Exhibit 10.3
SHORT FORM
LEASE
TRUSTEES OF THE CAMBRIDGE EAST TRUST
TO
METASYN, INC.
AT
71 AND 00 XXXXXX XXXXXX, XXXXXXXXX, XXXXXXXXXXXXX
Table of Contents
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Section Page
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1. REFERENCE DATA 1
SIGNATURES 3
SECRETARY'S CERTIFICATE 4
LIST OF EXHIBITS 5
2. PREMISES 6
2.1 Premises 6
2.2 Deleted 6
2.3 Appurtenant Rights 6
2.4 Landlord's Reservations 6
3. COMMENCEMENT AND TERM OF LEASE 7
3.1 Condition and Delivery of Premises 7
3.2 Habendum 7
3.3.1.d Tenant's Right to Cancel 8
3.3 Entry Prior to Commencment Date 7
3.4 Tenant's Option to Extend Term 9
3.5 Tenant's Right of Refusal as to
00 Xxxxxx Xxxxxx 11
3.6 Tenant's Option to Add Premises at
00 Xxxxxx Xxxxxx 11
3.7 Time Limits on Exercise of Rights under
Section 3.5 and 3.6 11
4. PREPARATION OF PREMISES 12
4.1 Tenant's Work 12
5. USE OF PREMISES 14
5.1 Permitted Uses 15
5.2 Prohibited Uses 15
5.3 Licenses and Permits 15
5.4 Signs 15
6. RENT 15
6.1 Annual Fixed Rent 16
6.2 Additional Rent; Taxes and Operating Expenses 18
6.2.1 Billing of Taxes and Operating Expenses 19
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Section Page
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6.2.2 Definition of Operating Expenses 21
6.2.3 Certain Excluded Charges 23
6.3 Late Charges 24
6.4 Security Deposit 24
7. ALLOCATION OF BUILDING SERVICES 24
7.1 Landlord's Duties 24
7.2 Tenant's Duties 24
7.3 Tenant to Pay for All Utilities 25
7.4 Deleted 25
7.4.1 Repairs for Account of Tenant 25
7.5 Curtailed Services 25
7.6 Payment for Tenant's Work 25
8. TENANT'S ADDITIONAL COVENANTS 26
8.1 Compliance with Law, Including Hazardous
Substances 26
8.2 Indemnity 28
8.3 Tenant's Property is Tenant's Risk 29
8.4 Estoppel Certificate 29
8.5 Overloading, Nuisance, Restrictions on
Research Activities; Volatile or Dangerous
Substances 29
8.6 Yield Up 30
8.6.1 What are Intended to be Fixtures 30
8.7 Alterations and Improvements by Tenant
After Term Commencement 31
8.8 Flood Load; Heavy Machinery 31
8.9 Assignment and Subletting 31
8.10 Landlord's Access to Premises 33
8.11 Construction Activity 34
8.12 Tenant's Financial Statements 34
9. INSURANCE 34
9.1 Public Liability Insurance 34
9.2 Casualty Insurance 35
9.3 Certificates of Insurance 35
9.4 Landlord's Insurance 35
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Section Page
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9.5 Waiver of Subrogation 36
9.6 Increase in Insurance Risk 36
10. DAMAGE TO PREMISES AND CONSEQUENCES OF
EMINENT DOMAIN 36
10.1 Repair and Restoration of Casualty Loss 36
10.2 Abatement of Rent 37
10.3 Termination for Major Damage or If Damaged
at End of Term 37
10.4 Eminent Domain 39
11. DEFAULT AND REMEDIES 40
11.1 Events of Default 40
11.2 Deleted 42
11.3 Damages - Termination 42
11.4 Effect of Tax and Operating Payments
on Damages 43
11.5 Landlord's Expense in Performing
Obligations of Tenant 44
11.6 Landlord's Remedies Not Exclusive 44
11.7 Landlord's Default 45
11.8 Effect of Waivers of Default 45
11.9 Deleted 45
11.10 No Accord and Satisfaction 45
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Section Page
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12. SUBORDINATION 45
12.1 Subordination 45
13. HOLDING OVER 46
13.1 Holding Over 46
14. MISCELLANEOUS PROVISIONS 48
14.1 Notices 48
14.2 Quiet Enjoyment 48
14.3 Limitation of Landlord's Liability 48
14.4 Acts of God 49
14.5 Applicable Law and Construction 49
14.6 Arbitration 49
14.7 Timely Performance 50
14.8 No Broker 50
14.9 Financing Requirements 50
14.10 Agreement Made Only When Lease Signed 50
14.11 Demolition 50
14.12 Deleted 51
14.13 No Parking 51
EXHIBITS 52-61
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LEASE
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1. REFERENCE DATA
Each reference in this Lease to the following subjects shall be construed
to incorporate the data for that subject stated in Section 1.
DATE: As of July 1, 1992
PREMISES: The premises shown on Exhibit 1 containing
approximately 2,500 square feet located in the 2,500
square foot building known as and numbered 00 Xxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx and the premises
shown on Exhibit 2 containing approximately 5,000
square feet located in the 5,000 square foot building
known as and numbered 00 Xxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxxxxxx (collectively, the Building)
LANDLORD: Xxxxx X. Xxxx and Xxxxxx X. Xxxx, Trustees of The
Cambridge East Trust, under declaration of trust
dated June 1, 1983 recorded with the South Middlesex
Registry of Deeds, Book 15067, Page 392 and
registered with the South Middlesex Registry District
of the Land Court as Document 641740 noted on
Certificate of Title 168090, Book 970, Page 140, as
Trustees and not individually.
ORIGINAL ADDRESS OF LANDLORD:
c/x Xxxx and Company, Inc.
000 Xxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
TENANT: Metasyn, Inc., a Delaware corporation
ORIGINAL ADDRESS OF TENANT:
00 Xxxxxx Xxxxxx
Xxxxxxxxx, XX
TERM: 5 years, 2 months
EXTENSION OPTION: See section 3.6
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REFUSAL RIGHTS: See section 3.5
COMMENCEMENT DATE: November 1, 1992
TERMINATION DATE: December 31, 1997
ANNUAL FIXED RENT: None - 11/01/92 through 12/31/92
$ 60,000 - 01/01/93 through 12/31/93
$ 67,500 - 01/01/94 through 12/31/94
$ 75,000 - 01/01/95 through 12/31/95
$ 82,500 - 01/01/96 through 12/31/96
$ 90,000 - 01/01/97 through 12/31/97
MONTHLY PAYMENT: $ 5,000 - 01/01/93 through 12/31/93
$ 5,625 - 01/01/94 through 12/31/94
$ 6,250- 01/01/95 through 12/31/95
$ 6,875 01/01/96 through 12/31/96
$ 7,500 01/01/97 through 12/31/97
TENANT'S PERCENTAGE OF
OPERATING EXPENSES: 100 %
TAX BASE: None
PERMITTED USES: Office, laboratory use and ancillary animal
space to the extent permitted by applicable
law, and no other use.
SECURITY DEPOSIT:
Except as provided in the following paragraph, the security deposit
shall be $100,000, which at Tenant's election may be paid (a) in cash
or (b) in an unconditional, irrevocable letter of credit drawn to
Landlord's order on a financial institution satisfactory to Landlord
which expires not earlier than December 31, 1993 and which shall be
renewed (or replaced with an equivalent letter of credit) on or before
November 1 of each year through and including November 1, 1996 (and
annually thereafter until November 1, 2001 in the event the Term is
extended under Section 3.4).
On the condition that Tenant has incurred no defaults (whether or not
subsequently cured or waived) in the payment of Annual Fixed Rent and
all items of additional rent continuing
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beyond any applicable cure or grace periods, and (b) on the further
condition that Tenant is not then in default beyond applicable cure or
grace periods of any other obligation under the Lease, the security
deposit will be reduced to $75,000 on November 1, 1993, to $50,000 on
November 1, 1994, and to $25,000 on November 1, 1995. In the event the
security deposit is in cash, the reduction will be implemented by the
Landlord's refund of the appropriate amount on demand of the Tenant. In
the event the security deposit is being funded by letter of credit, the
reduction may be implemented by Tenant's tendering a replacement letter
of credit on terms identical to the original letter of credit, in each
case ending not sooner than December 31 of the following year, for the
reduced amount, which shall be exchanged for the letter of credit then
held by Landlord. Tenant's right to receive the reductions of the
security deposit specified above is a privilege conditioned upon
Tenant's satisfying the conditions stated above.
BROKER: Lynch, Murphy, Xxxxx & Partners
SIGNATURES
LANDLORD: TENANT:
Xxxxx X. Xxxx and Xxxxxx X. Xxxx,
Trustees as aforesaid
and not individually
By: Xxxx and Company, Inc. Metasyn, Inc.
Managing Agent
By: /s/ By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------- ------------------------------
Xxxxxxx X. Xxxxxxx
its its president
hereunto duly authorized hereunto duly authorized
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SECRETARY'S CERTIFICATE
I, Xxxxx X. Xxxxx, Assistant Secretary of Metasyn, Inc., hereby certify
that the following is a true copy of a resolution of the Board of Directors
of this corporation adopted by unanimous written consent, dated June 29,
1992, and that such resolution has not been revoked, amended or modified
and is in full force and effect:
Voted: That the President be and hereby is authorized singly, to execute
and deliver on behalf of this corporation a lease between the Trustees of
The Cambridge East Trust, as landlord, and this corporation, as tenant, for
approximately 7,500 rentable square feet of space in the landlord's
buildings located at 71 and 00 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx,
with certain rights to lease additional space in the landlord's buildings
at 69 and 00 Xxxxxx Xxxxxx , Xxxxxxxxx, for such rent and upon such terms
as the signing officer shall determine to be necessary, desirable or
appropriate, the signature of the President on such lease and any notice of
such lease to be conclusive evidence of the approval thereof by this vote.
This is to certify further that as of the date hereof, Xxxxxxx Xxxxxxx is
the President of this corporation.
This is to certify further that the execution and performance by this
corporation of the lease described in the forgoing vote will not contravene
or violate the Charter and Bylaws of this corporation.
/s/ Xxxxx Xxxxx
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Assistant Secretary
Dated: July 6, 1992
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LIST OF EXHIBITS
Exhibit 1 - Floor Plan of Premises at 00 Xxxxxx Xxxxxx
Exhibit 2 - Floor Plan of Premises at 00 Xxxxxx Xxxxxx
Exhibit 3 - Tenant's Work
Exhibit 4 - Floor Plan of Premises at 00 Xxxxxx Xxxxxx
Exhibit 5 - Reference Data for 00 Xxxxxx Xxxxxx
Exhibit 6 - Floor Plan of Premises at 00 Xxxxxx Xxxxxx
Exhibit 7 - Reference Data for 00 Xxxxxx Xxxxxx
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2. PREMISES
2.1 Premises. The Premises are shown on the Floor Plan (Exhibit 1)
attached hereto and comprise the entire Building in which each
is located. Such Building, together all the Buildings now
or hereafter containing Premises are referred to collectively
as the "Building".)
2.2 Deleted.
2.3 Appurtenant Rights. Subject to Landlord's rules, Tenant shall
have, as appurtenant to any Premises which are less than all
the Building in which Premises are located, rights to use in
common with others entitled thereto: (a) the common lobbies and
hallways, if any, of the Building; and (b) any common toilets
and other common facilities, if any.
