EXHIBIT 10.46
XXXXXXXX PROPERTIES LLC
STANDARD FORM
COMMERCIAL LEASE
In consideration of the covenants herein contained, Xxxxxxxx Properties, LLC,
hereinafter called LESSOR, does hereby lease to Sequenom, Inc. (a DE Corp.),
00000 Xxxxxxxx Xxxxxx Xxxx, Xxx Xxxxx, XX 00000-0000 hereinafter called LESSEE,
the following described premises, hereinafter called the leased premises:
approximately 3,292 square feet (including 15% common area) at 000-X Xxxxx Xxxx,
Xxxxx 000, Xxxxxxx, XX 00000.
TO HAVE AND HOLD the leased premises for a term of three (3) years commencing
at noon on August 1, 1999 and ending at noon on July 30, 2002 unless sooner
terminated as herein provided. LESSOR and LESSEE now covenant and agree that
the following terms and conditions shall govern this lease during the term
hereof and for such further time as LESSEE shall hold the leased premises.
1. RENT. LESSEE shall pay to LESSOR base rent at the rate of forty nine
thousand two hundred fifteen (49,215.00) U.S. dollars per year, drawn on a U.S.
bank, payable in advance in monthly installments of $4,101.25 on the first day
in each calendar month in advance, the first monthly payment to be made upon
LESSEE's execution of this lease, including payment in advance of appropriate
fractions of a monthly payment for any portion of a month at the commencement or
end of said lease term. All payments shall be made to LESSOR or agent at 000
Xxxx Xxxxxxxx Xxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, or at such other place as
LESSOR shall from time to time in writing designate. If the "Cost of Living"
has increased as shown by the Consumer Price Index (Boston, Massachusetts, all
items, all urban consumers), U.S. Bureau of Labor Statistics, the amount of base
rent due during each calendar year of this lease and any extensions thereof
shall be annually adjusted in proportion to any increase in the Index. All such
adjustments shall take place with the rent due on January 1 of each year during
the lease term. The base month from determine the amount of each increase in
the Index shall be January 1999, which figure shall be compared with the figure
for November 1999, and each November thereafter to determine the percentage
increase (if any) in the base rent to be paid during the following calendar
year. In the event that the Consumer Price Index as presently computed is
discontinued as a measure of "Cost of Living" changes, any adjustment shall then
be made on the basis of a comparable index then in general use.
2. SECURITY DEPOSIT. LESSEE shall pay to LESSOR a security deposit in the
amount of eight thousand two hundred (8,200.00) U.S. dollars upon the execution
of this lease by LESSEE, which shall be held as security for LESSEE's
performance as herein provided and refunded to LESSEE without interest at the
end of this lease, subject to LESSEE's satisfactory compliance with the
conditions hereof. LESSEE may not apply the security deposit to payment of the
last month's rent. In the event of any default or breach of this lease by
LESSEE, LESSOR may immediately 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, with the balance applied to
outstanding rent. If all or any portion of the security deposit is applied to
cure a default or breach during the term of the lease, LESSEE shall be
responsible for restoring said deposit forthwith, and failure to do so shall be
considered a substantial default under the lease. LESSEE's failure to remit the
full security deposit or any portion thereof when due shall also constitute a
substantial lease default. Until such time as LESSEE pays the security deposit
and first month's rent, LESSOR may declare this lease null and void for failure
of consideration.
3. USE OF PREMISES. LESSEE shall use the leased premises only for the
purpose of executive and administrative offices, sales, and customer support
services.
4. ADDITIONAL RENT. 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) of any increase in the real estate taxes levied against the land and
building of which the leased premises are a part (hereinafter called the
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. LESSEE shall make payment within thirty (30) days of written
notice from LESSOR that such increased taxes are payable, and 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, 1999.
5. UTILITIES. LESSOR shall provide equipment per LESSOR's building standard
specifications 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.
LESSEE shall pay the utility provider or LESSOR, as applicable, for all such
utility charges as determined by separate meters serving the leased premises
and/or as a proportionate share of the utility charges for the building if not
separately metered. LESSEE shall also pay LESSOR a proportionate share of any
other fees and charges relating in any way to utility use at the building. No
plumbing, construction or electrical work of any type shall be done without
LESSOR's prior written approval and LESSEE obtaining the appropriate municipal
permit.
6. COMPLIANCE WITH LAWS. LESSEE acknowledges that no trade, occupation,
activity or work shall be conducted in the leased premises or use made thereof
which 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 occupancy. LESSEE
shall be responsible for causing the leased premises and any alterations by
LESSEE which are allowed hereunder to be in full compliance with any applicable
statute, regulation, ordinance or bylaw.
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 just and
proportionate abatement of rent shall be made, and LESSEE may elect to terminate
this lease it: (a) LESSOR fails to give written notice within thirty (30) days
of intention to restore the leased premises, or (b) LESSOR fails to restore the
leased premises to a
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condition substantially suitable for their intended use within ninety (90) days
of said fire, casualty or taking. 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.
