EXHIBIT 10.4
LEASE EXTENSION AGREEMENT
DATED: DECEMBER 1, 2000
MASSACHUSETTS INSTITUTE OF TECHNOLOGY, LESSOR
MILLENNIUM PHARMACEUTICALS, INC., LESSEE
000 XXXXXXXX XXXXX, XXXXXXXXX, XXXXXXXXXXXXX
TABLE OF CONTENTS
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1.0 PARTIES AND PREMISES............................................ 1
1.1 PARTIES AND PREMISES................................... 1
1.2 BASEMENT SPACE......................................... 2
1.3 COMMON AREAS........................................... 3
1.4 RIGHT OF FIRST OFFER................................... 3
2.0 TERM............................................................ 5
2.1 TERM; COMMENCEMENT DATE................................ 5
2.2 EXTENSION OPTION....................................... 5
3.0 RENT............................................................ 5
3.1 PAYMENT OF RENT........................................ 5
3.2 DETERMINATION OF FAIR MARKET RENT...................... 6
4.0 PERMITTED USES................................................... 8
5.0 TAXES; OPERATING EXPENSES........................................ 8
5.1 TAXES................................................... 8
5.2 OPERATING EXPENSES...................................... 8
5.3 PAYMENT OF TAXES AND OPERATING EXPENSES................ 10
5.4 ABATEMENT OF TAXES..................................... 11
6.0 ELECTRIC SERVICE................................................ 11
7.0 INSURANCE....................................................... 12
7.1 PUBLIC LIABILITY INSURANCE............................. 12
7.2 CASUALTY INSURANCE..................................... 12
7.3 CERTIFICATE OF INSURANCE............................... 12
7.4 LESSOR'S INSURANCE..................................... 13
7.5 WAIVER OF SUBROGATION........................................... 13
7.6 WAIVER OF RIGHTS................................................ 13
8.0 ASSIGNMENT AND SUBLETTING....................................... 14
9.0 PARKING......................................................... 16
9.1 ON-SITE PARKING SPACES...........................................16
9.2 OFF-SITE PARKING SPACES..........................................16
9.3 ADDITIONAL RENT FOR PARKING SPACES...............................17
10.0 LATE PAYMENT OF RENT............................................ 17
11.0 LESSEE'S COVENANTS.............................................. 17
12.0 Intentionally Omitted............................................22
13.0 CASUALTY AND EMINENT DOMAIN..................................... 22
13.1 SUBSTANTIAL TAKING..................................... 22
13.2 PARTIAL TAKING......................................... 23
13.3 AWARDS................................................. 23
13.4 SUBSTANTIAL CASUALTY................................... 23
13.5 REPAIR AND RESTORATION................................. 23
13.6 CASUALTY DURING LAST 18 MONTHS......................... 24
14.0 DEFAULTS; EVENTS OF DEFAULT; REMEDIES........................... 25
14.1 DEFAULTS; EVENTS OF DEFAULT............................ 25
14.2 TERMINATION............................................ 26
14.3 SURVIVAL OF COVENANTS.................................. 26
14.4 DAMAGES................................................ 26
14.5 RIGHT TO RELET......................................... 27
14.6 RIGHT TO EQUITABLE RELIEF.............................. 27
14.7 RIGHT TO SELF HELP..................................... 28
14.8 FURTHER REMEDIES....................................... 28
15.0 REAL ESTATE BROKER.............................................. 28
16.0 NOTICES......................................................... 28
17.0 NO WAIVERS...................................................... 29
18.0 SERVICES PROVIDED BY LESSOR..................................... 29
19.0 GROUND LEASES; MORTGAGES........................................ 30
19.1 RIGHTS OF GROUND LESSORS AND MORTGAGEES................ 30
19.2 LEASE SUBORDINATE...................................... 30
20.0 NOTICE OF LEASE; ESTOPPEL CERTIFICATES.......................... 30
21.0 HOLDING OVER.................................................... 31
22.0 FORCE MAJEURE................................................... 31
23.0 ENTIRE AGREEMENT................................................ 31
24.0 SECURITY DEPOSIT................................................ 31
25.0 SATELLITE DISH...................................................32
26.0 EXISTING LEASE.................................................. 33
27.0 SUCCESSORS AND ASSIGNS.......................................... 33
28.0 APPLICABLE LAW, SEVERABILITY AND CONSTRUCTION................... 33
29.0 AUTHORITY....................................................... 33
EXHIBIT A: Plan of the Premises
EXHIBIT B: Plan of the Land
EXHIBIT C: Items Designated for Removal
EXHIBIT D: Lessor's Services
EXHIBIT E: Lessee's Services
EXHIBIT F Copy of Lessor's Certificate of Title
EXHIBIT G: Location of Off Site Parking Spaces
EXHIBIT H: Tenant Standards
LEASE EXTENSION AGREEMENT
Dated December 1, 2000
This lease extension agreement (hereinafter this "Lease") is made
between MASSACHUSETTS INSTITUTE OF TECHNOLOGY, a Massachusetts educational
corporation with an xxxxxx xx Xxxxx 000, 000 Xxxx Xxxxxx Xxxxxxxxx, XX 00000
("Lessor") and MILLENNIUM PHARMACEUTICALS, INC., a Delaware corporation with it
principal office at 00 Xxxxxx Xxxxxx, Xxxxxxxxx, XX 00000 ("Lessee").
WHEREAS, Lessor and Lessee are the parties to an existing lease
agreement of the Premises (as defined below) dated August 26, 1993 which has
been previously amended by a number of amendments (said lease agreement as so
amended is hereafter referred to as the "Existing Lease"), and
WHEREAS, the Existing Lease is scheduled to expire on December 31,
2003, subject to the right of the Lessee to extend the term for two additional
periods of five years each on terms and conditions set forth therein, and
WHEREAS, Lessor and Lessee have agreed to extend the term of the
Existing Lease for an additional term of five years and preserve a further five
year extension option on the terms and conditions set forth below; and
WHEREAS, the terms and conditions set forth below are intended to vary
and supersede the provisions of Existing Lease with respect to the Term of this
Lease as described in Section 2.0 below and to incorporate certain provisions of
the amendments to the Existing Lease into a single document to govern the
relationship of the parties during such Term,
NOW THEREFORE, the parties hereby agree as follows:
1.0 PARTIES AND PREMISES.
1.1 PARTIES AND PREMISES. MASSACHUSETTS INSTITUTE OF TECHNOLOGY
("Lessor") hereby LEASES unto MILLENNIUM PHARMACEUTICALS, INC.
("Lessee"), the following premises:
Approximately 159,995 square feet of rentable area
consisting of the entire first, second, third and
fifth floors and the eastern portion of the fourth
floor, shown as the cross-hatched area on EXHIBIT A
attached hereto (the "Premises"), in the building
known as and numbered 000 Xxxxxxxx Xxxxx,
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Xxxxxxxxx, Xxxxxxxxxxxxx, containing a total of
182,124 rentable square feet (the "Building"), which
is located on the parcel of land shown on EXHIBIT B
attached hereto (the "Land"),
together with the benefit of, and subject to (as the case may
be) all rights, easements, covenants, conditions,
encumbrances, encroachments and restrictions of record as of
the date of this Lease, which matters are set forth on the
copy of Lessor's Certificate of Title to the Land attached
hereto as EXHIBIT F (the "Permitted Encumbrances"), which
Permitted Encumbrances shall not materially affect Lessee's
use or occupancy of the Premises for the "Permitted Uses"
hereunder (as defined in Section 4.0 below). Lessor shall have
the right, without the necessity of obtaining Lessee's consent
thereto or joinder therein, to grant, permit, or enter into
during the term of this Lease such additional rights,
easements, covenants, conditions, encumbrances, encroachments
and restrictions with respect to the Land as Lessor may deem
appropriate, PROVIDED THAT no such rights, easements,
covenants, conditions, encumbrances, encroachments or
restrictions shall materially affect Lessee's use of the
Premises for the "Permitted Uses" (as defined in Section 4.0
below).
Lessor hereby reserves the right to maintain, use, repair and
replace pipes, ducts, wires, meters and any other equipment,
machinery, apparatus and fixtures located within the Premises
and serving other parts of the Building. Lessee, its employees
and invitees shall have access to the Premises at all times,
subject to the provisions of Section 11.0(h) below.
1.2 BASEMENT SPACE. Lessee hereby leases 21,027 square feet in the
basement of the Building, (the "Basement Space"). Lessee shall
pay on account of the Basement Space "Basement Rent" in the
amount of $18.00 per square foot per Lease Year, such amount
to be paid in advance in equal monthly installments in the
same manner and at the same times as "Basic Rent" (as defined
in Section 3.1 below). Except as otherwise expressly stated in
this Lease, the Basement Space shall be deemed to be part of
the Premises for all purposes of this Lease, and all rights
and obligations of the parties hereunder with respect to the
Premises shall apply equally to the Basement Space.
Notwithstanding the foregoing, (i) the area of the Basement
Space shall not be included (a) in the rentable area of the
Premises for determining "Lessee's Share" pursuant to Section
5.1 below, or (b) in determining the number of parking spaces
to which Lessee is entitled under Section 9.0 below; (ii) the
Basement Space shall not be included in the Premises for
purposes of Section 13.0 below.
The Basement Space shall be used solely for an animal storage
facility and for general storage by Lessee, and for no other
use. Lessor makes no representation or warranty of any type
concerning the permissibility of such use under applicable
Legal Requirements or the suitability of the Basement Space
for such use. In addition to, but not in limitation of, the
provisions of the Lease relating to Lessee's
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use of the Premises, Lessee hereby agrees to comply with all
Legal Requirements applicable to Lessee's use of the Basement
Space and not to permit the emission of any objectionable
noise or odors from the Basement Space.
No animals, animal waste, food or supplies relating to the
animals maintained from time to time in the Basement Space
shall be transported within the Building except as provided in
this Paragraph. Use of the freight elevator for the
transportation of animals, animal waste, food or supplies
between the Basement Space and Lessee's Premises on the upper
floors of the Building, shall be conducted in a manner which
does not unreasonably interfere with the use of the elevator
by any other tenants of the Building. All deliveries of
animals to Lessee at the Building shall occur after Building
operating hours. At all times that animals are transported on
the Land or within the Building, they shall be transported in
an appropriate cage or other container. At no time shall any
animals, animal waste, food or supplies relating to the
animals be brought into, transported through, or delivered to
the lobby of the Building.
Notwithstanding anything to the contrary elsewhere in this
Lease, Lessor is not providing any services to the Basement
Space. Lessee shall make its own arrangements for the cleaning
of such space as well as the provision of electricity, water,
gas, HVAC and any other utility or service. Electricity, water
and gas consumption in the Basement Space shall be separately
metered. Lessee shall pay all charges therefor directly to the
company which provides such service.
1.3 COMMON AREAS. Lessor also grants to Lessee, and Lessee's
invitees, the right, in common with others entitled thereto,
to use for the purposes for which they were designed, the
common facilities of the Building, including but not limited
to, all entrances, hallways, elevator foyers, air shafts,
elevator shafts and elevators, stairwells and stairs,
restrooms, passenger elevators, freight elevator, loading
bays, conference center and the "On-Site Parking Area" (as
defined in Section 9.0 below) (collectively, the "Common
Areas"). Landlord hereby reserves the right to close the
cafeteria in the Building at any time that Lessor, in its sole
discretion, determines that there is insufficient usage of the
cafeteria to justify its continued operation.
