Exhibit 10.19
ASSIGNMENT, ASSUMPTION AND AMENDMENT OF LEASE
This ASSIGNMENT, ASSUMPTION AND AMENDMENT OF LEASE (this "Agreement")
made this 10th day of April, 2002, by and among Central Plaza/Xxxxx Avenue LLC,
with an address at c/o Wight & Company, 00 Xxxxx Xxxxxx, Xxxxxx, XX 00000
("Landlord"), TolerRx, Inc., with an address at 000 Xxxxxxxxxxxxx Xxxxxx,
Xxxxxxxxx, XX ("Original Tenant") and Critical Therapeutics, Inc., with an
address at PMB #461, Xxx Xxxxxxx Xxxxxx, Xxxxxxxx 000, Xxxxxxxxx, XX 00000 ("New
Tenant").
RECITALS:
A. Landlord and Original Tenant entered into that certain Lease
dated October 25, 2000 (the "Lease"), whereby Original Tenant leases 7,533
square feet of office and laboratory space on the fourteenth and fifteenth
floors of the building known as Central Plaza I (the "Premises"). A true,
correct and complete copy of the Lease is attached hereto as Exhibit A. All
capitalized terms used herein without definition shall have the same meaning
herein as in the Lease. The Lease is in full force and effect and there are no
defaults thereunder.
B. Original Tenant desires to assign the Lease to New Tenant, and
the New Tenant desires to accept such assignment and, as of the Effective Date
(as defined below), to assume all of the Original Tenant's obligations under the
Lease, as amended by this Agreement, all upon the terms and conditions set forth
herein.
NOW, THEREFORE, effective as of the Effective Date (as defined below),
the parties agree as follows:
1. Amendment of Lease. The Lease is amended by deleting the
definition of Rent in Section 1.2 and substituting the following therefore:
Rent: The rent shall be at the rate of:
Monthly
Period Annual Rent Rent
------ ----------- ----
11/01/2000 - the date $233,523.00 $19,460.25
immediately preceding the
Effective Date
Effective Date - 10/31/05 $301,320.000 $25,110.00
2. Assignment of Lease. Original Tenant transfers, assigns and
sets over unto the New Tenant all of its right, title and interest under the
Lease and the Landlord hereby consents to this assignment.
The "Effective Date" shall mean [5] days after notice from Original
Tenant stating that Original Tenant has vacated the Premises; provided, however,
that Original Tenant will have vacated the Premises no later than July 1, 2002.
The estimated Effective Date is July 1, 2002.
3. Assumption of Lease/Condition of Premises. New Tenant will
accept the Premises in their "As-Is" condition with no representation or
warranty by Landlord or Original Tenant as to the condition of the Premises or
the suitability therefore for New Tenant's use. New Tenant shall have the right
to use the laboratory benches currently located within the Premises. At the end
of the Term, New Tenant shall be responsible for the removal of the laboratory
benches in accordance with the terms of the Lease.
New Tenant covenants promises and agrees that New Tenant shall
unconditionally assume and be bound by all terms, provisions and covenants of
the Lease and this Agreement, from and after the Effective Date. New Tenant
shall pay all sums to be paid, and perform each and every obligation to be
performed by, Original Tenant under and in accordance with the terms and
conditions of the Lease and this Agreement from and after the Effective Date.
New Tenant indemnifies and agrees to hold Original Tenant harmless from and
against any and all claims or liabilities on account of or based upon the
performance or observance of any obligations of the Tenant under the Lease first
occurring on or after the Effective Date. Original Tenant indemnified and agrees
to hold New Tenant harmless from and against any and all claims or liabilities
on account of or based upon the performance or observance of any obligations of
the Tenant under the Lease occurring prior to the Effective Date.
4. Reservation by Original Tenant. Original Tenant reserves the
rights to any refund due Original Tenant from Landlord arising out of any
overpayment by Original Tenant of amounts due for either real estate taxes or
operating expenses pursuant to the terms of Articles VIII and IX of the Lease
pertaining to the period prior to the Effective Date.
Notwithstanding anything herein to the contrary, Original
Tenant shall remain liable to Landlord for any amounts owed by Original Tenant
to Landlord under Articles VII and IX of the Lease for the period prior to the
Effective Date.
5. Security Deposit. Upon execution of this Agreement by all
parties, New Tenant shall pay to Original Tenant the sum of $38,920.50 as
reimbursement to Original Tenant of the Security Deposit paid by Original Tenant
under the Lease. Upon receipt of the $38,920.50 payment, Original Tenant assigns
to New Tenant all interest Original Tenant has in the Security Deposit under the
Lease and Landlord acknowledges New Tenant's right, title and interest to the
Security Deposit.
6. Release of Original Tenant. Landlord releases Original Tenant
from any and all obligations under the Lease and further assures that there are
no outstanding defaults against or by the Original Tenant.
7. Miscellaneous.
a) This Agreement shall be binding upon and shall inure to the
benefit of the parties to the Agreement and their respective
heirs, successors and permitted assigns.
b) Except as expressly modified by this Agreement, the Lease
shall be unchanged and remain in full force and effect, and is
hereby expressly approved, ratified and confirmed. No
provision of this Agreement that is held to be inoperative,
unenforceable or invalid shall affect the remaining
provisions, and to this end all provisions of this Agreement
are declared to be severable.
c) Time is of the essence of this Agreement.
d) This Agreement may not be changed orally, but only by an
agreement in writing, signed by the party against whom
enforcement of any waiver, change, modification or discharge
is sought.
e) This Agreement shall be construed in accordance with the laws
of the Commonwealth of Massachusetts.
f) This Agreement may be executed in counterparts, each of which
shall be deemed an original, but all of which together shall
constitute one and the same document.
g) All notices given pursuant to the Agreement must be in writing
and will be effectively given if personally delivered or, if
mailed, postage prepaid, certified or registered mail, receipt
requested to the address of the parties set forth above or to
such other address as any party subsequently may designate in
writing.
IN WITNESS WHEREOF, the parties have executed this Agreement under seal
as of the date set forth above.
LANDLORD: ORIGINAL TENANT:
CENTRAL PLAZA/XXXXX AVENUE LLC TOLERX, INC.
By: /s/ Xxxxxxx X. Xxx By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------ -------------------------------------
Its Manager Xxxxxxx X. Xxxxxxx, V.M.D., President
NEW TENANT:
CRITICAL THERAPEUTICS, INC.
By: /s/ Xxxxxxxxxxx Xxxxxxxxx
------------------------------
Name: Xxxxxxxxxxx Xxxxxxxxx
Title: Acting President
EXHIBIT A
Lease
ARTICLE I
BASIC LEASE PROVISIONS
1.1. INTRODUCTION The following sets forth basic data and,
where appropriate, constitutes
definitions of the terms hereinafter
listed.
1.2. BASIC DATA
Date: October 25, 2000
Landlord: Central Plaza/Xxxxx Avenue, LLC
Mailing c/o Wight & Company, Incorporated
Address of 00 Xxxxx Xxxxxx
Xxxxxxxx: Xxxxxx, XX 00000
Tenant: TolerRx, Inc.
Mailing Address 000 Xxxxxxxxxxxxx Xxxxxx
of Tenant: Xxxxxxxxx, XX 00000
Lease Term: Five (5) Years
Commencement Date: November 1, 2000
Rent: The rent shall be at the rate of:
MONTHLY
PERIOD ANNUAL RENT RENT
------ ----------- ----
11/01/2000 - 10/31/2003 $233,523.00 $19,460.25
11/01/2003 - 10/31/2005 $248,589.00 $20,715.75
Use: Tenant shall use the Premises for general
office and laboratory purposes only and
for no other use without the Landlord's
written consent which shall not be
unreasonably withheld or delayed. For the
purpose of this Lease, the term
laboratory shall mean an area entirely
segregated and operating independently
from the HVAC system of the Building to
be used for pharmaceutical research
activities. The function of said
laboratory is further described in
Exhibit E attached hereto.
Building: Central Plaza I
000 Xxxxxxxxxxxxx Xxxxxx
Xxxxxxxxx,XX 00000
Said building consists of 130,550
rentable square feet.
Premises: The area located within the Building
outlined on the attached Plans (Exhibit
A-1 - 14th Floor Space and Exhibit A-2 -
15th Floor Space). The area is deemed to
be 7533 rentable square feet of office
and laboratory space on the fourteenth
and fifteenth floors of Central Plaza I
(hereinafter "the Premises").
