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EXHIBIT 10.7
LEASE
DATED MAY 15, 0000
XXXXXXX
XXXXX X. XXXXXXXX, XXX, AS
TRUSTEE UNDER THE WILL OF XXXXX X. XXXXXXXX, AS LANDLORD
AND
IMMUNOGEN, INC., AS TENANT
000 XXXXXX XXXXXX
XXXXXXXXX, XXXXXXXXXXXXX
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TABLE OF CONTENTS
ARTICLE I
REFERENCE DATA....................................................... 1
1.1 Subjects Referred To:.......................................... 1
ARTICLE II
PREMISES AND TERM.................................................... 3
2.1 Premises....................................................... 3
2.2 Term........................................................... 3
ARTICLE III
CONSTRUCTION......................................................... 3
3.1 General Provisions Applicable to Construction ................. 3
3.2 Representatives................................................ 4
3.3 Parking Area and Driveway ..................................... 4
ARTICLE IV
RENT................................................................. 4
4.1 Annual Fixed Rent ............................................. 4
4.2 Additional Rent................................................ 5
4.3 Accounting..................................................... 6
4.4 Payment of Additional Rent..................................... 6
4.5 Utilities...................................................... 7
4.6 Net Lease...................................................... 7
ARTICLE V
LANDLORD'S COVENANTS................................................. 8
5.1 Landlord's Covenants........................................... 8
5.2 Interruptions.................................................. 8
ARTICLE VI
TENANT'S COVENANTS................................................... 9
6.1 Tenant's Covenants............................................. 9
ARTICLE VII
CASUALTY AND TAKING.................................................. 13
7.1 Casualty and Taking............................................ 13
7.2 Reservation of Award........................................... 14
ARTICLE VIII
RIGHTS OF MORTGAGEE.................................................. 14
8.1 Subordination.................................................. 14
8.2 Entry Other Than for Foreclosure............................... 15
(i)
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8.3 Entry for Foreclosure.......................................... 15
8.4 No Prepayment.................................................. 15
8.5 No Release or Termination...................................... 15
8.6 No Modification, etc........................................... 15
8.7 Continuing Offer............................................... 16
8.8 Implementation................................................. 16
ARTICLE IX
DEFAULTS............................................................. 16
9.1 Events of Default.............................................. 16
9.2 Tenant's Obligations After Termination......................... 17
9.3 Landlord's Default............................................. 18
9.4 Administrative Charge for Late Rent............................ 18
ARTICLE X
MISCELLANEOUS........................................................ 18
10.1 Titles......................................................... 18
10.2 Notice of Lease................................................ 18
10.3 Consent........................................................ 18
10.4 Notice......................................................... 18
10.5 Bind and Inure................................................. 19
10.6 No Surrender................................................... 19
10.7 No Waiver, Etc................................................. 19
10.8 No Accord and Satisfaction..................................... 19
10.9 Cumulative Remedies............................................ 20
10.10 Partial Invalidity............................................. 20
10.11 Landlord's Right to Cure Tenant's Default...................... 20
10.12 Estoppel Certificates.......................................... 20
10.13 Waiver of Subrogation.......................................... 21
10.14 Brokerage...................................................... 21
10.15 Unavoidable Delays............................................. 21
10.16 Security Deposit............................................... 22
10.17 Liability of Landlord.......................................... 22
10.18 Parking Lot.................................................... 22
(ii)
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ARTICLE I
REFERENCE DATA
1.1 SUBJECTS REFERRED TO:
Each reference in this Lease to any of the following subjects shall be
construed to incorporate the data stated for that subject in this Section l.l:
Landlord: Xxxxx X. Xxxxxxxx, III, Trustee under the Will of
Xxxxx X. Xxxxxxxx
Xxx Xxxxx Xxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Landlord's
Representative: Xxxxxxx X. Xxxxxx
Tenant: ImmunoGen, Inc.
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Tenant's
Representative: Xxxxxxxx Xxxxxxx
Premises: Premises consisting of the land and a
building containing 15,000 rentable square
feet known as 000 Xxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxxxxxx assessed by the City of
Cambridge as block 67 - lot 48 together with
45 parking spaces in the Parking
Lot.
Parking Lot: The parking area and driveway servicing the
parking area located on 2 parcels of land on
Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx
assessed by the City of Cambridge as block 67
- lots 45 and 46 with a land area of 17,072
square feet.
Building: The building located on the Premises containing
approximately 15,000 rentable square feet.
Term: Three (3) years, commencing on the Lease
Commencement Date and expiring three (3) years
thereafter (the "Term"), except as the Term may be
terminated as provided herein.
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Tenant's Lease
Execution Date: May __, 1997
Lease Year: As defined in Section 2.2.
Lease Commencement
Date: October 1, 1997
Annual Fixed Rent: $322,500.00/year
Additional Rent: Tenant's Proportionate Share of Taxes and
Operating Expenses as defined in Section 4.2.
Tenant's Proportionate
Share: 100%
Permitted Uses: General office and laboratory space for
a medical research business, provided,
however, that the foregoing use is in
compliance with all applicable zoning, land
use, licensing and other laws and
regulations.
Tenant's Public Liability
Insurance, Bodily
Injury Insurance: $1,000,000 each accident.
Tenant's Property Damage
Insurance: $300,000 each accident.
Brokers: Xxxxxxxx & Grew Incorporated
Security Deposit: $53,750.00, subject to the provisions of Section
10.16.
Event of Default: As defined in Section 9.1.
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ARTICLE II
PREMISES AND TERM
2.1 PREMISES
Landlord hereby leases to Tenant, subject to and with the benefit of the
provisions of this Lease, the Premises. Tenant is currently in possession of the
Premises and is fully aware of the existing conditions of the Premises and
agrees to take the same on a strictly "as is" basis without warranty or
representation, express or implied, except as expressly set forth herein.
2.2 TERM
Tenant shall have and hold the Premises for a period commencing with the
Lease Commencement Date and continuing for the Term, unless sooner terminated as
provided in Section 7.l or in Article IX. As used in this Lease, "Lease Year"
shall mean the twelve (12) full calendar months plus the partial calendar month,
if any, commencing on the Lease Commencement Date, and each anniversary thereof,
and expiring twelve (12) calendar months thereafter. If this Lease ends on a day
other than the last day of a Lease Year, as herein defined, the last Lease Year
shall end on the termination date.
