-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, EbQrn8Qx2oNxXajPKYJqx5XsBcdBmNqon4sDh6srjUBw7NfNyPrL6PO6k1AVNhkI J7Ws6G7jI3KUxpvLOtGeSA== 0000815094-97-000002.txt : 19970225 0000815094-97-000002.hdr.sgml : 19970225 ACCESSION NUMBER: 0000815094-97-000002 CONFORMED SUBMISSION TYPE: 10-Q PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 19961231 FILED AS OF DATE: 19970206 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: ABIOMED INC CENTRAL INDEX KEY: 0000815094 STANDARD INDUSTRIAL CLASSIFICATION: SURGICAL & MEDICAL INSTRUMENTS & APPARATUS [3841] IRS NUMBER: 042743260 STATE OF INCORPORATION: DE FISCAL YEAR END: 0331 FILING VALUES: FORM TYPE: 10-Q SEC ACT: 1934 Act SEC FILE NUMBER: 001-09585 FILM NUMBER: 97519405 BUSINESS ADDRESS: STREET 1: 33 CHERRY HILL DR CITY: DANVERS STATE: MA ZIP: 01923 BUSINESS PHONE: 5087775410 MAIL ADDRESS: STREET 1: 33 CHERRY HILL DRIVE CITY: DANVERS STATE: MA ZIP: 01923 10-Q 1 FORM 10-Q FORM 10-Q SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 (Mark One) [X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the quarterly period ended DECEMBER 31, 1996 OR [ ] TRANSITION REPORT PURSUANT TO SECTION 13 or 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the transition period from to Commission file number 1-9585 ABIOMED, INC. (Exact name of registrant as specified in its charter) DELAWARE 04-2743260 (State of incorporation) (I.R.S. Employer No.) 33 CHERRY HILL DRIVE DANVERS, MASSACHUSETTS 01923 (Address of principal executive offices, including zip code) (508) 777-5410 (Registrant's telephone number, including area code) Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) or the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes [X] No [ ] As of December 31, 1996, there were 6,982,288 shares outstanding of the registrant's Common Stock, $.01 par value. ABIOMED, INC. AND SUBSIDIARIES TABLE OF CONTENTS
Page No. Part I - Financial Information: Item 1. Financial Statements Consolidated Balance Sheets December 31, 1996 and March 31, 1996 3-4 Consolidated Statements of Operations Three and Nine Months Ended December 31, 1996 and December 31, 1995 5 Consolidated Statements of Cash Flows Nine Months Ended December 31, 1996 and December 31, 1995 6 Notes to Consolidated Financial Statements 7-9 Item 2. Management's Discussion and Analysis of Financial Condition and Results of Operations 10-14 Part II - Other Information 15 Signatures 16
ABIOMED, INC. AND SUBSIDIARIES PART 1. FINANCIAL INFORMATION ITEM 1: FINANCIAL STATEMENTS CONSOLIDATED BALANCE SHEETS ASSETS
December 31, 1996 March 31, 1996 (unaudited) (audited) Current Assets: Cash and cash equivalents (Note 6) $1,341,094 $2,938,332 Short-term marketable securities (Note 6) 8,131,987 7,709,110 Accounts receivable, net 3,213,835 2,606,289 Inventories (Note 3) 2,049,899 1,653,512 Prepaid expenses and other current assets 183,431 92,280 Total current assets 14,920,246 14,999,523 Property and equipment, at cost: Machinery and equipment 2,834,563 2,378,851 Furniture and fixtures 205,316 156,048 Leasehold improvements 806,579 378,998 3,846,458 2,913,897 Less: Accumulated depreciation and amortization 2,518,782 2,331,145 1,327,676 582,752 Other assets, net (Note 7) 520,538 627,154 $16,768,460 $16,209,429
The accompanying notes are an integral part of these consolidated financial statements. ABIOMED, INC. AND SUBSIDIARIES PART 1. FINANCIAL INFORMATION ITEM 1: FINANCIAL STATEMENTS (continued) CONSOLIDATED BALANCE SHEETS (continued) LIABILITIES AND STOCKHOLDERS' INVESTMENT
December 31, 1996 March 31, 1996 (unaudited) (audited) Current Liabilities: Accounts payable $834,230 $777,943 Accrued expenses 1,394,352 1,486,981 Total current liabilities 2,228,582 2,264,924 Stockholders' Investment (Note 4): Class B Preferred Stock, $.01 par value- Authorized 1,000,000 shares Issued and outstanding-none - - - - Common Stock, $.01 par value- Authorized 25,000,000 shares at December 31, 1996 Issued and Outstanding- 6,982,288 shares at December 31, 1996 and 5,518,054 shares at March 31, 1996 69,823 55,180 Class A Common Stock $.01 par value Authorized - 2,346,000 shares Issued and Outstanding - 0 shares at December 31, 1996 and 1,428,000 shares at March 31, 1996 - - 14,280 Additional paid-in capital 36,963,696 36,625,221 Accumulated deficit (22,493,641) (22,750,176) Total stockholders' investment 14,539,878 13,944,505 $16,768,460 $16,209,429
The accompanying notes are an integral part of these consolidated financial statements. ABIOMED, INC. AND SUBSIDIARIES PART 1. FINANCIAL INFORMATION ITEM 1: FINANCIAL STATEMENTS (continued) CONSOLIDATED STATEMENTS OF OPERATIONS (unaudited)
Nine Months Ended Three Months Ended December 31, 1996 December 31, 1995 December 31 ,1996 December 31, 1995 Revenues: Products $8,095,356 $7,008,112 $2,335,801 $2,613,319 Contracts 2,739,015 2,353,272 985,166 897,976 10,834,371 9,361,384 3,320,967 3,511,295 Costs and expenses: Cost of products 3,623,033 2,809,482 1,500,180 997,157 Research and development 2,520,216 2,491,603 739,479 972,566 Selling, general and administrative 4,841,567 4,133,992 1,612,332 1,484,048 10,984,816 9,435,077 3,851,991 3,453,771 Net income (loss) from operations (445) (73,693) (531,024) 57,524 Interest and other income 406,980 395,265 150,443 131,539 Net income (loss) $256,535 $321,572 ($380,581) $189,063 Net income (loss) per common share (Note 5): $0.04 $0.05 ($0.05) $0.03 Weighted average number of common and dilutive common equivalent shares outstanding 7,191,848 6,988,400 6,976,121 6,993,772
The accompanying notes are an integral part of these consolidated financial statements. ABIOMED, INC. AND SUBSIDIARIES PART 1. FINANCIAL INFORMATION ITEM 1: FINANCIAL STATEMENTS (continued) CONSOLIDATED STATEMENT OF CASH FLOWS (unaudited)
Nine Months Ended December 31, 1996 December 31. 1995 CASH FLOWS FROM OPERATING ACTIVITIES: Net income $256,535 $321,572 Adjustments to reconcile net income to net cash provided by (used in) operating activities- Depreciation and amortization 294,253 248,370 Changes in assets and liabilities- Accounts receivable (607,546) (601,380) Inventories (396,387) (130,790) Prepaid expenses and other current assets (91,151) (153,441) Accounts payable 56,287 754,564 Accrued expenses (92,629) 271,429 Net cash provided by ( used in ) operating activities (580,638) 710,324 CASH FLOWS FROM INVESTING ACTIVITIES: Maturities of investments, net (422,877) 1,227,465 Purchases of property and equipment and improvements (932,561) (197,512) Purchases of Abiomed Limited Partnership units from limited partners (Note 7) - - (770,000) Net cash provided by (used in) investing activities (1,355,438) 259,953 CASH FLOWS FROM FINANCING ACTIVITIES: Proceeds from exercise of stock options and stock issued under employee stock purchase plan 338,838 134,947 Net cash provided by financing activities 338,838 134,947 NET INCREASE (DECREASE) IN CASH AND EQUIVALENTS, EXCLUDING INVESTMENTS (1,597,238) 1,105,224 CASH AND CASH EQUIVALENTS, EXCLUDING INVEST- MENTS, AT BEGINNING OF PERIOD 2,938,332 614,091 CASH AND CASH EQUIVALENTS , EXCLUDING INVEST- MENTS, AT END OF PERIOD $1,341,094 $1,719,315
The accompanying notes are an integral part of these consolidated financial statements. ABIOMED, INC. AND SUBSIDIARIES PART 1. FINANCIAL INFORMATION (continued) ITEM 1: FINANCIAL STATEMENTS (continued) NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (unaudited) 1. Basis of Preparation The unaudited consolidated financial statements of ABIOMED, Inc. (the Company), presented herein have been prepared in accordance with the instructions to Form 10-Q and do not include all of the information and note disclosures required by generally accepted accounting principles. These statements should be read in conjunction with the consolidated financial statements and notes thereto included in the Company's latest audited financial statements, which are contained in the Company's Form 10-K for the year ended March 31, 1996, which was filed with the Securities and Exchange Commission. In the opinion of management, the accompanying consolidated financial statements include all adjustments (consisting only of normal, recurring adjustments) necessary to summarize fairly the Company's financial position and results of operations. The results of operations for the nine months ended December 31, 1996 may not be indicative of the results that may be expected for the full fiscal year. 2. Principles of Consolidation The consolidated financial statements include the accounts of the Company and its wholly-owned subsidiaries, ABIOMED Cardiovascular, Inc., ABIOMED R&D Inc., ABIODENT, Inc., Abiomed Research and Development, Inc., ABD Holding Company, Inc., and the accounts of its majority- owned subsidiary Abiomed Limited Partnership (see Note 7). All significant intercompany accounts and transactions have been eliminated in consolidation. 3. Inventories Inventories include raw materials, work-in-process, and finished goods and are priced at the lower of cost (first-in, first-out) or market and consist of the following:
December 31, 1996 March 31, 1996 Raw Materials $986,670 $799,548 Work-in-Process 460,386 428,287 Finished Goods 602,843 425,677 TOTAL $2,049,899 $1,653,512
Finished goods and work-in-process inventories consist of direct material, labor and overhead. ABIOMED, INC. AND SUBSIDIARIES PART 1. FINANCIAL INFORMATION (continued) ITEM 1: FINANCIAL STATEMENTS (continued) NOTES TO CONSOLIDATED FINANCIAL STATEMENTS(unaudited, continued) 4. Stockholders' Investment Effective July 31, 1996, in accordance with the rights for the Class A Common Stock, 1,428,000 shares of Class A Common Stock $0.01 par value were converted into an equal number of shares of the Company's $0.01 par value Common Stock. In the three months ended December 31, 1996, options to purchase 50,000 shares of Common Stock were granted at fair market value with exercise prices ranging from $11.00 to $13.50 per share. Options to purchase 28,000 shares were canceled during the quarter. Options to purchase 10,150 shares were exercised in the third quarter at exercise prices ranging from $5.75 to $13.50 per share. 5. Net Income Per Common Share Net income (loss) per common and common equivalent share is computed by dividing net income (loss) by the weighted average number of common and common equivalent shares outstanding during the period using the treasury stock method. Common equivalent shares, such as stock options, have not been included in the per share calculation where the effect of their inclusion would be antidilutive. No common equivalent shares are considered dilutive in the three month period ended December 31, 1996, in which a loss is reported because all such common equivalent shares are antidilutive. 6. Cash and Cash Equivalents The Company classifies any marketable security with a maturity date of 90 days or less at the time of acquisition as a cash equivalent. Securities, including marketable securities, with original maturities of greater than 90 days are classified as investments. Investments are classified as long-term investments when their maturities exceed one year from the balance sheet date. The Company reports investments at amortized cost plus accrued interest. 7. Other Assets Other assets represent the Company's majority interest in the assets of the Abiomed Limited Partnership. This amount is being amortized over five years, its estimated useful life. Abiomed Limited Partnership (the Partnership) was formed in March 1985 and provided initial funding for the design and development of certain of the Company's products. ABIOMED, INC. AND SUBSIDIARIES PART 1. FINANCIAL INFORMATION (continued) ITEM 1: FINANCIAL STATEMENTS (continued) NOTES TO CONSOLIDATED FINANCIAL STATEMENTS(unaudited, continued) 7. Other Assets (continued) Through August 3, 2000, the Company owes a royalty to the Partnership of 5.5% of certain revenues from these products. Because the Company owns 61.7% of the Partnership, the net royalty expense to the Company is approximately 2.1% of these product revenues. This royalty formula is subject to certain maximum amounts and to certain additional adjustments in the event that the Company sells the technology. The Partnership is inactive except with respect to receiving and distributing proceeds from these royalty rights. ABIOMED, INC. AND SUBSIDIARIES PART 1. FINANCIAL INFORMATION (continued) ITEM 2: MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS RESULTS OF OPERATIONS OVERVIEW Recall The Company's results of operating for the quarter ended December 31, 1996 were adversely affected by the Company's voluntary recall of certain production lots of disposable blood pumps for its BVS-5000. As a result of the recall, the Company ended the quarter with a product backlog of unshipped customer orders totaling approximately $662,000, compared to virtually no product backlog as of the end of the comparable period of the prior year. As previously announced, the Company discovered that a small number of single-use blood pumps exhibited a defect in a molded part purchased from a third-party vendor. To the Company's knowledge, no patient has been affected by the defect. In addition to the direct costs of replacing blood pumps in the affected lots, the Company's cost of goods sold for its quarter ended December 31, 1996 also includes expenses incurred to modify production processes and inspection to prevent similar occurrences in the future. The Company is working to increase its manufacturing volumes of BVS blood pumps to meet the demands required to ship its backlog, fill new orders and replace all of the blood pumps subject to recall. The Company believes that it will be able to meet substantially all of these demands by the end of the first quarter of its upcoming fiscal year. New Product Development While the recall discussed above significantly impacts the Company's short-term results of operations, the Company has been proceeding with its longer term goal of developing its permanent cardiac support products, in particular the implantable total artificial heart ("TAH"). The Company has begun operating from its recently expanded facilities designed for the development and production of the TAH and begins its fourth quarter of fiscal 1997 with a substantial manpower expansion of its TAH development team. The Company's current staff of full-time employees has increased to one hundred fifteen. NET INCOME (LOSS) Net loss and loss per share for the three months ended December 31, 1996, were approximately $381,000 and $0.05 per share, respectively. These losses compare to net income and income per share of approximately $189,000 and $0.03 per share, respectively, in the same period of the previous year. Net income and income per share for the nine months ended December 31, 1996, were approximately $257,000 and $0.04 per share, respectively. These earnings compare to net income and income per share of approximately $322,000 and $0.05 per share in the same period of the previous year. ABIOMED, INC. AND SUBSIDIARIES PART 1. FINANCIAL INFORMATION (continued) ITEM 2: MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS(continued) REVENUES In the three months ended December 31, 1996, total revenues were approximately $3,321,000, 5% less than total revenues of approximately $3,511,000 in the same period of the previous year. Product revenues were approximately $2,335,000, 11% less than product revenues of approximately $2,613,000 in the same period of the previous year. These results were affected by the product recall, including the backlog of $662,000, which contributed to decreased domestic unit sales of the disposable BVS blood pump and related accessories partially offset by increased average selling prices of these products. More than 90% of total product revenues in the quarter were derived from domestic sources. Revenues from Research and Development (R&D) contracts and grants for this quarter were approximately $985,000, 10% higher than total revenues of approximately $898,000 reported in the same quarter of the previous year. This increase primarily reflected timing of scheduled activities under existing contracts and grants. In the nine months ended December 31, 1996, total revenues were approximately $10,834,000, 16% higher than total revenues of approximately $9,361,000 in the same period of the previous year. Product sales for the first nine months of fiscal 1997 were approximately $8,095,000 compared with approximately $7,008,000 for the same period of the previous year, an increase of 16%. This growth primarily reflected increased average selling prices of the disposable BVS blood pump and higher unit sales of the BVS console and related accessories to an expanded installed customer base. Revenues from R&D contracts and grants for the nine months ended December 31, 1996 were approximately $2,739,000, 16% higher than total revenue of approximately $2,353,000 in the same period of the prior year. The increase primarily reflected the timing of scheduled activities under existing contracts and grants. In aggregate, as of December 31, 1996, the Company's backlog of research and development contracts and grants totaled approximately $11,800,000 compared to a backlog of approximately $5,500,000 as of March 31, 1996. The majority of this increase was due to a four year cost-plus-fixed- fee extension of approximately $8,500,000 to the Company's contract with the National Heart, Lung and Blood Institute (NHLBI) to continue development of the Company's battery-powered implantable total artificial heart (TAH). Included in the December 31, 1996 backlog was approximately $7,800,000 from this TAH contract and approximately $3,600,000 for continued research and development of an implantable Heart Booster. All such contracts contain provisions making them terminable at the convenience of the government. ABIOMED, INC. AND SUBSIDIARIES PART 1. FINANCIAL INFORMATION (continued) ITEM 2: MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS(continued) REVENUES (continued) Product revenues from the Company's dental subsidiary, ABIODENT, Inc., represented approximately 10% of total revenues for the nine months ended December 31, 1996. Dental product revenues, compared to the corresponding periods of the prior fiscal year, were relatively unchanged for the three months ended December 31, 1996 and increased approximately 27% for the nine months ended December 31, 1996. COSTS AND EXPENSES Total costs and expenses for the three months ended December 31, 1996, were approximately $3,852,000, 11% higher than total costs and expenses of approximately $3,454,000 in the same fiscal quarter of the previous year. The majority of this increase reflected expenses incurred to support higher revenues and recall related costs. Cost of products sold as a percentage of product revenues increased to approximately 64% in the three month period ended December 31, 1996 from approximately 38% in the same quarter of the previous year. This increase in costs as a percentage of product revenues primarily reflected increased costs associated with the production of the disposable BVS blood pump, primarily costs associated with the recall as discussed above. Total research and development costs decreased during the third fiscal quarter of fiscal 1997 to approximately $739,000, a 24% decrease from research and development costs of approximately $973,000 incurred during the same fiscal period of the previous year. The decrease primarily reflected the timing of scheduled expenditures under cost-plus fixed-fee contracts and grants. The Company anticipates that its research and development costs will increase, particularly in connection with the continued development of the TAH. Selling, general and administrative expenses for the three months ended December 31, 1996, increased to approximately $1,612,000, 9% higher than selling, general and administrative expenses in the same fiscal quarter of the previous year. This increase primarily reflected increased sales and marketing expenses, particularly increased personnel. Total costs and expenses for the nine months ended December 31, 1996 increased to $10,985,000, 16% higher than total costs and expenses of approximately $9,435,000 for the first nine months of last year. The increase was primarily attributable to higher revenue levels attained during the first nine months of fiscal 1997 and to a lessor extent the recall. Cost of products sold as a percentage of product revenues increased to approximately 45% in the first nine months of fiscal 1997 from approximately 40% in the same nine month period of the previous fiscal year. ABIOMED, INC. AND SUBSIDIARIES PART 1. FINANCIAL INFORMATION (continued) ITEM 2: MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS(continued) COSTS AND EXPENSES (continued) This increase in cost as a percentage of revenues primarily reflected costs related to the recall. Total research and development costs increased to approximately $2,520,000 for the nine months ended December 31, 1996, approximately even with the amount reported for the same period in the previous fiscal year. Selling, general and administrative expenses for the nine months ended December 31, 1996 increased to approximately $4,842,000, 17% higher than selling, general and administrative expenses in the nine month period ended December 31, 1995. This increase primarily reflected increased sales and marketing expenses, particularly increased personnel and sales commissions, related to the increase in product revenues. INTEREST AND OTHER For the three months ended December 31, 1996, interest and other was approximately $150,000 14% higher than interest income and other for the same quarter of the previous fiscal year. For the nine months ended December 31, 1996, interest and other was approximately $407,000 and approximately even with interest and other in the corresponding quarter of the prior year. Income taxes incurred during these periods were not material and the Company continues to have significant net tax operating loss carryforwards and tax credit carryforwards. LIQUIDITY AND CAPITAL RESOURCES As of December 31, 1996, the Company's balance sheet included $9,473,000 in cash and short-term investments, a decrease of approximately $1,174,000 from March 31, 1996. This decrease primarily reflected approximately $932,000 of cash used for equipment purchases and leasehold improvements and approximately $581,000 used in operations, partially offset by approximately $339,000 in proceeds from the exercise of employee stock options. The Company also has a $3,000,000 line of credit from a bank that expires on September 30, 1997, which was entirely available at December 31, 1996. For the nine months ended December 31, 1996, net cash provided by operating activities included net income of approximately $257,000, including depreciation and amortization expenses of $294,000, and an increase in accounts payable of approximately $56,000. These sources of cash were partially offset by an increase in accounts receivable of $608,000, an increase in inventory of $396,000, primarily related to the BVS consoles, a decrease in accrued expenses of approximately $93,000 and increase in prepaid expenses of $91,000. ABIOMED, INC. AND SUBSIDIARIES PART 1. FINANCIAL INFORMATION (continued) ITEM 2: MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS(continued) LIQUIDITY AND CAPITAL (continued) Net cash used in investing activities included approximately $423,000 of net maturities of short-term investments and approximately $932,000 of purchases and improvements of property and equipment. During the first nine months of fiscal 1997, the Company received proceeds of approximately $339,000 from the exercise of stock options under the 1992 Combination Stock Option Plan. Although the Company does not currently have significant capital commitments, the Company believes that it will continue to make significant investments in the coming years to support the development and commercialization of its products under development. The Company believes that its revenues and existing resources are sufficient to meet its current needs but that additional funding will be necessary to effectively develop and potentially commercialize certain products under development, particularly the TAH. HEALTH CARE REFORM Private and government proposals for significant health care reform are expected to continue to affect healthcare expenditures in the United States as well as internationally where the company sells or plans to sell its products. The Company cannot assess at this time the potential impact that healthcare trends may have on future results because of uncertainties surrounding any unforseeable changes. *** ABIOMED, INC. AND SUBSIDIARIES PART II. OTHER INFORMATION Item 1. Legal Proceedings No material proceedings Item 2. Changes in Securities None Item 3. Defaults upon Senior Securities None Item 4. Submission of Matters to a Vote of Security Holders None Item 5. Other Information None Item 6. Exhibits and Reports on Form 8-K a) Exhibits 10.02 Lease Agreement: 33 Cherry Hill Drive, Danvers, MA 10.03 First Amendment to Lease: 33 Cherry Hill Drive b) Reports on Form 8-K None ABIOMED, INC. AND SUBSIDIARIES PART II. OTHER INFORMATION SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized. ABIOMED, Inc. Date: February 6, 1997 /s/ David M. Lederman David M. Lederman CEO and President Date: February 6, 1997 /s/ John F. Thero John F. Thero Vice President Finance and Administration; and Treasurer Chief Financial Officer Principal Accounting Officer 16 EX-10.02 2 LEASE AMENDMENT THE FLATLEY COMPANY STANDARD FORM OF INDUSTRIAL LEASE SUBMISSION NOT AN OPTION THE SUBMISSION OF THIS LEASE FOR EXAMINATION AND NEGOTIATION DOES NOT CONSTITUTE AN OFFER TO LEASE, A RESERVATION OF, OR OPTION FOR THE PREMISES AND SHALL VEST NO RIGHT IN ANY PARTY. TENANT OR ANYONE CLAIMING UNDER OR THROUGH TENANT SHALL HAVE THE RIGHTS TO THE PREMISES AS SET FORTH HEREIN AND THIS LEASE BECOMES EFFECTIVE AS A LEASE ONLY UPON EXECUTION AND ACKNOWLEDGEMENT THEREOF BY LANDLORD AND TENANT, REGARDLESS OF ANY WRITTEN OR VERBAL REPRESENTATION OF ANY AGENT, MANAGER OR EMPLOYEE OF LANDLORD TO THE CONTRARY. Revision Date: 10/85 TABLE OF CONTENTS Section Page 1. Incorporation of Basic Data 1 2. Premises 2 3. Term 2 3A. Option to Extend 3 4. Security Deposit 3 5. Annual Rent 3 6. Additional Rent (a) Taxes 4 (b) Tax Payments 4 (c) Common Areas 5 (d) Charges for Common Areas 5 7. Utilities 6 8. Tenant's Use of Premises and Miscellaneous Covenants. . . 