EXHIBIT 10.11
XXXXXXXX PROPERTIES MANAGEMENT, INC.
STANDARD FORM
COMMERCIAL LEASE 598325-DJC-B
In consideration of the covenants herein contained, Xxxxxxxx Properties
Management, Inc., hereinafter called LESSOR, does hereby lease to CardioTech
International, Inc. (a MA corp.), 00 Xxxxx Xxxxxx, Xxxxxx, XX 00000 hereinafter
called LESSEE, the following described premises, hereinafter called the leased
premises: approximately 15,788 square feet at 00-X Xxxxxxx Xxxxxx, Xxxxxx, XX
00000.
TO HAVE AND HOLD the leased premises for a term of five (5) years commencing at
noon on September 1, 1998 and ending at noon on August 30, 2003 unless sooner
terminated as herein provided. LESSOR and LESSEE now covenant and agree that the
following terms and conditions shall govern this lease during the term hereof
and for such further time as LESSEE shall hold the leased premises.
1. RENT. LESSEE shall pay to LESSOR base rent at the rate of one hundred
eighty eight thousand six hundred sixty six (188,666.00) U.S. dollars per year,
drawn on a U.S. bank, payable in advance in monthly installments of $15,722.16
on the first day in each calendar month in advance, the first monthly payment to
be made upon LESSEE's execution of this lease, including payment in advance of
appropriate fractions of a monthly payment for any portion of a month at the
commencement or end of said lease term. All payments shall be made to LESSOR or
agent at 000 Xxxx Xxxxxxxx Xxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, or at such other
place as LESSOR shall from time to time in writing designate. If the "Cost of
Living" has increased as shown by the Consumer Price Index (Boston,
Massachusetts, all items, all urban consumers), U.S. Bureau of Labor Statistics,
the amount of base rent due during each calendar year of this lease and any
extensions thereof shall be annually adjusted in proportion to any increase in
the Index. All such adjustments shall take place with the rent due on January 1
of each year during the lease term. The base month from which to determine the
amount of each increase in the Index shall be January 1998, which figure shall
be compared with the figure for November 1999, and each November thereafter to
determine the percentage increase (if any) in the base rent to be paid during
the following calendar year. In the event that the Consumer Price Index as
presently computed is discontinued as a measure of "Cost of Living" changes, any
adjustment shall then be made on the basis of a comparable index then in general
use.
2. SECURITY DEPOSIT. LESSEE shall pay to LESSOR a security deposit in
the amount of thirty nine thousand six hundred (39,600.00) U.S. dollars upon the
execution of this lease by LESSEE, which shall be held as security for LESSEE's
performance as herein provided and refunded to LESSEE without interest at the
end of this lease, subject to LESSEE's satisfactory compliance with the
conditions hereof. LESSEE may not apply the security deposit to payment of the
last month's rent. In the event of any default or breach of this lease by
LESSEE, LESSOR may immediately apply the security deposit first to any
unamortized improvements completed for LESSEE's occupancy, then to offset any
outstanding invoice or other payment due to LESSOR, with the balance applied to
outstanding rent. If all or any portion of the security deposit is applied to
cure a default or breach during the term of the lease, LESSEE shall be
responsible for restoring said deposit forthwith, and failure to do so shall be
considered a substantial default under the lease. LESSEE's failure to remit the
full security deposit or any portion thereof when due shall also constitute a
substantial lease default. Until such time as LESSEE pays the security deposit
and first months rent, LESSOR may declare this lease null and void for failure
of consideration.
3. USE OF PREMISES. LESSEE shall use the leased premises only for the
purpose of office and manufacturing space.
4. ADDITIONAL RENT. LESSEE shall pay to LESSOR as additional rent its
proportionate share (14.34%) (based on square footage leased by LESSEE as
compared with the total leaseable square footage of the building of which the
leased premises are a part) of any increase in the real estate taxes levied
against the land and building of which the leased premises are a part
(hereinafter called the building), whether such increase is caused by an
increase in the tax rate, or the assessment on the property, or a change in the
method of determining real estate taxes. LESSEE shall make payment within thirty
(30) days of written notice from LESSOR that such increased taxes are payable,
and any additional rent shall be prorated should the lease terminate before the
end of any tax year. The base from which to determine the amount of any increase
in taxes shall be the rate and the assessment in effect as of July 1, 1997.
