EXHIBIT 10.13
GATEWAY DEVELOPERS, LLC
OFFICE LEASE
CITY SQUARE
BOSTON (CHARLESTOWN), MASSACHUSETTS
ARTICLE SECTION CAPTION PAGE
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I. BASIC LEASE PROVISIONS 1
1.1 Introduction 1
1.2 Basic Data 1
II. DESCRIPTION OF PREMISES AND
APPURTENANT RIGHTS: TERM 3
2.1 Location of Premises; Term 3
2.2 Appurtenant Rights and Reservations 5
2.3 Parking Rights 7
III. RENT 8
3.1 Fixed Rent 8
IV. USE OF PREMISES 8
4.1 Permitted Use 8
4.2 Alterations 11
V. ASSIGNMENT AND SUBLETTING 12
5.1 Prohibition 12
VI. DELIVERY OF PREMISES AND RESPONSIBILITY
AND RESPONSIBILITY FOR REPAIRS CONDITION
OF PREMISES 14
6.1 Delivery of Possession of Premises 14
6.2 Plans and Specifications 16
6.3 Preparation of Premises 17
6.3A Landlord's Payment 19
6.3B Subtenant Completion 20
6.4 Repairs to be Made by Landlord 22
6.5 Tenant's Agreement 23
6.6 Floor Loan - Heavy Machinery 24
ARTICLE SECTION CAPTION PAGE
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VII. SERVICES TO BE FURNISHED BY LANDLORD
AND UTILITY CHARGES 24
7.1 Landlord's Services 24
7.2 Payment of Utility Charges 26
VIII. REAL ESTATE TAXES AND OTHER EXPENSES 26
8.1 Tenant's Share of Real Estate Taxes 26
8.2 Tenant's Share of Operating Expenses 29
IX. INDEMNITY AND PUBLIC LIABILITY INSURANCE 36
9.1 Tenant's Indemnity 36
9.2 Public Liability Insurance 36
9.3 Tenant's Risk 37
9.4 Injury Caused by Third Parties 37
X. LANDLORD'S ACCESS TO PREMISES 38
10.1 Landlord's Right of Access 38
10.2 Exhibition of Space to Prospective Tenants 38
XI. FIRE, EMINENT DOMAIN, ETC. 39
11.1 Damage 39
11.2 Substantial Damage 39
11.3 Rent Abatement 41
11.4 Damage to Building 41
11.5 Definition of Substantial Damage 41
11.6 Taking 41
11.7 Rent Abatement 42
11.8 Award 42
XII. LANDLORD'S REMEDIES 43
12.1 Events of Default 43
12.2 Remedies 44
12.3 Landlord's Default 46
XIII. MISCELLANEOUS PROVISIONS 46
13.1 Extra Hazardous Use 46
13.2 Waiver 47
13.3 Covenant of Quite Enjoyment 48
13.4 Notice to Mortgagee and Ground Lessor 49
13.5 Assignment of Rents 49
13.6 Mechanics' Liens 50
13.7 No Brokerage 50
13.8 Invalidity of Particular Provisions 51
13.9 Provisions Binding, Etc. 51
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ARTICLE SECTION CAPTION PAGE
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13.10 Recording 51
13.11 Notices 51
13.12 When Lease Becomes Binding 52
13.13 Paragraph Headings 52
13.14 Rights of Mortgagee/Ground Lease 52
13.15 Status Report 53
13.16 Tenant's Financial Condition 53
13.17 No Partnership 54
13.18 Holding Over 54
13.19 Non-Subrogation 54
13.20 Governing Law 54
13.21 Definition of Additional Rent 54
13.22 Extension Option 54
13.23 Right of First Offer 55
EXHIBITS A Description of Premises
B Description of Lot
C Description of Work
C-1 Landlord/Tenant Matrix
D Broker's Determination
E Parking Plan
F HVAC Specifications
G Notice of Lease
H Ground Lessor SNDA
I Cleaning Specifications
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THIS INSTRUMENT IS AN INDENTURE OF LEASE in which the Landlord and the
Tenant are the parties hereinafter named, and which relates to space in the
Building (as defined below) to be constructed in Boston (Charlestown),
Massachusetts on the lot (the "Lot") described on Exhibit "B" hereto.
The parties to this instrument hereby agree with each other as follows:
ARTICLE I
BASIC LEASE PROVISIONS
1.1 INTRODUCTION. As further supplemented in the balance of this instrument
and its Exhibits, the following sets forth the basic terms of this Lease
and, where appropriate, constitutes definitions of certain terms used in
this Lease.
1.2 BASIC DATA.
Date:
Landlord: Gateway Developers, LLC, a
Massachusetts
limited liability company
Present Mailing Address: 000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Tenant: Xxxxx, Inc.
Present Mailing Address
of Tenant: 00 Xxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Lease Term or Term: 144 calendar months (plus the partial
month, if any, immediately following the
Commencement Date as defined in
Section 6.2(e).
Target Date: August 1, 2002
Fixed Rent: For and with respect to the first
seventy-two (72) calendar months of the
term of this lease, plus the partial
month, if any, immediately succeeding the
Commencement Date at the rate of $33.00
per square foot per annum of rentable area
for the first 75,000 square feet of
rentable area and $35.00 per square foot
per annum of rentable area of the Premises
for the remainder of the Premises; and for
and with respect to the balance of the
initial term of
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this lease at the rate of $36.00 per
square foot per annum of the rentable area
of the Premises for the first 75,000
square feet of rentable area and $40.00
per square foot per annum of the rentable
area of the Premises for the remainder of
the Premises. Fixed Rent shall be payable
in monthly installments equal to 1/12th of
the annual Fixed Rent.
Use: For general office purposes only.
Description of Space:
(Herein the "Premises") See attached Exhibit A, containing
approximately 95,000 square feet of
rentable area to be determined using the
BOMA method of measurement subject to
adjustment as set forth in Article VI, not
to exceed 95,000 square feet of rentable
area.
Tenant's Tax Share: A fraction the numerator of which is the
rentable area of the Premises and the
denominator of which is the rentable area
of the Building.
Base Taxes: The Taxes (as hereinafter defined) for and
with respect to the first fiscal tax year
in which the Building is fully assessed as
a completed structure ("1st Tax Period").
Base Operating Expenses: The Operating Expenses (as hereinafter
defined) for and with respect to the first
twelve (12) calendar months of the Term of
this lease (the "Base Year"), grossed up
in accordance with Section 8.2(g).
Lot: The parcel of land described on Exhibit B
hereto.
Building: The interconnected building including the
Garage located on the Lot (the Premises
being located in each wing thereof, "Wing
One" (Xxxxx Xxxxxxxxxx Xxxxxx) and "Wing
Two" (Water Street).
Rentable Floor Area
of the Building: 168,000 rentable square feet of floor area
as determined using BOMA method of
measurement, subject to adjustment as set
forth in Article VI.
Security Deposit: N/A
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Guarantor of Tenant's
Obligations: N/A
Brokers None
ARTICLE II
DESCRIPTION OF PREMISES
AND APPURTENANT RIGHTS; TERM
2.1 LOCATION OF PREMISES; TERM. (a) Landlord hereby demises and leases to
Tenant, and Tenant hereby accepts from Landlord, the Premises identified
in the foregoing portions of this Lease for and during the Lease Term.
(a) The Lease Term shall begin on the Commencement Date as defined
in Article VI. The Lease Term shall continue for the period set
forth in Section 1.2 hereof, unless sooner terminated as
hereinafter provided, and without any right of renewal or
extension, except as expressly set forth in this Lease. After
the Commencement Date, upon the request of either party,
Landlord and Tenant shall enter unto an instrument confirming
the Commencement Date and the expiration date of the Lease.
(b) As used herein the following terms shall have the following
meanings:
For the purposes of this Lease, a "Tenant Delay" shall mean any
actual delay in the completion of Landlord's Work caused by a
Tenant Change Order (as hereinafter defined) or any act or
negligence of Tenant or its agents, employees, contractors or
invitees or any failure by Tenant to act when Tenant has a duty
so to act under the law or under the terms of this Lease,
including, without limitation, (i) any failure by Tenant to
deliver to Landlord any draft, revised or final versions of
Tenant's Plans or to take any other action required of Tenant
under this Lease within the period specified in this Lease, (ii)
in instances for which the Lease specifies no period in which
Tenant shall act, any failure by Tenant to respond to any
reasonable request for information relating to Tenant's Work or
otherwise to cooperate reasonably with Landlord, within a
reasonable time after receiving from Landlord a written request
for such information or cooperation.
For the purposes of this Lease, a "Landlord Delay" shall mean
any actual delay in the completion or commencement of the Tenant
Work caused by any act or negligence of Landlord or its agents,
employees, or contractors or any failure by Landlord to act when
Landlord has a duty so to act under the terms of this Lease,
including, without limitation, (i) any failure by Landlord to
deliver to Tenant any draft, revised or final versions of plans
to be prepared by or at the direction of Landlord hereunder or
to take any
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other action required of Landlord under this Lease within the
periods specified in this Lease, (ii) in instances for which
this Lease specifies no period in which Landlord shall act, any
failure by Landlord to respond to any reasonable request for
information relating to Tenant's Work or otherwise to cooperate
reasonably with Tenant, within a reasonable time after receiving
from Tenant a written request for such information or
cooperation, or (iii) any failure by Landlord to complete the
Landlord's Work by the Target Date (as hereinafter defined).
In the event that either party claims that the other has caused
a Landlord Delay or a Tenant Delay, as applicable, the parties
shall continue to perform their obligations hereunder in a
manner so as to avoid any further delay. Landlord and Tenant
each agree to promptly notify each other of any delay claimed by
it against the other, and to notify each other in advance of any
reasonably foreseeable delay, and the parties shall meet as soon
as reasonably possible to discuss such delay claim, or such
foreseeable delay claim, as applicable, but in no event shall
the failure to reach agreement on such delay excuse either party
from performing hereunder and waive such party's right to such
delay claim.
For purposes of this Lease, "Landlord's Force Majeure" shall
mean any actual delay due to governmental regulations, unusual
scarcity of or inability to obtain labor or materials (despite
the exercise of reasonable efforts to obtain the same), labor
difficulties fire or casualty or other causes reasonably beyond
Landlord's control.
For the purposes of this Lease, "Tenant's Force Majeure" shall
mean any actual delay due to governmental regulation, unusual
scarcity of or inability to obtain labor or materials (despite
the exercise of reasonable efforts to obtain the same), labor
difficulties, fire or casualty or other causes reasonably beyond
the Tenant's control.
Each party shall provide the other with written notice as
promptly as possible after the occurrence of a claimed Force
Majeure event hereunder and of the expected duration of the
anticipated delay, and shall also notify the other as soon as
such first party's Force Majeure event has ended, and shall use
all reasonable efforts to cure the Force Majeure event.
(c) Subject to Tenant Delay and Landlord's Force Majeure, Landlord
shall use reasonable speed and diligence in the construction of
the Building and shall use its best efforts "to deliver" the
Building and Premises to Tenant for its occupancy on or before
August 1, 2002 (the "Target Date"). The failure "to deliver" the
Premises and Building to Tenant for its occupancy by the Target
Date shall in no way affect the validity of this Lease or the
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obligations of Tenant hereunder nor shall the same be construed
in any way to extend the term of this Lease. Notwithstanding the
foregoing, if the Premises and Building shall have not been
delivered to Tenant within the meaning of Section 6.1 hereof
within thirty (30) days after the Target Date, then except as
expressly provided herein, Tenant shall not have any claim
against Landlord and Landlord shall have no liability to Tenant,
by reason thereof. If the Premises and the Building are not
deemed delivered to Tenant under Section 6.1 hereof by the
Target Date (extended to the extent of any Tenant Delay or
Landlord's Force Majeure) then as Tenant's sole right and remedy
in respect thereof, Tenant shall have, so long as Tenant is not
in default under this Lease beyond the expiration of applicable
notice and/or cure periods, a credit against the Fixed Rent
first coming due hereunder in an amount equal to one (1) day's
Fixed Rent for the Premises for each day after the Target Date
(as so extended) until such delivery has been deemed made, but
in any event such credit shall cease upon the date the Tenant
shall first open for business in the Premises. (By way of
example only, if the Premises and the Building are "delivered"
on October 1, 2002, and the Target Date was August 1, 2002,
then, following the Commencement Date, Tenant shall be entitled
to a credit equal to the daily Fixed Rent rate for the Premises
multiplied by 31, which amount Tenant may apply to the Fixed
Rent due after the Commencement Date until the balance of said
credit is equal to zero.)
If the Premises are not deemed delivered to Tenant under Section
6.1 hereof by August 1, 2003, Tenant shall have the right to
terminate this Lease by written notice to Landlord given before
the date of such delivery. If the Landlord having used
reasonable efforts to deliver the Premises is unable to deliver
the Premises by December 31, 2003 Landlord shall have the right
to terminate this Lease by written notice to Tenant given before
the date of such delivery.
2.2 APPURTENANT RIGHTS AND RESERVATIONS. Tenant shall have, as appurtenant
to the Premises, the nonexclusive right to use and to permit its
invitees to use in common with others, public or common lobbies, if any,
elevators, hallways, stairways, loading docks and loading areas, service
lifts, sanitary facilities, pipes, ducts, conduits, shafts, wires and
appurtenant equipment providing electricity, telephone, water, sewer,
telecommunications and other utilities to the Premises and equipment to
the roof and all other common areas, if any, located in the Building and
all sidewalks, access roads and driveways, located on the Lot and
serving the Building (the "Common Areas"), but such rights shall always
be subject to reasonable rules and regulations from time to time
established by Landlord by suitable notice and to the right of Landlord
to designate and change from time to time areas and facilities so to be
used, provided that any such change shall not materially interfere with
Tenant's use of, or access to, the Premises. All elevators serving Wing
One and all parking levels of the
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Garage that serve Wing One shall not be deemed part of the Premises, but
shall be for the exclusive use of Tenant and its agents, employees and
invitees. Landlord acknowledges that of the elevators in Wing One one
serves all floors of the Garage and the first floor of Wing One above
the Garage and the other two elevators serve the top floor of the Garage
and all floors of Wing One above the Garage. The lobby of Wing One shall
be deemed part of the Premises. At all times during the Term, Landlord
shall make available at least one (1) elevator serving the portion of
the Premises in Wing Two and the top level of the Garage, which elevator
shall be for the exclusive use of Tenant and its agents, employees and
invitees.
Excepted and excluded from the Premises are the roof or ceiling, the
structural floor and all perimeter walls of the Premises, except in each
case the inner surfaces thereof, but the entry doors to the Premises are
not excluded from the Premises and are a part thereof for all purposes;
and Tenant agrees that Landlord shall have the right to place in the
Premises (but in such manner as to reduce to a minimum interference with
Tenant's use of the Premises) utility lines, pipes and the like to serve
premises other than the Premises, and to replace, maintain and repair
such utility lines, pipes and the like, in, over and upon the Premises.
Notwithstanding the foregoing, Tenant's prior consent, which consent
Tenant shall not unreasonably withhold or delay, shall be required with
respect to any exhaust systems to be located within the Premises and
which are to serve restaurants located outside of the Premises. Tenant
shall have the right to place on the roof of Wing One and Wing Two,
supplementary HVAC equipment, satellite antennae and satellite dishes
which are to serve the Premises and are not to be utilized by any other
person other than the occupants of the Premises and are to be placed on
the roof in such location as shall be reasonably approved by Landlord;
provided, however, that Tenant shall have Tenant's pro-rata share of all
the roof space on Wing One and Wing Two that is made available or used
for antennae and satellite dishes or supplementary HVAC equipment for
its exclusive use. Any other antennae or satellite dishes on said roof
shall be installed thereon in such a manner so as not to interfere with
the antennae or dishes of Tenant. All antennae and satellite dishes and
supplementary HVAC equipment shall be installed so as to minimize the
visibility of such antennae or dishes or supplementary HVAC equipment
from outside the Building. All of such installation and maintenance of
such antennae, dishes and supplementary HVAC equipment shall be
performed by contractors reasonably approved by Landlord and in a manner
so as not to void any roofing warranty and Tenant shall be responsible
for any damage to the roof caused by the installation or maintenance of
the same, and at the end of the term of the Lease, the Tenant shall
remove all of such antennae, dishes and supplementary HVAC equipment
from the roof and shall repair all damage caused by the installation or
removal of the same.
Subject to reasonable rules and regulations imposed from time to time by
Landlord, the Building shall be open and access to the Premises shall be
freely
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available, subject to interruption due to causes beyond Landlord's
reasonable control, at all times. Tenant acknowledges that, in all
events, Tenant is responsible for providing security to the Premises and
its own personnel, and Tenant shall indemnify, defend with counsel
reasonably acceptable to Landlord, and save Landlord harmless from any
claim for injury to person or damage to property asserted by any
personnel, employee, guest, invitee or agent of Tenant which injury or
damage is suffered or occurs in the Premises by reason of the act of an
intruder or any other person in or the Premises.
2.3 PARKING RIGHTS. During the term hereof, Tenant shall have the right to
the daytime use (i.e. no later than 7 PM on any day) of 115 parking
spaces ("daytime parking") located within the garage serving the
Building. Such spaces may be on an assigned or unassigned basis at
Landlord's discretion and Tenant shall comply with all reasonable rules
and regulations which Landlord may impose from time to time for the
regulation of such parking (such rules and regulations shall provide,
INTER ALIA, that no towing can be made without reasonable advance
notice). In addition, without charge to Tenant, Tenant shall have the
exclusive use of 75 parking spaces in the Garage at all times. The
location of Tenant's daytime parking spaces and of such exclusive spaces
shall be as provided in the Parking Plan set forth on Exhibit E hereto.