6 9. Repairs to and Maintenance of Premises by Tenant 8 10. Subletting and Assignment 9 11. Alterations 11 12. Trash Removal 11 13. Mechanic's Liens 11 14. Access to Premises 12 15. Removal of Improvements 12 16. Tenant's Insurance Obligations 12 17. Repairs by Landlord 13 18. Damage or Destruction by Eminent Domain, Fire or Casualty 13 19. Tenant's Default (a) Events of Default 14 (b) Landlord's Remedies 15 (i) Termination of Lease 15 (ii) Suit for Possession 15 (iii)Reletting of Premises 16 (iv) Acceleration of Payment 16 (v) Monetary Damages 16 (vi) Anticipatory Breach; Cumulative Remedies 17 (c) Waiver 17 (d) Right of Landlord to Cure Tenant's Default 17 (e) Late Payment 18 (f) Lien on Personal Property 18 20. Liability of Landlord; Indemnification 19 21. Lease Not to be Recorded 20 22. Severability 20 23. Delays 20 24. Estoppel Certificates 21 25. Waiver of Subrogation 21 26. Waiver 21 27. Surrender and Holding Over 21 28. Lease Inures to Benefit of Successors and Assigns 22 29. Quiet Enjoyment 22 30. No Partnership 22 31. Notices 22 32. Interpretation 23 33. Paragraph Headings 23 34. Broker's Commissions 23 35. Interruption of Services 23 36. Subordination 23 37. Modification 23 38. Multiple Parties 24 39. Submission Not an Option 24 40. Financial Information 24 41. Signage 24 42. Entire Agreement 24 Exhibit "A" 27 Exhibit "B" 28 LEASE AGREEMENT (Standard Industrial Form) This Lease is made as of this 8th day of August, 1996, by and between the party named as landlord in the "Basic Data" set forth below (hereinafter "Landlord") and the party named as tenant in the "Basic Data" set forth below (hereinafter "Tenant"). In consideration of the mutual covenants herein set forth, the parties agree as follows: 1. Incorporation of Basic Data. All capitalized terms in this Lease shall have the meanings as described to them in the Basic Data set forth below unless otherwise defined herein. BASIC DATA Landlord: shall mean Thomas J. Flatley d/b/a The Flatley Company, having a principal place of business and current mailing address at 50 Braintree Hill Office Park, Braintree, MA 02184. Tenant: shall mean Abiomed, Inc., having a principal place of business and current mailing address at 33 Cherry Hill Park, Danvers, MA 01923. Premises: shall mean 18,203 square feet, being the approximate size of the Premises and the basis on which Annual Rent and Additional Rent shall be paid by Tenant to Landlord, in the building located at Cherry Hill Park, 33 Cherry Hill Drive, Danvers, MA 01923 (the "Building"), which Building is located on a lot (the "Lot"), all as such Premises, Building and Lot are described and/or outlined in Exhibit A. Term: shall mean the period of five (5) years commencing upon the Commencement Date. Adjustment of Term: If the Commencement Date is other than the first day of a calendar month, this Lease shall continue in full force and effect for a period of five (5) years from the first day of the calendar month next succeeding the Commencement Date. Security Deposit: INTENTIONALLY OMITTED. Annual Rent: shall mean the annual sum of ONE HUNDRED THOUSAND ONE HUNDRED SIXTEEN AND 50/100 Dollars ($100,116.50), payable in equal monthly installments of EIGHT THOUSAND THREE HUNDRED FORTY-THREE AND 04/100 Dollars ($8,343.04), for the first (1st) through and including the fifth (5th) full year of the Lease Term, all payable in accordance with Paragraph 5 of this Lease plus all other charges, amounts, reimbursements or other sums (collectively "Additional Rent") to be paid by Tenant to Landlord in accordance with Paragraph 6 and any other terms of this Lease calling for the payment of money by Tenant to Landlord. Use: shall mean manufacturing, research and development, sales and/or office use and animal research and medical use, not involving the emission of objectionable odors, fumes, noise or vibration that do not meet OSHA guidelines and for no other use, and from time to time to procure all licenses and permits necessary therefor. Commence- ment Date: shall mean July 1, 1996. Landlord and Tenant agree to execute a Supplemental Agreement setting forth the actual Occupancy and Term Dates, once the same have been established. Tenant's Pro Rata Share: shall be based on the fraction: Square Footage of TENANT's Premises = 18,203 Aggregate of All the Rentable Square Footage 60,600 (whether or not rented or improved within the entire Building) Tenant's Insurance Require- ments: Public Liability: ONE MILLION AND 00/100 ($1,000,000.00) Dollars for injury to one person, ONE MILLION AND 00/100 ($1,000,000.00) Dollars for injury to more than one person, per incident. Property Damage: ONE MILLION AND 00/100 ($1,000,000.00) Dollars per incident. 2. Premises. Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord, subject to and with the benefit of the terms, covenants, conditions and provisions of this Lease, the Premises, but reserving and excepting to Landlord the use of the exterior walls, the roof and the right to install, maintain, use, repair and replace pipes, ducts, conduits, wires and appurtenant fixtures leading through the Premises and serving other parts of the Building or Lot in locations which will not materially interfere with Tenant's use thereof. Exhibit A is intended only to show the location of the Premises in relation to the Building and/or Lot and the initial size of such Building and Lot, and other data thereon is to be disregarded and in no event deemed or construed to be a representation that the Building or buildings, parking areas or other improvements shown thereon will be constructed and/or maintained as indicated thereon, or that additions to, or reductions from, the Building or Lot may not be made by the Landlord during the Term of this Lease, but rather the Landlord shall have the right to do so and any such addition or reduction shall take effect upon Landlord's giving notice to Tenant to that effect. Landlord reserves the right to construct or sell any free-standing buildings on any portion of the Lot. 3. Term. The Term of this Lease shall commence upon the Commencement Date, which shall be the date set forth in the Basic Data, subject to Paragraph 23 concerning unavoidable delays. The Premises shall be deemed ready for occupancy under the terms of this Lease and Landlord's obligation to deliver the Premises to Tenant as of the Commencement Date shall be deemed fulfilled if Landlord's construction within the Premises as required herein is substantially completed with the exception of minor items which can be fully completed within thirty (30) days without material interference with Tenant's occupancy of the Premises. The use by Tenant of the Premises for business shall be deemed conclusive that the Premises were substantially completed and that Tenant accepted delivery of the Premises as substantially completed. Landlord's construction and other work shall be as set forth in Exhibit B hereto. 3A. In the event Tenant has not been in default of any of the terms, conditions and covenants of this Lease Agreement and any Amendments made hereto during the Term hereof, Landlord shall grant to Tenant an option to extend the Term of this Lease for an additional period of Five (5) years, subject to the following terms and conditions: 1. The Premises shall be offered to Tenant at the then current market rent rate and terms. 2. Tenant must exercise this option no earlier than nine (9) calendar months but no later than six (6) calendar months prior to the termination date of this Lease by sending written notice to Landlord by registered or certified mail. Thereupon, this Lease shall be deemed extended for an additional period of Five (5) years, upon all of the same terms and conditions of this Lease and any Amendments made hereto with the exception of the annual rent stipulated hereinabove. Tenant's exercise of this renewal option shall be null and void unless Landlord receives (i) simultaneously with the notice of exercise and (ii) thirty (30) days before the commencement of the Renewal Term, Tenant's certified financial statements for the immediately preceding three (3) year period. In the event the credit worthiness of Tenant is not sufficient in Landlord's sole discretion to assure the future performance of Tenant's obligations under the Lease during the Renewal Term, Landlord may nullify Tenant's exercise of this renewal option. 4. Security Deposit. INTENTIONALLY OMITTED. 5. Annual Rent. Tenant hereby covenants and agrees to pay to Landlord, at the place to which notices to Landlord are required to be sent or such other person or place as Landlord may from time to time designate, as Annual Rent for the Premises in lawful money of the United States, without demand, setoff or deduction, during the Term of this Lease, the sum set forth in Basic Data, payable in equal monthly installments as set forth there, in advance on the first day of each and every calendar month during said Term. Annual Rent for any fraction of a month at the commencement or expiration of said Term shall be prorated on a per diem basis. 6. Additional Rent. (a) Taxes. Tenant covenants and agrees to pay, as Additional Rent, with respect to each calendar or other tax year beginning or ending during the Term hereof, an amount equal to Tenant's Pro Rata Share, as set forth in the Basic Data, of the real estate taxes (including betterments and other special assessments) allocated to the Building and Lot for such tax year. If there shall be more than one taxing authority, the real estate taxes for any period shall be the sum of the real estate taxes for said period attributable to each taxing authority. Tenant's Pro Rata Share of the real estate taxes shall be adjusted for and with respect to any partial tax years on a per diem basis. The expression "real estate taxes" shall include all general and special assessments, so-called, rent taxes and other governmental charges which may be charged, assessed or imposed upon the Building and Lot or Landlord. If at any time during the term hereof the present system of ad valorem taxation of real property shall be changed so that in lieu of the ad valorem tax on real property in whole or in part, or in addition thereto, there shall be assessed on Landlord a capital levy or other tax on, but not limited to, the Annual Rent and/or any Additional Rent ("Gross Rents") received with respect to the Building and Lot, or a federal, state, county, municipal or other local income, franchise, excise or similar tax, assessment, levy or charge (distinct from any method of taxation prevailing at the commencement of the Term hereof) measured by or based, in whole or in part, upon any such Gross Rents, then any and all of such taxes, assessments, levies or charges, to the extent that the same would be payable if the Building and Lot were the only property of Landlord subject to them, and if the income from the Building and Lot were the only taxable income of Landlord during the year in question, shall be deemed to be included within the term "real estate taxes". Notwithstanding anything to the contrary contained herein, "real estate taxes" shall not include Landlord's Federal or State income taxes as presently imposed. (b) Tax Payments. Payment of Tenant's Pro Rata Share of the real estate taxes allocated to the Building and Lot shall be paid, as Additional Rent, monthly, and at the times and in the fashion herein provided for the payment of Annual Rent. For an initial period from the Commencement Date until the end of the first full tax year in which the Building and/or Lot containing the Premises shall be assessed as a completed improvement, as distinguished from inprocess construction ("the full assessment year"), the amount so to be paid shall be the initial monthly payment reasonably fixed by Landlord on or about the Commencement Date. Promptly after the determination by any taxing authority of real estate taxes upon the Building and Lot for each tax year, Landlord shall make a determination of the Tenant's Pro Rata Share of the real estate taxes and if the aforesaid payments theretofore made for such tax year by Tenant exceed Tenant's Pro Rata Share of the real estate taxes such overpayment shall be credited against the payments thereafter to be made by Tenant pursuant to this paragraph; and if the real estate taxes for such tax year are greater than such payments theretofore made on account for such tax year, Tenant shall pay such deficiency to Landlord within ten (10) days of demand therefor. Copies of tax bills submitted by Landlord with any such statement shall be conclusive evidence of the amount of real estate taxes charged, assessed or imposed. After the full assessment year, the initial monthly payment on account of the Tenant's Pro Rata Share of the real estate taxes shall be replaced each year by a payment which is one-twelfth (1-12th) of the Tenant's Pro Rata Share of the real estate taxes for the immediately preceding tax year. An equitable adjustment shall be made in the event of any change in the method or system of taxation from that which is now applicable, including without limitation any change in the dates and periods for which such taxes were levied. Tenant shall pay all taxes upon its signs and other property in or upon the Premises and Tenant covenants and agrees to pay promptly when due all municipal, county, state and federal taxes assessed against Tenant's leasehold interest and Tenant's fixtures, furnishing, equipment, stock-in-trade, and other personal property of any kind owned, installed or existing in the Premises. For the purpose of this paragraph such taxes shall not be included within real estate taxes upon the Building and Lot. (c) Common Areas. Tenant and its officers, employees, agents, customers and invitees shall have the right, in common with Landlord and all others to whom Landlord may from time to time grant rights, to use the common areas of the Building and Lot for their intended purposes subject to such reasonable rules and regulations as Landlord may from time to time impose, including the designation of specific areas in which cars owned or operated by Tenant, its officers, employees and agents must be parked. Tenant agrees after notice thereof to abide by such rules and regulations and to cause its officers, employees, agents, customers and invitees to conform thereto. Landlord shall at all times have full control, management and direction of the common areas and the right to put the common areas to such use as the Landlord may determine in its sole discretion. Landlord shall have the right at any time and from time to time to change the layout of the common areas including, but without limitation, the right to add to or subtract from their shape and size and to alter their location; provided, however, Landlord shall always maintain such amount of parking in the common areas as may be required by local zoning law or ordinance at the time of such parking area's original construction. (d) Charges for Common Areas. Tenant shall pay its Pro Rata Share of the Common Areas Maintenance Costs during the Term of this Lease as Additional Rent and in the manner hereafter provided. "Common Areas Maintenance Costs" as used herein shall mean the total cost and expenses incurred by Landlord, its agents, contractors and/or designees for operating, maintaining, insuring (or, if Landlord elects to self insure, an amount equal to the cost of insurance if it were to be provided by a third party of Landlord's choosing), managing, repairing and/or replacing all or any part of the common areas and any installations therein, thereon, thereunder or thereover. Payment on account of Tenant's Pro Rata Share of the Common Areas Maintenance Costs shall be paid as Additional Rent, monthly, and at the times and in the fashion herein provided for the payment of Annual Rent based initially on Landlord's reasonable estimate. Promptly after the end of the partial calendar year during which the Term begins and promptly after the end of each year thereafter, Landlord shall make a determination of Tenant's Pro Rata Share of the Common Areas Maintenance Costs. If the aforesaid payments theretofore made for such period by Tenant exceed Tenant's Pro Rata Share, such overpayment shall be credited against the payments thereafter to be made by Tenant pursuant to this paragraph; and if Tenant's Pro Rata Share is greater than such payments theretofore made on account for such period, Tenant shall pay such deficiency to Landlord within ten (10) days of demand therefore. The initial monthly payment on account of the Common Areas Maintenance Costs shall be replaced after Landlord's determination of Tenant's Pro Rata Share thereof for the preceding accounting period by a payment which is one-twelfth (1/12th) of Tenant's actual Pro Rata Share thereof for the immediately preceding accounting period, with adjustments as appropriate where such preceding period is less than a full twelve-month period. Appropriate adjustments shall be made for any partial month at the commencement of the Term and for any partial month or year at the end of the Term. 7. Utilities. Tenant agrees to pay or cause to be paid, as Additional Rent, directly to the authority or party charged with the collection thereof, all charges for gas, electricity, light, heat, power, water, sewerage, telephone or other service used, rendered or supplied to or for the Tenant upon or in connection with the Premises throughout the Term of this Lease, and to indemnify Landlord and save it harmless against any liability or damages on such account. Tenant shall also at its sole cost and expense procure any and all necessary permits, licenses or other authorizations required for the lawful and proper maintenance and use upon the Premises of wires, pipes, conduits, tubes and other equipment and appliances for use in supplying any such services to and upon the Premises except such permits, licenses and authorizations which shall be required in connection with original construction of the Premises, which shall be obtained by Landlord. It is understood and agreed that Landlord shall be under no obligation to furnish any utilities to the Premises and shall not be liable for any interruption or failure in the supply of any such utilities to the Premises. If a charge shall be made from time to time by the public authority having jurisdiction of the Premises for the use of the sanitary sewer system, Tenant shall pay the share thereof equitably apportionable to the Premises. Tenant shall also pay for any sprinkler standby service charge equitably apportionable to the Premises. If the Premises are not separately metered, Tenant shall pay to Landlord, as billed and as additional Rent, its share of water and/or sewer bills. In case any such water and sewer charges are not paid by Tenant at the time when the same are payable, if to municipal officials, Landlord may nevertheless pay the same to such officials and charge Tenant the cost thereof, which charge shall become payable on the first day of the following month as Additional Rent. 8. Tenant's Use of Premises and Miscellaneous Covenants. During the Term of this Lease Tenant shall use the Premises solely for the purposes listed in the Basic Data. Tenant agrees that it will not use, or permit or suffer the use of, the Premises or any part thereof for any other business or purpose. Tenant shall use and occupy the Premises in a careful, safe and proper manner and shall keep the Premises in a clean and safe condition in accordance with all applicable laws, ordinances and government regulations. Tenant agrees that it will not do or suffer to be done, or keep or suffer to be kept, anything in, upon or about the Premises which will contravene Landlord's policies insuring against loss or damage by fire or other hazards, or which will prevent Landlord from procuring such policies from companies acceptable to Landlord. During the Term of this Lease, Tenant further covenants and agrees as follows: (a) Not to use the Premises for any use involving the emission of objectionable odors, fumes, noise or vibration. Tenant covenants and agrees that it shall advise Landlord in writing of any materials or substances it deals with in any way on the Premises that may be deemed to be hazardous or toxic prior to such substances or materials being brought upon the Premises or Lot. In any event, Tenant shall strictly comply with all state, federal and municipal laws, regulations, guidelines and ordinances concerning the use, storage, handling and disposition of any substance or material that is or may be deemed to be toxic or hazardous and Tenant agrees to indemnify Landlord against any liability, including attorneys fees and costs, in connection therewith. At Landlord's request, Tenant shall provide Landlord with reasonable assurances that Tenant can and will comply with the foregoing and, if Landlord so requests, Tenant shall obtain insurance of such type and in such amount as Landlord may reasonably specify, such policy to name Landlord as an insured party and be obtained at Tenant's sole cost prior to such substances or materials being brought upon the Premises or Lot. Any such policy shall provide that it may not be cancelled or amended without thirty (30) days prior notice to Landlord, and shall be issued by a company or companies reasonably satisfactory to Landlord. Failure of Tenant to provide Landlord with such reasonable assurances or evidence of any reasonably requested insurance in connection with the bringing of such materials or substances upon the Premises or Lot shall be reasonable cause for Landlord to prohibit such substances or materials from being brought upon the Premises or Lot or, at Landlord's election, a default under this Lease. Notwithstanding anything contained herein to the contrary, LESSEE shall strictly comply with all state, federal and municipal laws, regulations, guidelines and ordinances concerning the use, storage, handling and disposition of any substance or material that is or may be deemed to be toxic or hazardous and Tenant agrees to indemnify and hold Landlord harmless against any liability, including attorneys fees and costs, in connection therewith. (b) Not to permit the use of the Premises for trucking of a character or volume greater than that customarily employed by other occupants of the Building or Lot or any use permitted under this Lease for which trucking of such character and volume is customary. (c) Not to place on the Premises or Building any placard or sign of advertising that the Premises or any part thereof may be sublet, nor to place any other sign or placard on the Premises or Building which is visible from the exterior of the Premises or Building without the written consent of Landlord, except as delineated in Section 41 of this Lease, namely signage. (d) Not to injure, overload, deface or permit to be injured, overloaded, or defaced, the Premises or Building, and not to permit any holes to be made in the exterior of the building; and not to make, allow or suffer any waste or any unlawful, improper or offensive use of the Premises that shall be injurious to any person or property or invalidate any insurance on the Premises, Building or Lot or increase the premium thereof. Notwithstanding anything contained herein to the contrary, it is hereby understood and agreed that any/all roof penetration to the Premises and/or Building shall be performed only by an authorized Carlisle contractor approved by Landlord. (e) To conform to and comply with all state and municipal laws and with all requirements of any public body or officers having jurisdiction of the Premises and with the requirements or regulations of any Board of Fire Underwriters or insurance company insuring the Premises at the time with respect to the care, maintenance, use and nonstructural alteration of the Premises, all at Tenant's sole expense. 