Exhibit 10.10
LEASE
by and between
NDNE 9/90 000 XXXXXXXX XXXXXXXXX LLC,
its successors and assigns
as Landlord and
NETEZZA CORPORATION,
an entity incorporated under the laws
of the State of Delaware,
as Tenant
Dated as of: February 12, 2004
TABLE OF CONTENTS
SECTION 1-Reference Data
Section 1.1 Reference Information
Section 1.2 Exhibits
SECTION 2-Premises and Term
Section 2.1 Premises
Section 2.2 Term
Section 2.3 Appurtenant Rights and Reservations
SECTION 3-Improvements
Section 3.1 Landlord's Work
Section 3.2 Tenant's TI Work
Section 3.3 General Provisions Applicable to Construction
Section 3.4 Changes in Lot
SECTION 4-Annual Rent
Section 4.1 The Annual Rent
SECTION 5-Operating Cost Escalation
Section 5.1 Operating Cost Escalation
Section 5.2 Estimated Operating Cost Escalation Payments
SECTION 6-Real Estate Tax Escalation
Section 6.1 Real Estate Tax Escalation
Section 6.2 Real Estate Escalation Payments
Section 6.3 Tenant Audit Right
SECTION 7-Insurance
Section 7.1 Tenant's Insurance
Section 7.2 Requirements Applicable to Insurance Policies
Section 7.3 Waiver of Subrogation
SECTION 8-Landlord's Covenants
Section 8.1 Quiet Enjoyment
Section 8.2 Maintenance and Repair
Section 8.3 Electricity
Section 8.4 HVAC
Section 8.5 Cleaning
Section 8.6 Interruptions
Section 8.7 Indemnity
SECTION 9-Tenant's Covenants
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Section 9.1 Use
Section 9.2 Repair and Maintenance
Section 9.3 Compliance with Law and Insurance Requirements
Section 9.4 Tenant's Work
Section 9.5 Indemnity
Section 9.6 Landlord's Right to Enter
Section 9.7 Personal Property at Tenant's Risk
Section 9.8 Yield Up
Section 9.9 Estoppel Certificate
Section 9.10 Landlord's Expenses Re Consents
Section 9.11 Rules and Regulations
Section 9.12 Holding Over
Section 9.13 Assignment and Subletting
Section 9.14 Overloading and Nuisance
SECTION 10-Casualty or Taking
Section 10.1 Abatement of Rent
Section 10.2 Landlord's Right Of Termination
Section 10.3 Restoration
Section 10.4 Section Award
Section 10.5 Temporary Taking
Section 10.6 No Liability On Account Of Injury To Business, Etc.
SECTION 11-Default
Section 11.1 Event of Default
Section 11.2 Remedies
Section 11.3 Remedies Cumulative
Section 11.4 Landlord's Right to Cure Defaults
Section 11.5 Effect of Waivers of Default
Section 11.6 No Accord and Satisfaction
Section 11.7 Interest on Overdue Sums
Section 11.8 Cost and Expenses
SECTION 12-Mortgages
Section 12.1 Rights of Mortgage Holders
Section 12.2 Lease Subordinate
SECTION 13-Miscellaneous Provisions
Section 13.1 Notices from One Party to the Other
Section 13.2 Lease Not to be Recorded;Notice of Lease
Section 13.3 Bind and Inure; Limitation of Landlord's Liability
Section 13.4 Acts of God
Section 13.5 Landlord's Default
Section 13.6 Brokerage
Section 13.7 Miscellaneous
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Section 13.8 Security Deposit/Letter of Credit
Section 13.9 Leasehold Lot
Section 13.10 Americans With Disabilities Act
Section 13.11 Hazardous Materials
Section 13.12 Substitute Space
Section 13.13 Option to Extend
Section 13.14 Financial Statements
Section 13.15 Termination of Prior Lease
Section 13.16 Building Sign
Section 13.17 Twenty Four Hour Access
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LEASE
SECTION 1
Reference Data
Section 1.1 Reference Information. Reference in this Lease to any of the
following shall have the meaning set forth below:
Date of this Lease: February ___, 2004
Premises: That portion (shown as outlined on
Exhibit A) of the Building on the Lot
known as and numbered 000 Xxxxxxxx
Xxxxxxxxx in Framingham,
Massachusetts, consisting of
approximately 31,179 rentable square
feet of which approximately 26,072
rentable square feet (the "Original
Premises") is located on the fifth
(5th) floor of the Building and
approximately 5,107 rentable square
feet (the "Expansion Space") are
located on the fourth (4th) floor of
the Building.
Landlord: NDNE 9/90 000 Xxxxxxxx Xxxxxxxxx LLC
Address of Landlord: c/o National Development
0000 Xxxxxxxxxx Xxxxxx
Xxxxxx Xxxxx Xxxxx, Xxxxxxxxxxxxx
00000
Tenant: Netezza Corporation, a Delaware
corporation
Address of Tenant: 000 Xxxxxxxx Xxxxxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
Landlord's Construction Representative: Xxxx X. Paris
Tenant's Construction Representative: Xxxxxxx X. Xxxxxxxx
Anticipated Commencement Date: Not applicable.
Commencement Date: As specified in Section 3.1.
Original Term: Four (4) years beginning on the Commencement Date; provided,
however, if the Commencement Date is other then the first day of a calendar
month, the partial calendar month falling between the Commencement Date and the
first day of the first full calendar month immediately following the
Commencement Date shall be included in the Term of this Lease and the Original
Term shall include such partial calendar month.
Premises Square Footage: Agreed to be 31,179 rentable square
feet.
Annual Fixed Rent:
Period Annual Fixed Rent Annual Fixed Rent
------ ----------------- -----------------
(per annum) (monthly payment)
Original Term $623,580.00 $51,965.00
Notwithstanding the foregoing to the contrary, provided that no Event of Default
by Tenant shall exist and be continuing, Tenant shall be entitled to a credit in
the amount of Four Thousand One Hundred Sixty Six and 66/100ths ($4,166.66)
Dollars against each of the first six (6) monthly payments of Annual Fixed Rent
but in no event shall such credit exceed Twenty Five Thousand ($25,000.00)
Dollars.
Annual Base Operating Costs: An amount equal to the Operating Costs for the
Property during the calendar year January 1, 2002 through December 31, 2002
provided, however, that Park Common Expenses shall be excluded from the Annual
Base Operating Costs.
Annual Base Real Estate Taxes: An amount equal to the Real Estate Taxes for the
Property applicable to the fiscal tax year July 1, 2002 to June 30, 2003.
Permitted Uses: General Office, including sales, service, training, research and
development to the extent permitted by applicable zoning by-laws, codes,
ordinances and statutes.
Security Deposit: Three Hundred Ten Thousand One Hundred Seventy and No/100ths
($310,170.00).
Additional Rent: Any sum or payment designated under this Lease as constituting
"Additional Rent" or "additional rent" including, without limitation, payments
by Tenant on account of (i) Operating Cost Escalation under Section 5 and (ii)
Real Estate Tax Escalation under Section 6.
Brokers: None.
Building: The approximately 123,750 square foot building erected on the Fee Lot
and all alterations and additions thereto and replacements thereof.
Building Square Footage: Agreed to be 123,750 rentable square feet.
Business Day: All days except Sundays and legal holidays.
Business Hours: 8:00 a.m. to 6:00 p.m. on all Business Days except Saturdays
from 8:00 a.m. to 1:00 p.m.
Cross Easement: The Cross Easement attached hereto as Exhibit H together with
any amendments thereto from time to time.
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Entire Leasehold Lot: As defined in Section 6.1 hereof. The Leasehold Lot is
part of the Entire Leasehold Lot.
Fee Lot: The lot or parcel of land on which the Building is located and more
particularly set forth in Exhibit B.
Ground Lease: The Indenture of Lease dated as of August 15, 1980, between the
Inhabitants of Xxx Xxxx xx Xxxxxxxxxx ("Xxxx") as landlord and The First
National Bank of Boston (Bank of Boston) notice of which is recorded with the
Middlesex South Registry of Deeds (The Registry) in Book 14306, Page 282 (the
"Original Ground Lease"). The interest of The Bank of Boston as tenant under the
Original Ground Lease was assigned to 9/90 Crossing Associates Limited
Partnership ("9/90") pursuant to that certain lease assignment dated as of July
29, 1987, and recorded with the Registry in Book 18428, Page 050. The interest
of "9/90" as tenant under the Original Ground Lease was further assigned by
"9/90" to Rose Holding, Inc. ("Rose") pursuant to that certain Lease Assignment
dated as of June 10, 1994, recorded with the Registry in Book 24620, Page 63.
The Original Ground Lease was amended by amendment to lease dated the August,
1996, by and between the Town and Rose. All references herein to the Original
Ground Lease shall mean the Original Ground Lease as so assigned and amended.
The interest of Rose as tenant under the Ground Lease under the Original Ground
Lease insofar as it relates to the Leasehold Lot was assigned to the Landlord
hereunder by Assignment and Assumption of Leasehold Interest dated January 21,
1998 from Rose to Landlord (the "Rose Partial Assignment"). All references in
this Lease to the Ground Lease shall mean the Original Ground Lease as assigned
to Landlord by the Rose Partial Assignment as it may be further assigned or
amended from time to time and, for purposes hereof, the premises thereunder
shall be deemed to include only the Leasehold Parking Area and all obligations
of Landlord as tenant thereunder related solely to the Leasehold Parking Area.
Guarantor: N/A.
Leasehold Lot: Parcel B-2 as described in Exhibit B on which the Leasehold
Parking Area is located, subject to adjustments in the boundaries thereof from
time to time.
Leasehold Parking Area: The areas designated as the Leasehold Parking Area on
Exhibit C attached hereto and any alteration or replacement thereof designated
by Landlord in writing to Tenant.
Lot or Lots: The Fee Lot and the Leasehold Lot, as the same may be configured
and constituted from time to time.
Maximum Number of Parking Spaces: Four (4) spaces per 1,000 rentable square feet
included in the Premises.
Park: The term "Park" shall mean the land described in Exhibits A-4 and A-2 of
the Park Covenants together with other land hereafter added thereto under the
Park Covenants and together with the buildings, structures and other
improvements as may, from time to time, be
3
constructed thereon, and all of which are referred to in the Park Covenants as
"9/90 Corporate Center".
Park Common Expenses: As defined in Section 5.1.
Park Covenants: The Amended and Restated Declaration of Covenants, Restrictions,
Development Standards and Easements attached hereto as Exhibit G together with
any amendments thereto from time to time.
Property: The Building, the Lots and the Leasehold Parking Area.
Public Liability Insurance Limit:
Bodily Injury Combined single limit of $4,000,000, or such greater
and Property Damage amount as reasonably required by Landlord from time to
time.
Tenant Plan Delivery Date: Not Applicable.
Tenant's Electrical Percentage Share: As defined in Section 8.3 (Initially,
59.8%).
Tenant's Proportionate Share: Twenty Five and Two Tenths (25.2%) Percent.
Term of this Lease: The Original Term and any proper extension period extending
the Original Term.
Section 1.2 Exhibits. The following Exhibits are attached to and
incorporated in this Lease:
Exhibit A: Plan of Premises
Exhibit A-1: Site Plan of Building and Lot (includes Leasehold lot)
Exhibit B: Lot
Exhibit C: Leasehold Parking Area
Exhibit D: None
Exhibit E Landlord's Cleaning Specifications
Exhibit F: Rules and Regulations
Exhibit G: Park Covenants
Exhibit H: Cross Easement
Exhibit I: List of Plans Showing "Approved Tenant's TI Work"
SECTION 2
Premises and Term
Section 2.1 Premises. Landlord hereby leases and demises the Premises to
Tenant and Tenant hereby leases the Premises from Landlord, subject to any and
all existing easements,
4
restrictions and encumbrances and other matters of record and subject to the
terms and provisions of this Lease.
Section 2.2 Term. TO HAVE AND TO HOLD for the Original Term (as defined in
Section 1.1) unless sooner terminated pursuant to the terms of this Lease.
Section 2.3 Appurtenant Rights and Reservations.
(a) Tenant shall have, as appurtenant to the Premises, the non-exclusive
right to use, and permit its invitees to use in common with others, public or
common lobbies, hallways, stairways, elevators and common walkways necessary for
access to the Building, the common toilets, corridors and elevator lobby of such
floor; but such rights shall always be subject to the rules and regulations from
time to time established by Landlord pursuant to this Lease and to the right of
Landlord to designate and change from time to time areas and facilities so to be
used. Tenant and its employees shall also have the non-exclusive right to use,
in common with others entitled thereto, such other common areas and facilities
in or appurtenant to the Building as Landlord may from time to time designate
and provide. Tenant and its employees shall also have the non-exclusive right to
use, in common with others from time to time entitled thereto, the parking areas
located on the Fee Lot and the Leasehold Parking Area for the parking of
registered and insured motor vehicles.
(b) Excepted and excluded from the Premises are exterior faces of exterior
walls, the common stairways and stairwells, elevators and elevator shafts, fan
rooms, mechanical, electric and telephone closets, janitor closets, freight
elevator vestibules and pipes, ducts, conduits, wires and appurtenant fixtures
serving exclusively or in common other parts of the Building, but included in
the Premises are all entry doors to the Premises and all special installations
of Tenant, such as interior stairs, special flues and special air conditioning
facilities. Landlord reserves the right from time to time, without unreasonable
interference with Tenant's use: (a) to install, use, maintain, repair, replace
and relocate for service to the Premises and other parts of the Building, or
either, pipes, ducts, conduits, shafts, wires and appurtenant fixtures, wherever
located in the Premises or Building, and (b) to alter or relocate any other
common facility, provided that substitutions are substantially equivalent or
better. Landlord reserves the exclusive use of all fan rooms, electric and
telephone closets, janitor closets, freight elevator vestibules, pipes, ducts,
conduits, wires and appurtenant fixtures located within the Premises which serve
exclusively or in common other parts of the Building. Landlord shall, in its
exercise of rights under this Section 23(b), use reasonable efforts to avoid or
minimize any inconvenience to Tenant and Tenant's use and enjoyment of the
Premises.
SECTION 3
Improvements
Section 3.1 Landlord's Work.
