DATE OFLEASE EXECUTION:____________________, 2005

 

ARTICLE I

REFERENCE DATA

 

1.1    SUBJECTS REFERRED TO:

 

 

 

 

1.2    EXHIBITS.

 

 

	EXHIBIT A	Description of Lot
	EXHIBIT B	Plan showing Premises.
	EXHIBIT C	Landlord's Work
	EXHIBIT D	Landlord's Services
	EXHIBIT E	Rules and Regulations

 

 

 

 

 

ARTICLE II

PREMISES AND TERM

 

2.1    DESCRIPTION OF PREMISES.

 

 

 

 

 

ARTICLE III

CONSTRUCTION

 

3.1    TERM COMMENCEMENT DATE.

 

 

3.2    DELIVERY OF PREMISES.

 

 

 

 

3.3    PREPARATION OF PREMISES; PERFORMANCE OF LANDLORD WORK.

 

 

 

3.4    GENERAL PROVISIONS APPLICABLE TO CONSTRUCTION.

 

 

3.5    ALTERATIONS AND ADDITIONS.

 

 

3.6    REPRESENTATIVES.

 

Each party authorizes the other to rely in connection with their respective rights and obligations under this Article III upon approval and other actions on the party's behalf by Landlord's Representative in the case of Landlord or Tenant's Representative in the case of Tenant or by any person designated in substitution or addition by notice to the other party.

 

ARTICLE IV

RENT

 

4.1    ANNUAL RENT.

 

Tenant agrees to pay rent to Landlord without any offset or reduction whatsoever (except as made in accordance with the express provisions of this Lease), the Annual Rent in equal monthly installments in advance on the first day of each calendar month included in the Term after the Term Commencement Date; and for any portion of a calendar month at the beginning or end of the Term, at the proportionate rate payable for such portion, in advance.

 

4.2    ANNUAL OPERATING COST ESCALATION.

 

In addition to Annual Rent, Tenant shall pay to Landlord as additional rent, Tenant's Proportionate Share of Annual Operating Costs (as hereinafter defined) which is in excess of Base Annual Operating Costs ("Tenant's Escalation Payment"). Tenant's Proportionate Share of Annual Operating Costs shall be determined by multiplying Annual Operating Costs by a fraction, the numerator of which is the Rentable Floor Area of the Premises and the denominator of which is the Total Rentable Floor Area of the Building (which is equal to one and seven-tenths percent (1.7%)). In the event that the Building is not fully occupied, such Annual Operating Costs shall be adjusted to reflect the costs which would be incurred if the Building were 95% occupied.

 

 

Annual Operating Costs shall mean the actual expenses paid or incurred by Landlord in the operation, maintenance and management of the Building and Lot and all real estate taxes and assessments, general or special, ordinary or extraordinary, foreseen or unforeseen, imposed upon the Building and Lot and any future improvement of whatever kind thereto or thereon. Annual Operating Costs shall include without limitation:

 

 

 

In the event Landlord shall make a capital expenditure for Essential Capital Improvements, as hereinafter defined, during any year, the annual amortization of such expenditure (determined by dividing the amount of the expenditure by the useful life of the improvement, as determined by Landlord), together with interest at the greater of the Prime Rate prevailing plus 2% or Landlord's actual borrowing rate for such Essential Capital Improvements shall be deemed part of Annual Operating Costs for each year of such useful life. As used herein, "Essential Capital Improvement" means any of the following:

 

 

 

4.3    ESTIMATED ANNUAL OPERATING EXPENSE ESCALATION PAYMENT.

 

If, with respect to any fiscal year or fraction thereof during the Term, commencing on January 1, 2006, Landlord estimates that Tenant will be obligated to pay Tenant's Escalation Payment, then Tenant shall pay, as additional rent, on the first day of each month of such fiscal year and each ensuing fiscal year thereafter, an estimate equal to 1/12th of Tenant's Escalation Payment for the respective fiscal year ("Estimated Monthly Operating Cost Payments"), with an appropriate additional payment or refund to be made within 30 days after Landlord's Statement (as hereafter defined) is delivered to Tenant. Landlord may adjust such Estimated Monthly Operating Cost Payment from time to time and at any time during a fiscal year, and Tenant shall pay, as additional rent, on the first day of each month following receipt of Landlord's notice thereof, the adjusted Estimated Monthly Operating Cost Payment.

