EXHIBIT 10.10
00 XXXXXXXX XXXXXX
XXXXXXXXX, XXXXXXXXXXXXX
LEASE DATED SEPTEMBER 11, 1996
THIS INSTRUMENT IS AN INDENTURE OF LEASE in which the Landlord and the
Tenant are the parties hereinafter named, and which relates to space in a
certain building (the "Building") known as, and with an address at, 00 Xxxxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx.
The parties to this Indenture of Lease hereby agree with each other as
follows:
ARTICLE I
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REFERENCE DATA
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1.1 Subjects Referred To:
Each reference in this Lease to any of the following subjects shall be
construed to incorporate the data stated for that subject in this Article:
LANDLORD: Xxxxxxxx X. Xxxxxxxxx and Xxxxxx X.
Xxxxx, Trustees of 00 Xxxxxxxx Xxxxxx
Trust under Declaration of Trust dated
September 28, 1981 filed with the
Middlesex South Registry District as
Document No. 616455 as amended by
instruments dated December 10, 1984 and
April 17, 1991 respectively filed with
said Registry District as Document Nos.
675674 and 844541 but not individually.
LANDLORD'S ORIGINAL c/o Boston Properties, Inc.
ADDRESS: 0 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
LANDLORD'S CONSTRUCTION Xxxxxx X. Xxxxx
REPRESENTATIVE:
TENANT: Xxxxxxxx.xxx, Inc. a California
corporation
TENANT'S ORIGINAL 000 Xxxxxxx Xxxxxx
XXXXXXX: Xxxxx Xxxxxxx, Xxxxxxxxxx 00000
TENANT'S CONSTRUCTION Xxxx X. Xxxxxxxx
REPRESENTATIVE:
SPECIAL ALLOWANCE: As defined in Section 3.1.1
SCHEDULED TERM December 1, 1996
COMMENCEMENT DATE:
COMMENCEMENT DATE: As defined in Sections 2.4 and 3.2
OUTSIDE COMPLETION DATE: December 15, 1996
ORIGINAL TERM: Sixty (60) calendar months (plus the
partial month, if any, immediately
following the Commencement Date),
unless extended or sooner terminated as
provided in this Lease.
EXTENSION OPTION: Two (2) periods of three (3) years
each, as provided and on the terms set
forth in Section 2.4.1.
TERM OR LEASE TERM: All references in this Lease to the
Term or Lease Term shall mean the
Original Term and if extended pursuant
to Section 2.4.1, the Original Term as
extended by the exercise of the
applicable extension options unless
otherwise specifically provided in this
Lease.
THE SITE: That certain parcel of land known as
and numbered 00 Xxxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxx Xxxxxx,
Xxxxxxxxxxxxx, being more particularly
described in Exhibit A attached hereto.
THE BUILDING: The Building known as and numbered 00
Xxxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxxxxxx. The Building is
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appropriately labeled on Exhibit A-1
attached hereto and hereby made a part
hereof.
THE COMPLEX: The Building together with all surface
parking areas, the Site and all
improvements (including landscaping)
thereon and thereto.
TENANT'S SPACE: A portion of the first floor of the
Building in accordance with the floor
plan attached hereto as Exhibit D and
incorporated herein by reference.
NUMBER OF PARKING SPACES: 38 spaces.
ANNUAL FIXED RENT: During the Term of this Lease at the
annual rate of $247,975.00 (being the
product of (i) $22.75 and (ii) the
"Rentable Floor Area of Tenant's Space"
(hereinafter defined in this Section
1.1).
OPERATING EXPENSES: As provided in Section 2.6 hereof.
REAL ESTATE TAXES: As provided in Section 2.7 hereof.
TENANT ELECTRICITY: Initially as provided in Section 2.5
subject to adjustment as provided in
Section 2.8 hereof.
ADDITIONAL RENT: All charges and other sums payable by
Tenant as set forth in this Lease, in
addition to Annual Fixed Rent.
RENTABLE FLOOR AREA 10,900 square feet.
OF TENANT'S SPACE
(SOMETIMES ALSO
CALLED RENTABLE FLOOR
AREA OF THE PREMISES):
TOTAL RENTABLE FLOOR 122,328 square feet.
AREA OF THE BUILDING:
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PERMITTED USES: General office purposes.
INITIAL MINIMUM $2,000,000.00 combined single limit
LIMITS OF TENANT'S per occurrence on a per location
COMMERCIAL GENERAL basis.
LIABILITY INSURANCE:
RECOGNIZED BROKERS: Xxxxxxxxx & Xxxx
000 Xxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
And
Leggat XxXxxx/Xxxxx & Xxxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
SECURITY DEPOSIT: $150,000.00
1.2 Exhibits. There are incorporated as part of this Lease:
EXHIBIT A Description of Site
EXHIBIT A-1 Site Plan
EXHIBIT B Intentionally Omitted
EXHIBIT C Landlord's Services
EXHIBIT D Floor Plan
EXHIBIT E Form of Commencement Date
Agreement
1.3 Table of Articles and Sections
ARTICLE I-REFERNCE DATA
1.1 Subjects Referred to
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1.2 Exhibits
1.3 Table of Articles and Sections
ARTICLE II-THE BUILDINGS, PREMISES, TERM AND RENT
2.1 The Premises
2.2 Rights To Use Common Facilities
2.2.1 Tenant's Parking
2.3 Landlord's Reservations
2.4 Original Term
2.4.1 Extension Options
2.5 Monthly Fixed Rent Payments
2.6 Adjustment for Operating Expenses
2.7 Adjustment for Real Estate Taxes
2.8 Adjustment for Tenant Electricity
ARTICLE III-CONSTRUCTION
3.1 Tenant's Plans and Tenant Plan Excess Costs
3.1.1 Special Allowance
3.2 Landlord's and Tenant's Work; Delays
3.3 Alterations and Additions
3.4 General Provisions Applicable to Construction
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ARTICLE IV-LANDLORD'S COVENANTS; INTERRUPTIONS AND DELAYS
4.1 Landlord's Covenants
4.1.1 Services Furnished by Landlord
4.1.2 Additional Services Available to Tenant
4.1.3 Roof, Exterior Wall, Floor Slab and Common Facility Repairs
4.1.4 Door Signs
4.2 Interruptions and Delays in Services and Repairs, etc.
ARTICLE V-TENANT'S COVENANTS
5.1 Payments
5.2 Repair and Yield Up
5.3 Use
5.4 Obstructions; Items Visible From Exterior; Rules and Regulations
5.5 Safety Appliances; Licenses
5.6 Assignment; Sublease
5.7 Indemnity; Insurance
5.8 Personal Property at Tenant's Risk
5.9 Right of Entry
5.10 Floor Load; Prevention of Vibration and Noise
5.11 Personal Property Taxes
5.12 Compliance with Laws
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5.13 Payment of Litigation Expenses
ARTICLE VI-CASUALTY AND TAKING
6.1 Fire and Casualty-Termination or Restoration; Rent Adjustment
6.2 Uninsured Casualty
6.3 Eminent Domain-Termination or Restoration
6.4 Eminent Domain Damages Reserved
ARTICLE VII-DEFAULT
7.1 Tenant's Default
7.2 Landlord's Default
ARTICLE VIII-MISCELLANEOUS PROVISIONS
8.1 Extra Hazardous Use
8.2 Waiver
8.3 Cumulative Remedies
8.4 Quiet Enjoyment
8.5 Notice To Mortgagee and Ground Lessor
8.6 Assignment of Rents
8.7 Surrender
8.8 Brokerage
8.9 Invalidity of Particular Provisions
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8.10 Provisions Binding, Etc.
8.11 Recording
8.12 Notices
8.13 When Lease Becomes Binding
8.14 Section Headings
8.15 Rights of Mortgagee
8.16 Status Report and Financial Statements
8.17 Self-Help
8.18 Holding Over
8.19 Non-Subrogation
8.20 Security Deposit
8.21 Late Payment
8.22 Tenant's Termination Right
8.23 Governing Law
ARTICLE II
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BUILDING, PREMISES, TERM AND RENT
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2.1 Landlord hereby demises and leases to Tenant, and Tenant hereby hires and
accepts from Landlord, Tenant's Space in the Building excluding exterior
faces of exterior walls, the common stairways and stairwells, elevators and
elevator xxxxx, fan rooms, electric and telephone closets, janitor closets,
and pipes, ducts, conduits, wires and appurtenant fixtures serving
exclusively, or in common, other parts of the Building, and if Tenant's
Space includes less than the entire rentable area of any floor, excluding
the common corridors, elevator lobbies and toilets located on such floor.
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Tenant's Space with such exclusions is hereinafter referred to as the
"Premises". The term "Building" means the Building identified on the first
page, and which is the subject of this Lease; the term "Site" means all,
and also any part of the Land described in Exhibit A, plus any additions
or reductions thereto resulting from the change of any abutting street
line and all parking areas and structures. The term "Property" means the
Building and the Site.
2.2 Tenant shall have, as appurtenant to the Premises, the non-exclusive right
to use in common with others, subject to reasonable rules of general
applicability to tenants of the Building from time to time made by
Landlord of which Tenant is given notice (a) the common lobbies,
corridors, stairways, elevators and loading area of the Building, and the
pipes, ducts, conduits, wires and appurtenant meters and equipment serving
the Premises in common with others, (b) common walkways and driveways
necessary for access to the Building, and (c) if the Premises include less
than the entire rentable floor area of any floor, the common toilets,
corridors and elevator lobby of such floor.
2.2.1 In addition, Tenant shall have the right to use the Number of Parking
Spaces (referred to in Section 1.1) of the parking area, in common with
use by other tenants from time to time of the Complex; provided, however,
Landlord shall not be obligated to furnish stalls or spaces in any parking
area specifically designated for Tenant's use. Tenant covenants and agrees
that it and all persons claiming by, through and under it, shall at all
times abide by all reasonable rules and regulations promulgated by
Landlord with respect to the use of the parking areas on the Site. The
parking privileges granted herein are non-transferrable except to a
permitted assignee or subtenant as provided in Section 5.6 through Section
5.6.6. Further, Landlord assumes no responsibility whatsoever for loss or
damage due to fire, theft or otherwise to any automobile(s) parked on the
Site or to any personal property therein, however caused, and Tenant
covenants and agrees, upon request from Landlord from time to time, to
notify its officers, employees, agents and invitees of such limitation of
liability. Tenant acknowledges and agrees that a license only is hereby
granted, and no bailment is intended or shall be created.
2.3 Landlord reserves the right from time to time, without unreasonable
interference with Tenant's use: (a) to install, use, maintain, repair,
replace and relocate for service to the Premises and other parts of the
Building, or either, pipes, ducts, conduits, wires and appurtenant
fixtures, wherever located in the Premises or Building, and (b) to alter
or relocate any other common facility, provided that substitutions are
substantially equivalent or better. Installations, replacements and
relocations referred to in clause (a) above shall be located so far as
practicable in the central core area of the Building, above ceiling
surfaces, below floor surfaces or within perimeter walls of the Premises.
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2.4 Tenant shall have and hold the Premises for a period commencing on the
earlier of (a) that date on which the Premises are ready for occupancy as
in Section 3.2 provided, or (b) that date on which Tenant commences
occupancy of any portion of the Premises for the Permitted Uses, and
continuing for the Term unless sooner terminated as provided in Article VI
or Article VII or unless extended as provided in Section 2.4.1.
As soon as may be convenient after the date has been determined on which
the Term commences as aforesaid, Landlord and Tenant agree to join with
each other in the execution of a written Declaration, in the form of
Exhibit E, in which the date on which the Term commences as aforesaid and
the Term of this Lease shall be stated. If Tenant shall fail to execute
such Declaration, the Commencement Date and Lease Term shall be as
reasonably determined by Landlord in accordance with the terms of this
Lease.
2.4.1 (A) Provided that at the time of exercise of the applicable option to
extend and at the commencement date of the applicable extension option
period (i) there exists no event of default (defined in Section 7.1), (ii)
this Lease is still in full force and effect, and (iii) Tenant has neither
assigned this Lease nor sublet the Premises (except for an assignment or
subletting permitted under Section 5.6.1 hereof), Tenant shall have the
right to extend the Term hereof upon all the same terms, conditions,
covenants and agreements herein contained (except for the Annual Fixed
Rent which shall be adjusted during the option periods as hereinbelow set
forth) for two (2) successive periods of three (3) years each as
hereinafter set forth. Each option period is sometimes herein referred to
as an "Extended Term".
(B) If Tenant desires to exercise the applicable option to extend the
Term, then Tenant shall give notice to Landlord, not earlier than twelve
(12) months nor later than nine (9) months prior to the expiration of the
then current Term of Tenant's request for Landlord's quotation of the
annual fair market rent for the Premises as of the commencement date of
the applicable extension period, such quotation to be based on the use of
the Premises as first class office space utilizing properties of a similar
character within the Boston West Suburban market (hereinafter called the
"Annual Market Rent"). Within thirty (30) days after Landlord's receipt of
Tenant's notice requesting such a quotation, Landlord shall notify Tenant
of Landlord's quotation of the Annual Market Rent. Within fifteen (15)
days after receipt by Tenant of Landlord's quotation of the Annual Market
Rent, Tenant shall have the right to extend the Term by written notice to
Landlord within said last mentioned 15-day period upon all of the same
terms, conditions, covenants and agreements contained in this Lease,
except that the annual fixed rent for the applicable option period shall
be equal to the Annual Market Rent per square foot as quoted by Landlord
for the applicable option period multiplied by the Rentable Floor Area of
the Premises; provided, however, that in no event shall the annual fixed
rent payable during the applicable option period be less than the annual
fixed rent for the last year of the
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Term of this Lease as it may have been extended and further that the only
extension options shall be those set forth in this Section 2.4.1. Upon the
giving of such notice, this Lease and the Term hereof shall be extended
for the applicable option period, without the necessity for the execution
of any additional documents (except that Landlord and Tenant agree to
enter into an instrument in writing setting forth the fixed rent); and in
such event all references herein to the Term or the term of this Lease
shall be construed as referring to the Term, as so extended, unless the
context clearly otherwise requires. Notwithstanding anything herein
contained to the contrary, in no event shall Tenant have the right to
exercise more than one extension option at a time and, further, Tenant
shall not have the right to exercise its second extension option unless it
has duly exercised its first extension option and in no event shall the
Lease Term hereof be extended for more than six (6) years after the
expiration of the Original Term hereof.