Except as otherwise set forth in this paragraph, no parking shall be
allowed to Tenant on an overnight basis nor shall the parking rates so
allocated to Tenant be utilized by other than Tenant's officers or
employees or assigns or sublessees or invitees, and Tenant shall have no
right to assign or sublicense any of its parking rights hereunder except
to a permitted assignee of this Lease or sublesee of the Premises or to
a party providing business services to Tenant. The foregoing, however,
shall not limit Tenant from reimbursement by its employees or officers
for any or all of such charges. Landlord shall bear no liability in
respect of any vehicles (or their contents) parked in such facility and
Tenant waives all liability which Landlord may have in respect thereof,
except to the extent the same results from Landlord's negligence or
willful misconduct. As consideration for such daytime parking rights
Tenant shall pay to Landlord an amount equal to the then market charge,
as imposed by Landlord, for the daytime parking rights (the other
seventy-five of such parking rights shall be without charge). Initially
such charge shall be at the rate of $150 per parking right per month but
shall be subject to change from time to time (but not more than once
annually) by the Landlord. Such payment shall be considered to be
Additional Rent under this Lease and Tenant's failure to pay the same
shall be considered a failure in the payment of rent under this Lease.
Such payment shall be due at the same time as the monthly payments of
Fixed Rent in advance. In the event that during the Lease Term,
additional area shall be added to the Premises so that the Rentable
Floor Area of the Premises shall increase ("Expansion Space") then the
number of parking spaces available to Tenant under this section shall be
increased by two spaces for each 1,000 square feet of Rentable Floor
Area in the Expansion Space, which spaces shall be considered to be
daytime parking spaces for all purposes; provided, however, that such
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additional spaces shall be made available to Tenant only if, and to the
extent, that Landlord has such spaces available and has not committed
such spaces to other tenants or persons, but if the former tenant of the
Expansion Space had any parking spaces for its use, such parking spaces
shall be made available to Tenant. Whenever any other parking spaces
within the Garage shall become available for monthly use by other than
the tenants or occupants of the Building or their customers, Landlord
shall notify Tenant thereof and of any terms for leasing of the same.
The provisions of this Section 2.3 shall apply during the Original Lease
Term and any extension thereof.
ARTICLE III
RENT
3.1 FIXED RENT. Tenant agrees to pay to Landlord at the Present Mailing
Address of Landlord, or as directed by Landlord, without notice, demand,
off-set or deduction (except as expressly permitted hereunder), on the
Commencement Date and thereafter, monthly, in advance, on the first day
of each and every calendar month during the Lease Term, a sum equal to
the monthly Fixed Rent specified in Section 1.2 hereof; provided,
however, that the first payment of monthly Fixed Rent coming due under
this Lease shall be made on the first day of the second calendar month
of the Term of this lease and shall be made for and with respect to the
period of time from the Commencement Date of the term of this lease
through the end of said calendar month.
Fixed Rent for any partial month shall be paid by Tenant at such rate on
a pro-rata basis (based on the per diem rate of Fixed Rent multiplied by
the number of days in such partial month included in the Term) and, if
the Lease Term commences on a day other than the first day of a calendar
month, the first payment which Tenant shall make shall be a payment
equal to a proportionate part of such monthly Fixed Rent for the partial
month from the Commencement Date to the first day of the succeeding
calendar month, and the monthly Fixed Rent for such succeeding calendar
month.
ARTICLE IV
USE OF PREMISES
4.1 PERMITTED USE. Tenant agrees that the Premises shall be used and
occupied by Tenant only for the purpose specified as the use thereof in
Section 1.2 of this Lease, and for no other purpose or purposes.
Tenant further agrees to conform to the following provisions during the
entire Lease Term:
(a) Tenant shall cause all freight (including furniture, fixtures
and equipment used by Tenant in the occupancy of the Premises)
to be delivered to or
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removed from the Building and the Premises in such areas
reasonably designated by Landlord therefor and in accordance
with reasonable rules and regulations established by Landlord
therefor, the hours for such delivery to be fixed so as not to
violate the terms of the transportation access plan agreement
("TAPA") entered into by Landlord with the City of Boston;
(b) Subject to Legal Requirements and so long as Tenant leases at
least 50% of the office portions of the Building Tenant shall
have the exclusive right to install signage on the door of the
Premises and on the exterior of the Building, above the ground
floor, subject only to the exceptions set forth below. The
parties acknowledge that Xxxxxx and Xxxxxxxx ("V&C") is a
current tenant in Wing Two and that Landlord has obligated
itself to provide certain signage rights in its lease to V&C.
Tenant acknowledges that it has been informed by Landlord that
V&C has the one time option to choose the location of its
signage on the exterior of Wing Two as follows: (i) between the
first and second floor; or (ii) between the second and third
floor. Landlord shall use continuing reasonable efforts to cause
V&C (or its successors, assigns or sublessees) to select option
(i). Thereafter, V&C may install signage ("V&C Sign") only as
set forth above, which signage may not be altered during the
term of the V&C lease except to change the name to any permitted
assignee or sublessee of all or substantially all of the V&C
premises but any such changed sign shall be of a similar size
and style and shall be in lieu of the V&C sign, and signage
rights shall not transfer to any subtenant of less than
substantially all of the V&C premises or licensee, or any other
party that may acquire rights to use and occupy a portion of the
premises currently leased by V&C. Upon the expiration or earlier
termination of the V&C lease, the signage rights set forth above
shall terminate and the V&C Sign shall be promptly removed by
Landlord, at its sole cost and expense. Landlord represents that
the V&C lease has a 10 year initial term with 2-5 year options
of extension. The Landlord shall have the right to install on
the exterior of the Building in the signage band serving the
ground floor retail premises signage for the ground floor retail
tenants. Tenant shall not place on the exterior of exterior
walls (including both interior and exterior surfaces of windows
and doors) or on any part of the Building outside the Premises,
any sign, symbol, advertisement or the like visible to public
view outside of the Premises except for a sign on the door of
the Premises of the type commonly and customarily found in
first-class office buildings for the purpose of identifying and
locating the Premises and except for a sign located on the
exterior of Wing One, the size and design of which sign shall
always be subject to the prior approval of Landlord which shall
not be unreasonably withheld or delayed and to compliance with
all applicable law and regulations. Without Tenant's prior
written approval signed by an executive officer of Tenant, no
sign of any other tenant shall be located on the exterior of the
Building above the
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ground floor level, except for the V&C sign as set forth above.
Tenant will not install drapes, window blinds or other window
coverings on exterior windows except for those reasonably
approved by Landlord and in all events all such coverings shall
be of a color reasonably approved by Landlord;
(c) Tenant shall not perform any act or any practice which injures
the Premises, or any other part of the Building, or causes any
offensive odors or loud noise, or constitutes a nuisance to any
other tenant or tenants or occupants or other persons in the
Building, or be detrimental to the reputation or appearance of
the Building; Landlord shall impose a restriction to the
substance of that set forth in this subsection (c) in leases of
all other tenants in the Building and shall use reasonable
efforts to enforce such restrictions, but Landlord shall have no
liability to Tenant in respect of its failure to enforce such
restriction.
(d) At Tenant's option, Landlord shall refer to Wing One of the
Building as the "Xxxxx Building" and shall not be entitled to
change the name of Wing One during the Term and shall not name
the Building or Wing Two after another tenant. Tenant shall not
use the name of the Building directly or indirectly in
connection with Tenant's business, except as a part of Tenant's
address, and Landlord reserves the right to change the name of
the Building at any time but in no event shall the name of the
Building be changed to the name of any other tenant of the
Building or any business organization so long as Tenant leases
at least 35% of the office portion of the Building and no other
tenant leases more space in the Building;
(e) The Tenant shall not use, handle, store, release or discharge
hazardous materials, oil, or hazardous wastes in the Premises
except for small amounts of cleaning materials and other
materials normally used in office uses which might be deemed to
be hazardous materials or hazardous waste under applicable law,
provided that in its use, handling, storage, release and
discharge thereof the Tenant shall comply with all applicable
law and with the requirements of the manufacturers thereof;
(f) Within the Premises, Tenant shall comply with the Americans With
Disabilities Act (42 U.S.C. Section 12101 et seq.) and the
regulations and Accessibility Guidelines for Buildings and
Facilities issued pursuant thereto (collectively the "ADA"), to
the extent the same are applicable to the Premises; provided
that Tenant shall not be required to so comply with the ADA to
the extent that the Premises when delivered by Landlord to
Tenant were not in compliance with the ADA or where compliance
by Tenant is required as a result of any action by Landlord.
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4.2 ALTERATIONS. After initial completion of any work to be done by Tenant
as provided in Article VI, Tenant shall not alter or add to the
Premises, except in accordance with written consent from Landlord, which
Landlord agrees not unreasonably to withhold or delay as to alterations
or additions which (i) are not visible from the exterior of the Premises
and (ii) do not materially affect the structure or any mechanical,
electrical or plumbing systems of the Building. Notwithstanding the
foregoing, Landlord's prior written consent shall not be required with
respect to any non-structural, interior alterations to the Premises
which do not adversely affect the mechanical, electrical or plumbing
systems of the Building and have a cost, in each instance, of less than
$100,000, but Tenant shall notify Landlord as and when it makes any such
alterations which are permitted without Landlord's prior consent.
Tenant's work as described in Article VI and all other alterations,
changes, additions and work ("Alterations") made by Tenant shall be made
in accordance with all applicable laws, in a good and first-class
workmanlike manner and in accordance with the reasonable requirements of
Landlord's insurers and Tenant's insurers. Without limitation, said
Tenant's work as described in Article VI and all other Alterations made
by Tenant shall be performed in accordance with the provisions of this
Article IV and of Article VI. Any contractor or other person undertaking
any Alterations of the Premises on behalf of Tenant shall be covered by
Commercial General Liability and Workmen's Compensation insurance with
coverage limits reasonably acceptable to Landlord and evidence thereof
shall be furnished to Landlord prior to the performance by such
contractor or person of any work in respect of the Premises. Except for
generators and HVAC supplemental equipment which Tenant has installed at
its sole cost and expense on the roof of the Building to exclusively
serve the Premises (such installation hereby is approved but shall be
made in accordance with plans and specifications approved by Landlord
such approval not to be unreasonably withheld or delayed, and in a
manner so as not to void any roofing warranty and by contractors
reasonably approved by Landlord, and at the end of the Term of the
Lease, Tenant shall remove all of such equipment from the roof and shall
repair all damage caused by the installation or removal of the same),
all work performed by Tenant in the Premises shall remain therein and,
at termination, shall be surrendered as a part thereof, except for
Tenant's usual trade fixtures, furniture and equipment, installed prior
to or during the Lease Term at Tenant's cost, which trade fixtures,
furniture and equipment Tenant shall remove upon the termination of this
Lease. Tenant agrees to repair any and all damage to the Premises
resulting from the installation thereof or such removal or, if Landlord
so elects, to pay Landlord for the cost of any such repairs forthwith
after actual completion thereof and billing therefor.
Landlord has given Tenant notice that on or about February 8, 2002 is
(i) the date when Landlord plans to finish its construction of the roof
and to install the rubberized roofing; and (ii) the date when Landlord
plans to install the concrete filling on the roof.
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ARTICLE V
ASSIGNMENT AND SUBLETTING
5.1 PROHIBITION. Notwithstanding any other provisions of this Lease, Tenant
covenants and agrees that it will not assign this Lease or sublet (which
term, without limitation, shall include the granting of concessions,
licenses, and the like) the whole or any part of the Premises without,
in each instance, having first received the express written consent of
Landlord, which consent the Landlord agrees not to unreasonably
withhold, condition or delay, provided that the following conditions are
satisfied, all in Landlord's reasonable judgment: (a) the proposed
assignee or sublessee proposes office operations in the Premises which
are consistent with the image and quality of the Building; (b) the
proposed assignee or sublessee is not a governmental organization; (c)
the proposed assignee or sublessee has the financial capacity necessary
to carry out its obligations under this Lease or the sublease, as the
case may be; (d) the operations proposed by the assignee or sublessee
will not overload the Building's systems; and (e) any proposed
subletting shall not result in a division of the Premises into more than
two units per floor unless Tenant assumes in writing the cost and
expense to restore the Premises upon the termination of this Lease.
Landlord shall respond to any request for consent within thirty (30)
days (ten (10) business days in the case of a subletting of one (1)
floor or less), after receipt of Tenant's request for consent, and if
such request contains a reminder in bold print of the timing for
response, then if Landlord does not timely respond the consent shall be
deemed granted.
Any assignment of this Lease (which term shall include the subletting of
the whole or any part of the Premises other than as permitted hereunder
as set forth below) by Tenant without Landlord's express consent shall
be invalid, void and of no force or effect. In any case where Landlord
shall consent to such assignment or subletting, the Tenant named herein
shall remain fully liable for the obligations of Tenant hereunder,
including without limitation, the obligation to pay the Fixed Rent and
other amounts provided under this Lease. Any such request shall set
forth, in detail reasonably satisfactory to Landlord, the identification
of the major business terms upon which proposed assignment or subletting
is to be made, including, without limitation, the rent or any other
consideration to be paid in respect thereto.
It shall be a condition of the validity of any such assignment that the
assignee agrees directly with Landlord, in form reasonably satisfactory
to Landlord, to be bound by all the obligations of Tenant hereunder,
including, without limitation, the obligation to pay Fixed Rent and
other amounts provided for under this Lease and the covenant against
further assignment and subletting, except as expressly permitted
hereunder, but such assignment or subletting shall not relieve the
Tenant named herein of any of the obligations of Tenant hereunder, and
Tenant shall remain fully liable therefor. In no event, however, shall
Tenant assign this
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Lease or sublet the whole or any part of the Premises to a proposed
assignee or sublessee which has been judicially declared bankrupt or
insolvent according to law, or with respect to which an assignment has
been made of property for the benefit of creditors, or with respect to
which a receiver, guardian, conservator, trustee in involuntary
bankruptcy or similar officer has been appointed to take charge of all
or any substantial part of the proposed assignee's or sublessee's
property by a court of competent jurisdiction, or with respect to which
a petition has been filed for reorganization under any provisions of the
Bankruptcy Code now or hereafter enacted, or if a proposed assignee or
sublessee has filed a petition for such reorganization, or for
arrangements under any provisions of the Bankruptcy Code now or
hereafter enacted and providing a plan for a debtor to settle, satisfy
or extend the time for the payment of debt. Tenant shall, within thirty
days after demand, reimburse Landlord for the reasonable out-of-pocket
legal fees and expenses (not to exceed $500 in any one instance)
incurred by Landlord in processing any request to assign this Lease or
to sublet all or any portion of the Premises, whether or not Landlord
agrees thereto, and if Tenant shall fail to reimburse Landlord, the same
shall be a default in Tenant's monetary obligations under this Lease.
Without limitation of the rights of Landlord hereunder in respect
thereto, if there is any assignment of this Lease by Tenant for
consideration or a subletting of the whole of the Premises by Tenant at
a rent or other consideration which exceeds the rent payable hereunder
by Tenant, or if there is a subletting of a portion of the Premises by
Tenant at a rent in excess of the subleased portion's pro rata share of
the rent payable hereunder by Tenant (which shall not include any
consideration given for the use of furniture, telecommunications
equipment or other equipment), then Tenant shall pay to Landlord, as
additional rent, forthwith upon Tenant's receipt of the consideration
(or the cash equivalent thereof) therefor, 50% of any such excess, after
Tenant has recouped the reasonable out-of-pocket costs and expenses
which Tenant has incurred in entering into such assignment or sublet.
The provisions of this paragraph shall apply to each and every
assignment of this Lease and each and every subletting of all or a
portion of the Premises, except to a Permitted Transferee (as defined
below), in each case on the terms and conditions set forth herein. For
the purposes of this Section 5.1, the term "rent" shall mean all Fixed
Rent, additional rent or other payments and/or consideration payable by
one party to another for the use and occupancy of all or a portion of
the Premises.
The provisions of this Section 5.1 relating to the necessity of
Landlord's prior consent shall not, however, be applicable to an
assignment of this Lease by Tenant to (i) a subsidiary (for such period
of time as the stock of such subsidiary continues to be owned by Tenant,
it being agreed that except as hereinafter set forth the subsequent sale
or transfer of fifty percent (50%) or more of the stock of such
subsidiary shall be treated as if such sale or transfer were, for all
purposes, an assignment of this Lease governed by the Provisions of this
Section 5.1); or (ii) controlling corporation; or (iii) corporation
under common control with
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Tenant (an "affiliate") (but if at any time such entity ceases to be an
affiliate, then except as hereinafter set forth the same shall be
treated as an assignment of this Lease governed by the provisions of
this Section 5.1); or (iv) to an entity which is acquiring all of
Tenant's assets whether through an acquisition of assets, merger, or
consolidation (each such transferee herein a "Permitted Transferee");
provided (and it shall be a condition of the validity of any such
assignment) that such Permitted Transferee agree directly with Landlord
to be bound by all of the obligations of Tenant hereunder, including,
without limitation, the obligation to pay the rent and other amounts
provided for under this Lease, the covenant to use the Premises only for
the purposes specifically permitted under this Lease and the covenant
against further assignment except as permitted herein; but such
assignment shall not relieve Tenant herein named of any of its
obligations hereunder, and Tenant shall remain fully liable therefor.
Notwithstanding the foregoing, should Tenant enter into a sublease of a
portion (being less than 50% of the floor area) of the Premises with a
subsidiary or affiliate then the "spin off" of such subsidiary or
affiliate through the sale of stock thereof to a third party or the
merger or consolidation of such subsidiary or affiliate with such third
party where such spin off is accomplished to further the business
objectives of the Tenant and not to avoid the prohibition against
subletting set forth herein shall be permitted without the necessity of
the Landlord's consent, provided that (i) as herein set forth the Tenant
shall remain obligated under this Lease notwithstanding such subletting
and (ii) the sublessee shall agree directly with Landlord that its
sublease is subject and subordinate to this Lease in all respects and
that it will attorn to Landlord, at Landlord's request, should this
Lease terminate for any reason.