Tenant's
Percentage: 5.77% (7533/130,550)
Base Taxes: Fiscal Year 2001
Base Operating
Expense: Calendar Year 2000
Guarantor of Tenant's
Obligations: N/A
Tenant Plan Delivery
Date: N/A
Security Deposit: $38,920.50
Broker: Wight & Company, Incorporated and
Xxxxxxxx Xxxx Company
Mortgagees of
Record: Salomon Brothers Realty Corp.
ARTICLE II
DESCRIPTION OF PREMISES
AND APPURTENANT RIGHTS; TERM AND EXTENSIONS
2.1. LOCATION OF PREMISES - Landlord hereby demises and leases to Tenant, an
Tenant hereby accepts from Landlord, the Premises.
2.2. APPURTENANT RIGHTS AND RESERVATION - Tenant shall have, as appurtenant
to the Premises, the non-exclusive right to use, and permit its
invitees to use in common with others, public or common lobbies,
hallways, stairways, passenger elevators and sanitary facilities in the
building, but such rights shall always be subject to reasonable rules
and
regulations from time to time established by Landlord by suitable
notice, and to the right by Landlord to designate and change from time
to time areas arid facilities so to be used.
Excepted and excluded from the Premises are the roof or ceiling, the
floor and all perimeter walls of the Premises, except the inner
surfaces thereof, but the entry doors to the Premises are not excluded
from the Premises and are a part thereof for all purposes. Tenant
agrees that Landlord shall have the right to place in the Premises
utility lines, pipes and the like, to serve premises other than the
Premises, and to replace and maintain and repair such utility lines,
pipes and the like, in, over and upon the Premises.
During the hours of 8:00 a.m. to 6:00 p.m., Monday through Friday,
legal holidays in all cases excepted (hereinafter referred to as
"Normal Building Operating Hours"), the Building shall be open and
access to the Premises shall be freely available, subject to
interruption due to causes beyond Landlord's reasonable control. During
periods other than Normal Building Operating Hours, Landlord shall
endeavor, on the reasonable prior request of Tenant, to provide means
of access to the Premises, but access to the Premises during Normal
Building Operating Hours and at other times shall always be subject to
reasonable rules and regulations established by Landlord. Tenant
acknowledges that, in all events, Tenant is responsible for providing
security to the Premises and its own personnel.
Tenant acknowledges and agrees to provide access within the Premises to
the locations identified on Exhibit A-I to Landlord or their designee
at all times in case of emergency and otherwise during normal operating
hours as defined herein.
2.3. TERM - The initial Term of this Lease is as set forth in Section 1.2
hereof. The Term shall begin at 12:01 a.m. on November 1, 2000 and
shall end at 12:00 midnight on October 31, 2005.
ARTICLE III
RENT
3.1. RENT - Tenant agrees to pay the Landlord or as directed by Landlord on
the Commencement Date, and thereafter, monthly, in advance, on the
first day of each and every calendar month during the term of this
Lease, at the address from time to time designated by Landlord, the
Rent specified in Section 1.2 hereof. Until notice of some other
designation is given, Rent and all other charges for which provision is
herein made, including without limitation increases in rent, increases
in Operating Expenses payable pursuant to Article IX hereof, and
increases in real estate and other taxes payable pursuant to Article
VIII hereof, shall be paid by remittance to or to the order of
Landlord, at Landlord's mailing address.
ARTICLE IV
USE OF PREMISES
4.1. PERMITTED USE - Tenant agrees that the Premises shall be used and
occupied by Tenant only for the purpose specified as the use thereof in
Section 1.2 of this Lease, and for no other purpose or purposes.
Tenant further agrees to conform to the following provisions during the
entire Lease Term.
(a) Tenant shall cause all freight to be delivered to or removed
from the Building and the Premises in accordance with
reasonable rules and regulations established by Landlord
therefore;
(b) Tenant shall not place on the exterior or exterior walls
(including both interior and exterior surfaces of windows and
doors) or on any part of the Building outside the Premises,
any sign, symbol, advertisement or the like visible to public
view outside of the Premises without the prior consent of
Landlord, except for signs or lettering on the entry doors to
the Premises of the type commonly and customarily found in
first-class office buildings for the purpose of identifying
and locating the Premises. Where Landlord establishes
reasonable standards for such signs, Tenant agrees to conform
to the same and to submit for Landlord' s prior approval a
plan or sketch of the sign to be placed on such entry doors.
(c) Tenant shall not perform any act or carry on any practice
which may injure the Premises, or any other part of the
Building, or cause any offensive odors or loud noise, or
constitute a nuisance or menace to any other tenant or tenants
or other persons in the Building, or be detrimental to the
reputation or appearance of the Building.
4.2 ALTERATIONS - Tenant shall not alter or add to the Premises, except
upon and in accordance with written consent from Landlord. All
alterations made by Tenant shall be made in accordance with all
applicable laws and in a first-class manner. All work performed by
Tenant in the Premises shall remain therein and, at termination, shall
be surrendered as a part thereof, except for Tenant's usual trade
furniture and equipment (laboratory benches and furniture), which trade
furniture and equipment Tenant may remove upon the termination of this
Lease provided that Tenant is not then in default hereunder. Tenant
agrees to repair any and all damage to the Premises resulting from such
removal or, if Landlord so elects, to pay Landlord for the cost of any
such repairs. Notwithstanding the foregoing, Tenant will comply with
the requirements of Section 14.24 for the initial alteration of the
Premises.
4.3 RESTORATION CLAUSE - At the termination of this Lease, the Tenant will
vacate and surrender possession of the entire Premises ordinary wear
and tear excepted. At Landlords sole option, Tenant will restore all
space used as laboratories to an office standard which shall be defined
as - 24 ounce direct glue down nylon carpet throughout, clean wall
surfaces with any laboratory like apparatus removed, a clean ceiling
that matches the other space used as offices with adequate lighting for
office use. The Tenant shall remove all personal property and office
trade fixtures that may be readily removed without damage to the
Premises.
For spaces to be utilized by Tenant as laboratory space, the Tenant
will, at the termination of this Lease, return the space to its
original condition, ordinary wear and tear excepted, provided that
improvements to floors, walls, electrical service, lighting, ceiling,
and HVAC will remain in the space and will become the property of the
Landlord. While the benches, hoods, equipment, attached and unattached
laboratory furniture, and other laboratory relating items, whether
attached or unattached (Laboratory Improvements) will remain the
property of the Tenant. Tenant shall repair any damage to the Premises
caused by Tenant's removal of Laboratory Improvements to the condition
they were in when first occupied by Tenant, normal wear and tear
excepted. For the restoration of the intended lab space on the 00xx
xxxxx (Xxxxxx Xxxxxx side of the building), the Tenant will return the
space to an "empty shell" status with three existing office units on
the Massachusetts Avenue side of the building, while repairing all open
plumbing pipes, electrical conduits, or any damage to walls or floors
incurred by Tenant during the renovation and restoration. At the
Landlord's discretion and before Tenant's departure, the Landlord may
ask Tenant to leave the space "as is" without subjecting Tenant to any
restoration efforts.
ARTICLE V
ASSIGNMENT AND SUBLETTING
5.1 PROHIBITION - Notwithstanding any other provisions of this Lease,
Tenant covenants and agrees that it will not assign this Lease or
sublet the whole or any part of the Premises without the express
written consent of Landlord which consent shall not be unreasonably
withheld, conditioned, or delayed. Without limiting the generality of
the foregoing, if Landlord shall consent to any such assignment or
sublet, it shall be a condition of any such consent i) that any excess
in the amount of rent paid by any sublessee or assignee over the Rent
payable hereunder less reasonable leasing commissions shall be entirely
the property of the Landlord; and ii) the Tenant shall not in any way
be excused from its obligations hereunder because of such assignment or
sublease.
ARTICLE VI
RESPONSIBILITY FOR REPAIRS
AND CONDITION OF PREMISES
6.1 REPAIRS TO BE MADE BY LANDLORD - Except as otherwise provided in this
Lease, Landlord agrees to keep in good order, condition and repair the
Building, including the utility systems therein, insofar as such
systems service the Premises. Landlord shall in no event be responsible
to Tenant for the condition of glass in and about the Premises or for
the doors leading to the Premises, or for any condition in the Premises
or the Building caused by any act of neglect of Tenant or any
contractor, agent, employee or invitee of Tenant, or anyone claiming
by, through or under Tenant.
6.2 TENANT'S AGREEMENT - Tenant acknowledges that, as of the date hereof,
the Premises are in good order, condition and repair and as represented
to Tenant, and that, from and after the date hereof, and until the end
of the Term, condition and repair the Premises and every part thereof,
excepting only those repairs for which Landlord is responsible under
the terms of the Lease or damage by fire or other casualty and as a
consequence of the exercise of the power of eminent domain and
excepting ordinary wear and tear; and shall surrender the Premises, at
the end of the term, in such condition.