2.5 Tenant agrees to pay to Landlord, or as directed by Landlord, at
Landlord's Original Address specified in Section 1.1 hereof, or at such
other place as Landlord shall from time to time designate by notice, (1)
on the Commencement Date (defined in Section 1.1 hereof) and thereafter
monthly, in advance, on the first day of each and every calendar month
during the Original Term, a sum equal to one twelfth (1/12th) of the
applicable Annual Fixed Rent (sometimes hereinafter referred to as "fixed
rent") and (2) on the Commencement Date and thereafter monthly, in
advance, on the first day of each and every calendar month during the
Original Term, a sum equal to one twelfth (1/12th) of $0.85 per annum for
each square foot of Rentable Floor Area of Tenant's Space for tenant
electricity subject to escalation as provided in Section 2.8. Until notice
of some other designation is given, fixed rent and all other charges for
which provision is herein made shall be paid by remittance to or for the
order of Boston Properties, Inc., Agents, at 0 Xxxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, and all remittances received by Boston Properties,
Inc., as Agents as aforesaid, or by any subsequently designated recipient,
shall be treated as payment to Landlord.
Annual Fixed Rent for any partial month shall be paid by Tenant to
Landlord at such rate on a pro rata basis, and, if the Commencement Date
is a day other than the first day of a calendar month, the first payment
which Tenant shall make to Landlord shall be a payment equal to a
proportionate part of such monthly Annual Fixed Rent for the partial month
from the Commencement Date to the first day of the succeeding calendar
month.
Other charges payable by Tenant on a monthly basis, as hereinafter
provided, likewise shall be prorated, and the first payment on account
thereof shall be determined in similar fashion but shall commence on the
Commencement Date; and other provisions of this
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Lease calling for monthly payments shall be read as incorporating this
undertaking by Tenant.
The Annual Fixed Rent and all other charges for which provision is herein
made shall be paid by Tenant to Landlord, without offset, deduction or
abatement except as otherwise specifically set forth in this Lease.
2.6 "Landlord's Operating Expenses" means the cost of operation of the
Building and the Site which shall exclude costs of special services
rendered to tenants (including Tenant) for which a separate charge is
made, but shall include, without limitation, the following: premiums for
insurance carried with respect to the Building and the Site (including,
without limitation, liability insurance, insurance against loss in case of
fire or casualty and insurance of monthly installments of fixed rent and
any Additional Rent which may be due under this Lease and other leases of
space in the Building for not more than 12 months in the case of both
fixed rent and Additional Rent and if there be any first mortgage of the
Property, including such insurance as may be required by the holder of
such first mortgage); compensation and all fringe benefits, workmen's
compensation insurance premiums and payroll taxes paid to, for or with
respect to all persons engaged in the operating, maintaining or cleaning
of the Building or Site, water, sewer, electric, gas, oil and telephone
charges (excluding utility charges separately chargeable to tenants for
additional or special services); cost of building and cleaning supplies
and equipment; cost of maintenance, cleaning and repairs (other than
repairs not properly chargeable against income or reimbursed from
contractors under guarantees); cost of snow removal and care of
landscaping; payments under service contracts with independent
contractors; management fees at reasonable rates consistent with the type
of occupancy and the service rendered; and all other reasonable and
necessary expenses paid in connection with the operation, cleaning and
maintenance of the Building and the Site and properly chargeable against
income, provided, however, there shall be included (a) depreciation for
capital expenditures made by Landlord (i) to reduce operating expenses if
Landlord shall have reasonably determined that the annual reduction in
operating expenses shall exceed depreciation therefor or (ii) to comply
with applicable laws, rules, regulations, requirements, statutes,
ordinances, by-laws and court decisions of all public authorities which
are now or hereafter in force (herein collectively called "Legal
Requirements"); plus (b) in the case of both (i) and (ii) an interest
factor, reasonably determined by Landlord, as being the interest rate then
charged for long term mortgages by institutional lenders on like
properties within the locality in which the Building is located;
depreciation in the case of both (i) and (ii) shall be determined by
dividing the original cost of such capital expenditure by the number of
years of useful life of the capital item acquired and the useful life
shall be reasonably determined by Landlord in accordance with generally
accepted accounting principles and practices in effect at the time of
acquisition of the capital item.
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"Operating Expenses Allocable to the Premises" shall mean the same
proportion of Landlord's Operating Expenses for and pertaining to the
Building and the Site as the Rentable Floor Area of Tenant's Space bears
to the Total Rentable Floor Area of the Building.
"Base Operating Expenses" shall mean Landlord's Operating Expenses for the
Property for the twelve (12) month period commencing on the Commencement
Date of this Lease and expiring on the day immediately preceding the first
annual anniversary of the Commencement Date (herein sometimes called the
"Base Period") subject, however, to the following provisions of this
Section 2.6.
"Base Operating Expenses Allocable to the Premises" shall mean the same
proportion of Base Operating Expenses as the Rentable Floor Area of
Tenant's Space bears to the Total Rentable Floor Area of the Building.
In the event that on the average less than ninety-five percent (95%) of
the Rentable Floor Area of the Building is leased during any calendar year
during the Lease Term (or during the Base Period for purposes of
calculating Base Operating Expenses), Landlord's Operating Expenses for
such calendar year or Base Period, as the case may be, shall be determined
by Landlord to be an amount equal to the Landlord's Operating Expenses
which would normally be expected to have been charged or incurred had
ninety-five percent (95%) of the Rentable Floor Area of the Building been
leased during such calendar year or Base Period, as the case may be.
If with respect to any calendar year falling within the Term, or fraction
of a calendar year falling within the Term at the beginning or end
thereof, the Operating Expenses Allocable to the Premises for a full
calendar year exceed Base Operating Expenses Allocable to the Premises or
for any such fraction of a calendar year exceed the corresponding fraction
of Base Operating Expenses Allocable to the Premises (such amount being
hereinafter sometimes referred to as the "Operating Cost Excess") then
Tenant shall pay to Landlord, as Additional Rent, the mount of such
excess. Such payments shall be made at the times and in the manner
hereinafter provided in this Section 2.6. (The Base Operating Expenses
Allocable to the Premises do not include the $0.85 for tenant electricity
to be paid by Tenant together with Annual Fixed Rent and for which
provision is made in Section 2.5 hereof, separate provision being made in
Section 2.8 of this Lease for Tenant's share of increases in electricity
costs.)
Not later than ninety (90) days after the end of the first calendar year
or fraction thereof ending December 31 and of each succeeding calendar
year during the Term or fraction thereof at the end of the Term, Landlord
shall render Tenant a statement in reasonable detail and according to
usual accounting practices certified by a representative of Landlord,
showing for the preceding calendar year or fraction thereof, as the case
may be,
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Base Operating Expenses, Landlord's Operating Expenses and Operating
Expenses Allocable to the Premises. Said statement to be rendered to
Tenant shall also show for the preceding year or fraction thereof as the
case may be the amounts of operating expenses already paid by Tenant as
Additional Rent on account of the operating expenses and the amount of the
Operating Cost Excess remaining due from, or overpaid by, Tenant for the
year or other period covered by the statement. Within thirty (30) days
after the date of delivery of such statement, Tenant shall pay to Landlord
the balance of the amounts, if any, required to be paid pursuant to the
above provisions of this Section 2.6 with respect to the preceding year or
fraction thereof, or Landlord shall credit any amounts overpaid by Tenant
against (i) monthly installments of fixed rent next thereafter coming due
or (ii) any sums then due from Tenant to Landlord under this Lease (or
refund such portion of the overpayment as aforesaid if the Term has ended
and Tenant has no further obligation to Landlord).
In addition, Tenant shall make payments monthly on account of Tenant's
share of increases in operating expenses anticipated for the then current
year at the time and in the fashion herein provided for the payment of
fixed rent. The amount to be paid to Landlord shall be an amount
reasonably estimated annually by Landlord to be sufficient to cover, in
the aggregate, a sum equal to the Operating Cost Excess for each calendar
year during the Term.
Notwithstanding the foregoing provisions, no decrease in Landlord's
Operating Expenses shall result in a reduction of the amount otherwise
payable by Tenant if and to the extent said decrease is attributable to
vacancies in the Building rather than to any other causes.
2.7 If with respect to any full Tax Year or fraction of a Tax Year falling
within the Term, Landlord's Tax Expenses Allocable to the Premises (as
hereinafter defined) for a full Tax Year exceed Base Taxes Allocable to
the Premises or for any such fraction of a Tax Year exceed the
corresponding fraction of Base Taxes Allocable to the Premises (such
amount being hereinafter sometimes referred to as the "Tax Excess") then,
on or before the thirtieth (30th) day following receipt by Tenant of the
certified statement referred to below in this Section 2.7, Tenant shall
pay to Landlord, as Additional Rent, the amount of the Tax Excess. In
addition, payments by Tenant on account of the Tax Excess anticipated for
the then current year shall be made monthly at the time and in the fashion
herein provided for the payment of fixed rent. The amount so to be paid to
Landlord shall be an amount reasonably estimated by Landlord to be
sufficient to provide Landlord, in the aggregate, a sum equal to the Tax
Excess at least ten (10) days before the day on which such payments by
Landlord would become delinquent. Not later than ninety (90) days after
Landlord's Tax Expenses Allocable to the Premises are determined for the
first such Tax Year or fraction thereof and for each succeeding Tax Year
or fraction thereof during the Term, Landlord shall render Tenant a
statement in reasonable detail certified
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by a representative of Landlord showing for the preceding year or fraction
thereof, as the case may be, real estate taxes on the Building and the
Site and abatements and refunds of any taxes and assessments. Expenditures
for legal fees and for other expenses incurred in obtaining the tax refund
or abatement may be charged against the tax refund or abatement before the
adjustments are made for the Tax Year.
To the extent that real estate taxes shall be payable to the taxing
authority in installments with respect to periods less than a Tax Year,
the foregoing statement shall be rendered and payments made on account of
such installments. Notwithstanding the foregoing provisions, no decrease
in Landlord's Tax Expenses with respect to any Tax Year shall result in a
reduction of the amount otherwise payable by Tenant if and to the extent
said decrease is attributable to vacancies in the Building or partial
completion of the Building rather than to any other causes.
Terms used herein are defined as follows:
(i) "Tax Year" means the twelve-month period beginning July 1 each
year during the Term or if the appropriate governmental tax
fiscal period shall begin on any date other than July 1, such
other date.
(ii) "Landlord's Tax Expenses Allocable to the Premises" shall mean
the same proportion of Landlord's Tax Expenses for and
pertaining to the Building and the Site as the Rentable Floor
Area of Tenant's Space bears to 95% of the Total Rentable Floor
Area of the Building.
(iii) "Landlord's Tax Expenses" with respect to any Tax Year means the
aggregate real estate taxes on the Building and Site with
respect to that Tax Year, reduced by any abatement receipts with
respect to that Tax Year.
(iv) "Base Taxes" means Landlord's Tax Expenses (hereinbefore
defined) for fiscal tax year 1997 (that is, the period beginning
July 1, 1996 and ending June 30, 1997).
(v) "Base Taxes Allocable to the Premises" means the same proportion
of Base Taxes as the Rentable Floor Area of Tenant's Space bears
to 95% of the Total Rentable Floor Area of the Building.
(vi) "Real estate taxes" means all taxes and special assessments of
every kind and nature assessed by any governmental authority on
the Building or Site which the Landlord shall become obligated
to pay because of or in
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connection with the ownership, leasing and operation of the Site,
the Building and the Property (including, without limitation, if
applicable the excise prescribed by Mass Gen Laws Chapter 121A,
Section 10 and amounts in excess thereof paid to the Town of
Lexington pursuant to agreement between Landlord and the Town) and
reasonable expenses of any proceedings for abatement of taxes. The
amount of special taxes or special assessments to be included shall
be limited to the amount of the installment (plus any interest,
other than penalty interest, payable thereon) of such special tax or
special assessment required to be paid during the year in respect of
which such taxes are being determined. There shall be excluded from
such taxes all income, estate, succession, inheritance and transfer
taxes; provided, however, that if at any time during the Term the
present system of ad valorem taxation of real property, shall be
changed so that in lieu of, or in addition to, the whole or any part
of the ad valorem tax on real property there shall be assessed on
Landlord a capital levy or other tax on the gross rents received
with respect to the Site or Building or Property, or a federal,
state, county, municipal, or other local income, franchise, excise
or similar tax, assessment, levy or charge (distinct from any now in
effect in the jurisdiction in which the Property is located)
measured by or based, in whole or in part, upon any such gross
rents, then any and all of such taxes, assessments, levies or
charges, to the extent so measured or based, shall be deemed to be
included within the term "real estate taxes" but only to the extent
that the same would be payable if the Site and Building were the
only property of Landlord.
2.8 If with respect to any calendar year falling within the Term or fraction
of a calendar year falling within the Term at the beginning or end
thereof, the cost of furnishing electricity to the Building and the Site,
including common areas and facilities and space occupied by tenants, (but
expressly excluding utility charges separately chargeable to tenants for
additional or special services) for a full calendar year exceeds $0.85 per
square foot of Rentable Floor Area of the Building, or for any such
fraction of a calendar year exceeds the corresponding fraction of $0.85
per square foot of Rentable Floor Area of the Building, then Tenant shall
pay to Landlord, as Additional Rent, on or before the thirtieth (30th) day
following receipt by Tenant of the statement referred to below in this
Section 2.8, its proportionate share of the amount of such excess (i.e.
the same proportion of such excess as the Rentable Floor Area of Tenant's
Space bears to the Total Rentable Floor Area of the Building). Payments by
Tenant on account of such excess shall be made monthly at the time and in
the fashion herein provided for the payment of Annual Fixed Rent. The
amount so to be paid to Landlord shall be an amount from time to time
reasonably estimated by Landlord to be sufficient to cover, in the
aggregate, a sum equal to such excess for each calendar year during the
Term.