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 or regulation from time to time published by
the Insurance Services Office (or successor), local Fire Department, LESSOR's
insurer, or any similar body. LESSEE shall on demand reimburse LESSOR, and all
other tenants, all extra insurance premiums caused by LESSEE's use of the leased
premises. LESSEE shall not vacate the leased premises or permit same to be
unoccupied other than during LESSEE's customary non-business days or hours.
9. MAINTENANCE OF PREMISES. LESSOR will be responsible for all structural
maintenance of the leased premises and for the normal daytime maintenance of all
space heating and cooling equipment, sprinklers, doors, locks, plumbing, and
electrical wiring, but specifically excluding damage caused by the careless,
malicious, willful, or negligent acts of LESSEE or others, chemical, water or
corrosion damage from any source, and maintenance of any non "building standard"
leasehold improvements. 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 term or as they may be put in during the term of this lease,
normal wear and tear and damage by fire or other casualty only excepted, and
whenever necessary, to replace light bulbs, plate glass and other glass therein,
acknowledging that the leased premises are now in good order and the light bulbs
and glass whole. LESSEE will properly control or vent all solvents, degreasers,
smoke, odors, etc. and shall not cause the area surrounding the leased premises
to be in anything other than a neat and clean condition, depositing all waste in
appropriate receptacles. 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 acid or corrosive 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. LESSEE will protect any carpet with plastic or masonite chair
pads under any rolling chairs. Unless heat is provided at LESSOR's expense,
LESSEE shall maintain sufficient heat to prevent freezing of pipes or other
damage. Any increase in air conditioning equipment or electrical capacity or
any installation or maintenance of equipment which is necessitated try some
specific aspect of LESSEE's use of the leased premises shall be LESSEE's sole
responsibility, at LESSEE's expense and subject to LESSOR's prior written
consent. All maintenance provided by LESSOR shall be during LESSOR's normal
business hours.
10. ALTERATIONS. LESSEE shall not make structural alterations or additions
of any kind to the leased premises, but may make nonstructural alterations
provided LESSOR consents thereto in writing. All such allowed alterations shall
be at LESSEE's expense and shall conform with LESSOR's construction
specifications. If LESSOR or LESSOR's agent provides any services or
maintenance for LESSEE in connection with such alterations or otherwise under
this lease, any just invoice will be promptly paid. LESSEE shall not permit any
mechanics' liens, or similar liens, to remain upon the leased premises in
connection with work of any character
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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 alterations or additions shall become part of the leased premises and the
property of LESSOR. Any alterations completed by LESSOR or LESSEE shall be
LESSOR's "building standard" unless noted otherwise. LESSOR shall have the right
at any time to change the arrangement of parking areas, stairs, walkways or
other common areas of the building.
11. ASSIGNMENT OR SUBLEASING. LESSEE shall not assign this lease or sublet
or allow any other firm or individual to occupy the whole or any part of the
leased premises without LESSOR's prior written consent. Notwithstanding such
assignment or subleasing, LESSEE and GUARANTOR shall remain liable to LESSOR for
the payment of all rent and for the full performance of the covenants and
conditions of this lease. LESSEE shall pay LESSOR promptly for legal and
administrative expenses incurred by LESSOR in connection with any consent
requested hereunder by LESSEE.
12. 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.
13. LESSOR'S ACCESS. LESSOR or agents of LESSOR may at any reasonable time
enter to view the leased premises, to make repairs and alterations as LESSOR
should elect to do for the leased premises, the common areas or any other
portions of the building, to make repairs which LESSEE is required but has
failed to do, and to show the leased premises to others.
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 except for claims arising out of LESSOR's negligence. Notwithstanding
the foregoing, however, LESSEE shall hold LESSOR and OWNER harmless from any and
all claims by LESSEE's agents, representatives, employees, callers or invitees
for damage or personal injury resulting in any way from snow or ice on any area
serving the leased premises.
15. ACCESS AND PARKING. 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. Said parking areas plus any stairs,
corridors, walkways, elevators or other common areas (hereinafter collectively
called the common areas) shall in all cases be considered a part of the leased
premises when they are used by LESSEE or LESSEE's employees, agents, callers or
invitees. LESSEE will not obstruct in any manner any portion of the building or
the walkways or approaches to the building, and will conform to all rules and
regulations now or hereafter made by LESSOR for parking, and for the care, use,
or alteration of the building, its facilities and approaches. LESSEE further
warrants that LESSEE will not permit any employee or visitor to violate this or
any other covenant or obligation of LESSEE. No unattended parking will be
permitted between 7:00 PM and 7:00 AM without LESSOR's prior written approval,
and from December 1 through March 31 annually, such parking shall be permitted
only in those areas
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specifically 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 agents, employees, invitees or callers, at any time. LESSOR
shall not be responsible for providing any security services for the leased
premises.
