Exhibit 10.1
LEASE
by and between
NDNE 9/90 CORPORATE CENTER LLC,
its successors and assigns
as Landlord and
GENZYME TRANSGENICS CORPORATION,
as Tenant
Dated as of: March 26, 1999
TABLE OF CONTENTS
SECTION 1 - Reference Data 1
Section 1.1 Reference Information .................
Section 1.2 Exhibits ..............................
SECTION 2 - Premises and Term 4
Section 2.1 Premises ..............................
Section 2.2 Term ..................................
Section 2.3 Appurtenant Rights and Reservations....
SECTION 3 - Commencement Date; Improvements 5
Section 3.1 Commencement Date .....................
Section 3.2 Construction of Building ..............
Section 3.3 Tenant Improvements; Tenant Plans .....
Section 3.4 Tenant Work ...........................
Section 3.5 General Provisions Applicable to.......
Tenant 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 11
Section 4.1 The Annual Rent .......................
SECTION 5 - Operating Cost Escalation 11
Section 5.1 Operating Cost Escalation .............
Section 5.2 Estimated Operating Cost
Escalation Payments ...................
Section 5.3 Park Expenses
Section 5.4 Audit Right
SECTION 6 - Real Estate Tax Escalation 14
Section 6.1 Real Estate Tax Escalation ............
Section 6.2 Estimated Real Estate Tax Escalation
Payments ..............................
65
Section 7.1 Tenant's Insurance ....................
Section 7.2 Requirements Applicable to Insurance...
Policies..............................
Section 7.3 Waiver of Subrogation .................
Section 7.4 Landlord's Insurance
SECTION 8 - Landlord's Covenants 16
Section 8.1 Quiet Enjoyment .......................
Section 8.2 Maintenance and Repair ................
Section 8.3 Electricity ...........................
Section 8.4. HVAC. .................................
Section 8.5 Cleaning ..............................
Section 8.6 Interruptions .........................
SECTION 9 - Tenant's Covenants 19
Section 9.1 Use ...................................
Section 9.2 Repair and Maintenance ...............
Section 9.3 Compliance with Law and Insurance
Requirements ..........................
Section 9.4 Tenant's Work .........................
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 25
Section 10.1 Termination ...........................
Section 10.2 Restoration ...........................
Section 10.3 Award .................................
SECTION 11 - Default 28
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 30
Section 12.1 Rights of Mortgage Holders ............
Section 12.2 Lease Subordinate......................
Section 12.3 UNUM Mortgage
SECTION 13 - Miscellaneous Provisions 32
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/Letter of Credit......
Section 13.9 Leasehold Lot..........................
Section 13.10 Americans With Disabilities Act........
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 March 26, 1999
Premises: That portion (shown as outlined on Exhibit A) of the Building
on the Lot known as and numbered 000 Xxxxxxxx Xxxxxxxxx in
Framingham, Massachusetts, consisting of approximately 12,468
rentable square feet on the fourth (4th) floor of the
Building.
Landlord: NDNE 9/90 Corporate Center LLC
Address of Landlord: 0000 Xxxxxxxxxx Xxxxxx
Xxxxxx Xxxxx Xxxxx, Xxxxxxxxxxxxx 00000
Tenant: Genzyme Transgenics Corporation
Original Address Five Mountain Road
of Tenant: Xxxxxxxxxx, XX 00000
Landlord's Construction Representative: Xxxx X. Paris
Tenant's Construction Representative: Xxxx Xxxxx
Anticipated Term Commencement Date: June 1, 1999
Commencement Date: As defined in Section 3.1.
Original Term: Seven (7) years beginning on the Term Commencement Date;
provided, however, if the Term Commencement Date is other than the first day of
a calendar month the, the Original Term shall expire on the last day of the
calendar month in which the seventh (7th) anniversary of the Term Commencement
Date shall fall.
Premises Square Footage: Approximately 12,468 rentable square feet as
determined in accordance with the Measurement Method.
Annual Fixed Rent:
Lease Year Annual Fixed Rent Monthly Payment
---------- ----------------- ---------------
(per annum)
-----------
1 and 2, inclusive $317,934.00 $26,494.50
3 and 4, inclusive $330,402.00 $27,533.50
5, 6 and 7, inclusive $342,870.00 $28,572.50
Lease Year or lease year: Each consecutive 12 calendar month period immediately
following the Commencement Date, but if the Commencement Date shall fall on
other than the first day of a calendar month, then such term shall mean each
consecutive twelve calendar month period commencing with the first day of the
first full calendar month of the Initial Term. The first lease year shall
include any partial month between the Commencement Date and the first day of the
first full calendar month immediately following the Commencement Date.
Annual Base Operating Costs: An amount equal to the Landlord's Operating Costs
for the Property during the calendar year January 1, 1999 through December 31,
1999.
Annual Base Real Estate Taxes: An amount equal to the Real Estate Taxes for the
Property applicable to the fiscal tax year July 1, 1999 to June 30, 2000.
Permitted Uses: General Office.
Public Liability Insurance Limit:
Bodily Injury Combined single limit of $2,000,000, or such
and Property Damage greater amount as reasonably required by Landlord
from time to time.
Tenant's Proportionate Share: Ten and 63/100ths (10.63%) Percent.
Broker: XX Xxxxxxxx Partners and Xxxxxx Xxxxx & X'Xxxxxx.
Security Deposit: Letter of Credit in the amount of $249,360.00. See Section
13.8.
Lot or Lots: The Fee Lot and the Leasehold Lot, as the same may be configured
and constituted from time to time.
Fee Lot: the lot or parcel of land on which the Building is or will be located
and known as Lot 8A as more particularly set forth in Exhibit B.
Leasehold Lot: Parcel 7A as described in Exhibit B on which the Leasehold
Parking Area is located.
Building: The approximately 117,290 rentable square foot building erected on the
Fee Lot by Landlord and all alterations and additions thereto and replacements
thereof. In the event that the total number of rentable square feet contained in
the Building shall increase due to any addition to the Building, then Tenant's
Proportionate Share shall be adjusted to be the quotient obtained by dividing
the Premises Square Footage by the adjusted total number of rentable square feet
then contained in the Building.
Leasehold Parking Area: The areas designated as the Leasehold Parking Area on
Exhibit C attached hereto and any alteration or replacement thereof designated
by Landlord in writing to Tenant.
Measurement Method: The Modified New York BOMA Measurement Method, 1980,
Reaffirmed 1989 except as follows: (i) measurements will be
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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. Rentable Area to be determined utilizing the following
formulation: Usable Square Footage of Building / Efficiency Factor = Rentable
Square Footage.
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 Corporate Center".
Property: The Building and the Lot.
Park Covenants: The Amended and Restated Declaration of Covenants,
Restrictions, Development Standards and Easements attached hereto as Exhibit H
together with any amendments thereto as are permitted thereunder.
Tenant Plan Delivery Date: March 26, 1999.
Term of this Lease: The Original Term and any proper extension period extending
the Original Term.
Business Day: All days except Sundays and legal holidays.
Business Hours: 8:00 a.m. to 6:00 p.m. on all Business Days except Saturdays and
Saturdays from 8:00 a.m. to 1:00 p.m.
Ground Lease: The Indenture of Lease dated as of August 15, 1980, between the
Inhabitants of Xxx Xxxx xx Xxxxxxxxxx ("Xxxx") as landlord and The First
National Bank of Boston (Bank of Boston) notice of which is recorded with the
Middlesex South Registry of Deeds (The Registry) in Book 14306, 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 63.
The Original Ground Lease was amended by amendment to lease dated the 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 under the Original Ground
Lease insofar as it relates to the Leasehold Lot was assigned to the Landlord
hereunder by Assignment and Assumption of Leasehold Interest dated January 21,
1998 from Rose to Landlord (the "Rose Partial Assignment"). All references in
this Lease to the Ground Lease shall mean the Original Ground Lease as assigned
to Landlord by the Rose Partial Assignment as it may be further assigned or
amended
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from time to time and, for purposes hereof, the premises thereunder shall be
deemed to include only the Leasehold Lot and all obligations of Landlord as
tenant thereunder related solely to the Leasehold Lot.
Section 1.2. Exhibits. The following Exhibits are attached to and incorporated
in this Lease:
Exhibit A: Plan of Premises
Exhibit A-1: Site Plan of Building and Lot
(includes Leasehold lot)
Exhibit B: Lot
Exhibit C: Leasehold Parking Area
Exhibit D: Specifications of Leasehold Improvements
and Tenant Layout
Exhibit E Cleaning Specifications
Exhibit F: Rules and Regulations
Exhibit G: Option to Extend
Exhibit H: Park Covenants
Exhibit I: Intentionally Omitted
Exhibit J: Form of SNDA
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 any and
all existing encumbrances and other matters of record and subject to the terms
and provisions of this Lease.
Section 2.2. Term. TO HAVE AND TO HOLD for the Original Term beginning on
the earlier of (a) the date the Landlord's TI Work shall be deemed to be
substantially complete pursuant to Section 3.3 and (b) the date on which Tenant
shall occupy all or any part of the Premises for the conduct of business
(whichever of said dates is appropriate being hereafter referred to as the "Term
Commencement Date"), and continuing through the last day of the Original Term,
unless sooner terminated as hereinafter provided. It is agreed and understood
that mere "Early Entry" (as hereafter defined) by Tenant and its contractors for
purposes of Tenant installing voice and data telecommunication lines and cabling
pursuant to Section 3.2(f) shall not be deemed to satisfy the condition in
clause (b) hereof.
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 the
floor on which the Premises is located; but such rights shall always be subject
to reasonable rules and regulations from time to time established by Landlord
pursuant to this Lease and to the right of Landlord to designate and change from
time to time areas and facilities so to be used provided that (i) such changed
facilities are substantially equivalent or better and (ii) Landlord shall use
good faith efforts to avoid unreasonable interference with Tenant's access to
and use of the
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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. Tenant and its employees shall also have the
non-exclusive right to use, in common with others entitled thereto, the
Leasehold Parking Area for parking purposes only.
(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, electric and telephone closets, janitor closets, freight
elevator vestibules and pipes, ducts, conduits, wires and appurtenant fixtures
serving exclusively or in common 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. 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. In exercising its rights
pursuant to (a) and (b) above, Landlord shall use good faith efforts to avoid
unreasonable interference with Tenant's use of the Premises. Any installations
or relocations of pipes, shafts, wires, ducts, conduits and appurtenant fixtures
shall, to the extent reasonably possible be located above ceilings or between
walls.
SECTION 3
Improvements
Section 3.1. Construction of Building. Intentionally Omitted.
Section 3.2. Tenant Improvements; Tenant's Plans; Pricing of Tenant's
Work; Landlord's T.I. Work.