ARTICLE VI
DELIVERY OF PREMISES AND
RESPONSIBILITY FOR REPAIRS
CONDITION OF PREMISES
6.1 DELIVERY OF POSSESSION OF PREMISES.
(a) Subject to and in accordance with the terms and conditions of
this Lease, Landlord shall, at its expense, commence and
diligently prosecute to completion in a good and workmanlike
manner in accordance with all applicable laws, rules,
regulations, requirement, statutes, ordinances, by-laws and
court decisions which are now or hereafter in force (the "Legal
Requirements"): (i) the Building and other improvements
associated therewith in accordance with Landlord's Plans and
Specifications (as defined below); and (ii) all other
improvements to be constructed on the Lot (including, without
limitation, parking areas, roads, sidewalks, utility lines,
lighting, fire safety systems and landscaping) necessary for the
operation, use and maintenance of the Building for the purposes
set forth herein. Landlord represents and warrants that to its
knowledge as of the date hereof it has obtained all material
federal, state and local permits and
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approvals necessary for the construction and operation of the
Building except for a building permit and a conditional use
permit under the Boston Zoning Code and (ii) once such a
conditional use permit is obtained and no longer subject to
appeal, the Use is permitted as of right under applicable zoning
ordinances and under the Ground Lease.
(b) Following substantial completion of the Landlord's Work,
Landlord shall cause its architect Add Inc. (the "Architect"),
to measure the rentable floor area of the Building and the
Premises in accordance with BOMA standards for a multi-tenant
building, but in no event shall the loss factor in connection
therewith exceed 12%, and to certify such area and the final
usable floor area of the Building and Premises in writing to
Landlord and Tenant and to furnish a copy of such
certifications, along with sufficiently detailed back-up
information include a breakdown of the architect's calculation
and CAD Discs in a commercially standard format, to Tenant for
confirmation by Tenant and Tenant's architect. If within ten
(10) business days after Tenant has received from Landlord such
certifications and backup information Tenant has neither
approved such certifications in writing or given written
objection to the same stating the reasons therefor, then
Landlord may give Tenant notice reminding Tenant that Tenant has
not approved or rejected the same and if within ten (10)
business days thereafter Tenant still fails to act then the
certifications shall be deemed confirmed and approved by Tenant.
However, if Tenant timely objects to such certifications, then
the measurement of the Rentable Floor Area of the Building and
Premises shall be made by an independent third party AIA
certified architect chosen jointly by the Architect and Tenant's
architect and the costs of such third party architect shall be
borne jointly by Landlord and Tenant. Following agreement by the
parties on the measurements so made or its determination by
arbitration as set forth above, such measurements shall then be
the "Rentable Floor Area of the Building" and "Rentable Floor
Area of the Premises" and shall be substituted in the definition
of "Rentable Floor Area of the Building" and "Rentable Floor
Area of the Premises" as set forth in Section 1.2 of this Lease,
and that determination of Rentable Floor Area of the Premises
shall then be used in computing and determining the annual Fixed
Rent payable during the original Lease Term (as set forth under
the definition of annual Fixed Rent in Section 1.2 hereof), the
Tenant Allowance (as set forth in Section 6.3A hereof) and the
other provisions of this Lease involving the Rentable Floor Area
of the Building or the Premises. In addition, Landlord and
Tenant shall promptly execute a written statement in recordable
form setting forth the recomputed figures resulting from such
determination.
(c) Landlord shall not, without Tenant's prior written consent not
to be unreasonably withheld or delayed, make any changes to
Landlord's Work
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that would (i) cause a delay in the Target Date, (ii) reduce or
otherwise materially adversely affect the nature, quality or
capacity of the heating, ventilating, air-conditioning,
plumbing, mechanical (including elevators), electrical,
telephone, telecommunications and other utilities, services,
systems and equipment serving the Premises, or (iii) require any
substantial revision to Tenant's Approved Plans (as defined in
Section 6.2 below) or otherwise materially affect the design of
the Tenant's Work (as defined below).
(d) The Premises shall be conclusively deemed delivered to Tenant as
soon as the initial work to be done by Landlord as set forth in
Exhibit C hereto (the "Landlord's Work or "Landlord Work") has
been substantially completed by Landlord (as defined in Section
6.3B) or would have been so completed except for Tenant Delay.
If any delay in such substantial completion is
(i) due to any change in the Landlord's Work requested by
Tenant (a "Tenant Change Order"); or
(ii) caused in whole or in part by another Tenant Delay
then the Premises shall be deemed ready on the date the same would have
been ready except for such delay caused by a Tenant Change Order or
Tenant Delay.
If as hereinabove provided the Premises are so deemed ready for Tenant's
occupancy prior to the time they are actually ready for Tenant's
occupancy, Tenant shall not (except with Landlord's consent) be entitled
to take possession of the Premises for use as set forth herein until the
Premises are in fact actually ready for such occupancy, notwithstanding
the fact because the premises shall have as above stated been deemed
ready for such occupancy that the Term hereof shall on that account have
commenced..
6.2 PLANS AND SPECIFICATIONS. Annexed hereto as Exhibit C-1 is a matrix
showing the elements of Landlord's Work and Tenant's Work. Landlord has
prepared and delivered to Tenant Landlord's plans and specifications
("Landlord's Plans and Specifications") for Landlord's Work. The same
have been approved by Tenant. All of Landlord's Work shall be performed
in accordance with Landlord's Plans and Specifications. Tenant agrees to
deliver to Landlord by April 1, 2002 schematic and design plans (herein
called "Schematic Tenant Plans") for the work to be undertaken to
prepare the Premises for Tenant's use and occupancy by Tenant (the
"Tenant Work") for Landlord's review and approval which approval shall
not be unreasonably withheld, conditioned or delayed. Landlord shall
cooperate reasonably with Tenant and its architect in connection with
the preparation of the Schematic Tenant Plans, including, without
limitation, providing copies of the Landlord's Plans and Specifications
and any other information relating to the Building and the Landlord's
Work as Tenant or
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its architect may reasonably request and permitting Tenant or its
architect reasonable access to the Building and the Lot to take
measurements and to perform inspections.
Any submittal to Landlord which is not responded to by Landlord in
writing within fifteen (15) business days of receipt of the same (and
with respect to any revised submittal, within five (5) business days of
receipt of the same) shall be deemed approved provided that the
submittal contains a statement at a prominent location and in bold type
to the following effect: "If you do not respond to this submittal in
writing within fifteen (15) business days [or five (5) business days, as
applicable], this submittal shall be deemed approved." Tenant shall
deliver to Landlord within the later of (i) April 1, 2002 or (ii) ninety
(90) days after Landlord has approved Tenant's approved Schematic Tenant
Plans, construction drawings (herein called "Initial Tenant Plans") for
the Tenant Work for Landlord's review and approval, which approval shall
not be unreasonably withheld, conditioned or delayed; provided, however,
Landlord may not disapprove any matter that is consistent with Tenant's
approved Schematic Tenant Plans. Landlord shall cooperate reasonably
with Tenant and its architect in connection with the preparation of the
Initial Tenant Plans, including, without limitation, providing such
information as Tenant or its architect may reasonably request and
permitting Tenant or its architect reasonable access to the Building and
the Lot to take measurements and perform inspections.
For the purposes of this Lease, "Tenant Approved Plans" shall mean the
final version of the Initial Tenant Plans approved by Landlord.
Tenant may, from time to time, submit to Landlord any material changes
or additions to the Tenant's Approved Plans desired by Tenant, which
changes or additions shall be subject to Landlord's approval, which
shall not be unreasonably withheld, conditioned or delayed provided the
same do not delay Landlord's Work or result in any increase to Landlord
in cost, provided, however that in the case where the same do not delay
Landlord's Work but do result in an increase to Landlord in cost then
Landlord shall make the same provided that Tenant has agreed in writing
with Landlord to pay all of such increased costs promptly upon billing
therefor, in which case Tenant shall pay such costs to Landlord promptly
upon billing therefor. Any non-material changes shall not require
Landlord's consent.
6.3 PREPARATION OF PREMISES.
(a) Landlord. Landlord shall perform the work set forth on Exhibit C
hereto and shall not be obligated to perform any other work to
the Premises or Building, except as otherwise expressly set
forth herein.
-17-
(b) By Tenant. All work in addition to that set forth on Exhibit C
to prepare the Premises for Tenant's occupancy shall be done by
Tenant at its sole cost and expense in accordance with the terms
of this Lease.
(c) Any additional cost to Landlord in connection with the
completion of the Premises in accordance with the terms of this
Lease (including Exhibit C) resulting from Tenant Change Orders
or Tenant Delay shall be promptly paid by Tenant to Landlord.
For the purposes of the next preceding sentence, the term
"additional cost to Landlord" shall mean any cost in excess of
$5000 in the aggregate over and above such cost as would have
been the aggregate cost to Landlord of completing the Premises
in accordance with the terms of this Lease and Exhibit C had
there been no Tenant Change Order or Tenant Delay, as such cost
is reasonably determined by Landlord's Architect. Landlord shall
pay to Tenant any additional costs to Tenant (meaning any costs
in excess of $5000 in the aggregate over and above such costs as
would have been the aggregate cost to Tenant of performing
Tenant's Work in accordance with the terms of this Lease had
there been no Landlord Change (as hereinafter defined)) which
has resulted from a change made by Landlord to Landlord's Plans
and Specifications which has not been approved by Tenant (a
"Landlord Change"). Nothing contained in this provision shall
limit or qualify or prejudice any other covenants, agreements,
terms, provisions and conditions contained in this Lease.
(d) With Landlord's prior written consent, Tenant shall have the
right to enter the Premises prior to the Commencement Date,
without payment of rent, to perform such work or decoration as
to be performed by, or under the direction or control of,
Tenant. Such right of entry shall be deemed a license from
Landlord to Tenant and any entry thereunder shall be at the risk
of Tenant.
(e) Tenant shall be conclusively deemed to have agreed that Landlord
has performed all of its obligations under this Article VI
unless not later than the end of the second calendar month next
beginning after the Commencement Date, Tenant shall give
Landlord written notice specifying the respects in which
Landlord has not performed any such obligations, except that
with respect to latent defects, such period shall be eleven
months.
Landlord shall cooperate with Tenant in obtaining all permits and
approvals as are necessary for the construction of the Tenant Work. The
Term of this Lease shall commence (the "Commencement Date") upon the
earlier to occur of (i) 180 days after the date that the Landlord Work
is substantially completed (as defined below) or (ii) the date that
Tenant first commences business operations within any part of the
Premises; provided, however, that if Tenant commences business
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operations within some portion, but not all of the Premises prior to the
expiration of such 180-day period then the Term shall only commence with
respect to such portion.
Landlord and Tenant and their contractors shall reasonably cooperate
with each other in scheduling their work so that neither shall
unreasonably delay or interfere with the work of the other. During the
period when Landlord Work and Tenant Work are both being conducted,
Landlord, Tenant and their architects and contractors shall have weekly
meetings in order to discuss the status of the construction and
coordinating construction activities with each other. In addition,
Landlord shall permit Tenant and its contractors access to the Building
prior to the date when the Landlord Work has been substantially
completed at mutually agreed upon times so that Tenant may perform work
which may be most timely and economically performed prior to the date of
such substantial completion, such as, by way of example and not by way
of limitation, access to part of the walls within the Building being
enclosed so that Tenant and/or its contractors may install Tenant's
computer, data and telephone lines, but in the performance of such early
entry, Tenant shall not delay Landlord Work and Tenant's contractors
shall cooperate completely with Landlord's contractors. Landlord shall
give Tenant reasonable advance notice of its schedule for construction
and reasonable dates for access by Tenant and its contractor.
Landlord agrees to obtain from the general contractor performing the
Landlord's Work and from the subcontractor performing portions thereof,
construction warranties that for a period as determined by Landlord (but
not less than one year) such work is free of material defects in
workmanship and materials and conforms in all material respects to
Landlord's final plans including a warranty for no less than ten years
on the roof system of the Building. Landlord agrees to promptly replace
or repair, at its expense, items of Landlord's Work which are then
incomplete or do not conform to the Landlord's final plans as to which
Tenant shall have given notice to Landlord within sixty days after the
date of substantial completion of Landlord's Work except that with
respect to latent defects, such period is extended to eleven months. All
construction work required or permitted by this Lease shall be done in a
good and workmanlike manner and in compliance with all applicable Legal
Requirements. Each party or its architect may inspect the work of the
other at reasonable times and shall promptly give notice of observed
defect. Each party is authorized by the other to rely, in connection
with design and construction upon approval and other actions on the
party's behalf by any Construction Representative of the party named
below or any person hereafter designated in substitution or addition by
notice of the party relying: Tenant's Construction Representative: Xxx
Xxxxxxx, Landlord's Construction Representative: Xxxx Xxxxxxxxx.
6.3A LANDLORD'S PAYMENT. Upon satisfaction of the following conditions, and
provided the Tenant is not then in default under this Lease beyond the
expiration
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of applicable notice and cure periods (but such amount shall become due
when Tenant cures any such default), Landlord shall pay to Tenant an
amount equal to $30.00 per square foot of rentable area of the Premises
(the "Tenant Allowance") as an inducement to Tenant to enter into this
Lease:
(a) one third of such amount shall be payable by Landlord to Tenant
no later than thirty (30) days after the date when the Tenant
Approved Plans shall have been approved by Landlord, provided
that at such date Tenant is not in default under this Lease
beyond the expiration of applicable cure and/or notice periods
(but such amount shall become due when Tenant cures any such
default); (b) an additional one-third of such amount shall be
paid to Tenant within thirty days after Tenant shall have
completed one-third of the Tenant's Work, shall have furnished
to Landlord partial lien waivers and releases from all
contractors, materialmen and suppliers with respect to such
work, and a certificate of Tenant's general contractor that such
work has been completed to such extent; and (c) the remainder of
such amount shall be paid to Tenant upon satisfaction of the
following conditions:
(i) Tenant shall have substantially completed all of
Tenant's Work, shall have paid for such work in full and
shall have delivered to Landlord lien waivers in
recordable form from all materialmen, contractors and
suppliers (in excess of $10,000) with respect to such
work (with respect to any contractor, materialman or
supplier in respect of which Tenant has not delivered to
Landlord a lien waiver where such lien waiver is
required, then Landlord shall withhold from the Tenant
Allowance an amount equal to the unpaid balance of such
work or materials to such materialman, contractor or
supplier until such lien waiver has been received but
shall pay the remainder of such Tenant Allowance to
Tenant), and
(ii) Tenant shall have delivered to Landlord reasonable
evidence of the cost of the work in the form of paid
invoices, receipts and the like, and
6.3B SUBSTANTIAL COMPLETION.
(a) Landlord's Work shall be treated as having been "substantially
completed" for purposes of this Lease on the latest of:
(i) The date on which the Landlord's Work in the Premises as
described in Landlord's Plans and Specifications has
been completed except for Punch List Items;
(ii) The Architect certifies to Tenant that Landlord's Work
in the
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Premises as described in Landlord's Plans and
Specifications has been substantially completed in
accordance with said plans;
(iii) the completion of any portion of the Landlord's Work
outside the Premises necessary to enable Tenant and its
contractor to commence the Tenant Work;
(iv) Building Systems, including, without limitation, the
heating, ventilation, air conditioning, plumbing,
mechanical, electrical, telephone, life safety and
telecommunications systems (to the extent to be provided
by Landlord according to the Landlord's Plans and
Specifications) are installed within the Building and
delivered to the Premises to the extent necessary to
permit the commencement, continuation and completion of
the Tenant's Work; and
(v) Landlord's Work outside the Premises shall be completed
to the extent necessary to deliver all utilities to the
Premises.
On or about the date that Landlord's Work is substantially complete,
Landlord's Construction Representative and Tenant's Construction
Representative shall conduct a joint walk-through of the Premises and
shall prepare a mutually acceptable inventory of "punch list" items (the
"Punchlist Items"). With respect to Landlord's Work, Landlord shall
cause all Punchlist Items to be completed within 30 days after the
"delivery" thereof, except such Punchlist Items that cannot be completed
due to seasonal conditions or because completion of the Tenant Work is
necessary for the completion of such Landlord's Work, which in either
case Landlord shall complete as soon as such condition reasonably
permit, but in no event longer than 30 days, subject to delays due to
Landlord's Force Majeure.
Landlord and Tenant acknowledge that certain of Landlord's finish work
in the lobby and in the bathrooms and in the elevators will not be
performed by the date of such substantial completion but Landlord shall
perform such work no later than 120 days after the date of substantial
completion; provided, however, that if Tenant intends to occupy a
portion or portions of the Premises prior to the expiration of such
120-day period, Tenant may accelerate such period with respect to such
portions by notice given to Landlord at least thirty (30) days prior to
the end of such accelerated period.
To the extent that any of Landlord's Work to the Building has not been
completed and the lack of completion thereof delays Tenant in the
completion of the Tenant Work (including any unreasonable interference
with Tenant's contractors' access to the Premises) or in obtaining a
certificate of occupancy then the 180 day period set forth above shall
be extended to the extent of such Landlord Delay. In any
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case, by the end of such 180 day period and subject to Landlord's Force
Majeure Landlord shall complete the construction of the plaza area.
