09050601-JRW-E
EXHIBIT 10.4
XXXXXXXX PROPERTIES, LLC
STANDARD FORM
COMMERCIAL LEASE
In consideration of the covenants herein, XXXXXXXX PROPERTIES, LLC
("LESSOR") hereby leases to BIOVEX, INC. (a DE corp.), 000 Xxxxx Xxxxxx,
Xxxxxxxxx, XX 00000 ("LESSEE") the following premises, approximately 30,983
square feet at 00-X Xxxxxxxx Xxx, Xxxxxx, XX 00000, as more particularly shown
on the space plan attached hereto as Exhibit A ("the leased premises"), for a
term of six (6) years and six (6) months commencing at noon on December 1, 2005
and ending at noon on May 30, 2012, unless sooner terminated as herein provided.
LESSOR and LESSEE now covenant and agree that the following terms and conditions
shall govern this lease.
1. RENT. LESSEE shall pay to LESSOR base rent as follows:
- For the period from December 1, 2005 through and including May 31,
2006: no base rent shall be due;
- For the period from June 1, 2006 through and including May 31, 2008:
$551,497 per year; $45,958.12 per month ($17.80/sf) (LESSOR hereby acknowledges
that simultaneously with the execution of this lease, LESSEE has paid to LESSOR
nine (9) months base rent for the period from June 1, 2006 through February 28,
2007, such that no base rent payments shall be due until March 1, 2007);
- For the period from June 1, 2008 through and including May 31, 2010:
$711,060 per year; $59,254.99 per month ($22.95/sf); and
- For the period from June 1, 2010 through and including May 30, 2012:
$773,026 per year; $64,418.82 per month ($24.95/sf);
in U.S. dollars, drawn on a U.S. bank, payable in advance in monthly
installments, on the first day of each calendar month, without offset or
deduction except as expressly permitted herein. Rent payable for a partial month
during the term shall be prorated. All payments shall be made to LESSOR at 000
Xxxx Xxxxxxxx Xxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, or at such other place as is
designated in writing by LESSOR. If the "Cost of Living" has increased or
decreased, as shown by the Consumer Price Index (Boston, Massachusetts, all
items, all urban consumers), U.S. Bureau of Labor Statistics, then base rent due
during each calendar year of this lease and any extensions thereof shall be
annually adjusted in proportion to any increase or decrease in the Index. All
such adjustments shall take place with the rent due each January 1. The first
installment of any such rent adjustment shall be due on March 1, 2007. The base
rent amount to be used for the calculation of each such adjustment shall be as
follows:
- For the adjustments due for the calendar years commencing on January
1, 2007 and January 1, 2008, the base rent used shall be $551,497 per year;
- For the adjustments due for the calendar years commencing on January
1, 2009 and January 1, 2010, the base rent used shall be $711,060 per year; and
- For the adjustments due for the calendar years commencing on January
1, 2011 and January 1, 2012, the base rent used shall be $773,026 per year.
__________ LESSOR
__________ LESSEE
The base month from which to determine the amount of each increase or decrease
in the Index shall be November 2005, which figure shall be compared with the
figure for November 2006, and each November thereafter to determine the increase
(if any) in the base rent to be paid during the following calendar year.
__________ LESSOR
__________ LESSEE
If the Consumer Price Index referenced above is discontinued as a measure of
"Cost of Living" changes, LESSOR shall substitute a comparable index then in
general use.
2. SECURITY DEPOSIT. LESSEE shall pay to LESSOR a security deposit of One
Hundred Seventy-Seven Thousand Seven Hundred Sixty-Five and 00/100 ($177,765)
U.S. dollars, drawn on a U.S. bank, upon LESSEE's execution of this lease, which
shall be held as security for LESSEE's performance hereunder and refunded to
LESSEE without interest not later than thirty (30) days after the end of this
lease, subject to LESSEE's satisfactory compliance with the conditions hereof.
LESSEE may not apply the security deposit to any payment due under the lease. In
the event of any default or breach of this lease by LESSEE, however, LESSOR may
elect to apply the security deposit first to any unamortized improvements
completed for LESSEE's occupancy, then to offset any outstanding invoice or
other payment due to LESSOR, and then to outstanding rent. If all or any portion
of the security deposit is applied to cure a default or breach during the term
of this lease, LESSEE shall restore said deposit forthwith. LESSEE's failure to
remit the full security deposit or any portion thereof or to restore said
deposit when due shall constitute a substantial lease default. If LESSEE fails
to pay the security deposit and first month's rent on a timely basis, LESSOR may
retake possession and relet the leased premises for LESSEE's account, or declare
this lease null and void for failure of consideration.
3. USE OF PREMISES. LESSEE shall use the leased premises only for executive
and administrative offices, pharmaceutical manufacturing, laboratory, related
storage and research and development.
4. REAL ESTATE TAX INCREASES. LESSEE shall pay to LESSOR as additional rent
a proportionate share (based on square footage leased by LESSEE as compared with
the total leaseable square footage of the building of which the leased premises
are a part (hereinafter called the building)) of any increase in the real estate
taxes levied against the land and building, whether such increase is caused by
an increase in the tax rate or the assessment on the property, or a change in
the method of determining real estate taxes. Any additional rent shall be
prorated should the lease terminate before the end of any tax year. The base
from which to determine the amount of any increase in taxes shall be the rate
and the assessment in effect as of July 1, 2006, net of abatements, if any.
LESSEE's proportionate share is 51.88%, which is the rentable square footage of
the leased premises of approximately 30,983 square feet divided by the rentable
square footage of the building of approximately 59,718 square feet.
5. UTILITIES. LESSOR shall provide equipment per LESSOR's building
standards to heat the leased premises in season and to cool all office areas
between May 1 and November 1. LESSEE shall pay all charges for utilities used on
the leased premises, including electricity, gas, oil, water and sewer, and shall
use whichever utility service provider is selected by LESSEE, in its reasonable
judgment. LESSEE shall pay the utility provider directly for all such utility
charges as determined by separate meters serving the leased premises. The hours
of operation for the HVAC system will be controlled exclusively by LESSEE. All
HVAC system charges will be billed directly by the utility provider, and LESSOR
shall not be entitled to charge any special fees or additional charges for the
"after hours" HVAC operation. If water charges are billed to the entire
building, LESSEE shall pay LESSOR for LESSEE's water usage based on a submeter
of LESSEE's actual water usage (without any additional charge or markup paid to
LESSOR), and LESSOR shall pay the water service provider for water charges to
the entire building.
6. COMPLIANCE WITH LAWS. LESSEE agrees not to use the leased premises in
any way that may be unlawful, improper, noisy, offensive or contrary to any
applicable statute, regulation, ordinance or bylaw. LESSEE shall keep all
employees working in the leased premises covered by Worker's Compensation
Insurance and shall obtain any licenses and permits necessary for LESSEE's use
and occupancy. LESSEE shall be responsible for causing the leased premises
following delivery of possession by LESSOR and any alterations by LESSEE allowed
hereunder to be in full compliance with any applicable statute, regulation,
ordinance or bylaw. Notwithstanding the foregoing or any other provision of this
lease, however, LESSEE shall not be responsible for the compliance with any such
laws, regulations or the like requiring (a) structural repairs or modifications,
(b) repairs or modifications to the standard utility or building service
equipment, or (c) installation of new building service equipment, such
__________ LESSOR
__________ LESSEE
as fire detection or suppression equipment, unless such repairs, modifications
or installation shall (i) be due to LESSEE's particular manner of use of the
leased premises, (ii) be due to the negligence or willful misconduct of LESSEE
or any agent, employee or contractor of LESSEE, or (iii) arise out of any
modifications by LESSEE.
7. FIRE, CASUALTY, EMINENT DOMAIN. Should a substantial portion of the
leased premises, or of the property of which they are a part, be substantially
damaged by fire or other casualty, or be taken by eminent domain, LESSOR may
elect to terminate this lease. When such fire, casualty or taking renders the
leased premises substantially unsuitable for their intended use, a proportionate
abatement of rent shall be made, and LESSEE may elect to terminate this lease
if: (a) LESSOR fails to give written notice within 30 days after said fire,
casualty or taking of its intention to restore the leased premises; or (b)
LESSOR fails to restore the leased premises to a condition substantially
suitable for their intended use within 90 days after said fire, casualty or
taking; or (c) if said fire, casualty or taking occurs during the last twelve
(12) months of the lease term and LESSEE gives notice of termination within 60
days after said fire, casualty or taking during said last twelve (12) months.
LESSEE's right to terminate shall be exercised by written notice to LESSOR, and
said termination shall be effective as of the date of delivery of such notice.
LESSOR reserves all rights for damages or injury to the leased premises for any
taking by eminent domain, except for damage to LESSEE's property or equipment
and LESSEE's relocation and moving expenses.
