Attached files
| file | filename |
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| 8-K - 111229_ASNB FORM 8-K_SALE OF 229 ANDOVER STREET - EKIMAS Corp | asnbform8k_111229.htm |
| EX-10.35 - 111229_ASNB FORM 8-K_EXHIBIT 10.35 - EKIMAS Corp | asnbform8k_ex10-35.htm |
EXHIBIT 10.36
LEASE
THIS LEASE AGREEMENT (this "Lease") made as of this 22nd day of December, 2011 by and between 229 Andover Street , LLC, a Massachusetts Limited Liability Company (hereinafter called "Landlord"), and AdvanSource Biomaterials Corporation , a Delaware Corporation (hereinafter called "Tenant") which will have its principal place of business at the Demised Premises (defined below).
WITNESSETH:
ARTICLE 1 DEMISED PREMISES
1. Landlord hereby demises to Tenant and Tenant hereby leases from Landlord upon and subject to the covenants, conditions and agreements set forth herein that certain land (the "Land") being more particularly described on Exhibit "A", containing approximately 99,517 square feet and a two (2) story office building containing approximately 26,415 square feet of space ("the Building") commonly referred to as 229 Andover Street, Wilmington, Massachusetts, together with any and all other improvements currently located or to be located upon the Land and any and all parking areas (hereinafter collectively called "Demised Premises").
ARTICLE 2 TERM
2. TO HAVE AND TO HOLD for a term (the “Term”) beginning on December ____, 2011 ("Commencement Date") and ending at midnight on December 31, 2026 ("Expiration Date"), unless sooner terminated, as provided or permitted under this Lease. So long as this Lease is in full force and effect and Tenant is not in default beyond any applicable grace period, the Tenant shall have the option to extend the Term of this Lease for three (3) periods of five (5) years each (each an “Extension Term”) upon written notice by Tenant to Landlord, delivered at least six (6) months prior to the start of the applicable Extension Term (an “Option Notice”). The terms and conditions applicable to said Extension Term shall be the same as set forth herein, except that the Minimum Basic Rent shall equal Fair Market Rental Value (as defined below) for the Demised Premises.
Within thirty (30) days from receipt of the “Option Notice”, Landlord shall notify Tenant in writing of the Rent which shall be due for the Extension Term. The Rent specified by Landlord shall be that which the Landlord in good faith projects will be the then fair market rent for comparable lease extensions as of the commencement of the Extension Term. Within twenty (20) days after Landlord has given Tenant notice of such good faith projection of the fair market rent hereinafter “Landlord Fair Market Rent Option Notice”, Tenant shall notify Landlord whether or not it agrees to pay such Rent during the Extension Term. If Tenant shall agree in writing to pay such Rent, then this Lease shall be extended for the Extension Term without the execution of any additional documents, and each and every term and condition of this Lease shall apply during the Extension Term except only that the Rent specified in this Lease during the Extension Term shall be that agreed upon by Landlord and Tenant, and the phrase, “term of this
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Lease”, shall be construed to mean the Extension Term of this Lease. If Tenant shall not agree in writing to pay such Rent, then Tenant shall so notify Landlord in writing within said twenty (20) day period (the “Tenant Appraisal Notice”) and the Base Rent for the Extension Term shall be determined by the appraisal process described below.
Each of Landlord and Tenant shall at its own cost and expense retain a real estate broker, who must have five (5) years experience in commercial leasing in the Boston-suburban office market, to determine the fair market rent for the Premises as of the commencement date of the Extension Term with reference to comparable buildings in the same market as the Building, which opinions of value must be completed and submitted within forty-five (45) days of Tenant’s Appraisal Notice. If the two opinions are within ten percent (10%) of each other, then the average of the two amounts shall constitute the rent which shall be due during the Extension Term. If the two opinions are not within ten percent (10%) of each other, the two brokers shall select a third real estate broker (who must also possess the minimum qualifications described above), who within the next thirty (30) days shall select which of the two initial amounts shall constitute the fair market rent. Rent during the Extension Term shall be the amount so determined. Landlord and Tenant shall each bear one-half of the cost of said third broker. The appraisal process shall be binding upon both Landlord and Tenant, and once the process is initiated, Tenant may not withdraw the exercise of the option to extend. If Tenant shall fail to give Landlord the Option Notice on a timely basis, Tenant shall have no right to extend this Lease for the Extension Term, and this Lease shall terminate as provided herein, and Tenant shall vacate the Premises on or before the stated termination date of this Lease in accordance with the provisions hereof unless the Parties agree otherwise.
3. (a) Tenant shall pay to Landlord rent ("Minimum Basic Rent") at the rates set forth in Exhibit "B" (the “Rent Schedule”) attached hereto and incorporated herein by reference, payable in advance in monthly installments beginning on the Commencement Date.
(b) The tenant shall deposit with Attorney William Bonaccorso at North East Title Partners (“Escrow Agent”) an amount equal to the first year’s Minimum Basic Rent. This amount shall be held by the Escrow Agent in a separate account and disbursed to the Landlord on a monthly basis in accordance with the Rent Schedule. After the first year, a security deposit equal to 2 (two) month’s Basic Rent shall be deposited with Landlord.
(c) As additional security for the Tenant’s performance hereunder, the Landlord shall be granted a first security interest in all assets of the Tenant, including after acquired property.
(d) Rent shall be on a triple net basis with no landlord responsibilities for roof or structure.
