EXHIBIT 10.70
LEASE AGREEMENT FOR THE AGILENT BOSTON BUILDING
SUBMISSION NOT AN OPTION
========================
THE SUBMISSION OF THIS LEASE FOR EXAMINATION AND NEGOTIATION DOES NOT
CONSTITUTE AN OFFER TO LEASE, A RESERVATION OF, OR OPTION FOR THE PREMISES AND
SHALL VEST NO RIGHT IN ANY PARTY. TENANT OR ANYONE CLAIMING UNDER OR THROUGH
TENANT SHALL HAVE THE RIGHTS TO THE PREMISES AS SET FORTH HEREIN AND THIS LEASE
SHALL BECOME EFFECTIVE AS A LEASE ONLY UPON EXECUTION, ACKNOWLEDGMENT AND
DELIVERY THEREOF BY LANDLORD AND TENANT, REGARDLESS OF ANY WRITTEN OR VERBAL
REPRESENTATION OF ANY AGENT, MANAGER OR EMPLOYEE OF LANDLORD TO THE CONTRARY.
LANDLORD: BPF Tech Central, LLC
TENANT: Agilent Technologies, Inc.
PREMISES: The entire building consisting of 174,585 square feet
of space located at 00 Xxxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxxxxxxx
From the Office of:
Xxxxxxx X. Xxxxxx, Esquire
Brown, Rudnick, Freed & Gesmer
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
AGILENT TECHNOLOGIES XXXXX/00 XXXXXXX XXXXXX, XXXXXXXXXX: FINAL
TABLE OF CONTENTS
ARTICLE I - BASIC LEASE PROVISIONS ......................................... 2
ARTICLE II - PREMISES ...................................................... 3
2.1 Premises ...................................................... 3
2.2 Park Common Areas ............................................. 3
2.3 Landlord's Reservations ....................................... 4
2.4 Exclusive Rooftop Rights ...................................... 4
2.5 Tenant's Signage .............................................. 4
2.6 Pad Area ...................................................... 4
ARTICLE III - CONSTRUCTION OF PREMISES; DELIVERY OF POSSESSION ............. 5
3.1 Construction of Landlord's Work ............................... 5
3.2 Ready for Tenant .............................................. 5
3.3 Delivery of Possession; Delays ................................ 6
3.4 Limited Warranties; Third PartWarranties ...................... 7
3.5 Tenant's Work ................................................. 8
3.6 Tenant Improvement Allowance .................................. 8
3.7 Excluded Costs ................................................ 9
ARTICLE IV - TERM: ......................................................... 9
4.1 Term .......................................................... 9
4.2 Early Termination Option ...................................... 9
4.3 Extension Option .............................................. 9
ARTICLE V - RENT ........................................................... 10
5.1 Base Rent ..................................................... 10
5.2 Additional Rent ............................................... 10
5.3 Payments ...................................................... 14
5.4 Deposit ....................................................... 14
5.5 Late Payments ................................................. 14
5.6 Early Occupancy ............................................... 14
ARTICLE VI - UTILITIES ..................................................... 14
6.1 Utilities ..................................................... 14
6.2 Interruption of Utilities ..................................... 15
ARTICLE VII - TRIPLE NET ................................................... 15
7.1 Triple Net Lease .............................................. 15
ARTICLE VIII- REPAIR AND MAINTENANCE ....................................... 16
8.1 Landlord's Maintenance Obligations ............................ 16
8.2 Tenant's Maintenance Obligations .............................. 16
ARTICLE IX - TENANT'S COVENANTS ............................................ 17
9.1 General Covenants ............................................. 17
ARTICLE X - ASSIGNMENT AND SUBLETTING ...................................... 18
10.1 Assignment and Subletting ..................................... 18
ARTICLE XI - ENVIRONMENTAL ................................................. 20
11.1 Environmental Covenants ....................................... 20
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ARTICLE XII - CONDITION OF PREMISES ......................................... 21
12.1 Improvements ....................................................... 21
12.2 Fixtures: Yield-Up ................................................. 22
12.3 Mechanic's Liens ................................................... 22
ARTICLE XIII - INSURANCE .................................................... 22
13.1 Insurance .......................................................... 22
13.2 Tenant's Risk ...................................................... 24
13.3 General Requirements ............................................... 24
13.4 Indemnity .......................................................... 24
13.5 Exemption of Landlord from Liability .............................. 25
13.6 Waiver of Subrogation .............................................. 25
ARTICLE XIV - CASUALTIES AND EMINENT DOMAIN .................................. 25
14.1 Damage ............................................................. 25
14.2 Termination Rights ................................................. 26
14.3 Abatement .......................................................... 26
14.4 Taking for Temporary Use ........................................... 26
14.5 Disposition of Awards .............................................. 26
ARTICLE XV - DEFAULTS AND REMEDIES .......................................... 27
15.1 Tenant's Default ................................................... 27
15.2 Damages ............................................................ 27
15.3 Landlord's Self Help ............................................... 28
15.4 Landlord's Default ................................................. 28
ARTICLE - XVI SUBORDINATION ................................................. 28
16.1 Subordination ...................................................... 28
ARTICLE XVII - MISCELLANEOUS PROVISIONS ..................................... 28
17.1 Parties Bound ...................................................... 29
17.2 Landlord's Liabilities and Additional Rights ....................... 29
17.3 Holding Over ....................................................... 30
17.4 Quiet Enjoyment .................................................... 30
17.5 No Brokerage ....................................................... 30
17.6 Certificates ....................................................... 30
17.7 Notices ............................................................ 30
17.8 No Waiver .......................................................... 30
17.9 Force Majeure ...................................................... 31
17.10 Recording .......................................................... 31
17.11 Waiver of Jury Trial ............................................... 31
17.12 Paragraph Headings ................................................. 31
17.13 Governing Law ...................................................... 31
17.14 Separability; Construction and Interpretation ...................... 31
17.15 When Lease Becomes Binding; Entire Agreement ....................... 31
17.16 Execution .......................................................... 31
17.17 Covenants and Conditions ........................................... 31
17.18 Harmony ............................................................ 31
17.19 Non-Smoking Premises ............................................... 32
ARTICLE XVIII - RIGHT OF FIRST OFFER ........................................ 32
18.1 Right of First Offer ............................................... 32
18.2 Partial Waiver of Righs; Substantial Modification of Offer ......... 32
18.3 Lease Amendment .................................................... 32
AGILENT TECHNOLOGIES XXXXX/00 XXXXXXX XXXXXX, XXXXXXXXXX; FINAL
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18.4 Complete Waiver of Rights ............................................... 32
SIGNATURE PAGE ................................................................ 34
EXHIBIT A - PLAN OF PREMISES .................................................. 35
EXHIBIT B - LEGAL DESCRIPTION OF PROPERTY ..................................... 36
EXHIBIT C - WORK LETTER ....................................................... 31
EXHIBIT D - RULES AND REGULATIONS ............................................. 50
EXHIBIT E - LIST OF TENANT'S COMPETITORS ...................................... 52
EXHIBIT F - EXCLUSIVE ROOFTOP RIGHTS .......................................... 53
EXHIBIT G - COMMENCEMENT DATE MEMORANDUM ...................................... 55
EXHIBIT H - FORM OF SUBORDINATION NON-DISTURBANCE AND ATTORNMENT AGREEMENT .... 56
EXHIBIT I - PROHIBITED EXPENSES ............................................... 65
EXHIBIT J - PERMITTED HAZARDOUS MATERIALS ..................................... 66
EXHIBIT K - FORM OF ESTOPPEL CERTIFICATE ...................................... 67
AGILENT TECHNOLOGIES XXXXX/00 XXXXXXX XXXXXX, XXXXXXXXXX; FINAL
(3)
ARTICLE I - BASIC LEASE PROVISIONS
Date of Lease: December 07, 2000
Commencement Date: The date upon which the Premises are "Ready for
Tenant" (as defmed in Section 3.2 hereof.
Rent Commencement Date: The date which is one hundred twenty (120)
days after the Premises are Ready for Tenant,
subject to extension for each day of Landlord
Delay, as hereinafter defined, and subject to
adjustment for (i) Tenant Delay as set forth in
Section 3.3(h) below and (ii) a Tenant Change
Order as set forth in Section 3(c) of the Work
Letter attached hereto.
Scheduled Delivery Date: May 15, 200l
Landlord: BPF Tech Central, LLC, a Delaware limited
liability company
Landlord's Mailing Address: 000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Tenant: Agilent Technologies, Inc., a Delaware corporation
Tenant's Mailing Address: Agilent Technologies, Inc.
Corporate Legal Department
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx, 00000
Att: General Counsel
With a copy to:
Agilent Technologies, Inc.
00 Xxxxx Xxxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx, 00000
Att: Corporate Real Estate
Premises: That certain building to be constructed by
Landlord consisting of approximately 174,585
square feet (the "Premises") as more particularly
shown on the site plan attached hereto as Exhibit
A, located on certain property known and number as
00 Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx
("Property") and more particularly described in
the legal description attached hereto as Exhibit
B. The Property is part of a two-building business
park known as Tech Central (the "Park").
Term: Ten (10) years following the Rent Commencement
Date, plus any partial month at the commencement
of the Term, unless extended or sooner terminated
as provided herein.
Extension Option: One (1) option to extend the Term for five (5)
years (the "Extension Period")
Permitted Use: For general office, engineering, design, light
equipment assembly and testing, research and
development, and any other lawful uses incidental
AGILENT TECHNOLOGIES XXXXX/00 XXXXXXX XXXXXX, XXXXXXXXXX; FINAL
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thereto, provided the same are permitted as of
right in the zoning district in which the
Property is located, and for no other use or
purpose.
Base Rent: P.S.F. Annual Rent Monthly Rent
------ ----------- ------------
Lease Years 1-5: $20.50 psf. $3,578,992.50 $298,249.38
Lease years 6-10 $24.50 psf $4,277,332.50 $356,444.38
Extension Option 100% of fair market rent as set forth in
Lease Years 1l-15 Section 4.3 hereof.
Lease Year: Full twelve (12) month period beginning on the
Commencement Date (plus any partial month after
the Commencement Date if the Commencement Date is
not the first day of a calendar month) and
thereafter, each full twelve (12) month period.
Additional Rent: All sums, other than Base Rent, due from Tenant
pursuant to the terms of this Lease, including
without limitation Park Expense Rent and
Building Expense Rent.
Property Manager: CB Xxxxxxx Xxxxx
Broker: Insignia / ESG
Tenant Improvement Allowance: Up to $3,491,700 (or $20.00 per square foot of
space in the Premises), to be paid in accordance
with the provisions of Section 3.6 hereof.
Each reference in this Lease to titles or terms contained in Article I
shall be deemed to incorporate the applicable definitions or data. The Exhibits
attached to this Lease are incorporated herein by reference.
ARTICLE II - LEASE OF PREMISES
2.1 Premises. Subject to the terms set forth herein, Landlord leases to
Tenant, and Tenant accepts from Landlord, the Premises which shall be
constructed by Landlord and Tenant pursuant to the specific provisions of the
Work Letter.
2.2 Park Common Areas. Landlord also grants to Tenant as appurtenant to
the Premises the non-exclusive right to use the Park Common Areas together with
all others entitled to use the same for their intended purposes, subject to
Section 2.5 hereof, the Declaration (hereinafter defined) and to the rules and
regulations attached hereto as Exhibit D, or such other reasonable rules and
regulations established by Landlord from time to time and made known to Tenant
in writing (collectively, the "Rules and Ragulations"). Such Rules and
Regulations shall be promulgated and enforced in a non-discriminatory manner. As
used herein, the term "Park Common Areas" shall mean all common areas and
amenities available for the common use of Park tenants, including without
limitation the common driveway, the walkways, loading areas, service areas,
drainage systems, the wastewater treatment facility, and the parking areas of
the Park, as defined and more particularly described in Section 1 of that
certain Declaration of Covenants dated as of October 10, 2000 and recorded with
the Middlesex North Registry of Deeds as Document No. 1154249, as the same may
be amended from time to time (the "Declaration"), provided Landlord shall not
amend the Declaration so as to materially and adversely affect Tenant's rights
hereunder. Parking within the Park Common Areas shall be on an unreserved,
first-come, first-served basis at no cost to Tenant. Landlord covenants that
during the Term the Park shall contain no less than 1,222 parking spaces
(equivalent to 3.76 spaces per 1,000 rentable square feet of space within the
buildings in the Park). Tenant shall comply with the provisions of the
Declaration and shall abide by the Rules and Regulations, shall cause others who
use the Park
AGILENT TECHNOLOGIES XXXXX/00 XXXXXXX XXXXXX, XXXXXXXXXX; FINAL
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Common Areas with Tenant's express or implied permission to comply with the
provisions of the Declaration and abide by the Rules and Regulations, and shall
not interfere with the rights of Landlord, or its agents, employees or
contractors (collectively, "Landlord's Affiliates") while such parties are
performing Landlord's obligations under this Lease.
2.3 Landlord's Reservations. Landlord reserves the right, from time to
time to: (a) upon at least six (6) months' notice, change the address of the
Premises or to rename the Park, provided Landlord shall not rename the Park
using the name of any tenant of the Park, or any competitor of Tenant, as more
specifically identified on Exhibit E attached hereto, as such competitors may
change from time to time, upon written notice to Landlord ("Tenant's
Competitors"), (b) install and maintain signs on the Property or within the
Park, including, without limitation, the monument sign shown on Exhibit A
attached hereto, provided that any such monument sign which provides directions
to the premises of another tenant of the Park shall also provide directions to
the Premises, (c) lease or license portions of the roof of the Premises other
than Tenant's Exclusive Rooftop Area (hereinafter defined) to third parties for
telecommunications, satellite communications, billboard or other uses, provided
Landlord shall not lease any portion of the roof to Tenant's Competitors, or to
any other tenant of the Park, and (d) possess pass keys to the Premises. In
exercising its rights hereunder, Landlord shall not materially and adversely
interfere with Tenant's use and occupancy of the Premises or Exclusive Rooftop
Area, nor materially impair Tenant's rights under the Lease.
2.4 Exclusive Rooftop Rights. Tenant shall have the exclusive right
during the Term to use a certain portion of the roof of the Premises more
particularly shown on the Rooftop Plan attached hereto as Exhibit A-l (such
area, as the same may be relocated as provided herein, is referred to herein as
the "Exclusive Rooftop Area") for purposes of installing, operating and
maintaining telecommunications equipment, antennas and related cabling
(collectively, the "Rooftop Equipment") to be used solely in connection with
Tenant's business operations, and in accordance with the terms and conditions
set forth in Exhibit F attached hereto.
2.5 Tenant's Signage. Tenant will not place on the exterior of the
Premises (including both interior and exterior surfaces of the doors and
interior surfaces of the windows) any signs, symbol, advertisement or the like
visible to the public outside of the Premises. Provided that the Tenant
specified in Article I hereof and/or a Tenant Entity (hereinafter defined) are
then leasing and occupying at least fifty percent (50%) of the Premises, Tenant
shall have the exclusive right to place (a) one (1) building sign bearing
Tenant's name and logo, on the exterior of the Premises, and (b) one (1)
monument sign bearing Tenant's name and logo within the Park at a location to be
mutually agreed upon by Landlord and Tenant, and which will be shown on Exhibit
A attached hereto. The rights granted in this Section 2.5 are granted upon the
further conditions that (i) Tenant shall comply with all applicable Laws
(hereinafter defined) and shall obtain at its expense all necessary permits or
approvals, and (ii) Landlord shall have first approved detailed plans and
specifications therefor, which approval shall not be unreasonably withheld,
conditional or delayed, which shall show, at a minimum, the size and style of
such sign, the materials to be used, and the method of affixation. Tenant shall
remove such signs (and repair any damage arising from such signs) either at the
expiration or earlier termination of this Lease, or if Tenant and/or a Tenant
Entity shall cease to lease and occupy at least fifty percent (50%) of the
Premises.
2.6 Pad Area. Tenant shall have the right, throughout the term, to
locate, install and use a generator to be located at the rear of the Premises
in a location to be set forth and approved as part of the approval of the
Construction Documents (as defined in the Work Letter). If Tenant has not yet
determined the location of the generator at the time the Construction Documents
are approved, it shall be located at the rear of the Premises in a location
reasonably approved by Landlord and Tenant.
