Exhibit 10.2
LEASE
BETWEEN
XXXXXXX X. XXXXXXXX, LANDLORD
AND
INSULET CORPORATION, TENANT
FOR THE PREMISES AT
0 XXX XXXX XXXXX, XXXXXXX, XX
LEASE
1. Identifications
This LEASE is made as of the 15th day of July, 2004 by and between Xxxxxxx
X. Xxxxxxxx ("Landlord") having an address 00 Xxxxx Xxxx, Xxxxxxx, XX 00000 and
Insulet Corporation (the "Tenant"), a Massachusetts corporation having address
at 000 Xxxxxxxx Xxxxxx, Xxxxxxx, XX 00000.
2. Lease; the Premises
In consideration of the Basic Rent, Additional Rent, and other payments and
covenants of the Tenant hereinafter set forth, and upon the following terms and
conditions, the Landlord hereby leases to the Tenant and the Tenant hereby
leases from the Landlord that certain parcel of land consisting of approximately
4.391 acres of land described as Lot 13 on Exhibit A attached hereto (the
"Property") known as 0 Xxx Xxxx Xxxxx, Xxxxxxx, XX and the building located
thereon as shown on Exhibit A (the "Building", and together with the Property
the "Premises").
3. Construction of Premises
Tenant shall accept occupancy of the Premises in "as is" condition as of
the commencement of its sublease of the Premises on October 1, 2004.
4. Term
The Terms of this Lease shall commence on May 1, 2006 (the "Term
Commencement Date") and shall expire, unless earlier terminated in accordance
with the terms hereof, at midnight September 30, 2009.
5. Use of the Premises; Licenses and Permits
The Tenant shall use the Premises only for offices, light manufacturing,
research and development, and related storage and warehousing as permitted under
applicable laws, by-law ordinances, codes, rules, regulations, orders and other
lawful requirements of governmental
bodies having jurisdiction. The Tenant, its subtenants, licensees, invitees and
any other users of the Premises shall apply in their own names for and obtain at
their own expense any and all licenses, permits and other approvals which may be
required from such governmental bodies in connection with any particular use of
the Premises during the Term.
6. Basic Rent; Additional Rent
During the Term, the Tenant shall pay Basic Rent to the Landlord at an
annual rate of $636,000.00 in monthly installments of $53,000.00. Basic Rent
shall be payable in advance on the 1st day of each month in equal installments
to the Landlord at the address set forth above or such other address as the
Landlord may thereafter specify by notice to the Tenant, without counterclaim,
set off, deduction, abatement or defense, except as otherwise expressly provided
herein.
This Lease is intended by the parties hereto to be a so-called "triple net"
lease and, to the end that the Basic Rent shall be received by the Landlord net
of all costs and expenses related to the Premises other than as expressly set
forth herein, the Tenant agrees to pay as Additional Rent, in addition to real
estate taxes, insurance premiums, utility costs, costs of repairs and
maintenance and other costs as specifically set forth herein, all other charges,
costs, expenses, and obligations of every kind an nature whatever as may relate
to this Lease or the operation or maintenance of the Premises and pro-rated
expenses for operation of Oak Park except as otherwise expressly agreed in this
Lease, including reasonable attorneys' fees incurred in the reasonable
enforcement of rights in pursuit of the remedies of the Landlord under this
Lease if Landlord prevails in any such Court action. The Landlord shall in each
case, at the time of demand for payment of any such Additional Rent, provide the
Tenant with evidence of the liability for such other charges, costs, expenses
and obligations.
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7. Taxes
The Tenant shall pay or cause to be paid to the Landlord (or, where
appropriate, directly to the authority by which the same are assessed or
imposed, with evidence of such payment to the Landlord) as Additional Rent not
later than ten (10) days prior to the date the same are due or twenty-one (21)
days after written notice thereof to the Tenant, whichever is later, all taxes
and excises upon the personal property and equipment of the Tenant located at
the Premises or the Property and all real estate taxes, betterments and special
assessments or amounts in lieu or in the nature thereof a pro-rata share of
operating expenses for Oak Park and any water or sewer use charges (and the
entire amount of any interest, penalties and costs attributable to delayed
payment thereof where such delay is the fault of the Tenant) which may now or
hereafter be levied, assessed or imposed by the United States of America, The
Commonwealth of Massachusetts, the Town of Bedford or any other authority, or
become a lien, upon all or any part of the Property, the Building, the Premises,
the use or occupation thereof, or upon the Landlord and the Tenant in respect
thereof, or upon the basis of rentals thereof or therefrom (except for the
Landlord's income, estate, gift or transfer taxes), or upon the estate hereby
created or upon the Landlord by reason of ownership of the reversion.
The Tenant shall, upon written notice from the Landlord that the same is
required by any Mortgagee (as defined in Paragraph 21 hereof), prepay to the
Mortgagee or the Landlord monthly as Additional Rent, in the same manner as
Basic Rent, one-twelfth (1/12) of the total of all such amounts as the Landlord
may from time to time reasonably estimate will be payable annually by the Tenant
under this Paragraph 7, which prepayments the Landlord agrees shall be
applied,without interest to such amounts as actually become payable. As soon as
any such amounts so payable are actually determined, appropriate adjustment of
any overpayments and underpayments shall be made.
