<PAGE>
FORM 10-Q
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended DECEMBER 31, 1996
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 1-9585
ABIOMED, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 04-2743260
(State of incorporation) (I.R.S. Employer No.)
33 CHERRY HILL DRIVE
DANVERS, MASSACHUSETTS 01923
(Address of principal executive offices,
including zip code)
(508) 777-5410
(Registrant's telephone number,
including area code)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) or 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 [ ]
As of December 31, 1996, there were 6,982,288 shares outstanding of the
registrant's Common Stock, $.01 par value.
<PAGE>
ABIOMED, INC. AND SUBSIDIARIES
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page No.
<S>
<C>
Part I - Financial Information:
Item 1. Financial Statements
Consolidated Balance Sheets
December 31, 1996 and March 31, 1996
3-4
Consolidated Statements of Operations
Three and Nine Months Ended December 31, 1996
and December 31, 1995
5
Consolidated Statements of Cash Flows
Nine Months Ended December 31, 1996 and
December 31, 1995
6
Notes to Consolidated Financial Statements
7-9
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of Operations
10-14
Part II - Other Information
15
Signatures
16
</TABLE>
<PAGE>
ABIOMED, INC. AND SUBSIDIARIES
PART 1. FINANCIAL INFORMATION
ITEM 1: FINANCIAL STATEMENTS
CONSOLIDATED BALANCE SHEETS
ASSETS
<TABLE>
<CAPTION>
December 31, 1996
March 31, 1996
(unaudited)
(audited)
<S>
<C>
<C>
Current Assets:
Cash and cash equivalents (Note 6)
$1,341,094
$2,938,332
Short-term marketable securities (Note 6)
8,131,987
7,709,110
Accounts receivable, net
3,213,835
2,606,289
Inventories (Note 3)
2,049,899
1,653,512
Prepaid expenses and other current assets
183,431
92,280
Total current assets
14,920,246
14,999,523
Property and equipment, at cost:
Machinery and equipment
2,834,563
2,378,851
Furniture and fixtures
205,316
156,048
Leasehold improvements
806,579
378,998
3,846,458
2,913,897
Less: Accumulated depreciation
and amortization
2,518,782
2,331,145
1,327,676
582,752
Other assets, net (Note 7)
520,538
627,154
$16,768,460
$16,209,429
</TABLE>
The accompanying notes are an integral
part of these consolidated financial
statements.
<PAGE>
ABIOMED, INC. AND SUBSIDIARIES
PART 1. FINANCIAL INFORMATION
ITEM 1: FINANCIAL STATEMENTS
(continued)
CONSOLIDATED BALANCE SHEETS
(continued)
LIABILITIES AND STOCKHOLDERS'
INVESTMENT <TABLE>
<CAPTION>
December 31, 1996
March 31, 1996
(unaudited)
(audited)
<S>
<C>
<C>
Current Liabilities:
Accounts payable
$834,230
$777,943
Accrued expenses
1,394,352
1,486,981
Total current liabilities
2,228,582
2,264,924
Stockholders' Investment (Note 4):
Class B Preferred Stock, $.01 par value-
Authorized 1,000,000 shares
Issued and outstanding-none
- -
- -
Common Stock, $.01 par value-
Authorized 25,000,000 shares at December 31,
1996
Issued and Outstanding- 6,982,288 shares at
December 31, 1996 and 5,518,054 shares at
March 31, 1996
69,823
55,180
Class A Common Stock $.01 par value
Authorized - 2,346,000 shares
Issued and Outstanding - 0 shares at December 31,
1996
and 1,428,000 shares at March 31, 1996
- -
14,280
Additional paid-in capital
36,963,696
36,625,221
Accumulated deficit
(22,493,641)
(22,750,176)
Total stockholders' investment
14,539,878
13,944,505
$16,768,460
$16,209,429
</TABLE>
The accompanying notes are an integral part
of these consolidated financial
statements.
<PAGE>
ABIOMED, INC. AND SUBSIDIARIES
PART 1. FINANCIAL INFORMATION
ITEM 1: FINANCIAL STATEMENTS
(continued)
CONSOLIDATED STATEMENTS OF OPERATIONS
(unaudited)
<TABLE>
<CAPTION>
Nine Months Ended
Three Months Ended
December 31, 1996
December 31, 1995
December 31 ,1996
December 31, 1995
<S>
<C>
<C>
<C>
<C>
Revenues:
Products
$8,095,356
$7,008,112
$2,335,801
$2,613,319
Contracts
2,739,015
2,353,272
985,166
897,976
10,834,371
9,361,384
3,320,967
3,511,295
Costs and expenses:
Cost of products
3,623,033
2,809,482
1,500,180
997,157
Research and development
2,520,216
2,491,603
739,479
972,566
Selling, general and administrative
4,841,567
4,133,992
1,612,332
1,484,048
10,984,816
9,435,077
3,851,991
3,453,771
Net income (loss) from operations
(445)
(73,693)
(531,024)
57,524
Interest and other income
406,980
395,265
150,443
131,539
Net income (loss)
$256,535
$321,572
($380,581)
$189,063
Net income (loss) per common share
(Note 5):
$0.04
$0.05
($0.05)
$0.03
Weighted average number of common
and dilutive common equivalent shares
outstanding
7,191,848
6,988,400
6,976,121
6,993,772
</TABLE>
The accompanying notes are an integral
part of these consolidated financial
statements.
<PAGE>
ABIOMED, INC. AND SUBSIDIARIES
PART 1. FINANCIAL INFORMATION
ITEM 1: FINANCIAL STATEMENTS
(continued)
CONSOLIDATED STATEMENT OF CASH FLOWS
(unaudited)
<TABLE>
<CAPTION>
Nine Months Ended
December 31, 1996
December 31. 1995
<S>
<C>
<C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income
$256,535
$321,572
Adjustments to reconcile net income to net cash
provided by (used in) operating activities-
Depreciation and amortization
294,253
248,370
Changes in assets and liabilities-
Accounts receivable
(607,546)
(601,380)
Inventories
(396,387)
(130,790)
Prepaid expenses and other current assets
(91,151)
(153,441)
Accounts payable
56,287
754,564
Accrued expenses
(92,629)
271,429
Net cash provided by ( used in ) operating
activities (580,638)
710,324
CASH FLOWS FROM INVESTING ACTIVITIES:
Maturities of investments, net
(422,877)
1,227,465
Purchases of property and equipment and improvements
(932,561)
(197,512)
Purchases of Abiomed Limited Partnership units from
limited partners (Note 7)
- -
(770,000)
Net cash provided by (used in) investing activities
(1,355,438)
259,953
CASH FLOWS FROM FINANCING ACTIVITIES:
Proceeds from exercise of stock options and stock issued
under employee stock purchase plan
338,838
134,947
Net cash provided by financing
activities 338,838
134,947
NET INCREASE (DECREASE) IN CASH AND EQUIVALENTS,
EXCLUDING INVESTMENTS
(1,597,238)
1,105,224
CASH AND CASH EQUIVALENTS, EXCLUDING INVEST-
MENTS, AT BEGINNING OF PERIOD
2,938,332
614,091
CASH AND CASH EQUIVALENTS , EXCLUDING
INVEST-
MENTS, AT END OF PERIOD
$1,341,094
$1,719,315
</TABLE>
The accompanying notes are an integral part
of these consolidated financial statements.
<PAGE>
ABIOMED, INC. AND SUBSIDIARIES
PART 1. FINANCIAL INFORMATION (continued)
ITEM 1: FINANCIAL STATEMENTS (continued)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(unaudited)
1. Basis of Preparation
The unaudited consolidated financial statements of ABIOMED, Inc.
(the Company), presented herein have been prepared in accordance with the
instructions to Form 10-Q and do not include all of the information and note
disclosures required by generally accepted accounting principles. These
statements should be read in conjunction with the consolidated financial
statements and notes thereto included in the Company's latest audited
financial statements, which are contained in the Company's Form 10-K for the
year ended March 31, 1996, which was filed with the Securities and Exchange
Commission. In the opinion of management, the accompanying consolidated
financial statements include all adjustments (consisting only of normal,
recurring adjustments) necessary to summarize fairly the Company's financial
position and results of operations. The results of operations for the nine
months ended December 31, 1996 may not be indicative of the results that may
be expected for the full fiscal year.
2. Principles of Consolidation
The consolidated financial statements include the accounts of the
Company and its wholly-owned subsidiaries, ABIOMED Cardiovascular, Inc.,
ABIOMED R&D Inc., ABIODENT, Inc., Abiomed Research and Development,
Inc., ABD Holding Company, Inc., and the accounts of its majority-
owned subsidiary Abiomed Limited Partnership (see Note 7). All
significant intercompany accounts and transactions have been
eliminated in consolidation.
3. Inventories
Inventories include raw materials, work-in-process, and finished goods
and are priced at the lower of cost (first-in, first-out) or market and
consist of the following:
<TABLE>
<CAPTION>
December 31, 1996
March 31, 1996
<S>
<C>
<C>
Raw Materials
$986,670
$799,548
Work-in-Process
460,386
428,287
Finished Goods
602,843
425,677
TOTAL
$2,049,899
$1,653,512
</TABLE>
Finished goods and work-in-process inventories consist of
direct material, labor and overhead.
<PAGE>
ABIOMED, INC. AND SUBSIDIARIES
PART 1. FINANCIAL INFORMATION (continued)
ITEM 1: FINANCIAL STATEMENTS (continued)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS(unaudited, continued)
4. Stockholders' Investment
Effective July 31, 1996, in accordance with the rights for the Class
A Common Stock, 1,428,000 shares of Class A Common Stock $0.01 par value
were converted into an equal number of shares of the Company's $0.01 par
value Common Stock.
In the three months ended December 31, 1996, options to purchase
50,000 shares of Common Stock were granted at fair market value with
exercise prices ranging from $11.00 to $13.50 per share. Options to
purchase 28,000 shares were canceled during the quarter. Options to purchase
10,150 shares were exercised in the third quarter at exercise prices ranging
from $5.75 to $13.50 per share.
5. Net Income Per Common Share
Net income (loss) per common and common equivalent share is computed
by dividing net income (loss) by the weighted average number of common and
common equivalent shares outstanding during the period using the treasury
stock method. Common equivalent shares, such as stock options, have not been
included in the per share calculation where the effect of their inclusion
would be antidilutive. No common equivalent shares are considered dilutive in
the three month period ended December 31, 1996, in which a loss is reported
because all such common equivalent shares are antidilutive.
6. Cash and Cash Equivalents
The Company classifies any marketable security with a maturity date of
90 days or less at the time of acquisition as a cash equivalent. Securities,
including marketable securities, with original maturities of greater than 90
days are classified as investments. Investments are classified as long-term
investments when their maturities exceed one year from the balance sheet date.
The Company reports investments at amortized cost plus accrued interest.
7. Other Assets
Other assets represent the Company's majority interest in the assets
of the Abiomed Limited Partnership. This amount is being amortized over five
years, its estimated useful life. Abiomed Limited Partnership (the
Partnership) was formed in March 1985 and provided initial funding for the
design and development of certain of the Company's products.
<PAGE>
ABIOMED, INC. AND SUBSIDIARIES
PART 1. FINANCIAL INFORMATION (continued)
ITEM 1: FINANCIAL STATEMENTS (continued)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS(unaudited, continued)
7. Other Assets (continued)
Through August 3, 2000, the Company owes a royalty to the
Partnership of 5.5% of certain revenues from these products. Because the
Company owns 61.7% of the Partnership, the net royalty expense to the
Company is approximately 2.1% of these product revenues. This royalty
formula is subject to certain maximum amounts and to certain additional
adjustments in the event that the Company sells the technology. The
Partnership is inactive except with respect to receiving and distributing
proceeds from these royalty rights.
<PAGE>
ABIOMED, INC. AND SUBSIDIARIES
PART 1. FINANCIAL INFORMATION (continued)
ITEM 2: MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
RESULTS OF OPERATIONS
OVERVIEW
Recall
The Company's results of operating for the quarter ended December
31, 1996 were adversely affected by the Company's voluntary recall of
certain production lots of disposable blood pumps for its BVS-5000. As a
result of the recall, the Company ended the quarter with a product backlog
of unshipped customer orders totaling approximately $662,000, compared to
virtually no product backlog as of the end of the comparable period of the
prior year. As previously announced, the Company discovered that a small
number of single-use blood pumps exhibited a defect in a molded part
purchased from a third-party vendor. To the Company's knowledge, no patient
has been affected by the defect. In addition to the direct costs of
replacing blood pumps in the affected lots, the Company's cost of goods sold
for its
quarter ended December 31, 1996 also includes expenses incurred to modify
production processes and inspection to prevent similar occurrences in the
future. The Company is working to increase its manufacturing volumes of BVS
blood pumps to meet the demands required to ship its backlog, fill new
orders and replace all of the blood pumps subject to recall. The Company
believes that it will be able to meet substantially all of these demands by
the end of the first quarter of its upcoming fiscal year.
New Product Development
While the recall discussed above significantly impacts the Company's
short-term results of operations, the Company has been proceeding with its
longer term goal of developing its permanent cardiac support products, in
particular the implantable total artificial heart ("TAH"). The Company has
begun operating from its recently expanded facilities designed for the
development and production of the TAH and begins its fourth quarter of
fiscal 1997 with a substantial manpower expansion of its TAH development
team. The Company's current staff of full-time employees has increased to
one hundred fifteen.
NET INCOME (LOSS)
Net loss and loss per share for the three months ended December 31,
1996, were approximately $381,000 and $0.05 per share, respectively. These
losses compare to net income and income per share of approximately $189,000
and $0.03 per share, respectively, in the same period of the previous year.
Net income and income per share for the nine months ended December
31, 1996, were approximately $257,000 and $0.04 per share, respectively.
These earnings compare to net income and income per share of approximately
$322,000 and $0.05 per share in the same period of the previous year.
<PAGE>
ABIOMED, INC. AND SUBSIDIARIES
PART 1. FINANCIAL INFORMATION (continued)
ITEM 2: MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS(continued)
REVENUES
In the three months ended December 31, 1996, total revenues were
approximately $3,321,000, 5% less than total revenues of approximately
$3,511,000 in the same period of the previous year.
Product revenues were approximately $2,335,000, 11% less than
product revenues of approximately $2,613,000 in the same period of the
previous year. These results were affected by the product recall, including
the backlog of $662,000, which contributed to decreased domestic unit sales
of the disposable BVS blood pump and related accessories partially offset by
increased average selling prices of these products. More than 90% of total
product revenues in the quarter were derived from domestic sources.
Revenues from Research and Development (R&D) contracts and grants
for this quarter were approximately $985,000, 10% higher than total revenues
of approximately $898,000 reported in the same quarter of the previous year.
This increase primarily reflected timing of scheduled activities under
existing contracts and grants.
In the nine months ended December 31, 1996, total revenues were
approximately $10,834,000, 16% higher than total revenues of approximately
$9,361,000 in the same period of the previous year.
Product sales for the first nine months of fiscal 1997 were
approximately $8,095,000 compared with approximately $7,008,000 for the
same period of the previous year, an increase of 16%. This growth
primarily reflected increased average selling prices of the disposable BVS
blood pump and higher unit sales of the BVS console and related
accessories to an expanded installed customer base.
Revenues from R&D contracts and grants for the nine months ended
December 31, 1996 were approximately $2,739,000, 16% higher than total
revenue of approximately $2,353,000 in the same period of the prior year. The
increase primarily reflected the timing of scheduled activities under
existing contracts and grants.
In aggregate, as of December 31, 1996, the Company's backlog of
research and development contracts and grants totaled approximately
$11,800,000 compared to a backlog of approximately $5,500,000 as of March
31, 1996. The majority of this increase was due to a four year cost-plus-fixed-
fee extension of approximately $8,500,000 to the Company's contract with the
National Heart, Lung and Blood Institute (NHLBI) to continue development of
the Company's battery-powered implantable total artificial heart (TAH).
Included in the December 31, 1996 backlog was approximately $7,800,000
from this TAH contract and approximately $3,600,000 for continued
research and development of an implantable Heart Booster. All such
contracts contain provisions making them terminable at the convenience of
the government.
<PAGE>
ABIOMED, INC. AND SUBSIDIARIES
PART 1. FINANCIAL INFORMATION (continued)
ITEM 2: MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS(continued)
REVENUES (continued)
Product revenues from the Company's dental subsidiary, ABIODENT,
Inc., represented approximately 10% of total revenues for the nine months
ended December 31, 1996. Dental product revenues, compared to the
corresponding periods of the prior fiscal year, were relatively unchanged
for the three months ended December 31, 1996 and increased approximately 27%
for the nine months ended December 31, 1996.
COSTS AND EXPENSES
Total costs and expenses for the three months ended December 31,
1996, were approximately $3,852,000, 11% higher than total costs and expenses
of approximately $3,454,000 in the same fiscal quarter of the previous year.
The majority of this increase reflected expenses incurred to support higher
revenues and recall related costs.
Cost of products sold as a percentage of product revenues increased
to approximately 64% in the three month period ended December 31, 1996 from
approximately 38% in the same quarter of the previous year. This increase in
costs as a percentage of product revenues primarily reflected increased costs
associated with the production of the disposable BVS blood pump, primarily
costs associated with the recall as discussed above.
Total research and development costs decreased during the third
fiscal quarter of fiscal 1997 to approximately $739,000, a 24% decrease from
research and development costs of approximately $973,000 incurred during the
same fiscal period of the previous year. The decrease primarily reflected the
timing of scheduled expenditures under cost-plus fixed-fee contracts and
grants. The Company anticipates that its research and development costs will
increase, particularly in connection with the continued development of the
TAH.
Selling, general and administrative expenses for the three months
ended December 31, 1996, increased to approximately $1,612,000, 9% higher than
selling, general and administrative expenses in the same fiscal quarter of the
previous year. This increase primarily reflected increased sales and marketing
expenses, particularly increased personnel.
Total costs and expenses for the nine months ended December 31, 1996
increased to $10,985,000, 16% higher than total costs and expenses of
approximately $9,435,000 for the first nine months of last year. The increase
was primarily attributable to higher revenue levels attained during the first
nine months of fiscal 1997 and to a lessor extent the recall.
Cost of products sold as a percentage of product revenues increased to
approximately 45% in the first nine months of fiscal 1997 from approximately
40% in the same nine month period of the previous fiscal year.
<PAGE>
ABIOMED, INC. AND SUBSIDIARIES
PART 1. FINANCIAL INFORMATION (continued)
ITEM 2: MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS(continued)
COSTS AND EXPENSES (continued)
This increase in cost as a percentage of revenues primarily reflected costs
related to the recall.
Total research and development costs increased to approximately
$2,520,000 for the nine months ended December 31, 1996, approximately even
with the amount reported for the same period in the previous fiscal year.
Selling, general and administrative expenses for the nine months
ended December 31, 1996 increased to approximately $4,842,000, 17% higher
than selling, general and administrative expenses in the nine month period
ended December 31, 1995. This increase primarily reflected increased sales
and marketing expenses, particularly increased personnel and sales
commissions, related to the increase in product revenues.
INTEREST AND OTHER
For the three months ended December 31, 1996, interest and other was
approximately $150,000 14% higher than interest income and other for the same
quarter of the previous fiscal year.
For the nine months ended December 31, 1996, interest and other was
approximately $407,000 and approximately even with interest and other in the
corresponding quarter of the prior year.
Income taxes incurred during these periods were not material and the
Company continues to have significant net tax operating loss carryforwards
and tax credit carryforwards.
LIQUIDITY AND CAPITAL RESOURCES
As of December 31, 1996, the Company's balance sheet included
$9,473,000 in cash and short-term investments, a decrease of approximately
$1,174,000 from March 31, 1996. This decrease primarily reflected
approximately $932,000 of cash used for equipment purchases and leasehold
improvements and approximately $581,000 used in operations, partially offset
by approximately $339,000 in proceeds from the exercise of employee stock
options. The Company also has a $3,000,000 line of credit from a bank that
expires on September 30, 1997, which was entirely available at December 31,
1996.
For the nine months ended December 31, 1996, net cash provided by
operating activities included net income of approximately $257,000,
including depreciation and amortization expenses of $294,000, and an
increase in accounts payable of approximately $56,000. These sources of cash
were
partially offset by an increase in accounts receivable of $608,000, an
increase in inventory of $396,000, primarily related to the BVS consoles, a
decrease in accrued expenses of approximately $93,000 and increase in prepaid
expenses
of $91,000.
<PAGE>
ABIOMED, INC. AND SUBSIDIARIES
PART 1. FINANCIAL INFORMATION (continued)
ITEM 2: MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS(continued)
LIQUIDITY AND CAPITAL (continued)
Net cash used in investing activities included approximately
$423,000 of net maturities of short-term investments and approximately
$932,000 of purchases and improvements of property and equipment. During the
first nine months of fiscal 1997, the Company received proceeds of
approximately $339,000 from the exercise of stock options under the 1992
Combination Stock Option Plan.