16. LIABILITY. LESSEE shall be solely responsible as between LESSOR and
LESSEE for deaths or personal injuries to all persons whomsoever occurring in or
on the leased premises (including any common areas that are considered part of
the leased premises hereunder) from whatever cause arising, and damage to
property to whomsoever belonging arising out of the use, control, condition or
occupation of the leased premises by LESSEE; and LESSEE agrees to indemnity and
save harmless LESSOR and OWNER from any and all liability, including but not
limited to costs, expenses, damages, causes of action, claims, judgments and
attorney's fees caused by or in any way growing out of any matters aforesaid,
except for death, personal injuries or property damage directly resulting from
the sole negligence of LESSOR.
17. INSURANCE. LESSEE will 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 that are considered
part of the leased premises hereunder) or their use by LESSEE, such policy to
insure LESSEE, LESSOR and OWNER against any claim up to One Million (1,000,000)
Dollars in the case of any one accident involving bodily injury (including
death), and up to One Million (1,000,000) Dollars against any claim for damage
to property. 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. LESSEE will file with LESSOR prior to occupancy certificates and any
applicable riders or endorsements showing that such insurance is in force, and
thereafter will file renewal certificates prior to the expiration of any such
policies. All such insurance certificates shall provide that such policies
shall not be cancelled without at least ten (10) days prior written notice to
each insured. In the event LESSEE shall fail to provide or maintain such
insurance at any time during the term of this lease, then LESSOR may elect to
contract for such insurance at LESSEE's expense.
18. SIGNS. LESSOR authorizes, and LESSEE at LESSEE's expense agrees to erect
promptly upon commencement of this lease, signage for the leased premises in
accordance with LESSOR's building standards for style, size, location, etc.
LESSEE shall obtain the prior written consent of LESSOR before erecting a sign
on the leased premises, which consent shall include approval as to size,
wording, design and location. LESSOR may remove and dispose of any sign not
approved, and or displayed in conformance with this lease.
19. BROKERAGE. LESSEE warrants and represents to LESSOR that LESSEE has
dealt with no broker or third person with respect to this lease except Xxx Xxx
of Xxxxxxxx & Grew, and LESSEE agrees to indemnity LESSOR against any brokerage
claims arising by virtue of this lease. LESSOR warrants and represents to
LESSEE that LESSOR has employed no exclusive broker or agent in connection with
the letting of the leased premises.
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
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made or instituted with respect to LESSEE or LESSEE's property; (b) LESSEE shall
default in the observance or performance of any of LESSEE's covenants,
agreements, or obligations hereunder, other than substantial monetary payments
as provided below, and such default shall not be corrected within ten (10) days
after written notice thereof; or (c) LESSEE vacates the leased premises, 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 to remove LESSEE's
effects, without being guilty of any manner of trespass, 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 shall default in the payment of the
security deposit, rent, taxes, substantial invoice from LESSOR or LESSOR's agent
for goods and/or services or other sum herein specified, and such default shall
continue for ten (10) days after written notice hereof, and, because both
parties agree that nonpayment of said sums when due is a substantial breach of
the lease, and, because the payment of rent in monthly installments is for the
sole benefit and convenience of LESSEE, then in addition to the foregoing
remedies the entire balance of rent which is due hereunder shall become
immediately due and payable as liquidated damages. LESSOR, without being under
any obligation to do so and without thereby waiving any default, may remedy same
for the account and at the expense of LESSEE, if LESSOR pays or incurs any
obligations for the payment of money in connection therewith, such sums paid or
obligations incurred plus interest and costs, shall be paid to LESSOR by LESSEE
as additional rent. 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 outstanding invoice or other payment due
to LESSOR, with the balance applied to outstanding rent. LESSEE agrees to pay
reasonable attorney's fees and/or administrative costs incurred by LESSOR in
enforcing any or all obligations of LESSEE under this lease at any time. LESSEE
shall pay LESSOR interest at the rate of eighteen (18) percent per annum on any
payment from LESSEE to LESSOR which is past due.
