SECURITIES AND EXCHANGE
COMMISSION
Washington, DC 20549
FORM 10-Q
(Mark One)
[X] Quarterly report pursuant to section 13 or 15(d) of the
Securities Exchange Act of 1934.
For the quarterly period ended September 30, 1997, or
[ ] Transition report pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934.
For the transition period from _____ to _____
Commission File Number 0-12081
AQUILA BIOPHARMACEUTICALS, INC.
Exact Name of Registrant as Specified in Its Charter)
Delaware 04-3307818
(State or other Jurisdiction of I.R.S. Employer
Incorporation or Organization) Identification No.)
365 Plantation Street, Worcester, MA 01605
(Address of Principal Executive Offices) (Zip Code)
(508)797-5777
(Registrant's Telephone Number, Including Area Code)
- -----------------------------------------------------------------
(Former Name, Former Address and Former Fiscal Year, If Changed
Since Last Report)
Indicate by check mark whether the registrant: (1) has filed all
reports required to be filed by Section 13 or 15(d) of the
Securities Exchange Act of 1934 during the preceding 12 months
(or for such shorter period that the registrant was required to
file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes _X__ No ____.
APPLICABLE ONLY TO ISSUERS INVOLVED IN
BANKRUPTCY PROCEEDINGS DURING THE
PRECEDING FIVE YEARS
Indicate by check mark whether the registrant has filed all
documents and reports required to be filed by Sections 12, 13 or
15(d) of the Securities exchange Act of 1934 subsequent to the
distribution of securities under a plan confirmed by a court.
Yes _X__ No ___
APPLICABLE ONLY TO CORPORATE ISSUERS:
Indicate the number of shares outstanding of each of the issuer's
classes of common stock, as of the latest practicable date.
As of November 5, 1997
Common Stock Outstanding 5,002,504
AQUILA BIOPHARMACEUTICALS, INC.
Form 10-Q, September 30, 1997
INDEX
PART I - FINANCIAL INFORMATION
Item 1. Unaudited Financial Statements Page
Number
Condensed Balance Sheets as of September 30, 1997
and December
31,1996...................................2
Statements of Operations for three and nine month
periods ended September 30, 1997 and
1996..............3
Statements of Cash Flows for nine month
periods ended September 30, 1997 and
1996..............4
Notes to Interim Financial Statements
.................5
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations
PART II - OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K
SIGNATURES
Item 1 - Financial Statements
Aquila Biopharmaceuticals, Inc.
Condensed Balance Sheet
(in thousands) (unaudited)
Assets: 9/30/97 12/31/96
------- --------
Current Assets:
Cash and cash equivalents $ 4,480 $ 9,112
Marketable securities 12,155 8,563
Accounts receivable - trade (less
allowance for doubtful accounts of
$126,000 and $179,000, respectively) 827 1,546
Other receivables 448 820
Inventories 578 451
Prepaid expenses & other current assets 207 779
------- ------
Total Current Assets 18,695 21,271
------- ------
Property, plant, and equipment, Net 483 4,308
Net assets held for sale 3,760 0
Patents and purchased technology, Net 221 296
Investments and other assets 415 437
------ ------
Total Assets $ 23,574 $26,312
====== =======
Liabilities & Shareholders' Equity:
Current Liabilities:
Accounts payable $ 305 $ 944
Accrued royalties 226 643
Other accrued expenses 1,987 2,480
Deferred revenue - current 917 918
Current maturities of long-term debt 125 129
------- -------
Total Current Liabilities 3,560 5,114
------- -------
Deferred Revenue 225 225
Long Term Debt 3,956 4,056
------- -------
Total Liabilities 7,741 9,395
------- -------
Shareholders' Equity:
Preferred stock, authorized:
5,000,000 shares, none issued 0 0
Common stock, par value: $.01 per
share, authorized: 30,500,000
shares, issued: 5,004,000 and
5,000,000 shares at September 30,
1997 and December 31, 1996,
respectively 50 50
Treasury stock at cost: 10,526 shares (47) (47)
Additional paid in capital 127,532 127,514
Accumulated deficit (111,702) (110,600)
------- -------
Total Shareholders' Equity 15,833 16,917
------- -------
Total Liabilities and Shareholders' Equity $ 23,574 $ 26,312
====== ======
The accompanying notes are an integral part of these unaudited
statements.
2
Aquila Biopharmaceuticals, Inc.
Statement of Operations
(in thousands, except per share amounts)
(unaudited)
Three Months Ended Nine Months Ended
September 30, September 30,
1997 1996 1997 1996
Revenue: ----- ----- ----- -----
Product sales $ 347 $ 212 $1,050 $ 713
Research and development 1,863 1,623 4,331 4,456
----- ----- ----- -----
2,210 1,835 5,381 5,169
Cost and expenses:
Cost of sales 267 200 785 815
Research and development 1,333 1,079 3,823 3,842
General & administrative 1,258 1,259 3,579 3,862
----- ----- ----- -----
2,858 2,538 8,187 8,519
Other income, net 547 4,217 1,534 5,249
Income/(loss) from Operations
before reorganization items,
income taxes, and discontinued
operations ----- ----- ----- -----
(101) 3,514 (1,272) 1,899
Reorganization items:
Professional fees 0 (1,224) 0 (1,934)
Interest earned on accumulated
cash resulting from Chapter 11
proceedings 0 181 0 412
----- ----- ----- -----
Total reorganization items 0 (1,043) 0 (1,522)
Provision for income taxes (20) 0 (21) 0
----- ----- ----- -----
Income/(loss) from continuing
operations (121) 2,471 (1,293) 377
Discontinued operations:
Income from operations 0 173 0 1,701
Gain on disposal 0 44 191 4,629
----- ----- ----- -----
Net Income/(Loss) $ (121) $ 2,688 $(1,102) $6,707
===== ===== ===== =====
Income/(Loss) per share:
Continuing operations $ (0.02) $ 0.71 $(0.26) $0.11
Discontinued operations $ ---- $ 0.06 $ 0.04 $1.79
Net income/(loss) $ (0.02) $ 0.77 $(0.22) $1.90
Weighted average number of 5,004 3,503 5,002 3,533
common shares outstanding
The Weighted Average Shares Outstanding has been adjusted to
reflect a 7.6 to 1 stock exchange on October 21, 1996.
The accompanying notes are an integral part of these unaudited
financial statements.
3
Aquila Biopharmaceuticals, Inc.
Statement of Cash Flows
(in thousands)
(unaudited)
For the nine months
ended September 30,
1997 1996
---- ----
Cash Flows From Operating Activities:
Net Income/(Loss) $(1,102) $6,707
Adjustments to reconcile Net Income/(Loss)
to net cash provided by operating activities:
Depreciation and amortization 341 2,998
Provision for doubtful accounts 25 45
Gain on sale of enterics business 0 (4,396)
Loss on disposition and writedown of investments 0 (555)
Receipt of investments 0 (300)
Minority interest 0 2
Changes in assets and liabilities:
Restricted Cash 0 (1,000)
Accounts and other receivables 1,066 (16)
Inventories (127) (200)
Deferred revenue (1) 1,725
Prepaid expenses and other current assets 572 185
Accounts payable and other accrued expenses (1,549) (1,093)
Other noncurrent assets and liabilities 22 41
------ ------
Net cash provided/(used) by
operating activities (753) 4,143
------ ------
Cash Flows From Investing Activities:
Purchases of marketable securities (9,151) 0
Proceeds from maturities of marketable
securities 5,559 216
Issuance of common stock 18 0
Purchases of property, plant, and equipment (201) (297)
Patents & purchased technology 0 (166)
Proceeds from sale of enterics business 0 4,601
Net cash provided/(used) by ------ ------
investing activities (3,775) 4,354
------ ------
Cash Flows From Financing Activities:
Payment of long-term obligations (104) (3)
------ ------
Net cash used by financing activities (104) (3)
Net increase/(decrease)in cash and ------ ------
cash equivalents (4,632) 8,494
Cash and cash equivalents at the beginning
of the year 9,112 6,856
Cash and cash equivalents at the end ------ ----
of the period $ 4,480 $15,350
====== ======
Supplemental disclosures:
Income taxes paid 0 5
Interest paid 313 1
The accompanying notes are an integral part of these unaudited
financial statements.
4
AQUILA BIOPHARMACEUTICALS, INC.
NOTES TO UNAUDITED INTERIM FINANCIAL STATEMENTS
1. Basis of Presentation:
The accompanying interim financial statements are unaudited and
have been prepared on a basis substantially consistent with the
audited financial statements. Certain information and footnote
disclosures normally included in the Company's annual financial
statements have been condensed or omitted pursuant to the
Securities and Exchange Commission's rules and regulations. The
interim financial statements, in the opinion of management,
reflect all
adjustments (including normal recurring accruals) necessary for a
fair presentation of the results for the interim periods.
Certain items have been reclassified to conform to the current
period's presentation.
The results of operations for the interim periods are not
necessarily indicative of the results of operations to be
expected for the fiscal year. These interim financial statements
should be read in conjunction with the audited financial
statements for the year ended December 31, 1996, which are
contained in the Company's Annual Report on Form 10-K for the
year ended December 31, 1996, filed with the Securities and
Exchange Commission.
The year-end balance sheet data was derived from audited
financial statements, but does not include all disclosures
required by generally accepted accounting principles.
2. Inventories:
Inventories consist of the following: (000'S)
9/30/97 12/31/96
------- --------
Finished goods $ 119 $ 260
Work in process 345 150
Raw materials & supplies 114 41
--- ---
$ 578 $ 451
=== ===
3. Discontinued Operations:
In June, 1996, the Company sold the assets of its enterics
diagnostic business to Meridian Diagnostics, Inc. Income from
discontinued enterics operations for the three and nine months
periods ended September 30, 1996, was $0 and $552,000,
respectively. The gain from the sale of the discontinued
enterics operation for the three and nine months ended September
30, 1996 was $44,000 and $4,629,000, respectively.
In October, 1996, the Company sold all of the issued and
outstanding common stock of Cambridge Biotech Corporation
("CBC"), which was principally involved in retroviral diagnostic
operations, to bioMerieux Vitek, Inc. Income from discontinued
retroviral operations for the three and nine months periods ended
September 30, 1996, was $173,000 and $1,149,000, respectively.
The gain from the sale of the discontinued retroviral operations
for the three and nine months ended September 30, 1997 was $0 and
$191,000, respectively.
5
4. Leases
The Company has entered into a new operating lease for its
administrative offices, research laboratories and manufacturing
facilities. The effectiveness of the lease is subject to several
contingencies, including the Landlord's obtaining the financing
for and commencement of construction of the facility. The base
lease period is twelve years and the lease contains renewal
options for two additional five year periods. The lease also
contains escalation clauses with respect to real estate taxes and
operating expenses, and annual fixed rent increases in the fifth
and ninth year of the lease. Obligations under this lease are:
Fiscal Year 1998 $ 374,150
Fiscal Year 1999 748,300
Fiscal Year 2000 748,300
Fiscal Year 2001 748,300
Fiscal Year 2002 774,550
Thereafter 6,216,000
TOTAL $ 9,609,600
The Company expects to occupy this new facility during 1998. The
Company is engaged in discussions to extend its occupancy
agreement for its existing premises until mid-1998, but there can
be no assurances that it will be successful in such discussions.
5. Line of Credit
The Company has obtained a $1 million line of credit with a
commercial bank for equipment financing. The credit line can be
drawn down once per quarter, unless the amount to be advanced
exceeds $200,000, in which case more than one advance can be made
in a quarter. Advances under the line will be repaid quarterly
over a period of three years. Interest accrues at the prime rate
plus 2%. As of September 30, 1997, there were no amounts
outstanding under this line.
6. Net assets held for sale
In July, 1997, the Company decided to sell certain real estate
owned by the Company located in Rockville, Maryland. In
September, 1997, the Company entered into a purchase and sale
agreement with a potential buyer for this real estate, subject to
due diligence on the properties. Accordingly, the real estate has
been reclassified as net assets held for sale on the Company's
balance sheet at September 30, 1997.
Item 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
Revenue
Total revenues for the third quarter of 1997 increased 20%
compared to the third quarter of 1996. Total revenues for the
nine months ended September 30, 1997 increased 4% compared to the
first nine months of 1996.
Product sales for the third quarter of 1997 increased 64%
compared to the third quarter of 1996. Product sales for the nine
months ended September 30, 1997 increased 47% compared to the
first nine months of 1996. The increase in product sales was
primarily due to improved pricing on the Company's products in
general, and to higher unit volumes on certain animal health
products.
6
Research and development revenue for the third quarter of 1997
increased 15% compared to the third quarter of 1996. Research
and development revenue for the nine months ended September 30,
1997 decreased 3% compared to the first nine months of 1996. The
increase in revenues for the third quarter of 1997 is primarily
due to an increase in contract research revenue, partially offset
by a reduction in license revenue. For the nine month period, the
decrease is due primarily to the reduction in license revenue
compared to the first nine months of 1996, which included a non-
recurring license fee, partially offset by increased contract
research revenue.
Costs and Expenses
Cost of product sales for the three months ended September 30,
1997, was 77% of product sales, compared to 94% of product sales,
in the same period in 1996. For the nine months ended September
30, 1997, cost of product sales was 75% of product sales,
compared to 114% of product sales in the first nine months of
1996. The change in cost as a percent of product sales is due
primarily to revised pricing on certain animal health products
that took effect in 1997.
Research and development expenses in the third quarter of 1997,
were 24% higher than research and development expenses in the
third quarter of 1996. This increase was due to increased
expenses under contractual obligations to third parties.
General and administrative expenses decreased 7% for the nine
month period ended September 30, 1997 compared to the same period
in 1996. The decrease was due to lower personnel-related costs
and reduced legal expenses in 1997, partially offset by changes
in the allocation of facility costs.
Other Income, Net
Other income, net was $547,000 for the three months ended
September 30, 1997, compared to $4,217,000 for the same period in
1996, a decrease of 87%. For the nine months ended September 30,
1997, other income, net was $1,534,000, compared to $5,249,000
for the same period in 1996, a 71% decrease. Other income, net
in 1996 included $3,250,000 received as a license fee from a
third party and a $500,000 payment received in exchange for the
Company's interest in a joint venture.
Reorganization Items
The Company incurred Chapter 11 related professional fees of
$1,224,000 and $1,934,000, respectively, for the three and nine
month periods ended September 30, 1996. Interest earned on
accumulated cash resulting from the Chapter 11 proceedings was
$181,000 and $412,000, respectively, for the three and nine month
periods ended September 30, 1996. There were no material
reorganization items during the three or nine month periods ended
September 30, 1997.
Income/(Loss) from continuing operations
The Company incurred a loss from continuing operations of
$121,000, or $.02 per share for the quarter ended September 30,
1997 compared to income from continuing operations of $2,471,000,
or $0.71 per share for the same period in 1996. The decrease in
income from continuing operations was primarily due to a
$3,670,000 decrease in Other income, net offset by a reduction in
reorganization items of $1,043,000.
7
The Company incurred a loss from continuing operations of
$1,293,000, or $.26 per share for the nine months ended September
30, 1997 compared to income from continuing operations of
$377,000, or $.11 per share, for the same period in 1996. The
decrease in income from continuing operations was primarily due
to a $3,715,000 decrease in Other income, net offset by a
reduction in reorganization items of $1,522,000.
Liquidity and Capital Resources
The Company's ability to fund its long term operations is
dependent on several factors, including the Company's ability to
attract funding through additional public and private financing
or by establishing corporate partnerships and collaborative
agreements. There can be no assurance that such additional
funding can be obtained on acceptable terms.
Operating activities used cash of $753,000 during the nine months
ended September 30, 1997, primarily due to the net loss for the
period of $1,102,000, reductions in trade payables attributable
to the cessation of the diagnostic manufacturing operation, and
to the payment of severance and bonus amounts accrued at December
31, 1996. These reductions were offset by the receipt of certain
royalty payments and collections on trade receivables due after
the cessation of the Company's diagnostic operations. Operating
activities provided cash of $4,143,000 during the same period in
1996 primarily due to the net income for the period of $6,707,000
and cash received from third parties for future R & D revenue.
These increases were offset by the gain on the sale of the
Enterics business of $4,396,000.
Investing activities used cash of $3,775,000 in the first nine
months of 1997, due primarily to the net purchase of marketable
securities. In the same period of 1996, $4,354,000 of cash was
provided by investing activities, primarily due to the sale of
the enterics business.
Cash and cash equivalents were $4,480,000 at September 30, 1997,
compared to $9,112,000 at December 31, 1996. Total cash, cash
equivalents and marketable securities were $16,635,000 at
September 30, 1997 compared to $17,675,000 at December 31, 1996.
The decrease is due primarily to the funding of research and
development activities during the year, offset partially by the
receipt of an annual license payment from a corporate partner.
The Company currently occupies an office, research and
manufacturing facility in Worcester, MA under a lease which
expires on December 31, 1997. In September, 1997, the Company
executed a lease agreement to occupy a new facility during 1998.
The effectiveness of the lease is subject to several
contingencies, including the Landlord's obtaining the financing
for and commencement of construction of the facility. The Company
is engaged in discussions to extend its occupancy agreement for
its existing premises until mid-1998, but there can be no
assurances that it will be successful in such discussions.
Given the nature of Aquila's research and manufacturing
activities and the specialized space required to support those
activities, it is expected that the Company will be required to
make capital expenditures to improve the new facility and to
acquire new systems and equipment related to the new facility.
While an accurate estimate cannot be made at this time, it is
possible that these expenditures could be substantial.
8
Aquila's discussions as to management's plans and objectives for
Aquila's business after the date hereof are forward looking
statements which involve a number of risks and uncertainties.
Actual results may differ materially from those projected by
Aquila. The following factors, among others, could effect the
Company's actual results: general economic conditions; risks in
product and technology development; delays and difficulties in
the regulatory approval process; difficulties in obtaining raw
materials and supplies for the Company's products; failure of
corporate partners to commercialize successfully products using
the Company's technology; competition from other companies; the
cost of acquiring additional technology; failure to obtain the
funding necessary for the Company's planned activities; and other
risks identified in this Form 10Q and in Aquila's Securities and
Exchange Commission filings and the exhibits thereto.
9
Part II
Item 6. Exhibits and Reports of Form 8-K
(a) Exhibits
10.1 Lease between the Company and NDNE 9/90 Corporate Center LLC,
dated as of September 19, 1997.
10.2 Employee Retention Agreement between the Company and Alison
Taunton-Rigby, dated as of September 2, 1997, with schedule of
four substantially identical agreements for Gerald A. Beltz,
Stephen J. DiPalma, Deborah B. Grabbe, and Robert B. Kammer.
27. Financial Data Schedule
(b) Reports of Form 8-K
None
- -----------------------------------------------------------------
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the Company duly caused this report to be signed on its behalf by
undersigned thereunto duly authorized.
AQUILA BIOPHARMACEUTICALS, INC.
Date: November 7, 1997
/s/ Alison Taunton-Rigby
_____________________________
Alison Taunton-Rigby
President and Chief Executive Officer
/s/ Stephen J. DiPalma
_____________________________
Stephen J. DiPalma
Vice President Finance,
Chief Financial Officer and Treasurer
EXHIBIT 10.1
LEASE
by and between
NDNE 9/90 Corporate Center LLC
or assignee
as Landlord and
AQUILA BIOPHARMACEUTICALS, INC.,
as Tenant
Dated as of September 19, 1997
with an effective date as of the
"
Escrow Release Date"
(as said term is defined in the Lease)<PAGE>
TABLE OF CONTENTS
SECTION 1 - Reference Data
1
Section 1.1 Reference Information .................
Section 1.2 Exhibits ..............................