(a) Landlord agrees to (i) disassemble certain work stations which are in
the location of the new demising wall referenced in (ii) below and necessary to
be removed in order to
5
construct the demising wall (ii) install a demising wall for the Expansion Space
where noted on Exhibit A attached hereto (iii) remove work stations in the
Expansion Space not being utilized by Tenant and of which Tenant gives Landlord
written notice on or before February 15, 2004 and (iv) remove one (1) conference
room table (collectively (i), (ii), (iii) and (iv) being "Landlord's Work") at
Landlord's sole cost and expense on or before the Commencement Date, utilizing
quality material and construction practices. The Landlord's Work will be
performed by Landlord's general contractor. Landlord agrees to use good faith
diligent efforts to complete the Landlord's Work on or before the Commencement
Date. With the exception only of Landlord's Work, the Premises shall be leased
to Tenant in its "as is, where is" condition as of the date hereof and on the
Commencement Date and Landlord shall not be required to make nor to pay for any
alterations or improvements necessary or required in connection with Tenant's
use and/or occupancy of the Premises.
Landlord shall use good faith efforts to complete the Landlord's Work and
deliver the Expansion Space to Tenant broom-clean and free of all occupants on
or before March 1, 2004. The Commencement Date of this Lease shall be the first
to occur of (i) the date of substantial completion of the Landlord's Work and
the Approved Tenant's TI Work (as defined in Section 3.2(b) and delivery of the
Expansion Space broom-clean and free of all occupants or (ii) the date upon
which Tenant commences use or occupancy of all or any part of the Expansion
Space for the Permitted Uses as opposed to mere entry for the limited purposes
allowed in connection with an Early Entry (as hereafter defined).
At such time and to the extent that Landlord shall reasonably determine
that Landlord's Work (as said term is hereafter defined) has progressed to the
point that entry by Tenant or Tenant's contractors will not materially interfere
with the performance and completion of Landlord's Work, Landlord shall permit
Tenant, Tenant's employees and Tenant's contractors and vendors to enter the
Premises prior to the Commencement Date ("Early Entry") in order to perform
Tenant's TI Work and installations of telecommunications, voice and data
systems, furniture and other equipment. Such Early Entry shall be upon and
subject to all of the terms, covenants and provisions of this Lease
notwithstanding that the Commencement Date shall not then have occurred except
that Tenant shall not be responsible for the payment of Basic Rent and
Additional Charges pursuant to Sections 5 and 6 hereof until the occurrence of
the Commencement Date.
Tenant shall have the right, but not the obligation, to, within thirty (30)
days after the Commencement Date, have the rentable square footage of the
Expansion Space measured by an architect or engineer selected by Tenant and
approved by Landlord which approval will not be unreasonably withheld. If Tenant
fails to complete such measurement and deliver a copy thereof to Landlord
together with a notice (a "Measurement Notice") claiming a right to
remeasurement hereunder within thirty (30) days after the Commencement Date,
such failure shall constitute a waiver on the part of the Tenant to thereafter
measure or challenge the rentable square footage of the Expansion Space. If such
Measurement Notice and related measurement of the rentable square footage of the
Expansion Space is delivered to Landlord within such thirty (30) day period,
then Landlord and Tenant shall promptly meet in an attempt to resolve their
differences as to the rentable square footage of the Expansion Space and pending
resolution of such differences, the Expansion Space shall be deemed to continue
to have rentable square footage set
6
forth in this Lease. Upon agreement or final resolution by a court of competent
jurisdiction as to the rentable square footage of the Expansion Space, the
Annual Fixed Rent and Tenant's Proportionate Share shall be adjusted to take
into account any increase or decrease of the rentable square footage resulting
from such measurement. Tenant's architect or engineer shall use Landlord's
measurement method for the calculation of rentable square footage in the
Building in determining rentable square footage of the Premises. Upon request of
Landlord, Tenant shall promptly execute a declaration setting forth the actual
Commencement Date of this Lease as well as any adjustment to the rentable square
footage of the Premises and Tenant's Proportionate Share resulting from
remeasurement of the Expansion Space by Tenant.
Section 3.2 Tenant's TI Work. (a) Tenant shall have the right to make
alterations and improvements to the Expansion Space as well as related work in
the Original Premises (the "Tenant's TI Work") at Tenant's sole cost and expense
pursuant to plans and specifications therefor which shall be subject to the
prior approval of Landlord, which approval will not be unreasonably withheld or
delayed. The Tenant's TI Work shall be performed on behalf of Tenant by Xxxxxxxx
Construction of New England ("Cranshaw") at Tenant's sole cost and expense
(except as provided in Section 3.2(b) hereof) and shall be coordinated with the
Landlord's Work. Cranshaw will seek competitive bids from subcontractors for
subcontract work related to the Tenant's TI Work and will include on the
subcontractor bid list, subcontractors recommended by Tenant. All work done by
Cranshaw shall be performed on as so-called "open book basis". The fee payable
to Cranshaw in connection with acting as general contractor for the Tenant's TI
Work will be five (5%) percent of the cost of the work inclusive of general and
special conditions. Landlord shall not be required to approve any improvements
or any Tenant's TI Work which are not conformity with plans and specifications
for the Building or which are not approved by Landlord's architect or which do
not comply with applicable law, ordinances or codes.
(b) Landlord hereby approves the Tenant's TI Work shown on Exhibit I (the
"Approved Tenant's TI Work"). Landlord shall retain Xxxxxxxx Construction to
perform the Approved Tenant's TI Work shown on the Plans listed in Exhibit I at
Landlord's cost and expense, subject to Tenant's obligation to pay the Tenant's
Share (as hereafter defined). Tenant shall pay Landlord the amount of $25,000.00
(the "Tenant's Share") toward the cost of the Approved Tenant's TI Work as
Additional Rent under this Lease within fourteen (14) days after invoice
therefore by Landlord, which invoice shall not be rendered prior to the
Commencement Date.
Section 3.3 General Provisions Applicable to Construction. All construction
work required or permitted by this Lease, whether by Landlord or by Tenant,
shall be done in a good and workmanlike manner and in compliance with all
applicable laws and all ordinances, regulations and orders of governmental
authority and insurers of the Building. Either party may inspect the work of the
other at reasonable times and shall give notice of observed defects. All of
Landlord's obligations under Section 3 shall be deemed to have been performed
when Landlord provides Tenant with a written notice that Landlord's Work has
been completed, except for items which are incomplete or do not conform with the
requirements of Section 3 and as to which Tenant shall in either case have given
notice to Landlord within 30 days after receipt of the written notice described
above (except for latent defects which cannot reasonably be
7
discovered within such thirty (30) days), and Landlord's obligations with
respect to the items included in such notice shall be deemed to have been
performed ten (10) Business Days after Landlord shall have notified Tenant in
writing that the same have been completed unless during such ten day period
Tenant shall give written notice to Landlord to the contrary.
Section 3.4 Changes in Lot. Landlord reserves the right to change the
layout, design, boundaries, location and plans for the Lot and Leasehold Parking
Area and for parking and roadways thereon or serving the same at any time and to
add to or reduce or reconfigure the size of the Lot; provided that no reduction
in the size of the Lot or Leasehold Parking Area may adversely affect the
Building or the number of parking spaces made available to Tenant under this
Lease or access ways serving the Building, and no work done under this Section
3.4 shall materially adversely affect Tenant's use and enjoyment of the
Premises, including parking .
SECTION 4
Annual Rent
Section 4.1 The Annual Rent. Tenant shall pay all Annual Fixed Rent and
Additional Rent to Landlord at the Address of Landlord or at such other place or
to such other person or entity as Landlord may by notice to Tenant from time to
time direct in equal installments equal to 1/12th of the Annual Fixed Rent and
Additional Rent from time to time payable hereunder in advance on the first day
of each calendar month included in the Term of this Lease, and for any portion
of a calendar month at the beginning or end of the Term of this Lease, at that
rate payable in advance for such portion. Tenant shall pay a late charge equal
to four (4%) percent of the amount of any Annual Rent or Additional Rent payment
or other charge which is not paid within five (5) days of written notice from
Landlord that such amount is overdue.
The Annual Fixed Rent and Additional Rent and all other sums payable
hereunder to Landlord shall be paid without notice or demand and without setoff,
abatement, suspension, deferment. Except as otherwise expressly provided in this
Lease or by operation of law or by final decree or final judgment of any court
having jurisdiction, this Lease shall not terminate, nor shall Tenant have any
right to terminate this Lease, nor shall the obligations and liabilities of
Tenant set forth herein be otherwise affected. Except as expressly provided in
this Lease, Tenant waives all rights to (i) any abatement, suspension,
deferment, reduction or deduction of or from the Annual Fixed Rent and the
Additional Rent or (ii) quit, terminate or surrender this Lease or the Premises
or any part thereon. Except as expressly provided in this Lease, Tenant
covenants and agrees that it will remain obligated under this Lease in
accordance with all of its terms and provisions, and that it will not take any
action to terminate, rescind or avoid this Lease or any portion thereof,
notwithstanding the bankruptcy, insolvency, reorganization, composition,
readjustment, liquidation, dissolution, winding-up or other proceeding affecting
Landlord or any assignee of Landlord in any such proceeding.
SECTION 5
Operating Cost Escalation
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Section 5.1 Operating Cost Escalation. Tenant shall pay to Landlord, as
Additional Rent, Operating Cost Escalation (as defined below) on or before the
10th day following receipt by Tenant of Landlord's Operating Cost Statement (as
defined below). After the end of each calendar year during the term and after
Lease termination, Landlord shall render a statement ("Landlord's Operating Cost
Statement") in reasonable detail and according to usual accounting practices,
certified by Landlord, and showing for the preceding calendar year or fraction
thereof, as the case may be, Landlord's Operating Costs (as defined below).
Landlord's Operating Costs shall include, without limitation, premiums for
insurance covered by Landlord with respect to the Property; compensation and all
fringe benefits, worker's compensation, insurance premiums and payroll taxes
paid by Landlord to, for or with respect to all persons engaged in the managing,
operating, maintaining or cleaning of the Property below the grade of property
manager; water and sewer use charges for the Property; all utility charges
attributable to the interior and exterior common areas and facilities of the
Property; payments to contractors and management companies under service or
management contracts (or other costs incurred directly by Landlord or its
agents) for operating, managing, cleaning, maintaining and repairing the
Property, including, without limitation, management fees, Building cleaning,
window cleaning, pest extermination, trash removal, landscaping, snow removal
and repair and maintenance to elevators, the HVAC, electric and plumbing systems
and parking areas (which payments may be to affiliates of Landlord, provided the
same are at reasonable rates), and all other reasonable and necessary costs and
expenses paid in connection with the cleaning, operating, managing, maintaining,
replacing and repairing of the Building or any other portion of the Property
(except for capital repairs to or capital replacements of the roof or the
foundation or structure of the Building which shall be made by Landlord at its
sole cost and expense and not passed through as Operating Costs). The following
capital repairs and capital replacements are the only categories of capital
expenditure that may be included in Operating Costs and the same may be included
on an amortized basis only, as set forth below: (a) capital expenditures
required to comply with laws enacted or requirements of laws applicable after
the date of this Lease or (b) capital expenditures to repair or replace building
systems or components thereof. Capital expenditures made pursuant to the
preceding sentence shall be amortized over the useful life of the item in
question with interest thereon at an annual rate equal to two (2%) percent above
the base rate (prime rate) of Fleet Bank of Boston (or any other Bank having
offices in Boston, Massachusetts chosen by Landlord) from time to time, shall be
included in Landlord's Operating Costs. Without limiting the generality of the
foregoing, it is also expressly understood and agreed that (a) all costs,
expenses and charges (collectively, the "Park Common Expenses") of any kind or
nature charged or assessed to the Property (or any part thereof) under the Park
Covenants and/or Cross Easement, as either the same may be amended, restated,
modified, changed, supplemented or substituted from time to time and (b) the
cost of all insurance required to be carried by Landlord under the Ground Lease
or which Landlord carries under the Ground Lease shall be included in Operating
Costs. Tenant also agrees that, at the option of Landlord, the entire cost of
all replacements of component parts of machinery and equipment which require
periodic replacement or regularly wear out may be treated as an expense and
shall be fully included as part of Landlord's Operating Costs without the need
to amortize or depreciate the same
In determining Landlord's Operating Costs, if less than 95% of the Building
shall have been occupied by tenants and fully used by them, at any time during
the year, Landlord's
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Operating Costs which vary directly with the level of Building occupancy (such
as cleaning and trash removal) shall be extrapolated to an amount equal to the
like operating expenses that would normally be expected to be incurred had such
occupancy been 95% and had such full utilization been made during the entire
period, but those Operating Costs which do not vary directly with the level of
Building occupancy (such as security costs, snow plowing, utilities to common
areas and the like) shall not be so extrapolated.
"Operating Cost Escalation" shall be equal to Tenant's Proportionate Share
of the excess, if any, of:
(a) Landlord's Operating Costs for each calendar year as indicated by
Landlord's Operating Cost Statement; over
(b) The Annual Base Operating Costs.
Notwithstanding the above calculation, in no event shall Operating Cost
Escalation be less than zero.
Tenant acknowledges that Landlord's formula for sharing of Landlord's
Operating Costs stated in this Lease is based on the assumption that Landlord
will be providing substantially similar services to all tenants in the Property
from year to year. If this assumption is not, in fact, correct, that is, if
Landlord is not furnishing any particular work or service (the cost of which, if
performed by Landlord, would be included in Landlord's Operating Costs) to a
tenant who has undertaken to perform such work or service in lieu of the
performance thereof by Landlord, Operating Costs shall be deemed, for purposes
of this paragraph, to be increased by an amount equal to the additional
Operating Costs which would reasonably have been incurred during such period by
Landlord if it had, at its own expense, furnished such work or service to such
tenant.
Operating Cost Escalations shall be apportioned for any calendar year in
which the Term of this Lease commences or ends. Notwithstanding any other
provision of this Section 5.1, if the Term expires or is terminated as of a date
other than the last day of a calendar year, then for such fraction of a calendar
year at the end of the Term of this Lease, Tenant's last payment to Landlord
under this Section 5.1 shall be made on the basis of Landlord's best estimate of
the items otherwise includable in Landlord's Operating Cost Statement and shall
be made on or before the later of (a) thirty (30) days after Landlord delivers
such estimate to Tenant, or (b) the last day of the Term of this Lease, with an
appropriate reconciliation and payment or refund to be made upon submission of a
final Landlord's Operating Cost Statement.
