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Exhibit 10.9
L E A S E
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THIS INDENTURE OF LEASE made and entered into at Cleveland, County of
Cuyahoga and State of Ohio, on the 23rd day of March, 2000, by and between
SHERRY E. GREER and JAMES C. COMELLA, TRUSTEES, under T/A/D December 21, 1991,
hereinafter referred to as the "LESSOR", and ATHERSYS, INC., hereinafter
referred to as the "LESSEE", in consideration of the terms and conditions set
forth herein and for other good, valuable and sufficient consideration, granted,
bargained, and exchanged between the parties hereto;
W I T N E S S E T H:
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SECTION 1. - PREMISES.
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In consideration of the payment of the rental and the performance of the
covenants hereinafter set forth, the Lessor agrees to lease to Lessee (i) the
office warehouse building consisting of approximately 32,110 square feet at 3201
Carnegie Avenue, Cleveland, Ohio 44115, (ii) exclusive use of the parking areas
adjacent to such building and (iii) the non-exclusive use of Lessor's parking
lot east of 3201 Carnegie Avenue, Cleveland, Ohio as depicted in Exhibit "A",
for Lessee's customers and employees all in their present condition upon such
terms mutually acceptable to the parties (but without additional rent as to the
parking areas).
SECTION 2. - USE.
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(A) Lessee shall use the premises for a biomedical laboratory and
production facility together with general office space and for such other uses
as may be incidental or related thereto.
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(B) Lessee shall use and occupy the premises in a careful, safe and proper
manner, keeping the same in a clean and safe condition and shall observe and
comply with all rules, orders and regulations of the Federal, State and
Municipal governments affecting the leased premises including the making of
alterations and structural changes and shall obtain all necessary permits for
such alterations.
SECTION 3. - TERM & OPTION.
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(A) The term of this Lease shall be for a period of three (3) years
commencing on the earlier of April 1, 2000 or the date tenant has completed its
improvements, moved into the premises and commenced operations at the premises
but no earlier than March 15, 2000. (The "Rent Commencement Date")
(B) Providing that Lessee is not in default of any of the terms and
conditions of this Lease, Lessor hereby grants Lessee the option to renew and
extend this Lease for four (4) consecutive six (6) month terms. The exercise of
these options shall be in writing and delivered to the Lessor no later than one
hundred twenty (120) days prior to the completion of the term of this Lease or
any extensions thereof.
(C) In the event of any holding over after the expiration of this Lease or
any extensions thereof such holding over shall be on a month to month basis and
upon the same terms and conditions of this Lease or any extension thereto except
that the rental shall be computed as provided in Section 4(B) hereinafter.
(D) In the event Lessor can give Lessee possession at an earlier date, the
rent shall commence on such earlier date all subject to the terms of this lease
and providing Lessee is in compliance with Section 7.
(E) Lessee to obtain possession of premises on or prior to January 1, 2000
for purposes of performing its build-out, moving-in and commencing operations
including without limitation access for measuring and planning purposes and to
store certain components to be installed during build-out at the site any time.
Such access and storage will be coordinated with the existing Lessor.
SECTION 4. - RENT.
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(A) The Lessee hereby covenants and agrees to pay Lessor, without demand,
at his office or such other places as Lessor may from time to time direct, as
fixed rent for said premises for the term the sum of Five Hundred Eighty-Six
Thousand Three Hundred Fourteen Dollars ($586,314.00) in equal consecutive
monthly installments of Sixteen Thousand Two Hundred Eighty-Six Dollars and
Fifty Cents ($16,286.50) on the first day of each month commencing on the Rent
Commencement Date. In the event the lease commences during a month, the rent
shall be prorated to the first day of the succeeding month.
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(B) In the event Lessee exercises its options to extend this Lease as
provided hereinabove, or in the event of any holding over, such renewal or
holding over shall be upon the same terms, covenants and conditions of this
Lease except that the rental for such terms shall be Ninety-Seven Thousand Seven
Hundred Nineteen Dollars ($97, 719.00) for each renewed term payable in equal
consecutive monthly installments of Sixteen Thousand Two Hundred Eighty-Six
Dollars and Fifty Cents ($16,286.50) per month.
