCY. In the event that:
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(a) The LESSEE, shall default in the payment of any installment of
rent or other sum herein specified continuing for five (5) days after written
notice from LESSOR to LESSEE; or
(b) The LESSEE shall default in the observance or performance of the
LESSEE's covenants, agreements, or obligations hereunder (except as provided in
Paragraph 18 (a) above) and the LESSEE shall not cure such default within thirty
(30) days after written notice thereof or if such default cannot be cured within
thirty (30) days, then if LESSEE shall not commence to cure the same within
thirty (30) days and diligently pursue the curing of the same; or
(c) LESSEE makes any assignment for the benefit of creditors,
commits any act of bankruptcy or files a petition under any bankruptcy or
insolvency law; or if such a petition is filed against LESSEE and is not
dismissed within ninety (90) days; or if a receiver or similar officer becomes
entitled to LESSEE's leasehold hereunder and it is not returned to LESSEE within
ninety (90) days, or if such leasehold is taken on execution or other process of
law in any action against LESSEE;
then in any such case the LESSOR shall have the right thereafter, while
such default continues, to re-enter and take complete possession of the Leased
Premises, to declare the term of this Lease ended, and remove the LESSEE'S
effects at LESSEE's sole cost and expense, without prejudice to any remedies
which might be otherwise used for arrears of rent or other default. The LESSEE
shall indemnify the LESSOR against all loss and reasonable payment
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of rent and other payments which the LESSOR may incur by reason of such
termination during the residue of the term. In the event of default, LESSOR
shall use its reasonable efforts to re-let the Leased Premises so as to mitigate
any damages to the LESSEE hereunder. If LESSOR re-lets the Leased Premises,
LESSEE may offset its payable rent by the amount of rent received by LESSOR.
If the LESSEE shall default, after written notice thereof as
provided herein, in the observance or performance of any conditions or covenants
on its part to be observed or performed under or by virtue of any of the
provisions of this Lease and after the expiration of any period within which the
LESSEE is entitled to cure such default as is provided above in this Paragraph
18, the LESSOR, without being under any obligation to do so and without thereby
waiving such default, may remedy such default for the account and at the expense
of the LESSEE. If the LESSOR makes any expenditures or incurs any obligations
for the payment of money in connection therewith, including, but not limited to,
reasonable attorney's fees (except for unsuccessful suits against the LESSEE) in
instituting, prosecuting or defending any action or proceeding, such sums paid
or obligations incurred, with interest at the rate of twelve (12%) per annum and
costs, shall be paid to the LESSOR by the LESSEE as additional rent.
Nothing contained in this Lease shall limit or prejudice the right
of LESSOR to claim and obtain in proceedings for bankruptcy, insolvency or like
proceedings by reason of the termination of this Lease, an amount equal to the
maximum allowed
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by any statute or rule of law in effect at the time when, and governing the
proceedings in which the damages are to be claimed or proved, whether or not the
amount be greater, equal to, or less than the amount of the loss or damages
referred to above.
18A. DEFAULT OF LANDLORD AND MORTGAGEE RIGHTS. LESSOR shall in no
event be in default in the performance of any of LESSOR's obligations hereunder
unless and until LESSOR shall have failed to perform such obligations within
thirty (30) days, or such additional time as is reasonably required to correct
any such default, after receipt of written notice by LESSEE to LESSOR properly
specifying wherein LESSOR has failed to perform any such obligation. LESSEE
agrees to give any mortgagee, by registered mail, a copy of any notice of
default served upon the LESSOR, provided that prior to such notice the LESSEE
has been notified in writing of the identity and address (by way of Notice of
Assignment of Rents and Leases or otherwise) of the address of such mortgagee.
The LESSEE further agrees that if the LESSOR shall have failed to cure such
default within the time provided for in this Lease, then the mortgagee shall
have an additional sixty (60) days within which to cure such default or if such
default cannot be cured within that time, then such additional time as may be
necessary if within sixty (60) days the mortgagee has commenced and is
diligently pursuing the remedies necessary to cure such default (including but
not limited to commencement of foreclosure proceedings, if necessary to effect
such cure) in which event this Lease shall not be terminated while such remedies
are being so diligently pursued.
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18B. BANKRUPTCY OR INSOLVENCY.
(a) LESSEE'S INTEREST NOT TRANSFERABLE. Neither LESSEE's interest in this
Lease nor any estate hereby created in LESSEE nor any interest herein or therein
shall pass to any trustee, except as may specifically be provided pursuant to
the Bankruptcy Code (11 USC Sec. 101 et seq.) or to any receiver or assignee for
the benefit of creditors or otherwise by operation of law.
(b) TERMINATION OF LEASE. Notwithstanding anything to the contrary
contained in this Lease, and to the extent enforceable under the Bankruptcy
Code, in the event the interest or estate created in LESSEE hereby shall be
taken in execution or by other process of law or if LESSEE or LESSEE's
executors, administrators or assigns, if any, shall be adjudicated insolvent or
bankrupt pursuant to the provisions of any state law or an order for the relief
of such entity shall be entered pursuant to the Bankruptcy Code, or if a
receiver or trustee of the property of LESSEE shall be appointed by reason of
the insolvency or inability of LESSEE to pay its debts or if any assignment
shall be made of the property of LESSEE or LESSEE's guarantor, if any, for the
benefit of creditors, then and in any such events this Lease and all rights of
LESSEE hereunder shall automatically cease and terminate with the same force and
effect as though the date of such event were the date originally established
herein and fixed for the expiration of the term and LESSEE shall vacate and
surrender the Leased Premises but shall remain liable as herein provided.
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(c) LESSEE'S OBLIGATION TO AVOID CREDITORS' PROCEEDINGS. LESSEE shall not
cause or give cause for the appointment of a trustee or receiver of the assets
of LESSEE and shall not make any assignment for the benefit of creditors or
become or be adjudicated insolvent. The allowance of any petition under any
insolvency law, except under the Bankruptcy Code or the appointment of a trustee
or receiver of Lessee or Lessee's guarantor, if any, or of the assets of either
of them, shall be conclusive evidence that LESSEE caused or gave cause therefor,
unless such allowance of the petition or the appointment of a trustee or
receiver is vacated within ninety (90) days after such allowance or appointment.
Any act described in this paragraph shall be deemed a material breach of
LESSEE's obligations hereunder and this Lease shall thereupon automatically
terminate. LESSEE does, in addition, reserve any and all other remedies provided
in this Lease or in law.
(d) RIGHTS AND OBLIGATIONS UNDER THE BANKRUPTCY CODE. Upon the filing of a
petition by or against LESSEE under the Bankruptcy Code, LESSEE, as debtor and
as debtor-in-possession, and any trustee who may be appointed agree as follows:
(i) to perform each and every obligation of LESSEE under this Lease including,
but not limited to, the manner of operation of this Lease, until such time as
this Lease is either rejected or assumed by order of the United States
Bankruptcy Court; (ii) to pay monthly in advance, on the first day of each
month, as reasonable compensation for use and occupancy of the Leased Premises,
an amount equal to all fixed Annual Base Rent, Additional Rent and other charges
otherwise due
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pursuant to this Lease; (iii) to reject or assume this Lease within sixty (60)
days of the appointment of such trustee under Chapter 7 of the Bankruptcy Code
or within one hundred twenty (120) days (or such shorter term as LESSOR, in its
sole discretion, may deem reasonable, so long as notice of such period is given)
of the filing of a petition under any other chapter; (iv) to give LESSOR at
least forty five (45) days' prior written notice of any proceeding relating to
any assumption of this Lease; (v) to give at least thirty (30) days' prior
written notice of any abandonment of the Leased Premises, with any such
abandonment to be deemed a rejection of this Lease and an abandonment of any
property not previously removed from the Leased Premises; (vi) to do all other
things of benefit to LESSOR otherwise required under the Bankruptcy Code; (vii)
to be deemed to have rejected this Lease in the event of the failure to comply
with any of the above; and (viii) to have consent to the entry of an order by an
appropriate United States Bankruptcy Court providing all of the above, waiving
notice and hearing of the entry of same.
No default of this Lease by LESSEE, either prior to or subsequent to the
filing of such a petition, shall be deemed to have been waived unless expressly
done so in writing by LESSOR.
Included within and in addition to any other conditions or obligations
imposed upon LESSEE or its successor in the event of assumption and/or
assignment are the following: (i) the cure of any monetary defaults and the
reimbursement of pecuniary loss immediately upon entry of a court order
providing for assumption
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and/or assignment; (ii) the deposit of an additional sum equal to three (3)
months' Rent to be held as a security deposit; (iii) the use of the Leased
Premises as set forth in the reference date section of this Lease and the
quality, quantity and/or lines of merchandise of any goods or services required
to be offered for sale are unchanged; (iv) the payment of any sums which may
then be due or which may thereafter become due under the provisions of this
Lease; (v) the debtor, debtor-in-possession, trustee or assignee of such entity
demonstrates in writing that it has sufficient background, including, but not
limited to, substantial commercial experience in buildings of comparable size
and financial ability to operate a commercial establishment out of the Leased
Premises in the manner contemplated in this Lease, and meets all other
reasonable criteria of LESSOR as did LESSEE upon execution of this Lease; (vi)
the prior written consent of any mortgagee to which this Lease has been assigned
as collateral security; and (vii) the Leased Premises at all times remains a
single store (if retail) and no physical changes of any kind may be made to the
Leased Premises unless in compliance with the applicable provisions of this
Lease.
Any person or entity to which this Lease is assigned pursuant to the
provisions of the Bankruptcy Code shall be deemed without further act or deed to
have assumed all of the obligations arising under this Lease on and after the
date of such assignment. Any such assignee shall, upon demand, execute and
deliver to LESSOR an instrument confirming such assumption in accordance with
the terms of Paragraph 21 hereof.
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52
19. RULES AND REGULATIONS. The LESSOR shall have the right to
institute and to change from time to time, rules and regulations for the use of
the Building by commercial office lessees, and by commercial retail lessees,
which shall be reasonable in all instances and shall be uniformly applicable to
all commercial lessees in the Building and the LESSEE agrees to abide thereby.
19A. PARAGRAPH HEADINGS. The paragraph headings throughout this
instrument are for convenience and reference only, and the words contained
therein shall in no way be held to explain, modify, amplify or aid in the
interpretation, construction or meaning of the provisions of this Lease.
20. BROKER. The LESSOR and LESSEE each represent and warrant to the
other that each has had no dealings with any Brokers concerning this Lease,
except LYNCH, MURPHY, XXXXX & PARTNERS and FALLON, XXXXX & X'XXXXXX and each
party agrees to indemnify and hold the other harmless for any damages occasioned
to the other by reason of a breach of this representation and warranty.
LESSOR shall be responsible for a leasing commission to each of such
brokers listed above, and for a commission, if any, due such listed brokers, if
LESSEE extends the term of this Lease as provided herein.
21. ESTOPPEL CERTIFICATE. LESSOR and LESSEE each agree at any time
from time to time, upon not less than ten (10) days prior notice to execute,
acknowledge and deliver to the other, a statement in writing, certifying to the
extent possible that this
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Lease is unmodified and in full force and effect or if there have been
modifications. That the same is in full force and effect as modified and stating
such modifications and otherwise certifying if there exists any default under
the terms of this Lease and such other information as may be reasonably
requested concerning this Lease by the other party or any other third party with
a bona fide interest. Should either party fail to deliver to the other party any
such statement within ten (10) days of receipt of a written notice requesting
any such statement, the party failing to deliver any such statement shall pay to
the requesting party, the sum of $500.00 per day (as liquidated damages and not
as a penalty) for each day after such tenth (10th) day during which such failure
continues.