Although the Company does not currently have significant capital
commitments, the Company believes that it will continue to make significant
investments in the coming years to support the development and
commercialization of its products under development. The Company believes
that its revenues and existing resources are sufficient to meet its current
needs but that additional funding will be necessary to effectively develop
and potentially commercialize certain products under development,
particularly the TAH.
HEALTH CARE REFORM
Private and government proposals for significant health care reform
are expected to continue to affect healthcare expenditures in the United
States as well as internationally where the company sells or plans to sell its
products. The Company cannot assess at this time the potential impact that
healthcare trends may have on future results because of uncertainties
surrounding any unforseeable changes.
***
<PAGE>
ABIOMED, INC. AND SUBSIDIARIES
PART II. OTHER INFORMATION
Item 1. Legal Proceedings
No material proceedings
Item 2. Changes in Securities
None
Item 3. Defaults upon Senior Securities
None
Item 4. Submission of Matters to a Vote of Security Holders
None
Item 5. Other Information
None
Item 6. Exhibits and Reports on Form 8-K
a) Exhibits
10.02 Lease Agreement: 33 Cherry Hill Drive, Danvers,
MA 10.03 First Amendment to Lease: 33 Cherry Hill Drive
b) Reports on Form 8-K
None
<PAGE>
ABIOMED, INC. AND SUBSIDIARIES
PART II. OTHER INFORMATION
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
ABIOMED, Inc.
Date: February 6, 1997 /s/ David M. Lederman
David M. Lederman
CEO and President
Date: February 6, 1997 /s/ John F. Thero
John F. Thero
Vice President Finance and
Administration; and Treasurer
Chief Financial Officer
Principal Accounting Officer
16
THE FLATLEY COMPANY
STANDARD FORM OF INDUSTRIAL LEASE
SUBMISSION NOT AN OPTION
THE SUBMISSION OF THIS LEASE FOR EXAMINATION AND
NEGOTIATION DOES NOT CONSTITUTE AN OFFER TO LEASE, A
RESERVATION OF, OR OPTION FOR THE PREMISES AND SHALL VEST NO
RIGHT IN ANY PARTY. TENANT OR ANYONE CLAIMING UNDER OR
THROUGH TENANT SHALL HAVE THE RIGHTS TO THE PREMISES AS SET
FORTH HEREIN AND THIS LEASE BECOMES EFFECTIVE AS A LEASE ONLY
UPON EXECUTION AND ACKNOWLEDGEMENT THEREOF BY LANDLORD
AND TENANT, REGARDLESS OF ANY WRITTEN OR VERBAL
REPRESENTATION OF ANY AGENT, MANAGER OR EMPLOYEE OF
LANDLORD TO THE CONTRARY.
Revision Date: 10/85
TABLE OF CONTENTS
Section Page
1. Incorporation of Basic Data 1
2. Premises 2
3. Term 2
3A. Option to Extend 3
4. Security Deposit 3
5. Annual Rent 3
6. Additional Rent
(a) Taxes 4
(b) Tax Payments 4
(c) Common Areas 5
(d) Charges for Common Areas 5
7. Utilities 6
8. Tenant's Use of Premises and
Miscellaneous Covenants. . . 6
9. Repairs to and Maintenance of Premises by Tenant 8
10. Subletting and Assignment 9
11. Alterations 11
12. Trash Removal 11
13. Mechanic's Liens 11
14. Access to Premises 12
15. Removal of Improvements 12
16. Tenant's Insurance Obligations 12
17. Repairs by Landlord 13
18. Damage or Destruction by Eminent Domain,
Fire or Casualty 13
19. Tenant's Default
(a) Events of Default 14
(b) Landlord's Remedies 15
(i) Termination of Lease 15
(ii) Suit for Possession 15
(iii)Reletting of Premises 16
(iv) Acceleration of Payment 16
(v) Monetary Damages 16
(vi) Anticipatory Breach;
Cumulative Remedies 17
(c) Waiver 17
(d) Right of Landlord to Cure Tenant's Default 17
(e) Late Payment 18
(f) Lien on Personal Property 18
20. Liability of Landlord; Indemnification 19
21. Lease Not to be Recorded 20
22. Severability 20
23. Delays 20
24. Estoppel Certificates 21
25. Waiver of Subrogation 21
26. Waiver 21
27. Surrender and Holding Over 21
28. Lease Inures to Benefit of Successors and Assigns 22
29. Quiet Enjoyment 22
30. No Partnership 22
31. Notices 22
32. Interpretation 23
33. Paragraph Headings 23
34. Broker's Commissions 23
35. Interruption of Services 23
36. Subordination 23
37. Modification 23
38. Multiple Parties 24
39. Submission Not an Option 24
40. Financial Information 24
41. Signage 24
42. Entire Agreement 24
Exhibit "A" 27
Exhibit "B" 28
LEASE AGREEMENT
(Standard Industrial Form)
This Lease is made as of this 8th day of August, 1996, by
and between the party named as landlord in the "Basic Data" set
forth below (hereinafter "Landlord") and the party named as
tenant in the "Basic Data" set forth below (hereinafter
"Tenant"). In consideration of the mutual covenants herein set
forth, the parties agree as follows:
1. Incorporation of Basic Data. All capitalized terms in
this Lease shall have the meanings as described to them in the
Basic Data set forth below unless otherwise defined herein.
BASIC DATA
Landlord: shall mean Thomas J. Flatley d/b/a The Flatley
Company, having a principal place of business and
current mailing address at 50 Braintree Hill Office
Park, Braintree, MA 02184.
Tenant: shall mean Abiomed, Inc., having a principal
place of business and current mailing address at 33 Cherry
Hill Park, Danvers, MA 01923.
Premises: shall mean 18,203 square feet, being
the approximate size of the Premises and the basis on which
Annual Rent and Additional Rent shall be paid by Tenant to
Landlord, in the building located at Cherry Hill
Park, 33 Cherry Hill Drive, Danvers, MA 01923 (the
"Building"), which Building is located on a lot (the
"Lot"), all as such Premises, Building and Lot are
described and/or outlined in Exhibit A.
Term: shall mean the period of five (5) years commencing
upon the Commencement Date.
Adjustment of Term: If the Commencement Date is other
than the first day of a calendar month, this Lease shall
continue in full force and effect for a period of five (5) years
from the first day of the calendar month next
succeeding the Commencement Date.
Security
Deposit: INTENTIONALLY OMITTED.
Annual
Rent: shall mean the annual sum of ONE HUNDRED THOUSAND
ONE HUNDRED SIXTEEN AND 50/100 Dollars
($100,116.50), payable in equal monthly installments
of EIGHT THOUSAND THREE HUNDRED FORTY-THREE AND
04/100 Dollars ($8,343.04), for the first (1st)
through and including the fifth (5th) full year of
the Lease Term, all payable in accordance with
Paragraph 5 of this Lease plus all other charges,
amounts, reimbursements or other sums (collectively
"Additional Rent") to be paid by Tenant to Landlord
in accordance with Paragraph 6 and any other terms
of this Lease calling for the payment of money by
Tenant to Landlord.
Use: shall mean manufacturing, research and development,
sales and/or office use and animal research and
medical use, not involving the emission of
objectionable odors, fumes, noise or vibration that
do not meet OSHA guidelines and for no other use,
and from time to time to procure all licenses and
permits necessary therefor.
Commence-
ment Date: shall mean July 1, 1996.
Landlord and Tenant agree to execute a Supplemental
Agreement setting forth the actual Occupancy and
Term Dates, once the same have been established.
Tenant's
Pro Rata
Share: shall be based on the fraction:
Square Footage of TENANT's Premises = 18,203
Aggregate of All the Rentable Square Footage 60,600
(whether or not rented or improved within the entire Building)
Tenant's
Insurance
Require-
ments: Public Liability: ONE MILLION AND 00/100
($1,000,000.00) Dollars for injury to one person,
ONE MILLION AND 00/100 ($1,000,000.00) Dollars for
injury to more than one person, per incident.
Property Damage: ONE MILLION AND 00/100
($1,000,000.00) Dollars per incident.
2. Premises. Landlord hereby leases to Tenant, and Tenant
hereby leases from Landlord, subject to and with the benefit of
the terms, covenants, conditions and provisions of this Lease,
the Premises, but reserving and excepting to Landlord the use of
the exterior walls, the roof and the right to install, maintain,
use, repair and replace pipes, ducts, conduits, wires and
appurtenant fixtures leading through the Premises and serving
other parts of the Building or Lot in locations which will not
materially interfere with Tenant's use thereof. Exhibit A is
intended only to show the location of the Premises in relation to
the Building and/or Lot and the initial size of such Building and
Lot, and other data thereon is to be disregarded and in no event
deemed or construed to be a representation that the Building or
buildings, parking areas or other improvements shown thereon will
be constructed and/or maintained as indicated thereon, or that
additions to, or reductions from, the Building or Lot may not be
made by the Landlord during the Term of this Lease, but rather
the Landlord shall have the right to do so and any such addition
or reduction shall take effect upon Landlord's giving notice to
Tenant to that effect. Landlord reserves the right to construct
or sell any free-standing buildings on any portion of the Lot.
3. Term. The Term of this Lease shall commence upon the
Commencement Date, which shall be the date set forth in
the Basic Data, subject to Paragraph 23 concerning
unavoidable delays. The Premises shall be deemed ready for
occupancy under the terms of this Lease and Landlord's
obligation to deliver the Premises to Tenant as of the
Commencement Date shall be deemed fulfilled if Landlord's
construction within the Premises as required herein is
substantially completed with the exception of minor items
which can be fully completed within thirty (30) days without
material interference with Tenant's occupancy of the
Premises. The use by Tenant of the Premises for business
shall be deemed conclusive that the Premises were
substantially completed and that Tenant accepted delivery of
the Premises as substantially completed. Landlord's
construction and other work shall be as set forth in Exhibit
B hereto.
3A. In the event Tenant has not been in default of any of the
terms, conditions and covenants of this Lease Agreement and
any Amendments made hereto during the Term hereof, Landlord
shall grant to Tenant an option to extend the Term of this
Lease for an additional period of Five (5) years, subject to
the following terms and conditions:
1. The Premises shall be offered to Tenant at the then
current market rent rate and terms.
2. Tenant must exercise this option no earlier than nine
(9) calendar months but no later than six (6) calendar
months prior to the termination date of this Lease by
sending written notice to Landlord by registered or
certified mail.
Thereupon, this Lease shall be deemed extended for an
additional period of Five (5) years, upon all of the same
terms and conditions of this Lease and any Amendments made
hereto with the exception of the annual rent stipulated
hereinabove.
Tenant's exercise of this renewal option shall be null and
void unless Landlord receives (i) simultaneously with the
notice of exercise and (ii) thirty (30) days before the
commencement of the Renewal Term, Tenant's certified
financial statements for the immediately preceding three (3)
year period. In the event the credit worthiness of Tenant
is not sufficient in Landlord's sole discretion to assure
the future performance of Tenant's obligations under the
Lease during the Renewal Term, Landlord may nullify Tenant's
exercise of this renewal option.
4. Security Deposit. INTENTIONALLY OMITTED.
5. Annual Rent. Tenant hereby covenants and agrees to pay to
Landlord, at the place to which notices to Landlord are required
to be sent or such other person or place as Landlord may from
time to time designate, as Annual Rent for the Premises in lawful
money of the United States, without demand, setoff or deduction,
during the Term of this Lease, the sum set forth in Basic Data,
payable in equal monthly installments as set forth there, in
advance on the first day of each and every calendar month during
said Term. Annual Rent for any fraction of a month at the
commencement or expiration of said Term shall be prorated on a
per diem basis.
6. Additional Rent.
(a) Taxes. Tenant covenants and agrees to pay, as
Additional Rent, with respect to each calendar or other
tax year beginning or ending during the Term hereof, an
amount equal to Tenant's Pro Rata Share, as set forth in the
Basic Data, of the real estate taxes (including betterments
and other special assessments) allocated to the Building and
Lot for such tax year. If there shall be more than one
taxing authority, the real estate taxes for any period shall
be the sum of the real estate taxes for said period
attributable to each taxing authority. Tenant's Pro Rata
Share of the real estate taxes shall be adjusted for and
with respect to any partial tax years on a per diem basis.
The expression "real estate taxes" shall include all general
and special assessments, so-called, rent taxes and other
governmental charges which may be charged, assessed or
imposed upon the Building and Lot or Landlord. If at any
time during the term hereof the present system of ad valorem
taxation of real property shall be changed so that in lieu
of the ad valorem tax on real property in whole or in part,
or in addition thereto, there shall be assessed on Landlord
a capital levy or other tax on, but not limited to, the
Annual Rent and/or any Additional Rent ("Gross Rents")
received with respect to the Building and Lot, or a federal,
state, county, municipal or other local income, franchise,
excise or similar tax, assessment, levy or charge (distinct
from any method of taxation prevailing at the commencement
of the Term hereof) measured by or based, in whole or in
part, upon any such Gross Rents, then any and all of such
taxes, assessments, levies or charges, to the extent that
the same would be payable if the Building and Lot were the
only property of Landlord subject to them, and if the income
from the Building and Lot were the only taxable income of
Landlord during the year in question, shall be deemed to be
included within the term "real estate taxes".
Notwithstanding anything to the contrary contained herein,
"real estate taxes" shall not include Landlord's Federal or
State income taxes as presently imposed.
(b) Tax Payments. Payment of Tenant's Pro Rata Share of
the real estate taxes allocated to the Building and Lot shall be
paid, as Additional Rent, monthly, and at the times and in the
fashion herein provided for the payment of Annual Rent. For an
initial period from the Commencement Date until the end of the
first full tax year in which the Building and/or Lot containing
the Premises shall be assessed as a completed improvement, as
distinguished from inprocess construction ("the full assessment
year"), the amount so to be paid shall be the initial monthly
payment reasonably fixed by Landlord on or about the Commencement
Date. Promptly after the determination by any taxing authority
of real estate taxes upon the Building and Lot for each tax year,
Landlord shall make a determination of the Tenant's Pro Rata
Share of the real estate taxes and if the aforesaid payments
theretofore made for such tax year by Tenant exceed Tenant's Pro
Rata Share of the real estate taxes such overpayment shall be
credited against the payments thereafter to be made by Tenant
pursuant to this paragraph; and if the real estate taxes for such
tax year are greater than such payments theretofore made on
account for such tax year, Tenant shall pay such deficiency to
Landlord within ten (10) days of demand therefor. Copies of tax
bills submitted by Landlord with any such statement shall be
conclusive evidence of the amount of real estate taxes charged,
assessed or imposed. After the full assessment year, the initial
monthly payment on account of the Tenant's Pro Rata Share of the
real estate taxes shall be replaced each year by a payment which
is one-twelfth (1-12th) of the Tenant's Pro Rata Share of the
real estate taxes for the immediately preceding tax year. An
equitable adjustment shall be made in the event of any change in
the method or system of taxation from that which is now
applicable, including without limitation any change in the dates
and periods for which such taxes were levied. Tenant shall pay
all taxes upon its signs and other property in or upon the
Premises and Tenant covenants and agrees to pay promptly when due
all municipal, county, state and federal taxes assessed against
Tenant's leasehold interest and Tenant's fixtures, furnishing,
equipment, stock-in-trade, and other personal property of any
kind owned, installed or existing in the Premises. For the
purpose of this paragraph such taxes shall not be included within
real estate taxes upon the Building and Lot.
(c) Common Areas. Tenant and its officers, employees,
agents, customers and invitees shall have the right, in common
with Landlord and all others to whom Landlord may from time to
time grant rights, to use the common areas of the Building and
Lot for their intended purposes subject to such reasonable rules
and regulations as Landlord may from time to time impose,
including the designation of specific areas in which cars owned
or operated by Tenant, its officers, employees and agents must be
parked. Tenant agrees after notice thereof to abide by such
rules and regulations and to cause its officers, employees,
agents, customers and invitees to conform thereto. Landlord
shall at all times have full control, management and direction of
the common areas and the right to put the common areas to such
use as the Landlord may determine in its sole discretion.
Landlord shall have the right at any time and from time to time
to change the layout of the common areas including, but without
limitation, the right to add to or subtract from their shape and
size and to alter their location; provided, however, Landlord
shall always maintain such amount of parking in the common areas
as may be required by local zoning law or ordinance at the time
of such parking area's original construction.
(d) Charges for Common Areas. Tenant shall pay its Pro
Rata Share of the Common Areas Maintenance Costs during the Term
of this Lease as Additional Rent and in the manner hereafter
provided. "Common Areas Maintenance Costs" as used herein shall
mean the total cost and expenses incurred by Landlord, its
agents, contractors and/or designees for operating, maintaining,
insuring (or, if Landlord elects to self insure, an amount equal
to the cost of insurance if it were to be provided by a third
party of Landlord's choosing), managing, repairing and/or
replacing all or any part of the common areas and any
installations therein, thereon, thereunder or thereover. Payment
on account of Tenant's Pro Rata Share of the Common Areas
Maintenance Costs shall be paid as Additional Rent, monthly, and
at the times and in the fashion herein provided for the payment
of Annual Rent based initially on Landlord's reasonable estimate.
Promptly after the end of the partial calendar year during which
the Term begins and promptly after the end of each year
thereafter, Landlord shall make a determination of Tenant's Pro
Rata Share of the Common Areas Maintenance Costs. If the
aforesaid payments theretofore made for such period by Tenant
exceed Tenant's Pro Rata Share, such overpayment shall be
credited against the payments thereafter to be made by Tenant
pursuant to this paragraph; and if Tenant's Pro Rata Share is
greater than such payments theretofore made on account for such
period, Tenant shall pay such deficiency to Landlord within ten
(10) days of demand therefore. The initial monthly payment on
account of the Common Areas Maintenance Costs shall be replaced
after Landlord's determination of Tenant's Pro Rata Share thereof
for the preceding accounting period by a payment which is
one-twelfth (1/12th) of Tenant's actual Pro Rata Share thereof
for the immediately preceding accounting period, with adjustments
as appropriate where such preceding period is less than a full
twelve-month period. Appropriate adjustments shall be made for
any partial month at the commencement of the Term and for any
partial month or year at the end of the Term.
7. Utilities. Tenant agrees to pay or cause to be paid, as
Additional Rent, directly to the authority or party charged with
the collection thereof, all charges for gas, electricity, light,
heat, power, water, sewerage, telephone or other service used,
rendered or supplied to or for the Tenant upon or in connection
with the Premises throughout the Term of this Lease, and to
indemnify Landlord and save it harmless against any liability or
damages on such account. Tenant shall also at its sole cost and
expense procure any and all necessary permits, licenses or other
authorizations required for the lawful and proper maintenance and
use upon the Premises of wires, pipes, conduits, tubes and other
equipment and appliances for use in supplying any such services
to and upon the Premises except such permits, licenses and
authorizations which shall be required in connection with
original construction of the Premises, which shall be obtained by
Landlord. It is understood and agreed that Landlord shall be
under no obligation to furnish any utilities to the Premises and
shall not be liable for any interruption or failure in the supply
of any such utilities to the Premises. If a charge shall be made
from time to time by the public authority having jurisdiction of
the Premises for the use of the sanitary sewer system, Tenant
shall pay the share thereof equitably apportionable to the
Premises. Tenant shall also pay for any sprinkler standby
service charge equitably apportionable to the Premises. If the
Premises are not separately metered, Tenant shall pay to
Landlord, as billed and as additional Rent, its share of water
and/or sewer bills. In case any such water and sewer charges are
not paid by Tenant at the time when the same are payable, if to
municipal officials, Landlord may nevertheless pay the same to
such officials and charge Tenant the cost thereof, which charge
shall become payable on the first day of the following month as
Additional Rent.
8. Tenant's Use of Premises and Miscellaneous Covenants.
During the Term of this Lease Tenant shall use the Premises
solely for the purposes listed in the Basic Data. Tenant agrees
that it will not use, or permit or suffer the use of, the
Premises or any part thereof for any other business or purpose.
Tenant shall use and occupy the Premises in a careful, safe and
proper manner and shall keep the Premises in a clean and safe
condition in accordance with all applicable laws, ordinances and
government regulations. Tenant agrees that it will not do or
suffer to be done, or keep or suffer to be kept, anything in,
upon or about the Premises which will contravene Landlord's
policies insuring against loss or damage by fire or other
hazards, or which will prevent Landlord from procuring such
policies from companies acceptable to Landlord.
During the Term of this Lease, Tenant further covenants and
agrees as follows:
(a) Not to use the Premises for any use involving the
emission of objectionable odors, fumes, noise or vibration.
Tenant covenants and agrees that it shall advise Landlord in
writing of any materials or substances it deals with in any way
on the Premises that may be deemed to be hazardous or toxic prior
to such substances or materials being brought upon the Premises
or Lot. In any event, Tenant shall strictly comply with all
state, federal and municipal laws, regulations, guidelines and
ordinances concerning the use, storage, handling and disposition
of any substance or material that is or may be deemed to be toxic
or hazardous and Tenant agrees to indemnify Landlord against any
liability, including attorneys fees and costs, in connection
therewith. At Landlord's request, Tenant shall provide Landlord
with reasonable assurances that Tenant can and will comply with
the foregoing and, if Landlord so requests, Tenant shall obtain
insurance of such type and in such amount as Landlord may
reasonably specify, such policy to name Landlord as an insured
party and be obtained at Tenant's sole cost prior to such
substances or materials being brought upon the Premises or Lot.
