EXHIBIT 10.1
LEASE
by and between
NDNE 9/90 Corporate Center LLC
or assignee
as Landlord and
AQUILA BIOPHARMACEUTICALS, INC.,
as Tenant
Dated as of September 19, 1997
with an effective date as of the
"Escrow Release Date"
(as said term is defined in the Lease)
TABLE OF CONTENTS
SECTION 1 - Reference Data
1
Section 1.1 Reference Information .................
Section 1.2 Exhibits ..............................
SECTION 2 - Premises and Term 7
Section 2.1 Premises ..............................
Section 2.2 Term ..................................
Section 2.3 Appurtenant Rights and Reservations....
SECTION 3 - Commencement Date; Improvements 8
Section 3.1 Commencement Date .....................
Section 3.2 Construction of Building ..............
Section 3.3 Tenant Improvements; Tenant Plans......
and Specifications.....................
Section 3.4 Tenant Work ...........................
Section 3.5 General Provisions Applicable to.......
Tenant Work and Landlord Work.........
Section 3.6 Performance of Tenant's Work...........
Section 3.7 Delays.................................
Section 3.8 General Provisions Applicable to ......
Construction..........................
Section 3.9 Construction Representations...........
Section 3.10 Changes in Building or Lot.............
SECTION 4 - Rent 16
Section 4.1 The Annual Rent .......................
SECTION 5 - Operating Cost Escalation 16
Section 5.1 Operating Cost Escalation .............
Section 5.2 Estimated Operating Cost...............
Escalation Payments ...................
SECTION 6 - Real Estate Tax Escalation 18
Section 6.1 Real Estate Tax Escalation ............
Section 6.2 Estimated Real Estate Tax Escalation...
Payments ..............................
Section 6.3 Assessment of Property ................
SECTION 7 - Insurance
19
Section 7.1 Tenant's Insurance ....................
Section 7.2 Requirements Applicable to Insurance...
Policies........................... ..
Section 7.3 Waiver of Subrogation .................
SECTION 8 - Landlord's Covenants
21
Section 8.1 Quiet Enjoyment .......................
Section 8.2 Maintenance and Repair ................
Section 8.3 Electricity, Water and Gas..............
Section 8.4 HVAC. ..................................
Section 8.5 Cleaning ...............................
Section 8.6 Interruptions ..........................
Section 8.7 Representations.........................
Section 8.8 Estoppel Certificates..................
SECTION 9 - Tenant's Covenants
24
Section 9.1 Use ...................................
Section 9.2 Repair and Maintenance ...............
Section 9.3 Compliance with Law and Insurance......
Requirements ..........................
Section 9.4 Tenant's Alterations...................
Section 9.5 Indemnity .............................
Section 9.6 Landlord's Right to Enter .............
Section 9.7 Personal Property at Tenant's Risk ....
Section 9.8 Yield Up ..............................
Section 9.9 Estoppel Certificate ..................
Section 9.10 Landlord's Expenses Re Consents .......
Section 9.11 Rules and Regulations .................
Section 9.12 Holding Over ..........................
Section 9.13 Assignment and Subletting .............
Section 9.14 Overloading and Nuisance ..............
SECTION 10 - Casualty or Taking
29
Section 10.1 Termination ...........................
Section 10.2 Restoration ...........................
Section 10.3 Award .................................
SECTION 11 - Default
30
Section 11.1 Events of Default .....................
Section 11.2 Remedies ..............................
Section 11.3 Remedies Cumulative ...................
Section 11.4 Landlord's Right to Cure Defaults .....
Section 11.5 Effect of Waivers of Default ..........
Section 11.6 No Accord and Satisfaction ............
Section 11.7 Interest on Overdue Sums ..............
Section 11.8 Costs and Expenses ...................
SECTION 12 - Mortgages 32
Section 12.1 Rights of Mortgage Holders ............
Section 12.2 Lease Subordinate......................
SECTION 13 - Miscellaneous Provisions 34
Section 13.1 Notices from One Party to the Other ...
Section 13.2 Lease Not to be Recorded;..............
Notice of Lease .......................
Section 13.3 Bind and Inure; Limitation of..........
Landlord's Liability ..................
Section 13.4 Acts of God ...........................
Section 13.5 Landlord's Default ....................
Section 13.6 Brokerage .............................
Section 13.7 Miscellaneous .........................
Section 13.8 Security Deposit ......................
Section 13.9 Park Common Expenses...................
Section 13.10 Leasehold Parking Area.................
Section 13.11 Hazardous Materials....................
Section 13.12 Landlord's Holdover Contribution.......
LEASE
SECTION 1
Reference Data
Section 1.1. Reference Information. Reference in this Lease to
any of the following shall have the meaning set forth below:
Date of this Lease: As of September 19, 1997 with an effective
date as of the "Escrow Release Date" (as said term is defined in
the Lease)
Premises: That portion (shown as outlined on Exhibit A
attached hereto) of the Building on the Lot known
as Lot 8A and to be numbered 000 Xxxxxxxx
Xxxxxxxxx in Framingham, Massachusetts, consisting
of approximately 35,000 rentable square feet on
the first, second and third floors of the
Building.
Landlord: NDNE 9/90 Corporate Center LLC or assignee
Address of Landlord: c/o National Development of New England
0000 Xxxxxxxxxx Xxxxxx
Xxxxxx Xxxxx Xxxxx, Xxxxxxxxxxxxx 00000
Tenant: Aquila Biopharmaceuticals, Inc.
Address of Tenant: 000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Landlord's Construction Representative: Xxxx X. Paris
Tenant's Construction Representative: Xxxxxx X. Xxxxx
Additional Rent: Any sum or payment designated under this Lease
as constituting "Additional Rent" including, without limitation,
payments by Tenant on account of (i) Operating Cost Escalation
under Section 5, (ii) Real Estate Tax Escalation under Section 6
and (iii) Park Common Expenses under Section 13.9.
Affiliate: Any corporation or business entity controlled by,
controlling or under common control with Tenant. For this
purpose, "control" shall mean direct or indirect beneficial
ownership of 50% or more of the voting stock of, or a 50% or
greater interest in the income of such corporation or other
business entity or such other relationship as in fact constitutes
actual control.
Annual Base Operating Costs: $ 495,600.00 ($4.13 x Total Number
of Rentable Square Feet in the Building) (which excludes any
costs and expenses associated with cleaning services in the
Premises which shall be provided by Tenant at Tenant's sole cost
and expense).
Annual Base Real Estate Taxes: $ 300,000.00 ($2.50 x Total
Number of Rentable Square Feet in the Building)
Annual Fixed Rent (includes Annual Base Operating Costs and
Annual Base Real Estate Taxes):
Lease Years 1 - 4 inclusive: $748,300.00 per annum
Lease Years 5 - 8 inclusive: $800,800.00 per annum
Lease Years 9 - 12 inclusive: $853,300.00 per annum
As used above, the term "Year" or "Lease Year" shall mean the one
year period ending on the first anniversary of the Term
Commencement Date and each period of like duration thereafter.
Annual Rent: Annual Fixed Rent, Additional Rent and any other
charge payable in accordance with the terms and provisions of
this Lease.
Anticipated Term Commencement Date: July 1, 1998.
Base Building: The building erected or to be erected on the Lot
by Landlord in accordance with Exhibit D attached hereto at such
time as Landlord substantially completes "Landlord's Building
Construction Work", as defined in Section 3.2.
Broker: Fallon, Xxxxx & X'Xxxxxx, Inc.
Building: The building erected or to be erected on the Lot by
Landlord and all alterations and additions thereto and
replacements thereof as described in Exhibit D.
Business Day: All days except Sundays and legal holidays.
Business Hours: 7:00 a.m. to 6:00 p.m. on all Business Days
except Saturdays and Sundays from 8:00 a.m. to 1:00 p.m.
Commencement Date: As defined in Section 3.1.
Enclosed Building: When the building has reached a state of
construction such that it is enclosed (sufficient to prevent
water damage from the weather) and has temporary electrical power
so as to provide Tenant with access to commence Tenant's Work on
Tenant's Access Date.
Escrow Agreement: That certain Escrow Agreement dated as of even
date herewith by and among Landlord, Tenant and Chicago Title
Insurance Company.
Escrow Release Date: That certain date on which all of the
"Release Conditions" (as said term is defined in the Escrow
Agreement) are completely satisfied and the Lease is released
from escrow in accordance with the Escrow Agreement.
Force Majeure: Collectively and individually, strike or other
labor trouble, fire or other casualty, governmental preemption of
priorities or other controls in connection with a national or
other public emergency or shortages of, or inability to obtain,
fuel, supplies or labor resulting therefrom, or acts of God, or
any other cause, whether similar or dissimilar, beyond Landlord's
reasonable control. Force Majeure does not include those things
that Landlord can cure by the payment of money.
Force Majeure Date: The last day of the period of time
commencing on the Outside Date and terminating at the end of the
Force Majeure Period.
Force Majeure Extension: The aggregate period of time not to
exceed sixty (60) days attributable to delays caused by Force
Majeure which shall only be applicable to Landlord's Holdover
Contribution in Section 13.12 of this Lease.
Force Majeure Period: The aggregate period of time attributable
to delays caused by Force Majeure, but in no event to exceed in
the aggregate six (6) months.
Ground Lease: The Indenture of Lease dated as of August 15,
1980, between the Inhabitants of The Town of Framingham (the
"Town"), as landlord, and The First National Bank of Boston ((the
"Bank of Boston"), as tenant, notice of which is recorded with
the Middlesex South District Registry of Deeds (the "Registry")
in Book 14036, Page 282 (the "Original Ground Lease"). The
interest of the Bank of Boston as tenant under the Original
Ground Lease was assigned to 9/90 Crossing Associates Limited
Partnership ("9/90") pursuant to that certain Lease Assignment
dated as of July 29, 1987, and recorded with the Registry in Book
18428, Page 050. The interest of "9/90" as tenant under the
Original Ground Lease was further assigned by "9/90" to Rose
Holding, Inc. ("Rose") pursuant to that certain Lease Assignment
dated as of June 10, 1994, recorded with the Registry in Book
24620, Page 48. The Original Ground Lease was amended by
Amendment to Lease dated the ______ day of August, 1996 by and
between the Town and Rose. All references herein to the Original
Ground Lease shall mean the Original Ground Lease as so assigned
and amended. The interest of Rose as tenant under the Ground
Lease and under the Original Ground Lease insofar as it relates
to Lot B-1 was assigned to NDNE 9/90 Crossing Limited Liability
Company (the "LLC")by Assignment and Assumption of Lease and
Collateral Agreement with respect to a Portion of the Leasehold
Premises dated September 30, 1996 from Rose to the LLC (the
"First Rose Assignment"). The interest of Rose as tenant under
the Ground Lease and under the Original Ground Lease insofar as
it relates to the Leasehold Parking Area will be assigned to the
Landlord hereunder by Assignment and Assumption of Leasehold
Interest with respect to a Portion of the Leasehold Premises from
Rose to Landlord (the "Second Rose Assignment"). The Original
Ground Lease was affected by that certain Consent to Assignment,
Estoppel Certificate and Agreement of Landlord Respecting Ground
Lease and Landfill Agreement dated October 7, 1996 and recorded
in the Registry in Book 26738, Page 303. All references in this
Lease to the Ground Lease shall mean the Original Ground Lease,
as amended from time to time, as assigned to the LLC by the First
Rose Assignment, as assigned to Landlord by the Second Rose
Assignment and any future amendments and any future assignments
and, for purposes hereof, the premises thereunder shall be deemed
to include only the Leasehold Parking Area.
Landfill Lot: The lot or parcel of land on which the Leasehold
Parking Area is located as more particularly set forth in Exhibit
I attached hereto.
Landlord's Holdover Contribution: The difference between the
monthly base rent Tenant will be paying under "Tenant's Existing
Lease" (as hereinafter defined) on the Anticipated Term
Commencement Date and (ii) the monthly rent that Tenant would be
paying under this Lease based on an annual base rent of $14.75
per square foot multiplied by the Premises' Square Footage;
provided, however, in no event shall the Landlord's Holdover
Contribution exceed $42,500.00 per month.
Leasehold Parking Area: The areas designated as the Leasehold
Parking Area on Exhibit C attached hereto and any alteration or
replacement (with any such replacement being in close proximity
to the Building) thereof designated by Landlord in writing to
Tenant.
Lot or Lots: The lot or parcel of land on which the Building is
or will be located as more particularly set forth in Exhibit B
attached hereto.
Lot's Allocable Share: As defined in Section 13.9.
Measurement Method: The Modified New York BOMA Measurement
Method 1980, Reaffirmed 1989.
Outside Date: The date which is twelve (12) months from the date
that the Town of Framingham issues a permit for construction of
the Building, including a foundation permit.
Park: The term "Park" shall mean the land described in Exhibits
A-1 and A-2 of the Park Covenants together with other land
hereafter added thereto under the Park Covenants and together
with the buildings, structures and other improvements as may,
from time to time, be constructed thereon, and all of which are
referred to in the Park Covenants as "9/90 Crossing".
Park Common Expenses: As defined in Section 13.9.
Park Common Property: As defined in Section 13.9.
Park Covenants: The Covenants, Restrictions, Development
Standards and Easements, attached hereto as Exhibit L together
with any amendments thereto as are permitted thereunder.
Permitted Uses: General Office, Research and Development and
Manufacturing.
Premises' Square Footage: Approximately 35,000 rentable square
feet (to be confirmed by Landlord and Tenant) as determined by
the Measurement Method, except as follows: (i) measurements will
be taken to the inside face of glass on exterior walls, even if
the glass is not the dominant portion of the exterior wall, (ii)
measurements to common areas, halls, etc. will be to the center
line of the partition, (iii) common areas such as the first floor
lobby, elevator lobbies, cafeteria, locker room/shower
facilities, common corridors, etc. will be included in rentable
area, and (iv) any vertical penetrations dedicated solely to
Tenant's use (i.e. in excess of vertical penetrations required to
service a standard office building) shall be included in usable
areas provided, however, any vertical penetrations located on the
upper two floors of the Building and related to the Premises
shall not be included in the calculation of rentable square
footage. After Tenant delivers to Landlord the Tenant's Plans
and Specifications, Landlord and Tenant shall remeasure the
Premises. If the Premises' Square Footage increases or decreases
based upon the measurement referred to in the preceding sentence,
then Landlord and Tenant shall enter into an amendment to this
Lease for the purpose of restating the rentable square feet of
the Premises, the Annual Fixed Rent, the Premises' Square
Footage, the Tenant's Proportionate Share and attaching Exhibit A
- Plan of Premises and Exhibit J - Plan of First Offer Space.
Property: The Building (including the Premises), the Lot and the
Leasehold Parking Area.
Public Liability Insurance Limit:
Bodily Injury Combined single limit of
and Property Damage $2,000,000, or greater amount as
reasonably required by Landlord
from time to time.
Reciprocal Easement Agreement: As defined in Section 5.1.
Rentable Square Feet in the Building: Approximately 120,000
rentable square feet as determined by using the Measurement
Method, except as follows: (i) measurements will be taken to the
inside face of glass on exterior walls, even if the glass is not
the dominant portion of the exterior walls, (ii) measurements to
common areas, halls, etc. will be to the center line of the
partition and (iii) common areas such as the first floor lobby,
elevator lobbies, cafeteria, locker room/shower facilities,
common corridors, etc. will be included in rentable area.
Security Deposit: $750,000.00 (subject to the terms and
provisions of Section 13.8 hereof).
Tenant's Access Date: A date which is the later of (i) March 1,
1998 or (ii) the date on which Landlord allows Tenant to access
the Enclosed Building for purposes of commencing Tenant's Work.
Tenant's Existing Lease: A lease between Cambridge Bioscience
Corp. and Worcester Business Development Corporation dated
January 1, 1987, as amended.
Tenant's Chemicals: The list of chemicals more particularly
identified as Tenant's Chemicals in Exhibit O attached hereto, as
the same may be modified, amended and updated from time to time.
Tenant's Plan Delivery Date: A date which is the later of (a)
thirty (30) days after the date of this Lease or (b) the date on
which Tenant delivers to Landlord the Tenant's Plans and
Specifications.
Tenant's Proportionate Share: Twenty Nine and Seventeen
Hundredths (29.17%) Percent.
Tenant's Removable Property: All articles of personal property
and all business fixtures, machinery, equipment and furniture
owned or installed by Tenant and more particularly described as
Tenant's
Removable Property in Exhibit H attached hereto shall remain the
property of Tenant and may be removed by Tenant at any time prior
to the expiration of this Lease provided that Tenant, at its sole
cost and expense, shall repair any damage to the Building caused
by such removal.
Tenant's Subleasing Profit: The first $5.00 per square foot of
any rent, income or profit derived from any sublease of any
portion of the Premises subleased by Tenant in accordance with
the provisions of Section 9.13 of this Lease in excess of the
Annual Fixed Rent ("Tenant's Base Subleasing Profit") plus fifty
(50%) percent of any rent, income or profit derived from any such
sublease in excess of Tenant's Base Subleasing Profit.
Tenant's Work: As defined in Section 3.4.
Title Exceptions: The matters set forth on Exhibit M attached
hereto and any other rights, easements, encumbrances (excluding
any mortgage with the exception of any mortgage contemplated in
Section 12 of this Lease provided that Tenant receives a non-
disturbance agreement in accordance with Section 12.2 of this
Lease) and reservations which shall not materially interfere with
Tenant's rights under this Lease.