Tenant has exclusive rights to use the entire Building at 00
Xxxxxx Xxxxxx and 00 Xxxxxx Xxxxxx, except that Landlord reserves
the right to use the restrooms at 71 Xxxxxx as common facilities
for 00 Xxxxxx Xxxxxx. If and when the premises at 00 Xxxxxx Xxxxxx
are occupied by a person other than Tenant, Landlord shall
erect doors (or construct walls and separate bathrooms) so that
Tenant's Premises are not accessible to such other person.
2.4 Landlord's Reservations. Landlord reserves (a) access to the
Premises for inspection and repair on prior notice and during
Tenant's business hours; and (b) any space in the Premises used
for shafts, stacks, pipes, conducts, wires and appurtenant
fixtures, ducts, electrical wiring, sinks or other facilities
which serve the Building. Access and repair shall be done in a
manner designed to reasonably minimize interference with Tenant's
use of the Premises. Landlord reserves the right to alter existing
patterns of vehicular traffic flow in the vicinity of the Building
including, without limitation, reduction or elimination of
vehicular flow (other than delivery and other service vehicles) on
Xxxxxx Street.
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3. COMMENCEMENT AND TERM OF LEASE
3.1 Condition and Delivery of Premises. The Premises are leased to
Tenant in their existing condition without warranty or
representations except as stated in this Lease. Landlord shall
deliver possession on the Commencement Date. If Landlord is unable
to do so because a prior tenant or occupant retains possession,
Landlord shall incur no liability thereto nor shall such failure
affect the validity of this Lease except that Annual Fixed Rent
and all other amounts due from Tenant shall be abated pro rata as
to the area not delivered until possession of the occupied space
is delivered to Tenant.
Landlord represents that the HVAC system(s) in the Premises will
be in good working order at the commencement of the TERM. (This is
not an implied warranty in any respect.)
Tenant acknowledges that at the time of execution of this Lease,
Tenant is in full possession of the portion of the Premises
located at 00 Xxxxxx Xxxxxx. Upon the occurrence of the
Commencement Date hereunder, Tenant's status as a tenant-at-will
automatically terminated.
3.2 Habendum. To have and to hold the Premises for the Term
commencing on the Commencement Date and ending on the Termination
Date or such earlier date upon which said term may expire
or be terminated pursuant to this Lease or pursuant to law
(collectively the "Termination Date").
3.3 Entry Prior to Commencement Date.: Landlord agrees to notify
Tenant if Landlord becomes aware that the present occupant of the
Premises, Organogenesis, Inc. has vacated or will vacate
materially before October 31, 1992. With Landlord's prior written
consent, Tenant may, at its sole risk, enter the Premises prior to
the Commencement Date without payment of rent but otherwise under
the terms of this Lease; but notwithstanding any provision in the
Lease to the contrary, for the first sixty (60) days after
Tenant's entry. Tenant shall be entitled to occupy the Premises
"rent free" commencing
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sixty-one (61) days after Tenant's entry. Tenant shall pay use and
occupancy until December 31, 1992 at the rate set forth for annual
Fixed Rent for 1993 plus all taxes, operating expenses and other
additional rent for the use and occupancy period.
3.3.1 Tenant's Right to Cancel. If Landlord has not delivered
possession of substantially all the Premises to Tenant by February
28, 1993, Tenant may at any time thereafter until such possession
is delivered send Landlord notice of Tenant's intent to cancel
this Lease (the "Termination Intent Notice"). If Landlord has not
delivered possession as aforesaid within ten (10) days after
receiving the Termination Intent Notice, Tenant may at any time
thereafter until such possession is delivered elect to terminate
this Lease by notice to Landlord so stating (the "Termination
Notice"). Such termination shall be effective on the later of 1)
the date stated in the Termination Notice or 2) the date Tenant
vacates all the portions of the Premises accepted by Tenant, but
such termination shall not be effective unless Tenant so vacates
within ten (10) days of the Termination Notice.
3.4 Tenant's Option to Extend Term. In the event this Lease is in full
force and effect without notice of default to Tenant or, if such
notice of default has been given, Tenant is acting promptly and
diligently to cure the same and applicable grace periods, if any,
have not expired, and the original Tenant or any successor Tenant
to whom the original Tenant can transfer its interest under this
Lease by right and without Landlord's consent pursuant to Section
8.9 (the "Successor Tenant") holds the entire tenant's interest
hereunder and is in occupancy of the Premises and engaged in the
active conduct of its business, the original Tenant or such
Successor Tenant, as the case may be, may extend the initial Term
for one period of five (5) years from the Termination Date on the
terms and conditions of this lease (except for Annual Fixed Rent,
which shall be determined as follows), by giving at least twelve
(12) months prior written notice thereof to Landlord, and
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thereafter all references in this Lease to the Term shall also
include the Term as extended.
At Tenant's written request made at least thirty (30) days prior
to the last day for Tenant to exercise the extension option under
section 3.4 (but not more than sixty (60) days prior thereto),
Landlord agrees to state in writing the fair market rent to which
Landlord would agree for the extended Term ("Landlord's Rent
Statement"). If Tenant makes such request, then the last day on
which Tenant may exercise its option to extent the term shall be
the later of (i) the date set forth above or (ii) ten (10)
business days after receiving Landlord's Rent Statement.
Notwithstanding the foregoing, Annual Fixed Rent for the extended
Term shall be established as set forth in section 6.1.
3.5 Tenant's Right of Refusal as to 00 Xxxxxx Xxxxxx. In the event
this Lease is in full force and effect without notice of default
to Tenant or, if such notice of default has been given, Tenant is
acting promptly and diligently to cure the same and applicable
grace periods, if any, have not expired, and the original Tenant
or the Successor Tenant holds the entire Tenant's interest
hereunder and is in occupancy of all Premises then included in the
Lease and engaged in the active conduct of its business, the
original Tenant or the Successor Tenant, as the case may be, shall
have a right of refusal to lease 5,000 square feet of space at 00
Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx shown on Exhibit 4
attached to this Lease (the "Refusal Premises") in their then
existing condition with no obligation in Landlord with regard to
altering or improving the condition thereof (except as stated in
Section 4.1, which shall apply to the Refusal Premises) for a term
beginning not more than four (4) months after the date of
Landlord's Refusal Premises Notice (or on March 1, 1993 if later)
and ending on the Termination Date (as it may be extended) on the
terms and conditions
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stated on Exhibit 5 and otherwise on all the terms and conditions
of this Lease (including, but not limited, to Tenant's obligation
to pay all Taxes and Operating Expenses with respect thereto);
except that the amount Landlord shall pay for Tenant's
Improvements to the Refusal Premises shall be $85,000 multiplied
by a fraction, the numerator of which is the number of days from
the Commencement Date on the Refusal Premises to the original
Termination Date and the denominator of which is One Thousand
Eight Hundred Twenty Six (1,826).
The right of refusal shall be exercised as follows (but in no
other way).
If, during the initial Term, the Refusal Premises are proposed to
be leased, Landlord shall so notify Tenant in writing ("Landlord's
Refusal Premises Notice"). Landlord's Refusal Premises Notice
shall state the date on which the Refusal Premises would be added
to the Premises under this Lease (or, if that date is uncertain,
may state the earliest date the Refusal Premises could be added to
the Premises under this Lease) and shall be given not sooner than
forty-five (45) days before such date. Tenant shall have the right
to lease the Refusal Premises on the terms and conditions stated
above if (but only if) (1) Tenant gives Landlord written notice of
its intention to do so within fifteen (15) calendar days of
receipt of Landlord's Refusal Premises Notice and (2) executes and
delivers to Landlord, within ten (10) business days of receipt
thereof, the amendment adding the Refusal Premises to this Lease
on the terms and conditions stated above, and Tenant's failure to
do either of these acts within the time stated (time being of the
essence as stated in Section 14.7) shall terminate Tenant's right
to lease the Refusal Premises under this Section 3.5 if Landlord
leases the Refusal Premises to any person within twelve (12)
months following the last day Tenant could have exercised the
refusal rights; and otherwise, subject to Section 3.7, Tenant's
right to lease the Refusal Premises shall apply to the next
proposed lease and shall be exercised as stated in this Section
3.5.
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3.6 Tenant's Option to Add Premises at 00 Xxxxxx Xxxxxx. In the event
this Lease is in full force and effect without notice of default
to Tenant or, if such notice of default has been given, Tenant is
acting promptly and diligently to cure the same and applicable
grace periods, if any, have not expired, and the original Tenant
or the Successor Tenant holds the entire Tenant's interest
hereunder and is in occupancy of all Premises then included in the
Lease and engaged in the active conduct of its business, the
original Tenant or the Successor Tenant, as the case may be, shall
have the option to add the Premises comprising 2,500 square feet
located at and known as 00 Xxxxxx Xxxxxx as shown on Exhibit 6
(the "Expansion Premises") for a term ending on the Termination
Date, as it may be extended, in their then existing condition with
no obligation to the Landlord with regard to altering or improving
the condition thereof (except as stated in Section 4.1 which shall
apply to the Expansion Premises) on the terms and conditions
stated in Exhibit 7 hereto and on all the other terms and
conditions of this Lease; except that the amount Landlord shall
pay for the Tenant's Improvements to the Expansion Premises shall
be Forty Two Thousand Five Hundred Dollars ($42,500) multiplied
by a fraction, the numerator of which is the number of days from
the Commencement Date for the Expansion Premises to the original
Termination Date and the denominator of which is One Thousand
Eight Hundred Twenty Six (1,826). Tenant shall exercise its
right to add the Expansion Premises to the Premises by giving
at least six (6) months' written notice to Landlord, and
thereafter all references in this Lease to the Premises shall
also include the Expansion Premises. The Commencement Date as
to the Expansion Premises shall be the date stated in the
Tenant's notice of exercise, and if none is stated, shall be
six (6) months from the date of Tenant's notice of exercise
(or such earlier date on which Tenant first occupies the
Expansion Premises for any use (including construction).
3.7 Time Limits on Exercise of Rights under Sections 3.5 and 3.6. No
exercise of Tenant's right of refusal under Section 3.5 as to 00
Xxxxxx Xxxxxx or Tenant's expansion
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right under Section 3.6 as to 00 Xxxxxx Xxxxxx shall be valid
unless exercised such that the term as to those Premises commences
on or before July 1, 1996; provided, however, that if Tenant has
validly exercised its right to extend the Term as to the original
Premises, then the notices required to exercise the aforesaid
refusal and expansion rights will be effective if received by
Landlord on or before December 31, 1996 (but not if received
later).
4. PREPARATION OF PREMISES
4.1 Tenant's Work; Landlord's Reimbursement.
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Tenant agrees to perform at its sole expense, and Landlord hereby
consents to, the work described in Exhibit 3 ("Tenant's
Improvements") on the following terms and conditions:
(a) Prior to undertaking any work on the Premises, Tenant shall
obtain Landlord's approval of all plans for Tenant's
Improvements ("Tenant's Plans"). Landlord shall review
Tenant's Plans with Landlord's staff or, as to matters
which are in Landlord's sole judgment beyond the competence
of Landlord's staff to review unassisted, Landlord shall
engage an outside consultant to review Tenant's Plans at
Tenants sole cost and expense. Landlord agrees to approve
Tenant's Plans ( or specify in reasonable detail the
matters of which the Landlord does not approve) within
thirty (30) days of receiving a complete set of Tenant's
Plans. If Landlord fails to do so, and Tenant gives
Landlord written notice to that effect (the "Reminder
Notice"), then unless Landlord approves/ responds, as the
case may be, within two (2) business days of receiving
Tenant's Reminder Notice, Landlord shall be deemed to have
approved Tenant's Plans.
Landlord agrees to review and approve Tenant's Plans for 00
Xxxxxx Xxxxxx and 00 Xxxxxx Xxxxxx separately if so
requested by Tenant.