Any such policy shall provide that it may not be cancelled or
amended without thirty (30) days prior notice to Landlord, and
shall be issued by a company or companies reasonably satisfactory
to Landlord. Failure of Tenant to provide Landlord with such
reasonable assurances or evidence of any reasonably requested
insurance in connection with the bringing of such materials or
substances upon the Premises or Lot shall be reasonable cause for
Landlord to prohibit such substances or materials from being
brought upon the Premises or Lot or, at Landlord's election, a
default under this Lease.
Notwithstanding anything contained herein to the contrary,
LESSEE shall strictly comply with all state, federal and
municipal laws, regulations, guidelines and ordinances
concerning the use, storage, handling and disposition of any
substance or material that is or may be deemed to be toxic
or hazardous and Tenant agrees to indemnify and hold
Landlord harmless against any liability, including attorneys
fees and costs, in connection therewith.
(b) Not to permit the use of the Premises for trucking of a
character or volume greater than that customarily employed
by other occupants of the Building or Lot or any use
permitted under this Lease for which trucking of such
character and volume is customary.
(c) Not to place on the Premises or Building any placard or
sign of advertising that the Premises or any part thereof
may be sublet, nor to place any other sign or placard on the
Premises or Building which is visible from the exterior of
the Premises or Building without the written consent of
Landlord, except as delineated in Section 41 of this Lease,
namely signage.
(d) Not to injure, overload, deface or permit to be
injured, overloaded, or defaced, the Premises or
Building, and not to permit any holes to be made in the
exterior of the building; and not to make, allow or suffer
any waste or any unlawful, improper or offensive use of the
Premises that shall be injurious to any person or property
or invalidate any insurance on the Premises, Building or Lot
or increase the premium thereof.
Notwithstanding anything contained herein to the contrary,
it is hereby understood and agreed that any/all roof
penetration to the Premises and/or Building shall be
performed only by an authorized Carlisle contractor approved
by Landlord.
(e) To conform to and comply with all state and municipal
laws and with all requirements of any public body or officers
having jurisdiction of the Premises and with the requirements or
regulations of any Board of Fire Underwriters or insurance
company insuring the Premises at the time with respect to the
care, maintenance, use and nonstructural alteration of the
Premises, all at Tenant's sole expense.
9. Repairs to and Maintenance of Premises by Tenant. Tenant
shall keep the Premises, including without limitation, both the
inside and outside of all doors and windows therein, in the same
order and repair as they are in on the Commencement Date,
reasonable wear and tear and damage by fire or other casualty
normally insured under a so-called "extended coverage
endorsement" only excepted; and to keep all fixtures and
equipment on the Premises including, without limitation, all
heating, plumbing, electrical, air-conditioning, ventilation and
mechanical fixtures and equipment serving only the Premises in
the same order and repair as they are in on the Commencement
Date, damage by fire or other casualty normally insured under an
"extended coverage endorsement" only excepted. Tenant shall, at
it sole cost and expense, during the entire Term of this Lease,
maintain in force a service contract providing for the repair and
annual service and maintenance of all heating, ventilating and
air conditioning equipment serving the Premises, such contract to
be with a party reasonably acceptable to Landlord or, if Landlord
should so elect, with a party designated by Landlord. Tenant
shall make all repairs and replacements and do all other work
necessary for the foregoing purposes. Landlord represents that
as of the Commencement Date of this Lease, the heating, plumbing,
electrical, air-conditioning, ventilation and mechanical fixtures
and equipment serving the Premises shall be in good working order
and of sufficient capacity for Tenant's Use as set forth herein.
In addition, if any repairs or maintenance are required to the
machinery and components of the HVAC system located in the
Premises during the twelve month period commencing with the
Commencement Date of this Lease, and Tenant so notifies Landlord
in writing thereof within said twelve month period, then,
notwithstanding anything contained herein to the contrary,
Landlord shall, at its sole cost and expense, make such repairs
and maintenance. Following the aforementioned twelve month
period, Landlord shall have no liability or responsibility with
respect to the repair, maintenance or operation of the HVAC
system within the Premises. It is further agreed that the
exception of reasonable wear and tear shall not apply so as to
permit Tenant to keep the Premises in anything less than
suitable, tenantlike, efficient and usable condition considering
the nature of the Premises and the use reasonably made thereof,
or in less than good and tenantlike repair, and that except in
case of fire or other casualty normally insured under an
"extended coverage endorsement" there is no exception to the rule
that all glass must be kept good and whole by Tenant. Tenant
shall also be responsible for the cost of all repairs to the
Building (including, without limitation, the structure and roof
thereon and common areas therein) and the Lot if the same are
occasioned by Tenant's or its employees', agents' or invitees'
improper or negligent use thereof.
Notwithstanding the foregoing, in the event a major repair
(for the purpose of this paragraph, "major repair" shall
mean a repair which costs in excess of $10,000.00 Dollars)
occurs during the last year of the term hereof and provided
the same is not caused by the Tenant's negligence, Landlord
shall perform the work and bill Tenant its pro rata based on
the remaining balance of the Lease.
10. Subletting and Assignment.
(a) Tenant covenants and agrees not to assign, sell,
mortgage, pledge or in any manner transfer this Lease
or any interest therein or sublet the Premises or any part
thereof, or grant any concession or license or otherwise
permit occupancy of all or any part thereof by another
person or entity without the prior written consent of
Landlord, which consent shall not be unreasonably withheld
provided all the provisions of this Paragraph 10 are
complied with and subject to Landlord's right to terminate
this Lease as set forth in this Paragraph 10. Any such
consent by Landlord shall be held to apply only to the
specific transaction thereby authorized. Such consent shall
not be construed as a waiver of the obligation of Tenant to
obtain from Landlord consent to any other or subsequent
assignment or subletting period. The collection of rent by
Landlord from any assignee, subtenant or other occupant
shall not be deemed an acceptance of the assignee, subtenant
or occupant as tenant or release of Tenant from its
obligation under this Lease.
(b) Notwithstanding the provisions of Paragraph 10(a),
above, any proposed assignee or sublessee submitted to the
Landlord for approval must have the same or greater financial
strength as Tenant and if such is not the case, Landlord's
withholding of consent shall be reasonable. If Tenant shall
request permission to assign this Lease or sublet the Premises or
any part thereof Tenant shall, together with such request for
consent thereto, inform Landlord of the rental and any other
amounts to be paid by such assignee or subtenant in connection
with such subletting or assignment regardless of the nomenclature
such payment may take, the term of any subletting, and any
financial information required or requested by Landlord to make
the determination required by the first sentence of this
Paragraph 10(b). Landlord shall have the right to terminate this
Lease in lieu of consenting or reasonably withholding its consent
to the proposed subletting or assignment, provided that Landlord
shall exercise such right within forty-five (45) days of its
receipt of Tenant's request for such consent and provided,
further, that Tenant shall have the right to withdraw its request
for such consent within fifteen (15) days after its receipt of
such notice from Landlord, in which event such notice of
termination shall become null and void. If this Lease shall be
terminated pursuant to the provisions of the immediately
preceding sentence, such termination shall become effective upon
the last day of the calendar month next following Landlord's
giving said notice of termination.
(c) If Landlord consents in writing to an assignment or
subletting, such consent shall be deemed conditioned upon
Tenant's compliance with the following provisions and the failure
to so comply shall be deemed to give Landlord reasonable cause
for withholding or withdrawing its consent:
(1) The assignment or subletting must be,
respectively, of all Tenant's leasehold interest
or of the entire Premises and, in the case of an
assignment, shall also transfer to the assignee all of
Tenant's rights in and interests under this Lease,
including but without limitation, the Security Deposit
hereunder.
(2) At the time of such assignment or subletting, this
Lease must be in full force and effect without any
breach or default hereunder on the part of Tenant.
(3) The assignee or sublessee shall assume, by written
recordable instrument, in form and content satisfactory
to Landlord, the due performance of all Tenant's
obligations under this Lease, including any accrued
obligations at the time of the assignment or
subletting.
(4) A copy of the assignment or sublease and the
original assumption agreement (both in form and content
satisfactory to Landlord) fully executed and acknowledged by the
assignee or sublessee, together with a certified copy of a
properly executed corporate resolution authorizing such
assumption agreement, shall be received by Landlord within ten
(10) days from the effective date of such assignment or
subletting.
(5) Such assignment or subletting shall be upon and
subject to all the provisions, terms, covenants and conditions of
this Lease including but without limitation the use permitted
hereby and Tenant (and any assignee(s), subtenant(s) and
guarantor(s) of this Lease) shall continue to be and remain
primarily and unconditionally liable hereunder.
(6) Tenant shall reimburse Landlord for Landlord's
attorneys' fees for examination of and/or preparation of any
documents in connection with such assignment or subletting.
(7) Any rent, sum or other consideration to be paid or
given in connection with such sublease or assignment,
either initially or over time, in excess of the Annual
Rent and/or Additional Rent and/or other charges to be
paid under this Lease shall be paid directly to
Landlord as if such amount were originally called for
by the terms of this Lease as Additional Rent and
Tenant shall be liable to Landlord for all such
amounts.
(d) Subject to the enumerated conditions of the preceding
Paragraph 10(c), Landlord hereby consents to the assignment or
subletting of the entire Premises to a corporation which is a
wholly owned subsidiary of Tenant, to its parent, affiliate, or
controlling corporation or corporations, or to any successor by
consolidation, merger or sale of all or substantially all of its
assets. For the purposes hereof, an "affiliate" shall be an
entity (i) at least fifty percent (50%) of which is owned
directly by Tenant or the entity owning or controlling Tenant or
(ii) Tenant or such other entity owning or controlling Tenant
having sufficient direct voting ownership to effectively control
the management thereof. Notwithstanding any such assignment or
subletting as provided in this Paragraph 10(d), such assignment
or subletting shall be upon and subject to all the provisions,
terms, covenants and conditions of this Lease and Tenant (and any
assignee(s), subtenant(s) and guarantor(s) of this Lease) shall
continue to be and remain liable hereunder.
(e) In the event that Tenant hereunder is a corporation
(other than one whose shares are regularly and publicly traded on
a recognized stock exchange in the United States), Tenant
represents that the ownership and power to vote its entire
outstanding capital stock belongs to and is vested in the officer
or officers executing this Lease or members of his or their
immediate family. If there shall occur any change in the
ownership of and/or power to vote the majority of the outstanding
capital stock of Tenant, whether such change of ownership is by
sale, assignment, bequest, inheritance, operation of law or
otherwise, without the prior written consent of Landlord, which
consent shall not be unreasonably withheld, then Landlord shall
have the option to terminate this lease upon thirty (30) days
notice to Tenant.
11. Alterations. Tenant shall not modify the leasehold
improvements or make any alterations to the Premises
without first obtaining Landlord's prior written approval of
such modifications and alterations; provided, however,
Landlord shall not unreasonably withhold its consent to
nonstructural alterations of the Premises; provided further
that Landlord's consent shall not be required for non-
structural alterations costing less than FIVE THOUSAND AND
00/100 ($5,000.00) Dollars each.
12. Trash Removal. Tenant shall be responsible for the removal
of its own trash, rubbish, garbage and refuse removal, at
its sole cost and expense. Tenant shall not permit the
accumulation of rubbish, trash, garbage and other refuse in
and around the Premises. No rubbish, trash, garbage or
other refuse shall be burned by Tenant in the Premises or
elsewhere in the Building or Lot and all of the same shall
be kept in suitable containers in the interior of the
Premises (or in locations outside the Premises as Landlord
may permit by notice in writing) until the same is picked up
from the Premises and the Building and/or Lot. The removal
agency selected by Tenant shall be subject to Landlord's
reasonable approval. In the event Tenant fails to remove
any accumulation of rubbish within twenty-four (24) hours
after notice from Landlord to remove the same, Landlord
shall have the right (but not the obligation) to remove the
same, in which event the cost thereof shall be paid by
Tenant as Additional Rent immediately upon demand.
13. Mechanic's Liens. Tenant will not permit to be created or
to remain undischarged any lien, encumbrance or charge arising
out of any work of any contractor, mechanic, laborer or
materialman or any mortgage, conditional sale, security agreement
or chattel mortgage, or otherwise which might be or become a lien
or encumbrance or charge upon the Premises or any part thereof or
the income therefrom, and Tenant will not suffer any other matter
or thing whereby the estate, rights and interest of Landlord in
the Premises or any part thereof might be impaired. If any lien
on account of an alleged debt of Tenant or any notice of contract
by a party engaged by Tenant or Tenant's contractor to work on
the Premises shall be filed against the Premises, Building or
Lot, or any part thereof, within ten (10) days after notice of
the filing thereof Tenant shall cause the same to be discharged
of record by payment or bond. If Tenant shall fail to cause such
lien to be discharged within the period aforesaid then, in
addition to any other right or remedy, Landlord may, but shall
not be obligated to, discharge the same either by paying the
amounts claimed to be due or by procuring the discharge of such
lien by deposit or by bonding proceedings, and in any such event
Landlord shall be entitled to compel the prosecution of an action
for the foreclosure of such lien by the lienor or to pay the
amount of the judgment in favor of the lienor with interest,
costs and allowances. Any amount so paid by Landlord and all
costs and expenses, including without limitation reasonable
attorneys fees, incurred by Landlord in connection therewith,
together with interest thereon at the rate specified in Paragraph
19(d) from the respective dates of Landlord's making of the
payment or incurring of the cost and expense, shall constitute
Additional Rent payable by Tenant under this Lease and shall be
paid by Tenant to Landlord immediately upon demand.
14. Access to Premises. Landlord shall have access to the
Premises at all reasonable time, with reasonable notice to allow
for an escort by Abiomed personel and minimal business
distruption, except in cases of emergency at any time, for the
purpose of examining the same or making such repairs,
alterations, additions or improvements to the Premises, or the
Building of which the Premises are a part, that Landlord may deem
necessary or which Tenant has failed to do (but nothing in this
Paragraph shall obligate Landlord to make any such repairs,
alterations, additions or improvements) and also for the purpose
of exhibiting the Premises and putting up notices "To Rent," or
"For Sale", provided Tenant does not exercise its option to renew
as defined in Paragraph 3A herein, which notices shall not be
removed, obliterated or hidden by Tenant. No forcible entry
shall be made by Landlord unless such entry shall be reasonably
necessary to prevent injury, loss or damage to persons or
property, and Landlord shall repair any damage to property
occasioned thereby. Landlord shall repair any damage to property
of Tenant or anyone claiming under Tenant caused by or resulting
from Landlord's making any such repairs, alterations, additions
or improvements except only such damage as shall result from the
entry to the Premises and/or the making of such repairs,
alterations, additions or improvements which Landlord shall make
as a result of an emergency or the default, negligence, fault or
willful misconduct of Tenant or anyone claiming under or through
Tenant. No action of Landlord pursuant to this Paragraph shall
be deemed an eviction or disturbance of Tenant nor shall Tenant
be allowed any abatement of rent or damages for any injury or
inconvenience occasioned thereby.
15. Removal of Improvements. Except as otherwise hereinafter
provided, all trade fixtures, furniture, furnishings and signs
installed in the Premises by Tenant and paid for by it shall
remain the property of Tenant and shall be removed by Tenant upon
the expiration of the Term of this Lease or its earlier
termination, provided (a) that any of such items as are affixed
to the Premises and require severance may be removed only if
Tenant shall repair any damage caused by such removal, (b) that
Tenant shall have fully performed all of the covenants and
agreements to be performed by it under the provisions of this
Lease, and (c) that Tenant shall comply with the last sentence of
this Paragraph. If the Tenant fails to remove such items from
the Premises prior to the expiration of this Lease or earlier
termination hereof, all such trade fixtures, furniture,
furnishings and signs shall become the property of the Landlord.
All lighting fixtures, heating and cooling equipment and all
other installations, alterations, additions and improvements to
the Premises other than specialty HVAC lighting and other
fixtures comprising the clean rooms, shall be and remain the
property of Landlord on the ending of the Term hereof or any
earlier termination of this Lease and shall not be removed from
the Premises.
16. Tenant's Insurance Obligation. Tenant shall carry public
liability insurance in a company or companies licensed to do
business in the state in which the Premises are located and
reasonably approved by Landlord. Said insurance shall be in
minimum amounts reasonably required by Landlord from time to time
by notice to Tenant and shall name Landlord as an additional
insured, as its interests may appear, and Tenant shall provide
Landlord with evidence, when requested, that such insurance is in
full force and effect. Tenant shall carry property damage
insurance for all of its equipment and for all leasehold
improvements above the building standard which are made by
Landlord or Tenant in and to the Premises, which policies shall
name Landlord as an additional insured. If required by Landlord,
receipts evidencing payment for said insurance shall be delivered
to Landlord at least annually by Tenant and each policy shall
contain an endorsement that will prohibit its cancellation or
amendment prior to the expiration of thirty (30) days after
notice of such proposed cancellation or amendment to Landlord.
Tenant shall carry insurance in the initial amounts listed in the
Basic Data and shall provide Landlord with certificates of such
Tenant Insurance Requirements on or prior to the Commencement
Date.
17. Repairs by Landlord. Landlord agrees to make all necessary
repairs or alterations to the foundation, roof and
structural parts of the exterior walls of the Premises.
Notwithstanding the foregoing, if any of said repairs or
alterations shall be made necessary by reason of repairs,
installations, alterations, additions or improvements made
by Tenant or anyone claiming under or through Tenant, by
reason of the default, negligence, fault, or willful
misconduct of such party, or by reason of a default in the
performance or observance of any agreements, conditions or
other provisions on the part of Tenant to be performed or
observed, or by reason of any special use to which the
Premises may be put, Tenant shall be liable for the cost of
all such repairs or alterations as may be necessary.
Landlord shall not be deemed to have committed a breach of
any obligation to make repairs or alterations or perform any
other act unless (a) it shall have made such repairs or
alterations or performed such other act negligently, or (b)
it shall have received notice from Tenant designating the
particular repairs or alterations needed or the other act of
which there has been failure of performance and Landlord
shall have failed to make such repairs or alterations or
performed such other act within a reasonable time after the
receipt of such notice; and in the latter event Landlord's
liability shall be limited to the cost of making such
repairs or alterations or performing such other act. As
used in this Lease, the expression "exterior walls of the
Premises" does not include glass, windows, doors or door
frames, or window sashes or frames. Landlord shall make all
necessary repairs to the common areas and shall maintain
such common areas (except sidewalks abutting the Premises)
reasonably clear of litter and shall perform snow handling
to the extent required for business operations of the
Building. The provisions of this Paragraph shall not apply
in the case of damage or destruction by fire or other
casualty or by eminent domain, in which events the
obligations of Landlord shall be controlled by Paragraph 18
hereof.
In the event the foregoing repairs or alterations cannot
reasonably be completed within a thirty (30) day period,
then Landlord shall have such additional time as is
reasonably necessary to complete the same, provided Landlord
has commenced the making of such repairs or alterations
within said thirty (30) days and thereafter pursued the
completion thereof with due diligence. In the event
Landlord fails or neglects to make the repairs to the
Premises which Landlord is required to make in accordance
with the terms of this Lease within thirty (30) days after
receipt of written notice from Tenant of the necessity
thereof, or within twenty-four (24) hours in the event of an
emergency, then Tenant may, but shall not be obligated to,
make such repairs and Landlord shall reimburse Tenant for
the actual cost thereof within thirty (30) days after
receipt of a bill thereof and copies of applicable invoices.
In the event Landlord fails to reimburse Tenant as
aforesaid, Tenant may, at Tenant's option, deduct said cost
from the rent payments next due to Landlord. In the event
such repairs cannot reasonably be completed within thirty
(30) days after receipt of written notice from Tenant of the
necessity therefor, and Landlord commences the making of
such repairs within said thirty (30) day period and
thereafter pursues the completion thereof with reasonable
diligence, Landlord shall have such additional time as is
reasonably necessary to complete the same before Tenant has
the right to exercise any remedies set forth in this Lease.
18. Damage or Destruction by Eminent Domain, Fire or Casualty.
(a) In the event that the Premises and/or Building and/or
Lot, or any material part thereof, shall be taken by any public
authority or for any public use, or shall be destroyed or damaged
by fire or casualty, or by the action of any public authority,
then this Lease may be terminated at the election of Landlord.
Such election shall be made by the giving of written notice by
Landlord to Tenant within thirty (30) days after the right of
election accrues. If by such taking Tenant is deprived of the
use of more than thirty percent (30%) of the Square Footage of
the Premises, or if by such fire or other casualty more than
fifty percent (50%) of the Square Footage of the Premises shall
be rendered untenable, and if Landlord does not within a
reasonable time after notice from Tenant commence and diligently
pursue to rebuild or repair, Tenant may at its option terminate
this Lease by notice in writing to Landlord within thirty (30)
days after the date of such damage or destruction, or within
thirty (30) days after it has received notice of such taking, as
the case may be. If either Landlord or Tenant exercises such
option, this Lease shall terminate on the date designated in its
notice of termination, which shall be not less than fifteen (15)
nor more than thirty (30) days after the date of such notice.