SECTION 2 - Premises and Term 7
Section 2.1 Premises ..............................
Section 2.2 Term ..................................
Section 2.3 Appurtenant Rights and Reservations....
SECTION 3 - Commencement Date; Improvements
8
Section 3.1 Commencement Date .....................
Section 3.2 Construction of Building ..............
Section 3.3 Tenant Improvements; Tenant Plans......
and Specifications.....................
Section 3.4 Tenant Work ...........................
Section 3.5 General Provisions Applicable to.......
Tenant Work and Landlord Work.........
Section 3.6 Performance of Tenant's Work...........
Section 3.7 Delays.................................
Section 3.8 General Provisions Applicable to ......
Construction..........................
Section 3.9 Construction Representations...........
Section 3.10 Changes in Building or Lot.............
SECTION 4 - Rent 16
Section 4.1 The Annual Rent .......................
SECTION 5 - Operating Cost Escalation
16
Section 5.1 Operating Cost Escalation .............
Section 5.2 Estimated Operating Cost...............
Escalation Payments ...................
SECTION 6 - Real Estate Tax Escalation
18
Section 6.1 Real Estate Tax Escalation ............
Section 6.2 Estimated Real Estate Tax Escalation...
Payments ..............................
Section 6.3 Assessment of Property ................
SECTION 7 - Insurance
19
Section 7.1 Tenant's Insurance ....................
Section 7.2 Requirements Applicable to Insurance...
Policies........................... ..
Section 7.3 Waiver of Subrogation .................
SECTION 8 - Landlord's Covenants
21
Section 8.1 Quiet Enjoyment .......................
Section 8.2 Maintenance and Repair ................
Section 8.3 Electricity, Water and Gas..............
Section 8.4 HVAC.
..................................
Section 8.5 Cleaning ...............................
Section 8.6 Interruptions ..........................
Section 8.7 Representations.........................
Section 8.8 Estoppel Certificates..................<PAGE>
SECTION 9 - Tenant's Covenants
24
Section 9.1 Use ...................................
Section 9.2 Repair and Maintenance ...............
Section 9.3 Compliance with Law and Insurance......
Requirements ..........................
Section 9.4 Tenant's Alterations...................
Section 9.5 Indemnity .............................
Section 9.6 Landlord's Right to Enter .............
Section 9.7 Personal Property at Tenant's Risk ....
Section 9.8 Yield Up ..............................
Section 9.9 Estoppel Certificate ..................
Section 9.10 Landlord's Expenses Re Consents .......
Section 9.11 Rules and Regulations .................
Section 9.12 Holding Over ..........................
Section 9.13 Assignment and Subletting .............
Section 9.14 Overloading and Nuisance ..............
SECTION 10 - Casualty or Taking
29
Section 10.1 Termination ...........................
Section 10.2 Restoration ...........................
Section 10.3 Award .................................
SECTION 11 - Default
30
Section 11.1 Events of Default .....................
Section 11.2 Remedies ..............................
Section 11.3 Remedies Cumulative ...................
Section 11.4 Landlord's Right to Cure Defaults .....
Section 11.5 Effect of Waivers of Default ..........
Section 11.6 No Accord and Satisfaction ............
Section 11.7 Interest on Overdue Sums ..............
Section 11.8 Costs and Expenses ...................
SECTION 12 - Mortgages 32
Section 12.1 Rights of Mortgage Holders ............
Section 12.2 Lease Subordinate......................
SECTION 13 - Miscellaneous Provisions
34
Section 13.1 Notices from One Party to the Other ...
Section 13.2 Lease Not to be Recorded;..............
Notice of Lease .......................
Section 13.3 Bind and Inure; Limitation of..........
Landlord's Liability ..................
Section 13.4 Acts of God ...........................
Section 13.5 Landlord's Default ....................
Section 13.6 Brokerage .............................
Section 13.7 Miscellaneous .........................
Section 13.8 Security Deposit ......................
Section 13.9 Park Common Expenses...................
Section 13.10 Leasehold Parking Area.................
Section 13.11 Hazardous Materials....................
Section 13.12 Landlord's Holdover Contribution.......<PAGE>
LEASE
SECTION 1
Reference Data
Section 1.1. Reference Information. Reference in this Lease to
any of the following shall have the meaning set forth below:
Date of this Lease: As of September 19, 1997 with an
effective date as of the "Escrow Release Date" (as said term is
defined in the Lease)
Premises: That portion (shown as outlined on Exhibit A
attached hereto) of the Building on the Lot
known as Lot 8A and to be numbered 175
Crossing Boulevard in Framingham,
Massachusetts, consisting of approximately
35,000 rentable square feet on the first,
second and third floors of the Building.
Landlord: NDNE 9/90 Corporate Center LLC or
assignee
Address of Landlord: c/o National Development of New England
2310 Washington Street
Newton Lower Falls, Massachusetts 02162
Tenant: Aquila Biopharmaceuticals, Inc.
Address of Tenant: 365 Plantation Street
Worcester, Massachusetts 01605
Landlord's Construction Representative: Mark L. Paris
Tenant's Construction Representative: Thomas H. Kelly
Additional Rent: Any sum or payment designated under this
Lease as constituting "Additional Rent" including, without
limitation, payments by Tenant on account of (i) Operating Cost
Escalation under Section 5, (ii) Real Estate Tax Escalation
under Section 6 and (iii) Park Common Expenses under Section
13.9.
Affiliate: Any corporation or business entity controlled by,
controlling or under common control with Tenant. For this
purpose, "control" shall mean direct or indirect beneficial
ownership of 50% or more of the voting stock of, or a 50% or
greater interest in the income of such corporation or other
business entity or such other relationship as in fact
constitutes actual control.
Annual Base Operating Costs: $ 495,600.00 ($4.13 x Total
Number of Rentable Square Feet in the Building) (which excludes
any costs and expenses associated with cleaning services in the
Premises which shall be provided by Tenant at Tenant's sole
cost and expense). <PAGE>
Annual Base Real Estate Taxes: $ 300,000.00 ($2.50 x Total
Number of Rentable Square Feet in the Building)
Annual Fixed Rent (includes Annual Base Operating Costs and
Annual Base Real Estate Taxes
Lease Years 1 - 4 inclusive: $748,300.00 per annum
Lease Years 5 - 8 inclusive: $800,800.00 per annum
Lease Years 9 - 12 inclusive: $853,300.00 per annum
As used above, the term "Year" or "Lease Year" shall mean the
one year period ending on the first anniversary of the Term
Commencement Date and each period of like duration thereafter.
Annual Rent: Annual Fixed Rent, Additional Rent and any other
charge payable in accordance with the terms and provisions of
this Lease.
Anticipated Term Commencement Date: July 1, 1998.
Base Building: The building erected or to be erected on the
Lot by Landlord in accordance with Exhibit D attached hereto at
such time as Landlord substantially completes "Landlord's
Building Construction Work", as defined in Section 3.2.
Broker: Fallon, Hines & O'Connor, Inc.
Building: The building erected or to be erected on the Lot by
Landlord and all alterations and additions thereto and
replacements thereof as described in Exhibit D.
Business Day: All days except Sundays and legal holidays.
Business Hours: 7:00 a.m. to 6:00 p.m. on all Business Days
except Saturdays and Sundays from 8:00 a.m. to 1:00 p.m.
Commencement Date: As defined in Section 3.1.
Enclosed Building: When the building has reached a state of
construction such that it is enclosed (sufficient to prevent
water damage from the weather) and has temporary electrical
power so as to provide Tenant with access to commence Tenant's
Work on Tenant's Access Date.
Escrow Agreement: That certain Escrow Agreement dated as of
even date herewith by and among Landlord, Tenant and Chicago
Title Insurance Company.
Escrow Release Date: That certain date on which all of the
"Release Conditions" (as said term is defined in the Escrow
Agreement) are completely satisfied and the Lease is released
from escrow in accordance with the Escrow Agreement.
Force Majeure: Collectively and individually, strike or other
labor trouble, fire or other casualty, governmental preemption
of priorities or other controls in connection with a national
or other public emergency or shortages of, or inability to
obtain, fuel, supplies or labor resulting therefrom, or acts of
God, or any other cause, whether similar or dissimilar, beyond
Landlord's reasonable control. Force Majeure does not include
those things that Landlord can cure by the payment of money.
Force Majeure Date: The last day of the period of time
commencing on the Outside Date and terminating at the end of
the Force Majeure Period.
Force Majeure Extension: The aggregate period of time not to
exceed sixty (60) days attributable to delays caused by Force
Majeure which shall only be applicable to Landlord's Holdover
Contribution in Section 13.12 of this Lease.
Force Majeure Period: The aggregate period of time
attributable to delays caused by Force Majeure, but in no event
to exceed in the aggregate six (6) months.
Ground Lease: The Indenture of Lease dated as of August 15,
1980, between the Inhabitants of The Town of Framingham (the
"Town"), as landlord, and The First National Bank of Boston
((the "Bank of Boston"), as tenant, notice of which is recorded
with the Middlesex South District Registry of Deeds (the
"Registry") in Book 14036, Page 282 (the "Original Ground
Lease"). The interest of the Bank of Boston as tenant under
the Original Ground Lease was assigned to 9/90 Crossing
Associates Limited Partnership ("9/90") pursuant to that
certain Lease Assignment dated as of July 29, 1987, and
recorded with the Registry in Book 18428, Page 050. The
interest of "9/90" as tenant under the Original Ground Lease
was further assigned by "9/90" to Rose Holding, Inc. ("Rose")
pursuant to that certain Lease Assignment dated as of June 10,
1994, recorded with the Registry in Book 24620, Page 48. The
Original Ground Lease was amended by Amendment to Lease dated
the ______ day of August, 1996 by and between the Town and
Rose. All references herein to the Original Ground Lease shall
mean the Original Ground Lease as so assigned and amended. The
interest of Rose as tenant under the Ground Lease and under the
Original Ground Lease insofar as it relates to Lot B-1 was
assigned to NDNE 9/90 Crossing Limited Liability Company (the
"LLC")by Assignment and Assumption of Lease and Collateral
Agreement with respect to a Portion of the Leasehold Premises
dated September 30, 1996 from Rose to the LLC (the "First Rose
Assignment"). The interest of Rose as tenant under the Ground
Lease and under the Original Ground Lease insofar as it relates
to the Leasehold Parking Area will be assigned to the Landlord
hereunder by Assignment and Assumption of Leasehold Interest
with respect to a Portion of the Leasehold Premises from Rose
to Landlord (the "Second Rose Assignment"). The Original Ground
Lease was affected by that certain Consent to Assignment,
Estoppel Certificate and Agreement of Landlord Respecting
Ground Lease and Landfill Agreement dated October 7, 1996 and
recorded in the Registry in Book 26738, Page 303. All
references in this Lease to the Ground Lease shall mean the
Original Ground Lease, as amended from time to time, as
assigned to the LLC by the First Rose Assignment, as assigned
to Landlord by the Second Rose Assignment and any future
amendments and any future assignments and, for purposes hereof,
the premises thereunder shall be deemed to include only the
Leasehold Parking Area.
Landfill Lot: The lot or parcel of land on which the Leasehold
Parking Area is located as more particularly set forth in
Exhibit I attached hereto.
Landlord's Holdover Contribution: The difference between the
monthly base rent Tenant will be paying under "Tenant's
Existing Lease" (as hereinafter defined) on the Anticipated
Term Commencement Date and (ii) the monthly rent that Tenant
would be paying under this Lease based on an annual base rent
of $14.75 per square foot multiplied by the Premises' Square
Footage; provided, however, in no event shall the Landlord's
Holdover Contribution exceed $42,500.00 per month.
Leasehold Parking Area: The areas designated as the Leasehold
Parking Area on Exhibit C attached hereto and any alteration or
replacement (with any such replacement being in close proximity
to the Building) thereof designated by Landlord in writing to
Tenant.
Lot or Lots: The lot or parcel of land on which the Building
is or will be located as more particularly set forth in Exhibit
B attached hereto.
Lot's Allocable Share: As defined in Section 13.9.
Measurement Method: The Modified New York BOMA Measurement
Method 1980, Reaffirmed 1989.
Outside Date: The date which is twelve (12) months from the
date that the Town of Framingham issues a permit for
construction of the Building, including a foundation permit.
Park: The term "Park" shall mean the land described in
Exhibits A-1 and A-2 of the Park Covenants together with other
land hereafter added thereto under the Park Covenants and
together with the buildings, structures and other improvements
as may, from time to time, be constructed thereon, and all of
which are referred to in the Park Covenants as "9/90 Crossing".
Park Common Expenses: As defined in Section 13.9.
Park Common Property: As defined in Section 13.9.
Park Covenants: The Covenants, Restrictions, Development
Standards and Easements, attached hereto as Exhibit L together
with any amendments thereto as are permitted thereunder.
Permitted Uses: General Office, Research and Development and
Manufacturing.
Premises' Square Footage: Approximately 35,000 rentable square
feet (to be confirmed by Landlord and Tenant) as determined by
the Measurement Method, except as follows: (i) measurements
will be taken to the inside face of glass on exterior walls,
even if the glass is not the dominant portion of the exterior
wall, (ii) measurements to common areas, halls, etc. will be to
the center line of the partition, (iii) common areas such as
the first floor lobby, elevator lobbies, cafeteria, locker
room/shower facilities, common corridors, etc. will be included
in rentable area, and (iv) any vertical penetrations dedicated
solely to Tenant's use (i.e. in excess of vertical penetrations
required to service a standard office building) shall be
included in usable areas provided, however, any vertical
penetrations located on the upper two floors of the Building
and related to the Premises shall not be included in the
calculation of rentable square footage. After Tenant delivers
to Landlord the Tenant's Plans and Specifications, Landlord and
Tenant shall remeasure the Premises. If the Premises' Square
Footage increases or decreases based upon the measurement
referred to in the preceding sentence, then Landlord and Tenant
shall enter into an amendment to this Lease for the purpose of
restating the rentable square feet of the Premises, the Annual
Fixed Rent, the Premises' Square Footage, the Tenant's
Proportionate Share and attaching Exhibit A - Plan of Premises
and Exhibit J - Plan of First Offer Space.
Property: The Building (including the Premises), the Lot and
the Leasehold Parking Area.
Public Liability Insurance Limit:
Bodily Injury Combined single limit of
and Property Damage $2,000,000, or greater amount as
reasonably required by Landlord
from time to time.
Reciprocal Easement Agreement: As defined in Section 5.1.
Rentable Square Feet in the Building: Approximately 120,000
rentable square feet as determined by using the Measurement
Method, except as follows: (i) measurements will be taken to
the inside face of glass on exterior walls, even if the glass
is not the dominant portion of the exterior walls, (ii)
measurements to common areas, halls, etc. will be to the center
line of the partition and (iii) common areas such as the first
floor lobby, elevator lobbies, cafeteria, locker room/shower
facilities, common corridors, etc. will be included in rentable
area.
Security Deposit: $750,000.00 (subject to the terms and
provisions of Section 13.8 hereof).
Tenant's Access Date: A date which is the later of (i) March
1, 1998 or (ii) the date on which Landlord allows Tenant to
access the Enclosed Building for purposes of commencing
Tenant's Work.
Tenant's Existing Lease: A lease between Cambridge Bioscience
Corp. and Worcester Business Development Corporation dated
January 1, 1987, as amended.
Tenant's Chemicals: The list of chemicals more particularly
identified as Tenant's Chemicals in Exhibit O attached hereto,
as the same may be modified, amended and updated from time to
time.
Tenant's Plan Delivery Date: A date which is the later of (a)
thirty (30) days after the date of this Lease or (b) the date
on which Tenant delivers to Landlord the Tenant's Plans and
Specifications.
Tenant's Proportionate Share: Twenty Nine and Seventeen
Hundredths (29.17%) Percent.
Tenant's Removable Property: All articles of personal property
and all business fixtures, machinery, equipment and furniture
owned or installed by Tenant and more particularly described as
Tenant's<PAGE>
Removable Property in Exhibit H attached hereto shall remain
the property of Tenant and may be removed by Tenant at any time
prior to the expiration of this Lease provided that Tenant, at
its sole cost and expense, shall repair any damage to the
Building caused by such removal.
Tenant's Subleasing Profit: The first $5.00 per square foot of
any rent, income or profit derived from any sublease of any
portion of the Premises subleased by Tenant in accordance with
the provisions of Section 9.13 of this Lease in excess of the
Annual Fixed Rent ("Tenant's Base Subleasing Profit") plus
fifty (50%) percent of any rent, income or profit derived from
any such sublease in excess of Tenant's Base Subleasing Profit.
Tenant's Work: As defined in Section 3.4.
Title Exceptions: The matters set forth on Exhibit M attached
hereto and any other rights, easements, encumbrances (excluding
any mortgage with the exception of any mortgage contemplated in
Section 12 of this Lease provided that Tenant receives a non-
disturbance agreement in accordance with Section 12.2 of this
Lease) and reservations which shall not materially interfere
with Tenant's rights under this Lease.
Yield Up Equipment: All of the equipment installed by
Tenant and more particularly described as Yield Up Equipment in
Exhibit N attached hereto shall remain the property of Landlord
at the expiration of the Term or earlier termination of this
Lease.
Section 1.2. Exhibits. The following Exhibits are attached to
and incorporated in this Lease:
Exhibit A: Plan of Premises
Exhibit B: Lot
Exhibit C: Leasehold Parking Area
Exhibit D: Building Construction Work
Exhibit E: Tenant's Plans and Specifications
Exhibit F: Rules and Regulations
Exhibit G: Option to Extend, Right of First Offer
Exhibit H: Tenant's Removable Property
Exhibit I: Landfill Lot
Exhibit J: Plan of First Offer Space
Exhibit K: Cleaning Specifications
Exhibit L: Park Covenants (Reciprocal Easement
Agreement)
Exhibit M: Title Exceptions
Exhibit N: Yield Up Equipment
Exhibit O: Tenant's Chemicals<PAGE>
SECTION 2
Premises and Term
Section 2.1. Premises. Landlord hereby leases and demises
the Premises to Tenant and Tenant hereby leases the Premises
from Landlord subject to the Title Exceptions and subject to
the terms and provisions of this Lease.
Section 2.2. Term. TO HAVE AND TO HOLD for a term
beginning on the Commencement Date and ending on the close of
the day immediately preceding the twelfth anniversary of the
Commencement Date (the "Term") unless sooner terminated as
hereinafter provided.
Section 2.3. Appurtenant Rights and Reservations.
(a) Tenant shall have, as appurtenant to the Premises,
the non-exclusive right to use, and permit its invitees to use
in common with others, public or common lobbies, hallways,
stairways, elevators and common walkways necessary for access
to the Building, the common toilets, corridors and elevator
lobby of such floor; but such rights shall always be subject to
the rules and regulations from time to time established by
Landlord pursuant to this Lease and to the right of Landlord to
reasonably designate and change from time to time areas and
facilities so to be used provided such changes do not
materially affect Tenant's access to or use of the Premises.
Tenant and its employees shall also have the non-exclusive
right to use, in common with others entitled thereto, such
other common areas and facilities in or appurtenant to the
Building as Landlord may from time to time designate and
provide. Subject to the Title Exceptions and subject to the
terms and provisions of this Lease, Landlord shall provide
Tenant with the non-exclusive right to use, in common with
others entitled thereto, that certain number of parking spaces
on the Leasehold Parking Area equal to four (4) spaces per each
1,000 square feet of the Premises' Square Footage.
