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Exhibit 10.18
I N D E X T O L E A S E
FROM
TRUSTEES OF ONE CAMBRIDGE CENTER TRUST
TO
THE MEDICINES COMPANY
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ARTICLE
NUMBER CAPTION PAGE
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ARTICLE I BASIC LEASE PROVISIONS AND
ENUMERATIONS OF EXHIBITS 1
ARTICLE II PREMISES 4
ARTICLE III LEASE TERM 4
ARTICLE IV DELIVERY 5
ARTICLE V ANNUAL FIXED RENT AND ELECTRICITY 5
ARTICLE VI TAXES 6
ARTICLE VII LANDLORD'S REPAIRS AND SERVICES AND TENANT'S
ESCALATION PAYMENTS 8
ARTICLE VIII TENANT'S REPAIRS 13
ARTICLE IX ALTERATIONS 14
ARTICLE X PARKING 16
ARTICLE XI CERTAW TENANT COVENANTS 18
ARTICLE XII ASSIGNMENT AND SUBLETTING 20
ARTICLE XIII INDEMNITY AND COMMERCIAL GENERAL LIABILITY
INSURANCE 22
ARTICLE XIV FIRE, CASUALTY AND TAKING 23
ARTICLE XV DEFAULT 26
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ARTICLE XVI BANKRUPTCY OR INSOLVENCY 29
ARTICLE XVII MISCELLANEOUS PROVISIONS 31
Section 17.1 Waiver
Section 17.2 Cumulative Remedies
Section 17.3 Quiet Enjoyment
Section 17.4 Surrender
Section 17.5 Brokerage
Section 17.6 Invalidity of Particular Provisions
Section 17.7 Provisions Binding, Etc.
Section 17.8 Recording
Section 17.9 Notices and Time for Action
Section 17.10 When Lease Becomes Binding
Section 17.11 Paragraph Headings
Section 17.12 Rights of Mortgagee
Section 17.13 Rights of Ground Lessor
Section 17.14 Notice to Mortgagee and Ground Lessor
Section 17.15 Assignment of Rents
Section 17.16 Status Report and Financial Statements
Section 17.17 Self-Help
Section 17.18 Holding Over
Section 17.19 Entry by Landlord
Section 17.20 Tenant's Payments
Section 17.21 Late Payment
Section 17.22 Counterparts
Section 17.23 Entire Agreement
Section 17.24 Landlord Liability
Section 17.25 No Partnership
Section 17.26 Security Deposit
Section 17.27 Governing Law
EXHIBIT A-1 -- Description Of Site
EXHIBIT A-2 -- Loading Dock Plan
EXHIBIT B -- Intentionally Omitted
EXHIBIT C -- Intentionally Omitted
EXHIBIT D -- Landlord's Services
EXHIBIT E -- Floor Plan
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EXHIBIT F -- Development Area Map
EXHIBIT G -- Intentionally Omitted
EXHIBIT H -- Memorandum Re: Procedure For Adjustment Of Electricity Costs
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THIS INSTRUMENT IS AN INDENTURE OF LEASE in which the Landlord and the
Tenant are the parties hereinafter named, and which relates to space in the
building (the "Building") known as, and having an address at, Xxx Xxxxxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx.
The parties to this instrument hereby agree with each other as follows:
ARTICLE I
BASIC LEASE PROVISIONS AND ENUMERATIONS OF EXHIBITS
1.1 INTRODUCTION. The following sets forth the basic data and identifying
Exhibits elsewhere hereinafter referred to in this Lease, and, where
appropriate, constitute definitions of the terms hereinafter listed.
1.2 BASIC DATA.
Date: March 15, 1997
Landlord: XXXXXXXX X. XXXXXXXXX, XXXXXX X.
XXXXX AND XXXXX XXXXXXX, AS
TRUSTEES OF ONE CAMBRIDGE CENTER
TRUST under Declaration of Trust
dated May 14, 1985, recorded with
the Middlesex South District
Registry of Deeds in Book 16221,
Page 413, as amended by instrument
dated July 31, 1986 and recorded
with said Registry of Deeds in Book
17438, Page 23, but not
individually.
Present Mailing Address of Landlord: c/o Boston Properties, Inc.
0 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Landlord's Construction Representative: Xxxxxxx X. Xxxxxxxxx
Tenant: The Medicines Company, a Delaware corporation
Present Mailing Address: Xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Tenant's Construction Representative: Xxxxx Xxxxxxxx
Lease Term: (sometimes called the Fifteen (15) calendar months commencing on
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"Original Lease Term") April 1, 1997 and expiring June 30, 1998,
unless sooner terminated as hereinafter
provided.
Lease Year: A period of twelve (12) consecutive calendar
months, commencing on the first day of
January in each year, except that the first Lease
Year of the Lease Term hereof shall be the
period commencing on the Commencement Date and
ending on the succeeding December 3 1, and the
last Lease Year of the Lease Term hereof shall
be the period commencing on January I of the
calendar year in which the Lease Term ends, and
ending with the date on which the Lease Term ends.
Commencement Date: April 1, 1997, subject to the terms of Section
3.1 hereof.
Premises: A portion of the fourth floor of the Building,
in accordance with the floor plan annexed
hereto as Exhibit E and incorporated herein by
reference, as further defined and limited in
Section 2.1 hereof.
Rentable Floor Area of the Premises: 4,063 square feet, including a proportionate
share of common areas of the Building outside
of the Premises'.
Annual Fixed Rent: During the Original Lease Term at the annual
rate of $113,764.00, being the product of (i)
$28.00 and (ii) the "Rentable Floor Area of
the Premises" (hereinabove defined in this
Section 1.2).
Tenant Electricity: Initially as provided in Section 5.1 hereof,
subject to adjustment as provided in Section
5.2 and Section 7.5 hereof.
Additional Rent: All charges and other sums payable to Tenant
as set forth in this Lease, in addition to
Annual Fixed Rent.
Initial Minimum Limits of Tenant's Commercial $5,000,000 combined single limit per
General Liability Insurance: occurrence on a per location basis.
Total Rentable Floor Area of the Building: 215,686 square feet.
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Lot or Site: All, and also any part of, the property
described in Exhibit A-1, plus any
additions or reductions thereto resulting
from the change of any abutting street line.
The terms Lot and Site are used interchangeably
in this instrument.
Property: The Building and Lot or Site.
Loading Dock: The service dock and related driveway providing
vehicular service access for the Building as
shown on Exhibit A-2.
Development Area: The area of the Cambridge Center development, as
shown on Exhibit F.
Permitted Use: General Office use.
Broker: Whittier Partners Group Company
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Security Deposit: $9,480.34
1.3 ENUMERATION OF EXHIBITS.****PARAGRAPH ON ORIGINAL DOCUMENT IS
ILLEGIBLE ****
Exhibit A-1 Description of the Site.
Exhibit A-2 Loading Dock Plan.
Exhibit B Intentionally Omitted.
Exhibit C Intentionally Omitted.
Exhibit D Landlord's Services.
Exhibit E Floor Plan.
Exhibit F Development Area Map.
Exhibit G Intentionally Omitted.
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Exhibit H Memorandum Re: Procedure for Adjustment of
Electricity Costs.
ARTICLE II
PREMISES
2.1 DEMISE AND LEASE OF PREMISES. Landlord hereby demises and leases to
Tenant, and Tenant hereby hires and accepts from Landlord, the Premises
in the Building, excluding exterior faces of exterior walls, the common
stairways and stairwells, elevators and elevator walls, mechanical
rooms, electric and telephone closets, janitor closets, and pipes,
ducts, shafts, conduits, wires and appurtenant fixtures serving
exclusively or in common other parts of the Building, and if the
Premises includes less than the entire rentable area of any floor,
excluding the common corridors, elevator lobbies and toilets located on
such floor.
2.2 APPURTENANT RIGHTS AND RESERVATIONS. Tenant shall have, as appurtenant
to the Premises, the non-exclusive right to use in common with others,
but not in a manner or extent that would interfere with the normal
operation and use of the Building as a multi-tenant office building and
subject to reasonable rules of general applicability to tenants of the
Building from time to time made by Landlord of which Tenant is given
notice: (a) the common lobbies, corridors, stairways, and elevators of
the Building, and the pipes, ducts, shafts, conduits, wires and
appurtenant meters and equipment serving the Premises in common with
others, (b) the Loading Dock and the common walkways and driveways
necessary for access to the Building, (c) if the Premises include less
than the entire rentable floor area of any floor, the common toilets,
corridors and elevator lobby of such floor and (d) common areas within
Parcel 4 of the Development Area. 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, wires and appurtenant fixtures, wherever located in the
Premises or the Building, and (b) to alter or relocate any other common
facility, provided that substitutions are substantially equivalent or
better. Installations, replacements and relocations referred to in
clause (a) above shall be located so far as practicable in the central
core area of the Building, above ceiling surfaces, below floor surfaces
or within perimeter walls of the Premises. Except in the case of
emergencies, Landlord agrees to use its best efforts to give Tenant
reasonable advance notice of any of the foregoing activities which
require work in the Premises and to use reasonable efforts not cause
unreasonable interference with Tenant's use of and access to the
Premises.
ARTICLE III
LEASE TERM
3.1 TERM. The Term of this Lease shall be the period specified in Section
1.2 hereof as the "Lease Term", unless sooner terminated as herein
provided. The Commencement Date of the Lease Term shall be the date set
forth in Section 1.2 hereof as the "Commencement Date", unless Landlord
is unable to deliver the Premises to Tenant in accordance with the
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provisions of Section 4.1 hereinbelow as of such date, in which event
the Commencement Date shall be the date the Premises are so delivered.
ARTICLE IV
DELIVERY
4.1 DELIVER . Landlord shall deliver the Premises to Tenant broom-clean and
free from all occupants but otherwise in "as is" condition and Landlord
shall have no obligation to perform any additions, alterations or
demolition in the Premises nor shall Landlord be responsible for the
installation or connection of Tenant's telephone or other
communications systems or equipment. If the occupant of the Premises as
of the Date of this Lease (the "Existing Tenant") fails to deliver
possession of the Premises at the time when its tenancy is scheduled to
expire (being March 31, 1997), Landlord shall use reasonable efforts
and due diligence (which shall be limited to the commencement and
prosecution thereafter of eviction proceedings but shall not require
the taking of any appeal) to evict such occupant from such space and to
deliver possession of the Premises to Tenant. If Landlord is unable to
deliver possession of the Premises to Tenant by May 15, 1997, Tenant
may terminate this Lease without recourse to either party by written
notice given by Tenant to Landlord prior to the first to occur of (i)
the date Landlord delivers the Premises to Tenant or (ii) June 1,
1997.. Commencement of the term of Tenant's occupancy and lease of the
Premises shall, in the event of such holding over by such occupant, be
deferred until possession of the Premises is delivered to Tenant.
Tenant's right of termination contained in this paragraph shall be
Tenant's sole and exclusive remedy for the failure of the Existing
Tenant to so vacate the Premises.
ARTICLE V
ANNUAL FIXED RENT AND ELECTRICITY
5.1 FIXED RENT AND ELECTRICITY CHARGES. Tenant agrees to pay to Landlord,
or as directed by Landlord, at Landlord's Present Mailing Address
specified in Section 1.2 hereof, or at such other place as Landlord
shall from time to time designate by notice, (a) on the Commencement
Date, and thereafter monthly, in advance, on the first day of each and
every calendar month during the Original Lease Term, a sum equal to
one-twelfth (1/12) of the Annual Fixed Rent specified in Section 1.2
hereof and (b) on the Commencement Date and thereafter monthly, in
advance, on the first day of each and every calendar month during the
Original Lease Term, a sum equal to one-twelfth (1/12) of $1.00 per
annum for each square foot of Rentable Floor Area of the Premises for
Tenant Electricity subject to adjustment as provided in Section 5.2 and
Section 7.5 hereof. Until notice of some other designation is given,
Annual Fixed Rent and all other charges for which provision is herein
made shall be paid by remittance to or to the order of BOSTON
PROPERTIES, INC., Agents at 0 Xxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000, and all remittances received by BOSTON PROPERTIES, INC., as
Agents as aforesaid, or by any subsequently designated recipient, shall
be treated as a payment to Landlord.
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Annual Fixed Rent for any partial month shall be paid by Tenant to Landlord at
such rate on a pro rata basis, and, if the Commencement Date shall be other than
the first day of a calendar month, the first payment which Tenant shall make to
Landlord shall be a payment equal to a proportionate part of such monthly Annual
Fixed Rent for the partial month from the Commencement Date to the first day of
the succeeding calendar month.
Other charges payable by Tenant on a monthly basis, as elsewhere provided in
this Lease, likewise shall be prorated, and the first payment on account thereof
shall be determined in similar fashion and shall commence on the Commencement
Date and other provisions of this Lease calling for monthly payments shall be
read as incorporating this undertaking by Tenant.
The Annual Fixed Rent and all other charges for which provision is made in this
Lease shall be paid by Tenant to Landlord without setoff, deduction or
abatement.
5.2 REALLOCATION OF ELECTRICITY CHARGES. Notwithstanding the provisions of
Section 5.1 relating to the payment by Tenant for the cost of
electricity, if and to the extent that Landlord is permitted from time
to time by then applicable law, ordinance, rule, regulation and utility
company policy, Landlord may reallocate the cost of electricity to
tenants of the Building (including, but not limited to, Tenant herein)
in accordance with the procedure contained in Exhibit H, and Tenant
shall pay for electricity as provided in said Exhibit H. If Landlord
does not so reallocate the cost of electricity as aforesaid, Tenant
shall pay the charge for electricity as specified in Section 5.1 hereof
and additional adjustment payments shall be made in the manner
specified in Section 7.5 hereof.
ARTICLE VI
TAXES
6.1 DEFINITIONS. With reference to the real estate taxes referred to in
this Article VI, it is agreed that terms used herein are defined as
follows:
(a) "Tax Year" means the 12-month period beginning July I each
year during the Lease Term or if the appropriate Governmental
tax fiscal period shall begin on any date other than July 1,
such other date.
(b) "Landlord's Tax Expenses Allocable to the Premises" means the
same proportion of Landlord's Tax Expenses as Rentable Floor
Area of Tenant's Premises bears to 95% of the Total Rentable
Floor Area of the Building.
(c) "Landlord's Tax Expenses" with respect to any Tax Year means
the aggregate "real estate taxes" (hereinafter defined) with
respect to that Tax Year, reduced by any net abatement
receipts with respect to that Tax Year; provided, however,
that if in any Tax Year an abatement has been obtained on
account of vacancies in the Building, or if the real estate
taxes had initially been assessed in an amount to reflect such
vacancies then Landlord's Tax Expenses shall be determined to
be an amount equal to the taxes which would
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normally be expected to have been assessed had occupancy been
ninety-five percent (95%) as of the reference date or period
on which or in relation to which such assessment was made. For
this purpose, taxes on properties comparable to the Property
may be used as a reference (specifically including the
buildings known as Four and Five Cambridge Center) if such
properties were occupied at ninety-five percent (95%) more or
less during the relevant period.
(d) "Real estate taxes" means all taxes and special assessments of
every kind and nature assessed by any Governmental authority
on the Site or the Building or the Property which the Landlord
shall be obligated to pay because of or in connection with the
ownership, leasing and operation of the Site and the Building
and reasonable expenses of any proceedings for abatement of
taxes. The amount of special taxes or special assessments to
be included shall be limited to the amount of the installment
(plus any interest other than penalty interest payable
thereon) of such special tax or special assessment required to
be paid during the year in respect of which such taxes are
being determined. There shall be excluded from such taxes all
income, estate, succession, inheritance and transfer taxes;
provided, however, that if at any time during the Lease Term
the present system of ad valorem taxation of real property
shall be changed so that in lieu of, or in addition to, the
whole or any part of the ad valorem tax on real property,
there shall be assessed on Landlord a capital levy or other
tax on the gross rents received with respect to the Site or
Building, 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 in the
jurisdiction in which the Property is located) measured by or
based, in whole or in part, upon any such gross rents, then
any and all of such taxes, assessments, levies or charges, to
the extent so measured or based, shall be deemed to be
included within the term "real estate taxes" but only to the
extent that the same would be payable if the Site or Building
were the only property of Landlord.
(e) "Base Taxes" means Landlord's Tax Expenses (hereinbefore
defined) for fiscal tax year 1997 (that is the period
beginning July 1, 1996 and ending June 30, 1997).
(f) "Base Taxes Allocable to the Premises" means the same
proportion of Base Taxes as the Rentable Floor Area of
Tenant's Premises bears to 95% of the Total Rentable Floor
Area of the Building.
6.2 TENANT'S SHARE OF REAL ESTATE TAXES. If with respect to any full Tax
Year or fraction of a Tax Year falling within the Lease Term Landlord's
Tax Expenses Allocable to the Premises for a full Tax Year exceed Base
Taxes Allocable to the Premises or for any such fraction of a Tax Year
exceed the corresponding fraction of Base Taxes Allocable to the
Premises (such amount being hereinafter referred to as the "Tax
Excess"), then Tenant shall pay to Landlord, as additional rent, the
amount of such Tax Excess. Payments by Tenant on account of the Tax
Excess shall be made monthly at the time and in the fashion herein
provided for the payment of Annual Fixed Rent. The
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amount so to be paid to Landlord shall be an amount from time to time
reasonably estimated by Landlord to be sufficient to provide Landlord,
in the aggregate, a sum equal to the Tax Excess, ten (10) days at least
before the day on which tax payments by Landlord would become
delinquent. Not later than ninety (90) days after Landlord's Tax
Expenses Allocable to the Premises are determinable for the first such
Tax Year or fraction thereof and for each succeeding Tax Year or
fraction thereof during the Lease Term, Landlord shall render Tenant a
statement in reasonable detail certified by a representative of
Landlord showing for the preceding year or fraction thereof, as the
case may be, real estate taxes on the Building and Lot, abatements and
reftinds, if any, of any such taxes and assessments, expenditures
incurred in obtaining such abatement or reftind, the amount of the Tax
Excess, the amount thereof already paid by Tenant and the amount
thereof overpaid by, or remaining due from Tenant for the period
covered by such statement. Within thirty (30) days after the receipt of
such statement, Tenant shall pay any sum remaining due. Any balance
shown as due to Tenant shall be credited against Annual Fixed Rent next
due, or refunded to Tenant if the Lease Term has then expired and
Tenant has no further obligation to Landlord. Expenditures for legal
fees and for other expenses incurred in obtaining an abatement or
refund may be charged against the abatement or refund before the
adjustments are made for the Tax Year.