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Not later than ninety (90) days after the end of the first calendar year
or fraction thereof ending December 31 and of each succeeding calendar
year during the Term or fraction thereof at the end of the Term, Landlord
shall render Tenant a reasonably detailed accounting certified by a
representative of Landlord showing for the preceding calendar year, or
fraction thereof, as the case may be, the costs of furnishing electricity
to the Building. Said statement to be rendered to Tenant also shall show
for the preceding year or fraction thereof, as the case may be, the amount
already paid by Tenant on account of electricity, and the amount remaining
due from, or overpaid by, Tenant for the year or other period covered by
the statement. Within thirty (30) days after the date of the delivery of
such statement, Tenant shall pay to Landlord the balance of the amounts,
if any required to be paid pursuant to the above provisions of this
Section 2.8 with respect to the preceding year, or fraction thereof, or
Landlord shall credit any amounts due from it to Tenant pursuant to the
above provisions of this Section 2.8 against monthly installments of
Annual Fixed Rent or Additional Rent next thereafter coming due unless the
Lease Term has expired and Tenant has no other or further obligations to
Landlord, in which case Landlord shall promptly refund such amount to
Tenant.
ARTICLE III
-----------
CONSTRUCTION
------------
3.1 Landlord shall perform the work shown on the construction plans for
Tenant's Space which plans are in the process of being completed (the
"Tenant Construction Plans"). Both Landlord and Tenant acting reasonably
and promptly shall have the right to approve the Tenant Construction
Plans. However, Landlord shall have no responsibility, for the
installation or connection of Tenant's computer, telephone or other
communications equipment, systems or wiring.
3.1.1 Landlord shall provide Tenant with a special allowance in the amount of
$130,800.00 to be applied towards the cost of the work to be performed by
Landlord shown on the Tenant Construction Plans. Tenant shall pay
Landlord, as Additional Rent, any cost of performing the work shown on the
Tenant Construction Plans in excess of said special allowance within
thirty (30) days after being billed therefor. In the event that the cost
of the work shown on the Tenant Construction Plans is less than the
special allowance, such excess shall be applied against Annual Fixed Rent
or Additional Rent next due pursuant to this Lease.
3.2 Landlord agrees to use due diligence to complete the work described in
Section 3.1 on or before the Scheduled Term Commencement Date. Landlord
shall not be required to install any improvements which are not in
conformity with the plans and specifications
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for the Building or which are not approved by Landlord's architect. In
case of delays due to governmental regulation, unusual scarcity of or
inability to obtain labor or materials, labor difficulties, casualty or
other causes reasonably beyond Landlord's control (collectively,
"Landlord's Force Majeure"), the Scheduled Term Commencement Date shall be
extended for the period of such delays. The Premises shall be deemed ready
for occupancy on the date on which the work described in Section 3.1,
together with common facilities for access and service to the Premises,
has been substantially completed except for (i) items of work and
adjustment of equipment and fixtures which can be completed after
occupancy thereof has been taken without causing substantial interference
with Tenant's use of the Premises (i.e. so-called "punch list" items) and
items of work for which there is a long lead time in obtaining the
materials therefor or which are specially or specifically manufactured,
produced or milled for the work in or to the Premises and require
additional time for receipt or installation ("long lead" items). Landlord
shall complete as soon as conditions practically permit the punch list
items and the long lead items and Tenant shall not use the Premises in
such manner as will increase the cost of completion. Landlord shall permit
Tenant access for installing furnishings in portions of the Premises when
it can be done without material interference with remaining work. If,
however, Landlord shall have failed to substantially complete the work to
be performed by Landlord in accordance with Section 3.1 (excluding punch
list items and long lead items) on or before the Outside Completion Date
(which date shall be extended automatically for such periods of time as
Landlord is prevented from proceeding with or completing the same by
reason of Landlord's Force Majeure or any act or failure to act of Tenant
which interferes with Landlord's construction of the Premises, without
limiting Landlord's other rights on account thereof), Tenant shall have
the right to terminate this Lease by giving notice to Landlord of Tenant's
desire to do so within the time period from the Outside Completion Date
(as so extended) until the date which is thirty (30) days subsequent to
the Outside Completion Date (as so extended); and, upon the giving of such
notice, the Term of this Lease shall cease and come to an end without
further liability or obligation on the part of either party unless, within
thirty (30) days after Landlord's receipt of Tenant's notice Landlord
substantially completes the work to be performed by Landlord under Section
3.1 (except for punch list items and long lead items) and such fight of
termination shall be Tenant's sole and exclusive remedy at law or in
equity or otherwise for Landlord's failure so to complete such work within
such time.
Tenant agrees that no delay by it, or anyone employed by it, in performing
work to prepare the Premises for occupancy (including, without limitation,
the work in installing telephones and other communications equipment or
systems) shall delay commencement of the Term or the obligation to pay
rent, regardless of the reason for such delay or whether or not it is
within the control of Tenant or any such employee.
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3.3 This Section 3.3 shall apply before and during the Term. Tenant shall not
make alterations and additions to Tenant's space except in accordance with
plans and specifications therefor first approved by Landlord, which
approval shall not be unreasonably withheld. Landlord shall not be deemed
unreasonable for withholding approval of any alterations or additions
which (a) involve or might affect any structural or exterior element of
the Building, any area or element outside of the Premises, or any facility
serving any area of the Building outside of the Premises, or (b) will
delay completion of the Premises or Building, or (c) will require unusual
expense to readapt the Premises to normal office use on Lease termination
or increase the cost of construction or of insurance or taxes on the
Building or of the services called for by Section 4.1 unless Tenant first
gives assurance acceptable to Landlord for payment of such increased cost
and that such readaptation will be made prior to such termination without
expense to Landlord. Landlord's review and approval of any such plans and
specifications and consent to perform work described therein shall not be
deemed an agreement by Landlord that such plans, specifications and work
conform with applicable Legal Requirements and requirements of insurers of
the Building (herein called "Insurance Requirements") nor deemed a waiver
of Tenant's obligations under this Lease with respect to applicable Legal
Requirements and Insurance Requirements nor impose any liability, or
obligation upon Landlord with respect to the completeness, design
sufficiency or compliance of such plans, specifications and work with
applicable Legal Requirements and Insurance Requirements. All alterations
and additions shall be part of the Building unless and until Landlord
shall specify the same for removal pursuant to Section 5.2. All of
Tenant's alterations and additions and installation of furnishings shall
be coordinated with any work being performed by Landlord and in such
manner as to maintain harmonious labor relations and not to damage the
Building or Site or interfere with construction or operation of the
Building and other improvements to the Site and, except for installation
of furnishings, shall be performed by Landlord's general contractor or by
contractors or workmen first approved by Landlord. Except for work by
Landlord's general contractor, Tenant, before its work is started, shall
secure all licenses and permits necessary therefor; deliver to Landlord a
statement of the names of all its contractors and subcontractors and the
estimated cost of all labor and material to be furnished by them and
security satisfactory to Landlord protecting Landlord against liens
arising out of the furnishing of such labor and material; and cause each
contractor to carry Workmen's compensation insurance in statutory amounts
coveting all the contractor's and subcontractor's employees and commercial
general liability insurance or comprehensive general liability insurance
with a broad form comprehensive liability endorsement with such limits as
Landlord may reasonably require, but in no event less than $2,000,000.00
combined single limit per occurrence on a per location basis (all such
insurance to be written in companies approved by Landlord and naming and
insuring Landlord and Landlord's managing agent as additional insureds and
insuring Tenant as well as the contractors), and to deliver to Landlord
certificates of all such insurance. Tenant agrees to pay
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promptly when due the entire cost of any work done on the Premises by
Tenant, its agents, employees, or independent contractors, and not to
cause or permit any liens for labor or materials performed or furnished in
connection therewith to attach to the Premises or the Building or the Site
and immediately to discharge any such liens which may so attach. Tenant
shall pay, as Additional Rent, 100% of any real estate taxes on the
Complex which shall, at any time after commencement of the Term, result
from any alteration, addition or improvement to the Premises made by
Tenant.
3.4 All construction work required or permitted by this Lease shall be done in
a good and workmanlike manner and in compliance with all applicable Legal
Requirements and Insurance Requirements now or hereafter in force. Each
party may inspect the work of the other at reasonable times and shall
promptly give notice of observed defects. Each party authorizes the other
to rely in connection with design and construction upon approval and other
actions on the party's behalf by any Construction Representative of the
party named in Article I or any person hereafter designated in
substitution or addition by notice to the party relying. Except as
otherwise provided in Article IV, the work required of Landlord pursuant
to this Article III shall be deemed approved by Tenant when Tenant
commences occupancy of the Premises for the Permitted Uses, except for
items which are then uncompleted (including punch list items and long lead
items) and as to which Tenant shall have given notice to Landlord prior to
such date.
ARTICLE IV
----------
LANDLORD'S COVENANTS; INTERRUPTIONS AND DELAYS
----------------------------------------------
4.1 Landlord covenants:
4.1.1 To furnish services, utilities, facilities and supplies set forth in
Exhibit C equal to those customarily provided by landlords in high quality
buildings in the Boston West Suburban Market subject to escalation
reimbursement in accordance with Section 2.6.
4.1.2 To furnish, at Tenant's expense, reasonable additional Building operation
services which are usual and customary in similar office buildings in the
Boston West Suburban Market upon reasonable advance request of Tenant at
reasonable and equitable rates from time to time established by Landlord.
4.1.3 Subject to the escalation provisions of Section 2.6 and except as
otherwise provided in Article VI, (i) to make such repairs to the roof,
exterior walls, floor slabs and common areas and facilities as may be
necessary to keep them in serviceable condition and (ii) to maintain the
Building (exclusive of Tenant's responsibilities under this Lease) in a
first
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class manner comparable to the maintenance of similar properties in the
Boston West Suburban Market.
4.1.4 To provide and install, at Landlord's expense, letters or numerals on the
entrance doors to the Premises to identify Tenant's official name and
Building address; all such letters and numerals shall be in the building
standard graphics and no others shall be used or permitted on the
Premises.
4.2 Landlord shall not be liable to Tenant for any compensation or reduction
of rent by reason of inconvenience or annoyance or for loss of business
arising from the necessity of Landlord or its agents entering the
Premises for any of the purposes in this Lease authorized, or for
repairing the Premises or any portion of the Building however the
necessity may occur. In case Landlord is prevented or delayed from making
any repairs, alterations or improvements, or furnishing any services or
performing any other covenant or duty to be performed on Landlord's part,
by reason of any cause reasonably beyond Landlord's control, including
without limitation the causes set forth in Section 3.2 hereof as being
reasonably beyond Landlord's control, Landlord shall not be liable to
Tenant therefor, nor, except as expressly otherwise provided in Article
VI, shall Tenant be entitled to any abatement or reduction of rent by
reason thereof, nor shall the same give rise to a claim in Tenant's favor
that such failure constitutes actual or constructive, total or partial,
eviction from the Premises.
Landlord reserves the right to stop any service or utility system, when
necessary by reason of accident or emergency, or until necessary repairs
have been completed; provided, however, that in each instance of stoppage,
Landlord shall exercise reasonable diligence to eliminate the cause
thereof. Except in case of emergency repairs, Landlord will give Tenant
reasonable advance notice of any contemplated stoppage and will use
reasonable efforts to avoid unnecessary inconvenience to Tenant by reason
thereof.
ARTICLE V
---------
TENANT'S COVENANTS
------------------
Tenant covenants during the term and such further time as Tenant occupies
any part of the Premises:
5.1 To pay when due all fixed rent and Additional Rent and all charges for
utility services rendered to the Premises (except as otherwise provided in
Exhibit C) and, further, as Additional Rent, all charges for additional
services rendered pursuant to Section 4.1.2.
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5.2 Except as otherwise provided in Article VI and Section 4.1.3, to keep the
Premises in good order, repair and condition, reasonable wear and tear
only excepted, and all glass in windows (except glass in exterior walls
unless the damage thereto is attributable to Tenant's negligence or
misuse) and doors of the Premises whole and in good condition with glass
of the same type and quality as that injured or broken, damage by fire or
taking under the power of eminent domain only excepted. At the expiration
or termination of this Lease Tenant shall peaceably yield up the Premises
and all construction, work, improvements, alterations and additions
thereto in good order, repair and condition, reasonable wear and tear only
excepted, first removing all goods and effects of Tenant and, to the
extent specified by Landlord by notice to Tenant given at least ten (10)
days before such expiration or termination, all alterations and additions
made by Tenant and all partitions, and repairing any damage caused by such
removal and restoring the Premises and leaving them clean and neat. Tenant
shall not permit or commit any waste, and Tenant shall be responsible for
the cost of repairs which may be made necessary by reason of damage to
common areas in the Building or to the Site caused by Tenant, Tenant's
independent contractors, Tenant's employees or Tenant's invitees.
5.3 Continuously from the commencement of the Term, to use and occupy the
Premises for the Permitted Uses only, and not to injure or deface the
Premises, Building, the Site or any other part of the Complex nor to
permit in the Premises or on the Site any auction sale, or inflammable
fluids or chemicals, or nuisance, or the emission from the Premises of any
objectionable noise or odor, nor to use or devote the Premises or any part
thereof for any purpose other than the Permitted Uses, nor for any use
thereof which is inconsistent with maintaining the Building as a first
class office building in the quality of its maintenance, use and
occupancy, or which is improper, offensive, contrary to law or ordinance
or liable to render necessary any alteration or addition to the Building.
Further, (i) Tenant shall not, nor shall Tenant permit its employees,
invitees, agents, independent contractors, contractors, assignees or
subtenants to, keep, maintain, store or dispose of (into the sewage or
waste disposal system or otherwise) or engage in any activity which might
produce or generate any substance which is or may hereafter be classified
as a hazardous material, waste or substance (collectively "Hazardous
Materials"), under federal, state or local laws, rules and regulations,
including, without limitation, 42 U.S.C. Section 6901 et seq., 42 U.S.C.