Yield Up Equipment: All of the equipment installed by Tenant and
more particularly described as Yield Up Equipment in Exhibit N
attached hereto shall remain the property of Landlord at the
expiration of the Term or earlier termination of this Lease.
Section 1.2. Exhibits. The following Exhibits are attached to and
incorporated in this Lease:
Exhibit A: Plan of Premises
Exhibit B: Lot
Exhibit C: Leasehold Parking Area
Exhibit D: Building Construction Work
Exhibit E: Tenant's Plans and Specifications
Exhibit F: Rules and Regulations
Exhibit G: Option to Extend, Right of First Offer
Exhibit H: Tenant's Removable Property
Exhibit I: Landfill Lot
Exhibit J: Plan of First Offer Space
Exhibit K: Cleaning Specifications
Exhibit L: Park Covenants (Reciprocal Easement Agreement)
Exhibit M: Title Exceptions
Exhibit N: Yield Up Equipment
Exhibit O: Tenant's Chemicals
SECTION 2
Premises and Term
Section 2.1. Premises. Landlord hereby leases and demises
the Premises to Tenant and Tenant hereby leases the Premises from
Landlord subject to the Title Exceptions and subject to the terms
and provisions of this Lease.
Section 2.2. Term. TO HAVE AND TO HOLD for a term beginning
on the Commencement Date and ending on the close of the day
immediately preceding the twelfth anniversary of the Commencement
Date (the "Term") unless sooner terminated as hereinafter
provided.
Section 2.3. Appurtenant Rights and Reservations.
(a) Tenant shall have, as appurtenant to the Premises, the
non-exclusive right to use, and permit its invitees to use in
common with others, public or common lobbies, hallways,
stairways, elevators and common walkways necessary for access to
the Building, the common toilets, corridors and elevator lobby of
such floor; but such rights shall always be subject to the rules
and regulations from time to time established by Landlord
pursuant to this Lease and to the right of Landlord to reasonably
designate and change from time to time areas and facilities so to
be used provided such changes do not materially affect Tenant's
access to or use of the Premises. Tenant and its employees shall
also have the non-exclusive right to use, in common with others
entitled thereto, such other common areas and facilities in or
appurtenant to the Building as Landlord may from time to time
designate and provide. Subject to the Title Exceptions and
subject to the terms and provisions of this Lease, Landlord shall
provide Tenant with the non-exclusive right to use, in common
with others entitled thereto, that certain number of parking
spaces on the Leasehold Parking Area equal to four (4) spaces per
each 1,000 square feet of the Premises' Square Footage.
(b) Excepted and excluded from the Premises are exterior
faces of exterior walls, the common stairways and stairwells,
elevators and elevator shafts, fan rooms, mechanical, freight
elevator vestibules and pipes, ducts, conduits, wires and
appurtenant fixtures serving exclusively or in common with other
parts of the Building, but included in the Premises are all entry
doors to the Premises and all special installations of Tenant,
such as interior stairs, special flues and special air
conditioning facilities. Landlord reserves the right from time
to time, without unreasonable interference with Tenant's use:
(a) to install, use, maintain, repair, replace and relocate for
service to the Premises and other parts of the Building, or
either, pipes, ducts, conduits, shafts, wires and appurtenant
fixtures, wherever located in the Premises or Building, and (b)
to alter or relocate any other common facility, provided that
substitutions are substantially equivalent or better and (c) to
maintain, repair, alter and replace (with any such replacement
being in close proximity to the Building) the Leasehold Parking
Area and the parking spaces located thereon. Landlord reserves
the exclusive use of all fan rooms, electric and telephone
closets, janitor closets, freight elevator vestibules, pipes,
ducts, conduits, wires and appurtenant fixtures located within
the Premises which serve exclusively or in common other parts of
the Building.
(c) Notwithstanding anything to the contrary contained in
this Lease, the Premises shall be measured using the Measurement
Method, except as follows: (i) measurements will be taken to the
inside face of glass on exterior walls, even if the glass is not
the dominant portion of the exterior wall, (ii) measurements to
common areas, halls, etc. will be to the center line of the
partition, (iii) common areas such as the first floor lobby,
elevator lobbies, cafeteria, locker room/shower facilities,
common corridors, etc. will be included in rentable area, and
(iv) any vertical penetrations dedicated solely to Tenant's use
(i.e. in excess of vertical penetrations required to service a
standard office building) shall be included in usable areas
provided, however, any vertical penetrations located on the upper
two floors of the Building and related to the Premises shall not
be included in the calculation of rentable square footage.
SECTION 3
Commencement Date; Improvements
Section 3.1 Commencement Date. The Commencement Date shall
be that date on which (a) the Base Building is substantially
complete provided that the Town of Framingham has issued a
Temporary Certificate of Occupancy for the Base Building and
Landlord has completed each item of Landlord's Building
Construction Work in accordance with Exhibit D (irrespective of
whether Tenant has completed Tenant's Work or the Town of
Framingham has issued a Certificate of Occupancy relating to the
Premises) and (b) one hundred twenty (120) days have elapsed
since Tenant's Access Date (unless Tenant commences occupancy of
any portion of the Premises for the Permitted Uses prior to the
expiration of said one hundred twenty (120) day period, then the
date that Tenant commences occupancy shall be the applicable date
under this clause (b)). If Tenant commences occupancy of any
portion of the Premises prior to the expiration of the one
hundred and twenty (120) day period referred to in the preceding
sentence, then Tenant shall commence paying Annual Rent for that
portion of the Premises in which Tenant takes occupancy;
provided, however, upon the expiration of said one hundred and
twenty (120) day period, Tenant shall commence paying Annual Rent
for the entire Premises. Each of the parties hereto agrees to,
upon demand of the other, execute a declaration expressing the
Commencement Date as soon as the Commencement Date has been
determined.
Section 3.2 Construction of Building.
(a) Landlord, at its expense, shall diligently construct
the Building substantially in accordance with Exhibit D (as the
same may be amended in connection with the permit approval
process for the Premises provided that no such amendment
affecting the Premises shall be made without the approval of
Tenant, which approval shall not be unreasonably withheld or
delayed) (the "Landlord's Building Construction Work") and all
laws, codes, ordinances and other applicable governmental
requirements. Landlord's Building Construction Work shall be
done in a good and workmanlike manner using first quality
materials and shall be accomplished in accordance with the plans
and specifications set forth in Exhibit D. Tenant shall respond
promptly to all communications from Landlord and shall cooperate
with Landlord throughout the construction process.
Notwithstanding anything contained in Exhibit D to the contrary,
in no event shall Landlord be obligated to perform (or pay for
the cost of) the moving or installation of any of Tenant's
equipment. Tenant shall pay to Landlord, within ten (10) days of
billing therefor, any costs of construction resulting from
changes in Exhibit D requested in writing by Tenant, it being
understood that such costs shall be equal to the aggregate of (a)
the "Cost of the Work", as defined in American Institute of
Architects Document A111 (1987 Edition), and (b) Landlord's
contractor's overhead and profit in the total amount equal to
eight percent (8%) of such cost.
(b) Landlord represents, but does not warrant, that on the
Commencement Date, the Building will be constructed in a good and
workmanlike manner free from material defects and in compliance
with all federal, state and local laws, ordinances, rules,
regulations, orders and permits, including zoning and subdivision
relating to the Building and the Premises and with any
restriction, covenant or agreement contained in the Title
Exceptions. To the best of Landlord's knowledge, no provision
contained in any Title Exception interferes with the existing or
contemplated use of the Premises.
(c) Landlord shall procure all necessary permits before
undertaking Landlord's Building Construction Work; do all of such
work in a good and workmanlike manner, employing materials of
first quality and complying with all governmental requirements.
Landlord shall cause contractors employed by Landlord to carry
Workmen's Compensation Insurance in accordance with statutory
requirements and Comprehensive Public Liability Insurance
covering such contractors on or about the Building.
Section 3.3 Tenant Improvements; Tenant's Plans and
Specifications.
(a) All work, construction and improvements to be performed
in or for the Premises in order to prepare same for use and
occupancy by Tenant set forth in Exhibit E attached hereto shall
be provided and installed by Tenant at Tenant's sole cost and
expense. Prior to commencement of any work by Tenant, Tenant
shall deliver to Landlord on the Tenant's Plan Delivery Date a
detailed floor plan layout together with construction drawings,
working drawings and written instructions and specifications
(herein called "Tenant's Plans and Specifications") in accordance
with and containing at least the information detailed in Exhibit
E and reflecting the alterations, work partitions and
improvements desired to be performed and installed by Tenant in
the Premises. Landlord agrees to cooperate with Tenant in the
production of those portions of Tenant's Plans and Specifications
constituting the working drawings and written instructions.
Landlord shall not be responsible for any cost in connection with
preparing Tenant's Plans and Specifications.
Section 3.4 Tenant's Work.
(a) Landlord's approval, which approval shall not be
unreasonably withheld or delayed, of Tenant's Plans and
Specifications shall, in no event, be deemed to create any
obligation on the part of Landlord to do any work or make any
installations in or about the Premises or to authorize Tenant to
make any further additions, improvements or alterations to the
Premises.
(b) Tenant shall perform, at its sole cost and expense, all
of the work (the "Tenant's Work") shown on Tenant's Plans and
Specifications substantially in accordance with Tenant's Plans
and Specifications. Any changes to Tenant's Plans and
Specifications (or any variations in Tenant's Work from the
Tenant's Plans and Specifications) shall be subject to the
approval of Landlord which approval will not be unreasonably
withheld or delayed. Any Tenant Plan provided to Landlord for
approval under the provisions of this Lease shall be deemed
approved unless Landlord shall, within ten (10) days of the
submission of said plan, notify Tenant of the disapproval of such
plan and the reason(s) for such disapproval. This Subsection (b)
and Section 9.4 shall apply before and during the Term of this
Lease. All of the Tenant's Work and all alterations, additions
and installation of furnishings shall be coordinated with any
work being performed by Landlord in the Building and in such
manner as to maintain harmonious labor relations and not damage
the Property or interfere with Building construction or operation
and shall be performed by Tenant's general contractor, which
contractor and all subcontractors shall be named on a written
list submitted to Landlord and shall be subject to the written
approval of Landlord, which approval shall not be unreasonably
withheld or delayed and any such approval shall be deemed given
unless Landlord shall within five (5) Business Days of Landlord's
receipt of Tenant's submission of the name of such contractor or
subcontractor notify Tenant of Landlord's disapproval of such
party and the reasons for such disapproval. Tenant shall have
the right to use any contractor or subcontractor appearing on the
list submitted to and approved by Landlord. Tenant acknowledges
and agrees that Xxxxxxxx Construction shall have the right to bid
on all of Tenant's Work, including, without limitation, the
installation of the roof top HVAC system. Tenant hereby assumes
all responsibility in connection with Tenant's Work. Tenant
shall be responsible for any labor difficulties or delays in
Tenant's Work and the Commencement Date will not be delayed as a
result of delays in work. Tenant, before its work is started,
shall: secure all licenses, approvals and permits necessary
therefor and deliver copies thereof to Landlord; deliver to
Landlord a statement of the names of all its contractors and
subcontractors and the estimated cost of all labor and material
to be furnished by them; and cause each contractor and
subcontractor to carry workmen's compensation insurance in
statutory amounts covering all the contractor's and
subcontractor's employees and comprehensive public liability
insurance and property damage insurance with such limits as
Landlord may reasonably require but in no event less than a
$2,000,000.00 combined single limit (all such insurance to be
written in companies approved by Landlord, which approval will
not be unreasonably withheld or delayed, and insuring Landlord
and Tenant as well as the contractors), and to deliver to
Landlord certificates of all such insurance. Tenant agrees to
pay promptly when due the entire cost of any work done on the
Premises by Tenant, its agents, employees, or independent
contractors, and not to cause or permit any liens for labor or
materials performed or furnished in connection therewith to
attach to the Property and immediately to discharge any such
liens which may so attach and, at the request of Landlord to
deliver to Landlord security satisfactory to Landlord against
liens arising out of the furnishing of such labor and material,
including, without limitation, evidence of bonding over said
liens with performance, payment and xxxx xxxxx in favor of
Landlord and Tenant. Upon completion of any work done on the
Premises by Tenant, its agents, employees, or independent
contractors, Tenant shall promptly deliver to Landlord original
lien releases and waivers executed by each contractor,
subcontractor, supplier, materialmen, architect, engineer or
other party which furnished labor, materials or other services in
connection with such work and pursuant to which all liens, claims
and other rights of such party with respect to labor, material or
services furnished in connection with such work are
unconditionally released and waived.
(c) Prior to commencing occupancy, Tenant shall, at its
sole expense, procure a Certificate of Occupancy for its Premises
and any other permit or approval required by the Town of
Framingham or the Commonwealth of Massachusetts for its use and
occupancy of the Premises and shall deliver copies thereof to
Landlord. Entry by Tenant or its agents or contractors for the
purpose of performing Tenant's Work and/or decorations and/or for
installation of equipment and furnishings in the Premises shall
be permitted by Landlord during normal business hours on Business
Days. Commencing on Tenant's Access Date, Tenant shall have such
access as is reasonably necessary to allow Tenant to perform
Tenant's Work. Tenant, from and after the date of such entry,
shall be bound prior to the Commencement Date by the provisions
contained in this Lease (except the obligation to pay Annual
Rent, Operating Cost Escalations and Real Estate Tax Escalations)
notwithstanding that such entry and Tenant's Work will occur
prior to the Commencement Date of this Lease. In no event shall
the Commencement Date of this Lease be delayed by reason of
Tenant's failure to complete the work described in Tenant's Plans
and Specifications prior to the Commencement Date as it is
defined in Section 3.1 hereof unless such failure is the result
of Landlord's failure to fulfill its obligations hereunder. All
deliveries of equipment, furnishings, fixtures and construction
materials and equipment (collectively, "Work Materials") to (and
all removals of such Work Materials from) the Premises in
connection with Tenant's Work shall be performed in a manner so
as to minimize harm to the Building and interference with other
tenants of the Property. Tenant shall take such protective
measures as Landlord may require in order to protect the Building
or any part thereof from injury or damage due to, or in
connection with, Tenant's Work. Tenant shall not store any
materials or equipment on any sidewalks or streets adjacent to
the Building caused by Tenant's Work. Tenant shall remove all
debris, trash and construction rubbish from the Premises and the
Building. Tenant shall keep all areas of the Building and all
sidewalk and street areas adjacent to the Building free of trash
and debris from Tenant's Work and shall, upon completion of its
work, clean all areas of the Building, sidewalks and streets
affected thereby. Tenant shall not damage, deface or injure the
Building or any part thereof in connection with the Tenant's Work
and shall promptly reimburse Landlord for the cost of repairing
and/or replacing any damage, defacement or injury to the Building
caused by Tenant, its employees, workmen, contractors,
subcontractors, materialmen and all other parties who are
involved in performing all or any part of Tenant's Work. Tenant
shall comply with all laws, orders, rules, regulations and
demands of the Town of Framingham in loading and unloading and
delivering and removing materials relating to Tenant's Work and
Tenant's Removable Property to and from the Premises.
Section 3.5 General Provisions Applicable To Tenant Work
and Landlord Work.
All construction work required or permitted by this Lease to
be performed by either Landlord or Tenant shall be done in a good
and workmanlike manner and in compliance with all applicable
provisions of this Lease and all laws and lawful ordinances,
regulations and orders of governmental authority and insurers of
the Property, including, without limitation, the requirements of
the Americans with Disabilities Act of 1990, as amended.
Section 3.6 Performance Of Tenant's Work.
(a) Landlord shall not unreasonably withhold its consent to
the general contractor selected by Tenant and approved by
Landlord ("Tenant's G.C.") performing Tenant's Work solely as an
accommodation to Tenant. Tenant hereby acknowledges that
Landlord is extremely concerned that the Tenant's Work be
performed in a manner such as to minimize, to the maximum extent
possible, interference with ongoing work in the Building being
performed by Landlord, the use and enjoyment of other space in
the Building by other tenants and the continued and uninterrupted
operation of all structural, mechanical and electrical components
of the Building. Tenant further acknowledges that Landlord is
vitally interested in maintaining the high quality, character and
standards of the Building as a First Class Office/Research and
Development Building and that but for the Tenant's assurances
given below, Landlord would not enter this Lease nor permit
Tenant to perform Tenant's Work using Tenant's G.C. Accordingly,
in order to provide Landlord with the assurances it requires in
that regard and as a material inducement to the Landlord to enter
into this Lease, Tenant hereby covenants and agrees with Landlord
as follows:
In addition to and without limitation of any other term,
covenant, provision or condition contained in this Lease
regarding alterations and improvements to be performed by Tenant,
the Tenant, for itself and for Tenant's G.C. hereby covenants and
agrees with Landlord that Tenant, Tenant's G.C., and all of their
agents, servants and employees shall comply with all directions,
orders, instructions, rules, directives and regulations now or
hereafter implemented or made by Landlord's Construction
Representative, including, without limitation, compliance with
any request or order by Landlord's Construction Representative to
cease and desist from performing any part of Tenant's Work.
Landlord's Construction Representative shall not act in an
arbitrary or capricious manner in exercising its rights under
this clause.