(a) Tenant agrees to deliver to Landlord not later than the Tenant Plan
Delivery Date a detailed floor plan layout together with working drawings and
written instructions (herein called "Tenant's Plans") in accordance with and
containing at least the information detailed in Exhibit D and reflecting the
partitions and improvements desired by Tenant in the Premises. Within fourteen
(14) days of the receipt of Tenant's Plans, Landlord shall furnish to Tenant in
writing a time schedule for the completion of the work shown on Tenant's Plans
and the Tenant Improvement Costs (as hereafter defined) for the cost of
construction work and material necessary to complete the work shown in Tenant's
Plans in accordance with Tenant's Plans. As used herein, the Term "Tenant
Improvement Costs" shall mean the aggregate of (a) the "Cost of the Work" (as
defined in AIA Document A111 (1978
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Edition)) necessary to complete the work and improvements shown on Tenant's
Plans (b) all architectural and engineering fees necessary to prepare, develop,
revise and finalize Tenant's Plans and (c) Landlord's contractor's fee in the
total amount equal to 8% of the Cost of the Work. Tenant shall notify Landlord
in writing, within five (5) Business Days of receipt by Tenant of the estimate
of, and the time schedule for, the Tenant Improvement Costs, of either its
approval thereof and its authorization to Landlord to proceed with construction
in accordance with Tenant's Plans or any changes in Tenant's Plans. In the event
Tenant elects the latter alternative (namely, to change Tenant's Plans),
Landlord shall within five (5) Business Days of receipt of said changes in
Tenant's Plans quote to Tenant all estimated changes in Tenant Improvement Costs
(the "First Revised Tenant Improvement Costs") resulting from said plan
modifications. Tenant shall, on or before the third (3rd) Business Day (the
"Outside Authorization to Proceed Date") following the receipt by Tenant of the
First Revised Tenant Improvement Costs, give notice to Landlord of either (i)
its approval thereof and its authorization to Landlord to proceed with the
construction in accordance with Tenant's Plans as modified or (ii) of any
further changes in Tenant's Plans. If Tenant again elects the latter alternative
(namely to change Tenant's Plans), the foregoing procedures and time periods for
delivery of additional quotes to Tenant of all changes in Tenant Improvement
Costs and for Tenant's either giving authorization to proceed or to make further
changes on Tenant's Plans shall apply, except that the Outside Authorization to
Proceed Date shall not be further extended. Tenant agrees to use good faith
diligent efforts to finally approve all such changes in the Tenant Improvement
Costs and in Tenant's Plans and to give its authorization to proceed with
construction as aforesaid on or before the Outside Authorization to Proceed
Date. Tenant shall be charged with responsibility for all delays and increased
costs and expenses related to any failure of Tenant to give Landlord full
authorization to proceed with construction as shown on Tenant's Plans, as so
changed by Tenant, on or before the Outside Authorization to Proceed Date
(including loss of rent to the extent so provided in Section 3.3(c) hereof)
provided that, in the case of changes, Landlord identifies all such increased
costs due to such change at the time Landlord quotes the cost of such change to
Tenant.
To the extent that the Tenant Improvement Costs exceed the amount of
$20.00 per rentable square foot contained in the Premises (the "TI Allowance"),
Tenant shall be responsible for such excess costs (the "OBS Costs") as
hereinafter set forth. Tenant shall reimburse Landlord for OBS Costs as follows:
during the performance of Landlord's TI Work, Landlord may, on or about the
first day of each month, deliver to Tenant a statement showing that proportion
of OBS Costs allocable to the previous month's work. Tenant shall pay to
Landlord the amount specified in each such statement within thirty days after
receipt of such statement. Any failure by Tenant to pay when due any amount
required in this paragraph shall entitle the Landlord to the same rights and
remedies as a failure to pay Annual Fixed Rent when due.
(b) Time is of the essence in connection with delivery of Tenant's Plans
to Landlord, review of Tenant's Plans, approval of the Tenant Improvement Costs
and time schedule by Landlord and authorization to Landlord to proceed with
construction on or before the Outside Authorization to Proceed Date. Should
Tenant fail to deliver Tenant's Plans as scheduled, or fully authorize Landlord
to
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proceed on or before the Outside Authorization to Proceed Date, or if Tenant
makes changes or alterations to the matters shown on Tenant's Plans as approved
by Landlord and Tenant, the Anticipated Term Commencement Date shall be deferred
one day for each day of delay caused by, or chargeable to, Tenant or Tenant's
architect.
(c) Tenant hereby agrees that the work shown in Tenant's Plans (the
"Landlord's T.I. Work") to the Premises will be performed by Landlord's general
contractor. Tenant shall also pay the Landlord, within ten (10) days of billing
therefor, for any increases in the Tenant Improvement Costs resulting from
changes in the Tenant's Plans (which Tenant or its architect request or which
result from errors, omissions or incompleteness of such Tenant Plans or which
result from any failure of such Tenant Plans or the work shown thereon to comply
with applicable laws, ordinances, rules and regulations), as finally approved,
it being understood that such increased costs shall be equal to the aggregate of
(a) the Cost of the Work (as defined above) for such changes, plus architectural
and engineering fees (b) Landlord's contractor's fee in the total amount equal
to eight (8%) percent of the Cost of the Work for such changes and (c) all delay
costs and expenses (including, without limitation, loss of rent to the extent so
provided in Section 3.3(c) hereof) identified by Landlord in writing at the time
of agreeing to any change, to the extent actually incurred or suffered. Although
Landlord's general contractor will charge an eight (8%) percent fee as part of
the Tenant Improvement Costs, Landlord shall not, itself, charge any separate
construction administration fee. Landlord will not be required to solicit bids
for the general contract but shall solicit bids from subcontractors. Landlord
agrees to use due diligence to complete the work described in Tenant's Plans on
or before the Anticipated Term Commencement Date (as extended pursuant to this
Lease). Landlord shall not be required to install any improvements or approve
any aspect of Tenant's Plans which are not approved by Landlord's architect or
which do not comply with applicable law, ordinances or codes. Further, Landlord
will not be responsible for any failure of the design (including, without
limitation, errors, omissions and incompleteness of Tenant's Plans and
instructions from Tenant's architect) of Landlord's T.I. Work (including without
limitation, the plans, specifications, layouts or materials) to comply with
applicable laws, ordinances or codes. If Landlord determines that any portion of
the Landlord's T.I. Work should be performed by a subcontractor who is not the
lowest bidder for the applicable division of the Landlord's T.I. Work, then the
designation of the subcontractor who will be selected to perform such portion of
the Landlord's T.I. Work shall be subject to the mutual agreement of Landlord
and Tenant. In case of delays in the Landlord's T.I. Work due to governmental
regulation, unusual scarcity or inability to obtain labor or materials, labor
difficulties, casualty or other causes reasonably beyond Landlord's control, the
Anticipated Term Commencement Date shall be extended for the period of such
delays.
(d) Tenant agrees that for any delay in performing work to prepare the
Premises for occupancy caused by it, or anyone employed by it (including without
limitation, Tenant's architect), the Anticipated Term Commencement Date will be
adjusted one day for each such day of delay.
(e) If Landlord shall be unable to give possession of the Premises on the
Anticipated Term Commencement Date because the
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Premises is not substantially completed (as provided in Section 3.3), then,
subject to the provisions of Section 3.3(c) hereof, Landlord shall not be
subject to any liability for failure to give possession on said date , nor shall
such failure affect the validity of this Lease.
(f) To the extent that Landlord, in good faith, believes that Landlord's
TI Work shall not be adversely affected by such entry, Landlord shall use good
faith efforts to permit Tenant's agents and contractors to enter the Premises
approximately two (2) weeks prior to the date which Landlord projects will be
the Term Commencement Date (the "Early Entry") in order to commence installation
of Tenant's voice and data communication systems, wiring and cabling. With
respect to such Early Entry, Tenant shall be bound by all of the terms of this
Lease except the obligation to pay Annual Fixed Rent, Operating Cost Escalations
and Real Estate Tax Escalations. All of the Tenant's installation of furnishings
and equipment shall be coordinated with any work being performed by Landlord and
in such manner as to maintain harmonious labor relations and not damage the
Building or Lot or materially interfere with Landlord's T.I. Work. Landlord
agrees to use good faith efforts to cooperate with Tenant to maintain harmonious
labor relations with workers performing work on behalf of Tenant to prepare the
Premises for occupancy by Tenant. Except for installation of furnishings and
equipment and voice and data telecommunication equipment, any construction work
to be performed in the Premises shall be performed by Landlord's general
contractor and subcontractors selected by Landlord (as aforesaid).
Section 3.3. Preparation of Premises for Occupancy.
(a) Landlord agrees to use diligent efforts to substantially complete
construction of Landlord's T.I. Work as provided in this Section 3 on or before
the Anticipated Term Commencement Date as such date may be extended pursuant to
the terms of this Lease. Without limiting any other provision of this Section 3,
the time for completion of Landlord's TI Work provided herein shall also be
extended by the duration of any delay referred to in Section 13.4.
(b) Landlord's TI Work shall be deemed "substantially complete" on the
date on which (i) construction of the same shall have been substantially
completed in accordance with Tenant's Plans (as finally approved) (with the
exception of minor items which can be completed without material interference to
Tenant's moving into or use of the Premises ie. "punch-list items") and (ii) a
certificate of occupancy (permanent or, provided it does not materially
interfere with moving into or use of the Premises by Tenant, a temporary
certificate of occupancy) shall have been issued by the Town of Framingham.
(c) If the Landlord is unable to give possession of the Premises on the
Anticipated Term Commencement Date initially designated and specified in Section
1.1 of this Lease (without regard to any subsequent extensions of such date
pursuant to the provisions of this Lease) because the Premises are not
substantially complete or ready for occupancy due to delays caused by, or
chargeable to, Tenant or Tenant's architect or anyone employed by Tenant,
including without limitation, change orders, lack of timely action with respect
to plans or submission of information which Tenant is required to provide,
failure of Tenant to give Landlord authorization to proceed on or before the
Outside Authorization to Proceed Date, errors,
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incompleteness or inaccuracy in Tenant's Plans or the failure of the design or
layout of the Landlord's T.I. Work to comply with all applicable laws,
ordinances, rules and regulations or any other actions or inactions by Tenant or
Tenant's architect or anyone employed by Tenant, which prevents or delays
Landlord in performing or completing any construction or work to be performed by
Landlord or its contractors, including without limitation Landlord's T.I. Work,
Tenant shall pay to Landlord for each day of such delay an amount equal to one
day's Annual Fixed Rent. Any payments due Landlord under this clause shall be
paid within five (5) days of the invoice from Landlord stating the charge and,
in all such cases, the Anticipated Term Commencement Date will be adjusted one
day for each day of such delay. Landlord shall provide Tenant with written
notice of any delays caused by or attributable to Tenant under this Section 3.
If the Term Commencement Date has not occurred by the Anticipated Term
Commencement Date (as it may be extended pursuant to this Lease), Tenant shall
have the right to terminate this Lease by giving notice to Landlord, not later
than thirty (30) days after the Anticipated Term Commencement Date (as so
extended), of Tenant's desire so to do; and this Lease shall cease and come to
an end without further liability or obligation on the part of either party
ninety (90) days after the giving of such notice, unless, within such 90-day
period, Landlord substantially completes Landlord's TI Work to the extent
required by Section 3.3(b) above, which substantial completion shall void
Tenant's election to terminate; and such right of termination shall be Tenant's
sole and exclusive remedy at law or in equity for Landlord's failure so to
complete Landlord's TI Work within such time.
(d) Landlord shall complete all incomplete items with due diligence and
will use good faith efforts to complete all punch-list items within thirty (30)
days after the Term Commencement Date except for items which, because of the
season or weather, or the nature of the item are not practical to complete
within such thirty (30) day period and Landlord will use due diligence to
complete such other items with due diligence when the season and weather permit
or when it becomes practical to complete the same.
(e) Tenant has advised Landlord that Tenant would, if Landlord's TI Work
is then substantially complete, accept delivery of the Premises and the
occurrence of the Term Commencement Date sooner than June 1, 1999. Accordingly,
notwithstanding section 4.1 of the Lease to the contrary, Tenant hereby agrees
to pay Landlord 200% of the Annual Fixed Rent plus 100% of the Additional Rent
otherwise payable by Tenant under this Lease (on a per diem basis) for each day
prior to June 1, 1999 that the Term Commencement Date shall occur (For example,
if the Landlord's TI Work were substantially complete on May 25, 1999 then, the
Term Commencement Date would be May 25, 1999 and for and with respect to the
period May 25, 1999 through and including May 31, 1999, Tenant shall pay 200% of
the Annual Fixed Rent and 100% of the Additional Rent otherwise payable by
Tenant hereunder for each such day).
It is agreed and understood that the increased rent provisions of this
Section 3.3(e) shall apply only in the event that the Term Commencement Date
shall occur on or before May 31, 1999.