 

As soon as practicable after the end of each fiscal year ending during the Tenn and as soon as practicable after lease teunination, Landlord shall render a statement ("Landlord's Statement") in reasonable detail and according to usual accounting practices certified by Landlord and showing for the preceding fiscal year or fraction thereof, as the case may be, Landlord's Annual Operating Costs, Tenant's Proportionate Share thereof, and Tenant's Escalation Payment, as defined above. By notice given to Landlord no later than one hundred twenty (120) days after Landlord's delivery of Landlord's Statement to Tenant, Tenant shall have the right to audit Landlord's books and reports relating thereto, at Tenant's expense, during normal business hours, such right exercisable by notice to Landlord given within such one hundred twenty (120) day period. To the extent such audit discloses errors in Landlord's Statement an appropriate adjustment shall be made and if such adjustment exceeds 5% of the charges payable under this Lease for the period in question, the Landlord shall pay for the reasonable cost of the audit.

 

4.4    ELECTRICITY.

 

Tenant will be billed for electricity for Tenant's lights and outlet consumption on a monthly basis based on an annual estimate of $1.25 per rentable square foot (which amount may be adjusted by Landlord, from time to time, to reflect increases in the actual out-of-pocket electrical costs to the Building). Should the actual average expense to Landlord per square foot for Tenant's electricity be different, an additional charge or a credit will be made within sixty (60) days following the end of each year's occupancy to be paid with or credited against the next monthly charge for Tenant's electricity. Notwithstanding the foregoing, Landlord reserves the right to assess Tenant's charge for electricity based on an engineer's survey of Tenant's electrical usage conducted from time to time or on the sub-metering of all or part of the Premises. Such charges for Tenant's electricity shall be paid by Tenant as additional rent at the same time and in the same manner as payments of Annual Rent.

 

 

Tenant covenants and agrees that its use of electric current shall not exceed 4.0 watts per square foot of usable floor area and that its total connected lighting load will not exceed the maximum load from time to time permitted by applicable governmental regulations. In the event Tenant introduces into the Premises personnel or equipment which overloads the capacity of the Building's electrical system or in any other way interferes with the system's ability to perform properly, supplementary systems including check meters may, if and as needed, at Landlord's option, be provided by Landlord, at Tenant's expense. Landlord shall not in any way be liable or responsible to Tenant for any loss or damage or expense which Tenant may sustain or incur if, during the Term of this Lease, either the quantity or character of electric current is changed or electric current is no longer available or suitable for Tenant's requirements due to a factor or cause beyond Landlord's control.

 

Landlord reserves the exclusive right to provide electric and other utility service to the Building. Tenant may request permission from Landlord (which consent may be withheld in its sole discretion) to arrange electric and other utility service exclusively serving the Premises. Should such permission be granted, however, such service shall be installed only in such locations and in such manner as shall be specifically approved by Landlord in its sole discretion, Tenant shall be responsible for restoration of any damage caused by such installation and Tenant shall be responsible for removal of such installations at the termination of this Lease. Landlord may limit Tenant's choice of electrical or other utility providers in order to avoid proliferation of such services to the Building or for any other reason. In no event, however, shall Landlord be responsible for any damages or inconvenience caused by interruption in or poor quality of electricity or other utility services provided to the Building or the Premises unless such damages are caused by the negligence of Landlord, its agents or employees.

 

4.5    CHANGE OF FISCAL YEAR.

 

Landlord shall have the right from time to time to change the periods of accounting under Section 4.2 to any annual period other than a calendar year, and upon any such change all items referred to in Section 4.2 shall be appropriately apportioned. In all Landlord's Statements rendered under Section 4.2, amounts for periods partially within and partially without the accounting periods shall be appropriately apportioned, and any items which are not determinable at the time of a Landlord's Statement shall be included therein on the basis of Landlord's estimate, and with respect thereto Landlord shall render promptly after determination a supplemental Landlord's Statement, and appropriate adjustment shall be made according thereto. All Landlord's Statements shall be prepared on an accrual basis of accounting.

 

4.6    PARKING CHARGES.

 

Tenant shall pay all Parking Charges as additional rent at the same time and in the same manner as Annual Rent.

 

 

4.7    PAYMENTS.

 

All payments of Annual Rent and additional rent shall be made to Managing Agent, or to such other person as Landlord may from time to time designate. If any installment of Annual Base Rent or additional rent or payments due on account of leasehold improvements is paid more than 10•days after the due date thereof, at Landlord's election, it shall bear interest at a rate equal to the average prime commercial rate from time to time established by the three largest national banks in Boston, Massachusetts plus 4% per annum from such due date, which interest shall be immediately due and payable as further additional rent.