AGILENT TECHNOLOGIES XXXXX/00 XXXXXXX XXXXXX, XXXXXXXXXX; FINAL
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ARTICLE III - CONSTRUCTION OF PREMISES; DELIVERY OF POSSESSION
--------------------------------------------------------------
3.1. Construction of Landlord's Work. Landlord has commenced
construction of the Landlord's Work (as described in the Work Letter) and is in
receipt of all required permits and approvals therefor. Subject to events of
Force Majeure and/or Tenant Delays, Landlord will complete construction of
Landlord's Work in accordance with the terms and conditions of this Article III
and the Work Letter. Landlord further agrees to complete the construction of
Landlord's Work with due diligence as soon as reasonably practicable following
the date hereof, and to use diligent efforts (i) to have the Premises "Ready for
Tenant" (as defined in Section 3.2 hereof) on the Scheduled Delivery Date, (ii)
to have Landlord's Progress Work (as defined in Section 3.2 hereof) completed by
the date sixty (60) days after the Commencement Date ("Progress Work Date") and
(iii) to have the balance of Landlord's Work completed on or before the date
sixty (60) days after the Progress Work Date ("Outside Completion Date"), time
being of the essence.
3.2 (a) Ready for Tenant. "Ready for Tenant" means the date which is
three (3) days after the date when Landlord delivers to Tenant a stamped
Certificate of Substantial Completion as to the following work from Landlord's
architect that all of the following elements of Landlord's Work ("Ready for
Tenant Work") are Substantially Complete, as hereinafter defined, in accordance
with Landlord's Plans, as defined in the Work Letter:
i. Structure: Footings, foundations, floor deck and poured slabs,
and steel structure complete (including spray-on fire-proofing of
steel members)
ii. Utilities: Major underground utilities trenched and in place
(but not in service). Temporary power available to workspace.
iii. Roof: Roof structure and membrane in-place and water-tight
(excepting perimeter flashing around incomplete wall systems)
iv. Wall System: Steel stud back-up system and drywall in-place.
Masonry brick, glass & glazing and metal panel in progress
v. Site: Temporary surfaces (either binder asphalt or gravel) such
that Premises are reasonably accessible for construction traffic
(b) Landlord's Progress Work. "Landlord's Progress Work" shall be defined
as the Substantial Completion of the following elements of Landlord's Work in
accordance with Landlord's Plans, as defined in the Work Letter, as evidenced by
a stamped Certificate of Substantial Completion as to the following work from
Landlord's architect:
i. HVAC: Roof-top units installed (but not operational). Vertical
distribution duct work in place and ready for connection to
Tenant's horizontal distribution.
ii. Fire Protection: Sprinkler risers and horizontal mains in place
and ready for connection to Tenant's branch piping.
iii. Electrical: Electrical room demised and main electrical
switchgear installed and wired
iv. Plumbing: Main water service in place. Supply risers and waste
pipes in place and ready for connection to Tenant's fixtures
v. Envelope: Masonry, glass & glazing and metal panel in-place (or
temporary enclosures as required to protect interior areas)
(c) For the purposes hereof, "Substantial Completion" or "Substantially
Complete" shall mean that the Ready for Tenant Work and/or the Landlord's
Progress Work, as the case may be, have been completed in
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accordance with the requirements of the Lease and in accordance with applicable
Laws, so that Tenant can legally occupy the Premises for the performance of
Tenant's Work in accordance with Tenant's Critical Path Schedule, as defined
in the Work Letter.
3.3. Delivery of Possession; Delays.
(a) Landlord shall use diligent efforts to have the Premises Ready for
Tenant on the Scheduled Delivery Date; however, Landlord may deliver the
Premises Ready for Tenant prior to the Scheduled Delivery Date provided landlord
gives Tenant thirty (30) days' prior notice thereof, and Landlord has previously
approved Tenant's Plans and Tenant's contractors.
(b) If the Premises are not Ready for Tenant on or before the
Scheduled Delivery Date, as extended by events of Force Majeure and/or Tenant
Delays, this Lease shall remain in full force and effect, except as otherwise
set forth in this Section 3.3. Landlord shall not be subject to any liability,
and the Commencement Date shall be delayed until the date the Premises are Ready
for Tenant. Landlord shall have a period of sixty (60) days following the
Scheduled Delivery Date (as extended for events of Force Majeure and Tenant
Delays; such period being hereinafter referred to as "Landlord's Grace Period")
to make the Premises Ready for Tenant as required hereunder without any
liability to Tenant therefor provided Landlord continues to use diligent efforts
to complete Landlord's Work and to deliver the Premises Ready for Tenant as
promptly as possible after the Scheduled Delivery Date.
(c) If on the date which is no less than thirty (30) days prior to the
Scheduled Delivery Date Landlord determines the Premises will not be Ready for
Tenant on the Scheduled Delivery Date, Landlord shall immediately so inform
Tenant in writing ("Landlord's Delay Notice"), which notice shall state the date
on which Landlord expects the Premises to be Ready for Tenant as required
hereunder (the "Revised Delivery Date"). If the date set forth in Landlord's
Delay Notice indicates that the Revised Delivery Date is within Landlord's Grace
Period, no response from Tenant shall be necessary and Landlord shall continue
to use diligent efforts to complete Landlord's Work and to deliver the Premises
Ready for Tenant on or before the Revised Delivery Date. Notwithstanding
anything to the contrary contained herein, if Landlord's Delay Notice indicates
that the Revised Delivery Date falls outside of Landlord's Grace Period but
before October 15, 2001 ("Rent Penalty Date"), Landlord shall continue to use
diligent efforts to complete Landlord's Work and to deliver the Premises Ready
for Tenant on or before the Revised Delivery Date and, upon the Rent
Commencement Date, Tenant shall be credited with one day's Base Rent for each
day of delay beyond Landlord's Grace Period not caused by Force Majeure or
Tenant Delays. Notwithstanding anything to the contrary contained herein, if the
date set forth in Landlord's Delay Notice indicates that the Revised Delivery
Date falls after the Rent Penalty Date but before May 15, 2002, Tenant must
notify Landlord in writing within ten (10) days after receipt of Landlord's
Delay Notice, time being of the essence, that it elects either to (i) terminate
this Lease if Landlord fails to deliver the Premises Ready for Tenant on or
before the Rent Penalty Date, or (ii) accept delivery of possession of the
Premises on the Revised Delivery Date (provided the same are delivered Ready for
Tenant as required hereunder) and receive on the Rent Commencement Date a rent
credit equal to two (2) days' Base Rent for each day of delay beyond Landlord's
Grace Period not caused by Force Majeure or Tenant Delays. If Tenant elects
option (i) in the previous sentence and Landlord fails to deliver the Premises
Ready for Tenant on or before the Rent Penalty Date, this Lease shall
automatically terminate as of the Rent Penalty Date and the parties shall
thereafter have no further obligation to each other. If Tenant elects option
(ii) above and Landlord thereafter fails to deliver the Premises Ready for
Tenant on or before the Revised Delivery Date, Landlord shall deliver to Tenant
an updated Landlord Delay Notice in which Landlord indicates a new Revised
Delivery Date. In such event, the process set forth in this paragraph shall
recommence provided that the new Rent Penalty Date shall be extended to the date
which is ninety (90) days after the prior Rent Penalty Date. If Tenant fails
timely to respond to any Landlord Delay Notice, Tenant shall be deemed to have
elected option (ii) above and this Lease shall continue in full force and effect
and Landlord shall diligently pursue its obligations hereunder until the
Premises are Ready for Tenant.
(d) Notwithstanding anything to the contrary set forth in this Lease,
if Landlord fails to deliver the Premises Ready for Tenant on or before May 15,
2002 for any reason whatsoever other than a Tenant Delay, Tenant shall have the
right to terminate this Lease by written notice to Landlord delivered on or
before May 20, 2002, time being of the essence
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(e) If Landlord's Progress Work is not Substantially Completed, as
defined in Section 3.2(c) above, on or before the Progress Work Date, as
extended by events of Force Majeure and/or Tenant Delays, then each day between
the Progress Work Date, as so extended, and the date that Landlord Substantially
Completes the Landlord's Progress Work shall be deemed a "Landlord Delay" for
the purposes of determining the Rent Commencement Date. In addition, if all of
Landlord's Work is not Substantially Completed, as defined in the Work Letter,
on or before the Outside Completion Date, as extended by events of Force Majeure
and/or Tenant Delays, then each day between the Outside Completion Date, as so
extended, and the date that Landlord Substantially Completes the Landlord Work
shall be deemed a "Landlord Delay" for the purposes of determining the Rent
Commencement Date.
(f) For purposes hereof, "Tenant Delay" means any act or omission of
Tenant or Tenant's agents, contractors, servants, employees, customers,
licensees, or invitees (collectively, "Tenant's Affiliates") that actually
delays the date on which the Premises would be Ready for Tenant, including,
without limitation: (1) Tenant's failure to furnish information or approvals
within any time period specified in the Lease, including the failure to prepare
or approve preliminary or final plans by any applicable due date; (2) delays
arising out of any Tenant Change Orders of which Landlord has advised Tenant in
writing pursuant to Paragraph 3(c) of the Work Letter; or (3) performance of
Tenant's Work or any other work in the Premises by Tenant or Tenant's
contractor(s) during the performance of Landlord's Work, provided that Landlord
notifies Tenant in writing of such delay at the time of such delay.
(g) If, after the date the Premises are Ready for Tenant but prior to
the Progress Work Date, performance of Landlord's Work or any other work in the
Premises by Landlord or Landlord's contractor(s) causes Tenant's Work to be
completely halted for one (1) day or more (each such day being a "Tenant Halt
Day"), then each consecutive Tenant Halt Day after the first (1/st/) such Tenant
Halt Day shall be deemed a Landlord Delay for the purposes of determining the
Rent Commencement Date. Notwithstanding the foregoing, if, prior to the Progress
Work Date, there are two (2) non-consecutive Tenant Halt Days, then each Tenant
Halt Day thereafter, whether or not consecutive, shall be deemed a Landlord
Delay for the purpose of determining the Rent Commencement Date. For example,
if, prior to the Progress Work Date, there are 4 consecutive Tenant Halt Days in
a week, followed by 3 consecutive Tenant Halt Days two weeks thereafter,
followed by 3 consecutive Tenant Halt Days three weeks thereafter, then, for
the purposes of determining the Rent Commencement Date, there would be eight (8)
days of Landlord Delay (i.e., 3 days for the first such occurrence, plus 2 days
for the second such occurrence, plus 3 days for the third such occurrence). If,
after the Progress Work Date, there are any Tenant Halt Days, each such Tenant
Halt Day shall be deemed a Landlord Delay for the purposes of determining the
Rent Commencement Day. In addition, if, after the date the Premises are Ready
for Tenant, performance of Landlord's Work or any other work in the Premises by
Landlord or Landlord's contractor(s) delays or interrupts performance of any
component of Tenant's Work which is identified as then being on Tenant's
Critical Path Schedule, as defined in the Work Letter, for more than three (3)
consecutive days, then each day from and after the third (3/rd/) such day of
delay or interruption shall be deemed a Landlord Delay for the purposes of
determining the Rent Commencement Date.
(h) Notwithstanding anything to the contrary contained herein, if the
Premises are not Ready for Tenant by the Scheduled Delivery Date due to a Tenant
Delay, the Rent Commencement Date shall be deemed to be one hundred twenty (120)
days after the date on which the Premises would have been Ready for Tenant if
not for the Tenant Delay.
3.4 Limited Warranties; Third Party Warranties. Provided Tenant has not
breached its covenants in Section 8.2 hereof, Landlord hereby warrants
(collectively, the "Limited Warranties") that for a period of twelve (12) months
from the Rent Commencement Date, the entire Premises (other than the specific
portions or systems thereof covered by the Third-Party Warranties) shall be free
of defects in design, construction, workmanship and materials. Landlord shall
procure all manufacturer's and contractor's warranties provided in connection
with Landlord's Work (collectively, the "Third-Party Warranties") and shall
provide copies thereof to Tenant. Landlord acknowledges and agrees that Tenant
is a third-party beneficiary of the Third-Party Warranties and shall have the
right to enforce the Third-Party Warranties and otherwise seek recourse thereto,
subject to the terms and conditions of the Third-Party Warranties. Neither
Landlord nor Tenant shall undertake any act or omission which would result in
any Third-Party Warranty being diminished, terminated or voided.
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3.5 Tenant's Work. Promptly following the Commencement Date, Tenant shall
perform Tenant's Work, at Tenant's sole cost and expense, but subject to
reimbursement by Landlord pursuant to Section 3.6 below of the Tenant
Improvement Allowance, in accordance with the provisions of the Work Letter.
3.6 Tenant Improvement Allowance. Tenant shall be entitled to receive the
Tenant Improvement Allowance specified in Article I hereof to reimburse Tenant
for the costs and expenses incurred in connection with the construction of
Tenant's Work other than so-called "Excluded Costs" defined below. The Tenant
Improvement Allowance shall be paid in two installments, the first of which
shall be paid at such time as at least fifty percent (50%) of Tenant's Work has
been substantially completed. Such portion of Tenant's Work shall be deemed
substantially completed when Tenant submits to Landlord (y) a letter from
Tenant's Architect stating that at least fifty percent (50%) of Tenant's Work
has been completed in substantial compliance with the Tenant's Plans, and (z)
reasonably detailed invoices (including all invoices and requisitions of all
contractors and subcontractors) or other reasonably satisfactory evidence of
costs incurred by Tenant in performance of the Tenant's Work (other than
Excluded Costs) together with lien releases in form and substance reasonably
satisfactory to Landlord from all suppliers of labor, materials or other
services for the portion of Tenant's Work performed to date. Upon substantial
completion of all of Tenant's Work, Tenant shall submit to Landlord the
following documentation in order to be eligible to receive the final
installment of the Tenant Improvement Allowance (the "Final TIA Installment"):
(i) a final permanent certificate of occupancy for the Premises, (ii) invoices
(including all invoices and requisitions of all contractors and subcontractors)
or other reasonably satisfactory evidence of costs incurred by Tenant in
performance of the Tenant's Work (other than the Excluded Costs), (iii) lien
releases in form and substance reasonably satisfactory to the Landlord from all
suppliers of labor, materials or other services, (iv) a final Certificate of
Substantial Completion from Tenant's Architect certifying to the completion of
the Tenant's Work in substantial compliance with the Tenant's Plans, and (v) a
complete set of Record Drawings, as defined in the Work Letter, for Tenant's
Work. Landlord shall have no obligation to pay any portion of the Tenant
Improvement Allowance if the Lease is terminated as a result of a Default
hereunder. Each installment of the Tenant Improvement Allowance shall be paid
to Tenant within thirty (30) days after receipt of all of the documentation
required herein. Notwithstanding the foregoing, if Tenant fails to obtain a
temporary or final certificate of occupancy permitting Tenant to legally occupy
the Premises as a result of a defect in Landlord's Work, but satisfies the
remainder of the foregoing requirements, Tenant shall be entitled to receive the
Tenant Improvement Allowance, and Tenant shall promptly obtain such certificate
of occupancy after Landlord cures such defect in accordance with Section 8.1
hereof. In addition, as to that portion of such delays occurring after the
Outside Completion Date, each day of delay between the date that Tenant is
denied such certificate of occupancy as a result of a defect in Landlord's Work
and the date that Tenant obtains a certificate of occupancy after Landlord cures
such defect shall be deemed a Landlord Delay for the purposes of determining the
Rent Commencement Date. If Landlord fails to timely pay the Tenant Improvement
Allowance in the manner set forth herein, Tenant shall give Landlord (and the
holder of any existing or future mortgage, deed of trust, xxxxxxxxx, or similar
instrument covering the Premises (each a "Mortgagee") of which Tenant has
received written notice) written notice of such failure, and if Landlord has not
paid the Tenant Improvement Allowance in accordance with this Section 3.6 within
thirty (30) days after receipt of such notice from Tenant and following the
giving of a second written notice by Tenant and Landlord's failure to cure
within five (5) days thereafter, interest shall accrue on such unpaid amount at
the rate of the "Prime Rate" plus four (4%) (the "Default Rate"), and, if there
remains any amounts unpaid by Landlord to Tenant hereunder after interest has
commenced to accrue for at least thirty (30) days and after Tenant gives a third
written notice to Landlord and its Mortgagee of whom Tenant has been provided
notice and Landlord fails to cure within a period of five (5) days thereafter,
then Tenant shall be entitled to offset the unreimbursed costs, together with
interest as aforesaid, against fifteen percent (15%) of the monthly Base Rent
due hereunder until the Tenant Improvement Allowance and all accrued interest
thereon shall have been reimbursed in full. For purposes hereof, the "Prime
Rate" shall mean the rate equal to the prime commercial rate from time to time
established by the Fleet National Bank, or its successor.