(b) If this Lease is not terminated pursuant to the
provisions of Paragraph 18(a) above, this Lease shall
continue in full force and effect and a just proportion of
the Annual Rent shall be suspended or abated until the
Premises shall be put by Landlord in proper condition for
use, which Landlord covenants to do with reasonable
diligence and to the extent permitted by the net proceeds of
insurance recovered or damages awarded for such destruction
or taking, and subject to zoning and building laws then in
existence. "Net proceeds of insurance recovered or damaged
awarded" refers to the gross amount of such insurance or
award less the reasonable expenses of Landlord in connection
with the collection of same, including without limitations,
reasonable fees and expenses for legal and appraisal
services. In the case of a taking which permanently reduces
the Square Footage of the Premises, the rent shall be abated
for the remainder of the Term in proportion to the amount by
which the Square Footage has been reduced.
(c) Irrespective of the form in which recovery may be had
by law, all rights to damages or compensation shall belong to
Landlord in all cases, except for damages to Tenant's fixtures,
property or equipment, and for damages, if any, separately
awarded for relocation expenses and business interruption,
provided that none of the same shall reduce the damages or
compensation which Landlord would otherwise recover. Tenant
hereby grants to Landlord all of Tenant's rights to such damages
and awards and covenants to deliver such further assignments
thereof as Landlord may from time to time request.
19. Tenant's Default.
(a) Events of Default. The following shall be "Events of
Default" under this Lease:
(i) If Tenant shall fail to pay any monthly
installment of Annual Rent or Additional Rent when due, and such
default shall continue for ten (10) days after written notice from
Landlord; provided that no such notice shall be required if Tenant has
received a similar notice within three hundred sixty-five (365)
days prior to such violation or failure;
(ii) If Tenant shall fail to timely make any other
payment required under this Lease and such default shall continue
for ten (10) days after written notice from Landlord; provided
that no such notice shall be required if Tenant has received a
similar notice within three hundred sixty-five (365) days prior
to such violation or failure;
(iii) If Tenant shall violate or fail to perform any
of the other terms, conditions, covenants or agreements herein
made by Tenant, if such violation or failure continues for a
period of thirty (30) days after Landlord's written notice
thereof to Tenant; provided that no such notice shall be required
if Tenant has received a similar notice within three hundred
sixty-five (365) days prior to such violation or failure;
(iv) Tenant's becoming insolvent, as that term is
defined in Title 11 of the United States Code, entitled
Bankruptcy, 11 U.S.C. Section 101 et. seq. (the "Bankruptcy
Code"), or under the insolvency laws of any State, District,
Commonwealth or Territory of the United States (the "Insolvency
Laws");
(v) the appointment of a receiver or custodian for all
or a substantial portion of Tenant's property or
assets, or the institution of a foreclosure action upon
all or a substantial portion of Tenant's real or
personal property;
(vi) the filing of a voluntary petition under the
provisions of the Bankruptcy Code or Insolvency Laws;
(vii) the filing of an involuntary petition against
Tenant as the subject debtor under the Bankruptcy Code or
Insolvency Laws, which is either not dismissed within forty-five
(45) days of filing, or results in the issuance of an order for
relief against the debtor, whichever is earlier;
(viii) Tenant's making or consenting to an assignment
for the benefit of creditors or a common law
composition of creditors; or
(ix) Tenant's interest in this Lease being taken on
execution in any action against the Tenant.
(b) Landlord's Remedies. Should an Event of Default occur
under this Lease, Landlord may pursue any or all of the following
remedies:
(i) Termination of Lease. Landlord may terminate this
Lease by giving written notice of such termination to
Tenant, or by reentry, whereupon the mailing of such
notice of termination addressed to Tenant, or in the
case of reentry, upon such reentry, with or without
notice or demand and with or without process of law
(forcibly if necessary), this Lease shall automatically
cease and terminate and Tenant shall be immediately
obligated to quit the Premises. Termination by entry
or notice as provided herein shall be effective and
complete upon entry or the mailing of notice,
respectively, and shall require no further action on
the part of Landlord including, without limitation,
resort to legal process under applicable law. Any
other notice to quit or notice of Landlord's intention
to reenter the Premises is hereby expressly waived. If
Landlord elects to terminate this Lease, everything
contained in this Lease on the part of Landlord to be
done and performed shall cease without prejudice,
subject, however, to the right of Landlord to recover
from Tenant all Annual Rent and Additional Rent and any
other sums accrued up to the time of termination or
recovery of possession by Landlord, whichever is later.
(ii) Suit for Possession. Landlord may proceed to
recover possession of the Premises under and by virtue of the
provisions of the laws of the state in which the Premises are
located or by such other proceedings, including reentry and
possession, as may be applicable.
(iii) Reletting of Premises. Should this Lease be
terminated before the expiration of the Term of this Lease by
reason of Tenant's default as hereinabove provided, or if Tenant
shall abandon or vacate the Premises before the expiration or
termination of the Term of this Lease without having paid the
full rental for the remainder of such Term, Landlord shall have
the option, but not the obligation, to relet the Premises for
such rent and upon such terms as are not unreasonable under the
circumstances and, if the full Annual Rent and Additional Rent
reserved under this Lease (and any of the costs, expenses or
damages indicated below) shall not be realized by Landlord,
Tenant shall be liable for all damages sustained by Landlord,
including, without limitation, deficiency in rent, reasonable
attorneys' fees, brokerage fees and expenses of placing the
Premises in first-class rentable condition including without
limitation any alterations and improvements. Landlord, in
putting the Premises in good order or preparing the same for
rerental may, at Landlord's option, make such alterations,
repairs or replacements in the Premises as Landlord, in its sole
judgment, considers advisable and necessary for the purpose of
reletting the Premises, and the making of such alterations,
repairs, or replacements shall not operate or be construed to
release Tenant from liability hereunder as aforesaid. Landlord
shall in no event be liable in any way whatsoever for failure to
relet the Premises, or in the event that the Premises are relet,
for failure to collect the rent under such reletting, and in no
event shall Tenant be entitled to receive the excess, if any, of
such net rent collected over the sums payable by Tenant to
Landlord hereunder.
(iv) Acceleration of Payment. If Tenant shall fail to
pay any monthly installment of Annual Rent and/or
Additional Rent pursuant to the terms of this Lease,
within ten (10) days of the date when each such payment
is due, for three (3) consecutive months, or three (3)
times in any period of twelve (12) consecutive months,
then Landlord may, by giving written notice to Tenant,
exercise any of the following options: (A) declare the
entire rent reserved under this Lease to be due and
payable within ten (10) days of such notice; (B)
declare the rent reserved under this Lease for the next
six (6) months (or at Landlord's option for a lesser
period) to be due and payable within ten (10) days of
such notice; or (C) require an additional security
deposit to be paid to Landlord within ten (10) days of
such notice in an amount not to exceed six (6) months
rent. Landlord may invoke any of the options provided
for herein at any time during which an Event of Default
remains uncured.
(v) Monetary Damages. Any damage or loss of rent
sustained by Landlord may be recovered by Landlord, at Landlord's
option, at the time of the reletting, or in separate actions,
from time to time, as said damage shall have been made more
easily ascertainable by successive relettings, or at Landlord's
option in a single proceeding deferred until the expiration of
the Term of this Lease (in which event Tenant hereby agrees that
the cause of action shall not be deemed to have accrued until the
date of expiration of said Term) or in a single proceeding prior
to either the time or reletting or the expiration of the Term of
this Lease. In addition, should it be necessary for Landlord to
employ legal counsel to enforce any of the provisions herein
contained, Tenant agrees to pay all attorney's fees and court
costs reasonably incurred.
(vi) Anticipatory Breach; Cumulative Remedies.
Nothing contained herein shall prevent the enforcement of any
claim Landlord may have against Tenant for anticipatory breach
of the unexpired Term of this Lease. In the event of a breach
or anticipatory breach by Tenant of any of the covenants or
provisions hereof,Landlord shall have the right of injunction
and theright to invoke any remedy allowed at law or in equity
as if reentry, summary proceedings and other remedies
were not provided for herein. Mention in this Lease of
any particular remedy shall not preclude Landlord from
any other remedy, in law or in equity, whether or not
mentioned herein. Landlord's election to pursue one or
more remedies, whether as set forth herein or
otherwise, shall not bar Landlord from seeking any
other or additional remedies at any time and in no
event shall Landlord ever be deemed to have elected one
or more remedies to the exclusion of any other remedy
or remedies. Any and all rights and remedies that
Landlord may have under this Lease, and at law and in
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 insofar as permitted by law. Tenant hereby
expressly waives any and all rights of redemption
granted by or under any present or future laws in the
event of Tenant being evicted or dispossessed for any
cause, or in the event of Landlord obtaining possession
of the Premises, by reason of the violation by Tenant
of any of the covenants and conditions of this Lease,
or otherwise.
(c) Waiver. If, under the provisions hereof, Landlord
shall institute proceedings against Tenant and a compromise or
settlement thereof shall be made, the same shall not constitute a
waiver of any other covenant, condition or agreement herein
contained, nor of any of Landlord's rights hereunder. No waiver
by Landlord of any breach of any covenant, condition or agreement
herein contained shall operate as a waiver of such covenant,
condition, or agreement itself, or of any subsequent breach
thereof. No payment by Tenant or receipt by Landlord of a lesser
amount than the monthly installments of rent herein stipulated
shall be deemed to be other than on account of the earliest
stipulated rent, nor shall any endorsement or statement on any
check or letter accompanying a check for payment of Annual Rent,
Additional Rent or any other sum 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 Annual Rent, Additional Rent or any other sum or so pursue
any other remedy provided in this Lease. No reentry by Landlord,
and no acceptance by Landlord of keys from Tenant, shall be
considered an acceptance of a surrender of the Lease or Premises.
(d) Right of Landlord to Cure Tenant's Default. If Tenant
defaults in the making of any payment or in the doing of any
act herein required to be made or done by Tenant, then
Landlord may, but shall not be required to, make such
payment or do such act, and charge the amount of the expense
thereof, if made or done by Landlord, with interest thereon
at the rate per annum which is four percent (4%) greater
than the "base lending rate" then in effect at The First
National Bank of Boston, Boston, Massachusetts, or the
highest rate permitted by law, whichever may be less; with
it being the express intent of the parties that nothing
herein contained shall be construed or implemented in such a
manner as to allow Landlord to charge or receive interest in
excess of the maximum legal rate then allowed by law. Such
payment and interest shall constitute Additional Rent
hereunder due and payable with the next monthly installment
of Annual Rent; but the making of such payment or the taking
of such action by Landlord shall not operate to cure such
default or to stop Landlord from the pursuit of any remedy
to which Landlord would otherwise be entitled.
(e) Late Payment. If Tenant fails to pay any installment
of Annual Rent and/or Additional Rent on or before the first
(1st) day of the calendar month when such installment becomes due
and payable, Tenant shall pay to Landlord a late charge of five
percent (5%) of the amount of such installment, and, in addition,
such unpaid installment shall bear interest at the rate per annum
which is four percent (4%) greater than the "base lending rate"
then in effect at The First National Bank of Boston, Boston,
Massachusetts, or the highest rate permitted by law, whichever
may be less; with it being the express intent of the parties that
nothing herein contained shall be construed or implemented in
such manner as to allow Landlord to charge or receive interest in
excess of the maximum legal rate then allowed by law. Such late
charge and interest shall constitute Additional Rent hereunder
due and payable with the next monthly installment of Annual Rent
due, or if payments have been accelerated pursuant to this
Paragraph 19, due and payable immediately.
(f) Lien on Personal Property. Landlord shall have a lien
upon all the personal property of Tenant moved into the
Premises, as and for security for the Annual Rent,
Additional Rent and other obligations of Tenant herein
provided. In order to perfect and enforce said lien,
Landlord may, at any time after default by Tenant in the
payment of Annual Rent, Additional Rent or default of other
obligations to be performed or complied with by Tenant under
this Lease, seize and take possession of any and all
personal property belonging to Tenant that may be found in
and upon the Premises. If Tenant fails to redeem the
property so seized, by payment of whatever sum may be due
Landlord under and by virtue of the provisions of this
Lease, then and in that event, Landlord shall have the
right, after twenty (20) days written notice to Tenant of
its intention to do so, to sell such personal property so
seized at public or private sale and upon such terms and
conditions as to Landlord may appear advantageous, and after
the payment of all proper charges incident to such sale,
apply the proceeds thereof to the payment of any balance due
to Landlord on account of Annual Rent, Additional Rent or
other obligations of Tenant pursuant to this Lease. In the
event there shall then remain in the hands of Landlord any
balance realized from the sale of said personal property as
aforesaid, the same shall be held by Landlord as additional
Security Deposit. The exercise of the foregoing remedy by
Landlord shall not relieve or discharge Tenant from any
deficiency owed to Landlord which Landlord has the right to
enforce pursuant to any other provisions of this Lease.
20. Liability of Landlord; Indemnification.
(a) Landlord shall not be liable to Tenant, its employees,
agents, contractors, business invitees, licensees,
customers, clients, family members or guests for any damage,
compensation or claim arising from (i) the necessity of
repairing any portion of the Premises, Building or Lot, (ii)
the interruption in the use of the Premises, (iii) accident
or damage to persons or property resulting from the use or
operation (by Landlord, Tenant, or any other person or
persons whatsoever) of the Premises or of any elevators or
heating, cooling, electrical or plumbing equipment or
apparatus in the Premises or Building, (iv) the termination
of this Lease by reason of the destruction of the Premises,
(v) any fire, robbery, theft, mysterious disappearance
and/or any other casualty, (vi) any leakage in any part or
portion of the Premises or the Building, or from water, rain
or snow that may leak into, or flow from, any part of the
Premises or the Building, or from drains, pipes or plumbing
work in the Building, or from any other cause whatsoever, or
(vii) for any personal injury arising from the use,
occupancy and condition of the Premises, unless such
personal injury is caused by the gross negligence of
Landlord, or a willful act or failure to act on the part of
Landlord. Tenant shall not be entitled to any abatement or
diminution of rent as a result of any of the foregoing
occurrences, nor shall the same release Tenant from its
obligations hereunder or constitute an eviction. Any goods,
property or personal effects of Tenant, its employees,
agents, contractors, business invitees, licensees,
customers, clients, family members or guests, stored or
placed in or about the Premises, Building or Lot shall be at
their risk, and the Landlord shall not in any manner be held
responsible therefor. The employees of the Landlord are
prohibited from receiving any packages or other articles
delivered to the Building by Tenant, and if any such
employee receives any such package or articles, such
employee shall be the agent of the Tenant for such purposes
and not of the Landlord. Tenant acknowledges that Landlord
will not carry insurance on Tenant's furniture, furnishings,
fixtures, equipment and/or improvements in or to the
Premises and Tenant shall have full responsibility therefor
and shall bear the full risk of loss thereto. It is
expressly understood and agreed that Tenant shall look to
its business interruption and property damage insurance
policies, and not to Landlord or its agents or employees,
for reimbursement for any damages or losses incurred as a
result of any of the foregoing occurrences, other than
clause (a)(vii) above, and that said policies shall contain
waiver of subrogation clauses.
(b) If Landlord shall fail to perform any covenant, term or
condition of this Lease upon Landlord's part to be performed
or be guilty of negligence with regard to any party claiming
by, under or through Tenant and, as a consequence of such
default or negligence, Tenant shall recover a money judgment
against Landlord, such judgment shall be satisfied only out
of the proceeds of sale received upon execution of such
judgment and levy thereof against the right, title and
interest of Landlord in the Premises, Building and Lot, and
neither Landlord nor any of the partners designated herein
as Landlord comprising any partnership designated herein as
Landlord or any trustees or beneficiaries designated herein
as Landlord shall be personally liable for any judgment
rendered against Landlord or any deficiency thereunder. It
is agreed that in no event shall Tenant have any right to
levy execution against any property of Landlord other than
its interest in the Premises, Building and Lot and the rents
or other income therefrom as hereinbefore expressly
provided. In the event of sale or other transfer of
Landlord's right, title and interest in the Premises,
Building and Lot, Landlord shall be released from all
liability and obligations hereunder. If all or any part of
Landlord's interest in this Lease shall be held by a trust,
no trustee, shareholder or beneficiary of such trust shall
be personally liable for any of the covenants or agreements,
expressed or implied, hereunder. IN NO EVENT SHALL
LANDLORD EVER BE PERSONALLY LIABLE TO
TENANT OR ANYONE CLAIMING BY, UNDER OR
THROUGH TENANT FOR CONSEQUENTIAL DAMAGES,
SUCH DAMAGES OR CLAIMS THEREFOR BEING
HEREBY EXPRESSLY WAIVED BY TENANT.
(c) Tenant hereby agrees to indemnify and hold Landlord
harmless from and against any cost, damage, claim, liability or
expense (including attorney's fees) incurred by or claimed
against Landlord, directly or indirectly, which is occasioned by
or results from any default hereunder or any willful or negligent
act or omission on the part of Tenant, its agents, employees,
contractors, invitees, licensees, customers, clients, family
members and guests, or as a result of or in any way arising from
Tenant's use and occupancy of the Premises, Building and/or Lot
or in any other manner which relates to the business of Tenant.
Any such cost, damage, claim, liability or expense incurred by
Landlord for which Tenant is obligated to reimburse Landlord
shall be deemed Additional Rent due and payable as Additional
Rent upon demand by Landlord. It is expressly understood and
agreed that Tenant's liability under this Lease extends to the
acts and omissions of any subtenant or assignee and any agent,
employee, contractor, invitee, licensee, customer, client, family
member and guest of any subtenant or assignee.
21. Lease Not to be Recorded. Tenant agrees that it will not
record this Lease. Both parties shall, upon the request of
either, execute and deliver a notice or short form of this Lease
in such form, if any, as may be permitted by applicable statute.
If this Lease is terminated before the Term expires, the parties
shall execute, deliver and record an instrument acknowledging
such fact and the actual date of termination of this Lease, and
Tenant hereby appoints Landlord its attorney-in-fact in its name
and on its behalf to execute and record such instrument, such
appointment being coupled with an interest and irrevocable.
22. Severability. It is agreed that if any provision of this
Lease shall be determined to be void by any court of competent
jurisdiction, then such determination shall not affect any other
provisions of this Lease, all of which other provisions shall
remain in full force and effect; and it is the intention of the
parties that if a provision of this Lease is capable of two
constructions, one of which would render the provision void and
the other of which would render the provision valid, then the
provision shall have the meaning which renders it valid.
23. Delays. In any case where either party hereto is required
to do any act, other than the payment of money including without
limitation Annual Rent and Additional Rent, and is delayed in so
doing by reason of or resulting from an Act of God, war, civil
commotion, fire or other casualty, labor difficulties, shortages
of labor, materials or equipment, government regulations or other
causes beyond such party's reasonable control, such period of
time shall not be counted in determining the time during which
such work or act shall be completed, whether such time shall be
designated by a fixed date, a fixed time or "a reasonable time".
In any case where work is to be paid for out of insurance
proceeds or condemnation awards, due allowance shall be made for
delays in the collection of such proceeds and awards.
24. Estoppel Certificates. Tenant and Landlord each agree from
time to time, upon not less than fifteen (15) days prior
written request, to execute, acknowledge and deliver to the
other a statement in writing certifying that this Lease is
unmodified and in full force and effect, or if modified,
stating the modifications; that the requested party has no
defenses, offsets or counterclaims against its obligations
under this Lease (including Tenant's obligation to pay
Annual Rent and Additional Rent) or, if there are any
defenses, offsets, or counterclaims, setting them forth in
reasonable detail; and setting forth the dates to which the
Annual Rent and Additional Rent and other charges have been
paid. Any such statement delivered pursuant to this
paragraph may be relied upon by any prospective purchaser or
mortgagee of the Premises, Building and/or Lot, or any
prospective assignee of any such mortgage, or any
prospective assignee of this Lease, or any other similarly
interested party.
25. Waiver of Subrogation. Tenant and Landlord each hereby
release the other to the extent of their respective insurance
coverage, from any and all liability for any loss or damage
caused by fire or any of the extended coverage casualties or any
other casualty insured against, even if such fire or other
casualty shall be brought about by the fault or negligence of
Tenant, Landlord or their agents. Tenant and Landlord agree that
their respective policies covering such loss or damage shall
contain a clause to the effect that this release shall not affect
said policies or the right of Tenant or Landlord, as the case may
be, to recover thereunder and otherwise acknowledging this mutual
waiver of subrogation.