Section 5.2 Estimated Operating Cost Escalation Payments. If, with respect
to any calendar year or fraction thereof during the Term of this Lease, Landlord
reasonably estimates that Tenant shall be obligated to pay Operating Cost
Escalation, then Tenant shall pay, as Additional Rent, on the first day of each
month of such calendar year and each ensuing calendar year thereafter, estimated
monthly escalation payments equal to 1/12th of the estimated Operating Cost
Escalation for the respective calendar year, with an appropriate additional
payment or refund to be made within 30 days after Landlord's Operating Cost
Statement is delivered to Tenant. Landlord may adjust such estimated monthly
escalation payment from time
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to time and at any time during a calendar year, and Tenant shall pay, as
Additional Rent, on the first day of each month following receipt of Landlord's
notice thereof (which notice shall be accompanied by appropriate documentation
supporting such adjustment), the adjusted estimated monthly escalation payment.
SECTION 6
Real Estate Tax Escalation.
Section 6.1 Real Estate Tax Escalation. Tenant shall pay to Landlord, as
Additional Rent, Real Estate Tax Escalation (as defined below) on or before the
thirtieth (30th) day following billing therefor by Landlord.
As used herein, the term "Real Estate Taxes" shall mean all taxes,
assessments (special, betterment or otherwise), levies, fees, water and sewer
rents and charges, and all other government levies and charges, general and
special, ordinary and extraordinary, foreseen and unforeseen, which are
allocable to the term hereof and imposed or levied upon or assessed against the
Property or any rent or other sums payable by any tenants or occupants thereof.
Notwithstanding anything to the contrary contained in the Lease, the following
shall be excluded from Taxes, inheritance, estate, succession, transfer, gift,
franchise, or capital stock tax or (except to the extent the same are in
substitution, in whole or in part, for ad valorem real estate taxes) any income
taxes arising out of or related to ownership and operation of income-producing
real estate, or any excise taxes imposed upon Landlord based upon gross or net
rentals or other income received by it, provided, however, that if at any time
during the term the present system of ad valorem taxation of real property shall
be changed so that in lieu of the whole or any part of the ad valorem tax on
real property, or in lieu of increases therein, there shall be assessed on
Landlord a capital levy or other tax on the gross rents received with respect to
the Property or a federal, state, county, municipal, or other local income,
franchise, excise or similar tax, assessment, levy or charge (distinct from any
now in effect) measured by or based, in whole or in part, upon gross rents, then
any and all of such taxes, assessments, levies or charges, to the extent so
measured or based ("Substitute Taxes"), shall be included as real estate taxes
hereunder, provided, however, that Substitute Taxes shall be limited to the
amount thereof as computed at the rates that would be payable if the Property
were the only property of Landlord. The term "real estate taxes" shall also mean
all real estate taxes and assessments (or any substitute therefor) which are
charged, assessed or paid by Landlord for and with respect to the Property under
the Park Covenants. The term "Real Estate Taxes" shall also mean and include the
"Lot's Pro Rata Share" (as said term is hereinafter defined) of all "Ground
Lease Taxes" (as said term is hereinafter defined) on the Entire Leasehold Lot.
The term Entire Leasehold Lot shall mean the entire Lot B (of which the
Leasehold Lot forms a part) as Lot B is shown on that certain plan entitled
Subdivision Plan of Land in Framingham, Massachusetts, prepared for Rose
Holding, Inc. by Xxxxxxx Xxxxxx Brustlin, Inc., Scale: 1 Inch = 60 Feet, dated
June 5, 1996, revised June 13, 1996. As used herein, the term "Ground Lease
Taxes" shall mean all Taxes (said term is defined in the Ground Lease) with
respect to the Entire Leasehold Lot (of which the Leasehold Lot is a part) as
set forth in Article 4 of the Ground Lease. If by reason of the fact that the
Town of Framingham is the owner of Entire Leasehold Lot or just the Leasehold
Lot, taxes are not assessed, levied, confirmed or imposed on or with respect to
the Entire Leasehold Lot or
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the Leasehold Lot, then for the period between the Commencement Date and the
expiration of the term of the Ground Lease, Ground Lease Taxes shall include
such amounts ("Alternative Taxes") as the tenant under the Ground Lease would
have been obligated to pay with respect to the Entire Leasehold Lot had
Landlord, as the tenant under the Ground Lease, been the owner of the Entire
Leasehold Lot. If taxes and assessments should ever be assessed against the
Leasehold Lot separate and apart from the Entire Leasehold Lot or if the
"Alternative Taxes" are separately payable under the Ground Lease with respect
only to the Leasehold Lot separate and apart from the Entire Leasehold Lot, then
the term "Real Estate Taxes" during such period shall include 100% of such taxes
and assessments or Alternative Taxes allocable to the Leasehold Lot. As used
herein, the term "Lot's Pro Rata Share" shall mean the quotient derived by
dividing the square footage of the Leasehold Lot by the square footage of the
Entire Leasehold Lot.
"Real Estate Tax Escalation" shall be equal to Tenant's Proportionate Share
of the excess, if any, of:
(a) Real Estate Taxes for the applicable tax fiscal year occurring during
the term; over
(b) the Annual Base Real Estate Taxes.
Notwithstanding the above calculation, in no event shall Real Estate Tax
Escalation be less than zero.
Notwithstanding any other provision of this Section 6.1, if the Term of
this Lease expires or is terminated as of a date other than the last date of a
tax fiscal year, then for such fraction of a tax fiscal year at the end of the
term, Tenant's last payment to Landlord under this Section 6.1 shall be made to
reflect that only a portion of such tax fiscal year falls within the term of
this Lease and shall be made within 10 days after Landlord bills Tenant
therefor.
Section 6.2 Real Estate Escalation Payments. If, with respect to any tax
fiscal year or fraction thereof during the term, Landlord reasonably estimates
that Tenant shall be obligated to pay Real Estate Tax Escalation, Tenant shall
pay, as Additional Rent, on the first day of each month of such tax fiscal year
and each ensuing tax fiscal year thereafter, estimated monthly escalation
payments equal to 1/12th of the estimated Real Estate Tax Escalation for the
respective tax fiscal year, with an appropriate additional payment or refund to
be made within 30 days after Landlord's delivery of the tax bills for such
period to Tenant. Landlord may adjust such estimated monthly escalation payment
from time to time and at any time during a tax fiscal year, and Tenant shall
pay, as Additional Rent, on the first day of each month following receipt of
Landlord's notice thereof, the adjusted estimated monthly escalation payment.
Section 6.3 Tenant Audit Right. Tenant shall have the right to audit the
applicable records of Landlord to confirm that the charges billed to Tenant
under Sections 5 and 6 are proper and conform to the provisions of such
Sections. Such right shall be exercisable by Tenant within three (3) months
after Tenant's receipt of Landlord's annual statement of such charges. Landlord
shall cooperate with Tenant in providing Tenant reasonable access to Landlord's
books and records during normal business hours to enable Tenant to audit
Landlord's books and
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records as they relate to any costs or expenses passed through to Tenant
pursuant to any provisions of this Lease. If the audit discloses any overpayment
on the part of Tenant, then Tenant shall be entitled to a credit on the next
succeeding installment of rent for an amount equal to the overcharge plus
interest on the amount of such overcharge from the date on which same was paid
by Tenant until the date refunded by Landlord at the prime rate then published
in The Wall Street Journal, and such credit shall be extended to succeeding
installments of rent in the event such overcharge exceeds the amount of the next
succeeding such installment and, in the event the term of this Lease has expired
or been earlier terminated, then Tenant shall be entitled to a refund of such
excess from Landlord within thirty (30) days after such date or expiration or
earlier termination. In addition, in the event such audit by Tenant discloses
such an overcharge in excess of the five percent (5%) of the amount payable in
accordance with Sections 5 and 6, then Landlord shall pay to Tenant the
reasonable out of pocket costs and expenses of such audit, not to exceed
$1,500.00 in the aggregate paid by Tenant to an independent third party auditor.
Tenant agrees to keep the results of such audit strictly confidential and shall
require its auditor to likewise keep the results of such audit strictly
confidential.
SECTION 7
Insurance
Section 7.1 Tenant's Insurance. Tenant shall, at Tenant's sole cost and
expense, maintain throughout the term the following insurance:
(a) Commercial general liability insurance for any injury to person or
property occurring on the Property, naming as insureds Tenant, Landlord and such
persons, including, without limitation, Landlord's managing agent, as Landlord
shall designate from time to time, in amounts which shall, at the beginning of
the Term of this Lease, be at least equal to the limits set forth in Section 1,
and, from time to time during the Term of this Lease, shall be for such higher
limits as are reasonably required by Landlord; and
(b) Worker's compensation insurance with statutory limits covering all of
Tenant's employees working at the Premises.
Section 7.2 Requirements Applicable to Insurance Policies. All policies for
insurance required under the provisions of Section 7.1 shall be obtained from
responsible companies qualified to do business in the Commonwealth of
Massachusetts and in good standing therein, which companies and the amount of
insurance allocated thereto shall be subject to Landlord's approval. Tenant
agrees to furnish Landlord with insurance company certificates of all such
insurance and copies of the policies therefor prior to the beginning of the term
hereof and of each renewal policy at least thirty (30) days prior to the
expiration of the policy it renews. Each such policy shall be noncancellable
with respect to the interest of Landlord and such mortgagees without at least
thirty (30) days' prior written notice thereto.
Section 7.3 Waiver of Subrogation. All insurance which is carried by either
party with respect to the Property or to furniture, furnishings, fixtures or
equipment therein or alterations or improvements thereto, whether or not
required, shall include provisions which
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either designate the other party as one of the insureds or deny to the insurer
acquisition by subrogation of rights of recovery against the other party to the
extent such rights have been waived by the insured party prior to occurrence of
loss or injury. On reasonable request, each party shall be entitled to have
duplicates or certificates of policies containing such provisions. Each party
hereby waives all rights of recovery against the other for loss or injury
against which the waiving party is protected by insurance containing said
provisions, reserving, however, any rights with respect to any excess of loss or
injury over the amount recovered by such insurance.
SECTION 8
Landlord's Covenants
Section 8.1 Quiet Enjoyment. Tenant, on paying the rent and performing its
obligations hereunder, shall peacefully and quietly have, hold and enjoy the
Premises throughout the term without any manner of hindrance or molestation from
Landlord or anyone claiming under Landlord, subject, however, to all the terms
and provisions of this Lease.
Section 8.2 Maintenance and Repair. Subject to the provisions of Section
10, Landlord shall maintain the roof, structural supports, foundation and
exterior of the Building and all standard plumbing, electrical, mechanical,
heating, ventilating and air conditioning systems installed by Landlord (but
excluding all special or non-standard systems installed by Tenant or by Landlord
at Tenant's request) in good condition and shall maintain and clean the common
areas of the Building and the Lot, the cost of which shall be included in
Landlord's Operating Costs except to the extent not permitted pursuant to
Section 5.1.
Section 8.3 Electricity. Landlord shall have the right, but not the
obligation, to install a separate meter in or serving the Premises to measure
electricity usage for lights and plugs in the Premises. If electricity for
lights and plugs serving the Premises is separately metered in the future for
the New Premises, then the cost of all electricity for lights and plugs as
measured by such separate meter will be the sole responsibility of the Tenant
and the Tenant shall make payment of all such electricity costs directly to the
utility company furnishing such electricity as and when the same is due and
payable. Tenant acknowledges and agrees that the Premises are not presently
separately metered for electricity but, rather, electricity usage for the
entirety of the fourth floor and fifth floor of the Building (collectively the
"Fourth and Fifth Floors") on which the Premises are located and of which the
Premises form a part, are measured by a separate meter (the "Fourth and Fifth
Floor Meter"). Accordingly, Tenant covenants and agrees to pay Landlord monthly
within ten (10) days of being billed therefor, as additional rent, a sum equal
to Tenant's Electrical Charge (as said term is hereinafter defined). As used
herein, "Tenant's Electrical Charge" shall mean an amount equal to the product
obtained by multiplying (a) the total electrical charges for the entire Fourth
and Fifth Floors as measured by the Fourth and Fifth Floor Meter (the "Billed
Amount") for the applicable period by (b) the Tenant's Electrical Percentage (as
said term is hereinafter defined). As used herein, the term "Tenant's Electrical
Percentage" shall mean a fraction (expressed as a percentage), the numerator of
which shall be the rentable square footage of the Premises as set forth in this
Lease and the denominator of which shall be the rentable square footage of the
Fourth and Fifth Floors, namely, approximately 52,114 rentable square feet;
provided, however, that if one hundred (100%) percent of the
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rentable square footage on the Fourth and Fifth Floors is not leased and
occupied during any particular period for which Tenant's Electrical Charge is
payable, then (a) the Billed Amount with respect to the applicable period for
which the Tenant's Electrical Charge is being computed shall be deemed reduced
by a dollar amount equal to the product obtained by multiplying (i) 8.33 cents
($0.0833) by (ii) the number of rentable square feet on the Fourth and Fifth
Floors vacant during the applicable period and (b) the denominator used in
calculating Tenant's Electrical Percentage (and Tenant's Electrical Charge) for
such period shall be the rentable square footage on the Fourth and Fifth Floors
which is in fact leased and occupied during the same applicable period,
Initially, at the date of this Lease, based on the foregoing, Tenant's
Electrical Percentage is 59.8% but is subject to adjustment as set forth above.
Tenant's Electrical Percentage, subject to adjustment pursuant to Section 3.1,
is 59.8%. If in Landlord's judgment, Tenant's use of electricity is in excess of
normal office usage or shall result in an additional burden on the Building's
utility systems or additional cost on account thereof, as the case may be,
Tenant shall upon demand reimburse Landlord for all additional costs related
thereto. Landlord, at Tenant's expense, shall replace. and install all ballasts,
lamps and bulbs (including, but not limited to, incandescent and fluorescent)
used in the Premises. All such replacements shall be of a type, color and size
as shall be designated by Landlord. Landlord shall not in any way be liable or
responsible to Tenant for any loss, damage or expense which Tenant may sustain
or incur if the quantity, character, or supply of electricity is changed or is
no longer available or suitable for Tenant's requirements.
To the extent separately metered and billed to Tenant, Tenant shall also
pay directly to the proper authorities charged with the collection thereof all
charges for water, sewer, gas, electricity (except for electricity measured by
the Fourth and Fifth Floor Meter), fire protection and other utilities (except
for electricity measured by the Fourth and Fifth Floor Meter) used or consumed
on the Premises by Tenant or any party claiming by, through or under Tenant,
whether called charge, tax, assessment, fee or otherwise, all such charges to be
paid as the same from time to time become due. It is understood and agreed that
Tenant shall make its own arrangements for obtaining service from such utilities
and that Landlord shall not be liable for any interruption or failure in the
supply of any such utilities to the Premises. If Tenant is not charged directly
by the respective utility for any of such utilities or services, Tenant shall
from time to time, within ten (10) days of Landlord's invoice therefor, pay to
Landlord such charges and services from the utility company.