6.4 REPAIRS TO BE MADE BY LANDLORD. Landlord agrees to keep in good order,
condition and repair the Common Areas and common facilities of the
Building, including, but not limited to, all HVAC, electrical, plumbing,
security, life safety and other mechanical systems ("Building Systems")
and the driveways and other common areas of the Lot, and the structure,
foundations and roof of the Building, insofar as any of the foregoing
affects the Premises or access thereto or the use thereof, and shall
maintain the same in accordance with applicable laws, ordinances,
governmental rules and regulations, directions and orders of officers of
governmental agencies having jurisdiction except that where the same
results from the specific nature of Tenant's use or any alterations or
changes made by Tenant, Tenant shall reimburse Landlord for the cost
thereof upon demand. Landlord shall in no event be responsible to Tenant
for the condition of glass in the Premises or for the entry doors to the
Premises, or with respect to any condition in the Premises or the
Building caused by any act or neglect of Tenant or any contractor,
agent, employee or invitee of Tenant, or anyone claiming by, through or
under Tenant, Landlord shall restore the same and Tenant shall reimburse
Landlord for the cost thereof upon demand. Landlord shall not be
responsible to make any improvements or repairs to the Building or the
Premises other than as expressed in this Section 6.4 unless otherwise
expressly provided in this Lease. Landlord shall use all commercially
reasonable efforts to minimize noise or vibration on the roof of the
Building, and in connection therewith Landlord's design of the HVAC
units and other equipment located on the roof shall be such that noise
levels will not exceed 44 dBA or XX XX 37 [equivalent NC 34 more or
less] (the "Noise Standard"). Landlord shall cause all equipment located
on the roof by other tenants to be designed to satisfy the Noise
Standard, and Tenant shall cause any of its equipment located on the
roof to be designed to satisfy the Noise Standard. If any equipment
located on the roof by Landlord or other tenants shall not satisfy the
Noise Standard in operation, then Landlord shall perform such work as
shall be necessary so that such equipment shall satisfy the Noise
Standard in operation, and if any equipment located on the roof by
Tenant does not satisfy the Noise Standard in operation then Tenant
shall perform such work as shall be necessary to cause such equipment to
satisfy the Noise Standard in operation.
Landlord shall never be liable for any failure to make repairs which,
under the provisions of this Section 6.4 or elsewhere in this Lease,
Landlord has undertaken to make unless: (a) Tenant has given notice to
Landlord of the need to make such repairs as a result of a condition in
the Building or in the Premises requiring any repair for which Landlord
is responsible except that to the extent that the Landlord or its agent
otherwise has actual knowledge of the need for such repair then such
notice shall not be required and Landlord shall be required to commence
to make such repairs within a reasonable time after Landlord has actual
knowledge thereof;
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and (b) Landlord has failed to commence to make such repairs within five
(5) business days after receipt of such notice or actual knowledge if
any repairs are, in fact, necessary.
6.5 TENANT'S AGREEMENT. Tenant agrees that throughout the Lease Term Tenant
will keep neat and clean and maintain in as good order, condition and
repair as exists at the Commencement Date, reasonable wear and tear only
excepted, the Premises and every part thereof, excepting only those
repairs for which Landlord is responsible under the terms of this Lease
or where the cause thereof is the result of Landlord's default under
this lease and damage by fire or other casualty or as a consequence of
the exercise of the power of eminent domain, and shall surrender the
Premises at the end of the Term, in such condition. Without limitation,
Tenant shall maintain and use the Premises in accordance with all
applicable laws, ordinances, governmental rules and regulations,
directions and orders of officers of governmental agencies having
jurisdiction; and in accordance with the reasonable requirements of
Landlord's and/or Tenant's insurers; provided, however, that in
connection with such compliance with laws, etc. the Tenant shall not be
required to make any structural alterations or changes to the Building
or the Premises except where the same are required as a result of the
specific nature of the use being made by Tenant of the Premises or by
reason of any alterations or changes made by Tenant to the Premises.
Tenant shall, at Tenant's own expense, obtain and maintain in effect all
permits, licenses and the like required by applicable law for Tenant's
particular use of the Premises or for any Alterations made by Tenant to
the Premises. Landlord has entered into a certain traffic agreement with
the Boston Redevelopment Authority and certain other agreements with the
Boston Redevelopment Authority and in connection therewith encourages
all employers at the Building to participate in the Corporate Pass
Program of the
Massachusetts Bay Transit Authority and the use of mass
transit by persons working in Boston and to inform their employees of
the benefit of using monthly transit passes and further encourages all
employers in the Building to employ Boston residents. If required by any
governmental authority, Landlord may request Tenant to report
periodically on the number of Boston residents employed by Tenant at the
Premises and the number of its employees who use mass transit passes
issued under the Corporate Pass Program, and Tenant will use reasonable
efforts to comply with such request. Tenant shall not permit or commit
any waste, and Tenant shall be responsible for the cost of repairs which
may be made necessary by reason of damage to any areas in the Building,
including the Premises, by Tenant, Tenant's contractors or Tenant's
agents, employees or invitees, or anyone claiming by, through or under
Tenant.
If repairs are required to be made by Tenant pursuant to the terms
hereof, Landlord may demand that Tenant make the same forthwith, and if
Tenant refuses or neglects to commence such repairs and complete the
same within the applicable cure period after such demand, Landlord may
(but shall not be required to do so)
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make or cause such repairs to be made. If Landlord makes or causes such
repairs to be made, Tenant agrees that Tenant will forthwith, on demand,
pay to Landlord the cost thereof, and if Tenant shall default in such
payment, Landlord shall have the remedies provided for the nonpayment of
rent or other charges payable hereunder.
6.6 FLOOR LOAD - HEAVY MACHINERY. Tenant shall not place a load upon any
floor in the Premises exceeding the lesser of (a) the floor load per
square foot of area which such floor was designed to carry as certified
by Landlord's architect and (b) the floor load per square foot of area
which is allowed by law. Landlord reserves the right to prescribe the
weight and position of all business machines and mechanical equipment,
including scales, which shall be placed so as to distribute the weight.
Business machines and mechanical equipment shall be placed and
maintained by Tenant at Tenant's expense in settings sufficient, in
Landlord's reasonable judgment, to absorb and prevent vibration, noise
and annoyance. Tenant shall not move any safe, heavy machinery, heavy
equipment, freight, bulky matter or fixtures into or out of the Building
without Landlord's prior consent, which shall not be unreasonably
withheld, conditioned or delayed.
If such safe, machinery, equipment, freight, bulky matter or fixtures
requires special handling, Tenant agrees to employ only persons holding
a Master Rigger's License to do said work, and that all work in
connection therewith shall comply with applicable laws and regulations.
Any such moving shall be at the sole risk and hazard of Tenant and
Tenant will exonerate, indemnify and save Landlord harmless against and
from any liability, loss, injury, claim or suit resulting directly or
indirectly from such moving. Tenant shall schedule such moving at such
times as Landlord reasonably shall require for the convenience of the
normal operations of the Building.
ARTICLE VII
SERVICES TO BE FURNISHED BY LANDLORD
AND UTILITY CHARGES
7.1 LANDLORD'S SERVICES. At Landlord's sole cost and expense but subject to
reimbursement pursuant to the terms hereof, Landlord covenants during
the Lease Term during the hours of 8 a.m. to 6 p.m., Monday through
Friday, and 8 a.m. to 1 p.m. on Saturdays, holidays (New Year's Day,
President's Day, Memorial Day, July 4th, Labor Day, Thanksgiving and
Christmas) excepted ("Normal Building Operating Hours"):
(a) to provide heating and air conditioning in the Premises during
the normal heating and air conditioning seasons, and the
Building heating and air conditioning systems shall be designed
to provide heating and air conditioning in compliance with the
specifications attached as Exhibit F;
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(b) at all times, to furnish hot and cold water for ordinary toilet,
lavatory and drinking purposes (Landlord is not required to
furnish water for kitchens or kitchenettes). If Tenant requires
water for any other purpose, including without limitation for a
kitchen, Tenant shall pay the Landlord a fair and equitable
charge therefor determined by Landlord to reimburse Landlord for
the cost of such water and related sewer use charge (including a
charge to reimburse Landlord for the cost of metering Tenant's
usage);
(c) to furnish non-exclusive passenger elevator service and, where
provided, exclusive elevator service. Subject to the terms of
Section 2.2 of this Lease, access to the Premises through
elevators shall be provided on a 24-hour basis each day of the
year, but subject to such reasonable rules and regulations for
security as the Landlord may reasonably establish; and
(d) unless Tenant elects otherwise as provided below, to furnish
cleaning services for the Premises and Common Areas and elevator
reasonably consistent with such services set forth on Exhibit I
hereto.
(e) to provide electricity to the Premises at least equal to eight
xxxxx per Rentable Square Foot, exclusive of HVAC; and
(f) provide for the clearance and removal of snow and ice from the
driveways and walkways on the Lot and the maintenance, in a good
and attractive condition, of all landscaping on the Lot.
The services to be provided by Landlord under this Section 7.1 shall be
at least consistent in quality with the quality of services in
facilities similar to the Building in the general vicinity of the
Building. In addition, Landlord agrees to furnish, at Tenant's expense,
HVAC at times other than Normal Business Operating Hours, upon Tenant's
request and such additional special services as may be mutually agreed
upon by Landlord and Tenant, upon reasonable and equitable rates from
time to time established by Landlord, and Tenant shall pay therefor
promptly after receipt of billing at the time of Tenant's next Fixed
Rent payment. Landlord's initial charge for overtime HVAC is $50.00 per
hour.
Tenant may elect to provide janitorial services to the Premises by
notice to Landlord to such effect given no later than May 1, 2002.
If Tenant has elected that it will provide its own janitorial service it
may at any time thereafter elect that Landlord shall provide such
service but such election cannot be made more than once in any two year
period and then at least six months prior to date upon which Landlord is
to begin furnishing such service. If, however, Tenant has at any time
elected not to provide such service it may thereafter elect to provide
such service for itself provided that it gives Landlord at least twelve
months advance notice thereof and shall not make any such election
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more often than once in any twenty-four month period. Landlord and
Tenant shall coordinate so that Tenant's provision of its own janitorial
service shall commence at a time when Landlord's then current contract
for the provision of janitorial services to the Building is ending or up
for renewal. If at any time Tenant has elected to provide its own
janitorial service then there shall be a fair reduction in rent by the
cost which Landlord would have incurred in an arms-length commercially
reasonable context to provide such service less any extra cost which the
Landlord incurs in providing janitorial service to the rest of the
Building as a result of the deletion of Tenant's Premises from
Landlord's contract with its janitorial contractor, and during such
period of time, the Base Operating Expenses shall be reduced by the
amount which Landlord would have incurred in providing such janitorial
services to Tenant's Premises during the Base Year or in fact the amount
which Landlord actually incurred during such Base Year, as the case may
be.
7.2 PAYMENT OF UTILITY CHARGES. With respect to electricity for lighting and
equipment in the Premises, prior to the Commencement Date the same shall
be separately metered by Landlord, and Tenant agrees to pay all bills
therefor promptly to the utility company furnishing the same and, if
requested by Landlord, provide Landlord with evidence of such payment.
If such utility company shall have a lien on the Premises for nonpayment
of such charges and Tenant shall fail at any time to make payment of
same, without limitation of Landlord's rights on account of such
failure, Tenant shall thereafter, if requested by Landlord, pay to
Landlord, when monthly Fixed Rent is next due and thereafter on
Landlord's demand, an amount reasonably estimated by Landlord to be
sufficient to discharge any such lien. Such amount or such portion
thereof as shall be unexpended at the expiration of this Lease shall,
upon full performance of all Tenant's obligations hereunder, be repaid
to Tenant without interest.
ARTICLE VIII
REAL ESTATE TAXES AND OTHER EXPENSES
8.1 TENANT'S SHARE OF REAL ESTATE TAXES.
(a) For the purposes of this Section:
(i) The term "Tax Period" shall mean the period during which
Taxes (as hereinafter defined) are required to be paid
under applicable law. Thus, under the law presently in
effect in the Commonwealth of
Massachusetts, Tax Period
means the period from July 1 of a calendar year to June
30 of the subsequent calendar year. Suitable adjustment
in the determination of Tenant' obligation under this
Section 8.1 shall be made in the computation for any Tax
Period which is greater than or less than twelve (12)
full calendar months.
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(ii) The term "Taxes" shall mean all real estate taxes and
assessments (which term, for purposes of this provision,
shall include water and sewer use charges which are not
separately metered to Tenant or any other occupant of
the Building), special or otherwise, levied or assessed
upon or with respect to the Lot and Building or any part
thereof and all ad valorem taxes for any personal
property of Landlord used in connection therewith. As of
the date of delivery of the Premises to Tenant, the Lot
shall be a single tax parcel, separately assessed,
including no taxable improvements other than the
Building (upon its completion) and the Common Areas
existing as of the Commencement Date. Should the
Commonwealth of
Massachusetts, or any political
subdivision thereof, or any other governmental authority
having jurisdiction over the Lot and Building, (1)
impose a tax, assessment, charge or fee, which Landlord
shall be required to pay, by way of substitution for or
as a supplement to such real estate taxes and ad valorem
personal property taxes, or (2) impose an income or
franchise tax or a tax on rents in substitution for or
as a supplement to a tax levied against the Lot and
Building or any part thereof and/or the personal
property used in connection with the Lot or Building or
any part thereof, all such taxes, assessments, fees or
charges (hereinafter defined as "in lieu of taxes")
shall be deemed to constitute Taxes hereunder. Except as
hereinabove provided with regard to "in lieu of taxes",
Taxes shall not include any inheritance, estate,
succession, transfer, gift, franchise, net income or
capital stock tax or any so-called linkage payments. If
any betterment assessment is made against the Lot, and
such assessment may be paid in installments over a
number of years, then there shall be included in each
Tax Period's taxes only the installment of (or portions
thereof) falling due within such Tax Period had Landlord
elected to pay the same over the longest period
permitted by law (together with any statutory interest
thereon) whether or not Landlord so elects. If Landlord
shall obtain any abatement or reduction in Taxes a
portion of which has already been paid by Tenant under
this Section 8.1, then after Landlord deducts therefrom
the reasonable costs and expenses incurred by Landlord
in obtaining such abatement or reduction, Landlord shall
pay to Tenant Tenant's Share of such abatement or
reduction but not in excess of the amount of Taxes paid
in respect thereof paid by Tenant under this Section 8.1
for the Tax Period in question.
(b) In the event that the Taxes imposed with respect to the Lot and
Building shall be greater during any Tax Period than the Base
Taxes:
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(i) Tenant shall pay to Landlord, as additional rent,
Tenant's Share of the amount by which the Taxes imposed
with respect to the Lot and Building for such Tax Period
exceed the Base Taxes, apportioned for any fraction of a
Tax Period contained within the Term, and
(ii) Landlord shall submit to Tenant a statement setting
forth the amount of such additional rent, and within
thirty (30) days after the delivery of such statement
(whether or not such statement shall be timely), Tenant
shall pay to Landlord the payment required under
subparagraph (i) above. So long as Taxes shall be
payable in installments under applicable law, Landlord
may submit such statements to Tenant in similar
installments. The failure by Landlord to send any
statement required by this subparagraph shall not be
deemed to be a waiver of Landlord's right to receive
such additional rent except that in no event shall
Tenant be responsible for Taxes not billed to Tenant
(other than in an abatement situation) within two years
after the date due to the appropriate governmental
authority. At Tenant's request, Landlord shall submit to
Tenant supporting back-up documentation with respect to
any statement which Landlord has delivered to Tenant for
payment.
(c) Tenant's payments in respect of increases in Taxes shall be
adjusted on a per diem basis for and with respect to any portion
of the Term which does not include an entire Tax Period.
(d) If Tenant is obligated to pay any additional rent as aforesaid
with respect to any Tax Period or fraction thereof during the
Term, then Tenant shall pay, as additional rent, on the first
day of each month of the next ensuing Tax Period, estimated
monthly tax escalation payments in an amount from time to time
reasonably estimated by Landlord. Estimated monthly tax
escalation payments for each ensuing Tax Period shall be made
retroactively to the first day of the Tax Period in questions.
Following the close of each Tax Period and with respect to which
Tenant is obligated to pay any additional rent as aforesaid,
Landlord shall submit the statement set forth in paragraph
(b)(ii) of this Section 8.1 and in the event the total of the
estimated monthly tax escalation payments theretofore made by
Tenant to Landlord for such Tax Period does not equal Tenant's
Share of the Taxes in excess of the Base Taxes, Tenant shall pay
any deficiency to Landlord as shown by such statement within
thirty (30) days after the delivery of such statement (whether
or not such statement shall be timely). If the total of the
estimated monthly tax escalation payments paid by Tenant during
such Tax Period exceed the actual amount of Tenant's Share of
the Taxes in excess of the Base Taxes, Landlord shall pay the
-28-
same to Tenant within thirty (30) days or, at Landlord's Option
credit the amount of such overpayment against subsequent
obligations of Tenant for rent under this lease (but Landlord
shall refund such overpayment if the Term has ended and Tenant
has no further obligations to Landlord under this lease).
(e) When the applicable tax xxxx is not available prior to the end
of the Term, then a tentative computation shall be made by
Landlord on the basis of the Taxes for the next prior Tax
Period, with a final adjustment to be made between landlord and
Tenant promptly after Landlord shall have received the
applicable tax xxxx.
(f) Payments by Tenant to Landlord on account of Taxes shall not be
considered as being held in trust, in escrow or the like, by
Landlord,; it being the express intent of Landlord and Tenant
that Tenant shall in no event be entitled to receive interest
upon, or any payments on account of earnings or profits derived
from, such payments by Tenant to Landlord. Landlord shall have
the same rights and remedies for the non-payment by Tenant of
any amounts due on account of such Taxes as Landlord has
hereunder for the failure of Tenant to pay the Fixed Rent.