26. Waiver. No waiver of any condition or legal right or remedy
shall be implied by the failure of Landlord to declare a
forfeiture, or any other reasons, and no waiver of any
condition or covenant shall be valid unless it be in writing
signed by Landlord. No waiver by Landlord in respect to one
tenant of the Building or Lot shall constitute a waiver in
favor of any other tenant, nor shall the waiver or a breach
of any condition or covenant be claimed or pleaded to excuse
a future breach of the same condition or covenant. The
mention in this Lease of any specific right or remedy shall
not preclude Landlord from exercising any other right or
from having any other remedy or from maintaining any action
to which it may be otherwise entitled either at law or in
equity; and for the purpose of any suit by Landlord brought
or based on this Lease, this Lease shall be construed to be
a divisible contract, to the end that successive actions may
be maintained as successive periodic sums shall mature under
this Lease. It is further agreed that failure to include in
any suit or action any sum or sums then matured shall not be
a bar to the maintenance of any suit or action for the
recovering of said sum or sums so omitted at a later time.
27. Surrender and Holding Over. Tenant shall deliver up and
surrender to Landlord possession of the Premises upon the
expiration of the Term of this Lease or its earlier termination
in any way, broom clean and in as good condition and repair as
the same shall be at the commencement of said Term (damage by
fire and other perils covered by standard fire and extended
coverage insurance and ordinary wear and tear, subject to
Paragraph 9 of this Lease, only excepted), and shall deliver the
keys at the office of Landlord or Landlord's agent. Should
Tenant or any party claiming under Tenant remain in possession of
the Premises, or any part thereof, after any termination of this
Lease, no tenancy or interest in the Premises shall result
therefrom but such holding over shall be an unlawful detainer and
all such parties shall be subject to immediate eviction and
removal, and Tenant shall upon demand pay to Landlord, as
liquidated damages, a sum equal to double the Annual Rent,
Additional Rent and any other sums to be paid as specified herein
for any period during which Tenant shall hold the Premises after
the stipulated Term of this Lease may be terminated or have
expired.
28. Lease Inures to Benefit of Successors and Assigns. Subject
to the provisions hereof, this Lease and all the terms,
covenants, provisions and conditions herein contained shall
inure to the benefit of and be binding upon their respective
successors and assigns including, without limitation, their
heirs, personal representative, debtor in possession,
trustee, custodian, receiver, or any similar functionary
serving in proceedings brought by or against Landlord or
Tenant (or their respective successors and assigns) under
the Bankruptcy Code (as now or hereafter in effect),
Insolvency Laws, or any similar laws relating to bankruptcy,
insolvency or the adjustment of debts, provided, however,
that no subletting or assignment by, from, through or under
Tenant in violation of the provisions hereof shall vest in
the subletees or assigns any right, title or interest
whatever.
29. Quiet Enjoyment. Landlord hereby covenants and agrees that
if Tenant shall perform all the covenants, agreements and
other provisions herein stipulated to be performed or
observed on Tenant's part, Tenant shall at all time during
the continuance hereof have the peaceable and quiet
enjoyment and possession of the Premises without any manner
of molestation or hindrance from Landlord or any person or
persons lawfully claiming under Landlord, subject, however,
to the terms of this Lease and any instruments having a
prior lien. The rights granted by this Paragraph are in
lieu of any other rights Tenant may have by statute or at
law.
30. No Partnership. Landlord does not, in any way or for any
purpose, become a partner of Tenant in the conduct of its
business, or otherwise, or joint venturer or a member of a joint
enterprise with Tenant.
31. Notices. Any notice or consent required to be given by or
on behalf of either party to the other shall be in writing and
shall be given by mailing such notice or consent by registered or
certified mail, return receipt requested, postage prepaid,
addressed, if to Landlord, at the address hereinabove specified,
and, if to Tenant, at the address hereinabove specified if prior
to the Commencement Date and thereafter to the Premises, or at
such other address as may be specified from time to time in
writing sent to the other party by like notice. Notices so given
shall be deemed to be given and effective at the time they are
deposited with the United States Postal Service.
32. Interpretation. Wherever either the word "Landlord" or
"Tenant" is used in this Lease, it shall be considered as meaning
the parties respectively, wherever the context permits or
requires, and when the singular and/or neuter pronouns are used
herein, the same shall be construed as including all persons and
corporations designated respectively as Landlord or Tenant in
this instrument wherever the context requires.
33. Paragraph Headings. The paragraph headings are inserted
only as a matter of convenience and for reference and in no way
define, limit or describe the scope or intent of this Lease nor
in any way affect this Lease.
34. Broker's Commissions. Tenant warrants that there are no
claims for broker's commission or finder's fees in connection
with its execution of this Lease or the tenancy hereby created
and agrees to indemnify and save Landlord harmless from any
liability that may arise from such claim, including reasonable
attorneys fees.
35. Interruption of Services. With respect to any services
furnished by Landlord to Tenant, Landlord shall in no event be
liable for failure to furnish the same when prevented from doing
so by strike, lockout, breakdown, accident, order or regulation
of or by any governmental authority, or failure of supply, or
inability by the exercise of reasonable diligence to obtain
supplies, parts or employees necessary to furnish such services,
or because of war or other emergency, or for any cause beyond
Landlord's reasonable control, or for any cause due to any act or
neglect of Tenant or its servants, agents, employees, licensees
or any person claiming by, through or under Tenant, and in no
event shall Landlord ever be liable to Tenant for any indirect or
consequential damages.
36. Subordination. Upon the written request of Landlord, Tenant
shall enter into a recordable agreement with the holder of
any present or future mortgage of the Premises, Building or
Lot which shall provide that (i) this Lease shall be
subordinated to such mortgage, (ii) in the event of
foreclosure of said mortgage or any other action thereunder
by the mortgagee, the mortgagee (and its successors in
interest) and Tenant shall be directly bound to each other
to perform the respective undischarged obligations of
Landlord and Tenant hereunder (in the case of Landlord
accruing after such foreclosure or other action and in the
case of Tenant whether accruing before or after such
foreclosure or other action), (iii) this Lease shall
continue in full force and effect, and (iv) Tenant's rights
hereunder shall not be disturbed, except as in this Lease
provided. The word "mortgage" as used herein includes
mortgages, deeds of trust and all similar instruments, all
modifications, extensions, renewals and replacements
thereof, and any and all assignments of the Landlord's
interest in this Lease given as collateral security for any
obligation of Landlord.
37. Modification. In the event that any holder or prospective
holder of any mortgage, as hereinbefore defined, which includes
the Premises as part of the mortgaged Premises, shall request any
modification of any of the provisions of this Lease, other than a
provision directly related to the Annual Rent, Additional Rent or
other sums payable hereunder, the duration of the Term hereof, or
the size, use or location of the Premises, Tenant agrees that
Tenant will enter into a written agreement in recordable form
with such holder or prospective holder which shall effect such
modification and provide that such modification shall become
effective and binding upon Tenant and shall have the same force
and effect as an amendment to this Lease in the event of
foreclosure or other similar action taken by such holder or
prospective holder or by anyone claiming by, through or under
such holder or prospective holder.
38. Multiple Parties. If Tenant shall consist of more than one
person or if there shall be a guarantor of Tenant's
obligations, then the liability of all such persons,
including the guarantor, if any, shall be joint and several.
39. Submission Not an Option. The submission of this Lease for
examination and negotiation does not constitute an offer to
lease, a reservation of, or option for the Premises and
shall vest no right in any party. Tenant or anyone claiming
under or through Tenant shall have the rights to the
Premises as set forth herein and this Lease becomes
effective as a Lease only upon execution and acknowledgement
thereof by Landlord and Tenant, regardless of any written or
verbal representation of any agent, manager or employee of
Landlord to the contrary.
40. Financial Information. It is hereby understood and agreed
that TENANT will supply to the LANDLORD, on an annual basis, a
copy of TENANT'S audited financial statement within one hundred
twenty (120) days following TENANT'S fiscal year end. Any
information obtained by LANDLORD pursuant to the provisions of
this Paragraph shall be treated as confidential, except that
LANDLORD may disclose such information to its lenders.
41. Signage
Tenant shall have the right, at Tenant's sole cost and
expense, to install new signage, the size and location of
which to be mutually agreed upon by Landlord and Tenant.
Notwithstanding the foregoing, any signage proposed by
Tenant must have Landlord's prior written approval, which
approval shall be at the reasonable discretion of the
Landlord, and must be in conformance with the standard sign
design criteria established by Landlord for the building and
the Town of Danvers. The Tenant, at its sole cost and
expense, shall be responsible for obtaining all municipal
and other approvals necessary for the erection and
maintenance of such sign. The Landlord shall cooperate with
the Tenant in its filing of applications for any such
approvals, provided that the Tenant shall pay all costs
associated with such applications and approvals.
42. Entire Agreement. This Lease and the exhibits and any rider
attached hereto, set forth all the covenants, promises,
agreements conditions, representations and understandings
between Landlord and Tenant concerning the Premises and
there are no covenants, promises, agreements, conditions,
representations or understandings, either oral or written
between them other than those herein set forth and this
Lease expressly supersedes any proposals or other written
documents relating hereto. Except as herein otherwise
provided, no subsequent alteration, amendment, change or
addition to this Lease shall be binding upon Landlord and
Tenant unless reduced to writing and signed by them. Tenant
agrees that Landlord and its agents have made no
representations or promises with respect to the Premises, or
the Building of which the Premises are a part, or the Lot,
except as herein expressly set forth.
IN WITNESS WHEREOF, the Landlord and Tenant have caused this
Lease to be signed in triplicate, under seal, as of the day and
year first above written, one copy for Tenant and two copies to
Landlord.
Witness as to Landlord:
Landlord: Thomas J. Flatley d/b/a The Flatley Company
By Thomas J. Flatley
Its President
Witness as to Tenant: Tenant: Abiomed, Inc.
By: John F. Thero
Its Vice President Finance
and Administration
Duly Authorized
Exhibit "B"
Landlord's Work
TENANT acknowledges that it has examined and inspected the
Premises and is familiar with the physical condition thereof.
TENANT further acknowledges (a) that other than in Paragraph 9 of
this Lease, LANDLORD has not made and does not hereby make any
representations regarding the physical condition of the Premises
and (b) that there are no warranties, either expressed or
implied, regarding the condition of the Premises. Any such
warranties which may exist, are hereby expressly released and
waived. Accordingly, TENANT hereby agrees to accept the Premises
in their "as-is" condition, except for the following:
1. LANDLORD shall supply and install rooftop HVAC Units to
provide heat and air conditioning to the Premises. TENANT shall
be responsible with as part of TENANT'S own fit up work to
install all supply and return air duct work and difusers.
Exhibit "C"
Tenant's Work
Tenant shall have the right, at its own cost and expense, to run
telephone and computer lines underground between the building at
24 Cherry Hill Drive, Danvers and the Premises at any time,
subject to Landlord's prior written approval of Tenant's plans,
which approval shall not be unreasonably withheld or delayed.
THE FLATLEY COMPANY
STANDARD FORM OF INDUSTRIAL LEASE
SUBMISSION NOT AN OPTION
THE SUBMISSION OF THIS LEASE FOR EXAMINATION AND
NEGOTIATION DOES NOT CONSTITUTE AN OFFER TO LEASE, A
RESERVATION OF, OR OPTION FOR THE PREMISES AND SHALL VEST NO
RIGHT IN ANY PARTY. TENANT OR ANYONE CLAIMING UNDER OR
THROUGH TENANT SHALL HAVE THE RIGHTS TO THE PREMISES AS SET
FORTH HEREIN AND THIS LEASE BECOMES EFFECTIVE AS A LEASE ONLY
UPON EXECUTION AND ACKNOWLEDGEMENT THEREOF BY LANDLORD
AND TENANT, REGARDLESS OF ANY WRITTEN OR VERBAL
REPRESENTATION OF ANY AGENT, MANAGER OR EMPLOYEE OF
LANDLORD TO THE CONTRARY.
Revision Date: 10/85
TABLE OF CONTENTS
Section Page
1. Incorporation of Basic Data 1
2. Premises 2
3. Term 2
3A. Option to Extend 3
4. Security Deposit 3
5. Annual Rent 3
6. Additional Rent
(a) Taxes 4
(b) Tax Payments 4
(c) Common Areas 5
(d) Charges for Common Areas 5
7. Utilities 6
8. Tenant's Use of Premises and
Miscellaneous Covenants. . . 6
9. Repairs to and Maintenance of Premises by Tenant 8
10. Subletting and Assignment 9
11. Alterations 11
12. Trash Removal 11
13. Mechanic's Liens 11
14. Access to Premises 12
15. Removal of Improvements 12
16. Tenant's Insurance Obligations 12
17. Repairs by Landlord 13
18. Damage or Destruction by Eminent Domain,
Fire or Casualty 13
19. Tenant's Default
(a) Events of Default 14
(b) Landlord's Remedies 15
(i) Termination of Lease 15
(ii) Suit for Possession 15
(iii)Reletting of Premises 16
(iv) Acceleration of Payment 16
(v) Monetary Damages 16
(vi) Anticipatory Breach;
Cumulative Remedies 17
(c) Waiver 17
(d) Right of Landlord to Cure Tenant's Default 17
(e) Late Payment 18
(f) Lien on Personal Property 18
20. Liability of Landlord; Indemnification 19
21. Lease Not to be Recorded 20
22. Severability 20
23. Delays 20
24. Estoppel Certificates 21
25. Waiver of Subrogation 21
26. Waiver 21
27. Surrender and Holding Over 21
28. Lease Inures to Benefit of Successors and Assigns 22
29. Quiet Enjoyment 22
30. No Partnership 22
31. Notices 22
32. Interpretation 23
33. Paragraph Headings 23
34. Broker's Commissions 23
35. Interruption of Services 23
36. Subordination 23
37. Modification 23
38. Multiple Parties 24
39. Submission Not an Option 24
40. Financial Information 24
41. Signage 24
42. Entire Agreement 24
Exhibit "A" 27
Exhibit "B" 28
LEASE AGREEMENT
(Standard Industrial Form)
This Lease is made as of this 8th day of August, 1996, by
and between the party named as landlord in the "Basic Data" set
forth below (hereinafter "Landlord") and the party named as
tenant in the "Basic Data" set forth below (hereinafter
"Tenant"). In consideration of the mutual covenants herein set
forth, the parties agree as follows:
1. Incorporation of Basic Data. All capitalized terms in
this Lease shall have the meanings as described to them in the
Basic Data set forth below unless otherwise defined herein.
BASIC DATA
Landlord: shall mean Thomas J. Flatley d/b/a The Flatley
Company, having a principal place of business and
current mailing address at 50 Braintree Hill Office
Park, Braintree, MA 02184.
Tenant: shall mean Abiomed, Inc., having a principal
place of business and current mailing address at 33 Cherry
Hill Park, Danvers, MA 01923.
Premises: shall mean 18,203 square feet, being
the approximate size of the Premises and the basis on which
Annual Rent and Additional Rent shall be paid by Tenant to
Landlord, in the building located at Cherry Hill
Park, 33 Cherry Hill Drive, Danvers, MA 01923 (the
"Building"), which Building is located on a lot (the
"Lot"), all as such Premises, Building and Lot are
described and/or outlined in Exhibit A.
Term: shall mean the period of five (5) years commencing
upon the Commencement Date.
Adjustment of Term: If the Commencement Date is other
than the first day of a calendar month, this Lease shall
continue in full force and effect for a period of five (5) years
from the first day of the calendar month next
succeeding the Commencement Date.
Security
Deposit: INTENTIONALLY OMITTED.
Annual
Rent: shall mean the annual sum of ONE HUNDRED THOUSAND
ONE HUNDRED SIXTEEN AND 50/100 Dollars
($100,116.50), payable in equal monthly installments
of EIGHT THOUSAND THREE HUNDRED FORTY-THREE AND
04/100 Dollars ($8,343.04), for the first (1st)
through and including the fifth (5th) full year of
the Lease Term, all payable in accordance with
Paragraph 5 of this Lease plus all other charges,
amounts, reimbursements or other sums (collectively
"Additional Rent") to be paid by Tenant to Landlord
in accordance with Paragraph 6 and any other terms
of this Lease calling for the payment of money by
Tenant to Landlord.
Use: shall mean manufacturing, research and development,
sales and/or office use and animal research and
medical use, not involving the emission of
objectionable odors, fumes, noise or vibration that
do not meet OSHA guidelines and for no other use,
and from time to time to procure all licenses and
permits necessary therefor.
Commence-
ment Date: shall mean July 1, 1996.
Landlord and Tenant agree to execute a Supplemental
Agreement setting forth the actual Occupancy and
Term Dates, once the same have been established.
Tenant's
Pro Rata
Share: shall be based on the fraction:
Square Footage of TENANT's Premises = 18,203
Aggregate of All the Rentable Square Footage 60,600
(whether or not rented or improved within the entire Building)
Tenant's
Insurance
Require-
ments: Public Liability: ONE MILLION AND 00/100
($1,000,000.00) Dollars for injury to one person,
ONE MILLION AND 00/100 ($1,000,000.00) Dollars for
injury to more than one person, per incident.
Property Damage: ONE MILLION AND 00/100
($1,000,000.00) Dollars per incident.
2. Premises. Landlord hereby leases to Tenant, and Tenant
hereby leases from Landlord, subject to and with the benefit of
the terms, covenants, conditions and provisions of this Lease,
the Premises, but reserving and excepting to Landlord the use of
the exterior walls, the roof and the right to install, maintain,
use, repair and replace pipes, ducts, conduits, wires and
appurtenant fixtures leading through the Premises and serving
other parts of the Building or Lot in locations which will not
materially interfere with Tenant's use thereof. Exhibit A is
intended only to show the location of the Premises in relation to
the Building and/or Lot and the initial size of such Building and
Lot, and other data thereon is to be disregarded and in no event
deemed or construed to be a representation that the Building or
buildings, parking areas or other improvements shown thereon will
be constructed and/or maintained as indicated thereon, or that
additions to, or reductions from, the Building or Lot may not be
made by the Landlord during the Term of this Lease, but rather
the Landlord shall have the right to do so and any such addition
or reduction shall take effect upon Landlord's giving notice to
Tenant to that effect. Landlord reserves the right to construct
or sell any free-standing buildings on any portion of the Lot.
3. Term. The Term of this Lease shall commence upon the
Commencement Date, which shall be the date set forth in
the Basic Data, subject to Paragraph 23 concerning
unavoidable delays. The Premises shall be deemed ready for
occupancy under the terms of this Lease and Landlord's
obligation to deliver the Premises to Tenant as of the
Commencement Date shall be deemed fulfilled if Landlord's
construction within the Premises as required herein is
substantially completed with the exception of minor items
which can be fully completed within thirty (30) days without
material interference with Tenant's occupancy of the
Premises. The use by Tenant of the Premises for business
shall be deemed conclusive that the Premises were
substantially completed and that Tenant accepted delivery of
the Premises as substantially completed. Landlord's
construction and other work shall be as set forth in Exhibit
B hereto.
3A. In the event Tenant has not been in default of any of the
terms, conditions and covenants of this Lease Agreement and
any Amendments made hereto during the Term hereof, Landlord
shall grant to Tenant an option to extend the Term of this
Lease for an additional period of Five (5) years, subject to
the following terms and conditions:
1. The Premises shall be offered to Tenant at the then
current market rent rate and terms.
2. Tenant must exercise this option no earlier than nine
(9) calendar months but no later than six (6) calendar
months prior to the termination date of this Lease by
sending written notice to Landlord by registered or
certified mail.
Thereupon, this Lease shall be deemed extended for an
additional period of Five (5) years, upon all of the same
terms and conditions of this Lease and any Amendments made
hereto with the exception of the annual rent stipulated
hereinabove.
Tenant's exercise of this renewal option shall be null and
void unless Landlord receives (i) simultaneously with the
notice of exercise and (ii) thirty (30) days before the
commencement of the Renewal Term, Tenant's certified
financial statements for the immediately preceding three (3)
year period. In the event the credit worthiness of Tenant
is not sufficient in Landlord's sole discretion to assure
the future performance of Tenant's obligations under the
Lease during the Renewal Term, Landlord may nullify Tenant's
exercise of this renewal option.
4. Security Deposit. INTENTIONALLY OMITTED.
5. Annual Rent. Tenant hereby covenants and agrees to pay to
Landlord, at the place to which notices to Landlord are required
to be sent or such other person or place as Landlord may from
time to time designate, as Annual Rent for the Premises in lawful
money of the United States, without demand, setoff or deduction,
during the Term of this Lease, the sum set forth in Basic Data,
payable in equal monthly installments as set forth there, in
advance on the first day of each and every calendar month during
said Term. Annual Rent for any fraction of a month at the
commencement or expiration of said Term shall be prorated on a
per diem basis.
6. Additional Rent.
(a) Taxes. Tenant covenants and agrees to pay, as
Additional Rent, with respect to each calendar or other
tax year beginning or ending during the Term hereof, an
amount equal to Tenant's Pro Rata Share, as set forth in the
Basic Data, of the real estate taxes (including betterments
and other special assessments) allocated to the Building and
Lot for such tax year. If there shall be more than one
taxing authority, the real estate taxes for any period shall
be the sum of the real estate taxes for said period
attributable to each taxing authority. Tenant's Pro Rata
Share of the real estate taxes shall be adjusted for and
with respect to any partial tax years on a per diem basis.