To the extent that real estate taxes shall be payable to the taxing authority in
installments with respect to periods less than a Tax Year, the statement to be
furnished by Landlord shall be rendered and payments made on account of such
installments.
ARTICLE VII
LANDLORD'S REPAIRS XXX.XXXXXXXX AND
TENANT'S ESCALATION PAYMENTS
7.1 STRUCTURAL REPAIRS. Except for (a) normal and reasonable wear and use
and (b) damage caused by fire or other casualty and by eminent domain,
Landlord shall, throughout the Lease Term, at Landlord's sole cost and
expense, keep and maintain in good order, condition and repair the
following portions of the Building: the structural portions of the
roof, the exterior and load bearing walls, the foundation, the
structural columns and floor slabs and other structural elements of the
Building; provided however, that Tenant shall pay to Landlord, as
Additional Rent, the cost of any and all such repairs which may be
required as a result of repairs, alterations, or installations made by
Tenant or any subtenant, assignee, licensee or concessionaire of Tenant
or any agent, servant, employee or contractor of any of them or to the
extent of any loss, destruction or damage caused by the omission or
negligence of Tenant, any assignee or subtenant or any agent, servant,
employee, customer, visitor or contractor of any of them.
7.2 OTHER REPAIRS TO BE MADE BY LANDLORD. Except as otherwise provided in
this Lease and subject to provisions for reimbursement by Tenant as
contained in Section 7.5, Landlord agrees to keep and maintain in good
order, condition and repair the common areas and facilities of the
Building, including heating, ventilating, air conditioning, plumbing
and other Building systems equipment servicing the Premises, except
that Landlord shall in no event be responsible to Tenant for (a) the
condition of glass in and about the Premises (other than for glass in
exterior walls for which Landlord shall be responsible unless the
damage thereto is attributable to Tenant's negligence or
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misuse, in which event the responsibility therefor shall be Tenant's),
or (b) for any condition in the Premises or the Building caused by any
act or neglect of Tenant or any agent, employee, contractor, assignee,
subtenant or invitee of Tenant. Without limitation, Landlord shall not
be responsible to make any improvements or repairs to the Building or
the Premises other than as expressly provided in Section 7.1 or in this
Section 7.2, unless expressly otherwise provided in this Lease.
7.3 SERVICES TO BE PROVIDED BY LANDLORD. In addition, and except as
otherwise provided in this Lease and subject to provisions for
reimbursement by Tenant as contained in Section 7.5 and Tenant's
responsibilities in regard to electricity as provided in Section 5.2,
Landlord agrees to furnish services, utilities, facilities and supplies
set forth in Exhibit D hereto equal in quality comparable to those
customarily provided by landlords in high quality buildings in
Cambridge. In addition, Landlord agrees to furnish, at Tenant's
expense, reasonable additional Building operation services which are
usual and customary in similar buildings in Cambridge, and such
additional special services as may be mutually agreed upon by Landlord
and Tenant, upon reasonable and equitable rates from time to time
established by Landlord.
7.4 OPERATING COSTS DEFINED. "Operating Expenses Allocable to the Premises"
means the same proportion of the Operating Expenses for the Property as
Rentable Floor Area of the Premises bears to 95% of the Total Rentable
Floor Area of the Building. "Base Operating Expenses" means Operating
Expenses for the Property (as hereinafter defined) for calendar year
1997 (that is the period beginning January 1, 1997 and ending December
31, 1997). "Base Operating Expenses Allocable to the Premises" means
the same proportion of Base Operating Expenses as the Rentable Floor
Area of Tenant's Premises bears to 95% of the Total Rentable Floor Area
of the Building. "Operating Expenses for the Property" means the cost
of operation of the Property incurred by Landlord, including those
incurred in discharging Landlord's obligations under Sections 7.2 and
7.3. Such costs shall exclude (i) payments of debt service and any
other mortgage charges, including, principal, interest and points (ii)
brokerage corrimissions and legal fees incurred in the leasing of space
in the Building, (iii) salaries of executives and owners not directly
employed in the management or operation of the Building, (iv) the
general overhead and administrative expenses of the home office of
Landlord or Landlord's managing agent, (v) costs of special services
rendered to tenants (including Tenant) for which a separate charge is
made, (vi) the cost of any item or service to the extent to which
Landlord is actually reimbursed or compensated by insurance, any tenant
or any third party, (vii) real estate taxes, provided that real estate
taxes are payable as provided in Section 6.2, (viii) penalties,
interest and legal expenses for late payment of any obligation of
Landlord, including, without limitation, taxes, insurance, and
equipment leases, (ix) costs incurred in performing tenant improvements
for any tenant, (x) all capital expendituies, except as otherwise
explicitly provided in this Section 7.4, (xi) the cost of testing,
remediation or removal of "Hazardous Materials" (as defined in Section
11.2) in the Building or on the Site as required by "Hazardous
Materials Laws" (as defined in Section 11.2), (xii) legal fees and
other costs associated with the enforcement of any lease of space in
the Building, (xiii) the cost of any service or materials provided by
Landlord or its affiliates, to the extent such costs exceed the
reasonable cost for such services or materials absent such relationship
in buildings similar to the Building in the vicinity of the Building,
and (xiv)
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advertising and promotional expenses incurred in connection with
leasing space in the Building, but shall include, without limitation:
(a) compensation, wages and all fringe benefits, workmen's
compensation insurance premiums and payroll taxes paid to, for
or with respect to all persons for their services in the
operating, maintaining or cleaning of the Building or the
Site;
(b) payments under service contracts with independent contractors
for operating, maintaining or cleaning of the Building or the
Site;
(c) steam, water, sewer, gas, oil, electricity and telephone
charges (excluding such utility charges separately chargeable
to tenants for additional or separate services and electricity
charges paid by Tenant in the manner set forth in Section 5.2)
and costs of maintaining letters of credit or other security
as may be required by utility companies as a condition of
providing such services;
(d) cost of maintenance, cleaning and repairs (other than repairs
not properly chargeable against income or reimbursed from
contractors under guarantees);
(e) cost of snow removal and care of landscaping;
(f) cost of building and cleaning supplies and equipment;
(g) premiums for insurance carried with respect to the Property
(including, without limitation, liability insurance, insurance
against loss in case of fire or casualty and of monthly
installments of Annual Fixed Rent and any Additional Rent
which may be due under this Lease and other leases of space in
the Building for not more than twelve (12) months in the case
of both Annual Fixed Rent and Additional Rent and, if there be
any first mortgage on the Property, including such insurance
as may be required by the holder of such first mortgage);
(h) management fees at reasonable rates consistent with the type
of occupancy and the services rendered;
(i) the Building's share of operating expenses (as herein defined
in this Section 7.4) related to the maintenance and repair of
the Loading Dock and of other common areas and facilities
within Parcel 4 of the Development Area for use of tenants of
the Building in common with tenants of other buildings in the
Development Area;
(j) depreciation for capital expenditures made by Landlord (x) to
reduce operating expenses if Landlord reasonably shall have
determined that the annual reduction in operating expenses
shall exceed depreciation therefor or (y) to comply with
applicable laws, rules, regulations, requirements, statutes,
ordinances, by-laws and court decisions of all public
authorities which are
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enacted after the Date of this Lease (herein collectively
called "Legal Requirements"), (plus, in the case of both (x)
and (y), an interest factor, reasonably determined by
Landlord, as being the interest rate then charged for long
term mortgages by institutional lenders on like properties
within the general locality in which the Building is located),
and in the case of both (x) and (y) depreciation shall be
determined by dividing the original cost of such capital
expenditure by the number of years of useful life of the
capital item acquired, which useful life shall be determined
reasonably by Landlord in accordance with generally accepted
accounting principles and practices in effect at the time of
acquisition of the capital item; and
(k) all other reasonable and necessary expenses paid in connection
with the operating, cleaning and maintenance of the Building,
the Site and said common areas and facilities and properly
chargeable against income.
Notwithstanding the foregoing, in determining the amount of Operating Expenses
for the Property for any calendar year or portion thereof falling within the
Lease Term, no decrease in Operating Expenses Allocable to the Property shall
result in a reduction in the amount otherwise payable by Tenant if and to the
extent said decrease is attributable to vacancy in the Building rather than to
any other causes.
7.5 TENANT'S ESCALATION PAYMENTS. (A) If with respect to any calendar year
falling within the Lease Term, or fraction of a calendar year falling
within the Lease Term at the beginning or end thereof, the Operating
Expenses Allocable to the Premises (as defined in Section 7.4) for a
full calendar year exceed Base Operating Expenses Allocable to the
Premises (as defined in Section 7.4) or for any such fraction of a
calendar year exceed the corresponding fraction of Base Operating
Expenses Allocable to the Premises (such amount being hereinafter
referred to as the "Operating Cost Excess"), then Tenant shall pay to
Landlord, as Additional Rent, on or before the thirtieth (30th) day
following receipt by Tenant of the statement referred to below in this
Section 7.5, the amount of such excess. Base Operating Expenses (as
defined in Section 7.4) DO NOT include the $ 1.00 for tenant
electricity to be paid by Tenant as part of the Annual Fixed Rent.
However, if and so long as Landlord is NOT allocating the cost of
electricity among tenants of the Building in accordance with Exhibit H,
then the Base Operating Expenses shall be increased by $ 1.00 per
square foot of the Total Rentable Floor Area of the Building.
(B) Payments by Tenant on account of the Operating Cost Excess shall be made
monthly at the time and in the fashion herein provided for the payment of Annual
Fixed Rent. The amount so to be paid to Landlord shall be an amount from time to
time reasonably estimated by Landlord to be sufficient to cover, in the
aggregate, a sum equal to the Operating Cost Excess for each calendar year
during the Lease Term.
(C) No later than ninety (90) days after the end of the first calendar year or
fraction thereof ending December 31 and of each succeeding calendar year during
the Lease Term or fraction thereof at the end of the Lease Term, Landlord shall
render Tenant a statement in reasonable detail and according to usual accounting
practices certified by a representative of Landlord, showing for the preceding
calendar year or fraction thereof, as the case may be, the Operating Expenses
for the
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Property and the Operating Expenses Allocable to the Premises. Said statement to
be rendered to Tenant also shall show for the preceding year or fraction
thereof, as the case may be, the amounts already paid by Tenant on account of
Operating Cost Excess and the amount of Operating Cost Excess remaining due
from, or overpaid by, Tenant for the year or other period covered by the
statement.
If such statement shows a balance remaining due to Landlord, Tenant shall pay
same to Landlord on or before the thirtieth (30th) day following receipt by
Tenant of said statement. Any balance shown as due to Tenant shall be credited
against Annual. Fixed Rent next due, or refunded to Tenant if the Lease Term has
then expired and Tenant has no further obligation to Landlord. Upon notice to
Landlord given within ninety (90) days after Tenant's receipt of such statement,
Tenant, at Tenant's expense, may examine Landlord's books and records regarding
such statement at any reasonable time specified by Landlord during Landlord's
business hours at a place designated by Landlord. Tenant shall hold such books
and records in confidence and not disclose the same to any other party,
including, without limitation, any other tenant in the Building. If such
examination reveals that Landlord's Operating Expenses for a calendar year have
been (a) overstated by Landlord, then an equitable adjustment shall be made in
the amount paid or payable pursuant to this Section 7.5 for such calendar year,
and appropriate credit shall be made against (i) monthly installments of Annual
Fixed Rent next thereafter coming due or (ii) any other sums due from Tenant to
Landlord under this Lease (or refund such amount if the Term has ended and
Tenant has no further obligation to Landlord other than an indemnification
obligation for which no claim has been made) or (b) understated by Landlord,
then an equitable adjustment shall be made in the amount paid or payable
pursuant to this Section 7.5 for such calendar year and an appropriate payment
shall be made by Tenant to Landlord within thirty (30) days after Landlord bills
Tenant therefor.
Any payment by Tenant for the Operating Cost Excess shall not be deemed to waive
any rights of Tenant to claim that the amount thereof was not determined in
accordance with the provisions of this Lease.
7.6 NO DAMAGE. Landlord shall not be liable to Tenant for any compensation
or reduction of rent by reason of inconvenience or annoyance or for
loss of business arising from the necessity of Landlord or its agents
entering the Premises for any purposes in this Lease authorized, or for
repairing the Premises or any portion of the Building however the
necessity may occur. In case Landlord is prevented or delayed from
making any repairs, alterations or improvements, or furnishing any
services or performing any other covenant or duty to be performed on
Landlord's part, by reason of any cause reasonably beyond Landlord's
control, including, without limitation, strike, lockout, breakdown,
accident, order or regulation of or by any Governmental authority, or
failure of supply, or inability by the exercise of reasonable diligence
to obtain supplies, parts or employees necessary to furnish such
services, or because of war or other emergency, or for any cause due to
any act or neglect of Tenant or Tenant' s servants, agents, employees,
licensees or any person claiming by, through or under Tenant, Landlord
shall not be liable to Tenant therefor, nor, except as expressly
otherwise provided in this Lease, shall Tenant be entitled to any
abatement or reduction of rent by reason thereof, nor shall the same
give rise to a claim in Tenant's favor that such failure constitutes
actual or constructive, total or partial, eviction from the Premises.
Subject to the foregoing terms of this Section 7.6,
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Landlord shall use reasonable efforts to remedy as soon as practicable
any delay referenced above.
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; provided, however, that in each instance of stoppage, Landlord
shall exercise reasonable diligence to eliminate the cause thereof. Except in
case of emergency repairs, Landlord will give Tenant reasonable advance notice
of any contemplated stoppage and will use diligent efforts to avoid unnecessary
inconvenience to Tenant by reason thereof.
ARTICLE VIII
TENANT'S REPAIRS
8.1 TENANT'S REPAIRS AND MAINTENANCE. Tenant covenants and agrees that,
from and after the date that possession of the Premises is delivered to
Tenant and until the end of the Lease Term, Tenant will keep neat and
clean and maintain in good order, condition and repair the Premises and
every part thereof, excepting only for those repairs for which Landlord
is responsible under the terms of Article VII of this Lease and damage
by fire or other casualty and as a consequence of the exercise of the
power of eminent domain. Tenant shall not permit or commit any waste,
and Tenant shall be responsible for the cost of repairs which may be
made necessary by reason of damages to common areas in the Building by
Tenant, Tenant's agents, employees, contractors, or invitees.
If repairs are required to be made by Tenant pursuant to the terms hereof,
Landlord may demand in writing (except in the event of an emergency, when no
prior notice is required, provided that Landlord shall give verbal or written
notice to Tenant as soon as practicable after making repairs) that Tenant make
the same forthwith, and if Tenant refuses or neglects to commence such repairs
and complete the same with reasonable dispatch within thirty (30) days after
such demand (except in the event of an emergency, when Landlord may make such
repairs immediately), Landlord may (but shall not be required to do so) make or
cause such repairs to be made and shall not be responsible to Tenant for any
loss or damage that may accrue to Tenant's stock or business by reason thereof
If Landlord makes or causes such repairs to be made, Tenant agrees that Tenant
will forthwith on demand, pay to Landlord as Additional Rent the cost thereof,
and if Tenant shall default in such payment, Landlord shall have the remedies
provided for nonpayment of rent or other charges payable hereunder.
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ARTICLE IX
ALTERATIONS
9.1 LANDLORD'S APPROVAL. Tenant covenants and agrees not to make
alterations, additions or improvements to the Premises, whether before
or during the Lease Term, except in accordance with plans and
specifications therefor first approved by Landlord in writing, which
approval shall not be unreasonably withheld or delayed. Landlord shall
not be deemed unreasonable:
(a) for withholding approval of any alterations, additions or
improvements which (i) in Landlord's opinion might adversely
affect any structural or exterior element of the Building, any
area or element outside of the Premises or any facility
serving any area of the Building outside of the Premises, or
(ii) involve or affect the exterior design, size, height or
other exterior dimensions of the Building, or (iii) enlarge
the Rentable Floor Area of the Premises; or
(b) for making its approval conditional on Tenant's agreement to
restore the Premises to its condition prior to such
alteration, addition, or improvement at the expiration or
earlier termination of the Lease Term.
Landlord's review and approval of any such plans and specifications and consent
to perform work described therein shall not be deemed an agreement by Landlord
that such plans, specifications and work conform with applicable Legal
Requirements and requirements of insurers of the Building (herein called
"Insurance Requirements") nor deemed a waiver of Tenant's obligations under this
Lease with respect to applicable Legal Requirements and Insurance Requirements
nor impose any liability or obligation upon Landlord with respect to the
completeness, design sufficiency or compliance of such plans, specifications and
work with applicable Legal Requirements and Insurance Requirements.
9.2 CONFORMITY OF WORK. Tenant covenants and agrees that any alterations,
additions, improvements or installations made by it to or upon the
Premises shall be done in a good and workmanlike manner and in
compliance with all applicable Legal Requirements and Insurance
Requirements now or hereafter in force, that materials of first and
otherwise good quality shall be employed therein, that the structure of
the Building shall not be endangered or impaired thereby and that the
Premises shall not be diminished in value thereby.
9.3 PERFORMANCE OF WORK, GOVERNMENTAL PERMITS AND INSURANCE. All of
Tenant's alterations and additions and installation of furnishings
shall be coordinated with any work being performed by or for Landlord
and in such manner as to maintain harmonious labor relations and not to
damage the Building or Site or interfere with Building construction or
operation and, except for installation of furnishings, shall be
performed by Landlord's general contractor or by contractors or workmen
first approved by Landlord. Except for work by Landlord's general
contractor, Tenant shall procure all necessary governmental permits
before making any repairs, alterations, other
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improvements or installations. Tenant agrees to save harmless and
indemnify Landlord from any and all injury, loss, claims or damage to
any person or property occasioned by or arising out of the doing of any
such work whether the same be performed prior to or during the Term of
this Lease. In addition, Tenant shall cause each contractor to carry
workmen's compensation insurance in statutory amounts covering the
employees of all contractors and subcontractors, and commercial general
liability insurance or comprehensive general liability insurance with a
broad form comprehensive liability endorsement with such limits as
Landlord may require reasonably from time to time during the Term of
this Lease, but in no event less than the minimum amount of commercial
general liability insurance or comprehensive general liability
insurance Tenant is required to maintain as set forth in Section 1.2
hereof and as the same may be modified as provided in Section 13.2
hereof (all such insurance to be written in companies approved
reasonably by Landlord and insuring Landlord, Landlord's managing agent
and Tenant as well as contractors) and to deliver to Landlord
certificates of all such insurance.