(b) Excepted and excluded from the Premises are
exterior faces of exterior walls, the common stairways and
stairwells, elevators and elevator shafts, fan rooms,
mechanical, freight elevator vestibules and pipes, ducts,
conduits, wires and appurtenant fixtures serving exclusively or
in common with other parts of the Building, but included in the
Premises are all entry doors to the Premises and all special
installations of Tenant, such as interior stairs, special flues
and special air conditioning facilities. Landlord reserves the
right from time to time, without unreasonable interference with
Tenant's use: (a) to install, use, maintain, repair, replace
and relocate for service to the Premises and other parts of the
Building, or either, pipes, ducts, conduits, shafts, wires and
appurtenant fixtures, wherever located in the Premises or
Building, and (b) to alter or relocate any other common
facility, provided that substitutions are substantially
equivalent or better and (c) to maintain, repair, alter and
replace (with any such replacement being in close proximity to
the Building) the Leasehold Parking Area and the parking spaces
located thereon. Landlord reserves the exclusive use of all
fan rooms, electric and telephone closets, janitor closets,
freight elevator vestibules, pipes, ducts, conduits, wires and
appurtenant fixtures located within the Premises which serve
exclusively or in common other parts of the Building.
(c) Notwithstanding anything to the contrary contained
in this Lease, the Premises shall be measured using the
Measurement Method, except as follows: (i) measurements will
be taken to the inside face of glass on exterior walls, even if
the glass is not the dominant portion of the exterior wall,
(ii) measurements to common areas, halls, etc. will be to the
center line of the partition, (iii) common areas such as the
first floor lobby, elevator lobbies, cafeteria, locker room/
shower facilities, common corridors, etc. will be included in
rentable area, and (iv) any vertical penetrations dedicated
solely to Tenant's use (i.e. in excess of vertical penetrations
required to service a standard office building) shall be
included in usable areas provided, however, any vertical
penetrations located on the upper two floors of the Building
and related to the Premises shall not be included in the
calculation of rentable square footage.
SECTION 3
Commencement Date; Improvements
Section 3.1 Commencement Date. The Commencement Date
shall be that date on which (a) the Base Building is
substantially complete provided that the Town of Framingham has
issued a Temporary Certificate of Occupancy for the Base
Building and Landlord has completed each item of Landlord's
Building Construction Work in accordance with Exhibit D
(irrespective of whether Tenant has completed Tenant's Work or
the Town of Framingham has issued a Certificate of Occupancy
relating to the Premises) and (b) one hundred twenty (120) days
have elapsed since Tenant's Access Date (unless Tenant
commences occupancy of any portion of the Premises for the
Permitted Uses prior to the expiration of said one hundred
twenty (120) day period, then the date that Tenant commences
occupancy shall be the applicable date under this clause (b)).
If Tenant commences occupancy of any portion of the Premises
prior to the expiration of the one hundred and twenty (120) day
period referred to in the preceding sentence, then Tenant shall
commence paying Annual Rent for that portion of the Premises in
which Tenant takes occupancy; provided, however, upon the
expiration of said one hundred and twenty (120) day period,
Tenant shall commence paying Annual Rent for the entire
Premises. Each of the parties hereto agrees to, upon demand of
the other, execute a declaration expressing the Commencement
Date as soon as the Commencement Date has been determined.
Section 3.2 Construction of Building.
(a) Landlord, at its expense, shall diligently
construct the Building substantially in accordance with Exhibit
D (as the same may be amended in connection with the permit
approval process for the Premises provided that no such
amendment affecting the Premises shall be made without the
approval of Tenant, which approval shall not be unreasonably
withheld or delayed) (the "Landlord's Building Construction
Work") and all laws, codes, ordinances and other applicable
governmental requirements. Landlord's Building Construction
Work shall be done in a good and workmanlike manner using first
quality materials and shall be accomplished in accordance with
the plans and specifications set forth in Exhibit D. Tenant
shall respond promptly to all communications from Landlord and
shall cooperate with Landlord throughout the construction
process. Notwithstanding anything contained in Exhibit D to the
contrary, in no event shall Landlord be obligated to perform
(or pay for the cost of) the moving or installation of any of
Tenant's equipment. Tenant shall pay to Landlord, within ten
(10) days of billing therefor, any costs of construction
resulting from changes in Exhibit D requested in writing by
Tenant, it being understood that such costs shall be equal to
the aggregate of (a) the "Cost of the Work", as defined in
American Institute of Architects Document A111 (1987 Edition),
and (b) Landlord's contractor's overhead and profit in the
total amount equal to eight percent (8%) of such cost.
(b) Landlord represents, but does not warrant, that on
the Commencement Date, the Building will be constructed in a
good and workmanlike manner free from material defects and in
compliance with all federal, state and local laws, ordinances,
rules, regulations, orders and permits, including zoning and
subdivision relating to the Building and the Premises and with
any restriction, covenant or agreement contained in the Title
Exceptions. To the best of Landlord's knowledge, no provision
contained in any Title Exception interferes with the existing
or contemplated use of the Premises.
(c) Landlord shall procure all necessary permits before
undertaking Landlord's Building Construction Work; do all of
such work in a good and workmanlike manner, employing materials
of first quality and complying with all governmental
requirements. Landlord shall cause contractors employed by
Landlord to carry Workmen's Compensation Insurance in
accordance with statutory requirements and Comprehensive Public
Liability Insurance covering such contractors on or about the
Building.
Section 3.3 Tenant Improvements; Tenant's Plans and
Specifications.
(a) All work, construction and improvements to be
performed in or for the Premises in order to prepare same for
use and occupancy by Tenant set forth in Exhibit E attached
hereto shall be provided and installed by Tenant at Tenant's
sole cost and expense. Prior to commencement of any work by
Tenant, Tenant shall deliver to Landlord on the Tenant's Plan
Delivery Date a detailed floor plan layout together with
construction drawings, working drawings and written
instructions and specifications (herein called "Tenant's Plans
and Specifications") in accordance with and containing at least
the information detailed in Exhibit E and reflecting the
alterations, work partitions and improvements desired to be
performed and installed by Tenant in the Premises. Landlord
agrees to cooperate with Tenant in the production of those
portions of Tenant's Plans and Specifications constituting the
working drawings and written instructions. Landlord shall not
be responsible for any cost in connection with preparing
Tenant's Plans and Specifications.
Section 3.4 Tenant's Work.
(a) Landlord's approval, which approval shall not be
unreasonably withheld or delayed, of Tenant's Plans and
Specifications shall, in no event, be deemed to create any
obligation on the part of Landlord to do any work or make any
installations in or about the Premises or to authorize Tenant
to make any further additions, improvements or alterations to
the Premises.
(b) Tenant shall perform, at its sole cost and expense,
all of the work (the "Tenant's Work") shown on Tenant's Plans
and Specifications substantially in accordance with Tenant's
Plans and Specifications. Any changes to Tenant's Plans and
Specifications (or any variations in Tenant's Work from the
Tenant's Plans and Specifications) shall be subject to the
approval of Landlord which approval will not be unreasonably
withheld or delayed. Any Tenant Plan provided to Landlord for
approval under the provisions of this Lease shall be deemed
approved unless Landlord shall, within ten (10) days of the
submission of said plan, notify Tenant of the disapproval of
such plan and the reason(s) for such disapproval. This
Subsection (b) and Section 9.4 shall apply before and during
the Term of this Lease. All of the Tenant's Work and all
alterations, additions and installation of furnishings shall be
coordinated with any work being performed by Landlord in the
Building and in such manner as to maintain harmonious labor
relations and not damage the Property or interfere with
Building construction or operation and shall be performed by
Tenant's general contractor, which contractor and all
subcontractors shall be named on a written list submitted to
Landlord and shall be subject to the written approval of
Landlord, which approval shall not be unreasonably withheld or
delayed and any such approval shall be deemed given unless
Landlord shall within five (5) Business Days of Landlord's
receipt of Tenant's submission of the name of such contractor
or subcontractor notify Tenant of Landlord's disapproval of
such party and the reasons for such disapproval. Tenant shall
have the right to use any contractor or subcontractor appearing
on the list submitted to and approved by Landlord. Tenant
acknowledges and agrees that Cranshaw Construction shall have
the right to bid on all of Tenant's Work, including, without
limitation, the installation of the roof top HVAC system.
Tenant hereby assumes all responsibility in connection with
Tenant's Work. Tenant shall be responsible for any labor
difficulties or delays in Tenant's Work and the Commencement
Date will not be delayed as a result of delays in work.
Tenant, before its work is started, shall: secure all
licenses, approvals and permits necessary therefor and deliver
copies thereof to Landlord; deliver to Landlord a statement of
the names of all its contractors and subcontractors and the
estimated cost of all labor and material to be furnished by
them; and cause each contractor and subcontractor to carry
workmen's compensation insurance in statutory amounts covering
all the contractor's and subcontractor's employees and
comprehensive public liability insurance and property damage
insurance with such limits as Landlord may reasonably require
but in no event less than a $2,000,000.00 combined single limit
(all such insurance to be written in companies approved by
Landlord, which approval will not be unreasonably withheld or
delayed, and insuring Landlord and Tenant as well as the
contractors), and to deliver to Landlord certificates of all
such insurance. Tenant agrees to pay promptly when due the
entire cost of any work done on the Premises by Tenant, its
agents, employees, or independent contractors, and not to cause
or permit any liens for labor or materials performed or
furnished in connection therewith to attach to the Property and
immediately to discharge any such liens which may so attach
and, at the request of Landlord to deliver to Landlord security
satisfactory to Landlord against liens arising out of the
furnishing of such labor and material, including, without
limitation, evidence of bonding over said liens with
performance, payment and lien bonds in favor of Landlord and
Tenant. Upon completion of any work done on the Premises by
Tenant, its agents, employees, or independent contractors,
Tenant shall promptly deliver to Landlord original lien
releases and waivers executed by each contractor,
subcontractor, supplier, materialmen, architect, engineer or
other party which furnished labor, materials or other services
in connection with such work and pursuant to which all liens,
claims and other rights of such party with respect to labor,
material or services furnished in connection with such work are
unconditionally released and waived.
(c) Prior to commencing occupancy, Tenant shall, at its
sole expense, procure a Certificate of Occupancy for its
Premises and any other permit or approval required by the Town
of Framingham or the Commonwealth of Massachusetts for its use
and occupancy of the Premises and shall deliver copies thereof
to Landlord. Entry by Tenant or its agents or contractors for
the purpose of performing Tenant's Work and/or decorations and/
or for installation of equipment and furnishings in the
Premises shall be permitted by Landlord during normal business
hours on Business Days. Commencing on Tenant's Access Date,
Tenant shall have such access as is reasonably necessary to
allow Tenant to perform Tenant's Work. Tenant, from and after
the date of such entry, shall be bound prior to the
Commencement Date by the provisions contained in this Lease
(except the obligation to pay Annual Rent, Operating Cost
Escalations and Real Estate Tax Escalations) notwithstanding
that such entry and Tenant's Work will occur prior to the
Commencement Date of this Lease. In no event shall the
Commencement Date of this Lease be delayed by reason of
Tenant's failure to complete the work described in Tenant's
Plans and Specifications prior to the Commencement Date as it
is defined in Section 3.1 hereof unless such failure is the
result of Landlord's failure to fulfill its obligations
hereunder. All deliveries of equipment, furnishings, fixtures
and construction materials and equipment (collectively, "Work
Materials") to (and all removals of such Work Materials from)
the Premises in connection with Tenant's Work shall be
performed in a manner so as to minimize harm to the Building
and interference with other tenants of the Property. Tenant
shall take such protective measures as Landlord may require in
order to protect the Building or any part thereof from injury
or damage due to, or in connection with, Tenant's Work. Tenant
shall not store any materials or equipment on any sidewalks or
streets adjacent to the Building caused by Tenant's Work.
Tenant shall remove all debris, trash and construction rubbish
from the Premises and the Building. Tenant shall keep all
areas of the Building and all sidewalk and street areas
adjacent to the Building free of trash and debris from Tenant's
Work and shall, upon completion of its work, clean all areas of
the Building, sidewalks and streets affected thereby. Tenant
shall not damage, deface or injure the Building or any part
thereof in connection with the Tenant's Work and shall promptly
reimburse Landlord for the cost of repairing and/or replacing
any damage, defacement or injury to the Building caused by
Tenant, its employees, workmen, contractors, subcontractors,
materialmen and all other parties who are involved in
performing all or any part of Tenant's Work. Tenant shall
comply with all laws, orders, rules, regulations and demands of
the Town of Framingham in loading and unloading and delivering
and removing materials relating to Tenant's Work and Tenant's
Removable Property to and from the Premises.<PAGE>
Section 3.5 General Provisions Applicable To Tenant Work
and Landlord Work.
All construction work required or permitted by this Lease
to be performed by either Landlord or Tenant shall be done in a
good and workmanlike manner and in compliance with all
applicable provisions of this Lease and all laws and lawful
ordinances, regulations and orders of governmental authority
and insurers of the Property, including, without limitation,
the requirements of the Americans with Disabilities Act of
1990, as amended.
Section 3.6 Performance Of Tenant's Work.
(a) Landlord shall not unreasonably withhold its
consent to the general contractor selected by Tenant and
approved by Landlord ("Tenant's G.C.") performing Tenant's Work
solely as an accommodation to Tenant. Tenant hereby
acknowledges that Landlord is extremely concerned that the
Tenant's Work be performed in a manner such as to minimize, to
the maximum extent possible, interference with ongoing work in
the Building being performed by Landlord, the use and enjoyment
of other space in the Building by other tenants and the
continued and uninterrupted operation of all structural,
mechanical and electrical components of the Building. Tenant
further acknowledges that Landlord is vitally interested in
maintaining the high quality, character and standards of the
Building as a First Class Office/Research and Development
Building and that but for the Tenant's assurances given below,
Landlord would not enter this Lease nor permit Tenant to
perform Tenant's Work using Tenant's G.C. Accordingly, in
order to provide Landlord with the assurances it requires in
that regard and as a material inducement to the Landlord to
enter into this Lease, Tenant hereby covenants and agrees with
Landlord as follows:
In addition to and without limitation of any other term,
covenant, provision or condition contained in this Lease
regarding alterations and improvements to be performed by
Tenant, the Tenant, for itself and for Tenant's G.C. hereby
covenants and agrees with Landlord that Tenant, Tenant's G.C.,
and all of their agents, servants and employees shall comply
with all directions, orders, instructions, rules, directives
and regulations now or hereafter implemented or made by
Landlord's Construction Representative, including, without
limitation, compliance with any request or order by Landlord's
Construction Representative to cease and desist from performing
any part of Tenant's Work. Landlord's Construction
Representative shall not act in an arbitrary or capricious
manner in exercising its rights under this clause.
Landlord shall provide Tenant with specific guidelines relating
to Tenant's Work and Tenant shall comply with such guidelines.
All of Tenant's Work shall be coordinated with any work being
performed by Landlord in the Building and in such a manner as
to maintain harmonious labor relations and not damage the
Property or interfere with the Building construction or
operation or any other tenant or occupants of the Building.
Tenant shall comply with the reasonable oral or written
directions of the Landlord's Construction Representative with
respect to the covenants of Tenant contained in the foregoing
clause and if not corrected or completed to the reasonable
satisfaction of the Landlord's Construction Representative
within one hour after the giving of such notice then, Landlord
shall have the right, but not the obligation, in addition to
all other rights and remedies afforded the Landlord pursuant to
this Lease, to seek and obtain specific performance of such
covenants by way of injunctive relief or other equitable
remedy.
Tenant shall cause Tenant's G.C. to obtain and maintain (i) a
payment and performance bond and (ii) a lien bond for the
benefit of Landlord and Tenant in an amount which is equal to
the costs of completing Tenant's Work. Tenant shall provide
Landlord's Construction Representative with a copy of such bond
and evidence of its effectiveness before commencing Tenant's
Work.
(b) Tenant's Indemnity with respect to Tenant's Work.
To the maximum extent this Agreement may be made effective
according to law, Tenant agrees to indemnify and save Landlord
harmless from and against any and all loss, cost, penalties,
liabilities, damages and claims arising from any act, omission
or negligence of Tenant or Tenant's G.C. (unless Tenant's G.C.
is Cranshaw Construction) or any contractors or workman
employed by either of them ("Tenant's Subs") or their
contractors, licensees, agents, servants or employees arising
from the performance of Tenant's Work caused to any person or
to the property of any person, the Building, or the Property.
In addition, Tenant hereby agrees to indemnify and hold
Landlord harmless from and against any and all loss, cost, or
damages incurred by Landlord as a result of any tenant or
occupant of the building claiming that, as a result of Tenant's
Work, the conduct of Tenant's G.C.(unless Tenant's G.C. is
Cranshaw Construction), Tenant's Subs or Tenant's Construction
Representative, such tenant's use and quiet enjoyment of the
Building or its respective premises has been damaged or
destroyed. This indemnity shall, to the maximum extent this
agreement may be made effective according to law, also extend
to all loss, cost, penalties, liability, damage, claims of
whatever nature asserted against the Landlord arising out of
the use or occupancy or passage or travel over or upon, the
Property by Tenant or by any person claiming by, through or
under Tenant including, without limitation, Tenant's G.C.
(unless Tenant's G.C. is Cranshaw Construction) and Tenant's
Subs and their respective agents, employees, contractors and
customers or arising out of any delivery to or service applied
to the Premises or on account of or based on anything
whatsoever done in the Property unless caused by the negligence
or willful misconduct of Landlord or its servants or agents.
The indemnity contained in this Section 3.6(b) shall (i)
include indemnity against all cost, expenses and liabilities
incurred in or in connection with any such claim or proceeding
brought thereon and the defense thereof with counsel approved
by the Landlord and (ii) survive expiration or earlier
termination of this Lease. In no event shall Landlord be
entitled to any indemnity for consequential damages.
Section 3.7 Delays.
(a) On November 1, 1997, Landlord intends to have
satisfied all the Release Conditions contained in the Escrow
Agreement, including, without limitation, the condition
relating to the "Permits", as said term is defined in the
Escrow Agreement. If, on December 15, 1997, all of the Release
Conditions are not completely satisfied or Landlord has not
commenced construction by placement of forms for the foundation
of the Building on the Lot, then, at Tenant's election, Tenant
shall have the right (i) to terminate this Lease by written
notice to Landlord within three (3) Business Days of December
15, 1997 or (ii) take thirty (30) days to evaluate its
situation and, on January 15, 1998, Tenant shall have the right
to terminate this Lease by written notice to Landlord within
three (3) Business Days of January 15, 1998. Any failure of
Tenant to exercise its rights of termination within three (3)
Business Days of December 15, 1997 or January 15, 1998, as the
case may be, shall constitute a waiver of such rights of
termination on such dates. Notwithstanding anything to the
contrary contained in this Lease, once Landlord commences
construction by placement of forms for the foundation of the
Building on the Lot and, subject to delays caused by Force
Majeure, diligently pursues completion of the Base Building,
then, except as otherwise expressly provided herein, Tenant
shall have no right to terminate this Lease for delays
associated with Landlord's completion of the Base Building
unless Landlord fails to deliver the Base Building on the
Outside Date or, if delays have been caused by Force Majeure,
Landlord fails to deliver the Base Building on the Force
Majeure Date. Landlord shall provide Tenant with written notice
of any Force Majeure event promptly after the occurrence of
such event and Landlord's best estimate of the delay caused by
such event. If, on the Outside Date, Landlord fails to deliver
the Base Building due to delays caused by reasons other than
Force Majeure, then Tenant shall have the right to terminate
this Lease by written notice to Landlord. Any failure of
Tenant to exercise its right of termination within three (3)
Business Days of the Outside Date shall constitute a waiver of
such right of termination. If, prior to the Outside Date,
Landlord anticipates that it will fail to deliver the Base
Building on the Outside Date due to delays caused by Force
Majeure, then Landlord shall notify Tenant within three (3)
Business Days prior to the Outside Date of the reason(s) for
such failure and Landlord's best estimate of the Force Majeure
Date, and Landlord shall have an additional period equal to the
Force Majeure Period in order to deliver the Base Building on
the Force Majeure Date. If, on the Force Majeure Date,
Landlord fails to deliver the Base Building, then Tenant shall
have the right to terminate this Lease by written notice to
Landlord. Any failure of Tenant to exercise its right of
termination within three (3) Business Days of the Force Majeure
Date shall constitute a waiver of such right of termination.