1.4 RIGHT OF FIRST OFFER. In the event that at any time during the
Term Lessor commences to market for lease any space on the
fourth floor of the Building which is not part of the Premises
as shown on EXHIBIT A attached hereto, Lessor shall notify
Lessee. Lessor's notice hereunder shall contain Lessor's good
faith determination of Fair Market Rent. Provided that (i) an
"Event of Default" (as defined in Section 14.1 below) is not
continuing as of the day on which Lessor gives such notice,
and (ii) the Lessee named herein or a Lessee Affiliate (as
defined in Section 8.0(i)) is then actually occupying sixty
percent (60%) of the entire Premises, Lessee shall have the
right (the "Right of First Offer") to lease the portion of the
fourth floor set forth in Lessor's notice for a term
commencing on the date on which Lessor delivers possession
thereof to Lessee, and ending on the last day of the Term,
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by giving written notice of exercise to Lessor within twenty
(20) days of receipt of Lessor's notice; provided that, if at
any time during the first year after Lessee takes occupancy of
the space described in Lessor's notice, Lessee or a Lessee
Affiliate is not actually occupying such space in its
entirety, then if Lessor so elects, this Lease shall be deemed
to be amended as of the date on which Lessor sends notice
thereof to Lessee so as to delete such space from the Premises
for purposes of this Lease (with a commensurate adjustment in
Rent and Lessee's Share) for the remainder of the Term.
If Lessee exercises its right under this Section 1.4 to lease
such space, then such space shall become subject to all of the
terms of this Lease EXCEPT that Basic Rent therefor shall be
due and payable in an amount equal to the "Fair Market Rent"
therefor as of the date on which Lessor reasonably anticipates
delivering possession of the space to Lessee. "Fair Market
Rent" shall be determined in the manner provided in Section
3.2 of this Lease for the Extension Term; provided that unless
Lessee's notice of acceptance elects to determine Fair Market
Rent by appraisal as set forth in Section 3.2, Lessee shall be
deemed to have agreed to Lessor's good faith determination of
Fair Market Rent as set forth in Lessor's notice. In the event
that Lessee, for any reason whatsoever, fails to give such
notice to Lessor within such 20-day period, Lessee shall be
deemed to have waived its rights under this Section 1.4 with
respect to the space described in Lessor's notice for the
remainder of the Term.
Any space which is subjected to the terms of this Lease
pursuant to this Section 1.4 shall be delivered broom clean
but otherwise in the condition in which it is redelivered to
Lessor. Lessor shall have no obligation to perform any
preparatory work in such space in anticipation of Lessee's use
thereof or to provide any allowance to Lessee towards the
preparation thereof. All work performed by Lessee in such
space shall be subject to the provisions of Section 11.0(f)
below. Basic Rent shall be due and payable on account of such
space commencing on the day on which Lessor delivers
possession thereof to Lessee.
Lessor shall use reasonable diligence to regain possession of
any space with respect to which Lessee has exercised the Right
of First Offer herein contained, but Lessor shall not be
responsible for any delay by any occupant in vacating such
space. Effective upon the date on which Lessor delivers
possession to Lessee of any space which is subjected to the
terms of this Lease pursuant to this Section 1.4, such space
shall be deemed to be part of the Premises for all purposes of
this Lease except that Basic Rent therefor shall be computed
as hereinabove provided, and "Lessee's Share" (as defined in
Section 5.1 below) shall be appropriately modified.
The extension or renewal of the lease of an initial occupant
of space on the fourth floor of the Building shall serve to
defer Lessee's Right of First Offer with respect to such
space.
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2.0. TERM.
2.1. COMMENCEMENT DATE. The initial term of this lease (the "Initial
Term") shall commence January 1, 2004 (the "Commencement Date") and
expire on the day immediately preceding the fifth (5th) anniversary
thereof, unless sooner terminated as hereinafter provided. For purposes
of this Lease, the phrase "Term" shall mean collectively (a) the
Initial Term, and (b) if Lessee duly exercises the "Extension Option",
the "Extension Term" (as these phrases are defined in Section 2.2
below).
2.2. EXTENSION OPTION. Provided that both (i) an "Event of Default"
(as defined in Section 14.1 below) is not outstanding on
the day on which Lessee purports to exercise the Extension
Option or prior to the first day of the Extension Term,
and (ii) the Lessee named herein and any Lessee Affiliates (as
defined in Section 8.0(i)) are actually occupying at least 60% of
the Rentable Area of the Premises as of each of said dates,
Lessee shall have the option ("Extension Option") to extend the
Term of this Lease for one additional period of five (5) Lease
Years (the "Extension Term"), unless sooner terminated as
hereinafter provided, subject to all the terms of this Lease
except for the change in Basic Rent as provided in Section 3.1 of
this Lease. Lessee may exercise the Extension Option by giving
written notice of exercise to Lessor not earlier than fifteen
(15) months prior to, nor later than twelve (12) months prior to,
the last day of the Initial Term. If Lessee fails to give such
notice to Lessor within such time, Lessee shall be deemed to have
waived the right to exercise the Extension Option.
3.0 RENT.
3.1 PAYMENT OF RENT Lessee shall pay Lessor, without offset or
deduction and without previous demand therefor, as items
constituting rent (collectively, "Rent"):
(a) Basic Rent, at the following rates, in equal monthly
installments, in advance, commencing on the
Commencement Date and continuing thereafter on the
first day of each calendar month or portion thereof
during the Term:
(i) For the Initial Term Basic Rent shall be
determined as follows. First, the parties
shall determine the Fair Market Rent for the
Premises in the manner set forth in Section
3.2; provided that, solely for the purpose of
determining Basic Rent for the Initial Term
under this subparagraph (i), such amount shall
not exceed $45.00 per square foot or be less
than $39.00 per square foot. Basic Rent for
the Initial Term shall be 93% of the amount so
determined increased by $.63 per rentable
square foot. For example, if Fair Market Rent
for the Initial Term is determined to be $40
per square foot, Basic Rent will be ($40 x
.93) +$.63 = $37.83 per square foot.
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(ii) During the Extension Term, an amount equal to
ninety three percent (93%) of the Fair Market
Rent of the Premises as of the first day of
the Extension Term, but in no event less than
the Basic Rent payable by Lessee hereunder for
the last Lease Year preceding the commencement
of such Extension Term.
As used in this Lease, "Lease Year" means the twelve
(12) month period commencing on the Commencement Date,
or a successive twelve (12) month period included in
the Term commencing on an anniversary of that day, but
if the expiration of the Term or the earlier
termination of the Lease does not coincide with the
termination of such a twelve (12) month period, the
term "Lease Year" shall mean the portion of such twelve
(12) month period before such expiration or
termination.
(b) All Basement Rent and other costs, charges, or expenses
which Lessee in this Lease agrees to pay, or which
Lessor pays or incurs as the result of a default by
Lessee hereunder, including any penalty or interest
which may be added for nonpayment or late payment
thereof as provided in this Lease (collectively,
"Additional Rent"). All recurring payments of
Additional Rent, such as payment on account of Basement
Rent, "Taxes" and "Operating Expenses" (as these terms
are hereinafter defined), shall be due and payable on
the same day on which Basic Rent is due. Unless
otherwise specifically provided in this Lease, all
non-recurring items constituting Additional Rent shall
be due and payable within ten (10) days after written
demand therefor by Lessor.
Basic Rent and Additional Rent shall be PRO-RATED for partial
months occurring at the beginning or the end of the Term.
All payments shall be made to Lessor or such agent, and at
such place, as Lessor shall, from time to time, in writing
designate, the following being now so designated:
Xxxxxxxx & Grew, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Attention: Xxxx Xxxxxxxx
3.2 DETERMINATION OF FAIR MARKET RENT. As used in this Lease,
"Fair Market Rent" means the effective fair market rent for
the Premises or space being leased by Lessee pursuant to
Section 1.4 above, as the case may be, in its "as is"
condition, including those portions of "Lessee's Work" (as
defined below) and "Alterations" (as defined in Section
11.0(f) below) which Lessee is not permitted or required
hereunder to remove at the expiration or earlier termination
of this Lease, but exclusive of the Basement Space, as of the
day with respect to which such
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determination is being made, for a term of five (5) years
(or, in connection with Section 1.4 above, for a term equal
to the then-remaining Term of this Lease or five (5) years,
as the case may be). Fair Market Rent shall be based upon
the rents generally in effect for similar premises for
research laboratory/research and development uses in similar
buildings in the Cambridge, Massachusetts area in which the
Premises is located, adjusted to a "net" lease basis. As
used herein the term "Lessee's Work" shall mean all
improvements, alterations and additions made to the Premises
by Lessee as part of the initial preparation thereof for
Lessee's occupancy
Not earlier than July 1, 2002 or later than October 1, 2002
Lessor shall provide to Lessee Lessor's good faith
determination of Fair Market Rent. If Lessor and Lessee are
unable to agree on the Fair Market Rent within twenty (20)
days thereafter, then Lessor and Lessee shall, not later than
sixty (60) days after Lessor receives Lessee's notice of
exercise, each retain a real estate professional with at least
ten (10) years' continuous experience in the business of
appraising or marketing commercial real estate in the
Cambridge, Massachusetts vicinity, who shall, within thirty
(30) days of his or her selection, prepare a written report
summarizing his or her conclusion as to Fair Market Rent.
Lessor and Lessee shall simultaneously exchange such reports;
PROVIDED, HOWEVER, that if one party has not obtained such a
report within one hundred (100) days after Lessor receives
Lessee's notice of exercise, then the determination set forth
in the other party's report shall be final and binding upon
the parties. If both parties receive reports within such time
and the lesser of the two determinations is within ten (10%)
percent of the higher determination, then the average of these
determinations shall be deemed to be Fair Market Rent. If
these determinations differ by more than ten (10%) percent,
then Lessor and Lessee shall mutually select a person with the
qualifications stated above (the "Final Professional") to
resolve the dispute as to Fair Market Rent. If Lessor and
Lessee cannot agree upon the designation of the Final
Professional within thirty (30) days of the exchange of the
first valuation reports, either party may apply to the
American Arbitration Association, the Greater Boston Real
Estate Board, or any successor thereto for the designation of
a Final Professional. Within ten (10) days of the selection of
the Final Professional, Lessor and Lessee shall each submit to
the Final Professional a copy of their respective real estate
professional's determination of Fair Market Rent. The Final
Professional shall not perform his or her own valuation but
rather shall, within thirty (30) days after such submissions,
select the submission which is closest to the determination of
Fair Market Rent which the Final Professional would have made
acting alone. The Final Professional shall give notice of his
or her selection to Lessor and Lessee and such decision shall
be final and binding upon Lessor and Lessee. Each party shall
pay the fees and expenses of its real estate professional and
counsel, if any, in connection with any proceeding under this
paragraph, and the losing party shall pay the fees and
expenses of the Final Professional.
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If Lessee exercises its Extension Option hereunder, Fair
Market Rent shall be determined in the manner just described
except that (i) Lessor shall provide to Lessee Lessor's good
faith determination of Fair Market Rent within twenty (20)
days after Lessor receives Lessee's notice of exercise of the
Extension Option; and (ii) if Lessor and Lessee are unable to
agree on the Fair Market Rent within twenty (20) days
thereafter, then Lessee may, within ten (10) days after the
expiration of such twenty (20) day period, elect either to
withdraw its notice of exercise, in which event its right to
extend the Term shall terminate, or to request that the Fair
Market Rent be determined by appraisal. The sixty (60) day
period within which the parties must each select a real estate
professional to determine the Fair Market Rent for the
Premises shall commence upon the expiration of the ten (10)
day period during which Lessee may elect to withdraw its
notice of exercise.
4.0 PERMITTED USES. The premises shall be occupied continuously by Lessee
and used for the following purposes (the "Permitted Uses") only and for
no other:
To the extent permitted as a matter of right under the Zoning
Ordinance of the City of Cambridge, as amended from time to
time: laboratory, research and development, light
manufacturing (including a pilot plant but only if Lessor
determines, in its sole discretion, that such facility does
not constitute a use which is not compatible with the uses
being made by other lessees of the Building or which is unduly
hazardous in comparison to such other uses), and office uses.