9.4 LIENS. Tenant covenants and agrees to pay promptly when due the entire
cost of any work done on the Premises by Tenant, its agents, employees
or contractors, and not to cause or permit any liens for labor or
materials performed or furnished in connection therewith to attach to
the Premises or the Building or the Site and immediately to discharge
any such liens which may so attach.
9.5 NATURE OF ALTERATIONS. All work, construction, repairs, alterations,
other improvements or installations made to or upon the Premises
(including, but not limited to, the construction performed by Landlord
under Article IV), shall become part of the Premises and shall become
the property of Landlord and remain upon and be surrendered with the
Premises as a part thereof upon the expiration or earlier termination
of the Lease Term, except as follows:
(a) All trade fixtures whether by law deemed to be a part of the
realty or not, installed at any time or times by Tenant or any
person claiming under Tenant shall remain the property of
Tenant or persons claiming under Tenant and may be removed by
Tenant or any person claiming under Tenant at any time or
times during the Lease Term or any occupancy by Tenant
thereafter and shall be removed by Tenant at the expiration or
earlier termination of the Lease Term if so requested by
Landlord. Tenant shall repair any damage to the Premises
occasioned by the removal by Tenant or any person claiming
under Tenant of any such property from the Premises.
(b) At the expiration or earlier termination of the Lease Term,
unless otherwise agreed in writing by Landlord, Tenant shall
remove any wiring for Tenant's computer, telephone and other
communication systems and equipment and any alterations,
additions and improvements made with Landlord's consent during
the Lease Term for which such removal was made a condition of
such consent under Section 9.1 (b). Upon such removal Tenant
shall restore the Premises to their condition prior to such
alterations, additions and improvements and repair any damage
occasioned by such removal and restoration.
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(c) If Tenant shall make any alterations, additions or
improvements to the Premises for which Landlord's approval is
required under Section 9.1 without obtaining such approval,
then at Landlord's request at any time during the Lease Term,
and at any event at the expiration or earlier termination of
the Lease Term, Tenant shall remove such alterations,
additions and improvements and restore the Premises to their
condition prior to same and repair any damage occasioned by
such removal and restoration. Nothing herein shall be deemed
to be a consent to Tenant to make any such alterations,
additions or improvements, the provisions of Section 9.1 being
applicable to any such work.
9.6 INCREASES IN TAXES. Tenant shall pay, as additional rent, one hundred
percent (100%) of any increase in real estate taxes on the Property
which shall, at any time after the Commencement Date, result from
alterations, additions or improvements to the Premises made by Tenant
if the taxing authority specifically determines such increase results
from such alterations, additions or improvements made by Tenant.
ARTICLE X
PARKING
10.1 PARKING PRIVILEGES. Reference is made to the fact that affiliates of
Landlord have constructed two (2) parking garages and propose to
construct one or more additional parking garages (hereinafter the
"Garage" or the "Garages") within the Development Area shown on Exhibit
F to serve the Building and other buildings constructed or to be
constructed by Landlord or affiliates of Landlord within the
Development Area. The existing Garage, with vehicular entrances from
the south side of Broadway and the east side of Xxxx Street, is also
sometimes hereinafter referred to as the "East Garage". The existing
Garage, located on Parcel 2 of the Development Area with vehicular
entrances from the north side of Broadway and the south side of Binney
Street is also sometimes hereinafter referred to as the "North Garage".
Landlord shall provide to Tenant monthly parking privileges in one or
more of the Garages in number not to exceed parking for two (2)
passenger automobiles for each 1,000 square feet of Rentable Floor Area
of the Premises for the parking of motor vehicles in unreserved stalls
in one or more of the Garages by Tenant's employees commencing on the
Commencement Date of the Lease Term. Such parking privileges may be
shifted from time to time among the Garages by notice from Landlord;
provided however that parking shall be provided in the East Garage for
no less than one-half (Y2) of the total number of automobiles for which
Tenant elects to have parking privileges pursuant to this Section 10.
1. Within thirty (3 0) days after the date of execution of this Lease,
Tenant shall notify Landlord of the number of parking spaces which
Tenant desires be made available in the Garage(s) for its use in
accordance with this Section.
10.2 PARKING CHARGES. Tenant shall pay for parking privileges in Garages at
prevailing monthly rates from time to time charged by the operator or
operators of Garages, whether or not such operator is an affiliate of
Landlord. Such monthly parking charges for parking privileges in the
Garage or Garages shall constitute Additional Rent and shall be payable
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monthly as directed by Landlord upon billing therefor by Landlord.
Tenant acknowledges that said monthly charges to be paid under this
Section are for the use by the Tenant of the parking privileges
referred to herein, and not for any other service.
10.3 GARAGE OPERATION. Unless otherwise determined by Landlord, each Garage
is to be operated on a self-parking basis, and Tenant shall be
obligated to park and remove its own automobiles. Tenant's parking
shall be on an unreserved basis, Tenant having the right to park in any
available stalls. Tenant's access and use privileges with respect to
the Garage shall be in accordance with regulations of uniform
applicability to the users of the Garage from time to time established
by the operator of the Garage. Tenant shall receive one (1)
identification sticker or pass and one (1) magnetic card so-called, or
other suitable device providing access to the Garage, for each vehicle
paid for by Tenant. Tenant shall supply Landlord with an identification
roster listing, for each identification sticker or pass, the name of
the employee and the make, color and registration number of the vehicle
to which it has been assigned, and shall provide a revised roster to
Landlord monthly indicating changes thereto. Any automobile found
parked in the Garage during normal business hours without appropriate
identification will be subject to being towed at said automobile
owner's expense. The parking privileges granted herein are
nontransferable. The door of the Garage will be open during normal
business hours except during periods of severe inclement or cold
weather. For periods during which an attendant is not on duty at the
Garage entrance or when the door to the Garage is closed, or at any
other periods as may from time to time be stipulated by the Garage
Operator in accordance with its regulations, including normal business
hours, the magnetic cards furnished to Tenant shall be used by Tenant
to gain access to and egress from the Garage for motor vehicles.
10.4 LIMITATIONS. Tenant agrees that it and all persons claiming by, through
and under it, shall at all times abide by all reasonable rules and
regulations promulgated by Landlord or the operator of the parking
facilities with respect to the use of the Garage or such ongrade
parking facilities as may be provided by Landlord within the
Development Area. Except to the extent of gross negligence or willful
acts, neither the Landlord nor the operator of such parking facilities
assumes any responsibility whatsoever for loss or damage due to fire or
theft or otherwise to any automobile or to any personal property
therein, however caused, and Tenant agrees, upon request from the
Landlord, from time to time, to notify its officers, employees and
agents then using any of the parking privileges provided for herein, of
such limitation of liability. Tenant further acknowledges and agrees
that a license only is hereby granted, and no bailment is intended or
shall be created.
10.5 INTERIM ON-GRADE PARKING. Notwithstanding the references to Garages in
this Article X, Tenant acknowledges that, from time to time, Landlord
may satisfy the requirements of providing Tenant with parking hereunder
(except for parking called for as to be provided in the East Garage) by
providing such parking in on-grade parking lots within the Development
Area, in which case such parking shall be paid for in accordance with
the prevailing monthly rate from time to time charged by the operator
or operators of such lots, whether or not such operator is an affiliate
of Landlord, and in all other respects in accordance with the terms and
conditions of this Article X.
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ARTICLE XI
CERTAIN TENANT COVENANTS
Tenant covenants during the Lease Term and for such further time as Tenant
occupies any part of the Premises:
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11.1 To pay when due all Annual Fixed Rent and Additional Rent and all
charges for utility services rendered to the Premises and service
inspections therefor (except as is otherwise provided in Exhibit D)
and, as further Additional Rent, all charges for additional and special
services rendered pursuant to Section 7.3.
11.2 To use and occupy the Premises for the Permitted Uses only, and not to
injure or deface the Premises or the Property, not to permit in the
Premises any auction sale, vending machine or flammable fluids or
chemicals, or nuisance, or the emission from the Premises of any
objectionable noise or odor, nor to use or devote the Premises or any
part thereof for any purpose other than the Permitted Uses, nor any use
thereof which is inconsistent with the maintenance of the Building as
an office building of the first-class in the quality of its
maintenance, use and occupancy, or which is improper, offensive,
contrary to law or ordinance or liable to invalidate or increase the
premiums for any insurance on the Building or its contents or liable to
render necessary any alteration or addition to the Building. Further,
(i) Tenant shall not, nor shall Tenant permit its employees, invitees,
agents, independent contractors, contractors, assignees or subtenants
to, keep, maintain, store or dispose of (into the sewage or waste
disposal system or otherwise) or engage in any activity which might
produce or generate any substance which is or may hereafter be
classified as a hazardous material, waste or substance (collectively
"Hazardous Materials"), under federal, state or local laws, rules and
regulations, including, without limitation, 42 U.S.C. Section 6901 et
seq., 42 U.S.C. Section 9601 et seq., 42 U.S.C. Section 2601 et seq.,
49 U.S.C. Section 1802 et seq. and Massachusetts General Laws, Chapter
2 1 E and the rules and regulations promulgated under any of the
foregoing, as such laws, rules and regulations may be amended from time
to time (collectively "Hazardous Materials Laws"), (ii) Tenant shall
immediately notify Landlord of any incident in, on or about the
Premises, the Building or the Site that would require the filing of a
notice under any Hazardous Materials Laws, (iii) Tenant shall comply
and shall cause its employees, invitees, agents, independent
contractors, contractors, assignees and subtenants to comply with each
of the foregoing and (iv) Landlord shall have the right to make such
inspections (including testing) as Landlord shall elect from time to
time to determine that Tenant is complying with the foregoing.
11.3 Not to obstruct in any manner any portion of the Building not hereby
leased or any portion thereof or of the Site used by Tenant in common
with others; not without prior consent of Landlord to permit the
painting or placing of any signs, curtains, blinds, shades, awnings,
aerials or flagpoles, or the like, visible from outside the Premises;
and to comply with all reasonable rules and regulations now or
hereafter made by Landlord, of which Tenant has been given notice, for
the care and use of the Building and the Site and their facilities and
approaches, but Landlord shall not be liable to Tenant for the failure
of other occupants of the Building to conform to such rules and
regulations.
11.4 To keep the Premises equipped with all safety appliances required by
law or ordinance or any other regulation of any public authority
because of any use made by Tenant other than normal office use, and to
procure all licenses and permits so required because of any use made by
Tenant other than normal office use, and to procure all licenses and
permits so required because of such use and, if requested by Landlord,
to do any work so required
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because of such use, it being understood that the foregoing provisions
shall not be construed to broaden in any way Tenant's Permitted Uses.
11.5 Not to place a load upon any floor in the Premises exceeding an average
rate of 70 pounds of live load (including partitions) per square foot
of floor area; and not to move any safe, vault or other heavy equipment
in, about or out of the Premises except in such manner and at such time
as Landlord shall in each instance authorize. Tenant's business
machines and mechanical equipment shall be placed and maintained by
Tenant at Tenant's expense in settings sufficient to absorb and prevent
vibration or noise that may be transmitted to the Building structure or
to any other space in the Building.
11.6 To pay promptly when due all taxes which may be imposed upon personal
property (including, without limitation, fixtures and equipment) in the
Premises to whomever assessed.
11.7 To pay, as Additional Rent, all reasonable costs, counsel and other
fees incurred by Landlord in connection with the successful enforcement
by Landlord of any, obligations of Tenant under this Lease.
11.8 Not to do or permit anything to be done in or upon the Premises, or
bring in anything or keep anything therein, which shall increase the
rate of insurance on the Premises or on the Building above the standard
rate applicable to premises being occupied for the use to which Tenant
has agreed to devote the Premises; and Tenant further agrees that, in
the event that Tenant shall do any of the foregoing, Tenant will
promptly pay to Landlord, on demand, any such increase resulting
therefrom, which shall be due and payable as Additional Rent hereunder.
11.9 To comply with all applicable Legal Requirements now or hereafter in
force which shall impose a duty on Landlord or Tenant relating to or as
a result of the use or occupancy of the Premises; provided that Tenant
shall not be required to make any alterations or additions to the
structure, roof, exterior and load bearing walls, foundation,
structural floor slabs and other structural elements of the Building
unless the same are required by such Legal Requirements as a result of
or in connection with Tenant's use or occupancy of the Premises beyond
normal use of space of this kind, Tenant shall promptly pay all fines,
penalties and damages that may arise out of or be imposed because of
its failure to comply with the provisions of this Section 11.9.
ARTICLE XII
ASSIGNMENT AND SUBLETTING
12.1 PROHIBITION. Tenant covenants and agrees that it shall not assign,
mortgage, pledge, hypothecate or otherwise transfer this Lease and/or
Tenant's interest in this Lease or sublet (which term, without
limitation, shall include granting of concessions, licenses or the
like) the whole or any part of the Premises, or to permit occupancy of
the Premises or any part thereof by anyone other than the Tenant. Any
assignment, mortgage, pledge, occupancy arrangement, hypothecation,
transfer or subletting shall be void, ab initio; shall be of no force
and effect; and shall confer no rights on or in favor of third parties;
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and, at Landlord's sole option, shall constitute a default of Tenant
entitling Landlord to exercise its remedies in the event of default
hereunder by Tenant. In addition, Landlord shall be entitled to seek
specific performance by Tenant and or the equitable relief with respect
to the provisions of this Article XII.
12.2 EXCEPTIONS FOR PARENT OR SUBSIDIAR. Notwithstanding the foregoing
provisions of Section 12.1 above, but subject to the provisions of
Sections 12.3 and 12.4 below, Tenant shall have the right to assign
this Lease or to sublet the Premises (in whole or in part) to (i) any
entity that controls, is controlled by or is under common control with
Tenant or (ii) any corporation into which Tenant may be converted or
with which it may merge, provided that the entity to which this Lease
is so assigned or which so sublets the Premises has a credit worthiness
(e.g. assets on a pro forma basis using generally accepted accounting
principles consistently applied and using the most recent financial
statements) which is the same or better than the Tenant as of the Date
of this Lease.
12.3 TENANT'S NOTICE. Tenant shall give Landlord notice of any proposed
sublease or assignment, and said notice shall specify the provisions of
the proposed assignment or subletting, including (a) the name and
address of the proposed assignee or subtenant, (b) all of the terms and
provisions upon which the proposed assignment or subletting is to be
made, and (c) such information as may be reasonably required by
Landlord to determine that such proposed assignment or subletting
complies with the requirements of said Section 12.2.
12.4 ADDITIONAL CONDITIONS. (A) It shall be a condition of the validity of
any assignment or subletting of right under Section 12.2 above that
both Tenant and the assignee or sublessee agree directly with Landlord
in a separate written instrument reasonably satisfactory to Landlord
which contains terms and provisions reasonably required by Landlord,
including, without limitation, the agreement of the assignee or
sublessee to be bound by all the obligations of the Tenant hereunder,
including, without limitation, the obligation to pay the Annual Fixed
Rent, Additional Rent, and other amounts provided for under this Lease
(but in the case of a partial subletting, such subtenant shall agree on
a pro rata basis to be so bound), including the provisions of Section
12.1 through 12.4 hereof, but such assignment or subletting shall not
relieve the Tenant named herein of any of the obligations of the Tenant
hereunder, Tenant shall remain fully and primarily liable therefor and
the liability of Tenant and such assignee (or subtenant, as the case
may be) shall be joint and several. Further, and notwithstanding the
foregoing, the provisions hereof shall not constitute a recognition of
the assignment or the assignee thereunder or the sublease or the
subtenant thereunder, as the case may be, and at Landlord's option,
upon the termination of the Lease, the assignment or sublease shall be
terminated.
(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 upon prior notice to
Tenant, at any time and from time to time, collect Annual Fixed Rent, Additional
Rent, and other chargesfrom the assignee, sublessee or occupant and apply the
net amount collected to the Annual Fixed Rent, Additional Rent and other charges
herein reserved, but no such assignment, subletting, occupancy or collection
shall be deemed a waiver of this covenant, or a waiver of the provisions of
Sections 12.1 through 12.4 hereof, or the
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acceptance of the assignee, sublessee or occupant as a tenant or a release of
Tenant from the further performance by Tenant of covenants on the part of Tenant
herein contained, the Tenant herein named to remain primarily liable under this
Lease.
(C) As Additional Rent, Tenant shall reimburse Landlord promptly for out of
pocket legal and other expenses incurred by Landlord in connection with any
assignment or subletting.
ARTICLE XIII
INDEMNITY AND COMMERCIAL GENERAL LIABILITY INSURANCE
13.1 TENANT'S INDEMNITY. To the maximum extent this agreement may be made
effective according to law, Tenant agrees to indemnify and save
harmless Landlord from. and against all claims of whatever nature
arising from or claimed to have arisen from: any act, omission or
negligence of Tenant, or Tenant's contractors, licensees, invitees,
agents, servants, independent contractors or employees; any accident,
injury or damage whatsoever caused to any person, or to the property of
any person, occurring in or about the Premises after the date that
possession of the Premises is first delivered to Tenant and until the
end of the Lease Term and thereafter, provided that during any such
period after the Lease Term Tenant or anyone acting by, through or
under Tenant is in occupancy of the Premises or any portion thereof, or
any accident, injury or damage occurring outside the Premises but
within the Building, the Garage or on the Site, where such accident,
injury or damage results, or is claimed to have resulted, from an act,
omission or negligence on the part of Tenant or Tenant's contractors,
licensees, invitees, agents, servants, independent contractors or
employees.
This indemnity and hold harmless agreement shall include indemnity against all
costs, expenses and liabilities incurred in or in connection with any such claim
or proceeding brought thereon, and the defense thereof.