SECTION 5. - ADDITIONAL RENT. - (REAL PROPERTY TAXES, ASSESSMENTS, INSURANCE,
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UTILITIES, MAINTENANCE AND OTHER COSTS).
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(A) Lessee shall be responsible for and shall pay the costs of all
utilities used or consumed in conjunction with Lessee's use of the leased
premises including but not limited to water rents, sewer charges, gas and
electric charges. Lessor will provide at its own cost, if necessary, separate
meters for electricity, gas, and water/sewer charges.
(B) Lessee shall be responsible for and shall pay the costs of any repairs,
alterations, renovations, remodeling, redecoration and general maintenance of
the leased premises which may be required or desired to keep the said premises
fit for occupancy for the purposes herein described, except as otherwise may be
provided in Section 8 hereof.
(C) Lessee shall reimburse Lessor [within ten (10) days after receipt of
the current tax bill from Lessor] for real estate taxes attributable to periods
during the term of the lease commencing with the Rent Commencement Date. This
does not include 3303 Carnegie Avenue upon which some of Lessee's parking spaces
are located. At the termination of the lease or any extensions thereof, Lessee
shall pay Lessor real estate taxes for the months of the Lease in which Lessee
occupied the premises based on the last available tax bill, which payment shall
be final. It is the intention of the parties that Lessee will be responsible for
reimbursing Lessor for the real estate taxes for the term which will not become
due until January, 2001 when first half of year 2000 taxes will be due and which
will be prorated for the actual portion of such half which relates to Lessee's
use. In the event Lessee exercises any of its options provided herein such
prorations will continue based on the then current taxes.
SECTION 6. - SECURITY.
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Waived.
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SECTION 7. - LIABILITY INSURANCE AND HOLD HARMLESS.
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(A) Lessee will indemnify Lessor and save Lessor harmless from and against
any and all claims, actions, damages, liability and expense in connection with
loss, damage or injury to persons or property occurring in, upon or at the
premises and common areas and the parking lots or occasioned wholly or in part
by any negligent act or omission of Lessee, Lessee's agents, contractors,
customers or employees or parties claiming through Lessee.
(B) Lessor will indemnify Lessee and save Lessee harmless from and against
any and all claims, actions, damages, liability and expense in connection with
loss, damage or injury to persons or property occurring in, upon or at the
premises and common areas and the adjacent parking lots or occasioned wholly or
in part by any negligent act or omission of Lessor, Lessor's agents,
contractors, customers or employees or parties claiming through Lessor.
(C) Lessee at all times during the term of this Lease shall, at its own
expense, keep in full force and effect, Public Liability Insurance or Commercial
General Liability Insurance on the leased premises and the adjacent parking lots
in companies acceptable to Lessor, naming both Lessor and Lessee as insureds as
their interests may appear, with a minimum combined single limit of
$1,000,000.00 bodily injury and $1,000,000.00 property damage and $2,000,000.00
general aggregate with an additional umbrella coverage of $4,000,000.00 and
shall deposit the policy or policies of such insurance, or certificates thereof,
with Lessor.
(D) Lessee shall maintain "special form" property coverage for Lessee's
personal property owned by it and interior improvements and Lessor shall have no
obligation with respect thereto.
SECTION 8. - REPAIRS, RENOVATIONS, IMPROVEMENTS AND MAINTENANCE
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(A) Lessee, at its expense, shall have the right during the continuance of
this Lease, to make such alterations or improvements in the premises, as may be
proper and necessary for the conduct of the Lessee's business and for the full
beneficial use of the premises provided Lessee in writing shall first obtain
Lessor's written consent, which consent will not be unreasonably withheld and
will be deemed given if Lessor fails to respond within the ten (10) days after
receipt of said written request from Lessee.