5. UTILITIES. LESSOR shall provide equipment per LESSOR's building
standard specifications to heat the leased premises in season and to cool all
office areas between May 1 and November 1. LESSEE shall pay all charges for
utilities used on the leased premises, including electricity, gas, oil, water
and sewer. LESSEE shall pay the utility provider or LESSOR, as applicable, for
all such utility charges as determined by separate meters serving the leased
premises and/or as a proportionate share of the utility charges for the building
if not separately metered. LESSEE shall also pay LESSOR a proportionate share of
any other fees and charges relating in any way to utility use at the building.
No plumbing, construction or electrical work of any type shall be done without
LESSOR's prior written approval and LESSEE obtaining the appropriate municipal
permit.
6. COMPLIANCE WITH LAWS. LESSEE acknowledges that no trade, occupation,
activity or work shall be conducted in the leased premises or use made thereof
which may be unlawful, improper, noisy, offensive, or contrary to any applicable
statute, regulation, ordinance or bylaw. LESSEE shall keep all employees working
in the leased premises covered by Workers Compensation Insurance and shall
obtain any licenses and permits necessary for LESSEE's occupancy. LESSEE shall
be responsible for causing the leased premises and any alterations by LESSEE
which are allowed hereunder to be in full compliance with any applicable
statute, regulation, ordinance or bylaw.
7. FIRE, CASUALTY EMINENT DOMAIN. Should a substantial portion of the
leased premises, or of the property of which they are a part, be substantially
damaged by fire or other casualty, or be taken by eminent domain, LESSOR may
elect to terminate this lease. When such fire, casualty, or taking renders the
leased premises substantially unsuitable for their intended use, a just and
proportionate abatement of rent shall be made, and LESSEE may elect to terminate
this lease if: (a) LESSOR fails to give written notice within thirty (30) days
of intention to restore the leased premises, or (b) LESSOR fails to restore the
leased premises to a condition substantially suitable for their intended use
within ninety (90) days of said fire, casualty or taking. LESSOR reserves all
rights for damages or injury to the leased premises for any taking by eminent
domain, except for damage to LESSEE's property or equipment.
8. FIRE INSURANCE. LESSEE shall not permit any use of the leased
premises which will adversely affect or make voidable any insurance on the
property of which the leased premises are a part, or on the contents of said
property, or which shall be contrary to any law or regulation from time to time
established by the Insurance Services Office (or successor), local Fire
Department, LESSOR's insurer, or any similar body. LESSEE shall on demand
reimburse LESSOR, and all other tenants, all extra insurance premiums caused by
LESSEE's use of the leased premises. LESSEE shall not vacate the leased premises
or permit same to be unoccupied other than during LESSEE's customary non-
business days or hours.
9. MAINTENANCE OF PREMISES. LESSOR will be responsible for all
structural maintenance of the leased premises and for the normal daytime
maintenance of all space heating and cooling equipment, sprinklers, doors,
locks, plumbing, and electrical wiring, but specifically excluding damage caused
by the careless, malicious, willful, or negligent acts of LESSEE or others,
chemical, water or corrosion damage from any source, and maintenance of any non
"building standard" leasehold improvements. LESSEE agrees to maintain at its
expense all other aspects of the leased premises in the same condition as they
are at the commencement of the term or as they may be put in during the term of
this lease, normal wear and tear and damage by fire or other casualty only
excepted, and whenever necessary, to replace light bulbs, plate glass and other
glass therein, acknowledging that the leased premises are now in good order and
the light bulbs and glass whole. LESSEE will properly control or vent all
solvents, degreasers, smoke, odors, etc. and shall not cause the area
surrounding the leased premises to be in anything other than a neat and clean
condition, depositing all waste in appropriate receptacles. LESSEE shall be
solely responsible for any damage to plumbing equipment, sanitary lines, or any
other portion of the building which results from the discharge or use of any
acid or corrosive substance by LESSEE. LESSEE shall not permit the leased
premises to be overloaded, damaged, stripped or defaced, nor suffer any waste,
and will not keep animals within the leased premises. If the leased premises
include any wooden mezzanine type space, the floor capacity of such space is
suitable only for office use, light storage or assembly work. LESSEE will
protect any carpet with plastic or masonite chair pads under any rolling chairs.