13.2 COMMERCIAL GENERAL LIABILITY INSURANCE. Tenant agrees to maintain in
full force from the date upon which Tenant first enters the Premises
for any reason, throughout the Lease Term of this Lease, and
thereafter, so long as Tenant is in occupancy of any part of the
Premises, a policy of commercial general liability or comprehensive
general liability insurance written on an occurrence basis with a broad
form comprehensive liability endorsement under which Landlord and
Landlord's managing agent (and such other persons as are in privity of
estate with Landlord and Landlord's managing agent as may be set out in
notice from time to time) and Tenant are named as insureds, and under
which the insurer agrees to indemnify and hold Landlord and Landlord's
managing agent, and those in privity of estate with Landlord and
Landlord's managing agent, harmless from and against all cost, expense
and/or liability arising out of or based upon any and all claims,
accidents, injuries and damages mentioned in Section 13.1 of this
Article XIII, in the broadest form of such, coverage from time to time
available in the jurisdiction in which the Premises are located. Each
such policy shall be non-cancelable and non-amendable with respect to
Landlord and Landlord's said designees without thirty (30) days' prior
notice to Landlord, and a duplicate original or certificate thereof
shall be delivered to Landlord. As of the
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Commencement Date hereof, the minimum limits of liability of such
insurance shall be as specified in Section 1.2 and from time to time
during the Lease Term for such higher limits, if any, as are carried
customarily in the Greater Boston Area with respect to similar
properties. All insurance required to be maintained by Tenant pursuant
to this Lease shall be maintained with responsible companies qualified
to do business, and in good standing, in the Commonwealth of
Massachusetts and which have a rating of at least "A2' and are within a
financial size category of not less than "Class VIII" in the most
current Best's Key Rating Guide or such similar rating as may be
reasonably selected by Landlord if such Guide is no longer published.
13.3 TENANT'S PROPERTY INSURANCE. Tenant, at Tenant's expense, shall
maintain at all times during the Term of the Lease insurance against
loss or damage covered by the so-called "all risk" type insurance
coverage with respect to Tenant's fixtures, equipment, goods, wares and
merchandise, tenant improvements made by or paid for by Tenant, and
other property of Tenant (collectively "Tenants Property"). Such
insurance shall be in an amount at least equal to the full replacement
cost of Tenant's Property.
13.4 NON-SUBROGATION. Any insurance carried by either party with respect to
the Premises or property therein or occurrences thereon shall, if it
can be so written without additional premium or with an additional
premium which the other party agrees to pay, include a clause or
endorsement denying to the insurer rights of subrogation against the
other party to the extent rights have been waived by the insured prior
to occurrence of injury or loss. Each party, notwithstanding any
provisions of this Lease to the contrary, hereby waives any rights of
recovery against the other for injury or loss due to hazards covered by
such insurance to the extent of the indemnification received
thereunder.
13.5 TENANTS RISK. To the maximum extent that this agreement may be made
effective according to law, Tenant agrees to use and occupy the
Premises and to use such other portions of the Building, the Garage or
Garages, the Site and the Development Area as Tenant is herein given
the right to use at Tenant's own risk; and Undlord shall have no
responsibility or liability for any loss of or damage to fixtures or
other personal property of Tenant.
ARTICLE XIV
FIRE, CASUALTY AND TAKING
14.1 DAMAGE RESULTING FROM CASUALTY. In case during the Lease Term the
Building or the Site are damaged by fire or other casualty, and such
fire or casualty damage cannot, in the ordinary course, reasonably be
expected to be repaired within one hundred twenty (120) days from the
time that repair work would commence, Landlord may, at its election,
terminate this Lease by notice given to Tenant within sixty (60) days
after the date of such fire or other casualty, specifying the effective
date of termination. The effective date of termination specified by
Landlord shall not be less than thirty (30) days nor more than
forty-five (45) days after the date of notice of such termination.
Unless terminated pursuant to the foregoing provisions, this Lease
shall remain in full force and effect following any such damage
subject, however, to the following provisions.
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If during the last fifteen (15) months of the Lease Term, the Building shall be
damaged by fire or casualty and such fire or casualty damage to the Premises
cannot reasonably be expected to be repaired or restored within one hundred
twenty (120) days from the time that repair or restoration work would commence,
then Tenant shall have the right, by giving notice to Landlord not later than
thirty (30) days after such damage, to terminate this Lease, whereupon this
Lease shall terminate as of 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
If the Building or the Site or any part thereof are damaged by fire or other
casualty and this Lease is not so terminated, or Landlord has no right to
terminate this Lease, and in either such case the holder of any mortgage which
includes the Building as a part of the mortgaged premises or any ground lessor
of any ground lease which includes the Site as part of the demised premises
allows the net insurance proceeds to be applied to the restoration of the
Building (and/or the Site), Landlord, promptly after such damage and the
determination of the net amount of insurance proceeds available shall use due
diligence to restore the Premises and the Building in the event of damage
thereto (excluding Tenant's Property ) into proper condition for use and
occupation and a just proportion of the Annual Fixed Rent, the Operating Cost
Excess and Tenant's share of real estate taxes according to the nature and
extent of the injury to the Premises shall be abated from the date of casualty
until the Premises shall have been put by Landlord substantially into such
condition. Notwithstanding the foregoing, Landlord shall not be obligated to
expend for such repairs and restoration any amount in excess of the net
insurance proceeds.
Where Landlord is obligated or otherwise elects to effect restoration of the
Premises, unless such restoration is completed within one (1) year from the date
of the casualty or taking, such period to be subject, however, to extension
where the delay in completion of such work is due to causes beyond Landlord's
reasonable control (but in no event beyond eighteen (18) months from the date of
the casualty or taking), Tenant shall have the right to terminate this Lease at
any time after the expiration of such one-year (as extended) period until the
restoration is substantially completed, such termination to take effect as of
the thirtieth (30th) day after the date of receipt by Landlord of Tenant's
notice, with the same force and effect as if such date were the date originally
established as the expiration date hereof unless, within such thirty (30) day
period such restoration is substantially completed, in which case Tenant's
notice of termination shall be of no force and effect and this Lease and the
Lease Term shall continue in full force and effect.
14.2 UNINSURED CASUALTY. Notwithstanding anything to the contrary contained
in this Lease, if the Building or the Premises shall be substantially
damaged by fire or casualty as the result of a risk not covered by the
forms of casualty insurance at the time maintained by Landlord and such
fire or casualty damage cannot, in the ordinary course, reasonably be
expected to be repaired within ninety (90) days from the time that
repair work would commence, Landlord may, at its election, terminate
the Term of this Lease by notice to Tenant given within thirty (30)
days after such loss. If Landlord shall give such notice, then this
Lease shall terminate as of 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.
14.3 RIGHTS OF TERMINATION FOR TAKING. Except as hereinafter provided in
Section 14.4 hereof, if the Building, or such portion thereof as to
render the balance (if reconstructed to the maximum extent practicable
in the circumstances) unsuitable for
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Tenant's purposes, shall be taken by condemnation or right of eminent
domain, Landlord or Tenant shall have the right to terminate this Lease
by notice to the other of its desire to do so, provided that such
notice is given not later than thirty (30) days after Tenant has been
deprived of possession. If either party shall give such notice, then
this Lease shall terminate as of 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.
Further, if so much of the Building shall be so taken that continued operation
of the Building would be uneconomic, Landlord shall have the right to terminate
this Lease by giving notice to Tenant of Landlord's desire to do so not later
than thirty (30) days after Tenant has been deprived of possession of the
Premises (or such portion thereof as may be taken). If Landlord shall give such
notice, then this Lease shall terminate as of 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.
Should any part of the Premises be so taken or condemned during the Lease Term
hereof, and should this Lease not be terminated in accordance with the foregoing
provisions, and the holder of any mortgage which includes the Premises as part
of the mortgaged premises or any ground lessor of any ground lease which
includes the Site as part of the demised premises allows the net condemnation
proceeds to be applied to the restoration of the Building, Landlord agrees that
after the determination of the net amount of condemnation proceeds available to
Landlord, Landlord shall * use due diligence to put what may remain of the
Premises into proper condition for use and occupation as nearly like the
condition of the Premises prior to such taking as shall be practicable
(excluding Tenant's Property). Notwithstanding the foregoing, Landlord shall not
be obligated to expend for such repair and restoration any amount in excess of
the net condemnation proceeds.
If the Premises shall be affected by any exercise of the power of eminent domain
and neither Landlord nor Tenant shall terminate this Lease as provided above,
then the Annual Fixed Rent, the Operating Cost Excess and Tenant's share of real
estate taxes shall be justly and equitably abated and reduced according to the
nature and extent of the loss of use thereof suffered by Tenant; and in case of
a taking which permanently reduces the Rentable Floor Area of the Premises, a
just proportion of the Annual Fixed Rent, the Operating Cost Excess and Tenant's
share of real estate taxes shall be abated for the remainder of the Lease Term.
14.4 AWARD. Except as otherwise provided in Section 14.4, Landlord shall
have and hereby reserves and excepts, and Tenant hereby grants and
assigns to Landlord, all rights to recover for damages to the Building,
the Site and the Garage or Garages and the leasehold interest hereby
created, and compensation accrued or hereafter to accrue by reason of
such taking, damage or destruction, as aforesaid, 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.
However, nothing contained herein shall be construed to prevent Tenant from
prosecuting in any such proceedings a claim for its trade fixtures so taken or
relocation, moving and other dislocation expenses, provided that such action
shall not affect the amount of compensation otherwise recoverable by Landlord
from the taking authority.
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ARTICLE XV
DEFAULT
15.1 TENANT'S DEFAULT. This Lease and the term of this Lease are subject to
the limitation that Tenant shall be in default if, at any time during
the Lease Term, any one or more of the following events (herein called
an "Event of Default" a "default of Tenant" or similar reference) shall
occur and not be cured prior to the expiration of the grace period (if
any) herein provided, as follows:
(a) Tenant shall fail to pay any installment of the Annual Fixed
Rent, or any Additional Rent or any other monetary amount due
under this Lease on or before the date on which the same
becomes due and payable, and such failure continues for five
(5) days after notice from Landlord thereof, or
(b) Landlord having rightfully given the notice specified in (a)
above to Tenant twice in any twelve (12) month period, Tenant
shall fail thereafter to pay the Annual Fixed Rent, Additional
Rent or any other monetary amount due under this Lease on or
before the date on which the same becomes due and payable; or
(c) Tenant shall fail to perform or observe some term or condition
of this Lease which, because of its character, would
immediately jeopardize Landlord's interest (such as, but
without limitation, failure to maintain general liability
insurance, or the employment of labor and contractors within
the Premises which interfere with Landlord's work, in
violation of Section 4.3 or Section 9.3), and such failure
continues for three (3) days after notice from Landlord to
Tenant thereof; or
(d) Tenant shall fail to perform or observe any other requirement,
term, covenant or condition of this Lease (not hereinabove in
this Section 15.1 specifically referred to) on the part of
Tenant to be performed or observed and such failure shall
continue for thirty (30) days after notice thereof from
Landlord to Tenant, or if said default shall reasonably
require longer than thirty (30) days to cure, if Tenant shall
fail to commence to cure said default within thirty (30) days
after notice thereof and/or fail to continuously prosecute the
curing of the same to completion with due diligence; or
(e) The estate hereby created shall be taken on execution or by
other process of law; or
(f) Tenant shall make an assignment or trust mortgage arrangement,
so-called, for the benefit of its creditors; or
(g) Tenant shall judicially be declared bankrupt or insolvent
according to law; or
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(h) a receiver, guardian, conservator, trustee in involuntary
bankruptcy or other similar officer is appointed to take
charge of all or any substantial part of Tenant's property by
a court of competent jurisdiction; or
(i) any petition shall be filed against Tenant in any court,
whether or not pursuant to any statute of the United States or
of any State, in any bankruptcy, reorganization, composition,
extension, arrangement or insolvency proceeding, and such
proceedings shall not be fully and finally dismissed within
sixty (60) days after the institution of the same; or
(j) Tenant shall file any petition in any court, whether or not
pursuant to any statute of the United States or any State, in
any bankruptcy, reorganization, composition, extension,
arrangement or insolvency proceeding.
15.2 TERMINATION; RE-ENTRY. Upon the happening of any one or more of the
aforementioned Events of Default (notwithstanding any license of a
former breach of covenant or waiver of the benefit hereof or consent in
a former instance), Landlord or Landlord's agents or servants may give
to Tenant a notice (hereinafter called "notice of termination")
terminating this Lease on a date specified in such notice of
termination (which shall be not less than five (5) days after the date
of the mailing of such notice of termination), and this Lease and the
Lease Term, as well as any and all of the right, title and interest of
the Tenant hereunder, shall wholly cease and expire on the date set
forth in such notice of termination (Tenant hereby waiving any rights
of redemption) in the same manner and with the same force and effect as
if such date were the date originally specified herein for the
expiration of the Lease Term, and Tenant shall then quit and surrender
the Premises to Landlord.
In addition or as an alternative to the giving of such notice of termination,
Landlord or Landlord's agents or servants may, by any suitable action or
proceeding at law, immediately or at any time thereafter re-enter the Premises
and remove therefrom Tenant, its agents, employees, servants, licensees, and any
subtenants and other persons, and all or any of its or their property therefrom,
and repossess and enjoy the Premises, together with all additions, alterations
and improvements thereto; but, in any event under this Section 15.2, Tenant
shall remain liable as hereinafter provided.
The words "re-enter" and "re-entry" as used throughout this Article XV are not
restricted to their technical legal meanings.
15.3 CONTINUED LIABILITY. RE-LETTING. If this Lease is terminated or if
Landlord shall re-enter the Premises as aforesaid, or in the event of
the termination of this Lease, or of re- entry, by or under any
proceeding or action or any provision of law by reason of an Event of
Default hereunder on the part of Tenant, Tenant covenants and agrees
forthwith to pay and be liable for, on the days originally fixed herein
for the payment thereof, amounts equal to the several installments of
Annual Fixed Rent, all Additional Rent and other charges reserved as
they would, under the terms of this Lease, become due if this Lease had
not been terminated or if Landlord had not entered or re-entered, as
aforesaid,
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and whether the Premises be relet or remain vacant, in whole or in
part, or for a period less than the remainder of the Lease Term, or for
the whole thereof, but, in the event the Premises be relet by Landlord,
Tenant shall be entitled to a credit in the net amount of rent and
other charges received by Landlord in reletting, after deduction of all
reasonable expenses incur-red in reletting the Premises (including,
without limitation, remodeling costs, brokerage fees and the like), and
in collecting the rent in connection therewith, in the following
manner:
Amounts received by Landlord after reletting shall first be applied against such
Landlord's expenses, until the same are recovered, and until such recovery,
Tenant shall pay, as of each day when a payment would fall due under this Lease,
the amount which Tenant is obligated to pay under the terms of this Lease
(Tenant's liability prior to any such reletting and such recovery not in any way
to be diminished as a result of the fact that such reletting might be for a rent
higher than the rent provided for in this Lease); when and if such expenses have
been completely recovered, the amounts received from reletting by Landlord as
have not previously been applied shall be credited against Tenant's obligations
as of each day when a payment would fall due under this Lease, and only the net
amount thereof shall be payable by Tenant. Further, Tenant shall not be entitled
to any credit of any kind for any period after the date when the term of this
Lease is scheduled to expire according to its terms.
15.4 LIQUIDATED DAMAGES. Landlord may elect, as an alternative, to have
Tenant pay liquidated damages, which election may be made by notice
given to Tenant at any time after the termination of this Lease under
Section 15.2, above, and whether or not Landlord shall have collected
any damages as hereinbefore provided in this Article XV, and in lieu of
all other such damages beyond the date of such notice. Upon such
notice, Tenant shall promptly pay to Landlord, as liquidated damages,
in addition to any damages collected or due from Tenant from any period
prior to such notice, such a sum as at the time of such notice
represents the amount of the excess, if any, of (a) the discounted
present value, at a discount rate of 6%, of the Annual Fixed Rent,
Additional Rent and other charges which would have been payable by
Tenant under this Lease for the remainder of the Lease Term if the
Lease terms had been fully complied with by Tenant, over and above (b)
the discounted present value, at a discount rate of 6%, of the Annual
Fixed Rent, Additional Rent and other charges that would be received by
Landlord if the Premises were re- leased at the time of such notice for
the remainder of the Lease Term at the fair market value (including
provisions regarding periodic increases in Annual Fixed Rent if such
are applicable) prevailing at the time of such notice.
For the purposes of this Article, if Landlord elects to require Tenant to pay
liquidated damages in accordance with this Section 15.4, the total rent shall be
computed by assuming the Tenant's share of real estate taxes under Section 6.1
and the Operating Cost Excess under Section 7.4 to be the same as were payable
for the twelve (12) calendar months (or if less than twelve (12) calendar months
have been elapsed since the date hereof, the partial year) immediately preceding
such termination of re-entry.
Nothing contained in this Lease shall limit or prejudice the right of Landlord
to prove for and obtain in proceedings for bankruptcy or insolvency by reason of
the termination of this Lease, an amount
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equal to the maximum allowed by any statute or rule of law in effect at the time
when, and governing the proceeds in which, the damages are to be proved, whether
or not the amount be greater, equal to, or less than the amount of the loss or
damages referred to above.
15.5 WAIVER OF REDEMPTION. Tenant, for itself and any and all persons
claiming through or under Tenant, including its creditors, upon the
termination of this Lease and of the term of this Lease in accordance
with the terms hereof, or in the event of entry of judgment for the
recovery of the possession of the Premises in any action or proceeding,
or if Landlord shall enter the Premises by process of law or otherwise,
hereby waives any right of redemption provided or permitted by any
statute, law or decision now or hereafter in force, and does hereby
waive, surrender and give up all rights or privileges which it or they
may or might have under and by reason of any present or future law or
decision, to redeem the Premises or for a continuation of this Lease
for the term of this Lease hereby demised after having been
dispossessed or ejected therefrom by process of law, or otherwise.
15.6 LANDLORDS DEFAULT. Landlord shall in no event be in default in the
performance of any of Landlord's obligations hereunder unless and until
Landlord shall have failed to perform such obligations within thirty
(30) days, or such additional time as is reasonably required to correct
any such default, after notice by Tenant to Landlord properly
specifying wherein Landlord has failed to perform any such obligation.