5.0 TAXES; OPERATING EXPENSES
5.1 TAXES. Lessee shall pay as Additional Rent its pro rata share
("Lessee's Share") of all taxes, special or general
assessments, water rents, rates and charges, sewer rents and
other impositions and charges imposed by governmental
authorities of every kind and nature whatsoever, extraordinary
as well as ordinary and each and every installment thereof
which shall or may during the Term become due and payable or
become liens upon or for or with respect to the Land or any
part thereof and the Building or the Premises, or
appurtenances or equipment owned by Lessor thereon or therein
or any part thereof, or on this Lease, and any tax based on a
percentage fraction or capitalized value of the Rent (whether
in lieu of or in addition to the taxes hereinbefore described)
(collectively, "Taxes"). Taxes shall not include inheritance,
estate, excise, succession, transfer, gift, franchise, income,
gross receipt, or profit taxes except to the extent such are
in lieu of or in substitution for Taxes as now imposed on the
Building, the Land, the Premises or this Lease. "Lessee's
Share" shall be computed on the basis of a fraction whose
numerator is the number of rentable square feet in the
Premises (exclusive of the Basement Space) and whose
denominator is the total number of rentable square feet in the
Building. As of the date hereof, Lessee's Share is 87.85%.
5.2 OPERATING EXPENSES. Lessee shall pay as Additional Rent
Lessee's Share of all reasonable expenses, costs, and
disbursements of every kind and nature (collectively,
"Operating Expenses") which Lessor shall pay or become
obligated to
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pay in connection with the ownership, operation and
maintenance of the Building or the Land, including all
facilities in operation on the Commencement Date and such
additional facilities in subsequent years as may be
determined by Lessor to be necessary or beneficial for the
operation of the Building or the Land or the provision of
services to lessees, including, but not limited to:
(a) all salaries, wages, fringe benefits, payroll taxes
and worker's compensation insurance premiums related
thereto of and for employees engaged in the operation
of the Building and the Land (with respect to
employees who are engaged in the operation of other
properties as well as the Building and the Land,
these amounts shall be pro-rated on the basis of the
relative amount of time spent by such employees on
the various properties);
(b) painting, repairs, maintenance and cleaning of all
Common Areas;
(c) utilities (including, without limitation,
electricity, water, sewer and gas) for all interior
Common Areas and lighting of exterior areas and the
"On-Site Parking Area" (as defined in Section 9.0
below);
(d) maintenance and repair of the Building heating and
cooling systems, the plumbing systems, the fire
detection and suppression systems, the electrical
system and the elevators;
(e) all maintenance, janitorial, and service agreements;
(f) all insurance, including the cost of casualty and
liability insurance applicable to the On-Site Parking
Area, the Land, the Building and Lessor's personal
property used in connection therewith, including the
amount of any reasonable deductible payable by Lessor
in making repairs and restoration after a casualty;
(g) maintenance of landscaped areas and paved areas, and
snow removal;
(h) maintenance of the Building security system;
(i) management fees and the fair market value of office
space for the manager of the Building for an office
not to exceed 500 square feet of usable area (but if
such office is used to manage properties other than
the Land and Building, such fair market rent shall be
pro-rated on a square footage basis among such
various properties);
(j) capital items which reduce Operating Expenses
associated with the item which is the subject of such
expenditure, or which upgrade services or which are
at any time required by a governmental authority or
required by the provisions of any insurance policy
which is first adopted or first becomes
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applicable to the Premises, the Building or the Land
after the date of this Lease, amortized over the
reasonable life of the capital items on a straight
line basis with the reasonable life being determined
by Lessor in accordance with generally accepted
accounting principles;
(k) reasonable expenses incurred in pursuing an
application for an abatement of Taxes pursuant to
Section 5.4 below to the extent not deducted from the
abatement, if any, received;
(l) legal (excluding legal fees with respect to lease
negotiations and enforcement of lease terms against
lessees), accounting and other professional fees and
disbursements (excluding leasing commissions);
(m) all costs and expenses incurred by Lessor in
connection with the operation of the cafeteria in the
Building; PROVIDED, HOWEVER, that notwithstanding
anything to the contrary contained in this Lease, (i)
all subsidies or other amounts payable by Lessor to
the cafeteria operator, (ii) the cost of all services
which are separately invoiced to Lessor for the
cafeteria (e.g., cleaning), and (iii) the cost to
Lessor of supplying to the cafeteria separately
metered utilities shall be allocated 100% among the
occupants of the Building at the time that these
costs and expenses are incurred and no portion of
these costs and expenses shall be borne by Lessor
(Lessor hereby agreeing that any surplus received by
Lessor from the operation of the cafeteria shall be
applied by Lessor to reduce Operating Expenses); and
(n) services to be provided by Lessor as set forth on
EXHIBIT D attached.
In the event that the average occupancy rate for the Building
is less than ninety-five (95%) percent for any fiscal year,
then for purposes of calculating Operating Expenses, the
Operating Expenses for such fiscal year shall be increased by
the additional costs and expenses that Lessor reasonably
estimates would have been incurred if the average occupancy
rate had been ninety-five (95%) percent for such fiscal year.
It is not the intent of this provision to permit Lessor to
charge Lessee for any Operating Expenses attributable to
unoccupied space, or to seek reimbursement from Lessee for
costs Lessor never incurred. Rather, the intent of this
provision is to allow Lessor to recover only those increases
in Operating Expenses properly attributable to occupied space
in the Building and this provision is designed to calculate
the actual cost of providing a variable Operating Expense
service to the portions of the Building receiving such
service. This "gross-up" treatment shall be applied only with
respect to variable Operating Expenses arising from services
provided to leased space in the Building in order to allocate
equitably such variable Operating Expenses to the lessees of
the Building.
5.3 PAYMENT OF TAXES AND OPERATING EXPENSES. Within a reasonable
time (not to exceed ninety (90) days after the Commencement
Date, and thereafter within a
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reasonable time (not to exceed ninety (90) days) after the
end of each fiscal year (or portion thereof) included in the
Term, Lessor shall deliver to Lessee (i) a statement of
actual Operating Expenses and Taxes for the fiscal year just
ended, together with reasonable supporting documentation
therefor, and (ii) a budget of Operating Expenses and Taxes
for the then-current fiscal year based on the actual
Operating Expenses and Taxes for the preceding year and
reasonably projected increases or decreases reasonably
anticipated by Lessor. Commencing on the first day of the
first calendar month after the delivery to Lessee of such
budget, Lessee shall pay to Lessor, as Additional Rent, on
account of its share of anticipated Operating Expenses and
Taxes for the then-current year, 1/12th of the total
annualized amount of Lessee's Share of Operating Expenses
and Taxes. Lessor reserves the right to revise the budget
during any fiscal year to cause it to more accurately
reflect the actual Taxes or Operating Expenses being paid or
incurred by Lessor, and upon any such revision the parties
shall make adjustments in the same time and manner as
hereinafter provided for fiscal year-end adjustments. Upon
delivery to Lessee of the statement of actual Operating
Expenses and Taxes for the preceding fiscal year, Lessor
shall adjust Lessee's account accordingly. If the total
amount paid by Lessee on account of the preceding fiscal
year is less than the amount due hereunder, Lessee shall pay
the balance due within twenty (20) days after delivery by
Lessor of such statement. If the total amount paid by Lessee
on account of the preceding fiscal year exceeds the amount
due hereunder, such excess shall be credited by Lessor
against the monthly installments of Additional Rent next
falling due or refunded to Lessee upon the expiration or
termination of this Lease (unless such expiration or
termination is the result of an "Event of Default" (as
defined in Section 14.1 below), in which case Lessor shall
credit such amount against any amount due from Lessee by
reason of such termination). Lessor's current fiscal year is
July 1 - June 30, but Lessor reserves the right to change
the fiscal year at any time during the Term.
Lessee shall have the right, upon written notice given to
Lessor, at Lessee's sole cost and expense to review Lessor's
books and records relating to the Operating Expenses and Taxes
for the Building and the Land for the prior fiscal year during
normal business hours at the office where these records are
maintained.
5.4 ABATEMENT OF TAXES. Lessor may at any time and from time to
time make application to the appropriate governmental
authority for an abatement of Taxes. If (i) such an
application is successful and (ii) Lessee has made any payment
in respect of Taxes pursuant to this Section 5 for the period
with respect to which the abatement was granted, Lessor shall
(a) deduct from the amount of the abatement all third-party
expenses incurred by it in connection with the application,
(b) pay to Lessee Lessee's Share (adjusted for any period for
which Lessee had made a partial payment) of the abatement,
with interest, if any, paid by the governmental authority on
such abatement, and (c) retain the balance, if any.
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6.0 ELECTRIC SERVICE. Lessee shall make its own arrangements for the
provision of electricity to the Premises, and shall pay when due all
charges therefor directly to the company which provides such electrical
service.
7.0 INSURANCE
7.1 PUBLIC LIABILITY INSURANCE. Lessee shall take out and maintain
in force throughout the Term (and for so long thereafter as
Lessee remains in occupancy) comprehensive public liability
insurance naming Lessor and persons claiming by, through or
under Lessor as additional insureds, against all claims and
demands for any injury to persons or property which may be
claimed to have occurred on the Premises, the Building, the
Land or on the ways adjoining the Land, in an amount which at
the beginning of the Term shall not be less than $1,000,000
for personal injury or death or property damage per
occurrence, and $5,000,000 in the aggregate for personal
injury or death or property damage, or such higher amounts as
Lessor thereafter determines to be consistent with sound
commercial practice in Cambridge. Such policy shall also
include contractual liability coverage covering Lessee's
liability assumed under this Lease.
7.2 CASUALTY INSURANCE. Lessee shall take out and maintain
throughout the Lease Term a policy of fire, vandalism,
malicious mischief, extended coverage and so-called all risk
coverage insurance insuring (i) all items or components of
"Lessee's Work" which Lessee is by this Lease either entitled
to or required to remove upon the expiration or earlier
termination of this Lease (as identified and described in
EXHIBIT C) or "Alterations" (as defined in Section 11.0(f)
below) which Lessee is by this Lease either entitled to or
required to remove upon the expiration or earlier termination
of this Lease, and (ii) "Lessee's Property" (as defined in
Section 11.0(i) below) for the benefit of Lessee in an amount
equal to the replacement value thereof. Lessor shall be named
as a certificate holder on such policy. Lessor shall, at
Lessee's cost and expense, cooperate fully with Lessee and
execute any and all consents and other instruments and take
all other actions necessary to obtain the largest possible
recovery. Lessor shall not carry any insurance concurrent in
coverage and contributing in the event of loss with any
insurance required to be furnished by Lessee hereunder if the
effect of such separate insurance would be to reduce the
protection or the payment to be made under Lessee's insurance.
7.3 CERTIFICATE OF INSURANCE. The insurance required by Sections
7.1 and 7.2 above shall be placed with insurers reasonably
satisfactory to Lessor and authorized to do business in
Massachusetts. Such insurance shall provide that it shall not
be amended or canceled with respect to the additional insureds
or certificate holders without thirty (30) days' prior written
notice to each of them. Lessee shall furnish to Lessor
certificates of insurance for all insurance required to be
maintained by Lessee under this Lease, together with evidence
satisfactory to Lessor of the payment of all premiums for such
policies. Lessee, at Lessor's request, shall also deliver such
certificates and evidence of payment of premiums to the holder
of any mortgage affecting the Land and Building.
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7.4 LESSOR'S INSURANCE. Lessor shall take out and maintain in
force throughout the Term, in a company or companies
authorized to do business in Massachusetts, casualty insurance
on the Building (exclusive of "Lessee's Property" and all
items or components of "Lessee's Work" which Lessee is by this
Lease either entitled to or required to remove upon the
expiration or earlier termination of this Lease or
"Alterations" which Lessee is by this Lease either entitled to
or required to remove upon the expiration or earlier
termination of this Lease, as to which Lessee is required to
maintain insurance pursuant to Section 7.2 above) in an amount
equal to the full replacement value of the Building (exclusive
of foundations and those items set forth in the preceding
parenthetical in this sentence), covering all risks of direct
physical loss or damage and so-called "extended coverage"
risks. This insurance may be maintained in the form of a
blanket policy covering the Building as well as other
properties owned by Lessor. Notwithstanding the foregoing
provisions of this Section 7.4, Lessor shall have the right,
at any time during the Term, to self-insure all or any portion
of the coverages required by this Section.