ARTICLE III
CONSTRUCTION
3.1 GENERAL PROVISIONS APPLICABLE TO CONSTRUCTION
All construction work in the Premises shall be first approved by Landlord
and shall be done in a good and workmanlike manner and in compliance with all
applicable laws, ordinances, regulations and orders of governmental authority
and insurers of the Building. Either party may inspect the work of the other at
reasonable times, and shall promptly give notice of observed defects. Prior to
the commencement of any construction work at the Premises, Tenant shall: (a)
secure all licenses and permits necessary therefor and provide copies thereof to
Landlord; (b) deliver to Landlord a statement of the names and addresses of all
its contractors and subcontractors and the estimated cost of all labor and
material to be furnished by them; (c) cause each contractor to carry worker's
compensation insurance in statutory amounts covering all of the contractor's and
subcontractor's employees, and comprehensive public liability insurance with
such limits as are set forth in Section 1.1 (all such insurance to be written
insuring Landlord and Tenant as well as the contractors); and (d) deliver to
Landlord certificates of all such insurance. Tenant agrees to pay promptly when
due the entire cost of any work done on the Premises by Tenant, its agents,
employees, or independent contractors, and not to cause or permit any liens for
labor or materials performed or furnished in connection therewith to attach to
the Premises. Tenant agrees to discharge or bond over any such liens which may
so attach and agrees to indemnify Landlord for, from and against any and all
loss, cost or expense, including reasonable attorneys' fees and expenses
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incurred by Landlord as a result of any construction work undertaken by Tenant
at the Premises.
3.2 REPRESENTATIVES
Each party authorizes the other to rely in connection with matters of
design and construction, upon approval and other actions on the party's behalf
by the Representative of the party named in Section 1.1 hereto or any person
hereafter designated in substitution or addition by notice to the party so
relying.
3.3 PARKING AREA AND DRIVEWAY
Tenant shall be entitled to the use of forty-five (45) parking spaces in
the Parking Lot. Landlord covenants to regrade, repave and restripe the Parking
Lot prior to October 1, 1997 subject to Unavoidable Delays (as defined in
Section 10.15 of this Lease).
Landlord reserves the right to impose reasonable rules and controls on the
operation of the Parking Lot provided such rules and controls do not conflict
with the provisions of this Lease.
ARTICLE IV
RENT
4.1 ANNUAL FIXED RENT
Tenant agrees to pay, without any offset or deduction whatever, fixed rent
to Landlord at the Annual Fixed Rent set forth in Section 1.1 beginning with the
Lease Commencement Date, in equal installments of l/l2th of the Annual Fixed
Rent, in advance on the first day of each calendar month included in the Term.
Annual Fixed Rent shall be increased annually in proportion to seventy
percent (70%) of the change in the National Consumer Price Index for all Urban
Consumers (the "Index") published by the United States Bureau of Labor
Statistics, using the month in which occurs the first date of the term as the
base with the first such adjustment to be made for the month beginning October
1, 1998. In the event of a change in Annual Fixed Rent, Landlord shall send a
notice to Tenant setting forth the new fee and Tenant shall pay to the Landlord,
within 15 days of receiving such notice, the additional lease fee owed for the
months which have elapsed since the effective date of such adjustment, and each
installment thereafter shall be paid in the amount as so adjusted until the next
adjustment, if any. In the event that any substantial change is made in the
method of establishing the Index, then the Index shall, if possible, be adjusted
so that the resulting Annual Fixed Rent is that which would have resulted had no
change occurred in the manner of computing such Index. In the event that the
Index (or its successor or substitute Index) is unavailable, or substantially
changed in the manner which makes the adjustment contemplated above and
practical, a reliable governmental or other non-
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partisan publication evaluating substantially the same information theretofore
used in determining the Index shall be used by Landlord in lieu of such Index.
4.2 ADDITIONAL RENT
4.2.1 ADDITIONAL RENT
In order that the Annual Fixed Rent shall be absolutely net to Landlord,
Tenant covenants and agrees to pay either directly or to the Landlord, as
Additional Rent, Tenant's Proportionate Share of Taxes and charges for utilities
and other services with respect to the Premises as hereinafter provided in this
Lease. Landlord shall only be responsible for the payment of costs incurred in
connection with its obligations under Sections 5.1.1. and 5.1.3 of this Lease.
Appropriate prorations (on a daily basis) of Tenant's Proportionate Share of
Taxes shall be made at the beginning and end of the Term for any calendar year
(or other accounting period), only part of which falls within the Term. Tenant's
obligation to pay such amounts as Additional Rent shall survive any termination
of this Lease by lapse or otherwise.
4.2.2 TENANT'S PROPORTIONATE SHARE OF TAXES
For the purposes hereof, "Taxes" shall mean: all taxes, assessments
(special or otherwise), levies, fees and all other government levies,
exactions and charges in the nature of real estate taxes or real estate
special assessments of every kind and nature, general and special, ordinary
and extraordinary, foreseen and unforeseen, which are, with respect to any
annual accounting period used by Landlord pursuant to Section 4.2, imposed
or levied upon, or assessed against the Premises or any portion thereto,
and reasonable expenses of any proceeding for abatement of the foregoing
items included in Taxes; provided, however, that Landlord shall pay any
taxes, assessments, levies, fees, exactions and charges over the longest
period allowed by law, and only the portion required to be paid during any
annual accounting period shall be included in Taxes for such accounting
period. Nothing contained in this Lease shall, however, require Tenant to
pay any franchise, corporate, estate, inheritance, secession, capital, levy
or transfer tax of Landlord, or any net income, profits or revenue tax or
charge upon the rent payable by Tenant under this Lease.
If there is an abatement in Taxes with respect to any portion of an
annual accounting period during the Term with respect to which Tenant paid
Additional Rent, and Landlord receives a tax refund or reimbursement as a
result thereof, then Taxes for such annual accounting period shall be
reduced by the amount of such tax refund or reimbursement after repayment
of Landlord's expenses incurred in connection therewith. Landlord shall
inform Tenant of any action to seek an abatement of Taxes. Additionally,
Landlord agrees that Tenant, after notice and in cooperation with Landlord,
may, at its sole cost and expense, commence any proceedings to contest the
validity or amount of any such tax. Landlord shall cooperate, at the cost
of Tenant, on any such proceeding
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and any such proceeding shall be conducted in accordance with the
provisions of any mortgage encumbering the Premises.
4.3 ACCOUNTING
As of the date of this Lease, Landlord's accounting period is the
calendar year. Landlord shall have the right from time to time to change
the periods of accounting hereunder to any annual period other than a
calendar year, and upon any such change, all items referred to in said
Sections 4.2 and 4.3 shall be appropriately apportioned on a daily basis.
In all statements rendered under Section 4.3, amounts for periods partially
within and partially without the accounting periods shall be appropriately
apportioned on a daily basis. Any costs which are not determinable at the
time of a statement shall be included therein on the basis of Landlord's
reasonable estimate, and Landlord shall render promptly after determination
of such costs a supplemental statement and appropriate adjustment shall be
made according thereto, including any adjustments resulting in a refund to
Tenant due for the award of a tax abatement to Landlord relating to
Tenant's Proportionate Share of Taxes paid during the term of this Lease.
All statements shall be prepared on an accrual basis of accounting.