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The Tenant shall have the right in its own name or in the name of the
Landlord to contest or review by legal proceedings or otherwise any such tax,
levy, charge or assessment. In such event the Tenant shall either pay such tax,
levy, charges or assessment (under protest, if necessary) or shall, if
requested, deposit with the Landlord in trust an amount sufficient to cover the
contested item together with any interest, penalties or costs as the Landlord
may reasonably require. The Tenant shall defend, indemnify and save the Landlord
harmless from and against and shall pay as Additional Rent (i) any such tax,
levy, charge or assessment that may be determined to be due and (ii) any and all
costs or expenses (including reasonable attorney's fees) the Landlord may incur
in connection with any such proceedings. When any such contested item shall have
been settled or paid, the balance of any sums deposited with the Landlord in
trust shall be repaid to the Tenant. The Tenant shall be entitled to share in
any refund or abatement, net of such costs and expenses, which may be made of
any tax, levy, charge or assessment in the same proportion that the same was
paid by the Tenant or with the Tenant's funds.
8. Insurance; Waivers of Subroagtion
The Tenant shall, at its own cost and expense, obtain and throughout the
Term shall maintain, insurance from companies qualified to do business in
Massachusetts and reasonably acceptable to the Landlord, for the benefit as
additional insureds of the Landlord and any Mortgagees as their respective
interests may appear, as follows:
(i) comprehensive general liability insurance against claims for
bodily injury, death or property damage occurring to, upon or about the
Premises, in limits of $1,000,000 for bodily injury or death and $500,000
for property damage or in such higher or lower limits as may result from
the operation of clause (iv) below:
(ii) boiler and machinery insurance on any steam boilers, pressure
vessels and pressure piping, rotating electrical machines, and
miscellaneous electrical apparatus,
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engines, pumps, and compressors, fans and blowers, with so-called "standard
blanket coverage" (15 HP and over) to a limit of $1,000,000;
(iii) insurance against lost rentals for a period of one year and
against loss or damage to the Improvements, and any other buildings,
structures and improvements from time to time constituting a part of the
Premises, such as may result from fire and such other casualties as are
normally covered by an "extended coverage" endorsement, in an amount equal
to the greater of (a) the replacement costs of the Improvements
constituting part of the Premises, or (b) an amount sufficient to preclude
any claim on the part of the insurer for co-insurance under the terms of
applicable policies. The term "replacement costs" shall mean the actual
costs of restoration (excluding foundation and excavation costs) as nearly
as practicable to a condition functionally equivalent and of equal value as
immediately prior to the casualty, and shall be redetermined by such
insurer every two years or at such more frequent intervals as the Landlord
may from time to time reasonably determine; and
(iv) at the written request of the Landlord, such other insurance
coverages and such additional coverage amounts as any Mortgagee may
reasonably require and as a prudent and reasonable owner would from time to
time carry on similar premises in view of any new risks arising or changes
of conditions (e.g., inflation) occurring during the Term.
At the commencement of the Term and thereafter not less than ten (10) days
prior to the expiration dates of the policies theretofore in effect,
certificates of the foregoing required insurance policies, issued by the
insurers, shall be delivered to the Landlord.
Neither the Landlord nor the Tenant shall be liable to the other for any
loss or damage to the Premises or other property or injury to or death of
persons occurring on the Premises or in
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any manner growing out of or connected with the Tenant's use and occupation of
the Premises or the condition thereof, whether or not caused by the negligence
or other fault of the Landlord, the Tenant or their respective agents,
employees, subtenants, licensees, invitees or assignees; provided, however, that
this release (i) shall apply only to the extent that such loss or damage to the
Premises or other property or injury to or death of persons is covered by
insurance which protects the Landlord, or the Tenant or both of them as the case
may be; (ii) shall not be construed to impose any other or greater liability
upon either the Landlord or the Tenant than would have existed in the absence
hereof; and (iii) shall be in effect only so long as the applicable insurance
policy contains a clause to the effect that this release shall not affect the
right of the insureds to recover under such policies, which clauses shall be
obtained by the parties hereto whenever available at reasonable expense.
9. Utilities
The Tenant shall, at its own cost and expense, arrange and pay for all
services and utilities provided to the Premises during the Term, including
without limitation, water, electricity, fuel, steam, heat, air conditioning,
sewer service, telephone service, security and fire protection, cleaning and
trash removal, and snow and ice removal.
10. Repairs
From and after the commencement of the Term, the Landlord shall, at his own
cost and expense, make all repairs necessary to keep the structural support
elements (which term shall include the footings and foundations, floor slab,
structural columns, planking beams, girders and roof of the Building) in
structurally good condition, order and repair, excepting only any damage
resulting from any acts and any omissions of the Tenant or its agents,
contractors and employees, from fire or other casualty and from eminent domain
takings. The Landlord shall also make all repairs to portions of the Premises
which are
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otherwise the responsibility of the Tenant to repair if the same require repair
by reason of the failure of elements of the Premises which are the
responsibility of the Landlord and if such failure was in no way attributable to
the act or omission of the Tenant, its agents, employees or contractors. The
party from time to time having the responsibility for repair of any portion of
the Premises shall have (and, to the extent necessary to effectuate this
paragraph the Landlord hereby assigns to the Tenant) the benefit of all
warranties and guarantees from manufacturers, suppliers and subcontractors whose
products or services are or may be incorporated into the Premises; Landlord will
separately assign to Tenant all such warranties and guaranties relating to
portions of the Premises for which Tenant has the responsibility for repair and
at the request of the Tenant, the Landlord will furnish the Tenant with original
signed counterparts of any contracts for construction. Any repairs or
replacements to the roof, parking area and HVAC system which are capital in
nature shall be made by the Landlord and the cost shall be amortized over their
useful life in accordance with generally accepted accounting principles at an
interest rate of 8%. Tenant shall reimburse Landlord on a monthly basis as
Additional Rent its pro rata share of such amortization of cost during its Term
and any extension.