6.3 FLOOR LOAD-HEAVY MACHINERY - Tenant shall not place a load upon any
floor in the Premises exceeding the floor load per square foot of area
which such floor was designed to carry and which is allowed by law.
Landlord reserves the right to prescribe the weight and position of all
business machines and mechanical equipment, including safes, which
shall be placed so as to distribute the weight. Business machines and
mechanical equipment shall be placed and maintained by Tenant at
Tenant's expense in settings sufficient, in Landlord's judgment, to
absorb and prevent vibration, noise and annoyance. Tenant shall not
move any safe, heavy machinery, heavy equipment, freight, bulky matter
or fixtures into or out of the Building without Landlord's prior
consent.
ARTICLE VII
SERVICES TO BE FURNISHED BY LANDLORD
7.1 ELECTRIC CURRENT - Landlord will furnish to Tenant during Normal
Building Operating Hours electric current for the operation of lighting
fixtures and the electrical outlets located in the Premises for normal
lighting requirements and normal light business office equipment (as
distinguished from special items such as computer installations; such
electricity shall be paid for by the Tenant). If an electric meter
serves the Building, or a portion of the Building which includes the
Premises, but the Premises are not separately metered, Tenant shall pay
monthly to the Landlord an estimated amount based upon its
proportionate share (determined by its portion of the total rentable
area metered on a per rentable square foot basis) of the estimated
usage, to be adjusted by the Landlord upon receipt of the electric
xxxx. If an electric meter serves the Premises, the electric service
shall be billed directly to and paid by the Tenant.
No special installations or facilities shall be permitted in the
Premises unless Tenant has represented the type of equipment and
electrical energy requirements on account thereof, and Landlord has
approved such installation in writing and the Tenant pays the
additional cost of the energy used.
7.2 WATER - Landlord shall furnish hot and cold water for ordinary toilet,
lavatory and drinking purposes to those plumbing fixtures presently
installed within the Building. If Tenant requires water for any other
purpose, Tenant shall pay to Landlord an appropriate charge stipulated
by Landlord to reimburse Landlord for the cost of such water and
related sewer use charge (including a charge to reimburse Landlord for
the cost of metering Tenant's usage).
7.3 OTHER SERVICES - Landlord shall:
(a) provide automatically operated elevators in such number as
Landlord shall from time to time determine to be necessary in
Landlord's sole discretion, and maintain the same in
operation, available for the non-exclusive use thereof by
Tenant, in common with others having business in the Building,
during Normal Building Operating Hours;
(b) provide routine cleaning service specified in the schedule
attached hereto to the Premises outside of Normal Building
Operating Hours;
(c) provide cleaning services to public areas, including
lavatories in the Building so that the same are in reasonably
neat and clean condition; and
(d) furnish air conditioning and heat to the Premises during
normal seasons therefor and during Normal Building Operating
Hours by means of equipment presently installed in the
Premises. If such air conditioning and/or heat is generated
electrically, or by gas and if an electric or gas meter serves
the Premises, the cost thereof shall be billed directly to and
paid by the Tenant in addition to which Tenant shall pay its
proportionate share of the cost of the heating the common
areas of the Building. If electricity or gas is not metered to
the Premises, the Tenant shall pay such electricity or gas
monthly in advance based upon its proportionate share
(determined by its portion of the total rented area metered on
a per rentable square foot basis) of the estimated usage, to
be adjusted promptly by the Landlord upon its receipt of the
electricity or gas xxxx.
ARTICLE VIII
REAL ESTATE AND OTHER TAXES
8.1 TENANT'S SHARE OF REAL ESTATE TAXES - In addition to the Rent to be
paid by Tenant, Tenant shall pay to Landlord its proportionate share
(determined by its portion of the total rentable area on a per rentable
square foot basis) of the amount by which real estate taxes for any tax
period or part thereof during the term of this lease on the Building
and the land on which the Building is located, exceeds the taxes for
the Base Tax Year specified in Section 1.2 (prorated for less than a
full year).
Payments by Tenant on account of Tenant's share of such taxes shall be
made monthly and at the time and in the fashion herein provided for the
payment of Rent. The amount so to be paid to Landlord shall be an
amount form time to time estimated by Landlord to be sufficient to
provide Landlord, in the aggregate, a sum equal to Tenant's share of
each payment by Landlord on account of such taxes, ten (10) days at
least before the day on which such payments by Landlord would become
delinquent.
Promptly after receipt by Landlord of bills for such taxes, Landlord
shall advise Tenant of the amount thereof, and the computation of
Tenant's' share on account thereof for the tax period included within
the term of this Lease covered by such xxxx. If payments theretofore
made for such period by Tenant exceed such share, Landlord shall credit
the amount of overpayment against subsequent obligations of Tenant;
but, if such share is greater than payments theretofore made on account
for such period, Tenant shall make suitable payable to Landlord within
ten (10) days after being so advised by Landlord.
Landlord shall have the same rights and remedies for the non-payment by
Tenant of any amounts due on account of such taxes as Landlord has
hereunder for the failure of Tenant to pay Rent.
Payments by the Tenant to the Landlord on account of such taxes shall
not be considered as being held in trust, in escrow, or the like, by
the Landlord; it being the express intent of the Landlord and the
Tenant that the Tenant shall in no event be entitled to receive
interest upon, or any payments on account of earnings or profits
derived from, such payments by the Tenant to the Landlord.
ARTICLE IX
OPERATING EXPENSES
9.1 TENANT'S SHARE OF OPERATING COSTS - In addition to the Rent to be paid
by Tenant, Tenant shall pay to Landlord its proportionate share
(determined by its portion of the total rented area on a per rentable
square foot basis) of the amount by which "Operating Costs (as
hereinafter defined) for any calendar year or part thereof during the
term of this Lease, exceed the Operating Costs for the Base Operating
Year specified in Section 1.2 (prorated for less than a full year).
Payments by Tenant on account of Tenant's share of such excess shall be
made monthly and at the time and in the fashion herein provided for the
payment of Rent. The amount so to be paid to Landlord shall be an
amount from time to time estimated by Landlord to be sufficient to
provide Landlord, in the aggregate, a sum equal to Tenant's share of
such excess for each calendar year during the Term of this Lease.
Promptly after the end of each calendar year during the Term of this
Lease, Landlord shall submit to Tenant an accounting of costs for such
calendar year, and Landlord shall certify to the substantial accuracy
thereof. If payments theretofore made for such calendar year by Tenant
exceed Tenant's share of Operating Costs according to such statement,
Landlord shall credit the amount of overpayment against subsequent
obligations of Tenant; but, if the Tenant's share of Operating Costs is
greater than payments theretofore made on account for such period,
Tenant shall make suitable payment to Landlord within ten (10) days
after being so advised by Landlord.
Landlord shall have the same rights and remedies for the non-payment by
Tenant of any amounts due on account of such Operating Costs as
Landlord has hereunder for the failure of Tenant to pay the Rent.
Payments by the Tenant to the Landlord on account of such Operating
Costs shall not be considered as being held in trust, in escrow, or the
like, by the Landlord; it being the express intent of the Landlord and
the Tenant that the Tenant shall in no event be entitled to receive
interest upon, or any payments on account of earnings or profits
derived from, such payments by the Tenant to the Landlord.
9.2 DEFINITION OF "OPERATING COSTS" - The term "Operating Costs" means all
expenses reasonably incurred in the operation, management, cleaning and
maintenance of the Building and the land on which the same is located,
including, without limitation, expenses reasonably incurred in the
cleaning and maintenance of all public areas, elevators, cooling and
heating equipment for the Building, wages to Landlord's employees or
independent contractors providing cleaning and maintenance services to
the Building, taxes on such wages, charges for water and sewerage, fuel
expense, and electric current utilized for the Building, not otherwise
paid by the Tenant pursuant to Section 7.1 and 7.3 hereof, premiums for
fire, casualty, liability and such other insurance as may
from time to time customarily be maintained on first-class office
buildings in the city or town where the Building is located, the cost
of any installations, alterations, and the like in and to the Building
made necessary by amendment of governmental building codes or other
regulations occurring after the date of this lease, the costs incurred
in complying with the requirements of the insurers of the Building or
with the requirements of any applicable Board of Fire Underwriters and
the cost (or portion thereof allocable to the Building) of any capital
improvement that reduces other operating costs chargeable to Tenant
(amortized over such reasonable period as Landlord shall determine,
together with interest at the rate of Prime (as per Fleet Bank) plus 2
% per annum on the unamortized balance), management fee in amounts
customarily charged for similar properties and such other services as
Landlord, in its sole discretion, may, from time to time, deem
necessary for the maintenance, operation and/or security of the
Building.