7.5 WAIVER OF SUBROGATION. To the extent to which a waiver of
subrogation clause is available, Lessor and Lessee shall
obtain a provision in all insurance policies carried by such
party covering the Premises, including but not limited to
contents, fire and casualty insurance, expressly waiving any
right on the part of the insurer against the other party. If
extra cost is chargeable for such provision, then Lessee shall
pay such extra charge. Notwithstanding the foregoing, with
respect to such portion of the Term during which Lessor elects
to self-insure under Section 7.4 above, then for purposes of
this Section 7.5, Lessor shall be deemed to have maintained
fire and all-risk coverage in an amount equal to one hundred
(100%) percent of the insurable value of the Building (subject
to the exceptions and exclusions set forth in Section 7.4
above) with a waiver of subrogation clause contained therein.
7.6 WAIVER OF RIGHTS. All claims, causes of action and rights of
recovery for any damage to or destruction of persons, property
or business which shall occur on or about the Premises, the
Building or the Land, which result from any of the perils
insured under any and all policies of insurance maintained by
Lessor or Lessee, are waived by each party as against the
other party, and the officers, directors, employees,
contractors, servants and agents thereof, regardless of cause,
including the negligence of the other party and its respective
officers, directors, employees, contractors, servants and
agents, but only to the extent of recovery, if any, under such
policy or policies of insurance; PROVIDED, HOWEVER, that (i)
this waiver shall be null and void to the extent that any such
insurance shall be invalidated by reason of this waiver, and
(ii) with respect to such portion of the Term during which
Lessor elects to self-insure under Section 7.4 above, then for
purposes of this Section 7.6, Lessor shall be deemed to have
maintained fire and all-risk coverage in an amount equal to
one hundred (100%) percent of the insurable value of the
Building (subject to the exceptions and exclusions set forth
in Section 7.4 above).
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8.0 ASSIGNMENT AND SUBLETTING. (a) Lessee shall not mortgage, pledge,
hypothecate, grant a security interest in, or otherwise encumber this
Lease or any sublease hereinafter entered into by Lessee, or assign
this Lease, or sublease the Premises or any portion thereof (the term
"sublease" shall be deemed to include any arrangement pursuant to which
a third party is permitted by Lessee to occupy all or any portion of
the Premises), without obtaining, on each occasion, the prior written
consent of Lessor, which consent shall not be unreasonably withheld or
delayed. Lessee may only assign this Lease or sublease to persons or
entities which will actually occupy the Premises or the portion thereof
so subleased.
(b) If Lessee wishes to assign this Lease or sublease all or any
portion of the Premises, Lessee shall so notify Lessor in writing and
request Lessor's consent thereto. Such notice shall include (i) the
name of the proposed assignee or sublessee, (ii) a general description
of the types of business conducted by the proposed assignee or
sublessee and a reasonably detailed description of the business
operations proposed to be conducted in the Premises by such person or
entity, (iii) such financial information concerning Lessee and the
proposed assignee or sublessee as Lessor may reasonably require (but
such financial information shall not serve as the basis for a
withholding of consent by Lessor), and (iv) all terms and provisions
upon which such assignment or sublease is proposed to be made. Lessor
shall have thirty (30) days from the day on which it receives Lessee's
notice and such required information to give notice to Lessee that
either (i) Lessor consents to such assignment or sublease, or (ii)
Lessor reasonably withholds its consent to such assignment or sublease,
in which case Lessor shall set forth the reasons therefor, or (iii)
where applicable, Lessor is exercising its right of recapture pursuant
to paragraph (e) below.
(c) If Lessor consents to an assignment or sublease: (i) Lessee shall
promptly deliver to Lessor a fully executed copy of said assignment or
sublease, which shall be in the form previously submitted to Lessor for
review; (ii) after any such assignment or sublease, Lessee shall remain
primarily liable to Lessor hereunder (which liability shall be joint
and several with the assignee or sublessee); and (iii) if the aggregate
rent and other amounts payable to Lessee under or in connection with
such assignment or sublease, after deduction of the costs reasonably
incurred by Lessee in entering into such assignment or sublease
(including, without limitation, reasonable attorneys' fees and
expenses, brokerage commissions, and alteration costs amortized on a
straight-line basis over the term of such sublease or, in the case of
an assignment, over the remaining Term of this Lease), exceeds the Rent
payable hereunder with respect to the portion of the Premises subject
to such sublease (or, in the case of an assignment, the entire
Premises) or if Lessee otherwise derives any net profit from such
sublease or assignment, Lessee shall pay to Lessor, as Additional Rent,
fifty percent (50%) of the entire amount of such excess or net profit
immediately upon receipt thereof by Lessee. As used herein the phrase
"the aggregate rent and other amounts payable to Lessee under or in
connection with such assignment or sublease" shall include without
limitation, payments received by Lessee for services such as
glass-washing rendered by Lessee to such assignee or sublessee but only
to the extent such payments exceed Lessee's actual costs for providing
such services.
(d) If Lessor reasonably withholds its consent to such assignment or
sublease, Lessee shall not enter into the proposed assignment or
sublease with such person or entity.
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(e) If Lessor elects, it shall have the right to consider Lessee's
request for Lessor's consent to any assignment of the Lease, or a
request for Lessor's consent to a sublease which either (i) has a
proposed term (including extension options) of five years or more, or
(ii) would cause more than fifty percent (50%) of the rentable area of
the Premises (in the aggregate) to be subject to one or more subleases,
as an offer to Lessor to release from this Lease that portion of the
Premises which is proposed to be the subject of such sublease for the
term of such proposed sublease or, in the case of a proposed assignment
of this Lease, the entire Premises for the entire Lease Term. If Lessor
accepts such offer, then (i) in the case of a proposed sublease, this
Lease shall be deemed to be amended as of the proposed effective date
of such sublease so as to delete the portion of the Premises which
would have been subject thereto from the Premises for purposes of this
Lease (with a commensurate adjustment in Rent and Lessee's Share) for
the time period of what would have been the term of such sublease, or
(ii) in the case of a proposed assignment, this Lease shall terminate
as of the proposed effective date of such assignment as if such date
was the last day of the Term.
(f) Regardless of whether Lessor grants such consent, Lessee shall
reimburse Lessor on demand, as Additional Rent, for all out of pocket
costs and expenses (including, without limitation, attorneys' fees)
reasonably incurred by Lessor in responding to a request for such
consent, in an amount not to exceed $2,000.00 per request.
(g) Lessee shall not be entitled to enter into any assignment or
sublease, or to request Lessor's consent thereto, during the
continuance of an Event of Default hereunder by Lessee.
(h) Any assignment or sublease entered into pursuant to this Section
8.0 shall be subject to all of the terms and provisions of this Lease,
including without limitation this Section 8.0. If Lessee enters into
any such assignment or sublease, Lessor may, at any time and from time
to time after the occurrence of a default hereunder, collect rent from
such assignee or sublessee, and apply the net amount collected against
Lessee's obligations hereunder, but no such assignment or sublease or
collection shall be deemed an acceptance by Lessor of such assignee or
sublessee as a lessee hereunder or as a release of the original named
Lessee hereunder.
(i) In the event that Lessee desires to assign this Lease or to
sublease the Premises (or any portion thereof) to any corporation,
partnership, association or other business organization directly or
indirectly controlling or controlled by Lessee or under common control
with Lessee, or to any successor by merger, consolidation or purchase
of all or substantially all of the assets of Lessee (each a "Lessee
Affiliate"), Lessee shall give at least twenty (20) days' prior written
notice thereof to Lessor (unless Lessee is prohibited by applicable
laws, codes, rules or regulations, or by the terms of the operative
merger agreement or purchase and sale agreement from providing notice
to Lessor at such time, in which event such notice shall be provided to
Lessor as soon as Lessee is no longer subject to such prohibition). No
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consent of Lessor shall be required for any such assignment or
sublease. Any assignee or sublessee which claims an interest in this
Lease pursuant to a transfer of the type described in this paragraph
(i) shall be bound by all of the terms and conditions of this Lease.
For the purpose of this Lease, the sale of Lessee's capital stock
through any public exchange shall not be deemed an assignment or
sublease of the Lease or of the Premises.
(j) Notwithstanding anything contained in this Lease, Lessee shall not,
either voluntarily or by operation of law, make any transfer of this
Lease or the Premises (or any portion thereof) which results in Lessee
(or anyone claiming by, through or under Lessee) collecting in
connection with the Premises any rental or other charge based on the
net income or on the profits of any person so as to render any part of
the Rent due hereunder "unrelated business taxable income" of Lessor as
described in Section 512 of the Internal Revenue Code of 1986, as
amended, and any such transfer shall be void AB INITIO.
9.0 PARKING.
9.1. ON-SITE PARKING SPACES. Lessee shall have the right to lease
in the parking area on the Land (the "On-Site Parking Area")
up to one and one-half (1.5) spaces per 1,000 square feet of
rentable area in the Premises (the "On-Site Parking
Spaces"). Lessee hereby agrees to lease two hundred seventy
(270) On-Site Parking Spaces effective on the Commencement
Date. If Lessee leases any space pursuant to the Right of
First Offer set forth in Section 1.4 above, then Lessee
shall have the right to lease additional On-Site Parking
Spaces at the ratio of 1.5 spaces per 1,000 square feet of
rentable area so leased, by giving written notice of the
number of spaces so desired at the time that Lessee
exercises its Right of First Offer. Lessee shall have the
right to decrease (but not, except as expressly provided in
the next succeeding sentence, to increase) the number of
On-Site Parking Spaces so leased (but in no event to lease
more than the number of spaces set forth above) by giving
written notice to Lessor not less than thirty (30) days
prior to any 6-month anniversary of the Commencement Date,
which notice shall be effective to reduce the number of
On-Site Parking Spaces so leased effective upon such 6-month
anniversary. Once Lessee has decreased the number of On-Site
Parking Spaces leased by it, Lessee shall have the right
thereafter, by giving written notice to Lessor, to request
from time to time additional On-Site Parking Spaces (up to
an aggregate maximum of 1.5 spaces per 1,000 square feet of
rentable area in the Premises), and Lessor shall have up to
six (6) months to provide such spaces to Lessee.
9.2. OFF-SITE PARKING SPACES. In addition to the On-Site Parking
Spaces, Lessor shall lease to Lessee an additional sixty
(60) parking spaces (collectively, the "Off-Site Parking
Spaces") in a parking lot or lots in the vicinity of the
Building as shown cross-hatched on EXHIBIT G attached.
Lessor reserves the right to relocate all or any portion of
the Off-Site Parking Spaces within the area shown on EXHIBIT
G from time to time during the Term. Lessor shall use its
best efforts to spread the Off-Site Parking Spaces over the
fewest number of parking lots possible. Notwithstanding the
foregoing, in the event that Lessor hereafter
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reduces the number of the properties shown on EXHIBIT G used
for parking purposes, and consequently is unable to provide
some or all of the Off-Site Parking Spaces on its own
property, the named Lessor shall, upon request by Lessee,
make reasonable efforts to lease all or a portion of such
spaces from a third party, in which event the rent payable
on account of such Off-Site Parking Spaces so leased shall
be the amount paid by the named Lessor to such third party
therefor, without markup.
9.3 ADDITIONAL RENT FOR PARKING SPACES.Lessee shall pay for each
parking space leased hereunder, as Additional Rent, in advance
on the first calendar day of each month, an amount equal to
the Fair Market Rent of such parking spaces, as determined
annually. Fair Market Rent shall be determined in the manner
provided in Section 3.2 above for the Initial Term except that
if Lessor and Lessee are unable to agree on Fair Market Rent,
it shall be determined by one real estate professional (rather
than by two or three as provided in Section 3.2) who shall
have the qualifications stated in said Section and shall be
mutually acceptable to Lessor and Lessee.