ARTICLE XVI
BANKRUPTCY OR INSOLVENCY
16.1 CHAPTER 7 PROCEEDINGS. If the Tenant shall become a debtor under
Chapter 7 of the Bankruptcy Code and Tenant's trustee or Tenant shall
elect to assume this Lease for the purpose of assigning the same or
otherwise, such election and assignment may be made only if all of the
provisions of Sections 16.2 and 16.4 of this Article XVI are satisfied.
If Tenant or Tenant's trustee shall fail to elect to assume this Lease
within sixty (60) days after the filing of a petition, or such
additional time as provided by the court within such 60- day period,
this Lease shall be deemed to have been rejected. Immediately
thereupon, Landlord shall be entitled to possession of the Premises
without further obligation to Tenant or Tenant's trustee and this Lease
shall terminate, but Landlord's right to be compensated for damages
(including, without limitation, damages pursuant to Article XV), in any
such proceeding shall survive.
16.2 CHAPTER 11 PROCEEDINGS. If a petition for reorganization or adjustment
of debts is filed concerning Tenant under Chapter I I of the Bankruptcy
Code, or a proceeding is filed under Chapter 7 of the Bankruptcy Code
and is transferred to Chapter 11, Tenant's trustee or Tenant, as
debtor-in- possession, must elect to assume this Lease within the
earlier of (i) confirmation of the plan and (ii) one hundred twenty
(120) days from the date of the filing of the petition under Chapter 11
or such transfer thereto or Tenant's trustee or Tenant, as
debtor-in-possession, shall be deemed to have rejected this Lease. If
Tenant's trustee or Tenant, as debtor-in-possession, has failed to
perform all of Tenant's obligations under this Lease within the time
periods (excluding grace periods) required
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for such performance, no election by Tenant's trustee or by Tenant, as
debtor-in-possession, to assume this Lease, whether under Chapter 7 or
Chapter 11, shall be effective unless each of the following conditions
has been satisfied:
(a) Tenant's trustee or Tenant, as debtor-in- possession, has
cured, or has provided Landlord with Assurance (hereinafter
defined) that it will cure (i) all monetary defaults under
this lease within ten (10) days from the date of such
assumption, and (ii) all nonmonetary defaults under this lease
within thirty (30) days from the date of such assumption; and
(b) Tenant's trustee or Tenant, as debtor-in-possession, has
provided Landlord with Assurance of the future performance of
each of the obligations under this Lease of Tenant, Tenant's
trustee or Tenant, as debtor-in-possession, and has (i)
deposited with Landlord, as security for the timely payment of
rent hereunder, an amount equal to one annual installment of
Annual Fixed Rent which Tenant was obligated to pay to
Landlord under this Lease during the Lease Year in which such
default occurred, and (ii) paid in advance to Landlord
Tenant's annual obligations for Additional Rent and all other
monetary charges payable by Tenant under this Lease. The
obligations imposed upon Tenant's trustee or Tenant, as
debtor-in-possession, shall continue with respect to Tenant or
any assignee of Tenant's interests in this Lease after the
completion of bankruptcy proceedings.
For purposes of this Section 16.2, Landlord and Tenant acknowledge that
"Assurance" shall mean no less than: (i) Tenant's trustee or Tenant, as
debtor-in-possession, has and will continue to have sufficient unencumbered
assets after the payment of all secured obligations and administration expenses
to assure Landlord that sufficient funds will be available to fulfill the
obligations of Tenant under this Lease, and (ii) the Bankruptcy Court shall have
entered an order segregating sufficient cash payment to Landlord, or Tenant's
trustee or Tenant, as debtor-in-possession, or shall have granted a valid and
perfected first lien and security interest and mortgage in property of Tenant,
acceptable as to value and kind to Landlord, to secure to Landlord the
obligation of Tenant's trustee or Tenant, as debtor-in- possession, to cure
defaults under this Lease, both monetary and nonmonetary, within the time period
set forth above.
16.3 BANKRUPTCY EVENT FOLLOWING LEASE ASSUMPTION. If this Lease is assumed
in accordance with the provisions of Section 16.2 and thereafter Tenant
is liquidated or files or has filed against it a subsequent petition
for reorganization or adjustment of debts under Chapter I I of the
Bankruptcy Code, Landlord may, at its option, terminate this Lease and
all rights of Tenant hereunder, by giving Tenant notice of its election
to so terminate within thirty (30) days after the occurrence of either
of such events.
16.4 LEASE ASSIGNMENT FOLLOWING LEASE ASSUMPTION. If Tenant's trustee or
Tenant, as debtor-in-possession, has assumed this Lease pursuant to the
terms and provisions of Sections 16.1 and 16.2 of this Article for the
purpose of assigning (or elects to assign) this Lease, this Lease may
be so assigned only if the proposed assignee has provided adequate
assurance of future performance of all of the terms, covenants and
conditions of this Lease to be performed by Tenant. Landlord shall be
entitled to receive
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all cash proceeds of any such assignment. As used herein, "adequate
assurance of future performance" shall mean that all of the following
conditions have been satisfied:
(a) the proposed assignee has furnished Landlord with either (i) a
current financial statement audited by a certified public
accountant indicating a net worth and working capital in
amounts which Landlord reasonably determines to be sufficient
to assure the future performance by such assignee of Tenant's
obligations under this Lease, or (ii) a guaranty or guaranties
in form and substance satisfactory to Landlord from one or
more persons or entities with aggregate net worth which
Landlord reasonably determines to be sufficient to assure the
future performance by such assignee of Tenant's obligations
under this Lease; and
(b) Landlord has obtained all consents or waivers from others
required under any lease, mortgage, financing agreement or
other agreement by which Landlord is bound to permit Landlord
to consent to such assignment.
16.5 USE AND OCCUPANCY CHARGES. When, pursuant to the Bankruptcy Code,
Tenant's trustee or Tenant, as debtor-in-possession, shall be obliged
to pay reasonable use and occupancy charges for the use of the
Premises, such charges shall not be less than the Annual Fixed Rent
which Tenant is obligated to pay to Landlord under this Lease, plus all
Additional Rent and all other monetary charges payable by Tenant under
this Lease.
16.6 FURTHER PROVISIONS. Neither the whole nor any portion of Tenant's
interest in this Lease or its estate in the Premises shall pass to any
United States trustee, receiver, assignee for the benefit of creditors,
or any other person or entity, or otherwise by operation of law under
the laws of any state having jurisdiction of the person of property of
Tenant, unless Landlord shall have consented to such transfer in
writing. No acceptance by Landlord of rent or any other payments from
any United States trustee, receiver, assignee, person or other entity
shall be deemed to constitute such consent by Landlord, nor shall it be
deemed a waiver of Landlord's right to terminate this Lease for any
transfer of Tenant's interest under this Lease without such consent.
ARTICLE XVII
MISCELLANEOUS PROVISIONS
17.1 WAIVER. Failure on the part of Landlord or Tenant to complain of any
action or nonaction on the part of the other, no matter how long the
same may continue, shall never be a waiver by Tenant or Landlord,
respectively, of any of its rights hereunder.
Further, no waiver at any time of any of the provisions hereof by Landlord or
Tenant shall be construed as a waiver of any of the other provisions hereof, and
a waiver at any time of any of the provisions hereof shall not be construed as a
waiver at any subsequent time of the same provisions. The consent or approval of
Landlord or Tenant to or of any action by the other requiring such consent or
approval shall not be construed to waive or render unnecessary Landlord's or
Tenant's consent or approval to or of any subsequent similar act by the other.
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No payment by Tenant, or acceptance by Landlord, of a lesser amount than shall
be due from Tenant to Landlord shall be treated otherwise than as a payment on
account. The acceptance by Landlord of a check for a lesser amount with an
endorsement or statement thereon, or upon any letter accompanying such check,
that such lesser amount is payment in full, shall be given no effect, and
Landlord may accept such check without prejudice to any other rights or remedies
which Landlord may have against Tenant. Further, the acceptance by Landlord of
Annual Fixed Rent, Additional Rent or any other charges paid by Tenant under
this Lease shall not be or be deemed to be a waiver by Landlord of any default
by Tenant, whether or not Landlord knows of such default, except for such
defaults as to which such payment relates.
17.2 CUMULATIVE REMEDIES. The specific remedies to which Landlord and Tenant
may resort under the terms of this Lease are cumulative and are not
intended to be exclusive of any other remedies or means of redress
which they may be lawfully entitled to seek in case of any breach or
threatened breach of any provisions of this Lease. In addition to the
other remedies provided in this Lease, Landlord shall be entitled to
the restraint by injunction of the violation or attempted or threatened
violation of any of the covenants, conditions or provisions of this
Lease or to seek specific performance of any such covenants, conditions
or provisions, provided, however, that the foregoing shall not be
construed as a confession ofjudgment by Tenant.
17.3 QUIET ENJOYMENT. Landlord agrees that, upon Tenant's paying the Annual
Fixed Rent, Additional Rent and other charges herein reserved, and
performing and observing the covenants, conditions and agreements
hereof upon the part of Tenant to be performed and observed, Tenant
shall and may peaceably hold and enjoy the Premises during the term of
this Lease, without interruption or disturbance from Landlord or
persons claiming through or under Landlord, subject, however, to the
terms of this Lease. This covenant shall be construed as running with
the land to and against subsequent owners and successors in interest,
and is not, nor shall it operate or be construed as, a personal
covenant of Landlord, except to the extent of the Landlord's interest
in the Premises, and this covenant and any and all other covenants of
Landlord contained in this Lease shall be binding upon Landlord and
upon such subsequent owners and successors in interest of Landlord's
interest under this Lease, to the extent of their respective interests,
as and when they shall acquire same and then only for so long as they
shall retain such interest.
17.4 SURRENDER. (A) No act or thing done by Landlord during the Lease Term
shall be deemed an acceptance of a surrender of the Premises, and no
agreement to accept such surrender shall be valid, unless in writing
signed by Landlord. No employee of Landlord or of Landlord's agents
shall have any power to accept the keys of the Premises as an
acceptance of a surrender of the Premises prior to the termination of
this Lease; provided, however, that the foregoing shall not apply to
the delivery of keys to Landlord or its agents in its (or their)
capacity as managing agent or for purpose of emergency access. In any
event, however, the delivery of keys to any employee of Landlord or of
Landlord's agents shall not operate as a termination of the Lease or a
surrender of the Premises.
(B) Upon the expiration or earlier termination of the Lease Term, Tenant shall
surrender the Premises to Landlord in the condition as required by Sections 8.1
and 9.5, first removing all goods and effects of Tenant and completing such
other removals as may be permitted or required pursuant to Section 9.5.
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17.5 BROKERAGE. Tenant warrants and represents that Tenant has not dealt
with any broker in connection with the consummation of this Lease other
than the broker, person or firm designated in Section 1.2 hereof; and
in the event any claim is made against the Landlord relative to
dealings with brokers other than the broker designated in Section 1.2
hereof, Tenant shall defend the claim against Landlord with counsel of
Landlord's selection and save harmless and indemnify Landlord on
account of loss, cost or damage which may arise by reason of such
claim. Landlord agrees that it shall be solely responsible for the
payment of brokerage commissions to the broker, person or firm
designated in Section 1.2 hereof.
17.6 INVALIDITY OF PARTICULAR PROVISIONS. If any term or provision of this
Lease, or the application thereof to any person or circumstance shall,
to any extent, be invalid or unenforceable, the remainder of this
Lease, or the application of such term or provision to persons or
circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each term and
provision of this Lease shall be valid and be enforced to the fullest
extent permitted by law.
17.7 PROVISIONS BINDING, ETC. The obligations of this Lease shall run with
the land, and except as herein otherwise provided, the terms hereof
shall be binding upon and shall inure to the benefit of the successors
and assigns, respectively, of Landlord and Tenant and, if Tenant shall
be an individual, upon and to his heirs, executors, administrators,
successors and assigns. Each term and each provision of this Lease to
be performed by Tenant shall be construed to be both a covenant and a
condition. The reference contained to successors and assigns of Tenant
is not intended to constitute a consent to assignment by Tenant.
17.8 RECORDING. Each of Landlord and Tenant agree not to record the within
Lease, but each party hereto agrees, on the request of the other, to
execute a so-called Notice of Lease or short form lease in form
recordable and complying with applicable law and reasonably
satisfactory to Landlord's and Tenant's attorneys. In no event shall
such document set forth the rent or other charges payable by Tenant
under this Lease; and any such document shall expressly state that it
is executed pursuant to the provisions contained in this Lease, and is
not intended to vary the terms and conditions of this Lease.
17.9 NOTICES AND TIME FOR ACTION. Whenever, by the terms of this Lease,
notice shall or may be given either to Landlord or to Tenant, such
notices shall be in writing and shall be sent by hand, registered or
certified mail, or overnight or other commercial courier, postage or
delivery charges, as the case may be, prepaid as follows:
If intended for Landlord, addressed to Landlord at the address
set forth on the first page of this Lease (or to such other
address or addresses as may from time to time hereafter be
designated by Landlord by like notice).
If intended for Tenant, addressed to Tenant at the address set
forth on the first page of this Lease except that from and
after the Commencement Date the address of Tenant shall be the
Premises (or
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to such other address or addresses as may from time to time
hereafter be designated by Tenant by like notice).
Except as otherwise provided herein, all such notices shall be effective when
received; provided, that (i) if receipt is refused, notice shall be effective
upon the first occasion that such receipt is refused or (ii) if the notice is
unable to be delivered due to a change of address of which no notice was given,
notice shall be effective upon the date such delivery was attempted.
Where provision is made for the attention of an individual or department, the
notice shall be effective only if the wrapper in which such notice is sent is
addressed to the attention of such individual or department.
Time is of the essence with respect to any and all notices and periods for
giving of notice or taking any action thereto under this Lease.
17.10 WHEN LEASE BECOMES BINDING. Employees or agents of Landlord have no
authority to make or agree to make a lease or any other agreement or
undertaking in connection herewith. The submission of this document for
examination and negotiation does not constitute an offer to lease, or a
reservation of, or option for, the Premises, and this document shall
become effective and binding only upon the execution and delivery
hereof by both Landlord and Tenant. All negotiations, considerations,
representations and understandings between Landlord and Tenant are
incorporated herein and may be modified or altered only by written
agreement between Landlord and Tenant, and no act or omission of any
employee or agent of Landlord shall alter, change or modify any of the
provisions hereof
17.11 PARAGRAPH HEADINGS. The paragraph headings throughout this instrument
are for convenience and reference only, and the words contained therein
shall in no way be held to explain, modify, amplify or aid in the
interpretation, construction or meaning of the provisions of this
Lease.
17.12 RIGHTS OF MORTGAGEE. This Lease shall be subject and subordinate to any
mortgage now or hereafter on the Site or the Building, or both, and to
all renewals, modifications, consolidations, replacements and
extensions thereof and all substitutions therefor, provided that the
holder of such mortgage agrees to recognize the right of Tenant to use
and occupy the Premises upon the payment of rent and other charges
payable by Tenant under this Lease and the performance by Tenant of
Tenant's obligations hereunder. In confirmation of such subordination
and recognition, Tenant shall execute and deliver promptly such
instruments of subordination as such mortgagee may reasonably request,
subject to receipt of such instruments of recognition from such
mortgagee as Tenant may reasonably request. In the event that any
mortgagee or its respective successor in title shall succeed to the
interest of Landlord, then 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. If any holder of a mortgage which includes
the Premises, executed and recorded prior to the Date of this Lease,
shall so elect, this Lease, and the rights of Tenant hereunder, shall
be superior in right to the rights of such holder, with the same force
and effect as if this Lease had been executed, delivered and recorded,
or a statutory Notice
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hereof recorded, prior to the execution, delivery and recording of any
such mortgage. The election of any such holder shall become effective
upon either notice from such holder to Tenant in the same fashion as
notices from Landlord to Tenant are to be given hereunder or by the
recording in the appropriate registry or recorder's office of an
instrument in which such holder subordinates its rights under such
mortgage to this Lease.
If in connection with obtaining financing for the Demised Premises a bank,
insurance company, pension trust or other institutional lender shall request
reasonable modifications in this Lease as a condition to such financing, Tenant
will not unreasonably withhold, delay or condition its consent thereto, provided
that such modifications do not increase the monetary obligations of Tenant
hereunder or materially adversely affect the leasehold interest hereby created
or Tenant's rights hereunder.
17.13 RIGHTS OF GROUND LESSOR. If Landlord's interest in property (whether
land only or land and buildings) which includes the Premises is
acquired by another party and simultaneously leased back to Landlord
herein, the holder of the ground lessor's interest in such lease shall
enter into a recognition agreement with Tenant simultaneously with the
sale and leaseback, wherein the ground lessor will agree to recognize
the right of Tenant to use and occupy the Premises upon the payment of
Annual Fixed Rent, Additional Rent and other charges payable by Tenant
under this Lease and the performance by Tenant of Tenant's obligations
hereunder, and wherein Tenant shall agree to attorn to such ground
lessor as its Landlord and to perform and observe all of the tenant
obligations hereunder, in the event such ground lessor succeeds to the
interest of Landlord hereunder under such ground lease.
17.14 NOTICE TO MORTGAGEE AND GROUND LESSOR. After receiving notice from any
person, xxxx or other entity that it holds a mortgage which includes
the Premises as part of the mortgaged premises, or that it is the
ground lessor under a lease with Landlord as ground lessee, which
includes the Premises as a part of the Premises, no notice from Tenant
to Landlord shall be effective unless and until a copy of the same is
given to such holder or ground lessor at the address as specified in
said notice (as it may from time to time be changed), and the curing of
any of Landlord's defaults by such holder or ground lessor within a
reasonable time after such notice (including a reasonable time to
obtain possession of the premises if the mortgagee or ground lessor
elects to do so) shall be treated as performance by Landlord. For the
purposes of this Section 17.14, the term "mortgage" includes a mortgage
on a leasehold interest of Landlord (but not one on Tenant's leasehold
interest).