Unless heat is provided at LESSORS expense, LESSEE shall maintain sufficient
heat to prevent freezing of pipes or other damage. Any increase in air
conditioning equipment or electrical capacity or any installation or maintenance
of equipment which is necessitated by some specific aspect of LESSEE's use of
the leased premises shall be LESSEE's sole responsibility, at LESSEE's expense
and subject to LESSOR's prior written consent. All maintenance provided by
LESSOR shall be during LESSOR's normal business hours.
10. ALTERATIONS. LESSEE shall not make structural alterations or
additions of any kind to the leased premises, but may make nonstructural
alterations provided LESSOR consents thereto in writing. All such allowed
alterations shall be at LESSEE's expense and shall conform with LESSOR's
construction specifications. If LESSOR or LESSOR's agent provides any services
or maintenance for LESSEE in connection with such alterations or otherwise under
this lease, any just invoice will be promptly paid. LESSEE shall not permit any
mechanics' liens, or similar liens, to remain upon the leased premises in
connection with work of any
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character performed or claimed to have been performed at the direction of LESSEE
and shall cause any such lien to be released or removed forthwith without cost
to LESSOR. Any alterations or additions shall become part of the leased premises
and the property of LESSOR. Any alterations completed by LESSOR or LESSEE shall
be LESSOR's "building standard" unless noted otherwise. LESSOR shall have the
right at any time to change the arrangement of parking areas, stairs, walkways
or other common areas of the building.
11. ASSIGNMENT OR SUBLEASING. LESSEE shall not assign this lease or
sublet or allow any other firm or individual to occupy the whole or any part of
the leased premises without LESSOR's prior written consent. Notwithstanding such
assignment or subleasing, LESSEE and GUARANTOR shall remain liable to LESSOR for
the payment of all rent and for the full performance of the covenants and
conditions of this lease. LESSEE shall pay LESSOR promptly for legal and
administrative expenses incurred by LESSOR in connection with any consent
requested hereunder by LESSEE.
12. SUBORDINATION. This lease shall be subject and subordinate to any and
all mortgages and other instruments in the nature of a mortgage, now or at any
time hereafter, and LESSEE shall, when requested, promptly execute and deliver
such written instruments as shall be necessary to show the subordination of this
lease to said mortgages or other such instruments in the nature of a mortgage.
13. LESSOR'S ACCESS. LESSOR or agents of LESSOR may at any reasonable
time enter to view the leased premises, to make repairs and alterations as
LESSOR should elect to do for the leased premises, the common areas or any other
portions of the building, to make repairs which LESSEE is required but has
failed to do, and to show the leased premises to others.
14. SNOW REMOVAL. The plowing of snow from all roadways and unobstructed
parking areas shall be at the sole expense of LESSOR. The control of snow and
ice on all walkways, steps and loading areas serving the leased premises and all
other areas not readily accessible to plows shall be the sole responsibility of
LESSEE. Notwithstanding the foregoing, however, LESSEE shall hold LESSOR and
OWNER harmless from any and all claims by LESSEE's agents, representatives,
employees, callers or invitees for damage or personal injury resulting in any
way from snow or ice on any area serving the leased premises, except for claims
arising out of LESSOR's negligence.
15. ACCESS AND PARKING. LESSEE shall have the right without additional
charge to use parking facilities provided for the leased premises in common with
others entitled to the use thereof. Said parking areas plus any stairs,
corridors, walkways, elevators or other common areas (hereinafter collectively
called the common areas) shall in all cases be considered a part of the leased
premises when they are used by LESSEE or LESSEE's employees, agents, callers or
invitees. LESSEE will not obstruct in any manner any portion of the building or
the walkways or approaches to the building, and will conform to all rules and
regulations now or hereafter made by LESSOR for parking, and for the care, use,
or alteration of the building, its facilities and approaches. LESSEE further
warrants that LESSEE will not permit any employee or visitor to violate this or
any other covenant or obligation of LESSEE. No unattended parking will be
permitted between 7:00 PM and 7:00 AM without LESSOR's prior written approval,
and from December 1 through March 31 annually, such parking shall be permitted
only in those areas specifically designated for assigned overnight parking.