Landlord shall provide Tenant with specific guidelines relating
to Tenant's Work and Tenant shall comply with such guidelines.
All of Tenant's Work shall be coordinated with any work being
performed by Landlord in the Building and in such a manner as to
maintain harmonious labor relations and not damage the Property
or interfere with the Building construction or operation or any
other tenant or occupants of the Building. Tenant shall comply
with the reasonable oral or written directions of the Landlord's
Construction Representative with respect to the covenants of
Tenant contained in the foregoing clause and if not corrected or
completed to the reasonable satisfaction of the Landlord's
Construction Representative within one hour after the giving of
such notice then, Landlord shall have the right, but not the
obligation, in addition to all other rights and remedies afforded
the Landlord pursuant to this Lease, to seek and obtain specific
performance of such covenants by way of injunctive relief or
other equitable remedy.
Tenant shall cause Tenant's G.C. to obtain and maintain (i) a
payment and performance bond and (ii) a xxxx xxxx for the benefit
of Landlord and Tenant in an amount which is equal to the costs
of completing Tenant's Work. Tenant shall provide Landlord's
Construction Representative with a copy of such bond and evidence
of its effectiveness before commencing Tenant's Work.
(b) Tenant's Indemnity with respect to Tenant's Work. To
the maximum extent this Agreement may be made effective according
to law, Tenant agrees to indemnify and save Landlord harmless
from and against any and all loss, cost, penalties, liabilities,
damages and claims arising from any act, omission or negligence
of Tenant or Tenant's G.C. (unless Tenant's G.C. is Xxxxxxxx
Construction) or any contractors or xxxxxxx employed by either of
them ("Tenant's Subs") or their contractors, licensees, agents,
servants or employees arising from the performance of Tenant's
Work caused to any person or to the property of any person, the
Building, or the Property. In addition, Tenant hereby agrees to
indemnify and hold Landlord harmless from and against any and all
loss, cost, or damages incurred by Landlord as a result of any
tenant or occupant of the building claiming that, as a result of
Tenant's Work, the conduct of Tenant's G.C.(unless Tenant's G.C.
is Xxxxxxxx Construction), Tenant's Subs or Tenant's Construction
Representative, such tenant's use and quiet enjoyment of the
Building or its respective premises has been damaged or
destroyed. This indemnity shall, to the maximum extent this
agreement may be made effective according to law, also extend to
all loss, cost, penalties, liability, damage, claims of whatever
nature asserted against the Landlord arising out of the use or
occupancy or passage or travel over or upon, the Property by
Tenant or by any person claiming by, through or under Tenant
including, without limitation, Tenant's G.C. (unless Tenant's
G.C. is Xxxxxxxx Construction) and Tenant's Subs and their
respective agents, employees, contractors and customers or
arising out of any delivery to or service applied to the Premises
or on account of or based on anything whatsoever done in the
Property unless caused by the negligence or willful misconduct of
Landlord or its servants or agents. The indemnity contained in
this Section 3.6(b) shall (i) include indemnity against all cost,
expenses and liabilities incurred in or in connection with any
such claim or proceeding brought thereon and the defense thereof
with counsel approved by the Landlord and (ii) survive expiration
or earlier termination of this Lease. In no event shall Landlord
be entitled to any indemnity for consequential damages.
Section 3.7 Delays.
(a) On November 1, 1997, Landlord intends to have satisfied
all the Release Conditions contained in the Escrow Agreement,
including, without limitation, the condition relating to the
"Permits", as said term is defined in the Escrow Agreement. If,
on December 15, 1997, all of the Release Conditions are not
completely satisfied or Landlord has not commenced construction
by placement of forms for the foundation of the Building on the
Lot, then, at Tenant's election, Tenant shall have the right (i)
to terminate this Lease by written notice to Landlord within
three (3) Business Days of December 15, 1997 or (ii) take thirty
(30) days to evaluate its situation and, on January 15, 1998,
Tenant shall have the right to terminate this Lease by written
notice to Landlord within three (3) Business Days of January 15,
1998. Any failure of Tenant to exercise its rights of
termination within three (3) Business Days of December 15, 1997
or January 15, 1998, as the case may be, shall constitute a
waiver of such rights of termination on such dates.
Notwithstanding anything to the contrary contained in this Lease,
once Landlord commences construction by placement of forms for
the foundation of the Building on the Lot and, subject to delays
caused by Force Majeure, diligently pursues completion of the
Base Building, then, except as otherwise expressly provided
herein, Tenant shall have no right to terminate this Lease for
delays associated with Landlord's completion of the Base Building
unless Landlord fails to deliver the Base Building on the Outside
Date or, if delays have been caused by Force Majeure, Landlord
fails to deliver the Base Building on the Force Majeure Date.
Landlord shall provide Tenant with written notice of any Force
Majeure event promptly after the occurrence of such event and
Landlord's best estimate of the delay caused by such event. If,
on the Outside Date, Landlord fails to deliver the Base Building
due to delays caused by reasons other than Force Majeure, then
Tenant shall have the right to terminate this Lease by written
notice to Landlord. Any failure of Tenant to exercise its right
of termination within three (3) Business Days of the Outside Date
shall constitute a waiver of such right of termination. If,
prior to the Outside Date, Landlord anticipates that it will fail
to deliver the Base Building on the Outside Date due to delays
caused by Force Majeure, then Landlord shall notify Tenant within
three (3) Business Days prior to the Outside Date of the
reason(s) for such failure and Landlord's best estimate of the
Force Majeure Date, and Landlord shall have an additional period
equal to the Force Majeure Period in order to deliver the Base
Building on the Force Majeure Date. If, on the Force Majeure
Date, Landlord fails to deliver the Base Building, then Tenant
shall have the right to terminate this Lease by written notice to
Landlord. Any failure of Tenant to exercise its right of
termination within three (3) Business Days of the Force Majeure
Date shall constitute a waiver of such right of termination.
(b) This Subsection (b) and Section 9.4 shall apply before
and during the Term. All of the Tenant's alterations, additions
and installation of furnishings shall be coordinated with any
work being performed by Landlord and in such manner as to
maintain harmonious labor relations and not damage the Property
or interfere with Building construction or operation and, except
for Tenant's Work and installation of furnishings, shall be
performed by Landlord's general contractor or, at Landlord's
election, by contractors or workmen first approved by Landlord.
Except for work by Landlord's general contractor, Tenant before
its work is started shall: secure all licenses and permits
necessary therefor; deliver to Landlord a statement of the names
of all its contractors and subcontractors and the estimated cost
of all labor and material to be furnished by them; and cause each
contractor to carry workmen's compensation insurance in statutory
amounts covering all the contractor's and subcontractor's
employees and comprehensive public liability insurance and
property damage insurance with such limits as Landlord may
reasonably require but in no event less than a combined single
limit of Two Million and No/100ths ($2,000,000.00) Dollars (all
such insurance to be written in companies approved by Landlord
and insuring Landlord and Tenant as well as the contractors), and
to deliver to Landlord certificates of all such insurance.
Tenant agrees to pay promptly when due the entire cost of any
work done on the Premises by Tenant, its agents, employees, or
independent contractors, and not to cause or permit any liens for
labor or materials performed or furnished in connection therewith
to attach to the Premises or the Property and immediately to
discharge any such liens which may so attach and, at the request
of Landlord to deliver to Landlord security satisfactory to
Landlord against liens arising out of the furnishing of such
labor and material. Upon completion of any work done on the
Premises by Tenant, its agents, employees, or independent
contractors, Tenant shall promptly deliver to Landlord original
lien releases and waivers executed by each contractor,
subcontractor, supplier, materialmen, architect, engineer or
other party which furnished labor, materials or other services in
connection with such work and pursuant to which all liens, claims
and other rights of such party with respect to labor, material or
services furnished in connection with such work are
unconditionally released and waived.
Section 3.8. General Provisions Applicable to Construction.
All construction work required or permitted by this Lease,
whether performed by Landlord or by Tenant, shall be done in a
good and workmanlike manner and in compliance with all applicable
laws, ordinances, regulations, codes and orders of any
governmental authority. Either party may inspect the work of the
other at reasonable times and shall give notice of observed
defects.
Section 3.9. Construction Representatives. Each party
authorizes the other to rely in connection with plans and
construction upon approval and other actions on the party's
behalf by any Construction Representative of the party named in
Section 1.1 or any person hereafter designated in substitution or
addition by notice to the party relying.
Section 3.10. Changes In Building or Lot. Landlord shall
have the right, prior to or during construction of the Building,
to redesign the Building and/or floors within the Building to the
extent made necessary by field conditions, by requirement of any
applicable law, by-law, ordinance or municipal authority or
otherwise; provided, however, that no such redesign shall relieve
Landlord of its obligation to deliver the Premises, or any
portion thereof, in accordance with the foregoing provisions of
this Section 3 of the Lease and further provided that no such
redesign shall be made without the approval of Tenant, which
approval shall not be unreasonably withheld or delayed. In the
event any such redesign shall be implemented, Landlord shall keep
Tenant fully advised as to the changes made to the floor plans
attached hereto as Exhibit A and the parties shall enter promptly
into an amendment to this Lease reflecting any increase or
decrease in the area of the Premises, change in the Annual Rent
and the like resulting from any such redesign. Landlord also
reserves the right to change its layout, design and plans for the
Lot and Leasehold Parking Area and for parking and roadways
thereon at any time and to add to or reduce the size of the Lot
and the Leasehold Parking Area; provided that no reduction in the
size of the Lot may adversely affect the Building or the number
of parking spaces made available to Tenant under this Lease or
access ways serving the Building.
SECTION 4
Annual Rent
Section 4.1. The Annual Rent. Except as otherwise provided
in Section 3.1 of this Lease, commencing on the Commencement
Date, Tenant shall pay the Annual Rent to Landlord at the Address
of Landlord or at such other place or to such other person or
entity as Landlord may by notice to Tenant from time to time
direct, at the Annual Fixed Rent set forth in Section 1, in equal
installments equal to 1/12th of the Annual Fixed Rent in advance
on the first day of each calendar month included in the Term, and
for any portion of a calendar month at the beginning or end of
the Term, at that pro-rated rate payable in advance for such
portion, and the Additional Rent in accordance with the terms and
provisions of this Lease. Tenant shall pay a late charge equal to
five (5%) percent of the amount of any Annual Rent payment or
other charge which is not paid when due.
SECTION 5
Operating Cost Escalation
Section 5.1. Operating Cost Escalation. Tenant shall pay to
Landlord, as Additional Rent, Operating Cost Escalation (as
defined below) on or before the 10th day following receipt by
Tenant of Landlord's Operating Cost Statement (as defined below).
As used herein, the term "Landlord's Operating Costs" shall
mean all of the following: premiums for insurance; compensation
and all fringe benefits, worker's compensation, insurance
premiums and payroll taxes paid by Landlord to, for or with
respect to all persons engaged in the managing, operating,
maintaining or cleaning of the Property; water and sewer use
charges for the Property; all common area utility charges not
billed directly to tenants by Landlord or the utility; payments
to contractors and management companies under service or
management contracts (or other costs incurred directly by
Landlord or its agents) for operating, managing, cleaning,
maintaining and repairing the Property, including, without
limitation, management fees, Building cleaning, window cleaning,
pest extermination, trash removal, landscaping, snow removal and
repair and maintenance to elevators, the common area HVAC,
electric and plumbing systems and the parking area (which
payments may be to affiliates of Landlord, provided the same are
at reasonable rates), and all other reasonable and necessary
expenses paid in connection with the cleaning, operating,
managing, maintaining and repairing of the Property, or any of
them, and properly chargeable against income; it being agreed
that if Landlord shall install a new or replacement capital item
for the purpose of complying with applicable laws or regulations
or intended to reduce Landlord's Operating Costs, the annual
amortization (reasonably determined by Landlord over the useful
life of the asset) of the cost thereof, with interest thereon at
an annual rate equal to two (2%) percent above the base rate
(prime rate) of BankBoston (or any other Bank having offices in
Boston, Massachusetts chosen by Landlord) from time to time,
shall be included in Landlord's Operating Costs; all costs and
expenses allocated to the Property under that certain
"Declaration of Covenants, Restrictions, Development Standards
and Easements" dated December 30, 1996 and recorded in the
Middlesex South District Registry of Deeds in Book 26738, Page
245, as the same may be amended, restated, modified, changed,
supplemented or substituted from time to time (the "Reciprocal
Easement Agreement"), including, without limitation, all costs
and expenses of operating, maintaining, lighting, plowing and
repairing the Leasehold Parking Area, shall be included in
Landlord's Operating Costs.
Within sixty (60) days of the end of each calendar year
during the Term and after Lease termination, Landlord shall
render a statement ("Landlord's Operating Cost Statement") in
reasonable detail and according to usual accounting practices,
certified by Landlord, and showing for the preceding calendar
year or fraction thereof, as the case may be, Landlord's
Operating Costs (as defined below), excluding the interest and
amortization on mortgages for the Building and Lot, the cost of
special services rendered to tenants (including Tenant) for which
a special charge is made, real estate taxes on the Building and
Lot (including installments and interest on assessments for
public betterments or public improvements and expenses of any
proceedings for abatement of taxes and assessments with respect
to any fiscal year or fraction of a fiscal year) and any costs
relating to remediation of any hazardous materials on the Lot and
the Leasehold Parking Area in connection with closure of the
landfill on the Landfill Lot.
If, during the Term of this Lease, Landlord shall incur
capital expenses in connection with repairs to the roof,
foundation or structure of the Building directly related to any
equipment installed and used by Tenant in the Building, there
shall be included in the amount of the annual amortization
(determined by Landlord) of the cost thereof, with interest
thereon, at an annual rate equal to two (2%) percent above the
base rate (prime rate) of BankBoston (or any other bank having
offices in Boston, Massachusetts chosen by Landlord) from time to
time in effect at the time of making such capital repairs (less
insurance proceeds or other proceeds, if any, collected by
Landlord by reason of damage to, or destruction of, any capital
items so repaired.
If Annual Base Operating Costs exceed Landlord's Operating
Costs for any Lease Year during the Term as evidenced by
Landlord's Operating Cost Statement, then Landlord shall credit
Tenant the amount equal to the product of: (i) Tenant's
Proportionate Share times (ii) the excess of the Annual Base
Operating Costs over the Landlord's Operating Costs for the
applicable Lease Year as evidenced by Landlord's Operating Cost
Statement for the applicable Lease Year, against the next
payment(s) of Annual Fixed Rent (or refund such overpayment if
the Term of this Lease has ended and Tenant has no further
obligation to Landlord).
"Operating Cost Escalation" shall be equal to Tenant's
Proportionate Share of the excess, if any, of:
(a) Landlord's Operating Costs for each calendar year as
indicated by Landlord's Operating Cost Statement; over
(b) The Annual Base Operating Costs.
Operating Cost Escalations shall be apportioned for any
calendar year in which the Lease Term commences or ends.
Notwithstanding any other provision of this Section 5.1, if the
Term expires or is terminated as of a date other than the last
day of a calendar year, then for such fraction of a calendar year
at the end of the Term, Tenant's last payment to Landlord under
this Section 5.1 shall be made on the basis of Landlord's best
estimate of the items otherwise includable in Landlord's
Operating Cost Statement and shall be made on or before the later
of (a) 10 days after Landlord delivers such estimate to Tenant,
or (b) the last day of the Term, with an appropriate payment or
refund to be made upon submission of Landlord's Operating Cost
Statement. Tenant shall have the right, at Tenant's expense to
audit Landlord's Operating Cost Statement within ninety (90) days
after Landlord provides Tenant with said statement provided,
however, that in no event shall Tenant have the right to conduct
more than one such audit in any calendar year.
Section 5.2. Estimated Operating Cost Escalation
Payments. If, with respect to any calendar year or fraction
thereof during the Term, Landlord reasonably estimates that
Tenant shall be obligated to pay Operating Cost Escalation, then
Tenant shall pay, as Additional Rent, on the first day of each
month of such calendar year and each ensuing calendar year
thereafter, estimated monthly escalation payments equal to 1/12th
of the estimated Operating Cost Escalation for the respective
calendar year, with an appropriate additional payment or refund
to be made within 30 days after Landlord's Operating Cost
Statement is delivered to Tenant. Landlord may adjust such
estimated monthly escalation payment from time to time and at any
time during a calendar year, and Tenant shall pay, as Additional
Rent, on the first day of each month following receipt of
Landlord's notice thereof (which notice shall be accompanied by
appropriate documentation supporting such adjustment), the
adjusted estimated monthly escalation payment.
SECTION 6
Real Estate Tax Escalation.
Section 6.1. Real Estate Tax Escalation. Tenant shall pay to
Landlord, as Additional Rent, Real Estate Tax Escalation (as
defined below) on or before the thirtieth (30th) day following
billing therefor by Landlord.
