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Exhibit
10.01
LEASE TERMINATION
AGREEMENT
THIS LEASE TERMINATION
AGREEMENT dated as of July 26, 2007, by and among JOHN F. POWER,
AS TRUSTEE OF KNH REALTY TRUST, under a Declaration of Trust
dated January 29, 1981, recorded with the Suffolk County
Registry of Deeds in Book 9664, Page 114, having an address c/o
Farley White Management Company, 10 High Street, Suite 900, Boston,
Massachusetts 02110 (“Landlord”), POINT
THERAPEUTICS, INC., having an address of 155 Federal Street,
Boston, Massachusetts 02110 (“Tenant”), BROWN
BROTHERS HARRIMAN & CO., having an
address of 140 Broadway, New York, New York 10005 (“Brown
Brothers”), and NUTTER MCCLENNEN & FISH, LLP
, having an address of World Trade Center West, 155 Seaport
Boulevard, Boston, Massachusetts 02210 (“Escrow
Agent”).
Background
Landlord and Tenant have
entered into a Lease, dated as of March 16, 2005, pertaining
to the premises containing approximately 14,493 rentable square
feet located on the fourth floor of the buildings known and
numbered as 155 Federal Street and 10 High Street in Boston,
Massachusetts (“Lease”).
Tenant’s obligations
under the Lease are partially secured by a Letter of Credit, dated
March 28, 2005, issued by Brown Brothers, naming Boston
Federal Associates (“BFA”), the sole beneficiary of KNH
Realty Trust, as the beneficiary of the Letter of Credit, a copy of
which is attached to this Agreement as Exhibit A
(“Letter of Credit”). Tenant’s obligations to
Brown Brothers are secured by certain cash collateral held by Brown
Brothers and a UCC-1 Financing Statement on the Personal Property
(defined in Section 5 of this Agreement).
Landlord and Tenant have
agreed to an early termination of the Lease upon the terms and
conditions hereinafter set forth.
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as
follows:
1. Termination . The
Lease shall be and is hereby terminated and cancelled and the term
thereof is brought to an end effective as of July 31, 2007
(“Termination Date”) with the same force and effect as
if such date were the date set for expiration of the term, subject
to the following conditions:
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i. |
Landlord’s receipt of the funds described in Sections 2
and 3 of this Agreement; |
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ii. |
Landlord’s receipt of the Personal Property described in
Section 5 of this Agreement; and |
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iii. |
As of the Termination Date, there shall be no Event of Default
or any event that has occurred that with the passage of time, or
giving of notice, or both, would constitute an Event of Default
under the Lease. |
2. Rent . On or before
the Termination Date, Tenant shall pay the Fixed Rent in the amount
of $32,609.25, plus all additional rent for Real Estate Taxes and
Operating Costs in the amount of $332.00, due through
August 31, 2007.
3. Letter of Credit .
Escrow Agent hereby acknowledges receipt of the original Letter of
Credit in escrow. Landlord, BFA and Tenant hereby direct Brown
Brothers to: (i) send to Escrow Agent an original UCC-3
Termination Statement pertaining to Brown Brothers’ security
interest on the Personal Property (defined in Section 5 of
this Agreement); and (ii) release $300,000 from its cash
collateral and to wire such amount to Escrow Agent, in accordance
with the following wiring instructions, to be held in escrow
subject to the terms of this Agreement (“Escrowed
Funds”):
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Bank
Name: |
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Citizens Bank of
Massachusetts
One Citizens Drive
Riverside, RI 02915-9961
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Account
Name: |
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Nutter, McClennen & Fish,
LLP
Real Estate Special Account
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Account
#: |
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113176-791-5 |
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ABA
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011-500-120 |
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Reference: |
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Farley
White |
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Landlord, BFA and Tenant
acknowledge and agree that upon Escrow Agent’s receipt of the
Escrowed Funds, Escrow Agent may release the Letter of Credit from
escrow and deliver the original Letter of Credit to Brown Brothers,
whereupon the Letter of Credit may be canceled by Brown Brothers.
When Escrow Agent is unconditionally prepared to deliver the
original Letter of Credit to Brown Brothers, Escrow Agent may
release the Escrowed Funds to Landlord and cause the UCC-3
Termination Statement to be filed with the Massachusetts Secretary
of the Commonwealth.
4. Option to Extend; Right
of First Offer . Tenant shall have no option to extend the term
and no right of first offer to lease any space within the
Building.
5. Bill of Sale .
Tenant hereby conveys to Landlord all of Tenant’s right,
title and interest in and to all furniture, fixtures and equipment
located in the Premises, including the telephone system, but
specifically excluding all books and records, computers and the
leased equipment (collectively, the “Personal
Property”).
Tenant warrants and
represents to Landlord that, after giving effect to the provisions
of this Agreement and the termination of Brown Brothers’
security interest in the Personal Property, title to the Personal
Property is free and clear of any lien, claim or encumbrance
created by, through or under Tenant, but otherwise Tenant has not
made and does not make any express or implied warranty or
representation of any kind whatsoever with respect to the Personal
Property,
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including but not limited to: title;
merchantability of the Personal Property or its fitness for any
particular purpose; the design or condition of the Personal
Property; the quality or capacity of the Personal Property;
workmanship or compliance of the Personal Property with the
requirements of any law, rule, specification or contract pertaining
thereto; or patent infringement or latent defects. Landlord accepts
the Personal Property on an “as is, where is”
basis.
6. Yield Up .
Effective as of the Termination Date, Tenant remises, releases,
quitclaims and surrenders to Landlord, its successors and assigns,
all of Tenant’s rights in and to the Premises. Tenant shall
vacate the Premises on or before the Termination Date and shall
leave the Premises in the yield-up condition required under the
Lease on the expiration of the term, including, without limitation,
leaving the same broom clean, free of personal effects and in good
order, repair and condition, and removing all of its property,
except for the Personal Property described in Section 5 of
this Agreement, from the Premises.
7. Mutual Releases .
Effective as of the Termination Date, each party hereby releases,
discharges and acquits the other parties, and the other
parties’ members, partners, affiliates, subsidiaries,
officers, directors, agents, attorneys, employees, successors and
assigns from any and all debts, claims, liabilities, demands,
damages, actions and causes of actions of any kind and all kinds
whatsoever, whether known or unknown, suspected or unsuspected,
that such party has or could have against the other as of the date
hereof, arising out of or relating in any way to the Lease and the
occupancy or use of the Premises by Tenant first arising from and
after the Termination Date, except for (i) any obligations of
Tenant that are expressly stated to survive expiration or
termination of the Lease under the terms and provisions of the
Lease; and (ii) each party’s obligations under this
Agreement.
8. Voluntary Agreement
. The parties have read this Agreement, and on the advice of
counsel they have freely and voluntarily entered into this
Agreement.
9. Entire Agreement .
This Agreement constitutes the entire agreement of the parties
regarding the subject matter hereof and supersedes all prior
dealings between them with respect to such subject matter and may
not be amended except by an instrument in writing signed by all the
parties.
10. Successors and
Assigns . This document shall become effective and binding only
upon the execution and delivery of this Agreement by Landlord, BFA,
Ten
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