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(B) Lessee, at its own expense, will keep and maintain the interior of the
premises and the adjacent parking lot in good condition and repair, including
but not limited to regular and preventive maintenance to the HVAC, electrical
and mechanical installations, plumbing and regular and preventive maintenance to
sewer systems, the exterior doors and window frames and shall make any
replacements thereof, except as set forth in "G" below, do all necessary
painting and decorating, and shall replace all broken glass. All such repairs
and replacements shall be equal in quality and class to the original work or
item.
(C) Lessee agrees that in the event that it shall have to make any changes
in the heating, ventilating and air conditioning systems within the premises,
which changes shall result in the relocation or resizing of the equipment or in
the requirements of the utility services used in the operation thereof, Lessee
shall first present to Lessor full and detailed plans of such changes and shall
not commence work on any such changes without the written consent of Lessor.
Notwithstanding the foregoing, Landlord shall permit Tenant to upgrade the HVAC
system in certain laboratory areas to a "one pass air system".
(D) Lessor and Lessee shall make all required repairs, alterations,
installations and improvements in accordance with applicable laws and building
codes and in a good and workmanlike manner.
(E) In the event that any mechanic's lien or any other type of lien shall
be filed against the property of Lessor as a result of Lessee's acts,
responsibility or failure to act, the Lessee shall indemnify and save harmless
the Lessor against all loss, liability, costs or damages as a result of any such
mechanic's lien, or other type of lien, and the Lessee shall, within twenty (20)
days of the filing of any such lien, remove, pay or cancel said lien, secure the
payment of any such liens or liens by bond or other acceptable security or, at
its own expense, to contest and defend on behalf of the Lessee, or Lessor any
action involving the collection, validity or removal of such lien or liens.
(F) Nothing herein contained shall be construed as a consent to anyone on
the part of the Lessor, either express or implied, to subject the interest of
the Lessor in the premises to any mechanic's lien or liability under the
Mechanic's Lien Law of Ohio.
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(G) Landlord shall be responsible at its sole cost for the maintenance,
repair and replacement of building structural components, the exterior of the
building, parking surfaces, landscaping and roof. Landlord shall also be
responsible for the replacement of the HVAC systems providing that such systems
were properly maintained by Lessee.
(H) Lessor agrees to permit Lessee to construct signage on the building and
at appropriate entrance ways and parking areas subject to governmental
approvals.
(I) Landlord shall provide an eight (8) yard dumpster and appropriate
removal services at least once a week and shall at its cost remove snow from
parking areas pursuant to a contract which provides snow removal at times and
intervals substantially similar to similarly situated warehouse buildings and
commercially reasonable for Lessee's purposes.
SECTION 9. - ACCESS BY LESSOR.
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Lessor may have free access to the "premises" at all reasonable times upon
one (1) hour's notice to Lessee during Lessee's business hours between 9:00 A.M.
and 5:00 P.M., or otherwise without notice for emergency purposes, for the
purpose of examining the same or to make any alterations or repairs to the
building that Lessor may deem necessary for its safety of preservation, and also
during the last three (3) months of the term, or extended term, of this Lease
for the purpose of exhibiting said "premises" and putting up the usual notice
of "to rent" or "for sale", which notice shall not be removed, obliterated or
hidden by Lessee, and which signs shall not hide nor obliterate Lessee's signs
used in its business.
SECTION 10. - DEFAULT.
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The following shall be events of default under the terms and conditions of
this Lease, to wit:
(A) Failure by the Lessee to pay any portion of the rents required to be
paid under Section 4, 5, 6 and 7 herein on any rental payment date, or within
ten (10) days thereafter.
(B) Failure by the Lessee to observe and perform any term, covenant or
condition on its part to be performed, for a period of thirty (30) days, or such
additional time as may be reasonably required, after written notice has been
given to the Lessee by the Lessor specifying such failure and requesting that it
be remedied; and/or
(C) The dissolution or liquidation of the Lessee or the filing by the
Lessee of a voluntary petition in bankruptcy or the commission by the Lessee of
any act of bankruptcy, or the
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adjudication of the Lessee as a bankrupt, or an assignment by the Lessee for the
benefit of its creditors, or the entry by the Lessee into an agreement of
composition with its creditors, or the approval by a court of competent
jurisdiction of a petition applicable to the Lessee in any proceeding for its
reorganization instituted under the provisions of the General Bankruptcy Act,
as amended, or under any similar act which may hereafter be enacted. The terms
"dissolution or liquidation of tenant" as used herein shall not be construed to
include the cessation of the corporate existence of the Lessee resulting from a
merger or consolidation of the Lessee into or with another corporation, or
dissolution or liquidation of the Lessee following a transfer of all or
sub-stantially all of its assets.