Unregistered or disabled vehicles, or storage trailers of any type, may not be
parked at any time. LESSOR may tow, at LESSEE's sole risk and expense, any
misparked vehicle belonging to LESSEE or LESSEE's agents, employees, invitees or
callers, at any time. LESSOR shall not be responsible for providing any security
services for the leased premises.
16. LIABILITY. LESSEE shall be solely responsible as between LESSOR and
LESSEE for deaths or personal injuries to all persons whomsoever occurring in or
on the leased premises (including any common areas that are considered part of
the leased premises hereunder) from whatever cause arising, and damage to
property to whomsoever belonging arising out of the use, control, condition or
occupation of the leased premises by LESSEE; and LESSEE agrees to indemnify and
save harmless LESSOR and OWNER from any and all liability, including but not
limited to costs, expenses, damages, causes of action, claims, judgments and
attorneys fees caused by or in any way growing out of any matters aforesaid,
except for death, personal injuries or property damage directly resulting from
the negligence or willful misconduct of LESSOR.
17. INSURANCE. LESSEE will secure and carry at its own expense a
commercial general liability policy insuring LESSEE, LESSOR and OWNER against
any claims based on bodily injury (including death) or property damage arising
out of the condition of the leased premises (including any common areas that are
considered part of the leased premises hereunder) or their use by LESSEE, such
policy to insure LESSEE, LESSOR and OWNER against any claim up to One Million
(1,000,000) Dollars in the case of any one accident involving bodily injury
(including death), and up to One Million (1,000,000) Dollars against any claim
for damage to property. LESSOR and OWNER shall be included in each such policy
as additional insureds using ISO Form CG 20 26 11 85 or some other form approved
by LESSOR. LESSEE will file with LESSOR prior to occupancy certificates and any
applicable
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riders or endorsements showing that such insurance is in force, and thereafter
will file renewal certificates prior to the expiration of any such policies. All
such insurance certificates shall provide that such policies shall not be
cancelled without at least ten (10) days prior written notice to each insured.
In the event LESSEE shall fail to provide or maintain such insurance at any time
during the term of this lease, then LESSOR may elect to contract for such
insurance at LESSEE's expense.
18. SIGNS. LESSOR authorizes, and LESSEE at LESSEE's expense agrees to
erect promptly upon commencement of this lease, signage for the leased premises
in accordance with LESSOR's building standards for style, size, location, etc.
LESSEE shall obtain the prior written consent of LESSOR before erecting any sign
on the leased premises, which consent shall include approval as to size,
wording, design and location. LESSOR may remove and dispose of any sign not
approved, erected or displayed in conformance with this lease.
19. BROKERAGE. LESSEE warrants and represents to LESSOR that LESSEE has
dealt with no broker except Xxxx St. Xxxx of Phoenix Corporate Services or third
person with respect to this lease, and LESSEE agrees to indemnity LESSOR against
any brokerage claims arising by virtue of this lease. LESSOR warrants and
represents to LESSEE that LESSOR has employed no exclusive broker or agent in
connection with the letting of the leased premises.
20. DEFAULT AND ACCELERATION OF RENT. In the event that: (a) any
assignment for the benefit of creditors, trust mortgage, receivership or other
insolvency proceeding shall be made or instituted with respect to LESSEE or
LESSEE's property; (b) LESSEE shall default in the observance or performance of
any of LESSEE's covenants, agreements, or obligations hereunder, other than
substantial monetary payments as provided below, and such default shall not be
corrected within twenty (20) days after written notice thereof; or (c) LESSEE
vacates the leased premises without continuing to pay rent, then LESSOR shall
have the right thereafter, while such default continues and without demand or
further notice, to re-enter and take possession of the leased premises, to
declare the term of this lease ended, and to remove LESSEE's effects, without
being guilty of any manner of trespass, and without prejudice to any remedies
which might be otherwise used for arrears of rent or other default or breach of
the lease. If LESSEE shall default in the payment of the security deposit, rent,
taxes, substantial invoice from LESSOR or LESSOR's agent for goods and/or
services or other sum herein specified, and such default shall continue for ten
(10) days after written notice thereof, and, because both parties agree that
nonpayment of said sums when due is a substantial breach of the lease, and,
because the payment of rent in monthly installments is for the sole benefit and
convenience of LESSEE, then in addition to the foregoing remedies the entire
balance of rent which is due hereunder shall become immediately due and payable
as liquidated damages. LESSOR, without being under any obligation to do so and
without thereby waiving any default, may remedy same for the account and at the
expense of LESSEE. If LESSOR pays or incurs any obligations for the payment of
money in connection therewith, such sums paid or obligations incurred plus
interest and costs, shall be paid to LESSOR by LESSEE as additional rent. Any
sums received by LESSOR from or on behalf of LESSEE at any time shall be applied
first to any unamortized improvements completed for LESSEE's occupancy, then to
offset any outstanding invoice or other payment due to LESSOR, with the balance
applied to outstanding rent. LESSEE agrees to pay reasonable attorney's fees
and/or administrative costs incurred by LESSOR in enforcing any or all
obligations of LESSEE under this lease at any time. LESSEE shall pay LESSOR
interest at the rate of eighteen (18) percent per annum on any payment from
LESSEE to LESSOR which is past due.