10.0 LATE PAYMENT OF RENT. Lessee agrees that in the event that any payment
of Basic Rent or Additional Rent shall remain unpaid at the close of
business on the tenth business day after the same is due and payable
hereunder (without reliance on any applicable grace period), such
payment shall bear interest from the date the same was due at a rate
equal to the "Prime Rate" as published from time to time in THE WALL
STREET JOURNAL while such payment is overdue PLUS three (3%) percent,
which shall be due and payable by Lessee as Additional Rent as
compensation for Lessor's extra administrative costs in investigating
the circumstances of late Rent. The assessment or collection of such a
charge shall not be deemed to be a waiver by Lessor of any default by
Lessee arising out of such failure to pay Rent when due.
11.0 LESSEE'S COVENANTS. Lessee covenants, at its sole cost and expense,
during the Term and such further time as Lessee occupies any part of
the Premises:
(a) to pay when due the Basic Rent and all Additional Rent, and,
if separately metered at any time during the Term, all
charges for electricity and other utilities;
(b) damage by fire or casualty and reasonable wear and tear only
excepted, to keep the Premises (including window glass) in as
good order, repair and condition as the same are in at the
commencement of the Term, or may be put in thereafter;
(c) not to injure, overload or deface the Premises or the
Building, nor to suffer or commit any waste therein, nor to
place a load upon any floor which exceeds the floor load
which the floor was designed to carry, nor to connect any
equipment or apparatus to any Building system (e.g.,
electrical, plumbing, mechanical) which exceeds the capacity
of such system, nor to permit on the Premises any auction
sale
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or any nuisance or the emission therefrom of any objectionable
vibration, noise, or odor, nor to permit the use of the
Premises for any purpose other than the Permitted Uses, nor
any use thereof which is contrary to any laws, ordinances,
codes, rules and regulations, or the provisions of any
license, permit or other governmental consent or approval
required for or applicable now or at any time during the Term
to the Land, the Building or the Premises or Lessee's use
therefor (collectively, "Legal Requirements"), or which is
liable to invalidate or increase the premiums for any
insurance on the Building or its contents, or liable to
render necessary any alterations or additions to the
Building;
(d) not to obstruct in any manner any portion of the Building not
hereby leased, or the sidewalks or approaches to the Building,
or the On-Site Parking Area, or any hallways or Common Areas,
and to conform to all reasonable rules now or hereafter made
by Lessor for the care and use of the Building, its facilities
and approaches;
(e) to comply with all Legal Requirements and all
recommendations of Lessor's fire insurance rating
organization now or hereafter in effect, to keep the
Premises equipped with all safety appliances, and to procure
(and maintain in full force and effect) all licenses,
permits and other governmental consents and approvals
required by any Legal Requirement or by the provisions of
any applicable insurance policy because of the use made of
the Premises by Lessee (without hereby intending to vary the
provisions of Section 4.0 above), and, if requested by
Lessor, to make all repairs, alterations, replacements or
additions so required in and to the Premises;
(f) not to make any alterations, renovations, improvements
and/or additions to the Premises (collectively,
"Alterations") without on each occasion obtaining the prior
written consent of Lessor, which consent may be withheld by
Lessor in its reasonable discretion taking into account the
effect of such proposed Alterations on the structural
integrity of the Building, whether such proposed Alterations
would be detrimental to or incompatible with the Building
systems, and the effect of such proposed Alterations on the
external appearance of the Building (except that no such
prior written consent of Lessor shall be required for
Alterations which (i) shall not exceed $50,000 in each
instance, and (ii) do not affect the structural integrity of
the Building, and (iii) are not detrimental to or
incompatible with the Building systems, and (iv) do not
affect the exterior appearance of the Building, PROVIDED
that in each such case (x) Lessee shall still provide
advance notice to Lessor of the intended Alterations, and
(y) such Alterations shall be subject to all of the
provisions of this paragraph (f) other than the requirement
of Lessor's prior consent), or to make any holes in any part
of the Building or paint or place any signs, awnings, or the
like, visible from outside of the Premises. Prior to
commencing any Alterations, Lessee shall: secure all
necessary licenses, permits and other governmental consents
and approvals; obtain the written approval of Lessor as to
the plans and specifications for such work (where such
approval is required under this paragraph (f)); obtain the
written approval of Lessor as to the general contractor (or
as to each trade contractor if there is no general
contractor); cause each contractor and subcontractor to
carry
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worker's compensation insurance in statutory amounts
covering all of the contractor's and subcontractor's
employees; and cause each general contractor (or each trade
contractor if there is no general contractor) and
subcontractor to carry comprehensive public liability
insurance in amounts reasonably satisfactory to Lessor (such
insurance to be written by companies reasonably satisfactory
to Lessor and insuring Lessee and Lessor as well as the
contractors and subcontractors). All Alterations shall be
consistent with the ""Tenant Standards" set forth on EXHIBIT
H attached hereto and shall be of a quality equal to or
better than that set forth therein. All Alterations (other
than Lessee's removable personal property and trade
fixtures) and all "Lessee's Work" shall remain part of the
Premises and shall not be removed upon the expiration or
earlier termination of the Term EXCEPT for those items which
Lessor designates for removal in a notice given to Lessee
either (a) at the time that Lessee requests Lessor's
approval of such Alteration (if such approval is required
hereunder) or (b) within ten (10) days after Lessee notifies
Lessor of its intent to make such Alteration (where Lessor's
prior approval is not required hereunder). Lessee shall pay
promptly when due the entire cost of such work. Lessee shall
not cause or permit any liens for labor or materials
performed or furnished in connection therewith to attach to
the Land or the Building, and shall discharge or bond any
such liens which may be filed or recorded against the
Premises within fifteen (15) days after the filing or
recording thereof. All such work shall be performed in a
good and workmanlike manner and in compliance with all Legal
Requirements and the provisions of all applicable insurance
policies. Promptly after the completion of any Alterations,
Lessee shall provide as-built plans thereof to Lessor.
Lessee shall indemnify and hold Lessor harmless from and
against any and all suits, demands, causes of action,
claims, losses, debts, liabilities, damages, penalties or
judgments, including, without limitation, reasonable
attorneys' fees, arising from injury to any person or
property occasioned by or growing out of such work, which
indemnity shall survive the expiration or termination of
this Lease;
(g) to save Lessor harmless and indemnified from any loss, cost
and expense (including, without limitation, reasonable
attorneys' fees) arising out of or relating to (i) a claim
of injury to any person or damage to any property while on
the Premises, if not due to the negligence or willful
misconduct of Lessor or its officers, agents, employees,
servants or contractors, or the breach of Lessor's
obligations under this Lease; or to (ii) a claim of injury
to any person or damage to any property anywhere alleged to
be occasioned by any omission, neglect or default of Lessee
or of anyone claiming by, through, or under Lessee, or any
officer, agent, employee, servant, contractor or invitee of
any of the foregoing. Lessor agrees to indemnify and hold
harmless Lessee from and against all loss, cost and expense
(including, without limitation, reasonable attorneys' fees)
arising out of or relating to a claim for personal injury or
property damage resulting from the negligence or willful
misconduct of Lessor or its officers, agents, employees,
servants or contractors, or from the breach of Lessor's
obligations or representations under this Lease. The
provisions of this clause (g) shall survive the expiration
or termination of this Lease;
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(h) to permit Lessor and Lessor's agents to examine the Premises
at reasonable times (provided 24 hours' notice is given to
Lessee, except in case of emergency), and if Lessor shall so
elect (without hereby imposing any obligation on Lessor to
do so), to permit Lessor to make any repairs or additions
Lessor may deem necessary; and at Lessee's expense to remove
any Alterations, signs, awnings, aerials, flagpoles or the
like not consented to in writing; and to permit Lessor to
show the Premises to prospective purchasers and lessees (at
reasonable times on reasonable advance notice to Lessee) and
to keep affixed to any suitable part of the Premises, during
the nine (9) months preceding the expiration of the Term,
appropriate notices for letting or selling; any entry by
Lessor onto the Premises, whether made pursuant to this
paragraph or otherwise, shall be made in accordance with
Lessee's reasonable standard operating procedures as set
forth in writing and previously delivered to Lessor (but in
cases of emergencies Lessor shall be required only to use
reasonable efforts to comply with such standard operating
procedures);
(i) that all furniture, furnishings, fixtures and property of
every kind of Lessee and of all persons claiming by, through
or under Lessee which may be on the Premises from time to time
(collectively, "Lessee's Property") shall be at the sole risk
of Lessee, and Lessor shall not be liable if the whole or any
part thereof shall be destroyed or damaged by fire, water or
otherwise, or by the leakage or bursting of water pipes, steam
pipes, or other pipes, or by theft or from any other cause
unless caused by the negligence or willful misconduct of
Lessor, or its officers, agents, employees, servants or
contractors;
(j) to pay promptly when due, all taxes of any kind levied,
imposed or assessed on Lessee's Property, which taxes shall be
the sole obligation of Lessee, whether the same is assessed to
Lessee or to any other person and whether the property on
which such tax is levied, imposed or assessed shall be
considered part of the Premises or personal property;
(k) by the end of business on the last day of the Term (or the
effective date of any earlier termination of this Lease as
herein provided), to remove (1) all of Lessee's Property and
(2) the items or components of Alterations designated for
removal as provided in paragraph (f) above and (3) the items
or components of "Lessee's Work" designated for removal as
identified and described on EXHIBIT C, in each case whether
the same be permanently affixed to the Premises or not, and
to repair any damage caused by any such removal to Lessor's
reasonable satisfaction; and to remove the contents of all
neutralization tanks installed by Lessee in the Premises;
and peaceably to yield up the Premises clean and in good
order, repair and condition (reasonable wear and tear, and
damage by fire or other casualty or taking which Lessee is
not otherwise required by the terms of this Lease to repair
or replace only excepted); and to deliver the keys to the
Premises to Lessor. Any of Lessee's Property or those
Alterations designated for removal as provided in paragraph
(f) above which are not removed by such date shall be deemed
abandoned and may be removed and disposed of by Lessor in
such manner as Lessor may determine, and
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Lessee shall pay to Lessor on demand, as Additional Rent, the
entire cost of such removal and disposition, together with the
costs and expenses incurred by Lessor in making any incidental
repairs and replacements to the Premises necessitated by
Lessee's failure to remove Lessee's Property or those
Alterations designated for removal as provided in paragraph
(f) above, as required herein, or by any other failure of
Lessee to comply with the terms of this Lease, and for use and
occupancy during the period after the expiration of the Term
and prior to Lessee's performance of its obligations under
this paragraph (k). Lessee shall further indemnify and hold
Lessor harmless from and against any and all suits, demands,
causes of action, claims, losses, debts, liabilities,
damages, penalties or judgments, including, without
limitation, reasonable attorneys' fees, resulting from
Lessee's failure or delay in surrendering the Premises as
above provided (such indemnity to survive the expiration or
termination of this Lease);
(l) to pay Lessor's reasonable expenses, including reasonable
attorneys' fees, incurred in enforcing any obligations of
Lessee under this Lease;
(m) not to generate, store or use any "Hazardous Materials" (as
hereinafter defined) in or on the Premises or elsewhere in
the Building or on the Land except those identified in
writing to Lessor from time to time, and then only in
compliance with any and all applicable Legal Requirements,
or dispose of Hazardous Materials from the Premises to any
other location except a properly approved disposal facility
and then only in compliance with any and all Legal
Requirements regulating such activity, nor permit any
occupant of the Premises to do so. As used in this Lease,
"Hazardous Materials" means and includes any chemical,
substance, waste, material, gas or emission which is
radioactive or deemed hazardous, toxic, a pollutant, or a
contaminant under any statute, ordinance, by-law, rule,
regulation, executive order or other administrative order,
judgment, decree, injunction or other judicial order of or
by any governmental authority, now or hereafter in effect,
relating to pollution or protection of human health or the
environment. By way of illustration and not limitation,
"Hazardous Materials" includes "oil", "hazardous materials",
"hazardous waste", and "hazardous substance" as defined in
the Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. Section 9601 ET SEQ., as amended,
the Resource Conservation and Recovery Act of 1976, 42
U.S.C. Section 6902 ET SEQ., as amended, and the Toxic
Substances Control Act, 15 U.S.C. 8601 et SEQ., as amended,
the regulations promulgated thereunder, and Massachusetts
General Laws, Chapter 21C and Chapter 21E and the
regulations promulgated thereunder. If, at any time during
the Term, any governmental authority requires testing to
determine whether there has been any release of Hazardous
Materials by Lessee or anyone claiming by, through or under
Lessee, then Lessee shall reimburse Lessor upon demand, as
Additional Rent, for the reasonable costs thereof. Lessee
shall execute affidavits, certifications and the like, as
may be reasonably requested by Lessor from time to time
concerning Lessee's best knowledge and belief concerning the
presence of Hazardous Materials in or on the Premises, the
Building or the Land. Lessor reserves the right to enter
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the Premises at reasonable times (provided twenty-four (24)
hours' notice is given to Lessee, except in case of
emergency) to inspect the same for Hazardous Materials, such
entry to be subject to the provisions of paragraph (h)
above. Lessee's obligations under this paragraph (m) shall
include, if at any time during the Term Lessee or anyone
claiming by, through or under Lessee uses or stores
radioactive materials on the Premises, compliance with all
so-called "close-out" procedures of the Nuclear Regulatory
Commission or other federal, state or local governmental
authorities having jurisdiction over radioactive materials,
regardless of whether or not such procedures are completed
prior to the expiration or earlier termination of the Term.