8.2 TENANT'S SHARE OF OPERATING EXPENSES.
(a) For the purposes of this Section:
(i) The term "Operating Year" shall mean a calendar year in
which any part of the term of this Lease shall fall.
(ii) The term "Operating Expenses" shall mean all reasonable
expenses, costs and disbursements of every kind and
nature, paid or incurred by Landlord in operating,
insuring, owning, managing, repairing and maintaining
the Lot and Building and its appurtenances; including,
but without limitation: premiums for fire, casualty,
liability and such other insurance as Landlord may from
time to time maintain; security expenses; compensation
and all fringe benefits, workmen's compensation
insurance premiums and payroll taxes paid by Landlord
to, for or with respect to all persons engaged in
operating, maintaining, managing or cleaning (to the
extent that any personnel provide services for more than
the Building such compensation and benefits shall be
prorated on an equitable basis); fuel costs; steam,
water, sewer, electric gas, telephone, and other utility
charges not otherwise billed to tenants by Landlord or
the utility; expenses incurred in connection with the
central plant furnishing heating, ventilating and air
conditioning to the Building; costs of lighting,
ventilating, (including maintaining
-29-
and repairing ventilating fans and fan rooms); costs of
repairing and maintaining fire protection systems; costs
of building and cleaning supplies and equipment
(including rental); cost of maintenance, cleaning and
repairs; cost of snow plowing or removal, or both, and
care of interior and exterior landscaping; payments to
independent contractors under contracts for cleaning,
operating, management, maintenance and/or repair (which
payments may be to affiliates of Landlord); all other
expenses paid in connection with cleaning, operating,
management, maintenance and repair; costs of any capital
improvements completed after the Commencement Date which
are replacements of worn out or obsolescent items or are
mandated by law enacted after the date of this Lease, or
made in order to reduce other Operating Expenses to the
extent of such reduction, as such costs are reasonably
amortized by Landlord over the useful life thereof, with
interest on the unamortized amount at the rate of the
greater of (i) 12% per annum or (ii) 2% per annum above
the base rate of interest charged from time to time by
Fleet National Bank or any successor thereto (but in no
event at a rate which is more than the highest lawful
rate allowable in the Commonwealth of
Massachusetts), to
the extent the cost of the particular capital
improvement exceeds the amount of the unused reserve, if
any, for the replacement thereof previously included in
Operating Expenses and insurance proceeds, if any,
received by Landlord on account of damage to the
particular capital improvement. Operating Expenses shall
not, however, include the following:
1. Costs of alterations of any tenant's premises for
a particular tenant;
2. Principal or interest payments on loans secured by
mortgages or trust deeds on the Building and/or
lot;
3. Leasing expenses;
4. Salaries, benefits or other expenses for personnel
above the rank of property manager;
5. Services provided by Landlord to other tenants of
the Lot or Building and not to Tenant; and
6. Capital expenses, except as hereinbefore
permitted.
7. Financing and refinancing costs in respect of any
mortgage or security interest placed upon the
Building or the Lot or
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any portion thereof, including payments of
principle, interest, finance or other charges and
any points and commissions in connection
therewith;
8. Interest or penalties for any late or failed
payments by Landlord under any contract or
agreement unless resulting from Tenant's failure
to pay when and as due, Tenant's Share of
Operating Expenses or Taxes;
9. Costs (including, without limitation, attorneys'
fees and disbursements) incurred in connection
with any judgment, settlement or arbitration award
resulting from any tort liabilities;
10. Rent or other charges payable under any ground or
underlying lease;
11. Costs of any item which are reimbursed to Landlord
by other tenants or third parties (directly and
not through a reimbursement scheme such as that
contained in this Section 8.2) but which are
properly chargeable or attributable to a
particular tenant or particular tenants;
12. Costs of electrical or other utility services
furnished directly to any premises of other
tenants of the Building where such utility is
separately metered to the Premises;
13. Costs incurred in connection with Landlord's
preparation, negotiation, dispute, resolution
and/or enforcement of leases, including attorneys'
fees and disbursements in connection with any
summary proceedings, to dispossess any tenant or
incurred in connection with disputes with
prospective tenants, employees, consultants,
management agents, leasing agents, purchasers or
mortgagees;
14. Costs (including increased Operating Expenses) of
any additions to or expansions of the Building or
the Lot (but in such case, the square footage of
any additions or expansions shall not be included
in determining Tenant's Share);
15. Costs of repairs, restorations or replacements
occasioned by fire or casualty or caused by the
exercise of the right of eminent domain whether or
not the condemnation award
-31-
proceeds or insurance proceeds are recovered or
adequate for such purposes;
16. An amount equal to all amounts received by the
Landlord (x) through proceeds of insurance to the
extent the proceeds are compensation for expenses
which (i) previously were included in Operating
Expenses hereunder, (ii) are included in operating
expenses for the subsequent Operating Year in
which the insurance proceeds are received, or
(iii) will be included as Operating Expenses in a
subsequent Operating Year or (y) as rebates or
credits;
17. Legal and other professional fees for matters not
relating to the normal administration and
operation of the Building or relating to matters
which are excluded from Operating Expenses for the
Building;
18. The cost of environmental monitoring, compliance
testing and remediation performed in, on, about
and around the Building or the Lot;
19. Depreciation (amortization of certain capital
items is included as hereinbefore set forth);
20. Amounts paid to subsidiaries or affiliates of
Landlord for services rendered to the Building to
the extent such amounts exceed the competitive
costs for delivery of such services were they not
provided by such related parties;
21. Management fees to the extent in excess of
competitive rates;
22. Any costs incurred by Landlord in connection with
those portions of the Building being used by
purposes other than office space including for
retail space except as set forth in subsection (c)
below;
23. Any other costs or expenses which, in accordance
with generally accepted accounting principles,
consistently applied, would not typically be
treated as an Operating Expense by landlords of
comparable properties, but in any event the
amortization of certain capital items as set forth
above shall be included as an Operating Expense;
-32-
24. Costs incurred by Landlord to correct of defects
in the design and construction of the Building;
25. Expenses for services or other benefits which are
provided to another tenant or occupant of the
Building and are not the type that are offered to
Tenant;
26. Increases in advertising and promotional costs
including tenant relation programs and events and
any costs, fees, dues, contributions or similar
expenses for political, charitable, industry
association or similar organizations in excess of
$500 per year after the Base Year (Base Year
amount therefor shall be assumed to be $3000 for
the purposes hereof);
27. Any fines, costs, penalties or interest resulting
from the negligence, misconduct or omission of the
Landlord or its agents, contractors, or employees;
28. Acquisition costs for sculptures, paintings, or
other objects of art or the display of such items;
29. Costs incurred in connection with upgrading the
Building to comply with disability or life
insurance requirements, or life safety codes,
ordinances, statutes, or other laws in effect
prior to the Commencement Date, including, without
limitation, the Americans With Disabilities Act,
including penalties or damages incurred as a
result of non-compliance;
30. Costs for reserves of any kind except as provided
above; and
31. If the office portion of Wing Two not occupied by
Tenant shall hereafter be occupied by multi
tenants and a common lobby shall be provided for
such tenants then the costs and expenses of
maintaining and operating such common lobby shall
be excluded from Operating Expenses.
(b) Within 120 days after the expiration of each Operating Year,
Landlord shall furnish Tenant with a detailed statement setting
forth the Operating Expenses for such Operating Year and
Tenant's Share thereof. As Tenant's special audit right, at
Tenant's request made no later than sixty (60) days after the
receipt of such statement, Landlord shall furnish to
-33-
Tenant reasonable backup material evidencing the Operating
Expenses for such Operating Year set forth in such statement.
(c) In the event Operating Expenses during any Operating Year shall
exceed the Base Operating Expenses, Tenant shall pay to
Landlord, as additional rent, an amount equal to Tenant's Share
of such excess. For the purposes hereof Tenant Share of such
excess shall be calculated as follows: with respect to insurance
costs, Tenant's Share shall be a fraction equal to Tenant's Tax
Share and with respect to all other Operating Expenses Tenant's
Share shall be equal to a fraction, the numerator of which is
the Rentable Area of the Premises and the denominator of which
is the Rentable Area of all office space within the Building,
including the Premises.
(d) Said additional rent shall, with respect to the Operating Years
in which the Commencement Date and end of the Term of this Lease
fall, be adjusted to that proportion thereof as the portion of
the Term of this Lease falling within such Operating Year bears
to the full Operating Year. If Landlord shall change its
Operating Year, appropriate adjustment shall be made for any
Operating Year less than twelve months which may result.
(e) Any additional rent payable by Tenant under this Section 8.2
shall be paid within thirty (30) days after Landlord has
furnished Tenant with the Statement described above in paragraph
(b) of this Section 8.2.
(f) If with respect to any Operating Year or fraction thereof during
the Term, Tenant is obligated to pay any additional rent in
respect of increases in such Operating Expenses as aforesaid,
then Tenant shall pay, as additional rent, on the first day of
each month of the next ensuing Operating Year, estimated monthly
operating escalation payments in an amount from time to time
reasonably estimated by Landlord to be sufficient to cover, in
the aggregate, a sum equal to Tenant's Share of such increase in
Operating Expenses for such year. If the estimated monthly
operating escalation payments theretofore made for such
Operating Year by Tenant are greater than the amount due as
additional rent in respect thereof according to the statement
furnished Tenant by Landlord pursuant to paragraph (b) of this
Section 8.2, Landlord shall pay the same to Tenant within thirty
(30) days, or, at Landlord's election, credit the amount of such
overpayment against subsequent obligations of Tenant for
additional rent under this Lease (but Landlord shall refund such
overpayment if the Term has ended and Tenant has no further
obligation to Landlord under the Lease); but if such amount due
as such additional rent for said Operating Year is greater than
the estimated monthly operating escalation payments theretofore
made on account of such period, Tenant shall make suitable
payment to Landlord
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within the time set forth in paragraph (e) of this Section 8.2.
This provision shall survive the end of the Lease Term.
(g) If in the Base Year or any Operating Year the Building is not
95% occupied (above the ground floor retail) during all or any
portion of such year or if in the Base Year or in any Operating
Year the Operating Expenses are artificially low due to
incentives, credits, warranties, rebates, offsets and other
extraordinary and one-time payments or the like ("Rebates"), the
Operating Expenses shall be increased equitably to reflect such
Rebates or the vacancies within the Building (above the retail
ground floor) to the extent that Operating Expenses would be
greater had the Building been at least 95% occupied (above the
ground floor) during such year.
(h) Anything in this Lease to the contrary notwithstanding, it is
expressly understood and agreed that the designation or use by
Landlord from time to time of portions of the Lot or Building as
common areas shall not restrict the Landlord's use of such areas
for improvements, structures and/or for retail, office or such
other purposes as the Landlord shall determine, the Landlord
hereby reserving the unrestricted right to build, and to,
subtract from, lease, license, relocate and/or otherwise use
(temporarily and/or permanently), any improvements, kiosks or
other structures, parking areas, sidewalks or other such common
areas of facilities anywhere upon or within the Lot or Building
for office, retail, or such other purposes as Landlord shall
determine. Nothing herein shall limit the right of the Landlord
to change the use to which any part of the Building will be used
from the purposes specified herein. Landlord shall not exercise
its rights under this Subsection (h) in a manner that will
unreasonably interfere with Tenant's access to, or use of, the
Premises, or that would materially increase Tenant's obligations
or decrease Tenant's rights under this Lease.
(i) Within 90 days after receipt of each statement delivered under
this Section, Tenant or its agent (if a certified public
accountant) shall have the right to examine and copy Landlord's
records relating to the Operating Expenses and Taxes and the
calculation of Tenant's Share thereof. Landlord shall make all
its records relating to the calculation of Operating Expenses
available to Tenant or its agents, at reasonable times upon
reasonable advance notice at Landlord's Present Mailing Address
or such other location as Landlord shall specify. No such audit
and examination may be made by any person or entity employed in
whole or in part on a so-called contingency basis. Tenant shall
maintain the confidentiality of all information which it
receives as a result of such examination and shall not disclose
the same except in connection with litigation between Landlord
and Tenant. If Tenant fails to notify Landlord within such
90-day period
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that it determines to examine such statement, such statement
shall be deemed an account between Landlord and Tenant. In the
event Tenant has been overcharged for Operating Expenses and/or
Taxes and such overcharge is five percent (5%) or more of the
amount actually due from Tenant with respect to Operating
Expenses or Taxes, as the case may be, Landlord shall also pay
all reasonable costs incurred by Tenant in conducting such
audit. Tenant may pay any charge in respect of Operating
Expenses or Taxes under protest and if it shall be determined
that Tenant has overpaid then Landlord shall promptly refund
Tenant the amounts for which Tenant has overpaid.
ARTICLE IX
INDEMNITY AND PUBLIC LIABILITY INSURANCE
9.1 TENANT'S INDEMNITY. To the maximum extent this agreement may be made
effective according to law, Tenant agrees to indemnify and save harmless
Landlord from and against all claims of whatever nature arising from any
willful misconduct or negligence of Tenant, or Tenant's contractors,
licensees, invitees, agents, servants or employees, or arising from any
accident, injury or damage whatsoever caused to any person, or to the
property of any person, occurring after the commencement of construction
work by Tenant where Tenant has exclusive possession of the Premises,
and until the end of the Lease Term and thereafter, so long as Tenant is
in occupancy of any part of the Premises, within the Premises, or
arising from any accident, injury or damage occurring outside of the
Premises, where such accident, damage or injury results from a negligent
act or omission or the willful misconduct on the part of Tenant or
Tenant's agents, employees, contractors, or invitees. To the maximum
extent this agreement may be made effective according to law, Landlord
agrees to indemnify and save harmless Tenant from and against all claims
of whatever nature arising from any act, omission or negligence of
Landlord or Landlord's contractors, agents, servants or employees and
occurring in the Building or the Lot.
The foregoing indemnity and hold harmless agreements shall include
indemnity against all costs, expenses and liabilities incurred in or in
connection with any such claim or proceeding brought thereon, and the
defense thereof.
9.2 PUBLIC LIABILITY INSURANCE. Tenant agrees to maintain in full force and
effect from the date on which Tenant first enters the Premises for any
reason, throughout the Lease Term, and thereafter so long as Tenant is
in occupancy of any part of the Premises, a policy of Commercial General
Liability insurance on an occurrence basis in accordance with the
broadest form of such coverage as is available from time to time in the
jurisdiction in which the Premises are located. The minimum limits of
liability of such insurance shall be $3,000,000 combined single limit or
shall be for such higher limits, if directed by Landlord, as are
customarily carried in that area in which the Building is located upon
buildings
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such as the Building, but Landlord shall not require higher limits
during the first five years of the term of this Lease.
The policy shall also include, but shall not be limited to the following
extensions of coverage:
1. Contractual Liability, covering Tenant's liability assumed under
this Lease; and
2. Personal Injury Liability in the amount of $3 million annual
aggregate, expressly deleting the exclusion relating to
contractual assumptions of liability.
Tenant's insurance under this Section 9.2 may be provided by a primary
policy and a so-called umbrella policy.
Tenant further agrees to maintain a Workers' Compensation and Employer's
Liability Insurance policy. The limit of liability as respects
Employers' Liability coverage shall be no less than $5,000,000 per
accident.
Except for Workers' Compensation and Employers' Liability coverage,
Tenant agrees that Landlord (and such other persons as are in privity of
estate with Landlord as may be set out in notice from time to time) are
named as additional insureds on a primary basis. Further, all policies
shall be noncancellable and nonamendable with respect to Landlord and
Landlord's said designees without 30 days' prior written notice to
landlord. A duplicate original or a Certificate of Insurance evidencing
the above agreements shall be delivered to Landlord prior to entry on
the Premises.
9.3 TENANT'S RISK. To the maximum extent this agreement may be made
effective according to law, Tenant agrees to use and occupy the Premises
and to use such other portions of the Building as Tenant is herein given
the right to use at Tenant's own risk; and Landlord shall have no
responsibility or liability for any loss of or damage to fixtures or
other personal property of Tenant for any reason whatsoever. The
provisions of this Section shall be applicable from and after the
execution of this Lease and until the end of the Lease Term, and during
such further period as Tenant may use or be in occupancy of any part of
the Premises or of the Building. Nothing in this Section 9.3 shall act
to exculpate the Landlord from its negligence or willful misconduct or
the negligence or willful misconduct of its servants, agents or
employees.
9.4 INJURY CAUSED BY THIRD PARTIES. To the maximum extent this agreement may
be made effective according to law, Tenant agrees that Landlord shall
not be responsible or liable to Tenant, or to those claiming by, through
or under Tenant, for any loss or damage that may be occasioned by or
through the
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acts or omissions of persons occupying adjoining premises or any part of
the premises adjacent to or connecting with the Premises or any part of
the Building, or otherwise or for any loss or damage resulting to Tenant
or those claiming by, through or under Tenant, or its or their property,
from the breaking, bursting, stopping or leaking of electric cables and
wires, water, gas, sewer or steam pipes, and from roof leaks and the
like. Nothing in this Section 9.4 shall act to exculpate the Landlord
from its negligence or willful misconduct or the negligence or willful
misconduct of its servants, agents or employees.
9.5 The foregoing provisions of this Article IX (as well as any other
provisions dealing with indemnity and like by Tenant of Landlord) shall
be deemed to be modified in each case by the insertion in the
appropriate place of the language "except as otherwise provided in Mass.
GL. Ter. ED., c. 186, Section 15".