Section 9601 et seq., 42 U.S.C. Section 2601 et seq., 49 U.S.C. Section
1802 et seq. and Massachusetts General Laws, Chapter 21E and the rules and
regulations promulgated under any of the foregoing, as such laws, rules
and regulations may be amended from time to time (collectively "Hazardous
Materials Laws"), (ii) Tenant shall immediately notify Landlord of any
incident in, on or about the Premises, the Building or the Site that would
require the filing of a notice under any Hazardous Materials Laws, (iii)
Tenant shall comply and shall cause its employees, invitees, agents,
independent contractors, contractors, assignees and subtenants to comply
with each of the foregoing and (iv) Landlord shall have the right to make
such
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inspections (including testing) as Landlord shall elect from time to time
to determine that Tenant is complying with the foregoing.
5.4 Not to obstruct in any manner any portion of the Building not hereby
leased or any portion thereof or of the Site used by Tenant in common with
others; not without prior consent of Landlord to permit the painting or
placing of any signs, curtains, blinds, shades, awnings, aerials or
flagpoles, or the like, visible from outside the Premises; and to comply
with all reasonable Rules and Regulations now or hereafter made by
Landlord, of which Tenant has been given notice, for the care and use of
the Building and Site and their facilities and approaches; Landlord shall
not be liable to Tenant for the failure of other occupants of the Building
to conform to such Rules and Regulations.
5.5 To keep the Premises equipped with all safety appliances required by any
public authority because of any use made by Tenant other than normal
office use, and to procure all licenses and permits so required because of
such use and, if requested by Landlord, to do any work so required because
of such use, it being understood that the foregoing provisions shall not
be construed to broaden in any way Tenant's Permitted Uses.
5.6 Except as otherwise expressly provided herein, Tenant covenants and agrees
that it shall not assign, mortgage, pledge, hypothecate or otherwise
transfer this Lease and/or Tenant's interest in this Lease or sublet
(which term, without limitation, shall include granting of concessions,
licenses or the like) the whole or any part of the Premises. Any
assignment, mortgage, pledge, hypothecation, transfer or subletting not
expressly permitted in or consented to by Landlord under Sections
5.6.1-5.6.6 shall be void, ab initio; shall be of no force and effect; and
shall confer no rights on or in favor of third parties. In addition,
Landlord shall be entitled to seek specific performance of or other
equitable relief with respect to the provisions hereof.
5.6.1 Notwithstanding the provisions of Section 5.6 above and the provisions of
Section 5.6.2, 5.6.3 and 5.6.5 below, Tenant shall have the right to
assign this Lease or to sublet the Premises (in whole or in part) to any
parent or subsidiary corporation of Tenant or to any corporation into
which Tenant may be converted or with which it may merge, provided that
the entity to which this Lease is so assigned or which so sublets the
Premises has a credit worthiness (e.g. assets on a pro forma basis using
generally accepted accounting principles consistently applied and using
the most recent financial statements) which is the same or better than the
Tenant as of the date of this Lease. Any such assignment or subletting
shall be subject to the provisions of Section 5.6.4 and Section 5.6.6
below.
5.6.2 Notwithstanding the provisions of Section 5.6 above, in the event Tenant
desires to assign this Lease or to sublet the Premises in whole but not in
part (no partial subletting being permitted other than as provided in
Section 5.6.1), Tenant shall notify Landlord thereof in
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writing and Landlord shall have the right at its sole option, to be
exercised within thirty (30) days after receipt of Tenant's notice, to
terminate this Lease as of a date specified in a notice to Tenant, which
date shall not be earlier than sixty (60) days nor later than one hundred
and twenty (120) days after Landlord's notice to Tenant; provided,
however, that upon the termination date as set forth in Landlord's notice,
all obligations relating to the period after such termination date (but
not those relating to the period before such termination date) shall cease
and promptly upon being billed therefor by Landlord, Tenant shall make
final payment of all rent and Additional Rent due from Tenant through the
termination date.
In the event that Landlord shall not exercise its termination rights as
aforesaid, or shall fail to give any or timely notice, the provisions of
Sections 5.6.3-5.6.6 shall be applicable. This Section 5.6.2 shall not be
applicable to an assignment or sublease pursuant to Section 5.6.1.
5.6.3 Notwithstanding the provisions of Section 5.6 above, but subject to the
---
provisions of this Section 5.6.3 and the provisions of Sections 5.6.4,
5.6.5 and 5.6.6 below, in the event that Landlord shall not have exercised
the termination right as set forth in Section 5.6.2, then for a period of
one hundred twenty (120) days after the receipt of Tenant's notice
referred to in Section 5.6.2, Tenant shall have the right to assign this
Lease or sublet the whole (but not part) of the Premises in accordance
with Tenant's notice to Landlord given as provided in Section 5.6.4
provided that, in each instance, Tenant first obtains the express prior
written consent of Landlord, which consent shall not be unreasonably
withheld or delayed. Landlord shall not be deemed to be unreasonably
withholding its consent to such a proposed assignment or subleasing if:
(a) the proposed assignee or subtenant is not of a character
consistent with the operation of a first class office building
(by way of example Landlord shall not be deemed to be
unreasonably withholding its consent to an assignment or
subleasing to any governmental agency), or
(b) the proposed assignee or subtenant is not of good character
and reputation, or
(c) the proposed assignee or subtenant does not possess adequate
financial capability to perform the Tenant obligations as and
when due or required, or
(d) the assignee or subtenant proposes to use the Premises (or
part thereof) for a purpose other than the purpose for which
the Premises may be used as stated in Section 1.1 hereof, or
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(e) the character of the business to be conducted or the proposed
use of the Premises by the proposed subtenant or assignee
shall (i) be likely to increase Landlord's Operating Expenses
beyond that which Landlord now incurs for use by Tenant; (ii)
be likely to increase the burden on elevators or other
Building systems or equipment over the burden prior to such
proposed subletting or assignment; or (iii) violate or be
likely to violate any provisions or restrictions contained
herein relating to the use or occupancy of the Premises, or
(f) there shall be existing an Event of Default (defined in
Section 7.1).
5.6.4 Tenant shall give Landlord notice of any proposed sublease or assignment,
and said notice shall specify the provisions of the proposed assignment
or subletting, including (a) the name and address of the proposed assignee
or subtenant, (b) in the case of a proposed assignment or subletting
pursuant to Section 5.6.2, such information as to the proposed assignee's
or proposed subtenant's net worth and financial capability and standing as
may reasonably be required for Landlord to make the determination referred
to in Section 5.6.3 above (provided, however, that Landlord shall hold
such information confidential having the right to release same to its
officers, accountants, attorneys and mortgage lenders on a confidential
basis), (c) all of the terms and provisions upon which the proposed
assignment or subletting is to be made, (d) in the case of a proposed
assignment or subletting pursuant to Section 5.6.2, all other information
necessary to make the determination referred to in Section 5.6.3 above and
(e) in the case of a proposed assignment or subletting pursuant to Section
5.6.1 above, such information as may be reasonably required by Landlord to
determine that such proposed assignment or subletting complies with the
requirements of said Section 5.6.1. No partial subletting shall be
permitted except as provided in Section 5.6.1.
If Landlord shall consent to the proposed assignment or subletting, as the
case may be, then, in such event, Tenant may thereafter sublease (the
whole but not part of the Premises) or assign pursuant to Tenant's notice,
as given hereunder; provided, however, that if such assignment or sublease
shall not be executed and delivered to Landlord within ninety (90) days
after the date of Landlord's consent, the consent shall be deemed null and
void and the provisions of Section 5.6.2 shall be applicable.
5.6.5 In addition, in the case of any assignment or subleasing as to which
Landlord may consent (other than an assignment or subletting permitted
under Section 5.6.1 hereof) such consent shall be upon the express and
further condition, covenant and agreement, and Tenant hereby covenants and
agrees that, in addition to the Annual Fixed Rent, Additional Rent and
other charges to be paid pursuant to this Lease, fifty percent (50%)
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of the "Assignment/Sublease Profits" (hereinafter defined), if any, shall
be paid to Landlord.
The "Assignment/Sublease Profits" shall be the excess, if any, of (a) the
"Assignment/Sublease Net Revenues" as hereinafter defined over (b) the
Annual Fixed Rent and Additional Rent and other charges provided in this
Lease. The "Assignment/Sublease Net Revenues" shall be the fixed rent,
Additional Rent and all other charges and sums payable either initially or
over the term of the sublease or assignment plus all other profits and
----
increases to be derived by Tenant as a result of such subletting or
assignment, less the reasonable costs of Tenant incurred in such
subleasing or assignment (the definition of which shall include but not
necessarily be limited to rent concessions, brokerage commissions and
alteration allowances) amortized over the term of the sublease or
assignment.
All payments of the Assignment/Sublease Profits due Landlord shall be made
within ten (10) days of receipt of same by Tenant.
5.6.6 (A) It shall be a condition of the validity of any assignment or
subletting of right under Section 5.6.1 above, or consented to under
Section 5.6.3 above, that the assignee or sublessee agrees directly with
Landlord, in form reasonably satisfactory to Landlord, to be bound by all
the obligations of the Tenant hereunder, including, without limitation,
the obligation to pay the rent and other amounts provided for under this
Lease (but in the case of a partial subletting pursuant to Section 5.6.1,
such subtenant shall agree on a pro rata basis to be so bound) including
the provisions of Sections 5.6 through 5.6.6 hereof, but such assignment
or subletting shall not relieve the Tenant named herein of any of the
obligations of the Tenant hereunder, Tenant shall remain fully and
primarily liable therefor and the liability of Tenant and such assignee
(or subtenant, as the case may be) shall be joint and several. Further,
and notwithstanding the foregoing, the provisions hereof shall not
constitute a recognition of the assignment or the assignee thereunder or
the sublease or the subtenant thereunder, as the case may be, and at
Landlord's option, upon the termination of the Lease, the assignment or
sublease shall be terminated.
(B) As Additional Rent, Tenant shall reimburse Landlord promptly for
reasonable out of pocket legal and other expenses incurred by Landlord in
connection with any request by Tenant for consent to assignment or
subletting.
(C) If this Lease be assigned, or if the Premises or any part thereof be
sublet or occupied by anyone other than Tenant, Landlord may upon prior
notice to Tenant, at any time and from time to time, collect rent and
other charges from the assignee, sublessee or occupant and apply the net
amount collected to the rent and other charges herein reserved, but no
such assignment, subletting, occupancy or collection shall be deemed a
waiver of
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this covenant, or a waiver of the provisions of Sections 5.6 through 5.6.6
hereof, or the acceptance of the assignee, sublessee or occupant as a
tenant or a release of Tenant from the further performance by Tenant of
covenants on the part of Tenant herein contained, the Tenant herein named
to remain primarily liable under this Lease.
(D) The consent by Landlord to an assignment or subletting under any of
the provisions of Sections 5.6.1 or 5.6.3 shall in no way be construed to
relieve Tenant from obtaining the express consent in writing to Landlord
to any further assignment or subletting.
5.7 To defend with counsel first approved by Landlord (which approval shall
not be unreasonably withheld or delayed), save harmless, and indemnify
Landlord from any liability for injury, loss, accident or damage to any
person or property, and from any claims, actions, proceedings and expenses
and costs in connection therewith (including without limitation reasonable
counsel fees) (i) arising from or claimed to have arisen from (a) the
omission, fault, willful act, negligence or other misconduct of Tenant or
Tenant's contractors, licensees, invitees, agents, servants, independent
contractors or employees or (b) any use made or thing done or occurring on
the Premises not due to the omission, fault, willful act, negligence or
other misconduct of Landlord, or (ii) resulting from the failure of Tenant
to perform and discharge its covenants and obligations under this Lease;
to maintain commercial general liability insurance or comprehensive
general liability insurance written on an occurrence basis with a broad
form comprehensive liability endorsement covering the Premises insuring
Landlord and Landlord's managing agent (and such persons as are in privity
of estate with Landlord and Landlord's managing agent as may be set out in
notice from time to time) as additional insureds as well as Tenant with
limits which shall, at the commencement of the Term, be at least equal to
those stated in Section 1.1 and from time to time during the Term shall be
for such higher limits, if any, as are customarily carried in Greater
Boston with respect to similar properties or which may reasonably be
required by Landlord, and workmen's compensation insurance with statutory
limits covering all of Tenant's employees working in the Premises, and to
deposit with Landlord on or before the Commencement Date and concurrent
with all renewals thereof, certificates for such insurance bearing the
endorsement that the policies will not be canceled until after thirty (30)
days written notice to Landlord. All insurance required to be maintained
by Tenant pursuant to this Lease shall be maintained with responsible
companies qualified to do business, and in good standing, in the
Commonwealth of Massachusetts and which have a rating of at least "A-" and
are within a financial size category of not less than "Class VIII" in the
most current Best's Key Rating Guide or such similar rating as may be
reasonably selected by Landlord if such Guide is no longer published.
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5.8 That all of the furnishings, fixtures, equipment, effects and property of
every kind, nature and description of Tenant and of all persons claiming
by, through or under Tenant which, during the continuance of this Lease or
any occupancy of the Premises by Tenant or anyone claiming under Tenant,
may be on the Premises or elsewhere in the Building or on the Site, shall
be at the sole risk and hazard of Tenant, and if the whole or any part
thereof shall be destroyed or damaged by fire, water or otherwise, or by
the leakage or bursting of water pipes, or other pipes, by theft or from
any other cause, no part of said loss or damage is to be charged to or be
borne by Landlord, except that Landlord shall in no event be indemnified
or held harmless or exonerated from any liability to Tenant or to any
other person, for any injury, loss, damage or liability to the extent such
indemnity, hold harmless or exoneration is prohibited by law. Further,
Tenant, at Tenant's expense, shall maintain at all times during the Term
of this Lease insurance against loss or damage covered by the so-called
"all risk" type insurance coverage with respect to Tenant's fixtures,
equipment, goods, wares and merchandise, tenant improvements made by or
paid for by Tenant, and other property of Tenant (collectively "Tenant's
Property"). Such insurance shall be in an amount at least equal to the
full replacement cost of Tenant's Property.
5.9 To permit Landlord and its agents to examine the Premises at reasonable
times and, if Landlord shall so elect, to make any repairs or replacements
Landlord may deem necessary; to remove, at Tenant's expense, any
alterations, addition, signs, curtains, blinds, shades, awnings, aerials,
flagpoles, or the like not consented to in writing; and to show the
Premises to prospective tenants during the nine (9) months preceding
expiration of the Term and to prospective purchasers and mortgagees at all
reasonable times.
