Massachusetts-Boston-131 Clarendon Street Sublease - AIDS Action Committee of Massachusetts Inc. and ViaCell Inc.
SUBLEASE
This SUBLEASE (the "Sublease") is dated as of the 27th day of December,
2000 by and between AIDS ACTION COMMITTEE OF MASSACHUSETTS, INC., a
Massachusetts corporation ("SUBLANDLORD"), and VIACELL, INC., a Delaware
corporation ("SUBTENANT").
RECITALS
WHEREAS, pursuant to that certain Lease dated as of June 30, 1988 by and
between John Hancock Mutual Life Insurance Company ("PRIME LANDLORD"), as
landlord, and Sublandlord, as tenant, as amended by (i) that certain First
Amendment to Lease dated June 29, 1988; (ii) that certain Second Amendment to
Lease dated January 6, 1992; (iii) that certain Third Amendment to Lease dated
January 11, 1993; (iv) that certain Fourth Amendment to Lease dated June 9, 1994
and (v) that certain Fifth Amendment to Lease dated as of December 2, 1997 (as
amended, the "PRIME LEASE"), a copy of which Prime Lease is attached hereto as
EXHIBIT A, Sublandlord leased from Prime Landlord certain premises (the
"ORIGINAL PREMISES") located in the building commonly known as 131 Clarendon
Street, Boston, Massachusetts (the "BUILDING"), which Original Premises contain
approximately 28,160 rentable square feet of space, as more fully described in
the Prime Lease; and
WHEREAS, Subtenant desires to sublease from Sublandlord a portion of the
Original Premises containing approximately 7,040 rentable square feet and
constituting the entire third (3rd) floor of the Building and more particularly
shown on the floor plan attached hereto as EXHIBIT B (the "SUBLEASED PREMISES"),
and Sublandlord is willing to sublease the Subleased Premises to Subtenant on
the provisions, covenants and conditions hereinafter set forth.
AGREEMENT
NOW, THEREFORE, in consideration of Ten Dollars ($10.00), the mutual
covenants made herein, and other consideration, the receipt and sufficiency of
which are hereby acknowledged and agreed, Sublandlord hereby subleases to
Subtenant and Subtenant hereby takes and hires from Sublandlord the Subleased
Premises, on the terms and conditions set forth below:
I. DEFINED TERMS. All terms defined in the Prime Lease and used herein
shall, unless otherwise defined herein, have the meanings ascribed to such terms
in the Prime Lease.
II. LEASE GRANT. Subject to the terms of this Sublease, Sublandlord leases
to Subtenant, and Subtenant leases from Sublandlord the Subleased Premises for
the Sublease Term (as defined herein), together with the right, in common with
others entitled thereto from time to time, to use the Appurtenant Exterior Areas
and common areas and facilities of the Building, including, but not limited to,
the loading dock, hallways, alleys, lobbies and passenger and freight elevators
necessary for access to the Subleased Premises and lavatories nearest to the
Subleased Premises. The term "APPURTENANT EXTERIOR AREAS" means the areas
appurtenant to the Building and intended for Subtenant's use, including, without
limitation, all driveways and walkways necessary for access to the Subleased
Premises.
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III. TERM. The term of this Sublease (the "SUBLEASE TERM") shall commence
on the later of (i) December 15, 2000 and (ii) the date on which Subtenant
receives written consent from Prime Landlord to this Sublease (the "SUBLEASE
TERM COMMENCEMENT DATE"), and shall continue until August 31, 2003, unless
sooner terminated in accordance with the provisions of this Sublease.
IV. DELIVERY; ALTERATIONS. The Subleased Premises shall be delivered to
Subtenant on the Sublease Term Commencement Date, broom-clean and free of all
occupants but otherwise "as-is, where-is and with all faults", without
representation or warranty, express or implied, and Subtenant hereby waives,
disclaims and renounces any representation or warranty. In accordance with
Section 13 of the Prime Lease, Subtenant may make any non-structural alterations
("Alterations") to the Subleased Premises subject to the prior written consent
of both Sublandlord and Prime Landlord. Subject to obtaining such consent,
Subtenant intends to make, at its sole expense, initial Alterations to the
Subleased Premises which shall include, without limitation, the removal or
relocation of internal, non-structural walls, painting and carpeting the
interior of the Subleased Premises, rewiring the Subleased Premises for computer
and telephone use, and installing office cubes. Upon Subtenant's delivery to
Sublandlord of plans and specifications for such initial Alterations,
Sublandlord shall review and approve or disapprove the same in a timely fashion.
Provided that Sublandlord has consented to any such Alterations, Sublandlord
shall use reasonable efforts and cooperate with Subtenant to obtain Prime
Landlord's consent thereto.
V. FIXED RENT. From and after the date that is two (2) months after the
Sublease Term Commencement Date (the "SUBLEASE RENT COMMENCEMENT DATE"),
Subtenant shall pay to Sublandlord, in advance, monthly installments, without
withholding, offset or reduction, Fixed Rent at the rate of $38.00 per rentable
square foot per annum (i.e., $22,293.33 per month). Fixed Rent for any partial
calendar months at the beginning or end of the Sublease Term shall be prorated
on a daily basis. Subtenant acknowledges that Sublandlord's payments of Fixed
Rent for the Original Premises are paid to Prime Landlord on the first day of
each calendar month during the Term and Subtenant therefore covenants, and
agrees that its payments of Fixed Rent hereunder shall be paid to Sublandlord at
least two (2) business days prior to the first of each calendar month, except
for the initial payment of Fixed Rent made on the Sublease Rent Commencement
Date.
VI. ADDITIONAL RENT. Subtenant acknowledges that pursuant to Sections 6.1
and 6.4 of the Prime Lease, Sublandlord is obligated to pay to Prime Landlord
additional rent on account of operating costs and real estate taxes for the
Building, as more particularly described in such Sections. Subtenant shall pay
to Sublandlord with its monthly payment of Fixed Rent Subtenant's proportionate
share of the amount by which (x) Sublandlord's additional rent obligations under
the Prime Lease pursuant to Sections 6.1 and 6.4 thereof exceed (y)
Sublandlord's additional rent obligations under said Sections 6.1 and 6.4 for
calendar year 2001 with respect to operating expenses and fiscal year 2001 with
respect to real estate taxes, such proportionate share being 25.0% (the number
of rentable square feet in the Subleased Premises expressed as a percentage of
the number of rentable square feet in the Original Premises, referred to
hereinafter as "SUBTENANT'S PROPORTIONATE SHARE"). Sublandlord shall deliver to
Subtenant promptly after receipt thereof any statements of operating costs or
real estate taxes delivered to Sublandlord by Prime Landlord. Promptly after
Sublandlord and Prime Landlord have made the
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appropriate adjustments between themselves on account of such actual operating
expenses and real estate taxes in accordance with Sections 6.2 and 6.9 of the
Prime Lease, Sublandlord and Subtenant similarly shall make adjustments to
Subtenant's payments of Subtenant's Proportionate Share of such additional rent.
The parties' obligations hereunder to make such adjustments shall survive the
expiration or early termination of this Sublease. Additional rent payable
hereunder for any partial calendar month at the beginning or end of the Sublease
Term shall be pro-rated on a daily basis.
VII. USE. The Subleased Premises shall be used for general office uses for
administrative purposes and for uses ancillary thereto but for no other uses.
Subtenant acknowledges that, pursuant to Section 8 of the Prime Lease, the
Subleased Premises shall not be used as medical offices and/or medical clinics,
a school, or other classroom facility.
VIII. PRIME LEASE. Subtenant agrees that it will do nothing in, on or about
the Subleased Premises which would result in the breach by Sublandlord of its
undertakings and obligations under the Prime Lease. Except for the following
provisions, this Sublease shall be subject to and on all of the terms and
conditions as are contained in the Prime Lease and the provisions of the Prime
Lease are hereby incorporated into this Sublease as if Sublandlord were the
landlord thereunder and Subtenant the tenant thereunder:
A. The defined economic terms for "Fixed Rent," "Term," "Premises" and
the like are inapplicable;
B. Section 5 of the Prime Lease (relating to Sublandlord's Security
Deposit) is inapplicable;
C. Sections 6.1 and 6.4 of the Prime Lease (relating to additional
rent) are applicable, as modified by the provisions of Paragraph VI of this
Sublease;
D. Section 14 of the Prime Lease (relating to assignment and
subletting) is inapplicable;
E. Section 25 of the Prime Lease (relating to brokers) is
inapplicable; and
F. Where appropriate, references to "Landlord" in the Prime Lease
shall be deemed to mean "Sublandlord" hereunder and references to "Tenant" in
the Prime Lease shall be deemed to mean "Subtenant" hereunder, it being
understood and agreed that Sublandlord will not be acting as, or assuming any of
the responsibilities of, Prime Landlord, and all references in the Prime Lease
to Landlord-provided services or Landlord insurance requirements, and any other
references which by theft nature relate to the owner or operator of the
Building, rather than to a tenant of the Building subleasing space to a
subtenant, shall continue to be references to Prime Landlord and not to
Sublandlord.
IX. SUBTENANT'S COVENANTS. Subject to the provisions of Paragraph VIII
hereof, Subtenant covenants to Sublandlord to perform all of the covenants and
obligations to be performed by Sublandlord as Tenant under the Prime Lease as
the same relate to the Subleased Premises and to comply with this Sublease and
the applicable provisions of the Prime Lease, as
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modified by this Sublease, in all respects. If Subtenant shall fail to make any
payment or perform any act required to be made or performed by Subtenant under
the Prime Lease pursuant to Subtenant's assumption of Sublandlord's obligations
thereunder as they relate to the Subleased Premises, and such default is not
cured by Subtenant by the first to occur of (i) one-half of the period specified
in the Prime Lease for curing such default, or (ii) five (5) days prior to the
expiration of such Prime Lease cure period, Sublandlord, without waiving or
releasing any obligation or default hereunder, may (but shall be under no
obligation to) make such payment or perform such act for the account and at the
expense of Subtenant, and may take any and all such actions as Sublandlord in
its sole discretion deems necessary or appropriate to accomplish such cure. If
Sublandlord shall reasonably incur any expense in remedying such default,
Sublandlord shall be entitled to recover such sums upon demand from Subtenant as
additional rent under this Sublease.
X. SUBLANDLORD'S COVENANTS. Sublandlord covenants to Subtenant to perform
all of the terms and provisions required of it under the Prime Lease and to
promptly pay when due all rents due and accruing to Prime Landlord. Sublandlord
will use reasonable efforts to enforce on behalf of Subtenant Sublandlord's
rights under the Prime Lease. Nothing contained in this Sublease shall be
construed as a guarantee by Sublandlord of any of the obligations, covenants,
warranties, agreements or undertakings of Prime Landlord in the Prime Lease, nor
as an undertaking by Sublandlord to Subtenant on the same or similar terms as
are contained in the Prime Lease. Sublandlord shall not amend or modify (nor
agree to amend or modify) the Prime Lease in any way that would materially
increase Subtenant's obligations or materially diminish Subtenant's rights under
this Sublease, nor shall Sublandlord do, nor permit to be done, anything that
would cause the Prime Lease to be cancelled, terminated or forfeited.
XI. INDEMNIFICATION. Subtenant shall indemnify Sublandlord and hold
Sublandlord harmless from and against any and all claims, demands suits,
judgments, liabilities, costs and expenses, including reasonable attorneys fees,
arising out of or in connection with Subtenant's use and possession of the
Subleased Premises, or arising out of the failure of Subtenant, its agents,
contractors or employees to perform any covenant, term or condition of this
Sublease or of the Prime Lease to be performed by Subtenant hereunder.
Sublandlord shall indemnify Subtenant and hold Subtenant harmless from and
against any and all claims, demands, suits, judgments, liabilities, costs and
expenses, including reasonable attorneys fees, arising out of the failure of
Sublandlord, its agents, contractors or employees to perform any covenant, term
or condition of this Sublease or of the Prime Lease to be performed by
Sublandlord hereunder.
XII. ASSIGNMENT AND SUBLETTING. Subtenant shall not assign this Sublease in
whole or in part or sublet the Subleased Premises in whole or in part without
the prior written consent of Sublandlord, which consent shall not be
unreasonably withheld. No such sublease or assignment shall be effective without
the consent of Prime Landlord under the Prime Lease. If, as to any sublease or
assignment for which Sublandlord's consent is necessary, Subtenant receives rent
or other consideration in excess of the Fixed Rent and Additional Rent payable
under this Sublease, Subtenant shall pay to Sublandlord all of such excess,
after deducting Subtenant's reasonable legal and brokerage expenses and fit-up
expenses paid for by Subtenant at the time of such subleasing or assignment. If
Sublandlord and Prime Landlord consent to any such assignment or subletting,
Subtenant shall remain fully and primarily liable to Sublandlord, in all
respects, under the Sublease.
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Notwithstanding anything contained in this Sublease to the contrary, none
of the following, nor any assignments or transfers of this Sublease resulting
from the following, shall require Sublandlord's prior written consent or the
payment by Subtenant of any fees or charges of any kind:
(a). a transfer of stock or other ownership interests in Subtenant;
(b). the merger, consolidation or amalgamation of Subtenant with a third
party or the sale of all or substantially all of the stock or assets of
Subtenant so long as the surviving entity has a net worth greater than or equal
to that of Subtenant (i) as of the date of this Sublease or (ii) as of the day
immediately preceding such transaction, whichever is greater; or
(c). a transfer to a parent, subsidiary or "affiliate" of Subtenant,
including, without limitation, ViaCord, Inc. An "affiliate" shall mean any
trust, corporation, partnership or limited liability company: (i) which owns or
"controls" the majority of the ownership interest of Subtenant, either directly
or indirectly through other entities; (ii) the majority of whose ownership
interests is owned or "controlled" by Subtenant; or (iii) which is under common
ownership with Subtenant, either directly or indirectly. As used herein, the
word "control" shall mean the right or power to direct or cause the direction of
the management and policies of the entity in question.
XIII. SECURITY DEPOSIT. Upon execution hereof, Subtenant has delivered to
Sublandlord a letter of credit (the "LETTER OF CREDIT") in the amount of
$200,640.00 from Silicon Valley Bank, in the form attached hereto as EXHIBIT C,
as security for the performance of Subtenant's obligations under this Sublease.
Upon the occurrence of any default by Subtenant hereunder after expiration of
all grace or cure periods, or in the event Sublandlord receives notice that the
Letter of Credit will not be renewed in the amount and form required hereunder,
Subtenant agrees that Sublandlord may present the Letter of Credit for payment
and apply all or any part of such proceeds to any obligation of Subtenant
hereunder. If all or any portion of such proceeds of the Letter of Credit is
applied by Sublandlord against any of Subtenant's obligations hereunder,
Subtenant shall promptly restore the Letter of Credit to its original amount. In
the event that Sublandlord transfers the Letter of Credit to a third party,
Subtenant shall be responsible for all transfer fees incurred by Sublandlord in
connection with such transfer, and shall promptly pay such fees after receipt of
an invoice therefor from Sublandlord.
At least thirty (30) days prior to the expiry of any Letter of Credit
provided to Sublandlord as Subtenant's Security Deposit hereunder, Subtenant
shall provide Sublandlord with a substitute Subtenant's Security Deposit in the
same amount (or, if permitted pursuant to this Paragraph XIII, any lesser
permitted amount) conforming to the provisions of this Paragraph XIII and in
substantially the same form as the Letter of Credit for this Sublease previously
approved by Sublandlord, but if effective during the final year of the Sublease
Term with an expiration date no earlier than thirty (30) days after the
expiration of the then extant Sublease Term.
Notwithstanding anything in this Sublease to the contrary, provided that
Subtenant (i) at such time is not in default of its obligations under this
Sublease beyond any applicable grace or
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cure period and (ii) has not been in such default beyond any applicable grace or
cure period, more than two times in the immediately preceding twelve (12)
months, the Letter of Credit shall be reduced by $66,880.00 (three months of
Fixed Rent) on February 20, 2002 and on February 20, 2003.
XIV. BROKERS. Each of Sublandlord and Subtenant represents and warrants to
the other that it has not dealt with any broker in connection with this Sublease
other than Trammell Crow Company and Meredith & Grew (together, "Brokers"), and
each agrees to indemnify, defend and hold the other harmless from and against
any breach of said representation and warranty. Sublandlord shall be responsible
for the commission to be paid to Brokers pursuant to separate agreements.
Trammell Crow Company's commission shall be an amount equal to $3.00 per
rentable square foot in the Subleased Premises ($21,120.00).
XV. UTILITIES. To the extent any such utilities are not separately metered
and billed directly to Subtenant, Subtenant shall be responsible for all
utilities (including light, plug and HVAC electricity) in the Subleased
Premises, to be paid by Subtenant to Sublandlord within ten (10) days after
billing therefor.
XVI. SIGNAGE. Subject to Building standards, the provisions of the Prime
Lease and Sublandlord's approval, which approval shall not be unreasonably
withheld, Subtenant shall have the right to install, at Subtenant's sole
expense, signage in the lobby of the Building and at the entrance to the
Subleased Premises.
XVII. SUBLANDLORD'S REPRESENTATIONS AND WARRANTIES. Sublandlord hereby
represents and warrants that: (1) Sublandlord is the tenant under the Prime
Lease and has the full right to enter into this Sublease (subject, however, to
obtaining Prime Landlord's consent); (ii) the Prime Lease is in full force and
effect; (iii) Sublandlord has not received from Prime Landlord any notice of any
default on the part of Sublandlord as tenant under the Prime Lease which has not
been cured, nor has Sublandlord given Prime Landlord notice of any default on
the part of Prime Landlord as landlord under the Prime Lease which has not been
cured; and (iv) Sublandlord has submitted to Subtenant a true and complete copy
of those portions of the Prime Lease that are pertinent to or affect Subtenant's
rights and obligations under the Sublease.
If as a result of any default by Prime Landlord as landlord under the Prime
Lease, Sublandlord as tenant under the Prime Lease is entitled to any offset,
abatement or similar rights against Prime Landlord, to the extent that the same
is applicable to the Subleased Premises, Subtenant shall be entitled to
Subtenant's Proportionate Share of such offset, abatement or similar rights.