ARTICLE X
INDEMNITY AND PUBLIC LIABILITY INSURANCE
10.1 TENANT'S INDEMNITY - To the maximum extent this agreement may be made
effective according to law, Tenant agrees to indemnify and save
harmless Landlord from and against all claims of whatever nature
arising from any act, omission or negligence of Tenant, or Tenant's
contractors, licensees, invitees, agents, servants or employees, or
arising from any accident, injury or damage whatsoever caused to any
person, or to the property of any person, occurring after the
commencement of the Lease Term and until the end of the Lease Term and
thereafter, so long as Tenant is in occupancy of any part of the
Premises.
This indemnity and hold harmless agreement shall include indemnity
against all costs, expenses and liabilities incurred in or in
connection with any such claim or proceeding brought thereon, and the
defense thereof, by counsel satisfactory to Landlord.
10.2 PUBLIC LIABILITY INSURANCE - Tenant agrees to maintain in full force
from the date on which Tenant first enters the Premises for any reason,
throughout the Lease Term, and thereafter so long as Tenant is in
occupancy of any part of the Premises, a policy of Comprehensive
General Liability insurance in accordance with the broadest form of
such coverage as is available from time to time in the jurisdiction in
which the Premises are located. The minimum limits of liability of such
insurance shall be $1 million per occurrence,
Bodily Injury Liability (including death) and $250,000 per occurrence,
Property Damage Liability. Such minimum limits shall be increased from
time to time as specified by the Landlord provided such increases are
consistent with sound practice.
Tenant further agrees to maintain a Worker's Compensation and
Employer's Liability Insurance policy. The limit of liability as
respects Employers' Liability coverage shall be no less than $100,000
per accident.
Except for Workers' Compensation and Employers' Liability coverage, the
Tenant agrees that the Landlord (and such other persons as are in
privity of the estate with Landlord as
may be set out in notice from time to time) are named as additional
insureds. Further, all policies shall be noncancellable and
non-amendable with respect to Landlord and Landlord's said designees
without 30 days' prior notice to Landlord. A duplicate original or a
Certificate of Insurance evidencing the above agreements shall be
delivered to Landlord.
10.3 TENANT'S RISK - To the maximum extent this agreement may be made
effective according to law, Tenant agrees to use and occupy the
Premises and to use such other portions of the Tenant's own risk; and
Landlord shall have no responsibility or liability for any loss of or
damage to fixtures or other personal property of Tenant for any reason,
unless Landlord is proven to have sole liability for negligence by a
court of competent jurisdiction. The provisions of this Section shall
be applicable from and after the execution of this Lease and until the
end of the Lease Term, and during such further period as Tenant may use
or be in occupancy of any part of the Premises or of the Building.
Tenant shall comply with any loss prevention or safety recommendations
made by Landlord's insurance companies when such recommendations arise
from the operation of the Tenant. The cost of compliance, if any, shall
be paid by the Tenant.
10.4 INJURY CAUSED BY THIRD PARTIES - To the maximum extent this agreement
may be made effective according to law, Tenant agrees that Landlord
shall not be responsible or liable to Tenant, unless Landlord is proven
to have sole liability for negligence by a court of competent
jurisdiction, or to those claiming by, through or under Tenant, for any
loss or damage that may be occasioned by or through the acts or
omissions of third persons for any loss or damage resulting to Tenant
or those claiming by, through or under Tenant, or its or their
property, from the breaking, bursting, stopping or leaking of electric
cables and wires, water, gas, sewer or steam pipes, and from roof leaks
and the like.
ARTICLE XI
LANDLORD'S ACCESS TO PREMISES
11.1. LANDLORD'S RIGHT OF ACCESS - Landlord shall have the right to enter the
premises at all reasonable hours, and upon reasonable advance notice
and accompanied by a representative of Tenant, and at all hours in the
event of an emergency, for the purpose of inspecting or of making
repairs to the same, and Landlord shall also have the right to make
access available at all reasonable hours to prospective or existing
mortgagees or purchasers of the Building.
11.2 EXHIBITION OF SPACE TO PROSPECTIVE TENANTS - For a period commencing
six (6) months prior to the expiration of the Lease Term, Landlord may
have reasonable access to the Premises at all hours and upon reasonable
advance notice and accompanied by a representative of Tenant, and upon
reasonable advance notice and accompanied by a representative of Tenant
for the purpose of exhibiting the same to prospective tenants, and may
post suitable notices on the Premises advertising the same for rent.
ARTICLE XII
FIRE, EMINENT DOMAIN, ETC.
12.1. ABATEMENT OF RENT - If the Premises shall be damaged by fire or
casualty, the Rent and the charges payable by Tenant hereunder shall
xxxxx or be reduced proportionately for the period in which, by reason
of such damage, there is substantial interference with the operation of
Tenant's use of the Premises, having regard to the extent to which
Tenant may be required to discontinue Tenant's use of the Premises.
Such abatement or reduction shall end if and when Landlord shall have
restored the Premises (exclusive of any of Tenant's fixtures,
furnishings, equipment and the like) to substantially the condition in
which the Premises were in prior to such damage.
If any part of the Building is taken by any exercise of the power of
eminent domain, as a result of which there is substantial interference
with the operation of Tenant's use of the Premises, then the rent and
the charges payable by Tenant hereunder shall be justly and equitably
abated and reduced according to the nature and extent of the loss of
use thereof suffered by Tenant.
12.2. RIGHT OF TERMINATION - If the Premises or the Building are
substantially damaged by fire or casualty (the term "substantially
damaged" meaning damage of such a character that the same can not, in
ordinary course, reasonably be expected to be repaired within ninety
(90) days from the time that repair work would commence), or any part
of the Building is taken by any exercise of the right of eminent
domain, then Landlord or Tenant shall have the right to terminate this
Lease by giving notice of either such party's election to do so,
whereupon 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.
12.3. AWARD - Landlord shall have and hereby reserves and accepts, and Tenant
hereby grants and assigns to Landlord, all rights to recover for
damages to the Building, the land on which the same is located, as
aforesaid, and the leasehold interest hereby created, and to
compensation accrued or hereafter to accrue by reason of such taking,
damage or destruction, as aforesaid, and by way of confirming the
foregoing, Tenant hereby grants and assigns, and covenants with
Landlord to grant and assign, to Landlord all rights to such damages or
compensation. Nothing contained herein shall be construed to prevent
Tenant from prosecuting in any condemnation proceedings a claim for the
value of any of Tenant's movable trade fixtures installed in the
Premises by Tenant at Tenant's expense and for relocation expenses,
provided that such action shall not affect the amount of compensation
otherwise recoverable by Landlord from the taking of authority.
ARTICLE XIII
DEFAULT
13.1 TENANT'S DEFAULT - If
(a) Tenant shall fail to pay the rent or other charges for which
'provision is made herein on or before the date on which the
same become due and payable, or
(b) shall fail to perform or observe any other term or condition
contained in this Lease, and such failure is not cured within
twenty (20) days after written notice form Landlord thereof,
or, if cure may not be completed within twenty (20) days, such
cure has been commenced within twenty (20) days and is
thereafter completed in a reasonably prompt manner, or
(c) if the estate hereby created shall be taken on execution or by
other process of law, or if Tenant shall be judicially
declared bankrupt or insolvent according to law, or if any
assignment shall be made of the property of Tenant for the
benefit of creditors, or if a receiver, guardian, conservator,
trustee in involuntary bankruptcy or other similar officer
shall be appointed to take charge of all or any substantial
part of Tenant's property by a court of competent
jurisdiction, or if a petition shall be filed for the
reorganization of Tenant under any provisions of any
Bankruptcy Act now or hereafter enacted, or if Tenant shall
file a petition for such reorganization, or for arrangements
under any provision of any Bankruptcy Act now or hereafter
enacted and providing a plan for a debtor to settle, satisfy
or extend the time for payment of debt (references herein to
Tenant shall include any guarantor of Tenant's obligations
hereunder), then, and in any of said cases Landlord lawfully
may, immediately or at any time thereafter, and without demand
or notice, enter into and upon he Premises or any part thereof
in the name of the whole and repossess the same, and expel
Tenant and those claiming through or under Tenant and remove
its or their effects (forcibly, if necessary) without being
guilty of any manner of trespass, and without prejudice to any
remedies which might otherwise be used for arrears of rent or
breach of covenant. Upon entry as aforesaid, Landlord shall
have the right, by suitable notice to Tenant, forthwith to
terminate this Lease. Tenant covenants and agrees,
notwithstanding any entry or re-entry by Landlord, whether by
summary proceedings, termination, or otherwise, to pay and be
liable for, on the days originally fixed herein for the
payment thereof, amounts equal to the several installments of
Rent and other charges reserved a they would, under the terms
of this Lease, become due if this Lease had not been
terminated or if Landlord had not entered or reentered, as
aforesaid, and whether the Premises be relet or remain vacant,
in whole or in part, or for a period less than the remainder
of the Term, and for the whole thereof. In the event the
Premises be relet by Landlord, Tenant shall be entitled to a
credit in the net amount of Rent and other charges received by
Landlord in reletting, after deduction of all expenses
incurred in reletting the Premises (including, without
limitation, remodeling costs, brokerage fees, attorney's fees,
and the like).