5.10 Not to place a load upon the Premises exceeding an average rate of 100
pounds of live load per square foot of floor area (partitions shall be
considered as part of the live load); and not to move any safe, vault or
other heavy equipment in, about or out of the Premises except in such
manner and at such time as Landlord shall in each instance authorize;
Tenant's business machines and mechanical equipment which cause vibration
or noise that may be transmitted to the Building structure or to any other
space in the Building shall be so installed, maintained and used by Tenant
so as to eliminate such vibration or noise.
5.11 To pay promptly when due all taxes which may be imposed upon Tenant's
Property in the Premises to whomever assessed.
5.12 To comply with all applicable Legal Requirements now or hereafter in force
which shall impose a duty on Landlord or Tenant relating to or as a result
of the use or occupancy of the Premises; provided that Tenant shall not be
required to make any alterations or additions to the structure, roof,
exterior and load bearing walls, foundation, structural
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floor slabs and other structural elements of the Building unless the same
are required by such Legal Requirements as a result of or in connection
with Tenant's use or occupancy of the Premises beyond normal use of space
of this kind. Tenant shall promptly pay all fines, penalties and damages
that may arise out of or be imposed because of its failure to comply with
the provisions of this Section 5.12.
5.13 To pay as Additional Rent all reasonable costs, counsel and other fees
incurred by Landlord in connection with the successful enforcement by
Landlord of any obligations of Tenant under this Lease.
ARTICLE VI
----------
CASUALTY AND TAKING
-------------------
6.1 In case during the Lease Term the Building or the Site are damaged by fire
or other casualty and such fire or casualty damage cannot, in the ordinary
course, reasonably be expected to be repaired within one hundred fifty
(150) days from the time that repair work would commence, Landlord may, at
its election, terminate this Lease by notice given to Tenant within sixty
(60) days after the date of such fire or other casualty, specifying the
effective date of termination. The effective date of termination specified
by Landlord shall not be less than thirty (30) days nor more than
forty-five (45) days after the date of notice of such termination.
In case during the last year of the Lease Term, the Premises are damaged
by fire or other casualty and such fire or casualty damage cannot, in the
ordinary course, reasonably be expected to be repaired within one hundred
fifty (150) days (and/or as to special work or work which requires long
lead time then if such work cannot reasonably be expected to be repaired
within such additional time as is reasonable under the circumstances given
the nature of the work) from the time that repair work would commence,
Tenant may, at its election, terminate this Lease by notice given to
Landlord within sixty (60) days after the date of such fire or other
casualty, specifying the effective date of termination. The effective date
of termination specified by Tenant shall be not less than thirty (30) days
nor more than forty-five (45) days after the date of notice of such
termination.
Unless terminated pursuant to the foregoing provisions, this Lease shall
remain in full force and effect following any such damage subject,
however, to the following provisions.
If the Building or the Site or any part thereof are damaged by fire or
other casualty and this Lease is not so terminated, or Landlord or Tenant
have no right to terminate this
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Lease, and in any such case the holder of any mortgage which includes the
Building as a part of the mortgaged premises or any ground lessor of any
ground lease which includes the Site as part of the demised premises
allows the net insurance proceeds to be applied to the restoration of the
Building (and/or the Site), Landlord shall, promptly after such damage and
the determination of the net amount of insurance proceeds available, use
due diligence to restore the Premises and the Building in the event of
damage thereto (excluding Tenant's Property) into proper condition for use
and occupation and a just proportion of the Annual Fixed Rent, Tenant's
share of Operating Costs and Tenant's share of real estate taxes shall be
abated according to the nature and extent of the injury to the Premises,
until the Premises shall have been restored by Landlord substantially into
such condition except for punch list items and long lead items.
Notwithstanding anything herein contained to the contrary, Landlord shall
not be obligated to expend for such repair and restoration any amount in
excess of the net insurance proceeds.
If such restoration is not completed within one (1) year from the date of
the fire or casualty, such period to be subject, however, to extension
where the delay in completion of such work is due to causes beyond
Landlord's reasonable control (but in no event beyond eighteen (18) months
from the date of the fire or casualty), Tenant shall have the right to
terminate this Lease at any time after the expiration of such one-year
period (as extended), which right shall continue until the restoration is
substantially completed. Such termination shall be effective as of the
thirtieth (30th) day after the date of receipt by Landlord of Tenant's
notice, with the same force and effect as if such date were the date
originally established as the expiration date hereof unless, within thirty
(30) days after Landlord's receipt of Tenant's notice, such restoration is
substantially completed, in which case Tenant's notice of termination
shall be of no force and effect and this Lease and the Lease Term shall
continue in full force and effect.
6.2 Notwithstanding anything to the contrary contained in this Lease, if the
Building or the Premises shall be substantially damaged by fire or
casualty as the result of a risk not covered by the forms of casualty
insurance at the time maintained by Landlord and such fire or casualty
damage cannot, in the ordinary course, reasonably be expected to be
repaired within ninety (90) days from the time that repair work would
commence, Landlord may, at its election, terminate the Term of this Lease
by notice to the Tenant given within thirty (30) days after such loss. If
Landlord shall give such notice, then this Lease shall terminate as of the
date of such notice with the same force and effect as if such date were
the date originally established as the expiration date hereof.
6.3 If the entire Building, or such portion of the Premises as to render the
balance (if reconstructed to the maximum extent practicable in the
circumstances) unsuitable for Tenant's purposes, shall be taken by
condemnation or right of eminent domain, Landlord or Tenant shall have the
right to terminate this Lease by notice to the other of its desire to
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do so, provided that such notice is given not later than thirty (30) days
after Tenant has been deprived of possession. If either party shall give
such notice, then this Lease shall terminate as of the date of such notice
with the same force and effect as if such date were the date originally
established as the expiration date hereof.
Further, if so much of the Building shall be so taken that continued
operation of the Building would be uneconomic as a result of the taking,
Landlord shall have the right to terminate this Lease by giving notice to
Tenant of Landlord's desire to do so not later than thirty (30) days after
Tenant has been deprived of possession of the Premises (or such portion
thereof, as may be taken). If Landlord shall give such notice, then this
Lease shall terminate as of the date of such notice with the same force and
effect as if such date were the date originally established as the
expiration date hereof.
Should any part of the Premises be so taken or condemned during the Lease
Term hereof, and should this Lease not be terminated in accordance with the
foregoing provisions, and the holder of any mortgage which includes the
Premises as part of the mortgaged premises or any ground lessor of any
ground lease which includes the Site as part of the demised premises allows
the net condemnation proceeds to be applied to the restoration of the
Building, Landlord agrees, after the determination of the net amount of
condemnation proceeds available to Landlord, to use due diligence to put
what may remain of the Premises into proper condition for use and
occupation as nearly like the condition of the Premises prior to such
taking as shall be practicable (excluding Tenant's Property).
Notwithstanding the foregoing, Landlord shall not be obligated to expend
for such repair and restoration any amount in excess of the net
condemnation proceeds.
If the Premises shall be affected by any exercise of the power of eminent
domain, then the Annual Fixed Rent, Tenant's share of operating costs and
Tenant's share of real estate taxes shall be justly and equitably abated
and reduced according to the nature and extent of the loss of use thereof
suffered by Tenant; and in case of a taking which permanently reduces the
Rentable Floor Area of the Premises, a just proportion of the Annual Fixed
Rent, Tenant's share of operating costs and Tenant's share of real estate
taxes shall be abated for the remainder of the Lease Term.
6.4 Landlord shall have and hereby reserves to itself any and all rights to
receive awards made for damages to the Premises, the Building, the Complex
and the Site and the leasehold hereby created, or any one or more of them,
accruing by reason of exercise of eminent domain or by reason of anything
lawfully done in pursuance of public or other authority. Tenant hereby
grants, releases and assigns to Landlord all Tenant's rights to such
awards, and covenants to execute and deliver such further assignments and
assurances thereof as Landlord may from time to time request, and if Tenant
shall fail to execute and deliver the same within fifteen (15) days after
notice from Landlord, Tenant
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hereby covenants and agrees that Landlord shall be irrevocably designated
and appointed as its attorney-in-fact to execute and deliver in Tenant's
name and behalf all such further assignments thereof which conform with the
provisions hereof.
Nothing contained herein shall be construed to prevent Tenant from
prosecuting in any condemnation proceeding a claim for the value of any of
Tenant's usual trade fixtures installed in the Premises by Tenant at
Tenant's expense and for relocation and moving expenses, provided that such
action and any resulting award shall not affect or diminish the amount of
compensation otherwise recoverable by Landlord from the taking authority.
ARTICLE VII
-----------
DEFAULT
-------
7.1 (a) If at any time subsequent to the date of this Lease any one or more of
the following events (herein sometimes called an "Event of Default") shall
occur:
(i) Tenant shall fail to pay the fixed rent, Additional Rent or
other charges for which provision is made herein on or before
the date on which the same become due and payable, and the same
continues for five (5) days after notice from Landlord thereof,
or
(ii) Landlord having rightfully given the notice specified in
subdivision (a) above twice in any calendar year, Tenant shall
thereafter in the same calendar year fail to pay the fixed rent,
Additional Rent or other charges on or before the date on which
the same become due and payable, or,
(iii) Tenant shall neglect or fail to perform or observe any other
covenant herein contained on Tenant's part to be performed or
observed and Tenant shall fail to remedy the same within thirty
(30) days after notice to Tenant specifying such neglect or
failure, or if such failure is of such a nature that Tenant
cannot reasonably remedy the same within such thirty (30) day
period, Tenant shall fail to commence promptly to remedy the
same and to prosecute such remedy to completion with diligence
and continuity; or
(iv) Tenant's leasehold interest in the Premises shall be taken on
execution or by other process of law directed against Tenant; or
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(v) Tenant shall make an assignment for the benefit of creditors or
shall file a voluntary petition in bankruptcy or shall be
adjudicated bankrupt or insolvent, or shall file any petition or
answer seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief for
itself under any present or future Federal, State or other
statute, law or regulation for the relief of debtors, or shall
seek or consent to or acquiesce in the appointment of any
trustee, receiver or liquidator of Tenant or of all or any
substantial part of its properties, or shall admit in writing
its inability to pay its debts generally as they become due; or
(vi) A petition shall be filed against Tenant in bankruptcy or under
any other law seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution, or similar
relief under any present or future Federal, State or other
statute, law or regulation and shall remain undismissed or
unstayed for an aggregate of sixty (60) days (whether or not
consecutive), or if any debtor in possession (whether or not
Tenant) trustee, receiver or liquidator of Tenant or of all or
any substantial part of its properties or of the Premises shall
be appointed without the consent or acquiescence of Tenant and
such appointment shall remain unvacated or unstayed for an
aggregate of sixty (60) days (whether or not consecutive)--
then, and in any of said cases (notwithstanding any license of a former
breach of covenant or waiver of the benefit hereof or consent in a former
instance), Landlord lawfully may, immediately or at any time thereafter,
and without demand or further notice terminate this Lease by notice to
Tenant, specifying a date not less than ten (10) days after the giving of
such notice on which this Lease shall terminate, and this Lease shall come
to an end on the date specified therein as fully and completely as if such
date were the date herein originally fixed for the expiration of the Lease
Term (Tenant hereby waiving any rights of redemption), and Tenant will then
quit and surrender the Premises to Landlord, but Tenant shall remain liable
as hereinafter provided.
(b) If This Lease shall have been terminated as provided in this Article,
then Landlord may, without notice, re- enter the Premises, either by force,
summary proceedings, ejectment or otherwise, and remove and dispossess
Tenant and all other persons and any and all property from the same, as if
this Lease had not been made, and Tenant hereby waives the service of
notice of intention to re-enter or to institute legal proceedings to that
end.
(c) In the event that this Lease is terminated under any of the provisions
contained in Section 7.1 (a) or shall be otherwise terminated by breach of
any obligation of Tenant, Tenant covenants and agrees forthwith to pay and
be liable for, on the days originally
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fixed herein for the payment thereof, amounts equal to the several
installments of rent and other charges reserved as they would, under the
terms of this Lease, become due if this Lease had not been terminated or if
Landlord had not entered or re-entered, as aforesaid, and whether the
Premises be relet or remain vacant, in whole or in part, or relet for a
period less than the remainder of the Term, and for the whole thereof, but
in the event the Premises be relet by Landlord, Tenant shall be entitled to
a credit in the net amount of rent and other charges received by Landlord
in reletting, after deduction of all expenses incurred in reletting the
Premises (including, without limitation, remodeling costs, brokerage fees
and the like), and in collecting the rent in connection therewith, in the
following manner:
Amounts received by Landlord after reletting shall first be applied against
such Landlord's expenses, until the same are recovered, and until such
recovery, Tenant shall pay, as of each day when a payment would fall due
under this Lease, the amount which Tenant is obligated to pay under the
terms of this Lease (Tenant's liability, prior to any such reletting and
such recovery not in any way to be diminished as a result of the fact that
such reletting might be for a rent higher than the rent provided for in
this Lease); when and if such expenses have been completely recovered, the
amounts received from reletting by Landlord as have not previously been
applied shall be credited against Tenant's obligations as of each day when
a payment would fall due under this Lease, and only the net amount thereof
shall be payable by Tenant. Further, amounts received by Landlord from such
reletting for any period shall be credited only against obligations of
Tenant allocable to such period, and shall not be credited against
obligations of Tenant hereunder accruing subsequent or prior to such
period; nor shall any credit of any kind be due for any period after the
date when the term of this Lease is scheduled to expire according to its
terms.
(d)(i) At any time after such termination and whether or not Landlord shall
have collected any damages as aforesaid, Tenant shall pay to Landlord as
liquidated final damages and in lieu of all other damages beyond the date
of notice from Landlord to Tenant, at Landlord's election, such a sum as at
the time of the giving of such notice represents the mount of the excess,
if any, of the total rent and other benefits which would have accrued to
Landlord under this Lease from the date of such notice for what would be
the then unexpired Lease Term if the Lease terms had been fully complied
with by Tenant over and above the then cash rental value (in advance) of
the Premises for the balance of the Lease Term.