9. Repairs to and Maintenance of Premises by Tenant. Tenant shall keep the Premises, including without limitation, both the inside and outside of all doors and windows therein, in the same order and repair as they are in on the Commencement Date, reasonable wear and tear and damage by fire or other casualty normally insured under a so-called "extended coverage endorsement" only excepted; and to keep all fixtures and equipment on the Premises including, without limitation, all heating, plumbing, electrical, air-conditioning, ventilation and mechanical fixtures and equipment serving only the Premises in the same order and repair as they are in on the Commencement Date, damage by fire or other casualty normally insured under an "extended coverage endorsement" only excepted. Tenant shall, at it sole cost and expense, during the entire Term of this Lease, maintain in force a service contract providing for the repair and annual service and maintenance of all heating, ventilating and air conditioning equipment serving the Premises, such contract to be with a party reasonably acceptable to Landlord or, if Landlord should so elect, with a party designated by Landlord. Tenant shall make all repairs and replacements and do all other work necessary for the foregoing purposes. Landlord represents that as of the Commencement Date of this Lease, the heating, plumbing, electrical, air-conditioning, ventilation and mechanical fixtures and equipment serving the Premises shall be in good working order and of sufficient capacity for Tenant's Use as set forth herein. In addition, if any repairs or maintenance are required to the machinery and components of the HVAC system located in the Premises during the twelve month period commencing with the Commencement Date of this Lease, and Tenant so notifies Landlord in writing thereof within said twelve month period, then, notwithstanding anything contained herein to the contrary, Landlord shall, at its sole cost and expense, make such repairs and maintenance. Following the aforementioned twelve month period, Landlord shall have no liability or responsibility with respect to the repair, maintenance or operation of the HVAC system within the Premises. It is further agreed that the exception of reasonable wear and tear shall not apply so as to permit Tenant to keep the Premises in anything less than suitable, tenantlike, efficient and usable condition considering the nature of the Premises and the use reasonably made thereof, or in less than good and tenantlike repair, and that except in case of fire or other casualty normally insured under an "extended coverage endorsement" there is no exception to the rule that all glass must be kept good and whole by Tenant. Tenant shall also be responsible for the cost of all repairs to the Building (including, without limitation, the structure and roof thereon and common areas therein) and the Lot if the same are occasioned by Tenant's or its employees', agents' or invitees' improper or negligent use thereof. Notwithstanding the foregoing, in the event a major repair (for the purpose of this paragraph, "major repair" shall mean a repair which costs in excess of $10,000.00 Dollars) occurs during the last year of the term hereof and provided the same is not caused by the Tenant's negligence, Landlord shall perform the work and bill Tenant its pro rata based on the remaining balance of the Lease. 10. Subletting and Assignment. (a) Tenant covenants and agrees not to assign, sell, mortgage, pledge or in any manner transfer this Lease or any interest therein or sublet the Premises or any part thereof, or grant any concession or license or otherwise permit occupancy of all or any part thereof by another person or entity without the prior written consent of Landlord, which consent shall not be unreasonably withheld provided all the provisions of this Paragraph 10 are complied with and subject to Landlord's right to terminate this Lease as set forth in this Paragraph 10. Any such consent by Landlord shall be held to apply only to the specific transaction thereby authorized. Such consent shall not be construed as a waiver of the obligation of Tenant to obtain from Landlord consent to any other or subsequent assignment or subletting period. The collection of rent by Landlord from any assignee, subtenant or other occupant shall not be deemed an acceptance of the assignee, subtenant or occupant as tenant or release of Tenant from its obligation under this Lease. (b) Notwithstanding the provisions of Paragraph 10(a), above, any proposed assignee or sublessee submitted to the Landlord for approval must have the same or greater financial strength as Tenant and if such is not the case, Landlord's withholding of consent shall be reasonable. If Tenant shall request permission to assign this Lease or sublet the Premises or any part thereof Tenant shall, together with such request for consent thereto, inform Landlord of the rental and any other amounts to be paid by such assignee or subtenant in connection with such subletting or assignment regardless of the nomenclature such payment may take, the term of any subletting, and any financial information required or requested by Landlord to make the determination required by the first sentence of this Paragraph 10(b). Landlord shall have the right to terminate this Lease in lieu of consenting or reasonably withholding its consent to the proposed subletting or assignment, provided that Landlord shall exercise such right within forty-five (45) days of its receipt of Tenant's request for such consent and provided, further, that Tenant shall have the right to withdraw its request for such consent within fifteen (15) days after its receipt of such notice from Landlord, in which event such notice of termination shall become null and void. If this Lease shall be terminated pursuant to the provisions of the immediately preceding sentence, such termination shall become effective upon the last day of the calendar month next following Landlord's giving said notice of termination. (c) If Landlord consents in writing to an assignment or subletting, such consent shall be deemed conditioned upon Tenant's compliance with the following provisions and the failure to so comply shall be deemed to give Landlord reasonable cause for withholding or withdrawing its consent: (1) The assignment or subletting must be, respectively, of all Tenant's leasehold interest or of the entire Premises and, in the case of an assignment, shall also transfer to the assignee all of Tenant's rights in and interests under this Lease, including but without limitation, the Security Deposit hereunder. (2) At the time of such assignment or subletting, this Lease must be in full force and effect without any breach or default hereunder on the part of Tenant. (3) The assignee or sublessee shall assume, by written recordable instrument, in form and content satisfactory to Landlord, the due performance of all Tenant's obligations under this Lease, including any accrued obligations at the time of the assignment or subletting. (4) A copy of the assignment or sublease and the original assumption agreement (both in form and content satisfactory to Landlord) fully executed and acknowledged by the assignee or sublessee, together with a certified copy of a properly executed corporate resolution authorizing such assumption agreement, shall be received by Landlord within ten (10) days from the effective date of such assignment or subletting. (5) Such assignment or subletting shall be upon and subject to all the provisions, terms, covenants and conditions of this Lease including but without limitation the use permitted hereby and Tenant (and any assignee(s), subtenant(s) and guarantor(s) of this Lease) shall continue to be and remain primarily and unconditionally liable hereunder. (6) Tenant shall reimburse Landlord for Landlord's attorneys' fees for examination of and/or preparation of any documents in connection with such assignment or subletting. (7) Any rent, sum or other consideration to be paid or given in connection with such sublease or assignment, either initially or over time, in excess of the Annual Rent and/or Additional Rent and/or other charges to be paid under this Lease shall be paid directly to Landlord as if such amount were originally called for by the terms of this Lease as Additional Rent and Tenant shall be liable to Landlord for all such amounts. (d) Subject to the enumerated conditions of the preceding Paragraph 10(c), Landlord hereby consents to the assignment or subletting of the entire Premises to a corporation which is a wholly owned subsidiary of Tenant, to its parent, affiliate, or controlling corporation or corporations, or to any successor by consolidation, merger or sale of all or substantially all of its assets. For the purposes hereof, an "affiliate" shall be an entity (i) at least fifty percent (50%) of which is owned directly by Tenant or the entity owning or controlling Tenant or (ii) Tenant or such other entity owning or controlling Tenant having sufficient direct voting ownership to effectively control the management thereof. Notwithstanding any such assignment or subletting as provided in this Paragraph 10(d), such assignment or subletting shall be upon and subject to all the provisions, terms, covenants and conditions of this Lease and Tenant (and any assignee(s), subtenant(s) and guarantor(s) of this Lease) shall continue to be and remain liable hereunder. (e) In the event that Tenant hereunder is a corporation (other than one whose shares are regularly and publicly traded on a recognized stock exchange in the United States), Tenant represents that the ownership and power to vote its entire outstanding capital stock belongs to and is vested in the officer or officers executing this Lease or members of his or their immediate family. If there shall occur any change in the ownership of and/or power to vote the majority of the outstanding capital stock of Tenant, whether such change of ownership is by sale, assignment, bequest, inheritance, operation of law or otherwise, without the prior written consent of Landlord, which consent shall not be unreasonably withheld, then Landlord shall have the option to terminate this lease upon thirty (30) days notice to Tenant. 11. Alterations. Tenant shall not modify the leasehold improvements or make any alterations to the Premises without first obtaining Landlord's prior written approval of such modifications and alterations; provided, however, Landlord shall not unreasonably withhold its consent to nonstructural alterations of the Premises; provided further that Landlord's consent shall not be required for non- structural alterations costing less than FIVE THOUSAND AND 00/100 ($5,000.00) Dollars each. 12. Trash Removal. Tenant shall be responsible for the removal of its own trash, rubbish, garbage and refuse removal, at its sole cost and expense. Tenant shall not permit the accumulation of rubbish, trash, garbage and other refuse in and around the Premises. No rubbish, trash, garbage or other refuse shall be burned by Tenant in the Premises or elsewhere in the Building or Lot and all of the same shall be kept in suitable containers in the interior of the Premises (or in locations outside the Premises as Landlord may permit by notice in writing) until the same is picked up from the Premises and the Building and/or Lot. The removal agency selected by Tenant shall be subject to Landlord's reasonable approval. In the event Tenant fails to remove any accumulation of rubbish within twenty-four (24) hours after notice from Landlord to remove the same, Landlord shall have the right (but not the obligation) to remove the same, in which event the cost thereof shall be paid by Tenant as Additional Rent immediately upon demand. 13. Mechanic's Liens. Tenant will not permit to be created or to remain undischarged any lien, encumbrance or charge arising out of any work of any contractor, mechanic, laborer or materialman or any mortgage, conditional sale, security agreement or chattel mortgage, or otherwise which might be or become a lien or encumbrance or charge upon the Premises or any part thereof or the income therefrom, and Tenant will not suffer any other matter or thing whereby the estate, rights and interest of Landlord in the Premises or any part thereof might be impaired. If any lien on account of an alleged debt of Tenant or any notice of contract by a party engaged by Tenant or Tenant's contractor to work on the Premises shall be filed against the Premises, Building or Lot, or any part thereof, within ten (10) days after notice of the filing thereof Tenant shall cause the same to be discharged of record by payment or bond. If Tenant shall fail to cause such lien to be discharged within the period aforesaid then, in addition to any other right or remedy, Landlord may, but shall not be obligated to, discharge the same either by paying the amounts claimed to be due or by procuring the discharge of such lien by deposit or by bonding proceedings, and in any such event Landlord shall be entitled to compel the prosecution of an action for the foreclosure of such lien by the lienor or to pay the amount of the judgment in favor of the lienor with interest, costs and allowances. Any amount so paid by Landlord and all costs and expenses, including without limitation reasonable attorneys fees, incurred by Landlord in connection therewith, together with interest thereon at the rate specified in Paragraph 19(d) from the respective dates of Landlord's making of the payment or incurring of the cost and expense, shall constitute Additional Rent payable by Tenant under this Lease and shall be paid by Tenant to Landlord immediately upon demand. 14. Access to Premises. Landlord shall have access to the Premises at all reasonable time, with reasonable notice to allow for an escort by Abiomed personel and minimal business distruption, except in cases of emergency at any time, for the purpose of examining the same or making such repairs, alterations, additions or improvements to the Premises, or the Building of which the Premises are a part, that Landlord may deem necessary or which Tenant has failed to do (but nothing in this Paragraph shall obligate Landlord to make any such repairs, alterations, additions or improvements) and also for the purpose of exhibiting the Premises and putting up notices "To Rent," or "For Sale", provided Tenant does not exercise its option to renew as defined in Paragraph 3A herein, which notices shall not be removed, obliterated or hidden by Tenant. No forcible entry shall be made by Landlord unless such entry shall be reasonably necessary to prevent injury, loss or damage to persons or property, and Landlord shall repair any damage to property occasioned thereby. Landlord shall repair any damage to property of Tenant or anyone claiming under Tenant caused by or resulting from Landlord's making any such repairs, alterations, additions or improvements except only such damage as shall result from the entry to the Premises and/or the making of such repairs, alterations, additions or improvements which Landlord shall make as a result of an emergency or the default, negligence, fault or willful misconduct of Tenant or anyone claiming under or through Tenant. No action of Landlord pursuant to this Paragraph shall be deemed an eviction or disturbance of Tenant nor shall Tenant be allowed any abatement of rent or damages for any injury or inconvenience occasioned thereby. 15. Removal of Improvements. Except as otherwise hereinafter provided, all trade fixtures, furniture, furnishings and signs installed in the Premises by Tenant and paid for by it shall remain the property of Tenant and shall be removed by Tenant upon the expiration of the Term of this Lease or its earlier termination, provided (a) that any of such items as are affixed to the Premises and require severance may be removed only if Tenant shall repair any damage caused by such removal, (b) that Tenant shall have fully performed all of the covenants and agreements to be performed by it under the provisions of this Lease, and (c) that Tenant shall comply with the last sentence of this Paragraph. If the Tenant fails to remove such items from the Premises prior to the expiration of this Lease or earlier termination hereof, all such trade fixtures, furniture, furnishings and signs shall become the property of the Landlord. All lighting fixtures, heating and cooling equipment and all other installations, alterations, additions and improvements to the Premises other than specialty HVAC lighting and other fixtures comprising the clean rooms, shall be and remain the property of Landlord on the ending of the Term hereof or any earlier termination of this Lease and shall not be removed from the Premises. 16. Tenant's Insurance Obligation. Tenant shall carry public liability insurance in a company or companies licensed to do business in the state in which the Premises are located and reasonably approved by Landlord. Said insurance shall be in minimum amounts reasonably required by Landlord from time to time by notice to Tenant and shall name Landlord as an additional insured, as its interests may appear, and Tenant shall provide Landlord with evidence, when requested, that such insurance is in full force and effect. Tenant shall carry property damage insurance for all of its equipment and for all leasehold improvements above the building standard which are made by Landlord or Tenant in and to the Premises, which policies shall name Landlord as an additional insured. If required by Landlord, receipts evidencing payment for said insurance shall be delivered to Landlord at least annually by Tenant and each policy shall contain an endorsement that will prohibit its cancellation or amendment prior to the expiration of thirty (30) days after notice of such proposed cancellation or amendment to Landlord. Tenant shall carry insurance in the initial amounts listed in the Basic Data and shall provide Landlord with certificates of such Tenant Insurance Requirements on or prior to the Commencement Date. 17. Repairs by Landlord. Landlord agrees to make all necessary repairs or alterations to the foundation, roof and structural parts of the exterior walls of the Premises. Notwithstanding the foregoing, if any of said repairs or alterations shall be made necessary by reason of repairs, installations, alterations, additions or improvements made by Tenant or anyone claiming under or through Tenant, by reason of the default, negligence, fault, or willful misconduct of such party, or by reason of a default in the performance or observance of any agreements, conditions or other provisions on the part of Tenant to be performed or observed, or by reason of any special use to which the Premises may be put, Tenant shall be liable for the cost of all such repairs or alterations as may be necessary. Landlord shall not be deemed to have committed a breach of any obligation to make repairs or alterations or perform any other act unless (a) it shall have made such repairs or alterations or performed such other act negligently, or (b) it shall have received notice from Tenant designating the particular repairs or alterations needed or the other act of which there has been failure of performance and Landlord shall have failed to make such repairs or alterations or performed such other act within a reasonable time after the receipt of such notice; and in the latter event Landlord's liability shall be limited to the cost of making such repairs or alterations or performing such other act. As used in this Lease, the expression "exterior walls of the Premises" does not include glass, windows, doors or door frames, or window sashes or frames. Landlord shall make all necessary repairs to the common areas and shall maintain such common areas (except sidewalks abutting the Premises) reasonably clear of litter and shall perform snow handling to the extent required for business operations of the Building. The provisions of this Paragraph shall not apply in the case of damage or destruction by fire or other casualty or by eminent domain, in which events the obligations of Landlord shall be controlled by Paragraph 18 hereof. In the event the foregoing repairs or alterations cannot reasonably be completed within a thirty (30) day period, then Landlord shall have such additional time as is reasonably necessary to complete the same, provided Landlord has commenced the making of such repairs or alterations within said thirty (30) days and thereafter pursued the completion thereof with due diligence. In the event Landlord fails or neglects to make the repairs to the Premises which Landlord is required to make in accordance with the terms of this Lease within thirty (30) days after receipt of written notice from Tenant of the necessity thereof, or within twenty-four (24) hours in the event of an emergency, then Tenant may, but shall not be obligated to, make such repairs and Landlord shall reimburse Tenant for the actual cost thereof within thirty (30) days after receipt of a bill thereof and copies of applicable invoices. In the event Landlord fails to reimburse Tenant as aforesaid, Tenant may, at Tenant's option, deduct said cost from the rent payments next due to Landlord. In the event such repairs cannot reasonably be completed within thirty (30) days after receipt of written notice from Tenant of the necessity therefor, and Landlord commences the making of such repairs within said thirty (30) day period and thereafter pursues the completion thereof with reasonable diligence, Landlord shall have such additional time as is reasonably necessary to complete the same before Tenant has the right to exercise any remedies set forth in this Lease. 18. Damage or Destruction by Eminent Domain, Fire or Casualty. (a) In the event that the Premises and/or Building and/or Lot, or any material part thereof, shall be taken by any public authority or for any public use, or shall be destroyed or damaged by fire or casualty, or by the action of any public authority, then this Lease may be terminated at the election of Landlord. Such election shall be made by the giving of written notice by Landlord to Tenant within thirty (30) days after the right of election accrues. If by such taking Tenant is deprived of the use of more than thirty percent (30%) of the Square Footage of the Premises, or if by such fire or other casualty more than fifty percent (50%) of the Square Footage of the Premises shall be rendered untenable, and if Landlord does not within a reasonable time after notice from Tenant commence and diligently pursue to rebuild or repair, Tenant may at its option terminate this Lease by notice in writing to Landlord within thirty (30) days after the date of such damage or destruction, or within thirty (30) days after it has received notice of such taking, as the case may be. If either Landlord or Tenant exercises such option, this Lease shall terminate on the date designated in its notice of termination, which shall be not less than fifteen (15) nor more than thirty (30) days after the date of such notice. (b) If this Lease is not terminated pursuant to the provisions of Paragraph 18(a) above, this Lease shall continue in full force and effect and a just proportion of the Annual Rent shall be suspended or abated until the Premises shall be put by Landlord in proper condition for use, which Landlord covenants to do with reasonable diligence and to the extent permitted by the net proceeds of insurance recovered or damages awarded for such destruction or taking, and subject to zoning and building laws then in existence. "Net proceeds of insurance recovered or damaged awarded" refers to the gross amount of such insurance or award less the reasonable expenses of Landlord in connection with the collection of same, including without limitations, reasonable fees and expenses for legal and appraisal services. In the case of a taking which permanently reduces the Square Footage of the Premises, the rent shall be abated for the remainder of the Term in proportion to the amount by which the Square Footage has been reduced. (c) Irrespective of the form in which recovery may be had by law, all rights to damages or compensation shall belong to Landlord in all cases, except for damages to Tenant's fixtures, property or equipment, and for damages, if any, separately awarded for relocation expenses and business interruption, provided that none of the same shall reduce the damages or compensation which Landlord would otherwise recover. Tenant hereby grants to Landlord all of Tenant's rights to such damages and awards and covenants to deliver such further assignments thereof as Landlord may from time to time request. 