SECTION 11. - REMEDIES ON DEFAULT.
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Whenever any event of default referred to in Section 10 hereinabove shall
have happened and be subsisting, the Lessor may take one or more of the
following remedial steps:
(A) The Lessor may, at its option, declare all installments of rent under
Section 10 hereinabove for the remainder of the term hereof to be immediately
due and payable, whereupon the same shall become immediately due and payable;
and/or
(B) The Lessor may re-enter and take possession of the leased premises
without terminating this Lease and sublet the premises for the account of the
Lessee, holding the Lessee liable for the difference in the rent and other
amounts payable by such sub-tenant in such subletting and the rents and other
amounts payable by the Lessee hereunder; and/or
(C) The Lessor may terminate this Lease, exclude the Lessee from possession
of the leased premises and use its best efforts to lease the premises to another
for the account of the Lessor, holding the Lessee liable for all rents and other
payments due up to the effective date of such leasing; and/or
(D) The Lessor may take whatever action at law or in equity may appear
reasonably necessary or desirable to collect the rent then due and thereafter to
become due, or to enforce performance and observance of any covenant of the
Lessee under this Indenture of Lease.
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SECTION 12. - NO REMEDY EXCLUSIVE.
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No remedy herein conferred upon or reserved to a party is intended to be
exclusive of any other available remedy or remedies, but each and every such
remedy shall be cumulative and shall be in addition to every other remedy given
under this Indenture of Lease or hereafter existing at law or in equity, or by
statute.
SECTION 13. - QUIET ENJOYMENT.
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The Lessor will warrant and defend the right of peaceful possession and
enjoyment by the Lessee to the premises during the term of any renewals or
extensions thereof against all parties. The Lessor covenants that the Lessee,
upon paying the rental herein provided and performing the conditions and
agreements herein contained on its part to be kept and performed, shall at all
times during the term and any renewals and extensions hereof, peaceably and
quietly have, hold, use and enjoy the leased premise and the appurtenances
thereunto belonging to without hindrance or molestation by the Lessor or any
other person or persons.
SECTION 14. - SURRENDER.
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At the expiration of the Lease, whether by lapse of time or otherwise, the
Lessee shall surrender the leased premises broom clean and in good order and
condition, reasonable wear and tear, damaged by fire, the elements and other
casualty excepted. Notwithstanding any provision to the contrary, the Lessee
shall have the right to remove from the leased premises, all trade fixtures,
including furniture, equipment, merchandise, artifacts, signs and all other
personal property. The Lessee shall not be required to restore or change any
remodeling, improvements, alterations, or repairs made by it to the interior or
exterior of the leased premises. All improvements or alterations made by the
Lessee shall be the sole property of the Lessor.
SECTION 15. - DESTRUCTION OR DAMAGE TO BUILDING.
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(A) In the event the premises should be damaged by fire, explosion, or any
other casualty or occurrence and the premises should be damaged to any
substantial extent and if Lessor elects to either repair or rebuild the
premises, this Lease shall remain in full force and effect and the Lessee's
liability to pay rent under this Lease shall not cease; provided, however, that
the fixed rent and all other charges shall abate proratably for that portion of
the premises not usable by Lessee. Lessee may at its option terminate this Lease
if the premises cannot be repaired within one hundred twenty (120) days.
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(B) If Lessor elects not to repair or rebuild the premises this lease shall
terminate upon the giving notice of such election to Lessees within sixty (60)
days after such event and any prepaid rentals shall be refunded to Lessee. In no
event, under subsection (A) hereof, shall Lessor be required to repair or
replace Lessee's stock in trade fixtures, furnishings, floor coverings or
equipment. Upon termination of this lease, Lessee shall have no further
obligation to Lessor upon its vacation of the premises.