Section 3.4. General Provisions Applicable to Construction. All
construction work required or permitted by this Lease, whether by
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Landlord or by Tenant, shall be done in a good and workmanlike manner and in
compliance with all applicable laws and all ordinances, regulations and orders
of governmental authority and insurers of the Building. Either party may inspect
the work of the other at reasonable times and shall give notice of observed
defects. All of Landlord's obligations under Section 3 shall be deemed to have
been performed when Landlord gives Tenant (i) a certificate of occupancy from
the Town of Framingham, Massachusetts, and (ii) a written certificate from
Landlord's architect stating that the Premises are substantially complete within
the meaning of Section 3.3(b), except for punch-list items which are then
incomplete or do not conform with the requirements of this Section 3 and as to
which Tenant shall in either case have given notice to Landlord prior to the
date Tenant takes occupancy of the Premises, and Landlord's obligations with
respect to the items included in such notice shall be deemed to have been
performed five business days after Landlord shall have notified Tenant in
writing that the same have been completed unless during such five day period
Tenant shall give written notice to Landlord to the contrary.
In addition to the foregoing, so long as Tenant shall, on or before the
first (1st) anniversary of the Term Commencement Date, provide Landlord with
written notice of a defect in workmanship or materials in connection with
Landlord's TI Work, which defect was not reasonably discoverable at the time
Tenant delivered Landlord its punch list pursuant to the immediately preceding
paragraph of this Section 3.4, then Landlord shall repair such defect within
thirty (30) days after such notice (provided that such notice is given to
Landlord on or before the 1st anniversary of the Term Commencement Date.
Section 3.5. 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 thereon.
Section 3.6. Certain Landlord Obligations. Intentionally Omitted.
Section 3.7. Tenant's Plans. Tenant shall select and directly contract for
the architectural, space planning and engineering services related to the
Landlord's T.I. Work (the "Tenant's Space Planning Services") which services
shall include space planning, space layout, furniture selection and
installation, graphics, interior design signage as well as the design of those
parts of the electrical, mechanical, plumbing and HVAC systems, as are included
in the Landlord's T.I. Work. The cost of Tenant's Space Planning Services shall
be included in the Tenant Improvement Costs (as defined in Section 3.2(a)).
Tenant shall be solely responsible for any errors, incompleteness, defects and
deficiencies in the Tenant's Plans and for any failure of the Tenant's Plans or
the work shown thereon to comply with all applicable laws rules and regulations
applicable thereto.
Section 3.8. Controlling Provisions. To the extent that there is any
inconsistency between the Exhibits to this Lease and the provisions of Section
3, the provisions of Section 3 shall govern any such inconsistency.
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Section 3.9. Changes In Building or Lot. Landlord 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; 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 (namely 4 spaces per thousand square feet contained in the Premises Square
Footage)or access ways serving the Buildings.
SECTION 4
Annual Rent
Section 4.1. The Annual Rent. Tenant shall pay all Annual Fixed Rent and
Additional 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 in equal installments equal to 1/12th of the Annual Fixed Rent and
Additional Rent from time to time payable hereunder in advance on the first day
of each calendar month included in the Term of this Lease, and for any portion
of a calendar month at the beginning or end of the Term of this Lease, at that
rate payable in advance for such portion. Tenant shall pay an administrative fee
equal to five (5%) percent of the amount of any Annual Fixed Rent or Additional
Rent payment or other charge which is not paid within five (5) days after the
due date thereof. Notwithstanding the foregoing sentence to the contrary, the
five (5) day grace period shall only apply to the first two (2) late payments in
any calendar year. Upon the occurrence of the third late payment in any calendar
year and thereafter at any time during the Term of this Lease when Annual Fixed
Rent, Additional Rent or other charges are not paid when due, the 5%
administrative fee shall be payable without the benefit of the 5 day grace
period. The Annual Fixed Rent is subject to adjustment pursuant to Section
3.3(e) of this Lease in the event that the Term Commencement Date shall occur on
or before May 31, 1999.
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
30th day following receipt by Tenant of Landlord's Operating Cost Statement (as
defined below). After 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),
Landlord's Operating Costs shall include, without limitation, premiums for
insurance covered by Landlord with respect to the Property; 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 (If such persons are engaged
with respect to more than one property, such costs
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shall be appropriately allocated among the Property and such other properties);
water and sewer use charges for the Property; all 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
HVAC, electric and plumbing systems and parking areas (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, replacing or repairing of the Building or any
portion or component thereof and/or any portion of the Property including,
without limitation, the operation or maintenance of a cafeteria/food service
operation in the Building; it being agreed that if Landlord shall install a new
or replacement capital item, 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, shall be
included in Landlord's Operating Costs. Without limiting the generality of the
foregoing, it is expressly understood and agreed that all costs and expenses
allocated to the Property under the Park Covenants, as the same may be amended,
restated, modified, changed, supplemented or substituted from time to time shall
not be included in Operating Costs but shall be payable as provided in Section
5.3 hereof. If, during the Term of this Lease, Landlord shall incur capital
expenses in connection with repairs or replacement of the roof, foundation or
structure of the Building, there shall be included in Landlord's Operating Costs
for that and in each succeeding calendar year, 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 or replacements (less insurance proceeds or other proceeds, if
any, collected by Landlord by reason of damage to, or destruction of, any
capital items so repaired). In replacing a capital item, Landlord shall replace
such capital item with a capital item of substantially similar quality and
utility to that being replaced so long as such a replacement is deemed
appropriate and prudent in light of ownership and management practices then
being employed in other first class office buildings. Landlord's Operating Costs
shall not include any cost or expense covered by a warranty to the extent of the
coverage afforded by said warranty and Landlord shall use good faith efforts to
realize coverage under applicable warranties.
In determining Landlord's Operating Costs, if less than 95% of the
Building shall have been occupied by tenants and fully used by them, at any time
during the year, Landlord's Operating Costs shall be extrapolated to an amount
equal to the like operating expenses that would normally be expected to be
incurred had such occupancy been 95% and had such full utilization been made
during the entire period.
"Operating Cost Escalation" shall be equal to Tenant's Proportionate Share
of the excess, if any, of:
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(a) Landlord's Operating Costs for each calendar year as indicated by
Landlord's Operating Cost Statement; over
(b) The Annual Base Operating Costs.
Notwithstanding the above calculation, in no event shall Operating Cost
Escalation be less than zero.
Tenant acknowledges that Landlord's formula for sharing of Landlord's
Operating Costs stated in this Lease is based on the assumption that Landlord
will be providing substantially similar services to all tenants in the Property
from year to year. If this assumption is not, in fact, correct, that is, if
Landlord is not furnishing any particular work or service (the cost of which, if
performed by Landlord, would be included in Landlord's Operating Costs) to a
tenant who has undertaken to perform such work or service in lieu of the
performance thereof by Landlord, Operating Costs shall be deemed, for purposes
of this paragraph, to be increased by an amount equal to the additional
Operating Costs which would reasonably have been incurred during such period by
Landlord if it had, at its own expense, furnished such work or service to such
tenant.
Operating Cost Escalations shall be apportioned for any calendar year in
which the Term of this Lease 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) thirty (30) 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 within thirty (30) days submission of Landlord's Operating
Cost Statement.
Section 5.2. Estimated Operating Cost Escalation Payments. If, with
respect to any calendar year or fraction thereof during the Term of this Lease,
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 (but not more than three times in any
calendar year) 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 5.3. Park Expenses. As used herein, the term "Park Expenses" shall
mean any and all costs or expenses allocated and assessed to the Property under
the Park Covenants (as amended from time to time) for each calendar year or
portion thereof falling within the Term of this Lease. As Additional Rent under
this Lease, Tenant shall pay Landlord Tenant's Proportionate Share of Park
Expenses for
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each calendar year or portion thereof falling within the Term of this Lease
(appropriately pro rated and adjusted for any partial calendar year). Such
payments shall be made within 30 days after written demand by Landlord. In
addition, Landlord shall be entitled to collect monthly estimated payments of
Tenant's Proportionate Share of Park Expenses in advance in the same manner as
Landlord bills Tenant for monthly estimated payments of the Operating Cost
Escalation pursuant to Section 5.2 with an annual reconciliation at the end of
each calendar year. Landlord shall have the same rights and remedies against
Tenant for failure to timely pay amounts payable by Tenant pursuant to this
Section 5.3 as Landlord has against Tenant for failure to pay Annual Fixed Rent
when due.
Section 5.4. Audit Right. Provided that Tenant shall have first paid all
amounts due and payable by Tenant pursuant to this Section 5 and upon the
written request of Tenant (but not more than once with respect to any calendar
year), Tenant shall be permitted to inspect Landlord's books and records
pertaining to Operating Costs applicable to the Property for such calendar year.
Such inspection shall take place at a mutually agreeable time at the location
where such books and records are kept by the Landlord (or the Manager) in the
ordinary course. Tenant shall keep the results of any such inspection strictly
confidential and shall not be permitted to use any third party to perform such
audit or inspection, other than an independent firm of certified public
accountants (A) reasonably acceptable to Landlord, (B) which is not compensated
on a contingency fee basis or in any other manner which is dependent upon the
results of such audit or inspection (and Tenant shall deliver the fee agreement
or other similar evidence of such fee arrangement to Landlord upon request), and
(C) which agrees with Landlord in writing to maintain the results of such audit
or inspection confidential. Tenant may not conduct an inspection or have an
audit performed more than once during or with respect to any calendar year.
Provided Landlord's accounting for Operating Costs is consistent with the terms
of this Lease, Landlord's good faith judgment regarding the proper
interpretation of this Lease and the proper accounting for Operating Costs shall
be binding on Tenant in connection with any such audit or inspection. Failure of
Tenant to provide Landlord with a written request to review such books and
records within 90 days after receipt of a final statement pursuant to this
Section 5 with respect to each respective calendar year shall be deemed a waiver
of Tenant's rights hereunder with respect to such calendar year.
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 or any rent or other sums
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payable by any tenants or occupants thereof. 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 Property 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 Park
Covenants.
"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 the above calculation, in no event shall Real Estate Tax
Escalation be less than zero.
Notwithstanding any other provision of this Section 6.1, if the Term of
this Lease 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 (but not more than three (3) times)
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.
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SECTION 7
Insurance
Section 7.1. Tenant's Insurance. Tenant shall, at Tenant's sole cost and
expense, maintain throughout the term the following insurance:
(a) Commercial general liability insurance for any injury to person
or property occurring on the Property, 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 (such policies may be written on a blanket basis
covering more than one location provided that the applicable coverages shall be
in place with respect to this location); and
(b) Worker's compensation insurance with statutory limits covering
all of Tenant's employees working at the Premises; and
(c) Tenant acknowledges and agrees that if Landlord is required to
obtain any special environmental insurance as a result of Tenant's particular
and unique use and occupancy of the Property (meaning a use which is different
from mere general and administrative offices), then Tenant shall pay for any
insurance premiums related thereto.
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. 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 Property 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
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recovery against the other for loss or injury against which the waiving party is
protected by insurance containing said provisions.
Section 7.4. Landlord's Insurance. Landlord shall maintain and keep in
effect throughout the Term of this Lease (a) insurance against loss or damage to
the Building by fire or other casualty as may be included within either fire and
extended coverage insurance or "all-risk" insurance in an amount equal to the
full replacement cost of the Building (exclusive of foundations) and (b)
comprehensive general liability insurance in amounts determined by Landlord in
its sole and absolute discretion. Such coverage may be effected directly and/or
through the use of blanket insurance coverage covering more than one location
and may contain such deductibles as Landlord may, in its sole and absolute
discretion, elect.
SECTION 8
Landlord's Covenants
Section 8.1. Quiet Enjoyment. Tenant, on paying the Annual Fixed and
Additional 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 or which serve the Premises exclusively) in good condition and shall
maintain and clean the common areas of the Building and the Lot in a condition
similar to other first-class office Buildings in the Metro West Real Estate
Market Area, the cost of which shall be included in Landlord's Operating Costs.
Except as otherwise expressly provided in this Lease, Tenant shall not be
required to make repairs or alterations with respect to the common areas and
facilities of the Building. To the extent required by final non-appealable
orders or judgments of governmental authorities, code enforcement officers or
courts of competent jurisdiction, Landlord shall make repairs and alterations in
the common areas and facilities of the Property necessary to bring the same into
compliance with applicable laws, codes, ordinances, statutes and by-laws
including, without limitation, the ADA. The cost of such compliance shall be
included in Landlord's Operating Costs under this Lease.