 

ARTICLE V

LANDLORD'S COVENANTS

 

 

5.2    INTERRUPTIONS.

 

Landlord shall not be liable to Tenant for any compensation or reduction of rent by reason of inconvenience or annoyance, injury, death or for loss of business arising from power or other utility losses or shortages, air pollution or contamination, or from the necessity of Landlord's entering the Premises for any of the purposes in this Lease authorized, or for repairing the Premises or any portion of the Building or the Lot or for any interruption or termination (by reason of any cause reasonably beyond Landlord's control, including without limitation, loss of any applicable license or government approval) of the food service provided by Landlord pursuant to Section 5.1.5. In case Landlord is prevented or delayed from making any repairs, alterations or improvements, or furnishing any service or performing any other covenant or duty to be performed on Landlord's part, by reason of any cause beyond Landlord's reasonable control, Landlord shall not be liable to Tenant therefor, nor, except as expressly otherwise provided in Article VII, shall Tenant be entitled to any abatement or reduction of rent by reason thereof, nor shall the same give rise to a claim in Tenant's favor that such failure constitutes actual or constructive total or partial, eviction from the Premises but Landlord shall use reasonable and diligent efforts to correct the condition.

 

Landlord reserves the right to stop any service or utility system when necessary by reason of accident or emergency or until necessary repairs have been completed. Except in case of emergency repairs, Landlord will give Tenant reasonable advance notice of any contemplated stoppage and, in any event, will use reasonable efforts to avoid unnecessary inconvenience to Tenant by reason thereof.

 

 

Landlord also reserves the right to institute such policies, programs and measures as may be necessary, required or expedient for the conservation or preservation of energy or energy services or as may be necessary or required to comply with applicable codes, rules, regulations or standards.

 

ARTICLE VI

TENANT'S COVENANTS

 

6.1    TENANT'S COVENANTS DURING THE TERM.

 

Tenant covenants during the Term and such further time as Tenant occupies any part of the Premises:

 

 

 

As used herein, "Hazardous Materials" shall mean and include, but shall not be limited to, any petroleum product and all hazardous or toxic substances or wastes including any asbestos-containing materials, waste oils, solvents and chlorinated oils, polychlorinated biphenyls (PCBs), or substances which are included under or regulated by any federal, state or local law, rule or regulation (whether now existing or hereafter enacted or promulgated, as they may be amended from time to time) pertaining to the environment, contamination or clean-up (all such laws, rules and regulations being referred to collectively as the "Environmental Laws"), including, without limitation, the Comprehensive Environmental Response Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601 and regulations adopted pursuant to said Act. Landlord represents to Tenant that it has no actual knowledge of Hazardous Materials in the Building other than cleaning and other materials and supplies customary and incidental to the use of office premises in ordinary amounts.

 

 

 

Notwithstanding the foregoing, Tenant may assign this Lease to an entity owned or controlled by, under common ownership or control with or owning or controlling Tenant or an entity with which Tenant may merge or consolidate or to which Tenant may sell all or substantially all of its assets as a going concern (in each case, an "Affiliate"), without Landlord's consent, but upon twenty (20) days prior notice, accompanied by information which reasonably demonstrates that the proposed assignee is an Affiliate, provided such assignee provides an Assumption Agreement to Landlord of the prospective obligations under this Lease. Notwithstanding the assignment to an Affiliate, Tenant shall not be released from its obligations hereunder unless specifically agreed by Landlord in writing.

 

 

Throughout the term of this Lease, Landlord shall maintain: (1) comprehensive general liability insurance covering common areas and the portion of the Building not leased to a tenant with a combined single limit for bodily injury and property damage in commercially reasonable amounts, (2) "all risk" insurance covering the Building, and all machinery, equipment and other personal property used in connection with the Building (but not leasehold improvements or the property of any tenants of the Building) in an amount not less than the then current replacement value of the Building, and (3) boiler and machinery coverage.

 

 

ARTICLE VII

DAMAGE AND DESTRUCTION; CONDEMNATION

 

7.1    FIRE OR OTHER CASUALTY.

 

 

 

If Landlord has not elected to terminate this Lease and if there shall be damage to the Premises of a character as cannot (in the judgment of Landlord's engineer) reasonably be expected to be repaired within nine (9) months from the date of casualty, then Tenant may, at its option, teminate this Lease provided that Tenant's election shall be made by notice to Landlord within thirty (30) days of Landlord's delivery of the estimate of Landlord's engineer as to the time period required for restoration. If Landlord fails to complete such restoration with such nine (9) month period, then Tenant, at its option, may terminate this Lease provided that Tenant's election shall be made by notice to Landlord within thirty (30) days following the expiration of such nine (9) month period.