8. FIRE INSURANCE. LESSEE shall not permit any use of the leased premises
which will adversely affect or make voidable any insurance on the property of
which the leased premises are a part, or on the contents of said property, or
which shall be contrary to any law, regulation or recommendation made by the
Insurance Services Office (or successor organization), state fire prevention
agency, local fire department, LESSOR's insurer or any similar entity. LESSEE
shall on demand reimburse LESSOR and all other tenants all extra insurance
premiums caused by LESSEE's use of the leased premises for any use other than as
provided in Section 3 above. LESSEE shall not vacate the leased premises or
permit same to be unoccupied other than during LESSEE's customary non-business
days or hours unless LESSEE continues to pay rent and otherwise comply with its
obligations under this lease, or cause or allow the utilities serving the leased
premises to be terminated. LESSOR shall maintain in full force throughout the
term, a policy of fire and casualty insurance upon the building insuring against
all risks of physical loss or damage under an All Risk coverage endorsement in a
commercially reasonable amount as well as insurance against casualty to
building-standard mechanical equipment serving the office space, as customarily
insured against. LESSOR shall supply to LESSEE from time to time upon reasonable
request of LESSEE certificates of all such insurance issued by or on behalf of
the insurers named therein by a duly authorized agent. All policies of insurance
maintained by LESSOR shall contain the same waiver of subrogation provisions for
the benefit of LESSEE as LESSEE is required to obtain in its insurance policies
for the benefit of LESSOR.
9. SIGNS. LESSEE, at LESSEE's expense, shall erect promptly upon
commencement of this lease, and then maintain signage for the leased premises in
accordance with building standards for style, size, wording, design, location,
etc. now or hereafter made by LESSOR. LESSEE shall obtain LESSOR's prior written
consent before erecting any sign, and LESSOR may, at LESSEE's expense, remove
and dispose of any sign not approved, erected, maintained or displayed in
conformance with this lease. Whenever LESSOR's consent is required under this
Section 9, LESSOR shall not unreasonably withhold or delay the granting of such
consent. LESSOR agrees that LESSEE may install a sign on the exterior of the
building and a monument sign at the building entrance provided the same are in
compliance with applicable government regulations, LESSOR's design standards and
Paragraph N of the Rider to Lease.
10. MAINTENANCE OF PREMISES. Except as otherwise provided below, LESSOR
will be responsible for the structural maintenance of the leased premises and
for maintenance, repair and replacement, if necessary, of the roof, landscaping,
sprinklers, doors, locks, plumbing and electrical wiring, foundations, walls,
building-standard HVAC system serving the office portion of the leased premises,
and all of LESSOR's other standard building systems, including all pipes, vents,
conduits, connections and other components thereof, but specifically excluding
damage caused by the willful or
__________ LESSOR
__________ LESSEE
negligent acts of LESSEE, its agents, employees or invitees, and chemical,
corrosion or water damage from any source except damage caused by willful or
negligent acts of LESSOR, its agents or employees. If despite LESSEE's diligent
efforts to cause LESSOR to undertake any of said repairs, replacements or
maintenance following notice from LESSEE, LESSOR shall fail to undertake such
repairs, replacements or maintenance and such failure by LESSOR prevents LESSEE
from using the leased premises for its intended purposes for more than thirty
(30) consecutive days (or such longer period provided LESSOR shall diligently
undertake to make such repairs) following written notice of such required
repair, replacement or maintenance from LESSEE (although such notice shall not
be required if there is an emergency), LESSEE may make the required repair,
replacement or maintenance and LESSOR shall pay the reasonable out-of-pocket
costs thereof to LESSEE within thirty (30) days after receipt of a just invoice
therefor. LESSEE agrees to maintain at its expense all other aspects of the
leased premises in the same condition as they are at the commencement of the
lease term or as they may be put in with LESSOR's written consent during the
term of this lease, normal wear and tear and damage from casualty and
condemnation only excepted, and whenever necessary, to replace light bulbs and
glass, acknowledging that the leased premises will be in good order and the
light bulbs and glass whole upon delivery by LESSOR. LESSEE shall properly
control and vent all chemicals, radioactive materials, smoke, odors and other
materials that may be harmful, and shall not cause the area surrounding the
leased premises or any other common area to be in anything other than a neat and
clean condition, depositing all waste in appropriate receptacles. LESSEE, at
LESSEE's expense, shall be responsible for janitorial services within the leased
premises. LESSOR, at LESSOR's expense, shall provide or perform all common area
janitorial services, including cleaning and maintenance on a regular periodic
basis. LESSEE shall be solely responsible for any damage to plumbing equipment,
sanitary lines or any other portion of the building which results from the
discharge or use of any substance by LESSEE. LESSEE shall not permit the leased
premises to be overloaded, damaged, stripped or defaced, nor suffer any waste,
and will not keep animals within the leased premises. If the leased premises
include any wooden mezzanine-type space, the floor capacity of such space is
suitable only for office use, light storage or assembly work. Unless heat is
provided at LESSOR's expense, LESSEE shall maintain sufficient heat to prevent
freezing of pipes or other damage in the leased premises. Notwithstanding the
foregoing, any increase in heating, ventilating, air conditioning, plumbing or
electrical equipment or capacity, and any installation or maintenance of any
"non-building standard" leasehold improvements or equipment which is associated
with some specific aspect of LESSEE's use, whether installed by LESSOR, LESSEE
or a prior occupant, shall be LESSEE's sole responsibility, at LESSEE's expense,
and except for any increase in equipment, capacity or installation which is a
part of Phase 1 or Phase 2 of the Lessee Work (as such terms are defined in
Paragraph H of the Rider to Lease), subject to LESSOR's prior written consent,
which consent shall not be unreasonably withheld or delayed. All maintenance
provided by LESSOR shall be during LESSOR's normal business hours.
11. ASSIGNMENT OR SUBLEASE. Provided LESSEE is not in default of any terms
or conditions hereof, LESSEE may assign this lease or sublet or allow another
entity or individual to occupy the whole or any part of the leased premises, but
only with LESSOR's prior written consent in each and every instance, which
consent shall not be unreasonably withheld or delayed. Notwithstanding anything
to the contrary contained in this lease, LESSEE may, without LESSOR's prior
written consent, sublet all or any portion of the leased premises or assign
LESSEE's interest in this lease to: (a) a subsidiary, affiliate, parent or other
entity which controls, is controlled by or is under common control with LESSEE;
(b) a successor entity to LESSEE resulting from merger, consolidation,
non-bankruptcy reorganization or government action; or (c) a purchaser of all or
substantially all of LESSEE's stock or assets. LESSEE shall serve LESSOR with
prior written notice of any such sublease or assignment. In no case may LESSEE
assign this lease or sublet the leased premises to any other current or
prospective tenant of LESSOR, or any affiliate of such current or prospective
tenant. Notwithstanding LESSOR's consent to any assignment or sublease, LESSEE
and GUARANTOR shall remain liable to LESSOR for the payment of all rent and for
the full performance of all covenants and conditions of this lease.
12. ALTERATIONS. Except as otherwise permitted in Paragraph H of the Rider
to Lease, LESSEE shall not make structural alterations, additions or
improvements of any kind to the leased premises. LESSEE may make cosmetic
alterations or improvements (i.e., painting, carpeting, flooring, etc.)
regardless of cost, and any other non-structural alterations, additions or
improvements having a
__________ LESSOR
__________ LESSEE
cost, in each instance, of $50,000 or less, without LESSOR's prior consent.
LESSEE may make non-structural alterations, additions or improvements having a
cost, in each instance, in excess of $50,000 with LESSOR's prior written
consent, which consent shall not be unreasonably withheld or delayed.
LESSEE agrees that all work to be performed by LESSEE shall be completed in
a good and workerlike manner. All such allowed alterations, additions and
improvements shall be at LESSEE's expense and shall conform with LESSOR's
building standards and construction specifications. If LESSOR or its agent
provides any services or maintenance for LESSEE in connection with such
alterations, additions and improvements or otherwise under this lease, LESSEE
will promptly pay any just invoice. LESSEE shall not permit any mechanics'
liens, or similar liens, to remain upon the leased premises in connection with
any work performed or claimed to have been performed at the direction of LESSEE
and shall cause any such lien to be released or removed forthwith without cost
to LESSOR. Any structural alterations, additions and improvements shall become
part of the leased premises and the property of LESSOR. Removal of any other
alterations, additions or improvements shall be governed by Section 27 below.
LESSOR shall have the right at any time to make additions to the building,
change the arrangement of parking areas, stairs or walkways, or otherwise alter
common areas or the exterior of the building, provided such changes do not
materially interfere with LESSEE's use of the leased premises.