Section 8.4 HVAC. Landlord shall, on Business Days and generally during
Business Hours furnish heating and cooling as normal seasonal changes may
require to provide reasonably comfortable space temperature and ventilation for
occupants of the Premises under normal business operation at an occupancy of not
more than one (1) person per 150 square feet of usable floor area. If Tenant
shall require air-conditioning, heating or ventilation outside the hours and
days above specified, Landlord shall furnish such service and Tenant shall pay
to Landlord therefor such charges as may from time to time be in effect. In the
event Tenant introduces into the Premises personnel or equipment which overloads
the capacity of the Building system or in . any other way interferes with the
system's ability to perform adequately its proper functions, or which affects
the temperature otherwise maintained by the air-conditioning system,
supplementary systems may, if and as needed, at Landlord's option, be provided
by Landlord, at Tenant's expense.
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Section 8.5 Cleaning. Landlord shall provide nightly cleaning services for
the Premises (Mondays through Fridays only) including removal and disposal of
usual office trash and refuse as described in Exhibit E.
Section 8.6 Interruptions. 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 power losses or shortages or from the necessity of
Landlord's entering the Premises for any of the purposes authorized by this
Lease or for repairing the Premises or any portion of the Building or Lot or
Additional Parking Area. In case Landlord is prevented or delayed from making
any repairs, alterations or improvements, or furnishing any service or
performing any other obligation to be performed on Landlord's part, by reason of
any cause, Landlord shall not be liable to Tenant therefor, nor shall Tenant be
entitled to any abatement or reduction of rent by reason thereof, nor shall the
same give rise to any claim by Tenant that such failure constitutes actual or
constructive, total or partial, eviction from the Premises. Landlord reserves
the right to stop any service or utility system when necessary by reason of
accident or emergency or until necessary repairs have been completed. Except in
case of emergency repairs, Landlord will give Tenant reasonable advance notice
of any contemplated stoppage and will use reasonable efforts to avoid
unnecessary inconvenience to Tenant by reason thereof. Landlord also reserves
the right to institute such policies, programs and measures as may be necessary,
required or expedient for the conservation or preservation of energy or energy
services or as may be necessary or required to comply with applicable codes,
rules, regulations or standards. In so doing, Landlord shall make reasonable
efforts to avoid unnecessary inconvenience to Tenant by reason thereof.
Notwithstanding anything contained in this Lease to the contrary, if (i) an
interruption or curtailment, suspension or stoppage of an Essential Service (as
said term is hereinafter defined) shall occur (any such interruption of an
Essential Service being hereinafter referred to as a "Service Interruption"),
(ii) such Service Interruption occurs or continues as a result of a voluntary
interruption, stoppage or suspension of Essential Services by Landlord not
otherwise permitted pursuant to this Lease or as the result of any circumstance
which is subject to the control of Landlord, (iii) such Service Interruption
continues for more than fifteen (15) consecutive calendar days after Landlord
shall have received notice thereof from Tenant, (which notice shall specifically
refer to the provisions of this paragraph) and (iv) as a result of such Service
Interruption, the conduct of Tenant's normal operations in the Premises are
materially and adversely affected, then there shall be an abatement of one day's
Annual Fixed Rent for each day during which such Service Interruption continues
provided, further, that if any part of the Premises is reasonably useable for
Tenant's operations or if Tenant conducts all or any part of its operations in
the Premises notwithstanding such Service Interruption, then the amount of each
daily abatement of Annual Fixed Rent shall only be proportionate to the nature
and extent of the interruption of Tenant's normal operations. If Landlord fails
to perform its repair obligations within the timeframes allowed by this Section
8.6 and provided that no Event of Default has occurred under this Lease, Tenant
shall have the right to make any necessary repairs and xxxx Landlord the actual
cost of said repairs up to a maximum amount of five percent (5%) of the Annual
Fixed Rent for the applicable Lease Year in which said repairs were made. For
purposes hereof, the term "Essential Services" shall mean the following
services, to the extent that Landlord has agreed to provide any of them to
Tenant pursuant to this Lease: elevator service,
16
heating, air-conditioning, water and electricity. Any abatement of Annual Fixed
Rent under this paragraph shall apply only with respect to Annual Fixed Rent
allocable to the period after each of the conditions set forth in subsections
(i) through (iv) hereof shall have been satisfied, and shall not be binding on
the holder of any mortgage in the Property from time to time nor upon any
purchaser at foreclosure in lieu thereof.
Section 8.7 Indemnity. Subject to the provisions of Section 7.3, Section
9.7, Section 10.6 and Section 13.3, Landlord shall defend, with counsel
reasonably approved by Tenant, all actions against Tenant. with respect to, and
shall pay, protect, indemnify and save harmless, to the extent permitted by law,
Tenant from and against, any and all liabilities, losses, damages, costs,
expenses (including reasonable attorneys' fees and expenses), causes of action,
suits, claims, demands or judgments of any nature arising from (a) injury to or
death of any person, or damage to or loss of property, occurring on the Property
unless caused by the negligence or willful misconduct of Landlord or its
servants or agents, (b) any wrongful act or other misconduct of Landlord or its
agents, contractors, licensees, sublessees or invitees. The indemnity contained
in this Section 8.7 shall survive any expiration or earlier termination of this
Lease.
SECTION 9
Tenant's Covenants
Section 9.1 Use. Tenant shall use the Premises only for the Permitted Uses
and shall from time to time procure all licenses and permits necessary therefor
at Tenant's sole expense.
Section 9.2 Repair and Maintenance. Except as otherwise provided in
Sections 8 and 10, Tenant shall keep the Premises, including all plumbing,
electrical, heating, air conditioning (excluding the building standard heating
and air conditioning equipment) but including all supplemental, non-standard
and/or special HVAC systems and equipment and all HVAC systems and equipment
installed by Tenant or by Landlord at Tenant's request to serve Tenant
exclusively and other systems therein, in good order, condition and repair and
in at least as good order, condition and repair as they are in on the
Commencement Date or may be put in during the term, reasonable use and wear only
excepted. Tenant shall make all repairs and replacements and do all other work
necessary for the foregoing purposes. Tenant shall keep in a safe, secure and
sanitary condition all trash and rubbish temporarily stored at the Premises.
Section 9.3 Compliance with Law and Insurance Requirements. Tenant shall
make all repairs, alterations, additions or replacements to the Premises
required by any law or ordinance or any order or regulation of any public
authority arising from Tenant's particular manner of use of the Premises (as
opposed to office use generally) and shall keep the Premises equipped with all
safety appliances so required. Tenant shall not dump, flush, or in any way
introduce any Hazardous Materials (as defined in Section 13.11) or any other
toxic substances into the septic, sewage or other waste disposal system serving
the Premises, or generate, store or dispose of Hazardous Materials in or on the
Property or Premises or dispose of Hazardous Materials from the Property or
Premises to any other location without the prior written consent of Landlord and
then only in compliance with Environmental Laws (as defined in Section 13.11).
Tenant shall
17
notify Landlord of any incident which would require the filing of a notice with
any governmental authorities under any Environmental Laws and shall comply with
the orders and regulations of all governmental authorities with respect to
zoning, building, fire, health and other codes, regulations, ordinances or laws
applicable to the Premises.
Landlord may, but shall not be obligated to, upon thirty (30) days written
notice to Tenant (except in the case of an emergency where Landlord reasonably
believes there is imminent danger to persons or property, in which event no
advance notice shall be required), make any of the repairs, alterations,
additions or replacements referred to in this Section which affect the Building
structure or the Building systems, and as Additional Rent, Tenant shall
reimburse Landlord for the actual out-of-pocket cost thereof on demand.
Tenant will provide Landlord, from time to time upon Landlord's request,
with all records and information regarding any Hazardous Materials maintained on
the Premises by Tenant.
Landlord shall have the right to make such inspections as Landlord shall
reasonably elect from time to time to determine if Tenant is complying with this
Section and if any of such inspections reveals contamination by Hazardous
Materials of the Building, the Lot or the Premises as a result of Tenant's
operations or actions or the actions of Tenant's agents, contractors or
employees, Tenant shall, as Additional Rent, reimburse Landlord for the actual
out-of-pocket cost of performing (or contracting for) such inspections.
Tenant shall comply promptly with the recommendations of any insurer, which
may be applicable to the Premises, by reason of Tenant's use thereof. In no
event shall any activity be conducted by Tenant on the Premises which may give
rise to any cancellation of any insurance policy or make any insurance
unobtainable.
Section 9.4 Tenant's Work. Tenant shall not make any installations,
alterations, additions or improvements in or to the Premises, including, without
limitation, any apertures in the walls, partitions, ceilings or floors, without
on each occasion obtaining the prior written consent of Landlord. Any such work
so consented to by Landlord shall be performed only in accordance with plans and
specifications therefor approved by Landlord. Tenant shall procure at Tenant's
sole expense all necessary permits and licenses before undertaking any work on
the Premises and shall perform all such work in a good and workmanlike manner
employing materials of good quality and so as to conform with all applicable
zoning, building, fire, health and other codes, regulations, ordinances and laws
and with all applicable insurance requirements. If requested by Landlord, Tenant
shall furnish to Landlord prior to the commencement of any such work a bond or
other security acceptable to Landlord assuring that any work by Tenant will be
completed in accordance with the approved plans and specifications. Tenant shall
keep the Premises at all times free of liens for labor and materials. Tenant
shall require all contractors employed by Tenant to carry worker's compensation
insurance in accordance with statutory requirements and comprehensive general
liability insurance covering such contractors, and naming Landlord and Tenant as
additional insureds, on or about the Premises in amounts at least equal to the
limits set forth in Section 1 and to submit certificates evidencing such
coverage to Landlord prior to the commencement of such work. Tenant shall save
Landlord harmless and
18
indemnified from all injury, loss, claims or damage to any person or property
occasioned by or growing out of such work. Landlord may inspect the work of
Tenant at reasonable times and give notice of observed defects.
Section 9.5 Indemnity. Tenant shall defend, with counsel reasonably
approved by Landlord, all actions against Landlord, any member, partner,
trustee, stockholder, officer, director, employee or beneficiary of Landlord,
holders of mortgages secured by the Building and any other party having an
interest in the Premises ("Indemnified Parties") with respect to, and shall pay,
protect, indemnify and save harmless, to the extent permitted by law, all
Indemnified Parties from and against, any and all liabilities, losses, damages,
costs, expenses (including reasonable attorneys' fees and expenses), causes of
action, suits, claims, demands or judgments of any nature arising from (a)
injury to or death of any person, or damage to or loss of property, occurring in
the Premises unless caused by the negligence or willful misconduct of Landlord
or its servants or agents, (b) violation of this Lease by Tenant, or (c) any
wrongful act or other misconduct of Tenant or its agents, contractors,
licensees, sublessees or invitees. The indemnity contained in this Section 9.5
as well as all other indemnities contained in this Lease shall survive any
expiration or earlier termination of this Lease.
Section 9.6 Landlord's Right to Enter. Tenant shall permit Landlord and its
agents to enter into the Premises at reasonable times and upon reasonable notice
(except that in emergencies no notice shall be required) to examine the
Premises, make such repairs and replacements as Landlord may elect, without
however, any obligation to do so, and show the Premises to prospective
purchasers and lenders, and, during the last year of the term, to show the
Premises to prospective tenants and to keep affixed in suitable places notices
of availability of the Premises.
Section 9.7 Personal Property at Tenant's Risk. All furnishings, fixtures,
equipment, effects and property of every kind of Tenant and of all persons
claiming by, through or under Tenant which may be on the Property, shall be at
the sole risk and hazard of Tenant and if the whole or any part thereof shall be
destroyed or damaged by fire, water or otherwise, or by the leakage or bursting
of water pipes, steam pipes, or other pipes, by theft or from any other cause,
no part of said loss or damage shall be charged to or to be borne by Landlord,
except that Landlord shall in no event be indemnified or held harmless or
exonerated from any liability to Tenant for any injury, loss, damage or
liability caused by the negligence of willful misconduct of Landlord and not
covered by Tenant's insurance to the extent prohibited by law. Tenant shall
insure Tenant's personal property.
Section 9.8 Yield Up. At the expiration of the term or earlier termination
of this Lease, Tenant shall surrender all keys to the Premises, remove all of
its trade fixtures and personal property in the Premises, remove such
installations and improvements made by Tenant as Landlord may request, unless at
the time such installations and improvements were installed, Landlord, in
response to a written request by Tenant, advises Tenant in writing that Tenant
will not be required to remove the same upon expiration or earlier termination
of the term), repair all damage caused by such removal and yield up the Premises
(including all installations and improvements made by Tenant which Landlord
shall not request Tenant to move) broom-clean and in the same good order and
repair in which Tenant is obliged to keep and maintain the
19
Premises under this Lease. Any property not so removed shall be deemed abandoned
and may be removed and disposed of by Landlord in such manner as Landlord shall
determine, and Tenant shall pay Landlord the entire cost and expense incurred by
it in effecting such removal and disposition and in making any incidental
repairs and replacements to the Premises and for use and occupancy during the
period after the expiration of the term and prior to Tenant's performance of its
obligations under this Section 9.8.
Section 9.9 Estoppel Certificate. Either party, upon request of the other
party, shall upon not less than five (5) business days' prior notice from the
requesting party, execute, acknowledge and deliver to the requesting party a
statement in writing certifying that this Lease is unmodified and in full force
and effect and that, except as stated therein, Landlord or Tenant, as the case
may be, has no knowledge of any defenses, offsets or counterclaims against the
obligations to pay the Annual Rent and Additional Rent and any other charges and
to perform its other covenants under this Lease (or, if there have been any
modifications that the same is in full force and effect as modified and stating
the modifications and, if there are any defenses, offsets or counterclaims,
setting them forth in reasonable detail), the dates to which the Annual Rent and
Additional Rent and other charges have been paid and a statement that Landlord
or Tenant, as the case may be, is not in default hereunder (or if in default,
the nature of such default, in reasonable detail). Any such statement delivered
pursuant to this Section 9.9 may be relied upon by any prospective purchaser or
mortgagee of the Building.