(d)(ii) For the purposes of this Article, if Landlord elects to require
Tenant to pay damages in accordance with the immediately preceding
paragraph, the total rent shall be computed by assuming that Tenant's share
of excess taxes, Tenant's share of excess operating costs and Tenant's
share of excess electrical costs would be, for the balance of
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the unexpired Term from the date of such notice, the amount thereof (if
any) for the immediately preceding annual period payable by Tenant to
Landlord.
(e) In case of any Event of Default, re-entry, dispossession by summary
proceedings or otherwise, Landlord may (i) re-let the Premises or any part
or parts thereof, either in the name of Landlord or otherwise, for a term
or terms which may at Landlord's option be equal to or less than or exceed
the period which would otherwise have constituted the balance of the Term
of this Lease and may grant concessions or free rent to the extent that
Landlord considers advisable or necessary to re-let the same and (ii) may
make such alterations, repairs and decorations in the Premises as Landlord
in its sole judgment considers advisable or necessary for the purpose of
reletting the Premises; and the making of such alterations, repairs and
decorations shall not operate or be construed to release Tenant from
liability hereunder as aforesaid. Landlord shall in no event be liable in
any way whatsoever for failure to re-let the Premises, or, in the event
that the Premises are re-let, for failure to collect the rent under re-
letting. Tenant hereby expressly waives any and all rights of redemption
granted by or under any present or future laws in the event of Tenant being
evicted or dispossessed, or in the event of Landlord obtaining possession
of the Premises, by reason of the violation by Tenant of any of the
covenants and conditions of this Lease.
(f) The specified remedies to which Landlord may resort hereunder are not
intended to be exclusive of any remedies or means of redress to which
Landlord may at any time be entitled lawfully, and Landlord may invoke any
remedy (including the remedy of specific performance) allowed at law or in
equity as if specific remedies were not herein provided for. Further,
nothing contained in this Lease shall limit or prejudice the right of
Landlord to prove 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 proved, whether
or not the amount be greater, equal to, or less than the amount of the loss
or damages referred to above.
7.2 Landlord shall in no event be in default in the performance of any of
Landlord's obligations hereunder unless and until Landlord shall have
failed to perform such obligations within thirty (30) days, or such
additional time as is reasonably required to correct any such default,
after notice by Tenant to Landlord properly specifying wherein Landlord has
failed to perform any such obligation.
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ARTICLE VIII
------------
8.1 Tenant covenants and agrees that Tenant will not do or permit anything to
be done in or upon the Premises, or bring in anything or keep anything
therein, which shall invalidate or increase the rate of insurance on the
Premises or on the Building above the standard rate applicable to premises
being occupied for the use to which Tenant has agreed to devote the
Premises; and Tenant further agrees that, in the event that Tenant shall do
any of the foregoing, Tenant will promptly pay to Landlord, on demand, any
such increase resulting therefrom, which shall be due and payable as
Additional Rent thereunder.
8.2 Failure on the part of Landlord or Tenant to complain of any action or non-
action on the part of the other, no matter how long the same may continue,
shall never be a waiver by Tenant or Landlord, respectively, of any of its
rights hereunder. Further, no waiver at any time of any of the provisions
hereof by Landlord or Tenant shall be construed as a waiver of any of the
other provisions hereof, and a waiver at any time of any of the provisions
hereof shall not be construed as a waiver at any subsequent time of the
same provisions. The consent or approval of Landlord or Tenant to or of any
action by the other requiring such consent or approval shall not be
construed to waive or render unnecessary Landlord's or Tenant's consent or
approval to or of subsequent similar act by the other.
No payment by Tenant, or acceptance by Landlord, of a lesser amount than
shall be due from Tenant to Landlord shall be treated otherwise than as a
payment on account. The acceptance by Landlord of a check for a lesser
amount with an endorsement or statement thereon, or upon any letter
accompanying such check, that such lesser amount is payment in full, shall
be given no effect, and Landlord may accept such check without prejudice to
any other rights or remedies which Landlord may have against Tenant.
8.3 The specific remedies to which Landlord may resort under the terms of this
Lease are cumulative and are not intended to be exclusive of any other
remedies or means of redress to which such party may be lawfully entitled
in case of any breach or threatened breach by Tenant of any provisions of
this Lease. In addition to the other remedies provided in this Lease,
Landlord shall be entitled to the restraint by injunction of the violation
or attempted or threatened violation of any of the covenants, conditions or
provisions of this Lease or to a decree compelling specific performance of
any such covenants, conditions or provisions.
8.4 Tenant, subject to the terms and provisions of this Lease on payment of the
rent and observing, keeping and performing all of the terms and provisions
of this Lease on Tenant's part to be observed, kept and performed, shall
lawfully, peaceably and quietly have, hold, occupy and enjoy the Premises
during the Term, without hindrance or ejection by any persons lawfully
claiming under Landlord to have title to the Premises superior to
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Tenant; the foregoing covenant of quiet enjoyment is in lieu of any other
covenant, express or implied; and it is understood and agreed that this
covenant and any and all other covenants of Landlord contained in this
Lease shall be binding upon Landlord and Landlord's successors only with
respect to breaches occurring during Landlord's or Landlord's successors'
respective ownership of Landlord's interest hereunder, as the case may be.
Further, Tenant specifically agrees to look solely to Landlord's then
equity interest in the Building at the time owned, or in which Landlord
holds an interest as ground lessee, for recovery of any judgment from
Landlord; it being specifically agreed that neither Landlord (original or
successor), nor any partner in or of Landlord, nor any beneficiary of any
Trust of which any person holding Landlord's interest is Trustee, shall
ever be personally liable for any such judgment, or for the payment of any
monetary obligation to Tenant. The provision contained in the foregoing
sentence is not intended to, and shall not, limit any right that Tenant
might otherwise have to obtain injunctive relief against Landlord or
Landlord's successors in interest, or any action not involving the personal
liability, of Landlord (original or successor), any partner in or of
Landlord, any successor Trustee to the persons named herein as Landlord, or
any beneficiary, of any Trust of which any person holding Landlord's
interest is Trustee, to respond in monetary damages from Landlord's assets
other than Landlord's equity interest aforesaid in the Building. In no
event shall Landlord ever be liable to Tenant for any indirect or
consequential damages suffered by Tenant from whatever cause.
8.5 After receiving notice from any person, firm or other entity that it holds
a mortgage which includes the Premises as part of the mortgaged premises,
or that it is the ground lessor under a lease with Landlord, as ground
lessee, which includes the Premises as a part of the demised premises, no
notice from Tenant to Landlord shall be effective unless and until a copy
of the same is given to such holder or ground lessor, and the curing of any
of Landlord's defaults by such holder or ground lessor within a reasonable
time thereafter (including a reasonable time to obtain possession of the
premises if the mortgagee or ground lessor elects to do so) shall be
treated as performance by Landlord. For the purposes of this Section 8.5 or
Section 8.15, the term "mortgage" includes a mortgage on a leasehold
interest of Landlord (but not one on Tenant's leasehold interest).
8.6 With reference to any assignment by Landlord or Landlord's interest in this
Lease, or the rents payable hereunder, conditional in nature or otherwise,
which assignment is made to the holder of a mortgage or ground lease on
property which includes the Premises, Tenant agrees:
(a) That the execution thereof by Landlord, and the acceptance
thereof by the holder of such mortgage or the ground lessor,
shall never be treated as an
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assumption by such holder or ground lessor of any of the
obligations of Landlord hereunder, unless such holder, or ground
lessor, shall, by notice sent to Tenant, specifically otherwise
elect; and
(b) That, except as aforesaid, such holder or ground lessor shall be
treated as having assumed Landlord's obligations hereunder only
upon foreclosure of such holder's mortgage and the taking of
possession of the Premises, or, in the case of a ground lessor,
the assumption of Landlord's position hereunder by such ground
lessor.
In no event shall the acquisition of title to the Building and
the land on which the same is located by a purchaser which,
simultaneously therewith, leases the entire Building or such land
back to the seller thereof be treated as an assumption by such
purchaser-lessor, by operation of law or otherwise, of Landlord's
obligations hereunder, but Tenant shall look solely to such
seller-lessee, and its successors from time to time in title, for
performance of Landlord's obligations hereunder subject to the
provisions of Section 8.4 hereof. In any such event, this Lease
shall be subject and subordinate to the lease to such purchaser
provided that such purchaser agrees to recognize the right of
Tenant to use and occupy the Premises upon the payment of rent
and other charges payable by Tenant under this Lease and the
performance by Tenant of Tenant's obligations under this Lease
and provided that Tenant agrees to attorn to such purchaser. For
all purposes, such seller-lessee, and its successors in title,
shall be the landlord hereunder unless and until Landlord's
position shall have been assumed by such purchaser-lessor.
8.7 No act or thing done by Landlord during the Lease Term shall be deemed an
acceptance of a surrender of the Premises, and no agreement to accept such
surrender shall be valid, unless in writing signed by Landlord. No employee
of Landlord or of Landlord's agents shall have any power to accept the keys
of the Premises prior to the termination of this Lease. The delivery of
keys to any employee of Landlord or of Landlord's agents shall not operate
as a termination of the Lease or a surrender of the Premises.
8.8 (A) Tenant warrants and represents that Tenant has not dealt with any
broker, finder or other agent in connection with the consummation of this
Lease other than the Recognized Brokers, if any, designated in Section 1.1
hereof; and in the event any claim is made against the Landlord relative to
dealings by Tenant with brokers, finders or other agents other than the
Recognized Brokers, if any, designated in Section 1.1 hereof, Tenant shall
defend the claim against Landlord with counsel of Tenant's selection first
approved by Landlord (which approval will not be unreasonably withheld) and
save
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harmless and indemnify Landlord on account of loss, cost or damage which
may arise by reason of such claim.
(B) Landlord warrants and represents that Landlord has not dealt with any
broker, finder or other agent in connection with the consummation of this
Lease other than the Recognized Brokers, if any, designated in Section 1.1
hereof; and in the event any claim is made against the Tenant relative to
dealings by Landlord with brokers, finders or other agents other than the
Recognized Brokers, if any, designated in Section 1.1 hereof, Landlord
shall defend the claim against Tenant with counsel of Landlord's selection
and save harmless and indemnify Tenant on account of loss, cost or damage
which may arise by reason of such claim. Landlord agrees that it shall be
solely responsible for the payment of brokerage commissions to the
Recognized Brokers, if any, designated in Section 1.1 hereof.
8.9 If any term or provision of this Lease, or the application thereof to any
person or circumstance shall, to any extent, be invalid or unenforceable,
the remainder of this Lease, or the application of such term or provision
to persons or circumstances other than those as to which it is held invalid
or unenforceable, shall not be affected thereby, and each term and
provision of this Lease shall be valid and be enforced to the fullest
extent permitted by law.
8.10 The obligations of this Lease shall run with the land, and except as herein
otherwise provided, the terms hereof shall be binding upon and shall inure
to the benefit of the successors and assigns, respectively, of Landlord and
Tenant and, if Tenant shall be an individual, upon and to his heirs,
executors, administrators, successors and assigns. Each term and each
provision of this Lease to be performed by Tenant shall be construed to be
both a covenant and a condition. The reference contained to successors and
assigns of Tenant is not intended to constitute a consent to subletting or
assignment by Tenant.
8.11 Tenant agrees not to record the within Lease, but each party hereto agrees,
on the request of the other, to execute a so-called Notice of Lease or
short form lease in form recordable and complying with applicable law and
reasonably satisfactory to both Landlord's and Tenant's attorneys. In no
event shall such document set forth rent or other charges payable by Tenant
under this Lease; and any such document shall expressly state that it is
executed pursuant to the provisions contained in this Lease, and is not
intended to vary the terms and conditions of this Lease.
8.12 Whenever, by the terms of this Lease, notice shall or may be given either
to Landlord or to Tenant, such notice shall be in writing and shall be sent
by registered or certified mail postage prepaid:
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If intended for Landlord, addressed to Landlord at the address set
forth on the first page of this Lease (or to such other address or
addresses as may from time to time hereafter be designated by Landlord
by like notice) with a copy to Landlord, Attention: General Counsel.
If intended for Tenant, addressed to Tenant at the address set forth
on the second page of this Lease except that from and after the
Commencement Date the address of Tenant shall be the Premises (or to
such other address or addresses as may from time to time hereafter be
designated by Tenant by like notice).
Except as otherwise provided herein, all such notices shall be effective
when received; provided, that (i) if receipt is refused, notice shall be
effective upon the first occasion that such receipt is refused or (ii) if
the notice is unable to be delivered due to a change of address of which no
notice was given, notice shall be effective upon the date such delivery was
attempted.
Where provision is made for the attention of an individual or department,
the notice shall be effective only if the wrapper in which such notice is
sent is addressed to the attention of such individual or department.
Time is of the essence with respect to any and all notices and periods for
giving notice or taking any action thereto under this Lease.
8.13 Employees or agents of Landlord have no authority to make or agree to make
a lease or any other agreement or undertaking in connection herewith. The
submission of this document for examination and negotiation does not
constitute an offer to lease, or a reservation of, or option for, the
Premises, and this document shall become effective and binding only upon
the execution and delivery hereof by both Landlord and Tenant. All
negotiations, considerations, representations and understandings between
Landlord and Tenant are incorporated herein and may be modified or altered
only by written agreement between Landlord and Tenant, and no act or
omission of any employee or agent of Landlord shall alter, change or modify
any of the provisions hereof.
8.14 The titles of the Articles throughout this Lease are for convenience and
reference only, and the words contained therein shall in no way be held to
explain, modify, amplify or aid in the interpretation, construction or
meaning of the provisions of this Lease.