21. NOTICE. Any notice from LESSOR to LESSEE relating to the leased premises
or to the occupancy thereof shall be deemed duty served when left at the leased
premises addressed to LESSEE, or served by constable, or sent to the leased
promises by certified mail, return receipt requested, postage prepaid, addressed
to LESSEE. Any notice from LESSEE to LESSOR relating to the leased premises or
to the occupancy thereof shall be deemed duty served when served by constable,
or delivered to LESSOR by certified mail, return receipt requested, postage
prepaid, addressed to LESSOR at 000 Xxxx Xxxxxxxx Xxxx, Xxxxxx, XX 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. In the event that LESSEE takes possession of said leased
premises prior to the start of the lease term, LESSEE will perform and observe
all of LESSEE's covenants from the date upon which LESSEE takes possession
except the obligation for the payment of extra rent for any period of less than
one month. LESSEE shall not remove LESSEE's goods or property from the leased
premises other than in the ordinary and usual course of business, without having
first paid and satisfied LESSOR for all rent which may become due during the
entire term of this lease. LESSOR may require LESSEE to relocate to another
similar facility upon prior written notice to LESSEE and on terms comparable to
those herein. In the event that LESSEE continues to occupy or control all or
any part of the leased premises after the agreed termination of this lease
without the written permission of LESSOR, then LESSEE shall be
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liable to LESSOR for any and all loss, damages or expenses incurred by LESSOR,
and all other terms of this lease shall continue to apply except that rent shall
be due in full monthly installments at a rate of one hundred fifty (150) percent
of that which would otherwise be due under this lease, it being understood
between the parties that such extended occupancy is as a tenant at sufferance
and is solely for the benefit and convenience of LESSEE and as such has greater
rental value. LESSEE's control or occupancy of all or any part of the leased
premises beyond noon on the last day of any monthly rental period shall
constitute LESSEE's occupancy for an entire additional month, and increased rent
as provided in this section shall be due and payable immediately in advance.
LESSOR's acceptance of any payments from LESSEE during such extended occupancy
shall not alter LESSEE's status as a tenant at sufferance.
23. FIRE PREVENTION. LESSEE agrees to use every reasonable precaution
against fire and agrees to provide and maintain approved, labeled fire
extinguishers, emergency lighting equipment, and exit signs and 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, or any similar body.
24. OUTSIDE AREA. Any goods, equipment, or things of any type or description
held or stored 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 may from time to time be designated by
LESSOR. Alternatively, if a shared dumpster or compactor is provided by LESSOR,
LESSEE shall pay its proportionate share of any costs associated therewith.
25. ENVIRONMENT. LESSEE will so conduct and operate the leased premises 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, noise, pets, accumulation of garbage or trash, vermin or other pests, or
otherwise, and will at its expense employ a professional pest control service it
necessary. LESSEE agrees to maintain efficient and effective devices for
preventing damage to heating equipment from solvents, degreasers, cutting oils,
propellants, etc. which may be present at the leased premises. No hazardous
materials or wastes shall be stored, disposed of, or allowed to remain at the
leased premises at any time, and LESSEE shall be solely responsible for any and
all corrosion or other damage associated with the use, storage and/or disposal
of same by LESSEE.
26. RESPONSIBILITY. Neither LESSOR nor OWNER shall be held liable to anyone
for loss or damage caused in any way by the use, leakage, seepage or escape of
water from any source, or for the cessation of any service rendered customarily
to said premises or buildings, or agreed to by the terms of this lease, due to
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 for said building, or any cause beyond LESSOR's
immediate control.
27. SURRENDER. LESSEE shall at the termination of this lease remove all of
LESSEE's goods and effects from the leased premises. LESSEE shall deliver to
LESSOR the leased premises and all keys and locks thereto, all fixtures and
equipment connected therewith, and all
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alterations, additions and improvements made to or upon the leased premises,
whether completed by LESSEE, LESSOR or others, including but not limited to any
offices, partitions, window blinds, floor coverings (including computer floors),
plumbing and plumbing fixtures, air conditioning equipment and ductwork of any
type, exhaust fans or heaters, water coolers, burglar alarms, telephone wiring,
telephone equipment, air or gas distribution piping, compressors, overhead
cranes, hoists, trolleys or conveyors, counters, shelving or signs attached to
walls or floors, all electrical work, including but not limited to lighting
fixtures of any type, wiring, conduit, EMT, transformers, distribution panels,
bus ducts, raceways, outlets and disconnects, and furnishings or equipment which
have been bolted, welded, nailed, screwed, glued or otherwise attached to any
wall, floor, ceiling, roof, pavement or ground, or which have been directly
wired to any portion of the electrical system or which have been plumbed to the
water supply, drainage or venting systems serving the leased premises. LESSEE
shall deliver the leased premises sanitized from any chemicals or other
contaminants, and broom clean and in the same condition as they were at the
commencement of this 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 by fire or other casualty only
excepted. In the event of LESSEE's failure to remove any of LESSEE's property