13. LESSOR'S ACCESS. LESSOR and its agents and designees may at any
reasonable time upon reasonable notice except in the case of any emergency enter
to view the leased premises; to show the leased premises to others; to make
repairs and alterations as LESSOR or its designee should elect to do for the
leased premises, the common areas, or any other portions of the building; and
without creating any obligation or liability for LESSOR, but at LESSEE's
expense, to make repairs which LESSEE is required but has failed to do.
14. SNOW REMOVAL. The plowing of snow from all roadways and unobstructed
parking areas shall be at the sole expense of LESSOR. The control of snow and
ice on all walkways, steps and loading areas serving the leased premises and all
other areas not readily accessible to plows shall be the sole responsibility of
LESSOR. Notwithstanding the foregoing, however, LESSEE shall hold LESSOR and
OWNER harmless from any and all claims by LESSEE's employees, agents, callers or
invitees for damage or personal injury resulting in any way from snow or ice on
any area serving the leased premises, except for damage or injury resulting from
the willful or negligent acts of LESSOR, its agents, or employees.
15. ACCESS AND PARKING. Unless otherwise provided herein, LESSEE shall have
the right without additional charge to use parking facilities provided for the
leased premises in common with others entitled to the use thereof. LESSEE shall
not obstruct any portion of the building or its walkways and approaches. No
unattended parking will be permitted between 7:00 PM and 7:00 AM without
LESSOR's prior written approval, and from November 15 through April 15 annually,
such parking shall be permitted only in those areas designated for assigned
overnight parking. Unregistered or disabled vehicles, or storage trailers of any
type, may not be parked at any time. LESSOR may tow, at LESSEE's sole risk and
expense, any misparked vehicle belonging to LESSEE or LESSEE's employees,
agents, callers or invitees, at any time. LESSOR shall not provide, and shall
not be responsible for providing, any security services. At all times during the
term of this lease, LESSOR shall provide LESSEE for use by LESSEE, its employees
and invitees in common with others, at no additional charge, a minimum of at
least two and one-half (2 1/2) parking spaces per 1,000 rentable square feet of
leased premises in one of LESSOR's parking areas near the building, as shown on
the parking plan attached as Exhibit B.
16. LIABILITY. LESSEE shall be solely responsible as between LESSOR and
LESSEE for deaths or personal injuries to all persons and damage to any
property, including damage by fire or other casualty, occurring in or on the
leased premises (including any common areas as described below) and arising out
of the use, control, condition or occupancy of the leased premises by LESSEE,
except for death, personal injuries or property damage directly resulting from
the sole negligence of LESSOR. All common areas, including but not limited to
any parking areas, stairs, corridors, roofs, walkways and elevators (herein
collectively called the common areas) shall be considered a part of the leased
premises
__________ LESSOR
__________ LESSEE
for liability and insurance purposes when they are used by LESSEE or LESSEE's
employees, agents, callers or invitees.
17. INSURANCE. LESSEE shall secure and carry at its own expense a
commercial general liability policy insuring LESSEE, LESSOR and OWNER against
any claims based on bodily injury (including death) or property damage arising
out of the condition of the leased premises (including any common areas as
described above) or their use by LESSEE, including damage by fire or other
casualty caused by LESSEE or its agents, employees or invitees, such policy to
insure LESSEE, LESSOR and OWNER against any claim up to $1,000,000 for each
occurrence involving bodily injury (including death), and $1,000,000 for each
occurrence involving damage to property. This insurance shall be primary to and
not contributory with any insurance carried by LESSOR, whose insurance shall be
considered excess. LESSOR and OWNER shall be included in each such policy as
additional insureds using ISO Form CG 20 26 11 85 or some other form approved by
LESSOR, and each such policy shall be written by or with a company or companies
satisfactory to LESSOR. Prior to occupancy, LESSEE shall deliver to LESSOR
certificates and any applicable riders or endorsements showing that such
insurance is in force, and thereafter will provide renewal certificates at least
15 days prior to the expiration of any such policies. All such insurance
certificates shall provide that such policies shall not be cancelled without at
least 10 days' prior written notice to each insured. If LESSEE fails to provide
or maintain such insurance at any time during the term of this lease, LESSOR may
elect to contract for such insurance, and LESSEE shall pay LESSOR any costs that
LESSEE would incur for such insurance in complying with this section, plus
LESSOR's administrative expenses. LESSOR shall secure and carry at its own
expense a commercial general liability policy insuring LESSOR and OWNER against
any claims based on bodily injury (including death) or property damage arising
out of the condition of the building, common areas or property or their use by
any tenant or occupant, such policy to insure LESSOR and OWNER against any claim
up to $1,000,000 for each occurrence involving bodily injury (including death)
and $1,000,000 for each occurrence involving damage to property. As stated
above, such insurance shall be considered "excess" to LESSEE's insurance
coverage, which shall be primary.
18. BROKERAGE. LESSEE warrants and represents to LESSOR that LESSEE has
dealt with no broker or third person with respect to this lease except for
Xxxxxxx Xxxxx of Xxxxxxxx Xxxx Company to whom LESSOR shall pay a commission
(estimated at $127,084) in accordance with a separate agreement, and LESSEE
agrees to indemnify LESSOR against any brokerage claims arising out of this
lease. LESSOR warrants and represents to LESSEE that LESSOR has employed no
exclusive broker or agent in connection with this lease. If either party
introduces a broker or third person on its behalf for any extension, renewal or
expansion of this lease, any fees or commissions shall be the sole
responsibility of the party engaging such broker or third person.
19. SUBORDINATION. This lease shall be subject and subordinate to any and
all mortgages and other instruments in the nature of a mortgage, now or at any
time hereafter, and LESSEE shall, when requested, promptly execute and deliver
such written instruments as shall be necessary to show the subordination of this
lease to said mortgages or other such instruments in the nature of a mortgage,
provided that the holder of such mortgage shall agree in writing to the
non-disturbance conditions set forth in Paragraph T of the Rider to Lease.
20. DEFAULT AND ACCELERATION OF RENT. In the event that (a) any assignment
for the benefit of creditors, trust mortgage, receivership or other insolvency
proceeding shall be made or instituted with respect to LESSEE or LESSEE's
property or (b) LESSEE shall default in the observance or performance of any of
LESSEE's covenants, agreements or obligations hereunder, and such default shall
not be corrected within 30 days after written notice thereof, or, in the event
such default cannot be cured within said 30-day period, LESSEE shall not have
commenced to cure and be diligently proceeding to cure, then LESSOR shall have
the right thereafter, while such default continues and without demand or further
notice, to re-enter and take possession of the leased premises, to declare the
term of this lease ended, and/or to remove LESSEE's effects, without being
guilty of trespass or conversion, and without prejudice to any remedies which
might be otherwise used for arrears of rent or other default or breach of the
lease. If LESSEE defaults in the payment of the security deposit, rent, taxes or
substantial invoice from LESSOR or LESSOR's agent, and such default continues
for 10 days after written notice thereof,
__________ LESSOR
__________ LESSEE
LESSEE shall pay LESSOR on demand the amount of all rent, taxes and other
amounts due under this lease which LESSOR may suffer as damages as a result of
LESSEE's default, whether by LESSOR's inability to relet the leased premises on
satisfactory terms or otherwise, including any deficiency that may arise from
reletting or the failure to relet the leased premises (after deducting all Costs
of Reletting from any rent received on reletting). "Costs of Reletting" shall
include all costs and expenses incurred by LESSOR in reletting or attempting to
relet the leased premises, including, without limitation, reasonable legal fees,
brokerage commissions, the cost of alterations and the value of other
concessions or allowances granted to a new tenant. No actions taken by LESSOR
under this section shall terminate LESSEE's obligation to pay rent under this
lease. Any sums received by LESSOR from or on behalf of LESSEE at any time shall
be applied first to any unamortized improvements completed for LESSEE's
occupancy, then to offset any unpaid invoice or other payment due to LESSOR and
then to unpaid rent. LESSEE shall pay any invoice within 10 days after receipt.
If any rent and/or other payment is not received by LESSOR when due, then LESSEE
shall pay LESSOR interest at the rate of eighteen (18%) percent per annum on any
past due payment. If, as a result of a default by LESSEE hereunder, LESSOR
re-enters and takes possession of the leased premises or LESSOR otherwise
terminates this lease, LESSOR shall use commercially reasonable efforts to relet
the leased premises so as to minimize LESSOR's damages.