Section 9.10 Landlord's Expenses Re Consents. Tenant shall reimburse
Landlord promptly on demand for all reasonable legal and other expenses incurred
by Landlord in connection with all requests by Tenant for consent or approval
hereunder.
Section 9.11 Rules and Regulations. Tenant shall comply with the Rules and
Regulations attached hereto as Exhibit F and such additional reasonable rules
and regulations as may be adopted from time to time by Landlord to provide for
the beneficial operation of the Lot, Building or Additional Parking Area.
Landlord agrees that it will not seek to enforce against Tenant any Rule or
Regulation which it does not generally enforce against all other tenants in the
Building.
Section 9.12 Holding Over. Tenant shall vacate the Premises immediately
upon the expiration or sooner termination of this Lease. If Tenant retains
possession of the Premises or any part thereof after the termination of the term
without Landlord's express consent, Tenant shall pay Landlord rent at two
hundred (200%) percent the monthly rate specified in Section 1 for the time
Tenant thus remains in possession. The provisions of this Section do not exclude
Landlord's rights of re-entry or any other right hereunder, including without
limitation, the right to remove Tenant through summary proceedings for holding
over beyond the expiration of the term of this Lease.
Section 9.13 Assignment and Subletting.
(a) Tenant covenants and agrees that neither this Lease nor the term and
estate hereby granted, nor any interest herein or therein, will be assigned,
mortgaged, pledged, encumbered or otherwise transferred and that neither the
Premises nor any part thereof will be encumbered in
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any manner by reason of any act or omission on the part of Tenant, or used or
occupied or permitted to be used or occupied, by anyone other than Tenant, or
for any use or purpose other than a Permitted Use, or be sublet (which term,
without limitation, shall include granting of concessions, licenses and the
like) in whole or in part without, in each case, the express written consent of
Landlord, which consent, subject to all other provisions of this Section 9.13
shall not be unreasonably withheld or delayed. The foregoing restrictions shall
not be applicable to an assignment of this Lease or a subletting of the Premises
by Tenant to (i) a subsidiary wholly-owned by Tenant or (ii) to a controlling
corporation, the stock of which is wholly-owned by the stockholders of Tenant or
(iii) to a corporation which owns at least a fifty one (51) percent of the stock
or other equity interest in Tenant (collectively, the entities referred to in
clauses (i) through (iii) inclusive are hereinafter called "Permitted
Affiliates") or (iv) to any assignment of this Lease to the surviving entity in
any merger of Tenant into or with another entity or an assignment of this Lease
to an entity which simultaneously acquires all or substantially all of Tenant's
assets or stock so long as the surviving or acquiring entity has a net worth at
least equal to that of Tenant immediately preceding such merger or acquisition
(the entities referred to in this clause (iv) together with the permitted
Affiliates are hereinafter collectively called the "Permitted Assignees"). It
shall be a condition of the validity of any assignment, whether with the consent
of Landlord or to a Permitted Affiliate, that the assignee agree directly with
Landlord, by written instrument in form satisfactory to Landlord, to be bound by
all the obligations of Tenant hereunder including, without limitation, the
covenant against further assignment and subletting. No assignment or subletting
shall relieve Tenant from its obligations hereunder and Tenant shall remain
fully and primarily liable therefor.
(b) If this Lease be assigned, or if the Premises or any part thereof be
sublet or occupied by anyone other than Tenant, Landlord may, whether or not it
has consented to any such assignment, subletting or occupancy, at any time and
from time to time collect rent and other charges from the assignee, subtenant or
occupant, and apply the net amount collected to the rent and other charges
herein reserved, but no such assignment, subletting, occupancy or collection
shall be deemed a waiver of any breach of Section 9.13(a), or the acceptance of
the assignee, subtenant or occupant as a tenant or a release of Tenant from the
further performance by Tenant of its obligations hereunder. The consent by
Landlord to an assignment or subletting shall in no way be construed to relieve
Tenant or any successor from obtaining the express consent in writing of
Landlord to any further assignment or subletting nor shall any such consent
release, diminish or impair Tenant's continuing primary liability for
performance of this Lease. No assignment or subletting and no use of the
Premises by a subsidiary wholly-owned by Tenant or controlling corporation of
Tenant shall affect the Permitted Uses.
(c) In connection with any request by Tenant for consent to assignment or
subletting, Tenant shall first submit to Landlord in writing: (i) the name of
the proposed assignee or subtenant, (ii) such information as to its financial
responsibility and standing as Landlord may reasonably require, and (iii) all
terms and provisions upon which the proposed assignment or subletting is to be
made (including, without limitation, a copy of the proposed assignment or
sublease). Upon receipt from Tenant of such request and information, the
Landlord (if the request relates to (x) an assignment of the Lease or (y) a
sublease of more than fifty (50%) percent of the Premises or (z) a sublease
which together with all prior subleases then in effect, would include more than
fifty (50%) percent of the Premises) shall have an option (sometimes
21
hereinafter referred to as the "option" or "Take Back Option") to be exercised
in writing within thirty (30) days after its receipt from Tenant of such request
and information, if the request is to assign the Lease or to sublet all of the
Premises, to cancel or terminate this Lease, or, if the request is to sublet a
portion, of the Premises only, to cancel and terminate this Lease with respect
to such portion, in each case, as of the date set forth in Landlord's notice of
exercise of such option, which shall be not less than sixty (60) nor more than
one hundred twenty (120) days following the giving of such notice; in the event
Landlord shall exercise such option, Tenant shall surrender possession of the
entire Premises, or the portion which is the subject of the option, as the case
may be, on the date set forth in such notice in accordance with the provisions
of this Lease relating to surrender of Premises at the expiration of the Term.
If this Lease shall be cancelled as to a portion of the Premises only, Annual
Fixed Rent and Additional Rent shall thereafter be abated proportionately
according to the ratio the number of square feet of the portion of the space
surrendered bears to the size of the Premises. As Additional Rent, Tenant shall
reimburse Landlord promptly for reasonable legal and other expenses incurred by
Landlord in connection with any request by Tenant for consent to assignment or
subletting.
If Landlord shall not exercise its option pursuant to the foregoing
provisions, Landlord will not unreasonably delay or withhold its consent to the
assignment or subletting to the party referred to upon all the terms and
provisions set forth in Tenant's notice to Landlord, provided that the terms and
provisions of such assignment or subletting shall specifically make applicable
to the assignee or sublessee all of the provisions of this Section 9.13 of the
Lease so that Landlord shall have against the assignee or sublessee all rights
with respect to any further assignment or subletting which are set forth in
Section 9.13 of this Lease as amended hereby except that no such assignee or
sublessee shall have any right to further assign or sublet the Premises. If
Tenant shall deliver to Landlord a written request for a consent to an
assignment or subletting, and provided such written request shall, at the top of
the first page thereof, refer to this paragraph and state in bold type
capitalized letters that failure of Landlord to respond within fifteen (15)
business days after actual receipt by Landlord, will result in automatic
approval of the assignment or sublease in question (and provided that Tenant
also provides a copy of that letter to the management agent managing the
Building on behalf of Landlord, and Landlord) fails to respond within fifteen
business days after Landlord's actual receipt of such letter together with all
information required to be submitted by Tenant pursuant to Section 9.13(c) or
otherwise requested by Landlord, such failure to respond shall be deemed to
constitute a consent by Landlord to the assignment or subleasing for which
approval was sought (but such automatic approval shall, in no event, serve to
release the Tenant from any obligation under this Lease (whether or not such
release was sought in the request) and shall not serve to otherwise alter,
modify or amend any term, covenant or provision of the Lease or the Tenant's
obligations thereunder (whether or not included in the request) and Tenant
shall, nevertheless, be required to deliver to Landlord a fully executed
counterpart of an unconditional assignment and assumption agreement (in the case
of an assignment of the Lease) between Tenant and any such assignee and, in case
of a sublease, a conformed copy of the final sublease. Further, failure of
Landlord to respond within such fifteen business day period shall, in no event,
result in Landlord being obligated to recognize or provide non-disturbance to
any subtenant or to perform or recognize any sublease, it being agreed that
termination of the Lease shall, nevertheless, terminate any such sublease. and
Landlord shall have no obligation to observe, perform or comply with any such
22
sublease, irrespective in each case of any provision of the Tenant's request
with respect thereto. In any case, where Landlord consents, or is deemed to have
consented, to an assignment of this Lease, Landlord shall be entitled to receive
the Section 9.13 Percentage (as said term is hereinafter defined) of all amounts
(including, without limitation, any lump sum payment) received by Tenant in
connection with such assignment which payment shall be made within ten (10) days
of Tenant's receipt of any such payment. Further, in any case where Landlord
consents to a subletting, Landlord shall be entitled to receive the Section 9.13
Percentage of all Subleasing Overages (as said term is hereinafter defined). As
used herein, the term "Subleasing Overages" shall mean, for each period in
question, all amounts received by Tenant in connection with any sublease (after
deducting therefrom actual and reasonable brokers' commissions, attorneys' fees
and tenant fit-up costs paid by Tenant to third parties in connection with such
subletting, in each case, to the extent of the monthly amortized cost of such
commissions and tenant fit up costs spread equally over the original tern of the
sublease) in excess of Annual Fixed Rent and Additional Rent reserved under this
Lease for the same period attributable to the space sublet (including, without
limitation, all lump sum payments made in connection therewith). Payment of
Landlord's share of Subleasing Overages shall be made to Landlord within seven
(7) days after receipt by Tenant. Further, if an Event of Default has occurred
and so long as it is continuing under this Lease, then, in computing Subleasing
Overages, Tenant shall not be entitled to any deductions for broker's
commissions, attorney's fees or tenant fit up costs. As used herein, the term
"Section 9.13 Percentage" shall mean fifty (50%) percent except that from and
after the date an Event of Default shall occur, the term "Section 9.13
Percentage" shall mean one hundred (100%) percent. Termination of this Lease by
Landlord shall terminate all rights of Tenant to receive any Sublease Overages,
any payments under any assignment of lease or any other payments due under any
sublease, whether relating to any period prior to or after the date of such
termination.
Any such assignment or subletting shall nevertheless be subject to all the
terms and provisions of this Section 9.13 and no assignment shall be binding
upon Landlord or any of Landlord's mortgagees, unless Tenant shall deliver to
Landlord an instrument in recordable form which contains a covenant of
assumption by the assignee running to Landlord and all persons claiming by,
through or under Landlord. The failure or refusal of the assignee to execute
such instrument of assumption shall not release or discharge the assignee from
its liability as Tenant hereunder. In addition, Tenant shall furnish to Landlord
a conformed copy of any sublease effected under terms of this Section 9.13. In
no event shall the Tenant hereunder be released from its liability under this
Lease.
Landlord shall not be deemed unreasonable in refusing to approve a sublease
wherein (a) the proposed sublessee is a tenant or occupant of the Building or
any other building in the Park or (b) the Landlord is then in discussions or
negotiations with the proposed sublessee to do a direct lease with the proposed
Sublessee under the proposed sublease in any building in the Park owned by
Landlord or (c) the Landlord determines in its sole but reasonable judgment that
the proposed sublessee is not capable of performing its obligations under the
Sublease and is not financially acceptable or would alter the permitted use or
(d) the proposed sublessee is a body or an agency of the state, local or federal
government.
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Section 9.14 Overloading and Nuisance. Tenant shall not injure, overload,
deface or otherwise harm the Premises, commit any nuisance, permit the emission
of any objectionable noise, vibration or odor, make, allow or suffer any waste
or make any use of the Premises which is improper, offensive or contrary to any
law or ordinance or which will invalidate any of Landlord's insurance.
SECTION 10
Casualty or Taking
Section 10.1 Abatement of Rent. If the Premises shall be damaged by fire or
casualty or by action of public or other authority in consequence thereof,
Annual Fixed Rent and Additional Rent payable by Tenant shall xxxxx
proportionately for the period in which, by reason of such damage, there is
substantial interference with Tenant's use of the Premises, having regard to the
extent to which Tenant may be required to discontinue Tenant's use of all or a
portion of the Premises, but such abatement or reduction shall end if and when
Landlord shall have substantially restored the Premises to the condition in
which they were prior to such damage. If the Premises shall be affected by any
exercise of the power of eminent domain, Annual Fixed Rent and Additional Rent
payable by Tenant shall be justly and equitably abated and reduced according to
the nature and extent of the loss of use thereof suffered by Tenant.
Section 10.2 Landlord's Right Of Termination. If (a) the Premises or the
Building are substantially damaged by fire or other casualty or by action of
public or other authority in consequence thereof (the term "substantially
damaged" meaning damage of such a character that the same cannot, in ordinary
course, reasonably be expected to be repaired within sixty (60) days from the
time that repair work would commence), or (b) any mortgagee then holding a
mortgage on the Property, or on any interest of Landlord therein, should require
that insurance proceeds payable as a result of a casualty be applied to the
payment of the mortgage debt or (c) a material uninsured fire or other casualty
or loss to the Building should occur or (d) if any part of the Building is taken
by any exercise of the right of eminent domain or should be sold in lieu thereof
or Landlord receives compensable damage by reason of anything lawfully done in
pursuance of public or other authority, then Landlord shall have the right to
terminate this Lease (even if Landlord's entire interest in the Premises may
have been divested) by giving notice of Landlord's election so to do within 90
days after the occurrence of such casualty or the effective date of such taking,
whereupon this Lease shall terminate 30 days after the date of such notice with
the same force and effect as if such date were the date originally established
as the expiration date hereof.
Section 10.2.1 Tenant's Right of Termination. If, (a) within the last
twelve (12) months of the Term, the Premises are damaged by fire or casualty and
Tenant has not exercised the Option to Extend set forth in Section 13.13 of this
Lease and if the amount of time normally required in the ordinary course to
perform and substantially complete restoration of the damage in question, as set
forth in the Estimate (as said term is hereinafter defined), exceeds sixty (60)
days, or (b) the Premises are materially damaged by fire or casualty at any
other time during the Term and if the amount of time normally required in the
ordinary course to perform and substantially complete restoration of the damage
in question as set forth in the Estimate exceeds
24
one hundred eighty (180) days, then, in either case set forth in clauses (a) and
(b) of Section 10.2.1, Tenant shall have the right to terminate the Lease,
effective as of the date set forth in Tenant's Termination Notice (as said term
is hereinafter defined), such right to be exercise, if at all, by written notice
(the "Tenant's Termination Notice") to Landlord within fifteen (15) days after
Tenant's receipt of the Estimate. Failure to exercise such right of termination
by Tenant within such fifteen (15) day period, time being of the essence, shall
constitute a waiver of any right of Tenant to terminate on account of the
applicable fire or casualty. Any termination of this Lease by Tenant pursuant to
this Section 10.2.1 shall have the same force and effect as if such date were
the date originally established as the Expiration Date of this Lease. Landlord
shall cause a contractor selected by it to make a written estimate (the
"Estimate") of the amount of time normally required in the ordinary course to
perform and substantially complete restoration of the damage to the Premises in
question caused by any fire or casualty and a copy of such Estimate shall be
furnished to both Landlord and Tenant within sixty (60) days after the
applicable fire or casualty. If Tenant does not receive the Estimate within such
sixty (60) day period, Tenant may deliver to Landlord a written request for the
Estimate. If, on or before the date (the "Estimate Date") which is thirty (30)
days after the delivery of such written request to Landlord, Tenant has not
received the Estimate from Landlord, Tenant may terminate this Lease by written
notice to Landlord within ten (10) days after the Estimate Date and such
termination, if timely given, shall be deemed a termination of this Lease
pursuant to Section 10.2.1.
