Exhibit 10.22
CUMMINGS PROPERTIES MANAGEMENT, INC. 893480-RED-A
STANDARD FORM
COMMERCIAL LEASE
In consideration of the covenants herein contained, Cummings Properties
Management, Inc., hereinafter called LESSOR, does hereby lease to ScripTech
Pharmaceuticals, Inc. (a DE corp.) One Kendall Square, Cambridge, MA 02139
hereinafter called LESSEE, the following described premises, hereinafter called
the leased premises: approximately 15,440 square feet (including 9.6% common
area) at 200 Boston Avenue, Suites 3000 & G600, Medford, MA.
TO HAVE AND HOLD the leased premises for a term of five (5) years commencing at
noon on November 1, 1993 and ending at noon on October 30, 1998 unless sooner
terminated as herein provided. LESSOR and LESSEE now covenant and agree that the
following terms and conditions shall govern this lease during the term hereof
and for such further time as LESSEE shall hold the leased premises.
1. RENT. LESSEE shall pay to LESSOR base rent at the rate of one hundred
five thousand three hundred eight (105,308.00) U.S. dollars per year, payable in
advance in monthly installments of $8,775.66 on the first day in each calendar
month in advance, the first monthly payment to be made upon LESSEE's execution
of this lease, including payment in advance of appropriate fractions of a
monthly payment for any portion of a month at the commencement or end of said
lease term. All payments shall be made to LESSOR or agent at 200 West Cummings
Park, Woburn, Massachusetts 01801, or at such other place as LESSOR shall from
time to time in writing designate. If the "Cost of Living" has increased as
shown by the Consumer Price Index (Boston, Massachusetts, all items, all urban
consumers), U.S. Bureau of Labor Statistics, the amount of base rent due during
each calendar year of this lease and any extensions thereof shall be annually
adjusted in proportion to any increase in the Index. All such adjustments shall
take place with the rent due on January 1 of each year during the lease term.
The base month from which to determine the amount of each increase in the Index
shall be January 1994, which figure shall be compared with the figure for
November 1994, and each November thereafter to determine the percentage increase
(if any) in the base rent to be paid during the following calendar year. In the
event that the Consumer Price Index as presently computed is discontinued as a
measure of "Cost of Living" changes, any adjustment shall then be made on the
basis of a comparable index then in general use.
2. SECURITY DEPOSIT. LESSEE shall pay to LESSOR a security deposit in the
amount of seventeen thousand (17,000.00) dollars upon the execution of this
lease by LESSEE, which shall be held as security for LESSEE's performance as
herein provided and refunded to LESSEE without interest at the end of this lease
subject to LESSEE's satisfactory compliance with the conditions hereof. In the
event of any default or breach of this lease by LESSEE, LESSOR shall immediately
apply the security deposit first to any unamortized improvements completed for
LESSEE'S occupancy, then to offset any outstanding Invoice or other payment due
to LESSOR, with the balance applied to outstanding rent. If all or any portion
of the security deposit is applied to cure a default or breach during the term
of the lease, LESSEE shall be responsible for restoring said deposit forthwith
and failure to do so shall be considered a substantial default under the lease.
LESSEE's failure to remit the full security deposit or any portion thereof when
due shall also constitute a substantial lease default.
3. USE OF PREMISES. LESSEE shall use the leased premises only for the
purpose of executive and administratives, office research and testing laboratory
and laboratory research facility uses, including biotechnology and
pharmaceutical laboratory research facilities.
4. ADDITIONAL RENT. LESSEE shall pay to LESSOR as additional rent a
proportionate share (7.13%) (based on square footage leased by LESSEE as
compared with the total leaseable square footage of the building of which the
leased premises are a part) of any increase in the real estate taxes levied
against the land and building of which the leased premises are a part, whether
such increase is caused by an increase in the tax rate, or the assessment on the
property, or a change In the method of determining real estate taxes. LESSOR
agrees to make payments on account of any tax assessment or betterment assess
over the longest period permissible by law. In no event shall LESSEE be
responsible for payments on account of any estate, inheritance, or income taxes.
LESSEE shall make payment within thirty (30) days of written notice from LESSOR
that such increased taxes are payable, and any additional rent shall be prorated
should the lease terminate before the end of any tax year. The base from which
to determine the amount of any increase in taxes shall be the rate and the
assessment in effect as of July 1, 1993. In the event that the building of which
the leased premises are a part was not assessed as a completed building as of
the aforementioned date, then the base assessment shall be as of the first date
when the building is assessed as a completed structure.
LESSEE shall pay interest at an annual rate of twelve (12) percent, from
the date due, for any installment of rent or other payment which is not received
by LESSOR within fifteen days of any rent due date or of the mailing of any
invoice.
5. UTILITIES. LESSOR shall provide equipment per LESSOR's building
standard specifications to heat the leased premises in season. Equipment will be
provided per LESSOR's building standard specifications to cool all office areas
between May 1 and November 1. LESSEE shall pay all charges for heat and
electricity used on the leased premises. LESSEE shall pay LESSOR for the cost of
all water and sewer use as determined either by separate a water meter serving
the leased premises, or as a proportionate share of water and sewer charges for
the entire building of which the leased premises are a part if not separately
metered. No plumbing, construction or electrical work of any type shall be done
without LESSOR's prior written approval and the appropriate municipal permit,
which approval by LESSOR shall not be unreasonably withheld or delayed.