Without limiting any of Landlord's rights and remedies
hereunder, and in addition to all other amounts Tenant is
otherwise obligated to pay, it is expressly agreed that
Landlord shall be entitled to recover from Tenant all costs
and expenses, including reasonable attorney's fees, and court
costs incurred by Landlord in enforcing this Lease from and
after Tenant's default and all of Landlord's reasonable
expenses in connection with reletting the brokerage
commissions, fees for legal services, expenses of preparing
the Premises for reletting and the like ("Reletting
Expenses"). It is agreed by Tenant that Landlord may (i) relet
the
Premises or any part or parts thereof for a term or terms
which may at Landlord's option be equal to or less than or
exceed the period which would otherwise have constituted the
balance of the Term, and may grant such tenant inducements as
Landlord in its sole judgment considers advisable, and (ii)
make such alterations, repairs and decorations in the Premises
as Landlord in its sole discretion considers advisable, and no
action of Landlord in accordance with the foregoing nor any
failure to relet or to collect rent under any reletting shall
operate or be construed to release or reduce Tenant's
liability. Landlord's Reletting Expenses together with all
sums otherwise provided for in this Lease, whether incurred
prior to or after such termination, shall be due and payable
immediately from time to time upon notice from Landlord. If
this Lease is terminated for default, then Tenant covenants,
as an additional cumulative obligation after termination, to
pay forthwith to Landlord, at Landlord's election made by
written notice to Tenant at any time after termination, as
liquidated damages a single lump sum payment equal to the sum
of (i) all sums provided for in this Lease to be paid by
Tenant and not then paid at the time of such election, plus
(ii) the excess of all of the rent reserved for the residue of
the Term (with additional rent on account of Landlord's Taxes
and Operating Expenses deemed to increase 10 % in each year on
a compounding basis) over all of the rent actually received
(or which rent received), on account of the Premises during
such period, which rent from reletting shall be reduced by
reasonable projections of vacancies and by Landlord's
Reletting Expenses described above to extent not theretofore
paid to Landlord.
13.2 LANDLORD'S DEFAULT - Landlord shall in no event be in default in the
performance of any of Landlord's obligations hereunder unless and until
Landlord 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 written notice by Tenant to Landlord properly
specifying wherein Landlord has failed to perform any such obligation.
ARTICLE XIV
MISCELLANEOUS PROVISIONS
14.1. EXTRA HAZARDOUS USE - Tenant covenants and agrees that Tenant will not
do or permit anything to be done in or upon the Premises, or bring in
anything or keep anything therein, which shall increase the rate of
insurance on the Premises or on the Building above the standard rate
applicable to premises being occupied for the use to which Tenant has
agreed to devote the Premises; and Tenant further agrees that, in the
event that Tenant shall do any of the foregoing, Tenant will promptly
pay to Landlord, on demand, any such increase resulting therefrom,
which shall be due and payable as additional rent hereunder.
14.2 WAIVER - Failure on the part of the Landlord or Tenant to complain of
any action or non-action on the part of the other, no matter how long
the same may continue, shall never be a waiver by Tenant or Landlord,
respectively, of any of the other's rights hereunder. Further, no
waiver at any
time of any of the provisions hereof by Landlord or Tenant shall be
construed as waiver of any of the other provisions hereof, and a waiver
at any time of any of the provisions hereof shall not be construed as a
waiver at any subsequent item of the same provisions. The consent or
approval of Landlord or Tenant to or of any action by the other
requiring such consent or approval shall not be construed to waive or
render unnecessary Landlord's or Tenant's consent or approval to or of
any subsequent similar act by the other.
No payment by Tenant, or acceptance by Landlord, of a lesser amount
than shall be due from Tenant to Landlord shall be treated otherwise
than as a payment on account. The acceptance by Landlord of a check for
a lesser amount with an endorsement or statement thereon, or upon any
payment in full, shall be given no effect, and Landlord may accept such
check without prejudice to any other rights or remedies which Landlord
may have against Tenant.
14.3 COVENANT OF QUIET ENJOYMENT - Tenant, subject to the terms and
provisions of this Lease on payment of the Rent and observing, keeping
and performing all of the terms and provisions of this Lease on
Tenant's part to be observed, kept and performed, shall lawfully,
peaceably and quietly have, hold, occupy and enjoy the Premises during
the Term hereof, without hindrance or ejection by any persons lawfully
claiming under Landlord to have title to the Premises superior to
Tenant. The foregoing covenant of quiet enjoyment is in lieu of any
other covenant, express or implied; and it is understood and agreed
that this covenant and any and all other covenants of Landlord
contained in this Lease shall be binding upon Landlord and Landlord's
successors only with respect to breaches occurring during Landlord's
and Landlord's successors' respective ownership of Landlord's interest
hereunder.
With respect to any services, including, without limitation, electric
current or water, to be furnished by Landlord to Tenant, or obligations
to be performed by Landlord hereunder, Landlord shall in no event be
liable for failure to furnish or perform the same when (and the date
for performance of the same shall be postponed so long as Landlord is)
prevented from doing so by strike, lockout, breakdown, accident, order
or regulation of or by any governmental authority, or failure of
supply, or inability by the exercise of reasonable diligence to obtain
supplies, parts, or employees necessary to furnish such services, or
perform such obligations, or because of war or other emergency, or for
any cause beyond Landlord's' reasonable control, or for any cause due
to any act or neglect of Tenant or Tenant's servants, agents,
employees, licensees, invitees or any person claiming by, through or
under Tenant. Landlord agrees to use reasonable efforts to minimize the
cause of any such interruption.
In no event shall Landlord ever be liable to Tenant for any indirect,
special or consequential damages suffered by Tenant from whatever
cause.
14.4. NOTICE TO MORTGAGEE - After receiving notice from any person, firm or
other entity that it holds a mortgage which includes the Premises as
part of the mortgaged premises, no notice from Tenant to Landlord shall
be effective unless and until a copy of the same is given to such
holder, and the curing of any of Landlord's defaults by such holder
shall be treated as performance by Landlord. Tenant acknowledges by
execution hereof that it has received notice of the mortgagees of
record specified in Section 1.2.
GMACCM as Master Servicer for Chase Manhattan Bank
Trustee for Salomon Brothers Mortgage Securities VII, Inc.
c/o GMAC Commercial Mortgage
X.X. Xxx 0000
Xxxxxxx, XX 00000
14.5. MECHANICS' LIENS - Tenant agrees immediately to discharge (either by
payment or by the filing of the necessary bond, or otherwise) any
mechanics', material men's or other lien against the Premises and/or
Landlord's interest therein, which liens may arise out of any payment
due for, or purported to be due for, any labor, services, materials,
supplies or equipment alleged to have been furnished to or for Tenant
in, upon or about the Premises.
14.6. NO BROKERAGE - Tenant warrants and represents that Tenant has not dealt
with any broker other than the broker, if any, named in Section 1.2
hereof, in connection with the consummation of this Lease, and in the
event any claim is made against the Landlord relative to dealings with
brokers other than any broker named in Section 1.2. Tenant shall defend
the claim against Landlord with counsel of Landlord's selection and
save harmless and indemnify Landlord on account of loss, cost or damage
which may arise by reason of any such claim.
14.7. INVALIDITY OF PARTICULAR PROVISIONS - If any term or provision of this
Lease, or the application thereof to any person or circumstance shall,
to any extent, be invalid or unenforceable, the remainder of this
Lease, or the application of such term or provision to persons or
circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each term and
provision of this Lease shall be valid and be enforced to the fullest
extent permitted by law.