3.7 Excluded Costs. The Tenant Improvement Allowance shall, subject
to clause (c)(i) below, be applied only to the cost of that portion of Tenant's
Work performed by a general contractor and its subcontractors that results in
physical improvements to the Premises which are deemed fixtures once installed
(e.g. walls, ceilings, doors, floor & wall coverings, millwork, HVAC, plumbing
and electrical work). In no event shall Landlord be required to (a) apply any
unused portion of the Tenant Improvement Allowance toward Base Rent or
Additional Rent, (b) apply any unused portion of the Tenant Improvement
Allowance to changes to Tenant's Work
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after Landlord has paid the Final TIA Installment in accordance with Section 3.6
above or (c) provide any portion of the Improvement Allowance to reimburse
Tenant for the following (even if specifications for such items were included
in Tenant's Plans approved by Landlord): (i) architectural design and
engineering costs, construction/project management fees, consultant's fees or
other "soft" costs incurred in connection with planning changes in Tenant's
Work to the extent the aggregate of such costs exceeds $3.00 per square foot;
(ii) furniture, including the cost of installation and/or relocation, (iii)
telecommunications equipment, including the cost of installation and
cabling/wiring cost, (iv) computer equipment, including the cost of installation
and cabling/wiring cost, (v) artwork and miscellaneous decorations, (vi)
de-mountable or temporary partitions, (vii) laboratory, light manufacturing or
other trade fixtures; (viii) signs; (ix) supplemental HVAC systems and
equipment, generators or other equipment made a fixture to the Premises but to
be removed by Tenant at the end of the Lease; (x) other specialty improvements
which are unique to Tenant's business and may be removed by Tenant at the end of
the Term; and (xi) any portion of Tenant's Work performed by Tenant or a Tenant
Entity (the items listed in subsections (i) through (xi) collectively referred
to as the "Excluded Costs").
ARTICLE IV - TERM
-----------------
4.1 Term. Tenant shall have and hold the Premises for a term commencing on
the Commencement Date (plus any partial month after the Commencement Date if
the Commencement Date is not the first day of a calendar month) for the Term
unless sooner terminated as set forth in Sections 4.2 or Article XIV hereof or
extended pursuant to Section 4.3 hereof. Promptly after commencement of the
Term, Landlord and Tenant shall execute a commencement date memorandum in the
form attached hereto as Exhibit G. Tenant shall have access to the Premises
twenty-four (24) hours per day, seven (7) days per week throughout the Term and
any extension thereof, subject only to the terms of this Lease and the Work
Letter.
4.2 Early Termination Option. Notwithstanding anything to the contrary
contained herein, Tenant may, at its sole discretion, terminate this Lease
effective as of the last day of the seventh (7/th/) Lease Year (the "Early
Termination Date"), provided Tenant delivers written notice of such termination
not later than the last day of the sixth (6/th/) Lease Year and pays to
Landlord, not later than sixty (60) days prior to the Early Termination Date, a
termination fee in the amount of Four Million One Hundred Ninety Thousand and
No/l00 Dollars ($4,190,000). If Tenant timely exercises this early termination
option, pays the termination fee in full and otherwise performs all of its
obligations under this Lease, including without limitation payment of all Base
Rent and Additional Rent due through the Early Termination Date, and surrenders
the Premises in the condition required hereunder, then this Lease shall
terminate as of the Early Termination Date, and thereafter neither Tenant nor
Landlord shall have any further rights or obligations under this Lease, except
as otherwise expressly provided herein.
4.3 Extension Option. (a) Tenant shall have the Extension Option referred
to in Article I above, provided that (a) Tenant provides Landlord with written
notice of Tenant's interest in exercising such option at least three hundred
sixty-five (365) days prior to the expiration of the Term ("Tenant's Interest
Notice"), (b) no uncured Default (hereinafter defined) shall exist at the time
of Landlord's receipt of Tenant's Interest Notice, or at the commencement of the
Extension Period, and (c) the Tenant named in Article I above and/or a Tenant
Entity (hereinafter defined) then leases and occupies at least fifty percent
(50%) of the Premises. Except for the amount of Base Rent (which is to be
determined as hereinafter provided), all of the terms, covenants, conditions and
provisions set forth herein shall be applicable to the Extension Period. This
Extension Option, which is personal to the original Tenant specified in Article
I hereof or a Tenant Entity, may not be severed from this Lease or separately
sold, assigned, or otherwise transferred. Time is of the essence with respect to
this Section 4.3.
(b) If Tenant delivers Tenant's Interest Notice in the manner set forth
above, Landlord shall, within ten (10) business days of receipt of Tenant's
Interest Notice, notify Tenant in writing ("Landlord's Rent Notice") of its
determination of the fair market rent for the Premises for the Extension Period.
Landlord shall base its determination on comparable lease extensions for
comparable property in the area in which the Property is located, taking into
account all relevant factors including, without limitation, concessions then
being granted by landlords. The area in which the Property is located shall be
deemed to be the Route 495/Route 2 submarket, further defined as the Towns of
Acton, Boxborough, Westford and Littleton (the "Property Vicinity"). Landlord's
determination shall be based upon the Premises as improved, whether such
improvements were made by Landlord or Tenant. Notwithstanding the foregoing,
Base Rent during such Extension Period shall not be less than seventy-five
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(75%) percent of the Base Rent for the year immediately preceding the
commencement of such Extension Period. Tenant shall have twenty (20) days from
the date of said Landlord's Rent Notice to notify Landlord in writing ("Tenant's
Acceptance Notice") whether Tenant will exercise the Extension Option. If Tenant
does not deliver Tenant's Acceptance Notice within said twenty (20) day period,
then Tenant shall be deemed to have waived its right to such Extension Period
and shall have no further right to any extension option. If Tenant timely
delivers Tenant's Acceptance Notice, then Landlord's determination of fair
market rent shall be binding upon the parties hereto, unless Tenant's Acceptance
Notice includes a statement that Tenant does not accept Landlord's determination
of fair market rent and wishes to proceed to arbitration ("Tenant's Arbitration
Notice").
(c) In such event, within five (5) days after receipt by Landlord of
Tenant's Arbitration Notice, which includes a demand for arbitration, Tenant and
Landlord shall each notify the other, in writing, of their respective selections
of an appraiser (respectively, "Landlord's Appraiser" and "Tenant's Appraiser").
Landlord's Appraiser and Tenant's Appraiser shall then jointly select a third
appraiser (the "Third Appraiser"). All of the appraisers so selected shall be
individuals with at least five (5) year's commercial appraisal experience in the
area in which the Premises are located, shall be members of the Massachusetts
Appraisal Institute (M.A.I.), and, in the case of the Third Appraiser, shall not
have acted in any capacity for either Landlord or Tenant within five (5) years
of his or her selection. Said appraisers shall determine the fair market rent
for the Premises for the Extension Period in accordance with the requirements
and criteria set forth in the preceding paragraph, employing the method commonly
known as "Baseball Arbitration," whereby Landlord's Appraiser and Tenant's
Appraiser set forth their determination of fair market rent as defined above,
and the Third Appraiser must select between the two appraisals (it being
understood that the Third Appraiser shall be expressly prohibited from selecting
a compromise figure). The greater of seventy-five (75%) percent of Base Rent for
the year immediately preceding commencement of the Extension Period and the fair
market rent selected by the Third Appraiser shall be Base Rent for the Extension
Period. The Third Appraiser shall render a decision within twenty-five (25) days
after the selection of the Third Appraiser and said decision shall be binding on
both Landlord and Tenant. Each party shall bear the cost of its own appraiser.
The cost of the Third Appraiser shall be paid one-half by Landlord and one-half
by Tenant.
ARTICLE V - RENT
----------------
5.1 Base Rent. On or before the Rent Commencement Date, Tenant shall pay
to Landlord its first monthly installment of Base Rent, Building Expense Rent
(hereinafter defined) and Park Expense Rent (hereinafter defined), which shall
consist of Base Rent, Building Expense Rent, and Park Expense Rent for both the
first full month of the Term after the Rent Commencement Date and a pro rated
amount (on a per diem basis) of Base Rent, Building Expense Rent, and Park
Expense Rent for any partial month in which the Rent Commencement Date occurs.
Thereafter, Tenant shall pay Base Rent to Landlord monthly, in advance, not
later than the first day of each calendar month. Any other Additional Rent due
under the terms of this Lease shall be paid when due.
5.2 Additional Rent. (a) Tenant shall pay, as Additional Rent hereunder
Building Expense Rent (hereinafter defined), and its Pro Rata Share (hereinafter
defined) of Park Expenses (hereinafter defined) in accordance with the
provisions of this Section 5.2.
(b) Definitions. For purposes hereof, the following terms shall have the
following definitions:
(i) "Building Expenses" shall be defined to include all costs of
operation, maintenance and repair of the Premises (each such service, a
"Building Service"), subject to Tenant's right to perform such services pursuant
to Section 8.2(b) hereof including without limitation the following: (1)
premiums for property insurance carried by Landlord with respect to the Premises
as detailed in Section 13.1(c) below; (2) compensation and all fringe benefits,
workers' compensation insurance premiums and payroll taxes paid by Landlord to,
for or with respect to a11 persons below the grade of property manager actually
engaged in the operating or maintaining of the Premises; (3) cost of building
and cleaning supplies, building supplies, and equipment; (4) cost of
maintenance, cleaning (including window cleaning, caulking and waterproofing)
and repairs (other than repairs for which Landlord has received reimbursement
from contractors under guaranties); (5) payments under service contracts with
independent contractors, including legal, accounting and other professional
fees, which contracts shall be at arm's length and at competitive rates; (6)
subject to the next succeeding sentence, any costs (including capital costs and
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financing charges) of improvements to the Premises that, based upon engineering
studies performed by Landlord, are designed to increase safety or reduce or
limit increases in Building Expenses, are required to comply with any law
imposed after the initial completion of the Premises; (7) the cost of performing
Landlord's maintenance obligations set forth in Section 8.1 hereof, (8) all
other reasonable or necessary expenses paid in connection with the operation,
maintenance, replacement and repair of the Premises and properly chargeable
against income, and (9) a fee for management services for the Park of not
greater than two percent (2%) of the net revenues received by Landlord from the
lease of the Premises. Any of the above services may be performed by Landlord or
its affiliates, provided that fees for the performance of such services shall be
reasonable and competitive with fees charged by unaffiliated entities for the
performance of such services in comparable buildings. If, during the Term of
this Lease, Landlord shall make capital improvements to the Premises pursuant to
subsection (6), (7) or (8) above, the total cost of which is not properly
includable in Building Expenses for the calendar year in which they were made,
there shall nevertheless be included in such Building Expenses for the calendar
year in which they were made and in Building Expenses for each succeeding
calendar year the annual charge-off of the costs of such capital improvements.
Annual charge-off shall be determined by dividing the original cost of the
capital improvements plus an interest factor, reasonably determined by Landlord,
as being the interest rate then being charged for long-term mortgages by
institutional leaders on like properties within the locality in which the
Premises is located, by the number of years of useful life of the capital
improvement (on a straight-line basis); and the useful life shall be determined
reasonably by Landlord in accordance with generally accepted accounting
principles and practices in effect at the time of making such capital
improvements, consistently applied. Notwithstanding the foregoing, Building
Expenses shall not include any Prohibited Expenses set forth on Exhibit H
attached hereto.
(ii) "Park Expenses" shall mean the aggregate costs or
expenses reasonably incurred by Landlord with respect to the operation,
administration, repair, maintenance and management of the Park (each such
service, a "Park Expense"), including, without limitation: (A) the cost of
services, utilities, materials and supplies furnished or used in the operation,
repair, maintenance, management, and protection of the Park Common Areas,
including without limitation, fees, if any, imposed upon Landlord, or charged to
the Park, by the state or municipality in which the Park is located on account
of the need of the Park for increased or augmented public safety services, and
also including all expenses directly related to employment of personnel below
the grade of property manager performing services in connection with the
operation, repair, maintenance, management and protection of the Park Common
Areas, and their respective mechanical systems, including, without limitation,
the waste water treatment system serving the Park; (B) the cost of replacements
for tools and other similar equipment used in the repair, maintenance, and
protection of the Park Common Areas, provided that, in the case of any such
equipment used jointly on other property of Landlord, such costs shall be
allocated among the buildings constituting the Park on a square footage basis;
(C) premiums for commercial general liability insurance with such coverages and
limits as shall from time to time be required by any person, firm or other
entity that it holds a mortgage or a ground lease which includes the Park; (D)
the costs of maintaining, repairing and replacing (if necessary) the common
monument sign for the Park; (E) subject to the next succeeding sentence, any
capital improvements made to the Park Common Areas that, based upon engineering
studies performed by Landlord, are designed to increase safety or reduce or
limit increases in Park Expenses; (F) costs for electricity, water and sewer use
charges, and other utilities supplied to the Park and not separately metered to
the buildings comprising the Park or the tenants thereof; and (G) all Taxes
(hereinafter defined) assessed against the Park; and, (H) amounts paid to
independent contractors for services, materials and supplies furnished for the
operation, repair, maintenance, and protection of the Premises and/or Park
Common Areas. Park Expenses shall not include any Prohibited Expenses,. If,
during the Term of this Lease, Landlord shall make capital improvements to the
Park Common Areas which are designed to increase safety or reduce or limit Park
Expenses, based upon engineering studies performed by Landlord, the total cost
of which is not properly includable in Park Expenses for the calendar year in
which they were made, there shall nevertheless be included in such Park Expenses
for the calendar year in which they were made and in Park Expenses for each
succeeding calendar year the annual charge-off of the costs of such capital
improvements. Annual charge-off shall be determined by dividing the original
cost of the capital improvements plus an interest factor, reasonably determined
by Landlord, as being the interest rate then being charged for long-term
mortgages by institutional leaders on like properties within the locality in
which the Park is located, by the number of years of useful life of the capital
improvement (on a straight-line basis); and the useful life shall be determined
reasonably by Landlord in accordance with generally accepted accounting
principles and practices in effect at the time of making such capital
improvements, consistently applied.
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(iv) "Pro Rata Share" shall be a fraction, the numerator of
which is the square footage of the Premises and the denominator of which is the
aggregate square footage of both buildings within the Park. Tenant's Pro Rata
Share of Park Expenses shall not change unless the square footage of the
Premises or the Park is changed by a duly executed written amendment to this
Lease.
(v) "Taxes" shall mean all real estate taxes, betterments,
assessments, sales or use taxes, and other public charges on or relating to the
Park including, without limitation, the Premises, other improvements, land and
personalty, taxes on rentals, and taxes in addition to or in lieu of existing
taxes, foreseen and unforeseen, ordinary and extraordinary, and all reasonable
costs related to actual attempts to secure a refund or abatement, less the
amount of any refund or abatement so obtained. "Taxes" shall not include
interest, late fees, or penalty charges payable by Landlord nor inheritance,
succession, estate, franchise, excise, transfer, income, or succession taxes, or
so-called linkage payments; provided however, that if at any time during the
Term the present system of ad valorem taxation of real property shall be changed
so that as a substitute for, or in addition to, the whole or any part of the ad
valorem tax on real property, there shall be assessed on Landlord any tax
including a capital levy or other tax on the gross rents received with respect
to the Park, or a federal, state, county, municipal, or other local income,
franchise, excise or similar tax, assessment, levy or charge (distinct from any
now in effect in the jurisdiction in which the Park is located), and whether or
not now customary or in the contemplation of the parties, measured by or based,
in whole or in part, upon any such gross rents, then any and all of such taxes,
assessments, levies or charges, to the extent so measured or based, shall be
deemed to be included within the term "Taxes". Notwithstanding anything to the
contrary contained herein, Landlord agrees that to the extent permitted by the
taxing authority, it shall elect to pay betterments or assessments over the
longest period allowed by law.
(c) Payment of Building Expense Rent and Park Expense Rent.