SECTION 16. - EMINENT DOMAIN.
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If all or any part of the leased premises shall be appropriated, condemned
or taken by a paramount authority, or sold to such authority, the Lessee, at its
option, may terminate this Lease at any time after the date the paramount
authority takes title, or as of the date the paramount authority requires
possession. The Lessee shall have the right to recover from the condemning
authority such compensation as may be separately awarded to the Lessee on
account of the interruption of the Lessee's business, for moving and relocation
expenses, and for depreciation to, and removal of the Lessor's goods, trade
fixtures, equipment and leasehold improvements.
SECTION 17. - MORTGAGE SUBORDINATION AND NON-DISTURBANCE AGREEMENT.
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(A) Lessor reserves the right to demand and obtain from the Lessee a Waiver
of Priority of its lien arising by virtue of the within Leasehold Estate,
thereby subordinating Lessee's said lien in favor of a first mortgage lien
arising from an anticipated first mortgage loan, or in favor of any first
mortgage lien of any refinancing or replacing first mortgage loan that may
become necessary or desirable from time to time to the Lessor for the same, and
Lessee agrees to execute at any and all times such instruments that may be
required by any such lending institution or prospective first mortgage in order
to effectuate such Waiver of Priority and subordination of Lessor' lien.
(B) If Lessee, within five (5) days after submission of any such
instrument, fails to execute the same, Lessor is hereby authorized to
execute the same as attorney in fact for Lessee.
(C) It is a condition, however, to the subordination and lien provisions
herein provided that Lessor, shall, procure from any such mortgagee an
agreement in writing, which shall be delivered to Lessee, providing
in substance that so long as Lessee shall faithfully discharge the
obligations on its part to be kept and performed under the
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terms of this Lease, its tenancy will not be disturbed nor this Lease affected
by any default under such mortgage.
SECTION 18. - LESSOR REPAIRS
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Notwithstanding the foregoing, the Landlord shall, at its sole cost and
expense make the following renovations to be completed by no later than March
15, 2000:
(A) Replace carpet (to "builder's standard grade", selection made by
Tenant) and repaint and repair second floor office area where previous tenant
removed cubicle walls; and
(B) Make all repairs and additions necessary to (a) meet requirements of
the Americans with Disabilities Act, (b) meet code requirements of the City of
Cleveland (Tenant to obtain a third party inspection by January 1, 2000 and
submit to Landlord a copy of any report listing deficiencies); and (c) insure
operation of all building systems as "Y2K" compliant.
(C) Install and/or repair an existing electrical back-up generation system
including generator, autostart system and UPS systems for the premises.
SECTION 19. - NOTICE AND RENTAL PAYMENTS.
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Any notice shall be deemed given when sent certified or registered mail,
"Return Receipt Requested", or by nationally recognized overnight express mail
carrier and addressed as follows:
TO THE LESSOR: James C. Comella and Sherry E. Greer,
Trustees
3950 Carnegie Avenue
Cleveland, Ohio 44115
AND TO: Edward R. Reichek, Esq.
75 Public Square, Suite 1225
Cleveland, Ohio 44113
TO THE LESSOR: Athersys, Inc.
3201 Carnegie Avenue
Cleveland, Ohio 44115
AND TO: William A. Herzberger, Esq.
Jones, Day, Reavis & Pogue
901 Lakeside Avenue
Cleveland, Ohio 44114
(A) Any party hereto may from time to time specify a new address to which
any such notice or rental payment shall thereafter and until further notice be
sent.
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SECTION 20. - SEVERABILITY.
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In the event that any provision or item of this Indenture of Lease, or the
application thereof to any facts is rendered invalid by the decision of any
court or by the enactment of any law, ordinance or regulation, such provision
of this Indenture of Lease shall be deemed to have never been included herein,
or shall be deemed not to apply to such facts as the case may be, and the
balance of this Indenture of Lease shall continue in effect in accordance with
its terms.
SECTION 21. - WAIVERS.