21. NOTICE. Any notice from LESSOR to LESSEE relating to the leased
premises or to the occupancy thereof shall be deemed duly served when served by
constable, or sent to the leased premises by certified mail, return receipt
requested, postage prepaid, addressed to LESSEE. Any notice from LESSEE to
LESSOR relating to the leased premises or to the occupancy thereof shall be
deemed duly served when served by constable, or delivered to LESSOR by certified
mail, return receipt requested, postage prepaid, addressed to LESSOR at 000 Xxxx
Xxxxxxxx Xxxx, Xxxxxx, XX 00000 or at LESSOR's last designated address. No oral
notice or representation shall have any force or effect. Time is of the essence
in the service of any notice.
22. OCCUPANCY. In the event that LESSEE takes possession of said leased
premises prior to the start of the lease term, LESSEE will perform and observe
all of LESSEE's covenants from the date upon which LESSEE takes possession
except the obligation for the payment of extra rent for any period of less than
one month. LESSEE shall not remove LESSEE's goods or property from the leased
premises other than in the ordinary and usual course of business, without having
first paid and satisfied LESSOR for all rent which may become due during the
entire term of this lease. In the event that LESSEE continues to occupy or
control all or any part of the leased premises after the agreed termination of
this lease without the written permission of LESSOR, then LESSEE shall be liable
to LESSOR for any and all loss, damages or expenses incurred by LESSOR, and all
other terms of this lease shall continue to apply except that rent shall be due
in full monthly installments at a rate of one hundred fifty (150) percent of
that which would otherwise be due under this lease, it being understood between
the parties that such extended occupancy is as a tenant at sufferance and is
solely for the benefit and convenience of LESSEE and as such has greater rental
value. LESSEE's control or occupancy of all or any part of the leased premises
beyond noon on the last day of any monthly rental period shall constitute
4
LESSEE's occupancy for an entire additional month, and increased rent as
provided in this section shall be due and payable immediately in advance.
LESSOR's acceptance of any payments from LESSEE during such extended occupancy
shall not alter LESSEE's status as a tenant at sufferance.
23. FIRE PREVENTION. LESSEE agrees to use every reasonable precaution
against fire and agrees to provide and maintain approved, labeled fire
extinguishers, emergency lighting equipment, and exit signs and complete any
other modifications within the leased premises as required or recommended by the
Insurance Services Office (or successor organization), OSHA, the local Fire
Department, or any similar body.
24. OUTSIDE AREA. Any goods, equipment, or things of any type or
description held or stored in any common area without LESSOR's prior written
consent shall be deemed abandoned and may be removed by LESSOR at LESSEE's
expense without notice. LESSEE shall maintain a building standard size dumpster
in a location approved by LESSOR, which dumpster shall be provided and serviced
at LESSEE's expense by whichever disposal firm may from time to time be
designated by LESSOR.