8.15 This Lease shall be subject and subordinate to any mortgage now or
hereafter on the Site or the Building, or both, and to each advance made or
hereafter to be made under any mortgage, and to all renewals,
modifications, consolidations, replacements and extensions thereof and all
substitutions therefor provided that the holder of such mortgage agrees to
-40-
recognize the rights of Tenant under this Lease (including the right to use
and occupy the Premises) upon the payment of rent and other charges payable
by Tenant under this Lease and the performance by Tenant of Tenant's
obligations hereunder in which event Tenant shall agree to attorn to such
holder and its successors as landlord. In confirmation of such
subordination and recognition, Tenant shall execute and deliver promptly
such instruments of subordination and recognition as such mortgagee may
reasonably request. Tenant hereby appoints such mortgagee (from time to
time) as Tenant's attorney-in-fact to execute such subordination upon
default of Tenant in complying with such mortgagee's (from time to time)
request. In the event that any mortgagee or its respective successor in
title shall succeed to the interest of Landlord, then, this Lease shall
nevertheless continue in full force and effect and Tenant shall and does
hereby agree to attorn to such mortgagee or successor and to recognize such
mortgagee or successor as its landlord. If any holder of a mortgage which
includes the Premises, executed and recorded prior to the date of this
Lease, shall so elect, this Lease and the rights of Tenant hereunder, shall
be superior in right to the rights of such holder, with the same force and
effect as if this Lease had been executed, delivered and recorded, or a
statutory Notice hereof recorded, prior to the execution, delivery, and
recording of any such mortgage. The election of any such holder shall
become effective upon either notice from such holder to Tenant in the same
fashion as notices from Landlord to Tenant are to be given hereunder or by
the recording in the appropriate registry or recorder's office of an
instrument in which such holder subordinates its rights under such mortgage
to this Lease.
If in connection with obtaining financing for the Building or Complex, a
bank, insurance company, pension trust or other institutional lender shall
request reasonable modifications in this Lease as a condition to such
financing, Tenant will not unreasonably withhold, delay or condition its
consent thereto, provided that such modifications do not increase the
monetary obligations of Tenant hereunder or materially adversely affect the
leasehold interest hereby created.
8.16 Recognizing that Landlord may find it necessary to establish to third
parties, such as accountants, banks, potential or existing mortgagees,
potential purchasers or the like, the then current status of performance
hereunder, Tenant, on the request of Landlord made from time to time, will
promptly furnish to Landlord, or any existing or potential holder of any
mortgage encumbering the Premises, the Building, the Site and/or the
Complex or any potential purchaser of the Premises, the Building, the Site
and/or the Complex, (each an "Interested Party"), a statement of the status
of any matter pertaining to this Lease, including, without limitation,
acknowledgments that (or the extent to which) each party is in compliance
with its obligations under the terms of this Lease. In addition, Tenant
shall deliver to Landlord, or any Interested Party designated by Landlord,
financial statements of Tenant and any guarantor of Tenant's obligations
under this Lease, as reasonably requested by Landlord, including, but not
limited to financial statements for the past three
-41-
(3) years. Any such status statement or financial statement delivered by
Tenant pursuant to this Section 8.16 may be relied upon by any Interested
Party.
8.17 If Tenant shall at any time default in the performance of any obligation
under this Lease, Landlord shall have the right, but shall not be
obligated, to enter upon the Premises and to perform such obligation
notwithstanding the fact that no specific provision for such substituted
performance by Landlord is made in this Lease with respect to such default.
In performing such obligation, Landlord may make any payment of money or
perform any other act. All sums so paid by Landlord (together with interest
at the rate of one and one-half percentage points over the then prevailing
prime rate in Boston as set by The First National Bank of Boston) and all
costs and expenses in connection with the performance of any such act by
Landlord, shall be deemed to be Additional Rent under this Lease and shall
be payable to Landlord immediately on demand. Landlord may exercise the
foregoing rights without waiving any other of its rights or releasing
Tenant from any of its obligations under this Lease.
8.18 Any holding over by Tenant after the expiration of the term of this Lease
shall be treated as a tenancy at sufferance at double the rents and other
charges herein (prorated on a daily basis) and shall otherwise be on the
terms and conditions set forth in this Lease as far as applicable;
provided, however, that neither the foregoing nor any other term or
provision of this Lease shall be deemed to permit Tenant to retain
possession of the Premises or hold over in the Premises after the
expiration or earlier termination of the Lease Term.
8.19 Any insurance carried by either party with respect to the Premises or
property therein or occurrences thereon shall, if it can be so written
without additional premium or with an additional premium which the other
party agrees to pay, include a clause or endorsement denying to the
insurer rights of subrogation against the other party to the extent rights
have been waived by the insured prior to occurrence of injury or loss. Each
party, notwithstanding any provisions of this Lease to the contrary, hereby
waives any rights of recovery against the other for injury or loss due to
hazards covered by such insurance to the extent of the indemnification
received thereunder.
8.20 (A) Tenant agrees that the security deposit specified in Section 1.1 shall
be paid to Landlord upon execution and delivery of this Lease, and that
Landlord shall hold the same throughout the term of this Lease (including
the Extended Term) subject to returning such deposit to Tenant as provided
in this Section 8.20, as security for the performance by Tenant of all
obligations on the part of Tenant to be kept and performed. The security
deposit shall be in the form of an unconditional irrevocable letter of
credit (the "Letter of Credit") drawn on a bank satisfactory to Landlord
and otherwise upon terms satisfactory to Landlord, which Letter of Credit
shall permit one or more draws thereunder to be made by Landlord. The
Letter of Credit shall be for a term of two (2)
-42-
years (or for one (1) year if the issuer thereof regularly and customarily
only issues letters of credit for a maximum term of one (1) year) and shall
in either case be renewed by Tenant each year thereafter and each renewal
shall be delivered to and received by Landlord not later than thirty (30)
days before the expiration of the then current Letter of Credit (herein
called a "Renewal Presentation Date"). In the event of a failure to so
deliver such renewal Letter of Credit on or before the applicable Renewal
Presentation Date, Landlord shall be entitled to present the then existing
Letter of Credit for payment and to receive the proceeds thereof, which
proceeds shall be held by Landlord as Tenant's security deposit, subject to
the terms of this Section 8.20. Landlord shall have the right from time to
time without prejudice to any other remedy Landlord may have on account
thereof, to draw upon such Letter of Credit and apply the proceeds thereof
to Landlord's damages arising from any default on the part of Tenant
resulting from Tenant's failure to pay Annual Fixed Rent or Additional Rent
or from Tenant's failure to leave the Premises in the condition required in
the Lease upon the expiration or earlier termination of this Lease. If
Landlord so applies all or any portion of such deposit, Tenant shall within
seven (7) days after notice from Landlord deliver cash to Landlord in an
amount sufficient to restore such deposit to the full amount being held
immediately prior to such draw and/or application by Landlord. If Landlord
conveys Landlord's interest under this Lease, at Landlord's direction, the
deposit, or any part thereof not previously applied, may be turned over by
Landlord to Landlord's grantee, and, if so turned over, Tenant agrees to
look solely to such grantee for proper application of the deposit in
accordance with the terms of this Section 8.20, and the return thereof in
accordance herewith.
Neither the holder of any mortgage nor the lessor in any ground lease on
property which includes the Premises shall ever be responsible to Tenant
for the return or application of any such deposit, whether or not it
succeeds to the position of Landlord hereunder, unless such deposit shall
have been received in hand by such holder or ground lessor.
(B) (i) Subsequent to November 1, 1997 Landlord shall exchange the Letter
of Credit for a Letter of Credit delivered by Tenant which reduces the
amount secured by the Letter of Credit by Twenty Eight Thousand
Dollars ($28,000.00) so that the remaining amount of the Letter of
Credit shall be One Hundred Twenty Two Thousand Dollars ($122,000.00)
provided that as of such date (x) no Event of Default is then existing
or has ever existed, and (y) Landlord has not applied such deposit or
any portion thereof to Landlord's damages arising from any default on
the part of Tenant, whether or not Tenant has restored the amount so
applied by Landlord.
(ii) Subsequent to November 1, 1998 Landlord shall exchange the Letter
of Credit for a Letter of Credit delivered by Tenant which reduces the
amount secured by the Letter of Credit by Twenty Eight Thousand
Dollars ($28,000.00) so that the remaining amount of the Letter of
Credit shall be Ninety Four Thousand Dollars ($94,000.00) provided
that as of such date (x) no Event of
-43-
Default is then existing or has ever existed, (y) Landlord has not
applied such deposit or any portion thereof to Landlord's damages
arising from any default on the part of Tenant, whether or not Tenant
has restored the amount so applied by Landlord, and (z) Landlord has
previously returned to Tenant a portion of such deposit as provided in
Section (i) above.
(iii) Subsequent to November 1, 1999 Landlord shall exchange the
Letter of Credit for a Letter of Credit delivered by Tenant which
reduces the amount secured by the Letter of Credit by Twenty Eight
Thousand Dollars ($28,000.00) so that the remaining amount of the
Letter of Credit shall be Sixty Six Thousand Dollars ($66,000.00)
provided that as of such date (x) no Event of Default is then existing
or has ever existed, (y) Landlord has not applied such deposit or any
portion thereof to Landlord's damages arising from any default on the
part of Tenant, whether or not Tenant has restored the amount so
applied by Landlord, and (z) Landlord has previously returned to
Tenant portions of such deposit as provided in Sections (i) and (ii)
above.
(iv) Subsequent to November 1, 2000 Landlord shall exchange the Letter
of Credit for cash in the amount of Thirty Eight Thousand Dollars
($38,000.00) provided that as of such date (x) no Event of Default is
then existing or has ever existed, (y) Landlord has not applied such
deposit or any portion thereof to Landlord's damages arising from any
default on the part of Tenant, whether or not Tenant has restored the
amount so applied by Landlord and (z) Landlord has previously returned
to Tenant portions of such deposit as provided in Sections (i), (ii)
and (iii) above.
(v) The remaining Thirty Eight Thousand Dollars ($38,000.00) plus all
interest earned thereon, (the "Remaining Deposit") shall continue to
be held by Landlord throughout the term of this Lease (including any
Extended Term) as security for performance by Tenant of all
obligations on the part of Tenant to be kept and performed as provided
in this Section 8.20.
(C) Tenant not then being in default and having performed all of its
obligations under this Lease, including, but not limited to, the payment of
all Annual Fixed Rent, Additional Rent and all other sums due under this
Lease, Landlord shall return the Deposit then being held by Landlord
(including all interest earned thereon), or so much thereof as shall not
have been applied or returned in accordance with the terms of this Section
8.20 to Tenant on the expiration or earlier termination of the term of this
Lease (including any termination by tenant pursuant to Section 3.2 or
Section 8.22 of this Lease) and surrender possession of the Premises by
Tenant to Landlord at such time. In no event shall the terms of this
Section 8.20 ever require Landlord to pay to Tenant (or return the Letter
of Credit to Tenant) any amount in excess of the deposit which Landlord is
then entitled to hold pursuant to this Section 8.20.
-44-
8.21 If Landlord shall not have received any payment or installment of rent on
or before the date (the "Due Date") on which the same first becomes payable
under this Lease, the amount of such payment or installment shall bear
interest from the Due Date through and including the date such payment or
installment is received by Landlord, at a rate equal to the lesser of (i)
the rate announced by The First National Bank of Boston from time to time
as its prime or base rate (or if such rate is no longer available, a
comparable rate reasonably selected by Landlord), plus two percent (2%), or
(ii) the maximum applicable legal rate, if any. Such interest shall be
deemed Additional Rent and shall be paid by Tenant to Landlord upon demand.
8.22 (A) Provided and on the condition precedent that at any time on or prior to
the "Termination Date" (hereinafter set forth), there shall not have ever
occurred an "Event of Default" (defined in Section 7.1 (a) hereof) and
subject to the terms and conditions of Section 8.22(B) hereof, by written
notice ("Tenant's Termination Notice") given by Tenant to Landlord at any
time on or before that date which is one hundred eighty (180) days prior to
the third (3rd) annual anniversary of the Commencement Date but not later
than such date (time being of the essence) Tenant may elect to cancel and
terminate this Lease effective on the day immediately preceding the third
(3rd) annual anniversary of the Commencement Date (the "Early Termination
Date") but not before or after said date: provided, however, that as a
condition precedent to the effectiveness of such termination, Tenant shall
pay to Landlord, the sum of $102,729.50 (the "Termination Payment"). Tenant
shall pay the entire Termination Payment to Landlord in good funds not
later than thirty (30) days prior to the Early Termination Date (the
"Termination Payment Date), time being of the essence. Tenant acknowledges
and agrees that the Termination Payment constitutes consideration and
compensation to Landlord for the right of Tenant to terminate this Lease
prior to the scheduled expiration of the Lease Term and does not constitute
a penalty. If Tenant shall not give to Landlord Tenant's Termination Notice
as provided in this Section 8.22(A) (time being of the essence) or if
Tenant shall timely give to Landlord Tenant's Termination Notice but shall
fail to pay the Termination Payment in full not later than the Termination
Payment Date (time being of the essence), or if any time prior to the
Termination Date there shall have occurred an Event of Default, then in any
such case the provisions of this Section 8.22(A) shall be deemed null and
void.
(B) Notwithstanding any such termination provided in Section 8.22(A)
hereinabove and as a further condition precedent thereto, (i) Tenant shall
pay to Landlord on a timely basis all Annual Fixed Rent, Tenant's share of
operating costs, taxes and electricity, and all other Additional Rent and
other amounts due from Tenant (including, but not limited to, all past due
amounts thereof) through the Early Termination Date (it being acknowledged
and agreed that the Termination Payment is in addition to such amounts and
no credit shall be given towards the payment of any such amounts on account
of the payment of the applicable Termination Payment) and (ii) on the Early
Termination Date Tenant shall quit and vacate the Premises and surrender
the same in the condition required by the applicable provisions of this
Lease. In the event that Tenant's share of
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such operating costs, taxes and electricity, and such other Additional Rent
and other amounts due through the Early Termination Date is (or are) not
finally determined as of the giving of Termination Notice, Tenant shall
make payment on account as reasonable estimated by Landlord if so requested
by Landlord and in any event Tenant shall make final payment of all amounts
due through the Early Termination Date within thirty (30) days after final
billing therefor by Landlord.
(C) The obligations of Tenant set forth in this Section 8.20 shall survive
the termination of this Lease hereunder.
8.23 This Lease shall be governed exclusively by the provisions hereof and by
the law of the Commonwealth of Massachusetts, as the same may from time to
time exist.
EXECUTED as a sealed instrument in two or more counterparts each of which
shall be deemed to be an original.