Building Expense Rent and Park Expense Rent shall be paid to Landlord monthly at
the same time and in the same manner as Base Rent is paid in the amount which
Landlord estimates, from time to time, but no more often than annually will
represent Tenant's required payments of Building Expense Rent and Park Expense
Rent. Landlord shall deliver to Tenant (i) a reasonably detailed statement
showing the actual Building Expenses and Park Expenses for the prior calendar
year (the "Expense Statement"), (ii) tax statements from the taxing authorities
covering all tax parcels comprising the Park, and (iii) a calculation showing
the actual amount of Building Expense Rent and Park Expense Rent owed by Tenant,
within ninety (90) days of the end of each calendar year (provided Landlord's
failure to so notify Tenant shall not reduce Tenant's liability when such notice
is issued, except if Landlord fails to include any item of Building Expenses or
Park Expenses (as the case may be) on the Expense Statement for two (2) Lease
Years or otherwise within two (2) years after the end of the calendar year in
which such expense was incurred, Tenant shall have no obligation to reimburse
Landlord for said item of Building Expenses or Park Expenses), and any excess
paid by Tenant shall be applied to Tenant's next Building Expense Rent or Park
Expense Rent payment (as the case may be) or reimbursed within thirty (30) days
of such determination at the end of the Term, and any deficiency shall be paid
within thirty (30) days of such notice. Building Expense Rent and Park Expense
Rent shall be pro rated on a per diem basis for any partial month during the
Term hereof.
(d) Right to Contest Taxes. Notwithstanding anything to the
contrary herein contained, if Tenant deems that any portion of Taxes included
within Park Expense Rent is excessive or illegal, Tenant shall have the right to
contest such tax by appropriate legal or administrative proceeding, provided
Tenant shall not withhold payment of any component of Park Expense Rent as a
result of such dispute but shall pay the same to Landlord under protest. Any
contest, whether before or after payment, may be made in the name of Landlord or
Tenant or both as Tenant shall determine, but if Landlord is at such time
contesting such taxes, Tenant's rights shall only be to join with Landlord in
such action or proceeding. If requested by Tenant, Landlord shall participate
actively in any such contest (but only if all expenses and costs incurred or
suffered by Landlord, including without limitation fees of attorneys and/or
accountants, shall be paid by Tenant), but Tenant shall be entitled to any
refund of any such tax, assessment or charge or penalty or interest thereon
which may have been paid by Tenant, or by Landlord and reimbursed by Tenant to
Landlord.
(e) Tenant's Audit Right. Provided (1) there is no uncured Default
hereunder, and (2) Tenant has paid the Building Expense Rent and Tenant's Pro
Rata Share of the Park Expense Rent in question, Tenant shall have the right,
exercisable not more than once each Lease Year, to examine Landlord's books and
records relating to the prior Lease Year only with respect to both Park
Expenses and Building Expenses. Such examination shall be
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performed (i) at Landlord's office, (ii) at Tenant's sole cost and expense,
(iii) upon prior reasonable written notice, (iv) during normal business hours,
and (v) within one hundred twenty (120) days after receipt of the Expense
Statement or supplementary invoices or notices, as the case may be. In the event
Tenant's examination reveals a discrepancy, Tenant shall notify Landlord of such
discrepancy in writing, and, if such discrepancy is mutually agreed upon,
Landlord shall within thirty (30) days of such determination, reimburse Tenant
for the amount of any overpayment. If Tenant so notifies Landlord of a
discrepancy and such discrepancy is not mutually agreed upon within sixty (60)
days after Landlord's receipt of Tenant's written notice thereof, either party
may refer such dispute to arbitration pursuant to Section 5.2(g) below by
sending the other party written notice of arbitration (the "Arbitration
Notice"), which notice shall contain a detailed list of each item in dispute and
the reason(s) for such dispute within said sixty (60) day period.. If Tenant's
examination of Landlord's books and records reveals an overcharge of more than
five percent (5%), Landlord shall, within thirty (30) days after receipt of a
written invoice, reimburse Tenant for the reasonable costs of such audit. In
conducting such audit, Tenant must use an independent certified public
accountant experienced in auditing operating costs, which accountant shall be
paid on an hourly basis (and not on a contingency or success fee basis). Such
audit shall be conducted in accordance with generally accepted rules of auditing
practices.
Supplementing Tenant's right to audit pursuant to the terms and
limitations set forth herein, Tenant shall not be entitled to audit Landlord's
books and records that apply to any prior Expense Statement or to any calendar
year other than the year covered by the most recent Expense Statement delivered
to Tenant unless Landlord and Tenant agreed upon the discrepancy alleged by
Tenant or, if such discrepancy was settled by arbitration pursuant to Section
5.2(g) below, Tenant was the prevailing party in whole or in material part in
such arbitration, and then solely Tenant's additional audit rights shall apply
solely to: (i) for the year immediately preceding the calendar year for which
Tenant prevailed in such audit (the "Prior Year"); and (ii) the same specific
item that was the subject of the previous audit in which Tenant prevailed, but
in no event shall Tenant be entitled to audit Landlord's books and records with
respect to Building Expenses or Park Expenses for any period prior to the Prior
Year. In addition, once having conducted an audit of Landlord's books and
records with respect to a specific item in any year, Tenant shall have no right
to conduct another audit of the same specific item for such year.
This audit right is personal to the Tenant specified in Article I
hereof or a Tenant Entity and is not otherwise transferable.
(f) Arbitration. Any arbitration requested by either party pursuant to
the specific provisions of Section 5.2(f) of the Lease, shall be governed by the
rules and procedures of the American Arbitration Association, as modified by
this Section 5.2(g). Unless otherwise agreed upon by the parties, the
arbitration shall be held in Boston, Massachusetts. Within thirty (30) days
after delivery of the Arbitration Notice, the parties shall each appoint one
certified public accountant licensed and with not less than ten (10) years'
continuous accounting experience in the Commonwealth of Massachusetts ending not
more than ten (10) years prior to the date of the Arbitration Notice. Within ten
days after such appointment and notice, such accoutants shall appoint a third
person (together with the first two accountants, collectively, "Arbitration
Panel") who is also an accountant meeting the requirements of this Section
5,2(g). In the event that any party fails to timely designate an accountant,
such dispute shall automatically be deemed resolved against such party. The
Arbitration Panel shall have no authority to change, add to, or subtract from
the Lease. The Arbitration Panel shall not have the power to assess or award
punitive or exemplary damages. All aspects of this arbitration provision shall
be interpreted in accordance with, and the Arbitration Panel shall apply and be
bound to follow, Massachusetts substantive law. A hearing record shall be kept
if either party so elects and the requesting party shall bear the expense of
such record. The Arbitration Panel shall execute and acknowledge a binding award
in writing, including factual findings and the reasons on which the award is
based, and cause a copy of the award to be simultaneously delivered to both
parties. The costs of such arbitration (if any) shall be paid to the prevailing
party in the arbitration if and to the extent awarded by the Arbitration Panel.
The pendency of determination by an arbitration proceeding pursuant to this
Section 5.2(g) shall not operate to relieve any party from its obligations
under this Lease. Other than any action necessary to enforce the award of the
Arbitration Panel, the parties agree that the provisions of this Section 5.2(g)
are a complete defense in any court or before any administrative tribunal with
respect to any dispute, controversy, or claim arising under or in connection
with Section 5.2(f) of this Lease. If a court proceeding to stay litigation or
compel arbitration is necessary, the party who unsuccessfully opposes such
proceedings shall pay all associated costs, expenses, and attorneys' fees which
are reasonably incurred by the other party.
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NOTICE: BY INITIALING IN THE SPACE BELOW YOU ARE AGREEING TO HAVE ANY
DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THE "ARBITRATION OF DISPUTES"
PROVISION DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY MASSACHUSETTS LAW AND
YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN
A COURT OR JURY TRIAL. BY INITIALING IN THE SPACE PROVIDED BELOW YOU ARE GIVING
UP YOUR JUDICIAL RIGHTS TO DISCOVERY AND APPEAL, UNLESS THOSE RIGHTS ARE
SPECIFICALLY INCLUDED IN THE "ARBITRATION OF DISPUTES" PROVISION. IF YOU REFUSE
TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED
TO ARBITRATE UNDER THE AUTHORITY OF THE MASSACHUSETTS CODE OF CIVIL PROCEDURE.
YOUR AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY.
WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT DISPUTES
ARISING OUT OF THE MATTERS INCLUDED IN SECTION 5.2(f) OF THIS LEASE TO NEUTRAL
ARBITRATION.
__________________ ___________________
INITIALS INITIALS
5.3 Payments. Tenant shall pay all Base Rent, Additional Rent and
costs of every kind relating to the Premises without notice, demand, setoff,
deduction, counterclaim, defense or abatement, except as specifically provided
in the Lease.
5.4 Security Deposit. Intentionally Omitted.
5.5 Late Payments. Because actual damages resulting from late payments
and dishonored checks are difficult to determine, if more than once in any Lease
Year, (i) Base Rent and/or any Additional Rent is not received by Landlord or
otherwise paid by the due date, or (ii) Tenant's check is not honored, Landlord
may charge interest from the date on which the grace period set forth in Section
15.1 expires, if applicable, or from the due date if such grace period is not
applicable, at the Default Rate on all amounts not paid or received by Landlord.
If late payment by Tenant occurs during more than two (2) consecutive months or
more than five (5) times in the aggregate during the initial Lease Term,
Landlord may in its sole discretion apply a late charge of five percent (5%) of
all then-delinquent and any future delinquent amounts due hereunder.
5.6 Early Occupancy. Notwithstanding the fact that Tenant's obligation
to pay Base Rent, Building Expense Rent and Park Expense Rent shall not commence
until the Rent Commencement Date, all other obligations hereunder (including
Tenant's obligation to pay utilities, electricity and the like and to insure the
Premises) shall commence upon the earlier of (i) the date that Tenant commences
Tenant's Work, or (ii) the Commencement Date.
ARTICLE VI - UTILITIES
----------------------
6.1. Utilities. Landlord shall provide connections for water, sewer,
telephone, cable, gas, electricity and other utilities to be used at or in
connection with the Premises as part of Landlord's Work. In addition to common
utilities payable by Tenant as part of Park Expense Rent, Tenant shall make all
arrangements for and pay all charges for utility services to the Premises. With
respect to connection or "hook up" charges imposed by any public utility
company, municipality, or other governmental agency, Landlord shall pay all such
charges which pertain to the connection of the building shell to the
distribution system of such utility, municipality, or governmental agency.
Tenant shall pay all such charges which pertain to (i) Tenant's specific use of
the Premises (including, without limitation, deposits required to commence
utility service), and (ii) the connection of the interior tenant improvements
and/or equipment and fixtures installed by or on behalf Tenant to the utility
service.
6.2 Interruption of Utilities. Landlord shall not be liable to Tenant
for interruption or curtailment of any service unless caused by the negligence
or willful misconduct of Landlord or Landlord's Affiliates, or by defects in
design of the utility connections provided by Landlord during the period of the
Limited Warranty. Landlord shall use reasonable, good faith efforts to restore
any interrupted service actually provided by Landlord as
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promptly as reasonable possible and to minimize interference with Tenant's
business. Any such interruption or curtailment shall not constitute constructive
eviction or grounds for rental abatement. Notwithstanding the foregoing, if such
interruption (a) is caused solely by the willful misconduct or negligent acts or
omissions of Landlord or Landlord's Affiliates, and (b) renders the Premises
untenantable, or any portion thereof inaccessible by Tenant, or makes it
impracticable for Tenant to conduct its business in the Premises, each in
Tenant's reasonable judgement, then, if such interruption continues for a period
of five (5) consecutive days after reasonably detailed written notice thereof
from Tenant to Landlord, then the Base Rent and Additional Rent shall be
proportionately abated for each successive day such interruption or cessation
continues based upon that certain portion of the Premises that are affected by
such interruption (other than for reasons of casualty or eminent domain as to
which the provisions of Article XIV shall govern). In addition, in the event
that any such interruption or cessation shall continue for more than ninety (90)
successive days, after reasonably detailed written notice thereof from Tenant to
Landlord, then Tenant shall have the right to terminate this Lease by giving
written notice to Landlord and its Mortgagee(s) (of which Tenant has received
written notice) of such cancellation, provided that at least ten (10) days prior
written notice to Landlord and thirty (30) days prior written notice to
Landlord's Mortgagee has been given (which such notice may be given prior to or
after the expiration of said ninety (90) day period), unless within such ten
(10) day period Landlord repairs or restores such interruption as herein
required, in which event such notice of cancellation from Tenant shall be
rendered null and void and of no further force or effect. For purposes of this
Section, Landlord and Tenant hereby acknowledge and agree that if the Premises
(or any portion thereof) is rendered inaccessible by elevator, but accessible by
stairway(s), then the Premises (or such portion) will not be deemed
"inaccessible" for the purposes hereof..
ARTICLE VII - TRIPLE NET LEASE
------------------------------
7.1 Triple Net Lease. It is intended that this Lease shall be a
"triple net lease," and that the Base Rent and Additional Rent to be paid
hereunder by Tenant will be received by Landlord without any deduction or offset
whatsoever by Tenant, foreseeable or unforeseeable, except as specifically set
forth herein. Except as expressly provided to the contrary in this Lease,
Landlord shall not be required to make any expenditure, incur any obligation, or
incur any liability of any kind whatsoever in connection with this Lease or the
ownership, construction (except to the extent specifically agreed to by Landlord
as set forth in the Work Letter), maintenance, operation or repair of the
Premises, the Property or the Park.
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ARTICLE VIII - REPAIR AND MAINTENANCE
-------------------------------------
8.1 Landlord's Maintenance Obligations. (a) Landlord shall, subject
to reimbursement by Tenant pursuant tO Section 5.2 hereof and subject to the
following sentence, (i) repair, maintain and replace (as necessary) all portions
of Landlord's Work, including without limitation, any damage to the structural
portions of the roof, the roof membrane, foundation, exterior walls, and
load-bearing portions of walls (excluding wall coverings, painting, glass and
doors) of the Premises, provided Tenant has not breached its covenants set forth
in this Lease, (ii) provide janitorial service to the Premises consistent with
such services provided to comparable first-class office parks in the Property
Vicinity, (iii) procure and maintain regularly scheduled preventive
maintenance/service contracts servicing the elevators, all hot water and heating
and air conditioning systems and equipment ("HVAC") in the Premises and the fire
detection and sprinkler system, and (iv) maintain the Park Common Areas in good
order and repair. Notwithstanding the foregoing sentence, Landlord shall not be
required to make any repair resulting from or relating to (u) any alteration or
modification to the Premises or to mechanical equipment within the Premises
performed by, for or because of Tenant or to special equipment or systems
installed by, for or because of Tenant, (v) the installation, use or operation
of Tenant's property, fixtures and equipment, (w) the moving of Tenant's
property in or out of the Premises, (x) Tenant's use or occupancy of the
Premises in violation of Section 9.1(a) of this Lease, (y) the negligent or
willful acts or omissions of Tenant or Tenant's Affiliates, and (z) fire and
other casualty or condemnation, except as provided by Article XIV of this Lease.
To the extent any portion of the Premises to be maintained by Landlord pursuant
to this Section 8.1 is damaged as a result of the negligent act or omission
of Tenant or any of Tenant's Affiliates, or a breach by Tenant of its
obligations under this Lease, then such repair shall be at Tenant's sole
expense.
(b) Landlord shall have no obligation to make repairs under this Section
8.1 until a reasonable time after receipt of written notice from Tenant or
Landlord's actual notice of the need for such repairs, except in case of
emergencies in which case Landlord shall immediately commence such repairs after
receipt of actual notice of the need therefor. Tenant waives any right to repair
the Premises at Landlord's expense under any applicable Laws now or hereafter in
effect which might otherwise apply, except as set forth in Section 8.l(c) below.
(c) If Landlord fails to perform any of Landlord's obligations under this
Section 8.1, and such failure materially interferes with Tenant's use of the
Premises, such that the Premises or a substantial portion thereof are rendered
inaccessible or unusable for the Permitted Use, it being understood that this
Section 8.1(c) is not intended to cover ordinary or routine maintenance, Tenant
shall have the right, but not the obligation, to perform any of such covenants
for the account of Landlord after giving Landlord (and its Mortgagee of which
Tenant has received written notice) thirty (30) days' prior written notice of
Tenant's intention to do so and provided that Landlord has not commenced and
diligently pursued the same to completion within such thirty (30) day notice
period and following the giving of an additional written notice to Landlord and
its Mortgagee and the expiration of an additional cure period of five (5) days.