9.6 During the Lease Term, Landlord shall secure and carry (a) a policy of
commercial general liability insurance covering Landlord on an
occurrence basis in an amount not less than $5 million for claims based
on bodily injury (including death), personal injury and property damage
relating to the Building and the Lot; and (b) a policy of property
insurance covering the Building and the other improvements on the Lot,
not including the Tenant Work, for direct risk of physical loss, in an
amount equal to the full replacement cost of the Building or other
improvements on the Lot above footings and foundations. In the event
either party fails to maintain and enforce the policies of insurance
required hereunder, the party failing to maintain such policies shall be
deemed to have received the maximum insurance proceeds which would have
been payable under such policies had they been maintained for the
purposes required.
ARTICLE X
LANDLORD'S ACCESS TO PREMISES
10.1 LANDLORD'S RIGHT OF ACCESS. Upon reasonable advance notice to Tenant
(which notice need not be given in the case of an emergency), Landlord
shall have the right to enter the Premises at all reasonable business
hours and after normal business hours for the purpose of inspecting or
making repairs to the same, and upon reasonable advance notice to
Tenant, Landlord shall also have the right to make access available at
all reasonable hours to prospective or existing mortgagees or purchasers
of any part of the Building. Any such right of entry shall be exercised
in a manner so as to minimize interference with Tenant's use and
occupancy of the Premises.
10.2 EXHIBITION OF SPACE TO PROSPECTIVE TENANTS. Upon reasonable advance
notice to Tenant for a period of twelve (12) months prior to the
expiration of the Lease Term (as the same has been extended), Landlord
may have reasonable access to the Premises at all reasonable business
hours for the purpose of exhibiting the same to prospective tenants, and
may post suitable notice on the
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Building advertising the same for rent. Any such right of entry shall be
exercised in a manner so as to minimize interference with Tenant's use
and occupancy of the Premises. Landlord shall not be permitted to post
notices for re-letting on Wing One unless Tenant is vacating the
Premises except that Landlord may post notices for re-letting on retail
portions of Wing One pertaining to such retail portions at ground level.
ARTICLE XI
FIRE, EMINENT DOMAIN, ETC.
11.1 DAMAGE. In case during the term hereof the Premises shall be partially
damaged (as distinguished from "substantially damaged", as that term is
hereinafter defined) by fire or other casualty, the Landlord shall
forthwith proceed to repair such damage and restore the Premises to the
extent required of Landlord hereunder, to substantially their condition
at the time of such damage, but the Landlord shall not be responsible
for any delay which may result from Landlord's Force Majeure. In no
event shall any of Landlord's restoration obligations under this Article
XI pertain to any of Tenant's property or any alterations, changes or
additions made by Tenant or any fixtures or improvements or equipment
installed by Tenant.
11.2 SUBSTANTIAL DAMAGE. In case during the term hereof the Premises or the
Garage or access thereto shall be substantially damaged or destroyed by
fire or other casualty, the risk of which is covered by the Landlord's
insurance, this Lease shall, except as hereinafter provided, remain in
full force and effect, and the Landlord shall promptly after such damage
and the determination of the net amount of insurance proceeds available
to the Landlord, expend so much as may be necessary of such net amount
to restore the Premises to the extent required of Landlord hereunder, at
its cost (and not at Tenant's expense) (consistent, however, with zoning
laws and building codes then in existence), to substantially the
condition in which Premises, the Garage and access thereto were in at
the time of such damage, except as herein provided, but the Landlord
shall not be responsible for delay which may result from any cause
beyond the reasonable control of the Landlord. Should the net amount of
insurance proceeds available to the Landlord be insufficient to cover
the cost of restoring the Premises, in the reasonable estimate of the
Landlord, the Landlord may, but shall have no obligation to, supply the
amount of such insufficiency and restore the Premises with all
reasonable diligence or the Landlord may terminate this Lease by giving
notice to the Tenant not later than one hundred twenty (120) days after
the Landlord has determined the estimated net amount of insurance
proceeds available to Landlord and the estimated cost of such
restoration. In case of substantial damage or destruction, as a result
of a risk which is not covered by the Landlord's insurance, the Landlord
shall likewise be obligated to rebuild the Premises, all as aforesaid,
unless the Landlord, within ninety (90) day after the occurrence of such
event, gives written notice to the Tenant of the Landlord's election to
terminate this
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Lease. For the purposes hereof, any deductible or other self-insurance
by the Landlord shall be considered a part of the net insurance proceeds
available for restoration.
However, if the Premises, such access and the Garage shall be
substantially damaged or destroyed by fire, windstorm, or otherwise
within the last year of the Term of this Lease, as the same has been
extended, either party shall have the right to terminate this Lease,
provided that notice thereof is given to the other party not later than
sixty (60) days after such damage or destruction; provided, however,
that if Landlord has so exercised such option and if Tenant then has a
right under this Lease to extend the term of this Lease then Tenant may
render Landlord's exercise of such right of termination nugatory and of
no force or effect provided that Tenant gives Landlord notice exercising
such right of extension within ten (10) business days after its receipt
of Landlord's notice of termination; and further provided that if only
portions of the Premises have been damaged (on a floor by floor basis)
and the access to such portions of the Premises have not been damaged
Tenant shall have the right to occupy the portions of the Premises not
so damaged for the remainder of what would have been the term of this
Lease upon all the terms and conditions hereof but such occupancy must
be on a floor by floor basis for any floor not so damaged. If said right
of termination is exercised, this Lease and the term hereof shall cease
and come to an end as of the date of said damage or destruction.
Further, if the Premises, such access and the Garage shall be
substantially damaged or destroyed by fire or casualty and the Landlord
shall fail to commence the restoration thereof within sixty (60) days
after the date of such damage or destruction (such 60 day period to be
extended to the extent necessary for the Landlord to obtain insurance
proceeds and building permits to effect such restoration and to the
extent of any Landlord's Force Majeure), then Tenant may elect to
terminate this Lease by notice to Landlord given before the Landlord has
commenced such work and the termination shall take effect unless
Landlord commences such work within thirty (30) days after such notice;
and if after having commenced such restoration work, the Landlord shall
fail to substantially complete such work within 270 days after its
commencement, such 270-day period to be extended for up to ninety (90)
days to the extent of delays due to Landlord's Force Majeure, then
Tenant may elect to terminate this Lease by notice to Landlord given
before Landlord shall have so completed such work and such termination
shall take effect unless Landlord so completes such work within thirty
(30) days after such notice.
Unless this Lease is terminated as provided in this Section 11.2, or in
Section 11.4, if the Premises shall be damaged or destroyed by fire or
other casualty, then the Tenant shall (i) repair and restore all
portions of the Premises not required to be restored by Landlord
pursuant to this Article XI to substantially the condition which such
portions of the Premises were in at the time of such casualty, (ii)
equip the Premises with trade fixtures and all personal property
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necessary or proper for the operation of the Tenant's business, and
(iii) open for business in the Premises - as soon thereafter as
possible.
11.3 RENT ABATEMENT. In the event that the provisions of Section 11.1 or
Section 11.2 of this Article XI shall be become applicable, the Fixed
Rent and all other charges shall be abated or reduced proportionately
during any period in which, by reason of such damage or destruction,
there is substantial interference with the operation of the business of
the Tenant in or access to the Premises or use of the Garage, having
regard to the extent to which the Tenant in the exercise in good faith
and prudent business judgment may be required to discontinue its
business in the Premises, and such abatement or reduction shall continue
for the period commencing with such destruction or damage and ending on
the earlier to occur of (i) 120 days after the substantial completion by
the Landlord of such work of repair and/or reconstruction as the
Landlord is obligated to do or (ii) the Tenant having recommenced full
operations in the Premises. In the event of termination of this Lease
pursuant to this Article XI, this lease and the term hereof shall cease
and come to an end as of the date of such damage or destruction.
11.4 DAMAGE TO BUILDING. If, however, the Building shall be substantially
damaged or destroyed by fire or casualty and there shall be no
substantial damage to the Premises or the Garage (and/or any spaces in
the Garage) or access thereto, the Landlord shall promptly restore or
cause to be restored (consistent, however, with zoning laws and building
codes then in existence), the Building to substantially the condition
thereof at the time of such damage, unless the Landlord, within a
reasonable time after such loss, gives notice to the Tenant of the
Landlord's election to terminate this Lease. If Landlord shall give such
notice, then anything to this Article XI to the contrary notwithstanding
this Lease shall terminate as of the date of such notice with the same
force and effect as if such date were the date originally established as
the expiration date hereof.
11.5 DEFINITIONS OF SUBSTANTIAL DAMAGE. The terms "substantially damaged" and
"substantial damage", as said in this Article, shall have reference to
damage of such a character as cannot reasonably be expected to be
repaired or the Premises restored within sixty (60) days from the time
that such repair or restoration work would be commenced.
11.6 TAKING. If the Premises are taken by condemnation or right of eminent
domain then this Lease shall terminate as of the date that Tenant has
been deprived of possession. If, however, less than all the Premises has
been taken by eminent domain but there has been taken such portion
thereof as to render the balance (when reconstructed) unsuitable for the
purposes of the Tenant shall be taken by condemnation or right of
eminent domain, or if access to the Premises is materially, adversely
and permanently affected by such a taking or if more than ten (10)
parking spaces allocated to Tenant's use are taken by such condemnation
or right of eminent domain and Landlord promptly does not provide
alternative
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spaces to Tenant reasonably acceptable to Tenant, Tenant, upon written
notice to the Landlord, shall be entitled to terminate this lease,
provided that such notice is given not later than thirty (30) days after
the Tenant has been deprived of possession. For the purposes of this
Article, any deed or other transfer of title in lieu of any such taking
shall be treated as such a taking. Moreover, for the purposes of this
Article, such a taking of the Tenant's entire leasehold interest
hereunder in the Premises (or assignment or termination in lieu thereof)
shall be treated as a taking of the entire Premises, and in such event
the Tenant shall be treated as having been deprived of possession on the
effective date thereof. Should any part of the Premises be so taken or
condemned, and should this Lease not be terminated in accordance with
the foregoing provision, the Landlord covenants and agrees within a
reasonable time after such taking or condemnation, and the determination
of the Landlord's award therein, to expend so much as may be necessary
of the net amount which may be awarded to the Landlord in such
condemnation proceedings, in restoring the Premises to an architectural
unit as nearly like their condition prior to such taking as shall be
practicable. Should the net amount so awarded to the Landlord be
insufficient to cover the cost of restoring the Premises, as estimated
by the Landlord's architect, the Landlord may, but shall not be
obligated to, supply the amount of such insufficiency and restore the
Premises as above provided, with all reasonable diligence, or terminate
this Lease. Where the Tenant has not already exercised any right of
termination accorded to it under the foregoing portion of this
paragraph, the Landlord shall notify the Tenant of the Landlord's
election not later than ninety (90) days after the final determination
of the amount of the award.
11.7 RENT ABATEMENT. In the event of any such taking of the Premises, the
Fixed Rent and other charges or a fair and just proportion thereof,
according to the nature and extent of the damage sustained, shall be
suspended or abated until there has been restoration as aforesaid. If
there is a permanent taking of a portion of the Premises and this Lease
is not terminated, then there shall be a permanent abatement of the
fixed rent and other charges on a fair and equitable basis.
11.8 AWARD. Landlord shall have and hereby reserves and accepts, and Tenant
hereby grants and assigns to Landlord, all rights to recover for damages
to the Building and the Lot and any part thereof, and the leasehold
interest hereby created, and to compensation accrued or hereafter to
accrue by reason of such taking, damage or destruction, as aforesaid,
and by way of confirming the foregoing, Tenant hereby grants and
assigns, and covenants with Landlord to grant and assign to Landlord all
rights to such damages or compensation. Nothing contained herein shall
be construed to prevent Tenant from prosecuting in any condemnation
proceedings a claim for the value of any Tenant's usual trade fixtures
and other improvements installed in the Premises by Tenant at Tenant'
expense and for relocation expenses, provided that such action shall not
affect the amount of compensation otherwise recoverable by Landlord from
the taking authority.
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ARTICLE XII
LANDLORD'S REMEDIES
12.1 EVENTS OF DEFAULT. Any one of the following shall be deemed to an "Event
of Default":
A. Failure on the part of Tenant to pay Fixed Rent, additional rent
or other charges for which provision is made herein on or before
the date on which the same become due and payable and such
failure continues for ten (10) days after Landlord delivers to
Tenant notice of such default.
However, if (i) Landlord shall have sent to Tenant three (3)
notices of default in the payment of Fixed Rent in any calendar
year, even though the same shall have been cured and this Lease
not terminated; and (ii) during the calendar year in which said
notices of default have been sent by Landlord to Tenant, Tenant
thereafter shall default in the payment of Fixed Rent - the same
shall be deemed to be an Event of Default upon Landlord giving
Tenant written notice thereof, without the ten (10) day grace
period set forth above.
B. With respect to a non-monetary default under this Lease, failure
of Tenant to cure the same within thirty (30) days following
delivery of notice from Landlord to Tenant of such default or
such longer period of time as is reasonably required to cure
such default provided that Tenant commences to cure such default
with due diligence and pursues the cure thereof with all due
diligence. Notwithstanding the thirty (30) day cure period
provided in the preceding sentence, Tenant shall be obligated to
commence forthwith and to complete as soon as possible the
curing of such default; and if Tenant fails so to do, the same
shall be deemed to be an Event of Default.
However, if (i) Landlord shall have sent to Tenant three notices
of the same non-monetary default, in any calendar year, even
though the same shall have been cured and this Lease not
terminated; and (ii) during the calendar year in which said
notices of default have been sent by Landlord to Tenant, Tenant
thereafter shall default in the same or any similar non-monetary
matter - the same shall be deemed to be an Event of Default upon
Landlord giving the Tenant written notice thereof, and Tenant
shall have no grace period within which to cure the same.
C. The commencement of any of the following proceedings, with such
proceeding not being dismissed within sixty (60) days after it
has begun: (i) the estate hereby created being taken on
execution or by other process of law; (ii) Tenant being
judicially declared bankrupt or insolvent
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according to law; (iii) an assignment being made of the property
of Tenant for the benefit of creditors; (iv) a received,
guardian, conservator, trustee in involuntary bankruptcy or
other similar officer being appointed to take charge of all or
any substantial part of Tenant's property by a court of
competent jurisdiction, or (v) a petition being filed for the
reorganization of Tenant under any provisions of the Bankruptcy
Code now or hereafter enacted.
D. Tenant filing a petition for reorganization or for
rearrangements under any provisions of the Bankruptcy Code now
or hereafter enacted, and providing a plan for a debtor to
settle, satisfy or to extend the time for the payment of debts.
E. Execution by Tenant of an instrument purporting to assign
Tenant's interest under this Lease or sublet the whole or a
portion of the Premises to a third party without Tenant having
first obtained Landlord's prior express consent to said
assignment or subletting where such consent is required
hereunder.
F. The Tenant abandoning the Premises. For the purposes hereof
abandonment of the Premises is not merely a vacating of the
Premises but is abandonment as that term is legally defined and
Tenant's failure to perform its obligations hereunder.
12.2 REMEDIES. Should any Event of Default occur then, notwithstanding any
license of any former breach of covenant or waiver of the benefit hereof
or consent in a former instance, Landlord lawfully may, in addition to
any remedies otherwise available to Landlord, immediately or at any time
thereafter, and without demand or notice (but in accordance with
applicable laws), enter into and upon the Premises or any part thereof
in the name of the whole and repossess the same as of Landlord's former
estate, and expel Tenant and those claiming by, through or under it and
remove its or their effects (without breach of the peace) without being
deemed guilty of any manner of trespass, and without prejudice to any
remedies which might otherwise be used for arrears of rent or preceding
breach of covenant and/or Landlord may send notice to Tenant terminating
the Term of this Lease; and upon the first to occur of: (i) entry as
aforesaid; or (ii) the fifth (5th) day following the mailing of such
notice of termination, the Term of this Lease shall terminate, but
Tenant shall remain liable for all damages as provided for herein.
Tenant covenants and agrees, notwithstanding any termination of this
Lease as aforesaid or any entry or re-entry by Landlord, whether by
summary proceedings, termination, or otherwise, to pay and be liable for
on the days originally fixed herein for the payment thereof, amounts
equal to the several installments of Fixed Rent and other charges
reserved as they would become due under the terms of this
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Lease if this Lease had not been terminated or if Landlord had not
entered or re-entered, as aforesaid, and whether the Premises be relet
or remain vacant, in whole or in part, or for a period less than the
remainder of the Term, or for the whole thereof, but in the event the
Premises be relet by Landlord, Tenant shall be entitled to a credit in
the net amount of rent received by Landlord in reletting, after
deduction of all reasonable expenses incurred in reletting the Premises
(including, without limitation, repairs, costs, brokerage fees, and the
like but not remodeling costs), and in collecting the rent in connection
therewith. It is specifically understood and agreed that Landlord shall
be entitled to take into account in connection with any reletting of the
Premises all relevant factors which would be taken into account by a
sophisticated developer in securing a replacement tenant for the
Premises, such as, but not limited to, the first class quality of the
Building and the financial responsibility of any such replacement
tenant; and Tenant hereby waives, to the extend permitted by applicable
law, any obligation Landlord may have to mitigate Tenant's damages;
provided, however, that in the event of the termination of this Lease as
a result of the default of Tenant, Landlord shall use reasonable efforts
to re-let the Premises, but in using such reasonable efforts, Landlord
may take into account the factors set forth above and shall not be
obligated to give priority to the re-letting of the Premises over other
areas of the Building. As an alternative, at the election of Landlord,
Tenant will upon such termination pay to Landlord, as damages, such a
sum as at the time of such termination represents the present value
(calculated using 2% in excess of the so-called Federal Funds Rate) of
the amount of the excess, if any, of the total rent and other benefits
which would have accrued to Landlord under this Lease for the remainder
of the Lease Term if the lease terms had been fully complied with by
Tenant over and above the then fair market rental value of the Premises
for the balance of the Term. For purposes of this Article, if Landlord
elects to require Tenant to pay damages in accordance with immediately
preceding sentence, the total rent shall be computed by assuming that
Tenant's payments in respect of increases in Taxes and Operating
Expenses would be, for the balance of the unexpired term, the amount
thereof (if any), respectively, for the immediately preceding Tax Period
or Operating Year, as the case may be, payable by Tenant to Landlord.