Section 8.3. Electricity. Electricity to the Premises shall be separately
metered and all utility charges for lights, plugs and so-called heat pumps
serving the Premises shall be billed directly to, and paid by, Tenant. If in
Landlord's judgment, Tenant's use of electricity 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
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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.
Tenant shall pay directly to the proper authorities charged with the
collection thereof all charges for water, sewer, gas, electricity, fire
protection and other utilities used or consumed on the Premises by Tenant or any
party claiming by, through or under Tenant, whether called charge, tax,
assessment, fee or otherwise, all such charges to be paid as the same from time
to time become due. To the extent included in Landlord's T.I. Work, Landlord
shall install or arrange for the installation of utilities serving the Premises.
It is understood and agreed that Tenant shall make its own arrangements for
obtaining service from such utilities and that Landlord shall not be liable for
any interruption or failure in the supply of any such utilities to the Premises.
If Tenant is not charged directly by the respective utility for any of such
utilities or services, Tenant shall from time to time, within ten (10) days of
Landlord's invoice therefor, pay to Landlord such charges and services from the
utility company.
Section 8.4. HVAC. 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
occupants of the Premises under normal business operation at an occupancy of not
more than one (1) person per 150 square feet of usable floor area. If Tenant
shall require air-conditioning, heating or ventilation outside the hours and
days above specified ("Special Service"), Landlord shall furnish such Special
Service and Tenant shall pay to Landlord therefor such charges as may from time
to time be in effect. 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. The premises
will contain a thermostat which will allow Tenant to call for HVAC Service. The
cost of providing HVAC Service (except Special Service or Supplementary HVAC
Systems installed exclusively for Tenant's benefit which shall be paid for
solely by Tenant), shall be included in Landlord's Operating Costs.
Section 8.5. Cleaning. Landlord shall provide nightly cleaning services
for the Premises in accordance with Exhibit E.
Section 8.6. Interruptions. Landlord shall not be liable to Tenant for any
compensation or reduction of Annual Fixed Rent or Additional 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. 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,
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nor shall Tenant be entitled to any abatement or reduction of Annual Fixed Rent
or Additional 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. To the extent within its
reasonable control, Landlord shall use good faith efforts to promptly restore
any service or utility suspended , curtailed or interrupted by Landlord or
Landlord's agents, servants or employees.
Section 8.7. Building Standard Signage. Landlord shall, at Landlord's
sole cost and expense, provide Tenant with Building Standard Signage on the
Lobby Directory and at the entrance of the Premises.
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. Notwithstanding the foregoing, Landlord shall
obtain a Certificate of Occupancy for Tenant's use of the Premises for general
office purposes as contemplated by Section 3 of this Lease.
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 and damage caused by Landlord or Landlord's agents, servants or
employees 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
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 dump, flush,
or in any way introduce any hazardous substances or any other toxic substances
into the septic, sewage or other waste disposal system serving the
- 19 -
Premises, or generate, store or dispose of hazardous substances in or on the
Premises or dispose of hazardous substances from the Premises to any other
location without the prior written consent of Landlord and then only in
compliance with the Resource Conservation and Recovery Act of 1976, as amended,
42 U.S.C. 6901 et seq., the Massachusetts Hazardous Waste Management Act, M.G.L.
c.21C, as amended, the Massachusetts Oil and Hazardous Material Release
Prevention and Response Act, M.G.L. c.21E, as amended, and all other applicable
codes, regulations, ordinances and laws. Tenant shall notify Landlord of any
incident which would require the filing of a notice under Chapter 232 of the
Acts of 1982 and shall comply with the orders and regulations of all
governmental authorities with respect to zoning, building, fire, health and
other codes, regulations, ordinances or laws applicable to the Premises.
"Hazardous substances" as used in this Section shall mean "hazardous substances"
as defined in the Comprehensive Environmental Response Compensation and
Liability Act of 1980, as amended, 42 U.S.C. 9601 and regulations adopted
pursuant to said Act.
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
reasonable cost thereof within 30 days after written demand.
Tenant will provide Landlord, from time to time upon Landlord's request,
with all records and information regarding any hazardous substance 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
substances of the Building, the Lot or the Premises 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 Premises, by reason of Tenant's use thereof. In no event shall
any activity be conducted by Tenant on the Premises which may give rise to any
cancellation of any insurance policy or make any insurance unobtainable.
Section 9.4. Tenant's Work. 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. Landlord will
not unreasonably withhold or delay its consent to non-structural, non-mechanical
and non-electrical alterations or improvements to the Premises. Any such work so
consented to by Landlord shall be performed only in accordance with plans and
specifications therefor reasonably approved by Landlord. 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,
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ordinances and laws and with all applicable insurance requirements. If requested
by Landlord, Tenant shall furnish to Landlord prior to the commencement of any
such work a bond or other security acceptable to Landlord assuring that any work
by Tenant will be completed in accordance with the approved plans and
specifications. Tenant shall keep the Premises at all times free of liens for
labor and materials. Tenant shall employ for such work only contractors approved
by Landlord 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, contractors,
licensees, sublessees or invitees. The indemnity contained in this Section 9.5
shall survive any expiration or earlier termination of this Lease. Tenant shall
not be required to indemnify the Indemnified Parties hereunder for loss or
damages to the extent such loss or damage is sustained by the Indemnified
Parties due to the negligence of the Indemnified Parties.
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 be permitted to
make pursuant to the terms of this Lease, without however, any obligation to do
so, and show the Premises to prospective purchasers and lenders, and, during the
last year 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,
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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 or earlier termination of the
Term of this Lease, Tenant shall (i) surrender all keys to the Premises, (ii)
remove all of its trade fixtures and personal property in the Premises, (iii)
remove such installations, alterations and improvements made by Tenant as
Landlord may require at the time Landlord consented to the making or
installation thereof, repair all damage caused by such removal and yield up the
Premises (including all installations, alterations and improvements made by
Tenant which Landlord shall not require Tenant to remove as aforesaid)
broom-clean and in the same good order and repair in which Tenant is obliged to
keep and maintain the Premises under this Lease. Any 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 as Additional
Rent under this Lease 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 (which obligations shall survive expiration or earlier
termination of the Term of this Lease.
Section 9.9. Estoppel Certificate. Upon not less than seven (7) 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 Fixed Rent and Additional 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 Fixed
Rent and Additional 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. Tenant shall reimburse
Landlord promptly on demand for all reasonable legal and other out-of-pocket
expenses incurred by Landlord in connection with all requests by Tenant for
consent or approval hereunder.
Section 9.11. Rules and Regulations. Tenant shall comply with the Rules
and Regulations attached hereto as Exhibit F and such additional reasonable
rules and regulations as may be adopted from time to time by Landlord (and of
which Tenant shall be given written notice) to provide for the beneficial
operation of the Lot and Building.
Section 9.12. Holding Over. Tenant shall vacate the Premises immediately
upon the expiration or sooner termination of the Term of this Lease. If Tenant
retains possession of the Premises or any part thereof or if property to be
removed by Tenant upon expiration or
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termination of the Term of this Lease shall remain in the Premises after the
expiration or termination of the Term of this Lease without Landlord's express
written consent, Tenant shall thereafter be deemed a tenant-at-sufferance and
shall pay Landlord Annual Fixed Rent at 150% of the monthly rate applicable
during the calendar month in which such expiration or earlier termination shall
occur for the time Tenant thus remains in possession and, in addition thereto,
Tenant shall pay Landlord for all damages, consequential as well as direct,
sustained by reason of Tenant's retention of possession or failure to remove
such property. 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.
Unless Tenant is a publicly traded company registered on a national stock
exchange, a transfer or assignment of 51% (computed on a cumulative, aggregate
basis) or more of the stock, equity or other indicia of ownership of Tenant
shall be deemed to constitute an assignment in breach of this Section 8.1.
Provided that Tenant shall first give Landlord written notice of such a transfer
together with reasonable documentation establishing the applicable relationship,
the foregoing restrictions shall not be applicable to an assignment of this
Lease or a subletting of the Premises by Tenant to an entity (an "Affiliate")
which is a subsidiary wholly-owned by Tenant or to a controlling corporation,
the stock of which is wholly-owned by the stockholders of Tenant or to a
corporation which owns all of, or a controlling interest in, the stock of
Tenant. 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.
(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
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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 to any party (including, without limitation, any use or occupancy of
the Premises by an Affiliate of Tenant) shall affect the Permitted Uses.
(c) In connection with any request by Tenant for consent to assignment or
subletting to a person or entity which is not an "Affiliate", Tenant shall first
submit to Landlord in writing: (i) the name of the proposed assignee or
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 assignment or subletting is to be made. Upon receipt from
Tenant of such request and information, the Landlord shall have an option
(sometimes hereinafter referred to as the "option" or "Take Back Option") to be
exercised in writing within thirty (30) days after its receipt from Tenant of
such request and information, if the request is to assign the Lease or to sublet
all of the Premises, to cancel or terminate this Lease, or, if the request is to
sublet a portion, of the Premises only, to cancel and terminate this Lease with
respect to such portion, in each case, as of the date set forth in Landlord's
notice of exercise of such option, which shall be not less than sixty (60) nor
more than one hundred twenty (120) days following the giving of such notice; in
the event Landlord shall exercise such option, Tenant shall surrender possession
of the entire Premises, or the portion which is the subject of the option, as
the case may be, on the date set forth in such notice in accordance with the
provisions of this Lease relating to surrender of Premises at the expiration of
the Term. If this Lease shall be cancelled as to a portion of the Premises only,
Annual Fixed Rent and Additional Rent shall thereafter be abated proportionately
according to the ratio the number of square feet of the portion of the space
surrendered bears to the size of the Premises. As Additional Rent, Tenant shall
reimburse Landlord promptly for reasonable legal and other expenses incurred by
Landlord in connection with any request by Tenant for consent to assignment or
subletting.
If Landlord shall not exercise its option pursuant to the foregoing
provisions, Landlord will not unreasonably delay or withhold its consent to the
assignment or subletting to the party referred to upon all the terms and
provisions set forth in Tenant's notice to Landlord, provided that the terms and
provisions of such assignment or subletting shall specifically make applicable
to the assignee or sublessee all of the provisions of this Section 9.13 of the
Lease so that Landlord shall have against the assignee or sublessee all rights
with respect to any further assignment or subletting which are set forth in
Section 9.13 of this Lease as amended hereby except that no such assignee or
sublessee shall have any right to further assign or sublet the Premises. In any
case where Landlord consents to an assignment of this Lease, Landlord shall be
entitled to receive 100% of all amounts received by Tenant in connection with
such assignment. Further, in any case where Landlord consents to an assignment
or a subletting, Landlord shall be entitled to receive 50% of all Subleasing
Overages (as said term is hereinafter defined). As used herein, the term
"Subleasing Overages" shall mean, for each period in question, all net amounts
received by Tenant in excess of Annual Fixed Rent and Additional Rent reserved
under this Lease attributable to the
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space sublet (including, without limitation, all lump sum payments made in
connection therewith) after deducting (i) all leasing commissions payable to
third party brokers in connection with such transaction (ii) tenant improvement
costs necessary to prepare the Premises for use by such successor occupant and
(iii) all then unamortized OBS Costs paid by Tenant in connection with
Landlord's TI Work.
Any such assignment or subletting shall nevertheless be subject to all the
terms and provisions of this Section 9.13 and no assignment shall be binding
upon Landlord or any of Landlord's mortgagees, unless Tenant shall deliver to
Landlord an instrument in recordable form which contains a covenant of
assumption by the assignee running to Landlord and all persons claiming by,
through or under Landlord. The failure or refusal of the assignee to execute
such instrument of assumption shall not release or discharge the assignee from
its liability as Tenant hereunder. In addition, Tenant shall furnish to Landlord
a conformed copy of any sublease effected under terms of this Section 9.13. In
no event shall the Tenant hereunder be released from its liability under this
Lease.