LANDLORD:
WITNESS: By /s/ Xxxxxx X. Xxxxx
-------------------------------------
/s/ [SIGNATURE ILLEGIBLE]^^ XXXXXX X. XXXXX, AS TRUSTEE OF
--------------------------- 00 XXXXXXXX XXXXXX TRUST FOR HIMSELF
AND CO-TRUSTEE BUT NOT INDIVIDUALLY
TENANT:
XXXXXXXX.xxx, INC.
By /s/ Valdur Koha
-------------------------------------
Name Valdur Koha
-----------------------------------
Title PRESIDENT (OR VICE PRESIDENT)
HERETO DULY AUTHORIZED
[SIGNATURE ILLEGIBLE]^^
ATTEST:
/s/ X.X. Xxxxxxxxxxx
-------------------------------
Name X.X. XXXXXXXXXXX By
-------------------------- -------------------------------------
Title Secretary Name: Xxxxx Xxxxxx
------------------------- ----------------------------------
(Assistant Secretary) Title Chairman
----------------------------------
(OR ASSISTANT TREASURER)
----------------------------------
HERETO DULY AUTHORIZED
(CORPORATE SEAL)
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EXHIBIT A
---------
That certain parcel of land situate in Lexington in the County of Middlesex
and Commonwealth of Massachusetts, described as follows:
SOUTHEASTERLY by Xxxxxxxx Avenue, two hundred thirty-seven and
47/100 feet;
SOUTHEASTERLY by a curving line forming the junction of said
Xxxxxxxx Avenue and Xxxxxxxx Place, as shown on plan
hereinafter mentioned, thirty-nine and 27/100 feet;
SOUTHWESTERLY five hundred thirty-two and 23/100 feet, and
SOUTHWESTERLY, SOUTHERLY and SOUTHEASTERLY one hundred ninety and
25/100 feet, by said Xxxxxxxx Place;
SOUTHERLY by lot 9 on said plan, three hundred seventy-four
and 57/100 feet;
SOUTHWESTERLY three hundred sixty-seven and 65/100 feet;
NORTHWESTERLY thirty-one and 12/100 feet, and
NORTHWESTERLY again, eight hundred ninety and 63/100 feet, by land
now or formerly of The United States of America;
NORTHEASTERLY by said United States of America land and by land
now or formerly of Xxxx X. X'Xxxxxx et al, nine
hundred thirty-three and 87/100 feet.
Said parcel is shown as lot 10 on said plan, (Plan No.31330/D/).
All of said boundaries are determined by the Court to be located as shown
on a subdivision plan, as approved by the Court, filed in the Land Registration
Office, a copy of which is filed in the Registry of Deeds for the South Registry
District of Middlesex County in Registration Book 835, Page 146, with
Certificate 141096.
The above described land is subject to and has the benefit of the ditches
as approximately shown on said plan at date of original decree, (May 17, 1963).
So much of the above described land as is included within the area marked
"Tennessee Gas Transmission Company Easement 30' wide" is subject to the
easements set forth in a taking by the Northeastern Gas Transmission Company,
dated July 13, 1951 and duly recorded in Book 7772, Page 162.
The above described land is subject to an Avigation Easement set forth in a
Declaration of Taking by the United States of America dated February 12, 1954
recorded with the Middlesex South District Registry of Deeds in Book 8219, Page
421 and more particularly shown as "Avigation Easement A-130E-1" on Plan No.
31330-D (referred to above).
The above described land is subject to an Order by the Town of Lexington
for construction of water main in Xxxxxxxx Avenue, Document No. 461902 as
affected by Certificate for Dissolving Betterments filed as Document No. 499500.
The above described land is subject to a Grant of Easement from Xxxxxx X.
Xxxxxxxx et al Trs. to the Town of Lexington to construct and maintain sewer in
Xxxxxxxx Xxxxx, Xxxxxxxx Xx. 000000.
The above described land is subject to a grant of Easement over 20 feet
wide drain easement (i) for the benefit of lot 9 in common with others entitled
thereto, set forth in Document 511666 and (ii) set forth in Document No. 479843
for the benefit of lot 7 shown on plan recorded with said Document No. 479843.
The above described land is subject to a Taking of easement by the Town of
Lexington in Xxxxxxxx Xxxxx, Xxxxxxxx Xx. 000000.
The above described land is subject to and has the benefit of a Grant of
Easement and Reservation from Xxxxxx X. Xxxxxxxx et al Trs. to the Town of
Lexington for conservation purposes, Document No. 616453.
The above described land is subject to and has the benefit of the
following:
A. Order of Conditions issued by the Town of Lexington Conservation
Commission filed as Document No. 616456 as extended by Extension
Permits issued by said Conservation Commission filed as Document
Nos. 627154, 635069, 655552 and 669180.
B. Decision of the Town of Lexington Board of Appeals filed as
Document No. 616457.
-2-
C. Decision of the Town of Lexington Board of Appeals filed as
Document No. 616458.
D. Decision of the Town of Lexington Board of Appeals filed as
Document No. 616459.
E. Decision of the Town of Lexington Board of Appeals filed as
Document No. 634489.
F. Decision of the Town of Lexington Board of Appeals filed as
Document No. 646344.
G. Decision of the Town of Lexington Board of Appeals filed as
Document No. 646345.
H. Decision of the Town of Lexington Board of Appeals filed as
Document No. 646346.
The above described land is subject to an Easement granted to Boston Edison
Company filed as Document No. 672152.
The above described land is subject to such other easements, agreements and
matters of record, if any, insofar as in force and applicable.
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EXHIBIT A-1
-----------
Site Plan
[SITE PLAN APPEARS HERE]
EXHIBIT C
LANDLORD SERVICES
I. CLEANING:
--------
Cleaning and janitor services as provided below:
A. OFFICE AREAS:
------------
DAILY: (Monday through Friday, inclusive, holidays excepted).
-----
1. Empty all waste receptacles and ashtrays and remove waste
material from the Premises; wash receptacles as necessary.
2. Sweep and dust mop all uncarpeted areas using a dust-treated mop.
3. Vacuum all rugs and carpeted areas.
4. Hand dust and wipe clean with treated cloths all horizontal
surfaces, including furniture, office equipment, window xxxxx,
door ledges, chair rails, and convector tops, within normal
reach.
5. Wash clean all water fountains and sanitize.
6. Move and dust under all desk equipment and telephones and replace
same (but not computer terminals, specialized equipment or other
materials).
7. Wipe clean all chrome and other bright work.
8. Hand dust grill work within normal reach.
9. Main doors to premises shall be locked and lights shut off upon
completion of cleaning.
WEEKLY:
------
1. Dust coat racks and the like.
2. Spot clean entrance doors, light switches and doorways.
QUARTERLY:
---------
1. Render high dusting not reached in daily cleaning to include:
a) dusting all pictures, frames, charts, graphs and similar
wall hangings.
b) dusting of all vertical surfaces, such as walls, partitions,
doors and door frames, etc.
c) dusting all pipes, ducts and moldings.
d) dusting of all vertical blinds.
e) dust all ventilating, air conditioning, louvers and grills.
2. Spray buff all resilient floors.
B. LAVATORIES:
----------
DAILY: (Monday through Friday, inclusive, holidays excepted).
-----
1. Sweep and damp mop.
2. Clean all mirrors, powder shelves, dispensers and receptacles,
bright work, flushometers, piping and toilet seat hinges.
3. Wash both sides of all toilet seats.
4. Wash all basins, bowls and urinals.
5. Dust and clean all powder room fixtures.
6. Empty and clean paper towel and sanitary disposal receptacles.
7. Remove waste paper and refuse.
8. Refill tissue holders, soap dispensers, towel dispensers,
sanitary dispensers; materials to be furnished by Landlord.
2
MONTHLY:
-------
1. Machine scrub lavatory floors.
2. Wash all partitions and tile walls in lavatories.
3. Dust all lighting fixtures and grills in lavatories.
C. MAIN LOBBIES, ELEVATORS, STAIRWELLS AND COMMON CORRIDORS:
--------------------------------------------------------
Daily: (Monday through Friday, inclusive, holidays excepted).
-----
1. Sweep and damp mop all floors, empty and clean waste receptacles,
dispose of waste.
2. Clean elevators, wash or vacuum floors, wipe down walls and
doors.
3. Spot clean any metal work inside lobbies.
4. Spot clean any metal work surrounding building entrance doors.
5. Sweep all stairwells and dust handrails.
MONTHLY:
-------
1. All resilient tile floors in public areas to be spray buffed.
D. WINDOW CLEANING:
---------------
All exterior windows shall be washed on the inside and outside
surfaces no less than three (3) times per year.
II. HVAC:
----
A. Heating, ventilating and air conditioning equipment will be provided
with sufficient capacity to accommodate a maximum population density
of one (1) person per one hundred fifty (150) square feet of useable
floor area served, and a combined lighting and standard electrical
load of 3.0 xxxxx per square foot of useable floor area. In the event
Tenant introduces into the Premises personnel or equipment which
overloads the system's ability to adequately
3
perform its proper functions, Landlord shall so notify Tenant in
writing and supplementary system(s) may be required and installed by
Landlord at Tenant's expense, if within fifteen (15) days Tenant has
not modified its use so as not to cause such overload.
Operating criteria of the basic system are in accordance with the
Massachusetts Energy Code and shall not be less than the following:
i) Cooling season indoor conditions of not in excess of 78 degrees
Fahrenheit when outdoor conditions are 91 degrees Fahrenheit
drybulb and 73 degrees Fahrenheit wetbulb.
ii) Heating season minimum room temperature of 72 degrees Fahrenheit
when outdoor conditions are 6 degrees Fahrenheit drybulb.
B. Landlord shall provide heating, ventilating and air conditioning as
normal seasonal charges may require during Normal Building Operating
Hours (8:00 a.m. to 6:00 p.m., Monday through Friday, and 8:00 a.m. to
1:00 p.m. on Saturdays, legal holidays in all cases excepted).
If Tenant shall require air conditioning (during the air conditioning
season) or heating or ventilating during any season outside Normal
Building Operating Hours, Landlord shall use landlord's best efforts
to furnish such services for the area or areas specified by written
request of Tenant delivered to the Building Superintendent or the
Landlord before 3:00 p.m. of the business day preceding the extra
usage. For such services, Tenant shall pay Landlord, as additional
rent, upon receipt of billing, a sum equal to the cost incurred by
Landlord.
III. ELECTRICAL SERVICES:
-------------------
A. Landlord shall provide electric power for a combined load of 3.0 xxxxx
per square foot of useable area for lighting and for office machines
through standard receptacles for the typical office space.
B. Landlord, at its option, may require separate metering and direct
billing to Tenant for the electric power required for any special
equipment (such as computers and reproduction equipment) that requires
either 3-phase electric power or any voltage other than 120, or for
any other usage in excess of 3.0 xxxxx per square foot.
4
C. Landlord will furnish and install, at Tenant's expense, all
replacement lighting tubes, lamps and ballasts required by Tenant.
Landlord will clean lighting fixtures on a regularly scheduled basis
at Tenant's expense.
IV. ELEVATORS:
---------
Provide passenger elevator service.
V. WATER:
-----
Provide hot water for lavatory purposes and cold water for drinking,
lavatory and toilet purposes.
VI. CARD ACCESS SYSTEM:
------------------
Landlord will provide a card access system at one entry door of the
building.
5
00 XXXXXXXX XXXXXX
XXXXXXXXX, XX
SOFTWARE. COM, INC.
EXHIBIT D
FLOOR PLAN
10,900 R.S.F.
FIRST FLOOR
[FLOOR PLAN APPEARS HERE]
First Floor Plan
EXHIBIT E
---------
DECLARATION AFFIXING THE COMMENCEMENT DATE OF LEASE
---------------------------------------------------
THIS AGREEMENT made this __ day of ____, 1996, by and between XXXXXXXX X.
XXXXXXXXX AND XXXXXX X. XXXXX, TRUSTEES OF 00 XXXXXXXX XXXXXX TRUST under
Declaration of Trust dated September 28, 1981 filed the Middlesex South Registry
District of the Land Court as Document No. 616455 as amended by instruments
dated December 10, 1984 and April 17, 1991 respectively filed with said Registry
District as Document Nos. 675674 and 844541 but not individually (hereinafter
"Landlord") and XXXXXXXX.xxx, INC. (hereinafter "Tenant").
W I T N E S S E T H T H A T :
- - - - - - - - - - - - - -
1. This Agreement is made pursuant to Section 2.4 of that certain Lease
dated __, 1996 between the parties aforenamed as Landlord and Tenant (the
"Lease").
2. It is hereby stipulated that the Lease Term commenced on _____ __, ____,
(being the "Commencement Date" under the Lease), and shall end and expire on
_____ __, ____, unless sooner terminated or extended, as provided for in the
Lease.
3. Tenant hereby acknowledges and agrees with Landlord that on the
Commencement Date the Premises complied with all of the requirements of Article
III of the Lease and that the Landlord satisfied all of its obligations under
said Article III.
WITNESS the execution hereof under seal by persons hereunto duly
authorized, the date first above written.
WITNESS: LANDLORD:
__________________________ ____________________________________________
XXXXXX X. XXXXX, AS TRUSTEE OF
00 XXXXXXXX XXXXXX TRUST FOR HIMSELF AND
CO-TRUSTEE, BUT NOT INDIVIDUALLY
Signatures continued on next page
TENANT:
XXXXXXXX.xxx, INC.
ATTEST:
By:___________________________________
___________________________ Name:_________________________________
Name:______________________ Title:________________________________
HEREUNTO DULY AUTHORIZED
Title:_____________________
(CORPORATE SEAL)
COMMONWEALTH OF MASSACHUSETTS
COUNTY OF SUFFOLK ___________ ___, 1996
Then personally appeared before me the above-named Xxxxxx X. Xxxxx, Trustee
as aforesaid, and made oath that the foregoing instrument is his free act and
deed.
______________________________________
NOTARY PUBLIC
My Commission Expires:
_____________________
-2-
COMMONWEALTH OF MASSACHUSETTS
COUNTY OF _______________ ___________ ___, 1996
Then personally appeared before me the above-named ____________________,
the _______________, of XXXXXXXX.xxx, INC. and acknowledged the foregoing
instrument to be the free act and deed of said corporation.
______________________________________
NOTARY PUBLIC
My Commission Expires:
_____________________
-3-