22. NOTICE. Any notice from the LESSOR to the LESSEE relating to the
Leased Premises or to the occupancy thereof shall be deemed duly served, if in
writing and mailed by registered or certified mail, return receipt requested,
postage prepaid, addressed to the LESSEE,
LeukoSite, Inc.
000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
with a copy to:
Xxxxxxx, Xxxx & Xxxxx
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx
Any notice from the LESSEE to the LESSOR relating to the Leased Premises or to
the occupancy thereof, shall be deemed duly served, if in writing and mailed to
the LESSOR by registered or certified
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mail, return receipt requested, postage prepaid, addressed to the LESSOR at such
address as the LESSOR may from time to time advise in writing, the following now
being designated:
Athenaeum Realty Nominee Trust
The Athenaeum Group
000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
23. SURRENDER. Subject to the provisions of the Landlord's Waiver
and Consent, which LESSOR agrees to execute for the benefit of LESSEE's
equipment lessor, substantially in the form attached hereto as Exhibit __ , the
LESSEE shall at the expiration or other termination of this Lease yield up and
peaceably surrender all portions of the Leased Premises to LESSOR and shall
remove all LESSEE'S goods and effects therefrom (including, without hereby
limiting the generality of the foregoing, all signs and lettering affixed or
painted by the LESSEE, either inside or outside the Leased Premises). LESSEE
shall deliver to the LESSOR the Leased Premises and all keys, locks thereto, and
all fixtures, alterations and additions made to or upon the Leased Premises,
except for moveable partitions and furnishings installed at the LESSEE'S
expense, in the same condition as they were at the commencement of the term, or
as they were put in during the term hereof, reasonable wear and tear and damage
by fire, other casualty or eminent domain and matters for which the LESSOR is
responsible hereunder only excepted. All moveable partitions and furnishings,
and so long as LESSEE has expended $1.7 million dollars in Tenant Improvements,
those items specified on Exhibit __ attached to this Lease, installed in the
Leased Premises at the LESSEE's expense prior to
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or during the term of the Lease may be removed by the LESSEE at the expiration
or other termination of the Lease. The LESSEE shall, at its expense, promptly
repair any and all damage to the Leased Premises resulting from such removal. In
the event of the LESSEE'S failure to remove any of the LESSEE'S property from
the Leased Premises, LESSOR is hereby authorized, upon fifteen (15) days written
notice to the LESSEE without liability to LESSEE for loss or damage thereto, and
at the sole risk of LESSEE, to remove and store any of the property at LESSEE's
sole cost and expense. It is expressly acknowledged and understood by the
parties that the Tenant Improvements and built in equipment, such as fume hoods,
installed at the commencement of this Lease to the first and second floor of the
Leased Premises and the Supplemental Space Tenant Improvement Work, (as
distinguished from moveable partitions, personal property, or the capital
equipment listed on Exhibit __), shall become the property of the LESSOR at the
expiration or sooner termination of this Lease. Moreover, it is expressly
agreed, in the event of an uncured default, that the items on Exhibit __, may
not be removed by LESSEE, but shall become the property of the LESSOR.
24. OPTION TO EXTEND. If the LESSEE is not then in default, LESSOR
does hereby grant to LESSEE the option to extend this Lease for two (2)
additional five (5) year term, commencing on the expiration of the initial term
and the expiration of the first extended term, as the case may be, upon the same
terms and conditions as herein contained except the annual base rent set
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forth in paragraph 4 hereof shall be at the rate set forth below.
The annual rent for the first-extended term shall be the sum of the
following:
(i) $317,484.00 per year (calculated as 24,268 square feet of space
on the first and second floors at $13.00 per square foot plus 200
square feet of space in the basement at $10.00 per square foot);
plus
(ii) the annual fair value of the parking spaces made available to
LESSEE, all to be reasonably determined by LESSOR ("Outdoor
Parking"); it being expressly understood and agreed by the parties
that the first five (5) spaces taken by LESSEE shall be at no cost
or charge to LESSEE.
The annual rent for the second extended term (the "Second Extended Term")
shall be adjusted at the commencement of the Second Extended Term and shall be
ninety (90%) percent of the then fair market rental (the "Market Rent") of the
Leased Premises plus the annual fair value of LESSEE's Outdoor Parking spaces as
reasonably determined by LESSOR; it being expressly understood and agreed by the
parties that the first five (5) spaces taken by LESSEE shall be at no cost or
charge to LESSEE. Market Rent shall be determined as set forth on Exhibit E to
this Lease.
Notwithstanding the foregoing, in no event shall the annual base rent for
the second extended term be less than the annual base rent for the last year of
the first extended term.
The option shall be exercised by written notice from LESSEE and received
by LESSOR at least four (4) months prior to the
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expiration of the initial term or the first extended term, as the case may be.
25. OPTION TO EXPAND. Provided LESSEE is not then in default of the
terms of this Lease, LESSEE shall have the option to lease additional space on
the third floor in the Building, (15,383 square feet now occupied by Inscribe or
24,150 currently unoccupied - (hereinafter Option Space) on the terms and
conditions as set forth in this Lease except that the Base Rent shall be the
fair Market Rent for the Option Space. In the event LESSEE properly exercises
its option to lease the Option Space, the Option Space shall automatically be
included in and become a part of the Leased Premises from and after the date on
which the Option Space is included within the Leased Premises; all of the terms,
provisions, conditions and covenants contained in this lease shall apply
thereto, except with respect to Base Rent for the Option Space and further, all
of the terms defined in this Lease shall then be automatically adjusted
accordingly (including appropriate CAO calculations), so that, for example, the
term "Leased Premises" whenever used herein shall then and thereafter apply to
such Option space.
LESSEE acknowledges that some portion of the Option Space is currently
under written lease agreement and that the existing tenant has some rights with
respect to such Option Space (which rights are summarized on Exhibit F attached
hereto) and that LESSEE's rights hereunder are subject to the rights of tenants
currently occupying a portion of the Option Space.
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58
If the current tenant does not exercise its rights with respect to a
portion of the Option Space, LESSOR agrees that prior to accepting any proposal
for lease of the now occupied portion of the Option Space or the remainder of
the Option Space, LESSOR shall give LESSEE written notice to LESSEE of the
proposed terms for rental of the then available Option Space. LESSEE shall have
fourteen (14) business days following receipt of LESSOR's notice, to elect by
written notice received by LESSOR within said fourteen (14) business days of the
receipt of such notice to add such space to the Leased Premises. In the event
LESSEE fails to properly exercise its option to lease the Option Space, such
option shall thereafter terminate and LESSOR shall thereafter be free to lease
the Option Space to other parties.
26. HAZARDOUS WASTE IDENTITY. LESSEE hereby agrees to indemnify and
hold LESSOR harmless from and against any and all demands, claims, actions,
losses, damages and liabilities (the "Claims"), which may be imposed on,
asserted against or incurred by LESSOR arising from or out of LESSEE's use and
occupancy of the demised premises, including, without limitation, any and all
liabilities pertaining to any present or future use (within the term of this
Lease) in violation of any Federal, state, local or other laws, relating to
pollution or protection of the environment, including, without limitation, laws
relating to emissions, discharges, releases or threatened releases of
pollutants, contaminants, chemicals, or industrial, toxic or hazardous
substances or wastes into the environment (including, without
-45-
59
limitation, ambient air, surface, water, ground water, land surface or
subsurface strata) or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
pollutants, contaminants, chemicals, or industrial, toxic or hazardous
substances or wastes.
If any action or proceeding is brought against LESSOR by reason of any
claim, LESSEE, upon notice from LESSOR, shall defend such action or proceeding
by counsel reasonably satisfactory to LESSOR, and LESSEE shall pay all
reasonable expenses incurred in connection with defending against such action or
proceeding.
27. MISCELLANEOUS.
(a) The LESSOR reserves the right to assign or transfer any and all of its
right, title and interest under the Lease, including but not limited to the
benefit of all covenants of the LESSEE hereunder. Notwithstanding anything
contained in this Lease to the contrary. It is specifically understood and
agreed that the obligations imposed upon The LESSOR hereunder shall be binding
upon the LESSOR and LESSOR's successors in interest only with respect to
breaches occurring during LESSOR's and LESSOR's successors' ownership of
LESSOR's interest hereunder and LESSOR and its said successors in interest shall
not be liable for acts and occurrences arising from and after the transfer of
their interest as LESSOR hereunder.
(b) Notwithstanding any other provision of this Lease to the
contrary, LESSOR shall have the right to sublet the Supplemental Space for a
short term rental to expire prior to the
-46-
60
commencement of the fourth year of the initial term. To the extent as part of
such short term rental, LESSOR receives rental income from the short term
lessee, said rental income shall reduce LESSEE's required CAO reimbursements for
the Supplemental Space which would have otherwise been due as of the
commencement of the third year of the initial term. During any time when LESSOR
is unable to lease the Supplemental Space on a short term basis, LESSEE shall
have the right to use the Supplemental Space for storage; provided that LESSEE
pay any utility or operating costs associated with the use of the Supplemental
Space for storage.
(c) This Lease shall be governed by and construed in accordance with
the laws of the Commonwealth of Massachusetts, as the same may from time to time
exist.
(d) This Lease contains all of the agreements of the parties with
respect to the subject matter thereof and supersedes all prior oral and written
negotiations and dealings between them with respect to such subject matter. The
agreement of the parties contained in this Lease shall not be modified or
amended unless such modification or amendment is in writing and signed by the
parties.
(e) The LESSEE acknowledges that LESSEE has not been influenced to
enter into this Lease nor has it relied upon any warranties or representations
not set forth or incorporated in this Lease or previously made in writing.
The undersigned Trustees of Athenaeum Realty Nominee Trust do hereby
certify that they each were authorized by all of
-47-
61
the beneficiaries of said Trust to execute and acknowledge the within Lease
on behalf of the Trust.
IN WITNESS WHEREOF, the LESSOR and LESSEE have hereunto set their hands
and common seals this eighth day of June, 1994.
ATHENAEUM REALTY NOMINEE TRUST
/s/ Xxxxxx X. Xxxxx /s/ Xxxxx X. Xxxxx
---------------------------- ----------------------------
XXXXXX X. XXXXX, Trustee WITNESS
/s/ X. Xxxxxx Narjarian /s/ Xxxxx X. Xxxxx
---------------------------- ----------------------------
X. XXXXXX NARJARIAN, Trustee WITNESS
LEUKOSITE, INC.
BY: /s/ X.X. Xxxxxxxxx
---------------------------- ----------------------------
PRESIDENT, duly authorized WITNESS
BY: /s/ Xxxxxx X. Xxxxxxxx
---------------------------- ----------------------------
duly authorized WITNESS
CONTROLLER
-48-
62
[LETTERHEAD OF AETNA]
EXHIBIT G
July 1, 1994
Xxxxx Xxxxx
The Athenaem Group
000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
RE: AETNA LOAN NO. 197502
000 XXXXX XXXXXX
LEUKOSITE PROPOSED LEASE
Dear Xxxxx:
As discussed, the attached Landlord and Mortgagee Waiver and Consent is
acceptable to Aetna, with the security deposit
Do not hesitate to contact me if you have any questions.