XVIII. COVENANT OF QUIET ENJOYMENT. Subtenant, subject to the terms and
provisions of this Sublease, on payment of the Fixed Rent, additional rent and
other amounts payable hereunder, and observing, keeping, and performing all of
the terms and provisions of this Sublease on Subtenant's part to be observed,
kept, and performed, shall lawfully, peaceably, and quietly have, hold, occupy,
and enjoy the Subleased Premises during the Sublease Term without hindrance or
ejection by Sublandlord or by any person lawfully claiming under Sublandlord.
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XIX. RIGHT OF FIRST OFFER. If during the Sublease Term Sublandlord desires
to sublease all or a portion of the remaining Original Premises (the "Sublease
First Offer Space"), Sublandlord shall so notify Subtenant in writing, setting
forth the terms and conditions (the "Offer Terms") on which Sublandlord is
willing to so sublease the Sublease First Offer Space ("Sublandlord's Offer
Notice"). Subtenant may, by giving Sublandlord written notice within five (5)
business days after receipt of Sublandlord's Offer Notice, irrevocably elect to
sublease the Sublease First Offer Space on the Offer Terms. If Subtenant shall
so elect, Subtenant shall within ten (10) business days after such election
enter into a sublease or amendment to this Sublease incorporating the Offer
Terms and otherwise incorporating such terms and conditions as are mutually
acceptable to Sublandlord and Subtenant. If Subtenant shall fail to make such
election by within such 5-business-day period, then at Sublandlord's election,
Subtenant shall have no further rights with respect to the Sublease First Offer
Space, and Sublandlord shall thereafter be free to sublease any or all of the
Sublease First Offer Space to another party or parties, and on terms not
substantially more favorable to such party than the Offer Terms, provided that
the rental rate offered to any such third party shall not be less than 90% of
the rental rate offered to Subtenant.
XX. MISCELLANEOUS.
A. COUNTERPARTS. This instrument may be signed in counterpart
originals, which, taken together, shall constitute a single original instrument.
B. NOTICES. Notices to Sublandlord or Subtenant required or permitted
hereunder shall be sent in the manner prescribed in the Prime Lease to the
Original Premises in the case of notices to Sublandlord and in the case of
notices to Subtenant to the following address:
551 Boylston Street, Suite 40
Boston, MA 02116
Attn: Erin E. Quinn
with a copy to:
Palmer & Dodge LLP
One Beacon Street
Boston, MA 02108
Attn: Thomas G. Schnorr, Esq.
C. AMENDMENTS. This Sublease may not be changed or terminated orally
but only by an agreement in writing signed by both Sublandlord and Subtenant.
D. ESTOPPEL CERTIFICATES. Sublandlord and Subtenant each agree to
furnish within twenty (20) days after written request therefor by the other, a
certificate stating (i) that this Sublease is in full force and effect and has
not been amended or modified (or describing such amendment or modification, if
any); (ii) the dates though which Fixed Rent and additional rent have been paid
hereunder; and (iii) that there are no defaults under this Sublease known to the
signer of the certificate (or specifying such defaults, if known).
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E. NO WAIVER. The failure of either party to insist on strict
performance of any covenant or condition hereof, or to exercise any option
contained herein, shall not be construed as a waiver of such covenant, condition
or option in any other instance.
F. MEMORANDUM OF LEASE. Subtenant shall not record this Sublease or
any memorandum hereof.
G. GOVERNING LAW. This Sublease has been negotiated, executed and
delivered in the Commonwealth of Massachusetts, and the parties agree that the
rights and obligations of the parties under this Sublease shall be governed and
construed in accordance with the laws of the Commonwealth of Massachusetts.
H. SEVERABILITY. The invalidity of any of the provisions of this
Sublease will not impair or affect in any manner the validity, enforceability or
effect of the rest of this Sublease.
I. ENTIRE AGREEMENT. All understandings and agreements, oral or
written, heretofore made between ,the parties hereto are merged in this
Sublease, which alone fully and completely expresses the agreement between
Sublandlord and Subtenant.
J. RELATIONSHIP BETWEEN THE PARTIES. This Sublease does not create the
relationship of principal and agent, nor does it create any partnership, joint
venture, or any association or relationship between Sublandlord and Subtenant
other than as and to the extent specifically provided in this Sublease, the sole
relationship of Sublandlord and Subtenant being that of Sublandlord and
subtenant as provided in this Sublease.
K. REMEDIES CUMULATIVE. Except as specifically provided herein, all
rights and remedies of the parties under this Sublease shall be cumulative and
none shall exclude any other rights and remedies allowed by law.
L. CONDITION PRECEDENT. The effectiveness of this Sublease is
expressly subject to and conditional upon obtaining Prime Landlord's written
consent to this Sublease pursuant to Section 14 of the Prime Lease.
M. AUTHORITY. Sublandlord warrants that Sublandlord is a duly existing
and valid Massachusetts corporation qualified to do business in Massachusetts,
that Sublandlord has duly executed and delivered this Sublease, that the
execution and delivery of; and the performance by Sublandlord of its obligations
under this Sublease are within the powers of Sublandlord and have been duly
authorized by all requisite corporate action, and that this Sublease is a valid
and binding obligation of Sublandlord in accordance with its terms. Subtenant
warrants that the Subtenant is a duly existing and valid Delaware corporation
qualified to do business in Massachusetts, that Subtenant has duly executed and
delivered this Sublease, that the execution and delivery of, and the performance
by Subtenant of its obligations under this Sublease are within the powers of
Subtenant and have been duly authorized by all requisite corporate action, and
that the Sublease is a valid and binding obligation of Subtenant in accordance
with its terms.
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IN WITNESS WHEREOF, the parties have executed this Sublease as an
instrument under seal as of the date first written above.
SUBLANDLORD:
AIDS ACTION COMMITTEE OF MASSACHUSETTS, INC.,
a Massachusetts corporation
By: Signature on File
------------------------------------------
Name:
Title: Director
SUBTENANT:
VIACELL, INC., a Delaware corporation
By: /s/ Marc Beer CEO
------------------------------------------
Name:
Title:
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EXHIBIT A
PRIME LEASE
[See Attached]
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LEASE
DATE: JUNE 30, 1988
1. PARTIES John Hancock Mutual Life Insurance Company, LESSOR, which
expression shall include its successors and assign where
the context so admits, does hereby lease to AIDS Action
Committee, Inc. LESSEE, which expression shall include its
successors and assigns where the context so admits, and
the LESSEE hereby leases the following described premises.
2. PREMISES ("Leased Premises"): That portion of 131 Clarendon Street,
Boston, MA. Consisting of the portion of the third floor
shown as Suites 2, 3, 4, 5 and 6, the entire fourth floor
and the entire fifth floor and containing approximately
19,250 retable square feet as shown on the attached
Exhibit A and commonly known and numbered as 131 Clarendon
Street, Boston, Massachusetts 02116, together with the
right to use in common, with others entitled thereto, the
alleys, loading docks, sidewalks, lobbies, hallways,
stairways, and passenger and freight elevators necessary
for access to said Leased Premises, and lavatories nearest
thereto.
3. TERM The term of the lease shall be for five (5) years
commencing on September 1, 1988 and ending on August 31,
1993.
4. ANNUAL FIXED The LESSEE shall pay to the LESSOR Annual Fixed Rent
(herein "Fixed Rate") at the rate of Three Hundred Eight
Thousand and 00/100 (308,000.00) dollars per year payable
in advance in monthly installments of Twenty Five Thousand
Six Hundred Sixty Six and 67/100 ($25,666.67) dollars due
and payable on the first day of each month. Effective
September 1, 1989. Fixed Rent will increase to Three
Hundred Twenty Seven Thousand Two Hundred Fifty and 00/100
($327,250.00) dollars, per year payable in advance in
monthly installments of Twenty-Seven Thousand Two Hundred
Seventy and 88/100 ($27,270.88) dollars. Effective
September 1, 1990 Fixed Rent will increase to Three
Hundred Forty-Six Thousand Five Hundred and 00/100
($346,500.00) dollars per year, payable in advance in
monthly installments of Twenty Eight Thousand Eight
Hundred Seventy Five and 00/100 (28,875.00) dollars.
Effective September 1, 1991 Fixed Rent will increase to
Three Hundred Sixty Five Thousand Seven Hundred Fifty and
($365,750.00) dollars per year, payable in advance in
monthly installments of Thirty Thousand Four Hundred
Seventy Nine and 17/100 (30,479.17) dollars. Effective
September 1, 1992 Fixed Rent will increase to Three
Hundred Eighty Five Thousand
<PAGE>
and 00/100 ($385,000.00) dollars per year payable in
advance in monthly installments of Thirty Two Thousand
Eighty Three and 33/100 ($32,083.33) dollars. Payments are
to be made to Meredith & Crew, Incorporated, 160 Federal
Street, Boston, Massachusetts 02110-1701.
Upon the execution of this lease, the LESSEE shall pay to
the LESSOR the amount of Twenty Five Thousand Six Hundred
Sixty Six and 67/100 ($25,666.67), which shall be held as
a security for the LESSEE'S performance, as herein
provided and refunded to the LESSEE at the end of this
lease subject to the LESSEE'S satisfactory compliance with
the conditions hereof. No interest shall be payable on
said sum or any part thereof.
6.1 If in any year after calendar year 1988 LESSOR'S
operating expenses (as set forth on Exhibit B attached
hereto and incorporated herein by reference) for the
building of which the Leased Premises are a part (the
"Building") (exclusive of real estate taxes and financing
costs) exceed LESSOR'S operating expenses for the Building
(exclusive of real estate taxes and financing costs) for
calendar year 1988, LESSEE shall pay to LESSOR as
additional rent hereunder an amount equal to 31.5% of such
increase, LESSEE'S proportionate share is calculated as
follows: 19,250 rentable square feet in Leased Premises
divided by 61,110 rentable square feet in Building.
6.2 LESSEE shall pay additional rent for operating
expenses in monthly installment on the first day of each
calendar month in amounts reasonably estimated by LESSOR
for the then current period. LESSOR may from time to time
revise such estimates based on available information
relating to such operating express. Within a reasonable
time after the end of each calendar year, LESSOR shall
render to LESSEE a statement, according to generally
accepted accounting practices consistently applied,
certified by a financial officer of LESSOR's managing
agent on behalf of LESSOR, showing operating expenses for
such calendar year and the amount, if any, of additional
rent payable by LESSEE pursuant to Section 6.1. Upon
reasonable notice, LESSEE shall have access during
business hours to LESSOR's books and records supporting
such statement each year. LESSEE shall pay to LESSOR any
such amount of additional rent shown on such statement,
less any amounts previously paid by LESSEE on account
thereof, within fifteen (15) days after such statement is
rendered. In case, such statement shows an overpayment by
LESSEE, LESSOR shall apply such overpayment to rent next
coming due hereunder or, if no rent is due, LESSOR shall
include with such statement a refund of such overpayment.
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6.3 If this lease shall commence or terminate in the
middle of a calendar year, LESSEE shall be liable for only
that portion of such increase in respect of such calendar
year represented by a fraction, the numerator of which is
the number of days of the term herein which fall within
the calendar year and the denominator of which is three
hundred sixty-five (365).
6.4 LESSEE shall also pay as additional rent hereunder
31.5% of the amount by which real estate taxes levied on
the building and the parcel of land on which the Building
is located (the "Property") for any fiscal tax year during
the term of this lease exceed the real estate taxes levied
against the Property during the Fiscal Tax Year 1988
(commencing July 1, 1987 and ending June 30, 1988).
LESSEE's proportionate share is calculated as follows:
19,250 rentable square feet in Leased Premises divided by
61,110 rentable square feet in Building.
6.5 The term "real estate taxes" shall mean all taxes and
special or betterment assessments of every kind and nature
assessed by any governmental authority on the Property
which LESSOR shall become obligated to pay because of or
in connection with the ownership, leasing and operation of
the same. There shall be excluded from real estate taxes
all income taxes, excess profit taxes, excise taxes,
franchise taxes, estate, succession, inheritance and
transfer taxes imposed on LESSOR as a result of its
ownership of the Property; provide, however, that if at
any time during the term of this lease the present system
of ad valorem taxation of real property there shall be
assessed on LESSOR a capital levy or other tax on the
gross rents received with respect to the Property, or
federal, state, county, municipal, or other local income,
franchise, excise or similar tax, assessment, levy or
charge (distinct from any now in effect) measured by or
based, in whole or in part, upon any such gross rents,
then any and all such taxes, assessments, levies or
charges to the extent so measured or based, shall be
deemed to be included within the term "real estate taxes"
but only to the extent that the same would be payable if
the Property were the only property of LESSOR.
6.6 The real estate taxes upon the Property for any fiscal
year commencing July 1, and terminating the following June
30 shall mean such amounts as shall be finally determined
to be the real estate taxes payable with respect to the
Property for said fiscal tax year, that is, the real
estate taxes assessed against the Property for said fiscal
tax year less any abatements, refunds or rebates made
thereof. For the purpose of determining payments due from
LESSEE to LESSOR in accordance with the provisions of this
subsection: (i) the real estate taxes upon the Property
for any
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fiscal tax year shall be deemed to be the real estate
taxes assessed for said fiscal tax year until such time as
an abatement, refund or rebate shall be made thereof, and
(ii) if any abatement, refund or rebate shall be made for
any fiscal tax year, and appropriate adjustment shall be
made in the amount payable from or paid by LESSEE to
LESSOR on account of real estate taxes, less LESSOR's
reasonable fees and expenses in obtaining such abatement,
and LESSOR shall apply such overpayments to rent next
coming due hereunder or, if no rent is due, LESSOR shall
refund any such overpayment.
6.7 For the fiscal tax year during which the term of this
lease shall commence or terminate, LESSEE shall only be
liable for a fraction of its share, the numerator of said
fraction being the number of days of the term of this
lease which fall within the fiscal tax year and the
denominator of said fraction being the total number of
days of the fiscal tax year.
6.8 It is understood by the parties hereto that there are
presently two tax billing periods for each fiscal tax
year, namely the billing period from July 1 through
December 31 of each year and the billing period from
January 1 through June 30 of each year. If the billing
periods or fiscal tax year shall be changed by the
governmental authorities having jurisdiction over the
Property, an appropriate adjustment shall be made to carry
out the intent of the parties hereto.
6.9 LESSOR shall pay additional rent for real estate taxes
in monthly installments on the first day of each calendar
month in amounts reasonably estimated by LESSOR for the
then current period. Within a reasonable time after the
end of each fiscal year, LESSOR shall render a statement
to LESSEE showing the actual real estate taxes levied on
the Property for said fiscal tax year, and the amount, if
any, of additional rent payable by LESSEE pursuant to
Section 6.4 LESSEE shall pay to LESSOR any such amount of
additional rent shown on such statements, less any amounts
previously paid by LESSEE on account thereof, within
fifteen (15) days after such statement is rendered. In
case, such statement show an overpayment by LESSEE, LESSOR
shall apply such overpayment to rent next coming due
hereunder or, if no rent is due, LESSOR shall include with
such statement a refund of such overpayment.
7. UTILITIES The LESSEE shall pay, as they become due, all bills for
electricity and other utilities that are furnished to the
Leased Premises, and separately metered. The LESSOR shall
provide and LESSEE shall Pay for all LESSEE's replacement
light tubes, lamps, bulbs and
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ballasts. LESSOR shall have no obligation to provide
utilities other than the utilities within the Leased
Premises as of the commencement date of this lease. In the
event LESSEE requires additional utilities, the
installation and maintenance thereof shall be the LESSEE's
sole obligation, provided that such installation shall be
subject to the written consent of the LESSOR, which shall
not be unreasonably withheld or delayed.
8. USE OF LEASED
PREMISES The LESSEE shall use the Leased Premises only for the
purpose of administration, fund raising and development
offices for its programs from time to time and for other
general office purposes. It is understood that the
foregoing shall not include medical offices and/or medical
clinics, a school or other classroom facility. It is also
understood that, except for periods when LESSEE's rights
have been sublet or assigned (in each case with LESSOR's
consent as provided in this Lease), LESSEE shall,
throughout the Term, use the Leased Premises as LESSEE's
main corporate offices, LESSEE shall not, without LESSOR's
consent, move its main office elsewhere and continue to
use the Leased Premises for LESSEE's programs.
9. COMPLIANCE
WITH LAWS The LESSEE acknowledges that no trade or occupation shall
be conducted in the Leased Premises or use made thereof
which will be unlawful, noisy or contrary to any law or
any municipal by-law or ordinance in force in the city of
town in which the Leased Premises are situated and LESSEE
shall comply with laws and ordinances applicable to its
use of the Leased Premises.
10. FIRE INSURANCE The LESSEE shall not permit any use of the Leased Premises
which will 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 New
England Fire Insurance Rating Association, or any similar
body succeeding to its powers. It is understood that the
uses permitted hereunder are not, at the date hereof,
contrary to such law or regulation and do not make
voidable any such insurance. The LESSEE shall on demand
reimburse the LESSOR, and all other tenants, all extra
insurance premiums caused by the LESSEE's use of the
Leased Premises.
11. MAINTENANCE
OF PREMISES The LESSEE agrees to maintain 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,
reasonable wear and tear, damage by fire and other
casualty only excepted, and
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whenever necessary, to replace plate glass and other glass
therein. The LESSEE shall not permit the Leased Premises
to be overloaded, damaged, stripped, or defaced, nor
suffer any waste. In accordance with the Rules and
Regulations, LESSEE shall obtain written consent of LESSOR
before erecting any sign on the Leased Premises. Except
for LESSOR's obligations under section 13 of this Lease,
LESSEE accepts the Leased Premises its "As Is" condition
as of on the date hereof.