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(b) Upon receipt of Landlord's written approval of Tenant's
Plans, which approval may include such reasonable conditions
as Landlord deems necessary or appropriate (or Landlord's
deemed approval, as the case may be), Tenant may proceed, at
Tenant's sole cost and expense, with the Tenant's
Improvements as contemplated by Tenant's Plans approved in
writing by Landlord.
(c) Upon completion of Tenant's Improvements and all work
related thereto, and upon Landlord's receipt from Tenant of
satisfactory proof of payment for all Direct Construction
Costs of Tenant's Improvements, all related work and any
other costs which, in Landlord's judgment could result in a
statutory lien for labor and materials on the Building or
the Premises under applicable law, Landlord shall reimburse
Tenant for the Reimbursable Direct Construction Costs of
Tenant's Improvements, but in no event exceeding $127,500.
"Direct Construction Costs" shall be all actual direct
construction costs (i.e. so-called "hard costs") of all
Tenant's Improvements and all work related thereto.
"Reimbursable Direct Construction Costs" shall be limited to
the Direct Construction Costs of those Tenant's Improvements
which under the Lease become Landlord's property, and shall
specifically exclude, by way of example, all costs of
personal property and fixtures which Tenant is entitled to
remove from the Premises.
At Tenant's written request, Landlord will pay ninety
percent (90%) of the Reimbursable Direct Construction Costs
requisitioned as progress payments by Tenant's contractor on
the conditions that (1) Tenant is simultaneously paying all
other amounts due the contractor on such requisition and (2)
Landlord has had reasonable opportunity (if Landlord so
elects, but with no obligation to do so) to inspect the
contractor's work. In such case, Landlord shall pay the
balance of the Reimbursable Direct Construction Costs at
Tenant's written request, but not sooner than Tenant's
payment of all retainage to the contractor. Tenant's request
for any such payment shall constitute Tenant's
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acknowledgment to Landlord that Tenant is not relying on
Landlord for any inspection or approval of work.
(d) Tenant shall perform no work in the Premises not shown on
Tenant's Plans as approved in writing by Landlord. Tenant
shall secure Landlord's prior written approval (not to be
unreasonably withheld or delayed) of the contractor(s) to do
Tenant's Improvements. All persons working in the Premises
in connection with Tenant's Improvements shall be covered by
xxxxxxx'x compensation satisfactory to Landlord.
Tenant shall indemnify and save harmless Landlord from all
costs, expenses, damages or losses sustained or claimed
against Landlord arising out of work done by Tenant or by
Landlord on Tenant's account in the Premises except to the
extent caused by Landlord's negligence or willful act,
including without implied limitation attorneys' fees, and on
Landlord's written request Tenant shall provide a copy of
Tenant's contractor's payment bond, or, at Tenant's option,
other evidence of the contractor's financial integrity
satisfactory to Landlord in Landlord's sole judgment. Tenant
shall promptly cause to be removed, by a xxxx xxxx if
necessary, any liens or notices or other claims of lien
against the Premises arising out of Tenant's Improvements or
other work performed by or on behalf of Tenant on the
Premises.
(f) Any special approvals for occupancy of the Premises,
municipal or otherwise, necessitated by the nature of the
Tenant's business or the like shall be the Tenant's sole
responsibility.
(g) This Section shall also apply to the Refusal Premises (79
Xxxxxx Street) and the Expansion Premises (69 Xxxxxx Street)
if added to this Lease, subject to the separate limits on
Landlord's reimbursement of Reimbursable Direct Construction
Costs of Tenant's Improvements set forth in Sections 3.5 and
3.6.
5. USE OF PREMISES
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5.1 Permitted Use. Tenant shall use the Premises only for the
purposes set forth in Section 1 and for no other purposes.
Tenant agrees always to use the Premises in accordance with the
requirements of the Cambridge Zoning Code and other applicable
law, and that Landlord has made no warranties on representations
with regard thereto.
5.2 Prohibited Uses. Without limiting the generality of Section 5.1,
Tenant shall not use any part of the Premises (a) in any manner
which would violate this Lease, (b) for any unlawful purpose, (c)
in any manner which in Landlord's judgment impairs the exterior
appearance or reputation of the Building or (d) in any manner
which impairs or interferes with Building services or the economic
heating of the Building, or which interferes with other tenants or
occupants of the Building. Tenant may not install coffee makers,
refrigerators, cooking equipment or other food-related equipment
in the Premises without Landlord's prior written consent, which
consent shall not be unreasonably withheld as to equipment
designed for Tenant's employees which requires no permits and no
construction or special venting.
All volatile, dangerous or harmful substances shall at all times
be stored in a secure area in a safe manner and always in
compliance with applicable law and government and insurance
requirements and guidelines.
5.3 Licenses and Permits. Tenant shall obtain at its expense all
licenses or permits required for the lawful conduct of Tenant's
business.
5.4 Signs. Tenant shall not place signs on the exterior of the
Building, in any window or in any common or public area without
the Landlord's prior written consent. Tenant's signs shall comply
with applicable law.
6. RENT
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6.1 Annual Fixed Rent. Tenant covenants and agrees to pay to Landlord
at the Original Address of Landlord, or such other place
as Landlord may by written notice to Tenant direct, Annual Fixed
Rent stated in section 1 in equal monthly installments on the
first day of each month during the Term and pro rata for any
partial month. The first payment shall be made on execution of
this Lease and shall be for the first full month for which full
rent is due plus any preceding partial month.
Annual Fixed Rent for the extended Term shall be established by
agreement between Landlord and Tenant and shall be ninety percent
(90%) of the fair market rent for the Premises (exclusive of Real
Estate Taxes and Operating Expenses) on or about the date the
extended Term begins (but in no event shall Annual Fixed Rent for
the extended Term be less than Annual Fixed Rent for the final
twelve months of the original Term). Fair market rent shall be the
highest Annual Fixed Rent (or schedule or formula of varying rents
and, including without limitation the net present value of
concessions, such as free rent periods, then typical in that
market) which willing tenants would pay to lease such area for the
term in question in a competitive and open market under terms and
conditions substantially the same as those of this Lease with such
area considered free and clear of this Lease and as though then
available for occupancy for any legal use in their then condition.
Rent historically paid under this Lease shall be disregarded in
determining fair market rent.
If, at Tenant's request, Landlord states in writing the fair
market rent Landlord would accept for the extended Term as set
forth in Section 3.4, and Tenant specifically accepts that rent in
its notice extending the Term, then that shall be the Annual Fixed
Rent for the extended Term. In all other cases, Annual Fixed Rent
shall be determined by subsequent agreement (or failing agreement,
by appraisers) as stated below.
If Landlord and Tenant have not agreed on such fair market rent in
writing by September 1, 1997, the fair market rate shall be
determined by appraisers, one to be
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chosen by Landlord, one to be chosen by Tenant and a third to be
selected by the first chosen if the first two cannot agree; or, at
Landlord's option, by a member of the American Society of Real
Estate Counselors experienced in first class urban office
buildings.
Landlord and Tenant shall each notify the other of its chosen
appraiser within thirty (30) days after the commencement of the
Term as to the Additional Premises and, unless those two
appraisers shall have reach a unanimous decision within
seventy-five (75) days from the end of that thirty (30) day
period, they shall within the following fifteen (15) days select a
third appraiser, notify Landlord and Tenant thereof and proceed
forthwith to decision. If Landlord elects to have the
determination made by a member of the American Society of Real
Estate Counselors, Landlord shall notify Tenant within thirty (30)
days after the commencement of such year of the name of the
Counselor chosen, and neither party shall have any further
obligation to select appraisers. If Tenant notifies Landlord with
in thirty (30) days of the date of Landlord's notice the Tenant
wants two (2) or if necessary three (3), such Counselors to act,
and includes in that notice the name of a second Counselor, then
Landlord shall so inform the original Counselor, and those two
Counselors shall proceed in the manner and on the schedule
specified herein for appraisers, including selecting a third
Counselor failing agreement of the two. Landlord and Tenant shall
each bear the expense of the appraiser/ Counselor chosen by it and
shall bear equally the expense of the third appraiser/Counselor
(if any) or of the sole Counselor if he or she acts alone. The
written decision of the sole Counselor, the unanimous written
decision of the two first appraiser/Counselors chosen, without
selection and participation of a third, or, if they do not agree,
the written decision of a majority of the three
appraisers/Counselors, as the case may be, shall be conclusive and
binding upon Landlord and Tenant.
Until Annual Fixed Rent for the extended Term is determined,
Tenant shall make payments of Annual Fixed
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Rent in the amount of Landlord's last offer subject to retroactive
adjustment, without interest, in conformity with and within thirty
(30) days of the determination of Annual Fixed Rent as set forth
in this Section.
6.2 Additional Rent; Taxes and Operating Expenses. Tenant agrees to
pay as additional rent for any period or portion thereof included
within the Term and in the manner stated in Section 6.2.1 (a)
Tenant's Share (defined below) of Real Estate Taxes (defined
below) and (b) Tenant's Percentage (defined in Section 1) of
Operating Expenses as defined in Section 6.2.2. Tenant shall pay
all increased taxes attributable to any improvement or alteration
in the Premises for the exclusive benefit of Tenant.
"Tenant's Share" shall mean (i) that percentage of Real Estate
Taxes allocated to land value by the City of Cambridge assessors
which the square footage of the Premises bears to the total square
footage of all buildings included within the same tax xxxx as the
Premises on January 1st of each year and (ii) the applicable tax
rate (a) applied to the assessment of the Premises most recently
determined by the City of Cambridge Assessors, and (b) if the
Assessor's valuations are not available, then applied to the
Premises' share of the value attributed to all buildings within
such tax xxxx allocated by Landlord among the Premises and such
other building(s) in Landlord's sole judgment. The term "Real
Estate Taxes" and "taxes" shall mean all taxes, assessments,
betterments, use fees and charges, sewer entrance fees and all
other public charges, (including so called "linkage payments"
required to be paid by Landlord) levied, assessed or imposed at
any time by any governmental authority or agreed or governmentally
imposed "in lieu of" or similar charges, upon or against the land
and Building(s) described in Section 1 and all other properties of
Landlord included in the same tax xxxx, and the land used for
parking by Landlord's tenants of Landlord's several properties in
the proximity of the Building (but Tenant's share shall not
include Real Estate Taxes to the extent Real Estate Taxes for such
land used for parking are included within the parking
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fees charged by Landlord for such parking), or in case of
assessment, betterment or other charges to improve services,
facilities, or other amenities in the vicinity of Landlord's said
properties, voluntarily accepted by Landlord.
Landlord represents that the present tax xxxx for the Premises
includes the buildings at 00 Xxxxxx Xxxxxx, 71 Xxxxxx Street,
00 Xxxxxx Xxxxxx and 00 Xxxxxx Xxxxxx.
"Real estate taxes" shall not include taxes, assessments, etc.
on additional rental space constructed by Landlord unless there
is a corresponding reduction in "Tenant's Share".
6.2.1 Billing of Taxes and Operating expenses.
---------------------------------------
(a) Landlord will send Tenant a copy of the tax xxxx(s) and a
statement for Tenant's portion thereof, and Tenant will pay
Tenant's Share to Landlord within 10 days. Landlord reserves
the sole right to bring proceedings for abatement of taxes
and Tenant assigns Landlord all rights Tenant may now or
hereafter have with respect thereto, whether arising under
statute or by any other means.