The Tenant shall, at its own cost and expense, make all other
non-structural repairs, exterior and interior, necessary to keep the Premises,
including the sidewalks, curbs, and driveways adjoining the Premises and all
electrical, mechanical, sprinklers, plumbing, heating, air conditioning and
other building systems serving the Premises in as good condition, order and
repair as the same are at the commencement of the Term or thereafter may be put,
excepting only repairs which are the obligation of the Landlord hereunder and
damage resulting from any acts and omissions of the Landlord or its
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agents, contractors and employees, from fire or other casualty and from eminent
domain takings, and shall keep and maintain all portions of the Premises and the
sidewalks and driveways adjoining the same in a clean and orderly condition,
free of accumulations of dirt, rubbish, snow and ice.
11. Compliance with Laws and Regulations
The Tenant agrees that its obligations to make payment of the Basic Rent,
Additional Rent and all other charges on its part to be paid, and to perform all
of the covenants and agreements on its part to be performed during the Term
hereunder shall not be affected by any present or future law, by-law, ordinance,
code, rule, regulation, order or other lawful requirement regulating or
affecting the use which may be made of the Premises or the Property.
During the Term the Tenant shall comply, at its own cost and expense, with:
all applicable laws, by-laws, ordinances, codes, rules, regulations, orders and
other lawful requirements of the governmental bodies having jurisdiction whether
or not foreseeable, and whether or not they involve any changes in governmental
policy, which are applicable to the Premises, the fixtures and equipment
therein, or the Tenant's particular use thereof, the order, rules and
regulations of the National Board of Fire Underwriters, or any other body
hereafter constituted exercising similar functions, which may be applicable to
the Premises, the fixtures and equipment therein or the use thereof; and the
requirements of all policies of public liability, fire and all other types of
insurance at any time in force with respect to the Premises, the Building or the
Property and the fixtures and equipment therein and thereon.
12. Alterations by Tenant
The Tenant shall make no alterations or improvements in or to any portion
of the Premises or any portion of the Building or the Property without the
Landlord's prior written
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consent and without first providing the Landlord with suitable assurance of the
Tenant's obligation to complete the same at no expense to the Landlord and
without any mechanics' or materialmen's lien upon the Property. The Landlord
agrees that his consent shall not be unreasonably withheld or delayed for
interior, non-structural alterations, additions and improvements to the Premises
consistent with the use of the Premises as contemplated hereby; any such
consents to interior, non-structural alterations, additions and improvements
may, if the Landlord so advises the Tenant as part of or by notice at the time
of any such consent, be conditioned upon the Tenant's being obligated to remove
the same at the expiration or termination of this Lease and to restore the
Premises to their condition prior to such alterations, additions and
improvements. Tenant shall have no responsibility to restore the Premises for
any alterations, additions or improvements made prior to July 1, 2004. Tenants
shall have the right at Tenant's expense to install one (1) exterior sign on the
building in a location mutually acceptable to Landlord and Tenant. Tenant shall
be solely responsible for procuring all requisite permits and approvals.
13. Landlord's Access
The Tenant agrees to permit the Landlord and any Mortgagees and their
authorized representatives to enter the Premises at all reasonable times during
usual business hours after reasonable oral notice and accompanied by Tenant's
representative for the purposes of inspecting the same, exercising such other
rights as it or they may have hereunder or under any mortgagees and at any time
without notice in the event of emergency. Such rights of access shall not
unreasonably interfere with Tenant's business operations.
14. Indemnities
The Tenant agrees to protect, defend (with counsel approved by the
Landlord), indemnify and save the Landlord harmless from and against any and all
claims (other than claims arising
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from any omission, fault, negligence or other misconduct of the Landlord or its
agents or employees in or about the Premises, the Building or the Property)
arising: (i) from the conduct of its operations done in or about the Premises
during the Term; and from any condition existing in the Premises, or any injury
to or death of persons or damage to property occurring during the Term, or
resulting from an occurrence during the Term, in or about the Premises, and (ii)
at any time after the date hereof, and without regard to the expiration or
termination of the Term, from any breach or default on the part of the Tenant in
the performance of any covenant or agreement on the part of the Tenant to be
performed pursuant to the terms of this Lease or from any negligent act or
omission on the part of the Tenant or any of its agents, employees, subtenants,
licensees, invitees, or assignees. The Tenant further agrees to indemnify the
Landlord from and against all costs, expenses, including reasonable attorneys'
fees and other liabilities incurred in connection with any such indemnified
claim or action or proceeding brought thereon, any and all of which, if
reasonably suffered, paid or incurred by the Landlord, the Tenant shall repay
upon demand to the Landlord as Additional Rent.