6. COMPLIANCE WITH LAWS. LESSEE acknowledges that no trade, occupation, or
activity shall be conducted in the leased premises or made thereof which may be
unlawful, improper, noisy or offensive, or contrary to any statute, regulation,
or ordinance in force in the city or town in which the leased premises are
situated. LESSEE shall keep all employees working in the leased premises covered
with Worker's Compensation Insurance and shall obtain any licenses and permits
necessary for LESSEE's occupancy except for Certificate of Occupancy for
LESSOR's Work as described herein which shall be LESSOR's responsibility. LESSEE
shall be responsible for causing the leased premises (except for LESSOR's
[illegible]) and any work conducted therein to be in full compliance with the
Occupational Safety and Health Act of 1970 and any amendments thereof.
7. FIRE INSURANCE. LESSEE shall not permit any use of the leased premises
which will adversely affect or make voidable any insurance on the property of
which the leased premises are a part, or on the contents of said property, or
which shall be contrary to any law or regulation from time to time established
by the Insurance Services Office (or successor), local Fire Department, LESSOR's
insurer, or any similar body. LESSEE shall on demand reimburse LESSOR, and all
other tenants, all extra insurance premiums caused by LESSEE's use of the leased
premises. LESSOR expressly agrees, however, that LESSEE shall not be obligated
to pay any such extra insurance premiums in connection with LESSEE's use of the
premises for the uses described in Section 3 of this lease.
8. MAINTENANCE OF PREMISES. LESSOR will be responsible for all structural
maintenance of the leased premises, including, without limitation, [illegible]
structural floor slabs and columns, and exterior windows, and for all
maintenance and repair of the common areas of the building, all space heating
(b. illegible)and cooling equipment, sprinklers, doors, locks, plumbing, and
electrical wiring, but specifically excluding damage caused by the careless,
malicious, willful, or negligent acts of LESSEE, chemical, water or corrosion
damage from any source,(c. illegible) and maintenance of any non "building
standard" leasehold improvements. LESSEE agrees to maintain at its expense all
other non-structural aspects of the leased premises in the same condition as
they are at the commencement of the term or as they may be put in during the
term of this lease, normal wear and tear and damage by fire or other casualty
only excepted, and whenever necessary, to replace light bulbs, plate glass and
other glass therein, acknowledging that the leased premises are now in good
order and the light bulbs and glass whole. LESSEE will properly control or vent
all solvents, degreasers, smoke, odors, etc. and shall not cause the area
surrounding the leased premises to be in anything other than a neat and clean
condition, depositing all waste in appropriate receptacles. LESSEE shall be
solely responsible for any damage to plumbing equipment, sanitary lines, or any
other portion of the building which results from the discharge or use of any
acid or corrosive substance by LESSEE. LESSEE shall not permit the leased
premises to be overloaded, damaged, stripped or defaced, nor suffer any waste,
and will not keep animals within the leased premises. If the leased premises
includes any wooden mezzanine type space, the floor capacity of such space is
suitable only for office use, light storage or assembly work. If the leased
premises are carpeted or partially carpeted, LESSEE will protect carpet with
plastic or masonite chair pads under any rolling chairs. Unless heat is provided
at LESSOR's expense, LESSEE shall maintain sufficient heat to prevent freezing
of pipes or other damage subject to LESSOR's obligations to maintain and repair
the heating system. Any increase in air conditioning equipment or electrical
capacity or any installation and/or maintenance of equipment which is
necessitated by some specific aspect of LESSEE's use of the leased premises
shall be at LESSEE's expense. All maintenance and repair provided by LESSOR
shall be during LESSOR's normal business hours.
9. ALTERATIONS. LESSEE shall not make structural alterations or additions
of any kind to the leased premises, but may make nonstructural alterations
provided LESSOR consents thereto in writing which consent shall not be
unreasonably withheld or delayed. All such allowed alterations shall be at
LESSEE's expense and shall conform with LESSOR's construction specifications. If
LESSOR performs any services or maintenance for LESSEE in connection with such
alterations or otherwise, any just invoice will be promptly paid. LESSEE shall
not permit any mechanics' liens, or similar liens, to remain upon the leased
premises in connection with work of any character performed or claimed to have
been performed at the direction of LESSEE and shall cause any such lien to be
released or removed within thirty (30) days of receiving notice of such lien
without cost to LESSOR. Any alterations or additions shall become part of the
leased premises and the property of LESSOR. Any alterations completed by LESSOR
shall be LESSOR's "building standard" unless noted otherwise. LESSOR shall have
the right at any time to change the arrangement of parking areas, stairs,
walkways or common areas at the building of which the leased are part.(c.
illegible)
10. ASSIGNMENT OR SUBLEASING. LESSEE shall not assign this lease or sublet
or allow any other firm or individual to occupy the whole or any part of the
leased premises without LESSOR's prior written consent which consent shall not
be unreasonably withheld or delayed. Notwithstanding such assignment or
subleasing, 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. LESSEE
shall pay LESSOR promptly for legal reasonable expenses incurred by LESSOR in
connection with any consent requested hereunder by LESSEE.
11. SUBORDINATION. This lease shall be subject and subordinate to any and
all mortgages and instruments in the nature of a mortgage now or at any time
hereafter, and LESSEE shall, when requested, promptly execute and deliver such
written instruments as shall be necessary to show the subordination of this
lease to said mortgages or other such instruments in the nature of a mortgage.