12. SERVICES
PROVIDED BY
THE LESSOR LESSOR covenants to furnish during the lease term, through
LESSOR's employees or independent contractors, the
following services:
(a) Reasonable heat and air conditioning (except to the
extent that the same are furnished through separately
metered utilities) to the Leased Premises during normal
business hours on regular business days of the heating and
air conditioning season of each year. Normal business
hours are considered to be Monday through Friday from 8:00
a.m. to 6:00 p.m. and Saturday from 8:00 a.m. to 1:00
p.m., legal holidays excepted. If LESSEE requires
additional heat outside of normal business hours, LESSOR
will provide such heat at LESSOR's costs, which LESSEE
will reimburse.
In the event LESSEE requires additional air conditioning
for business machines, meeting rooms or other special
purposes, or, because of occupancy or excess electrical
loads, requires any additional air conditioning equipment,
such additional air conditioning equipment will be
installed and maintained by LESSEE at LESSEE's sole cost
and expense, provided that such installation shall be
subject to the written consent of the LESSOR, which shall
not be unreasonably withheld or delayed.
(b) Maintenance of the heating, ventilating and air
conditioning equipment in serviceable condition damage by
fire and other casualty or eminent domain taking only
excepted, unless such maintenance is required because of
the LESSEE or those for whose conduct the LESSEE is
responsible.
(c) Operation of the water cooling towers for air
conditioning purposes during normal business hours on
regular business days of the air conditioning season of
each year and outside of normal business hours of LESSOR's
costs, which LESSEE will reimburse.
(d) Operatorless passenger elevator service at all times
and freight elevator service, subject to reasonable
scheduling by LESSOR.
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(e) Window washing of all windows in the Leased Premises,
both inside and out, weather permitting, at reasonable
intervals to be determined by LESSOR.
(f) Cleaning (such cleaning service is limited to the
common areas in said Building) as is customary in similar
buildings in said city.
(g) Reasonable hot and cold water for lavatory and toilet
purposes.
(h) Reasonable lighting of common areas of said Building
at all times.
(i) Maintenance of the structure of the Building of which
the Leased Premises are a part in serviceable condition
damage by fire and other casualty and eminent domain
taking only excepted, unless such maintenance is required
because of the LESSEE or those for whose conduct the
LESSEE is legally responsible.
(j) Provision of dumpster at the Building to receive trash
from the Leased Premises and provision for emptying of
dumpster.
(k) Building security services, including reasonable
security systems or procedures to be in effect outside of
normal business hours.
(1) Such additional services on such terms and conditions
as may be mutually agreed upon by the LESSOR and LESSEE.
All service is subject to interruption due to any accident,
to the making repairs, alterations or improvements to labor
difficulties, to the unavailability of fuel, electricity,
service or supplies from the sources from which they are
reasonably obtainable or to any cause beyond the LESSOR's
control. LESSOR shall use its best efforts to remedy the
cause of any such interruption and, if such interruption
materially interferes with or prohibits LESSEE's use of the
Leased Premises and continues for more than seven days, rent
and additional rent shall abate be equitably abated until the
interruption in question in remedied.
13. ALTERATIONS -
ADDITIONS The LESSEE shall not make structural alterations or
additions to the Leased Premises, but may make
non-structural alterations provided the LESSOR consents
thereto in writing, which consent shall not be
unreasonably withheld or delayed. All such allowed
alterations shall be at LESSEE's expense. LESSEE shall
procure at LESSEE's sole expense all necessary permits and
licenses
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before undertaking any work on the Leased Premises. All
such work shall be done in a good and workmanlike manner
employing materials of good quality and so as to conform
with all applicable zoning, building, fire, health and
other codes, regulations, ordinances and laws. LESSEE will
deliver copies of all necessary permits and licenses to
LESSOR prior to the commencement of such work. LESSEE
shall not permit any mechanics' liens, or similar liens,
to remain upon the Leased Premises for labor and material
furnished to LESSEE or claimed to have been furnished to
LESSEE in connection with work of any character performed
or claimed to have been performed a the direction of
LESSEE and shall cause any such lien to be released of
record forthwith without cost to LESSOR. Any alterations
or improvements made by the LESSEE, shall become the
property of the LESSOR at the termination of occupancy as
provided herein.
Lessor shall, by the following dates, perform the
following work in the Leased Premises and the Building at
Lessor's cost:
(a) By September 1, 1989, install all new Building
windows in the Leased Premises.
(b) By September 1, 1989, renovate Building lobby and
passenger elevator cabs in accordance with plans
appropriate, in LESSOR's reasonable judgment, for the
renovation of an older office building.
14. LESSEE covenants and agrees not to assign mortgage,
pledge, encumber or otherwise transfer this lease or make
any sublease or permit the occupancy of the Leased
Premises or any part thereof by anyone other than LESSEE
without first obtaining on each occasion the prior consent
in writing of LESSOR which shall not be unreasonably
withhold. As additional rent, LESSEE shall reimburse
LESSOR promptly for reasonable legal expenses incurred by
LESSOR in connection with any request by LESSEE for
consent to assignment or subletting. No assignment or
subletting shall in any way impair the continuing primary
liability of LESSEE hereunder, and no consent to any
assignment or subletting in a particular instance shall be
deemed to be a waiver of the obligation to obtain LESSOR's
approval in the case of any other assignment or
subletting.
If for any assignment or sublease or occupancy by another,
LESSEE receives rent or other consideration, either
initially or over the term of the assignment, sublease or
occupancy, in excess of the rent called for hereunder, or
in case of sublease of part of the Leased Premises, in
excess of such rent fairly allocable to the part
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so subleased (hereinafter referred to as "Excess Rents"),
after appropriate adjustments to assure that all other
payments called for hereunder are appropriately taken into
account, LESSEE shall pay to LESSOR, as Additional Rent,
50% of the Excess Rents, as and when received by LESSEE.
If during the Term of this Lease (I) LESSEE requests
LESSOR's consent to a proposed subletting of seventy-five
percent (75%) or more of the space in the Leased Premises
or LESSEE has already sublet a portion or portions of the
Leased Premises and requests LESSOR's consent to a
proposed subletting of additional space in the Leased
Premises, the amount which would, when added to the amount
of space already so subleased by LESSEE, exceed
seventy-five percent (75%) of the Leased Premises, then
LESSEE's request for LESSOR's consent shall constitute an
offer to LESSOR to release from this Lease that portion of
the Leased Premises proposed to be sublet, which offer
LESSOR may accept within 30 days after receipt of such
request. If Lessor accepts such offer, this Lease shall be
deemed to have been amended by deleting such portion from
the Leased Premises and by reducing the fixed rent by an
amount equal to the product of the fixed rent multiplied
by a fraction, the numerator of which shall be the
rentable floor area of such portion deleted from the
Leased Premises including the deleted portion. Thereafter,
for all purposes of this Lease the Leased Premises shall
mean the balance of the original Leased Premises demised
hereunder following deletion of the affected portion
thereof, and all additional rent payable hereunder shall
be adjusted pro rata, accordingly. Such amendment shall be
effective on the proposed effective date of the sublease
as specified in LESSEE's request for consent.
15. SUBORDINATION This lease shall be subject and subordinate to any and all
mortgages, deeds of trust and other instruments in the
nature of a mortgage, now or at any time hereafter, a lien
or liens on the Property of which the Leased Premises are
a part and the 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, deeds of trust or other such instruments in the
nature of a mortgage. Lessor shall obtain, from each
Mortgagee of the Property or Building, a non-disturbance
agreement for Lessee.
16. LESSOR'S ACCESS The Lessor or agents of the LESSOR may, at reasonable
times and upon reasonable not ice except in emergency,
enter to view the Leased Premises and may remove placards
and signs not approved and affixed as herein provided, and
make repairs and alterations to the common systems and
facilities and to the other portions of the
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Leased Premises to the extent LESSEE has failed to perform
its obligations hereunder, all as LESSOR should reasonably
elect to do and may show the Leased Premises to others,
and at any time within three (3) months before the
expiration of the term, may affix to any suitable part of
the Leased Premises a notice for letting or selling the
Leased Premises or the Property of which the Leased
Premises are a part and keep the same so affixed without
hindrance or molestation.
17. INDEMNIFICATION
AND LIABILITY The LESSEE shall save the LESSOR harmless from all loss
and damage occasioned by the use by LESSEE or escape of
water caused by LESSEE or by the bursting of the pies
caused by LESSEE, as well as from any claim or damage
resulting from any nuisance made or suffered on the Leased
Premises, unless such loss is caused by the neglect of the
LESSOR> The removal of snow and ice from the sidewalks
bordering upon the Leased Premises shall be the LESSOR's
responsibility.
18. LESSEE'S
LIABILITY
INSURANCE The LESSEE shall maintain with respect to the Leased
Premises and the Property, of which the Leased Premises
are a part, comprehensive public liability insurance in
the amount of $500,000.00 with property damage insurance
in limits of $100,000.00 in responsible companies
qualified to do business in Massachusetts and in good
standing therein insuring the LESSOR as well as LESSEE
against injury to persons or damage to property as
provided. The LESSEE shall deposit with the LESSOR
certificates for such insurance at or prior to the
commencement of the term, and thereafter within thirty
(30) days 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 assured named therein.
19. 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, the LESSOR may elect to terminate this lease
within 30 days of such fire or other casualty. When such
fire, casualty, or taking renders the Lease Premises
(including reasonable access thereto) substantially
unsuitable for their intended use a just and proportionate
abatement of rent and additional rent shall be made and
the LESSEE may elect to terminate this lease if:
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(a) The LESSOR fails to give written notice within
thirty (30) days of its intention to restore the Lease
Premises, or
(b) The LESSOR fails to restore the Leased Premises
to a condition substantially suitable for their intended
use within one hundred eighty (180) days of said fire,
casualty, or taking.
The LESSOR reserves, and the LESSEE grants to the LESSOR,
all rights which the LESSEE may have for damages or injury
to the Leased Premises for any taking by eminent domain,
except for damage to the LESSEE's fixtures, property, or
equipment, and for LESSEE's moving expenses.
20. DEFAULT AND
BANKRUPTCY In the event that:
(a) The LESSEE shall default in the payment of any
installment of rent or other sum herein specified and such
default shall continue for ten (10) days after written
notice thereof;
(b) The LESSEE shall default in the observance or
performance of any other of the LESSEE's covenants,
agreements, or obligations hereunder and such default
shall not be corrected within thirty (30) days after
written notice thereof or such longer time as shall be
reasonably required to complete such cure in the exercise
of due diligence; or
(c) The LESSEE shall be declared bankrupt or
insolvent according to law, or, if any assignment shall be
made of LESSEE's property for the benefit of creditors,
then the LESSOR shall have the right thereafter, while
such default continues, to re-enter and take complete
possession of the Leased Premises, to declare the term of
this lease ended, and remove the LESSEE's effects, without
prejudice to any remedies which might be otherwise used
for arrears of rent or other default. In lieu of re-entry,
LESSOR may send notice by mail terminating this lease. The
LESSEE shall indemnify the LESSOR against all loss of rent
and other payments which the LESSOR may incur by reason of
such termination during the residue of the term. If the
LESSEE shall default, after reasonable notice thereof, in
the observance or performance of any conditions or
covenants on LESSEE's part to be observed or performed
under or by virtue of any of the provisions in any article
of this lease, the LESSOR, without being under any
obligation to do so and without thereby waiving such
default, may remedy such default for the account and at
the expense of the LESSER. If the LESSOR makes any
expenditures or incurs any obligations for the payment of
money in connection
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therewith, including but not limited to, reasonable
attorney's fees in instituting, prosecuting or defending
any action or proceeding, such sums paid or obligations
incurred with interest at the rate of two percent (2%) per
annum above the prime rate charged from time to time by
the Bank of Boston to its most credit-worthy commercial
customers, shall be paid to the LESSOR by the LESSEE as
additional rent.
21. LATE CHARGE If LESSEE shall fail to pay, within ten (10) days after
the same shall become due, any amount of fixed rent or
additional rent or any other amount required to be paid by
LESSEE hereunder, LESSEE shall pay to LESSOR, on demand
and in addition to such amount, a late charge equal to
daily interest based on a 360-day year from the date such
amount became due on the amount thereof from time to time
remaining unpaid at a per annum interest rate of two
percent (2%) above the prime rate charged from time to
time by the Bank of Boston. Such late charge shall be in
addition to, and not in limitation of, LESSOR's other
rights and remedies in the event of such late payment.
22. NOTICE Any notice from the LESSOR to the LESSEE relating to the
Leased Premises or to the occupancy thereof, shall be
deemed duly served, if hand delivered to the Leased
Premises during normal business hours addressed to the
LESSEE, or, if mailed to the Leased Premises, registered
or certified mail, return receipt requested, postage
prepaid addressed to the LESSEE or to such other address
of which Lessor has been given notice with a copy to Hill
& Barlow, One International Place, Boston, MA 02110, Attn:
Emily C. Hewitt, Esq. Any notice from the LESSEE to the
LESSOR relating to the Leased Premises or to the occupancy
thereof, shall be deemed duly served, if mailed to the
LESSOR by registered or certified mail, return receipt
requested, postage prepaid, addressed to the LESSOR at
such address as the LESSOR may from time to time advise in
writing. All notices shall be sent to the LESSOR at:
John Hancock Properties, Inc.
Two Copley Place, Suite 200
Post Office Box 111
Boston, Massachusetts 02117
Meredith & Grew, Incorporated
160 Federal Street
Boston, Massachusetts 02110-1701.
LESSEE agrees from time to time, upon not less than
fifteen (15) days prior written request by LESSOR, to
execute, acknowledge
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and deliver to LESSOR a statement in writing certifying
that this Lease is unmodified and in full force and effect
and that LESSEE has no defenses, offsets or counterclaims
against its obligations to pay the fixed rent and
additional rent and to perform its other covenants under
this Lease and that there are no uncured defaults of
LESSOR or LESSEE under this Lease (or, if there have been
any modifications, that the Lease is in full force and
effect as modified and stating the modifications, and, if
there are any defenses, offsets counterclaims, or
defaults, setting them forth in reasonable detail), and
the dates to which the fixed rent, additional rent and
other charges have been paid. Any such statement delivered
pursuant to this Section 23 may be relied upon by an
prospective purchaser or mortgagee of the Leased Premises
or any prospective assignee of any mortgage of the Leased
Premises.
Surrender The LESSEE shall at the expiration or other termination of
this lease remove all LESSEE's goods and effects from the
Leased Premises, (including, without hereby limiting the
generality of the foregoing, all signs and lettering
affixed or painted by the LESSEE, either inside or outside
the Lease Premises). LESSEE shall deliver to the LESSOR
the Leased Premises and all keys, locks thereto, and other
fixtures connected therewith and all alterations and
additions made to or upon the Leased Premises, in the same
condition as they were at the commencement of the term, or
as they were put in during the term hereof, reasonable
wear and tear and damage by eminent domain, fire or other
casualty only excepted. Provided LESSEE is not in default,
LESSEE shall be entitled to remove its equipment and trade
fixtures provided it shall reasonably repair any damage
caused there by. In the event if the LESSEE's failure to
remove any of LESSEE's property from the Leased Premises,
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 of the property at LESSEE's
expense, or to retain the same under LESSOR's control or
upon reasonable notice 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 upon reasonable notice to
destroy such property.
LESSOR and LESSEE each warrant to the other that they have
had not dealings with any broker or agent in connection
with this Lease other than Meredith & Grew, Inc. (the
"Broker") and each covenants to the other to defend with
counsel approved by the other, which approval shall not be
unreasonably withheld or delayed, hold harmless and
indemnify one another from and against any and all cost,
expense or liability for any compensation,
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commissions and charges claimed by any broker or agent
with respect to their respective dealings in connection
with this Lease or the negotiation thereof, other than for
the Broker above named. LESSOR shall pay the commission of
the Broker above named.
In the event LESSEE holds, occupies or detains the
Premises or any part thereof after the expiration or
earlier termination of this Lease, without the express
written consent of LESSOR, LESSEE shall be deemed a
tenant-at-sufferance only, and such tenancy-at-sufferance
shall not constitute a renewal hereof or an extension for
any further term or the creation of a tenancy-at-will and,
in such event, LESSEE shall pay to LESSOR on the first day
of each month, in advance, fixed rent in an amount equal
to twice the amount of the monthly installments of fixed
rent, as provided in section 4 for the last full month of
the tenancy hereunder. Such tenancy-at-sufferance shall be
subject to every other term, provision, condition,
covenant and agreement contained herein, including without
limitation the obligation of LESSEE to pay all additional
rent as provided in this Lease. Nothing contained this
Section 24 shall be construed as consent by LESSOR to any
holding over by LESSEE and LESSOR expressly reserves the
right to require LESSEE to surrender possession of the
Leased Premises to LESSOR as provided in this Lease upon
the expiration or earlier termination of this Lease, to
commence suit at any time to recover possession of the
Leased Premises and recover all installments of fixed
rent, additional rent and other amounts and charges due
hereunder, and to apply payments received by LESSOR from
LESSEE on account and not as payment in full or in accord
and satisfaction.
27. MODIFICATION
OF AGREEMENT This lease contains the entire agreement between the
parties and shall not be modified in any manner except by
an instrument in writing executed by the parties.
28. GOVERNING LAW This lease is made pursuant to and shall be governed by
and construed in accordance with the laws of the
Commonwealth of Massachusetts.
29. SEPARABILITY If any provision of this lease or portion of such
provision or the application thereof to any person or
circumstance is for any reason held invalid or
unenforceable, the remainder of the lease (including the
remainder of such provisions) and the application thereof
to the persons or circumstances shall not be affected
thereby.
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30. LANDLORD'S
LIABILITY 30.1 The obligations of LESSOR hereunder shall be binding
upon LESSOR and each succeeding owner of LESSOR's interest
hereunder only during the period of such ownership, and
LESSOR and each succeeding owner shall have no liability
whatsoever except for their obligations during each such
respective period. LESSEE hereby agrees for itself and
each succeeding holder of the LESSEE's interest under this
Lease, or any portion thereof, that any judgment, decree
or award obtained against LESSOR, or any succeeding owner
of LESSOR's interest, which is in any manner related to
his Lease, the Leased Premises or the LESSEE's use or
occupancy of the Lease Premises or the common areas
adjacent thereto, whether at law or in equity, shall be
satisfied only out of LESSOR's (or such succeeding
owner's) equity at such time in the Building and the
Property (or, if LESSOR or such owner has disposed of its
interest in the Building and the Property, then only to
the net proceeds of such disposition) and further agrees
to look only to such equity or net proceeds and to no
other assets of LESSOR (or such succeeding owners) for
satisfaction.