15. Casualty Damage
Except as provided below, in the event of partial or total destruction of
the Premises and any other buildings, structures and improvements from time to
time constituting a part of the Premises during the Term by fire or other
casualty, the Landlord shall as promptly as practicable after receipt of any
insurance proceeds available as a result of such casualty repair, reconstruct or
replace the portions of the Premises destroyed as nearly as possible to their
condition prior to such destruction, except that in no event shall the Landlord
be obligated to expend more for such repair, reconstruction or replacement than
the amounts of any such insurance proceeds actually received From and after the
date of such destruction and through the period of such repair,
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reconstruction and replacement there shall be an equitable abatement of Basic
Rent hereunder in proportion to the nature and extent of the destruction.
If the Premises and any other buildings, structures and improvements from
time to time constituting part of the Premises are so extensively destroyed by
fire or other casualty that the Premises and any other buildings, structures and
improvements from time to time constituting part of the Premises are not
susceptible of repair, reconstruction or replacement within six (6) months from
the date work commences thereon, or if such destruction resulted from causes or
risks not required to be insured against by the Tenant hereunder, or if any
Mortgagee refuses to make such proceeds available and the Landlord gives notice
to the Tenant that the Landlord will not make an equivalent amount available for
such purposes, either the Landlord or Tenant may terminate this Lease by giving
written notice to the other within thirty (30) days after the date of such
destruction (or if applicable, within thirty (30) days after such notice from
the Landlord), in which event this Lease shall automatically terminate and Basic
Rent, and Additional Rent shall be appropriately apportioned through and abated
from and after the date of such destruction.
16. Condemnation
If all or substantially all of the Premises shall be taken or appropriated
by any public authority, or if more than twenty-five percent (25%) of the
tenantable floor area or of the parking areas of the Improvements shall be so
taken or appropriated and either the Landlord or the Tenant, within sixty (60)
days after it first receives notice of such taking, gives written notice to the
other to such effect, this Lease shall terminate as of the date the Tenant must
surrender possession or, if later, the date the Tenant actually surrenders
possession, and the Basic Rent and Additional Rent reserved shall be apportioned
and paid to and as of such date.
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The Landlord hereby reserves, and the Tenant hereby assigns to the
Landlord, any and all claims to the entirety of any damages or other
compensation by way of damages which may be awarded in connection with any such
taking or appropriation.
If a part only of the Premises is taken or appropriated by public authority
as aforesaid and neither the Landlord nor the Tenant terminates this Lease as
set forth above, the Landlord shall, subject to the rights of any Mortgagee,
secure and close so much of the Improvements and any other buildings, structures
and other improvements constituting a part of the Premises as remain and shall,
to the extent possible, replace any part so taken or appropriated by a suitable
structure of addition of similar size and design to the improvements so taken or
appropriated, except that in no event shall the Landlord be obligated to expend
more for such replacement than the amount of any damages, compensation or award
which the Landlord may actually receive as damages in respect of such
improvements as they existed immediately prior to such taking or appropriation;
in such event there shall be an equitable abatement of Basic Rent, in proportion
to the reduced fair rental value of the Premises, from and after the date the
Tenant must surrender possession or, if later, the date the Tenant actually
surrenders possession thereof.
17. Landlord's Covenant of Quiet Enjoyment
The Landlord covenants that the Tenant, upon paying the Basic Rent and
Additional Rent and performing and observing all of the other covenants and
provisions hereof, may peacefully and quietly hold and enjoy the Premises for
the Term as aforesaid, subject, however, to all of the terms and provisions of
this Lease.
18. Tenant's Obligation to Quit
The Tenant shall, upon expiration of the Term or other termination of this
Lease, leave and peaceably and quietly surrender and deliver to Landlord the
Premises and all improvements, building equipment and fixtures thereon and any
replacements or renewals thereof in as good
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condition, order and repair as the same are required to be kept by the Tenant
pursuant to Paragraph 10 hereof, except, however, that the Tenant may first
remove any trade fixtures, equipment and other personal property of the Tenant
and shall first remove any other alterations, additions and improvements which
the landlord has required be removed pursuant to the terms of Paragraph 12
hereof or, at the option of the Landlord, which were made without the consent of
the Landlord pursuant to the terms of Paragraph 12 hereof, restoring the
Premises in each case to as nearly as reasonably possible their condition prior
to the installation of such fixtures or the undertaking of such alternations,
additions or improvements, as the case may be, giving effect, however, to the
overall condition of the balance of the Premises as required at the time of such
restoration. Tenant shall have no responsibility to restore the Premises for any
alterations, additions or improvements made prior to July 1, 2004.
19. Transfers of Tenant's Interest
Except in instances of Assignment or subletting to a successor of Tenant
resulting from a merger or consolidation of Tenant or resulting from the sale of
substantially all of the assets of Tenant and any entity under the common
control of Tenant, the Tenant shall not assign or sublease or otherwise encumber
all or any part of its interest in this Lease, the Premises, or the estate
hereby created, nor shall it grant any licenses, concessions or the like, to
unaffiliated third parties without in each case first obtaining the proper
written consent of the Landlord, which consent shall not be unreasonably
withheld or delayed. Any attempted sublease or assignment without the required
consent of the Landlord shall be void.
In all events the Tenant originally named herein and any guarantor of the
obligations of the Tenant under this Lease shall remain primarily liable for,
and any sublessee or assignee shall in writing assume, the obligations of the
Tenant under this Lease, and the Landlord may condition the consent to any
sublease or assignment upon the Tenant's agreeing to pay to the
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Landlord fifty percent (50%) of the amount by which any rentals and other
amounts from time to time paid to or for the benefit of the Tenant thereunder
exceed the Basic Rent, Additional Rent and Tenant's reasonable costs related to
such sublease or assignment.