12. LESSOR'S ACCESS. LESSOR or agents of LESSOR may at reasonable times
upon reasonable advance notice and upon reasonable intervals enter to view the
leased premises, may remove any signs not approved and affixed as herein
provided, may make repairs and alterations as LESSOR should elect to do and
repairs which LESSEE is required but has failed to do, and may show the leased
premises to others, provided that in exercising any of such rights, LESSEE shall
use diligent efforts not to unreasonably interfere with LESSEE'S operations in
the leased premises.
13. SNOW REMOVAL. The landscaping of all grounds surrounding the leased
premises and the plowing of snow from all roadways, accessways and unobstructed
parking and loading areas shall be the sole responsibility of and at the sole
expense of LESSOR. The control of snow and ice on all steps serving the leased
premises and all other areas not readily accessible to plows shall be the sole
responsibility of LESSOR. Notwithstanding the foregoing, however, LESSEE shall
hold LESSOR and OWNER harmless from any and all claims by LESSEE's agents,
representatives, employees, callers or invitees for damage or personal injury
resulting in any way from snow or ice on any area serving the leased premises,
except for claims arising out of the LESSOR's negligence.
14. ACCESS AND PARKING. LESSEE shall have the right without additional
charge to use parking facilities provided for the leased premises in common with
others entitled to the use thereof. Said parking areas plus any stairs,
walkways, elevators or other common areas shall in all cases, be considered a
part of the leased premises to the extent that they are utilized by LESSEE, or
LESSEE's employees, agents, callers or invitees, except LESSEE shall not be
responsible for maintaining such areas. LESSEE will not obstruct in any manner
any portion of the building or the walkways or approaches to said building, and
will conform to all reasonable rules now or hereafter made by LESSOR for
parking, and for the care, use, or alteration of the building, its facilities
and approaches. LESSEE further warrants that LESSEE will not permit any employee
or visitor to violate this or any other covenant or obligation of LESSEE. No
vehicle shall be stored or left in any parking area for more than three
consecutive nights without LESSOR's prior written approval. From December 1
through March 30 annually, however, all unattended parking will be prohibited
between 7:00 PM and 7:00 AM except in those areas specifically designated for
assigned overnight parking. Unregistered or disabled vehicles, or storage
trailers of any type, may not be parked overnight at any time. LESSOR may tow,
at LESSEE'S sole risk and expense, any misparked vehicle belonging to LESSEE or
LESSEE's agents, employees, invitees or callers, at any time.
15. LESSEE'S LIABLITY AND INSURANCE Except for death, personal injuries or
property damage directly resulting from the negligence of LESSOR, or breach of
LESSOR's obligations hereunder to maintain such area, LESSEE shall be solely
responsible as between LESSOR and LESSEE for deaths or personal injuries to all
persons whomsoever occurring in or on the leased premises (but limited to
LESSEE's employees, agents, invitees or callers in extension thereof) from
whatever cause arising, and damage to property to whomsoever belonging arising
out of the use, control, condition or occupation of the leased premises by
LESSEE; and LESSEE agree to indemnify and save harmless LESSOR and OWNER from
any and all liability, including but not limited to expenses, damage, causes of
action, suits, claims or judgments caused by or in any way growing out of any
matters aforesaid. LESSEE will secure and carry at its own expense a
comprehensive general liability policy insuring LESSEE, LESSOR and OWNER against
any claims based on bodily injury (including death) or property damage arising
out of the condition of the leased premises or their use by LESSEE, such policy
to insure LESSEE, LESSOR and OWNER against any claim up to One Million
(1,000,000) Dollars in the case of any one accident involving bodily injury
(including death), and up to One Million (1,000,000) Dollars against any claim
for damage property. LESSOR and OWNER shall be included in each such policy as
additional insurers. LESSEE will file with LESSOR prior to occupancy,
certificates showing that such insurance is in force, and thereafter will file
renewal certificates prior to the expiration of any such policies. All such
insurance certificates shall provide that such policies shall not be cancelled
without (10) days prior written notice to each insured.
16. FIRE, CASUALTY, EMINENT DOMAIN. Should a substantial portion (20% or
more) of the leased premises, or of the property of which they are a part, be
substantially damaged by fire or other casualty, or be taken by eminent domain,
LESSOR may elect to terminate this lease. When such fire, casualty or taking
renders the leased premises substantially unsuitable for their intended use, a
just and proportionate abatement of rent shall be made, and LESSEE may elect to
terminate this lease if: (a) LESSOR fails to give written notice within thirty
(30) days of intention to restore the leased premises or (b) LESSOR fails to
restore the leased premises to a condition substantially suitable for their
intended use within ninety (90) days of said fire, casualty or taking. LESSOR
reserves all rights for damages or injury to the leased premises for any taking
by eminent domain, except for damage to LESSEE's property or equipment.
17. BROKERAGE. LESSEE warrants and represents to LESSOR that LESSEE has
dealt with no broker except Robert Richards of Fallen Hines & O'Connor or third
person with respect to this lease and LESSEE agrees to indemnify LESSOR against
any brokerage claims arising by virtue of this lease. LESSOR warrants and
represents to LESSEE that LESSOR has employed no exclusive broker or agent in
connection with the letting of the leased premises.
18. SIGNS. LESSOR authorizes, and LESSEE at LESSEE's expense agrees to
erect, one exterior metal letters sign on the front of the leased premises,
consistent in style, size, location, etc. with other signs of nearby tenants.