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ARTICLE 4 ADDITIONAL RENTAL
4. (a) Tenant shall also pay to Landlord as Additional Rent an amount equal to One Hundred (100%) percent of any and all real estate taxes assessed against the Demised Premises and which are due and payable during the Lease Term ("Real Estate Taxes"), or any tax levied against the Demised Premises and payable during the Lease Term which is in substitution or in lieu of Real Estate Taxes which pertain solely to the Demised Premises ("Additional Rent"). In the event Real Estate Taxes are abated during the Lease Term which result in Real Estate Taxes below the amount paid by Tenant hereunder for any tax period, the abatement shall either (i) be credited to Tenant for the next applicable tax period or (ii) to the extent no Additional Rent is subject to such reduction, be returned to Tenant at the time such Additional Rent would be payable. Such Additional Rent shall be payable by Tenant directly to the applicable taxing authority prior to delinquency. Such Additional Rent shall be pro rated for any portion of the first or last year of the Lease Term, during which Tenant shall occupy the Demised Premises for less than a full fiscal tax year. The terms "Rent" or "Rents" as used throughout this Lease shall collectively refer to Minimum Basic Rent and Additional Rent.
(b) Tenant shall also pay and be responsible for all costs and expenses actually incurred by Tenant with respect to the Demised Premises including but not limited to the following: electricity, gas, water, sewerage, striping, lighting, patching and resurfacing of parking areas, window cleaning, building supplies, snow removal, rubbish removal, and all other expenses customarily incurred in connection with the operation and maintenance of similar buildings in the Metropolitan Boston area. Tenant shall contract directly with such service providers and vendors.
ARTICLE 5 PLACE OF PAYMENT
5. Except as otherwise expressly provided for under this Lease in Article 26, Tenant shall make all Rent payments due to Landlord under this Lease without the right of set-off or demand, all payments of Minimum Basic Rent and Additional Rent (which are payable to the Landlord) shall be sent to Landlord 134 Upland Road, Waban, Massachusetts 02468, or to such other person and at such other place as may be designated by notice in writing from the Landlord to the Tenant, and may be made by check or draft payable to the order of Landlord.
ARTICLE 6 SIGNS
6. Tenant may place exterior signs about the Demised Premises subject to the written consent of the Landlord, which shall not be unreasonably withheld, conditioned or delayed, and shall be removed by Tenant at the end of the Lease Term, if requested by Landlord, and Tenant shall repair any damage caused by Tenant's installation and removal of any such signs. Tenant shall have the right to place interior signs within the Demised Premises without the prior written consent of the Landlord.
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ARTICLE 7 CONDEMNATION
7. In the event that the Demised Premises or any portion thereof equal to fifteen percent (15%) or more of the floor area of the first floor of the Building or any portion of the parking areas upon the Land shall be condemned and taken by the right of eminent domain, and Tenant determines in its good faith judgment that the Demises Premises is not suitable for the uses permitted hereunder, then Landlord or Tenant may, at its option, cancel and terminate this Lease by giving notice of its intention to do so within sixty (60) days after receipt of notice, in writing, of such taking or damage, in which case, all Minimum Basic Rent and Additional Rent due or accrued on such date shall be paid to Landlord and unearned Minimum Basic Rent and Additional Rent and all other charges paid in advance, if any, shall be refunded to the Tenant who shall surrender the Demised Premises within sixty (60) days after such notice to Landlord, and Landlord shall be responsible for any and all costs and expense pertaining to the Demised Premises from and after any such surrender date. If this Lease is not so cancelled or terminated, then Landlord, at its expense, shall restore the reduced Demised Premises so far as practicable to the condition existing immediately prior to such taking. In the event of such condemnation and taking or damage, there shall be such abatement or reduction of Rents as shall be just and equitable. All claims and rights to award in the event of such taking are expressly reserved to Landlord, except as to any claim which Tenant may have for damage to its leasehold estate, personal property or trade fixtures which is reserved to it.
ARTICLE 8 DAMAGE BY FIRE, ETC.
8. In the event that the Demised Premises are destroyed or damaged by fire, the elements, or casualty, and provided no Event of Default is existing, then provided the casualty is insured and to the extent the net proceeds of recovery are available and received by Landlord, Landlord shall restore the Demised Premises to the condition existing immediately prior to the date of such damage or destruction and subject to applicable zoning and building laws then in existence. Tenant may elect either to (a) terminate this Lease if Landlord fails to restore the Demised Premises to a condition substantially suitable for Tenant's intended use within six (6) months of said damage or destruction or (b) in the event Landlord is obligated to restore the Demised Premises hereunder, restore the Demised Premises and be immediately reimbursed by Landlord for all cost and expense for such restoration undertaken by or at Tenant's direction. In the event Landlord fails to reimburse Tenant as provided herein, Tenant may offset all cost and expense for such restoration against the Minimum Basic Rent until the entire amount due has been recovered.
ARTICLE 9 ABATEMENT OF RENT
9. If, as a result of damage or destruction due to fire or the elements or casualty or as a result of the exercise of eminent domain, the whole or any part of the Demised Premises shall become untenantable, dangerous or unfit for the Tenant's use, the applicable Minimum Basic and Additional Rents shall abate justly and proportionately during the continuance of any such condition.
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ARTICLE 10 CONDITION OF DEMISED PREMISES; CONSTRUCTION
10. (a)Except as otherwise provided in this Article 10(a) and subject to Landlord's indemnity in Article 11, Tenant accepts the Demised Premises in its present condition, without representation or warranty, express or implied, in fact or in law, by Landlord and without recourse to Landlord as to the nature, condition or usability thereof including the existence of any Hazardous Substances as defined in Article 11(b) hereof. Tenant agrees that Landlord has no work to perform in or on the Demised Premises.