30.2 If any present or future LESSOR (or any owner of
LESSOR's interest hereunder) is a trust or trustee or
trustees of a trust, a joint venture, or firm or
partnership general or limited, neither any trustee nor
any beneficiary nor any shareholder of any said trust, nor
any joint venture or partner of any other such entity,
shall be personally liable to anyone under any term,
condition, covenant, obligation, or claim of damage or
legal or equitable claim arising out of this lease or the
Leased Premises or out of the use or occupancy of the
Leased Premises or the common areas adjacent thereto.
31. WAIVER OF
SUBROGATION 31.1 As used in this Section, the term "waiver of
subrogation clause" means a clause, endorsement or other
provision appearing in an insurance policy which provides
that the insurer waives any right of subrogation it may
have against LESSEE (if the clause is in a policy insuring
LESSOR) or against LESSOR (if the clause is in a polity
insuring LESSEE).
31.2 LESSOR and LESSEE (or its sublessee or assign, as the
case may be) each shall attempt to have a waiver of
subrogation clause included in all insurance policies
which it maintains insuring against loss or damage to the
Building or the Leased Premises, as the case may be or any
of the contents of the Building or the Leased Premises, as
the case may be due to fire or any of the other risks
which are customarily comprehended by the term "extended
coverage" in endorsements to fire insurance policies. If
the insurer
- 15 -
<PAGE>
charges an extra fee or premium for the waiver, the party
procuring the insurance shall pay any reasonable extra
cost for the waiver.
31.3 LESSOR releases LESSEE, and LESSEE releases LESSOR,
from all liability for loss or damages caused by fire or
the extended coverage casualties but this release is
subject to the following conditions and limitations:
(a) This release is effective only if, and to the
extent that, the loss or damage is covered by an insurance
policy maintained by one of the parties to this lease; and
(b) This release shall be effective only if the
insurance policy covering the loss or damage contains a
waiver of subrogation clause and a provision to the effect
that this release will not affect the validity of the
policy or the right of the insured to recover under the
policy.
31.4 LESSEE shall not acquire as insured under any
insurance carried by LESSOR or the Building any right to
participate in the adjustment of loss or to receive
insurance proceeds and agrees upon request promptly to
endorse LESSOR any checks or other instruments in payment
of loss in which LESSEE is named as payee.
32. HAZARDOUS
MATERIALS, OIL OR
TOXIC SUBSTANCES LESSEE will not dump, flush, or in any way introduce any
hazardous materials or oil or any other toxic substances
into the septic, sewage or other waste disposal system
serving the Leased Premises (the foregoing shall not
prevent the introduction of such substances into a waste
disposal system specifically designed to receive such
substances so long as said system is constructed and
maintained in accordance with all applicable governmental
regulations); and in the event of any such unpermitted
introduction, will clean up promptly any damage occasioned
by such. The LESSEE further agrees it will not generate,
store or use (except in accordance with all applicable
governmental regulations) or dispose of hazardous
materials or oil or toxic substances in or on the Lease
Premises or dispose of hazardous materials or oil or toxic
substances from the Leased Premises to any other location,
except a properly approved disposal facility and then only
in compliance with any and all Federal, State and local
laws and ordinances regulating such activity. "Hazardous
materials", "oil", and "toxic substances", as used in this
Section, shall have the same meanings as defined and used
in the Massachusetts Oil and Hazardous Material Release
Prevention Act, as amended; M.G.L.
- 16 -
<PAGE>
ch. 21E; the Comprehensive Environmental Response
Compensation and Liability Act of 1980, as amended, 42
U.S.C. Sections 9061 et seq.; in the Hazardous Materials
Transportation Act, 15 U.S.C. Section 180; in the Toxic
Substances Act, 15 U.S.C. Sections 860; et seq.; and in
the regulations adopted and publications promulgated
pursuant to said acts.
33. OPTION TO
EXTENT If no default by LESSEE remains uncured beyond any
applicable grace or cure period at the time of the
exercise of the option and at the commencement of any
extension term, LESSEE shall have the option or to extend
the initial term for an additional five-year period
commencing September 1, 1993 and expiring on August 31,
1998. Annual Fixed Rent during such extension term shall
be the greater of (a) the sum of Annual Fixed Rent plus
escalations and other rent adjustments for the last year
of the initial term or (b) "Fair Market Rent", which shall
be the product of 19,250 rentable square feet and the
annual fair market rent per rentable square foot for
comparable premises in comparable areas of Boston,
Massachusetts for a five year term commencing September 1,
1993 under the terms of this lease. Rent for the extension
term shall also incorporate such additional financial
terms in the nature of rent and rent adjustments
customarily then being included in leases for comparable
premises in such areas. LESSEE shall, during the extension
term, pay its proportionate share (currently 31.5%) of any
increase in Real Estate Taxes, in either case over the
base year then being quoted for leases in such premises in
such areas. Such payment shall be made in accordance with
the procedures set forth in Section 6.2 and 6.9 of the
lease. Except as otherwise set forth herein, all terms and
conditions of the lease shall apply during such extension
term.
The option to extend the lease shall be exercised and Fair
Market Rent shall be determined as follows:
(a) LESSEE shall exercise its option to extend by
notice to LESSOR by September 1, 1992.
(b) LESSOR shall furnish LESSEE LESSOR'S statement of
Fair Market Rent and a description of any additional
financial terms by October 1, 1992.
(c) By November 1, 1992, LESSEE shall by notice
accept LESSOR's statement of Fair Market Rent or dispute
such statement and description. (Failure timely to send a
notice under subparagraphs (a) or (c) above, as the case
may be, shall constitute
- 17 -
<PAGE>
an election not to exercise or to withdraw LESSEE'S
exercise of LESSEE'S extension option hereunder.)
In the case of dispute, the matters of Fair Market Rent
and the inclusion of any additional financial terms
promptly shall be submitted to the Boston office of the
American Arbitration Association ("AAA") with a request
for arbitration by three arbitrators who shall be MAI
appraisers with at least ten years experience as
appraisers of urban commercial real estate in the Greater
Boston area, such arbitration to be completed by December
31, 1992. If the AAA shall cease to provide arbitration
for commercial disputes, the dispute over Fair Market Rent
and the inclusion of such terms shall be submitted to any
successor organization proving substantially the same
services, and in the absence of such an organization, to a
court of competent jurisdiction under the arbitration act
of the Commonwealth of Massachusetts requesting the
appointment of arbitrators in accordance with the
provisions of the act. The cost of the arbitration shall
be borne equally by the parties. the lease shall be
extended in accordance with the arbitrators' decision.
Such decision may be entered and enforced by either LESSOR
or LESSEE in an appropriate action in a court of competent
jurisdiction.
The foregoing extension option may be exercised only by
AIDS Action Committee, Inc. and not by its assigns or
subtenants and only if AIDS Action Committee, Inc., at the
time of the exercise of the option and at the commencement
of the extension term is occupying the Leased Premises as
its main office.
34. IMPROVEMENT
ALLOWANCE In accordance with Section 13 of the lease, LESSEE agrees
to deliver to LESSOR a detailed floor plan layout together
with working drawings, written instructions and completion
schedule all prepared at LESSEE's expense (herein call
"Lessee's Plans"), reflecting the partitions and
improvements desired by LESSEE in the Leased Premises.
Within ten (10) days of the receipt of all of Lessee's
Plans, LESSOR shall review for written approval Lessee's
Plans, such approval shall not be unreasonably withheld.
LESSOR shall provide LESSEE with an improvement allowance
of $228,144.00 (plus the reasonable cost, not to exceed
$14,000.00) of installation of a sprinkler system on the
fourth floor and upgrade of the3/4" piping on the fifth
floor of the Building for LESSEE's alterations and
improvements, including general conditions and overhead,
in accordance with Exhibit C and reasonable amendments
thereto approved by LESSEE. Disbursement for construction
costs shall be made jointly payable
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<PAGE>
to LESSEE and LESSEE's contractor from time to time (but
no more frequently than once every three weeks) and shall
be conditioned on certification by LESSOR's architect of
satisfactory completion of the portion of the work in
questions and shall be made within 10 days of LESSEE's
presentation of the disbursement request. Notwithstanding
the foregoing provision, twenty percent (20%) of the
improvement allowance requested in each draw shall be
retained by LESSOR subject to final completion in
accordance with the plans and specifications and evidence
of payment of all liens.
35. ADDITIONAL
PROVISIONS It is also understood and agreed that the Rules and
Regulations attached hereto as Exhibit D are incorporated
herein by reference.
IN WITNESS WHEREOF, the parties hereto have executed this lease as an instrument
under seal on the day and year first above written.
LESSOR: LESSEE:
John Hancock Mutual Life AIDS Action Committee, Inc.
Insurance Company
By: /s/ Carl Hohmann /s/ Lawrence Kessler
-------------------------------- --------------------------------
Carl J. Hohmann Larry L. Kessler
its executive director
hereunto duly authorized.
- 19 -
<PAGE>
Exhibit A
Floor plans of floors 3 - 5.
<PAGE>
EXHIBIT B
For the purpose of Section 6.1:
[illegible] Expenses" shall mean all reasonable costs of LESSOR or leasing (as
the case may be), servicing, operating, [illegible] maintaining, and repairing
the building in which the [illegible] premises are located including, without
limitation, the costs [illegible] following: (i) supplies, materials and
equipment purchased [illegible] and total wage and salary costs paid to and on
account of [illegible] t to the extent engage in the operation, maintenance,
[illegible] cleaning (but only with respect to cleaning of the [illegible]
common areas) and repair of the building including [illegible] taxes and
so-called "fringe benefits"; (ii) building [illegible]furnished to tenants of
the building at LESSOR's cost and [illegible]maintenance performed by LESSOR's
employees or by [illegible] contractors under contract with LESSOR or LESSOR's
[illegible] from time to time; (iii) utilities consumed and expenses [illegible]
the operation and maintenance of the guiding facilities [illegible] thereto
including, without limitation, oil, gas, [illegible] (other than electricity to
serve the Leased Premises and [illegible] cable area in the building), water and
sewer charges [illegible] of restaurant usage), snow removal and fire
protection, [illegible] without limitation, fees paid to any governmental
[illegible] for any of the foregoing; (iv) insurance; and (v) [illegible] fees
(which terms hall include an imputed cost for a [illegible] amount of space in
the buildings; but [illegible] services, supplies, utilities and the like
provided [illegible] to the restaurant located on the first and second floors
[illegible]. If LESSOR, in its reasonable, judgment, installs a [illegible]
placement capital item in the building (including without [illegible] for the
conservation of the preservation of energy), the cost ) [illegible] amortized
over a reasonable period, including interest [illegible] then being charged by
institutional first mortgagees for [illegible] first mortgage loans on office
buildings which are [illegible] with the buildings, shall be included in
LESSOR's [illegible] expenses.
[illegible]OR's operating expenses shall not include payment of [illegible],
interest or other charges on mortgages or payment of any [illegible] LESSOR on
account of a ground lease of the land on which the [illegible] is situated or
lease of the building; costs of work or [illegible] for particular repairs
caused or occasioned by fire or [illegible] domain; advertising, legal and
marketing costs and leasing [illegible]; executive salaries of LESSOR or its
managing agents; [illegible] of so-called tenant improvements to rentable areas
in the [illegible] ; costs of services provided to fewer than all office or
costs of services provided solely to retail and/or [illegible] tenants; costs of
any capital improvement which results [illegible]material change in the size of
the Building or is not [illegible] required for continued operation of the
Building as a [illegible] older office and retail Building.
- 20 -
<PAGE>
EXHIBIT C
Feldkamp & Company
Architects
20 March 1988
FIRST ESTIMATE OF CONSTRUCTION COSTS
INTERIOR RENOVATION OF FOURTH FLOOR AND UPGRADING OF FIFTH AND PARTIAL THIRD
FLOORS AT 131 CLAREDON STREET
-------------------------------------------------------------------------------------------------
A. Fourth Floor
-------------------------------------------------------------------------------------------------
1. General Conditions: demolition of extra ductwork, items as required at $ 3,000
entry, insurance, bonds
-------------------------------------------------------------------------------------------------
6. Wood and Plastics: wood trim, built-in cabinetry 10,000
-------------------------------------------------------------------------------------------------
7. Thermal and Moisture: Sound insulation at conf. rooms 500
-------------------------------------------------------------------------------------------------
8. Doors and Window: assume 16 doors @ $500, miscellaneous tempered 8,000
glass partitions, hardware, exit devices
-------------------------------------------------------------------------------------------------
9. Finishes:
a. Gyp. board: assume 8 offices: 2400/s f.; 3 conf. rooms:
2100/s.f.; misc.: 2700/s.f. Total: 7200/s.f. @ 2.50 18,000
b. Floor prep: remove tile or level @ 1.50/s.f. 10,000
c. Carpet or carpet squares: 777 yards @ $20 15,540
d. Ceramic tile @ 2 toilet rooms Revised for Handicapped 2,500
e. Paint: 13,200 s.f. @ 65/s.f. 8,580
f. Ceiling repair & acoustic treatment or lay-in tile 7000/s.f. @$2 14,000
-------------------------------------------------------------------------------------------------
10. Specialties: assume chalkboards, tackboards: $1,500; handicap toilet
accessories: $3,000; Signage: $2,000 demountable partitions & storage
shelving: Not in Contract coatracks: $500 7,000
-------------------------------------------------------------------------------------------------
11. Equipment: Coffee room allowance 1,200
-------------------------------------------------------------------------------------------------
12. Furnishings: blinds for 45 windows @ $30 1,200
office furniture: Not in Contract.
-------------------------------------------------------------------------------------------------
15. Mechanical: HVAC upgrading and ductwork changes $2/s.f.
plumbing for Handicap toilet changes, etc. 15,000
Sprinkler: Not in Contract 1,500
-------------------------------------------------------------------------------------------------
16. Electrical: assume 120 convenience outlets @ $35 4,200
lighting and life safety 22,900
phone wiring: assume 4,000
-------
-------------------------------------------------------------------------------------------------
- 21 -
<PAGE>
-------------------------------------------------------------------------------------------------
SUBTOTAL FOURTH FLOOR 147,120
-------------------------------------------------------------------------------------------------
B. Fifth floor
-------------------------------------------------------------------------------------------------
New carpeting $ 15,540
-------------------------------------------------------------------------------------------------
Repaint all surfaces, repair vinyl 6,500
-------------------------------------------------------------------------------------------------
Miscellaneous moved doors and wall patching 2,000
-------------------------------------------------------------------------------------------------
Code requirements for handicap toilets 6,000
-------------------------------------------------------------------------------------------------
Electrical revisions 3,000
--------
-------------------------------------------------------------------------------------------------
SUBTOTAL FIFTH FLOOR $ 33,000
-------------------------------------------------------------------------------------------------
C. Partial Third Floor Allowance 10,000
--------
-------------------------------------------------------------------------------------------------
SUBTOTAL THIRD FLOOR 10,000
-------------------------------------------------------------------------------------------------
CONTRACTORS OVERHEAD AND PROFIT @ 20% 38,024
-------------------------------------------------------------------------------------------------
TOTAL PROJECT COST $228,144
-------------------------------------------------------------------------------------------------
- 22 -
<PAGE>
EXHIBIT D
RULES AND REGULATIONS FOR OFFICE TENANTS
1. The sidewalks, entrances, driveways, passages, courts, elevators,
vestibules, stairways, corridors or halls shall not be obstructed or
encumbered by any LESSEE or used for any purpose other than for ingress to
and egress from the Leased Premises and for delivery of merchandise and
equipment in a prompt and efficient manner using elevators and passageways
designated for such delivery by LESSOR. There shall not be used in any
space, or in the public hall of the building, either by a LESSEE or by
jobbers or others in the delivery or receipt of merchandise, any hand
trucks, except those equipped with rubber tires and sideguards. If LESSOR
keeps such a hand truck at the Building, it will, at reasonable times upon
reasonable request, make such hand truck available to LESSEE.
2. The water and wash closets and plumbing fixtures shall not be used for any
purposes other than those for which they were designed or constructed and
no sweepings, rubbish, rags, acids or other substances shall be deposited
therein, and the expense of any breakage, stoppage, or damage resulting
from the violation of this rule shall be borne by the LESSEE who, or whose
clerks, agents, employees or visitors, shall have caused it.
3. NO LESSEE shall sweep or throw or permit to be swept or thrown from the
Premises any dirt or other substances into any of the corridors or halls,
elevators, or out of the doors or windows or stairways of the Building and
LESSEE shall not use, keep or permit to be used or kept any foul or noxious
gas or substance in the Leased Premises or permit or suffer the Leased
Premises to be occupied or used in a manner offensive or objectionable to
LESSOR or other occupants of the Building by reason of noise, odors and/or
vi rations; or interfere in any way with other tenants or those having
business therein, nor shall any animals or birds be kept in or about the
Building. Smoking or carrying lighted cigars or cigarettes in the elevators
of the Building is prohibited.
4. No awnings or other projections shall be attached to the outside walls of
the Building without the prior written consent of LESSOR.
5. No sign, advertisement, notice or other lettering shall be exhibited,
inscribed, painted or affixed by any LESSEE on any part of the outside of
the Leased Premises or the Building or the inside of the Leased Premises if
the same is visible from the outside of the Leased Premises without the
prior written consent of LESSOR, except that the name of LESSEE may appear
on the entrance doors of the Leased Premises on each floor and on
[illegible] directory which LESSOR shall maintain in the [illegible] lobby.