17.15 ASSIGNMENT OF RENTS. With reference to any assignment by Landlord of
Landlord's interest in this Lease, or the rents payable hereunder,
conditional in nature or otherwise, which assignment is made to the
holder of a mortgage or ground lease on property which includes the
Premises, Tenant agrees:
(a) That the execution thereof by Landlord, and the acceptance
thereof by the holder of such mortgage, or the ground lessor,
shall never be treated as an assumption by such holder or
ground lessor of any of the obligations of
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Landlord hereunder, unless such holder, or ground lessor,
shall, by notice sent to Tenant, specifically otherwise elect;
and
(b) That, except as aforesaid, such holder or ground lessor shall
be treated as having assumed Landlord's obligations hereunder
only upon foreclosure of such holder's mortgage and the taking
of possession of the Premises, or, in the case of a ground
lessor, the assumption of Landlord's position hereunder by
such ground lessor. In no event shall the acquisition of title
to the Building and the land on which the same is located by a
purchaser which, simultaneously therewith, leases the entire
Building or such land back to the Seller thereof be treated as
an assumption, by operation of law or otherwise, of Landlord's
obligations hereunder, but Tenant shall look solely to such
seller-lessee, and its successors from time to time in title,
for performance of Landlord's obligations hereunder. In any
such event, this Lease shall be subject and subordinate to the
lease to such purchaser provided that such purchaser-lessor
agrees to recognize the right of Tenant to use and occupy the
Demised Premises upon the payment of rent and all other
charges payable by Tenant under this Lease and the performance
by Tenant of Tenant's obligations under this Lease. For all
purposes, such seller-lessee, and its successors in title,
shall be the landlord hereunder unless and until Landlord's
position shall have been assumed by such purchaser-lessor.
17.16 STATUS REPORT AND FINANCIAL STATEMENTS. Recognizing that Landlord may
find it necessary to establish to third parties, such as accountants,
banks, potential or existing mortgagees, potential purchasers or the
like, the then current status of performance hereunder, Tenant on the
request of Landlord made from time to time, will promptly furnish to
Landlord, or any existing or potential holder of any mortgage
encumbering the Premises, the Building, the Site and/or the Complex or
any potential purchaser of the Premises, the Building, the Site and/or
the Complex (each an "Interested Party") a statement of the status of
any matter pertaining to this Lease, including, without limitation,
acknowledgments that (or the extent to which) each party is in
compliance with its obligations under the terms of this Lease. In
addition, Tenant shall deliver to Landlord, or any Interested Party
designated by Landlord, financial statements of Tenant, and any
guarantor of Tenant's obligations under this Lease, as reasonably
requested by Landlord (but in no event more frequently than on three
(3) occasions during the Lease Term) including, but not limited to,
financial statements for the past three (3) years. Landlord agrees that
it shall execute an instrument in a form reasonably acceptable to
Landlord, wherein Landlord agrees to keep any information contained in
such status statement or financial statement confidential, except that
Landlord may provide the same to any Interested Party. Any such status
statement or financial statement delivered by Tenant or Landlord
pursuant to this Section 17.16 may be relied upon by any Interested
Party.
17.17 SELF-HELP. If Tenant shall at any time fail to make any payment or
perform any act which Tenant is obligated to make or perform under this
Lease and (except in the case of emergency) if the same continues
unpaid or unperformed beyond applicable grace periods, then Landlord
may, but shall not be obligated so to do, after ten (10) days' notice
to and demand upon Tenant, or with notice as soon as may be practicable
in the case of
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any emergency (which notice may be before or after the exercise by
Landlord of its rights hereunder), and without waiving, or releasing
Tenant from, any obligations of Tenant in this Lease contained, make
such payment or perform such act which Tenant is obligated to perform
under this Lease in such manner and to such extent as may be reasonably
necessary, and, in exercising any such rights, pay any costs and
expenses, employ counsel and incur and pay reasonable attorneys' fees.
All sums so paid by Landlord and all reasonable and necessary costs and
expenses of Landlord incidental thereto, together with interest thereon
at the annual rate equal to the sum of (a) the Base Rate from time to
time announced by Bank of Boston as its Base Rate and (b) two percent
(2%), from the date of the making of such expenditures by Landlord,
shall be deemed to be Additional Rent and, except as otherwise in this
Lease expressly provided, shall be payable to the Landlord on demand,
and if not promptly paid shall be added to any rent then due or
thereafter becoming due under this Lease, and Tenant covenants to pay
any such sum or sums with interest as aforesaid, and Landlord shall
have (in addition to any other right or remedy of Landlord) the same
rights and remedies in the event of the non-payment thereof by Tenant
as in the case of default by Tenant in the payment of Annual Fixed
Rent.
17.18 HOLDING OVER. Any holding over by Tenant after the expiration of the
term of this Lease shall be treated as a tenancy at sufferance at one
and one-half (I V2) the rents and other charges herein (prorated on a
daily basis) and shall otherwise be on the terms and conditions set
forth in this Lease, as far as applicable; provided, however, that
neither the foregoing nor any other term or provision of this Lease
shall be deemed to permit Tenant to retain possession of the Premises
or hold over in the Premises after the expiration or earlier
termination of the Lease Term.
17.19 ENTRY BY LANDLORD. Landlord, and its duly authorized representatives,
shall, upon reasonable prior notice (except in the case of emergency),
have the right to enter the Premises at all reasonable times (except at
any time in the case of emergency) for the purposes of inspecting the
condition of same and making such repairs, alterations, additions or
improvements thereto as may be necessary if Tenant fails to do so as
required hereunder (but the Landlord shall have no duty whatsoever to
make any such inspections, repairs, alterations, additions or
improvements except as otherwise provided in Sections 4.2, 4.3, 7.1 and
7.2), and to show the Premises to prospective tenants during the six
(6) months preceding expiration of the term of this Lease as it may
have been extended and at any reasonable time during the Lease Term to
show the Premises to prospective purchasers and mortgagees.
17.20 TENANT'S PAYMENTS. Each and every payment and expenditure, other than
Annual Fixed Rent, shall be deemed to be Additional Rent hereunder,
whether or not the provisions requiring payment of such amounts
specifically so state, and shall be payable, unless otherwise provided
in this Lease, within ten (10) days after written demand by Landlord,
and in the case of the non-payment of any such amount, Landlord shall
have, in addition to all of its other rights and remedies, all the
rights and remedies available to Landlord hereunder or by law in the
case of non-payment of Annual Fixed Rent. Unless expressly otherwise
provided in this Lease, the performance and observance by Tenant of all
the terms, covenants and conditions of this Lease to be performed and
observed by Tenant shall be at Tenant's sole cost and expense.
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17.21 LATE PAYMENT. If Landlord shall not have received any payment or
installment of rent on or before the date (the "Due Date") on which the
same first becomes payable under this Lease, the amount of such payment
or installment shall bear interest from the Due Date through and
including the date such payment or installment is received by Landlord,
at a rate equal to the lesser of (i) the rate announced by The First
National Bank of Boston from time to time as its prime or base rate (or
if such rate is no longer available, a comparable rate reasonably
selected by Landlord), plus two percent (2%), or (ii) the maximum
applicable legal rate, if any. Such interest shall be deemed Additional
Rent and shall be paid by Tenant to Landlord upon demand.
17.22 COUNTERPARTS. This Lease may be executed in several counterparts, each
of which shall be deemed an original, and such counterparts shall
constitute but one and the same instrument.
17.23 ENTIRE AGREEMENT. This Lease constitutes the entire agreement between
the parties hereto, Landlord's managing agent and their respective
affiliates with respect to the subject matter hereof and thereof and
supersedes all prior dealings between them with respect to such subject
matter, and there are no verbal or collateral understandings,
agreements, representations or warranties not expressly set forth in
this Lease and such Agreement to Lease. No subsequent alteration,
amendment, change or addition to this Lease shall be binding upon
Landlord or Tenant, unless reduced to writing and signed by the party
or parties to be charged therewith.
17.24 LANDLORD LIABILITY. Tenant shall neither assert nor seek to enforce any
claim for breach of this Lease against any of Landlord's assets other
than Landlord's interest in the Building, and Tenant agrees to look
solely to such interest for the satisfaction of any liability of
Landlord under this Lease, it being specifically agreed that neither
Landlord, nor any successor holder of Landlord's interest hereunder,
nor any beneficiary of any Trust of which any person from time to time
holding Landlord's interest is Trustee, nor any such Trustee, shall
ever be personally liable for any such liability. This paragraph shall
not limit any right that Tenant might otherwise have to obtain
injunctive relief against Landlord or Landlord's
successors-in-interest, or to take any other action which shall not
involve the personal liability of Landlord, or of any successor holder
of Landlord's interest hereunder, or of any beneficiary of any trust of
which any person from time to time holding Landlord's interest is
Trustee, or of any such Trustee, to respond in monetary damages from
Landlord's assets other than Landlord's interest in said Building, as
aforesaid. In no event shall Landlord ever be liable for any indirect
or consequential damages.
17.25 NO PARTNERSHIP. The relationship of the parties hereto is that of
landlord and tenant and no partnership, joint venture or participation
is hereby created.
17.26 SECURITY DEPOSIT. IF, in Section 1.2 hereof, a security deposit is
specified, Tenant agrees that the same will be paid upon execution and
delivery of this Lease and that Landlord shall hold the same,
throughout the term of this Lease (including any extension thereof), as
security for the performance by Tenant of all obligations on the part
of Tenant to be performed. Landlord shall have the right from time to
time without
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prejudice to any other remedy Landlord may have on account thereof, to
apply such deposit, or any part thereof, to Landlord's damages arising
from any default on the part of Tenant. If Landlord so applies all or
any portion of such deposit, Tenant shall within seven (7) days after
notice from Landlord deliver cash to Landlord in an amount sufficient
to restore such deposit to the full amount stated in Section 1.2.
Tenant not then being in default and having performed all of its
obligations under this Lease, including the payment of all Annual Fixed
Rent, Landlord shall return the deposit, or so much thereof as shall
not have theretofore been applied in accordance with the terms of this
Section 17.26, to Tenant on the expiration or earlier termination of
the Lease Tenn and surrender of possession of the Premises by Tenant to
Landlord in the condition required in the Lease at such time. While
Landlord holds such deposit, Landlord shall have no obligation to pay
interest on the same and shall have the right to commingle the same
with Landlord's other fimds. If Landlord conveys Landlord's interest
under this Lease, the deposit, or any part thereof not previously
applied, shall be turned over by Landlord to Landlord's grantee for
proper application of the deposit in accordance with the terms of this
Section 17.26, and the return thereof in accordance herewith.
Neither the holder of a mortgage nor the landlord in a ground lease on property
which includes the Premises shall ever be responsible to Tenant for the return
or application of any such deposit, whether or not it succeeds to the position
of Landlord hereunder, unless such deposit shall have been received in hand by
such holder or ground lessor.
17.27 GOVERNING LAW. This Lease shall be governed exclusively by the
provisions hereof and by the law of The Commonwealth of Massachusetts,
as the same may from time to time exist.
(HERE ENDS THIS PAGE.)
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EXECUTED as a sealed instrument in two or more counterparts by persons
or officers hereunto duly authorized on the Date set forth in Section 1.2 above.
WITNESS: LANDORD:
/s/ Xxxxx Xxxxxxx
----------------------------------------
-------------------------------------- XXXXX XXXXXXX AS TRUSTEE OF ONE
CAMBRIDGE CENTER TRUST FOR HIMSELF
AND CO-TRUSTEES, BUT NOT INDIVIDUALLY
Tenant:
Witness: THE MEDICINES COMPANY
/s/ Xxxxxx Xxxxxxxxxx By /s/ Xxxxx Xxxxxxxx
-------------------------------------- --------------------------------------
Name Xxxxx Xxxxxxxx
------------------------------------
Title Chief Executive Officer
-----------------------------------
----------------------------------------
HEREUNTO DULY AUTHORIZED
By
-------------------------------------- --------------------------------------
Name
------------------------------------
Title
-----------------------------------
----------------------------------------
HEREUNTO DULY AUTHORIZED
(CORPORATE SEAL)
44
EXHIBIT A-1
DESCRIPTION OF SITE
A certain tract of land situated on the southerly side of Broadway in the City F
Cambridge, in the County of Middlesex, Commonwealth of Massachusetts, bounded
and described as follows:
Beginning at a point in the southerly line of Broadway at the northwesterly
corner of the Premises S 60(0)-30'-18"E a distance of Six Hundred Sixty-Six and
Eighty-One Hundredths feet (666.8l') from the point of curvature of the
southerly sideline of Broadway and the easterly line of Sixth Street; thence
S 60 degrees-301-18" E a distance of Two Hundred Six and EightyThree
Hundredths feet (206.83' ) bounding on the
southerly line of Broadway to a point; thence
Along the arc of a curve, curving to the right with a radius of Five Hundred
Eighty-One and Eighty-Eight Hundredths feet (581.88'), a distance of Fifty-Five
and Fifty Hundredths (55.50') to a point; thence
S49 degrees-201-28" E a distance of Seventy and No Hundredths feet
(70.00') along a certain parcel of land, now or
formerly owned by the Cambridge Redevelopment
Authority for the next four (4) courses to a
point; thence
S 34 degrees-35'-57" W a distance of Thirty-Four and Fifty-Five
Hundredths feet (34.55') to a point; thence
N 81 degrees-44'-36" W a distance of One Hundred Ten and No
N 05 degrees-30'-53" E a distance of Forty-Four and Fifty-Nine
N 84 degrees-29'-07" W a distance of One Hundred Seventy-Six and
Forty-One Hundredths feet (176.4l') to a
point; thence
N 05 degrees-34'-07" E a distance of Twenty-Four and Five Hundredths
feet (24.05') along the outside face of a
brick building for the next four (4) courses
to a point; thence
N 84 degrees-151-14" W a distance of Nine and Ninety-Five Hundredths
feet (9.95') to a point; thence
N 05 degrees-29'-37" E a distance of Fifty-Six and Ninety-Two
Hundredths feet (56.92') to a point; thence
S 84 degrees-25'-46" E a distance of Twenty and Two Hundredths feet
(20.021) to a point; thence
N 05 degrees-27'-58" E a-distance of Fifty-Three-and Forty-Four
Hundredths feet (53.44') to the point of
beginning.
The above-described tract of land contains 26,325 square feet, more or less, as
shown on a plan entitled "Xxxxxxx Sq. Urban Renewal Area, Cambridge, Mass.";
Dated November 19, 1985, Revised August 19, 1986; Prepared by Xxxxx & Xxxxxxxxx,
Inc., Scale 1"=40'. (Sheet 1 of 4).
The Site has appurtenant thereto and. is, subject -to. all rights, easements and
restrictions of record, whether currently existing or to be hereafter created.
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EXHIBIT D
ONE CAMBRIDGE CENTER
LANDLORD'S SERVICES
I. CLEANING
A. OFFICE AREA
Daily: (Monday through Friday, inclusive, holidays excepted)
1. Empty all waste-receptacles and ash trays and remove waste
material from the Premises; clean ash trays daily and wash
receptacles as necessary.
2. Sweep and dust mop all uncarpeted areas using a dust-treated
mop.
3. Vacuum all rugs and carpeted areas.
4. Hand dust and wipe clean with treated cloths all horizontal
surfaces including furniture, office equipment, window xxxxx,
door ledges, chair rails, and convector tops, within normal
reach.
5. Wash clean all water fountains.
6. Remove and dust under all telephones and other furnishings
(but not computer terminals or other specialized equipment)
and replace same.
7. Wipe clean all brass and other bright-work.
8. Hand dust all grill work within normal reach.
9. Upon completion of cleaning, turn off all lights, lock main
entry doors and any other doors found locked, and leave the
Premises in an orderly condition.
Weekly:
1. Dust coat racks, and the like.
2. Remove all fingermarks from private entrance doors, light
switches and doorways.
Quarterly:
Render high dusting not reached in daily cleaning to include:
1. Dusting all pictures, frames, charts, graphs and similar wall
hangings.
Exhibit D Page 1 of 5
46
2. Dusting of all vertical surfaces, such as walls, partitions,
doors and ducts.
3. Dusting of all pipes, ducts and high moldings.
4. Dusting of all venetian blinds.
B. LAVATORIES
Daily: (Monday through Friday, inclusive, holidays excepted.)
1. Sweep and damp mop floors.
2. Clean all mirrors, powder shelves, dispensers and receptacles,
bright work, flushometers, piping and toilet seat hinges.
3. Wash both sides of all toilet seats.
4. Wash all basins,.-bowls and urinals.
5. Dust and clean all powder room fixtures.
6. Empty and clean paper towel and sanitary disposal receptacles.
7. Remove waste paper and refuse.
8. Refill tissue holders, soap dispensers, towel dispensers and
vending sanitary dispensers as required, materials to be
furnished by Landlord;
9. A sanitizing solution will be used in all lavatory cleaning.
Monthly:
1. Machine scrub lavatory floors.
2. Wash all partitions and tile walls in lavatories.
C. MAIN LOBBY, ELEVATORS, BUILDING EXTERIOR AND CORRIDORS
Daily: (Monday through Friday, inclusive, holidays excepted.)
1. Sweep and wash all floors.
2. Wash all rubber mats.
3. Clean elevators, wash or vacuum floors, wipe down walls and
doors.
4. Spot clean any metal work inside lobby.
5. Spot clean any metal work surrounding Building entrance doors.
Exhibit D Page 2 of 5
47
Monthly:
All resilient tile floors in public areas to be treated equivalent to
spray buffing.
D. WINDOW CLEANING
Windows of exterior walls will be washed on the inside and outside no
less than three (3) times per year.
E. Tenant requiring services in excess of those described above shall
request same through Landlord, and any such excess services provided
shall be at Tenant's expense.
II. HEATING, VENTILATING, AIR CONDITIONING
A. Landlord shall furnish space 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, daily from 8:00 AM to 6:00 PM. Saturdays from 8:00 AM to
1:00 PM, Sundays and holidays excepted.
If Tenant shall require air conditioning or heating or ventilation
outside the hours and days above specified, Landlord shall furnish such
service at Tenant's expense.
B. The air conditioning system is based upon an occupancy of not more than
one person per 150 square feet of useable floor area, and upon a
combined lighting and standard electrical load not to exceed 3.0 xxxxx
per square foot of useable floor area. In the event Tenant exceeds this
condition or introduces onto the Premises equipment which overloads the
systems, and/oroin'any other way causes,the system not adequately to
perform their proper functions, supplementary systems may at Landlord's
option be provided by Landlord at Tenant's expense.