21. NOTICE. Any notice from LESSOR to LESSEE relating to the leased
premises or this lease shall be deemed duly served when left at the leased
premises, or served by constable, or sent to the leased premises or to the last
address designated by notice in accordance with this section, by certified or
registered mail, return receipt requested, postage prepaid, or by recognized
courier service with a receipt therefor, addressed to LESSEE. Any notice from
LESSEE to LESSOR relating to the leased premises or this lease shall be deemed
duly served when served by constable, or delivered to LESSOR by certified or
registered mail, return receipt requested, postage prepaid, or by recognized
courier service with a receipt therefor, addressed to LESSOR at 000 Xxxx
Xxxxxxxx Xxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 or at LESSOR's last designated
address. No oral notice or representation shall have any force or effect. Time
is of the essence in the service of any notice.
22. OCCUPANCY. If LESSEE takes possession of the leased premises prior to
the start of the lease term, LESSEE will perform and observe all of its
covenants under this lease from the date upon which it takes possession. If
LESSEE continues to occupy, control or encumber all or any part of the leased
premises after the termination of this lease without the written permission of
LESSOR, LESSEE shall be liable to LESSOR for any and all loss, damages or
expenses incurred by LESSOR, subject during the first ninety (90) days (only) of
any holdover to the limitations in Section 28(k) below, and all terms of this
lease shall continue to apply, except that use and occupancy payments shall be
due at a per diem rate which shall be: (a) for the first thirty (30) days after
the date of termination of this lease, at the rate of one and one-half (1 1/2),
and (b) thereafter, at the rate of two (2), in each case, times the greater of
the per diem rate due under this lease immediately prior to termination or
LESSOR's then current published rent on a per diem basis for the leased
premises, it being understood that such extended occupancy is a tenancy at
sufferance, solely for the benefit and convenience of LESSEE and of greater
rental value. LESSOR's acceptance of any payments from LESSEE during such
extended occupancy shall not alter LESSEE's status as a tenant at sufferance.
LESSOR may require LESSEE to relocate to another similar facility at any time
during the lease term upon prior written notice to LESSEE and on terms
comparable to these herein, and LESSEE shall be liable to LESSOR for any loss,
damages or expenses incurred by LESSOR if LESSEE fails to relocate as required
herein.
23. FIRE PREVENTION. LESSOR shall be obligated to deliver the leased
premises with emergency lighting and exit signs. Upon completion of Phase 1 of
the Lessee Work (as defined in Paragraph H of the Rider to Lease), LESSEE agrees
to use every reasonable precaution against fire, to provide and maintain
approved, labeled fire extinguishers, emergency lighting equipment and exit
signs, and to complete any other modifications within the leased premises as
required or recommended by the Insurance Services Office (or successor
organization), OSHA, the local fire department, LESSOR's insurer or any similar
entity.
__________ LESSOR
__________ LESSEE
24. OUTSIDE AREA. Anything held or stored by LESSEE in any common area
without LESSOR's prior written consent shall be deemed abandoned and may be
removed by LESSOR at LESSEE's expense without notice. LESSEE shall maintain a
building standard size dumpster in a location approved by LESSOR, which dumpster
shall be provided and serviced at LESSEE's expense by whichever disposal firm
LESSOR may designate. Alternatively, if a shared dumpster or compactor is
provided by LESSOR, LESSEE shall pay the disposal firm or LESSOR, as applicable,
LESSEE's proportionate share of any charges associated therewith.
25. ENVIRONMENT. LESSEE will use the leased premises so as not to interfere
in any way with the use and enjoyment of other portions of the same or
neighboring buildings by others by reason of odors, smoke, exhaust, smells,
vibrations, noise, pets, accumulation of garbage or trash, vermin or other
pests, or otherwise, and will at its expense employ a professional pest control
service if determined necessary by LESSOR. LESSEE agrees to maintain effective
devices for preventing damage to plumbing and heating equipment from deionized
water, chemicals or hazardous materials which may be present at the leased
premises. No hazardous materials or wastes shall be used, stored, disposed of,
or allowed to remain at the leased premises at any time without LESSOR's
specific approval, and LESSEE shall be solely responsible for, and shall
indemnify and hold harmless LESSOR and OWNER from, any and all corrosion or
other damage in any way associated with the use, storage and/or disposal of same
by LESSEE. Notwithstanding the foregoing to the contrary, LESSEE has informed
LESSOR that LESSEE will use the leased premises to perform pharmaceutical
manufacturing processes, which include the use of certain chemicals and viruses,
all of which, LESSEE represents, have been disclosed to LESSOR and which are
attached hereto as Exhibit X. XXXXXX acknowledges receipt of LESSEE's disclosure
regarding LESSEE's manufacturing process, and LESSOR consents to the conduct by
LESSEE of the foregoing pharmaceutical manufacturing process, provided that
LESSEE shall conduct said manufacturing process in full compliance with any
applicable statutes, regulations and ordinances and this lease.
26. RESPONSIBILITY. Neither LESSOR nor OWNER shall be liable to anyone for,
nor shall LESSEE's obligations under this lease be reduced because of, loss or
damage caused in any way by the use, leakage, seepage, flooding or escape of
water or sewage in any form or from any source, by the interruption or cessation
of any service rendered customarily to the leased premises or building or agreed
to by the terms of this lease, by any accident, the making of repairs,
alterations or improvements, labor difficulties, weather conditions, mechanical
breakdowns, trouble or scarcity in obtaining fuel, electricity, service or
supplies from the sources from which they are usually obtained, by any change in
any utility or service provider, or by any cause beyond LESSOR's immediate
control. Notwithstanding the foregoing to the contrary, an "Abatement Event"
shall be defined as an event or circumstance that reasonably prevents LESSEE
from using the leased premises or any portion thereof as a result of any failure
by LESSOR to provide services or access to the leased premises that is under
LESSOR's control and is required under this lease. LESSEE shall give LESSOR
written notice (the "Abatement Notice") of any such Abatement Event. If such
Abatement Event continues beyond the "Eligibility Period" (as that term is
defined below), then, to the extent that compensation is unavailable under
LESSEE's business interruption or other insurance coverage, the base rent and
LESSEE's other monetary obligations to LESSOR shall be abated entirely or
reduced, as the case may be, after expiration of the Eligibility Period for such
time that LESSEE continues to be so prevented from using, and does not use, the
leased premises or a portion thereof, in the proportion that the rentable area
of the portion of the leased premises that LESSEE is prevented from using, and
does not use, bears to the total rentable area of the leased premises. The term
"Eligibility Period" shall mean a period of ten (10) consecutive business days
after LESSOR's receipt of any Abatement Notice. In addition, if an Abatement
Event that materially and adversely affects LESSEE's ability to use the leased
premises so as to constitute a constructive eviction continues for ninety (90)
consecutive days after any Abatement Notice, LESSEE may terminate this lease by
written notice to LESSOR at any time prior to the date such Abatement Event is
substantially cured. This paragraph shall not apply, however, in the case such
Abatement Event is caused by LESSEE or its employees, agents or contractors. The
provisions of this Section 26 shall not apply to any Abatement Event resulting
or arising from fire or other casualty, which shall be governed by the
provisions of Section 7.
__________ LESSOR
__________ LESSEE
27. SURRENDER. On or before the termination of this lease, LESSEE shall
remove all of LESSEE's goods and effects from the leased premises, and shall
deliver to LESSOR actual and exclusive possession of the leased premises and all
keys and locks thereto. At any time during the term of this lease, LESSEE may
remove (a) any equipment, machinery, furniture or other personal property
supplied or installed by LESSEE, and (b) any fixtures or other additions or
improvements installed or made by LESSEE which are listed in the mutually agreed
upon Exhibit C attached hereto, provided LESSEE is not then in arrears of any
rent or invoice payments or otherwise in default of this lease, repairs any and
all damage resulting from such removal, and restores the leased premises to its
condition prior to the installation of said items, reasonable wear and tear
excepted. Only if so designated on Exhibit C, any such removal, repair and
restoration shall include, at LESSOR's option, the removal of any system, if so
designated for removal on Exhibit C, serving the equipment or machinery
installed by LESSEE, including without limitation, any piping, conduits, chases,
ductwork, rooftop equipment, wiring and/or other components serving or dedicated
to said equipment or machinery. LESSEE must complete all such removal, repair,
restoration and other work prior to the termination date of this lease, and the
leased premises shall not be considered surrendered to LESSOR until LESSEE has
fully complied with all the provisions of this Section 27. Notwithstanding the
foregoing, prior to termination of this lease, LESSEE shall remove or tag for
future use any and all wiring and cabling installed and/or used by LESSEE.