Tenant shall pay 1/12th of Tenant's obligations for real
estate taxes on the first day of each month based on taxes
for the prior tax year so that Landlord shall have received
sufficient monthly payments at least 15 days before each
payment is due the taxing authority to make full payment of
such taxes when they are due, which funds Landlord may hold
in co-mingled accounts and without interest to Tenant. If
Tenant is late in any tax payment, Tenant shall pay Landlord
any interest required of Landlord by the taxing authority,
or if Landlord advances the Taxes, Tenant shall pay Landlord
interest as in Section 6.3.
If during the Term, under the laws of the United States,
Massachusetts, Middlesex County or Cambridge, or any other
governmental entity having
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jurisdiction, there shall be adopted some other method of
taxation upon or relating to the economic productivity of
real estate in addition, substitution or modification in
whole or in part for taxes on real estate as now levied in
Massachusetts including, by way of illustration and not
limitation, taxes on rent and increased or new fees for
municipal services, Tenant will pay such substitute or
modified taxes and fees as soon as the same shall become
due and payable. If the parties cannot agree whether such
taxes or fees are in fact in addition, substitution or
modification in whole or in part for taxes and fees on real
estate, as now levied, or on the extent to which Tenant
should bear the cost of such taxes and fees, the matter
shall be submitted to arbitration by the parties in
accordance with the provisions of Section 14.6.
Notwithstanding such submission, Tenant agrees to pay
Landlord such taxes and fees when and in the amount
demanded by Landlord, with refund to the Tenant, without
interest, of any amount determined by said arbitrators to
be in excess of Tenant's obligations under this Section
6.2.3. It is the parties' intent that Landlord's net
return of Annual Fixed Rent shall not be reduced by
changes in the methods or structure of taxing the economic
productivity of real estate and this clause shall be
interpreted to effect that result.
(b) Tenant shall incur in its own name and pay for all Operating
Expenses within the scope of its duties stated in Section 7.
To the extent that Landlord incurs any Operating Expenses
pursuant to its duties under Section 7, Tenant shall pay
such Operating Expenses on the first day of each month in a
monthly payment representing 1/12th of the annualized
Operating Expenses based on the Landlord's most recent
fiscal period.
Landlord from time to time shall furnish to Tenant, at such
interval as Landlord shall from time to time determine a
statement in reasonable detail of Operating Expenses
Sustained by Landlord during
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such fiscal period together with a computation of Tenant's
Percentage thereof and Tenant will pay Tenant's Percentage
within fourteen (14) days. Operating Expenses of the
Building are defined in Section 6.2.2.
Together with the last such payment of Operating Expenses
for any period, and on the first of each month until the
next statement, Tenant shall remit to Landlord one month's
portion of the Tenant's Percentage of Operating Expenses
incurred during the period just completed. If such monthly
remittances exceed Operating Expenses for the period, Tenant
may credit the difference against the next installment of
Operating Expenses due to Landlord. If such remittances are
less than the Operating Expenses for such period, Tenant
shall pay the difference to Landlord when Operating Expenses
are payable as provided in the preceding paragraph. Landlord
may change the fiscal period as Landlord desires.
6.2.2 Definition of Operating Expenses. "Operating Expenses" shall
mean (i) all amounts of whatever nature incurred by Landlord or
Tenant in connection with the operation, management, repair and
replacement not involving casualty loss (to which Article 10
applies), and maintenance of the Building and (ii) the Building's
pro rata share (apportioned by building area as determined by
Landlord among the building and the properties referenced below)
of all amounts of whatever nature incurred by Landlord in
connection with the operation, management, repair and replacement
of the grounds surrounding the Building and Landlord's other
properties in the proximity of the Building as determined by
Landlord in its sole discretion and of the parking facilities
serving Landlord's several properties in the proximity of the
Building. For example, Operating Expenses include charges for
water and other public facilities, insurance (including, without
limitation, casualty, liability and other insurance against such
risks and in such amounts as Landlord, in its sole discretion,
shall determine or as may be required by any mortgagee), exterior
maintenance of the
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Building; snow removal, sidewalk maintenance and repair and
maintenance of the grounds, shrubs, trees and other landscaping of
Landlord's other properties near the Building; security service,
if any; compensation of personnel providing service to the
Building; the costs of maintaining assessed value referenced in
Section 6.2.1 and a management fee at competitive rates. Operating
Expenses pursuant to subsection (ii) above are in the nature of
common expenses and shall be allocated among Landlord's several
properties in the proximity of the Building according to leasable
building area or such other equitable basis as Landlord shall
determine. Operating Expenses do not include mortgage charges,
brokerage commissions, executive (owner) salaries, Landlord's cost
of work done for a particular tenant for which Landlord is
reimbursed by such tenant and such portion of expenditures as are
not properly chargeable against income. If, during the Term,
Landlord in replacement of items makes capital expenditures in
replacement of items not fully incredible in Operating Expense for
the year in which made, there shall be included in Operating
Expenses for each year the amount, if any, by which the annual
charge-off (determined as hereinafter provided) of such
expenditure (less insurance proceeds, if any, collected by
Landlord by reason of damage to, or destruction of, the capital
item being replaced) exceeds the annual charge-off of the original
cost of such item; and (ii) if a capital expenditure is made for a
new capital item not in replacement of another capital item,
provided such capital expenditure is appropriate to prudent
management of real property or is of direct benefit to Tenant,
then Operating Expenses shall include in each fiscal year
thereafter the annual charge-off of such capital expenditure.
Annual charge-off shall be determined by dividing the original
cost of a capital item or expenditure by the useful life (in
years) of the capital item acquired. Landlord will determine
useful life in accordance with generally accepted accounting
principles.
In no event shall Operating Expenses include:
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(1) repairs or other work occasioned by fire or other casualty
or by the exercise of eminent domain.
(2) leasing commissions, attorney's fees, costs and
disbursements and other expenses incurred in connection
with negotiations or disputes with tenants, other
occupants, or prospective tenants or occupants.
(3) costs for which Landlord can be reimbursed by insurance,
warranties, or similar sources;
(4) renovating or otherwise improving, decorating, painting
or redecorating space for tenants or other occupants of
the properties.
(5) Landlord's cost of electricity and other services that are
sold to specific tenants (as distinguished from most or
all tenants in Landlord's properties in the environs of
the Premises) and for which Landlord is entitled to be
reimbursed by such tenants as an additional charge.
(6) any fines or penalties incurred due to violations by
Landlord of any governmental rule or authority.
If Landlord sustains any expense hereunder by reason of misuse or
neglect of the Premises, the Building, the grounds near Landlord's
other properties in the vicinity of the Building or driveways and
parking areas by Tenants of the Building or driveways and parking
areas by Tenant, or its agents, employees and invitees, such cost
shall not be Operating Expenses and Tenant shall reimburse
Landlord fully on demand for all such expenses as additional rent.
6.2.3 Certain Excluded Charges. Tenant shall not be required to pay any
franchise, corporate, estate, inheritance, succession, capital
levy, or transfer tax of Landlord, or any income tax imposed in
respect of Landlord's income from the Premises (as distinguished
from an excise tax upon rentals, which shall be Tenant's
obligation).
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6.3 Late Charges. Rent and additional rent not paid within thirty
(30) days of the due date shall bear interest at the annual rate
of 2% over the Base Rate of the First National Bank of Boston (or
any lower maximum rate permitted by law) from the date first due
until paid.
6.4 Security Deposit. During such time as the Security Deposit is a
cash deposit, Tenant shall deposit and maintain with Landlord the
Security Deposit which Landlord may commingle with Landlord's
other funds without interest to Tenant. The Security Deposit shall
be returned to Tenant at the expiration of this Lease upon
Tenant's written request, provided Tenant has not breached this
Lease. Landlord in its discretion may apply the Security Deposit
in total or partial satisfaction of any default by Tenant existing
beyond any applicable notice, grace or cure period, without
affecting or waiving any other rights or remedies.
7. ALLOCATION OF BUILDING SERVICES
7.1 Landlord's Duties. Within a reasonable period after Landlord has
received notice of the need thereof, Landlord shall repair the
exterior walls (but not interior surfaces thereof or window
glass), structural interior walls (but not the surfaces thereof or
glass therein), any other structural elements of the Building and
the roof of the Premises, and shall repair, or replace if
necessary, utilities exterior to the Building. Landlord's duty of
repair shall not extend to reasonable wear and tear. (Article 10
governs casualty or taking).
7.2 Tenant's Duties. Except as specifically herein otherwise provided,
Tenant shall keep the Premises, including all non-structural
elements, and as to Tenant's obligations under Section 8.1, the
Premises and areas in the vicinity thereof, in the same good
order, repair and condition as they are in on the Commencement
Date, or by improvements may be put in during the Term, reasonable
use and wear and damage by fire or other casualty damage by taking
and damage resulting from any failure of Landlord to perform its
obligations only excepted, including, for example, floors, doors,
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windows, glass, interior wall surfaces, fixtures and equipment in
the Premises, heating, air conditioning, plumbing, sprinkler
system, electrical and mechanical fixtures and equipment, and the
air, water and soil in, under and in the vicinity of the Premises.
Tenant shall keep the Premises safe, orderly and clean, including
rug shampoos and waxing of tile floors.
7.3 Tenant to Pay for All Utilities. Tenant will contract, in its own
name, and pay for all utility services, including without
limitation, water, electricity and heating, ventilation and air
conditioning. Landlord shall not be liable to Tenant for
interruption in or curtailment of any utility service. If any
utilities are not separately metered, Tenant shall pay a pro rata
share, based on use as determined by Landlord or at Landlord's
option according to Tenant's Percentage of Operating Expenses.
7.4 Deleted.
7. 4.1 Repairs for Account of Tenant. If, after written notice, or
after oral notice which is reasonable under the circumstances,
Tenant fails to do needed repairs promptly, Landlord may, at
Tenant's expense, make any such repairs without waiving any right
or remedy for Tenant's failure to make such repairs.
7.5 Curtailed Services. If any of Landlord's services are curtailed by
any reason or cause beyond Landlord's reasonable control, there
shall be no abatement of rent or other compensation due to
Landlord, nor shall Tenant's obligations hereunder be reduced.
7.6 Payment for Tenant's Work. The Premises shall at all times be free
of liens for labor and materials. To that end, Tenant shall pay
promptly for all work or services with respect to the Premises
undertaken or on behalf of Tenant. Tenant shall have the right to
contest/dispute claims brought by contractors, subcontractors and
suppliers so long as Tenant keeps the Premises free of all liens
and claims in the nature of liens, whether by surety bonds or
otherwise, and Landlord has not been
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named in ( or, if named, has been dismissed from) any litigation
related thereto. Landlord shall receive a reasonable service fee,
determined by Landlord, for work performed by or under the
supervision of Landlord.
8. TENANT'S ADDITIONAL COVENANTS
8.1 Compliance with Law, Including Hazardous Substances. Tenant, at
its sole expense, shall comply in all material respects with all
applicable law, and all applicable insurance requirements, with
respect to Tenant's use and occupancy of the Premises and will not
do or permit to be done anything upon the Premises which will
violate applicable law or invalidate or be in conflict with fire
and casualty insurance policies. Except for necessary quantities
of customary and usual cleaning supplies used in cleaning and
maintenance of the Premises, which shall be properly stored, and
except as otherwise provided in this Section 8.1, there shall not
be brought on or kept within the Premises any inflammable,
combustible or explosive fluid, material, chemical or other
Hazardous Substance.