(b) This Subsection (b) and Section 9.4 shall apply
before and during the Term. All of the Tenant's alterations,
additions and installation of furnishings shall be coordinated
with any work being performed by Landlord and in such manner as
to maintain harmonious labor relations and not damage the
Property or interfere with Building construction or operation
and, except for Tenant's Work and installation of furnishings,
shall be performed by Landlord's general contractor or, at
Landlord's election, by contractors or workmen first approved
by Landlord. Except for work by Landlord's general contractor,
Tenant before its work is started shall: secure all licenses
and permits necessary therefor; deliver to Landlord a statement
of the names of all its contractors and subcontractors and the
estimated cost of all labor and material to be furnished by
them; and cause each contractor to carry workmen's compensation
insurance in statutory amounts covering all the contractor's
and subcontractor's employees and comprehensive public
liability insurance and property damage insurance with such
limits as Landlord may reasonably require but in no event less
than a combined single limit of Two Million and No/100ths
($2,000,000.00) Dollars (all such insurance to be written in
companies approved by Landlord and insuring Landlord and Tenant
as well as the contractors), and to deliver to Landlord
certificates of all such insurance. Tenant agrees to pay
promptly when due the entire cost of any work done on the
Premises by Tenant, its agents, employees, or independent
contractors, and not to cause or permit any liens for labor or
materials performed or furnished in connection therewith to
attach to the Premises or the Property and immediately to
discharge any such liens which may so attach and, at the
request of Landlord to deliver to Landlord security
satisfactory to Landlord against liens arising out of the
furnishing of such labor and material. Upon completion of any
work done on the Premises by Tenant, its agents, employees, or
independent contractors, Tenant shall promptly deliver to
Landlord original lien releases and waivers executed by each
contractor, subcontractor, supplier, materialmen, architect,
engineer or other party which furnished labor, materials or
other services in connection with such work and pursuant to
which all liens, claims and other rights of such party with
respect to labor, material or services furnished in connection
with such work are unconditionally released and waived.
Section 3.8. General Provisions Applicable to
Construction. All construction work required or permitted by
this Lease, whether performed by Landlord or by Tenant, shall
be done in a good and workmanlike manner and in compliance with
all applicable laws, ordinances, regulations, codes and orders
of any governmental authority. Either party may inspect the
work of the other at reasonable times and shall give notice of
observed defects.
Section 3.9. Construction Representatives. Each party
authorizes the other to rely in connection with plans and
construction upon approval and other actions on the party's
behalf by any Construction Representative of the party named in
Section 1.1 or any person hereafter designated in substitution
or addition by notice to the party relying.
Section 3.10. Changes In Building or Lot. Landlord shall
have the right, prior to or during construction of the
Building, to redesign the Building and/or floors within the
Building to the extent made necessary by field conditions, by
requirement of any applicable law, by-law, ordinance or
municipal authority or otherwise; provided, however, that no
such redesign shall relieve Landlord of its obligation to
deliver the Premises, or any portion thereof, in accordance
with the foregoing provisions of this Section 3 of the Lease
and further provided that no such redesign shall be made
without the approval of Tenant, which approval shall not be
unreasonably withheld or delayed. In the event any such
redesign shall be implemented, Landlord shall keep Tenant fully
advised as to the changes made to the floor plans attached
hereto as Exhibit A and the parties shall enter promptly into
an amendment to this Lease reflecting any increase or decrease
in the area of the Premises, change in the Annual Rent and the
like resulting from any such redesign. Landlord also reserves
the right to change its layout, design and plans for the Lot
and Leasehold Parking Area and for parking and roadways thereon
at any time and to add to or reduce the size of the Lot and the
Leasehold Parking Area; provided that no reduction in the size
of the Lot may adversely affect the Building or the number of
parking spaces made available to Tenant under this Lease or
access ways serving the Building.<PAGE>
SECTION 4
Annual Rent
Section 4.1. The Annual Rent. Except as otherwise
provided in Section 3.1 of this Lease, commencing on the
Commencement Date, Tenant shall pay the Annual Rent to Landlord
at the Address of Landlord or at such other place or to such
other person or entity as Landlord may by notice to Tenant from
time to time direct, at the Annual Fixed Rent set forth in
Section 1, in equal installments equal to 1/12th of the Annual
Fixed Rent in advance on the first day of each calendar month
included in the Term, and for any portion of a calendar month
at the beginning or end of the Term, at that pro-rated rate
payable in advance for such portion, and the Additional Rent in
accordance with the terms and provisions of this Lease. Tenant
shall pay a late charge equal to five (5%) percent of the
amount of any Annual Rent payment or other charge which is not
paid when due.
SECTION 5
Operating Cost Escalation
Section 5.1. Operating Cost Escalation. Tenant shall pay
to Landlord, as Additional Rent, Operating Cost Escalation (as
defined below) on or before the 10th day following receipt by
Tenant of Landlord's Operating Cost Statement (as defined
below).
As used herein, the term "Landlord's Operating Costs"
shall mean all of the following: premiums for insurance;
compensation and all fringe benefits, worker's compensation,
insurance premiums and payroll taxes paid by Landlord to, for
or with respect to all persons engaged in the managing,
operating, maintaining or cleaning of the Property; water and
sewer use charges for the Property; all common area utility
charges not billed directly to tenants by Landlord or the
utility; payments to contractors and management companies under
service or management contracts (or other costs incurred
directly by Landlord or its agents) for operating, managing,
cleaning, maintaining and repairing the Property, including,
without limitation, management fees, Building cleaning, window
cleaning, pest extermination, trash removal, landscaping, snow
removal and repair and maintenance to elevators, the common
area HVAC, electric and plumbing systems and the parking area
(which payments may be to affiliates of Landlord, provided the
same are at reasonable rates), and all other reasonable and
necessary expenses paid in connection with the cleaning,
operating, managing, maintaining and repairing of the Property,
or any of them, and properly chargeable against income; it
being agreed that if Landlord shall install a new or
replacement capital item for the purpose of complying with
applicable laws or regulations or intended to reduce Landlord's
Operating Costs, the annual amortization (reasonably determined
by Landlord over the useful life of the asset) of the cost
thereof, with interest thereon at an annual rate equal to two
(2%) percent above the base rate (prime rate) of BankBoston (or
any other Bank having offices in Boston, Massachusetts chosen
by Landlord) from time to time, shall be included in Landlord's
Operating Costs; all costs and expenses allocated to the
Property under that certain "Declaration of Covenants,
Restrictions, Development Standards and Easements" dated
December 30, 1996 and recorded in the Middlesex South District
Registry of Deeds in Book 26738, Page 245, as the same may be
amended, restated, modified, changed, supplemented or
substituted from time to time (the "Reciprocal Easement
Agreement"), including, without limitation, all costs and
expenses of operating, maintaining, lighting, plowing and
repairing the Leasehold Parking Area, shall be included in
Landlord's Operating Costs.
Within sixty (60) days of the end of each calendar year
during the Term and after Lease termination, Landlord shall
render a statement ("Landlord's Operating Cost Statement") in
reasonable detail and according to usual accounting practices,
certified by Landlord, and showing for the preceding calendar
year or fraction thereof, as the case may be, Landlord's
Operating Costs (as defined below), excluding the interest and
amortization on mortgages for the Building and Lot, the cost of
special services rendered to tenants (including Tenant) for
which a special charge is made, real estate taxes on the
Building and Lot (including installments and interest on
assessments for public betterments or public improvements and
expenses of any proceedings for abatement of taxes and
assessments with respect to any fiscal year or fraction of a
fiscal year) and any costs relating to remediation of any
hazardous materials on the Lot and the Leasehold Parking Area
in connection with closure of the landfill on the Landfill Lot.
If, during the Term of this Lease, Landlord shall incur
capital expenses in connection with repairs to the roof,
foundation or structure of the Building directly related to any
equipment installed and used by Tenant in the Building, there
shall be included in the amount of the annual amortization
(determined by Landlord) of the cost thereof, with interest
thereon, at an annual rate equal to two (2%) percent above the
base rate (prime rate) of BankBoston (or any other bank having
offices in Boston, Massachusetts chosen by Landlord) from time
to time in effect at the time of making such capital repairs
(less insurance proceeds or other proceeds, if any, collected
by Landlord by reason of damage to, or destruction of, any
capital items so repaired.
If Annual Base Operating Costs exceed Landlord's
Operating Costs for any Lease Year during the Term as evidenced
by Landlord's Operating Cost Statement, then Landlord shall
credit Tenant the amount equal to the product of: (i) Tenant's
Proportionate Share times (ii) the excess of the Annual Base
Operating Costs over the Landlord's Operating Costs for the
applicable Lease Year as evidenced by Landlord's Operating Cost
Statement for the applicable Lease Year, against the next
payment(s) of Annual Fixed Rent (or refund such overpayment if
the Term of this Lease has ended and Tenant has no further
obligation to Landlord).
"Operating Cost Escalation" shall be equal to Tenant's
Proportionate Share of the excess, if any, of:
(a) Landlord's Operating Costs for each calendar year as
indicated by Landlord's Operating Cost Statement; over
(b) The Annual Base Operating Costs.
Operating Cost Escalations shall be apportioned for any
calendar year in which the Lease Term commences or ends.
Notwithstanding any other provision of this Section 5.1, if the
Term expires or is terminated as of a date other than the last
day of a calendar year, then for such fraction of a calendar
year at the end of the Term, Tenant's last payment to Landlord
under this Section 5.1 shall be made on the basis of Landlord's
best estimate of the items otherwise includable in Landlord's
Operating Cost Statement and shall be made on or before the
later of (a) 10 days after Landlord delivers such estimate to
Tenant, or (b) the last day of the Term, with an appropriate
payment or refund to be made upon submission of Landlord's
Operating Cost Statement. Tenant shall have the right, at
Tenant's expense to audit Landlord's Operating Cost Statement
within ninety (90) days after Landlord provides Tenant with
said statement provided, however, that in no event shall Tenant
have the right to conduct more than one such audit in any
calendar year.
Section 5.2. Estimated Operating Cost Escalation
Payments. If, with respect to any calendar year or fraction
thereof during the Term, Landlord reasonably estimates that
Tenant shall be obligated to pay Operating Cost Escalation,
then Tenant shall pay, as Additional Rent, on the first day of
each month of such calendar year and each ensuing calendar year
thereafter, estimated monthly escalation payments equal to 1/
12th of the estimated Operating Cost Escalation for the
respective calendar year, with an appropriate additional
payment or refund to be made within 30 days after Landlord's
Operating Cost Statement is delivered to Tenant. Landlord may
adjust such estimated monthly escalation payment from time to
time and at any time during a calendar year, and Tenant shall
pay, as Additional Rent, on the first day of each month
following receipt of Landlord's notice thereof (which notice
shall be accompanied by appropriate documentation supporting
such adjustment), the adjusted estimated monthly escalation
payment.
SECTION 6
Real Estate Tax Escalation.
Section 6.1. Real Estate Tax Escalation. Tenant shall pay
to Landlord, as Additional Rent, Real Estate Tax Escalation (as
defined below) on or before the thirtieth (30th) day following
billing therefor by Landlord.
As used herein, the term "Real Estate Taxes" shall mean
all taxes, assessments (special, betterment or otherwise),
levies, fees, water and sewer rents and charges, and all other
government levies and charges, general and special, ordinary
and extraordinary, foreseen and unforeseen, which are allocable
to the Term hereof and imposed or levied upon or assessed
against the Property. Nothing herein shall, however, require
Tenant to pay any income taxes, excess profits taxes, excise
taxes, franchise taxes, estate, succession, inheritance or
transfer taxes, provided, however, that if at any time during
the Term the present system of ad valorem taxation of real
property shall be changed so that in lieu of the whole or any
part of the ad valorem tax on real property, or in lieu of
increases therein, there shall be assessed on Landlord a
capital levy or other tax on the gross rents received with
respect to the Property or a federal, state, county, municipal,
or other local income, franchise, excise or similar tax,
assessment, levy or charge (distinct from any now in effect)
measured by or based, in whole or in part, upon gross rents,
then any and all of such taxes, assessments, levies or charges,
to the extent so measured or based ("Substitute Taxes"), shall
be included as real estate taxes hereunder, provided, however,
that Substitute Taxes shall be limited to the amount thereof as
computed at the rates that would be payable if the Building and
the Lot were the only property of Landlord. The term "real
estate taxes" shall also mean all real estate taxes and
assessments (or any substitute therefor) which are allocated to
the Property under the Reciprocal Easement Agreement.
"Real Estate Tax Escalation" shall be equal to Tenant's
Proportionate Share of the excess, if any, of:
(a) Real Estate Taxes for the applicable tax fiscal year
occurring during the Term; over
(b) the Annual Base Real Estate Taxes.
Notwithstanding any other provision of this Section 6.1,
if the Term expires or is terminated as of a date other than
the last date of a tax fiscal year, then for such fraction of a
tax fiscal year at the end of the Term, Tenant's last payment
to Landlord under this Section 6.1 shall be made to reflect
that only a portion of such tax fiscal year falls within the
Term of this Lease and shall be made within 10 days after
Landlord bills Tenant therefor.
Section 6.2. Estimated Real Estate Escalation
Payments. If, with respect to any tax fiscal year or fraction
thereof during the Term, Landlord reasonably estimates that
Tenant shall be obligated to pay Real Estate Tax Escalation,
Tenant shall pay, as Additional Rent, on the first day of each
month of such tax fiscal year and each ensuing tax fiscal year
thereafter, estimated monthly escalation payments equal to 1/
12th of the estimated Real Estate Tax Escalation for the
respective tax fiscal year, with an appropriate additional
payment or refund to be made within 30 days after Landlord's
delivery of the tax bills for such period to Tenant. Landlord
may adjust such estimated monthly escalation payment from time
to time and at any time during a tax fiscal year, and Tenant
shall pay, as Additional Rent, on the first day of each month
following receipt of Landlord's notice thereof, the adjusted
estimated monthly escalation payment.
Section 6.3. Assessment of Property. If Annual Base
Real Estate Taxes exceed the Real Estate Taxes assessed against
the Property for any fiscal year (the "Actual Annual Taxes"),
then Landlord shall credit Tenant the amount equal to the
product of: (i) Tenant's Proportionate Share times (ii) the
excess of the Annual Base Real Estate Taxes over the Actual
Annual Taxes for the applicable fiscal year, against the next
payment(s) of Annual Fixed Rent (or refund such overpayment if
the Term of this Lease has ended and Tenant has no further
obligation to Landlord).
SECTION 7
Insurance
Section 7.1. Tenant's Insurance. Tenant shall, as
additional rent, maintain throughout the Term the following
insurance:
(a) Commercial general liability insurance for any
injury to person or property occurring on the Premises, naming
as insureds Tenant, Landlord and such persons, including,
without limitation, Landlord's managing agent, as Landlord
shall designate from time to time, in amounts which shall, at
the beginning of the Term, be at least equal to the limits set
forth in Section 1, and, from time to time during the Term,
shall be for such higher limits as are reasonably required by
Landlord; and
(b) Worker's compensation insurance with statutory
limits covering all of Tenant's employees working at the
Premises; and
(c) Environmental liability insurance for any
release or threat of release of "Hazardous Materials" (as said
term is defined in Section 13.11 hereof) occurring on the
Property as a result of Tenant's use and operation of the
Premises, naming as insureds, Tenant, Landlord and such
persons, including, without limitation, Landlord's managing
agent and Landlord's mortgagee, as Landlord shall designate
from time to time, in such amounts as are reasonably required
by Landlord, but in no event less than (1) $1,000,000 per claim
for Pollution Legal Liability Select Coverage and (ii)
$2,000,000 in the aggregate for bodily injury, property damage
and clean up costs. Tenant acknowledges and agrees that if
Landlord is required to obtain any special environmental
insurance as a result of Tenant's use and occupancy of the
Property, then Tenant shall pay for any insurance premiums
related thereto which insurance premiums shall be included in
Landlord's Operating Costs.
Section 7.2. Requirements Applicable to Insurance
Policies. All policies for insurance required under the
provisions of Section 7.1 shall be obtained from responsible
companies qualified to do business in the Commonwealth of
Massachusetts and in good standing therein, which companies and
the amount of insurance allocated thereto shall be subject to
Landlord's approval, which approval shall not be unreasonably
withheld or delayed. Tenant agrees to furnish Landlord with
insurance company certificates of all such insurance and copies
of the policies therefor prior to the beginning of the Term
hereof and of each renewal policy at least thirty (30) days
prior to the expiration of the policy it renews. Each such
policy shall be noncancellable with respect to the interest of
Landlord and such mortgagees without at least thirty (30) days'
prior written notice thereto.
Section 7.3. Waiver of Subrogation. All insurance which
is carried by either party with respect to the Premises or to
furniture, furnishings, fixtures or equipment therein or
alterations or improvements thereto, whether or not required,
shall include provisions which either designate the other party
as one of the insureds or deny to the insurer acquisition by
subrogation of rights of recovery against the other party to
the extent such rights have been waived by the insured party
prior to occurrence of loss or injury, insofar as, and to the
extent that such provisions may be effective without making it
impossible to obtain insurance coverage from responsible
companies qualified to do business in the Commonwealth of
Massachusetts (even though extra premium may result therefrom)
and without voiding the insurance coverage in force between the
insurer and the insured party. On reasonable request, each
party shall be entitled to have duplicates or certificates of
policies containing such provisions. Each party hereby waives
all rights of recovery against the other for loss or injury
against which the waiving party is protected by insurance
containing said provisions, reserving, however, any rights with
respect to any excess of loss or injury over the amount
recovered by such insurance.
SECTION 8
Landlord's Covenants
Section 8.1. Quiet Enjoyment. Tenant, on paying the rent
and performing its obligations hereunder, shall peacefully and
quietly have, hold and enjoy the Premises throughout the Term
without any manner of hindrance or molestation from Landlord or
anyone claiming under Landlord, subject, however, to all the
terms and provisions hereof.
Section 8.2. Maintenance and Repair. Subject to the
provisions of Section 10, Landlord shall maintain the roof,
structural supports, foundation and exterior of the Building
and all standard plumbing, electrical, mechanical, heating,
ventilating and air conditioning systems installed by Landlord
(but excluding all special systems installed by Tenant or by
Landlord at Tenant's request) in good condition and shall
maintain and clean the common areas of the Building and the
Lot, the cost of which shall be included in Landlord's
Operating Costs.
Section 8.3. Electricity, Water and Gas. Electricity,
water and gas to the Premises shall be separately metered or
check metered and all utility charges for lights and plugs,
water and gas serving the Premises shall be billed directly to,
and paid by, Tenant. If in Landlord's reasonable judgment,
Tenant's use of electricity, water and gas in excess of normal
office usage shall result in an additional burden on the
Building's utility systems or additional cost on account
thereof, as the case may be, Tenant shall upon demand reimburse
Landlord for all additional costs related thereto. Landlord,
at Tenant's expense, shall replace and install all ballasts,
lamps and bulbs (including, but not limited to, incandescent
and fluorescent) used in the Premises. All such replacements
shall be of a type, color and size as shall be designated by
Landlord. Landlord shall not in any way be liable or
responsible to Tenant for any loss, damage or expense which
Tenant may sustain or incur if the quantity, character, or
supply of electricity is changed or is no longer available or
suitable for Tenant's requirements.