LESSOR also authorizes LESSEE, if desired, to display one sign on the office
entrance door consistent with similar signs of other tenants. LESSEE shall
obtain the written consent of LESSOR before erecting any other sign on the
leased premises, and shall obtain prior written approval as to size, wording,
and location of all authorized signs. LESSOR may remove and dispose of any sign
not approved, erected or displayed in conformance with this provision.
19. DEFAULT AND ACCELERATION OF RENT. In the event that: (a) LESSEE shall
default in the observance or performance of any of LESSEE's covenants,
agreements, or obligations hereunder, other than monetary payments as provided
below, and such default shall not be corrected within [Illegible] days after
written notice thereof, [Illegible]... then LESSOR shall have the right
thereafter, while such default continues and without demand or further notice,
to re-enter and take possession of the leased premises, to declare the term of
this lease ended, and to remove LESSEE's effects, without being guilty of any
manner of trespass, and without prejudice to any remedies which might be
otherwise used for arrears of rent or other default or breach of the lease. If
LESSEE shall default in the payment of the security deposit, rent, taxes, or any
substantial invoice for goods and/or services or other sum herein specified, and
such default shall continue for ten (10) days after written notice thereof, and,
because both parties agree that nonpayment of said sums when due is a
substantial breach of the lease, and, because the payment of rent in monthly
installments is for the sole benefit and convenience of LESSEE, then in addition
to the foregoing remedies, an amount equal to the lesser of one year's rent at
the then current rate or the amount of rent due through the remainder of the
then current lease term shall become immediately due and payable as liquidated
damages. LESSOR, without being under any obligation to do so and without thereby
waiving any default, may remedy same for the account and at the expense of
LESSEE, except for rental payments. If LESSOR pays or incurs any obligations for
the payment of money in connection therewith, such sums paid or obligations
incurred plus interest and costs, shall be paid to LESSOR by LESSEE as
additional rent. Any sums received by LESSOR from or on behalf of LESSEE at any
time shall be applied first to any unamortized improvements completed for
LESSEE's occupancy, then to offset any outstanding invoice or other payment due
to LESSOR, with the balance applied to outstanding rent. LESSEE agrees to pay
reasonable attorney's fees and/or administrative costs incurred by LESSOR in
enforcing any or all obligations of LESSEE under this lease at any time.
20. NOTICE. Any notice from LESSOR to LESSEE relating to the leased
premises or to the occupancy thereof shall be deemed duly served when served by
constable, or sent to the leased premises by certified mail, return receipt
requested, postage prepaid, addressed to LESSEE. Any notice from LESSEE to
LESSOR relating to the leased premises or to the occupancy thereof shall be
deemed duly served when served by constable, or delivered to LESSOR by certified
mail, return receipt requested, postage prepaid, addressed to LESSOR at 200 West
Cummings Park, Woburn, MA 01801 or at LESSOR's last designated address. No oral
notice or representation shall have any force or effect. Time is of the essence
in service of any notice.
21. OCCUPANCY. In the event that LESSEE takes possession of said leased
premises prior to the start of said term, LESSEE will perform and observe all of
LESSEE's covenants from the date upon which LESSEE takes possession except the
obligation for the payment of extra rent for any period of less than one month.
LESSEE shall not remove LESSEE's goods or property from the leased premises
other than in the ordinary and usual course of business, without having first
paid and satisfied LESSOR for all rent which may become due during the entire
term of this lease. In the event that LESSEE continues to occupy or control all
or any part of the leased premises after the agreed termination of this lease
without the written permission of LESSOR, then all other terms of this lease
shall continue to apply except that rent shall be due in full monthly
installments at a rate of one hundred seventy five (175) percent of that which
would otherwise be due under this lease, it being understood between the parties
that such extended occupancy is as a tenant at sufferance and is solely for the
benefit and convenience of LESSEE and as such has greater rental value. LESSEE's
control or occupancy of all or any part of the leased premises beyond noon on
the last day of any monthly rental period shall constitute LESSEE's occupancy
for an entire additional month, and increased rent as provided in this section
shall be due and payable immediately in advance. LESSOR's acceptance of any
payments from LESSEE during such extended occupancy shall not alter LESSEE's
status as a tenant at sufferance.
22. FIRE PREVENTION. LESSEE agrees to use every reasonable precaution
against fire and agrees to provide and maintain approved, labeled fire
extinguishers, emergency lighting equipment, and exit signs and complete any
other modifications within the leased premises as required or recommended by the
Insurance Services Office (or successor organization), OSHA, the local Fire
Department, or any similar body.
23. OUTSIDE AREA. No goods, equipment, or things of any type or
description shall be held or stored outside the leased premises at any time
without prior written consent from LESSOR. Any goods, equipment or things left
outside the leased premises without LESSOR's prior written consent shall be
deemed abandoned and may be removed at LESSEE's expense without notice by
LESSOR. A single two-yard capacity dumpster is hereby authorized for the
disposal of trash, provided that the location of said receptacle is approved by
LESSOR. LESSEE agrees to have said container provided and serviced at its
expense by whichever disposal firm may from time to time be designated by
LESSOR. If a dumpster is provided on a shared cost basis, LESSEE shall pay its
proportionate share of the costs associated with said dumpster.