20. Transfers of Landlord's Interest
The Landlord shall have the right from time to time to sell or mortgage its
interest in the Property, the Building and the Premises, to assign its interest
in this Lease, or to assign from time to time the whole or any portion of the
Basic Rent, Additional Rent or other sums and charges at any time paid or
payable hereunder by the Tenant to the Landlord, to any Mortgagees or other
transferees designated by the Landlord in duly recorded instruments, and in any
such case the Tenant shall pay the Basic Rent, Additional Rent and such other
sums and charges so assigned, subject to the term of the Lease, upon demand to
such Mortgagees and other transferees at the addresses mentioned in and in
accordance with the terms of such instruments provided the Tenant has been
notified of such transfer and provided with such addresses.
21. Mortgagees' Rights
The Tenant hereby agrees that this Lease is and shall be subject and
subordinate to any mortgage (and to any amendments, extensions, increases,
refinancing or restructuring thereof) of the Property, the Building or the
Premises, whether or not such mortgage is filed subsequent to the execution,
delivery or the recording of this Lease or any notice hereof (the holder from
time to time of any such mortgage being in this Lease sometimes called the
"Mortgagee"). The foregoing subordination shall be self-operative and
automatically effective as to any mortgage filed subsequent to the execution and
delivery hereof but only if either the Mortgagee agrees in writing or such
mortgage provides that, for so long as there exists no default under this Lease
by the Tenant not cured within applicable periods of notice and grace, the
Mortgage will be bound by the terms of this Lease and will not, in foreclosing
against or taking possession of the
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Premises or otherwise exercising its rights under such mortgage, disturb the
Tenant's possession of the Premises hereunder or words of similar import. The
Tenant hereby agrees to execute, acknowledge and deliver in recordable form such
instruments confirming and evidencing the foregoing subordination as the
Landlord or any such Mortgagee may from time to time reasonably require.
Provided that the Tenant has been provided with notice of such mortgage and
appropriate addresses to which notice should be sent, no notice from the Tenant
of any default by the Landlord in its obligations shall be valid, and the Tenant
shall not attempt to terminate this Lease, withhold Basic Rent or Additional
Rent or exercise any other remedy which may arise by reason of any such default,
unless the Tenant first gives such notice to all Mortgagees and provides such
Mortgagees with reasonable time after such notice to cure such default. The
Tenant shall and does hereby agree, upon default by the Landlord under any
mortgage, to attorn to and recognize the Mortgagee or anyone else claiming under
such mortgage, including a purchaser at a foreclosure sale, at its request as
successor to the interest of the Landlord under this Lease, to execute,
acknowledge and deliver in recordable form such evidence of this attornment,
which shall nevertheless be self-operative and automatically effective, as the
Mortgagee or such successor may request and to make payments of Basic Rent and
Additional Rent hereunder directly to the Mortgagee or any such successor, as
the case may be, upon request. Any Mortgagee may, at any time, by giving written
notice to, and without further consent from, the Tenant, subordinate its
mortgage to this Lease, and thereupon the interest of the Tenant under this
Lease shall automatically be deemed to be prior to the lien of such mortgage
without regard to the relative dates of execution, delivery or recording thereof
or otherwise.
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22. Tenant's Default-Landlord's Remedies
If the Tenant shall default in the payment of any Basic Rent or Additional
Rent and such default shall continue for ten (10) days after written notice from
the Landlord; or if the Tenant shall default in the performance or observance of
any of the other covenants contained in these presents and on the Tenant's part
to be performed or observed and shall fail, within thirty (30) days after
written notice form the Landlord of such default, to cure such default or if
such default is not susceptible of cure within said thirty (30) day period,
promptly to make provision for such cure and thereafter to pursue such cure
diligently to completion; or if the estate hereby created shall be taken on
execution, or by other process of law; or if the Tenant shall be involved in
financial difficulties as evidenced:
(1) by its commencement of a voluntary case under Title 11 of the United
States Code as from time to time in effect, or by its authorizing, by
appropriate proceeding of trustees or other governing body the
commencement of such voluntary case,
(2) by its filing an answer or other pleading admitting or failing to deny
the material allegations of a petition filed against it commencing an
involuntary case under said Title 11, or seeking, consenting to or
acquiescing in the relief therein provided, or by its failing to
controvert timely the material allegations of any such petition,
(3) by the entry of an order for relief in any involuntary case commenced
under said Title 11,
(4) by its seeking relief as a debtor under any applicable law, other than
said Title 11, of any jurisdiction relating to the liquidation or
reorganization of debtors or to the modification or alteration of the
rights of creditors, or by its consenting to or acquiescing in such
relief,
(5) by the entry of an order by a court of competent jurisdiction (i)
finding it to be bankrupt or insolvent, (ii) ordering or approving its
liquidation, reorganization or any modification or alteration of the
right of its creditors, or (iii)assuming custody of, or appointing a
receiver or other custodian for, all or a substantialpart of its
property, or
(6) by its making an assignment for the benefit of, or entering into a
composition with, its creditors, or appointing or consenting to the
appointment of a receiver or other custodian for all or a substantial
part of its property;
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then and in any of said cases, the Landlord may, to the extent permitted by law,
immediately or at any time thereafter and with reasonable demand and notice,
terminate this Lease and enter into and upon the Premises, or any part thereof
in the name of the whole, and repossess the same as of the Landlord's former
estate, and expel the Tenant and those claiming through or under the Tenant and
remove its effects 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 preceding breach of covenant.