In the event of the violation of the foregoing [illegible] LESSEE, LESSOR
may remove the same without any [illegible], and may charge the expense
incurred by such LESSEE, [illegible] be of a size, color and style approved
by LESSOR.
as contemplated by approved finish work, no LESSEE shall paint, drill into,
or in any way deface any part of the Premises or the Building of which they
form a part. No cutting or stringing of wires shall be permitted, with the
prior written consent of LESSOR, and as LESSOR [illegible]. No LESSEE shall
lay linoleum, or other similar
- 23 -
<PAGE>
covering, so that the same shall come in direct contact [illegible] floor
of the Leased Premises, and, if linoleum or similar floor covering is
desired to be used an [illegible] of builder's deadening felt shall be
first affixed floor, by a paste or other material, soluble in water,
[illegible] of cement or other similar adhesive material being [illegible]
prohibited.
LESSEE provides LESSOR with keys therefor, no additional or bolts of any
kind shall be placed upon any of the [illegible] windows by any LESSEE, nor
shall any changes be made [illegible] locks or mechanism thereof. Each
LESSEE must, upon termination of his tenancy, restore to LESSOR all keys of
[illegible], offices and toilet rooms, either furnished to, or [illegible]
procured by, such LESSEE, and in the event of the [illegible] any keys, so
furnished, such LESSEE shall pay to LESSOR [illegible] THEREOF.
[illegible], furniture, business equipment, merchandise and bulky
[illegible] of any description shall be delivered to and removed
[illegible] the Leased Premises only on the freight elevator and
[illegible] the service entrances and corridors or in an [illegible] way
reasonably approved by LESSOR and only during [illegible] in a manner
reasonably approved by LESSOR.
[illegible], soliciting and peddling in the Building is prohibited and each
tenant shall cooperate to prevent the same.
[illegible] shall have the right to prohibit any advertising by any
[illegible] which, in LESSOR's reasonable opinion, will [illegible] the
reputation of the Building or its desirability as a [illegible] for
offices, and upon written notice from LESSOR, [illegible] shall refrain
from or discontinue such advertising.
[illegible] for customary quantities of materials used in connection
[illegible] customary office equipment, LESSEE shall not bring or
[illegible] it to be brought or kept in or on the Leased Premises, any
flammable, combustible or explosive fluid, material, chemical substance, or
cause unusual or other objectionable odors to [illegible] in or emanate
from the Leased Premises.
- 24 -
<PAGE>
John Hancock Mutual Life Insurance Company
200 Clarendon Street
Boston, MA 02117
June 29, 1988
Aids Action Committee, Inc.
131 Clarendon Street
Boston, MA 02116
Re: 131 Clarendon Street, Boston, MA
Ladies and Gentlemen:
Reference is made to a certain lease between Aids Action Committee, Inc.
("Tenant") and John Hancock Mutual Life Insurance Company ("Landlord") dated
this even date for the premises located at 131 Clarendon Street, Boston,
Massachusetts ("Building"). The premises ("Premises") consists of a portion of
the third floor of the Building and the entire fourth and fifth floors of the
Building.
The parties acknowledge that the Landlord intends to install, at the
Landlord's expense, certain sprinkler devices on the third floor of the Building
and Tenant has requested, and Landlord has agreed, to postpone such installation
until calendar year 1989. In connection with such installation, Tenant hereby
agrees to provide Landlord access to the Premises for such installation and
Tenant agrees to cooperate with Landlord in such Landlord installation of the
sprinkler devices, such cooperation to include relocating Tenant employees from
the third floor during such installation to the extent necessary to affect the
installation. Landlord shall, in connection with such installation, restore the
Premises to substantially the condition the Premises were in immediately
preceding the installation, and upon the commencement of such installation shall
complete such installation within a reasonable period of time, subject to
matters outside of Landlord's control. This letter shall bind the undersigned
and its successors and assigns.
Sincerely,
JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY
John Hancock Properties, Inc.
By: Signature on File
--------------------------------------------------
Its: Real Estate Management Officer
- 25 -
<PAGE>
AIDS ACTION COMMITTEE, INC.
By: Signature on File
--------------------------------------------------
Its:
- 26 -
<PAGE>
John Hancock Mutual Life Insurance Company
200 Clarendon Street
Boston, MA 02117
June 23, 1988
Aids Action Committee, Inc.
131 Clarendon Street
Boston, MA 02116
Re: 131 Clarendon Street, Boston, MA
Ladies and Gentlemen:
We are executing today a lease for you for premises at 131 Clarendon
Street, Boston, MA 02116. I am writing this letter to confirm our agreement that
in order to provide you with wheelchair access to the premises we will, as
Landlord, permit you to use movable wooden wedges which will permit a wheelchair
to be rolled into the building lobby from the adjacent sidewalk. We will use our
best efforts to assist you by making reasonable arrangements for the storage of
a wheelchair and such wooden edges in the building lobby or near to the building
lobby.
It is understood that the use of the wooden wedge or wedges will not
involve any structural alteration to the building or the premises and its use
shall not unreasonably interfere with other tenants' access to or use of the
building, or violate any law, rule, regulation or ordinance affecting the
building. It is further understood that in the event we provide you with
alternative reasonable means of wheelchair access to the building lobby (at our
sole discretion), wooden wedges shall no longer be used by you for such access.
Further, in the event we provide wheelchair access to the elevators (at our sole
discretion) we shall no longer be required to use best efforts to provide
arrangements for storage of the wheelchair.
Sincerely,
Signature on File
John Hancock Properties, Inc.
John Hancock Mutual Life Insurance Company
- 27 -
<PAGE>
June 29, 1988
John Hancock Mutual Life Insurance Company
200 Clarendon Street
Boston, Massachusetts 02117
Re: 131 Clarendon Street, Boston, Massachusetts
Ladies and Gentlemen:
Reference is made to a certain Lease between John Hancock Mutual Life
Insurance Company and Aids Action Committee, Inc. dated this even date for
premises located at 131 Clarendon Street, Boston, Massachusetts ("Premises").
Tenant has requested and Landlord has agreed to execute that certain Design
Affidavit ("Affidavit") attached hereto and incorporated herein by reference as
Exhibit A in order to facilitate Tenant's leasehold improvements in the
Premises. As a material inducement in Landlord's executing the Affidavit, Tenant
hereby indemnifies and holds landlord harmless from and against any and all
claims, demands, causes of action, losses, damages, liabilities, costs and
expenses asserted against or incurred by Landlord by reason of or arising out of
the breach of failure of any of the certifications set forth in the Affidavit,
except (with respect to subsection (c) of the Affidavit) for matters arising out
of existing conditions not caused by Tenant.
AIDS ACTION COMMITTEE, INC.
By: Signature on File
---------------------------------------
Its:
- 28 -
<PAGE>
EXHIBIT A
FAST TRACK BUILDING PERMIT PROGRAM
FOR COMMERCIAL OFFICE BUILDINGS
DESIGN AFFIDAVIT (OWNER)
To the Inspectional Service Commissioner:
Re: (ADDRESS)
---------------------------------------------------------------------------
(WARD)
---------------------------------------------------------------------------
I certify that to the best of my knowledge, information and belief: (a) the
proposed work does not constitute a substantial alteration of an existing
building; (b) the proposed work does not involve a change of use, as defined in
the Boston Zoning Code and Massachusetts State Building Code; (c) that if any
violations of the building code, zoning code, or other applicable codes, laws
and regulations were discovered, the owner and/or tenant at his own expense and
without recourse to the city or any of its agencies, will correct or will have
corrected any such violations prior to the issuance of any required occupancy
permits.
Owner Name:
---------------------------------------------------------------------
Company Name:
-------------------------------------------------------------------
Address:
------------------------------------------------------------------------
Date:
---------------------------------
Then personally appeared the above named __________________ and made oath that
the above statement by him is true.
Before me,
------------------------------------
Notary Public
My commission expires
- 29 -
<PAGE>
FIRST AMENDMENT TO LEASE
This instrument is an Amendment to the Lease ("Lease") between John Hancock
Mutual Life Insurance Company ("Lessor") and Aids Action Committee, Inc.
("Lessee") dated this even date demising certain premises at 131 Clarendon
Street, Boston, Massachusetts ("Building"). Terms not defined herein, but
defined in the Lease, shall have the meanings given in the Lease.
RECITALS:
A. The Leased Premises comprise a portion of the third floor of the
Building and the entire fourth and fifth floors of the Building.
B. The Lessor and Lessee desire to amend the Lease to include an additional
forty (40) rentable square feet to the Leased Premises located on the third
floor of the Building, and the Lessee desires to obtain Lessor's consent to use
a portion of the third floor for meeting purposes from the date hereof to the
date of the commencement of the Lease Term, September 1, 1988;
NOW, THEREFORE, for good and valuable consideration, the receipt .and
sufficiency of which are hereby acknowledged, the Lease is hereby amended as
follows:
1. The Leased Premises shall contain approximately 19,290 rentable square
feet. Exhibit A, Page A-l of the Lease is hereby deleted and replaced with
Exhibit A, Page A-l attached hereto and incorporated herein by reference.
2. Lessee's Proportionate Share shall be 31.6%.
3. The Annual Fixed Rent shall be as follows:
The Lessee shall pay to the Lessor Annual Fixed Rent (herein "Fixed Rent")
at the rate of Three Hundred Eight Thousand Six Hundred Forty and 00/100
($308,640.00) dollars per year, payable in advance in monthly installments'
of Twenty Five Thousand Seven Hundred Twenty and 00/100 ($25,720.00)
dollars due and payable on the first day of each month. Effective September
1, 1989 Fixed Rent will increase to Three Hundred Twenty Seven Thousand
Nine Hundred Thirty and 00/100 ($327,930.00) dollars per year payable in
advance in monthly installments of Twenty Seven Thousand Three Hundred
Twenty Seven and 50/100 ($27,327.50) dollars.' Effective September 1, 1990
Fixed Rent will increase to Three Hundred Forty Seven Thousand Two Hundred
Twenty and 00/100 ($347,220.00) dollars per year, payable in advance in
monthly installments of Twenty Eight Thousand Nine Hundred Thirty Five and
00/100 ($28,935.00) dollars. Effective September 1, 1991 Fixed Rent will
increase to Three Hundred Sixty Six Thousand Five Hundred Ten and 00/100
($366,510.00) dollars per year(1) -- payable in advance in monthly
installment of Thirty Thousand Five Hundred Forty Two and 50/00
($30,542.50) dollars. Effective September 1, 1992 Fixed Rent will increase
to Three Hundred Eighty Five Thousand Eight Hundred and 00/100
($385,800.00) dollars per year, payable in advance in monthly installments
of Thirty Two Thousand One Hundred Fifty and 00/100 ($32,150.00) dollars.
<PAGE>
4. Lessor hereby grants to Lessee the right to use approximately 1,090
rentable square feet on the third floor of the Building ("Pre--leased Space!'),
more particularly designated on Exhibit A attached hereto and incorporated
herein by reference, from the date hereof to the Term Commencement Date of the
Lease. Lessee may use such Pre-leased Space in accordance with the terms of the
Lease, provided, however, Lessee shall not be obligated to pay to Lessor Annual
Fixed Rent, additional rent or any other .charges set forth in the Lease except
for utility charges. Lessee shall use such Pre-leased Space solely for meeting
purposes until the commencement of the Lease Term.
Except as hereinabove amended, the Lease shall remain in full force and
effect.
Executed as a sealed instrument this 29th day of June, 1988.
AIDS ACTION COMMITTEE, INC.
By: Signature on file
---------------------------------------
Its:
JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY
John Hancock Properties, Inc.
By: Signature on file
---------------------------------------
Its: Real Estate Management Officer
- 2 -
<PAGE>
SECOND AMENDMENT TO LEASE FOR PREMISES
LOCATED AT 131 CLARENDON STREET
BOSTON, MASSACHUSETTS
THIS SECOND AMENDMENT TO LEASE is made as of the 6th day of January, 1992
by and between JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY, a Massachusetts
corporation (hereinafter "Lessor"), with an address do Hancock Realty Investors
Incorporated, 200 Berkeley Street, 19th floor, Boston, Massachusetts 02117, and
AIDS ACTION COMMITTEE, INC., a Massachusetts corporation (hereinafter "Lessee"),
with an address at 131 Clarendon Street, Boston, Massachusetts 02116.
W I T N E S S E T H:
WHEREAS Lessor and Lessee entered into a lease dated June 30, 1988 (the
"Original Lease") for certain premises located at 131 Clarendon Street, Boston,
Massachusetts, more particularly described in the Original Lease (the "Leased
Premises"); and
WHEREAS, Lessor and Lessee amended the Original Lease by a First Amendment
To Lease dated June 29, 1988 (the "First Amendment") (the Original Lease, as
amended by the First Amendment is hereinafter referred to as the "Lease"); and
WHEREAS, Lessor and Lessee desire to further amend the Lease to extend the
Term for five (5) additional years, to expand the Leased Premises, and to permit
Lessee to make certain improvements to the Leased Premises.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Lessor and Lessee hereby amend the
Lease effective September 1, 1991 as follows:
1. Section 2, PREMISES, is deleted in Its entirety and the following shall
be inserted in its place: "("Leased Premises"): That portion of 131 Clarendon
Street, Boston, Massachusetts consisting of the portion of the third floor shown
as Suites 2, 3, 4, 5, and 6, the entire fourth floor, the entire fifth floor,
and the entire sixth floor, and containing approximately 26,330 rentable square
feet as shown on the attached Exhibit A and commonly known and numbered as 131
Clarendon Street, Boston, Massachusetts 02116, together with the right to use in
common, with others entitled thereto, the alleys, loading docks, sidewalks,
lobbies, hallways stairways, and passenger and freight elevators necessary for
access to said Leased Premises, and lavatories nearest thereto."
2. Section 3, TERM, is deleted in its entirety and the following shall be
inserted in its place: "The term of the Lease shall be for ten (10) years
commencing on September 1, 1988 and ending on August 31, 1998."
- 3 -
<PAGE>
3. At Section 4, ANNUAL FIXED RENT, the fourth and fifth sentences are
deleted in their entirety and the following shall be inserted in their place:
"Effective September 1, 1991, Fixed Rent shall be Three Hundred Ninety Four
Thousand Nine Hundred Fifty and 00/100 ($394,950.00) Dollars per year, payable
in advance in monthly installments of Thirty Two Thousand Nine Hundred Twelve
and 50/100 ($32,912.50) Dollars. Effective September 1, 1993, Fixed Rent shall
be Four Hundred Twenty One Thousand Two Hundred Eighty and 00/100 ($421,280.00)
Dollars per year, payable in advance in monthly installments of Thirty Five
Thousand One Hundred Six and 67/100 ($35,106.67) Dollars. Effective September 1,
1994, Fixed Rent shall be Four Hundred Forty Seven Thousand Six Hundred Ten and
00/100 ($447,610.00) Dollars per year, payable in advance in monthly
installments of Thirty Seven Thousand Three Hundred and 83/100 ($37,300.83)
Dollars. Effective September 1, 1995, Fixed Rent shall be Four Hundred Seventy
Three Thousand Nine Hundred Forty and 00/100 ($473,940.00) Dollars per year,
payable in advance in monthly installments of Thirty Nine Thousand Four Hundred
Ninety Five and 00/100 ($39,495.00) Dollars. Effective September 1, 1996, Fixed
Rent shall be Five Hundred Thousand Two Hundred Seventy and 00/100 ($500,270.00)
Dollars per year, payable in advance in monthly installments of Forty One
Thousand Six Hundred Eighty Nine and 11/100 ($41,689.17) Dollars. Effective
September 1, 1997, Fixed Rent shall be Five Hundred Twenty Six Thousand Six
Hundred and 00/100 ($526,600.00) Dollars per year, payable in advance in monthly
installments of Forty Three Thousand Eight Hundred Eighty Three and 33/100
($43,883.33) Dollars. Notwithstanding the foregoing, provided no default by
Lessee remains uncured beyond any applicable grace or cure period, no monthly
installments of Fixed Rent shall be due on May 1, 1992, June 1, 1992, and May 1,
1993."
4. Section 6.1, RENT ADJUSTMENT, is amended by adding the following
language at the end of the paragraph: "Effective September 1, 1991, Lessee's
operating expense base year shall be Calendar Year 1990, and Lessee's
proportionate share of the increase in operating expenses is 43.09%, calculated
as follows: 26,330 rentable square feet in Leased Premises divided by 61,110
rentable square feet in Building."
5. Section 6.4, RENT ADJUSTMENT, is amended by adding the following
language at the end of the paragraph: "Effective September 1, 1991, Lessee's
real estate: tax base year shall be Fiscal Year 1991, and Lessee's proportionate
share of the increase in real estate taxes is 43.09%, calculated as follows:
26,330 rentable square feet in Leased Premises divided by 61,110 rentable square
feet in Building."
6. At Section 6.8, RENT ADJUSTMENT, the first sentence is deleted in its
entirety and the following is inserted in its place: "It is understood by the
parties hereto that there are presently four tax billing periods for each fiscal
year, namely the billing period from July 1 through September 30 of each year,
the billing, period from October 1 through December 31 of each year, the billing
period from January 1 through March 30 of each year, and the billing period from
April 1 through June 30 of each year."
7. AS IS/SIXTH FLOOR ABATEMENT
Lessee accepts the entire Leased Premises and the remainder of the
Building in its current "As-Is" condition. Notwithstanding anything in the Lease
or this Amendment to the
- 4 -
<PAGE>
contrary, Lessee's obligation to pay the Annual Fixed Rent, additional rent for
operating expenses and the additional rent for taxes allocable to the sixth
(6th) floor of the Premises shall be abated until January 16, 1992.