LESSEE shall deliver the leased premises fully sanitized from any chemicals or
other contaminants, broom clean, and in at least the same condition as they were
at the commencement of the lease or any prior lease between the parties for the
leased premises, or as they were modified during said term with LESSOR's written
consent, reasonable wear and tear and damage from casualty or condemnation only
excepted, and LESSEE shall be deemed to be encumbering the leased premises until
it delivers the leased premises to LESSOR in the condition required under this
lease. Any of LESSEE's property that remains in the leased premises upon
termination of the lease shall be deemed abandoned and shall be disposed of as
LESSOR sees fit, with no liability to LESSEE for loss or damage thereto, and at
the sole risk of LESSEE. LESSOR may remove and store any such property at
LESSEE's expense; retain same under LESSOR's control; sell same at public or
private sale (without notice) and apply the net proceeds of such sale to the
payment of any sum due hereunder; or destroy same. In no case shall the leased
premises be deemed surrendered to LESSOR until the termination date provided
herein or such other date as may be specified in a written agreement between the
parties, notwithstanding the delivery of any keys to LESSOR.
28. GENERAL. (a) The invalidity or unenforceability of any clause or
provision of this lease shall not affect or render invalid or unenforceable any
other clause or provision hereof. (b) The obligations of this lease shall run
with the land, and this lease shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns, except that
LESSOR and OWNER shall be liable for obligations occurring only while LESSOR or
owner of the leased premises. (c) Any action or proceeding arising out of the
subject matter of this lease shall be brought by LESSEE within two years after
the cause of action has occurred and only in a court within the commonwealth of
Massachusetts. (d) If LESSOR or OWNER is a trust, corporation, or other limited
liability entity, the obligations of LESSOR shall be binding upon the trust,
corporation, or other entity, but not upon any trustee, officer, director,
shareholder, member, limited partner or beneficiary individually. (e) If LESSOR
is not the owner (OWNER) of the leased premises, LESSOR represents that OWNER
has agreed to be bound by the terms of this lease unless LESSEE is in default
hereof. (f) This lease is made and delivered in the commonwealth of
Massachusetts, and shall be interpreted, construed, and enforced in accordance
with the laws thereof. (g) This lease is the result of negotiations between
parties of equal bargaining strength, and when executed by both parties shall
constitute the entire agreement between the parties, superseding all prior oral
and written agreements, representations, statements and negotiations relating in
any way to the subject matter herein. This lease may not be extended or amended
except by written agreement signed by both parties, or as otherwise provided
herein, and no other subsequent oral or written representation shall have any
effect hereon. (h) Notwithstanding any other statements herein, LESSOR makes no
warranty, express or implied, concerning the suitability of the leased premises
for LESSEE's intended use. (i) Neither the submission of this lease form or any
amendment hereof, nor the acceptance of the security deposit and/or rent shall
constitute a reservation of or option for the leased premises, or an offer to
lease, it being expressly understood and agreed that neither this lease nor any
amendment shall bind either party in any manner whatsoever unless and until it
has been executed by
__________ LESSOR
__________ LESSEE
both parties. (j) LESSEE shall not be entitled to exercise any option in this
lease, the attached Rider to Lease or any subsequent amendment or extension, or
receive LESSOR's consent as provided for herein, if LESSEE is at that time in
default of any terms or conditions hereof. (k) Except as otherwise provided in
Section 22 herein, neither LESSOR, nor OWNER, nor LESSEE shall be liable for any
special, incidental, indirect or consequential damages, including but not
limited to lost profits or loss of business, arising out of or in any manner
connected with performance or nonperformance under this lease, even if any party
has knowledge of the possibility of such damages. (l) The headings in this lease
are for convenience only and shall not be considered part of the terms hereof.
(m) No restriction, condition or other endorsement by LESSEE on any check, nor
LESSOR's deposit of any full or partial payment, shall bind LESSOR in any way or
limit LESSOR's rights under this lease. (n) LESSEE shall pay LESSOR for all
legal fees and expenses (not to exceed $2,500 per consent with respect to legal
fees (only)) incurred by LESSOR in connection with any consent requested by
LESSEE. (o) LESSEE will conform to all rules and regulations now or hereafter
made by LESSOR for parking, for the care, use or alteration of the building, its
facilities and approaches, and for the administration of this lease, and will
not permit any employee or visitor to violate this or any other covenant or
obligation of LESSEE. (p) LESSEE's covenants under this lease shall be
independent of LESSOR's covenants, and LESSOR's failure to perform any of its
covenants under this lease, including a covenant constituting a significant
inducement to LESSEE to enter into this lease, shall not excuse the payment of
rent or any other charges by LESSEE or allow LESSEE to terminate this lease. (q)
LESSOR, LESSEE, OWNER and GUARANTOR hereby waive any and all rights to a jury
trial in any proceeding in any way arising out of the subject matter of this
lease. (r) SEE ATTACHED RIDER TO LEASE FOR ADDITIONAL PROVISIONS.
29. SECURITY AGREEMENT. LESSOR acknowledges that in connection with the
performance of the Lessee Work, LESSEE intends to acquire certain equipment and
machinery (the "Financed Equipment") by means of either a purchase money
financing or equipment leasing arrangement (the "Equipment Financing") with one
or more lenders (each an "Equipment Lender" and collectively, the "Equipment
Lenders"). LESSOR consents to the installation of the Financed Equipment and to
the acquisition thereof by means of any Equipment Financing. The Equipment
Lender and LESSEE shall execute LESSOR's standard lender consent and waiver
form, which is attached as Exhibit D, subject, however, to such modifications as
requested by the Equipment Lender, provided such modifications are commercially
reasonable, consistent with comparable terms in comparable transactions, and
acceptable to LESSOR in its reasonable discretion.
30. WAIVERS, ETC. No consent or waiver, express or implied, by LESSOR to or
of any breach of any covenant, condition or duty of LESSEE shall be construed as
a consent or waiver to or of any other breach of the same or any other covenant,
condition or duty. If LESSEE is several persons, corporations, or other legal
entities, or a partnership, or some combination thereof, LESSEE's obligations
are joint and several. Unless repugnant to the context, "LESSOR" and "LESSEE"
mean the person or persons, natural or corporate, named above as LESSOR and as
LESSEE respectively, and their respective heirs, executors, administrators,
successors and assigns.
IN WITNESS WHEREOF, LESSOR and LESSEE have hereunto set their hands and
common seals, intending to be legally bound hereby this 2nd day of December,
2005.
LESSOR: XXXXXXXX PROPERTIES, LLC LESSEE: BIOVEX, INC.
By: /s/ Xxxxxx Xxxxxx By: /s/ Xxxxxx Xxxxxx-Xxxxxx
---------------------------------- -----------------------------------
Duly authorized Duly authorized
Print name: Xxxxxx Xxxxxx, Print name: Xxxxxx Xxxxxx-Xxxxxx
LIST OF EXHIBITS
Exhibit A Plan of Lease Premises
Exhibit B Parking Plan
Exhibit C Schedule of Removable Fixtures, Additions and Improvements
Exhibit D LESSOR Standard Form of Consent and Waiver
Exhibit E Plans and Specifications for Lessee Work (Phase 1 and Phase 2)
Exhibit F LESSEE's Disclosure Regarding LESSEE's Manufacturing Process
Exhibit G MDFA Leasehold Mortgagee Protection Provisions
__________ LESSOR
__________ LESSEE
XXXXXXXX PROPERTIES, LLC
STANDARD FORM 09050601-JRW-10
RIDER TO LEASE
The following additional provisions are incorporated into and made a part of the
attached lease:
A. CONFLICTS. In the event of any conflict between any provision of this
Rider to Lease and the attached lease, the provisions of this Rider shall
govern.
B. INTENTIONALLY DELETED - DOES NOT APPLY TO LEASED PREMISES.
C. INTENTIONALLY DELETED - DOES NOT APPLY TO LEASED PREMISES.
D. PARKING. See Section 15.
E. REMEDIES. See Section 20.
F. RECORDING AND SECURITY. Although LESSOR may choose at any time to record
activities at the building with unmonitored remote television cameras, LESSEE
acknowledges and agrees that, as provided in Section 15 above, LESSOR is not
thereby or in any other way providing any security service for LESSEE or its
employees, agents, invitees, contractors and representatives, and that LESSOR
has made no representations whatsoever, written or oral, concerning the safety
of the leased premises or the presence, effectiveness or operability of any
security devices or security measures, or the safety or security of LESSEE, its
employees, agents, invitees, callers, contractors and representatives, or
LESSEE's property, against the criminal or wrongful acts of third parties.
Additionally, LESSEE accepts full responsibility for protecting the persons and
property of LESSEE and those of its employees, agents, invitees, callers,
contractors and representatives, and (acknowledging that security devices or
measures may fail or be thwarted by criminals, by other third parties or by
electrical or mechanical malfunction), agrees not to rely on any such devices or
measures, and to protect itself, its property, and its employees, agents,
invitees, callers, contractors and representatives as if such devices or
measures did not exist. LESSOR shall not be permitted to record activities
within the leased premises under any circumstances.
G. * LESSEE agrees to take possession of the leased premises in "as is"
condition. The parties acknowledge and agree that LESSOR has previously repaired
and repainted all drywall partitions, replaced glass and light bulbs as needed
and cleaned the carpet.