Landlord shall not be deemed unreasonable in refusing to approve a
sublease wherein the rent is, in the reasonable judgment of Landlord, at rates
which are more than 10% below market for the Premises or Building or where such
proposed subtenant is a tenant of any building in the Park.
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 Abatement of Rent. If the Premises or access thereto shall be
damaged or denied by fire or casualty or by action of public or other authority
in consequence thereof or if as a result of such fire, casualty or action of
public or other authority, Landlord is not able to provide Tenant with the
number of parking spaces to which Tenant is entitled under this Lease, Annual
Fixed Rent and Additional Rent payable by Tenant shall xxxxx proportionately for
the period in which, by reason of such damage, there is substantial interference
with Tenant's use of the Premises, having regard to the extent to which Tenant
may be required to discontinue Tenant's use of all or a portion of the Premises,
but such abatement or reduction shall end if and when Landlord shall have
substantially restored the Premises to the condition in which they were prior to
such damage. If the Premises shall be affected by any exercise of the power of
eminent domain, Annual Fixed Rent and Additional Rent payable by Tenant shall be
justly and equitably abated and reduced according to the nature and extent of
the loss of use thereof suffered by Tenant.
Section 10.2 Landlord's Right Of Termination. (a) If (a) the Premises or
the Building are substantially damaged by fire or other
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casualty or by action of public or other authority in consequence thereof (the
term "substantially damaged" meaning damage of such a character that the same
cannot, in ordinary course, reasonably be expected to be repaired within sixty
(60) days from the time that repair work would commence), or (b) any mortgagee
then holding a mortgage on the Property, or on any interest of Landlord therein,
should require that insurance proceeds payable as a result of a casualty be
applied to the payment of the mortgage debt or (c) a material uninsured fire or
other casualty or loss to the Building should occur or (d) if any part of the
Building is taken by any exercise of the right of eminent domain or should be
sold in lieu thereof or Landlord receives compensable damage by reason of
anything lawfully done in pursuance of public or other authority, then Landlord
shall have the right to terminate this Lease (even if Landlord's entire interest
in the Premises may have been divested) by giving notice of Landlord's election
so to do within 90 days after the occurrence of such casualty or the effective
date of such taking, whereupon this Lease shall terminate 30 days after the date
of such notice with the same force and effect as if such date were the date
originally established as the expiration date hereof.
(b) In the event Landlord's mortgagee shall advise Landlord that such
Mortgagee will not allow insurance proceeds to be used for restoration and in
the event that Landlord is unwilling to provide any additional funds necessary
to effect a complete restoration of the Premises, then Landlord shall give
Tenant notice of the same and Tenant shall have the right to terminate this
Lease within 5 days after the date of such notice, such termination to be
effective upon the giving of such notice as if the date of such notice were the
date of expiration of the Term of this Lease.
Section 10.3 Restoration. If this Lease shall not be terminated pursuant
to Section 10.2, Landlord shall thereafter use due diligence to restore the
Premises to substantially the same condition the Premises were in prior to the
damage (exclusive of (a) alterations or improvements made by or on behalf of the
Tenant after the Term Commencement Date and (b) fixtures or property removable
by Tenant upon expiration or earlier termination of the Term of this Lease, all
of which shall be the responsibility of Tenant), provided that Landlord's
obligation shall be limited to the amount of insurance proceeds or condemnation
awards made available to Landlord therefor. If, for any reason, such restoration
shall not be substantially completed within six months after the expiration of
the ninety (90) day period referred to in Section 10.2 (which six-month period
may be extended for such periods of time as Landlord is prevented from
proceeding with or completing such restoration for any cause described in
Section 13.5 or beyond Landlord's reasonable control), Tenant shall have the
right to terminate this Lease by giving notice to Landlord thereof within thirty
(30) days after the expiration of such period (as so extended). Upon the giving
of such notice, this Lease shall cease and come to an end without further
liability or obligation on the part of either party unless, within such thirty
(30) day period, Landlord substantially completes such restoration. Such right
of termination shall be Tenant's sole and exclusive remedy at law or in equity
for Landlord's failure to complete such restoration.
Landlord shall not be liable for any inconvenience or annoyance to Tenant
or injury to the business of Tenant resulting in any way from damage from fire
or other casualty or the repair thereof. Tenant
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understands that Landlord will not carry insurance of any kind on Tenant's
improvements, alterations, furniture or furnishings or on any fixtures or
equipment removable or to be removed by Tenant under the provisions of this
Lease, and that Landlord shall not be obligated to repair any damage thereto or
replace the same. If Tenant desires any other or additional repairs for
restoration and if Landlord consents thereto, the same shall be done at Tenant's
expense. Tenant acknowledges that Landlord shall be entitled to the full
proceeds of any insurance coverage, whether carried by Landlord or Tenant, for
damage to alterations, additions, improvements or decorations provided by
Landlord either directly or through an allowance to Tenant.
Section 10.4 Award. Landlord shall have and hereby reserves and excepts,
and Tenant hereby grants and assigns to Landlord, all rights to recover for
damages to the Property and the leasehold interest hereby created, and to
compensation accrued or hereafter to accrue by reason of any taking by exercise
of the power of eminent domain or any sale in lieu thereof or by reason of
anything done in pursuance of public or other authority, and by way of
confirming the foregoing, Tenant hereby grants and assigns, and covenants with
Landlord to grant and assign to Landlord, all rights to such damages or
compensation. Nothing contained herein shall be construed to prevent Tenant from
prosecuting in any separate condemnation proceedings a claim for the value of
any of Tenant's Removable Property installed in the Premises by Tenant at
Tenant's expense and for relocation expenses; provided, that such action shall
not affect the amount of compensation otherwise recoverable by Landlord from the
taking authority and shall be prosecuted in a proceeding separate and apart from
Landlord.
Section 10.5 Temporary Taking. In the event of taking of the Premises or
Property or any part thereof for temporary use by the exercise of any
governmental power, (i) this Lease shall be and remain unaffected thereby and
rent shall not xxxxx, and (ii) Tenant shall be entitled to receive for itself
such portion or portions of any award made for such use with respect to the
period of the taking which is within the Term, provided that if such taking
shall remain in force at the expiration or earlier termination of this Lease,
Tenant shall then pay to Landlord a sum equal to the reasonable cost of
performing Tenant's obligations under this Lease with respect to surrender of
the Premises and upon such payment shall be excused from such obligations.
Section 10.6 No Liability On Account Of Injury To Business, Etc. Landlord
shall not be liable for any inconvenience or annoyance to Tenant or injury to
the business of Tenant or resulting in any way from damage from fire or other
casualty or the repair thereof and Tenant understands and agrees that Landlord
shall in no event be responsible for the repair or replacement of any furniture
or furnishings or any fixtures or equipment removable by Tenant under the
provisions of this Lease. If Tenant desires any other or additional repairs or
restoration and if Landlord consents thereto, the same shall be done at Tenant's
expense. Tenant acknowledges that Landlord shall be entitled to the full
proceeds of any insurance coverage whether carried by Landlord or Tenant, for
damage to the Premises and any alterations or improvements thereto. Upon any
expiration or earlier termination of this Lease, any insurance proceeds not
theretofore applied to the cost of restoration shall be paid to Landlord. Tenant
acknowledges that the fire and extended coverage insurance carried by Landlord
shall not extend to Tenant's personal
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property, including inventory, trade fixtures, floor coverings, furniture and
other property removable by Tenant and that Tenant shall be responsible for
carrying all risk insurance on all such personal property, trade fixtures, floor
coverings, furniture and other property removable by it.
SECTION 11
Default
Section 11.1. Events of Default.
If any of the following ("Event of Default") shall occur: (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 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, Tenant hereby waiving all
statutory rights (including, without limitation, rights of redemption, if any)
to the extent such rights may be lawfully waived. Landlord, without notice to
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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
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 excess of the total rent reserved for the residue
of the term over the fair market rental value 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.
Section 11.3. Remedies Cumulative. Except as otherwise expressly provided
herein, any and all rights and remedies which Landlord or Tenant 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 or Tenant to any act or omission which
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otherwise would be a breach of any covenant or condition herein, or any waiver
by Landlord or Tenant 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 or Tenant 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 rent 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. If BankBoston shall cease
publishing its base rate (prime rate), then the Landlord shall have the right to
designate a substitute base rate (prime rate) used by a Boston Area
Institutional Lender designated by Landlord to be used in determining the
Delinquency Rate.
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
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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.
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.
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 shall
be subject and subordinate to any mortgage now or hereafter on the Lot or
Building, or both, which are separately and together hereinafter in this Section
12.2 referred to as "the mortgaged premises", and to each advance made or
hereafter to be made under any mortgage, and to all renewals, modifications,
consolidations, replacements and extensions thereof and all substitutions
therefor. This Section 12.2 shall be self-operative and no further instrument of
subordination shall be required. In confirmation of such subordination, Tenant
shall execute and deliver promptly any certificate that Landlord or any
mortgagee may request. In the event that any mortgagee or its respective
successor in title shall succeed to the interest of Landlord, then, at the
option of such mortgagee or successor, this Lease shall nevertheless continue in
full force and effect and Tenant shall and does hereby agree to attorn to such
mortgagee or successor and to recognize such mortgagee or successor as its
Landlord. The word "mortgagee" as used in this Lease shall include the holder
for the time being whenever the context permits.
Notwithstanding anything to the contrary contained in this Section 12.2,
Tenant shall not be required to subordinate this Lease to any mortgage or the
lien of any mortgage, nor shall the subordination provided herein be
self-operative unless the holder of such mortgage, as the case may be, shall
enter into an agreement with Tenant, recordable in form, to the effect that, in
the event of foreclosure of, or similar action taken under such mortgage,
Tenant's possession of the Premises under this Lease shall not be terminated or
disturbed by such mortgage holder or anyone claiming under such mortgage holder,
as the case may be, so long as Tenant shall not be in default under this Lease.
The form of any such agreement shall be the form required by any such mortgagee
in its sole and absolute discretion.
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Section 12.3. UNUM Mortgage. Landlord represents that UNUM Life Insurance
Company of America ("UNUM") presently holds a mortgage on the Property. Upon
execution and delivery of this Lease, Landlord shall use good faith efforts to
obtain a so-called "Subordination, Non-disturbance and Attornment Agreement"
from UNUM in the form attached to this Lease as Exhibit J ("SNDA"). Landlord
shall have no liability or responsibility to Tenant if UNUM refuses to execute
and deliver the SNDA nor shall such failure affect the validity of this Lease.
SECTION 13
Miscellaneous Provisions
Section 13.1. Notices from One Party to the Other. All notices required or
permitted hereunder shall be in writing and addressed, if to Tenant, at the
Original Address of Tenant until the Term Commencement Date and thereafter to
the Premises or such other address as Tenant shall have last designated by
notice in writing to Landlord with a copy to Xxxxxx X. Xxxxxxx, Esq., Xxxxxx &
Dodge LLP, Xxx Xxxxxx Xxxxxx, Xxxxxx, XX 00000 and, if to Landlord, at the
Original Address of Landlord or such other address as Landlord shall have last
designated by notice in writing to Tenant. Any notice shall be deemed duly given
when delivered or tendered for delivery at such address. All notices shall be
sent either (i) by certified mail return receipt requested, postage prepaid or
(ii) by reputable overnight delivery service with signature required upon
delivery.
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 Landlord.
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 Premises shall be liable under this
Lease except for breaches of Landlord's obligations occurring while owner of the
Premises. The obligations of Landlord shall be binding upon the assets of
Landlord which comprise the Premises but not upon other assets of Landlord. No
individual 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 Premises in pursuit of its
remedies upon an event of default hereunder, and the general assets of Landlord
and its 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
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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.
Section 13.6. Brokerage. 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 XX Xxxxxxxx Partners and Xxxxxx Xxxxx & X'Xxxxxx
(collectively "Brokers"). 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. Landlord shall pay commissions due and owing to Brokers
pursuant to its arrangements with Brokers.