 

 

7.2    EMINENT DOMAIN.

 

 

ARTICLE VIII

RIGHTS OF MORTGAGEE

 

8.1    PRIORITY OF LEASE.

 

 

8.2    RIGHTS OF MORTGAGE HOLDERS; LIMITATION OF MORTGAGEE'S LIABILITY.

 

The word "mortgage" as used herein includes mortgages, deeds of trust or other similar instruments evidencing other voluntary liens or encumbrances, and modifications, consolidations, extensions, renewals, replacements and substitutes thereof. The word "holder" shall mean a mortgagee, and any subsequent holder or holders of a mortgage. Until the holder of a mortgage shall enter and take possession of the Premises for the purpose of foreclosure, such holder shall have only such rights of Landlord as are necessary to preserve the integrity of this Lease as security. Upon entry and taking possession of the Premises for the purpose of foreclosure, such holder shall have all the rights of Landlord. Notwithstanding any other provision of this Lease to the contrary, including without limitation Section 10.4, no such holder of a mortgage shall be liable, either as mortgagee or as assignee, to perform, or be liable in damages for failure to perform any of the obligations of Landlord unless and until such holder shall enter and take possession of the Premises for the purpose of foreclosure, and such holder shall not in any event be liable to perform or for failure to perform the obligations of Landlord under Section 3.2. Upon entry for the purpose of foreclosure, such holder shall be liable to perform all of the obligations of Landlord (except for the obligations under Section 3.2), subject to and with the benefit of the provisions of Section 10.4, provided that a discontinuance of any foreclosure proceeding shall be deemed a conveyance under said provisions to the owner of the equity of the Premises.

 

 

8.3    INTENTIONALLY OMITTED.

 

8.4    NO PREPAYMENT OR MODIFICATION, ETC.

 

Tenant shall not pay Annual Rent, additional rent, or any other charge more than thirty (30) days prior to the due date thereof. No prepayment of Annual Rent, additional rent or other charge, no assignment of this Lease and no agreement to modify so as to reduce the rent, change the Term, or otherwise materially change the rights of Landlord under this Lease, or to relieve Tenant of any obligations or liability under this Lease, shall be valid unless consented to in writing by Landlord's mortgagees of record, if any.

 

8.5    NO RELEASE OR TERMINATION.

 

No act or failure to act on the part of Landlord which would entitle Tenant under the terms of this Lease, or by law, to be relieved of Tenant's obligations hereunder or to ter urinate this Lease, shall result in a release or termination of such obligations or a termination of this Lease unless (i) Tenant shall have first given written notice of Landlord's act or failure to act to Landlord's mortgagees of record, if any, specifying the act or failure to act on the part of Landlord which could or would give basis to Tenant's rights and (ii) such mortgagees, after receipt of such notice, have failed or refused to correct or cure the condition complained of within a reasonable time thereafter, but nothing contained in this Section 8.5 shall be deemed to impose any obligation on any such mortgagee to correct or cure any such condition. "Reasonable time" as used above means and includes a reasonable time to obtain possession of the mortgaged premises, if the mortgagee elects to do so, and a reasonable time to correct or cure the condition if such condition is determined to exist.

 

8.6    CONTINUING OFFER.

 

The covenants and agreements contained in this Lease with respect to the rights, powers and benefits of a mortgagee (particularly, without limitation thereby, the covenants and agreements contained in this Article VIII) constitute a continuing offer to any person, corporation or other entity, which by accepting or requiring an assignment of this Lease or by entry or foreclosure assumes the obligations herein set forth with respect to such mortgagee; such mortgagee is hereby constituted a party to this Lease as an obligee hereunder to the same extent as though its name were written hereon as such; and such mortgagee shall be entitled to enforce such provisions in its own name. Tenant agrees on request of Landlord to execute and deliver from time to time any agreement which may reasonably be deemed necessary to implement the provisions of this Article VIII.