(b) Tenant shall not make or perform, or permit the making or performance of, any other alterations, installations, improvements, additions or physical changes in or about the Demised Premises (referred to collectively as "Alterations") without Landlord's prior consent. Landlord agrees not unreasonably to withhold or delay its consent to any nonstructural Alterations proposed to be made by Tenant to adapt the Demised Premises for Tenant's business purposes. Notwithstanding the foregoing, Landlord shall have no obligation to consent to any Alteration which will reduce the value or utility of the Demised Premises. Notwithstanding the foregoing provisions of this paragraph or Landlord's consent to any Alterations, all Alterations, whether made prior to or during the Lease Term, shall be made and performed in conformity with and subject to the following provisions: no Alteration shall adversely affect any service required to be furnished by Landlord to Tenant; Tenant shall submit to Landlord reasonably detailed plans and specifications for each proposed Alteration and shall not commence any such Alteration without first obtaining Landlord's approval of such plans and specifications, which approval will not be unreasonably withheld, conditioned or delayed; prior to the commencement of each proposed Alteration, Tenant shall furnish to Landlord a duplicate original policy of comprehensive public liability insurance (including property damage coverage) in which Landlord and its agents shall be named as parties insured, which policies shall be issued by companies and shall be in form and amounts reasonably satisfactory to Landlord and shall be maintained by Tenant until the completion of such Alteration; all fireproof wood test reports, electrical and air conditioning certificates, and all other permits, approvals and certificates required by all applicable governmental authorities shall be timely obtained by Tenant and submitted to Landlord; notwithstanding Landlord's approval of plans and specifications for any Alteration, all Alterations shall be made and performed in full compliance with all applicable laws, orders and regulations of Federal, State, County and Municipal authorities and with all directions, pursuant to law, of all public officers in all material respects; and all materials and equipment to be incorporated in the Demised Premises as a result of all Alterations shall be of good quality.
(c) Notwithstanding anything contained in this Lease to the contrary, Tenant may make interior non-structural Alterations which are entirely cosmetic in nature (including, without limitation, painting and carpeting) without Landlord’s approval.
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ARTICLE 11 USE OF DEMISED PREMISES; HAZARDOUS SUBSTANCES
11. (a) Tenant shall use the Demised Premises for office use, research and development with respect to polymer materials, and manufacture and storage of raw materials to make polymer based materials, as well as storage of the finished polymer based materials, and for no other purpose.
(b) Tenant shall not (i) generate, release, store, dispose of, dump, flush or in any way introduce (hereinafter collectively "Release") oil, hazardous material, hazardous waste or hazardous substances (hereinafter collectively called "Hazardous Substances"), as those terms are defined by any applicable federal, state or local law, rule or regulation (hereinafter collectively referred to as "Applicable Environmental Laws"), including without limitation, the Massachusetts Oil and Hazardous Material Release Prevention and Response Act, M.G.L. c. 21E, the Massachusetts Hazardous Waste Management Act, M.G.L. c. 21C, the Comprehensive Environmental Response Compensation and Liability Act, as amended, 42 U.S.C. §9601 et seq. and the Resource Conservation and Recovery Act, as amended, 42 U.S.C. §§6901 et seq., which terms shall also include, whether or not included in the definitions contained in Applicable Environmental Laws, petroleum, solvents, asbestos, polychlorinated biphenyls and other chemicals which are dangerous to the environment or to human beings in, on, under or from the Demised Premises or the Landlord's Property. Tenant shall notify Landlord of any incident which would require the filing of notice or notification pursuant to any Applicable Environmental Laws as now existing or hereinafter enacted. If, at any time during the Lease Term, Landlord shall reasonably believe that any Hazardous Substances have been so Released by the Tenant in violation of Applicable Environmental Laws, upon demand by Landlord (or in the event of any such Release of which Tenant has actual knowledge without demand from Landlord), Tenant, at its sole expense, shall cause a hazardous waste site assessment, so-called, to be made forthwith of the Demised Premises (including, without limitation, the subsurface of any of the same) likely to have been affected by any such Release. If such hazardous waste site assessment indicates the existence of Hazardous Substances on the surface or in the subsurface water or soils of the Demised Premises as the result of a Release, Tenant shall thereupon forthwith take all steps necessary to remove any and all Hazardous Substances and the soils containing the same, and such further steps as shall be necessary to remedy the effects of such Hazardous Substances.
(c) After reasonable written notice from Landlord to Tenant, Tenant shall make available to Landlord all reports and statements produced by or at Tenant's request, and information required to be maintained, or obtained by Tenant with respect to any such Hazardous Substances. Any such site assessment shall be of an investigatory scope reasonably acceptable to Landlord. The obligations of Tenant hereunder shall survive the termination of this Lease.
