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EXHIBIT 10.1
COMMERCIAL LEASE
1. PARTIES:
CLEMATIS LLC, with a principal place of business at 411 Waverley Oaks
Road, Suite 340, Waltham, MA, 02452, LESSOR, which expression shall
include its heirs, successors, and assigns where the context so admits,
does hereby lease to Interleukin Genetics, Inc., 100 North East Loop
410, San Antonio, TX 78216, LESSEE, which expression shall include its
successors, executors, administrators, and assigns where the context so
admits, and the LESSEE hereby leases the following described premises:
2. PREMISES:
2,600 sq. ft. + / - on the second floor of 135 Beaver Street, Waltham,
MA, 02452, together with the right to use in common, with others
entitled thereto, the hallways, stairways, and elevators, necessary for
access to said leased premises, and lavatories nearest thereto.
3. TERM:
The term of this lease shall be for five years commencing on July 15,
2000 or upon substantial completion of buildout required per Exhibit A
and ending on June 30, 2005. The LESSOR will work with the LESSEE in
trying to have the leased premises ready for occupancy as soon as
possible. If the leased premises are ready for occupancy on a date
other than July 15, 2000, the rent will be adjusted on a daily prorated
basis.
4. RENT:
The LESSEE shall pay to the LESSOR rent at the rate of $78,000.00
dollars per year, payable in advance in monthly installments of
$6,500.00.
Upon the execution of this lease the LESSEE shall pay to the LESSOR the
first months rent in the amount of $6,500.00.
See #7.
5. SECURITY DEPOSIT:
Upon the execution of this lease, the LESSEE shall pay to the LESSOR
the amount of $6,500.00 dollars, which shall be held as a security for
the LESSEE's performance as herein provided and refunded to the LESSEE
at the end of this lease subject to the LESSEE's satisfactorily
compliance with the conditions hereof.
6. RENT ADJUSTMENT:
A. TAX ESCALATION: If any tax year commencing with the fiscal year end
6/01, the real estate taxes on the land and buildings, of which the
leased premises are a part, are in excess of the amount of the real
estate taxes thereon for the fiscal year end 6/00
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(hereinafter called the "Base Year"), LESSEE will pay to LESSOR as
additional rent hereunder, when and as designated by notice in writing
by LESSOR, 2.7 per cent of such excess that may occur in each year of
the term of this lease or any extension or renewal thereof and
proportionately for any part of a fiscal year. If the LESSOR obtains an
abatement of any such excess real estate tax, a proportionate share of
such abatement, less the reasonable fees and costs incurred in
obtaining the same, if any, shall be refunded to the LESSEE.
B. OPERATING COST ESCALATION: The LESSEE shall pay to the LESSOR as
additional rent hereunder when and as designated by notice in writing
by LESSOR, 2.7 per cent of any increase in operating expenses over
those incurred during the calendar year 2000. Operating expenses are
defined for the purposes of this agreement as:
See Attached Appendicies.
This increase shall be prorated should this lease be in effect with
respect to only a portion of any calendar year.
7. UTILITIES:
The LESSEE shall pay, as they become due, all bills for electricity and
other utilities (whether they are used for furnishing heat or other
purposes) that are furnished to the leased premises and all bills for
fuel furnished to a separate tank servicing the leased premises
exclusively. The LESSOR agrees to provide all other utility service and
to furnish reasonably hot and cold water and reasonable heat and air
conditioning (except to the extent that the same are furnished through
separately metered utilities or separate fuel tanks as set forth above)
to the leased premises, the hallways and stairways during normal
business hours on regular business days of the heating and air
conditioning seasons of each year, to furnish elevator service and to
light passageways and stairways during business hours, and to furnish
such cleaning service as is customary in similar buildings in said city
or town, all subject to interruption due to any accident, to the making
of repairs, alterations, or improvements, to labor difficulties, to
trouble in obtaining fuel, electricity, service, or supplies from the
sources from which they are usually obtained for said building, or to
any cause beyond the LESSOR's control. If leased premises are not
separately metered for Tenant electric (lights and plugs), Lessee will
pay Lessor $1.10 per rentable sq. ft. for Tenant electric as additional
rent.
LESSOR shall have no obligation to provide utilities or equipment other
than the utilities and equipment within the premises as of the
commencement date of this lease. In the event LESSEE requires
additional utilities or equipment, the installation and maintenance
thereof shall be the LESSEE's sole obligation, provided that such
installation shall be subject to the written consent of the LESSOR.
8. USE OF LEASED PREMISES:
The LESSEE shall use the leased premises only for the purpose of
general office and administrative use.
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9. COMPLIANCE WITH LAWS: The LESSEE acknowledges that no trade or
occupation shall be conducted in the leased premises or use made
thereof which will be unlawful, improper, noisy or offensive, or
contrary to any law or any municipal by-law or ordinance in force in
the city or town in which the premises are situated.