Section 8.4. HVAC. All charges for any air conditioning,
heating and ventilation systems servicing the Premises shall be
billed directly to, and paid by Tenant, except for any portion
of the Premises occupied by Tenant where Landlord provides the
air conditioning, heating and ventilation services. Tenant
shall pay for any charges, costs and expenses associated with
the use, repair, maintenance and replacement of any air
conditioning, heating and ventilation system servicing the
Premises. Landlord shall, on Business Days and generally
during Business Hours furnish heating and cooling as normal
seasonal changes may require to provide reasonably comfortable
space temperature and ventilation for common areas of the
Building, and Tenant shall pay Tenant's Proportionate Share of
any costs and expenses associated with such services. In the
event Tenant introduces into the Premises personnel or
equipment which overloads the capacity of the Building system
or in any other way interferes with the system's ability to
perform adequately its proper functions, or which affects the
temperature otherwise maintained by the air-conditioning
system, supplementary systems may, if and as needed, at
Landlord's option, be provided by Landlord, at Tenant's
expense.
Section 8.5. Cleaning. With respect to the common areas
of the Building, Landlord shall provide nightly cleaning
services as more particularly described in Exhibit K attached
hereto for said portions of the Building (Mondays through
Fridays only) commensurate with industry standards for office
buildings comparable to the Building located in Framingham,
Massachusetts.
Section 8.6. Interruptions.
(a) Landlord shall not be liable to Tenant for any
compensation or reduction of rent by reason of inconvenience or
annoyance or for loss of business arising from power losses or
shortages or from the necessity of Landlord's entering the
Premises for any of the purposes authorized by this Lease or
for repairing the Premises or any portion of the Building or
Lot or Leasehold Parking Area. In case Landlord is prevented or
delayed from making any repairs, alterations or improvements,
or furnishing any service or performing any other obligation to
be performed on Landlord's part, by reason of any cause,
Landlord shall not be liable to Tenant therefor, nor shall
Tenant be entitled to any abatement or reduction of rent by
reason thereof, nor shall the same give rise to any claim by
Tenant that such failure constitutes actual or constructive,
total or partial, eviction from the Premises. Landlord
reserves the right to stop any service or utility system when
necessary by reason of accident or emergency or until necessary
repairs have been completed. Except in case of emergency
repairs, Landlord will give Tenant reasonable advance notice of
any contemplated stoppage and will use reasonable efforts to
avoid unnecessary inconvenience to Tenant by reason thereof.
Landlord also reserves the right to institute such policies,
programs and measures as may be necessary, required or
expedient for the conservation or preservation of energy or
energy services or as may be necessary or required to comply
with applicable codes, rules, regulations or standards. In so
doing, Landlord shall make reasonable efforts to avoid
unnecessary inconvenience to Tenant by reason thereof.
(b) Notwithstanding anything contained in this Lease to
the contrary, if (i) an interruption or curtailment, suspension
or stoppage of an Essential Service (as said term is
hereinafter defined) shall occur (any such interruption of an
Essential Service being hereinafter referred to as a "Service
Interruption"), (ii) such Service Interruption occurs or
continues as a result of an involuntary interruption, stoppage
or suspension of Essential Services by Landlord or as the
result of any circumstance which is subject to the control of
Landlord, (iii) such Service Interruption continues for more
than forty five (45) consecutive calendar days after Landlord
shall have received notice thereof from Tenant, (which notice
shall specifically refer to the provisions of this paragraph)
and (iv) as a result of such Service Interruption, the conduct
of Tenant's normal operations in the Premises are materially
and adversely affected, then there shall be an abatement of one
day's Annual Fixed Rent for each day during which such Service
Interruption continues provided, further, that if any part of
the Premises is reasonably useable for Tenant's operations or
if Tenant conducts all or any part of its operations in the
Premises notwithstanding such Service Interruption, then the
amount of each daily abatement of Annual Fixed Rent shall only
be proportionate to the nature and extent of the interruption
of Tenant's normal operations. The rights granted under this
paragraph shall be personal to the original Tenant and shall
terminate upon any assignment of the Lease or any subletting of
all or any portion of the Premises outstanding at any one time.
For purposes hereof, the term "Essential Services" shall mean
the following services, to the extent that Landlord has agreed
to provide any of them to Tenant pursuant to this Lease:
elevator service, heating, air-conditioning, water and
electricity. Any abatement of Annual Fixed Rent under this
paragraph shall apply only with respect to Annual Fixed Rent
allocable to the period after each of the conditions set forth
in subsections (i) through (iv) hereof shall have been
satisfied.
Section 8.7. Representations.
(a) To the best of Landlord's knowledge, Landlord
represents, but does not warrant, that: (i) it has good clear
record and marketable title to the Lot, free and clear of all
encumbrances or obligations affecting the Lot other than the
Title Exceptions and any other rights, easements, encumbrances
and reservations which shall not materially interfere with
Tenant's rights under the Lease. To the best of Landlord's
knowledge, there is no pending or threatened condemnation or
eminent domain proceeding with respect to the Lot. To the best
of Landlord's knowledge, the Lot is legally subdivided and
consists of a separate tax lot so that it will be assessed
separate and apart from any other property. To the best of
Landlord's knowledge, there are no suits, notices or
proceedings pending, or to the best of Landlord's knowledge,
threatened by any persons or government agencies before any
court, governmental agency or instrumentality administrative or
otherwise which would have an affect on Landlord's title to the
Lot.
(b) Landlord is the assignee of Tenant's interest under
the Ground Lease, and, to the best of Landlord's knowledge,
Landlord's interest is free and clear of any liens or
encumbrances, except for the Title Exceptions and any other
rights, easements, encumbrances and reservations which shall
not materially interfere with Tenant's rights under the Lease.
To the best of Landlord's knowledge, true, correct and complete
copies of the Ground Lease and all amendments, modifications
and supplemental agreements thereto have previously been
delivered to Landlord. To the best of Landlord's knowledge,
the Ground Lease is in full force and affect and is binding and
enforceable against each of the parties thereto in accordance
with its terms and has not been modified or amended since the
date of delivery to Tenant. To the best of Landlord's
knowledge, there has not occurred any event which would
constitute a breach of or default in the performance of any
material covenant, agreement or condition contained in the
Ground Lease, nor has there occurred any events which with the
passage of time, giving of notice or both would constitute such
a breach or material default. Landlord shall perform and
observe all of the terms, covenants and conditions required to
be performed by Landlord as tenant under the Ground Lease.
Section 8.8. Estoppel Certificates. Landlord shall at
any time and from time to time upon not less than ten (10)
days' prior notice by Tenant to Landlord, execute, acknowledge
and deliver to Tenant a statement in writing certifying that
this Lease is unmodified and in full force and effect (or if
there have been modifications, that the same is in full force
and effect as modified and stating the modifications), and the
dates to which the rent and other charges have been paid in
advance, if any, and stating whether or not to the best of
Landlord's knowledge, Tenant is in default in performance of
any covenant, agreement, term, provision or condition contained
in this Lease and, if so specifying each such default of which
the Landlord may have knowledge.
SECTION 9
Tenant's Covenants
Section 9.1. Use. Tenant shall use the Premises only for
the Permitted Uses and shall from time to time procure all
licenses and permits necessary therefor at Tenant's sole
expense.
Section 9.2. Repair and Maintenance. Except as otherwise
provided in Sections 8 and 10, Tenant shall keep the Premises,
including all plumbing, electrical, heating, air conditioning
and other systems therein, in good order, condition and repair
and in at least as good order, condition and repair as they are
in on the Commencement Date or may be put in during the Term,
reasonable use and wear only excepted. Tenant shall make all
repairs and replacements and do all other work necessary for
the foregoing purposes whether the same may be ordinary or
extraordinary, foreseen or unforeseen. Tenant shall keep in a
safe, secure and sanitary condition all trash and rubbish
temporarily stored at the Premises.
Section 9.3. Compliance with Law and Insurance
Requirements. Tenant shall comply with all laws, rules,
regulations, codes and ordinances including, without
limitation, OSHA, NIH and FDA regulations, in its use and
occupancy of the Property. Tenant shall make all repairs,
alterations, additions or replacements to the Premises required
by any law or ordinance or any order or regulation of any
public authority arising from Tenant's use of the Premises and
shall keep the Premises equipped with all safety appliances so
required. Tenant shall not release, dump, flush, or in any way
introduce any "Hazardous Materials" (as said term is defined in
Section 13.11 hereof) into the septic, sewage or other waste
disposal system serving the Premises, or generate, store,
transfer or dispose of Hazardous Materials in or on the
Premises or dispose of Hazardous Materials from the Premises to
any other location except in compliance with "Environmental
Laws" (as said term is defined in Section 13.11 hereof). Tenant
shall notify Landlord of any incident which would require the
filing of a notice under the Environmental Laws.
Landlord may, if it so elects, make any of the repairs,
alterations, additions or replacements referred to in this
Section which affect the Building structure or the Building
systems, and Tenant shall reimburse Landlord for the cost
thereof on demand.
Tenant will provide Landlord, from time to time upon
Landlord's request, with all records and information regarding
any Hazardous Materials maintained on the Premises by Tenant.
Landlord shall have the right to make such inspections as
Landlord shall reasonably elect from time to time to determine
if Tenant is complying with this Section and if any of such
inspections reveals contamination by Hazardous Materials of the
Property as a result of Tenant's operations or actions or the
actions of Tenant's agents, contractors or employees, Tenant
shall reimburse Landlord for the cost of performing (or
contracting for) such inspections.
Tenant shall comply promptly with the recommendations of
any insurer, foreseen or unforeseen, ordinary as well as
extraordinary, which may be applicable to the Property, by
reason of Tenant's use thereof. In no event shall any activity
be conducted by Tenant on the Property which may give rise to
any cancellation of any insurance policy or make any insurance
unobtainable.
Section 9.4. Tenant's Alterations. Landlord and Tenant
agree that this Section 9.4 shall apply to any future
installations, alterations, additions or improvements in or to
the Premises occurring after the construction of Tenant's Work
in accordance with Section 3.4 hereof. Tenant shall not make
any installations, alterations, additions or improvements in or
to the Premises, including, without limitation, any apertures
in the walls, partitions, ceilings or floors, without on each
occasion obtaining the prior written consent of Landlord, which
consent shall not be unreasonably withheld or delayed. Any such
work so consented to by Landlord shall be performed only in
accordance with plans and specifications therefor approved by
Landlord which approval shall not be unreasonably withheld or
delayed. Tenant shall procure at Tenant's sole expense all
necessary permits and licenses before undertaking any work on
the Premises and shall perform all such work in a good and
workmanlike manner employing materials of good quality and so
as to conform with all applicable zoning, building, fire,
health and other codes, regulations, ordinances and laws and
with all applicable insurance requirements. Tenant agrees to
pay promptly when due the entire cost of any work done on the
Premises by Tenant, its agents, employees or independent
contractors, and not to cause or permit any liens for labor or
materials performed or furnished in connection therewith to
attach to the Property and to discharge any such liens which
may so attach within five (5) calendar days and, at the request
of Landlord, to deliver to Landlord security satisfactory to
Landlord against liens arising out of the furnishing of such
labor and material, including, without limitation, evidence of
bonding over said liens with performance, payment and lien
bonds in favor of Landlord and Tenant; Landlord and Tenant
agree that payment and performance bonds shall only be
necessary for any work for which the total contract sum exceeds
$100,000.00. Tenant shall employ for such work only
contractors approved by Landlord, which approval shall not be
unreasonably withheld or delayed, and shall require all
contractors employed by Tenant to carry worker's compensation
insurance in accordance with statutory requirements and
comprehensive general liability insurance covering such
contractors, and naming Landlord and Tenant as additional
insureds, on or about the Premises in amounts at least equal to
the limits set forth in Section 1 and to submit certificates
evidencing such coverage to Landlord prior to the commencement
of such work. Tenant shall save Landlord harmless and
indemnified from all injury, loss, claims or damage to any
person or property occasioned by or growing out of such work.
Landlord may inspect the work of Tenant at reasonable times and
give notice of observed defects.
Section 9.5. Indemnity. Tenant shall defend, with counsel
reasonably approved by Landlord, all actions against Landlord,
any member, partner, trustee, stockholder, officer, director,
employee or beneficiary of Landlord, holders of mortgages
secured by the Building and any other party having an interest
in the Premises ("Indemnified Parties") with respect to, and
shall pay, protect, indemnify and save harmless, to the extent
permitted by law, all Indemnified Parties from and against, any
and all liabilities, losses, damages, costs, expenses
(including reasonable attorneys' fees and expenses), causes of
action, suits, claims, demands or judgments of any nature
arising from (a) injury to or death of any person, or damage to
or loss of property, occurring in the Premises unless caused by
the negligence or willful misconduct of Landlord or its
servants or agents, (b) violation of this Lease by Tenant, or
(c) any wrongful act or other misconduct of Tenant or its
agents, general contractor (unless Tenant's G.C. is Cranshaw
Construction), contractors, subcontractors, licensees,
sublessees or invitees. The indemnity contained in this
Section 9.5 shall survive any expiration or earlier termination
of this Lease. In no event shall Landlord be entitled to any
indemnity for consequential damages.
Section 9.6. Landlord's Right to Enter. Tenant shall
permit Landlord and its agents to enter into the Premises at
reasonable times and upon reasonable notice (except that in
emergencies no notice shall be required) to examine the
Premises, make such repairs and replacements as Landlord may
elect, without however, any obligation to do so, and show the
Premises to prospective purchasers and lenders, and, during the
last nine (9) months of the Term, to show the Premises to
prospective tenants and to keep affixed in suitable places
notices of availability of the Premises.
Section 9.7. Personal Property at Tenant's Risk. All
furnishings, fixtures, equipment, effects and property of every
kind of Tenant and of all persons claiming by, through or under
Tenant which may be on the Premises, shall be at the sole risk
and hazard of Tenant and if the whole or any part thereof shall
be destroyed or damaged by fire, water or otherwise, or by the
leakage or bursting of water pipes, steam pipes, or other
pipes, by theft or from any other cause, no part of said loss
or damage shall be charged to or to be borne by Landlord,
except that Landlord shall in no event be indemnified or held
harmless or exonerated from any liability to Tenant for any
injury, loss, damage or liability not covered by Tenant's
insurance to the extent prohibited by law. Tenant shall insure
Tenant's personal property.
Section 9.8. Yield Up. At the expiration of the Term or
earlier termination of this Lease, Tenant shall surrender all
keys to the Premises, remove all of Tenant's Removable Property
and repair all damage caused by such removal including, without
limitation, any repairs to the roof of the Building required as
a result of such removal and yield up (i) the Premises (broom-
clean and in the same good order and repair in which Tenant is
obliged to keep and maintain the Premises under this Lease) and
(ii) the Yield Up Equipment. Any of Tenant's Removable
Property, not so removed shall be deemed abandoned and may be
removed and disposed of by Landlord in such manner as Landlord
shall determine, and Tenant shall pay Landlord the entire cost
and expense incurred by it in effecting such removal and
disposition and in making any incidental repairs and
replacements to the Premises and for use and occupancy during
the period after the expiration of the Term and prior to
Tenant's performance of its obligations under this Section 9.8.
Section 9.9. Estoppel Certificate. Upon not less than
five (5) business days' prior notice by Landlord, Tenant shall
execute, acknowledge and deliver to Landlord a statement in
writing certifying that this Lease is unmodified and in full
force and effect and that, except as stated therein, Tenant has
no knowledge of any defenses, offsets or counterclaims against
its obligations to pay the Annual Rent and any other charges
and to perform its other covenants under this Lease (or, if
there have been any modifications that the same is in full
force and effect as modified and stating the modifications and,
if there are any defenses, offsets or counterclaims, setting
them forth in reasonable detail), the dates to which the Annual
Rent and other charges have been paid and a statement that
Landlord is not in default hereunder (or if in default, the
nature of such default, in reasonable detail). Any such
statement delivered pursuant to this Section 9.9 may be relied
upon by any prospective purchaser or mortgagee of the Building.
Section 9.10. Landlord's Expenses Re Consents.
Intentionally Omitted.
Section 9.11. Rules and Regulations. Tenant shall comply
with the Rules and Regulations attached hereto as Exhibit F
attached hereto and such additional reasonable rules and
regulations as may be adopted from time to time by Landlord to
provide for the beneficial operation of the Property.
Section 9.12. Holding Over. Tenant shall vacate the
Premises immediately upon the expiration or sooner termination
of this Lease. If Tenant retains possession of the Premises or
any part thereof after the termination of the Term without
Landlord's express consent, Tenant shall pay Landlord rent at
double the monthly rate specified in Section 1 for the time
Tenant thus remains in possession and, in addition thereto,
shall pay Landlord for all damages, excluding consequential
damages, sustained by reason of Tenant's retention of
possession. The provisions of this Section do not exclude
Landlord's rights of re-entry or any other right hereunder,
including without limitation, the right to remove Tenant
through summary proceedings for holding over beyond the
expiration of the Term of this Lease.
Section 9.13. Assignment and Subletting.
(a) Tenant covenants and agrees that neither this Lease
nor the Term and estate hereby granted, nor any interest herein
or therein, will be assigned, mortgaged, pledged, encumbered or
otherwise transferred and that neither the Premises nor any
part thereof will be encumbered in any manner by reason of any
act or omission on the part of Tenant, or used or occupied or
permitted to be used or occupied, by anyone other than Tenant,
or for any use or purpose other than a Permitted Use, or be
sublet (which term, without limitation, shall include granting
of concessions, licenses and the like) in whole or in part
without Landlord's consent which will not be unreasonably
withheld or delayed. The foregoing restrictions shall not be
applicable to an assignment of this Lease or a subletting of
the Premises by Tenant to any of the following parties
(collectively called the "Related Occupants"): a subsidiary
wholly-owned by Tenant or to a controlling corporation, the
stock of which is wholly-owned by the stockholders of Tenant,
to any Affiliate of Tenant, to any purchaser of all or
substantially all of Tenant's business or to any successor of
Tenant by merger or consolidation provided, however, that any
such Affiliate, purchaser or successor shall have a net worth
not less than that of Tenant immediately prior to such merger,
consolidation or purchase. It shall be a condition of the
validity of any assignment, whether with the consent of
Landlord or to a subsidiary or controlling corporation, that
the assignee agree directly with Landlord, by written
instrument in form satisfactory to Landlord, to be bound by all
the obligations of Tenant hereunder including, without
limitation, the covenant against further assignment and
subletting. No assignment or subletting shall relieve Tenant
from its obligations hereunder and Tenant shall remain fully
and primarily liable therefor. Notwithstanding anything to the
contrary contained herein, Landlord shall be entitled to
collect (i) one hundred (100%) percent of any profit related to
any assignment in connection with this Lease and (ii) fifty
(50%) percent of any rent, income or profit derived from any
sublease of any portion of the Premises in excess of Tenant's
Base Subleasing Profit.
(b) If this Lease be assigned, or if the Premises or
any part thereof be sublet or occupied by anyone other than
Tenant, Landlord may, whether or not it has consented to any
such assignment, subletting or occupancy, at any time and from
time to time collect rent and other charges from the assignee,
subtenant or occupant, and apply the net amount collected to
the rent and other charges herein reserved, but no such
assignment, subletting, occupancy or collection shall be deemed
a waiver of any breach of Section 8.1 (a), or the acceptance of
the assignee, subtenant or occupant as a tenant or a release of
Tenant from the further performance by Tenant of its
obligations hereunder. The consent by Landlord to an
assignment or subletting shall in no way be construed to
relieve Tenant or any successor from obtaining the express
consent in writing of Landlord to any further assignment or
subletting nor shall any such consent release, diminish or
impair Tenant's continuing primary liability for performance of
this Lease. No assignment or subletting and no use of the
Premises by a subsidiary wholly-owned by Tenant or controlling
corporation of Tenant shall affect the Permitted Uses.