No termination or repossession provided for in this Paragraph 22 shall
relieve the Tenant or any guarantor of the obligations of the Tenant under this
Lease of its liabilities and obligations under this Lease, all of which shall
survive any such termination or repossession. In the event of any such
termination or repossession, the Tenant shall pay to the Landlord either (i) in
advance on the first day of each month, for what would have been the entire
balance of the Term, one-twelfth (1/12) (and a pro rata portion thereof for any
fraction of a month) of the Basic Rent, Additional Rent and all other amounts
for which the Tenant is obligated hereunder, less, in each case, the actual net
receipts by the Landlord by reason of any reletting of the Premises after
deducting the Landlord's reasonable expenses in connection with such reletting,
including, without limitation, removal, storage and repair costs and reasonable
brokers' and attorneys' fees, or (ii) at the option of the Landlord exercisable
by the Landlord's giving notice to the Tenant within thirty (30) days after any
such termination, the present value (computed at a capitalization rate based
upon the so-called corporate "Base Rate" then in effect at Bank of America) of
the amount by which the payments of Basic Rent and the Additional Rent
reasonably estimated to be payable for the balance of the Term after the date of
the exercise of said option would exceed the payments reasonably estimated to be
the fair rental value of the Premises on the terms and
17
conditions of this Lease over such period, determined as of such date. Landlord
shall use reasonable efforts to relet the Premises for the reasonable rental
value thereof and to collect the rent under such reletting but Landlord shall
not be liable for failure to relet the Premises or in the event that the
Premises are relet for failure to collect the rent under such reletting.
Without thereby affecting any other right or remedy of the Landlord
hereunder, the Landlord may, at its option, cure for the Tenant's account any
default by the Tenant hereunder which remains uncured after said thirty (30)
days' notice of default from the Landlord to the Tenant, and the cost to the
Landlord of such cure shall be deemed to be Additional Rent and shall be paid to
the Landlord by the Tenant with the installment of Basic Rent next accruing.
23. Remedies Cumulative; Waivers; Attorney's Fees
The specific remedies to which the Landlord or the 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 the Landlord or the Tenant may
be lawfully entitled under any provision of this Lease or otherwise. The failure
of the Landlord or the Tenant to insist in any one or more cases upon the strict
performance of any of the covenants of this Lease, or to exercise any option
herein contained, shall not be construed as a waiver or relinquishment for the
future of such covenant or option. A receipt by the Landlord, or payment by the
Tenant, of Basic Rent or Additional Rent with knowledge of the breach of any
covenant hereof shall not be deemed a waiver of such breach, and no waiver,
change, modification or discharge by the Landlord or the Tenant of any provision
in this Lease shall be deemed to have been made or shall be effective unless
expressed in writing and signed by an authorized representative of the Landlord
or the Tenant as appropriate. In addition to the other remedies in this Lease
provided, the Landlord or the Tenant shall be entitled to the restraint by
injunction of the covenants, conditions or
18
provisions. If either party brings an action to enforce the terms hereof or
declare rights hereunder, the prevailing partyin such action, on trial or
appeal, shall be entitled to its reasonable attorney's fees to be paid by the
losing party as fixed by the court.
24. Broker
The Landlord shall pay to Xxxxxxxx & Grew, Incorporated and Xxxxxxxx Xxxx
Company, the brokers for this Lease, the commission owed in connection with this
Lease. The Tenant warrants and represents that Xxxxxxxx & Grew, Incorporated and
Xxxxxxxx Xxxx Company are the only brokers (other than Xxxxxxxx Xxxxx Xxxxx &
Partners with respect to the Sublease from Corning Photonics, Inc.) it has dealt
with in connection with the Premises or this Lease.
25. Extension of Term
The Tenant shall have the right, as its sole option, by in each instance
giving notice thereof to the Landlord at least nine (9) and not more than
fifteen (15) months prior to the expiration of the then existing Term, to extend
the Term of this Lease for two (2) additional successive periods of five (5)
years each (commencing upon the expiration of the initial ten-year term to a
maximum twenty-year Term) on the same terms and conditions, except Basic Rent,
as herein set forth. The failure to give such notice in a timely fashion shall
be deemed an irrevocable election on the part of the Tenant not to exercise such
extension option and a waiver of any successive option.