The expression "real estate taxes" shall include all general
and special assessments, so-called, rent taxes and other
governmental charges which may be charged, assessed or
imposed upon the Building and Lot or Landlord. If at any
time during the term hereof the present system of ad valorem
taxation of real property shall be changed so that in lieu
of the ad valorem tax on real property in whole or in part,
or in addition thereto, there shall be assessed on Landlord
a capital levy or other tax on, but not limited to, the
Annual Rent and/or any Additional Rent ("Gross Rents")
received with respect to the Building and Lot, or a federal,
state, county, municipal or other local income, franchise,
excise or similar tax, assessment, levy or charge (distinct
from any method of taxation prevailing at the commencement
of the Term hereof) measured by or based, in whole or in
part, upon any such Gross Rents, then any and all of such
taxes, assessments, levies or charges, to the extent that
the same would be payable if the Building and Lot were the
only property of Landlord subject to them, and if the income
from the Building and Lot were the only taxable income of
Landlord during the year in question, shall be deemed to be
included within the term "real estate taxes".
Notwithstanding anything to the contrary contained herein,
"real estate taxes" shall not include Landlord's Federal or
State income taxes as presently imposed.
(b) Tax Payments. Payment of Tenant's Pro Rata Share of
the real estate taxes allocated to the Building and Lot shall be
paid, as Additional Rent, monthly, and at the times and in the
fashion herein provided for the payment of Annual Rent. For an
initial period from the Commencement Date until the end of the
first full tax year in which the Building and/or Lot containing
the Premises shall be assessed as a completed improvement, as
distinguished from inprocess construction ("the full assessment
year"), the amount so to be paid shall be the initial monthly
payment reasonably fixed by Landlord on or about the Commencement
Date. Promptly after the determination by any taxing authority
of real estate taxes upon the Building and Lot for each tax year,
Landlord shall make a determination of the Tenant's Pro Rata
Share of the real estate taxes and if the aforesaid payments
theretofore made for such tax year by Tenant exceed Tenant's Pro
Rata Share of the real estate taxes such overpayment shall be
credited against the payments thereafter to be made by Tenant
pursuant to this paragraph; and if the real estate taxes for such
tax year are greater than such payments theretofore made on
account for such tax year, Tenant shall pay such deficiency to
Landlord within ten (10) days of demand therefor. Copies of tax
bills submitted by Landlord with any such statement shall be
conclusive evidence of the amount of real estate taxes charged,
assessed or imposed. After the full assessment year, the initial
monthly payment on account of the Tenant's Pro Rata Share of the
real estate taxes shall be replaced each year by a payment which
is one-twelfth (1-12th) of the Tenant's Pro Rata Share of the
real estate taxes for the immediately preceding tax year. An
equitable adjustment shall be made in the event of any change in
the method or system of taxation from that which is now
applicable, including without limitation any change in the dates
and periods for which such taxes were levied. Tenant shall pay
all taxes upon its signs and other property in or upon the
Premises and Tenant covenants and agrees to pay promptly when due
all municipal, county, state and federal taxes assessed against
Tenant's leasehold interest and Tenant's fixtures, furnishing,
equipment, stock-in-trade, and other personal property of any
kind owned, installed or existing in the Premises. For the
purpose of this paragraph such taxes shall not be included within
real estate taxes upon the Building and Lot.
(c) Common Areas. Tenant and its officers, employees,
agents, customers and invitees shall have the right, in common
with Landlord and all others to whom Landlord may from time to
time grant rights, to use the common areas of the Building and
Lot for their intended purposes subject to such reasonable rules
and regulations as Landlord may from time to time impose,
including the designation of specific areas in which cars owned
or operated by Tenant, its officers, employees and agents must be
parked. Tenant agrees after notice thereof to abide by such
rules and regulations and to cause its officers, employees,
agents, customers and invitees to conform thereto. Landlord
shall at all times have full control, management and direction of
the common areas and the right to put the common areas to such
use as the Landlord may determine in its sole discretion.
Landlord shall have the right at any time and from time to time
to change the layout of the common areas including, but without
limitation, the right to add to or subtract from their shape and
size and to alter their location; provided, however, Landlord
shall always maintain such amount of parking in the common areas
as may be required by local zoning law or ordinance at the time
of such parking area's original construction.
(d) Charges for Common Areas. Tenant shall pay its Pro
Rata Share of the Common Areas Maintenance Costs during the Term
of this Lease as Additional Rent and in the manner hereafter
provided. "Common Areas Maintenance Costs" as used herein shall
mean the total cost and expenses incurred by Landlord, its
agents, contractors and/or designees for operating, maintaining,
insuring (or, if Landlord elects to self insure, an amount equal
to the cost of insurance if it were to be provided by a third
party of Landlord's choosing), managing, repairing and/or
replacing all or any part of the common areas and any
installations therein, thereon, thereunder or thereover. Payment
on account of Tenant's Pro Rata Share of the Common Areas
Maintenance Costs shall be paid as Additional Rent, monthly, and
at the times and in the fashion herein provided for the payment
of Annual Rent based initially on Landlord's reasonable estimate.
Promptly after the end of the partial calendar year during which
the Term begins and promptly after the end of each year
thereafter, Landlord shall make a determination of Tenant's Pro
Rata Share of the Common Areas Maintenance Costs. If the
aforesaid payments theretofore made for such period by Tenant
exceed Tenant's Pro Rata Share, such overpayment shall be
credited against the payments thereafter to be made by Tenant
pursuant to this paragraph; and if Tenant's Pro Rata Share is
greater than such payments theretofore made on account for such
period, Tenant shall pay such deficiency to Landlord within ten
(10) days of demand therefore. The initial monthly payment on
account of the Common Areas Maintenance Costs shall be replaced
after Landlord's determination of Tenant's Pro Rata Share thereof
for the preceding accounting period by a payment which is
one-twelfth (1/12th) of Tenant's actual Pro Rata Share thereof
for the immediately preceding accounting period, with adjustments
as appropriate where such preceding period is less than a full
twelve-month period. Appropriate adjustments shall be made for
any partial month at the commencement of the Term and for any
partial month or year at the end of the Term.
7. Utilities. Tenant agrees to pay or cause to be paid, as
Additional Rent, directly to the authority or party charged with
the collection thereof, all charges for gas, electricity, light,
heat, power, water, sewerage, telephone or other service used,
rendered or supplied to or for the Tenant upon or in connection
with the Premises throughout the Term of this Lease, and to
indemnify Landlord and save it harmless against any liability or
damages on such account. Tenant shall also at its sole cost and
expense procure any and all necessary permits, licenses or other
authorizations required for the lawful and proper maintenance and
use upon the Premises of wires, pipes, conduits, tubes and other
equipment and appliances for use in supplying any such services
to and upon the Premises except such permits, licenses and
authorizations which shall be required in connection with
original construction of the Premises, which shall be obtained by
Landlord. It is understood and agreed that Landlord shall be
under no obligation to furnish any utilities to the Premises and
shall not be liable for any interruption or failure in the supply
of any such utilities to the Premises. If a charge shall be made
from time to time by the public authority having jurisdiction of
the Premises for the use of the sanitary sewer system, Tenant
shall pay the share thereof equitably apportionable to the
Premises. Tenant shall also pay for any sprinkler standby
service charge equitably apportionable to the Premises. If the
Premises are not separately metered, Tenant shall pay to
Landlord, as billed and as additional Rent, its share of water
and/or sewer bills. In case any such water and sewer charges are
not paid by Tenant at the time when the same are payable, if to
municipal officials, Landlord may nevertheless pay the same to
such officials and charge Tenant the cost thereof, which charge
shall become payable on the first day of the following month as
Additional Rent.
8. Tenant's Use of Premises and Miscellaneous Covenants.
During the Term of this Lease Tenant shall use the Premises
solely for the purposes listed in the Basic Data. Tenant agrees
that it will not use, or permit or suffer the use of, the
Premises or any part thereof for any other business or purpose.
Tenant shall use and occupy the Premises in a careful, safe and
proper manner and shall keep the Premises in a clean and safe
condition in accordance with all applicable laws, ordinances and
government regulations. Tenant agrees that it will not do or
suffer to be done, or keep or suffer to be kept, anything in,
upon or about the Premises which will contravene Landlord's
policies insuring against loss or damage by fire or other
hazards, or which will prevent Landlord from procuring such
policies from companies acceptable to Landlord.
During the Term of this Lease, Tenant further covenants and
agrees as follows:
(a) Not to use the Premises for any use involving the
emission of objectionable odors, fumes, noise or vibration.
Tenant covenants and agrees that it shall advise Landlord in
writing of any materials or substances it deals with in any way
on the Premises that may be deemed to be hazardous or toxic prior
to such substances or materials being brought upon the Premises
or Lot. In any event, Tenant shall strictly comply with all
state, federal and municipal laws, regulations, guidelines and
ordinances concerning the use, storage, handling and disposition
of any substance or material that is or may be deemed to be toxic
or hazardous and Tenant agrees to indemnify Landlord against any
liability, including attorneys fees and costs, in connection
therewith. At Landlord's request, Tenant shall provide Landlord
with reasonable assurances that Tenant can and will comply with
the foregoing and, if Landlord so requests, Tenant shall obtain
insurance of such type and in such amount as Landlord may
reasonably specify, such policy to name Landlord as an insured
party and be obtained at Tenant's sole cost prior to such
substances or materials being brought upon the Premises or Lot.
Any such policy shall provide that it may not be cancelled or
amended without thirty (30) days prior notice to Landlord, and
shall be issued by a company or companies reasonably satisfactory
to Landlord. Failure of Tenant to provide Landlord with such
reasonable assurances or evidence of any reasonably requested
insurance in connection with the bringing of such materials or
substances upon the Premises or Lot shall be reasonable cause for
Landlord to prohibit such substances or materials from being
brought upon the Premises or Lot or, at Landlord's election, a
default under this Lease.
Notwithstanding anything contained herein to the contrary,
LESSEE shall strictly comply with all state, federal and
municipal laws, regulations, guidelines and ordinances
concerning the use, storage, handling and disposition of any
substance or material that is or may be deemed to be toxic
or hazardous and Tenant agrees to indemnify and hold
Landlord harmless against any liability, including attorneys
fees and costs, in connection therewith.
(b) Not to permit the use of the Premises for trucking of a
character or volume greater than that customarily employed
by other occupants of the Building or Lot or any use
permitted under this Lease for which trucking of such
character and volume is customary.
(c) Not to place on the Premises or Building any placard or
sign of advertising that the Premises or any part thereof
may be sublet, nor to place any other sign or placard on the
Premises or Building which is visible from the exterior of
the Premises or Building without the written consent of
Landlord, except as delineated in Section 41 of this Lease,
namely signage.
(d) Not to injure, overload, deface or permit to be
injured, overloaded, or defaced, the Premises or
Building, and not to permit any holes to be made in the
exterior of the building; and not to make, allow or suffer
any waste or any unlawful, improper or offensive use of the
Premises that shall be injurious to any person or property
or invalidate any insurance on the Premises, Building or Lot
or increase the premium thereof.
Notwithstanding anything contained herein to the contrary,
it is hereby understood and agreed that any/all roof
penetration to the Premises and/or Building shall be
performed only by an authorized Carlisle contractor approved
by Landlord.
(e) To conform to and comply with all state and municipal
laws and with all requirements of any public body or officers
having jurisdiction of the Premises and with the requirements or
regulations of any Board of Fire Underwriters or insurance
company insuring the Premises at the time with respect to the
care, maintenance, use and nonstructural alteration of the
Premises, all at Tenant's sole expense.
9. Repairs to and Maintenance of Premises by Tenant. Tenant
shall keep the Premises, including without limitation, both the
inside and outside of all doors and windows therein, in the same
order and repair as they are in on the Commencement Date,
reasonable wear and tear and damage by fire or other casualty
normally insured under a so-called "extended coverage
endorsement" only excepted; and to keep all fixtures and
equipment on the Premises including, without limitation, all
heating, plumbing, electrical, air-conditioning, ventilation and
mechanical fixtures and equipment serving only the Premises in
the same order and repair as they are in on the Commencement
Date, damage by fire or other casualty normally insured under an
"extended coverage endorsement" only excepted. Tenant shall, at
it sole cost and expense, during the entire Term of this Lease,
maintain in force a service contract providing for the repair and
annual service and maintenance of all heating, ventilating and
air conditioning equipment serving the Premises, such contract to
be with a party reasonably acceptable to Landlord or, if Landlord
should so elect, with a party designated by Landlord. Tenant
shall make all repairs and replacements and do all other work
necessary for the foregoing purposes. Landlord represents that
as of the Commencement Date of this Lease, the heating, plumbing,
electrical, air-conditioning, ventilation and mechanical fixtures
and equipment serving the Premises shall be in good working order
and of sufficient capacity for Tenant's Use as set forth herein.
In addition, if any repairs or maintenance are required to the
machinery and components of the HVAC system located in the
Premises during the twelve month period commencing with the
Commencement Date of this Lease, and Tenant so notifies Landlord
in writing thereof within said twelve month period, then,
notwithstanding anything contained herein to the contrary,
Landlord shall, at its sole cost and expense, make such repairs
and maintenance. Following the aforementioned twelve month
period, Landlord shall have no liability or responsibility with
respect to the repair, maintenance or operation of the HVAC
system within the Premises. It is further agreed that the
exception of reasonable wear and tear shall not apply so as to
permit Tenant to keep the Premises in anything less than
suitable, tenantlike, efficient and usable condition considering
the nature of the Premises and the use reasonably made thereof,
or in less than good and tenantlike repair, and that except in
case of fire or other casualty normally insured under an
"extended coverage endorsement" there is no exception to the rule
that all glass must be kept good and whole by Tenant. Tenant
shall also be responsible for the cost of all repairs to the
Building (including, without limitation, the structure and roof
thereon and common areas therein) and the Lot if the same are
occasioned by Tenant's or its employees', agents' or invitees'
improper or negligent use thereof.
Notwithstanding the foregoing, in the event a major repair
(for the purpose of this paragraph, "major repair" shall
mean a repair which costs in excess of $10,000.00 Dollars)
occurs during the last year of the term hereof and provided
the same is not caused by the Tenant's negligence, Landlord
shall perform the work and bill Tenant its pro rata based on
the remaining balance of the Lease.
10. Subletting and Assignment.
(a) Tenant covenants and agrees not to assign, sell,
mortgage, pledge or in any manner transfer this Lease
or any interest therein or sublet the Premises or any part
thereof, or grant any concession or license or otherwise
permit occupancy of all or any part thereof by another
person or entity without the prior written consent of
Landlord, which consent shall not be unreasonably withheld
provided all the provisions of this Paragraph 10 are
complied with and subject to Landlord's right to terminate
this Lease as set forth in this Paragraph 10. Any such
consent by Landlord shall be held to apply only to the
specific transaction thereby authorized. Such consent shall
not be construed as a waiver of the obligation of Tenant to
obtain from Landlord consent to any other or subsequent
assignment or subletting period. The collection of rent by
Landlord from any assignee, subtenant or other occupant
shall not be deemed an acceptance of the assignee, subtenant
or occupant as tenant or release of Tenant from its
obligation under this Lease.
(b) Notwithstanding the provisions of Paragraph 10(a),
above, any proposed assignee or sublessee submitted to the
Landlord for approval must have the same or greater financial
strength as Tenant and if such is not the case, Landlord's
withholding of consent shall be reasonable. If Tenant shall
request permission to assign this Lease or sublet the Premises or
any part thereof Tenant shall, together with such request for
consent thereto, inform Landlord of the rental and any other
amounts to be paid by such assignee or subtenant in connection
with such subletting or assignment regardless of the nomenclature
such payment may take, the term of any subletting, and any
financial information required or requested by Landlord to make
the determination required by the first sentence of this
Paragraph 10(b). Landlord shall have the right to terminate this
Lease in lieu of consenting or reasonably withholding its consent
to the proposed subletting or assignment, provided that Landlord
shall exercise such right within forty-five (45) days of its
receipt of Tenant's request for such consent and provided,
further, that Tenant shall have the right to withdraw its request
for such consent within fifteen (15) days after its receipt of
such notice from Landlord, in which event such notice of
termination shall become null and void. If this Lease shall be
terminated pursuant to the provisions of the immediately
preceding sentence, such termination shall become effective upon
the last day of the calendar month next following Landlord's
giving said notice of termination.
(c) If Landlord consents in writing to an assignment or
subletting, such consent shall be deemed conditioned upon
Tenant's compliance with the following provisions and the failure
to so comply shall be deemed to give Landlord reasonable cause
for withholding or withdrawing its consent:
(1) The assignment or subletting must be,
respectively, of all Tenant's leasehold interest
or of the entire Premises and, in the case of an
assignment, shall also transfer to the assignee all of
Tenant's rights in and interests under this Lease,
including but without limitation, the Security Deposit
hereunder.
(2) At the time of such assignment or subletting, this
Lease must be in full force and effect without any
breach or default hereunder on the part of Tenant.
(3) The assignee or sublessee shall assume, by written
recordable instrument, in form and content satisfactory
to Landlord, the due performance of all Tenant's
obligations under this Lease, including any accrued
obligations at the time of the assignment or
subletting.
(4) A copy of the assignment or sublease and the
original assumption agreement (both in form and content
satisfactory to Landlord) fully executed and acknowledged by the
assignee or sublessee, together with a certified copy of a
properly executed corporate resolution authorizing such
assumption agreement, shall be received by Landlord within ten
(10) days from the effective date of such assignment or
subletting.
(5) Such assignment or subletting shall be upon and
subject to all the provisions, terms, covenants and conditions of
this Lease including but without limitation the use permitted
hereby and Tenant (and any assignee(s), subtenant(s) and
guarantor(s) of this Lease) shall continue to be and remain
primarily and unconditionally liable hereunder.
(6) Tenant shall reimburse Landlord for Landlord's
attorneys' fees for examination of and/or preparation of any
documents in connection with such assignment or subletting.
(7) Any rent, sum or other consideration to be paid or
given in connection with such sublease or assignment,
either initially or over time, in excess of the Annual
Rent and/or Additional Rent and/or other charges to be
paid under this Lease shall be paid directly to
Landlord as if such amount were originally called for
by the terms of this Lease as Additional Rent and
Tenant shall be liable to Landlord for all such
amounts.
(d) Subject to the enumerated conditions of the preceding
Paragraph 10(c), Landlord hereby consents to the assignment or
subletting of the entire Premises to a corporation which is a
wholly owned subsidiary of Tenant, to its parent, affiliate, or
controlling corporation or corporations, or to any successor by
consolidation, merger or sale of all or substantially all of its
assets. For the purposes hereof, an "affiliate" shall be an
entity (i) at least fifty percent (50%) of which is owned
directly by Tenant or the entity owning or controlling Tenant or
(ii) Tenant or such other entity owning or controlling Tenant
having sufficient direct voting ownership to effectively control
the management thereof. Notwithstanding any such assignment or
subletting as provided in this Paragraph 10(d), such assignment
or subletting shall be upon and subject to all the provisions,
terms, covenants and conditions of this Lease and Tenant (and any
assignee(s), subtenant(s) and guarantor(s) of this Lease) shall
continue to be and remain liable hereunder.
(e) In the event that Tenant hereunder is a corporation
(other than one whose shares are regularly and publicly traded on
a recognized stock exchange in the United States), Tenant
represents that the ownership and power to vote its entire
outstanding capital stock belongs to and is vested in the officer
or officers executing this Lease or members of his or their
immediate family. If there shall occur any change in the
ownership of and/or power to vote the majority of the outstanding
capital stock of Tenant, whether such change of ownership is by
sale, assignment, bequest, inheritance, operation of law or
otherwise, without the prior written consent of Landlord, which
consent shall not be unreasonably withheld, then Landlord shall
have the option to terminate this lease upon thirty (30) days
notice to Tenant.
11. Alterations. Tenant shall not modify the leasehold
improvements or make any alterations to the Premises
without first obtaining Landlord's prior written approval of
such modifications and alterations; provided, however,
Landlord shall not unreasonably withhold its consent to
nonstructural alterations of the Premises; provided further
that Landlord's consent shall not be required for non-
structural alterations costing less than FIVE THOUSAND AND
00/100 ($5,000.00) Dollars each.
12. Trash Removal. Tenant shall be responsible for the removal
of its own trash, rubbish, garbage and refuse removal, at
its sole cost and expense. Tenant shall not permit the
accumulation of rubbish, trash, garbage and other refuse in
and around the Premises. No rubbish, trash, garbage or
other refuse shall be burned by Tenant in the Premises or
elsewhere in the Building or Lot and all of the same shall
be kept in suitable containers in the interior of the
Premises (or in locations outside the Premises as Landlord
may permit by notice in writing) until the same is picked up
from the Premises and the Building and/or Lot. The removal
agency selected by Tenant shall be subject to Landlord's
reasonable approval. In the event Tenant fails to remove
any accumulation of rubbish within twenty-four (24) hours
after notice from Landlord to remove the same, Landlord
shall have the right (but not the obligation) to remove the
same, in which event the cost thereof shall be paid by
Tenant as Additional Rent immediately upon demand.