Tenant agrees not to cause, permit or suffer any release or
discharge onto or in the vicinity of the Premises of any
hazardous, toxic or radioactive material or substance, including
without limitation oil (collectively, "Hazardous Substances")
regulated by any local, state or Federal law (for example, the
Federal Comprehensive Environmental Response Compensation
Liability Act of 1980, the Massachusetts Oil and Hazardous
Material Release Prevention Act) now in existence or hereinafter
enacted (collectively "Hazardous Substance Laws"). Tenant agrees
at Tenant's sole cost and expense to remove from the Premises and
the air and buildings adjacent to, and land and water under and
adjacent to, the Premises any Hazardous Substance which may be
released thereon by Tenant's act or neglect without regard to
fault.
Tenant further agrees not to store or use any Hazardous Substance
in, or about the Premises, or dispose of
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Hazardous Substances from the Premises to any other location,
without Landlord's prior written consent, which consent shall not
be unreasonably withheld provided Tenant has established to
Landlord's satisfaction that (i) such Hazardous Substance is
related to the Permitted Uses of the Premises and (ii) Tenant has
obtained all permits and approvals therefor and the same are
validly issued and outstanding and may be relied on by Tenant or
commit or suffer to be committed in or on the Premises any act
which would require the filing of a notice pursuant to any
Hazardous Substance Law, including without limitation
Massachusetts General Laws Chapter 21E. Notwithstanding Landlord's
consent, Tenant covenants and agrees that it shall advise Landlord
in writing on a continuing basis (i) of any Hazardous Substances
Tenant deals with in any way on the Premises that may be regulated
under any Hazardous Substance Law prior to such substances or
materials being brought upon the Premises, and (ii) of Tenant's
application for, receipt of, rejection regarding, and withdrawal
or lapse of, any license or permit required with respect to
Hazardous Substances relating to Tenant's activities at the
Premises. In the event that Tenant receives from any Federal,
state or local government agency any notice of violation or
alleged violation of any Hazardous Substance Law, Tenant agrees to
forward to Landlord a copy of any such notice within three (3)
days of Tenant's receipt thereof, and Tenant agrees to take all
steps necessary to bring Tenant's use of the Premises into
compliance with such Hazardous Substance Law and any other
applicable law.
Tenant agrees to be solely responsible for and to indemnify
Landlord, as additional rent, against any and all liability
arising from the breach of any of Tenant's covenants and
agreements under this Section 8.1, including without implied
limitation attorneys' fees and costs incurred by Landlord in
connection therewith, whenever such liability shall arise and for
as long as Landlord remains so liable. Tenant shall be liable
hereunder without regard to fault. At Landlord's request from time
to time during or Landlord's lender's
-27-
request, and upon the expiration of, the Term of this Lease,
Tenant shall cause the Premises and the Building and land, air,
water related thereto to be inspected by a qualified professional
satisfactory to Landlord for the presence of any material or
substance prohibited or regulated under any Hazardous Substance
Law and to obtain and forward to Landlord the professional's
written report setting forth the scope and results of such
inspection; provided, however, that during the Term Landlord may
require only one "without cause" inspection, and Landlord can only
require other inspections during the Term only if Landlord has
reasons to deliver or suspect that there has nor is likely to be a
violation of the Hazardous Substance Law. (Landlord lender's is
not bound by this restriction.)
Landlord agrees at Landlord's cost and expense to relocate Tenant
to other premises (i) of Landlord or (ii) of any person related to
or affiliated with The Xxxx Companies if (a) Hazardous Substances
are released into the Premises by act or neglect of a person other
than Tenant or Tenant's agents, employees, suppliers, contractors
or other person related to or affiliated with or dealing with
Tenant (a "Third Party") and (b) as a consequence thereof Tenant
is ordered by public authority having jurisdiction to vacate the
Premises for health or safety reasons; but if no such alternative
premises are available, Landlord may terminate this Lease upon
payment of Tenant's unamortized cost of improvements to the
Premises. Tenant's occupancy of alternate premises shall be for
the remainder of the original Term, at the Annual Fixed Rent and
additional rent, and otherwise on the terms and conditions of this
lease. If Tenant is relocated to such alternative premises,
Tenant's right to extend the Term, and Tenant's right to add
either the Refusal Premises or the Expansion Premises shall be of
no force or effect.
8.2 Indemnity. Tenant agrees to defend and hold Landlord harmless from
all injury, loss claim or damage to or of any person or property
while on the Premises or in or about the Building and on account
of, any work or thing whatsoever done (other than by or on behalf
of Landlord)
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on the Premises, including without implied limitation reasonable
attorneys' fees; except that to the extent required by
Massachusetts law the foregoing shall not exculpate Landlord from
liability for its own negligence or willful act.
8.3 Tenant's Property is Tenant's Risk. All property of Tenant and
persons claiming by, through, or under Tenant at any time on the
Premises, shall be at the sole risk of Tenant or such person and
if the whole or any part thereof shall be destroyed or damaged by
any cause whatever, no part of said loss or damage shall be borne
by Landlord; except that to the extent required by Massachusetts
law the foregoing shall not exculpate the Landlord from liability
for its own negligence or willful act.
8.4 Estoppel Certification. Upon not less than fifteen (15) days prior
written request, Landlord and Tenant agree to execute, acknowledge
and deliver to the other a statement certifying this Lease is
unmodified and in full force and effect (or stating any
modifications), and the dates to which the Annual Fixed Rent and
all additional rent and other charges have been paid and any other
information reasonably requested. Such statement may be relied
upon by any prospective purchaser, mortgagee or lending source.
8.5 Overloading, Nuisance; Restrictions on Research Activity, Volatile
or Dangerous Substances. Tenant shall not injure, overload,
deface, or otherwise harm the Premises, nor commit any nuisance,
nor permit the emission of any objectionable noise, noxious or
objectionable odor or of any particulate residue; nor make, allow
or suffer any waste; nor make any use of the Premises which is
improper, offensive or contrary to any law, ordinance, order or
regulation of any public authority or which will invalidate or
increase the premium of any insurance.
All chemical, biological and similar work shall be conducted in a
safe manner and always in strict compliance
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with applicable law and guidelines of governmental authority.
All dangerous substances shall be stored safely and securely in
compliance with law and applicable governmental and insurance
requirements and guidelines.
8.6 Yield Up. At the expiration or earlier termination of this Lease,
Tenant shall surrender all keys to the Premises, remove all
personal property, remove such installations made by it as
Landlord may request and all Tenant's signs, and yield up the
Premises (including all Tenant's installations and improvements
made except for those which Landlord requested Tenant to remove)
broom clean and in the same good order, repair and condition in
which Tenant is obliged to maintain the same under this Lease.
Tenant's property not removed within thirty (30) days may be
disposed of by Landlord as Landlord shall determine. Tenant
indemnifies Landlord against all loss, cost and damage, including
without limitation reasonable attorneys' fees and costs resulting
from Tenant's failure and delay in surrendering the Premises. If
Tenant's failure to surrender the Premises as required hereunder
renders the Premises unavailable for use by another tenant (for
example, where Tenant or another person claiming under Tenant
remains in occupancy or Tenant or other such person has caused,
permitted or suffered the contamination of, the Premises or areas
adjacent thereto with a Hazardous Substance), Tenant shall be
deemed in holdover status while such state of facts continues to
exist and shall be liable under Section 13 in addition to all
other liability under the Lease, including this Section.
8.6.1 What are intended to be Fixtures. Equipment, improvements and
appurtenances attached to or built into the Premises prior to or
during the Term shall be and remain part of the Premises and are
intended as real estate fixtures and shall not be removed by
Tenant unless otherwise expressly provided in this Lease or except
as otherwise expressly provided in a separate written agreement
signed by both Landlord and Tenant. All electrical, plumbing,
heating and sprinkling systems,
-30
fixtures and outlets, vaults, paneling, molding, shelving,
radiator enclosures, flooring, HVAC equipment and HVAC ducts shall
be deemed to be real estate fixtures, whether or not attached to
or built into the Premises.
8.7 Alterations and Improvements by Tenant after Term Commencement.
Tenant shall make no alterations, installations, removals,
additions or improvements in or to the Premises without Landlord's
prior written consent, which shall not unreasonably be withheld.
Any approvals for occupancy of the Premises, municipal or
otherwise, necessitated by the nature of Tenant's business shall
be Tenant's sole responsibility.
8.8 Floor Load; Heavy Machinery. Tenant shall place no load upon
any floor of the Premises exceeding the floor load per square foot
of area which such floor was designed to carry or which in its
present condition it is capable of carrying without damage and
which is allowed by law.
8.9 Assignment and Subletting. Tenant shall not assign this Lease, or
sublet or license the Premises or any portion thereof, or
advertise the Premises for assignment or subletting or permit the
occupancy of all or any portion of the Premises by anybody other
than tenant (all of the foregoing actions are sometimes
collectively referred to as an "assignment") without obtaining, on
each occasion, the prior written consent of Landlord. Except as
provided in the following sentence, assignment shall include,
without limitation, any transfer of Tenant's interest in this
Lease by operation of law, merger or consolidation of Tenant into
any other firm or corporation and the transfer or sale of a
controlling interest in Tenant, whiter by sale of its capital
stock or otherwise. Assignment shall not include (1) assignment or
sublease to any parent or subsidiary corporation or corporation
under identical ownership, (2) sale of the original Tenant by
stock transfer or sale of substantial all of its assets (3)
admission of additional stockholders or other investors or (4)
merger, consolidation or other reorganization involving the
original Tenant, provided in each instance that
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Landlord receives prior written notice thereof and receives,
promptly on request, all information with respect to the
transaction or new entity, as the case may be, as Landlord had
previously received (or was requested) as to the original Tenant.
Tenant shall not offer to make or enter into negotiations with
respect to an assignment with (i) any tenant of Landlord in any
property in the East Cambridge environs of the Building, or any
affiliate of, or any entity owned directly or indirectly by, such
a tenant; and (ii) any party with whom Landlord is then
negotiating with respect to other space in any property in the
East Cambridge environs of the Building. Tenant's request for
consent to an assignment shall include a copy of the proposed
instrument of assignment, if available, or else a statement of the
proposed assignment in detail satisfactory to Landlord. Landlord
shall have the option (but not the obligation) to terminate the
Lease, or that portion proposed to be assigned by giving Tenant
notice of such termination within 60 days of Landlord's receipt of
Tenant's request. If Tenant does make an assignment hereunder, and
if the aggregate rent and all other amounts and charges payable to
Tenant under such assignment less out-of-pocket costs to Tenant of
such transaction exceed the rent and other charges payable
hereunder, Tenant shall pay to Landlord, as additional rent, the
amount of such excess when the same is payable to Tenant.
Tenant shall pay to Landlord, as additional rent, Landlord's
reasonable legal fees and other expenses incurred in connection
with any proposed assignment, including without limitation fees
for review of documents. Notwithstanding any such assignment, the
original Tenant named herein shall remain directly and primarily
obligated under this Lease.
It shall be a condition to the effectiveness of any such
assignment that such assignee, subtenant, licensee or occupant
(collectively, an "assignee") agree directly with Landlord to be
liable, jointly and severally with Tenant, for the performance of
all of Tenant's agreements
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under this Lease (including without limitation payment of rent).
Landlord may collect rent and other charges from the assignee and
apply the net amount collected to the rent and other charges
herein reserved, but no such assignment or collection shall be
deemed a waiver of the provisions of Section 8.9, or the
acceptance of the assignee as a Tenant, or a release of Tenant
from direct and primary liability for the further performance of
covenants on the part of Tenant herein contained. The consent by
Landlord to an assignment shall not relieve Tenant from obtaining
the express consent of Landlord to any further assignment.