24. ENVIRONMENT. LESSEE will so conduct and operate the leased premises as
not to interfere in any way with the use and enjoyment at other portions of the
same or neighboring buildings by others by reason of odors, smoke, smells,
noise, pets, accumulation of garbage or trash, vermin or other pests, or
otherwise, and will at its expense employ a professional pest control service if
necessary. LESSEE agrees to maintain efficient and effective devices for
preventing damage to heating equipment from solvents, degreasers, cutting oils,
propellants, etc. which may be present at the leased premises. Except in
connection with LESSEE's operations in the leased premises, provided that LESSEE
complies, no hazardous materials or wastes shall be stored, disposed of, or
allowed to remain at the leased premises at any time, and LESSEE shall be solely
responsible for any and all corrosion or other damage associated with the use,
storage and/or disposal of same by LESSEE.
25. RESPONSIBILITY. Except in the case of LESSOR's negligence, willful
misconduct or default in its obligations under this lease, neither LESSOR nor
OWNER shall be held liable to anyone for loss or damage caused in any way by the
use, leakage, seepage or escape of water from any source, or for the cessation
of any service rendered customarily to said premises or buildings, or agreed to
by the terms of this lease, due to any accident, the making of repairs,
alterations or improvements, labor difficulties, weather conditions, mechanical
breakdowns, trouble or scarcity in obtaining fuel, electricity, service or
supplies from the sources from which they are usually obtained for said
building, or any cause beyond LESSOR's immediate control.
26. SURRENDER. LESSEE shall at the termination of this lease remove all of
LESSEE's goods and effects from the teased premises. LESSEE shall deliver to
LESSOR the leased premises and all keys and locks thereto, all fixtures and
equipment connected therewith, and all alterations, addition and improvements
made to or upon the leased premises, including but not limited to any offices,
partitions, window blinds, floor coverings (including computer floors). plumbing
and plumbing fixtures, air conditioning equipment and ductwork of any type,
exhaust fans or heaters, water coolers. burglar alarms, telephone wiring, air or
gas distribution piping, compressors, overhead cranes, hoists, trolleys or
conveyors, counters shelving or signs attached to walls or floors, all
electrical work, including but not limited to lighting fixtures of any type,
wiring, conduit, EMT, transformers, distribution panels, bus ducts, raceways,
outlets and disconnects, and furnishings or equipment which have been bolted,
welded, nailed, screwed, glued or otherwise attached to any wall, floor or
ceiling, or which have been directly wired to any portion of the electrical
system or which have been plumbed to the water supply, drainage or venting
systems serving the leased premises, and LESSEE shall deliver the leased
premises sanitized from any chemicals or other contaminants, and broom clean and
in the same condition as they were at the commencement of this lease or any
prior lease between the parties for the leased premises, or as they were
modified during said term, reasonable wear and tear and damage by fire or other
casualty only excepted. In the event of LESSEE's failure to remove any of
LESSEE's property from the leased premises upon termination of the lease, LESSOR
is hereby authorized, without liability to LESSEE for loss or damage thereto,
and at the sole risk of LESSEE, to remove and store any such property at
LESSEE's expense, or to retain same under LESSOR's control, or to sell at public
or private sale, upon notice to Lessee, any or all of the property not so
removed and to apply the net proceeds of such sale to the payment of any sum due
hereunder, or to destroy such abandoned property. In no case shall the leased
premises be deemed surrendered to LESSOR until the termination date provided
herein or such other date as may be specified in a written agreement between the
parties, notwithstanding the delivery of any keys to LESSOR.
27. GENERAL. (a) The invalidity of any provision of this lease [illegible]
provision hereof. (b) The obligations of this lease shall run with the land, and
this lease shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, except that LESSOR and OWNER shall
be liable only for obligations occurring while lessor, owner, or master lessee
of the premises. (c) Any action or proceeding arising out of the subject matter
of this lease shall be brought by LESSEE within two years after the cause of
action has occurred except for any third party actions by LESSEE against LESSOR
and only in a court of the Commonwealth of Massachusetts. (d) If LESSOR is
acting under or as agent for any trust or corporation, the obligations of LESSOR
shall be binding upon the trust or corporation, but not upon any trustee,
officer, director, shareholder, or beneficiary of the trust or corporation
individually. (e) If LESSOR is not the owner (OWNER) of the leased premises,
LESSOR represents that said OWNER as identified below has agreed to be bound by
the terms of this lease. (f) This lease is made and delivered in the
Commonwealth of Massachusetts, and shall be interpreted, construed, and enforced
in accordance with the laws thereof. (g) This lease was the result of
negotiations between parties of equal bargaining strength, and when executed by
both parties shall constitute the entire agreement between said parties. No
other oral or written representation shall have any effect hereon, and this
agreement may not be altered, extended or amended except by written agreement
attached hereto or as otherwise provided herein. (h) Notwithstanding any other
statements herein, LESSOR makes no warranty, express or implied, concerning the
suitability of the leased premises for LESSEE's intended use. (i) LESSEE agrees
that if LESSOR does not deliver possession of the leased premises as herein
provided for any reason, LESSOR shall not be liable for any damages to LESSEE
for such failure, but LESSOR agrees to use due diligence to obtain possession
for LESSEE at the earliest possible date, and a proportionate abatement of rent
for such time as LESSEE may be deprived of possession of said leased premises
shall be LESSEE's sole remedy. (j) Neither the submission of this lease form,
nor the prospective acceptance of the security deposit and/or rent shall
constitute a reservation of or option for the leased premises, or an offer to
lease, it being expressly understood and agreed that this lease shall not bind
either party in any manner whatsoever until it has been executed by both
parties. (k) LESSEE shall not be entitled to exercise any option contained
herein if LESSEE is in default of any terms or conditions hereof. (l) The
headings in this lease are for convenience only and shall not be considered part
of the terms hereof. (m) No endorsement by LESSEE on any check shall bind LESSOR
in any way.