13. Mechanic's Liens. Tenant will not permit to be created or
to remain undischarged any lien, encumbrance or charge arising
out of any work of any contractor, mechanic, laborer or
materialman or any mortgage, conditional sale, security agreement
or chattel mortgage, or otherwise which might be or become a lien
or encumbrance or charge upon the Premises or any part thereof or
the income therefrom, and Tenant will not suffer any other matter
or thing whereby the estate, rights and interest of Landlord in
the Premises or any part thereof might be impaired. If any lien
on account of an alleged debt of Tenant or any notice of contract
by a party engaged by Tenant or Tenant's contractor to work on
the Premises shall be filed against the Premises, Building or
Lot, or any part thereof, within ten (10) days after notice of
the filing thereof Tenant shall cause the same to be discharged
of record by payment or bond. If Tenant shall fail to cause such
lien to be discharged within the period aforesaid then, in
addition to any other right or remedy, Landlord may, but shall
not be obligated to, discharge the same either by paying the
amounts claimed to be due or by procuring the discharge of such
lien by deposit or by bonding proceedings, and in any such event
Landlord shall be entitled to compel the prosecution of an action
for the foreclosure of such lien by the lienor or to pay the
amount of the judgment in favor of the lienor with interest,
costs and allowances. Any amount so paid by Landlord and all
costs and expenses, including without limitation reasonable
attorneys fees, incurred by Landlord in connection therewith,
together with interest thereon at the rate specified in Paragraph
19(d) from the respective dates of Landlord's making of the
payment or incurring of the cost and expense, shall constitute
Additional Rent payable by Tenant under this Lease and shall be
paid by Tenant to Landlord immediately upon demand.
14. Access to Premises. Landlord shall have access to the
Premises at all reasonable time, with reasonable notice to allow
for an escort by Abiomed personel and minimal business
distruption, except in cases of emergency at any time, for the
purpose of examining the same or making such repairs,
alterations, additions or improvements to the Premises, or the
Building of which the Premises are a part, that Landlord may deem
necessary or which Tenant has failed to do (but nothing in this
Paragraph shall obligate Landlord to make any such repairs,
alterations, additions or improvements) and also for the purpose
of exhibiting the Premises and putting up notices "To Rent," or
"For Sale", provided Tenant does not exercise its option to renew
as defined in Paragraph 3A herein, which notices shall not be
removed, obliterated or hidden by Tenant. No forcible entry
shall be made by Landlord unless such entry shall be reasonably
necessary to prevent injury, loss or damage to persons or
property, and Landlord shall repair any damage to property
occasioned thereby. Landlord shall repair any damage to property
of Tenant or anyone claiming under Tenant caused by or resulting
from Landlord's making any such repairs, alterations, additions
or improvements except only such damage as shall result from the
entry to the Premises and/or the making of such repairs,
alterations, additions or improvements which Landlord shall make
as a result of an emergency or the default, negligence, fault or
willful misconduct of Tenant or anyone claiming under or through
Tenant. No action of Landlord pursuant to this Paragraph shall
be deemed an eviction or disturbance of Tenant nor shall Tenant
be allowed any abatement of rent or damages for any injury or
inconvenience occasioned thereby.
15. Removal of Improvements. Except as otherwise hereinafter
provided, all trade fixtures, furniture, furnishings and signs
installed in the Premises by Tenant and paid for by it shall
remain the property of Tenant and shall be removed by Tenant upon
the expiration of the Term of this Lease or its earlier
termination, provided (a) that any of such items as are affixed
to the Premises and require severance may be removed only if
Tenant shall repair any damage caused by such removal, (b) that
Tenant shall have fully performed all of the covenants and
agreements to be performed by it under the provisions of this
Lease, and (c) that Tenant shall comply with the last sentence of
this Paragraph. If the Tenant fails to remove such items from
the Premises prior to the expiration of this Lease or earlier
termination hereof, all such trade fixtures, furniture,
furnishings and signs shall become the property of the Landlord.
All lighting fixtures, heating and cooling equipment and all
other installations, alterations, additions and improvements to
the Premises other than specialty HVAC lighting and other
fixtures comprising the clean rooms, shall be and remain the
property of Landlord on the ending of the Term hereof or any
earlier termination of this Lease and shall not be removed from
the Premises.
16. Tenant's Insurance Obligation. Tenant shall carry public
liability insurance in a company or companies licensed to do
business in the state in which the Premises are located and
reasonably approved by Landlord. Said insurance shall be in
minimum amounts reasonably required by Landlord from time to time
by notice to Tenant and shall name Landlord as an additional
insured, as its interests may appear, and Tenant shall provide
Landlord with evidence, when requested, that such insurance is in
full force and effect. Tenant shall carry property damage
insurance for all of its equipment and for all leasehold
improvements above the building standard which are made by
Landlord or Tenant in and to the Premises, which policies shall
name Landlord as an additional insured. If required by Landlord,
receipts evidencing payment for said insurance shall be delivered
to Landlord at least annually by Tenant and each policy shall
contain an endorsement that will prohibit its cancellation or
amendment prior to the expiration of thirty (30) days after
notice of such proposed cancellation or amendment to Landlord.
Tenant shall carry insurance in the initial amounts listed in the
Basic Data and shall provide Landlord with certificates of such
Tenant Insurance Requirements on or prior to the Commencement
Date.
17. Repairs by Landlord. Landlord agrees to make all necessary
repairs or alterations to the foundation, roof and
structural parts of the exterior walls of the Premises.
Notwithstanding the foregoing, if any of said repairs or
alterations shall be made necessary by reason of repairs,
installations, alterations, additions or improvements made
by Tenant or anyone claiming under or through Tenant, by
reason of the default, negligence, fault, or willful
misconduct of such party, or by reason of a default in the
performance or observance of any agreements, conditions or
other provisions on the part of Tenant to be performed or
observed, or by reason of any special use to which the
Premises may be put, Tenant shall be liable for the cost of
all such repairs or alterations as may be necessary.
Landlord shall not be deemed to have committed a breach of
any obligation to make repairs or alterations or perform any
other act unless (a) it shall have made such repairs or
alterations or performed such other act negligently, or (b)
it shall have received notice from Tenant designating the
particular repairs or alterations needed or the other act of
which there has been failure of performance and Landlord
shall have failed to make such repairs or alterations or
performed such other act within a reasonable time after the
receipt of such notice; and in the latter event Landlord's
liability shall be limited to the cost of making such
repairs or alterations or performing such other act. As
used in this Lease, the expression "exterior walls of the
Premises" does not include glass, windows, doors or door
frames, or window sashes or frames. Landlord shall make all
necessary repairs to the common areas and shall maintain
such common areas (except sidewalks abutting the Premises)
reasonably clear of litter and shall perform snow handling
to the extent required for business operations of the
Building. The provisions of this Paragraph shall not apply
in the case of damage or destruction by fire or other
casualty or by eminent domain, in which events the
obligations of Landlord shall be controlled by Paragraph 18
hereof.
In the event the foregoing repairs or alterations cannot
reasonably be completed within a thirty (30) day period,
then Landlord shall have such additional time as is
reasonably necessary to complete the same, provided Landlord
has commenced the making of such repairs or alterations
within said thirty (30) days and thereafter pursued the
completion thereof with due diligence. In the event
Landlord fails or neglects to make the repairs to the
Premises which Landlord is required to make in accordance
with the terms of this Lease within thirty (30) days after
receipt of written notice from Tenant of the necessity
thereof, or within twenty-four (24) hours in the event of an
emergency, then Tenant may, but shall not be obligated to,
make such repairs and Landlord shall reimburse Tenant for
the actual cost thereof within thirty (30) days after
receipt of a bill thereof and copies of applicable invoices.
In the event Landlord fails to reimburse Tenant as
aforesaid, Tenant may, at Tenant's option, deduct said cost
from the rent payments next due to Landlord. In the event
such repairs cannot reasonably be completed within thirty
(30) days after receipt of written notice from Tenant of the
necessity therefor, and Landlord commences the making of
such repairs within said thirty (30) day period and
thereafter pursues the completion thereof with reasonable
diligence, Landlord shall have such additional time as is
reasonably necessary to complete the same before Tenant has
the right to exercise any remedies set forth in this Lease.
18. Damage or Destruction by Eminent Domain, Fire or Casualty.
(a) In the event that the Premises and/or Building and/or
Lot, or any material part thereof, shall be taken by any public
authority or for any public use, or shall be destroyed or damaged
by fire or casualty, or by the action of any public authority,
then this Lease may be terminated at the election of Landlord.
Such election shall be made by the giving of written notice by
Landlord to Tenant within thirty (30) days after the right of
election accrues. If by such taking Tenant is deprived of the
use of more than thirty percent (30%) of the Square Footage of
the Premises, or if by such fire or other casualty more than
fifty percent (50%) of the Square Footage of the Premises shall
be rendered untenable, and if Landlord does not within a
reasonable time after notice from Tenant commence and diligently
pursue to rebuild or repair, Tenant may at its option terminate
this Lease by notice in writing to Landlord within thirty (30)
days after the date of such damage or destruction, or within
thirty (30) days after it has received notice of such taking, as
the case may be. If either Landlord or Tenant exercises such
option, this Lease shall terminate on the date designated in its
notice of termination, which shall be not less than fifteen (15)
nor more than thirty (30) days after the date of such notice.
(b) If this Lease is not terminated pursuant to the
provisions of Paragraph 18(a) above, this Lease shall
continue in full force and effect and a just proportion of
the Annual Rent shall be suspended or abated until the
Premises shall be put by Landlord in proper condition for
use, which Landlord covenants to do with reasonable
diligence and to the extent permitted by the net proceeds of
insurance recovered or damages awarded for such destruction
or taking, and subject to zoning and building laws then in
existence. "Net proceeds of insurance recovered or damaged
awarded" refers to the gross amount of such insurance or
award less the reasonable expenses of Landlord in connection
with the collection of same, including without limitations,
reasonable fees and expenses for legal and appraisal
services. In the case of a taking which permanently reduces
the Square Footage of the Premises, the rent shall be abated
for the remainder of the Term in proportion to the amount by
which the Square Footage has been reduced.
(c) Irrespective of the form in which recovery may be had
by law, all rights to damages or compensation shall belong to
Landlord in all cases, except for damages to Tenant's fixtures,
property or equipment, and for damages, if any, separately
awarded for relocation expenses and business interruption,
provided that none of the same shall reduce the damages or
compensation which Landlord would otherwise recover. Tenant
hereby grants to Landlord all of Tenant's rights to such damages
and awards and covenants to deliver such further assignments
thereof as Landlord may from time to time request.
19. Tenant's Default.
(a) Events of Default. The following shall be "Events of
Default" under this Lease:
(i) If Tenant shall fail to pay any monthly
installment of Annual Rent or Additional Rent when due, and such
default shall continue for ten (10) days after written notice from
Landlord; provided that no such notice shall be required if Tenant has
received a similar notice within three hundred sixty-five (365)
days prior to such violation or failure;
(ii) If Tenant shall fail to timely make any other
payment required under this Lease and such default shall continue
for ten (10) days after written notice from Landlord; provided
that no such notice shall be required if Tenant has received a
similar notice within three hundred sixty-five (365) days prior
to such violation or failure;
(iii) If Tenant shall violate or fail to perform any
of the other terms, conditions, covenants or agreements herein
made by Tenant, if such violation or failure continues for a
period of thirty (30) days after Landlord's written notice
thereof to Tenant; provided that no such notice shall be required
if Tenant has received a similar notice within three hundred
sixty-five (365) days prior to such violation or failure;
(iv) Tenant's becoming insolvent, as that term is
defined in Title 11 of the United States Code, entitled
Bankruptcy, 11 U.S.C. Section 101 et. seq. (the "Bankruptcy
Code"), or under the insolvency laws of any State, District,
Commonwealth or Territory of the United States (the "Insolvency
Laws");
(v) the appointment of a receiver or custodian for all
or a substantial portion of Tenant's property or
assets, or the institution of a foreclosure action upon
all or a substantial portion of Tenant's real or
personal property;
(vi) the filing of a voluntary petition under the
provisions of the Bankruptcy Code or Insolvency Laws;
(vii) the filing of an involuntary petition against
Tenant as the subject debtor under the Bankruptcy Code or
Insolvency Laws, which is either not dismissed within forty-five
(45) days of filing, or results in the issuance of an order for
relief against the debtor, whichever is earlier;
(viii) Tenant's making or consenting to an assignment
for the benefit of creditors or a common law
composition of creditors; or
(ix) Tenant's interest in this Lease being taken on
execution in any action against the Tenant.
(b) Landlord's Remedies. Should an Event of Default occur
under this Lease, Landlord may pursue any or all of the following
remedies:
(i) Termination of Lease. Landlord may terminate this
Lease by giving written notice of such termination to
Tenant, or by reentry, whereupon the mailing of such
notice of termination addressed to Tenant, or in the
case of reentry, upon such reentry, with or without
notice or demand and with or without process of law
(forcibly if necessary), this Lease shall automatically
cease and terminate and Tenant shall be immediately
obligated to quit the Premises. Termination by entry
or notice as provided herein shall be effective and
complete upon entry or the mailing of notice,
respectively, and shall require no further action on
the part of Landlord including, without limitation,
resort to legal process under applicable law. Any
other notice to quit or notice of Landlord's intention
to reenter the Premises is hereby expressly waived. If
Landlord elects to terminate this Lease, everything
contained in this Lease on the part of Landlord to be
done and performed shall cease without prejudice,
subject, however, to the right of Landlord to recover
from Tenant all Annual Rent and Additional Rent and any
other sums accrued up to the time of termination or
recovery of possession by Landlord, whichever is later.
(ii) Suit for Possession. Landlord may proceed to
recover possession of the Premises under and by virtue of the
provisions of the laws of the state in which the Premises are
located or by such other proceedings, including reentry and
possession, as may be applicable.
(iii) Reletting of Premises. Should this Lease be
terminated before the expiration of the Term of this Lease by
reason of Tenant's default as hereinabove provided, or if Tenant
shall abandon or vacate the Premises before the expiration or
termination of the Term of this Lease without having paid the
full rental for the remainder of such Term, Landlord shall have
the option, but not the obligation, to relet the Premises for
such rent and upon such terms as are not unreasonable under the
circumstances and, if the full Annual Rent and Additional Rent
reserved under this Lease (and any of the costs, expenses or
damages indicated below) shall not be realized by Landlord,
Tenant shall be liable for all damages sustained by Landlord,
including, without limitation, deficiency in rent, reasonable
attorneys' fees, brokerage fees and expenses of placing the
Premises in first-class rentable condition including without
limitation any alterations and improvements. Landlord, in
putting the Premises in good order or preparing the same for
rerental may, at Landlord's option, make such alterations,
repairs or replacements in the Premises as Landlord, in its sole
judgment, considers advisable and necessary for the purpose of
reletting the Premises, and the making of such alterations,
repairs, or replacements shall not operate or be construed to
release Tenant from liability hereunder as aforesaid. Landlord
shall in no event be liable in any way whatsoever for failure to
relet the Premises, or in the event that the Premises are relet,
for failure to collect the rent under such reletting, and in no
event shall Tenant be entitled to receive the excess, if any, of
such net rent collected over the sums payable by Tenant to
Landlord hereunder.
(iv) Acceleration of Payment. If Tenant shall fail to
pay any monthly installment of Annual Rent and/or
Additional Rent pursuant to the terms of this Lease,
within ten (10) days of the date when each such payment
is due, for three (3) consecutive months, or three (3)
times in any period of twelve (12) consecutive months,
then Landlord may, by giving written notice to Tenant,
exercise any of the following options: (A) declare the
entire rent reserved under this Lease to be due and
payable within ten (10) days of such notice; (B)
declare the rent reserved under this Lease for the next
six (6) months (or at Landlord's option for a lesser
period) to be due and payable within ten (10) days of
such notice; or (C) require an additional security
deposit to be paid to Landlord within ten (10) days of
such notice in an amount not to exceed six (6) months
rent. Landlord may invoke any of the options provided
for herein at any time during which an Event of Default
remains uncured.
(v) Monetary Damages. Any damage or loss of rent
sustained by Landlord may be recovered by Landlord, at Landlord's
option, at the time of the reletting, or in separate actions,
from time to time, as said damage shall have been made more
easily ascertainable by successive relettings, or at Landlord's
option in a single proceeding deferred until the expiration of
the Term of this Lease (in which event Tenant hereby agrees that
the cause of action shall not be deemed to have accrued until the
date of expiration of said Term) or in a single proceeding prior
to either the time or reletting or the expiration of the Term of
this Lease. In addition, should it be necessary for Landlord to
employ legal counsel to enforce any of the provisions herein
contained, Tenant agrees to pay all attorney's fees and court
costs reasonably incurred.
(vi) Anticipatory Breach; Cumulative Remedies.
Nothing contained herein shall prevent the enforcement of any
claim Landlord may have against Tenant for anticipatory breach
of the unexpired Term of this Lease. In the event of a breach
or anticipatory breach by Tenant of any of the covenants or
provisions hereof,Landlord shall have the right of injunction
and theright to invoke any remedy allowed at law or in equity
as if reentry, summary proceedings and other remedies
were not provided for herein. Mention in this Lease of
any particular remedy shall not preclude Landlord from
any other remedy, in law or in equity, whether or not
mentioned herein. Landlord's election to pursue one or
more remedies, whether as set forth herein or
otherwise, shall not bar Landlord from seeking any
other or additional remedies at any time and in no
event shall Landlord ever be deemed to have elected one
or more remedies to the exclusion of any other remedy
or remedies. Any and all rights and remedies that
Landlord may have under this Lease, and at law and in
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 insofar as permitted by law. Tenant hereby
expressly waives any and all rights of redemption
granted by or under any present or future laws in the
event of Tenant being evicted or dispossessed for any
cause, or in the event of Landlord obtaining possession
of the Premises, by reason of the violation by Tenant
of any of the covenants and conditions of this Lease,
or otherwise.
(c) Waiver. If, under the provisions hereof, Landlord
shall institute proceedings against Tenant and a compromise or
settlement thereof shall be made, the same shall not constitute a
waiver of any other covenant, condition or agreement herein
contained, nor of any of Landlord's rights hereunder. No waiver
by Landlord of any breach of any covenant, condition or agreement
herein contained shall operate as a waiver of such covenant,
condition, or agreement itself, or of any subsequent breach
thereof. No payment by Tenant or receipt by Landlord of a lesser
amount than the monthly installments of rent herein stipulated
shall be deemed to be other than on account of the earliest
stipulated rent, nor shall any endorsement or statement on any
check or letter accompanying a check for payment of Annual Rent,
Additional Rent or any other sum 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 Annual Rent, Additional Rent or any other sum or so pursue
any other remedy provided in this Lease. No reentry by Landlord,
and no acceptance by Landlord of keys from Tenant, shall be
considered an acceptance of a surrender of the Lease or Premises.
(d) Right of Landlord to Cure Tenant's Default. If Tenant
defaults in the making of any payment or in the doing of any
act herein required to be made or done by Tenant, then
Landlord may, but shall not be required to, make such
payment or do such act, and charge the amount of the expense
thereof, if made or done by Landlord, with interest thereon
at the rate per annum which is four percent (4%) greater
than the "base lending rate" then in effect at The First
National Bank of Boston, Boston, Massachusetts, or the
highest rate permitted by law, whichever may be less; with
it being the express intent of the parties that nothing
herein contained shall be construed or implemented in such a
manner as to allow Landlord to charge or receive interest in
excess of the maximum legal rate then allowed by law. Such
payment and interest shall constitute Additional Rent
hereunder due and payable with the next monthly installment
of Annual Rent; but the making of such payment or the taking
of such action by Landlord shall not operate to cure such
default or to stop Landlord from the pursuit of any remedy
to which Landlord would otherwise be entitled.
(e) Late Payment. If Tenant fails to pay any installment
of Annual Rent and/or Additional Rent on or before the first
(1st) day of the calendar month when such installment becomes due
and payable, Tenant shall pay to Landlord a late charge of five
percent (5%) of the amount of such installment, and, in addition,
such unpaid installment shall bear interest at the rate per annum
which is four percent (4%) greater than the "base lending rate"
then in effect at The First National Bank of Boston, Boston,
Massachusetts, or the highest rate permitted by law, whichever
may be less; with it being the express intent of the parties that
nothing herein contained shall be construed or implemented in
such manner as to allow Landlord to charge or receive interest in
excess of the maximum legal rate then allowed by law. Such late
charge and interest shall constitute Additional Rent hereunder
due and payable with the next monthly installment of Annual Rent
due, or if payments have been accelerated pursuant to this
Paragraph 19, due and payable immediately.