In event of any assignment requiring Landlord's consent, (1)
Tenant's right to extend the Term shall be void and of no further
force or effect unless previously exercised by Tenant, (2)
Tenant's right to expand the Premises pursuant to either Section
3.5 or 3.6 shall be void and of no further force or effect except
as to premises as to which (i) Tenant has exercised its right of
refusal or expansion and (ii) either (a) has taken possession
thereof for active conduct of its business or (ii) has commenced
construction of improvements therein. In any event, Landlord's
obligation to reimburse Tenant's costs of improvements shall
terminate with respect to any portion of the Premises subject to
any such assignment.
8.10 Landlord's Access to Premises. (a) Landlord may erect, use and
maintain pipes, ducts and conduits in and through the Premises
provided the same do not materially interfere with Tenant's use
and enjoyment of the Premises; (b) Landlord and any mortgagee and
their representatives may enter the Premises at reasonable times
to inspect, repair, replace or improve the Premises or the
Building or equipment or to comply with any law, order or
requirement of governmental or other authority or of exercise any
right reserved to Landlord by this Lease; (c) Landlord may at
reasonable times, show the Premises to other persons. If during
the last month of the Term, Tenant shall have removed all or
substantially all of Tenant's property therefrom, Landlord may
immediately enter and alter, renovate and
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redecorate the Premises without abatement of rent and without
liability to Tenant for compensation, and such acts shall have no
effect upon this Lease.
Landlord shall exercise its right of access with due regard for
Tenant's security requirements and in a manner which is intended
to minimize disruption to Tenant.
8.11 Construction Activity. Construction activity in or near the
Premises or the Building shall neither entitle Tenant to any
reduction in rent nor cause Landlord to have any liability to
Tenant.
8.12 Tenant's Financial Statements. Within 90 days after the end of
Tenant's fiscal years, Tenant shall furnish Landlord with a true
copy of Tenant's annual financial statements, prepared by a
certified public accountant, for Tenant's fiscal year just ended.
Tenant shall also furnish Landlord with true copies of Tenant's
quarterly financial statements to the extent the same are prepared
for Tenant. Tenant agrees to meet with Landlord at Landlord's
request to review and discuss Tenant's financial statements.
Landlord agrees not to disclose any information received pursuant
to this Section to any person other than Landlord's employees or
any mortgagee or prospective mortgagee, or prospective purchaser,
of the property of which the Building is a part.
9.0 INSURANCE
9.1 Public Liability Insurance. Tenant shall take out and maintain in
force throughout the Term comprehensive public liability insurance
naming Landlord, Tenant and all persons claiming under them as
insureds against all claims and demands for any injury to person
or property which may be claimed to have occurred on the Premises,
the Building, the grounds and ways adjoining the Building, in an
amount which at the beginning of the Term shall not be less than
$1,000,000 for injury or
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death of one person, $3,000,000 for injury or death of more than
one person in a single accident and $500,000 for property damage
or such higher amounts as Landlord shall determine are required by
reason of Tenant's use of the Premises and which thereafter, if
Landlord requires, shall be in such higher amounts as are then
consistent with sound commercial practice in Cambridge,
Massachusetts.
9.2 Casualty Insurance. Tenant shall take out and maintain throughout
the Term a policy of fire, vandalism, malicious mischief, extended
coverage and so-called all risk coverage insurance insuring
Tenant's improvements to the Premises and Tenant's fixtures,
furnishings and equipment to their full insurable value, except
that any such insurance may be written with an 80% co-insurance
clause. Such insurance shall include waiver of subrogation
protection in conformance with section 9.5 if available on
commercially reasonable terms.
With Landlord's prior written consent, which shall not be
unreasonably withheld, Tenant may self-insure property which will
belong to Tenant at the termination of the Lease.
9.3 Certificate of Insurance. Such insurance shall be placed with
insurers satisfactory to Landlord and authorized to do business in
Massachusetts. Such insurance shall provide that it shall not be
canceled without at least ten (10) days prior written notice to
each insured named therein. Upon Landlord's request, Tenant shall
furnish Landlord Certificates of Insurance for all such insurance
and, at Landlord's request, shall furnish any mortgage
Certificates together with evidence satisfactory to Landlord of
the payment of all premiums.
9.4 Landlord's Insurance. Landlord shall maintain during the Term
such commercially reasonable policies of casualty insurance and
other coverages in such amounts and insuring against such risks as
Landlord shall from time to time determine. Such insurance shall
include waiver of subrogation protection in conformance with
Section 9.5 if available on commercially reasonable terms.
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Tenant agrees to cooperate with Landlord in obtaining and
maintaining such insurance.
9.5 Waiver of Subrogation. Landlord and Tenant hereby release each
other, to the extent of their respective insurance coverages, from
any and all liability for any loss or damage caused by fire or any
of the extended coverage casualties, even if such fire or other
casualty shall be brought about by the fault or negligence of the
party benefited by the release or its agents, provided, however,
this release shall be in force and effect only with respect to
loss or damage occurring during such time as the policies of fire
and extended coverage insurance required hereunder to be
maintained by the releasing party shall contain a clause to the
effect that such release shall not affect said policies or the
right of the releasing party to recover thereunder. Landlord and
Tenant each agree to make best efforts to have their respective
fire and extended coverage insurance policies include such a
clause so long as the same is obtainable without extra cost, or if
extra cost is chargeable therefor, so long as the party benefited
by such clause in its discretion chooses to pay such extra cost.
9.6 Increase in Insurance Risk. If Tenant's use of or failure to use,
the Premises results in any increase in Landlord's insurance rates
on the Building or Landlord's other property near the Building,
Tenant shall reimburse Landlord for such increase in insurance
charges, provided that Tenant was the cause of the increase.
Without limiting the generality of the foregoing, the insurer's
statement to that effect shall be sufficient.
10. DAMAGE TO PREMISES AND CONSEQUENCES OF EMINENT DOMAIN
10.1 Repair and Restoration of Casualty Loss. If the Premises or any
part thereof shall be damaged by an insured casualty, Landlord
shall proceed with diligence, and at its expense, to repair or
cause to be repaired such damage to the Premises (excluding all
Tenant's property and all Tenant's improvements to the Building
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and the Premises which are Tenant's sole responsibility), subject
to the then applicable statues, building codes, zoning ordinances
and regulations of governmental authority, but only to the extent
of insurance proceeds available to Landlord. Tenant shall repair
or cause to be repaired damage to Tenant improvements, whether or
not covered by insurance and whether or not the proceeds of such
insurance are adequate to defray the cost of repair. All repairs
to and replacements of property which Tenant is entitled to remove
under Section 8.6.1 shall be made by and at the expense of Tenant.
Landlord shall not be liable for delays in the making of any such
repairs which are beyond Landlord's reasonable control, nor for
any inconvenience or annoyance to Tenant or injury to Tenant's
business resulting from such delays, but Landlord shall use
reasonable efforts to minimize any disruption.
10.2 Abatement of Rent. If the Premises or a part of them shall have
been rendered unfit for use and occupation by reason of such
damage, rent shall be abated in proportion to the space not
available to Tenant until the Premises are repaired (except as to
property to be repaired by or at the expense of Tenant) as nearly
as practicable to the condition the Premises were in immediately
prior to their damage. If Landlord, or any mortgagee of the
Building shall be unable to collect insurance proceeds (including
rent insurance proceeds) applicable to the damage because of some
action inaction on the part of Tenant, or the employee, licensees
or invitees of Tenant, the cost of repairing such damage shall be
paid by Tenant and there shall be no abatement of rent.
10.3 Termination for Major Damage or If Damaged at End of Term. If (i)
the Premises are damaged by fire or other casualty (whether or not
insured) at any time during the last eighteen (18) months of the
term hereof such that the cost to repair the damage is reasonably
estimated to exceed one-third (1/3) of the total Annual Fixed Rent
plus additional rent (projected on the basis of the preceding
lease year) payable for the period from the estimated date of
restoration until the Termination Date
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(provided, however, that Landlord shall have no duty of repair for
damage occurring during the final six (6) months of the Term),
(ii) the Building is so damaged by fire or other casualty (whether
or not insured) that substantial alteration or reconstruction or
demolition of the Building shall in Landlord's judgment be
required, (iii) the Building is damaged or destroyed to the extent
of five (5%) percent or more of the then insurable replacement
value from any cause not covered by the insurance carried by
Landlord under Section 9.4, or (iv) the available insurance
proceeds, in Landlord's reasonable judgment, would be insufficient
to cover the cost of repair, or (v) in Landlord's judgment the
Premises cannot be restored as required by this Lease within 90
working days after work commences, then and in any such events
this Lease and the term hereof may be terminated at the election
of Landlord by a notice in writing of its election so to terminate
which shall be given by Landlord to Tenant within sixty (60) days
following such fire or other casualty. The effective termination
date shall be not less than thirty (30) days after the day on
which such termination notice is received by Tenant. In the event
of any termination, this Lease and the term hereof shall expire as
of such effective termination date as though that were the
Termination Date as stated in Section 1 and the Annual Fixed Rent,
additional rent and all other charges shall be apportioned as of
such date.
Tenant shall have the right to terminate this lease following any
such damage occurring during the last eighteen (18) months of the
Term (as if may have been extended) if Landlord refuses to
provide, within a reasonable time after Tenant's written request,
written assurance that the damaged portion of the Premises will be
restored for Tenant's use within nine (9) months from the date of
casualty or, at any time during the Term if Landlord has assured
Tenant that the Premises will be restored within nine (9) months
but Landlord, having so assured Tenant, fails to deliver the
restored Premises for Tenant's use on substantially that schedule.
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10.4 Eminent Domain. In the event that the Premises or any part thereof
shall be taken by eminent domain for any public or quasi-public
use, or, by virtue of any such taking, shall suffer any damage
(direct, indirect or consequential) for which Landlord or Tenant
shall be entitled to compensation, then this Lease may be
terminated at the election of Landlord by a notice in writing of
its election so to terminate which shall be given by Landlord to
Tenant within sixty (60) days following the date on which Landlord
shall have received notice of such taking, appropriation or
condemnation. In the event that a substantial part of the Premises
(or, if the Premises include all or part of more than one
building, of any building included in the Premises) shall be
taken, appropriated or condemned or that all access to the
Premises shall be permanently taken, then (and in any such event)
this Lease and the Term hereof may be terminated as to the
building(s) taken at the election of Tenant by a notice in writing
of its election so to terminate which shall be given by Tenant to
Landlord within sixty (60) days following the date on which Tenant
shall have received notice of such taking, appropriation or
condemnation. No action of public authorities with respect to the
public streets in the vicinity of the Building, including without
limitation elimination of vehicular access thereon, shall affect
this Lease in any way except as stated in this section 10.4.
Upon the giving of any such notice of termination (either by
Landlord or Tenant) this Lease and the Term hereof shall terminate
on or retroactively as of the date on which Tenant shall be
required to vacate any part of the Premises or shall be deprived
of a substantial part of the means of access thereto, provided,
however, that Landlord may in Landlord's notice elect to terminate
this Lease and the Term hereof retroactively as of the date on
which such taking became legally effective. Rent and other charges
shall be apportioned as of such termination date. If neither party
(having the right so to do) elects to terminate, Landlord will,
with reasonable diligence and at Landlord's expense, restore the
remainder of the Premises, or the remainder of the means of
access, as nearly as practicable to the
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same condition as existed prior to such taking. A just proportion
of the rent, according to the nature and extent of the injury to
the Premises, shall be abated until what may remain of the
Premises shall be restored as aforesaid, and thereafter a just
proportion of the rent according to the nature and extent of the
part of the Premises so taken shall be abated for the balance of
the term of this Lease.