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ARTICLE 12 ASSIGNMENT AND SUB-LETTING
12. Tenant will not mortgage, pledge, encumber, sell, assign or transfer this Lease, in whole or in part, or sublease or allow the use of all or any part of the Demised Premises, without Landlord's written consent; however, Tenant may sell, assign or otherwise transfer this Lease (in whole or in part) to, or sublease to or allow the use of all or any part of the Demised Premises by, any affiliate of Tenant or any party buying all or substantially all of the assets or capital stock of Tenant without Landlord's consent. In connection with any request by Tenant for such consent to transfer or sublet, Tenant shall submit to Landlord, in writing, a statement containing the name of the proposed transferee or subtenant, as the case may be such information as to its financial responsibility and standing as Landlord may reasonably require, and all of the terms and provisions upon which the proposed transfer or subletting is to be made, and, unless the proposed sublet area shall constitute the entire Demised Premises, such statement shall be accompanied by a floor plan delineating the proposed sublet area. As long as no Event of Default is existing under any of the terms, covenants and conditions of this Lease on Tenant's part to be observed and performed, Landlord shall not unreasonably withhold condition or delay Landlord's prior consent to transfer or subletting’s or uses by Tenant of all or parts of the Demised Premises. Each such subletting shall be for undivided occupancy by the subtenant of that part of the Demised Premises affected thereby for the use permitted under this Lease. Landlord may, however, withhold such consent if, in Landlord's reasonable judgment, the proposed subtenant will impose any additional material burden upon Landlord in the operation of the Property (to an extent greater than the burden to which Landlord would have been put if Tenant continued to use, or used, such part of the Demised Premises for its own purposes), or if Landlord has any other reasonable objections to the proposed sub-letting. Notwithstanding any assignment or subletting or consent thereto, all uses hereunder by any assignee or subtenant are subject to Article 12 hereunder. Landlord shall be reimbursed for reasonable legal fees and expenses incurred in connection with giving its consent hereunder not to exceed Two Thousand and 00/100 Dollars ($2,000.00).
ARTICLE 13 LIABILITY INSURANCE
13. (a) Tenant shall maintain with respect of the Demised Premises public liability insurance in amounts not less than ONE MILLION ($1,000,000.00) DOLLARS for injury to or death of, one person, and TWO MILLION DOLLARS ($2,000,000.00) for injury to or death of, more than one person in a single accident, and Property damage insurance in an amount not less than ONE HUNDRED THOUSAND DOLLARS ($100,000.00), in responsible companies qualified to do business in the Commonwealth of Massachusetts and in good standing, insuring Landlord as well as Tenant against injury, loss, claims or damages to any person or Property while on the Demised Premises. Tenant shall also maintain workmen's compensation insurance covering all of the Tenant's employees working in the Demised Premises.
(b) Tenant shall deposit with the Landlord certificates of insurance at or prior to the
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(c) commencement of the Lease Term, and thereafter within ten (10) days prior to the expiration of such policies, shall provide that the policies may not be cancelled without at least twenty (20) days written notice to the insured.
ARTICLE 14 FIRE INSURANCE AND SUBROGATION
14. (a) Tenant shall, from and after the date of the execution of this Lease, keep the Demised Premises insured against loss or damage by fire and any of the casualties included in the extended coverage or supplementary contract endorsements, in an amount not less than one hundred percent (100%) of the full replacement value thereof exclusive of the foundations, with a guaranteed replacement value endorsement. Landlord shall be named as an additional insured on the policy.
(b) Tenant shall deposit with the Landlord certificates of insurance at or prior to the commencement of the Lease Term, and thereafter within ten (10) days prior to the expiration of such policies, shall provide that the policies may not be cancelled without at least ten (10) days written notice to the insured.
(c) Each of Landlord and Tenant hereby releases the other from any and all liability or responsibility (to the other or anyone claiming through or under them by way of subrogation or otherwise) for any loss or damage to Demised Premises caused by fire or any of the extended coverage or supplementary contract casualties, even if such fire or other casualty shall have been caused by the fault or negligence of the other party, or anyone for whom such party may be responsible, provided however, that his release shall be applicable and in force and effect only with respect to loss or damage occurring during such time as the releasor's policies shall contain a clause or endorsement to the effect that any such release shall not adversely affect or impair said policies or prejudice the right of the releasor to recover thereunder. Each of Landlord and Tenant agrees that its policies will include such a clause or endorsement so long as the same shall be obtainable without extra cost, or if extra cost shall be charged therefore, so long as the other party pays such extra cost. If extra cost shall be chargeable therefore, each party shall advise the other thereof and of the amount of the extra cost, and the other party, at its election, may pay the same, but shall not be obligated so to do.
ARTICLE 15 QUIET ENJOYMENT AND SURRENDER
15. (a) Landlord covenants that Tenant shall quietly hold, occupy and enjoy the Demised Premises during the Lease Term , subject to the terms and conditions set forth in this Lease, free from molestation or hindrance by Landlord or any other person so long as Tenant shall observe and satisfy in all material respects its obligations and covenants set forth in this Lease.
(b) At the expiration or earlier termination of the Lease Term or of any extension thereof, if such term be extended, the Tenant covenants that it will peaceably and quietly leave and surrender the Demised Premises together with all alterations, additions and
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improvements then a part of the Demised Premises in good order and condition, reasonable wear and tear, restoration, repairs and replacements required to be made by the Landlord and loss or damage by fire, the elements and casualty, excepted.