As used herein, the term "Real Estate Taxes" shall mean all
taxes, assessments (special, betterment or otherwise), levies,
fees, water and sewer rents and charges, and all other government
levies and charges, general and special, ordinary and
extraordinary, foreseen and unforeseen, which are allocable to
the Term hereof and imposed or levied upon or assessed against
the Property. Nothing herein shall, however, require Tenant to
pay any income taxes, excess profits taxes, excise taxes,
franchise taxes, estate, succession, inheritance or transfer
taxes, provided, however, that if at any time during the Term the
present system of ad valorem taxation of real property shall be
changed so that in lieu of the whole or any part of the ad
valorem tax on real property, or in lieu of increases therein,
there shall be assessed on Landlord a capital levy or other tax
on the gross rents received with respect to the Property or a
federal, state, county, municipal, or other local income,
franchise, excise or similar tax, assessment, levy or charge
(distinct from any now in effect) measured by or based, in whole
or in part, upon gross rents, then any and all of such taxes,
assessments, levies or charges, to the extent so measured or
based ("Substitute Taxes"), shall be included as real estate
taxes hereunder, provided, however, that Substitute Taxes shall
be limited to the amount thereof as computed at the rates that
would be payable if the Building and the Lot were the only
property of Landlord. The term "real estate taxes" shall also
mean all real estate taxes and assessments (or any substitute
therefor) which are allocated to the Property under the
Reciprocal Easement Agreement.
"Real Estate Tax Escalation" shall be equal to Tenant's
Proportionate Share of the excess, if any, of:
(a) Real Estate Taxes for the applicable tax fiscal year
occurring during the Term; over
(b) the Annual Base Real Estate Taxes.
Notwithstanding any other provision of this Section 6.1, if
the Term expires or is terminated as of a date other than the
last date of a tax fiscal year, then for such fraction of a tax
fiscal year at the end of the Term, Tenant's last payment to
Landlord under this Section 6.1 shall be made to reflect that
only a portion of such tax fiscal year falls within the Term of
this Lease and shall be made within 10 days after Landlord bills
Tenant therefor.
Section 6.2. Estimated Real Estate Escalation Payments. If,
with respect to any tax fiscal year or fraction thereof during
the Term, Landlord reasonably estimates that Tenant shall be
obligated to pay Real Estate Tax Escalation, Tenant shall pay, as
Additional Rent, on the first day of each month of such tax
fiscal year and each ensuing tax fiscal year thereafter,
estimated monthly escalation payments equal to 1/12th of the
estimated Real Estate Tax Escalation for the respective tax
fiscal year, with an appropriate additional payment or refund to
be made within 30 days after Landlord's delivery of the tax bills
for such period to Tenant. Landlord may adjust such estimated
monthly escalation payment from time to time and at any time
during a tax fiscal year, and Tenant shall pay, as Additional
Rent, on the first day of each month following receipt of
Landlord's notice thereof, the adjusted estimated monthly
escalation payment.
Section 6.3. Assessment of Property. If Annual Base Real
Estate Taxes exceed the Real Estate Taxes assessed against the
Property for any fiscal year (the "Actual Annual Taxes"), then
Landlord shall credit Tenant the amount equal to the product of:
(i) Tenant's Proportionate Share times (ii) the excess of the
Annual Base Real Estate Taxes over the Actual Annual Taxes for
the applicable fiscal year, against the next payment(s) of Annual
Fixed Rent (or refund such overpayment if the Term of this Lease
has ended and Tenant has no further obligation to Landlord).
SECTION 7
Insurance
Section 7.1. Tenant's Insurance. Tenant shall, as additional
rent, maintain throughout the Term the following insurance:
(a) Commercial general liability insurance for any
injury to person or property occurring on the Premises, naming as
insureds Tenant, Landlord and such persons, including, without
limitation, Landlord's managing agent, as Landlord shall
designate from time to time, in amounts which shall, at the
beginning of the Term, be at least equal to the limits set forth
in Section 1, and, from time to time during the Term, shall be
for such higher limits as are reasonably required by Landlord;
and
(b) Worker's compensation insurance with statutory
limits covering all of Tenant's employees working at the
Premises; and
(c) Environmental liability insurance for any release
or threat of release of "Hazardous Materials" (as said term is
defined in Section 13.11 hereof) occurring on the Property as a
result of Tenant's use and operation of the Premises, naming as
insureds, Tenant, Landlord and such persons, including, without
limitation, Landlord's managing agent and Landlord's mortgagee,
as Landlord shall designate from time to time, in such amounts as
are reasonably required by Landlord, but in no event less than
(1) $1,000,000 per claim for Pollution Legal Liability Select
Coverage and (ii) $2,000,000 in the aggregate for bodily injury,
property damage and clean up costs. Tenant acknowledges and
agrees that if Landlord is required to obtain any special
environmental insurance as a result of Tenant's use and occupancy
of the Property, then Tenant shall pay for any insurance premiums
related thereto which insurance premiums shall be included in
Landlord's Operating Costs.
Section 7.2. Requirements Applicable to Insurance
Policies. All policies for insurance required under the
provisions of Section 7.1 shall be obtained from responsible
companies qualified to do business in the Commonwealth of
Massachusetts and in good standing therein, which companies and
the amount of insurance allocated thereto shall be subject to
Landlord's approval, which approval shall not be unreasonably
withheld or delayed. Tenant agrees to furnish Landlord with
insurance company certificates of all such insurance and copies
of the policies therefor prior to the beginning of the Term
hereof and of each renewal policy at least thirty (30) days prior
to the expiration of the policy it renews. Each such policy shall
be noncancellable with respect to the interest of Landlord and
such mortgagees without at least thirty (30) days' prior written
notice thereto.
Section 7.3. Waiver of Subrogation. All insurance which is
carried by either party with respect to the Premises or to
furniture, furnishings, fixtures or equipment therein or
alterations or improvements thereto, whether or not required,
shall include provisions which either designate the other party
as one of the insureds or deny to the insurer acquisition by
subrogation of rights of recovery against the other party to the
extent such rights have been waived by the insured party prior to
occurrence of loss or injury, insofar as, and to the extent that
such provisions may be effective without making it impossible to
obtain insurance coverage from responsible companies qualified to
do business in the Commonwealth of Massachusetts (even though
extra premium may result therefrom) and without voiding the
insurance coverage in force between the insurer and the insured
party. On reasonable request, each party shall be entitled to
have duplicates or certificates of policies containing such
provisions. Each party hereby waives all rights of recovery
against the other for loss or injury against which the waiving
party is protected by insurance containing said provisions,
reserving, however, any rights with respect to any excess of loss
or injury over the amount recovered by such insurance.
SECTION 8
Landlord's Covenants
Section 8.1. Quiet Enjoyment. Tenant, on paying the rent and
performing its obligations hereunder, shall peacefully and
quietly have, hold and enjoy the Premises throughout the Term
without any manner of hindrance or molestation from Landlord or
anyone claiming under Landlord, subject, however, to all the
terms and provisions hereof.
Section 8.2. Maintenance and Repair. Subject to the
provisions of Section 10, Landlord shall maintain the roof,
structural supports, foundation and exterior of the Building and
all standard plumbing, electrical, mechanical, heating,
ventilating and air conditioning systems installed by Landlord
(but excluding all special systems installed by Tenant or by
Landlord at Tenant's request) in good condition and shall
maintain and clean the common areas of the Building and the Lot,
the cost of which shall be included in Landlord's Operating
Costs.
Section 8.3. Electricity, Water and Gas. Electricity,
water and gas to the Premises shall be separately metered or
check metered and all utility charges for lights and plugs, water
and gas serving the Premises shall be billed directly to, and
paid by, Tenant. If in Landlord's reasonable judgment, Tenant's
use of electricity, water and gas in excess of normal office
usage shall result in an additional burden on the Building's
utility systems or additional cost on account thereof, as the
case may be, Tenant shall upon demand reimburse Landlord for all
additional costs related thereto. Landlord, at Tenant's expense,
shall replace and install all ballasts, lamps and bulbs
(including, but not limited to, incandescent and fluorescent)
used in the Premises. All such replacements shall be of a type,
color and size as shall be designated by Landlord. Landlord
shall not in any way be liable or responsible to Tenant for any
loss, damage or expense which Tenant may sustain or incur if the
quantity, character, or supply of electricity is changed or is no
longer available or suitable for Tenant's requirements.
Section 8.4. HVAC. All charges for any air conditioning,
heating and ventilation systems servicing the Premises shall be
billed directly to, and paid by Tenant, except for any portion of
the Premises occupied by Tenant where Landlord provides the air
conditioning, heating and ventilation services. Tenant shall pay
for any charges, costs and expenses associated with the use,
repair, maintenance and replacement of any air conditioning,
heating and ventilation system servicing the Premises. Landlord
shall, on Business Days and generally during Business Hours
furnish heating and cooling as normal seasonal changes may
require to provide reasonably comfortable space temperature and
ventilation for common areas of the Building, and Tenant shall
pay Tenant's Proportionate Share of any costs and expenses
associated with such services. In the event Tenant introduces
into the Premises personnel or equipment which overloads the
capacity of the Building system or in any other way interferes
with the system's ability to perform adequately its proper
functions, or which affects the temperature otherwise maintained
by the air-conditioning system, supplementary systems may, if and
as needed, at Landlord's option, be provided by Landlord, at
Tenant's expense.
Section 8.5. Cleaning. With respect to the common areas of
the Building, Landlord shall provide nightly cleaning services as
more particularly described in Exhibit K attached hereto for said
portions of the Building (Mondays through Fridays only)
commensurate with industry standards for office buildings
comparable to the Building located in Framingham, Massachusetts.
Section 8.6. Interruptions.
(a) Landlord shall not be liable to Tenant for any
compensation or reduction of rent by reason of inconvenience or
annoyance or for loss of business arising from power losses or
shortages or from the necessity of Landlord's entering the
Premises for any of the purposes authorized by this Lease or for
repairing the Premises or any portion of the Building or Lot or
Leasehold Parking Area. In case Landlord is prevented or delayed
from making any repairs, alterations or improvements, or
furnishing any service or performing any other obligation to be
performed on Landlord's part, by reason of any cause, Landlord
shall not be liable to Tenant therefor, nor shall Tenant be
entitled to any abatement or reduction of rent by reason thereof,
nor shall the same give rise to any claim by Tenant that such
failure constitutes actual or constructive, total or partial,
eviction from the Premises. Landlord reserves the right to stop
any service or utility system when necessary by reason of
accident or emergency or until necessary repairs have been
completed. Except in case of emergency repairs, Landlord will
give Tenant reasonable advance notice of any contemplated
stoppage and will use reasonable efforts to avoid unnecessary
inconvenience to Tenant by reason thereof. Landlord also reserves
the right to institute such policies, programs and measures as
may be necessary, required or expedient for the conservation or
preservation of energy or energy services or as may be necessary
or required to comply with applicable codes, rules, regulations
or standards. In so doing, Landlord shall make reasonable efforts
to avoid unnecessary inconvenience to Tenant by reason thereof.
(b) Notwithstanding anything contained in this Lease to the
contrary, if (i) an interruption or curtailment, suspension or
stoppage of an Essential Service (as said term is hereinafter
defined) shall occur (any such interruption of an Essential
Service being hereinafter referred to as a "Service
Interruption"), (ii) such Service Interruption occurs or
continues as a result of an involuntary interruption, stoppage or
suspension of Essential Services by Landlord or as the result of
any circumstance which is subject to the control of Landlord,
(iii) such Service Interruption continues for more than forty
five (45) consecutive calendar days after Landlord shall have
received notice thereof from Tenant, (which notice shall
specifically refer to the provisions of this paragraph) and (iv)
as a result of such Service Interruption, the conduct of Tenant's
normal operations in the Premises are materially and adversely
affected, then there shall be an abatement of one day's Annual
Fixed Rent for each day during which such Service Interruption
continues provided, further, that if any part of the Premises is
reasonably useable for Tenant's operations or if Tenant conducts
all or any part of its operations in the Premises notwithstanding
such Service Interruption, then the amount of each daily
abatement of Annual Fixed Rent shall only be proportionate to the
nature and extent of the interruption of Tenant's normal
operations. The rights granted under this paragraph shall be
personal to the original Tenant and shall terminate upon any
assignment of the Lease or any subletting of all or any portion
of the Premises outstanding at any one time. For purposes
hereof, the term "Essential Services" shall mean the following
services, to the extent that Landlord has agreed to provide any
of them to Tenant pursuant to this Lease: elevator service,
heating, air-conditioning, water and electricity. Any abatement
of Annual Fixed Rent under this paragraph shall apply only with
respect to Annual Fixed Rent allocable to the period after each
of the conditions set forth in subsections (i) through (iv)
hereof shall have been satisfied.
Section 8.7. Representations.
(a) To the best of Landlord's knowledge, Landlord
represents, but does not warrant, that: (i) it has good clear
record and marketable title to the Lot, free and clear of all
encumbrances or obligations affecting the Lot other than the
Title Exceptions and any other rights, easements, encumbrances
and reservations which shall not materially interfere with
Tenant's rights under the Lease. To the best of Landlord's
knowledge, there is no pending or threatened condemnation or
eminent domain proceeding with respect to the Lot. To the best
of Landlord's knowledge, the Lot is legally subdivided and
consists of a separate tax lot so that it will be assessed
separate and apart from any other property. To the best of
Landlord's knowledge, there are no suits, notices or proceedings
pending, or to the best of Landlord's knowledge, threatened by
any persons or government agencies before any court, governmental
agency or instrumentality administrative or otherwise which would
have an affect on Landlord's title to the Lot.
(b) Landlord is the assignee of Tenant's interest under the
Ground Lease, and, to the best of Landlord's knowledge,
Landlord's interest is free and clear of any liens or
encumbrances, except for the Title Exceptions and any other
rights, easements, encumbrances and reservations which shall not
materially interfere with Tenant's rights under the Lease. To
the best of Landlord's knowledge, true, correct and complete
copies of the Ground Lease and all amendments, modifications and
supplemental agreements thereto have previously been delivered to
Landlord. To the best of Landlord's knowledge, the Ground Lease
is in full force and affect and is binding and enforceable
against each of the parties thereto in accordance with its terms
and has not been modified or amended since the date of delivery
to Tenant. To the best of Landlord's knowledge, there has not
occurred any event which would constitute a breach of or default
in the performance of any material covenant, agreement or
condition contained in the Ground Lease, nor has there occurred
any events which with the passage of time, giving of notice or
both would constitute such a breach or material default.
Landlord shall perform and observe all of the terms, covenants
and conditions required to be performed by Landlord as tenant
under the Ground Lease.
Section 8.8. Estoppel Certificates. Landlord shall at any
time and from time to time upon not less than ten (10) days'
prior notice by Tenant to Landlord, execute, acknowledge and
deliver to Tenant a statement in writing certifying that this
Lease is unmodified and in full force and effect (or if there
have been modifications, that the same is in full force and
effect as modified and stating the modifications), and the dates
to which the rent and other charges have been paid in advance, if
any, and stating whether or not to the best of Landlord's
knowledge, Tenant is in default in performance of any covenant,
agreement, term, provision or condition contained in this Lease
and, if so specifying each such default of which the Landlord may
have knowledge.
SECTION 9
Tenant's Covenants
Section 9.1. Use. Tenant shall use the Premises only for the
Permitted Uses and shall from time to time procure all licenses
and permits necessary therefor at Tenant's sole expense.
Section 9.2. Repair and Maintenance. Except as otherwise
provided in Sections 8 and 10, Tenant shall keep the Premises,
including all plumbing, electrical, heating, air conditioning and
other systems therein, in good order, condition and repair and in
at least as good order, condition and repair as they are in on
the Commencement Date or may be put in during the Term,
reasonable use and wear only excepted. Tenant shall make all
repairs and replacements and do all other work necessary for the
foregoing purposes whether the same may be ordinary or
extraordinary, foreseen or unforeseen. Tenant shall keep in a
safe, secure and sanitary condition all trash and rubbish
temporarily stored at the Premises.
Section 9.3. Compliance with Law and Insurance Requirements.
Tenant shall comply with all laws, rules, regulations, codes and
ordinances including, without limitation, OSHA, NIH and FDA
regulations, in its use and occupancy of the Property. Tenant
shall make all repairs, alterations, additions or replacements to
the Premises required by any law or ordinance or any order or
regulation of any public authority arising from Tenant's use of
the Premises and shall keep the Premises equipped with all safety
appliances so required. Tenant shall not release, dump, flush, or
in any way introduce any "Hazardous Materials" (as said term is
defined in Section 13.11 hereof) into the septic, sewage or other
waste disposal system serving the Premises, or generate, store,
transfer or dispose of Hazardous Materials in or on the Premises
or dispose of Hazardous Materials from the Premises to any other
location except in compliance with "Environmental Laws" (as said
term is defined in Section 13.11 hereof). Tenant shall notify
Landlord of any incident which would require the filing of a
notice under the Environmental Laws.
Landlord may, if it so elects, make any of the repairs,
alterations, additions or replacements referred to in this
Section which affect the Building structure or the Building
systems, and Tenant shall reimburse Landlord for the cost thereof
on demand.
Tenant will provide Landlord, from time to time upon
Landlord's request, with all records and information regarding
any Hazardous Materials maintained on the Premises by Tenant.
Landlord shall have the right to make such inspections as
Landlord shall reasonably elect from time to time to determine if
Tenant is complying with this Section and if any of such
inspections reveals contamination by Hazardous Materials of the
Property as a result of Tenant's operations or actions or the
actions of Tenant's agents, contractors or employees, Tenant
shall reimburse Landlord for the cost of performing (or
contracting for) such inspections.
Tenant shall comply promptly with the recommendations of any
insurer, foreseen or unforeseen, ordinary as well as
extraordinary, which may be applicable to the Property, by reason
of Tenant's use thereof. In no event shall any activity be
conducted by Tenant on the Property which may give rise to any
cancellation of any insurance policy or make any insurance
unobtainable.