10. FIRE INSURANCE: The LESSEE shall not permit any use of the leased
premises which will make voidable any insurance on the property of
which the leased premises are a part, or on the contents of said
property or which shall be contrary to any law or regulation from time
to time established by the New England Fire Insurance Rating
Association, or any similar body succeeding to its powers. The LESSEE
shall on demand reimburse the LESSOR, and all other tenants, all extra
insurance premiums caused by the LESSEE's use of the premises.
11. MAINTENANCE:
A. LESSEE'S OBLIGATIONS: The LESSEE agrees to maintain the leased
premises in good condition, damage by fire and other casualty
only excepted, and whenever necessary, to replace plate glass
and other glass therein *, acknowledging that the leased
premises are now in good order and the glass whole. The LESSEE
shall not permit the leased premises to be overloaded,
damaged, stripped or defaced, nor suffer any waste. LESSEE
shall obtain written consent of LESSOR before erecting any
sign on the premises.
* That is damaged by the negligence of the LESSEE or invitees of
the LESSEE.
B. LESSOR'S OBLIGATIONS: The LESSOR agrees to maintain the structure of
the building of which the leased premises are a part in the same
condition as it is at the commencement of the term or as it may be put
in during the term of this lease, reasonable wear and tear, damage by
fire and other casualty only excepted, unless such maintenance is
required because of the LESSEE or those for whose conduct the LESSEE is
legally responsible.
12. ALTERATIONS - ADDITIONS:
The LESSEE shall not make structural alterations or additions to the
leased premises, but may make non-structural alterations provided the
LESSOR consents thereto in writing, which consent shall not be
unreasonably withheld or delayed. All such allowed alterations shall be
at LESSEE's expense and shall be in quality at least equal to the
present construction. LESSEE shall not permit any mechanics' liens, or
similar liens, to remain upon the leased premises for labor and
material furnished to LESSEE or claimed to have been furnished to
LESSEE in connection with work of any character performed or claimed to
have been performed at the direction of LESSEE and shall cause any such
lien to be released of record forthwith without cost to LESSOR. Any
alterations or improvements made by the LESSEE shall become the
property of the LESSOR at the termination of occupancy as provided
herein.
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13. ASSIGNMENT - SUBLEASING:
The LESSEE shall not assign or sublet the whole or any part of the
leased premises without LESSOR's prior written consent. Notwithstanding
such consent, LESSEE shall remain liable to LESSOR for the payment of
all rent and for the full performance of the covenants and conditions
of this lease. See Addendum.
14. SUBORDINATION:
This lease shall be subject and subordinate to any and all mortgages,
deeds of trust and other instruments in the nature of a mortgage, now
or at any time hereafter, a lien or liens on the property of which the
leased premises are a part and the LESSEE shall, when requested,
promptly execute and deliver such written instruments as shall be
necessary to show the subordination of this lease to said mortgages,
deeds of trust or other such instruments in the nature of a mortgage.
15. LESSOR'S ACCESS:
The LESSOR or agents of the LESSOR may, at reasonable times, enter to
view the leased premises and may remove placards and signs not approved
and affixed as herein provided, and make repairs and alterations as
LESSOR should elect to do and may show the leased premises to others,
and at any time within three (3) months before the expiration of the
term, may affix to any suitable part of the leased premises a notice
for letting or selling the leased premises or property of which the
leased premises are a part and keep the same so affixed without
hindrance or molestation.
16. INDEMNIFICATION AND LIABILITY:
The LESSEE shall save the LESSOR harmless from all loss and damage
occasioned by the use or escape of water or by the bursting of pipes *,
as well as from any claim or damage resulting from neglect in not
removing snow and ice from the roof of the building or from the
sidewalks bordering upon the premises so leased, or by any nuisance
made or suffered on the leased premises, unless such loss is caused by
the neglect of the LESSOR. The removal of snow and ice from the
sidewalks bordering upon the leased premises shall be LESSOR's
responsibility.
* Due to the negligence of the LESSEE or the invitees of the LESSEE.
17. LESSEE'S LIABILITY INSURANCE:
The LESSEE shall maintain with respect to the leased premises and the
property of which the leased premises are a part comprehensive public
liability insurance in the amount of 1 MILLION CSL with property damage
insurance in limits of 1 MILLION CSL in responsible companies qualified
to do business in Massachusetts and in good standing therein insuring
the LESSOR and well as LESSEE against injury to persons or damage to
property as provided. The LESSEE shall deposit with the LESSOR
certificates for such insurance at or prior to the commencement of the
term, and thereafter within thirty (30)
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days prior to the expiration of any such policies. All such insurance
certificates shall provide that such policies shall not be canceled
without at least ten (10) days prior written notice to each assured
named therein.
18. FIRE, CASUALTY - EMINENT DOMAIN:
Should a substantial portion of the leased premises, or of the property
of which they are a part be substantially damaged by fire or other
casualty, or be taken by eminent domain, the LESSOR may elect to
terminate this lease. When such fire, casualty, or taking renders the
leased premises substantially unsuitable for their intended use, a just
and proportionate abatement of rent shall be made, and the LESSEE may
elect to terminate this lease if;
(a) The LESSOR fails to give written notice within thirty (30)
days of intention to restore leased premises, or
(b) The LESSOR fails to restore the leased premises to a condition
substantially suitable for their intended use within ninety
(90) days of said fire, casualty or taking.