The Basic Rent during each such extended period shall be ninety-five
percent (95%) of the fair market net rental for the Premises determined as of
the commencement of such extended period. If the Landlord and the Tenant are
unable to agree upon the Basic Rent for either such extended period at least
eight (8) months prior to its commencement, the Basic Rent for such period shall
be determined by appraisal as hereinafter provided. Within thirty (30) days
after the
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date for commencement of appraisal proceedings pursuant to the provisions of
this Paragraph 25, the Landlord and the Tenant shall each simultaneously give
written notice to the other setting forth its "best offer" for such annual rate
of Basic Rent and designating an Appraiser (as that term is hereinafter
qualified and defined). The two Appraisers so designated shall, within twenty
(20) days after their designation, select a third Appraiser and give notice to
both the landlord and the Tenant identifying the third Appraiser. The three
Appraisers shall within sixty (60) days after the selection of the third
Appraiser report to the Landlord and the Tenant in writing, informing them of
the annual rate of Basic Rent determined by them, or by a majority of them, to
be payable by the Tenant to the Landlord for the Premises during such 5-year
extended period. The Appraiser's report shall be accompanied by an explanation
of the method used to arrive at the value or values assigned and the pertinent
date (or a summary thereof) considered by the Appraisers in reaching their
decision. All expenses of the appraisal process (including Appraisers' fees)
shall be payable by the party whose "best offer" set forth in the notice as
above provided varied the most from the annual rate of Basic Rent established in
the Appraisers' report. The Appraisers shall not be informed by either party as
to the "best offer" of either or as to the provisions of this paragraph with
respect to the allocation of expenses of the appraisal process. An "Appraiser"
shall be a person who as an MAI (Member of the Appraisal Institute) designation,
is independent of the Landlord and the Tenant, and has at least eight (8) years'
experience in appraising commercial and industrial real estate in suburban
Boston and vicinity.
Notwithstanding the foregoing procedure, in no event will the Basic Rent be
less than $636,000.00 per year.
26. Notices
Any notices, approvals, specifications or consents required or permitted
hereunder shall be in wiring and mailed, postage prepaid, by registered or
certified mail, return receipt
20
requested, if to the Landlord or to the Tenant at the address set forth herein
for each or after the Term Commencement Date, to the Tenant at the Premises, and
if to any Mortgagee at such address as it may specify by such notice to the
Landlord and the Tenant, or at such other address as any of them may from time
to time specify by like notice to the others. Any such notice shall be deemed
given when received or, if earlier, when postal records indicate delivery was
first attempted.
27. Recording
The Landlord and the Tenant hereby agree, each at the request of the other
or of any Mortgagee, promptly to execute, acknowledge and deliver in recordable
from short forms or notices of lease and notices of assignments or rents and
profits containing the date of commencement of the Term and such other
information as may from time to time be necessary under the applicable statutes
for the protection of any interest of the Landlord, the Tenant or any Mortgagee
in the Premises of this Lease.
28. Estoppel Certificates
The Landlord and the Tenant hereby agree from time to time, each after not
less than ten (10) days' prior written notice from the other or any Mortgagee,
to execute, acknowledge and deliver, without charge, to the other party, the
Mortgagee or any other person designated by the other party, a statement in
writing certifying: that this Lease is unmodified and in full force and effect
(or if there have been modifications, identifying the same by the date thereof
and specifying the nature thereof); that to the knowledge of such party there
exist no defaults (or if there be any defaults, specifying the same); the amount
of the Basic Rent, the dates to which the Basic Rent, Additional Rent and other
sums and charges payable hereunder have been paid; and that such party to its
knowledge has no claims against the other party hereunder except for the
21
continuing obligations under this Lease (or if such party has any such claims,
specifying the same).
29. Bind and Inure: Limited Liability of Landlord
All of the covenants, agreements, stipulations, provisions, conditions and
obligations herein expressed and se forth shall be considered as running with
the land and shall extend to, bind and insure to the benefit of the Landlord and
the Tenant, which terms as used in this Lease shall include their respective
successors and assigns where the context hereof so admits.
The Landlord shall not have any individual or personal liability for the
fulfillment of the covenants, agreements and obligations of the Landlord
hereunder, the Tenant's recourse and the Landlord's liability hereunder being
limited to the Property and the Building. The term "Landlord" as used in this
Lease shall refer only to the owner or owners from time to time of the Property
or the Building, it being understood that no such owner shall have any liability
hereunder for matters arising from and after the date such owner ceases to have
any interest in the Property or the Building.
In no event shall the Landlord be liable to the Tenant for any special,
consequential or indirect damages suffered by the Tenant or any other person or
entity by reason of a default by the Landlord under any provisions of this
Lease.
30. Captions
The captions for the numbered Paragraphs of this Lease are provided for
reference only, and they do not constitute a part of this agreement or any
indication of the intentions of the parties hereto.
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31. Integration
The parties acknowledge that all prior written and oral agreements between
them and all prior representations made by either party to the other have been
incorporated in this instrument or otherwise satisfied prior to the execution
hereof.
32. Hazardous, Toxic Substances
The term "Hazardous Substances", as used in this Paragraph, shall include,
without limitation, flammables, explosives, radioactive materials, asbestos,
polychlorinated biphenyl's (PCB's), chemicals known to cause cancer or
reproductive toxicity, pollutants, contaminants, hazardous wastes, toxic
substances or related materials, petroleum and petroleum products, and
substances declared to be hazardous or toxic under any law or regulation now or
hereafter enacted or promulgated by any governmental authority. Tenant shall not
cause or permit to occur:
(a) Any violation of any federal, state, or local law, ordinance, or
regulation now or hereafter enacted, related to environmental conditions, under,
or about the Premises arising from Tenant's use or occupancy of the Premises,
including, but not limited to, soil and ground water conditions; or
(b) The use, generation, release, manufacture, refining, production,
processing, storage, or disposal (including, without limitation, any by-products
of Tenant's manufacturing operations) of any Hazardous Substance on, under, or
about the Premises, or the transportation to or from the Premises of any
Hazardous Substance, except for such substances and materials which are
typically used in connection with the operation of the Property for the purposes
permitted under this lease and which shall be used, stored, handled and disposed
of both individually and in the aggregate solely in accordance with all
applicable Laws.