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/Letter of Credit. Upon execution and
delivery of this Lease by Tenant, Tenant shall deposit with Landlord a Letter of
Credit in the amount and in form and substance satisfactory to Landlord in
Landlord's sole and absolute discretion (the "Letter of Credit") to be held and,
as applicable, presented and drawn upon and the proceeds thereof retained and
applied by Landlord as security for and in satisfaction of the faithful payment,
performance and observance by Tenant of the terms, covenants, provisions,
conditions and agreements of Tenant under and pursuant to this Lease. It is
agreed and understood that in the event of the occurrence of a Default of
Tenant, Landlord may present for payment and draw upon the Letter of Credit and
Landlord may use, apply or retain the whole or any part of the amounts available
to be drawn under the Letter of Credit to the extent required for the payment of
any Annual Fixed Rent, Additional Rent or any other sum which Landlord may
expend or be entitled to the payment of by reason of any Event of Default or any
failure of tenant to pay, perform or observe any term, covenant, condition or
provision of this Lease, including without limitation, any late charges,
interest payments or any damages or deficiency in the re-letting of the Premises
whether said damages or deficiency occurred before or after summary proceedings
or other re-entry by Landlord.
If Landlord shall present, draw upon and apply or retain all or any
portion of the amounts evidenced by the Letter of Credit, Tenant shall
immediately replenish and reinstate the amount available to be drawn under the
Letter of Credit or cause a substitute Letter of Credit in the form and amount
required by this Lease to be re-issued so that at all times during the Term of
this Lease, Landlord shall be
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entitled to draw upon the entire dollar amount of the Letter of Credit in the
amounts required hereunder notwithstanding any prior presentation or draw
thereon.
The Letter of Credit must at all times be an "irrevocable clean"
commercial Letter of Credit in the amount required by this Lease and payable
through a Boston, Massachusetts Clearinghouse Bank, acceptable to Landlord in
Landlord's sole discretion. In addition, the Letter of Credit shall be payable
solely to the benefit of the Landlord from time to time under this Lease and
shall be automatically renewable and, upon the direction of Landlord,
transferable to and payable for the benefit of any successor Landlord under the
Lease. The Letter of Credit (or substitutes thereof consistent with the terms
hereof) shall be and remain presentable and payable for the time period
beginning on the date of this Lease through and including the date which is the
last to occur of (i) the date which is 60 days after the last day of the Term of
this Lease or (ii) the date which is 60 days after the date of delivery of the
entire Premises to Landlord in accordance with the terms and provisions of this
Lease or (iii) 60 days after the last of Tenant's monetary obligations to
Landlord under this Lease have been satisfied in full. Tenant shall bear all
costs and expenses in connection with procuring the Letter of Credit and
maintaining it in full force and effect for the time periods required hereunder.
In the event of a sale or other transfer of the Building, Tenant shall, at its
sole cost and expense, cause the Letter of Credit, in the form required
hereunder, to be issued to and for the benefit of such transferee or purchaser,
as designated by Landlord.
The Landlord from time to time under this Lease, shall be entitled to
receive 60 days prior written notice of any cancellation of the Letter of Credit
for any reason and the Letter of Credit shall not be cancellable unless and
until Landlord shall have received such sixty (60) day advance written notice.
Upon (i) receiving notice of cancellation of the Letter of Credit or (ii)
failure of Tenant to deliver to Landlord a substitute Letter of Credit on or
before the date which is 30 days prior to any renewal date and whether or not
Tenant shall then be in default in the payment, performance or observance of any
term, covenant or provision of this Lease, Landlord shall be entitled to
present, draw upon and retain the entire amount of the Letter of Credit and upon
so doing, Landlord shall be entitled to hold, apply and retain the proceeds of
such payment (without any interest payable to Tenant) as if it were a cash
security deposit under this Lease to be applied against Event of Default from
time to time arising under this Lease in the same manner as if it were the
proceeds of the Letter of Credit.
It is agreed and understood that any failure of Tenant to perform, observe
or comply with any term of provision contained in this Section 13.8 to be
performed or observed by Tenant shall entitle Landlord to the same rights and
remedies under this Lease, as a failure by Tenant to pay Annual Fixed Rent as
and when same shall be due and payable.
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The amount of the Letter of Credit shall at all times be $249,360.00.
Section 13.9. Leasehold Lot. It is expressly understood and agreed by and
between Landlord and Tenant that this Lease, as and to the extent that it grants
Tenant the appurtenant right to use the Leasehold Parking Area, is a sublease
and is subject and subordinate to the Ground Lease with respect to the Leasehold
Lot and that no right, power or privilege granted to Tenant hereunder with
respect to the Leasehold Lot may be exercised or enjoyed by Tenant and no term,
covenant or condition of this Lease insofar as it relates to the Leasehold Lot
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 Lot shall be, and is hereby expressly made, subject and
subordinate to the rights of the Landlord under the Ground Lease. Landlord
represents and warrants that a true and complete copy of the Ground Lease has
been delivered to Tenant's Counsel and that as of the date of execution and
delivery of this Lease by Landlord, Landlord is not in default of any term or
agreement under the Ground Lease which would give rise to a right to terminate
the Ground Lease by the Ground Lease Landlord. 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 Section 6.3 of the 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 using any part of the Leasehold Lot 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 part of the entire Leasehold Lot which the Tenant is permitted to use
hereunder at Tenant's own risk and the terms of the Ground Lease and Landlord
shall have no responsibility or liability for any loss or damage to fixtures or
other personal property of Tenant or any person claiming by, through or under
Tenant.
Section 13.10. Americans With Disabilities Act. Notwithstanding anything
contained in the Lease to the contrary, Landlord represents that it is currently
making good faith efforts to bring the common areas of the Building into
compliance with the requirements of Title III of the ADA. Tenant represents and
covenants that it shall conduct
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its occupancy and use of the Premises in accordance with the ADA (including, but
not limited to modifying its policies, practices and procedures, and providing
auxiliary aids and services to disabled persons). If the Lease provides that the
Tenant is to complete certain alterations and improvements to the Premises,
Tenant agrees that all such work shall comply with the ADA. Furthermore, Tenant
covenants and agrees that any and all future alterations or improvements made by
Tenant to the Premises shall comply with the ADA. Landlord and Tenant agree to
indemnify the other for any costs, claims, damages, losses or expenses
(including the costs of consulting and legal fees) arising out of the other's
breaching its respective responsibilities for compliance with the ADA as
required in this Lease. This indemnity shall survive the expiration or earlier
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: GENZYME TRANSGENICS CORPORATION
By: ________________________________
Its: ________________________________
NDNE51
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EXHIBIT D
Specifications of Leasehold Improvements
and Tenant Layout:
Attached to and made part of Lease
dated as of May 26, 1999 between
NDNE 9/90 Corporate Center, LLC, Landlord
and
Genzyme Transgenics Corporation, Tenant
with respect to certain premises at
000 Xxxxxxxx Xxxxxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx
1. Dimensional floor plan indicating location of partitions and doors (details
required of partition and door types).
2. Location of standard electrical convenience outlets and telephone outlets.
3. Location and specification of special electrical outlets; e.g. copiers,
computers, etc.
4. Reflected ceiling plan showing layout of standard ceiling and lighting
fixtures. Partitions to be shown lightly with switches located indicating
fixtures to be controlled.
5. Locations and details of special ceiling conditions, lighting fixtures,
speakers, diffusers, sprinkler heads, etc.
6. Location and specifications of floor covering, paint or paneling with paint
colors referenced to standard color system.
7. Finish schedule plan indicating wall covering, paint, or paneling with paint
colors referenced to standard color system.
8. Details and specifications of special millwork, glass partitions, rolling
doors and grilles, blackboards, shelves, etc.
9. Hardware schedule indicating door number keyed to plan, size, hardware
required including butts, latchsets or locksets, closures, stops, and any
special items such as thresholds, soundproofing, etc. Keying schedule is
required.
10. Locations and verified dimensions of all built--in equipment (file cabinets,
lockers, plan files, etc.).
11. All necessary mechanical, plumbing and electrical and sprinkler drawings to
complete the Premises in accordance with Tenant's Plans and tie same into
Building systems.
12. All drawings to be uniform size (36" x 48") and shall incorporate the
standard project electrical and plumbing symbols and be at a scale of 1/8" = 1"
or larger.
13. Location and details of special floor areas whose loading exceeds any of the
following:
50 pounds per square foot live load
20 pounds per square foot partition load
--
TOTAL = 70 pounds per square foot
14. Location of any special soundproofing requirements.
15. Existence of any extraordinary HVAC requirements necessitating perforation
of structural members.
16. Location and details of any interior stairs, blended deck or other special
requirements affecting the structure.
17. Any necessary increase in the design loads for the building electrical
system and air conditioning system
EXHIBIT F
Rules and Regulations
000 Xxxxxxxx Xxxxxxxxx, Xxxxxxxxxx, XX
RULES AND REGULATIONS. Tenant agrees to observe the rights reserved to
Landlord in the Lease and agrees, for itself, its employees, agents, clients,
customers, invitees and guests, to comply with the following rules and
regulations and with such reasonable modifications thereof and additions thereto
as Landlord may make, from time to time, for the Building, the Lot or the
Leasehold Parking Area.
1. Any sign, lettering, curtain, picture, notice, or advertisement
installed within Tenant's Premises (including but not limited to Tenant
identification signs on doors to the Premises) which is visible outside of the
Premises shall be installed at Tenant's cost and in such manner, character and
style as Landlord may approve in writing. No sign, lettering, picture, notice or
advertisement shall be placed on any outside window or in any position so as to
be visible from outside the Building or from any atrium or lobbies of the
Building.
2. Tenant, its customers, invitees, licensees, and guests shall not
obstruct sidewalks, entrances, passages, courts, corridors, vestibules, halls,
elevators and stairways in and about the Building. Tenant shall not place
objects against glass partitions or doors or windows or adjacent to any open
common space which would be unsightly from the Building corridors or from the
exterior of the Building, and will promptly remove the same upon notice from
Landlord.
3. Tenant shall not make noises, cause disturbances, create vibrations,
odors or noxious fumes or use or operate any electrical or electronic devices or
other devices that emit sound waves or are dangerous to other tenants and
occupants of the Building or that would interfere with the operation of any
device or equipment or radio or television broadcasting or reception from or
within the Building or elsewhere, or with the operation of roads or highways in
the vicinity of the Building and shall not place or install any projections,
antennae, aerials or similar devices inside or outside the Premises.
4. Tenant shall not make any room-to-room canvass to solicit business from
other tenants in the Building, and shall not exhibit, sell or offer to sell,
use, rent or exchange any item or services in or from the Premises unless
ordinarily embraced within Tenant's use of the Premises as specified in its
lease.
5. Tenants shall not waste electricity or water and agree to cooperate
fully with Landlord to assure the most effective operation of the Building's
heating and air conditioning and shall refrain from attempting to adjust any
controls. Tenant shall keep public corridor doors closed.
6. Doors keys for doors in the Premises will be furnished at the
commencement of the Lease by Landlord. Tenant shall not affix additional locks
on doors or windows and shall purchase duplicate keys only from Landlord. When
the Lease is terminated, Tenant shall return all keys to Landlord and will
provide to Landlord the means of opening any safes, cabinets or vaults left in
the Premises.
7. Tenant assumes full responsibility for protecting its space from theft,
robbery and pilferage, which includes keeping doors locked and other means of
entry to the Premises closed and secured.
8. Peddlers, solicitors and beggars shall be reported to the office of the
Building or as Landlord otherwise requests.
9. Tenant shall not install nor operate machinery or any mechanical
devices of a nature not directly related to Tenant's ordinary use of the
Premises without the written permission of Landlord. In no event shall vending
machines of any type be installed or used in the Premises.
10. No person or contractor not employed or approved by Landlord shall be
used to perform window washing, cleaning, decorating, repair or other work in
the Premises.
11. Tenant may not (without Landlord's approval therefor, which approval
will be signified on Tenant Plans submitted pursuant to the Lease) and Tenant
shall not permit or suffer anyone to xxxx in the Premises (except for the use of
a microwave oven) -
12. Tenant shall not:
(1) Use the Premises for lodging, manufacturing or for any immoral
or illegal purposes.