(c) In connection with any request by Tenant for
Landlord's consent to a sublease as required under Section
9.13(a), Tenant shall first submit to Landlord in writing: (i)
the name of the proposed subtenant, (ii) such information as to
its financial responsibility and standing as Landlord may
reasonably require, and (iii) all terms and provisions upon
which the proposed subletting is to be made. Upon receipt from
Tenant of such requested information if Tenant is proposing a
sublease of the entire Premises, Landlord shall have an option
(the "Take Back Option") to be exercised in writing within
thirty (30) days after its receipt from Tenant of such
requested information, to cancel or terminate this Lease, as of
the date set forth in Landlord's notice of exercise of the Take
Back Option, which shall not be less than sixty (60) days nor
more than one hundred twenty (120) days following the giving of
such notice. In the event Landlord shall exercise the Take
Back Option, Tenant shall surrender possession of the entire
Premises, on the date set forth in such notice in accordance
with the provisions of this Lease relating to the surrender of
the Premises at the expiration of the Term. If Landlord
exercises the Take Back Option, Landlord shall pay to Tenant
the unamortized value of the tenant improvements located within
the Premises. Notwithstanding anything to the contrary
contained herein, Landlord's Take Back Option is applicable
only if Tenant's request for Landlord's consent to a sublease
involves a sublease of the entire Premises.
Section 9.14. Overloading and Nuisance. Tenant shall not
injure, overload, deface or otherwise harm the Premises, commit
any nuisance, permit the emission of any objectionable noise,
vibration or odor, make, allow or suffer any waste or make any
use of the Premises which is improper, offensive or contrary to
any law or ordinance or which will invalidate any of Landlord's
insurance.
SECTION 10
Casualty or Taking
Section 10.1. Termination. In the event that greater than
twenty-five (25) percent of the Building or the Lot shall be
taken by any public authority or for any public use or
destroyed by the action of any public authority (a "Taking")
then this Lease may be terminated by either Landlord or Tenant
effective on the effective date of the Taking. In the event
that the Premises shall be destroyed or damaged by fire or
casualty (a "Casualty") and if it will require in excess of 120
days from the date of the Casualty to restore the Premises,
this Lease may be terminated by either Landlord or Tenant by
notice to the other within thirty days after the casualty. In
the case of a Taking, such election, which may be made
notwithstanding the fact that Landlord's entire interest may
have been divested, shall be made by the giving of notice by
Landlord or Tenant to the other within thirty (30) days after
Landlord or Tenant, as the case may be, shall receive notice of
the Taking.
Section 10.2. Restoration. In the event of a Taking or a
Casualty, unless Landlord or Tenant shall exercise an election
to terminate provided in Section 10.1, this Lease shall
continue in force and a just proportion of the Annual Rent and
other charges hereunder, according to the nature and extent of
the damages sustained by the Premises, but not in excess of an
equitable portion of the net proceeds of any rental insurance
recovered by Landlord, shall be abated until the Premises, or
what may remain thereof, shall be put by Landlord in proper
condition for use subject to zoning and building laws or
ordinances then in existence, which, unless Landlord or Tenant
has exercised its option to terminate pursuant to Section 10.1,
Landlord covenants to do with reasonable diligence at
Landlord's expense. Landlord's obligations with respect to
restoration shall not require Landlord to expend more than the
net proceeds of insurance recovered or damages awarded for such
Casualty or Taking and made available for restoration by
Landlord's mortgagees. "Net proceeds of insurance recovered or
damages awarded" refers to the gross amount of such insurance
or damages less the reasonable expenses of Landlord in
connection with the collection of the same, including without
limitation, fees and expenses for legal and appraisal services.
Section 10.3. Award. Irrespective of the form in which
recovery may be had by law, all rights to damages or
compensation shall belong to Landlord except Tenant shall be
entitled to claim relocation costs and a claim for the value of
its improvements to the Premises provided that Tenant's claim
does not diminish Landlord's claim or award.
SECTION 11
Default
Section 11.1. Events of Default.
If: (a) Tenant shall default in the performance of any
of its obligations to pay the Annual Fixed Rent, Additional
Rent or any other sum payable hereunder and if such default
shall continue for ten (10) days after notice from Landlord
designating such default;
(b) if within thirty (30) days after notice from
Landlord to Tenant specifying any other default or defaults
Tenant has not commenced diligently to correct the default or
defaults so specified or has not thereafter diligently pursued
such' correction to completion;
(c) if any assignment for the benefit of creditors
shall be made by Tenant;
(d) if Tenant's leasehold interest shall be taken
on execution or other process of law in any action against
Tenant;
(e) if a lien or other involuntary encumbrance is
filed against Tenant's leasehold interest, and is not
discharged or bonded over, as the case may be, within ten (10)
days thereafter;
(f) if a petition is filed by Tenant for
liquidation, or for reorganization or an arrangement or any
other relief under any provision of the Bankruptcy Code as then
in force and effect; or
(g) if an involuntary petition under any of the
provisions of said Bankruptcy Code is filed against Tenant and
such involuntary petition is not dismissed within thirty (30)
days thereafter, then, and in any of such cases, Landlord and
the agents and servants of Landlord lawfully may, in addition
to and not in derogation of any remedies for any preceding
breach of covenant, immediately or at any time thereafter and
without demand or notice and with or without process of law
(forcibly, if necessary) enter into and upon the Premises or
any part thereof in the name of the whole, or mail a notice of
termination addressed to Tenant, and repossess the same as of
Landlord's former estate and expel Tenant and those claiming
through or under Tenant and remove its and their effects
without being deemed guilty of any manner of trespass and
without prejudice to any remedies which might otherwise be used
for arrears of rent or prior breach of covenant, and upon such
entry or mailing as aforesaid this Lease shall terminate.
Landlord, without notice to Tenant, may store Tenant's effects,
and those of any person claiming through or under Tenant at the
expense and risk of Tenant, and, if Landlord so elects, may,
with notice to Tenant, sell such effects at public auction or
private sale and apply the net proceeds to the payment of all
sums due to Landlord from Tenant, if any, and pay over the
balance, if any, to Tenant.
Section 11.2. Remedies. In the event that this Lease is
terminated under any of the provisions contained in Section
11.1, Tenant shall pay forthwith to Landlord, as compensation,
the present value of the excess of the total rent reserved for
the residue of the Term over the fair market rental value
(computed using a discount rate of eight (8%) percent) of the
Premises for the residue of the Term. In calculating the rent
reserved there shall be included, in addition to the Annual
Fixed Rent and Additional Rent, the value of all other
considerations agreed to be paid or performed by Tenant during
the residue. As additional and cumulative obligations after any
such termination, Tenant shall also pay punctually to Landlord
all the sums and shall perform all the obligations which Tenant
covenants in this Lease to pay and to perform in the same
manner and to the same extent and at the same time as if this
Lease had not been terminated. In calculating the amounts to be
paid by Tenant pursuant to the preceding sentence, Tenant shall
be credited with any amount paid to Landlord pursuant to the
first sentence of this Section 11.2 and also with the net
proceeds of any rent obtained by Landlord by reletting the
Premises, after deducting all Landlord's reasonable expenses in
connection with such reletting, including, without limitation,
all repossession costs, brokerage commissions, fees for legal
services and expenses of preparing the Premises for such
reletting, it being agreed by Tenant that Landlord may (i)
relet the Premises or any part or parts thereof for a term or
terms which may at Landlord's option be equal to or less than
or exceed the period which would otherwise have constituted the
balance of the Term hereof and may grant such concessions and
free rent as Landlord in its reasonable judgment considers
advisable or necessary to relet the same and (ii) make such
alterations, repairs and decorations in the Premises as
Landlord in its reasonable judgment considers advisable or
necessary to relet the same, and no action of Landlord in
accordance with the foregoing or failure to relet or to collect
rent under reletting shall operate or be construed to release
or reduce Tenant's liability as aforesaid. Landlord
acknowledges and agrees to use reasonable efforts to relet the
Premises provided, however, that any failure of Landlord to
relet the Premises shall not constitute a default hereunder.
Section 11.3. Remedies Cumulative. Except as otherwise
expressly provided herein, any and all rights and remedies
which Landlord may have under this Lease and at law and equity
shall be cumulative and shall not be deemed inconsistent with
each other, and any two or more of all such rights and remedies
may be exercised at the same time to the greatest extent
permitted by law.
Section 11.4. Landlord's Right to Cure Defaults. At any
time following ten (10) days' prior notice to Tenant (except in
cases of emergency when no notice shall be required), Landlord
may (but shall not be obligated to) cure any default by Tenant
under this Lease, and whenever Landlord so elects, all costs
and expenses incurred by Landlord, including reasonable
attorneys' fees, in curing a default shall be paid by Tenant to
Landlord as Additional Rent on demand, together with interest
thereon at the rate provided in Section 11.7 from the date of
payment by Landlord to the date of payment by Tenant.
Section 11.5. Effect of Waivers of Default. Any consent
or permission by Landlord to any act or omission which
otherwise would be a breach of any covenant or condition
herein, or any waiver by Landlord of the breach of any covenant
or condition herein, shall not in any way be held or construed
(unless expressly so declared) to operate so as to impair the
continuing obligation of any covenant or condition herein, or
otherwise operate to permit the same or similar acts or
omissions except as to the specific instance. The failure of
Landlord to seek redress for violation of, or to insist upon
the strict performance of, any covenant or condition of this
Lease shall not be deemed a waiver of such violation nor
prevent a subsequent act, which would have originally
constituted a violation, from having all the force and effect
of an original violation. The receipt by Landlord of any Annual
Rent hereunder with knowledge of the breach of any covenant of
this Lease shall not be deemed to have been a waiver of such
breach by Landlord or of any of Landlord's remedies on account
thereof, including its right of termination for such default.
Section 11.6. No Accord and Satisfaction. No acceptance
by Landlord of a lesser sum than the Annual Fixed Rent,
Additional Rent or any other sum then due shall be deemed to be
other than on account of the earliest installment of such rent
or charge due, unless Landlord elects by notice to Tenant to
credit such sum against the most recent installment due. Any
endorsement or statement on any check or any letter
accompanying any check or payment as rent or other charge shall
not be deemed an accord and satisfaction, and Landlord may
accept such check or payment without prejudice to Landlord's
right to recover the balance of such installment or pursue any
other remedy under this Lease or otherwise.
Section 11.7. Interest on Overdue Sums. If Tenant fails
to pay Annual Fixed Rent, Additional Rent or other sums payable
by Tenant to Landlord within ten (10) days of the due date
thereof (i.e., the due date disregarding any requirement of
notice from Landlord), the amount so unpaid shall bear interest
at a variable rate (the "Delinquency Rate") equal to four
percent (4%) in excess of the base rate (prime rate) of
BankBoston from time to time in effect commencing with the
eleventh (11th) day after the due date and continuing through
the day on which payment of such delinquent payment with
interest thereon is paid. If such rate is in excess of any
maximum interest rate permissible under applicable law, the
Delinquency Rate shall be the maximum interest rate permissible
under applicable law.
Section 11.8. Cost and Expenses: All costs and expenses
incurred by or on behalf of Landlord (including, without
limitation, attorneys' fees and expenses) in enforcing its
rights hereunder or occasioned by any default of Tenant shall
be paid by Tenant.
SECTION 12
Mortgages
Section 12.1. Rights of Mortgage Holders. No Annual Fixed
Rent, Additional Rent or any other charge which is paid more
than one month prior to the due date thereof and payments made
in violation of this provision shall (except to the extent that
such payments are actually received by a mortgagee in
possession or in the process of foreclosing its mortgage) be a
nullity as against such mortgagee and Tenant shall be liable
for the amount of such payments to such mortgagee, provided
however, that the foregoing clause shall not apply to the
Security Deposit and any mortgagee shall be governed by the
terms and conditions of this Lease with respect to same.
In the event of any act or omission by Landlord which
would give Tenant the right to terminate this Lease or to claim
a partial or total eviction, Tenant shall not exercise any such
right (a) until it shall have given notice, in the manner
provided in Section 13.1, of such act or omission to the holder
of any mortgage encumbering the Premises whose name and address
shall have been furnished to Tenant in writing, at the last
address so furnished, and (b) until a reasonable period of time
for remedying such act or omission shall have elapsed following
the giving of such notice, provided that following the giving
of such notice, Landlord or such holder shall, with reasonable
diligence, have commenced and continued to remedy such act or
omission or to cause the same to be rendered. Notwithstanding
the foregoing, such "reasonable period of time" shall not
extend beyond thirty (30) days unless Landlord or such holder
has commenced and diligently pursues to completion the remedy
of such act or omission within said thirty (30) day period.
The provisions contained in this paragraph shall not affect any
of Tenant's rights to terminate this Lease under Section 3.7 of
this Lease.
In the event any proceedings are brought for the
foreclosure of, or in the event of exercise of the power of
sale under, any mortgage now or hereafter encumbering the
Premises, Tenant shall attorn to the purchaser upon such
foreclosure or sale or upon any grant of a deed in lieu of
foreclosure and recognize such purchaser as Landlord under this
Lease.
Section 12.2. Lease Subordinate. At Landlord's election,
this Lease, and all rights of Tenant hereunder, shall be
subject and subordinate to all mortgages and/or ground leases
which may now or hereafter affect the Property whether or not
such mortgages or leases shall also cover other lands and/or
buildings, to each and every advance made or hereafter to be
made under such mortgages, and to all renewals, modifications,
replacements and extensions of such mortgages and leases and
all consolidations of such mortgages, provided that, with
respect to any such mortgage or lease hereafter placed on the
Property, Landlord shall deliver to Tenant an agreement, in
form and substance reasonably acceptable to such holder or
lessor and Tenant, by such holder or lessor to the effect that,
subject to qualifications of the type set forth in the second
sentence of paragraph (b) hereof, all of Tenant's rights
hereunder shall be recognized by such holder or lessor. Such
subordination shall be automatic and without need for any
additional action or documentation. Without derogating from
the foregoing, in confirmation of such subordination, and
subject to the foregoing condition, Tenant shall promptly
execute, acknowledge and deliver any instrument that Landlord,
the holder of any such mortgage or the lessor under any such
lease or any of their respective successors in interest may
reasonably request to evidence such subordination. Landlord
agrees to request the holder of the existing mortgage on the
Property to deliver an agreement, in form and substance
acceptable to such holder, by such holder to the effect that,
subject to the qualifications of the type set forth in the
second sentence of paragraph (b) hereof, that such holder
recognizes all of Tenant's rights hereunder provided that
Tenant is not in default (beyond any applicable notice and
grace period) of any of the terms, provisions, covenants,
agreements and conditions to be observed, performed and
complied with by Tenant under this Lease. Any mortgage to
which this Lease is, at the time referred to, subject and
subordinate, is herein called "Superior Mortgage" and the
holder of a Superior Mortgage is herein called "Superior
Mortgagee"; and any lease to which this Lease is, at the time
referred to, subject and subordinate is herein called "Superior
Lease" and the lessor of a Superior Lease or its successor in
interest, at the time referred to, is herein called "Superior
Lessor".
(b) If any Superior Mortgagee or Superior Lessor
or the nominee or designee of any Superior Mortgagee or
Superior Lessor shall succeed the rights of Landlord (for the
purposes of this paragraph (b), the "Preceding Landlord") under
this Lease, whether through possession or foreclosure action or
delivery of a new lease or deed, or otherwise, then Tenant
shall attorn to and recognize such party (herein called
"Successor Landlord") so succeeding to the Preceding Landlord's
rights as Tenant's landlord under this Lease and, upon such
Successor Landlord's request, Tenant shall promptly execute and
deliver any instrument that such Successor Landlord may
reasonably request to evidence such attornment provided that
such Successor Landlord gives Tenant a written agreement to
accept Tenant's attornment and recognizes Tenant's rights under
this Lease (subject to the qualifications) hereinafter set
forth). Upon such attornment, this Lease shall continue in
full force and effect as a direct lease between the Successor
Landlord and Tenant upon all of the terms, conditions and
covenants as are set forth in this Lease, except that the
Successor Landlord (unless formerly the landlord under this
Lease or its nominee or designee) shall not be (a) liable in
any way to Tenant for any act or omission, neglect or default
on the part of the Preceding Landlord under this Lease, (b)
responsible for any monies owing by or on deposit with the
Preceding Landlord to the credit of Tenant (except for the
Security Deposit to the extent that such Security Deposit is
actually received by and is in possession of the Successor
Landlord, which shall include the delivery of the Letter under
the provisions of Section 13.8 of this Lease), (c) subject to
any counterclaim or bound by any modification of this Lease
subsequent to such Superior Mortgage or Lease which was not
approved in writing by the Superior Mortgagee or Superior
Lessor, or by any previous prepayment of Annual Fixed Rent or
Additional Rent for more than one (1) month which was not
approved in writing by the Superior Landlord's interest in the
Property and the rents, income, receipts, revenues, issues and
profits issuing from such Property, (f) responsible for the
performance of any work to be done by the Preceding Landlord
under this Lease to render the Premises ready for occupancy by
the Tenant, (g) required to remove any person occupying the
Premises or any part thereof, except if such person claims by
through or under the Successor Landlord.
SECTION 13
Miscellaneous Provisions
Section 13.1. Notices from One Party to the
Other. Whenever, by the terms of this Lease, notices, consents
or approvals shall or may by given either to Landlord or to
Tenant, such notices, consents or approvals shall be in writing
and shall be delivered in hand, sent by registered or certified
mail, return receipt requested, postage prepaid or sent by an
overnight express courier service which provides evidence of
delivery or attempted delivery;
If intended for Landlord, delivered or addressed to
Landlord at the Original Address of Landlord (or to such other
address as may from time to time hereafter be designated by
Landlord by like notice).
If intended for Tenant, delivered or addressed to
Tenant at the Original Address of Tenant until the Commencement
Date and thereafter to the Premises (or to such other address
or addresses as may from time to time hereafter be designated
by Tenant by like notice).
All such notices shall be effective when delivered
or tendered for delivery at the address to which the same were
sent.
Section 13.2. Lease Not to be Recorded; Notice of
Lease. Tenant agrees that it will not record this Lease. If the
Term of this Lease, including options, exceeds seven years,
Landlord and Tenant agree that, on the request of either, they
will enter and record a notice of lease in form reasonably
acceptable to both parties.
Section 13.3. Bind and Inure; Limitation of Landlord's
Liability. 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. No owner of the Lot shall be liable under this
Lease except for breaches of Landlord's obligations occurring
while owner of the Lot. The obligations of Landlord shall be
binding upon the assets of Landlord which comprise the Lot but
not upon other assets of Landlord. No individual, member,
partner, trustee, stockholder, officer, director, employee or
beneficiary of Landlord shall be personally liable under this
Lease and Tenant shall look solely to Landlord's interest in
the Lot in pursuit of its remedies upon an event of default
hereunder, and the general assets of Landlord and its members,
partners, trustees, stockholders, officers, employees or
beneficiaries of Landlord shall not be subject to levy,
execution or other enforcement procedure for the satisfaction
of the remedies of Tenant.
Section 13.4. Acts of God. In any case where either party
hereto is required to do any act, delays caused by or resulting
from acts of God, war, civil commotion, fire, flood or other
casualty, labor difficulties, shortages of labor, materials or
equipment, government regulations, unusually severe weather, or
other causes beyond such party's reasonable control shall not
be counted in determining the time during which work shall be
completed, whether such time be designated by a fixed date, a
fixed time or a "reasonable time", and such time shall be
deemed to be extended by the period of such delay.