from the leased promises upon termination of the lease, LESSOR is hereby
authorized, without liability to LESSEE for loss or damage thereto, and at the
sole risk of LESSEE, to remove and store any such property at LESSEE's expense,
or to retain same under LESSOR's control, or to sell at public or private sale
(without notice), any or all of the property not so removed and to apply the net
proceeds of such sale to the payment of any sum due hereunder, or to destroy
such abandoned property. 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 provision of this
lease shall not affect or render invalid or unenforceable any other 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 only for obligations occurring while lessor, owner, or master lessee of
the premises. (c) Any action or proceeding arising out of the subject matter of
this lease shall be brought by LESSEE within one year after the cause of action
has occurred and only in a court of the Commonwealth of Massachusetts. (d) If
LESSOR is acting under or as agent for any trust or corporation, the obligations
of LESSOR shall be binding upon the trust or corporation, but not upon any
trustee, officer, director, shareholder, or beneficiary of the trust or
corporation individually. (e) If LESSOR is not the owner (OWNER) of the leased
premises, LESSOR represents that said 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 was
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
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premises for LESSEE's intended use. (i) LESSEE agrees that if LESSOR does not
deliver possession of the leased premises as herein provided for any reason,
LESSOR shall not be liable for any damages to LESSEE for such failure, but
LESSOR agrees to use reasonable efforts to deliver possession to LESSEE at the
earliest possible date. A proportionate abatement of rent, excluding the cost of
any amortized improvements to the leased premises, for such time as LESSEE may
be deprived of possession of the leased premises, except where a delay in
delivery is caused in any way by LESSEE, shall be LESSEE's sole remedy. (j)
Neither the submission of this lease form, nor the prospective 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 this lease shall not bind either party in any manner whatsoever until it
has been executed by both parties. (k) LESSEE shall not be entitled to exercise
any option contained herein if LESSEE is at that time in default of any terms or
conditions hereof. (l) Except as otherwise provided herein, LESSOR, OWNER and
LESSEE shall not 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. (m) The headings in this lease are for convenience
only and shall not be considered part of the terms hereof. (n) No endorsement by
LESSEE on any check shall bind LESSOR in any way. (o) LESSOR and LESSEE hereby
waive any and all rights to a jury trial in any proceeding in any way arising
out of this lease.
29. SECURITY AGREEMENT. This Paragraph Does Not Apply.
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, several corporations or a
partnership, LESSEE's obligations are joint or partnership and also 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.
31. AUTOMATIC FIVE-YEAR EXTENSIONS. This lease, including all terms,
conditions, escalations, etc. shall be automatically extended for additional
successive periods of five (5) years each unless LESSOR or LESSEE shall serve
written notice, either party to the other, of either party's desire not to so
extend the lease. The time for serving such written notice shall be not more
than twelve (12) months or less than four (4) months prior to the expiration of
the current lease period. Time is of the essence.
32. ADDITIONAL PROVISIONS. (Continued on attached rider(s) if necessary.)
-9-
- SEE ATTACHED RIDER -
IN WITNESS WHEREOF, LESSOR and LESSEE have hereunto set their hands and common
seals and intend to be legally bound hereby this 24th day of June, 1999.
LESSOR: XXXXXXXX PROPERTIES LLC LESSEE: SEQUENOM, INC.
By: /s/ illegible By: /s/ Xxxxxx Xxxxxx 6/24/99
--------------------------- ---------------------------
Executive Vice President President & CEO
GUARANTY
IN CONSIDERATION of the making of the above lease by Xxxxxxxx Properties LLC
with Sequenom, Inc. at the request of the undersigned and in reliance on this
guaranty, the undersigned (GUARANTOR) hereby personally guarantees the prompt
payment of rent by LESSEE and the performance by LESSEE of all terms,
conditions, covenants and agreements of the lease, any amendments thereto and
any extensions or assignments thereof, and the undersigned promises to pay all
expenses, including reasonable attorney's fees, incurred by LESSOR in exercising
all obligations of LESSEE under the lease or incurred by LESSOR in enforcing
this guaranty. LESSOR's consent to any assignments, subleases, amendments and
extensions by LESSEE or to any compromise or release of LESSEE's liability
hereunder, with or without notice to the undersigned, or LESSOR's failure to
notify the undersigned of any default and/or reinstatement of the lease by
LESSEE, shall not relieve the undersigned from liability as GUARANTOR.
IN WITNESS WHEREOF, the undersigned GUARANTOR has hereunto set his/her/its
hand and common seal intending to be legally bound hereby as of this __ day of
________, ____.
-10-
990341-DJC-3
XXXXXXXX PROPERTIES, LLC
STANDARD FORM
RIDER TO LEASE
The following additional provisions are incorporated into and made a part of the
attached lease:
A. * LESSOR, at LESSOR's cost, shall modify the leased premises according to a
mutually agreed upon plan attached hereto before or about the time LESSEE
takes possession of the leased premises.
B. * LESSOR, if requested to do so by LESSEE, and at LESSEE's sole expense,
agrees to complete certain improvements and alterations necessitated by
LESSEE's use of the leased premises according to a plan to be mutually
agreed upon by both parties. These alterations shall be considered
"nonbuilding standard" for maintenance purposes pursuant to Section 9 of
the lease.