4.4 PAYMENT OF ADDITIONAL RENT, OPERATING STATEMENTS
Beginning on the Lease Commencement Date and thereafter on the first day of
each month of the Term, Tenant shall make "Estimated Additional Rent Payments"
in equal monthly amounts reasonably determined by Landlord from time to time to
provide in the aggregate, a fund adequate to pay Tenant's Proportionate Share of
Taxes for such calendar year (or other annual accounting period) without need
for adjustment as hereinafter described. If the Term includes a partial calendar
month at its beginning or end, the Estimated Additional Rent Payment for such
partial month shall be pro rated for each day in such partial month within the
Term, and shall be payable on the first day of such partial month during the
Term. Landlord shall provide notice to Tenant of the amount of the Estimated
Additional Rent Payments, and of any increases therein. If the aggregate amount
of Estimated Additional Rent Payments with respect to any calendar year (or
other annual accounting period) exceeds the amount of Tenant's Proportionate
Share of Taxes with respect to such calendar year (or other annual accounting
period), then such excess shall be applied as a credit against the next ensuing
Estimated Additional Rent Payment(s) after Landlord delivers its Operating
Statement for such year (or other accounting period); or, if the Term has then
expired, Landlord shall promptly pay to Tenant such excess.
Within a reasonable period after the end of the first calendar year
occurring within the Term and of each succeeding calendar year during the Term
or fraction thereof at the beginning or end of the Term, Landlord shall render
to Tenant a statement ("Operating Statement") in reasonable detail and prepared
according to generally accepted accounting practices, certified by a
representative of Landlord, showing for the preceding calendar year (or other
accounting period) or fraction thereof, as the case may be (a) actual
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Taxes with respect to such calendar year (or other accounting period), and (b)
Tenant's Proportionate Share of actual Taxes. Landlord shall use reasonable
efforts to deliver the Operating Statement within one hundred twenty (120) days
after the end of each calendar year (or other accounting period). Any items
which are not determinable at the time an Operating Statement is rendered shall
be included on the basis of Landlord's reasonable estimate and with respect
thereto Landlord shall promptly after determination, render a supplemental
Operating Statement, and appropriate adjustment shall be made according thereto.
Within thirty (30) days after the date of delivery of each such Operating
Statement, Tenant shall pay to Landlord as additional rent, the amount of
Tenant's Proportionate Share of Operating Expenses and Taxes shown thereon for
the preceding calendar year (or other accounting period) or fraction thereof,
less the aggregate amount of any Estimated Additional Rent Payments previously
paid as hereinafter provided with respect to said calendar year (or other
accounting period) or fraction thereof.
Tenant or its representatives shall have the right, upon reasonable prior
notice, to examine Landlord's books and records with respect to items in the
Operating Statement during normal business hours at Landlord's offices where
such books and records are maintained within sixty (60) days following the
delivery by Landlord to Tenant of such Operating Statement. Within such sixty
(60) day period, Tenant may file written exception to any items of expense,
provided, however, that nothing herein shall be deemed to afford Tenant any
right to withhold any disputed payment claimed by Landlord to be due from Tenant
to Landlord, and Tenant shall promptly make all such payments as aforesaid. All
information and calculations set forth in the Operating Statement shall be
binding upon Tenant and no longer subject to challenge or dispute following such
sixty (60) day period unless and to the extent Tenant shall have timely disputed
the same and such dispute shall not have been resolved. If it is determined that
Landlord overcharged Tenant, then Landlord shall promptly refund any overcharge
to Tenant.
4.5 UTILITIES
Electricity and all other utilities for Tenant's operations in the Premises
shall be separately metered. The cost of such utility usage shall be billed
directly to and paid directly by Tenant.
4.6 NET LEASE
It is understood and agreed that this Lease is a net lease and that
the Annual Fixed Rent is absolutely net to Landlord excepting only those matters
which Landlord is required to pay under this Lease.
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ARTICLE V
LANDLORD'S COVENANTS
5.1 LANDLORD'S COVENANTS
Landlord covenants:
5.1.1 except as otherwise provided in Article VII, to make such
repairs and/or replacements to the boiler, roof, foundation, other structural
components, exterior walls, floor slabs and to the underground storage tank as
may be necessary to keep them in serviceable condition unless such repairs
and/or replacements are due to the negligence or neglect of Tenant, its agents,
contractors or employees.
5.1.2 that Landlord has the right to make this Lease and that Tenant,
on paying the rent and performing its obligations under this Lease, shall
peacefully and quietly have, hold and enjoy the Premises throughout the Term,
subject to all terms and provisions hereof.
5.1.3 that Landlord shall insure the Premises for full replacement
value under an "all-risk" insurance policy, with such reasonable deductibles as
a prudent owner of similar properties would obtain.
5.2 INTERRUPTIONS
Except if due to the gross negligence or willful misconduct of Landlord or
its agents, contractors or employees, Landlord shall not be liable to Tenant for
any compensation or reduction of rent by reason of inconvenience or annoyance or
for loss of business arising from power losses and shortages, the necessity of
Landlord's entering the Premises for any of the purposes in this Lease
authorized, or for repairing the Premises or any portion of the Building or Lot,
however the necessity may occur; provided, however, that Landlord shall use
reasonable efforts to avoid interference with Tenant's use and operations at the
Premises. In case Landlord is prevented or delayed from making any repairs,
alterations or improvements, or from furnishing any services or performing any
other covenant or duty to be performed on Landlord's part under this Lease by
reason of any cause reasonably beyond Landlord's control, including, without
limitation, the causes set forth in Section 10.15, Landlord shall not be liable
to Tenant therefor, nor, except as expressly otherwise provided in Section 7.l,
shall Tenant be entitled to any abatement or reduction of rent by reason
thereof, nor shall the same give rise to a claim in Tenant's favor that such
failure constitutes actual or constructive, or total or partial, eviction from
the Premises.
Landlord reserves the right to stop any service or utility system when
necessary by reason of accident or emergency, until necessary repairs have been
completed; provided, however, that in each instance of stoppage, Landlord shall
exercise reasonable diligence to eliminate the cause thereof, and except in case
of emergency repairs, Landlord will give
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Tenant reasonable advance notice of any contemplated stoppage and will use
reasonable efforts to avoid inconvenience to Tenant by reason thereof.
ARTICLE VI
TENANT'S COVENANTS
6.1 TENANT'S COVENANTS
Tenant covenants during the Term and such further time as Tenant occupies
any part of the Premises:
6.1.1 to pay when due all Annual Fixed Rent, Additional Rent, all
taxes which may be imposed on Tenant's personal property on the Premises
(including without limitation, Tenant's fixtures and equipment) regardless
to whomever assessed and all other charges and sums due under this Lease.