Section 13.5. Landlord's Default. Landlord shall not be
deemed to be in default in the performance of any of its
obligations hereunder unless it shall fail to perform such
obligations and unless within thirty (30) days after notice
from Tenant to Landlord specifying such default Landlord has
not commenced diligently to correct the default so specified or
has not thereafter diligently pursued such correction to
completion. Tenant shall have no right, for any default by
Landlord, to offset or counterclaim against any rent due
hereunder. The provisions contained in this paragraph shall
not affect any of Tenant's rights to terminate this Lease under
Section 3.7 of this Lease.
Section 13.6. Brokerage. Landlord shall pay a brokerage
commission to Fallon, Hines & O'Connor, Inc. for the brokerage
services rendered in connection with this Lease. Tenant and
Landlord warrant and represent to the other that neither has
had any dealings with any broker or agent in connection with
this Lease other than Fallon, Hines & O'Connor, Inc. Tenant
and Landlord agree to defend with counsel reasonably approved
by the other, hold harmless and indemnify the other from and
against any and all cost, expense or liability for any
compensation, commissions and charges which may be asserted
against the other as a result of the other's breach of this
warranty.
Section 13.7. Miscellaneous. This Lease shall be governed
by and construed in accordance with the laws of the
Commonwealth of Massachusetts. There are no prior oral or
written agreements between Landlord and Tenant affecting this
Lease.
Section 13.8. Security Deposit. In order to provide
security against Tenant's default under Section 11.1(a) of the
Lease (a "Monetary Default"), Tenant shall furnish Landlord on
the Escrow Release Date with, and shall maintain in force and
effect throughout the Term of this Lease, an irrevocable
"clean" Letter of Credit which may provide for multiple draws,
reductions and reinstatement of the stated amounts (hereinafter
together with any renewal or substitution thereof in accordance
with the provisions hereof referred to as "Letter") or cash
("Cash") in an amount equal to the "Applicable Amount" (as said
term is hereinafter defined) from time to time required
hereunder in the case of a Letter issued by Fleet Bank or a
similar financial institution ("Issuer") in the greater Boston,
Massachusetts area which is approved and accepted by Landlord
(an "Approved Issuer"). Landlord shall deliver the Security
Deposit to the holder of any first mortgage encumbering the
Property and the Security Deposit will be held by the holder of
any mortgage encumbering the Property for and during the Term
and shall be returned to Tenant, within thirty (30) days after
the expiration of the Term of this Lease provided there exists
no Monetary Default. As used herein, the term "Applicable
Amount" shall mean (i) $750,000.00 beginning on the Escrow
Release Date through the end of the 36th full calendar month
immediately following the Commencement Date, (ii) provided that
the "4th Lease Year Conditions" (as hereinafter defined are
completely satisfied, $375,000.00 during months 37 through 72
of the Term, (iii) provided that the "7th Lease Year
Conditions") (as hereinafter defined) are completely satisfied,
$187,500.00 for the remainder of the Term of this Lease. As
used herein, the term "4th Lease year Conditions" shall mean
that at the commencement of the fourth (4th) lease year of the
Term of this Lease, based on a review of either Tenant's most
recent 10Q or 10K statements filed with the Security Exchange
Commission, Tenant has $10,000,000.00 in unrestricted cash,
cash equivalents and marketable securities on hand and a
"Current Assets" to "Current Liabilities", as said terms are
hereinafter defined, ratio of 2.0:1.0. The term "7th Lease
Year Conditions" shall mean that at the commencement of the
seventh (7th) lease year of the Term of this Lease, Tenant has
$10,000,000.00 in unrestricted cash, cash equivalents and
marketable securities on hand and a "Current Assets" to
"Current Liabilities", as said terms are hereinafter defined,
ratio of 2.0:1.0. As used herein, the term "Current Assets"
shall mean: unrestricted cash, cash equivalents, marketable
securities, accounts receivable, inventories, prepaid expenses
and other current assets under generally accepted accounting
practices. "Current Liabilities" shall mean: accounts
payable, accrued royalties, accrued professional fees, accrued
incentive compensation, accrued restructuring costs, current
portion of deferred revenue, current maturities of long term
debt and other accrued expenses under generally accepted
accounting practices.
Tenant shall have the right to call upon Landlord to
apply all or any part of the Security Deposit to cure any
Monetary Default. If all or any part of the Security Deposit
is applied to cure the Monetary Default, Tenant shall within
ten (10) days from any request by Landlord restore the Security
Deposit to the Applicable Amount, and notwithstanding the
occurrence of a Monetary Default, Tenant shall not be deemed in
default hereunder unless and until Tenant shall fail to restore
the amount of the Security Deposit.
The Security Deposit shall be delivered by Landlord to
Landlord's successor in interest under the Lease and upon any
such delivery and the acknowledgment of such successor that
such successor holds the Security Deposit under the terms and
conditions of the Lease, Tenant shall release Landlord herein
named of any and all liability with respect to the Security
Deposit, its application and return.
The Letter shall be addressed to and for the benefit of
the Landlord under this Lease from time to time and be in form
and substance satisfactory to Landlord in its reasonable
discretion. In the event of a Monetary Default by Tenant under
this Lease, Landlord may draw upon an amount necessary to cure
the Monetary Default upon certification by Landlord to the
Issuer that Landlord is entitled to apply all or any part of
the proceeds of the Letter to the extent required to cure the
Monetary Default.
In the event of any Monetary Default by Tenant under this
Lease, Landlord shall provide Tenant with two (2) Business Days
written notice prior to drawing down on the Letter. In the
event of any Monetary Default by Tenant under this Lease, if
Landlord applies any part of the proceeds of the Letter or the
Cash to cure any default of Tenant, Tenant shall, upon demand,
cause the Letter or the Cash to be replenished and reinstated
to the extent of the amount so drawn upon and applied in order
that Landlord shall, at all times, have the full Applicable
Amount of the Letter or the Cash available for the purposes
hereof during the Term of this Lease. The Letter shall, in
each instance, and for each year of the Term of this Lease, be
in effect and, at Tenant's sole cost and expense, be renewed by
Tenant and decreased to the required Applicable Amount in no
event later than sixty (60) days prior to its date of
expiration. Tenant's failure to maintain the Letter in force
and effect in the Applicable Amounts during the periods of time
required hereunder shall, if such failure continues for more
than ten (10) days after notice thereof from Landlord,
constitute a default under this Lease. If, on or before the
sixtieth (60th) day prior to the expiration date of a Letter,
Tenant shall have failed to deliver to Landlord an original
fully executed renewal or extension of the Letter (or a
substitute letter of credit from an Approved Issuer), in each
case, having a term of at least one year and such failure shall
continue for more than ten (10) days after Landlord has given
Tenant notice of such failure, Landlord, at its option, may,
but shall not be required to without further notice to Tenant,
draw down upon the Letter in its entirety in which event
Landlord may, in addition to all other rights and remedies
which it may have on account of such default, treat all sums
drawn under such Letter as a Cash Security Deposit governed by
and to be applied and/or retained by Landlord pursuant to the
provisions of this paragraph. All references herein to the
Letter shall also mean and include all renewals and
replacements thereof and all modifications and extensions
thereof. Any renewal, extension or substitution of a Letter
shall be in form and substance satisfactory to Landlord, in its
reasonable discretion, and shall be issued by an Approved
Issuer. Landlord will not unreasonably delay or withhold
approval of the form of any substitute Letter which is in the
same form as that previously approved by Landlord. If the
Property is sold and if the purchaser and seller together
request in writing that Tenant obtain a modification to a
Letter designating the purchaser as the "beneficiary"
thereunder in substitution for the then named beneficiary,
Tenant agrees to promptly obtain and deliver such amendment to
such purchaser at purchaser's sole cost and expense. Tenant
hereby agrees that all costs and expenses involved in obtaining
and maintaining the Letters contemplated by this paragraph
shall be borne solely and exclusively by Tenant.
Notwithstanding anything to the contrary contained herein, if
Tenant fails to remove Tenant's Removable Property as required
hereunder at such time as Tenant surrenders and yields up its
right and interest in the Premises, then Landlord shall have
the right to draw down all or any portion of the Security
Deposit necessary to cover the costs and expenses associated
with the removal of Tenant's Removable Property.
Section 13.9. Park Common Expenses.
(a) Tenant shall pay to Landlord as Additional Rent
monthly with each payment of Annual Fixed Rent an amount equal
to one twelfth (1/12th) of the annual amount of the "Lot's
Allocable Share" (as defined in Section 13.9(b))of the "Park
Common Expenses" (as said term is hereinafter defined). As
used herein, the term "Park Common Expenses" shall mean "Common
Expenses" as said term is defined in the Park Covenants;
provided, however, the term "Park Common Expenses" shall not
include any costs relating to the remediation of any hazardous
materials on the Lot and the Leasehold Parking Area in
connection with closure of the landfill on the Landfill Lot.
Landlord shall use diligent efforts to cause the owner of the
Park Common Property to maintain and repair the Park Common
Property insofar as it services the Premises in good operating
condition and repair. As used herein, the term "Park Common
Property" shall mean the "Infrastructure Easement Areas" and
the "Common Land", as such terms are defined in the Park
Covenants.
(b) As used in this Lease, the term "Lot's Allocable
Share" shall mean a percentage equal to that percentage which
is attributable to the Premises under the Park Covenants in
determining the Premises' share of Common Expenses under the
Park Covenants but in no event shall the Lot's Allocable Share
ever exceed ten (10%) percent.
(c) At the beginning of every calendar year and at the
commencement of the Term, Landlord shall deliver to Tenant its
good faith estimate of the expenses (i.e. the Park Common
Expenses) referenced in this Section 13.9 for such year, and
Tenant shall make monthly payments based on that amount. As
soon as practicable after the end of each calendar year,
Landlord shall render a statement (the "Park Common Expense
Statement") showing for the preceding calendar year or fraction
thereof, as the case may be, the actual annual expenses for
such matters for such year or fraction, and thereupon any
balance owed by Tenant or excess paid by Tenant under this
Section shall be paid to Landlord or credited to Tenant, as the
case may be, on the next rent payment date. Upon request of
Tenant made within ninety (90) days after delivery of the Park
Common Expense Statement, Tenant shall have the right to audit
Landlord's books and records with respect to such Park Common
Expense Statement. If such audit discloses an overstatement of
Park Common Expenses of more than five (5%) percent, Landlord
shall reimburse Tenant for Tenant's reasonable out-of-pocket
expenses for such audit. Landlord shall credit to Tenant the
amount of any overpayment of Park Common Expenses by Tenant
against subsequent obligations of Tenant with respect to Park
Common Expenses (or refund such overpayment if the Term of this
Lease has ended and Tenant has no further obligation to
Landlord).
Section 13.10. Leasehold Parking Area. It is expressly
understood and agreed by and between Landlord and Tenant that
this Lease, as to the Leasehold Parking Area, is a sublease and
is subject and subordinate to the Ground Lease with respect to
the Leasehold Parking Area and that no right, power or
privilege granted to Tenant hereunder with respect to the
Leasehold Parking Area may be exercised or enjoyed by Tenant
and no term, covenant or condition of this Lease insofar as it
relates to the Leasehold Parking Area benefiting Tenant shall
be operative if and to the extent that such exercise, enjoyment
or operation would not be permitted by or would violate or be
in conflict with any term, covenant or condition of the Ground
Lease. Without limiting the generality of the foregoing, it is
expressly understood and agreed that all rights of Tenant in
and to any eminent domain awards in any way related to the
Leasehold Parking Area shall be, and is hereby expressly made,
subject and subordinate to the rights of the Landlord under the
Ground Lease. Landlord covenants and agrees that Landlord will
not violate any of the terms, covenants or conditions of the
Ground Lease. The cost of any and all insurance required to be
carried by Landlord under the Ground Lease or which Landlord
carries in connection with the Ground Lease shall be included
in the costs payable by Tenant as Additional Rent under this
Lease. From and after the Term Commencement Date and to the
maximum extent, this agreement may be made effective according
to law, Tenant agrees to indemnify and save harmless the Town
of Framingham, as landlord under the Ground Lease (the "Ground
Lease Landlord") from and against all claims of whatever nature
arising from any act, omission or negligence of Tenant,
Tenant's contractors, licensees, agents, servants, employees or
customers, or anyone claiming by, through or under Tenant so
long as Tenant or any occupant claiming under Tenant is in
occupancy or is using any part of the entire Leasehold Parking
Area where such accident, injury or damage results or is
claimed to have resulted from any act, omission or negligence
on the part of Tenant or Tenant's contractors, licensees,
agents, servants, employees or customers or anyone claming by,
through or under Tenant. The foregoing indemnity and hold
harmless agreement shall include indemnity against all costs
and expenses and liabilities incurred in or in connection with
any claim or proceeding brought thereon and the defense thereof
with counsel acceptable to the Ground Lease Landlord. To the
maximum extent, this agreement may be made effective according
to law, Tenant agrees to use and occupy the Leasehold Parking
Area and any other part of the entire Leasehold Parking Area
which the Tenant is permitted to use hereunder at Tenant's own
risk and the Ground Lease Landlord shall have no responsibility
or liable for any loss or damage to fixtures or other personal
property of Tenant or any person claiming by, through or under
Tenant.
Section 13.11. Hazardous Materials. Tenant shall not
(either with or without negligence) cause or permit the escape,
disposal, release or threat of release of any biologically or
chemically active or other Hazardous Materials (as said term is
hereafter defined) on, in, upon or under the Property or the
Premises except in compliance with all laws, rules,
regulations, ordinances and codes, including, without
limitation, the Environmental Laws. Tenant shall not allow the
generation, storage, use, disposal or transfer of such
Hazardous Materials in any manner not sanctioned by law or by
the highest standards prevailing in the industry for the
generation, storage, use, disposal and transfer of such
Hazardous Materials, nor allow to be brought into the Property
any such Hazardous Materials except for those certain chemicals
used in the ordinary course of Tenant's business and more
particularly identified on Exhibit O attached hereto. Tenant
shall update the list of Tenant's Chemicals on an annual basis
and/or as Landlord reasonably requests. If any lender or
governmental agency shall ever require testing to ascertain
whether or not there has been any release of Hazardous
Materials, then the reasonable costs thereof shall be
reimbursed by Tenant to Landlord upon demand as additional
charges but only if such requirement applies to the Premises or
may be the result of the acts or omissions of Tenant. In
addition, Tenant shall execute affidavits, representations and
the like, from time to time, at Landlord's request concerning
Tenant's best knowledge and belief regarding the presence of
Hazardous Materials on the Premises.
The Tenant shall, at its own expense, remove, clean up,
remedy and dispose of (in compliance with all applicable laws,
rules and regulations) all Hazardous Materials generated or
released by the Tenant or its officers, directors, employees,
contractors, servants, invitees, agents or any other person
acting under Tenant during the Term of this Lease (or during
such term as the Tenant is in occupancy or possession of any
part of the Premises, the Building or the Property) at or from
the Premises, the Building or the Property in compliance with
all Environmental Laws (as said term is hereafter defined) and
further, shall remove, clean up, remedy and dispose of all
Hazardous Materials located at, upon, under, within or in the
Premises, the Building or the Property generated by or
resulting from its operations, activities or processes during
the term of this Lease (or such other periods of time as the
Tenant may be in occupancy or in possession of the Premises or
any portion of the Property or Building), in compliance with
all Environmental Laws. In performing its obligations
hereunder, the Tenant shall use best efforts to avoid
interference with the use and enjoyment of the Building and
the Property by other tenants and occupants thereof. The
provisions hereof shall survive expiration or termination of
this Lease.
The Tenant shall indemnify, defend and save harmless the
Landlord and its members, officers, directors, shareholders,
employees, contractors, servants, invitees, representatives
and agents from and against all loss, costs, damages, claims,
proceedings, demands, liabilities, penalties, fines and
expenses, including without limitation, reasonable fees and
costs for attorneys' fees, consultants' fees, litigation costs
and clean-up costs asserted<PAGE>
against or incurred by the Landlord, its members, officers,
directors, shareholders, employees, contractors, servants,
invitees representatives or agents at any time by reason of or
arising out of (i) any release or threat of release of any
Hazardous Materials at, in, upon, under or from the Premises,
the Building or the Property where such release or threat of
release is the result of or alleged to result from the acts or
omissions of the Tenant or its agents, servants, employees,
contractors or invitees, or (ii) any violation or alleged
violation of any Environmental Laws governing Hazardous
Materials where such violation or alleged violation is the
result of or alleged to result from the acts or omissions of
the Tenant or its agents, servants, employees, contractors,
invitees, or any other person acting under Tenant. The
indemnities set forth in this Section shall survive expiration
or termination of this Lease.
In addition to the requirements set forth above, the
Tenant shall, within ten (10) days of receipt, provide to the
Landlord copies of any inspection or other reports,
correspondence, documentation, orders, citations, notices,
directives, or suits from or by any governmental authority or
insurer regarding non-compliance with or potential or actual
violation of Environmental Laws. The Landlord hereby
expressly reserves the right to enter the Premises and all
other portions of the Building and the Property in order to
perform inspections and testing of the air, soil and
groundwater for the presence or existence of Hazardous
Materials.
As used herein, the term "Hazardous Materials" shall mean
and include, without limitation, any material or substance
which is (i) petroleum, (ii) asbestos, (iii) designated as a
"hazardous substance" pursuant to Section 311 of the Federal
Water Pollution Control Act, 33 U.S.C. SS 1251 et seq. (33
U.S.C. SS 1321) or listed in SS 307 of the Federal Water
Pollution Control Act (33 U.S.C. SS 1317), (iv) defined as a
"hazardous waste" pursuant to Section 1004 of the Resource
Conservation and Recovery Act, 42 U.S.C. SS 6901 et seq. (42
U.S.C. SS 6903), (v) defined as a "hazardous substance"
pursuant to Section 101 of the Comprehensive Environmental
Response, Compensation, and Liability Act, 42 U.S.C. SS 9601 et
seq. (42 U.S.C. SS 9601), as amended and regulations
promulgated thereunder, or (vi) defined as "oil" or a
"hazardous waste", a "hazardous substance", a "hazardous
material" or a "toxic material" under any other law, rule or
regulation applicable to the Property, including, without
limitation, Chapter 21E of the Massachusetts General Laws, as
amended and the regulations promulgated thereunder. As used
herein, the term "Environmental Laws" shall mean, without
limitation, each and every law, rule, order, statute or
regulation described above in this Section, together with (i)
any amendments thereto, or regulations promulgated thereunder
and (ii) any other laws pertaining to the protection of the
environment or governing the use, release, storage, generation
or disposal of Hazardous Materials, whether now existing or
hereafter enacted or promulgated.
Section 13.12. Landlord's Holdover Contribution. If the
Commencement Date should fail to occur on or before the
Anticipated Term Commencement Date as such date may be extended
by the Force Majeure Extension, then Landlord shall pay
Landlord's Holdover Contribution to Tenant on the first day of
each month in arrears commencing on the first day of the month
next succeeding the Anticipated Term Commencement Date, as
extended; provided, however, in no event shall Landlord have
any obligation to pay any payment of Landlord's Holdover
Contribution unless no default of Tenant shall have occurred
and be continuing under this Lease. Landlord's obligation to
continue to pay Landlord's Holdover Contribution to Tenant
shall cease upon the earlier to occur of the Commencement Date
or the date of any termination of this Lease.
WITNESS the execution hereof under seal as of the day and
year first above written.