In the event of any breach by Tenant of any of the agreements, terms,
covenants or conditions contained in this lease, Landlord shall be
entitled to enjoin such breach and shall have the right to invoke any
right or remedy allowed at law or in equity or by statute or otherwise
as though reentry, summary proceedings, and other remedies were not
provided for in this Lease.
Each right and remedy of Landlord and Tenant provided for in this Lease
shall be cumulative and shall be in addition to every other right or
remedy provided for in this Lease not now or hereafter existing at law
or in equity or by statute or otherwise, and the exercise or beginning
of the exercise by Landlord or Tenant of any one or more of the rights
or remedies provided for in this Lease or now or
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hereafter existing at law or in equity or by statute or otherwise shall
not preclude the simultaneous or later exercise by Landlord or Tenant of
any or all other rights or remedies provided for in this Lease or now or
hereafter existing at law or in equity or by statute or otherwise.
If any payment of rent or any other payment payable hereunder by Tenant
to Landlord or Landlord to Tenant shall not be paid within five (5) days
after the date when due, the same shall bear interest from the date when
the same was payable until the date paid at the lesser of (a) twelve
percent (12%) per annum, compounded monthly, or (b) the highest lawful
rate of interest which may be charged without violating any applicable
law; provided, however, that the first time in each calendar year that
Landlord shall determine to charge such interest, it shall give notice
thereof to Tenant and such interest shall be deemed waived if Tenant
makes payment of the same within ten (10) days after delivery of such
notice. Such interest payable by Tenant shall constitute additional rent
payable hereunder and be payable upon demand therefor by Landlord.
In the event of any litigation between Landlord and Tenant relating to
this Lease, the prevailing party in such litigation by final court
order, decree or judgment shall be entitled to be reimbursed by the
other party for the reasonable and actual legal costs and expenses
incurred by it in such litigation.
12.3 LANDLORD'S DEFAULT. Landlord shall in no event be in default in the
performance of any of Landlord's obligations hereunder unless and until
Landlord shall have failed to perform such obligations within thirty
(30) days, or such additional time as is reasonably required to correct
any such default, after notice by Tenant to Landlord properly specifying
wherein Landlord has failed to perform any such obligations; provided,
however, that in the event that any default of Landlord in the
performance of its obligations shall pose the immediate threat of injury
to person or damage to property, then Landlord shall use all reasonable
efforts to commence to cure such default as soon as reasonably possible
after it has received notice thereof from Tenant. In the event of a
default by Landlord after the expiration of such notice and cure period
which is of an emergency nature and which pertains to the maintenance of
the Premises the Tenant shall be entitled to perform such maintenance on
behalf of Landlord upon notice by Tenant to Landlord thereof, and if
Tenant shall perform such maintenance on behalf of Landlord then
Landlord shall promptly reimburse Tenant for the reasonable and actual
costs thereof, but Tenant shall have no right to set-off any amounts so
owed from Fixed Rent or other charges or rents due hereunder.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
13.1 EXTRA HAZARDOUS USE. Tenant covenants and agrees that Tenant will not do
or permit anything to be done in or upon the Premises, or bring in
anything or
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keep anything therein which shall increase the rate of insurance on the
Premises or on the Building or any part thereof above the standard rate
applicable to premises being occupied for the use to which Tenant has
agreed to devote the Premises; and Tenant further agrees that in the
event that Tenant shall do any of the foregoing, Tenant will promptly
pay to Landlord, on demand, any such increase resulting therefrom which
shall be due and payable as additional rent hereunder. Landlord will
hold harmless, defend and indemnify Tenant and its successors and
assigns against all claims, liabilities, loss, cost, and expenses,
including reasonable attorneys' fees, incurred as a result of (i) any
Hazardous Materials existing in, on or under the Premises, the Building
or the Lot as of the date of this Lease, and (ii) the release, storage
or disposal of Hazardous Materials in, on or under the Premises, the
Building or the Lot by Landlord, its agents, employees or contractors,
and the provision of this sentence shall survive the expiration or
earlier termination of this Lease. The term "Hazardous Materials" shall
mean any explosive, radioactive, hazardous wastes or hazardous
substances or substances defined as "hazardous substances" in any
federal, state or local laws, ordinance, regulation or governmental
requirement including, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C.
Sections 9601, et seq., Emergency Planning and Community Right-to-Know
Act, 42 U.S.C. Sections 11001, et seq.,
Massachusetts Oil and Hazardous
Material Release Prevention and Response Act, M.G.L. Chapter 21E, and
Massachusetts Hazardous Waste Management Act, M.G.L. Chapter 21C.
Landlord represents and warrants that, except as disclosed in the
Release Abatement Measure (RAM) Plan dated March 2001 by Xxxxx &
Xxxxxxx, Inc., it has no knowledge of the presence of any Hazardous
Materials on the Premises, the Building or the Lot. Tenant will hold
harmless, defend and indemnify Landlord and its successors and assigns
against all claims, liabilities, loss, costs and expenses, including
reasonable attorneys' fees, incurred as a result of the release, storage
or disposal of Hazardous Materials in, on or under the Building or the
Lot by Tenant, its agents, employees or contractors and the provisions
of this sentence shall survive the expiration or earlier termination of
this Lease.
13.2 WAIVER. Failure on the part of Landlord or Tenant to complain of any
action or nonaction on the part of the other, no matter how long the
same may continue, shall never be a waiver by Tenant or Landlord,
respectively, of any of the other's rights hereunder. Further, no waiver
at any time of any of the provisions hereof by Landlord or Tenant shall
be construed as a waiver of any of the other provisions hereof, and a
waiver at any time of any of the provisions hereof shall not be
construed as a waiver at any subsequent time of the same provisions. The
consent or approval of landlord or Tenant to or of any action by the
other requiring such consent or approval shall not be construed to waive
or render unnecessary Landlord's or Tenant's consent or approval to or
of any subsequent similar act by the other. Any consent required of the
Landlord in any provision of this Lease may be withheld by the Landlord
in its sole discretion acting in good
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faith unless the provision requiring such consent specifically states
that the Landlord shall not withhold such consent unreasonably.
No payment by Tenant or acceptance by Landlord of a lesser amount than
shall be due from Tenant to Landlord shall be treated otherwise than as
a payment on account. The acceptance by Landlord of a check for a lesser
amount with an endorsement or statement thereon, or upon any letter
accompanying such check that such lesser amount is payment in full,
shall be given no effect, and Landlord may accept such check without
prejudice to any other rights or remedies which Landlord may have
against Tenant. In no event shall Tenant ever be entitled to receive
interest upon, or any payments on account of earnings or profits derived
from any payments hereunder by Tenant to Landlord.
13.3 COVENANT OF QUITE ENJOYMENT. Tenant, subject to the terms and provisions
of this Lease, upon payment of the Fixed Rent and other charges due
hereunder and the observing, keeping and performing of all of the terms
and provisions of this Lease on Tenant's part to be observed, kept and
performed, shall lawfully, peaceable and quietly have, hold, occupy and
enjoy the Premises during the Term hereof, without hindrance or ejection
by any persons lawfully claiming under Landlord to have title to the
Premises superior to Tenant; the foregoing covenant of quiet enjoyment
is in lieu of any other covenant, expressed or implied; and it
understood and agreed that this covenant and any and all other covenants
of Landlord contained in this Lease shall be binding upon Landlord and
Landlord's successors only with respect to breaches occurring during
Landlord's and Landlord's successors' respective ownership of Landlord's
interests hereunder. Further, Tenant specifically agrees to look solely
to Landlord's then equity interest in the Lot and Building and available
insurance proceeds for recovery of any judgment from Landlord; it being
specifically agreed that Landlord (original or successor) shall never be
personally liable for any such judgment, or for the payment of any
monetary obligation to Tenant. The provision contained in the foregoing
sentence is not intended to, and shall not limit any right that Tenant
might otherwise have to obtain injunctive relief against Landlord or
Landlord's successors in interest, or any action not involving the
personal liability of Landlord (original or successor) to respond in
monetary damages from Landlord's assets other than Landlord's equity
interest aforesaid in the Lot and Building. With respect to any
services, including, without limitation, heat, air-conditioning or water
to be furnished by Landlord, or obligations to be performed by Landlord
or Tenant hereunder, such party shall in no event be liable for failure
to furnish or perform the same when (and the date for performance of the
same shall be postponed so long as such party is) prevented from doing
so by strike, lockout, accident, order or regulation of or by any
governmental authority, or failure of supply, or inability by the
exercise of reasonable diligence to obtain supplies, parts or employees
necessary to furnish such services, or perform such obligations or
because of war or other emergency, or for any cause beyond its
reasonable control, or for any cause due to any act or neglect of the
other or the
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other's servants, agents, employees, licensees, invitees or any person
claiming by, through or under the other; provided, however, that in no
event shall the foregoing excuse or delay such payment of rent or other
monies. In no event shall either party ever be liable to the other for
any indirect, special or consequential damages, including loss of
business, suffered by it from whatever cause.
In the event that due to the negligence or willful misconduct of
Landlord or Landlord's agents or employees, if there is any interruption
in utilities being supplied to the Premises and if as a result of such
interruption, Tenant is prevented from using all or any material portion
of the Premises for more than three (3) business days after notice
thereof from Tenant to Landlord, than from and after the end of such
3-business day period until the Premises (or such portion) is rendered
usable, Annual Fixed Rent and additional charges for Operating Expenses
allocable to the Premises or a just and proportionate part thereof shall
be abated.
13.4 NOTICE TO MORTGAGEE AND GROUND LESSOR. After receiving notice (which
notice contains an address for such holder or ground lessor from
Landlord) that any person, firm or other entity holds a mortgage which
includes the Premises as part of the mortgaged premises, or that is the
ground lessor under a lease with Landlord, as ground lessee, which
includes the Premises as part of the demised premises, no default or
termination notice from Tenant to Landlord shall be effective unless and
until a copy of the same is given to such holder or ground lessor, and
the curing of any of Landlord's defaults by such holder or ground lessor
shall be treated as performance by Landlord. For the purposes of this
Section 13.4, Section 13.5 or Section 13.14, the term "mortgage"
includes a mortgage on a leasehold interest of Landlord (but not one on
Tenant's leasehold interest).
The Tenant agrees that, in the event of foreclosure of any such mortgage
or deed of trust to which this Lease is subordinate (or deed or
assignment in lieu of foreclosure thereof), at the election of the
holder, provided such holder has agreed or does agree to recognize
Tenant's interest hereunder and not to disturb Tenant's occupancy of the
Premises, the Tenant shall attorn to such holder (and its successors and
assigns) as the successor holder of the Landlord's interest hereunder in
which case, subject to any applicable terms and provisions of any
written agreement between Tenant and such holder, this Lease shall
continue in effect all as if it had been a lease entered into directly
between Tenant and such holder (and its successors and assigns). The
foregoing shall be self-operative; however, the Tenant agrees, upon
receipt of written request so to do, to execute such instruments, if
any, as may reasonably be required in order to give effect to the
foregoing.
13.5 ASSIGNMENT OF RENTS. With reference to any assignment by Landlord of
Landlord's interest in this Lease, or the rents payable hereunder,
conditional in
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nature or otherwise, which assignment is made to the holder of a
mortgage or ground lease on property which includes the Premises. Tenant
agrees:
(i) that the execution thereof by Landlord, and the acceptance
thereof by the holder of such mortgage, or the ground lessor,
shall never be treated as an assumption by such holder or ground
lessor of any of the obligations of Landlord hereunder, unless
such holder or ground lessor shall, by notice sent to Tenant,
specifically otherwise elect; and
(ii) that, except as aforesaid, such holder or ground lessor shall be
treated as having assumed Landlord's obligations hereunder only
upon foreclosure of such holder's mortgage or the taking of
possession of the Premises, or in the case of a ground lessor,
the assumption of Landlord's position hereunder by such ground
lessor. In no event shall the acquisition of title to the
Building or Lot or any part thereof and the land on which the
same is located by a purchaser which, simultaneously therewith,
leases the same back to the seller thereof, be treated as an
assumption by operation of law or otherwise of Landlord's
obligations hereunder, but Tenant shall look solely to such
seller-lessee, and its successors from time to time in title,
for performance of Landlord's obligations hereunder. In any such
event, this Lease shall be subject and subordinate to the lease
to such seller, provided that such Seller executes, acknowledges
and delivers to Tenant a commercially reasonable non-disturbance
and attornment agreement reasonably concurrently with such
sale-leaseback. For all purposes such seller-lessee, and its
successors in title, shall be the Landlord hereunder unless and
until Landlord's position shall have been assumed by such
purchaser-lessor.
13.6 MECHANICS LIENS. Tenant agrees promptly to discharge of record (either
by payment or by the filing of the necessary bond, or otherwise) any
mechanics', materialmen's or other lien against the Premises and/or
Landlord's interest therein, which liens may arise out of any payment
due for, or purported to be due for, any labor, services, materials,
supplies or equipment alleged to have been furnished to or for Tenant
in, upon or about the Premises.
13.7 NO BROKERAGE. Each of Landlord and Tenant warrants and represents that
it has not dealt with any broker, in connection with the consummation of
this Lease, and in the event any claim is made against the other party
relative to dealings with brokers other than any broker named in Section
1.2, the warranting party shall defend the claim with counsel reasonably
approved by the other party and save harmless and indemnify the other
party on account of loss, cost or damage which may arise by reason of
any such claim. Landlord is not responsible for any fee due to Leggatt
XxXxxx.
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13.8 INVALIDITY OF PARTICULAR PROVISIONS. If any term or provision of this
Lease or the application thereof to any person or circumstance shall, to
any extent, be invalid or unenforceable, the remainder of this Lease, or
the application of such term or provision to persons or circumstances
other than those as to which it is held invalid or unenforceable, shall
not be affected thereby, and each term and provision of this Lease shall
be valid and enforceable to the fullest extend permitted by law.
13.9 PROVISIONS BINDING, ETC. Except as herein otherwise provided, the terms
hereof shall be binding upon and shall inure to the benefit of the
successors and assigns, respectively, of Landlord and Tenant and, if
Tenant shall be an individual, upon and to his heirs, executors,
administrators, successors and assigns. If two or more persons are named
as Tenant herein, each of such persons shall be jointly and severally
liable for the obligations of the Tenant hereunder, and landlord may
proceed against any one without first having commenced proceedings
against any other of them. The reference contained to successors and
assigns of Tenant is not intended to constitute a consent to assignment
by Tenant, but has reference only to those instances in which Landlord
may later give consent to a particular assignment as required by those
provisions of Article V hereof.
13.10 RECORDING. Tenant agrees not to record the within Lease, but each party
hereto agrees, on the request of the other, to execute a so-called
notice of lease in form recordable and complying with applicable law and
reasonably satisfactory to Landlord's and Tenant's attorneys. (The form
annexed hereto as Exhibit G is so satisfactory). In no event shall such
document set forth the rent or other charges payable by Tenant under
this Lease, and any such document shall expressly state that it is
executed pursuant to the provisions contained in this Lease and is not
intended to vary the terms and conditions of this Lease.
13.11 NOTICES. Whenever, by the terms of this Lease, notice shall or may be
given either to Landlord or to Tenant, such notice shall be in writing
and shall be delivered in hand with a written acknowledgment of receipt
or sent by registered or certified mail, postage prepaid or delivered by
recognized overnight or same day courier or by telecopy provided such
notice concurrently sent by mail or overnight service:
If intended for Landlord, addressed to landlord
at the address set forth in Section 1.2 of this
Lease (or to such other address or addresses as
may from time to time hereafter be designated by
Landlord by like notice). Fax No.: (781)
769-2250.
If intended for Tenant, addressed to Tenant at
the address set forth in Section 1.2 of this
Lease prior to Tenant's occupancy of the
Premises and thereafter addressed to Tenant at
the Premises, (or to such other
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address or addresses as may from time to time
hereafter be designated by Tenant by like
notice). Fax No.: (000) 000-0000
All such notices shall be effective when delivered in hand, or on the
earlier of receipt or refusal.
13.12 WHEN LEASE BECOMES BINDING. Employees or agents of Landlord have no
authority to make or agree to make a lease or any other agreement or
undertaking in connection herewith. The submission of this document for
examination and negotiation does not constitute an offer to lease, or a
reservation of, or option for, the Premises, and this document shall
become effective and binding only upon the execution and delivery hereof
by both Landlord and Tenant. All negotiations, considerations,
representations and understandings between Landlord and Tenant are
incorporated herein and may be modified or altered only by written
agreement between Landlord and Tenant, and no act or omission of any
employee or agent of Landlord shall alter, change or modify any of the
provisions hereof.
13.13 PARAGRAPH HEADINGS. The paragraph headings throughout this instrument
are for convenience and reference only, and the words contained therein
shall in no way be held to explain, modify, amplify or aid in the
interpretation, construction or meaning of the provisions of this Lease.