Section 9.4. Tenant's Alterations. Landlord and Tenant
agree that this Section 9.4 shall apply to any future
installations, alterations, additions or improvements in or to
the Premises occurring after the construction of Tenant's Work in
accordance with Section 3.4 hereof. Tenant shall not make any
installations, alterations, additions or improvements in or to
the Premises, including, without limitation, any apertures in the
walls, partitions, ceilings or floors, without on each occasion
obtaining the prior written consent of Landlord, which consent
shall not be unreasonably withheld or delayed. Any such work so
consented to by Landlord shall be performed only in accordance
with plans and specifications therefor approved by Landlord which
approval shall not be unreasonably withheld or delayed. Tenant
shall procure at Tenant's sole expense all necessary permits and
licenses before undertaking any work on the Premises and shall
perform all such work in a good and workmanlike manner employing
materials of good quality and so as to conform with all
applicable zoning, building, fire, health and other codes,
regulations, ordinances and laws and with all applicable
insurance requirements. Tenant agrees to pay promptly when due
the entire cost of any work done on the Premises by Tenant, its
agents, employees or independent contractors, and not to cause or
permit any liens for labor or materials performed or furnished in
connection therewith to attach to the Property and to discharge
any such liens which may so attach within five (5) calendar days
and, at the request of Landlord, to deliver to Landlord security
satisfactory to Landlord against liens arising out of the
furnishing of such labor and material, including, without
limitation, evidence of bonding over said liens with performance,
payment and xxxx xxxxx in favor of Landlord and Tenant; Landlord
and Tenant agree that payment and performance bonds shall only be
necessary for any work for which the total contract sum exceeds
$100,000.00. Tenant shall employ for such work only contractors
approved by Landlord, which approval shall not be unreasonably
withheld or delayed, and shall require all contractors employed
by Tenant to carry worker's compensation insurance in accordance
with statutory requirements and comprehensive general liability
insurance covering such contractors, and naming Landlord and
Tenant as additional insureds, on or about the Premises in
amounts at least equal to the limits set forth in Section 1 and
to submit certificates evidencing such coverage to Landlord prior
to the commencement of such work. Tenant shall save Landlord
harmless and indemnified from all injury, loss, claims or damage
to any person or property occasioned by or growing out of such
work. Landlord may inspect the work of Tenant at reasonable times
and give notice of observed defects.
Section 9.5. Indemnity. Tenant shall defend, with counsel
reasonably approved by Landlord, all actions against Landlord,
any member, partner, trustee, stockholder, officer, director,
employee or beneficiary of Landlord, holders of mortgages secured
by the Building and any other party having an interest in the
Premises ("Indemnified Parties") with respect to, and shall pay,
protect, indemnify and save harmless, to the extent permitted by
law, all Indemnified Parties from and against, any and all
liabilities, losses, damages, costs, expenses (including
reasonable attorneys' fees and expenses), causes of action,
suits, claims, demands or judgments of any nature arising from
(a) injury to or death of any person, or damage to or loss of
property, occurring in the Premises unless caused by the
negligence or willful misconduct of Landlord or its servants or
agents, (b) violation of this Lease by Tenant, or (c) any
wrongful act or other misconduct of Tenant or its agents, general
contractor (unless Tenant's G.C. is Xxxxxxxx Construction),
contractors, subcontractors, licensees, sublessees or invitees.
The indemnity contained in this Section 9.5 shall survive any
expiration or earlier termination of this Lease. In no event
shall Landlord be entitled to any indemnity for consequential
damages.
Section 9.6. Landlord's Right to Enter. Tenant shall permit
Landlord and its agents to enter into the Premises at reasonable
times and upon reasonable notice (except that in emergencies no
notice shall be required) to examine the Premises, make such
repairs and replacements as Landlord may elect, without however,
any obligation to do so, and show the Premises to prospective
purchasers and lenders, and, during the last nine (9) months of
the Term, to show the Premises to prospective tenants and to keep
affixed in suitable places notices of availability of the
Premises.
Section 9.7. Personal Property at Tenant's Risk. All
furnishings, fixtures, equipment, effects and property of every
kind of Tenant and of all persons claiming by, through or under
Tenant which may be on the Premises, shall be at the sole risk
and hazard of Tenant and if the whole or any part thereof shall
be destroyed or damaged by fire, water or otherwise, or by the
leakage or bursting of water pipes, steam pipes, or other pipes,
by theft or from any other cause, no part of said loss or damage
shall be charged to or to be borne by Landlord, except that
Landlord shall in no event be indemnified or held harmless or
exonerated from any liability to Tenant for any injury, loss,
damage or liability not covered by Tenant's insurance to the
extent prohibited by law. Tenant shall insure Tenant's personal
property.
Section 9.8. Yield Up. At the expiration of the Term or
earlier termination of this Lease, Tenant shall surrender all
keys to the Premises, remove all of Tenant's Removable Property
and repair all damage caused by such removal including, without
limitation, any repairs to the roof of the Building required as a
result of such removal and yield up (i) the Premises (broom-clean
and in the same good order and repair in which Tenant is obliged
to keep and maintain the Premises under this Lease) and (ii) the
Yield Up Equipment. Any of Tenant's Removable Property, not so
removed shall be deemed abandoned and may be removed and disposed
of by Landlord in such manner as Landlord shall determine, and
Tenant shall pay Landlord the entire cost and expense incurred by
it in effecting such removal and disposition and in making any
incidental repairs and replacements to the Premises and for use
and occupancy during the period after the expiration of the Term
and prior to Tenant's performance of its obligations under this
Section 9.8.
Section 9.9. Estoppel Certificate. Upon not less than five
(5) business days' prior notice by Landlord, Tenant shall
execute, acknowledge and deliver to Landlord a statement in
writing certifying that this Lease is unmodified and in full
force and effect and that, except as stated therein, Tenant has
no knowledge of any defenses, offsets or counterclaims against
its obligations to pay the Annual Rent and any other charges and
to perform its other covenants under this Lease (or, if there
have been any modifications that the same is in full force and
effect as modified and stating the modifications and, if there
are any defenses, offsets or counterclaims, setting them forth in
reasonable detail), the dates to which the Annual Rent and other
charges have been paid and a statement that Landlord is not in
default hereunder (or if in default, the nature of such default,
in reasonable detail). Any such statement delivered pursuant to
this Section 9.9 may be relied upon by any prospective purchaser
or mortgagee of the Building.
Section 9.10. Landlord's Expenses Re Consents.
Intentionally Omitted.
Section 9.11. Rules and Regulations. Tenant shall comply
with the Rules and Regulations attached hereto as Exhibit F
attached hereto and such additional reasonable rules and
regulations as may be adopted from time to time by Landlord to
provide for the beneficial operation of the Property.
Section 9.12. Holding Over. Tenant shall vacate the Premises
immediately upon the expiration or sooner termination of this
Lease. If Tenant retains possession of the Premises or any part
thereof after the termination of the Term without Landlord's
express consent, Tenant shall pay Landlord rent at double the
monthly rate specified in Section 1 for the time Tenant thus
remains in possession and, in addition thereto, shall pay
Landlord for all damages, excluding consequential damages,
sustained by reason of Tenant's retention of possession. The
provisions of this Section do not exclude Landlord's rights of re-
entry or any other right hereunder, including without limitation,
the right to remove Tenant through summary proceedings for
holding over beyond the expiration of the Term of this Lease.
Section 9.13. Assignment and Subletting.
(a) Tenant covenants and agrees that neither this Lease nor
the Term and estate hereby granted, nor any interest herein or
therein, will be assigned, mortgaged, pledged, encumbered or
otherwise transferred and that neither the Premises nor any part
thereof will be encumbered in any manner by reason of any act or
omission on the part of Tenant, or used or occupied or permitted
to be used or occupied, by anyone other than Tenant, or for any
use or purpose other than a Permitted Use, or be sublet (which
term, without limitation, shall include granting of concessions,
licenses and the like) in whole or in part without Landlord's
consent which will not be unreasonably withheld or delayed. The
foregoing restrictions shall not be applicable to an assignment
of this Lease or a subletting of the Premises by Tenant to any of
the following parties (collectively called the "Related
Occupants"): a subsidiary wholly-owned by Tenant or to a
controlling corporation, the stock of which is wholly-owned by
the stockholders of Tenant, to any Affiliate of Tenant, to any
purchaser of all or substantially all of Tenant's business or to
any successor of Tenant by merger or consolidation provided,
however, that any such Affiliate, purchaser or successor shall
have a net worth not less than that of Tenant immediately prior
to such merger, consolidation or purchase. It shall be a
condition of the validity of any assignment, whether with the
consent of Landlord or to a subsidiary or controlling
corporation, that the assignee agree directly with Landlord, by
written instrument in form satisfactory to Landlord, to be bound
by all the obligations of Tenant hereunder including, without
limitation, the covenant against further assignment and
subletting. No assignment or subletting shall relieve Tenant
from its obligations hereunder and Tenant shall remain fully and
primarily liable therefor. Notwithstanding anything to the
contrary contained herein, Landlord shall be entitled to collect
(i) one hundred (100%) percent of any profit related to any
assignment in connection with this Lease and (ii) fifty (50%)
percent of any rent, income or profit derived from any sublease
of any portion of the Premises in excess of Tenant's Base
Subleasing Profit.
(b) If this Lease be assigned, or if the Premises or any
part thereof be sublet or occupied by anyone other than Tenant,
Landlord may, whether or not it has consented to any such
assignment, subletting or occupancy, at any time and from time to
time collect rent and other charges from the assignee, subtenant
or occupant, and apply the net amount collected to the rent and
other charges herein reserved, but no such assignment,
subletting, occupancy or collection shall be deemed a waiver of
any breach of Section 8.1 (a), or the acceptance of the assignee,
subtenant or occupant as a tenant or a release of Tenant from the
further performance by Tenant of its obligations hereunder. The
consent by Landlord to an assignment or subletting shall in no
way be construed to relieve Tenant or any successor from
obtaining the express consent in writing of Landlord to any
further assignment or subletting nor shall any such consent
release, diminish or impair Tenant's continuing primary liability
for performance of this Lease. No assignment or subletting and
no use of the Premises by a subsidiary wholly-owned by Tenant or
controlling corporation of Tenant shall affect the Permitted
Uses.
(c) In connection with any request by Tenant for Landlord's
consent to a sublease as required under Section 9.13(a), Tenant
shall first submit to Landlord in writing: (i) the name of the
proposed subtenant, (ii) such information as to its financial
responsibility and standing as Landlord may reasonably require,
and (iii) all terms and provisions upon which the proposed
subletting is to be made. Upon receipt from Tenant of such
requested information if Tenant is proposing a sublease of the
entire Premises, Landlord shall have an option (the "Take Back
Option") to be exercised in writing within thirty (30) days after
its receipt from Tenant of such requested information, to cancel
or terminate this Lease, as of the date set forth in Landlord's
notice of exercise of the Take Back Option, which shall not be
less than sixty (60) days nor more than one hundred twenty (120)
days following the giving of such notice. In the event Landlord
shall exercise the Take Back Option, Tenant shall surrender
possession of the entire Premises, on the date set forth in such
notice in accordance with the provisions of this Lease relating
to the surrender of the Premises at the expiration of the Term.
If Landlord exercises the Take Back Option, Landlord shall pay to
Tenant the unamortized value of the tenant improvements located
within the Premises. Notwithstanding anything to the contrary
contained herein, Landlord's Take Back Option is applicable only
if Tenant's request for Landlord's consent to a sublease involves
a sublease of the entire Premises.
Section 9.14. Overloading and Nuisance. Tenant shall not
injure, overload, deface or otherwise harm the Premises, commit
any nuisance, permit the emission of any objectionable noise,
vibration or odor, make, allow or suffer any waste or make any
use of the Premises which is improper, offensive or contrary to
any law or ordinance or which will invalidate any of Landlord's
insurance.
SECTION 10
Casualty or Taking
Section 10.1. Termination. In the event that greater than
twenty-five (25) percent of the Building or the Lot shall be
taken by any public authority or for any public use or destroyed
by the action of any public authority (a "Taking") then this
Lease may be terminated by either Landlord or Tenant effective on
the effective date of the Taking. In the event that the Premises
shall be destroyed or damaged by fire or casualty (a "Casualty")
and if it will require in excess of 120 days from the date of the
Casualty to restore the Premises, this Lease may be terminated by
either Landlord or Tenant by notice to the other within thirty
days after the casualty. In the case of a Taking, such election,
which may be made notwithstanding the fact that Landlord's entire
interest may have been divested, shall be made by the giving of
notice by Landlord or Tenant to the other within thirty (30) days
after Landlord or Tenant, as the case may be, shall receive
notice of the Taking.
Section 10.2. Restoration. In the event of a Taking or a
Casualty, unless Landlord or Tenant shall exercise an election to
terminate provided in Section 10.1, this Lease shall continue in
force and a just proportion of the Annual Rent and other charges
hereunder, according to the nature and extent of the damages
sustained by the Premises, but not in excess of an equitable
portion of the net proceeds of any rental insurance recovered by
Landlord, shall be abated until the Premises, or what may remain
thereof, shall be put by Landlord in proper condition for use
subject to zoning and building laws or ordinances then in
existence, which, unless Landlord or Tenant has exercised its
option to terminate pursuant to Section 10.1, Landlord covenants
to do with reasonable diligence at Landlord's expense. Landlord's
obligations with respect to restoration shall not require
Landlord to expend more than the net proceeds of insurance
recovered or damages awarded for such Casualty or Taking and made
available for restoration by Landlord's mortgagees. "Net proceeds
of insurance recovered or damages awarded" refers to the gross
amount of such insurance or damages less the reasonable expenses
of Landlord in connection with the collection of the same,
including without limitation, fees and expenses for legal and
appraisal services.
Section 10.3. Award. Irrespective of the form in which
recovery may be had by law, all rights to damages or compensation
shall belong to Landlord except Tenant shall be entitled to claim
relocation costs and a claim for the value of its improvements to
the Premises provided that Tenant's claim does not diminish
Landlord's claim or award.
SECTION 11
Default
Section 11.1. Events of Default.
If: (a) Tenant shall default in the performance of any of
its obligations to pay the Annual Fixed Rent, Additional Rent or
any other sum payable hereunder and if such default shall
continue for ten (10) days after notice from Landlord designating
such default;
(b) if within thirty (30) days after notice from
Landlord to Tenant specifying any other default or defaults
Tenant has not commenced diligently to correct the default or
defaults so specified or has not thereafter diligently pursued
such' correction to completion;
(c) if any assignment for the benefit of creditors
shall be made by Tenant;
(d) if Tenant's leasehold interest shall be taken on
execution or other process of law in any action against Tenant;
(e) if a lien or other involuntary encumbrance is filed
against Tenant's leasehold interest, and is not discharged or
bonded over, as the case may be, within ten (10) days thereafter;
(f) if a petition is filed by Tenant for liquidation,
or for reorganization or an arrangement or any other relief under
any provision of the Bankruptcy Code as then in force and effect;
or
(g) if an involuntary petition under any of the
provisions of said Bankruptcy Code is filed against Tenant and
such involuntary petition is not dismissed within thirty (30)
days thereafter, then, and in any of such cases, Landlord and the
agents and servants of Landlord lawfully may, in addition to and
not in derogation of any remedies for any preceding breach of
covenant, immediately or at any time thereafter and without
demand or notice and with or without process of law (forcibly, if
necessary) enter into and upon the Premises or any part thereof
in the name of the whole, or mail a notice of termination
addressed to Tenant, and repossess the same as of Landlord's
former estate and expel Tenant and those claiming through or
under Tenant and remove its and their effects without being
deemed guilty of any manner of trespass and without prejudice to
any remedies which might otherwise be used for arrears of rent or
prior breach of covenant, and upon such entry or mailing as
aforesaid this Lease shall terminate. Landlord, without notice to
Tenant, may store Tenant's effects, and those of any person
claiming through or under Tenant at the expense and risk of
Tenant, and, if Landlord so elects, may, with notice to Tenant,
sell such effects at public auction or private sale and apply the
net proceeds to the payment of all sums due to Landlord from
Tenant, if any, and pay over the balance, if any, to Tenant.
Section 11.2. Remedies. In the event that this Lease is
terminated under any of the provisions contained in Section 11.1,
Tenant shall pay forthwith to Landlord, as compensation, the
present value of the excess of the total rent reserved for the
residue of the Term over the fair market rental value (computed
using a discount rate of eight (8%) percent) of the Premises for
the residue of the Term. In calculating the rent reserved there
shall be included, in addition to the Annual Fixed Rent and
Additional Rent, the value of all other considerations agreed to
be paid or performed by Tenant during the residue. As additional
and cumulative obligations after any such termination, Tenant
shall also pay punctually to Landlord all the sums and shall
perform all the obligations which Tenant covenants in this Lease
to pay and to perform in the same manner and to the same extent
and at the same time as if this Lease had not been terminated. In
calculating the amounts to be paid by Tenant pursuant to the
preceding sentence, Tenant shall be credited with any amount paid
to Landlord pursuant to the first sentence of this Section 11.2
and also with the net proceeds of any rent obtained by Landlord
by reletting the Premises, after deducting all Landlord's
reasonable expenses in connection with such reletting, including,
without limitation, all repossession costs, brokerage
commissions, fees for legal services and expenses of preparing
the Premises for such reletting, it being agreed by Tenant that
Landlord may (i) relet the Premises or any part or parts thereof
for a term or terms which may at Landlord's option be equal to or
less than or exceed the period which would otherwise have
constituted the balance of the Term hereof and may grant such
concessions and free rent as Landlord in its reasonable judgment
considers advisable or necessary to relet the same and (ii) make
such alterations, repairs and decorations in the Premises as
Landlord in its reasonable judgment considers advisable or
necessary to relet the same, and no action of Landlord in
accordance with the foregoing or failure to relet or to collect
rent under reletting shall operate or be construed to release or
reduce Tenant's liability as aforesaid. Landlord acknowledges
and agrees to use reasonable efforts to relet the Premises
provided, however, that any failure of Landlord to relet the
Premises shall not constitute a default hereunder.