Landlord: NDNE 9/90 CORPORATE CENTER LLC
By: /s/
________________________
Its: Executive Vice President
________________________
Tenant: AQUILA BIOPHARMACEUTICALS, INC.
By: /s/ Alison Taunton-Rigby
________________________
Its: President
________________________
NDNE0023/15
September 26, 1997
The Company agrees to file copies of any exhibits to the Lease with
the Commission upon request.
EXHIBIT 10.2
AQUILA BIOPHARMACEUTICALS, INC.
Employee Retention Agreement
September 2 1997
Alison Taunton-Rigby, Ph.D.
8 Farrar Road
Lincoln, MA 01713
Dear Dr. Taunton-Rigby:
You are currently an officer of Aquila Biopharmaceuticals,
Inc., (the "Company"). In order to induce you to remain in its
employ, the Company agrees that you shall receive the severance
benefits as provided in this letter agreement (the "Agreement")
in the event your employment with the Company is terminated under
the circumstances described below. Capitalized terms not
otherwise defined herein have the meanings ascribed to them in
Section 5.
Reference is made to the Employment Agreement between you
and the Company dated April 6, 1995 (the "Employment Agreement").
1. Term of the Agreement. The term of this Agreement (the
"Term") shall commence as of the date hereof and shall continue
in effect until the later of July 1, 2002 or 24 months after any
Change of Control that may occur prior to July 1, 2002.
Notwithstanding the termination of your employment, any
obligations hereunder which by their terms continue (such as
severance benefits) shall survive such termination. This
Agreement does not constitute a contract of employment. Any
termination of your employment by the Company or by you during
the Term shall be communicated by written notice of termination
("Notice of Termination") to the other party hereto in accordance
with Section 8. The "Date of Termination" shall mean the
effective date of such termination as specified in the Notice of
Termination (provided that no such Notice of Termination shall
specify an effective date more than 180 days after the date of
such Notice of Termination) nor, except in the event of a
termination for Cause or Good Reason, less than thirty (30) days.
2. Continuance of Benefits. In the event of a Change in
Control, following such Change of Control and for a three year
period thereafter the Company shall arrange to provide you with
life, disability, dental, accident and group health insurance
benefits substantially similar with those you were receiving
immediately prior to the Change of Control. <PAGE>
3. Change in Employment Status.
(a) Any termination of your employment following a
Change in Control of the Company by the Company or by you during
the Term shall be communicated by written notice of termination
("Notice of Termination") to the other party hereto in accordance
with Section 8, which Notice of Termination shall specify the
provisions of this Agreement, if any, upon which such termination
is based.
(b) You shall be entitled to the benefits provided in
Section 4 if (but only if) the following event (a "Trigger
Event") occurs: a Change in Control shall have occurred during
the Term and your employment with the Company is subsequently
terminated or terminates for any reason within 24 months after
such Change in Control, unless such termination is (A) because of
your death or Disability (as defined in Section 5(b)), (B) by the
Company for Cause (as defined in Section 5(c)), or (C) by you
other than for Good Reason (as defined in Section 5(d)).
4. Compensation Upon Termination.
(a) In the event of the occurrence of a Trigger Event,
the Company will pay to you within thirty (30) days of the Date
of Termination an amount equal to the product of (i) three (3)
times (ii) the sum of (A) your annual base salary rate in effect
immediately prior to the Trigger Event (or such higher rate as
may have been in effect within the 90 days prior to the Notice of
Termination) plus (B) an annualized amount equal to the aggregate
bonus paid to (or accrued for) you by the Company during the
three years preceding such Trigger Event or such shorter period
of your employment divided by the lesser of three (3) or the
period of your employment (expressed in years and any fraction
thereof).
(b) In the event of a Trigger Event, following such
Trigger Event and for a three (3) year period after the Date of
Termination, the Company shall arrange to provide you with life,
disability, dental, accident and group health insurance benefits
substantially similar to those which you were receiving
immediately prior to the Trigger Event. Notwithstanding the
foregoing, the Company shall not provide any benefit otherwise
receivable by you pursuant to this paragraph (b) or Section 2
above if an equivalent benefit is actually received by you
through an entity to which you provide services during the
thirty-six (36) month period following your termination, and any
such benefit actually received by you shall be reported to the
Company. For purposes of the application of the Company's
benefits, after termination of employment, you shall be treated,
to the extent that applicable law pertaining to the particular
benefit plan permits the Company to do so, as if you had remained
in the employ of the Company, with a total annual salary at the
base salary rate used for the determination of your severance
amount above, and service
- 2 -<PAGE>
or similar credits, if any, will continue to accrue during such
period as if you had remained in the employ of the Company. If
in spite of the provisions of this clause, benefits under any
benefit plan shall not be payable or provided to you under such
plan (or to your dependents, beneficiaries or estate), because
you are no longer deemed an employee of the Company, then the
Company shall pay or provide payment of such benefits to you or
your dependents, beneficiaries or estate. To the extent that
applicable law does not permit any Company benefit referred to
above to be provided, paid or funded through the applicable
Company benefit plan, then the Company shall not be required to
provide such benefit through such plan and shall only be required
to provide in the case of a benefit the tax treatment of which is
enhanced by such plan an amount equal to what would have been the
Company's initial contribution to such plan and not the
equivalent benefit. In addition, the Company shall maintain with
a reputable carrier directors and officers liability coverage for
your benefit with coverage amounts at least equal to those in
place prior to the Trigger Event and, unless and to the extent
available, on terms at least as favorable as the terms of such
coverage prior to the Trigger Event, until such time as all
applicable statutes of limitations shall have expired.
(c) Immediately prior to, but subject to, a Trigger
Event, all of your then outstanding options to purchase common
stock of the Company shall be accelerated so that they shall
become immediately exercisable in full, provided in the event of
a Trigger Event as a result of a tender offer, such options shall
become fully exercisable in a timely manner such that you may
participate in such tender offer at any stage.
(d) The Company shall pay to you all legal fees and
expenses incurred by you in connection with the execution of this
Agreement or seeking to obtain, interpret or enforce any right or
benefit provided by this Agreement.
(e) For purposes of this Section 4(e), the terms
"parachute payment," "excess parachute payment," "present value,"
and "base amount" have the meanings ascribed in Section 280G of
the Internal Revenue Code of 1986, as amended (the "Code") and as
in effect at the date of this Agreement. The term "excise tax"
means the tax imposed by Code Section 4999.
(i) In the event that
A. excise tax is due with respect to one or
more payments made pursuant to this Agreement, and
B. the present value of the excess of
parachute payments to the Executive (whether or
not pursuant to this Agreement) over the excise
tax which would be payable as a result of
Executive's receipt of such payments is less than
three times Executive's base amount, and
- 3 -<PAGE>
C. the present value of the parachute
payments to the Executive which are payable
without regard to this Agreement are less than
three times Executive's base amount,
then, and only then, subsection (ii) below shall apply.
(ii) If this subsection applies, any parachute
payments otherwise payable to the Executive hereunder shall be
limited as follows:
A. No parachute payments shall be payable
to the Executive under this Agreement to the
extent that the total of such parachute payments
and any parachute payments otherwise payable to
the Executive by the Company would equal or exceed
in their present value three times the Executive's
base amount. In the event that the present value
of such payments equals or exceeds such amount,
the provisions set forth below will apply and
parachute payments payable to the Executive under
this Agreement will be made only in accordance
with this subsection notwithstanding any other
provision to the contrary in this Agreement.
B. Not later than thirty (30) days after
the date of termination, the Company will provide
the Executive with a schedule specifying the
present value of all amounts, benefits and rights
("Severance Benefits") to be provided the
Executive under this Agreement (specifying the
section hereof under which each such payment is to
be made) and any other payments otherwise payable
to the Executive by the Company on or after the
change in control which, in the Company's opinion,
could constitute parachute payments under
Section 280G. No payments under this Agreement
shall be made until after thirty (30) days from
the receipt of such schedule by the Executive. At
any time prior to the expiration of said 30-day
period, the Executive shall have the right to
select from all or part of any category of payment
to be made under this Agreement those payments to
be made to the Executive in an amount the present
value of which (when combined with the present
value of any other payments otherwise payable to
the Executive by the Company that may be deemed to
be parachute payments) is less than three times
the Executive's base amount. If the Executive
fails to exercise her right to make a selection,
the selection shall be made by the Company.
- 4 -<PAGE>
C. The references to Code Sections 280G and
4999 are specific references to such sections as
in effect on the date of this Agreement. If
either section is amended prior to the expiration
or termination of this Agreement, or replaced by a
successor statute, the limitations imposed by this
Section 4(e) upon payments to be made to the
Executive under this Agreement shall be deemed
modified without further action of the parties so
as to provide only for such limitations that are
consistent with such amendment(s) or successor
statute(s), as the case may be. In the event that
Section 4999, or any successor statute, is
repealed, this Section 4(e) shall cease to be
effective on the date of such repeal. The parties
to this Agreement recognize that final Treasury
Regulations under Section 280G may affect the
amounts that may be paid hereunder and agree that,
upon issuance of such final Regulations, this
Section 4(e) may be modified as in good faith
deemed necessary in light of the provisions of
such Regulations to achieve the purposes hereof,
and that consent to such modification(s) shall not
be unreasonably withheld.
(f) You shall not be obligated to seek to mitigate the
amount of any payments provided for in this Agreement by seeking
alternative employment or otherwise.
5. Certain Definitions.
As used herein, the following terms shall have the
following respective meanings:
(a) Change in Control. A "Change in Control" shall
occur or be deemed to have occurred only if any of the following
events occur:
(i) any "person," as such term is used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), (other than (A) the Company, (B)
any "group" including you, (C) any employee benefit plan of the
Company, or (D) any corporation owned directly or indirectly by
the stockholders of the Company in substantially the same
proportion as their ownership of stock of the Company) is or
becomes the "beneficial owner" (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, of securities of the
Company representing in the aggregate 20% or more of either (A)
the combined voting power of the Company's then outstanding
securities or (B) the then outstanding shares of common stock of
the Company;
- 5 -<PAGE>
(ii) individuals who, as of the date hereof,
constitute the Board of Directors (the "Board") (as of the date
hereof, the "Incumbent Board") cease for any reason to constitute
at least a majority of the Board, provided that any person
becoming a director subsequent to the date hereof whose election,
or nomination for election by the Company's stockholders, was
approved by a vote of at least a majority of the directors then
comprising the Incumbent Board (other than an election or
nomination of an individual whose initial assumption of office is
in connection with an actual or threatened election contest
relating to the election of the directors of the Company, as such
terms are used in Rule 14a-11 of Regulation 14A under the
Exchange Act) shall be, for purposes of this Agreement,
considered as though such person were a member of the Incumbent
Board; or
(iii) the stockholders of the Company approve a
merger or consolidation of the Company with any other
corporation, other than (A) a merger or consolidation which would
result in the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting
securities of the surviving entity) more than 75% of the combined
voting power of the voting securities of the Company or such
surviving entity outstanding immediately after such merger or
consolidation or (B) a merger or consolidation effected solely to
implement a recapitalization of the Company in which no "person"
(as hereinabove defined) increases the percentage held of the
combined voting power of the Company's then outstanding
securities (except by less than 5% of such person's holdings
preceding such recapitalization); or
(iv) the stockholders of the Company approve a
plan of complete liquidation of the Company or an agreement for
the sale, lease, exchange or disposition by the Company of all or
substantially all of the Company's assets.
(b) Disability. If, as a result of incapacity due to
physical or mental illness, you shall have been absent from the
full-time performance of your duties with the Company for six (6)
consecutive months and, within thirty (30) days after written
Notice of Termination is given to you, you shall not have
returned to the full-time performance of your duties, your
employment may be terminated for "Disability."
(c) Cause. The following shall constitute "Cause" for
termination:
(i) Deliberate dishonesty of Executive with
respect to the Company or any subsidiary or affiliate thereof; or
(ii) Conviction of Executive of a crime involving
moral turpitude; or
- 6 -<PAGE>
(iii) The material failure by Executive to perform
Executive's duties under the Employment Agreement (other than any
such failure resulting from the incapacity of Executive due to
physical or mental illness) which failure continues for thirty
(30) days after notice to Executive setting forth in reasonable
detail the manner in which Executive has not performed
Executive's duties; or
(iv) Unlawful conduct pertaining to the Company or
any of its affiliates or shareholders or involving a criminal
act; material and conscious falsification or unauthorized
disclosure of important records or reports; embezzlement or
unauthorized conversion of property; violation of conflict of
interest or vendor relations policies; or willful disclosure of
significant trade secrets or other information likely to be used
to the detriment of the Company.
(d) Good Reason. For purposes of this Agreement,
"Good Reason" shall mean, without your written consent, the
occurrence of any of the following circumstances or any of the
circumstances set forth in the definition of cause for
termination by you in Section 6(c)(i-iii) of the Employment
Agreement within the six (6) months immediately prior to your
giving the Company a Notice of Termination:
(i) any reduction in your annual base salary from
time to time;
(ii) any failure by the Company to allow your
participation in a cash bonus program in a manner substantially
consistent with past practice in light of the Company's financial
performance and attainment of your specified goals, or the
substantial reduction of your participation in any other material
compensation plan (other than any stock option or stock award
program which programs are within the full discretion of the
Compensation Committee) on a significantly less favorable basis,
both in terms of the amount of benefits provided and the level of
your participation relative to other participants; unless such
circumstances are fully corrected prior to the Date of
Termination specified in the Notice of Termination given in
respect thereof;
(iii) the failure by the Company to continue to
provide you with benefits substantially similar to those enjoyed
by you under any of the Company's life insurance, medical, health
and accident, or disability plans in which you were
participating, the taking of any action by the Company which
would directly or indirectly materially reduce any of such
benefits, or the reduction in the number of paid vacation days to
which you are entitled; unless such circumstances are fully
corrected prior to the Date of Termination specified in the
Notice of Termination given in respect thereof;
- 7 -<PAGE>
(iv) any requirement by the Company that the
location at which you perform your principal duties for the
Company be changed to a new location outside a radius of 50 miles
from your business location at the time of the Change in Control;
or
(v) the failure of the Company to obtain a
satisfactory agreement from any successor to assume and agree to
perform the Agreement, as contemplated in Section 7(a).
6. Employment Agreement.
The Employment Agreement shall be amended as follows:
(a) (i) Section 6(e) shall be amended by deleting
"ninety (90) days" and inserting in its place
"thirty (30) days;"
(ii) Section 6(f)(ii) shall be deleted in its
entirety and in its place shall be inserted
"Reserved;" and
(iii) Section 11, "Arbitration of Disputes," shall
not apply after any Change of Control, as
defined herein.
(b) Any salary continuation payments which you
actually receive under Section 6(f)(i) or (iii) of the Employment
Agreement following the termination of your employment with the
Company shall be credited against any payments which you are
entitled to receive under this Agreement.
(c) Except as expressly amended by this Agreement, the
terms of the Employment Agreement shall remain in effect.
7. Successors; Binding Agreement.
(a) The Company will require any successor (whether
direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business or assets
of the Company expressly to assume and agree to perform this
Agreement to the same extent that the Company would be required
to perform it if no such succession had taken place. Failure of
the Company to obtain an assumption of this Agreement prior to
the effectiveness of any succession shall be a breach of this
Agreement and shall entitle you to compensation from the Company
in the same amount and on the same terms as you would be entitled
hereunder if you had been terminated without Cause. As used in
this Agreement, "Company" shall mean the Company as defined above
and any successor to its business or assets as aforesaid which
assumes and agrees to perform this Agreement by operation of law,
or otherwise.
- 8 -<PAGE>
(b) This Agreement shall inure to the benefit of and
be enforceable by your personal or legal representatives,
executors, administrators, successors, heirs, distributees,
devisees and legatees. If you should die while any amount would
still be payable to you hereunder if you had continued to live,
all such amounts, unless otherwise provided herein, shall be paid
in accordance with the terms of this Agreement to your devisee,
legatee or other designee or if there is no such designee, to
your estate.
8. Notice.
For the purposes of this Agreement, notices and all
other communications provided for in this Agreement shall be in
writing and shall be duly given when delivered or when mailed by
United States registered or certified mail, return receipt
requested, postage prepaid, addressed to the Chairman of the
Compensation Committee, Aquila Biopharmaceuticals, Inc., at 365
Plantation Street, Worcester, Massachusetts 01605, and to you at
the address shown above or to such other address as either the
Company or you may have furnished to the other in writing in
accordance herewith, except that notice of change of address
shall be effective only upon receipt.
9. Miscellaneous.
(a) The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, which
shall remain in full force and effect.
(b) The validity, interpretation, construction and
performance of this Agreement shall be governed by the law of The
Commonwealth of Massachusetts.
(c) No waiver by you at any time of any breach of, or
compliance with, any provision of this Agreement to be performed
by the Company shall be deemed a waiver of that or any other
provision at any subsequent time.
(d) This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but
all of which together will constitute one and the same
instrument.
(e) Any payments provided for hereunder shall be paid
net of any applicable withholding required under federal, state
or local law.
(f) The Company shall do, make, execute and deliver
all such additional and further acts, things, assurances and
instruments as you may reasonably request in order to assure to
- 9 -<PAGE>
you your rights hereunder and to carry into effect the provisions
and intent of this Agreement. The Company shall, upon your
request, convert any options which are incentive stock options
into nonqualified options and shall amend any outstanding option
agreements in a manner consistent with this Agreement.
If this letter sets forth our agreement on the subject
matter hereof, kindly sign and return to the Company the enclosed
copy of this letter, which will then constitute our agreement on
this subject.
Sincerely,
AQUILA BIOPHARMACEUTICALS, INC.
By:__/s/ John M. Nelson________
Chairman of the Compensation
Committee
Agreed to this 10th day of September, 1997
/s/ Alison Taunton-Rigby
______________________________
(Signature)
Alison Taunton-Rigby
______________________________
(Print Name)
8 Farrar Road
Address: ______________________________
Lincoln, MA 01773
______________________________
- 10 -
Schedule to Exhibit 10.2 Employee Retention Agreements
Name Date of Execution Severance Payment
Gerald A. Beltz 10/24/97 two times sum of
annual salary plus
average annual bonus
Stephen J. DiPalma 10/27/97 sum of annual salary
plus average annual
bonus
Deborah B. Grabbe 10/24/97 sum of annual salary
plus average annual
bonus
Robert B. Kammer 10/24/97 sum of annual salary
plus average annual
bonus
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from Condensed
Balance Sheet (unaudited), Statement of Operations (unaudited) and Statement of
Cash Flows (unaudited) and is qualified in its entirety by reference to such
financial statements.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-30-1997
<PERIOD-END> SEP-30-1997
<CASH> 4,480
<SECURITIES> 12,155
<RECEIVABLES> 953
<ALLOWANCES> (126)
<INVENTORY> 578
<CURRENT-ASSETS> 18,695
<PP&E> 12,144
<DEPRECIATION> (11,661)
<TOTAL-ASSETS> 23,574
<CURRENT-LIABILITIES> 3,560
<BONDS> 3,956
0
0
<COMMON> 50
<OTHER-SE> 15,783
<TOTAL-LIABILITY-AND-EQUITY> 23,574
<SALES> 1,050
<TOTAL-REVENUES> 5,381
<CGS> 785
<TOTAL-COSTS> 785
<OTHER-EXPENSES> 7,402
<LOSS-PROVISION> 25
<INTEREST-EXPENSE> 339
<INCOME-PRETAX> (1,272)
<INCOME-TAX> 21
<INCOME-CONTINUING> (1,293)
<DISCONTINUED> 191
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (1,102)
<EPS-PRIMARY> (0.22)
<EPS-DILUTED> (0.22)
</TABLE>