14.8. PROVISIONS BINDING, ETC - Except as herein otherwise provided, the
terms hereof shall be binding upon and shall inure to the benefit of
the successors and assigns, respectively, of Landlord and Tenant and,
if Tenant shall be an individual, upon and to his heirs, executors,
administrators, successors and assigns. If two or more persons are
named as Tenant herein, each of such persons shall be jointly and
severally liable for the obligations of the Tenant hereunder, and
Landlord may proceed against anyone without first having commenced
proceedings against any other of them. Each term and each provision of
this Lease to be performed by Tenant shall be construed to be both a
covenant and a condition. Unless otherwise stated herein, any consent
or approval required herein shall be in writing and may be given or
withheld on the sole absolute discretion of the party whose consent or
approval is required. The reference contained to successors and assigns
of Tenant is not intended to constitute a consent to assignment by
Tenant, but has reference only to those instances in which Landlord may
later give consent to a particular assignment as required by those
provisions of ARTICLE V hereof.
14.9 RECORDING - Tenant agrees not to record the within Lease or a Notice of
Lease without the express written consent of the Landlord.
14.10 NOTICES - Whenever, by the terms of this Lease, notice shall or may be
given either to Landlord or to Tenant, such notice shall be in writing
and shall be delivered in hand or sent by registered or certified mail,
postage prepaid return receipt requested:
If intended for Landlord, addressed to Landlord at the address set
forth in Section 1.2 of this Lease (or to such other address or
addresses as may from time to time hereafter be designated by Landlord
by like notice) and a copy to Xxxxxx & Xxxxxxx, Xxx Xxxxxxx Xxxxxx,
Xxxxxx, XX 00000, Attn: Xxxxx X. Xxxx, Esquire.
If intended for Tenant, addressed to Tenant at the address set forth in
Section 1.2 of this Lease (or to such other address or addresses as may
from time to time hereafter be designated by Tenant by like notice).
All such notices shall be effective when delivered in hand, or when
deposited in the United States mail within the Continental United
States provided that the same are received within five calendar days at
the address to which the same were sent.
14.11. WHEN LEASE BECOMES BINDING - Employees or agents of Landlord have no
authority to make or agree to make a lease or any other agreement or
undertaking in connection herewith. The submission of this document for
examination and negotiation does not constitute an offer to lease, or a
reservation of, or option for, the Premises, and this document shall
become effective and binding only upon the execution and delivery
hereby by both Landlord and Tenant. All negotiations, considerations,
representations and understandings between Landlord and Tenant are
incorporated herein and may be modified or altered only by written
agreement between Landlord and Tenant, and no act or omission of any
employee or agent of Landlord shall alter, change or modify any of the
provisions hereof.
14.12. 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.
14.13. RIGHTS OF MORTGAGEE - This Lease shall be subordinate to any mortgage
from time to time encumbering the Premises, whether executed and
delivered prior to or subsequent to the date of this Lease, if the
holder of such mortgage shall so elect. Tenant agrees to execute such
instruments of subordination in confirmation of the foregoing agreement
as such holder may request. The Tenant hereby appoints such holder as
Tenant's attorney-in-fact to execute such subordination agreement upon
default of Tenant in complying with such holder's request. The Landlord
agrees to attempt in good faith to obtain a non-disturbance agreement
from any such mortgagee in favor of the Tenant. Tenant agrees a) to
attorn to any such holder upon its acquisition of title to the
Premises, b) to execute such further evidences of attornment as such
holder may request, c) that such attornment shall not be terminated by
foreclosure and d) that such holder may, at its option, accept or
reject such attornment.
14.14. STATUS REPORT - Recognizing that both parties may find it necessary to
establish to third parties, such as accountants, banks, mortgagees or
the like, the then current status of performance hereunder, either
party, on the request of the other made from time to time, will
promptly furnish to Landlord, or the holder of any mortgage encumbering
the Premises, or to Tenant, as the case may be, a statement of the
status of any matter pertaining to this Lease, including, without
limitation, acknowledgments that (or the extent to which) each party is
in compliance with its obligations under the terms of this Lease.
Without limiting the foregoing, Tenant agrees to execute from time to
time a Tenant Estoppel Letter.
14.15. SECURITY DEPOSIT - Tenant agrees that the Security Deposit will be paid
upon execution and delivery of this Lease, and that Landlord shall hold
the same, throughout the Term of this Lease, as security for the
performance by Tenant of all obligations on the part of Tenant to be
kept and performed. Landlord shall have the right from time to time
without prejudice to any other remedy Landlord may have on account
thereof, to apply such deposit, or any part thereof, to Landlord's
damages arising form any default on the part of the Tenant. Tenant not
then being in default, Landlord shall return the deposit, or so much
thereof as shall not have theretofore been applied in accordance with
the terms of this Section 14.15, to Tenant on the expiration or earlier
termination of the Lease Term and surrender of possession of the
Premises by Tenant to Landlord at such time. If Landlord conveys
Landlord's interest under this Lease, the deposit or any part thereof
not previously applied, shall be turned over by Landlord to Landlord's
grantee, and, if so turned over, Tenant agrees to look solely to such
grantee for proper application of the deposit in accordance with the
terms of this Section 14.15, and the return thereof in accordance
herewith.
The holder of a mortgage on property which includes the Premises shall
never be responsible to Tenant for the return or application of any
such deposit, whether or not it succeeds to the position of Landlord
hereunder, unless such deposit shall have been received by such holder.
14.16. SELF-HELP - Landlord shall have the right, but shall not be required to
do so, to pay such sums or do any act which requires the expenditure of
monies which may be necessary or appropriate by reason of the failure
or neglect of Tenant to perform any of the provisions of this Lease
after notice and the expiration of applicable cure periods, and in the
event of the exercise of such right by Landlord, Tenant agrees to pay
to Landlord forthwith upon demand all such sums; and if Tenant shall
default in such payment, Landlord shall have the same rights and
remedies as Landlord has hereunder for the failure of Tenant to pay the
Rent. Tenant shall have thirty (30) days to correct any failure or
neglect after notification by the Landlord before the Landlord
exercises Self-Help. This thirty (30) day period does not apply to any
payment as outlined in Section 13.1(a).
14.17. HOLDING OVER - Any holding over by Tenant after the expiration of the
Term of this Lease shall be treated as a tenancy at sufferance and the
Tenant shall be obligated to pay the Landlord for each month or portion
thereof, a use and occupancy charge equal to twice the monthly rent and
expenses being charged at the conclusion of the Lease. The Tenant shall
also pay all damages sustained by the Landlord on account thereof, and
the
provisions of this subsection shall not operated as a waiver by
Landlord of any right of re-entry provided in this Lease.
14.18. NON-SUBROGATION - Insofar as, and to the extent that, the following
provision may be effective without invalidating or making it impossible
to secure insurance coverage obtainable from responsible insurance
companies doing business in the locality in which the Premises are
located (even though extra premium may result therefrom). Landlord and
Tenant mutually agree that, with respect to any hazard which is covered
by insurance then being carried by them, respectively, the one carrying
such insurance and suffering such loss releases the other of and from
any and all claims with respect to such loss; and they further mutually
agree that their respective insurance companies shall have no right of
subrogation against the other on account thereof. In the event that
extra premium is payable by either party as a result of this provision,
the other party shall reimburse the party paying such premium the
amount of such extra premium. If, at the request of one party, this
release and non-subrogation provision is waived then the obligation of
reimbursement shall cease for such period of time as such waiver shall
be effective, but nothing contained in this Section 14.18 shall
derogate from or otherwise affect releases elsewhere herein contained
of either party for claims.
14.19. LATE DELIVERY - It is expressly understood and agreed that if Landlord
is unable to deliver possession of the Premises as required hereunder
to Tenant on the Commencement Date, or on such other date as may be
specified in this Lease, by reason of the holding over of a prior
tenant or for any other reason, then Landlord shall have no liability
to Tenant whatsoever on account thereof; provided, however, that Tenant
shall not be obligated to pay rent hereunder until Landlord is able to
deliver possession of the Premises to Tenant, and further provided that
Tenant shall have the right to terminate this Lease in the event
Landlord is unable to deliver possession of the Premises to Tenant
within twenty (20) days after the date required herein by giving notice
to Landlord of Tenant's desire to do so within fifteen (15) days after
such twenty day period, right of termination constituting Tenant's sole
and exclusive remedy at law or in equity for Landlord's failure so to
deliver the Premises.