H. (1) Promptly after delivery of possession of the leased premises to
LESSEE, LESSEE shall, at its own expense, in accordance with and subject to the
terms and provisions of this lease, perform or cause to be performed Phase 1 of
the work, alterations and improvements necessary or desired by LESSEE to prepare
the leased premises for LESSEE's initial occupancy and at any time thereafter
during the term, LESSEE reserves the right to perform or cause to be performed
Phase 2 of the work, alterations and improvements necessary or desired by LESSEE
to expand the operation of LESSEE's use of the leased premises (Phase 1 and
Phase 2 are referred to collectively as the "Lessee Work"). LESSOR has received
and does hereby approve and consent to all alterations and improvements
(including any structural improvements) set forth in LESSEE's attached plans and
specifications for Phase 1 and Phase 2 of the Lessee Work as previously
submitted to LESSOR. The list of plans and specifications for Phase 1 and Phase
2, as approved by LESSOR, are attached hereto as Exhibit E. LESSEE shall be
entitled to select, without LESSOR's approval, the contractor and/or
construction manager to supervise and perform the Lessee Work. LESSEE shall not
be required to pay to LESSOR any construction management fee or other charge in
connection with the supervision and performance of the Lessee Work; provided,
however, LESSEE shall pay the reasonable charge to LESSOR for LESSOR's
customary, periodic monitoring of the progress of the Lessee Work. In addition,
if LESSOR is requested by LESSEE to perform any work, LESSEE shall pay the
reasonable charge to LESSOR for any such work performed by LESSOR at the leased
premises. All of the Lessee Work shall be constructed and installed in a good
and workmanlike manner and in compliance with all applicable laws, regulations
and orders of governmental authority.
(2) LESSOR agrees to pay to LESSEE an amount not to exceed $930,000
(the "Construction Allowance") toward the cost of Phase 1 of the Lessee Work.
LESSEE shall pay all costs of the Lessee Work in excess of the Construction
Allowance. The Construction Allowance shall be payable on account of (x) the
hard construction costs for the Lessee Work and the materials delivered to the
leased premises in connection with the Lessee Work, (y) the labor costs related
to the Lessee Work, and (z) the "soft costs" relating to the Lessee Work,
including architectural and engineering fees, design consulting fees, moving
expenses, purchase of furniture, equipment and machinery and installation of
telecommunications and data equipment. The costs described in (x) and (y) above
are referred to herein as "Construction Costs" and the total costs described in
(x), (y) and (z) above are referred to herein as "Total Project Costs."
(3) LESSEE represents, to LESSEE's knowledge, that the current
estimated costs for Phase 1 and Phase 2 are approximately as follows:
Phase 1: Total Project Costs $4,000,000
Construction Costs $2,000,000
Phase 2: Total Project Costs $8,000,000
_______________ LESSOR
_______________ LESSEE
09050601-JRW-5
RIDER TO LEASE
(CONTINUED)
Construction Costs $3,000,000
_______________ LESSOR
_______________ LESSEE
RIDER TO LEASE
(CONTINUED)
LESSEE represents that it has obtained a loan commitment (the "Commitment") from
the Massachusetts Development Finance Agency ("MDFA") for a $2,500,000 loan from
the Emerging Technology Fund (the "ETF Loan") to fund the purchase and
installation of leasehold improvements and equipment in connection with Phase 1
and Phase 2 of the Lessee Work. LESSOR acknowledges receipt of a copy of the
Commitment and consents to the granting of a leasehold mortgage to MDFA, the
terms of which leasehold mortgage, to the extent such terms apply to LESSOR, if
at all, shall be subject to LESSOR's approval, which approval shall not be
unreasonably withheld or delayed.
(4) In connection with the financing of Phase 1, LESSOR shall pay the
Construction Allowance to LESSEE monthly within fifteen (15) days after
submission each month by LESSEE to LESSOR of a written requisition therefor,
certified as true, correct and complete by a duly authorized officer of LESSEE
and accompanied by (i) copies of invoices covering the portion of the Lessee
Work which is the subject of the requisition, (ii) a partial lien waiver from
the general contractor for the portion of the Lessee Work which is the subject
of the requisition, and (iii) written certification from LESSEE's architect,
engineer or construction manager stating that the Lessee Work described in the
requisition has been completed in accordance with LESSEE's plans and
specifications. LESSEE shall not be entitled to submit any requisition to LESSOR
for payment of the Construction Allowance unless and until (a) LESSEE shall have
first expended at least $1,000,000 for the payment of Construction Costs for
Phase 1 from ETF Loan proceeds and/or other funds of LESSEE other than the
Construction Allowance toward the cost of the Lessee Work, and (b) LESSEE shall
have delivered to LESSOR lien waivers from the general contractor for that
portion of the Phase 1 construction work which has been paid for by the
expenditure of the foregoing $1,000,000.
(5) (a) In connection with the financing of Phase 2, LESSOR shall have
no obligation to pay any construction allowance or other payment to LESSEE;
however, prior to commencement of construction of any leasehold improvements for
Xxxxx 0, XXXXXX shall be obligated to establish a construction escrow account
(the "Escrow Account") and to deposit into the Escrow Account funds (the "Escrow
Funds") in an amount equal to fifty percent (50%) of the final estimated
Construction Costs for Phase 2. LESSEE presently estimates that the amount of
the Escrow Funds, equal to fifty percent (50%) of the Construction Costs for
Phase 2, will be $1,500,000. The Escrow Account shall be administered by a
nationally recognized title insurance company or such other escrow agent
selected by LESSEE in its reasonable judgment and approved by LESSOR in its
reasonable discretion (the "Escrow Agent"). The Escrow Funds shall be held and
disbursed pursuant to the terms of an Escrow Agreement to be entered into by
LESSEE, LESSOR and the Escrow Agent. The Escrow Agreement shall incorporate the
terms of this Section H(5) and such other terms as are mutually acceptable to
the parties, in their reasonable judgment. The Escrow Funds shall be held in an
interest-bearing account for the benefit of LESSEE for payment of Construction
Costs for Phase 2. The Escrow Funds shall be disbursed to LESSEE monthly within
fifteen (15) days after submission by LESSEE to Escrow Agent (with a copy to
LESSOR) of a written requisition therefor, certified as true, correct and
complete by a duly authorized officer of LESSEE and accompanied by the
documentation described in clauses (i), (ii) and (iii) of Section H(4) above.
(b) LESSEE shall not be entitled to submit any requisition to
Escrow Agent for payment from the Escrow Account unless and until (a) LESSEE
shall have first expended an amount equal to fifty percent (50%) of the
Construction Costs for Phase 2 from ETF Loan proceeds and/or other funds of
LESSEE other than the Escrow Funds (collectively, the "Additional Funds"), and
(b) LESSEE shall have delivered to the Escrow Agent (with a copy to LESSOR) lien
waivers from the general contractor for that portion of the Phase 2 construction
work which has been paid for by the expenditure of the Additional Funds.
(c) Notwithstanding any of the foregoing to the contrary, if
LESSEE permits any mechanic's lien arising as a result of non-payment by LESSEE
of any just invoice (a "disputed invoice") for construction work performed at
the direction of LESSEE in connection with Phase 2, to remain on the leased
premises for a period of more than thirty (30) days, LESSOR shall be entitled to
deliver a written demand (a "LESSOR Demand") to Escrow Agent, with a copy to
LESSEE, to request payment from the Escrow Funds of the disputed invoice in
order to remove the mechanic's lien. Unless within thirty (30) days after
receipt of the LESSOR Demand, LESSEE shall either (i) pay the disputed invoice,
or (ii) bond off or otherwise remove the mechanic's lien, or (iii) commence an
action in good faith to dispute the validity of the disputed invoice and in
connection therewith provide LESSOR with adequate security (which adequate
security may be a set-aside of Escrow Funds equal to the unpaid invoice) or
other assurances, reasonably acceptable to LESSOR, that, pending the conclusion
of the litigation, the leased premises will not be adversely affected by the
mechanic's lien. If LESSEE fails to timely comply with any of options (i)
through (iii) above, the Escrow Agent shall be authorized to disburse sufficient
funds from the Escrow Funds to pay the disputed invoice and remove the
mechanic's lien.