25. ENVIRONMENT. LESSEE will so conduct and operate the leased premises
as not to interfere in any way with the use and enjoyment of other portions of
the same or neighboring buildings by others by reason of odors, smoke, exhaust,
smells, noise, pets, accumulation of garbage or trash, vermin or other pests, or
otherwise, and will at its expense employ a professional pest control service if
necessary. LESSEE agrees to maintain efficient and effective devices for
preventing damage to heating equipment from solvents, degreasers, cutting oils,
propellants, etc. which may be present at the leased premises. No hazardous
materials or wastes shall be stored, disposed of, or allowed to remain at the
leased premises at any time, and LESSEE shall be solely responsible for any and
all corrosion or other damage associated with the use, storage and/or disposal
of same by LESSEE.
26. RESPONSIBILITY. Neither LESSOR nor OWNER shall be held liable to
anyone for loss or damage caused in any way by the use, leakage, seepage or
escape of water from any source, or for the cessation of any service rendered
customarily to said premises or buildings, or agreed to by the terms of this
lease, due to any accident, the making of repairs, alterations or improvements,
labor difficulties, weather conditions, mechanical breakdowns, trouble or
scarcity in obtaining fuel, electricity, service or supplies from the sources
from which they are usually obtained for said building, or any cause beyond
LESSOR's immediate control.
27. SURRENDER. LESSEE shall at the termination of this lease remove all
of LESSEE's goods and effects from the leased premises. LESSEE shall deliver to
LESSOR the leased premises and all keys and locks thereto, all fixtures and
equipment connected therewith, and all alterations, additions and improvements
made to or upon the leased premises, whether completed by LESSEE, LESSOR or
others, including but not limited to any offices, partitions, window blinds,
floor coverings (including computer floors), plumbing and plumbing fixtures, air
conditioning equipment and ductwork of any type, exhaust fans or heaters, water
coolers, burglar alarms, telephone wiring, telephone equipment, air or gas
distribution piping, compressors, overhead cranes, hoists, trolleys or
conveyors, counters, shelving or signs attached to walls or floors, all
electrical work, including but not limited to lighting fixtures of any type,
wiring, conduit, EMT, transformers, distribution panels, bus ducts, raceways,
outlets and disconnects, and furnishings or equipment which have been bolted,
welded, nailed, screwed, glued or otherwise attached to any wall, floor,
ceiling, root pavement or ground, or which have been directly wired to any
portion of the electrical system or which have been plumbed to the water supply,
drainage or venting systems serving the leased premises. LESSEE shall deliver
the leased premises sanitized from any chemicals or other contaminants, and
broom clean and in the same condition as they were at the commencement of this
lease or any prior lease between the parties for the leased premises, or as they
were modified during said term with LESSOR's written consent, reasonable wear
and tear and damage by fire or other casualty only excepted. In the event of
LESSEE's failure to remove any of LESSEE's property from the leased premises
upon termination of the lease, LESSOR is hereby authorized, without liability to
LESSEE for loss or damage thereto, and at the sole risk of LESSEE, to remove and
store any such property at LESSEE's expense, or to retain same under LESSOR's
control, or to sell at public or private sale (without notice), any or all of
the property not so removed and to apply the net proceeds of such sale to the
payment of any sum due hereunder, or to destroy such abandoned property. In no
case shall the leased premises be deemed surrendered to LESSOR until the
termination date provided herein or such other date as may be specified in a
written agreement between the parties, notwithstanding the delivery of any keys
to LESSOR.
28. GENERAL. (a) The invalidity or unenforceability of any provision of
this lease shall not affect or render invalid or unenforceable any other
provision hereof. (b) The obligations of this lease shall run with the land, and
this lease shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, except that LESSOR and OWNER shall
be liable only for obligations occurring while lessor, owner, or master lessee
of the premises. (c) Any action or proceeding arising out of the subject matter
of this lease shall be brought by LESSEE within one year after the cause of
action has occurred and only in a court of the Commonwealth of Massachusetts.
(d) If LESSOR is acting under or as agent for any trust or corporation, the
obligations
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of LESSOR shall be binding upon the trust or corporation, but not upon any
trustee, officer, director, shareholder, or beneficiary of the trust or
corporation individually. (e) If LESSOR is not the owner (OWNER) of the leased
premises, LESSOR represents that said OWNER has agreed to be bound by the terms
of this lease unless LESSEE is in default hereof. (f) This lease is made and
delivered in the Commonwealth of Massachusetts, and shall be interpreted,
construed, and enforced in accordance with the laws thereof. (g) This lease was
the result of negotiations between parties of equal bargaining strength, and
when executed by both parties shall constitute the entire agreement between the
parties, superseding all prior oral and written agreements, representations,
statements and negotiations relating in any way to the subject matter herein.