Sincerely,
/s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
Investment Officer
cc: X. Xxxxxxx
X. Xxxxxxxxxxx
63
Landlord and Mortgagee Waiver and Consent
THIS Waiver and Consent, dated as of the ________ day of _____, 19 __ made
by _____________ (the "Landlord"), and _________________ (the "Mortgagee");
WITNESSETH:
WHEREAS, Landlord and Mortgagee have an interest in the real property
commonly known as __________________________ and legally described in Schedule A
attached hereto, (the "Real Property"); and
WHEREAS, Comdisco, Inc. (the "Lessor") has leased those certain items of
equipment of the general type (the ("Equipment"), described in Schedule B
attached hereto, on the Real Property and pursuant to the Master Lease Agreement
dated as of ________ and associated Equipment Schedule No. VL-1 and associated
summary schedules (collectively the "Lease") by and between Lessor and
_____________ (the "Lessee"); and
WHEREAS, Lessor must provide this Waiver and Consent to its secured party
to assign and finance rentals of the Lease;
NOW, THEREFORE, for good and sufficient consideration, receipt of which is
hereby acknowledged, the Landlord and Mortgagee hereby agrees as follows:
1. The Landlord and Mortgagee consent to the installation of the
Equipment on the Real Property and shall permit Lessor or its
designee to enter upon the Real Property for the purposes of
exercising its rights it may have under the terms of the Lease, or
otherwise including, the right to remove Equipment pursuant to the
terms thereof.
2. The Equipment shall remain Personal Property and shall not be
considered part of the Real Property or a fixture regardless of
whether or by what means it is or may become attached or affixed to
the Real Property.
3. The Landlord and Mortgagee waives and relinquishes unto the Lessor
or its assignee all claims and demands of every kind or nature
whatsoever that the Landlord or Mortgagee may now have or may
hereafter acquire against the Equipment, under present or future
provisions of law or equity.
4. This Waiver and Consent shall be binding upon the Landlord and
Mortgagee and their respective heirs, personal representatives,
successors and assigns and shall enure to the benefit of Lessor, its
successors and assigns.
In addition to the Equipment to be installed upon the Real Property Lessor
shall be financing certain tenant improvements that Lessee shall be making to
the Real Property. In the event of a default by Lessee under the terms and
conditions of the lease of the Real
64
Property, Landlord shall give Lessor and Landlord's mortgagee written notice of
such default. Within sixty days of receipt of such notice Lessor shall have the
option to assume the lease of the Real Property and pay from the date of
Landlord's written notice to Lessor, the same rent owed by Lessee under the same
terms and conditions as agreed to by Lessee under the lease of the Real
Property. Lessor's responsibility for payment of rent for the period before it
assumes the Real Property lease shall not exceed a period of the prior sixty
(60) days.
IN WITNESS WHEREOF, by execution hereof the undersigned have accepted and
agreed to this Waiver and Consent as of the date first written above.
_____________________________, the Landlord
By:_____________________________________
Title:__________________________________
_____________________________, the Mortgagee
By:_____________________________________
Title:__________________________________
65
Schedule A to
Landlord and Mortgagee Waiver and Consent
dated as of ____________________
Legal Description of Real Property
Initialled:
______________Landlord
______________Mortgagee
66
Schedule B to
Landlord and Mortgagee Waiver and Consent
dated as of____________________
Equipment on Real Property
Item No. Machine Type Model/Feature Serial No. Description
-------- ------------ ------------- ---------- -----------
Initialled:
______________Landlord
______________Mortgagee
67
[LOGO]
[LETTERHEAD OF THE ATHENAEUM GROUP]
June 30, 1994 VIA FAX 000-0000
AND U.S. MAIL
Xx. Xxxxxx Xxxxxxxx
Controller
LeukoSite Inc.
000 Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
RE: First Addendum to Lease Between LeukoSite Inc. ("LESSEE") and Athenaeum
Realty Nominee Trust ("LESSOR") at 000 Xxxxx Xxxxxx Xxxxxxxxx,
Xxxxxxxxxxxxx.
Dear Xxx,
Following up our discussions, this letter, when executed by the authorized
officers (President and Controller) of LeukoSite Inc. shall be the First
Amendment to the above-referenced lease. The following paragraph shall be
amended into the lease:
"28. SECURITY DEPOSIT. Upon execution of the equipment waiver by LESSOR and its
mortgagee, LESSEE shall deposit THIRTY-THREE THOUSAND ($33,000.00) DOLLARS with
the LESSOR as security for LESSEE'S payment of rent and performance of its other
obligations under this Lease and any renewals or extensions of this Lease, until
such time as the Tenant Improvement Line of Credit between LESSEE and its lender
has been fully repaid and Comdisco no longer has an option to assume this lease.
If LESSEE defaults in its payment of rent or performance of its other
obligations under this Lease, LESSOR may use all or part of the security deposit
for the payment of rent or any other amount in default, or for the payment of
any other amount
68
[LOGO]
Page 2
Xx. Xxxxxx Xxxxxxxx
June 30, 1994
that LESSOR may spend or become obligated to spend by reason of LESSEE'S
default, or for the payment to LESSOR or any other loss or damage that LESSOR
may suffer by reason of LESSEE'S default. If LESSOR so uses any portion of the
security deposit, LESSEE will restore the security deposit to its original
amount within five (5) days after written demand from LESSOR. The security
deposit will not be a limitation on LESSOR'S damages or other rights under this
Lease, or a payment of liquidated damages, or an advance of the rent. If LESSEE
pays the rent and performs all of its other obligations under this Lease, LESSOR
will return the unused portion of the security deposit to LESSEE within thirty
(30) days after LESSEE'S surrender of the Leased Premises in accordance with the
terms of this Lease or such earlier time as provided for above, however, if
LESSOR has evidence that the security deposit has been assigned by LESSEE to an
assignee of the Lease, LESSOR will return the security deposit to the assignee.
LESSOR shall not pledge or otherwise encumber the security deposit except in
connection with an assignment of all LESSOR'S rights and obligations under this
lease and only then on the condition assignee agrees in writing to
69
[LOGO]
Page 3
Xx. Xxxxxx Xxxxxxxx
June 30, 1994
recognize all rights and privileges of LESSEE under this Lease and to be bound
by all terms and conditions of this LEASE.
Said security deposit shall be held by LESSOR for the benefit of LESSEE in
an insured (for the full amount of the deposit), interest bearing account with
any interest thereon paid to LESSEE on a semi-annual basis."
Please have this letter executed and returned to me as soon as possible. I
will then get a signed counterpart back to you.
Thank you.
Sincerely,
/s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
Partner
ARJ:emg
AGREED TO BY:
LeukoSite Inc.:
BY: /s/ X.X. Xxxxxxxxx
--------------------------
President, Duly Authorized
/s/ Xxx Xxxxxxxx
--------------------------
Controller, Duly Authorized
70
[LOGO]
Page 4
Xx. Xxxxxx Xxxxxxxx
June 30, 1994
Athenaeum Realty Nominee Trust:
/s/ Xxxxxx X. Xxxxx
---------------------------
Xxxxxx X. Xxxxx, Trustee
/s/ K. Xxxxxx Xxxxxxxx
---------------------------
K. Xxxxxx Xxxxxxxx, Trustee
71
EXHIBIT A
"LEASED PREMISES"
[GRAPHIC OMITTED]
THE ATHENAEUM HOUSE
000 Xxxxx Xxxxxx, Xxxxxxxxx First Floor
72
EXHIBIT A
"LEASED PREMISES"
[GRAPHIC OMITTED]
THE ATHENAEUM HOUSE
000 Xxxxx Xxxxxx, Xxxxxxxxx Second Floor
73
EXHIBIT A
"LEASED PREMISES"
[GRAPHIC OMITTED]
THE ATHENAEUM HOUSE
000 Xxxxx Xxxxxx, Xxxxxxxxx Lower Level
74
EXHIBIT B
"LOT"
[GRAPHIC OMITTED]
THE ATHENAEUM HOUSE
000 Xxxxx Xxxxxx, Xxxxxxxxx First Floor
75
EXHIBIT C
Landlord and Mortgagee Waiver and Consent
THIS Waiver and Consent; dated as of the _______ day of ______, 19___ made
by _____________ (the "Landlord"), and ________________ (the "Mortgagee");
WITNESSETH:
WHEREAS, Landlord and Mortgagee have an interest in the real property
commonly known as _____________________ and legally described in Schedule A
attached hereto, (the "Real Property"); and
WHEREAS, Comdisco, Inc. (the "Lessor") has leased those certain items of
equipment of the general type (the ("Equipment"), described in Schedule B
attached hereto, on the Real Property and pursuant to the Master Lease Agreement
dated as of ________ and associated Equipment Schedule No. VL-1 and associated
summary schedules (collectively the "Lease") by and between Lessor and
_____________ (the "Lessee"); and
WHEREAS, Lessor must provide this Waiver and Consent to its secured party
to assign and finance rentals of the Lease;
NOW, THEREFORE, for good and sufficient consideration, receipt of which is
hereby acknowledged, the Landlord and Mortgagee hereby agrees as follows:
1. The Landlord and Mortgagee consent to the installation of the
Equipment on the Real Property and shall permit Lessor or its
designee to enter upon the Real Property for the purposes of
exercising its rights it may have under the terms of the Lease, or
otherwise including, the right to remove Equipment pursuant to the
terms thereof.
2. The Equipment shall remain Personal Property and shall not be
considered part of the Real Property or a fixture regardless of
whether or by what means it is or may become attached or affixed to
the Real Property.
3. The Landlord and Mortgagee waives and relinquishes unto the Lessor
or its assignee all claims and demands of every kind or nature
whatsoever that the Landlord or Mortgagee may now have or may
hereafter acquire against the Equipment, under present or future
provisions of law or equity.
4. This Waiver and Consent shall be binding upon the Landlord and
Mortgagee and their respective heirs, personal representatives,
successors and assigns and shall enure to the benefit of Lessor, its
successors and assigns.
In addition to the Equipment to be installed upon the Real Property Lessor
shall be financing certain tenant improvements that Lessee shall be making to
the Real Property. In the event of a default by Lessee under the terms and
conditions of the lease of the Real
76
Property, Landlord shall give Lessor and Landlord's mortgagee written notice of
such default. Within sixty days of receipt of such notice Lessor shall have the
option to assume the lease of the Real Property and pay from the date of
Landlord's written notice to Lessor, the same rent owed by Lessee under the same
terms and conditions as agreed to by Lessee under the lease of the Real
Property. Lessor's responsibility for payment of rent for the period before it
assumes the Real Property lease shall not exceed a period of the prior sixty
(60) days.
IN WITNESS WHEREOF, by execution hereof the undersigned have accepted and
agreed to this Waiver and Consent as of the date first written above.
_____________________________, the Landlord
By:_____________________________________
Title:__________________________________
_____________________________, the Mortgagee
By:_____________________________________
Title:__________________________________
77
Schedule A to
Landlord and Mortgagee Waiver and Consent
dated as of____________________
Legal Description of Real Property
Initialed:
______________Landlord
______________Mortgagee
78
Schedule B to
Landlord and Mortgagee Waiver and Consent
dated as of____________________
Equipment on Real Property
Item No. Machine Type Model/Feature Serial No. Description
-------- ------------ ------------- ---------- -----------
Initialled:
______________Landlord
______________Mortgagee
79
EXHIBIT D
LESSEE'S Equipment Eligible For Removal
Cage Washer $35,000.
Generator, Steam 8,000.
Glassware Washer 25,000.
Sterilizers (3) 112,000.
Ice Machine 3,000.
Dishwasher, Domestic 700.
Stove/Oven/Microwave 1,000.
Emergency Generator 35,000.
----------
Total $219,700.