28. SECURITY AGREEMENT.
This Paragraph Does Not Apply
29. WAIVERS, ETC. No consent or waiver, express or implied, by LESSOR, to
or of any breach of any covenant, condition or duty of LESSEE shall be construed
as a consent or waiver to or of any other breach of the same or any other
covenant, condition or duty. If LESSEE is several persons, several corporations
or a partnership, LESSEE's obligations are joint or partnership and also
several. Unless repugnant to the context, "LESSOR" and "LESSEE" mean the person
or persons, natural or corporate, named above as LESSOR and as LESSEE
respectively, and their respective heirs, executors, administrators, successors
and assigns.
30. AUTOMATIC FIVE-YEAR EXTENSIONS.
This Paragraph Does Not Apply
31. ADDITIONAL PROVISIONS. (Continued on attached rider if necessary.)
- See Attached Rider -
IN WITNESS WHEREOF, LESSOR AND LESSEE have hereunto set their hands and common
seals and intend to be legally bound hereby this 2nd day of November, 1993.
LESSOR: CUMMINGS PROPERTIES MANAGEMENT, INC. LESSEE: SCRIPTECH
PHARMACEUTICALS, INC.
as agent for BEAUTYREST PROPERTY, INC. & WRB, INC.
By: /S/ [ILLEGIBLE] By: /s/ [ILLEGIBLE]
-------------------- -------------------
President President
GUARANTY
This Paragraph Does Not Apply
CUMMINGS PROPERTIES MANAGEMENT, INC.
STANDARD FORM
RIDER TO LEASE
The following additional provisions are incorporated into and made a part of the
attached lease:
A. LESSOR, if requested to do so by LESSEE, and at LESSEE's sole expense,
shall complete up to $624,870.00 in alterations necessitated by LESSEE's
use of the leased premises according to a plan and at a cost to be
mutually agreed upon by both parties. LESSEE shall pay LESSOR $208,000.00
of the agreed cost prior to the commencement of said work. At LESSEE's
request, the balance of the cost of said alterations up to the agreed
maximum may be incorporated into the lease by separate amendment to be
attached hereto, amortized and then paid for by LESSEE in the same manner
as base rent which shall otherwise be due.
B. Notwithstanding the provisions of Section 1 hereinabove, LESSEE shall pay
to LESSOR upon LESSEE's execution of this lease the sum of $105,308.00 as
pre-paid rent to be applied in equal monthly installments of $8,775.67
each to LESSEE's monthly rental payments during the first year of the
lease term. In addition, LESSEE shall pay any "Cost of Living" adjustment
on the base rent set forth in Section 1 for the period January 1, 1994
through October 31, 1994 within ten (10) days following notice from LESSOR
of any such adjustment.
C. Notwithstanding the commencement date herein, the parties acknowledge that
the leased premises will not be available for LESSEE's occupancy until
after the commencement date. Notwithstanding the delay in delivery of the
leased premises, LESSEE's obligation to pay rent in full accordance with
Section 1 shall commence November 1, 1993.
D. * Provided LESSEE is not then in default of this lease or in arrears of
any rent or invoice payment, LESSEE shall have the right to extend this
lease, including all terms, conditions, escalations, etc., for one
additional period of five (5) years ("the extended lease term") by serving
LESSOR with written notice of its desire to so extend the lease. The time
for serving such written notice shall be not more than twelve (12) months
or less than six (6) months prior to the expiration of the initial lease
term. Time is of the essence.
E. Rent during the extended lease term shall be paid in full accordance with
Section 1, including all "Cost of Living" adjustments.
F. With respect to Section 8, LESSOR shall perform its maintenance and
repairs with duly qualified contractors, which will be deemed to include
LESSOR's employees.
G. With respect to Section 9, if the cost of any non-structural alteration
does not, in an individual situation, exceed $10,000.00, LESSOR's consent
shall not be required provided said alteration conforms with LESSOR's
construction specifications.
H. Notwithstanding the provisions of Section 10, LESSEE may, without the
requirement of obtaining LESSOR's consent but upon written notice to
LESSOR, assign this lease or sublease all or any portion of the leased
premises to any entity which is the parent of LESSEE, a majority-owned
subsidiary of LESSEE, an entity under common control with LESSEE or any
entity with which LESSEE may merge or consolidate or to which LESSEE may
sell all or substantially all of its assets as a going concern, including,
without limitation, any joint venture of which LESSEE is a partner.
I. LESSOR represents that the leased premises are not presently encumbered by
any mortgage of record.
J. * LESSEE's agreement to subordinate this lease to any and all mortgages
and/or other instruments in the nature of a mortgage, now or at any time
hereafter, is conditional upon the mortgagee's agreement that LESSEE's
possession will not thereafter be disturbed so long as LESSEE is not in
default in the payment of rent or other covenants or obligations thereof.