8. Section 22, NOTICE, the first sentence is deleted in its entirety and
the following is inserted in its place: "Any notice from the Lessor to the
Lessee relating to the Leased Premises or to the occupancy thereof, shall be
deemed duly served, if hand delivered to the Leased Premises during normal
business hours addressed to the Lessee, Attn: Office Services Facilities
Manager, or, if mailed to the Leased Premises, registered or certified mail,
return receipt requested, postage prepaid, addressed to the Lessee, Attn: Office
Services Facilities Manager, or to such other address of which Lessor has been
given notice with a copy to Peabody & Arnold, 50 Rowes Wharf, Boston, MA 02110,
Attn: Donald E Vaughan, Esquire " Lessor's address for notices is deleted and
hereby amended by inserting the following in its stead:
"Hancock Realty Investors Incorporated
200 Berkeley Street
19th Floor
Boston, MA 02117"
9. Section 33, OPTION TO EXTEND, is deleted in its entirety and the
following is inserted in its place: "If no default by Lessee remains uncured
beyond any applicable grace or cure period at the time of the exercise of the
option and at the commencement of any extension term, Lessee shall have the
option to extend the initial term for an additional five-year period commencing
September 1,1998 and expiring on August 31, 2003. Annual Fixed Rent during such
extension term shall be "Fair Market Rent", which shall be the product of 26,330
rentable square feet and the annual fair market rent per rentable square foot
for comparable premises in comparable areas of Boston, Massachusetts for a
five-year term commencing September 1, 1998 under the terms of this Lease. Rent
for the extension term shall also incorporate such additional financial terms in
the nature of rent and rent adjustments customarily then being included in
leases for comparable premises in such areas. Lessee shall, during the extension
term, pay its proportionate share (currently 43.09%) of any increase in Lessor's
Operating Expenses and its proportionate share (currently 43.09%) of any
increase in Real Estate Taxes, in either case over the base year then being
quoted for leases in such premises in such areas. Such payments shall be made in
accordance with the procedures set forth in Section 6.2 and 6.9 of the Lease.
Except as otherwise set forth herein, all terms and conditions of the Lease
shall apply during such extension term.
The option to extend the Lease shall be exercised and Fair Market Rent shall be
determined as follows:
(a) Lessee shall exercise its option to extend by notice to Lessor by
September 1, 1997.
- 5 -
<PAGE>
(b) Lessor shall furnish Lessee Lessor's statement of Fair Market Rent and
a description of any additional financial terms by October 1, 1997.
(c) By November 1, 1997, Lessee shall by notice accept Lessor's statement
of Fair Market Rent or dispute such statement and description. (Failure timely
to send a notice under subparagraphs (a) or (c) above, as the case may be, shall
constitute an election not to exercise or to withdraw Lessee's exercise of
Lessee's extension option hereunder.)
In the case of dispute, the matters of Fair Market Rent and the inclusion of any
additional financial terms promptly shall be submitted to the Boston office of
the American Arbitration Association ("AAA") with a request for arbitration by
three arbitrators who shall be MAI appraisers with at least ten years experience
as appraisers of urban commercial real estate in the Greater Boston area, such
arbitration to be completed by December 31, 1997. If the AAA shall cease to
provide arbitration for commercial disputes, the dispute over Fair Market Rent
and the inclusion of such terms shall be submitted to any successor organization
providing substantially the same services, and in the absence of such an
organization, to a court of competent jurisdiction under the arbitration act of
The Commonwealth of Massachusetts requesting the appointment of arbitrators in
accordance with the provisions of that act. The cost of the arbitration shall be
borne equally by the parties. The Lease shall be extended in accordance with the
arbitrators' decision. Such decision may be entered and enforced by either
Lessor or Lessee in an appropriate action in a court of competent jurisdiction.
The foregoing extension option may be exercised only by AIDS Action Committee,
Inc. and not by its assigns or subtenants and only if AIDS Action Committee,
Inc., at the time of the exercise of the option and at the commencement of the
extension term is occupying the Leased Premises as its main office."
10. Section 34, IMPROVEMENT ALLOWANCE, shall be revised by adding the
following paragraph at the end of this Section: "Lessor shall provide Lessee
with an improvement allowance not to exceed $131,650.00 for Lessee's alterations
and improvements, including general conditions and overhead, in accordance with
Exhibit C-2 and reasonable amendments thereto approved by Lessor. Disbursement
for construction costs shall be made payable to Lessee from time to time and
shall be conditioned upon Lessor's receipt of reasonably sufficient data and
information, including without limitation invoices, contracts, agreements,
cancelled checks, and other evidence of the cost and dates of such improvements,
as will permit Lessor to calculate such Improvement Allowance. Payment shall be
made to Lessee within thirty (30) days of Lessee's presentation of the
disbursement request which request shall include certification by Lessee's
architect of satisfactory completion of the portion of the work in question
along with the information listed in the preceding sentence. Once installed, the
Improvements shall be part of the Premises and the sole property of Lessor."
11. Exhibit A, LEASED PREMISES, is deleted in its entirety and replaced
with a new Exhibit A attached hereto
12. Exhibit C, LESSEE'S ALTERATIONS AND IMPROVEMENTS, is amended by adding
the attached Exhibit C-2.
- 6 -
<PAGE>
13. Except as herein amended, the Lease is hereby ratified and confirmed
and shall remain in full force and effect, and all of the terms of the Lease are
incorporated herein.
EXECUTED, under seal as of the day and year first written.
JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY
By: Hancock Realty Investors Incorporated
By: /s/Richard Lewis
---------------------------------------
Richard A. Lewis
Its: Vice President
AIDS ACTION COMMITTEE, INC.
By: /s/Cheryl Schaffer
---------------------------------------
Cheryl Schaffer
Its: Deputy Executive Director
hereunto duly authorized
- 7 -
<PAGE>
Exhibit A
Floor Plans for floors 3-6.
<PAGE>
Exhibit C-2
Plans for the 3-6 floors
<PAGE>
THIRD AMENDMENT TO LEASE FOR PREMISES
LOCATED AT 131 CLARENDON STREET
BOSTON, MASSACHUSETTS
THIS THIRD AMENDMENT TO LEASE is made as of the [illegible] day of
January, 1993 by and between JOHN HANCOCK MUTUAL LIFE INSURANCE
COMPANY, a Massachusetts corporation (hereinafter "Lessor"), with an address do
Hancock Realty Investors Incorporated, 200 Berkeley Street, 19th Floor, Boston,
Massachusetts 02117, and AIDS ACTION COMMITTEE, INC., a Massachusetts
corporation (hereinafter "Lessee"), with an address at 131 Clarendon Street,
Boston, Massachusetts 02116.
WITNESSETH:
WHEREAS, Lessor and Lessee entered into a lease dated June 30, 1988 (the
"Original Lease") for certain premises located at 131 Clarendon Street, Boston,
Massachusetts, more particularly described in the Original Lease (the "Leased
Premises"); and
WHEREAS, Lessor and Lessee amended the Original Lease by a First Amendment
To Lease dated June 29, 1988 (the "First Amendment") and a Second Amendment To
Lease dated January 6, 1992 (the "Second Amendment") (the Original Lease, as
amended by the First and Second Amendments is hereinafter referred to as the
"Lease"); and
WHEREAS, Lessor and Lessee desire to further amend the Lease to expand the
Leased Premises and to make certain improvements to the expanded Leased
Premises.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Lessor and Lessee hereby amend the
Lease effective February 1, 1993 as follows:
1. Section 2, PREMISES, is deleted in its entirety and the following shall
be inserted in its place: "("Leased Premises"): That portion of 131 Clarendon
Street, Boston, Massachusetts consisting of the portion of the third floor shown
as Suites 2, 3, 4, 5, and 6, the entire fourth floor, the entire fifth floor,
the entire sixth floor, and a portion of the seventh floor, and containing
approximately 28,330 rentable square feet as shown on the attached Exhibit A and
commonly known and numbered as 131 Clarendon Street, Boston, Massachusetts
02116, together with the right to use in common, with others entitled thereto,
the alleys, loading docks, sidewalks, lobbies, hallways, stairways, and
passenger and freight elevators necessary for access to said Leased Premises,
and lavatories nearest thereto."
2. Item 3 in the Second Amendment To Lease is deleted in its entirety and
the following shall be inserted in its place: "Effective September 1, 1991,
Fixed Rent shall be Three Hundred Ninety-Four Thousand Nine Hundred Fifty and
00/100 ($394,950.00) Dollars per year, payable in advance in monthly
installments of Thirty-Two Thousand Nine Hundred Twelve and 50/100 ($32,912.50)
Dollars. Effective February 1, 1993, Fixed Rent shall be Four Hundred
- 8 -
<PAGE>
Twenty-Four Thousand Nine Hundred Fifty and 00/100 ($424,950.00) Dollars per
year, payable in advance in monthly installments of Thirty-Five Thousand Four
Hundred Twelve and 50/100 ($35,412.50) Dollars Effective September 1, 1993,
Fixed Rent shall be Four Hundred Fifty-Three Thousand Two Hundred Eighty and
00/100 ($453,280.00) Dollars per year, payable in advance in monthly
installments of Thirty-Seven Thousand Seven Hundred Seventy-Three and 33/100
($37,773.33) Dollars. Effective September 1, 1994, Fixed Rent shall be Four
Hundred Eighty-One Thousand Six Hundred Ten and 00/l00 ($481,610.00) Dollars per
year, payable in advance in monthly installments of Forty Thousand One Hundred
Thirty-Four and 17/100 ($40,134.17) Dollars. Effective September 1, 1995, Fixed
Rent shall be Five Hundred Nine Thousand Nine Hundred Forty and 00/100
($509,940.00) Dollars per year, payable in advance in monthly installments of
Forty-Two Thousand Four Hundred Ninety-Five and 00/100 ($42,495.00) Dollars.
Effective September 1, 1996, Fixed Rent shall be Five Hundred Thirty-Eight
Thousand Two Hundred Seventy and 00/1 00 ($538,270.00) Dollars per year, payable
in advance in monthly installments of Forty-Four Thousand Eight Hundred
Fifty-Five and 83/100 ($44,855.83) Dollars. Effective September 1, 1997, Fixed
Rent shall be Five Hundred Sixty-Six Thousand Six Hundred and 00/100
($566,600.00) Dollars per year, payable in advance in monthly installments of
Forty-Seven Thousand Two Hundred Sixteen and 67/100 ($47,216.67) Dollars. Not
withstanding the foregoing, provided no default by Lessee remains uncured beyond
any applicable grace or cure period, no monthly installment of Fixed Rent shall
be due on May 1, 1992, June 1, 1992 and May 1, 1993. In addition, Lessee shall
receive a rent abatement of Two Thousand Five Hundred and 00/100 ($2,500.00)
Dollars per month for the months of February, March, and April, 1993."
3. Section 6.1, RENT ADJUSTMENT is amended by adding the following language
at the end of the paragraph: "Effective February l, 1993, Lessee's operating
expense base year for the Leased Premises on the seventh floor shall be Calendar
Year 1992, and Lessee's proportionate share of the increase in operating
expenses is 3.27%, calculated as follows: 2,000 rentable square feet on the
seventh floor of the Leased Premises divided by 61,110 rentable square feet in
the Building."
4. Section 6.4, RENT ADJUSTMENT is amended by adding the following language
at the end of the paragraph: "Effective February 1, 1993, Lessee's real estate
tax base year for the Leased Premises on the seventh floor shall be Fiscal Year
1993, and Lessee's proportionate share of the increase in real estate taxes is
3.27%, calculated as follows: 2,000 rentable square feet on the seventh floor of
the Leased Premises divided by 61,110 rentable square feet in the Building.
5. In Item 9 in the Second Amendment To Lease, the second and fourth
sentences are deleted in their entirety and the following shall be inserted in
their place: "Annual Fixed Rent during such extension term shall be "Fair Market
Rent," which shall be the product of 28,330 rentable square feet and the annual
fair market rent per rentable square foot for comparable premises in comparable
areas of Boston, Massachusetts for a five-year term commencing September 1, 1998
under the terms of this Lease. Lessee shall, during the extension term, pay its
proportionate share (currently 46.36%) of any increase in Lessor's Operating
Expenses and its proportionate share (currently 46.36%) of any increase in Real
Estate Taxes, in either case over the base year then being quoted for leases in
such premises in such areas."
- 9 -
<PAGE>
6. Section 34, IMPROVEMENT ALLOWANCE, shall be revised by adding the
following paragraph at the end of this Section: "Lessor shall provide Lessee
with an improvement allowance not to exceed $20,000.00 for Lessee's alterations
and improvements to the Leased Premises on the seventh floor, including general
conditions and overhead, in accordance with plans which shall be submitted by
Lessee for Lessor's approval. Lessee's improvement allowance excludes costs for
electrical lighting and HVAC modifications which shall be performed by Lessor."
7. Exhibit A, LEASED PREMISES, is deleted in its entirety and replaced with
a new Exhibit A attached hereto.
8. Except as herein amended, the Lease is hereby ratified and confirmed and
shall remain in full force and effect, and all of the terms of the Lease are
incorporated herein.
EXECUTED, under seal as of the day and year first written.
JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY
By: Hancock Realty Investors Incorporated
By: /s/ Anne L. Pierrera
-------------------------------------------
Anne L. Pierrera
Its: Investment Officer
- 10 -
<PAGE>
AIDS ACTION COMMITTEE, INC.
By: /s/ Cheryl Schaffer
-------------------------------------------
Cheryl Schaffer
Its: Deputy Executive Director
hereunto duly authorized
- 11 -
<PAGE>
Exhibit A
Floor plans for floors 3-7
<PAGE>
FOURTH AMENDMENT TO LEASE FOR PREMISES
LOCATED AT 131 CLARENDON STREET
BOSTON, MASSACHUSETTS
THIS FOURTH AMENDMENT TO LEASE is made as of the 9th day of June, 1994 by
and between JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY, a Massachusetts
corporation (hereinafter "Lessor"), with an address do The Real Estate
Investment Group, 200 Berkeley Street, 19th Floor, Boston, Massachusetts 02117,
and AIDS ACTION COMMITTEE, INC., a Massachusetts corporation (hereinafter
"Lessee"), with an address at 131 Clarendon Street, Boston, Massachusetts 02116.
WITNESSETH:
WHEREAS, Lessor and Lessee entered into a lease dated June 30, 1988 (the
"Original Lease") for certain premises located at 131 Clarendon Street, Boston,
Massachusetts, more particularly described in the Original Lease (the "Leased
Premises"); and
WHEREAS, Lessor and Lessee amended the Original Lease by a First Amendment
To Lease dated June 29, 1988 (the "First Amendment"), a Second Amendment To
Lease dated January 6, 1992 (the "Second Amendment") and a Third Amendment to
Lease dated January 11, 1993 (the "Third Amendment") (the Original Lease, as
amended by the First, Second and Third Amendments is hereinafter referred to as
the "Lease"); and
WHEREAS, Lessor and Lessee desire to further amend the Lease to expand the
Leased Premises.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Lessor and Lessee hereby amend the
Lease effective July 1, 1994 as follows:
1. Section2, PREMISES, is deleted in its entirety and the following shall
be inserted in its place: "("Leased Premises"): That portion of 131 Clarendon
Street, Boston, Massachusetts consisting of the entire third floor, the entire
fourth floor, the entire fifth floor, the entire sixth floor, and a portion of
the seventh floor, and containing approximately 30,160 rentable square feet as
shown on the attached Exhibit A and commonly known and numbered as 131 Clarendon
Street, Boston, Massachusetts 02116, together with the right to use in common,
with others entitled thereto, the alleys, loading docks, sidewalks, lobbies,
hallways, stairways, and passenger and freight elevators. necessary for access
to said Leased Premises, and lavatories nearest thereto."
2. In Item 2 in the Third Amendment To Lease, the fourth, fifth, sixth and
seventh sentences are deleted in their entirety and the following shall be
inserted in their place: "Effective July 1, 1994, Fixed Rent shall be Four
Hundred Eighty-Two Thousand Five Hundred Sixty and 00/1 00 ($482,560.00) Dollars
per year, payable in advance in monthly installments of Forty Thousand Two
Hundred Thirteen and 33/100 ($40,213.33) Dollars. Effective September 1, 1994,
Fixed Rent shall be Five Hundred Twelve Thousand Seven Hundred Twenty
- 12 -
<PAGE>
and 00/100 ($512,720.00) Dollars per year, payable in advance in monthly
installments of Forty-Two Thousand Seven Hundred Twenty-Six and 67/100
($42,726.67) Dollars. Effective September 1, 1995, Fixed Rent shall be Five
Hundred Forty-Two Thousand Eight Hundred Eighty and 00/100 ($542,880.00) Dollars
per year, payable in advance in monthly installments of Forty-Five Thousand Two
Hundred Forty and 00/100 ($45,240.00) Dollars. Effective September 1, 1996,
Fixed Rent shall be Five Hundred Seventy-Three Thousand Forty and 00/1 00
($573,040.00) Dollars per year, payable in advance in monthly installments of
Forty-Seven Thousand Seven Hundred Fifty-Three and 33/1 00 ($47,753.33) Dollars.
Effective September 1, 1997, Fixed Rent shall be Six Hundred Three Thousand Two
Hundred and 00/100 ($603,200.00) Dollars per year, payable in monthly
installments of Fifty Thousand Two Hundred Sixty-Six and 67/1 00 ($50,266.67)
Dollars. Notwithstanding the foregoing, provided no default by Lessee remains
uncured beyond any applicable grace or cure period, Lessee shall receive a
rent-abatement of Two Thousand Four Hundred Forty and 00/100 ($2,440.00) Dollars
per month for the months of July and August 1994, and a rent abatement of Two
Thousand Five Hundred Ninety-Two and 50/1 00 ($2,592.50) for the month of
September 1994."
3. Section 6.1, RENT ADJUSTMENT, is amended by adding the following
language at the end of the paragraph: "Effective July 1, 1994, Lessee's
operating expense base year for 1,830 rentable square feet of the Leased
Premises on the third floor shall be Calendar Year 1993, and Lessee's
proportionate share of the increase in operating expenses is 3%, calculated as
follows: 1,830 rentable square feet on the third floor of the Leased Premises
divided by 61,110 rentable square feet in the Building."
4. Section 6.4, RENT ADJUSTMENT, is amended by adding the following
language at the end of the paragraph: "Effective July 1, 1994, Lessee's real
estate tax base year for 1,830 rentable square feet of the Leased Premises on
the third floor shall be Fiscal Year 1994, and Lessee's proportionate share of
the increase in real estate taxes is 3%, calculated as follows: 1,830 rentable
square feet on the third floor of the Leased Premises divided by 61,110
rentable square feet in the Building.