==========
80
EXHIBIT E
DETERMINATION OF FAIR MARKET RENT
In the event LESSEE gives timely extension notice in accordance with the
provisions of Paragraph 24 hereof and the parties are unable to agree as to the
fair market rent within thirty (30) days after the receipt of LESSEE'S extension
notice, then LESSOR and LESSEE may initiate the appraisal process provided for
herein by giving notice to that effect to the other, and the party so initiating
the appraisal process (the "Initiating Party") shall specify in such notice the
name and address of the person designated to act as an appraiser on its behalf.
Within thirty (30) days after the designation of the appraiser, the other party
(the "Other Party") shall give notice to the Initiating Party specifying the
name and address of the person designated to act as an appraiser on its behalf.
The two appraisers as chosen shall meet within ten (10) days after the second
appraiser is appointed and shall exchange their determinations as to fair market
value rents. If the determinations are within ten percent (10%) of each other,
the fair market rent shall be the average of the two determinations. If, within
ten (10) days after the second appraiser is appointed, their determinations of
fair market rent are greater than ten percent and the two appraisers are unable
to agree on a fair market rent, then on the second Business Day following the
close of such ten (10) day period, the two appraisers shall, within thirty (30)
days after the second appraiser is appointed, together appoint a third
appraiser. In the event of their being unable to agree upon such appointment
within forty (40)
81
days after the appointment of the second appraiser, the third appraiser shall be
selected by the parties themselves if they can agree thereon within a further
period of fifteen (15) days. If the parties do not so agree, then either party,
on behalf of both and on notice to the other, may request such appointment by
the President of the Greater Boston Real Estate Board (or organization successor
thereto) and request him to select an impartial third arbitrator. Within five
(5) days after the appointment of the third appraiser, the first appraiser and
second appraiser shall submit to such third appraiser their respective
determinations of the fair market rent as described in the immediately preceding
clause. Such third appraiser shall, within fifteen (15) days after the end of
such five (5) day period, choose a fair market rent specified which is not less
than the lowest fair market determination submitted by the other two appraisers
nor more than the highest fair market determination, submitted by the other two
appraisers. The fair market rent determined by the third appraiser in accordance
with the procedure set forth herein conclusively be deemed to be the fair market
rent.
Each party shall pay the fees and expenses of the appraiser selected by
it. The fees and expenses of the third appraiser shall be borne by the parties.
Under no circumstances may the appraisers modify or disregard any
provision of this Lease and the jurisdiction of the appraisers is restricted
accordingly. The appraisers shall include the fair market rent such cost
escalators as are then customary and appropriate. Fair Market Rental Value is
intended to be calculated
82
in a fair and comprehensive manner so that Landlord shall achieve, and Tenant
shall pay based upon, an amount which is no less than the same net rental which
Landlord would actually receive upon a re-letting of the applicable space in an
arms' length transaction to an unrelated third party tenant where neither party
is under any compulsion or undue influence. In no event shall the Base Rent
payable for the Second Extended Term be less than the Base Rent payable for the
last year of the First Extended Term.
In the event LESSOR or LESSEE initiates the appraisal process pursuant to
this Paragraph and as of the commencement of the Extension Term the amount of
the fair market rent has not been determined, LESSEE shall pay the amount
specified by the LESSOR's appraiser, and when the final determination has been
made, it shall be retroactive as of the commencement date of the Extension Term
and any excess shall be credited by LESSOR to LESSEE as against the next monthly
Base Rent payment or payments.
83
EXHIBIT F
Rights Of Existing Tenant With Respect To Option Space
Inscribe Inc. currently leases 15,383 RSF covered under LESSEE'S expansion
rights. Inscribe's current lease expiration date is 9/30/95, and it has one (1)
option to extend its lease for one (1) year upon three (3) months prior written
notice.
84
[LOGO]
LETTERHEAD OF THE ATHENAEUM GROUP
February 26, 1997
Xxxxxx X. Xxxxxxxx, Controller
LeukoSite
000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Re: ADDITIONAL BUILT OUT SPACE ON CURRENTLY-LEASED PREMISES
Dear Xxx,
In accordance with Paragraph 4 of your existing lease, this letter is to notify
LeukoSite that rent commencement on the newly-built out conference space on the
first floor began as of November 24, 1996 (date the certificate of occupancy was
received). We have confirmed that the additional space contains 850 square feet.
Under the terms of your Lease, this commencement will increase your base rent by
$9,350.00 per annum or 3779.17 monthly and will increase your proportionate
building share from 8.59 percent to 8.88 percent. As a result, your monthly
payments will be as follows:
Base Rent -- $35,830.20
Common Area -- 4,344.00
Real Estate Taxes -- 4,097.00
----------
Total 344.271.20
==========
Therefore, due and payable immediately is $2,485.14, representing charges due
from November 24, 1996 through February 28, 1997.
85
[LOGO]
Xxxxxx X. Xxxxxxxx, Controller
Page two
February 26, 1997
As of March 1, your new monthly rent shall be $44,271.20. This will subsequently
change again on April 1, 1997 in order to reflect recently-billed adjustments
for common area costs and real estate taxes. Please do not hesitate to contact
myself or Xxxxxxx Xxxxxxx with any questions.
Sincerely,
/s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
Partner
ARJ:rmf
cc: Xxxxxxx X. Xxxxxxx
86
[GRAPHIC OMITTED]
87
SECOND AMENDMENT TO LEASE
LESSOR: ATHENAEUM PROPERTY LLC
LESSEE: LEUKOSITE INC.
DATE OF LEASE: JUNE 8, 1994;
FIRST ADDENDUM TO LEASE JUNE 30, 1994
PREMISES: 000 XXXXX XXXXXX, XXXXXXXXX, XX
For Good and Valuable Consideration, the receipt and sufficiency of which
are hereby acknowledged, the Lease between ATHENAEUM PROPERTY LLC as LESSOR and
LEUKOSITE INC. as LESSEE dated June 8, 1994 is hereby amended for the second
time, as follows:
1. EXPANDED LEASED PREMISES.
Effective December 23, 1997 (the "Effective Date"), the premises
presently leased to LESSEE ("LEASED PREMISES") shall be expanded to
include approximately two thousand three hundred (2,300) rentable
square feet ("EXPANDED LEASED PREMISES") more or less, on the first
floor of the Building located at 000 Xxxxx Xxxxxx xx Xxxxxxxxx, XX
and as shown on Exhibit A.
2. TERM The term of the LEASE will remain unchanged.
3. RENT
The Base Rent for the LEASED PREMISES shall be increased as of the
Effective Date by $46,000 per annum (calculated as 2,300 square feet
times $20.00 per rentable square feet).
4. RENT ADJUSTMENT
As of the Effective Daze, the rent adjustment percentage in
Paragraph 5.1 of the Lease shall be increased for Real Estate Taxes
and Common Area Operating expenses to 9.39% (formerly 8.59%).
88
5. TENANT UTILITIES
All LESSEE's utilities will be separately metered or billed on a
pro-rata basis.
6. CONDITION OF EXPANDED LEASED PREMISES.
LESSOR shall deliver the EXPANDED LEASED PREMISES to LESSEE in its
current "as is" condition.
7. LESSEE's RIGHT TO REDUCE LEASED PREMISES.
Provided LESSEE is not then in default beyond applicable notice and
grace periods, LESSEE shall have the right, upon ninety (90) days'
prior notice to LESSOR, to reduce the LEASED PREMISES to the
original LEASED PREMISES size (24,468 rentable square feet). Upon
said reduction, the Base Rent shall be reduced by $46,000 per annum
and the rent adjustment percentage with respect to Paragraph 5 of
the LEASE shall revert to 8.59%.
8. LESSOR's RIGHT TO REDUCE THE LEASED PREMISES.
LESSOR shall have the right, upon ninety (90) days' prior written
notice to LESSEE, to reduce the LEASED PREMISES to the ORIGINAL
LEASED PREMISES but in no event shall LESSOR cause the reduction to
occur prior to December 23, 1998. Upon said reduction, the Base Rent
shall be reduced by $46,000 per annum and the rent adjustment
percentage with respect to Paragraph 5 of the Lease shall revert to
8.59%.
9. LESSEE'S OPTION TO ELIMINATE THE LESSOR AND LESSEE's RIGHT TO REDUCE
LEASE PREMISES:
If LESSEE is not then in default, has not received written notice
from LESSOR (pursuant to Paragraph 8 above) that the EXPANDED LEASED
PREMISES will be returned to LESSOR and has not notified LESSOR that
it will give back the EXPANDED LEASED PREMISES (pursuant to
Paragraph 7 above), LESSEE shall have the right to eliminate both
the LESSOR and the LESSEE's right to reduce the LEASED PREMISES
(i.e. eliminate Paragraphs 7 and 8 above). Upon receipt in writing
of LESSEE's election of this option, LESSOR shall provide LESSEE
with a $10,000 tenant improvement allowance for work to be done on
the EXPANDED LEASED PREMISES. Once this election is made by LESSEE,
the EXPANDED LEASED PREMISES will permanently be part of the LEASED
PREMISES and part of LESSEE's LEASED PREMISES with respect to
elections to extend the LEASE. Under such an election, the Option
Base Rent on the
2
89
EXPANDED LEASED PREMISES shall be Fair Market Value as reasonably
set by LESSOR but in no event less than $46,000 per annum.
10. BROKER
The LESSOR and LESSEE each represent and warrant to the other that
each has had no dealings with any Brokers concerning this lease
other than Xxxxxx X. Xxxxx & Company and each party agrees to
indemnify and hold the other harmless for any damages occasioned to
the other by reason of a breach of this representation and warranty.
Except as herein expressly amended, the above-described LEASE shall remain
unaltered, in full force and effect, and is hereby reaffirmed.
WITNESS our hands and seals this 16th day of October, 1997.
LESSOR:
ATHENAEUM PROPERTY LLC
By: /s/ Xxxxx X. Xxxxx /s/ [ILLEGIBLE]
----------------------------- ---------------
Xxxxx X. Xxxxx, President WITNESS
Athenaeum F.A. Inc.
Managing Member
LESSEE:
LEUKOSITE INC.
By: /s/ [ILLEGIBLE] /s/ [ILLEGIBLE]
----------------------------- ---------------
President WITNESS
(Duly Authorized)
By: /s/ [ILLEGIBLE] /s/ [ILLEGIBLE]
----------------------------- ---------------
Treasurer WITNESS
(Duly Authorized)
3
90
EXHIBIT [ILLEGIBLE]
"EXPANDED LEASED PREMISES"
[GRAPHIC OMITTED]
THE ATHENAEUM HOUSE
000 Xxxxx Xxxxxx, Xxxxxxxxx First Floor
91
THIRD AMENDMENT TO LEASE
LESSOR: ATHENAEUM PROPERTY LLC
LESSEE: LEUKOSITE INC.
DATE OF LEASE: JUNE 8, 1994;
FIRST ADDENDUM TO LEASE JUNE 30,1994
SECOND AMENDMENT TO LEASE OCTOBER 16, 1997
PREMISES: 000 XXXXX XXXXXX, XXXXXXXXX, XX
For Good and Valuable Consideration, the receipt and sufficiency of which are
hereby acknowledged, the Lease between ATHENAEUM PROPERTY LLC as LESSOR and
LEUKOSITE INC. as LESSEE dated June 8, 1994 is hereby amended for the third
time, as follows:
1. EXPANDED LEASED PREMISES.
Effective March 1, 1998 (the "Effective Date"), the premises
presently leased to LESSEE ("LEASED PREMISES") shall be expanded to
include approximately four thousand (4,000) rentable square feet
("EXPANDED LEASED PREMISES") more or less, on the second floor of
the Building located at 000 Xxxxx Xxxxxx xx Xxxxxxxxx, XX and as
shown on Exhibit A.