19. Tenant's Default. (a) Events of Default. The following shall be "Events of Default" under this Lease: (i) If Tenant shall fail to pay any monthly installment of Annual Rent or Additional Rent when due, and such default shall continue for ten (10) days after written notice from Landlord; provided that no such notice shall be required if Tenant has received a similar notice within three hundred sixty-five (365) days prior to such violation or failure; (ii) If Tenant shall fail to timely make any other payment required under this Lease and such default shall continue for ten (10) days after written notice from Landlord; provided that no such notice shall be required if Tenant has received a similar notice within three hundred sixty-five (365) days prior to such violation or failure; (iii) If Tenant shall violate or fail to perform any of the other terms, conditions, covenants or agreements herein made by Tenant, if such violation or failure continues for a period of thirty (30) days after Landlord's written notice thereof to Tenant; provided that no such notice shall be required if Tenant has received a similar notice within three hundred sixty-five (365) days prior to such violation or failure; (iv) Tenant's becoming insolvent, as that term is defined in Title 11 of the United States Code, entitled Bankruptcy, 11 U.S.C. Section 101 et. seq. (the "Bankruptcy Code"), or under the insolvency laws of any State, District, Commonwealth or Territory of the United States (the "Insolvency Laws"); (v) the appointment of a receiver or custodian for all or a substantial portion of Tenant's property or assets, or the institution of a foreclosure action upon all or a substantial portion of Tenant's real or personal property; (vi) the filing of a voluntary petition under the provisions of the Bankruptcy Code or Insolvency Laws; (vii) the filing of an involuntary petition against Tenant as the subject debtor under the Bankruptcy Code or Insolvency Laws, which is either not dismissed within forty-five (45) days of filing, or results in the issuance of an order for relief against the debtor, whichever is earlier; (viii) Tenant's making or consenting to an assignment for the benefit of creditors or a common law composition of creditors; or (ix) Tenant's interest in this Lease being taken on execution in any action against the Tenant. (b) Landlord's Remedies. Should an Event of Default occur under this Lease, Landlord may pursue any or all of the following remedies: (i) Termination of Lease. Landlord may terminate this Lease by giving written notice of such termination to Tenant, or by reentry, whereupon the mailing of such notice of termination addressed to Tenant, or in the case of reentry, upon such reentry, with or without notice or demand and with or without process of law (forcibly if necessary), this Lease shall automatically cease and terminate and Tenant shall be immediately obligated to quit the Premises. Termination by entry or notice as provided herein shall be effective and complete upon entry or the mailing of notice, respectively, and shall require no further action on the part of Landlord including, without limitation, resort to legal process under applicable law. Any other notice to quit or notice of Landlord's intention to reenter the Premises is hereby expressly waived. If Landlord elects to terminate this Lease, everything contained in this Lease on the part of Landlord to be done and performed shall cease without prejudice, subject, however, to the right of Landlord to recover from Tenant all Annual Rent and Additional Rent and any other sums accrued up to the time of termination or recovery of possession by Landlord, whichever is later. (ii) Suit for Possession. Landlord may proceed to recover possession of the Premises under and by virtue of the provisions of the laws of the state in which the Premises are located or by such other proceedings, including reentry and possession, as may be applicable. (iii) Reletting of Premises. Should this Lease be terminated before the expiration of the Term of this Lease by reason of Tenant's default as hereinabove provided, or if Tenant shall abandon or vacate the Premises before the expiration or termination of the Term of this Lease without having paid the full rental for the remainder of such Term, Landlord shall have the option, but not the obligation, to relet the Premises for such rent and upon such terms as are not unreasonable under the circumstances and, if the full Annual Rent and Additional Rent reserved under this Lease (and any of the costs, expenses or damages indicated below) shall not be realized by Landlord, Tenant shall be liable for all damages sustained by Landlord, including, without limitation, deficiency in rent, reasonable attorneys' fees, brokerage fees and expenses of placing the Premises in first-class rentable condition including without limitation any alterations and improvements. Landlord, in putting the Premises in good order or preparing the same for rerental may, at Landlord's option, make such alterations, repairs or replacements in the Premises as Landlord, in its sole judgment, considers advisable and necessary for the purpose of reletting the Premises, and the making of such alterations, repairs, or replacements shall not operate or be construed to release Tenant from liability hereunder as aforesaid. Landlord shall in no event be liable in any way whatsoever for failure to relet the Premises, or in the event that the Premises are relet, for failure to collect the rent under such reletting, and in no event shall Tenant be entitled to receive the excess, if any, of such net rent collected over the sums payable by Tenant to Landlord hereunder. (iv) Acceleration of Payment. If Tenant shall fail to pay any monthly installment of Annual Rent and/or Additional Rent pursuant to the terms of this Lease, within ten (10) days of the date when each such payment is due, for three (3) consecutive months, or three (3) times in any period of twelve (12) consecutive months, then Landlord may, by giving written notice to Tenant, exercise any of the following options: (A) declare the entire rent reserved under this Lease to be due and payable within ten (10) days of such notice; (B) declare the rent reserved under this Lease for the next six (6) months (or at Landlord's option for a lesser period) to be due and payable within ten (10) days of such notice; or (C) require an additional security deposit to be paid to Landlord within ten (10) days of such notice in an amount not to exceed six (6) months rent. Landlord may invoke any of the options provided for herein at any time during which an Event of Default remains uncured. (v) Monetary Damages. Any damage or loss of rent sustained by Landlord may be recovered by Landlord, at Landlord's option, at the time of the reletting, or in separate actions, from time to time, as said damage shall have been made more easily ascertainable by successive relettings, or at Landlord's option in a single proceeding deferred until the expiration of the Term of this Lease (in which event Tenant hereby agrees that the cause of action shall not be deemed to have accrued until the date of expiration of said Term) or in a single proceeding prior to either the time or reletting or the expiration of the Term of this Lease. In addition, should it be necessary for Landlord to employ legal counsel to enforce any of the provisions herein contained, Tenant agrees to pay all attorney's fees and court costs reasonably incurred. (vi) Anticipatory Breach; Cumulative Remedies. Nothing contained herein shall prevent the enforcement of any claim Landlord may have against Tenant for anticipatory breach of the unexpired Term of this Lease. In the event of a breach or anticipatory breach by Tenant of any of the covenants or provisions hereof,Landlord shall have the right of injunction and theright to invoke any remedy allowed at law or in equity as if reentry, summary proceedings and other remedies were not provided for herein. Mention in this Lease of any particular remedy shall not preclude Landlord from any other remedy, in law or in equity, whether or not mentioned herein. Landlord's election to pursue one or more remedies, whether as set forth herein or otherwise, shall not bar Landlord from seeking any other or additional remedies at any time and in no event shall Landlord ever be deemed to have elected one or more remedies to the exclusion of any other remedy or remedies. Any and all rights and remedies that Landlord may have under this Lease, and at law and in equity, shall be cumulative and shall not be deemed inconsistent with each other, and any two or more of all such rights and remedies may be exercised at the same time insofar as permitted by law. Tenant hereby expressly waives any and all rights of redemption granted by or under any present or future laws in the event of Tenant being evicted or dispossessed for any cause, or in the event of Landlord obtaining possession of the Premises, by reason of the violation by Tenant of any of the covenants and conditions of this Lease, or otherwise. (c) Waiver. If, under the provisions hereof, Landlord shall institute proceedings against Tenant and a compromise or settlement thereof shall be made, the same shall not constitute a waiver of any other covenant, condition or agreement herein contained, nor of any of Landlord's rights hereunder. No waiver by Landlord of any breach of any covenant, condition or agreement herein contained shall operate as a waiver of such covenant, condition, or agreement itself, or of any subsequent breach thereof. No payment by Tenant or receipt by Landlord of a lesser amount than the monthly installments of rent herein stipulated shall be deemed to be other than on account of the earliest stipulated rent, nor shall any endorsement or statement on any check or letter accompanying a check for payment of Annual Rent, Additional Rent or any other sum be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such Annual Rent, Additional Rent or any other sum or so pursue any other remedy provided in this Lease. No reentry by Landlord, and no acceptance by Landlord of keys from Tenant, shall be considered an acceptance of a surrender of the Lease or Premises. (d) Right of Landlord to Cure Tenant's Default. If Tenant defaults in the making of any payment or in the doing of any act herein required to be made or done by Tenant, then Landlord may, but shall not be required to, make such payment or do such act, and charge the amount of the expense thereof, if made or done by Landlord, with interest thereon at the rate per annum which is four percent (4%) greater than the "base lending rate" then in effect at The First National Bank of Boston, Boston, Massachusetts, or the highest rate permitted by law, whichever may be less; with it being the express intent of the parties that nothing herein contained shall be construed or implemented in such a manner as to allow Landlord to charge or receive interest in excess of the maximum legal rate then allowed by law. Such payment and interest shall constitute Additional Rent hereunder due and payable with the next monthly installment of Annual Rent; but the making of such payment or the taking of such action by Landlord shall not operate to cure such default or to stop Landlord from the pursuit of any remedy to which Landlord would otherwise be entitled. (e) Late Payment. If Tenant fails to pay any installment of Annual Rent and/or Additional Rent on or before the first (1st) day of the calendar month when such installment becomes due and payable, Tenant shall pay to Landlord a late charge of five percent (5%) of the amount of such installment, and, in addition, such unpaid installment shall bear interest at the rate per annum which is four percent (4%) greater than the "base lending rate" then in effect at The First National Bank of Boston, Boston, Massachusetts, or the highest rate permitted by law, whichever may be less; with it being the express intent of the parties that nothing herein contained shall be construed or implemented in such manner as to allow Landlord to charge or receive interest in excess of the maximum legal rate then allowed by law. Such late charge and interest shall constitute Additional Rent hereunder due and payable with the next monthly installment of Annual Rent due, or if payments have been accelerated pursuant to this Paragraph 19, due and payable immediately. (f) Lien on Personal Property. Landlord shall have a lien upon all the personal property of Tenant moved into the Premises, as and for security for the Annual Rent, Additional Rent and other obligations of Tenant herein provided. In order to perfect and enforce said lien, Landlord may, at any time after default by Tenant in the payment of Annual Rent, Additional Rent or default of other obligations to be performed or complied with by Tenant under this Lease, seize and take possession of any and all personal property belonging to Tenant that may be found in and upon the Premises. If Tenant fails to redeem the property so seized, by payment of whatever sum may be due Landlord under and by virtue of the provisions of this Lease, then and in that event, Landlord shall have the right, after twenty (20) days written notice to Tenant of its intention to do so, to sell such personal property so seized at public or private sale and upon such terms and conditions as to Landlord may appear advantageous, and after the payment of all proper charges incident to such sale, apply the proceeds thereof to the payment of any balance due to Landlord on account of Annual Rent, Additional Rent or other obligations of Tenant pursuant to this Lease. In the event there shall then remain in the hands of Landlord any balance realized from the sale of said personal property as aforesaid, the same shall be held by Landlord as additional Security Deposit. The exercise of the foregoing remedy by Landlord shall not relieve or discharge Tenant from any deficiency owed to Landlord which Landlord has the right to enforce pursuant to any other provisions of this Lease. 20. Liability of Landlord; Indemnification. (a) Landlord shall not be liable to Tenant, its employees, agents, contractors, business invitees, licensees, customers, clients, family members or guests for any damage, compensation or claim arising from (i) the necessity of repairing any portion of the Premises, Building or Lot, (ii) the interruption in the use of the Premises, (iii) accident or damage to persons or property resulting from the use or operation (by Landlord, Tenant, or any other person or persons whatsoever) of the Premises or of any elevators or heating, cooling, electrical or plumbing equipment or apparatus in the Premises or Building, (iv) the termination of this Lease by reason of the destruction of the Premises, (v) any fire, robbery, theft, mysterious disappearance and/or any other casualty, (vi) any leakage in any part or portion of the Premises or the Building, or from water, rain or snow that may leak into, or flow from, any part of the Premises or the Building, or from drains, pipes or plumbing work in the Building, or from any other cause whatsoever, or (vii) for any personal injury arising from the use, occupancy and condition of the Premises, unless such personal injury is caused by the gross negligence of Landlord, or a willful act or failure to act on the part of Landlord. Tenant shall not be entitled to any abatement or diminution of rent as a result of any of the foregoing occurrences, nor shall the same release Tenant from its obligations hereunder or constitute an eviction. Any goods, property or personal effects of Tenant, its employees, agents, contractors, business invitees, licensees, customers, clients, family members or guests, stored or placed in or about the Premises, Building or Lot shall be at their risk, and the Landlord shall not in any manner be held responsible therefor. The employees of the Landlord are prohibited from receiving any packages or other articles delivered to the Building by Tenant, and if any such employee receives any such package or articles, such employee shall be the agent of the Tenant for such purposes and not of the Landlord. Tenant acknowledges that Landlord will not carry insurance on Tenant's furniture, furnishings, fixtures, equipment and/or improvements in or to the Premises and Tenant shall have full responsibility therefor and shall bear the full risk of loss thereto. It is expressly understood and agreed that Tenant shall look to its business interruption and property damage insurance policies, and not to Landlord or its agents or employees, for reimbursement for any damages or losses incurred as a result of any of the foregoing occurrences, other than clause (a)(vii) above, and that said policies shall contain waiver of subrogation clauses. (b) If Landlord shall fail to perform any covenant, term or condition of this Lease upon Landlord's part to be performed or be guilty of negligence with regard to any party claiming by, under or through Tenant and, as a consequence of such default or negligence, Tenant shall recover a money judgment against Landlord, such judgment shall be satisfied only out of the proceeds of sale received upon execution of such judgment and levy thereof against the right, title and interest of Landlord in the Premises, Building and Lot, and neither Landlord nor any of the partners designated herein as Landlord comprising any partnership designated herein as Landlord or any trustees or beneficiaries designated herein as Landlord shall be personally liable for any judgment rendered against Landlord or any deficiency thereunder. It is agreed that in no event shall Tenant have any right to levy execution against any property of Landlord other than its interest in the Premises, Building and Lot and the rents or other income therefrom as hereinbefore expressly provided. In the event of sale or other transfer of Landlord's right, title and interest in the Premises, Building and Lot, Landlord shall be released from all liability and obligations hereunder. If all or any part of Landlord's interest in this Lease shall be held by a trust, no trustee, shareholder or beneficiary of such trust shall be personally liable for any of the covenants or agreements, expressed or implied, hereunder. IN NO EVENT SHALL LANDLORD EVER BE PERSONALLY LIABLE TO TENANT OR ANYONE CLAIMING BY, UNDER OR THROUGH TENANT FOR CONSEQUENTIAL DAMAGES, SUCH DAMAGES OR CLAIMS THEREFOR BEING HEREBY EXPRESSLY WAIVED BY TENANT. (c) Tenant hereby agrees to indemnify and hold Landlord harmless from and against any cost, damage, claim, liability or expense (including attorney's fees) incurred by or claimed against Landlord, directly or indirectly, which is occasioned by or results from any default hereunder or any willful or negligent act or omission on the part of Tenant, its agents, employees, contractors, invitees, licensees, customers, clients, family members and guests, or as a result of or in any way arising from Tenant's use and occupancy of the Premises, Building and/or Lot or in any other manner which relates to the business of Tenant. Any such cost, damage, claim, liability or expense incurred by Landlord for which Tenant is obligated to reimburse Landlord shall be deemed Additional Rent due and payable as Additional Rent upon demand by Landlord. It is expressly understood and agreed that Tenant's liability under this Lease extends to the acts and omissions of any subtenant or assignee and any agent, employee, contractor, invitee, licensee, customer, client, family member and guest of any subtenant or assignee. 21. Lease Not to be Recorded. Tenant agrees that it will not record this Lease. Both parties shall, upon the request of either, execute and deliver a notice or short form of this Lease in such form, if any, as may be permitted by applicable statute. If this Lease is terminated before the Term expires, the parties shall execute, deliver and record an instrument acknowledging such fact and the actual date of termination of this Lease, and Tenant hereby appoints Landlord its attorney-in-fact in its name and on its behalf to execute and record such instrument, such appointment being coupled with an interest and irrevocable. 22. Severability. It is agreed that if any provision of this Lease shall be determined to be void by any court of competent jurisdiction, then such determination shall not affect any other provisions of this Lease, all of which other provisions shall remain in full force and effect; and it is the intention of the parties that if a provision of this Lease is capable of two constructions, one of which would render the provision void and the other of which would render the provision valid, then the provision shall have the meaning which renders it valid. 23. Delays. In any case where either party hereto is required to do any act, other than the payment of money including without limitation Annual Rent and Additional Rent, and is delayed in so doing by reason of or resulting from an Act of God, war, civil commotion, fire or other casualty, labor difficulties, shortages of labor, materials or equipment, government regulations or other causes beyond such party's reasonable control, such period of time shall not be counted in determining the time during which such work or act shall be completed, whether such time shall be designated by a fixed date, a fixed time or "a reasonable time". In any case where work is to be paid for out of insurance proceeds or condemnation awards, due allowance shall be made for delays in the collection of such proceeds and awards. 24. Estoppel Certificates. Tenant and Landlord each agree from time to time, upon not less than fifteen (15) days prior written request, to execute, acknowledge and deliver to the other a statement in writing certifying that this Lease is unmodified and in full force and effect, or if modified, stating the modifications; that the requested party has no defenses, offsets or counterclaims against its obligations under this Lease (including Tenant's obligation to pay Annual Rent and Additional Rent) or, if there are any defenses, offsets, or counterclaims, setting them forth in reasonable detail; and setting forth the dates to which the Annual Rent and Additional Rent and other charges have been paid. Any such statement delivered pursuant to this paragraph may be relied upon by any prospective purchaser or mortgagee of the Premises, Building and/or Lot, or any prospective assignee of any such mortgage, or any prospective assignee of this Lease, or any other similarly interested party. 25. Waiver of Subrogation. Tenant and Landlord each hereby release the other to the extent of their respective insurance coverage, from any and all liability for any loss or damage caused by fire or any of the extended coverage casualties or any other casualty insured against, even if such fire or other casualty shall be brought about by the fault or negligence of Tenant, Landlord or their agents. Tenant and Landlord agree that their respective policies covering such loss or damage shall contain a clause to the effect that this release shall not affect said policies or the right of Tenant or Landlord, as the case may be, to recover thereunder and otherwise acknowledging this mutual waiver of subrogation. 