23
In furtherance of Tenant's obligations under this Lease and not in
limitation thereof, Tenant covenants and agrees as follows:
(c) Tenant shall, at Tenant's expense, comply with all laws regulating the
use, generation, storage, transportation, or disposal of Hazardous Substances
relating to the Premises (the "Laws").
(d) Tenant shall, at Tenant's expense, make all submissions to, provide all
information required by, and comply with all requirements of all governmental
authorities (the "Authorities") under the Laws.
(e) If Landlord or any Authority or any third party based on a violation of
Laws demands that a clean-up be undertaken because of any deposit, spill,
discharge, or other release of Hazardous Substances that occurs during the Term,
at or from the Premises and is caused by Tenant's action or omission, then
Tenant shall, at Tenant's expense, prepare and submit the required plans and all
related bonds and other financial assurances; and Tenant shall carry out all
work required by such clean-up plans.
(f) Tenant shall promptly provide all information regarding the use,
generation, storage, transportation or disposal of Hazardous Substances that is
requested by Landlord. If Tenant fails to fulfill any duty imposed under this
Paragraph, within a reasonable time, Landlord may do so; and in such case,
Tenant shall cooperate with Landlord in order to prepare all documents Landlord
deems necessary or appropriate to determine the applicability of the Laws to the
Premises and Tenant's use thereof, and for compliance therewith, and Tenant
shall execute all documents promptly upon Landlord's request. No such action by
Landlord and no attempt made by Landlord to mitigate damages under any Law shall
constitute a waiver of any of Tenant's obligations under this Paragraph.
24
Tenant shall indemnify, defend, and hold harmless Landlord and its
officers, directors, shareholders and all of their respective agents and
employees from all fines, suits, procedures, claims, and actions of every kind
and all costs, associated therewith (including attorneys and consultants fees)
arising out of or in any way connected with any deposit, spill, discharge, or
other release of Hazardous Substances caused by Tenant's action or omission that
occurs during the Term at or from the Premises, or from Tenant's failure to
provide all information, make all submissions, and take or refrain from taking
all actions required by all Authorities under the Laws and all other
environmental laws. Tenant's obligations and liabilities under this Paragraph
shall survive the expiration or termination of this Paragraph.
Tenant shall not be responsible under this Lease in any respect whatsoever
for any condition involving Hazardous Substances which may exist as of the date
of execution and delivery of this Lease or which was not caused by Tenant.
33. Severability; Choice of Law
If any provision of this Lease shall be declared to be void or
unenforceable either by law or by a court of competent jurisdiction, the
validity or enforceability of remaining provisions shall not thereby be
affected.
This Lease is made under, and shall be construed in accordance with, the
laws of the Commonwealth of Massachusetts,.
34. Security Deposit
Tenant shall place a Security Deposit of $300,000.00 (either in the form of
a Letter of Credit or cash) within sixty (60) days after the execution of this
Lease which shall be reduced to $200,000.00 on December 31, 2006 if the Tenant
is not in default hereunder at that time and shall be further reduced to
$100,000.00 on November 1, 2008 if the Tenant is not in default hereunder at
that time. The Security Deposit shall be returned to Tenant within 30 days of
the
25
Termination of the Lease so long as Landlord has no legitimate claim hereunder
to all or a portion of same.
35. Financial Statements
Upon request, in connection with a sale or refinancing of this Building,
Tenant shall provide to Landlord its most recent financial statements, provided
Landlord executes an appropriate confidentiality agreement.
26
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed in duplicate under seal as of the date first above written.
Landlord:
XXXXXXX X. XXXXXXXX
/s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------
Tenant:
INSULET CORPORATION
/s/ Xxxxx XxXxxxx
----------------------------------------
Its: Chief Executive Officer
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EXHIBIT A
A certain parcel of land situated in the Town of Bedford, County of Middlesex,
Commonwealth of Massachusetts, known as Lot 13, as shown on L.C.C. 113451 and
more particularly described as follows:
BEGINNING: at the southeasterly corner of said parcel, same point being at lot
12 and Oak Park Drive as shown on said plan;
THENCE: running N86 degrees -32'-56"W one hundred thirty-three and 45/100
(133.45) feet to a point;
THENCE: turning and running S71 degrees -25'-05"W four hundred eighty and
96/100 (480.96) feet to a point;
THENCE: turning and running S46 degrees -16'-28"W one hundred thirty-three
(133.00) feet to a point;
THENCE: turning and running N43 degrees -43'-32"W one hundred fifty
(150.00) feet to a point on a stonewall;
THENCE: turning and running N46 degrees -16'-28"E two hundred three and
28/100 (203.28) feet to a drillhole;
THENCE: turning and running N45 degrees -26'-02"E four hundred sixty-two
and 62/100 (462.62) feet to a point at lot 14;
THENCE: turning and running S56 degrees -36'-30"E three hundred
ninety-three and 02/100 (393.02) feet to a point of curvature;
THENCE: by a curved line to the right having an arc of thirty-nine and
27/100 (39.27) feet and a radius of twenty-five (25.00) feet to a
point of reverse curvature at Oak Park Drive;
THENCE: turning and running along Oak Park Drive by a curved line to the
left having an arc of ninety (90.00) feet and a radius of one
hundred forty (140.00) feet to the point of beginning.
Containing 191,262 square feet or 4.391 acres, more or less.
Said parcel is subject to easements and restrictions of record.