Section 10.3 Restoration. If this Lease shall not be terminated pursuant to
Section 10.2 or 10.2.1, Landlord shall thereafter use due diligence to restore
the Premises to proper condition for Tenant's use and occupation, provided that
Landlord's obligation shall be limited to the amount of insurance proceeds or
condemnation awards made available to Landlord therefor. If, for any reason,
such restoration shall not be substantially completed within eight (8) months
after the expiration of the ninety (90) day period referred to in Section 10.2
(which eight (8) month period may be extended for such periods of time as
Landlord is prevented from proceeding with or completing such restoration for
any cause described in Section 13.5 or beyond Landlord's reasonable control),
Tenant shall have the right to terminate this Lease by giving notice to Landlord
thereof within thirty (30) days after the expiration of such period (as so
extended). Upon the giving of such notice, this Lease shall cease and come to an
end without further liability or obligation on the part of either party unless,
within such thirty (30) day period, Landlord substantially completes such
restoration. Such right of termination shall be Tenant's sole and exclusive
remedy at law or in equity for Landlord's failure to complete such restoration.
Landlord shall not be liable for any inconvenience or annoyance to Tenant
or injury to the business of Tenant resulting in any way from damage from fire
or other casualty or the repair thereof. Tenant understands that Landlord will
not carry insurance of any kind on Tenant's improvements, alterations, furniture
or furnishings or on any fixtures or equipment removable by Tenant under the
provisions of this Lease, and that Landlord shall not be obligated to repair any
damage thereto or replace the same. If Tenant desires any other or additional
repairs for restoration and if Landlord consents thereto, the same shall be done
at Tenant's expense. Tenant acknowledges that Landlord shall be entitled to the
full proceeds of any insurance coverage, whether carried by Landlord or Tenant,
for damage to alterations, additions, improvements or decorations provided by
Landlord either directly or through an allowance to Tenant.
25
Section 10.4 Section Award. Landlord shall have and hereby reserves and
excepts, and Tenant hereby grants and assigns to Landlord, all rights to recover
for damages to the Property and the leasehold interest hereby created, and to
compensation accrued or hereafter to accrue by reason of any taking by exercise
of the power of eminent domain or any sale in lieu thereof or by reason of
anything done in pursuance of public or other authority, and by way of
confirming the foregoing, Tenant hereby grants and assigns, and covenants with
Landlord to grant and assign to Landlord, all rights to such damages or
compensation. Nothing contained herein shall be construed to prevent Tenant from
prosecuting in any separate condemnation proceedings a claim for the value of
any of Tenant's Removable Property installed in the Premises by Tenant at
Tenant's expense and for relocation expenses; provided, that such action shall
not affect the amount of compensation otherwise recoverable by Landlord from the
taking authority and shall be prosecuted in a proceeding separate and apart from
Landlord.
Section 10.5 Temporary Taking. In the event of taking of the Premises or
Property or any part thereof for temporary use by the exercise of any
governmental power, (i) this Lease shall be and remain unaffected thereby and
rent shall not xxxxx, and (ii) Tenant shall be entitled to receive for itself
such portion or portions of any award made for such use with respect to the
period of the taking which is within the Term, provided that if such taking
shall remain in force at the expiration or earlier termination of this Lease,
Tenant shall then pay to Landlord a sum equal to the reasonable cost of
performing Tenant's obligations under this Lease with respect to surrender of
the Premises and upon such payment shall be excused from such obligations.
Section 10.6 No Liability On Account Of Injury To Business, Etc. Landlord
shall not be liable for any inconvenience or annoyance to Tenant or injury to
the business of Tenant or resulting in any way from damage from fire or other
casualty or the repair thereof and Tenant understands and agrees that Landlord
shall in no event be responsible for the repair or replacement of any furniture
or furnishings or any fixtures or equipment removable by Tenant under the
provisions of this Lease. If Tenant desires any other or additional repairs or
restoration and if Landlord consents thereto, the same shall be done at Tenant's
expense. Tenant acknowledges that Landlord shall be entitled to the full
proceeds of any insurance coverage whether carried by Landlord or Tenant, for
damage to the Premises and any alterations or improvements thereto. Upon any
expiration or earlier termination of this Lease, any insurance proceeds not
theretofore applied to the cost of restoration shall be paid to Landlord. Tenant
acknowledges that the fire and extended coverage insurance carried by Landlord
shall not extend to Tenant's personal property, including inventory, trade
fixtures, floor coverings, furniture and other property removable by Tenant and
that Tenant shall be responsible for carrying all risk insurance on all such
personal property, trade fixtures, floor coverings, furniture and other property
removable by it.
SECTION 11
Default
Section 11.1 Event of Default.
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If any of the following (each being hereafter an "Event of Default" or a
"Default of Tenant") shall occur:
(a) Tenant shall default in the performance of any of its obligations
to pay the Annual Fixed Rent, Additional Rent or any other sum payable hereunder
and if such default shall continue for ten (10) days after notice from Landlord
designating such default;
(b) if within thirty (30) days after notice from Landlord to Tenant
specifying any other default or defaults Tenant has not commenced diligently to
correct the default or defaults so specified or has not thereafter diligently
pursued such' correction to completion;
(c) if any assignment for the benefit of creditors shall be made by
Tenant;
(d) if Tenant's leasehold interest shall be taken on execution or
other process of law in any action against Tenant;
(e) if a lien or other involuntary encumbrance is filed against
Tenant's leasehold interest, and is not discharged within ten (10) days
thereafter;
(f) if a petition is filed by Tenant or Guarantor for liquidation, or
for reorganization or an arrangement or any other relief under any provision of
the Bankruptcy Code as then in force and effect; or
(g) if an involuntary petition under any of the provisions of said
Bankruptcy Code is filed against Tenant or Guarantor and such involuntary
petition is not dismissed within thirty (30) days thereafter,
then, and in any of such cases, Landlord and the agents and servants of Landlord
lawfully may, in addition to and not in derogation of any remedies for any
preceding breach of covenant, immediately or at any time thereafter and without
demand or notice and with or without process of law (forcibly, if necessary)
enter into and upon the Premises or any part thereof in the name of the whole,
or mail a notice of termination of this Lease addressed to Tenant, and repossess
the same as of Landlord's former estate and expel Tenant and those claiming
through or under Tenant and remove its and their effects without being deemed
guilty of any manner of trespass and without prejudice to any remedies which
might otherwise be used for arrears of rent or prior breach of covenant, and
upon such entry or mailing as aforesaid this Lease shall terminate, Tenant
hereby waiving all statutory rights (including, without limitation, rights of
redemption, if any) to the extent such rights may be lawfully waived. Landlord,
without notice to Tenant, may store Tenant's effects, and those of any person
claiming through or under Tenant at the expense and risk of Tenant, and, if
Landlord so elects, may sell such effects at public auction or private sale and
apply the net proceeds to the payment of all sums due to Landlord from Tenant,
if any, and pay over the balance, if any, to Tenant. Notwithstanding any such
termination, Tenant shall remain liable to Landlord as hereafter provided.
Section 11.2 Remedies. In the event that this Lease is terminated under any
of the provisions contained in Section 11.1, Tenant shall pay forthwith to
Landlord, as compensation, the excess of the total rent reserved for the residue
of the term over the fair market rental value of
27
the Premises for the residue of the term discounted to a present value using a
present value discount rate of four (4%) percent per annum. In calculating the
rent reserved there shall be included, in addition to the Annual Rent and
Additional Rent, the value of all other considerations agreed to be paid or
performed by Tenant during the residue. As additional and cumulative obligations
after any such termination, Tenant shall also pay punctually to Landlord all the
sums and shall perform all the obligations which Tenant covenants in this Lease
to pay and to perform in the same manner and to the same extent and at the same
time as if this Lease had not been terminated. In calculating the amounts to be
paid by Tenant pursuant to the preceding sentence, Tenant shall be credited with
any amount paid to Landlord pursuant to the first sentence of this Section 11.2
and also with the net proceeds of any rent obtained by Landlord by reletting the
Premises, after deducting all Landlord's reasonable expenses in connection with
such reletting, including, without limitation, all repossession costs, brokerage
commissions, fees for legal services and expenses of preparing the Premises for
such reletting, it being agreed by Tenant that Landlord may (i) relet the
Premises or any part or parts thereof for a term or terms which may at
Landlord's option be equal to or less than or exceed the period which would
otherwise have constituted the balance of the term hereof and may grant such
concessions and free rent as Landlord in its reasonable judgment considers
advisable or necessary to relet the same and (ii) make such alterations, repairs
and decorations in the Premises as Landlord in its reasonable judgment considers
advisable or necessary to relet the same, and no action of Landlord in
accordance with the foregoing or failure to relet or to collect rent under
reletting shall operate or be construed to release or reduce Tenant's liability
as aforesaid.
Section 11.3 Remedies Cumulative. Except as otherwise expressly provided
herein, any and all rights and remedies which Landlord may have under this Lease
and at law and equity shall be cumulative and shall not be deemed inconsistent
with each other, and any two or more of all such rights and remedies may be
exercised at the same time to the greatest extent permitted by law.
Section 11.4 Landlord's Right to Cure Defaults. At any time following ten
(10) days' prior notice to Tenant (except in cases of emergency when no notice
shall be required), Landlord may (but shall not be obligated to) cure any
default by Tenant under this Lease, and whenever Landlord so elects, all costs
and expenses incurred by Landlord, including reasonable attorneys' fees, in
curing a default shall be paid by Tenant to Landlord as Additional Rent on
demand, together with interest thereon at the rate provided in Section 11.7 from
the date of payment by Landlord to the date of payment by Tenant.
Section 11.5 Effect of Waivers of Default. Any consent or permission by
Landlord to any act or omission which otherwise would be a breach of any
covenant or condition herein, or any waiver by Landlord of the breach of any
covenant or condition herein, shall not in any way be held or construed (unless
expressly so declared) to operate so as to impair the continuing obligation of
any covenant or condition herein, or otherwise operate to permit the same or
similar acts or omissions except as to the specific instance. The failure of
Landlord to seek redress for violation of, or to insist upon the strict
performance of, any covenant or condition of this Lease shall not be deemed a
waiver of such violation nor prevent a subsequent act, which would have
originally constituted a violation, from having all the force and effect of an
original violation. The receipt by Landlord of rent with knowledge of the breach
of any covenant of this Lease shall
28
not be deemed to have been a waiver of such breach by Landlord or of any of
Landlord's remedies on account thereof, including its right of termination for
such default.
Section 11.6 No Accord and Satisfaction. No acceptance by Landlord of a
lesser sum than the Annual Rent, Additional Rent or any other sum then due shall
be deemed to be other than on account of the earliest installment of such rent
or charge due, unless Landlord elects by notice to Tenant to credit such sum
against the most recent installment due. Any endorsement or statement on any
check or any letter accompanying any check or payment as rent or other charge
shall not be deemed an accord and satisfaction, and Landlord may accept such
check or payment without prejudice to Landlord's right to recover the balance of
such installment or pursue any other remedy under this Lease or otherwise.
Section 11.7 Interest on Overdue Sums. If Tenant fails to pay Annual Rent,
Additional Rent or other sums payable by Tenant to Landlord within ten (10) days
of the due date thereof (i.e., the due date disregarding any requirement of
notice from Landlord), the amount so unpaid shall bear interest at a variable
rate (the "Delinquency Rate") equal to four percent (4%) in excess of the base
rate (prime rate) of Fleet Bank of Boston (or such other financial institution
in Boston not designated by Landlord) from time to time in effect commencing
with the eleventh (11th) day after the due date and continuing through the day
on which payment of such delinquent payment with interest thereon is paid. If
such rate is in excess of any maximum interest rate permissible under applicable
law, the Delinquency Rate shall be the maximum interest rate permissible under
applicable law.
Section 11.8 Cost and Expenses. All costs and expenses incurred by or on
behalf of Landlord (including, without limitation, attorneys' fees and expenses)
in enforcing its rights hereunder or occasioned by any default of Tenant shall
be paid by Tenant.
SECTION 12
Mortgages
Section 12.1 Rights of Mortgage Holders. No Annual Rent, Additional Rent or
any other charge which is paid more than one month prior to the due date thereof
and payments made in violation of this provision shall (except to the extent
that such payments are actually received by a mortgagee in possession or in the
process of foreclosing its mortgage) be a nullity as against such mortgagee and
Tenant shall be liable for the amount of such payments to such mortgagee.
In the event of any act or omission by Landlord which would give Tenant the
right to terminate this Lease or to claim a partial or total eviction, Tenant
shall not exercise any such right (a) until it shall have given notice, in the
manner provided in Section 13.1, of such act or omission to the holder of any
mortgage encumbering the Premises whose name and address shall have been
furnished to Tenant in writing, at the last address so furnished, and (b) until
a reasonable period of time for remedying such act or omission shall have
elapsed following the giving of such notice, provided that following the giving
of such notice, Landlord or such holder shall, with reasonable diligence, have
commenced and continued to remedy such act or omission or to cause the same to
be rendered.
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In the event any proceedings are brought for the foreclosure of, or in the
event of exercise of the power of sale under, any mortgage now or hereafter
encumbering the Premises, Tenant shall attorn to the purchaser upon such
foreclosure or sale or upon any grant of a deed in lieu of foreclosure and
recognize such purchaser as Landlord under this Lease.