14.20. ACCELERATED END OF TERM - INTENTIONALLY OMITTED
14.21. RELOCATION OF PREMISES - INTENTIONALLY OMITTED
14.22. GOVERNING LAW - This Lease shall be governed exclusively by the
provisions hereof and by the laws of the Commonwealth of Massachusetts
as the same may from time to time exist.
14.23. LANDLORD'S LIABILITY - Tenant agrees from time to time to look only to
Landlord's interest in the Building for satisfaction of any claim
against Landlord hereunder and not to any other property or assets of
Landlord. If Landlord from time to time transfers its interest in the
Building (or part thereof which includes the Premises), then from and
after each such transfer Tenant shall look solely to the interests in
the Building of each of Landlord's transferees for the performance of
all of the obligations of Landlord hereunder. The obligation of
Landlord shall not be binding on any partners (or trustees or
beneficiaries) of Landlord or of any successor, individually, but only
upon Landlord's or such successor's assets described above.
14.24. DELIVERY OF PREMISES - Landlord and Tenant agree that the Premises are
being leased on an "as is" basis. The renovations planned by Tenant are
attached as Exhibit B. The Tenant agrees to be responsible for:
1. Complete design (only design elements required for permits) of
all aspects of the space layout including but not limited to:
a. Partition layout
b. Reflected ceiling plans
c. Electrical and telephone
d. HVAC and sprinkler
e. Plumbing
2. Submission of all of the above to Landlord for approval.
Landlords approval will be on form only not functionality. It
is the Tenants responsibility to conform to all applicable
codes. Provided all required information is submitted, then
Landlord will provide its approval within five (5) business
days.
3. No field changes to any building system without Landlord's
prior written approval
4. Full compliance with insurance provisions of this Lease (See
Section 10.2)
5. Obtaining all necessary permits including occupancy permit and
providing copies of same to Landlord.
6. Waiver of lien certificates for all payments to all
contractors and subcontractors
7. Rubbish removal entirely from the site with separate dumpster
which location shall be approved by Landlord.
8. Protection and responsibility for repair, if damaged, of all
common areas of the Building and site.
14.25 Signage - The cost of all interior and exterior directory signage will
be the responsibility of the Tenant.
14.26 Hazardous Wastes - Tenant is responsible to maintain, at its expense,
good air quality free of obnoxious or harmful odors emanating from any
equipment or process. Should an air quality problem arise due to
Tenant's use of any equipment, Tenant will immediately cease to use
said equipment. Tenant will not reinstate use of the equipment until it
has been determined, to the Landlord's satisfaction, that the air
quality problem has been eliminated.
Tenant will install, at its expense, with Landlords permission, the
necessary equipment to
properly exhaust any fumes emitting from the Premises and provide for
any fresh air intake required to properly balance the system.
Tenant is also responsible for the storage and disposal of all
chemicals used in its equipment or process. Should any odoriferous
fumes emanate from the Tenant's premises, Tenant will immediately cease
using the offending chemical. Reuse of the chemical will occur only
after it has been determined by the Landlord that proper precautions
have been taken to insure that the chemical will no longer be offensive
or harmful to the building's air supply.
Tenant covenants not to use any portion of the Premises, Building or
Lot for the use, generation, treatment, storage or disposal of "oil",
"hazardous material", "hazardous waste", or "hazardous substances"
(collectively, the "Materials"), as such terms are defined under the
Comprehensive Environmental Response, Compensation and Liability Act,
42 U.S.C. S9601 et seq., as amended, the Resource Conservation and
Recovery act of 1976, 42 U.S.C. S6901 et seq., as amended, and the
regulations promulgated thereunder, and all applicable state and local
laws, rules and regulations, including, without limitation,
Massachusetts General laws, Chapters 21C and 21E (the "Superfund and
Hazardous Waste Laws"), or remove any Materials from the Property and
then only to the extent that the presence or removal of the Materials
is properly licensed and approved by all appropriate governmental
officials and in accordance with all applicable laws and regulations.
Tenant shall promptly provide Landlord with copies of all notices
received by Tenant, including, without limitation, any notice of
violations, notice of responsibility or demand for action, from any
federal state or local authority or official in connection with the
presence of materials in or about the Property or removal of materials
from the Property. In the event of any release of Materials by Tenant,
as defined in the Superfund and Hazardous Laws, caused by Tenant or its
employees, agents, contractors or invitees, Tenant shall promptly
remedy the problem in accordance with all applicable laws and
requirements and shall indemnify and hold the Landlord harmless from
and against all loss, costs, liability and damage, including attorneys'
fees and the cost of litigation, arising from the presence or release
of any Materials by Tenant in or on the Premises or removal of
materials from the Premises or Building. The provisions of this
paragraph shall survive the expiration or earlier termination of this
Lease.
14.27 Notwithstanding any provision contained herein, Tenant will be
responsible to keep the Premises in a neat, clean and orderly condition
free of excess refuse that could create fire or other hazards.
14.28 Notwithstanding any provisions contained herein, Tenant will use
reasonable efforts to minimize any situation that would give other
tenants or the public cause for concern and to keep deliveries and
other such matters reasonably invisible.
Witness the execution hereof, under seal, in any number of counterpart copies
shall be deemed an original for all purposes, as of the day and year first above
written.
Central Plaza/Xxxxx Avenue LLC TolerRx, Inc.
/s/ Xxxxxxx X. Xxx /s/ Xxxxxxx X. Xxxxxxx
------------------------------- -----------------------------
Xxxxxxx X. Xxx, President Xxxxxxx X. Xxxxxxx, President
EXHIBITS
Exhibit A Plan of Premises
Exhibit A-1 Access Locations within Premises
Exhibit B Plan of Renovations
Exhibit C Cleaning Specifications
Exhibit D Rules and Regulations
Exhibit E Lab Function Description
EXHIBIT "A"
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[DIAGRAM]
EXHIBIT "A"
2 of 2
[DIAGRAM]
EXHIBIT A-1
[DIAGRAM]
EXHIBIT C
CENTRAL PLAZA
CLEANING SPECIFICATIONS
CLEANING
Cleaning and janitor services as provided below:
A. OFFICE AREAS
Daily: (Monday through Friday, inclusive, holidays excepted).
1. Empty and clean all waste receptacles and ash trays and remove
waste material from the premises; wash receptacles as
necessary.
2. Sweep and dust mop all uncarpeted areas using a dust treated
mop
3. Vacuum all rugs and carpeted areas.
4. Hand dust and wipe clean with treated cloths all horizontal
surface; including furniture, office equipment, window xxxxx,
chair rails, counter tops, door ledges, baseboards, and grill
work, within normal reach.
5. Wash clean all water fountains and adjacent floor areas.
6. Upon completion of cleaning, all lights will be turned off and
all doors locked, leaving the premises in an orderly
condition.
Weekly:
1. Brush and hand dust all carpet edges or other areas in
accessible to vacuum attachments.
2. Remove all finger marks from private entrance doors, light
switches and doorways.
3. Dust all ventilating, air conditioning louvers, and grills.
Every Two Months or When Needed:
1. All resilient tile floors to be spray buffed.
2. Clean inside of all windows as needed.
3. Clean outside of all windows, weather permitting.
Quarterly:
1. Dusting of accessible surfaces not reached by daily cleaning.
2. Move and vacuum clean underneath all furniture that can
reasonably be moved.
Daily: (Monday through Friday, inclusive, holidays excepted).
1. Sweep and damp mop.
2. Wash and polish all mirrors, powder shelves, bright work,
fulshometers, piping, and toilet set hinges.
3. Wash both sides of all toilet seats.
4. Wash all basins, bowls, and urinals.
5. Dust all partitions, tile walls, dispensers, and receptacles.
6. Dust and clean all powder room fixtures.
7. Empty and clean paper towel and sanitary disposal receptacles.
8. Remove waste paper and refuse from the premises.
9. Refill tissue holders, soap dispensers, towel dispensers,
sanitary dispensers; materials to be furnished by landlord.
Monthly:
1. Machine scrub lavatory floors.
2. Wash all partitions and tile walls in lavatories.
C. MAIN LOBBIES, ELEVATORS, STAIRWELLS, AND COMMON CORRIDORS
Daily: (Monday through Friday, inclusive, holidays excepted).
1. Sweep and damp mop all floors; empty and clean waste
receptacles; dispose of waste.
2. Wash all rubber mats.
3. Clean elevators, wash or vacuum floors.
4. Clean any metal work inside lobbies.
5. Clean any metal work surrounding building entrance doors.
Monthly:
1. All resilient tile floors in public areas to be spray buffed.
D. RULES AND REGULATIONS
1. Smoking is prohibited within this building including without
limitation all common areas, stairwells, toilet rooms, tenant
space and any other area within the building;
2. The entrances, lobbies, passages, corridors, elevators,
halls, courts, sidewalks, vestibules, and stairways shall not
be encumbered or obstructed by Tenant, Tenant's agents,
servants, employees, licensees or visitors or be used by them
for any purposes other than ingress or egress to and from the
Premises.