ARTICLE IX

DEFAULT

 

9.1    EVENTS OF DEFAULT.

 

If any default by Tenant continues, in case of Annual Rent, additional rent or any other monetary obligation to Landlord for more than five (5) days after notice that the same is due (provided that no notice shall thereafter be required if Tenant defaults in any monetary obligation twice in any twelve (12) month period), or if Tenant fails to provide an estoppel certificate in accordance with Section 10.10 hereof, or if any default by Tenant continues in any other case for more than thirty (30) days after notice and such additional time, if any, as is reasonably necessary to cure the default if the default is of such a nature that it cannot reasonably be cured in thirty (30) days and Tenant promptly commences to cure such default and diligently pursues such cure without interruption to completion; or if Tenant becomes insolvent, fails to pay its debts as they fall due, files a petition under any chapter of the U.S. Bankruptcy Code, 11 U.S.C. 101 et seq., as it may be amended (or any similar petition under any insolvency law of any jurisdiction), or if such petition is filed against Tenant; or if Tenant proposes any dissolution, liquidation, composition, financial reorganization or recapitalization with creditors, makes an assignment or trust mortgage for benefit of creditors, or if a receiver, trustee, custodian or similar agent is appointed or takes possession with respect to any property of Tenant; or if the leasehold hereby created is taken on execution or other process of law in any action against Tenant; then, and in any such case, Landlord and the agents and servants of Landlord may, in addition to and not in derogation of any remedies for any preceding breach of covenant, immediately or at any time thereafter while such default continues and without further notice, at Landlord's election, do any one or more of the following: (1) give Tenant written notice stating that the Lease is terminated, effective upon the giving of such notice or upon a date stated in such notice, as Landlord may elect, in which event the Lease shall be irrevocably extinguished and terminated as stated in such notice without any further action, or (2) with or without process of law, in a lawful manner enter and repossess the Premises as of Landlord's former estate, and expel Tenant and those claiming through or under Tenant, and remove its and their effects, without being guilty of trespass, in which event the Lease shall be irrevocably extinguished and terminated at the time of such entry, or (3) pursue any other rights or remedies permitted by law. Any such termination of the Lease shall be without prejudice to any remedies which might otherwise be used for arrears of rent or prior breach of covenant, and in the event of such termination Tenant shall remain liable under this Lease as hereinafter provided. Tenant hereby waives all statutory rights (including, without limitation, rights of redemption, if any) to the extent such rights may be lawfully waived, and Landlord, without notice to Tenant, may store Tenant's effects and those of any person claiming through or under Tenant at the expense and risk of Tenant and, if Landlord so elects, may sell such effects at public auction or private sale and apply the net proceeds to the payment of all sums due to Landlord from Tenant, if any, and pay over the balance, if any, to Tenant.

 

 

9.2    TENANT'S OBLIGATIONS AFTER TERMINATION.

 

In the event that this Lease is terminated under any of the provisions contained in Section 9.1 or shall be otherwise terminated for breach of any obligation of Tenant, Tenant covenants to pay forthwith to Landlord, as compensation, discounted to present value, the excess of the total rent reserved for the residue of the Teiiii over the rental value of the Premises for said residue of the Term. In calculating the rent reserved, there shall be included, in addition to the Annual Rent and all additional rent, the value of all other consideration agreed to be paid or performed by Tenant for said residue. Tenant further covenants as an additional and cumulative obligation after any such ending to pay punctually to Landlord all the sums and perform all the obligations which Tenant covenants in this Lease to pay and to perform in the same manner and to the same extent and at the same time as if this Lease had not been terminated. In calculating the amounts to be paid by Tenant under the next foregoing covenant, Tenant shall be credited with any amount paid to Landlord as compensation as provided in the first sentence of this Section 9.2 and also with the net proceeds of any rents obtained by Landlord by reletting the Premises, after deducting all Landlord's expenses in connection with such reletting, including, without implied limitation, all repossession costs, brokerage commissions, fees for legal services and expenses of preparing the Premises for such reletting, it being agreed by Tenant that Landlord may (i) relet the Premises or any part or parts thereof for a term or terms which may at Landlord's option be equal to or less than or exceed the period which would otherwise have constituted the balance of the Teiin and may grant such concessions and free rent as Landlord in its sole judgment considers advisable or necessary to relet the same and (ii) make such alterations, repairs and decorations in the Premises as Landlord in its sole judgment considers advisable or necessary to relet the same, and no action of Landlord in accordance with the foregoing or failure to relet or to collect rent under reletting shall operate or be construed to release or reduce Tenant's liability as aforesaid.

 

So long as at least twelve (12) months of the Telin remain unexpired at the time of such termination, in lieu of any other damages or indemnity and in lieu of full recovery by Landlord of all sums payable under all the foregoing provisions of this Section 9.2, Landlord may by written notice to Tenant, at any time after this Lease is terminated under any of the provisions contained in Section 9.1, or is otherwise terminated for breach of any obligation of Tenant and before such full recovery, elect to recover and Tenant shall thereupon pay, as liquidated damages, an amount equal to the aggregate of the Annual Rent and additional rent accrued under Article IV in the 12 months ended next prior to such termination plus the amount of Annual Rent and additional rent of any kind accrued and unpaid at the time of termination and less the amount of any recovery by Landlord under the foregoing provisions of this Section 9.2 up to the time of payment of such liquidated damages.