If Tenant shall undertake such performance, Landlord shall reimburse Tenant for
all costs and expenses reasonably incurred by Tenant in connection with such
performance ("Self-Help Costs") within thirty (30) days after receipt of an
invoice therefor from Tenant (together with any back-up documentation reasonably
requested by Landlord), together with interest at Default Rate, until paid in
full by Landlord. If there remains any amounts unpaid by Landlord to Tenant
hereunder after interest has commenced to accrue for at least thirty (30) days
and Landlord fails to reimburse Tenant within five (5) days after Tenant gives
Landlord a second written notice and its Mortgagee of whom Tenant has been
provided notice, then Tenant shall be entitled to offset the unreimbursed costs,
together with interest as aforesaid, against fifteen percent (15%) of the
monthly Base Rent due hereunder until Tenant has been reimbursed in full.
8.2 Tenant's Maintenance Obligations. (a) Except for the portions of
the Premises expressly required to be maintained by Landlord under Section 8.1
above and subject to the Limited Warranties and Third-Party Warranties, Tenant,
at Tenant's sole cost and expense, shall maintain the Premises in good order,
condition and repair. Notwithstanding any contrary provision of this Section
8.2, Tenant shall have no obligation to repair items damaged as a result of the
negligent or willful acts or omissions of Landlord or Landlord's Affiliates.
(b) Tenant's Right to Perform Building Services. It is hereby further
acknowledged and agreed that Tenant may, during the Term hereof and upon at
least thirty (30) days advance written notice to Landlord, and subject to the
expiration or earlier termination by Landlord at Tenant's request where possible
of any applicable
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service agreements to which Landlord or the Premises are bound or to the payment
by Tenant of any cancellation fees thereunder, elect to assume responsibility
for or contract directly with an independent third party for all janitorial,
building systems repair and maintenance by qualified employees according to
manufacturers' specifications, or similar services which were originally
provided by Landlord. Notwithstanding the foregoing, Tenant shall have no right
to perform Park Services. If Tenant so elects, the associated Building Expenses
shall be reduced accordingly; provided, however, that such services contracted
for by Tenant shall at all times be consistent with the level and quality of
services previously furnished by or on behalf of Landlord, and that Landlord
reasonably approves such supplier of services in advance and in writing. In the
event of Tenant's failure to meet the level and quality of services required
hereunder (i.e. comparable to or better than the level and quality of services
originally provided by Landlord), then Landlord shall have the right to resume
furnishing such services in the event that Tenant fails to increase the level of
services to such level required by Landlord hereunder within thirty (30) days
after written notice from Landlord. In connection therewith, the parties hereto
agree to execute a lease amendment in form and substance reasonably acceptable
to both parties in order to effectuate the foregoing provisions.
ARTICLE IX- TENANT'S COVENANTS
9.1 Tenant's Covenants. In addition to Tenant's other covenants hereunder,
Tenant shall, at its expense:
(a) use the Premises solely for the Permitted Use, and for no other
purpose; procure and maintain and comply with all required licenses and permits;
and not use the Premises in violation of any laws, ordinances, orders, rules or
regulations of any public authority (collectively, "Laws") or of any insurer,
Board of Fire Underwriters, or similar insurance rating bureau having
jurisdiction over the Premises, including without limitation, the State Premises
Code and the Americans With Disabilities Act of 1990, as amended, and any and
all regulations promulgated thereunder (collectively, "Insurance Regulations"),
or in a manner which may be injurious to or adversely affect the general
character of the Premises or the Premises and not conduct any auction,
bankruptcy or similar sale thereon, except Tenant's obligation to obtain
required licenses and permits shall be waived to the extent Tenant's failure to
do so is a result of a defect in Landlord's Work, provided Tenant shall promptly
obtain any such permit or license following Landlord's cure of such defect in
accordance with Section 8.1 hereof;
(b) pay, as they become due, all taxes imposed upon or relating to
Tenant's business and Tenant's personal property;
(c) not act in any manner which prevents Landlord or Tenant from
obtaining, or makes void or voidable, any insurance, or if the same creates
extra premiums for or increases the rate of, insurance, Tenant will pay the
increased cost upon demand;
(d) comply with all applicable mandatory energy conservation controls
and requirements imposed or instituted by federal, state or local governments or
by the applicable utility provider including controls on the permitted range of
temperature settings and requirements necessitating curtailment of the volume of
energy consumption or the hours of operation;
(e) not place a load upon the Premises floor which exceeds the weight
of permissible live load per square foot of floor area (partitions shall be
considered as part of the live load) without Landlord's prior consent, which
shall not be unreasonably withheld, conditioned or delayed. Landlord reserves
the right to prescribe the weight and position of all safes, files and heavy
equipment which Tenant desires to place in the Premises so as properly to
distribute the weight thereof. Tenant's business machines and mechanical
equipment which cause vibration that may be transmitted to the Premises
structure shall be so installed, maintained and used by Tenant, at Tenant's
expense, so as to eliminate such vibration. Tenant shall pay the cost of all
structural engineering required to determine structural load and all acoustical
engineering required to address any vibration to the Premises stucture caused by
Tenant;
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(f) notwithstanding any permitted use inserted in Article I, not use
the Premises for any purpose which would violate the certificate of occupancy
for the Premises, any conditional use permit or variance applicable to the
Premises or violate any covenants, conditions or other restrictions applicable
to the Park (including, without limitation, the Declaration), now in effect or
which may hereafter come into effect, whether or not they reflect a change in
policy from that now existing, during the Term or any part of the Term hereof,
relating in any manner to the Premises or the Park and the occupation and use by
Tenant thereof; and
(g) cause any Transferee (defined below) to comply with all the terms
and conditions of the Lease.
ARTICLE X-ASSIGNMENT AND SUBLETTING
10.1 Assignment and Subletting
(a) Tenant shall not assign, sublet, mortgage, license, transfer or
encumber this Lease of the Premises in whole or in part whether by changes in
the ownership or control of any entity which is Tenant, or any direct or
indirect owner of Tenant, whether at one time or at intervals, by sale or
transfer of stock, partnership or beneficial interests, operation of law or
otherwise (each, a "Transfer"), and any purported Transfer shall be void and
confer no rights upon any third person, provided that if there is a Transfer and
a continuing Default, Landlord may collect rent from the transferee without
either waiving the prohibition against Transfers, accepting the transferee, or
releasing Tenant from full performance under this Lease, and Landlord shall have
the right to terminate this Lease upon thirty (30) days' written notice within
sixty (60) days after written notice from Tenant to Landlord of any Transfer, or
within one (1) year after Landlord first learns of the Transfer if no notice is
given.
(b) Notwithstanding Section 10.1(a) above, Tenant may, without
Landlord's consent, assign this Lease or sublet the entirety of the Premises, or
any portion thereof, to any parent, subsidiary, affiliate, or entity into which
Tenant has been merged or consolidated or which acquires all or substantially
all of Tenant's assets (each, a "Tenant Entity", and each a "Permitted
Transfer"), provided that (i) at the time of such Permitted Transfer, there is
no Default under any of the terms and conditions of this Lease, (ii) notice of
such transfer shall have been delivered to Landlord as soon as practicable but
in any event within ten (10) days of the effective date of the Permitted
Transfer, (iii) the Tenant Entity shall agree directly with Landlord, by written
instrument in form reasonably satisfactory to Landlord, to be bound by all of
the obligations of Tenant under this Lease, (iv) subject to the following
sentence, the Tenant Entity has a tangible net worth computed in accordance with
generally accepted accounting principles at least equal to $50,000,000, as
evidenced by annual financial statements provided to Landlord by Tenant's
independent certified public accountants, as determined utilizing generally
accepted accounting principles, consistently applied, (v) Tenant shall remain
fully and primarily liable hereunder, and (vi) no such assignment or sublet
shall affect the Permitted Use. Notwithstanding the foregoing, it shall not be
reasonable for Landlord to withhold consent to a proposed assignment or sublease
if the Tenant Entity is an affiliate or subsidiary of Tenant which does not
satisfy the net worth test set forth in (iv) above, if and only if, the Tenant
Entity satisfies the other conditions set forth in this paragraph, is of sound
financial condition, and is of a character and business reputation consistent
with the character of the Premises as a first class building used for the
Permitted Use.
(c) In addition, and notwithstanding Section 10.1(a) above, with
respect only to a proposed assignment or sublease to an entity other than a
Tenant Entity, Landlord agrees not to unreasonably withhold, condition or delay
its consent to same, provided that it shall be reasonable for Landlord to
withhold its consent if (i) in the reasonable business judgement of Landlord,
the proposed assignee or sublessee cannot satisfactorily demonstrate the ability
to meet its financial obligations, including those set forth in the proposed
assignment or sublease document; (ii) the proposed use would differ materially
from the Permitted Use; (iii) the business reputation of the proposed
sublessee/assignee is not reasonably satisfactory to Landlord; (iv) said
sublessee/assignee will disproportionately utilize the Park Common Areas, or (v)
the proposed assignee/sublessee is a tenant or subtenant of the Park and
Landlord has comparable space available for lease to such subtenant or tenant in
the Park.
(d) In the event Tenant desires to enter into such an assignment or
sublease to a party other than a Tenant Entity, Tenant shall notify Landlord in
writing of Tenant's intent, the proposed effective date of such assignment or
sublease, the terms and conditions of same (including all rent and other
consideration to be paid by
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the proposed transferee), and shall request Landlord's consent thereto. Upon
Landlord's request, Tenant shall provide Landlord with additional reasonable
information in connection with said assignment or sublease. Landlord shall
respond to Tenant's request within thirty (30) days after receipt thereof.
If Landlord consents in writing to such an assignment or sublet, such
consent shall be deemed conditioned upon Tenant's compliance with the following
provisions and the failure to so comply shall be deemed to give Landlord
reasonable cause for withholding or withdrawing its consent:
(i) At the time of such assignment or sublease, this Lease must be
in full force and effect without any Default hereunder on the part of Tenant;
(ii) The assignee or sublessee shall assume, by written recordable
instrument, in form and content reasonably satisfactory to Landlord, the due
performance of all Tenant's obligations under this Lease, including any accrued
obligations at the time of the assignment or sublease;
(iii) A copy of the assignment or sublease instrument and the original
assumption agreement (both in form and content reasonably satisfactory to
Landlord) fully executed and acknowledged by the transferee, together with a
certified copy of a properly executed corporate resolution authorizing such
assumption agreement, shall be received by Landlord within ten (10) days from
the effective date of such assignment or sublease;
(iv) Such assignment or sublease shall be upon and subject to all the
provisions, terms, covenants and conditions of this Lease including, but without
limitation, the Permitted Use and Tenant (and any transferees and guarantor(s)
of this Lease) shall continue to be and remain primarily and unconditionally
liable hereunder;
(v) Unless Landlord terminates the Lease in accordance with Section
10.1(e) below, Tenant shall reimburse Landlord for Landlord's attorneys' fees
for examination of and/or preparation of any documents in connection with such
assignment or subletting up to $1,500 per request; and
(vi) Tenant shall, within thirty (30) days of receipt thereof, pay to
Landlord seventy-five (75%) percent of any rent, sum or other consideration to
be paid or given in connection with such assignment or sublease, either
initially or over time, in excess of the Base Rent and/or Additional Rent and/or
other charges to be paid under this Lease ("Sublease Profits"), as if such
amount were originally called for by the terms of this Lease as Additional Rent;
provided Tenant may first deduct from the amount owed to Landlord all reasonable
and customary expenses directly incurred by Tenant which are attributable to the
Transfer, including, without limitation, reasonable legal fees and brokerage
commissions paid by Tenant in connection with the assignment or sublease.
(e) If Tenant requests Landlord's consent to a sublease of more than
fifty percent (50%) of the Premises, or to assign this Lease to any entity other
than to a Tenant Entity, as an alternative to Landlord's consent (but without
being so obliged), Landlord, at its option, shall have the right within thirty
(30) days of Tenant's request for such consent, to give notice in writing to
Tenant of its intention to terminate this Lease as to the space identified in
Tenant's request for consent, effective as of the commencement date of the
proposed Transfer, and Base Rent and Additional Rent shall be pro rated on a
square footage basis and shall be reduced accordingly for the remainder of the
Term. Notwithstanding the foregoing, if Landlord notifies Tenant that it intends
to terminate the Lease, Tenant shall have the right, for a period of thirty (30)
days following receipt of Landlord's notice of its intention to terminate, to
withdraw its request for Landlord's consent and this Lease shall thereafter
continue to remain in full force and effect without modification as originally
called for in this Section 10.1(e).
(f) Notwithstanding anything to the contrary contained herein,
during the first two (2) Lease Years of the Term and provided Tenant has not
previously Transferred more than twenty-five percent (25%) of floors one and two
of the Premises, Landlord agrees not to unreasonably withhold, condition or
delay its consent to any proposed sublease(s) of the balance of the Premises,
provided, in Landlord's reasonable judgment, the business of each proposed
subtenant and its use of the proposed subleased premises shall: (A) be
consistent with the Permitted Use; (B) in Landlord's good faith judgement, be in
keeping with the standards of the Park; and (C) not violate any "exclusive use"
right or other similar restriction theretofore granted to or in favor of any
other tenant or
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occupant of the Park by Landlord or any affiliate of Landlord, and further
provided that the Tenant will not have transferred, more than twenty-five
percent (25%) of floors one and two of the Premises after the effective date of
such proposed subleases. If Landlord consents to any sublease pursuant to this
subsection (Q Tenant shall not be required to pay any Sublease Profits to
Landlord during Lease Years one and two, and Landlord shall have no right to
terminate the Lease pursuant to subsection (e) hereof in connection therewith.
If the term, as may be extended, of any sublease approved under this Section
10.1(f) expires after the end of the second Lease Year, Landlord shall be
entitled to Sublease Profits as set forth in Section lO.l(d)(vi) above with
respect to such sublease from and after the end of the second Lease Year.
ARTICLE XI-ENVIRONMENTAL
------------------------
11.1 Environmental Covenants.
-----------------------
(a) Definition. As used in this Lease, the term "Hazardous Material"
means any flammable items, explosives, radioactive materials, hazardous or toxic
substances, material or waste or related materials, including any substances
defined as or including in the definition of "hazardous substances", "hazardous
wastes", "infectious wastes", "hazardous materials" or "toxic substances" now or
subsequently regulated under any federal, state or local laws, regulations or
ordinances including, without limitation, oil, petroleum-based products, paints,
solvents, lead, cyanide, DDT, printing inks, acids, pesticides, ammonia
compounds and other chemical products, asbestos, PCBs and similar compounds, and
including any different products and materials which arc subsequently found to
have adverse effects on the environment or the health and safety of persons. The
term "Hazardous Materials Laws" shall mean, without limitation, each and every
law, rule, order, statute or regulation described above in this Section,
together with (i) any amendments thereto or regulations promulgated thereunder,
and (ii) any other laws pertaining to the protection of the environment or
governing the use, release, storage, generation or disposal of Hazardous
Materials, whether now or existing or hereafter enacted or promulgated.
(b) General Prohibition. Tenant shall not cause (or permit Tenant's
Affiliates to cause) any Hazardous Material to be generated, produced, brought
upon, used, stored, treated, discharged, released, spilled or disposed of on,
in, under or about the Premises, Premises, or Property. Notwithstanding the
foregoing, Tenant may use modest amounts of cleaning solvents and other such
products typically used in connection with Tenant's business operations,
provided that, if usage of any such material exceeds one (1) gallon in any one
instance, Tenant informs Landlord in writing of the type and amounts of any such
Hazardous Materials, and may also use those substances and materials set forth
on Exhibit J attached hereto, provided that any such use and storage shall at
all times be in compliance with all applicable Hazardous Materials Laws.
Landlord agrees that neither Landlord, nor its agents, employees or contractors,
shall cause or permit any Hazardous Materials to be brought upon, kept, or used
in or about the Park except in accordance with Hazardous Materials Laws. If
Landlord receives notice from any governmental agency or entity having
jurisdiction over the Premises, Property or Park, that there exists on the
Premises, Property or Park any adverse condition in violation of any Hazardous
Materials Laws, and such condition was caused by any act or omission of
Landlord, its agents, contractors or employees, Landlord shall promptly take any
and all steps necessary to remediate the same to the standard mandated by
applicable governmental authority. Landlord shall use reasonable efforts to
prevent other tenants from bringing, keeping or using Hazardous Materials in or
about the Park.