ARTICLE 16 DEFAULTS BY TENANT
16. (a) If any one or more of the following events ("Events of Default") shall occur, Tenant shall be in Default hereunder: If default shall be made in the due and punctual payment of any installment of Minimum Basic Rent, or Additional Rent or any other charges payable under this Lease, when and as the same shall become due and payable, and such default shall continue for a period of fifteen (15) days after written notice from Landlord to Tenant specifying the items in default; or
(1) If default shall be made by Tenant in the performance or compliance with any of the agreements, terms, covenants or conditions in this Lease other than those referred to in the foregoing subparagraph (1) in any material respect, and such default shall continue for a period of sixty (60) days, after written notice from Landlord to Tenant specifying such default, or in case of a default or contingency which cannot with due diligence be corrected or otherwise promptly addressed within said sixty (60) day period, then Tenant shall be afforded such additional time as may be necessary to cure any such noticed default, so long as Tenant shall have commend such cure within said sixty (60) day period, and continues to diligently pursue same to completion; or
(2) If the Tenant, shall file a voluntary petition in bankruptcy or shall be adjudicated a bankrupt or insolvent, or shall file any petition or answer seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under the present or any future federal bankruptcy act or any other present or future federal, state or other bankruptcy or insolvency statute or law, or shall seek or consent to the appointment of any bankruptcy or insolvency Trustee, receiver or liquidator of Tenant or of all or any substantial part of Tenant's assets or properties; or
(3) If within ninety (90) days after the commencement of any proceeding against the Tenant seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under the present or any future federal Bankruptcy Code or any other present or future federal, state or other bankruptcy or insolvency statute or law, such proceeding shall not have been dismissed, or if, within ninety (90) days after the appointment, without the consent of Tenant of any Trustee, receiver or liquidator of such Tenant or of all or substantially all of its assets or properties, such appointment shall not have been vacated or stayed on appeal or otherwise, or if within ninety (90) days after the expiration of any such stay, such appointment shall not have been vacated; then and in any such event Landlord, at any time within a period of ninety (90) days thereafter, may give written notice to Tenant specifying such default and stating that this Lease and the term hereby demised shall expire and terminate on the date specified in such notice which shall be at least ten (10) days after the giving of such notice, and upon the date specified in such notice this Lease and the term hereby demised and all
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rights of Tenant under this Lease, including any renewal or extension privileges whether or not exercised shall expire and terminate, and Tenant shall remain liable as hereinafter provided.
(b) Upon any such expiration or termination of this Lease, Tenant shall quit and peacefully surrender the Demised Premises to Landlord, and Landlord, upon or at any such expiration or termination, may without further notice, enter upon and reenter the Demised Premises and possess and repossess itself thereof, by summary proceedings or otherwise, and may dispossess Tenant and remove Tenant and all other persons and property from the Demised Premises and may have, hold and enjoy the Demised Premises and the rights to receive all rental income of and from the same.
(c) No such expiration or termination of this Lease, or abandonment or vacancy, shall relieve Tenant of its liability and obligation under this Lease, whether or not the Demised Premises shall be relet, and Tenant covenants and agrees, notwithstanding any such expiration or termination of this Lease, or summary proceedings, abandonment or vacancy, to pay and be liable for, on each day originally fixed herein for the payment thereof, an amount equal to the installment of rent and other charges reserved as would, under the terms of this Lease, become due and payable on such day, if this Lease had not so expired or been terminated, or if Landlord had not entered or reentered as aforesaid, and whether the Demised Premises be relet or remain vacant in whole or in part or for a period less than the remainder of the term, and for the whole thereof, up to but not exceeding the amount of any deficiency then existing after giving due credit for any net proceeds of any reletting after deducting all of Landlord's reasonable expenses in connection with such reletting, including reasonable attorneys' fees, and any suit brought to collect the amount of the deficiency for any week shall not prejudice in any way the rights of Landlord to collect the amount of the deficiency for any subsequent week by a similar proceeding, OR IN THE ALTERNATIVE AT THE ELECTION OF Landlord, Tenant will, upon such expiration or termination, pay to Landlord as liquidated damages such a sum as at the time of such expiration or termination represents the excess, if any, of the Rent and other charges reserved in this Lease from the date of such expiration or termination to the date of the expiration of the original term, (or extended term, if the Lease has been so extended) of this Lease, over the then fair and reasonable rental value of the Demised Premises for the same period upon the terms and conditions set forth herein. In all events, Landlord shall use reasonable efforts to relet the Demised Premises.
ARTICLE 17 SUBORDINATION AND RECOGNITION
17. (a) Tenant shall, upon the request of Landlord in writing subordinate this Lease and the lien hereof by executing promptly, without cost, any instruments furnished by Landlord which may be necessary or desirable to evidence such subordination, to the lien of any present or future mortgage or mortgages upon the Demised Premises irrespective of the time of execution or the time of recording of any such mortgage or mortgages, provided that the holder of any such mortgage, except the mortgage
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outstanding as of the date hereof, shall enter into written agreement with Tenant to the effect that:
(i) in the event of foreclosure, mortgagee's sale pursuant to a foreclosure or under a power of sale, or other action taken under the mortgage by the holder thereof, this Lease and the rights of Tenant hereunder shall not be disturbed but shall continue in full force and effect so long as there shall be no Event of Default that is continuing hereunder.
(ii) In the event of foreclosure of any mortgage described in paragraph (a) above, or of a sale to any party pursuant to a foreclosure or under a power of sale contained in such mortgage, and so long as no Event of Default exists hereunder, this Lease shall not be terminated or affected thereby, but shall continue in full force and effect as a direct lease between Tenant and the holder of such foreclosed mortgage, or any party acquiring title to the Demised Premises through a foreclosure sale or otherwise and Tenant agrees to attorn to and recognize such holder or other party for such purpose.
(b) The word 'mortgage' as used herein includes mortgages, deeds of trust or other similar instruments, and all modifications, extensions, renewals and replacements thereof, and advance thereunder.
ARTICLE 18 HOLDOVER
18. In the event that Tenant shall continue in occupancy of the Demised Premises after the expiration of the Lease Term hereof, such occupancy shall not be deemed to extend or renew the Lease Term, but such occupancy shall continue as a tenancy at will from month to month upon the covenants, provisions and conditions herein contained at the Minimum Basic Rental in effect during the last lease year of the Lease Term, prorated and payable for the period of such occupancy. This Article shall not be construed as giving Tenant any right to hold over after the expiration of the Lease Term.