Lessee shall indemnify, defend, and hold harmless Lessor,
and the holder of any mortgage on the Building or the Land,
from and against any claim, cost, expense, liability,
obligation or damage, including, without limitation,
attorneys' fees and the cost of litigation, arising from or
relating to the breach by Lessee or anyone claiming by,
through or under Lessee of the provisions of this clause
(m), and shall immediately discharge or cause to be
discharged any lien imposed upon the Building or the Land in
connection with any such claim. Lessor shall indemnify,
defend, and hold harmless Lessee from and against any claim,
cost, expense, liability, obligation or damage, including,
without limitation, reasonable attorneys' fees and the cost
of litigation, arising from or relating to the presence
(whether now existing or hereafter arising) of Hazardous
Materials in, under or on the surface of the Land other than
that resulting from the generation, storage or use of
Hazardous Materials on the Premises or elsewhere in the
Building or on the Land by Lessee, or by anyone claiming by,
through or under Lessee, or any officer, agent, servant,
employee, contractor or invitee of any of the foregoing.
Lessor shall indemnify, defend, and hold harmless Lessee
from and against any claim, cost, expense, liability,
obligation or damage, including without limitation,
reasonable attorneys' fees and the cost of litigation,
arising from or relating to the presence of Hazardous
Materials in the Building (i) as of the date of this Lease,
or (ii) thereafter arising and resulting from the
generation, storage or use of Hazardous Materials in the
Building by the Lessor or any officer, agent, servant,
employee, contractor or invitee of any of the foregoing. The
provisions of this paragraph (m) shall survive the
expiration or termination of this Lease;
(n) not knowingly to permit any officer, agent, employee, servant,
contractor or visitor of Lessee, or of anyone claiming by,
through or under Lessee, to violate any covenant or obligation
of Lessee hereunder; and
(o) to provide and pay for the services outlined in EXHIBIT E
attached hereto.
12.0 Intentionally Omitted.
13.0 CASUALTY AND EMINENT DOMAIN.
13.1 SUBSTANTIAL TAKING. In the event that the entire Building, or
more than fifty percent (50%) percent of the rentable area of
the Premises, shall be taken by any exercise of
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the right of eminent domain or other lawful power in
pursuance of any public or other authority during the Term,
then this Lease shall terminate as of the time that
possession is taken by the taking authority. Further, in the
event that a material portion of the Premises is so taken
such that Lessee, in good faith, reasonably determines that
the remainder of the Premises will no longer be usable by
Lessee for the conduct of its normal business operations,
then Lessee shall have the right to terminate this Lease by
written notice to Lessor, in which case this Lease shall
terminate as of the time that possession is taken by the
taking authority.
13.2 PARTIAL TAKING In the event that a taking occurs and this
Lease is not terminated as provided in Section 13.1 above,
then from and after the date possession is taken by the taking
authority Rent shall be abated by an amount representing that
part of the Rent properly allocable to the portion of the
Premises so taken, but this Lease shall otherwise continue in
full force and effect.
13.3 AWARDS. Lessor reserves and excepts all rights to damage to
the Premises, the Building, the Land and the leasehold hereby
created, now accrued or hereafter accruing by reason of any
exercise of eminent domain, or by reason of anything lawfully
done in pursuance of any public or other authority and by way
of confirmation, Lessee grants to Lessor all of Lessee's
rights to such damages and covenants to execute and deliver
such further instruments of assignment thereof as Lessor may
from time to time request.
13.4 SUBSTANTIAL CASUALTY. If the Premises are damaged by fire or
other casualty, Lessee shall promptly notify Lessor thereof.
If the Building or any part thereof shall be damaged by fire
or other casualty to the extent that substantial alteration or
reconstruction of the Building shall, in Lessor's sole
opinion, be required (whether or not the Premises shall have
been damaged), or if such casualty renders more than
thirty-three (33%) percent of the rentable area of the
Premises unusable by Lessee for the operation of its business
in the Premises, or if as a result of such casualty any
mortgagee of the Building requires that insurance proceeds
payable in connection with such casualty be used to retire the
mortgage debt, Lessor may, at its option, terminate this Lease
by notifying Lessee in writing of such termination within
sixty (60) days after the date of such damage, in which event
this Lease shall terminate on the date set forth in such
notice. If, in the reasonable determination of Lessee, such
casualty renders more than thirty-three (33%) percent of the
rentable area of the Premises unusable by Lessee for the
operation of its business in the Premises, or deprives Lessee
of all reasonable access to the Premises, then Lessee may
terminate this Lease as of the date of the occurrence of such
damage by written notice thereof to Lessor within sixty (60)
days after the date of such damage. In the event that this
Lease is terminated pursuant to this Section 13.4 Rent shall
be abated, to the extent the Premises are unusable for the
Permitted Uses, from and after the date of such damage to the
date of such termination of this Lease, and no further Rent
shall accrue or be payable after the date of such termination.
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13.5 REPAIR AND RESTORATION. In the event of a taking which does
not result in the termination of this Lease pursuant to
Section 13.1 above, or a casualty which does not result in the
termination of this Lease pursuant to Section 13.4 above, the
Premises shall be repaired and restored in the manner provided
in this Section. Lessor shall diligently act to restore the
Building and the Premises (exclusive of all items or
components of Lessee's Work or Alterations which Lessee is by
this Lease either entitled to or required to remove upon the
expiration or earlier termination of this Lease, and Lessee's
Property) or, in case of taking, what remains thereof, to
substantially the condition in which they existed prior to the
occurrence of such taking or casualty, provided, however,
that: (i) in no event shall Lessor be required to spend in
connection with restoring the Premises more than the amount of
insurance proceeds or taking award actually received and
allocable thereto (except that this limitation with respect to
insurance proceeds shall not apply to casualties occurring
during such time as Lessor self-insures pursuant to Section
7.4 above or to the extent Lessor insures the Premises for
less than full replacement value as set forth in Section 7.4);
(ii) Lessor shall not be required to restore or replace any of
Lessee's Work or any Alterations which Lessee is by this Lease
either entitled to or required to remove upon the expiration
or earlier termination of this Lease; (iii) Lessor shall not
be required to restore or replace any of Lessee's Property;
and (iv) promptly upon substantial completion of such work by
Lessor, Lessee shall diligently act to repair and/or restore
all of Lessee's Property and all items or components of
Lessee's Work or Alterations which Lessee is by this Lease
either entitled to or required to remove upon the expiration
or earlier termination of this Lease, to substantially the
same condition they were in prior to the occurrence of such
taking or casualty. Lessor shall not be liable for any
inconvenience or annoyance to Lessee or injury to the business
of Lessee resulting in any way from such taking or damage or
the repair thereof. Rent shall be abated from and after the
date of such taking or damage to the date on which Lessor
substantially completes the restoration described above, to
the extent the Premises are unusable for the Permitted Uses.
In the event that, having commenced its repair, restoration
and reconstruction work pursuant to this Section 13.5, Lessor
fails to substantially complete such work either (i) within
six (6) months from the date of such casualty, with respect to
work to be performed within the Premises, or (ii) nine (9)
months from the date of such casualty, with respect to work to
be performed elsewhere in the Building which is required for
the operation of Lessee's business in the Premises (which
periods shall be extended for any delays suffered by Lessor as
the result of Force Majeure or the acts or omissions of
Lessee, its employees, agents, contractors or servants),
Lessee shall have the further right to terminate this Lease on
at least thirty (30) days' prior written notice to Lessor,
such notice to be given within thirty (30) days of the
expiration of such six (6) or (9) month period (as
applicable).
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13.6 CASUALTY DURING LAST 18 MONTHS. Notwithstanding anything to
the contrary contained in this Lease, in the event that a
material portion of the Premises is damaged by a fire or other
casualty occurring during the last (18) eighteen months of the
Lease Term such that Lessor reasonably determines that Lessor
will not be able to substantially complete the repair,
restoration or reconstruction of the Premises within three (3)
months of the date of such casualty, Lessor shall so notify
Lessee and Lessee shall have the right, within thirty (30)
days after its receipt of Lessor's notice, to terminate this
Lease on thirty (30) days prior written notice to Lessor.
However, if Lessee has exercised an Extension Option prior to
the occurrence of such casualty or thereafter exercises an
Extension Option within the time period allowed therefor under
Section 2.2, then this Section 13.6 shall not apply and
neither party shall have the right to terminate this Lease
pursuant to this Section 13.6.
14.0 DEFAULTS; EVENTS OF DEFAULT; REMEDIES.
14.1 DEFAULTS; EVENTS OF DEFAULT. The following shall, if any
requirement for notice or lapse of time or both has not been
met, constitute defaults hereunder, and, if such requirements
have been met, constitute "Events of Default" hereunder:
(a) The failure of Lessee to perform or observe any of
Lessee's covenants or agreements hereunder concerning
the payment of money for a period of ten (10) days
after written notice thereof, PROVIDED, HOWEVER, that
Lessee shall not be entitled to such notice if Lessor
has given notice to Lessee of two or more previous
such failures within a twelve-month period, in which
event such failure shall constitute an Event of
Default hereunder upon the expiration of ten (10)
days after such payment was due;
(b) The failure of Lessee to maintain the insurance
required hereunder in full force and effect;
(c) The execution by Lessee of any assignment or sublease
without the prior written consent of Lessor;
(d) The failure of Lessee to perform or observe any of
Lessee's other covenants or agreements hereunder for
a period of thirty (30) days after written notice
thereof (provided that, in the case of defaults not
reasonably curable in thirty (30) days through the
exercise of reasonable diligence, such 30-day period
shall be extended for so long as Lessee commences
cure within such period and thereafter prosecutes
such cure to completion continuously and with
reasonable diligence; or
(e) If the leasehold hereby created shall be taken on
execution, or by other process of law, and such
taking is not vacated by a final order of a court of
competent jurisdiction within sixty (60) days
thereafter; or if any assignment shall be made of
Lessee's property for the benefit of creditors; or if
a receiver, guardian, conservator, trustee in
bankruptcy or similar officer shall
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be appointed to take charge of all or any part of
Lessee's assets by a court of competent jurisdiction,
and such appointment is not vacated by a final order
of a court of competent jurisdiction within sixty
(60) days thereafter; or if a petition is filed by
Lessee under any bankruptcy or insolvency law; or if
a petition is filed against Lessee under any
bankruptcy or insolvency law and the same shall not
be dismissed within sixty (60) days from the date
upon which it is filed; or a lien or other
involuntary encumbrance is filed against Lessee's
leasehold (or against the Premises, the Building or
the Land based on a claim against Lessee) and is not
discharged or bonded within thirty (30) days after
the filing thereof.