III. WATER
Cold water at temperatures supplied by the City of Cambridge water
mains for drinking. lavatory, toilet and (if the same have been
approved by Landlord for installation in the Premises), kitchen and
restaurant purposes and hot water for lavatory purposes only from
regular building supply at prevailing temperatures; provided, however,
that Landlord may require Tenant at Tenant's expense, to install a
meter or meters to measure the water supplied to any kitchen (including
dishwashing) and restaurant areas in the Premises, in which case Tenant
shall upon Landlord's request reimburse Landlord for the cost of the
water (including heating thereof) consumed in such areas and the sewer
use charges resulting therefrom.
IV. ELEVATORS
Exhibit D Page 3 of 5
48
The passenger elevator system shall be in automatic operation and
available to Tenant at all times except when necessary repairs or
inspections are being rendered. The use of the service elevator will
have to be scheduled with the Landlord and coordinated with the needs
of the other tenants.
V. ELECTRICAL SERVICE
A. Landlord shall cause to be provided electric power for up to 1.5 xxxxx
per square foot of useable floor area for lighting plus 1.0 xxxxx per
square foot of useable floor area for office machines through standard
receptacles for the typical office space.
B. Landlord, at its option, may require separate metering and direct
billing to Tenant for the electric power required for any special
equipment (such as computers and reproduction equipment) that requires
either 3phase electric power or any voltage other than 120. Landlord
will furnish and install at Tenant's expense all replacement lighting
tubes,-lamps,znd ballasts required by Tenant. Landlord will clean
lighting fixtures on a regularly scheduled basis at Tenant's expense.
Useable floor area as used herein means the area between the central
building core and the interior face of the exterior walls, unless
Tenant's space includes less than the entire rentable floor area of any
floor, in which case the useable floor area shall mean the area within
the demising walls but shall excludes any common area on the floor.
C. Notwithstanding anything else in this Exhibit D to the contrary, Tenant
shall pay for all electrical service provided for lights, power,
..HVAC, -,etc. , pursuant to the terms of the Lease to which this
Exhibit D is attached.
Exhibit D Page 4 of 5
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EXHIBIT H
ONE CAMBRIDGE CENTER
PROCEDURE FOR ADJUSTMENT OF COSTS
OF ELECTRIC POWER USAGE BY TENANTS
This memo outlines the procedure for adjusting charges for electric
power to tenants at the office building to be known as One Cambridge Center.
1. Main electric service to this building will be provided by the
local util ` ity company (currently Cambridge Electric Light
Company) to a single main meter. All charges by the utility
will be read from. this meter and billed to and paid by
Landlord at rates established by the utility company.
2. All office tenants shall pay for electricity as- part of their
rental payments, including electricity for both common areas
of the building and for tenant occupied areas. Each lease
shall also contain a provision making such tenant responsible
for its proportionate share of any increases in the cost of
electricity used in the building over the base year amounts
established in the Lease.
3. In order to assure that charges for electric service are
apportioned fairly among tenants in - relation. to the
relative amounts of electricity used-by each tenant,
additional meters (known as "check meters") will be installed
by Landlord to permit periodic evaluations of electric usage
to be made. On each office floor there will be one meter
serving all of the floor.
4. Each meter shall be installed so that it will measure all of
the electricity provided to the floor governed by that meter,
including all lights and power in both tenant and common core
areas (restrooms, corridors, HVAC equipment room etc.). This
shall not, however, include the following, which `Shall be
wired from the main building service and not through the check
meters stairwell and emergency lights; elevators; lighting and
HVAC in the building lobby and main service areas; exterior
lighting; and all main building mechanical systems. (Common
areas on each floor, including the elevator lobby, corridors,
and bathrooms will have service through and check meters on
each floor.) In addition, further modification to the
number-and location of check meters may-be made by Landlord if
required to improve the quality of information obtained
thereby.
5. The Landlord will cause the check meters to be read
periodically by its employees and will perform an analysis of
information for the purpose of determining whether any
adjustments are required to achieve an equitable allocation of
the costs of electric service among the tenants in the
building in relation to the respective amounts of usage of
electricity for those tenants. For this purpose, the Landlord
shall, as far as possible in each case, read the meters to
determine usage
Exhibit H Page 1 of 3
50
for periods that include one or more entire periods used by
the utility company for the reading of the main building meter
(so that the Landlord may, in its discretion, choose periods
that are longer than those used by the utility company --for
example, quarterly, semi-annual or annual periods).
6. A rent adjustment shall be made by Landlord on the following
basis:
a. The total kilowatt hour usage for the period under
evaluation shall be established for each check meter
and for each floor.andalso.for the building as a
whole by a reading of the main building meter for
that period.
b. The cost of the total amount of electricity supplied
for usage by tenants during the period (herein called
"Tenant Electricity") shall be determined by
multiplying the total cost of electricity as invoiced
by the utility company for the same period by a
fraction, the numerator of which is the total amount
of kilowatt hour usage as measured by all of the
check meters in the building .(Tenant Electricity)
and the denominator of which is the total amount of
kilowatt hour usage for the entire building as
measured by the main building electric meter.
c. Where one or more floors is occupied entirely by one
tenant, its allocable share of Tenant `Electricity
cost for the period shall be determined by
multiplying the total costs of Tenant Electricity by
a fraction, the numerator of which is the kilowatt
hour usage of tenant electricity by said tenant
(calculated as the sum of kilowatt hour usage during
the period measured by all check meters serving its
premises) and the denominator of which is the total
kilowatt hour usage of Tenant Electricity for the
same period.
d. Where a floor is occupied by more than one tenant,
the cost of Tenant Electricity for that floor shall
first be determined by the same procedure as set
forth in paragraph (c) above, and then the allocable
share of each tenant on that floor shall be
determined by multiplying the cost of Tenant
Electricity for that floor by a fraction, the
numerator of which is the rentable area leased to
each tenant (respectively for each tenant) and the
denominator of which is the total rentable area under
lease to tenants on said floor.
e. Where part or all of the rentable area on a floor has
been occupied for less than all of the period for
which adjustments are being made, appropriate and
equitable modifications shall be made to the
allocation formula so that each tenant's allocable
share of costs equitable reflects its period of
occupancy, provided that in no event shall the total
of all costs as allocated to tenants be less than the
total cost of Tenant Electricity for said period.
7. The results of the cost adjustment analysis made by
Exhibit H Page 2 of 3
51
Landlord under paragraph (6) above shall be compared to the
schedule of amounts due from tenants in regard to Tenant
Electricity in accordance with the leases in effect during the
period in question. Where the .payment due pursuant to the
lease is less than the cost as determined by the cost
adjustment analysis, each tenant shall be billed for the
difference by Landlord. Where the payment due pursuant to the
lease is greater than the cost as determined by the cost
adjustment analysis, the tenant shall be provided with a
credit in the amount of such difference applicable to the
rental payment next due (or in the case of tenants no longer
in occupancy, Landlord shall refund such amount to such
tenants).
In addition, where the leases call for tenants to make
periodic payments to Landlord based on estimates by .Landlord
of their allocable share of Tenant Electricity, such estimates
by Landlord shall, so far as possible, be based on the
effective distribution of costs among tenants during prior
periods, resulting from the application of the cost adjustment
procedures established herein.
8. All costs of electricity billed to Landlord through the main
electric meter for use in and around the building other than
the costs of Tenant Electricity allocated pursuant to the
procedures established herein, shall be treated as part of the
Operating Expenses for the Property for purposes of
determining the allocation of those costs.
Exhibit H Page 3 of 3
52
FIRST AMENDMENT TO LEASE
FIRST AMENDMENT TO LEASE dated as of this 17th day of July, 1998, by
and between XXXXXXXX X. XXXXXXXXX, XXXXXX X. XXXXX and XXXXX XXXXXXX, the
TRUSTEES of ONE CAMBRIDGE CENTER TRUST under Declaration of Trust dated May 14,
1985, recorded with the Middlesex South District Registry of Deeds in Book
16221, Page 413 as amended by instrument dated July 31, 1986 and recorded with
said Registry of Deeds in Book 17438, Page 23, but not individually,
("Landlord") and THE MEDICINES COMPANY, a Delaware corporation ("Tenant").
RECITALS
By Lease dated March 15, 1997 (the "Lease"), Landlord did lease to
Tenant and Tenant did hire and lease from Landlord certain premises containing
4,063 square feet of rentable floor area located on the fourth (4th) floor in
the building (the "Building") known as and numbered Xxx Xxxxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxxxxx. Said premises is referred to in the Lease as the
"Premises" and is hereinafter sometimes referred to as the "Initial Premises."
By letter agreement between Landlord and Tenant dated June 26, 1998
(the "Letter Agreement") Landlord and Tenant extended the term of the Lease for
one (1) period of one (1) month (the "First Extended Term") upon the terms set
forth in such Letter Agreement.
Landlord and Tenant have agreed to terminate the Lease with regard to
the entire Initial Premises and Tenant has determined to lease from Landlord the
8,811 square feet of rentable floor area (the "Rentable Floor Area of the New
Premises") located on the third (3rd) floor of the Building (the "New Premises")
shown on Exhibit A attached hereto, upon the terms and conditions contained in
this First Amendment to Lease (the "First Amendment").
In addition, the Lease, as amended, provides for a Term which is
scheduled to expire on July 31, 1998. Landlord and Tenant desire to further
extend the Term of the Lease upon the terms contained in this First Amendment.
Landlord and Tenant are entering into this instrument to set forth said
agreements and to further amend the Lease.
NOW THEREFORE, in consideration of One Dollar ($1.00) and other good
and valuable consideration in hand this date paid by each of the parties to the
other, the receipt and sufficiency of which are hereby severally acknowledged,
and in further consideration of the mutual promises herein contained, Landlord
and Tenant, hereby agree to and with each other as follows:
1. As of the "New Premises Commencement Date" (as defined in Section 2
hereinbelow), the New Premises shall constitute the "Premises" demised
to Tenant under the Lease and the Initial Premises shall no longer be
deemed to be and shall be deleted and removed from the "Premises"
demised to Tenant under the Lease.
2. The following definitions are hereby added to Section 1.2 and the Lease
immediately after the definition of "Commencement Date":
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NEW PREMISES COMMENCEMENT DATE: The later to occur of (a) August
15, 1998 or (b) the earlier to
occur of (i) the date on which the
New Premises are "Substantially
Complete" as provided in Section 8
of this First Amendment, which day
shall in no event be less than five
(5) days subsequent to the date
Landlord gives Tenant notice
("Landlord's Completion Notice") of
the day Landlord expects the New
Premises to be Substantially
Complete or (ii) the date which
Tenant commences beneficial use of
the New Premises.
NEW PREMISES SCHEDULED TERM
COMMENCEMENT DATE: August 15, 1998.
3. On or prior to the New Premises Commencement Date, (or the "Carpet
Delivery Date" in the event of a "Carpet Delivery Delay" (as such terms
are defined in Section 9 hereinbelow)) Tenant shall quit and vacate the
Initial Premises and surrender the same in the condition required by
the Lease upon the expiration or earlier termination of the Lease Tenn.
4. The Lease Term, which but for this First Amendment is scheduled to
expire on July 31, 1998, is hereby extended for the period commencing
on August 1, 1998 and expiring on the date which is sixty (60) months
subsequent to the New Premises Commencement Date (plus the partial
month, if any, immediately following the New Premises Commencement
Date) (the "Second Extended Term") unless sooner terminated in
accordance with the provisions of the Lease as herein amended, such
extension to be upon all the same terms and conditions set forth in the
Lease except as otherwise provided in this First Amendment.
5. (A) For the period prior to July 1, 1998, Annual Fixed Rent at
the annual rate of $113,764.00 (being the product of (i) $28.00
and (ii) the Rentable Floor Area of the Initial Premises (being
4,063 square feet)) shall continue to be paid as provided in the
Lease.
(B) Notwithstanding the rental set forth in the Letter
Agreement, for the period from July 1, 1998 until the New
Premises Commencement Date, Annual Fixed Rent shall be payable
for the Initial Premises at the annual rate of $113,764.00
(being the product of (i) $28.00 and (ii) the Rentable Floor
Area of the Initial Premises).
(C) For the period from the New Premises Commencement Date
through July 31, 1999, Annual Fixed Rent for the New Premises
shall be payable at the annual rate of $290,763.00 (being the
product of (i) $33.00 and (ii) the Rentable Floor Area of the
New Premises (being 8,811 square feet)).
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54
(D) For the period from August 1, 1999 through July 31, 2000,
Annual Fixed Rent for the New Premises shall be payable at the
annual rate of $295,168.50 (being the product of (i) $33.50 and
(ii) the Rentable Floor Area of the New Premises).
(E) For the period from August 1, 2000 through July 31, 2001,
Annual Fixed Rent for the New Premises shall be payable at the
annual rate of $303,979.50 (being the product of (i) $34.50 and
(ii) the Rentable Floor Area of the New Premises).
(F) For the period from August 1, 2001 through July 31, 2002,
Annual Fixed Rent for the New Premises shall be payable at the
annual rate of $310,587.75 (being the product of (i) $35.25 and
(ii) the Rentable Floor Area of the New Premises).
(G) For the period from August 1, 2002 through the expiration of
the Second Extended Term, Annual Fixed Rent for the New Premises
shall be payable at the annual rate of $314,993.25 (being the
product of (i) $35.75 and (ii) the Rentable Floor Area of the
New Premises).
6. For the purposes of computing the "Tax Excess" (as defined in Section
6.2 of the Lease), the "Operating Cost Excess" (as defined in Section
7.5 of the Lease), and Tenant payments for electricity (as determined
pursuant to Sections 5.1, 5.2 and 7.5 of the Lease), for the portion of
the Lease Term on and after the New Premises Commencement Date, the
"Rentable Floor Area of the Premises" shall be 8,811 square feet. For
the portion of the Lease Term prior to the New Premises Commencement
Date, the rentable floor area of the Premises shall continue to be the
rentable floor area of the Initial Premises for such purposes.
7. (A) For the purposes of computing Tenant's payments for the "Operating
Cost Excess" (as defined in Section 7.5 of the Lease) for the portion
of the Lease Term on and after the New Premises Commencement Date, the
definition of "Base Operating Expenses" contained in Section 7.4 of the
Lease shall be deleted in its entirety and replaced with the following:
"Base Operating Expenses" means Landlord's Operating Expenses
(hereinafter defined) for calendar year 1998, being the period from
January 1, 1998 through December 31, 1998.
For the portion of the Lease Term prior to the New Premises Commencement Date,
such definition shall remain unchanged for such purposes.
(B) For the purposes of computing Tenant's payments for the "Tax
Excess" (as defined in Section 6.2 of the Lease) for the portion
of the Lease Term on and after the New Premise's Commencement
Date, the definition of "Base Taxes" contained in Section 6.1 of
the Lease shall be deleted in its entirety and replaced with the
following:
"Base Taxes" means Landlord's Tax Expenses (hereinbefore
defined) for calendar year 1998 (that is the second half of
fiscal tax year 1997 (being January 1, 1998 to June 30, 1998)
and the first
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55
half of fiscal tax year 1998 (being July 1, 1998 to December
31, 1998))
For the portion of the Lease Term prior to the New Premises Commencement Date,
such definition shall remain unchanged for such purposes.
8. (A) Landlord agrees to use due diligence to complete the work for
and respecting the New Premises described in Exhibit B
attached hereto by the New Premises Scheduled Term
Commencement Date, however, the failure of Landlord to
complete such work prior to any particular date shall not
entitle Tenant to any reduction or abatement of Annual Fixed
Rent or Additional Rent or the right to withhold or set off
against Annual Fixed Rent or Additional Rent nor give rise to
any right to terminate Lease or this First Amendment. Landlord
shall have no responsibility for the installation or
connection of Tenant's telephone or other communications
equipment or systems.
Landlord's completion of the work shown on Exhibit B shall be subject
to delays due to governmental regulation, unusual scarcity of or
inability to obtain labor or materials, labor difficulties, casualty or
other causes reasonably beyond Landlord's control ("Landlord's Force
Majeure"). The New Premises shall be "Substantially Complete" on the
date on which the work described in Exhibit B attached hereto together
with common facilities for access and service, has been completed
except for (i) items of work and adjustment of equipment and fixtures
which can be completed after occupancy thereof has been taken without
causing substantial interference with Tenant's use of the New Premises
(i.e. so-called "punch list" items) and (ii) items of work described in
Exhibit B for which there is a long lead time in obtaining the
materials therefor or which are specially or specifically manufactured,
produced or milled for the work in or to the New Premises and require
additional time for receipt or installation ("long lead" items).
Landlord shall use due diligence to complete all items and work
excepted above along with the work described in Exhibit C attached
hereto and Tenant shall not use the New Premises in such manner as will
increase the cost of completion. Landlord shall permit Tenant access
for installing furnishings in portions of the New Premises when it can
be done without material interference with construction of the work
described in Exhibit B. Landlord shall use diligent efforts to avoid or
minimize disruption to, or interference with, Tenant's use and
occupancy of the new Premises during completion of the work.
Landlord and Tenant acknowledge and agree that Tenant is ordering the
carpet for the New Premises described in Exhibit B and in the event
that such carpet has not been delivered to Landlord on or before August
11, 1998 (the "Carpet Delivery Delay"), Landlord shall not be required
to install the carpet and the electrical data floor mounted monument
style recepticals (the "Carpet Work") prior to the New Premises
Commencement Date and the definition of "Substantially Complete" shall
not be deemed to include completion of such work. In the event of a
Carpet Delivery Delay, Tenant shall be permitted to hold over in the
Initial Premises until the Carpet Work is Substantially Complete (the
"Carpet Work Completion Date") and during the period form the New
Premises Commencement Date through the Carpet Work Completion Date the
Lease shall remain in full force and effect with respect to the Initial
Premises and in
4
56
addition to Tenant's payments for Annual Fixed Rent, operating costs,
real estate taxes and electricity and all other amounts for the New
Premises as provided in this First Amendment, Tenant shall continue to
make payments for Annual Fixed Rent, operating costs, real estate taxes
and electricity and all other amounts payable under the Lease for the
Initial Premises as provided in the Lease prior to this First
Amendment.