This lease may not be extended or amended except by written agreement signed by
both parties or as otherwise provided herein, and no other subsequent oral or
written representation shall have any effect hereon. (h) Notwithstanding any
other statements herein, LESSOR makes no warranty, express or implied,
concerning the suitability of the leased premises for LESSEE's intended use. (i)
LESSEE agrees that if LESSOR does not deliver possession of the leased premises
as herein provided for any reason, LESSOR shall not be liable for any damages to
LESSEE for such failure, but LESSOR agrees to use reasonable efforts to deliver
possession to LESSEE at the earliest possible date. A proportionate abatement of
rent, excluding the cost of any amortized improvements to the leased premises,
for such time as LESSEE may be deprived of possession of the leased premises,
except where a delay in delivery is caused in any way by LESSEE, shall be
LESSEE's sole remedy. (j) Neither the submission of this lease form, nor the
prospective acceptance of the security deposit and/or rent shall constitute a
reservation of or option for the leased premises, or an offer to lease, it being
expressly understood and agreed that this lease shall not bind either party in
any manner whatsoever until it has been executed by both parties. (k) LESSEE
shall not be entitled to exercise any option contained herein if LESSEE is at
that time in default of any terms or conditions hereof. (l) Except as otherwise
provided herein, LESSOR, OWNER and LESSEE shall not be liable for any special,
incidental, indirect or consequential damages, including but not limited to lost
profits or loss of business, arising out of or in any manner connected with
performance or nonperformance under this lease, even if any party has knowledge
of the possibility of such damages. (m) The headings in this lease are for
convenience only and shall not be considered part of the terms hereof. (n) No
endorsement by LESSEE on any check shall bind LESSOR in any way. (o) LESSOR and
LESSEE hereby waive any and all rights to a jury trial in any proceeding in any
way arising out of this lease.
29. This paragraph has been deleted as it does not apply.
30. WAIVERS, ETC. No consent or waiver express or implied by LESSOR to or
of any breach of any covenant, condition or duty of LESSEE shall be construed as
a consent or waiver to or of any other breach of the same or any other covenant,
condition or duty. If LESSEE is several persons, several corporations or a
partnership, LESSEE's obligations are joint or partnership and also several.
Unless repugnant to the context, "LESSOR' and 'LESSEE" mean the person or
persons, natural or corporate, named above as LESSOR and as LESSEE respectively,
and their respective heirs, executors, administrators, successors and assigns.
31. This paragraph has been deleted as it does not apply.
32. ADDITIONAL PROVISIONS. (Continued on attached rider(s) if necessary.)
--See Attached Rider--
IN WITNESS WHEREOF, LESSOR and LESSEE have hereunto set their hands and
common seals and intend to be legally bound hereby this 26th day of
June, 1998.
LESSOR: XXXXXXXX PROPERTIES MANAGEMENT, INC. LESSEE: CARDIOTECH
INTERNATIONAL, INC.
By: /s/ X.X. Xxxxxxxx By: /s/ Xxxxxxx Xxxxxxx, Ph.D.
___________________________________________ ___________________________
President
GUARANTY
This paragraph has been deleted as it does not apply.
6
XXXXXXXX PROPERTIES MANAGEMENT, INC.
STANDARD FORM
RIDER TO LEASE 598325-DJC-5
The following additional provisions are incorporated into and made a part of the
attached lease:
A. LESSOR, at LESSOR's cost, shall modify the leased premises according to a
mutually agreed upon plan attached hereto before LESSEE takes possession of
the leased premises, except for punch list items which shall be completed
within 30 days following LESSEE's occupancy.
B. * LESSOR, if requested to do so by LESSEE, and at LESSEE's sole expense,
agrees to complete certain improvements and alterations necessitated by
LESSEE's use of the leased premises according to a plan to be mutually
agreed upon by both parties. These alterations shall be considered
"nonbuilding standard" for maintenance purposes pursuant to Section 9 of
the lease.