(c) Notice In the event that Hazardous Materials are discovered upon,
in, or under the Premises, or Property, and any governmental agency or entity
having jurisdiction over the, Premises or Property requires the removal of such
Hazardous Materials, Tenant shall be responsible for removing those Hazardous
Materials which it introduced to the Premises or Property, as the case may be,
by Tenant or Tenant's Affiliates. Notwithstanding the foregoing, Tenant shall
not take any remedial action without first notifying Landlord of Tenant's
intention to do so and affording Landlord the opportunity to protect Landlord's
interest with respect thereto. Promptly after Tenant's knowledge thereof, Tenant
shall notify Landlord in writing of: (i) any spill, release, discharge or
disposal of any Hazardous Material in, on or under the Premises, or any portion
thereof, (ii) any notice, enforcement, clean-up, removal or other governmental
or regulatory action instituted, contemplated, or threatened (if Tenant has
notice thereof) pursuant to any Hazardous Materials Laws; (iii) any claim made
or threatened by any person against Tenant or the Premises, Premises, or
Property relating to Hazardous Materials; and
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(iv) any reports made to any governmental agency or entity arising out of or in
connection with any Hazardous Materials in, on, under or about or removed from
the Property, including any complaints, notices, warnings, reports or asserted
violations in connection therewith.
(d) Limited Liability. In no event shall Tenant be responsible for
any Hazardous Material introduced by any one other than Tenant or Tenant's
Affiliates.
(e) Indemnification. (i) Tenant shall indemnify, defend and hold
Landlord harmless from and against any and all actions (including, without
limitation, remedial or enforcement actions of any kind, administrative or
judicial proceedings, and orders or judgments arising out of or resulting
therefrom), costs, claims, damages (including, without limitation, punitive
damages), expenses (including, without limitation, attorneys', consultants' and
experts' fees, court costs and amounts paid in settlement of any claims or
actions), fines, forfeitures or other civil, administrative or criminal
penalties, injunctive or other relief (whether or not based upon personal
injury, property damage, or contamination of, or adverse effects upon, the
environment, water tables or natural resources), liabilities or losses arising
from the generation, use, release, discharge, spill or disposal of Hazardous
Materials by Tenant or Tenant's Affiliates in, on, under, or about the Premises,
Property or Park.
(ii) Landlord shall indemnify, defend and hold Tenant, its employees,
officers, contractors and agents harmless from and against any and all actions
(including, without limitation, remedial or enforcement actions of any kind,
administrative or judicial proceedings, and orders or judgments arising out of
or resulting therefrom), costs, claims, damages (including, without limitation,
punitive damages), expenses (including, without limitation, attorneys',
consultants' and experts' fees, court costs and amounts paid in settlement of
any claims or actions), fines, forfeitures, or other civil, administrative or
criminal penalties, injunctive or other relief (whether or not based upon
personal injury, property damage, or contamination of, or adverse effects upon,
the environment, water tables or natural resources), liabilities or losses
arising from, or related to, the treatment, storage, generation, use, release,
discharge, spill or disposal of Hazardous Materials on or prior to the
Commencement Date at, under or about the Premises, Property, or Park, or brought
onto the Premises, Property or Park by Landlord, its agents, contractors or
employees after the Commencement Date.
(f) Survival. The respective rights and obligations of Landlord and
Tenant under this Section 11.1 shall survive the expiration or earlier
termination of this Lease.
ARTICLE XII - CONDITION OF PREMISES
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12.1 Improvements. Except for Tenant's Work (the process for approval
of which is set forth in the Work Letter), Tenant may not make structural or
exterior or non-structural improvements to the Premises ("Alterations") without
Landlord's prior written consent. Landlord's consent with respect to structural
or exterior Alterations may be given or withheld in Landlord's sole and absolute
discretion; however, Landlord's consent to interior or non-structural
Alterations (not excepted to the next succeeding paragraph) shall not be
unreasonably withheld, conditioned or delayed. In addition, Landlord shall not
unreasonably withhold, condition or delay its consent to any reasonable
structural reinforcement of the roof of the Premises which Tenant proposes in
connection with installation of equipment on the roof of the Premises. At the
end of the Term, all Alterations shall remain as part of the Premises unless
Landlord otherwise directs Tenant to remove any such Alteration. If requested in
writing by Tenant at the time Tenant requests Landlord's consent, Landlord
shall, as part of its consent, stipulate which Alterations, or portion thereof,
if any, shall be removed at the end of the Term. Alternatively, at the time
Tenant requests Landlord's consent to any Alteration, Tenant may also request in
writing that it not be required to remove such Alteration at the end of the
term. If Landlord consents in writing to such request, then Tenant shall not be
required to remove such Alteration at the end of the Term.
Notwithstanding the foregoing, Tenant, without Landlord's consent, may
make Alterations to the interior of the Premises which (i) are not structural,
(ii) do not adversely affect the electrical, plumbing or mechanical systems of
the Premises, (iii) do not decrease the value of the Premises, (iv) are less
than $175,000 in any one instance (exclusive of the cost of wiring, including,
telephone and data cabling and furniture installation and reconfiguration), (v)
are otherwise in conformance with all applicable building, zoning and other
codes or regulations affecting or applying to the Premises, and (vi) the
aggregate cost of which does not exceed $350,000 in
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any consecutive twelve month period; provided, however, Tenant must give twenty
(20) days prior written notice to Landlord before making any such improvements.
All work to be performed by or for Tenant pursuant hereto shall
be performed diligently and in a first-class, workmanlike manner, and in
compliance with all applicable laws, ordinances, regulations and rules of any
public authority having jurisdiction over the Premises and/or Tenant and
Landlord's insurance carriers. Landlord shall have the right, but not the
obligation, to inspect periodically the work on the Premises with reasonable
prior notice to Tenant.
12.2 Fixtures: Yield-Up. Except as Landlord directs in writing, Tenant
shall, at the expiration or sooner termination of the Lease, remove its personal
property, signs and trade fixtures, and peaceably yield-up the Premises,
broom-clean and in good order, repair, and condition, normal wear and tear,
damage by fire or casualty or condemnation or damage caused by Landlord, its
agents, contractors or employees excepted, with all repairs, including painting
and patching to the Premises required by such removal, having been made and all
utility lines left exposed or unconnected having been capped. Any computer and
telecommunications wiring or cabling affixed, embedded or installed in or behind
any walls, columns, shafts, floors or ceilings of the Premises (collectively,
"Cabling") and any supplemental HVAC or other equipment (including so-called
"Liebert" type units) (collectively "HVAC Units") installed or affixed to the
Premises or the Property shall be considered fixtures hereunder and shall not be
removed or disturbed by Tenant, provided, however, if Tenant leaves Cabling in a
non-functional condition at the end of the Term, Landlord may remove such
Cabling at Tenant's expense, and further provided that Landlord, at the time
Tenant notifies Landlord that it intends to install any HVAC Units, may require
Tenant to remove such HVAC Units upon expiration or earlier termination of this
Lease. If Tenant fails to remove its property or to make the repairs by five (5)
days after the end of the Term, Landlord may remove and store Tenant's property
in a public warehouse at Tenant's expense or sell same at public auction, and
make the Repairs, and Tenant shall promptly reimburse Landlord for its costs.
12.3 Mechanic's Liens. Tenant shall, within ten (10) days of notice
thereof, immediately discharge any mechanic's, materialmen's or other lien, by
bonding or otherwise, against the Premises, the Property and/or Landlord's,
interest therein arising out of any payment due, or purported to be due, for
any labor, services, materials, supplies, or equipment alleged to have been
furnished to or for Tenant.
ARTICLE XIII- INSURANCE
-----------------------
13.1 Insurance
---------
(a) Tenant's Insurance. Tenant shall maintain, at its sole expense,
the following policies of insurance:
(i) Commercial General Liability Insurance. Liability insurance
covering the insured against claims of bodily injury, personal injury and
property damage arising out of Tenant's operations, assumed liabilities or use
of the Premises, the Property or the Park, including the performance by Tenant
of the indemnities set forth herein, with a combined single limit of not less
than $3,000,000.00 (or such higher limits as or may be reasonably required by
Landlord based upon inflation, increased liability awards, or requirements of
any Mortgagee or professional insurance advisors, provided Landlord shall not
require higher limits any more often than once every five (5) years.
(ii) Property Insurance. 100% replacement cost "special form,
all-risk" property insurance covering the Tenant's personal property, and all
other improvements, which insurance shall contain a sprinkler leakage
endorsement.
(iii) Boiler and Machinery Insurance. If Tenant shall receive
Landlord's prior written consent to operate an the Premises a boiler or other
pressured vessels, Tenant shall, as a pre-condition to installing the same,
place and maintain Boiler Insurance with limits of liability in an amount not
less than $250,000 per occurrence or as needed, and provide coverage for the
full replacement value thereof.
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(iv) Worker's Compensation/Employer's Liability Insurance.
Worker's Compensation Insurance or similar statutory coverage containing
statutorily prescribed limits and Employer's Liability with limits of one (1)
million dollars.
(v) Automobile Liability Insurance. Tenant shall, at Tenant's
expense, obtain and keep in force at all times a policy of comprehensive
automobile liability insurance having a combined single limit of not less than
Two Million Dollars ($2,000,000) per occurrence and insuring Tenant against
liability for claims arising out of the ownership, maintenance, or use of any
owned, hired or non-owned automobiles.
If (i) any insurance policy carried by Landlord with respect to the
Property or the Park shall be canceled or cancellation shall be threatened or
the coverage thereunder reduced or threatened to be reduced in any way by reason
of the use or occupation of the Premises or any part thereof by Tenant, and (ii)
Tenant fails to remedy the condition giving rise to cancellation, threatened
cancellation or reduction of coverage within twenty (20) days after notice
thereof, such failure shall be deemed a default under this Lease, and Landlord
may exercise its option to either terminate this Lease or to enter upon the
Premises and attempt to remedy such condition, in which event Tenant shall pay
immediately to Landlord the costs associated with such termination or entry and
attempt to remedy as Additional Rent. Landlord shall not be liable for any
damage or injury caused to any property of Tenant or of others located in the
Premises as a result of such an entry.
(b) Builder's Risk Insurance. During the period of construction of
the Landlord's Work, as described in the Work Letter, Landlord shall maintain
builder's all-risk replacement cost insurance on a non-reporting completed value
basis, naming as insureds Landlord and Tenant as their interests may appear.
Such policy shall have a deductible no greater than $25,000. Prior to
commencement of Landlord's Work, Landlord shall deliver to Tenant a certificate
of the foregoing insurance.
(c) Landlord's Insurance. Landlord shall procure and continue in
force during the Term, as the same may be extended hereunder, (A) "special form,
all risk" property insurance, including vandalism, sprinkler leakage and
malicious mischief, upon the Premises on a full replacement cost basis, agreed
cost value endorsement with agreed values for the Premises, as determined
annually by Landlord's insurer, with a reasonable deductible (B) rental
interruption insurance for twelve (12) months or the maximum amounts permitted,
and (C) liability insurance covering the insured against claims of bodily
injury, personal injury and property damage arising out of Landlord's operation
of the Park, including the performance of Landlord of the indemnities set forth
herein in such amount as may be required by Landlord's lender. Copies of
certificates of insurance evidencing the foregoing shall be furnished to Tenant,
upon Tenant's reasonable request. All insurance required of Landlord pursuant to
this Section shall be effected under policies issued by insurers or recognized
responsibility and the coverages required by this Section 13.1(c) may be
provided by a single blanket "package policy." Landlord represents and warrants
that the Permitted Use will not create extra premiums or make void any of the
foregoing coverages carried by Landlord.
(d) Self-Insurance. Anything to the contrary contained herein
notwithstanding, with regard to the insurance required to be maintained by
Tenant hereunder, the original Tenant named in Article I hereof may elect at any
time during the Term or the Extension Period not to carry such insurance and to
"self-insure" against such risks provided that (i) Tenant has in effect a
commercially reasonable program of self insurance against such risks; (ii)
Tenant has and maintains at all times a tangible net worth of at least
$300,000,000, ("Approved Net Worth"); (iii) the loss or failure to carry such
insurance shall not violate any laws, state code, act, ordinance, judgment,
decree, rule, regulation, permit, license, authorization or other governmental
requirement; (iv) in the event Tenant ceases to self-insure and subsequently
desires to re-commence its self-insurance pursuant to this subsection, Tenant
shall notify Landlord in writing at least thirty (30) days prior to
re-commencing such self insurance; (v) if Tenant is not a publicly-traded
company on each anniversary of the Commencement Date during which Tenant is
self-insuring, Tenant provides Landlord with such documents as may be reasonably
necessary to establish that Tenant's tangible net worth is equal to or greater
than the Approved Net Worth, and (vi) if at any time Tenant's net worth shall be
less than the Approved Net Worth, Tenant promptly shall obtain the third-party
insurance required pursuant to Sections 13.1(a) and 13.2 hereof. Tenant hereby
releases Landlord and Landlord's Mortgagees, and agrees to indemnify, defend
and hold harmless Landlord and Landlord's Mortgagees, from and against all
liability resulting from or in any manner relating to Tenant self-insuring. If
Tenant elects to self-insure in whole or in part, Landlord and Landlord's
Mortgagees shall be entitled to the same benefits it would have enjoyed had
insurance otherwise required
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to be carried by Tenant hereunder covering such loss in full been in effect, as
if a waiver of subrogation/waiver of right of recovery clause otherwise required
to be carried by Tenant hereunder had been in effect and as if Landlord and
Landlord's Mortgagees had been named on insurance otherwise required to be
carried by Tenant hereunder covering the loss in full each as an additional
insured for the purpose of preventing any subrogation claim.
13.2 Tenant's Risk. Except as modified by statute, all Tenant's
merchandise, furniture, fixtures and property which may be on or about the
Premises or Property shall be at the sole risk and hazard of Tenant.
13.3 General Requirements. All insurance policies required to be
procured by Tenant or Landlord hereunder shall be with companies whose policies
are valid in Massachusetts. Liability policies required to be procured by
Tenant shall name Landlord, any and all Mortgagee(s), Landlord's agent,
Landlord's property manager, and any other party reasonably designated by
Landlord, additional insureds. In addition, all liability insurance obtained by
Tenant shall be (a) primary insurance as to all claims thereunder and provide
that any insurance carried by Landlord is not excess and is non-contributing
with any insurance of Tenant; (b) contain cross liability endorsements or a
non-severability of interest clause; (c) be written on an occurrence basis; and
(d) specifically cover the liability assumed by Tenant under this Lease
including, but not limited to, Tenant's obligations under Section 13.4. Tenant
shall deliver a copy of the certificates of all insurance to Landlord prior to
entry on the Premises, and upon Landlord's request copies of new certificates
not later than thirty (30) days prior to the expiration of each policy. Each
policy shall provide (and the certificate shall evidence) that it will not
expire, or be canceled or modified without thirty (30) days' prior written
notice.
13.4 Indemnity. Subject to the provisions of Section 13.6, Tenant
shall defend and save Landlord harmless and its partners, officers, directors,
shareholder, members, employees, Mortgagees and agents, and each of their
successors and assigns (collectively, the "Landlord Indemnified Parties"), and
shall indemnify the Landlord Indemnified Parties from all claims, actions,
proceedings, costs, liabilities, penalties and expenses (collectively, "Claims")
arising in connection with death, injury and/or tangible property damage, or any
other loss (a) suffered in, on, about, or otherwise related to the Premises
which Tenant acknowledges are, subject to the terms of the Lease, under Tenant's
exclusive or substantial control, charge, custody and possession, except to the
extent caused by the negligence or willful misconduct of Landlord, (b) related
to Tenant's use and occupancy of the Premises or the Park (or that of Tenant's
Affiliates), or (c) anywhere if caused wholly or in part by any act or omission
of Tenant or Tenant's Affiliates. If Landlord is threatened with or made a party
to any litigation commenced by or against Tenant or any of the above parties, or
with respect to any matter described above, Tenant shall indemnify and defend
the Landlord Indemnified Parties with counsel reasonably acceptable to the
Landlord Indemnified Parties. All of the foregoing shall be limited to the
extent required by Law. The obligations of Tenant under this Section 13.4 shall
survive the termination of this Lease with respect to any claims or liability
arising prior to such termination.