C. * The parties acknowledge and agree that, as of the execution of this
lease, the leased premises have not been demised. Accordingly, upon
completion of the modifications provided for herein, LESSOR shall carefully
measure the entire leased premises, and if the size including common area
does not equal the total number of square feet set forth in the initial
paragraph of this lease, LESSOR shall notify LESSEE in writing of the
actual revised square footage and the corresponding increase or decrease in
rent, based on the same rate per square foot used in this lease.
D. * In the event that LESSOR is unable to obtain a building permit for the
modifications at the leased premises for the purposes set forth in Section
3 above, LESSOR shall have the right, at its sole expense, to appeal any
such decision. If LESSOR declines to prosecute said appeal or if any such
decision is upheld after all applicable appeals have been exhausted, then
LESSEE may cancel this lease by serving LESSOR with 30 days prior written
notice to that effect, and neither party shall have any further obligation
to the other. Cancellation of the lease shall be LESSEE's exclusive remedy
for any failure by LESSOR to obtain a building permit or otherwise in
connection with this paragraph.
E. With reference to Section 25 above, no hazardous materials or hazardous
wastes shall be used, processed, stored, or disposed of in any manner or
form within the leased premises or any extension thereof in violation of
any applicable local, state, or federal law, rule or regulation. In
addition, any and all hazardous materials and hazardous waste shall be
disposed of in containers for off-site disposal, and shall not be disposed
of on-site through the plumbing system or in any other manner. LESSEE
shall be solely responsible for and shall indemnify and hold LESSOR
harmless from any and all liability, damage or personal injury associated
with any use, processing, storage, or disposal of such materials.
F. * As of the termination date of this lease, LESSEE, at LESSEE's sole
expense, shall return the leased premises free from any and all hazardous
materials, hazardous wastes, biological, radiological, chemical or other
contamination or any other materials that are in
any way harmful to anyone, and shall be solely responsible for remedying
any and all damage, removing any and all contamination, and properly
disposing of any hazardous materials, hazardous wastes and contamination.
In addition, LESSEE, at LESSEE's sole expense, shall engage an independent
and accredited industrial hygiene consultant to certify that as of the
termination date of this lease, the entire leased premises and any
extension thereof utilized in any way by LESSEE is free from any
biological, radiological, chemical or other contamination and is in no way
damaged as a result of LESSEE's use of the premises. Said certification
shall also specify that the premises are then fully suitable for
unrestricted, unconditional future use and occupation by others. Time is of
the essence.
G. With respect to any condition existing prior to the commencement of
LESSEE's occupancy under this lease, LESSOR shall 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 of 1980, as amended ("CERCLA"), of any
"hazardous substance" as defined in Section 101 (14) of CERCLA, 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 by LESSEE.
H. During the initial term of this lease, LESSEE shall have the one-time right
of first lease of approximately 1,000 square feet of currently vacant
adjacent space at 000 Xxxxx Xxxx at LESSOR's then current published rental
rate for said space as it becomes available for lease directly from LESSOR,
following its next leasing to a third party, subject to the right of said
third party to extend or otherwise renegotiate its lease. LESSEE shall
have 48 hours from receipt of notice from LESSOR of said availability to
execute LESSOR's then current standard form lease or amendment to lease for
said additional space. If LESSOR fails to notify LESSEE of the
availability of said space and leases said space to others, and if LESSEE
notifies LESSOR of its desire to lease said space and immediately executes
LESSOR's then current standard form lease or amendment to lease for said
space, LESSOR shall then have 60 days to relocate the other party. If
LESSOR fails to relocate the other party within said 60 days and execute
the new lease or amendment to lease with LESSEE, then LESSEE may elect, by
serving LESSOR written notice within 30 days after expiration of the
relocation period, to occupy a similar amount of additional space elsewhere
in the building on a no-charge basis until such time as LESSOR delivers
possession of said space. This shall be LESSEE's exclusive remedy for any
failure by LESSOR to deliver possession of said space or any breach by
LESSOR of the provisions of this paragraph. Time is of the essence.
DIAGRAM
/s/ illegible
-------------------------------
(Signature)
XXXXXXXX PROPERTIES, LLC
STANDARD FORM
AMENDMENT TO LEASE #1
In connection with a lease currently in effect between the parties at 000 X
Xxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxxxxxxx, executed on June 24, 1999 and
terminating July 30, 2002 and in consideration of the mutual benefits to be
derived herefrom, Xxxxxxxx Properties, LLC, LESSOR and Sequenom, Inc. LESSEE
hereby agree to amend said lease as follows:
1. The Common area of the portion of the building that serves the leased
premises is hereby changed from 15 percent to 13.1 percent of the building.
2. The size of the leased premises is hereby decreased from 3,292 square feet
(including 15% common area) to 3,258 square feet (including 13.1% common
area), as a result of the above change in the common area and the
remeasuring of the leased premises as provided in the Rider to Lease,
Paragraph C.