Section 11.3. Remedies Cumulative. Except as otherwise
expressly provided herein, any and all rights and remedies which
Landlord may have under this Lease and at law and 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 to the greatest extent permitted by
law.
Section 11.4. Landlord's Right to Cure Defaults. At any time
following ten (10) days' prior notice to Tenant (except in cases
of emergency when no notice shall be required), Landlord may (but
shall not be obligated to) cure any default by Tenant under this
Lease, and whenever Landlord so elects, all costs and expenses
incurred by Landlord, including reasonable attorneys' fees, in
curing a default shall be paid by Tenant to Landlord as
Additional Rent on demand, together with interest thereon at the
rate provided in Section 11.7 from the date of payment by
Landlord to the date of payment by Tenant.
Section 11.5. Effect of Waivers of Default. Any consent or
permission by Landlord to any act or omission which otherwise
would be a breach of any covenant or condition herein, or any
waiver by Landlord of the breach of any covenant or condition
herein, shall not in any way be held or construed (unless
expressly so declared) to operate so as to impair the continuing
obligation of any covenant or condition herein, or otherwise
operate to permit the same or similar acts or omissions except as
to the specific instance. The failure of Landlord to seek redress
for violation of, or to insist upon the strict performance of,
any covenant or condition of this Lease shall not be deemed a
waiver of such violation nor prevent a subsequent act, which
would have originally constituted a violation, from having all
the force and effect of an original violation. The receipt by
Landlord of any Annual Rent hereunder with knowledge of the
breach of any covenant of this Lease shall not be deemed to have
been a waiver of such breach by Landlord or of any of Landlord's
remedies on account thereof, including its right of termination
for such default.
Section 11.6. No Accord and Satisfaction. No acceptance by
Landlord of a lesser sum than the Annual Fixed Rent, Additional
Rent or any other sum then due shall be deemed to be other than
on account of the earliest installment of such rent or charge
due, unless Landlord elects by notice to Tenant to credit such
sum against the most recent installment due. Any endorsement or
statement on any check or any letter accompanying any check or
payment as rent or other charge shall not 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 installment or pursue any other remedy under this Lease or
otherwise.
Section 11.7. Interest on Overdue Sums. If Tenant fails to
pay Annual Fixed Rent, Additional Rent or other sums payable by
Tenant to Landlord within ten (10) days of the due date thereof
(i.e., the due date disregarding any requirement of notice from
Landlord), the amount so unpaid shall bear interest at a variable
rate (the "Delinquency Rate") equal to four percent (4%) in
excess of the base rate (prime rate) of BankBoston from time to
time in effect commencing with the eleventh (11th) day after the
due date and continuing through the day on which payment of such
delinquent payment with interest thereon is paid. If such rate is
in excess of any maximum interest rate permissible under
applicable law, the Delinquency Rate shall be the maximum
interest rate permissible under applicable law.
Section 11.8. Cost and Expenses: All costs and expenses
incurred by or on behalf of Landlord (including, without
limitation, attorneys' fees and expenses) in enforcing its rights
hereunder or occasioned by any default of Tenant shall be paid by
Tenant.
SECTION 12
Mortgages
Section 12.1. Rights of Mortgage Holders. No Annual Fixed
Rent, Additional Rent or any other charge which is paid more than
one month prior to the due date thereof and payments made in
violation of this provision shall (except to the extent that such
payments are actually received by a mortgagee in possession or in
the process of foreclosing its mortgage) be a nullity as against
such mortgagee and Tenant shall be liable for the amount of such
payments to such mortgagee, provided however, that the foregoing
clause shall not apply to the Security Deposit and any mortgagee
shall be governed by the terms and conditions of this Lease with
respect to same.
In the event of any act or omission by Landlord which would
give Tenant the right to terminate this Lease or to claim a
partial or total eviction, Tenant shall not exercise any such
right (a) until it shall have given notice, in the manner
provided in Section 13.1, of such act or omission to the holder
of any mortgage encumbering the Premises whose name and address
shall have been furnished to Tenant in writing, at the last
address so furnished, and (b) until a reasonable period of time
for remedying such act or omission shall have elapsed following
the giving of such notice, provided that following the giving of
such notice, Landlord or such holder shall, with reasonable
diligence, have commenced and continued to remedy such act or
omission or to cause the same to be rendered. Notwithstanding
the foregoing, such "reasonable period of time" shall not extend
beyond thirty (30) days unless Landlord or such holder has
commenced and diligently pursues to completion the remedy of such
act or omission within said thirty (30) day period. The
provisions contained in this paragraph shall not affect any of
Tenant's rights to terminate this Lease under Section 3.7 of this
Lease.
In the event any proceedings are brought for the foreclosure
of, or in the event of exercise of the power of sale under, any
mortgage now or hereafter encumbering the Premises, Tenant shall
attorn to the purchaser upon such foreclosure or sale or upon any
grant of a deed in lieu of foreclosure and recognize such
purchaser as Landlord under this Lease.
Section 12.2. Lease Subordinate. At Landlord's election,
this Lease, and all rights of Tenant hereunder, shall be subject
and subordinate to all mortgages and/or ground leases which may
now or hereafter affect the Property whether or not such
mortgages or leases shall also cover other lands and/or
buildings, to each and every advance made or hereafter to be made
under such mortgages, and to all renewals, modifications,
replacements and extensions of such mortgages and leases and all
consolidations of such mortgages, provided that, with respect to
any such mortgage or lease hereafter placed on the Property,
Landlord shall deliver to Tenant an agreement, in form and
substance reasonably acceptable to such holder or lessor and
Tenant, by such holder or lessor to the effect that, subject to
qualifications of the type set forth in the second sentence of
paragraph (b) hereof, all of Tenant's rights hereunder shall be
recognized by such holder or lessor. Such subordination shall be
automatic and without need for any additional action or
documentation. Without derogating from the foregoing, in
confirmation of such subordination, and subject to the foregoing
condition, Tenant shall promptly execute, acknowledge and deliver
any instrument that Landlord, the holder of any such mortgage or
the lessor under any such lease or any of their respective
successors in interest may reasonably request to evidence such
subordination. Landlord agrees to request the holder of the
existing mortgage on the Property to deliver an agreement, in
form and substance acceptable to such holder, by such holder to
the effect that, subject to the qualifications of the type set
forth in the second sentence of paragraph (b) hereof, that such
holder recognizes all of Tenant's rights hereunder provided that
Tenant is not in default (beyond any applicable notice and grace
period) of any of the terms, provisions, covenants, agreements
and conditions to be observed, performed and complied with by
Tenant under this Lease. Any mortgage to which this Lease is, at
the time referred to, subject and subordinate, is herein called
"Superior Mortgage" and the holder of a Superior Mortgage is
herein called "Superior Mortgagee"; and any lease to which this
Lease is, at the time referred to, subject and subordinate is
herein called "Superior Lease" and the lessor of a Superior Lease
or its successor in interest, at the time referred to, is herein
called "Superior Lessor".
(b) If any Superior Mortgagee or Superior Lessor or
the nominee or designee of any Superior Mortgagee or Superior
Lessor shall succeed the rights of Landlord (for the purposes of
this paragraph (b), the "Preceding Landlord") under this Lease,
whether through possession or foreclosure action or delivery of a
new lease or deed, or otherwise, then Tenant shall attorn to and
recognize such party (herein called "Successor Landlord") so
succeeding to the Preceding Landlord's rights as Tenant's
landlord under this Lease and, upon such Successor Landlord's
request, Tenant shall promptly execute and deliver any instrument
that such Successor Landlord may reasonably request to evidence
such attornment provided that such Successor Landlord gives
Tenant a written agreement to accept Tenant's attornment and
recognizes Tenant's rights under this Lease (subject to the
qualifications) hereinafter set forth). Upon such attornment,
this Lease shall continue in full force and effect as a direct
lease between the Successor Landlord and Tenant upon all of the
terms, conditions and covenants as are set forth in this Lease,
except that the Successor Landlord (unless formerly the landlord
under this Lease or its nominee or designee) shall not be (a)
liable in any way to Tenant for any act or omission, neglect or
default on the part of the Preceding Landlord under this Lease,
(b) responsible for any monies owing by or on deposit with the
Preceding Landlord to the credit of Tenant (except for the
Security Deposit to the extent that such Security Deposit is
actually received by and is in possession of the Successor
Landlord, which shall include the delivery of the Letter under
the provisions of Section 13.8 of this Lease), (c) subject to any
counterclaim or bound by any modification of this Lease
subsequent to such Superior Mortgage or Lease which was not
approved in writing by the Superior Mortgagee or Superior Lessor,
or by any previous prepayment of Annual Fixed Rent or Additional
Rent for more than one (1) month which was not approved in
writing by the Superior Landlord's interest in the Property and
the rents, income, receipts, revenues, issues and profits issuing
from such Property, (f) responsible for the performance of any
work to be done by the Preceding Landlord under this Lease to
render the Premises ready for occupancy by the Tenant, (g)
required to remove any person occupying the Premises or any part
thereof, except if such person claims by through or under the
Successor Landlord.
SECTION 13
Miscellaneous Provisions
Section 13.1. Notices from One Party to the Other. Whenever,
by the terms of this Lease, notices, consents or approvals shall
or may by given either to Landlord or to Tenant, such notices,
consents or approvals shall be in writing and shall be delivered
in hand, sent by registered or certified mail, return receipt
requested, postage prepaid or sent by an overnight express
courier service which provides evidence of delivery or attempted
delivery;
If intended for Landlord, delivered or addressed to
Landlord at the Original Address of Landlord (or to such other
address as may from time to time hereafter be designated by
Landlord by like notice).
If intended for Tenant, delivered or addressed to
Tenant at the Original Address of Tenant until the Commencement
Date and thereafter to the Premises (or to such other address or
addresses as may from time to time hereafter be designated by
Tenant by like notice).
All such notices shall be effective when delivered or
tendered for delivery at the address to which the same were sent.
Section 13.2. Lease Not to be Recorded; Notice of
Lease. Tenant agrees that it will not record this Lease. If the
Term of this Lease, including options, exceeds seven years,
Landlord and Tenant agree that, on the request of either, they
will enter and record a notice of lease in form reasonably
acceptable to both parties.
Section 13.3. Bind and Inure; Limitation of Landlord's
Liability. The obligations of this Lease shall run with the land,
and this Lease shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns.
No owner of the Lot shall be liable under this Lease except for
breaches of Landlord's obligations occurring while owner of the
Lot. The obligations of Landlord shall be binding upon the assets
of Landlord which comprise the Lot but not upon other assets of
Landlord. No individual, member, partner, trustee, stockholder,
officer, director, employee or beneficiary of Landlord shall be
personally liable under this Lease and Tenant shall look solely
to Landlord's interest in the Lot in pursuit of its remedies upon
an event of default hereunder, and the general assets of Landlord
and its members, partners, trustees, stockholders, officers,
employees or beneficiaries of Landlord shall not be subject to
levy, execution or other enforcement procedure for the
satisfaction of the remedies of Tenant.
Section 13.4. Acts of God. In any case where either party
hereto is required to do any act, delays caused by or resulting
from acts of God, war, civil commotion, fire, flood or other
casualty, labor difficulties, shortages of labor, materials or
equipment, government regulations, unusually severe weather, or
other causes beyond such party's reasonable control shall not be
counted in determining the time during which work shall be
completed, whether such time be designated by a fixed date, a
fixed time or a "reasonable time", and such time shall be deemed
to be extended by the period of such delay.
Section 13.5. Landlord's Default. Landlord shall not be
deemed to be in default in the performance of any of its
obligations hereunder unless it shall fail to perform such
obligations and unless within thirty (30) days after notice from
Tenant to Landlord specifying such default Landlord has not
commenced diligently to correct the default so specified or has
not thereafter diligently pursued such correction to completion.
Tenant shall have no right, for any default by Landlord, to
offset or counterclaim against any rent due hereunder. The
provisions contained in this paragraph shall not affect any of
Tenant's rights to terminate this Lease under Section 3.7 of this
Lease.
Section 13.6. Brokerage. Landlord shall pay a brokerage
commission to Fallon, Xxxxx & X'Xxxxxx, Inc. for the brokerage
services rendered in connection with this Lease. Tenant and
Landlord warrant and represent to the other that neither has had
any dealings with any broker or agent in connection with this
Lease other than Fallon, Xxxxx & X'Xxxxxx, Inc. Tenant and
Landlord agree to defend with counsel reasonably approved by the
other, hold harmless and indemnify the other from and against any
and all cost, expense or liability for any compensation,
commissions and charges which may be asserted against the other
as a result of the other's breach of this warranty.
Section 13.7. Miscellaneous. This Lease shall be governed by
and construed in accordance with the laws of the Commonwealth of
Massachusetts. There are no prior oral or written agreements
between Landlord and Tenant affecting this Lease.
Section 13.8. Security Deposit. In order to provide
security against Tenant's default under Section 11.1(a) of the
Lease (a "Monetary Default"), Tenant shall furnish Landlord on
the Escrow Release Date with, and shall maintain in force and
effect throughout the Term of this Lease, an irrevocable "clean"
Letter of Credit which may provide for multiple draws, reductions
and reinstatement of the stated amounts (hereinafter together
with any renewal or substitution thereof in accordance with the
provisions hereof referred to as "Letter") or cash ("Cash") in an
amount equal to the "Applicable Amount" (as said term is
hereinafter defined) from time to time required hereunder in the
case of a Letter issued by Fleet Bank or a similar financial
institution ("Issuer") in the greater Boston, Massachusetts area
which is approved and accepted by Landlord (an "Approved
Issuer"). Landlord shall deliver the Security Deposit to the
holder of any first mortgage encumbering the Property and the
Security Deposit will be held by the holder of any mortgage
encumbering the Property for and during the Term and shall be
returned to Tenant, within thirty (30) days after the expiration
of the Term of this Lease provided there exists no Monetary
Default. As used herein, the term "Applicable Amount" shall mean
(i) $750,000.00 beginning on the Escrow Release Date through the
end of the 36th full calendar month immediately following the
Commencement Date, (ii) provided that the "4th Lease Year
Conditions" (as hereinafter defined are completely satisfied,
$375,000.00 during months 37 through 72 of the Term, (iii)
provided that the "7th Lease Year Conditions") (as hereinafter
defined) are completely satisfied, $187,500.00 for the remainder
of the Term of this Lease. As used herein, the term "4th Lease
year Conditions" shall mean that at the commencement of the
fourth (4th) lease year of the Term of this Lease, based on a
review of either Tenant's most recent 10Q or 10K statements filed
with the Security Exchange Commission, Tenant has $10,000,000.00
in unrestricted cash, cash equivalents and marketable securities
on hand and a "Current Assets" to "Current Liabilities", as said
terms are hereinafter defined, ratio of 2.0:1.0. The term "7th
Lease Year Conditions" shall mean that at the commencement of the
seventh (7th) lease year of the Term of this Lease, Tenant has
$10,000,000.00 in unrestricted cash, cash equivalents and
marketable securities on hand and a "Current Assets" to "Current
Liabilities", as said terms are hereinafter defined, ratio of
2.0:1.0. As used herein, the term "Current Assets" shall mean:
unrestricted cash, cash equivalents, marketable securities,
accounts receivable, inventories, prepaid expenses and other
current assets under generally accepted accounting practices.
"Current Liabilities" shall mean: accounts payable, accrued
royalties, accrued professional fees, accrued incentive
compensation, accrued restructuring costs, current portion of
deferred revenue, current maturities of long term debt and other
accrued expenses under generally accepted accounting practices.
Tenant shall have the right to call upon Landlord to apply
all or any part of the Security Deposit to cure any Monetary
Default. If all or any part of the Security Deposit is applied
to cure the Monetary Default, Tenant shall within ten (10) days
from any request by Landlord restore the Security Deposit to the
Applicable Amount, and notwithstanding the occurrence of a
Monetary Default, Tenant shall not be deemed in default hereunder
unless and until Tenant shall fail to restore the amount of the
Security Deposit.
The Security Deposit shall be delivered by Landlord to
Landlord's successor in interest under the Lease and upon any
such delivery and the acknowledgment of such successor that such
successor holds the Security Deposit under the terms and
conditions of the Lease, Tenant shall release Landlord herein
named of any and all liability with respect to the Security
Deposit, its application and return.
The Letter shall be addressed to and for the benefit of the
Landlord under this Lease from time to time and be in form and
substance satisfactory to Landlord in its reasonable discretion.