(d) Notwithstanding any of the foregoing to the contrary, if
prior to the completion of Phase 2 of the Lessee Work (i) LESSEE is in default
under this lease and such default remains uncured after the expiration of any
applicable
_______________ LESSOR
_______________ LESSEE
RIDER TO LEASE
(CONTINUED)
notice and grace period, and (ii) LESSOR terminates this lease and re-enters and
takes possession of the leased premises, LESSOR shall be entitled to request
payments from the Escrow Account (to the extent of any funds remaining in the
Escrow Account), up to a maximum amount of $150,000 (the "Restoration Funds"),
to be used exclusively for payment of construction costs for the restoration of
the leased premises into rentable condition necessitated by LESSEE's failure to
complete Phase 2. Escrow Agent shall pay the Restoration Funds to LESSOR monthly
within fifteen (15) days after submission each month by LESSOR to Escrow Agent
(with a copy to LESSEE) of a written requisition therefor, certified as true,
correct and complete by a duly authorized officer of LESSOR and accompanied by
copies of invoices covering the portion of the restoration work which is the
subject of the requisition. Unless and until the occurrence of the events
described in clauses (i) and (ii) of this Section H(5)(d), nothing in this
Section H(5)(d) shall limit the right of LESSEE to submit requisitions to Escrow
Agent for payment in any amount from the Escrow Account; it being agreed that,
in connection with the submission of requisitions by LESSEE to Escrow Agent
pursuant to this Section H(5), LESSEE shall be under no obligation to retain any
minimum amount (whether $150,000 or less) in the Escrow Account after LESSEE
satisfies the conditions of Section H(5)(a) and (b) above and that LESSEE shall
be entitled to requisition all of the Escrow Funds from the Escrow Account. If
LESSOR is entitled to request payments from the Escrow Account pursuant to this
Section H(5)(d), in any event, upon disbursement of the maximum amount of
Restoration Funds to LESSOR (i.e., $150,000), as provided for in Section H(5),
all remaining funds in the Escrow Account (if any) and all interest accrued
thereon shall be disbursed to LESSEE, provided LESSEE shall have delivered
evidence reasonably satisfactory to LESSOR that no lien(s) exist, or are
attached to, or could be validly asserted against, the property of which the
leased premises are a part arising out of Phase 2 of the work. Examples of such
evidence include a lien waiver from the general contractor and a writing from
LESSEE or a third party reasonably satisfactory to LESSOR that the time period
within which to validly assert, perfect or file a lien in accordance with M.G.L.
c. 254 against the property of which the leased premises are a part shall have
passed.
(e) Upon payment of all Construction Costs for Phase 2, the
Escrow Agent shall disburse all remaining funds, if any, including any accrued
interest, in the Escrow Account to LESSEE and neither LESSOR nor LESSEE shall
have any further rights or obligations under this Section H(5) provided LESSEE
shall have first delivered the following to LESSOR and the Escrow Agent: (i)
final lien waivers from the general contractor, and (ii) a written certification
from LESSEE's architect, engineer or construction manager stating that Phase 2
of the Lessee Work has been completed in accordance with LESSEE's plans and
specifications.
I. LESSEE may occupy the leased premises as of December 1, 2005, provided
this lease has been fully executed, the security deposit and the first nine (9)
months' base rent due (in the sum of $413,623.08) have been fully paid, and all
required insurance certificates have been produced, without further obligation
for the payment of monthly base rent until March 1, 2007. All other terms,
covenants and conditions of this lease shall apply during this period.
J. INTENTIONALLY DELETED.
K. EXTENSION OPTION. Provided that at the time of exercise there exists no
default of LESSEE and this lease is still in full force and effect, LESSEE shall
have the right and option to extend the term of this lease for one (1) extended
term of four (4) years (the "Option Term"), commencing on June 1, 2012 and
ending on May 30, 2016. LESSEE shall exercise such option to extend by giving
written notice to LESSOR not later than eight (8) months prior to the expiration
of the initial term. The giving of such notice by LESSEE shall automatically
extend the term of this lease for the Option Term and no instrument of renewal
need be executed. In the event that LESSEE fails to give such notice to LESSOR,
this lease shall automatically terminate at the end of the initial term and
LESSEE shall have no further option to extend the term of this lease. The Option
Term shall be on all the terms and conditions of this lease except that the base
rent shall be as determined pursuant to this Section K.
If LESSEE exercised the extension option, LESSOR and LESSEE shall attempt to
agree upon the Current Market Rental Rate using their best good-faith efforts.
If LESSOR and LESSEE fail to reach an agreement within sixty (60) days following
LESSEE's exercise of such extension option, then LESSEE shall have the right to
rescind LESSEE's exercise of the extension option by written notice to LESSOR,
in which event the lease shall terminate upon the end of the initial term. If no
agreement is reached and LESSEE does not elect to rescind the extension option,
then the annual base rent shall be the average annual rental rate of other
leases with similar financial terms for comparable lab space, of comparable size
and layout in comparable buildings in the local market area (which shall be
defined as the area bounded by Xxxxx 00, Xxxxx 000 and the Massachusetts
Turnpike, including the entire area of any municipality intersected by one of
these highways), entered into during the twelve (12) month period immediately
preceding the commencement of the Option Term. LESSEE shall continue to pay the
then current rental rate upon commencement of the Option Term until such new
annual base rent is determined, whereupon any such payments shall be adjusted
retroactively to account for the new rent.
_______________ LESSOR
_______________ LESSEE
RIDER TO LEASE
(CONTINUED)
L. Provided LESSEE is not then in arrears of any rent or invoice payments
or otherwise in default of this lease, LESSEE shall have a one-time option to
cancel this lease, for any reason or no reason at all, effective May 30, 2009,
by serving LESSOR with written notice to that effect on or before November 30,
2008, along with a simultaneous payment of a lease termination fee equal to
three (3) months' base rent at the then current rate, plus $603,063,
representing the unpaid balance of the amortized Construction Allowance and
brokerage fee. LESSEE shall also remain responsible for all damages to the
leased premises in accordance with the lease and for rent and all other charges
due under the lease, including, without limitation, utility charges and real
estate tax increases, through the revised lease termination date. Time is of the
essence.
M. * LESSEE shall have access to the leased premises seven (7) days per
week, twenty-four (24) hours per day. LESSEE acknowledges and agrees that LESSOR
has no responsibility for providing any security services for the leased
premises, and LESSEE assumes any and all risks in that regard.
N. LESSEE shall be entitled to install, at LESSEE's sole expense, an
illuminated exterior sign affixed to the building, in a location to be mutually
agreed on by LESSOR and LESSEE and in compliance with LESSOR's design and
construction standards and any and all applicable ordinances, bylaws, and state
and local building codes. In addition, prior to commencing installation, LESSEE
shall obtain all necessary permits and LESSOR's written consent as to size,
graphics, construction and the like. If applicable, LESSEE shall, at LESSEE's
sole expense, remove any existing signage and patch and finish any holes prior
to sign installation. Trees, shrubs, landscaping and architectural elements may
be removed or relocated, also at LESSEE's sole expense, with prior written
approval of LESSOR. Following installation, LESSEE shall maintain said sign in
good working order and condition, and if LESSEE fails to do so, LESSOR may elect
to have said sign repaired or removed from the building at LESSEE's sole
expense.
O. LESSOR grants LESSEE the exclusive right to use the 500 KW generator
located at the leased premises during the term of the lease. LESSEE shall be
solely responsible for the maintenance and fueling of said generator. LESSOR
makes no representation about the suitability of said generator for LESSEE's use
or said generator's condition. LESSEE shall return said generator to LESSOR at
the termination of this lease in substantially the same condition as it is in at
the commencement of the lease, reasonable wear and tear and damage from casualty
or condemnation (only) excepted.
P. INTENTIONALLY DELETED.
Q. * In the event LESSOR approves a sublease or an assignment of the lease,
LESSEE shall pay LESSOR on the first day of each month during the term of the
sublease or assignment, fifty percent (50%) of any amount by which the payments
due to LESSEE under the sublease or assignment exceed the rent payment due from
LESSEE to LESSOR for that month. Such amount shall, however, be calculated on a
proportionate basis in the case of a sublease of only a portion of the leased
premises. In calculating any excess rent payable by LESSEE to LESSOR pursuant to
this provision, LESSEE shall first be entitled to deduct (i) improvement
allowances or other economic concessions granted by LESSEE to the assignee or
sublessee; (ii) the unamortized costs (amortized over the remaining term of this
lease) of initial and subsequent improvements to the subject portion of the
leased premises paid for by LESSEE; (iii) all costs incurred by LESSEE to
advertise the subject portion of the leased premises for assignment or sublease;
and (iv) brokerage commissions and/or legal fees paid by LESSEE in connection
with the assignment or sublease.
R. * With respect to Section 11, "prospective tenant" shall mean any entity
or individual that during the previous six (6) months, has been in contact with
LESSOR about leasing space in a property owned or managed by LESSOR, either
directly or through an agent or broker.
S. * Sudbury Research Center, LLC, OWNER of the leased premises referred to
in Section 28 above, hereby consents to this lease, and, provided LESSEE is not
then in default of this lease, agrees to recognize all rights of LESSEE
hereunder.