C. The parties acknowledge and agree that, as of the execution of this lease,
the leased premises have not been demised. Accordingly, upon completion of
the modifications provided for herein, LESSOR shall measure the leased
premises, and if the size does not equal the total number of square feet
set forth in the initial paragraph of this lease, the parties shall execute
an amendment to this lease that adjusts the size and rent accordingly. The
total square footage of the leased premises shall not exceed 20,000
leaseable square feet in the event the size of the leased premises does
change.
D. * Notwithstanding monthly rent as provided in Section 1 above, LESSEE may
deduct $1,315.66 per month from each monthly rental payment due from
September 1,1998 through August 30, 1999 (only), provided LESSOR receives
each such monthly payment on or before the first day of the month for which
that rent is due and LESSEE is not otherwise in default of the lease or in
arrears of any rent or invoice payments. Time is of the essence.
E. * The maximum cumulative "Cost of Living" increase during the initial term
of the lease (only) shall not exceed an average of 8% per calendar year.
F. * Whenever LESSOR's or LESSEE's consent, agreement or approval is required
under this lease, said consent, agreement or approval shall not be
unreasonably withheld or delayed.
G. * LESSEE shall have the right to assign this lease or sublet the leased
premises to an affiliated corporation, namely a corporation in which LESSEE
owns at least a 50 percent interest, a corporation which owns at least a 50
percent interest in LESSEE, a corporation which is under common control
with LESSEE, a corporation with which LESSEE merges, or a corporation which
is formed as a result of a merger or consolidation involving LESSEE,
without further consent from LESSOR, provided LESSEE serves LESSOR with
prior written notice to that effect. The provisions of Section 11 shall
govern said assignment in all other respects.
H. * LESSOR agrees that all work to be performed by LESSOR as set forth in the
plan attached hereto shall be completed in a good and workmanlike manner.
I. * Notwithstanding the commencement date of the lease, LESSEE may occupy the
leased premises as of August 15, 1998, or as soon as substantially
complete, provided this lease has been fully executed, the Security Deposit
and the first month's rent due for the month of September 1998 have been
fully paid, and all required insurance certificates and financing
statements have been produced, without further obligation for the payment
of monthly rent until October 1, 1998. All other terms, covenants and
conditions of this lease shall apply during this rent-free period.
J. * LESSEE shall have access to the leased premises seven days per week, 24
hours per day. LESSEE acknowledges and agrees that LESSOR has no
responsibility for providing any security services for the leased premises,
and LESSEE assumes any and all risks in that regard.
K. * LESSOR and LESSEE do hereby mutually release and discharge each other of
and from all liability and responsibility to the other for any loss, damage
or liability covered by insurance if and to the extent that the written
release and, discharge does not invalidate or adversely affect any
applicable insurance, provided both parties secure and maintain all
insurance required hereunder.
L. During the initial term of this lease, LESSEE shall have the option to
lease approximately 6,100 square feet of additional mezzanine level space
above the leased premises under proportionately the same terms and
conditions as this lease, provided said space is then available for lease
directly from LESSOR, by serving LESSOR with written notice of its desire
to lease said space. Upon receipt of LESSEE's notice, LESSOR shall deliver
to LESSEE an amendment to this lease which incorporates said space into the
leased premises, and LESSEE must then sign and deliver to LESSOR said
amendment within three business days of receipt. LESSOR shall then have two
months from receipt of the signed amendment to deliver said space. If said
space is then under lease to another party, during the two-month delivery
period LESSOR shall either (1) relocate the other party or (2) deliver a
similar amount of additional space elsewhere in one of LESSOR's buildings
on proportionately the same terms and conditions, except that the rental
rate shall be one-half its then current rental rate for the first floor
premises. This election of remedies shall be LESSEE's exclusive remedy for
any failure by LESSOR to deliver possession of said mezzanine level space
or any breach by LESSOR of the provisions of this paragraph. Time is of the
essence.
LESSOR: XXXXXXXX PROPERTIES MANAGEMENT, INC. LESSEE: CARDIOTECH
INTERNATIONAL, INC.
By: /s/ X.X. Xxxxxxxx By: /s/ Xxxxxxx Xxxxxxx, Ph.D.
___________________________________________ ___________________________
President
Date: June 26, 1998
_________________________________________