ARTICLE 19 WAIVERS
19. Failure of either party to complain of any act or omission on the part of the other party, no matter how long the same may continue, shall not be deemed to be a waiver by said party of any of its rights hereunder. No waiver by either party at any time, express or implied of any breach of any other provision of this Lease or a consent to any subsequent breach of the same or any other provision. If any action by either party shall require the consent or approval of the other party, the other party's consent to or approval of such action on any one occasion shall not be deemed a consent to or approval of said action on any subsequent occasion or a consent to or approval of any other action on the same or any subsequent occasion. Any and all rights and remedies which either party may have under this Lease or by operation of law, either at law or in equity upon any breach, shall be distinct, separate and cumulative and shall not be deemed inconsistent with each
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other; and no one of them, whether exercised by said party or not shall be deemed to be in exclusion of any other; and any two or more or all of such rights and remedies may be exercised at the same time.
ARTICLE 20 INDEMNITY OF LANDLORD BY TENANT
20. Tenant will indemnify and defend Landlord and save Landlord harmless from and against any and all claims, actions, damages, liability, fines, orders of governmental authority and expenses (i) in connection with, related to or arising out of loss, damage or injury to persons or property occurring in, upon or about the Demised Premises, unless caused by the negligence of Landlord, its employees, agents or contractors, or Landlord's failure to perform any of its obligations under this Lease; or (ii) occasioned wholly or in part by any negligent act or omission of Tenant, Tenant's agents, contractors, subtenants, licensees, concessionaires, customers or employees. This indemnification expressly includes all claims, actions, damages, liability, fines and orders of governmental authority related to the Release of Hazardous Substances, as those capitalized terms are defined in Article 11(b) hereof, Released during the Term of this Lease, or at any time, if directly caused by Tenant or Tenant's agents, contractors, subtenants, licensees, concessionaires, customers or employees. In case, as a result of Tenant's actions, Landlord shall, without fault on its part, be made a party to any litigation commenced by or against Tenant, then Tenant shall protect and hold Landlord harmless and shall pay all reasonable and actual third party costs, expenses, including reasonable attorney's fees incurred or paid by Landlord in connection with such litigation. Tenant expressly assumes all liabilities with respect to any property owned by it, its subtenants, concessionaires, contractors, employees, invitees or others and located in, on or about the Demised Premises.
ARTICLE 21 NOTICES
21. All notices and other communications authorized or required hereunder shall be in writing and shall be given by mailing the same by certified mail or registered mail, return receipt requested, postage prepaid, and any such notice or other communication shall be deemed to have been given when sent. If intended for Landlord, the same shall be mailed to Landlord 134 Upland Road, Waban, Massachusetts 02468, or at such other address as Landlord may hereafter designate by notice to Tenant; and if intended for Tenant, the same shall be mailed to Tenant at the Demised Premises, or at such other address or addresses as Tenant may hereafter designate by notice to Landlord.
ARTICLE 22 HEADINGS
22. The Section headings in this Lease are for the purposes of convenience and headings only, and the words contained therein shall in no way be held to explain, modify or aid in the interpretation, construction or meaning of the provisions of this Lease.
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ARTICLE 23 NON-RECOURSE
23. Tenant shall neither assert nor seek to enforce any claim for breach of this Lease against any of Landlord's assets other than Landlord's interest in the Demised Premises (including any proceeds therefrom) and Tenant agrees to look solely to such interest for the satisfaction of any liability of Landlord under this Lease. It is specifically agreed that in no event shall either party (or their respective officers, trustees, directors, partners, beneficiaries, joint venturers, members, stockholders or other principals or representatives disclosed or undisclosed, thereof) ever be personally liable for any liability hereunder, unless such party’s conduct giving rise to any such liability shall be determined to be intentional or in wanton disregard for the applicable law and/or terms and conditions set forth in this Lease. In no event shall Tenant be liable for consequential or indirect damages.
ARTICLE 24 AFFIRMATIVE COVENANTS
24. Tenant covenants at its expense at all times during the Lease Term and such further time as the Tenant occupies the Demised Premises or any part thereof:
A. To store all trash and refuse within the Demised Premises and to attend to the daily disposal thereof by use of a dumpster serviced by an independent disposal service company (the dumpster to be enclosed by a stockade fence);
B. Except for services to be expressly provided by Landlord hereunder (if any), at Tenant's expense to keep the Demised Premises clean, neat and in good order, repair and condition, and, damage by fire or other casualty covered by Landlord's insurance (if any) excepted, at the Tenant's expense to keep all glass, including that in windows, doors, and skylights, clean and in good condition, and to replace any glass which may be injured or broken with glass of the same quality;
C. To make all repairs, alterations, additions or replacements (including items considered capital investments) to the Demised Premises required by any applicable law or ordinance or any order or regulation of any public authority because of the Tenant's use of the Demised Premises or because of the use of the Demised Premises in general; to keep the Demised Premises equipped with all safety appliances so required because of such use; to procure any licenses and permits required for any such use; to take all action necessary to ensure the safe and proper treatment of all combustible fibers as required under Section 409.6 of the Massachusetts State Building Code and any other applicable law, ordinance or regulation; and to comply with the orders and regulations of all governmental authorities, except that the Tenant may defer compliance so long as the validity of any such law, ordinance, order or regulation shall be contested by the Tenant in good faith and by appropriate legal proceedings, if the Tenant first gives the Landlord appropriate assurance against any loss, cost or expense on account thereof;
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D. To pay promptly when due the entire cost of any work to the Demised Premises undertaken by the Tenant so that the Demised Premises shall at all times be free of liens for labor and materials; promptly to clear the record of any notice of any such lien; to procure all necessary permits before undertaking such work; to do all of such work in a good and workmanlike manner, employing materials of good quality and complying with all governmental requirements; and to save the Landlord harmless and indemnified from all injury, loss, claims or damage to any person or property occasioned by or growing out of such work; provided, however, Tenant shall have the right to withhold payment of any such lien filed against the Demised Premises so long as Tenant shall be contesting same through proper proceedings.