26. Waiver. No waiver of any condition or legal right or remedy shall be implied by the failure of Landlord to declare a forfeiture, or any other reasons, and no waiver of any condition or covenant shall be valid unless it be in writing signed by Landlord. No waiver by Landlord in respect to one tenant of the Building or Lot shall constitute a waiver in favor of any other tenant, nor shall the waiver or a breach of any condition or covenant be claimed or pleaded to excuse a future breach of the same condition or covenant. The mention in this Lease of any specific right or remedy shall not preclude Landlord from exercising any other right or from having any other remedy or from maintaining any action to which it may be otherwise entitled either at law or in equity; and for the purpose of any suit by Landlord brought or based on this Lease, this Lease shall be construed to be a divisible contract, to the end that successive actions may be maintained as successive periodic sums shall mature under this Lease. It is further agreed that failure to include in any suit or action any sum or sums then matured shall not be a bar to the maintenance of any suit or action for the recovering of said sum or sums so omitted at a later time. 27. Surrender and Holding Over. Tenant shall deliver up and surrender to Landlord possession of the Premises upon the expiration of the Term of this Lease or its earlier termination in any way, broom clean and in as good condition and repair as the same shall be at the commencement of said Term (damage by fire and other perils covered by standard fire and extended coverage insurance and ordinary wear and tear, subject to Paragraph 9 of this Lease, only excepted), and shall deliver the keys at the office of Landlord or Landlord's agent. Should Tenant or any party claiming under Tenant remain in possession of the Premises, or any part thereof, after any termination of this Lease, no tenancy or interest in the Premises shall result therefrom but such holding over shall be an unlawful detainer and all such parties shall be subject to immediate eviction and removal, and Tenant shall upon demand pay to Landlord, as liquidated damages, a sum equal to double the Annual Rent, Additional Rent and any other sums to be paid as specified herein for any period during which Tenant shall hold the Premises after the stipulated Term of this Lease may be terminated or have expired. 28. Lease Inures to Benefit of Successors and Assigns. Subject to the provisions hereof, this Lease and all the terms, covenants, provisions and conditions herein contained shall inure to the benefit of and be binding upon their respective successors and assigns including, without limitation, their heirs, personal representative, debtor in possession, trustee, custodian, receiver, or any similar functionary serving in proceedings brought by or against Landlord or Tenant (or their respective successors and assigns) under the Bankruptcy Code (as now or hereafter in effect), Insolvency Laws, or any similar laws relating to bankruptcy, insolvency or the adjustment of debts, provided, however, that no subletting or assignment by, from, through or under Tenant in violation of the provisions hereof shall vest in the subletees or assigns any right, title or interest whatever. 29. Quiet Enjoyment. Landlord hereby covenants and agrees that if Tenant shall perform all the covenants, agreements and other provisions herein stipulated to be performed or observed on Tenant's part, Tenant shall at all time during the continuance hereof have the peaceable and quiet enjoyment and possession of the Premises without any manner of molestation or hindrance from Landlord or any person or persons lawfully claiming under Landlord, subject, however, to the terms of this Lease and any instruments having a prior lien. The rights granted by this Paragraph are in lieu of any other rights Tenant may have by statute or at law. 30. No Partnership. Landlord does not, in any way or for any purpose, become a partner of Tenant in the conduct of its business, or otherwise, or joint venturer or a member of a joint enterprise with Tenant. 31. Notices. Any notice or consent required to be given by or on behalf of either party to the other shall be in writing and shall be given by mailing such notice or consent by registered or certified mail, return receipt requested, postage prepaid, addressed, if to Landlord, at the address hereinabove specified, and, if to Tenant, at the address hereinabove specified if prior to the Commencement Date and thereafter to the Premises, or at such other address as may be specified from time to time in writing sent to the other party by like notice. Notices so given shall be deemed to be given and effective at the time they are deposited with the United States Postal Service. 32. Interpretation. Wherever either the word "Landlord" or "Tenant" is used in this Lease, it shall be considered as meaning the parties respectively, wherever the context permits or requires, and when the singular and/or neuter pronouns are used herein, the same shall be construed as including all persons and corporations designated respectively as Landlord or Tenant in this instrument wherever the context requires. 33. Paragraph Headings. The paragraph headings are inserted only as a matter of convenience and for reference and in no way define, limit or describe the scope or intent of this Lease nor in any way affect this Lease. 34. Broker's Commissions. Tenant warrants that there are no claims for broker's commission or finder's fees in connection with its execution of this Lease or the tenancy hereby created and agrees to indemnify and save Landlord harmless from any liability that may arise from such claim, including reasonable attorneys fees. 35. Interruption of Services. With respect to any services furnished by Landlord to Tenant, Landlord shall in no event be liable for failure to furnish the same when prevented from doing so by strike, lockout, breakdown, accident, order or regulation of or by any governmental authority, or failure of supply, or inability by the exercise of reasonable diligence to obtain supplies, parts or employees necessary to furnish such services, or because of war or other emergency, or for any cause beyond Landlord's reasonable control, or for any cause due to any act or neglect of Tenant or its servants, agents, employees, licensees or any person claiming by, through or under Tenant, and in no event shall Landlord ever be liable to Tenant for any indirect or consequential damages. 36. Subordination. Upon the written request of Landlord, Tenant shall enter into a recordable agreement with the holder of any present or future mortgage of the Premises, Building or Lot which shall provide that (i) this Lease shall be subordinated to such mortgage, (ii) in the event of foreclosure of said mortgage or any other action thereunder by the mortgagee, the mortgagee (and its successors in interest) and Tenant shall be directly bound to each other to perform the respective undischarged obligations of Landlord and Tenant hereunder (in the case of Landlord accruing after such foreclosure or other action and in the case of Tenant whether accruing before or after such foreclosure or other action), (iii) this Lease shall continue in full force and effect, and (iv) Tenant's rights hereunder shall not be disturbed, except as in this Lease provided. The word "mortgage" as used herein includes mortgages, deeds of trust and all similar instruments, all modifications, extensions, renewals and replacements thereof, and any and all assignments of the Landlord's interest in this Lease given as collateral security for any obligation of Landlord. 37. Modification. In the event that any holder or prospective holder of any mortgage, as hereinbefore defined, which includes the Premises as part of the mortgaged Premises, shall request any modification of any of the provisions of this Lease, other than a provision directly related to the Annual Rent, Additional Rent or other sums payable hereunder, the duration of the Term hereof, or the size, use or location of the Premises, Tenant agrees that Tenant will enter into a written agreement in recordable form with such holder or prospective holder which shall effect such modification and provide that such modification shall become effective and binding upon Tenant and shall have the same force and effect as an amendment to this Lease in the event of foreclosure or other similar action taken by such holder or prospective holder or by anyone claiming by, through or under such holder or prospective holder. 38. Multiple Parties. If Tenant shall consist of more than one person or if there shall be a guarantor of Tenant's obligations, then the liability of all such persons, including the guarantor, if any, shall be joint and several. 39. Submission Not an Option. The submission of this Lease for examination and negotiation does not constitute an offer to lease, a reservation of, or option for the Premises and shall vest no right in any party. Tenant or anyone claiming under or through Tenant shall have the rights to the Premises as set forth herein and this Lease becomes effective as a Lease only upon execution and acknowledgement thereof by Landlord and Tenant, regardless of any written or verbal representation of any agent, manager or employee of Landlord to the contrary. 40. Financial Information. It is hereby understood and agreed that TENANT will supply to the LANDLORD, on an annual basis, a copy of TENANT'S audited financial statement within one hundred twenty (120) days following TENANT'S fiscal year end. Any information obtained by LANDLORD pursuant to the provisions of this Paragraph shall be treated as confidential, except that LANDLORD may disclose such information to its lenders. 41. Signage Tenant shall have the right, at Tenant's sole cost and expense, to install new signage, the size and location of which to be mutually agreed upon by Landlord and Tenant. Notwithstanding the foregoing, any signage proposed by Tenant must have Landlord's prior written approval, which approval shall be at the reasonable discretion of the Landlord, and must be in conformance with the standard sign design criteria established by Landlord for the building and the Town of Danvers. The Tenant, at its sole cost and expense, shall be responsible for obtaining all municipal and other approvals necessary for the erection and maintenance of such sign. The Landlord shall cooperate with the Tenant in its filing of applications for any such approvals, provided that the Tenant shall pay all costs associated with such applications and approvals. 42. Entire Agreement. This Lease and the exhibits and any rider attached hereto, set forth all the covenants, promises, agreements conditions, representations and understandings between Landlord and Tenant concerning the Premises and there are no covenants, promises, agreements, conditions, representations or understandings, either oral or written between them other than those herein set forth and this Lease expressly supersedes any proposals or other written documents relating hereto. Except as herein otherwise provided, no subsequent alteration, amendment, change or addition to this Lease shall be binding upon Landlord and Tenant unless reduced to writing and signed by them. Tenant agrees that Landlord and its agents have made no representations or promises with respect to the Premises, or the Building of which the Premises are a part, or the Lot, except as herein expressly set forth. IN WITNESS WHEREOF, the Landlord and Tenant have caused this Lease to be signed in triplicate, under seal, as of the day and year first above written, one copy for Tenant and two copies to Landlord. Witness as to Landlord: Landlord: Thomas J. Flatley d/b/a The Flatley Company By Thomas J. Flatley Its President Witness as to Tenant: Tenant: Abiomed, Inc. By: John F. Thero Its Vice President Finance and Administration Duly Authorized Exhibit "B" Landlord's Work TENANT acknowledges that it has examined and inspected the Premises and is familiar with the physical condition thereof. TENANT further acknowledges (a) that other than in Paragraph 9 of this Lease, LANDLORD has not made and does not hereby make any representations regarding the physical condition of the Premises and (b) that there are no warranties, either expressed or implied, regarding the condition of the Premises. Any such warranties which may exist, are hereby expressly released and waived. Accordingly, TENANT hereby agrees to accept the Premises in their "as-is" condition, except for the following: 1. LANDLORD shall supply and install rooftop HVAC Units to provide heat and air conditioning to the Premises. TENANT shall be responsible with as part of TENANT'S own fit up work to install all supply and return air duct work and difusers. Exhibit "C" Tenant's Work Tenant shall have the right, at its own cost and expense, to run telephone and computer lines underground between the building at 24 Cherry Hill Drive, Danvers and the Premises at any time, subject to Landlord's prior written approval of Tenant's plans, which approval shall not be unreasonably withheld or delayed. EX-10.03 3 LEASE 33 CHERRY HILL THE FLATLEY COMPANY STANDARD FORM OF INDUSTRIAL LEASE SUBMISSION NOT AN OPTION THE SUBMISSION OF THIS LEASE FOR EXAMINATION AND NEGOTIATION DOES NOT CONSTITUTE AN OFFER TO LEASE, A RESERVATION OF, OR OPTION FOR THE PREMISES AND SHALL VEST NO RIGHT IN ANY PARTY. TENANT OR ANYONE CLAIMING UNDER OR THROUGH TENANT SHALL HAVE THE RIGHTS TO THE PREMISES AS SET FORTH HEREIN AND THIS LEASE BECOMES EFFECTIVE AS A LEASE ONLY UPON EXECUTION AND ACKNOWLEDGEMENT THEREOF BY LANDLORD AND TENANT, REGARDLESS OF ANY WRITTEN OR VERBAL REPRESENTATION OF ANY AGENT, MANAGER OR EMPLOYEE OF LANDLORD TO THE CONTRARY. Revision Date: 10/85 TABLE OF CONTENTS Section Page 1. Incorporation of Basic Data 1 2. Premises 2 3. Term 2 3A. Option to Extend 3 4. Security Deposit 3 5. Annual Rent 3 6. Additional Rent (a) Taxes 4 (b) Tax Payments 4 (c) Common Areas 5 (d) Charges for Common Areas 5 7. Utilities 6 8. Tenant's Use of Premises and Miscellaneous Covenants. . . 6 9. Repairs to and Maintenance of Premises by Tenant 8 10. Subletting and Assignment 9 11. Alterations 11 12. Trash Removal 11 13. Mechanic's Liens 11 14. Access to Premises 12 15. Removal of Improvements 12 16. Tenant's Insurance Obligations 12 17. Repairs by Landlord 13 18. Damage or Destruction by Eminent Domain, Fire or Casualty 13 19. Tenant's Default (a) Events of Default 14 (b) Landlord's Remedies 15 (i) Termination of Lease 15 (ii) Suit for Possession 15 (iii)Reletting of Premises 16 (iv) Acceleration of Payment 16 (v) Monetary Damages 16 (vi) Anticipatory Breach; Cumulative Remedies 17 (c) Waiver 17 (d) Right of Landlord to Cure Tenant's Default 17 (e) Late Payment 18 (f) Lien on Personal Property 18 20. Liability of Landlord; Indemnification 19 21. Lease Not to be Recorded 20 22. Severability 20 23. Delays 20 24. Estoppel Certificates 21 25. Waiver of Subrogation 21 26. Waiver 21 27. Surrender and Holding Over 21 28. Lease Inures to Benefit of Successors and Assigns 22 29. Quiet Enjoyment 22 30. No Partnership 22 31. Notices 22 32. Interpretation 23 33. Paragraph Headings 23 34. Broker's Commissions 23 35. Interruption of Services 23 36. Subordination 23 37. Modification 23 38. Multiple Parties 24 39. Submission Not an Option 24 40. Financial Information 24 41. Signage 24 42. Entire Agreement 24 Exhibit "A" 27 Exhibit "B" 28 LEASE AGREEMENT (Standard Industrial Form) This Lease is made as of this 8th day of August, 1996, by and between the party named as landlord in the "Basic Data" set forth below (hereinafter "Landlord") and the party named as tenant in the "Basic Data" set forth below (hereinafter "Tenant"). In consideration of the mutual covenants herein set forth, the parties agree as follows: 1. Incorporation of Basic Data. All capitalized terms in this Lease shall have the meanings as described to them in the Basic Data set forth below unless otherwise defined herein. BASIC DATA Landlord: shall mean Thomas J. Flatley d/b/a The Flatley Company, having a principal place of business and current mailing address at 50 Braintree Hill Office Park, Braintree, MA 02184. Tenant: shall mean Abiomed, Inc., having a principal place of business and current mailing address at 33 Cherry Hill Park, Danvers, MA 01923. Premises: shall mean 18,203 square feet, being the approximate size of the Premises and the basis on which Annual Rent and Additional Rent shall be paid by Tenant to Landlord, in the building located at Cherry Hill Park, 33 Cherry Hill Drive, Danvers, MA 01923 (the "Building"), which Building is located on a lot (the "Lot"), all as such Premises, Building and Lot are described and/or outlined in Exhibit A. Term: shall mean the period of five (5) years commencing upon the Commencement Date. Adjustment of Term: If the Commencement Date is other than the first day of a calendar month, this Lease shall continue in full force and effect for a period of five (5) years from the first day of the calendar month next succeeding the Commencement Date. Security Deposit: INTENTIONALLY OMITTED. Annual Rent: shall mean the annual sum of ONE HUNDRED THOUSAND ONE HUNDRED SIXTEEN AND 50/100 Dollars ($100,116.50), payable in equal monthly installments of EIGHT THOUSAND THREE HUNDRED FORTY-THREE AND 04/100 Dollars ($8,343.04), for the first (1st) through and including the fifth (5th) full year of the Lease Term, all payable in accordance with Paragraph 5 of this Lease plus all other charges, amounts, reimbursements or other sums (collectively "Additional Rent") to be paid by Tenant to Landlord in accordance with Paragraph 6 and any other terms of this Lease calling for the payment of money by Tenant to Landlord. Use: shall mean manufacturing, research and development, sales and/or office use and animal research and medical use, not involving the emission of objectionable odors, fumes, noise or vibration that do not meet OSHA guidelines and for no other use, and from time to time to procure all licenses and permits necessary therefor. Commence- ment Date: shall mean July 1, 1996. Landlord and Tenant agree to execute a Supplemental Agreement setting forth the actual Occupancy and Term Dates, once the same have been established. Tenant's Pro Rata Share: shall be based on the fraction: Square Footage of TENANT's Premises = 18,203 Aggregate of All the Rentable Square Footage 60,600 (whether or not rented or improved within the entire Building) Tenant's Insurance Require- ments: Public Liability: ONE MILLION AND 00/100 ($1,000,000.00) Dollars for injury to one person, ONE MILLION AND 00/100 ($1,000,000.00) Dollars for injury to more than one person, per incident. Property Damage: ONE MILLION AND 00/100 ($1,000,000.00) Dollars per incident. 2. Premises. Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord, subject to and with the benefit of the terms, covenants, conditions and provisions of this Lease, the Premises, but reserving and excepting to Landlord the use of the exterior walls, the roof and the right to install, maintain, use, repair and replace pipes, ducts, conduits, wires and appurtenant fixtures leading through the Premises and serving other parts of the Building or Lot in locations which will not materially interfere with Tenant's use thereof. Exhibit A is intended only to show the location of the Premises in relation to the Building and/or Lot and the initial size of such Building and Lot, and other data thereon is to be disregarded and in no event deemed or construed to be a representation that the Building or buildings, parking areas or other improvements shown thereon will be constructed and/or maintained as indicated thereon, or that additions to, or reductions from, the Building or Lot may not be made by the Landlord during the Term of this Lease, but rather the Landlord shall have the right to do so and any such addition or reduction shall take effect upon Landlord's giving notice to Tenant to that effect. Landlord reserves the right to construct or sell any free-standing buildings on any portion of the Lot. 3. Term. The Term of this Lease shall commence upon the Commencement Date, which shall be the date set forth in the Basic Data, subject to Paragraph 23 concerning unavoidable delays. The Premises shall be deemed ready for occupancy under the terms of this Lease and Landlord's obligation to deliver the Premises to Tenant as of the Commencement Date shall be deemed fulfilled if Landlord's construction within the Premises as required herein is substantially completed with the exception of minor items which can be fully completed within thirty (30) days without material interference with Tenant's occupancy of the Premises. The use by Tenant of the Premises for business shall be deemed conclusive that the Premises were substantially completed and that Tenant accepted delivery of the Premises as substantially completed. Landlord's construction and other work shall be as set forth in Exhibit B hereto. 3A. In the event Tenant has not been in default of any of the terms, conditions and covenants of this Lease Agreement and any Amendments made hereto during the Term hereof, Landlord shall grant to Tenant an option to extend the Term of this Lease for an additional period of Five (5) years, subject to the following terms and conditions: 1. The Premises shall be offered to Tenant at the then current market rent rate and terms. 2. Tenant must exercise this option no earlier than nine (9) calendar months but no later than six (6) calendar months prior to the termination date of this Lease by sending written notice to Landlord by registered or certified mail. Thereupon, this Lease shall be deemed extended for an additional period of Five (5) years, upon all of the same terms and conditions of this Lease and any Amendments made hereto with the exception of the annual rent stipulated hereinabove. Tenant's exercise of this renewal option shall be null and void unless Landlord receives (i) simultaneously with the notice of exercise and (ii) thirty (30) days before the commencement of the Renewal Term, Tenant's certified financial statements for the immediately preceding three (3) year period. In the event the credit worthiness of Tenant is not sufficient in Landlord's sole discretion to assure the future performance of Tenant's obligations under the Lease during the Renewal Term, Landlord may nullify Tenant's exercise of this renewal option. 4. Security Deposit. INTENTIONALLY OMITTED. 5. Annual Rent. Tenant hereby covenants and agrees to pay to Landlord, at the place to which notices to Landlord are required to be sent or such other person or place as Landlord may from time to time designate, as Annual Rent for the Premises in lawful money of the United States, without demand, setoff or deduction, during the Term of this Lease, the sum set forth in Basic Data, payable in equal monthly installments as set forth there, in advance on the first day of each and every calendar month during said Term. Annual Rent for any fraction of a month at the commencement or expiration of said Term shall be prorated on a per diem basis. 