2. TERM
The term of the LEASE will remain unchanged.
3. RENT
The Base Rent for the LEASED PREMISES shall be increased as of the
Effective Date by $80,000 per annum (calculated as 4,000 square feet
times $20.O0 per rentable square feet).
92
4. RENT ADJUSTMENT
As of the Effective Date, the rent adjustment percentage in
Paragraph 5.1 of the Lease shall be increased for Real Estate Taxes
and Common Area Operating expenses to 10.80% (formerly 9.39%).
5. TENANT UTILITIES.
All LESSEE'S utilities will be separately metered or billed on a
pro-rata basis.
6. CONDITION OF EXPANDED LEASED PREMISES.
LESSOR shall deliver the EXPANDED LEASED PREMISES to LESSEE in its
current "as is" condition.
7. OPTION RENT
The Base Rent on the EXPANDED LEASED PREMISES in the event LESSEE
elects to exercise any extension options under the LEASE shall be
Fair Market Value as reasonably set by LESSOR but in no event less
than $80,000 per annum.
8. BROKER
The LESSOR and LESSEE each represent and warrant to the other that
each has had no dealings with any Brokers concerning this lease
other than Fallon, Xxxxx & X'Xxxxxx and Xxxxxx X. Xxxxx & Company
and each party agrees to indemnify and hold the other harmless for
any damages occasioned to the other by reason of a breach of this
representation and warranty. LESSOR shall pay a commission to
Fallon, Xxxxx & X'Xxxxxx.
2
93
9. PARKING
LESSEE shall have the additional right to park four (4) cars in lots
as designated by LESSOR at fair market value as determined by
LESSOR.
Except as herein amended, the above-described LEASE shall remain unaltered, in
full force and effect, and is hereby reaffirmed.
WITNESS our hands and seals this 9th day of February 1998.
LESSOR:
ATHENAEUM PROPERTY LLC
By: /s/ Xxxxx X. Xxxxx /s/ [ILLEGIBLE]
----------------------------- ---------------
Xxxxx X. Xxxxx, President WITNESS
Athenaeum F.A. Inc.
Managing Member
LESSEE:
LEUKOSITE INC.
By: /s/ [ILLEGIBLE] /s/ [ILLEGIBLE]
----------------------------- ---------------
President WITNESS
(Duly Authorized)
By: /s/ [ILLEGIBLE] /s/ [ILLEGIBLE]
----------------------------- ---------------
Treasurer WITNESS
(Duly Authorized)
3
94
EXHIBIT [ILLEGIBLE]
"EXPANDED LEASED PREMISES"
[GRAPHIC OMITTED]
THE ATHENAEUM HOUSE
000 Xxxxx Xxxxxx, Xxxxxxxxx Second Floor
95
THIRD AMENDMENT TO LEASE
LESSOR: ATHENAEUM PROPERTY LLC
LESSEE: LEUKOSITE INC.
DATE OF LEASE: JUNE 8, 1994;
FIRST ADDENDUM TO LEASE JUNE 30,1994
SECOND AMENDMENT TO LEASE OCTOBER 16, 1997
PREMISES: 000 XXXXX XXXXXX, XXXXXXXXX, XX
For Good and Valuable Consideration, the receipt and sufficiency of which are
hereby acknowledged, the Lease between ATHENAEUM PROPERTY LLC as LESSOR and
LEUKOSITE INC. as LESSEE dated June 8, 1994 is hereby amended for the third
time, as follows:
1. EXPANDED LEASED PREMISES.
Effective March 1, 1998 (the "Effective Date"), the premises
presently leased to LESSEE ("LEASED PREMISES") shall be expanded to
include approximately four thousand (4,000) rentable square feet
("EXPANDED LEASED PREMISES") more or less, on the second floor of
the Building located at 000 Xxxxx Xxxxxx xx Xxxxxxxxx, XX and as
shown on Exhibit A.
2. TERM
The term of the LEASE will remain unchanged.
3. RENT
The Base Rent for the LEASED PREMISES shall be increased as of the
Effective Date by $80,000 per annum (calculated as 4,000 square feet
times $20.O0 per rentable square feet).
96
4. RENT ADJUSTMENT
As of the Effective Date, the rent adjustment percentage in
Paragraph 5.1 of the Lease shall be increased for Real Estate Taxes
and Common Area Operating expenses to 10.80% (formerly 9.39%).
5. TENANT UTILITIES.
All LESSEE's utilities will be separately metered or billed on a
pro-rata basis.
6. CONDITION OF EXPANDED LEASED PREMISES.
LESSOR shall deliver the EXPANDED LEASED PREMISES to LESSEE in its
current "as is" condition.
7. OPTION RENT
The Base Rent on the EXPANDED LEASED PREMISES in the event LESSEE
elects to exercise any extension options under the LEASE shall be
Fair Market Value as reasonably set by LESSOR but in no event less
than $80,000 per annum.
8. BROKER
The LESSOR and LESSEE each represent and warrant to the other that
each has had no dealings with any Brokers concerning this lease
other than Fallon, Xxxxx & X'Xxxxxx and Xxxxxx X. Xxxxx & Company
and each party agrees to indemnify and hold the other harmless for
any damages occasioned to the other by reason of a breach of this
representation and warranty. LESSOR shall pay a commission to
Fallon, Xxxxx & X'Xxxxxx.
2
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9. PARKING
LESSEE shall have the additional right to park four (4) cars in lots
as designated by LESSOR at fair market value as determined by
LESSOR.
Except as herein amended, the above-described LEASE shall remain unaltered, in
full force and effect, and is hereby reaffirmed.
WITNESS our hands and seals this 9th day of February 1998.
LESSOR:
ATHENAEUM PROPERTY LLC
By: /s/ Xxxxx X. Xxxxx /s/ [ILLEGIBLE]
----------------------------- ---------------
Xxxxx X. Xxxxx, President WITNESS
Athenaeum F.A. Inc.
Managing Member
LESSEE:
LEUKOSITE INC.
By: /s/ [ILLEGIBLE] /s/ [ILLEGIBLE]
----------------------------- ---------------
President WITNESS
(Duly Authorized)
By: /s/ [ILLEGIBLE] /s/ [ILLEGIBLE]
----------------------------- ---------------
Treasurer WITNESS
(Duly Authorized)
3
98
EXHIBIT A
"EXPANDED LEASED PREMISES"
[GRAPHIC OMITTED]
THE ATHENAEUM HOUSE
000 Xxxxx Xxxxxx, Xxxxxxxxx Second Floor
99
000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx.
("the Building")
FOURTH AMENDMENT TO LEASE
Execution Date: September 1, 1998
LESSOR Cambridge Athenaeum, LLC, successor-in-interest to Xxxxxx X.
Xxxxx and K. Xxxxxx Xxxxxxxx, Trustees of Athenaeum Realty
Nominee Trust. Lessor is referred to in this Amendment as
"Lessor".
LESSEE: Leukosite, Inc. Lessee is referred to in this Amendment as
"Lessee".
LEASE EXECUTION DATE:
June 8, 1994
EXISTING PREMISES:
Original Premises:
Areas in the basement, first, and second floors of the Building,
substantially as shown on Exhibit A attached to the Lease
Second Amendment Premises:
An area on the first floor of the Building, substantially as shown
on Exhibit A attached to the Second Amendment to Lease
Third Amendment Premises:
An area on the second floor of the Building, substantially as shown
on Exhibit A attached to the Third Amendment to Lease
TERMINATION DATE:
November 30, 1999
PREVIOUS LEASE AMENDMENTS:
First Addendum to Lease dated June 30, 1994
Second Amendment to Lease dated October 16, 1997
Third Amendment to Lease dated February 9, 0000
XXXXXX XXXXXXXXX PREMISES:
Suite 203:
An area on the second floor of the Building, containing
approximately 1,723 rentable square feet, substantially as shown on
Exhibit A, Fourth Amendment, Sheet 0
-0-
000
Xxxxx 000:
An area on the fifth floor of the Building, containing approximately
3,000 rentable square feet, substantially as shown on Exhibit A,
Fourth Amendment, Sheet 2
Suite 502:
An area on the fifth floor of the Building, containing approximately
7,800 rentable square feet, substantially as shown on Exhibit A,
Fourth Amendment, Sheet 2
WHEREAS, Lessee desires to extend the term of the Lease for an additional
five year period and to lease additional premises in the Building, to wit, the
Fourth Amendment Premises (i.e. in accordance with its first extension option as
set forth in Section 24 of the Lease);
WHEREAS, Lessor is willing to extend the term of the Lease and to lease
the Fourth Amendment Premises to Lessee on the terms and conditions hereinafter
set forth;
WHEREAS, the parties have agreed to waive Lessee's right to terminate the
term of the Lease in respect of the Expanded Leased Premises, as defined in
Paragraph 1 of the Second Amendment to Lease and as shown on Exhibit A to the
Second Amendment to Lease;
NOW THEREFORE, the above-referenced lease, as previously amended ("the
Lease") is hereby further amended as follows:
1. EXTENSION OF TERM OF LEASE
The term of the Lease is hereby extended for an additional period
commencing as of December 1, 1999 and expiring as of November 30, 2004. Said
additional term shall be upon the rental and terms set forth on Exhibit B
attached hereto and upon all of the same terms and conditions as are in effect
immediately preceding the commencement of such additional term, except to the
extent inconsistent with the provisions of this Fourth Amendment or Exhibit B.
2. DEMISE OF FOURTH AMENDMENT PREMISES
Lessor hereby demises and leases to Lessee, and Lessee hereby hires and
takes from the Lessor, the Fourth Amendment Premises. Said demise of the Fourth
Amendment Premises shall be upon all of the rental and terms set forth on
Exhibit B attached hereto and upon all of the same terms and conditions as are
applicable to the Existing Premises, except to the extent inconsistent with the
provisions of this Fourth Amendment.
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3. COMMENCEMENT DATES WITH RESPECT OF THE FOURTH AMENDMENT PREMISES.
The Commencement Dates in respect of each portion of the Fourth Amendment
Premises shall be as follows:
Suite 203: The later of: (i) June 20, 1999, or (ii) the date that the tenant
presently occupying Xxxxx 000 xxxxxxx Xxxxx 000.
Suite 501: The later of: (i) September 10, 1998, or (ii) the date that the
tenant presently occupying Xxxxx 000 xxxxxxx Xxxxx 000.
Suite 502: The later of: (i) the earlier of: (x) the date one hundred twenty
(120) days after Lessor gives Lessee written notice that Suite 502
will be available for Lessee's occupancy, or (y) January 1, 1999, or
(ii) the date that the tenant presently occupying Xxxxx 000 xxxxxxx
Xxxxx 000.
4. CONDITION OF FOURTH AMENDMENT PREMISES
Lessee shall take each portion of the Fourth Amendment Premises "as-is",in
the condition in which such portion of the Fourth Amendment Premises is in as of
the Commencement Date in respect of such portion of the Fourth Amendment
Premises, without any representation or warranty by Lessor to Lessee as to the
condition of the Fourth Amendment Premises or the Building, and without any
obligation on the part of Lessor to prepare or construct the Fourth Amendment
Premises for Lessee's occupancy. Without limiting the foregoing, the following
provisions of the Lease shall have no applicability to the Fourth Amendment
Premises: Sections 3.1.1, 3.2, 3.3, 3.3.3, and 3.4 of the Lease.