Subject to the provisions of Section 13.6, Landlord shall defend and
save Tenant and its partners, members, directors, officers, employees,
shareholders, lenders and agents and each of their successors and assigns (the
"Tenant Indemnified Parties") harmless, and shall indemnify the Tenant
Indemnified Parties from all Claims arising in connection with death, injury
and/or tangible property damage, or any other loss suffered outside of the
Premises which is caused wholly or in part by the negligence or willful
misconduct of Landlord or the Landlord Indemnified Parties, or their agents,
employees, contractors or invitees. If Tenant is threatened with or made a party
to any litigation commenced by or against Landlord, Landlord shall indemnify and
defend the Tenant Indemnified Parties Tenant with counsel reasonably acceptable
to the Tenant Indemnified Parties. All of the foregoing shall be limited to the
extent required by Law. The obligations of Landlord under this Section 13.4
shall survive the termination of this Lease with respect to any claims or
liability arising prior to such termination.
13.5 Exemption of Landlord from Liability. Tenant, as a material
part of the consideration to Landlord, hereby assumes all risk of damage to
property including, but not limited to, Tenant's fixtures, equipment, furniture
and alterations, or injury to persons in, upon or about the Premises or the Park
arising from any cause, and Tenant hereby waives all claims in respect thereof
against Landlord, except to the extent any personal injury results from the
negligence or willful misconduct of Landlord or the Landlord Indemnified
Parties, or (ii) breaches of the Limited Warranties set forth in Section 3.4
above timely asserted by Tenant. Notwithstanding any provisions of this Lease to
the contrary, Tenant hereby agrees that Landlord shall not be liable for injury
to Tenant's business or any loss of income therefrom under any circumstances.
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13.6. Mutual Releases and Waivers of Subrogation. Landlord and
Tenant release each other and the Tenant Indemnified Parties and the Landlord
Indemnified Parties, respectively, from liability or responsibility for any loss
or damage to their respective property to the extent of actual net property
insurance proceeds received (or to the extent said loss would have been covered
if the party had complied with the provisions of this Lease). This release shall
apply to the parties and anyone claiming through or under the parties by way of
subrogation or otherwise, even if the occurrence was caused by the fault or
negligence of a party or anyone for whom a party is responsible. Landlord and
Tenant each agree that, to the extent it is required to maintain insurance
policies hereunder, its policies will include such a provision if available and
if necessary without extra cost, or if the other party pays the extra cost, and
each promptly shall notify the other of any extra cost.
ARTICLE XIV-CASUALTY AND EMINENT DOMAIN
14.1. Damage. If the Premises become untenantable in whole or part
because of fire or other casualty covered by insurance required under the Lease
("Casualty"), or as the result of a taking of, or damage to, the Premises (or
any building thereon) in connection with the exercise of any power of eminent
domain, condemnation, or purchase under threat or in lieu thereof ("Taking"),
then Landlord or Landlord's engineer shall provide written notice to Tenant of
its reasonable estimate of the time reasonably required to substantially
complete the necessary repairs or restoration ("Landlord's Repair Notice").
Unless the Lease is terminated in accordance with Section 14.2, Landlord, with
reasonable dispatch (but subject to delays for adjustment of insurance proceeds
or taking awards, as the case may be, and causes beyond Landlord's reasonable
control, shall repair the damage in the event of a Casualty (or in the event of
a partial Taking which affects the Premises, restore the remainder of the
Premises not so taken to substantially the same condition as is reasonably
feasible) within one (1) year with respect to substantial reconstruction of at
least 50% of the Premises, or, within 120 days in the case of restoration of
less than 50% of the Premises from the date of said Casualty or Taking so that
the Premises are in substantially the same condition as following completion of
Tenant's Work as set forth in Section 3.5, all subject to rights of Mortgagees,
zoning laws, and building codes then in existence, and provided Landlord shall
not be required to expend more than the net insurance proceeds Landlord receives
for damage to the Premises or the net Taking award attributable to the Premises.
Notwithstanding the cause for any delay, Landlord shall complete restoration
within the same time periods set forth above of the Casualty or Taking. If the
Premises are untenantable in whole or in part as a result of Casualty or Taking,
the rent payable hereunder during the period in which they are untenantable
shall be reduced or abated to such extent as may be fair and reasonable under
all of the circumstances. "Net" means the insurance proceeds or Taking award
actually paid to Landlord (and not paid over to a Mortgagee) or Taking award
less all costs and expenses, including adjusters and attorney's fees, of
obtaining the same. Tenant also shall be required to pay to Landlord any
deductible maintained under the property insurance policy specified in Section
13.1(c) above (but only to the extent not already accounted for in Building
Expense Rent). Tenant shall give written notice to Landlord of any damage to the
Premises at the time Tenant has notice thereof.
Subject to the provisions of Section 13.6 hereof, if the Premises are
wholly or partially damaged or destroyed as a result of the willful misconduct
of Tenant or any of Tenant's Affiliates, and Landlord elects to undertake to
repair or restore all such damage or destruction, such repair and restoration
shall be at Tenant's sole cost and expense, and this Lease shall continue in
full force and effect without any abatement or reduction in Base Rent or other
payments owed by Tenant; provided, however, that Tenant shall be relieved of its
obligation pursuant to this Section 14.1 to the extent that insurance proceeds
are collected by Landlord pursuant to insurance policies carried by Landlord, in
which case Tenant shall be responsible for the payment of the deductible and
that portion not covered by insurance.
Under no circumstances shall Landlord be required to repair any damage
to, or make any repairs to or replacements of, Tenant's personal property.
14.2 Termination Rights.
(a) If the cost to repair the Premises in the event of a
Casualty or Taking exceeds $1,000,000 and the same is not covered by insurance
maintained or required to be maintained by Landlord hereunder, or if so much of
the Premises is damaged that, in the reasonable judgment of Landlord or
Landlord's Mortgagee, it cannot
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be rebuilt to a profitable condition within a reasonable period of time, then
Landlord may terminate the Lease by written notice to Tenant.
(b) If Landlord's Repair Notice estimates restoration of the
Premises will exceed the time frames set forth in Section 14.1 above, or
Landlord is required but fails to complete restoration of the Premises within
the time frames set forth in Section 14.1 above, then Tenant may terminate the
Lease upon thirty (30) days' written notice to Landlord.
(c) In the case of any Casualty occurring during the last two
Lease Years of the Term (i) if such Casualty or Taking to the Premises results
in more than five percent (5%) of the floor area of the Premises being
unsuitable for the Permitted Use or (ii) the damage to the Premises costs more
than $100,000.00 to repair, and the same is not covered by insurance maintained
or required to be maintained by Landlord hereunder, then either Landlord or
Tenant shall have the option to terminate this Lease, provided that Tenant may
vitiate Landlord's termination in the event of a Casualty by exercising the
Extension Option in accordance with Section 4.3 of this Lease.
(d) If any portion of the Premises or the parking areas or
the means of access thereto are taken and the same materially and adversely
affects Tenant's operations in the Premises, then Tenant may terminate the Lease
upon thirty (30) days' written notice to Landlord.
(e) If a portion of the Park is taken which adversely affects
Landlord's operation of the Park, then Landlord may terminate the Lease upon
thirty (30) days' written notice to Tenant.
14.3 Abatement. If a portion of the Premises is Taken, and this
Lease is not terminated, the Base Rent, and Tenant's Pro-Rata Share shall be
reduced proportionately based on the area of the Premises Taken until the
earlier of when Landlord's repairs to the Premises are completed or Tenant
begins using the damaged area. With respect to a Casualty, however, Base Rent
shall equitably xxxxx, but only to the extent that the amount thereof is
compensated for and recoverable from the proceeds of rental loss insurance
maintained by Landlord. Base Rent shall not, in any event, be reduced or abated
by reason of any portion of the Premises being unusable or inaccessible for a
period of three (3) business days or less.
14.4 Taking for Temporary Use. If the Premises are Taken for
temporary use (i.e., not in excess of ninety (90) days), this Lease and Tenant's
obligations, including the payment of Base Rent, shall continue, except to the
extent the Taking renders the Premises or any portion thereof untenantable in
which case Base Rent shall xxxxx during the period of untenantability, and
Tenant shall be entitled to the entire temporary taking award.
14.5 Disposition of Awards. Except for any separate award for
Tenant's movable trade fixtures, relocation expenses, and unamortized leasehold
improvements) (provided that the same may not reduce Landlord's award), and any
award for a temporary taking, all Taking awards to Landlord or Tenant shall be
Landlord's property without Tenant's participation. Tenant may pursue its own
claim against the condemning authority.
ARTICLE XV-DEFAULTS AND REMEDIES
--------------------------------
15.1 Tenant's Default. The following conditions shall be considered
a "Default" by Tenant:
(a) failure to pay Base Rent, Additional Rent, or any other
charge within ten (10) days after written notice from Landlord provided that
Tenant shall be entitled to only two (2) such notices from Landlord per Lease
Year, and any subsequent payment default which occurs within said Lease Year
shall be deemed to be a Default if not paid when due;
(b) Tenant's leasehold estate is taken by execution or other
process of law; or Tenant is liquidated, dissolved, commits an act of
bankruptcy, is declared bankrupt or insolvent according to law or admits in
writing its inability to pay debts generally as they become due, or an
assignment of Tenant's property is made for the benefit of creditors or a
receiver, guardian, conservator, trustee or assignee, or any other similar
officer or person is appointed to take charge of any part of Tenant's property;
or any reorganization or similar proceedings are
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commenced by or against Tenant under any bankruptcy or insolvency law and not
dismissed within 60 days from its commencement; or any court enters an order
providing for the modification of rights of Tenant's creditors;
(c) abandonment of the Premises for any period of time, or
closing for business for an aggregate period during the Term exceeding 60 days
(except for Casualties and unavoidable uninsured casualties), unless Tenant is
actively and continuously marketing all or a portion of the Premises after such
60-day period;
(d) a Transfer in violation of this Lease; or
(e) failure to perform or observe any other Lease terms or
covenants for a period of thirty (30) days after written notice, or if same
shall reasonably take longer than thirty (30) days, if Tenant fails to commence
same promptly and to complete same with due diligence and in any event within
sixty (60) days from the date of notice thereof.
If Tenant Defaults, Landlord may using appropriate legal
process at any time either (i) terminate this Lease by written notice effective
on the date of the notice or on any date specified in the notice, or (ii)
without demand or notice, re-enter, take possession and repossess the Premises
and, with a court order and at Tenant's risk, expel Tenant and those claiming
under Tenant and remove, store and sell their effects at public action, all
without prejudice to any remedies for arrearages or preceding Defaults. The net
proceeds of any sale shall be applied to sums due to Landlord from Tenant and
the balance paid to Tenant. Tenant waives all statutory rights (including rights
of redemption) to the extent such rights may be lawfully waived. With or
without terminating this Lease, Landlord may re-let all or any part of the
Premises from time to time for periods, at such rental, and upon the terms and
conditions as Landlord deems advisable, and may make Improvements and Repairs
to the Premises. No re-entry or taking of possession by Landlord shall terminate
this Lease unless Landlord gives a written notice of such intention to Tenant,
nor shall Landlord's right to re-let constitute an obligation to re-let or to
mitigate damages, provided that notwithstanding the foregoing, Landlord agrees
to list the Premises with a broker.
15.2 Damages. Tenant's liability and obligations under this Lease
shall survive termination or repossession, and Tenant shall pay as current
damages the Base Rent, Additional Rent and other sums up to what would have been
the end of the Term in the absence of the termination or repossession, with a
credit for the net proceeds, if any, Landlord receives from any reletting of the
Premises, after deducting all of Landlord's expenses in connection with the
reletting including, without limitation, reasonable attorney's fees, brokerage
commissions related to finding a new occupant, the costs to repair the Premises,
and the cost to prepare the Premises for reletting, which shall include tenant
improvements up to but not to exceed $15.00 per rentable square foot (applicable
to the area actually re-let including any partial reletting). Tenant shall pay
the current damages to Landlord on the days Base Rent would have been payable if
not for the termination or repossession.
Alternatively, at Landlord's election, after any termination or
repossession, Tenant shall pay to Landlord, at Landlord's option and on demand,
liquidated final damages in lieu of all current damages beyond the date final
damages are paid. The final damages shall be the amount by which (i) the Base
Rent, Additional Rent and other charges which would be payable from the date to
which Tenant paid current damages through what would have been the unexpired
Term exceeds (ii) the then market rental value of the Premises for the same
period, discounted to present value. If any law validly limits the amount of
final liquidated damages to less than described above, Landlord shall be
entitled to the maximum amount legally allowed. Landlord shall use commercially
reasonable efforts to mitigate its damages.
Nothing contained in this Lease shall limit or prejudice the
right of Landlord to prove for and obtain in proceedings for bankruptcy or
insolvency by reason of the termination of this Lease an amount equal to the
maximum allowed by any statute or rule of law in effect at the time when, and
governing the proceedings in which, the damages are to be provided, whether or
not the amount be greater, equal to, or less than the amount of the loss or
damages referred to above.
15.3 Landlord's Self-Help. If Tenant Defaults, Landlord may, at its
option, without waiving its right to terminate this Lease or its claim for
damages, cure the Default, and Tenant shall reimburse Landlord for any amount
paid or contractual liability incurred by Landlord in doing so; provided
Landlord may immediately cure any default
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or failure by Tenant to perform any Lease obligation if the cure or performance
is reasonably necessary to protect the Premises or Landlord's interests, or to
prevent immediate injury or damage to persons or property.
15.4 Landlord's Default. Landlord shall not be deemed to be in
default hereunder unless its default continues for thirty (30) days, (or such
additional time as is reasonably required to correct its default provided
Landlord promptly commences the cure of and diligently prosecutes the completion
of same), after Tenant has given written notice to Landlord specifying the
nature of the alleged default.
ARTICLE XVI - SUBORDINATION
16.1 Subordination. Tenant's rights and interests under this Lease
shall be (i) subject and subordinate to any existing or future mortgages, deeds
of trust, xxxxxxxxx, or similar instruments covering the Premises and to all
advances, modifications, renewals, replacements, and extensions thereof
("Mortgages"), or (ii) if any Mortgagee elects, prior to the lien of any present
or future Mortgage. After receiving notice from any Mortgagee or ground lessor,
which notice states that Landlord is in default under such instrument, Tenant
shall attorn to and recognize such Mortgagee or ground lessor as a successor
landlord, as if the successor landlord were the originally named Landlord, and
no notice from Tenant to Landlord alleging any default by Landlord shall be
effective unless and until a copy of the same is given to all Mortgagee(s) or
ground lessor (provided Tenant shall have been furnished with the name and
address of such Mortgagee or ground lessor), and the curing of any of
Landlord's defaults by such Mortgagee or ground lessor shall be treated as
performance by Landlord. All Mortgagees shall have the same opportunity and
rights as are available to Landlord to cure a Landlord default, which cure
period shall run concurrently with Landlord's cure period specified hereunder.
Notwithstanding the foregoing, if the Premises are, as of the date
hereof, subject to any Mortgage, Landlord shall deliver to Tenant the
subordination, non-disturbance and attornment agreement in the form attached
hereto as Exhibit H executed by the current Mortgagee. Notwithstanding anything
to the contrary herein contained, with respect to future Mortgages, Tenant's
subordination and attornment obligations hereunder are conditioned upon receipt
by Tenant of such future Mortgagee's standard form of subordination,
non-disturbance and attornment agreement, with such customary changes as Tenant
and such Mortgagee mutually agree upon, Tenant hereby agreeing to negotiate such
changes in good faith and without undue delay
ARTICLE XVII- MISCELLANEOUS PROVISIONS
17.1 Parties Bound. Except as otherwise provided, the agreements and
conditions to be performed and observed by Landlord or Tenant hereunder shall
bind and inure to the heirs, legal representatives, successors and assigns of
each, provided no reference to Tenant's successors and assigns will, alone,
constitute a consent to a Transfer by Tenant. If Tenant consists of more than
one person or entity, or if there is a guarantor, then all such persons,
entities and guarantors shall be jointly and severally liable and the word
"Tenant," as used in this Lease, including Article IX, includes such person,
entities, and guarantors. The word "Landlord" means only the owner, or the
lessee if this Lease becomes subject to an xxxxxxxxx, or the mortgagee in
possession of the Premises such that, all prior landlords, including Landlord,
shall be relieved of all Landlord covenants and obligations accruing after a
transfer. If the entity which holds Landlord's interest in this Lease is a
trust, then the Landlord obligations shall be binding upon the trustees of said
trust, as trustees and not individually, and not upon the trust estate.