3. LESSOR, at LESSEE's sole expense, shall complete alterations and
improvements within the leased premises in accordance with the mutually
agreed upon plan and Additional Work Authorizations attached hereto.
LESSOR shall amortize the agreed charge of $9,324, without interest, for
said modifications in the additional rent provided below.
This amendment shall not bind either party in any manner until it has been
executed by both parties. All other terms, conditions and covenants of the
present lease shall continue to apply except that* adjusted base rent shall be
increased by $2,688.50 annually, from a total of $49,215.00 to a new annual
total of $51,903.50 or $4,325.29 per month. Annual base rent for purposes of
computing any future escalations thereon shall be $51,903.50. This amendment
shall be effective August 1, 1999 and shall continue through the balance of the
lease and any extensions thereof unless further modified by written
amendment(s).
*effective September 1, 1999
In witness whereof, LESSOR and LESSEE have hereunto set their hands and common
seals this 2nd day of September, 1999.
LESSOR: XXXXXXXX PROPERTIES, LLC LESSEE: SEQUENOM, INC.
By: /s/ ILLEGIBLE By: /s/ ILLEGIBLE
-------------------------------------------- -----------------------------------------
Executive Vice President
ADDITIONAL WORK AUTHORIZATION
ATLANTIC BOSTON CONSTRUCTION, INC.
000 XXXX XXXXXXX XXXX, XXXXXX, XX 00000
781-935-8000--fax 000-000-0000
---------------------------------------------------------------------------------------------------------------
CUSTOMER NAME DATE ORIGINATOR
Sequenom 8/23/99 DJC/MAA
---------------------------------------------------------------------------------------------------------------
STREET CITY STATE ZIP CODE
000 - X Xxxxx Xx., Xxxxx 000 Xxxxxxx XX 00000
---------------------------------------------------------------------------------------------------------------
ATTENTION PHONE FAX
Xxx Xxxxxx
---------------------------------------------------------------------------------------------------------------
PROVIDE LABOR AND MATERIALS TO EXECUTE THE FOLLOWING SCOPE OF WORK:
See attached AWA plan dated 8/5/99
1. Remove existing carpet and install approx. 1520 SF of CPL standard VCT in
customers lab and demonstration area.
PRICE: $4,134.00
Less CPL contribution (50%): $2,067.00
---------
TOTAL PRICE: $2,067.00
. No representation is made as to the suitability of above work for Customer's
use of occupancy. IF DIFFERENT THAN STATED IN LEASE (INITIAL) 9/2/9
. Customer to remove furniture and equipment from the work area.
. Customer acknowledges that the above work or revisions from previously
approved plans may cause a delay beyond any prior scheduled completion date.
. This quote is valid for 30 days from the date of issue. If space is
unoccupied on date of issue, prices may increase after occupancy. Above work
is to be accomplished during normal working hours or during prearranged
overtime at additional expense. Contract price includes sales tax.
. AUTHORIZED IN LEASE TERM (INITIAL) 9/2/9
. Customer acknowledges that the work described herein shall be considered
nonbuilding standard under the terms of the lease and shall be maintained by
Customer following installation, unless otherwise noted.
ACCEPTED BY: /s/ Xxxxxxx X. Xxxx DATE: 9/2/99
--------------------------- -------------
PRINTED NAME: XXXXXXX X. XXXX TITLE: Illegible
-------------------------------- ----------------
-----------------------------------------------------------------------------------------------------------------------------
FOR OFFICE USE ONLY Design/Construction INITIAL Supervisor INITIAL LESSEE Cert of Insurance and Initial
Approval JT Approval SF Endorsement on file SF
-----------------------------------------------------------------------------------------------------------------------------
ADDITIONAL WORK AUTHORIZATION
ATLANTIC BOSTON CONSTRUCTION, INC.
000 XXXX XXXXXXX XXXX, XXXXXX, XX 00000
781-935-8000--fax 000-000-0000
-------------------------------------------------------------------------------------------------------
CUSTOMER NAME DATE ORIGINATOR
Sequenom 8/23/99 DJC/MAA
-------------------------------------------------------------------------------------------------------
STREET CITY STATE ZIP CODE
000 - X Xxxxx Xx., Xxxxx 000 Xxxxxxx XX 00000
-------------------------------------------------------------------------------------------------------
ATTENTION PHONE FAX
Xxx Xxxxxx
-------------------------------------------------------------------------------------------------------
PROVIDE LABOR AND MATERIALS TO EXECUTE THE FOLLOWING SCOPE OF WORK:
See attached AWA plan dated 8/4/99
1. Install nine 8' long 120V, 20A, ivory plugmold strips at 40" a.f.f., with
outlets at 6" oc. Work includes dedicated lines from each strip to existing
electrical panel.