5. LESSOR'S CONTRIBUTION
A. Lessor shall, in the manner hereinafter set forth, provide to Lessee up
to Two Hundred Thirty-Eight Thousand Seventy-Five and 00/100 ($238,075.00)
Dollars ("Lessor's Contribution") towards the cost of leasehold improvements to
be installed by Lessee in any portion of the Fourth Amendment Premises
("Lessee's Work"). Provided that Lessee is not in default, beyond the expiration
of any applicable grace periods, of its obligations under the Lease at the time
that Lessee submits any requisition on account of Lessor's Contribution, Lessor
shall pay the cost of the work shown on each requisition (as hereinafter
defined) submitted by Lessee to Lessor within thirty (30) days of submission
thereof by Lessee to Lessor.
B. For the purposes hereof, a "requisition" shall mean written
documentation (including, without limitation, invoices from Lessee's contractor,
written lien waivers and
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102
such other documentation as Lessor's mortgagee may reasonably request) showing
in reasonable detail the costs of the improvements installed to date in the
Fourth Amendment Premises, accompanied by certifications from Lessee, Lessee's
architect, and Lessee's contractor that the work performed to date has been
performed in accordance with applicable laws and in accordance with Lessee's
approved plans, and that the amount of the requisition in question does not
exceed the amount of the work covered by such requisition. Each requisition
shall be accompanied by evidence reasonably satisfactory to Lessor that all work
covered by previous requisitions has been fully paid by Lessee. Lessor shall
have the right, upon reasonable advance notice to Lessee, to inspect Lessee's
books and records relating to each requisition in order to verify the amount
thereof. Lessee shall submit requisition(s) no more often than monthly.
X. Xxxxxx shill have no obligation to advance funds on account of Lessor's
Contribution unless and until Lessor has received the requisition in question,
together with the certifications required by Subparagraph B of this Paragraph 5,
certifying that the work shown on the requisition has been performed in
accordance with applicable law and in accordance with Lessee's approved plans.
D. Except with respect to work and/or materials previously paid for by
Lessee, as evidenced by paid invoices and written lien waivers provided to
Lessor, Lessor shall have the right to have Lessor's Contribution paid to both
Lessee and Lessee's contractor(s) and vendor(s) jointly.
E. Lessee's Work shall be performed in accordance with the Lease,
including, without limitation, Article 3.3.1.
6. UTILITIES
All utilities consumed in the Fourth Amendment Premises will be separately
metered and paid for directly by Lessee, or will be billed by Lessor to Lessee
on a pro-rata basis and paid by Lessee to Lessor, within ten (10) days of
billing therefore, as additional rent.
7. PARKING
A. The parties hereby confirm that, as of the Execution Date of this
Fourth Amendment: (i) Lessee has the right to use 53 parking spaces ("Existing
Parking Spaces") in the parking areas serving the Building ("Parking Areas"),
(ii) Lessee has no obligation to pay for the use of five of said parking spaces,
and (iii) Lessee is obligated to pay for the use of 48 of said parking spaces,
as part of Base Rent, based upon the annual fair rental value of said parking
spaces, as determined by Lessor, from time to time.
B. Commencing as of the Commencement Date in respect of Suite 501 and
continuing thereafter throughout the term of the Lease, as it may be extended,
there shall be appurtenant to Lessee's demise of the Fourth Amendment Premises,
the right to use an
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103
additional fifteen (15) parking spaces ("Additional Parking Spaces") in the
Parking Areas. Lessee shall pay for the use of the Additional Parking Spaces, as
part of Base Rent, at a rate equal to the annual fair rental value of such
parking spaces, as reasonably determined by Lessor, from time to time. Lessee's
use of said Additional Parking Spaces shall be subject to the same terms and
conditions as are applicable to Lessee's use of the Existing Parking Spaces.
C. Lessee's use of both the Existing Parking Spaces and the Additional
Parking Spaces shall be subject to such reasonable rules and regulations as
Lessor may promulgate from time to time.
8. LESSEE'S EXPANSION OPTIONS
A. Except as set forth in this Xxxxxxxxx 0, Xxxxxx shall have no right to
lease additional premises in the Building. Without limiting the foregoing,
Section 25 of the Lease is hereby deleted in its entirety and is of no further
force or effect.
B. Suite 304
(1) Definition of Suite 304. "Suite 304" is a portion of the third
floor of the Building containing approximately 12,865 rentable square feet of
area. Suite 304 is substantially as shown on Exhibit A, Fourth Amendment, Sheet
2. Suite 304 is presently leased to Inscribe pursuant to a lease, the term of
which expires as of September 30, 1999. Lessee's right to lease Suite 304 is
subject to the rights of two other lessees in the Building, Active Control
Experts ("ACX") and CLAM Associates, Inc. ("CLAM") to lease Suite 304.
(2) Lessee's Right to Lease Suite 304. On the conditions (which
conditions Lessor may waive by written notice to Lessee at any time) that Lessee
is not in default of its obligations under the Lease, both at the time that
Lessor gives Lessee an Offer, as hereinafter defined, to lease Suite 304, and as
of the Commencement Date in respect of Suite 304, and subject to the provisions
of this Subparagraph B, Lessee shall have the right to lease Suite 304 as
follows.
(3) Option Procedures. If ACX either fails timely to lease Suite 304
or irrevocably waives its right lease Suite 304, then Lessor shall give to
Lessee a written offer ("Offer") to lease Suite 304. Said Offer shall be upon
the terms set forth in Subparagraph B(4) of this Paragraph 8 and shall be
subject to the rights of CLAM to lease Suite 304 on the terms set forth in the
Offer. Lessee shall have fourteen (14) business days following receipt of the
Offer to give written notice ("Acceptance Notice") to Lessor accepting the
Offer. If Lessee does not timely give the Acceptance Notice, Lessee shall have
no further right to lease Suite 304 pursuant to this Subparagraph B, time being
of the essence of this Subparagraph B. If Lessee timely gives the Acceptance
Notice, then, subject to the provisions of this Subparagraph B, Lessor shall
demise and
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104
lease to Lessee, and Lessee shall hire and take from Lessor Suite 304 on the
terms set forth in the Offer. Notwithstanding anything to the contrary herein
contained:
(a) If ACX exercises its right to lease Suite 304, then Lessor shall
have no obligation to give an Offer to lease Suite 304 to Lessee and
Lessee shall have no further right to lease Suite 304; and
(b) Lessee acknowledges that CLAM will have the right to lease Suite
304 based upon the Offer if it is accepted by Lessee. Therefore, if CLAM
exercises its right to lease Suite 304, Lessee shall have no further right
to lease Suite 304.
(4) Terms Applicable to Lessee's Demise of Suite 304. The Offer
shall be on all of the terms and conditions of the Lease applicable to the other
premises demised to Lessee except as follows:
(a) Commencement Date. The Commencement Date in respect of Suite 304
shall be the later of: (x) October 1, 1999, or (y) the date that Inscribe
vacates Suite 304.
(b) Base Rent. The Base Rent payable by Lessee in respect of Suite
304 shall be based upon the fair market rent of Suite 304, as of October 1,
1999, as determined by Lessor in its bona fide business judgment. Lessee shall
have no right to submit the rent payable by Lessee in respect of Suite 304 to
appraisal. Lessee's obligation to pay Base Rent in respect of Suite 304 shall
commence as of the Commencement Date in respect of Suite 304.
(c) Lessee's Proportionate Building Share. Lessee's Proportionate
Building Share in respect of Suite 304 shall be 4.52%.
(d) Parking. As appurtenant to the demise of Suite 304 Lessee shall
have the right to use ten (10) additional parking spaces ("Suite 304 Parking
Spaces") in the Parking Areas. Lessee shall pay for the use of the Suite 304
Parking Spaces as part of Base Rent, at a rate equal to the annual fair rental
value of the Suite 304 Parking Spaces, as reasonably determined by Lessor, from
time to time. Lessee's use of the Suite 304 Parking Spaces shall be subject to
the same terms and conditions as are applicable to Lessee's use of the Existing
Parking Spaces.
(e) Condition of Suite 304. Lessee shall take Suite 304 "as-is", in
the condition in which Suite 304 is in as of the Commencement Date in respect of
Suite 304, without any representation or warranty by Lessor to Lessee as to the
condition of Suite 304 or the Building, and without any obligation on the part
of Lessor to prepare or construct Suite 304 for Lessee's occupancy.
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105
(f) Lessor's Contribution. Lessor shall not be obligated to provide
any Lessor Contribution to Lessee in respect of Suite 304:
(g) Lessee's Extension Option. Lessee's remaining extension option
(i.e. relating to the Second Extended Term) shall apply to Suite 304. The rental
payable by Lessee in respect of Suite 304 for the Second Extended Term shall be
based upon one hundred (100%) percent of the Market Rent of Suite 304,
determined in accordance with Exhibit E to the Lease, plus the annual fair value
of the Suite 304 Parking Spaces as determined by Lessor.
(h) Confirmatory Lease Amendment. Notwithstanding the fact that
Lessee's exercise of the above-described expansion option shall be
self-executing, as aforesaid, the parties hereby agree promptly to execute a
lease amendment reflecting the addition of Suite 304. The execution of such
lease amendment shall not be deemed to waive any of the conditions to Lessee's
exercise of the herein expansion option, unless otherwise specifically provided
in such lease amendment.
C. Suite 303
(1) Definition of Suite 303. "Suite 303" is a portion of the third
floor of the Building containing approximately 2,518 rentable square feet of
area. Suite 303 is substantially as shown on Exhibit A, Fourth Amendment, Sheet
2. Suite 303 is presently leased to Inscribe pursuant to a lease, the term of
which expires as of September 30, 1999. Lessee's right to lease Suite 303 is
subject to the rights of three other lessees in the Building, Cambridge
Communications ("CAMBRIDGE COMMUNICATIONS" [d/b/a Media Map]), Active Control
Experts ("ACX") and CLAM Associates, Inc. ("CLAM") to lease Suite 303.
(2) Lessee's Right to Lease Suite 303. On the conditions (which
conditions Lessor may waive by written notice to Lessee at any time) that Lessee
is not in default of its obligations under the Lease, both at the time that
Lessor gives Lessee an Offer, as hereinafter defined, to lease Suite 303, and as
of the Commencement Date in respect of Suite 303, and subject to the provisions
of this Subparagraph C, Lessee shall have the right to lease Suite 303 as
follows.
(3) Option Procedures. If CAMBRIDGE COMMUNICATIONS and ACX both fail
timely to lease Suite 303 and/or irrevocably waive their tights to lease Suite
303, then Lessor shall give to Lessee a written offer ("Offer") to lease Suite
303. Said Offer shall be upon the terms set forth in Subparagraph C of this
Paragraph 8 and shall be subject to the rights of CLAM to lease Suite 303 on the
terms set forth in the Offer. Lessee shall have fourteen (14) business days
following receipt of the Offer to give written notice ("Acceptance Notice") to
Lessor accepting the Offer. If Lessee does not timely give the Acceptance
Notice, Lessee shall have no further right to lease Suite 303 pursuant to this
Subparagraph C, time being of the essence of this Subparagraph C. If Lessee
timely gives the Acceptance Notice, then, subject to the provisions of this
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106
Subparagraph C, Lessor shall demise and lease to Lessee, and Lessee shall hire
and take from Lessor Suite 303 on the terms set forth in the Offer.
Notwithstanding anything to the contrary herein contained:
(a) If either CAMBRIDGE COMMUNICATIONS or ACX exercises its right to
lease Suite 303, then Lessor shall have no obligation to give an Offer to
lease Suite 303 to Lessee and Lessee shall have no further right to lease
Suite 303; and
(b) Lessee acknowledges that CLAM will have the right to lease Suite
303 based upon the Offer if it is accepted by Lessee. Therefore, if CLAM
exercises its right to lease Suite 303, Lessee shall have no further right
to lease Suite 303.