Section 12.2 Lease Subordinate. At Landlord's election, this Lease shall be
subject and subordinate to any mortgage now or hereafter on the Lot or Building,
or both, which are separately and together hereinafter in this Section 12.2
referred to as "the mortgaged premises", and to each advance made or hereafter
to be made under any mortgage, and to all renewals, modifications,
consolidations, replacements and extensions thereof and all substitutions
therefor. This Section 12.2 shall be self-operative and no further instrument of
subordination shall be required. In confirmation of such subordination, Tenant
shall execute and deliver promptly any certificate that Landlord or any
mortgagee may request. In the event that any mortgagee or its respective
successor in title shall succeed to the interest of Landlord, then, at the
option of such mortgagee or successor, this Lease shall nevertheless continue in
full force and effect and Tenant shall and does hereby agree to attorn to such
mortgagee or successor and to recognize such mortgagee or successor as its
Landlord. The word "mortgagee" as used in this Lease shall include the holder
for the time being whenever the context permits.
SECTION 13
Miscellaneous Provisions
Section 13.1 Notices from One Party to the Other. All notices required or
permitted hereunder shall be in writing and addressed, if to Tenant, at the
Original Address of Tenant or such other address as Tenant shall have last
designated by notice in writing to Landlord and, if to Landlord, at the Original
Address of Landlord or such other address as Landlord shall have last designated
by notice in writing to Tenant. Any notice shall be deemed duly given when
delivered or tendered for delivery at such address.
Section 13.2 Lease Not to be Recorded; Notice of Lease. Tenant agrees that
it will not record this Lease. If the term of this Lease, including options,
exceeds seven years, Landlord and Tenant agree that, on the request of either,
they will enter and record a notice of lease in form reasonably acceptable to
Landlord.
Section 13.3 Bind and Inure; Limitation of Landlord's Liability. The
obligations of this Lease shall run with the land, and this Lease shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns. No owner of the Premises shall be liable under this
Lease except for breaches of Landlord's obligations occurring while owner of the
Premises. The obligations of Landlord shall be binding upon the assets of
Landlord which comprise the Premises but not upon other assets of Landlord. No
individual partner, trustee, stockholder, officer, director, employee or
beneficiary of Landlord shall be personally liable under this Lease and Tenant
shall look solely to Landlords interest in the Premises in pursuit of its
remedies upon an event of default hereunder, and the general assets of Landlord
and its partners, trustees, stockholders, officers, employees or beneficiaries
of Landlord shall not be
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subject to levy, execution or other enforcement procedure for the satisfaction
of the remedies of Tenant.
Section 13.4 Acts of God. In any case where either party hereto is required
to do any act, delays caused by or resulting from acts of God, war, civil
commotion, fire, flood or other casualty, labor difficulties, shortages of
labor, materials or equipment, government regulations, unusually severe weather,
or other causes beyond such party's reasonable control shall not be counted in
determining the time during which work shall be completed, whether such time be
designated by a fixed date, a fixed time or a "reasonable time", and such time
shall be deemed to be extended by the period of such delay.
Section 13.5 Landlord's Default. Landlord shall not be deemed to be in
default in the performance of any of its obligations hereunder unless it shall
fail to perform such obligations and unless within thirty (30) days after notice
from Tenant to Landlord specifying such default Landlord has not commenced
diligently to correct the default so specified or has not thereafter diligently
pursued such correction to completion. Tenant shall have no right, for any
default by Landlord, to offset or counterclaim against any rent due hereunder.
Section 13.6 Brokerage. Tenant and Landlord warrant and represent to the
other that neither has had any dealings with any broker or agent in connection
with this Lease. Tenant and Landlord agree to defend with counsel reasonably
approved by the other, hold harmless and indemnify the other from and against
any and all cost, expense or liability for any compensation, commissions and
charges which may be asserted against the other as a result of the other's
breach of this warranty (including reasonable legal fees).
Section 13.7 Miscellaneous. This Lease shall be governed by and construed
in accordance with the laws of the Commonwealth of Massachusetts. There are no
prior oral or written agreements between Landlord and Tenant affecting this
Lease.
Section 13.8 Security Deposit/Letter of Credit. Tenant shall deposit with
Landlord a Letter of Credit in the amount of the Security Deposit and form
hereafter described (the "Letter of Credit") to be held and, as applicable,
presented and drawn upon and the proceeds thereof retained and applied by
Landlord as security for the faithful payment, performance and observance by
Tenant of the terms, covenants, provisions, conditions and agreements of Tenant
under and pursuant to this Lease. It is agreed and understood that Landlord may
present for payment and draw upon the Letter of Credit and Landlord may use,
apply or retain the whole or any part of the amounts available to be drawn under
the Letter of Credit to the extent required for the payment of any Annual Fixed
Rent, Additional Rent or any other sum which Landlord may expend or be entitled
to the payment of by reason of any failure of Tenant to pay, perform or observe
any term, covenant, condition or provision of this Lease, including without
limitation, any late charges, interest payments or any damages or deficiency in
the re-letting of the Premises whether said damages or deficiency occurred
before or after termination of this Lease, summary proceedings or other re-entry
by Landlord.
If Landlord shall present, draw upon and apply or retain all or any portion
of the amounts evidenced by the Letter of Credit, Tenant shall immediately
replenish and reinstate the amount
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available to be drawn under the Letter of Credit or cause a substitute Letter of
Credit in the form and amount required by this Lease to be re-issued so that at
all times during the Term of this Lease, Landlord shall be entitled to draw upon
the entire dollar amount of the Letter of Credit in the amounts required
hereunder notwithstanding any prior presentation and draw thereon.
The Letter of Credit must at all times be an unconditional and irrevocable
clean commercial Letter of Credit in the amount of the Security Deposit required
by this Lease (partial drawings being permitted) and payable through a National
Bank, acceptable to Landlord in Landlord's sole discretion which, at all times,
maintains an office in Boston, Massachusetts where the Letter of Credit may be
presented for payment. In addition, the Letter of Credit shall be payable solely
to the benefit of the Landlord from time to time under this Lease and shall be
automatically renewable and, upon the direction of Landlord, transferable to and
payable for the benefit of any successor Landlord under the Lease. The Letter of
Credit (or substitutes thereof consistent with the terms hereof) shall be and
remain presentable and payable for the time period beginning on the date of this
Lease through and including the date (the "LC Return Date") which is the last to
occur of (i) the date which is 60 days after the last day of the Term of this
Lease or (ii) the date which is 60 days after the date of delivery of the entire
Premises to Landlord in accordance with the terms and provisions of this Lease
or (iii) 60 days after the last of Tenant's monetary obligations to Landlord
under this Lease have been satisfied in full (except if the only monetary
obligation to Landlord which has not been fulfilled is the final reconciliation
of Operating Cost Escalation or Real Estate Tax Escalation allocable to the
stated final Lease Year of the Original Term or any extension thereof then so
long as Tenant shall pay Landlord an amount on account thereof as estimated by
Landlord upon request of Tenant (referring to this provision then such monetary
obligation shall, for purposes of this clause (iii) only be deemed satisfied in
full). Tenant shall bear all costs and expenses in connection with procuring the
Letter of Credit and maintaining it in full force and effect for the time
periods required hereunder. In the event of a sale or other transfer of the
Building, Tenant shall, at its sole cost and expense, cause the Letter of
Credit, in the form required hereunder, to be issued to and for the benefit of
such transferee or purchaser, as designated by Landlord.
The Landlord from time to time under this Lease, shall be entitled to
receive 60 days prior written notice of any cancellation or non-renewal of the
Letter of Credit for any reason and the Letter of Credit shall not be
cancellable or be subject to non-renewal unless and until Landlord shall have
received such sixty (60) day advance written notice. Upon (i) receiving notice
of cancellation or non-renewal of the Letter of Credit or (ii) failure of Tenant
to deliver to Landlord a substitute Letter of Credit on or before the date which
is 30 days prior to any expiration or renewal date, and, in any such case,
whether or not Tenant shall then be in default in the payment, performance or
observance of any term, covenant or provision of this Lease, Landlord shall be
entitled to present, draw upon and retain the entire amount of the Letter of
Credit and upon so doing, Landlord shall be entitled to use, apply and/or retain
the proceeds of such payment (the "Non Renewal LC Proceeds") to the extent
required for the payment of any Annual Fixed Rent, Additional Rent or any other
sum which Landlord may expend or be entitled to the payment of by reason of any
failure of Tenant to pay, perform or observe any term, covenant, condition or
provision of this Lease, including without limitation, any late charges,
interest payments or any damages or deficiency in the re-letting of the Premises
whether said damages or deficiency occurred before or after termination of this
Lease, summary proceedings
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or other re-entry by Landlord. Any Non Renewal LC Proceeds which remain after
application thereof by Landlord in accordance with this Section 138 shall be
paid to Tenant after the LC Return Date upon request of Tenant.
It is agreed and understood that any failure of Tenant to perform, observe
or comply with any term of provision contained in this Section 14.13 to be
performed or observed by Tenant shall entitle Landlord to the same rights and
remedies under this Lease, as a failure by Tenant to pay Annual Fixed Rent as
and when same shall be due and payable under this Lease.
The amount of the Letter of Credit shall at all times be in the amount
specified as the Security Deposit under Section 1.1 of the Lease notwithstanding
any draws thereon by Landlord and Tenant shall replenish such Letter of Credit
to such amount upon demand by Landlord subsequent to any draw by Landlord.
Section 13.9 Leasehold Lot. It is expressly understood and agreed by and
between Landlord and Tenant that this Lease, as and to the extent that it grants
Tenant the appurtenant right to use the Leasehold Parking Area, is a sublease
and is subject and subordinate to the Ground Lease with respect to the Leasehold
Parking Area and that no right, power or privilege granted to Tenant hereunder
with respect to the Leasehold Parking Area may be exercised or enjoyed by Tenant
and no term, covenant or condition of this Lease insofar as it relates to the
Leasehold Parking Area benefiting Tenant shall be operative if and to the extent
that such exercise, enjoyment or operation would not be permitted by or would
violate or be in conflict with any term, covenant or condition of the Ground
Lease. Without limiting the generality of the foregoing, it is expressly
understood and agreed that all rights of Tenant in and to any eminent domain
awards in any way related to the Leasehold Parking Area shall be, and is hereby
expressly made, subject and subordinate to the rights of the Landlord under the
Ground Lease. Landlord covenants and agrees that Landlord will not violate any
of the terms, covenants or conditions of the Ground Lease. The cost of any and
all insurance required to be carried by Landlord under the Ground Lease or which
Landlord carries in connection with the Ground Lease shall be included in
Landlord's Operating Costs under Section 5.1 of the Lease. From and after the
Commencement Date and to the maximum extent, this agreement may be made
effective according to law, Tenant agrees to indemnify and save harmless the
Town of Framingham, as landlord under the Ground Lease (the "Ground Lease
Landlord") from and against all claims of whatever nature arising from any act,
omission or negligence of Tenant, Tenant's contractors, licensees, agents,
servants, employees or customers, or anyone claiming by, through or under Tenant
so long as Tenant or any occupant claiming under Tenant is using any part of the
Leasehold Parking Area where such accident, injury or damage results or is
claimed to have resulted from any act, omission or negligence on the part of
Tenant or Tenant's contractors, licensees, agents, servants, employees or
customers or anyone claming by, through or under Tenant. The foregoing indemnity
and hold harmless agreement shall include indemnity against all costs and
expenses and liabilities incurred in or in connection with any claim or
proceeding brought thereon and the defense thereof with counsel acceptable to
the Ground Lease Landlord. To the maximum extent, this agreement may be made
effective according to law, Tenant agrees to use and occupy the part of the
entire Leasehold Parking Area which the Tenant is permitted to use hereunder at
Tenant's own risk and the terms of the Ground Lease and
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Landlord shall have no responsibility or liability for any loss or damage to
fixtures or other personal property of Tenant or any person claiming by, through
or under Tenant.
Section 13.10 Americans With Disabilities Act. Tenant represents and
covenants that it shall conduct its occupancy and use of the Premises in
accordance with the ADA (including, but not limited to modifying its policies,
practices and procedures, and providing auxiliary aids and services to disabled
persons) provided that Tenant shall have no obligation to make any improvements
to the Premises to make the same comply with the ADA, except as hereafter
provided. Tenant covenants and agrees that any and all future alterations or
improvements (including the Tenant's TI Work) made by Tenant to the Premises
shall comply with the ADA and Tenant shall make such alterations or improvements
to the Premises which may trigger ADA compliance due to alterations or
improvements made to the Premises by Tenant. If the Premises do not comply with
the ADA as of the Commencement Date, Landlord shall perform the alterations
necessary to bring the Premises into compliance with the ADA as in effect as of
the Commencement Date (excluding any of the Tenant's TI Work).
Section 13.11 Hazardous Materials. Tenant shall not (either with or without
negligence) cause or permit the escape, disposal, release or threat of release
of any biologically or chemically active or other Hazardous Materials (as said
term is hereafter defined) on, in, upon or under the Property or the Premises.
Tenant shall not allow the generation, storage, use or disposal of such
Hazardous Materials in any manner not sanctioned by law or by the highest
standards prevailing in the industry for the generation, storage, use and
disposal of such Hazardous Materials, nor allow to be brought into the Property
any such Hazardous Materials except for use in the ordinary course of Tenant's
business, and then only after written notice is given to Landlord of the
identity of such Hazardous Materials. If any lender or governmental agency shall
ever require testing to ascertain whether or not there has been any release of
Hazardous Materials, then the reasonable costs thereof shall be reimbursed by
Tenant to Landlord upon demand as additional charges but only if such
requirement applies to the Premises or may be the result of the acts or
omissions of Tenant. In addition, Tenant shall execute affidavits,
representations and the like, from time to time, at Landlord's request
concerning Tenant's best knowledge and belief regarding the presence of
Hazardous Materials on the Premises.