6.1.2 except as otherwise provided in Article VII and Section 5.1, to
keep the Premises in good order, repair and in a first class condition,
including, without limitation, periodic cleaning of the Premises and
plowing of the Parking Area at its sole cost and expense, reasonable wear,
and damage by fire and casualty and eminent domain only excepted, and at
the expiration or termination of this Lease peaceably to yield up the
Premises and all changes and additions therein (except Tenant's removable
property) in such order, repair and condition, first removing all goods,
effects, and fixtures of Tenant including Tenant's removable property and
any of Tenant's signage which may be attached to the Building or to the
Premises, and repairing all damage caused by such removal and restoring the
Premises (or the Building, as required) and leaving them clean and neat. If
Tenant fails to surrender possession of the Premises in the condition
required under the terms of this Lease (including, but not limited to, the
removal of signage) the Tenant shall be deemed a tenant-at-sufferance and
hereby agrees that the fair rental value for the Premises for each month
after the expiration of the term shall be the sum of (x) one hundred fifty
percent (150%) of the then-applicable Annual Fixed Rent, and (y) all
Additional Rent and other charges and sums due under this Lease. Acceptance
by Landlord of such payments shall not constitute a consent to Tenant's
holding over nor result in a renewal of Tenant's rights to occupy the
Premises. All payments during any holdover period shall be in addition to,
and shall not affect or limit, Landlord's right of reentry, or any other
rights of Landlord under this Lease or as provided at law or in equity.
6.1.3 not to injure or deface the Premises nor to permit in the
Premises any auction sale, or nuisance, or the emission from the Premises
of any reasonably objectionable noise or odor, nor to use or devote the
Premises or any part thereof for any purpose other than the Permitted Uses,
nor any use thereof which is contrary to law or ordinance (including,
without limitation, the Cambridge Zoning Ordinance) or which is liable to
invalidate or increase the premiums for any insurance on the Building
(unless
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Tenant pays such increase) or its contents or is liable to render necessary
any alteration or addition to the Building.
6.1.4 not without prior consent of Landlord to permit the painting or
placing of any signs or the placing of any curtains, blinds, shades,
awnings, aerials or flagpoles, or the like, visible from the atriums,
elevator lobby or from outside the Premises; and to comply with all
reasonable rules and regulations hereafter made by Landlord, of which
Tenant has been given notice, for the care and use of the Premises and
their facilities and approaches.
6.1.5 to keep the Premises equipped with all safety appliances
required by law or ordinance or any other regulation of any public
authority because of any use made by Tenant other than normal office use,
and to procure all licenses and permits so required because of such use
and, if requested by Landlord, to do any work so required because of such
use, it being understood that the foregoing provisions shall not be
construed to broaden in any way the Permitted Uses.
6.1.6 not without prior consent of Landlord to assign, mortgage,
pledge or otherwise transfer this Lease or to make any sublease, or to
permit occupancy of the Premises or any part thereof by anyone other than
Tenant. In connection with any request by Tenant for Landlord's consent to
the assignment of this Lease or subletting of all or any part of the
Premises, Tenant shall submit to Landlord in writing (i) the name of the
proposed assignee or subtenant, (ii) such information as to the nature of
the business of the proposed assignee or subtenant, the financial
responsibility and standing of the proposed assignee or subtenant as
Landlord may reasonably require and such further information as Landlord
may request, and (iii) all of the terms and provisions upon which the
proposed assignment or subletting is to be made. Upon receipt from Tenant
of such request and information, Landlord shall have an option to be
exercised in writing within thirty (30) days after its receipt from Tenant
of such request and information if the request is to assign the Lease or to
sublet all of the Premises, to cancel or terminate this Lease, or, if the
request is to sublet a portion of the Premises only, to cancel and
terminate this Lease with respect to such portion, in each case as of the
date set forth in Landlord's notice of exercise of such option, which shall
be not less than sixty (60) nor more than one hundred and twenty (120) days
following the giving of such notice. In the event Landlord shall exercise
such option, Tenant shall surrender possession of the entire Premises, or
the portion which is the subject of the option, as the case may be, on the
date set forth in such notice in accordance with the provisions of this
Lease relating to surrender of the Premises at the expiration of the Lease
Term.
If this Lease shall be canceled as to a portion of the Premises only,
the Annual Fixed Rent and applicable items of Additional Rent shall
thereafter be abated proportionately according to the ratio that the number
of square feet in the portion of the space surrendered bears to the
Rentable Floor Area of Tenant's Space; as additional charges and sums due
under the Lease, Tenant shall reimburse Landlord promptly for
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reasonable legal and other reasonable expenses incurred by Landlord in
connection with any request by Tenant for consent to assignment or
subletting.
In the event Landlord shall not exercise its option to cancel this
Lease pursuant to the foregoing provisions, Landlord shall not unreasonably
withhold its consent to the requested assignment or subletting, provided
that the terms and provisions of such assignment or subletting shall
specifically make this Section 6.1.6 applicable to such assignee or
sublessee so that Landlord shall have against the assignee or sublessee all
rights with respect to any further assignment and subletting which are set
forth herein; no assignment or subletting shall affect the continuing
primary liability of Tenant (which, following assignment, shall be joint
and several with the assignee); no consent to any of the foregoing in a
specific instance shall operate as a waiver in a subsequent instance; and
no assignment shall be binding upon Landlord or any of Landlord's
mortgagees, unless Tenant shall deliver to Landlord an instrument in
recordable form which contains a covenant of assumption of all the
obligations of this Lease by the assignee running to Landlord and all
persons claiming by, through or under Landlord; such instrument of
assumption shall not release or discharge assignee from its liability as
Tenant hereunder. In the event Landlord shall not exercise its option to
cancel this Lease pursuant to the foregoing provisions, Landlord shall be
entitled to receive all amounts received by Tenant in excess of the Annual
Fixed Rent and Additional Rent reserved in this Lease applicable to the
space being so assigned or sublet after deduction of Tenant's actual costs
associated with the assignment or sublease.
Notwithstanding the foregoing, no consent shall be required for the
assignment of the lease to a wholly owned subsidiary of Tenant or a
purchaser of all or substantially all of Tenant's assets or to an entity
which controls, is controlled by or is under common control with Tenant,
provided in each case the resulting entity assumes all of Tenant's
obligations and agrees to be bound by all of the terms and conditions of
this Lease.
6.1.7 to defend, with counsel approved by Landlord, or, in the case of
actions defended by Tenant's insurer, by counsel approved by such insurer,
save harmless, and indemnify Landlord from any liability or injury, loss,
accident or damage to any person or property, and from any claims, actions,
proceedings and expenses and costs in connection therewith (including
without limitation reasonable counsel fees), (i) arising from the willful
act or negligence of Tenant or from any use made or thing done or occurring
on the Premises not due to the willful act or negligence of Landlord or
willful act or gross negligence of its agents, contractors or employees or
(ii) resulting from the failure of Tenant to perform and discharge its
covenants and obligations under this Lease.