 

Nothing contained in this Lease shall, however, limit or prejudice the right of Landlord to prove and obtain in proceedings for bankruptcy or insolvency by reason of the termination of this Lease, an amount equal to the maximum allowed by any statute or rule of law in effect at the time when, and governing the proceedings in which, the damages are to be proved, whether or not the amount be greater, equal to, or less than the amount of the loss or damages referred to above.

 

 

ARTICLE X

MISCELLANEOUS

 

10.1    NOTICE OF LEASE.

 

Upon request of either party, both parties shall execute and deliver, after the Term begins, a notice of this Lease in form appropriate for recording or registration, and if this Lease is terminated before the Term expires, an instrument in such form acknowledging the date of termination.

 

10.2    (Intentionally Omitted)

 

10.3    NOTICES FROM ONE PARTY TO THE OTHER,

 

All notices required or permitted hereunder shall be in writing and addressed, if to the Tenant, at Tenant's Address or such other address as Tenant shall have last designated by notice in writing to Landlord and, if to Landlord, at Landlord's Address or such other address as Landlord shall have last designated by notice in writing to Tenant. Any notice shall have been deemed duly given if mailed to such address postage prepaid, registered or certified mail, return receipt requested, when deposited with the U.S. Postal Service, or if delivered to such address by hand, when so delivered.

 

10.4    BIND AND INURE.

 

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 the Landlord named herein and each successive owner of the Premises shall be liable only for the obligations accruing during the period of its ownership. The obligations of Landlord shall be binding upon the assets of Landlord which comprise the Building and the Lot but not upon other assets of Landlord. No individual partner, member, trustee, stockholder, officer, director, employee or beneficiary of Landlord shall be personally liable under this Lease and Tenant shall look solely to Landlord's interest in the Building and the Lot in pursuit of its remedies upon an event of default hereunder, and the general assets of the individual partners, trustees, stockholders, officers, employees or beneficiaries of Landlord shall not be subject to levy, execution or other enforcement procedure for the satisfaction of the remedies of Tenant.

 

10.5    NO SURRENDER.

 

The delivery of keys to any employee of Landlord or to Landlord's agent or any employee thereof shall not operate as a termination of this Lease or a surrender of the Premises.

 

 

10.6    NO WAIVER, ETC.

 

The failure of Landlord to seek redress for violation of, or to insist upon the strict performance of any covenant or condition of this Lease or any of the Rules and Regulations referred to in Section 6.1.4, whether heretofore or hereafter adopted by Landlord, shall not be deemed a waiver of such violation nor prevent a subsequent act, which would have originally constituted a violation, from having all the force and effect of an original violation, nor shall the failure of Landlord to enforce any of said Rules and Regulations against any other tenant in the Building be deemed a waiver of any such Rules or Regulations. The receipt by Landlord of Annual Rent or additional rent with knowledge of the breach of any covenant of this Lease shall not be deemed a waiver of such breach by Landlord, unless such waiver be in writing and signed by Landlord. No consent or waiver, express or implied, by Landlord to or of any breach of any agreement or duty shall be construed as a waiver or consent to or of any other breach of the same or any other agreement or duty.

 

10.7    NO ACCORD AND SATISFACTION.

 

No acceptance by Landlord of a lesser sum than the Annual Rent and additional rent then due shall be deemed to be other than on account of the earliest installment of such rent due, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as rent be deemed as accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such installment or pursue any other remedy in this Lease provided.

 

10.8    CUMULATIVE REMEDIES.

 

The specific remedies to which Landlord may resort under the terms of this Lease are cumulative and are not intended to be exclusive of any other remedies or means of redress to which it may be lawfully entitled in case of any breach or threatened breach by Tenant of any provisions of this Lease. In addition to the other remedies provided in this Lease, Landlord shall be entitled to the restraint by injunction of the violation or attempted or threatened violation of any of the covenants, conditions or provisions of this Lease or to a decree compelling specific performance of any such covenants, conditions or provisions.