(f) Lien on Personal Property. Landlord shall have a lien
upon all the personal property of Tenant moved into the
Premises, as and for security for the Annual Rent,
Additional Rent and other obligations of Tenant herein
provided. In order to perfect and enforce said lien,
Landlord may, at any time after default by Tenant in the
payment of Annual Rent, Additional Rent or default of other
obligations to be performed or complied with by Tenant under
this Lease, seize and take possession of any and all
personal property belonging to Tenant that may be found in
and upon the Premises. If Tenant fails to redeem the
property so seized, by payment of whatever sum may be due
Landlord under and by virtue of the provisions of this
Lease, then and in that event, Landlord shall have the
right, after twenty (20) days written notice to Tenant of
its intention to do so, to sell such personal property so
seized at public or private sale and upon such terms and
conditions as to Landlord may appear advantageous, and after
the payment of all proper charges incident to such sale,
apply the proceeds thereof to the payment of any balance due
to Landlord on account of Annual Rent, Additional Rent or
other obligations of Tenant pursuant to this Lease. In the
event there shall then remain in the hands of Landlord any
balance realized from the sale of said personal property as
aforesaid, the same shall be held by Landlord as additional
Security Deposit. The exercise of the foregoing remedy by
Landlord shall not relieve or discharge Tenant from any
deficiency owed to Landlord which Landlord has the right to
enforce pursuant to any other provisions of this Lease.
20. Liability of Landlord; Indemnification.
(a) Landlord shall not be liable to Tenant, its employees,
agents, contractors, business invitees, licensees,
customers, clients, family members or guests for any damage,
compensation or claim arising from (i) the necessity of
repairing any portion of the Premises, Building or Lot, (ii)
the interruption in the use of the Premises, (iii) accident
or damage to persons or property resulting from the use or
operation (by Landlord, Tenant, or any other person or
persons whatsoever) of the Premises or of any elevators or
heating, cooling, electrical or plumbing equipment or
apparatus in the Premises or Building, (iv) the termination
of this Lease by reason of the destruction of the Premises,
(v) any fire, robbery, theft, mysterious disappearance
and/or any other casualty, (vi) any leakage in any part or
portion of the Premises or the Building, or from water, rain
or snow that may leak into, or flow from, any part of the
Premises or the Building, or from drains, pipes or plumbing
work in the Building, or from any other cause whatsoever, or
(vii) for any personal injury arising from the use,
occupancy and condition of the Premises, unless such
personal injury is caused by the gross negligence of
Landlord, or a willful act or failure to act on the part of
Landlord. Tenant shall not be entitled to any abatement or
diminution of rent as a result of any of the foregoing
occurrences, nor shall the same release Tenant from its
obligations hereunder or constitute an eviction. Any goods,
property or personal effects of Tenant, its employees,
agents, contractors, business invitees, licensees,
customers, clients, family members or guests, stored or
placed in or about the Premises, Building or Lot shall be at
their risk, and the Landlord shall not in any manner be held
responsible therefor. The employees of the Landlord are
prohibited from receiving any packages or other articles
delivered to the Building by Tenant, and if any such
employee receives any such package or articles, such
employee shall be the agent of the Tenant for such purposes
and not of the Landlord. Tenant acknowledges that Landlord
will not carry insurance on Tenant's furniture, furnishings,
fixtures, equipment and/or improvements in or to the
Premises and Tenant shall have full responsibility therefor
and shall bear the full risk of loss thereto. It is
expressly understood and agreed that Tenant shall look to
its business interruption and property damage insurance
policies, and not to Landlord or its agents or employees,
for reimbursement for any damages or losses incurred as a
result of any of the foregoing occurrences, other than
clause (a)(vii) above, and that said policies shall contain
waiver of subrogation clauses.
(b) If Landlord shall fail to perform any covenant, term or
condition of this Lease upon Landlord's part to be performed
or be guilty of negligence with regard to any party claiming
by, under or through Tenant and, as a consequence of such
default or negligence, Tenant shall recover a money judgment
against Landlord, such judgment shall be satisfied only out
of the proceeds of sale received upon execution of such
judgment and levy thereof against the right, title and
interest of Landlord in the Premises, Building and Lot, and
neither Landlord nor any of the partners designated herein
as Landlord comprising any partnership designated herein as
Landlord or any trustees or beneficiaries designated herein
as Landlord shall be personally liable for any judgment
rendered against Landlord or any deficiency thereunder. It
is agreed that in no event shall Tenant have any right to
levy execution against any property of Landlord other than
its interest in the Premises, Building and Lot and the rents
or other income therefrom as hereinbefore expressly
provided. In the event of sale or other transfer of
Landlord's right, title and interest in the Premises,
Building and Lot, Landlord shall be released from all
liability and obligations hereunder. If all or any part of
Landlord's interest in this Lease shall be held by a trust,
no trustee, shareholder or beneficiary of such trust shall
be personally liable for any of the covenants or agreements,
expressed or implied, hereunder. IN NO EVENT SHALL
LANDLORD EVER BE PERSONALLY LIABLE TO
TENANT OR ANYONE CLAIMING BY, UNDER OR
THROUGH TENANT FOR CONSEQUENTIAL DAMAGES,
SUCH DAMAGES OR CLAIMS THEREFOR BEING
HEREBY EXPRESSLY WAIVED BY TENANT.
(c) Tenant hereby agrees to indemnify and hold Landlord
harmless from and against any cost, damage, claim, liability or
expense (including attorney's fees) incurred by or claimed
against Landlord, directly or indirectly, which is occasioned by
or results from any default hereunder or any willful or negligent
act or omission on the part of Tenant, its agents, employees,
contractors, invitees, licensees, customers, clients, family
members and guests, or as a result of or in any way arising from
Tenant's use and occupancy of the Premises, Building and/or Lot
or in any other manner which relates to the business of Tenant.
Any such cost, damage, claim, liability or expense incurred by
Landlord for which Tenant is obligated to reimburse Landlord
shall be deemed Additional Rent due and payable as Additional
Rent upon demand by Landlord. It is expressly understood and
agreed that Tenant's liability under this Lease extends to the
acts and omissions of any subtenant or assignee and any agent,
employee, contractor, invitee, licensee, customer, client, family
member and guest of any subtenant or assignee.
21. Lease Not to be Recorded. Tenant agrees that it will not
record this Lease. Both parties shall, upon the request of
either, execute and deliver a notice or short form of this Lease
in such form, if any, as may be permitted by applicable statute.
If this Lease is terminated before the Term expires, the parties
shall execute, deliver and record an instrument acknowledging
such fact and the actual date of termination of this Lease, and
Tenant hereby appoints Landlord its attorney-in-fact in its name
and on its behalf to execute and record such instrument, such
appointment being coupled with an interest and irrevocable.
22. Severability. It is agreed that if any provision of this
Lease shall be determined to be void by any court of competent
jurisdiction, then such determination shall not affect any other
provisions of this Lease, all of which other provisions shall
remain in full force and effect; and it is the intention of the
parties that if a provision of this Lease is capable of two
constructions, one of which would render the provision void and
the other of which would render the provision valid, then the
provision shall have the meaning which renders it valid.
23. Delays. In any case where either party hereto is required
to do any act, other than the payment of money including without
limitation Annual Rent and Additional Rent, and is delayed in so
doing by reason of or resulting from an Act of God, war, civil
commotion, fire or other casualty, labor difficulties, shortages
of labor, materials or equipment, government regulations or other
causes beyond such party's reasonable control, such period of
time shall not be counted in determining the time during which
such work or act shall be completed, whether such time shall be
designated by a fixed date, a fixed time or "a reasonable time".
In any case where work is to be paid for out of insurance
proceeds or condemnation awards, due allowance shall be made for
delays in the collection of such proceeds and awards.
24. Estoppel Certificates. Tenant and Landlord each agree from
time to time, upon not less than fifteen (15) days prior
written request, to execute, acknowledge and deliver to the
other a statement in writing certifying that this Lease is
unmodified and in full force and effect, or if modified,
stating the modifications; that the requested party has no
defenses, offsets or counterclaims against its obligations
under this Lease (including Tenant's obligation to pay
Annual Rent and Additional Rent) or, if there are any
defenses, offsets, or counterclaims, setting them forth in
reasonable detail; and setting forth the dates to which the
Annual Rent and Additional Rent and other charges have been
paid. Any such statement delivered pursuant to this
paragraph may be relied upon by any prospective purchaser or
mortgagee of the Premises, Building and/or Lot, or any
prospective assignee of any such mortgage, or any
prospective assignee of this Lease, or any other similarly
interested party.
25. Waiver of Subrogation. Tenant and Landlord each hereby
release the other to the extent of their respective insurance
coverage, from any and all liability for any loss or damage
caused by fire or any of the extended coverage casualties or any
other casualty insured against, even if such fire or other
casualty shall be brought about by the fault or negligence of
Tenant, Landlord or their agents. Tenant and Landlord agree that
their respective policies covering such loss or damage shall
contain a clause to the effect that this release shall not affect
said policies or the right of Tenant or Landlord, as the case may
be, to recover thereunder and otherwise acknowledging this mutual
waiver of subrogation.
26. Waiver. No waiver of any condition or legal right or remedy
shall be implied by the failure of Landlord to declare a
forfeiture, or any other reasons, and no waiver of any
condition or covenant shall be valid unless it be in writing
signed by Landlord. No waiver by Landlord in respect to one
tenant of the Building or Lot shall constitute a waiver in
favor of any other tenant, nor shall the waiver or a breach
of any condition or covenant be claimed or pleaded to excuse
a future breach of the same condition or covenant. The
mention in this Lease of any specific right or remedy shall
not preclude Landlord from exercising any other right or
from having any other remedy or from maintaining any action
to which it may be otherwise entitled either at law or in
equity; and for the purpose of any suit by Landlord brought
or based on this Lease, this Lease shall be construed to be
a divisible contract, to the end that successive actions may
be maintained as successive periodic sums shall mature under
this Lease. It is further agreed that failure to include in
any suit or action any sum or sums then matured shall not be
a bar to the maintenance of any suit or action for the
recovering of said sum or sums so omitted at a later time.
27. Surrender and Holding Over. Tenant shall deliver up and
surrender to Landlord possession of the Premises upon the
expiration of the Term of this Lease or its earlier termination
in any way, broom clean and in as good condition and repair as
the same shall be at the commencement of said Term (damage by
fire and other perils covered by standard fire and extended
coverage insurance and ordinary wear and tear, subject to
Paragraph 9 of this Lease, only excepted), and shall deliver the
keys at the office of Landlord or Landlord's agent. Should
Tenant or any party claiming under Tenant remain in possession of
the Premises, or any part thereof, after any termination of this
Lease, no tenancy or interest in the Premises shall result
therefrom but such holding over shall be an unlawful detainer and
all such parties shall be subject to immediate eviction and
removal, and Tenant shall upon demand pay to Landlord, as
liquidated damages, a sum equal to double the Annual Rent,
Additional Rent and any other sums to be paid as specified herein
for any period during which Tenant shall hold the Premises after
the stipulated Term of this Lease may be terminated or have
expired.
28. Lease Inures to Benefit of Successors and Assigns. Subject
to the provisions hereof, this Lease and all the terms,
covenants, provisions and conditions herein contained shall
inure to the benefit of and be binding upon their respective
successors and assigns including, without limitation, their
heirs, personal representative, debtor in possession,
trustee, custodian, receiver, or any similar functionary
serving in proceedings brought by or against Landlord or
Tenant (or their respective successors and assigns) under
the Bankruptcy Code (as now or hereafter in effect),
Insolvency Laws, or any similar laws relating to bankruptcy,
insolvency or the adjustment of debts, provided, however,
that no subletting or assignment by, from, through or under
Tenant in violation of the provisions hereof shall vest in
the subletees or assigns any right, title or interest
whatever.
29. Quiet Enjoyment. Landlord hereby covenants and agrees that
if Tenant shall perform all the covenants, agreements and
other provisions herein stipulated to be performed or
observed on Tenant's part, Tenant shall at all time during
the continuance hereof have the peaceable and quiet
enjoyment and possession of the Premises without any manner
of molestation or hindrance from Landlord or any person or
persons lawfully claiming under Landlord, subject, however,
to the terms of this Lease and any instruments having a
prior lien. The rights granted by this Paragraph are in
lieu of any other rights Tenant may have by statute or at
law.
30. No Partnership. Landlord does not, in any way or for any
purpose, become a partner of Tenant in the conduct of its
business, or otherwise, or joint venturer or a member of a joint
enterprise with Tenant.
31. Notices. Any notice or consent required to be given by or
on behalf of either party to the other shall be in writing and
shall be given by mailing such notice or consent by registered or
certified mail, return receipt requested, postage prepaid,
addressed, if to Landlord, at the address hereinabove specified,
and, if to Tenant, at the address hereinabove specified if prior
to the Commencement Date and thereafter to the Premises, or at
such other address as may be specified from time to time in
writing sent to the other party by like notice. Notices so given
shall be deemed to be given and effective at the time they are
deposited with the United States Postal Service.
32. Interpretation. Wherever either the word "Landlord" or
"Tenant" is used in this Lease, it shall be considered as meaning
the parties respectively, wherever the context permits or
requires, and when the singular and/or neuter pronouns are used
herein, the same shall be construed as including all persons and
corporations designated respectively as Landlord or Tenant in
this instrument wherever the context requires.
33. Paragraph Headings. The paragraph headings are inserted
only as a matter of convenience and for reference and in no way
define, limit or describe the scope or intent of this Lease nor
in any way affect this Lease.
34. Broker's Commissions. Tenant warrants that there are no
claims for broker's commission or finder's fees in connection
with its execution of this Lease or the tenancy hereby created
and agrees to indemnify and save Landlord harmless from any
liability that may arise from such claim, including reasonable
attorneys fees.
35. Interruption of Services. With respect to any services
furnished by Landlord to Tenant, Landlord shall in no event be
liable for failure to furnish the same when prevented from doing
so by strike, lockout, breakdown, accident, order or regulation
of or by any governmental authority, or failure of supply, or
inability by the exercise of reasonable diligence to obtain
supplies, parts or employees necessary to furnish such services,
or because of war or other emergency, or for any cause beyond
Landlord's reasonable control, or for any cause due to any act or
neglect of Tenant or its servants, agents, employees, licensees
or any person claiming by, through or under Tenant, and in no
event shall Landlord ever be liable to Tenant for any indirect or
consequential damages.
36. Subordination. Upon the written request of Landlord, Tenant
shall enter into a recordable agreement with the holder of
any present or future mortgage of the Premises, Building or
Lot which shall provide that (i) this Lease shall be
subordinated to such mortgage, (ii) in the event of
foreclosure of said mortgage or any other action thereunder
by the mortgagee, the mortgagee (and its successors in
interest) and Tenant shall be directly bound to each other
to perform the respective undischarged obligations of
Landlord and Tenant hereunder (in the case of Landlord
accruing after such foreclosure or other action and in the
case of Tenant whether accruing before or after such
foreclosure or other action), (iii) this Lease shall
continue in full force and effect, and (iv) Tenant's rights
hereunder shall not be disturbed, except as in this Lease
provided. The word "mortgage" as used herein includes
mortgages, deeds of trust and all similar instruments, all
modifications, extensions, renewals and replacements
thereof, and any and all assignments of the Landlord's
interest in this Lease given as collateral security for any
obligation of Landlord.
37. Modification. In the event that any holder or prospective
holder of any mortgage, as hereinbefore defined, which includes
the Premises as part of the mortgaged Premises, shall request any
modification of any of the provisions of this Lease, other than a
provision directly related to the Annual Rent, Additional Rent or
other sums payable hereunder, the duration of the Term hereof, or
the size, use or location of the Premises, Tenant agrees that
Tenant will enter into a written agreement in recordable form
with such holder or prospective holder which shall effect such
modification and provide that such modification shall become
effective and binding upon Tenant and shall have the same force
and effect as an amendment to this Lease in the event of
foreclosure or other similar action taken by such holder or
prospective holder or by anyone claiming by, through or under
such holder or prospective holder.
38. Multiple Parties. If Tenant shall consist of more than one
person or if there shall be a guarantor of Tenant's
obligations, then the liability of all such persons,
including the guarantor, if any, shall be joint and several.
39. Submission Not an Option. The submission of this Lease for
examination and negotiation does not constitute an offer to
lease, a reservation of, or option for the Premises and
shall vest no right in any party. Tenant or anyone claiming
under or through Tenant shall have the rights to the
Premises as set forth herein and this Lease becomes
effective as a Lease only upon execution and acknowledgement
thereof by Landlord and Tenant, regardless of any written or
verbal representation of any agent, manager or employee of
Landlord to the contrary.
40. Financial Information. It is hereby understood and agreed
that TENANT will supply to the LANDLORD, on an annual basis, a
copy of TENANT'S audited financial statement within one hundred
twenty (120) days following TENANT'S fiscal year end. Any
information obtained by LANDLORD pursuant to the provisions of
this Paragraph shall be treated as confidential, except that
LANDLORD may disclose such information to its lenders.
41. Signage
Tenant shall have the right, at Tenant's sole cost and
expense, to install new signage, the size and location of
which to be mutually agreed upon by Landlord and Tenant.
Notwithstanding the foregoing, any signage proposed by
Tenant must have Landlord's prior written approval, which
approval shall be at the reasonable discretion of the
Landlord, and must be in conformance with the standard sign
design criteria established by Landlord for the building and
the Town of Danvers. The Tenant, at its sole cost and
expense, shall be responsible for obtaining all municipal
and other approvals necessary for the erection and
maintenance of such sign. The Landlord shall cooperate with
the Tenant in its filing of applications for any such
approvals, provided that the Tenant shall pay all costs
associated with such applications and approvals.
42. Entire Agreement. This Lease and the exhibits and any rider
attached hereto, set forth all the covenants, promises,
agreements conditions, representations and understandings
between Landlord and Tenant concerning the Premises and
there are no covenants, promises, agreements, conditions,
representations or understandings, either oral or written
between them other than those herein set forth and this
Lease expressly supersedes any proposals or other written
documents relating hereto. Except as herein otherwise
provided, no subsequent alteration, amendment, change or
addition to this Lease shall be binding upon Landlord and
Tenant unless reduced to writing and signed by them. Tenant
agrees that Landlord and its agents have made no
representations or promises with respect to the Premises, or
the Building of which the Premises are a part, or the Lot,
except as herein expressly set forth.
IN WITNESS WHEREOF, the Landlord and Tenant have caused this
Lease to be signed in triplicate, under seal, as of the day and
year first above written, one copy for Tenant and two copies to
Landlord.
Witness as to Landlord:
Landlord: Thomas J. Flatley d/b/a The Flatley Company
By Thomas J. Flatley
Its President
Witness as to Tenant: Tenant: Abiomed, Inc.
By: John F. Thero
Its Vice President Finance
and Administration
Duly Authorized
Exhibit "B"
Landlord's Work
TENANT acknowledges that it has examined and inspected the
Premises and is familiar with the physical condition thereof.
TENANT further acknowledges (a) that other than in Paragraph 9 of
this Lease, LANDLORD has not made and does not hereby make any
representations regarding the physical condition of the Premises
and (b) that there are no warranties, either expressed or
implied, regarding the condition of the Premises. Any such
warranties which may exist, are hereby expressly released and
waived. Accordingly, TENANT hereby agrees to accept the Premises
in their "as-is" condition, except for the following:
1. LANDLORD shall supply and install rooftop HVAC Units to
provide heat and air conditioning to the Premises. TENANT shall
be responsible with as part of TENANT'S own fit up work to
install all supply and return air duct work and difusers.
Exhibit "C"
Tenant's Work
Tenant shall have the right, at its own cost and expense, to run
telephone and computer lines underground between the building at
24 Cherry Hill Drive, Danvers and the Premises at any time,
subject to Landlord's prior written approval of Tenant's plans,
which approval shall not be unreasonably withheld or delayed.
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains financial information extracted from the Company's
Consolidated Income Statement, Consolidated Balance Sheet and Consolidated
Statement of Cash Flows and is qualified in its entirety by reference to Form
10-Q for the period ending December 31, 1996.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> MAR-31-1997
<PERIOD-END> DEC-31-1996
<CASH> 1341094
<SECURITIES> 8131987
<RECEIVABLES> 3213835
<ALLOWANCES> 119000
<INVENTORY> 2049899
<CURRENT-ASSETS> 14920246
<PP&E> 3846458
<DEPRECIATION> 2518782
<TOTAL-ASSETS> 16768460
<CURRENT-LIABILITIES> 2228582
<BONDS> 0
0
0
<COMMON> 69823
<OTHER-SE> 14470055
<TOTAL-LIABILITY-AND-EQUITY> 16768460
<SALES> 10834371
<TOTAL-REVENUES> 10834371
<CGS> 3623033
<TOTAL-COSTS> 10984816
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> (406980)
<INCOME-PRETAX> 256535
<INCOME-TAX> 256535
<INCOME-CONTINUING> 256535
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 256535
<EPS-PRIMARY> .04
<EPS-DILUTED> .04
</TABLE>