6.1.8 to maintain public liability insurance in the Premises in the
amounts which shall, at the beginning of the Term, be at least equal to the
limits set forth in Section l.l, and, from time to time during the Term
shall be for such higher limits, if any, as are
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customarily carried in the area in which the Premises are located on
property similar to the Premises and used for similar purposes and to
furnish Landlord with the certificates thereof.
6.1.9 to keep all Tenant's employees working in the Premises covered
by worker's compensation insurance in statutory amounts and to furnish
Landlord with certificates thereof.
6.1.10 to permit Landlord and Landlord's agents to examine the
Premises at reasonable times, if Landlord shall so elect, to make any
repairs or replacements Landlord may deem necessary to address or avert an
emergency, and to remove, at Tenant's expense, any changes, additions,
signs, curtains, blinds, shades, awnings, aerials, flagpoles, or the like,
not consented to in writing pursuant to Section 6.1.4, and to show the
Premises to prospective tenants of the Premises during the twelve (12)
months preceding expiration of the Term (or earlier termination date if
applicable) and to prospective purchasers and mortgagees and prospective
tenants of the Premises at all reasonable times upon reasonable telephonic
notice to Tenant.
6.1.11 not to place a load upon the Premises exceeding an average rate
of eighty (80) pounds of live load per square foot of floor area.
6.1.12 all the furnishings, fixtures, equipment, effects and property
of every kind, nature and description of Tenant and of all persons claiming
by, through or under Tenant which, during the continuance of this Lease or
any occupancy of the Premises by Tenant or anyone claiming under Tenant,
may be on the Premises or elsewhere in the Building, shall be at the sole
risk and hazard of Tenant, and if the whole or any part thereof shall be
destroyed or damaged by fire, water or otherwise, or by the leakage or
bursting of 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 Landlord, unless caused by the gross negligence or willful
misconduct of Landlord or its agents, employees or contractors.
6.1.13 not to suffer or permit any liens to stand against the Premises
by reason of work, labor services or materials done for or at the request
of Tenant. Tenant shall cause any such liens to be discharged or bonded
over immediately.
6.1.14 in case Landlord shall, without any fault on its part, be made
party to any litigation commenced by or against Tenant or by or against any
parties in possession of the Premises or any party thereof claiming under
Tenant, to pay, as additional rent, all costs, including without
limitation, reasonable counsel fees incurred by or imposed upon Landlord in
connection with such litigation, and as additional rent, also to pay all
such costs and fees incurred by Landlord in connection with the successful
enforcement by Landlord of any obligations of Tenant under this Lease.
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6.1.15 to pay on demand the Landlord's expenses, including reasonable
attorneys' fees and expenses, incurred in enforcing the obligation of
Tenant under this Lease or in curing any default by Tenant under this
Lease.
6.1.16 to pay directly to the provider of the service, all separately
metered charges for electricity and all charges for janitorial services
snowplowing and other services furnished to the Premises.
6.1.17 to comply with all laws, ordinances, rules, regulations and
governmental and provisional guidelines with respect to the storage and
disposal of medical waste and/or hazardous materials, and to cause any
medical waste and/or hazardous materials generated by the Tenant to be
removed from the Premises, Building and Lot in conformity with all such
laws, ordinances, rules, regulations and guidelines at Tenant's sole cost
and expense.
6.1.18 With respect to Tenant's breach of any covenant contained in
this Article 6, Tenant agrees to indemnify and hold Landlord harmless from
any liability or injury, loss, accident or damage and from any claims,
actions, proceedings and expenses and costs in connection therewith
relating to such breach.
ARTICLE VII
CASUALTY AND TAKING
7.1 CASUALTY AND TAKING
In case during the Term all or any substantial part of the Premises are
damaged materially by fire or other casualty or by action of public or other
authority in consequence thereof, or are taken by eminent domain or Landlord
receives compensable damage by reason of anything lawfully done in pursuance of
public or other authority, this Lease shall terminate at Landlord's or Tenant's
election, which may be made notwithstanding Landlord's entire interest may have
been divested, by notice given to the other within sixty (60) days after receipt
by each party of notice of the occurrence of the event giving rise to the
election to terminate, which notice shall specify the effective date of
termination. Tenant shall also have the right to terminate as described above,
(a) in the event of damage to or taking of the Premises which renders Tenant
unable to conduct its business in the Premises and which cannot be restored
within one hundred twenty (120) days, or (b) in the event of damage to the
Premises in the last ninety (90) days of the Term. The effective date of any
termination by Landlord or Tenant under this Section shall be not less than
fifteen (l5) nor more than thirty (30) days after the date of such notice of
termination. In case of any such damage or taking, Landlord shall notify Tenant
within thirty (30) days after the occurrence thereof of Landlord's estimate of
the time needed to do the construction work necessary to put the Premises or
such remainder in proper condition for use and occupancy, or of the percentage
of the Building, Premises taken.
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If in any such case the Premises are rendered unfit for use and occupation
by the Tenant and the Lease is not so terminated, Landlord shall use due
diligence (following the expiration of all periods in which either party may
terminate this Lease pursuant to the foregoing provisions of this Section 7.l)
to put the Premises, or in case of a taking, what may remain thereof (excluding
any items installed or paid for by Tenant which Tenant may be required to remove
pursuant to Section 3.l), into proper condition for Tenant's use and occupation,
and a just proportion of the Annual Fixed Rent and Additional Rent due
hereunder, according to the nature and extent of the injury, shall be abated
until the Premises or such remainder shall have been put by Landlord in such
condition. In case of a taking which permanently reduces the area of the
Premises, a just proportion of the Annual Fixed Rent and Additional Rent shall
be abated for the remainder of the Term.
7.2 RESERVATION OF AWARD
Landlord reserves to itself any and all rights to receive awards made for
damages to the Premises and the leasehold hereby created, or any one or more of
them, accruing by reason of exercise of eminent domain or by reason of anything
lawfully done in pursuance of public or other authority. Tenant hereby releases
and assigns to Landlord all Tenant's rights to such awards, and covenants to
deliver such further assignments and assurances thereof as Landlord may from
time to time request hereby. It is agreed and understood, however, that Landlord
does not reserve to itself, and Tenant does not assign to Landlord, any damages
payable for (i) trade fixtures, furniture or equipment owned and installed by
Tenant or anybody claiming under Tenant at its own expense, or fixtures or items
the removal of which is required or permitted by any agreement given pursuant to
Section 3.l, (ii) relocation expenses allocated or awarded to Tenant or
recoverable by Tenant from such authority in a separate action or (iii)
leasehold improvements which were directly paid for by Tenant (i.e. not paid for
by Landlord and reimbursed over time by Tenant).