(2) Use the Premises to engage in the manufacture or sale of, or
permit the use of, any spirituous, fermented, intoxicating or
alcoholic beverages on the Premises.
(3) Use the Premises to engage in the manufacture or sale of, or
permit the use of, any illegal drugs on the Premises.
13. In no event shall any person bring into the Building inflammables such
as gasoline, kerosene, naphtha and benzene (except for small quantities of
naptha and benzene which shall be permitted and used in connection with the
cleaning of Tenant's office equipment), or explosives or firearms or any other
article of intrinsically dangerous nature. If by reason of the failure of Tenant
to comply with the provisions of this paragraph, any insurance premium payable
by Landlord for all or any part of the Building shall at any time be increased
above normal insurance premium payable by Landlord for all or any part of the
Building shall at any time be increased above normal insurance premiums for
insurance not covering the items aforesaid, Landlord shall have the option to
either terminate the Lease or to require Tenant to make immediate payment for
the whole of the increased insurance premium.
14. Tenant shall comply with all applicable federal, state and municipal
laws, ordinances and regulations and building rules, and shall not directly or
indirectly make any use of the Premises which may be prohibited thereby or which
shall be dangerous to person or property or shall increase the cost of insurance
or require additional insurance coverage.
15. If Tenant desires signal, communication, alarm or other utility or
service connection installed or changed, the same shall be made at the expense
of Tenant, with approval and under direction of Landlord.
16. Bicycles shall not be permitted in the Building in other than
Landlord-designated locations.
17. Tenant shall cooperate and participate in all security programs
affecting the Building, the Lot or the Leasehold Parking Area.
18. In the event Landlord allows one or more tenants in the Building to do
any act prohibited herein, Landlord shall not be precluded from denying any
other tenant the right to do any such act.
19. Tenant, or the employees, agents, servants, visitors or licensees of
Tenant shall not at any time place, leave or discard any rubbish, paper,
articles, or objects of any kind whatsoever outside the doors of the Premises or
in the corridors or passageways of the Building. No animals or birds shall be
brought or kept in or about the Building.
20. Landlord shall have the right to prohibit any advertising by Tenant
which, in Landlord's reasonable opinion, tends to impair the reputation of the
Building or its desirability for offices, and, upon written notice from
Landlord, Tenant will refrain from or discontinue such advertising.
21. Except as otherwise expressly set forth in the Lease, Tenant shall not
xxxx, paint, drill into, or in any way deface any part of the Building or the
Premises. No boring, driving of nails or screws, cutting or stringing of wires
shall be permitted, except with the prior written consent of Landlord which
consent shall not be unreasonably withheld or delayed, and as Landlord may
direct. Tenant shall not install any resilient tile or similar floor covering in
the Premises except with the prior approval of Landlord. The use of cement or
other similar adhesive material is expressly prohibited. Nothing contained
herein or in the Lease shall be construed to prevent Tenant from placing wall
hangings, framed awards, certificates and salutations and paintings on the walls
of the Premises. Nothing contained herein or in the Lease shall be deemed or
construed to preclude Tenant from banging normal and customary art work such as
photographs or paintings on the interior walls of the Premises provided that
Tenant shall repair any holes upon removal.
22. Landlord shall have the right to limit or control the number and
format of listings on the main Building directory.
23. Tenant's use of delivery areas, loading areas and freight elevators
shall be scheduled in advance with Landlord and shall be subject to the approval
of Landlord which approval will not be unreasonably withheld or delayed.
24. The rights of Tenant in the entrances, corridors, elevators and
escalators of the Building are limited to ingress to and egress from Tenant's
Premises for the Tenant and its employees, licensees and invitees, and no tenant
shall use, or permit the use of, the entrances, corridors, escalators or
elevators for any other purpose. No Tenant shall invite to the Tenant's
Premises, or permit the visit of, persons in such numbers or under such
conditions as to interfere with the use and enjoyment of any of the plazas,
entrances, corridors, escalators, elevators and other facilities of the Building
by other tenants. Fire exits and stairways are for emergency use only, and they
shall not be used for any other purposes by the Tenant, its employees, licensees
or invitees. No Tenant shall encumber or obstruct, or permit the encumbrance or
obstruction of any of the sidewalks, plazas, entrances, corridors, escalators,
elevators, fire exits or stairways of the Building or Lot or the driveways or
parking areas on the Lot or Leasehold Parking Area.
25. Landlord may refuse admission to the Building outside of ordinary
business hours to any person not known to the watchman in charge or not having a
pass issued by the Landlord or not properly identified, and may require all
persons admitted to or leaving the Building outside of normal business hours to
register. Tenant's employees, agents and visitors shall be permitted to enter
and leave the Building whenever appropriate arrangements have been previously
made between the Landlord and the Tenant with respect thereto. Each tenant shall
be responsible for all persons for whom he requests such permission and shall be
liable to the Landlord for all acts of such persons. In case of invasion, riot,
public excitement or other commotion, Landlord may prevent all access to the
Building during the continuance of the same, by closing the doors or otherwise,
for the safety of the tenants and protection of property in the Building.
Landlord may require any person leaving the Building with any package or other
object to exhibit a pass from the tenant from whose Premises the package or
object is being removed, but the establishment and enforcement of such
requirements shall not impose any responsibility on Landlord for the protection
of any tenant against the removal of property from the Premises of the tenant.
Landlord shall, in no way, be liable to any tenant for damages or loss arising
from the admission, exclusion or ejection of any person to or from the Tenant's
Premises or the Building under the provisions of this rule.
26. Except as permitted in the Lease, Tenant shall not obtain, accept or
use in its Premises food, beverages, barbering, boot blacking, floor polishing,
lighting maintenance, cleaning or other similar services from any persons not
authorized by Landlord in writing to furnish such services, provided always that
charges for such services by persons authorized by Landlord are not excessive.
Such services shall be furnished only to such hours, in such places within the
Tenant's Premises and under such regulations as may be fixed by the Landlord.
Notwithstanding the foregoing to the contrary, Tenant may (a) have bottled water
delivered to and consumed in the Premises and (b) use coffee making equipment in
the Premises for [purposes of consumption by Tenant's agents, servants,
employees and business invitees.
27. There shall not be used in any space, or in the public halls of the
building, either by any tenant or by jobbers or others, in the delivery or
receipt of merchandise or mail any hand trucks, except those equipped with
rubber tires and side guards.
28. Tenant shall, at Tenant's sole cost and expense, join and shall, at
all times during the Original Term or any proper extension thereof, be a member
of the MetroWest Transportation Management Association. The provisions hereof
shall apply to any assignee or sublessee of Tenant.
29. All entrance doors in each Tenants Premises shall be left locked when
the Tenant's Premises are not in use. Entrance doors shall not be left open at
any time. All windows in each Tenant's Premises shall be kept closed at all
times and all blinds or drapes therein above ground floor shall be lowered or
closed when and as reasonably required because of the position of the sun,
during the operation of the Building air conditioning system to cool or
ventilate the Tenant's Premises.
30. No acids, vapors or other materials shall be discharged or permitted
to be discharged into the waste lines, vents or flues of the Building which may
damage them. The water and wash closets and other plumbing fixtures in or
serving any Tenant's Premises shall not be used for any purpose other than the
purpose for which they were designed or constructed and no sweepings, rubbish,
rags, acids or other foreign substances shall be deposited therein. All damages
resulting from any misuses of the fixtures shall be borne by the tenant who, or
whose servants, employees, agents, visitors or licensees, shall have caused the
same.
31. Except as otherwise expressly set forth in the Lease, no signs,
advertisement, notice or other lettering shall be exhibited, inscribed, painted
or affixed by any tenant or any part of the outside or inside of the Premises or
the Building or Lot or Leasehold Parking Area without the prior written consent
of Landlord. In the event of the violation of the foregoing by Tenant, Landlord
may remove the same without any liability, and may charge the expense incurred
by such removal to the tenant or tenants violating this rule.
32. Intentionally omitted
33. Entry and exiting to and from the Lot and to and from the Leasehold
Parking Area and use of all roads, driveways and walkways on the Lot or the
Additional Parking Area shall be subject to such traffic and use rules and
regulations as Landlord may promulgate and provide to Tenant from time to time.
EXHIBIT G
OPTIONS TO EXTEND
OPTION TO EXTEND. Tenant shall have the right and option, which said option and
right shall not be severed from this Lease or separately assigned, mortgaged or
transferred, to extend the Term of this Lease for two (2) additional consecutive
periods of five (5) years each (hereinafter referred to respectively as the
"First Extension Period" and the "Second Extension Period" and sometimes
individually as an "Extension Period"), provided that (a) Tenant shall give
Landlord notice of Tenant's exercise of such option at least nine (9) full
calendar months prior to the expiration of (i) the Original Term in the case of
the option with respect to the First Extension Period and (ii) the First
Extension Period in the case of the option with respect to the Second Extension
Period and (b) no Event of Default (after expiration of applicable notice and
cure periods, if any) shall exist at the time of giving each applicable notice
and on the date of the commencement of each respective Extension Period and (c)
the original Tenant named in this Lease or its Affiliate is itself occupying the
entire Premises both at the time of giving the applicable notice and at the time
of commencement of the applicable Extension Period. Except for the amount of
Annual Fixed Rent (which is to be determined as hereinafter provided), all the
terms, covenants, conditions, provisions and agreements in the Lease contained
shall be applicable to the additional periods through which the Term of this
Lease shall be extended as aforesaid, except that there shall be no further
options to extend the Term of this Lease beyond the Second Extension Period, nor
shall Landlord be obligated to make or pay for any improvements to the Premises
nor pay any inducement payments of any kind or nature. If Tenant shall give
notice of its exercise of each such option to extend in the manner and within
the time period provided aforesaid, the Term of this Lease shall be extended
upon the giving of each such notice without the requirement of any further
attention on the part of either Landlord or Tenant except to the extent
necessary to determine the Annual Fixed Rent as hereafter set forth. Landlord
hereby reserves the right, exercisable by Landlord in its sole discretion, to
waive (in writing) any condition precedent set forth in clauses (a), (b) or (c)
above.
If Tenant shall fail to give timely notice of the exercise of any such option as
aforesaid or if any of the conditions set forth above are not satisfied as and
when specified herein, Tenant shall have no right to extend the Original Term of
this Lease, time being of the essence of the foregoing provisions. Failure of
Tenant to timely exercise its option with respect to the First Extension Period
shall terminate Tenant's rights with respect to the option for the Second
Extension Period. Any termination of this Lease Agreement shall terminate the
rights hereby granted Tenant.
The Annual Fixed Rent payable for each twelve (12) month period during each
Extension Period shall be 97.5% of the Fair Market Rental Value (as said term is
hereinafter defined) calculated an each case as of commencement of the
applicable Extension Period but in no event less than the Annual Fixed Rent plus
Additional
Rent per annum payable for and with respect to the 12 calendar month period
immediately preceding commencement of the applicable Extension Period. "Fair
Market Rental Value" shall be computed as of the beginning of the applicable
Extension Period at the then current annual rental charges, including provisions
for subsequent increases and adjustments, for leases then currently being
negotiated or executed in comparable space and buildings located in 9/90
Corporate Center and other similar first class office buildings in Framingham,
MA. In determining Fair Market Rental Value, the following factors, among
others, shall be taken into account and given effect: size of the premises,
location of the premises, location of the building, allowances or lack of
allowances (if any) and lease term.