E. To maintain in responsible companies qualified to do business in Massachusetts and in good standing therein, fire insurance with such extended coverage endorsements as the Landlord may from time to time require covering all of the Tenant's Alterations including all fixtures, furniture, furnishings, floor coverings and equipment in the Demised Premises to the extent of their replacement cost; and to deposit promptly with the Landlord certificates for such insurance bearing endorsement that the policies will not be canceled or materially changed until after twenty (20) days written notice to the Landlord;
F. To permit the Landlord and its agents to examine the Demised Premises at reasonable times during regular business hours of Tenant after reasonable notice and to show the Demised Premises to prospective purchasers, lenders and tenants (in the case of prospective tenants, only during the twelve months next preceding the expiration of the Lease Term) and to permit access to the Demised Premises during business hours of Tenant and at all times in an emergency so that Landlord or its agents, employees, or independent contractors may perform all maintenance, repairs, replacements, restorations or other obligations which Landlord is obligated to perform under this Lease (if any) or which Landlord in its sole discretion deems necessary or desirable, Landlord hereby agreeing to perform all such work in a manner not to unreasonably interfere with the conduct of Tenant's business and to give Tenant at least five (5) days notice of its intention to perform such work except in an emergency threatening damage to persons or property, in which event Landlord may perform such work without notice and may enter the Demised Premises, forcibly if necessary, to perform such work;
G. That the Landlord shall not be required to supply any service to the Demised Premises except as expressly stipulated in this Lease and shall not be liable to anyone for interruption of an agreed service due to any accident or casualty, to the making of repairs, alterations or additions, to labor difficulties, to trouble in obtaining fuel, electricity, service or supplies or to any cause beyond the Landlord's reasonable control; that all personal property from time to time upon the Demised Premises shall be at the sole risk of the Tenant; and that the Landlord shall not be liable for any damage which may be caused to the Demised Premises or the contents thereof by the bursting or leaking of or
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condensation from any plumbing, cooling or heating pipe or fixtures or theft or from any other cause;
H. To make all necessary repairs and replacements, whether structural or nonstructural, exterior or interior, ordinary or extraordinary, to the Building and the Demised Premises and to keep or cause to be kept the foundations and roof of the Building, the structure of the floors and walls thereof (excluding finish coverings and all glass), the water, plumbing, heating, electric, elevator and sewage systems in the Building or otherwise located in or on the Demised Premises and any pipes, ducts, conduits and wires leading through and servicing any parts of the Building in good order, repair and condition, exclusive of any work required because of damage caused by any act, omission or negligence of the Landlord, or his employees, agents or contractors. Tenant shall commence any such repair as soon as reasonably practicable whether or not it has received notice from Landlord that the same is necessary. The provisions of this Section shall not apply in the case of damage or destruction by fire or other casualty or by Condemnation, in which events the obligations of the Tenant shall be controlled by Articles 8 and 9;
I. Intentionally Omitted.
J. At the termination of this Lease: all Alterations, additions, fixtures, furnishings, of floor coverings and equipment upon the Demised Premises and any replacements therefor, including all air-conditioning or heating systems, paneling, decorations, partitions, railings, affixed to the realty, except furniture, movable trade fixtures and all production and research and development equipment installed at the expense of Tenant, shall become the property of the Landlord and shall remain upon, and be surrendered with, the Demised Premises as a part thereof, clean and in good order, repair and condition, reasonable wear and tear, damage by fire or other casualty covered by Landlord's insurance (if any) excepted, without compensation to Tenant; Landlord agrees that at the time it gives its consent to any Alteration Tenant may request, it shall also advise Tenant as to whether it will require Tenant to remove such at the expiration of this Lease. Landlord agrees that as of the Commencement Date, there are no alterations or parts or portions of the Demised Premises which Tenant shall be required to remove at the expiration of the Lease Term (as such may be extended) other than Tenant's furniture, movable trade fixtures and all production and research and development equipment;
K. From time to time, for delivery to a prospective purchaser, mortgagee, lessor, or lessee of all or a portion of the Demised Premises or any assignee thereof, upon not less than thirty (30) days prior written request by Landlord, to execute, acknowledge and deliver to Landlord a statement in writing certifying: (a) that this Lease is unamended (or, if there have been any amendments, stating the amendments); (b) that it is then in full force and effect, if that be the fact; (c) the extent to which any options to extend have been exercised; (d) the dates to which Minimum Basic Rent and Additional Rent and any other payments required to be paid to Landlord have been paid; (e) any defenses, offsets and counterclaims which Tenant, at the time of the execution of said statement, has against
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Tenant's obligation to pay rent and to perform its other obligations under this Lease or that there are none, if that be the fact. Any such statement may be relied upon by any purchaser, mortgagee, lessor, or lessee of all or a portion of the Demised Premises, or any assignee thereof;
L. To remain fully obligated under this Lease notwithstanding any assignment or sublease or any indulgence granted by the Landlord to the Tenant or to any assignee or sub lessee;
M. To comply with all of the rules and regulations of the Fire Insurance Rating Organization having jurisdiction and any similar body. If due to any failure by the Tenant to comply with the foregoing sentence (whether or not any use to which the Demised Premises are put was permitted or consented to by the Landlord), the fire insurance rate applicable to the Demised Premises, or the contents thereof (including rent insurance relating thereto) shall be higher than that which would be applicable to the least hazardous use legally permitted, the Tenant agrees to pay the Landlord as Additional Rent such portion of the premiums for all fire insurance policies in force with respect to the Demised Premises and the contents thereof as shall be attributable to such higher rate. The Tenant shall have no cooking facilities in the Demised Premises unless the same are protected by CO2 or dry chemical extinguishing systems in accordance with the standards of the National Fire Protection Association or other appropriate agency so as to qualify for the maximum credit available in the fire insurance rate computation; and
N. To make its own arrangements for electric, telephone, gas and water service, in its own name, and to promptly pay therefor, including the installation thereof and of all meters. The Tenant shall pay all charges for any utilities or service used by it.