ARTICLE VIII
RIGHTS OF MORTGAGEE
8.1 SUBORDINATION
The Lease shall be subject and subordinate to any mortgage on the Premises
or any part thereof, now or at any time hereafter in effect, and to all advances
made thereunder and to the interest thereon and all renewals, replacements and
extensions thereof provided the holder of the mortgage agrees in writing to
recognize the rights of Tenant under this Lease, unless the holder of such
mortgage elects by notice to Tenant to have this Lease superior to its mortgage.
Any such mortgage to which the Lease shall be subordinated may contain such
terms, provisions and conditions as the holder deems usual or customary. The
Premises or Building, or both, are separately and together hereinafter in this
Article VIII referred to as "the mortgaged premises". The word "mortgagee" as
used in this Lease shall include the holder for the time being whenever the
context permits.
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8.2 ENTRY OTHER THAN FOR FORECLOSURE
Upon entry and taking possession of the mortgaged premises for any purpose
other than foreclosure, and during the period of such possession, the holder of
a mortgage shall have all rights of Landlord and shall have the duty to perform
all of Landlord's obligations under this Lease. No such holder shall be liable
to perform any other of Landlord's covenants and obligations arising under this
Lease prior to its taking possession.
8.3 ENTRY FOR FORECLOSURE
Except as otherwise provided in Section 8.2 hereof, no such holder of a
mortgage shall be liable, either as mortgagee or as holder of a collateral
assignment of this Lease, to perform, or be liable in damages for failure to
perform, any of the obligations of Landlord unless and until such holder shall
enter and take possession of the mortgaged premises for the purpose of
foreclosing a mortgage. Upon entry for the purpose of foreclosing a mortgage or
upon conveyance pursuant to a deed in lieu of foreclosure, such holder shall be
liable to perform all of the subsequent obligations of Landlord, subject to the
provisions of Section 8.6 and subject to and with the benefit of the provisions
of Section l0.5.
8.4 NO PREPAYMENT
No Annual Fixed Rent, Additional Rent, or any other charge or sum under the
Lease shall be paid more than ten (10) days prior to the due dates thereof and
payments made in violation of this provision shall (except to the extent that
such payments are actually received by a mortgagee in possession or in the
process of foreclosing its mortgage) be a nullity as against such mortgagee and
Tenant shall be liable for the amount of such payments to such mortgagee.
8.5 NO RELEASE OR TERMINATION
No act or failure to act on the part of Landlord which would entitle Tenant
under the terms of this Lease, or by law, to be relieved of Tenant's obligations
hereunder or to terminate this Lease, shall result in a release or termination
of such obligations or a termination of this Lease unless (i) Tenant shall have
first given written notice of Landlord's act or failure to act to Landlord's
mortgagees of record, if any, specifying the act or failure to act on the part
of Landlord which could or would give basis to Tenant's rights; and (ii) such
mortgagees, after receipt of such notice, have failed or refused to commence a
cure of the condition complained of within a reasonable time thereafter; but
nothing contained in this Section 8.5 shall be deemed to impose any obligation
on any such mortgagee to correct or cure any such condition. "Reasonable time"
as used above means and includes a reasonable time to obtain possession of the
mortgaged premises, if the mortgagee elects to do so, and a reasonable time to
correct or cure the condition if such condition is determined to exist.
8.6 NO MODIFICATION, ETC.
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No assignment of this Lease and no agreement to make or accept any
surrender, termination or cancellation of this Lease and no agreement to modify
so as to reduce the rent, change the Term, or otherwise materially change the
rights of Landlord under this Lease, or to relieve Tenant of any obligations or
liability under this Lease, shall be valid unless consented to in writing by
Landlord's mortgagees of record, if any.
8.7 CONTINUING OFFER
The covenants and agreements contained in this Lease with respect to the
rights, powers and benefits of a mortgagee (particularly, without limitation
thereby, the covenants and agreement contained in this Article VIII) constitute
a continuing offer to any person, corporation or other entity, which by
accepting or requiring an assignment of this Lease or by entry or foreclosure
assumes the obligations herein set forth with respect to such mortgagee; such
mortgagee is hereby constituted a party to this Lease as an obligee hereunder to
the same extent as though its name were written hereon as such, and such
mortgagee shall be entitled to enforce such provisions in its own name.
8.8 IMPLEMENTATION
Tenant agrees on request of Landlord to execute and deliver from time to
time any agreement which may reasonably be deemed necessary to implement the
provisions of this Article VIII.
ARTICLE IX
DEFAULTS
9.1 EVENTS OF DEFAULT
If (a) Tenant shall fail to pay Annual Fixed Rent or Additional Rent or any
other charge or sum due under the Lease within ten (10) business days after
written notice of Tenant's failure to pay on the date when due (or if during any
twelve month period in which Tenant has previously failed two times to pay
Annual Fixed Rent or Additional Rent or any other charge or sum when due, Tenant
thereafter fails to pay Annual Fixed Rent or Additional Rent or any other charge
or sum on the date when due); or (b) if Tenant shall fail to perform any of
Tenant's other covenants, agreements or obligations hereunder, and such failure
shall continue for more than thirty (30) days after written notice thereof from
Landlord to Tenant (or, if such failure is not susceptible of cure within thirty
(30) days, Tenant fails to pursue diligently and continuously such cure to
completion); or (c) if any assignment shall be made by Tenant or any guarantor
of Tenant for the benefit of creditors; or (d) if Tenant's leasehold interest
shall be taken on execution; or (e) if a lien or other involuntary encumbrance
is filed against Tenant's leasehold interest or Tenant's other property,
including said leasehold interest, and is not discharged or bonded over within
thirty (30) days after Tenant receives notice thereof; or (f) if a petition is
filed by Tenant or any guarantor of Tenant for adjudication as a bankrupt, or
for reorganization or an arrangement under any provision of the Bankruptcy Act
as then in force
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and effect; or (g) if an involuntary petition under any of the provisions of
said Bankruptcy Act is filed against Tenant or any guarantor of Tenant and such
involuntary petition is not dismissed within sixty (60) days thereafter, then,
and in any of such cases (each such case being deemed an "Event of Default"),
Landlord and the agent and servants of Landlord lawfully may, in addition to and
not in derogation of any remedies for any preceding breach of covenant,
immediately or at any time thereafter and without demand or notice and with
process of law (forcibly, if necessary) enter into and upon the Premises or any
part thereof in the name of the whole or mail a notice of termination addressed
to Tenant in accordance with Section 10.4, and repossess the same as Landlord's
former estate and expel Tenant and those claiming through or under Tenant and
remove its and their effects (forcibly, if necessary) without being deemed
guilty of any manner of trespass and without prejudice to any remedies which
might otherwise be used for arrears of rent or prior breach of covenant, and
upon such entry or mailing as aforesaid, this Lease shall terminate.