5. Item 5 in the Third Amendment To Lease is deleted in its entirety and
the following shall be inserted in its place: "Annual Fixed Rent during such
extension shall be "Fair Market Rent," which shall be the product of 30,160
rentable square feet and the annual fair market rent per-rentable square foot
for comparable remises in comparable areas of Boston, Massachusetts for a
five-year term commencing September 1, 1998 under the terms of this Lease.
Lessee shall, during the extension term, pay its proportionate share (currently
49.35%) of any increase in Lessor's Operating Expenses and its proportionate
share (currently 49.35%) of any increase in Real Estate Taxes, in either case
over the base year then being quoted for leases in such premises in such areas."
6. Exhibit A, LEASED PREMISES, is deleted in its entirety and replaced with
a new Exhibit A attached hereto.
7. Except as herein amended, the Lease is hereby ratified and confirmed and
shall remain in full force and effect, and all of the terms of the Lease are
incorporated herein.
- 13 -
<PAGE>
EXECUTED, under seal as of the day and year first written.
JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY
By: The Real Estate Investment Group
By: /s/ Carl J. Hohmann
---------------------------------------
Carl J. Hohmann
Its: Investment Officer
AIDS ACTION COMMITTEE, INC.
By: /s/ Cheryl Schaffer
---------------------------------------
Cheryl Schaffer
Its: Deputy Executive Director
hereunto duly authorized
- 14 -
<PAGE>
Exhibit A
Floor Plans of floors 3-7.
<PAGE>
FIFTH AMENDMENT TO LEASE FOR PREMISES
LOCATED AT 131 CLARENDON STREET
BOSTON, MASSACHUSETTS
THIS FIFTH AMENDMENT TO LEASE is made as of the 2nd day of December, 1997
by and between JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY, a Massachusetts
corporation (hereinafter "Lessor"), with an address c/a The Real Estate
Investment Group, 200 Clarendon Street, T-53, Boston, Massachusetts 02117, and
AIDS ACTION COMMITTEE OF MASSACHUSETTS, INC., a Massachusetts corporation
(hereinafter "Lessee"), with an address at 131 Clarendon Street, Boston,
Massachusetts 02116.
WITNESSETH:
WHEREAS, Lessor and Lessee entered into a lease dated June 30, 1988 (the
"Original Lease") for certain premises located at 131 Clarendon Street, Boston,
Massachusetts, more particularly described in the Origin Lease (the "Leased
Premises"); and
WHEREAS, Lessor and Lessee amended the Original Lease by a First Amendment
to Lease dated June 29, 1988 (the "First Amendment"), a Second Amendment to
Lease DATED January 6, 1992 (the "Second Amendment"), a Third Amendment to Lease
dated January 11, 1993 (the "Third Amendment") and a Fourth Amendment to Lease
dated June 9, 1994 (the "Fourth Amendment"), (the Original Lease, as amended by
the First, Second, Third and Fourth Amendments is hereinafter referred to as the
"Lease"); and
WHEREAS, Lessor and Lessee desire to further amend the Lease to extend the
Term for five (5) additional years, to downsize the Leased Premises, and to make
certain improvements to the Leased Premises.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Lessor and Lessee hereby amend the
Lease effective September 1, 1998 as follows:
1. Section 2, Premises, is deleted in its entirety and the following shall
be inserted in its place: ("Leased Premises"): That portion of 131 Clarendon
Street, Boston, Massachusetts consisting of the entire third floor, the entire
fourth floor, the entire fifth floor and the entire sixth floor and containing
approximately 28,160 rentable square feet as shown on the attached EXHIBIT A and
commonly known and numbered as 131 Clarendon Street, Boston, Massachusetts
02116, together with the right to use in common, with others entitled thereto,
the alleys, loading docks, sidewalks, lobbies, hallways, stairways, and
passenger and freight elevators necessary far access to said Leased Premises,
and lavatories nearest thereto."
2. Item 2 in the Second Amendment to Lease is deleted in its entirety and
the following shall be inserted in its place: The term of the Lease shall be for
five (5) years commencing on September 1, 1998 and ending on August 31, 2003."
- 15 -
<PAGE>
3. Item 2 in the Fourth Amendment To Lease is deleted in its entirety and
the following shall be inserted in its place: "Effective September 1,1998, Fixed
Rent shall be Five Hundred Ninety-One Thousand Three Hundred Sixty and 00/100
($591,360.00) Dollars per year, payable in advance in monthly installments of
Forty-Nine Thousand Two Hundred Eighty and 00/100 ($49,280.00)Dollars. Effective
September 1, 1999, Fixed Rent shall be Six Hundred Nineteen Thousand Five
Hundred Twenty and 00/100 ($619,520.00) Dollars per year, payable in advance in
monthly installments of Fifty-One Thousand Six Hundred Twenty-Six and 67/100
($51,626.67) Dollars. Effective September 4, 2000, Fixed Rent shall be Six
Hundred Forty-Seven Thousand Six Hundred Eighty and 00/100 ($647,680.00) Dollars
per year, payable in advance in monthly installments of Fifty-Three Thousand
Nine Hundred Seventy-Three and 33/100 ($53,973.33) Dollars. Effective September
1, 2001, Fixed Rent shall be Six Hundred Seventy-Five Thousand Eight Hundred
Forty and 00/100 ($675,840.00) Dollars per year, payable in advance in monthly
installments of Fifty-Six Thousand Three Hundred Twenty and 00/100 ($56,320.00)
Dollars. Effective September 1, 2002, Fixed Rent shall be Seven Hundred Four
Thousand and 001100 ($704,000.00) Dollars per year, payable in advance in
monthly installments of Fifty-Eight Thousand Six Hundred Sixty-Six and 67/100
($58,666.67) Dollars."
4. Section 6.1, RENT ADJUSTMENT is amended by adding the following language
at the end of the paragraph: "Effective September 1, 1998, Lessee's operating
expense base year for the Leased Premises shall be Calendar Year 1998, and
Lessee's proportionate share of the increase in operating expenses is 46.08%,
calculated as follows: 28,160 rentable square feet in the Leased Premises
divided by 61,110 rentable square feet in the Building."
5. Section 6.4, RENT ADJUSTMENT, is amended by adding the following
language at the end of the paragraph: "Effective September 1,1998, Lessee's real
estate tax base year for the Leased Premises shall be Fiscal Tax Year 1999, and
Lessee's proportionate share of the increase in real estate taxes is 46.08%,
calculated as follows: 28,160 rentable square feet in the LEASED Premises
divided by 61,110 rentable square feet in the Building.
6. Section 33, OPTION TO EXTEND. Item 9 in the Second Amendment to Lease,
Item 5 in the Third Amendment to Lease, and Item 5 in the Fourth Amendment to
Lease are deleted in their entirety.
7. Section 34, IMPROVEMENT ALLOWANCE. Item 10 in the Second Amendment to
Lease and Item 6 in the Third Amendment to Lease are deleted in their entirety.
8. Lessor and Lessee represent and warrant to each other that they have
dealt only with Meredith & Grew, Inc. ("Lessor's Broker") and Spaulding & Slye
"Lessee's Broker") in the negotiation of this Fifth Amendment, Each party agrees
to defend, indemnify and hold the other party harmless from and against any
claim, liability, cost or expense siting from a breach of the foregoing
representation. Lessor shall make payment of the brokerage fee due to Lessor's
Broker pursuant to amid in accordance with a separate agreement between Lessor
and Lessor's Broker. Lessee hereby agrees to indemnify and hold Lessor and
Lesson agent harmless of and from any and all damages, losses, costs or expenses
(including without limitation, all reasonable attorney's fees and disbursements)
by reason of any claim of or liability to any other broker or other person
(other than Lessor's Broker and Lessor's Broker) claiming through Lessee and
arising out of or in connection with the negotiation, execution and delivery of
this Fifth
- 16 -
<PAGE>
Amendment Additionally, Lessee acknowledges and agrees that Lessor shall have no
obligation for payment of any brokerage fee or similar compensation to any
person with whom Lessee has dealt or may in the future deal with respect to
leasing of any additional or expansion space in the Building or renewals or
extensions of this Lease (other than Lessor's Broker or other persons with whom
Lessor has dealt or with whom Lessor may deal in the future). Notwithstanding
the foregoing Lessor shall pay Lessee's Broker a brokerage fee equal to
$57,305.00 plus an additional fee of $27,175.00. Fifty percent (50%) of such
brokerage fees shall be paid upon the execution of this Fifth Amendment, and
fifty percent (50%) shall be paid upon the term commencement of this Fifth
Amendment. Lessee shall reimburse Lessor the sum of $27,175.00 which shall be
amortized over the term of the Lease earning a ten percent (10%) interest rate.
Lessee shall pay as additional rent on account of which reimbursement the amount
of $577.39 per month throughout the Lease Term.
9. Lessor shall repair the air conditioning water leakage and shall replace
the damaged ceiling tiles on the fourth and fifth floors of the Leased Premises
to Lessor's and Lessee's satisfaction. Lessor shall renovate the restrooms on
the fourth and sixth floors of the Leased Premises which shall include replacing
the ceramic tiles, sinks, and counters, refurbishing the toilet partitions, and
painting the restroom walls. Subject to causes beyond Lessor's control, Lessor
shall complete such work on or before September 1, 1998.
10. Exhibit A, LEASED PREMISES. is deleted in its entirety and replaced
with a new Exhibit A attached hereto.
11 Except as herein amended, the Lease is hereby ratified and confirmed
and shall remain in full force and effect, and all of the terms of the Lease are
incorporated herein.
EXECUTED, under seal as of the day and year first written.
JOHN HANCOCK MUTUAL LIFE INSURANCE
COMPANY
By: /s/ Anne W. Comstock
-------------------------------
Anne W. Comstock
Its: Senior Investment Officer
- 17 -
<PAGE>
AIDS ACTION COMMITTEE OF
MASSACHUSETTS, INC.
By: /s/ Mary Ann Kowalski
-------------------------------
Mary Ann Kowalski
Director of Administration and
Human Resources
- 18 -
<PAGE>
Exhibit A
---------
Floor plans for floors 3-6.
<PAGE>
EXHIBIT B
FLOOR PLAN SHOWING
SUBLEASED PREMISES
[See Attached]
- 19 -
<PAGE>
EXHIBIT C
FORM OF LETTER OF CREDIT
[See Attached]
- 20 -
<PAGE>
SILICON VALLEY BANK APPLICATION FOR STANDBY LETTER OF CREDIT
-------------------------------------------------------------------------------------------------------
LOCATION Santa Clara DATE 12/19/00
-------------------------------------------------------------------------------------------------------
For Bank Use Only
To: Silicon Valley Bank ----------------------------------------------------
L/C No.
---------------------------------------------------
Please issue an irrevocable standby letter of credit as shown on this application by Full Tex
Teletransmission or Express Mail.
--------------------------------------------- ---------------------------------------------------------
For Account of (Applicant, Name and In Favor of (Beneficiary, Name and
Address) Address)
ViaCell, Inc. AIDS Action Committee, Inc.
551 Boylston Street, Suite 40 131 Clarendon Street
Boston, MA 02116 Boston, MA 02116
=======================================================================================================
Expiration Date
To expire on February 20, 2002, with
automatic renewals on a
$200,640.00 year-to-year basis, but in no
event shall the Letter of Credit be
automatically renewed beyond
September 30, 2003
-------------------------------------------------------------------------------------------------------
Available by drafts at sight on you, your branch or your correspondent at your
option or you may waive draft requirement. Documents required (should clearly
reflect beneficiary's right or reason for drawing):
--------------------------------------------------------------------------------
See Attached Draft
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
All documents will be sent in one-cover by airmail unless stated otherwise under
Special instructions. Special Instructions:
--------------------------------------------------------------------------------
- 21 -
<PAGE>
--------------------------------------------------------------------------------
This Letter of Credit is to be automatically renewed on February 20, 2002 and on
a yearly basis thereafter. But, in no event shall the Letter of Credit be
automatically renewed beyond September 30, 2003
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
The opening of this credit is subject to the terms and conditions of the Standby
Letter of Credit (the Agreement") on the reverse. If this application is signed
by more than one person, the Agreement will be the contract of the signers both
as individuals and as a group.
I have read and agree to the terms and conditions on the reverse.
--------------------------------------------------------------------------------
NAME OF APPLICANT SIGNATURE TITLE
--------------------------------------------------------------------------------
ViaCell, Inc. /s/ Marc Beer Chief Executive Officer
-------------------------------------------------------
--------------------------------------------------------------------------------
SIGNATURE TITLE
--------------------------------------------------------------------------------
Treasurer
/s/ Signature on File
--------------------------------------------------------------------------------
- 22 -
<PAGE>
--------------------------------------------------------------------------------
TERMS AND CONDITIONS
1. Applicant will reimburse Silicon Valley Bank ("Banks"), on demand in
U.S. Dollars, the amount required to pay each draft or instrument in connection
with the Letter of Credit (the "Credit"). If the Credit is Issued in a foreign
currency, applicant will pay the U.S. Dollar equivalents (as determined by Bank)
of the foreign currency amounts of all drawings under the Credit. In addition to
such reimbursement, Applicant will pay Bank, on demand, interest (on the amount
disbursed by Bank to pay each instrument) at a per annum rate equal to Bank's
Prime Rate from time to time In effect plus %. Interest shall be calculated for
the actual number of days from the date of payment of the instrument to the date
of reimbursement on the basis of a 360 day year. Applicant authorizes and
directs Bank to debit Applicants deposit accounts with the Bank to satisfy
Applicants reimbursement obligations hereunder (including any interest thereon).
Any such debit shall constitute a payment on the reimbursement debt of Applicant
created under this Section 1. Notwithstanding anything to the contrary herein.
If. Applicants reimbursement obligations hereunder is a sublimit under an
already existing loan, the time of reimbursement and the Interest rate charge
shall be governed by the repayment terms under such loan to the extent that such
tears are Inconsistent with the, reimbursement terms under this Application, if
Applicant Is party to a Loan Agreement with Bank, the terms set forth therein
(including, without limitation, any terms of the Loan Agreement or ancillary
agreements relating to collateral) shall remain in full force and effect so long
as Applicant owes obligations to Bank in connection with this Credit Applicant
will comply with all governmental exchange regulations now or hereafter
applicable to the Credit or Instruments or payments related thereto and will pay
Bank, on demand, in United States currency, such amount as Bank may be required
to expend on account of such regulations. Upon the occurrence of any one or more
of the Events of Default described in paragraph 7 below, Applicant will pay Bank
a sum equal to Bank's outstanding liability under the Credit.
2. Applicant will pay Bank, on demand, Banks commission, interest where
chargeable, and all charges, expenses (including attorneys' fees), taxes and
fees paid or incurred by Bank in connection with the Credit and the enforcement
of Bank's rights hereunder.
3. Applicant agrees to hold Bank and its correspondents harmless against
and reimburse it for any claim, loss, liability, cost or damage (including
attorneys' fees) arising from or hi connection with the Credit if any law or
regulation or the Interpretation thereof by arty court or administrative or
governmental authority shall either (I) impose, modify or deem applicable any
reserve, special deposit, or similar requirement against letters of credit
issued by, or assets held by, or deposits in or for the account of, Bank or (H)
impose on Bank any insurance premium or other condition regarding the Credit and
the result shall be to increase the costs of issuing or maintaining the Credit
over that which Bank assumed In determining its fees as provided for shove,
then, upon written notice and demand by Bank, Applicant shall pay to Bank, from
time to time as specified by Bank, additional amounts which shall be sufficient
to compensate Bank for such increased cost.
4. The Uniform Customs aid Practice for Documentary Credits (1993
Revision), International Chamber of Commerce, Publication No. 500 and later
revisions adhered to by Bank, shall govern the Credit Neither Bank nor Its
correspondents shall be responsible for the condition, quality or delivery of
the property to which the Credit or any documents purportedly relate, or the
sufficiency, validity or genuineness of documents (including forgeries and
fraud) or insurance any delay, default or fraud by the shipper or others In
connection with the property or delay in arrival or failure to arrive of either
property or documents; any delay in giving or failure to give notice of arrival
or other notices; the validity or sufficiency of any endorsements; any error,
omission, or delay in giving or failure to give notice of arrival or other
notices; any error, omission, or delay in transmission of any messages. Any
action taken, or any failure to act, by Bank or any correspondent with the
Credit or the relative instruments, documents or property, if in good faith,
shall be binding on Applicant and shall not place Bank or any correspondent
under any liability to Applicant or others.
5. As security for the payment or performance of any or all of Applicant's
obligations and liabilities hereunder, Applicant grants Bank a security interest
in the following accounts: _____________________________________________________
6. We certify that the Board of Directors of Applicant has duly authorized
the officer(s) signing below to execute and deliver this Application to Bank. We
certify that the Board has authorized Applicant to borrow money from Bank, to
request Bank to issue the Credit and to reimburse Bank for all amounts paid by
Bank in connection with the Credit, all on terms agreed to from time to time, to
grant security for all obligations owing to Bank, and to execute and deliver
such documents, and take such other actions, as we necessary or appropriate in
connection with the performance of this Agreement. We certify that all the
resolutions authorizing the foregoing remain in full force and effect.
7. Each of the following shall constitute an Event of Default under this
Agreement (a) if Bank shall in good faith deem itself Insecure at any time; (b)
if any of the obligations or liabilities of Applicant to Bank hereunder or under
any other agreement between Applicant and Bank shall not be paid or performed
when due; (c) if Applicant shall become insolvent (d) If a petition shall be
filed by or against Applicant for arty relief under any bankruptcy laws or any
law relating to the relief of debtors; or (e) if any governmental authority,
receiver or court shall take possession of or exercise control over any
substantial part of the property of Applicant. Upon occurrence of an Event of
Default, unless Bank shall otherwise elect, any and all obligations and
liabilities of Applicant to Bank, whether now existing or hereafter incurred,
shall become due and payable without notice and Bank may exercise all the
remedies of a secured party under Division 9 of the California Uniform
Commercial Code.