 

10.9    LANDLORD'S RIGHT TO CURE.

 

If Tenant shall at any time default in the performance of any obligation under this Lease beyond applicable notice and cure periods (provided that no notice or cure period need be provided in the event of an emergency), Landlord shall have the right, but shall not be obligated, to enter upon the Premises and to perform such obligation, notwithstanding the fact that no specific provision for such substituted performance by Landlord is made in this Lease with respect to such default. In performing such obligation, Landlord may make any payment of money or perform any other act. All sums so paid by Landlord (together with interest at the rate of 4% per annum in excess of the then prime commercial rate of interest being charged by the three largest national banks in Boston, Massachusetts) and all necessary out-of-pocket costs and expenses in connection with the performance of any such act by Landlord, shall be deemed to be additional rent under this Lease and shall be payable to Landlord immediately within five (5) days following written demand therefor. Landlord may exercise the foregoing rights without waiving any other of its rights or releasing Tenant from any of its obligations under this Lease.

 

 

10.10    ESTOPPEL CERTIFICATE.

 

Tenant and Landlord agree, from time to time, upon not less than 15 days' prior written request, to execute, acknowledge and deliver to the other a statement in writing certifying that this Lease is unmodified and in full force and effect; that Tenant has no defenses, offsets or counterclaims against its obligations to pay the Annual Rent and additional rent and to perform its other covenants under this Lease; that there are no uncured defaults of Landlord or Tenant under this Lease (or, if there have been modifications, that this Lease is in full force and effect as modified and stating the modifications, and, if there are any defenses, offsets, counterclaims, or defaults, setting them forth in reasonable detail); and the dates to which the Annual Rent, additional rent and other charges have been paid. Any such statement delivered pursuant to this Section 10.10 shall be in a foifli reasonably acceptable to and may be relied upon by any prospective purchaser or mortgagee of premises which include the Premises or any prospective assignee of any such mortgagee, or any prospective assignee, purchaser or lender of Tenant.

 

10.11    WAIVER OF SUBROGATION.

 

Any insurance carried by either party with respect to the Premises and property therein or occurrences thereon shall include a clause or endorsement denying to the insurer rights of subrogation against the other party to the extent rights have been waived by the insured prior to occurrences of injury or loss. Each party, notwithstanding any provisions of this Lease to the contrary, hereby waives any rights of recovery against the other for injury or loss due to hazards covered by insurance containing such clause or endorsement to the extent of the insurance coverages required to be maintained hereunder.

 

10.12    ACTS OF GOD.

 

In any case where either party hereto is required to do any act, delays caused by or resulting from Acts of God, war, civil commotion, fire, flood or other casualty, labor difficulties, shortages of labor, materials or equipment, government regulations, unusually severe weather, or other causes beyond such party's reasonable control shall not be counted in deteimining the time during which work shall be completed, whether such time be designated by a fixed date, a fixed time or a "reasonable time," and such time shall be deemed to be extended by the period of such delay.

 

10.13    BROKERAGE.

 

Tenant and Landlord represent and warrant that they dealt with no brokers in connection with this transaction other than the Broker and agree to defend, with counsel approved by the other, indemnify and save the other harmless from and against any and all cost, expense or liability for any compensation, commissions or charges claimed by a broker or agent, other than the Broker in connection with this Lease. Landlord hereby agrees to pay the brokerage fees to the Broker in connection with the execution and delivery of this Lease.

 

 

10.14    SUBMISSION NOT AN OFFER.

 

The submission of a draft of this Lease or a summary of some or all of its provisions does not constitute an offer to lease or demise the Premises, it being understood and agreed that neither Landlord nor Tenant shall be legally bound with respect to the leasing of the Premises unless and until this Lease has been executed by both Landlord and Tenant and a fully executed copy has been delivered to each of them.

 

10.15    APPLICABLE LAW AND CONSTRUCTION.

 

This Lease shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts. If any term, covenant, condition or provision of this Lease or the application thereof to any person or circumstances shall be declared invalid or unenforceable by the final ruling of a court of competent jurisdiction having final review, the remaining terms, covenants, conditions and provisions of this Lease and their application to persons or circumstances shall not be affected thereby and shall continue to be enforced and recognized as valid agreements of the parties, and in the place of such invalid or unenforceable provision, there shall be substituted a like, but valid and enforceable provision which comports to the findings of the aforesaid court and most nearly accomplishes the original intention of the parties.

 

There are no oral or written agreements between Landlord and Tenant affecting this Lease. This Lease may be amended, and the provisions hereof may be waived or modified, only by instruments in writing executed by Landlord and Tenant.

 

The titles of the several Articles and Sections contained herein are for convenience only and shall not be considered in construing this Lease.

 

Unless repugnant to the context, the words "Landlord" and "Tenant" appearing in this Lease shall be construed to mean those named above and their respective heirs, executors, administrators, successors and assigns, and those claiming through or under them respectively. If there be more than one tenant, the obligations imposed by this Lease upon Tenant shall be joint and several.