K. Notwithstanding any terms or provisions of this lease to the contrary, in
the event the leased premises shall lack any services (including repairs)
required to be provided by LESSOR hereunder for any cause within LESSOR's
reasonable control and such lack of service shall continue for seven (7)
consecutive days, and LESSEE shall be unable to use any material portion
of the leased premises on account thereof, thereafter there shall be a
proportionate abatement of the rent and additional rent hereunder,
according to the extent of such loss of use, until such service shall
resume.
L. If LESSOR elects to accelerate the rent on account of a substantial breach
of the lease and full liquidated damages are paid by LESSEE pursuant to
Section 19 of the lease, then the lease will terminate without further
recourse by the parties for any further rent due.
M.(1) During the initial term of this lease (only), LESSEE shall have a
continuing right (the "Option Right") to lease space contiguous to the
leased premises (the "Contiguous Space") (it being agreed that the
Contiguous Space shall include all space contiguous to the leased premises
on the same floor as the leased premises and all space contiguous to the
leased premises on the floors immediately above and immediately below the
leased premises, all as shown on the attached plan marked as Exhibit A) in
the building of which the leased premises are a part as such space becomes
available for leasing directly from LESSOR, subject to the rights of
lessees of such space to extend or otherwise renegotiate their leases.
LESSOR shall notify LESSEE of the availability of any Contiguous Space
within a reasonable time after the same becomes available for leasing
directly from LESSOR. LESSEE shall have seven (7) days from receipt of
each notice from LESSOR regarding the availability of such space to
execute an amendment to this lease in order to add such additional space
to the leased premises hereunder at the base rent set forth below. LESSEE
may extend said seven-day period for an additional seven days (only) by
serving LESSOR with written notice to that effect prior to the end of the
initial seven-day period.
(2) If, after receiving notice of the availability of such space from LESSOR,
LESSEE does not elect to lease such space and LESSOR does not lease such
space to others within the nine (9) month period after LESSOR's notice to
LESSEE that such space is available for leasing, then LESSOR shall
renotify LESSEE of the availability of such space upon the expiration of
such nine (9) month period whereupon LESSEE's rights to lease such space
set forth above shall be revived, it being agreed that such obligation to
notify LESSEE of the availability of such space shall be renewed every
nine (9) month period thereafter unless and until such space is leased to
others. Notwithstanding the foregoing, for the first nine (9) month period
of the lease term from November 1, 1993 through July 31, 1994, the Option
Right shall not apply to any portion of the Contiguous Space that is both
presently vacant and
available for leasing directly by LESSOR to others until after such space
is next leased to others.
(3) If at any time during the initial lease term, LESSEE elects to lease any
portion of the Contiguous Space, LESSEE shall be entitled to lease it at
the following base rent: (i) if the space is unimproved, LESSEE shall have
the right to lease the Contiguous Space at the same base rent set forth
for the leased premises in Section 1 of this lease; or (ii) if the space
is finished (i.e., it has been improved with tenant improvements), the
base rent shall be an average of the base rent agreed to by LESSOR in the
last three (3) lease transactions entered into by LESSOR immediately prior
to LESSOR's then current notice to LESSEE of the availability of the
Contiguous Space, it being agreed, however, that the lease transactions
that are used to calculate such average must be for space that is
similarly improved to that of the finished Contiguous Space then available
for leasing by LESSEE.
N. Commencing November 1, 1993, and continuing during the initial lease term
(only), in consideration for the Option Right, LESSEE shall be obligated
to pay to LESSOR on an annual basis a fee (the "Option Fee") of $10,000,
payable quarterly in advance in equal installments on the first day of
each November, February, May and August, except that the first quarterly
installment shall be due upon LESSEE's execution of this lease. LESSEE's
failure to pay any installment within ten (10) days of its due date
automatically void the Option Right without the requirement of any notice
from LESSOR.
0. Notwithstanding the foregoing provisions of Paragraph M above, LESSEE
shall have the right, exercisable at any time during the initial lease
term, to revoke the Option Right by written notice (the "Revocation
Notice") to LESSOR, whereupon as of the end of the next full paid quarter
following LESSOR's receipt of the Revocation Notice, LESSEE shall no
longer have the Option Right and shall no longer have any obligation to
pay the Option Fee.
P. Nothwithstanding the provisions of Section 26, LESSEE may remove the
following items supplied by LESSEE prior to the termination date of the
lease provided LESSEE has satisfactorily complied with all other
conditions of this lease, is not in default of the lease or in arrears of
any rent or invoice payments, repairs any and all damage resulting from
such removal and otherwise restores the leased premises to its condition
prior to installation of said items:
(1) Hoods, including cabinets and integral countertop below;
(2) Acid Neutralization System (entire system only);
(3) Cold Room
(4) Vacuum Pump
(5) Air Compressor
(6) DI Water System (entire system only)
(7) Emergency Generator (including transfer switch)
Q. The leased premises consist of 14,440 square feet (including 9.6% common
area) at Suite 3000 and 1,000 square feet including 9.6% common area) at
Suite G600.
LESSOR: LESSEE:
CUMMINGS PROPERTIES MANAGEMENT, INC. SCRIPTECH PHARMACEUTICALS, INC.
as agent for BEAUTYREST PROPERTY, INC.
& WRB, INC.