In the event of a Monetary Default by Tenant under this Lease,
Landlord may draw upon an amount necessary to cure the Monetary
Default upon certification by Landlord to the Issuer that
Landlord is entitled to apply all or any part of the proceeds of
the Letter to the extent required to cure the Monetary Default.
In the event of any Monetary Default by Tenant under this
Lease, Landlord shall provide Tenant with two (2) Business Days
written notice prior to drawing down on the Letter. In the event
of any Monetary Default by Tenant under this Lease, if Landlord
applies any part of the proceeds of the Letter or the Cash to
cure any default of Tenant, Tenant shall, upon demand, cause the
Letter or the Cash to be replenished and reinstated to the extent
of the amount so drawn upon and applied in order that Landlord
shall, at all times, have the full Applicable Amount of the
Letter or the Cash available for the purposes hereof during the
Term of this Lease. The Letter shall, in each instance, and for
each year of the Term of this Lease, be in effect and, at
Tenant's sole cost and expense, be renewed by Tenant and
decreased to the required Applicable Amount in no event later
than sixty (60) days prior to its date of expiration. Tenant's
failure to maintain the Letter in force and effect in the
Applicable Amounts during the periods of time required hereunder
shall, if such failure continues for more than ten (10) days
after notice thereof from Landlord, constitute a default under
this Lease. If, on or before the sixtieth (60th) day prior to
the expiration date of a Letter, Tenant shall have failed to
deliver to Landlord an original fully executed renewal or
extension of the Letter (or a substitute letter of credit from an
Approved Issuer), in each case, having a term of at least one
year and such failure shall continue for more than ten (10) days
after Landlord has given Tenant notice of such failure, Landlord,
at its option, may, but shall not be required to without further
notice to Tenant, draw down upon the Letter in its entirety in
which event Landlord may, in addition to all other rights and
remedies which it may have on account of such default, treat all
sums drawn under such Letter as a Cash Security Deposit governed
by and to be applied and/or retained by Landlord pursuant to the
provisions of this paragraph. All references herein to the
Letter shall also mean and include all renewals and replacements
thereof and all modifications and extensions thereof. Any
renewal, extension or substitution of a Letter shall be in form
and substance satisfactory to Landlord, in its reasonable
discretion, and shall be issued by an Approved Issuer. Landlord
will not unreasonably delay or withhold approval of the form of
any substitute Letter which is in the same form as that
previously approved by Landlord. If the Property is sold and if
the purchaser and seller together request in writing that Tenant
obtain a modification to a Letter designating the purchaser as
the "beneficiary" thereunder in substitution for the then named
beneficiary, Tenant agrees to promptly obtain and deliver such
amendment to such purchaser at purchaser's sole cost and expense.
Tenant hereby agrees that all costs and expenses involved in
obtaining and maintaining the Letters contemplated by this
paragraph shall be borne solely and exclusively by Tenant.
Notwithstanding anything to the contrary contained herein, if
Tenant fails to remove Tenant's Removable Property as required
hereunder at such time as Tenant surrenders and yields up its
right and interest in the Premises, then Landlord shall have the
right to draw down all or any portion of the Security Deposit
necessary to cover the costs and expenses associated with the
removal of Tenant's Removable Property.
Section 13.9. Park Common Expenses.
(a) Tenant shall pay to Landlord as Additional Rent monthly
with each payment of Annual Fixed Rent an amount equal to one
twelfth (1/12th) of the annual amount of the "Lot's Allocable
Share" (as defined in Section 13.9(b))of the "Park Common
Expenses" (as said term is hereinafter defined). As used herein,
the term "Park Common Expenses" shall mean "Common Expenses" as
said term is defined in the Park Covenants; provided, however,
the term "Park Common Expenses" shall not include any costs
relating to the remediation of any hazardous materials on the Lot
and the Leasehold Parking Area in connection with closure of the
landfill on the Landfill Lot. Landlord shall use diligent
efforts to cause the owner of the Park Common Property to
maintain and repair the Park Common Property insofar as it
services the Premises in good operating condition and repair. As
used herein, the term "Park Common Property" shall mean the
"Infrastructure Easement Areas" and the "Common Land", as such
terms are defined in the Park Covenants.
(b) As used in this Lease, the term "Lot's Allocable Share"
shall mean a percentage equal to that percentage which is
attributable to the Premises under the Park Covenants in
determining the Premises' share of Common Expenses under the Park
Covenants but in no event shall the Lot's Allocable Share ever
exceed ten (10%) percent.
(c) At the beginning of every calendar year and at the
commencement of the Term, Landlord shall deliver to Tenant its
good faith estimate of the expenses (i.e. the Park Common
Expenses) referenced in this Section 13.9 for such year, and
Tenant shall make monthly payments based on that amount. As soon
as practicable after the end of each calendar year, Landlord
shall render a statement (the "Park Common Expense Statement")
showing for the preceding calendar year or fraction thereof, as
the case may be, the actual annual expenses for such matters for
such year or fraction, and thereupon any balance owed by Tenant
or excess paid by Tenant under this Section shall be paid to
Landlord or credited to Tenant, as the case may be, on the next
rent payment date. Upon request of Tenant made within ninety
(90) days after delivery of the Park Common Expense Statement,
Tenant shall have the right to audit Landlord's books and records
with respect to such Park Common Expense Statement. If such
audit discloses an overstatement of Park Common Expenses of more
than five (5%) percent, Landlord shall reimburse Tenant for
Tenant's reasonable out-of-pocket expenses for such audit.
Landlord shall credit to Tenant the amount of any overpayment of
Park Common Expenses by Tenant against subsequent obligations of
Tenant with respect to Park Common Expenses (or refund such
overpayment if the Term of this Lease has ended and Tenant has no
further obligation to Landlord).
Section 13.10. Leasehold Parking Area. It is expressly
understood and agreed by and between Landlord and Tenant that
this Lease, as to the Leasehold Parking Area, is a sublease and
is subject and subordinate to the Ground Lease with respect to
the Leasehold Parking Area and that no right, power or privilege
granted to Tenant hereunder with respect to the Leasehold Parking
Area may be exercised or enjoyed by Tenant and no term, covenant
or condition of this Lease insofar as it relates to the Leasehold
Parking Area benefiting Tenant shall be operative if and to the
extent that such exercise, enjoyment or operation would not be
permitted by or would violate or be in conflict with any term,
covenant or condition of the Ground Lease. Without limiting the
generality of the foregoing, it is expressly understood and
agreed that all rights of Tenant in and to any eminent domain
awards in any way related to the Leasehold Parking Area shall be,
and is hereby expressly made, subject and subordinate to the
rights of the Landlord under the Ground Lease. Landlord
covenants and agrees that Landlord will not violate any of the
terms, covenants or conditions of the Ground Lease. The cost of
any and all insurance required to be carried by Landlord under
the Ground Lease or which Landlord carries in connection with the
Ground Lease shall be included in the costs payable by Tenant as
Additional Rent under this Lease. From and after the Term
Commencement Date and to the maximum extent, this agreement may
be made effective according to law, Tenant agrees to indemnify
and save harmless the Town of Framingham, as landlord under the
Ground Lease (the "Ground Lease Landlord") from and against all
claims of whatever nature arising from any act, omission or
negligence of Tenant, Tenant's contractors, licensees, agents,
servants, employees or customers, or anyone claiming by, through
or under Tenant so long as Tenant or any occupant claiming under
Tenant is in occupancy or is using any part of the entire
Leasehold Parking Area where such accident, injury or damage
results or is claimed to have resulted from any act, omission or
negligence on the part of Tenant or Tenant's contractors,
licensees, agents, servants, employees or customers or anyone
claming by, through or under Tenant. The foregoing indemnity and
hold harmless agreement shall include indemnity against all costs
and expenses and liabilities incurred in or in connection with
any claim or proceeding brought thereon and the defense thereof
with counsel acceptable to the Ground Lease Landlord. To the
maximum extent, this agreement may be made effective according to
law, Tenant agrees to use and occupy the Leasehold Parking Area
and any other part of the entire Leasehold Parking Area which the
Tenant is permitted to use hereunder at Tenant's own risk and the
Ground Lease Landlord shall have no responsibility or liable for
any loss or damage to fixtures or other personal property of
Tenant or any person claiming by, through or under Tenant.
Section 13.11. Hazardous Materials. Tenant shall not
(either with or without negligence) cause or permit the escape,
disposal, release or threat of release of any biologically or
chemically active or other Hazardous Materials (as said term is
hereafter defined) on, in, upon or under the Property or the
Premises except in compliance with all laws, rules, regulations,
ordinances and codes, including, without limitation, the
Environmental Laws. Tenant shall not allow the generation,
storage, use, disposal or transfer of such Hazardous Materials in
any manner not sanctioned by law or by the highest standards
prevailing in the industry for the generation, storage, use,
disposal and transfer of such Hazardous Materials, nor allow to
be brought into the Property any such Hazardous Materials except
for those certain chemicals used in the ordinary course of
Tenant's business and more particularly identified on Exhibit O
attached hereto. Tenant shall update the list of Tenant's
Chemicals on an annual basis and/or as Landlord reasonably
requests. If any lender or governmental agency shall ever
require testing to ascertain whether or not there has been any
release of Hazardous Materials, then the reasonable costs thereof
shall be reimbursed by Tenant to Landlord upon demand as
additional charges but only if such requirement applies to the
Premises or may be the result of the acts or omissions of Tenant.
In addition, Tenant shall execute affidavits, representations and
the like, from time to time, at Landlord's request concerning
Tenant's best knowledge and belief regarding the presence of
Hazardous Materials on the Premises.
The Tenant shall, at its own expense, remove, clean up,
remedy and dispose of (in compliance with all applicable laws,
rules and regulations) all Hazardous Materials generated or
released by the Tenant or its officers, directors, employees,
contractors, servants, invitees, agents or any other person
acting under Tenant during the Term of this Lease (or during such
term as the Tenant is in occupancy or possession of any part of
the Premises, the Building or the Property) at or from the
Premises, the Building or the Property in compliance with all
Environmental Laws (as said term is hereafter defined) and
further, shall remove, clean up, remedy and dispose of all
Hazardous Materials located at, upon, under, within or in the
Premises, the Building or the Property generated by or resulting
from its operations, activities or processes during the term of
this Lease (or such other periods of time as the Tenant may be in
occupancy or in possession of the Premises or any portion of the
Property or Building), in compliance with all Environmental Laws.
In performing its obligations hereunder, the Tenant shall use
best efforts to avoid interference with the use and enjoyment of
the Building and the Property by other tenants and occupants
thereof. The provisions hereof shall survive expiration or
termination of this Lease.
The Tenant shall indemnify, defend and save harmless the
Landlord and its members, officers, directors, shareholders,
employees, contractors, servants, invitees, representatives and
agents from and against all loss, costs, damages, claims,
proceedings, demands, liabilities, penalties, fines and
expenses, including without limitation, reasonable fees and
costs for attorneys' fees, consultants' fees, litigation costs
and clean-up costs asserted
against or incurred by the Landlord, its members, officers,
directors, shareholders, employees, contractors, servants,
invitees representatives or agents at any time by reason of or
arising out of (i) any release or threat of release of any
Hazardous Materials at, in, upon, under or from the Premises,
the Building or the Property where such release or threat of
release is the result of or alleged to result from the acts or
omissions of the Tenant or its agents, servants, employees,
contractors or invitees, or (ii) any violation or alleged
violation of any Environmental Laws governing Hazardous
Materials where such violation or alleged violation is the
result of or alleged to result from the acts or omissions of the
Tenant or its agents, servants, employees, contractors,
invitees, or any other person acting under Tenant. The
indemnities set forth in this Section shall survive expiration
or termination of this Lease.
In addition to the requirements set forth above, the Tenant
shall, within ten (10) days of receipt, provide to the Landlord
copies of any inspection or other reports, correspondence,
documentation, orders, citations, notices, directives, or suits
from or by any governmental authority or insurer regarding non-
compliance with or potential or actual violation of
Environmental Laws. The Landlord hereby expressly reserves the
right to enter the Premises and all other portions of the
Building and the Property in order to perform inspections and
testing of the air, soil and groundwater for the presence or
existence of Hazardous Materials.
As used herein, the term "Hazardous Materials" shall mean
and include, without limitation, any material or substance which
is (i) petroleum, (ii) asbestos, (iii) designated as a
"hazardous substance" pursuant to Section 311 of the Federal
Water Pollution Control Act, 33 U.S.C. SS 1251 et seq. (33
U.S.C. SS 1321) or listed in SS 307 of the Federal Water
Pollution Control Act (33 U.S.C. SS 1317), (iv) defined as a
"hazardous waste" pursuant to Section 1004 of the Resource
Conservation and Recovery Act, 42 U.S.C. SS 6901 et seq. (42
U.S.C. SS 6903), (v) defined as a "hazardous substance" pursuant
to Section 101 of the Comprehensive Environmental Response,
Compensation, and Liability Act, 42 U.S.C. SS 9601 et seq. (42
U.S.C. SS 9601), as amended and regulations promulgated
thereunder, or (vi) defined as "oil" or a "hazardous waste", a
"hazardous substance", a "hazardous material" or a "toxic
material" under any other law, rule or regulation applicable to
the Property, including, without limitation, Chapter 21E of the
Massachusetts General Laws, as amended and the regulations
promulgated thereunder. As used herein, the term "Environmental
Laws" shall mean, without limitation, each and every law, rule,
order, statute or regulation described above in this Section,
together with (i) any amendments thereto, or regulations
promulgated thereunder and (ii) any other laws pertaining to the
protection of the environment or governing the use, release,
storage, generation or disposal of Hazardous Materials, whether
now existing or hereafter enacted or promulgated.
Section 13.12. Landlord's Holdover Contribution. If the
Commencement Date should fail to occur on or before the
Anticipated Term Commencement Date as such date may be extended
by the Force Majeure Extension, then Landlord shall pay
Landlord's Holdover Contribution to Tenant on the first day of
each month in arrears commencing on the first day of the month
next succeeding the Anticipated Term Commencement Date, as
extended; provided, however, in no event shall Landlord have any
obligation to pay any payment of Landlord's Holdover Contribution
unless no default of Tenant shall have occurred and be continuing
under this Lease. Landlord's obligation to continue to pay
Landlord's Holdover Contribution to Tenant shall cease upon the
earlier to occur of the Commencement Date or the date of any
termination of this Lease.
WITNESS the execution hereof under seal as of the day and
year first above written.
Landlord: NDNE 9/90 CORPORATE CENTER LLC
By: ________________________
Its: ________________________
Tenant: AQUILA BIOPHARMACEUTICALS, INC.
By: ________________________
Its: ________________________
NDNE0023/15
September 26, 1997
{A:\1STAMEN&.;1}- -
FIRST AMENDMENT TO LEASE
THIS AGREEMENT made as of this _____ day of _________________, 1997,
by and between NDNE 9/90 CORPORATE CENTER LLC, a Massachusetts limited
liability company, having an address c/o National Development of New
England, 0000 Xxxxxxxxxx Xxxxxx, Xxxxxx Xxxxx Xxxxx, Xxxxxxxxxxxxx 00000
(the "Landlord") and AQUILA BIOPHARMACEUTICALS, INC., a Delaware
corporation, having an address at 000 Xxxxxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxxxxxx 00000 (the "Tenant").
W I T N E S S E T H:
WHEREAS, the Landlord and the Tenant entered into that certain Lease
(the "Lease") dated as of September 19, 1997 with an effective date as of
the "Escrow Release Date" (as said term is defined in the Lease), which
relates to space in the Building (as said term is defined in the Lease);
and
WHEREAS, the Landlord and the Tenant now wish to amend the Lease, all
as more particularly hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing premises and the sum
of Ten ($10.00) Dollars and other good and valuable consideration, the
receipt and sufficiency whereof are hereby acknowledged, the Landlord and
the Tenant do hereby covenant and agree as follows:
1. Any capitalized terms used herein, and not otherwise defined
herein, shall have the meanings ascribed to said terms in the Lease.
2. The definition of "Business Hours" appearing on Page 2 of the
Lease is hereby amended by deleting the word "Sundays" therefrom and, in
replacement thereof, adding the words "on Saturdays" to the Lease.
3. The following sentences appearing in Section 3.7(a) on Pages
13 and 14 of the Lease are hereby deleted in their entirety:
"If, on December 15, 1997, all of the Release Conditions are not
completely satisfied or Landlord has not commenced construction by
placement of forms for the foundation of the Building on the Lot,
then, at Tenant's election, Tenant shall have the right (i) to
terminate this Lease by written notice to Landlord within three (3)
Business Days of December 15, 1997 or (ii) take thirty (30) days to
evaluate its situation and, on January 15, 1998, Tenant shall have
the right to terminate this Lease by written notice to Landlord
within three (3) Business Days of January 15, 1998. Any failure of
Tenant to exercise its rights of termination within three (3)
Business Days of December 15, 1997 or January 15, 1998, as the case
may be, shall constitute a waiver of such rights of termination on
such dates."
In replacement thereof, the following sentences are hereby added
to the Lease:
"If, on January 15, 1998, all of the Release Conditions are not
completely satisfied or Landlord has not commenced construction by
placement of forms for the foundation of the Building on the Lot,
then, at Tenant's election, Tenant shall have the right to terminate
this Lease by written notice to Landlord within three (3) Business
Days of January 15, 1998. Any failure of Tenant to exercise its
right of termination within three (3) Business Days of January 15,
1998 shall constitute a waiver of such right of termination."