(4) Terms Applicable to Lessee's Demise of Suite 303. The Offer
shall be on all of the terms and conditions of the Lease applicable to the other
premise demised to Lessee except as follows:
(a) Commencement Date. The Commencement Date in respect of the Suite
303 shall be the later of: (x) October 1, 1999, or (y) the date that Inscribe
vacates Suite 303.
(b) Base Rent. The Base Rent payable by Lessee in respect of Suite
303 shall be based upon the fair market rent of Suite 303, as of October 1,
1999, as determined by Lessor in its bona fide business judgment. Lessee shall
have no right to submit the rent payable by Lessee in respect of Suite 303 to
appraisal. Lessee's obligation to pay Base Rent in respect of Suite 303 shall
commence as of the Commencement Date in respect of Suite 303.
(c) Lessee's Proportionate Building Share. Lessee's Proportionate
Building Share in respect of Suite 303 shall be .88%.
(d) Parking. As appurtenant to the demise of Suite 303 Lessee shall
have the right to use two (2) additional parking spaces ("Suite 303 Parking
Spaces") in the Parking Areas. Lessee shall pay for the use of the Suite 303
Parking Spaces as part of Base Rent, at a rate equal to the annual fair rental
value of the Suite 303 Parking Spaces, as reasonably determined by Lessor, from
time to time. Lessee's use of the Suite 303 Parking Spaces shall be subject to
the same terms and conditions as are applicable to Lessee's use of the Existing
Parking Spaces.
(e) Condition of Suite 303. Lessee shall take Suite 303 "as-is", in
the condition in which Suite 303 is in as of the Commencement Date in respect of
Suite 303, without any representation or warranty by Lessor to Lessee as to the
condition of Suite 303 or the Building, and without any obligation on the part
of Lessor to prepare or construct Suite 303 for Lessee's occupancy.
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107
(f) Lessor's Contribution. Lessor shall not be obligated to provide
any Lessor Contribution to Lessee in respect of Suite 303.
(g) Lessee's Extension Option. Lessee's remaining extension option
(i.e. relating to the Second Extended Term) shall apply to Suite 303. The rental
payable by Lessee in respect of Suite 303 for the Second Extended Term shall be
based upon one hundred (100%) percent of the Market Rent of Suite 303,
determined in accordance with Exhibit E to the Lease, plus the annual fair value
of the Suite 303 Parking Spaces as determined by Lessor.
(h) Confirmatory Lease Amendment. Notwithstanding the fact that
Lessee's exercise of the above-described expansion option shall be
self-executing, as aforesaid, the parties hereby agree promptly to execute a
lease amendment reflecting the addition of Suite 303. The execution of such
lease amendment shall not be deemed to waive any of the conditions to Lessee's
exercise of the herein expansion option, unless otherwise specifically provided
in such lease amendment.
9. LESSEE'S EXTENSION OPTIONS
A. The parties acknowledge that the extension of the term of the Lease
through November 30, 2004 has effected the exercise of right to extend the term
of the Lease for the First Extended Term pursuant to Section 24 of the Lease.
The parties confirm and agree that Lessee has one remaining extension option
pursuant to Section 24 of the Lease (i.e. with respect to the Second Extended
Term which would commence as of December 1, 2004 and would expire as of November
30, 2009).
B. If Lessee exercises its right, pursuant to Section 24 of the Lease to
extend the term of the Lease for the Second Extended Term, then the parties
confirm and agree that: (i) the Base Rental payable in respect of the Original
Premises shall be based upon ninety (90%) percent of the Market Rent for the
Original Premises as of December 1, 2004, determined in accordance with Exhibit
E to the Lease, (ii) the Base Rental payable in respect of all other premises
then demised to Lessee shall be based upon one hundred (100%) percent of the
Market Rent of such premises as of December 1, 2004, determined in accordance
with Exhibit E to the Lease, and (iii) the Base Rent payable in respect of all
parking spaces, other than the first five parking spaces (which shall be
provided at no cost or charge to Lessee) shall be based upon the annual fair
value of such parking spaces, as reasonably determined by Lessor, from time to
time.
10. BROKER
Each party represents to the other party that it has not dealt with any
broker in connection with the execution and delivery of this Fourth Amendment
other than Xxxxxx Xxxxx & X'Xxxxxx, a Xxxxxxxx Xxxx Company. Each party shall
indemnify, defend and hold the other party harmless from any claims, losses, or
damages (including, without
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108
limitation, reasonable attorneys fees) arising in breach of its representations
under this Paragraph 10. Section 20 of the Lease shall have no applicability to
this Fourth Amendment.
11. NOTICES TO LESSOR
Until Lessee receives notice changing Lessor's notice address, any notices
to be sent to Lessor shall be sent to the following address:
c/o Beacon Capital Partners
Xxx Xxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxx, XX 00000
12. LESSEE'S RIGHT TO REDUCE THE SIZE OF THE PREMISES
Lessee shall have no right to terminate its lease of the Fourth Amendment
Premises pursuant to Paragraphs 7,8, or 9 of the Second Amendment (i.e.
Paragraphs 7, 8, and 9 of the Second Amendment shall have no applicability to
the Fourth Amendment Premises.
13. LESSEE'S SUBLETTING RIGHTS WITH RESPECT TO THE FOURTH AMENDMENT
PREMISES
Notwithstanding anything to the contrary in the Lease (including, without
limitation, Section 12 thereof), the following provisions shall apply to the
Fourth Amendment Premises:
A. Sublet Profit in respect of the Fourth Amendment Premises. In the event
of a sublease of the Fourth Amendment Premises or any portion thereof, Lessee
shall pay to Lessor, as additional rent, fifty (50%) percent of any Net Sublease
Profits, as hereinafter defined, payable in accordance with the following. "Net
Sublease Profit" shall be defined as a monthly amount equal to the amount by
which the sublease rent and other charges payable by the sublessee to Lessee
under the sublease of the Fourth Amendment Premises, or any portion thereof,
exceeds the sum of the rent and other charges payable under this Lease allocable
to the sublet portion thereof, plus a monthly amount equal to the "Sublease
Expenses", as hereinafter defined, divided by the number of months in the term
of the sublease. The Net Sublease Profit shall be payable on a monthly basis
concurrently with the sublessee's payment of rent to Lessee under the sublease.
"Sublease Expenses" shall be defined as the sum of brokerage commissions, legal
fees, design costs and construction costs incurred by Lessee in connection with
the sublease in question.
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X. Xxxxxx'x Recapture Right with Respect to Proposed Subleases of the
Fourth Amendment Premises. Lessor shall have the right to recapture portions of
the Fourth Amendment Premises which Lessee proposes to sublease, as follows:
(1) For the purposes of this Subparagraph B, a "Triggering Sublease" shall
be defined as any proposed sublease of a portion of the Fourth Amendment
Premises for a term which will terminate on or after the date one (1) month
prior to the expiration of the term of the Lease, and which either will (a)
sublease an area containing 3,130 or more of the rentable floor area, or (b)
together with other subleases of the Fourth Amendment Premises then effect,
effect the subleasing of 3,130 square feet or more of the rentable floor area of
the Fourth Amendment Premises.
(2) At the time that Lessee requests Lessor's consent to any proposed
sublease of a Triggering Sublease, Lessee shall, for sublease or assignment give
Lessor a Recapture Offer, as hereinafter defined.
(3) For the purposes hereof a "Recapture Offer" shall be defined as a
notice in writing from Lessee to Lessor which:
(a) States that Lessee desires to sublet a portion of the Fourth
Amendment Premises;
(b) Identifies the affected portion of the premises ("Recapture
Premises").
(c) Identifies the proposed sublessee and provides to Lessor
sufficient financial and other information about the proposed sublessee as
is reasonably necessary in order to enable Lessor to determine whether to
grant its consent to such proposed sublease.
(d) Includes a copy of the proposed sublease.
(e) Offers to Lessor to terminate the Lease in respect of the
Recapture Premises (i.e. Lessee's rental obligations shall be reduced
based upon in proportion to the ratio of the rentable floor area of the
Recapture Premises to the rentable Area of the premises then demised to
Lessee).
(4) Lessor shall have fifteen (15) business days to accept a Recapture
Offer. If Lessor timely accepts the Recapture Offer, then the term of the Lease
in respect of the Recapture Premises shall terminate as of the date that the
proposed sublease would have commenced had Lessor not accepted the Recapture
Offer. If Lessor does not timely give written notice to Lessee accepting a
Recapture Offer; then Lessor agrees that it will not unreasonably withhold or
delay its consent to a sublease of the Recapture Premises, to a Qualified
Transferee, as hereinafter defined. If Lessor gives written notice to Lessee
accepting a Recapture Offer ("Lessor's Recapture Notice"), then Lessor shall, at
the time
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that Lessee vacates and delivers the Recapture Premises to Lessor, reimburse
Lessee for the unamortized portion of the Allocable Portion of Lessee's Fourth
Amendment Premises Costs, as hereinafter defined. For the purposes of this
Paragraph 14(B)(4):
(i) Lessee's Fourth Amendment Premises Costs shall be defined as the
amount, if any, by which the total cost of the leasehold improvements installed
by Lessee in connection with the initial preparation of the Fourth Amendment
Premises for Lessee's occupancy exceeds Lessor's Contribution, as defined in
Paragraph 5 of this Fourth Amendment. In no event shall Lessee's Fourth
Amendment Premises Costs, for the purposes of this Paragraph 14(B)(4), exceed
One Hundred Twenty-Five Thousand Two Hundred Thirty and 00/100 ($125,230.00)
Dollars. Lessee shall submit to Lessor on or before December 31, 1999, evidence
reasonably satisfactory to Lessor of Lessee's Fourth Amendment Premises Costs.
If Lessee fails reasonably to submit satisfactory evidence of any cost to Lessor
prior to December 31, 1999, such cost shall not be included in Lessee's Fourth
Amendment Premises Costs.
(ii) With respect to any portion of the Fourth Amendment Premises, the
Allocable Portion of Lessee's Fourth Amendment Premises Costs shall be based
upon the ratio of the rentable area of such portion of the Fourth Amendment
Premises to the rentable area of the entire Fourth Amendment Premises.
(iii) The unamortized portion of the Allocable Portion of Lessee's Fourth
Amendment Premises Costs shall be based upon the effective date ("Effective
Date") that Lessor recaptures such Recapture Premises as follows:
(a) If the Effective Date occurs prior to December 31, 1999, the
unamortized portion shall be defined as one hundred (100%) percent.
(b) If the Effective Date occurs during calendar year 2000, the
unamortized portion shall be defined as eighty (80%) percent.
(c) If the Effective Date occurs during calendar year 2001, the
unamortized portion shall be defined as sixty (60%) percent.
(d) If the Effective Date occurs during calendar year 2002, the
unamortized portion shall be defined as forty (40%) percent.
(e) If the Effective Date occurs during calendar year 2003, the
unamortized portion shall be defined as twenty (20%) percent.