PRICE: $1,917.00
2. Install three 208V, single phase, dedicated electrical outlets NEMA
configuration to be provided by customer prior to commencement of work.
PRICE: $ 516.00
3. Install a 3' x 4' painted plywood phone panel at approved location. Plywood
to be mounted directly atop existing drywall finish.
PRICE: $ 100.00
. No representation is made as to the suitability of above work for
Customer's use of occupancy. IF DIFFERENT THAN STATED IN LEASE (INITIALS)
9/2/99
. Customer to remove furniture and equipment from the work area.
. Customer acknowledges that the above work or revisions from previously
approved plans may cause a delay beyond any prior scheduled completion
date.
. This quote is valid for 30 days from the date of issue. If space is
unoccupied on date of issue, prices may increase after occupancy. Above
work is to be accomplished during normal working hours or during
prearranged overtime at additional expense. Contract price includes sales
tax.
. AUTHORIZED IN LEASE TERM (INITIALS) 9/2/99
. Customer acknowledges that the work described herein shall be considered
nonbuilding standard under the terms of the lease and shall be maintained
by Customer following installation, unless otherwise noted.
ACCEPTED BY: /s/ Xxxxxxx X. Xxxx DATE: 9/2/99
------------------------------ --------------
PRINTED NAME: XXXXXXX X. XXXX TITLE: Illegible
---------------------- --------------
---------------------------------------------------------------------------------------------------------------------------------
FOR OFFICE USE ONLY Design/Construction INITIALS Supervisor INITIALS LESSEE Cert of Insurance and INITIALS
Approval JT Approval SF Endorsement on file SF
---------------------------------------------------------------------------------------------------------------------------------
ADDITIONAL WORK AUTHORIZATION
ATLANTIC BOSTON CONSTRUCTION, INC.
000 XXXX XXXXXXX XXXX, XXXXXX, XX 00000
781-935-8000--fax 000-000-0000
-----------------------------------------------------------------------------------------------------
CUSTOMER NAME DATE ORIGINATOR
Sequenom 8/23/99 DJC/MAA
-----------------------------------------------------------------------------------------------------
STREET CITY STATE ZIP CODE
000 - X Xxxxx Xx., Xxxxx 000 Xxxxxxx XX 00000
-----------------------------------------------------------------------------------------------------
ATTENTION PHONE FAX
Xxx Xxxxxx
-----------------------------------------------------------------------------------------------------
PROVIDE LABOR AND MATERIALS TO EXECUTE THE FOLLOWING SCOPE OF WORK:
See attached AWA plan dated 8/5/99
1. In the Demonstration Area, install a CPL standard 30" sink base cabinet
with a 22" x 25" x 10" deep stainless steel sink, goose neck faucet with
wing blade handle, a 30" postformed countertop and in the adjacent Lab
install a CPL standard composite utility with faucet, work includes:
installation of a backflow preventer at the main water supply, a 10 gallon
electric hot water heater with expansion tank, a15 gallon pH neutralization
tank, separate vent throughout the roof, and all piping required to connect
hot, cold, and waste lines to existing services.
PRICE: $4,080.00
Note:
----
Customer has previously acknowledged that no chemical waste of any kind
will be disposed of in the above mentioned sink drains.
Option
------
Install a wall mounted eye wash system adjacent to sink and cabinet in the
Demonstration Area, work includes: connection to potable cold water supply
system (not non-potable supply at adjacent sink), connection to vent and
waste line at adjacent sink, and patching and painting of adjacent dry wall
partition as necessary.
PRICE: $784.00
. No representation is made as to the suitability of above work for
Customer's use of occupancy. IF DIFFERENT THAN STATED IN LEASE (INITIALS)
9/2/99
. Customer to remove furniture and equipment from the work area.
. Customer acknowledges that the above work or revisions from previously
approved plans may cause a delay beyond any prior scheduled completion
date.
. This quote is valid for 30 days from the date of issue. If space is
unoccupied on date of issue, prices may increase after occupancy. Above
work is to be accomplished during normal working hours or during
prearranged overtime at additional expense. Contract price includes sales
tax.
. AUTHORIZED IN LEASE TERM (INITIALS) 9/2/99
. Customer acknowledges that the work described herein shall be considered
nonbuilding standard under the terms of the lease and shall be maintained
by Customer following installation, unless otherwise noted.
ACCEPTED BY: /s/ Xxxxxxx X. Xxxx DATE: 9/2/99
------------------------------- --------------
PRINTED NAME: XXXXXXX X. XXXX TITLE: Illegible
--------------------- --------------
------------------------------------------------------------------------------------------------------------------------------
FOR OFFICE USE ONLY Design/Construction INITIALS Supervisor INITIALS LESSEE Cert of Insurance and INITIALS
Approval UT Approval SP Endorsement on file SP
------------------------------------------------------------------------------------------------------------------------------
DIAGRAM
DIAGRAM