6. Additional Rent. (a) Taxes. Tenant covenants and agrees to pay, as Additional Rent, with respect to each calendar or other tax year beginning or ending during the Term hereof, an amount equal to Tenant's Pro Rata Share, as set forth in the Basic Data, of the real estate taxes (including betterments and other special assessments) allocated to the Building and Lot for such tax year. If there shall be more than one taxing authority, the real estate taxes for any period shall be the sum of the real estate taxes for said period attributable to each taxing authority. Tenant's Pro Rata Share of the real estate taxes shall be adjusted for and with respect to any partial tax years on a per diem basis. The expression "real estate taxes" shall include all general and special assessments, so-called, rent taxes and other governmental charges which may be charged, assessed or imposed upon the Building and Lot or Landlord. If at any time during the term hereof the present system of ad valorem taxation of real property shall be changed so that in lieu of the ad valorem tax on real property in whole or in part, or in addition thereto, there shall be assessed on Landlord a capital levy or other tax on, but not limited to, the Annual Rent and/or any Additional Rent ("Gross Rents") received with respect to the Building and Lot, or a federal, state, county, municipal or other local income, franchise, excise or similar tax, assessment, levy or charge (distinct from any method of taxation prevailing at the commencement of the Term hereof) measured by or based, in whole or in part, upon any such Gross Rents, then any and all of such taxes, assessments, levies or charges, to the extent that the same would be payable if the Building and Lot were the only property of Landlord subject to them, and if the income from the Building and Lot were the only taxable income of Landlord during the year in question, shall be deemed to be included within the term "real estate taxes". Notwithstanding anything to the contrary contained herein, "real estate taxes" shall not include Landlord's Federal or State income taxes as presently imposed. (b) Tax Payments. Payment of Tenant's Pro Rata Share of the real estate taxes allocated to the Building and Lot shall be paid, as Additional Rent, monthly, and at the times and in the fashion herein provided for the payment of Annual Rent. For an initial period from the Commencement Date until the end of the first full tax year in which the Building and/or Lot containing the Premises shall be assessed as a completed improvement, as distinguished from inprocess construction ("the full assessment year"), the amount so to be paid shall be the initial monthly payment reasonably fixed by Landlord on or about the Commencement Date. Promptly after the determination by any taxing authority of real estate taxes upon the Building and Lot for each tax year, Landlord shall make a determination of the Tenant's Pro Rata Share of the real estate taxes and if the aforesaid payments theretofore made for such tax year by Tenant exceed Tenant's Pro Rata Share of the real estate taxes such overpayment shall be credited against the payments thereafter to be made by Tenant pursuant to this paragraph; and if the real estate taxes for such tax year are greater than such payments theretofore made on account for such tax year, Tenant shall pay such deficiency to Landlord within ten (10) days of demand therefor. Copies of tax bills submitted by Landlord with any such statement shall be conclusive evidence of the amount of real estate taxes charged, assessed or imposed. After the full assessment year, the initial monthly payment on account of the Tenant's Pro Rata Share of the real estate taxes shall be replaced each year by a payment which is one-twelfth (1-12th) of the Tenant's Pro Rata Share of the real estate taxes for the immediately preceding tax year. An equitable adjustment shall be made in the event of any change in the method or system of taxation from that which is now applicable, including without limitation any change in the dates and periods for which such taxes were levied. Tenant shall pay all taxes upon its signs and other property in or upon the Premises and Tenant covenants and agrees to pay promptly when due all municipal, county, state and federal taxes assessed against Tenant's leasehold interest and Tenant's fixtures, furnishing, equipment, stock-in-trade, and other personal property of any kind owned, installed or existing in the Premises. For the purpose of this paragraph such taxes shall not be included within real estate taxes upon the Building and Lot. (c) Common Areas. Tenant and its officers, employees, agents, customers and invitees shall have the right, in common with Landlord and all others to whom Landlord may from time to time grant rights, to use the common areas of the Building and Lot for their intended purposes subject to such reasonable rules and regulations as Landlord may from time to time impose, including the designation of specific areas in which cars owned or operated by Tenant, its officers, employees and agents must be parked. Tenant agrees after notice thereof to abide by such rules and regulations and to cause its officers, employees, agents, customers and invitees to conform thereto. Landlord shall at all times have full control, management and direction of the common areas and the right to put the common areas to such use as the Landlord may determine in its sole discretion. Landlord shall have the right at any time and from time to time to change the layout of the common areas including, but without limitation, the right to add to or subtract from their shape and size and to alter their location; provided, however, Landlord shall always maintain such amount of parking in the common areas as may be required by local zoning law or ordinance at the time of such parking area's original construction. (d) Charges for Common Areas. Tenant shall pay its Pro Rata Share of the Common Areas Maintenance Costs during the Term of this Lease as Additional Rent and in the manner hereafter provided. "Common Areas Maintenance Costs" as used herein shall mean the total cost and expenses incurred by Landlord, its agents, contractors and/or designees for operating, maintaining, insuring (or, if Landlord elects to self insure, an amount equal to the cost of insurance if it were to be provided by a third party of Landlord's choosing), managing, repairing and/or replacing all or any part of the common areas and any installations therein, thereon, thereunder or thereover. Payment on account of Tenant's Pro Rata Share of the Common Areas Maintenance Costs shall be paid as Additional Rent, monthly, and at the times and in the fashion herein provided for the payment of Annual Rent based initially on Landlord's reasonable estimate. Promptly after the end of the partial calendar year during which the Term begins and promptly after the end of each year thereafter, Landlord shall make a determination of Tenant's Pro Rata Share of the Common Areas Maintenance Costs. If the aforesaid payments theretofore made for such period by Tenant exceed Tenant's Pro Rata Share, such overpayment shall be credited against the payments thereafter to be made by Tenant pursuant to this paragraph; and if Tenant's Pro Rata Share is greater than such payments theretofore made on account for such period, Tenant shall pay such deficiency to Landlord within ten (10) days of demand therefore. The initial monthly payment on account of the Common Areas Maintenance Costs shall be replaced after Landlord's determination of Tenant's Pro Rata Share thereof for the preceding accounting period by a payment which is one-twelfth (1/12th) of Tenant's actual Pro Rata Share thereof for the immediately preceding accounting period, with adjustments as appropriate where such preceding period is less than a full twelve-month period. Appropriate adjustments shall be made for any partial month at the commencement of the Term and for any partial month or year at the end of the Term. 7. Utilities. Tenant agrees to pay or cause to be paid, as Additional Rent, directly to the authority or party charged with the collection thereof, all charges for gas, electricity, light, heat, power, water, sewerage, telephone or other service used, rendered or supplied to or for the Tenant upon or in connection with the Premises throughout the Term of this Lease, and to indemnify Landlord and save it harmless against any liability or damages on such account. Tenant shall also at its sole cost and expense procure any and all necessary permits, licenses or other authorizations required for the lawful and proper maintenance and use upon the Premises of wires, pipes, conduits, tubes and other equipment and appliances for use in supplying any such services to and upon the Premises except such permits, licenses and authorizations which shall be required in connection with original construction of the Premises, which shall be obtained by Landlord. It is understood and agreed that Landlord shall be under no obligation to furnish any utilities to the Premises and shall not be liable for any interruption or failure in the supply of any such utilities to the Premises. If a charge shall be made from time to time by the public authority having jurisdiction of the Premises for the use of the sanitary sewer system, Tenant shall pay the share thereof equitably apportionable to the Premises. Tenant shall also pay for any sprinkler standby service charge equitably apportionable to the Premises. If the Premises are not separately metered, Tenant shall pay to Landlord, as billed and as additional Rent, its share of water and/or sewer bills. In case any such water and sewer charges are not paid by Tenant at the time when the same are payable, if to municipal officials, Landlord may nevertheless pay the same to such officials and charge Tenant the cost thereof, which charge shall become payable on the first day of the following month as Additional Rent. 8. Tenant's Use of Premises and Miscellaneous Covenants. During the Term of this Lease Tenant shall use the Premises solely for the purposes listed in the Basic Data. Tenant agrees that it will not use, or permit or suffer the use of, the Premises or any part thereof for any other business or purpose. Tenant shall use and occupy the Premises in a careful, safe and proper manner and shall keep the Premises in a clean and safe condition in accordance with all applicable laws, ordinances and government regulations. Tenant agrees that it will not do or suffer to be done, or keep or suffer to be kept, anything in, upon or about the Premises which will contravene Landlord's policies insuring against loss or damage by fire or other hazards, or which will prevent Landlord from procuring such policies from companies acceptable to Landlord. During the Term of this Lease, Tenant further covenants and agrees as follows: (a) Not to use the Premises for any use involving the emission of objectionable odors, fumes, noise or vibration. Tenant covenants and agrees that it shall advise Landlord in writing of any materials or substances it deals with in any way on the Premises that may be deemed to be hazardous or toxic prior to such substances or materials being brought upon the Premises or Lot. In any event, Tenant shall strictly comply with all state, federal and municipal laws, regulations, guidelines and ordinances concerning the use, storage, handling and disposition of any substance or material that is or may be deemed to be toxic or hazardous and Tenant agrees to indemnify Landlord against any liability, including attorneys fees and costs, in connection therewith. At Landlord's request, Tenant shall provide Landlord with reasonable assurances that Tenant can and will comply with the foregoing and, if Landlord so requests, Tenant shall obtain insurance of such type and in such amount as Landlord may reasonably specify, such policy to name Landlord as an insured party and be obtained at Tenant's sole cost prior to such substances or materials being brought upon the Premises or Lot. Any such policy shall provide that it may not be cancelled or amended without thirty (30) days prior notice to Landlord, and shall be issued by a company or companies reasonably satisfactory to Landlord. Failure of Tenant to provide Landlord with such reasonable assurances or evidence of any reasonably requested insurance in connection with the bringing of such materials or substances upon the Premises or Lot shall be reasonable cause for Landlord to prohibit such substances or materials from being brought upon the Premises or Lot or, at Landlord's election, a default under this Lease. Notwithstanding anything contained herein to the contrary, LESSEE shall strictly comply with all state, federal and municipal laws, regulations, guidelines and ordinances concerning the use, storage, handling and disposition of any substance or material that is or may be deemed to be toxic or hazardous and Tenant agrees to indemnify and hold Landlord harmless against any liability, including attorneys fees and costs, in connection therewith. (b) Not to permit the use of the Premises for trucking of a character or volume greater than that customarily employed by other occupants of the Building or Lot or any use permitted under this Lease for which trucking of such character and volume is customary. (c) Not to place on the Premises or Building any placard or sign of advertising that the Premises or any part thereof may be sublet, nor to place any other sign or placard on the Premises or Building which is visible from the exterior of the Premises or Building without the written consent of Landlord, except as delineated in Section 41 of this Lease, namely signage. (d) Not to injure, overload, deface or permit to be injured, overloaded, or defaced, the Premises or Building, and not to permit any holes to be made in the exterior of the building; and not to make, allow or suffer any waste or any unlawful, improper or offensive use of the Premises that shall be injurious to any person or property or invalidate any insurance on the Premises, Building or Lot or increase the premium thereof. Notwithstanding anything contained herein to the contrary, it is hereby understood and agreed that any/all roof penetration to the Premises and/or Building shall be performed only by an authorized Carlisle contractor approved by Landlord. (e) To conform to and comply with all state and municipal laws and with all requirements of any public body or officers having jurisdiction of the Premises and with the requirements or regulations of any Board of Fire Underwriters or insurance company insuring the Premises at the time with respect to the care, maintenance, use and nonstructural alteration of the Premises, all at Tenant's sole expense. 9. Repairs to and Maintenance of Premises by Tenant. Tenant shall keep the Premises, including without limitation, both the inside and outside of all doors and windows therein, in the same order and repair as they are in on the Commencement Date, reasonable wear and tear and damage by fire or other casualty normally insured under a so-called "extended coverage endorsement" only excepted; and to keep all fixtures and equipment on the Premises including, without limitation, all heating, plumbing, electrical, air-conditioning, ventilation and mechanical fixtures and equipment serving only the Premises in the same order and repair as they are in on the Commencement Date, damage by fire or other casualty normally insured under an "extended coverage endorsement" only excepted. Tenant shall, at it sole cost and expense, during the entire Term of this Lease, maintain in force a service contract providing for the repair and annual service and maintenance of all heating, ventilating and air conditioning equipment serving the Premises, such contract to be with a party reasonably acceptable to Landlord or, if Landlord should so elect, with a party designated by Landlord. Tenant shall make all repairs and replacements and do all other work necessary for the foregoing purposes. Landlord represents that as of the Commencement Date of this Lease, the heating, plumbing, electrical, air-conditioning, ventilation and mechanical fixtures and equipment serving the Premises shall be in good working order and of sufficient capacity for Tenant's Use as set forth herein. In addition, if any repairs or maintenance are required to the machinery and components of the HVAC system located in the Premises during the twelve month period commencing with the Commencement Date of this Lease, and Tenant so notifies Landlord in writing thereof within said twelve month period, then, notwithstanding anything contained herein to the contrary, Landlord shall, at its sole cost and expense, make such repairs and maintenance. Following the aforementioned twelve month period, Landlord shall have no liability or responsibility with respect to the repair, maintenance or operation of the HVAC system within the Premises. It is further agreed that the exception of reasonable wear and tear shall not apply so as to permit Tenant to keep the Premises in anything less than suitable, tenantlike, efficient and usable condition considering the nature of the Premises and the use reasonably made thereof, or in less than good and tenantlike repair, and that except in case of fire or other casualty normally insured under an "extended coverage endorsement" there is no exception to the rule that all glass must be kept good and whole by Tenant. Tenant shall also be responsible for the cost of all repairs to the Building (including, without limitation, the structure and roof thereon and common areas therein) and the Lot if the same are occasioned by Tenant's or its employees', agents' or invitees' improper or negligent use thereof. Notwithstanding the foregoing, in the event a major repair (for the purpose of this paragraph, "major repair" shall mean a repair which costs in excess of $10,000.00 Dollars) occurs during the last year of the term hereof and provided the same is not caused by the Tenant's negligence, Landlord shall perform the work and bill Tenant its pro rata based on the remaining balance of the Lease. 10. Subletting and Assignment. (a) Tenant covenants and agrees not to assign, sell, mortgage, pledge or in any manner transfer this Lease or any interest therein or sublet the Premises or any part thereof, or grant any concession or license or otherwise permit occupancy of all or any part thereof by another person or entity without the prior written consent of Landlord, which consent shall not be unreasonably withheld provided all the provisions of this Paragraph 10 are complied with and subject to Landlord's right to terminate this Lease as set forth in this Paragraph 10. Any such consent by Landlord shall be held to apply only to the specific transaction thereby authorized. Such consent shall not be construed as a waiver of the obligation of Tenant to obtain from Landlord consent to any other or subsequent assignment or subletting period. The collection of rent by Landlord from any assignee, subtenant or other occupant shall not be deemed an acceptance of the assignee, subtenant or occupant as tenant or release of Tenant from its obligation under this Lease. (b) Notwithstanding the provisions of Paragraph 10(a), above, any proposed assignee or sublessee submitted to the Landlord for approval must have the same or greater financial strength as Tenant and if such is not the case, Landlord's withholding of consent shall be reasonable. If Tenant shall request permission to assign this Lease or sublet the Premises or any part thereof Tenant shall, together with such request for consent thereto, inform Landlord of the rental and any other amounts to be paid by such assignee or subtenant in connection with such subletting or assignment regardless of the nomenclature such payment may take, the term of any subletting, and any financial information required or requested by Landlord to make the determination required by the first sentence of this Paragraph 10(b). Landlord shall have the right to terminate this Lease in lieu of consenting or reasonably withholding its consent to the proposed subletting or assignment, provided that Landlord shall exercise such right within forty-five (45) days of its receipt of Tenant's request for such consent and provided, further, that Tenant shall have the right to withdraw its request for such consent within fifteen (15) days after its receipt of such notice from Landlord, in which event such notice of termination shall become null and void. If this Lease shall be terminated pursuant to the provisions of the immediately preceding sentence, such termination shall become effective upon the last day of the calendar month next following Landlord's giving said notice of termination. (c) If Landlord consents in writing to an assignment or subletting, such consent shall be deemed conditioned upon Tenant's compliance with the following provisions and the failure to so comply shall be deemed to give Landlord reasonable cause for withholding or withdrawing its consent: (1) The assignment or subletting must be, respectively, of all Tenant's leasehold interest or of the entire Premises and, in the case of an assignment, shall also transfer to the assignee all of Tenant's rights in and interests under this Lease, including but without limitation, the Security Deposit hereunder. (2) At the time of such assignment or subletting, this Lease must be in full force and effect without any breach or default hereunder on the part of Tenant. (3) The assignee or sublessee shall assume, by written recordable instrument, in form and content satisfactory to Landlord, the due performance of all Tenant's obligations under this Lease, including any accrued obligations at the time of the assignment or subletting. (4) A copy of the assignment or sublease and the original assumption agreement (both in form and content satisfactory to Landlord) fully executed and acknowledged by the assignee or sublessee, together with a certified copy of a properly executed corporate resolution authorizing such assumption agreement, shall be received by Landlord within ten (10) days from the effective date of such assignment or subletting. (5) Such assignment or subletting shall be upon and subject to all the provisions, terms, covenants and conditions of this Lease including but without limitation the use permitted hereby and Tenant (and any assignee(s), subtenant(s) and guarantor(s) of this Lease) shall continue to be and remain primarily and unconditionally liable hereunder. (6) Tenant shall reimburse Landlord for Landlord's attorneys' fees for examination of and/or preparation of any documents in connection with such assignment or subletting. (7) Any rent, sum or other consideration to be paid or given in connection with such sublease or assignment, either initially or over time, in excess of the Annual Rent and/or Additional Rent and/or other charges to be paid under this Lease shall be paid directly to Landlord as if such amount were originally called for by the terms of this Lease as Additional Rent and Tenant shall be liable to Landlord for all such amounts. (d) Subject to the enumerated conditions of the preceding Paragraph 10(c), Landlord hereby consents to the assignment or subletting of the entire Premises to a corporation which is a wholly owned subsidiary of Tenant, to its parent, affiliate, or controlling corporation or corporations, or to any successor by consolidation, merger or sale of all or substantially all of its assets. For the purposes hereof, an "affiliate" shall be an entity (i) at least fifty percent (50%) of which is owned directly by Tenant or the entity owning or controlling Tenant or (ii) Tenant or such other entity owning or controlling Tenant having sufficient direct voting ownership to effectively control the management thereof. Notwithstanding any such assignment or subletting as provided in this Paragraph 10(d), such assignment or subletting shall be upon and subject to all the provisions, terms, covenants and conditions of this Lease and Tenant (and any assignee(s), subtenant(s) and guarantor(s) of this Lease) shall continue to be and remain liable hereunder. (e) In the event that Tenant hereunder is a corporation (other than one whose shares are regularly and publicly traded on a recognized stock exchange in the United States), Tenant represents that the ownership and power to vote its entire outstanding capital stock belongs to and is vested in the officer or officers executing this Lease or members of his or their immediate family. If there shall occur any change in the ownership of and/or power to vote the majority of the outstanding capital stock of Tenant, whether such change of ownership is by sale, assignment, bequest, inheritance, operation of law or otherwise, without the prior written consent of Landlord, which consent shall not be unreasonably withheld, then Landlord shall have the option to terminate this lease upon thirty (30) days notice to Tenant. 11. Alterations. Tenant shall not modify the leasehold improvements or make any alterations to the Premises without first obtaining Landlord's prior written approval of such modifications and alterations; provided, however, Landlord shall not unreasonably withhold its consent to nonstructural alterations of the Premises; provided further that Landlord's consent shall not be required for non- structural alterations costing less than FIVE THOUSAND AND 00/100 ($5,000.00) Dollars each. 12. Trash Removal. Tenant shall be responsible for the removal of its own trash, rubbish, garbage and refuse removal, at its sole cost and expense. Tenant shall not permit the accumulation of rubbish, trash, garbage and other refuse in and around the Premises. No rubbish, trash, garbage or other refuse shall be burned by Tenant in the Premises or elsewhere in the Building or Lot and all of the same shall be kept in suitable containers in the interior of the Premises (or in locations outside the Premises as Landlord may permit by notice in writing) until the same is picked up from the Premises and the Building and/or Lot. The removal agency selected by Tenant shall be subject to Landlord's reasonable approval. In the event Tenant fails to remove any accumulation of rubbish within twenty-four (24) hours after notice from Landlord to remove the same, Landlord shall have the right (but not the obligation) to remove the same, in which event the cost thereof shall be paid by Tenant as Additional Rent immediately upon demand. 