25. Tenant covenants at all times during the Lease Term and such further time as the Tenant occupies the Demised Premises or any part thereof:
A. Not to overload, deface or otherwise harm the Demised Premises; nor commit any nuisance, nor permit the emission of any objectionable noise or odor; nor bum any trash or refuse in the Demised Premises; nor make any use of the Demised Premises which is improper, offensive or contrary to any applicable law or ordinance or which will invalidate or increase the cost of any of the Landlord's insurance; nor use any advertising medium that may constitute a nuisance, such as loud-speakers, sound amplifiers, phonographs or radio or television broadcasts in a manner to be heard outside the Demised Premises;
B. Not to permit the painting or placing of any signs, placards or other advertising media, aerials, antennas or flagpoles, or the like, without on each occasion obtaining prior written consent of the Landlord. Tenant agrees that all signs will be required to conform to the architectural and construction standards of the Landlord and to
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be consistent with the general design of the Demised Premises in appropriate proportion to the size of the wall or other surface to which they are affixed; and not to install any neon, flashing, or moving sign.
ARTICLE 26 AMENDMENT
26. No amendment, modification, or termination or waiver of any provision of this Lease shall be effective unless the same shall be in writing and signed by the Tenant and the Landlord. Each amendment, modification, termination or waiver of this Lease shall be effective only in the specific instance and for the specific purpose for which it was given.
27. THIS LEASE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS AND DECISIONS OF THE COMMONWEALTH OF MASSACHUSETTS, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.
ARTICLE 28 BENEFIT
28. This Lease shall be binding upon and inure to the benefit of the Tenant and Landlord and is enforceable by each and their respective successors, permitted assigns, heirs and executors. This Lease shall not be construed so as to confer any right or benefit upon any person or entity, other than the Tenant and Landlord and their respective successors and permitted assigns.
ARTICLE 29 HEADINGS
29. The headings used in this Lease are for convenience of reference only and shall not be deemed to limit, characterize or in any way affect the interpretation of any provision of this Lease.
ARTICLE 30 SAVING CLAUSE
30. Whenever possible each provision of this Lease shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Lease shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Lease.
ARTICLE 31 INTEGRATION
31. This Lease represents the final agreement among the parties as to the subject matter hereof and thereof and may not be contradicted by evidence of
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prior, contemporaneous, or subsequent oral agreements of the parties; and there are no unwritten oral agreements among the parties.
ARTICLE 32 BROKER
32. Tenant represents that it has not dealt directly with or indirectly with any broker other than Hunneman, which has been compensated by Tenant pursuant to a separate agreement, and that no other broker has negotiated or participated in negotiations of this Lease or is entitled to any commission in connection therewith. Landlord represents that it has not dealt directly with or indirectly with any broker and that no other broker has negotiated or participated in negotiations of this Lease or is entitled to any commission in connection therewith.
ARTICLE 33 COUNTER PARTS
33. This Lease may be executed in a number of identical counterparts, each of which for all purposes is deemed an original, and all of which constitute collectively one agreement; but in making proof of this Lease, it shall not be necessary to produce or account for more than one such counterpart.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have executed this Lease under seal as of the day and year first above written.
LESSOR
229 Andover Street, LLC
Witness: ____________________ By:_/s/ Chris Berardi________________________
Chris Berardi, its Manager
LESSEE
AdvanSource Biomaterials Corporation
Witness: _/s/ David Dryer__________ By: _/s/ Michael F. Adams__________
Name: Michael F. Adams
Title: President and CEO
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LEGAL DESCRIPTION
That certain parcel of land known as 229 Andover Street, Wilmington, Massachusetts as referenced in Certificate of Title No. 28060, more particularly, described as follows:
Northwesterly by Andover Street, two hundred ten (210) feet;
Northeasterly by lot 10, five hundred forty six and 6/100 feet (546.06)
Southeasterly by State (Route 125) Highway, three hundred fifteen and 24/100 (315.24) feet; and
Southwesterly by lot 8 by two lines measuring together, three hundred forty eight and 38/100 (348.38) feet.
All of said boundaries are determined by the Massachusetts and Court to be located as shown on subdivision plan 3984-N, as drawn by Dana F. Perkins & Sons Inc., Surveyors, dated January 9, 1967, as approved by the Court, filed in the Land Registration Office, a copy of a portion of which is filed with Certificate of Title 15932, and said land is shown as Lot Twelve (12) on said plan.
EXHIBIT B
Minimum Basic Rent Schedule
Lease between 229 Andover Street, LLC. and AdvanSource Biomaterials Corporation
Annual Period Annual Minimum Basic Rent
Year 1 $280,000
Year 2 $280,000
Year 3 $335,000
Year 4 $335,000
Year 5 $335,000
Year 6 $345,050
Year 7 $355,401
Year 8 $366,064
Year 9 $377,045
Year 10 $388,357
Year 11 $400,008
Year 12 $412,008
Year 13 $424,368
Year 14 $437,009
Year 15 $450,212