9.2 TENANT'S OBLIGATIONS AFTER TERMINATION
In the event that this Lease is terminated due to an Event of Default,
Tenant covenants to pay forthwith to Landlord, as compensation, the total
rent reserved for the residue of the Term discounted over the balance of
the lease term at a rate of nine percent (9%). In calculating the rent
reserved there shall be included, in addition to the Annual Fixed Rent, all
Additional Rent and all charges and sums due under the Lease, the value of
all other considerations agreed to be paid or performed by Tenant for said
residue. In calculating the amounts to be paid by Tenant hereunder, Tenant
shall be credited with the net proceeds of any rent obtained by Landlord by
reletting the Premises, after deducting all Landlord's actual expenses in
connection with such reletting, including, without limitation, all
repossession costs, brokerage commissions, fees for legal services and
expenses of preparing the Premises for such reletting. Any action of
Landlord in accordance with this Section 9.2 or any failure of Landlord to
relet or collect rent after reletting shall not operate or be construed to
release or reduce Tenant's liability as aforesaid, provided, however, that
Landlord hereby agrees to exercise commercially reasonable good faith
efforts to relet the Premises and otherwise to mitigate damages arising out
of an Event of Default.
Nothing contained in this Lease shall limit or prejudice the right of
Landlord to prove for and obtain in proceedings for bankruptcy or insolvency, by
reason of the termination of this Lease, an amount equal to the maximum allowed
by any statute or rule of law in effect at the time when, and governing the
proceedings in which, the damages are to be proved, whether or not the amount be
greater than, equal to, or less than the amount of the loss or damages referred
to above.
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9.3 LANDLORD'S DEFAULT
Landlord shall not be deemed to be in default hereunder unless its default
shall continue for thirty (30) days, or such additional time as is reasonably
required to correct its default, provided that Landlord shall begin such
correction within such thirty (30) day period and thereafter prosecute the
curing of such default to completion with due diligence after written notice
thereof has been given by Tenant to Landlord specifying the nature of the
alleged default. Landlord shall have the right to dispute Tenant's allegation of
default. In no event hereunder shall Tenant be entitled to a right of set-off.
In the event of Landlord's default, Tenant shall be obligated to continue to pay
all rent due hereunder in full.
9.4 ADMINISTRATIVE CHARGE FOR LATE RENT
If any payment of Annual Fixed Rent or Additional Rent or any other charges
and sums is in default as provided in Section 9.1 hereof, Tenant shall pay
Landlord as late rent, upon demand, an amount equal to three percent (3%) of the
amount in default as compensation for Landlord's extra administrative costs in
investigating and collecting such late rent.
ARTICLE X
MISCELLANEOUS
10.1 TITLES
The titles of the Articles are for convenience only and are not to be
considered in construing this Lease.
10.2 NOTICE OF LEASE
This Lease shall not be recorded; provided however that at the request of
either party hereto, both parties shall execute and deliver a notice of this
Lease in form appropriate for recording or registration. If this Lease is
terminated before the Term expires, upon request of either party, each party
shall execute and deliver an instrument in such form acknowledging the date of
termination.
10.3 CONSENT
Except where otherwise provided herein, whenever any approval, consent,
authorization or the like by Landlord or Tenant is expressly required by this
Lease, the approval, consent, authorization or the like shall not be delayed or
withheld unreasonably.
10.4 NOTICE
Whenever any notice, approval, consent, request or election is given or
made pursuant to this Lease it shall be in writing. Communications and payments
shall be addressed if to
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Landlord at Landlord's Address as set forth in Section 1.1 or at such other
address as may have been specified by prior notice to Tenant, and if to Tenant,
at Tenant's Address as set forth in Section 1.1 or at such other address as may
have been specified by prior notice to Landlord. Any communication or notice so
addressed shall be deemed duly served if mailed by registered or certified mail,
return receipt requested; delivered by hand; or sent by overnight delivery
service. Notice shall be deemed effective on the earlier of the date of actual
delivery as shown by the return receipt or forty eight (48) hours after notice
is sent in accordance with this Section 10.4.
10.5 BIND AND INURE
The obligations of this Lease shall run with the land, and this Lease shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, except that only the original Landlord named
herein shall be liable for obligations accruing before the beginning of the
Term, and thereafter the original Landlord named herein and each successive
owner of the Premises shall be liable only for the obligations accruing during
the period of its ownership. Whenever the Premises are owned by a partnership,
no general partner or limited partner of such partnership shall have any
personal liability hereunder.
10.6 NO SURRENDER
The delivery of keys to any employee of Landlord or to Landlord's agent or
any employee thereof shall not operate as a termination of this Lease or a
surrender of the Premises.
10.7 NO WAIVER, ETC.
The failure of Landlord or of Tenant to seek redress for violation of, or
to insist upon the strict performance of, any covenant or condition of this
Lease or any of the rules and regulations referred to in Section 6.1.4 shall not
be deemed a waiver of such violation nor prevent a subsequent act which would
have originally constituted a violation, from having all the force and effect of
an original violation. The failure of Landlord to enforce any of said rules and
regulations against any other tenant in the Building shall not be deemed a
waiver of any such rules or regulations. The receipt by Landlord of Annual Fixed
Rent or Additional Rent with knowledge of the breach of any covenant of this
Lease shall not be deemed to be a waiver of such breach by Landlord or by
Tenant, unless such waiver is in a writing signed by the party so waiving. No
consent or waiver, express or implied, by Landlord or Tenant to or of any breach
of any agreement or duty shall be construed as a waiver or consent to or of any
other breach of the same or any other agreement or duty.
10.8 NO ACCORD AND SATISFACTION
No acceptance by Landlord of a sum lesser than the Annual Fixed Rent,
Additional Rent or other charges and sums then due shall be deemed to be other
than on account of the earliest
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installment of such rent due, nor shall any endorsement or statement on any
check or any letter accompanying any check or payment as rent be deemed an
accord and satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance of such installment or
pursue any other remedy provided for in this Lease.
10.9 CUMULATIVE REMEDIES
The specific remedies to which Landlord or Tenant may resort under the
terms of this Lease are cumulative and are not intended to be exclusive of any
other remedies or means of redress to which either of them may be lawfully
entitled in case of any breach or threatened breach by the other party of any
provisions of this Lease. In addition to the other remedies provided in this
Lease, Landlord and Tenant shall be entitled to the restraint by injunction of
the violation or attempted or threatened violation of any of the covenants,
conditions or provisions of this Lease, or to a decree compelling specific
performance of any such covenants, conditions or provisions.
10.10 PARTIAL INVALIDITY
If any term of this Lease, or the application thereof to any person or
circumstances, shall to any extent be invalid or unenforceable, the remainder of
this Lease, or the application of such term to persons or circumstances other
than those as to which it is invalid or unenforceable, shall not be affected
thereby, and each term of this Lease shall be valid and enforceable to the
fullest extent permitted by law.