13. Mechanic's Liens. Tenant will not permit to be created or to remain undischarged any lien, encumbrance or charge arising out of any work of any contractor, mechanic, laborer or materialman or any mortgage, conditional sale, security agreement or chattel mortgage, or otherwise which might be or become a lien or encumbrance or charge upon the Premises or any part thereof or the income therefrom, and Tenant will not suffer any other matter or thing whereby the estate, rights and interest of Landlord in the Premises or any part thereof might be impaired. If any lien on account of an alleged debt of Tenant or any notice of contract by a party engaged by Tenant or Tenant's contractor to work on the Premises shall be filed against the Premises, Building or Lot, or any part thereof, within ten (10) days after notice of the filing thereof Tenant shall cause the same to be discharged of record by payment or bond. If Tenant shall fail to cause such lien to be discharged within the period aforesaid then, in addition to any other right or remedy, Landlord may, but shall not be obligated to, discharge the same either by paying the amounts claimed to be due or by procuring the discharge of such lien by deposit or by bonding proceedings, and in any such event Landlord shall be entitled to compel the prosecution of an action for the foreclosure of such lien by the lienor or to pay the amount of the judgment in favor of the lienor with interest, costs and allowances. Any amount so paid by Landlord and all costs and expenses, including without limitation reasonable attorneys fees, incurred by Landlord in connection therewith, together with interest thereon at the rate specified in Paragraph 19(d) from the respective dates of Landlord's making of the payment or incurring of the cost and expense, shall constitute Additional Rent payable by Tenant under this Lease and shall be paid by Tenant to Landlord immediately upon demand. 14. Access to Premises. Landlord shall have access to the Premises at all reasonable time, with reasonable notice to allow for an escort by Abiomed personel and minimal business distruption, except in cases of emergency at any time, for the purpose of examining the same or making such repairs, alterations, additions or improvements to the Premises, or the Building of which the Premises are a part, that Landlord may deem necessary or which Tenant has failed to do (but nothing in this Paragraph shall obligate Landlord to make any such repairs, alterations, additions or improvements) and also for the purpose of exhibiting the Premises and putting up notices "To Rent," or "For Sale", provided Tenant does not exercise its option to renew as defined in Paragraph 3A herein, which notices shall not be removed, obliterated or hidden by Tenant. No forcible entry shall be made by Landlord unless such entry shall be reasonably necessary to prevent injury, loss or damage to persons or property, and Landlord shall repair any damage to property occasioned thereby. Landlord shall repair any damage to property of Tenant or anyone claiming under Tenant caused by or resulting from Landlord's making any such repairs, alterations, additions or improvements except only such damage as shall result from the entry to the Premises and/or the making of such repairs, alterations, additions or improvements which Landlord shall make as a result of an emergency or the default, negligence, fault or willful misconduct of Tenant or anyone claiming under or through Tenant. No action of Landlord pursuant to this Paragraph shall be deemed an eviction or disturbance of Tenant nor shall Tenant be allowed any abatement of rent or damages for any injury or inconvenience occasioned thereby. 15. Removal of Improvements. Except as otherwise hereinafter provided, all trade fixtures, furniture, furnishings and signs installed in the Premises by Tenant and paid for by it shall remain the property of Tenant and shall be removed by Tenant upon the expiration of the Term of this Lease or its earlier termination, provided (a) that any of such items as are affixed to the Premises and require severance may be removed only if Tenant shall repair any damage caused by such removal, (b) that Tenant shall have fully performed all of the covenants and agreements to be performed by it under the provisions of this Lease, and (c) that Tenant shall comply with the last sentence of this Paragraph. If the Tenant fails to remove such items from the Premises prior to the expiration of this Lease or earlier termination hereof, all such trade fixtures, furniture, furnishings and signs shall become the property of the Landlord. All lighting fixtures, heating and cooling equipment and all other installations, alterations, additions and improvements to the Premises other than specialty HVAC lighting and other fixtures comprising the clean rooms, shall be and remain the property of Landlord on the ending of the Term hereof or any earlier termination of this Lease and shall not be removed from the Premises. 16. Tenant's Insurance Obligation. Tenant shall carry public liability insurance in a company or companies licensed to do business in the state in which the Premises are located and reasonably approved by Landlord. Said insurance shall be in minimum amounts reasonably required by Landlord from time to time by notice to Tenant and shall name Landlord as an additional insured, as its interests may appear, and Tenant shall provide Landlord with evidence, when requested, that such insurance is in full force and effect. Tenant shall carry property damage insurance for all of its equipment and for all leasehold improvements above the building standard which are made by Landlord or Tenant in and to the Premises, which policies shall name Landlord as an additional insured. If required by Landlord, receipts evidencing payment for said insurance shall be delivered to Landlord at least annually by Tenant and each policy shall contain an endorsement that will prohibit its cancellation or amendment prior to the expiration of thirty (30) days after notice of such proposed cancellation or amendment to Landlord. Tenant shall carry insurance in the initial amounts listed in the Basic Data and shall provide Landlord with certificates of such Tenant Insurance Requirements on or prior to the Commencement Date. 17. Repairs by Landlord. Landlord agrees to make all necessary repairs or alterations to the foundation, roof and structural parts of the exterior walls of the Premises. Notwithstanding the foregoing, if any of said repairs or alterations shall be made necessary by reason of repairs, installations, alterations, additions or improvements made by Tenant or anyone claiming under or through Tenant, by reason of the default, negligence, fault, or willful misconduct of such party, or by reason of a default in the performance or observance of any agreements, conditions or other provisions on the part of Tenant to be performed or observed, or by reason of any special use to which the Premises may be put, Tenant shall be liable for the cost of all such repairs or alterations as may be necessary. Landlord shall not be deemed to have committed a breach of any obligation to make repairs or alterations or perform any other act unless (a) it shall have made such repairs or alterations or performed such other act negligently, or (b) it shall have received notice from Tenant designating the particular repairs or alterations needed or the other act of which there has been failure of performance and Landlord shall have failed to make such repairs or alterations or performed such other act within a reasonable time after the receipt of such notice; and in the latter event Landlord's liability shall be limited to the cost of making such repairs or alterations or performing such other act. As used in this Lease, the expression "exterior walls of the Premises" does not include glass, windows, doors or door frames, or window sashes or frames. Landlord shall make all necessary repairs to the common areas and shall maintain such common areas (except sidewalks abutting the Premises) reasonably clear of litter and shall perform snow handling to the extent required for business operations of the Building. The provisions of this Paragraph shall not apply in the case of damage or destruction by fire or other casualty or by eminent domain, in which events the obligations of Landlord shall be controlled by Paragraph 18 hereof. In the event the foregoing repairs or alterations cannot reasonably be completed within a thirty (30) day period, then Landlord shall have such additional time as is reasonably necessary to complete the same, provided Landlord has commenced the making of such repairs or alterations within said thirty (30) days and thereafter pursued the completion thereof with due diligence. In the event Landlord fails or neglects to make the repairs to the Premises which Landlord is required to make in accordance with the terms of this Lease within thirty (30) days after receipt of written notice from Tenant of the necessity thereof, or within twenty-four (24) hours in the event of an emergency, then Tenant may, but shall not be obligated to, make such repairs and Landlord shall reimburse Tenant for the actual cost thereof within thirty (30) days after receipt of a bill thereof and copies of applicable invoices. In the event Landlord fails to reimburse Tenant as aforesaid, Tenant may, at Tenant's option, deduct said cost from the rent payments next due to Landlord. In the event such repairs cannot reasonably be completed within thirty (30) days after receipt of written notice from Tenant of the necessity therefor, and Landlord commences the making of such repairs within said thirty (30) day period and thereafter pursues the completion thereof with reasonable diligence, Landlord shall have such additional time as is reasonably necessary to complete the same before Tenant has the right to exercise any remedies set forth in this Lease. 18. Damage or Destruction by Eminent Domain, Fire or Casualty. (a) In the event that the Premises and/or Building and/or Lot, or any material part thereof, shall be taken by any public authority or for any public use, or shall be destroyed or damaged by fire or casualty, or by the action of any public authority, then this Lease may be terminated at the election of Landlord. Such election shall be made by the giving of written notice by Landlord to Tenant within thirty (30) days after the right of election accrues. If by such taking Tenant is deprived of the use of more than thirty percent (30%) of the Square Footage of the Premises, or if by such fire or other casualty more than fifty percent (50%) of the Square Footage of the Premises shall be rendered untenable, and if Landlord does not within a reasonable time after notice from Tenant commence and diligently pursue to rebuild or repair, Tenant may at its option terminate this Lease by notice in writing to Landlord within thirty (30) days after the date of such damage or destruction, or within thirty (30) days after it has received notice of such taking, as the case may be. If either Landlord or Tenant exercises such option, this Lease shall terminate on the date designated in its notice of termination, which shall be not less than fifteen (15) nor more than thirty (30) days after the date of such notice. (b) If this Lease is not terminated pursuant to the provisions of Paragraph 18(a) above, this Lease shall continue in full force and effect and a just proportion of the Annual Rent shall be suspended or abated until the Premises shall be put by Landlord in proper condition for use, which Landlord covenants to do with reasonable diligence and to the extent permitted by the net proceeds of insurance recovered or damages awarded for such destruction or taking, and subject to zoning and building laws then in existence. "Net proceeds of insurance recovered or damaged awarded" refers to the gross amount of such insurance or award less the reasonable expenses of Landlord in connection with the collection of same, including without limitations, reasonable fees and expenses for legal and appraisal services. In the case of a taking which permanently reduces the Square Footage of the Premises, the rent shall be abated for the remainder of the Term in proportion to the amount by which the Square Footage has been reduced. (c) Irrespective of the form in which recovery may be had by law, all rights to damages or compensation shall belong to Landlord in all cases, except for damages to Tenant's fixtures, property or equipment, and for damages, if any, separately awarded for relocation expenses and business interruption, provided that none of the same shall reduce the damages or compensation which Landlord would otherwise recover. Tenant hereby grants to Landlord all of Tenant's rights to such damages and awards and covenants to deliver such further assignments thereof as Landlord may from time to time request. 19. Tenant's Default. (a) Events of Default. The following shall be "Events of Default" under this Lease: (i) If Tenant shall fail to pay any monthly installment of Annual Rent or Additional Rent when due, and such default shall continue for ten (10) days after written notice from Landlord; provided that no such notice shall be required if Tenant has received a similar notice within three hundred sixty-five (365) days prior to such violation or failure; (ii) If Tenant shall fail to timely make any other payment required under this Lease and such default shall continue for ten (10) days after written notice from Landlord; provided that no such notice shall be required if Tenant has received a similar notice within three hundred sixty-five (365) days prior to such violation or failure; (iii) If Tenant shall violate or fail to perform any of the other terms, conditions, covenants or agreements herein made by Tenant, if such violation or failure continues for a period of thirty (30) days after Landlord's written notice thereof to Tenant; provided that no such notice shall be required if Tenant has received a similar notice within three hundred sixty-five (365) days prior to such violation or failure; (iv) Tenant's becoming insolvent, as that term is defined in Title 11 of the United States Code, entitled Bankruptcy, 11 U.S.C. Section 101 et. seq. (the "Bankruptcy Code"), or under the insolvency laws of any State, District, Commonwealth or Territory of the United States (the "Insolvency Laws"); (v) the appointment of a receiver or custodian for all or a substantial portion of Tenant's property or assets, or the institution of a foreclosure action upon all or a substantial portion of Tenant's real or personal property; (vi) the filing of a voluntary petition under the provisions of the Bankruptcy Code or Insolvency Laws; (vii) the filing of an involuntary petition against Tenant as the subject debtor under the Bankruptcy Code or Insolvency Laws, which is either not dismissed within forty-five (45) days of filing, or results in the issuance of an order for relief against the debtor, whichever is earlier; (viii) Tenant's making or consenting to an assignment for the benefit of creditors or a common law composition of creditors; or (ix) Tenant's interest in this Lease being taken on execution in any action against the Tenant. (b) Landlord's Remedies. Should an Event of Default occur under this Lease, Landlord may pursue any or all of the following remedies: (i) Termination of Lease. Landlord may terminate this Lease by giving written notice of such termination to Tenant, or by reentry, whereupon the mailing of such notice of termination addressed to Tenant, or in the case of reentry, upon such reentry, with or without notice or demand and with or without process of law (forcibly if necessary), this Lease shall automatically cease and terminate and Tenant shall be immediately obligated to quit the Premises. Termination by entry or notice as provided herein shall be effective and complete upon entry or the mailing of notice, respectively, and shall require no further action on the part of Landlord including, without limitation, resort to legal process under applicable law. Any other notice to quit or notice of Landlord's intention to reenter the Premises is hereby expressly waived. If Landlord elects to terminate this Lease, everything contained in this Lease on the part of Landlord to be done and performed shall cease without prejudice, subject, however, to the right of Landlord to recover from Tenant all Annual Rent and Additional Rent and any other sums accrued up to the time of termination or recovery of possession by Landlord, whichever is later. (ii) Suit for Possession. Landlord may proceed to recover possession of the Premises under and by virtue of the provisions of the laws of the state in which the Premises are located or by such other proceedings, including reentry and possession, as may be applicable. (iii) Reletting of Premises. Should this Lease be terminated before the expiration of the Term of this Lease by reason of Tenant's default as hereinabove provided, or if Tenant shall abandon or vacate the Premises before the expiration or termination of the Term of this Lease without having paid the full rental for the remainder of such Term, Landlord shall have the option, but not the obligation, to relet the Premises for such rent and upon such terms as are not unreasonable under the circumstances and, if the full Annual Rent and Additional Rent reserved under this Lease (and any of the costs, expenses or damages indicated below) shall not be realized by Landlord, Tenant shall be liable for all damages sustained by Landlord, including, without limitation, deficiency in rent, reasonable attorneys' fees, brokerage fees and expenses of placing the Premises in first-class rentable condition including without limitation any alterations and improvements. Landlord, in putting the Premises in good order or preparing the same for rerental may, at Landlord's option, make such alterations, repairs or replacements in the Premises as Landlord, in its sole judgment, considers advisable and necessary for the purpose of reletting the Premises, and the making of such alterations, repairs, or replacements shall not operate or be construed to release Tenant from liability hereunder as aforesaid. Landlord shall in no event be liable in any way whatsoever for failure to relet the Premises, or in the event that the Premises are relet, for failure to collect the rent under such reletting, and in no event shall Tenant be entitled to receive the excess, if any, of such net rent collected over the sums payable by Tenant to Landlord hereunder. (iv) Acceleration of Payment. If Tenant shall fail to pay any monthly installment of Annual Rent and/or Additional Rent pursuant to the terms of this Lease, within ten (10) days of the date when each such payment is due, for three (3) consecutive months, or three (3) times in any period of twelve (12) consecutive months, then Landlord may, by giving written notice to Tenant, exercise any of the following options: (A) declare the entire rent reserved under this Lease to be due and payable within ten (10) days of such notice; (B) declare the rent reserved under this Lease for the next six (6) months (or at Landlord's option for a lesser period) to be due and payable within ten (10) days of such notice; or (C) require an additional security deposit to be paid to Landlord within ten (10) days of such notice in an amount not to exceed six (6) months rent. Landlord may invoke any of the options provided for herein at any time during which an Event of Default remains uncured. (v) Monetary Damages. Any damage or loss of rent sustained by Landlord may be recovered by Landlord, at Landlord's option, at the time of the reletting, or in separate actions, from time to time, as said damage shall have been made more easily ascertainable by successive relettings, or at Landlord's option in a single proceeding deferred until the expiration of the Term of this Lease (in which event Tenant hereby agrees that the cause of action shall not be deemed to have accrued until the date of expiration of said Term) or in a single proceeding prior to either the time or reletting or the expiration of the Term of this Lease. In addition, should it be necessary for Landlord to employ legal counsel to enforce any of the provisions herein contained, Tenant agrees to pay all attorney's fees and court costs reasonably incurred. (vi) Anticipatory Breach; Cumulative Remedies. Nothing contained herein shall prevent the enforcement of any claim Landlord may have against Tenant for anticipatory breach of the unexpired Term of this Lease. In the event of a breach or anticipatory breach by Tenant of any of the covenants or provisions hereof,Landlord shall have the right of injunction and theright to invoke any remedy allowed at law or in equity as if reentry, summary proceedings and other remedies were not provided for herein. Mention in this Lease of any particular remedy shall not preclude Landlord from any other remedy, in law or in equity, whether or not mentioned herein. Landlord's election to pursue one or more remedies, whether as set forth herein or otherwise, shall not bar Landlord from seeking any other or additional remedies at any time and in no event shall Landlord ever be deemed to have elected one or more remedies to the exclusion of any other remedy or remedies. Any and all rights and remedies that Landlord may have under this Lease, and at law and in equity, shall be cumulative and shall not be deemed inconsistent with each other, and any two or more of all such rights and remedies may be exercised at the same time insofar as permitted by law. Tenant hereby expressly waives any and all rights of redemption granted by or under any present or future laws in the event of Tenant being evicted or dispossessed for any cause, or in the event of Landlord obtaining possession of the Premises, by reason of the violation by Tenant of any of the covenants and conditions of this Lease, or otherwise. (c) Waiver. If, under the provisions hereof, Landlord shall institute proceedings against Tenant and a compromise or settlement thereof shall be made, the same shall not constitute a waiver of any other covenant, condition or agreement herein contained, nor of any of Landlord's rights hereunder. No waiver by Landlord of any breach of any covenant, condition or agreement herein contained shall operate as a waiver of such covenant, condition, or agreement itself, or of any subsequent breach thereof. No payment by Tenant or receipt by Landlord of a lesser amount than the monthly installments of rent herein stipulated shall be deemed to be other than on account of the earliest stipulated rent, nor shall any endorsement or statement on any check or letter accompanying a check for payment of Annual Rent, Additional Rent or any other sum be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such Annual Rent, Additional Rent or any other sum or so pursue any other remedy provided in this Lease. No reentry by Landlord, and no acceptance by Landlord of keys from Tenant, shall be considered an acceptance of a surrender of the Lease or Premises. (d) Right of Landlord to Cure Tenant's Default. If Tenant defaults in the making of any payment or in the doing of any act herein required to be made or done by Tenant, then Landlord may, but shall not be required to, make such payment or do such act, and charge the amount of the expense thereof, if made or done by Landlord, with interest thereon at the rate per annum which is four percent (4%) greater than the "base lending rate" then in effect at The First National Bank of Boston, Boston, Massachusetts, or the highest rate permitted by law, whichever may be less; with it being the express intent of the parties that nothing herein contained shall be construed or implemented in such a manner as to allow Landlord to charge or receive interest in excess of the maximum legal rate then allowed by law. Such payment and interest shall constitute Additional Rent hereunder due and payable with the next monthly installment of Annual Rent; but the making of such payment or the taking of such action by Landlord shall not operate to cure such default or to stop Landlord from the pursuit of any remedy to which Landlord would otherwise be entitled. (e) Late Payment. If Tenant fails to pay any installment of Annual Rent and/or Additional Rent on or before the first (1st) day of the calendar month when such installment becomes due and payable, Tenant shall pay to Landlord a late charge of five percent (5%) of the amount of such installment, and, in addition, such unpaid installment shall bear interest at the rate per annum which is four percent (4%) greater than the "base lending rate" then in effect at The First National Bank of Boston, Boston, Massachusetts, or the highest rate permitted by law, whichever may be less; with it being the express intent of the parties that nothing herein contained shall be construed or implemented in such manner as to allow Landlord to charge or receive interest in excess of the maximum legal rate then allowed by law. Such late charge and interest shall constitute Additional Rent hereunder due and payable with the next monthly installment of Annual Rent due, or if payments have been accelerated pursuant to this Paragraph 19, due and payable immediately. (f) Lien on Personal Property. Landlord shall have a lien upon all the personal property of Tenant moved into the Premises, as and for security for the Annual Rent, Additional Rent and other obligations of Tenant herein provided. In order to perfect and enforce said lien, Landlord may, at any time after default by Tenant in the payment of Annual Rent, Additional Rent or default of other obligations to be performed or complied with by Tenant under this Lease, seize and take possession of any and all personal property belonging to Tenant that may be found in and upon the Premises. If Tenant fails to redeem the property so seized, by payment of whatever sum may be due Landlord under and by virtue of the provisions of this Lease, then and in that event, Landlord shall have the right, after twenty (20) days written notice to Tenant of its intention to do so, to sell such personal property so seized at public or private sale and upon such terms and conditions as to Landlord may appear advantageous, and after the payment of all proper charges incident to such sale, apply the proceeds thereof to the payment of any balance due to Landlord on account of Annual Rent, Additional Rent or other obligations of Tenant pursuant to this Lease. In the event there shall then remain in the hands of Landlord any balance realized from the sale of said personal property as aforesaid, the same shall be held by Landlord as additional Security Deposit. The exercise of the foregoing remedy by Landlord shall not relieve or discharge Tenant from any deficiency owed to Landlord which Landlord has the right to enforce pursuant to any other provisions of this Lease. 