Except for any award expressly and specifically reimbursing Tenant
for moving or relocation expenses, Landlord reserves all rights to
compensation and damages created, accrued or accruing by reason of
any such taking, in implementation and in confirmation of which
Tenant hereby acknowledges that Landlord shall be entitled to
receive all such compensation and damages, grants to Landlord all
and whatever rights (if any) Tenant may have to such compensation
and damages, and agrees to execute and deliver all and whatever
further instruments of assignment as Landlord may from time to
time request. In the event of any taking of the Premises or any
part thereof for temporary use, (i) this Lease shall be and remain
unaffected thereby, (ii) rent shall not xxxxx, and (iii) Tenant
shall be entitled to receive for itself any aware made for such
use, provided, that if any taking is for a period extending beyond
the Term of this Lease, such award shall be apportioned between
Landlord and Tenant as of the Termination Date or earlier
termination of this Lease.
11. DEFAULT AND REMEDIES
11.1 Events of Default. (a) If Tenant shall default in the
performance of any of its obligations to pay the Annual Rixed Tent
or additional rent hereundet within ten (10) business days after
LAndlord gives written notice of nonpayment, or if, within thirty
(30) days after written notice from Landlord to Tenant specifying
any ither default or defaults, Tenant has not commenced diligently
to correct the xxxxxxx or defaults so specified or has not
thereafter diligently pursued such correction to completion, or
(b) if any assignment shall be made by Tenant for the benefit of
creditors, or (c) if Tenant's
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leasehold interest shall be taken on execution, or (d) if a
petition is filed by Tenant or any guarantor of Tenant's
obligaions under this Lease for adjudication as a bankrupt or for
reorganization or any arrangement under any provisions of the
Bankruptcy Code as then in force and effect, or (e) if an
involuntary petition under any of the provisions of said
Bankruptcy Code is filed against Tenant or any such guarantor and
is not dismissed eithin sixty (60) days thereafter, or (f) if a
receiver, or insolvent according to law, or (g) if a receiver,
trustee or assignee shall be appointed for the whole or any part
of Tenant's property or the property of any such guarantor and
shall not be removed within sixty (60) days thereafter, then, and
in any of such cases, Landlord and its agents lawfully may, in
addition to and not in derogation of any remidies for any
preceding breach of covenant, immediately or at any time
thereafter**and without demand or notice and with or without
process of law enter into and upon the Premises or any part therof
in the name of the whole or mail a notice of termination addressed
to Tenant at the Premises, and respossess the same as of
Landlord's former estate and expel Tenant and those claiming
through or under Tenant and remove its and their effects without
being deemed guilty of any manner of trespass and wihtout
prijudice or priorbreach of covenant, and upon such entry or
mailing as aforesaid this Lease xxxx terminate, Tenant hereby
waiving all statutory rights (including wihtout limitation rights
of redemption, if any) to the extent such rights may be lawfully
waived, and Landlord, with notice to Tenant, may stored Tenant's
effects, and those of any person claiming through or under Tenant
at the expense and risk of Tenant, and , if Landlord so elects,
may sell such effects at public auction and apply the net proceeds
to the payment of all sums due to Landlord from Tenant, if any,
and pay over the paclance, if any, top Tenant. For purposes of
this Section 11.1 and all sections under Article 11, "Tenant"
shall include any guarantor of any of Tenant's obligations under
this Lease and any corporation of which Tenant is a controlled
subsidary.
**so long as Landlord has not accepted a cure of such default
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11.2 Deleted.
11.3 Damages - Termination. Upon the termination of this Lease
under the provisions of this Article 11, then except as otherwise
provided in Section 11.2, Tenant shall pay to Landlord the rent
and other charges payable by Tenant to Landlord up to the time of
such termination, shall continue to be liable for any preceding
breach of covenant, and in addition, shall pay to Landlord as
damages, at the election of Landlord e either:
(x) the amount by which, at the time of the termination of this
Lease (or at any time there after if Landlord shall have
initially elected damages under subparagraph (y), below), (i)
the aggregate of the rent, taxes, Operating Expenses and other
charges projected over the period commencing with such
termination and ending on the Termination Date as stated in
Section 1 (or such later date to which the Lease has been
extended) exceeds (ii) the aggregate projected value of the
premises for such period, each discounted to present value at
the then prevailing rate for Treasury bills having a maturity
which most closely corresponds to the remaining Term of the
Lease , or:
(y) amounts equal to the rent, taxes and Operating Expenses and
other charges which would have been payable by Tenant had
this Lease not been so terminated, payable upon the due dates
therefor specified herein following such termination and until
the Termination Date as specified in Section 1, (or such later
date to which the Lease has been extended) provided, however,
if Landlord shall re-let the Premises during such period, that
Landlord shall credit Tenant with the net rents received by
Landlord from such re-letting, such net rents to be determined
by first deducting from the gross rents as and when received
by Landlord from such reletting the expenses incurred or paid
by Landlord in terminating this Lease, as well as the expenses
of re-letting, including altering and preparing the Premises
for new tenants, brokers' commissions,
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reasonable attorneys' fees and all other similar and
dissimilar expenses properly chargeable against the Premises
and the rental therefrom, it being understood that any such
re-letting may be for a period equal to or shorter or longer
than the remaining term of this Lease as extended; and
provided, further, that (i) in no event shall Tenant be
entitled to receive any excess of such net rents over the sums
payable by Tenant to Landlord hereunder and (ii) in no event
shall Tenant be entitled in any suit for the collection of
damages pursuant to this Subparagraph (y) to a credit in
respect of any net rents from a reletting except to the extent
that such net rents are actually received by Landlord prior to
the commencement of such suit. If the Premises or any part
thereof should be re-let in combination with other space, then
proper apportionment on a square foot area basis shall be made
of the rent received from such re-letting and of the expenses
of reletting.
Suit or suits for the recovery of such damages, or any
installments thereof, may be brought by Landlord from time to time
at its election, and nothing contained herein shall be deemed to
require Landlord to postpone suit until the date when the term of
this Lease would have expired if it had not been terminated
hereunder.
Nothing herein contained shall be construed as limiting or
precluding the recovery by Landlord against Tenant of any sums or
damages to which, in addition to the damages particularly provided
above, Landlord may lawfully be entitled by reason of any default
hereunder on the part of Tenant.
11.4 Effect of Taxes and Operating Expenses. In the event of any
termination of this Lease or re-entry by Landlord under the
provisions of this Article 11 or other proceeding or action or any
provision of law by reason of default under this Lease on the part
of Tenant, then for the purpose of computing damages as shall be
payable pursuant to this Article 11, it is agreed that:
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(a) If (i) Landlord shall be entitled to liquidated damages under
Section 11.2, or if (ii) Landlord shall elect that damages be
payable pursuant to Subparagraph (x) of Section 11.3, the
computation of such damage shall be made, insofar as the same
relates to Taxes and Operating Expense by taking the product
of (i) the sum of Taxes and Operating Expense for the
immediately preceding fiscal year of Landlord, respectively,
times (ii) the number of years remaining of the full term
hereby granted, on the assumption that the amount of such
Taxes and Operating Expense so payable for the immediately
preceding fiscal year of Landlord would have remained constant
for each subsequent fiscal year of the full term hereby
granted.
(b) If Landlord shall elect that such damages be payable pursuant
to Subparagraph (y) of Section 11.3, the sums referred to in
said Subparagraph (y) shall include, without limitation, the
amount of the Taxes and Operating Expense which under the
provisions of Section 6.2 would be payable by Tenant for the
period referred to in said Subparagraph (y).
11.5 Landlord's Expenses in Performing Obligations of Tenant. If
Tenant shall default in the performance of any covenant of this
Lease, and such default continues beyond any applicable grace
periods, Landlord may without waiving or releasing any right or
remedy immediately, or at any time thereafter, without notice,
perform the same for Tenant's account and Tenant shall pay on
demand as reimbursement the sum so paid by Landlord with all
interests, costs and damages.
11.6 Landlord's Remedies Not Exclusive. Landlord's remedies stated
in this Lease are cumulative and not exclusive of any other
remedies or means of redress available to Landlord by law.
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11.7 Landlord's Default. Landlord shall not be in default of any
of its obligations hereunder unless it shall fail to perform such
obligations within thirty (30) days (or such further time as is
reasonably necessary) after receipt of written notice thereof from
Tenant.
11.8 Effect of Waivers of Default. No consent or waiver, express
or implied, by either party to any act or omission which otherwise
would be a breach of the other party's obligations shall in any
way be construed to impair such other party's continuing
obligations hereunder or operate to permit similar acts or
omission.
11.9 Repeated Defaults. No notice of default need be given under
Section 11.1, and no default in the payment of Annual Fixed Rent
or Additional Rent shall be curable if on two prior occasions in
any one lease year Tenant has failed to make such payment or
received a notice of default from Landlord and, in such event,
Landlord shall have the right to terminate this Lease as in
Section 11.1 provided and the right to damages as in Section 11.3
provided.
11.10 No Accord and Satisfaction. No acceptance by Landlord of a
lesser sum than the Annual Fixed Rent, Additional Rent or any
other charge then due shall be deemed to be other than on account
of the earliest installment of such rent or charge due, nor shall
any endorsement or statement on any check or any letter
accompanying any check for payment as rent or other charge be
deemed an accord and satisfaction, and Landlord may accept such
check or payment without prejudice to Landlord's right to recover
the balance of such installment or pursue any other remedy in this
Lease provided.
12. SUBORDINATION
12.1 Subordination. This Lease is subject and subordinate to all
matters of record including without limitation, ground leases and
mortgages, any of which may now or hereafter be placed on or
affect the Premises, or any part thereof and to each advance made
or to be made
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under any such mortgages, and to all renewals, modifications,
consolidations, replacements and extensions thereof and all
substitutions therefor. This Section 12 Shall be self-operative
and no further instrument of subordination shall be required. In
confirmation of such subordination, Tenant shall execute and
deliver such subordination, Tenant shall execute an deliver
promptly (and in any event within ten (10) business days of
Landlord's written request therefor) any certificate that Landlord
and/or any mortgagee and /or lessor under any ground or underlying
lease and/or their respective successors in interest may request.
Landlord agrees to use reasonable efforts to obtain a
nondisturbance agreement form the present an any future mortgagee.
"Reasonable efforts" shall consist of (1) submitting to the
mortgagee a written request and (2) providing the mortgagee with
information it requests.
Without limitation of any of the provisions of this Lease, if any
ground lessor or mortgagee shall succeed to the interest of
Landlord under this Lease; and in such event, the Tenant (which in
the case of a ground lease shall be within thirty (30) days after
such expiration or sooner termination) that it is succeeding to
the interest of Landlord under this Lease; and in such event, the
Tenant shall attorn to such successor and shall ipso facto be and
become bound directly to such successor in interest to Landlord to
perform and observe all the Tenant's obligations under this Lease
without the necessity of the execution of any further instrument.
Nevertheless, Tenant agrees at any time and from time to time
during the term hereof to execute a suitable instrument in
confirmation of Tenant's agreement to attorn, as aforesaid.
13. HOLDING OVER
13.1 Holding Over.If Tenant or anyone claiming under Tenant shall
remain in occupancy of all or any portion of the Premises, or
shall fail to yield-up the Premises free of
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Hazardous Substances, in each case delaying rental or delivery of
possession of the Premises to another tenant, Tenant or such other
person shall be deemed to be holding over after the termination of
this Lease.