By: /s/ Marc Beer CEO By: /s/ Mary Thistle
------------------------------- ---------------------------
Name: Marc Beer Name: Mary Thistle
----------------------------- -------------------------
Title: Chief Executive Officer Title: Treasurer
---------------------------- ------------------------
(President or Vice President) (Secretary, Asst. Secretary,
CFO or Treasurer)
- 23 -
<PAGE>
LETTER OF CREDIT FACSIMILE TRANSMISSION AGREEMENT
ViaCell, Inc.
ViaCell, Inc. wants Silicon Valley Bank ("Bank") to accept and to act on any
instructions in ViaCell's name that Bank receives by facsimile transmission (the
"FAXed Application") about letters of credit ("LC's") including, without
limitation, applications to issue or amend LC's.
Because Bank cannot verify that signatures and other information on FAXed
Applications are authorized or original, Bank will accept FAXed Applications
only if Client agrees as follows:
1. Bank may issue or amend LCs or otherwise act on instructions received by
FAXed Applications. Client accepts all risks that FAXed Applications are not
genuine, accurate or authorized.
2. Bank is not liable for damages, losses or costs of any kind (including
attorney fees) from acting or refusing to act based on FAXed Applications unless
Bank is guilty of gross negligence or willful misconduct.
3. ViaCell, Inc. will indemnify Bank and hold it harmless from any damages
losses or costs of any kind (including attorney fees) from acting or for
refusing to act based on FAXed Applications except if Bank is guilty of gross
negligence or willful misconduct.
4. Either party may terminate this Agreement at any time, but each remains
liable for LC's issued before the Agreement terminates.
5. California law governs this Agreement.
/s/ Marc Beer CEO
--------------------------------
ViaCell, Inc.
/s/ Mary Thistle
--------------------------------
Mary Thistle, Treasurer
12/28/00
--------------------------------
Date
- 24 -
<PAGE>
CERTIFICATE OF DEPOSIT
Authorization form
This letter is to authorize a Certificate of Deposit to be set up for VIACELL,
INC.
Account Information
Please set up this certificate of deposit for: $200,640.00.
Please take the funds from SVB account #3300210718.
Term in days 365.
---
INTEREST PAYMENT: Capitalize at maturity Yes X No
--- ---
Transfer at Maturity to account #3300210718
Transfer Monthly* to account # NA
--
*For terms equal to or greater than 90 days
Date Opened:
--------------------------------
Authorized signer /s/ Mary Thistle
--------------------------------------------
Printed Name Mary Thistle, Vice President of Finance and Treasurer
Phone Number 617-266-9255 x 133
Contact Name Mary Thistle or Jola McGrath (Controller) x 142
Silicon Valley Bank is authorized to open this certificate of deposit for:
Letter of Credit X
------------------
Cash management
-------------------
Trade finance
---------------------
Notes
-----------------------------
Other
-----------------------------
3rd party
-------------------------
- 25 -
<PAGE>
STANDBY LETTER OF CREDIT DRAFT
IRREVOCABLE STANDBY LETTER OF CREDIT NO. SVB00ISXXX
DATE: December 15, 2000
BENEFICIARY:
AIDS Action Committee, Inc.
131 Clarendon Street
Boston, MA 02116
AS "LANDLORD"
APPLICANT:
ViaCell, Inc.
551 Boylston Street, Suite 40
Boston, MA 02116
AS "TENANT"
AMOUNT: US Two Hundred thousand, six hundred and forty AND 00/100 U.S. DOLLARS)
EXPIRATION DATE:
--------------------------------------------------------------------------------
$200,640 through February 20, 2002
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
LOCATION: AT OUR COUNTERS IN SANTA CLARA, CALIFORNIA
DEAR SIR/MADAM:
WE HEREBY ESTABLISH OUR IRREVOCABLE STANDBY LETTER OF CREDIT NO. SVB001 IN YOUR
FAVOR AVAILABLE BY YOUR DRAFTS DRAWN ON US AT SIGHT AND ACCOMPANIED BY THE
FOLLOWING DOCUMENTS:
1. THE ORIGINAL OF THIS LETTER OF CREDIT AND ALL AMENDMENT(S), IF ANY.
- 26 -
<PAGE>
2. A DATED CERTIFICATION FROM THE BENEFICIARY SIGNED BY AN AUTHORIZED OFFICER,
FOLLOWED BY ITS DESIGNATED TITLE, STATING THE FOLLOWING:
"THE AMOUNT REPRESENTS FUNDS DUE AND OWING TO US PURSUANT TO THE TERMS OF
THAT CERTAIN SUBLEASE BY AND BETWEEN AIDS ACTION COMMITTEE, INC. AS
SUBLANDLORD, AND VIACELL, INC. AS SUBTENANT"
PARTIAL DRAWS ARE ALLOWED. THIS LETTER OF CREDIT MUST ACCOMPANY ANY DRAWINGS
HEREUNDER FOR ENDORSEMENT OF THE DRAWING AMOUNT AND WILL BE RETURNED TO THE
BENEFICIARY UNLESS IT IS FULLY UTILIZED.
DRAFT(S) AND DOCUMENTS MUST INDICATE THE NUMBER AND DATE OF THIS LETTER OF
CREDIT.
THIS LETTER OF CREDIT SHALL BE AUTOMATICALLY EXTENDED FOR AN ADDITIONAL PERIOD
OF ONE YEAR, WITHOUT AMENDMENT, FROM THE PRESENT OR EACH FUTURE EXPIRATION DATE
UNLESS AT LEAST SIXTY (60) DAYS PR1OR TO THE THEN CURRENT EXPIRATION DATE WE
NOTIFY YOU AND THE APPLICANT BY REGISTERED MAIL/OVERNIGHT COURIER SERVICE AT THE
ABOVE ADDRESSES THAT THIS LETTER OF CREDIT WILL NOT BE EXTENDED BEYOND THE
CURRENT EXPIRATION DATE. IN NO EVENT SHALL THIS LETTER OF CREDIT BE
AUTOMATICALLY EXTENDED BEYOND September 30,2003.
THIS LETTER OF CREDIT MAY ONLY BE TRANSFERRED IN ITS ENTIRETY BY THE ISSUING
BANK UPON OUR RECEIPT OF THE ATTACHED "EXHIBIT A" DULY COMPLETED AND EXECUTED BY
THE BENEFICIARY AND ACCOMPANIED BY THE ORIGINAL LETTER OF CREDIT AND ALL
AMENDMENTS, IF ANY, WITH THE PAYMENT OF OUR TRANSFER FEE OF 1/4 OF 1% OF THE
TRANSFER AMOUNT (MINIMUM USD 250.00).
ALL DEMANDS FOR PAYMENT SHALL BE MADE BY PRESENTATION OF THE ORIGINAL
APPROPRIATE DOCUMENTS PRIOR TO 10:00 A.M. CALIFORNIA TIME, ON A BUSINESS DAY AT
OUR OFFICE (THE "BANKS OFFICE") AT: SILICON VALLEY BANK 3003 TASMAN DRIVE, SANTA
CLARA, CA 95054, ATTENTION: STANDBY LETTER OF CREDIT NEGOTIATION SECTION OR BY
FACSIMILE TRANSMISSION AT: (408) 654-6211 OR (408) 969-6510; AND SIMULTANEOUSLY
UNDER TELEPHONE ADVICE TO: (408) 654-7120 OR (408) 654-3052), ATTENTION: STANDBY
LETTER OF CREDIT NEGOTIATION SECTION WITH ORIGINALS TO FOLLOW BY OVERNIGHT
COURIER SERVICE; PROVIDED, HOWEVER, THE BANK WILL DETERMINE HONOR OR DISHONOR ON
THE BASIS OF PRESENTATION BY FACSIMILE ALONE, AND WILL NOT EXAMINE THE
ORIGINALS.
PAYMENT AGAINST CONFORMING PRESENTATIONS HEREUNDER SHALL BE MADE BY BANK DURING
NORMAL BUSINESS HOURS OF THE BANKS OFFICE WITHIN TWO (2) BUSINESS DAYS AFTER
PRESENTATION.
- 27 -
<PAGE>
WE HEREBY AGREE WITH THE DRAWERS, ENDORSERS AND BONAFIDE HOLDERS THAT THE DRAFTS
DRAWN UNDER AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS LETTER OF
CREDIT SHALL BE DULY HONORED UPON PRESENTATION TO THE DRAWEE, IF NEGOTIATED ON
OR BEFORE THE EXPIRATION DATE OF THIS CREDIT.
THIS LETTER OF CREDIT IS SUBJECT TO THE UN1FORM CUSTOMS AND PRACTICE FOR
DOCUMENTARY CREDITS (1993 REVISION), INTERNATIONAL CHAMBER OF COMMERCE,
PUBLICATION NO. 500.
-------------------------------- ------------------------------------
AUTHORIZED SIGNATURE AUTHORIZED SIGNATURE
- 28 -
<PAGE>
EXHIBIT "A"
DATE:
TO: SILICON VALLEY BANK
3003 TASMAN DRIVE
SANTA CLARA, CA 95054
ATTN: INTERNATIONAL DIVISION
STANDBY LETTERS OF CREDIT
RE: STANDBY LETTER OF CREDIT
NO. ISSUED BY
SILICON VALLEY BANK, SANTA CLARA
L/C AMOUNT:
GENTLEMEN:
FOR VALUE RECEIVED, THE UNDERSIGNED BENEFICIARY HEREBY IRREVOCABLY TRANSFERS TO:
(NAME OF TRANSFEREE)
(ADDRESS)
ALL RIGHTS OF THE UNDERSIGNED BENEFICIARY TO DRAW UNDER THE ABOVE LETTER OF
CREDIT UP TO ITS AVAILABLE AMOUNT AS SHOWN ABOVE AS OF THE DATE OF THIS
TRANSFER.
BY THIS TRANSFER, ALL RIGHTS 'OF THE UNDERSIGNED BENEFICIARY IN SUCH LETTER OF
CREDIT ARE TRANSFERRED TO THE TRANSFEREE. TRANSFEREE SHALL HAVE THE SOLE RIGHTS
AS BENEFICIARY THEREOF, INCLUDING SOLE RIGHTS RELATING TO ANY AMENDMENTS,
WHETHER INCREASES OR EXTENSIONS OR OTHER AMENDMENTS, AND WHETHER NOW EXISTING OR
HEREAFTER MADE. ALL AMENDMENTS ARE TO BE ADVISED DIRECT TO THE TRANSFEREE
WITHOUT NECESSITY OF ANY CONSENT OF OR NOTICE TO THE UNDERSIGNED BENEFICIARY.
- 29 -
<PAGE>
THE ORIGINAL OF SUCH LETTER OF CREDIT IS RETURNED HEREWITH, AND WE ASK YOU TO
ENDORSE THE TRANSFER ON THE REVERSE THEREOF, AND FORWARD IT DIRECTLY TO THE
TRANSFEREE WITH YOUR CUSTOMARY NOTICE OF TRANSFER.
SINCERELY,
--------------------------------
(BENEFICIARY'S NAME)
--------------------------------
SIGNATURE OF BENEFICIARY
--------------------------------
SIGNATURE AUTHENTICATED
--------------------------------
(NAME OF BANK)
--------------------------------
AUTHORIZED SIGNATURE
- 30 -
<PAGE>
CORPORATE BORROWING RESOLUTION
Borrower:
ViaCell, Inc. Silicon Valley Bank
554 Boylston Street, Suite 40 3003 Tasman Drive
Boston, MA 02116 Santa Clara, CA 95054
I, Michael Lytton, being the duly elected Secretary of ViaCell, Inc. (the
"Company"), a Delaware corporation, hereby certify in such capacity that:
1. The Board of Directors of the Company, at a duly called meeting of such
Board of Directors held on November 15, 2000, adopted the resolutions set forth
in Exhibit A attached hereto, which have not been amended or repealed in any
respect since such date, and all of which remain in full force and effect as of
the date hereof.
2. The following persons are duly elected, qualified and acting officers of
the Company and occupy the offices set opposite their respective names, and that
the signatures set opposite their names are the true signatures of said
officers:
NAME OFFICE SIGNATURE
---- ------ ---------
Marc Beer Chief Executive Officer /s/ Marc Beer
------------------------
Mary Thistle Treasurer /s/ Mary Thistle
------------------------
IN WITNESS WHEREOF, I have signed this certificate this ______ day of
December, 2000.
------------------------
Michael Lytton
Secretary
- 31 -
<PAGE>
VIACELL, INC.
RESOLUTIONS ADOPTED AT A MEETING OF THE BOARD OF
DIRECTORS ON NOVEMBER 15, 2000
APPROVAL OF CORPORATE ACCOUNTS AT FINANCIAL INSTITUTIONS
RESOLVED: That each of the Chief Executive Officer, the Chief
Financial Officer or the Treasurer acting singly, be and
hereby is authorized and empowered on behalf of the
Company to open accounts at one or more financial
Institutions including but not limited to brokerage houses
("FINANCIAL INSTITUTIONS"), for the investment of the
Company's cash assets in securities or other property, in
the name and on behalf of the Company as they may deem
necessary.
FURTHER
RESOLVED: That each of the Chief Executive Officer, the Chief
Financial Officer or the Treasurer, acting singly, be and
hereby is authorized and empowered on behalf of the
Company to establish and maintain accounts with such money
market funds (the "FUNDS") as they may determine for and
in the name of the Company or any of its subsidiaries.
Each Fund is authorized to accept at any time for the
credit of this Company deposits by whomsoever made of
funds in whatever form and in whatever manner endorsed.
Each Fund is further authorized and directed to pay or
otherwise honor or apply, without inquiry and without
regard to the application of the proceeds thereof, checks,
telephone or wire instructions by an authorized officer of
the Company for redemptions of shares held in the
Company's account with such Fund, requesting that payment
of the redemption proceeds be made to a bank account
identified in the application form filed with respect to
opening such account and other orders for the redemption
of shares from such account including those drawn to the
individual order of a signer, when signed or otherwise
authorized by any one of the Chief Executive Officer, the
Chief Financial Officer or the Treasurer.
FURTHER
RESOLVED: That each of the Chief Executive Officer, the Chief
Financial Officer or the Treasurer, acting singly be and
hereby is authorized and empowered, on behalf: of the
Company (i) to designate and empower, from time to time,
either by name or by title, those other officers and
employees of the Company who shall have such authority to
draw and sign checks, drafts, instruments and other order
upon or with respect to such funds, securities or other
property of the Company on deposit in any Financial
Institution or Fund, either individually or jointly, as
the Chief Executive Officer, the Chief Financial Officer
or the Treasurer shall prescribe provided that such
- 32 -
<PAGE>
designation, if for amounts over $10,000 shall be made by
any two such officers and for amounts over $100,000, the
Chief Executive Officer's approval shall be obtained, and
(ii) to impose from time to time, such limitations and
conditions upon the signing authority of any such other
officers or employees, as the Chief Executive Officer, a
Vice President or the Treasurer in such officers
discretion shall be advisable,, provided that any
instructions for wire transfers of the Company's funds to
any third party shall require the approval of the Chief
Executive Officer.
FURTHER
RESOLVED: That this Board of Directors hereby adopts the form of any
votes or resolutions required by any Financial Institution
or Fund to be filed in connection with the opening and
maintaining of accounts if (i) in the opinion of the Chief
Executive Officer, the Chief Financial Officer or the
Treasurer executing the same, the adoption of such votes
or resolutions is necessary or desirable, and (ii) the
Secretary or any Assistant Secretary evidences such
adoption by inserting In the minutes of this meeting
copies of such votes or resolutions, which will thereupon
be deemed to be adopted by this Board of Directors with
the same force and effect as if presented at this meeting.
FURTHER
RESOLVED: That all designations of Financial Institutions of the
Company and any Fund of the Company heretofore given are
hereby in all respects ratified and confirmed and shall
continue in effect until terminated or revoked pursuant to
the foregoing resolutions.
FURTHER
RESOLVED: That the Secretary or any Assistant Secretary of the
Company, each acting singly, be and hereby is authorized
and empowered to certify in a signed, written instrument
delivered to any Financial Institution of the Company or
any Fund of the Company, now or hereafter designated: (i)
a copy of the foregoing resolutions, (ii) the names of the
persons and/or of the corporate offices, who or which,
from time to Vine, may have signing power granted pursuant
to such resolutions or heretofore granted by this Board of
Directors, upon any account of the Company at such
Financial Institution or any money market funds account of
the Company at such Fund, and (iii) a specimen of the
manual signature of each person who may have signing
authority upon any account of the Company at any Financial
Institution or Fund; each such Financial Institution and
Fund is hereby authorized to rely upon the said
certificates or notifications signed by the Secretary or
any Assistant Secretary unless and until the same is
revoked or modified by a similar certificate or
notification in wilting so signed and delivered to it.
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<PAGE>
FURTHER
RESOLVED: That the Secretary or any Assistant Secretary of the
Company, each acting singly, be and hereby is authorized
and directed to certify in a signed, written instrument
delivered to any Financial Institution or Fund of the
Company now or hereafter designated: (i) as to the truth,
accuracy. and completeness, of the foregoing resolutions,
(ii) that the provisions hereof are in conformity with the
charter and by-laws of the Company and (iii) that the
foregoing resolutions arid the authority thereby conferred
shall remain in full force and effect until the Company
officially notifies said Financial Institution or Fund to
the contrary in writing and said Financial Institution or
Fund may conclusively presume that such resolutions are in
effect and that the persons identified from time to time
as officers of the Company by certificate of the Secretary
or any Assistant Secretary have been duly elected or
appointed to and continue to hold such offices.
FURTHER
RESOLVED: That any person authorized hereby to establish and
maintain accounts on behalf of the Company will not, and
will not permit any other person to, take any action which
would result in the Company becoming an "investment
company" or an "affiliated company" or a "principal
underwriter" of an "investment company," as such terms are
defined in the Investment Company Act of 1940.
FURTHER
RESOLVED: That all investments made on behalf of the Company shall
be made in accordance with the investment policy presented
to the directors at this meeting.
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