(5) For the purposes hereof, a "Qualified Transferee" shall be
defined as a person, firm or corporation which, in Lessor's reasonable opinion:
(a) is financially responsible and of good reputation;
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(b) is engaged in a business, the functional aspects of which, with
respect to the premises, are similar to the use of other premises
made by other office space Lessees in the Building; and
(c) is not a Lessee or sublessee of premises in the Building
(6) Notwithstanding anything to the contrary in this Paragraph B
contained, if Lessee is in default of its obligations under the Lease at the
time that it makes the aforesaid offer to Lessor, such default shall be deemed
to be a "reasonable" reason for Lessor withholding its consent to any proposed
subletting or assignment; and
(7) No subletting or assignment shall relieve Lessee of its primary
obligation as party-tenant hereunder, nor shall it reduce or increase Lessor's
obligations under the Lease. The provisions of this Subparagraph (7) shall not
be limited to the Fourth Amendment Premises and shall apply to any sublease or
assignment by Lessee.
14. LESSEE'S LIABILITY INSURANCE
All liability insurance which Lessee or its contractors are required to
carry under the Lease (including, without limitation, pursuant to Sections 9A
and 11) shall name Lessee, Lessor, and Lessor's managing agent as insured
parties.
15. WAIVER OF SUBROGATION
Any insurance carried by Lessee with respect to its property located in
the Premises or the Building shall include an endorsement denying to the insurer
rights of subrogation against Lessor's managing agent (as well as Lessor).
Lessee, notwithstanding any provisions of the Lease to the contrary hereby
waives any rights of recovery against Lessor's managing agent (as well as
Lessor) for injury or loss due to hazards covered by such insurance.
16. LIMITATIONS ON LESSOR'S LIABILITY
Lessee shall neither assert nor seek to enforce any claim against Lessor,
or Lessor's agents or employees, or the assets of Lessor or of Lessor's agents
or employees, for breach of the Lease or otherwise, other than against Lessor's
interest in the Building and in the uncollected rents, issues and profits
thereof, and Lessee agrees to look solely to such interest for the satisfaction
of any liability of Lessor under this Lease, it being specifically agreed that
in no event shall Lessor or Lessor's agents or employees (or any of the
officers, trustees, directors, partners, beneficiaries, joint venturers,
members, stockholders or other principals or representatives, and the like,
disclosed or undisclosed, thereof) ever be personally liable for any such
liability. This paragraph shall not limit any right that Lessee might otherwise
have to obtain injunctive relief against Lessor or to take any other action
which shall not involve the personal liability of Lessor to respond in monetary
damages from Lessor's assets other than the Lessor's interest in said real
estate,
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as aforesaid. In no event shall Lessor or Lessor's agents or employees (or any
of the officers, trustees, directors, partners, beneficiaries, joint venturers,
members, stockholders or other principals or representatives and the like,
disclosed or undisclosed, thereof) ever be liable for consequential or
incidental damages. Without limiting the foregoing, in no event shall Lessor or
Lessor's agents or employees (or any of the officers, trustees, directors,
partners, beneficiaries, joint venturers, members, stockholders or other
principals or representatives and the like, disclosed or undisclosed, thereof)
ever be liable for lost profits of Lessee.
17. WAIVER OF RIGHTS TO TERMINATE THE TERM OF THE LEASE IN RESPECT OF
THE EXPANDED LEASED PREMISES
A. Paragraphs 7,8 and 9 of the Second Amendment to Lease are hereby
deleted in their entirety and are of no further force or effect.
B. Effective as of November 1, 1998, Annual Base Rent in respect of the
Expanded Leased Premises shall be increased to Fifty-Seven Thousand Five Hundred
and 04/100 (i.e., a monthly payment of $4,791.67).
C. The rent adjustment percentage in respect of the Expanded Leased
Premises shall be .80%.
D. In consideration of Lessee waiving its right with respect to the
Expanded Leased Premises (i.e., as set forth in Paragraphs 7 and 9 of the Second
Amendment), Lessor shall, on November 1, 1998, pay to Lessee Ten Thousand and
00/100 ($10,000.00) Dollars.
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18. As hereby amended, the Lease is ratified, confirmed and approved in
all respects.
EXECUTED UNDER SEAL as of the date first above written.
LESSOR
CAMBRIDGE ATHENAEUM LLC, a Delaware limited liability company
By: Xxxxxxx Athenaeum, LLC, a Delaware limited liability company,
its manager
By: Beacon/XX Xxxxxxx LLC, a Delaware limited liability company, its
manager
By: Beacon Capital Partners, L.P., a Delaware limited partnership
d/b/a Beacon Capital Partners Limited
Partnership, its manager
By: Beacon Capital Partners, Inc., a Maryland
corporation, its general partner
By: /s/ Xxxxxx Xxxxxx
---------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
Hereunto Duly Authorized
LESSEE:
LEUKOSITE, INC.
By: /s/ Xxxxxxxxxxx Xxxxxxxxx Date Signed: 11/12/98
--------------------------- --------
Name: Xxxxxxxxxxx Xxxxxxxxx
Title: CEO & Director
Hereunto Duly Authorized
Date Signed:
--------------
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EXHIBIT B
LEASE DATA, FOURTH AMENDMENT
Execution Date: As of September 1, 1998
Lessor: Cambridge Athenaeum, LLC
Lessee: Leukosite, Inc.
Building: 000 Xxxxx Xxxxxx, Xxxxxxxxx, Xx
Premises:
Original Premises:
Areas in the basement, first, and second floors of the Building,
substantially as shown on Exhibit A attached to the Lease
Second Amendment Premises:
An area on the first floor of the Building, substantially as shown
on Exhibit A attached to the Second Amendment to Lease
Third Amendment Premises:
An area on the second floor of the Building, substantially as shown
on Exhibit A attached to the Third Amendment to Lease
Fourth Amendment Premises:
Suite 203:
An area on the second floor of the Building, substantially as shown
on Exhibit A, Fourth Amendment, Sheet 1
Suite 501:
An area on the fifth floor of the Building, substantially as shown
on Exhibit A, Fourth Amendment, Sheet 3
Suite 502:
An area on the fifth floor of the Building, substantially as shown
on Exhibit A, Fourth Amendment, Sheet 3
Rentable Areas and Lessee's Shares:
Area Lessee's Share
Original Premises:
8.59%
Second Amendment Premises: 0.80%
Third Amendment Premises: 1.41%
Fourth Amendment Premises:
Suite 203: 0.60%
Suite 501: 1.05%
Suite 502: 2.74%
-----
Total 15.19%
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Base Rent (not including parking spaces)
All Premises other than Fourth Amendment Premises:
From the date of this Amendment through October 31, 1998:
$698,050.32 per annum (i.e. monthly installments of $58,170.86
November 1, 1998 through November 30, 1999: $709,550.32 per annum
(i.e., monthly installments of $59,129.19)
December 1, 1999 through November 30,2004: $474,984.00 per annum
(i.e. monthly installments of $39,582.00)
Fourth Amendment Premises:
Suite 203:
Commencing as of the Commencement Date in respect of Suite 203
through November 30,2004: $43,075.00 per annum (i.e. monthly
installments of $3,589.58)
Suite 501:
Commencing as of the Commencement Date in respect of Suite 501
through November 30, 2004: $75,000.00 per annum (i.e. monthly
installments of $6,250.00)
Suite 502:
o Lessee shall have no obligation to pay Base Rent in
respect of Suite 502 for the period commencing as of the
Commencement Date in respect of Suite 502 and ending as
the sixtieth day after the Commencement Date in respect
of Suite 502.
o Commencing as of the date sixty (60) days after the
Commencement Date in respect of Suite 502 through
November 30, 2004: $226,200.00 per annum (i.e. monthly
installments of $18,850.00)
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EXHIBIT A, FOURTH AMENDMENT, SHEET 1
[GRAPHIC OMITTED]
117
EXHIBIT A, FOURTH AMENDMENT, SHEET 2
[GRAPHIC OMITTED]
118
Exhibit B
Floor Plan of Premises
119
Exhibit B
[GRAPHIC OMITTED]
120
Exhibit C
Consent of Landlord
The foregoing Sublease is made with full knowledge and agreement of
Landlord and Landlord accepts the Sublease but retains all rights to approve any
future sublease or assignment, as set forth in the Prime Lease.
LANDLORD:
CAMBRIDGE ATHENAEUM LLC,
a Delaware limited liability company
By: Xxxxxxx Athenaeum, LLC, a Delaware limited liability company,
its manager
By: Beacon/XX Xxxxxxx, LLC, a Delaware limited liability company, its
manager
By: Beacon Capital Partners, L.P., a Delaware limited partnership
d/b/a Beacon Capital Partners Limited
Partnership, its manager
By: Beacon Capital Partners, Inc., a Maryland Corporation,
its general partner
By:
---------------------------
Name:
Title:
121
000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx
("the Building")
OVERLANDLORD'S CONSENT TO SUBLEASE
Dated as of November 17, 1998
A. The undersigned Overlandlord, as Landlord, under a certain Lease dated
June 8, 1998 (the "Lease"), by and between Cambridge Athenaeum LLC, a
Delaware limited liability company, successor in interest to Xxxxxx X.
Xxxxx and K Xxxxxx Xxxxxxxx, Trustees of Athenaeum Realty Nominee Trust,
Landlord, and LeukoSite, Inc., a Delaware corporation, Tenant, for
premises (the "Premises") in the Building, hereby consents to a Sublease
(the "Sublease") under the sublease dated as of November 17, 1998
("Sublease") by and between LeukoSite, Inc., as Sublandlord, and Sage
Networks, Inc., as Subtenant, of certain premises (the "Sublet Premises")
located on the fifth (5th) floor of the Building, containing 7,800
rentable square feet, provided that:
1. A copy of any notice sent pursuant to said Sublease shall be sent to
Overlandlord, do Beacon Capital Partners, Inc., Xxx Xxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: Treasurer, certified mail,
return receipt requested;
2. Subtenant shall have no right, without Overlandlord's prior written
consent, to further sublet the Sublet Premises or any portion
thereof nor shall the Subtenant have any right, without
Overlandlord's prior written consent, to assign said Sublease.
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3. Subtenant shall name Overlandlord as an additional insured party
under any liability insurance policy which Subtenant is required to
maintain and, prior to taking possession of the Sublet Premises,
Subtenant shall deliver to Overlandlord a certificate of such
insurance.
B. Nothing herein contained shall:
1. Be deemed to diminish or relieve LeukoSite, Inc. of its primary
responsibility as party-tenant under the Lease;
2. Be deemed in any way to limit, restrict, or diminish Overlandlord's
rights under the Lease;
3. Extend, or otherwise increase, Overlandlord's obligations under the
Lease; or
4. Extend the term of the Lease.
Without limiting the foregoing, in the event that the Lease is terminated
for any reason, Subtenant shall have no further right to occupy the Sublet
Premises.
C. Anything contained in the Sublease which is contrary to provisions and
conditions of this Overlandlord's Consent shall be null and void and of no
force and effect so far as it relates to the rights and obligations of
Overlandlord.
D. Any and all alterations, additions and improvements in or to the First
Amendment Sublet Premises shall be subject to Overlandlord's prior written
consent.
E. The undersigned Overlandlord hereby reserves its right to withhold consent
where the Lease allows the Landlord to withhold consent.
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F. The undersigned Overlandlord hereby reserves rights to withhold consent
where the Lease allows the Landlord to withhold consent.
OVERLANDLORD:
CAMBRIDGE ATHENAEUM LLC,
a Delaware limited liability company
By: Xxxxxxx Athenaeum LLC,
a Delaware limited liability company, its manager
By: Beacon/XX Xxxxxxx LLC, a Delaware limited liability
company, its manager
By: Beacon Capital Partners, L.P., a Delaware
limited partnership d/b/a Beacon Capital Partners
Limited Partnership, its manager
By: Beacon Capital Partners, Inc.,
a Maryland corporation, its general partner
By: /s/ Xxxxxx Xxxxxx
----------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
Hereunto Duly Authorized
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