17.2 Landlord's Liabilities and Additional Rights.
(a) Landlord shall have no obligation or liability with
respect to or in any way connected with the Premises, the Property, or services
to be provided from same, except to the extent specifically set forth in this
Lease. The obligations of Landlord set forth in this Lease do not constitute
personal obligations of the Landlord, or trustees, partners, directors,
officers, or shareholders of Landlord, and Tenant shall not seek recourse
against the personal assets of Landlord, or the members, trustees, individual,
partners, directors, officers, or shareholders of Landlord for satisfaction of
any liability in respect to this Lease. Landlord shall not be deemed to have
committed a breach of any repair obligations of Landlord hereunder unless it
makes repairs negligently or fails to commence repairs within the times provided
in this Lease or, if no time is provided, within a reasonable time after
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Landlord receives notice from Tenant, and Landlord's liability in any case shall
be limited to the cost of making the required repairs.'
(b) Landlord shall not be liable for indirect or consequential
damages for any reason whatsoever. Landlord shall not be liable for any
inconvenience, interruption or consequences resulting from the failure of
utilities or any service, making repairs, improvements or resulting from leaks
of steam, gas, electricity, water, or any other substance from pipes, wires or
other conduits, or from the bursting or stoppage thereof, or from leaks of
water, snow, or rain unless due to the gross negligence or willful misconduct of
Landlord, its agents, contractors or employees; provided, however, Landlord
shall in no event be liable for indirect or consequential damages.
(c) Tenant agrees for itself and each succeeding holder of Tenant's
interest, or any portion thereof, that any judgment, decree or award obtained
against Landlord, or any succeeding owner of Landlord's interest, which is
related to this Lease or the Property, whether at law or in equity, shall be
satisfied out of Landlord's equity in the Property and the rents, profits and
proceeds thereof, and further agrees to look only to such assets and to no other
assets of Landlord for satisfaction.
(d) Landlord reserves the right at any time or times during the
Term and without charge, abatement or reduction in rent (i) to examine and to
show the Premises at reasonable times, provided Landlord shall give Tenant
reasonable advance notice and shall use reasonable efforts to minimize
interference with Tenant's operations; (ii) to put up "For Sale" or "For Rent"
signs on the Property, but not on the exterior of the Premises, Premises or
Property, during the last six months of the Lease term; (iii) to show the
Premises at reasonable times and after reasonable advance notice from Landlord
during the last six (6) months of the Initial Term or any extension thereof;
(iv) to perform such work as may be required by this Lease, any public
authority, or to facilitate making repairs or improvements to the Premises, the
Property or any portion thereof, provided that unless any such work is of an
emergency nature, Landlord shall give Tenant reasonable advance notice and in
making any entry permitted hereunder, shall use reasonable efforts to minimize
interference with Tenant's operations; and (v) to enter upon, giving Tenant
reasonable advance notice, and use portions of, the Premises for the foregoing
purposes.
(e) Landlord shall have no liability to Tenant for inconvenience,
annoyance, or injury to business resulting from Landlord's repairs or
improvements made hereunder or the exercise of any rights reserved to Landlord
hereunder, and Tenant hereby waives all rights of abatement or claims of
constructive eviction.
17.3 Holding Over. If Tenant or anyone claiming under it holds over
after the end of the Term, the party shall, prior to Landlord's acceptance of
rent, be a Tenant at sufferance, and, after Landlord's acceptance of rent, be a
Tenant at will subject to the provisions of this Lease insofar as the same may
be made applicable to a tenancy at will; provided that whether or not Landlord
has accepted rent, (i) Tenant shall pay (A) during the first three (3) months of
any such hold over, Base Rent at 150% of the highest rate of Base Rent payable
during the Term, and (B), during any subsequent period of hold over, 200% of the
highest rate of Base Rent payable during the Term, and (ii) Tenant shall be
liable for all damages incurred by Landlord as a result of the holding over;
provided that if Landlord notifies Tenant in writing that it has entered into
negotiations for a lease for the Premises (or a portion thereof), which such
notice shall specify a period of not less than thirty (30) days after which
consequential damages shall commence to accrue if such holdover continues by
Tenant, then Tenant shall also be liable for all damages, including
consequential damages, suffered by Landlord to the extent caused directly by
Tenant's holding over.
17.4 Quiet Enioyment. Provided Tenant timely pays all rent and performs
and observes the terms, conditions and covenants of the Lease, Tenant may
peaceably and quietly have, hold and enjoy the Premises as provided in the
Lease, without hindrance or molestation from Landlord or anyone claiming legally
under Landlord, subject to the terms of this Lease.
17.5 Brokerage. Tenant warrants and represents to Landlord, and Landlord
warrants and represents to Tenant, that each has dealt with no broker in
connection with this Lease except the Broker (if any). Each of Landlord and
Tenant agree to defend and indemnify the other against any brokerage claims
related to this Lease
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other than by the Broker. Landlord shall pay the Broker's commission in
accordance with a brokerage agreement by and between Landlord and Broker.
17.6 Certificates. Within twenty (20) days after Landlord's request,
Tenant shall deliver to Landlord or to any prospective Mortgagee or purchaser
(a) an estoppel certificate in the form attached hereto as Exhibit K, and (b) if
Tenant is not a publicly traded company, subject to execution of a
confidentiality agreement which is reasonably acceptable to both parties hereto,
such financial statements as Landlord reasonably requires (no more than once per
Lease Year) to verify the net worth of Tenant or any Transferee, and Tenant
represents and warrants that each such financial statement shall be true and
accurate as of the date thereof.
17.7 Notices. Any notice, consent, or other communication relating to
this Lease shall be given in writing and by hand, by registered or certified
mail or overnight express mail such as "Federal Express", postage or charges
prepaid, to the other party's Notice Address or for Tenant to the Premises, to
such other address or addresses as may be designated by the party by notice, and
if to a Mortgagee, to such address as the Mortgagee shall designate in writing
and shall be deemed given upon receipt or refusal of receipt.
17.8 No Waiver. The failure of Landlord or Tenant to complain of any act
or omission by the other shall not be deemed a waiver of any rights provided
under this Lease. Landlord's or Tenant's waiver, express or implied, of any
breach of this Lease shall not be deemed a waiver of a breach of any other
provision or a consent to any subsequent breach of the same or any other
provision. Landlord's consent to or approval to any action on one occasion shall
not be deemed a consent to or approval of any other action or to such action on
any subsequent occasion. Tenant's payment or Landlord's acceptance of a lesser
amount than is due from Tenant to Landlord shall not be deemed anything but
payment on account and Landlord's acceptance of a check for a lesser amount with
an endorsement or statement thereon or upon a letter accompanying the check that
the lesser amount is payment in full shall not be deemed an accord and
satisfaction, and Landlord may accept the check without prejudice to recover the
balance due or pursue any other remedy. The delivery of keys to any employee of
Landlord or to Landlord's Affiliate shall not operate as a termination of this
Lease or surrender of the Premises. All of Landlord's rights and remedies under
this Lease or by operation of law, either at law or in equity, for any breach
shall be distinct, separate, cumulative and non-exclusive and shall not be
deemed inconsistent with each other.
17.09 Force Majeure. With the exception of the payment of money, if any
party's performance of any act is delayed, or prevented because of strikes,
lockouts, power failures, restrictive Laws, riots, insurrection, war, or other
causes beyond such party's reasonable control, then said performance shall be
excused for the period of the delay and any time period shall be extended for an
equivalent period.
17.10 Recording. Tenant shall not record this Lease, but on the request
of either party hereto, both parties hereto shall execute and deliver a notice
of this Lease in form appropriate for recording or registration.
17.11 Waiver of Jury Trial. LANDLORD AND TENANT HEREBY WAIVE TRIAL BY
JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES
HERETO AGAINST THE OTHER, OR IN RESPECT OF ANY MATTER WHATSOEVER ARISING OUT OF
OR IN ANY WAY CONNECTED WITH THIS LEASE.
17.12 Paragraph Headings. All paragraph headings are for convenience and
reference only, and shall not be held to explain, modify, amplify or aid in the
construction, interpretation or meaning of the provisions of this Lease.
17.13 Governing Law. This Lease shall be governed by the laws of the
Commonwealth of Massachusetts.
17.14 Separability; Construction and Interpretation. If any Lease term
or provision or the application thereof to any person or circumstance is invalid
or unenforceable, the remainder of this Lease, or the application of the term or
provision to other persons or circumstances shall not be affected, and the Lease
shall be valid and be enforced to the fullest extent permitted by law. If any
Lease provision is capable of two constructions, then the provision shall have
the meaning which renders it valid.
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17.15. When Lease Becomes Binding; Entire Agreement. Landlord's Affiliates
have no authority to make or agree to make a lease or any other agreement or
undertaking, and the submission of this document for examination and negotiation
does not constitute an offer to lease, or a reservation of, or option for, the
Premises, and this document shall become effective and binding only upon the
execution and delivery by both Landlord and Tenant. All negotiations,
considerations, representations, and understandings between Landlord and Tenant
are incorporated herein, and no oral statements or prior or contemporaneous
written matter, whether by the parties or otherwise, which is not specifically
incorporated herein shall be of any force or effect.
17.16 Execution. This Lease may be executed in any number of original
counterparts. Each fully executed counterpart shall be deemed an original.
17.17 Covenants and Conditions. Each term and each provision of this
Lease to be performed by Tenant shall be construed to be both a covenant and a
condition.
17.18 Harmony. Tenant agrees that with respect to all work of any nature
performed during the Term for Tenant, whether related to leasehold improvements,
alterations or any other type or manner of work, including without limitation
Tenant's Work, Tenant and Tenant's Affiliates shall work in harmony with
Landlord and with other tenants and occupants of the Park, and such other
contractors, workers, mechanics, suppliers and invitees as shall be working
thereon or thereat from time to time prior to or during the Term. If at any time
the presence of Tenant's agents, contractors, workers, mechanics, suppliers
and/or invitees shall cause or threaten to cause disharmony or otherwise
interfere with the orderly operation of other businesses then in the Park,
Landlord shall have the right upon written notice to Tenant, to order Tenant to
cease all work on the Premises, in which event all work then in progress shall
be halted and shall not be recommenced until and unless the conflict(s) which
led to Landlord's delivering such notice to Tenant shall have been resolved.
17.19 Non-Smoking Premises. Tenant acknowledges that the Premises are in
a non-smoking building. No smoking is allowed inside the Premises. To the extent
Tenant's employees desire to smoke outside of the Premises, smoking shall be
permitted only in those exterior areas designated by Landlord.
ARTICLE XVIII - RIGHT OF FIRST OFFER
18.1 Right of First Offer. In no event shall Landlord decide to lease,
agree to lease, or accept any offer to lease space that becomes available during
the Term hereof (as the same may be extended hereunder) within the Park (each
such space being an "Offer Space"), unless Landlord first affords Tenant an
opportunity to lease such Offer Space in accordance with the provisions of this
Article XVIII and only after written notice to Tenant, which notice shall be
delivered only at such time as Landlord intends to offer the Offer Space to the
market. Landlord's notice to Tenant with respect to the Offer Space ("Landlord's
Offer") shall set forth all of the essential terms and conditions upon which
Landlord proposes to lease the Offer Space.) Upon receipt of Landlord's Offer,
and provided further that there does not then exist an uncured, continuing
Default under this Lease and provided further that the Tenant specified in
Article I hereof and/or a Tenant Entity are then leasing and occupying at least
fifty percent (50%) of the Premises, then Tenant shall have a right to lease the
Offer Space on the terms set forth in Landlord's Offer by giving notice to
Landlord to such effect within fourteen (14) days after Tenant's receipt of
Landlord's Offer. If such notice is not so timely given by Tenant, then Landlord
shall be free to lease the Offer Space, or portion thereof, to any third party
on the terms and conditions contained in Landlord's Offer (or such greater price
or more favorable lease terms) at any time after the expiration of said fourteen
(14) day period, subject to Section 18.2 below.
18.2 Partial Waiver of Rights: Substantial Modification of Offer. The
non-exercise by Tenant of its rights under Article XVIII as to any one Offer
Space by Landlord, shall not be deemed to waive any of Tenant's rights of first
offer as to the remainder of any Offer Space that becomes available within the
Park, or as to the rentable area described in Landlord's Offer if Landlord
determines to "substantially" modify or "substantially" amend the terms of the
offering from those specified in Landlord's Offer (in which event Tenant's
rights hereunder shall revive and continue with respect to such modified or
amended terms. For purposes hereof, the term "substantially" shall mean an
Effective Rent (hereinafter defined) set forth in the amended terms being
offered by Landlord to third parties which is not less than ninety-five percent
(95%) of the Effective Rent offered to Tenant in
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Landlord's Offer and refused by Tenant. As used herein, "Effective Rent" shall
mean the fixed rent specified in Landlord's Offer or in any third-party offers
made by Landlord ("Third Party Offer"), as the case may be, after deducting
from such fixed rent as and to the extent included therein: (i) the sum of the
build-out allowance or obligation, if any, provided by Landlord in Landlord's
Offer or the Third Party Offer, amortized over the initial term specified in
the respective offer, (ii) the cost of so-called free rent, if any, applicable
during the initial term amortized over the initial term specified in the
respective offer, (iii) the cost of any architectural or plan allowance, moving
allowance, holdover contributions or similar financial tenant inducements as
set forth in Landlord's Offer or the Third Party Offer, amortized over the
initial term specified in the respective offer; and (iv) any necessary
adjustments to take into account differences in the two offers, such as any
additional rent payments required on account of utilities or Park Expense Rent.
18.3 Lease Amendment. In the event that Tenant accepts Landlord's
Offer to lease such Offer Space in the Park, which is the subject of Landlord's
offer to Tenant, then Landlord and Tenant hereby agree that they shall enter
into a mutually acceptable agreement amending, modifying or supplementing this
Lease, specifying that such Offer Space is a part of the Premises under this
Lease and demising said Offer Space to Tenant. Such amendment shall be upon all
of the same terms and conditions of this Lease, except to the extent otherwise
set forth in Landlord's Offer, and shall be signed by Tenant within thirty (30)
days of receipt of the proposed agreement from the Landlord in the form as
hereinabove required.
18.4 Complete Waiver of Rights. Notwithstanding anything to the
contrary in Article XVIII, if Tenant notifies Landlord of its election to lease
the Offer Space which was the subject of Landlord's Offer and then fails to
execute and deliver the required amendment to this Lease within five (5)
business days after the same has been mutually agreed upon by Landlord and
Tenant in accordance with this Article XVIII, Tenant shall be deemed bound by
the terms and conditions of the required amendment, and failure to observe any
of the terms of the required amendment shall be deemed a Default hereunder.
Otherwise, if Landlord and Tenant, each acting reasonably and in good faith
fail to agree on a mutually agreeable form of amendment to this Lease (or
separate lease agreement, as the case may be) within said thirty (30) day period
upon receipt of Landlord's proposed form of agreement, unless such date is
extended by mutual agreement of both parties hereto, then such failure shall be
treated as a non-exercise by Tenant of its right of first offer in accordance
with the first paragraph of this Article XVIII.
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EXECUTED AS A SEALED INSTRUMENT, effective as of the date first set forth in
Article I above.
WITNESS: LANDLORD:
BPF TECH CENTRAL, LLC, Delaware limited liability
company
By: Xxxx Xxxxxxxxx Properties, Inc., a Delaware
corporation, as its Agent
__________________________ By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------------------
Xxxxxxx X. Xxxxxxxx, Chief Operating Officer
WITNESS: TENANT:
AGILENT TECHNOLOGIES, INC.
__________________________ By: /s/ Xxxxx Oh Xxxxx
---------------------------------------
(Authorized Officer)
Print Name: Xxxxx Oh Xxxxx
-------------------------------
Title: Vice President, Assistant Secretary
-----------------------------------
and Assistant General Secretary
-----------------------------------
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