By: /s/ [Illegible] By: /s/ Barry Weinberg
----------------------------- ----------------------------
President Barry Weinberg, President
Date: 11/2/93
---------------------------
CUMMINGS PROPERTIES MANAGEMENT, INC. 893481-FDK
STANDARD FORM
AMENDMENT TO LEASE #1
In connection with a lease currently in effect between the parties at 200
Boston Avenue, Suites 3000 & G600, Medford, Massachusetts, commencing on
November 1, 1993 and terminating October 30, 1998, and in consideration of
the mutual benefits to be derived herefrom, Cummings Properties
Management, Inc., LESSOR, and ScripTech Pharmaceuticals, Inc., LESSEE,
hereby agree to amend said lease as follows:
1. LESSOR, at LESSEE's sole cost and expense, shall complete alterations and
improvements within the leased premises in accordance with the mutually
agreed upon plan and specifications attached hereto ("LESSOR's work"). The
total cost of LESSOR's work as set forth therein shall be $624,870.00.
LESSEE shall pay $208,000.00 of the total cost ("the Initial Work
Payment") upon LESSEE's execution of this Amendment, and LESSOR shall
amortize the balance on a straight line basis (including interest) as
additional rent as provided below. All plans for LESSOR's work shall be
prepared at LESSOR's sole cost and expense.
2. If any agreed changes or additions to the scope of work requested by
LESSEE result in increased cost, LESSEE shall pay the cost of said changes
or additions immediately upon substantial completion of LESSOR's work.
Upon receipt of LESSEE's request for said changes or additions, LESSOR
shall promptly notify LESSEE of LESSOR's estimate of the cost (if any) to
make such change or additions.
3. LESSOR shall perform LESSOR's work in a good and workmanlike manner.
LESSOR shall deliver the leased premises to LESSEE in compliance with all
laws including, without limitation, the Americans With Disabilities Act,
including all regulations promulgated pursuant thereto.
4. Notwithstanding anything to the contrary contained in the lease, LESSEE's
obligation to reimburse LESSOR for the $416,870.00 advanced by LESSOR
shall survive the termination of the lease for any cause whatsoever, and
shall be in addition to any remedies available to LESSOR under the lease
or any other damages due LESSOR in the event of any default by LESSEE
under the lease. Notwithstanding anything to the contrary contained in
this Amendment, LESSEE shall have the right to prepay such $416,870.00
amount without any penalty or premium, either in total or in part, at any
time during the lease term.
5. During the first year of the lease term, in addition to the pre-paid rent
provided for in Paragraph B of the Rider to Lease, LESSEE shall pay to
LESSOR $9,904.80 per month as additional rent in accordance with Section 1
for the amortized cost of improvements as provided herein. The first such
monthly payment shall be due upon LESSEE's execution of this lease
amendment.
6. LESSOR shall use reasonable efforts to substantially complete, and to
deliver to LESSEE possession of, the office portion of the leased premises
within four (4) weeks following the later of (a) November 1, 1993 and (b)
full execution of this Amendment, approval of final plans and
specifications and full payment of the amounts due under Paragraph B of
the Rider to Lease and Paragraph 1 above, and the laboratory portion
within an additional sixteen (16) weeks thereafter. LESSEE my have access
to the office and laboratory portions of the leased premises prior to
their respective completion in order to ready them for LESSEE's occupancy,
provided that LESSEE does not in any way interfere with or delay LESSOR's
work. If for any reason other than delay requested or caused by LESSEE,
LESSOR's work is not substantially completed within the aforesaid twenty
(20) week period, then LESSEE shall be entitled to receive from LESSOR a
rent abatement in an amount equal to one day's rent (less that portion of
the rent added hereinbelow for the amortized improvements) for each day
beyond such twenty week period that LESSOR's substantial completion of
LESSOR's work is delayed.
7. Upon substantial completion of both the office portion and the laboratory
portion of LESSOR's work, LESSOR and LESSEE shall compile a separate
punchlist of incomplete items (which are minor in nature) for each
portion, and LESSOR shall use reasonable efforts to complete such items
within thirty (30) days thereafter for each portion.
8. If LESSOR's work is not completed and a certificate of occupancy for the
entire leased premises is not obtained by LESSOR within one (1) year after
the commencement date of the lease, LESSEE shall have the right to
terminate the lease without recourse to the parties, except that upon such
termination LESSOR shall return to LESSEE (a) any unused portion of the
Initial Work Payment and (b) the balance, if any, of pre-paid rent (paid
pursuant to Paragraph B of the Rider to Lease) remaining after deduction
of any accrued rent and any costs incurred by LESSOR for LESSOR's work in
excess of the Initial Work Payment.
All other terms, conditions and covenants of the present lease shall
continue to apply except that adjusted base rent during the initial
five-year term of the lease shall be increased by $118,857.60 annually,
from a total of $105,308.00 to a new annual total of $224,165.60, or
$18,680.47 per month. Annual base rent for purposes of computing any
future "Cost of Living" escalations thereon shall be $105,308.00. This
amendment shall be effective immediately and shall continue through the
balance of the lease and any extensions thereof unless further modified by
written amendment(s).
In Witness Whereof, LESSOR and LESSEE have hereunto set their hands
and common seals this 2nd day of November 1993.
LESSOR: LESSEE:
CUMMINGS PROPERTIES MANAGEMENT, INC. SCRIPTECH PHARMACEUTICALS, INC.
as agent for BEAUTYREST PROPERTY, INC.
& WRB, INC.
By: /s/ [Illegible] By: /s/ Barry Weinberg
----------------------------- ----------------------------
Barry Weinberg, President