10.11 LANDLORD'S RIGHT TO CURE TENANT'S DEFAULT
In the event of an Event of Default on the part of Tenant hereunder,
Landlord shall have the right, but shall not be obligated, to enter upon the
Premises and to cure such Event of Default notwithstanding the fact that no
specific provisions for such substituted performance by Landlord is made in this
Lease with respect to such Event of Default. Except in case of emergency, these
rights shall be exercised only after ten ( l0) days' prior written notice from
Landlord to Tenant of Landlord's intention to do so. In performing such cure,
Landlord may make any payment of money or perform any other act. All sums so
paid by Landlord (together with interest at the rate of eighteen percent (18%)
per annum) and all necessary incidental out-of-pocket costs and expenses in
connection with the performance of any such act by Landlord shall be deemed to
be charges and sums due under this Lease and shall be payable to Landlord
immediately on demand. Landlord may exercise the foregoing rights without
waiving any other of its rights or releasing Tenant from any of its obligations
under this Lease.
10.12 ESTOPPEL CERTIFICATES
Both parties agree from time to time, upon not less than fifteen (15) days'
prior written request by the other party, to execute, acknowledge and deliver to
the other party a statement in writing certifying, to the extent true, that this
Lease is unmodified and in full force and
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effect and that Tenant has no defenses, offsets or counterclaims against its
obligations to pay the Annual Fixed Rent, Additional Rent and other charges and
sums due under the Lease and to perform its other covenants under this Lease and
that there are no uncured defaults of Landlord or Tenant under this Lease (or,
if there have been any modifications, that the same is in full force and effect
as modified and stating the modifications and, if there are any defenses,
offsets, counterclaims or defaults, setting them forth in reasonable detail),
and the dates to which the Annual Fixed Rent, Additional Rent and other charges
and sums have been paid. Any such statement delivered pursuant to this Section
10.12 may be relied upon by any prospective purchaser or mortgagee of the
Premises or any prospective assignee of any mortgagee of the Premises.
10.13 WAIVER OF SUBROGATION
Any insurance carried by either party with respect to the Premises and
property therein or occurrences thereon shall, if the other party so requests
and if it can be so written without additional premium, or with an additional
premium which the other party agrees to pay, include a clause or endorsement
denying to the insurer rights of subrogation against the other party to the
extent rights have been waived by the insured prior to occurrence of injury of
loss. Each party, notwithstanding any provisions of this Lease to the contrary,
hereby waives any rights of recovery against the other for injury or loss due to
hazards covered by insurance containing such clause of endorsement to the extent
of the indemnification received thereunder.
10.14 BROKERAGE
Tenant and Landlord represent and warrant to the other that such
representing party has dealt with no broker in connection with this transaction
other than the Broker named in Section 1.1. In the event of a breach of such
representation, the misrepresenting party agrees to defend, indemnify and save
the other party from and against any and all claims for a commission arising out
of this Lease, other than from the Broker.
10.15 UNAVOIDABLE DELAYS
Except as otherwise set forth herein, this Lease and the obligations of
Tenant to pay rent hereunder and the obligations of Landlord or Tenant,
respectively, to perform all of the other covenants and agreements hereunder on
the part of Landlord or Tenant, respectively, to be performed shall in no way be
affected, impaired or excused because Landlord is unable to fulfill any of its
obligations under this Lease or to supply or is delayed in supplying any service
expressly or impliedly to be supplied, or is unable to make, or is delayed in
making any repair, additions, alterations, or decorations or is unable to supply
or is delayed in supplying any equipment or fixtures if Landlord is prevented or
delayed from so doing by any cause beyond Landlord's or Tenant's reasonable
control, including without limitation, strike or labor troubles, delays in
obtaining governmental approvals, inability or delays in obtaining labor or
materials, government pre-emption in connection with a National Emergency or by
reason of any rule, order or regulation of any department or subdivision thereof
or by reason of
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conditions of supply and demand which have been or are affected by war or other
emergency but excluding financial incapability of Landlord. Such delays shall
hereinbefore and hereinafter be referred to as "Unavoidable Delays."
10.16 SECURITY DEPOSIT
Upon the execution of this Lease, the Tenant shall pay to the Landlord the
amount of $53,750.00 which shall be held as security for the Tenant's
performance, as herein provided, and refunded to the Tenant in full at the end
of the Term, provided that the Tenant has fully performed all of Tenant's
obligations hereunder.
Upon an Event of Default, then Landlord may, at its option and without
prejudice to any other remedy which Landlord may have on account thereof,
appropriate and apply said entire Security Deposit or so much thereof as may be
necessary to compensate Landlord toward the payment of Annual Fixed Rent,
Additional Rent or other sums for loss or damage sustained by Landlord due to
such breach on the part of Tenant; and Tenant shall forthwith upon demand
restore said security to the original sum deposited. In the event of bankruptcy
or other creditor-debtor proceedings against Tenant, the Security Deposit shall
be deemed to be applied first to the payment of rents and other charges due
Landlord for all periods prior to the filing of such proceedings.
10.17 LIABILITY OF LANDLORD
Tenant specifically agrees to look solely to Landlord's then equity
interest in the Premises at the time owned, for recovery of any judgment from
Landlord; it being specifically agreed that neither Landlord (original or
successor) nor any partner of Landlord (nor any principal of any such partners)
shall ever be personally liable for any such judgment, or for the payment of any
monetary obligation to Tenant. In no event shall either party ever be liable to
the other for any loss of business or any other indirect or consequential
damages.
10.18 PARKING LOT
In accordance of the provisions of this Lease, Tenant has the right to use
45 spaces in the Parking Lot. At the present time Landlord has not granted
anyone else the right to use parking spaces in the Parking Lot and accordingly,
Tenant shall be responsible for all maintenance and repair with respect to the
Parking Lot. In the event that Landlord provides Tenant with written notice that
Landlord is granting another party the right to use parking spaces in the
Parking Lot in excess of the 45 parking spaces leased by Tenant, Landlord shall
be responsible for the maintenance and repair of the Parking Lot and Tenant
shall be responsible for reimbursing Landlord, as additional rent, for its
proportionate share of such costs based on the percentage of use determined by
the number of spaces leased by Tenant divided by the number of spaces authorized
to be leased by Tenant and the other party or parties which Landlord has
identified in its notice or notices to Tenant. Tenant shall pay such amounts in
accordance with Section 4.4 of the Lease.
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Executed as a sealed instrument in two or more counterparts on this 15 day
of May, 1997.
LANDLORD:
TRUSTEE UNDER THE WILL OF
XXXXX X. XXXXXXXX
By: /s/ X. X. Xxxxxxxx, Trustee
---------------------------------
Xxxxx X. Xxxxxxxx, III, Trustee
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TENANT:
IMMUNOGEN, INC., A MASSACHUSETTS
CORPORATION
By: /s/ Xxxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Vice President Finance and
Administration
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