Landlord and Tenant acknowledge that Landlord and Simon, Xxxxxx &
Partners, Strategy & Marketing Consultants, LLC ("Xxxxx Xxxxxx") are
endeavoring to execute a lease with respect to the Initial Premises. In
the event that Landlord and Xxxxx Xxxxxx have not executed a lease for
the Initial Premises as of the date on which the work described in
Exhibit B is Substantially Complete, Landlord shall promptly commence
and use due diligence to complete the work for and respecting the New
Premises described in Exhibit C attached hereto and the definition of
"Substantially Complete" shall be deemed to include the completion of
the work described in Exhibit C, including the Carpet Work, except for
punch list items and long lead items as defined hereinabove.
Landlord and Tenant acknowledge and agree that upon the expiration or
earlier termination of the Lease (i) Tenant shall not be required to
remove any of the additions, alterations or improvements described in
Exhibits B and C attached hereto and (ii) Tenant may remove the glass
modular petitions installed by Tenant in the New Premises provided that
Tenant restores the New Premises as required by the Lease.
(B) Landlord shall provide Tenant with a special allowance in the
amount of $88,110.00 to be applied towards the cost of the
work to be performed by Landlord in the New Premises upon
notice from Tenant given to Landlord. Tenant shall pay
Landlord, as Additional Rent, any cost of performing such work
in excess of said special allowance within thirty (30) days
after being billed therefor. In the event that the cost of any
such work is less than the special allowance, Tenant shall not
be entitled to any payment or credit nor shall there be any
application towards Annual Fixed Rent or Additional Rent or
other amounts owed by Tenant.
9. Landlord and Tenant acknowledge that Landlord is holding a security
deposit in the amount of $9,480.34 as provided in Section 1.2 of the
Lease. Upon the execution of this First Amendment by Tenant, Tenant
shall deposit with Landlord good funds in an amount equal to
$142,068.66 as additional security for the performance by Tenant of its
obligations under the Lease. The total security deposit in the amount
of $151,549.00 shall be held by Landlord in accordance with Section
17.26 of the Lease; provided, however, that upon the first day of the
thirty first (31st) month of the Second Extended Term, Landlord shall
return a portion of such deposit in the amount of $75,774.50, provided
that (i) there exists no Event of Default (as defined in Section 15.1
of the Lease) and (ii) no portion of said deposit has been applied to
Landlord's damages arising from any Event of Default on the part of
Tenant whether or not Tenant has restored the amount so applied by
Landlord.
10. In the event Tenant executes a Lease (the "New Lease") with Landlord or
any affiliate of Landlord for contiguous space in a building owned by
Landlord located within the
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57
Development Area, which has a rentable floor area greater than or equal
to 15,000 square feet, Landlord agrees to terminate the Lease as of the
commencement of the term of the New Lease (the "Early Termination
Date") and Tenant shall be relieved of all obligations under the Lease
subsequent to the date of such termination, provided however that any
such termination of the Lease shall be conditioned upon (i) Tenant
actually occupying the space demised under the New Lease (ii) Tenant
commencing rental payments under the New Lease (iii) there being no
"Event of Default" under the Lease and the New Lease (as defined in
Section 15.1 of both the Lease and the New Lease) as of the Early
Termination Date (iv) Tenant having paid all Annual Fixed Rent and
Additional Rent due under the Lease through the Early Termination Date
(v) Tenant having surrendered and vacated the Premises in the condition
required in the Lease upon the expiration or earlier termination of the
Lease Term and (vi) Tenant having paid to Landlord good funds in an
amount equal to (the "Applicable Termination Payment') (as defined
hereinbelow) as of the date of execution of the New Lease. The
"Applicable Termination Payment" shall be equal to the product of (a)
the "Fixed Monthly Amortization Amount" as defined hereinbelow and (b)
the number of months remaining and any fractions thereof in the Second
Extended Term as of the Early Termination Date if Tenant had not
exercised its right under this Section 10 to terminate this Lease. The
"Fixed Monthly Amortization Amount" shall equal the monthly payment on
a direct reduction loan basis amortized monthly where (i) the principal
amount is equal to the sum of (a) the amount of the special allowance
(referred to in Section 8(B) hereinabove) utilized by Tenant and (b)
the brokerage commission in the amount of $35,244.00 payable to CB
Commercial/Whittier Partners in connection with the consummation of
this First Amendment, (collectively the "Transaction Costs") (ii) the
term is sixty (60) calendar months and (iii) the monthly interest rate
is 0.8333%. For example, if Tenant utilizes the full work allowance,
the amount of the Transaction Costs will be $123,354.00 and if Tenant
elected an Early Termination Date which is twenty (20) months prior to
the expiration of the Term then the Applicable Termination Payment
would be $48,098.95, being a principal amount of $123,354.00 amortized
monthly over sixty (60) months at a monthly interest rate of 0.8333%.
Notwithstanding the foregoing provisions of this Section 10, Landlord
shall not be under any obligation to enter into a New Lease with Tenant
and any New Lease shall be upon terms and conditions satisfactory to
both Landlord and Tenant; provided, however, that if Landlord and
Tenant do not execute a New Lease for whatever reason this Lease shall
remain in full force and effect.
11. Landlord shall provide to Tenant monthly parking privileges in one or
more of the Garages in a number not to exceed parking for two (2)
passenger automobiles for each 1,000 square feet of Rentable Floor Area
of the New Premises in accordance with the terms of Article X of the
Lease. Prior to the New Premises Commencement Date, Tenant shall notify
Landlord of the number of parking spaces which Tenant desires to be
made available in the Garage(s) for its use as of the New Premises
Commencement Date. Landlord and Tenant acknowledge that Tenant's
parking privileges with respect to the New Premises are in lieu of
those parking privileges provided with respect to the Initial Premises
and that the total number of spaces elected by Tenant shall not exceed
two (2) spaces for each 1,000 square feet of Rentable Floor Area of the
New Premises.
12. Article MI of the Lease is hereby deleted in its entirety and replaced
with the following:
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58
12.1 RESTRICTIONS ON TRANSFER. Except as otherwise expressly provided
herein, Tenant covenants and agrees that it shall not assign, mortgage,
pledge, hypothecate or otherwise transfer this Lease and/or Tenant's
interest in this Lease or sublet (which term, without limitation, shall
include granting of concessions, licenses or the like) the whole or any
part of the Premises. Any assignment, mortgage, pledge, hypothecation,
transfer or subletting not expressly permitted in or consented to by
Landlord under this Article XII shall be void, ab initio; shall be of
no force and effect; and shall confer no rights on or in favor of third
parties. In addition, Landlord shall be entitled to seek specific
performance of or other equitable relief with respect to the provisions
hereof.
12.2 EXCEPTIONS FOR PARENT OR SUBSIDIARY. Notwithstanding the foregoing
provisions of Section 12.1 above and the provisions of Section 12.4
below, but subject to the provisions of Sections 12.5, 12.6 and 12.7
below, Tenant shall have the right to assign this Lease or to sublet
the Premises (in whole or in part) to (i) any entity that controls, is
controlled by or is under common control with Tenant, (ii) any entity
which acquires substantially all of the assets of Tenant or (iii) any
corporation into which Tenant may be converted or with which it may
merge, provided that the entity to which this Lease is so assigned or
which so sublets the Premises has a credit worthiness (e.g. assets on a
pro forma basis using generally accepted accounting principles
consistently applied and using the most recent financial statements)
which is the same or better than the Tenant as of the Date of this
Lease.
12.3 LANDLORD'S TERMINATION RIGHT. Notwithstanding the provisions of Section
12.1 above, in the event Tenant desires to assign this Lease or to
sublet the whole or part or part of the Premises, Tenant shall notify
Landlord thereof in writing and Landlord shall have the right at its
sole option, to be exercised within thirty (30) days after receipt of
Tenants notice, to terminate this Lease as of a date specified in a
notice to Tenant, which date shall not be earlier than sixty (60) days
nor later than one hundred and twenty (120) days after Landlord's
notice to Tenant; provided, however, that upon the termination date as
set forth in Landlord's notice, all obligations relating to the period
after such termination date (but not those relating to the period
before such termination date) shall cease and promptly upon being
billed therefor by Landlord, Tenant shall make final payment of all
rent and additional rent due from Tenant through the termination date.
In the event that Landlord shall not exercise its termination rights as
aforesaid, or shall fail to give any or timely notice pursuant to this
Section the provisions of Sections 12.4-12.7 shall be applicable. This
Section 12.3 shall not be applicable to an assignment or sublease
pursuant to Section 12.2.
12.4 CONSENT OF LANDLORD. Notwithstanding the provisions of Section 12.1
above, but subject to the provisions of this Section 12.4 and the
provisions of Sections 12.5, 12.6 and 12.7 below, in the event that
Landlord shall not have exercised the termination right as set forth in
Section 12.3, or shall have failed to give any or timely notice under
Section 12.3, then for a period of ninety (90) days (i) after the
receipt of Landlord's notice stating that Landlord does not elect the
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termination right, or (ii) after the expiration of the thirty (30) day
period referred to in Section 12.3, in the event Landlord shall not
give any or timely notice under Section 12.3 as the case may be, Tenant
shall have the right to assign this Lease or sublet the whole (but not
part) of the Premises in accordance with Tenants notice to Landlord
given as provided in Section 12.5 provided that, in each instance,
Tenant first obtains the express prior written consent of Landlord,
which consent shall not be unreasonably withheld or delayed. Landlord
shall not be deemed to be unreasonably withholding its consent to such
a proposed assignment or subleasing if:
(a) the proposed assignee or subtenant is not of a character
consistent with the operation of a first class office building
(by way of example Landlord shall not be deemed to be
unreasonably withholding its consent to an assignment or
subleasing to any governmental agency), or
(b) the proposed assignee or subtenant is not of good character
and reputation, or
(c) the proposed assignee or subtenant does not possess adequate
financial capability to perform the Tenant obligations as and
when due or required, or
(d) the assignee or subtenant proposes to use the Premises (or
part thereof) for a purpose other than the purpose for which
the Premises may be used as stated in Section 1.2 hereof, or
(e) the character of the business to be conducted or the proposed
use of the Premises by the proposed subtenant or assignee
shall (i) be likely to increase Operating Expenses for the
Property beyond that which Landlord now incurs for use by
Tenant; (ii) be likely to increase the burden on elevators or
other Building systems or equipment over the burden prior to
such proposed subletting or assignment; or (iii) violate or be
likely to violate any provisions or restrictions contained
herein relating to the use or occupancy of the Premises, or
(f) there shall be existing an Event of Default (defined in
Section 15.1).
12.5 TENANTS NOTICE. Tenant shall give Landlord notice of any proposed
sublease or assignment, and said notice shall specify the provisions of
the proposed assignment or subletting, including (a) the name and
address of the proposed assignee or subtenant, (b) in the case of a
proposed assignment or subletting pursuant to Section 12.4, such
information as to the proposed assignee's or proposed subtenant's net
worth and financial capability and standing as may reasonably be
required for Landlord to make the determination referred to in Section
12.4 above (provided, however, that Landlord shall hold such
information confidential having the right to release same to its
officers, accountants, attorneys and mortgage lenders on a confidential
basis), (c) all of the
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terms and provisions upon which the proposed assignment or subletting
is to be made, (d) in the case of a proposed assignment or subletting
pursuant to Section 12.4, all other information necessary to make the
determination referred to in Section 12.4 above and (e) in the case of
a proposed assignment or subletting pursuant to Section 12.2 above,
such information as may be reasonably required by Landlord to determine
that such proposed assignment or subletting complies with the
requirements of said Section 12.2.
If Landlord shall consent to the proposed assignment or subletting, as
the case may be then, in such event, Tenant may thereafter sublease
(the whole or part of the Premises) or assign pursuant to Tenants
notice, as given hereunder; provided, however, that if such assignment
or sublease shall not be executed and delivered to Landlord within
ninety (90) days after the date of Landlord's consent the consent shall
be deemed null and void and the provisions of Section 12.3 shall be
applicable.
12.6 PROFIT ON SUBLEASING OR ASSIGNMENT. In addition, in the case of any
assignment or subleasing as to which Landlord may consent (other than
an assignment or subletting permitted under Section 12.2 hereof) such
consent shall be upon the express and further condition, covenant and
agreement, and Tenant hereby covenants and agrees that, in addition to
the Annual Fixed Rent, Additional Rent and other charges to be paid
pursuant to this Lease, fifty percent (50%) of the "Assignment/Sublease
Profits" (hereinafter defined), if any shall be paid to Landlord.
The "Assignment/Sublease Profits" shall be the excess, if any, of (a)
the "Assignment/Sublease Net Revenues" as hereinafter defined over (b)
the Annual Fixed Rent, Additional Rent and other charges provided in
this Lease (provided, however, that for the purpose of calculating the
Assignment/Sublease Profits in the case of a sublease, appropriate
proportions in the applicable Annual Fixed Rent, Additional Rent and
other charges under this Lease shall be made based on the percentage of
the Premises subleased and on the terms of the sublease). The
"Assignment/Sublease Net Revenues" shall be the fixed rent, Additional
Rent and all other charges and sums payable either initially or over
the term of the sublease or assignment plus all other profits and
increases to be derived by Tenant as a result of such subletting or
assignment, less the reasonable costs of Tenant incurred in such
subleasing or assignment (the definition of which shall include but not
necessarily be limited to rent concessions, brokerage commissions,
reasonable legal fees and alteration allowances) amortized over the
term of the sublease or assignment.
All payments of the Assignment/Sublease Profits due Landlord shall be
made within ten (10) days of receipt of same by Tenant.
12.7 ADDITIONAL CONDITIONS. (A) It shall be a condition of the validity of
any assignment or subletting of right under Section 12.2 above, or
consented to under Section 12.4 above, that both Tenant and the
assignee or sublessee agree directly
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with Landlord in a separate written instrument reasonably satisfactory
to Landlord which contains terms and provisions reasonably required by
Landlord, including, without limitation, the agreement of the assignee
or sublessee to be bound by all the obligations of the Tenant
hereunder, including, without limitation, the obligation to pay the
Annual Fixed Rent, Additional Rent, and other amounts provided for
under this Lease (but in the case of a partial subletting, such
subtenant shall agree on a pro rata basis to be so bound) including the
provisions of Sections 12.1 through 12.7 hereof, but such assignment or
subletting shall not relieve the Tenant named herein of any of the
obligations of the Tenant hereunder, Tenant shall remain fully and
primarily liable therefor and the liability of Tenant and such assignee
(or subtenant, as the case may be) shall be joint and several. Further,
and notwithstanding the foregoing, the provisions hereof shall not
constitute a recognition of the assignment or the assignee thereunder
or the sublease or the subtenant thereunder, as the case may be, and at
Landlord's option, upon the termination of the Lease, the assignment or
sublease shall be terminated.
(B) As Additional Rent, Tenant shall reimburse Landlord promptly
for reasonable out of pocket legal and other expenses incurred
by Landlord in connection with any request by Tenant for
consent to assignment or subletting.
(C) If this Lease be assigned, or if the Premises or any part
thereof be sublet or occupied by anyone other than Tenant,
Landlord may upon prior notice to Tenant, at any time and from
time to time, collect Annual Fixed Rent, Additional Rent, and
other charges from the assignee, sublessee or occupant and
apply the net amount collected to the Annual Fixed Rent,
Additional Rent and other charges herein reserved, but no such
assignment, subletting, occupancy or collection shall be
deemed a waiver of this covenant, or a waiver of the
provisions of Sections 12.1 through 12.7 hereof, or the
acceptance of the assignee, sublessee or occupant as a tenant
or a release of Tenant from the further performance by Tenant
of covenants on the part of Tenant herein contained, the
Tenant herein named to remain primarily liable under this
Lease.
(D) The consent by Landlord to an assignment or subletting under
any of the provisions of Sections 12.2 or 12.4 shall in no
wise be construed to relieve Tenant from obtaining the express
consent in writing of Landlord to any further assignment or
subletting.
(E) In addition to the other requirements set forth in this Lease
and notwithstanding any other provision of this Lease, partial
sublettings of the Premises shall only be permitted under the
following terms and conditions: (i) the layout of both the
subleased premises and the remainder of the Premises must
comply with applicable laws, ordinances, rules and/or
regulations and be approved by Landlord, including, without
limitation, all requirements concerning access and egress;
(ii), in the event
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the subleased premises are separately physically demised from
the remainder of the Premises, Tenant shall pay all costs of
separately physically demising the subleased premises; and
(iii) Tenant, at Landlord's option, shall restore the Premises
and the subleased premises to their original condition upon
the expiration or earlier termination of this Lease.
13. (A) Tenant warrants and represents that Tenant has not dealt
with any broker in connection with the consummation of this
First Amendment other than CB Commercial/Whittier Partners
CCB/Whittier); and in the event any claim is made against
Landlord relative to dealings by Tenant with brokers other
than CB/Whittier, Tenant shall defend the claim against
Landlord with counsel of Tenant's selection first approved by
Landlord (which approval will not be unreasonably withheld)
and save harmless and indemnify Landlord on account of loss,
cost or damage which may arise by reason of such claim.
(B) Landlord warrants and represents that Landlord has not
dealt with any broker in connection with the consummation of
this First Amendment other than CB/Whittier and in the event
any claim is made against Tenant relative to dealings by
Landlord with brokers, Landlord shall defend the claim against
Tenant with counsel of Landlord's selection and save harmless
and indemnify Tenant on account of loss, cost or damage which
may arise by reason of such claim.
14. Except as otherwise expressly provided herein, all capitalized terms
used herein without definition shall have the same meanings as are set
forth in the Lease.
15. Except as herein amended the Lease shall remain unchanged and in full
force and effect. All references to the "Lease" shall be deemed to be
references to the Lease as amended by the Letter Agreement and as
herein amended.
EXECUTED as a sealed instrument as of the date and year first above
written.
WITNESSES: LANDLORD:
/s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------- ---------------------------------------
XXXXXXX X. XXXXXXXXX, FOR THE
TRUSTEES OF ONE CAMBRIDGE
CENTER TRUST PURSUANT TO
WRITTEN DELEGATION, BUT NOT
INDIVIDUALLY
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ATTEST: TENANT:
By: /s/ Xxxxx Xxxxx THE MEDICINES COMPANY
----------------------------------
Name: Xxxxx Xxxxx
--------------------------------
Title: Business Manager By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------- ------------------------------------
Name: Xxxxxx X. Xxxxxxxx
----------------------------------
Title: Vice President, Treasurer
---------------------------------
HERETO DULY AUTHORIZED
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
HERETO DULY AUTHORIZED
(CORPORATE SEAL)
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