 

10.16    AUTHORITY OF TENANT.

 

Tenant represents and warrants to Landlord (which representations and warranties shall survive the delivery of this Lease) that: (a) Tenant (i) is duly organized, validly existing and in good standing under the laws of its state of incorporation, (ii) has the corporate power and authority to carry on businesses now being conducted and is qualified to do business in every jurisdiction where such qualification is necessary and (iii) has the corporate power to execute and deliver and perform its obligations under this Lease and (b) the execution, delivery and performance by Tenant of its obligations under this Lease have been duly authorized and will not violate any provision of law, any order of any court or other agency of government, the corporate charter or by-laws of the Tenant or any indenture, agreement or other instrument to which it is a party or by which it is bound.

 

 

SECURITY DEPOSIT

 

 

	LANDLORD:   CAMBRIDGEPARK 125 REALTY CORPORATION   By: /s/ Edward Hennessey
	EDWARD HENNESSEY
	VICE PRESIDENT
	TENANT:   INNOVATIVE DRUG DELIVERY SYSTEMS, INC.
	By: /s/ Fred Mermelstein
	Name: Fred Mermelstein
	Title: CEO & President        Hereunto duly authorized

 

 

125 CambridgePark Drive

 

A certain parcel of land in Cambridge, Middlesex, Massachusetts as shown on a plan entitled "Plan of Land Cambridge, Massachusetts" dated December 19, 1981, prepared by Harry A. Feldman, Inc. and recorded with the Middlesex South Registry of Deeds as Plan No.560 of 1983 more particularly bounded and described as follows:

 

Beginning at a point on the northerly sideline of CambridgePark Drive, said point is the southwesterly corner of the land of the Genetics Institute and is located N76 degrees 30' -41"W a distance of 16.53 feet from a point of curvature on the northerly sideline of said CambridgePark Drive;

 

Thence running N76 degrees- 30'-41" W along the northerly sideline of CambridgePark Drive a distance of 300.00 feet;

 

Thence turning and running N13 degrees- 29'-19"E a distance of 303.49 feet;

 

Thence turning and running easterly by a curved line to the left of radius 2234.49 feet a distance of 23.42 feet;

 

Thence turning and running N13 degrees 29'-19"E a distance of 13.86 feet;

 

Thence turning and running westerly by a curved line to the right of radius 2904.43 feet a distance of 23.42 feet;

 

Thence turning and running N13 degrees— 29'-19"E a distance of 41.44 feet;

 

Thence turning and running northeasterly by a curved line to the left of radius 2864.93 feet a distance of 399.78 feet;

 

Thence turning and running S13 degrees- 29'-19"W a distance of 43.74 feet;

 

Thence turning and running southwesterly by a curved line to the right of a radius 2904.43 a distance of 78.34 feet to a concrete bound;

 

Thence turning and running S13 degrees- 29'-19"W a distance of 429.91 feet to the point of beginning;

 

Containing an area of 126,595 square feet for 2.906 acres.

 

 

 

 

 

 

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	1.	The entrances, lobbies, passages, corridors, elevators, halls, courts, sidewalks, vestibules, and stairways shall not be encumbered or obstructed by Tenant, Tenant's agents, servants, employees, licensees or visitors or used by them for any purposes other than ingress or egress to and from the Premises. Landlord shall have the right to control and operate portions of the Building and the facilities furnished for common use of the tenants in such manner as Landlord deems best for the benefit of the tenants generally.
	2.	The moving in or out of all safes, freight, furniture, or bulky matter of any description shall take place during the hours which Landlord may determine from time to time. Landlord reserves the right to inspect all freight and bulky matter to be brought into the Building and to exclude from the Building all freight and bulky matter which violates any of these Rules and Regulations or the Lease of which these Rules, and Regulations are a part. Landlord reserves the right to have Landlord's structural engineer review Tenant's floor loads on the Premises at Tenant's expense.
	3.	Tenant, or the employees, agents, servants, visitors or licensees of Tenant shall not at any time place waste or discard any rubbish, paper, articles, or objects of any kind whatsoever outside the doors of the Premises or in the corridors or passageways of the Building. No animals or birds (other than fish in a fish tank) shall be brought or kept in or about the Building. Bicycles shall not be permitted in the Building.
	4.	Tenant shall not place objects against glass partitions or doors or windows or adjacent to any common space which would be unsightly from the Building corridors or from the exterior of the Building and will promptly remove the same upon notice from Landlord.