13.14 RIGHTS OF MORTGAGEE/GROUND LEASE. It is understood and agreed that the
rights and interests of Tenant under this Lease shall be subject and
subordinate to any mortgages or deeds of trust that may hereafter be
placed upon the Building and/or the Lot, and/or any part of the
foregoing, and to any and all advances to be made thereunder, and to the
interest thereon, and all renewals, modifications, replacements and
extensions thereof, if the mortgagee or trustee named in said mortgages
or deeds of trust shall elect by notice delivered to Tenant to subject
and subordinate the rights and interest of Tenant under this lease to
the lien of its mortgage or deed of trust; it is further agreed that any
mortgagee or trustee may elect to give the rights of interest of Tenant
under this Lease priority over the lien of its mortgage or deed of
trust. In the event of either such election, and upon notification by
such mortgagee or trustee to Tenant to that effect, the rights and
interest of Tenant under this Lease shall be deemed to be subordinate
to, or to have priority over, as the case may be, the lien of said
mortgage or deed of trust, whether this Lease is dated prior to or
subsequent to the date of said mortgage or deed of trust. Tenant shall
execute and deliver whatever instruments reasonably may be required for
such purposes. It shall be a condition to any subordination of this
Lease to any mortgage or deed of trust or ground lease encumbering the
Building or Lot that Landlord shall obtain for Tenant an agreement (a
"Non-Disturbance Agreement") from the holder thereof (each such party, a
"Holder") which provides that (i) if any such Holder forecloses or takes
a deed in lieu of foreclosure or otherwise exercises its rights under
its mortgage or deed of trust or
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ground lease or (ii) if such Holder otherwise acquires Landlord's
interest in this Lease, such Holder shall recognize Tenant's rights
under this Lease, shall not disturb Tenant's occupancy of this Premise
under this Lease and, subject to the terms and conditions of such
agreement, shall assume Landlord's obligations under this Lease.
This Lease is subject and subordinate to a certain Ground Lease (the
"Ground Lease") between
Massachusetts Turnpike Authority as groundlessor
("Groundlessor") and Landlord as groundlessee, a copy of which has been
provided by Landlord to Tenant (the "Ground Lease"). The Ground Lease
may be amended from time to time by Landlord, and this Lease shall be
subject and subordinate to the Ground Lease as so amended provided that
any such amendment does not materially adversely affect the rights and
obligations of the Tenant hereunder. As soon as reasonably possible,
Landlord shall obtain from the Groundlessor a subtenant non-disturbance
agreement in the form annexed to the Ground Lease (a copy of which is
annexed as Exhibit H hereto) for the benefit of Tenant and Tenant agrees
to execute and deliver the same (for convenience purposes Tenant may be
required to execute and deliver the same prior to its execution and
delivery by Groundlessor). If Landlord does not obtain such
non-disturbance agreement within sixty (60) days after the date of this
Lease, then Tenant may terminate this Lease by notice to such effect to
Landlord and if Tenant so exercises such right of termination and
Landlord does not deliver such non-disturbance agreement within ten days
thereafter, then this Lease shall terminate without further recourse to
the parties. Wherever any consent of Groundlessor is required in
connection with any consents to be made by Landlord hereunder, the
failure of Groundlessor to give such consent shall be deemed to be a
reason for the withholding of such consent by Landlord.
13.15 STATUS REPORT. Recognizing that both parties may find it necessary to
establish to third parties, such as accountants, banks, mortgagees or
the like, the then current status of performance hereunder, either
party, on the request of the other made from time to time, will promptly
furnish to Landlord, or the holder of any mortgage encumbering the
Premises, or to Tenant, as the case may be, a statement of the status of
any factual matter pertaining to this Lease, including, without
limitation, acknowledgments to the best of such party's knowledge, that
(or the extent to which) each party is in compliance with its
obligations under the terms of this Lease.
13.16 TENANT'S FINANCIAL CONDITION. Upon Landlord's demand, which may be made
only if required by lender or prospective lender to Landlord, and then
no more often than once per year, Tenant shall furnish to Landlord, at
Tenant's sole cost and expense, then current financial statements of
Tenant and its guarantor (if any), audited (if audited statements have
been recently prepared on behalf of Tenant or such guarantor) or
otherwise certified as being true and correct by the chief financial
officer of Tenant or such guarantor, as the case may be. So long as
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Tenant is a so-called public company, then Landlord waives the
provisions of this Section 13.16.
13.17 NO PARTNERSHIP. The relationship of the parties hereto is that of
landlord and tenant, and partnership, joint venture or participation is
hereby created.
13.18. HOLDING OVER. Any holding over by Tenant after the expiration of the
Lease Term shall be treated as a tenancy at sufferance at 1.5 times the
Fixed Rent and 10% of the additional rent herein provided to be paid
during the last twelve (12) months of the Lease Term (prorated on a
daily basis) and shall otherwise be on the terms and conditions set
forth in this Lease, as far as applicable.
13.19 NON-SUBROGATION. Insofar as, and to the extent that, the following
prevision may be effective without invalidating or making it impossible
to secure insurance coverage obtainable from responsible insurance
companies doing business in the locality in which the premises are
located (even though extra premium may result therefrom): Landlord and
Tenant mutually agree that, with respect to any hazard which is covered
by insurance then being carried by them, or which could have been
covered by a so-called All Risk policy, the one carrying (or who could
have carried) such insurance and suffering such loss releases the other
of and from any and all claims with respect to such loss; and they
further mutually agree that their respective insurance companies shall
have no right of subrogation against the other on account thereof.
13.20 GOVERNING LAW. This Lease shall be governed exclusively by the
provisions hereof and by the laws of the Commonwealth of Massachusetts
as the same may from time to time exist.
13.21 DEFINITION OF ADDITIONAL RENT. Without limiting any other provision of
this Lease, it is expressly understood and agreed that Tenant's
participation in Taxes, Operating Expenses, and all other charges which
Tenant is required to pay hereunder, together with all interest and
penalties that may accrue thereon, shall be deemed to be Additional
Rent, and in the event of non-payment thereof by Tenant, Landlord shall
have all of the rights and remedies with respect thereto as would accrue
to Landlord for non-payment of Fixed Rent. Tenant's failure to object to
any statement, invoice or billing rendered by Landlord within a period
of three hundred sixty five (365) days after Tenant's receipt thereof
shall constitute Tenant' acquiescence with respect thereto and shall
render such statements, invoice or billing on account between landlord
and Tenant.
13.22 EXTENSION OPTION. Upon and subject to the following terms and
conditions, Tenant shall have the right to extend the term of this Lease
for two consecutive periods of five (5) years each provided that (i)
Tenant itself occupies at least 50% of the Premises, and (ii) it shall
be a condition to the extension for the second such period that Tenant
shall have timely and properly extended the term of this Lease
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for the first such period, and (iii) at the time of its exercise of any
such extension and at the commencement of such extension period Tenant
shall not be in default under this Lease beyond the expiration of
applicable notice and cure periods, and (iv) Tenant shall give notice of
such extension at least twelve (12) months prior to the then expiration
of the term of this Lease. Provided that the Tenant has timely and
properly complied with all the foregoing conditions, then, without the
necessity of any further action, the term of this Lease shall be
extended for such five-year extension period on all the terms and
conditions hereof except that there shall be no further rights of
extension after Tenant extends for the second five-year period and for
and with respect to each such extension period annual Fixed Rent shall
be equal to the greater of (i) the annual Fixed Rent immediately in
effect prior to such extension or (ii) an amount an equal to 87.5% of
the then Fair Market Rental Value of the Premises.
"Fair Market Rental Value" shall be determined based on the use of the
Premises as first-class professional space utilizing properties of a
similar character in comparable first-class office buildings within the
City of Boston. At least sixty (60) days prior to the last day upon
which the Tenant may give notice exercising such option Tenant may
request that Landlord designate the annual Fixed Rent payable in respect
of the extension period and Landlord shall designate such rent payable
during the extended term in question within thirty days thereafter but
Landlord shall not be required to make such designation more than
seventeen (17) months prior to the commencement of the extended term in
question. If Tenant disagrees with Landlord's designation then Tenant
shall have the right in its notice exercising such extension to make a
request of Landlord for a broker determination (the "Broker
Determination") of the Fair Market Rental Value for such extended term
which Broker Determination shall be made in the manner set forth in
Exhibit D. If Tenant fails timely to request the Broker Determination
then the term of the Lease shall be extended for the applicable extended
term and the Fair Market Rent Value for the Premises for such extended
term shall be equal to that designated by Landlord.
13.23 RIGHT OF FIRST OFFER. If at any time during the term of this Lease while
the Tenant is not in default under this lease beyond applicable notice
and/or cure periods and while Tenant itself occupies at least that
portion of the Premises equivalent to at least 3 floors in either Wing
One or Wing Two of the Building, additional space of the Building
devoted to an Office Use shall become available for leasing (this right
shall not apply to the initial leasing thereof but shall be a so-called
second generation right), Landlord shall notify Tenant thereof setting
forth in such notice the terms and conditions upon which Landlord shall
be willing to lease such space to Tenant and by notice from Tenant to
Landlord given within ten (10) business days thereafter Tenant may elect
one of the following:
(i) it may accept such offer in which event Landlord and Tenant
shall enter into an amendment to this Lease adding the
additional space to the
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Premises demised under this Lease in accordance with the terms
and conditions offered by Landlord and in the case of space so
offered which is no more than 5,000 square feet of rentable area
the offer shall be made for a term which is coterminous with the
term of this Lease and if more than 5,000 square feet then for a
term which shall be the longer of the then term remaining under
this Lease or five years; or
(ii) it may reject such offer (and Tenant's failure to respond within
such ten (10) business day period shall be deemed to be a
rejection of such offer) in which case Landlord may lease such
offered space upon such terms and conditions as Landlord shall
determine; or
(iii) it may give to Landlord a counteroffer setting forth the terms
and conditions upon which Tenant is willing to accept such the
leasing of such Space and if Tenant makes a counteroffer then
Landlord may elect to (i) accept such counteroffer in which case
Landlord and Tenant shall enter into an amendment to this Lease
adding the additional space to this lease in accordance with the
terms of such counteroffer or (ii) it may elect to lease such
space to any third party but upon terms and conditions which are
not substantially more advantageous to such third party than
those contained in the Tenant's counteroffer. If the space being
offered is the V&C premises consisting of approximately 40,000
square feet of rentable area then Tenant may elect not to lease
all of the V&C premises but must lease the same in at least
whole floor increments starting with the top-most floor and
working down, and in its offer to Tenant, Landlord shall set
forth the Annual Fixed Rent which Landlord is prepared to accept
for a leasing of less than all of the offered V&C premises.
If at the time that Landlord makes an offer to Tenant to lease
to Tenant any additional space of more than 5,000 square feet
there is less than five (5) years remaining in the term of this
Lease, then as a condition to Tenant's acceptance of such offer
or making a counteroffer, Tenant must exercise any remaining
option so that there shall be at least five (5) years remaining
in the term of this Lease and if there are insufficient options
then Tenant shall have no right to lease the offered space and
Landlord need not make such offer
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WITNESS the execution hereof, under seal, in any number of counterparts,
each of which counterparts shall be deemed an original for all purposes, as of
the day and year first above written.
GATEWAY DEVELOPERS LLC
By: Cornerstone 1999, LLC, its Manager
By:
------------------------------
Its Manager
Hereunto duly authorized
LANDLORD
XXXXX, INC.
By:
------------------------------
Its
Hereunto duly authorized
TENANT
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EXHIBIT D
BROKER DETERMINATION OF FAIR MARKET RENTAL VALUE
DEFINITION OF FAIR MARKET RENTAL VALUE:
"Fair Market Rental Value" shall be computed as of the date in question,
and shall be the then current annual rental value, including provisions for
subsequent increases and other adjustments, of the Premises in their then
condition, upon and subject to the terms and conditions of this Lease, except
for annual Fixed Rent. In determining Fair Market Rental Value, all relevant
factors shall be taken into account and given effect (the parties agreeing that
any property outside the City of Boston is irrelevant for these purposes).
Tenant's notice shall specify whether Tenant requests a quotation of Fair Market
Rental Value for the Premises "as-is," and/or a quotation of Fair Market Rental
Value including a tenant improvement allowance. If Tenant requests that
Landlord's quotation include a tenant improvement allowance Landlord's quotation
shall include a tenant improvement allowance, in an amount (if any) which is
consistent with Landlord's then current practices and not less than 75% of the
then "market".
Where in the Lease to which this Exhibit is attached provision is made
for a Broker Determination of Fair Market Rental Value, the following procedures
and requirements shall apply:
1. TENANT'S REQUEST. Tenant shall send a notice to Landlord in
accordance with the applicable section of the Lease, requesting
a Broker Determination of the Fair Market Rental Value, which
notice to be effective must (i) make explicit reference to the
Lease and to the specific section of the Lease pursuant to which
said request is being made, (ii) include the name of a broker
selected by Tenant to act for Tenant, which broker shall be
affiliated with a major Boston commercial real estate brokerage
firm selected by Tenant and which broker shall have at least ten
(10) years experience dealing in properties of a nature and type
generally similar to the Building located in the City of Boston,
and (iii) explicitly state that Landlord is required to notify
Tenant within thirty (30) days of an additional broker selected
by Landlord.
2. LANDLORD'S RESPONSE. Within thirty (30) days after Landlord's
receipt of Tenant's notice requesting the Broker Determination
and stating the name of the broker selected by Tenant, Landlord
shall give written notice to Tenant of Landlord's selection of a
broker having at least the affiliation and experience referred
to above.
D-1
3. SELECTION OF THIRD BROKER. Within ten (10) days thereafter the
two (2) brokers so selected shall select a third such broker
also having at least the affiliation and experience referred to
above.
4. RENTAL VALUE DETERMINATION. Within thirty (30) days after the
selection of the third broker, the three (3) brokers so
selected, by majority opinion, shall make a determination of the
Fair Market Rental Value of the Premises for the Extended Term
or the Expansion Space, as the case may be. Such Fair Market
Rental Value determination (x) may include provision for annual
increases in rent if so determined, (y) shall take into account
the as-is condition of the Premises, and (z) shall take account
of, and be expressed in relation to, the payment in respect of
taxes and operating costs and provisions for paying for
so-called tenant electricity as contained in the Lease. The
brokers shall advise Landlord and Tenant in writing by the
expiration of said thirty (30) day period of the Fair Market
Rental Value as so determined.
5. RESOLUTION OF BROKER DEADLOCK. If the Brokers are unable to
agree at least by majority on a determination of Fair Market
Rental Value, then the brokers shall send a notice to Landlord
and Tenant by the end of the thirty (30) day period for making
said determination setting forth their individual determinations
of Fair Market Rental Value, and the highest such determination
and the lowest such determination shall be disregarded and the
remaining determination shall be deemed to be the Fair Market
Rental Value.
6. COSTS. Each party shall pay the costs and expenses of the broker
selected by it and each shall pay one half (1/2) of the costs
and expenses of the third broker.
7. FAILURE TO SELECT BROKER OR FAILURE OF BROKER TO SERVE. If
Tenant shall have requested a Broker Determination and Landlord
shall not have designated a broker within the time period
provided therefor above and such failure shall continue for more
than ten (10) days after notice thereof, then Tenant's broker
shall alone make the determination of the Fair Market Rental
Value in writing to Landlord and Tenant within thirty (30) days
after the expiration of Landlord's right to designate a broker
hereunder. If Tenant and Landlord have both designated brokers
but the two brokers so designated do not, within a period of ten
(10) days after the appointment of the second broker, agree upon
and designate the third broker willing so to act, the Tenant,
the Landlord or either broker previously designated may request
the Greater Boston Real Estate Board, Inc. to designate the
third broker willing so to act and a broker so appointed shall,
for all purposes, have the same standing and powers as though he
had been seasonably appointed by the brokers first appointed. In
case of the inability or refusal
D-2
to serve of any person designated as a broker, or in case any
broker for any reason ceases to be such, a broker to fill such
vacancy shall be appointed by the Tenant, the Landlord, the
brokers first appointed or the said Greater Boston Real Estate
Board, Inc., as the case may be, whichever made the original
appointment, or if the person who made the original appointment
fails to fill such vacancy, upon application of any broker who
continues to act or by the Landlord or Tenant such vacancy may
be filled by the said Greater Boston Real Estate Board, Inc.,
and any broker so appointed to fill such vacancy shall have the
same standing and powers as though originally appointed.
D-3
EXHIBIT E
Parking shall be provided on the following floors of the Garage:
P-1: The entire floor will be for Tenant and V&C for reserved 24/7
spaces. If all of Tenant's 75 reserved 24/7 spaces cannot be accommodated on P-1
together with all of the V&C's reserved 24/7 spaces then Tenant shall have a pro
rata share thereof based on square footage and at least 25 of Tenant's spaces
shall be next to or very near the Wing Two elevator serving the Tenant's
Premises in Wing Two.
P-2: Any 24/7 reserve not accommodated on P-1 will be accommodated on
P-2 and at least five visitor spaces will be placed next to or very near the
elevators for Wing One.
P-2 and P-3: The remaining allocation of spaces shall be identified
either as Tenant or V&C spaces and numbered spaces located under each tenant's
respective wings as closely as reasonably possible.
The allocation of compact to normal size spaces should be the same for
both Tenant and V&C for all spaces on all parking levels and the goal is to have
no more than 30% of all spaces as compact spaces but in any case there shall be
no more than 40% of all spaces as compact spaces.
Nominal size spaces are being designed to be 8 1/2 feet by 18 feet and
compact size spaces 7 1/2 feet by 16 feet. So long as Tenant leases more than
50% of the office space of the Building, any change in the management company
for the Garage (after the initial manager) shall require Tenant's prior written
consent, which Tenant shall not unreasonably withhold or delay.
E-1
EXHIBIT F
The air conditioning system shall be designed to provide 20 CFM per
person at one person/150 square feet; for cooling: 78 degrees dry bulb inside at
88 degrees Fahrenheit dry bulb outside; and for heating: 72 degrees Fahrenheit
inside at 9 degrees outside. Landlord represents and warrants that it has been
informed by its engineer that the foregoing standard complies with all
applicable codes.
F-1