The LESSOR reserves, and the LESSEE grants to the LESSOR, all rights
which the LESSEE may have for damages or injury to the leased premises
for any taking by eminent domain, except for damage to the LESSEE's
fixtures, property or equipment.
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19. DEFAULT AND BANKRUPTCY:
In the event that:
(a) The LESSEE shall default in the payment of any installment of
rent or other sum herein specified and such default shall
continue for ten (10) days after written notice thereof; or
(b) The LESSEE shall default in the observance or performance of
any other of the LESSEE's covenants, agreement, or obligations
hereunder and such default shall not be corrected within
thirty (30) days after written notice thereof; or
(c) The LESSEE shall be declared bankrupt or insolvent according
to law, or, if any assignment shall be made of LESSEE's
property for the benefit of creditors,
then the LESSOR shall have the right thereafter, while such default
continues, to re-enter and take complete possession of the leased
premises, to declare the term of this lease ended, and remove the
LESSEE's effects, without prejudice to any remedies which might be
otherwise used for arrears of rent or other default. The LESSEE shall
indemnify the LESSOR against all loss of rent and other payments which
the LESSOR may incur by reason of such termination during the residue
of the term. If the LESSEE shall default, after reasonable notice
thereof, in the observance or performance of any conditions or
covenants on LESSEE's part to be observed or performed under or by
virtue of any of the provisions in any article of this lease, the
LESSOR, without being under any obligation to do so and without thereby
waiving such default, may remedy such default for the account and at
the expense of the LESSEE. If the LESSOR makes any expenditures or
incurs any obligations for the payment of money in connection
therewith, including but not limited to, reasonable attorney's fees in
instituting, prosecuting or defending any action or proceeding, such
sums paid or obligations insured, with interest at the rate of 15 per
cent per annum and costs, shall be paid to the LESSOR by the LESSEE as
additional rent.
20. NOTICE:
Any notice from the LESSOR to the LESSEE relating to the leased
premises or to the occupancy thereof, shall be deemed duly served, if
left at the leased premises addressed to the LESSEE, or if mailed to
the leased premises, registered or certified mail, return receipt
requested, postage prepaid, addressed to the LESSEE. Any notice from
the LESSEE to the LESSOR relating to the leased premises or to the
occupancy thereof, shall be deemed duly served, if mailed to the LESSOR
by registered or certified mail, return receipt requested, postage
prepaid, addressed to the LESSOR at such address as the LESSOR may from
time to time advise in writing. ALL rent notices shall be paid and sent
to the LESSOR at 411 Waverley Oaks Road, Suite 340, Waltham, MA 02452.
21. SURRENDER:
The LESSEE shall at the expiration or other termination of this lease
remove all LESSEE's goods and effects from the leased premises,
(including, without hereby
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limiting the generality of the foregoing, all signs and lettering
affixed or painted by the LESSEE, either inside or outside the leased
premises). LESSEE shall deliver to the LESSOR the leased premises and
all keys, locks thereto, and other fixtures connected therewith and all
alterations and additions made to or upon the leased premises, in good
condition, damage by fire or other casualty only excepted. In the event
of the LESSEE's failure to remove any of LESSEE's property from the
premises, LESSOR is hereby authorized, without liability to LESSEE for
loss or damage thereto, and at the sole risk of LESSEE, to remove and
store any of the property at LESSEE's expense, or to retain same under
LESSOR's control or to sell at public or private sale, without notice
any or all of the property not so removed and to apply the net proceeds
of such sale to the payment of any sum due hereunder, or to destroy
such property.
22. LATE FEES:
LESSEE agrees that because of actual damages for a late payment or a
dishonored check are difficult to fix or ascertain, but recognizing
that damage and injury result therefore, LESSEE agrees that if payments
of rent and other obligations are not received in hand by LESSOR five
(5) days after the date is due, LESSEE agrees to pay liquidated damages
of $100.00 plus 18% per annum on the delinquent amount from the due
date. The postmark on the payment, received plus two (2) days, shall be
conclusive evidence of whether the payment is delinquent. However,
LESSOR is not responsible for late deliveries by U.S. Mail. LESSEE
agrees to pay a liquidated damage of $25.00 for each dishonored check.
In the event that two or more of the LESSEE's checks are dishonored in
a 12 month period, the LESSOR, in addition to other Rights, shall have
the right to demand payment by Certified Check or Money Order.
23. OTHER PROVISIONS:
It is also understood and agreed that
o Attached Addendum, Appendices D, E F and Exhibit G are part of
this Agreement.
o Attached Exhibit A buildout plan is part of this Agreement.
IN WITNESS WHEREOF, the said parties hereunto set their hands and seals this
day of May, 2000.
Interleukin Genetics, Inc. Clematis LLC
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LESSEE LESSOR
Phillip Riley Duffy Bros. Management Company, Inc.
Manager
Norman J. Duffy, President.
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