The Tenant shall, at its own expense, remove, clean up, remedy and dispose
of (in compliance with all applicable laws, rules and regulations) all Hazardous
Materials generated or released by the Tenant or its officers, directors,
employees, contractors, servants, invitees, agents or any other person acting
under Tenant during the Term of this Lease (or during such time as the Tenant is
in occupancy or possession of any part of the Premises, the Building or the
Property) at or from the Premises, the Building or the Property in compliance
with all Environmental Laws (as said term is hereafter defined) and further,
shall remove, clean up, remedy and dispose of all Hazardous Materials located
at, upon, under, within or in the Premises, the Building or the Property
generated by or resulting from its operations, activities or processes during
the term of this Lease (or such other periods of time as the Tenant may be in
occupancy or in possession of the Premises or any portion of the Property or
Building), in compliance with all Environmental Laws. In performing its
obligations hereunder, the Tenant shall use best efforts to avoid interference
with the use and enjoyment of the Building and the Property by other tenants and
occupants thereof. The provisions hereof shall survive expiration or
34
termination of this Lease. Tenant hereby agrees to defend, indemnify and hold
Landlord harmless from and against any and all loss, cost, damages, claim or
expense (including legal fees) incurred by Landlord in connection with or
arising out of or relating in any way to the presence of Hazardous Materials in
or about the Premises, Building or Lot where the presence of Hazardous Materials
is the result of the acts or omissions of Tenant or Tenant's agents, servants,
employees or contractors. Landlord hereby agrees to defend, indemnify and hold
Tenant harmless from and against any and all loss, cost, damages, claim or
expense (including legal fees) incurred by Tenant in connection with or arising
out of or relating in any way to the presence of Hazardous Materials in or about
the Premises, Building or Lot unless such presence of Hazardous Materials is the
result of the acts or omissions of Tenant or Tenant's agents, servants,
employees or contractors.
In addition to the requirements set forth above, the Tenant shall, within
ten (10) days of receipt, provide to the Landlord copies of any inspection or
other reports, correspondence, documentation, orders, citations, notices,
directives, or suits from or by any governmental authority or insurer regarding
non-compliance with or potential or actual violation of Environmental Laws. The
Landlord hereby expressly reserves the right to enter the Premises and all other
portions of the Building and the Property in order to perform inspections and
testing of the air, soil and ground water for the presence or existence of
Hazardous Materials.
As used herein, the term "Hazardous Materials" shall mean and include,
without limitation, any material or substance which is (i) petroleum, (ii)
asbestos, (iii) designated as a "hazardous substance" pursuant to Section 311 of
the Federal Water Pollution Control Act, 33 U.S.C. SS 1251 et seq. (33 U.S.C. SS
1321) or listed in SS 307 of the Federal Water Pollution Control Act (33 U.S.C.
SS 1317), (iv) defined as a "hazardous waste" pursuant to Section 1004 of the
Resource Conservation and Recovery Act, 42 U.S.C. SS 6901 et seq. (42 U.S.C. SS
6903), (v) defined as a "hazardous substance" pursuant to Section 101 of the
Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C.
SS 9601 et seq. (42 U.S.C. SS 9601), as amended and regulations promulgated
thereunder, or (vi) defined as "oil" or a "hazardous waste", a "hazardous
substance", a "hazardous material" or a "toxic material" under any other law,
rule or regulation applicable to the Property, including, without limitation,
Chapter 21E of the Massachusetts General Laws, as amended and the regulations
promulgated thereunder. As used herein, the term "Environmental Laws" shall
mean, without limitation, each and every law, rule, order, statute or regulation
described above in this Section, together with (i) any amendments thereto, or
regulations promulgated thereunder and (ii) any other laws pertaining to the
protection of the environment or governing the use, release, storage, generation
or disposal of Hazardous Materials, whether now existing or hereafter enacted or
promulgated.
Section 13.12 Substitute Space. Intentionally Omitted.
Section 13.13 Option to Extend. Tenant shall have the right and option,
which said option and right shall not be severed from this Lease or separately
assigned, mortgaged or transferred, to extend the Original Term for one (1)
additional consecutive period of five (5) years (hereinafter referred to as the
"Extension Period"), provided that (a) Tenant shall give Landlord notice of
Tenant's exercise of such option at least twelve (12) months prior to the
expiration of the Original Term (but such notice may not be given sooner than
fifteen (15)
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months prior to expiration of the Original Term), (b) no Event of Default shall
exist at the time of giving the applicable notice and the commencement of the
Extension Period and (c) there has been no assignment of this Lease (except to a
Permitted Assignee) and no subletting of more than twenty five (25%) of the
Premises (exclusive of subleases to Permitted Affiliates). Except for the amount
of Annual Fixed Rent (which is to be determined as hereinafter provided), all
the terms, covenants, conditions, provisions and agreements in the Lease
contained shall be applicable to the additional period through which the Term of
this Lease shall be extended as aforesaid, provided, however, (i) there shall be
no further options to extend the Term, (ii) Landlord shall not be obligated to
make or pay for any improvements to the Premises nor pay or provide any
inducement payments of any kind or nature and (iii) there shall be no free rent
(or reduced rent) period. If Tenant shall give notice of its exercise of such
option to extend in the manner and within the time period provided aforesaid,
the Term of this Lease shall be extended upon the giving of each such notice
without the requirement of any further attention on the part of either Landlord
or Tenant except as may be required in order to determine Annual Fixed Rent as
hereafter set forth. Landlord hereby reserves the right, exercisable by Landlord
in its sole discretion, to waive (in writing) any condition precedent set forth
in clauses (a), (b) or (c) above.
If Tenant shall fail to give timely notice of the exercise of such option
as aforesaid, Tenant shall have no right to extend the Term of this Lease, time
being of the essence of the foregoing provisions. Any termination of this Lease
Agreement shall terminate the rights hereby granted Tenant.
The Annual Fixed Rent payable for each twelve (12) month period during the
Extension Period shall be the Fair Market Rental Value (as said term is
hereinafter defined) as of commencement of the Extension Period but in no event
less than the Annual Fixed Rent per annum payable for and with respect to the
last 12 calendar months of the Original Term. "Fair Market Rental Value" shall
be computed as of the beginning of the Extension Period at the then current
annual rental charges, including provisions for subsequent increases and other
adjustments, for comparable space in the Park and comparable space in comparable
office buildings in comparable office parks in Framingham, Massachusetts. In
determining Fair Market Rental Value, the following factors, among others, shall
be taken into account and given effect: size of the premises, escalation charges
then payable under the Lease, location of the premises, location of the
building, allowances or lack of allowances (if any) and lease term. In no event
shall the Annual Fixed Rent payable with respect to any Lease Year during the
Extension Period be less than the Annual Fixed Rent payable during the last 12
calendar months of the Original Term.
Landlord shall initially designate the Fair Market Rental Value. If Tenant
disagrees with Landlord's designation of the Fair Market Rental Value, Tenant
shall have the right, by written notice given to Landlord within thirty (30)
days after Tenant has been notified of Landlord's designation, to submit such
Fair Market Rental Value to arbitration as follows: Fair Market Rental Value
shall be determined by agreement between Landlord and Tenant but if Landlord and
Tenant are unable to agree upon the Fair Market Rental Value at least seven (7)
months prior to the date upon which the Fair Market Rental Value is to take
effect, then the Fair Market Rental Value shall be determined by appraisal as
follows: The Landlord and Tenant shall each appoint a Qualified Appraiser (as
said term is hereinafter defined) at least six (6) months prior to
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the commencement of the period for which Fair Market Rental Value is to be
determined and shall designate the Qualified Appraiser so appointed by notice to
the other party. The two appraisers so appointed shall meet within ten (10) days
after both appraisers are designated in an attempt to agree upon the Fair Market
Rental Value for the applicable Extension Period and if, within fifteen (15)
days after both appraisers are designated, the two appraisers do not agree upon
the Fair Market Rental Value, then each appraiser shall, not later than thirty
(30) days after both appraisers have been chosen, deliver a written report to
both the Landlord and Tenant setting forth the Fair Market Rental Value as
determined by each such appraiser taking into account the factors set forth in
this Section 13.13. If the lower of the two determinations of Fair Market Rental
Value as determined by such two appraisers is equal to or greater than 95% of
the higher of the Fair Market Rental Value as determined by such two appraisers,
the Fair Market Rental Value shall be deemed to be the average of such Fair
Market Rental Value as set forth in such two determinations. If the lower
determination of Fair Market Rental Value is less than 95% of the higher
determination of Fair Market Rental Value, the two appraisers shall promptly
appoint a third Qualified Appraiser and shall designate such third Qualified
Appraiser by notice to Landlord and Tenant. The cost and expenses of each
appraiser appointed separately by Tenant and Landlord shall be borne by the
party who appointed the appraiser. The cost and expenses of the third appraiser
shall be shared equally by Tenant and Landlord. If the two appraisers cannot
agree on the identity of the third Qualified Appraiser at least five (5) months
prior to commencement of the period for which Fair Market Rental Value is to be
determined, then the third Qualified Appraiser shall be appointed by the
American Arbitration Association ("AAA") sitting in Boston, Massachusetts and
acting in accordance with its rules and regulations. The costs and expenses of
the AAA proceeding shall be borne equally by the Landlord and Tenant. The third
appraiser shall promptly make its own independent determination of Fair Market
Rental Value for the Premises taking into account the factors set forth in this
Section 13.13 and shall promptly notify Landlord and Tenant of his
determination. If the determinations of the Fair Market Rental Value of any two
of the appraisers shall be identical in amount, said amount shall be deemed to
be the Fair Market Rental Value for the Premises. If the determinations of all
three appraisers shall be different in amount, the average of the two nearest in
amount shall be deemed the Fair Market Rental Value. The Fair Market Rental
Value of the subject space determined in accordance with the provisions of this
Section shall be binding and conclusive on Tenant and Landlord. As indicated
above, in no event shall the Fair Market Rental Value be less than the Annual
Fixed Rent applicable to the 12 calendar month period immediately preceding the
commencement of the Extension Period. As used herein, the term "Qualified
Appraiser" shall mean any disinterested person (a) who is employed by an
appraisal firm of recognized competence in the greater Boston area, (b) who has
not less than ten (10) years experience in appraising and valuing properties of
the general location, type and character as the Premises, and (c) who is either
a Senior Real Property Appraiser of the Society of Real Estate Appraisers or a
member of the Appraisal Institute (or any successor organization).
Notwithstanding the foregoing, if either party shall fail to appoint its
appraiser within the period specified above (such party referred to hereinafter
as the "Failing Party"), the other party may serve notice on the Failing Party
requiring the Failing Party to appoint its appraiser within ten (10) days of the
giving of such notice and if the Failing Party shall not respond by appointment
of its appraiser within said ten (10) day period, then the appraiser appointed
by the other party shall be the sole appraiser whose determination of Fair
Market Rental Value shall be binding and conclusive upon
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Tenant and Landlord. If, for any reason, Fair Market Rental Value shall not have
been determined by the time of commencement of the Extension Period and until
such rent is determined, Tenant shall pay Annual Fixed Rent during the Extension
Period in an amount (the "Interim Rent") as specified by Landlord's appraiser
and upon receipt of a final determination of Fair Market Rental Value as
hereinabove set forth, any overpayment or underpayment of Interim Rent shall be
paid promptly to the party entitled to receive the same.
Section 13.14 Financial Statements. Within one hundred twenty (120) days
after the end of each fiscal year of Tenant, Tenant shall furnish to Landlord a
balance sheet and income statement, each prepared in accordance with generally
accepted accounting principles consistently applied. Such financial information
shall be certified to Landlord by Tenant's chief financial officer and, in
addition, if any such reports are certified by an independent public accounting
firm, such reports together with said certification shall likewise be provided
to Landlord at the same time.
Section 13.15 Termination of Prior Lease. Landlord and Tenant agree that
the Prior Lease (as said term is hereinafter defined) shall expire on the
Commencement Date of this Lease as if the Commencement Date were the original
expiration date of the term of the Prior Lease. As used herein, the term "Prior
Lease" shall mean that certain Sublease (the "Sublease") dated as of March 29,
2002 by and between Eprise Corporation ("Eprise"), as sublandlord, and Tenant,
as subtenant, as affected by that certain Consent To Sublease (the "Consent")
between Eprise, Tenant and Landlord dated as of April 4, 2002 and as further
affected by that certain letter agreement dated July 28, 2003 (and also dated as
of July 15, 2003) between Landlord and Tenant establishing the Sublease as a
direct lease between Landlord and Tenant.
Section 13.16 Building Sign. Subject to the conditions and limitations set
forth in this Section 13.16, Tenant shall have the non-exclusive right in common
with others from time to time entitled thereto, at Tenant's sole cost and
expense, to attach a sign identifying Tenant (in the form of Tenant's name or
initials and its logo) to one exterior facade of the Building selected by Tenant
provided that (i) the size, composition, style and location of such sign and the
manner of attachment thereof to the Building have first been approved by
Landlord, which approval shall not be unreasonably withheld or delayed, (ii) all
permits and approvals from any and all applicable governmental authorities
(including, without limitation, the Town of Framingham, Massachusetts and any
and all building inspectors, special permit granting authorities, boards of
appeal and other governmental authorities in the Town of Framingham) shall first
have been obtained prior to the installation or affixing of any such sign upon
the Building, and Landlord agrees to use reasonable efforts (not requiring
expenditure of any money or incurring of obligations or liabilities) to, upon
request of Tenant, assist Tenant in obtaining such permits and approvals, and
(iii) once erected, Tenant shall not be permitted to relocate such signage
elsewhere on the Building. Tenant shall be responsible for the purchase,
installation, maintenance, repair, removal and permitting of such sign, all at
Tenant's sole cost and expense. Tenant shall not affix any such sign to the
Building except pursuant to plans and specifications and in accordance with
construction procedures, in each case, first approved by Landlord, which
approval will not be unreasonably withheld or delayed and Tenant shall be
responsible for the cost of repairing any damage to the Building caused by the
installation, maintenance or removal of any such sign from the Building. Tenant
shall keep any such sign in a good, clean and safe
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condition and neat and attractive appearance at all times. In addition, Tenant
will promptly, after expiration or earlier termination of this Lease, remove any
such sign from the Building and repair all damage to the Building caused
thereby. Landlord hereby reserves the right to permit other parties to place
exterior signage on any exterior facade of the Building and/or elsewhere on the
Building and/or elsewhere on the Property as determined by Landlord in its sole
and absolute discretion.
Section 13.17 Twenty Four Hour Access. Subject to all applicable terms and
conditions of this Lease, Tenant shall have a right of access to the Premises
twenty four (24) hours per day, seven (7) day per week.
[Remainder of Page Intentionally Left Blank -- Signature Page Follows]
39
WITNESS the execution hereof under seal as of the day and year first above
written.
Landlord: NDNE 9/90 000 XXXXXXXX XXXXXXXXX LLC
By: NDNE 200, Inc.
Its: Manager
By: /s/ [Illegible]
------------------------------------
Its: Exec VP
Tenant: NETEZZA CORPORATION
By: /s/ Xxxxxxx Xxxxxxxx, Xx.
------------------------------------
Its: CFO
40