14.2 TERMINATION. If an Event of Default shall occur, Lessor may,
at its option, immediately or any time thereafter and without
demand or notice, enter upon the Premises or any part thereof
in the name of the whole and repossess the same as of Lessor's
former estate and dispossess Lessee and those claiming through
or under Lessee and remove their effects, without being deemed
guilty of any manner of trespass and without prejudice to any
remedies which might otherwise be used for arrears of rent or
preceding breach of covenant, and upon such entry this Lease
shall terminate. In lieu of making such entry, Lessor may
terminate this Lease upon ten (10) business days' prior
written notice to Lessee. Upon any termination of this Lease
as the result of an Event of Default, Lessee shall quit and
peacefully surrender the Premises to Lessor.
14.3 SURVIVAL OF COVENANTS. No such termination of this Lease shall
relieve Lessee of its liability and obligations under this
Lease and such liability and obligations shall survive any
such termination. Lessee shall indemnify and hold Lessor
harmless from all loss, cost, expense, damage or liability
arising out of or in connection with such termination.
14.4 DAMAGES. In the event of any such termination Lessee shall pay
to Lessor the Rent up to the time of such termination. Lessee
shall remain liable for, and shall pay on the days originally
fixed for such payment hereunder, the full amount of all Basic
Rent and Additional Rent as if this Lease had not been
terminated; PROVIDED, HOWEVER, if Lessor relets the Premises,
there shall be credited against such obligation the amount
actually received by Lessor each month from such lessee after
first deducting all costs and expenses incurred by Lessor in
connection with reletting the Premises.
Lessee further agrees to pay to Lessor, on demand, as and for
liquidated and agreed damages for Lessee's default, the amount
(discounted to present value at a discount rate equal to the
then-current yield on United States Treasury securities with a
maturity closest to what would have been the last day of the
Term if this Lease had not been terminated) by which:
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(a) the aggregate Rent which would have been
payable under this Lease by Lessee from the
date of such termination until what would
have been the last day of the Term but for
such termination, EXCEEDS
(b) the greater of (i) the fair and reasonable
rental value of the Premises for the same
period, less Lessor's reasonable estimate of
expenses to be incurred in connection with
reletting the Premises, including, without
limitation, all repossession costs,
brokerage commissions, legal expenses,
reasonable attorneys' fees, alteration
costs, and expenses of preparation for
such reletting, or (ii) the sum of (A) the
amount actually received by Lessor from
reletting the Premises (if any), and (B) the
amount actually received by Lessor from
Lessee pursuant to the preceding paragraph
of this Section (if any).
If the Premises or any part thereof are relet by Lessor for
the period prior to what would have been the last day of the
Term but for such termination, or any portion thereof, the
amount of rent reserved upon such reletting shall be, PRIMA
FACIE, the fair and reasonable rental value for the part or
the whole of the Premises so relet during the term of the
reletting.
In lieu of any other damages hereunder, Lessor may by written
notice to Lessee, at any time within one (1) year after this
Lease is so terminated, elect to recover, and Lessee shall pay
as full and final liquidated damages, an amount equal to (i)
the Basic Rent and Additional Rent accrued under Sections 3.0
and 5.0 hereof respectively in the twelve (12) months ending
on the effective date of such termination, PLUS (ii) all Basic
Rent and Additional Rent which was unpaid as of the effective
date of such termination, LESS (iii) the amount received by
Lessor pursuant to the foregoing provisions of this Section
14.4 prior to the time of payment by Lessee of such liquidated
damages.
Nothing herein contained shall limit or prejudice the right of
Lessor to prove and obtain as liquidated damages by reason of
such termination, an amount equal to the maximum allowed by
any statute or rule of law in effect at the time when, and
governing the proceedings in which, such damages are to be
proved, whether or not such amount be greater, equal to, or
less than the amount of the difference referred to above.
14.5 RIGHT TO RELET. At any time or from time to time after any
such termination, Lessor may relet the Premises or any part
thereof for such a term (which may be greater or less than the
period which would otherwise have constituted the balance of
the Term) and on such conditions (which may include
concessions or free rent) as Lessor, in its reasonable
discretion, may determine, and may collect and receive the
rents therefor. Lessor shall in no way be responsible or
liable for any failure to relet the Premises or any part
thereof, or for any failure to collect any rent due upon any
such reletting.
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14.6 RIGHT TO EQUITABLE RELIEF. In the event there shall occur an
Event of Default hereunder, Lessor shall be entitled to seek
to enjoin the continuation of the same and shall have the
right to invoke any right and remedy allowed at law or in
equity or by statute or otherwise as though re-entry and other
remedies were not provided for in this Lease.
14.7 RIGHT TO SELF HELP. In the event of an Event of Default by
Lessee hereunder, Lessor shall have the right to perform such
defaulted obligation of Lessee, including the right to enter
upon the Premises to do so. Lessor shall, as a courtesy only,
notify Lessee of its intention to perform such obligation. In
the event of a default by Lessee hereunder which has not yet
continued beyond the expiration of the applicable grace period
but which Lessor determines constitutes an emergency
threatening imminent injury to persons or damage to property,
Lessor shall have the right to perform such defaulted
obligation of Lessee (including the right to enter upon the
Premises to do so) after giving Lessee such notice (if any) as
is reasonable under the circumstances. In either event, the
aggregate of (i) all sums so paid by Lessor, (ii) interest (at
the rate set forth in Section 10.0 above or the highest rate
permitted by law, whichever is less) on such sum, and (iii)
all necessary incidental costs and expenses in connection with
the performance of any such act by Lessor, shall be deemed to
be Additional Rent under this Lease and shall be payable to
Lessor immediately upon demand. Lessor may exercise its rights
under this Section 14.7 without waiving any other of its
rights or releasing Lessee from any of its obligations under
this Lease.
14.8 FURTHER REMEDIES. Nothing in this Lease contained shall
require Lessor to elect any remedy for a default or Event of
Default by Lessee hereunder, and all rights herein provided
shall be cumulative with one another and with any other rights
and remedies which Lessor may have at law or in equity in the
case of such a default or Event of Default.
15.0 REAL ESTATE BROKER. Lessor and Lessee each represent to the other that
they have dealt with no broker in connection with this Lease other than
Xxxxxxxx and Grew, Inc. and Insignia ESG, Inc. (collectively, the
"Brokers"). Lessor is not obligated to pay any commission or fee to
Xxxxxxxx and Grew, Inc. in connection with this transaction but has
agreed to pay a commission to Insignia ESG, Inc. as set forth in a
separate agreement. Lessee agrees to indemnify and hold Lessor harmless
from and against any claims for commissions or fees by any person other
than the Brokers by reason of any act of Lessee or its representatives.
Lessor agrees to indemnify and hold Lessee harmless from and against
any claims for commissions or fees by the Brokers or any other person
by reason of any act of Lessor or its representatives.
16.0 NOTICES. Whenever by the terms of this Lease notice, demand, or other
communication shall or may be given either to Lessor or to Lessee, the
same shall be in writing and shall be sent by hand delivery, or by
registered or certified mail, postage prepaid, or by Federal Express or
other similar overnight delivery service, to:
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Lessor: Massachusetts Institute of Technology
000 Xxxx Xxxxxx - Xxxxx 000
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
Managing Director of Real Estate
with a copy to: Xxxxxx X. Xxxxxxxx, Esquire
Rackemann, Xxxxxx & Xxxxxxxx
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Lessee Millennium Pharmaceuticals, Inc.
00 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention:General Counsel
with a copy to: Xxxxxxxxx X. Xxxxxxx, Esquire
Xxxx and Xxxx
Sixty Xxxxx Xxxxxx
Xxxxxx, XX 00000
Any notice, demand or other communication shall be effective upon
receipt by or tender for delivery to the intended recipient thereof.
17.0 NO WAIVERS. Failure of Lessor to complain of any act or omission on the
part of Lessee, no matter how long the same may continue, shall not be
deemed to be a waiver by Lessor of any of its rights hereunder. No
waiver by Lessor at any time, expressed or implied, of any breach of
any provision of this Lease shall be deemed a waiver of a breach of any
other provision of this Lease or a consent to any subsequent breach of
the same or any other provision. No acceptance by Lessor of any partial
payment shall constitute an accord or satisfaction but shall only be
deemed a partial payment on account; nor shall any endorsement or
statement on any check or any letter accompanying any check or payment
be deemed an accord and satisfaction, and Lessor may accept such check
or payment without prejudice to Lessor's right to recover the balance
of such installment or pursue any other remedy available to Lessor in
this Lease or at law or in equity.
18.0 SERVICES PROVIDED BY LESSOR. Lessor shall furnish the services
described on EXHIBIT "D" attached, the cost of which shall be included
in Operating Expenses. Lessor shall not be held liable to anyone for
cessation of any service rendered customarily to the Premises or
Building or agreed to by the terms of this Lease, due to any accident,
to the making of repairs, alterations or improvements, or to the
occurrence of an event of "Force Majeure" (as defined in Section 22
below).
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19.0 GROUND LEASES; MORTGAGES.
19.1 RIGHTS OF GROUND LESSORS AND MORTGAGEES No act or failure to
act on the part of Lessor which would entitle Lessee under the
terms of this Lease, or by law, to be relieved of Lessee's
obligations hereunder or to terminate this Lease, shall result
in a release or termination of such obligations or a
termination of this Lease unless (i) Lessee shall have first
given written notice to Lessor's ground lessors and mortgagees
of record of the act or failure to act on the part of Lessor
which Lessee claims as the basis of Lessee's rights; and (ii)
such ground lessors and mortgagees, after receipt of such
notice, have failed or refused to correct or cure the
condition within a reasonable time thereafter, but nothing in
this Lease shall be deemed to impose any obligation on any
such ground lessor or mortgagee to correct or cure any such
condition. No ground lessor shall be liable for the failure to
perform any of the obligations of Lessor hereunder unless and
until such ground lessor terminates its ground lease and takes
possession of the Premises, nor shall any mortgagee be liable
for the failure to perform any of the obligations of Lessor
hereunder unless and until such mortgagee enters upon and
takes possession of the Premises for purposes of foreclosure.
19.2 LEASE SUBORDINATE. This Lease is and shall be subject and
subordinate to any ground lease or mortgage now or hereafter
on the Premises, and to all advances under any such mortgage
and to all renewals, amendments, extensions and consolidations
thereof, provided that the holder of such ground lessor's
interest or mortgagee's interest enters into a non-disturbance
and attornment agreement with Lessee which provides that in
the event that such ground lessor or mortgagee succeeds to
Lessor's interest hereunder, then, provided that Lessee is not
in default hereunder beyond the cure period provided in this
Lease, such party shall recognize and be bound by the terms of
this Lease. In the event that any ground lessor or the holder
of any mortgage succeeds to Lessor's interest in the Premises
or any portion thereof, Lessee hereby agrees to attorn to such
ground lessor or mortgagee. In confirmation of such
subordination, Lessee shall execute and deliver promptly any
certificate in recordable form that Lessor or any ground
lessor or any mortgagee may reasonably request.
Notwithstanding the foregoing provisions of this Section, the
holder of any mortgage on the Premises may at any time
subordinate its mortgage to this Lease by written notice to
Lessee.
Lessor hereby represents to Lessee that as of the date of this
Lease, there are no mortgages or ground leases encumbering the
Premises or any portion thereof.
20.0 NOTICE OF LEASE; ESTOPPEL CERTIFICATES. Lessor and Lessee agree that
this Lease shall not be recorded. However, upon the request of either
party, Lessor and Lessee shall execute and acknowledge a Notice of
Lease in mutually acceptable and recordable form.
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From time to time during the Lease Term, and without charge, either
party shall, within fifteen (15) business days of request by the other,
certify by written instrument duly executed and acknowledged, to the
requesting party or to any person reasonably specified by the
requesting party, regarding (a) the existence of any amendments or
supplements to this Lease; (b) the validity and force and effect of
this Lease; (c) the existence of any known default or Event of Default;
(d) the existence of any offsets, counterclaims or defenses; (e) the
Commencement Date and the expiration date of the Lease Term; (f) the
amount of Rent due and payable and the date to which Rent has been
paid; and (g) such other matters as may be reasonably requested.