4. The following rule and regulation is hereby added to Exhibit F -
Rules and Regulations attached to and made a part of the Lease:
"33. Each tenant, at its sole cost and expense, shall submit an
application for membership in the MetroWest Transportation Management
Association and shall become a member of said Association; provided,
however, Tenant's obligation is subject to Tenant's approval of (i)
all costs and expenses associated with said application and
membership and (ii) the organizational goals of said Association."
5. Except as amended by this First Amendment to Lease, all the
terms, provisions, covenants, agreements, conditions, representations and
warranties contained in the Lease are hereby affirmed and ratified.
6. This First Amendment to Lease shall be binding upon and shall
inure to the benefit of the Landlord and the Tenant and their respective
successors and assigns.
IN WITNESS WHEREOF, the parties hereto have caused this First
Amendment to Lease to be duly executed as of the day and year first above
written.
Landlord: NDNE 9/90 CORPORATE CENTER LLC
By: NDNE Properties, Inc.
Its: Manager
By: _______________________________________
Its: _______________________________________
Tenant: AQUILA BIOPHARMACEUTICALS, INC.
By: _______________________________________
Its: _______________________________________
NDNE 23
{A:\2NDAMEN&.;1}- -
SECOND AMENDMENT TO LEASE
THIS AGREEMENT made as of this 14th day of January, 1998, by and
between NDNE 9/90 CORPORATE CENTER LLC, a Massachusetts limited liability
company, having an address c/o National Development of New England, 0000
Xxxxxxxxxx Xxxxxx, Xxxxxx Xxxxx Xxxxx, Xxxxxxxxxxxxx 00000 (the "Landlord")
and AQUILA BIOPHARMACEUTICALS, INC., a Delaware corporation, having an
address at 000 Xxxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000 (the
"Tenant").
W I T N E S S E T H:
WHEREAS, the Landlord and the Tenant entered into that certain Lease
dated as of September 19, 1997 with an effective date as of the "Escrow
Release Date" (as said term is defined in the "Lease", as hereinafter
defined), as amended by that certain First Amendment to Lease dated as of
December 17, 1997 by and between the Landlord and the Tenant (the Lease as
so amended is hereinafter called the "Lease"), which relates to space in
the Building (as said term is defined in the Lease); and
WHEREAS, the Landlord and the Tenant now wish to amend the Lease, all
as more particularly hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing premises and the sum
of Ten ($10.00) Dollars and other good and valuable consideration, the
receipt and sufficiency whereof are hereby acknowledged, the Landlord and
the Tenant do hereby covenant and agree as follows:
1. Any capitalized terms used herein, and not otherwise defined
herein, shall have the meanings ascribed to said terms in the Lease.
2. The following sentences appearing in Section 3.7(a) on Pages 13
and 14 of the Lease are hereby deleted in their entirety:
"If, on January 15, 1998, all of the Release Conditions are not
completely satisfied or Landlord has not commenced construction by
placement of forms for the foundation of the Building on the Lot,
then, at Tenant's election, Tenant shall have the right to terminate
this Lease by written notice to Landlord within three (3) Business
Days of January 15, 1998. Any failure of Tenant to exercise its
right of termination within three (3) Business Days of January 15,
1998 shall constitute a waiver of such right of termination."
In replacement thereof, the following sentences are hereby added
to the Lease:
"If, on January 30, 1998, all of the Release Conditions are not
completely satisfied or Landlord has not commenced construction by
placement of forms for the foundation of the Building on the Lot,
then, at Tenant's election, Tenant shall have the right to terminate
this Lease by written notice to Landlord within three (3) Business
Days of January 30, 1998. Any failure of Tenant to exercise its
right of termination within three (3) Business Days of January 30,
1998 shall constitute a waiver of such right of termination."
3. Except as amended by this Second Amendment to Lease, all the
terms, provisions, covenants, agreements, conditions, representations and
warranties contained in the Lease are hereby affirmed and ratified.
4. This Second Amendment to Lease shall be binding upon and shall
inure to the benefit of the Landlord and the Tenant and their respective
successors and assigns.
IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to Lease to be duly executed as of the day and year first above
written.
Landlord: NDNE 9/90 CORPORATE CENTER LLC
By: NDNE Properties, Inc.
Its: Manager
By: _______________________________________
Its: _______________________________________
Tenant: AQUILA BIOPHARMACEUTICALS, INC.
By: _______________________________________
Its: _______________________________________
NDNE 23
{A:\3RDAMEN&.;1}- -
THIRD AMENDMENT TO LEASE
THIS AGREEMENT made as of this 3rd day of February, 1998, by and
between NDNE 9/90 CORPORATE CENTER LLC, a Massachusetts limited liability
company, having an address c/o National Development of New England, 0000
Xxxxxxxxxx Xxxxxx, Xxxxxx Xxxxx Xxxxx, Xxxxxxxxxxxxx 00000 (the "Landlord")
and AQUILA BIOPHARMACEUTICALS, INC., a Delaware corporation, having an
address at 000 Xxxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000 (the
"Tenant").
W I T N E S S E T H:
WHEREAS, the Landlord and the Tenant entered into that certain Lease
dated as of September 19, 1997 with an effective date as of the "Escrow
Release Date" (as said term is defined in the Lease), as amended by that
certain First Amendment to Lease dated December 17, 1997 by and between the
Landlord and the Tenant, and as further amended by that certain Second
Agreement to Lease dated as of January 14, 1998 by and between the Landlord
and the Tenant (the Lease as so amended is hereinafter called the "Lease")
which relates to space in the Building (as said term is defined in the
Lease); and
WHEREAS, the Landlord and the Tenant now wish to amend the Lease, all
as more particularly hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing premises and the sum
of Ten ($10.00) Dollars and other good and valuable consideration, the
receipt and sufficiency whereof are hereby acknowledged, the Landlord and
the Tenant do hereby covenant and agree as follows:
1. Any capitalized terms used herein, and not otherwise defined herein,
shall have the meanings ascribed to said terms in the Lease.
2. The following sentences appearing in Section 3.7(a) on Pages 13 and
14 of the Lease are hereby deleted in their entirety:
"If, on January 30, 1998, all of the Release Conditions are not
completely satisfied or Landlord has not commenced construction by
placement of forms for the foundation of the Building on the Lot,
then, at Tenant's election, Tenant shall have the right to terminate
this Lease by written notice to Landlord within three (3) Business
Days of January 30, 1998. Any failure of Tenant to exercise its
right of termination within three (3) Business Days of January 30,
1998 shall constitute a waiver of such right of termination."
In replacement thereof, the following sentences are hereby added
to the Lease:
"If, on February 27, 1998, all of the Release Conditions are not
completely satisfied or Landlord has not commenced construction by
placement of forms for the foundation of the Building on the Lot,
then, at Tenant's election, Tenant shall have the right to terminate
this Lease by written notice to Landlord within three (3) Business
Days of February 27, 1998. Any failure of Tenant to exercise its
right of termination within three (3) Business Days of February 27,
1998 shall constitute a waiver of such right of termination."
3. Except as amended by this Third Amendment to Lease, all the terms,
provisions, covenants, agreements, conditions, representations and
warranties contained in the Lease are hereby affirmed and ratified.
4. This Third Amendment to Lease shall be binding upon and shall inure to
the benefit of the Landlord and the Tenant and their respective successors
and assigns.
IN WITNESS WHEREOF, the parties hereto have caused this Third
Amendment to Lease to be duly executed as of the day and year first above
written.
Landlord: NDNE 9/90 CORPORATE CENTER LLC
By: NDNE Properties, Inc.
Its: Manager
By: _______________________________________
Its: _______________________________________
Tenant: AQUILA BIOPHARMACEUTICALS, INC.
By: _______________________________________
Its: _______________________________________
NDNE 23
{A:\4THAMEN&.;1}- -
FOURTH AMENDMENT TO LEASE
THIS AGREEMENT made as of this ____ day of February, 1998, by and
between NDNE 9/90 CORPORATE CENTER LLC, a Massachusetts limited liability
company, having an address c/o National Development of New England, 0000
Xxxxxxxxxx Xxxxxx, Xxxxxx Xxxxx Xxxxx, Xxxxxxxxxxxxx 00000 (the "Landlord")
and AQUILA BIOPHARMACEUTICALS, INC., a Delaware corporation, having an
address at 000 Xxxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000 (the
"Tenant").
W I T N E S S E T H:
WHEREAS, the Landlord and the Tenant entered into that certain Lease
dated as of September 19, 1997 with an effective date as of the "Escrow
Release Date" (as said term is defined in the Lease), as amended by that
certain First Amendment to Lease dated December 17, 1997 by and between the
Landlord and the Tenant, as further amended by that certain Second
Amendment to Lease dated as of January 14, 1998 by and between the Landlord
and the Tenant, and as further amended by that certain Third Amendment to
Lease dated as of February 3, 1998 by and between the Landlord and the
Tenant (the Lease as so amended is hereinafter called the "Lease") which
relates to space in the Building (as said term is defined in the Lease);
and
WHEREAS, the Landlord and the Tenant now wish to amend the Lease, all
as more particularly hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing premises and the sum
of Ten ($10.00) Dollars and other good and valuable consideration, the
receipt and sufficiency whereof are hereby acknowledged, the Landlord and
the Tenant do hereby covenant and agree as follows:
1. Any capitalized terms used herein, and not otherwise defined herein,
shall have the meanings ascribed to said terms in the Lease.
2. The definition of "Premises" appearing on Page 1 of the Lease is
hereby amended by deleting the number "35,000" appearing in the fourth
line of said definition and, in replacement thereof, adding the number
"41,020" to the Lease.
3. The definition of "Annual Fixed Rent" appearing on Page 2 of the
Lease is hereby deleted in its entirety and, in replacement thereof, the
following definition is hereby added to the Lease:
"Annual Fixed Rent (includes Annual Base Operating Costs and Annual Base
Real Estate Taxes):
Lease Years 1 - 4 inclusive: $877,007.60 per annum
Lease Years 5 - 8 inclusive: $938,537.60 per annum
Lease Years 9 - 12 inclusive: $1,000,067.60 per annum"
4. The definition of "Premises' Square Footage" appearing on Page 4 of
the Lease is hereby amended by deleting the number "35,000" appearing in
the first line of said definition and, in replacement thereof, adding the
number "41,020" to the Lease.
5. The definition of "Premises' Square Footage" appearing on Page 5 of
the Lease is hereby amended by deleting in their entirety, the following
sentences appearing as the last two sentences of said definition:
"After Tenant delivers to Landlord the Tenant's Plans and
Specifications, Landlord and Tenant shall remeasure the Premises. If the
Premises' Square Footage increases or decreases based upon the measurement
referred to in the preceding sentence, then Landlord and Tenant shall
enter into an amendment to this Lease for the purpose of restating the
rentable square feet of the Premises, the Annual Fixed Rent, the Premises'
Square Footage, the Tenant's Proportionate Share and attaching Exhibit A -
Plan of Premises and Exhibit J - Plan of First Offer Space."
6. The definition of "Rentable Square Feet in the Building" is hereby
amended by deleting the number "120,000" appearing in the first line of
said definition and, in replacement thereof, adding the number "116,452"
to the Lease.
7. The definition of "Tenant's Proportionate Share" appearing on Page 5
of the Lease is hereby amended by deleting the words and figures "Twenty
Nine and Seventeen Hundredths (29.17%) Percent" from said definition and,
in replacement thereof, adding the words and figures "Thirty Five and
Twenty Two Hundredths (35.22%) Percent" to the Lease.
8. The following sentences appearing in Section 3.7(a) on Pages 13 and
14 of the Lease are hereby deleted in their entirety:
"If, on February 27, 1998, all of the Release Conditions are not
completely satisfied or Landlord has not commenced construction by
placement of forms for the foundation of the Building on the Lot,
then, at Tenant's election, Tenant shall have the right to terminate
this Lease by written notice to Landlord within three (3) Business
Days of February 27, 1998. Any failure of Tenant to exercise its
right of termination within three (3) Business Days of February 27,
1998 shall constitute a waiver of such right of termination."
In replacement thereof, the following sentences are hereby added
to the Lease:
"If, on March 15, 1998, all of the Release Conditions are not
completely satisfied or Landlord has not commenced construction by
placement of forms for the foundation of the Building on the Lot, then, at
Tenant's election, Tenant shall have the right to terminate this Lease by
written notice to Landlord within three (3) Business Days of March 15,
1998. Any failure of Tenant to exercise its right of termination within
three (3) Business Days of March 15, 1998 shall constitute a waiver of
such right of termination."
9. The following exhibits attached to this Fourth Amendment to Lease are
hereby added to the Lease as if originally attached to the Lease at the
time of the execution and delivery thereof:
Exhibit A - Plan of Premises
Exhibit J - Plan of First Offer Space
10. Tenant acknowledges and agrees that, as of the date hereof, Landlord
has yet to approve Exhibit E - Tenant's Plans and Specifications and
following Landlord's approval of said exhibit, Landlord shall attach said
exhibit to the Lease.
11. Except as amended by this Fourth Amendment to Lease, all the terms,
provisions, covenants, agreements, conditions, representations and
warranties contained in the Lease are hereby affirmed and ratified.
12. This Fourth Amendment to Lease shall be binding upon and shall inure
to the benefit of the Landlord and the Tenant and their respective
successors and assigns.
IN WITNESS WHEREOF, the parties hereto have caused this Fourth
Amendment to Lease to be duly executed as of the day and year first above
written.
Landlord: NDNE 9/90 CORPORATE CENTER LLC
By: NDNE Properties, Inc.
Its: Manager
By: _______________________________________
Its: _______________________________________
Tenant: AQUILA BIOPHARMACEUTICALS, INC.
By: _______________________________________
Its: _______________________________________
NDNE 234A
{A:\5THAMEN&.;1}- -
FIFTH AMENDMENT TO LEASE
THIS AGREEMENT made as of this 13th day of March, 1998, by and between
NDNE 9/90 CORPORATE CENTER LLC, a Massachusetts limited liability company,
having an address c/o National Development of New England, 0000 Xxxxxxxxxx
Xxxxxx, Xxxxxx Xxxxx Xxxxx, Xxxxxxxxxxxxx 00000 (the "Landlord") and AQUILA
BIOPHARMACEUTICALS, INC., a Delaware corporation, having an address at 000
Xxxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000 (the "Tenant").
W I T N E S S E T H:
WHEREAS, the Landlord and the Tenant entered into that certain Lease
dated as of September 19, 1997 with an effective date as of the "Escrow
Release Date" (as said term is defined in the Lease), as amended by that
certain First Amendment to Lease dated December 17, 1997 by and between the
Landlord and the Tenant, as further amended by that certain Second
Amendment to Lease dated as of January 14, 1998 by and between the Landlord
and the Tenant, as further amended by that certain Third Amendment to Lease
dated as of February 3, 1998 by and between the Landlord and the Tenant and
as further amended by that certain Fourth Amendment to Lease dated as of
February 27, 1998 by and between the Landlord and the Tenant (the Lease as
so amended is hereinafter called the "Lease") which relates to space in the
Building (as said term is defined in the Lease); and
WHEREAS, the Landlord and the Tenant now wish to amend the Lease, all
as more particularly hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing premises and the sum
of Ten ($10.00) Dollars and other good and valuable consideration, the
receipt and sufficiency whereof are hereby acknowledged, the Landlord and
the Tenant do hereby covenant and agree as follows:
1. The following sentences appearing in Section 3.7(a) on Pages 13 and
14 of the Lease are hereby deleted in their entirety:
"If, on March 15, 1998, all of the Release Conditions are not
completely satisfied or Landlord has not commenced construction by
placement of forms for the foundation of the Building on the Lot,
then, at Tenant's election, Tenant shall have the right to terminate
this Lease by written notice to Landlord within three (3) Business
Days of March 15, 1998. Any failure of Tenant to exercise its right
of termination within three (3) Business Days of March 15, 1998 shall
constitute a waiver of such right of termination."
In replacement thereof, the following sentences are hereby added
to the Lease:
"If, on March 31, 1998, all of the Release Conditions are not
completely satisfied or Landlord has not commenced construction by
placement of forms for the foundation of the Building on the Lot, then, at
Tenant's election, Tenant shall have the right to terminate this Lease by
written notice to Landlord within three (3) Business Days of March 31,
1998. Any failure of Tenant to exercise its right of termination within
three (3) Business Days of March 31, 1998 shall constitute a waiver of such
right of termination."
2. Except as amended by this Fifth Amendment to Lease, all the terms,
provisions, covenants, agreements, conditions, representations and
warranties contained in the Lease are hereby affirmed and ratified.
3. This Fifth Amendment to Lease shall be binding upon and shall inure to
the benefit of the Landlord and the Tenant and their respective successors
and assigns.
IN WITNESS WHEREOF, the parties hereto have caused this Fifth
Amendment to Lease to be duly executed as of the day and year first above
written.
Landlord: NDNE 9/90 CORPORATE CENTER LLC
By: NDNE 9/90, Inc.
Its: Manager
By: _______________________________________
Its: _______________________________________
Tenant: AQUILA BIOPHARMACEUTICALS, INC.
By: _______________________________________
Its: _______________________________________
NDNE 23