If Tenant or anyone claiming under Tenant shall remain in
occupancy of the Premises or any part thereof after the expiration
of the Term of this Lease without any agreement in writing between
Landlord and Tenant with respect thereto, prior to acceptance of
rent by Landlord Tenant (or such person claiming under Tenant)
shall be deemed a tenant at sufferance, and after acceptance of
rent by Landlord a tenant from month-to-month, in either case at a
use and occupancy charge equal to twice the rate of Annual Fixed
Rent plus all other charges payable under this Lease, and subject
to the provisions of this Lease (excluding all provisions for
rent) insofar as the same may be applicable. Notwithstanding the
foregoing, prior to acceptance of rent for any period after the
Term, Landlord, at its option, may re-enter and take possession of
the Premises or any part thereof forthwith without process or by
any manner provided by law, in every case without prejudice to
claim for the use and occupancy charge as stated above.
If the Premises of areas adjacent thereto have been contaminated
with Hazardous Substances by Tenant's act or neglect (but without
regard to fault), thereby delaying rental of the Premises to
another tenant by reason of order of public health or safety
official or the like, or by reason of the prospective tenant'(s)
refusal to occupy the contaminated portion of the Premises, Tenant
shall be deemed to continue in possession of the affected Premises
as a tenant at sufferance as aforesaid for the duration of such
delay at the use and occupancy charge set forth above and subject
to the provisions of this Lease as aforesaid, and Tenant agrees
that unless Tenant (and such person claiming under Tenant) is in
bankruptcy or insolvency proceedings or similarly disabled from
performing Tenant's obligations hereunder, Landlord has the right
at Landlord's election, but no duty or obligation, to restore the
Premises to the condition required at the
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termination of this lease hereunder, and tenant is solely
responsible to do so. Landlord's election to make the Premises
conform with the requirements of this Lease, such as by removing
any Hazardous Substances, shall not diminish in any way Landlord's
claim for the use and occupancy charge as aforesaid for the
duration of any delay in re-leasing the Premises resulting
therefrom.
14. MISCELLANEOUS PROVISIONS
14.1 Notices. All notices hereunder shall be in writing and deemed duly
served if delivered in hand or to a recognized national overnight
courier service such as Federal Express, or if mailed, certified
mail, to Tenant, at the Original Address of Tenant or such other
address as Tenant shall have last designated by notice in writing
to Landlord and, Landlord, at Original Address of Landlord or such
other address as Landlord shall have last designated by notice in
writing to Tenant. At Tenant's written request, a courtesy notice
will also be given to Tenant's counsel named in such request but
such notice shall not be necessary to Landlord's rights.
14.2 Quite Enjoyment. Upon Tenant's paying the rent and performing all
provisions of this Lease, Tenant may peaceably and quietly have,
hold and enjoy the Premises during the Term without any manner of
hindrance or molestation from Landlord or anyone claiming under
Landlord.
14.3 Limitation of Landlord's Liability. Tenant shall neither assert
nor seek to enforce any claim for breach of this Lease against any
of Landlord's assets other than Landlord's interest in the
Premises and in the rents, issues and profits thereof, and Tenant
agrees to look solely to such interest for the satisfaction of any
liability of Landlord under this Lease. In no event shall Landlord
(which term shall include, without limitation any of the officers,
trustees, directors, partners, beneficiaries, joint ventures,
members, stockholders or other principals or representatives,
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disclosed or undisclosed, thereof) ever be personally liable for
any such liability or ever be liable for consequential damages.
14.4 Acts of God. In any case where either party hereto is required to
do any act, other than the payment of Annual Fixed Rent or
additional rent, delays caused by or resulting from acts of God,
war, civil commotion, fire, flood or other casualty, labor
difficulties, shortages of labor, materials or equipment, unusual
government regulations, moratorium or similar acts of government,
unusually severe weather, or other causes beyond such party's
reasonable control shall not be counted in determining the time
during which such act shall be completed, whether such time be
designated by a fixed date, a fixed time or "a reasonable time,"
and such time shall be deemed to be extended by the period of such
delay.
14.5 Applicable Law and Construction. This Lease is made under
Massachusetts law and shall bind Landlord and Tenant and their
respective heirs, successors and assigns. If any provisions of
this Lease shall to any extent be invalid, the remainder of this
Lease shall to any valid portion of such provisions, shall not be
affected thereby. There are no oral or written agreements between
Landlord and Tenant affecting this Lease. This Lease may be
amended only by instruments in writing executed by Landlord and
Tenant. The titles of the several Articles and Sections contained
herein are for convenience only and shall not be considered in
construing this Lease.
14.6 Arbitration. Wherever this Lease provides that any question
shall be determined by arbitration, such question shall be
determined by arbitration in accordance with the rules of the
American Arbitration Association and judgment upon the award
rendered shall be binding upon the parties hereto and may be
entered in any court having jurisdiction. Arbitration shall be
held in Boston, Massachusetts and the cost thereof shall be borne
equally between the parties.
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14.7 Timely Performance. Time is of the essence in all matters
relating to this Lease.
14.8 No Broker. Tenant represents and warrants that it has not directly
or indirectly dealt, with respect to the leasing of the Building
nor had its attention called to the Premises by anyone other than
the broker, person or firm, if any, designated in Section 1.
Tenant agrees to exonerate and save harmless and indemnify
Landlord against any claims for a commission arising out of the
execution and delivery of this Lease or out of negotiations
between Landlord and Tenant with respect to the leasing of other
space in the Building, provided that Landlord shall be solely
responsible for the payment of brokerage commissions to the
broker, person or firm, if any, designated in Section 1.
14.9 Financing Requirements. If in connection with obtaining financing
for the Building, a bank, insurance company, pension trust or
other institutional lender shall request reasonable modifications
in this Lease as a condition to such financing, Tenant will not
unreasonably withhold, delay or condition its consent thereto
provided that such modifications do not increase the obligations
of Tenant hereunder or materially adversely affect the leasehold
interest hereby created.
14.10 Agreement Made Only When Lease Signed. This Lease shall bind
Landlord and Tenant only when executed and delivered by both. This
Lease when signed by one party and delivered to the other shall
constitute an offer to enter into a lease on the terms set forth
herein. No submission of this lease, unsigned by either party to
the other shall constitute an offer to lease.
14.11 Demolition. In the event Landlord decides to demolish the
Building, Landlord may terminate this Lease by not less that
eighteen (18) months notice to Tenant, and upon the giving of such
notice this Lease shall, without the necessity of further writing,
terminate on the Termination Date stated in such notice with the
same effect as if such date had been the Termination Date stated
in Section 1.1, provided Landlord reimburses Tenant's
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unamortized cost of those improvements to the Premises which are
to become Landlord's property at the end of the Term. At
Landlord's request, Tenant agrees to provide Landlord with a
written statement of such costs in reasonable detail.
14.2 Deleted.
14.13 No Parking. This Lease does not create any parking privileges
on any of Landlord's property.
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EXHIBIT 1
FLOOR PLAN OF PREMISES AT 00 XXXXXX XXXXXX
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EXHIBIT 2
FLOOR PLAN OF PREMISES AT 00 XXXXXX XXXXXX
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EXHIBIT 3
TENANT'S WORK
As to 00 Xxxxxx Xxxxxx - To be attached prior to execution.
As to 00 Xxxxxx Xxxxxx - To be submitted by Tenant and approved by Landlord
after execution of Lease.
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EXHIBIT 4
FLOOR PLAN OF PREMISES AT 00 XXXXXX XXXXXX
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EXHIBIT 5
1. Reference Data as to the Premises at 00 Xxxxxx Xxxxxx. Each reference
is this Lease to the following subjects shall be construed to incorporate
the data for that subject stated herein.
PREMISES: The premises shown on Exhibit 4 containing approximately 5,000 square
feet located in the building known as and numbered 00 Xxxxxx Xxxxxx
in Cambridge, Massachusetts.
LANDLORD: Trustees of The Cambridge East Trust, as Trustees and not
individually
ORIGINAL ADDRESS OF LANDLORD: c/x Xxxx and Company, Inc.
000 Xxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
TENANT: Metasyn, Inc., a Delaware corporation
ORIGINAL ADDRESS OF TENANT: 00 Xxxxxx Xxxxxx
Xxxxxxxxx, XX
TERM: The period from the Commencement Date until the Termination Date
COMMENCEMENT DATE: As stated in section 3.5
TERMINATION DATE: December 31, 1997 (subject to extension as set
forth in the Lease)
ANNUAL FIXED RENT: 01/1/93-12/31/93 - $40,000
(as applicable) 01/1/94-12/31/94 - $45,000
01/1/95-12/31/95 - $50,000
01/1/96-12/31/96 - $55,000
01/1/97-12/31/97 - $60,000
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MONTHLY PAYMENT: 01/1/93-12/31/93 - $3,333.33
(as applicable) 01/1/94-12/31/94 - $3,750.00
01/1/95-12/31/95 - $4,166.67
01/1/96-12/31/96 - $4,503.30
01/1/96-12/31/97 - $5,000.00
LANDLORD'S RENOVATIONS, ALTERATIONS, IMPROVEMENTS: None other than as
stated in Sections 3.5 and 4.1
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TENANT'S PERCENTAGE OF OPERATING EXPENSES REAL ESTATE TAXES: 100%
TAX BASE YEAR: None
PERMITTED USES: Office use, laboratory use and ancillary animal space
to the extent permitted by applicable law, and no
other use
SECURITY DEPOSIT: As stated in Section 1
BROKER: Murphy, Lynch, Xxxxx & Partners
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EXHIBIT 6
FLOOR PLAN OF PREMISES AT 00 XXXXXX XXXXXX
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EXHIBIT 7
1. Reference Data as to 00 Xxxxxx Xxxxxx. Each reference is this Lease to the
following subjects shall be construed to incorporate the data for that
subject stated in this Section 1.
PREMISES: The premises shown on Exhibit 6 containing approximately 2,500 square
feet located in the building known as and numbered 00 Xxxxxx Xxxxxx
in Cambridge, Massachusetts.
LANDLORD: Trustees of The Cambridge East Trust, as Trustees and not
individually
ORIGINAL ADDRESS OF LANDLORD: c/x Xxxx and Company, Inc.
000 Xxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
TENANT: Metasyn, Inc., a Delaware corporation
ORIGINAL ADDRESS OF TENANT: 00 Xxxxxx Xxxxxx
Xxxxxxxxx, XX
TERM: From the Commencement Date to the Termination Date
COMMENCEMENT DATE: As stated in section 3.6
TERMINATION DATE: December 31, 1997
ANNUAL FIXED RENT: 01/1/93-12/31/93 - $20,000
(as applicable) 01/1/94-12/31/94 - $22,500
01/1/95-12/31/95 - $25,000
01/1/96-12/31/96 - $27,500
01/1/97-12/31/97 - $30,000
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MONTHLY PAYMENT: 01/1/93-12/31/93 - $1,667.67
(as applicable) 01/1/94-12/31/94 - $1,875.00
01/1/95-12/31/95 - $2,083.33
01/1/96-12/31/96 - $2,291.67
01/1/97-12/31/97 - $2,500.00
LANDLORD'S RENOVATIONS, ALTERATIONS, IMPROVEMENTS: None other than as
set forth in Sections 3.6 and 4.1
TENANT'S PERCENTAGE OF OPERATING EXPENSES
& REAL ESTATE TAXES: 100%
TAX BASE YEAR: None
PERMITTED USES: Office use, laboratory use and ancillary animal space
to the extent permitted under applicable law,
and no other use
SECURITY DEPOSIT: As stated in Section 1
BROKER: Murphy, Lynch, Xxxxx & Partners
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