21.0 HOLDING OVER. If Lessee occupies the Premises after the day on which
the Lease Term expires (or the effective date of any earlier
termination as herein provided) without having entered into a new lease
thereof with Lessor, Lessee shall be a tenant-at-sufferance only,
subject to all of the terms and provisions of this Lease at (i) two (2)
times the then-effective Basic Rent stated in Section 3.0 above for the
first three (3) months thereof, and (ii) thereafter, at three (3) times
the then-effective Basic Rent stated in Section 3.0 above. Such a
holding over, even if with the consent of Lessor, shall not constitute
an extension or renewal of this Lease. For purposes of this Section,
the failure of Lessee to complete by the last day of the Lease Term or
the effective date of any earlier termination as herein provided the
"close-out" procedures required by the Nuclear Regulatory Commission or
any other federal, state or local governmental agency having
jurisdiction over the use of radioactive materials within the Premises
shall constitute a holding over and subject Lessee to the provisions of
this Section.
22.0 FORCE MAJEURE. Neither Lessor nor Lessee shall be deemed to be in
default hereunder (and the time for performance of any of their
respective obligations hereunder other than the payment of money shall
be postponed) for so long as the performance of such obligation is
prevented by strike, lock-out, act of God, absence of materials or any
other matter not reasonably within the control of the party which must
perform the obligation (collectively, "Force Majeure").
23.0 ENTIRE AGREEMENT. No oral statement or prior written matter except the
Existing Lease shall have any force or effect. This Agreement shall not
be modified or canceled except by writing subscribed to by all parties.
24.0 SECURITY DEPOSIT. Lessee has deposited with Lessor $80,732.00 (the
"Security Deposit") as security for the full and faithful payment and
performance by Lessee of its obligations under this Lease from and
after the date of execution hereof by Lessee, and not as a prepayment
of Rent. Lessor may commingle the Security Deposit in one or more bank
accounts with other funds of Lessor, and the Security Deposit shall
earn interest at the rate actually paid to Lessor from time to time on
such account (which interest shall be included in the term "Security
Deposit" for the purposes of this Lease). Lessor may use the Security
Deposit to cure any Event of Default by Lessee (whether occurring prior
to the Commencement Date hereunder or thereafter), and Lessee shall
immediately pay to Lessor on demand, as Additional Rent, the amount so
expended and such additional amount as is required to cause the
Security Deposit at all times to equal the amount set forth above.
Lessor shall
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assign the Security Deposit to any successor owner of the Building and
thereafter Lessor shall have no further responsibility therefor. Upon
the expiration (or earlier termination) of the Lease Term, Lessor shall
inspect the Premises, make such deductions from the Security Deposit as
may be required to cure any Event of Default by Lessee hereunder, and,
if Lessee is not then in default hereunder, pay the balance of the
Security Deposit, if any, to Lessee within thirty (30) days of such
expiration or termination. If Lessee is in default hereunder at the
time of such expiration or termination, then Lessor shall be entitled
to retain so much of the Security Deposit as Lessor reasonably
estimates to be Lessee's liability to Lessor hereunder and shall pay
the balance, if any, to Lessee within such 30-day period.
25.0 SATELLITE DISH. Lessee shall have the right to maintain the existing
satellite dish antenna not exceeding twenty-four (24) inches in
diameter on the roof of the Building provided that:
(a) such antenna shall be used solely by Lessee and those
occupying all or portions of the Premises pursuant to an
assignment or sublease with Lessee made in accordance with the
provisions of Section 8.0 of this Lease, unless Lessor
otherwise agrees in writing;
(b) to the extent to which the issuer of the warranty on the roof
requires, as a condition to the continued validity of such
warranty, that only contractors approved by such issuer
perform work on the roof, Lessee shall employ only such
contractors as are approved by such issuer and shall submit
evidence of such approval to Lessor reasonably satisfactory to
Lessor prior to commencing any work on the roof;
(c) Lessee shall, at its sole cost, maintain such antenna in good
operating condition and in accordance with all applicable
Legal Requirements, the provisions of applicable insurance
policies, and the requirements of all existing restrictions,
easements and encumbrances of record affecting the Land; and
(d) Lessee shall, at its sole cost, remove such antenna on or
prior to the date on which the Term expires or this Lease is
terminated, and shall restore the surface of the roof to the
condition in which it was prior to the installation of such
antenna, again using only such contractor as is approved by
the issuer of the warranty covering the roof of the Building,
and Lessee shall submit evidence of such approval to Lessor
reasonably satisfactory to Lessor prior to commencing any work
on the roof.
"All work done by or on behalf of Lessee pursuant to this
Section 25.0 shall be subject to the requirements set forth
elsewhere in this Lease with respect to the performance of
Alterations. Lessor may inspect such work at any time or times
and shall promptly give notice to Lessee of any observed
defects. Lessee shall
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indemnify, defend and hold harmless Lessor from and against
any and all liability, damage, penalties or judgments and from
and against any claims, actions, proceedings and expenses and
costs in connection therewith, including reasonable attorneys'
fees, resulting from any work performed by or on behalf of
Lessee pursuant to this Section 25.0. Such antenna shall be at
Lessee's sole risk, Lessor shall have no responsibility to
maintain any insurance on it, and Lessor shall not otherwise
be responsible for any damage or destruction to such antenna
unless such damage or destruction is caused by Lessor's
negligence."
26.0 EXISTING LEASE. The Existing Lease as it may hereafter be amended,
shall remain in full force and effect until the Commencement Date
hereunder after which the obligations of the parties in respect to the
Premises, the Building and the Land shall be governed by this Lease
except for obligations under the Existing Lease which, in accordance
with its terms, are intended to survive its expiration. Notwithstanding
the foregoing, if an Event of Default occurs under the Existing Lease
prior to the Commencement Date hereunder, then, for the purpose of
calculating damages under the Existing Lease, the remaining term of the
Existing Lease will be deemed to include the Term of this Lease at the
Rent set forth in Sections 3.0 and 5.0 hereof.
27.0 SUCCESSORS AND ASSIGNS. The terms, covenants and conditions of this
Lease shall run with the Land, and be binding upon and inure to the
benefit of Lessor and Lessee and their respective successors and
permitted assigns.
28.0 APPLICABLE LAW, SEVERABILITY AND CONSTRUCTION. This Lease shall be
governed by and construed in accordance with the laws of Massachusetts
and, if any provisions of this Lease shall to any extent be invalid,
the remainder of this Lease, and the application of such provisions in
other circumstances, shall not be affected thereby. The titles of the
several Sections contained herein are for convenience only and shall
not be considered in construing this Lease. Whenever the singular is
used and when required by the context it shall include the plural, and
the neuter gender shall include the masculine and feminine. The
Exhibits attached to this Lease are incorporated into this Lease by
reference. This Lease may be executed in several counterparts, each of
which shall be an original, but all of which shall constitute one and
the same instrument. The term "Lessor" whenever used herein, shall mean
only the owner at the time of Lessor's interest herein, and no covenant
or agreement of Lessor, express or implied, shall be binding upon any
person except for defaults occurring during such person's period of
ownership nor binding individually upon any fiduciary, any shareholder,
officer or director, or any beneficiary under any trust, and the
liability of Lessor, in any event, shall be limited to Lessor's
interest in the Building. If Lessee is several persons or a
partnership, Lessee's obligations are joint or partnership and also
several. Unless repugnant to the context, "Lessor" and "Lessee" mean
the person or persons, natural or corporate, named above as Lessor and
as Lessee respectively, and their respective heirs, executors,
administrators, successors and assigns.
29.0 AUTHORITY. Contemporaneously with the signing of this Lease, Lessee
shall furnish to Lessor a certified copy of the resolution of the Board
of Directors of Lessee authorizing
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Lessee to enter into this Lease, and Lessor shall furnish appropriate
evidence of the authority of Lessor to enter into this Lease
WITNESS the execution hereof in counterparts under seal the day and
year first above written.
LESSOR: MASSACHUSETTS INSTITUTE OF
TECHNOLOGY
By: /s/ XXXXXX X. XXXXX
Xxxxxx X Xxxxx, its Managing
Director of Real Estate
Hereunto duly authorized
LESSEE: MILLENNIUM PHARMACEUTICALS,
INC.
By: /s/ XXXXX X. XXXXX
Xxxxx X. Xxxxx
Chief Financial Officer
Hereunto duly authorized
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EXHIBIT A
PREMISES
[see attached plan]
[graphic]
-35-
EXHIBIT B
SITE PLAN
[see attached plan]
[graphic]
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EXHIBIT C
ITEMS DESIGNATED FOR REMOVAL
[see attached copy]
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EXHIBIT D
SERVICES PROVIDED BY LESSOR
This Exhibit is incorporated by reference into the Lease dated December
1, 2000 by and between Massachusetts Institute of Technology, as Lessor, and
Millennium Pharmaceuticals, Inc., as Lessee. Terms defined in or by reference in
the Lease not otherwise defined herein shall have the same meaning herein as
therein.
Lessor shall provide the following services at the Building:
1. Heating and air conditioning services for the Premises as demised at
the start of the Term for normal office operations between the hours of
8:00 a.m. and 6:00 p.m., Monday through Friday, except on national or
state holidays. Excluded from such services are air conditioning
requirements for computers or other exceptional office machinery. If
Lessee requests air conditioning or heating services at hours other
than those set forth above, Lessor shall provide such service, and
Lessee shall pay Lessor's costs to furnish such service as Additional
Rent.
2. Maintenance of the following:
All Building heating equipment, electrical equipment, and
plumbing systems in public areas only; all Building air
conditioning equipment, excluding special air conditioning
equipment; all window frames and glass, unless the damage to
any of the above is caused by the willful neglect or misuse by
Lessee.
3. Nightly (Monday-Friday) cleaning of the public corridors, stairwells,
lobbies, bathrooms; and cleaning of the windows, both inside and out,
two (2) times per year.
4. Extermination of all public and tenanted areas of the Building, as the
management of the Building deems necessary.
5. Structural maintenance of the Premises including repairs to the roof,
exterior walls of the building and structural damage to the floors.
6. Lettering for up to a maximum of three names in the Building directory
located in the main lobby.
7. Snow removal, landscaping maintenance, cafeteria management, and other
services as deemed necessary by Lessor for the normal operation of the
Building.
8. Security for the Building as reasonably determined by Lessor after
consulting with Lessee and other tenants in the Building.
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EXHIBIT E
SERVICES PROVIDED BY LESSEE
This Exhibit is incorporated by reference into the Lease dated December
1, 2000 by and between Massachusetts Institute of Technology, as Lessor, and
Millennium Pharmaceuticals, Inc., as Lessee. Terms defined in or by reference in
the Lease not otherwise defined herein shall have the same meaning herein as
therein.
Lessee shall provide and pay for all maintenance of and repairs to the
Premises necessary to keep the Premises in good condition or in as good a
condition as the Premises were at the beginning of the Term or may be put in
thereafter (damage from taking or casualty or reasonable wear and tear only
excepted). Such repairs and maintenance shall include but not be limited to the
following:
A. The maintenance and repair of any plumbing systems within the
Premises (and serving solely the Premises), and the repair of any
damage to the Premises or to the Building caused by the
malfunction of such plumbing systems;
B. The maintenance and repair of all electrical wiring, outlets,
switches and light fixtures within the Premises (and serving
solely the Premises);
C. The maintenance and repair of all hardware within the Premises;
D. The maintenance and repair of all walls, doors, ceilings, and
floors.
E. The replacement of fluorescent light tubes and ballasts. This
service is available through Building management on a time and
materials basis.
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EXHIBIT F
COPY OF LESSOR'S CERTIFICATE OF TITLE
This Exhibit is incorporated by reference into the Lease dated December
1, 2000 by and between Massachusetts Institute of Technology, as Lessor, and
Millennium Pharmaceuticals, Inc., as Lessee. Terms defined in or by reference in
the Lease not otherwise defined herein shall have the same meaning herein as
therein.
[See attached copy]
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EXHIBIT G
LOCATION OF OFF SITE PARKING SPACES
[see attached plan]
[graphic]
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EXHIBIT H
TENANT STANDARDS
[see attached copy]
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