20. Liability of Landlord; Indemnification. (a) Landlord shall not be liable to Tenant, its employees, agents, contractors, business invitees, licensees, customers, clients, family members or guests for any damage, compensation or claim arising from (i) the necessity of repairing any portion of the Premises, Building or Lot, (ii) the interruption in the use of the Premises, (iii) accident or damage to persons or property resulting from the use or operation (by Landlord, Tenant, or any other person or persons whatsoever) of the Premises or of any elevators or heating, cooling, electrical or plumbing equipment or apparatus in the Premises or Building, (iv) the termination of this Lease by reason of the destruction of the Premises, (v) any fire, robbery, theft, mysterious disappearance and/or any other casualty, (vi) any leakage in any part or portion of the Premises or the Building, or from water, rain or snow that may leak into, or flow from, any part of the Premises or the Building, or from drains, pipes or plumbing work in the Building, or from any other cause whatsoever, or (vii) for any personal injury arising from the use, occupancy and condition of the Premises, unless such personal injury is caused by the gross negligence of Landlord, or a willful act or failure to act on the part of Landlord. Tenant shall not be entitled to any abatement or diminution of rent as a result of any of the foregoing occurrences, nor shall the same release Tenant from its obligations hereunder or constitute an eviction. Any goods, property or personal effects of Tenant, its employees, agents, contractors, business invitees, licensees, customers, clients, family members or guests, stored or placed in or about the Premises, Building or Lot shall be at their risk, and the Landlord shall not in any manner be held responsible therefor. The employees of the Landlord are prohibited from receiving any packages or other articles delivered to the Building by Tenant, and if any such employee receives any such package or articles, such employee shall be the agent of the Tenant for such purposes and not of the Landlord. Tenant acknowledges that Landlord will not carry insurance on Tenant's furniture, furnishings, fixtures, equipment and/or improvements in or to the Premises and Tenant shall have full responsibility therefor and shall bear the full risk of loss thereto. It is expressly understood and agreed that Tenant shall look to its business interruption and property damage insurance policies, and not to Landlord or its agents or employees, for reimbursement for any damages or losses incurred as a result of any of the foregoing occurrences, other than clause (a)(vii) above, and that said policies shall contain waiver of subrogation clauses. (b) If Landlord shall fail to perform any covenant, term or condition of this Lease upon Landlord's part to be performed or be guilty of negligence with regard to any party claiming by, under or through Tenant and, as a consequence of such default or negligence, Tenant shall recover a money judgment against Landlord, such judgment shall be satisfied only out of the proceeds of sale received upon execution of such judgment and levy thereof against the right, title and interest of Landlord in the Premises, Building and Lot, and neither Landlord nor any of the partners designated herein as Landlord comprising any partnership designated herein as Landlord or any trustees or beneficiaries designated herein as Landlord shall be personally liable for any judgment rendered against Landlord or any deficiency thereunder. It is agreed that in no event shall Tenant have any right to levy execution against any property of Landlord other than its interest in the Premises, Building and Lot and the rents or other income therefrom as hereinbefore expressly provided. In the event of sale or other transfer of Landlord's right, title and interest in the Premises, Building and Lot, Landlord shall be released from all liability and obligations hereunder. If all or any part of Landlord's interest in this Lease shall be held by a trust, no trustee, shareholder or beneficiary of such trust shall be personally liable for any of the covenants or agreements, expressed or implied, hereunder. IN NO EVENT SHALL LANDLORD EVER BE PERSONALLY LIABLE TO TENANT OR ANYONE CLAIMING BY, UNDER OR THROUGH TENANT FOR CONSEQUENTIAL DAMAGES, SUCH DAMAGES OR CLAIMS THEREFOR BEING HEREBY EXPRESSLY WAIVED BY TENANT. (c) Tenant hereby agrees to indemnify and hold Landlord harmless from and against any cost, damage, claim, liability or expense (including attorney's fees) incurred by or claimed against Landlord, directly or indirectly, which is occasioned by or results from any default hereunder or any willful or negligent act or omission on the part of Tenant, its agents, employees, contractors, invitees, licensees, customers, clients, family members and guests, or as a result of or in any way arising from Tenant's use and occupancy of the Premises, Building and/or Lot or in any other manner which relates to the business of Tenant. Any such cost, damage, claim, liability or expense incurred by Landlord for which Tenant is obligated to reimburse Landlord shall be deemed Additional Rent due and payable as Additional Rent upon demand by Landlord. It is expressly understood and agreed that Tenant's liability under this Lease extends to the acts and omissions of any subtenant or assignee and any agent, employee, contractor, invitee, licensee, customer, client, family member and guest of any subtenant or assignee. 21. Lease Not to be Recorded. Tenant agrees that it will not record this Lease. Both parties shall, upon the request of either, execute and deliver a notice or short form of this Lease in such form, if any, as may be permitted by applicable statute. If this Lease is terminated before the Term expires, the parties shall execute, deliver and record an instrument acknowledging such fact and the actual date of termination of this Lease, and Tenant hereby appoints Landlord its attorney-in-fact in its name and on its behalf to execute and record such instrument, such appointment being coupled with an interest and irrevocable. 22. Severability. It is agreed that if any provision of this Lease shall be determined to be void by any court of competent jurisdiction, then such determination shall not affect any other provisions of this Lease, all of which other provisions shall remain in full force and effect; and it is the intention of the parties that if a provision of this Lease is capable of two constructions, one of which would render the provision void and the other of which would render the provision valid, then the provision shall have the meaning which renders it valid. 23. Delays. In any case where either party hereto is required to do any act, other than the payment of money including without limitation Annual Rent and Additional Rent, and is delayed in so doing by reason of or resulting from an Act of God, war, civil commotion, fire or other casualty, labor difficulties, shortages of labor, materials or equipment, government regulations or other causes beyond such party's reasonable control, such period of time shall not be counted in determining the time during which such work or act shall be completed, whether such time shall be designated by a fixed date, a fixed time or "a reasonable time". In any case where work is to be paid for out of insurance proceeds or condemnation awards, due allowance shall be made for delays in the collection of such proceeds and awards. 24. Estoppel Certificates. Tenant and Landlord each agree from time to time, upon not less than fifteen (15) days prior written request, to execute, acknowledge and deliver to the other a statement in writing certifying that this Lease is unmodified and in full force and effect, or if modified, stating the modifications; that the requested party has no defenses, offsets or counterclaims against its obligations under this Lease (including Tenant's obligation to pay Annual Rent and Additional Rent) or, if there are any defenses, offsets, or counterclaims, setting them forth in reasonable detail; and setting forth the dates to which the Annual Rent and Additional Rent and other charges have been paid. Any such statement delivered pursuant to this paragraph may be relied upon by any prospective purchaser or mortgagee of the Premises, Building and/or Lot, or any prospective assignee of any such mortgage, or any prospective assignee of this Lease, or any other similarly interested party. 25. Waiver of Subrogation. Tenant and Landlord each hereby release the other to the extent of their respective insurance coverage, from any and all liability for any loss or damage caused by fire or any of the extended coverage casualties or any other casualty insured against, even if such fire or other casualty shall be brought about by the fault or negligence of Tenant, Landlord or their agents. Tenant and Landlord agree that their respective policies covering such loss or damage shall contain a clause to the effect that this release shall not affect said policies or the right of Tenant or Landlord, as the case may be, to recover thereunder and otherwise acknowledging this mutual waiver of subrogation. 26. Waiver. No waiver of any condition or legal right or remedy shall be implied by the failure of Landlord to declare a forfeiture, or any other reasons, and no waiver of any condition or covenant shall be valid unless it be in writing signed by Landlord. No waiver by Landlord in respect to one tenant of the Building or Lot shall constitute a waiver in favor of any other tenant, nor shall the waiver or a breach of any condition or covenant be claimed or pleaded to excuse a future breach of the same condition or covenant. The mention in this Lease of any specific right or remedy shall not preclude Landlord from exercising any other right or from having any other remedy or from maintaining any action to which it may be otherwise entitled either at law or in equity; and for the purpose of any suit by Landlord brought or based on this Lease, this Lease shall be construed to be a divisible contract, to the end that successive actions may be maintained as successive periodic sums shall mature under this Lease. It is further agreed that failure to include in any suit or action any sum or sums then matured shall not be a bar to the maintenance of any suit or action for the recovering of said sum or sums so omitted at a later time. 27. Surrender and Holding Over. Tenant shall deliver up and surrender to Landlord possession of the Premises upon the expiration of the Term of this Lease or its earlier termination in any way, broom clean and in as good condition and repair as the same shall be at the commencement of said Term (damage by fire and other perils covered by standard fire and extended coverage insurance and ordinary wear and tear, subject to Paragraph 9 of this Lease, only excepted), and shall deliver the keys at the office of Landlord or Landlord's agent. Should Tenant or any party claiming under Tenant remain in possession of the Premises, or any part thereof, after any termination of this Lease, no tenancy or interest in the Premises shall result therefrom but such holding over shall be an unlawful detainer and all such parties shall be subject to immediate eviction and removal, and Tenant shall upon demand pay to Landlord, as liquidated damages, a sum equal to double the Annual Rent, Additional Rent and any other sums to be paid as specified herein for any period during which Tenant shall hold the Premises after the stipulated Term of this Lease may be terminated or have expired. 28. Lease Inures to Benefit of Successors and Assigns. Subject to the provisions hereof, this Lease and all the terms, covenants, provisions and conditions herein contained shall inure to the benefit of and be binding upon their respective successors and assigns including, without limitation, their heirs, personal representative, debtor in possession, trustee, custodian, receiver, or any similar functionary serving in proceedings brought by or against Landlord or Tenant (or their respective successors and assigns) under the Bankruptcy Code (as now or hereafter in effect), Insolvency Laws, or any similar laws relating to bankruptcy, insolvency or the adjustment of debts, provided, however, that no subletting or assignment by, from, through or under Tenant in violation of the provisions hereof shall vest in the subletees or assigns any right, title or interest whatever. 29. Quiet Enjoyment. Landlord hereby covenants and agrees that if Tenant shall perform all the covenants, agreements and other provisions herein stipulated to be performed or observed on Tenant's part, Tenant shall at all time during the continuance hereof have the peaceable and quiet enjoyment and possession of the Premises without any manner of molestation or hindrance from Landlord or any person or persons lawfully claiming under Landlord, subject, however, to the terms of this Lease and any instruments having a prior lien. The rights granted by this Paragraph are in lieu of any other rights Tenant may have by statute or at law. 30. No Partnership. Landlord does not, in any way or for any purpose, become a partner of Tenant in the conduct of its business, or otherwise, or joint venturer or a member of a joint enterprise with Tenant. 31. Notices. Any notice or consent required to be given by or on behalf of either party to the other shall be in writing and shall be given by mailing such notice or consent by registered or certified mail, return receipt requested, postage prepaid, addressed, if to Landlord, at the address hereinabove specified, and, if to Tenant, at the address hereinabove specified if prior to the Commencement Date and thereafter to the Premises, or at such other address as may be specified from time to time in writing sent to the other party by like notice. Notices so given shall be deemed to be given and effective at the time they are deposited with the United States Postal Service. 32. Interpretation. Wherever either the word "Landlord" or "Tenant" is used in this Lease, it shall be considered as meaning the parties respectively, wherever the context permits or requires, and when the singular and/or neuter pronouns are used herein, the same shall be construed as including all persons and corporations designated respectively as Landlord or Tenant in this instrument wherever the context requires. 33. Paragraph Headings. The paragraph headings are inserted only as a matter of convenience and for reference and in no way define, limit or describe the scope or intent of this Lease nor in any way affect this Lease. 34. Broker's Commissions. Tenant warrants that there are no claims for broker's commission or finder's fees in connection with its execution of this Lease or the tenancy hereby created and agrees to indemnify and save Landlord harmless from any liability that may arise from such claim, including reasonable attorneys fees. 35. Interruption of Services. With respect to any services furnished by Landlord to Tenant, Landlord shall in no event be liable for failure to furnish the same when prevented from doing so by strike, lockout, breakdown, accident, order or regulation of or by any governmental authority, or failure of supply, or inability by the exercise of reasonable diligence to obtain supplies, parts or employees necessary to furnish such services, or because of war or other emergency, or for any cause beyond Landlord's reasonable control, or for any cause due to any act or neglect of Tenant or its servants, agents, employees, licensees or any person claiming by, through or under Tenant, and in no event shall Landlord ever be liable to Tenant for any indirect or consequential damages. 36. Subordination. Upon the written request of Landlord, Tenant shall enter into a recordable agreement with the holder of any present or future mortgage of the Premises, Building or Lot which shall provide that (i) this Lease shall be subordinated to such mortgage, (ii) in the event of foreclosure of said mortgage or any other action thereunder by the mortgagee, the mortgagee (and its successors in interest) and Tenant shall be directly bound to each other to perform the respective undischarged obligations of Landlord and Tenant hereunder (in the case of Landlord accruing after such foreclosure or other action and in the case of Tenant whether accruing before or after such foreclosure or other action), (iii) this Lease shall continue in full force and effect, and (iv) Tenant's rights hereunder shall not be disturbed, except as in this Lease provided. The word "mortgage" as used herein includes mortgages, deeds of trust and all similar instruments, all modifications, extensions, renewals and replacements thereof, and any and all assignments of the Landlord's interest in this Lease given as collateral security for any obligation of Landlord. 37. Modification. In the event that any holder or prospective holder of any mortgage, as hereinbefore defined, which includes the Premises as part of the mortgaged Premises, shall request any modification of any of the provisions of this Lease, other than a provision directly related to the Annual Rent, Additional Rent or other sums payable hereunder, the duration of the Term hereof, or the size, use or location of the Premises, Tenant agrees that Tenant will enter into a written agreement in recordable form with such holder or prospective holder which shall effect such modification and provide that such modification shall become effective and binding upon Tenant and shall have the same force and effect as an amendment to this Lease in the event of foreclosure or other similar action taken by such holder or prospective holder or by anyone claiming by, through or under such holder or prospective holder. 38. Multiple Parties. If Tenant shall consist of more than one person or if there shall be a guarantor of Tenant's obligations, then the liability of all such persons, including the guarantor, if any, shall be joint and several. 39. Submission Not an Option. The submission of this Lease for examination and negotiation does not constitute an offer to lease, a reservation of, or option for the Premises and shall vest no right in any party. Tenant or anyone claiming under or through Tenant shall have the rights to the Premises as set forth herein and this Lease becomes effective as a Lease only upon execution and acknowledgement thereof by Landlord and Tenant, regardless of any written or verbal representation of any agent, manager or employee of Landlord to the contrary. 40. Financial Information. It is hereby understood and agreed that TENANT will supply to the LANDLORD, on an annual basis, a copy of TENANT'S audited financial statement within one hundred twenty (120) days following TENANT'S fiscal year end. Any information obtained by LANDLORD pursuant to the provisions of this Paragraph shall be treated as confidential, except that LANDLORD may disclose such information to its lenders. 41. Signage Tenant shall have the right, at Tenant's sole cost and expense, to install new signage, the size and location of which to be mutually agreed upon by Landlord and Tenant. Notwithstanding the foregoing, any signage proposed by Tenant must have Landlord's prior written approval, which approval shall be at the reasonable discretion of the Landlord, and must be in conformance with the standard sign design criteria established by Landlord for the building and the Town of Danvers. The Tenant, at its sole cost and expense, shall be responsible for obtaining all municipal and other approvals necessary for the erection and maintenance of such sign. The Landlord shall cooperate with the Tenant in its filing of applications for any such approvals, provided that the Tenant shall pay all costs associated with such applications and approvals. 42. Entire Agreement. This Lease and the exhibits and any rider attached hereto, set forth all the covenants, promises, agreements conditions, representations and understandings between Landlord and Tenant concerning the Premises and there are no covenants, promises, agreements, conditions, representations or understandings, either oral or written between them other than those herein set forth and this Lease expressly supersedes any proposals or other written documents relating hereto. Except as herein otherwise provided, no subsequent alteration, amendment, change or addition to this Lease shall be binding upon Landlord and Tenant unless reduced to writing and signed by them. Tenant agrees that Landlord and its agents have made no representations or promises with respect to the Premises, or the Building of which the Premises are a part, or the Lot, except as herein expressly set forth. IN WITNESS WHEREOF, the Landlord and Tenant have caused this Lease to be signed in triplicate, under seal, as of the day and year first above written, one copy for Tenant and two copies to Landlord. Witness as to Landlord: Landlord: Thomas J. Flatley d/b/a The Flatley Company By Thomas J. Flatley Its President Witness as to Tenant: Tenant: Abiomed, Inc. By: John F. Thero Its Vice President Finance and Administration Duly Authorized Exhibit "B" Landlord's Work TENANT acknowledges that it has examined and inspected the Premises and is familiar with the physical condition thereof. TENANT further acknowledges (a) that other than in Paragraph 9 of this Lease, LANDLORD has not made and does not hereby make any representations regarding the physical condition of the Premises and (b) that there are no warranties, either expressed or implied, regarding the condition of the Premises. Any such warranties which may exist, are hereby expressly released and waived. Accordingly, TENANT hereby agrees to accept the Premises in their "as-is" condition, except for the following: 1. LANDLORD shall supply and install rooftop HVAC Units to provide heat and air conditioning to the Premises. TENANT shall be responsible with as part of TENANT'S own fit up work to install all supply and return air duct work and difusers. Exhibit "C" Tenant's Work Tenant shall have the right, at its own cost and expense, to run telephone and computer lines underground between the building at 24 Cherry Hill Drive, Danvers and the Premises at any time, subject to Landlord's prior written approval of Tenant's plans, which approval shall not be unreasonably withheld or delayed. EX-27 4
5 This schedule contains financial information extracted from the Company's Consolidated Income Statement, Consolidated Balance Sheet and Consolidated Statement of Cash Flows and is qualified in its entirety by reference to Form 10-Q for the period ending December 31, 1996. 9-MOS MAR-31-1997 DEC-31-1996 1341094 8131987 3213835 119000 2049899 14920246 3846458 2518782 16768460 2228582 0 0 0 69823 14470055 16768460 10834371 10834371 3623033 10984816 0 0 (406980) 256535 256535 256535 0 0 0 256535 .04 .04
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