Dispute as to Fair market Value. Landlord shall initially designate the Fair
Market Rental Value and shall furnish data in support of such designation to
Tenant. If Tenant disagrees with Landlord's designation of the Fair Market
Rental value, Tenant shall have the right, by written notice given to Landlord
within thirty (30) days after Tenant has been notified of Landlord's
designation, to submit such Fair Market Rental value to arbitration as follows:
Fair Market Rental Value shall be determined by agreement between Landlord and
Tenant but if Landlord and Tenant are unable to agree upon the Fair Market
Rental Value at least seven (7) months prior to the date upon which the Fair
Market Rental Value is to take effect, then the Fair Market Rental Value shall
be determined by appraisal as follows: The Landlord and Tenant shall each
appoint a Qualified Appraiser (as said term is hereinafter defined) at least six
(6) months prior to the commencement of the period for which Fair Market Rental
value is to be determined and shall designate the Qualified Appraiser so
appointed by notice to the other party. The two appraisers so appointed shall
meet within ten (10) days after both appraisers are designated in an attempt to
agree upon the Fair Market Rental Value for the applicable Extension Period and
if, within fifteen (15) days after both appraisers are designated, the two
appraisers do not agree upon the Fair Market Rental Value, then each appraiser
shall, not later than thirty (30) days after both appraisers have been chosen,
deliver a written report to both the Landlord and Tenant setting forth the Fair
Market Rental value as determined by each such appraiser taking into account the
factors set forth in this Exhibit G. If the lower of the two determinations of
Fair Market Rental Value as determined by such two appraisers is equal to or
greater than 95% of the higher of the Fair Market Rental Value as determined by
such two appraisers, the Fair Market Rental value shall be deemed to be the
average of such Fair Market Rental value as set forth in such two
determinations. If the lower determination of Fair Market Rental Value is less
than 95% of the higher determination of Fair Market Rental Value, the two
appraisers shall promptly appoint a third Qualified Appraiser and shall
designate such third Qualified Appraiser by notice to Landlord and Tenant. The
cost and expenses of each appraiser appointed separately by Tenant and Landlord
shall be borne by the party who appointed the appraiser. The cost and expenses
of the third appraiser shall be shared equally by Tenant and Landlord. If the
two appraisers cannot agree on the identity of the third Qualified Appraiser at
least three (3) months prior to commencement of the period for which Fair Market
Rental Value to be determined, then the third Qualified Appraiser shall be
appointed by the American Arbitration Association ("AAA") sitting in Boston,
Massachusetts and acting in accordance with its rules and regulations. The costs
and expenses of the AAA proceeding shall be borne equally by the Landlord and
Tenant. The third appraiser shall promptly make its own independent
determination of Fair Market Rental Value for the Premises taking into account
the factors set forth in this Exhibit G and shall promptly notify Landlord and
Tenant of his determination. If the determinations of the Fair Market Rental
Value of any two of the appraisers shall be identical in amount, said amount
shall be deemed to be the Fair Market Rental Value for the Premises. If the
determinations of all three appraisers shall be different in amount, the average
of the two nearest in amount shall be deemed the Fair Market Rental Value. The
Fair Market Rental Value of the subject space determined in accordance with the
provisions of this Section shall be binding and conclusive on Tenant and
Landlord. As indicated above, in no event shall the Fair Market Rental Value be
less than the Annual Fixed Rent plus Additional Rent applicable to the 12
calendar month period immediately preceding the commencement of the applicable
Extension Period. As used herein, the term "Qualified Appraiser" shall mean any
disinterested person (a) who is employed by an appraisal firm of recognized
competence in the greater Boston area, (b) who has not less than ten (10) years
experience in appraising and valuing properties of the general location, type
and character as the Premises, and (c) who is either a Senior Real Property
Appraiser of the Society of Real Estate Appraisers or a member of the Appraisal
Institute (or any successor organization). Notwithstanding the foregoing, if
either party shall fail to appoint its appraiser within the period specified
above (such party referred to hereinafter as the "Failing Party"), the other
party may serve notice on the Failing Party requiring the Failing Party to
appoint its appraiser within ten (10) days of the giving of such notice and if
the Failing Party shall not respond by appointment of its appraiser within said
ten (10) day period, then the appraiser appointed by the other party shall be
the sole appraiser whose determination of Fair Market Rental Value shall be
binding and conclusive upon Tenant and Landlord. If, for any reason, Fair Market
Rental Value shall not have been determined by the time of commencement of the
Extension Period and until such rent is determined, Tenant shall pay Annual
Fixed Rent during the Extension Period in an amount (the "Interim Rent") equal
to the Annual Fixed Rent plus Additional Rent payable during the twelve (12)
month period immediately preceding the Extension Period and upon receipt of a
final determination of Fair Market Rental Value as hereinabove set forth, any
overpayment or underpayment of Interim Rent shall be paid promptly to the party
entitled to receive the same.
Witness our hands and seals this day of March, 1999.
Landlord: NDNE 9/90 CORPORATE CENTER LLC
By: ________________________________
Its: ________________________________
Tenant: GENZYME TRANSGENICS CORPORATION
By: ________________________________
Its: ________________________________
Exhibit J
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
THIS AGREEMENT is made this _____ day of March, 1999, by and among Genzyme
Transgenics Corporation ("Tenant"), NDNE 9/90 Corporate Center LLC ("Landlord")
and UNUM Life Insurance Company of America ("Mortgagee").
WITNESSETH:
WHEREAS, Landlord is the owner and holder of fee simple title in and to
certain real property (the "Premises") situated in Framingham, County of
Middlesex, Commonwealth of Massachusetts and described in Exhibit A attached
hereto and by this reference made a part thereof; and
WHEREAS, Landlord and Tenant have entered into an Agreement of Lease (the
"Lease") dated as of March 26, 1999 demising a part of the Premises (the "Leased
Premises") to Tenant; and
WHEREAS, Landlord has made, executed and delivered to Mortgagee a certain
Note (the "Note") dated December 14, i998, which Note is secured by a Mortgage
and Security Agreement (the "Mortgage") of the Premises of even date with the
Note, which Mortgage was filed for record in the Middlesex (South Registry of
Deeds ("Registry") on December 14, 1998 as Instrument Number 1100 prior to the
recording of this Agreement; and
WHEREAS, the Lease was assigned by Landlord to Mortgagee by an Assignment
of Rents, Leases and Other Benefits (the "Assignment"), filed for record in the
aforesaid Office simultaneously with the recording of the Mortgage and prior to
the recording of this Agreement;
NOW, THEREFORE, in consideration of the mutual promises herein contained
and other good and valuable consideration, the receipt and sufficiency whereof
are hereby acknowledged, Tenant, Landlord, and Mortgagee, intending to be
legally bound hereby, covenant and agree as follows:
1. The Lease and Tenant's leasehold estate created thereby, including all
rights and options to purchase the Leased Premises, shall be and are completely
and unconditionally subject and subordinate to the lien of the Mortgage and to
all the terms, conditions and provisions thereof, to all advances made or to be
made thereunder, and to any renewals, extensions, modifications or replacements
thereof, provided, however, that at anytime hereafter, at the election of the
Mortgagee Mortgagee shall have the right to declare the Lease superior to the
lien, provisions, operation and effect of the Mortgage.
2. In the event Mortgagee obtains title to the Leased Premises through
foreclosure or deed in lieu of foreclosure under the Mortgage and provided that
Tenant is not in default under any provision of the Lease beyond any applicable
notice, cure or grace periods and is then in possession of the Leased Premises
neither the right of possession of Tenant to the Leased Premises nor (except as
otherwise expressly provided in this agreement) shall any of the Tenant's other
rights
under the Lease be affected or disturbed, and Tenant agrees to continue
occupancy of the Leased Premises under the same terms and conditions of the
Lease and will attorn to the Mortgagee, its successors and assigns, to the same
extent and with the same force as if Mortgagee were the Landlord under the
Lease.
3. By virtue of the Assignment, Mortgagee shall be entitled, but not
obligated, to exercise the claims, rights, powers, privileges, options and
remedies of the Landlord under the Lease and shall be further entitled to the
benefits of, and to receive and enforce performance of, all of the covenants to
be performed by Tenant under the Lease as though Mortgagee were named therein as
the Landlord.
4. Mortgagee shall not, by virtue of the Assignment or this Agreement, be
or become subject to any liability or obligation to Tenant under the Lease or
otherwise, until Mortgagee shall have obtained title to the Leased Premises, by
foreclosure or otherwise, and then only to the extent of liabilities or
obligations accruing subsequent to the date that Mortgagee has obtained title to
the Leased Premises. Furthermore, notwithstanding the foregoing to the contrary,
Mortgagee shall not be liable for: (a) the completion of the Leased Premises or
any improvements for Tenant's use and occupancy; (b) latent and/or patent
defects in construction of the Leased Premises or any other part of the
Premises; (c) breach of any representation or warranty in the Lease (including,
but not limited to those relating to use, compliance with zoning, landlord's
title, landlord's authority. habitability and/or fitness for a particular
purpose) made or given by any prior landlord; (d) loss or damages resulting from
environmental contamination not caused by Mortgagee; (e) consequential or
punitive damages; or (f) for any reason, any amount in excess of the value of
Mortgagee's interest in the Premises. Notwithstanding the foregoing to the
contrary, the provisions of this paragraph 4 shall not be deemed or construed to
relieve Mortgagee from any ongoing maintenance and repair obligations of the
Landlord under Section 8.2 of the Lease even if the need for such repair or
maintenance arose (without fault of Tenant) prior to the date Mortgagee obtains
title.
5. Tenant shall not pay an installment of rent or any part thereof more
than one month prior to the due date of such installment, and Mortgagee shall be
entitled to recover from Tenant, as rent under the Lease any payment of rent or
additional rent made by Tenant to Landlord for more than one month in advance,
and Mortgagee shall not be bound or affected by any amendment or modification of
the Lease, made without the written consent of Mortgagee, which consent shall
not be unreasonably withheld.
6. Tenant shall not agree to an early buyout of its lease obligations
without the prior written consent of Mortgagee. In the event such consent is
given, Tenant agrees to deliver the buyout monies in full to Mortgagee.
7. To the extent permitted by law, Tenant and Landlord agree that
Mortgagee shall be entitled to all payments made by Tenant under the federal
Bankruptcy Code (and/or similar state creditor's rights law) as the result of
Tenant rejecting the Lease. Such lease rejection payments shall be made by
Tenant directly to Mortgagee.
8. After notice is given to Tenant by Mortgagee, pursuant to the
Assignment, that the rentals under the Lease should be paid to Mortgagee, Tenant
shall pay to Mortgagee, or in accordance with the
directions of Mortgagee, all rentals and other monies due and to become due to
the Landlord under the Lease, and Landlord hereby irrevocably authorizes Tenant
to make such payments to Mortgagee and hereby releases and discharges Tenant of,
and from any liability to Landlord on account of any such payments.
9. This Agreement shall inure to the benefit of and shall be binding upon
Tenant, Landlord and Mortgagee, and their respective heirs, personal
representatives, successors and assigns. In the event any one or more of the
provisions contained in this Agreement shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall, at the option of Mortgagee, not affect any other
provisions of this Agreement, but this Agreement shall be construed as if such
invalid, illegal or unenforceable provision had never been contained herein.
This Agreement shall be governed by and construed according to the laws of the
Commonwealth of Massachusetts.
10. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instruments.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed the day and year first above written.
TENANT:
Genzyme Transgenics Corporation
By: ________________________________
Its: ________________________________
LANDLORD:
NDNE 9/90 Corporate Center LLC
By: NDNE 9/90, Inc.
Its: Manager
By: ________________________________
Xxxx X. X'Xxxx, III
Its: Executive Vice President
MORTGAGEE:
UNUM Life Insurance Company of America
By: ________________________________
Its: ________________________________
STATE OF ______________________
COUNTY OF _____________________, ss ______________________, 19__
Then personally appeared the above-named ___________________ and
acknowledged the foregoing instrument to be his free act and deed, in his said
capacity, and the free act and deed of said ___________________.
____________________________
Notary Public
STATE OF ______________________
COUNTY OF _____________________, ss ______________________, 19__
Then personally appeared the above-named ___________________ and
acknowledged the foregoing instrument to be his free act and deed, in his said
capacity, and the free act and deed of said ___________________.
____________________________
Notary Public
STATE OF ______________________
COUNTY OF _____________________, ss ______________________, 19__
Then personally appeared the above-named ___________________ and
acknowledged the foregoing instrument to be his free act and deed, in his said
capacity, and the free act and deed of said ___________________.
____________________________
Notary Public
NDNE51
EXHIBIT "A"
FOR
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