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In the event any agreement in this Indenture of Lease shall be breached by
either party and thereafter waived by the other party, such waiver shall be
limited to the particular breach so waived and shall not be deemed to waive any
other breach here under.
SECTION 22. - COMPLETE AGREEMENT.
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(A) This Agreement is deemed to contain all of the terms and conditions
bargained and exchanged by and between the parties hereto an no parol
representations, warranties or outside conditions are permitted to vary the
written agreement as set forth in this Indenture of Lease.
(B) This Agreement and all of its terms and conditions shall inure to the
benefit of the parties hereto, their respective successors and assigns, and
shall be binding upon all such successors in interest and assigns of the parties
hereto.
(C) No modification of this Lease shall affect any of the terms and
conditions herein set forth unless such modification shall be in writing and
signed by the parties hereto, or their successors and assigns.
(D) Tenant may, without Landlord's consent, sublet or assign premises, or
any part thereof, to (i) any successor of Tenant resulting from a merger,
acquisition or consolidation of Tenant, (ii) any subsidiary of Tenant or (iii)
any entity under common control with Tenant. Assignments and subleases to other
parties upon prior written consent of Landlord which consent shall not be
unreasonably withheld.
SECTION 23. - CONTINGENCIES
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Tenant's obligations except as to rent (use and occupancy) are contingent
upon receipt of a Certificate of Occupancy from the City of Cleveland upon
completion of Tenant's improvements.
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SECTION 24. - ENVIRONMENTAL
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Lessor warrants that there is no asbestos or other hazardous material in
the building or at the premises and shall indemnify Lessee for costs, claims and
actions arising out of hazardous conditions at the premises existing prior to
December 15, 1999.
Lessee to obtain all necessary permits and handle environmental materials
only as permitted and in accordance with applicable law and to indemnify Lessor
for costs, claims and actions arising out of Tenant's, and its employee's and
invitee's environmental actions at the premises.
SECTION 25. - BROKERS
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Each party represents that it has not used a broker or finder and
indemnifies the other party from and against the cost of any broker or finder
claiming by or through such party.
SECTION 26. - SHORT FORM LEASE.
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This Lease shall not be recorded, but a Memorandum of this Lease describing
the property herein demised, giving Term of this Lease and renewal rights, if
any, and referring to this Lease, may be recorded by either party.
IN WITNESS WHEREOF, the parties hereto set their hands to duplicate copies
hereof, each of which shall constitute an original this 31st day of March, 2000,
as to Lessor, and this 23rd day of March, 2000, as to Lessee.
Signed in the presence of: LESSOR:
/s/ Sarantos C. Krokos /s/ James C. Comella, Trustee
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James C. Comella, Trustee
/s/ Carmen Scimone /s/ Sherry E. Greer
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Sherry E. Greer, Trustee
LESSEE:
ATHERSYS, INC.
/s/ David Maske BY /s/ James Kovach, COO, EVP
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/s/ Evan A. Facher BY /s/ Gil Van Bokkelen, CEO
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LESSOR'S ACKNOWLEDGEMENT
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STATE OF OHIO )
) ss.
COUNTY OF CUYAHOGA )
BEFORE ME, a Notary Public, in and for said County and State, personally
appeared JAMES C. COMELLA and SHERRY E. GREER, Trustees, who acknowledged that
he did sign the foregoing instrument and that the same is his free act and deed.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal at
Cleveland, Ohio, this 31st day of March, 2000.
/S/ Edward R. Reichek
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NOTARY PUBLIC
LESSEE'S ACKNOWLEDGEMENT
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STATE OF OHIO )
) ss.
COUNTY OF CUYAHOGA )
BEFORE ME, a Notary Public, in and for said County and State, personally
appeared the above-names ATHERSYS, INC., by GIL VAN BOKKELEN, its CEO and JAMES
KOVACH, its COO and E.V.P., who acknowledged that they did sign the foregoing
instrument and that the same is their free act and deed.
IT WITNESS WHEREOF, I have hereunto set my hand and official seal at
Cleveland, Ohio, this 23rd day of March, 2000.
/S/ William Herzberger
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NOTARY PUBLIC
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