3. The moving in or out of all sales, freight, furniture, or
bulky matter of any description shall take place during the
hours which Landlord may determine from time to time.
Landlord reserves the right to inspect all freight and bulky
matter to be brought into the Building and to exclude from
the Building all freight and bulky matter which violates any
of these Rules and Regulations or the Lease of which these
Rules and Regulations are a part. Landlord reserves the right
to have Landlord's structural engineer review Tenant's floor
loads on the Premises at Tenant's expense.
4. Tenant or the employees, agents, servants, visitors or
licensees of Tenant shall not at any time place, lease or
discard any rubbish, paper, articles, or objects of any kind
whatsoever outside the doors of the Premises or in the
corridors or passageways of the Building. No animals or birds
shall be brought or kept in or about the Building. Bicycles
shall not be permitted in the Building.
5. Tenant shall not place objects against glass partitions or
doors or windows or adjacent to any common space which would
be unsightly from the Building corridors or from the exterior
of the Building and will promptly remove the same upon notice
from Landlord.
6. Tenant shall not make noises, cause disturbances, create
vibrations, odors or noxious fumes or use or operate any
electrical devices or other devices that emit sound waves or
are dangerous to other tenants and occupants of the building
or that would interfere with the operation of any device or
equipment or radio or television broadcasting or reception
from or within the Building or elsewhere or with the operation
of roads or highways in the vicinity of the Building and shall
not place or install any projections, antennae, aerials, or
similar devices inside or outside of the Premises without the
prior written approval of Landlord.
7. Tenant may not (without Landlord's approval therefore, which
approval will be signified on Tenant's Plans submitted
pursuant to the Lease) and Tenant shall not permit or suffer
anyone to: (a) xxxx in the Premises; (b) place vending or
dispensing machines of any kind in or about the Premises; (c)
at any time sell, purchase or give away or permit the sale,
purchase, or gift of food in any form.
8. Tenant shall not: (a) use the Premises for lodging,
manufacturing or for any immoral or illegal purposes; (b) use
the premises to engage in the manufacture or sale of, or
permit the use of spirituous, fermented, intoxicating or
alcoholic beverages on the Premises; (c) use the Premises to
engage in the manufacture or sale of, or permit the use of,
any illegal drugs on the Premises.
9. No awning or other projections shall be attached to the
outside walls or windows. No curtains, blinds, shades, screens
or signs other than those furnished by Landlord shall be
attached to, hung in, or used in connection with any window or
door of the Premises without the prior written consent of
Landlord.
10. No signs, advertisement, object, notice or other lettering
shall be exhibited, inscribed, painted or affixed on any part
of the outside or inside of the Premises if visible from
outside of the Premises. Interior signs on doors shall be
painted or affixed for Tenant by Landlord or by sign painters
first approved by Landlord at the expense of Tenant and shall
be of a size, color and style acceptable to Landlord.
11. Tenant shall not use the name of the Building or use pictures
or illustrations of the Building in a advertising or other
publicity without the prior written consent of Landlord.
Landlord shall have the right to prohibit any advertising by
Tenant which, in Landlord's opinion, tends to impair the
reputation of the Building or its desirability for offices,
and, upon written notice from Landlord, Tenant will refrain
from or discontinue advertising.
12. Door keys for doors in the Premises will be furnished at the
commencement of the Lease by Landlord. No additional locks or
bolts of any kind shall be place upon any of the doors or
windows by Tenant, nor shall any changes be made in existing
locks or the mechanism thereof without the prior written
consent of Landlord. Tenant shall purchase duplicate keys only
from Landlord and will provide to Landlord the means of
opening of safes, cabinets, or vaults left on the Premises.
Upon the termination of its tenancy, Tenant must return to
Landlord all keys either furnished to or otherwise procured by
Tenant, and in the event of the loss of any keys so furnished
by Landlord, Tenant shall pay to Landlord the cost thereof.
13. Tenant assumes full responsibility for protecting its space
from theft, robbery and pilferage, which includes keeping
doors locked and other means of entry to the Premises closed
and secured.
14. Tenant shall not make any room-to-room canvass to solicit
business from other tenants in the Building and shall not
exhibit, sell or offer to sell, use, rent or exchange any item
or services in or form the Premises unless ordinarily embraced
within Tenant's use of the Premises as specified in its Lease.
Canvassing,
soliciting and peddling in the Building are prohibited, and
Tenant shall cooperate to prevent the same. Peddlers,
solicitors and beggars shall be reported to the office of the
Managing Agent of the Building.
15. Tenant shall not xxxx, paint, drill into, or in any way deface
any part of the Building or Premises. No boring, driving of
nails or screws, or cutting or stringing of wires shall be
permitted, except with the prior written consent of Landlord,
and as Landlord may direct. Tenant shall not install any
resilient tile or similar floor covering in the Premises
except with prior written approval of Landlord. The use of
cement or other similar adhesive material is expressly
prohibited.
16. Tenant shall not waste electricity or water and agrees to
cooperate fully with Landlord to assure the most effective
operation of the Building's heating and air conditioning and
shall refrain from attempting to adjust controls. Tenant shall
keep corridor doors closed except when being used for access.
17. The water and wash closets and other plumbing fixtures shall
not be used for any purpose other than those for which they
were constructed, and no sweepings, rubbish, rags, or other
substances shall be thrown therein.
18. Building employees shall not be required to perform, and shall
not be requested by any tenant or occupant to perform, any
work outside of their regular duties, unless under specific
instructions from the office of the Managing Agent of the
Building.
19. Tenant may request heating and/or air conditioning during
other periods in addition to normal working hours by
submitting its request in writing to the office of the
Managing Agent of the Building no later than 2:00 p.m. the
preceding work day (Monday through Friday). The request shall
clearly state the start and stop hours of the "off-hour"
service. Tenant shall submit to the managing Agent a list of
personnel authorized to make such request. The Tenant shall be
charged for such operation in the form of additional rent;
such charges are to be determined by the Managing Agent and
shall be fair and reasonable and reflect the additional
operating costs involved.
20. Prior to vacating the Premises upon lease termination, Tenant
shall remove at Tenant's expense any and all telephone wires,
computer cables, and equipment related thereto, installed by
Tenant for Tenant's use during occupancy of the Premises.
21. All wiring installed in the Tenant's Premises by Tenant or
Tenant's agents shall be done in compliance with the rules and
regulations of the State Building Code Commission.
22. Tenant shall become familiar with the proper use and handling
of all fire extinguishers provided by Landlord in Tenant's
Premises and shall be responsible
for the periodic inspection and maintenance of said
extinguishers in accordance with the manufacturer's
instructions.
23. In the event landlord is unable to deposit a check from Tenant
due to insufficient funds in Tenant's account, Landlord shall
charge Tenant as additional rent a $30 processing fee for the
uncollectible funds. In addition, until there are sufficient
funds available to allow Landlord to redeposit Tenant's check,
Landlord shall charge interest on the uncollectible funds in
accordance with the provisions of the Lease .
EXHIBIT E
LAB FUNCTION DESCRIPTION
The Tenant will be performing pharmaceutical research activities in its
laboratory areas. These functions include studying proteins as potential
pharmaceutical drug candidates by analyzing their behavior on other proteins,
interactions with cells and cell membranes, binding activities on cell receptors
by measuring the affinity of the protein for its receptor and the effect of this
binding on cellular functions, and manipulating DNA and cells to make proteins
that may be desirable as drugs. The assays to measure these parameters include
labeling the protein drug candidates with various enzyme or other markers (since
one can't see them with the naked eye) and studying how they interact with
various substrates by measuring enzyme activity (or other marker readouts) with
color assays or other assays for the marker. These substrates are usually
plastic plates 4-5 inches in length with multiple small xxxxx (usually 96 xxxxx
but this can vary) that have been treated with other proteins or cellular
products. Other assays use markers on proteins and cells such as fluorescence
tags and then passing the proteins and/or cells through specialized bench
equipment such as a fluorescence cell counter than can quantify these
fluorescence tags. The equipment in the laboratory will include computers,
specialized fluorescence and light measuring equipment, color measuring
equipment, hoods to keep specialized cells and fluids clean from the
environment, a fume hood to store and work with some laboratory reagents or
chemicals, incubators to store cells, refrigerators, and freezers.