T. * LESSEE's agreement to subordinate this lease to any and all mortgages
and/or other instruments in the nature of a mortgage, now or at any time in the
future, is conditional upon the mortgagee's agreement that LESSEE's possession
will not be disturbed so long as LESSEE is not in default in the payment of rent
or other covenants or obligations hereof.
U. * LESSOR warrants that, as of the date of execution of this lease, the
leased premises are not encumbered by any mortgage or instrument in the nature
of a mortgage.
V. * With respect to any condition existing prior to the commencement of
LESSEE's occupancy under this lease, LESSOR shall indemnify, defend and hold
LESSEE harmless from any and all suits, judgments, or liabilities, for any
"release," as defined in Section 101(22) of the Comprehensive Environmental
Response, Compensation and Liability Act
_______________ LESSOR
_______________ LESSEE
RIDER TO LEASE
(CONTINUED)
of 1980, as amended ("CERCLA") or in Mass. X. X. x. 21E, Section 2 ("c. 21E"),
of any "hazardous substance" as defined in Section 101(14) of CERCLA, any
"hazardous material" as defined in Section 2 of c. 21E or any petroleum
(including crude oil or any fraction thereof) as a result of any activity on the
property of which the leased premises are a part occurring prior to LESSEE's
occupancy and not caused in any way by LESSEE.
W. * LESSEE shall reasonably and quietly have, hold and enjoy the leased
premises for the term hereof without hindrance or molestation from LESSOR,
provided LESSEE is not in arrears of any rent or invoice payment and is in full
compliance with all terms, conditions and obligations of this lease.
X. * Except in the case of an emergency, LESSOR's access to the leased
premises will be at such times as not to unreasonably interfere with the normal
business operations of LESSEE.
Y. * Notwithstanding anything to the contrary in Section 25 above, LESSEE
may use or store hazardous materials or hazardous wastes within the leased
premises, provided LESSEE fully complies with any applicable local, state, or
federal law, regulation, ordinance and bylaw. LESSEE shall be solely responsible
for and shall indemnify and hold LESSOR and OWNER harmless from any and all
liability, damage and personal injury in any way associated with any use,
storage, or disposal of such materials. In the event any hazardous materials or
hazardous wastes remain in the leased premises after the termination of the
lease (the "Vacate Date"), LESSEE authorizes LESSOR to properly dispose of them
on LESSEE's behalf and at LESSEE's sole expense.
Z. Prior to the Vacate Date, LESSEE, at LESSEE's sole expense, shall engage
an independent and certified industrial hygienist ("the CIH") to prepare a
decontamination work plan ("work plan") for the leased premises in accordance
with all CIH professional standards and all applicable laws to address all
conditions arising out of LESSEE's tenancy. LESSEE shall complete all measures
specified in the work plan, including but not limited to, testing and cleaning
of all surfaces, HVAC equipment, ductwork, and other building components
recommended therein. The CIH shall certify to LESSOR that as of the Vacate Date,
the entire leased premises and any extension thereof used in any way by LESSEE
are free from any harmful chemical, biological, radioactive or other
contamination arising out of LESSEE's tenancy, in accordance with all applicable
CIH professional standards and all applicable laws, regulations, ordinances and
bylaws. Said certification shall confirm the clean condition of all HVAC
equipment, ductwork, plumbing fixtures, drains, tanks, mechanical systems,
cabinetry, countertops, walls, ceilings, floors, casework, pH adjustment tanks
and acid neutralization equipment, all other surfaces and the indoor air quality
at the leased premises; that LESSEE has completed all measures specified in the
work plan; and that there are no restrictions on future use and occupation by
others. A copy of the work plan shall be provided to LESSOR together with this
certification. Also, in the event LESSEE uses or stores any radioactive
materials within the leased premises at any time, LESSEE shall obtain a written
statement from the commonwealth of Massachusetts fully decommissioning the
leased premises in accordance with all applicable laws, regulations, ordinances
and bylaws. These certifications and all cleaning shall be completed prior to
the Vacate Date. The leased premises shall be deemed occupied by LESSEE unless
and until LESSEE has fully vacated and returned the leased premises in
accordance with the lease, has provided the required certifications to LESSOR
and has completed all cleaning.
AA. *LESSEE's maintenance obligations as provided in Section 10 above shall
specifically include, without limitation, repair and replacement as needed, of
all acid neutralization, pH adjustment and other wastewater treatment tanks and
equipment, and drain lines into which said tanks and equipment discharge;
backflow preventers; air filters; and all other exhaust and intake fan
components, including belts. LESSEE shall be responsible for all maintenance and
repairs of said equipment, both routine and otherwise, including semiannual (or
more frequent if necessary) cleaning and replenishment of neutralizing materials
in pH adjustment tanks. LESSEE acknowledges and agrees that the plumbing,
electrical, heating and cooling systems provided and maintained by LESSOR are
intended and sized only for office use, and any maintenance or additional
equipment necessitated by LESSEE's use of and operations at the leased premises
shall be at LESSEE's sole expense. LESSEE agrees that all wastewater discharged
from the leased premises shall be neutralized to a pH range between 6 and 9, or,
in the case of deionized water, shall be appropriately diluted or treated, and
shall fully comply with all applicable state and local statutes, codes,
regulations and/or ordinances.
BB. * LESSEE shall notify LESSOR in writing upon LESSOR's request and
thirty (30) days prior to the Vacate Date of LESSEE's compliance with its
inspection and maintenance obligations as stated above.
CC. * The preceding four (4) paragraphs regarding LESSEE's responsibility
for the maintenance and condition of the leased premises are a key consideration
of this lease.
_______________ LESSOR
_______________ LESSEE
RIDER TO LEASE
(CONTINUED)
DD. * LESSOR consents to LESSEE's access to the roof of the building for
the purpose of performing LESSEE's maintenance obligations as set forth above
(only). LESSEE agrees that no other work shall be carried on or any other
equipment installed on the roof without the prior written consent of LESSOR,
which consent shall not be unreasonably withheld or delayed. LESSEE shall be
fully responsible for, and agrees to indemnify and hold LESSOR harmless from,
any and all property damage and personal injury associated in any way with the
activities of LESSEE and LESSEE's agents, employees and contractors on the roof
and/or the location, installation or maintenance of LESSEE's equipment on the
roof, including but not limited to, damage to the watertight integrity of the
roof and the roof membrane, from whatever cause.
EE. Provided LESSEE is not then in arrears of any rent or invoice payments
or otherwise in default of this lease, LESSOR shall not lease the adjacent
premises at 34-L and 00-X Xxxxxxxx Xxx for any of the following uses: (i) work
with infectious agents or development or production of antibiotics, or (ii)
containment beyond CDC/NIH Biosafety Level 1 (BSL-1), if said use would cause
the Food and Drug Administration either (a) to refuse to approve the leased
premises for LESSEE's planned pharmaceutical manufacturing use, or (b) to revoke
or otherwise restrict any permit or approval granted by the Food and Drug
Administration to LESSEE for the use of the leased premises as a pharmaceutical
manufacturing facility.
FF. NOTICE OF LEASE. At the request of either party, LESSOR or LESSEE shall
promptly execute, acknowledge and deliver a Notice of Lease sufficient for
recording, which may be recorded, at the requesting party's cost and expense.
GG. MORTGAGE OF LEASE. LESSEE is given and has the right, without LESSOR's
consent, to mortgage its interest in this lease to the MDFA (the "Leasehold
Mortgagee"), except that no such leasehold mortgage shall extend to or affect
the fee interest, the reversionary interest, or the estate of LESSOR in and to
any land, building or improvements, now or hereafter located or erected on the
property of which the leased premises are a part. The Leasehold Mortgagee shall
have the benefit of the leasehold mortgagee protection provisions attached
hereto as Exhibit G for so long as the ETF Loan remains outstanding. Upon
satisfaction of the ETF Loan, Exhibit G shall be of no further force or effect.
Within fifteen (15) days of receipt of the request of the Leasehold Mortgagee,
LESSOR shall deliver in recordable form a certification to Leasehold Mortgagee
certifying that this lease is in full force and effect and that there are no
defenses or offsets thereto, or stating those defenses or offsets claimed by
LESSOR; provided, however that LESSOR shall not be required to deliver such
certification on more than two (2) occasions in any 12-month period.
LESSOR: XXXXXXXX PROPERTIES, LLC LESSEE: BIOVEX, INC.
By: /s/ Xxxxxx Xxxxxx By: /s/ Xxxxxx Xxxxxx-Xxxxxx
--------------------------------- ------------------------------------
Duly authorized Duly authorized
Print Name: Xxxxxx Xxxxxx Print Name: Xxxxxx Xxxxxx-Xxxxxx
Title: President Title: President
Date: 12/2/5 Date: 12/2/5
